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Terror Tuesday: the imperiled Constitution

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Is a new governmental system in the making in which portions of the Constitution are either excised entirely or radically interpreted along the lines proposed by the Obama Administration? Will we see another secret court emerge that will – like the Foreign Intelligence Surveillance Court and Military Commissions – further dilute constitutional protections?

That may well be where we are headed after a week that saw an executive branch strip tease revealing for a chosen few its legal memo for putting American citizens on death lists; John Brennan’s largely tepid questioning by the Senate Intelligence Committee; and court hearings into the NDAA’s indefinite detention provision and the 'targeted killing' of Americans.

Secrets will out. On the eve of the Brennan hearing, President Obama ordered the Justice Department's Office of Legal Counsel to make available to members of the Senate and House Committees on Intelligence – but not their staffs – the legal memo that had long been demanded by some Members of Congress, the ACLU, The New York Times and other organizations.

The outcry that followed the surfacing of a Justice Department 'white paper' providing a summary of the secret legal opinion finally dislodged it from its hiding place.

But if the President thought that dropping a few veils before a few Members of Congress would mollify the rest, he was mistaken. The Senate Intelligence Committee chair Dianne Feinstein expressed her frustration that the Committee could not consult its own legal experts while Judiciary Committee members charged with oversight of the Department of Justice said hey, what about us?

The other secret that finally saw the light of day on the eve of the Brennan hearings was one that had been suppressed by major news outlets – including The New York Times, Washington Post and Associated Press – for over a year. On February 5, The Washington Post revealed that the CIA had for over two years been operating a secret drone base in Saudi Arabia from which the drones were sent that that killed Anwar Al-Awlaki. (The base may – or may not – be located here).

The Post later reported that the media had agreed not to write about the base for fear of the reaction that might cause in Saudi Arabia. The arrival of US troops in the Kingdom in 1990 was a prime Al Qaeda grievance and recruiting tool.

But Margaret Sullivan, Public Editor of The New York Times, wasn’t buying the rationale for secrecy. In her February 10 column she argued:

Keeping the government’s secrets is not the news media’s role, unless there is a clear, direct and life-threatening reason to justify it…this administration, while vowing transparency and accountability, has actually become ever more secretive and punitive: stamping ‘classified’ on everything in sight, pursuing whistle-blowers as never before, and prosecuting journalists for publishing leaked information.

All in the name of national security, the hammer of choice.

The real threat to national security is a government operating in secret and accountable to no one, with watchdogs that are too willing to muzzle themselves…

What’s missing in the dark and ever-expanding world of drone warfare is a big helping of accountability, served up in the bright light of day.

So did we get that big helping of accountability during the February 7 hearing for John Brennan, who had served as CIA station chief in Saudi Arabia when US boots were all over Saudi ground and was reportedly behind the plan to establish a drone base there?

Hardly. Brennan – the architect of the Administration’s drone policy – insisted that lethal force was only used when "there is no other alternative." He has apparently convinced Dianne Feinstein that the number of civilians killed in drone strikes each year has been “in the single digits” – a figure dramatically out of line with the conservative estimate of the New American Foundation (which adopts the government definition of a "militant" as any young man of military age in a strike zone) and the higher civilian statistics put forward by the Bureau of Investigative Journalism.

When pressed repeatedly to do so, Brennan – who served as deputy executive director of the CIA during the years of the Bush program of ‘enhanced interrogations’ – refused to call waterboarding torture. He also said at the time he knew nothing about the CIA’s interrogation methods and that they had nothing to do with him.

As he put it, "I had some visibility into some of the activities there. But I was not part of any type of management structure or aware of most of the details."

He gave this convoluted answer when asked if he thought more information should be disclosed about the 'targeted killing' program:

"What we need to do is optimize transparency on these issues, but at the same time, optimize secrecy and the protection of our national security."

And optimize obfuscation.

The drone program is poised to expand in Afghanistan as US troops withdraw, and potentially in the Sahara.

Dianne Feinstein, other law makers and some White House officials are now mulling over the establishment of what Fox News calls a secret "assassination court" to sign off on the executive branch's killing of Americans. Brennan called the idea "worthy of discussion" and the notion of setting up another secret court similar to the Foreign Intelligence Surveillance Court (FISC) is reportedly gaining traction.

For years the FISC, which was set up by the 1978 Foreign Intelligence Surveillance Act to review wiretapping requests in spying and international terrorism cases without a showing of 'probable cause' as the Fourth Amendment requires, largely served as a rubber stamp for the executive branch. And since the passage of the FISA Amendments Act, it issues "blanket" warrants which stretch the Fourth Amendment out of recognition and are similar to the "writs of assistance" so hated by American colonists, according to Rep. Ron Wyden.

The FISC may not provide the robust checks and balances required by the Constitution, but that has not bothered Congress. And at least eleven federal judges are in some kind of a loop – however notional – when it comes to making a wiretap decision. When it comes to deciding what Americans to put on a kill list and execute, judges are entirely absent. And so is the US Constitution.

On February 5, a day after the Justice Department released the "white paper" summarizing the government’s legal justification, the ACLU was back in federal court, making the case that the targeted killing of Americans is unconstitutional on a number of grounds.

In AlAulaqi v. Panetta, the ACLU argued on behalf of the fathers of Anwar Al-Aulaqi (or Awlaki) and Samir Khan that the drone strikes that killed them and Al-Aulaqi’s teenage son violated the Constitution’s fundamental guarantee against the deprivation of life without due process of law.

The government has sought to have the case dismissed on the grounds that the judiciary has nothing to do with the executive branch’s decision to kill Americans who are terrorist suspects – a position which the ACLU calls both "exceedingly dangerous" and "wrong."

"Under our Constitutional system," the ACLU asserts, "the right to life is not entrusted to the Executive alone." It then demonstrates that the government’s resort to lethal force when an individual does not pose a concrete and imminent threat of deadly harm violates the legal interpretation of a "seizure" under the Fourth Amendment. It also violates the prohibition placed by the Fifth Amendment on the deprivation of life without due process, and the Constitution's Bill of Attainder clause (Article 1, section 9), barring legislative acts that find a person or group guilty of a capital crime (usually treason) without the benefit of a trial.

In the words of the ACLU,

Outside the context of armed conflict, lethal force may be used only as a last resort to counter an imminent threat of grave harm. The killings of the plaintiffs' sons and 16-year-old grandson – all American citizens – violated this standard, in part because officials have defined the term ‘imminent’ so broadly as to negate its plain meaning…

Federal officials cannot impose an extrajudicial death sentence on the ground that a citizen presented a threat in the past or might present one in some unspecified future.

If the US District Court for the District of Columbia agrees with the government and dismisses the case, the Constitution will have suffered a major blow.

The Court of Appeals for the Second Circuit will inflict another blow on the Constitution if it reverses federal Judge Katherine Forrest’s ruling that the language of the indefinite detention provision – 1021(b)(2) – of the 2012 National Defense Authorization Act is unconstitutionally broad and a threat to Americans’ First and Fifth Amendment rights.

On February 6, a three-judge panel of the appeals court heard oral arguments in a crowded Manhattan courtroom in the case Hedges v. Obama. The Obama Administration and a lawyer representing Republican Senators Kelly Ayotte, Lindsey Graham and John McCain claim that Chris Hedges, Noam Chomsky and the other plaintiffs in the case have no reason to fear for their rights since the provision of the law does not apply to them.

Matt Sledge wrote in the Huffington Post:

In an unusual move, Carl Mayer, an attorney for the plaintiffs, ‘dedicated’ his arguments to the descendants of Fred Korematsu and other Japanese-Americans who were detained during World War II. The lessons from their experience, combined with the NDAA's language about indefinite detention, he said, were enough to give his clients pause before expressing their free speech rights. Mayer highlighted in particular the government's failure at trial to simply state that Hedges and others could not be detained under the NDAA.

In its appeal of Judge Forrest’s injunction against NDAA provision 1021(b)(2), the government argued that her ruling violated the Constitution’s separation of powers, because it challenges the President’s constitutional authority as Commander-in-Chief in a time of war.

As the ‘time of war’ lengthens into a 'forever war,' it is likely that the Constitution will be continually invoked, even as it is steadily undermined. What we are unlikely to achieve – unless we stand up and loudly demand it – is that crucially important “big helping of accountability, served up in the bright light of day.”

© 2021 ACLU of Massachusetts.