I’ve already addressed, repeatedly and at length, the substance of the claim that the President has the power to secretly order American citizens killed by the CIA far from any battlefield and without a whiff of due process, and won’t repeat those arguments now.  I will, however, note that the Bush administration’s refusal to release OLC memos which provided the legal justifications for the President’s most controversial War on Terror actions prompted extreme criticisms from Democratic legal scholars.

As but one example, Obama’s original choice to head the OLC, Dawn Johnsen, repeatedly railed against this Bush practice of concealing OLC memos as “secret law,” writing that “the Bush Administration’s excessive reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government.”  In her April, 2008 testimony before the Senate Judiciary Committee, she was nothing short of scathing on the practice of concealing OLC memos (note that the Bush DOJ, even when withholding OLC memos, at least would sometimes publicly present its legal reasoning in a far more formal and comprehensive way than anonymous leaks of purported summaries of parts of these memos to the NYT).

These are not operational actions being concealed, but legal conclusions that bind the Executive Branch, which is why Johnsen and others described it as “secret law” and condemned it as so un-democratic. It basically means citizens cannot even know the laws that prevail in the country. Now we have the Obama DOJ refusing to release the Awlaki OLC memo — which purported to authorize the President to assassinate a U.S. citizen without due process — and is also concealing OLC memos purporting to describe the legal limits of its surveillance powers, which it also refuses to disclose even in the face of lawsuits. May we say that this conduct “threatens the effective functioning of American democracy”? 

One part of Savage’s article that is receiving much attention is his revelation that the Awlaki memo “was principally drafted by David Barron and Martin Lederman, who were both lawyers in the Office of Legal Counsel at the time.”  Lederman became known to many people during the Bush years when he used his blog to relentlessly attack the legal arguments underpinning the Bush/Cheney effort to expand executive power in the name of the War on Terror.  Judging by numerous emails and the like, many people find it surprising that this very same Marty Lederman, having been appointed to the OLC by a Democratic President, would now be the person supplying the legal justification for one of the most radical War on Terror powers of all: the ability to assassinate U.S. citizens with no due process.

For reasons I’ll discuss in a minute, I don’t find this surprising at all; after all, Harold Koh was long one of the leading advocates for a narrow interpretation of the President’s war powers under the War Powers Resolution, only to become the architect — once appointed to the State Department — of the ludicrous claims offered to justify President Obama’s fighting the war in Libya even in the face of a Congressional vote refusing to authorize it.  That’s just how Washington functions (during the Clinton years, John Yoo actually objected that Clinton had “exercised the powers of the imperial presidency to the utmost” and had “accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law”; once appointed by Bush, Yoo helped codify the most sweeping presidential powers imaginable).  People who aren’t willing to adhere to that dynamic rarely end up in positions of power there, and if they refuse, never will again.

I do want to focus on one aspect of what Lederman apparently wrote in justifying the Awlaki killing. What led him to conclude that the President had this power despite all the above-referenced legal and constitutional impediments? According to Savage, it was this: “the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict.” So the AUMF allowed the President to designate Awlaki an “enemy combatant” without a shred of due process, and then to act against him using the powers of war, because we are at war with an entity for which Awlaki had become a combatant.

There are many problems with that reasoning, but one in particular that deserves attention now is this: that was exactly the theory repeatedly offered by the Bush DOJ for far less draconian acts than assassinating a U.S. citizen, and it was one that the very same Marty Lederman categorically rejected.  As I’ve noted many times, one of the most controversial Bush/Cheney acts was its claimed power to detain U.S. citizen Jose Padilla without charges or due process — not to kill him, but merely detain him — on the theory that the AUMF authorized the President to designate him as an “enemy combatant” and treat him accordingly.  The Marty Lederman of the Bush years was aghast at the very idea, writing on September 9, 2005:

To the extent actual legislative intent matters, I find it very difficult to believe that Congress actually “intended,” through the AUMF, to authorize the indefinite detention of American citizens captured in the U.S. under circumstances such as those in the Padilla case: Would Congress truly have intended to supersede the ordinary civil justice system for U.S. citizens who are detained here at O’Hare Airport and suspected of conspiring to violate U.S. criminal laws, so as to authorize their indefinite detention — that is, detention until the war against Al Qaeda ends — without trial?

So in the Bush years, Lederman simply could not fathom that Congress intended the AUMF to allow the mere detention-without-due-process of an American citizen, but when working for Obama, that very same AUMF allows the assassination of citizens without due process. There is one obvious difference between Padilla and Awlaki: Padilla was captured on U.S. soil, while Awlaki was in Yemen. That may matter when debating the moral and ethical justifications of what was done to Awlaki, but it’s totally irrelevant to the statutory question concerning what the AUMF permits.

If — as Lederman now argues — the AUMF allows President Obama in his unilateral discretion to designate a U.S. citizen as an enemy combatant and kill him without due process, then surely it allowed President Bush to designate Padilla as an enemy combatant and treat him accordingly.  That Padilla was already captured on U.S. soil may make a difference politically or morally, but it makes zero difference constitutionally or statutorily: the AUMF doesn’t even hint at any distinctions between enemy combatants inside the U.S. or outside, and a U.S. citizen doesn’t lose his Fourth and Fifth Amendment rights against the U.S. Government when leaving the country. Even leaving aside the extremely dubious claim that Awlaki could not have been captured, and further leaving aside that no efforts were made to apprehend him (or even indict him so that he could contest the charges), this much is plainly true: to have argued in the Bush years that the AUMF does not allow the President to detain U.S. citizens without due process, but argue now in the Obama years that it empowers the President to kill them without due process, requires some significant levels of intellectual flexibility, to put that as generously as possible.

Detaining U.S. citizens without charges wasn’t the only power the Bush DOJ argued was conferred by the AUMF.  Bush lawyers also cited that statute to argue that it had the power to eavesdrop on the calls of U.S. citizens without warrants provided that one of the parties to the call was deemed to be a member or supporter of Al Qaeda.  In an Open Letter opposing this theory which he signed and repeatedly promoted, Lederman found the idea that the AUMF would allow warrantless eaveasdropping in such circumstances to be baseless, writing that “the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime.”

Lederman’s eavesdropping argument was based on the existence of FISA’s warrant requirements, which he contended were not explicitly overriden by the AUMF and were thus still valid.  But there is also an Executive Order prohibiting presidential assassinations, as well as long-standing laws of war banning assassinations (see Section IX), which the AUMF did not repeal.  Moreover, Lederman argued that Bush’s warrantless eavesdropping program would be illegal “even in the absence of FISA, because of the Fourth Amendment”; surely that’s true of presidential assassinations and the Fifth Amendment (which bars the deprivation of life without due process) as well as the Fourth (which prohibits the seizure of persons without warrants).

As the Bush years proved (and as anyone with any experience with lawsuits knows), lawyers can always find arguments to justify whatever they do.  But I think any minimally rational person can immediately detect the extreme levels of sophistry at work here: according to Marty Lederman, it was outrageous to suggest in the Bush years that the AUMF could allow mere presidential detention or even eavesdropping targeted at American citizens accused of being involved with Al Qaeda, but during the Obama years, that same statute justifies presidential assassinations (and note that Padilla, whose treatment remains a symbol of Bush/Cheney radicalism, ultimately received a trial and at least the trappings of due process, whereas Anwar Awlaki did not and never will).

What all of this underscores most is the ongoing danger of having these vital legal and Constitutional issues resolved by the President’s own appointees within the Executive Branch, rather than by independent courts.  I thought this lesson was learned during the Bush years: Presidents can always find someone among their political appointees at DOJ to provide the legal stamp of approval for whatever they want to do.  Bush officials, of course, infamously claimed that everything Bush did in the areas of detention, surveillance, interrogation and war were legal because DOJ lawyers issued memos saying they were legal; about that theory, Digby wrote: “If it is the case that the president can designate an Office of Legal Counsel functionary to immunize government officials and employees against criminal behavior, then it is true, to all intents and purposes that ‘if the president does it it’s not illegal.’”  I addressed this same excuse in my forthcoming book — that Bush officials shouldn’t be prosecuted because DOJ lawyers approved of what they did — and wrote:

Under this theory, the president is free to commit whatever crimes he wants with total impunity as long as he can find some DOJ underlings to opine in advance that he has the legal authority to do so, something that every president – who always commands vast hordes of duitful partisans and ideological loyalists – would be able to do in every instance.

Lederman, who also was a Clinton appointee at DOJ, will (like Harold Koh) undoubtedly be on the short list for any number of important legal positions in a future Democratic administration.  If you were a Democratic President, wouldn’t you want him working for you, especially in a capacity which sets the limits on what you can and cannot do?  That would not have been true had he stood up and impeded what was obviously an important priority for this President.

This isn’t to personally impugn Lederman, whose work I respected during the Bush years and with whom I’ve had amicable interactions; the issue is an institutional one.  The reason we have separation of powers is precisely because the President’s personal appointees, even when well-intentioned and basically honest, cannot be counted on to impose meaningful accountability; the Founders warned long ago that the institutional pressures would prevent genuine checks and balances.  We need a separate branch — in the form of Congressional oversight or, in this case, Article III courts not beholden to the President — to make these judgments. The Obama administration could have argued to a court that it had the legal authority and justification to kill Awlaki when it was sued by the ACLU and CCR, but instead chose to hide behind secrecy and standing arguments to avoid doing so, opting instead to rely on the purported secret legal “authority” furnished by the President’s partisan underlings.

More and more, this is how the most vital matters in our democracy are decided: by secret deliberations among the President’s partisan lawyers. Charlie Savage recently gave a speech at a National Security and Civil Liberties conference at Harvard Law School, and he was preceded by President Obama’s top Terrorism adviser, John Brennan.  Brennan had implicitly criticized Savage for publishing an article earlier that week detailing the disagreements among Executive Branch lawyers over the President’s War on Terror powers, and this is what Savage said in reply:

There have been a lot of lessons learned in the decade that has passed since 9/11, but one of them, I think, is that executive branch legal interpretations matter enormously. It is so rare for one of these weighty issues of war powers to be decided on the merits by the courts because they are almost never justiciable. It is also rare for them to be decided by Congress, which is increasingly too dysfunctional to be coherent about anything . . .

As the administration debates the legality of taking such steps, I am sure that some in the government would prefer that the disputes not make their way to the public eye. But I believe that would not be in the national interest. Because for these and so many of the weighty events of the past decade, it was executive branch decision making– and executive branch lawyering – on which everything turned.

Savage’s anonymous DOJ sources on the Awlaki memo tried to emphasize that this decision applies only to Awlaki.  Even leaving aside the fact that Dana Priest already reported almost two years ago that either 2 or 3 other Americans have been targeted by Obama for assassinations, this claim is completely ignorant of how legal reasoning works. Of course the Awlaki killing sets a precedent that can be used for future cases where a President wants to assassinate another U.S. citizen without due process; as Savage put it in his speech about Bush OLC decisions:

By acting on their theories, they were converting them into historical fact. A president had done these things based on these theories, and since he had done them, those theories must be true and so would be available to future presidents to invoke when they, too, wanted to do something that seemed to conflict with a statutory or legal constraint. At its most cynical, that’s how executive branch lawyering works: in the vast areas that are immune to judicial review and take place largely in secret, the accretion of historical precedent – whatever a president in the past got away with — becomes the baseline for his successors to build upon, pushing out further. These precedents are now an immutable part of American history, and will influence how the government handles itself for generations.

[Savage's entire speech -- which also details how Obama has continued the bulk of Bush/Cheney Terrorism policies while trying at first (though not so much recently) to avoid the broad executive power theories that justified them -- is available for purchase online for 99 cents and is well worth reading for those interested].

Whether the President has the authority to order the CIA to assassinate American citizens without due process — whether the Fourth and Fifth Amendments permit such extreme acts — is a matter that courts should decide, not the President’s personal partisan appointees such as David Barron and Marty Lederman.  Seeing how flexible Lederman is willing to be based on who is in the Oval Office only underscores the dangers of allowing all of these vital issues to be decided within the Executive Branch, with no checks, no transparency, no oversight and no due process provided by other branches.

UPDATE: Like Lederman, David Barron — the acting OLC Chief who signed off on the Awlaki memo — was, as I wrote in January, 2009 when praising Obama’s “excellent OLC appointees,” an advocate of the idea (in the Bush years) that “the President’s ‘war powers’ have been wildly overstated” during the War on Terror. In fact, Barron had co-written a Harvard Law Review article with Lederman urging greater restraints on the war powers of the Commander-in-Chief.  Citing that article and Lederman’s history of advocacy, I wrote when their appointments were announced:

It is virtually impossible to imagine that particular group of individuals placing political allegiance to Barack Obama over the principles they have so forcefully advocated over the last several years.

I cringed multiple times when I saw that statement today (since leaving the Obama DOJ, Lederman blogs at OpinioJuris, where he defends Obama’s civil liberties record — about which the ACLU Executive Director said this — with greater fervor and absoluteness than Jay Carney does).  Whatever else is true, this is why the President’s underlings should not be unilaterally and secretly determining the scope of his powers when acting against American citizens.

Meanwhile, Marcy Wheeler unsurprisingly raises several other important points about the Awlaki memo.

UPDATE II: Marcy Wheeler adds this observation:

Given that these anonymous leaking DOJ officials appear to have been on a mission to justify the President’s assassination order, it’s probably inadvisable to hold your breath waiting for the criminal leak investigation to begin.

UPDATE III: For more on the dangers of the administraiton’s selective leaking, see here.

TAPPER: The White House keeps praising these journalists who are — who’ve been killed –

CARNEY: I don’t know about “keep” — I think -

TAPPER: You’ve done it, Vice President Biden did it in a statement. How does that square with the fact that this administration has been so aggressively trying to stop aggressive journalism in the United States by using the Espionage Act to take whistleblowers to court?

You’re — currently I think that you’ve invoked it the sixth time, and before the Obama administration, it had only been used three times in history. You’re — this is the sixth time — you’re suing a CIA officer for allegedly providing information in 2009 about CIA torture. Certainly that’s something that’s in the public interest of the United States. The administration is taking this person to court. There just seems to be disconnect here. You want aggressive journalism abroad; you just don’t want it in the United States.

That question is unanswerable, but see the transcript here as Carney struggles to provide a response while Tapper repeatedly insists on an actual answer.

(2) Last night, Frank VanderSloot issued a lengthy response to my story from Friday about him. One can read the full statement here, along with a good video report by a local Idaho news station about the story. Also worth reading is the reply from one of the gay Idaho bloggers whom I highlighted in my story, James Tidmarsh, who removed a post he wrote about VanderSloot after receiving threatening communications from his lawyers.

(3) Tucker Carlson has long been a vocal, public advocate of the justness of American wars, but, at age 42, he is yet to enlist to fight any of them. Last night on Fox News, he unleashed what appeared to be one of the more vile comments heard in quite some time, as he publicly opined that “Iran deserves to be annihilated” (see video below):

CARLSON: I think we are the only country with the moral authority [...] sufficient to do that. [The U.S. is] the only country that doesn’t seek hegemony in the world. I do think, I’m sure I’m the lone voice in saying this, that Iran deserves to be annihilated. I think they’re lunatics. I think they’re evil.

The only reservation he expressed was that “we should assess what will happen to the price of energy were we to do that.” And yes, he did say that the United States — the country whose actions are depicted by this map — is “the only country that doesn’t seek hegemony in the world.” And yes, he also — with a straight face — called for the annihilation of 75 million people at the same time that he said about someone else: “they’re lunatics. I think they’re evil.” 

I had an email exchange with Carlson today about these remarks in which I attempted several times to get him to elaborate. It began quite acrimoniously but eventually led to his repudiating what he seemed to be saying and explaining that he misspoke (despite his suggestion to me, Carlson described in a New York Observer interview how he publicly supported the Iraq War at the start, though he turned against it fairly quickly). In any event, it’s good that he renounced these remarks, and I found the exchange with him (which can be read here) to be quite interesting on a few levels (a small portion of what he said took place, at his request, off the record, though it did not at all change the on-the-record part of the exchange).

(4) Both Scott Lemieux and Jeralyn Merritt have good commentaries on Elena Kagan’s joining with the five right-wing Supreme Court Justices to dilute the protections of Miranda. One thing I found fascinating is to read how many commenters to this Daily Kos post about the ruling are actually defending the Alito/Thomas/Roberts/Scalia rationale (though the majority are criticizing Kagan). How many of them would be defending the Court conservatives this way had Kagan not joined them in their opinion diluting Miranda? My guess — on which I’d place a fair amount of money — is: zero. Had it been only the five right-wing Justices voting this way, I strongly believe that not a single one of those commenters would be uttering a peep of support for it. Instead, we’d be hearing in unison: look at how these right-wing Republican fascists on the court are attacking our Constitutional rights; this decision shows why the Supreme Court makes Obama’s re-election so urgent!! I’m just constantly amazed — though I know at this point I shouldn’t be — at how there is no political principle, no fixed belief, that will not be jettisoned the moment doing so is even mildly helpful in defending and glorifying the leader (good for President Obama’s Court appointee, Elena Kagan, for joining with Clarence Thomas and Sam Alito in stomping on those excessive Miranda protections for prisoners).

(5) In a profile today of Scott Ritter in The New York Times Sunday Magazine, which primarily focuses on his criminal problems, Matt Bai writes:

[I]t was Ritter who then did an about-face and emerged, during the long period that led to the war, as the loudest and most credible skeptic of the Bush administration’s contention that Hussein was hiding weapons of mass destruction. In a bizarre moment in 2002, Ritter even made the long journey back to Baghdad to address the Iraqi Parliament as a private citizen, warning that his own country was about to make a “historical mistake” and urging the Iraqis to allow inspections to resume. For this, and for his relentless insistence that the presence of hidden W.M.D.’s was nothing but a political pretense for war, Ritter was dismissed and even mocked by much of the media establishment (including writers for this magazine and The New York Times).

Leave to the side the question of what was remotely “bizarre” about Ritter’s trip to Baghdad in order to speak to the Iraqi Parliament: Ritter, after denouncing as false the claims being made about Iraqi WMDs, urged the Iraqis to try to avoid war by “loudly reject[ing] any intention of possessing these weapons and then work[ing] within the framework of international law to demonstrate this a reality” by allowing “inspectors unfettered access to sites inside Iraq in order to complete the disarmament tasks as set forth in Security Council resolutions.” What’s bizarre about that? But that aside: it’s remarkable, even after all this time, to read in such clear terms how those who challenged the premise of this war — and who were right about it — were, in Bai’s words, “dismissed and mocked by much of the media establishment (including writers for this magazine and The New York Times).”

(6) Last week, CNN’s Erin Burnett announced that “no one buys Iran’s claim that its nuclear program is for peaceful purposes.” Also last week, the following exchange occurred in a Senate hearing:

Senator Lindsey Graham, Republican of South Carolina, pressed James R. Clapper Jr., the director of national intelligence.

“Do you have doubt about the Iranians’ intention when it comes to making a nuclear weapon?” Mr. Graham asked.

“I do,” Mr. Clapper replied.

On a similar note, Jeffrey Goldberg — who did so much work in 2002 and 2003 to convince Americans that Iraq was tied to Al Qaeda (something he continues to do) — yesterday made this claim in a Bloomberg column about Iran: “It is a country that, according to the U.S. Treasury Department, funds al-Qaeda.” So now Iran funds Al Qaeda? Is there any world evil for which Iran is not responsible?

On Monday, AP detailed how the NYPD spied on numerous Muslim students and their campus organizations. In particular, “police trawled daily through student websites run by Muslim student groups at Yale, the University of Pennsylvania, Rutgers and 13 other colleges in the Northeast” and “talked with local authorities about professors in Buffalo and even sent an undercover agent on a whitewater rafting trip, where he recorded students’ names and noted in police intelligence files how many times they prayed.” The dossiers noted the names of Muslim student leaders and even stored emails sent and received by some of them. All this, even though the “documents mention no wrongdoing by any students.”

Today, AP released a newly obtained report by the NYPD from 2007 about the Muslim community in Newark, New Jersey — both Middle Eastern and African-American in origin — prompting one of the AP reporters, Matt Apuzzo, to ask on Twitter: “If NYPD can write docs like this outside its jurisdiction, where cant they go? Post-9/11, is NYPD a nat’l police force?” As AP reported today about this newly released dossier: “Americans living and working in New Jersey’s largest city were subjected to surveillance as part of the New York Police Department’s effort to build databases of where Muslims work, shop and pray.” The report was produced as part of a surveillance campaign whereby “plainclothes officers from the NYPD’s Demographics Units fanned out across Newark, taking pictures and eavesdropping on conversations inside businesses owned or frequented by Muslims.” Yet again, “the report cited no evidence of terrorism or criminal behavior,” but was meant to instead be “a guide to Newark’s Muslims.” AP continued:

Such surveillance has become commonplace in New York City in the decade since the 2001 terrorist attacks. Police have built databases showing where Muslims live, where they buy groceries, even what Internet cafes they use and where they watch sports. Dozens of mosques and student groups have been infiltrated and police have built detailed profiles of ethnic communities, from Moroccans to Egyptians to Albanians. . . . The effect of the program was that hundreds of American citizens were cataloged — sometimes by name, sometimes simply by their businesses and their ethnicity — in secret police files that spanned hundreds of pages.

It is really worth looking at this document for a sense of how insidious it is when the government spies on and compiles files about innocent citizens. The report contains numerous maps identifying the locations of all mosques in Newark:

It contains photographs of those mosques and other Islamic groups and even schools, including ones in private homes, accompanied by identifying information and other notes suggesting some sort of nefarious intent (“aggressive counter-surveillance observed,” which presumably means that someone from the mosque was watching police agents spy on them):

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The report even includes maps and active surveillance of halal shops, Middle Eastern groceries, and restaurants where Muslims gather:

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AP details that numerous names of individuals suspected of no wrongdoing are often included in these files; here, for instance, is what was contained the dossier compiled by the NYPD about the Muslim community on Long Island:

The effect of the program was that hundreds of American citizens were cataloged — sometimes by name, sometimes simply by their businesses and their ethnicity — in secret police files that spanned hundreds of pages:

— “A Black Muslim male named Mussa was working in the rear of store,” an NYPD detective wrote after a clandestine visit to a dollar store in Shirley, N.Y., on Long Island.

— “The manager of this restaurant is an Indian Muslim male named Vicky Amin” was the report back from an Indian restaurant in Lindenhurst, N.Y., also on Long Island.

— “Owned and operated by an African Muslim (possibly Sudanese) male named Abdullah Ddita” was the summary from another dollar store in Shirley, N.Y., just off the highway on the way to the Hamptons, the wealthy Long Island getaway.

New York Mayor Michael Bloomberg has long claimed — preposterously — that the NYPD does not target communities for survillence based on their religion, but as AP notes:  ”In one section of the  report, police wrote that the largest immigrant groups in Newark were from Portugal and Brazil. But they did not photograph businesses or churches for those groups.” That’s because “‘No Muslim component within these communities was identified,’ police wrote.” In the wake of this latest evidence, Bloomberg seemed to abandon that denial, shifting instead to justification: “The police department goes where there are allegations. And they look to see whether those allegations are true,” said the Mayor. “That’s what you’d expect them to do. That’s what you’d want them to do. Remind yourself when you turn out the light tonight.”

This government spying on the perfectly innocent activities of innocent Americans and other legal residents is just a tiny though illustrative fraction of the dossiers being regularly compiled by government agencies. The Surveillance State compiles a massive amount of data about even the most innocuous activities of Americans – recall that the Washington Post‘s “Top Secret America” 2010 series reported that ”every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications” – and the scope of what it gathers always expands and never constricts. But there are two odious aspects of the Surveillance State specifically highlighted by the NYPD’s program here.

First, Muslims generally — and, increasingly, American Muslims — are branded with virtually official non-person status under the law. On Monday, I wrote about the way in which core tyrannical powers — arbitrary detention, limitless spying, due-process-free assassinations — have become normalized in the U.S., Israel and its Western allies, but it is almost always Muslims who are the target of these abuses. Every serious episode of civil liberties assaults in American history was driven by the full-scale demonization of one specific group. There are still plenty of groups who perform that function, but there is no question that Muslims are the prime target now.

Second, this perfectly illustrates what I have often described as the one-way mirror dynamic of the American Surveillance State: it isn’t merely that the State knows more and more about the private activities of citizens, but worse, that happens at exactly the same time that citizens know less and less about the activities of the State. At exactly the same time that the Surveillance State has exploded into a sprawling, ubiquitous, unaccountable apparatus, the U.S. Government and its various agencies have erected an increasingly impenetrable wall of secrecy behind which it operates. This imbalance grows inexorably. Note how the NYPD report — which collects all sorts of information about Newark Muslims suspected of no wrongdoing — contains these designations and warnings on its cover:

That’s the essential expression of the American Surveillance State: we can and will know everything about what you do, and you will know virtually nothing about what we do. In a healthy society, that formula would be reversed: the citizenry (with rare exceptions) would know most everything about what their government does, while the government would know nothing about what citizens do in the absence of well-grounded suspicion that they have done something wrong. Yet here we have the NYPD wandering outside of its jurisdiction in order to spy on the innocuous activities of a community of a religious minority (not even the Newark Mayor was informed about this), and the most disturbing part of it all is how common it now is.

* * * * *

Speaking of the one-way mirror of the Surveillance State, a Polk Award was also awarded yesterday to The New Yorker‘s Jane Mayer for her excellent article on the Obama administration’s war on whistleblowers, which I wrote about here. As the Committee awarding the Polk Awards put it: Mayer “ends her masterful tale with the conclusion that America’s bloated ‘national-surveillance state’ poses a greater threat to civil liberties than ever before.”

Thus far, it’s been far too early to know what type of Justice she will be — in part because she recused herself from so many important cases (because she had worked on them as Obama’s Solicitor General) and because the wheels of justice grind especially slowly on the Supreme Court level. To the extent there has been any evidence, it has been mixed: she refused to join with Justices Ginsburg and Sotomayor in voting to review both (1) a death sentence imposed on a woman whose lawyers argued “is borderline mentally retarded, with the intellectual ability of about a 13-year-old,” and (2) dismissal of a case brought by two Colorado residents alleging that their First Amendment free speech rights were violated when they were forcibly removed from a Bush campaign event due to anti-war t-shirts they were wearing. Those were somewhat disturbing decisions (though of limited value in knowing her judicial approach); on the other hand, she authored an important and powerful dissent enforcing the First Amendment bar against state establishment of a  religion.

Today, although the overall picture is still incomplete, we have probably the clearest — and definitely the most troubling — sign yet. In Howes, Warden v. Field, released today, the U.S. Supreme Court reversed a decision of the Sixth Circuit Court of Appeals, which (along with the federal district court hearing the case) had held that a prisoner’s Constitutional rights had been violated when prison officials interrogated him for five to seven hours without advising him of his Miranda rights. The prisoner confessed during his lengthy interrogation; the State then used the confession at trial; and he was ultimately convicted and sentenced to 10 to 15 years in prison. He then filed for a writ of habeas corpus in federal court, arguing that he was in “custody” during the protracted interrogation and the failure to advise him of his Miranda rights meant the State was barred from using the confession to convict him (Miranda warnings are required for any “custodial” questioning: when the person being interrogated is “held” for interrogation). Both the district court and Sixth Circuit agreed that he was in “custody” during the interrogation, and thus granted habeas corpus due to the failure of prison officials to advise him of his right to remain silent, his right to an attorney, etc.

The Supreme Court today reversed the Sixth Circuit’s grant of habeas corpus. All nine of the justices agreed that the legal conclusion of the Sixth Circuit — that “isolation from the general prison population, combined with questioning about conduct occurring outside the prison, makes any such interrogation custodial per se” – was not “clearly established Federal law” (a prerequisite to granting habeas corpus relief for a state prisoner). But on the question of whether the prisoner was entitled to be read his Miranda rights under the circumstances here — i.e., he did not consent to being removed from his cell for interrogation and was “questioned by two armed deputies long into the night and early morning,” often with the door closed — the Supreme Court split by a 6-3 vote. Six justices (the 5 right-wing justices plus Kagan) signed onto Justice Alito’s opinion ruling that the prisoner was not in “custody for purposes of Miranda,” while the 3 relative liberals on the Court (Ginsburg, Sotomayor and Breyer) all joined Justice Ginsburg’s dissenting opinion, which concluded (citations omitted):

As the Court acknowledges, Fields did not invite or consent to the interview. He was removed from his cell in the evening, taken to a conference room in the sheriff ’s quarters, and questioned by two armed deputies long into the night and early morning. He was not told at the outset that he had the right to decline to speak with the deputies. Shut in with the armed officers, Fields felt “trapped.” Although told he could return to his cell if he did not want to cooperate, Fields believed the deputies “would not have allowed [him] to leave the room.” And with good reason. More than once, “he told the officers . . . he did not want to speak with them anymore” . . . .

Was Fields “held for interrogation”? See Miranda, 384 U. S., at 471. Brought to, and left alone with, the gun-bearing deputies, he surely was in my judgment. . . . For the reasons stated, I would hold that the “incommunicado interrogation [of Fields] in a police-dominated atmosphere,” without informing him of his rights, dishonored the Fifth Amendment privilege Miranda was designed to safeguard.

I don’t want to overstate the importance of this ruling: it’s not the most significant Supreme Court decision ever and it’s not dispositive on the question of whether Kagan will turn out to be a good replacement for Stevens; that still remains to be seen. But it’s also far from unimportant. As the lawyer Bmaz at Marcy Wheeler’s blog observes today, “the decision is a significant further erosion of the critical Constitutional protections embodied in Miranda.” That’s because it “specifically holds that police are not automatically required to tell prisoners of their legal right to remain silent and have an attorney present when being questioned in prison about another crime.”

But beyond the specifics of this case, one’s views on Miranda have long been a key determinant of where one falls on the jurisprudential spectrum. Miranda rights have long been a prime bugaboo of the authoritarian Right’s complaints about supposedly excessive protections for criminal defendants (Justices Scalia and Thomas, in a 2000 case, actually argued that Miranda should be overruled). Conversely, the recognition of that right was one of the crown jewels of the Warren Court, and its stalwart protection in robust form has been a litmus test for whether one is devoted to Constitutional safeguards to ensure a fair criminal justice system (President Obama has invoked Terrorism to justify the erosion of Miranda). To watch Elena Kagan side with Justices Scalia, Thomas, Alito, Roberts and Kennedy and against Ginsburg, Sotomayor and Breyer on such a central and long-standing dispute — the scope of Miranda – does not bode well.

Notably, the last significant Supreme Court case on Miranda came in the 2010 case of Berghuis, Warden v. Thompkins. There, the conservative faction also prevailed in significantly limiting the scope of Miranda protections. Except there, the vote was 5-4, not 6-3. That’s because Justice Stevens joined with Ginsburg, Breyer and Sotomayor in defense of robust Miranda protections; this time, the vote was 6-3 because Stevens’ replacement — Justice Kagan — joined with the conservative majority. That’s what many of us who were concerned about Kagan’s nomination meant when we argued that, even if she often votes with the liberal wing, there is a high risk that, as the replacement for Justice Stevens, she will move an already right-wing court further to the Right, particularly in areas of executive authority and state police power.

In 2010, the State Department included a long section on the oppressive detention practices of China. The “principal human rights problems” of the tyrannical Chinese government include “a lack of due process in judicial proceedings” and “the use of administrative detention.” Indeed, “arbitrary arrest and detention remained serious problems. The law grants police broad administrative detention powers and the ability to detain individuals for extended periods without formal arrest or criminal charges.” Can one even find the words to condemn these Chinese monsters?

Time‘s Tony Karon today writes about the case of Khader Adnan, a 33-year-old Palestinian baker currently imprisoned without charges by the Israeli government on accusations that he is a spokesman for Islamic Jihad. To protest his due-process-free imprisonment and that of thousands of other Palestinians, Adnan has been on a sustained hunger strike and is now close to death. Karon writes:

Israel has not charged Adnan with any crime . . . Israel deals with such cases using a legal framework based on emergency laws left over from British colonial rule to detain any suspect for six months at a time without needing to provide evidence or lay charges against them. When a detainee’s six-month spell has expired, the detention can simply be renewed.

Writing today about the Adnan case in The National, Joseph Dana explains that Israel imprisons Adnan and so many like him pursuant to “a framework of laws and statutes to govern all aspects of life in the Occupied Palestinian Territories,” and “many, if not most, of the laws governing movement of Palestinians, freedom of speech and association are draconian in nature; none is more alarming than the administrative detention order. The order enables Israel to hold prisoners indefinitely without charging them or allowing them to stand trial.” Behold the principles of justice driving this Israeli behavior:

Mr Adnan’s story is emblematic of the administrative detention experience of many Palestinians. He claims to have been beaten and humiliated by Israeli soldiers while in custody, and began his hunger strike in protest. On January 8, Mr Adnan was given a four-month administrative detention order, which can be renewed indefinitely, after a military judge reviewed classified information against him. Evidence and allegations have not been made available to Adnan or to his lawyer.

According to the Israeli military, information in administrative detention cases is kept classified in order to protect sources of intelligence. To this day, the only claim that Israel has made about Mr Adnan’s detention is that he is a high risk to Israeli security.

Of course, the U.S. has its own system of indefinite detention now firmly in place. Both within war zones and outside of them, the Obama administration continues to hold hundreds of prisoners who have never been charged with any crime even as they have remained captive for many years. Put another way, both the U.S. and its closest client state have completely normalized exactly the type of arbitrary, due-process-free imprisonment the U.S. has long condemned as the defining attribute of despotism. And, of course, the U.S. Congress just enacted, and President Obama just signed, a law that expressly permits indefinite detention.

Worse, these countries have normalized this practice not merely in terms of government policy, but also the expectations of their own citizens. A recent Washington Post/ABC News poll found widespread support across the American ideological spectrum for maintaining Guantanamo, where more than 150 prisoners are still held without any charges of any kind, while Dana today writes that “to date, Mr Adnan’s hunger strike has stirred little debate in the Israeli press about the legitimacy of administrative detention” (this is the seventh time Adnan has been imprisoned without charges). The hallmark of the Supremely Authoritarian Citizen — dutifully reciting unproven Government accusations as Truth to justify due-process-free punishment (he’s a Terrorist!) — is now extremely commonplace in the citizenries of both countries.

Even random glances at State Department Human Rights reports will lead one to the most suffocatingly hypocritical denunciations by the U.S. Government. It condemns China, for instance, for the harsh detention conditions of one detainee who “was repeatedly subjected to solitary confinement. . . . The longest period of such confinement reportedly lasted 11 months.” Accused WikiLeaks leaker Bradley Manning, convicted of no crime, spent 10 months in extreme solitary confinement; the U.S. prison industry is teeming with prisoners who are subjected to this abuse (as one American held for 10 years in solitary confinement by China put it last month in an Op-Ed: “Imagine how shocked I was to find years later that we, the United States of America, hold more human beings in long-term solitary confinement than any other country in the world. I had supposed it would be China — but, no, it’s us”); meanwhile, Israel routinely uses harsh solitary confinement for Palestinian prisoners and even places Palestinian children in solitary confinement for weeks on end.

The State Department report on China also accuses the Communist state of “extrajudicial killings, including executions without due process.” That, of course, is exactly what the Obama administration has been doing continuously with its manic fixation on drone murders in at least six Muslim countries and its targeted, due-process-free execution of its own citizens (and their children). Again, not only does this provoke very little controversy among Americans, this power long cited by the State Department as the ultimate indiciator of tyranny — “executions without due process” — now provokes widespread cheers from majorities of all American political factions. Israel, of course, has been using due-process-free “targeted assassinations” for many years.

What’s so notable here isn’t merely that the U.S. and Israel are engaged in the very practices which the U.S. annually and flamboyantly condemns as “human rights abuses” when done by others. It’s that these abuses have now been going on for so long in the two countries, are so entrenched, that they have been absorbed into the political landscape as barely noticed accoutrements. They have become completely normalized — not just legally and politically but culturally – to the point where they are scarcely controversial.

Earlier today, Foreign Policy Managing Editor Blake Hounshell wrote about the Palestinian hunger striker: “If Khader Adnan is really a member of Islamic Jihad, he should be charged and tried in court. If he’s committed no crime, release him.” That this even needs to be said at all is a potent sign of how severely our conceptions of justice have collapsed (just like: the U.S. Government shouldn’t be executing its own citizens based on the secret orders of the President without any due process). But even more telling is that it is the objections to these practices, rather than the practices themselves, that are considered fringe and radical. That’s because tyrannical practices, when acquiesced to for a long enough time, become norms, and only radicals, by definition, object to those.

* * * * *

The U.S. last year also denounced China because “police surveillance, harassment and detentions of activists increased around politically sensitive events”; because “Internet users at cafes were often subject to surveillance”; and because “former political prisoners and their families frequently were subjected to police surveillance, telephone wiretaps, searches, and other forms of harassment.” Today, Associated Press — continuing its superb investigative series on the massive surveillance practices aimed at American Muslims by the NYPD, often in conjunction with the CIA — describes how Muslims student groups and Muslim students in the United States, suspected of no wrongdoing whatsoever, were subject to extensive surveillance by police officials, including a file collecting their emails.

UPDATE: Israeli government spokesman Mark Regev appeared on CNN International earlier today and actually faced some probing, adversarial questions about this case from Hala Gorani (the video is below; I wasn’t previously familiar with Gorani, but as soon as I saw it, I knew it had to be CNN International because no anchor on the U.S. version of CNN would dare conduct such an adversarial interview with an Israeli official). Here was the first exchange:

GORANI: So if there’s any evidence there against this man, Khader Annan, why isn’t it (a) being shared with his lawyer, why isn’t he being charged officially, and why isn’t this case being brought to trial? Why is this man being held without charge?

REGEV: First of all, there’s been a number of hearings already . . . . It’s clear that in Terrorist cases, often you rely on intelligence information – there are problems with sources and methods – and Israel, like other democracies, like the United States, like Great Britain, there is a certain amount of discretion you have.  But I think it’s important to say here, if I might, that this man is a self-professed leader in Islamic Jihad . . . .

Gorani asks several more times: if, as you claim, there is so much evidence proving he’s guilty, why can’t you put him on trial and show the evidence? It’s really worth watching the whole interview, both because it reveals how rare effective adversarial interviews are (it’s hard to imagine many establishment journalists grilling an American official this way, though it does sometimes happen), and because Regev immediately cites the fact that the U.S. imprisons people without due process as the excuse for why Israel can: