Secret Laws II: It’s just as bad when Obama does it

Perversely, I wish that the War on Terror would give us a poster child, some cute and innocent victim of government over-reach whose picture we could put on placards and wave as we march through the streets. But for nearly 12 years, under both Bush and Obama, the government has been either too smart or too lucky to provide us with one.

Bad posters. Jose Padilla was an American citizen arrested at O’Hare Airport. Before he was charged with any crime, he spent more than three years in solitary confinement, including sensory deprivation and sleep deprivation. Quite likely he had been driven insane by the time he faced trial. But he was a brown-skinned Chicago street thug who, even if he never actually did any acts of terror (and may never have done anything), was a big talker. And they did eventually manage to convict him on a vague conspiracy charge (after he was mentally unable to either defend himself or trust any lawyer), so he doesn’t generate a lot of public sympathy.

Maher Arar was a Canadian/Syrian dual citizen who didn’t officially enter the U.S. at all. We arrested him during a layover at JFK Airport, held him for two weeks, and then shipped him off to be tortured in Syria for nearly a year. Both Syria and Canada say he was innocent, and he was eventually released. Canada awarded him millions in damages, but the U.S. government so far has avoided avoided any legal repercussions by claiming that it can’t defend against Arar’s lawsuit without revealing state secrets. (The torture happened during the Bush years, but the Obama administration is continuing the state-secrets claim.) But Arar isn’t a good poster child either, because he looks foreign, isn’t an American citizen, and wants to forget his whole ordeal.

Anwar al-Awlaki was an American citizen who was targeted and killed by an American drone attack in 2011 in Yemen, a country where we are not officially at war. What label to put on his death — casualty, assassination, execution — is debatable. But it is not debatable that he was charged with nothing and never had a trial. He’s also a bad poster child, though, because he supported Al Qaeda and counseled people like the Fort Hood shooter. The government claims he planned terrorist attacks, but no evidence supporting that claim has ever been made public.

These cases show that something is deeply screwed up. But without a sympathetic face to put on a procedural abuse, it’s hard to get anybody excited. If the government could torture Jose Padilla or kill Anwar al-Awlaki without any legal process, it could do same to you or me. Since we refuse to identify with people like Padilla and Awlaki, though, we don’t feel personally threatened.

Martin Niemöller’s “First they came for …” is one of the most widely abused quotes in current American political discourse, but this is the setting where it makes sense: When you let the government violate the rights of people you don’t like or don’t care about, you lose the principle. Someday you may be unpopular too, and then how will you defend yourself?

Secret laws under Bush. One of the worst abuses of the Bush administration didn’t even produce bad poster children, because it was abstract: They used secret legal opinions to justify their other power grabs.

When it took office, the Obama administration seemed to be rejecting that course by releasing nine secret memos from the Office of Legal Counsel. The memos explained why it was legal for the President to violate treaties, wiretap without warrants, and do just about anything he thought national security required. Jack Balkin summed it up like this:

The President, because he is President, may do whatever he thinks is necessary, even in the domestic context, if he acts for military and national security reasons in his capacity as Commander in Chief.

To understand the power of these memos, you need understand the role of the OLC: It’s essentially the executive branch’s version of the Supreme Court. If you work for any department or agency of the federal government and you wonder whether something you’re doing is legal, you ask your office’s lawyers. If they kick the question upstairs, and then the upstairs lawyers kick it further upstairs, eventually it winds up at the Office of Legal Counsel in the Justice Department. Somebody at the OLC writes a memo, and that memo is then the official interpretation of the law for the whole federal government — at least until somebody sues and the judicial branch starts weighing in.

So if you as a government official believe that the policy you’re implementing is unconstitutional, that’s not for you to say. If the OLC has blessed it, they’re the experts.

That’s a fine system as long as the OLC does its job in good faith and is accountable for its mistakes. But the Bush OLC wrote opinions to justify whatever the administration wanted to do, regardless of the law or the Constitution; and it avoided accountability by keeping its most egregious memos secret, so that non-administration legal experts could not tell the public (or Congress) how absurd they were. I commented at the time:

You never need to classify the fact that 2+2=4. But if you want the government to operate under the assumption that 2+2=5, then you do have to classify it

There is a role for secrecy at the OLC, but only in so far as the facts of the situation are classified. So, for example, if the Pentagon wanted to know whether a proposed weapons system would violate a treaty, a memo answering that specific question might necessarily include classified facts about the system. But a purely abstract memo explaining how the OLC interprets the language of the treaty — there’s no excuse for classifying stuff like that.

In fact, this kind of secrecy violates the oldest, most basic principle of the rule of law: The law must be public. If, behind the scenes, you can interpret the law away or even reverse it completely, then we don’t have the rule of law.

Targeted killing. The hard questions of law happen when two constitutional principles conflict. For example: I have freedom of the press, but my right to publish can be limited by Congress’ power to establish copyrights. I have freedom of speech, but some speech is libel or treason or fraud or pornography. Questions about where the boundaries fall are why we need people on the Supreme Court rather than machines.

The Constitution gives lots of rights to American citizens accused of crimes. The Sixth Amendment says:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

And the Fourteenth says that this is not a narrow right:

nor shall any State deprive any person of life, liberty, or property, without due process of law

This clause has been interpreted as applying to the federal government as well as the states.

On the other hand, the Constitution also gives the government the power to make war. It doesn’t define war, but it’s hard to imagine any definition that wouldn’t include the power to kill people without trials. When an American citizen enters a battlefield wearing enemy colors — as many did during the Civil War — the government’s power to make war trumps the citizen’s right to a trial or any other kind of due process. That’s never been controversial.

But the War on Terror has fuzzed everything up. The enemy isn’t a country or government. Its soldiers don’t wear uniforms. The conflict often does not take the form of “battles” fought on “battlefields”. No one knows when the war might be over or what conditions could end it.

So the boundary between war-making powers and Sixth-Amendment rights is not so clear any more. If the government thinks you might be a terrorist in league with Al Qaeda, when can it kill you as if you were an enemy soldier on a battlefield, and when does it have to prove its case to a jury?

This ties in with a bunch of your other constitutional rights. Are you free to hang around with people the government thinks are terrorists or to communicate with them frequently? Can you work with them on projects that you believe are unrelated to terrorism? Can you put forward ideas that are not themselves treason, but are congenial to people who might be enemies?

And finally: What’s your protection against being killed by a rogue government official who just doesn’t like you? Can he invent a charge of terrorism against you, or exaggerate your real-but-harmless connections to terrorists?

As unsympathetic as he was in many ways, Anwar al-Awlaki exemplified all those issues. He wasn’t on a traditional battlefield when we blew up his car, and while he undoubtedly had some relationship to Al Qaeda, the government never had to back up its claims that he had an operational role in terrorism. Here’s what I wrote at the time of his death:

Al-Awlaki is dead because the President signed a piece of paper saying that he was a bad man. I suspect he probably was a bad man, so it’s hard to be all that broken up about his death. But in theory, the President (or some future president) could sign a piece of paper saying that I’m a bad man too. Wouldn’t it be nice to have some due process about that?

Secret laws under Obama. You know what the answer to that question is? It’s a secret. There’s an OLC memo describing when the president can order a hit on an American citizen, but it hasn’t been released to the public, or even to Congress. The House and Senate Intelligence Committees just got it, after asking for years. 

So that’s the state of transparency on this issue: The boundary between the government’s war-making power and the citizen’s right to trial is secret.

In a letter to CIA-Director nominee John Brennan, Senator Ron Wyden (D-Oregon) says:

I believe that every American has the right to know when the government believes it has the right to kill them. 

The Obama administration disagrees. Wyden has raised another question I hadn’t even considered: Does the government owe a citizen the right to surrender?

Think about it. The process that puts names onto the kill list is secret, so you might not know you’re on it until you se the drones circling. What if you want to turn yourself in? What if you think this is all a big mistake and you want to clear your name? If you’re not actually pointing a weapon at someone at the moment, aren’t you due that much process?

These are not questions about weapons systems or the identities of secret agents. They are abstract questions of law, that could and should be debated in public. If the administration has any reason for dodging that discussion — beyond simple embarrassment at the flimsiness of its justifications — it isn’t telling anybody.

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Comments

  • weeklysift  On February 11, 2013 at 11:43 am

    I should have included a link on the Wyden-surrender point: http://www.realclearpolitics.com/video/2013/02/08/ron_wyden_should_obama_let_americans_surrender_before_killing_them.html

  • Henry Case (@HenryCase1)  On February 11, 2013 at 12:14 pm

    You do realize that by bringing up the ‘first they came for me’ poem you’re comparing the US to the third reich: a vile libel on many levels. Its also silly because in terms of civil rights abuses and civil death toll the US in WWII was far worse than the war on terror. Unlike FDR Bush didn’t intern anyone and compared to the other states that made up the allies the US was pretty much benign of the bunch. Similarly in terms of civil liberties the post-911 era is nothing compared to the most celebrated chapters in US history which featured things like the Alien and Sedition acts and Lincoln’s suspension of habeas corpus. I have the utmost admiration for FDR I merely bring it up to cite how cringe inducing your comparison actually is, post-911 bush policies are no different from European laws in fact slate documented that Europe has worse wiretapping laws. So the cliched mention of ‘first they came for me’ only embarrasses you. there’s no comparison to be made between the two states its as libelous as the PRC’s comparison of Tibetans to Nazis.

    Al-Alwaki wasn’t just a guy with nasty connects, he was an al-qaeda member who could have turned himself in but did not and of course it wasn’t as if the US could have just grabbed him. Padillas’ case was ultimately transferred to the courts. Maher is a Canadian citizen and guilt lies with many parties but chiefly with his own government. The best way to evaluate a democracy is to compare it to other democracies. The UK during the northern Irish troubles carried out countless targeted of their own citizens who were suspected or real IRA terrorists (loughgall and so on) all in cases where they could have easily arrested them unlike Alwaki. They also practiced mass internment without trial. That was against a vicious enemy but one that pales in comparison to al-qaeda. Canada carried out targeted killings of Canadian citizens who belonged to the FLQ (a pathetic group in comparison to Al-qaeda) decades before 911. So the actions of two leading democracies is no different form or even worse than the war on terror.

    • weeklysift  On February 11, 2013 at 12:37 pm

      The post says exactly why and how the quote is appropriate. I stand by it.

  • liz  On February 11, 2013 at 4:16 pm

    Here are some poster children for you: http://slog.thestranger.com/slog/archives/2013/02/08/grand-jury-refusers-five-months-and-counting-plus-solitary-since-december Two young Americans have been in federal prison for 5 months now (a third was sent to join them in December 2012). They’ve not been charged with any crime. The context for locking them up (in solitary confinement since 12/12) is that they were suspected of being associated with vandalism that occurred in Seattle in May 2012 during the ‘May Day Riots’. It is firmly established that at least one of the non-accused was not even in Seattle at the time. They are political prisoners – American citizens being held without charges indefinitely for refusing to answer questions – in a grand jury hearing that was closed to the press and public – about the political beliefs of the people they (may or may not) know.

  • Alex  On February 15, 2013 at 3:06 pm

    I hadn’t thought about the right to surrender question either. That’s an interesting and important twist to the conversation.

    Another side of the issue that you hinted at but didn’t really get into here has to do with the sovereignty of other states. Al-Alwaki was killed in Yemen. Presumably American law enforcement has no jurisdiction in Yemen. The Yemenese government is pretty ineffective right now and unlikely to extradite Al-Alwaki if requested to do so. Assuming, for the sake of argument, that there is in fact a case to be made against Al-Alwaki, how does this situation effect the secrecy of the decisions being made? Especially since the chosen course of action involved what could arguably be considered an act of war (bombing another country) or at the very least a violation of another state’s sovereignty.

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