David Cole

  • October 24, 2013

    by Jeremy Leaming

    In the wake of new reports from human rights groups about the toll America’s drone warfare has had on civilians in Pakistan and Yemen, an expert in constitutional law and international human rights suggests in an ACS Issue Brief released today that the government could take a bit more action to enhance procedures to reduce risk of civilian deaths.

    Deborah Pearlstein, assistant professor at Cardozo Law School, writes in “Enhancing Due Process in Targeted Killing,” that “it is worth taking seriously what procedural due process requires in targeted killings. Both the Supreme Court and the Executive Branch have now embraced due process to assess the legality of various U.S. uses of force against Al Qaeda and associates. As the Court has long recognized, U.S. citizens are protected by the Constitution wherever they are in the world. Even when they are deprived of their liberty in wartime, due process affords all ‘persons’ a right to notice of the reasons for the deprivation, and an opportunity for their opposition to be heard once any exigency has passed.”

    Pearlstein’s examination of Supreme Court precedent and American military procedure around constitutional due process comes on the heels of new reports from Amnesty International and Human Rights Watch that focus on civilian casualties of America’s escalating use of drone warfare overseas to attack alleged terrorists. Human Rights Watch’s report, “Between a Drone and Al-Qaeda,” looks at six targeted killings in Yemen ranging from 2009 through 2013. The report concludes, in part, that two of those drone strikes “killed civilians indiscriminately in clear violation of the laws war; the others may have targeted people who were not legitimate military objectives or caused disproportionate civil deaths.”

    Pearlstein, in her Issue Brief, says one should not easily dismiss “the application of constitutional due process in targeting as either hopelessly impractical, or hopelessly inadequate ....” She adds that her work is intended to “help advance our thinking of what process should be followed in targeting decisions when we do.”

    We know very little about the Obama administration’s drone warfare procedures. But earlier this year a white paper prepared by attorneys in the Office of Legal Counsel (OLC) was leaked providing a glimpse into a rather troubling procedure. That paper was, according to news reports, was gleaned from a larger memorandum on targeted killings. The ACLU lodged a legal action to obtain the entire document. But the white paper alone, according to Georgetown University’s David Cole provides a blueprint for making extrajudicial killings easier. The OLC white paper appeared to give little thought to due process and greater justification for killing of alleged terrorists overseas, even if it means killing civilians as well.

  • July 11, 2013

    by Jeremy Leaming

    The secret court that hears government requests for spying on Americans' communications is a durable check against government overreach because it’s made up of esteemed, independent federal court judges and the lawyers representing the nation’s intelligence apparatus are really good at their jobs. At least that’s the take of a large number of government officials who support  sweeping surveillance programs, which the secret has approved.

    Last year the Foreign Intelligence Surveillance Court (FISA Court) did not deny or reject the 1,789 government FISA applications. Apparently 40 of applications were modified, but since the FISA Court’s actions are secret, we don’t know in what why they were altered. In 2010, Salon reported, “there were 1,511 applications, of which five were withdrawn and 14 modified.”

    This week James Comey, President Obama’s nominee to head the FBI, told a Senate committee that the FISA Court is no “rubber stamp” and that people just don’t understand the highly secretive court, George Zornick reported for The Nation. Comey also maintained that another reason the FISA Court rarely rejects government demands for more information about Americans is that the government’s attorneys work really hard to put together sound applications.

    But just as this defense of the FISA Court as a serious check is being built, more information is seeping out about the secret court’s work. The New York Times reported that the Court does more than secretly grant general warrants for the NSA to sweep up mass amounts of information about Americans. It is also issuing opinions on “broad constitutional questions and establishing important judicial precedents with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.”

    Ten of the FISA Court’s 11 independent federal judges, Salon’s Joan Walsh reports are appointed by U.S. Supreme Court Chief Justice John Roberts. The judges Roberts appointed are ones named to the bench by Republican presidents. “Over the last 12 years, they approved 20,909 surveillance and property search warrants and rejected only 10 government requests,” she added.

  • July 1, 2013

    by Jeremy Leaming

    Since disclosure of classified documents revealing the scope of United States’ surveillance programs there has been a collective shrug of the shoulders among mainstream or elite media. As noted here, the verdict from many in the mainstream media is that the surveillance programs revealed by Edward Snowden are a fair or necessary trade-off – we must give up a bit of privacy to ensure that the nation is safe from terrorists.

    Indeed, much of the focus of broadcasters, such as NBC’s David Gregory, has centered on where Snowden is and whether The Guardian journalist-columnist Glenn Greenwald should be viewed as aiding and abetting Snowden. Recently during a “Meet the Press” segment, Gregory asked Greenwald why he shouldn’t be “charged with a crime.” Greenwald, who along with other Guardian staffers, has reported on the material disclosed by Snowden, was hardly rattled by the broadcaster’s preening. Greenwald later tweeted, “Who needs the government to try to criminalize journalism when you have David Gregory to do it?” (For an entertaining takedown of Gregory, see Frank Rich’s response to a question from New York magazine about Greenwald’s role in reporting on the two massive surveillance programs that collect and store telephone communications and Internet communications of Americans. For example, Rich asked, “Is David Gregory a journalist? As a thought experiment, name one piece of news he has broken, one beat he’s covered with distinction, and any memorable interviews he’s conducted that were not with John McCain, Lindsey Graham, Dick Durbin, or Chuck Schumer.”)

    But outside the elite U.S. media, many others are not ready to let this one go, and not just because more information about the nation’s spying apparatus keeps coming. The Guardian recently published NSA documents that show widespread spying of the “European Union mission in New York and its embassy in Washington.” In fact the NSA documents reveal that 38 embassies and missions are being spied on by America’s ever-growing and unwieldy intelligence community. The disclosure is not going over well with some the country’s allies. Germany’s Chancellor Angela Merkel, for instance, said, “We are no longer in the cold war. If it is confirmed that diplomatic representatives of the European Union and individual European countries have been spied upon, we will clearly say that bugging friends is unacceptable.”

    Capturing and storing massive amounts of information on Americans’ communications should also be unacceptable or least spark sharper, ongoing debate, regardless of how we learned about the massive surveillance schemes. Without those disclosures we’d likely still be in the dark about those programs. In March, Sen. Ron Wyden (D-Ore.) asked Director of National Intelligence James Clapper during a hearing whether the NSA was collecting “any data at all on millions or hundreds of millions of Americans?” As Salon’s David Sirota notes, Clapper responded, “no, sir.”  

    Recently, I sat down with Georgetown Law Professor David D. Cole, a constitutional law and national security expert. (See his wrap-up of the Supreme Court’s latest term for The Washington Post.) I asked him to respond to pundits who argue that the surveillance programs are not terribly troubling and whether he thought the Foreign Intelligence Surveillance Court is a strong enough check on the intelligence community’s voracious appetite for more information about Americans.

    Cole (pictured) said he found the disclosures of the surveillance programs, “stunning and I think raise really serious questions both about our governance and about our privacy. They’re stunning; because I don’t think before The Guardian broke the story that anybody thought that the Patriot Act authorized the government to pick up phone data every time any American picks up the phone to call anywhere.”

    Some pundits express shock that civil rights groups or civil liberties advocates should be stunned by the NSA programs and many argue that they are harmless infringements on privacy that are outweighed by the government’s interest in protecting national security.

    Cole provides a counter.

    “I think there is a great deal to be concerned about,” he said. “We’ve seen in the past that these kinds of tools while adopted in the name of fighting national security inevitably get used more broadly, and abused to target people who the administration finds to be inconvenient or a dissenter or an enemy as President Nixon labeled them. So Cointelpro [Counterintelligence Program], the FBI’s program was initially an anti-Communist program and ultimately involved spying on people in the civil rights movement, the anti-war movement, the women’s movements, and the environmental movements. We don’t want our government to be engaged in that kind of practice and the best way to ensure that it isn’t is to ensure that it has strict limits on its surveillance powers.”

    Regarding the Foreign Intelligence Surveillance Court, which hears NSA surveillance requests in secret, Cole said it was a check, but that we should know more about it.

    “I think the fact the court exists [FISA Court] is a check in-and-of-itself, even if it ultimately, in almost all instances says yes,” Cole said. “However, I think it’s far too secret. Certainty, ongoing operations; there’s a need for secrecy. But the interpretations that the Court has given to the statutes that we think are constraining the government – we ought to know what those interpretations are.”

    While mainstream media outlets concentrate on the whereabouts of Snowden, bloggers, the ACLU and some members of Congress, such as Wyden, are calling for the government to provide more information about the NSA and its spying programs. At some point a few in the mainstream media might also catch on to what is important in this matter.

    See Cole’s entire talk below or by visiting this link.  

  • February 8, 2013

    by Jeremy Leaming

    The Obama administration is bending very little to accommodate the mounting calls for the release of legal reasoning for targeted killings of U.S. citizens abroad. So far the president has only agreed to provide legal documents regarding the use of drones and targeted killings to a couple of congressional intelligence committees.

    But Senate Judiciary Committee leaders, Chairman Patrick Leahy (D-Vt.) and Ranking Member Chuck Grassley (R-Iowa) in a Feb. 7 letter to President Obama are calling for more information.  

    The white paper leaked earlier this week, apparently providing a summary of a document crafted by a few attorneys in the Department of Justice’s Office of Legal Counsel (OLC) advanced wobbly -- some have said shoddy -- arguments that the administration’s counterterrorism policy, especially its use of drones, does not subvert constitutional principles. The white paper, in part, concluded that the president could order a targeted killing if the suspected terrorist posed an “imminent threat to the country,” capture would prove “infeasible,’ and that the operation “would be conducted in a manner consistent with applicable law of war principles.”

    Constitutional law experts, like Georgetown’s David Cole blasted the white paper, concluding it allows for the federal government to “kill its own citizens in secret.” The drone war, he explained has significantly reduced “disincentives to killing.

    Leahy and Grassley are not terribly impressed with the white paper either, saying in their letter, that it “was not an adequate substitute for the underlying legal analysis that we believed had been prepared by the Department’s [DOJ] Office of Legal Counsel (OLC) ….”

    The senators also note that the legal arguments in the white paper centered on core constitutional concerns, such as the Fourth Amendment (bars government from “unreasonable searches and seizures” and the Fifth Amendment (the Amendment’s Due Process Clause provides or is supposed to provide for a fair hearing before government can “deprive a person of life, liberty, or property.")  The Senate Judiciary Committee also has “direct oversight jurisdiction over the Department, including OLC.”

    For a president who came to power promising a more transparent government – Obama had been a sharp critic of the prior administration’s proclivity for secrecy – it seems that the legal analysis apparently calling for an outlandish extension of executive power should be made public for all, not just a few senators.

     

  • February 6, 2013

    by Jeremy Leaming

    The increasingly disturbing use of Reaper and Predator drones to kill suspected terrorists, and too often civilians alongside them, was apparently given the green light by some DOJ lawyers in the Office of Legal Counsel (OLC). But that’s not for certain since the Obama administration rarely talks about the drone war.

    But a leaked white paper apparently crafted by lawyers in the OLC may be a summary of a more expansive document – the ACLU is suing to find out. The paper, however, as The New York Times and others have quickly noted advances convoluted and radical arguments for an outrageous expansion of executive power.

    Constitutional law scholar and Georgetown University law school professor David Cole, in a piece for NYR blog explores, “how we made killing easy.” And Cole notes by the way that the Obama administration is battling “tooth and nail” the ACLU’s effort to force the release of the entire  legal document.

    The white paper argues that an informed, high-ranking government official can order the killing of a U.S. citizen integral to or associated with Al-Qaeda abroad if the person poses an “imminent threat of violent attack” against the country, the person is unlikely to be captured and that the killing operation would be conducted in accordance with laws governing war.

    The brief paper tosses aside due process in a strained effort to justify executive branch power, with essentially no oversight, to order the killing of terrorist suspects, even U.S. citizens.