Curly Surmudgeon
2010-05-16 05:05:50 UTC
As a Constitutional Scholar Barak should know better:
Coffin_v._United_States:
"The principle that there is a presumption of innocence in favor of the
accused is the undoubted law, axiomatic and elementary, and its
enforcement lies at the foundation of the administration of our criminal
law. … Concluding, then, that the presumption of innocence is evidence in
favor of the accused, introduced by the law in his behalf, let us
consider what is 'reasonable doubt.' It is, of necessity, the condition
of mind produced by the proof resulting from the evidence in the cause.
It is the result of the proof, not the proof itself, whereas the
presumption of innocence is one of the instruments of proof, going to
bring about the proof from which reasonable doubt arises; thus one is a
cause, the other an effect. To say that the one is the equivalent of the
other is therefore to say that legal evidence can be excluded from the
jury, and that such exclusion may be cured by instructing them correctly
in regard to the method by which they are required to reach their
conclusion upon the proof actually before them; in other words, that the
exclusion of an important element of proof can be justified by correctly
instructing as to the proof admitted. The evolution of the principle of
the presumption of innocence, and its resultant, the doctrine of
reasonable doubt, make more apparent the correctness of these views, and
indicate the necessity of enforcing the one in order that the other may
continue to exist."
Fourteenth Amendment: "Due process"
Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the State
and district where in the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defence."
Fifth Amendment: "No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken
for public use, without just compensation."
397 U.S. 358 -- The United States Supreme Court decision held that when a
juvenile is charged with an act which would be a crime if committed by an
adult, every element of the offense must be proved beyond a reasonable
doubt, changing the previous standard of preponderance of the evidence.
[1] The case has come to stand for a broader proposition, however, which
is that in any criminal prosecution, every essential element of the
offense must be proved beyond a reasonable doubt. See, e.g., Apprendi v.
New Jersey, 530 U.S. 466, 477 (2000); Sullivan v. Louisiana, 508 U.S.
275, 278 (1993).[2]
All of which support the American policy of "Innocent until proven
guilty."
=========================begin===============================
Confirmed: Obama authorizes assassination of U.S. citizen
By Glenn Greenwald
n late January, I wrote about the Obama administration's "presidential
assassination program," whereby American citizens are targeted for
killings far away from any battlefield, based exclusively on unchecked
accusations by the Executive Branch that they're involved in Terrorism.
At the time, The Washington Post's Dana Priest had noted deep in a long
article that Obama had continued Bush's policy (which Bush never actually
implemented) of having the Joint Chiefs of Staff compile "hit lists" of
Americans, and Priest suggested that the American-born Islamic cleric
Anwar al-Awlaki was on that list. The following week, Obama's Director
of National Intelligence, Adm. Dennis Blair, acknowledged in
Congressional testimony that the administration reserves the "right" to
carry out such assassinations.
Today, both The New York Times and The Washington Post confirm that the
Obama White House has now expressly authorized the CIA to kill al-Alwaki
no matter where he is found, no matter his distance from a battlefield.
I wrote at length about the extreme dangers and lawlessness of allowing
the Executive Branch the power to murder U.S. citizens far away from a
battlefield (i.e., while they're sleeping, at home, with their children,
etc.) and with no due process of any kind. I won't repeat those
arguments -- they're here and here -- but I do want to highlight how
unbelievably Orwellian and tyrannical this is in light of these new
articles today.
Just consider how the NYT reports on Obama's assassination order and how
it is justified:
The Obama administration has taken the extraordinary step of
authorizing the targeted killing of an American citizen, the radical
Muslim cleric Anwar al-Awlaki, who is believed to have shifted from
encouraging attacks on the United States to directly participating in
them, intelligence and counterterrorism officials said Tuesday. . . .
American counterterrorism officials say Mr. Awlaki is an operative of
Al Qaeda in the Arabian Peninsula, the affiliate of the terror network in
Yemen and Saudi Arabia. They say they believe that he has become a
recruiter for the terrorist network, feeding prospects into plots aimed
at the United States and at Americans abroad, the officials said.
It is extremely rare, if not unprecedented, for an American to be
approved for targeted killing, officials said. A former senior legal
official in the administration of George W. Bush said he did not know of
any American who was approved for targeted killing under the former
president. . . .
"The danger Awlaki poses to this country is no longer confined to
words," said an American official, who like other current and former
officials interviewed for this article spoke of the classified
counterterrorism measures on the condition of anonymity. "He’s gotten
involved in plots."
No due process is accorded. No charges or trials are necessary. No
evidence is offered, nor any opportunity for him to deny these
accusations (which he has done vehemently through his family). None of
that.
Instead, in Barack Obama's America, the way guilt is determined for
American citizens -- and a death penalty imposed -- is that the
President, like the King he thinks he is, secretly decrees someone's
guilt as a Terrorist. He then dispatches his aides to run to America's
newspapers -- cowardly hiding behind the shield of anonymity which
they're granted -- to proclaim that the Guilty One shall be killed on
sight because the Leader has decreed him to be a Terrorist. It is simply
asserted that Awlaki has converted from a cleric who expresses anti-
American views and advocates attacks on American military targets
(advocacy which happens to be Constitutionally protected) to Actual
Terrorist "involved in plots." These newspapers then print this
Executive Verdict with no questioning, no opposition, no investigation,
no refutation as to its truth. And the punishment is thus decreed: this
American citizen will now be murdered by the CIA because Barack Obama has
ordered that it be done. What kind of person could possibly justify this
or think that this is a legitimate government power?
Just to get a sense for how extreme this behavior is, consider -- as the
NYT reported -- that not even George Bush targeted American citizens for
this type of extra-judicial killing (though a 2002 drone attack in Yemen
did result in the death of an American citizen). Even more strikingly,
Antonin Scalia, in the 2004 case of Hamdi v. Rumsfeld, wrote an Opinion
(joined by Justice Stevens) arguing that it was unconstitutional for the
U.S. Government merely to imprison (let alone kill) American citizens as
"enemy combatants"; instead, they argued, the Constitution required that
Americans be charged with crimes (such as treason) and be given a trial
before being punished. The full Hamdi Court held that at least some due
process was required before Americans could be imprisoned as "enemy
combatants." Yet now, Barack Obama is claiming the right not merely to
imprison, but to assassinate far from any battlefield, American citizens
with no due process of any kind. Even GOP Congressman Pete Hoekstra,
when questioning Adm. Blair, recognized the severe dangers raised by this
asserted power.
And what about all the progressives who screamed for years about the Bush
administration's tyrannical treatment of Jose Padilla? Bush merely
imprisoned Padilla for years without a trial. If that's a vicious,
tyrannical assault on the Constitution -- and it was -- what should they
be saying about the Nobel Peace Prize winner's assassination of American
citizens without any due process?
All of this underscores the principal point made in this excellent new
article by Eli Lake, who compellingly and comprehensively documents what
readers here well know: that while Obama's "speeches and some of his
administration’s policy rollouts have emphasized a break from the Bush
era," the reality is that the administration has retained and, in some
cases, built upon the core Bush/Cheney approach to civil liberties and
Terrorism. As Al Gore asked in his superb 2006 speech protesting Bush's
"War on the Constitution":
Can it be true that any president really has such powers under our
Constitution?
If the answer is yes, then under the theory by which these acts are
committed, are there any acts that can on their face be prohibited?
If the president has the inherent authority to eavesdrop on American
citizens without a warrant, imprison American citizens on his own
declaration, kidnap and torture, then what can't he do?
Notice the power that was missing from Gore's indictment of Bush
radicalism: the power to kill American citizens. Add that to the litany
-- as Obama has now done -- and consider how much more compelling Gore's
accusatory questions become.
UPDATE: When Obama was seeking the Democratic nomination, the
Constitutional Law Scholar answered a questionnaire about executive power
distributed by The Boston Globe's Charlie Savage, and this was one of his
answers:
5. Does the Constitution permit a president to detain US citizens
without charges as unlawful enemy combatants?
[Obama]: No. I reject the Bush Administration's claim that the
President has plenary authority under the Constitution to detain U.S.
citizens without charges as unlawful enemy combatants.
So back then, Obama said the President lacks the power merely to detain
U.S. citizens without charges. Now, as President, he claims the power to
assassinate them without charges. Could even his hardest-core loyalists
try to reconcile that with a straight face? As Spencer Ackerman
documents today, not even John Yoo claimed that the President possessed
the power Obama is claiming here.
UPDATE II: If you're going to go into the comment section -- or anywhere
else -- and argue that this is all justified because Awlaki is an Evil,
Violent, Murdering Terrorist Trying to Kill Americans, you should say how
you know that. Generally, guilt is determined by having a trial where
the evidence is presented and the accused has an opportunity to defend
himself -- not by putting blind authoritarian faith in the unchecked
accusations of government leaders, even if it happens to be Barack
Obama. That's especially true given how many times accusations of
Terrorism by the U.S. Government have proven to be false.
UPDATE III: Congratulations, Barack Obama: you're now to the Right of
National Review on issues of executive power and due process, as Kevin
Williamson objects: "Surely there has to be some operational constraint
on the executive when it comes to the killing of U.S. citizens. . . .
Odious as Awlaki is, this seems to me to be setting an awful and reckless
precedent. " But Andy McCarthy -- who is about the most crazed Far Right
extremist on such matters as it gets, literally -- is as pleased as can
be with what Obama is doing (or, as Gawker puts it, "Obama Does Something
Bloodthirsty Enough to Please the Psychos").
UPDATE IV: Keith Olbermann's coverage of this story was quite good
tonight -- see here. [ http://www.salon.com/news/opinion/
glenn_greenwald/2010/04/08/olbermann/index.html ]
http://www.salon.com/news/opinion/glenn_greenwald/2010/04/07/
assassinations
========================end article=========================
This is also the reason I'm against the death penalty. There are lot of
bad people in this world. Many should be snuffed but giving any
government the power to murder its citizens without due process is beyond
dangerous.
Osama won. Beating George Walker Bush was simple. Now Osama has beaten
Obama and destroyed the legal framework and underpinnings of our nation
too.
Fear. You sheeple gave up our ideals.
"Any society that would give up a little liberty to gain a little
security will deserve neither and lose both." --Ben Franklin
Coffin_v._United_States:
"The principle that there is a presumption of innocence in favor of the
accused is the undoubted law, axiomatic and elementary, and its
enforcement lies at the foundation of the administration of our criminal
law. … Concluding, then, that the presumption of innocence is evidence in
favor of the accused, introduced by the law in his behalf, let us
consider what is 'reasonable doubt.' It is, of necessity, the condition
of mind produced by the proof resulting from the evidence in the cause.
It is the result of the proof, not the proof itself, whereas the
presumption of innocence is one of the instruments of proof, going to
bring about the proof from which reasonable doubt arises; thus one is a
cause, the other an effect. To say that the one is the equivalent of the
other is therefore to say that legal evidence can be excluded from the
jury, and that such exclusion may be cured by instructing them correctly
in regard to the method by which they are required to reach their
conclusion upon the proof actually before them; in other words, that the
exclusion of an important element of proof can be justified by correctly
instructing as to the proof admitted. The evolution of the principle of
the presumption of innocence, and its resultant, the doctrine of
reasonable doubt, make more apparent the correctness of these views, and
indicate the necessity of enforcing the one in order that the other may
continue to exist."
Fourteenth Amendment: "Due process"
Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the State
and district where in the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his defence."
Fifth Amendment: "No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or public danger; nor
shall any person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken
for public use, without just compensation."
397 U.S. 358 -- The United States Supreme Court decision held that when a
juvenile is charged with an act which would be a crime if committed by an
adult, every element of the offense must be proved beyond a reasonable
doubt, changing the previous standard of preponderance of the evidence.
[1] The case has come to stand for a broader proposition, however, which
is that in any criminal prosecution, every essential element of the
offense must be proved beyond a reasonable doubt. See, e.g., Apprendi v.
New Jersey, 530 U.S. 466, 477 (2000); Sullivan v. Louisiana, 508 U.S.
275, 278 (1993).[2]
All of which support the American policy of "Innocent until proven
guilty."
=========================begin===============================
Confirmed: Obama authorizes assassination of U.S. citizen
By Glenn Greenwald
n late January, I wrote about the Obama administration's "presidential
assassination program," whereby American citizens are targeted for
killings far away from any battlefield, based exclusively on unchecked
accusations by the Executive Branch that they're involved in Terrorism.
At the time, The Washington Post's Dana Priest had noted deep in a long
article that Obama had continued Bush's policy (which Bush never actually
implemented) of having the Joint Chiefs of Staff compile "hit lists" of
Americans, and Priest suggested that the American-born Islamic cleric
Anwar al-Awlaki was on that list. The following week, Obama's Director
of National Intelligence, Adm. Dennis Blair, acknowledged in
Congressional testimony that the administration reserves the "right" to
carry out such assassinations.
Today, both The New York Times and The Washington Post confirm that the
Obama White House has now expressly authorized the CIA to kill al-Alwaki
no matter where he is found, no matter his distance from a battlefield.
I wrote at length about the extreme dangers and lawlessness of allowing
the Executive Branch the power to murder U.S. citizens far away from a
battlefield (i.e., while they're sleeping, at home, with their children,
etc.) and with no due process of any kind. I won't repeat those
arguments -- they're here and here -- but I do want to highlight how
unbelievably Orwellian and tyrannical this is in light of these new
articles today.
Just consider how the NYT reports on Obama's assassination order and how
it is justified:
The Obama administration has taken the extraordinary step of
authorizing the targeted killing of an American citizen, the radical
Muslim cleric Anwar al-Awlaki, who is believed to have shifted from
encouraging attacks on the United States to directly participating in
them, intelligence and counterterrorism officials said Tuesday. . . .
American counterterrorism officials say Mr. Awlaki is an operative of
Al Qaeda in the Arabian Peninsula, the affiliate of the terror network in
Yemen and Saudi Arabia. They say they believe that he has become a
recruiter for the terrorist network, feeding prospects into plots aimed
at the United States and at Americans abroad, the officials said.
It is extremely rare, if not unprecedented, for an American to be
approved for targeted killing, officials said. A former senior legal
official in the administration of George W. Bush said he did not know of
any American who was approved for targeted killing under the former
president. . . .
"The danger Awlaki poses to this country is no longer confined to
words," said an American official, who like other current and former
officials interviewed for this article spoke of the classified
counterterrorism measures on the condition of anonymity. "He’s gotten
involved in plots."
No due process is accorded. No charges or trials are necessary. No
evidence is offered, nor any opportunity for him to deny these
accusations (which he has done vehemently through his family). None of
that.
Instead, in Barack Obama's America, the way guilt is determined for
American citizens -- and a death penalty imposed -- is that the
President, like the King he thinks he is, secretly decrees someone's
guilt as a Terrorist. He then dispatches his aides to run to America's
newspapers -- cowardly hiding behind the shield of anonymity which
they're granted -- to proclaim that the Guilty One shall be killed on
sight because the Leader has decreed him to be a Terrorist. It is simply
asserted that Awlaki has converted from a cleric who expresses anti-
American views and advocates attacks on American military targets
(advocacy which happens to be Constitutionally protected) to Actual
Terrorist "involved in plots." These newspapers then print this
Executive Verdict with no questioning, no opposition, no investigation,
no refutation as to its truth. And the punishment is thus decreed: this
American citizen will now be murdered by the CIA because Barack Obama has
ordered that it be done. What kind of person could possibly justify this
or think that this is a legitimate government power?
Just to get a sense for how extreme this behavior is, consider -- as the
NYT reported -- that not even George Bush targeted American citizens for
this type of extra-judicial killing (though a 2002 drone attack in Yemen
did result in the death of an American citizen). Even more strikingly,
Antonin Scalia, in the 2004 case of Hamdi v. Rumsfeld, wrote an Opinion
(joined by Justice Stevens) arguing that it was unconstitutional for the
U.S. Government merely to imprison (let alone kill) American citizens as
"enemy combatants"; instead, they argued, the Constitution required that
Americans be charged with crimes (such as treason) and be given a trial
before being punished. The full Hamdi Court held that at least some due
process was required before Americans could be imprisoned as "enemy
combatants." Yet now, Barack Obama is claiming the right not merely to
imprison, but to assassinate far from any battlefield, American citizens
with no due process of any kind. Even GOP Congressman Pete Hoekstra,
when questioning Adm. Blair, recognized the severe dangers raised by this
asserted power.
And what about all the progressives who screamed for years about the Bush
administration's tyrannical treatment of Jose Padilla? Bush merely
imprisoned Padilla for years without a trial. If that's a vicious,
tyrannical assault on the Constitution -- and it was -- what should they
be saying about the Nobel Peace Prize winner's assassination of American
citizens without any due process?
All of this underscores the principal point made in this excellent new
article by Eli Lake, who compellingly and comprehensively documents what
readers here well know: that while Obama's "speeches and some of his
administration’s policy rollouts have emphasized a break from the Bush
era," the reality is that the administration has retained and, in some
cases, built upon the core Bush/Cheney approach to civil liberties and
Terrorism. As Al Gore asked in his superb 2006 speech protesting Bush's
"War on the Constitution":
Can it be true that any president really has such powers under our
Constitution?
If the answer is yes, then under the theory by which these acts are
committed, are there any acts that can on their face be prohibited?
If the president has the inherent authority to eavesdrop on American
citizens without a warrant, imprison American citizens on his own
declaration, kidnap and torture, then what can't he do?
Notice the power that was missing from Gore's indictment of Bush
radicalism: the power to kill American citizens. Add that to the litany
-- as Obama has now done -- and consider how much more compelling Gore's
accusatory questions become.
UPDATE: When Obama was seeking the Democratic nomination, the
Constitutional Law Scholar answered a questionnaire about executive power
distributed by The Boston Globe's Charlie Savage, and this was one of his
answers:
5. Does the Constitution permit a president to detain US citizens
without charges as unlawful enemy combatants?
[Obama]: No. I reject the Bush Administration's claim that the
President has plenary authority under the Constitution to detain U.S.
citizens without charges as unlawful enemy combatants.
So back then, Obama said the President lacks the power merely to detain
U.S. citizens without charges. Now, as President, he claims the power to
assassinate them without charges. Could even his hardest-core loyalists
try to reconcile that with a straight face? As Spencer Ackerman
documents today, not even John Yoo claimed that the President possessed
the power Obama is claiming here.
UPDATE II: If you're going to go into the comment section -- or anywhere
else -- and argue that this is all justified because Awlaki is an Evil,
Violent, Murdering Terrorist Trying to Kill Americans, you should say how
you know that. Generally, guilt is determined by having a trial where
the evidence is presented and the accused has an opportunity to defend
himself -- not by putting blind authoritarian faith in the unchecked
accusations of government leaders, even if it happens to be Barack
Obama. That's especially true given how many times accusations of
Terrorism by the U.S. Government have proven to be false.
UPDATE III: Congratulations, Barack Obama: you're now to the Right of
National Review on issues of executive power and due process, as Kevin
Williamson objects: "Surely there has to be some operational constraint
on the executive when it comes to the killing of U.S. citizens. . . .
Odious as Awlaki is, this seems to me to be setting an awful and reckless
precedent. " But Andy McCarthy -- who is about the most crazed Far Right
extremist on such matters as it gets, literally -- is as pleased as can
be with what Obama is doing (or, as Gawker puts it, "Obama Does Something
Bloodthirsty Enough to Please the Psychos").
UPDATE IV: Keith Olbermann's coverage of this story was quite good
tonight -- see here. [ http://www.salon.com/news/opinion/
glenn_greenwald/2010/04/08/olbermann/index.html ]
http://www.salon.com/news/opinion/glenn_greenwald/2010/04/07/
assassinations
========================end article=========================
This is also the reason I'm against the death penalty. There are lot of
bad people in this world. Many should be snuffed but giving any
government the power to murder its citizens without due process is beyond
dangerous.
Osama won. Beating George Walker Bush was simple. Now Osama has beaten
Obama and destroyed the legal framework and underpinnings of our nation
too.
Fear. You sheeple gave up our ideals.
"Any society that would give up a little liberty to gain a little
security will deserve neither and lose both." --Ben Franklin
--
Regards, Curly
Regards, Curly