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

Roswell, UFOs and Project Pandora
2014 07 23
Well, now, this is interesting. In fact, it’s very interesting. Over at the Department of Defense’s website you can find a file that has been declassified via the Freedom of Information Act on the subject of Project Pandora (which, to a significant degree, was focused on Cold War secrets, and how microwaves can affect the mind and body). It’s a fascinating ...
Men of Europe, Put Down the Eckhart Tolle Book and Pick up Your Sword
2014 07 23
Remember who you really are... The New Age Tactical Spiritual Military Industrial Complex supports murder and genocide. What is happening in Gaza today will eventually take place in London, Dublin, New York, Lisbon, Barcelona, Oslo, Glasgow, Melbourne, Stockholm, Auckland and Cape Town and wherever you are reading this article. Notice is being served upon all humanity. Not just the people of ...
Study Challenges Hypothesis that Birds Evolved from Dinosaurs
2014 07 23
The re-examination of Scansoriopteryx – a sparrow-sized, pre-Archaeopteryx, bird-like creature that lived in what is today China during the Jurassic period, about 154 million years ago – challenges the widely accepted hypothesis that birds are derived from land-dwelling dinosaurs that gained the ability to fly. Unearthed in Inner Mongolia in 2002, Scansoriopteryx was previously classified as a theropod dinosaur, from which ...
Israeli Professor: Rape Hamas Militants’ Mothers and Sisters to Deter Terrorist Attacks
2014 07 23
An Israeli academic has claimed that raping wives and mothers of Palestinian Hamas militants is the only thing that could deter further terrorist attacks. The remarks by renowned Middle East scholar Mordechai Kedar of Bar-Ilan University were made three weeks ago after the grim discovery of the bodies of the three kidnapped Israeli teenagers, but the recording was published online (in ...
’Mysterious plane’ with no callsign spotted circling London for two hours
2014 07 23
Scotland Yard has declined to comment on reports of a mysterious eavesdropping spyplane circling London. A radar tracking website showed an aircraft orbiting London at 10,000 feet for more than two hours. The plane had no recognisable callsign but was identified as a twin-engine Cessna F406 with the registration G-BVJT. The aircraft has been linked in the past to a shadowy fleet of ...
More News »