Glenn Greenwald's Blog, page 120

Question for Juan Cole

(updated below - Update II) 

University of Michigan Professor Juan Cole, for whom I have a lot of respect, has become one of the left's leading advocates of American involvement in the war in Libya. I don't agree with his arguments -- for reasons set forth here, here and here, among others -- but he's one of the people I read when I want to be challenged in my opposition, as his arguments are usually well-reasoned and always in good faith. During the Iraq War, Cole was responsible for one of the most humiliating massacres ever seen in an online debate, when he exposed Jonah Goldberg's war advocacy as the know-nothing, cowardly, adolescent tripe it was. During the course of that debate, Cole wrote this:

Although I do not believe that everyone who advocates a war must go and fight it, I do believe that young men who advocate a war must go and fight it. . . . I don't think there is anything at all unpatriotic about a young man opposing a war and declining to enlist. But a young man (and this applies to W. and Cheney too) who mouths off strongly about the desirability of a war is a coward and a hypocrite if he does not go to fight it.

Note that this was not a principle specific to the Iraq War; it was expressed as a universal principle applying to wars in general. My question for Cole is this: does this principle apply to supporters of the U.S. war in Libya? Elsewhere, Cole argued -- and I'm unable to find the specific post despite substantial searching, so I'm relying on recollection -- that the test for whether a war is justifiable is whether one is willing to risk one's own life -- or the life of one's children -- to fight it. Cole said he supported the war in Afghanistan because he could answer "yes" for that war, but not for the war in Iraq. How about the war in Libya: is that the proper question to apply to determine its justifiability, and if so, would Cole be willing to risk his own life or his children's to fight that war?

I'm not asking rhetorically to make a point, but rather because I'm genuinely interested in his answer. Obviously, a war confined to air attacks (such as Libya) entails much less risk than a ground war (such as in Iraq), but it's by no means risk-free. Perhaps a war that entails less risk to the lives of American service members alleviates (in Cole's mind) the burden on (young, male) war supporters to go fight it, but it's hard to see how his principle -- which did not contain any such caveats -- can accommodate that sort of an exception. I'm not adopting Cole's principle regarding the duty of war supporters -- I've actually argued in favor of a narrower standard for "chicken-hawkism" -- but am merely asking how Cole applies his own principle.

The reason this is worth asking -- other than to know whether principles are being consistently applied -- is because this is what is necessary to ensure that "war as a last resort" is something other than an empty platitude. What that term should mean, at minimum, is that we shouldn't start wars except in situations where we consider the necessity so compelling that we would be willing to risk our own lives in pursuit of it. As Afghanistan war advocate (and Libya War skeptic) Andrew Exum put it when explaining the importance of Secretary Gates' admission that we have no "vital interests" in Libya: "Vital interests are those interests for which you are willing to bleed. And so if we have no vital interests in Libya, why are F-15 pilots punching out and having to be rescued by Marines?" That's the minimum test necessary to give meaning to "war as a last resort": a cause for which "you are willing to bleed." If that's the case, how do Cole's principles -- as pronounced for Iraq and Goldberg -- apply to Libya?

 

UPDATE: Cole has posted a reply, here.

 

UPDATE II:  Here is the quote of Cole's which I said I could not find, regarding his test for whether war is justifiable (h/t axenicely):

My reply would be simple. If you are arguing for war, you don't have to ask all these fancy questions. There are really only two questions you have to answer. The first is, would you yourself be willing to die fighting for this cause you have espoused? The second is, would you be willing to see your 18-year-old son or daughter killed for this cause? (I do not ask if you would be glad or satisfied; I ask if you would be willing).

My answer with regard to the aftermath of September 11 and defeating al-Qaeda in Afghanistan is, yes, I would have been willing to go fight and die myself to protect my country from another such attack. And, had my son been of age and had he enlisted after September 11, I could have accepted that and everything it entailed.

With regard to Iraq, the answer to both questions in my case is "no." I would not have been willing to risk my own life to dislodge Saddam Hussein from power. And, I would certainly not have been willing to see my son risk his, nor would I like to see him ever sent to Iraq as a draftee, because I believe the entire aftermath of the war has been handled with gross incompetence, and I certainly don't want my flesh and blood mauled by the machinations of Richard Perle and his buddies.

That was in reply to Christopher Hitchins' advocacy of numerous wars without fighting in them.

Obama and American exceptionalism

Numerous commentators have observed that President Obama's Libya speech last night rested on an affirmation of American "exceptionalism." That conviction, they contend, was expressed by Obama's appeal to "America's responsibility as a leader" and by this claim: "some nations may be able to turn a blind eye to atrocities in other countries. The United States of America is different."

Steve Benen proclaimed that Obama's speech should put an end to the debate over whether he believes in America's exceptionalism: "the president wasn't subtle -- the United States isn't like other countries; ours is a country with unique power, responsibilities, and moral obligations." Andrew Sullivan observed that exceptionalism was "the core message of the President's speech" and that "he clearly believes in that exceptionalism - and now will live with its onerous responsibilities." Mark Kleiman announced that last night's speech exposed "one of the stupidest of right-wing talking points about Obama . . . that he somehow disbelieves in the exceptional nature of the American project" (though Kleiman also bizarrely equates that accusation with "the lie that Barack Obama does not love his country" -- as though you can't love your country if you don't believe in its exceptionalism).

Adam Serwer wrote: "After Obama's speech last night. . . anyone who alleges the president doesn't believe [in exceptionalism] deserves to be laughed out of town."  And the most enthusiastic praise for Obama's speech came from Bill Kristol in The Weekly Standard, who gushed that with this speech, "President Obama had rejoined -- or joined -- the historical American foreign policy mainstream" and "the president was unapologetic, freedom-agenda-embracing, and didn't shrink from defending the use of force or from appealing to American values and interests."

It's long been obvious that Obama deeply believes in American exceptionalism, and I agree entirely with these commentators who say that last night's speech left no doubt about that conviction (not because he says he believes it in a speech, but because his actions reflect that belief). But what none of them say -- other than Kristol -- is whether they believe this to be a good thing. Does the U.S. indeed occupy a special place in the world, entitling and even obligating us to undertake actions that no other country is entitled or obligated to undertake? And, if so, what is the source of these entitlements and obligations? Is it merely our superior military power, or is there something else that has vested us with this perch of exceptionalism?

That the U.S. is exceptional is not, of course, some sort of unusual or marginal belief in American political culture. Quite the contrary: those who reject it are the ones who find themselves in the minority. Beginning almost immediately after 9/11, George W. Bush frequently asserted that America was "called" -- by whom he didn't say -- "to defend freedom." A Gallup poll from late last year found that 80% of Americans believe their country "has a unique character that makes it the greatest country in the world." There are very few political propositions which can command 80% support; that this one does shows just how much American exceptionalism is solidified as political orthodoxy in the United States.

The pervasiveness of this exceptionalism isn't really surprising. It's a common human desire to believe that one is special, unique, better than all others. Few people aspire to ordinariness. We view the world -- physically and mentally -- from our own personal perspective, and are inherently situated at the center of it. As tribal beings, we naturally believe that our customs and the beliefs with which we were inculcated from childhood are superior to Theirs. Personally, I've never understood how the following thought doesn't obliterate -- or at least severely dilute -- the conviction of one's exceptionalism:

The probability that I happened to be born in the greatest country on Earth -- or, even more so, the greatest country ever to exist on Earth in all of human history -- is minute. Isn't it far more likely that I believe this because I was taught to, rather than because it's true?

But the desire to believe something is a powerful force, and this belief is thus extremely widespread.  Still, it's not a particularly appealing trait for an individual to run around hailing themselves "the greatest in the world," so it becomes perfectly acceptable -- mandatory even -- to nationalize this sentiment: "my country, the United States, is the greatest country in the world," and thus -- to use Benen's description of Obama's mindset -- "the United States isn't like other countries; ours is a country with unique power, responsibilities, and moral obligations" (This is not a question of whether one finds things to admire in America; just as one can appreciate one's own strengths without believing one is The Greatest in the World, one can appreciate attributes of American political life -- its domestic protections of free speech and press rights, its relatively integrated racial and ethnic diversity, its class mobility (as evidenced by two of the last three Presidents), its social progress -- without believing it to be The Greatest).

Exceptionalism can, of course, take different forms and result in different consequences. Notwithstanding Kristol's ecstacy over Obama's speech, Serwer insists that Obama's version of exceptionalism is different than the American Right's:

 

Conservatives seem to believe that American Exceptionalism justifies America doing whatever it wants in the world. By contrast, Obama — at least rhetorically — emphasizes that being exceptional is a standard to meet, not a license for America to capriciously enforce its will upon others. Where conservatives sometimes refuse to acknowledge that there are limits to American power, Obama acknowledged: "The United States will not be able to dictate the pace and scope of this change. Only the people of the region can do that."

That overstates the difference. The reality is that Bush never really acted alone; his attack on Iraq was joined by an international coalition larger than the one participating in Obama's war humanitarian intervention in Libya, and the last time I checked, Obama had no multilateral coalition or U.N. approval for his relentless drone attacks in Pakistan or covert bombings in Yemen. Stephen Walt argues, persuasively I think, that the only real difference between neocons and liberal interventionists is that the latter insist on legitimizing their wars through the U.N. while the former don't care to. But let's grant that there are some meaningful differences in how the Democratic and GOP versions of exceptionalism manifest.

The fact remains that declaring yourself special, superior and/or exceptional -- and believing that to be true, and, especially, acting on that belief -- has serious consequences. It can (and usually does) mean that the same standards of judgment aren't applied to your acts as are applied to everyone else's (when you do X, it's justified, but when they do, it isn't). It means that you're entitled (or obligated) to do things that nobody else is entitled or obligated to do (does anyone doubt that the self-perceived superiority and self-arrogated entitlements of Wall Street tycoons is what lead them to believe they can act without constraints?). It means that no matter how many bad things you do in the world, it doesn't ever reflect on who you are, because you're inherently exceptional and thus driven by good motives. And it probably means -- at least as it expresses itself in the American form -- that you'll find yourself in a posture of endless war, because your "unique power, responsibilities, and moral obligations" will always find causes and justifications for new conflicts.

It's a nice political point on the President's behalf to insist that he has proven his belief in American exceptionalism. That insulates him from a political vulnerability (i.e., from the perception that he rejects a widely held view), which is nice if politically defending the President is an important goal for you. But the harder -- and far more important -- question is whether this American exceptionalism that you attribute to him is actually true, whether it's well-grounded, and whether it should serve as a premise for our actions in the world.

* * * * *

For those in Boston and/or Providence, I'll be speaking next week at Harvard, Brown and the National Conference on Media Reform. Details on those events -- and other appearances in April -- are here.

Foxes and Internet henhouses

Reuters, yesterday:

Some day soon, when pro-democracy campaigners have their cellphones confiscated by police, they'll be able to hit the "panic button" -- a special app that will both wipe out the phone's address book and emit emergency alerts to other activists. The panic button is one of the new technologies the U.S. State Department is promoting to equip pro-democracy activists in countries ranging from the Middle East to China with the tools to fight back against repressive governments. . . .

The U.S. technology initiative is part of Secretary of State Hillary Clinton's push to expand Internet freedoms, pointing out the crucial role that on-line resources such as Twitter and Facebook have had in fueling pro-democracy movements in Iran, Egypt, Tunisia and elsewhere. "The world is full of ... governments and other authorities who are capable of breaking into that system," [Assistant U.S. Secretary of State Michael] Posner said. "A lot of activists don't know what their options are. They don't have access to technology."

The New York Times, September 27, 2010:Techgeek, January 8, 2011:CNET, April 13, 2010:

Google and an alliance of privacy groups have come to Yahoo's aid by helping the Web portal fend off a broad request from the U.S. Department of Justice for e-mail messages, CNET has learned. . .

For its part, the Justice Department has taken a legalistic approach: a 17-page brief it filed last month acknowledges that federal law requires search warrants for messages in "electronic storage" that are less than 181 days old. But, Assistant U.S. Attorney Pegeen Rhyne writes in a government brief, the Yahoo Mail messages don't meet that definition. "Previously opened e-mail is not in 'electronic storage,'" Rhyne wrote in a motion filed last month.

The Washington Post, Dana Priest and William Arkin, "Top Secret America," July 10, 2010:

Every day,collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications.

Thankfully, the U.S. is working hard to protect people around the world from "repressive governments" which are "capable of breaking into" the Internet and -- even worse -- use that power to invade people's accounts and learn with whom they're speaking and associating! And there's a special prize for the first person who goes into the comment section to say that this is as a false equivalency because the U.S. doesn't open fire on their own citizens (along those lines: if I were granted one wish from the Logic Genie, it would be the spread of the realization that to compare aspects of A and B is not to posit that A = B; blood and fire engines are both red, yet are not identical).

Billionaire self-pity and the Koch brothers

Since the financial crisis of 2008, one of the most revealing spectacles has been the parade of financial elites who petulantly insist that they are the victims of societal hostility:  political officials heap too much blame on them, public policy burdens them so unfairly, the public resents them, and -- most amazingly of all -- President Obama is a radical egalitarian who is unprecedentedly hostile to business interests.  One particularly illustrative example was the whiny little multi-millionaire hedge fund manager (and CNBC contributor), Anthony Scaramucci, who stood up at an October, 201o, town hall meeting and demanded to know:  "when are we going to stop whacking at the Wall Street pinata?"

The Weekly Standard now has a very lengthy defense of -- including rare interviews with -- Charles and David Koch, the libertarian billionaires who fund everything from right-wing economic policy, union-busting, and anti-climate-change advocacy to civil liberties and liberalized social policies -- though far more the former goals than the latter.  In this article one finds the purest and most instructive expression of billionaire self-pity that I think I've ever seen -- one that is as self-absorbed and detached from reality as it destructive.  It's really worth examining their revealed mindset to see how those who wield the greatest financial power (and thus the greatest political power) think of themselves and those who are outside of their class.

I'm not someone who sees the Koch Brothers as some sort of unique threat.  I mostly regard them as little more than a symbol of the death of democratic values in the U.S. -- the way in which the possession of vast financial resources is an absolute prerequisite to making any impact on the national political process, and conversely, how those without such resources are politically inconsequential and impotent (short of their fomenting serious social unrest).  Every political movement needs demons lurking behind every problem -- the more hidden and omnipotent the better -- and the Koch Brothers now serve the same function for the Left as George Soros long served for the Right:  the bogeymen who motivate the loyalists and on whom everything bad, including political losses, can be blamed. 

There's no question in my mind that the unrestrained power over the political process and both political parties enjoyed by oligarchs is the single greatest political problem the country faces -- the overarching problem -- but in the scheme of corporate and oligarchical dominance, the Koch Brothers are a small part of that dynamic.  Nor do I believe that they're motivated in their political activism by personal profit:  for people with a net worth of $20 billion, there are vastly more efficient ways to convert one's wealth into greater wealth than spending money to influence public policy; I think they're True Believers.

That said, this Weekly Standard interview shows how delusional and extreme the Koch Brothers are -- though in ways quite representative of other resentful elites.  Let's begin with this:

Ask Charles Koch what he thinks about Obama and he looks like he's just bit into a lemon. "He's a dedicated egalitarian," Charles said. "I'm not saying he's a Marxist, but he's internalized some Marxist models -- that is, that business tends to be successful by exploiting its customers and workers."

David agreed. "He's the most radical president we've ever had as a nation," he said, "and has done more damage to the free enterprise system and long-term prosperity than any president we've ever had."  David suggested the president's radicalism was tied to his upbringing. "His father was a hard core economic socialist in Kenya," he said. "Obama didn't really interact with his father face-to-face very much, but was apparently from what I read a great admirer of his father's points of view. So he had sort of antibusiness, anti-free enterprise influences affecting him almost all his life. It just shows you what a person with a silver tongue can achieve."

So Barack Obama is a "dedicated egalitarian" who has "internalized Marxist" ideas in the Kenyan socialist tradition.  Just compare that to actual facts.  From The Huffington Post today:

Despite high unemployment and a largely languishing real estate market, U.S. businesses are more profitable than ever, according to federal figures released on Friday.

U.S. corporate profits hit an all-time high at the end of 2010, with financial firms showing some of the biggest gains, data from the federal Bureau of Economic Analysis show. Corporations reported an annualized $1.68 trillion in profit in the fourth quarter. The previous record, without being adjusted for inflation, was $1.65 trillion in the third quarter of 2006.

Many of the nation's preeminent companies have posted massive increases in profits this year. General Electric posted worldwide profits of $14.2 billion, while profits at JPMorgan Chase were up 47 percent to $4.8 billion.

Since Obama was inaugurated, the Dow Jones has increased more than 50% -- from 8,000 to more than 12,000; the wealthiest recieved a massive tax cut; the top marginal tax rate was three times less than during the Eisenhower years and substantially lower than during the Reagan years; income and wealth inequality are so vast and rising that it is easily at Third World levels; meanwhile, "the share of U.S. taxes paid by corporations has fallen from 30 percent of federal revenue in the 1950s to 6.6 percent in 2009."  During this same time period, the unemployment rate has increased from 7.7% to 8.9%; millions of Americans have had their homes foreclosed; and the number of Americans living below the poverty line increased by many millions, the largest number since the statistic has been recorded.  Can you smell Obama's radical egalitarianism and Marxist anti-business hatred yet?

Then there are those whom Obama has empowered.  His first chief of staff, Rahm Emanuel, is a business-revering corporatist who made close to $20 million in 3 short years as an investment banker, while his second, Bill Daley, served for years as JP Morgan's Midwest Chairman.  His Treasury Secretary is undoubtedly the most loyal and dedicated servant Wall Street has ever had in that position, while Goldman Sachs officials occupy so many key positions in his administration that a former IMF and Salomon Brothers executive condemned what he called "Goldman Sachs's seeming lock on high-level U.S. Treasury jobs."  Obama's former OMB Director recently left to take a multi-million-dollar position with Citigroup.  From the start, Obama's economic policies were shaped by the Wall Street-revering neo-liberal Rubinites who did so much to serve corporate America during the Clinton years.  Meanwhile, the President's choice to head his Council on Jobs and Competitiveness -- General Electric CEO Jeffrey Immelt -- heads a corporation that "despite $14.2 billion in worldwide profits - including more than $5 billion from U.S. operations - [] did not owe taxes in 2010":  an appointment the White House still defends.

Some of these trends pre-date Obama, but few have been retarded during his presidency, while many have accelerated.   Whether one finds this state of affairs desirable or not, no rational person can describe them as the by-product of a Marxist, business-hating egalitarian.  Quite the opposite.  The political power of America's richest has never been greater, and the level of their responsibility and collective burden has never been less.  Meanwhile, for ordinary Americans, the remaining remnants of their financial security and middle class comforts rapidly erodes.  It's true that the U.S. Government has little regard for the free market:  they intervene constantly in the free market on behalf of the nation's wealthiest and most powerful business interests; it's crony capitalism, corporatism:  government run by corporations (or, as Dick Durbin said of the Congress in which he serves:  "the banks own the place").

For billionaires to see themselves as the True Victims, to complain that the President and the Government are waging some sort of war against them in the name of radical egalitarianism, is so removed from reality -- universes away -- that's it's hard to put into words.  And the fiscal recklessness that the Kochs and their comrades tirelessly point to was a direct by-product of the last decade's rule by the Republican Party which they fund:  from unfunded, endless wars to a never-ending expansion of the privatized National Security and Surveillance States to the financial crisis that exploded during the Bush presidency.  But whatever else is true, there are many victims of fiscal policy in America:  the wealthiest business interests and billionaires like the Koch Brothers are the few who are not among them. 

Then, quite relatedly, we have a slew of complaints that the Koch Brothers are being so terribly persecuted by all the protests and criticisms directed at them.  Just behold this carousel of whiny self-victimhood:

Koch's secretary said that an editor for a left-wing website, the Buffalo Beast, had telephoned the governor posing as David Koch and recorded the conversation. And Walker had fallen for it! He'd had a 20-minute conversation with this bozo, not once questioning the caller's identity. . . .

Anger washed over David like a red tide. He'd been victimized by some punk with a political agenda. "It's really identity theft," he told me a month later, during an interview at Koch Industries' headquarters. "And I think it's extremely dishonest to misrepresent yourself. I think there's a question of integrity. And the person who would do that has got to be an incredibly dishonest person."

David found the whole affair disturbing. "One additional thing that really bothered me," he said, "was that the press attacked me rather than the guy who impersonated me! And I was criticized as someone who's got a death grip on the governor and his policies. And that I control him -- I mean, that's insane!" . . .

As the media campaign intensified, demonstrators started showing up at the Koch campus in Wichita. A left-wing blogger ambushed David when he traveled to Washington to see the 112th Congress sworn in. The liberal group Common Cause organized a protest at the most recent Koch fundraising seminar in Palm Springs. The lefties outside the hotel unfurled a white banner with the words "Koch Kills" printed in red. Drops of blood fell from each letter. "These people were very, very extreme," David said, "and I think very dangerous" . . . "But that was pretty shocking, to see what we're up against, or what the country's up against: to have an element like this."

Oh, my:  journalists were more interested in discussing the fact that the Wisconsin Governor spent a full 20 minutes briefing a billionaire donor in the middle of his career-defining political crisis than they were analyzing the journalistic ethics of an obscure Internet muckraker.  And what a travesty that the Koch Brothers -- after spending hundreds of millions of dollars to shape American politics and advocate for policies that will affect the lives of tens of millions of people -- have to endure scrutiny, and questions, and protests, and criticisms, and anger!  Does the unfairness never end for them?  

As anyone who writes about politics can tell you, having vitriol and slander regularly heaped on you is part of the price one pays for the benefit of having a platform; only the most self-absorbed complain and see it as some sort of unique cross to bear.  But the Koch brothers go far beyond mere writing about political issues.  They single-handedly fund advocacy groups and covert campaigns on a wide variety of highly controversial issues that adversely impact huge numbers of people.  That they expect to be able to do that without any vigorous response or opposition or anger is just reflective of their oozing sense of entitlement:  the same syndrome that leads them to perversely believe that the True Victims in America's political culture are its wealthiest and most powerful.

This strain of delusional self-victimization is not uncommon.  One commonly finds those who are the strongest and most powerful convincing themselves that they are the oppressed and the marginalized.  Many Americans believe that -- as they invade, bomb and occupy countless Muslim countries -- that they are the ones being victimized by the Muslim world, while many Israelis and their loyalists believe that the nuclear-armed, constantly invading, occupying and bombing nation is the real victim of aggression and militarism in the Middle East.  In Imperial Ambitions, Noam Chomsky described this inverted sense of victimhood in the foreign policy context this way:

In one of his many speeches, to U.S. troops in Vietnam, [Lyndon] Johnson said plaintively, "There are three billion people in the world and we have only two hundred million of them. We are outnumbered fifteen to one. If might did make right they would sweep over the United States and take what we have. We have what they want." That is a constant refrain of imperialism. You have your jackboot on someone's neck and they're about to destroy you.

The same is true with any form of oppression. And it's psychologically understandable. If you're crushing and destroying someone, you have to have a reason for it, and it can't be, "I'm a murderous monster." It has to be self-defense. "I'm protecting myself against them. Look what they're doing to me." Oppression gets psychologically inverted; the oppressor is the victim who is defending himself.

This is exactly the psychological affliction that leads Wall Street plunderers and tycoons and billionaires to see themselves as the victims of the resentful lower-classes and the "radical egalitarians" who run the U.S. Government.  Even as they get richer and everyone else gets poorer, even as the very few remaining restraints on their political power are abolished, even as the disparities in wealth and power grow ever-larger, they become increasingly convinced that everything is stacked against them, that there is a grand conspiracy to deprive them of what is rightfully theirs.  All of this could be confined to a fascinating, abstract psychological study if not for the fact that the people who think this way exercise the most political power and continue to exercise more and more.

Top Bush-era GITMO and Abu Ghraib psychologist is WH's newest appointment

One of the most intense scandals the field of psychology has faced over the last decade is the involvement of several of its members in enabling Bush's worldwide torture regime.  Numerous health professionals worked for the U.S. government to help understand how best to mentally degrade and break down detainees. At the center of that controversy was -- and is -- Dr. Larry James.  James, a retired Army colonel, was the Chief Psychologist at Guantanamo in 2003, at the height of the abuses at that camp, and then served in the same position at Abu Ghraib during 2004.  

Today, Dr. James circulated an excited email announcing, "with great pride," that he has now been selected to serve on the "White House Task Force entitled Enhancing the Psychological Well-Being of The Military Family."  In his new position, he will be meeting at the White House with Michelle Obama and other White House officials on Tuesday.

For his work at Abu Ghraib and Guantanamo, Dr. James was the subject of two formal ethics complaints in the two states where he is licensed to practice: Louisiana and Ohio.  Those complaints -- 50 pages long and full of detailed and well-documented allegations -- were filed by the International Human Rights Clinic of Harvard Law School's Human Rights Program, on behalf of veterans, mental health professionals and others.  The complaints detailed how James "was the senior psychologist of the Guantánamo BSCT, a small but influential group of mental health professionals whose job it was to advise on and participate in the interrogations, and to help create an environment designed to break down prisoners."  Specifically:

During his tenure at the prison, boys and men were threatened with rape and death for themselves and their family members; sexually, culturally, and religiously humiliated; forced naked; deprived of sleep; subjected to sensory deprivation, over-stimulation, and extreme isolation; short-shackled into stress positions for hours; and physically assaulted. The evidence indicates that abuse of this kind was systemic, that BSCT health professionals played an integral role in its planning and practice. . . .

Writing in 2009, Law Professor Bill Quigley and Deborah Popowski, a Fellow at the Harvard Law School Human Rights Program, described James' role in this particularly notorious incident:

In 2003, Louisiana psychologist and retired Col. Larry James watched behind a one-way mirror in a US prison camp while an interrogator and three prison guards wrestled a screaming, near-naked man on the floor.

The prisoner had been forced into pink women's panties, lipstick and a wig; the men then pinned the prisoner to the floor in an effort "to outfit him with the matching pink nightgown." As he recounts in his memoir, "Fixing Hell," Dr. James initially chose not to respond. He "opened [his] thermos, poured a cup of coffee, and watched the episode play out, hoping it would take a better turn and not wanting to interfere without good reason ..."

Although he claims to eventually find "good reason" to intervene, the Army colonel never reported the incident or even so much as reprimanded men who had engaged in activities that constituted war crimes.

James treated numerous detainees who were abused, degraded, and tortured, yet never took any steps to stop or even report these incidents.  Last year, Steven Reisner -- senior faculty member and supervisor at the International Trauma Studies Program, who also teaches at New York University Medical School and Columbia University -- told Democracy Now: "there is a lot of evidence that has been made public showing that the torture programs in the CIA and at Guantánamo, the Department of Defense, were created and overseen by health professionals, particularly psychologists" and that psychologists were at these facilities "to use their professional expertise to break down the detainees." James, argued Dr. Reisner, was directly implicated because:

Larry James was the chief BSCT starting in January 2003. And when you read the standard operating procedures for mental health, for how to -- behavior protocols for detainees during the time that Larry James was the chief psychologist, you find institutionalized abuse and torture -- isolation for thirty days at a time with absolutely no contact, prohibition of the International Committee of the Red Cross to see these detainees, no access even to religious articles, to the Qur'an, unless they cooperate with interrogations, not to mention frequent interrogation.

For his part, Dr. James claims he attempted to protect the detainees under his care from abuse and psychological injury.  Meanwhile, the Louisiana psychology board refused to review the merits of the complaint against James on the grounds that the alleged acts were too old (outside the statute of limitations), while the Ohio board issued a three-sentence, cursory letter which decreed, without any explanation whatsoever, that "it has been determined that we are unable to proceed to formal action in this matter."  So while the charges against him have not been formally sustained by either board, neither have they been evaluated or rejected by any apparent consideration of the merits. Judicial review of the Ohio board's decision is still possible (a Louisiana federal court ruled it lacked jurisdiction to review the board's Statute of Limitations findings).

Despite the overwhelming evidence against him, James should not be deemed guilty in the absence of a formal adjudication.  But the White House's conduct in selecting him is nonetheless baffling, at best.  Of all the psychologists to choose from, why would they possibly choose to honor and elevate the former chief psychologist of Guantanamo and Abu Ghraib at the height of the Bush abuses?  More disturbing still, among those most damaged by detainee abuse are the service members forced to participate in it; why would the White House possibly want to put on a task force about the health of military families someone, such as Dr. James, who at the very least is directly associated with policies that so profoundly harmed numerous members of the military and their families?

This isn't exactly a powerful Task Force, but what this appointment does is have the White House -- yet again -- signal that it does not really take very seriously the Bush torture regime.  On appearance grounds alone, the Obama administration should not be embracing and legitimizing the Bush-era Chief Psychologist of Guantanamo and Abu Ghraib.  Is there really nobody in the White House who was able to come to that realization on their own, or is this part of some twisted "reaching out" effort to show that they view bygones as bygones when it comes to the war crimes our leaders committed and whom the Obama administration continues to protect?  Whatever the explanation, the symbolism here is as ugly as the mindset underlying it.

Urgent leak investigation needed

A serious leak of classified information has just taken place -- which, as we all know, is a dastardly crime for which the harshest punishment is merited.  To make matters even more grave, this time the unauthorized disclosure has taken place during A Time of War, resulting in the illegal publication of sensitive information about the nation's enemy.  The leak was transmitted to Associated Press, which then published it to the world:

Libyan state television showed blackened and mangled bodies that it said were victims of airstrikes in Tripoli. . . . A U.S. intelligence report on Monday, the day after coalition missiles attacked Gadhafi's Bab al-Aziziya compound in the capitol, said that a senior Gadhafi aide was told to take bodies from a morgue and place them at the scene of the bomb damage, to be displayed for visiting journalists. A senior U.S. defense official revealed the contents of the intelligence report on condition of anonymity because it was classified secret.

I wonder if Eric Holder will shortly announce an investigation to find out who is responsible for this leak?  Will the guilty party be charged with a capital crime and be held in solitary confinement near a cell occupied by Bradley Manning?  Only time will tell.  Thankfully, AP has granted anonymity to this courageous whistleblower and will hopefully safeguard his identity in the event that a criminal investigation ensues.  After all, leaking information that is "classified secret" is a crime which this administration takes very, very seriously.

Miranda is Obama's latest victim

One of the central pledges of Barack Obama's campaign was that -- as he put it early in his presidency -- the Bush administration had gone wildly wrong because it "established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable -- a framework that failed to rely on our legal traditions and time-tested institutions; that failed to use our values as a compass." Instead, he implored, we must fight Terrorism only "with an abiding confidence in the rule of law and due process, in checks and balances and accountability." Thus, he thunderously vowed, "We must never -- ever -- turn our back on its enduring principles for expedience sake."

The number of instances in which Obama has violently breached his own alleged principles when it comes to the War on Terror and the rule of law are too numerous to chronicle in one place. Suffice to say, it is no longer provocative or controversial when someone like Yale Law Professor Jack Balkin writes, as he did the other day, that Obama "has more or less systematically adopted policies consistent with the second term of the George W. Bush Administration." No rational person can argue that or even tries to any longer. It's just a banal expression of indisputable fact.

Today, the Obama DOJ unveiled the latest -- and one of the most significant -- examples of its eagerness to assault the very legal values Obama vowed to protect. The Wall Street Journal reports that "new rules allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades." The only previous exception to the 45-year-old Miranda requirement that someone in custody be apprised of their rights occurred in 1984, when the Rehnquist-led right-wing faction of the Supreme Court allowed delay "only in cases of an imminent safety threat," but these new rules promulgated by the Obama DOJ "give interrogators more latitude and flexibility to define what counts as an appropriate circumstance to waive Miranda rights."

For that reason, the WSJ is surely correct when it calls these new guidelines "one of the Obama administration's most significant revisions to rules governing the investigation of terror suspects in the U.S." Note that, in 7 years of prosecuting the War on Terror after 9/11, the Bush administration never tried to dilute Miranda guidelines (though doing so for them was irrelevant because they simply imprisoned even American citizens (such as Jose Padilla) without any charges or due process of any kind).

Ironically, it was the administration -- and its followers -- that defended the sanctity of Miranda back in late 2009, when the Cheney/Kristol/Limbaugh/Palin Right attacked Obama for Mirandizing the "underwear bomber" as soon as he was taken into custody. Back then, the White House and its loyalists stridently argued that Miranda does not interfere with effective interrogations and that, in any event, it is a pillar of our justice system that should not be eroded. We'll undoubtedly be hearing from the same precincts now -- from the very same people -- that diluting Miranda is necessary to Keep Us Safe; that it's fully within a President's right to change Miranda guidelines without Congress (just like he can start wars on his own); and that it's merely a tiny little change that pales in comparison to the Important Issues of the Day. For anyone who defends Obama's new decision here, shouldn't you also admit that Rush Limbaugh and Bill Kristol were right in criticizing Obama back then and demanding dilution of Miranda for Terrorism suspects?

The WSJ report says that the change was motivated not only by controversy over Mirandizing the Underwear Bomber, but also Times Square attempted bomber Faisal Shazad. Shazad, though, is an American citizen. Although the DOJ memo is not public -- the WSJ saw a copy of it -- this presumably means that the dilution of Miranda applies to non-citizens and U.S. citizens alike, including those captured on American soil. In other words, with the sweep of a unilateral pen, Miranda simply no longer compels the government to read you your rights if you are accused of involvement in Terrorism and FBI agents unilaterally decide that it shouldn't.

Two weeks ago, when Obama issued his Executive Order providing for a system of indefinite detention at Guantanamo, GOP Rep. Peter King lavished him with praise. King has done the same thing with this decision, as the anti-Muslim, Terrorism-obsessed Congressman has long been one of the leading advocates for these Miranda changes. As usual in the national security and Terrorism areas, Obama's most vocal cheerleaders are found on the Bush-following Right.

Although The Most Transparent Administration Ever continues to conceal this Miranda memo, it appears that some parts of Miranda-related rights remain, including the right to appear before a magistrate within 24 hours and a ban on the admissibility of statements made prior to the reading of rights. But the crux of Miranda is the right to be advised of one's Constitutional rights upon being taken into custody -- that's why these guidelines for implementing the Supreme Court decision have been in place for so long -- and it is this right which the Obama DOJ has simply waved away, despite this rather important fact:

The administration suggested legislation last year to alter Miranda but was rebuffed by Congress, administration officials said. Its proposals faltered due to objections from Democrats, who had no appetite for tinkering with Supreme Court precedent, and Republicans who aired civil-liberties concerns or rejected civilian custody for terror suspects.

The right here is established by the Supreme Court as guaranteed by the Constitution, and the specific right in question -- not to have pre-Miranda statements admissible in court -- is one the administration cannot change and does not purport to. But the guidelines long in place for reading a detainee his rights were vital to preserving the Miranda framework -- for preventing abusive interrogations and coerced statements -- and it is this protection which the Obama DOJ is seriously diluting with such a permissive and discretionary standard.

Worse, the administration tried but failed to convince Congress to modify it with legislation. But, as we well know, nothing deters a President's will: so they just went ahead and did it on their own. The very same political faction that spent the last decade decrying assertions of unconstrained executive power and the ignoring of Congressional will in the area of civil liberties is now its enthusiastic champion.

When it comes to debates between Left and Right over the Constitution and due process, Miranda has always been viewed as one of the key defining issues. Richard Nixon was obsessed with demonizing the Warren Court for providing too many rights to the accused, and his attacks on Miranda were part of a decades-long war by the American Right on the constitutional liberties established over the last half-century. With a swoop of a pen -- more than 9 years removed from the 9/11 attacks -- Barack Obama has done more to erode Miranda than any right-wing politician could have dreamed of achieving.

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Speaking of abandoning one's campaign pledges, PolitiFact yesterday compared (a) Obama's 2007 statement that Presidents have no power to start wars without Congressional approval except to stop an attack or imminent on America with (b) his current conduct in Libya and positions to justify it, and found what it calls a "FULL FLIP". But the good thing about being Barack Obama is that you're justified in what you do even when you first do X and then do Not X.

Thus, when you argue that wars need Congressional approval, you're standing up for the Constitution; when you start a war without Congressional approval, you're a humanitarian. When you announce you will release torture photos in the government's possession, you're a stalwart defender of transparency; when you change your mind two weeks later and announce you'll conceal those photos, you're standing up for The Troops. When you give Miranda warnings to Terrorism suspects, you're honoring the Rule of Law and protecting American values; when you turn around and deny those very same rights, you're showing your devotion to Keeping us Safe.

The manipulative pro-war argument in Libya

Advocating for the U.S.'s military action in Libya, The New Republic's John Judis lays out the argument which many of his fellow war advocates are making: that those who oppose the intervention are guilty of indifference to the plight of the rebels and to Gadaffi's tyranny:

So I ask myself, would these opponents of U.S. intervention (as part of U.N. Security Council approved action), have preferred:

(1) That gangs of mercenaries, financed by the country's oil wealth, conduct a bloodbath against Muammar Qaddafi's many opponents?

(2) That Qaddafi himself, wounded, enraged, embittered, and still in power, retain control of an important source of the world's oil supply, particularly for Europe, and be able to spend the wealth he derives from it to sow discord in the region?

(3) And that the movement toward democratization in the Arab world -- which has spread from Tunisia to Bahrain, and now includes such unlikely locales as Syria -- be dealt an enormous setback through the survival of one of region's most notorious autocrats?

If you answer "Who cares?" to each of these, I have no counter-arguments to offer, but if you worry about two or three of these prospects, then I think you have to reconsider whether Barack Obama did the right thing in lending American support to this intervention.

Note how, in Judis' moral world, there are only two possibilities: one can either support the American military action in Libya or be guilty of a "who cares?" attitude toward Gadaffi's butchery. At least as far as this specific line of pro-war argumentation goes, this is just 2003 all over again. Back then, those opposed to the war in Iraq were deemed pro-Saddam: indifferent to the repression and brutalities suffered by the Iraqi people at his hands and willing to protect his power. Now, those opposed to U.S. involvement in the civil war in Libya are deemed indifferent to the repression and brutalities suffered by the Libyan people from Gadaffi and willing to protect his power. This rationale is as flawed logically as it is morally.

Why didn't this same moral calculus justify the attack on Iraq? Saddam Hussein really was a murderous, repressive monster: at least Gadaffi's equal when it came to psychotic blood-spilling. Those who favored regime change there made exactly the same arguments as Judis (and many others) make now for Libya: it's humane and noble to topple a brutal dictator; using force is the only way to protect parts of the population from slaughter (in Iraq, the Kurds and Shiites; in Libya, the rebels); it's not in America's interests to allow a deranged despot (or his deranged sons) to control a vital oil-rich nation; and removing the tyrant will aid the spread of freedom and democracy in the Middle East. Why does that reasoning justify war in Libya but not Iraq?

In Foreign Policy, Stephen Walt argues that "liberal interventionists" and neocons share most of the same premises about America's foreign policy and its role in the world, with the sole exception being that the former seek to act through international institutions to legitimize their military actions while the latter don't. Strongly bolstering Walt's view is this morning's pro-war New York Times Editorial, which ends this way:

Libya is a specific case: Muammar el-Qaddafi is erratic, widely reviled, armed with mustard gas and has a history of supporting terrorism. If he is allowed to crush the opposition, it would chill pro-democracy movements across the Arab world.

Wasn't all of that at least as true of Saddam Hussein? Wasn't that exactly the "humanitarian" case made to justify that invasion? And wasn't that exactly the basis for the accusation against Iraq war opponents that they were indifferent to Saddam's tyranny -- i.e., if you oppose the war to remove Saddam, it means you are ensuring that he and his sons will stay in power, which in turn means you are indifferent to his rape rooms and mass graves and are willing to stand by while the Iraqi people suffer under his despotism? How can the "indifference-to-suffering" accusation be fair when made against opponents of the Libya war but not when made against Iraq war opponents?

But my real question for Judis (and those who voice the same accusations against Libya intervention opponents) is this: do you support military intervention to protect protesters in Yemen, Bahrain, Saudi Arabia and other U.S. allies from suppression, or to stop the still-horrendous suffering in the Sudan, or to prevent the worsening humanitarian crisis in the Ivory Coast? Did you advocate military intervention to protect protesters in Iran and Egypt, or to stop the Israeli slaughter of hundreds of trapped innocent civilians in Gaza and Lebanon or its brutal and growing occupation of the West Bank?

If not, doesn't that necessarily mean -- using this same reasoning -- that you're indifferent to the suffering of all of those people, willing to stand idly by while innocents are slaughtered, to leave in place brutal tyrants who terrorize their own population or those in neighboring countries? Or, in those instances where you oppose military intervention despite widespread suffering, do you grant yourself the prerogative of weighing other factors: such as the finitude of resources, doubt about whether U.S. military action will hurt rather than help the situation, cynicism about the true motives of the U.S. government in intervening, how intervention will affect other priorities, the civilian deaths that will inevitably occur at our hands, the precedents that such intervention will set for future crises, and the moral justification of invading foreign countries? For those places where you know there is widespread violence and suffering yet do not advocate for U.S. military action to stop it, is it fair to assume that you are simply indifferent to the suffering you refuse to act to prevent, or do you recognize there might be other reasons why you oppose the intervention?

In the very same Editorial where it advocates for the Libya intervention on the grounds of stopping government violence and tyranny, The New York Times acknowledges about its pro-intervention view: "not in Bahrain or Yemen, even though we condemn the violence against protesters in both countries." Are those who merely "condemn" the violence by those two U.S. allies but who do not want to intervene to stop it guilty of indifference to the killings there? What rationale is there for intervening in Libya but not in those places? In a very well-argued column, The Washington Post's Eugene Robinson today provides the only plausible answer:

Anyone looking for principle and logic in the attack on Moammar Gaddafi's tyrannical regime will be disappointed. . . . Why is Libya so different? Basically, because the dictators of Yemen, Bahrain and Saudi Arabia -- also Jordan and the Persian Gulf sheikdoms, for that matter -- are friendly, cooperative and useful. Gaddafi is not. . . .

Gaddafi is crazy and evil; obviously, he wasn't going to listen to our advice about democracy. The world would be fortunate to be rid of him. But war in Libya is justifiable only if we are going to hold compliant dictators to the same standard we set for defiant ones. If not, then please spare us all the homilies about universal rights and freedoms. We'll know this isn't about justice, it's about power.

I understand -- and absolutely believe -- that many people who support the intervention in Libya are doing so for good and noble reasons: disgust at standing by and watching Gadaffi murder hundreds or thousands of rebels. I also believe that some people who supported the attack on Iraq did so out of disgust for Saddam Hussein and a desire to see him removed from power. It's commendable to oppose that type of despotism, and I understand -- and share -- the impulse.

But what I cannot understand at all is how people are willing to believe that the U.S. Government is deploying its military and fighting this war because, out of abundant humanitarianism, it simply cannot abide internal repression, tyranny and violence against one's own citizens. This is the same government that enthusiastically supports and props up regimes around the world that do exactly that, and that have done exactly that for decades.

By all accounts, one of the prime administration advocates for this war was Hillary Clinton; she's the same person who, just two years ago, said this about the torture-loving Egyptian dictator: "I really consider President and Mrs. Mubarak to be friends of my family." They're the same people overseeing multiple wars that routinely result in all sorts of atrocities. They are winking and nodding to their Yemeni, Bahrani and Saudi friends who are doing very similar things to what Gadaffi is doing, albeit (for now) on a smaller scale. They just all suddenly woke up one day and decided to wage war in an oil-rich Muslim nation because they just can't stand idly by and tolerate internal repression and violence against civilians? Please.

For the reasons I identified the other day, there are major differences between the military actions in Iraq and Libya. But what is true of both -- as is true for most wars -- is that each will spawn suffering for some people even if they alleviate it for others. Dropping lots of American bombs on a country tends to kill a lot of innocent people. For that reason, indifference to suffering is often what war proponents -- not war opponents -- are guilty of. But whatever else is true, the notion that opposing a war is evidence of indifference to tyranny and suffering is equally simple-minded, propagandistic, manipulative and intellectually bankrupt in both the Iraq and Libya contexts. And, in particular, those who opposed or still oppose intervention in Bahrain, Yemen, Egypt, Iraq, the Sudan, against Israel, in the Ivory Coast -- and/or any other similar places where there is widespread human-caused suffering -- have no business advancing that argument.

Court allows constitutional challenge to new FISA law

In October, 2007, candidate Barack Obama -- in response to the Bush administration's demand for a new FISA law -- emphatically vowed that he would filibuster any such bill that contained retroactive amnesty for telecoms which participated in Bush's illegal spying program.  At the time, that vow was politically beneficial to Obama because he was seeking the Democratic nomination and wanted to show how resolute he was about standing up against Bush's expansions of surveillance powers and in defense of the rule of law.  But in a move that shocked many people at the time -- though which turned out to be completely consistent with his character -- Obama, once he had the nomination secured in July, 2008, turned around and did exactly that which he swore he would not do:  he not only voted against the filibuster of the bill containing telecom amnesty, but also voted in favor of enactment of the underlying bill.  That bill, known as the FISA Amendments Act of 2008, was then signed into law by George W. Bush at a giddy bipartisan signing ceremony in the Rose Garden, which -- by immunizing telecoms and legalizing most of the Bush program -- put a harmless, harmonious end to what had been the NSA scandal.

Beyond telecom amnesty, the FISA Amendments Act also wildly expanded the Government's power to conduct warrantless surveillance of telephone calls and emails.  In large part, the bill was intended to legalize the illegal Bush NSA program that had caused so much faux controversy among Democrats.  As Yale Law Professor Jack Balkin put it:  "Through the FISA Amendments Act of 2008, Congress has legitimated many of the same things people are now complaining about"; separately, Balkin contended that Obama voted for the bill because, as President, he himself would want the same powers Bush had to intercept people's communications without bothering with court approval.

When trying to placate his numerous supporters furious over his reversal, Obama insisted he voted for the bill with "the firm intention -- once I'm sworn in as president -- to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future" (that promise caused his then-large band of faithful followers to evangelize that Obama only voted for the bill to make sure he won the election, so that he could then use his majestic power to fix civil liberties abuses of the type he had just voted for; that was when people were still willing with a straight face to invoke the 11-dimensional chess justification for everything he did).  Needless to say, it would have been unhealthy in the extreme holding one's breath for that "we'll-fix-it-when-I'm-President" promise to be fulfilled, as -- more than 2 years into his presidency -- nothing like it has remotely happened. 

Immediately upon enactment of the Bush/Obama-supported FISA Amendments Act, the ACLU filed a lawsuit seeking to enjoin its enforcement on the ground that the law's expanded warrantless eavesdropping powers violated the Fourth Amendment.  Aside from its warped and radically enlarged "state secret" doctrine, the Bush administration's standard tactic for avoiding judicial review of their illegal eavesdropping programs was a two-step "standing" exercise grounded in extreme cynicism:  (1) they shrouded their eavesdropping actions in total secrecy so that nobody knew who was targeted for this eavesdropping, and they then (2) exploited that secrecy to insist that since nobody could prove they were actually subjected to this eavesdropping, nobody had "standing" to contest its legality in courts (that's how the Bush DOJ got an appeals court to dismiss on procedural grounds a lower court ruling that their NSA program broke the law and violated the Constitution). 

In the case brought by the ACLU, the plaintiffs were a variety of human rights activists, lawyers and journalists (including Naomi Klein and Chris Hedges), who argued that both they and their sources have a reasonable fear of being subjected to this expanded surveillance, and that fear-- by rendering them unable to perform their jobs and exercise their Constitutional rights -- constitutes sufficient harm to vest them with "standing" to challenge the new eavesdropping law.  In response, the Bush administration argued -- as always -- that the plaintiffs' inability to prove that they were actually targeted by this expanded surveillance precluded their suing; their mere "fear" of being targeted, argued the Bush DOJ, was insufficient to confer standing to sue.

In late 2008, a lower court judge granted the Bush argument and dismissed the ACLU's lawsuit on "standing" grounds.  On appeal, the Obama DOJ -- needless to say -- faithfully adopted exactly the Bush argument to demand dismissal of the ACLU's lawsuit on procedural grounds of "standing," i.e., without assessing the merits of whether this law violates the Fourth Amendment.  

But today, a three-judge appellate court dealt a serious blow to the Bush/Obama tactic for shielding government eavesdropping from judicial review (i.e., placing secret executive surveillance above and beyond the rule of law).  The unanimous court ruled that the plaintiffs' fear that they will be subjected to this expanded warrantless eavesdropping is reasonable given the sweeping powers the law vests in the Executive, that these fears substantially impede their work, and that these impediments constitute actual harm sufficient to allow them to challenge the constitutionality of the FISA Amendments Act:

This may sound like a legalistic development but its significance extends far beyond that.  Unlike the bastardized Bush/Obama "state secrets" weapon for avoiding judicial review, "standing" is actually a legitimate and important constitutional restriction on a court's jurisdiction.  The idea is that courts are permitted to resolve only actual disputes between actual parties where the defendant's conduct has uniquely injured the plaintiff in direct ways; we don't want courts to be free-floating, omnipotent tribunals that issue binding answers to every abstract political question.  They are empowered to issue legal rulings only when there is an actual "case or controversy" before them involving parties directly and uniquely harmed by the challenged conduct.

But what the Bush DOJ and then the Obama DOJ have done is manipulate that important "standing" limitation beyond all recognition into a weapon of full-scale presidential immunity.   If one were to accept their tactic, a President need only break the law in total secrecy and prevent anyone from finding out what exactly he did and to whom he did it.  With that secrecy in place, the DOJ can then tout that secrecy as a means of preventing any judicial challenges to the President's conduct -- which is another way of saying that the President has placed his conduct outside of the rule of law (because we did it in secret, everyone is unable to sue over it).  Obviously, if one can break laws but then block courts from adjudicating allegations of lawbreaking, then one is -- by definition -- free to break the law.  That has been the case thus far with the Bush administration thanks to the warped doctrines it pioneered and the Obama DOJ then swallowed whole.  

This danger is particularly acute in the post-9/11 world where so much of what the Executive branch does of any significance -- I'd say most of what it does -- takes place behind a wall of secrecy.  To allow Presidents to escape all legal challenges on "standing" grounds merely because they managed to conceal the identity of the victims of their lawbreaking would be, in essence, to have laws that apply to Presidents only in theory but not in reality.

Today's ruling puts at least some brakes -- for now -- on that license of lawlessness.  It rejected the Bush/Obama claim that citizens must prove they have been targeted by an illegal presidential program before they have the right to ask a court to declare it illegal.  Instead, a plaintiff's reasonable fear that their rights are being violated due to enactment of an allegedly unconstitutional law  -- combined with actual harm suffered as a result of that fear -- suffices to allow them to challenge the legality of those actions.  It is, of course, possible that the Supreme Court can review and reverse this ruling, but the Second Circuit is a well-regarded court -- situated on the level immediately below the Supreme Court -- and this well-reasoned decision will have significant sway.  At the very least, this is an important ruling in eroding what is easily one of the worst political problems plaguing America in the post-9/11 world: the ease with which Presidents and their underlings can insulate their secret actions from the rule of law.

Libya and the familiar patterns of war

The Los Angeles Times, March 18, 2003:

U.S. Raises Terrorism Alert Amid Concerns of Retaliation

Bracing for a backlash from impending war with Iraq, the Bush administration put the nation on high alert for a terrorist attack and announced that it was redoubling efforts to enhance security at home.

The decision to raise the terrorism threat level from yellow to orange, the third such move in the last six months, followed several months worth of intelligence reports indicating a strong likelihood of some type of terrorist attack or retaliation if the U.S. went to war with Iraq. Those strikes, officials said, could come from organized Al Qaeda cells or groups sent here by Iraqi President Saddam Hussein, or from individuals or small groups who sympathize with them.

The New York Times, today:

American Official Warns That Qaddafi May Lash Out With New Terrorist Attacks

The United States is bracing for possible Libyan-backed terrorist attacks, President Obama's top counterterrorism official said on Friday.

The official, John O. Brennan, said that the military attacks on civilians ordered in recent days by Libya's leader, Col. Muammar el-Qaddafi, coupled with his track record as a sponsor of terrorism, had heightened worries within the administration as an international coalition threatens military action against Libya.

Asked if American officials feared whether Colonel Qaddafi could open a new terrorism front, Mr. Brennan said: "Qaddafi has the penchant to do things of a very concerning nature. We have to anticipate and be prepared for things he might try to do to flout the will of the international community."

Among the threats the United States is focusing on is Libya's stockpile of deadly mustard gas, he said.

The attack on Iraq and the intervention in Libya are, in critical ways, vastly different, and glib comparisons should be avoided.  Fear-mongering was the primary means of selling the Iraq war to the public. whereas purported humanitarian goals have taken center stage now (though humanitarian appeals -- rape rooms, mass graves, chemical attacks on his own people, and sadistic sons!! -- were also prominently featured in 2003 and in virtually every other war ever started).  That the Arab League advocated the Libya intervention, and it now has U.N. endorsement, lend a perceived international legitimacy to it that Iraq so disastrously lacked.  Because both political parties' leaders are even more supportive of this military action than they were for Iraq, the domestic debate will be much less contentious.  At least for now, Obama is substantially more cautious than Bush ever was in limiting the U.S. commitment.  And given that the Libya intervention has not even begun, no comparisons can be made between its execution and the brutal, inhumane slaughter and destruction that characterized the eight-year assault on Iraq; it's possible (though far from guaranteed) that this intervention could be short, relatively bloodless and successful.

All that said, it is striking how wars -- no matter how they're packaged -- ultimately breed the same patterns.  With public opinion split or even against the war in Libya (at least for now) -- and with questions naturally arising about why we're intervening here to stop the violence but ignoring the growing violence from our good friends in Yemen, Bahrain and elsewhere -- the administration obviously knows that some good, old-fashioned fear-mongering and unique demonization (Gadaffi is a Terrorist with "deadly mustard gas" who might attack us!!) can only help.  Then there's the fact that the same faction of war-loving-from-a-safe-distance "hawks" that took the lead in cheering for the attack on Iraq -- neocons on the Right and their "liberal interventionist" counterparts in The New Republic/Brookings/Democratic Party officialdom world -- are playing the same role here.  And many of the same manipulative rhetorical tactics are now wielded against war opponents:  the Libyan rebels are the new Kurds (they want us to act to protect them!), and just as those who opposed the attack on Iraq were routinely accused of indifference toward if not support for Saddam's tyranny, those who oppose this intervention are now accused of indifference to Gadaffi's butchery (as always:  are those refraining from advocating for military intervention in Yemen or Saudi Arabia or Bahrain or the Sudan or dozens of other places indifferent to the violence and other forms of suffering there?).

Foreign Policy's Josh Rogin reports that Obama just this week changed his mind on Libya from opposing to supporting intervention because he became convinced that this would change America's posture in the region by placing us on the side of freedom and democracy.  But would it really do that?  As our Saudi, Yemeni, Bahraini, Jordanian, Kuwaiti, Egyptian and Iraqi close friends continue to impose varying degrees of domestic oppression and violence, is yet another military intervention in an oil-rich Muslim nation really going to transform rather than bolster how we're perceived in that region?  This claim -- we'll be viewed as strong and magnanimous in the Muslim world -- was also, of course, a featured claim justifying the attack on Iraq.  And just as was true for Iraq, how this ends up being perceived, and what it turns out to be in fact, depends on a whole slew of unknowable factors, including what we end up doing there, how long it takes, and whom we end up supporting.  

As for Brennan's warning that this action may trigger Terrorist attacks on the U.S., I suppose -- just as was true for the similar 2003 warnings -- that this is a possible repercussion of our intervention.  But doesn't that really underscore the key point?  If we really want to transform how we're perceived in that part of the world, and if we really want to reduce the Terrorist threat, isn't the obvious solution to stop sending our fighter jets and bombs and armies to that part of the world rather than finding a new Muslim country to target for war on a seemingly annual basis?  I have no doubt that some citizens who support the intervention in Libya are doing so for purely humanitarian and noble reasons, just as was true for some supporters of the effort to remove the truly despicable Saddam Hussein.  But the intentions of those who support the war shed little light on the motives of those who prosecute the war and even less light on what its ultimate outcomes will be.

* * * * *

There's one other difference between Iraq and Libya worth noting:  at least with the former, there was a sustained, intense P.R. campaign to persuade the public to support it, followed by a cursory Congressional vote (agreed to by the Bush White House only once approval was guaranteed in advance).  By contrast, the intervention in Libya was presidentially decreed with virtually no public debate or discussion; it's just amazing how little public opinion or the consent of the citizenry matters when it comes to involving the country in a new war.  That objection can and should be obviated if Obama seeks Congressional approval before deploying the U.S. military.  On some level, it would be just a formality -- it's hard to imagine the Congress ever impeding a war the President wants to fight -- but at least some pretense of democratic and Constitutional adherence should be maintained.