Obama Can Kill Americans on U.S. Soil Without Due Process?

by Wendy McElroy

On March 5th, a headline in the left-leaning Mother Jones declared, ?Obama Administration Says President Can Use Lethal Force Against Americans on US Soil.? A letter from Attorney General Eric Holder to Republican Senator Rand Paul was the cause. (A screenshot of the full letter is here.) Rand had written to John Brennan, the current nominee for Director of the CIA, to ask whether the president can kill American citizens through the drone strike program on US soil without due process. Brennan requested Holder to address legal aspects of the question, which Obama and his administration have hitherto refused to answer. Holder's March 4 letter may have broken the silence because Rand threatened to filibuster Brennan's nomination if there was no response. (Indeed, Rand was filibustering as I wrote this article.)

Conservatives and libertarians are enraged by Holder's letter; liberals offer a mixed reaction. An admin at the left-leaning Daily Kos site, for example, blasts Mother Jones for inaccuracy. Others claim the Presidential power is nothing new and Holder's comments are unexceptional. Teasing out the truth means deconstructing the letter.

DECONSTRUCTING HOLDER

This letter was written and vetted with meticulous care. Holder did not misstate his position. The letter's vague and non-responsive nature is deliberate and its few specifics are revealing.

Holder opens with an assurance: ?[T]he US government has not carried out drone strikes in the United States and has no intention of doing so. As a policy matter moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat.? [All words in bold are emphasis added]

Obama did not even disclose the existence of a drone program on American soil until his hand was forced; the memos upon which the program's legal authority is based remain secret. This non-transparency makes it impossible to assess Obama's intentions, and reduces Holder's position to ?trust us.? The words ?as a policy matter? are significant because the use of military force instead of law enforcement is dismissed strictly as policy, not on grounds of law or the Constitution. Policies change constantly and often without notice. Moreover, given the extreme militarization of US law enforcement, complete with police drones, it is strange to reassure Americans that they would be killed by law enforcement and not the military. The distinction does obviate some legal questions, however. For example, it bypasses any lingering shred of the Posse Comitatus Act, which limits the power of a President to use the federal military to enforce law.

Holder continues. The administration has ?a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individuals have been arrested and convicted of terrorism-related offenses in our federal courts.? Again, this is a policy statement. Moreover, various federal agencies, including the Department of Homeland Security, have identified broad categories of law-abiding Americans as potential terrorists. Gun advocates, military veterans and strict Constitutionalists place consistently high on that list. By broadening the focus to include America's ?interests abroad,? Holder also signals that the Americans targeted need not be violent but merely a threat to US interests. It would be difficult to be more vague.

Holder now approaches the meat of the letter. ?The question you [Rand Paul] have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no president will ever have to confront.? The statement is entirely incorrect. On February 20th, Paul asked whether Obama had ?the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil and without trial.? This is a specific, real world question; it asks an Attorney General to comment on a point of federal law, which he would be or has been instrumental in forging. Holder's dismissal of Rand's question as theoretical, however, allows him to rephrase it in a form he wishes to address.

Holder's non-answer? ?It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.? The rephrasing allows Holder to avoid the key issue of due process. Unfortunately, few people deny the authority of a President to kill violent Americans who threaten national security. But they balk at his signing secret orders to kill Americans without arrest or a trial. Due process is being reduced to Obama's signature on a piece of paper that will never be seen.

Nevertheless, Holder is at least and at last rendering a legal opinion. Yes, under ?extraordinary circumstances,? it is legal ?under the Constitution and applicable laws...for the President to authorize the military to use lethal force? on American soil.

It is impossible to know what constitutes ?extraordinary circumstances.? America has been in a state of war and militarization for almost 12 years since 9/11. It could refer to circumstances law enforcement cannot handle and, so, the military becomes necessary. In reality, ?extraordinary? will mean whatever the administration wishes. The national emergency could be nothing more than a grassroots refusal of Americans to voluntarily surrender guns. At that point, Obama could bypass both Congress and the Constitution by invoking the War Powers Act and declare martial law.

It is also not possible to decipher which ?applicable laws? are referenced. Perhaps Holder is appealing to ?War on Terror? laws such as the Authorization for Use of Military Force. The latter is a joint resolution passed by Congress in 2001 to authorize the President (then Bush) to use "necessary and appropriate force" against anyone who "planned, authorized, committed or aided" those responsible for 9/11. Indeed, the words used by Holder -- ?necessary and appropriate? ? echo the wording of the AUMF. It is equally unclear which part of the Constitution is referenced. Certainly, it is not the Bill of Rights. This means that neither Congress nor the public will know the circumstances and legal authority under which President believes it is appropriate to kill Americans on US soil.

The two specific examples of ?extraordinary circumstances? only confuse the issue further. He states, ?the president could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances like a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.?

The examples are the bombing or Pearl Harbor and 9/11. They are bizarre. For one thing, neither incident was perpetrated by Americans. Moreover, Holder endorses the Presidential execution of Americans after a crisis has occurred and not to prevent one. This differs sharply from the administration's justification for torture; namely, that information extracted in a ?timely manner? may prevent the loss of American lives.

The ?timely manner? aspect becomes all the more bizarre in light of Holder's concluding sentence: ?Were such an emergency to arise, I would examine the particular facts and circumstances before advising the president of the scope of his authority.? Pearl Harbor occurred literally out of the blue in the early morning hours; 9/11 was equally unexpected and swift. Does anyone believe Holder thinks there would be time to ?examine the particular facts and circumstances? of a surprise attack that hits like a lightning bolt? Does anyone believe Holder does not know what the administration's response would be down to the color of Obama's underwear?

CONCLUSION

The Obama administration is profoundly secretive and dishonest. Holder's letter is an exercise in obfuscation which, nevertheless, does assert the President's authority to kill Americans on US soil under undefined circumstances.

Certain other circumstances have been defined, however. Obama has already asserted the unprecedented power to kill Americans without due process when they are on foreign soil. Anwar al-Aulaqi was an American by birth and upbringing. He was executed by a drone attack in Yemen on September 30th, 2011. The grounds: suspicion of joining al Qaeda. No evidence of guilt has been presented because Obama has not released it.

It is also clear that the Obama administration is unwilling to explain the details or scope of the President's authority to kill Americans on US soil. At some point, when people consistently and persistently refuse to answer a question with ?no,? a reasonable person realizes the answer is ?yes.?

On March 5th, civil libertarian Glenn Greenwald summed up the situation. ?There is a theoretical framework being built.? It ?posits that the US Government has unlimited power, when it comes to any kind of threats it perceives, to take whatever action against them that it wants without any constraints or limitations of any kind.
_
Wendy McElroy is a frequent Dollar Vigilante contributor and renowned individualist anarchist and individualist feminist. She was a co-founder along with Carl Watner and George H. Smith of The Voluntaryist in 1982, and is the author/editor of twelve books, the latest of which is "The Art of Being Free". Follow her work at http://www.wendymcelroy.com.

View the original article here

SOPA Supporters Urge White House To Use Secretive TPP Process To Insert Draconian New IP Laws

by Mike Masnick

We've been warning for a while about the TPP negotiations, and how the big interests who pushed SOPA were making a concerted effort to use the (very questionable and extremely secretive) nature of international trade negotiations to sneak through many of the things they wanted in SOPA, without any scrutiny. Make no mistake: while the public has no access to, or information about, what the federal government is negotiating, the big special interests are well informed. As pressure has been mounting against TPP, it appears that the US Chamber of Commerce has "brought the band back together," putting outa letter to the Obama administration explaining why draconian IP rules must be included in the TPP. The letter is signed by a who's who of SOPA supporters, including (of course) the Chamber of Commerce, the MPAA, the RIAA, A2IM, PhRMA, AAP, BSA, ESA and more. Basically, it's a bunch of also ran industry trade groups whining to the feds that they can't innovate anymore and they need economically damaging mercantilist-style protectionism.

For the TPP to achieve that vision, it is essential that the final TPP agreement incorporate comprehensive and high-standards for the protection and enforcement of intellectual property (IP) rights ? including patents, trademarks, copyrights and trade secrets. And that outcome can only be achieved through continued and heightened U.S. leadership. By contrast, any attempts to weaken IP rights or to exclude any sector from protection must be strongly rejected and would be inconsistent with overall U.S. Government policy and U.S. economic and trade interests.

Almost nothing in that paragraph is accurate (or honest). The TPP can be a perfectly good trade agreement without touching on IP issues. It's just that, in the past few years, industry lobbyists have realized that sneaking IP law expansion through international obligations is a good way (they thought) to keep them under the radar, and to get ridiculous rules pushed through without having to go through the standard legislative efforts. In fact, deals like these often require changes to the laws after-the-fact, which is exactly what the industry wants. Because then, rather than arguing for a law because they know it will hurt innovative upstarts, they can just stand around pouty-faced, talking about how we have to "respect our international obligations."

Furthermore, there is tremendous evidence at this point that IP laws are way too broad and too draconian, and that's causing significant hindrance to innovation. Claiming that no weakening of IP laws can be allowed is a ridiculous and unsupportable maximalist agenda, designed not to help the US, but to lock in entrenched players at the expense of disruptive innovators.

We commend your Administration for recognizing the key role played by innovative and creative industries in driving economic growth, jobs and competitiveness. As recently highlighted in the March 2012 U.S. government report ? Intellectual Property and the U.S. Economy: Industries in Focus ? U.S. IP intensive industries support more than one in every four jobs, over one-third of GDP, and approximately 60 percent of exports. The protection and effective enforcement of IP rights are therefore of critical importance to the economic growth and prosperity not only of the United States but also of its eight TPP-negotiating partners.

This is a load of hogwash. The "report" used the US Chamber of Commerce's own totally discredited methodology to inflate numbers to ridiculous levels. Furthermore, the US CoC's interpretation that this report shows that enforcement is "critical" is, once again, complete hogwash. It assumes -- without any proof whatsoever -- that these IP intensive industries exist because of strong IP laws.

What the letter conveniently ignores is that some of the largest players -- and the fastest growing ones -- included in the list of "IP intensive" industries were the tech companies who fought against SOPA and who have complained about enforcement and protection levels being way, way too high. To use those industry's own growth as proof of the need for greater enforcement isn't just disingenuous, it's downright obnoxious.

As you and your Administration have repeatedly recognized, strong IP protections have been an essential element in fostering the explosive growth in new and more efficient technologies, increased productivity, life-saving medicines and other health technologies, as well as a wide variety of creative and educational works. As a result, high-standard IP protections are a key driver of economic growth in the United States and overseas and are linked to the creation and retention of jobs in industries as diverse as consumer and industrial products, educational products and entertainment, scientific products and equipment and information and communications technology.

Ah, flattery. And yet, there is no evidence to support the statement above. In fact, research has shown that IP laws do not, in fact, lead to explosive growth in technologies. Rather, the laws tend to lag growth -- showing that massive growth often happens in the absence of such laws or with weaker laws. The laws are then put in place to protect the leaders against new upstarts. This is exactly what the signatories of the letter are trying to do.

While the benefits of strong IP protections and enforcement are widely supported throughout the United States and safeguarded in our Constitution and laws, such protections are at serious risk in the ongoing TPP negotiations. Some seek to enshrine low standards of protection, with limited enforcement, in the final TPP agreement, arguing that U.S. proposals would be harmful and could undermine other interests.

Actually, some seek to push back on the ridiculous excesses of those who signed this letter, in order to look out for what actually benefits the public the most. Shocker, I know, but these laws are supposed to (we're told) benefit the public. Of course, the letter attacks such claims as well:

The strong IP protections proposed by the U.S. government in the TPP negotiations do not represent, as some suggest, a threat to public health, the development and expansion of the Internet or rights of freedom of speech, but rather a much-needed response to increasingly sophisticated threats to IP protection throughout the world. More, not less, rigorous IP rules are needed to thwart the explosion in IP infringement, including of pirated, counterfeit and unlawful copycat products throughout all sectors of the economy, and trade-secret theft.

Notice how these groups don't even hide the fact that they know what IP protections are being proposed by the US government in the TPP negotiations. That's because they're heavily involved in the process. You know who's not? The public. When special interests -- especially ones with a history of trampling all over the public interest -- get to help write the laws and the rules, while the public is kept in the dark, it's a pretty safe bet to expect that the public will get trampled again. Sorry, special interests, but saying you won't trample the public interest, while not letting the public into the debate, isn't that convincing.

Furthermore, we're already seeing such laws harm public health, hurt internet development, and be used to attack free speech. We can provide tons of examples. So claiming that it won't do more of that is a laughably ridiculous assertion.

What's also true is that never has expanding IP laws and enforcement been successful in "thwarting" infringement. It may work briefly, but within months, people find other ways to infringe. The only thing that works is encouraging real innovation in the field -- enabling startups to enter the market and do cool new things. Let them compete with "piracy" and innovative companies can and do succeed (though the industry then wants to shut them down or squeeze more money out of them). Yet the TPP isn't about enabling disruptive innovators. It's about giving slow, lumbering legacy companies who don't want to adapt the ability to kill innovation.

In their essence, the arguments against strong IP protections are largely based on the misguided assumption that strong IP protections advance only the interests of IP exporting countries and disadvantage countries with less well developed IP-dependent industries. In fact, the adoption of strong IP protections by all countries in the TPP and more widely promotes strong benefits for all, whether or not the country has developed its own major IP-based industries

Citation needed. Seriously. Because tons upon tons of studies have shown exactly the opposite.

Developed and developing countries that have adopted stronger IP protections have proven better able to develop their own technological, science, creative and other innovative and IP-dependent industries, advancing their own economic growth, productivity, exports, innovation and the interests of their workers and consumers alike.

This is lying by use of correlation, rather than causation. The real relationship is the opposite of what they're saying. The innovation almost always precedes the increase in IP protections, which then grant the leaders the ability to stifle upstarts and innovation they don't control. While it's true that developed nations have stronger IP laws, that's more about crony capitalism happening after the fact, rather than stricter laws being the cause of the innovation and growth.

The letter, in typical fashion, is a complete joke. The claims don't stand up to any sort of scrutiny. The authors must know this, but in a political world, they can get away with being extremely disingenuous.

Latest Big Brother/Orwellian
- US "Six Strikes" Anti-Piracy Scheme Delayed
- Economist: Copyright Is An Antiquated Relic That Has No Place In The Digital Age
- Talking Surveillance Cameras Coming to U.S. Streets
- DHS Considers Collecting DNA From Kids; DEA and US Marshals Already Do
- Sheriff Secretly Tracks Critic With GPS Tracker On Car
- Geraldo Rivera: I Was "Raped" By The TSA
- If You Think The Cost Of 'Piracy' Is High, What About The Cost Of Enforcement?
- TSA Harasses Diabetic Teen Girl With Insulin Pump, Forces Her Through Naked Body Scanner & Grope Down, Breaks Her $10,000 Pump

This site contains copyrighted material the use of which in some cases has not been specifically authorized by the copyright owner. Such material is made available for the purposes of news reporting, education, research, comment, and criticism, which constitutes a 'fair use' of such copyrighted material in accordance with Title 17 U.S.C. Section 107. If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner. It is our policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (found at the U.S. Copyright Office) and other applicable intellectual property laws. It is our policy to remove material from public view that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our members or users.
About Us - Disclaimer - Privacy Policy
"Men occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing ever happened..." - Winston Churchill

View the original article here