Glenn Greenwald's Blog, page 112

The great generational threat

In just the past two months alone (all subsequent to the killing of Osama bin Laden), the U.S. Government has taken the following steps in the name of battling the Terrorist menace: extended the Patriot Act by four years without a single reform; begun a new CIA drone attack campaign in Yemen; launched drone attacks in Somalia; slaughtered more civilians in Pakistan; attempted to assassinate U.S. citizen Anwar Awlaki far from any battlefield and without a whiff of due process; invoked secrecy doctrines to conceal legal memos setting forth its views of its own domestic warrantless surveillance powers; announced a "withdrawal"plan for Afghanistan that entails double the number of troops in that country as were there when Obama was inaugurated; and invoked a very expansive view of its detention powers under the 2001 AUMF by detaining an alleged member of al-Shabab on a floating prison, without charges, Miranda warnings, or access to a lawyer.  That's all independent of a whole slew of drastically expanded surveillance powers seized over the past two years in the name of the same threat.

Behold the mammoth, life-altering, nation-threatening danger justifying this endless -- and ongoing -- erosion of safeguards, checks and liberties, from The Los Angeles Times (h/t Antony Loewenstein):

Defense Secretary Leon Panetta declared Saturday that the United States is "within reach" of "strategically defeating" Al Qaeda as a terrorist threat, but that doing so would require killing or capturing the group's 10 to 20 remaining leaders.

Heading to Afghanistan for the first time since taking office earlier this month, Panetta said that intelligence uncovered in the raid that killed Osama bin Laden in May showed that 10 years of U.S. operations against Al Qaeda had left it with fewer than two dozen key operatives, most of whom are in Pakistan, Yemen, Somalia, and North Africa.

In one sense, it's commendable that Panetta is acknowledging this, though he's doing so to protect the President from political attacks in the wake of his announced withdrawal of 30,000 troops from Afghanistan.  But in another, more important sense, Panetta knows that this disclosure won't even slightly impede the always-expanding National Security State and the War on Terror which justifies it -- just like the acknowledgment long ago that there were fewer than 100 Al Qaeda operatives in all of Afghanistan had no effect on our decade-long war there.  That's because -- as the above-described events of the last eight weeks demonstrate -- civil liberties assaults and expansions of executive power are not what the U.S. Government does in response to some actual problem; it's what the public-private consortium composing the U.S. Government is.  Terrorist villains are the pretext for, not the cause of, those policies, and they will continue irrespective of the scope or magnitude of Terrorism.

Indeed, even as he described the puny, broken, absurd state of Al Qaeda -- one that has, at most, produced a grand total of one attack on U.S. soil in the last decade and a handful of amateurish, low-level attempts thwarted by regular police powers, and kills fewer Americans each year than intestinal ailments -- Panetta claimed "that it would take "more work'"; that "now is the moment following the death of Bin Laden to put maximum pressure"; that "it was from Yemen -- not Pakistan -- that the U.S. faces the most potent threat of future terrorist attacks, from an Al Qaeda offshoot known as Al Qaeda in the Arabian Peninsula, where "the group has gained strength in recent months as unrest has swept through Sana, the capital, and large swaths of its rugged hinterlands, where militants are growing in strength"; and that we have to kill all the remaining operatives.  In other words, he offered multiple reasons why the War on Terror and the civil liberties abuses justified in its name must not only continue but be escalated.

Of course, just in case those propagandistic claims aren't sufficient -- we must wage war in multiple countries and seize ever-expanding surveillance powers to stop this group of two dozen Terrorist masterminds -- the U.S. is doing everything possible to ensure that Terrorism remains as large as a threat as possible:

A NATO air strike has killed at least 14 civilians, including eight children, in the eastern Afghan province of Khost, local police say. . . .The deadly air raid came a day after two children were reportedly killed in a separate air strike in southwest Ghazni province.

The killing of civilians by foreign troops is a major source of friction between Afghan President Hamid Karzai and his Western backers, and has soured the feelings of many ordinary Afghans towards foreign forces. . . . As violence has spread across the country, casualties have risen, and the United Nations said May was the deadliest month for civilians since they began keeping records four years earlier.

I long believed that the most patently irrational American policy -- the one that would cause future generations to look back in baffled disgust -- was the Drug War: imprisoning huge numbers of citizens for years and years for nothing more than possessing or selling banned substances to consenting adults.  But now I think it's this: that the U.S. Government is able to persuade the populace to continue to support and pay for blood-spilling and liberty-destroying policies in the name of Terrorism when nothing sustains and exacerbates the threat of Terrorism more than those very policies.  Just like the FBI continues to manufacture its own Terrorist plots that it then flamboyantly boasts of thwarting, the U.S. continues to generate the threat that justifies its National Security and Surveillance State.

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In the last week alone, U.S.-allied governments have done the following to their own citizens: killed "dozens of civilians" in Yemen; beaten anti-government protesters in Baghdad while the Iraqi Prime Minister threatened "bloodshed" and "blood . . . to the knee" if protests continued; attacked protesters in Cairo with arms; and beat opposition protesters in prison and branded them "traitors" in Bahrain.  As we recently learned, the U.S. cannot and will not "stand idly by when a tyrant tells his people there will be no mercy." What, then, can and should the U.S. do in the face of this oppression?  Don't we have more of a responsibility to act when such brutality is carried out by regimes that we arm, support and prop up than by ones we don't?

Reports: Obama pushing for cuts to Social Security, Medicare

This is at once an extraordinary and completely unsurprising headline:

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For months, the standard narrative among progressive commentators was that Republicans were outrageously exploiting the debt ceiling deadline to impose drastic entitlement cuts on a resisting and victimized Democratic President (he's weak in negotiations!), but The Post article makes clear that the driving force behind these cuts is the President himself, who is pushing for even larger spending cuts than the GOP was ready to accept:

President Obama is pressing congressional leaders to consider a far-reaching debt-reduction plan that would force Democrats to accept major changes to Social Security and Medicare in exchange for Republican support for fresh tax revenue. . . . As part of his pitch, Obama is proposing significant reductions in Medicare spending and for the first time is offering to tackle the rising cost of Social Security, according to people in both parties with knowledge of the proposal. The move marks a major shift for the White House and could present a direct challenge to Democratic lawmakers who have vowed to protect health and retirement benefits from the assault on government spending.

This morning's New York Times article similarly makes clear that it is the President who is demanding an even larger "deficit reduction" package than has previously been discussed.  Headlined "Obama to Push for Wider Deal With G.O.P. on Deficit Cuts," the article reports that "President Obama has raised his sights and wants to strike a far-reaching agreement on cutting the federal deficit" and that he "wants to move well beyond the $2 trillion in savings sought in earlier negotiations and seek perhaps twice as much over the next decade."  This is all in pursuit of "an agreement that ma[kes] substantial spending cuts, including in such social programs as Medicare and Medicaid and Social Security -- programs that had been off the table."  The President, as part of the package, is reportedly seeking some elimination of modest tax "loopholes" that benefit wealthy Americans to claim, absurdly, that there is "balanced" sacrifice.

It's true that these articles rely upon anonymous sources, though multiple such sources close to the negotiations -- from both parties -- are cited in consensus about what is taking place, and there are numerous other reports entirely consistent with these.  It's been bleedingly obvious for some time that the bipartisan D.C. political class and the economic factions that own it have been intent on massive cuts to Social Security and Medicare -- see George Carlin's 2007 video explanation below -- but the combination of deficit hysteria (repeatedly bolstered by Obama) and the manufactured debt ceiling deadline has, by design, created the perfect pretext to enable this now.  As one "Democratic official" told the Post: "These moments come along at most once a decade. And it would be a real mistake if we let it pass us by."  Naomi Klein's Shock Doctrine is not a GOP-exclusive dynamic.

How many people who voted for Obama in 2008 would have expected a headline like this a short two-and-a-half years later?  Many more than should have.  As Matt Taibbi explains in trumpeting Frank Rich's superb new New York article detailing Obama's subservience to Wall Street: 

Throughout 2008, it was hard to shake the feeling that this was a politician whose legacy could still go either way. There were an awful lot of troubling signs on the horizon in Obama's campaign, not the least of which being the enthusiastic support he was receiving from Wall Street.

Obama in part ran a very slightly economically populist campaign, but the tens of millions pouring into his campaign coffers from the very rich (and specifically from hedge funds) told all of us that we probably shouldn't expect those promises to come off. For a piece I wrote that summer, I asked people in Washington why Wall Street would be throwing money at a guy who was out there on the stump pledging to reach into their pockets:

"Sadly, the answer to that question increasingly appears to be that Obama is, well, full of shit. . . . These populist pledges sound good, but many business moguls appear to be betting that the tax policies, like Obama himself, are only that: something that sounds good. 'I think we don't want to make too much of his promises on taxes,' says Robert Pollin, professor of economics at the University of Massachusetts. 'Not all of these things will happen.' Noting the overwhelming amount of Wall Street money pouring into Obama's campaign, even elitist fuckwad David Brooks was recently moved to write, "Once the Republicans are vanquished, I wouldn't hold your breath waiting for that capital-gains tax hike."

Disgustingly, Brooks turned out to be right, and the narrative of the Obama presidency did end up turning sour, on that front anyway.

When I first began writing about politics in late 2005, the standard liberal blogosphere critique -- one I naively believed back then -- was that Democrats were capitulating so continuously to the Bush agenda because they "lacked spine" and were inept political strategists: i.e., they found those policies so very offensive but were simply unwilling or unable to resist them.  It became apparent to me that this was little more than a self-soothing conceit: Democrats continuously voted for Bush policies because they were either indifferent to their enactment or actively supported them, and were owned and controlled by the same factions as the GOP. 

Now, Democratic commentators -- mostly the President's most hardened loyalists -- continue to invoke this "he's-weak-and-inept" excuse for Obama, but the evidence is far too abundant to sustain it any longer.  As Paul Krugman -- long more clear-eyed than most progressives about Obama -- explained this week:

Since Obama keeps talking nonsense about economics, at what point do we stop giving him credit for actually knowing better? Maybe at some point we have to accept that he believes what he's saying. . . . , here's an unprofessional speculation: maybe it's personal. Maybe the president just doesn't like the kind of people who tell him counterintuitive things, who say that the government is not like a family, that it's not right for the government to tighten its belt when Americans are tightening theirs, that unemployment is not caused by lack of the right skills. Certainly just about all the people who might have tried to make that argument have left the administration or are leaving soon.

And what's left, I'm afraid, are the Very Serious People. It looks as if those are the people the president feels comfortable with. And that, of course, is a tragedy.

I think Krugman's "personal" explanation -- that Obama is far more comfortable with "neo-liberal centrists" (i.e., corporatists) than with actual liberals -- is basically true (Frank Rich put it this way:  "For all the lurid fantasies of the birthers, the dirty secret of Obama's background is that the values of Harvard, not of Kenya or Indonesia or Bill Ayers, have most colored his governing style. He falls hard for the best and the brightest white guys").  But it's also about ideology, conviction, and self-interest: Obama both believes in the corporatist agenda he embraces and assesses it to be in his political interest to be associated with it.  If it means "painful" entitlement cuts for ordinary Americans at a time of massive unemployment, economic anxiety and exploding wealth inequality, so be it.

Krugman understandably describes this dynamic in the context of the debt battle because that's the area on which he focuses most, but this is the same exact dynamic that drives the Obama presidency in almost every realm.  In the context of foreign policy and civil liberties, the public-private National Security State (the "Fourth Branch" of Government) is his Wall Street; military and intelligence officials and defense contractors are his Geithner/Summers/Dimon; and endless embrace of the Bush/Cheney Terrorism template of militarism and civil liberties assaults is his cutting of Social Security and Medicare.  This is who Barack Obama is; it's what drives his presidency in every realm, not just in economic policy.

What's particularly revealing in the Social Security/Medicare assault is the political calculation.  The President obviously believes that being able to run by having made his own party angry -- I cut entitlement programs long cherished by liberals -- will increase his appeal to independents and restore his image of trans-partisan conciliator that he so covets.  But how could it possibly be politically advantageous for a Democratic President to lead the way in slashing programs that have long been the crown jewels of his party, defense of which is the central litmus test for whether someone is even a Democrat?  The answer lies in how lacking in credibility is this statement, from The New York Times:

"Depending on what they decide to recommend, they may not have Democrats," Senator Sheldon Whitehouse, a Rhode Island Democrat, said in an interview. "I think it is a risky thing for the White House to basically take the bet that we can be presented with something at the last minute and we will go for it."

There's nothing "risky" about that.  Of course enough Democrats will get in line behind Obama's proposal to pass it once they're told they must.  Similarly, those progressive commentators who are first and foremost Democratic loyalists -- who rose up in angry and effective unison (along with actual progressives) to prevent George Bush from privatizing Social Security in 2005 -- will mount no meaningful opposition out of fear of weakening the President's political prospects.  White House aides will just utter Michele Bachmann enough times like some magical spell and snap more than enough people into fear-induced compliance.  The last thing the White House is worried about -- the last thing -- is its "base."

This was the primary lesson from the health care fight.  Obama loyalists who maligned anyone who resisted that bill always misunderstood the point.  It was never about the substantive belief in what became the very weak "public option" provision: at least not primarily.  Instead, it was about political power.

Congressional Democrats began the health care debate by categorically vowing -- in writing, by the dozens -- never to support any health care bill that did not contain a public option (on the ground that it would be little more than a boon to -- an entrenchment of -- the private health insurance industry).  But once they all abandoned that pledge when told that doing so was necessary to be good, loyal Democrats, it was clear from that point forward that they could be ignored.  They had no willingness to exercise political power; their partisan loyalty trumped any alleged convictions; their negotiation positions were silly bluffs; and they could always be counted on to snap dutifully into line at the end no matter how much their values were stomped on (and that debate followed the same template as the deficit battle: the White House publicly pretending to advocate for a public option while leading the way in private to ensure it never happened).

Obama knows full well that he can slash Medicare, Medicaid and even Social Security -- just like he could sign an extension of Bush tax cuts, escalate multiple wars, and embrace the Bush/Cheney Terrorism template recently known in Democratic circles as "shredding the Constitution" -- and have most Democrats and progressives continue to support him anyway.  Unconditional support ensures political impotence, and rightly so.  He's attending to the constituencies that matter: mostly, Wall Street tycoons who funded his 2008 campaign and whom he hopes will fund his re-election bid, and independents whose support is in question.  And he's doing that both because it's in his perceived interest and because, to the extent he believes in anything, those are the constituencies with which he feels most comfortable.

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The full video of the speech I gave on Obama and civil liberties in Chicago last weekend to the Socialism 2011 conference -- including a lively Q-and-A session that followed -- is now online here (relatedly, here is the video of the segment I did on Tuesday night on MSNBC's The Last Word show about Obama, Libya and war powers).

And here is the above-referenced, three-minute George Carlin video that explains pretty much everything about everything:

Major new leak investigation needed into Pakistan revelations

Over the past month, there has been a steady stream of leaks of classified information blaming Pakistan for all sorts of transgressions, and today, The New York Times prominently features the latest such incident, the most serious one yet.  Two "senior administration officials" -- a term that applies to a relatively small number of high-level Obama appointees -- have leaked highly classified information to that paper without (according to the article) authorization, a leak that is likely to cause very serious damage to U.S. relations with Pakistan:

Obama administration officials believe that Pakistan's powerful spy agency ordered the killing of a Pakistani journalist who had written scathing reports about the infiltration of militants in the country's military, according to American officials.

New classified intelligence obtained before the May 29 disappearance of the journalist, Saleem Shahzad, 40, from the capital, Islamabad, and after the discovery of his mortally wounded body, showed that senior officials of the spy agency, the Directorate for Inter-Services Intelligence, directed the attack on him in an effort to silence criticism, two senior administration officials said. . . .

The disclosure of the information in itself could further aggravate the badly fractured relationship between the United States and Pakistan. . . . The disclosure of the intelligence was made in answer to questions about the possibility of its existence, and was reluctantly confirmed by the two officials. "There is a lot of high-level concern about the murder; no one is too busy not to look at this," said one.

A third senior American official said there was enough other intelligence and indicators immediately after Mr. Shahzad's death for the Americans to conclude that the ISI had ordered him killed.

As is well-documented, the Obama administration has been conducting an unprecedentedly aggressive war to ferret out and punish those who leak classified information without authorization.  None of those cases, however, involves any documented or even potential harm to U.S. national security; instead, they resulted in the exposure of corruption, deceit, waste and illegality on the part of political officials, and were made by relatively mid-level or even low-level government functionaries.

Here, by contrast, we have two high-placed Obama officials leaking classified information without authorization in a way that could truly damage U.S. relations with a vital country (and the NYT article notes that the leaks were made by "several" Obama officials generally).  To underscore what a serious breach this is, the Pakistani government -- in response to the unauthorized disclosures -- publicly accused the Obama administration of being "part of" an "international conspiracy" to "malign" Pakistan's security forces. 

If any leak warrants a criminal investigation, it's one from high-level officials deliberately jeopardizing the nation's relationship with such a strategically important ally.  Will there be a Grand Jury convened to uncover the identity of the two high-level unauthorized leakers, or are such investigations only for low-level officials who disclose information to the citizenry that embarrasses the U.S. Government by exposing serious wrongdoing on the part of its officials?  Is the Obama war on whistleblowers devoted, as his defenders insist, to safeguarding the sanctity of vital national security secrets, or is it a campaign of intimidation to deter the exposure of high-level wrongdoing?  The administration's response to truly serious leaks committed by its own high level officials provides the answer to those questions.

The motives of Bradley Manning

In New York Magazine, Steven Fishman has a lengthy profile of Bradley Manning that purports to shed new light on the accused WikiLeaks leaker.  The only aspect of Fishman's article that's meaningfully new is a series of chat logs and other online communications Manning purportedly conducted with Zachary Antolak, a 19-year-old gay web designer whom Manning befriended.  Though the article focuses on a variety of Manning's emotional struggles in a way that -- as is typical for whistleblowers or anyone who engages in acts of meaningful dissent -- is supposed to make you believe his alleged actions were the by-product of psychological afflictions, it actually achieves the opposite. 

The emotional problems of loneliness and alienation Manning confronted are hardly atypical for a perceptive 20-year-old, particularly one with a long-estranged father dealing with issues of sexual orientation and gender identity who, after being raised in a tiny evangelical community in Oklahoma, finds himself deployed to Baghdad as part of the U.S. Army's brutal war in Iraq (the one who ends up looking truly psychologically unstable in this article -- and, as usual, deeply dishonest -- is government informant Adrian Lamo; see below).  What Fishman's article actually does is bolster the previous view of Manning's alleged leaks as motivated by noble and understandable horror at what the U.S. was doing in Iraq specifically and that region generally, and a resulting desire to take action to shed light on what he was seeing and to do what he could to stop it.

The highly edited chat logs purportedly between Manning and Lamo and previously published by long-time Lamo associate Kevin Poulsen of Wired already made clear why Manning -- if the chat logs are to be believed -- leaked these videos and documents.  In those chat logs, Manning described his growing realization of the evil of the the war in Iraq of which he was a part; he specifically recounted that his discovery that Iraqi "insurgents" rounded up and arrested by U.S. forces were actually guilty of nothing was explicitly ignored; and he explained that the documents he is alleged to have leaked revealed systematic deceit, illegality and exploitation on the part of the U.S. Government and its allied governments, and that only disclosure and transparency could trigger urgently needed reforms.  As Manning put it in those purported chats with Lamo when asked what he hoped to achieve:

hopefully worldwide discussion, debates, and reforms - if not, than [sic] we're doomed - as a species - i will officially give up on the society we have if nothing happens - the reaction to the [Collateral Murder] video gave me immense hope; CNN's iReport was overwhelmed; Twitter exploded - people who saw, knew there was something wrong . . . Washington Post sat on the video… David Finkel acquired a copy while embedded out here. . . . - i want people to see the truth… regardless of who they are… because without information, you cannot make informed decisions as a public.

The objectives Manning described there have, in a very short time, already been vindicated: the Baghdad video was viewed by tens of millions of people around the world, and even the anti-WikiLeaks Executive Editor of the New York Times, Bill Keller, has credited the release of the diplomatic cables allegedly leaked by Manning as playing a substantial role in triggering the revolts across the Middle East against mostly U.S.-supported despots.  Beyond that, so much of what we have learned about the world's most powerful factions over the last year has come from these leaks.  Those results, by themselves, mean Manning -- if he is the alleged leaker -- has done at least as much, if not more, to advance the causes of transparency, accountability, and freedom across the world than any single living individual.

The New York article adds more details to Manning's noble motives.  Like millions of people, Manning concluded that the war in Iraq, far from being a magnanimous endeavor to help the Iraqi people, was in fact an inhumane, monstrous act of aggression that indiscriminately killed huge numbers of innocent people; but unlike those millions of war critics, Manning decided to take action rather than remain passive:

For Manning, nothing was okay. In ­October 2009, he arrived at Forward ­Operating Base Hammer, a dusty back­water 40 miles from Baghdad. . . . Usually, there was a large central TV screen where an analyst could watch the war play in endless loop. You could zoom in on the raw footage from helicopters or even helmet cams. At times it felt like watching nonstop snuff films. . . .

An intel analyst sat at his work station and targeted the enemy, reducing a human being to a few salient points. Then he made a quick decision based on imperfect information: kill, capture, exploit, source. Any illusions Manning had about saving lives quickly vanished. At one point, he went to a superior with what he believed to be a mistake. The Iraqi ­Federal Police had rounded up innocent people, he said. Get back to work, he was told. . . .

He told the counselor about a targeting mission gone bad in Basra. "Two groups of locals were converging in this one area. Manning was trying to figure out why they were meeting," the counselor told me. On Manning's information, the Army moved swiftly, ­dispatching a unit to hunt them down. Manning had thought all went well, until a superior explained the outcome. "Ultimately, some guy loosely connected to the group got killed," the counselor said. To the counselor, it was clear: Manning felt that there was blood on his hands. "He was very, very distressed."

About that time, Manning later ­explained, "everything started slipping." Manning, it turned out, wasn't built for this kind of war. "i was a *part* of something … i was actively involved in something that i was completely against." The job wore down lots of soldiers. Some survived by becoming desensitized -- the blood and death goes right past them. Manning took it personally. According to the government, it was in November 2009, the same month that he reached out to the gender counselor, that ­Manning began to work with WikiLeaks' ­Julian ­Assange, "a candidate for the most dangerous man in the world," as Daniel ­Ellsberg, leaker of the Pentagon papers, later put it.

The notion that these reactions to wholly unjustified, massive blood-spilling is psychologically warped is itself warped.  The reactions described there are psychologically healthy; it's far more psychologically disturbed not to have the reactions Manning had. There are countless people who knew from the start, or who ultimately concluded, that the Iraq War was an act of supreme barbarism.  Many who so concluded -- especially among our political and media elite -- did nothing to stop it or bring accountability for those who caused it; Manning, by stark and commendable contrast, took action.  Which is the psychologically suspect behavior?  Manning was clearly motivated by the principle attributed by the New York article to Julian Assange, but espoused by countless heroic activists and philosophers throughout history: "Every time we witness an act that we feel to be unjust and do not act, we become a party to injustice."

The morality at play in the Manning persecution is mangled beyond belief.  It's perfectly conventional wisdom that the war in Iraq was an act of profoundly unjust destruction, yet normal, psychologically healthy people are expected to passively accept that there should be no consequences for those responsible (a well-intentioned policy mistake), while one of the very few people to risk his life and liberty to stop it and similar acts is demonized as a mentally ill criminal.  Similarly, the numerous acts of corruption, deceit and criminality Manning allegedly exposed are ignored or even sanctioned, while the only punished criminal is -- as usual -- the one who courageously brought those acts to light.  Meanwhile, Americans love to cheer for the Arab Spring rebellions -- look at those inspiring people standing up to their evil dictators and demanding freedom -- yet the American government officials who propped up those dictators for decades and helped suppress those revolts, including the ones currently in power, are treated as dignified statesmen, while a person who actually exposed those tyrants and played at least some role in triggering those inspiring revolts (Manning) rots in a prison after enduring 10 months of deeply inhumane treatment.

There's no doubt that it's illegal for a member of the military to leak classified or secret documents -- just as there was no doubt about the illegality of Daniel Ellsberg's leaks, or a while slew of other acts of civil disobedience we consider noble.  The fact that an act is legal does not mean it is just, and conversely, that an act is illegal does not mean it is unjust.  Many people enjoy hearing themselves condemn the acts of tyrants and imperial forces in the world. If the allegations against him are true, Bradley Manning knowingly risked his liberty to take action against those acts, in the hope of exposing those responsible and triggering worldwide reforms.  It's hard to dispute that these leaks achieved exactly that, but even if they hadn't, his conduct is profoundly commendable, and the world needs far more, not fewer, Bradley Mannings.

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Adrian Lamo has no relevance either for the Manning case or anything else, but just to underscore how thoroughly unreliable and deranged he is -- that, as I've documented repeatedly before, what comes out of his mouth at any given moment is designed exclusively to generate attention for himself and bears almost no relationship to reality -- just contrast what he's quoted as saying about Manning in this New York article with what he told me in an interview last year:

New York:

When Lamo was arrested, he'd been offended by the government prosecution-- "criminalizing curiosity," he called it. Now he was offended by Manning. "He's a traitor at best," Lamo said. . . . He was disgusted by the way in which Manning conflated his own precious moral awakening with the future of U.S. diplomacy. The leaks could "compromise our ability to make the world a better place, which we do in a lot of ways," Lamo later said.

Interview with me:

GREENWALD: Do you consider Bradley Manning to be a traitor? I had seen you use that word in a couple interviews that you did.

LAMO: Can you cite one so I can double-check and make sure it's a direct quote?

GREENWALD: Yeah. I think the quote was, "I'm not a traitor, and I wasn't going to harbor a traitor." And it was unclear, I mean, the context was you were asked why. So I didn't know if you meant that, that's why I'm asking in an open-ended way, regardless of what you've said in the past: Do you think he's a traitor?

LAMO: Well, in that case, I regret that statement. I don't think he's a traitor. I think. He did something not too different from what I did: break the law to accomplish what he believed to be a good purpose, and I apologized to a judge in tears for that, and I would be a hypocrite if I didn't still believe that it was wrong now.

There are many people in this case whose actions are disturbed, twisted, and unjust.  Bradley Manning is most assuredly not one of them.

Torture crimes officially, permanently shielded

In August, 2009, Attorney General Eric Holder -- under continuous, aggressive prodding by the Obama White House -- announced that three categories of individuals responsible for Bush-era torture crimes would be fully immunized from any form of criminal investigation and prosecution:  (1) Bush officials who ordered the torture (Bush, Cheney, Rice, Powell, Ashcroft, Rumsfeld); (2) Bush lawyers who legally approved it (Yoo, Bybee, Levin), and (3) those in the CIA and the military who tortured within the confines of the permission slips they were given by those officials and lawyers (i.e., "good-faith" torturers).  The one exception to this sweeping immunity was that low-level CIA agents and servicemembers who went so far beyond the torture permission slips as to basically commit brutal, unauthorized murder would be subject to a "preliminary review" to determine if a full investigation was warranted -- in other words, the Abu Ghraib model of justice was being applied, where only low-ranking scapegoats would be subject to possible punishment while high-level officials would be protected.

Yesterday, it was announced that this "preliminary review" by the prosecutor assigned to conduct it, U.S. Attorney John Durham, is now complete, and -- exactly as one would expect -- even this category of criminals has been almost entirely protected, meaning a total legal whitewash for the Bush torture regime:

The Justice Department has opened full criminal investigations of the deaths in CIA custody of two detainees, including one who perished at Iraq's notorious Abu Ghraib prison, U.S. officials said Thursday.

The decision, announced by Attorney General Eric H. Holder Jr., means continued legal jeopardy for several CIA operatives but at the same time closes the book on inquiries that potentially threatened many others. A federal prosecutor reviewed 101 cases in which agency officers and contractors interrogated suspected terrorists during years of military action after the Sept. 11, 2001, attacks but found cause to pursue criminal cases in only two. . . .

The two token cases to be investigated involve the most grotesque brutality imaginable: they apparently are (1) a detainee who froze to death in an American secret prison in Afghanistan in 2002 after being ordered stripped and chained to a concrete floor, and (2) the 2003 death of a detainee at Abu Ghraib whose body was infamously photographed by guards giving a thumbs-up sign.  All other crimes in the Bush torture era will be fully protected.  Lest there be any doubt about what a profound victory this is for those responsible for the torture regime, consider the reaction of the CIA:

"On this, my last day as director, I welcome the news that the broader inquiries are behind us," said a statement from CIA Director Leon Panetta, who will take over as defense secretary on Friday. "We are now finally about to close this chapter of our agency's history" . . . . At CIA headquarters on Thursday, Holder's announcement was greeted with relief. . . .

Consider what's being permanently shielded from legal accountability.  The Bush torture regime extended to numerous prisons around the world, in which tens of thousands of mostly Muslim men were indefinitely imprisoned without a whiff of due process, and included a network of secret prisons -- "black sites" -- purposely placed beyond the monitoring reach of even international human rights groups, such as the International Red Cross. 

Over 100 detainees died during U.S. interrogations, dozens due directly to interrogation abuse.  Gen. Barry McCaffrey said: "We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the C.I.A."  Maj. Gen. Antonio Taguba, who oversaw the official investigation into detainee abuse, wrote:  "there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."

Thanks to the Obama DOJ, that is no longer in question.  The answer is resoundingly clear: American war criminals, responsible for some of the most shameful and inexcusable crimes in the nation's history -- the systematic, deliberate legalization of a worldwide torture regime -- will be fully immunized for those crimes.  And, of course, the Obama administration has spent years just as aggressively shielding those war criminals from all other forms of accountability beyond the criminal realm: invoking secrecy and immunity doctrines to prevent their victims from imposing civil liability, exploiting their party's control of Congress to suppress formal inquiries, and pressuring and coercing other nations not to investigate their own citizens' torture at American hands. 

All of those efforts, culminating in yesterday's entirely unsurprising announcement, means that the U.S. Government has effectively shielded itself from even minimal accountability for its vast torture crimes of the last decade.  Without a doubt, that will be one of the most significant, enduring and consequential legacies of the Obama presidency.

Arrests of top bankers finally begin

(updated below)

In Afghanistan:

Afghan officials said on Thursday that they have arrested two former executives involved in the collapse of Kabul Bank.

According to Rahmatullah Nazari, the deputy attorney general, authorities arrested Sherkhan Farnood, the former chairman of Kabul Bank, and Khalilulah Frozi, its former chief executive officer, on Wednesday in connection with what he said was hundreds of millions of dollars in fraudulent loans to bank officers and insiders. . . .

They were the first arrests in the Kabul Bank affair since exposure of the bank's huge losses last August. The move is likely to be welcomed by the international community, which has held up some aid to Afghanistan until government action is taken on Kabul Bank.

Some $900 million in loans were made to insiders with little or no collateral and even no repayment plan in what auditors have described as effectively a massive Ponzi scheme.

While Afghanistan is hardly a model of the rule of law -- the arrests were effectuated by a corrupt government under severe pressure from outside factions on which they financially rely -- it's nonetheless true that in the U.S., even that minimal level of accountability seems impossible:

In November 2009, Attorney General Eric Holder vowed before television cameras to prosecute those responsible for the market collapse a year earlier, saying the U.S. would be "relentless" in pursuing corporate criminals.

In the 18 months since, no senior Wall Street executive has been criminally charged, and some lawmakers are questioning whether the U.S. Justice Department has been aggressive enough after declining to bring cases against officials at American International Group Inc. (AIG) and Countrywide Financial Corp. . . .

"Can that many companies have collapsed -- large financial firms -- and not one criminal case comes out of it?" said Peter Henning, a law professor at Wayne State University in Detroit who previously was a federal prosecutor and attorney for the SEC. "That seems to go against the norm of the savings-and-loan crisis, and the accounting frauds 10 years ago."

Some of the biggest Wall Street firms rebounded from the crisis stronger than ever. Goldman Sachs's 2009 profits were a record for the firm and JPMorgan Chase & Co. (JPM)'s earnings in 2010 and the first quarter of 2011 have been at an all-time high.

A bitter cynic might suggest that such prosecutions have not happened because both political parties are desperately competing for Wall Street cash for the 2012 election, and nothing would doom the incumbent party's chances more than holding Wall Street royalty accountable, along with the fact that the top levels of government are suffused with former bank officials and lobbyists -- but everyone knows that American justice isn't politicized that way, so that can't be it (just like everyone knows that political considerations played no role whatsoever in the presidential shield of immunity lavished on high-level Bush officials). 

This isn't the first time profound differences between the American sense of justice and Afghanistan's have emerged.  In January of last year, it was revealed that the U.S. was seeking to assassinate Afghan citizens without due process, but Afghan officials vehemently objected:

Gen. Mohammad Daud Daud, Afghanistan's deputy interior minister for counternarcotics efforts, praised U.S. and British special forces for their help recently in destroying drug labs and stashes of opium. But he said he worried that foreign troops would now act on their own to kill suspected drug lords, based on secret evidence, instead of handing them over for trial.

"They should respect our law, our constitution and our legal codes," Daud said. "We have a commitment to arrest these people on our own" . . . .

Ali Ahmad Jalali, a former Afghan interior minister, said that he had long urged the Pentagon and its NATO allies to crack down on drug smugglers and suppliers, and that he was glad that the military alliance had finally agreed to provide operational support for Afghan counternarcotics agents. But he said foreign troops needed to avoid the temptation to hunt down and kill traffickers on their own.

"There is a constitutional problem here. A person is innocent unless proven guilty," he said. "If you go off to kill or capture them, how do you prove that they are really guilty in terms of legal process?" . . .

If only American officials were as vigilant in applying basic norms of Western justice to the due-process-free assassinations of their own citizens.  Remember, though, we have to stay in Afghanistan for at least three more years to teach them how to live under minimum notions of freedom and the rule of law.

* * * * *

Speaking of living under minimum notions of the rule of law, liberal Yale Law Professor Bruce Ackerman has an article this morning entitled "The Lawless Presidency," in which he examines what he calls the "emerging crisis of legality within the executive branch."

 

UPDATE:  Speaking again of lawlessness, The Washington Post reports this morning:

A U.S. drone aircraft fired on two leaders of a militant Somali organization tied to al-Qaeda, apparently wounding them, a senior U.S. military official familiar with the operation said Wednesday. . . .

The airstrike makes Somalia at least the sixth country where the United States is using drone aircraft to conduct lethal attacks, joining Afghanistan, Pakistan, Libya, Iraq and Yemen. And it comes as the CIA is expected to begin flying armed drones over Yemen in its hunt for al-Qaeda operatives.

In at least 3 of those countries (4 if one counts Pakistan), these military attacks are being waged without any Congressional authorization, based solely on the decree of the 2009 Nobel Peace Prize laureate, who yesterday expressed his contempt and frustration for the notion that he needs anyone's permission -- least of all Congress' -- to order the U.S. military to launch attacks in foreign countries.

To defend President Obama, Harold Koh criticizes candidate Obama

Those attempting to defend President Obama's claimed legal power to involve the military in the Libya War without Congressional approval have numerous problems; none is more significant than candidate Obama's own clear statement to the Boston Globe's Charlie Savage in late 2007 on this matter.  In response to being asked whether "the president ha[s] constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress" -- "specifically . . . the strategic bombing of suspected nuclear sites" -- Obama replied: "the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." Note that Obama wasn't being asked whether the President has unilateral authority to order a ground invasion or a full-scale war, but merely the limited, "strategic bombing" of Iran's nuclear sites, and he replied decisively in the negative by invoking a very clear restriction on presidential authority to order military action without Congress.

Yesterday, State Department adviser Harold Koh testified before the Senate Foreign Relations Committee regarding the war in Libya.  The Committee had also requested the appearance of top lawyers from the Justice and Defense Departments -- who, contrary to Koh, told the President that he was violating the War Powers Resolution by waging war without Congressional approval -- but the Most Transparent Administration Ever refused to produce them, instead sending only the State Department lawyer who told the President what he wanted to hear: that he did indeed have this unilateral power.  Koh was confronted with candidate Obama's 2007 statement that directly contradicts the White House's current position, and Koh did the only thing he could do: insist that the Constitutional Scholar's view back then were "not legally correct" and was "too limited a statement," and that he'd be "very surprised if that's [Obama's] position" today.  Watch the amazing, cringe-inducing one-minute video:

In other words, said the President's designated legal spokesman, what Obama the Candidate said on this crucial issue when trying to persuade Democrats to nominate him was wrong and is now officially repudiated.  Let's be clear about how significant --- and typical -- this is. 

Obama's late 20o7 statements about executive power were not some off-the-cuff remarks about an ancillary issue.  Rather, they were part of a statement he prepared in which he cited numerous key legal advisers (Cass Sunstein, Greg Craig, Laurence Tribe, and Jeh Johnson [now the DoD General Counsel who told him he must comply with the WPR]).  More importantly, the questionnaire he was answering was exclusively about executive power: one of the central concerns for Democratic voters in the Bush era.  In the questionnaire, Obama himself explained why these issues -- and his answers -- were so vital:

These are essential questions that all the candidates should answer.  Any President takes an oath to, "preserve, protect and defend the Constitution of the United States."  The American people need to know where we stand on these issues before they entrust us with this responsibility -- particularly at a time when our laws, our traditions, and our Constitution have been repeatedly challenged by this Administration.

Obama himself urged voters to pay attention to the candidates' answers on executive power and to rely on them before deciding whom to "entrust" with the responsibility of the awesome powers of the Oval Office.  I certainly agreed with Obama back then. 

Two days after the questionnaires were published in The Boston Globe, I cited what I called Savage's "superb piece of journalism" in extracting these answers, and harshly criticized Mitt Romney for the answers he gave, writing: "The powers [Romney] claims the President possesses are definitively -- literally -- tyrannical, unrecognizable in the pre-2001 American system of government and, in some meaningful ways, even beyond what the Bush/Cheney cadre of authoritarian legal theorists have claimed." Others, including then-Georgetown Law Professor and soon-to-be Obama OLC official Marty Lederman pointed out the same thing ("Romney? Let's put it this way: If you've liked Dick Cheney and David Addington, you're gonna love Mitt Romney"), and by way of contrast, specifically cited Obama's answer on the President's limited war-making powers.  What was the answer given to the question about the President's war-making powers by the Big, Bad, Scary, Tyrannical, Cheney-replicating Romney?  This:

A President must always act in the best interests of the United States to protect us against a potential threat, including a nuclear Iran. Naturally, it is always preferable to seek agreement of all -- leadership of our government as well as our friends around the world -- where those circumstances are available.

In other words, said Romney, it'd be nice if Congress endorsed the President's will to war, but it's hardly necessary: quite similar to Obama's effective position on Libya today (Romney, of course, supported Obama's decision to go to war in Libya).

In his lead article introducing the questionnaires, Savage himself explained why the candidates' answers on these questions were so important:

In 2000, George W. Bush and Dick Cheney were not asked about presidential power, and they volunteered nothing about their attitude toward the issue to voters. Yet once in office, they immediately began seeking out ways to concentrate more unchecked power in the White House -- not just for themselves, but also for their successors. . . .

Legal specialists say decisions by the next president -- either to keep using the expanded powers Bush and Cheney developed, or to abandon their legal and political precedents -- will help determine whether a stronger presidency becomes permanent.

"The sleeper issue in this campaign involves the proper scope of executive power," said Richard Epstein, a University of Chicago law professor.

That second paragraph proved to be prescient indeed.  That's why many of us who were focused on these issues paid such close attention to the answers the candidates gave to Savage.  To watch the administration so casually renounce one of the key answers -- with a yawn and with almost no explanation -- is repellent.  But this is, of course, not the only time when Obama lured people to support him based on positions he quickly repudiated and vows he casually violated.  After all, that Boston Globe questionnaire was submitted less than two months after Obama categorically vowed to filibuster "any" bill containing telecom immunity, producing headlines like this one that excited many Democratic primary voters:

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Once he had the Democratic nomination safely in hand, Obama almost immediately violated that vow, voting against the filibuster of a bill containing retroactive immunity, and then voting in favor of the bill itself.  Prior to that vote, Talk Left's Armando wrote: "If Obama does not filibuster telecom immunity, it proves his commitments can not be trusted. That he will say and do anything to win, even if he does not mean it."  In light of this latest episode -- forget what I said about war powers when campaigning -- is there any doubt he was right?  If there is any such doubt, re-read this first paragraph from Jack Goldsmith's May, 2009 New Republic article explaining that Obama was doing more to entrench Bush/Cheney Terrorism and civil liberties policies than the right-wing ideologues who pioneered them ever could have dreamed of achieving -- the very policies Obama relentlessly denounced when campaigning.

In this regard, Harold Koh has become the perfect and pure face of the Obama presidency.  How strange to suddenly learn that Koh viewed Obama's 2007 position on presidential war powers to be "not legally correct" and "too limited."  Prior to joining the Obama administration, Koh was a very prolific scholar at Yale Law School who spoke extensively on executive power and war; why -- until now that it's necessary to justify Obama's war -- did Koh never once mention that Obama's position on such a vital issue was wrong?  In his weekly column, Gene Healy provides the answer:

Considering Koh's background, the whole episode offers a cautionary tale about the corrupting effects of power.

Harvard's Jack Goldsmith notes that "for a quarter century before heading up State-Legal, Koh was the leading and most vocal academic critic of presidential unilateralism in war." On the strength of that reputation, Koh rose to the deanship of Yale Law School in 2004.

And Koh seemed to take the War Powers Resolution pretty seriously. In 1994, for example, he wrote to the Clinton Justice Department to protest the planned deployment to Haiti, which was carried out without a single shot being fired:

"Nothing in the War Powers Resolution authorizes the President to commit armed forces overseas into actual or imminent hostilities in a situation where he could have gotten advance authorization."

Yet the implications of Koh's position today are that the president can rain down destruction via cruise missiles and robot death kites anywhere in the world, and unless an American soldier might get hurt, neither the Constitution nor the War Powers Resolution are offended. . . .

Koh was in his mid-50s when he joined the administration, coming off a distinguished career built on opposition to the Imperial Presidency. Yet the lure of being "in the room" when the big decisions are made seems to have turned him into the Gollum of Foggy Bottom.

It's the kind of story you hear again and again in D.C. -- on the right and the left -- of principles sold out for the dubious rewards of "access" and "relevance." This town is "Hollywood for the Ugly" in more ways than one.

Given that, it's easy to see how Koh has risen from token liberal placed in an inconsequential "advisory" position at State to the face of the Obama administration and prime Presidential spokesman. As Barack Obama himself has repeatedly shown, and as his underling Koh has dutifully learned, one does not advance in Washington power circles by adherence to any sort of principle or actual conviction.  One accumulates power by saying anything and everything necessary to acquire and hold onto it: one key reason I now all but disregard what Obama says, and watch only what he does.

U.S., Israel escalate threats against flotilla, including U.S. citizens

(updated below)

A co-founder of the right-wing blog RedState (and former Bush speechwriter) created a mini-controversy over the weekend when he issued a sociopathic endorsement of Israel's possible shooting of his fellow unarmed citizens on a flotilla currently sailing to Gaza; that flotilla is trying to deliver humanitarian supplies to Gazans and protest the ongoing Israeli blockade:

[image error]

When asked by Israeli-American journalist Joseph Dana -- who is covering the flotilla for The Nation -- whether that sentiment applies to the shooting of journalists on board the ships, this was the reply:

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Condemnation of this outburst was pervasive but also easy: cheering for a foreign army to shoot unarmed protesters -- one's fellow citizens -- is self-evidently warped; that this came from a right-wing war-cheerleader-from-a-safe-distance with endless pretenses to uber-patriotism just added a layer of irony (Dear Foreign Nation: go ahead and shoot and kill Americans).  

But over the weekend, U.S. Secretary of State Hillary Clinton also gave her views on the flotilla, and while her rhetoric was somewhat more restrained than that quoted above, she also seemed to endorse possible violence by this foreign nation against her own country's peacefully protesting citizens:

Well, we do not believe that the flotilla is a necessary or useful effort to try to assist the people of Gaza. Just this week, the Israeli Government approved a significant commitment to housing in Gaza. There will be construction materials entering Gaza and we think that it's not helpful for there to be flotillas that try to provoke actions by entering into Israeli waters and creating a situation in which the Israelis have the right to defend themselves.

Though Clinton's language was draped with the subtleties of diplomatese, there is little doubt that she, too, is justifying a potential attack by a foreign government on unarmed American protesters (ironically, Clinton's remarks came at the same Press Conference where she impugned the patriotism of others -- namely, critics of the Libya War -- by branding them as "on Gadaffi's side"). 

The perception that Clinton endorsed possible Israeli violence against Americans is bolstered by the conduct of the U.S. Government in the wake of Israel's attack on the prior Gaza flotilla, when Israel killed 9 people, including the unarmed 19-year-old American citizen (and Turkish citizen) Furkan Dogan.  While most governments instinctively condemn the killing of their own unarmed citizens by foreign armies -- Turkey was furious at Israel for months and world leaders in virtual consensus harshly condemned the Israeli aggression -- the Obama administration almost immediately took Israel's side, culminating with Joe Biden's disgusting rhetorical question, posed before the American teenager was even buried: "what's the big deal here"? 

Worse, the Clinton State Department is now explicitly threatening Americans who participate in the flotilla with criminal prosecution (h/t Jason Ditz):

The United States on Friday warned activists against plans to send a new aid flotilla to challenge Israel's blockade of the Gaza Strip, saying it would be irresponsible and dangerous. . . . "We underscore that delivering or attempting or conspiring to deliver material support or other resources to or for the benefit of a designated foreign terrorist organization, such as Hamas, could violate U.S. civil and criminal statutes and could lead to fines and incarceration," [State Department Spokesperson Victoria] Nuland said.

In contrast to the Israel-must-always-be-defended mindset of U.S. political officials, compare how other governments view the possible shooting of their citizens by a foreign country:

As the second "Gaza Freedom Flotilla" gets ready to sail this week, Irish Foreign Minister Eamon Gilmore urged Israel to avoid any repeat of last year's actions against the convoy, Irish media reported Sunday.

"Israel must exercise all possible restraint and avoid any use of military force if attempting to uphold their naval blockade," Gilmore, who also holds the post of trade minister, said after meeting with Israeli Ambassador to Dublin Boaz Moda.

"In particular, I would expect that any interception of ships is conducted in a peaceful manner and does not endanger the safety of our citizens or other participants," he added, reiterating the country's position that the Gaza blockade was "unjust and counterproductive'" and that the violence that marked last year's flotilla venture was "completely unacceptable and unjustified."

That type of uncontroversial statement -- you shouldn't shoot our unarmed citizens -- is inconceivable when it comes to the U.S. and Israel.  So devoted is the U.S. Government to defending the actions of Israel's that it will even preemptively justify violent attacks on its own citizens, threaten Americans protesting Israel's policies with prosecution for aiding Terrorism, and isolate itself from the world to defend them.

Meanwhile, like the U.S., Israel is issuing its own menacing threats.  Yesterday, Israel announced that any journalists who are on the flotilla merely to cover it will be subject to a 10-year-ban from the country and the confiscation of their equipment. As noted this morning by the New York Times -- one of whose reporters intends (or at least intended) to be on the flotilla -- this is but the latest Israeli attack on press freedoms as a means of suppressing reports and examination of their conduct:

Two and a half years ago, when Israel invaded Gaza to stop Hamas from shooting rockets at Israeli communities -- about 8,000 had been fired -- the Israeli military barred reporters from entering Gaza to report on the war.

There was no public outcry, but the Foreign Press Association took the case to the Israeli Supreme Court, which ruled that the army had acted improperly. It ordered the army to admit a small groups of reporters. Commanders kept saying that it was unsafe, and it was not until the last day of the war that the foreign journalists were allowed to enter.

Israel did the same thing in the wake of the last flotilla attack, confiscating all video and other evidence from passengers and detaining on-board journalists, all to prevent the world from learning what it really did, ensuring that the heavily edited propaganda video the IDF produced and released to the world could not be critically examined. It's strange that a country which incessantly claims that it acted properly is so fixated on suppressing journalistic freedoms and reports about what it did. And one thing is certain: if Israel does make good on its threats to violently attack protesting passengers and/or punish journalists for covering the event, the U.S. -- even as it lectures the world on the evils of identical behavior -- will have nothing but praise to offer.

 

UPDATE:  Israel now appears to be backing away from its threat to impose a 10-year ban on journalists, instead announcing it will "find a formula" to determine the proper sanction (h/t sysprog).  What's most remarkable about all of this is that this flotilla (like the last one) has no intention of entering Israeli waters, nor is it delivering anything other than basic humanitarian supplies.  It is, manifestly, a theatrical, non-threatening form of peaceful protest against the blockade. Yet Israeli and U.S. officials continue to bloviate about "self-defense," "entering into Israeli waters," and criminally aiding Hamas; all of that is nothing more than a by-product of the notion that they own the world, and anyone who fails to honor that claim is either a Terrorist-sympathizer or even a Terrorist. 

Congress vs. the president on war powers

"Broadening our military mission to include regime change would be a mistake" -- President Barack Obama, March 28, 2011, describing to the nation the U.S's role in the War in Libya (more than a week after he began it).

"The White House strongly denied Tuesday that regime change is part of its mission in Libya . . . . Ben Rhodes, a deputy national security adviser, issued a statement acknowledging that President Obama would like to see a democratic government in Libya, but explained that the aim of the U.S. military's intervention there is not to enact regime change. 'We're clarifying, as we've said repeatedly, that the effort of our military operation is not regime change,' Rhodes said" -- The Hill, March 22, 2011.

"The top U.S. admiral involved in the Libya war admitted to a U.S. congressman that NATO forces are trying to kill Libyan leader Muammar al-Qaddafi. The same admiral also said he anticipated the need for ground troops in Libya after Qaddafi falls" -- Josh Rogin, Foreign Policy, yesterday.

________

Would this be an example of a President misleading the nation into an (illegal) war?  Or did the goal of the war radically change oh-so-unexpectedly a mere few weeks after it began?  Everyone can make up their own mind about which is more likely.

Yesterday's strange House vote -- rejecting an authorization for the war in Libya but then also rejecting a bill to partially de-fund the war -- has produced substantial commentary, much of it misguided.  John Cole and Matt Yglesias, for instance, both depict the seemingly inconsistent Congressional vote as one of incoherence and cowardice, with Yglesias in particular arguing that it vindicates his view (one I never heard from progressives in the Bush era) that "it's not so much that we have executive branch power grabs as it is that congress pretty consistently fails to use the leverage that it actually has."  I don't disagree with the general view of Congress as cowardly and misfeasant in its duties, but yesterday's vote is actually not an example of that -- if anything, it's an example of the opposite -- and there are two important points about that vote that should be highlighted:

(1) The so-called "de-funding" bill the House rejected yesterday was not really a de-funding bill.  It would have barred the spending of money for some war purposes, but explicitly authorized it for others.  That's why, as Foreign Policy's Josh Rogin reports, dozens of anti-Libya-war members in both parties voted NO on the de-funding bill:  not because, as Cole and Yglesias suggest, they were cowards who did not have the courage of their anti-war convictions; and not because the bill would have approved some spending for a war they oppose (though that is true), but rather because they were worried (appropriately so) that had that "de-funding" bill passed, Obama lawyers would have exploited it to argue that Congress, by appropriating some money for the war, had implicitly authorized Obama to wage it:

The vote failed 180-238 - but, in fact, there were more than enough lawmakers to pass the measure. Of the 149 Democrats who stuck with the president, up to 70 of them are totally opposed to the Libya intervention and want to see it completely defunded as soon as possible. They voted "no" on the Rooney's bill because they thought it was too weak, did not cut off all funds, and implicitly authorized the intervention. . . .

These 70 Democrats make up the Congressional Progressive Caucus (CPC), the largest caucus within the House Democratic Caucus, whose leadership includes Reps. Mike Honda (D-CA), Barbara Lee (D-CA), Lynn Woolsey (D-CA) and Raul Grijalva (D-AZ).

"Members of Congress voted no because the bill provided funding and legal authority for everything we're currently doing. It was back door authorization. Members didn't support authorizing what we're doing now in Libya," Michael Shank, Honda's spokesman, told The Cable. "The majority of the CPC voted no on the Rooney vote because of this."

In other words, if the GOP had put forth a stronger anti-Libya resolution, the progressive Democrats would have joined them and it would have passed. Despite what Clinton or other administration officials may say, the bill's failure cannot be seen as an endorsement of the Libya war.

Some anti-war Democrats (such as Kucinich) nonetheless voted for the de-funding bill, and while I can see the case for doing so (namely, even this partial de-funding would have at least ended the drone attacks and barred future escalation), the anti-war members who voted NO on partial de-funding had very legitimate reasons for doing so.  After all, the Clinton administration -- after the House failed in 1999 to authorize bombing for the Kosovo war -- continued the bombing anyway by claiming the House had "implicitly" authorized that war by appropriating some funds for it, and Obama White House lawyers would have almost certainly made the same exploitative claim here.  As Ron Paul -- echoing the spokesperson for House progressives -- said in explaining his NO vote on "de-funding", the bill "masquerades as a limitation of funds for the president's war on Libya but is in fact an authorization for that very war. . . . instead of ending the war against Libya, this bill would legalize nearly everything the president is currently doing there."

That was the reason so many anti-war members of Congress -- including dozens of progressives -- rejected the "de-funding" bill despite opposition to the war in Libya: because it was a disguised authorization for a war they oppose, not because they cowardly failed to check executive power abuses.  As Rogin reports, "there were more than enough lawmakers to pass" a true de-funding bill, but GOP leaders -- who have been protecting Obama on Libya from the start -- did not bring that to the floor.

(2) The significance of yesterday's vote is substantial and should not be minimized.  Congress does not need to de-fund a war to render it illegal.  Under the law (and the Constitution), military actions are illegal if Congress does not affirmatively authorize them (either within 60 days or at the start, depending on one's view).  The fact that the President has failed to obtain that authorization renders his ongoing war-waging illegal -- period.  And the fact that the House has now affirmatively voted against authorizing a war that is underway is a very rare and strong step to oppose a sitting President's war policy.  That the vote was so bipartisan only elevates its significance.

It's true that de-funding is one mechanism for Congress to enforce the law when a President wages an illegal war (impeachment is another).  And while Congress' failure (thus far) to take enforcement steps is worthy of criticism, that does not, as Yglesias seems often to suggest, remotely justify or even mitigate the President's lawelessness.  

Lawbreaking is not justified or mitigated because the lawbreaker is not caught or punished.  If a community is plagued by a violent crime wave in response to which the police are insufficiently vigilant, one can (and should) criticize the police's passivity, but that doesn't serve to justify or excuse the conduct of the criminals.  Congress, under the control of both parties, was at least as passive in the face of chronic Bush lawbreaking (Dan Froomkin, 2007: "Historians looking back on the Bush presidency may well wonder if Congress actually existed"), and while many people (including me) harshly criticized Congress for that inaction, I never heard anyone suggest that the failure of Congress to stop Bush lawbreaking somehow mitigated the seriousness of Bush's lawbreaking or meant that the bulk of the blame lay with Congress.

Of course it's true that Congress should act to stop a President who is waging a war in violation of the law and/or the Constitution, but Presidents shouldn't wage illegal wars in the first place.  It is frequently asserted that Article II of the Constitution vests the President with the power and obligation to defend the nation, even though nothing in Article II (or any other provision of the Constitution) actually does that.  But there is an obligation which Article II does explicitly impose on the President: "he shall take Care that the Laws be faithfully executed."  That includes, by definition, the War Powers Resolution (and Article I, Section 8 of the Constitution).

That's where Yglesias and others who seek to shift blame away from the President to Congress have it wrong.  We have both "executive branch power grabs" and a "congress [that] pretty consistently fails to use the leverage that it actually has."  Yesterday underscored the former far more than the latter, as there are few things more serious than a President's waging an illegal war, and few Congressional actions quite as bold as yesterday's vote.

* * * * * 

My reaction to last night's enactment of same-sex marriage by the New York State legislature is more personal than political, so I'll defer to Andrew Sullivan -- one of the nation's earliest advocates of gay marriage -- to explain its significance.  But I can't let this rare genuine political progress go unmentioned, so I will share one reaction:  in 1991, when I was a first-year law student at NYU, I regularly attended, for about a year, meetings and demonstrations of ACT-UP.  I was a passive observer, but very impressed and inspired by the unyielding refusal of gay men with AIDS in that era (in indispensable conjunction with lesbian activists) to passively accept their consigned fate and their status as marginalized, condemned outcasts: the expertise in politics and medicine they developed, the creative and brave civil disobedience they pioneered, and the force of collective will they mustered under the most trying of circumstances was nothing short of extraordinary.

The first meeting I ever went to was attended by Tom Duane, who spoke to the group.  At the time, Duane was seeking to become not only the first openly gay man elected to the New York City Council, but one of the first openly HIV-positive candidates to be elected to any political office.  Remarkably, Duane won, went on to be elected to the State Senate in 1998, and last night -- 20 years older and now a veteran establishment Democratic lawmaker in Albany -- he was at the emotional center of that vote.  It's hard to describe how inconceivable such an event was back in 1991 -- it was barely the end of the Reagan era, when "gay" and "AIDS" were still unmentionable in much decent company and much of gay activism was more about finding a way to survive (literally) than anything else -- but the fact that this amazingly improbable event just happened should (like the events in the Middle East) serve as a potent antidote against defeatism.  Significant and seemingly impossible social and political change happens more often than we think, and it happens more rapidly than we realize.  Even the most momentous change is always possible if one finds the right way to make it happen.

Congress v. the President on war powers

"Broadening our military mission to include regime change would be a mistake" -- President Barack Obama, March 28, 2011, describing to the nation the U.S's role in the War in Libya (more than a week after he began it).

"The White House strongly denied Tuesday that regime change is part of its mission in Libya . . . . Ben Rhodes, a deputy national security adviser, issued a statement acknowledging that President Obama would like to see a democratic government in Libya, but explained that the aim of the U.S. military's intervention there is not to enact regime change. 'We're clarifying, as we've said repeatedly, that the effort of our military operation is not regime change,' Rhodes said" -- The Hill, March 22, 2011.

"The top U.S. admiral involved in the Libya war admitted to a U.S. congressman that NATO forces are trying to kill Libyan leader Muammar al-Qaddafi. The same admiral also said he anticipated the need for ground troops in Libya after Qaddafi falls" -- Josh Rogin, Foreign Policy, yesterday.

________

Would this be an example of a President misleading the nation into an (illegal) war?  Or did the goal of the war radically change oh-so-unexpectedly a mere few weeks after it began?  Everyone can make up their own mind about which is more likely.

Yesterday's strange House vote -- rejecting an authorization for the war in Libya but then also rejecting a bill to partially de-fund the war -- has produced substantial commentary, much of it misguided.  John Cole and Matt Yglesias, for instance, both depict the seemingly inconsistent Congressional vote as one of incoherence and cowardice, with Yglesias in particular arguing that it vindicates his view (one I never heard from progressives in the Bush era) that "it's not so much that we have executive branch power grabs as it is that congress pretty consistently fails to use the leverage that it actually has."  I don't disagree with the general view of Congress as cowardly and misfeasant in its duties, but yesterday's vote is actually not an example of that -- if anything, it's an example of the opposite -- and there are two important points about that vote that should be highlighted:

(1) The so-called "de-funding" bill the House rejected yesterday was not really a de-funding bill.  It would have barred the spending of money for some war purposes, but explicitly authorized it for others.  That's why, as Foreign Policy's Josh Rogin reports, dozens of anti-Libya-war members in both parties voted NO on the de-funding bill:  not because, as Cole and Yglesias suggest, they were cowards who did not have the courage of their anti-war convictions; and not because the bill would have approved some spending for a war they oppose (though that is true), but rather because they were worried (appropriately so) that had that "de-funding" bill passed, Obama lawyers would have exploited it to argue that Congress, by appropriating some money for the war, had implicitly authorized Obama to wage it:

The vote failed 180-238 - but, in fact, there were more than enough lawmakers to pass the measure. Of the 149 Democrats who stuck with the president, up to 70 of them are totally opposed to the Libya intervention and want to see it completely defunded as soon as possible. They voted "no" on the Rooney's bill because they thought it was too weak, did not cut off all funds, and implicitly authorized the intervention. . . .

These 70 Democrats make up the Congressional Progressive Caucus (CPC), the largest caucus within the House Democratic Caucus, whose leadership includes Reps. Mike Honda (D-CA), Barbara Lee (D-CA), Lynn Woolsey (D-CA) and Raul Grijalva (D-AZ).

"Members of Congress voted no because the bill provided funding and legal authority for everything we're currently doing. It was back door authorization. Members didn't support authorizing what we're doing now in Libya," Michael Shank, Honda's spokesman, told The Cable. "The majority of the CPC voted no on the Rooney vote because of this."

In other words, if the GOP had put forth a stronger anti-Libya resolution, the progressive Democrats would have joined them and it would have passed. Despite what Clinton or other administration officials may say, the bill's failure cannot be seen as an endorsement of the Libya war.

Some anti-war Democrats (such as Kucinich) nonetheless voted for the de-funding bill, and while I can see the case for doing so (namely, even this partial de-funding would have at least ended the drone attacks and barred future escalation), the anti-war members who voted NO on partial de-funding had very legitimate reasons for doing so.  After all, the Clinton administration -- after the House failed in 1999 to authorize bombing for the Kosovo war -- continued the bombing anyway by claiming the House had "implicitly" authorized that war by appropriating some funds for it, and Obama White House lawyers would have almost certainly made the same exploitative claim here.  As Ron Paul -- echoing the spokesperson for House progressives -- said in explaining his NO vote on "de-funding", the bill "masquerades as a limitation of funds for the president's war on Libya but is in fact an authorization for that very war. . . . instead of ending the war against Libya, this bill would legalize nearly everything the president is currently doing there."

That was the reason so many anti-war members of Congress -- including dozens of progressives -- rejected the "de-funding" bill despite opposition to the war in Libya: because it was a disguised authorization for a war they oppose, not because they cowardly failed to check executive power abuses.  As Rogin reports, "there were more than enough lawmakers to pass" a true de-funding bill, but GOP leaders -- who have been protecting Obama on Libya from the start -- did not bring that to the floor.

(2) The significance of yesterday's vote is substantial and should not be minimized.  Congress does not need to de-fund a war to render it illegal.  Under the law (and the Constitution), military actions are illegal if Congress does not affirmatively authorize them (either within 60 days or at the start, depending on one's view).  The fact that the President has failed to obtain that authorization renders his ongoing war-waging illegal -- period.  And the fact that the House has now affirmatively voted against authorizing a war that is underway is a very rare and strong step to oppose a sitting President's war policy.  That the vote was so bipartisan only elevates its significance.

It's true that de-funding is one mechanism for Congress to enforce the law when a President wages an illegal war (impeachment is another).  And while Congress' failure (thus far) to take enforcement steps is worthy of criticism, that does not, as Yglesias seems often to suggest, remotely justify or even mitigate the President's lawelessness.  

Lawbreaking is not justified or mitigated because the lawbreaker is not caught or punished.  If a community is plagued by a violent crime wave in response to which the police are insufficiently vigilant, one can (and should) criticize the police's passivity, but that doesn't serve to justify or excuse the conduct of the criminals.  Congress, under the control of both parties, was at least as passive in the face of chronic Bush lawbreaking (Dan Froomkin, 2007: "Historians looking back on the Bush presidency may well wonder if Congress actually existed"), and while many people (including me) harshly criticized Congress for that inaction, I never heard anyone suggest that the failure of Congress to stop Bush lawbreaking somehow mitigated the seriousness of Bush's lawbreaking or meant that the bulk of the blame lay with Congress.

Of course it's true that Congress should act to stop a President who is waging a war in violation of the law and/or the Constitution, but Presidents shouldn't wage illegal wars in the first place.  It is frequently asserted that Article II of the Constitution vests the President with the power and obligation to defend the nation, even though nothing in Article II (or any other provision of the Constitution) actually does that.  But there is an obligation which Article II does explicitly impose on the President: "he shall take Care that the Laws be faithfully executed."  That includes, by definition, the War Powers Resolution (and Article I, Section 8 of the Constitution).

That's where Yglesias and others who seek to shift blame away from the President to Congress have it wrong.  We have both "executive branch power grabs" and a "congress [that] pretty consistently fails to use the leverage that it actually has."  Yesterday underscored the former far more than the latter, as there are few things more serious than a President's waging an illegal war, and few Congressional actions quite as bold as yesterday's vote.

* * * * * 

My reaction to last night's enactment of same-sex marriage by the New York State legislature is more personal than political, so I'll defer to Andrew Sullivan -- one of the nation's earliest advocates of gay marriage -- to explain its significance.  But I can't let this rare genuine political progress go unmentioned, so I will share one reaction:  in 1991, when I was a first-year law student at NYU, I regularly attended, for about a year, meetings and demonstrations of ACT-UP.  I was a passive observer, but very impressed and inspired by the unyielding refusal of gay men with AIDS in that era (in indispensable conjunction with lesbian activists) to passively accept their consigned fate and their status as marginalized, condemned outcasts: the expertise in politics and medicine they developed, the creative and brave civil disobedience they pioneered, and the force of collective will they mustered under the most trying of circumstances was nothing short of extraordinary.

The first meeting I ever went to was attended by Tom Duane, who spoke to the group.  At the time, Duane was seeking to become not only the first openly gay man elected to the New York City Council, but one of the first openly HIV-positive candidates to be elected to any political office.  Remarkably, Duane won, went on to be elected to the State Senate in 1998, and last night -- 20 years older and now a veteran establishment Democratic lawmaker in Albany -- he was at the emotional center of that vote.  It's hard to describe how inconceivable such an event was back in 1991 -- it was barely the end of the Reagan era, when "gay" and "AIDS" were still unmentionable in much decent company and much of gay activism was more about finding a way to survive (literally) than anything else -- but the fact that this amazingly improbable event just happened should (like the events in the Middle East) serve as a potent antidote against defeatism.  Significant and seemingly impossible social and political change happens more often than we think, and it happens more rapidly than we realize.  Even the most momentous change is always possible if one finds the right way to make it happen.