Making Tyranny ‘Legal’
2013 07 11

By Peter Casey | AntiWar

The more corrupt the state, the more numerous the laws. ~ Tacitus

Since the Guardian’s publication of the "telephone metadata" order, courtesy of Edward Snowden, the law professoriate et al. have been speculating about a Foreign Intelligence Surveillance Court’s "secret" opinion that would explain the seemingly inexplicable – how the National Security Agency legally can obtain in real time a record of every single telephone call made to, from and within the United States of America?

Days after the June 5 story, the American Civil Liberties Union filed a motion asking the Foreign Intelligence Security Act (FISA) court to unseal the secret "legal interpretations" underlying the order. The ACLU argued that publication of the court’s interpretation of Section 215 of the PATRIOT Act, the "business records" statute cited by the order for its authority, "would benefit the public interest immensely" and permit it "to more fully understand the order’s meaning and to contribute to the ongoing debate."

So far, the secret opinion has remained secret – although the Washington Post has hinted that it has seen an opinion, issued on May 24, 2006, in which "the [FISA] court ruled it would define the relevant business records as the entirety of a telephone company’s call database." The two-page order itself made that obvious.

The ACLU’s motion tweaks the FISA court a bit. "Secret legal opinions" are secret for a reason. Their arguments would make Roy Cohn blush. The President or other executive branch official who asks for a secret legal opinion is not looking for honest legal guidance. He wants justification for a predetermined course of action – and to provide legal cover in the remote chance he’s indicted and wants to argue as an excuse that he "relied on advice of counsel."

Some recent secret legal opinions have been gems. When Dick Cheney needed a legal opinion that the President could wage war anywhere at any time, he turned to John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel. Yoo set out to oblige, but ran into a problem. He discovered that the Constitution grants "power to declare war" to Congress. Because saying no to Cheney was not an option, Yoo came up with a simple solution: the Constitutional Convention didn’t really mean it! "[T]he Framing generation," Yoo wrote in his secret memo, "well understood that declarations of war were obsolete." According to Yoo, the "Framing generation" granted Congress a ceremonial sop to quiet those at the Convention whining about checks and balances. Although it says no such thing, the Constitution empowers the President to "make" any war he pleases, Yoo reasoned. Problem solved.

More recently, President Obama needed a legal memo that would sanction the killing of fellow Americans without any courts or other obstacles. On his (then still secret) death list, Obama had penciled in the al-Qa’ida cleric and rabble rouser Anwar al-Awlaki, a US citizen living in Yemen with his family. Because al-Awlaki was American, the President (Harvard law grad and a constitutional law professor) had to consider the technicality that prohibits "deprivation of life" without "due process of law." So he ordered two of Yoo’s successors at "OLC" to explain why extrajudicial homicide of Americans was OK. They duly produced a secret white paper, which justified Obama’s plan based on the uncontroversial proposition that every nation has the right to defend itself from "imminent threat of violent attack." Like Yoo and the war power clause, however, the OLC lawyers had to find a way around "imminent threat," since the purpose of Obama’s hit list to kill people who weren’t. As the "white paper" droned on, "imminent attack" underwent a metamorphosis to a "broader concept of imminence," eventually emerging from its legal cocoon to mean, in essence, a threat of "attack sometime in the future, maybe."

[...]

Read the full article at: antiwar.com



Related Articles
Let’s Be Clear, say Legal Experts, NSA Surveillance Dragnets Are ’Criminal’
The legalities of the House-to-House manhunt - "Reasonable"?
"‘Illegal we do immediately; unconstitutional takes a little longer": Kissinger in new mass WikiLeaks document release
Senators ask Obama for legal basis for targeted killings of Americans
War Crimes: Initiating a Legal Procedure against the Perpetrators of 9/11


Latest News from our Front Page

Ingraham to Zuckerberg: Time for Open Borders at Your Mansion
2014 09 19
Talk radio host Laura Ingraham re-iterated her challenge to debate Facebook co-founder and CEO Mark Zuckerberg and criticized him for securing his property while demanding the US allow illegal immigrants to remain in the country on Monday. “In the end, borders work for these guys. Right, I would not want to be on [Facebook board member] Marc Andreesen’s household staff if ...
MasterCard tests Orwellian national ID card on Nigeria
2014 09 19
The march toward enslaving the world’s population by a handful of globalist statists and corporations continues, with the latest chapter unfolding, of all places, in Nigeria, compliments of MasterCard. According to the website GovtSlaves.info, the credit card giant is rolling out a card in Africa’s most populous country that has the ability to retain all personal, health insurance, tax payment and ...
Doctor: Gov’t ‘Tight-Lipped’ on Respiratory Virus, May Be From Illegals
2014 09 19
Dr. Jane Orient, Executive Director of the Association of American Physicians and Surgeons, reported that the government has been “real tight-lipped” about the mysterious respiratory illness that has struck children in the United States, expressed concern that the illegal immigrant minors from Central America could be the source, and argued that the government should devote more resources to border security ...
Breaking—CDC whistleblower: “I’ve stopped lying”
2014 09 18
Explosive…explosive…explosive… What more could anyone want in the way of evidence for an ongoing crime? There is a video posted at the autism media channel/YouTube, and at Age of Autism: “William Thompson’s call to Congress.” It is a recording of a telephone call between CDC whistleblower Thompson and Brian Hooker, PhD. No date is given. Presumably, the call was recorded before August 27, when ...
Ebola patients buying survivors’ blood from black market, WHO warns
2014 09 18
As hospitals in nations hardest hit by Ebola struggle to keep up, desperate patients are turning to the black market to buy blood from survivors of the virus, the World Health Organization warned. The deadliest Ebola outbreak in history has killed at least 2,400 people in Guinea, Liberia and Sierra Leone -- the countries most affected by the virus. Thousands more are ...
More News »