Glenn Greenwald's Blog, page 116

The always-expanding bipartisan Surveillance State

When I wrote earlier this week about Jane Mayer's New Yorker article on the Obama administration's war on whistleblowers, the passage I hailed as "the single paragraph that best conveys the prime, enduring impact of the Obama presidency" included this observation from Yale Law Professor Jack Balkin:  "We are witnessing the bipartisan normalization and legitimization of a national-surveillance state."  There are three events -- all incredibly from the last 24 hours -- which not only prove how true that is, but vividly highlight how it functions and why it is so odious.

First, consider what Democrats and Republicans just jointly did with regard to the Patriot Act, the very naming of which once sent progressives into spasms of vocal protest and which long served as the symbolic shorthand for Bush/Cheney post-9/11 radicalism:

Top congressional leaders agreed Thursday to a four-year extension of the anti-terrorist Patriot Act, the controversial law passed after the Sept. 11 attacks that governs the search for terrorists on American soil.

The deal between Senate Majority Leader Harry Reid and House Speaker John Boehner calls for a vote before May 27, when parts of the current act expire. The idea is to pass the extension with as little debate as possible to avoid a protracted and familiar argument over the expanded power the law gives to the government. . . .

From its inception, the law's increased surveillance powers have been criticized by liberals and conservatives alike as infringements on free speech rights and protections against unwarranted searches and seizures.

Some Patriot Act opponents suggest that Osama bin Laden's demise earlier this month should prompt Congress to reconsider the law, written when the terrorist leader was at the peak of his power. But the act's supporters warn that al-Qaida splinter groups, scattered from Pakistan to the United States and beyond, may try to retaliate.

"Now more than ever, we need access to the crucial authorities in the Patriot Act," Attorney General Eric Holder told the Senate Judiciary Committee.

This will be the second time that the Democratic Congress -- with the support of President Obama (who once pretended to favor reforms) -- has extended the Patriot Act without any changes.  And note the rationale for why it was done in secret bipartisan meetings:  to ensure "as little debate as possible" and "to avoid a protracted and familiar argument over the expanded power the law gives to the government."  Indeed, we wouldn't want to have any messy, unpleasant democratic debates over "the expanded power the law gives to the government."  Here we find yet again the central myth of our political culture:  that there is too little bipartisanship when the truth is there is little in Washington but that. And here we also find -- yet again -- that the killing of Osama bin Laden is being exploited to justify a continuation, rather than a reduction, in the powers of the National Security and Surveillance States.

Next we have a new proposal from the Obama White House to drastically expand the scope of "National Security Letters" -- the once-controversial and long-abused creation of the Patriot Act that allows the FBI to obtain private records about American citizens without the need for a subpoena or any court approval -- so that it now includes records of your Internet activities:

White House proposal would ease FBI access to records of Internet activity

The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words -- "electronic communication transactional records" -- to a list of items that the law says the FBI may demand without a judge's approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user's browser history. . .

Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau's authority. "It'll be faster and easier to get the data," said Baker, who practices national security and surveillance law. "And for some Internet providers, it'll mean giving a lot more information to the FBI in response to an NSL." . . .

To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is "incredibly bold, given the amount of electronic data the government is already getting," said Michelle Richardson, American Civil Liberties Union legislative counsel.

The critics say its effect would be to greatly expand the amount and type of personal data the government can obtain without a court order. "You're bringing a big category of data -- records reflecting who someone is communicating with in the digital world, Web browsing history and potentially location information -- outside of judicial review," said Michael Sussmann, a Justice Department lawyer under President Bill Clinton who now represents Internet and other firms.

So first they conspire with the GOP to extend the Patriot Act without any reforms, then seek to expand its most controversial and invasive provisions to obtain the Internet activities of American citizens without having to bother with a subpoena or judicial approval -- "they" being the Democratic White House.

Most critically, the government's increased ability to learn more and more about the private activities of its citizens is accompanied -- as always -- by an ever-increasing wall of secrecy it erects around its own actions.  Thus, on the very same day that we have an extension of the Patriot Act and a proposal to increase the government's Internet snooping powers, we have this:

The Justice Department should publicly release its legal opinion that allows the FBI to obtain telephone records of international calls made from the U.S. without any formal legal process, a watchdog group asserts.

The nonprofit Electronic Frontier Foundation alleges in a lawsuit filed Thursday that the Justice Department's Office of Legal Counsel violated federal open-records laws by refusing to release the memo.

The suit was prompted in part by McClatchy's reporting that highlighted the existence of the memo and the department's refusal to release it. Earlier this year, McClatchy also requested a copy and was turned down.

The decision not to release the memo is noteworthy because the Obama administration -- in particular the Office of Legal Counsel -- has sought to portray itself as more open than the Bush administration was. By turning down the foundation's request for a copy, the department is ensuring that its legal arguments in support of the FBI's controversial and discredited efforts to obtain telephone records will be kept secret.

What's extraordinary about the Obama DOJ's refusal to release this document is that it does not reveal the eavesdropping activities of the Government but only its legal rationale for why it is ostensibly permitted to engage in those activities.  The Bush DOJ's refusal to release its legal memos authorizing its surveillance and torture policies was unquestionably one of the acts that provoked the greatest outrage among Democratic lawyers and transparency advocates (see, for instance, Dawn Johnsen's scathing condemnation of the Bush administration for its refusal to release OLC legal reasoning: "reliance on 'secret law' threatens the effective functioning of American democracy" and "the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government."

The way a republic is supposed to function is that there is transparency for those who wield public power and privacy for private citizens.  The National Security State has reversed that dynamic completely, so that the Government (comprised of the consortium of public agencies and their private-sector "partners") knows virtually everything about what citizens do, but citizens know virtually nothing about what they do (which is why WikiLeaks specifically and whistleblowers generally, as one of the very few remaining instruments for subverting that wall of secrecy, are so threatening to them).  Fortified by always-growing secrecy weapons, everything they do is secret -- including even the "laws" they secretly invent to authorize their actions  -- while everything you do is open to inspection, surveillance and monitoring.  

This dynamic threatens to entrench irreversible, absolute power for reasons that aren't difficult to understand.  Knowledge is power, as the cliché teaches.  When powerful factions can gather unlimited information about citizens, they can threaten, punish, and ultimately deter any meaningful form of dissent:  J. Edgar Hoover infamously sought to drive Martin Luther King, Jr. to suicide by threatening to reveal King's alleged adultery discovered by illicit surveillance; as I described earlier today in my post on New York's new Attorney General, Eliot Spitzer was destroyed in the middle of challenging Wall Street as the result of a massive federal surveillance scheme that uncovered his prostitution activities.  It is the rare person indeed with nothing to hide, and allowing the National Security State faction unfettered, unregulated intrusive power into the private affairs of citizens -- as we have been inexorably doing -- is to vest them with truly awesome, unlimited power.

Conversely, allowing government officials to shield their own conduct from transparency and (with the radical Bush/Obama version of the "State Secrets privilege") even judicial review ensures that National Security State officials (public and private) can do whatever they want without any detection and (therefore) without limit or accountability.  That is what the Surveillance State, at its core, is designed to achieve: the destruction of privacy for individual citizens and an impenetrable wall of secrecy for those with unlimited surveillance power.  And as these three events just from the last 24 hours demonstrate, this system -- with fully bipartisan support --- is expanding more rapidly than ever.

Eric Schneiderman vs. Wall Street and its political servants

It's rare to be able to write in praise of a high elected official, but Eric Schneiderman -- New York's recently elected state Attorney General -- thus far deserves it.  As a State Senator, he was one of the leaders in reforming that state's decades-old, oppressive Rockefeller drug laws, waging war on what he called "the failed drug policies of the past" -- harsh, mandatory prison terms for users -- and replacing them with non-punitive provisions "to expand drug treatment as an alternative to prison [and] give judges more discretion to divert drug-addicted individuals convicted of non-violent drug crimes to treatment" (politics is never pure; the price for those reforms were longer sentences for so-called "drug kingpins").  He is also an outspoken advocate for full-scale marriage equality, joining former Reagan Solicitor General Ted Olsen in decrying "civil unions" as "a badge of inferiority that forever stigmatizes the relationships of committed same-sex couples as different, separate, unequal and less worthy."

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But most noteworthy and impressive is his seemingly solitary fight to hold Wall Street accountable for the vast corruption and criminality that spawned the 2008 financial crisis, which continues to impose serious financial hardship and anxiety on hundreds of millions of people around the world.  As the U.S. DOJ steadfastly looks the other way and other state Attorneys General prepare to settle all potential charges in exchange for payment of woefully inadequate "cost-of-doing-business" fines, Schneiderman is doing the opposite, aggressively expanding his investigation in a way that could single-handedly sabotage the efforts to permanently protect this industry from accountability:

The New York attorney general has requested information and documents in recent weeks from three major Wall Street banks about their mortgage securities operations during the credit boom, indicating the existence of a new investigation into practices that contributed to billions in mortgage losses.

Officials in Eric T. Schneiderman's office have also requested meetings with representatives from Bank of America, Goldman Sachs and Morgan Stanley . . . The inquiry appears to be quite broad, with the attorney general's requests for information covering many aspects of the banks' loan pooling operations. . .

The requests for information by Mr. Schneiderman's office also seem to confirm that the New York attorney general is operating independently of peers from other states who are negotiating a broad settlement with large banks over foreclosure practices.

By opening a new inquiry into bank practices, Mr. Schneiderman has indicated his unwillingness to accept one of the settlement's terms proposed by financial institutions -- that is, a broad agreement by regulators not to conduct additional investigations into the banks' activities during the mortgage crisis. Mr. Schneiderman has said in recent weeks that signing such a release was unacceptable.

The investigation is still in its early stages but, at least preliminarily, it seems clear that Schneiderman is unwilling to permit the type of impunity that has been granted over the last decade to lawbreaking telecoms, Bush officials, NSA eavesdroppers and CIA torturers to be quietly extended to Wall Street tycoons, whose plundering precipitated a massive worldwide financial crisis, only to be even more enriched and empowered by the political response.  Earlier this month, Scheinderman also issued broad and sweeping subpoenas to two large multi-billion-dollar investment funds and their lawyers at the heart of the mortgage fraud scandal, independently jeopardizing the collective efforts to shield those culprits from accountability:

As state attorneys general work on a potential settlement of the nationwide probe of home-loan servicers, Mr. Schneiderman, a Democrat, has expressed concern that a deal could let the companies escape liability for future legal claims.

"We believe it's critical that attorneys general retain their ability to conduct comprehensive investigations of the mortgage crisis and follow the facts wherever they lead," a spokesman for Mr. Schneiderman said.

Further evidence of Schneiderman's unwillingness to allow the law to be exploited as a corrupted instrument for corporatism is found in his threats to sue the federal government with "aggressive legal action" over its failure to conduct legally mandated environment impact studies for proposed drilling in the Delaware River Basin (which provides 50% of New York's drinking water).  Those threats predictably prompted objections from "oil and gas industry representatives" accustomed to lawless subservience from government officials: especially from the regulatory agencies mandated to compel industry compliance with the law yet which are typically run by former industry officials who do the opposite (as epitomized by the BP official chosen by the Obama administration as a top regulator overseeing land and minerals management).

An Attorney General who simultaneously works for more lenient laws for ordinary Americans committing trivial drug offenses while demanding serious accountability for the nation's most powerful factions is a rare and noble aberration indeed:  one who seems openly hostile to the two-tiered justice system that operates to protect lawbreaking political and financial elites while punishing the powerless.  Of course, the last politician who tried to impose meaningful accountability on Wall Street was New York Attorney General and Governor Eliot Spitzer, whose career was abruptly destroyed by a still-very-strange-and-difficult-to-understand massive federal law enforcement effort into his prostitution-hiring activities.  As Jay Ackroyd said of Schneiderman yesterday in response to my praise of his actions:  "He'd best have no skeletons. None."  It is worth keeping a watchful eye on Schneiderman's investigative efforts and doing everything possible to provide what will undoubtedly be much-needed support if, as appears to be the case, he is serious about taking on these pernicious factions and impeding the conspiring by the political class to protect their benefactors/owners.

The illegal war in Libya

(updated below - Update II)

"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" -- candidate Barack Obama, December, 2007

"No more ignoring the law when it's inconvenient. That is not who we are. . . . We will again set an example for the world that the law is not subject to the whims of stubborn rulers" -- candidate Barack Obama, August 1, 2007

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When President Obama ordered the U.S. military to wage war in Libya without Congressional approval (even though, to use his words, it did "not involve stopping an actual or imminent threat to the nation"), the administration and its defenders claimed he had legal authority to do so for two reasons: (1) the War Powers Resolution of 1973 (WPR) authorizes the President to wage war for 60 days without Congress, and (2) the "time-limited, well defined and discrete" nature of the mission meant that it was not really a "war" under the Constitution (Deputy NSA Adviser Ben Rhodes and the Obama OLC).  Those claims were specious from the start, but are unquestionably inapplicable now.

From the start, the WPR provided no such authority.  Section 1541(c) explicitly states that the war-making rights conferred by the statute apply only to "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."  That's why Yale Law Professor Bruce Ackerman -- in an article in Foreign Policy entitled "Obama's Unconstitutional War" -- wrote when the war started that the "The War Powers Resolution doesn't authorize a single day of Libyan bombing" and that "in taking the country into a war with Libya, Barack Obama's administration is breaking new ground in its construction of an imperial presidency."  

Ackerman detailed why Obama's sweeping claims of war powers exceeded that even of past controversial precedents, such as Clinton's 1999 bombing of Kosovo, which at least had the excuse that Congress authorized funding for it: "but Obama can't even take advantage of this same desperate expedient, since Congress has appropriated no funds for the Libyan war."  The Nation's John Nichols explained that Obama's unilateral decision "was a violation of the provision in the founding document that requires the executive to attain authorization from Congress before launching military adventures abroad."  Put simply, as Daniel Larison concluded in an excellent analysis last week, "the war was illegal from the start."

But even for those who chose to cling to the fiction that the presidential war in Libya was authorized by the WPR, that fiction is now coming to a crashing end.  Friday will mark the 60th day of the war without Congress, and there are no plans for authorization to be provided.  By all appearances, the White House isn't even bothering to pretend to seek one.  A handful of GOP Senators -- ones who of course showed no interest whatsoever during the Bush years in demanding presidential adherence to the law -- are now demanding a vote on Libya, but it's highly likely that the Democrats who control the Senate won't allow one.  Instead, the law will simply be ignored by the President who declared, when bashing George Bush on the campaign trail to throngs of cheering progressives: "No more ignoring the law when it's inconvenient. That is not who we are."

One of the questions often asked during the Bush years was why Bush/Cheney were so brazen in violating Congressional statutes given that the post-9/11 Congress would have given them whatever authority they wanted to do whatever they wanted; the answer was clear: because they wanted to establish the "principle" that they had the power to do anything without getting anyone's permission, including the American people's through their Congress or the courts ("These decisions, under our Constitution, are for the President alone to make," decreed John Yoo in his iconic September 25, 2001 memo). 

The same is true of Obama here.  There is little doubt that Congress would subserviently comply -- as it always does -- with presidential demands for war authorization.  The Obama White House is simply choosing not to seek it because Obama officials want to bolster the unrestrained power of the imperial presidency entrenched by Dick Cheney, David Addington and John Yoo, and because that route avoids a messy debate about purpose, cost and exit strategy.  Instead -- just as Bush/Cheney invented theories to justify even direct violation of Congressional law (e.g., the AUMF implicitly allowed us to eavesdrop on Americans without warrants in violation of FISA) -- the Obama administration is now, as The New York Times put it, "trying to come up with a plausible theory for why continued participation by the United States does not violate the law."  Those potential "theories" -- that the U.S. can stop bombing for a moment, claim the war ended, and then resume bombing on the basis that the momentary pause reset the WPR clock, or that NATO's command means the U.S. is not really at war -- are ludicrous on their face, but highlight how eager the White House is to avoid seeking a vote that might dilute the President's seized unilateral war-making power  (Ackerman and Yale Professor Oona Hathaway have a Washington Post Op-Ed today deriding those absurd theories).

It was equally clear from the start that this Orwellian-named "kinetic humanitarian action" was, in fact, a "war" in every sense, including the Constitutional sense, but that's especially undeniable now.  While the President, in his after-the-fact speech justifying the war, pledged that "broadening our military mission to include regime change would be a mistake," it is now clear that is exactly what is happening.  "Regime change" quickly became the explicit goal. NATO has repeatedly sought to kill Gadaffi with bombs; one attack killed his youngest son and three grandchildren and almost killed his whole family including his wife, forcing them to flee to Tunisia.  If sending your armed forces and its AC-130s and drones to another country to attack that country's military and kill its leader isn't a "war," then nothing is.

It's extraordinary how rapidly and brazenly the initial claims about the war were discarded.  The notion that we were simply going to establish a no-fly zone to protect civilians in Benghazi behind the leadership of the Arab League -- remember all that?  -- is a faded, laughable memory.  Former U.N. Secretary General Kofi Annan, originally supportive of the mission in Libya, explained the obvious about NATO in an interview this week:  "they've crossed a line and are now part of the civil war and fighting on one side of the civil war."  One can now say many things about this war; that it is "time-limited, well defined and discrete" is most assuredly not among them.

The excuses offered to justify or excuse all of this are unpersuasive in the extreme.  Some point out that Congress is content with having the President seize its war-making powers; that's true, but the same was true of Congress under both parties in the face of Bush/Cheney radicalism (Dan Froomkin wrote in 2007 that "historians looking back on the Bush presidency may well wonder if Congress actually existed").  Nobody back then suggested this inaction excused Bush's lawbreaking.  That Congress acquiesces simply means -- like Obama's protection of Bush crimes -- that the President will get away with this lawbreaking, not that it's justified.  

Nor do the instances of past illegal wars provide any excuse.  Past lawlessness does not justify current lawlessness.  Beyond that, Professors Ackerman and Hathaway argue today that Libya will create an all new and dangerous precedent for the imperial presidency:

Once Obama crosses the Rubicon, future presidents will simply cite Libya when they unilaterally commit America to far more ambitious NATO campaigns.

Make no mistake: Obama is breaking new ground, moving decisively beyond his predecessors. George W. Bush gained congressional approval for his wars in Afghanistan and Iraq. Bill Clinton acted unilaterally when he committed American forces to NATO's bombing campaign in Kosovo, but he persuaded Congress to approve special funding for his initiative within 60 days. And the entire operation ended on its 78th day.

In contrast, Congress has not granted special funds for Libya since the bombing began, and the campaign is likely to continue beyond the 30-day limit set for termination of all operations. . . .

If nothing happens, history will say that the War Powers Act was condemned to a quiet death by a president who had solemnly pledged, on the campaign trail, to put an end to indiscriminate warmaking.

That the American people must approve of wars through their Congress is no legalistic technicality (and as my very British NYU Criminal Law Professor, Graham Hughes, dryly said of his arrival in the U.S. and initial exposure to TV debates about criminal defendants "getting off on technicalities":  "I had never before been in a country where people refer to their Constitution as a 'technicality'").  The whole point of the Article I, Section 8 requirement is that democratic debate and consent is necessary to prevent Presidents from starting self-aggrandizing wars without real limits on duration, cost and purpose; the WPR was enacted after the Vietnam debacle to prevent its repeat. 

This war, without Congressional authorization, is illegal in every relevant sense:  Constitutionally and statutorily.   That was true from its start but is especially true now.  If one wants to take the position that it's not particularly important or damaging for a President to illegally start and sustain protracted wars on his own, then it's hard to see what would be important.  That is the ultimate expression of a lawless empire.

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A 37-year-old detainee reportedly committed suicide at Guantanamo last night; if true, he will have become the 8th detainee (by the dubious official count) to have ended his own life at that camp.

 

UPDATE:  Donald Rumsfeld's former Chief of Staff at the Pentagon, Keith Urbahn, wrote the following on Twitter earlier today:

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As I replied, I -- along with anyone else paying even minimal attention to these issues -- long ago became accustomed to such ironies and am thus hardly "disillusioned" by them.  But it is simply the case that with regard to many (not all, but many) of the most controversial issues in this area, Obama has either equaled or exceeded Bush/Cheney.  That Obama refuses to seek Congressional approval for his war (and his top officials even suggest they have the power to defy any Congressional bans) -- while Bush sought and obtained Congressional authorization for his -- should be added to that ever-growing list.

UPDATE II:  In his grand Middle East speech today, President Obama -- who has presided over lethal civilian-killing attacks in Afghanistan, Iraq, Yemen, Libya, Pakistan and Somalia -- announced: "we will not tolerate aggression across borders."  That instantly ranks among my favorite political statements ever.

The evils of DOMA

Other obligations prevented me from writing today, but I wanted to encourage people to watch the below four-minute video.  MSNBC's Thomas Roberts has been one of the very few American journalists covering the plight of same-sex binational couples under the Defense of Marriage Act and, in this segment, he interviews U.S. citizen Josh Vandiver and his legal spouse, Henry Valandia, a native of Venezuela (they were legally married last year in Connecticut).  Because DOMA expressly bars the U.S. government from granting immigration rights to the same-sex spouses of U.S. citizens based on their spousal relationship (the way the U.S. Government routinely grants such rights to the opposite-sex spouses of American citizens), Valandia faces deportation back to Venezuela -- meaning Vandiver would be forced to live thousands of miles and a full continent away from the person with whom he wants to spend his life (their Congressman, Rep. Rush Holt, has been actively attempting to stop Valandia's deportation and to help enact legislation providing for immigration rights for such couples).

I genuinely can't comprehend how any person could watch this video -- and there are tens of thousands of couples in the same situation -- and support this outcome; that includes -- perhaps especially -- "small government" conservatives incessantly insisting that the Federal Government should not be intervening in people's lives and making decisions for them.  Imagine if you were barred from living on the same continent as the person you love most and had to watch your own government try to deport them from your country all because they're not the gender the government decrees you should have for your spouse (the group Stop the Deportations suggests actions here for those so inclined):

Jane Mayer on the Obama war on whistle-blowers

In a just released, lengthy New Yorker article, Jane Mayer -- with the diligence and thoroughness she used to expose the Bush torture regime -- examines a topic I've written about many times here:  the Obama administration's unprecedented war on whistleblowers generally, and its persecution of NSA whistleblower Thomas Drake in particular (Drake exposed massive waste, excess and perhaps illegality in numerous NSA programs).  Mayer's article is what I'd describe as the must-read magazine article of the month, and I encourage everyone to read it in its entirety, but I just want to highlight a few passages.  First, we have this:

When President Barack Obama took office, in 2009, he championed the cause of government transparency, and spoke admiringly of whistle-blowers, whom he described as "often the best source of information about waste, fraud, and abuse in government." But the Obama Administration has pursued leak prosecutions with a surprising relentlessness. Including the Drake case, it has been using the Espionage Act to press criminal charges in five alleged instances of national-security leaks -- more such prosecutions than have occurred in all previous Administrations combined. The Drake case is one of two that Obama's Justice Department has carried over from the Bush years.

Gabriel Schoenfeld, a conservative political scientist at the Hudson Institute, who, in his book "Necessary Secrets" (2010), argues for more stringent protection of classified information, says, "Ironically, Obama has presided over the most draconian crackdown on leaks in our history -- even more so than Nixon."

When it comes to civil liberties and transparency -- cornerstones of the Obama campaign -- those two paragraphs are a perfect microcosm of what has taken place.  And Mayer did not even include this quote about whistleblowers from candidate Obama:  "Such acts of courage and patriotism . . . should be encouraged rather than stifled."  Apparently, by "encouraged," he meant: "snuffed out with relentless prosecution and intimidation."  

But for the real microcosm of the Obama legacy in these areas, Mayer offers this:

Jack Balkin, a liberal law professor at Yale, agrees that the increase in leak prosecutions is part of a larger transformation. "We are witnessing the bipartisan normalization and legitimization of a national-surveillance state," he says. In his view, zealous leak prosecutions are consonant with other political shifts since 9/11: the emergence of a vast new security bureaucracy, in which at least two and a half million people hold confidential, secret, or top-secret clearances; huge expenditures on electronic monitoring, along with a reinterpretation of the law in order to sanction it; and corporate partnerships with the government that have transformed the counterterrorism industry into a powerful lobbying force. Obama, Balkin says, has "systematically adopted policies consistent with the second term of the Bush Administration."

If someone asked me to point to a single paragraph that best conveys the prime, enduring impact of the Obama presidency, I'd point to that one.

As for why serious tensions developed between Drake and his NSA superiors, Mayer explains that it originated with the post-9/11 work of NSA mathematician (and political conservative) Bill Binney, whose work was intended to fix the NSA's flaws that allowed the 9/11 plot to go undetected but was quickly exploited far beyond that purpose by Bush's NSA:

Binney expressed terrible remorse over the way some of his algorithms were used after 9/11. ThinThread, the "little program" that he invented to track enemies outside the U.S., "got twisted," and was used for both foreign and domestic spying: "I should apologize to the American people. It's violated everyone's rights. It can be used to eavesdrop on the whole world." According to Binney, Drake took his side against the N.S.A.'s management and, as a result, became a political target within the agency.

The prohibition on domestic spying was long one of the NSA's central mandates, and objecting to the agency's post-9/11 use of its awesome technology to turn inward on the American people is about as pure whistleblowing as it gets.  Recall what former Idaho Senator Frank Church said about the NSA after his mid-1970s Committee uncovered decades of severe surveillance abuses under virtually every President since World War II:  "That capability at any time could be turned around on the American people and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide."  Mayer also details how Drake raised objections to what he suspected (rightly) was the NSA's illegal eavesdropping on Americans without the warrants required by FISA.

Thomas Drake is a hero who deserves a Medal of Freedom Honor.  Instead, the Obama administration seeks to imprison him for decades while steadfastly protecting from prosecution -- or judicial review of any kind -- the high-level government officials who systematically broke the law.  Put another way -- from the last paragraph of Mayer's article:

Mark Klein, the former A.T. & T. employee who exposed the telecom-company wiretaps, is also dismayed by the Drake case. "I think it's outrageous," he says. "The Bush people have been let off. The telecom companies got immunity. The only people Obama has prosecuted are the whistle-blowers."

And that's to say nothing of the full-scale immunity also given thus far to Goldman Sachs, Bank of America, Merrill, and the mortgage fraudsters who have essentially stolen people's homes.  About what motivates Obama's conduct -- his virtually complete reversal from the campaign pledges -- Drake offers this speculation:

"I actually had hopes for Obama," he said.  He had not only expected the President to roll back the prosecutions launched by the Bush Administration; he had thought that Bush Administration officials would be investigated for overstepping the law in the "war on terror."

"But power is incredibly destructive," Drake said. "It's a weird, pathological thing. I also think the intelligence community coöpted Obama, because he's rather naïve about national security. He's accepted the fear and secrecy. We're in a scary space in this country."

On Twitter this morning, The American Prospect's Adam Serwer said of the New Yorker article:  "Jane Mayer does to warrantless wiretapping what she did to torture."  That's true, but one could just as accurately say that Mayer does to the Obama administration what she did to the Bush administration:  expose its most rotted attributes.  What I've discussed here is but a small portion of the article.  Read the whole thing to get the full picture of how devoted this President is to the National Security and Surveillance State he pretended to want to reform and to the preservation (and strengthening) of the sprawling secrecy regime that enables its corruption.

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The Supreme Court today refused to hear an appeal from the Ninth Circuit's decision upholding the Bush/Obama version of the "state secrets privilege" and thus denying a torture victim the right to sue in court for what was done to him (on the ground that even the torture regime -- and its enabling renditions program -- are far too vital of state secrets to permit judicial review).  Serwer describes the implications .

They hate us for our freedoms

The New York Times reports today:

For the second time in three days, a night raid in eastern Afghanistan by NATO forces resulted in the death of a child, setting off protests on Saturday that turned violent and ended in the death of a second boy. . . .

"American forces did an operation and mistakenly killed a fourth-grade student; he had gone to sleep in his field and had a shotgun next to him," [the district's governor, Abdul Khalid]. said. "People keep shotguns with them for hunting, not for any other purposes," Mr. Khalid said.

The boy, [15], was the son of an Afghan National Army soldier . . . When morning came, an angry crowd gathered in Narra, the boy's village, and more than 200 people marched with his body to the district center. Some of the men were armed and confronted the police, shouting anti-American slogans . . .

The police opened fire in an effort to push back the crowd to stop its advance to the district center. A 14-year-old boy was killed, and at least one other person was wounded, Mr. Khalid said. . . .

On Thursday, a night raid by international forces in Nangahar Province resulted in the death of a 12-year-old girl and her uncle, who was a member of the Afghan National Police.

There's nothing much new to say here, but every now and then, it's worth highlighting not only what we're doing, but what the results are.  Just imagine the accumulated hatred from having things like this happen day after day, week after week, year after year, for a full decade now, with no end in sight -- broadcast all over the region.  It's literally impossible to convey in words the level of bloodthirsty fury and demands for vengeance that would arise if a foreign army were inside the U.S. killing innocent American children even a handful of times, let alone continuously for a full decade.  

It's the perfect self-perpetuating cycle:  (1) They hate us and want to attack us because we're over there; therefore, (2) we have to stay and proliferate ourselves because they hate us and want to attack us; (3) our staying and proliferating ourselves makes them hate us and want to attack us more; therefore, (4) we can never leave, because of how much they hate us and want to attack us.  The beauty of this War on Terror -- and, as the last two weeks have demonstrated, War is the bipartisan consensus for what we are and should be doing to address Terrorism -- is that it forever sustains its own ostensible cause.

The quaint and obsolete Nuremberg principles

Benjamin Ferencz is a 92-year-old naturalized U.S. citizen, American combat soldier during World War II, and a prosecutor at the Nuremberg Trials, where he prosecuted numerous Nazi war criminals, including some responsible for the deaths of upward of 100,000 innocent people.  He gave a fascinating (and shockingly articulate) 13-minute interview yesterday to the CBC in Canada about the bin Laden killing, the Nuremberg principles, and the U.S. role in the world.  Without endorsing everything he said, I hope as many people as possible will listen to it.

All of Ferencz's answers are thought-provoking -- including his discussion of how the Nuremberg Principles apply to bin Laden -- but there's one answer he gave which I particularly want to highlight; it was in response to this question: "so what should we have learned from Nuremberg that we still haven't learned"?  His answer:

I'm afraid most of the lessons of Nuremberg have passed, unfortunately.  The world has accepted them, but the U.S. seems reluctant to do so.  The principal lesson we learned from Nuremberg is that a war of aggression -- that means, a war in violation of international law, in violation of the UN charter, and not in self-defense -- is the supreme international crime, because all the other crimes happen in war.  And every leader who is responsible for planning and perpetrating that crime should be held to account in a court of law, and the law applies equally to everyone.

These lessons were hailed throughout the world -- I hailed them, I was involved in them -- and it saddens me to no end when Americans are asked:  why don't you support the Nuremberg principles on aggression?  And the response is:  Nuremberg?  That was then, this is now.  Forget it.

To be candid, I've been tempted several times to simply stop writing about the bin Laden killing, because passions are so intense and viewpoints so entrenched, more so than any other issue I've written about.  There's a strong desire to believe that the U.S. -- for the first time in a long time -- did something unquestionably noble and just, and anything which even calls that narrative into question provokes little more than hostility and resentment.  Nonetheless, the bin Laden killing is going to shape how many people view many issues for quite some time, and there are still some issues very worth examining.

One bothersome aspect about the reaction to this event is the notion that bin Laden is some sort of singular evil, someone so beyond the pale of what is acceptable that no decent person would question what happened here:  he killed civilians on American soil and the normal debates just don't apply to him.  Thus, anyone who even questions whether this was the right thing to do, as President Obama put it, "needs to have their head examined" (presumably that includes Benjamin Ferencz).  In other words, so uniquely evil is bin Laden that unquestioningly affirming the rightness of this action is not just a matter of politics and morality but mental health.  Thus, despite the lingering questions about what happened, it's time, announced John Kerry, to "shut up and move on."  I know Kerry is speaking for a lot of people:  let's all agree this was Good and stop examining it.  Tempting as that might be -- and it is absolutely far easier to adhere to that demand than defy it -- there is real harm from leaving some of these questions unexamined.

No decent human being contests that the 9/11 attack was a grave crime.  But there are many grave crimes, including ones sanctioned by (or acquiesced to) those leading the chorus of cheers for bin Laden's killing.  To much controversy, Noam Chomsky recently wrote: "uncontroversially, Bush's crimes vastly exceed bin Laden's."  That claim prompted widespread objections, including from Andrew Sullivan, who specifically criticized Chomsky's use of the word "uncontroversially" in making that claim.  That semantic objection is not invalid: of course that comparative judgment is controversial, especially in the U.S.

Nor do I think such comparisons are ultimately worthwhile:  how does one weigh the intentional targeting of civilians that kills several thousand against an illegal, aggressive war that recklessly and foreseeably causes the deaths of at least 100,000 innocent people, and almost certainly far more?  Comparisons aside: what is clear is that Bush's crimes are grave, of historic proportion, and it's simply impossible for anyone who believes in the Nuremberg Principles to deny that. 

His invasion of Iraq caused the deaths of at least 100,000 (and almost certainly more) innocent Iraqis: vastly more than bin Laden could have dreamed of causing. It left millions of people internally and externally displaced for years.  It destroyed a nation of 26 million people.  It was without question an illegal war of aggression: what the lead prosecutor of the Nuremberg Trials -- as Ferencz just reminded us --  called the "the central crime in this pattern of crimes, the kingpin which holds them all together."  And that's to say nothing of the worldwide regime of torture, disappearances, and black sites created by the U.S during the Bush years.

Yet the very same country -- and often the very same people -- collectively insisting upon the imperative of punishing civilian deaths (in the bin Laden case) has banded together to shield George Bush from any accountability of any kind.  Both political parties -- and the current President -- have invented entirely new Orwellian slogans of pure lawlessness to justify this protection (Look Forward, Not Backward):  one that selectively operates to protect only high-level U.S. war criminals but not those who expose their crimes.  Worse, many of Bush's most egregious crimes -- including the false pretenses that led to this unfathomably lethal aggressive war and the widespread abuse of prisoners that accompanied it -- were well known to the country when it re-elected him in 2004. 

Those who advocated for those massive crimes -- and even those who are directly responsible for them -- continue to enjoy perfectly good standing in mainstream American political circles.  The aptly named "Shock and Awe" was designed to terrify an entire civilian population into submission through the use of massive and indiscriminate displays of air bombings.  John Podhoretz criticized the brutal assault on Fallujah for failing to exterminate all "Sunni men between the ages of 15 and 35."  The country's still-most celebrated "foreign affairs expert" at The New York Times justified that attack based on the psycopathic desire to make Iraqis "Suck. On. This."  The Washington Post hires overt torture advocates as Op-Ed writers and regularly features Op-Ed contributions from the architects of the Iraq crime, as they did just today (Donald Rumsfeld claiming "vindication").   And, of course, we continue to produce widespread civilian deaths in multiple countries around the world with virtually no domestic objection.

There's no question that the perpetrators of the 9/11 attack committed grave crimes and deserved punishment.  But the same is true for the perpetrators of other grave crimes that result in massive civilian death, including when those perpetrators are American political officials.  As Ferencz put it when describing one of the core lessons of Nuremberg:  "every leader who is responsible for planning and perpetrating that crime should be held to account in a court of law, and the law applies equally to everyone."  More than anything, that precept -- the universality of these punishments -- was the central lesson of Nuremberg, as Jackson explained in his Opening Statement:

What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. . . . . And let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment.

But as Ferencz put it:  "Nuremberg? That was then, this is now."  Or, to put it another way, Nuremberg is so pre-9/11 (and even before 9/11, we often violated Jackson's insistence that those principles must apply to ourselves as much as they did to Nazi war criminals).  

There is, of course, a difference between deliberately targeting civilians and recklessly causing their deaths.  But, as American law recognizes in multiple contexts, acts that are undertaken recklessly -- without regard to the harm they cause -- are deemed intentional.  And when it comes to an aggressive and illegal war that counts the deaths of extinguished civilian lives in the hundreds of thousands -- such as the destruction of Iraq -- those distinctions fade into insignificance. 

The perpetrators of the 9/11 attacks deserve to be held accountable for those crimes.  But it's been a bit difficult listening to a country that continuously commits its own egregious crimes -- ones that constantly cause civilian deaths -- righteously celebrating the bin Laden killing as though it is applying universal principles of justice grounded in unmitigated contempt for lawless aggression.  It's hard to avoid the conclusion that what has provoked such rage at bin Laden as a supreme criminal isn't the unlawful killing of civilians, but rather the killing of Americans on U.S. soil.  The way we treat our own war criminals and policies of mass civilian death from around the world -- and the way we so brazenly repudiate and even scorn the Nuremberg Principles we said we were establishing for the world -- leave little doubt about that.

How can a country which has so passively accepted the complete immunity for George Bush, Dick Cheney and others -- and which long tolerated if not actively supported their murderous policies -- convincingly pose as stalwart opponents of lawlessly caused civilian deaths?  Does anyone doubt the widespread American fury that would have resulted if Iraqis had come to the U.S. and killed Bush or other U.S. political leaders during that war?  Recall the intense condemnation of an Iraqi citizen who did not shoot Bush in the head and dump his corpse into the ocean, but rather simply threw a shoe at him to protest the extraordinary amounts of Iraqi blood he has on his hands.  Any efforts to harm an American political leader for the civilian deaths they cause would be decried by American consensus as "Terrorism" or worse (and that would be the case despite the fact that we not only tried to kill Saddam but are now quite clearly attempting to kill Gadaffi).  "American exceptionalism" in its most odious expression means that we have the right to do things that nobody else in the world has the right to do, and that, as much as anything, is what is driving the reaction here.

It's always easier -- and more satisfying -- to condemn the crimes of others rather than one's own.  There's always a temptation to find excuses, mitigations and even justifications for one's own crimes while insisting that the acts of others -- especially one's enemies -- are expressions of pure evil.  But a country that regrets the Iraq War only because it was not prosecuted as competently as it should have been -- and which as elite consensus scorns as radical and irresponsible the notion of accountability for its own war criminals -- is hardly in a position to persuasively posture as righteous avengers of civilian deaths.  The claims being made about why the killing of bin Laden is grounded in such noble principles would be much more compelling if those same principles were applied to ourselves as well as our enemies.  And the imperative to do so, more than anything, was the prime mandate of Nuremberg.

The bin Laden dividend

Numerous people have argued that one potential benefit from the death of Osama bin Laden is that it will enable the U.S. Government to diminish its war commitments in that part of the world and finally arrest the steady erosion of civil liberties perpetrated in the name of the War on Terror (as though any of that is the government's goal).  By contrast, I've argued from the start that the bin Laden killing is likely to change nothing of any significance, except that -- if anything -- the resulting nationalistic pride, the vicarious sensations of power and strength, the substantial political benefits for the President, and the renewed faith in military force would be more likely to intensify rather than arrest these trends.  But that was definitely a minority opinion.

As but one example, this person (cheered on by Democratic Party commentators) -- aside from falsely attributing to me numerous statements I never made, and thereafter refusing to post my response in the comment section -- chided me for failing to realize that "Bin Laden's death also makes things like closing the gulag at Guantanamo Bay seem likelier and more possible" and that it also "marks what could be the beginning of the end of many of the evils that Glenn Greenwald has consistently written about over the past decade, the opportunity to reassert the principles he determinedly wants to defend." Andrew Sullivan argued that, in the wake of the bin Laden killing, "Obama will have the leverage to shift strategy drastically [in Afghanistan] in the coming year" and that the "average American" will conclude that "it is time to leave. With our heads high. And justice done."  Numerous commenters and others have similarly insisted that bin Laden's death will spawn reversals in America's War on Terror policies over the last decade.

It's still far too early to know with any certainty what the outcome will be.  There's an inertia to our policies that is not going to vanish overnight.  Still, it's worth considering the numerous events that have occurred since bin Laden's killing, as I think it gives at least some sense of the direction in which we'll head:

The New York Times, Tuesday:

The House Armed Services Committee is expected to take up a defense authorization bill on Wednesday that includes a new authorization for the government to use military force in the war on terrorism. . . . 

The provision states that Congress "affirms" that "the United States is engaged in an armed conflict with Al Qaeda, the Taliban, and associated forces," and that the president is authorized to use military force -- including detention without trial -- of members and substantial supporters of those forces.

That language, which would codify into federal law a definition of the enemy that the Obama administration has adopted in defending against lawsuits filed by Guantánamo Bay detainees, would supplant the existing military force authorization that Congress passed overwhelmingly on Sept. 14, 2001. It instead named the enemy as the perpetrators of the Sept. 11 attacks.

Critics of [the] provision have reacted with alarm to what they see as an effort to entrench in a federal statute unambiguous authority for the executive branch to wage war against terrorists who are deemed associates of Al Qaeda but who lack a clear tie to the Sept. 11 attacks.

In a joint letter to Congress, about two dozen groups -- including the American Civil Liberties Union and the Center for Constitutional Rights -- contended that the proposal amounted to an open-ended grant of authority to the executive branch, legitimizing an unending war from Yemen to Somalia and beyond. 

"This monumental legislation -- with a large-scale and practically irrevocable delegation of war power from Congress to the president -- could commit the United States to a worldwide war without clear enemies, without any geographical boundaries" and "without any boundary relating to time or specific objective to be achieved," the letter warned.

Human Rights First, yesterday:

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Associated Press, this morning:

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Associated Press, last Tuesday:

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The article noted:  "At least one civilian died when the missiles damaged the restaurant and a nearby home."

 

Associated Press, this morning:

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 The article noted:  "A neighbor, who goes by the name of Ayatullah, says the girl was 12 years old."

 

New York Times, Tuesday: 

Inside the Pentagon, however, officials make the case that rather than using Bin Laden's death as a justification for withdrawal, the United States should continue the current strategy in Afghanistan to secure additional gains and to further pressure the Taliban to come to the bargaining table for negotiations on political reconciliation.

 

The Los Angeles Times, Friday:

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Reuters, Sunday:

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We haven't been doing all of these things -- or any of them -- because of Osama bin Laden.  We've been doing this because it generates massive benefits for the country's most powerful political and economic factions, and that hasn't changed.  Bin Laden was but one of the pretexts to justify it all.  And with him gone (but definitely not forgotten), multiple other pretexts will quickly be created to take his place.  Do the events since his killing leave any real doubt about that?  As but one example, Marc Ambinder -- in a hagiographic love letter to the secretive, glorious Joint Special Operations Command that oversaw the bin Laden killing -- reveals as though it's the most natural thing in the world:  

JSOC has fought a silent but successful proxy war against Iran's Revolutionary Guards -- even, National Journal has learned, engaging directly with its soldiers in at least three countries. It has broken up nuclear-proliferation rings. JSOC has developed contingency plans to safeguard Pakistan's nuclear weapons in the event of a coup in that nation. Its intelligence unit helps Colombian commandos dismantle lucrative drug rings that finance Hezbollah operations around the world. It has provided intelligence that has helped to break up domestic terrorism rings. Operating in tandem with other special forces and regular military battalions, JSOC eviscerated al-Qaida's network in Iraq. It is nothing less than a secret army within the U.S. military.

We're fighting a secret, undeclared, undiscussed hot war against Iran in multiple nations (of limited scope, at least for now), as well as numerous other hidden conflicts, using "a secret army within the U.S. military."  Does anyone believe any of this undemocratic, massive imperial machinery -- and the liberty abridgments that inevitably accompany it -- will be dismantled or even meaningfully reduced because Osama bin Laden is dead?

It is true that a few members of Congress are now advocating an Afghanistan withdrawal (though many were already war skeptics), and there is mixed polling on the war there (though the last thing that determines the end of an American war is public opinion). It would be superb -- a serious cause for celebration -- if the bin Laden killing, now that it's a fait accompli, did produce these benefits, and it's certainly worth exploiting that event to try to bring it about.  And we may in fact be tired of our imperial adventure in Afghanistan and ready to re-direct resources to other countries.  But America's National Security State and its posture of Endless War was and remains motivated by far more than one man, or even Al Qaeda generally.  There's no will on the part of the political class to reverse it -- quite the opposite -- and there won't be until the citizenry demands it. 

The WikiLeaks Grand Jury and the still escalating War on Whistleblowing

The contrast between these two headlines from this morning tells a significant story: From The Guardian (click image to enlarge):

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From NPR:

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___________

As Julian Assange wins the Sydney Peace Prize for "exceptional courage in pursuit of human rights," NPR reports that "a federal grand jury in Virginia is scheduled to hear testimony on Wednesday from witnesses" in the criminal investigation of his whistle-blowing group, as "prosecutors are trying to build a case against [the] WikiLeaks founder [] whose website has embarrassed the U.S. government by disclosing sensitive diplomatic and military information."  The NPR story -- based in part on my reporting of a Grand Jury Subpoena served two weeks ago in Cambridge -- explains what has long been clear: that "the WikiLeaks case is part of a much broader campaign by the Obama administration to crack down on leakers."

Specifically, NPR accurately reports, the effort to turn Assange and WikiLeaks into criminals for doing nothing more than what newspapers, Bob Woodward, and administration officials frequently do -- disclose government secrets to the public without authorization -- is merely one prong in the Obama administration's unprecedented war against whistleblowing:

A Worrisome Development

National security experts say they can't remember a time when the Justice Department has pursued so many criminal cases based on leaks of government secrets.

Steve Aftergood of the Federation of American Scientists has been following five separate prosecutions, part of what he calls a tremendous surge by the Obama administration.

For people who are concerned about freedom of the press, access to national security information, it's a worrisome development," says Aftergood, who writes for the blog Secrecy News [ed: and is a vocal WikiLeaks critic]. 

Aftergood says some of the most important disclosures of the past decade, including abuses by the U.S. military at the Abu Ghraib prison in Iraq, came out because people concerned about overreach blew the whistle on the government.

 "Leaks serve a very valuable function as a kind of safety valve," he adds. "They help us to get out the information that otherwise would be stuck."

 The Obama Justice Department doesn't agree.

The vast majority of publicly disclosed high-level government corruption and lawbreaking over the last decade has come from unauthorized leaks, with the majority of it over the last year from WikiLeaks. Thus, it's hardly surprising that high-level government officials -- even those who ran on a platform of protecting and venerating whistle-blowing -- want to destroy it through a mix of persecution and intimidation.  To its credit, the DOJ recently announced that it would not prosecute Thomas Tamm, the mid-level DOJ officials who informed the New York Times about the Bush warrantless eavesdropping program.  But that has been a rare exception, as the DOJ is actively prosecuting an array of whistleblowers who exposed similar levels of corruption and wrongdoing -- in blatant violation of Obama's degree to "Look Forward, not Backward" when it comes to protecting powerful Bush-era political officials who committed serious crimes.  Indeed, the prosecution of WikiLeaks -- which, unlike government employees, has no duty to safeguard government secrets -- would be the greatest blow to press freedoms and whistleblowing in the last several decades at least.

Assange was awarded this peace prize yesterday because -- unlike other Peace Prize recipients -- his work has been relentlessly devoted to impeding wars (not escalating them) by exposing the truth about the destruction and suffering they spawn. Beyond that, even the most vehement WikiLeaks critics, such as NYT Executive Editor Bill Keller, admit that the disclosures from WikiLeaks (and allegedly Bradley Manning) played at least some role in sparking the democratic rebellions in the Middle East, as those documents highlighted in all new detail the breadth of the corruption of many of those despots:

And that does not count the impact of these revelations on the people most touched by them. WikiLeaks cables in which American diplomats recount the extravagant corruption of Tunisia's rulers helped fuel a popular uprising that has overthrown the government.

And yet, many of the very same people who cheer for those democratic uprisings continue simultaneously to cheer for the administration that (a) steadfastly supported those dictators (and in some cases still support them in exchange for doing America's bidding) while (b) persecuting with Grand Jury investigations, imprisonment, and crushing solitary confinement those who seem to have helped spawn those rebellions.  That the U.S. Government is obsessed with crushing one of the few remaining avenues for learning what it does (whistleblowing) -- and forever imprisoning those who have brought more transparency to its wrongdoing and deceit than all media outlets combined (WikiLeaks, Assange and, if the accusations are true, Manning) -- underscores just how central a role secrecy plays in maximizing government power and the ability of officials to abuse it.  This secrecy regime is the heart and soul of the National Security State.

But to really see the true purposes served by secrecy, just consider this truly amazing ACLU report from yesterday.  In 2009, the ACLU filed a FOIA request seeking information about how the Government has interpreted and applied the FISA Amendments Act of 2008 -- the bipartisan legislation which vested lawbreaking telecoms with retroactive immunity and drastically expanded the Government's domestic eavesdropping powers (in order to legalize the crux of the once-controversial Bush NSA program).  Unsurprisingly, the Most Transparent Administration Ever refused to provide anything other than the most heavily redacted documents in response to that FOIA request, though it was enough, explained the ACLU, to "confirm that the government had interpreted the statute as broadly as we had feared and even that the government had repeatedly violated the few limitations that the statute actually imposed."

But since then, the ACLU has been aggressively pursuing more documents, including attempting to find out which specific private industry telecoms are cooperating in these eavesdropping programs.   Two weeks ago, the DOJ provided its explanations as to why it refuses to produce that information.  Among those documents was what the ACLU calls " this unexpectedly honest explanation from the FBI" about the real reason it insists on concealing this information.  Just behold the noble purposes fulfilled by the secrecy regime (click on image to enlarge):

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As the ACLU succinctly put it:

There you have it. The government doesn't want you to know whether your internet or phone company is cooperating with its dragnet surveillance program because you might get upset and file lawsuits asserting your constitutional rights. Would it be such a bad thing if a court were to consider the constitutionality of the most sweeping surveillance program ever enacted by Congress?

This is the real purpose of the Government's devotion to the secrecy regime:  it prevents any meaningful accountability on the part of those in power.  Preventing the public from knowing what they're doing (and what their "private partners" are doing) ensures no backlash ensues and there is no accountability possible.  That, manifestly, is the Obama administration's overarching goal in adopting the Bush/Cheney version of the "state secrets" privilege and thus shielding even presidential crimes from judicial review: by keeping everyone, including courts, in the dark about what they do, they shield themselves (the public/private consortium that runs the National Security and Surveillance States) from the rule of law.  And by keeping the public in the dark about what they do, they maintain exclusive control over information and thus shield and enable their own propaganda.

Whistleblowers in general -- and WikiLeaks and Assange in particular -- are one of the very, very few genuine threats to that scheme.  And that -- and that alone -- is why they are being targeted with such fervor and force.  And it's why those who believe in greater transparency and in subverting that secrecy regime should do everything possible to defend whistleblowers from this assault.

* * * * *

Philosophy Professor Jonathan Lear has a very interesting article in The New Republic on what motivated P.J. Crowley to speak out against Bradley Manning's detention conditions and the important public values fulfilled by that type of (exceedingly rare) candor from public officials.

And for those in Boston: on May 26, I'll be speaking to the annual meeting of the ACLU in Massachusetts.  Ticket information is here.  In advance of that event, I was interviewed by them on multiple civil liberties issues; those short video segments can be viewed here.

Democratic principles in the War on Terror

Senate Republicans yesterday filibustered the confirmation of James Cole, President Obama's nominee to become Deputy Attorney General.  There were a couple of reasons for their opposition, but it is principally grounded in the views Cole expressed when opposing Bush's Terrorism policies.  Specifically, a 2002 Legal Times Op-Ed authored by Cole contained the offending statements, as cited yesterday by GOP Sen. Chuck Grassley; behold the irony in Grassley's remarks:

Back in 2002, Mr. Cole was the author of an opinion piece in the Legal Times. In that piece, he stated, "For all the rhetoric about war, the Sept. 11 attacks were criminal acts of terrorism against a civilian population, much like the terrorist acts of Timothy McVeigh in blowing up the federal building in Oklahoma City, or of Omar Abdel-Rahman in the first effort to blow up the World Trade Center. The criminals responsible for these horrible acts were successfully tried and convicted under our criminal justice system, without the need for special procedures that altered traditional due process rights."

In other words:  Terrorists should be treated as criminals and accorded full due process within our normal "criminal justice system" -- i.e., dealt with as part of a law enforcement paradigm -- not treated as warriors subjected to "the rhetoric of war" and "special procedures that altered traditional due process rights."  In his now-controversial Op-Ed, Cole added:

The attorney general justifies much of his agenda by pointing to the "war on terrorism" and saying that it is an extreme situation that calls for extreme actions. But too much danger lies down that road. The protections built into our criminal justice system are there not merely to protect the guilty, but, more importantly, to protect the innocent. They must be applied to everyone to be effective. What are we fighting for if, in the name of protecting the principles that have raised this nation to the pinnacle of civilization, we abandon those very principles?

Cole's point:  even the most heinous Terrorists must be accorded the full and normal protections of our criminal justice system before being punished.  Even more notably -- and ironically -- Media Matters recently published a defense of Cole from the attacks launched by Fox News, arguing that Cole's views were mainstream because he was objecting to lawless Bush policies:

Cole criticized the Bush administration for, among other things, 'detain[ing] non-citizens without the benefit of counsel or judicial review, facilitat[ing] the implementation of military tribunals to try noncitizens for terrorist crimes," and for 'institut[ing] the use of the classification 'enemy combatant' to hold American citizens without access to counsel or judicial review.  

Those, of course, are, with some modifications, the policies that the Obama administration has itself adopted (see: "Obama administration readies indefinite detention order for Guantanamo detainees" - "Obama to resume Gitmo military trials").  While Obama hasn't argued that American citizens can be held "without access to counsel or judicial review," he has gone further than that by arguing that American citizens can be targeted for killing by drone attacks without judicial review, and has sought to carry out that policy.  So many of the general theories and specific policies so vehemently condemned by Cole during the Bush years (when he was doing little other than voicing the standard Democratic view on such matters) are the ones this administration has now expressly and vigorously adopted as its own.

Speaking of that last policy -- the Obama administration's claimed power to assassinate American citizens without any due process, far from any battlefield -- consider what Obama's Attorney General Eric Holder argued in 2004 when he formally objected in court to the Bush administration's mere attempt to detain (not to kill, but merely to detain) U.S. citizen Jose Padilla without any due process.  Remember:  at the time, it was claimed that Padilla was one of the world's most dangerous Terrorists: actively attempting to detonate a "dirty bomb" in a large U.S. city; he was eventually convicted in court of terrorism-related crimes.  But no matter:  Holder insisted that the President was Constitutionally barred from acting against Padilla without full due process and judicial oversight.

The brief filed by Holder (along with others) was emphatic in insisting that the President lacked the authority to use military force away from an active battlefield, and that the claimed power to use such force against American citizens was dangerous in the extreme.  First, consider how Holder's Brief described the radical Bush position; is this not exactly the same argument as the one made now by those justifying Obama's power to target Awlaki and other U.S. citizens for killing? (click image to enlarge)

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. . . .

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Let's repeat that last line:  "Legal standards developed to deal with traditional wars cannot be imported wholesale into this very different context."

Further, Holder's Brief made the vital point that a President has the right to order military force on an active battlefield, but not away from the battlefield; away from a battlefield, argued Holder's Brief, the President must use the criminal justice system and afford due process to U.S. citizens -- even one accused of plotting horrible Terrorist attacks -- before acting against them:

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After emphasizing the numerous law enforcement tools the President has to detain and arrest citizens suspected of plotting Terrorist attacks, Holder's Brief powerfully warned of the serious dangers in allowing the President to punish citizens as Terrorists without any due process or oversight from courts -- and again, remember, these dangers came, Holder argued, merely from allowing the President to detain (not target for killing) American citizens without due process (as Holder's Brief put it: the dangers of allowing "the Executive to imprison citizens indefinitely only upon its own say-so").  Please pay particular attention to the last part:

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Holder's Brief concluded by eloquently pointing out that "the broad and largely unsupervised authority claimed by the Executive Branch" -- to unilaterally declare Americans to be Terrorists and punish them without proof of guilt -- "is also inconsistent with the fundamental principles of our Constitution."

Most importantly, Holder's Brief recognized that applying judicial oversight and Constitutional limits to a President's powers in the "War on Terror" might impede the Government's ability to capture Terrorists. It might, acknowledged the Brief, even impede the President from stopping a Terrorist plot.  But even a heightened risk of attack, Holder insisted, is the necessary and worthwhile price we willingly pay for being a nation of laws, free from unrestrained Presidential power.  Just marvel at the now-fringe position Holder so vehemently defended back then against the Bush administration:

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. . . .

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I could live to be 500 years old, and I will never hear anyone be able to offer any remotely conceivable means of reconciling (a) those steadfast principles defended by Eric Holder -- as part of his opposition to George Bush's power to punish citizens as Terrorists with no due process -- with (b) multiple Obama policies, including the asserted right to assassinate U.S. citizens away from a battlefield with no due process.

Finally, in light of the events of the last week -- including not only the attempted Awlaki assassination but also the bin Laden killing -- it's worthwhile to underscore what Democrats once said about Terrorism generally.  In 2004, the Democratic nominee John Kerry famously (and correctly) said -- echoing Cole's words above -- that Terrorism was comparable to prostitution, gambling, and organized crime:  "nuisances" to be dealt with primarily through law enforcement but that will never go away entirely.  In a 2008 Atlantic article, Matt Yglesias declared that "Kerry was right" when he " said something about counterterrorism being primarily a question to be dealt with through law enforcement and intelligence rather than something that should be understood as primarily a kind of war," and as proof, Yglesias cited this study from the Rand Corporation, which concluded as follows:

Its report said that the use of military force by the United States or other countries should be reserved for quelling large, well-armed and well-organized insurgencies, and that American officials should stop using the term "war on terror" and replace it with "counterterrorism."

"Terrorists should be perceived and described as criminals, not holy warriors, and our analysis suggests there is no battlefield solution to terrorism," said Seth Jones, the lead author of the study and a Rand political scientist.

That view now, of course -- once the centerpiece of the Democratic Party's Terrorism arguments -- is decreed to be a fringe and radical view.  The same is true for Cole's argument that Terrorists should be deemed criminals, not warriors, and treated exactly the same way we treat criminals: with the full range of due process rights under our normal system of justice.  Believe me, to make that very same argument now is to prompt accusations of radicalism and even Terrorist sympathies.  And the same is also true of Holder's arguments that we must not allow Presidents the power to unilaterally decree citizens to be Terrorists and punish them as such; instead, they are entitled to full due process, even if it means, as Holder said, that doing so would risk a Terrorist attack.  That's because "our Nation has always been prepared to accept some risk as the price of guaranteeing" that Presidents do not have unrestrained power to act against citizens.

All of those views -- Democratic Party orthodoxy a mere three years ago -- have become relegated to the fringe under the Obama presidency by virtue of the President's adoption of what were once purely GOP/right-wing positions.  But it's worth recalling that they were indeed the backbone of the Democrats' once-vigorous opposition (at least in rhetoric) to the Bush/Cheney worldview of using war and battlefield theories to fight Terrorism and to erode core Constitutional and civil liberties.