Tuesday, 24 April 2012

New Executive Order Gives President Power Over "Human Rights Abuses"

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Over the weekend, President Barack Obama signed an executive order granting himself power to impose sanctions against companies that are suspected of assisting the Syrian and Iranian regimes of employing information technology to carry out human rights abuses.

In the order announced by the White House on Monday, President Obama declares that:

the commission of serious human rights abuses against the people of Iran and Syria by their governments, facilitated by computer and network disruption, monitoring, and tracking by those governments, and abetted by entities in Iran and Syria that are complicit in their governments’ malign use of technology for those purposes, threaten the national security and foreign policy of the United States. The Governments of Iran and Syria are endeavoring to rapidly upgrade their technological ability to conduct such activities. Cognizant of the vital importance of providing technology that enables the Iranian and Syrian people to freely communicate with each other and the outside world, as well as the preservation, to the extent possible, of global telecommunications supply chains for essential products and services to enable the free flow of information, the measures in this order are designed primarily to address the need to prevent entities located in whole or in part in Iran and Syria from facilitating or committing serious human rights abuses.

The policies set forth in this order piggy-back on an earlier executive order signed in 1995 by President Bill Clinton (Executive Order 12957) wherein it was declared that:

the actions and policies of the Government of Iran constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States, and [I] hereby declare a national emergency to deal with that threat.

Apparently, then, President Obama believes that the monitoring of phone calls and Internet activity by the government of a nation is an abuse of the human rights of the citizens of that nation — unless that nation is the United States.

As with the signing of other similar presidential fiats, the White House trots out the familiar bogeyman of national security to justify the placement of new fetters on freedom.

Just as typical, moreover, is the use of the executive order to create a agency, board, or commission to study and address the harm posed by this newly identified threat to the homeland.

Executive Order 13606 doesn't fail to conform to either of those requirements.

The powers assumed by the President in this latest order are designed to put teeth into the body of a new commission, namely the Atrocities Prevention Board, whose formation was announced by the President during his remarks at the U.S. Holocaust Memorial Museum marking Holocaust Remembrance Day.

The goal of the APB is to first formally recognize that genocide and other mass atrocities committed by foreign powers are a “core national security interest and core moral responsibility.” The APB, will be comprised of senior government officials across nearly a dozen government agencies, and will conduct regular meetings in the White House to identify and combat these atrocities occurring overseas that pose a significant threat to America’s national security.

Naturally, in a move that makes sense only in Washington, D.C., the APB will also be charged with coordinating the actions of other agencies and departments with similar mandates so as to prevent ineffective and untimely responses to the various actions it highlights as threats. That is to say, President Obama has created a new government agency to make sure the work of existing government agencies is efficient and not duplicated.

In a letter sent by the President to Capitol Hill released by the White House, President Obama identifies the intended target of the clampdown:

The order blocks the property and interests in property, and suspends entry into the United States, of persons listed in the Annex to the order, as well as persons determined by the Secretary of the Treasury, in consultation with or at the recommendation of the Secretary of State:

to have operated, or to have directed the operation of, information and communications technology that facilitates computer or network disruption, monitoring, or tracking that could assist in or enable grave rights abuses by or on behalf of the Government of Iran or the Government of Syria;

to have sold, leased, or otherwise provided, directly or indirectly, goods, services, or technology to Iran or Syria likely to be used to facilitate computer or network disruption, monitoring, or tracking that could assist in or enable grave human rights abuses by or on behalf of the Government of Iran or the Government of Syria;

to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, the activities described above or any person whose property and interests in property are blocked pursuant to the order; or

to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to the order.

Again, as has become the modus operandi of those drafting new laws (and presidential decrees masquerading as such), the language in Executive Order 13606 is vague, including the lack of legally sufficient definitions of key terms, such as “materially assisted,” “sold, leased, or otherwise provided, directly or indirectly,” and “could assist in or enable serious human rights abuses.”

Laws with vagueness of this degree (and with much less potential for damage to the constitutionally protected liberties of the citizens of the United States) are routinely struck down by courts nationwide for being too vague. Why such a standard is not applied to federally passed statutes and presidential pronouncements given the effect of laws is remarkable and indefensible.

The statement issued following the signing of the order explains that this "novel sanctions tool"

allows us to sanction not just those oppressive governments, but the companies that enable them with technology they use for oppression and the "digital guns for hire" who create or operate systems used to monitor, track, and target citizens for killing, torture, or other grave abuses.

Is it too far-fetched to believe that the “novel tools” devised by our own government and implemented by the National Security Agency (NSA), the Department of Homeland Security (DHS), and other branches of the domestic spying bureaucracy will be used to “track, and target citizens” identified as potential threats to the homeland and to have them arrested and indefinitely detained per the powers granted the President by the National Defense Authorization Act (NDAA)?

Finally, there is a certain hubris demonstrated by a man who declares that “We Can’t Wait” for Congress to act and thus takes upon himself the mantle of chief executive and chief legislator, not only in violation of constitutional separation of powers but in direct contradiction of his own promises to end such abuses of power carried on by previous administrations.

Study these issues carefully and place them in the context of these words written by James Madison:

The accumulation of all powers legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective may justly be pronounced the very definition of tyranny.

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