Going Astray – Obama and NATO Bombings in Libya

(photo: ???? ??? | B.R.Q)

EW and probably bmaz as well will likely have more to say on this one when they free up.

Charlie Savage reported on Friday that Obama rejected advice from both Jeh Johnson (Pentagon general counsel) and, even more significantly, Caroline Krass (the acting head of DOJ’s Office of Legal Counsel) when he availed to himself the power to continue bombings and killings in Libya, under the assertion that he’s, well, he’s just not being all that hostile in his bombing campaign.

Like Nixon in Cambodia, Obama did find supporters for his decisions about Libya. Ex-Yale Dean, current assassination proponent, Harold Koh (legal advisor for the State Department) apparently assured Obama that the bombings just do not rise to the level of being “hostilities” for which Obama needs Congressional permission. Robert Bauer, Obama’s White House counsel, reportedly provided his own version “yeah buddy” for Obama.

Just as Bush found it convenient to get his White House Counsel, Alberto Gonzales, to opine that as long as Bush designated his torture victims as being “illegal enemy combatants” (whatever the ultimate facts) he was exempt from war crimes prosecutions, Obama’s White House counsel is equally eager to tell Obama that, as long as he doesn’t call them “hostilities,” Obama can bomb any nation for any period of time.

Most importantly – all of this is being done in derogation of the Office of Legal Counsel opinion that the President has exceeded his authority. At issue, according to White House Spokesman Eric Shultz (Dan Pfeiffer was tied up) isn’t the very same, age old, typical power grab of any unchecked sovereign, but instead the age of the War Powers resolution.

“It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict,” Mr. Schultz said. “Those disagreements are ordinary and healthy.”

The Obama theory is that with 10 years of Bush-Obama battering of the psyches and vocabularies of of Americans and with some very dedicated government propaganda processes to boot, the meaning of the term “hostilities” has changed to exclude American or American led NATO bombings. And this is “ordinary and healthy.”  [cont’d.] (more…)

Going Astray – Obama and Nato Bombings in Libya

EW and probably bmaz as well will likely have more to say on this one when they free up.

Charlie Savage reported on Friday that Obama rejected advice from both Jeh Johnson (Pentagon general counsel) and, even more significantly, Caroline Krass (the acting head of DOJ’s Office of Legal Counsel) when he availed to himself the power to continue bombings and killings in Libya, under the assertion that he’s, well, he’s just not being all that hostile in his bombing campaign.

Like Nixon in Cambodia, Obama did find supporters for his decisions about Libya. Ex-Yale Dean, current assassination proponent, Harold Koh (legal advisor for the State Department) apparently assured Obama that the bombings just do not rise to the level of being “hostilities” for which Obama needs Congressional permission. Robert Bauer, Obama’s White House counsel, reportedly provided his own version “yeah buddy” for Obama.

Just as Bush found it convenient to get his White House Counsel, Alberto Gonzales, to opine that as long as Bush designated his torture victims as being “illegal enemy combatants” (whatever the ultimate facts) he was exempt from war crimes prosecutions, Obama’s White House counsel is equally eager to tell Obama that, as long as he doesn’t call them “hostilities,” Obama can bomb any nation for any period of time.   

Most importantly – all of this is being done in derogation of the Office of Legal Counsel opinion that the President has exceeded his authority.   At issue, according to White House Spokesman Eric Shultz (Dan Pfeiffer was tied up) isn’t the very same, age old, typical power grab of any unchecked sovereign, but instead the age of the War Powers resoluton.

“It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict,” Mr. Schultz said. “Those disagreements are ordinary and healthy.”

The Obama theory is that with 10 years of Bush-Obama battering of the psyches and vocabularies of of Americans and with some very dedicated government propaganda processes to boot, the meaning of the term “hostilities” has changed to exclude American or American led NATO bombings.  And this is “ordinary and healthy.”

Apparently the words “ordinary” and “healthy” have changed some over the last 40 years as well. For those civilian residents in Tripoli who were killed or maimed by NATO’s bombing run today, there is no translation dictionary or program current enough to convert their descriptions of the outcome of the NATO bombing into the words “ordinary” and “healthy.”  NATO provided an assist though – what happened wasn’t a bombing of civilians, but rather a strike on an unintended target. 

“[I]t appears that one weapon did not strike the intended target and that there may have been a weapons system failure which may have caused a number of civilian casualties.”

Cue up Obama’s spox to explain to us how words like “civilian casualties” have also changed a lot over the last few decades – in an ordinary and healthy way.  Maybe they’ll even bring on Henry Kissinger to help with the explanation.   

I don’t completely buy Glenn Greenwald’s take that Bush had “better” lawyers, because [now starts my paraphrase of Glenn’s point] some were prepared to threaten to quit over the NSA program (which they demanded be revised into an equally unconstitutional format) and others were prepared to blindly follow the lead without even knowing anything about why they’d be resigning, still, I will say that Bauer and Koh can easily fill the shoes of Gonzales and Bellinger.

Bush and “torture.” Obama and “hostilities.”  The one thing that we can rely upon is that the meaning of the phrase “Executive Power” has changed over the years. Unchecked, it will continue to change at an ever-increasing rate.  And for those of us who remember Obama’s “stern face” as he promised during primaries and camaigns to “restore the rule of law” we can only wonder when that phrase went so far astray as to encompass the things the Obama administration has done over the last few years. 

Raymond Davis: Diplomatic Immunity v. US Impunity

What happens with the Raymond Davis case, in the end, will likely not have very much to do with the Vienna Conventions. For that matter, we likely will never have enough of the unadulterated facts to know what should happen under the Vienna Conventions. But let’s suspend reality and see where an examination of the Vienna Conventions and the competing facts in the Davis case might take us.

As several reports have pointed out, there are numerous Vienna Conventions and the two that are likely to apply to Davis are the Vienna Convention of 1961 on Diplomatic Relations and the Vienna Convention of 1963 on Consular Relations. The VCs get wrapped in and out of discussions of passports and visa – so let’s separate and reassemble.

Diplomatic Passport. Our State Department issues passports needed for travel to other countries. Because of the State Department’s sole control over this document, it is looked at skeptically by Pakistanis in the Davis matter. The US says that, while it was not on him when he was captured and while it may have some discrepancies with other documents, Raymond Davis has a US issued diplomatic passport. Some have gone so far as to make this the equivalent of having diplomatic immunity, without anything more.

But that’s not how it works. Diplomatic immunity is derived, under VC 1961, by being validly attached to the embassy (mission) of a nation in which the “diplomat” is located. A diplomatic passport has no effect to attach someone to an embassy or mission. For example, a diplomat validly attached to the embassy in Iraq could travel to Germany on a diplomatic passport, but would not have immunity in Germany if they were not validly attached to the German embassy. So the question isn’t whether or not Davis had a diplomatic passport (or whether, if so, it was issued to an alias or issued after the fact), but whether he was validly attached to the US embassy at the time of his altercation in Pakistan.

Attachment to the US Mission/Embassy. For someone other than the head of mission, the general rule is that the sending nation (US) can “freely appoint” diplomats to its mission staff (Article 7), with a few caveats, and are then merely required to notify the receiving nation’s foreign ministry of the appointment/addition. The first caveat, also in Article 7, is that if the person being appointed is a military (more…)

It Starts with: “Hello, I am a Prosecutor in Nigeria…”

Former Vice-President Dick Cheney

[Ed. note: Mary provides some background on what may be up with Nigeria’s announced plan to charge Dick Cheney.]

… ready to sue your Vice President. Please send 130 Million Dollars by reply mail to …”

After the news about charges against Dick Cheney relating to the Nigerian bribery scandal it may be worthwhile to sip some coffee and swap clues on what the heck might (or might not) be going on. Let’s start with a little background on one sliver of a very complicated matter.

In 1995-2004, KBR was involved in a joint venture in Nigeria that included KBR/Halliburton; a Dutch subsidiary Snamprogetti Netherlands B.V/Italian parent ENI S.p.A. (aka Snamprogetti, ENI), a Paris-based oilfield engineering company Technip S.A., and a Japanese company, JGC. The joint venture set up some special purpose corporations (not that unusual when companies joint venture) in Portugal (okay, maybe they don’t always use Portugal).   The business entities and structures are pretty much oversimplified here, but since these pretty much track the pleas deals the Department of Justice worked out, let’s not make it more complicated.

This joint venture wanted to split up some liquefied natural gas (LNG) contracts in Nigeria that were going to be worth around $6 billion to them.  Those kinds of big contract almost always get split up, for various (and some actually pretty darn good) reasons.  When the “TSKJ” group was trying to get the liquefied natural gas (LNG) contracts, their bidding rival was another consortium, BCSA (Bechtel, Chiyoda, Spibat, Ansaldo).

Not to jump around, but for context, you need to know how the Nigeria scandal (arrangements to bribe Nigerian officials to get the LNG contract)  was “exposed.”  A former “Director General” of Technip, Georges Krammer, was accused of wrongdoing in a different deal (involving France’s Elf) and argued that he was just following company policy.  Supposedly, Technip hung him out to dry and he decided to return the favor by offering up info against Technip, regarding deals that included the Nigerian LNG bribes.

When the French began investigating, the Swiss and US and Nigeria also started investigations.  If, by investigation, you mean the thing that happens when you throw a hunk of raw meat into a pen of well fed dogs and see which one grabs it and growls loudest, whether it plans on doing anything much with it or not.  [cont’d.] (more…)

It Starts With: “Hello. I am a Prosecutor in Nigeria …

[Ed. note: Mary provides some background on what may be up with Nigeria’s announced plan to charge Dick Cheney.]

… ready to sue your Vice President. Please send 130 Million Dollars by reply mail to …”

After the news about charges against Dick Cheney relating to the Nigerian bribery scandal it may be worthwhile to sip some coffee and swap clues on what the heck might (or might not) be going on. Let’s start with a little background on one sliver of a very complicated matter.

In 1995-2004, KBR was involved in a joint venture in Nigeria that included KBR/Halliburton; a Dutch subsidiary Snamprogetti Netherlands B.V/Italian parent ENI S.p.A. (aka Snamprogetti, ENI), a Paris-based oilfield engineering company Technip S.A., and a Japanese company, JGC. The joint venture set up some special purpose corporations (not that unusual when companies joint venture) in Portugal (okay, maybe they don’t always use Portugal). The business entities and structures are pretty much oversimplified here, but since these pretty much track the pleas deals the Department of Justice worked out, let’s not make it more complicated.

This joint venture wanted to split up some liquefied natural gas (LNG) contracts in Nigeria that were going to be worth around $6 billion to them.  Those kinds of big contract almost always get split up, for various (and some actually pretty darn good) reasons.  When the “TSKJ” group was trying to get the liquefied natural gas (LNG) contracts, their bidding rival was another consortium, BCSA (Bechtel, Chiyoda, Spibat, Ansaldo).

Not to jump around, but for context, you need to know how the Nigeria scandal (arrangements to bribe Nigerian officials to get the LNG contract)  was “exposed.”  A former “Director General” of Technip, Georges Krammer, was accused of wrongdoing in a different deal (involving France’s Elf) and argued that he was just following company policy.  Supposedly, Technip hung him out to dry and he decided to return the favor by offering up info against Technip, regarding deals that included the Nigerian LNG bribes.  .

When the French began investigating, the Swiss and US and Nigeria also started investigations.  If, by investigation, you mean the thing that happens when you throw a hunk of raw meat into a pen of well fed dogs and see which one grabs it and growls loudest, whether it plans on doing anything much with it or not.  (more…)

Unconstitutional Surveillance & United States v. United States District Court: Who the Winner is may be a Secret – Part 3

[Part 1 & Part 2 have been the conventional parts of the Keith case analysis. Now we are going to get into areas that involve less what has happened, and more what is happening and opinion as to how what has happened might have an impact, depending upon the arguments raised to the court. So keeping in mind that on the opinion front, you get what you paid for, let’s see where this takes us. To evaluate the impact of the Keith case in a states secrets context, we have to back up and look at the Reynolds case.]

Parameters of the State Secrets Privilege Recognized in the Reynolds’ Case

The Reynolds’ case, United States v. Reynolds took place during World War II. The Government was sued for negligence resulting in the crash of a B-29, killing three civilians. When the families brought a lawsuit for damages, the DOJ sought to block any access to information relating to the crash. After a failed claim that Air Force regulations made the information privileged from disclosure, the Secretary of the Air Force tried a different argument.  He filed a document called a “Claim of Privilege” and, while he made the regulations argument again, this time he added another argument and a few carrots to the widows to try to win the court over:

[The Secretary] then stated that the Government further objected to production of the documents “for the reason that the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force.” An affidavit of the Judge Advocate General, United States Air Force, was also filed with the court, which asserted that the demanded material could not be furnished “without seriously hampering national security, flying safety and the development of highly technical and secret military equipment.” The same affidavit offered to produce the three surviving crew members, without cost, for examination by the plaintiffs. The witnesses would be allowed to refresh their memories from any statement made by them to the Air Force, and authorized to testify as to all matters except those of a “classified nature.”

(emph. added)
The District Court ruled that the Government would have to show the court in camera why national security was at risk if the witnesses were given information on how their husbands died. The DOJ countered that it would make witnesses available to the widows to examine, but it was not going to produce documents. The District Court then ruled that the appropriate response to the obstruction of discovery was to treat the issue of negligence as being decided against the Executive. On appeal, the Circuit Court agreed.

Cut now to the Supreme Court.

The Supreme Court created a privilege (or if you believe in international law 😉 it recognized an exception used in other countries) for the Executive to protect military secrets even in cases where this meant that a litigant would lose their opportunity to pursue a claim against the government. The Court believed that the military testing nature of the information and the fact that we were currently in a state of war counterbalanced the rights of the litigants, especially since they were being provided with the alternative opportunity of interviewing witnesses.

In the instant case we cannot escape judicial notice that this is a time of vigorous preparation for national defense. Experience in the past war has made it common knowledge that air power is one of the most potent weapons in our scheme of defense, and that newly developing electronic devices have greatly enhanced the effective use of air power. It is equally apparent that these electronic devices must be kept secret if their full military advantage is to be exploited in the national interests.

The Court then described the procedures the Executive would need to follow to successfully raise the privilege.

It is not to be lightly invoked.[18] There must be a formal claim of privilege, lodged by the head of the department which has control over the matter,[19] after actual personal consideration by that officer.[20] The court itself must determine whether the circumstances are appropriate for the claim of privilege,[21] and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.[22]

If such a formal claim of privilege (here, a “Reynolds’ Affidavit”) was filed by the government in a civil setting and there was a chance that military secrets would be revealed, the Reynolds Affidavit procedure could be used to not only bar a court from demanding that the government turn over information, but to prevent the court from ruling that allegations against the government be deemed admitted in light of the failure to provide discovery. Emphasis on the “could” because the court went on to provide a preliminary standard for review for a Reynolds’ Affidavit that involved weighing various interests:

In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. A fortiori, where necessity is dubious, a formal claim of privilege, made under the circumstances of this case, will have to prevail.

While the court on the one hand said that “even the most compelling necessity” is outweighed if military secrets are at stake, it still attempted to carve out as an exception cases where the use of the privilege would be “unconscionable,” as in a criminal setting:

Respondents have cited us to those cases in the criminal field, where it has been held that the Government can invoke its evidentiary privileges only at the price of letting the defendant go free.[27] The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. Such rationale has no application in a civil forum where the Government is not the moving party, but is a defendant only on terms to which it has consented.

So the judicial review analysis from Reynolds (some of which was dicta, as it did not involve a case before the court)was that:
a) there is no privilege unless the Executive properly invokes it;
b) if the privilege is properly invoked, the court weighs necessity to the litigant (or, as I might argue later, to the judicial system) versus need for the privilege;
c) if military secrets in a time of war are involved, no amount of necessity can overcome the privilege (with a possible exception for [unconscionable activity – edited]);
d) if necessity is “dubious” (as in Reynolds, since the widows were being given access to the witnesses) then a mere formal claim of privilege will prevail without further weighing the interests;
e) if the privilege is properly invoked, the court will not determine the non-disclosed facts against the government in civil litigation against it; but
e) if the privilege is properly invoked in a criminal case, then the government is required to release the defendant and drop the prosecution.

[In 2000, information relating to the Reynolds case was declassified, revealing that the crash resulted from a fire that started in the engine. Attempts were made to have the Supreme Court reopen the case by filing a writ of coram nobis (fraud on the court) but this was denied with no opinion. Plaintiffs then refiled in the lower courts, seeking to set aside the 50 year old settlement, but the Third Circuit decided that it did not believe that there had been a fraud on the court and that it might have been necessary to keep information about the workings of the B-29 secret or to keep details of the craft’s mission secret]

Reynolds at Work in the Keith Case.

In the Keith case, Attorney General Mitchell filed an affidavit that met the Reynolds’ requirements. As the head of the Department of Justice, who had control over the warrantless surveillance program and who had given personal consideration to and authorized the surveillance, Mitchell filed a formal claim that the information from the surveillance could not be released to a criminal defendant because of national security interests, despite Alderman (which had not involved a formal invocation of the privilege) and despite the Reynolds dicta that criminal cases involving a claim of national security privilege would be required to be dismissed.

Mitchell’s claims went well beyond what the Reynolds dicta had contemplated and asked that the court look beyond “legality” of surveillance in a criminal setting and instead elevate national security above the Fourth Amendment in the area of “intelligence” surveillance.  This is where the Keith case and how the Supreme Court handled that case offers insight into the states secrets privilege. Mitchell and the DOJ were claiming that the Executive’s “national security” function was so separate and severable from its law enforcement function that when it said it was acting for national security purposes, its actions were not reviewable by the judiciary and law enforcement cases could not be impeded based upon the acts of the Executive in pursuing its “national security” function.

Justice White and the “on the statute” Argument.

I think here the most interesting place to start is the separate concurrence of Justice White. Justice White wanted to handle the Keith case, not on Fourth Amendment grounds, but rather as a case of conflict between the Reynolds’ Affidavit Mitchell had given, and the requirements of the Congressional statute. Trevor Morrison, in an article found at the Columbia Public Law and Legal Theory Working Papers siteThe Story of (United States v. United States District Court (Keith): The Surveillance Power expands on the context of the Keith case. In this draft (beginning on page 22), Morrison describes Supreme Court bargaining involving  the Keith case opinions. In part, he discloses that Justice White’s position originally had support from Justices Burger and Blackmun as well.

Justice White’s “on the statute” argument was that, because of the fairly recent Congressional statute governing wiretaps, which spelled out what was required to be exempt from the statute, an affidavit invoking “national security” was not enough to sustain privilege. Rather, the Attorney General was required, because of the statute, to affirm within his affidavit the specific exemption provided by Congress and that the Executive’s actions fell within that exemption.

Morrison notes in his discussions that the Justice White approach could have reduced the Keith case to being about drafting rather than about the underlying issue of warrantless surveillance, and would have been followed quickly by a new affidavit from the Attorney General.

A statutory holding would simply tell future Attorneys General that their affidavits must more closely track the language in Title III’s disclaimer provision. It would amount to little more than a lesson in affidavit drafting.

p. 23.
I believe, though, that Morrison sells the drafting requirements a bit short with that analysis. In Reynolds, neither Congress nor the Constitution had spoken as to the government actions (military test flights) at issue. By contrast, in the Keith case, both Congress and the Constitution had spoken, at least in some fashion, to the government actions (seizing and searching private communications) at issue. In the Keith case, the Court was looking at a comprehensive statutory scheme that provided some exemptions for Executive “security” actions, but only limited exemptions.
White argued was that the first analysis should be whether the Attorney General affirme compliance with the statute.

Congress had established two branches of Executive action that it said was exempt from the statutory wiretap requirements. The first branch involved possible or potential hostile acts by foreign powers, collecting foreign intelligence essential to the national security or protecting national security information against foreign intelligence. The second branch involved overthrow of government and dangers to the structure and existence of government. The affidavit provided in the Keith case failed to specifically claim that the Executive’s warrantless surveillance of Plamdon, and hence its national security claim, fell under either branch of exemption.

Justice White’s opinion layered a second level of requirements on the national security privilege when there was a Congressional statute on point.  The first level was Reynolds and applied for military secrets and in the absence of Congressional input.  The second test, per Justice White’s approach, involves requiring the Executive to affirm compliance with applicable statutes including recitations as to the exemptions that applied if exmptions were relied upon.  Under Justice White’s approach, where Congressional statutes sspeak to activities the Executive is using to “collect intelligence,” then the Executive would be required to comply with both tests.

However, since Justice White’s opinion was only a separate concurrence, though, let’s look at the impact of the majority opinion on the invocation of states secrets.

The Powell Decision Impact on State Secrets.

Powell and the majority of the court met the Executive branch’s warrantless surveillance of Americans with a constitutional, rather than statutory, argument.  The focus of the opinion was that (unlike Reynolds) the Keith case involved a set of government conduct that was specifically covered by the Constitution. The Powell majority argued that even if Congress had authorized the Executive’s warrantless surveillance by statute, it would not matter because the Constitution and Fourth Amendment controlled over both Congressional statute and Executive national security claims.

In the case before it, the Court’s only remedy for the unconstitutional behavior was to affirm Judge Keith’s right to retain the illegal surveillance records and require that they be turned over to the defense, even over a national security interest claim by Mitchell. This aspect of Keith gets lost, but its clear holding was that when a procedurally proper  Reynolds invocation attempts to apply a state secrets privilege to actions barred by the Constitution, it fails.

But Powell was obviously troubled by the need for the government to at times engage in domestic surveillance for a domestic security need separate from law enforcement. The Powell majority collectively engaged in dicta to speculate as to how Congress (not the Executive internally) migh address the warrant requirement in a domestic security situation. That dicta is worth examining for its impact on states secrets invocations as well.

While the Powell majority dismissed the impact of Congressional acts if they attempted to overcome the requirements of the Fourth Amendment, it did want to encourage Congress to act to authorize domestic surveillance in a way that would be consistent with the Fourth Amendment and the Court’s judicial review holding in Keith.  The warrantless Plamondon surveillance was held clearly unconstitutional, but Powell speculated that wide latitude might be shown for surveillance involving only “foreign powers” or their agents: “We have not addressed and express no opinion as to the issues which may be involved with respect to activities of foreign powers or their agents.” Powell signaled, as had lower courts, that where there was no Congressional effort to address surveillance involving only foreign powers, that kind of surveillance would likely fall within Executive power and outside of the Fourth Amendment.

Powell then went on to discuss more generically domestic security intelligence surveillance v. criminal surveillance and provided a speculative list of actions that Congress might attempt to create a situation whereby the Executive could engage in domestic security intelligence surveillance in a manner that would allow that intelligence surveillance to be in compliance with the Fourth Amendment and exempt from Alderman production during a criminal trial.

Congress may wish to consider protective standards for the [domestic security surveillance] which differ from those already prescribed for specified crimes

It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of [criminal surveillance warrant applications] but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e. g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in [criminal surveillance warrant applications.]
. . . We do not attempt to detail the precise standards for domestic security warrants … We do hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe. (emph. added)

The takeaway from the Powell decision is that, even under a claim of national security privilege, the Fourth Amendment required prior judicial approval for the Court to hold that such surveillance for domestic security purposes was constitutional. The Court felt Congress might be able to come up with a statutory scheme which could provide for prior judicial approval of domestic security surveillance and that the Court might deem such a judicially authorized seizure and search of communications based on less than criminal probable cause to comply with the Fourth Amendment.

The combined takeaway from the White and Powell opinions is that every member of the Court who considered the case believed the Reynolds invocation of national security interests failed – Justice Powell and the majority because it did not comply with Constitutionally required prior judicial approval; Justice White because the Reynolds affidavit did not clearly state, on its face, compliance with Congressional statutes or exemptions (which he wanted to resolve before looking at the Constitutional argument).

Next up – Congressional efforts with FISA to first rein in, and now reel out, Executive power while avoiding judicial review and options that may still be open .

FDL Book Salon Welcomes Gregory Fried, Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror

Welcome Gregory Fried, and Host Mary.

[As a courtesy to our guests, please keep comments to the book. Please take other conversations to a previous thread. – bev]

Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror

Mary, Host:

Father and son, Charles Fried (former solicitor general of the United States under Ronald Reagan, legal scholar at Harvard University and author of Modern Liberty) and Gregory Fried (chair of the Philosophy Department at Suffolk University and author of Heidegger’s Polemos) have undertaken the daunting task of examining the limitations and excesses of modern day Presidential power to gather intelligence by torture and surveillance. In order to reach their ultimate conclusions as to the interplay of law, morality, civil community and political leadership, the Frieds review sources and thought from Aristotle to Machiavelli to the Bible, including principles from epieikeia to “dirty hands” to religious and secular precepts relating to human dignity. They have deliberately kept the conversation, “as wide as possible” in recognition that “ours is a nation founded in philosophy.”

While the authors are very clear on their own conclusions, they give an even-handed examination to competing arguments and points of view, legal and philosophical. With respect to torture, the authors use a painting by Leon Golub, titled Interrogation I, to serve as a visual focus for their discussion. This imagery reinforces that a serious discussion of torture must reach beyond a dry legal analysis and into the moral and philosophical underpinning of who we are and how our communities function. You cannot look at Golub’s picture and think that the first reaction of a man or woman should be to look up a statute or reach for a dictionary. For some, the discussions on torture may be too weighted towards a religious view that decries torture of man in part as the desecration of the image of God, but the authors also consider and at times propound a more humanist approach as well.

While they bring each of their backgrounds to bear, legal and philosophical, the Frieds reach agreement that the prohibition on torture should and must be absolute, despite consideration of the “ticking time bomb” scenarios commonly used to bolster the opposing arguments. They posit that torture is not wrong because it is illegal, but rather, it is illegal because it is wrong (and not just inherently, but absolutely, wrong). Golub’s picture provides a constant visual reinforcement that argument follows, rather than leads, when a basic and absolute wrong is at issue.  [cont’d] (more…)

FDL Book Salon Welcomes Gregory Fried, Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror

Welcome Gregory Fried, and Host Mary.

[As a courtesy to our guests, please keep comments to the book.  Please take other conversations to a previous thread. – bev]

Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror

Mary, Host:

Father and son, Charles Fried (former solicitor general of the United States under Ronald Reagan, legal scholar at Harvard University and author of Modern Liberty) and Gregory Fried (chair of the Philosophy Department at Suffolk University and author of Heidegger’s Polemos) have undertaken the daunting task of examining the limitations and excesses of modern day Presidential power to gather intelligence by torture and surveillance. In order to reach their ultimate conclusions as to the interplay of law, morality, civil community and political leadership, the Frieds review sources and thought from Aristotle to Machiavelli to the Bible, including principles from epieikeia to “dirty hands” to religious and secular precepts relating to human dignity. They have deliberately kept the conversation, “as wide as possible” in recognition that “ours is a nation founded in philosophy.”

While the authors are very clear on their own conclusions, they give an even-handed examination to competing arguments and points of view, legal and philosophical. With respect to torture, the authors use a painting by Leon Golub, titled Interrogation I, to serve as a visual focus for their discussion. This imagery reinforces that a serious discussion of torture must reach beyond a dry legal analysis and into the moral and philosophical underpinning of who we are and how our communities function. You cannot look at Golub’s picture and think that the first reaction of a man or woman should be to look up a statute or reach for a dictionary. For some, the discussions on torture may be too weighted towards a religious view that decries torture of man in part as the desecration of the image of God, but the authors also consider and at times propound a more humanist approach as well. (more…)

Unconstitutional Surveillance & United States v. United States District Court: Who the Winner is may be a Secret – Part 2

[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. In Part I we went into the background, predicate facts and surrounding circumstances of the Keith case. Today in Part 2 we will discuss the actual court goings on in more detail. – Mary]

District Court Judges Deal with the Mitchell Doctrine in Smith & Sinclair.

Before we can get to the actual Keith case, where the DOJ filed a mandamus against Judge Keith, we have to look at what Judge Keith did with the DOJ arguments in the Sinclair case. In his Memorandum Opinion, Judge Keith summarized the DOJ’s position:

The position of the Government in this matter, simply stated, is that the electronic monitoring of defendant Plamondon’s conversations was lawful in spite of the fact that the surveillance was initiated and conducted without a judicial warrant. In support of this position, the Government contends that the United States Attorney General, as agent of the President, has the constitutional power to authorize electronic surveillance without a court warrant in the interest of national security.

Judge Keith then went on to list several cases, one from the Fifth Circuit and two others from District Courts in Kansas and Illinois, respectively, where the government had been successful in a similar argument.

However, not every case had gone DOJ’s way and Judge Keith chose to focus on “the exceptionally well-reasoned and thorough opinion of the Honorable Judge Warren Ferguson of the Central District of California. United States v. Smith, 321 F. Supp. 424 (C.D.Cal.1971).” Judge Ferguson bucked the Mitchell Doctrine in very clear and even prescient terms. The opinion isn’t long and it’s well worth the read. Judge Ferguson deals very swiftly with the Omnibus Act argument and moves on to the Fourth Amendment issues, finding that whatever exceptions you may and may not find in a statute, they do not create an exemption from the application of the Constitution.

DOJ argued (and its an argument that those involved in illegal surveillance still mouth today, largely unchallenged) that the Fourth Amendment isn’t really about interposing independent magistrates and warrants, it’s about … being reasonable. DOJ argued that the Executive branch only had to be reasonable in its surveillance and that they can best decide, based on all the complex issues of national security, if they’ve been reasonable. Judge Ferguson, quoting from a prior Supreme Court case, exposed that this argument would mean that the Fourth Amendment evaporates.

Interestingly, the Smith case also delves pretty deeply into another of the DOJ’s argument (again, one that persists today) that the warrantless wiretaps were legal because *everyone else did it too.* It makes for very interesting reading and attaches prior Presidential directives on warrantless wiretapping.

Beyond dealing with the Mitchell Doctrine Judge Ferguson had the insight and foresight to identify the problems presented by the inability of the courts to punish illegal Executive action other than by the Exclusionary Rule and also by the fact that under the DOJ’s, there was nothing that required the President to delegate this warrantless wiretap authority to the Attorney General. Rather than a delegation to the highest law enforcement officer of the nation who was required to specifically designate each person for surveillance, Judge Ferguson worried that under the DOJ’s argument the President could, instead, delegate such warrantless wiretap power to anyone and they could target without particularity. Judge Ferguson didn’t specifically mention night supervisors at the NSA or a massive program where the Attorney General turns the NSA loose to allow massive interceptions at the options of low level NSA operatives – interceptions without individual authorizations and without even an ability for the Attorney General to track, in filings to a secret court, who has been illegally surveilled. But he knew what men do with no oversight and no checks – he knew who Haydens were and what they would do.

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Unconstitutional Surveillance & United States v. U.S. District Court: Who The Winner Is May Be A Secret – Part 1

[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. What follows today is Part I. – Mary]

It was a time of war. America had been attacked in the Gulf of Tonkin. The National Security Agency (NSA) and our military had reassured us this was true. Our national security apparatus, Congress and press had joined behind the office of the President to lead us into a series of forays (Vietnam, Laos, Cambodia) that would leave tens of thousands of American soldiers dead and many times that wounded physically or mentally, while at the same time decimating over three million Vietnamese and over a 1.5 million Laotians and Cambodians.

At home, we were working our way through the civil rights movement, dealing with the cold war and threats of Russian nuclear weapons and witnessing anti-war protests that left students dead and buildings bombed. Algeria was hosting U.S. fugitives from justice, Eldridge Cleaver and Timothy Leary, while Cuban connections were alleged to be behind much of the organized anti-war movement.

Court martial proceedings had begun for the My Lai killings with polls showing most of America objected to the trial. President Nixon would later pardon Lt. Calley for his role. A trial had also, briefly, seemed to be in the works for the “Green Beret Affair,” the killing of Thai Khac Chuyen by Green Berets running an intelligence program called Project GAMMA. The investigation began after one of the soldiers assigned to the Project became convinced that he was also being scheduled for termination. Charges in the Green Beret Affair would be dropped after the CIA refused to make personnel available, claiming national security privileges.

Against this backdrop, Nixon and his campaign manager – attorney general, John Mitchell (the only (more…)