Glenn Greenwald's Blog, page 123

The military/media attacks on the Hastings article

Last June, when Rolling Stone published Michael Hastings' article which ended the career of Obama's Afghanistan commander, Gen. Stanley McChrystal -- an article which was just awarded the prestigious Polk Award -- the attacks on Hastings were led not by military officials but by some of Hastings' most celebrated journalistic colleagues.  The New York Times' John Burns fretted that the article "has impacted, and will impact so adversely, on what had been pretty good military/media relations" and accused Hastings of violating "a kind of trust" which war reporters "build up" with war Generals; Politico observed that a "beat reporter" -- unlike the freelancing Hastings -- "would not risk burning bridges by publishing many of McChrystal's remarks"; and an obviously angry Lara Logan of CBS News strongly insinuated (with no evidence) that Hastings had lied about whether the comments were on-the-record and then infamously sneered:  "Michael Hastings has never served his country the way McChrystal has."  Here's Jon Stewart last year mocking the revealing media disdain for Rolling Stone and Hastings in the wake of their McChrystal story.

Hastings has now written another Rolling Stone article that reflects poorly on a U.S. General in Afghanistan.  The new article details how Lt. Gen. William Caldwell "illegally ordered a team of soldiers specializing in 'psychological operations' to manipulate visiting American senators into providing more troops and funding for the war" and then railroaded the whistle-blowing officer who objected to the program.  Now, the same type of smear campaign is being launched at Hastings as well as at his primary source, Lt. Col. Michael Holmes:   from military officials and their dutiful media-servants.  Ever since publication of this new article, military-subservient "reporters" have disseminated personal attacks on Hastings and his journalism as well as on Holmes and his claims, all while inexcusably granting anonymity to the military leaders launching those attacks and uncritically repeating them.  As usual, anyone who makes powerful government or military leaders look bad -- by reporting the truth -- becomes the target of character assassination, and the weapon of choice are the loyal, vapid media stars who will uncritically repeat whatever powerful officials say all while shielding them from accountability through the use of anonymity.

Here, for instance, is what Norah O'Donnell said on MSNBC when reporting on the controversy with Tamron Hall:

O'DONNELL: I have been talking to a number of sources today who have said one, that any report coming from The Rolling Stone and this author Michael Hastings, who also "went after" another general, Stanley McCrystal, should be met with a healthy dose of skepticism. The title of this, Tamron, is "Another Runaway General":  remember that Michael Hastings already brought down another General, Stanley McCrystal. . . . I can tell you that there are a number of people in the military and the Defense Department who are not happy with The Rolling Stone because of what happened earlier with General Stanley McCrystal.

HALL: They can't be happy with it, but if it's what happened, the person is reporting it and it's factual, then that's what they have to deal with. You're not always happy with the truth.

O'DONNELL: That's true, but remember that they, they still question a lot of the previous article even though that brought down General Stanley McCrystal.

Who is it who says that "any report coming from The Rolling Stone and this author Michael Hastings . . . should be met with a healthy dose of skepticism," and what's the basis for that accusation?  Who knows?  O'Donnell just mindlessly passes on the smear, protecting the identity of the accusers while failing to identify a single specific reason why Hastings' journalism should be called into question.  She's simply acting as dutiful, protective spokesperson-stenographer for military leaders (O'Donnell also emphasized:  "this general in question, General Michael Caldwell, he is the head of training the Afghan security forces.  This is the linchpin, Tamron!  The linchpin of the war . . . This is how we get out . . . and make sure Afghan security forces are trained" -- as though Caldwell is such an Important General that Hastings should be ashamed of himself for reporting negatively on him, just as Logan suggested about Gen. McChrystal).

Meanwhile, The Wall Street Journal's Pentagon reporter Julian Barnes has now written two separate articles which do virtually nothing other than mindlessly amplify the military's attacks on Lt. Col. Holmes and Hastings' story based exclusively on military officials to whom he grants anonymity.  He thus notes that "privately, military officers cast doubt on the accusation"; that what Holmes complained about "is a routine part of military staff work, officials said"; that -- contrary to his claims to Rolling Stone -- Holmes "was not trained in the military specialty [of psy-ops], Defense Department officials said"; that "officers speaking privately rallied to the defense of Gen. Caldwell"; and that "a military officer who served with Lt. Col. Holmes and under Gen. Caldwell said the accusation is baseless."

In other words, military officials want to impugn Holmes and Hastings, but are afraid to attach their names to their claims and thus be accountable for them -- exactly the way these officials seek to influence the Afghanistan war debate with covert propaganda, all without any accountability.  So they instruct their media servants to disseminate their message anonymously, uncritically, and without a shred of accountability, and "journalists" like O'Donnell and Barnes then snap into line and comply.  As a result, the focus of the story has been quickly shifted away from Holmes' allegations of illegal military propaganda to whether Hastings is a bad journalist and whether Holmes has integrity:  all accomplished without any of these military officials having to speak publicly or even to offer any specifics.  As Hastings told me today:

The key question -- which they are trying to avoid -- is whether it's legal to use an information operations cell-- trained to conduct psychological operations, among other things -- to influence and manipulate U.S. senators. Two lawyers told Holmes it was illegal, and other experts I spoke to said the same thing. But a few media outlets have quickly turned their focus on Holmes in an obvious attempt to discredit him. Now, General Caldwell and his people claim that what the general and his staff were doing was "innocent." I don't doubt Gen. Caldwell and his friends actually believe that -- and that is what's truly disturbing.

That's what our establishment media outlets largely are for:  to disseminate and amplify the messages of our most powerful political, military and financial factions without any accountability.  

Indeed, this is exactly the same thing that happened when Hastings published his McChrystal story.  Several of the largest media outlets granted anonymity to military leaders to attack Hastings and impugn his character:

The Washington Post and ABC News explained Monday why both news organizations relied on anonymous sources for stories claiming that Rolling Stone may have violated source agreements in reporting its explosive profile of Gen. Stanley McChrystal.

"The sources would only allow us to use the material on condition of anonymity," Post National Security editor Cameron Barr told Yahoo! News. . . .Yahoo! News called attention to the Post's initial story shortly after it went online Friday, noting that reporter Karen DeYoung relied on an unnamed "senior military official" to make allegations against Rolling Stone reporter Michael Hastings' methods for sourcing. The official did not provide evidence to back up his or her viewpoint, such as specific quotes in the Rolling Stone article that were supposedly off the record, or the point at which an off-the-record agreement was hashed out.

Still, the Post reported that some anonymous officials believe Hastings "betrayed" McChrystal. . . .Shortly after the Post's story ran online, ABC News' Luis Martinez published a blog post raising similar questions about Rolling Stone's sourcing, and similarly relied on information from a "senior military official."

Granting anonymity to powerful political and military officials to attack journalists, watchdogs and whistleblowers is about the lowest and most journalistically reckless act a reporter and their editors can undertake -- recall this recent anonymous attack on departing TARP watchdog Neil Barofsky by a Treasury official and enabled by The Washington Post -- as it turns these media outlets into nothing more than protectors of those officials and mindless amplifiers of their attacks, which, thanks to the anonymity, can never be engaged.  But that's what they want to be; it's what they are; and that's why these officials tell them they will comment only under the cover of anonymity:  because they know it will be immediately granted the minute it's demanded regardless of whether there is any journalistic justification for it.

Anonymity does have a valid purpose in journalism:  its legitimate purpose is to protect the vulnerable and powerless when they expose wrongdoing by those who wield power.  But most establishment journalists have completely reversed that, so that anonymity is used to protect those with the most power:  to enable them to make all sorts of public claims and launch all kinds of attacks on critics without being accountable.  When anonymity is used for those purposes, it is inherently and incomparably corrupt (that, of course, is the dynamic that led to public acceptance of patently false claims justifying the Iraq War).  But this perversion of anonymity from what it was supposed to be (a means of holding the powerful accountable) into a power-shielding weapon is simply a microcosm of the broader reversal by establishment journalists of the old dictate to "afflict the powerful and comfort the powerless."  Most establishment journalists -- by definition -- do exactly the opposite, and their eagerness to indiscriminately grant anonymity to the nation's most powerful officials is simply one manifestation of that power-serving mindset.

On Twitter, Hastings criticized Barnes for granting anonymity to military critics of his article and of Lt. Col. Holmes.  So revealingly, Barnes responded by pointing to what he believes is Hastings' hypocrisy:  "[Hastings] criticizes me for quoting unnamed officials defending Caldwell. But his McChrystal profile is full of anonymous quotes," Barnes wrote.  Like most of his colleagues, Barnes is completely unable to distinguish between using anonymity (a) to protect the powerless when they expose wrongdoing by superiors (as Hastings did in his McChrystal piece) and (b) to shield the powerful from scrutiny and accountability (as Barnes did in his two articles on the psy-ops program): a distinction Hastings quickly pointed out in response.   That's because reporters like Barnes have no conception at all that what they do is about holding those in power accountable, so that distinction would never even occur to them.   To them, all anonymity is justifiable -- merely upon request -- particularly when it's used to shield their revered official-sources from scrutiny.

It's not difficult to understand the widespread media hostility toward Hastings and the willingness -- the eagerness -- to trash his stories and sources using power-protecting anonymity.   In an interview he gave after his McChrystal story last year, Hastings was asked about the attacks on him by fellow journalists and the risk that he would lose "access" as a result of what he published -- a common refrain from journalists criticizing his reporting -- and this was his response:

Look, I went into journalism to do journalism, not advertising. My views are critical but that shouldn't be mistaken for hostile - I'm just not a stenographer. There is a body of work that shows how I view these issues but that was hard-earned through experience, not something I learned going to a cocktail party on fucking K Street. That's what reporters are supposed to do, report the story.

In other words, he actually sees his role as being adversarial to those in power, to disclose rather than conceal the truth, and to check the conduct of government officials -- the exact opposite of how most of his colleagues perceive themselves and their role.  While Hastings seeks to expose the secret wrongdoing of the powerful, journalists like John Burns, Norah O'Donnell, and Julian Barnes seek to protect it, and thus scorn Hastings and offer themselves up as instruments for powerful officials to anonymously disseminate claims without scrutiny.  Hastings and especially Lt. Col. Holmes courageously put their names on their statements; but the powerful military officials who apparently broke the law are able to smear them without any need to identify themselves, thanks to their reporter-servants who serve as government spokespeople masquerading as journalists.

* * * * * 

Speaking of journalistic obeisance to political power:  The New York Times Public Editor Arthur Brisbane -- who has quickly proven himself to be the most pliant, vapid and useless person to occupy that position -- today addresses the topic I wrote about late last week.  Brisbane defends the compliance by the NYT (and several other American media outlets) with the U.S. Government's request that they conceal from their readers the fact that Raymond Davis -- the American at the center of the conflict between Pakistan and the U.S. whom President Obama deceitfully hailed as "our diplomat in Pakistan" -- actually works for the CIA and, before that, for Blackwater.  As I documented, what made this act so appalling was that the paper did not merely conceal information, but affirmatively provided "reporting" that it knew to be misleading, if not outright false.  Brisbane notes that numerous readers objected to the NYT's concealment, calling the Paper of Record "a willing pawn of the government's propaganda ministry" and accusing it of being "obviously and by its own admission, in the business of concealment."

Brisbane, of course, defends his employer, and includes one of the best sentences ever to appear in that newspaper:    

The constraint [concealing Davis' actual employment] plays havoc with coverage, obviously. For nearly two weeks, The Times tried to report on the Davis affair while sealing off the C.I.A. connection. In practice, this meant its stories contained material that, in the cold light of retrospect, seems very misleading. . . . "Obviously, there are some things that were withheld from some of our stories," said Dean Baquet, the Washington bureau chief. "I would argue that, given the restriction, we tried our best not to be misleading."

That's what the American media has been reduced to:  yes, we published government propaganda that we knew to be factually false, because we concealed the information we had that proved it to be false at the request of the Government.  But "we tried our best not to be misleading," so what's the problem?  And, of course, their Public Editor defends their editorial decisions even while noting that the reporting on the Davis matter "seems very misleading."   One might think that acknowledging that a newspaper's news stories were "very misleading" would preclude a defense of the editorial judgments that produced them -- on the not-particularly-radical ground that it's never justifiable for a newspaper to knowingly mislead readers about important political events -- but, as Brisbane's column demonstrates, one would be quite wrong in that assumption.  Many establishment journalists believe that anything is justifiable in service of the government's aims, including overtly misleading their own readers.

Finally, on Friday, I discussed the anonymous attacks on Hastings and Lt. Col. Holmes with MSNBC's Cenk Uygur, and also how it relates to the broader attacks on whistleblowers and WikiLeaks -- as a coordinated, media-aided means of silencing critics of government and military power:

The DOJ's creeping war on whistle-blowers

Last April, the DOJ served a subpoena on New York Times reporter James Risen, demanding to know his source for a story he published in his 2006 book regarding a "reckless" and horribly botched CIA effort to infiltrate Iran's nuclear program.   That subpoena had originally been served but was then abandoned by the Bush DOJ, but its revitalization by the Obama administration was but one of many steps taken to dramatically expand the war on whistleblowers being waged by the current President, who ran on a platform of "protecting whistleblowers":

Those pretty words have given way to the most aggressive crusade to expose, punish and silence "courageous and patriotic" whistleblowers by any President in decades.  As the Federation of American Scientists' Steven Aftergood put it, "They're going after this at every opportunity and with unmatched vigor."  And last May, The New York Times described how "the Obama administration is proving more aggressive than the Bush administration in seeking to punish unauthorized leaks."  This war has entailed multiple indictments and prosecutions of Bush-era leaks which exposed various degrees of corruption, ineptitude and illegality.  And, of course, the Obama administration's preoccupation with destroying WikiLeaks -- which has led it to boast of efforts to prosecute the group for publishing classified information (which other media outlets do every day), target WikiLeaks supporters with invasive harassment, and even subpoena the Twitter accounts of several WikiLeaks associates, including a sitting member of the Icelandic Parliament -- has been well-documented.

But it's the DOJ's increasing willingness to target journalists as part of this crusade that has now escalated its seriousness.  Last month, the DOJ claimed it had found and arrested Risen's source:  Jeffrey Sterling, a former CIA agent who left the agency in 2002 (he now works in the health insurance industry).  As part of Sterling's criminal proceedings, it was revealed yesterday that federal investigators had secretly obtained Risen's bank records, information about his phone and travel activities, and even credit reports to unearth his source:

Federal investigators trying to find out who leaked information about a CIA attempt to disrupt Iran's nuclear program obtained a New York Times reporter's three private credit reports, examined his personal bank records and obtained information about his phone calls and travel, according to a new court filing.

The scope and intrusiveness of the government's efforts to uncover reporter James Risen's sources surfaced Thursday in the criminal case of James Sterling, a former CIA officer facing federal criminal charges for allegedly disclosing classified information. . . . The revelation alarmed First Amendment advocates, particularly in light of Justice Department rules requiring the attorney general to sign off on subpoenas directed to members of the media and on requests for their phone records.

First Amendment advocates said the Justice Department's use of business records to find out about Risen's sources was troubling. Those records, they argue, could potentially expose a wide array of Risen's sources and confidential contacts -- information that might fall beyond the initial investigation that led to Sterling's indictment . . .

"To me, in many ways, it's worse than a direct subpoena," said Jane Kirtley, a University of Minnesota law professor and former director of the Reporters Committee for Freedom of the Press. "Third-party subpoenas are really, really invidious. . . . Even if it is targeted, even if they're trying to just look at the relevant stuff, they're inevitably going to get material that exposes other things."

Kirtley also said journalists often aren't notified when the government asks telecom companies, banks or other service providers for their records.

Covertly obtaining and then digging through the phone, banking, and travel records of journalists is about as extreme a step as can be taken in trying to detect and punish whistleblowers.  By itself, the chilling effect on a free press is substantial and obvious -- what whistleblowers would speak to reporters if  they know their most private records can be so easily invaded by the Government? -- and the invasion of privacy which a journalist has to endure for doing his job is immense. 

But what makes this conduct particularly indefensible is how the Obama DOJ is venturing back into the past to dredge up these forgotten episodes.  Sterling hasn't worked for the Government or had a security clearance in more than 8 years.  The alleged leak took place in Bush's first term.  Disclosure resulted in substantial embarrassment for the U.S. but -- given the utter failure of the operation -- no identifiable national security harm. 

For a President who insists that we must "Look Forward, Not Backward" -- when it comes to investigating war crimes by high-level Bush officials -- this anti-whistleblower assault reflects not only an obsession on preserving and bolstering the National Security State's secrecy regime, but also an intense fixation on the past.  And increasingly extremist weapons -- now including trolling through reporters' banking and phone records -- are being wielded to achieve it.  As Thomas Jefferson warned long ago:  "Our first object should therefore be, to leave open to him all the avenues of truth. The most effectual hitherto found, is freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions."

* * * * *

I'll be returning home tonight and normal posting will thus resume over the weekend or on Monday.  Speaking of obsessions with destroying whistle-blowing, I was on The Colbert Report last night talking about the HBGary/Hunton & Williams scheme to target WikiLeaks supporters.  The first segment is Colbert's incisive (and quite amusing) monologue on the story, and the second is the interview with me which immediately followed it:

The Colbert Report

Mon - Thurs 11:30pm / 10:30c



Corporate Hacker Tries to Take Down WikiLeaks




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The Colbert Report

Mon - Thurs 11:30pm / 10:30c



Corporate Hacker Tries to Take Down WikiLeaks - Glenn Greenwald




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The DOJ's creeping war on whistleblowers

Last April, the DOJ served a subpoena on New York Times reporter James Risen, demanding to know his source for a story he published in his 2006 book regarding a "reckless" and horribly botched CIA effort to infiltrate Iran's nuclear program.   That subpoena had originally been served but was then abandoned by the Bush DOJ, but its revitalization by the Obama administration was but one of many steps taken to dramatically expand the war on whistleblowers being waged by the current President, who ran on a platform of "protecting whistleblowers":

Those pretty words have given way to the most aggressive crusade to expose, punish and silence "courageous and patriotic" whistleblowers by any President in decades.  As the Federation of American Scientists' Steven Aftergood put it, "They're going after this at every opportunity and with unmatched vigor."  And last May, The New York Times described how "the Obama administration is proving more aggressive than the Bush administration in seeking to punish unauthorized leaks."  This war has entailed multiple indictments and prosecutions of Bush-era leaks which exposed various degrees of corruption, ineptitude and illegality.  And, of course, the Obama administration's preoccupation with destroying WikiLeaks -- which has led it to boast of efforts to prosecute the group for publishing classified information (which other media outlets do every day), target WikiLeaks supporters with invasive harassment, and even subpoena the Twitter accounts of several WikiLeaks associates, including a sitting member of the Icelandic Parliament -- has been well-documented.

But it's the DOJ's increasing willingness to target journalists as part of this crusade that has now escalated its seriousness.  Last month, the DOJ claimed it had found and arrested Risen's source:  Jeffrey Sterling, a former CIA agent who left the agency in 2002 (he now works in the health insurance industry).  As part of Sterling's criminal proceedings, it was revealed yesterday that federal investigators had secretly obtained Risen's bank records, information about his phone and travel activities, and even credit reports to unearth his source:

Federal investigators trying to find out who leaked information about a CIA attempt to disrupt Iran's nuclear program obtained a New York Times reporter's three private credit reports, examined his personal bank records and obtained information about his phone calls and travel, according to a new court filing.

The scope and intrusiveness of the government's efforts to uncover reporter James Risen's sources surfaced Thursday in the criminal case of James Sterling, a former CIA officer facing federal criminal charges for allegedly disclosing classified information. . . . The revelation alarmed First Amendment advocates, particularly in light of Justice Department rules requiring the attorney general to sign off on subpoenas directed to members of the media and on requests for their phone records.

First Amendment advocates said the Justice Department's use of business records to find out about Risen's sources was troubling. Those records, they argue, could potentially expose a wide array of Risen's sources and confidential contacts -- information that might fall beyond the initial investigation that led to Sterling's indictment . . .

"To me, in many ways, it's worse than a direct subpoena," said Jane Kirtley, a University of Minnesota law professor and former director of the Reporters Committee for Freedom of the Press. "Third-party subpoenas are really, really invidious. . . . Even if it is targeted, even if they're trying to just look at the relevant stuff, they're inevitably going to get material that exposes other things."

Kirtley also said journalists often aren't notified when the government asks telecom companies, banks or other service providers for their records.

Covertly obtaining and then digging through the phone, banking, and travel records of journalists is about as extreme a step as can be taken in trying to detect and punish whistleblowers.  By itself, the chilling effect on a free press is substantial and obvious -- what whistleblowers would speak to reporters if  they know their most private records can be so easily invaded by the Government? -- and the invasion of privacy which a journalist has to endure for doing his job is immense. 

But what makes this conduct particularly indefensible is how the Obama DOJ is venturing back into the past to dredge up these forgotten episodes.  Sterling hasn't worked for the Government or had a security clearance in more than 8 years.  The alleged leak took place in Bush's first term.  Disclosure resulted in substantial embarrassment for the U.S. but -- given the utter failure of the operation -- no identifiable national security harm. 

For a President who insists that we must "Look Forward, Not Backward" -- when it comes to investigating war crimes by high-level Bush officials -- this anti-whistleblower assault reflects not only an obsession on preserving and bolstering the National Security State's secrecy regime, but also an intense fixation on the past.  And increasingly extremist weapons -- now including trolling through reporters' banking and phone records -- are being wielded to achieve it.  As Thomas Jefferson warned long ago:  "Our first object should therefore be, to leave open to him all the avenues of truth. The most effectual hitherto found, is freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions."

* * * * *

I'll be returning home tonight and normal posting will thus resume over the weekend or on Monday.  Speaking of obsessions with destroying whistle-blowing, I was on The Colbert Report last night talking about the HBGary/Hunton & Williams scheme to target WikiLeaks supporters.  The first segment is Colbert's incisive (and quite amusing) monologue on the story, and the second is the interview with me which immediately followed it:

The Colbert Report

Mon - Thurs 11:30pm / 10:30c



Corporate Hacker Tries to Take Down WikiLeaks




www.colbertnation.com













Colbert Report Full Episodes


Political Humor & Satire Blog


Video Archive












The Colbert Report

Mon - Thurs 11:30pm / 10:30c



Corporate Hacker Tries to Take Down WikiLeaks - Glenn Greenwald




www.colbertnation.com













Colbert Report Full Episodes


Political Humor & Satire Blog


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Partisan bliss

(updated below)

I was on Democracy Now this morning discussing the extradition ruling in the Julian Assange case, the HBGary story, the President's reversal on defending the constitutionality of DOMA and several other issues, and was on Lawrence O'Donnell's program last night discussing the DOMA issue.  The videos of both segments are posted below, but I want to make one point about the debate over DOMA.

Something very similar happened in 2009 when President Obama reversed his decision about whether to release photographs of detainee abuse which two federal courts had ruled must be disclosed pursuant to the Freedom of Information Act.  Originally, Obama announced that he would release those photos, and when he was attacked by the Kristol/Liz-Cheney-led Right for harming national security, virtually all Democrats defended him by citing the virtues of transparency.

Yet a mere two weeks later, Obama reversed himself and announced that he would conceal the photos on the ground that their release would harm national security (invoking precisely the Kristol/Cheney argument), and most Democrats . . . then defended that position, even though it was exactly the opposite of the position they took a mere two weeks earlier (a similar incident occurred when Democrats vocally defended Eric Holder's decision to try Khalid Sheikh Mohammed in a civilian court on the ground that such trials are compelled by "the rule of law," yet now refrain from criticizing the President for "suspending" that decision and refusing to give Mohammed (and many other detainees) a trial, even though, logically, those progressives would have to see denial of such trials as a violation of the very same "rule of law" they cited to justify Mohammed's civilian trial).

For two years now, the Obama DOJ has been defending the constitutionality of DOMA in federal courts around the country.  In response to objections from gay groups, Obama officials -- and their supporters -- insisted that the President had no choice, that it's the duty of the Justice Department to defend the constitutionality of all laws enacted by Congress, and that it's dangerous for the President to pick and choose which laws to defend or not defend.   That's actually a reasonable position; there is a genuine danger in having the President selectively defend Congressional statutes (although many past administrations have refused to defend particular laws where they believed they could not in good faith do so).  Although I believe it is appropriate in rare cases for the DOJ to refuse to defend a statute or even affirmatively argue for its unconstitutionality (provided it continues to enforce the law until it's repealed or struck down), there is a valid concern on the part of those who argue -- as Obama supporters did for the last two years -- that it's never appropriate for the DOJ to refrain from defending a statute or, at least, that it would be wrong to do so in the DOMA case.

But for those loyal Obama supporters who spent two years defending the administration's DOMA position on this ground:  if they have even a minimal amount of intellectual honestly, shouldn't they now criticize the President's reversal, this new refusal to defend DOMA?   If they really believed what they were saying for the last two years -- that a President is required to defend the constitutionality of all statutes -- then shouldn't they be vocally condemning Obama now for doing exactly that which they insisted he has no power to do?  Of course -- as the torture photo and civilian trial controversies also demonstrated -- one of the joys of partisan fealty and devotion to a leader is that one need not have any actual beliefs or positions:  you get to say whatever you need to say at any given moment to justify the leader's conduct, even if it completely contradicts what you said months or weeks earlier in service of the same objective.  Justifying the leader's behavior is the sole prism through which the entire political world is viewed; one is blissfully liberated from the need to formulate any actual views or principles.

* * * * *

For a sense of the grave injustice and misery which DOMA produces for gay citizens -- and the reason I consider Obama's reversal a genuine cause for praise -- see this email which I received today; I receive multiple emails exactly like this every time I talk or write about this issue.

Democracy Now:

 

The Last Word:

 

UPDATE:  I think Andrew Sullivan and others are under-stating the significance of Obama's DOMA decision.  It's true that courts (including the Supreme Court) are still free to find the statute constitutional; it's true that DOMA will still be enforced until a final court ruling; and it's also true that DOMA will still have plenty of competent lawyers vigorously defending its constitutionality (including from Congress).  But the question in these constitutional challenges is whether the Government has a legitimate (or greater) interest in treating groups of citizens differently, and when the U.S. Government is standing up in court and telling judges that there is no such interest, that makes a substantial difference.  That's why, as Jack Balkin documents, many of the most momentous shifts in civil rights law and the law in other areas comes after (and due to) changes in the Government's position; it's not binding on courts, of course, but it's quite influential.

Moreover, the significance extends beyond DOMA.  Perhaps the most consequential aspect of the DOJ's announcement is that it now formally adopts the position that gay people are a "suspect class" for Equal Protection analysis, and laws targeting them thus merit heightened constitutional scrutiny.  That the DOJ now formally adopts what until very recently was a fairly radical legal position will almost certainly change the face of constitutional analysis -- for the better -- as it concerns equal rights for gay Americans.

Torture prosecutions and aid to Israel

(updated below)

Yesterday and today were travel days for me, making posting difficult. I'm in New York this week to do several television programs, and will post them as they are confirmed (in particular, tomorrow night, I'll be on The Colbert Report to talk about the HBGary/Hunton & Williams story).

In the meantime, I recorded a Bloggingheads session on Monday with former Bush speechwriter David Frum over several issues about which we've disagreed: (1) Frum argued -- first on his blog and then on CNN.com -- that no other countries have the right to prosecute Bush officials for the torture regime they created; that's a position with which I obviously disagree; and (2) Frum recently (and reasonably enough) observed that Israel will likely face increased defense costs as a result of the upheaval in Egypt, but then, from that premise, argued that U.S. aid to Israel should therefore increase (as though the principal burden for Israel's security lies not with Israeli taxpayers but with American taxpayers); that, too, is a position with which I strongly disagree. Our discussion of both issues can be seen on the recorder below; it was a lively and contentious exchange and one that I think is worth watching:

 

UPDATE:  I'll be on Lawrence O'Donnell's MSNBC program tonight at roughly 8:20 p.m. discussing a rare event:  a purely commendable decision by the Obama administration.  The Attorney General announced today that the President ordered the DOJ to cease defending the constitutionality of the Defense of Marriage Act, a law which (as the DOJ will now acknowledge) is patently unconstitutional and gravely and unjustly harms tens of thousands of gay Americans.  

The NYT's journalistic obedience

Earlier today, I wrote in detail about new developments in the case of Raymond Davis, the former Special Forces soldier who shot and killed two Pakistanis on January 27, sparking a diplomatic conflict between the U.S. (which is demanding that he be released on the ground of "diplomatic immunity") and Pakistan (whose population is demanding justice and insisting that he was no "diplomat").  But I want to flag this new story separately because it's really quite amazing and revealing.

Yesterday, as I noted earlier, The Guardian reported that Davis -- despite Obama's description of him as "our diplomat in Pakistan" -- actually works for the CIA, and further noted that Pakistani officials believe he worked with Blackwater.  When reporting that, The Guardian noted that many American media outlets had learned of this fact but deliberately concealed it -- because the U.S. Government told them to:  "A number of US media outlets learned about Davis's CIA role but have kept it under wraps at the request of the Obama administration." 

Now it turns out that The New York Times -- by its own shameless admission -- was one of those self-censoring, obedient media outlets.  Now that The Guardian published its story last night, the NYT just now published a lengthy article detailing Davis' work -- headlined:  "American Held in Pakistan Shootings Worked With the C.I.A." -- and provides a few more details:

The American arrested in Pakistan after shooting two men at a crowded traffic stop was part of a covert, C.I.A.-led team of operatives conducting surveillance on militant groups deep inside the country, according to American government officials. . . . Mr. Davis has worked for years as a C.I.A. contractor, including time at Blackwater Worldwide, the controversial private security firm (now called Xe) that Pakistanis have long viewed as symbolizing a culture of American gun slinging overseas.

But what's most significant is the paper's explanation for why they're sharing this information with their readers only now:

The New York Times had agreed to temporarily withhold information about Mr. Davis's ties to the agency at the request of the Obama administration, which argued that disclosure of his specific job would put his life at risk. Several foreign news organizations have disclosed some aspects of Mr. Davis's work with the C.I.A.. On Monday, American officials lifted their request to withhold publication, though George Little, a C.I.A. spokesman, declined any further comment.

In other words, the NYT knew about Davis' work for the CIA (and Blackwater) but concealed it because the U.S. Government told it to.  Now that The Guardian and other foreign papers reported it, the U.S. Government gave permission to the NYT to report this, so now that they have government license, they do so -- only after it's already been reported by other newspapers which don't take orders from the U.S. Government.

It's one thing for a newspaper to withhold information because they believe its disclosure would endanger lives.  But here, the U.S. Government has spent weeks making public statements that were misleading in the extreme -- Obama's calling Davis "our diplomat in Pakistan" -- while the NYT deliberately concealed facts undermining those government claims because government officials told them to do so.  That's called being an active enabler of government propaganda.  While working for the CIA doesn't preclude holding "diplomatic immunity," it's certainly relevant to the dispute between the two countries and the picture being painted by Obama officials.  Moreover, since there is no declared war in Pakistan, this incident -- as the NYT puts it today -- "inadvertently pulled back the curtain on a web of covert American operations inside Pakistan, part of a secret war run by the C.I.A. "  That alone makes Davis' work not just newsworthy, but crucial.

Worse still, the NYT has repeatedly disseminated U.S. Government claims -- and even offered its own misleading descriptions --without bothering to include these highly relevant facts.  See, for instance, its February 12 report ("The State Department has repeatedly said that he is protected by diplomatic immunity under the Vienna Convention and must be released immediately"); this February 8 article (referring to "the mystery about what Mr. Davis was doing with this inventory of gadgets"; noting "the Pakistani press, dwelling on the items in Mr. Davis's possession and his various identity cards, has been filled with speculation about his specific duties, which American officials would not discuss"; and claiming:  "Mr. Davis's jobs have been loosely defined by American officials as 'security' or 'technical,' though his duties were known only to his immediate superiors"); and this February 15 report (passing on the demands of Obama and Sen. John Kerry for Davis' release as a "diplomat" without mentioning his CIA work).  They're inserting into their stories misleading government claims, and condescendingly summarizing Pakistani "speculation" about Davis' work, all while knowing the truth but not reporting it.

Following the dictates of the U.S. Government for what they can and cannot publish is, of course, anything but new for the New York Times.  In his lengthy recent article on WikiLeaks and Julian Assange, NYT Executive Editor Bill Keller tried to show how independent his newspaper is by boasting that they published their story of the Bush NSA program even though he has "vivid memories of sitting in the Oval Office as President George W. Bush tried to persuade [him] and the paper's publisher to withhold the eavesdropping story"; Keller neglected to mention that the paper learned about the illegal program in mid-2004, but followed Bush's orders to conceal it from the public for over a year -- until after Bush was safely re-elected. 

And recently in a BBC interview, Keller boasted that -- unlike WikiLeaks -- the Paper of Record had earned the praise of the U.S. Government for withholding materials which the Obama administration wanted withheld, causing Keller's fellow guest -- former British Ambassador to the U.N. Carne Ross -- to exclaim: "It's extraordinary that the New York Times is clearing what it says about this with the U.S. Government."  The BBC host could also barely hide his shock and contempt at Keller's proud admission:  

HOST (incredulously): Just to be clear, Bill Keller, are you saying that you sort of go to the Government in advance and say: "What about this, that and the other, is it all right to do this and all right to do that," and you get clearance, then?

Obviously, that's exactly what The New York Times does.  Allowing the U.S. Government to run around affirmatively depicting Davis as some sort of Holbrooke-like "diplomat" -- all while the paper uncritically prints those claims and yet conceals highly relevant information about Davis because the Obama administration told it to -- would be humiliating for any outlet devoted to adversarial journalism to have to admit.  But it will have no such effect on The New York Times.  With some noble exceptions, loyally serving government dictates is, like so many American establishment media outlets, what they do; it's their function:  hence the name "establishment media."

This week in winning hearts and minds

(updated below)

In terms of understanding how the U.S. is perceived in the Muslim world -- and why some people might become sufficiently enraged to give up their own lives to attack us -- consider the following:

(1) On January 27, Raymond Davis, a former U.S. Special Forces soldier, shot and killed two Pakistani citizens in that nation's second-largest city, Lahore, using a semi-automatic Glock pistol.  Davis claims he acted in self-defense when they attacked his car to rob him -- both of the dead were armed and had lengthy records of petty crimes -- but each was shot five times, and one was killed after Davis was safely back in his car and the victim was fleeing.  After shooting the two dead, Davis calmly photographed their bodies and then called other Americans stationed in Pakistan (likely CIA officers) for assistance; one of the Americans' Land Rovers dispatched to help Davis struck and killed a Pakistani motorcyclist while speeding to the scene.  The Pakistani wife of one of Davis' victims then committed suicide by swallowing rat poison, saying on her deathbed that she had serious doubts that Davis would be held accountable.

For reasons easy to understand -- four dead Pakistanis at the hands of Americans, two of whom (at least) were completely innocent -- this episode has become a major scandal in that nation.  From the start, the U.S. Government has demanded Davis' release on the grounds of "diplomatic immunity."  But the very murky status of Davis and his work in Pakistan has clouded that claim.  The State Department first said he worked for the consulate, not the embassy, which would make him subject to weaker immunity rights than diplomats enjoy (State now says that its original claim was a "mistake" and that Davis worked for the embassy).  President Obama then publicly demanded the release of what he absurdly called "our diplomat in Pakistan"; when he was arrested, Davis "was carrying a 9mm gun and 75 bullets, bolt cutters, a GPS unit, an infrared light, telescope, a digital camera, an air ticket, two mobile phones and a blank cheque."  Late last week, a Pakistani court ordered a three-week investigation to determine if Davis merits diplomatic immunity, during which time he will remain in custody.  And now it turns out, according The Guardian last night, that "our diplomat" was actually working for the CIA:

The American who shot dead two men in Lahore, triggering a diplomatic crisis between Pakistan and the US, is a CIA agent who was on assignment at the time. . . . Based on interviews in the US and Pakistan, the Guardian can confirm that the 36-year-old former special forces soldier is employed by the CIA. "It's beyond a shadow of a doubt," said a senior Pakistani intelligence official. . . . He served in the US special forces for 10 years before leaving in 2003 to become a security contractor. A senior Pakistani official said he believed Davis had worked with Xe, the firm formerly known as Blackwater.

 A few caveats are in order here.  Though The Guardian uses unusually strong language for its claim ("the Guardian can confirm"), the reporting appears based mostly if not entirely on Pakistani sources and is entirely anonymous (though Davis' CIA connection has been speculated from the start and never denied by the U.S. Government).  Most countries, including the U.S., have on occasion been forced to release perpetrators of heinous crimes because they had "diplomatic" status (or were family members of diplomats):  including murder, rape and pedophilia, and it often (and understandably) engenders public rage.  The U.S. is hardly alone in spying under diplomatic cover.  And the general custom is that once a person enters a country with a diplomatic passport -- as Davis did here -- they are entitled to immunity regardless of their specific work.  In sum, both the factual and legal issues here are both unclear and complex (The Guardian today has an excellent article gathering all the known facts, while The Washington Post's "fact-checking" feature reviews the international legal issues and "withholds judgment" on who is right).

But several points are quite clear.  There's the gross hypocrisy of the U.S. State Department invoking lofty "rule-of-law" and diplomacy principles under the 1961 Vienna Convention on Diplomatic Relations -- the very same State Department that just got caught systematically violating that convention when WikiLeaks cables revealed that U.S. "diplomats" were ordered to spy on U.N. officials and officials in other countries.  Then there's the delusional notion -- heard mostly from progressives with romanticized images of the State Department -- that WikiLeaks' release of diplomatic cables was terrible because it's wrong to undermine "diplomacy" with leaks, since the State Department (unlike the Big, Bad Pentagon) is devoted to Good, Humane causes of facilitating peace.  As this episode illustrates, there's no separation among the various arms of the U.S. Government; they all are devoted to the same end and simply use different means to accomplish it (when the U.S. Government is devoted to war, "diplomatic" functions are used to bolster the war, as Colin Powell can tell you).

But what this highlights most of all is the extraordinary cost of occupying, interfering with and waging endless war in multiple countries around the world.  Back in November, 2009, Jeremy Scahill reported on the U.S.'s "Secret War in Pakistan" using Special Forces and Blackwater operatives, and was promptly attacked as a liar by the U.S. Government -- until WikiLeaks cables confirmed the accuracy of what he said.  We relentlessly hear what a serious threat is posed to us by Terrorism, and gravely lament that Pakistan is such a hotbed for that activity and those who support it.  Yet -- as the people in that country hear every day -- we're occupying, bombing, droning, and otherwise trying to control what happens there.  As The Guardian put it with great understatement: 

Many Pakistanis are outraged at the idea of an armed American rampaging through their second-largest city. Analysts have warned of Egyptian-style protests if Davis is released.

Those crazy, primitive Pakistanis and their inscrutable Muslim customs.  Scandals over diplomatic immunity are usually one-time, aberrational occurrences:  a son of a diplomat gets away with a DUI or a low-level embassy official receives immunity for sex crimes.  But what happened in Lahore is part of an ongoing, continuous assault by American forces in that region.  They (but not we) hear routinely about the killing of their innocent civilians by Americans in their country.  Why don't we hear much about such things?  The Guardian article provides some insight:

A number of US media outlets learned about Davis's CIA role but have kept it under wraps at the request of the Obama administration.

That's our intrepid, independent Watchdog press.  The cost of this conduct is so predictable -- intense anti-American sentiment and the threats of Terrorism it produces -- that a rational person would have to inquire whether that outcome is not a bug but a feature of our policy in that region.

 

(2) In exciting news, the Obama administration used America's U.N. veto for its first time.  It's not exactly difficult to guess what the topic was:  "blocking a Palestinian-backed draft resolution that denounced Israel's settlement policy as an illegal obstacle to peace efforts in the Middle East."  In vetoing the resolution, the U.S. completely isolated itself:  all 14 other members of the Security Council voted for the resolution, including U.S. allies Britain and France.  The linked Washington Post article was atypically candid about what motivated the Obama administration's veto:

Although U.S. officials have consistently criticized the settlement policy, a vote in favor of the resolution would have angered Israel and its U.S. supporters, including Republican lawmakers, who had urged the Obama administration to stand with Israel at all costs.

"Stand with Israel at all costs" is exactly what "its U.S. supporters" demand, and as usual, it's exactly what the U.S. Government just did.  And the "cost" to the U.S. is extremely high.  It's certainly true that little would have changed had this passed: the Israelis aren't exactly shy about violating U.N. resolutions.  But by standing alone against the rest of the world in stopping it, the U.S. has -- once again -- incurred grave damage for the sake of Israel.  As The Post put it, the veto "isolated the United States on a crucial Middle East matter at a time of political upheaval in the region."  There is zero strategic benefit to the U.S. in blocking this resolution (unless one assumes that the U.S. desires settlement growth to continue).  But at one of the most critical times in that region in more than a century, the U.S. openly subverts the world consensus to protect the Israelis from censure over blatantly illegal acts -- all to avoid angering "its supporters" in the U.S.

Remember, though:  talking about the power of the Israel Lobby and the way it causes the U.S. to sacrifice its own interests for this foreign country is strictly prohibited and a sure sign of deep malice.  And the only possible reason why Muslims in that region might harbor hostility toward the U.S. is because of primitive, crazed religious fanaticism and a contempt for Our Freedoms.

 

(3) One of the most notable aspects of the remarkable -- and inspiring -- revolutionary events in the Middle East is how most (though not all) of the villains at the heart of the depicted drama -- the Evil, Dictatorial Regimes -- are and have long been such close and cherished allies of the United States.  That fact isn't much acknowledged in American media narratives, but it's certainly been long and well-known in that part of the world.  And the true faces of our allies are now being exposed in a way that not even we can look away from.  Imagine if Americans lived under a brutal, repressive, dictatorial regime for decades, and one foreign nation devoted huge amounts of its resources to empowering and propping up that regime for years.  Might that generate some intense hostility toward that foreign power?

 

(4) Yesterday, tribal elders in Afghanistan claimed that NATO air raids killed 64 civilians, though NATO officials deny that.  In the past, such conflicts have usually been resolved in favor of the local Afghans claiming civilian deaths.  I don't know what happened in this particular incident, but news reports of civilian deaths caused by the U.S. in that country are rather constant over there, though rare over here.  One might consider the cumulative effect of that.

* * * * *

When New York Times Executive Editor Bill Keller recently published a long article describing his feelings about Julian Assange and the disclosures by WikiLeaks, he explained that while "it is [the paper's] aim to be impartial in [its] presentation of the news," their "attitude toward these issues is far from indifferent."  Noting that most NYT executives and reporters live in New York, he assured the public that "the journalists at The Times have a large and personal stake in the country's security" and are thus "invested in the struggle against murderous extremism."  This is how Keller understands the War on Terror in which, he said, the NYT sides with the U.S.:

The virulent hatred espoused by terrorists, judging by their literature, is directed not just against our people and our buildings but also at our values and at our faith in the self-government of an informed electorate. If the freedom of the press makes some Americans uneasy, it is anathema to the ideologists of terror.

In other words, explained the newspaper of record's Executive Editor, They Hate Us For Our Freedoms.  These incidents from the past week make clear just how true that is.

 

UPDATE:  Due to a technical glitch, an article published by Salon over the weekend regarding Anonymous and the Westboro Baptist Church was inadvertently posted here.  I did not participate in the preparation or publication of that article; the mistake has now been corrected and the article removed from this space.

Anonymous warns Westboro Baptist Church to stop with the hate

Anonymous is at it again. The controversial hacker collective made headlines two weeks ago when it broke into the email accounts of computer security firm HBGary. The hackers released a number of documents, including some that revealed the firm was plotting to destroy Wikileaks, in part by targeting journalists such as Salon's Glenn Greenwald. 

Now Anonymous has a new target: the equally controversial Westboro Baptist Church. The church has drawn widespread ire for its vitriolic anti-gay messaging and protests at military funerals, behavior that Anonymous deemed unacceptable and loathsome in an open letter to the organization: 

ANONYMOUS cannot abide this behavior any longer. The time for us to be idle spectators in your inhumane treatment of fellow Man has reached its apex, and we shall now be moved to action. Thus, we give you a warning: Cease & desist your protest campaign in the year 2011, return to your homes in Kansas, & close your public Web sites. Should you ignore this warning, you will meet with the vicious retaliatory arm of ANONYMOUS: We will target your public Websites, and the propaganda & detestable doctrine that you promote will be eradicated; the damage incurred will be irreversible, and neither your institution nor your congregation will ever be able to fully recover. 

Read the full open letter on AnonNews.org

U.S. Justice v. the world

In March, 2002, American citizen Jose Padilla was arrested in Chicago and publicly accused by then-Attorney-General John Ashcroft of being "The Dirty Bomber."  Shortly thereafter, he was transferred to a military brig in South Carolina, where he was held for almost two years completely incommunicado (charges with no crime and denied all access to the outside world, including even a lawyer) and was brutally tortured, both physically and psychologically.  All of this -- including the torture -- was carried out pursuant to orders from President Bush, Secretary Rumsfeld and other high-ranking officials.  Just as the Supreme Court was about to hear Padilla's plea to be charged or released -- and thus finally decide if the President has the power to imprison American citizens on U.S. soil with no charges of any kind -- the Government indicted him in a federal court on charges far less serious than Ashcroft had touted years earlier, causing the Supreme Court to dismiss Padilla's arguments as "moot"; Padilla was then convicted and sentenced to 17 years in prison.

Padilla -- like so many other War on Terror detainees -- has spent years in American courts trying unsuccessfully to hold accountable the high-level government officials responsible for his abuse and lawless imprisonment (that which occurred for years prior to his indictment).  Not only has Padilla (and all other detainees) failed to obtain redress for what was done to them, but worse, they have been entirely denied even the right to have their cases heard in court.  That's because the U.S. Government has invented -- and federal courts have dutifully accepted -- a whole slew of legal doctrines which have only one purpose:  to insulate the country's most powerful political officials from legal accountability even when they commit the most egregious crimes:  such as imprisoning incommunicado and torturing an American citizen arrested and detained on U.S. soil.

Yesterday, in South Carolina, an Obama-appointed federal judge dismissed a lawsuit brought by Padilla against former Bush officials Donald Rumsfeld, John Ashcroft, Paul Wolfowitz and others.  That suit alleges that those officials knowingly violated Padilla's Constitutional rights by ordering his due-process-free detention and torture.  In dismissing Padilla's lawsuit, the court's opinion relied on the now-depressingly-familiar weapons used by our political class to immunize itself from judicial scrutiny:  national security would be undermined by allowing Padilla to sue; "government officials could be distracted from their vital duties to attend depositions or respond to other discovery requests"; "a trial on the merits would be an international spectacle with Padilla, a convicted terrorist, summoning America's present and former leaders to a federal courthouse to answer his charges"; the litigation would risk disclosure of vital state secrets; and "discovery procedures could be used by our enemies to obtain valuable intelligence."

In other words, our political officials are Too Important, and engaged in far Too Weighty Matters in Keeping Us Safe, to subject them to the annoyance of the rule of law.  It's much more important to allow them to Fight The Terrorists without restraints than to bother them with claims that they broke the law and violated the rights guaranteed by the U.S. Constitution.  That's the mentality that has resulted in full-scale immunity for both political and now private-sector elites in a whole slew of lawbreaking scandals -- from Obama's refusal to investigate Bush-era crimes or high-level Wall Street criminality to retroactive immunity for lawbreaking telecoms and legal protection for defrauding mortgage banks.  With very few exceptions -- yesterday's ruling, for instance, brushed aside a contrary decision from a Bush-43-appointed federal judge in California last year that refused to dismiss Padilla's lawsuit against John Yoo for having authorized his torture (that decision is on appeal) -- Executive Branch officials and the federal judiciary have conspired to ensure that the former are shielded from judicial scrutiny even for the most blatant and horrifying crimes.

There are legalistic questions involved in cases such as the one brought by Padilla -- i.e., whether courts should allow monetary damages to be sought against government officials for Constitutional violations in the absence of a Congressional statute (a "Bivens" claim) and whether such officials should enjoy "qualified immunity" for their illegal acts where the illegality is unclear (as Rumsfeld absurdly alleged the torture of Padilla was) -- but one key fact is not complex.  Not a single War on Terror detainee has been accorded any redress in American courts for the severe abuses to which they were subjected (including innocent people being detained for years, rendered and even tortured), and worse, no detainee has been allowed by courts even to have their claims heard.  After the U.S. Government implemented a worldwide regime of torture, lawless detention, and other abuses, the doors of the American justice system have been slammed shut in the face of any and all victims seeking to have their rights vindicated or even their claims heard.   If an American citizen can't even sue political officials who lawlessly imprison and torture him in his own country -- if political leaders are vested with immunity from a claim of this type -- what rational person can argue that the rule of law or the Constitution binds our government officials?

In one sense, this is hardly surprising.  As I've written about before -- and as my forthcoming (September) book documents -- we now have a multi-tiered justice system in the United States where citizens have their legal rights, obligations and punishments determined exclusively by their status and class.  Thus, someone like Jose Padilla, in the lowest class of literal non-person (accused Terrorist), has virtually no chance regardless of the merits of his claims against someone like Donald Rumsfeld, who resides in the highest and most privileged class (high-level political official).  As Padilla's counsel, Ben Wizner, said, the court yesterday ruled "that Donald Rumsfeld is above the law and Jose Padilla is beneath it."  That's just what the American justice system is.

But compare the posture of the American justice system to those in other countries with regard to how victims of illegal War on Terror policies have been treated.  Maher Arar -- a Canadian citizen who was abducted by the U.S. in 2002 at JFK Airport and sent to Syria to be tortured for ten months despite being innocent -- had his case dismissed by American courts before it was even heard on the ground (raised by both the Bush and Obama DOJ) that vital state secrets would be jeopardized by allowing him his day in court; by stark contrast, the Canadian government published a comprehensive public report detailing its own culpable role (and that of the U.S.) in his wrongful abduction, while the Canadian Prime Minister publicly apologized to Arar and announced that he would be paid $8.9 million in compensation for Canada's role in what happened to him.

Binyam Mohamed -- the British resident who was rendered to Morocco and then brutally tortured at Guantanamo -- suffered the same treatment in American courts as Arar thanks to the Obama DOJ's insistence that what was done to him was a "state secret":  his case was dismissed at the initial stage; by contrast, British courts repeatedly ruled in favor of his right to be heard in court, and in November, 2010, it was announced that the British government would pay him, along with 15 other Guantanamo detainees, several millions dollars in damages.  In January, 2011, an Egyptian-born Australian citizen, Mamdouh Habib, reached a monetary settlement with the Australian government after winning the right to sue Australian officials in that nation's court system for their collusion in his torture at Guantanamo and other locations. Similarly, numerous countries in both Eastern and Western Europe and elsewhere have probed and publicly accounted for their governments' role in colluding with the U.S. in abusing human rights over the last decade.

The U.S. Government stands virtually alone in steadfastly blocking all such investigations even though it was the U.S. in the lead in creating this torture and detention system.  Indeed, the American political class barely bothers any longer with even the pretense of legal accountability.  Each political party shields the other from any accountability in a ritual of lawlessness, while the courts concoct ever-new doctrines for shielding our political class from any legal scrutiny

Simultaneously, official Washington's propagandists manufacture new terms to justify this elite immunity.  The American Right has long referred to efforts to compel compliance by American political leaders with the law and Constitution as "lawfare," which they define to mean thusly: "when enemies of the United States attempt to use U.S. courts and legal protections to take action against those entrusted with defending the United States from national-security threats."  Of course, whether someone is an actual "enemy" (as opposed to a wrongly accused one) can only be determined using "law."  Moreover, adopting this mindset by definition means vesting American leaders with the power to break the law.   But those logical quandaries have never undermined this thinking.  This mentality now extends extends far beyond the American Right (those Reasonable Conservatives and Sober Centrists -- Jack Goldsmith, Benjamin Wittes, and Robert Chesney -- have christened their War-on-Terror-venerating blog with that term, while it is the same mentality underlying Obama's Look Forward decrees).  In essence, the very idea that political leaders should be constrained by the Constitution and other law is derided as dangerous, leftist, divisive radicalism.

The contrast between how America's War on Terror victims and abuses have been treated in the American justice system versus much of the rest of the world is instructive indeed.  In those other places, at least some vestiges of the rule of law prevails.  In the U.S., the rule of men does. 

Serious doubt cast on FBI's anthrax case against Bruce Ivins

For years, the FBI believed that it had identified the perpetrator of the 2001 anthrax attacks -- former Army researcher Steven Hatfill -- only to be forced to acknowledge that he wasn't involved and then pay him $5.8 million for the damage he suffered from those false accusations.   In late July, 2008, the FBI announced that, this time, it had identified the Real Perpetrator:  Army researcher Bruce Ivins, who had just committed suicide as a result of being subjected to an intense FBI investigation.  Ivins' death meant that the FBI's allegations would never be tested in a court of law.

From the start, it was obvious that the FBI's case against Ivins was barely more persuasive than its case against Hatfill had been.  The allegations were entirely circumstantial; there was no direct evidence tying Ivins to the mailings; and there were huge, glaring holes in both the FBI's evidentiary and scientific claims.  So dubious was the FBI's case that even the nation's most establishment media organs, which instinctively trust federal law enforcement agencies, expressed serious doubts and called for an independent investigation (that included, among many others, the editorial pages of The Washington Post, The New York Times, and The Wall Street Journal).  Mainstream scientific sources were equally skeptical; Nature called for an independent investigation and declared in its editorial headline:  "Case Not Closed," while Dr. Alan Pearson, Director of the Biological and Chemical Weapons Control Program at the Center for Arms Control and Non-Proliferation -- representative of numerous experts in the field -- expressed many scientific doubts and also demanded a full independent investigation.  I devoted much time to documenting just some of the serious flaws in the FBI's evidentiary claims, as well as the use of anonymous FBI leaks to unquestioning reporters to convince the public of their validity (see here, here, here, and here).

Doubts about the FBI's case were fully bipartisan.  In August, 2008, The New York Times documented "vocal skepticism from key members of Congress."  One of the two intended Senate recipients of the anthrax letters, Sen. Patrick Leahy, flatly stated at a Senate hearing in September, 2008, that he does not believe the FBI's case against Ivins, and emphatically does not believe that Ivins acted alone.  Then-GOP Sen. Arlen Specter, at the same hearing, told the FBI they could never have obtained a conviction against Ivins in court based on their case -- riddled, as it is, with so much doubt -- and he also demanded an independent evaluation of the FBI's evidence.  And in separate interviews with me, GOP Sen. Charles Grassley and Democratic Rep. Rush Holt (a physicist who represents the New Jersey district from which the anthrax letters were mailed) expressed substantial doubts about the case against Ivins and called for independent investigations.

Despite all of this, the FBI managed to evade calls for an independent investigation by announcing that it had asked the National Academy of Sciences to convene a panel to review only the FBI's scientific and genetic findings (but not to review its circumstantial case against Ivins or explore the possibility of other culprits).  The FBI believed that its genetic analysis was the strongest aspect of their case against Ivins -- that it definitively linked Ivins' research flask to the spores in the mailed anthrax -- and that once the panel publicly endorsed the FBI's scientific claims, it would vindicate the FBI's case and end calls for a full-scale investigation into the accusations against Ivins.

But yesterday, the National Academy panel released its findings, and it produced a very unpleasant surprise for the FBI (though it was entirely unsurprising for those following this case).  As The New York Times put it in an article headlined "Expert Panel Is Critical of F.B.I. Work in Investigating Anthrax Letters":  "A review of the Federal Bureau of Investigation's scientific work . . . concludes that the bureau overstated the strength of genetic analysis linking the mailed anthrax to a supply kept by Bruce E. Ivins"; while the panel noted that the genetic findings are "consistent" with the claim that Ivins mailed the letters and can "support" an association, the evidence is far from "definitive," as the FBI had long suggested.  The report, commissioned by the FBI, specifically concluded that "the scientific link between the letter material and [Ivins'] flask number RMR-1029 is not as conclusive as stated in the DOJ Investigative Summary."  This morning's Washington Post article -- headlined:  "Anthrax report casts doubt on scientific evidence in FBI case against Bruce Ivins" -- noted that "the report reignited a debate that has simmered among some scientists and others who have questioned the strength of the FBI's evidence against Ivins."

In addition to reigniting doubts, the report has also reignited calls for an independent investigation into the entire FBI case.  Yesterday, Rep. Holt re-introduced his legislation to create a 9/11-style Commission, complete with subpoena power, with a mandate to review the entire matter.  Sen. Grassley told the Post:  "There are no more excuses for avoiding an independent review."  Ivins' lawyer added that the report confirms that the case against his client is "all supposition based on conjecture based on guesswork, without any proof whatsoever."  All of that has been clear for some time, and yesterday's report merely underscored how weak is the FBI's case.

It is hard to overstate the political significance of the anthrax attacks.  For reasons I've described at length, that event played at least as much of a role as the 9/11 attacks in elevating the Terrorism fear levels which, through today, sustain endless wars, massive defense and homeland security budgets, and relentless civil liberties erosions.  The pithy version of the vital role played by anthrax was supplied by Atrios here and here; in essence, it was anthrax that convinced large numbers of Americans that Terrorism was something that could show up without warning at their doorstep -- though something as innocuous as their mailbox -- in the form of James-Bond-like attacks featuring invisible, lethal powder.  Moreover, anthrax was exploited in the aftermath of 9/11 to ratchet up the fear levels toward Saddam Hussein, as ABC News' Brian Ross spent a full week screeching to the country -- falsely -- that bentonite had been found in the anthrax and that this agent was the telltale sign of Iraq's chemical weapons program, while George Bush throughout 2002 routinely featured "anthrax" as one of Saddam's scary weapons.

That there's so much lingering doubt about who was responsible for this indescribably consequential attack is astonishing, and it ought to be unacceptable.  Other than a desire to avoid finding out who the culprit was (and/or to avoid having the FBI's case against Ivins subjected to scrutiny), there's no rational reason to oppose an independent, comprehensive investigation into this matter.