Drone Lawyer: Kill a 16 Year-Old, Get a Promotion

[Magda Hassan]

Published on Friday, May 16, 2014 by Common Dreams

Drone Lawyer: Kill a 16 Year-Old, Get a Promotion

by Medea Benjamin

If you think that as a United States citizen you're entitled to a trial by jury before the government can decide to kill you you're wrong. During his stint as a lawyer at the Department of Justice, David Barron was able to manipulate constitutional law so as to legally justify killing American citizens with drone strikes. If you're wondering what the justification for that is, that's just too bad the legal memos are classified. Sounds a little suspicious, doesn't it? What's even more suspicious is that now the Obama Administration wants to appoint the lawyer who wrote that legal memos to become a high-ranking judge for life.During his stint as a lawyer at the Department of Justice, David Barron was able to manipulate constitutional law so as to legally justify killing American citizens with drone strikes.
Disturbingly, this is not the first time that the president has rewarded a high-level lawyer for paving the legal way for drone strike assassinations. Jeh Johnson, former lawyer at the Department of Defense, penned the memos that give the "okay" to target non-US citizen foreign combatants with drones. His reward? He's now the Secretary of the Department of Homeland Security. These Obama nominations are eerily reminiscent of the Bush-era appointment of torture memo author Jay Bybee to a lifetime position of a federal judge.
Barron, a Harvard law professor and former legal counsel at the Department of Justice, was recently nominated by President Obama to the lifetime position of a judge on the First Circuit Court of Appealsjust one step below the Supreme Court. While at the Department of Justice, Barron wrote at least 2 secret legal memos justifying the use of lethal drones to kill Americans suspected of involvement in terrorist activities.
Should someone who has done such immense damage to the rule of law and our moral sensibilities be awarded with a judgeship on the First Circuit Court?
The Attorney General has conceded that four Americans located outside the United States have been killed by drone strikes since 2011. One of those killed was Anwar Al-Awlaki, who was attacked while in a tribal region of Yemen in September 2011. Then Al-Awlaki's 16-year-old son Abdulrahman, also an American citizen, was shamefully killed in a drone strike in rural Yemen two weeks later.
Call me old-fashioned, but I believe that Americans suspected of committing crimes deserve to have charges brought against them, to have a chance to surrender or be captured, and to be given a fair trial. If they cannot be captured and refuse to surrender, they could be tried in absentia. But Barron helped set a terrible precedent that American citizens have no right to a judicial processsomething that human rights advocates around the world have been fighting for since the signing of the Magna Carta 800 years ago.
How can Barron be a judge if he does not understand the deeply valued laws of our land, laws that include habeas corpus and the right to a fair trial? As stated in the Bill of Rights: the Fourth Amendment guarantees that a person cannot be seized by the government unreasonably, and the Fifth Amendment guarantees that the government may not deprive a person of life without due process of law. A judge is supposed to uphold the Constitution, yet Barron has already torn it down.
In an op-ed supporting Barron's nomination, law professors Charles Fried and Laurence Tribe argue that Barron didn't order the strikes or design the legal framework for their authorization. Certainly he didn't order the strikes, but his job as acting head of the Office of Legal Counsel was precisely to provide legal opinions to the President, opinions that became the legal foundation on which the strikes were based.
Some Senators said they would not proceed with Barron's nomination until they got access to the memos he has written about drone strikes. "This nomination cannot go forward unless this body every member of this body is given access to any and all secret legal opinions this nominee wrote on this critical issue," Grassley said. The White House responded by allowing all interested Senators to go to a secret chamber to read "all written legal advice issued by Mr. Barron regarding the potential use of lethal force against US citizens in counterterrorism operations." This pretense of transparency is meaningless, though, because Senators won't be able to publicly question and challenge Barron about the memos unless they are declassified.
That's why some senators, including Democrat Mark Udall and Republican Rand Paul, are insisting that the memos be made public. That's all well and good, since wethe publiccertainly should have the right to read them. It makes no sense for legal memos to be considered secret national security documents. Even the courts have said as much, when a federal judge in April 2014 ordered the administration to release the legal analysis to the public (an order the administration has so far ignored).
But the Senators should go further and state that David Barron is simply not fit to sit on the bench to interpret our Constitution.
In the hopes of moving our nation back to one that respects, honors and upholds the rule of law, we are pushing the Senateparticularly Majority Leader Harry Reidto kill Barron's nomination. Senator Rand Paul is one of the few Senators challenging Barron's nomination. "I can't imagine appointing someone to the federal bench, one level below the Supreme Court, without fully understanding that person's views concerning the extrajudicial killing of American citizens," he wrote.
Unfortunately, now that the administration has placated Senators by giving them access to Barron's memos, he will most likely be be confirmed. There is one good thing that could come out of this, though the sparking of a much-needed national conversation about drone warfare and U.S. policy on the use of killer drones. Does the use of drone strikes that often hit innocent people and incite hatred towards Americans actually ensure our safety, or trigger greater danger? In the meantime, we should urge our Senators to push for the public release of these classified drone memos and should oppose the appointment of David Barron. We don't need a judge on the bench who has already shown his disregard for the Constitution and for the rights of American citizens. Tell your Senator to vote "no" for drone lawyer David Barron.
https://www.commondreams.org/view/2014/05/16

[Drew Phipps]

From news 6/23/14:

http://www.huffingtonpost.com/2014/06/23...d%3D492021

Drone Memo Approving Killing Of Anwar al-Awlaki Released

A federal court released on Monday a Justice Department memorandum justifying the drone killing of Anwar al-Awlaki, but government redactions still left large swathes of the reasoning behind the operation unrevealed. Awlaki, an American citizen who allegedly rose to become a senior member of al Qaeda's Yemen branch, was killed in a September 2011 drone strike carried out by the CIA. Journalists, human rights activists and members of Congress like Sen. Rand Paul (R-Ky.) have pushed the administration ever since to reveal its rationale for killing an American citizen without a trial.

"There is no precedent directly addressing the question in circumstances such as those present here," David Barron, a recently confirmed judge for the First Circuit Court of Appeals, writes in the July 2010 memo, acknowledging that he is in uncharted waters as he concludes that the law authorizing force against al Qaeda also justifies killing Awlaki. The document released Monday is a 41-page memo authored by Barron, who was then acting chief of the Justice Department's Office of Legal Counsel. It was released as part of a public records lawsuit against the government by the American Civil Liberties Union and The New York Times. The Justice Department released a white paper last year summarizing some of the memo's key conclusions: President Barack Obama's administration believed it could kill a senior member of al Qaeda as long as he posed an "imminent" threat to the United States.


But that white paper left many of the factual questions surrounding the justification for killing Awlaki unanswered, including how the government came to conclude that he was a senior member of al Qaeda, and why he posed an imminent threat. The memo released Monday by the Second Circuit Court of Appeals did little more to answer those questions, after the court complied with the government's request to redact any facts that would reveal intelligence or military sources and methods. Barron's memo relies heavily on "the facts related to us" by the CIA and Department of Defense, and bases much of its legal reasoning on the veracity of statements from those government agencies.


Other, still unreleased memos may provide more information about why the Obama administration believes it had the right to kill Awlaki, and the ACLU has pledged to continue its legal fight to have more government documents released. Barron references at one point an earlier memo that explains why "we do not believe that al-Aulaqi's U.S. citizenship imposes constitutional limitations that would preclude the contemplated lethal action." "The release of this memo represents an overdue but nonetheless crucial step towards transparency. There are few questions more important than the question of when the government has the authority to kill its own citizens," the ACLU's deputy legal director Jameel Jaffer said in a statement. "The drone program has been responsible for the deaths of thousands of people, including countless innocent bystanders, but the American public knows scandalously little about who is being killed and why."

******

here is the link to the memo:

http://www.scribd.com/doc/230989775/Barr...Memorandum

[Peter Lemkin]

All I can think of is something a German told NSA whistleblower Drake. This person told Drake, 'I come from a post-fascist society; but you are in a pre-fascist one!'::

[Drew Phipps]

Here's my initial impresions of the memo, if you don't have the patience to read it all:

Memo asserts:

1. The federal statute forbidding US citizens from killing other citizens abroad doesn't apply because the kind of killing prohibited is just the "unlawful" kind, and a killing under color and authority of law isn't the unlawful kind. (the same way a soldier is allowed to kill, or an executioner, or a police officer.)

2. US Drone strikes against US citizens abroad isn't prohibited by the Geneza convention, nor the Hague Convention. Although this is an "armed conflict" involving military forces, it isn't an "international" one, because al-Qaida and its affiliates aren't a "nation." The US is not forbidden to use military force in geographic areas outside the main area of combat.

3. The CIA and the DoD have provided enough information to justify their actions. (Even though we can't see that information) The CIA and the DoD will operate according to the accepted military practices (to minimize collateral damage). The CIA will allow the citizen a chance to surrender.

4. The Fourth Amendment of the Constitution is not offended because this warrantless seizure of a US citizen's life is justified under the circumstances.


My initial response:

1. The memo assumes the answer that it is supposed to prove, namely, that this sort of killings aren't unlawful. Saying that if an action isn't prohibited by Federal statutes, or by the Fourth Amendment, isn't at all the same thing as saying it is perfectly ok for the Federal Government to do it. Our federal government is supposed to be one of limited and enumerated powers, not one with general rule making authority. There isn't a specific rule saying that the FBI can't come to my house, kick down my door, and eat all my delicious food; how many place settings should I use?

2. Even if no other "nations" are combatants, uses of military force in other nations' territory does have international implications (and consequences). What about if trans-national corporations go to war all across the globe? Are we chucking away a century of international goodwill (and common sense) for sufficient reason?

3. Are you sure that allowing the persons and groups ordering the killings to self-determine whether or not they have sufficient justification to act is wise? We've always used more or less public hearings by the Judicial Branch of the government for that (up to now). You might be setting a bad precendent for others to justify thier actions. What if (hypothetically) a future Texas Governor Ted Cruz decides to authorize the Texas Department of Public Safety to shoot illegal immigrants on sight ? (You might think that's silly, but the problems posed by illegal immigrants is bigger than the Federal government wants to hear about, and feelings in Texas are quite polarized.) I peronally represent people charged with crimes who personally believe that their actions were justified - do they get a free pass? A "chance to surrender" sounds a lot like a Robocop movie.

4. The intricacies of the Fourth Amendment should be decided by the judicial branch of the government. That stated, this problem is far bigger than a Fouth Amendment "search and seizure" question. There are Due Process implications, common law implications, balance of power (between the 3 branches of government) problems, and more. At a bare minimum, before the government acts to deprive a citizen of thier life or their property, they are entitled to notice and a hearing.

There is one last thing you should know about the memo. The legality of all this stuff rests on a single assertion of fact, that al-Qaida caused 9/11. From that sprang the Patriot Act, Congress's gift of war making powers to the President, the AUMF, and much else. If that fact weren't true, the legality of drone strikes and presumably most everything else the US has done, folds up like a house of cards.

Conclusion: The memo, long as it is, doesn't contain sufficient Constitutional law to justify the actions, but contains a fair summary of how drone strikes, on certain US citizens, without notice or hearing, don't violate any existing statute or treaty. I recall my oath, and that of the President, and (I assume) all of the soldiers and generals, was to defend the Constitution of the United States. It is apparent to me on whose side the Contitution is, unpopular (and inconvenient) as that may be.