Interesting, Obama Justice Department cribbing legal theories from Clarence Thomas?

[MadHound]

"According to a legal analysis by the Congressional Research Service, the Obama administration's legal reasoning for the form of "due process" required to target and kill a US citizen suspected of terrorism may have been inspired by an unlikely source: Supreme Court Justice Clarence Thomas.

Attorney General Eric Holder gave a speech last March outlining the administration's legal rationale for when the US is justified in killing its own citizens without charge or trial. "'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security," Holder said at the time. "The Constitution guarantees due process, not judicial process."

Well that legal argument, according to the CRS report first obtained by Steven Aftergood at Secrecy News, "seem[s] to conform more with Justice Thomas’s dissenting opinion in Hamdi, in which Justice Thomas argued that in the context of wartime detention for non-punitive purposes, 'due process requires nothing more than a good-faith executive determination.'" Hamdi was the case in which the Supreme Court ruled that the US government had the authority to detain American citizens captured fighting for the enemy on foreign battlefields, but that those captured citizens still had the right to challenge their detention. The administration, while publicly defending its targeted killing program, has thus far refused to share the legal memo that justified targeting American citizens suspected of terrorism with the public or even members of Congress."
http://www.motherjones.com/mojo/2012/09/obama-theory-due-process-targeted-killing-cribbed-clarence-thomas

If this is true, well, that's sad, just sad. A dissenting Thomas opinion, tsk, tsk. Of course you have to stoop pretty low to legally justify one man, any man, being the judge, jury and executioner. And if Thomas is anything, it is low.

[rhett o rick]

1. Why do you want the Republicans to win?

[ProSense]

2. Wait

"Interesting, Obama Justice Department cribbing legal theories from Clarence Thomas?"

...an absurd title based on a piece that offers as evidence "seem(s) to conform"?

What the hell kind of BS is that?

Serwer appears to be moving more toward irresponsible journalism typical of bogus MSM hit pieces. And this:

In 2008, while running for president, Barack Obama told an audience at Pastor Rick Warren's Saddleback Church in California that "I would not have nominated Clarence Thomas... I don't think that he was a strong enough jurist or legal thinker at the time for that elevation. Setting aside the fact that I profoundly disagree with his interpretations of a lot of the Constitution." Well, maybe he doesn't profoundly disagree with all of his interpretations.

Oh brother!

[immoderate]

4. Presidents don't voluntarily give up power.

--imm

[MadHound]

5. Well then, perhaps Obama should share that legal memo with us,

You know, the one that he has refused to share with anybody.

And as I remember, CRS was a trusted and well liked institution around here. . .back when they were going after Gonzales.

[ProSense]

6. So until then, it's OK to push "seems to" BS about Clarence Thomas? n/t

[MadHound]

7. Sure, if that will get him to release the memo,

I don't know about you, but I'm mighty damn curious about what Obama and Holder's legal reasoning is that one man, any man, can be judge, jury and executioner in this nation.

Besides, you've got to admit, it looks really, really bad when your publicly stated legal rationale looks so much like the dissenting opinion of one our worst Supremes ever.

[msanthrope]

32. I think the memo should be released to those with standing to challenge

their designations.

That would take care of national security concerns, while at the same time allowing those with standing to challenge.

This would mean that there is no public release of the memo, but the greater concern, which I am sure you have, is that the persons targeted have recourse.

[rhett o rick]

36. "What kind of BS is that?" Is that your counter argument?

You are critical of the OP's use of "seem(s) to conform" and yet you use "Serwer appears to be moving toward irresponsible journalism.." But you arent saying he is an irresponsible journalist, just appears to be moving toward that.

Seems to me that you as well as some others here are attempting to counter the author's claims or conclusions by attacking the author and/or poster, rather than addressing the argument itself.

[babylonsister]

3. Oh, goody! Thanks again for finding something that,

while not initially true, might be. Even your quote states " If this is true..." Keep on doing what you're doing. I have no earthly clue why you're doing it, but hey, the floor is always yours.
Ugh.

[Scootaloo]

8. He's Very Deeply Concerned™ is all.

[Summer Hathaway]

9. "If this is true"

is a subset of "some people are saying".

[MadHound]

10. Except for one thing,

Who are these people who are saying? The CRS, a highly respected arm of the government that does well respected public policy research. The same CRS that damned Gonzales and was lauded here and elsewhere for doing so.

Some people indeed.

[DevonRex]

12. Rumor-mongering is what it is IMO. They admit

they have no proof it's true by saying "if true". But that doesn't stop them from spreading the manure. And it didn't stop MadHound from bringing the manure here.

[Summer Hathaway]

13. It never does stop him, does it? n/t

[MadHound]

15. No actually it is a skilled legal analysis done by a reputable group,

A group that was lauded with praise for going after Gonzales, but now that they are questioning the Obama justice department, suddenly it's rumor mongering? Hypocrisy much?

Obama could put this all to rest by releasing the legal memo that explains his legal reasoning. Will you join in in calling for him to releasing that memo?

[DevonRex]

24. You do know that some of us either are attorneys

or have spouses or siblings or children who are attorneys or come from a long line of attorneys so it's kind of the family business, right?

[MadHound]

33. So, as an attorney, or somebody who is related to an attorney,

Or somebody who plays an attorney on TV, are you telling me that the Congressional Research Service isn't a well qualified, well respected non-partisan think tank? So I guess you didn't agree with their opinion of AG Gonzales as well.

[msanthrope]

30. I think Obama should release the memo to those with standing to challenge SGDT status.

After all, I can see how if you were to challenge SGDT you would need that memo.

But I can't think of anyone who has standing who would come to court, can you?

[DevonRex]

42. There was an organization that challenged

during the Bush years - United States: Islamic American Relief Agency (IARA-USA) v. Gonzales (D.C. Cir. Feb. 13, 2007).
http://www.asil.org/ilib070220.cfm

But I just can't see an individual saying, "I think I'll challenge my classification before I leave for my next Al Qaeda camp. Maybe I'll call Orly Taitz. She'll file anything."

Oops.

[msanthrope]

44. So you've figured me out. Yes, those who have standing to challenge do tend to be

the miscreants most likely to avoid the courts.

[DevonRex]

45. Do you know anything about entertainment

law?

When actors make a movie do they have any rights as to how the movie will be over dubbed both in its original language and in other languages? In other words, can the entire meaning of the movie be changed without their consent, the lines spoken completely changed to dubbed dialogue the actors knew nothing about and which would have prevented them from accepting the roles to begin with?

[FSogol]

26. All the News that's fit to bash!

Last edited Sat Sep 15, 2012, 03:31 PM - Edit history (1)

[MadHound]

20. The reason I'm doing this is because I'm curious how in our system of justice,

An administration has come up with the notion that one man, any man, can be judge, jury and executioner. What, you don't find that troubling? You should.

[Octafish]

22. Thank you, MadHound.

Odd how the State's assaults on the Constitution - including basic Civil Rights - are of little import to so many DUers.

Those unfamiliar with the judicial fraud that is Clarence Thomas may want to GOOGLE Anita Hill, for starters.

Some things are more important than party. Justice, for starters.

[MadHound]

23. Oh, don't worry, many of those same DUer's found the assault on civil liberties important

Back when Bush was in office. Many of those same DUer's will once again find the assault on civil liberties important once again, as soon as another Republican is in office.

But while a Democratic president is sitting in the office, the issue of our civil liberties being under assault disappears completely for these folks. I find the hypocrisy amazing, amazing and disgusting.

[rhett o rick]

43. I hope he is doing it to promote transparency. You dont seem to argue the issue

but seem to be trying to get the poster to stop posting controversial issues. I think it is important for the President to openly support civil liberties. The court just ruled against the language in the NDAA stating that, " the writers, journalists and activists who were plaintiffs in the lawsuit had demonstrated actual and reasonably that their First Amendment-protected activities could subject them to indefinite military detention and ruled the public had a greater interest in preserving the First Amendment and due process rights than allowing law enforcement to have this tool." I believe the Pres Obama administration has appealed this decision.

It is very important to me to know where our government stands on indefinite detention. I dont understand attempts to silence these discussions.

[limpyhobbler]

11. So are we all ok with a President Romney having the power to kill US citizens abroad?

All it takes is an accusation of supporting terrorism, no proof, no public presentation of evidence or a trial.

[kenny blankenship]

21. And where is the limitation

to "abroad" coming from?

The President has discretion to strike out the name of anyone, anytime, and anywhere, so long as he has a conversation with a confidential adviser in an undisclosed location about it first. For extra "due process" goodness, they have this conversation on a regularly occurring basis: Hit List Tuesdays. It is a solemn occasion of state, with peanuts and brewskies bottled by the WH's own house servants. Biden DJs.

[progressivebydesign]

14. oh, you again. nt

[joeybee12]

16. It's NOT THomas' opinion, it's his law clerk's opinion...

Thomas doesn't understand the law at all...he can't think for himself.

[MadHound]

17. Well, if that is the case, that's worse. n/t

[Honeycombe8]

18. That's just one person's opinion. And it doesn't matter. It sounds like a "tortured" argument,

anyway. Thomas didn't say the const. only guarantees due process. Seems he was defining what due process is.

This is legalistic mumbo jumbo...the minor semantics that lawyers use and argue over, in the course of making legal arguments and drafting laws. But it doesn't matter in the end.

[MadHound]

19. No, actually if you read the article, it is the opinion of a group of respected people,

The Congressional Research Service, that highly esteemed, non-partisan Congressional think tank that we all cheered on when they were one of the only ones going after Gonzales and his tortured legal reasoning.

[SidDithers]

25. ...

Sid

[Ikonoklast]

27. A small dog seems to be a cat sometimes, if seen in the dark.

But it isn't a cat, nor will calling it a cat turn it into one.

[Luminous Animal]

28. K&R

[Tierra_y_Libertad]

29. So, now, due process equals some appointees deciding guilt and punishment? Lynch law?

[msanthrope]

31. Your Mr. Aftergood is conflating two different things--detained combatants and non-detained

Last edited Sat Sep 15, 2012, 04:24 PM - Edit history (1)

combatants. Now, lawyers who read this will understand what he is doing, and not be impressed, but I'm not surprised that non-lawyers will not make the distinction.

Thomas's dissent, as it applies here, points out the difficulty that the Hamdi plurality has raised with regard to their Eldridge application. But indeed, the plurality of Hamdi agreed with Thomas that notice does not extend to combatants on the battlefield. (And didn't extend with Boumediene, et al.)

Are you seriously suggesting that a member of AQAP or AQ must be given notice under Eldridge?

Please.

[MadHound]

34. Well, first of all, Aftergood is the one who obtained the CRS report,

The report that he is quoting from. Aftergood is not making the analysis, but rather the lawyers and other think tank personnel at the CRS are. So, you're essentially bringing your criticism to bear on the Congressional Research Service, a non-partisan think tank which, I assure you, know exactly what they are asserting and what they are suggesting.

Frankly, I trust their expertise far more than some internet commentator whose expertise apparently consists of obfuscating the matter at hand via the use of legal jargon and reference to obscure cases.

My suggestion for you, frame your argument in plain English without the reference to obscure legal cases.

[msanthrope]

37. No, not critiquing CRS. Critiquing Aftergood for conflating detainees and

non-detained combatant, because the CRS didn't do that.


"Obscure legal cases?" That made me laugh for two reasons:

Eldridge is discussed in the CRS report--in the very part where Hamdi and Thomas are. Did you not read the CRS report?

You should know the Eldridge test if you are talking about Due Process. Since that's the test to determine if Due Process was met.


Boumediene is progeny of Hamdi. Kinda important if you are talking about detainees. And it's not obscure--made the front page of the NYTimes not too long ago.

[MadHound]

39. So you are critiquing the reporter, not the report

So, let's go to what the report says:

"While Mr. Holder assessed that the interests on both sides of the scale are “extraordinarily weighty” in the
context of targeted killings,107 he did not articulate the Administration’s rationale for concluding that due
process in such cases does not require notice or an opportunity to be heard. Mr. Holder’s remarks with
respect to due process seem to conform more with Justice Thomas’s dissenting opinion in Hamdi, in
which Justice Thomas argued that in the context of wartime detention for non-punitive purposes, “due
process requires nothing more than a good-faith executive determination.”108 Justice Thomas would have
upheld the government’s asserted detention authority on the basis of the President’s determination as
comporting with the Due Process Clause without subjecting the determination to “judicial second-
guessing.”109 Moreover, in his view, proper application of the Mathews v. Eldridge test would have
resulted in the finding he advocated, because it is “obvious and unarguable’ that no governmental interest
is more compelling than the security of the Nation.”110 Moreover, he thought it difficult to explain why
detention would differ from other central war making functions, such as bombings of particular targets:
Because a decision to bomb a particular target might extinguish life interests, the plurality's analysis
seems to require notice to potential targets. To take one more example, in November 2002, a Central
Intelligence Agency (CIA) Predator drone fired a Hellfire missile at a vehicle in Yemen carrying an al
Qaeda leader, a citizen of the United States, and four others. It is not clear whether the CIA knew that
an American was in the vehicle. But the plurality’s due process would seem to require notice and
opportunity to respond here as well. I offer these examples not because I think the plurality would
demand additional process in these situations but because it clearly would not. The result here should
be the same.111
If Justice Thomas is correct that the Hamdi plurality would have found that the constitutional guarantee of
due process does not require notice and an opportunity to be heard be given to U.S. persons to be targeted
by missile strikes, then perhaps the Court would agree that the Due Process Clause is satisfied by
executive determination alone in accordance with law of war principles, or perhaps, by an assessment of
imminent risk to national security in a self-defense operation. Mr. Holder explained that operations that
“take place on a traditional battlefield” are not subject to the same legal requirements that he outlined for
targeted killings of senior operational leaders of enemy forces (who are U.S. citizens). This statement
could be interpreted to mean that intelligence standards may be less exacting during traditional military
engagements of opposing forces than in targeting of U.S. citizens selected in advance, or that there is no
obligation to capture if feasible or make a determination as to imminence of risk, but it is not clear how
the Due Process Clause is thought to figure into that assessment. It may be that some sort of assessment
of reasonableness of government action associated with a seizure subject to the Fourth Amendment forms
part of the analysis rather than a balancing of interests under the Fifth Amendment.112"
http://www.fas.org/sgp/crs/natsec/target.pdf

Hmm, sounds very much like what the article in my OP had to say. So, what are your critiques of this?

[msanthrope]

40. 111 talks of detainees and 112 talks of non-detained combatants. CRS is clear on this.

The reporter is not. He conflates the two.

The reference to Garner isn't coincidental.

[rhett o rick]

35. Well is he suggesting? "Are you seriously suggesting that a member of AQAP or AQ must be

given notice under Eldridge?" Or isnt he? Isnt that begging the question?

[msanthrope]

38. Well, he seems to be, but I'd love for a clarification before I ascribe that

to him.

[rhett o rick]

41. He who? The author or the poster? nm

[treestar]

46. the government will always take the position that it has a power

and the person challenging that can take the opposite side.

Clarence Thomas would have a lot of dicta out there favoring government power.

If the question in a legal case is that of the government' power, expect the government to argue the side of it having the power (or not violating the constitution by having it) every time, no matter who is president.

Thankfully we have a three part system. If the court finds against the President, the President has to actually give in an quit using that power. The rule of law, a marvelous thing. The President can always argue he has a power (he has free speech) but if the court finds he doesn't, it goes poof.