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

Pressure from the United Patriots Front Stops Mosque Plan
2016-04-28 20:10
Pressure from the United Patriots Front appears to have killed off a mosque development in Narre Warren North. The City of Casey council now looks likely to withhold planning approval for the development in a special meeting set for Tuesday night. A council report, to be considered by councillors on Tuesday, recommends that the approval be blocked. The mosque opponents’ cause has been helped by councillor ...
Police face questions over the influence of the Freemasons
2016-04-28 20:48
South Yorkshire Police today face questions over whether powerful 'secret society' the Freemasons held sway over the force at the time of Hillsborough. Families of victims say that officers who were Masons were promoted into powerful positions despite being ill-equipped, including match commander David Duckenfield. Duckenfield told the fresh inquests he had been a Freemason since 1975 and became head of his ...
England Bans its Own Flag to Avoid Offending Muslims
2016-04-27 2:23
St. George's Cross "racist" towards immigrants Government officials said their city was ‘too multicultural’ to celebrate St George’s Day, England’s version of the 4th of July. The council said that displaying the English flag may have been seen as “racist” towards immigrants.
Half of Western European men descended from one Bronze Age ‘king’
2016-04-27 2:09
Half of Western European men are descended from one Bronze Age ‘king’ who sired a dynasty of elite nobles which spread throughout Europe, a new study has shown. The monarch, who lived around 4,000 years ago, is likely to have been one of the earliest chieftains to take power in the continent. He was part of a new order which emerged in ...
"Local Residents" Are Filmed Stealing Dozens of Bottles of Water at London Marathon Stop
2016-04-25 23:10
Editor's Comment: "Local" residents? Why bother blurring their faces? We know who they are. ... London marathon runners were robbed of dozens of bottled waters when thieves raided a refreshment area armed with trolleys during today's race. Nearby residents - including parents with children - were captured on camera piling up crates of free water handed out by volunteers during the 26-mile event. Marathon ...
More News »