ARTS & FARCES internet

President Obama was never opposed to the provisions of this year’s version of the National Defense Authorization Act (NDAA) that allow for US citizens to be detained indefinitely without due process. If passed and signed into law, anyone anywhere—including US citizens—can be imprisoned for any length of time without ever being charged with, tried, or convicted of a crime. Contrary to what his administration has said, Obama was concerned solely with imagined limitations on the executive branch with regard to the indefinite detention provisions. So, the corporate media is wrong when it reports that President Obama “backed down” yesterday under “political pressure” when he announced he would not veto the bill. He did it all his own self.

The NDAA was born of President George W. Bush’s administration’s manipulation of the nation’s fear, insecurity, and bias after the 11 September 2001 attack and provided the seed corn from which a whole collection of terrible legislation, most notably the USA PATRIOT Act, grew. It marks the slow descent of American civil liberties into a steep nosedive and is the worst case of fear-mongering politics since Joseph McCarthy. Where McCarthy saw communists and subversives; these people see terrorists. The parallels with McCarthy aren’t just vague generalizations. As Ateqah Khaki, writing for the American Civil Liberties Union (ACLU) points out, “The last time Congress passed indefinite detention legislation was during the McCarthy era and President Truman had the courage to veto that bill.” Khaki is referring to the McCarran Act—the Internal Security Act of 1950. Truman vetoed the bill, but Congress overrode his veto.

As Glenn Greenwald, writing for Salon notes, “President Obama, needless to say, is not Harry Truman. He’s not even the Candidate Obama of 2008 who repeatedly insisted that due process and security were not mutually exclusive and who condemned indefinite detention as ‘black hole’ injustice.”

Just as George W. Bush had the despicable John Yoo—who maintained in a secret legal memo (and continues to maintain) that torture is legal, the Geneva Conventions (or any other laws of war) applied to the conflict in Afghanistan, and the president is not bound by the War Crimes Act—Barack Obama has David Barron and Martin Lederman in his Justice Department’s Office of Legal Counsel who secretly maintain the legality of assassinating a US citizen.

Charlie Savage, writing for the New York Times, reports that a secret legal memorandum within the Obama administration found that the assassination would be legal “only if it were not feasible to take him alive….”

The Bill of Rights, international laws of war, federal law against murder, and an executive order all clearly ban assassination. But the secret legal opinion was crafted specifically for Obama to allow the assassination of Anwar al-Awlaki, a US citizen and Muslim cleric living in Yemen. Savage reports that the secret opinion “was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.”

Savage reports that Barron and Lederman’s secret memo holds that Awlaki could be assassinated because US intelligence was convinced he was taking part in the war with Al Qaeda, posed a significant threat, and the Yemeni “were unable or unwilling to stop him.” In other words, Awlaki was fair game in the September 2001 Congressional authorization to use military force against terrorists.

Awlaki was killed in a covert September 2011 strike by an unmanned drone aircraft in Yemen, with the secret knowledge and permission of the president of Yemen. The Obama administration refuses to discuss its role in the strike, if it was a military or intelligence strike, the feasibility of capturing Awlaki, or providing any explanation of its position of legal assassination of a US citizen.

It’s high time for US presidents to stop hiding behind fallacious secret legal memos. If a president believes the opinions to not be fallacious, there’s absolutely no reason for secrecy.

The US Federal Bureau of Investigation (FBI) has always been able to put just about whoever they liked on the US government’s terrorist watch list. Now, in response to a Freedom of Information Act (FOIA) request by the Electronic Privacy Information Center (EPIC), it turns out that even those who have been acquitted of terrorism or against whom charges have been dropped, can remain on the list.

“If an individual is acquitted or charges are dismissed for a crime related to terrorism, the individual must still meet the reasonable suspicion standard in order to remain on, or be subsequently nominated to, the terrorist watch list,” reads a December 2010 guidance memorandum included in the released documents. In other words, once your on the US government’s terrorism watch list, you’re presumed guilty, even if you’ve been acquitted.

According to Charlie Savage, writing for the New York Times, the 91 pages of documents “lay out, for the first time in public view, the legal standard that national security officials must meet in order to add a name to the list. And they shed new light on how names are vetted for possible removal from the list.”

Savage reports that the FBI shares the terrorist watch list with other federal agencies, for screening aircraft passengers, for screening border crossings, for screening visa applications, and with local police for traffic stop screening. He cites American Civil Liberties Union (ACLU) lawyer Chris Calabrese who calls the terrorist watch list a “‘Star Chamber’—a secret determination, that you have no input into, that you are a terrorist. Once that determination is made, it can ripple through your entire life and you have no way to challenge it.”

Savage reports the US government’s terrorist watch list currently contains “about 420,000 names, including about 8,000 Americans.”

Yesterday I posed a simple question on Twitter: “Would someone please explain to me just what US law(s) WikiLeaks has violated? It didn’t leak, remember, only published.” It drew quite a few responses, but no one could point to a single US law that WikiLeaks has broken.

Given that fact, one can reasonably ask what drove the decisions of Amazon, EveryDNS, PayPal, and who knows how many other businesses and service providers to cut off access for US citizens to the WikiLeaks material. I’m left with politics as an answer—the convenience of avoiding discomfort and inconvenience under political cover, to be more precise. American politicians—most notably Senator Joe Lieberman (I-Connecticut)—are said to be behind the various service disruptions involving WikiLeaks and the purloined content it published.

But Amazon, perhaps a little slow on the uptake of the ramifications of its WikiLeaks takedown, quickly issued a statement maintaining that Lieberman had nothing to do with the issue. WikiLeaks had violated Amazon’s terms of service, that’s all.

EveryDNS, for its part, cowered behind a clause in its terms of service: “More specifically, the services were terminated for violation of the provision which states that ‘Member shall not interfere with another Member’s use and enjoyment of the Service or another entity’s use and enjoyment of similar services.’” WikiLeaks didn’t interfere with anything, it was the target of multiple highly organized distributed denial of service (DDoS) attacks.

PayPal, under the cover of darkness on a late Friday night, “permanently restricted the account used by WikiLeaks due to a violation of the PayPal Acceptable Use Policy, which states that our payment service cannot be used for any activities that encourage, promote, facilitate or instruct others to engage in illegal activity.”

Fine. Except WikiLeaks—nor any of its principals—has been indicted, tried, or convicted of any crime. While it may be illegal to leak certain information in certain situations, in the US it’s not illegal to publish said information. Amazon, EveryDNS, and PayPal are undoubtedly cowards and no longer worthy of anyone’s business. Additionally we’ve learned the very difficult—but very important—lesson that the internet, long assumed to be impervious to censorship, doesn’t really interpret censorship as damage and route around it like we all thought after all.

While the loss by the American citizenry to the source WikiLeaks documents is tragic, and a terrible loss, no one’s likely to die because of lack of access. And this is where things take a hard right turn into the bizarro ditch.

In an article co-published with the New Orleans Times-Picayune, Sabrina Shankman and Tom Jennings of Frontline, Brendan McCarthy and Laura Maggi of the New Orleans Times-Picayune, and AC Thompson of ProPublica report that New Orleans police were told they could shoot looters after hurricane Katrina. The journalists source the story from present and former members of the New Orleans police department and report that “it’s not clear how broadly the order was communicated” and that some officers refused to carry it out.

A police lieutenant provided a partial videotape of a police captain relaying the order: “We have authority by martial law to shoot looters,” the journalists report being able to hear Captain James Scott tell officers on the videotape. The lieutenant who shot the video refused to provide the complete recording. The report notes Captain Harry Mendoza “told federal prosecutors last month that he was ordered by Warren Riley, then the department’s second-in-command, to ‘take the city back and shoot looters.’” A police lieutenant under Mendoza told the reporters he’d testify to hearing the same order. Riley denies issuing the order to shoot looters. Scott refused to comment but his attorney said “that a fuller version of the videotape places his remarks in a different context.” Three unnamed sources corroborate Mendoza’s account or Riley’s order; one named source “did not recall Riley explicitly saying that officers could shoot looters.”

Universal standards for the use of deadly force, up to this incident, allow police to shoot only to protect themselves or others from an imminent physical threat—“great bodily harm.” And, as the reporters note, martial law does not constitutionally exist in Louisiana. Nonetheless, then-Mayor Ray Nagin called for martial law in meetings with Riley and used the phrase on the radio. Nagin, like Scott, refused to comment.

The team reports that it remains unclear with whom the orders originated or “whether they were heard by any of the officers involved in shooting 11 civilians in the days after Katrina.”

What everyone agrees on is that Riley did order his captains to “take back the city.” Samuel Walker, professor emeritus at the University of Nebraska at Omaha and author of 13 books on police, civil liberties, and criminal justice told the reporters such a statement is “absolutely wrong, [a] complete invitation to disaster.”