Articles Posted in Obama

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. 

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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.   Continue reading

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.
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A Tale of Two Classes of Defendant and Lanny Breuer

By R Tamara de Silva

January 28, 2013

 

“swaying power such as has never in the world’s history been trusted in the hands of mere private citizens,…after having created a system of quiet but irresistible corruption-will ultimately succeed in directing government itself.  Under the American form of society, there is now no authority capable of effective resistance.” 

Henry Adams writing about the corruption of the Erie Railroad for the Westminster Review in 1870, he described corporate influence growing to the point of being uncheckable with political parties that would sacrifice principle for accommodation.

 

       Last week, the Head of the Department of Justice’s Criminal Division, Lanny Breuer, announced his resignation.  His resignation is remarkable only in so far that it draws attention to the enormity of what he would not do.  Under Breuer’s watch, leaving aside some high profile and related insider trading prosecutions, not one senior Wall Street executive was prosecuted or even charged (by some accounts- not even investigated) with anything having to do with the worst financial crisis in American history-a crisis that resulted in a bailout of Wall Street banks and the financial sector at a cost to American taxpayers of between $43.32-$59.75 billion.[1]  A day before Lanny Breuer’s resignation, PBS’ Frontline aired an investigation about the failure of the Justice Department to prosecute a single senior banker involved in the mortgage crisis called, “The Untouchables.”  During this same time that the Department of Justice refused to go after a single head of a Wall Street firm,
they took a particularly hard line on a torture whistleblower (not the torturers), and many financial criminals responsible for not the billions caused by elite Wall Street firms but between thousands to hundreds of thousands like elderly couples for possible pension fraud, an appraiser in Florida, individuals who committed bank fraud by lying on mortgage applications and other criminals like pot smokers and Aaron Swartz.  It is not that I condone wrong-doing,
only a record of selective prosecution on steroids.  Lanny Breuer’s Justice Department exposed its full fury to the chubs of the criminal justice systems while systematically saving the titans and whales.

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Federal Judge in Health Care Case Orders Executive Branch to Explain Speech

By R Tamara de Silva April 4, 2012

It not typical in the course of oral arguments for a Federal Judge to assign the Department of Justice and the Attorney General a homework assignment. Yesterday, the Court of Appeals for the Fifth Circuit heard oral arguments involving the Patient Protection and Affordable Care Act (“ACA” or “Obamacare”) when something extraordinary happened. The Court was hearing oral arguments on an appeal by the Physicians Hospitals of America and Texas Spine & Joint Hospital, Lts, for the dismissal of an action they had filed for declaratory and injunctive relief against Kathleen Sebelius, as Secretary of the United States Department of Health and Human Services to prevent enforcement of Section 6001 of the ACA. During the Appellee’s arguments, Judge Jerry Smith, interrupted the Department of Justice’s lawyer, Dana Lydia Kaersvang to ask her whether the Department of Justice, an arm of the Executive Branch, agreed with statements made by President Obama that seemed to indicate that the Executive Branch did not believe the Judicial Branch had the power to overturn laws it found violated the Constitution.

Difficult Legal Issues in the Healthcare Case Before the Supreme Court

By R Tamara de Silva March 27, 2012
Arguments began yesterday before the United States Supreme Court on the future of President Obama’s healthcare bill, the Patient Protection and Affordable Care Act (“ACA” or “Obamacare”). The question of whether President Obama’s national health care plan would withstand the Constitutional challenges brought by the Attorneys General in twenty-six states was destined to be determined by the Supreme Court when after August 2011, the Court of Appeals for the Eleventh Circuit issued a 304 page opinion that the ACA would violate the powers of Congress under the Commerce Clause. After the Eleventh Circuit’s ruling there were two conflicting Circuit Court opinions on the law because the Sixth Circuit had upheld the ACA as not violative of the Constitution in June of 2011. The Supreme Court will decide upon the Constitutionality of the ACA based upon three criteria, the Commerce Clause, the Taxing Clause and the Necessary and Proper Clauses within the United States Constitution. None of the arguments are quite as clear cut, however as many people believe.

In Defense of Private Capital and Capitalism

By R. Tamara de Silva January 14, 2012

Is Mitt Romney guilty of capitalism? His opponents in the race for presidential nominee of the Republican Party have converged in their rhetoric and ideology with the Democratic Party and President Obama to decry that Romney’s actions at Bain Capital and the private equity model in particular, are wrong, so extremely wrong that they make him wholly unworthy of consideration of President of the United States. Whether or not the latter conclusion is true or false, their argument is not evidence of either conclusion. I have read that a majority of Americans tune out politicians unless they stand to benefit from a specific government program or benefit-this would be a rational instance of when to tune them out.[1 ] The Democrats and accusing Republicans are in error about private equity and capitalism. What is worse they are placing populism above this country’s core principles.