Matt Bissonnette v. The Pentagon: Why The White House Wanted You To Believe Bin Laden Was Armed

The night Osama Bin Laden was killed, the President of the United States took to the airwaves:

“After a firefight, they killed Osama Bin Laden and took custody of his body.”

On May 8, 2011, less than a week later, Senator John Kerry, reigning Chairman of the Senate Committee on Foreign Relations, told Bob Schieffer:

“We need to shut up and move on about you know, the realities of what happened in that building.”

The next day, Navy Admiral Mike Mullen told Tom Brokaw:

“The silent special operations warriors also would like to fade back into the shadows and I hope that we can let them do that.”

In January’s State of the Union Address, the President said:

“All that mattered that day was the mission. No one thought about politics. No one thought about themselves.”

At a Monday campaign rally in Detroit, Joe Biden said:

“Osama Bin Laden is dead and General Motors is alive.”

“Bin Laden is dead.” End of story. The official version? “Firefight.”

But, now we have an unofficial version — “No Firefight” — provided by Mark Bissonnette, the retired SEAL, turned best-selling, somewhat author of “No Easy Day: The Firsthand Account Of The Mission That Killed Osama Bin Laden.”

What makes Bissonnette inconvenient is not that he was there. It is that Presidents — all Presidents — use the Bissonnettes of the world for political gain. They exploit soldiers with impunity, tacitly encouraging you to cower behind the military, thereby avoiding certain death at the hands of the enemy du jour.

In his State of the Union Address the President said:

“One of my proudest possessions is the flag that the SEAL Team took with them on the mission to get bin Laden.  On it are each of their names.”

Bissonnette hesitated when signing his name to that flag. His book expands the narrative to 2010 legal maneuverings implicating war crimes; maneuverings that this administration would rather not talk about, especially now.

The question of whether or not there was a firefight implicates law of war issues surrounding the definition of “imminent threat” and “hot battlefield.” The New York Times has already noted that Bissonnette’s book raises “questions about whether the leader of Al Qaeda posed a clear threat to the commandos who fired on him.”

This isn’t what you want two months before an election when you happen to be the first president to target your fellow citizens for death by robot.

Bill Of Rights Goods

Barack Obama is the United States’ first President and General Counsel, and his administration (perhaps more than any other) is operated by “great lawyers,” such as Attorney General Eric Holder, excerpted in the following clip from a speech he gave in March, at Northwestern University School of Law.

What the attorney general is saying is that on the one hand, he has the Bill of Rights which compels him to give you a judge and jury if he accuses you. On the other hand, if he doesn’t accuse you, the only thing he owes you is a missile.

The Director of the FBI says it better than I ever could.

I personally experienced similar sophistry last year, when I unwittingly became the only citizen to sue the United States for the purpose of ending the unconstitutional deployment of U.S. Armed Forces in the Libyan Civil War. The President’s defense in court and official statements was that Libya was not a war. Why? Because the 9,600 humanitarian missiles the President used to bomb that nation’s Down’s Syndrome Center For Children, and otherwise, were delivered by flying robots.

Too poor to shoot back? Not a war.

All presidents endeavor to control the narrative. This President redefines words that have plain meaning; terms like “battlefield,” “imminent threat,” and “war.” In September, the President flung open the trap door to the Whitehouse basement, thereby unleashing former Bush CIA Director John Brennan, on a fawning gathering at Harvard Law.

“The traditional conception of what constitutes an ‘imminent’ attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.”

“Broaden” means “imminent” means whatever we say it means. They’ve already broadened “battlefield” to mean “wherever the missile lands.”

Conflating The Enemy

On August 7, Benjamin Torrance, the President’s defense lawyer, engaged in the following exchange with a Federal judge in the matter of Hedges v. Obama:

THE COURT: Are you aware of any provision, constitutionally, which allows for the incarceration of an American citizen without trial?
MR. TORRANCE: It depends on what incarceration means.

Torrance, on at least three occasions, also cited Nazi Germany as policy-making precedent for contending with the conflated threat posed by an irregular militia comprised primarily of individuals who train on monkey bars, and who are apparently so few in number that they are incapable of even starting a forest fire in a nation plagued by drought.

Sunday night Bissonnette is going to make the following public statement to 60 Minutes’ Scott Pelley:

“We’re not there to assassinate somebody. We weren’t sent in to murder him. This was, ‘Hey, kill or capture.'”

In other words, Bin Laden — who brazenly boasted of slaughtering 3,000 innocent civilians — received better treatment than, Anwar Awlaki (a U.S. citizen accused of killing no one), who on September 30, 2011, was targeted for death by drone, while traveling through a desert.

Stated differently, there was no hot battlefield as required by the law of war, and the Bill of Rights — which applies globally — was ignored.

Two weeks later the President killed Awlaki’s 16 year old son, Abdulrahman, who was born in Denver in 1995. The locals say the boy was attending a barbeque when the President fried his ass. Ten days later the President went on Leno, where he bragged about the father, didn’t mention the son and — needless to say — Leno didn’t ask.

The official version is that Abdulrahman’s death was accidental. But, twenty-four million people live in Yemen. A cynic might say that dead men tell no lies and dead sons reveal no truths. Perhaps a cynic just did.

“’Their policy is to take out high-value targets, versus capturing high-value targets,’ said Senator Saxby Chambliss of Georgia, the top Republican on the intelligence committee. ‘They are not going to advertise that, but that’s what they are doing.’”

Chambliss, together with 92 of his senate colleagues, recently voted to authorize the President to perpetually detain U.S. citizens without trial, as the United States does with 14 dozen Muslims in Cuba; half of whom have been ordered freed by Federal judges, yet there they sit.


In April, Charles Taylor, became the first head of state since Nuremberg to be convicted of war crimes, prompting this remark from Taylor’s former prosecutor, David Crane.

“This is a bell that has been rung and clearly rings throughout the world. If you are a head of state and you are killing your own people you could be next.”

On leave from Yale Law School, Dr. Harold Koh is the legal advisor at the State Department. He is in charge of 175 lawyers. He answers to (“extraordinary clients”) such as the President (“an outstanding lawyer”) and the Secretary of State (“a remarkably able lawyer”).

In March 2010, Dr.Koh delivered the keynote address at the annual meeting of the American Society of International Law. Here’s the money quote:

“The President is actively looking at ways to assist the International Criminal Court with the definition of the crime of aggression. He has a number of serious concerns that keep me up at night.”

Three months later, Dr. Koh traveled to Kampala — the capital of Uganda — to attend a conference attended by members of the International Criminal Court.  The ICC was considering adopting a crime called: Act of Aggression — which, by definition, includes targeting individuals for death by robot.

On Wednesday, June 16th 2010, Dr. Koh reported back to his colleagues at the ASIL.

“We ensure total protection for U.S. armed forces and other nationals going forward. The net result is that the crime of aggression was put on the back burner until January 2017. I think the chance of a prosecution of U.S. officials is zero at this point.”

In the two years since the elimination of consequences for U.S. officials, drone strikes in Yemen have increased by 550% and Al Qaeda has morphed from a group of 100 thugs, to a militia of 1,000 individuals with a non-idealogical reason to attack the United States — revenge.

The “back burner” date of 2017 applies globally, thereby making the world less safe for the one billion individuals who do not have enough to eat, and find themselves waiting for Bill Gates to arrive with a misquito net. Is there any end to the suffering the United States is willing to impose on the world, under the guise of so-called “counterterrorism?”

A Lot Can Happen In A Decade

1860 – the year Lincoln was elected, some men were considered property. Ten years later those same men could vote. On September 10, 2001, the United States was still known as the nation of Nuremberg – the prosecutor of war crimes. A decade later it proudly seeks permission to commit them, and the party faithful cheer.

We’re meant to be citizens – not press secretaries. And yet, since September 11, 2001, whenever it is revealed that officialdom has engaged in evil, the narrative immediately pivots to how the information came to be known by citizens.

In my small book, the Post 9-11 Executive Summary goes something like this:

  • Two Harvard educated presidents.

  • One clumsy. One sophisticated.

  • One unilateral. One bilateral.

  • The clumsy one defined in part by torture. The sophisticated one now defined in part by the murder of his fellow citizens.

  • The clumsy one thumbed his nose at the International Criminal Court. The sophisticated one — together with some of the finest legal minds on the planet — read the 59 word Authorization To Use Military Force, signed into law by President Bush on September 18, 2001, and determined that the only way the President could zap his fellow citizens with missiles (without having to worry about sharing a cell with Chuck Taylor) was to obtain constructive immunity from prosecution until he retires from politics in January 2017.

The White House wants you to believe that Bin Laden was armed, because it wants you to believe the United States is not a bully. This is the hornet’s nest Bissonnette has — I suspect unwittingly — stirred up. This is why Bissonnette has already received threatening letters from Jeh Johnson, a devoted Obama acolyte and fellow Columbia alumus, who also happens to be general counsel for the Department of Defense.

Matt Bissonnette is well represented. Here’s hoping he doesn’t get Assanged.

END NOTE: Today’s post is brought to you by William Kunstler; attorney to Martin Luther King and Daniel Ellsberg.

Hedges v. Obama: Rape Is Rape. War Is War. Jail Is Jail. Agreed?

NEW YORK CITY — It is impossible to abide by a law you cannot understand and impossible to defeat a law that is perfectly clear. But, the President’s lawyers are trying to defeat the First Amendment anyway.

Congress shall make no law abridging the freedom of speech, or of the press.

Questions? Me neither. Reading level? Sixth grade (same year I stopped paying attention). Five injunctions — religion, speech, press, peaceful assembly, redress of grievances — in 42 words.

“Injunction” is George Washington’s word, not mine.

Chris Hedges, a U.S. citizen, war reporter and author, is using a powerful law — a law that should be known to every citizen — to petition a Federal judge to issue a permanent injunction against the President. (A preliminary injunction issued in May.)

The challenged language states the following in relevant part:

“The disposition of a person who substantially supported al-Qaeda, the Taliban, or associated forces may include detention without trial until the end of the hostilities.”

Hedges claims he has no idea what it means to substantially support associated forces, and that, accordingly, his First Amendment rights have been chilled and will continue to be chilled as long as this law is on the books.

Be honest — if you were Chris Hedges — knowing this law is on the books, would you engage in the otherwise First Amendment protected conduct of Skyping with a known member of Al Qaeda and uploading the resulting file to YouTube? I wouldn’t, and I say that as the only citizen to have sued the United States for the purpose of ending the unconstitutional participation of U.S. Armed Forces in the Libyan Civil War.

In 2009, the Administration issued this memo:

“It is neither possible nor advisable, however, to attempt to identify, in the abstract, the precise nature and degree of ‘substantial support,’ or the precise characteristics of ‘associated forces,’ that are or would be sufficient to bring persons and organizations within the foregoing framework. The contours of the ‘substantial support’ and ‘associated forces’ bases of detention will need to be further developed in their application to concrete facts in individual cases.”

Hedges’ concerns, therefore, are well-founded. Officialdom has taken great pains to not define the challenged language. The only thing worse than policy over law, is non-policy over law and that’s precisely what Hedges attacks.

Under questioning last month by U.S. District Judge Katherine Forrest (an Obama appointee), Ben Torrance — the President’s defense lawyer – echoed the foregoing memo:

“When we are talking about a battlefield, what an association is can mean a lot of different things.”

In Post-Constitutional America, “when we are talking about a battlefield,” we are talking about Planet Earth, which by definition includes the United States.

On the one hand, the Administration embraces ambiguity as a wholesale alternative to the Bill of Rights. On the other hand, the President’s attorney claims the law is very clear.

THE COURT:  So, would you agree with me that the statute we are talking about is open to interpretation?
MR. TORRANCE:  No. We think it is quite clear, actually.
THE COURT:  So you think it is very clear.
THE COURT:  Are you absolutely confident that the individuals who run the next Department of Justice will believe that the clarity of your interpretation is the same as the clarity of theirs?

Pointing to the President’s New Year’s Eve signing statement, political true-believers – who apparently have never heard of the 16 year old boy from Denver incinerated by a CIA missile — argue that Hedges has nothing to fear from this President:

“My Administration will not authorize the indefinite military detention without trial of American citizens.”

The judge calls this a “carefully parsed statement” because the law does not authorize “indefinite detention.” It authorizes “detention until the end of hostilities.”

The President, therefore, did not limit his options on New Year’s Eve. He simply spoke over the head of the law, or as Ben Torrance puts it:

“Indefinite is probably the wrong word, there could be perpetual detention.”

“Detention” is definite in the sense that you will definitely be detained until the end of hostilities. It’s “hostilities” that are permanent indefinite. This from the same President who just two weeks ago said:

“Rape is rape. And the idea that we should be parsing and qualifying and slicing what types of rape we’re talking about doesn’t make sense to the American people.”

Rape is rape and — take it from me — jail is jail and the Fifth Amendment guarantees that no person shall be deprived of life or liberty without due process of law. The Administration’s response to the Fifth Amendment is that the Bill of Rights kicks in upon accusal. If they don’t accuse you, the only process you’re due is a cell or a missile as defined by the law of war.

Hedges – and all citizens – have every right to demand the identical, exacting, specificity from Congress, as the President’s lawyer demands from Judge Forrest:

THE COURT: Are you aware of any provision, constitutionally, which allows for the incarceration of an American citizen without trial?
MR. TORRANCE: It depends on what incarceration means.

THE COURT:  Those cases that the government cites are different from cases which talk about the ability of the Executive Branch to interpret domestic military detention in a particular way.
MR. TORRANCE:  I’m not sure what domestic military detention is.

THE COURT:  Would you agree with me that the executive branch would not have the right to expand the definition of military detention on its own, that it doesn’t have the right to do that?
MR. TORRANCE:  Beyond what?

THE COURT:  Do you know whether or not anybody had been detained under the AUMF anywhere under, for military detention and placed in military detention for any religious activities?
MR. TORRANCE:  I don’t quite know what religious activities means.

THE COURT:  Do you know whether or not anybody has been placed in military detention for non-violent purely associational activities?
MR. TORRANCE:  I don’t know what that means.

THE COURT:  Let’s say propaganda on behalf of Al Qaeda.
MR. TORRANCE:  But what does on behalf of mean?

THE COURT:  Have you looked at it recently?
MR. TORRANCE:  That depends what recently means.

Citizens can learn from the clinic Torrance gives in forcing an official to explain herself.

Hedges is going to win this case in the Southern District for two reasons: (1) the Senate’s Radical Center – by a vote of 93-7 – made “a law abridging the freedom of speech, and of the press” and (2) Judge Forrest is a real judge. She is poised — unless someone gets to her — to become the first judge in the history of the republic to issue an injunction implicating war powers, precisely because this is the first time the legislature and the executive has laid the foundation for acts of aggression against the citizenry.

This represents a start in the struggle to reinstate the Bill of Rights.

One has to wonder whether the reason Hedges is the first plaintiff standing — as opposed to, say, the New York Times (his former employer) — is due to the fact that the challenged law is having the desired impact. How else does one explain the failure of the Times and the Post to join in this litigation and the need for some asshole with a blog to assume the responsibility of meaningfully reporting on the situation?

Regardless of what happens on the appeal that is sure to come, Judge Forrest’s preliminary injunction and the permanent injunction that is sure to issue any day, will provide future litigants with the insight necessary to browbeat our elected criminals, not in the streets — but in the courts — where a single citizen can occasionally (and more frequently than you imagine) move the needle in favor of the people. See, my memoir @ 56:34

Nobody wants to live in a country where citizens can be perpetually detained without trial, based on some official assertion by the individual who happens to be president.

THE COURT: Would you agree with me that there is nothing legally binding on a Romney administration in terms of the Obama signing statement as a matter of law?
MR. TORRANCE: I think that’s correct. Yes.

It is.

The irony of Hedges v. Obama is that the standard of clarity Ben Torrance demands of Judge Forrest, far exceeds the bare minimum even Chris Hedges himself attempts to impose on the Congress and the President.

It is no accident that we are where we are. It is not Presidents who have done this to us. It is our misrepresentatives in the Congress. As citizens, we quibble over our pet presidents’ acts of discretion, while ignoring their failure to perform official duties and provide honest services.

One could make the argument that we deserve perpetual detention.

Perhaps one just did.

The entire transcript of the August 7, 2012 Permanent Injunction Hearing in Hedges v. Obama is available here. The preliminary injunction enjoining the President from enforcing the Homeland Battlefield Provision is here.