Our weird winter weather is continuing. This morning’s temperature outside my house is zero degrees! And we’re expecting five more inches of snow this afternoon, most of it during the afternoon rush hour. I guess all I can do is grin and bear it.
Now let’s see what’s happening in the news today.
Lots of people are excited about the ruling yesterday by US District Court Judge Richard Leon that NSA’s bulk collection of Americans’ phone records is “likely unconstitutional,” but the decision is on hold pending appeal by the Feds and as Reuters notes this morning, SCOTUS is probably going to have the final say on what happens to NSA surveillance programs following revelations from the massive trove of data stolen by Edward Snowden and passed to Glenn Greenwald and Laura Poitras.
“This is the opening salvo in a very long story, but it’s important symbolically in dispelling the invincibility of the metadata program,” said Stephen Vladeck, a national security law expert at the American University law school.
Vladeck said 15 judges on the Foreign Intelligence Surveillance Court have examined Section 215 of the USA Patriot Act, the provision of law under which the data collection takes place, without finding constitutional problems. “There’s a disconnect between the 15 judges on the FISA court who seem to think it’s a no-brainer that Section 215 is constitutional, and Judge Leon, who seems to think otherwise.”
Vladeck said there is a long road of court tests ahead for both sides in this dispute and said a higher court ultimately could avoid ruling on the big constitutional issue identified by Leon. “There are five or six different issues in these cases,” Vladeck said.
Robert F. Turner, a professor at the University of Virginia’s Center for National Security Law, predicted Leon’s decision was highly likely to be reversed on appeal. He said the collection of telephone metadata — the issue in Monday’s ruling — already has been addressed and resolved by the Supreme Court.
Maybe the solution would be to repeal the Patriot Act? Anyway, I think it’s important to note that this lawsuit was brought by Larry Klayman, a certified right wing nut who used to head Judicial Watch and now runs something called Freedom Watch.
In the 1990s, he filed numerous lawsuits against President Bill Clinton and his administration, alleging a litany of personal and professional transgressions. Mr. Klayman later nettled Vice President Dick Cheney over his secret energy policy meetings and claimed that members of George W. Bush’s administration might have known in advance of the 2001 anthrax attacks in Washington.
More recently, Mr. Klayman, who has been called “Litigious Larry,” sued OPEC, accusing oil-rich nations of price fixing and of trying to “bring Western economies to their knees.” And he sued Facebook and its founder for $1 billion when, he said, it was too slow to take down a web page that threatened Jews with death.
The guy is a weirdo, so I have to wonder what it was that convinced a conservative Bush-appointed judge like Leon. And will ne be able to convince our right wing Supreme Court? I’d love to see NSA reined in, but I have serious doubts as to whether it will happen.
More on Klayman:
Mr. Klayman is a fixture of sorts in Washington. He founded, and then parted ways, with the conservative interest group Judicial Watch, which continues litigating grievances despite Mr. Klayman’s bitter departure. (He sued Judicial Watch, too, accusing it of breach of contract and other offenses.) His 2009 book is titled “Whores: Why and How I Came to Fight the Establishment.”
Mr. Klayman has not spared the current Democratic administration. At a Tea Party rally in October, he urged conservatives “to demand that this president leave town, to get up, to put the Quran down, to get up off his knees, and to figuratively come out with his hands up.”
Last year, Mr. Klayman filed a lawsuit in Florida arguing that Barack Obama was ineligible to be president because “neither Mr. Obama, nor the Democratic Party of Florida, nor any other group has confirmed that Mr. Obama is a ‘natural born citizen’ since his father was a British subject born in Kenya and not a citizen of the United States.”
On June 6, just a day after the Guardian report [on Edward Snowden’s revelations about NSA phone data collection], Klayman filed suit in Washington on his own behalf and on behalf of two clients — Charles and Mary Ann Strange, parents of a Navy SEAL killed in a disastrous helicopter crash in Afghanistan in 2011….
Klayman said he and Charles Strange were being targeted by the government because of their claims relating to Strange’s son’s death, which include a complaint that a Muslim imam cursed the dead SEAL team members during a ceremony at Dover Air Force Base.
“My colleagues have received text messages I never sent,” Klayman told the judge. “I think they’re messing with me,” he said, referring to the government.
Klayman implored the judge to rule against the NSA program not only on legal grounds but in order to avert what the conservative gadfly said was a violent revolution on the verge of breaking out due to the federal governments [sic] unbridled use of power.
“We live in an Orwellian state,” Klayman said, warning that citizens angry about surveillance were about to “rise up.”
If litigation fails, “the only alternative is for people to take matters into their own hands,” he told Leon.
I wonder what parts of these arguments convinced Judge Leon?
Despite the weirdness, Charles Pierce is cheering Leon’s decision:
No matter what you think of Snowden, or Glenn Greenwald, and no matter what you think of what they did, this ruling does not happen if the NSA doesn’t let a contractor walk out of the joint with the family jewels on a flash drive. This ruling does not happen if we do not know what we now know, and we don’t know any of that unless Snowden gathers the data and leaks it to the Guardian. This entire country was founded after a revolution that was touched off to a great extent by the concept of individual privacy.
Read all about it at the Esquire link.
I know it’s difficult for some males to understand this, but if Americans do have a right to privacy, then American women should also have that right in making decisions about what happens to their bodies–they should be able to choose whether or not and/or when to have a child. Therefore, they should have access to birth control and abortion without the interference of the state. If women–who represent more than 1/2 of the U.S. population–can’t have privacy; then there is a very big disconnect in the law that needs to be clarified. Are women people? Are they citizens? Griswald and Roe were also decided on the basis of privacy.
After their fluff piece on NSA on Sunday, CBS’ 60 Minutes announced yesterday that Lara Logan, who was “suspended” after she hosted an utterly false report on the Benghazi attacks, will be returning to the program next year. Politico’s Dylan Byers:
Logan and McClellan took leave following public pressure over an Oct. 27 report in which security contractor Dylan Davies claimed to have been present and active at the Sept. 11 raid on the U.S. diplomatic mission in Benghazi. Reports later indicated that Davies had told both his contractor and the FBI that he was not present at the compound on the night of the attack. Logan later apologized and “60 Minutes” retracted the story.
Despite public criticism and internal frustrations among some members of the “60 Minutes” team, CBS News chairman and “60 Minutes” executive producer Jeff Fager decided to stand by Logan. Earlier this month, he held a meeting with CBS News staff in which he defended the 42-year-old journalist, saying that as EP he was ultimately responsible for failing to catch the mistake.
As an antidote, I recommend reading TBogg’s take on this decision at Raw Story: Lara Logan is tan, rested and ready to come back and be kind of bad at her job again.
Last week, it was revealed that LA Sheriff’s Office deputies who have been indicted by a Grand Jury had illegally arrested and “roughed up” two foreign diplomats in 2011. From the LA Times:
An Austrian consulate official was improperly arrested and searched by L.A. County sheriff’s deputies at the Men’s Central Jail, according to four indictments filed against 18 department officials.
The incident occurred in 2011 when the official and her husband were visiting an inmate who was an Austrian national….
The Austrian consul’s husband was arrested outside the jail because he had walked near the doors going into the visiting center, according to one of the indictments unsealed Monday.
When the consul requested to speak to a supervisor about her husband’s arrest, she too was placed in handcuffs and arrested, even though she had committed no crime and would have been immune from prosecution, the indictment said.
The couple were taken to a deputy break room and searched, the indictment said.
Read more details at the link. And from Firedoglake, Peter Van Buren explains why this is so outrageous:
One of the primary jobs for any embassy or consulate abroad is the welfare of its citizens. Indeed, many of the first diplomatic outposts abroad were set up to protect sailors and merchants. This work typically includes visiting one’s citizens in foreign jails, a task young diplomats around the world conduct. As a State Department foreign service officer myself for 24 years, I must have done this hundreds of times. But no matter how many times I did it, it was always an unsettling feeling to walk into a jail, go through security into a cell or holding room, and then walk back out.
Getting out, and being treated properly inside, was however more than an act of faith on my part. Diplomats abroad are protected people; under both formal treaties and long-established traditions (“diplomatic immunity”), a country should not mess around with another’s diplomats. Take a look at Iran– over thirty years since the kidnapping of American diplomats in Tehran, our two countries still are a long, long way from reestablishing relations.
I once safely visited in an underground facility of an Asian country’s secret police an American Citizen who likely had been tortured. The system generally works everywhere, from first world countries to crappy police states in the developing world. However, one rough area where it does not work is in Los Angeles.
Please read the rest if you can.
Today we learn that the NYPD also abused a foreign diplomat. The woman, a deputy consul general at the Indian embassy in NYC was arrested and handcuffed on the street and then subjected to a strip search at police headquarters. From The Guardian:
Bulldozers have removed security barriers outside the US embassy in Delhi as a diplomatic row prompted by the arrest of an Indian diplomat on visa fraud charges in New York intensified.
India’s national security adviser on Tuesday called the treatment of Khobragade “despicable and barbaric” and the country’s foreign secretary summoned the US ambassador. Politicians – including Rahul Gandhi, the scion of the Nehru-Gandhi dynasty and vice chairman of the ruling Congress party, and Narendra Modi, the prime ministerial candidate of the Hindu nationalist opposition BJP – refused to meet a visiting US congressional delegation.
The removal of the barriers was one of a slew of retaliatory actions taken by the Indian government as outrage at the arrest grew, including the withdrawal of import clearances and special airport passes. The incident has become a major story in India, dominating TV bulletins.
The false statements were that Khobragade had agreed to pay the housekeeper the New York minimum wage ($9.25), but had agreed privately with the woman that her actual salary would be only 1/3 that amount.
Furious with the US for the arrest and alleged strip search of its high-ranking diplomat Devyani Khobragade, India today retaliated with a slew of measures to pare down the privileges of American diplomats. (10 latest developments)
US diplomats in consulates across India have been asked to surrender identity cards issued to them and their families, which entitle them to special privileges. India has also withdrawn all airport passes for consulates and import clearances for the embassy.
The Delhi police removed barricades outside the sprawling US embassy in the capital.
Ms Khobragade was subjected to a humiliating strip search and was kept in a cell with drug addicts after her arrest for alleged visa fraud in New York last week. (Read) Noel Clay, a spokesperson for the US State Department, told NDTV that standard procedures had been followed during Ms Khobragade’s arrest.
The US has implied that she enjoyed only limited immunity.
As part of its reciprocal measures, India is asking for details like salaries paid to Indian staff employed in US consulates, including those working as domestic helps with the families of American officials.
It seems that, between the NSA revelations and the increasing use of police state tactics by law enforcement, the US is managing to alienate much of the rest of all the world.
I’m out of space, so I’ll wrap this up. Now it’s your turn. What stories are you focusing on today? Please post your links in the comment thread and have a great day!
The big day is finally here. I voted In Massachusetts by absentee ballot shortly after I got to Indiana. I voted for Barack Obama and Joe Biden for President and Vice President, and for Elizabeth Warren for Senator. I voted for my long-time Representative Ed Markey. I also voted in favor of ballot questions on legalizing physician assisted suicide and medical marijuana in Massachusetts.
In 2008, I didn’t care much for Barack Obama, because I didn’t think he had any real ideology and I didn’t trust him to stand up to the Republicans. But I have to admit that he accomplished some good things in his first term.
I still have plenty of problems with President Obama’s policies. I think he should have fought harder for a bigger stimulus and for a public health care option. I think the President should have made a much more serious effort to deal with the foreclosure crisis, prosecute the banksters who brought down our economy, and create jobs through government investment.
I strongly disapprove of Obama’s support for the Patriot Act and for his use of drones to assassinate suspected “terrorists”–along with many innocent civilians–in several foreign countries. I’m glad he found Osama bin Laden, but I think he should have been arrested and put on trial instead of being summarily executed.
On the other hand, the stimulus–though not large enough–did help state and local governments save and create jobs. I think the auto bailout was absolutely necessary and it seems to have saved and created jobs for many U.S. workers. I appreciate that President Obama reversed Don’t Ask Don’t Tell and came out in support of same-sex marriage. I believe that this president has grown in office and that he now recognizes that the Republicans in Congress are never going to compromise with him.
I also think President Obama did a very smart thing in appointed Hillary Clinton as Secretary of State and giving full control over the State Department. Many of Obama’s advisers didn’t want him to appoint Hillary, but he did it anyway. I respect that Obama has asked for Bill Clinton’s help during the past couple of years and has wholeheartedly thanked him for his efforts.
We now face a choice between a President who kept us out of another Great Depression, managed to pass a health care law that is at least a step in the right direction, and appears to have grown in office, and a man who is a pathological liar and race baiter who represents the top 1%–the people who got us into the financial crisis in the first place; who conceals his highly suspect finances and potential conflicts of interest; who refuses to spell out what he would do if elected, who treats the electorate with utter disrespect, and who clearly has no understanding of or interest in what it is like to be poor, or even middle class. We do know that, if elected, Mitt Romney would appoint Supreme Court Justices who would very likely overturn Roe v. Wade, the Voting Rights Act, and other important progressive court decisions.
Obama must be reelected or our country will be be in deep deep trouble.
If Obama wins reelection, I think we must continue to be eternally vigilant. I strongly suspect that he will push for what he calls a “grand bargain,” which is really a “great betrayal.” We cannot let his desire to “reach across the aisle” lead him to accede to the Republicans’ austerity agenda and trade away the social safety net that allows so many elderly, disabled, and poor people to live with some kind of dignity.
Just in my lifetime, the American people have lived through many difficult times politically. Our rights were threatened and curtailed in the McCarthy era, we faced the murder of President John F. Kennedy, and later the murders of Martin Luther King and Robert F. Kennedy. We dealt with Watergate, Iran Contra, and 9/11. For the past thirty years we’ve faced increasing income inequality and reduced opportunities for upward mobility. Our rights have been threatened anew by fundamentalist crazies and by Bush’s “war on terror.”
Democracy isn’t easy. It’s very hard, as we have seen in the past week watching people in Ohio and Florida struggling to exercise their rights to vote and over the past couple of years as we watched Republican legislatures try restrict voting rights and take away women’s control over their own bodies and their health care choices.
But we can’t quit. We must fight on to make this country a place we can be proud of and a place where our children and grandchildren can have decent lives. We have to try. If Obama is reelected, we have a chance. If Romney wins, we go back to the Bush years–on steroids.
I’ve gone on a rant now and taken up a lot of space in this post, but I wanted to express how I feel about this election. Over the past four years, I’ve realized that we really can’t have perfection–only progress, if we work at it. President Obama has made some progress, and in a second term, he can be pushed to make more. I’m glad I decided to vote for him.
I do have some news items for you.
Unfortunately, the areas that were hardest hit by Hurricane Sandy last week are facing a nor’easter this week.
Storm-savaged New Yorkers still drying out and rebuilding their lives after the fury of Hurricane Sandy face another nightmare barreling up the East Coast — an angry nor’easter packing winds of 55 mph hour that’s expected to pummel the area on Wednesday.
Forecasters say the latest assault from Mother Nature — while not nearly as ferocious or crippling as the Oct. 29 superstorm — is expected to bring renewed coastal flooding to parts of the city and the New Jersey shore, where Sandy obliterated protective sand dunes and age-old natural beach defenses.
New power outages could strike still-ravaged swaths of Staten Island, the Bronx and Westchester — and possibly “undo” some of the repairs Con Ed has made to its battered system, said John Miksad, the utility’s senior vice president of electric operations….
Meteorologists expect howling winds whipping up to 3 inches of rain along the Northeastern shoreline late Wednesday afternoon. Then it may get worse: Forecasters also fear a bone-chilling cold by Thursday morning that could bring several inches of snow to New York, New Jersey and eastern Pennsylvania.
Dana Millbank says that a new Romney has suddenly emerged in the final days of the campaign. What number incarnation is this?
As he made his closing appeal to voters on the final day before the election, Mitt Romney sounded as though, at any moment, he might burst into a song from the musical “Annie.”
“Tomorrow’s a moment to look into the future and imagine what we can do,” he said.
“Tomorrow, we get to work rebuilding our country, restoring our confidence and renewing our conviction.”
“Tomorrow, on November 6th, we come together for a better future.”
“Tomorrow is a new beginning. Tomorrow we begin a new tomorrow.”
As usual, Romney is talking ragtime–making no sense whatsoever. Either he really believes he’ll win the election, or he’s just blabbering aimlessly waiting for his dream to die. The death stench must be unbearable for anyone who gets close to him.
Still, despite Millbank’s claims, the mean Romney still lives on. His campaign is making robocalls calling President Obama a ‘Threat To Our Religious Freedom.’ Here’s the transcript of the call:
Christians who are thinking about voting for Obama should remember what he said about people of faith: “They … cling to guns or religion.” And remember when Obama forced Christian organizations to provide insurance coverage that was contrary to their religious beliefs?
That’s the real Barack Obama. That’s the real threat to our religious freedom. Mitt Romney understands the importance of faith and family. That’s why so many leaders of the Christian community are supporting Romney.
They know we can’t underestimate the threat Barack Obama poses to our faith, our values, our freedom.
So once again, Romney is playing the race card, suggesting that Obama is not a real American and that he’s lying about his religious beliefs.
Paul Ryan expressed something similar on a conference call with members of Ralph Reed’s Faith and Freedom Coalition:
Representative Paul D. Ryan accused President Obama on Sunday of taking the country down a path that compromised Judeo-Christian values and the traditions of Western civilization….
“It’s a dangerous path,” Mr. Ryan said, describing Mr. Obama’s policies. “It’s a path that grows government, restricts freedom and liberty and compromises those values, those Judeo-Christian, Western civilization values that made us such a great and exceptional nation in the first place.”’
A spokesman for Mr. Ryan, Michael Steel, said, “He was talking about issues like religious liberty and Obamacare – topics he has mentioned frequently during the campaign.”
Sigh… if only we could be rid of Ryan tomorrow, but I suppose he’ll be back in Congress if Romney loses.
New Jersey Governor Chris Christie refused to appear at a campaign event with Mitt Romney on Sunday.
New Jersey Gov. Chris Christie, who was effusive in his praise of President Barack Obama when the two leaders toured damage from Hurricane Sandy last week, turned down a request by Mitt Romney to appear with him at a rally on Sunday night in Pennsylvania, The Huffington Post has learned.
Christie’s decision will only add to questions among Republicans about what the governor — who is up for reelection a year from now — is thinking, and why he went out of his way to heap praise on the president, and then refused to appear with Romney.
The Romney rally was held at a farm in Morrisville, Pa., not more than 20 minutes from Trenton, the New Jersey capital. The physical proximity of the event to New Jersey only added to questions in the Romney campaign about why Christie chose not to come.
“You can’t tell me he couldn’t have gone over there for a night rally,” a Romney campaign source told HuffPost.
Meanwhile Christie’s new BFF Barack Obama made Christie’s dream come true: Chris Christie moved to tears by hug from Bruce Springsteen.
New Jersey Governor Chris Christie said on Monday that he was moved to tears by recent interactions with singer Bruce Springsteen, who hugged the governor at a benefit concert for victims of Hurricane Sandy on Friday and spoke with Christie by phone on Monday while flying aboard Air Force One with President Obama.
Christie, a Republican, is an ardent fan of Springsteen, a noted liberal who was traveling with the president to Columbus, Ohio, after playing at an Obama rally in Madison, Wis. Christie said during a press briefing that Obama called during the flight to discuss New Jersey’s recovery from Sandy and then handed the phone to Springsteen.
“[Obama] told me in times of real difficulty, he thought that the only thing better than one Jersey guy were two Jersey guys, and he put Bruce Springsteen on the phone,” Christie said.
“Bruce said to me how proud he was of his state and how proud he was of the people of this state and how tough they are,” Christie added. “And he’ll be back to the Jersey Shore soon.”
I can’t help but be happy for the guy. Will he be running against Hillary Clinton in 2016? Who knows? I just hope that sometime tonight we’ll know whether we’ll have an Obama second term or two pathological liars running the country back into the ditch.
Now what are you reading and blogging about today?
Yesterday I read an interesting essay by William Black over at New Economic Perspectives. In the essay, Black, who headed the forensic audit team during the S&L crisis, pulls forward the Broken Window Theory, a criminological model based on a simple and some have said simplistic idea. The theory was introduced by James Q. Wilson and received a fair amount of popularity during the 1990s, particularly in conservative circles.
Readers might remember Rudy Giuliani’s ‘war against graffiti,’ his zero-tolerance campaign in NYC. That effort, the elimination of the squeegee men and the crack down on street prostitution among other things were based on the broken window philosophy, which uses an abandoned building metaphor.
Imagine a building in any neighborhood [although Wilson focused exclusively on what he termed ‘blue-collar crime.’] The first broken window of our abandoned building if left unrepaired sends a clear message to antisocial types: no one cares about this building. So, it’s open season on all the other windows, on anything of value that’s been left behind. If the owner doesn’t care about the integrity of the building then the street tough is encouraged to vandalize and take whatever’s not nailed down.
The attitude feeds on itself or so the theory goes. Honest citizens are less likely to confront the petty thief, which only encourages others to act out in destructive, antisocial ways. Honest citizens begin to feel overwhelmed and outnumbered and stop safeguarding their own neighborhoods. What’s the point? they say. No one cares. Communities begin to self-destruct.
Now whether you buy into this crime theory or not, I think the metaphor holds when you consider what we’ve been witnessing in the degradation of our financial markets, our legal system, even the refusal to admit that ‘there’s trouble in River City.’
As Professor Black points out, if we were to take Wilson’s theory and apply it to the explosion of ‘white collar crime’ within our financial system, it would be a major step in restoring the integrity of our system and bolstering peer pressure against misconduct. As it stands now, Wall Street movers and shakers and their DC handmaidens have implemented business-as-usual policies that reward the thief and punish the whistleblower. As Black points out in the essay:
We have adopted executive and professional compensation systems that are exceptionally criminogenic. We have excused and ignored the endemic “earnings management” that is the inherent result of these compensation policies and the inherent degradation of professionalism that results from allowing CEOs to create a Gresham’s dynamic among appraisers, auditors, credit rating agencies, and stock analysts. The intellectual father of modern executive compensation, Michael Jensen, now warns about his Frankenstein creation. He argues that one of our problems is dishonesty about the results. Surveys indicate that the great bulk of CFOs claim that it is essential to manipulate earnings. Jensen explains that the manipulation inherently reduces shareholder value and insists that it be called “lying.” I have seen Mary Jo White, the former U.S. Attorney for the Southern District of New York, who now defends senior managers, lecture that there is “good” “earnings management.”
My husband had some unsettling experience in this area. Early in his career, he worked as a CPA [the two companies will remain nameless]. But in each case, he was ‘asked’ to clean up the numbers, make them look better than they were. He refused and found himself on the street, looking for employment elsewhere. I remember him saying at the time, ‘Look, I’m a numbers guy. I’ve never been good at fiction writing.’ This was back in the late 70s early 80s, so this attitude has been a long time in the making. Now, we’re seeing accounting fraud that is literally off the charts. Is it any wonder the country’s financial system is on life support?
We can see the destructive results of this careless, corrupt posturing all around us. Professor Black continued:
Fiduciary duties are critical means of preventing broken windows from occurring and making it likely that any broken windows in corporate governance will soon be remedied, yet we have steadily weakened fiduciary duties. For example, Delaware now allows the elimination of the fiduciary duty of care as long as the shareholders approve. Court decisions have increasingly weakened the fiduciary duties of loyalty and care. The Chamber of Commerce’s most recent priorities have been to weaken Sarbanes-Oxley and the Foreign Corrupt Practices Act. We have made it exceptionally difficult for shareholders who are victims of securities fraud to bring civil suits against the officers and entities that led or aided and abetted the securities fraud. The Private Securities Litigation Reform Act of 1995 (PSLRA) has achieved its true intended purpose – making it exceptionally difficult for shareholders who are the victims of securities fraud to bring even the most meritorious securities fraud action.
Reading this, I immediately sensed we could apply the metaphor just as easily to our legal predicament. Dak wrote to this yesterday—about the disheartening disrepair of our justice system, which was badly wounded during the Bush/Cheney years with the help of eager lawyers like John Yoo, stretching, reinterpreting, rewriting the parameters on the subjects of torture, indefinite detention, rendition, etc.
Not to be outdone, Eric Holder stood before Northwestern University’s Law School the other day and with the same twisted logic, explained away due process, otherwise known as ‘how to justify assassination.’ In this case, American citizens, those the President deems are a threat to the Nation, can be killed on native ground or foreign soil. Jonathon Turley, law professor at George Washington University and frequent legal commentator in the media, headed a recent blog post as follows: Holder Promises to Kill Citizens with Care.
Sorry, this does not make me feel better. What it does make me think is lawlessness simply breeds more lawlessness. The Broken Window theory writ large. As Turley explained:
The choice of a law school was a curious place for discussion of authoritarian powers. Obama has replaced the constitutional protections afforded to citizens with a “trust me” pledge that Holder repeated yesterday at Northwestern. The good news is that Holder promised not to hunt citizens for sport.
Holder proclaimed that “The president may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a U.S. citizen.” The use of the word “abroad” is interesting since senior Administration officials have asserted that the President may kill an American anywhere and anytime, including the United States. Holder’s speech does not materially limit that claimed authority. He merely assures citizens that Obama will only kill those of us he finds abroad and a significant threat. Notably, Holder added “Our legal authority is not limited to the battlefields in Afghanistan.”
Turley went on to comment that Holder was vague, to say the least, when it came to the use of these ‘new’ governmental/executive powers, claiming that the powers-that-be will only kill citizens when:
“the consent of the nation involved or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.”
And as far as ‘due process?” Holder declared that:
“a careful and thorough executive branch review of the facts in a case amounts to ‘due process.’”
Chilling! As Turley grimly noted in an earlier post, this is no longer the land of the free.
Seemingly unrelated was this report from the New York Times: the heart of Dublin’s 12th-century patron saint was stolen earlier this week from Christ’s Church Cathedral. The heart of Laurence O’Toole had been housed in a heart-shaped box, safely secured [or so church authorities believed] within an iron cage. The relic’s disappearance was preceded by a rash of reliquary robberies from churches, monasteries and convents around Ireland. According to the article:
The small cage hosting the heart-shaped box containing the relic was tucked away in an innocuous alcove at the side of a small altar. Visitors to the cathedral on Monday stared at the twisted bars and the empty space behind. The bars themselves were sundered evenly.
According to Dermot Dunne, dean of Christ Church, the box had lain undisturbed for centuries. He had no idea why someone would take it.
Whether it’s the heart of a saint or the heart of a Nation, the theft is a grievous insult. The crime betrays the public trust and our basic sense of decency. But the thieves of O’Tooles’s heart performed a curious act before exiting.
The Irish culprits lit candles at two of the Cathedral’s altars. Which means the perpetrators possessed, at the very least, an ironic sense of tradition.
The same cannot be said of our homegrown hooligans. Crass greed and the lust for unlimited power have their own dark tradition. As Americans, we do not expect vice to be confused with virtue. In the past, we could not imagine a blatant disrespect for the Rule of Law–crimes ignored, excused, then openly declared necessary for whatever raison du moment.
Not here, we told ourselves repeatedly. Not in the United States.
Perhaps, we should light candles of our own. A small devotion for the lost and dying.
Maybe we should change the name of the DOJ to the Department of Expedience. The War on Terrorism continues to be a War on the American and our Constitutional idea of justice. Eric Holder’s speech yesterday at Northwestern’s School of Law puzzles many of us that had hoped a change from the Bush/Cheney regime would mean a return to civil liberties. Assassination of US citizens–implying no trial, no jury of peers, and no due process–by classifying them as terrorists is an end run around our Constitution that must not stand. Eric Holder’s thin justification of the Obama policy of assassination sounds a lot like triangulation.
Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.
When Obama officials (like Bush officials before them) refer to someone “who is a senior operational leader of Al Qaeda or associated forces,” what they mean is this: someone the President has accused and then decreed in secret to be a Terrorist without ever proving it with evidence.
This process still seems to be a murky one as pointed out at Empty Wheel. This is beyond unacceptable.
As of a month ago–four months after Awlaki was killed–the Senate Intelligence Committee had not been provided with the legal framework for Awlaki’s kill. This, in spite of the fact that SSCI member Ron Wyden had been requesting that framework for over five months before Awlaki was killed.
I said when Wyden made that clear that it showed there had not been adequate oversight of the killing. By his words–if not his deeds–Holder effectively made the same argument.
The speech appears to be an elaborate justification of a policy that could basically spin on the whims of a president and his/her cronies. This is especially appalling given the FBI “stings” that have been aimed at catching terrorists that seem more aptly labelled as pushing some depressed, emotionally damaged people into becoming aspirational terrorists and then enabling them to do something dangerous. I can only assume that the CIA is probably just as bad if not worse.
The Holder speech was weak as a public explanation. It’s basis in law appears weaker.
Still, the speech contained no footnotes or specific legal citations, and it fell far short of the level of detail contained in the Office of Legal Counsel memo — or in an account of its contents published in October by The New York Times based on descriptions by people who had read it.
The administration has declined to confirm that the memo exists, and late last year, The Times filed a lawsuit under the Freedom of Information Act asking a judge to order the Justice Department to make it public. In February, the American Civil Liberties Union filed a broader lawsuit, seeking both the memo and the evidence against Mr. Awlaki.
Last month, Justice Department court filings against Umar Farouk Abdulmutallab, the Nigerian man who attempted to blow up a Detroit-bound airliner on Dec. 25, 2009, provided a detailed account — based on his interrogations — of Mr. Awlaki’s alleged involvement.
Mr. Holder, by contrast, did not acknowledge the killing of Mr. Awlaki or provide new details about him, although he did mention him in passing as “a U.S. citizen and a leader” of Al Qaeda’s Yemen branch when discussing Mr. Abdulmutallab.
Holder also noted that in using lethal force, the United States must make sure that it is acting within the laws of war by ensuring that any target is participating in hostilities and that collateral damage is not excessive. And he noted that law-of-war principles “do not forbid the use of stealth or technologically advanced weapons” — an apparent reference to drones.
More broadly, Holder argued that the targeting of specific senior belligerents in wartime in not unusual, and noted the 1943 U.S. tracking and shooting down of the plane carrying Japanese Adm. Isoroku Yamamoto, the commander of the attack on Pearl Harbor.
He said that “because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law . . . and our legal authority is not limited to the battlefields of Afghanistan.”
Holder said he rejected any attempt to label such operations “assassinations.”
“They are not, and the use of that loaded term is misplaced,” he said. “Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self-defense against a leader of al-Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the executive order banning assassination or criminal statutes.”
Holder said “it is preferable to capture suspected terrorists where feasible — among other reasons, so that we can gather valuable intelligence from them — but we must also recognize that there are instances where our government has the clear authority — and, I would argue, the responsibility — to defend the United States through the appropriate and lawful use of lethal force.”
I am not a constitutional lawyer. I do not even play one on TV so I can’t speak to the finer points of the due process clause. I just know this does not pass my “smell test”. I have read statements by lawyers. Here’s a sampling from MOJO and Adam Sewer.
Both supporters and opponents of the administration’s targeted killing policy offered praise for the decision to give the speech. They diverged, however, when it came to the legal substance. “It’s essential that if we’re going to be doing these things, our top national security and legal officials explain why it’s legal under international and constitutional law,” said Benjamin Wittes, a legal scholar with the Brookings Institution, who said he thought the speech fulfilled that obligation. “I think [the administration] is right as a matter of law.”
In a statement, Hina Shamsi, director of the ACLU’s national security project, called the authority described in the speech “chilling.” She urged the administration to release the Justice Department legal memo justifying the targeted killing program—a document that the ACLU and the New York Times are currently suing the US government to acquire. “Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.”
Here’s a point-by-point list of things that I think is worth reading from Lawfare. This is a small portion of that article. I really suggest you go read all of the points to get an understanding of the policy and its process.
That is, the speech asserts that Due Process permits targeting of a citizen at least when the target is:
(i) located abroad rather than in the United States,
(ii) has a senior operational role
(iii) with al Qaeda or an al Qaeda-associated force,
(iv) is involved in plotting focused on the death of Americans in particular,
(v) that threat is “imminent” in the sense that this is the last clear window of opportunity to strike,
(vi) there is no feasible option for capture without undue risk, and
(vii) the strike will comply with the IHL principles of necessity, distinction, proportionality, and humanity
All of this takes away from the many questions surrounding the first recipient of the assassination treatment. Marcy at Empty Wheel reminds of the thin ice upon which Holder skates.
Perhaps it’s because of all the dubious reasons the Administration continues to keep its case against Anwar al-Awlaki secret, but Eric Holder gave the impression of not knowing precisely what evidence the government had shown against Awlaki.
Or, deliberately misrepresenting it.
Holder mentioned Awlaki just once–purportedly to summarize Abdulmutallab’s case against Awlaki they released last month.
For example, in October, we secured a conviction against Umar Farouk Abdulmutallab for his role in the attempted bombing of an airplane traveling from Amsterdam to Detroit on Christmas Day 2009. He was sentenced last month to life in prison without the possibility of parole. While in custody, he provided significant intelligence during debriefing sessions with the FBI. He described in detail how he became inspired to carry out an act of jihad, and how he traveled to Yemen and made contact with Anwar al-Aulaqi, a U.S. citizen and a leader of al Qaeda in the Arabian Peninsula. Abdulmutallab also detailed the training he received, as well as Aulaqi’s specific instructions to wait until the airplane was over the United States before detonating his bomb. [my emphasis]
Note, this misrepresents what Abdulmutallab said, at least as shown by the summary released last month (setting aside the reasons DOJ chose not to test those claims at trial). What the summary did say was that Awlaki gave Abdulmutallab specific instructions to ignite his bomb while over the US. It did not say Awlaki was “a leader of al Qaeda in the Arabian Peninsula.” That’s DOJ’s elaboration, a frankly dishonest one, given the construction (and one that was probably at least significantly challenged by the intelligence Jubeir al-Fayfi delivered ten months after Abdulmutallab gave his testimony).
This is obviously a complex situation that needs full time attention by a lot of folks with a lot more than I can provide here. It’s something, however, we all need to follow.
As offensive as all these assaults, affronts and crazy talk have been, there’s been something else operating in the background, which begs the question:
What’s up with the joint military/police exercises being conducted in our cities?
The question lingers in the air, a thick mist of doubt laced with a pinch of paranoia. We live in an era that breeds both with incredible ease.
On the heels of the National Defense Authorization Act [NDAA’s] passage, replete with an indefinite detention clause that President Obama signed onto, against the security advice of the FBI and NSA, it’s a question that leads even the level-headed to ponder the rhyme and reason of military/police training maneuvers inside American cities.
In late January, Los Angeles was an operational site. In August of last year, Boston and earlier exercises were held in Miami and Little Rock. The purpose? According to official statements:
This will be routine training conducted by military personnel, designed to ensure the military’s ability to operate in urban environments, prepare forces for upcoming overseas deployments, and meet mandatory training certification requirements.
Hummm. I thought that’s what military bases were for? And forgive me, I don’t see anything ‘routine’ about this. I grew up near Fort Dix and McGuire Air Force Base in NJ. We had plenty of planes and helicopters in the sky and military equipment trucking down the highways.
But military exercises in our living space? Never.
We’ve seen the images from Greece, the Cradle of Democracy in flames, the populace pushed to extremes by financial/political deals that insist on further tightening of the economic thumbscrews. These remedies never apply to those inflicting the misery. But for the general population? Pain is good. Could these draconian prescriptions and subsequent reactions happen here?
Lest we forget, we’ve seen the prologue. Here:
I’ve written before about the creeping militarization of local police force units, where routine calls are turned into SWAT team events, complete with wartime accouterments—uniforms, weapons and vehicles. And then there are the drones added to our airspace for additional surveillance and security, features that some would tell us are simply the next reasonable step in effective police work. The President has signed the FAA Reauthorization Bill, which among other things authorizes drone utilization in American airspace. The Agency projects 30,000 drones in operation by 2020.
And now our cities are hosting military and police force exercises, presumably to prepare for overseas’ deployment.
The local CBS affiliate in Los Angeles started with this lead:
If you notice a heavy military presence around downtown Los Angeles this week, don’t be alarmed — it’s only a drill.
Former Police Chief Norm Stamper, a 35-year police force veteran who oversaw the disastrous response to the 1999 WTO Battle in Seattle, has been vocal in his concern about militarizing our domestic police forces. He takes himself to task in going along with the brass in Seattle, where police took a hard-ass stand that resulted in injury and considerable property damage. Instead of the cautionary tale that Seattle might have provided, the paramilitary mindset was further cemented into place after 9/11. The Department of Homeland Security funded cities and small towns across America for ‘terrorist preparedness’ training and equipment. And those small, unlikely terrorist targets took those funds and armed their Police Departments to the teeth.
The paramilitary bureaucracy and the culture it engenders—a black-and-white world in which police unions serve above all to protect the brotherhood—is worse today than it was in the 1990s. Such agencies inevitably view protesters as the enemy. And young people, poor people and people of color will forever experience the institution as an abusive, militaristic force—not just during demonstrations but every day, in neighborhoods across the country.
He also cites the military model adopted by police bureaucrats, an archaic attitude that fosters a dedication to authoritative regulations rather than an officer’s behavior in the streets. And the senseless ‘War on Drugs’ that adds an overblown righteousness to the mayhem, a policy that criminalizes non-violent drug use and imprisons more of our citizens, ratio to population, than anywhere else on the planet. The US represents 5% of the world’s population, yet we have 25% of the world’s prisoners.
Let that sink in!
What the hell are we doing? To our own people.
Shortly before leaving for Christmas, I’d read the announcement about the exercise in Los Angeles, scheduled and carried out in late January. Frankly, I had no idea that these other ‘exercises’ had ever taken place.
Here’s a description [after the fact] of the ‘training exercise’ in Boston:
Land chopper on roof
U.S. military commandos practiced raids in the shuttered Agassiz Elementary School last month, including a nighttime helicopter landing on the school’s roof, the Gazette has learned.
The elite special forces training was done without notice to nearby residents. No live ammo or explosives were involved and safety measures were taken, according to military spokesperson Kim Tiscione.
A vaguely worded July 25 press release from the Mayor’s Office announced citywide “military training exercises,” including helicopters, through Aug. 5. In fact, the exercises were top-secret training for the U.S. Special Operations Command (USSOCOM), whose commandos recently killed terrorist Osama bin Laden, Tiscione told the Gazette.
“I know a lot of it can look really different when it’s in your own back yard,” Tiscione said of the training, which included the two-minute helicopter landing around 9 p.m. on July 28. “Safety is absolutely something we are concerned about.”
Safety is of prime concern? One would think local residents would have been thoroughly informed and prepared before a helicopter was landed on the roof of an abandoned school. Elsewhere the ‘helicopters’ were identified as a Black Hawks, buzzing among familiar business locations, always at night.
Brian O’Connell, a resident of Jamaica Plain had the following to say, following the Boston maneuvers:
Our great nation (which as you know, doesn’t tax the super rich or corporations) is currently engaged in a legislative battle royal over spending priorities. Meanwhile, the estimated price tag for our wars in the Middle East is $4 TRILLION. We close down schools in heavily populated urban areas and use the space for Special Forces raids while our unaccountable elected leaders pander behind close doors with the military industrial complex and use our communities as a commando training site. I find all of this obscene, and I know that there are many people who feel the same.
Correct me if I’m wrong but where are these ‘future deployments’ envisioned when the Iraq war has been officially ended and Afghanistan will be drawing down next year? I’m all for defending the country but who or what are these combined forces defending it from? Are these training exercises for a possible Iran invasion? The drumbeat for war has been incessant, while most Americans have little appetite for another round of senseless, endless conflict. Or are these staging operations preparing for something else?
Chris Hedges, never reluctant to criticize a system he considers thoroughly corrupt and acting against the public’s interest [not to mention Constitutional law] had this to say:
And I think, without question, the corporate elites understand that things, certainly economically, are about to get much worse. I think they’re worried about the Occupy movement expanding. And I think that, in the end–and this is a supposition–they don’t trust the police to protect them, and they want to be able to call in the Army.
I sincerely hope the man is wrong. Unfortunately, Hedges’ has been a modern day prophet, predicting the corporate takeover of the United States that we, citizens-at-large are beginning to recognize everywhere we look.
Which begs two questions:
- What’s up with the military/police exercises being conducted in our cities?
- And would we be prepared for the truth, whatever that might be?
I stumbled across several quotes the other day, two of which had me rear back for a second. So, I’ll leave you with the following:
None are more hopelessly enslaved than those who falsely believe they are free. [Goethe]
Who controls the food supply controls the people; who controls the energy can control whole continents; who controls money can control the world. [Henry Kissinger]
And here’s one of my own:
Better to vigorously question any official statement than to merely nod and fall back to sleep.