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

Germanwings co-pilot appears to have crashed plane deliberately – prosecutor
2015-03-26 18:08
The Germanwings co-pilot seemed to have crashed the plane deliberately, killing 150 people on board. The co-pilot wouldn’t let the captain inside the cabin, with the “intension to destroy” the jet, the French prosecutor said at a press conference. Follow RT’s live updates on investigation into Germanwings plane crash The Germanwings co-pilot was identified as Andreas Lubitz. The captain was between 30 ...
Sweden adds gender-neutral pronoun to dictionary
2015-03-25 19:38
The official dictionary of the Swedish language will introduce a gender-neutral pronoun in April, editors at the Swedish Academy have announced. “Hen” will be added to “han” (he) and “hon” (she) as one of 13,000 new words in the latest edition of the Swedish Academy’s SAOL. The pronoun is used to refer to a person without revealing their gender – either because ...
Unchecked government drones? Not over my backyard
2015-03-25 0:27
On last Thursday, the Federal Aviation Administration gave Amazon the green light to begin testing drones. While you aren’t likely to be getting your Amazon order delivered by drone anytime soon, as the approval is limited to research and testing, the fact remains that this technology is already part of our lives. Drones are already helping the federal government observe and ...
Finland schools: Subjects scrapped and replaced with 'topics' as country reforms its education system
2015-03-25 0:46
For years, Finland has been the by-word for a successful education system, perched at the top of international league tables for literacy and numeracy. Only far eastern countries such as Singapore and China outperform the Nordic nation in the influential Programme for International Student Assessment (PISA) rankings. Politicians and education experts from around the world – including the UK – have ...
German Airbus crashes in French Alps with 150 dead, black box found
2015-03-25 0:25
An Airbus operated by Lufthansa's Germanwings budget airline crashed into a mountainside in the French Alps on Tuesday, killing all 150 people on board including 16 schoolchildren. Germanwings confirmed its flight 4U 9525 from Barcelona to Duesseldorf went down with 144 passengers and six crew on board. One of the plane's black box recorders has been found at the crash site, about ...
More News »