Friday, September 17, 2010

Why would that be? Here's one idea

Candidate Barack Obama promised "change," a new openness in government functioning and slammed the Shrub gang for its reliance on secrecy and claims of "national security" to conceal its foreign policy activities - that is, its criminality. President Barack Obama has proven the only "change" he is bringing is to make it worse.

Now, adding absurdity to injury, in what Glenn Greenwald pointedly labels "Obama in Wonderland" and a clear case of "sentence first - verdict afterward,"
[t]he Obama administration is considering filing the first criminal charges against radical cleric Anwar al-Awlaki in case the CIA fails to kill him and he is captured alive in Yemen. [Emphasis added.]
Greenwald also notes that the article says that counterterrorism officials "have revealed few specifics" about Awlaki's supposed terrorist activities and that
the only crime for which there appears to be any known evidence is one which not only raises serious First Amendment issues ... but also one that carries only a "15-year prison sentence." Apparently, though, if the law does not allow for application of the death penalty to a citizen whom Barack Obama wants dead, then all of that annoying "process" about indictments and evidence and trials and the like will simply be discarded with the imperious wave of a presidential hand and the death penalty imposed anyway.
This came just a couple of days after the O-crowd won a major legal victory in what the NY Times called "the administration’s efforts to advance a sweeping view of executive secrecy powers." In a split 6-5 decision, the Ninth Circuit Court of Appeals embraced a claim made by the DOJ of the bogus "state secrets privilege" and so dismissed a lawsuit against Jeppesen Dataplan Inc., a Boeing subsidiary.

The suit, Mohamed v. Jeppesen Dataplan, was filed by the ACLU on behalf of five former prisoners who say they were tortured in captivity. It accused the company of arranging flights for the CIA as part of the agency's secret rendition program in which prisoners were sent to other countries for imprisonment and "interrogation," that is, to be tortured.

A panel of the same court had ruled earlier that the privilege could only be invoked against specific pieces of evidence, not the suit as a whole. The majority overturned that decision, agreeing with the O-gang that it should be applied to the entire case.

Writing in Harper's, Scott Horton rips the court's embrace of the privilege claim, pointing out that by an international convention to which the US is a signatory, "the crime of disappearance connected to torture is a crime against humanity, with no statute of limitations and no defense of superior orders applicable" and that the state secrets privilege cannot be properly invoked to cover up evidence of a crime.

The majority of the justices seemed conflicted about their decision, calling it, in the words of Judge Raymond Fisher, a "painful" decision "reluctantly" reached. In an unusual move, the court ordered the government to pay the plaintiffs’ legal costs, even though they lost the case and had not requested such payment. Fisher also called on Congress to grant reparations to victims of CIA “misjudgments or mistakes," a proposal the dissenters labeled unrealistic; "a delusional fantasy" would be more accurate.

But whatever twinges of conscience the members of the majority may feel, the fact is that by their ruling, they have prevented victims of US-approved torture arranged by the CIA from even having their claims heard - even if those victims relied only on public information in pursuing their case. Simply put, they have essentially declared the courts off-limits to victims of torture.

But why? Why would the O-crew go to such lengths to block a suit even if no secret or classified information would be involved? Horton, calling the claim that protecting state secrets is essential to our security "risible," notes the real issue:
The dilemma faced by the Justice Department was rather that evidence presented in the suit would likely be used in the future (not in the United States, obviously) to prosecute those who participated in the extraordinary renditions process. Twenty-three U.S. agents have already been convicted for their role in a rendition in Milan. Prosecutors in Spain have issued arrest warrants for a further 13 U.S. agents involved in a botched rendition case that touched on Spanish soil. Prosecutors in Germany have opened a criminal investigation into the use of Ramstein AFB in connection with torture and illegal kidnappings. Prosecutors in Poland are pursuing a similar matter. And [UK] Prime Minister David Cameron was recently forced to brief President Obama on his decision to direct a formal inquiry which could lead to prosecutions tied directly to the subject matter of the Mohamed case.
Bottom line is that the intent is not to protect Jeppesen Dataplan, it's to protect the entire structure of criminality, the entire structure of kidnapping and torture, from being revealed. Which also leads to the unhappy and deeply unsettling conclusion that what we already know is only a small part of the whole.

Footnote: Circling back the Awlaki case, a suit filed by Awlaki's father with the support of the ACLU and the Center for Constitutional Rights seeks an injunction against the plan to kill him, saying it amounts to an extrajudicial murder. Buoyed by their win in Mohamed, the O-gang is determined to get the case thrown out but hasn't decided yet what the strongest argument or combination of arguments would be most effective.
[M]any in the administration are reluctant to air in court the case that Mr. Awlaki is waging war against the United States, in part because they do not want to concede that judicial review is appropriate for executive branch decisions on targeted killings.

Instead, they are seeking to have the lawsuit dismissed without discussing its merits.
Or, to put it another way, "Like we keep telling you: Shut yer trap."

But this is the bit that really got me:
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.
So there is "widespread agreement" in the world of President Hopey-Changey that he can on his own authority, subject to no oversight, order the murder of anyone he chooses, a claim even the Bushites never made. If that doesn't chill your civil liberties soul right through, you don't have one.

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