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maynard

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Italy's ex-intelligence chief given 10-year sentence for role in CIA kidnapping

Such accountability for high-level government officials is inconceivable in the US, highlighting its culture of impunity

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Glenn Greenwald
Glenn Greenwald
guardian.co.uk, Wednesday 13 February 2013 08.22 EST
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Abu Omar
Osama Moustafa Hassan Nasr, also known as Abu Omar, was kidnapped in 2003 by the CIA from the streets Milan and sent to Egypt. Photograph: EPA

A US State Department official on Monday "expressed concern" about what he called "a 'climate of impunity' over abuses by police and security forces" - in Egypt. The official, Michael Posner, warned that failure to investigate Egyptian state agents responsible for "cruel treatment of those in their custody" - including torture - creates "a lack of meaningful accountability for these actions". Last week, I wrote that "I've become somewhat of a connoisseur of US government statements that are so drowning in obvious, glaring irony that the officials uttering them simply must have been mischievously cackling to themselves when they created them," and this American denunciation of Egypt's "climate of impunity" almost certainly goes to the top of the list.

After all, Michael Posner works for the very same administration that not only refused to prosecute or even investigate US officials who tortured, kidnapped and illegally eavesdropped, but actively shielded them all from all forms of accountability: criminal, civil or investigative. Indeed, Posner works for the very same State Department that actively impeded efforts by countries whose citizens were subjected to those abuses - such as Spain and Germany - to investigate them. Being lectured by the US State Department about a "culture of impunity" is like being lectured by David Cameron about supporting Arab dictators.

To see just how extreme the US "culture of impunity" is, consider the extraordinary 2003 kidnapping by the CIA of the Muslim cleric, Hassan Mustafa Osama Nasr (Abu Omar), from the streets of Milan. Nasr, who in 2001 had been granted asylum by Italy from persecution in Egypt, was abducted by the CIA and then shipped back to Egypt where he was imprisoned for four years without charges and, he says, brutally tortured by America's long-standing ally, the Mubarak regime.

Der Spiegel described just what a standard kidnapping it was: Nasr "was seized in broad daylight on the open street, pushed into a white van, taken to the Aviano military airport and then flown to Egypt via the US Ramstein Air Base in Germany". Yesterday, an Italian appellate court sentenced the country's former intelligence chief, Niccolò Pollari, to ten years in prison "for complicity" in that kidnapping:

The appeals court, in Milan, sentenced the former chief, Niccolò Pollari, to 10 years and his former deputy Marco Mancini to nine years for their role in the kidnapping of the cleric, Hassan Mustafa Osama Nasr . . . . Three Italian secret service officials were also sentenced to six years each.

Mr. Nasr was kidnapped under the practice of 'extraordinary rendition', in which people suspected of being Islamic militants were abducted in one country and then transferred to another, often one where torture was common.

While Mr. Nasr was initially charged with membership in an illegal organization, the charges were ultimately dropped. He has since been released.

In other words, not only did the CIA kidnap Nasr and deliberately send him to an allied regime notorious for torture - a serious crime no matter who he was - but, as it turns out, he was guilty of absolutely nothing. What made him a kidnapping target was that, according to the New York Times, his "anti-American speeches and calls to jihad were resonating with young Muslim men who were attending his Islamic center".

Despite being convicted of no crime (other than criticizing US aggression), he was imprisoned in Egypt without charges for four years until a Cairo court found his detention unfounded and ordered him released. Upon release, he said "he had been reduced to a 'human wreck' by torture he had undergone in a Cairo jail". Nasr detailed the truly horrific kidnapping and torture he endured in a 2008 interview with Peter Bergen for Mother Jones, who used Italian court documents to write a comprehensive report on the case:


"A little before noon on February 17, 2003, Abu Omar was headed to his mosque, incongruously located inside a garage. He strolled down Via Guerzoni, a quiet street mostly empty of businesses and lined with high, view-blocking walls. A red Fiat pulled up beside him and a man jumped out, shouting 'Polizia! Polizia!' Abu Omar produced his ID. 'Suddenly I was lifted in the air,' he recalled. He was dragged into a white van and beaten, he said, by wordless men wearing balaclavas. After trussing him with restraints and blindfolding him, they sped away.

"Hours later, when the van stopped, Abu Omar heard airplane noise. His clothes were cut off and something was stuffed in his anus, likely a tranquilizing suppository. His head was entirely covered in tape with only small holes for his mouth and nose, and he was placed on a plane. Hours later he was hustled off the jet. He heard someone speaking Arabic in a familiar cadence; in the distance, a muezzin was calling the dawn prayer. After more than a decade in exile, he was back in Egypt. . . .

"Spreading his arms in a crucifixion position, he demonstrates how he was tied to a metal door as shocks were administered to his nipples and genitals. His legs tremble as he describes how he was twice raped. He mentions, almost casually, the hearing loss in his left ear from the beatings, and how he still wakes up at night screaming, takes tranquilizers, finds it hard to concentrate, and has unspecified 'problems with my wife at home.' He is, in short, a broken man."

Yesterday's 10-year sentence was based on a 2010 finding by an Italian judge that "the Italian secret service was most likely aware of, 'and perhaps complicit in,' the operation". In 2009, an Italian criminal court found 23 individual CIA agents (including the Milan station chief, Robert Lady) guilty of kidnapping and other crimes, but was forced to try them in abstentia because the US (first under Bush and then Obama) pressured the Italian government to suppress extradition requests issued by Italian courts to compel those CIA agents to travel to Italy to stand trial.

This entire case reveals vital facts about the culture of impunity for high-level officials that prevails in the US even when they commit the most egregious crimes:

First, it is completely inconceivable that anything like what just happened in Italy could happen in the US. Even in the face of overwhelming evidence that the highest-level US officials had systematically committed felonies under the War on Terror rubric, both political parties, bolstered by a virtual consensus of the DC press, united to block all forms of accountability. A sacred rule in US political culture is that high-level state officials are to be shielded from all accountability, let alone criminal punishment, for how they abuse power.

In sum, US officials are not subject to the rule of law but reside above it. Neither party's establishment nor their Adversarial Press Corps would ever tolerate the CIA Director being prosecuted for his crimes the way Italy's just was. The defense offered to the press by Lady, the CIA's Milan station chief - I was just following orders - is exactly what resonates in US elite circles as an excuse for all crimes: if the US government does it, then it is, by definition, shielded from legal punishment.

Second, both Bush and Obama officials continuously attempted to apply coercive pressure on Italian magistrates to obstruct this investigation, and when that failed, applied the same pressure to the Berlusconi and Prodi governments. Indeed, numerous diplomatic cables published by WikiLeaks detail those efforts, and the Italian journalist Stefania Maurizi of L'Espresso described that campaign of obstruction in her book "Dossier WikiLeaks. Segreti Italiani."

One 2006 cable describes a meeting between US Ambassador Ronald Spogli and Italy's new Undersecretary to the Prime Minister Enrico Letta in which the US made not-so-subtle threats about the need of the Italian government to suppress extradition requests for the CIA agents:

In the context of keeping our excellent bilateral relationship on sound footing, the Ambassador explained to Letta that nothing would damage relations faster or more seriously than a decision by the GOI to forward warrants for arrests of the alleged CIA agents named in connection with the Abu Omar case. This was absolutely critical. Letta took note of this and suggested the Ambassador discuss the matter personally with Justice Minister Mastella, who Letta suggested should be invited to Washington for an early meeting with the Attorney General.

A 2007 cable describes plotting between the US and Italian governments to thwart the judicial investigation. They agreed that the US should "send something in writing to [the Italian justice official] explaining that the US would not act on extradition requests in the Abu Omar case if tendered", which "could be used pre-emptively by the GOI to fend off action by Italian magistrates to seek the extradition of the implicated Americans". In response, "the [US] Ambassador agreed that we should work to avoid having extradition requests forwarded."

A 2010 cable details a meeting between Defense Secretary Robert Gates and Berlusconi in which Gates "asked Berlusconi for his assistance in affirming US jurisdiction" over one of the high-level CIA defendants." A 2011 cable noted that "Justice Minister Mastella has so far kept the lid on recurring judicial demands to extradite presumed CIA officers allegedly involved in a rendition of Muslim cleric Abu Omar."

This US pressure campaign succeeded in quashing the efforts of the Italian judiciary to hold these CIA agents criminally accountable for their crimes in Italy. Indeed, as Maurizi told me yesterday, "five different Italian ministers of Justice refused to forward extradition requests for CIA agents." After Italy's highest court upheld the convictions of the CIA agents last September, the Guardian noted: "successive Italian governments denied all knowledge of the case and consistently ruled out extradition."

Under serious pressure from two successive US administrations, the Italian justice ministers simply refused to forward their own courts' extradition demands. The Italian courts were thus left to imprison their own officials for the ancillary role they played in the kidnapping because the US government, as usual, draped its own officials with a full-scale shield of immunity.

Third, what allowed this accountability in Italy is exactly what the US so tragically lacks: a brave and independent judiciary willing to perform its core ostensible function of applying the law equally to everyone, including those who wield the greatest power. Indeed, a 2005 US diplomatic cable complained that "Italian magistrates [prosecutors] are fiercely independent and are not answerable to any government authority/entity, including the Minister of Justice" and that "consequently, it is nearly impossible to prevent them from undertaking action in Italy that they wish to carry out."

This prosecution was possible in the first instance only because a single Italian magistrate, Armando Spataro, insisted on pursuing it despite all sorts of attacks against him. This 2009 Der Spiegel article reports that, as a result of his pursuit of the case, "his communications were monitored, the Italian intelligence service placed him under observation and there were even investigations into whether he had betrayed state secrets. The government tried again and again to silence him." But the magistrates ignored those repressive efforts, eventually even seizing Lady's retirement villa in Italy to cover court costs.

Numerous cables show Italian officials, especially Berlusconi himself, attacking the Italian magistrates and assuring the US that Italian courts would eventually stop them. One 2005 US cable celebrates that Minister of Justice Roberto Castelli "took the unusual step of publicly criticizing a member of Italy's highly independent magistracy" over this case, specifically that he "called Armando Spataro a "militant'. meaning a communist" (ironically, Spataro previously "faced accusations of right-wing bias when he led prosecutions of the Red Brigade terrorist organization in the late 1970's and 1980's".) That public denunciation of the magistrate happened, recounted the US cable, after he "presented Castelli with requests for the provisional arrest in contemplation of extradition for 22 Americans involved in the alleged rendition of Egyptian Imam Abu Omar from Milan."

Assuring Washington that the prosecution of the CIA agents was politically motivated and would be stopped, this US cable claimed:


"In the 1960s and 1970s Italian communists made a concerted effort to 'infiltrate' the judiciary; today, many Italian judges are considered to be sympathetic to the left and some have made decisions that undermine our shared security objectives. . . .

"Berlusconi's government certainly believes that judicial treatment of the Abu Omar case is an example of a politically motivated action directed, not at the US, but at Berlusconi in an further attempt to embarrass the Prime Minister. Castelli's very public criticism of Spataro is a sign he is willing to risk criticizing the judiciary in order to avoid precipitous action in this case."

The 2010 cable describing the meeting between Gates and Berlusconi describes how "Berlusconi gave an extended rant about the Italian judicial system - which frequently targets him since it is 'dominated
by leftists' as the public prosecutor level." Moreover, "Berlusconi predicted that the 'courts will come down in our favor' upon appeal, noting that higher-level appellate courts are significantly less politicized than local courts."

But that did not happen. Indeed, the opposite happened: Italian appellate courts were even more aggressive and steadfast in demanding accountability than the lower courts. Just two weeks ago, an Italian appellate court vacated the acquittals of three CIA agents whom a lower court had protected on the ground of diplomatic immunity and then sentenced one of them - former CIA Rome station chief Jeffrey Castelli - to seven years in prison. Last September, it was Italy's highest court that upheld the convictions of the 23 CIA agents. And yesterday's 10-year sentence for Italy's ex-intelligence chief was also imposed by an appeals court.

So what Berlucsoni predicted never happened. Italian courts exercised great independence and courage in applying the law to both the American and Italian kidnappers without regard to their power and position.

The contrast with the US federal judiciary is stark. American federal judges have proven themselves indescribably servile to the US government. It is impossible to imagine American federal judges - except in the most aberrational and quickly-overturned instances - defying the wishes of the US government when it comes to claims of national security and secrecy.

Indeed, not a single victim of the abuses of the US War on Terror - not one - has even been allowed by the US federal judiciary to have a day in court, let alone obtain accountability for what was done to them. Federal judges have obediently slammed the courthouse doors shut in the faces of War on Terror victims even when everyone recognizes that the victims were treated savagely and were guilty of nothing. Indeed, US courts have refused even to hear cases brought by rendition (kidnapping) victims. Instead, US federal judges, over and over, have meekly submitted to the decrees of US national security state officials that the mandates of secrecy and national security shield them from any form of judicial review even when they kidnap and torture innocent people.

An independent judiciary, willing to apply the law even to the most powerful political officials, is a prerequisite to a healthy political system that functions under the rule of law. As this case vividly demonstrates, Italy has that and the US does not. Of all the US institutions that have shamefully abdicated their duties in the post-9/11 era, the federal judiciary is at the top of that list. That is why even the former head of Italy's intelligence service faces criminal punishment for kidnapping an innocent person while such accountability is inconceivable in the US. It is why the "rule of law" is a ludicrous joke when it comes to US elites.
The importance of leaks

We also see here, yet again, how monumentally important leaks are. Almost everything we know about the conduct of the US government in this case comes from diplomatic cables published by WikiLeaks and allegedly disclosed by Bradley Manning. It is remarkable how often major media outlets rely on WikiLeaks documents to report to their readers what is happening in the world. For exactly that reason, it is no mystery why the US government is so eager to punish so severely those responsible for leaks generally and these disclosures specifically: precisely because nothing sheds light on their bad acts the way whistleblowing does.




http://www.guardian.co.uk/commentisfree/2013/feb/13/italy-cia-rendition-abu-omar

__________________
A TAINTED DEAL http://www.motherjones.com/politics/1998/06/tainted-deal

 LA DEA; Murder of Kiki Camarena http://www.laweekly.com/news/how-a-dogged-la-dea-agent-unraveled-the-cias-alleged-role-in-the-murder-of-kiki-camarena-5750278  

"Several informed sources have told me that an appendix to this Report was removed at the instruction of the DOJ at the last minute. This appendix is reported to have information about a CIA officer, not agent or asset, but officer, based in the LA Station, who was in charge of Contra related activities. According to these sources, this individual was associated with running drugs to South Central L.A., around 1988. Let me repeat that amazing omission. The recently released CIA Report Vol II contained an appendix, which was pulled by the DOJ, that reported a CIA officer in the LA Station was hooked into drug running in South Central Los Angeles." Maxine Waters Oct, 1998
https://fas.org/irp/congress/1998_cr/h981013-coke.htm   

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maynard

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Posts: 1,194
Reply with quote  #2 
Chilling legal memo from Obama DOJ justifies assassination of US citizens

The president's partisan lawyers purport to vest him with the most extreme power a political leader can seize


Glenn Greenwald
Glenn Greenwald
guardian.co.uk, Tuesday 5 February 2013 10.56 EST


The most extremist power any political leader can assert is the power to target his own citizens for execution without any charges or due process, far from any battlefield. The Obama administration has not only asserted exactly that power in theory, but has exercised it in practice. In September 2011, it killed US citizen Anwar Awlaki in a drone strike in Yemen, along with US citizen Samir Khan, and then, in circumstances that are still unexplained, two weeks later killed Awlaki's 16-year-old American son Abdulrahman with a separate drone strike in Yemen.

Since then, senior Obama officials including Attorney General Eric Holder and John Brennan, Obama's top terrorism adviser and his current nominee to lead the CIA, have explicitly argued that the president is and should be vested with this power. Meanwhile, a Washington Post article from October reported that the administration is formally institutionalizing this president's power to decide who dies under the Orwellian title "disposition matrix".

When the New York Times back in April, 2010 first confirmed the existence of Obama's hit list, it made clear just what an extremist power this is, noting: "It is extremely rare, if not unprecedented, for an American to be approved for targeted killing." The NYT quoted a Bush intelligence official as saying "he did not know of any American who was approved for targeted killing under the former president". When the existence of Obama's hit list was first reported several months earlier by the Washington Post's Dana Priest, she wrote that the "list includes three Americans".

What has made these actions all the more radical is the absolute secrecy with which Obama has draped all of this. Not only is the entire process carried out solely within the Executive branch - with no checks or oversight of any kind - but there is zero transparency and zero accountability. The president's underlings compile their proposed lists of who should be executed, and the president - at a charming weekly event dubbed by White House aides as "Terror Tuesday" - then chooses from "baseball cards" and decrees in total secrecy who should die. The power of accuser, prosecutor, judge, jury, and executioner are all consolidated in this one man, and those powers are exercised in the dark.

In fact, The Most Transparent Administration Ever™ has been so fixated on secrecy that they have refused even to disclose the legal memoranda prepared by Obama lawyers setting forth their legal rationale for why the president has this power. During the Bush years, when Bush refused to disclose the memoranda from his Office of Legal Counsel (OLC) that legally authorized torture, rendition, warrantless eavesdropping and the like, leading Democratic lawyers such as Dawn Johnsen (Obama's first choice to lead the OLC) vehemently denounced this practice as a grave threat, warning that "the Bush Administration's excessive reliance on 'secret law' threatens the effective functioning of American democracy" and "the withholding from Congress and the public of legal interpretations by the [OLC] upsets the system of checks and balances between the executive and legislative branches of government."

But when it comes to Obama's assassination power, this is exactly what his administration has done. It has repeatedly refused to disclose the principal legal memoranda prepared by Obama OLC lawyers that justified his kill list. It is, right now, vigorously resisting lawsuits from the New York Times and the ACLU to obtain that OLC memorandum. In sum, Obama not only claims he has the power to order US citizens killed with no transparency, but that even the documents explaining the legal rationale for this power are to be concealed. He's maintaining secret law on the most extremist power he can assert.

Last night, NBC News' Michael Isikoff released a 16-page "white paper" prepared by the Obama DOJ that purports to justify Obama's power to target even Americans for assassination without due process (the memo is embedded in full below). This is not the primary OLC memo justifying Obama's kill list - that is still concealed - but it appears to track the reasoning of that memo as anonymously described to the New York Times in October 2011.

This new memo is entitled: "Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of Al-Qa'ida or An Associated Force". It claims its conclusion is "reached with recognition of the extraordinary seriousness of a lethal operation by the United States against a US citizen". Yet it is every bit as chilling as the Bush OLC torture memos in how its clinical, legalistic tone completely sanitizes the radical and dangerous power it purports to authorize.

I've written many times at length about why the Obama assassination program is such an extreme and radical threat - see here for one of the most comprehensive discussions, with documentation of how completely all of this violates Obama and Holder's statements before obtaining power - and won't repeat those arguments here. Instead, there are numerous points that should be emphasized about the fundamentally misleading nature of this new memo:
1. Equating government accusations with guilt

The core distortion of the War on Terror under both Bush and Obama is the Orwellian practice of equating government accusations of terrorism with proof of guilt. One constantly hears US government defenders referring to "terrorists" when what they actually mean is: those accused by the government of terrorism. This entire memo is grounded in this deceit.

Time and again, it emphasizes that the authorized assassinations are carried out "against a senior operational leader of al-Qaida or its associated forces who poses an imminent threat of violent attack against the United States." Undoubtedly fearing that this document would one day be public, Obama lawyers made certain to incorporate this deceit into the title itself: "Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of al-Qaida or An Associated Force."

This ensures that huge numbers of citizens - those who spend little time thinking about such things and/or authoritarians who assume all government claims are true - will instinctively justify what is being done here on the ground that we must kill the Terrorists or joining al-Qaida means you should be killed. That's the "reasoning" process that has driven the War on Terror since it commenced: if the US government simply asserts without evidence or trial that someone is a terrorist, then they are assumed to be, and they can then be punished as such - with indefinite imprisonment or death.

But of course, when this memo refers to "a Senior Operational Leader of al-Qaida", what it actually means is this: someone whom the President - in total secrecy and with no due process - has accused of being that. Indeed, the memo itself makes this clear, as it baldly states that presidential assassinations are justified when "an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the US".

This is the crucial point: the memo isn't justifying the due-process-free execution of senior al-Qaida leaders who pose an imminent threat to the US. It is justifying the due-process-free execution of people secretly accused by the president and his underlings, with no due process, of being that. The distinction between (a) government accusations and (b) proof of guilt is central to every free society, by definition, yet this memo - and those who defend Obama's assassination power - willfully ignore it.

Those who justify all of this by arguing that Obama can and should kill al-Qaida leaders who are trying to kill Americans are engaged in supreme question-begging. Without any due process, transparency or oversight, there is no way to know who is a "senior al-Qaida leader" and who is posing an "imminent threat" to Americans. All that can be known is who Obama, in total secrecy, accuses of this.

(Indeed, membership in al-Qaida is not even required to be assassinated, as one can be a member of a group deemed to be an "associated force" of al-Qaida, whatever that might mean: a formulation so broad and ill-defined that, as Law Professor Kevin Jon Heller argues, it means the memo "authorizes the use of lethal force against individuals whose targeting is, without more, prohibited by international law".)

The definition of an extreme authoritarian is one who is willing blindly to assume that government accusations are true without any evidence presented or opportunity to contest those accusations. This memo - and the entire theory justifying Obama's kill list - centrally relies on this authoritarian conflation of government accusations and valid proof of guilt.

They are not the same and never have been. Political leaders who decree guilt in secret and with no oversight inevitably succumb to error and/or abuse of power. Such unchecked accusatory decrees are inherently untrustworthy (indeed, Yemen experts have vehemently contested the claim that Awlaki himself was a senior al-Qaida leader posing an imminent threat to the US). That's why due process is guaranteed in the Constitution and why judicial review of government accusations has been a staple of western justice since the Magna Carta: because leaders can't be trusted to decree guilt and punish citizens without evidence and an adversarial process. That is the age-old basic right on which this memo, and the Obama presidency, is waging war.
2. Creating a ceiling, not a floor

The most vital fact to note about this memorandum is that it is not purporting to impose requirements on the president's power to assassinate US citizens. When it concludes that the president has the authority to assassinate "a Senior Operational Leader of al-Qaida" who "poses an imminent threat of violent attack against the US" where capture is "infeasible", it is not concluding that assassinations are permissible only in those circumstances.

To the contrary, the memo expressly makes clear that presidential assassinations may be permitted even when none of those circumstances prevail: "This paper does not attempt to determine the minimum requirements necessary to render such an operation lawful." Instead, as the last line of the memo states: "it concludes only that the stated conditions would be sufficient to make lawful a lethal operation" - not that such conditions are necessary to find these assassinations legal. The memo explicitly leaves open the possibility that presidential assassinations of US citizens may be permissible even when the target is not a senior al-Qaida leader posing an imminent threat and/or when capture is feasible.

Critically, the rationale of the memo - that the US is engaged in a global war against al-Qaida and "associated forces" - can be easily used to justify presidential assassinations of US citizens in circumstances far beyond the ones described in this memo. If you believe the president has the power to execute US citizens based on the accusation that the citizen has joined al-Qaida, what possible limiting principle can you cite as to why that shouldn't apply to a low-level al-Qaida member, including ones found in places where capture may be feasible (including US soil)? The purported limitations on this power set forth in this memo, aside from being incredibly vague, can be easily discarded once the central theory of presidential power is embraced.
3. Relies on the core Bush/Cheney theory of a global battlefield

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.

This new memo makes clear that this Bush/Cheney worldview is at the heart of the Obama presidency. The president, it claims, "retains authority to use force against al-Qaida and associated forces outside the area of active hostilities". In other words: there are, subject to the entirely optional "feasibility of capture" element, no geographic limits to the president's authority to kill anyone he wants. This power applies not only to war zones, but everywhere in the world that he claims a member of al-Qaida is found. This memo embraces and institutionalizes the core Bush/Cheney theory that justified the entire panoply of policies Democrats back then pretended to find so objectionable.
4. Expanding the concept of "imminence" beyond recognition

The memo claims that the president's assassination power applies to a senior al-Qaida member who "poses an imminent threat of violent attack against the United States". That is designed to convince citizens to accept this power by leading them to believe it's similar to common and familiar domestic uses of lethal force on US soil: if, for instance, an armed criminal is in the process of robbing a bank or is about to shoot hostages, then the "imminence" of the threat he poses justifies the use of lethal force against him by the police.

But this rhetorical tactic is totally misleading. The memo is authorizing assassinations against citizens in circumstances far beyond this understanding of "imminence". Indeed, the memo expressly states that it is inventing "a broader concept of imminence" than is typically used in domestic law. Specifically, the president's assassination power "does not require that the US have clear evidence that a specific attack . . . will take place in the immediate future". The US routinely assassinates its targets not when they are engaged in or plotting attacks but when they are at home, with family members, riding in a car, at work, at funerals, rescuing other drone victims, etc.

Many of the early objections to this new memo have focused on this warped and incredibly broad definition of "imminence". The ACLU's Jameel Jaffer told Isikoff that the memo "redefines the word imminence in a way that deprives the word of its ordinary meaning". Law Professor Kevin Jon Heller called Jaffer's objection "an understatement", noting that the memo's understanding of "imminence" is "wildly overbroad" under international law.

Crucially, Heller points out what I noted above: once you accept the memo's reasoning - that the US is engaged in a global war, that the world is a battlefield, and the president has the power to assassinate any member of al-Qaida or associated forces - then there is no way coherent way to limit this power to places where capture is infeasible or to persons posing an "imminent" threat. The legal framework adopted by the memo means the president can kill anyone he claims is a member of al-Qaida regardless of where they are found or what they are doing.

The only reason to add these limitations of "imminence" and "feasibility of capture" is, as Heller said, purely political: to make the theories more politically palatable. But the definitions for these terms are so vague and broad that they provide no real limits on the president's assassination power. As the ACLU's Jaffer says: "This is a chilling document" because "it argues that the government has the right to carry out the extrajudicial killing of an American citizen" and the purported limits "are elastic and vaguely defined, and it's easy to see how they could be manipulated."
5. Converting Obama underlings into objective courts

This memo is not a judicial opinion. It was not written by anyone independent of the president. To the contrary, it was written by life-long partisan lackeys: lawyers whose careerist interests depend upon staying in the good graces of Obama and the Democrats, almost certainly Marty Lederman and David Barron. Treating this document as though it confers any authority on Obama is like treating the statements of one's lawyer as a judicial finding or jury verdict.

Indeed, recall the primary excuse used to shield Bush officials from prosecution for their crimes of torture and illegal eavesdropping: namely, they got Bush-appointed lawyers in the DOJ to say that their conduct was legal, and therefore, it should be treated as such. This tactic - getting partisan lawyers and underlings of the president to say that the president's conduct is legal - was appropriately treated with scorn when invoked by Bush officials to justify their radical programs. As Digby wrote about Bush officials who pointed to the OLC memos it got its lawyers to issue about torture and eavesdropping, such a practice amounts to:

"validating the idea that obscure Justice Department officials can be granted the authority to essentially immunize officials at all levels of the government, from the president down to the lowest field officer, by issuing a secret memo. This is a very important new development in western jurisprudence and one that surely requires more study and consideration. If Richard Nixon and Ronald Reagan had known about this, they could have saved themselves a lot of trouble."

Life-long Democratic Party lawyers are not going to oppose the terrorism policies of the president who appointed them. A president can always find underlings and political appointees to endorse whatever he wants to do. That's all this memo is: the by-product of obsequious lawyers telling their Party's leader that he is (of course) free to do exactly that which he wants to do, in exactly the same way that Bush got John Yoo to tell him that torture was not torture, and that even it if were, it was legal.

That's why courts, not the president's partisan lawyers, should be making these determinations. But when the ACLU tried to obtain a judicial determination as to whether Obama is actually authorized to assassinate US citizens, the Obama DOJ went to extreme lengths to block the court from ruling on that question. They didn't want independent judges to determine the law. They wanted their own lawyers to do so.

That's all this memo is: Obama-loyal appointees telling their leader that he has the authority to do what he wants. But in the warped world of US politics, this - secret memos from partisan lackeys - has replaced judicial review as the means to determine the legality of the president's conduct.
6. Making a mockery of "due process"

The core freedom most under attack by the War on Terror is the Fifth Amendment's guarantee of due process. It provides that "no person shall be . . . deprived of life . . . without due process of law". Like putting people in cages for life on island prisons with no trial, claiming that the president has the right to assassinate US citizens far from any battlefield without any charges or trial is the supreme evisceration of this right.

The memo pays lip service to the right it is destroying: "Under the traditional due process balancing analysis . . . . we recognize that there is no private interest more weighty than a person's interest in his life." But it nonetheless argues that a "balancing test" is necessary to determine the extent of the process that is due before the president can deprive someone of their life, and further argues that, as the New York Times put it when this theory was first unveiled: "while the Fifth Amendment's guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch."

Stephen Colbert perfectly mocked this theory when Eric Holder first unveiled it to defend the president's assassination program. At the time, Holder actually said: "due process and judicial process are not one and the same." Colbert interpreted that claim as follows:

"Trial by jury, trial by fire, rock, paper scissors, who cares? Due process just means that there is a process that you do. The current process is apparently, first the president meets with his advisers and decides who he can kill. Then he kills them."

It is fitting indeed that the memo expressly embraces two core Bush/Cheney theories to justify this view of what "due process" requires. First, it cites the Bush DOJ's core view, as enunciated by John Yoo, that courts have no role to play in what the president does in the War on Terror because judicial review constitutes "judicial encroachment" on the "judgments by the President and his national security advisers as to when and how to use force". And then it cites the Bush DOJ's mostly successful arguments in the 2004 Hamdi case that the president has the authority even to imprison US citizens without trial provided that he accuses them of being a terrorist.

The reason this is so fitting is because, as I've detailed many times, it was these same early Bush/Cheney theories that made me want to begin writing about politics, all driven by my perception that the US government was becoming extremist and dangerous. During the early Bush years, the very idea that the US government asserted the power to imprison US citizens without charges and due process (or to eavesdrop on them) was so radical that, at the time, I could hardly believe they were being asserted out in the open.

Yet here we are almost a full decade later. And we have the current president asserting the power not merely to imprison or eavesdrop on US citizens without charges or trial, but to order them executed - and to do so in total secrecy, with no checks or oversight. If you believe the president has the power to order US citizens executed far from any battlefield with no charges or trial, then it's truly hard to conceive of any asserted power you would find objectionable.
DOJ white paper


http://www.guardian.co.uk/commentisfree/2013/feb/05/obama-kill-list-doj-memo


Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Q... by Mike Riggs

__________________
A TAINTED DEAL http://www.motherjones.com/politics/1998/06/tainted-deal

 LA DEA; Murder of Kiki Camarena http://www.laweekly.com/news/how-a-dogged-la-dea-agent-unraveled-the-cias-alleged-role-in-the-murder-of-kiki-camarena-5750278  

"Several informed sources have told me that an appendix to this Report was removed at the instruction of the DOJ at the last minute. This appendix is reported to have information about a CIA officer, not agent or asset, but officer, based in the LA Station, who was in charge of Contra related activities. According to these sources, this individual was associated with running drugs to South Central L.A., around 1988. Let me repeat that amazing omission. The recently released CIA Report Vol II contained an appendix, which was pulled by the DOJ, that reported a CIA officer in the LA Station was hooked into drug running in South Central Los Angeles." Maxine Waters Oct, 1998
https://fas.org/irp/congress/1998_cr/h981013-coke.htm   

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maynard

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About Those Black Sites
Published: February 17, 2013
https://www.nytimes.com/2013/02/18/opinion/about-those-black-sites.html


The details of American antiterrorism policies, put in place after 9/11, are still largely hidden, but more pieces of this sordid history are dribbling out.
Related

Italy Jails Ex-Officials for Rendition (February 13, 2013)
Italian Court Convicts 3 Americans in Kidnapping Case (February 2, 2013)
Senate Panel Approves Findings Critical of Detainee Interrogations (December 14, 2012)



A valuable new report issued this month by the Open Society Justice Initiative documents the extent of the Central Intelligence Agency’s use of extraordinary rendition — the practice of abducting suspected terrorists and transferring them to countries with reputations for torturing prisoners during interrogations.

Reporting by The Times and other news media has long established that the C.I.A. operated a secret detention program with “black site” prisons outside the United States. In December, the Senate Intelligence Committee approved a highly critical, classified report on this program that has not been released. Committee members invoked its findings without revealing any useful new information at the recent confirmation hearing for John Brennan, the Obama administration’s top counterterrorism official, who was named to head the C.I.A. But the committee chairwoman, Senator Dianne Feinstein of California, has said that the black sites and coercive techniques were “terrible mistakes.”

According to the Open Society report, 54 countries participated in this program, including many where the rule of law is weak or nonexistent, like Afghanistan, Pakistan, Egypt, Malaysia and Somalia. More surprising and alarming is the collusion of leading democracies. Belgium, Finland and Denmark, among others, allowed their airports and airspace to be used for flights associated with C.I.A. rendition operations. Britain, Italy, Germany and Australia helped interrogate one or more suspects and either allowed or actively aided in their transfers.

The report also contains information about the identities and treatment of 136 suspects who were subjected to C.I.A. detention or rendition. There may be many more individuals caught in this program, but the total number remains unknown. There has been no accountability for the program’s violations of American or international law. President Obama refused to investigate Bush administration officials who bear responsibility for authorizing human rights abuses. He ordered an end to President George W. Bush’s torture policies and the closing of C.I.A. detention facilities, but the Open Society report said Mr. Obama did not repudiate rendition and suggested that some activities could be continuing, including a secret prison in Somalia run with C.I.A. involvement.

In a connected matter, Mr. Obama has adopted the Bush administration’s claim of a right to carry out targeted killings of suspected terrorists, including Americans, off the battlefield without judicial review or meaningful Congressional oversight.

Victims seeking compensation for wrongful detention and torture in overseas prisons have been turned away by federal courts because the Obama administration has continued its predecessor’s wildly broad claims that such lawsuits divulge state secrets. But there is hope in legal recourse in other venues.

Two weeks ago, an appeals court in Italy convicted a C.I.A. station chief and two other Americans for kidnapping a radical cleric in Milan in 2003 and sending him to Egypt. The decision means all 26 Americans tried in absentia for the abduction have been found guilty. On Tuesday, Italy’s former military intelligence chief was sentenced to 10 years in prison for complicity in the case.

In December, the European Court of Human Rights ruled that the kidnapping and treatment of Khaled el-Masri, a German citizen mistaken for a terrorist and brutalized by a C.I.A. team at the airport in Macedonia in 2003, amounted to torture. He was never charged with a crime or given access to a lawyer. The case was brought against Macedonia because the European court does not have jurisdiction over the United States.

Both judgments are important condemnations of C.I.A. tactics under the Bush administration. They are also a warning to Mr. Obama that pressure for the United States and its partners to acknowledge and make amends for gross violations of international legal and human rights standards is unlikely to subside.

A version of this editorial appeared in print on February 18, 2013, on page A16 of the New York edition with the headline: About Those Black Sites.

__________________
A TAINTED DEAL http://www.motherjones.com/politics/1998/06/tainted-deal

 LA DEA; Murder of Kiki Camarena http://www.laweekly.com/news/how-a-dogged-la-dea-agent-unraveled-the-cias-alleged-role-in-the-murder-of-kiki-camarena-5750278  

"Several informed sources have told me that an appendix to this Report was removed at the instruction of the DOJ at the last minute. This appendix is reported to have information about a CIA officer, not agent or asset, but officer, based in the LA Station, who was in charge of Contra related activities. According to these sources, this individual was associated with running drugs to South Central L.A., around 1988. Let me repeat that amazing omission. The recently released CIA Report Vol II contained an appendix, which was pulled by the DOJ, that reported a CIA officer in the LA Station was hooked into drug running in South Central Los Angeles." Maxine Waters Oct, 1998
https://fas.org/irp/congress/1998_cr/h981013-coke.htm   

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