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Edward Snowden and the Meaning of the Espionage Act

June 25, 2013

Edward Snowden and the Meaning of the Espionage Act Post 9-11

 

June 25, 2013

R. Tamara de Silva

 

The point of demarcation between speech, whistleblowing and espionage has in some instances the aspects of a razor's edge.  Edward Snowden's criminal complaint under the Espionage Act was unsealed last Friday.  The Espionage Act has only been used three times since it became law during WWI.  In just five years, President Obama has used it eight additional times to prosecute whistleblowers under an elastic and theoretically boundless definition of what constitutes national security.  Since 2009, the Espionage Act has been used against whistleblowers more than in all other Presidential administrations in the past 90 years combined.   Whether one thinks Edward Snowden is a traitor for exposing a clandestine wiretap dragnet of Americans and foreigners, or a patriot for exposing a truth that may not otherwise ever become known to his countrymen, is largely beside the point.  Snowden's case reveals a lot more as we approach another Independence Day about how one day has changed our system of government.   The arguments advanced to suggest that the NSA's powers are checked by two other branches of government, are largely specious.  What Snowden's case reveals is the extent to which Americans gave the Executive Branch a blank check after September 11, 2001 and what that actually means for every American hereafter.

In the Inferno, when Dante begins his entrance into the gates of hell, guided by no one less than the great Virgil, he comes across a bleak warning, lasciate ogne speranza, voi ch'intrate or, "abandon all hope ye who enter here."  After 9-11, contrapasso to the United States Constitution, as if capitulating to the admonishment that greeted Dante, Americans abandoned a measure of hope in America's core values and founding principles.   A bi-partisan Congress signed the Patriot Act-in the absence of any public outcry, and almost no media attention or intellectual grasp of what it would actually mean. 

Civil libertarians are criticized as if denouncing the Patriot Act or any infringement upon the Constitution is a naive demand for ideological purity.  However, this criticism demonstrates a stunning unfamiliarity with the legal, historical and normative meaning of what constitutes America.  It is only after all a common desire to live under a system of laws with checks and balances that drew every single wave of immigrants to our shores-especially, the very first ones.  They knew what it was like to live with tyranny, and the unchecked power of a few men.  They were traitors to the Crown, fanatics and ideologues-in sum they were the quintessential Americans.   It was a desire to live under the rule of law as opposed to the rule of men or a monarch or autocrat that is profoundly American.

After September 11, 2001, for the first time, America, the place that had seemed the birthplace of sedition, would begin to transform itself away from its grand republican historical experiment towards more tried historical clichés we have seen made manifest in other places.  Even as the United States Supreme Court reminded President George W. Bush's administration in Hamdi v Rumsfeld, that even in national security matters, we remain heirs to the Magna Carta, " heirs to a tradition given voice over 800 years ago," and that invoking national security did not give the Executive a blank check-the bulwarks against any real check on the Executive Branch in matters stated to be of national security,( also as so happens almost exclusively also defined by the Executive), were gone.  The Magna Carta is important because the barons that would bind their king, a thing never before done insisted that their king's power and that of any subsequent executive would be confined to the rule of the law.  It is upon this one idea above all others upon which America was founded -that we are a country ruled by law as opposed to the historical alternative we had determined to get away from- rule of men, unanswerable to law and capable of wielding power -unchecked and therefore in application, absolute.  We have striven to come a long way backwards in time.

What Edward Snowden revealed is a secret monitoring of all cell-phone calls and Internet usage of American citizens.  This is permissible under Section 215 of the Patriot Act, which justifies the NSA's roving dragnet of wiretaps on all Americans and even before 2008, warrantless wiretaps from cell phone and Internet service providers.   The NSA monitors which numbers call which other numbers-information termed metadata.  What is unclear is whether there are any limits on the use of the metadata gathered in the roving wiretaps.  For example, even though we are told the information gathered is merely the numbers dialed between phones, now at least three former NSA whistle-blowers, including Thomas Drake and William Binney have pointed out that it is possible to access the content of the communications without a warrant depending upon the hunch of an analyst with sufficient security clearance.   No one outside the NSA knows how long this information is stored or whether it can be used across agencies.  For instance, can your statements in a phone call made to a relative be used against you years from now in an IRS audit or a criminal investigation?  Does your use of a phone constitute an endless autobiographical deposition where you are committing yourself to statements that any agency of the government can subsequently use against you, perhaps merely to prove you were lying?  Could these ever be played to a jury to show bias or contradiction?  Can this information be used in civil litigation?  Can it be hacked or sold?   How do you know?  And to the extent this is not a rhetorical question- where are the boundaries, if any, to an individual's zone of privacy?

 

Lower High Ground

"He who fights with monsters might take care lest he thereby become a monster. And if you gaze for long into an abyss, the abyss gazes also into you."  Friedrich Nietzsche

 

More importantly, what happened to national higher ground, based on principles of freedom and human dignity we believe worthy of exporting to the rest of the world?  After the Patriot Act and 9-11, we decided that the same practices we condemned the Japanese for engaging in as torture in WWII, such as waterboarding were not even all that unpleasant.  We went so far as to write legal memoranda justifying various methods of torture including, as then President George W. Bush's Justice Department lawyer John Yoo reasoned, the crushing of a child's testicles in front of his father-all became legally justified.  It is not surprising that the modern day Torquemada, John Yoo along with Dick Cheney call for the immediate imprisonment of Edward Snowden considering that Yoo wrote legal memoranda justifying various torture methods that could have just as easily been the playbooks used by Saddam Hussein's finest interrogation experts in the infamous White Lion-what is more surprising is his professorship at University of Berkeley's School of Law.   It was not always so.

Conservatives were once opposed to torture on principal.  President Ronald Reagan aggressively prosecuted torture, getting the United States to sign the United Nations Convention on Torture in 1984-a measure he championed stating,

 

"The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.

The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called "universal jurisdiction." Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution."

 

What is significant in the treaty banning torture that President Reagan signed is its broad definition of torture and its categorical repudiation of it:

Article 1's definition as ""any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession"

Article 2:

"No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture."

 

 

President Reagan was right albeit diametrically opposed with the near unanimity of current conservative thought on the matter.  After our country stooped to torture practices we once criticized in rogue nations and despotic regimes, both a 6,000 page Senate Intelligence Report and 600 page non-partisan report of the Constitution Project yielded the conclusion that while the United States of America had engaged in torture, post 9-11, these torture practices never yielded any information that could not have been obtained without torture.[[1]]

What Snowden's case and his flight to escape a fate similar to Bradley Mannings means, is that at it core, until the Patriot Act, the United States was ruled from inception by laws, with checks and balances.  Post 9-11 we have given the Executive Branch and the past two administrations free rein in regards to justifying our country's use of torture, indefinite detention, warrantless wiretaps, the usurpation of judicial due process by the invention of something Attorney General Eric Holder calls, "Executive due process," the use of drones to kill Americans and noncombatants everywhere, at the sole discretion of the President-in short the unquestioned elimination of the Fourth Amendment and much of due process of law as long as they said it had something to do with national security or fighting terrorists. 

Many liberals and Bush era civil libertarians are suddenly at ease with the decade long holding of uncharged, cleared prisoners at Guantanamo Bay, the enaction of a permanent suspension of habeas corpus through indefinite detention and the invention of whatever "executive due process" is because they like President Obama and just did not like George W. Bush.   As if somehow every President that gets elected will also be someone they equally like and therefore trust, presumably making parts of the Bill of Rights superfluous for Americans from now on.  This is the same non-thinking thinking that dim witted masses have historically always displayed whether buying tulips, attending rallies for Mussolini, unquestioningly goose-stepping to their political party, or buying at the top of every financial bubble - a singular confirmation bias enjoyed by crowds everywhere at every age that only looks as incredulously stupid as it is in historical hindsight.

After the Patriot Act, America gave the Executive Branch a blank check.   In doing so, we have set the stage for every prospective President to rule in a manner not only never intended by the founding values of this country-but in accord with less a country of laws, than a country of men.  In this context the collection and unknown use of metadata and surveillance of Internet activity should not be all that surprising. 

The surreal irony of the United States seeking the return of a dissident from Russia or China aside-Edward Snowden's case, like that of several whistleblowers before him, speaks to how a great free nation now values the transparency of its government but perhaps as equally also, dissent.  Were Snowden to return to the United States, he would meet the fate of Bradley Manning.  Fear of being treated like Manning may make his entreaties for asylum from cruel and unusual punishment far more credible not only with Hong Kong but Ecuador and Iceland.

 

The Espionage Act

After entering WWI, Congress enacted the Espionage Act of 1917.  Parts of that statute took aim at expression, dissent and freedom of the Press under the First Amendment stating in pertinent part that it would constitute to the crime of espionage to,

 

(a) willfully to 'make or convey false reports or false statements with intent to inter- fere' with the military success of the United States or 'to promote the success of its enemies'; (b) willfully to 'cause or attempt to cause insubordination, disloyalty, mu- tiny, or refusal of duty, in the military or naval forces of the United States'; or (c) will- fully to 'obstruct the recruiting or enlistment service of the United States.' [[2]]

 

President Woodrow Wilson's proposed version of the statute would have further suppressed press expression by defining espionage even more vaguely as, "to publish any infor- mation that the President, in his judgment, declared to be 'of such character that it is or might be useful to the enemy.'"[[3]]  Fortunately, due to the objections of many lawmakers, including Senator Henry Cabot Lodge who described the language as granting government officials the ability to censor "legitimate public criticism," President Wilson's press censorship provisions did not get included in the Espionage Act. 

What Congress realized in refusing to pass President's Wilson's language that would have made freedom of the Press dependent upon the will of the White House, was exactly what Supreme Court Justice Potter Stewart understood as the purpose of the free press-"The primary purpose of the constitutional guarantee of a free press was . . . to create a fourth institution outside the Government as an additional check on the three official branches."[[4]]  A free people are presumed capable of making better decisions when having more facts rather than merely being told what to think by assimilating a controlled message.   In other words, we are country designed to have get our information from the reporters and newspapers, not a monolithic pr firm or political campaign.

The purpose of a free Press is to provide an outside check and balance on the government so that information does not get released to the American people merely through a state sanctioned media.  Americans are only able to vote based upon information they gather and they cannot be wholly reliant on an American equivalent of the state run Pravda.  In a free country, in accordance with America's founding values, the exchange of information and free discourse must be protected- a free Press, and even more an open Internet and social media, become invaluable guardians of freedom.

Since 2009, we are using the Espionage Act to seemingly selectively prosecute what classified information can be leaked-depending upon who is doing the leaking.  For example, last August 2012, the Justice Department indicted a former State Department contractor Stephen Jin-Woo Kim for leaking classified information about North Korea's nuclear intentions to Fox News correspondent, James Rosen.   The Justice Department had subpoenaed Associated Press emails and made it clear that it would prosecute the press for reporting classified information.

Kim's criminal defense lawyer, Abbe Lowell pointed out to the District Court that the White House had leaked much more sensitive but equally classified information to journalist Bob Woodward to write his book, the Obama Wars.  No one in the Executive Branch would be prosecuted by the Executive Branch's Justice Department for leaking classified information-fitting the letter of criminality dictated within the Espionage Act.  Of course not.  Why Mr. Lowell argued, was Kim being prosecuted for doing less? Unfortunately, selective prosecution is not a defense but Mr. Lowell's point is unimpeachable.

The Espionage Act (18 U.S.C. §793 (d)-(f)) is a statutory bar against the willful dissemination of classified national security information-which is defined in the statute as,

any document, writing, code book,

signal book, sketch, photograph, photographic negative, blueprint,

plan, map, model, instrument, appliance, or note relating to the

national defense, or information relating to the national defense

which information the possessor has reason to believe could be used

to the injury of the United States or to the advantage of any

foreign nation, willfully communicates, delivers, transmits or

causes to be communicated, delivered, or transmitted or attempts to

communicate, deliver, transmit or cause to be communicated,

delivered or transmitted the same to any person not entitled to

receive it, or willfully retains the same and fails to deliver it

on demand to the officer or employee of the United States entitled

to receive it; or

What is significant about §793 (d) of the Espionage Act is that however broadly information is defined as classified (keep in mind more and more information is increasingly, even by government accounts, over-classified at the cost of billions of dollars per year-often to keep information getting from one government agency to another), whether it is legally obtained or not, it becomes a crime to disclose the information to "any person not entitled to receive it."[[5]]  By many accounts, a great deal of what the government classifies as top-secret, need not be classified as such.[[6]] 

This broad provision of the Espionage Act makes it possible for the government to prosecute Wikileaks, Glenn Greenwald, who interviewed Edward Snowden, and newspapers like the New York Times and Washington Post, which have often reported on information given by NSA whistleblowers because they report the information to an audience that is "not entitled to receive it."  Technically, newspapers violate the letter of this law in telling the stories of NSA whistleblowers, but would you really want to see the Press silenced?  Would you be better off, not knowing that torture was practiced, that there were secret prisons called black sites, the real status of foreign wars, Internet surveillance or warrantless roving wiretapping?  Would it be better not to reveal faulty intelligence and engage in another Iraq War...to many who deny that the Iraq War was a failure, the answer is simpler and such question unnecessary.

The current administration's liberal employment of the Espionage Act contradicts the spirit of another important law, the federal Whistleblower Protection Act of 1989.   This Act protects federal whistleblowers who work for the government and report agency misconduct by prohibiting a federal agency from taking retaliatory action against the whistleblower.   As a candidate-elect, President Obama had admired the Whistleblower Protection Act stating on his transition website:

 

Protect Whistleblowers:  Often the best source of information about waste, fraud and abuse in government is an existing government employee committed to public integrity and willing to speak out.  Such acts of courage and patriotism, which can sometimes save lives and often save taxpayers dollars, should be encouraged rather than stifled...We need to empower federal employees as watchdogs of wrongdoing and partners in performance.[[7]]

He would soon alter his stance on whistleblowers and leakers.  His first prosecution was that of senior NSA official, Air Force officer and whistleblower Thomas Drake, who was charged with violation of the Espionage Act in 2010 for leaking information about the NSA's illegal warrantless surveillance of Americans. "I was faced with a crisis of conscience...What do I do -- remain silent, and complicit, or go to the press?"[[8]]

Drake's prosecution was less than successful and its exposure of the illegal practices likely resulted in the NSA subsequently going to Foreign Intelligence Surveillance Court or FISA court to get warrants-something that would not have occurred otherwise.

 

FISA-No Check or Balance

FISA courts are not a substitute for actual checks and balances because a FISA court is not a regular court.  Unlike in a regular court, FISA courts are secret, their proceedings are secret and they only hear from one side-the government.  Typically, an FBI agent swears in an affidavit the reasons why a warrant is needed in a particular instance.  Unlike in any other court of law, one of the eleven District Court Judges sitting in a FISA court has no basis in fact to deny the request.  Only one side is represented and there is no factual discovery that takes place-there is no questioning of the veracity or completeness of the information upon which the agent makes the request, no subsequent scrutiny, hence there is no reason to ever deny a request.  No countervailing evidence is ever presented-no evidence need be presented at all other than the word of the affiant.  A judge has no basis to deny a request much less assimilate enough information to form the foundation of an opinion.  Sure enough, the FISA courts have never once actually denied a request for a warrant but asked for clarification-leading to an approval rate of 99.7%.  This is not exactly a robust check upon the Executive by the Judiciary; even though these are real Article III District Court Judges-it is simply not judicial oversight as in any other Article III court. 

The one saving grace of the NSA going to FISA court under the administration of President Obama, is that it is going to a court of law-under President Bush's push for an Executive power expansive enough to grant warrantless wiretaps for all long as it chose-it did not bother.

Another check and balance said to be in place upon the Executive is Congressional oversight in the form of the Senate Intelligence Committee.  This is even less oversight than the FISA court.  On March 12, 2013, when Director of National Intelligence James Clapper appeared before the Senate Intelligence Committee to give sworn testimony, the following exchange occurred:

 

 Sen. Ron Wyden (D-Ore.): "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"

 

James Clapper: "No, sir."

 

 

If the Director of Intelligence can lie, and perjure himself before Congress with absolute impunity-the same body that is supposed to exert some oversight over his operations, this is less a check and balance of one branch of government over another but something out of the court in Lewis Carroll's Alice in Wonderland.  No one would think Mr. Clapper to have ever lied to Congress were it not for an Edward Snowden or Thomas Drake or William Binney.  Not only is there no accountability-there is no actual oversight.  The Senate takes the word of Mr. Clapper, who can and did misrepresent the truth because it cannot independently verify or form a factual basis upon which to conduct oversight in any other manner.  The only thing missing is were a Senator in seeming homage to the Queen in Alice in Wonderland to demand a sentence first and a verdict later.

There is too steep a political risk for either political party to appear weak on terrorism however statistically small the risk of an actual terrorist event occurring is in America.[[9]]   Both political parties have embraced the creation of a private and public national security surveillance leviathan where only a few elected officials know the workings of the national security state but thousands of private contractors and their employees have top-secret security clearances.   Unfortunately, Congress is not incentivized beyond hyper-political blame avoidance and the appearance of continually appearing tougher than the other party on national security to think of the long term interests of America's civil liberty or the Constitution.  

For defense contractors, like Booz Allen Hamilton, and its parent company, the behemoth private equity fund, Carlyle Group, there are hundreds of billions of reasons each year, in the form of massive government contracts, to have the American people terrified into accepting more surveillance, more cyberwarfare contracts and escalating security threat inflation, which will pay for it all at the public trough.  There is a revolving door between the NSA and Booz Allen Hamilton.  Mike McConnell left Booz Allen to become President Bush's second Director of Intelligence-also serving under President Obama.  He returned to Booz Allen to a renew his employment there for $4.1 million a year.  Mr. Clapper came from Booz Allen and would likely return there after defending the government's operations made through his former and future employer.

Oversight of the Executive branch in any matter deemed to involve classified information and national security is effectively nil.  To the extent that there are checks and balances on the Executive at all-they lack independence and robustness.  There is no real oversight.  The value of whistleblowers has never been greater.  

Remember on this Fourth of July that when we call ourselves Americans, it is really the Constitution and its values that have bound all who came to America's shores, to partake of the great republican experiment we call America.  You cannot tune out the revelation of completely clandestine surveillance activity, renditions or permanent suspensions of civil liberties on the basis that its political unless it is really America and not politics that you do not care about.@

R. Tamara de Silva  



[2] Espionage Act of June 15, 1917, ch. 30, 40 Stat. 219

[3] 65 CONG. REC. 1695 (1917)

 

[4] N.Y. Times Co. v. United States 403 U.S. 713, 728 (1971)

[7] Office of the President-Elect, Ethics Agenda, http://change.gov/agenda/ethics_agenda/

 

The President as Executioner

March 6, 2013

The President As Executioner; the Unconstitutionality of Targeted Killings of Americans on American Soil

By R. Tamara de Silva

March 6, 2013

 

       In the 2004 decision of Hamdi v. Rumsfeld, the Supreme Court of the United States reminded President George W. Bush's administration that, "we are heirs to a tradition given voice over 800 years ago" by the signing of the Magna Carta and the idea insisted upon by the barons to their king, that his power and that of any subsequent executive would be confined to the rule of the law.  America was founded on this one idea above any other-that we are a country ruled by law as opposed to the historical alternative we had determined to get away from-the rule of men, unanswerable to law and capable of wielding power that would never be unchecked and therefore in its application, absolute.  So it was that American began-in a deeply held commitment to avoid tyranny.  A fair part of this stubborn legacy was set aside yesterday by Attorney General Eric Holder in a letter, which was released in answer to Senator Rand Paul's questions about the Administration's nominee for director of the Central Intelligence Agency, John Brennan.[1]  Mr. Holder's letter dated March 4, 2005 stated that while very unlikely, the President, after conferring with him, could kill an American citizen by drone even within the United States if he thought he must.  

       Mr. Holder's letter clarifies the White House's position on the extra-judicial killing of Americans contained in what has come to be called, the Drone Memo.   I have written more extensively about what the Drone Memo means here.  The import of the Drone Memo is that a high ranking official of the Executive Branch can now kill an American if he deems that American a "continuing threat to the country."  No actual evidence prior to killing is deemed necessary by the Drone Memo.  In fact, there need not be an imminent threat to the United States nor even, "clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future."[2]

       What Mr. Holder's letter states is that it is within the sole power of the President to kill Americans on American soil, without providing them a trial, a jury, any due process, notice, or their death justified by the existence of any concrete and articulated standard.  

       This is unconstitutional for many reasons, foremost among which is that the Fourth and Fifth Amendments exist... the seeming unwillingness of Congress to exercise its Constitutionally mandated duty to serve as check on the Executive and prevent Executive overreach, especially when it comes to matters as monumental as taking American lives, is another matter entirely.  The Drone Memo makes it clear that the Executive Branch does not need to have clear evidence of an imminent threat or any evidence of imminent harm to make a targeted killing of an American-this plainly violates the Fourth Amendment's guarantee of protection against unreasonable searches and seizures.  The Fifth Amendment grants upon all Americans the right not to be deprived of life or liberty without due process of law.  No notice of warning is given to an American before they can be killed according to the Drone Memo-again violating the Fifth Amendment's due process clause. 

       Article I, Section 9, Clause 3 of the United States Constitution also prohibits the federal government from passing bills of attainder-this is alternately termed the Bill of Attainder clause.  This was put into the Constitution to prevent the federal government, as had been the practice in common law, from passing a law or act stating that a certain person would be executed because they were deemed by their government to have committed treason.  The founding fathers wanted to ensure that in America, there would never be the equivalent of the English Law of Treason whereby the state or a tyrannous legislature would dispose of a dissenter or critic by declaring them an enemy of the sovereign-without trial or hearing.   There are only two civil liberties that are protected in the Constitution against infringement by the federal government and the state governments, liberty against ex post facto laws and bills of attainder. 

       The United States Supreme Court has viewed the Bill of Attainder clause as an important separation of powers issue-one that prohibits legislative acts that affect the life or property of an American and call for punishment without a judicial trial.[3] James Madison in Federalist No. 44 wrote that, "Bills of attainder, ex post facto laws and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation."

 

Concocting Executive due process

       Attorney General Eric Holder had set the stage for making an end run around the Constitution last year when he invented, absent even the most gossamer thread of Constitutional authority, something called "Executive Due Process."  On March 5, 2012, he delivered a speech at Northwestern University Law School where he declared that the Constitution's guarantee of due process does not necessarily mean judicial due process (actually it does)-that it now can mean something called Executive due process.  Mr. Holder said that for a President to now deprive an American of life or liberty, that American did not first have to be provided with due process of law, the President just had to check with his Attorney General first.  That checking, according to Mr. Holder, constitutes due process.   

       Unchecked power allows for abuse and in its worst iteration, tyranny.  Getting away from unchecked Executive power was to a large extent, the impetus behind the American experiment. Mr. Holder would have the few bulwarks against pernicious law enforcement and illegal prosecution like trial by law, a jury, the right to counsel, the right to confront witnesses against you all supplanted by two men conferring about another, with no check on whether either of them could be in error or have any reason to be less than objective in deciding whether an American will be killed.  Mr. Holder's reassurances about the use of targeted killings through Executive due process are well intentioned and reassuring but they are not checks and balances against the potential misuse of an extraordinarily terrifying power. 

       Under the Constitution, no authority has ever been given to the Executive Branch to kill an American without due process of law, unchecked, unquestioned and unanswerable to any other branch of government.   Our system of government was intended to be established so that we would never find ourselves having to rely on the good nature of one or two men.  We are heirs to the Magna Carta because we instituted a government of checks and balances designed to guard against overreach by any one branch of government and to preserve the rule of law-not blind faith in a handful of men.  Our system of government was established on far more substantial foundations.  The ability to authorize targeted killings unchecked by any independent overseer, invites an abuse that is counter to our way of government-it is quintessentially, un-American.

 

Authorization for Use of Military Force

       What is the source of the President's newly stated authority to kill Americans? Congress passed the Authorization for Use of Military Force against Terrorists ("AUMF") in the wake of 9-11.  The AUMF has been invoked as the source of authority for the President to use targeted killings in other nations.  Pursuant to the AUMF, the President is authorized to use "all necessary and proper force" against those "he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."[4]  What is unclear is how this act provides the President authority to kill Americans suspected of terrorism who have nothing to do with 9-11--a premise of the act itself that circumscribes its application?

       This becomes a critical question because the government's definition of "associated forces" has never been defined.   What is worse, we invite the very possibility for abuse, which the Constitution's Bill of Attainder clause was designed to prevent--a shifting definition of terrorism.   This does not seem an impossible scenario if you consider a study funded by the Department of Homeland Security entitled, "Hot Spots of Terrorism and Other Crimes in the United States, 1970-2008," which found that terrorists were people, "reverent of individual liberty...suspicious of centralized federal authority or anti-government."[5]  This definition would include so many engaging people I know and respect specifically for their outspoken views on politics and their government.

 

Commander-in-Chief

       Article II Section II of the Constitution names the President as Commander-in-Chief of the armed forces.  This section vests the Office of the President with powers over the military that are to be shared with Congress-the degree of sharing has historically varied with Congress latterly taking a turn for the lackadaisical.  In the case of Al-Aulaqi v. Panetta, civil rights groups including the ACLU, filed suit against the government for the killings of United States citizens Al-Aulaqi, Samir Khan and the 16-year-old Abdulrahman Al-Aulaqi who were killed under President Obama's program of targeted killings in Yemen.[6]  In their briefings, the government stated that its authority to kill Americans abroad stemmed from the AUMF and more broadly, the President's war powers under Article II Section II.

       In their analysis, the government pointed out that the Supreme Court has permitted the use of lethal force in domestic law enforcement settings where a suspect poses a serious threat of physical injury to police officers.   The problems with using the law enforcement model for killings by drone in Yemen are numerous but I do not have to cover them because in the Drone Memo released on February 5, 2013, the Department of Justice stated that it found the President able to kill Americans even if there was no imminent threat of harm posed to the United States or evidence of a prospective harm.

       Why not simply send the Judiciary packing now?  Admittedly their inscrutability, when at times so much seems to rest on them-is likely irksome.  According to Mr. Holder that other branch does not have a say in the matter of targeted killings anyhow.  But before you toss your copy of the Constitution with the debris of the spring's cleaning, take heart-  I doubt these newfound and self-granted extra-Constitutional powers will survive judicial review.  And last I checked, no executive order had been directed at Marbury v. Madison.

       The Supreme Court made it clear to the Bush administration in Hamdi v. Rumsfeld that the War on Terror did not give the Executive Branch a blank check to violate the separation of powers doctrine or due process, "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."[7]   It is simply not as simple as Mr. Holder's letter or memo would suggest.@

R. Tamara de Silva

March 6, 2013



[3] See Fletcher v. Peck (1810), United States v. Brown (1965) and Marbury v. Madison (1803)

[4] Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified at 50 U.S.C. § 1541 note (2006))

[5] http://start.umd.edu/start/publications/research_briefs/LaFree_Bersani_HotSpotsOfUSTerrorism.pdf

[6] http://www.aclu.org/files/assets/tk_complaint_to_file.pdf

[7] Hamdi v. Rumsfeld, 542 U.S. 507, 5

UPDATE:

Senator Rand Paul holds a filibuster against John Brennan on Senate floor.  While he will not ultimately prevail, he remains committed to principle that the Constitution prohibits the President from assassinating Americans on American soil without any due process of law.

Sen. Paul speaking on Senate floor


What the Department of Justice's Drone Memo Means

February 7, 2013

 

What the Drone Memo Means

By R. Tamara de Silva

February 7, 2013

 

[W]e are heirs to a tradition given voice 800 years ago by Magna Carta, which, on the barons' insistence, confined executive power by "the law of the land."  Justice Souter and Justice Ginsburg, Hamdi v. Rumsfeld 542 U.S. 507 (2004)

 

       On February 5, 2013, a Department of Justice memo ("Drone Memo") was released to NBC justifying the President's killing of Americans by lethal force, such as by drones.[1]  The targeted killing of Americans as justified in this memo gives the Executive Branch a power over American lives that is at once unprecedented and terrifying in scope.   The idea of a government unilaterally assassinating its citizenry is fundamentally at war with America's Constitutional legacy, which was established with separate and equal branches of power specifically to limit the possibility of an abuse of government power or outright tyranny.  The issues presented in the memo have Constitutional implications that cease due process rights based upon what may be unsubstantiated accusations and go against traditions of justice dating back to the Magna Carta.  Americans need to understand what is at stake.  The Drone Memo justifies the assassination of Americans by the Executive Branch based on the equating of terror (a term and concept that is not defined in the memo) with war and making Americans into enemy combatants without any due process of legal proceedings for actions and associations that are similarly ill-defined.  This memo does outline an enlargement of Executive power over due process that is without historical precedent in American history.  It bears note, that the Drone Memo asserts for the first time in American history, the power of a President to assassinate Americans, unchecked and unanswerable to anyone, including the Judiciary and the Legislature.

       The legitimacy of a government that would kill its citizenry has been portrayed and accepted by many Americans as merely a political issue the idea being-if our guy is doing it, we must stand by him because after all he's not the other party's guy.  After all, the same people who once complained bitterly about renditions and enhanced interrogation techniques have no objection to mass killings by unmaned drones-with civilian and child casualties in the hundreds.  But this is not a political issue and looking at it in simplistic tribal terms will prevent the public from understanding its import to them.  It may be an unwritten rule to fall in line behind your party's line, but this is one instance worthy of exception.  According to a senior legal official in President George W. Bush's administration, no other President of any political stripe has ever before authorized the targeted killing of Americans.[2]  The import of this memo, on the heels of the Patriot Act, and the NDAA's striving for a permanent suspension of habeas corpus, among other recent laws, is nothing less than the crossing of a legal Rubicon that would now permanently allow for the suspension of the due process of law.  At a minimum, this memo strips Americans of the protections of Fifth Amendment and in so doing, alters what it means to be an American.  This administration's authorization to use deadly force upon Americans without any legal safeguard of due process has a legal and moral significance that is difficult to comprehend or quite honestly, believe.

       Never before have an American president and his Attorney General openly stated that the Executive Branch can bypass Due Process of law to kill an American-if they (solely at their discretion), think they have a good enough reason because they have invented something called, "Executive Due Process."  It is the Executive Branch, boldly asserting an absolute power to suspend a significant portion of the Bill or Rights, unchecked by any other branch of government and unfettered in the scope or protocols used in the exercise of this new power.

       It is not as I write this that I do not understand first principles.  A nation must exist before it can provide its citizens any rights, liberties or anything.  A nation must also be allowed broad latitude to protect its citizens.  Security was a large part of the bargain described by Hobbes for leaving a state of nature and war to enter into a social contract.  It is the function of the Executive Branch to protect the security of Americans.  Terrorism remains a tremendous threat and after two wars in Iraq and Afghanistan, it would be naïve to think that the sentiments behind terror groups like Al-Qaeda have diminished because of our war on terror-there is evidence to suggest the opposite case. 

       As the late Allan Bloom often remarked, the first principle of any nation state was no different from that of any individual's-it is and must always be, self-preservation.  With this understood, most Americans have accepted an implicit tradeoff and the loss of some civil liberties and privacy for the sake of national security.   However, what the Drone Memo does is give away two entire Amendments and the bedrock of the freedoms that are uniquely American.  It is as if Americans have become so cowered of terrorists after 9/11 that we would as a country surrender the soul of America and its most deeply held values for the promise of a hope of a bit more security.  

        But in giving absolute authority to kill an American to any one man, President, CIA director or intelligence officer, unfettered by the United States Constitution's prohibition of such, we are making America into a country of rule by the men who would wield this power-no longer is it a country of rule by law.  We cannot just rest on knowing we are protected by a Bill of Rights- we now have to hope for the good characters of those we elect because we have surrendered the laws that would have kept their power over our freedom in check.   In America, the protections of the Bill of Rights were never to be handed over to an elected official with whom we were told to just "trust" them.  This is not America- nor is it consistent with the historical point of the American experiment in the first place.

       In fact, the United States Supreme Court in Hamdi v. Rumsfeld ruled that we are not required to "just trust" the government in matters of indefinite detention either.  The Court in Hamdi reiterated the principle that the Executive Branch cannot detain an American citizen without some form of due process.[3]   Hamdi was a United States citizen arrested in Afghanistan and taken into the custody of a military prison in Virginia.  From there he filed a petition for habeas corpus that ended up in the Court, which ruled that Mr. Hamdi did have a right as an American to be heard before an impartial judge.  President George W. Bush's administration had argued that Mr. Hamdi had no rights as an enemy combatant and that it could dispense with Hamdi as they saw fit.

       Ironically, it is the decision in Hamdi on which much of the Drone Memo relies.  This is a spectacle of legal gymnastics whose logic is ephemeral.  The Obama Administration's lawyers try to make the case that Hamdi is distinguishable because he was detained-that it was feasible to detain him.  The Drone Memo asserts a right to kill an American if he cannot feasibly be detained, because he cannot feasibly be detained.  They are wrong.  If the Supreme Court believes an American has the right to appear before an impartial fact-finder before being deprived of his liberty, then that American should at least have that right before being deprived of his life. 

       The Fifth Amendment guarantees on all Americans the right to due process of law before the taking of life or liberty.  The taking of an American's life by the government legally, as common-sensically, demands a higher level of due process than being imprisoned or detained--not less. Does the separation of powers doctrine require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"?   Not according to the Court in Hamdi,

 

Finally, even if history had spared us the cautionary example of the internments in World War II, even if there had been no Korematsu,  there would be a compelling reason to read §4001(a) to demand manifest authority to detain before detention is authorized. The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security. For reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation's entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory; the responsibility for security will naturally amplify the claim that security legitimately raises. A reasonable balance is more likely to be reached on the judgment of a different branch, just as Madison said in remarking that "the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other-that the private interest of every individual may be a sentinel over the public rights." Hence the need for an assessment by Congress before citizens are subject to lockup, and likewise the need for a clearly expressed congressional resolution of the competing claims.[4]

 

 

       Societies have normative values and also ones that are pre-textual--designed to mask far baser values.  Historically, one nation that has effectively used the pretext of danger to the state to imprison all who would criticize it is the Soviet Union.  All societies have normative values and at times some of them are pretextual-designed to mask much baser values.  Security was a value with which the Soviet system used to hide the interests of its leaders from Nikita Khrushchev to Vladimir Putin.  A pretextual interest in security is used to control not only an entire population but also its public opinion.  Vladimir Putin has his own record of repressive psychiatry and the imprisonment of anyone whose only crime appears to be the insult of his vanity.

       America was established to guard against the assertion of pretextual values on the people by any one branch of government.  The American system of government has several ingenuous structural safeguards such as having three branches of government where each is in theory at least powerful enough to keep the other in check.  In writing down what rights a people had and suggesting the existence of many others, unenumerated like the right to privacy or to travel-America's founders established a system of rule by law and not men.  If for example a tyrant came into power, his power would be curtailed at the boundaries of the rights retained by the people, subject of course to Constitutional amendment, within the Constitution and specifically, the Bill of Rights.  In theory, as long as you could freely associate and assemble and speak, and your life and liberty were still protected by due process of law, there would be very real checks on the harm to be caused by any one elected official with pretextual values.  It is specifically because of our legal system and Constitution that we have, within our own borders, enjoyed being the freest people in the world.  The greatness of America and its attraction to so many immigrants has in large part always been its core values, tracing back to the Magna Carta, of human dignity, freedom of expression and individual liberty.

       America was the birthplace of sedition.  Born out of the fury and ideals of those who were then considered religious kooks, fanatics, terrorists and worse.  Not surprisingly, we became a nation, the envy of the world, where unlike everywhere else, you could say anything and not be locked up as a political prisoner because you have annoyed someone in elected office.  The First Amendment protects your speech and the Fifth Amendment guarantees that your life and liberty cannot be dispensed with just on the whim of someone in power.

       Due process of law is the most American of all civil liberties-it is nothing less in the American law to civil liberty than everything.  It is only because of the Fifth Amendment that you have a presumption of innocence.  Governments mean well and are filled with honorable prosecutors who care deeply about civil liberties.  However, they also make mistakes.  We have jailed people for decades only to find them exonerated by DNA evidence-we have even made erroneous executions.  If the justice system, with all the protections of due process intact can make mistakes, what can one man or two do without any check on their judgment and without affording the alleged target, any due process or notice whatsoever?  Is it possible that the Executive Branch can err in declaring someone an enemy combatant?  Why are its determinations unchecked by any other branch of government, as the Drone Memo would have them be?  Is this not in itself for such an enormous power claimed, so obviously at odds with the principle of a separation of powers? 

       Targeted killings of non-Americans have proven themselves to hit wide of their marks.  CIA Director, John O. Brennan once stated that there were no civilian casualties in drone strikes and then admitted that there were casualties but then stated that they were "exceedingly rare."  Many independent sources confirm over 3,000 militants and civilians have been killed by drones. Drone strikes have killed over 176 children in one country alone and unless this was the Administration's intention, how can it be argued that drone strikes do not make mistakes?  

       The Drone Memo also uses terms like "associated forces" and "imminent threat" that are nowhere defined and capable of shifting interpretation depending on who is using them and to fit what purpose.   What constitutes being an associated force?  Is intention required, or mens rea required or is this a crime that can be stumbled into?  For example, if an American is a social acquaintance of someone who looks at a website that is later considered to offer, "material support" (again a term undefined) by expressing opinions, does that American become an associated force of the offending American?  Are his family also in danger?  If they can be killed without any due process, these questions will never be answered.

       What about the shifting definitions of terrorism?  Is it that difficult to envision the power to kill Americans without due process being abused?  If you think so, then you may not be aware of whom the Department of Homeland Security considers a likely terrorist.

       In a study by the National Consortium for the Study of Terrorism and Responses to Terrorism entitled, "Hot Spots of Terrorism and Other Crimes in the United States, 1970-2008," which was funded by the Department of Homeland Security, terrorists are likely people, "reverent of individual liberty...suspicious of centralized federal authority or anti-government," including people who are extremely liberal or extremely conservative.  What about people who belong to the NRA or are against gun control-at what point do their convictions constitute a resistance that is deemed intolerable to their government?[5] 

       The Drone Memo asserts that questions about definitions like enemy combatants and imminent harm are the exclusive province of the Executive Branch, that they are not legal matters and hence not subject to judicial review of the courts.  The Supreme Court made it abundantly clear in Hamdi that the Executive Branch, despite the exigencies of the War on Terror, did not have a blank supra-Constitutional check, nor did get to violate the separation of powers,

 

In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully the Government's case and to be heard by an impartial adjudicator.

    In so holding, we necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.....

    Because we conclude that due process demands some system for a citizen detainee to refute his classification, the proposed "some evidence" standard is inadequate. Any process in which the Executive's factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short.....[6] 

 

       The targeted killing of Americans poses an unprecedented threat to due process.   Fortunately, I am convinced the arguments advanced in the Drone Memo would not pass Constitutional muster with the same Supreme Court that ruled in Hamdi.  But it has to get there and if it does not, Congress and the American people must act.  Congress should clarify what this memo means and identify the protocols in which it will be used with enough specificity so that the awesome power it assumes is not abused-and it is at least checked. The argument advanced in the Drone Memo is that the government should be taken at its word that it will be rigorous about identifying terror targets, which are American.  This is not a legally sufficient basis for eliminating due process for American citizens because the Executive Branch is not unbiased and as such it cannot be expected to be an impartial check on itself.  We were established as a nation of laws and not of men.  There is ample historical precedent against trusting any one branch of government or ruler with absolute power to take the lives of its citizenry-by the way, America was established in part to avoid the type of government in which such a power would be exerted unchecked upon its citizenry- remember?@

R. Tamara de Silva

February 7, 2013



[2] http://www.nytimes.com/2010/04/07/world/middleeast/07yemen.html?hp&_r=0

[3] Hamdi v. Rumsfeld, 542 U.S. 507, 521

[4] Id., Justice Souter and Justice Ginsberg opinion

[5] http://start.umd.edu/start/publications/research_briefs/LaFree_Bersani_HotSpotsOfUSTerrorism.pdf

[6] Hamdi v. Rumsfeld, 542 U.S. 507, 52-