Making Tyranny ‘Legal’
2013-07-11 0:00

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

Pro-Israel bias: BBC admits editorial breach in interview with Israeli defense chief
2015-05-23 7:58
The BBC has reached a “provisional finding” to uphold complaints made by Palestinian activists that the broadcaster breached its editorial guidelines in a “soft” interview with the Israeli defense minister. Complaints focused on BBC journalist Sarah Montague’s alleged failure to challenge controversial claims made by Israeli Defense Minister Moshe Ya’alon. Journalist Amena Saleem, who works with the Palestine Solidarity Campaign (PSC), wrote ...
41% of Americans Support Criminalizing "Hate Speech"
2015-05-23 7:31
The following are from a recent poll about what some are calling on for "hate speech" 1. Support for Hate Crimes Legislation Do you support or oppose the federal law that requires increased penalties for hate crimes committed on the basis of the actual or perceived race, color, religion, national origin, ethnicity, or gender of any person? 2. Support for Expanding Hate Crimes Do ...
FBI Admits No Major Cases Cracked with Patriot Act Snooping Powers
2015-05-23 7:36
FBI agents can’t point to any major terrorism cases they’ve cracked thanks to the key snooping powers in the Patriot Act, the Justice Department’s inspector general said in a report Thursday that could complicate efforts to keep key parts of the law operating. Inspector General Michael E. Horowitz said that between 2004 and 2009, the FBI tripled its use of bulk ...
Sweetener Stevia Was Once Hailed As An Anti-Fertility Agent for Population Reduction
2015-05-23 7:13
Maybe it's not so sweet now... If you've thought stevia, the natural alternative to sugar and artificial sweetners with aspartame, et al., is too good to be true, there may be a catch. Check out this textbook written in 1970 by Paul and Anne Ehrlich, the precursor to the textbook Ecoscience they wrote with Obama Science Czar John P. Holdren ...
TPP Aproved: Senate Republicans Give Obama New Powers - Details Remain 'Classified'
2015-05-23 6:43
President Obama won a big victory for his trade agenda Friday with the Senate’s approval of fast-track legislation that could make it easier for him to complete a wide-ranging trade deal that would include 11 Pacific Rim nations. A coalition of 48 Senate Republicans and 14 Democrats voted for Trade Promotion Authority late Friday, sending the legislation to a difficult fight ...
More News »