Just when you thought it couldn't get worse

The O-gang has filed its response to the ACLU-CCR suit on behalf of Anwar al-Awlaki's father, who is seeking an injunction against the administration's declared intention to kill Awlaki without any sort of due process despite the facts that he is a US citizen, and is neither on or near any actual battlefield.

The response - big surprise - calls for the case to be dismissed out of hand. Pres. Hopey-Changey has already established a record showing that he does not want any of his actions questioned by the courts. What's important is the basis for the argument. I'm going to turn the next paragraph over to Glenn Greenwald:

At this point, I didn't believe it was possible, but the Obama administration has just reached an all-new low in its abysmal civil liberties record. ... [W]hat's most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is "state secrets": in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are "state secrets," and thus no court may adjudicate their legality. [Emphasis in original.]

I say again, Mr. President, as I did back in April, just who the hell do you think you are?

This has gone past outrageous right into depraved. I want you to imagine just 10 years ago reading a novel with a plot revolving around a president having the authority to kill US citizens simply on their own say-so, based on secret evidence no one outside their circle ever sees and which no court can review and no one can challenge. You would probably think the idea was too far-fetched to be taken seriously. But that is exactly the power Barack Obama is now claiming for himself.

I'm only having trouble deciding one thing: The WaPo reported that

[g]overnment lawyers called the state-secrets argument a last resort to toss out the case, and it seems likely to revive a debate over the reach of a president's powers in the global war against al-Qaeda. ...

Robert M. Chesney, a national security law specialist at the University of Texas School of Law, said that Obama lawyers would undoubtedly prefer not to stoke the state-secrets debate, or to risk judicial review of its claim to a borderless battlefield. ...

"You're trying to avoid a judicial ruling on the merits of the whole issue," Chesney said, adding, "But at the end of the day, if it's your best argument in a case you want to win, you're going to make that argument."

Which means that its inclusion in the brief is an indication that the government does not have a lot of confidence in its other arguments and thinks this is its trump card.

So here's the thing I can't decide: Does that make this more outrageous or not?

I expect there will be more to say about this, more than I can deal with here and now. But it's hard to express how angry and depressed at the same time it makes me.

Footnote: Marcy Wheeler points out that in its brief,

the government does not commit to the basis for its authority to kill an American citizen like Anwar al-Awlaki with no review.

That is, the government never actually makes a case for the authority it's claiming to order a hit on a citizen. They just assert the authority is there and focus on arguing that al-Awlaki's father doesn't have standing to bring the case and doggone it, even if he does, a presidential order to kill his son without due process is a "political question" that the courts shouldn't even touch.

(I thought the issues in the case revolved around the limits of executive authority and how that sort of question became "non-justiciable" is a mystery to me, but never mind.)

But as Wheeler points out, the O-crowd won't even commit to saying if al-Qaeda in the Arabian Peninsula (AQAP), the group with which Awlaki is allegedly involved, is part of al-Qaeda itself or just "associated" with it. That makes the entire argument problematical since the Authorization to Use Military Force (AUMF) passed after 9/11 only authorizes the president to act against those involved with or aiding and abetting those who attacked on that day - and AQAP did not exist at that time.

As a sidebar to the Footnote, she also mentions that the brief whines that the White House and military "simply can’t be expected to operate under 'generalized standards' and 'general criteria.'" Hmmm. Generalized standards. Aren't they what we call laws?

A Second Footnote: In response to the suit,

Justice Department spokesman Matthew Miller said that the groups are asking "a court to take the unprecedented step of intervening in an ongoing military action to direct the President how to manage that action - all on behalf of a leader of a foreign terrorist organization."

Besides referring to it as "an ongoing military action" with all the implications of "the battlefield is everywhere" so no one is ever captured "away from the battlefield," I guess means that in the minds of the O-gang, innocent until proven guilty is another "general criteria" to which the administration can't be expected to adhere.

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.