Homeland Security Watch

News and analysis of critical issues in homeland security

January 3, 2013

Due process: Collect, keep, and kill

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. (Clause 39, Magna Carta)

No person shall… be deprived of life, liberty, or property, without due process of law… (Fifth Amendment to the Constitution of the United States)

–+–

Recent months have seen one-time expediencies dressed-up as new principles to frame the relationship between citizen and State.  Three examples:

On the Friday after Christmas the Senate reauthorized broad executive authority for  electronic surveillance and collection. The vote was 73-to-23 and extended for five years the Foreign Intelligence Surveillance Act. The House adopted the legislation earlier in the year.  On Sunday the President the signed the extension into law. Proposed amendments, including those offered by Senator Wyden,  that would have enhanced Congressional oversight of FISA were defeated.  FISA was originally intended to provide due process for the gathering of intelligence on non-citizens and so protect the privacy of citizens.  There has been increasing concern regarding how FISA methods now unintentionally — but perhaps quite widely — sweep up citizen communications as well.

According to a December 13, 2012 Wall Street Journal report, there may be good cause for concern.   In an exclusive investigative report, Julia Angwin found that new Department of Justice guidelines, “now allow the little-known National Counterterrorism Center to examine the government files of U.S. citizens for possible criminal behavior, even if there is no reason to suspect them. That is a departure from past practice, which barred the agency from storing information about ordinary Americans unless a person was a terror suspect or related to an investigation. Now, NCTC can copy entire government databases—flight records, casino-employee lists, the names of Americans hosting foreign-exchange students and many others. The agency has new authority to keep data about innocent U.S. citizens for up to five years, and to analyze it for suspicious patterns of behavior. Previously, both were prohibited.”

Meanwhile the White House is, according to several sources including Presidential adviser John Brennan, developing a legal and procedural framework for the deadly use of drones. Addressing the use of drones during an October 18 appearance on “The Daily Show,” President Obama said,  “One of the things we’ve got to do is put a legal architecture in place, and we need Congressional help in order to do that, to make sure that not only am I reined in but any president’s reined in terms of some of the decisions that we’re making.”  According to a May report in the New York Times, “Mr. Obama has placed himself at the helm of a top secret “nominations” process to designate terrorists for kill or capture, of which the capture part has become largely theoretical. He had vowed to align the fight against Al Qaeda with American values; the chart, introducing people whose deaths he might soon be asked to order, underscored just what a moral and legal conundrum this could be.”   Among the President’s decisions, presumably, was the targeted killing of Anwar al-Awlaki, a US citizen who was killed by drone-delivered Hellfire missiles on September 30, 2011 and his sixteen year-old son, also born in the US, who was killed in another drone attack two weeks later.  Both citizens were killed in Yemen.

The predominant motivation in each instance above — and others — is the protection of the American people and nation.  There is no imminent threat of Orwellian intention or intervention.

In each of these examples legislators and the executive are attempting to develop due process that is appropriate to their understanding of the present challenge.   (The judicial branch is poised to soon rejoin consideration of the issue.)

Nonetheless while it is, I suspect, the specific intention of no one, the space where individual liberty adjoins civil authority is being incrementally reshaped.  In the Anglo-American tradition there has long been in both theory and practice the presumptive primacy of individual initiative, what Blackstone termed “the absolute rights of man.”  The balance is shifting toward a presumed ability by the government to maintain order.

Perhaps this is the inevitable outcome of more and more diverse individuals living in dense proximity to each other.  Perhaps it is a prudent response to demonstrated risk.  Perhaps it reflects an emerging social consensus that liberty is less valued than previously.  Or we might be in the process of  redefining liberty.  These shifts might even be the accidental consequence of what Nassim Taleb has termed “naive interventionism”.  The preference, even obligation, to “do something” over doing nothing, even when the doing is non-productive or counter-productive.

Whatever the cause, the pattern can be perceived and seems to be persisting.

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9 Comments »

Comment by HGRATTAN

January 3, 2013 @ 7:44 am

Targeted killing is not naive interventionism. The “targets” are deemed to be highly likely threats to US National Security. The review process is exhaustive, albeit, not full proof. The executive must sign off. The presumption is that we should and must trust the executive.

The Targets don’t play by civil rules. What is the alternative?

Comment by William R. Cumming

January 3, 2013 @ 7:54 am

Thanks Phil for this post! One sentence a quote stands out.
“One of the things we’ve got to do is put a legal architecture in place, and we need Congressional help in order to do that, to make sure that not only am I reined in but any president’s reined in terms of some of the decisions that we’re making.”

I wonder how many Constitutional law students at Harvard Law were flunked by Professor Obama when in fact they understood the Constitution and he does not.

Having John Brennan give speeches how to create an UnConsititutional DRONE WAR architecture is in fact why Brennan is unconfirmable as the next CIA Director. Raised in an institution and culture that has long believed it was above the law clearly these two players, the President and Brennan will go down in the history of the USA as King John and his key minion.

And when the President and Brennan recite the mantra that their duty is to protect the people and their property instead of the actual duty of protecting the Constitution it makes me shiver with worry.

Comment by William R. Cumming

January 3, 2013 @ 7:59 am

And as to HGRATTAN’s comment “The Targets don’t play by civil rules. What is the alternative?” there are many alternatives.

The failure of the Administration to openly discuss and develop alternatives is to reveal how deeply the Child King elected by the people continues to live in isolation and fear instead of leading.

And of course I did vote for him twice. Once to ensure Sarah Palin did not by accident or design become the Commander-In-Chief and once to prevent a man who believes that when he dies he will be a god on another planet from becoming President.

Where do we get such men?

Comment by Michael Brady

January 3, 2013 @ 12:30 pm

HGRATTAN,

“Targeted killing is not naive interventionism.”

Drone strikes are perceived as a low muss, low fuss way to assassinate individuals – some of them American citizens – in other countries. Assuming that killing everyone else in the vehicle or the house has no impact on our long-term interests is naive.

“The “targets” are deemed to be highly likely threats to US National Security. The review process is exhaustive, albeit, not full proof. The executive must sign off.”

So we’re assured by those who have decided so, when they choose to discuss it.

“The presumption is that we should and must trust the executive.”

If we “must” then “should” is of no consequence.

“The Targets don’t play by civil rules. What is the alternative?”

Again, so we’ve been told. We’ve been assured the targets are thoroughly vetted and are very bad men. But is raining death from the skies of Pakistan and Yemen working? Who says so? Is there no alternative? Who says so?

Comment by Michael Brady

January 3, 2013 @ 1:53 pm

U.S. can keep secrets on targeted killings of terrorism suspects overseas, judge rules

http://www.cbsnews.com/8301-201_162-57561760/u.s-can-keep-secrets-on-targeted-killings-of-terrorism-suspects-overseas-judge-rules/

In a decision signed Wednesday, U.S. District Judge Colleen McMahon chided the Obama administration for refusing to provide the documents but said she had no authority to order them disclosed.

“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,” the judge wrote. “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.”

Comment by Philip J. Palin

January 3, 2013 @ 4:06 pm

Mr. Grattan, Michael, and Bill: Apparently after I posted late Wednesday two very relevant news stories broke.

Michael has already commented on one, Judge McMahon released her decision in re: New York Times v. U.S. Department of Justice, 11-cv-9336, U.S. District Court, Southern District of New York. The decision is not yet available (1530 hours Thursday) on the District Court website. I hope it is available in time for a Friday post. The news reports suggest a decision overflowing with paradox, ambiguity, perhaps some ambivalence. If so, it has great potential to prompt vigorous thinking.

Early Thursday morning Mullah Nazir, two of his deputies, and perhaps seven others were apparently killed in a drone attack. These were, in Michael’s words, “very bad men.” There is also strong evidence of their decade-long campaign to expel US and coalition troops from Afghanistan. They were killed inside Pakistan. They were not US citizens. See a report in Dawn: http://dawn.com/2013/01/03/drone-strike-kills-four-in-s-waziristan-2/.

Mr. Grattan, some will find Nassim Taleb’s definition of “naive interventionism” eccentric. Mr. Taleb’s writing can be oracular (to which you might say, men in glass houses should not throw stones), but I understand he is trying to call our attention to the limitations of intention and certain knowledge. We do things with the full intention and considerable confidence of achieving X, but from our doing unwinds W+(X/3)+(T*Ysquared)… none of which we could reasonably anticipate.

From prior posts you know I am very uneasy about drones in general and the executive’s unilateral killing of citizens in particular. But in this post my intention (there’s that word again) was broader. I don’t much mind expediencies. I understand there are conditions that require a temporary suspension of principles and procedures and preferences. But I worry when we become so comfortable with what was recently a rare expedient that we want to make it a regular and respected habit. I especially worry when this process seems to be happening so secretly — or at least with such discretion — that even many thoughtful citizens may simply be unaware.

Mr. Grattan, from your prior comments I know that you and I have both admired Philip Bobbitt’s “Terror and Consent.” Mr. Bobbitt is ready for the Republic to fiercely defend itself by the strongest means. But I think his fundamental argument is that this ferocity must reflect the authentic consent of the governed… not just the outcome of slowly boiling frogs.

Isn’t it getting a bit steamy in here?

(Just found the McMahon decision. Here is your link, look for more tomorrow morning:
http://www.nysd.uscourts.gov/cases/show.php?db=special&id=251)

Comment by HGRATTAN

January 3, 2013 @ 5:22 pm

Phil,

1.Target killing is a necessary evil
2. Authentic consent of the governed is explicit and implicit in the Constitution. Ultimately, executive discretion is predicated on trust.
3. IMHO, the Nation needs to revisit our social contract.

Recomendations:
1. Constitutional Convention
2. Bill of Responsibilites predicated, in part, on Emerson’s Self Reliance

Comment by Christopher Tingus

January 3, 2013 @ 8:06 pm

Far too, too much government in the faces of We the People and while unlike the brilliant and much respected William R. Cumming who did vote twice for this anti-colonialist, anti-Christian, anti-Zionist, Barry Obama in his “Rev Wright-Obama pulpit” dedicated to only Bill Ayers, Hussein Obama, Ungor, Said, Soros, Frank Marshall and many of his Kenyan pals and whie I concur that Romney had his restrictions, nothing like this fella who seeks to impose government in every way and bring the USA and thus grand Republic down to par with other nations and intentionally gnawing at the Constitution he knows well…

As an Independent voter, while a proponent of a Democracy with a strong arsenal, the lack of budget, the lack of immigration reform, the empty political rhetoric and a failure in government with a budget deficit which will bring us to our knees…this is Not about those who profess about their loyalties to some political party, this is Now about the future of America and while 72% of Latinos voted for this fella who has no intentions to cut entitlements, but rather to enslave far more to poverty despite all this talk of his stance on behalf of the middle class – his divisive ways and his utilization of military resources for his own agenda in te Arab world is dangerous and w/Germany sending 800 Leopard tanks and far much more activity as it is on the march with its fast eployment army, folks we have allowed those we have “entrusted” far too much power and far too long in Washington!

Those in and out of the beltway are mustering a new political party and unless this ever imposing government in it self-indulgent way is held responsible, we are at grave peril.

There is a time to conduct certain military operations w/few knowing the facts as so many seek our demise, however in general we see an electorate and tainted media unwilling to ask tough questions and demanding accountability for example in the ‘Benghazi Massacrte” where intel folks advise that their repeated requests which went all the way up to the WH were shunned for this “Chicago city street slicker” and nothing more had pledge to the Iraqi locals that he would diminish US security presnce and now months passed and neither he nor Ms. Hillary have had to testify before Congress and the People and yes, unfortunately, many are in fact above the law and this, too will be our failure along with the failure to demand term limits.

While Romney may Not have ben the correct choice, neither is Uncle Johnny kerry for he to is perverse in his ways, limited in his perspectives and an akward man, truly unfamiliar with the many cultural differences he will confront.

Don’t fret though…The second go around shortly with both sides going at each other’s throats will turn out badly for us and with interest rates to rise and inflation obvious and taxes raised one very American whose tax dollars of at least $1 billion fiat federal reserve notes (dollars) are being sent from this WH to the Sharia Law Egyptian Islamic Brotherhood along with two dozen or so F-16′s in the next few weeks, Germany will soon downsize to ten (10) nations only and We will again be drivn into depression and a weakened America and this time, with failed leadership on both sides of the aisle and the indifference to our Judeo-Christian principles…for gay rights and Lesbian rights are far more an important discussion and legalizing pot….an ever imposing government soon to take your weapons and dictate what you will wear and eat will fail so miserably that calamity will befall us all as we have lost our way and we are No longer a Beacon of Hope to the Oppressed in distant shore for We are oppressed and in rereading about the Sugar Act 1764; the Stamp Act 1765; Quartering Act of 1765; the Townshend Act of 1767; the Tea Sct of 1773 and so on…We the People have allowed government to represent their own interests, failing to represent We the People and while Germany brings us to War again and will probably launch missiles even against us towards the end of this calamity…history repeats itself in so many ways, yet Winston Churchill was not only booted out of the WH by this divisive man and woman at the WH so prejudiced and little in their perceptions a sthe bust of Winston Churchill was sent back to #10 Downing Street as the first acts of this divisive WH who intent all along was to divide the classes and take from the wealhy who created wealth and jobs…jobs lacking where this half white man has left Black America with nearly 40% now five years or so later….with the only intent to woiden the influence of government on the citizen and to take away Rights and the Libert and Pursuit of Happiness which is certainly not in favor at the WH with this Chicago city street slicker – this community organizer…with his lack of Respect for our brave soldiers in the “benghzi massacre” left behind and his obvious disinterest in budget restraint seeking to ruin America by spendinga dn spending while folks like “Kerry” a billionaire…”Smug-smiled Pelosi, a multi-millionaire and so on and so forth could really give a dam about the real People who see inflation every day as groceries are going up and all costs are going up and the ignorant voted and now have a increased payroll tax while no substantial cuts to the budget have taken place and in fact, increased budget deficit is the theme of this dangerous WH and Congressional leadership who could given a damn…

Drones, just wait. This government will impose itself in every way, however I am depending on the folks at the NSA and the DoD to listen to converastions taking place from the WH as no longer do we trust the Wh, Ms Hillary at State and far many more and to the “Benghazi Massacre” where we have seen those “entrusted” by precious vote, oath to our nation and good People… obviously above the law and blatant lies where “Treason I Shout and Shame on You I Say” as Obama unfurls his Obama flag in the same week our good ‘ol Glory is burned throughout the Middle East for like in yemen where so much progress had been made and today, distrust as well in America and now a proliferation in training camps…enough with the bowing to sovereign king and kssing the ring of another and the blantant lies to fallen soldier’s family and such outrageous attack on natural born citizen stripping us here on “Main Street USA” to gve to law breakers (illegals) here and on the streets of Cairo and throughout the land…

The American citizen who cherishes our country and all those who haev served and many who have given their Life or limb to allow Liberty and dignity…we’ve had it and like the colonies, We shall begin to muster our militias in citizens in great numbers and stomp on those by demanding accountability from all these democrats and Republicans who have multi-millions and could really care anything for our beloved Republic or citizen, only in their self-serving way and their dysfunctional ways as we allow them to be avove the law!

“Treason I Shout and Shame on You I Say” -

Get your monies out of the stock market and save every penny you have for soon, inflation and bankrupcy and Depression will cause much stirring and much challenge to all America families for we have been duped! Yet, while this WH – whispers – to the “KGB Putinites” and soon will visit Tehran while Tehran has WMD in hand…keep a weary eye on the Germans and the Vatican and Islam for their swords are raised high and the new Confederate of Middle East States evolving rght now will ally itself with German and Christianity and Islam with such allies as Ethiopia and Iraq to Cairo for instance will destablize the Middle East shortly and as Pslam 83 celarly points out, the foolhearty in America who do not understand we have lived far beyond our means and the inevitability that Humpty is not only fallen from the wall but broken and will not ever be put together – we are a broken nation in spirit and commitment to our Judeo-Christian values so easily dismissed and soon this ever imposing government with its narrow perspectives vpid of true leadership has already failed and You have allowd it to do so….You did Not reoent and your self-interests will bring you much distress…you foolhearty who enables this WH to do little in promise other than fufill its own agenda!

God Bless us all! War and deprivation loom straight ahead and we shall contunue to falter in every way….

youhave forgotten all the fallen soldiers who understand that Freedom must have an arsenal and convey strength and the weakness we have conveyed has resulted in a host of more and more terrorist recruitment, however our weakened America is not the problem or challenge of those who seek their dastardly way..it is Germany and the Vatican and just as in history, a fast deployment Army and new naval vessels and political strategy taking place will assure taht Germany now fills the void in strong leadership throughout the Middle East and Islam and Christianity will again confront one another in much calamity to befall Europe and eventually all….

Pray to God…the Qur’an preaches Peace and Love and Biblical verse above all, well. its verses are clear, the wretched such as the “Brutes of tehran” and its newly forged ally with Cairo will cause much disruption as well and all must be weary of the Gerans who are strong and are not weak like we in America who allow over a billion dollars and F-16′s in these next few weeks to be sent by this WH to Barry Obama’s pals, the Egyptian Brotherhood who care little about the richness of Egyptian history and valued contribution to mnkind….

If we are broke, how do we send any dollars to anyone overseas other than the Brits! We are broke! Just look at the empty shelves of the local food banks!

Christopher Tingus
“Main Street USA”
PO Box 1612
Harwich (Cape Cod), MA 02645 USA
chris.tingus@gmail.com

Comment by Michael Brady

January 4, 2013 @ 12:55 pm

HGRATTAN

1.Target killing is a necessary evil

That may be true in some cases, but why won’t those who say so tell us how they decide the who, why, where, when, and how? Why won’t they tell us what level of badness delineates a suspect’s place on the continuum between a spot on the “No Fly” list and death by Hellfire? Why won’t they tell us how they decide whether to use a bullet, a car bomb, or a JDAM? Why won’t they tell us how they decide how many non-combatatants or innocents may be killed with the target?

2. Authentic consent of the governed is explicit and implicit in the Constitution. Ultimately, executive discretion is predicated on trust.

The Constitution is built upon a bedrock of distrust of powerful government institutions, particularly an unrestrained monarchy executive. Were trust in a wise and benevolent executive sufficient we would not need legislators or judges.

3. IMHO, the Nation needs to revisit our social contract.

IMHO, we Americans need to insist upon a return to the rule of law and to the values to which we aspire.

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