“…it would be good to know under what circumstances the White House thinks it can kill Americans without a trial.”

If Rip Van Winkle awoke just yesterday, he might be dumbfounded at the above sentence. To Americans in the Obama-era, it is an all too relatable assertion.

The sentence comes from The New Yorker‘s Amy Davidson and she is referring to the court decision this week that ordered the Obama administration to release the legal memo that authorized targeting an American citizen, Anwar al-Awlaki, for assassination.

In it’s decision, the court made clear that this does ”not challenge the lawfulness of drone attacks or targeted killings.” Instead, as Davidson sardonically puts it, the decision establishes that, “We get to know what the law is.”

The case is important, first, because it would be good to know under what circumstances the White House thinks it can kill Americans without a trial. More than that, the decision turns on what has become, especially after Edward Snowden’s leak of N.S.A. documents, the crucial point in the debate over civil liberties and security: the government gets to have secrets, but it doesn’t get to have secret laws.

…More than a year after the Awlakis were killed—and after a lower-court judge upheld the government’s denial of the F.O.I.A. request for the memo—Michael Isikoff, of NBC, obtained a Department of Justice white paper on targeted killings. This was a sort of Cliff’s Notes for the secret O.L.C. memo, sixteen pages long and deeply unsatisfying. It used words like “imminent threat” in ways that were jarringly vague. On its own, the white paper suggested that the President could decide that an American living abroad was frightening, and that would be enough for a death sentence—it would count as due process if the President duly processed the question in his own mind, taking time to think it through.

…We get to know what the law is. The most important single revelation in the Snowden papers has been that, too often, we did not. There were secret surveillance-court decisions that interpreted statutes in ways that defied the plain meaning of English words like “collected” and “targeted.” Targeted listening, targeted killing—we need to know, when the government talks and directs and justifies, just what it thinks it is saying.

As I wrote in The American Conservative last year, the Obama administration has excelled in “vastly increasing the government’s use of secret laws and secret interpretations of known laws.” To the extent that this court decision puts a check on that dangerous expansion of power (the government may still appeal), this decision is a success.

With any luck, the decision will put pressure on the administration to reign in its drone war in general. As Rosa Brooks, Professor of Law at Georgetown University Law Center told Congress last year, “When a government claims for itself the unreviewable power to kill anyone, anywhere on earth, at any time, based on secret criteria and secret information discussed in a secret process by largely unnamed individuals, it undermines the rule of law.”

Abdullah Muhammad al-Tisi holds a photo of his son, who was killed in a US drone strike in December. Credit: Human Rights Watch

Abdullah Muhammad al-Tisi holds a photo of his son, who was killed in a US drone strike in December. Credit: Human Rights Watch

At least 35 people were killed in Yemen over the weekend in a series of U.S. drone strikes. As usual, government authorities claim those targeted and killed were al-Qaeda members. At least three civilians were confirmed to have been killed, but the true number is unknown because the Obama administration insists on keeping that information secret despite the fact that a United Nations investigator in March said that the U.S. is legally obligated to investigate and report such information.

This is the most high-profile series of strikes since last December, when the U.S. bombed a Yemeni wedding party, killing 12 people and injuring 15, including the bride. Human Rights Watch said the massacre may have violated international law. Actually, both Human Rights Watch and Amnesty International concluded in separate investigations last October that the U.S. had violated international laws of war and international humanitarian law in its drone war.

So again, questions arise over the counterproductive nature of the drone program. McClatchy reiterates what many have been saying since the beginning of the Obama administration (emphasis mine):

“We’ve told the Americans that they’ve been going about things the wrong way,” the high-ranking Yemeni military official said last week, speaking only on the condition of anonymity because of the sensitivity of the topic. “When it comes to the current drone policy, there have been too many mistakes.”

…The strikes have long been controversial here _ many Yemenis view them as violating their nation’s sovereignty _ and popular opposition has only grown in the two years since the start of Hadi’s presidency. While American and Yemeni officials have defended them as key tools in the battle against AQAP, their frequency has left many Yemenis aghast. Local political analysts and tribal leaders in the provinces where they occur most often argue that the telltale buzz that precedes them terrorizes the local population, spurring many to sympathize with al Qaida.

After a September 2012 drone strike in Yemen that killed 13 civilians, including three women, a Yemeni activist named Nasr Abdullah told CNN, “I would not be surprised if a hundred tribesmen joined the lines of al Qaeda as a result of the latest drone mistake. This part of Yemen takes revenge very seriously.”

“Just six days ago, my village was struck by a drone, in an attack that terrified thousands of simple, poor farmers,” Yemeni activist Farea Al-Muslimi told the Senate Judiciary Committee last year.

“What radicals had previously failed to achieve in my village,” al-Muslimi said, “one drone strike accomplished in an instant: there is now an intense anger and growing hatred of America,” adding that he has ”seen Al Qaeda in the Arabian Peninsula use U.S. strikes to promote its agenda and try to recruit more terrorists.”

The December bombing of the Yemeni wedding party prompted the Yemeni Parliament to vote unanimously for a stop to drone strikes. This would seem to prohibit further U.S. strikes, based on what UN investigator Ben Emmerson said about U.S. drone strikes violating Pakistani sovereignty without express consent of the government.

But the U.S. helped install Yemen’s current dictator and they’ll be damned if the parliament presumes to have a say in the matter.

I continue to be baffled by the belief in Washington that we can bomb a country illegally, kill and terrorize a population that is already living under a U.S.-installed dictatorship, and not generate the kind of hatred that takes the form of violent attacks against America.

W

According to Stephen Aftergood at Secrecy News, a new intelligence directive forbids any official from talking with the media and threatens “termination of employment” or “criminal prosecution” for any violators.

The Director of National Intelligence has forbidden most intelligence community employees from discussing “intelligence-related information” with a reporter unless they have specific authorization to do so, according to an Intelligence Community Directive that was issued last month.

“IC employees… must obtain authorization for contacts with the media” on intelligence-related matters, and “must also report… unplanned or unintentional contact with the media on covered matters,” the Directive stated.

The new Directive reflects — and escalates — tensions between the government and the press over leaks of classified information. It is intended “to mitigate risks of unauthorized disclosures of intelligence-related matters that may result from such contacts.”

…If an employee’s contact with the media involves an unauthorized disclosure of classified information, then he could be subject to criminal prosecution. But even if classified information were not communicated to the reporter, the Directive indicates, violation of the new policy “at a minimum… will be handled in the same manner as a security violation.”

“IC employees who are found to be in violation of this IC policy may be subject to administrative actions that may include revocation of security clearance or termination of employment,” the Directive states.

In the aftermath of Snowden’s leaks, this is an assertive attempt to crack down on leakers and enforce absolutely secrecy. It reminds one of the Obama administration’s government-wide crack down on talking to the media, dubbed the “Insider Threat Program.”

McClatchy:

Even before a former U.S. intelligence contractor exposed the secret collection of Americans’ phone records, the Obama administration was pressing a government-wide crackdown on security threats that requires federal employees to keep closer tabs on their co-workers and exhorts managers to punish those who fail to report their suspicions.

President Barack Obama’s unprecedented initiative, known as the Insider Threat Program, is sweeping in its reach. It has received scant public attention even though it extends beyond the U.S. national security bureaucracies to most federal departments and agencies nationwide, including the Peace Corps, the Social Security Administration and the Education and Agriculture departments. It emphasizes leaks of classified material, but catchall definitions of “insider threat” give agencies latitude to pursue and penalize a range of other conduct.

A report by the Committee to Protect Journalists found that Obama’s crack down has government sources “scared to death” and journalists facing a lack of information.

“The administration’s war on leaks and other efforts to control information are the most aggressive I’ve seen since the Nixon administration,” said Leonard Downie Jr., author of the report and editor at The Washington Post at the time of the Watergate scandal. “The 30 experienced Washington journalists at a variety of news organizations whom I interviewed for this report could not remember any precedent,” he told McClatchy.

About two years remain in the Obama administration. It is reasonable to expect it will continue to hold the record for the most people prosecuted under Espionage Act, but many of the legal and procedural aspects of the Obama administration’s extreme secrecy are likely to blend into the next administration. Unfortunately, it looks like the most aggressively secret administration since Nixon is devising a new normal.

Spencer Ackerman has a great piece up at the Guardian exploring what is likely to happen to the government’s legal justification for holding people under indefinite detention at Guantanamo Bay once the U.S.’s combat operations in Afghanistan are over in December. The detention system exercised by the Bush and Obama administration, according to Ackerman, “may grow legally tenuous after December.”

Notably, numerous human rights groups intend to challenge the Gitmo system anew after December:

“US courts might go further. Once there is no battlefield, what ‘war’ is left?” said Andrea Prasow of Human Rights Watch.

“I’m not confident that federal judges will continue to authorize detention even for people allegedly associated with al-Qaida, and less so for those amorphous ‘associated forces’. And I don’t think the Obama administration is [confident], either.”

Wells Dixon of the Center for Constitutional Rights said his organization intended to bring lawsuits after December for the release of Guantánamo’s Afghans and Yemenis whom the Defense Department no longer believes pose an ongoing security threat.

“It’s classic arbitrary detention, which will be brought into starker relief as we get closer to the end of combat operations in Afghanistan. So we anticipate filing motions for release on behalf of these cleared detainees,” Dixon said.

Post-9/11, the justification for locking people up indefinitely without charge or trial has come from the 2001 Authorization for the Use of Military Force (AUMF). Despite the fact that Obama has publicly announced his desire to repeal the AUMF, the administration continues to rely on the AUMF to justify indefinite detention for a remaining 154 detainees at Gitmo and another 50 or so under U.S. detention in Afghanistan. And once (if?) the AUMF is repealed, Obama has a back up plan:

Effectively, the AUMF unties wartime operations, including detention, from a time or a place and hinges them on membership or association with al-Qaida. In a speech in May 2013, Obama announced his intention to “ultimately repeal” its mandate, although tangible progress toward that goal is difficult to discern.

Caitlin Hayden, a spokeswoman for the National Security Council, pointed to both the AUMF and Congress’s defense authorization for the 2012 fiscal year as providing the necessary authorities for future detentions, while noting Obama’s desire to repeal the AUMF.

Ah, yes, that dastardly NDAA provision that grants the state the power to indefinitely detain individuals, including U.S. citizens, suspected of allying with or supporting “terrorists.” While Gitmo is still thought of as a legacy of George W. Bush, I suspect the indefinite detention provisions in NDAA will go down as one of the most notorious Obama legacies.

In late 2012, Judge Katherine B. Forrest blocked the government from enforcing the NDAA provision on grounds that they violate Constitutionally guaranteed rights to due process. She concluded that the NDAA law appears to permit the President “to use all necessary force against anyone he deems involved in activities supporting enemy combatants, and therefore criminal laws and due process are suspended for any acts falling within the broad purview of what might constitute ‘substantially’ or ‘directly supporting’ terrorist organizations. If this is what Congress in fact intended,” she said, there is “no doubt it goes too far.”

In response, the Obama administration immediately appealed Forrest’s ruling, asking for an “immediate stay,” or suspension of the case’s proceedings. When Forrest denied the request, the government went to the Second U.S. Court of Appeals in Manhattan and asked another judge for an emergency stay, which Judge Raymond J. Lohier granted.

President Obama has always slyly tip-toed around the issue of indefinite detention. His alleged attempt to shut down Gitmo in his first term was a poor effort and, even if successful, would only have been symbolic since his intention was to move the whole system of indefinite detention to American soil. Now he says he wants to shut Gitmo and repeal the AUMF, but is scheming to maintain (and even expand) the War on Terror-type justifications for indefinite detention and suspension of due process rights. The posturing has always been disingenuous. To me, though, it looks like it may just be successful.

Charles Goyette talks with Ron Paul on their weekly podcast about cattle rustlers, cowboys on horseback, and the Nevada showdown with the BLM. Violence has been averted… for now. But what happens next?

And a special conversation with Pat Buchanan who has long been warning about the dangers of expanding NATO to Moscow’s’ front door. It is policy now beginning to bear grim consequences. Buchanan talks about the showdown in Ukraine and the danger of the security guarantees America has given around the globe.

Download MP3 here.

Charles Goyette is New York Times Bestselling Author of The Dollar Meltdown and Red and Blue and Broke All Over: Restoring America’s Free Economy. Check out Goyette and Paul’s national radio commentary: Ron Paul’s America and the Ron Paul and Charles Goyette Weekly Podcast. Goyette also edits The Freedom and Prosperity Letter.

The people being targeted in the Obama administration’s drone war are “suspects” who deserve due process, renowned linguist and political radical Noam Chomsky said during a talk at Google this month.

There’s a debate in the United States, Chomsky said, about the legitimacy of President Obama unilaterally targeting American citizens, like Anwar al-Awlaki, for assassination by drone. And “there’s some talk about collateral damage – you know, what about the people that are just standing around that get killed? Well, yeah, that’s bad. But what about the people you’re aiming at? They’re suspects.”

“The core concept developed in the Magna Carta was what we call ‘presumption of innocence,’” Chomsky explained. “What it stated is that a free man cannot be subjected to state punishment without due process, without trial by a jury of peers.”

“The drone campaign eliminates presumption of innocence,” Chomsky argued. “The way it works is, Obama and his advisers get together Tuesday morning and decide who they’re going to kill that day – the concept ‘guilty’ means, ‘Obama decided to murder you.’”

The fundamental question, according to Chomsky is: “Why should the state have the right to determine unilaterally who is a terrorist? Do they have that right? No, they don’t. Do they have the right to murder people who they put on the terrorist list? No, they don’t.”

Chomsky also mentioned the suit he and several others are involved in that challenges the National Defense Authorization Act (NDAA), which includes provisions that “extend the principle of indefinite detention of suspects…and it is written in such a way that it could include American citizens, [although] it’s not explicit.”

Chomsky said he thinks the case is actually “way too narrow,” since it focuses only on the question of whether this principle of indefinite detention for suspects extends to U.S. citizens.

“There should never be such a thing as indefinite detention. It’s criminal. And the idea of supporting enemies is so meaningless that such a concept shouldn’t exist in law.”

You can view this section of the talk below:

Anthony Gregory wrote a wonderful book on this subject called The Power of Habeas Corpus in America: From the King’s Prerogative to the War on TerrorDavid S. D’Amato wrote an excellent review for the Future of Freedom Foundation here.