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The President and his Administration have seriously lost their way.  They have now officially normalized unconstitutional policy by any reasonable reading of the document.  But more importantly, in this case, the key office holders responsible for executing the law have subverted it, based on their own standards.

5. Does the Constitution permit a president to detain US citizens without charges as unlawful enemy combatants?

No. I reject the Bush Administration's claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.

Therefore, based on the authority asserted in the 16-page confidential Justice Department memo released yesterday by NBC news, the President has signed off on killing the very people he explicitly stated that it would be unconstitutional to simply detain.

If that is not the height of hypocrisy, I don't know what is.

Not only does he reject detainment without due process, but he had strong views on the extent to with the President can exert executive authority.

I also reject the view, suggested in memoranda by the Department of Justice, that the President may do whatever he deems necessary to protect national security, and that he may torture people in defiance of congressional enactments. In my view, torture is unconstitutional, and certain enhanced interrogation techniques like “waterboarding” clearly constitute torture. And as noted, I reject the use of signing statements to make extreme and implausible claims of presidential authority.
He views torture as unconstitutional, but he views assassination without indictment or charges as absolutely constitutional and an appropriate use of executive power.

That is a difficult circle to square.

But it is not only the President.  The Attorney General of the United States has also delegitimized himself through his actions.

In 2008, Eric Holder spoke to the American Constitution Society.  In that speech, he appeared to be much more comfortable with the concept that constitutional rights are not simply guidance that can be ignored by the executive branch at will.

We have, quite frankly, lost our way with regard to this commitment to the Constitution and to the rule of law. The rule of law is not, as some have seen it, an obstacle to be overcome. It is the very foundations of our nation.  


This disrespect for the rule of law is not only wrong, it is destructive in our struggle against terrorism,

That disregard for the rule of law was based on the following transgressions:
"I never thought I would see the day when a Justice Department would claim that only the most extreme infliction of pain and physical abuse constitutes torture and that acts that are merely cruel, inhuman and degrading are consistent with United States law and policy, that the Supreme Court would have to order the president of the United States to treat detainees in accordance with the Geneva Convention, never thought that I would see that a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens.
Can anyone reasonable person legitimately claim that any of these is more significant than the ability to kill American citizens via fiat, without due process and no imminent threat?  I challenge anyone to make that assertion without twisting themselves into knots.

The full speech, which is chilling in retrospect, demonstrates how far off the reservation and down the slippery slope this Administration has moved after 4 years in office, and the lengths at which they have decided to go to protect prior Administrations and at this point, themselves from scrutiny or future prosecution.

But more than anything that the President or Eric Holder have said over the past six years, my biggest disappointment is the virtual silence of so-called liberals, progressives, and civil libertarians over the two day.  I have no doubt, the current rec-list would be filled, yes exclusively filled, with diaries calling for hearings, if not impeachment on these practices if they were exposed during the Bush Administration.  But yet, if unconstitutional actions are taken by an Administration that many members of these groups support, crickets.  

That is beyond sad.  It is the type of partisan lack of principle that ultimately leads to the undermining of just and civil societies.  

Let me be crystal clear, Silence is Complicity.

I do not support in any manner this unconstitutional policy.  It should be investigated and put an end to.  Period.  We are supposed to be the world's guide to justice, not injustice.

I voted for the President, but that by no means should be assumed to mean I support this policy, which is not differentiated between the two parties.  I did not hear an alternative articulated.  I also believe the President's Supreme Court appointees would be more likely to decide against this policy should it come before them.

That being said, I believe impeachment would be justified for anyone that was part of signing off on this, including the President, if action is not taken to end this destructive policy.  

To be clear, justification is not synonymous with calling for impeachment, which is a political action. It is a simple statement that this is the type of action is the exact type of policy that justifies congressional oversight, inquiry, and if not repealed, ultimately impeachment should the Congress deem appropriate.   I would hope the policy would be renounced and repealed before it came to that, but I would be the ultimate hypocrite if I didn't hold this administration to the same standard as I held the Bush Administration.  

That is a difficult statement to make.  I am not interested in handing our government over to people who possibly would be even worse and take even more aggressive action against our rights. I am frankly not even sure how I would come down if we reached that point (which we won't because Republicans support this policy more than Democrats). But subverting the Constitution should never be taken lightly.  We must hold our political leaders accountable.  If not, where does the policy end?   What would stop the next Administration from moving this policy to American soil?  The answer is nothing.

We have headed down this path before, under the Hoover FBI.  And lots of bad things happened before the public finally decided their liberties where as important as their security.  But that was before the "war on terror".  I am concerned that we will not be able to "unring" the bell, if the current silence by those who care about the rule of law, on any side of the partisan divide remains silent.

Put simply, I subscribe to the following policy prescription:

“We owe the American people a reckoning. It is our responsibility as citizens to preserve and protect our constitution… Let me be clear: I firmly believe that there is evil in the world, and that we still face grave dangers to our security. But our ability to lead the world in combatting these dangers depends not only on the strength of our military leadership but our moral leadership as well. … To recapture it, we can no longer allow ourselves to be ruled by fear. We must evaluate our policies and our practices in the harsh light of day and steel ourselves to face the world’s dangers in accord with the rule of law.”
The man who made that statement:  Eric Holder.
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Comment Preferences

  •  Tip Jar (8+ / 0-)

    "Small Businesses Don't Build Levees" - Melissa Harris Perry

    by justmy2 on Wed Feb 06, 2013 at 08:07:06 AM PST

  •  Remember Normandy... (4+ / 0-)

    When the FBI stormed the beaches to serve arrest warrants for the Nazis hiding there...

    At least seven Americans reached officer rank in the Waffen SS.  If met on the battlefield, there were no standing orders for American GIs to only shoot the German-born soldiers.  

    All Obama did was give an order that Awlaki gets no preferential treatment over any other senior AQAP leader we wouldn't hesitate to neutralize if given the opportunity.

    We're talking about armed men on foreign battlefields.  Don't want to get killed by the US? Then put down the gun and stop hanging out with the terrorists who bombed the USS Cole.

    Follow Me on Twitter!!/ZeddRebel

    by TarantinoDork on Wed Feb 06, 2013 at 08:27:04 AM PST

    •  We are not talking about armed men (8+ / 0-)

      on a battlefield.

      We are talking about teenagers that have never been determined to have anything to do with terrorists.  Without a gun, much less a cell phone.

      I find it shocking, that anyone can say because you were seen with a terrorists, you deserve to be killed.

      By that standard, former military members that were seen with Timothy McVeigh would be appropriately killed, even if it was simply because they knew him from the military.  A teenager walking down the street in the 60's seen near a black panther (called the single greatest internal security threat by J Edgar Hoover), could be killed based on your world view.

      The lack of respect for the constitution shocks me, but unfortunately your point of view is not an abnormality.

      A battlefield does not encompass the entire globe.  Nice try, but that concept does not stand up to any level of scrutiny.

      The primary theory embraced by the Bush administration to justify its War on Terror policies was that the "battlefield" is no longer confined to identifiable geographical areas, but instead, the entire globe is now one big, unlimited "battlefield". That theory is both radical and dangerous because a president's powers are basically omnipotent on a "battlefield". There, state power is shielded from law, from courts, from constitutional guarantees, from all forms of accountability: anyone on a battlefield can be killed or imprisoned without charges. Thus, to posit the world as a battlefield is, by definition, to create an imperial, omnipotent presidency. That is the radical theory that unleashed all the rest of the controversial and lawless Bush/Cheney policies.

      This "world-is-a-battlefield" theory was once highly controversial among Democrats. John Kerry famously denounced it when running for president,
      arguing instead that the effort against terrorism is "primarily an intelligence and law enforcement operation that requires cooperation around the world".

      But this global-war theory is exactly what lies at heart of the Obama approach to Terrorism generally and this memo specifically. It is impossible to defend Obama's assassination powers without embracing it (which is why key Obama officials have consistently done so). That's because these assassinations are taking place in countries far from any war zone, such as Yemen and Somalia. You can't defend the application of "war powers" in these countries without embracing the once-very-controversial Bush/Cheney view that the whole is now a "battlefield" and the president's war powers thus exist without geographic limits.

      Funny how I didn't hear this argument supported by Democrats until the Executive was on their side.  Which is the entire point of my diary.

      Thanks for commenting.

      "Small Businesses Don't Build Levees" - Melissa Harris Perry

      by justmy2 on Wed Feb 06, 2013 at 08:38:13 AM PST

      [ Parent ]

      •  Under the laws of war, we can kill al-Qaeda (2+ / 0-)
        Recommended by:
        NedSparks, VClib

        anywhere when capture is impossible as long as there's a hot battlefield somewhere.  

        The constitution recognizes the laws of war, so there's no "disrespect" to the Constitution in abiding by the law of war.

      •  Anwar Awlaki was an Al Qaeda leader (1+ / 0-)
        Recommended by:
        johnny wurster

        Arrested Al Qaeda suspects (given their full rights under the law) have confessed to his senior position within AQ.  Umar Farouk Abdulmutallab confessed that Awlaki was the Al Qaeda leader who provided him with the bomb for the expressed purpose of blowing up 300 people over Detroit.

        He repeatedly put out explicit death threats.  Both against Americans generally and individuals specifically.

        He was shown in official Al Qaeda propaganda videos wielding an AK-47.

        When he was killed, he was riding in a car with Samir Khan, writer and publisher of AQAP's "Inspire" magazine which at one point called on American Muslims to conduct mass shootings in public places like restaurants.

        He was, plain as day, an enemy of the United States, committed to waging war against us.  He was not hiding in Berlin or Johannesburg or Amman or some place where there was the opportunity to arrest him.  He was hiding in a wartorn country with no extradition treaty, surrounded by armed Al Qaeda bodyguards, far outside the reach of American law enforcement.  And he was using his safe haven to actively attack Americans at home and abroad.

        Yes, in this rare circumstance, I have no problem with the government's judgment that the best option with the least risk to both American forces and Yemeni civilians was to fire on his vehicle as he was on a lonely road away from populated areas.

        If you have a better alternative, I'm all ears.

        Follow Me on Twitter!!/ZeddRebel

        by TarantinoDork on Wed Feb 06, 2013 at 09:39:43 AM PST

        [ Parent ]

  •  I've always read Obama as if he were speaking (2+ / 0-)
    Recommended by:
    justmy2, VClib

    in his capacity as a lawyer, which means reading him very carefully and with an eye toward very fine-grained use of language.  I think that pays off here: note the specifics of what he says!  He doesn't say the President can't detain US citizens w/o charge; he says that the President doesn't have plenary authority to detain.  What's the difference?  The difference turns on the source of the detention power.  The source of plenary power is Article II power: the claim that the President has plenary power is tantamount to the claim that the President has inherent constitutional power to detain.  There is another source of the detention power, though, that arises out of the AUMF.

    This difference came to light in Hamdi.  Here's O'Connor:

    The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government’s alternative position, that Congress has in fact authorized Hamdi’s detention, through the AUMF.
    So I read Obama as saying the Constitution doesn't permit him to detain in the absence of enabling legislation by Congress.

    I'm not defending Obama here or his position; my point is entirely that people should read his statements very, very critically and adjust expectations (downward!) accordingly.  

    •  BTW, all of this was occurring in the context (2+ / 0-)
      Recommended by:
      tapu dali, VClib

      of separation of powers debates.  My objection to Bush was always that he acted in defiance of Congress, and I thought that was impeachable.  A lot of people are disappointed in Obama for his record on civil liberties, but from where I sit he has acceded to Congress.  He may be striking US citizens, but he's doing so in accordance with Congressional authorization, and not in violation of Congressional prohibition.

      So to this:

      an anyone reasonable person legitimately claim that any of these is more significant than the ability to kill American citizens via fiat, without due process and no imminent threat?
      The answer, for those of us concerned primarily about the structural separation of powers, is that Obama is worlds better than Bush.
      •  How can Congressional authorization (1+ / 0-)
        Recommended by:

        override the Constitution?

        No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
        Granted the President can do whatever he/she wants until another branch takes action.  But I don't think that means the power is actually legitimate.

        "Small Businesses Don't Build Levees" - Melissa Harris Perry

        by justmy2 on Wed Feb 06, 2013 at 08:43:48 AM PST

        [ Parent ]

    •  A very good point and thanks for adding it. (2+ / 0-)
      Recommended by:
      johnny wurster, 3goldens

      But do you believe the AUMF serves as said legislation?  Are we now at the point that people are arguing the AUMF overrrides laws against assassination of US citizens?

      If so, we are in deep doo doo.

      "Small Businesses Don't Build Levees" - Melissa Harris Perry

      by justmy2 on Wed Feb 06, 2013 at 08:40:34 AM PST

      [ Parent ]

  •  Congress authorized (ordered) the use of the (1+ / 0-)
    Recommended by:

    military's force to counter terrorists. However, they also ordered that they don't want the troops directly involved. So, there's little choice but to go with killing by remote control.
    Presidents are loathe to admit that they are ham-strung by Congress, but that's what it boils down to.
    All the Administration can do is wash the dirty linen in public and hope the public reacts.
    Tell Congress to rescind the AUMF. Should have been done long ago.

    We organize governments to deliver services and prevent abuse.

    by hannah on Wed Feb 06, 2013 at 09:07:25 AM PST

  •  Democrats have always found the Republican idea (0+ / 0-)

    of American exceptionalism to be a bit strange. The notion that Americans are better than other people, as people, strikes most Democrats as odd and unnatural.

    Now in terms of the prospect of Americans involved in acts of violence against their homeland and other Americans. Some Democrats are, in effect, raising the specter of American exceptionalism.

    If Osama bin Laden, as a member of al Qaeda, should be stopped by any means necessary due to his declared war and his commitment to inflict violence upon the United States and its people, why shouldn't a US citizen, who is also a member (especially a leading member) of al Qaeda, and one who is also engaged in the same declared war against his homeland, be stopped in the prosecution of such a war?

    Well, the argument you hear is that the constitution forbids it. It is doubtful that the framers of the constitution considered al Qaeda and other terrorists engaged in asymmetric warfare when crafting their document. Nevertheless, some of the same individuals who use this argument are only too quick to second guess the Second Amendment in terms of the right to bear an AK-47....

    Hmmm...certainly smells like a delicious serving of American exceptionalism to me....

    •  Pretty sure framers were aware of asymmetric (3+ / 0-)
      Recommended by:
      shaharazade, 3goldens, pot

      Tactics..they kind of needed the to actually start our country.

      And the memo is not limited to "leaders" of Al Qaeda.  Not that this distinction matters constitutionally.   Legally, what differentiates a member of Al Qaeda vs the weather underground or black panthers under the Hoover FBI.  Same assertions of danger were made AND on domestic soil.  Would you have been for assassinating members of those groups, or their children or teenagers seen with them? If not, why not?

      "Small Businesses Don't Build Levees" - Melissa Harris Perry

      by justmy2 on Wed Feb 06, 2013 at 09:29:52 AM PST

      [ Parent ]

      •  If members of a group that has declared war (0+ / 0-)

        against the united states and its people (regardless of who these people happen to be), and have performed acts of violence on thousands of innocents in carrying out their agenda, were difficult to capture or physically apprehended in order to be brought to prosecution, I would certainly be for the US government stopping them by any means necessary. This is not a difficult proposition for me.

        The Black Panthers with their struggle (albeit a militant one) for ethnic minorities and working class emancipation and the achieving of economic, social, and political equality across gender and color lines, are hardly in the same league as al Qaeda, who have blown up hotels and heavily populated centers across the world for the purpose of inflicting as much damage and indiscriminately killing as many people as possible.

        In terms of asymmetric war, the Revolutionary war had some asymmetric tactics, as most wars do, but the war that pitted American soldiers against British soldiers and the Continental Navy and its allied French Navy against the British Navy, was more in keeping with our understanding of usual warfare between nations than what is being fought today between the United States and al Qaeda....

        •  It isn't about what you or I think (0+ / 0-)

          it is about what the executive branch declares...

          Here is how the executive classified the Black Panthers.

          Federal Bureau of Investigation Director J. Edgar Hoover called the party “the greatest threat to the internal security of the country,”
          That sounds familiar, even close to what you have said.

          The weather underground actually literally terrorized government buildings.  Militias in Michigan have declared war on our government.

          These all fit the criteria you lay out.  The question again is would you support killing individuals associated to these groups, by as little as being in the same neighborhood.  The equivalent of what happened with a teenager that was killed as part of this program.

          If so, you position is clear and people can decide for themselves how to interpret your position.  If not, what is the difference.  Why do you give American citizens on US Soil more rights than those on foreign soil?

          Put another way, when the search for Timothy McVeigh was on, would you have supported the missile from a drone to kill him if there was no new attack imminent?  Or did he deserve his day in court, as horrific as his crime was.

          If you would, I would simply state that your position is vastly different than the intent, meaning, and power of the US Constitution, where we believe in the right to face ones accusers.  Regardless of how reckless or horrific the crime you are accused of was.

          9/11 was horrible and will be engrained in our memories for ever. But the fact that 19 psychotic and morally corrupt individuals were not stopped due to incompetence, is not a valid reason to trash the constitution and start from scratch.  We have been through worse as a country.  We also subverted the constitution in some of those cases.  For instance, after Pearl Harbor internment occurred.  The people were for it, like yourself, and the courts approved.

          But history judged it to be one of our countries lowest moments, when we let fear cloud our judgement.  I wous submit that we are at a similar crossing point.  The only difference is it is 12 years later and we are still letting 19 cowards drive us to do things we know are beyond the rule of law.  The only difference is some accept this out of fear, and some believe it is a slippery slope.  I vote that our country is strong enough, and the Constitution is powerful enough, to not have to throw basic rights of US citizens out the door in the name of security.

          "Small Businesses Don't Build Levees" - Melissa Harris Perry

          by justmy2 on Wed Feb 06, 2013 at 12:10:38 PM PST

          [ Parent ]

          •  I've stated that I would have no objections to (0+ / 0-)

            the US government stopping these individuals by any means necessary.

            Throughout my responses I think I have made myself clear by referring to the premise of a declared war. A state of war exists between the US and al Qaeda, and, in as much as members of al Qaeda are bent on destroying the US and its people, the US government and the President has the right to stop these enemy combatants by any means necessary.

            You asked my opinion of this situation in terms of other groups, and I gave you my opinion, as it relates to a declared war and the wanton indiscriminate killing of individuals.  I stated that I would be for the stopping of such individuals by any means necessary.

            In terms of internment of Japanese Americans following Pearl Harbor, these people certainly did not make speeches claiming to be enemy combatants or participated in activities designed to inflict violence upon the nation. The American al Qaeda leader, Anwar al-Awlaki, has done this. This is an inaccurate comparison to these wronged individuals.

            Your suggestion that the President or the US government have trashed the constitution in order to go after this individual who was is involved in an anti-US war, as a leading figure of al Qaeda, is I think without merit. Again, the President who is the Commander in Chief, especially during a state of war, where thousands have been killed by this very group has to take whatever defensive steps necessary to protect the nation and its people.


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