The guns, not-very-far-below

The Trump Administration has directed the armed forces of the United States to violate the Posse Comitatus Act (18 U.S.C. § 1385, original at 20 Stat. 152).

"The new “Cabinet order” was signed by White House Chief of Staff John Kelly, not President Donald Trump. It allows “Department of Defense military personnel” to “perform those military protective activities that the Secretary of Defense determines are reasonably necessary” to protect border agents, including “a show or use of force (including lethal force, where necessary), crowd control, temporary detention. and cursory search.”

While unsurprising in its disregard of both legalities and governmental norms - after all, this is the President that seems to think that the job of the Department of Justice is to prosecute his political enemies - this is a reminder that this road to military-government-hell has been paved with the "good intentions" of the USAPATRIOT Act (public Law 107-56 and 115 Stat. 272).

For those of us who have been shutting our eyes very tightly and trying to pretend that the past couple of years have been about "economic anxiety", "shaking things up", and "telling it like it is" it's time to face up to the dangerous road we've been walking since 9/11/2001. We the People gave the Bushies these tools in our fear and anger. We've never taken them away.

Now we have a barely-hinged real-estate grifter in the Oval Office who has grasped them with both hands and the eager intent to swing them against his enemies.

Are you his enemy?

If so, you may find out and regret, too late, that...

So in the Libyan fable it is told
That once an eagle, stricken with a dart,
Turned about and said, when he saw the fashion of the shaft;
"It is with our own feathers, not by others' hands,
Are we now smitten.”

Update 11/23: And, as always, it's worth mentioning that this entire nonsensical business is founded on a concatenation of lies, ridiculous lies, and bullshit. Immigration, legal and otherwise, is still not an existential threat to the economic, social, or political life of the United States.

There ARE some vast and difficult issues facing this nation.

Climate change. That's gonna be a biggie, perhaps THE biggest challenge we will face in our lifetimes and those of our children.

Unfettered plutocracy, since you can have democracy or plutocracy, but not both.

The normalization, as mentioned above, of imperial war based on ludicrous ideas like "fighting terrorism". It's one thing to be an empire. It's another to try and pretend NOT to be an empire while being one; republican Rome discovered how destructive that is, both to domestic politics and economics.

The return of open white supremacy, which, in a nation at least notionally predicated on equal justice under law, is viciously toxic - if the United States intends to return to the sort of open racism that characterized it for much of its existence then it cannot afford to continue to pretend to offer equal citizenship to all its people based on their allegiance to the ideals of its foundational documents.

But immigration? Please.

It profits a man nothing to sell his soul for the entire world.

But for immigration..?

My Little Droney; Simplicity is Magic!

Al finally brings to light the official answer to the question Ron Paul should have asked:

"The White House responded to Paul's concerns Thursday, when Press Secretary Jay Carney read a letter Attorney General Eric Holder sent to Paul at the top of his daily briefing. "It has come to my attention that you have now asked an additional question: 'Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?'" Carney read. "The answer to that question is no."

This does not appear to have penetrated the foot-thick skull of the man Chas Pierce likes to call "Senator Aqua Buddha"; his filibuster ran well into today for no more apparent reason than...well, because he's who he is and the Five Minute Rule still applies.

So the good news is that the rule of law still applies to the Land of the Free.

The bad news is that whether this is consolation to the survivors of these sorts of attacks we've been running in the less-paved portions of the world has not been determined.

Court of Drone Chamber

Frankly, I'm not sure what irks me more; the implication that the Attorney General of the United States considers that there is an "extraordinary circumstance" in which, without a declaration or war, without determining that you are in arms against the United States, but through secret evidence secretly reviewed that you or I may be executed without arrest, without charge, without trial, and without sentence, or the extraordinary slippery weasel-speak that said Attorney General uses to deliver this pronouncement.

Of course this would be an "extraordinary circumstance". That's the entire point. At present a U.S. citizen in Yemen or Pakistan accused of being an "al Qaeda leader" can - and has - been killed without legal recourse or any hope of pursuing such recourse. No, duh; his first fucking hint that he's on the Kill List is Mister Hellfire Missile sailing in through the bathroom window. We know that.

And the President of the United States has the absolute authority to kill without trial an American citizen in armed rebellion against the United States. There's a reason that the Army of the Potomac showed up at Antietam and not the Attorney General; the fucking Rebs were looking for trouble at the end of a Springfield and they found it in spades. That's what happens to rebels in arms. We know that, too

The question Paul was asking - and keep in mind that I yield to no one in my estimation of the Paulites as semianthropoid gomers and in this case, as Al points out in the comments, Paul's question was both intended as a "gotcha" and poorly phrased, to boot - was aimed directly at the gray area between the two.

Given that we don't seem to, either as a nation or as We the People, have problems with killing "them" over "there" but do have qualms about extrajudicial murder of "us" "here"...what happens if one of "us" "here" might - might - turn out to be one of "them" in the same way "they" are eligible for a missile-o-gram from Uncle Sugar? Not taken in arms. Not planting a bomb. Not in active combat. But accused by some unnamed informer of being a "person(s) he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons?"

For all that we have beavered away at our own protections under the law since 2001 it has always seemed to me that there is and should be a simple bright line defining the fundamental relations between a citizen of the United States and the U.S. government and between peace and war.

And that is, if that citizen is not openly in arms against that government, is located where the agents of conventional law enforcement may apprehend that person, and has not been convicted in open court of treason or proved beyond a reasonable doubt to be a rebel or an agent of a power at war with the United States, then that citizen has not forfeited the protections of the law. And if they wish to do harm to that citizen then it is incumbent on the U.S. government and its agents to do everything in their power to do that harm as they are required to do by the Constitution and federal statute.

And, if Holder and his department believe this to be true, then the answer to the question Paul should have asked is simple; No. No, I do not have the authority to summarily execute or otherwise do extrajudicial harm to this person, regardless of what "extraordinary circumstances" exist.

Instead, what Holder appears to be doing is doubling down on the precedent of Korematsu (a precedent that his own department had previously determined to be based on official error); that in times of danger the U.S. government is free to act in contravention of its own law, regardless of the fragility of the evidence (or the lack of evidence), to harm its own citizens.

Our government has done great harm to us citizens in times of crisis; indeed, one of the reasons that wars and emergencies are greatly to be feared is that they afford great opportunity for frightened or ambitious men to do great harm to the rule of law. But in the main our government has, upon reflection, been willing to admit that such harm WAS harm. Our courts have ruled against those actions, and later administrations have disavowed them.

This opinion appears to, instead, insist on the right to do such harm.

And whether it is done with a missile or with a knife, I cannot find that reassuring.

(h/t to Pierce for the original article and the link to the Holder document)

Perilous Seas

This post is about old "news".

The sad fact is that I've had a post simmering on the hob over at GFT and just haven't had the heart to finish it.

Because it depresses me just to look at it, for what it says about my country.

The roux that started it is found here; the now-public Department of Justice "white paper" laying out the grounds for executive killing of U.S. citizens in league with "Al Qaeda or its associates."

Let me start off by saying this; this isn't "news" in the sense that it is nothing new and nothing startling. The bit about eliding the legal limits on extra-legal killing of citizens is, a bit, but as the position paper spells out there are precedents there for the recommended military actions. This is who we are, and where we've been, since 2001. All this memo does is recapitulate the current views of the executive agencies of the U.S. government regarding the "law of war" of the "War on Terror".

No, what I find so miserably bleak about this is not what it does but what it promises.

For a moment let's step away from the specific circumstances involved, the "non-international conflict" between the United States and whatever it may define as "Al Qaeda and its associates". Let's try and remove the self-fanned furnace of fear and suspicion that fuels the sorts of flights of conspiracy-theory and terror-fantasy and look at the specific acts that this paper justifies.

It posits that the U.S. government can, and should, deploy military force against an individual if

"...an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.”

Most commentators have remarked, and worried, about the implications of the vague definition of such terms as "informed, high-level" and "activities". The primary concerns of the critics seem to be about both the very limited sorts of oversight on who gets be the Chooser of the Slain and what "evidence" they need to have to make that choice.

I want to suggest that our concerns, as citizens of a republic that is technically a "government of laws not of men", should be broader and deeper.

Because I want to argue that this memo is simply another link in the chain, the chain we have forged link by link since 2001, that is dragging us closer to a place we may not want to go, a place where the fundamental relationship between the nation-state, our nation-state, and individual people are sharply redefined.

First, I would posit that since the codification of the concept of the modern nation-state a system of law and the status of legal authority differentiates how states deal with each other and how they deal with individuals, persons subject to their own authority as well as foreign nationals.

Relationships between nations are dominated by the reality that there is no higher authority that can bind or loose those nations.

"Higher" levels of organization which do exist, such as the United Nations, have no legal authority, and in practice lack the power of force majeur, to impose conditions or judgements on contending nations.

Rulers of those nations, therefore, often have (or see themselves as having, which comes to the same thing) no practical recourse outside of armed force when dealing with disputes with other nations. There is no functional way to impose legal constraints on a sovereign state outside those imposed by the state itself. Ideally those nations find some way short of force to solve their issues, but failing that force of arms has and presumably will remain the ultimate argument of sovereigns. So we say that "in times of war the law falls silent".

But this rule has a corollary; nations do not make war on individuals, even during wartime. They may kill or maim those individuals as part of that conflict. But AS individuals, when taken as individuals - even as spies - they are dealt with under law, albeit often the laws of war.

A nation-state, at least in theory and typically in practice, that has a disagreement with one of its own citizens will prosecute that conflict through its legal system. Such a system might be corrupt, or misused, or ineffective, or biased...but the very basis of civil society, the place beyond Hobbes' "war of all against all" is that the individual can - must - feel secure that the nation must pursue him or her through the forest of the law.

And this even applies to persons citizens of or subject to foreign nations.

During wartime captured enemies may be tried for violations of the laws of war, or as spies. During the Cold War both foreign nationals and U.S. citizens were tried and convicted and even executed under the law for their actions.

Such citizens may be pursued through the laws of their home country, or may be extradited (or their extradition pursued) to face the rigors of the law of the pursuing nation.

But they remain, as individuals, within the boundaries of the law. Not before this time has the U.S. attempted to deal with individuals or groups of individuals as it has with other nations, arguing that no law exists, that such people should be attacked as a nation may be attacked because there is no alternative.

What I want to suggest that this memo should remind us, and warn us, of the deep, dark, dangerous waters we have ventured out upon with the passage of the 2001 Authorization to Use Military Force that give the President of the United States the authority "...to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Because, as the DOJ paper merely echoes, this is a revolutionary change in the way the United States defines war, nations, and individuals.

By making "organizations" and "persons" subject to military force this law gives the Executive the power to, in effect, define anyone as an enemy of the state, and as such unprotected by the traditional measures that have shielded individuals from the monstrous power of the modern industrial nation.

And - so long as this law remains in force - there is no legal recourse for any of us who are so defined.

Worse; given the veil of security around the entire process of collecting "evidence", of determining what are "future acts of terrorism", of what constitutes "aiding terrorists" it is entirely likely that an individual's first intimation that he or she was a terrorist would be the arrival of a missile through the living-room window.

We have all read of the recent fulminations of those Americans who are beyond incensed by what they see as the U.S. government's frightful plan to violate their rights under the Second Amendment. Groups, often angry groups, have rallied, protested, are even now speaking out in strident tones at the dreadful spectre of the loss of individual liberty inherent in the proposals now debated in various public fora.

But this...this vast and restless expanse of unlimited power, this immense, lethal sea-change in the relationship between the individual, whether foreign or citizen, and the U.S. government...remains there in public view largely not just unfought but unexamined. The broader implications - implications that frighten me when I consider the possibility that actions that I might take, say, to protest some act of my government or its allies might place me beyond all legal safety into that Hobbesean bourne from which few travelers may hope to return safely - are taken simply as an accomplished fact, the new reality of our world, the fixed bounds of the power of our nation and the settled relations between it and us.

I know this, and yet, like most of us I pass through the days without thinking about it, like a sailor who sails calm seas and gentle breezes, never considering what might happen if the winds began to rise and the sea turn rough. It is only when I am forced to contemplate the perils of the deep waters charted by such documents as this one that I am fearful of the storms we may be brewing for ourselves.

And, of course, these are the wastes to which these storms will drive you; from Charles Pierce's observations on the Brennan hearings today:

"It was most clear when Senator Ron Wyden of Oregon, a persistent critic of the administration's drone program, asked Brennan point-blank whether the president could order a drone strike on an American citizen inside the United States and Brennan didn't — or couldn't — give him an answer. What evidence, Wyden asked, does the president need to engage a drone strike? And could that power be used inside the United States?

"I have been a string proponent of being as open as possible," Brennan answered. "I believe we should optimize transparency and optimize secrecy and national security concerns. We can do both. The Office Of Legal Counsel advice established the boundaries, and we don't operate at those boundaries."

The man whom the administration has put up to head the CIA would not say whether or not the president of the United States has the power to order the extrajudicial killing of a United States citizen within the borders of the United States. (And a thousand heads on conspiracy websites explode.) And the hearing, remarkably, went on as though nothing untoward had happened.

He also couldn't answer straight out whether waterboarding is torture. He hid behind legalities as Carl Levin fumed. "I am not a lawyer," Brennan kept saying. People kept congratulating him for the blunt, straight answers he was giving. It was like watching an exotic tribe worship in its native tongue. This was not America as it would recognize itself. This was the worship of a different god."

And not, needless to add, a god of the bright shallows and clear skies, but a deity of an entirely different and stormy ocean.

Dumping on the intel...

I know I promised to back off but I saw this over at Greenwald's today and had to vent or chance losing the top of my head to a catastrophic loss-of-coolant accident.

So here's Scott Horton on the Gitmo task force report.

I note this because an old associate of ours is mentioned:

"The Obama Administration came to Washington promising to clean up the Bush-era detentions policy and make it conform to the clear requirements of law. Then it seems to have decided that the law wasn’t so convenient and that simply providing for unbridled executive authority à la Bush-Cheney wasn’t such a bad idea after all. In terms of Washington power politics, that decision seems to have taken the form of letting Robert Gates make the call on all these issues. The two figures in the Administration who took the most credible stance for implementing the Obama campaign-era promises on detentions policy -- Greg Craig and Phil Carter -- resigned within a few weeks of one another, offering no believable reasons for departing. Then press reports began to appear about secret prisons, operated by JSOC and DIA and applying rules different from those applied in the "normal" DOD prisons, including plenty of torture-lite techniques under Appendix M of the Army Field Manual"

I am hardly sentimental about most of the people we have swept up in these illegal rattissages. They are unlikely to have loved us before they were imprisoned and, probably, tortured, and they are even less likely to let us alone now. Playing catch-and-release with them is unlikely to result in flowers, rainbows and sparkle ponies in geopolitical terms.But this isn't about them. This is about us, and who we are, and who we want to be. We started by warring on nations that did not attack us. We proceeded from there to violate the spirit of our national charter, which explicitly forbids bills of attainder, imprisonment without cause, and torture. We have now arrived at a place where the Chief Bobo - the mere "executive" who is supposed to do nothing more than enforce the will of the People in Congress has issued orders to murder U.S. citizens.

And the nation's response? Either approval or unconcern.

We had this discussion so many times over at the old Intel Dump. Five, six, seven years have passed, and...what? The people who worried more about our national character, about the rule of law, about the fact that whilst our enemies have no capability to destroy us we can do just that without so much as a pistol shot fired are gone, and those who see no issue with donning the morals and methods of the secret prison and the legalized assassination are still in charge.

At the old Dump even those of us who felt that there WAS a good fight to fight in central Asia pretty much agreed that the whole "why do they hate us"? question was a no-brainer. They hate us when we lie about our means and methods, they hate us when we callously violate the principles we vaunt, they hate us when we murder and kidnap and imprison without evidence or trial. All the intel we have from the places we're fighting in confirm these things. They don't hate us for our "freedoms". They don't hate us for who we are. They hate us for what we do, and this is one of the most hateful.So have good intel but we prefer to dump all over it like incontinent poodles. We know better and yet we do it anyway. We have better ways and we choose to do the worse. We have the means and methods to be smarter and yet we deliberately choose to be fools. It's worse than a crime; it's a mistake, a huge, inescapable political and foreign policy mistake, and in it we are digging our own political graves, and the People seem to see nothing but a bed of flowers.

WASF.