Drone Wars, DOJ Death Squads and the White Paper
by: Jeanine Molloff
CIA Director candidate John Brennan all but cries crocodile tears for the ‘agony’ he feels, every time a presidential ordered ‘targeted’ drone murder is decided. In fact, Brennan claims to go through such deep agony over these extra-judicial assassinations that he felt the need to share this information with Congress during his confirmation hearing. (Source : readersupportednews.org/opinion2/277-75/15942-brennans-obscene-testimony) Brennan further defended the extreme secrecy of the drone assassination program and the president’s official ‘kill list,’ using ‘national security’ as the excuse that keeps on giving.
Aside from the fact that the ‘national security’ claim is the Obama administration’s ‘get out of jail free’ card for multiple crimes against humanity, (ie. political prosecution of dissidents including journalists (ie. Julian Assange), extroardinary rendition aka kidnapping, enhanced interrogation techniques aka torture and extra-judicial assassinations aka. the presidential weekly kill list); Brennan’s claim to ‘agonize’ over each week’s ‘kill’ is so obscene a lie– even Dick Cheney would blush. (Source : readersupportednews.org/opinion2/277-75/15942-brennans-obscene-testimony)
Brennan’s testimony– more ‘theatre of the absurd’– than factual testimony to a US Senate committee; was not the only argument reaching a level approaching lunacy. While John Brennan was making excuses for extra-judicial murders based on little more than presidential whim; DOJ attorneys have been busy stonewalling U.S. District Judge Colleen McMahon on the very same subject. In response to an ACLU FOIA (Freedom of Information Act) request for records documenting targeted drone killings and the criterion used to determine such extra-judicial murders; Judge McMahon ruled in favor of the Obama DOJ. It looked like Attorney General Holder and President Obama were off the hook–until a DOJ memo leaked to MSNBC outlining the formula for legalized presidential death squads.
The Leaked ‘White Paper’—US Citizens CAN Be Murdered by Drones…
Earlier this week a DOJ Memo, simply dubbed The ‘White Paper’, leaked to MSNBC much to the irritation of the Obama administration. The ‘White Paper’ was researched and written by DOJ attorneys, engineered explicitly to provide ‘legal cover’ for ANY President, ordering ‘secret targeted killings’– including when the target is a U.S. citizen. These ‘targeted murders’ are conducted with the president acting as judge, jury and executioner. Due process rights to an open trial with the right of cross-examination has now been reduced to a quaint joke by the ‘white paper.’ No president is ever required to provide proof that an actual crime was committed (other than the crimes of the presidential death squad itself). Realistically, this ‘white paper’ grants ‘secret political prosecutions’ and subsequent ‘death squads’–bureaucratic ‘legitimacy.’ Murder by presidential whim–is now ‘legal’ by secret courts. This policy DOES INCLUDE THE MURDER OF U.S. CITIZENS. In fact, the concluding paragraphs of this 16 page memo specifically covers the extra-judicial murder of U.S. CITIZENS. Here is the text:
…”In conclusion, it would be lawful for the United States to conduct a lethal operation outside the United States against a U.S. citizen who is a senior, operational leader of al-Qa’ida or an associated force of al-Qa’ida without violating the Constitution or the federal statutes discussed in this white paper under the following conditions:
(1.) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;
(2.) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and
(3.) the operation is conducted in a manner consistent with the four fundamental principles of the laws of war governing the use of force.
As stated earlier, this paper does not attempt to determine the minimum requirements necessary to render such an operation lawful, nor does it assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances. It concludes only that the stated conditions would be sufficient to make lawful a lethal operation in a foreign country directed against a U.S. citizen with the characteristics described above.”
(Source : http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf)
How the White Paper is a Mockery of Justice…
Notice the doublespeak in terms of how DOJ will not even attempt to …”determine the minimum requirements necessary to render such an operation lawful UNDER OTHER CIRCUMSTANCES than those covered in this ‘white paper.’ Isn’t the purpose of law to define the boundaries of acceptable behavior? How can such boundaries be observed if they are not clearly dilineated?
Judge McMahon publicly acknowledged that the targeted drone killings were occurring alongside internal discussions regarding the ‘legality’ of these extra-judicial murders. The judge did characterize those internal discussions as taking place …”in cryptic and imprecise ways.”
She further stated that…
…”More fulsome disclosure of the legal reasoning on which the Administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable ‘hot’ field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated…”
…”However this court is constrained by law, and under the law, I can only conclude that the government has not violated FOIA by refusing to turn over the documents, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The ALICE-IN-WONDERLAND nature of this pronouncement is not lost on me.”
Judge McMahon added…
….”I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules–a veritable Catch-22.” …”I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.” (Source : bigstory.ap.org/article/judge-us-can-keep-secrets-targeted-killings)
In other words, the judge admits that the questionable legality of a presidential kill list implemented minus any due process constraints, should be reviewed by a court of law in order to decide the legal status of such actions–but the court cannot order such a review. The reason the court cannot order such a review is caused by a lack of evidence. A FOIA request would require the president and DOJ to turn over such evidence, but due to the very executive orders written by the same president who would be investigated–the FOIA request does not have to be honored. If this were a casino in Vegas–it would be safe to assume–the game is rigged.
…The Law vs. Actual Justice…
While I understand Judge McMahon’s ‘Catch-22’ conundrum; I still feel that the good judge is skirting the issue–namely the illegitimate transformation of the ‘rule of law’ to the arbitrary and capricious ‘rule of men.’ Not since Bill Clinton debated the meaning of the word ‘is’, has such drivel been passed off as legitimate law. Between the Obama administration’s tortuous semantic shill game specifically engineered to usurp our democracy, and Judge McMahon’s judicial surrender to DOJ bullies–our legal system has devolved into an archaic ritual of insane oligarchy.
The defense of this war against our Bill of Rights, has been relegated to a non-specific ‘war on terror,’ and federal judges are crying that they can’t enforce the law beyond any procedural errors. Even if procedural errors are detected; the judges can’t enforce FOIA requests due to executive orders setting aside previous established federal law such as FOIA–due to ‘national security issues.’
With even more convoluted reasoning, the president and DOJ further stonewall legitimate court demands for proof of actual ‘national security issues’, by unilaterally proclaiming the information so secret and complex that the court would not be allowed to view the national security concerns in question. The ‘rule of law’ is mocked by a president who sets his office above the rule of law. Attorneys at the Department of Justice (DOJ) have been nullifying the ‘rule of law’ tracing back to MAGNA CARTA.
Sen. Wyden Challenges Secret Law…
Sen. Wyden pushed for an amendment to Patriot which would end this …”practice of secretly interpreting law,” in 2011 and warned against these shadow courts acting without transparency and accountability.
“It is impossible for Congress to hold an informed public debate on the Patriot Act when there is a significant gap between what most Americans believe the law says and what the government is using the law to do. In fact, I believe many members of Congress who have voted on this issue would be stunned to know how the Patriot Act is being interpreted and applied,” Wyden said. “Of course, intelligence agencies need to be able to conduct operations in secret, but even secret operations need to be conducted within the bounds of established, publicly understood law. Any time there is a gap between what the public thinks the law says and what the government secretly thinks the law says, I believe you have a serious problem.” (Source: www.wyden.senate.gov/news/press-releases/wyden-begins-effort-to-amend-patriot-act)
…The Solution–Restore the Bill of Rights…
Panicked reaction to 9/11 resulted in an entire host of ‘laws’ specifically written to strip us of our sacred human rights. The Bill of Rights represents the legal insurance that the most fundamental human rights are safeguarded. The right to due process in a court of law separates our system from the rule of dictatorial bullies. The right to demand evidence and to cross examine witnesses and police means the difference between a fair trial and the Star Chamber ‘courts’ of the Spanish Inquisition or the Salem witch trials. Stripped of these rights; we are reduced to chattel slaves. For a president to demand the revokation of these rights in the name of national security, begs the question–what are we trying to save? If we are relegated to fearful slaves threatened with targeted kidnapping, torture and death squads (with the president acting as judge, jury and executioner); for daring to question the government–how are we any different than the Third Reich? When a president proclaims himself to be above the rule of law–we no longer have a president–we have a would-be Ceasar. The excuse of ‘national security’ should never trump the Bill of Rights.
Sen. Wyden has the right idea–but his goal is still too anemic. The fact that this insane debate is taking place in 2013 (when it more closely resembles the Spanish Inquisition–torture included); only serves as testimony to the moral cowardice of the legal profession. When justice is sacrificed on the altar of procedural sequences–the entire system needs to be scrapped. Think of it like a long difficult game of poker against a master card shark–both rules and witnesses are necessary to insure a fair game. The law serves to guarantee transparency, fairness and clarity by making sure the average person understands the rules and the stakes of losing–otherwise it is little more than a rigged poker game with a dirty deck and an even dirtier dealer. Can you hear me now President Obama?