02/11/14 – Marjorie Cohn – The Scott Horton Show

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All right, y'all, welcome back to the show.
I'm Scott Horton.
This is my show, The Scott Horton Show.
Our next guest today is Marjorie Cohn.
She is now at the Thomas Jefferson School of Law at, what, the University of San Diego?
Is that it?
And she's formerly, of course, the president of the National Lawyers Guild.
I'm sorry, did I botch the name of your university, Marjorie?
It's not, yeah, it's Thomas Jefferson School of Law.
Oh, okay.
Yeah, it's an independent law school.
Oh, I see.
Okay, so just drop, I got it right, just drop the second part.
Okay, good.
Right, right.
And you're the author of a brand new book coming out, well, a lot of books previously, but the brand new one is Drones and Targeted Killings, which, apropos to today's topic, first of all, thank you very much for joining us today.
Sorry for the disjointed introduction there.
I appreciate you coming on the show.
My pleasure, Scott.
Okay, and now, so yesterday, and they did this back last time around, too, the government announced in advance that they are conspiring to murder an American citizen overseas somewhere.
They handed the story.
It seemed like a very top-down official leak, not a whistleblower-type disclosure, right?
It was sort of an official government leak to Kimberly Dozier of the Associated Press, and they assert that there's an American citizen, member of Al-Qaeda, seemed like maybe they're referring to Pakistan, I don't know, and they don't know what to do about him, so they're going to kill him, or at least they're looking at it, and it didn't seem like any of the questions they were looking at were whether they had the authority to do so or not, but just, you know, whether it seemed right for, you know, relations with the country will be bombing, et cetera, like that.
I pretty much understand the story, right, you think?
Well, I think, Scott, that according to the AP reports, they've been weighing the benefits of killing a U.S. citizen versus the possibility of a likely outcry internationally, so they're concerned with the politics of it.
They're not concerned with the legality of it.
Eric Holder has redefined due process to say that the Justice Department is going to provide the due process.
Of course, that's the executive branch.
The due process is provided by the judicial branch.
That's the courts, and the courts are supposed to make a determination when, you know, are supposed to approve things that, you know, like this.
Due process means a notice of the charges against you and an opportunity to be heard, and yet they're circumventing this due process.
You know, another interesting thing that the AP said is that, according to a U.S. official, the Defense Department was divided over whether this man is dangerous enough to merit the potential domestic fallout of killing an American without charging him with a crime or trying him.
You know, the Supreme Court said in the Hamdi case, Hamdi versus Rumsfeld, during the Bush administration, that if the president is going to keep a U.S. citizen as an enemy combatant, then that person has to be given due process, and that means arrested, charged with a crime, brought to trial, and given an opportunity to defend himself, not just taken out with a drone, which, by the way, usually kills innocent civilians along the way.
So, you know, it doesn't seem like anything much has changed since the hoopla and the outcry when Obama gave his speech last May about, you know, how we're really just going to kill the bad guys, we're going to be really careful about it, we're going to obey the law, and that was shortly after the leak of a white paper, and this was a leak, it wasn't intended to be public, where the white paper actually says that the government can kill a U.S. citizen who's not on the battlefield, and some high government official, not a judge, but some high government official thinks that the target is a senior al-Qaeda leader who poses an imminent threat of a violent attack against the United States.
So how do they define imminent?
Well, according to this white paper, the U.S. citizen can be killed even when there's no clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.
So basically, we have this global battlefield where if there's someone anywhere who might be associated with al-Qaeda, according to a high government official, then Obama can authorize that he be taken out without any checks and balances, and this is illegal.
The only time that armed force can be used against someone who's not on the battlefield is where there is an imminent threat.
That means it's going to happen right away, that somebody is going to be attacking us.
And, you know, the Obama administration justifies these drone attacks, which, by the way, Obama has used much more extensively than Bush ever did.
The Obama administration, and Bush as well, says that these drone strikes are authorized under the Authorization for the Use of Military Force, the AUMF, that Congress passed a few days after 9-11.
But if you read the AUMF, it doesn't authorize this.
The AUMF allows the president to use force only against groups and countries that had supported the 9-11 attacks.
But when the Bush administration asked Congress at the time for open-ended military authority to deter and preempt any future acts of terrorism or aggression against the United States, Congress specifically rejected that open-ended military authority.
So Congress has not authorized this.
It's not clear whether Congress would authorize it.
And during the debate last year about these drone strikes and targeted killing, members of Congress from both the Republican and the Democratic parties demanded that potential American targets be given a chance to surrender and mount a defense in U.S. courts instead of just being killed without a trial.
Well, let me ask you this.
We've already seen the strikes, of course, on al-Awlaki and his son.
And the strike on al-Awlaki also killed another American citizen, Khan.
And then the son, there are various classified leaks, but official ones that, oh, that was some sort of accident, some kind of thing.
But in any case, they have killed American citizens and deliberately, certainly in the case of al-Awlaki Sr. over there.
But I wonder why you think that they don't go ahead and, say, for example, try why didn't they try him in absentia on a treason charge and go ahead, convict him and sentence him to death and then drone strike him?
Because then at least they would have the pretense of the rule of law, where instead they're reduced to this argument that if the two different hemispheres of Obama's brain agree or anyone he delegates the authority to, that that amounts to due process of law.
Well, you know, they could have done that and certainly they could have given him an opportunity to appear either personally or through counsel.
But, you know, the interesting thing is that the New York Times and this is, I think it was, yeah, it was yesterday.
No, today's New York Times.
Today's New York Times says that of the four Americans that, you know, Obama has admitted killing with the drone strikes including al-Awlaki, that, and this is from the New York Times, according to the White House, only Mr. al-Awlaki had been intentionally targeted.
Well, you had three Americans who were killed in the drone attack where al-Awlaki was targeted and then two weeks later, his son, al-Awlaki's 16-year-old son who had never been involved in any kind of terrorist group at all was sitting at a cafe, an outdoor cafe and was eating, I don't know if he was eating pizza, what he was eating and another drone, American drone, targeted him and killed him.
You know, this was not an accident and the administration has never explained why they killed this child.
But, you know, there's another thing that I think we need to talk about here, Scott and that is that yesterday, Jeremy Scahill and Glenn Greenwald wrote a piece in The Intercept about the NSA's secret role in this assassination program and evidently...
Hold that thought just for a second because I was hoping that you could answer why you think that they don't bother going through with any kind of rule of law procedure.
Is it just sort of the David Addington attitude that they want to set the precedent that they can do whatever they want?
Is that what Obama's up to here?
Because again, they could easily have convicted al-Awlaki in a court in Virginia, with or without him.
Well, they may or may not have.
They may or may not have.
I mean, sometimes they don't have the evidence.
You know, why didn't they arrest bin Laden and bring him to trial?
I mean, I know everybody cheered how wonderful bin Laden was assassinated but, you know, if Obama were going to stick to the rules that he set not just for U.S. citizens but for anybody in his May speech and in a fact sheet and a directive that he didn't release that was classified when the SEALs went into bin Laden's compound he wasn't armed.
They could have captured him.
They could have brought him back for trial.
You know, keep in mind that and this is important to keep in mind If there's such a thing as an enemy combatant in the world it was that guy.
He's not an American-born citizen like al-Awlaki and his boy.
Well, you know what?
Nobody deserves to be killed, taken out without due process.
Due process under our constitution protects everybody not just U.S. citizens.
And let me just tell you something the answer to that argument that, well, bin Laden's a bad guy.
We know he did it.
Let's just take him out.
After World War II, after the Holocaust where, you know, some of the absolute worst crimes in the history of man were committed by the Nazis there was a dispute among the leaders of the victorious countries and Winston Churchill said about what to do with the Nazi leaders and Winston Churchill said just take them out and shoot them and Justice Robert Jackson who was a U.S. Supreme Court Justice on leave to be the chief U.S. prosecutor at Nuremberg said, no, we can't do that.
If we don't provide due process for these people give them a fair trial even these Nazis who have done these horrible things then we will pass a poisoned chalice to future generations and they were tried and there's even some criticism about the trial that it wasn't fair enough these Nuremberg tribunals but some people were acquitted some people were convicted some people were actually put to death so when you have the Nazis who committed genocide war crimes crimes against humanity on a massive scale and due process was good enough for them then how do we get off saying that we're going to allow the president with no judicial or congressional oversight whatsoever to kill anybody he wants that he might suspect of being a bad guy you know he does these things called signature strikes where even if they don't have a name even if they don't know who they're targeting if people are present in the area where there are suspicious patterns of behavior they're dropping bombs from drones on them and killing lots and lots of innocent people and so I think it's important yes it's an outrage that they would do this to a U.S. citizen it's also an outrage and not only that illegal to do it to anybody the United Nations Charter which is a treaty the United States has ratified it's part of U.S. law under the Supremacy Clause of the Constitution says that the only time you can use military force is when is in self-defense or when the Security Council approves it neither of those two things have happened here now that doctrine has been expanded a bit to include protection against an imminent threat but there's you know these people are sitting around you know they're sitting drinking coffee you know on their porch they're not on the battlefield I'm sorry I've got to interrupt you because we're going to have to go out and take this break real quick but I hope that you can hang on through this short break I'm sorry I interrupted you I wanted to let you finish what you had to say about the new reporting of Scahill and Greenwald about the NSA and the drone program can you hang on with us yes ok great everyone it's Marjorie Cohen from the Thomas Jefferson School of Law a former president of the National Lawyers Guild and we'll be right back after this What was the only interest group in D.C. pushing war with Syria last summer?
AIPAC and the Israel Lobby What's your deal with Iran right now?
AIPAC and the Israel Lobby Why doesn't the president force an end to the occupation of Palestine a leading cause of terrorist attacks against the United States AIPAC and the Israel Lobby The Council for the National Interest is pushing back putting America first and educating the people about what's really at stake in the Middle East Help support their important work at councilforthenationalinterest.org Alright y'all welcome back to the show I'm Scott Horton I'm talking with one of the most targeted killings Marjorie Cohn Professor of Law at the Thomas Jefferson School of Law What a great name for a school of law right?
Alright So thank you very much for holding on through the break there Marjorie and now I guess where were we?
I know you know where you were Well I think it's important for people to know that Jeremy Scahill and Glenn Greenwald exposed a very very frightening practice in yesterday's edition of The Intercept and that is the NSA in the National Security Agency who's been collecting all of our phone calls and emails their secret role in the U.S. assassination program instead of using human intelligence they're using electronic surveillance so they're using cell phone tracking technology and then and then killing people based on these cell phone locations the problem is that first of all targets are increasingly aware that the NSA is relying on this geolocating and they've moved to thwart that tactic other people are unaware their cell phone is being targeted they lend their phone to friends children spouses and family members and there's a top secret NSA document that was leaked by Edward Snowden that confirms that the NSA played a key supporting role in the drone strike that killed Al-Awlaki they also cite by a U.S. military advisor that during one year in Afghanistan where the majority of drone strikes have taken place that unmanned vehicles drones were ten times more likely than conventional aircraft to cause civilian casualties and another NSA document provided by Snowden says that by 2009 for the first time in the history of the U.S.
Air Force more pilots were trained to fly drones than conventional aircraft in U.S. military combat behavior resorting to airstrikes in undeclared wars such as Yemen and Pakistan so this is very disturbing because here we have two illegal controversial immoral policies of the Obama administration that seem to be helping each other feeding each other and that is the NSA and we saw that last week Associate Justice Antonin Scalia said that hey in times of war the law falls silent and in fact he kind of mocked anyone who would be so naive as to think that we won't see for example another mass roundup of Americans maybe based on their heritage like what happened to the Japanese and some of the other things that happened to the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American people and the American