Tag Archives: justice department

Flynn resignation offers Trump administration a crucial restart

Michael Flynn has resigned as national security advisor. (Chip Somodevilla / Getty Images)

On the 25th day of the Trump administration, its national security adviser, retired general Michael Flynn, was forced to resign.

The final blow came from reports that the Trump administration learned last month that the US Department of Justice warned that Flynn could be susceptible to blackmail from the Kremlin. The resignation also followed reports that Flynn misled US vice president Mike Pence and others about the extent of his discussions during the presidential transition with Russian counterparts regarding the lifting of the Obama administration’s sanctions on Moscow.

Some quick thoughts.

Continue reading Flynn resignation offers Trump administration a crucial restart

What’s the factual basis for killing Awlaki?

awlaki

Though we don’t necessarily know incredibly much more about the US government’s factual basis for the targeted killing in September 2011 of Anwar al-Awlaki, a US citizen, the release of an Obama administration memo earlier today by a federal appeals court sheds new light on the administration’s legal rationale:USflag

A federal appeals court in New York on Monday made public a redacted version of a 2010 Justice Department memo that signed off on the targeted killing of an American citizen, Anwar al-Awlaki, without a trial, following Freedom of Information Act lawsuits. The memo, signed by David Barron, who was then the acting head of the department’s Office of Legal Counsel and is now a federal appeals court judge in Boston, concluded that it would be lawful to target Mr. Awlaki for killing if his capture was not feasible. Intelligence analysts had concluded that Mr. Awlaki was an operational terrorist.

The Obama administration fought the disclosure, initially refusing to confirm or deny the memo’s existence. In January 2013, a Federal District Court judge ruled that it could keep the memo secret. But in April, the United States Court of Appeals for the Second Circuit ruled that portions of the memo containing legal analysis — but not those compiling the evidence against Mr. Awlaki — must be made public.

The memo argues that 18 U.S.C. § 1119, which addresses the foreign killing of US nationals, must incorporate the public authority exception, and it further argues that the exception permits either the US Department of Defense and/or the US Central Intelligence Agency to carry out the contemplated operation against Awlaki. 

The memo also argues that Awlaki’s US citizenship doesn’t preclude DoD or CIA action, citing Hamdi v. Rumsfeld, the 2004 Supreme Court ruling that, subject to certain due process requirements, permits the detention of a US citizen as an ‘enemy combatant.’

Sharper legal minds will parse the contents of the memo, parts of which were redacted, and it presents many obviously difficult questions:

  • Even if the US military is justified in killing Awlaki under the public authority exception, the CIA’s justification is a lot more controversial because it’s a US government agency, not the military. The heavy redactions in the memo, as it relates to the CIA, make the Justice Department’s rationale unclear.
  • The US government’s statutory basis for targeting Awlaki lies in the  Authorization to Use Military Force Against Terrorists (AUMF), originally enacted in 2001, which authorizes efforts not only against al-Qaeda, but also against forces  ‘associated with’ al-Qaeda, including Al Qaeda in the Arabian Peninsula (AQAP). The argument is that this as true in Yemen (which, the Justice Department attorneys admit, is ‘far from the most active theater of combat’ between the United States and al-Qaeda.’) as it is in Afghanistan or anywhere in the world that al-Qaeda and ‘associated forces’ operate. But that broad global-battlefield interpretation isn’t universally accepted, even among many members of the US Congress that enacted the AUMF.
  • The memo contemplates that Awlaki’s US citizenship bestows some protections, even in Yemen, under the Fifth Amendment’s Due Process Clause and the Fourth Amendment. As regards the Fifth Amendment, the memo again points to Hamdi, which uses a Mathews v. Eldridge balancing test. In a scenario where a US citizen/enemy combatant poses a continued and imminent threat, the Justice Department attorneys argue that the public interest far outweighs the private interest of guaranteeing due process. Though the memo also acknowledges that Awlaki’s targeting constitutes a ‘seizure’ under the Fourth Amendment, the memo again points to the ‘reasonableness’ balancing tests elucidated by the Supreme Court in prior rulings on the constitutionality of seizures.

Nevertheless, the true heart of this case isn’t necessarily the black-letter legal reasoning, fascinating and controversial though it may be. Throughout the memo, the Justice Department attorneys essentially assume Awlaki’s guilt as fact. That’s fine, because no one was asking the Office of Legal Counsel to assess Awlaki’s guilt. But it’s one thing to argue that the AUMF applies in full force to the US government’s ability to target enemy combatants who are US citizens, and it’s quite another thing to argue that Awlaki was an enemy combatant in the first place.

Even if you are willing to defer to the Obama administration’s interpretation on all of the issues of the law involved — the applicability of the AUMF, the applicability of the public authority exception, the non-applicability of the Fifth Amendment, the Fourth Amendment or any mitigating factors that accrue on the basis of US citizenship — we still don’t know how the US government determines how a US citizen can be lawfully targeted for legal force.

The most relevant question, still unanswered, is how the US government concluded that Awlaki crossed the line from ‘preacher spewing noxious opinions’ to ‘operational al-Qaeda militant.’

First, what specific actions did Awlaki take that caused him to be enemy combatant?

Secondly, on the basis of what evidence did the US government determine that Awlaki was an enemy combatant?  

Finally, does anything about the process that the US government deployed in targeting Awlaki meet any kind of standards for due process, let alone those typically granted to US citizens under the Fifth Amendment?

On all three questions, we don’t know the answer because the Obama administration won’t release any information. Until and unless it does, the evidentiary standard for assassinating a US citizen abroad seems to be ‘when high-level government officials  conclude it.’ Continue reading What’s the factual basis for killing Awlaki?

Clarke’s British reform failures a lesson as Holder pushes for historic turn on U.S. crime

holder

As U.S. attorney general Eric Holder makes a serious push for prison and justice reform in the United States, he would do well to look at a similar push across the Atlantic — Kenneth Clarke’s attempt to reverse decades of tough criminal law policies in the United Kingdom provides a cautionary tale.USflagUnited Kingdom Flag Icon

Holder announced yesterday in a speech to the American Bar Association that the U.S. justice department will seek to avoid mandatory sentences for non-violent, low-level drug-related offenses, and justice reform advocates largely cheered a welcome pivot from the ‘tough-on-crime’ approach to justice that’s marked U.S. policy for the past four decades throughout much of the ‘War on Drugs’ — drug-related offenses have largely fueled the explosion in the U.S. prison population.  Holder will instruct prosecutors in federal cases not to list the amount of drugs in indictments for such non-violent drug offenses, thereby evading the mandatory sentences judges would otherwise be forced to administer under federal sentencing guidelines.  That’s only a small number of prisoners because 86% of the U.S. prison population is incarcerated by state government and not by the federal government.

Holder called for ‘sweeping, systemic changes’ to the American justice system yesterday and attacked mandatory minimum sentences for non-violent offenders, which he said caused ‘too many Americans go to too many prisons for far too long and for no good law enforcement reason.’

That approach has left the United States with a prison population of nearly 2.5 million people (though the absolute number has declined slightly after peaking in 2008) and the world’s highest incarceration rate of 716 prisoners per 100,000 .  That’s more than Russia (484), Brazil (274) the People’s Republic of China (170) or England and Wales (148) and as Holder noted yesterday, the United States has 5% of the world’s population but 25% of the world’s prisoners.

Particularly damning to the United States is that 39.4% of all U.S. inmates are black and 20.6% are Latino, despite the fact that black Americans comprise just 13% of the U.S. population and Latinos comprise just 16%.  Holder yesterday cited a report showing that black convicts receive prison sentences that are around 20% longer than white convicts who commit the same crime.  Holder denounced mandatory minimums as ‘draconian,’ and made an eloquent case that U.S. enforcement priorities have had ‘a destabilizing effect on particular communities, largely poor and of color,’ that have been counterproductive in many cases.  Holder also made that case that in an era of budget cuts, America’s incarceration rate is a financial burden of up to $80 billion a year, and that reducing the U.S. prisoner population could shore up the country’s finances as well.

But Holder — and prison reform advocates that have emerged on both the American left and right — face a heavy task in reversing nearly a half-century of crime legislation that has largely ratcheted up, not down.

Just ask Kenneth Clarke, who until last September was the justice minister in UK prime minister David Cameron’s coalition government, who as one of the longest-serving and most effective Tories in government for the past four decades, faced a tough road in enacting prison reform in England and Wales.

Though its prison population and incarceration rate pales in comparison to that of the United States, the British justice system imprisons more offenders than many other countries in the European Union, such as France (101 prisoners per 100,000) or Germany (80).

Cameron faced a delicate task in finding a role for Clarke in his government back in mid-2010.  Clarke, a self-proclaimed ‘big beast’ of Tory politics got his start under ‘one nation Tory’ prime minister Edward Heath and found his stride under Heath’s successor, Margaret Thatcher.  He became John Major’s chancellor of the exchequer, guiding No. 11 from the dark days of the 1992 ‘Black Wednesday’ sterling crisis to a more robust financial position.  When Labour swept to power in May 1997 under Tony Blair, Clarke immediately became the most popular Conservative in the country, even though the significantly more right-wing and increasingly euroskpetic party thrice denied the pro-Europe Clarke its leadership.  While Clarke may have passed his glory days in government, his appointment as justice minister reflected that Clarke could still be useful in government.

Clarke’s biggest target as justice minister?  Reducing the number of offenders in English prisons and attacking what Clarke memorably called the ‘Victorian bang-’em-up prison culture’ in a landmark June 2010 speech: Continue reading Clarke’s British reform failures a lesson as Holder pushes for historic turn on U.S. crime