Monday, 24. October 2011
U.S. Embraces Tool of Despots
Recently, Mark Hosenball dropped the bombshell that a secret panel of White House Security Council members meets to draw up a “kill list” of American militants. Salon columnist Glenn Greenwald wrote a scathing critique of the panel, comparing it to a notorious English court known as the “Star Chamber.”
“[A] panel operating out of the White House — that meets in total secrecy, with no known law or rules governing what it can do or how it operates — is empowered to place American citizens on a list to be killed by the CIA, which (by some process nobody knows) eventually makes its way to the President, who is the final Decider. It is difficult to describe the level of warped authoritarianism necessary to cause someone to lend their support to a twisted Star Chamber like that.”
The Star Chamber, an English court dating back to the middle ages, reportedly was named for the stars on the ceiling of the courtroom, located at Westminster Palace. Over time, it grew increasingly powerful and corrupt. By the 17th century, under Charles I, it had become a vehicle for prosecuting political dissent. The court’s procedures made it virtually impossible for defendants to get a fair hearing and served as a rubber stamp for the monarchy.
“Court sessions were held in secret, with no indictments, no right of appeal, no juries, and no witnesses. Evidence was presented in writing. Over time it evolved into a political weapon, a symbol of the misuse and abuse of power by the English monarchy and courts.”
The Star Chamber also punished religious dissent, ultimately driving the Puritans to seek refuge in North America’s wilderness. Their descendents would form a new nation and endow it with laws that prohibited Star Chamber abuses. Today, “star chamber” is a pejorative term used to describe any administrative body with “strict, arbitrary rulings and secretive proceedings” that “cast doubt on the legitimacy of the proceedings.” Notwithstanding its infamous past, the Star Chamber appeals to government officials who abhor accountability.
The panel that authorized the killing of U.S. citizen Anwar al-Awlaki is the most public U.S. example of a star chamber–but it is far from the only one. The federal government operates a network of star chamber courts administered by government agencies for the purpose of hearing appeals from military and civilian federal employees stripped of their security clearances. Many of those employees are whistleblowers who have disclosed government wrongdoing, thus implicating senior officials. Senior officials use the star chambers to punish whistleblowers, to discredit their disclosures and to discourage other employees from exposing negligence, waste and corruption. Existing whistleblower protection laws are helpless to protect federal employees with security clearances from agency reprisal.
Security clearance star chambers violate the U.S. Constitution’s due process protections by presidential order–Executive Order (E.O.) 12968. These courts go by a variety of names. The U.S. Department of Agriculture (USDA) Star Chamber is the “Personnel Security Review Board.” The Department of Defense (DOD) calls its star chamber the “Department of Hearings and Appeals.” Each federal agency interprets the executive order differently, and some—for example, USDA—actually provide less due process than E.O. 12968 allows. All are offensive to modern notions of justice, but none have been held accountable. Government officials argue that national security requires the suspension of due process; but, a close examination of the appeals process shows that the government’s claim is a fraud.
“Due process” is defined as “a fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one’s life, liberty, or property.” In addition, it is a guarantee that a law “shall not be unreasonable, arbitrary, or capricious.”
The U.S. Constitution lists due process rights primarily in the ten amendments known as the Bill of Rights. Amendment V states that no one may be “deprived of life, liberty, or property, without due process of law. “Amendment VI defines due process as “the right to a speedy and public trial, by an impartial jury; the right “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.” Amendment VII applies those jury trial rights to civil cases as well as criminal cases. Amendment XIV, adopted in 1868, guarantees equal treatment under the law.
By contrast, E.O. 12968 denies a federal employee the right to a public hearing (an important check on judicial corruption), the right to be confronted with witnesses against him, the right to present his own witnesses, and the right to an impartial jury. With these restrictions, the courts enable agencies to orchestrate a hearing’s outcome. An agency can freely smear an employee with hearsay and innuendo–even allegations from officials implicated in wrongdoing–secure in the knowledge that the employee’s attorney can never cross-examine the sources. Agency officials also get to select the agency employees who will review the evidence—which must be written–and render a decision.
Adding insult to injury, federal agencies may further limit the amount of due process allowed. For example, USDA’s appeals process arbitrarily limits the hearing to one hour, and allows the agency to provide only a “brief” statement of the charges (which may be impossibly vague) instead of the detailed explanation required by E.O. 12968. One particularly Kafkaesque provision denies the employee any opportunity to appear before the panel that will evaluate his credibility and decide his fate. The provision makes a mockery of the concept of jury trials by enabling panel members to render unfair decisions without having to look their victims in the face. The panel’s decision, USDA says, cannot be appealed. In practice, even the pitifully thin due process described in USDA’s regulation have been denied; oversight and enforcement of the government’s star chambers being practically nonexistent.
Senior government officials would have us believe that national security is best served by allowing honest government employees to be railroaded out of their positions on the basis of unquestioned allegations from witnesses who may be lying to cover up corruption or neglect of national security threats. This defies logic, as well as public policy established by courts over the years. Denying due process to federal employees is, moreover, hugely hypocritical, because employees of federal contractors—whose whistleblowing poses no direct threat to federal officials–are allowed significantly more due process rights.
Unlike USDA employees, employees of USDA contractors are permitted a public hearing, may cross-examine the Department’s witnesses against them, and may introduce witnesses of their own (See here and here). An administrative judge, not a panel of laypersons, issues the decision, and the decision may be appealed to a board of three administrative judges. Meanwhile, until a final decision is reached, a contractor employee retains access to classified information–unlike the federal employee, whose access is suspended.
A December 12, 2003 report issued by the Department of Defense (DoD) Office of Inspector General’s (OIG) Office acknowledges the absurdity of that disparity in the treatment of federal and contractor employees.
“Whether an individual is a contractor, a civilian, or a military employee, the DoD security clearance allows access to the same categories of information. Therefore, access requirements and the application of the adjudicative guidelines for DoD security clearances should be consistent regardless of the process through which the clearance is received.”
The OIG solicited comments from senior DoD officials on the disparate treatment described in its report. The Under Secretary of Defense for Intelligence claimed “the report lacks clarity,” but would give no examples. The Deputy General Counsel slammed the report as “fundamentally flawed,” and also failed to provide examples. The Deputy Assistant Secretary of Defense and the Deputy General Counsel alleged there is no “persuasive” argument or “rationale” for creating a single appeal process. The Deputy General Counsel maintained that the current arrangement “appears to work well.” It would have been nice if the OIG had pointed out that the support expressed by these officials for star chambers violates their oath to support and defend the Constitution.
In addition to violating the Constitutional due process rights of federal employees, the star chambers’ separate-and-unequal appeals process violates the Constitution’s guarantee of equal protection under the law. The disparate treatment of federal and contractor employees is neither logical nor consistent with common notions of fairness. Depriving federal employees of due process “works well” mainly in hiding government wrongdoing.
Star Chamber abuses thwart accountability and silence whistleblowers, thus leaving the nation vulnerable to threats, foreign and domestic. Whistleblower cases like those of Franz Gayl and Thomas Drake illustrate the importance of whistleblowers to national security, and the extremes to which agencies will go to silence them. Gayl, a U.S. Marine Corps scientist, drew attention to DoD neglect of a battlefield request for urgent request potentially life-saving Mine-Resistant Ambush-Protected (MRAP) troop carriers. His commendable service may soon be terminated if superiors get their way. Drake, a computer specialist at the National Security Agency (NSA), angered supervisors by opposing the implementation of a computer program that violated privacy laws and was less efficient than another at intercepting terrorists. Not satisfied with firing Drake and destroying his career, the government also tried, unsuccessfully, to convict him of espionage.
The refusal of federal department heads to provide a reasonable, lawful rationale for establishing star chambers indicates that the motivation is neither reasonable nor lawful. Star Chamber courts deal in expediency, not justice. They efficiently dispose of terrorism suspects and trustworthy public servants alike, and protect corruption in preference to the public.
Perhaps the greatest peril of star chambers is their effect on public trust and domestic stability. The original Star Chamber’s abuses ended in a revolt by Parliament, which dissolved the court and freed its prisoners. A civil war followed, bringing an end to the king’s rule and, for awhile, the English monarchy–proving that the harder one grasps power, the more likely it is to crumble.
Linda Lewis is a policy analyst with degrees in emergency management and geosciences. Her experience includes 13 years as a policy analyst and planner for the U.S. government. During that time, she brought attention to serious deficiencies in government preparedness prior to the disasters that confirmed her analyses. Those included emergency communications (9/11 terrorist attacks), federal assistance (hurricane Katrina) and decision making (Columbia shuttle disaster).
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