Pixie Dust and Cheney’s Assassination Squads
A number of people, in their discussion of Sy Hersh’s revelation that Dick Cheney directed assassination squads, look to EO 12333 for some guidance on whether such assassination squads are legal or not.
Here’s attytood:
By the way, in case there’s any ambiguity on the subject, President Gerald Ford in 1975 signed an executive order that said this: : "No employee of the United States Government shall engage in, or conspire to engage in, political assassination." It’s been upheld by every subsequent president. Apparently vice presidents are another matter.
And here’s Scott Horton:
The practice of targeted killings is controlled by Executive Order 12333, issued by President Reagan in 1981, which provides “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” There are two exceptions to this rule. One is that as a basic principle of the law of armed combat, it is permitted to strike against the command-and-control apparatus (including both political and military leaders) of a hostile force in connection with armed conflict. The other is that the President may, by special action, authorize such an operation. The operation that Hersh describes almost certainly would have required a presidential finding which concluded that it was in the nation’s national security interest, and authorized the operation to go forward. Hersh suggests that the entire process was delegated to the Vice President, however, which may have required a more extensive modification of E.O. 12333. President Bush issued a complete revamping of EO 12333 on July 30, 2008—and he directed that the details of his revision be withheld from the public. The publicly disclosed text of Bush’s action in 2008 focus on a structural reorganization, bolstering the authority of the intelligence czar, largely at the expense of the director of central intelligence. There has been continuous speculation that Bush also made changes in the operational guidelines on this occasion, or perhaps in an earlier secret order or finding.
Of course, both these discussions assume Executive Orders mean what they say.
But we know they don’t, necessarily. We know that the OLC told George Bush (almost certainly back in 2001 when he was first inventing excuses for his warrantless wiretap program) that:
An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
In fact, we have reason to believe that EO 12333–the EO that prohibits assassinations–is the EO that Bush and OLC had in mind when they first invented pixie dust (the practice of changing EOs without making any public record of the change). Here’s what Sheldon Whitehouse said when he first exposed Bush’s practice of pixie dust:
Bear in mind that the so-called Protect America Act that was stampeded through this great body in August provides no – zero – statutory protections for Americans traveling abroad from government wiretapping. None if you’re a businesswoman traveling on business overseas, none if you’re a father taking the kids to the Caribbean, none if you’re visiting uncles or aunts in Italy or Ireland, none even if you’re a soldier in the uniform of the United States posted overseas. The Bush Administration provided in that hastily-passed law no statutory restrictions on their ability to wiretap you at will, to tap your cell phone, your e-mail, whatever.
The only restriction is an executive order called 12333, which limits executive branch surveillance to Americans who the Attorney General determines to be agents of a foreign power. That’s what the executive order says.
But what does this administration say about executive orders?
An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
"Whenever (the President) wishes to depart from the terms of a previous executive order," he may do so because "an executive order cannot limit a President." And he doesn’t have to change the executive order, or give notice that he’s violating it, because by "depart(ing) from the executive order," the President "has instead modified or waived it."
So unless Congress acts, here is what legally prevents this President from wiretapping Americans traveling abroad at will: nothing. Nothing.
That was among the most egregious flaws in the bill passed during the August stampede they orchestrated by the Bush Administration – and this OLC opinion shows why we need to correct it.
Though Whitehouse didn’t say as much when he first exposed Bush’s pixie dust in 2006, he strongly suggested that Bush had pixie dusted away the limitations on wiretapping Americans contained in EO 12333.
Now, that doesn’t mean that Bush also pixie dusted the prohibitions on assassinations–"modified" the EO without telling us.
But it also means there is no reason we should point to EO 12333 as if it means what it says–particularly not with the Bush Administration’s well-publicized practice of taking out alleged members of Al Qaeda with predator drone strikes for years.
It’s all very nice that every President since Ford has upheld the prohibition on assassination in EO 12333. But in the era of pixie dust, that doesn’t mean Bush also upheld it, even if it looks like he did.
The Unitary Executive is, then, by definition that branch of government whose power and actions cannot be restrained.
Let’s see: Can Congress claim that it is not restrained by the laws which it passes?
Can the Courts claim that they are not restrained by their own judgments?
Even the perception of absolute power corrupts absolutely.
IT IS UP TO EACH OF US AS INDIVIDUALS TO STOP THIS
Sorry for the shouting, you and I have to do this Now!
WE ALL KNOW WHAT EVIL HAPPENED.
The Bush-Cheney Administration is the greatest threat to our democracy that we’ve had. It is an ongoing threat because it is an internal threat, the precedents are there, and have not been denounced by Congress or Obama in any effective way.
Hersh added: “Eight or nine neoconservatives took over our country.“
Mondale said that the precedents of abuse of vice presidential power by Cheney would remain “like a loaded pistol that you leave on the dining room table.”
“Top editors
passed the message to investigative reporters not to “pick holes” in what Bush was doing.
Violations of the Bill of Rights happened in the plain sight of the public. It was not only tolerated, but Bush was re-elected.”
WE Cannot Wait For The National Media
To Do This For Us.
It is up to us as individuals to get justice.
WE HAVE TO DO IT OURSELVES!
SIGN THE PETITION…. Pass it
http://AngryVoters.org
Individuals:
Sign The Petition To Prosecute those in the Bush Administration that violated Federal Laws. Have your organization pass this url to members with a recommendation to sign.
Groups:
Endorse the Joint Letter To Attorney General Holder asking him to appoint a Special Prosecutor for Bush, Cheney and appointees who approved TORTURE and violated other Federal Laws
http://AngryVoters.org
SIGN THE PETITION…. Pass it on.
.
I’ve got to say, I’m not a fan of pre-emptive apologies. If you’re sorry for shouting in line two of your comment, you might just want to stop there for a minute and come back when your “caps lock” key is unstuck.
I’d go farther and say there is every reason to point to Cheney’s remarks and say it DOESN’T mean what it says — at least not any more.
I am not sure that any killing by Bush/Cheney would have ever been considered (by them) an “assassination”. We were, after all, in the middle of a conveniently named GWOT and Congress did this:
And Scott Horton tells us this:
In fact, I don’t see anything that tells me that Cheney’s Kill Force One isn’t busy in Pakistan right now working for Joe Biden.
It’s not Darth Cheney’s interpretation of the law that counts. Jeffrey Dahmer thought he was befriending little boys. White supremacist plotters think their planned violence will rid the body politic of the virus of liberalism and the bacterial plagues of people with different color skin. Nazis bureaucrats thought they were “interpreting” the law, not aiding and abetting the murder of millions.
But the law does not speak for itself, any more than the Rosetta Stone. We are dependent on its interpreters, who have too long been silent and appear to want to stay that way.
pixie dust, If you do not know what really happened and it is secret why are we talking about it?
You should be thanking George W for protecting you from further attacks on our soil.
Again you do not know what the Navy seals are doing right now to protect you from harm.
No one know if George W did anything wrong just conjecture.
“pixie dust, If you do not know what really happened and it is secret why are we talking about it?”
1. If you suspect someone is lying to you and you have evidence that someone is lying to you and that lie might cost you your life, why would you make any further inquiry?
2. Thanking GWB? For making a billion muslims hate our guts?
3. Nor do we know right now Cheney’s assasins are snuffing a journalist – or nurse.
4. I know, you know, we all know that GWB authorized torture. He stripped from all of us patriotic Americans the status of being the good guy – forever. I am furious with him, and a little irritated with you for not seeing what is so obvious.
who said you could play with my troll ???
(wink)
How about a constitutional amendment stating that signing statements have to be sent to congress for ratification? I think we still have the right to amend the constitution, don’t we?
I would suggest a constitutional amendment to the effect that signing statements can’t be invisible. They must be publicized in a timely and open manner to the bodies whose legislation or rules or procedures or policies have been qualified by the signing statement.
sorry, I am of the opinion executive orders are worth the paper they’re written on as far as law
they can be used to tell agencies what to prosecute and what not to prosecute but the president has NO authority to make law
that’s why we have a legislative branch of government and the president is not part of it
nal
Executive orders are worth exactly as much as congress lets them be worth. They are not law. At the most they are directives the the employess of the president. Is there a law that says it’s illegal not to follow EO’s – I sort of doubt it.
When congress has not power, has sold thier power, or refuses to use their constitutional power, this is what you get. EOs prancing around like gay lawyers in a german night club.
Congress needs to pass some legislating defining the reach of EO’s and laying down specific proceedures for the enacting / decomissioning and notifications related to them.
But then the president and congress all seem to be working for the same people these days, and it hasn’t looked like you and me for a while now. I’m still hopeful, but an fully prepared to accept that this democracy has been defunct for some time now if there is no evidence to the contrary in this term of office.
this is the way I see it too but as I said, I am not a lawyer
No, not really, EO’s have more authority. But as we’ve said many times, the law is only as good as those who enforce it. At least with good laws on the books, you only need a competent executive with will to use them; you don’t also need a competent legislature with the will to pass them.
EO’s are within the sole power of the president to write, revise and rescind. The idea that they could have binding legal effect without being written and published is ludicrous.
It’s the sort of thing a Cheney or a Chinese bureaucrat would love, because it absolves the writer from following them, but allows them to be used as bludgeons against the unwary. At a minimum, it forces their leaders to ask the writer for permission, another Cheney past time in dealing with the bureaucracy he detested.
The idea that [executive orders] could have binding legal effect without being written and published is ludicrous.
I’d say the same thing about opinions of the Office of Legal Counsel.
So are all executive orders (whatever name they’re given; each administration seems to have had its own term) published? Are any of them classified? If so, who’s responsible for assuring that those bound by them are aware of them, without informing the rest of us?
George W did not make the muslim nation hate us, that was us americans. We have been in their countries for decades. They have told us to leave and we do not. We discovered oil there for them back in the late 40’s.
I do not believe that any people were physically tortured, they play mind games to get information, so the gov can protect us with that information.
There were no lies that ever threatened my life, that I can recall.
“I do not believe that any people were physically tortured”
Let’s go to the photos!
OK, I will now stop feeding the troll.
I’d like to hold a fundraiser so’s we can git sum smarter trolls …
Where’s freepatriot when we need him/her?
(I’m still surprised that Bush/Cheney weren’t disappearing journalists – ones like Sy Hersh, not the fake ones that were kissing ass in DC. Or liberal/progressive bloggers. ‘Hi, you’ve just won a free trip to Afghanistan/Iraq! You’re leaving tonight; your stuff will be packed and shipped tomorrow.’)
Dang, now I see the light! Binyam Mohamed cut his own genitals witha a scalpel just to blame us! How could I have been so blind?
Typical have someone else do you work so you can reap the benefits. Sounds like our new tax plan.
Also one could take the troll reference as offensive. If I am of small stature then you are being offensive to me. I do not like that.
Don’t let the door …
Nice to know that DFH’s are so powerful they attract the attention of the high and mighty, and their orcs.
Their party must be in real trouble if we’re yearning for better bridge dwellers …
been there done that do not want to go back.
did my share so you all can freely trash the gov.
The issue of executive orders, to me, is window dressing. If they approved the use of “enhanced interrogation” then they needed assassination squads to go after those who were named by those tortured in the torture sessions. It goes hand in hand. And all directed by the VP’s office. These guys are nothing if they are not consistent. Torture unit, assassination unit. Is that horizontal or vertical integration?
it is all pixie dust here in neverland.
You come here and have the gall to question people’s intelligence before you know anybody, and then you leave the most amoeba brained simplistic comments imaginable. They are not even interesting GOP false memes. William Ockham could write a computer program in an hour that would spit out more appropriate and intellectual comments. Yet here you persist with your tripe, repeatedly playing the false flag victim. Enough.
The fact that you were not treated as spam and excised to start with is testament to the patience and acceptance of the people that run this blog and those that frequent it. I am fine with you hanging out here and participating, even fine with you having contrary opinions, but cease and desist with the simpleton tripe that does nothing but annoy serious people and waste our time and effort.
Participate meaningfully, in good faith and on an intellectual level, get out, or be excised against your will. The choice is yours.
Don’t tempt me. I have paying work to do….
Thank you very much, bmaz. Our guests can’t even get their facts right, but that’s their point, isn’t it? Diverting the conversation away from its main purpose by placing a stone under the train’s wheels. Time to clean the tracks.
The last public execution by guillotine by the French state was in 1939. Pulitzer Prize-winner Stanley Karnow wrote about it in his otherwise charming reminiscence, Paris in the Fifties.
The last judicial killing via guillotine in France was in Hamida Djandoubi in 1977. France outlawed capital punishment in 1981, unlike the United States, which still revels in it, especially Mr. Bush’s Texas.
Adolf Hitler liked the machine invented by Dr. Guillotin as a form of merciful death (as opposed to a blunt axe poorly wielded; it took several blows to dispatch Mary Queen of Scots) that he used it far more than did the French.
Oh silly me, why didn’t I catch on sooner?
It could be an infuriating variant Eliza!
WO, don’t interrupt your paid work, surely somebody already wrote — and deployed — the script.
“You come here and have the gall to question people’s intelligence before you know anybody, and then you leave the most amoeba brained simplistic comments imaginable.”
I used to date a girl like that… Fortunately, she married someone else and is making him seriously miserable.
Hey … you dated my wife ?!!
… ducks and runs …
pull his fucking hall pass already
this guy ain’t even a decent troll
EO 12333 is the place to start, even if it’s the start of the Yellow Brick Road. But it’s like looking at a GPS version of our location instead of using radar in a fog, or our own lying eyes. GPS, like EO 12333, only tells us what ought to there. If there’s another ship, navigating or sunk in our path, GPS won’t tell us that, only real time observation.
The past administration’s defining characteristic was that the law is whatever the president says it is. In fact, he doesn’t even have to say it; he just has to do it and without telling anyone, ipso facto, post hoc, his word becomes law.
Rather biblical, that “analysis”, as in the Book of Revelation, the last book of the “New” Testament, written by the Apostle Dick. Now we know where his undisclosed location is: Patmos.
when 11 of 19 comments are gooper generated or related, it has gone past something that can be ignored straight into thread hijack.
Yeah, I agree. This is getting to be too much.
When was the last beheading France.
June 17, 1939, outside the prison Saint-Pierre rue Georges Clémenceau 5 at Versailles, which is now the Palais de Justice.
I think that was crazy behavior, but for them and the time frame it was acceptable.
So should we go back and prosecute them.
There are three reasons not to be reassured by the appearance that Bush ‘upheld’ EO 12333 barring assassinations or conspiracies to assassinate by U.S. govt employees: 1 – pixie dust, 2 – the mile-wide exceptions created by accepting as some kind of legitimate war a “war on terror” in which the entire globe is a “battlefield” and an unwitting donor to a charity whose funds are misused to support terror attacks is a “combatant”, and 3 – the possible existence of a still-secret executive order by Bush overruling or creating an exception to EO 12333.
Without an administration willing to expose its predecessor’s crimes and abuses, and the record of its actions, we may never know. That would require Obama and his appointees to be willing to give up some of the wildly overreaching powers the imperial presidency has accumulated over the last fifty years, and willing to put a commitment to acting within the spirit of international law over creating the appearance of doing so.
Putting aside their complete unwillingness to hold the previous regime to account, just looking forward, this administration has shown too many disturbing indications of buying into the worst assumptions of the “war on terror” to be given any benefit of the doubt on the current and future commission of crimes that can be twisted into “counter-terrorism” in that truly twisted framework.
EO prohibits assassinations and conspiracies to assassinate by “government employees…”? Does a contract to assassinate, outsourced to private mercenaries, including any of the 150,000 odd mercenaries in Iraq, fit that prohibition, as interpreted by David Addington? Or does it fit into the apparent holes through EO 12333 big enough for a supertanker?
Why is this Water so Black?
Xe, Xe. No, sorry, that’s Xie, xie.
5 – I think the drone attacks that have been leaving dead children as their celebratory detritus are pretty evidentiary. That ties to Hersh’s observations on McRaven’s orders as well.
IMO, at some point, someone needs to make the attainder arguments. The US Gov, whether the Executive, Legilsative or Judicial, simply does not have powers of attainder. They were not granted to them and Congress was specifically barred in the body of the Constitution (not even waiting for the bill of rights) from attempting to confer such rights. There is no US Gov right to abuse, punish or kill someone by Executive or Legislative order or fiat – it doesn’t exist and it is prohibited from being created by Congress.
But you need good men and women, not the precursors to pillars of salt, if the Constitution is to be allowed to work.
27 and related – The evidence is already out there that the human experimentation prohibitions of the Executive order were overriden with respect to the activities at GITMO and the dark sites. I think Valtin and any normal psychologist or psychiatrist would be able to review things like the isolation, sensory deprivation and “frequent flyer” programs, to name just a few of those that were well documented and say that there was state sponsored human experimentation going on.
What Presidents attempt to do with these EOs, though, is to try to circumvent oversight and examination of what they are actually doing by taking the position that they are voluntarily holding themselves and their underlings to an appropriate standard, and to even attempt to imply that the standard is a higher one than is otherwise required of them by law.
But generally it is NOT. The issues of not being able to validly classify Executive branch crime, for example, don’t find their basis in an Executive order, but rather in the underpinnings of the Constitution and law and the nationally accepted premise that no one is above the law. Still, the existence of these EOs as public reliance documents are IMO a very good avenue to commence attacks and it is why I was glad to see someone finally use that approach with the ACLU request to have documents classification reviewed based on that EOs prohibition of classifying acts of crime (given that the court is the most appropriate venue to determine whether or not the acts were criminal).
In the end, the real and true battle should be the Constitutional one, that an Executive is disallowed by the Constitution from classifying its criminal acts, but moving that battle first into the Executive’s own backyard and making them either agree that their EO means what is says it means (you can’t classify criminal acts) BUT that the Executive is saying that it alone can interpret what criminal acts are (that highlights the constitutional issue right there), OR to say that the EO has been supplanted by “secret law” within the Executive branch, etc. – those are all ways of taking the battle right into the WH, where it belongs.
The President is an employee of the people, and if the standard is that an employee is authorized by the courts to hide the evidence of their crimes from their employers to obstruct justice, the employers are entitled to know.
“An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.”
This statement made my head spin
sounds like Sy is going to drop a truth bomb
He said it will be in his book, in about a year or so. In the meantime the damage continues.
Sy has great sources and is almost always right, but why drip this out at a lecture rather than publish?
1) Because he doesn’t have enough corroboration for mainstream paper? (and he is trying to flush out some help…)
2) Because he needs the money?
I don’t know about anyone else, but I don’t like this kind of “reporting”.
There’s a third option.
He needed protection.
If Sy suddenly had an accident and nobody was expecting anything from him, it’d be as if his investigative work never happened.
Think Mike Connell.
That is creepy but sounds like it could be a possibility. Sy has enemies who hate the truth
What are you saying he is dripping out? The part about the JSOC killings, which he published in the New Yorker last July? The part about Cheney, which was intimated in that same article?
The part that was NEW in that appearance has little to do with this, and more to do with the persecution of enemies of the state and the claim that the Iran-Contra alum got together after 9/11 and figure out how not to get caught this time.
A command structure for the operation centered in the VP office. It’s fine to intimate, but to say it directly should in my mind be followed by some description of sourcing or documentation.
His earlier story sourced concerns about chain of command to Fallon and Sheehan:
Granted, they name Cheney only explicitly at the end (otherwise referring to a “small group at the White House.” But that is explicitly, on the record, sourced to two high military commanders.
Excellent memory for detail you’ve got there EW (as if we didn’t already know that *g*).
Here’s how I ended my post on this earlier story:
It doesn’t count as memory if you’ve already written much of it down.
And incidentally, one of the things we’ve seen since then is the acceleration of strikes within Pakistan just after Obama took over. They were going a little crazy at the end and it’s not clear they’ve reeled it in.
I’ve recently been re-reading David Halberstam’s “The Best and The Brightest” (it’s been 30+ years since the 1st read), and I jotted down some “pearls of wisdom” as advice for the Obama Administration.
While I was prepping this stuff for a post on Afghanistan/Pakistan wrt to the Obama Administration policies, it is also apropos here:
If I could give President Obama any advice in the world, I’d strongly recommend that he read or re-read this Halberstam book.
It might save him, and us, a whole lot of grief.
Halberstam is almost maddening in his prescience, wasn’t he? He was aware of the parallels with the Bush administration, too; it came out in his public commentary shortly before his untimely death.
You know, I picked it up from my mom’s house when I was there in August, but havn’t read it yet.
Just to follow up your point, from Hersh’s article titled, “The Redirection”:
One: don’t trust friends. Check.
Two: subvert the CIA and make them irrelevant. {see also: Plame outing; bogus WMD, for two easy examples} Check.
Three: Undercut uniformed military, as with Fallon. Check.**
Four: Run it out of OVP. Check.
———————————
For all the things that make me detest and despise Dick Cheney, former VP, former SecDef, one of the most fundamental is the way that he undercut the US military.
And for GWBush to use soldiers as photo op backgrounds is so far beyond contemptible I don’t have words for it. But the 4-pronged strategy outlined by Abrams absolutely implicates Bush at the top, ‘delegating’ the Dark Side to Cheney so that GWBush’s hands would appear to be clean.
Which only makes it all the more interesting that in the final hours, GWBush did not pardon Scootie-Poot, and didn’t as much as look at Cheney (whose wheelchair disablement was so very ill-timed) during Obama’s inaugural. There’s a hell of a story in those ‘tea leaves’.
** And also, find collaborators within the military and manipulate them to fuck over those like Fallon who understand that complex organizations like the military require a clear structure of command.
David Gergen told Anderson Cooper that President Ford’s executive order made Sy Hersh’s story unlikely.
David Gergen is a tool of the highest (most useful) order.
When’d he do that? I’d love to see it so I can shred it.
David Gergen hasn’t been paying attention.
Then again, maybe he has. The last time a President used pixie dust, Reagan was using it in Iran-Contra. So maybe Gergen knows this tactic firsthand.
35 – or for that matter, using MEK operatives?
Or other contractors, not necessarily the firm-formerly-known-as-Blackwater, but say Lincoln Group, for which we have never had a reasonable explanation?
I watched Ari Flesheater the other night with Chris Matthews, now that was threatening, pathological, and scary stuff.
we have a gnat.
I sure hope Fact Check dissects that interview. The list of lies was infuriating. Just can’t figure out why Matthews keeps subjecting the public to this type of BustCo torture? Maybe to keep reminding us not one person has been held accountable for all of that false pre-war intelligence and endless lies
http://oxdown.firedoglake.com/diary/4154
And then Frank Gaffney was on spinning Fleisher’s lies. Just too much to take and not get sick
“And then Frank Gaffney was on spinning Fleisher’s lies. Just too much to take and not get sick.”
It was an artful bit of language tinkering, having to do with Ari’s apparent claim that Saddam Hussein was involved in the 9/11 attack. If you parse Ari’s words just right, and insert a comma or pause in the right places, it allegedly meant something different than what it seemed to mean. But I also remember wondering whether, in “quoting” Ari, Gaffney might not have left out a critical word or two.
Bob in HI
On Ari Fleischer “speaking” on Tweety’s show: “threatening, pathological, and scary stuff.”
This is further confirmation that we’re not dealing with real humans here. Can you imagine a “normal” person willingly appearing on national teevee, spouting such a line of obvious cock&bull, and pretending to believe it? No. I sure can’t anyway. My takeaway is that Fleischer has been programmed to do this. We have seen others speak similarly in the effort to mask Bushco crimes.
What I see is a “subculture” that has trouble comprehending this odd human characteristic of empathy, attempts by observation to mimic it, but when the going gets heavy they (Fleischer et al) flummox it; most of them are not very good actors. Then they are left with only pure power plays, often hamfistedly executed. It is more and more evident.
Not actually off-topic, Scott Horton has the best piece yet on our torture dilemma. I love the headline, Look back in anger.
Key ‘graphs:
…
John Osborne, 1956. About a love triangle gone bad and a marriage recovered. Mr. Horton sees parallels? Who’s the aggrieved wife and who does she go back to? Or is the parallel in the gritty realism and in its role as the foundation for an entire genre?
we must learn SEP from Doug Adams and thus learn not to feed wildlife. It harms them.
TPM is reporting that we’re no longer going to use ‘enemy combatant’ classification.
In part:
“Enemy combatant” is a defined term in the Geneva Conventions. It will continue to be used. But clearly, most or all of the men held in Gitmo and Bagram do not fit that definition, which makes finding another legal category to put them in essential.
it’s been awhile since i read them (winter of 2002, i think), but i don’t remember seeing that phrase, let alone definition. could you direct me to it? thanks.
The general term in the Conventions is “combatant”, with a rebuttal presumption that that meant “lawful” combatant. One belonging to a recognized opposing force is an “enemy combatant”.
The administration focused on dividing combatants into two groups, “legal” and “illegal”, with the intent of denying Convention protections to the latter. The Convention assumes that those detained on the battlefield are lawful combatants, but contain procedures for reversing that finding. As usual, the Bush administration was a willfully blind man confusing the tail with the dog.
There’s an entire industry devoted to parsing this. I’d start with Scott Horton. See also, here and here and here.
yeah .. the GWOT is a misnomer .. i’d prefer we redirectdefining our efforts towards the Battle Against Terror Tactics [&] States Harboring International Terrarist Criminals Reprobates and Zany Yemenis ..which becomes ..in acronym-speak:
the camapign against BATTSHIT-CRAZY …
hey .. at least it’s an honest descriptive .. eh ?? and it has the advantage of being self-explanatory .. when things get out-of-hand ..and disproportional it’s a useful PR tool as well ..
“geeze.. were sorry.. but we we’re caught up in BATTSHIT-CRAZY .. and collateral damage is to be expected ”
there ..see how well that works …
[splurf]
I just read your acronyn BATSHIT-CRAZY turned to the TV and who did I see? Michele Bachmann. Co-inky dink?
40 – my understanding is that he is still working on some confirmations and additional support and evidence so he can “cast iron” his allegations. fwiw.
46/48 That will be worth a look, but it leaves some things very murky. For example, the people sent to GITMO, which was set up to be non-compliant with Geneva Conventions, were sent there, not as “enemy combatants” but rather as “illegal enemy combatants.” The whole rationale from OLC for the ability to suspend Geneva Conventions was that they were “illegal” combatants.
If they were deemed to be standard enemy combatants, they would have been entitled to POW treatment, which was violated over and over and over and …over, throughout the course and conduct of their detention and now as well. This has also been the application at the concentrated population camps in Iraq and Afghanistan – no one is given legal enemy combatant (pow) treatment or handling.
Losing the terminology of enemy combatant will make it very murky as to the nature and extent of the MCA and civilian vs. military law, since “international laws of war” pretty much rely on such terminology.
Of course, the flip side, finding that the detainees at GITMO were not only not “illegal enemy combatants” but not even “enemy combatants” at all, as has been done now in several of the court cases, makes out a prima facie case of war crimes, since it is a violation of the Geneva Conventions to send protected persons (which is what all the non-combatants would have been) out of country.
Excellent. Thanks.
I’d also like to reiterate and make note that the DOJ’s filing on their detention authority makes the point that they are only applying it to Guantanamo detainees and not the thousands detained at places like Bagram Afghanistan nor Abu Ghraib in Iraq:
From page 3:
Jeebus.
Nice catch.
Though I don’t mean “nice” in the traditional sense.
Can’t remember where I saw this previously, but this is consistent with Obama’s distinction of Gitmo from foreign, most notably “battlefield” installations such as Bagram. So while this is somewhat loathsome, it is neither new nor surprising as a position.
Of course Bagram confines few detainees from actual battlefields in country, and its prisoners are picked up globally. Which means that the rules applying to true battlefield detainees don’t apply. Nevertheless, as you know better than I do, it’s become the ClubDread of choice in lieu of Gitmo for global prisoners.
I beg to differ, but only in loathsomeness.
The fact that no GWOT detainees have been transferred to GITMO for some time, beginning in the last years of the Bush/Cheney Administration, makes this latest filing by the Obama Administration revoking the term “enemy combatant” for GITMO-resident and destined folks, somewhat moot.
Tthe detention of GWOT folks at GITMO have ceased, and the operative questions/issues are just how many detainees have been detained since GITMO ceased being a detention destination, and where those detained now reside.
“Out of sight, out of mind” by the Bush/Cheney Administration was apparently the follow-on procedure, and as far as I can see, the Obama Administration has also bought this in full.
Bingo.
No, it’s not. He refused those detainees at Bagram habeas just recently. So it’s clear he intends to treat Boumediene as a ruling applicable only to Gitmo until Kennedy tells him differently.
46 – and from that release, which is apparently being made in habeas filings,
“The government’s new standard relies on the international laws of war to inform the scope of the president’s authority under this statute, and makes clear that the government does not claim authority to hold persons based on insignificant or insubstantial support of al Qaeda or the Taliban.”
Wel, then, if the Gov doesn’t claim that authority NOW, what about the people injured when it was claiming that, for example, selling a burger at the McDonald’s drive through to a guy named Ben Loden was enough? And more importantly, what is the process for release for people who are being held. Bc if the filing is being made in habeas filings, it is pretty much an effort to duck out of court – to say “we have this new nifty standard that is actually based on international laws of war, where you only detain actual “enemy” so never mind with habeas review.
But since that standard has a) not existed during all the detentions through now, and b) has no credible means of being applied in connection with people who have been abused for the better part of a decade, just what are they wanting to buy in the habeas proceedings? The answer is that they want a pretense of procedure to keep victims from the courts.
not pretty
re 51 .. i thought the term applied was “unlawful enemy combatant” .. semantics ?? or a way of avoiding the entire wording used by the GC..
IIRC, there has already been a court case that turned on the difference between an “illegal enemy combatant” and “enemy combatant.” Unfortunately, I can’t remember which one.
Bob in HI
51 – they’ve used both, and also “unprivileged” combatant, and sometimes they use belligerent instead of combatant.
Under the MCA, Congress punted to the Executive and said the President can make anyone he wants to (basically) an unlawful enemy combatant by fiat. The provisions on lawful/unlawful are:
So Congress said that the kangaroo CSRTs were “dispositive” on status, although we have since had courts rule that, CSRT notwithstanding, the people before the courts were NEVER combatants much less enemy combatant much less unlawful (illegal or unprivileged) combatants (or belligerents).
However, the main issue before the CSRTs when they were held was the worry over making sure that detainees (half of whom, as Mayer lays out in her book, the camp commander believed to NOT be combatants of any kind, enemy or unlawful) were classified as “enemy combatants” because that was the only hook justifying sending them out of country without such shipment being a prima facie war crime. And there was almost no evidence against anyone that they had engaged in unprivileged belligerence, so the quickie kangaroo CSRTs by and large only found detainees to be “enemy combatants” and didn’t bother with finding them to be “unlawful enemy combatants”
So with the MCA focused only on providing a kangaroo system for handling “unlawful” enemy combatants, and using defintions welded from that premise, right off the bat there was a big issue at GITMO, one caught by the military judge involved.
There could only be MCA proceeding for “unlawful” enemy combatants, but the CSRTs hadn’t bothere with that determination, they had stopped at findings of ‘enemy combatant.’(you may have seen some mentions by me here and there to the remarkably crappy drafting skills of most of the pro-torture crew)
The Pentagon and Bush immediately dismissed the emphasis on this issue, and revealingly also said “no matter, we can just [get our kangaroo tribunals that do whatever we want, to] “redesignate” the detainees as “unlawful.” But the military lawyers involved did understand the significance, the huge significance, of being a lawful vs. an unlawful combatant, especially under the Bush/OLC scheme which depended for authorization of depravity against the detainees on the belligerent’s illegality.
Eventually, the commissions went on anyway, but what Obama is doing here is exploiting the bad drafting and uberbroad discretion given by Congress to just meld things his way. I absolutely agree with a “real support” standard that gets away from the fuzzbucket of “material support” but it seems the effort is going into getting things out of court and away from court’s review as opposed to giving aggrieved persons real avenues of not only release, but relief.
This edifice was built to support the unreviewable exercise of power by Big Dick. It’s not about the law or law enforcement. That’s a McGuffin, “a plot device that motivates the characters and advances the story, but has little other relevance to the story itself.” It’s an elaborate, extortionate game of “find the pea”, and Team Obama wants to play, too.
I don’t guess we could get Obama to offer up Camp x-ray as a landing point for all the US citizens who are going to leave the nation and Go Galt? Galtmo?
You know already who the tiny annoyance is since you have access to his backnumbers ew, bmaz. He’s here to disrupt and that only. He sullies this blog for those who read here. As RMaddow would say- WashRinseRepeat.
Gosh! Was that YOU!
thanks mary .. thanks bob .. at least y’all aren’t caught up in my #50 .. eh ??
The Obama administration, hoping to set helpful precedent, has filed briefs intervening in the case of Killing Fields torturer/executioner, Kaing Guek Eav, aka Duch. Duch “has confessed to atrocities, but insists he was acting under orders.”
The Obama Dept of Justice has filed a three part brief in support of Duch.
In the first section, they explain that you can’t move forward by looking backwards. Citing, as authority, numerous cases which mention the words “look” “forward” “not” and “backwards” (albeit, in different sentences and paragraphs,) this section of the brief has 9,241 footnotes.
The second section sets forth the Nuremwrong Doctrine, and explains in detail that following orders is, you know, like, what torturers and executioners are supposed to do. DOJ, citing John Yoo and numerous intelligence officials, further investigates the alarming revelation that, if you punish torturers now, other people might not torture for you in the future. Obama and Holder are certain that international courts will be just as swayed as they were by such reasoning.
The third section offers United States citizenship to Duch and an armed helicopter escort out of Phnom Penh. In this section, DOJ explains to the Judges that their court will be bombed if Duch isn’t allowed to leave so he can start work in his new job, as aide to Admiral Blair.
/s
We really don’t have much left, do we? When you look to cases of notorious torturers and realize that the “change-y” Obama administration is using a torturer’s arguments to prevent the US from even holding a trial.
50 – *G* I nominate for Best Use of Zany for militaristic acronymical purposes. The upside is I bet you win. The downside is what you win.
and Team Obama wants to play, too
All the evidence points in that direction, doesn’t it?
It’s hard to argue otherwise, given Obama’s widespread adoption of Bush’s often bogus legal arguments. Team Obama isn’t just straightening the legal playroom after Addington and Libby and Cheney trashed it like drunken teens. They’re redecorating it to live in it.
I noticed that the end of Scott Horton’s column, Look Back in Anger [Or, Look Back, Goddamnit!], that Mr. Horton has left his visiting gig at Columbia Law for one at Hofstra.
i think they’ve [the O team] inherited a big sticky gummy ball .. it’s one of those things that you can’t shake off and you can’t put down .. and every time you try to pry it off the one hand ..it gets stuck to the other ..and certainly no one else wants it ..
if and until they can find a gaint can of goop-off .. they’re stuck ..
now .. at the point they finally find a giant industrial can of goop-off .. we’ll then see whether or not they really want to get unstuck .. or not ..
this whole mess is the old proverbial being-stuck-between-a-rock-and-a-hard-place .. and also one of those damned if you do and double damned if ya don’t situations ..
i’m trying very hard to maintain my belief in their “good faith” ..[with bmaz’s most convincing stances as counterpoint in due consideration and held in abeyance.. with a bit of looseheadprop and labdancer mixed in there as well ] and there are days ..times ..and issues which try the attachment points sorely …
Wonder just how quick John King will be to ask Chee-knee the difficult questions about this Sunday morning?
The main problem with assassination squads coming out of the executive branch is that they inevitably make their way back home.
Roland Cubela comes to mind. Johnny Roselli comes to mind.
You just never know who’s working for who in the assassination world. You’d need a Ted Shackley, a David Atlee Phillips or a James Jesus Angleton to keep the hall of mirrors in perspective.
The smart fellows in the Executive Branch never quite get the concept of “blowback.”
They did. Kennedy’s team, long before Dallas, knew too well that what goes around comes around.
For decades officially sanctioned political assassinations were off the table, with the apparent and odd exception of Mr. Castro, whose demise seemed less important than his continued existence as an enemy close to home to those who wanted to expand the CIA and raise votes in Florida. Otherwise how could so talented an institution as the CIA have failed to carry out its “objective” for two decades?
It was Mr. Bush, in the guise of Dick Cheney, who chose to let loose the dogs of political assassination as official state policy, another fine mess he’s gotten us into. Little wonder his “retirement” home is about 1500′ from the CIA’s front gate.
It’s so sweet of all you lefty lawyer types to think that
W had anything to do with the law.
What the hell does that mean?
it’s snark bmaz, she is saying bush is above the law
Very good then, I’ll go back to my corner.
but let me ask you this since IaNal;
as I said, I am not a lawyer but an executive order is not law, the president can’t make law, all he can do is suggest how law is prosecuted and (pardon the expression0, executed
imho, while there might be other actual laws that address the issue as to whether or not it’s legal, ford’s eo does not
An EO has the force of law within the executive branch. For its employees, including political heads of agencies, EO’s are rules binding their conduct, the violation of which carries penalties.
One of the craziest rulings by the OLC was that a president is not bound by his own EO’s, he can change them at will, without notice, by virtue of his own conduct. He needn’t record changes to his EO’s, at least as regards his own conduct. It’s unclear, I imagine purposely so for a Darth Cheney that loathed rules of conduct in any form, what impact that ruling has on other actors in the executive branch. I think the fuzzy, unpredictableness of the resulting legal scheme is a feature, not a bug.
One might call that the Rear Window approach to EO rulemaking. As Jimmy Stewart said to Grace Kelly about what a beautiful woman has to do, sometimes she doesn’t have to do anything, sometimes, “She just has to be.”
79 – what makes it such a big, sticky, gummy ball is that they will not verbalize the truth. They will not say:
We’ve done depraved things to innocent people under these policies.
They won’t say:
Task force members at GITMO told the Executive we were engaged in war crimes back in Jan of 2002; or
CIA experts sent to GITMO told the Executive that at least 1/3 of those we were holding were innocent of any contact with terrorists or the Taliban in 2002; or
GITMO’s commanding officer agreed with the CIA expert, except he put the percentage at closer to 1/2; or
Odierno rounded up people willy nilly in Iraq and set the patter for detention based on location, not insurgency; or
Abu Ghraib housed mostly innocent civilians, rounded up with no rules or regard because our Executive didn’t believe in the UCMJ or the Geneva Conventions or that innocent brown people with funny names had a right to not be abused; or
we engaged in evil and have been unrepentant to the victims of our evil for seven years.
They won’t acknowledge that we picked up innocent people and abused them. The reasons for that lack of acknowlegement may be many – because they don’t want to out CIA torturers or childnappers; because they don’t want to look as if they don’t support the troops, when the troops are told to torture; because they don’t want to jeopardize corporate relationships, like Jeppeson/Boeing, especially not when campaign contributions may still be in the offing; because the DOJ and intel communities don’t really give a damn about the cost to country and victims and their only focus is on protecting their own; or because Syria, Jordan, Pakistan, Morroco and other places that assisted with the US entre into becoming a state sponsor of torture are volatile hotspots and it makes them more so to have headlines on their torture assistance.
But whatever the reason, you can never fix the broken wheels without acknowledging the wrong they did. Obama won’t do that. He wouldn’t when he was campaigning (never a word about Arar; references to making sure terrorists didn’t get the same rights as Americans; excuses that torturers [and FISA felons] were acting “in good faith” so their victims don’t matter; and on and on).
So if you never fess up to the catastrophes of your policies – if all you ever do is finger steeple and say GITMO hurt our image overseas WITHOUT explaining to Americans why it hurt our image; if you go on wihtout explaining that people in other countries knew what the CIA analyst told the WH in 2002 — that we had innocent people there and we were damn well going to use them for experimentation and we didn’t care that they were innocent, we had bought them and owned them and that was that — if you don’t explain any of that, you can’t fix the system. And you can’t fix the parts of America that were broken when it became a state sponsor of torture.
Brilliant summation, Mary !
The sad thing is, U.S. foreign policy has always condoned assassinations and tortures, in order to further the interests of CorpAmerica.
If I may, I suggest that the stickiness is partially imparted bc we’ve done depraved things to both guilty and innocent people.
oh i agree mz mary .. what horrors are hidden this deeply and fought so hard to keep concealed will be heinous..by implication ..
whatever it is it ’tis the evil they dare not speak aloud ..
and yet we know .. by extrapolation the range and depth of depravity most likely .. maybe the truth they can’t utter includes such as …
people were beaten to death in front of others not for the purpose of obtaining information .. but to impress upon other soon-to-be-interrogated parties to demonstrate the lengths and depths of the options .. to intimidae and terrorise .. or simply pour les encourager …
brutal .. vile .. obdurate sadism in the service ofthe quest for “thruth .. justice ..and the ‘merkin way .. ” eh …m’lady of the law ??
imo there are multiple activities being sheltered and denied because if they were exposed and known the resulting tsunami of public outrage would swell to the point where prosecution and punishment of those who laid and ordered the regime would be impossible to quash ..
..so said the dreamer …
John dean says if the hurch interviw is true cheney is a murderer and a war criminal
EPU’d as usual but thought I would add this.
If, as some have argued above the ‘new’ policy says people can only be deemed enemy combatants for serious support of al Quaeda or the Taliban, then what I want to know is when does Jose Padilla get released from prison. He was convicted of providing ‘material support’ to some unnamed terrorist organization in Bosnia back in the 1990s I believe?
Hmmm.
And if not, then could we apply the same standards to all the still-living crooks who participated in Iran-Contra since you could make the same argument about them and prosecute (torture) and incarcerate? They were providing actual ’serious’ support to the Sandanistas who many in Nicaragua would argue were definitely a terrorist organization.
the still-living crooks who participated in Iran-Contra since you could make the same argument about them … They were providing actual ’serious’ support to the Sandanistas who many in Nicaragua would argue were definitely a terrorist organization.
Um, you mean the contras, not the Sandinistas. The Sandinista Party, the governing party of Nicaragua, had their flaws, but the terrorists were the counter-revolutionaries funded and spurred on by the U.S. sub-governmental, off-the-shelf “Enterprise”, and in the end, by the whole U.S. government.
Wow, that there graphic at FDL is too much of a … um … thing.
96 – “If I may, I suggest that the stickiness is partially imparted bc we’ve done depraved things to both guilty and innocent people.”
Absolutely – but they are only acknowledging one part of that. They will half heartedly acknowledge that KSM was waterboarded, but not that his children were disappeared. They will talk a little about guys directly tied to the Cole and 911, but not about the 80 yo men on walkers and London chefs.
That’s why they can’t dig in and fix things. Americans are going to resist the premise that you can’t do bad things to bad people unless they recouple that premise, as we have always done in the past, that the REASON you can’t just pick up people and start treating them horrifically is that you ALWAYS end up abusing innocent people as well – that’s why we have trials and due process.
If all they are acknowledging is the KSMs, they not only lose the public on the issue, but they also, from a practical standpoint, can’t deal with the real issues presented.
110 – I never read it, but now you’ve made me interested. Thanks for sharing the info.
113 – I think the level of anger in Whitehouse reinforces what you are saying on the extremes.
The problem is that no one, not anyone I can see, has the courage to say that it is a horrible thing to do to this country, to make it into a nation that equates being a state sponsored torturer and murderer with being a patriot. The fact that the so-called “patriots” are willing to do that to this nation, simply to avoid personal accountability, says a lot about how they really feel about this country. It’s a latrine for them to piss in.