Obama Administration Deliberates Whether to Tack to the Right of David Rivkin

Go read this entire Charlie Savage article describing the deliberations within the Administration on how to respond to ACLU/CCR’s lawsuit challenging the government’s ability to target American citizens for assassination with no due process. The whole thing makes me want to cry about what our country has become (Congratulations Osama bin Laden! You’ve won!).

But it was this paragraph that really made me nauseous:

“I’m a huge fan of executive power, but if someone came up to you and said the government wants to target you and you can’t even talk about it in court to try to stop it, that’s too harsh even for me,” [David Rivkin] said.

Rivkin is, of course, the former Reagan and Poppy Bush official that Republicans like to roll out any time they need an absolute unquestioning supporter of unlimited executive power. His job is effectively to put legal lipstick on the power hungry pig that has grown out of 9/11.

But he refuses to endorse the legal approach Obama’s DOJ is reportedly considering: to try to get the Awlaki suit dismissed by invoking state secrets.

And it’s not just Rivkin being contrary for partisan reasons. He endorses another of the approaches the Administration is considering, just telling the judge to butt out because this is a matter of politics.

Mr. Rivkin said he favored a different argument: a declaration that in war who can be targeted — and where — is a “political question” for the executive branch to decide, not judges.

Yup, according to Savage’s report, a Democratic DOJ is actually contemplating arguing to a judge that during wartime, the President can choose to kill anyone he wants to anywhere he wants to.

If the President kills someone, they’re preparing to argue, it’s legal.

Which gives Savage another opportunity to rely on a right wing lawyer to point out just how crazy are the arguments the Obama DOJ is contemplating. In this case, former W Administration official Matthew Waxman notes that even if it were true that the President can choose to kill whoever he wants whereever he wants during war, we’re not at war with Yemen!

Inside the administration, that argument is also seen as attractive. But invoking it could give the court an opportunity to reject the idea that an armed conflict with Al Qaeda exists in Yemen, said Matthew Waxman, who was the Pentagon’s top detainee affairs official under the second President Bush.

“The more forcefully the administration urges a court to stay out because this is warfare, the more it puts itself in the uncomfortable position of arguing we’re at war even in Yemen,” he said. “The worst outcome would be if the court rules that the president is not authorized to wage war against Al Qaeda beyond combat zones like Afghanistan.”

Of course, no one seems to be contemplating actually litigating this case, actually allowing a judge to rule on whether it is legal to assassinate American citizens with no due process.

And these are the lawyers guarding our Constitution.

  1. PJEvans says:

    Because the Constitution is so important that it should never be applied to real life, just put on a pedestal and worshipped.

    If the Rs want to impeach these guys, I’m not at all sure I want to stop the process, although the results might, possibly, be worse than what we have now.

  2. klynn says:

    So, anyone who may be a threat to peace in the US may be a target? And if you are the target, you have no chance to defend yourself in court due to states secrets?

    Man, that could be a long list of citizens…The state of PA knows all too well.

    Imagine how handy that kind of exec power could be during an election. /s

    Citizens afraid of free speech because they may end up on a hit list? I’ve heard about that somewhere in history…Hmmm…

    Self censorship kills democracies.

    • BoxTurtle says:

      So, anyone who may be a threat to peace ObamaLLP in the US may be a target?

      Fixed it for you!

      Boxturtle (This has nothing to do with the WoT, this is about raw political power)

      • klynn says:

        Agree with your edit. However the veil will be “threat to peace.”

        Agree it is about raw political power.

        (I did not know there was a WoT) /s

        From a Just War perspective, thought we passed our equilateral response to 9-11 a long time ago.

  3. donbacon says:

    during wartime, the President can choose to kill anyone he wants to anywhere he wants to.

    Last time I checked the rules of war apply to both sides. So why all the furor about 9/11?

  4. parsnip says:

    The only way to make sense of all that Marcy chronicles is within the framework of assuming that the big state secret is that we’re being governed by COG, and that the Report From Iron Mountain provides the underlying rationale for the government’s actions.

    Here are just three examples of proposals considered by the group that produced the report:

    Organized repression of minority groups [Muslims]

    Reestablishment of slavery [rampant unemployment as prelude?]

    Deliberate intensification of air and water pollution [Corexit in Gulf of Mexico]


    Seriously, it seems the only legitimate exercise of expression is voting on hackable computers. Any other expression of political or policy preference is now considered coercion of government and, under the October 2001 USA Patriot Act’s Section 802 constitutes the crime of ‘domestic terrorism.’ DHS is mandated to surveil dissidents/groups and this would explain the report on Marcellus shale anti-frackers out of the Pennsylvania DHS that Marcy blogged about yesterday.

    • mattcarmody says:

      I written about that in comments here more than twice. Everything follows in a neat little line from what was put forth in that book and the reliance on study groups back then makes it very likely that was exactly what it was purported to be, a leaked report.

      Just looking at the way there is an underlying continuity of purpose serving a cause that does no rational good for the country as a whole but for a coterie of interests that benefit handsomely from this perpetual war economy we’ve had these last 35 years, you have to know there’s someone behind the curtain with their own agenda.

  5. Mary says:

    When Count Rivkula says he wouldn’t suck blood out of that argument, you have to shake your head.

    The Ninth ruling does lay some foundation for just the kinds of arguments the admin is making, though. Especially since it doesn’t differentiate in its rationale between Americans as targets of states secrets invocations v. non-Americans; a distinction that even the like of Graham felt compelled to keep in the MCA legislation.

    All of this has been the train coming down the tracks. It’s why I’ve thought for a long long time now that arguments need to be made based on the prohibition against attainder and the Keith case as a states secrets v. executive crime case.

    • fatster says:

      If you’re still interested in the Pentagon child porn reinvestigation, I left links for you @ 34 back on the ” Women Enjoying Sex” thread.

      • Mary says:

        Thank you.

        @27 – I never read the underlying panel opinion, but it’s good to know he saw that problem as well (although would have been looking at the lower court ruling, the en banc modifies bits of the lower court, but not on the issue of a US citizen as of the Executive).

        @30 and elsewhere, I use that same language and expression, but to be fair, they aren’t really saying it’s “legal” they are saying the President/Exec branch can act (or by state secrets also adopt the acts of others and treat them as exec acts) outside of the law – that law cannot be applied to the Execs actions bc he declares the actions secret.

        In some ways that’s worse. Declarations of legality can be changed with different facts, different judges, etc. – declarations that law doesn’t apply are a different matter.

        • bmaz says:

          The Jeppesen panel decision is VERY good actually; well worth the read. And it was unanimous. Of course you do not often (read almost never ever) get a panel of three judges as enlightened and dedicated to the Constitution as Bill Canby, Mary Schroeder and Mike Hawkins. All three from right here in Phoenix I might add.

            • bmaz says:

              Precisely, but even more than that, it just stands on its own as what you would want a court to write on the subject at hand. You know how we have dissected a couple of Vaughn Walker’s decisions and concluded “Hot damn, that’s the way to do it!”; well I kind of found the panel decision in Jeppesen to have at least some of that kind of feel.

    • phred says:

      Mary, would you please remind us of the Keith case? I’ve been following your arguments on attainder, but I don’t recall Keith.

      • Mary says:

        The Keith case was one where the White Panthers were on trial and their lawyer asked for any surveillance info. Turns out there was surveillance that even the prosecutors (supposedly at least) hadn’t known about (uh huh) and which was not authorized by any kind of warrant.

        It’s a case that shows, imo, why you have to read the cases and delve into their background instead of just doing computer research for “headnotes” (short summaries of what a case supposedly stands for). The reason I think this is important is that once the DOJ fessed up that there were surveillance tapes the lawyers were ordered to produce them to the court – to Judge Keith. I’m not re-looking things up, so I may get a bit wrong here and there, but in essence then the AG flipped out and filed a declaration to get the tapes back and keep them secret and prevent them from being provided to the defense.

        That declaration is pretty clearly a Reynolds declaration – iow, it was an invocation of the states secrets doctrine. Not only that, but the arguments were also made to the court that we were at war (Vietnam) and these terrorist groups like the white panthers were threats to national security etc. Judge Keith looked at the wiretap statute (which was nowhere near as clear as FISA had been imo) and said the surveillance was illegal despite the claims of national security trumping existing law and refused to return the tapes to the AG as the AG was demanding.

        So it became a case styled “United States v. U. S. District Court” bc gov prosecutors sued Judge Keith to get the tapes back. That’s why it is usually called the Keith case. IMO, if you pull out the facts of the case and not just the headnotes, we already have a Sup Ct precedent for what should happen in a showdown between Executive invocations of states secrets v. illegal/unconstitutional Executive behavior and it should be cited for that proposition. The Sup Ct told the AG to eat dirt and die. Or something like that. ;)

        The case against those threats to national security, the white panthers, was dropped as a result of the illegal surveillance.

        So we aren’t, imo, operating where there is no Sup Ct precedent, we’re just operating in a situation where no one is citing a Sup Ct precedent for what one of the things that it really stands for, if you marshal all the facts. The facts make the law.

          • fatster says:

            Would you mind expanding just a bit on your comment, bmaz? As you well know by now, IANAL but am intrigued by Mary’s summary of the White Panthers case. Many thnx to both of you.

          • Mary says:

            I think that can be dealt with in a couple of ways – Gov was not using the covert surveillance in the criminal proceeding (like Gov not using its Padilla torture in that proceeding, etc.) so what you really had was not a case that involved the criminal defendant white panthers, but rather one that invovled the Judge v. DOJ about evidence that was not being used in a criminal proceeding but which was, itself, evidence of executive branch crime.

            Also, I think the case can be made pretty strongly that gov can’t get around the criminal setting by saying that it was engaged in unconstitutional penalties and punishements without trial and convictions and the same aspects that made the judiciary’s interest so strong (for that matter, gov illegal behavior in the Nixon case and the judicial handling is in accord with how I’m using Keith) applies with just as much impact or even more when the penalties that are going to be imposed on a person in US custody are going to be unconstitutionally imposed as attainder, without trial of any kind. IOW, the judicial interest can’t be higher than when gov is alleging a detainee is a civilian or war criminal, but is proceeding to punishment without any civilian or military proceeding and is using measures to impose that punishment that are also in direct violation of law. fwiw.

        • phred says:

          Thanks Mary!

          Alas, I haven’t the time right now to dig into the case histories properly, which is why I appreciate your response so much as it gives us non-lawyers a better idea of the salient facts at hand. Thanks again for taking the time to explain it to us!

    • powwow says:

      The Ninth ruling does lay some foundation for just the kinds of arguments the administration is making, though. Especially since it doesn’t differentiate in its rationale between Americans as targets of state-secret invocations v. non-Americans; a distinction that even the likes of Graham felt compelled to keep in the MCA legislation.

      All of this has been the train coming down the tracks.

      An arriving train that Judge Michael Daly Hawkins himself clearly predicted in his original, unanimous panel opinion, that the 6-5 en banc Ninth majority recklessly overturned:

      At base, the government argues … that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it “involves allegations” about [secret] conduct by the CIA.” This sweeping characterization of the “very subject matter” bar has no logical limit — it would apply equally to suits by US citizens, not just foreign nationals; and to secret conduct committed on US soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.

      To which Andy Worthington adds, referencing that overturned panel decision:

      [T]he judges drew on Boumediene [v. Bush, the 2008 ruling granting the Guantánamo prisoners constitutionally guaranteed habeas corpus rights], in which the Supreme Court stated that, while “[s]ecurity depends upon a sophisticated intelligence apparatus,” it “subsists, too, in fidelity to freedom’s first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by the adherence to the separation of powers.” They also drew on Hamdi v. Rumsfeld, another important Guantánamo case in the Supreme Court (in 2004), in which the justices stated, “Separation-of-powers concerns take on an especially important role in the context of secret Executive conduct. As the Founders of this nation knew well, arbitrary imprisonment and torture under any circumstance is a ‘gross and notorious … act of despotism.’

      An act of despotism for which, according to the United States Court of Appeals for the Ninth Circuit last week, there is no remedy under U.S. law, in U.S. courts, if and when the “despots” themselves so decree.

      If the Supreme Court denies certiorari review of the en banc Ninth’s opinion in Jeppesen, it’ll be putting the lie to its majority’s pretty words in Boumediene and Hamdi, and facilitating this nation’s accelerating train ride toward the end of Constitutional government.

      • bmaz says:

        i think there is a very good chance they will deny cert based upon the perceived likelihood a merits consideration would deadlock at 4-4. This is the ratfuck that is Obama’s placement of Kagan on SCOTUS.

      • MikeD says:

        Under the Ninth’s ruling, Any court can find no merit in a government claim that a suit proceeding would of necessity reveal state secrets that must be protected. It is false to say a mere government claim can bring the dismissal of such a suit; a court must agree with the claim on its merits (and finding must survive on appeal).

        • powwow says:

          It is false to say a mere government claim can bring the dismissal of such a [state-secret-contested] suit; a court must agree with the claim on its merits (and finding must survive on appeal).

          Of course. I realize that, as I trust everyone who’s been following this case does, just as I realize – as my comment @ 27 was intended to imply (transparently, I hope, to most) – that, in practice, most judges – particularly appellate judges, based on their deplorable track record as secrecy claims by the Executive have mounted ever higher – will likely obediently salute Executive Branch threshold claims of “state secrets” in future, as the Ninth did here, if that ominous ruling is not overturned by the Supreme Court.

          The Ninth, which has just unleashed a dangerously-expanded, at-the-threshold state-secret dismissal “doctrine” – in which speculation about future vague threats to “state secrets” is deemed a valid reason to deny access to federal courts for grievously-injured parties – is just the latest example of the many federal courts – led by the D.C. Circuit – who reflexively defer to claims of “state secrets” by the Executive Branch – an increasingly-predictable reaction from U.S. appellate courts, in particular, that’s becoming the appalling norm.

          Never mind that, theoretically, the rare justice-focused federal court somewhere in future might actually reassert judicial prerogative in the face of specious “national security” claims, by telling the Executive Branch where it can shove its overreaching “state secrets” dismissal motion – thus standing as a laudable exception to the many federal judges and courts who will eagerly take advantage of the fact that the Ninth Circuit has, at least for the time being, handed them a golden excuse to throw whole cases out of court at the threshold (even, or especially, cases bringing claims of torture or other grave crimes against government actors or contractors), thereby lessening their workload even as they please the All-Powerful (that isn’t literally true either, as a matter of law, you should note) Executive Branch, and pat themselves on the back for “protecting national security” at the same time.

          • bmaz says:

            Quite right. And Vaughn Walker is rumored to be retiring soon, so that leaves the total judges who might have the balls to stand up to the government at damn few minus one.

  6. prostratedragon says:

    … so I finally have had to dare myself to remember why I’m down here (prostrate) in the first place.

    The Fred Hampton story

    There are many such stories. Why anyone thinks we can tolerate any more of them without destroying ourselves is beyond me. Watch out for the lowering ceiling.

    • phred says:

      Thanks for that link. They used to feel compelled to cover-up police brutality and murder, but now? Why bother. If it’s not illegal when the President does it, why should it be illegal when any other government agent does it?

      I feel safer already. (bitter, bitter, snark)

  7. Jeff Kaye says:

    From the OLC memos to this latest charade, it’s so clear that Law is an afterthought in America today.

    They are letting loose the dogs of anarchy and/or dictatorial rule, which are the twin results of such lawlessness. This is why empires always fall. Got what a racket it will make when that happens. I fear for my children such a terrible reckoning for the failures of our generation to take ahold of these things and make a better world.

  8. b2020 says:

    Hostis humanis oh fuck it.

    The pirate, the slaver, the torturer – what’s this then, the tyrant?

    What I don’t get: where is the mileage – the payoff – for Obama LLP in targeting Awlaki – this is not some kind of operational mastermind. Even if the worst they hint at were true, it is frankly ridiculous to see Bygones Habeas and his minions pursue this with such single-minded, Bushian fervor, for a “target” like this. Does he think this will seal his re-election bid in 2012?

    As a side note, Obama truly must be a hollow man. Bush at least would have taken pleasure in writing and signing the list himself – Bygones has apparently delegated even that. I guess he is just following orders after all.

  9. powwow says:

    Justice Department lawyers are circulating a draft brief with several potential arguments for dismissing the case, and lawyers from national security agencies have met to discuss what should go into the final version. But they have not reached a consensus, according to officials familiar with the discussions, because the arguments seen as strongest also carry significant political and legal risks. – Charlie Savage

    Dear me – unfettered power is a bit of a conundrum, sometimes, in a pretend-Republic, isn’t it, All-Powerful and All-Knowing Executive Actors? But somehow I don’t imagine that “Scooter Libby Justice” practitioner Judge John Bates is going to pose much of a hurdle to any argument that the All-Knowing Executive Actors eventually decide to propound in this case – including, of course, the favored Judicial Branch-concocted, buck-passing “political question (or branch) doctrine” (aka the separated powers must consolidate doctrine).

    The lawsuit was filed by Mr. Awlaki’s father, Nasser al-Awlaki, who is represented by the American Civil Liberties Union and the Center for Constitutional Rights. It contends that designating a United States citizen for killing outside of a war zone, without an imminent threat, amounts to an extrajudicial execution, and it disputes the notion that battlefield law applies far from Afghanistan.

    There is widespread agreement among the administration’s legal team that it is lawful for President Obama to authorize the killing of someone like Mr. Awlaki — regardless of his citizenship — if he is found in an ungoverned place or in a country that grants permission. (The details of any arrangement with Yemen are unclear.) – Charlie Savage

    If I may make a suggestion to Charlie Savage, and to every other journalist touching this subject – it would behoove him and them to to first verify and confirm, with officials of Yemen if possible, the crucial question of whether or not Yemen – which, I trust, is internationally considered to be a “governed place” – in fact “grants permission” for such U.S. assaults on its territory and sovereignty.

    Because without knowing whether or not permission has in fact been granted by Yemen for such a U.S. assault, we do not know whether the U.S. stands on any legal ground under international law, and thus whether or not such a drone attack might be considered an act of war by Yemen should the U.S. attack without permission. The Members of the U.S. Congress – solely charged and empowered with declaring war on behalf of this nation under its Constitution, might just be tangentially interested in this question, too.

    Harking back to the public position of our Executive Branch in 1841, when the U.S. was in a similar state of unequal military power with Great Britain, as Yemen is in today with the U.S., it was clear then how high the standard was considered to be by the American government, under the law of nations, for any nation to trespass, without permission, on the sovereignty of another nation in the name of “self-defense” – as related in a letter to Great Britain by our Secretary of State [prompted by the detention and state trial of one assailant in the vicious 1837 attack on the American steamboat Caroline, by volunteers directed by British Army and Navy officers, where those subjects of Great Britain, acting under broad military authority to repress an attempted rebellion in Britain’s Canadian colony, entered on the territory of the United States without permission from the United States, while the U.S. and Great Britain were in a state of peace]:

    Under these circumstances, and under those immediately connected with the transaction itself, it will be for her Majesty’s Government to show upon what state of facts and what rules of national [meaning international] law the destruction of the “Caroline” is to be defended. It will be for that Government to show a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it. It must be shown that admonition or remonstrance to the persons on board the Caroline was impracticable, or would have been unavailing; it must be shown that daylight could not be waited for; that there could be no attempt at discrimination between the innocent and the guilty; that it would not have been enough to seize and detain the vessel; but that there was a necessity, present and inevitable, for attacking her in the darkness of night, while moored to the shore, and while unarmed men were asleep on board, killing some and wounding others, and then drawing her into the current, above the [Niagara Falls] cataract, setting her on fire, and, careless to know whether there might not be in her the innocent with the guilty, or the living with the dead, committing here to a fate which fills the imagination with horror. A necessity for all this the Government of the United States cannot believe to have existed.

    Secretary of State Daniel Webster, April 24, 1841

    • mattcarmody says:

      That whole speech by Webster applies equally to the Israeli attack on the USS Liberty during the 1967 aggression carried out by Israel against Jordan and Egypt.

  10. Mary says:

    There is widespread agreement among the administration’s legal team that it is lawful for President Obama to authorize the killing of someone like Mr. Awlaki — regardless of his citizenship — if he is found in an ungoverned place or in a country that grants permission.

    And with this as the Obama legal team, we are supposed to be all afraid of a Palin legal team?

    Let’s just say “someone like” is quite a bit like “some say.”

    “someone like” isn’t a legal category, it’s not a military law of war category, it’s not anything.

  11. phred says:

    When I get manhandled by the TSA, which seems inevitable at this point, and Obama has to invite me over for beers to kiss and make-up, I just want to ask him one question, “what does “hope and change” actually mean to you”? Because, I can guarantee you, it does not mean to him what I thought it did when he was campaigning.

    • Kassandra says:

      They HOPE they can get the last CHANGE out of our pockets.

      the guns are swiveling inward, folks.

      and the R’s won’t impeach him on Constitutional grounds, it’ll be some birther thing. Bush already wiped his a** on the constitution and threw it in the toilet.

  12. OldFatGuy says:

    And please don’t forget that it’s NOT just Obama that is responsible for this outrageous practice. The Congress has the power to deny funding for specific actions by the Executive. The fact that the Democratic Congress CHOOSES not to (exactly like the Republican Congress CHOSE not to with Bush/Cheney) makes them just as responsible.

    I hope everyone will remember that in the voting booth in November.

      • bobschacht says:

        But Nancy Pelosi had more important, really important things to do. And besides, she didn’t have the votes. Or so she tells us. Which tells me more about the modern Democratic party than I really wanted to know.

        Bob in AZ

  13. Mason says:

    As a matter of conscience, I cannot and will not vote for anyone now serving in Congress and under no circumstances will I vote for Obama, assuming he’s a candidate for reelection in 2012.

  14. artguerrilla says:

    1. don bacon- *ouch* that’ll sting…
    (um, bacon bits, your forgetting a widdle ting called ‘amerikan exceptionalism’ )
    2. parsnippity- in point of fact, are we not in a continuing ‘state of emergency’, technically and really ?
    (and we *like* it that way ! )
    3. m’kaye: take heart, maybe our children won’t be the cowards we are…
    (otherwise it would be torches and pitchforks time…)
    4. powwow to the people – ass sunstein *definitely* has your butt on a list…
    (with a matching drone…)
    5. like nixxon to china, doesn’t it always take the defenders of a notion to betray it ? ? ?
    (for the record, i called the dem’rats betraying social security before saint obama was anointed…)

    on a related note, to flog a dead horse of a different collar that has already left the barn door open: how/why is it so-called ‘executive orders’ and ‘executive signing statements’ became the law of the land ?
    (*shhh*, don’t even mention *SECRET* ‘executive signing statements’…)
    if The They ™ hated us for our freedoms, do they love us now ? ? ?
    ’cause i’m having a real hard time loving all these freedoms we gots…
    art guerrilla
    aka ann archy
    [email protected]

  15. spanishinquisition says:

    Yup, according to Savage’s report, a Democratic DOJ is actually contemplating arguing to a judge that during wartime, the President can choose to kill anyone he wants to anywhere he wants to.

    If the leader of a country can kill anyone he wants anywhere he wants, what was the point of the Nuremburg Trials – or for that matter the Geneva Conventions. Thanks a lot Nobel Peace Prize Committee!

  16. Romberry says:

    If the President kills someone, they’re preparing to argue, it’s legal.

    Shades of the worst of Nixon there. “If the president does it, it’s not illegal.”

    If Watergate happened today, would it ever make it past page three? How far have we come? Maybe more appropriately, how far have we fallen?

    Many of my online friends that for years pretended to be principled liberals have in the last year and a half revealed themselves to be principleless Democrats. Actions that would have them howling if a Republican were to undertake them are met with silence or a shrug…’cause it’s one of ours and he means well. I’m not too popular with much of that crowd at present, largely because when I was objecting to abuses of power, it wasn’t the party of the abuser I was objecting to, it was the actual abuse.

    I’ve been asking folks if there was no principle they held inviolable, no step that was a step to far. Those are apparently uncomfortable questions.

    My problem is that I do have principles that I hold inviolable, and lines that I am not willing to cross. And this administration is in many areas just as bad as the last in that respect. Heck, in some areas this administration is in fact worse. How can I be expected to put principles aside and support it? I just can’t do it. I don’t want to do it. And I won’t do it.

    • phred says:

      I’ve been asking folks if there was no principle they held inviolable, no step that was a step to far.

      A lot of us having been asking such questions and finding confused silence in response.

      I wish I knew what it would take to switch powwow’s train (see #27) to another track, but at the moment I cannot imagine what lever will do the trick.

  17. BMcGarth says:

    “The whole thing makes me want to cry about what our country has become ”

    It’s why I keep saying…it makes no difference if the GOP are in control after Nov…cuz sure as day they will screw up & it’s only then, maybe, we can get Americans to care about our country.

    A Few months ago I managed to hear Bill Press,you know the guy who likes to pretend he is a progressive on radio…yeah that one who always find a DEM vs GOP squabble to show his progressive bonafides..outside of the regular DEM-GOP dust-ups his progressivism is nowhere on the radar,advocating the murder of anyone by the Prez who is speaking ill of America….

    Folks most of these people don’t believe in progressivism it’s a means for ’em to con their way to a wealthy existence pretending to be progressive.

  18. lakeeffectsnow says:

    Pennsylvania Governor Ed Rendell said he was “deeply embarrassed” by his Office of Homeland Security’s use of a bulletin that labeled opponents to gas drilling as “environmental extremists” and said the information had come from an anti-terrorism consulting firm that produces information about potential threats to the state’s security and infrastructure.

    Rendell said he had terminated Pennsylvania’s $125,000 contract with the Institute of Terrorism Research and Response, which produced the document.


  19. alabama says:

    “Dad, your civil rights thing is sooo nineteen-sixties!” (This from my anarchist daughter, who turned forty last month)…..

  20. Garrett says:

    Robert Chesney, tacked on down at the bottom in what would seem the balance position, was on the Detainee Policy Task Force. Discussion of administration views on the political complications of detention often seems to come from that direction.

    Chesney blogs and writes law review articles with Jack Goldsmith. (The blog has a post about this NYT article.)

  21. bluedot12 says:

    I’n not a lawyer but the arguments for killing someone, american or no, are either to protect states secrets or we are at war with someone or a country. If that someone is hiding in another country, say Russia, then we hve to get permission.

    I don’t like the idea of states secrets b/c that says you can just whack anyone and then call it a secret. Geez, I know how to win the next election now.

    But then there is this problem. What if the guy really is dangerous to us like bin Laden and he is hiding in Russia? We are at war with him and his buddies (that includes Americans who profess to be so)aren’t we? If so , ask the russians pretty please to turn him over or we will bomb the shit out of you like we did to Afghan in 2001. (well maybe not Russia, but you get the idea.) So Yemen turn the mother over or we will bomb the shit out of you. If you need our help in that just say so.

    • powwow says:

      What if the guy really is dangerous to us like bin Laden and he is hiding in Russia? We are at war with [those responsible for the 9/11 attacks and those associated with them, including any such Americans] aren’t we? If so, ask the russians pretty please to turn him over or we will bomb the shit out of you like we did to Afghanistan in 2001. (well maybe not Russia, but you get the idea.) So Yemen turn the mother over or we will bomb the shit out of you. If you need our help in that just say so.

      Overlooking your humorous but conditional application of the law of nations (“well maybe not Russia [since they can compete with us militarily], but you get the idea”) – although the very unfunny fact remains, I’m afraid, that our government now pretty much practices by default such a dishonorably-conditional, one-sided, and thus lawless, application of the law of nations – something like what you surmise is in fact what is called for under the law of nations. Except that no threat of violence need accompany our request for Yemen’s help, and only after they fail to counter any genuine threat to us posed by al-Awlaki, do we have any right to act ourselves (without Congress authorizing war against Yemen) – and then only with the required proportionality in any response of ours to one man’s (even hate-inciting or conspiratorial) speech (such proportionality, in my opinion, based on what we know today, absolutely rules out summary execution by drone strike, with or without risk to any bystanders, even if al-Awlaki were not an American citizen), under the law of war.

      In other words, when a nation is genuinely at war with another – or, in our increasingly-absurd case, with a non-state ‘group’ or groups, in large part because that unchecked state of “war” empowers the president to cut our independent third branch of government out of the cowed “political branches” picture – and a genuine member of the enemy of either side is hiding in or unknowingly harbored by a neutral state, the sovereignty of that neutral state (Yemen in this case) may be violated (without committing an act of war) if, but only if, that state doesn’t (or can’t) act to apprehend the enemy upon being alerted to its presence, either in accordance with its own laws, or to help the nation at war to seize and detain him under the law of armed conflict. I’m sure there are many such actions required for a nation to maintain a state of neutrality – which law of armed conflict experts (such as Gary Solis and David Glazier) could detail for Savage or others reporting this story.

      That’s why it’s so important to understand both what the government of Yemen’s official position is about the U.S. (or U.S. drones) entering its territory in pursuit of Anwar al-Awlaki, and what the nature of al-Awlaki’s actual role and threat is, under the law of armed conflict, as part of the Constitutionally-authorized armed conflict in which we are engaged against those responsible for the attacks of 9/11, and those associated with them.

      At this point, given the public information that’s available, Yemen seems very much within its neutral-state rights to question the characterization of al-Awlaki as an enemy belligerent fighting us, or as any “part of” the enemy forces against which Congress has authorized hostilities (and related detention, under the law of war) by our military. Legitimate law of nation rights which conflict, no doubt, with the asserted, but fraudulent, interpretations of the law of nations, and its subsidiary law of war, with which the Executive Branch (and the media, in the absence of judicial or congressional checks) is now thoroughly contaminated.

      It seems that the AUMF conflict is the Obama administration’s pretense for targeting al-Awlaki, rather than any need to imminently act inside a nation with which we are at peace in “self-defense” per se (which the leisurely targeting of al-Awlaki, on its own, clearly exposes). Which should mean that the rules of neutrality under the law of nations very much come into play here, and thus the identifying features of both our legitimate “enemy” and evidence of al-Awlaki’s membership in that enemy force should determine any responsibility Yemen has, as a neutral state under the law of nations, to act against him, or else to let the U.S. act against him on its territory.

      Complicating the whole scene, of course, are the pallets of American tax dollars no doubt being privately showered on members of the government of Yemen to let the U.S. have its way with Yemen’s “sovereignty,” which citizens of its undemocratic state are likely helpless to protest or meaningfully resist. [Good thing that the U.S. Congress and President literally have money to burn on their “defense” budget, to helpfully keep the law of nations at bay…]

      The letter that Secretary of State Daniel Webster wrote to Great Britain in April, 1841, about a case with similar overtones to al-Awlaki’s, was roundly criticized by multiple Senators at the time on law of nations grounds – although the section I quoted above was singled out for praise even by those critics. That’s because Webster gave way to British demands that the captive assailant (Alexander McLeod) be released from U.S. custody (or at least he agreed to try to release him, since it was the State of New York, not the federal government, holding him), as though he was a prisoner of war detainee under the law of war, rather than a criminal defendant under the laws of the State of New York in peacetime.

      The other day I posted a sampling of such criticism of Webster’s action from Senator John C. Calhoun of South Carolina. Here’s a similar take from Senator (later President) James Buchanan of Pennsylvania, from a June 15, 1841 Senate speech (where he’s replying to responses to his first Senate speech on the matter) – which, I think, illustrates how the United States today is following in the British Empire’s haughty, imperious steps then:

      Can the perpetrators of this barbarity be claimed by their Government, and upon its subsequent assumption of their responsibility and their guilt, must they be released and permitted to go free by virtue of any imperative mandate of the law of nations? The British Government and the American Secretary of State have answered this question in the affirmative; whilst I trust I shall be able to prove that the best writers on public law [meaning the law of nations], as well as both reason and justice, have answered it in the negative.


      In my opening remarks I laid down the principle in as broad terms as any of [the opposing (though not on this point) Senators] have used. I freely admitted, that all the modern authorities concurred in declaring, that the law of nations protects individuals from punishment in the courts of an invaded country, for hostile acts committed there, in obedience to the commands of their own sovereign, during a state of public war; and that, too, whether this war has been solemnly declared or not, and whether it be general or partial. [emphasis in original] War has its own laws, and such individuals, if seized, can only be held as prisoners of war. They cannot be punished. Upon this principle of the law of nations we all agree. It is upon its application to the circumstances of the present case, and upon that alone, that we differ.


      The Senate will understand that I speak of offensive war, such as the capture of the Caroline must have been, if it were war at all. I admit that any appropriate authority on the spot, from the necessity of the case, may repel invasion, and thus make defensive war. What does Vattel say upon this subject? He declares that “war, under the law of nations, can never be waged by any but the sovereign power of a State.” – Vattel, page 291. [In America, of course, we, the people, are sovereign, acting through our representatives in Congress. The President, and thus the military, is charged with faithfully executing our will, as expressed by Congress, as well as the law of nations, within Constitutional bounds. – pow wow]

      And again, in page 398, he says:

      “The right of making war, as we have shown in the first chapter of this book, solely belongs to the sovereign power, which not only decides whether it be proper to undertake the war, and to declare it, but likewise directs all its operations, as circumstances of the utmost importance to the safety of the State. Subjects, therefore, cannot of themselves take any steps in this affair; nor are they allowed to commit any act of hostility without orders from their sovereign.” [emphasis in original]

      These elementary principles, necessary to prevent nations from being involved in the calamities of war by every rash adventurer, or by any authority short of the sovereign power, are laid down by Rutherforth as well as Vattel, and every other writer on the law of nations. They are so simple and so consonant to human reason, that I shall read no other authority to establish them.

      That there may be no escape from the argument, permit me to read a sentence or two from the favorite author of the Senators, (2 Rutherforth’s Institutes, 507,) to show what is the nature of public war.

      “Public war,” says he, “is divided into perfect and imperfect. The former sort is more usually called solemn, according to the law of nations, and the latter unsolemn war. Grotius defines perfect or solemn war to be such public war as is declared or proclaimed.”. . . “Unsolemn or imperfect war between nations, that is, such wars as nations carry on against one another without declaring or proclaiming them, though they are public wars, are seldom called wars at all; they are more usually known by the name of reprisals or acts of hostility.” [emphasis in original]


      Having thus established, by the highest authority, that public war, whether perfect or imperfect, can alone be waged by the command of the nation or sovereign power; let us proceed to inquire whether the capture of the Caroline was an act of public war by Great Britain against the United States.


      This act of hostility was authorized alone by Colonel McNabb of the Canada militia, and not by Queen Victoria, or even the supreme provincial Government. […] And yet, in order to save McLeod from the punishment due to his crimes, Senators have been compelled to contend that this lawless attack was an act of public war committed by Great Britain against this country. Unless they can establish this position, their whole argument sinks into nothing.


      But what is the consequence if the members of a nation make reprisals, or commit acts of hostility, as Col. McNabb and Captain Drew have done, without the authority of the sovereign power? Are they, in such a case, protected from punishment for their criminal acts in the courts of the nation, whose laws they have violated? Let Rutherforth answer this question. (vol 2, p. 548.)

      “Thirdly: Grotius confines the external lawfulness of what is done in a war, which is internally unjust, to solemn wars only; whereas the external lawfulness in respect of the members of a civil society extends to public wars of the imperfect sort, to acts of reprisals or to other acts of hostility. By giving the name of public war to reprisals or other acts of hostility, which fall short of being solemn wars, I suppose the reprisals to be made, or the acts of hostility to be committed, by the authority of a nation, though it has not solemnly declared war. For if the members of the nation make reprisals, or commit acts of hostility without being thus authorized, they are not under the protection of the law of nations: as they act separately by their own will, so they are separately accountable to the nation, against which they act.” [emphasis in original]

      Now, sir, here is McLeod’s very case in so many words. Human ingenuity cannot escape from it.


      If the Queen of England or the King of the French, in time of peace, can send emissaries into our country to excite insurrection; and if, when detected in crimes against our laws, the foreign sovereign can rescue them from punishment by approving their conduct, we are then no longer supreme and independent within our own territory.


      The Senator [from Virginia, Mr. Rives] admits that war, and war alone, can render these sovereign laws impotent. But even in war a captured soldier is not to be delivered up on the demand of his Government. He is to be held as a prisoner of war; and if McLeod were in that condition, [British Minister] Mr. Fox would have no right, under the law of nations, to demand his release, though he might justly protest against his punishment.


      It is certain that volunteers who enter the military service of another country for the purpose of acquiring skill in the art of war, are, when taken by the enemy, to be treated as if they belonged to the army in which they fight. This is the principle laid down by Vattel.


      The object of all human punishment is to prevent crime; and it is certain that such lawless attacks on the sovereignty of an independent nation will be most effectually prevented, if the persons engaged in them know that they will certainly be punished under the laws of the nation which they have attacked. This is the clear principle of public law.


      Even if McLeod had been a regular soldier, and acted under the command of his superior officer, this would not have relieved him from punishment under our laws; although it might have made a strong appeal to our feelings of mercy. There are many instances on the records of British courts of justice, in which soldiers have been held justifiable for disobeying the illegal commands of their officers.


      An outrage has been committed on our national sovereignty in time of peace – an outrage of such an aggravated character as to have justified an immediate declaration of war on our part; and what have we been told by the British Minister? […] It is ridiculous to pretend that war existed between the two countries. Mr. Fox [the British Minister] resorts to no such subterfuge. On the contrary, so far as we can ascertain his views, he justifies the outrage upon a principle which no American Senator would dare to defend. He has very modestly informed us, in substance, that we were too impotent to preserve our neutrality in the civil war which existed in Canada, and that, therefore, it became necessary for her Majesty’s Government to perform this duty for us. To use his own mild and moderate language –

      “The place where the vessel (the Caroline) was destroyed was nominally, it is true, within the territory of a friendly power; but the friendly power had been deprived through overbearing piratical violence, of the use of its proper authority over that portion of territory.”


      The British minister, in effect, tells Mr. Webster, “we cannot regard the rights of your sovereign and independent States; it is the Government of the United States which we hold responsible; we therefore demand of you the release of McLeod from the custody of the State of New York, and we entreat you deliberately to consider the serious consequences which must follow from your refusal.”


      We had demanded reparation for the outrage on the Caroline. The British Government had delayed for three long years to give any answer to our demand. But when McLeod was arrested, that Government, through their minister, avow and justify this outrage – demand his release, and threaten us with the consequences in case we should refuse. Our Secretary at once yields, admits that we have no right to try and punish McLeod, and sends the Attorney General to New York to obtain his release.


      If the Secretary had refused to yield to the haughty pretensions of that Government, and informed them that McLeod must be tried, and if found guilty must be punished, all might have passed away without serious difficulty. But having yielded to their demand for the surrender of McLeod, the people will now insist that they shall yield to our demand for atonement for the outrage on the Caroline.

      – Senator James Buchanan, June 15, 1841

      • powwow says:

        Complicating the whole scene, of course, are the pallets of American tax dollars no doubt being privately showered on members of the government of Yemen to let the U.S. have its way with Yemen’s “sovereignty,” which citizens of its undemocratic state are likely helpless to protest or meaningfully resist. [Good thing that the U.S. Congress and President literally have money to burn on their “defense” budget, to helpfully keep the law of nations at bay…]

        Here’s a case in point, that I didn’t pay close attention to until now:

        (AFP) – Jun 6, 2010

        LONDON — A US cruise missile carrying cluster bombs was behind a December attack in Yemen that killed 55 people, most of them civilians, Amnesty International (AI) said on Monday.

        The London-based rights group released photographs that it said showed the remains of a US-made Tomahawk missile and unexploded cluster bombs that were apparently used in the December 17, 2009 attack on the rural community of Al-Maajala in Yemen’s southern Abyan province.


        A military strike of this kind against alleged militants without an attempt to detain them is at the very least unlawful,” said Philip Luther, deputy director of AI’s Middle East and North Africa Programme.

        Yemen’s defence ministry had claimed responsibility for the attack without mentioning a US role, saying between 24 and 30 militants had been killed at an alleged Al-Qaeda training camp.


        “The fact that so many of the victims were actually women and children indicates that the attack was in fact grossly irresponsible, particularly given the likely use of cluster munitions,” Luther said.


        [Amnesty International] said photographs it had obtained showed damaged remains of the BGM-109D Tomahawk land-attack cruise missile.

        “This type of missile, launched from a warship or submarine, is designed to carry a payload of 166 cluster sub-munitions (bomblets) which each explode into over 200 sharp steel fragments that can cause injuries up to 150 metres (about 500 feet) away,” an AI statement said.

        Does Yemen have the capability to fire such a missile from a warship? Or is this an obvious example of U.S. tax dollar-bribed “cooperation” and cover, provided courtesy of a corrupt Yemeni government, for (unlawful) U.S. military action on Yemen’s “neutral” sovereign territory?

        And since Yemen, through its defence ministry, seems to be publicly taking responsibility here for an evidently “unlawful” attack on its own citizens, getting “permission” from that government to launch drone strikes inside its territory – in order to target U.S. citizen al-Awlaki (and anyone else who happens to be ‘in the way’ of that drone or drones) – may technically meet the letter of the law of nations, but acting (with excessive force) on nothing more than the permission of a government headed by ruthless lawbreakers, in order to attack citizens helpless under their arbitrary, capricious rule, ought to be beneath the United States, its armed forces and their commander-in-chief.

        P.S. Much of the background on what’s required under international law, to lawfully conduct targeted killing, is available in this June, 2010 report by the UN Special Rapporteur on extrajudicial executions, Philip Alston.

  22. bobschacht says:

    I think Obama has been ignoring us (those folks who actually have reservations about administration power-grabbing) because he doesn’t think we care enough to actually do anything about it.

    What he may not realize is the corrosive power of disillusionment. VP Biden was challenging the Left today by trying to make a big deal out if the differences at stake, but those reasons (all of them good) are deflated by the general disillusionment with Obama’s squandering of moral authority over the past year and a half. They better wake up.

    Bob in AZ

    • Garrett says:

      About state secrets:

      Some officials have argued that invoking it in the Awlaki matter, about which so much is already public, would risk a backlash….

      But other officials have cited last week’s ruling as a reason to invoke the state secrets doctrine in the Awlaki lawsuit. They have also argued that few people are likely to perceive its use in this case as covering up an injustice.

      Public opinion can make a difference. It’s a very frustrating and discouraging environment. But public opinion can make a difference. The tipping points on issues might sometimes be close.

      They said about the same concerning the Omar Khadr prosecution too.

  23. MikeD says:

    The case for claiming state secret at plea is far better than the case that it is a political question, rather obviously so in my view, and so I actually am fairly convinced that Rivkin is being transparently partisan here.

  24. MikeD says:

    Comment deleted – I mistook in the comment which argument being considered Marcy was referring to in saying they were preparing to argue, “If the President kills someone, [] it’s legal.” In the political question argument (which has not been advanced – and what lawyer doesn’t “consider” all arguments available to her?), the government would indeed be arguing that from a substantive legal standpoint, the president can kill anyone he wants pursuant to the Commander in Chief clause. This goes to my view that the political question argument is transparently worse legally (and a hundred times more horrifying civicly) than the state secret protection, since that a) stems from a statute and not an interpretive claim on the Constitution, and b) collapses the Constitution’s restriction on Executive power into true substantive meaningless, rather than merely restricting procedurally the courts’ ability to apply same – which is not to say it doesn’t render it meaningless, only that I prefer a statutorily-dependent, procedural meaningless to a Constitutionally inherent, substantive one (all according to the different implications of the two arguments, not in any real sense, of course).

      • MikeD says:

        IANAL, so I cannot do the notion, er, “justice” in a real post. But I’d be interested to hear if the blog authors would agree with this assessment.

  25. MikeD says:

    I wrote

    the political question argument is transparently worse legally (and a hundred times more horrifying civicly) than the state secret protection, since that a) stems from a statute and not an interpretive claim on the Constitution, and b) collapses the Constitution’s restriction on Executive power into true substantive meaningless, rather than merely restricting procedurally the courts’ ability to apply same – which is not to say it doesn’t render it meaningless, only that I prefer a statutorily-dependent, procedural meaningless to a Constitutionally inherent, substantive one (all according to the different implications of the two arguments, not in any real sense, of course).

    …but I changed the referent midcourse. Please allow the bolded portion to read, “since the political question argument a) stems from an interpretive claim on the Constitution rather than a statute,” (“and b)…”) If you’re still reading, thanks.

  26. Mason says:

    There is widespread agreement among the administration’s legal team that it is lawful for President Obama to authorize the killing of someone like Mr. Awlaki — regardless of his citizenship — if he is found in an ungoverned place or in a country that grants permission. (The details of any arrangement with Yemen are unclear.)

    Why should any president under any circumstances have the power to unilaterally order someone murdered without due process of law?

    I read the Savage article and all of the comments here, many of which are quite good at parsing international law, Supreme Court decisions, and assorted circumstances, but I keep returning to the question that I just posed and none of the explanations and rationales make sense to me, much less overcome my deep sense of foreboding.

    Of course, I’m coming at this issue from an ethical and moral point of view instead of indulging in a purely legal analysis.

    Obviously, I disagree with the majority decision in the Ninth Circuit’s en banc decision. The decision is outrageous because it allows the government to actively conceal its intentional destruction of innocent people’s lives by simply asserting that state secrets would be revealed if the victims of its misconduct were permitted to sue the government. Neener neener, because the secret is the misconduct, the people who authorized and carried it out, and the reasons they did so. IMO this decision is in the same category of offensive decisions as the legendary Dredd Scott decision.

    The discussion about the viability of various legal arguments to support Obama’s claim that he can order anyone killed anywhere in the world, so long as he decides that person is materially supporting terrorism, AND no one can question or challenge the basis of his decision, no matter how arbitrary and capricious, is totally fucking insane.

    I feel the same overpowering horror and revulsion to the debate about legal tactics within the administration that I had when I saw the film about a government sponsored secret meeting at a chateau deep within the Black Forest attended by captains of industry and generals in the military to discuss the FINAL SOLUTION to the “Jewish Problem.” I apologize because I don’t recall the name of the film.

    Injustice like this breeds contempt for government and the courts. History teaches us that violent and bloody revolutions suddenly explode into being when people reach a consensus that their government is the primary cause of their discontent, elections are rigged, and the courts are indifferent and unwilling to provide them with a peaceful and fair opportunity to seek redress. With discontent rising like the waters that breached the levees in New Orleans, the only thing missing in the United States is the spark.

    I don’t know about y’all, but to me it’s not a question of whether we can avert violent revolution, it’s a question of when it will happen.

  27. Mason says:

    Assuming the plaintiffs petition SCOTUS for cert in the 9th Cir. case, and SCOTUS granted the petition, I believe there’s a pretty good possibility the decision would be 4-4 with Kagan recusing herself. Roberts, Thomas, Scalia, & Alito vs. Kennedy, Breyer, Ginsberg, & Sotomayor. That’s just a guess, but a 4-4 decision has no precedential value because it’s a tie (i.e., no majority). That means the 9th Cir. decision would stand. However, it would not be binding precedent on any other circuit.

    I would expect the DC Cir. might align itself with the 9th, as might the 2nd, 3rd, 5th, 7th, 10th & 11th. Don’t know about the 6th, although I think it’s more likely than not that it will go the other way as might also be true of the 8th.

    Am clueless about the 1st.

    With a split in the circuits and a tie in SCOTUS, we could wind up with a rather bizarre situation with plaintiffs and their lawyers desperately trying to figure out how to get a case filed in the 6th, assuming it goes the other way, that would survive a motion to dismiss for lack of jurisdiction or change of venue to another circuit.

    Might help if the new Guantanamo is built in Kentucky.

    Now that’s a bizarre thought.

    Meanwhile, the tie in SCOTUS wouldn’t change until we get a new judge. I suspect Ginsberg will be the next to retire, or possibly Kennedy. Obviously, we’d want a justice who would rule against the Obama White House, so we definitely wouldn’t want Obama nominating the new judge.

    Dumping Obama in favor of a progressive Democrat to run in 2012 suddenly seems a lot more important than it did before the 9th Cir. awful decision.

      • Mason says:

        That would certainly make sense, but what will Kagan’s numerous recusals do the court’s workload? A bunch of 4-4 decisions ain’t gonna decide squat. Could be lots of splits in the circuits creating a hell of a mess.

        • bmaz says:

          Well, so far, Kagan has recused herself from over half of the merits docket for the coming Supreme Court term.

          If that’s what you are asking……