To meet urgent security needs, I approved a request from Secretary Gates to deploy a Marine Expeditionary Brigade later this spring and an Army Stryker Brigade and the enabling forces necessary to support them later this summer. This increase has been requested by General McKiernan and supported by Secretary Gates, the Joint Chiefs and the Commander of Central Command. General McKiernan’s request for these troops is months old
As President, my greatest responsibility is to protect the American people. We are not in Afghanistan to control that country or to dictate its future. We are in Afghanistan to confront a common enemy that threatens the United States, our friends and our allies, and the people of Afghanistan and Pakistan who have suffered the most at the hands of violent extremists. So I want the American people to understand that we have a clear and focused goal: to disrupt, dismantle and defeat al Qaeda in Pakistan and Afghanistan, and to prevent their return to either country in the future. That's the goal that must be achieved.
we will insist that action be taken -- one way or another -- when we have intelligence about high-level terrorist targets.
A CNN/Opinion Research Corp. survey released Tuesday morning indicates that 39 percent of Americans favor the war in Afghanistan, with 58 percent opposed to the mission.
Currently, half of Americans (50%) say military troops should remain in Afghanistan until the situation has stabilized, while 43% favor removing U.S. and NATO troops as soon as possible. In June, 57% favored keeping U.S. and NATO troops in Afghanistan, while 38% favored their removal as soon as possible.
Americans are pessimistic about the prospects of victory in Afghanistan; 59% say they are feeling less confident that the war will come to a successful conclusion. And 51% say they would oppose sending more troops to the conflict.
Our overarching goal remains the same: to disrupt, dismantle, and defeat al Qaeda in Afghanistan and Pakistan, and to prevent its capacity to threaten America and our allies in the future.
This simply repeats the reason we went into Afghanistan in late 2001. That goal was largely met by the spring of 2002. There are almost no al Qaeda currently in Afghanistan and a surge will have no effect on their presence in Pakistan, just as our military presence in Afghanistan has had no effect on that presence anytime in the last 8 years.
“Now, let me begin by disposing of one argument as plainly as I can: We are not going to release anyone if it would endanger our national security”
“If you have authority under the law of war to detain someone” under the Supreme Court’s Hamdi ruling, “that is true irrespective of what happens on the prosecution side.”
“We're still evaluating how we're going to approach the whole issue of interrogations, detentions, and so forth. And obviously we're going to be looking at past practices and I don't believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering”
to determine how we lower costs for everyone, improve quality for everyone, and expand coverage to all Americans
we need a process that is as transparent and inclusive as possible
And so I don't think the best way to fix our health care system is to suddenly completely scrap what everybody is accustomed to and the vast majority of people already have. Rather, what I think we should do is to build on the system that we have and fill some of these gaps.
The problem is, is that we have a employer-based system that has grown up over decades. For us to completely change our system, root and branch, would be hugely disruptive and I think would end up resulting in people having to completely change their doctors, their health care providers, in a way that I'm not prepared to go.
Every one of us, what we've said is, let's find a uniquely American solution because historically here in the United States the majority of people get their health insurance on the job. So let's build on that system that already exists -- because for us to completely change that, it would be too disruptive.
there's a lot of us that feel that the public option that the government is an unfair competitor
I recognize, though, the fear that if a public option is run through Washington, and there are incentives to try to tamp down costs and -- or at least what shows up on the books, and you've got the ability in Washington, apparently, to print money -- that private insurance plans might end up feeling overwhelmed.
So you could still choose a private insurer, but we'd also have a public plan that you could choose from
and on August 20, 2009 in remarks before the Organizing for America national health care forum:
Now, one of the options will be a public option because we think that potentially could be a better deal for consumers. But nobody is going to force you into that option. It will, however, help keep the private insurers honest because if they're charging a lot more -- higher profits, higher overhead, worst deal in terms of insurance -- then a lot of people will say, well, I might as well take advantage of the public option. But it will be the choice of the individual.
This changed rather radically in Obama’s September 9, 2009 speech to a joint session of Congress:
But an additional step we can take to keep insurance companies honest is by making a not-for-profit public option available in the insurance exchange. (Applause.) Now, let me be clear. Let me be clear. It would only be an option for those who don't have insurance.
And as Obama continued, it would cover only about a tenth of those in the original Hacker public plan:
In fact, based on Congressional Budget Office estimates, we believe that less than 5 percent of Americans would sign up.
This raised questions not only about how such a small plan split among 50 state exchanges could keep the larger privates honest but also about whether it would have sufficient market share to negotiate lower prices with health providers. In a word, would such a public option even be viable? These concerns were heightened by moves in both the Congress and the White House. The public option was divorced from the Medicare rating structure meaning that it became even less competitive. It would have to pay more for services and therefore charge higher premiums to its customers. Its startup costs would have to be paid back, again resulting in higher premiums. On top of this, its rollout would be delayed until 2013, ostensibly to make the 10 year cost projections for the overall healthcare plan come in on budget. Any possible expansion of its availability would not come before 2015. It was all a recipe for failure, but that was rather the point. As I said, even at the beginning of the debate Obama’s support of the public plan was less than wholehearted. At a June 23, 2009 press conference, when asked if the public option was non-negotiable, Obama replied,
we are still early in this process, so we have not drawn lines in the sand
He again downplayed it on August 15, 2009 at a townhall in Grand Junction, Colorado,
All I'm saying is, though, that the public option, whether we have it or we don't have it, is not the entirety of health care reform. This is just one sliver of it, one aspect of it.
This remark created quite a storm and Obama backed off of it. On August 20, 2009, he was more positive:
I continue to support a public option, I think it is important… The only thing that we have said -- and this continues to be the truth -- and I mean, sometimes you can fault me maybe for being honest to a fault -- is that the public option is just one component of a broader plan.
However this did not prevent the White House from supporting various efforts, such as co-ops triggers, and opt-outs to kill the public option entirely. The object here was to do it without the Administration taking the blame for it. The whole debate within a debate on the public option was a distraction, much like death panels and teabaggers, but one which both conservatives and the Obama Administration used to paint a completely misleading portrait of how healthcare was paid for in the US. Their thesis was that we had a largely private system, the character of which would be threatened and “disrupted” by government intrusion. Here again we see the confusion, likely deliberate, between the healthcare providers who are mostly private and healthcare payers where the government already plays a leading role. As this Kaiser study found:
Public health expenditures made up about 46% of the health care dollar in 2007, with the remainder split between private and out-of-pocket spending (42% and 12%, respectively).
Nor is it clear that the currently uninsured would benefit from acquiring insurance, except in catastrophic instances. High premiums, deductibles, and copays could leave them with “junk” insurance that they could not use or with higher expenses, for less than catastrophic occurrences, than if they had had no insurance at all. This raises the question of cui bono? to whom the good? The repeal of Glass-Steagall in 2000 allowed insurance companies to gamble with their reserves with the same lack of fiduciary responsibility as their banking cousins, and probably with the same disastrous results. The current debate may be simply a way for insurance companies to repair gutted balance sheets.
Of course, the insurance companies are not the only ones who were concerned about the money more than actual delivery of healthcare. So was the Obama Administration. As he said in his September 9, 2009 speech to Congress,
First, I will not sign a plan that adds one dime to our deficits -- either now or in the future. (Applause.) I will not sign it if it adds one dime to the deficit, now or in the future, period. And to prove that I'm serious, there will be a provision in this plan that requires us to come forward with more spending cuts if the savings we promised don't materialize.
Because the CBO projects such deficits, this guarantees cuts in subsidies and higher costs to those who can least afford it. The Obama approach to cost containment was to strike a series of “deals” with the triad of insurance, drug, and medical companies rather than letting entities like Medicare with its large market share and knowledge of the market negotiate lower prices. Obama announced the first of these deals on May 11, 2009 after meeting with healthcare stakeholders:
And that's why these groups are voluntarily coming together to make an unprecedented commitment. Over the next 10 years -- from 2010 to 2019 -- they are pledging to cut the rate of growth of national health care spending by 1.5 percentage points each year -- an amount that's equal to over $2 trillion. Two trillion dollars.The second was with Big Pharma. As Obama said on June 22, 2009 talking about reducing but not eliminating the infamous doughnut hole in Medicare’s prescription program:
Medicare beneficiaries whose spending falls within this gap will now receive a discount on prescription drugs of at least 50 percent from the negotiated price their plan pays.
To that end, the pharmaceutical industry has committed to reduce its draw on the health care system by $80 billion over the next 10 years as part of overall health care reform.
The third with hospitals was announced by Joe Biden on July 8, 2009:
As part of this agreement, hospitals are committing to contributing $155 billion -- $155 billion -- in Medicare and Medicaid savings over the 10 years to cover health care cost reform -- over the next 10 years.On the government side, Obama fixed his sights on Medicare and Medicaid. As he said on June 24, 2009,
Medicare and Medicaid are the single biggest drivers of the federal deficit and the federal debt -- by a huge margin.
The first of these assertions is disputable. Tax cuts for the wealthy, unnecessary wars, an oversized military, and bailouts for bankers certainly have all made major contributions to budget deficits. With regard to the national debt, Obama is simply wrong. The government owes a lot of money to Social Security for the surpluses which it borrowed and spent. And in his September 9, 2009 speech to Congress,
Reducing the waste and inefficiency in Medicare and Medicaid will pay for most of this plan.
This too is not quite accurate. Obama projects savings of $948 billion over 10 years. $309 billion would come directly from Medicare and Medicaid. $326 billion comes from raising taxes, principally on those making more than $250,000 a year. The remaining $313 billion comes from cuts in Medicare payments, expected savings to hospitals from “covering” the uninsured, and the Big Pharma giveback mentioned above.
At the beginning of this debate, Obama said he wanted to “lower costs for everyone, improve quality for everyone, and expand coverage to all Americans.” Yet it is far from clear that the industries with whom Obama made his deals will honor them or that costs will actually go down. Rescission and denial of coverage for a prior condition may be banned, but quality of care was scarcely touched upon in the debate and where it was it was generally in terms of cost efficiencies, not healthier and better outcomes. Finally, Obamacare will decrease the number of uninsured although estimates vary by how much. A third of those uninsured could be left without coverage. Worsening economic conditions or “deficits” in healthcare budgeting would increase this number.
As of October 2009, Obama’s healthcare reforms look to accomplish none of his objectives but will result in cuts in Medicare and Medicaid and transfers of wealth from the uninsured and from the government through subsidies to the insurance companies. It was a worthy goal but poorly pursued and executed.
On October 20, 2009, at a OFA webcast of a DNC fundraiser in New York, in response to cries of “Single payer” and “Public option” from the audience, Obama responded:
Among Democrats and progressives there are a whole set of views about how we should do health care. But understand that the bill you least like in Congress right now, the one you least like of the five that are out there would provide 29 million Americans health care -- 29 million Americans who don't have it right now would get it. The bill you least like would prevent insurance companies from barring you from getting health insurance because of preexisting conditions. (Applause.) Whatever the bill you least like would set up an exchange so that people right now who are having to try to bargain for health insurance on their own are suddenly part of a pool of millions that forces insurance companies to compete for their business and give them better deals and lower rates. (Applause.)
First, healthcare will not be “provided” but individuals will be mandated to buy insurance or face a substantial penalty. The quality of that insurance will leave many of them paying the premiums but unable to afford to actually use the insurance because of high deductibles and copays. It continues to leave at least 20 million without any coverage. Now some of these are illegal aliens. Well such an exclusion might make sense from a fiscal point of view. From a public health and humanitarian one, it is insanity. The exchanges he is talking about would not come online until 2013 and would not allow the kind of pooled negotiation he is talking about. While pre-existing conditions could no longer be used to deny coverage, there is nothing here to keep insurance companies from continuing their standard practice of denying needed care. Tellingly Obama never mentioned a public option although that was what initiated his comment. It just is not something he supports. Looking past the fact that his statement was filled with errors and omissions, it is also striking that Obama tried to sell his core audience on a “the bill you least like” rather than one they should have been able to wholeheartedly support.
On October 23, 2009, in typical fashion for this Administration, Obama was reported to have told Congressional leaders that he favored a trigger for the public option. This was subsequently denied by the White House and then re-confirmed by other sources. Currently, the public option is not slated to begin in even a limited form until 2013. A trigger would delay startup until 2018. But in reality a trigger is a political gimmick. Triggers in Washington are never pulled and so by attaching one to the public option, the option would be effectively dead. Ostensibly, the White House has moved to support of a trigger in an effort to win the vote of Olympia Snowe (R-ME), the lone potential Republican vote in the Senate for a healthcare plan. But the real objective is to kill the public option and keep the support of the insurance industry. Meanwhile in the Senate, Majority leader Harry Reid (D-NV) was trying to put together 60 votes for a public option which would allow individual states to opt out of it. This is another bad idea meant to appease Red State legislators. Everyone would still be required to buy insurance, the individual mandate, but states, not the individual, would decide if the public option was a choice. This is fundamentally unfair but in keeping with the overall goal of the exercise which is to expand the franchise of insurance companies rather than extend healthcare to all Americans.
The legislative history of the various healthcare bills has been dismal. Obama’s strategy of running to the right and enlisting the Blue Dogs meant that the process had more to do with addressing the “health” of insurance, drug, and medical corporations. But it also allowed an opening for conservative Democrats to join with Republicans to push their social agenda as well. On November 7, 2009, Bart Stupak (D-MI) offered an amendment on the floor to prohibit any funds in the House version of the healthcare bill from being used for abortions except where the life of the mother, rape, and incest were concerned. (Congressional Record H12921). The amendment passed 240-194 with no Republican voting against and with 64 Democrats voting for. The House then voted on the healthcare bill itself. It passed narrowly 220-215 with only one Republican voting for and 39 Democrats voting against. From a tactical point of view the Obama “run to the right” strategy was a success but it did so by producing an impossibly bad bill.
A November 15, 2009 New York Times story undercut one of the major pillars of Obama’s plan to control healthcare costs. BigPharma has been raising drug prices at the fastest rate since 1992. Even as the Consumer Price Index fell 1.3% in the last year, drug manufacturers increased their prices by 9.3%.
In the Senate, Harry Reid the Democratic majority leader eventually put together his own bill rather than using as a base that of Max Baucus (D-MT), the Chairman of the Senate Finance committee who had dragged out the process through most of 2009. The Senate version was notable for its lack of a public option and its retention of anti-choice language similar to the House bill. In addition, the bill was also held up by various Democratic Senators, mostly conservatives, but also Bernie Sanders (D-VT) for last minute special interest add ons. After months trying to recruit even minimal Republican support and at the expense of making the bill far more conservative, corporate friendly, and unpopular with the public, on December 23, 2009, the Senate voted 60-39 to invoke cloture and the next day on December 24, 2009, the Senate bill was passed by the same margin. Following the Christmas holidays, there was an attempt to pressure the House into passing the Senate bill and so finish the process, but the House, both liberals and Blue Dogs, resisted. At this point external events intervened. In the special election to fill Ted Kennedy’s seat in Massachusetts, the Democrats ran an uninspiring status quo corporatist Martha Coakley. Although Massachusetts is a very blue state, many Democrats simply stayed home. On January 19, 2010, Coakley lost to a Republican with teabagger connections, Scott Brown, and with it Senate Democrats lost their 60 vote super-majority. A healthcare bill looked dead. Considering how bad the Senate and House bills were, this was not a bad thing. However the Obama Administration did not give up. On February 22, 2010, it came out with its own proposal which was essentially the Senate bill with a few tweaks. Notably it contained no public option and this underlines the cynicism of Obama’s approach from the beginning, supporting this option in public and doing everything he could to kill it behind the scenes. Healthcare has become very much a no win situation for Obama and the Democrats. They will look either completely ineffective or completely bought, and 2010 is an election year.
After this, reconciliation which had been dismissed as a means of passing a strong healthcare bill, suddenly became the preferred vehicle. The idea was that the House in a leap of faith would pass the Senate bill and then follow this with a reconciliation measure that would make minor adjustments to it. Obama and the House leadership were greatly facilitated in passing this bad bill with the total cave of the entire House Progressive Caucus, including even Dennis Kucinich. Almost all of these had pledged in writing not to support any bill that lacked a public option, and their defection blew most of their credibility. They were not alone in this. Many liberal organizations, unions, and bloggers opted for loyalty to party and President in supporting a bill that only a few short months previously they had excoriated. Not all did, however, and this exposed a long latent schism on the left between liberals who primarily identify as Democrats and progressives who do not. With "progressives" out of the way, the last stumbling block was a group of anti-choice members led by Bart Stupak (D-MI). Their opposition was overcome by Obama signing an Executive Order, much to the consternation and chagrin of the pro-choice caucus, affirming the Hyde amendment (no federal funds for abortions). On a practical level, the EO does not change that much, but the spectacle of a Democratic President publicly endorsing restrictions on a woman's right to choose are, to say the least, extremely damaging. It illustrates once again that Obama and the Democrats simply have no core principles. That is something that all those groups that went out of their way to support a bad bill should keep in mind. What the Democrats did in abandoning women's rights they will have no compunction in doing to any and every other group that makes up their base.
Late Sunday March 21, 2010, the House passed the Senate version 219-212, and moved on to consideration of the reconciliation bill which passed 220-211 a few minutes later. It bears repeating that though this is always referred to as a healthcare bill, it has almost nothing to do with either the health of Americans or providing them care. From the beginning, it has been about nothing but the money, money that would go to insurance companies from forcing tens of millions to buy insurance they could not afford to use, money from everyone else to the insurance industry, BigPharma, and medical companies because no caps were set on premiums and prices, and finally money from Medicare to the government so that Obama and the politicians could have more to spend on their pork and wars. The great healthcare debate has been a deeply dishonest and cynical exercise of a deeply dishonest and cynical age. It demonstrated with the subtlety of a sledgehammer to any who watched that there is not a single person of either party in the House, the Senate, and the White House who is worthy of, or even capable of, real governance. In this healthcare bill, Democrats have chosen to penalize ordinary Americans already marginalized by the healthcare system and reward the very players who not only did the marginalization but have made the system unsustainable. This is not a fluke. They did the very same thing with their bailouts to the financial industry. Nor am I letting the Republicans off the hook. They are just as obsequious to the corporations as Obama and the Democrats. Being out of power, they do not even bother with the kabuki of putting forward an alternate proposal. What the healthcare debate has shown is that we have, not a dysfunctional, but non-functional political process. Our elites spent a year concentrating on this issue to the exclusion of all other major legislation and they produced a bill that will not even minimally address the healthcare needs of Americans or bring an out of control system back into sustainability. It is impossible to describe how massive a failure this has been, especially when we had so many working models to choose from in the industrialized world, or what this bodes for the country's future, not just in healthcare but on all issues.
On March 25, 2010, the Senate passed the reconciliation sidecar to the main healthcare bill 56-43. Before the vote, the Senate Parlementarian ruled that two minor parts concerning Pell grants violated the Byrd rule (i.e. they were without financial impact). These were removed. The measure was then passed and sent back to the House. This showed yet again the essential dishonesty of those involved. Obama and majorities in both the House and the Senate had stated support for a public option. Reconciliation allowed for passage by simple majority in the Senate. Yet even though the measure was being sent back to the House, the public option, which Democrats professed to wanting and which a large majority in the country favored, was not included. Also on March 25, 2010, in Iowa, Obama responded mendaciously to a questioner who asked why the public option was not in the bill, "Because we couldn’t get it through Congress, that’s why." Again Obama and the Democrats enjoy the largest majorities in the Congress, of either party, in 80 years. If they had really wanted it, instead of just saying they wanted it, something to throw out to the rubes, it would have definitely made it into the reconciliation bill. Finally, on March 25, 2010, the House passed the Senate modified reconciliation measure 220-207.
On July 13, 2010, it was announced but virtually uncovered in the media that Liz Fowler would join the Obama Administration as deputy director of the Office of Consumer Information and Oversight at HHS where she would oversee the rules implementing Obama's healthcare plan. Fowler was Max Baucus' chief staffer on healthcare issues from 2001-2005. She then went to work at Wellpoint, the nation's largest private insurer, as a Vice President from 2006-2008. She then returned to work for Baucus, now the Chair of the powerful Senate Finance Committee. Obama's healthcare plan was principally written in this committee and Fowler was its principal author. So now we have this person with this massive conflict of interest not only having written much of Obama's corporate friendly healthcare plan but now writing the rules to implement it.
On September 16, 2010, Census data for 2009 showed the number of uninsured increased by 4.4 million to 50.7 million or 16.7% of the population.
27. Following in the steps of the Bush Administration, Obama’s Justice Department has sought to use the state secrets argument to shut down litigation about the government’s illegal activities in the Binyam Mohamed case (extraordinary rendition), the Electronic Frontier Foundation case (domestic spying) and the al Haramain case (also domestic spying).
A September 22, 2009 story in the NYT first reported that Attorney General Eric Holder will limit the use of the state secrets defense and institute a review process in which the Attorney General must sign off on any such use. The memo released the following day would in theory raise the bar for the invocation of states secret from a reasonable danger to significant harm to national security. It also promised that this argument will not be used to “(i) conceal violations of the law, inefficiency or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States government.” The memo provides a kind of out to this. If states secrets is claimed but the Attorney General concludes “the case raises credible allegations of government wrongdoing, the Department will refer those allegations to the Inspector General of the appropriate department or agency for further investigation.” This is considerably weaker than the DOJ beginning its own investigation.
The timing of the memo is to say the least interesting. Attorney General Holder already had approved the use of the state secrets argument in cases like al Haramain where wrongdoing and violation of the law by the government played large roles. The memo was released the same day as oral arguments in that case were scheduled to be heard. In other words, this seems to be more about process than result. It repackages the Bush policy but does not change its substance.
On September 30, 2009, a notification was filed in the case of Horn v. Huddle suggesting a deal had been struck. The 15 year old case involved a DEA agent Horn who accused the CIA in the person of Huddle of spying on him during a tour in Burma. The government had invoked the state secrets argument to protect the covert status of Huddle and the case went nowhere. It took on new life when it came out that Huddle’s covert identity had been rolled back by Huddle himself among others. The government’s decision to settle appears to be an effort to pre-empt a judicial ruling that would further damage its state secrets position. On September 8, 2010, the supposedly liberal 9th Circuit Court of Appeals in an en banc 6-5 decision ruled in favor of the government's states secret argument. This will be precedent in that circuit but is another strong indication that federal courts are willing to accept the dodge of the state secrets argument and will preclude the government's liability with regard to victims of its torture programs. In an ironic development on September 9, 2010, the Iraqi government agreed to pay $400 million in compensation for mistreatment of US citizens by the regime of Saddam Hussein following his1990 invasion of Kuwait. So while the current government will take responsibility for acts it had no control over, being committed by the previous regime, our own government will not take similar responsibility for its own acts.
28. During his campaign Obama decried Bush’s use of signing statements but on March 11, 2009, Obama attached one to the 2009 Appropriations bill. In particular, he signaled that he and his Administration had no intention of seeking Congressional approval if he chose to spend funds other than as directed by the Congress:
“Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement”
“I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”
"The suppression of reports of wrongdoing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law," Lord Justice Thomas and Mr Justice Lloyd Jones ruled. "Championing the rule of law, not subordinating it, is the cornerstone of democracy."
“I think there's increasing recognition within the Armed Forces that this is a counterproductive strategy. We're spending large sums of money to kick highly qualified gays or lesbians out of our military, some of whom possess specialties like Arab-language capabilities that we desperately need. That doesn't make us more safe.”
Nothing in subsection (b) shall be construed to require that a member of the armed forces be processed for separation from the armed forces when a determination is made in accordance with regulations prescribed by the Secretary of Defense that— …
This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. (Applause.) It's the right thing to do. (Applause.)
lack standing to challenge either Section 2 or Section 3 of DOMA. Plaintiffs lack standing to challenge Section 2, because they nowhere allege that they have actually been denied any rights or benefits under the laws of another State resulting from the refusal of that State to acknowledge their marital status. They lack standing as well to challenge Section 3 of DOMA, because they do not allege that the federal definitions of “marriage” and “spouse” in Section 3 have ever been applied to them for purposes of any federal law.
DOMA is a valid exercise of Congress’s Power under the Full Faith and Credit Clause
DOMA is consistent with Equal Protection and Due Process Principles
DOMA does not impinge upon rights that have been recognized as fundamental
DOMA satisfies rational-basis review DOMA does not violate the Right to Privacy
DOMA cannot be said to infringe upon any “right” under the Ninth Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, “though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state”); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson's Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages “prohibited and void”).
It's a day that marks a historic step towards the changes we seek, but I think we all have to acknowledge this is only one step. Among the steps we have not yet taken is to repeal the Defense of Marriage Act. I believe it’s discriminatory, I think it interferes with states’ rights, and we will work with Congress to overturn it.
With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality,
that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents
"Tougher policies - either militarily or meaningful containment - will be easier to sell internationally and domestically if we have diplomatically tried to resolve our differences with Iran in a serious and credible fashion.”
“One million jobs have been lost because of NAFTA, including nearly 50,000 jobs here in Ohio. And yet, 10 years after NAFTA passed, Sen. Clinton said it was good for America. Well, I don't think NAFTA has been good for America -- and I never have”
“In her campaign for Senate, she said that NAFTA, on balance, had been good for New York and good for America. I disagree with that. I think that it did not have the labor standards and environmental standards that were required in order to not just be good for Wall Street but also be good for Main Street. And if you travel through Youngstown and you travel through communities in my home state of Illinois, you will see entire cities that have been devastated as a consequence of trade agreements that were not adequately structured to make sure that U.S. workers had a fair deal.”
“I will make sure that we renegotiate, in the same way that Senator Clinton talked about. And I think actually Senator Clinton's answer on this one is right. I think we should use the hammer of a potential opt-out as leverage to ensure that we actually get labor and environmental standards that are enforced. And that is not what has been happening so far.”
“And as president, what I want to be is an advocate on behalf of workers.”
[Goolsbee] was frank in saying that the primary campaign has been necessarily domestically focused, particularly in the Midwest, and that much of the rhetoric that may be perceived to be protectionist is more reflective of political maneuvering than policy. On NAFTA, Goolsbee suggested that Obama is less about fundamentally changing the agreement and more in favour of strengthening/clarifying language on labour mobility and environment and trying to establish these as more ‘core’ principles of the agreement.
[Q.] …even though you've given assurances international trade agreements will be respected -- how concerned should they [Canadians] be?
THE PRESIDENT: I don't think they should be too concerned. You know, I think that if you look at history one of the most important things during a worldwide recession of the sort that we're seeing now is that each country does not resort to "beggar thy neighbor" policies, protectionist policies, they can end up further contracting world trade
As I've said before, NAFTA, the basic framework of the agreement has environmental and labor protections as side agreements -- my argument has always been that we might as well incorporate them into the full agreement so that they're fully enforceable.
Obama’s Pastor: God Damn America, U.S. to Blame for 9/11
“The government gives them the drugs, builds bigger prisons, passes a three-strike law and then wants us to sing ‘God Bless America.’ No, no, no, God damn America, that’s in the Bible for killing innocent people,” he said in a 2003 sermon. “God damn America for treating our citizens as less than human. God damn America for as long as she acts like she is God and she is supreme.”
In addition to damning America, he told his congregation on the Sunday after Sept. 11, 2001 that the United States had brought on al Qaeda's attacks because of its own terrorism.
“We bombed Hiroshima, we bombed Nagasaki, and we nuked far more than the thousands in New York and the Pentagon, and we never batted an eye,” Rev. Wright said in a sermon on Sept. 16, 2001. “We have supported state terrorism against the Palestinians and black South Africans, and now we are indignant because the stuff we have done overseas is now brought right back to our own front yards. America's chickens are coming home to roost,” he told his congregation.
The pastor of my church, Rev. Jeremiah Wright, who recently preached his last sermon and is in the process of retiring, has touched off a firestorm over the last few days. He's drawn attention as the result of some inflammatory and appalling remarks he made about our country, our politics, and my political opponents.
Let me say at the outset that I vehemently disagree and strongly condemn the statements that have been the subject of this controversy. I categorically denounce any statement that disparages our great country or serves to divide us from our allies. I also believe that words that degrade individuals have no place in our public dialogue, whether it's on the campaign stump or in the pulpit. In sum, I reject outright the statements by Rev. Wright that are at issue.
I can no more disown him than I can disown the black community. I can no more disown him than I can my white grandmother – a woman who helped raise me, a woman who sacrificed again and again for me, a woman who loves me as much as she loves anything in this world, but a woman who once confessed her fear of black men who passed by her on the street, and who on more than one occasion has uttered racial or ethnic stereotypes that made me cringe.
These people are a part of me. And they are a part of America, this country that I love.
But race is an issue that I believe this nation cannot afford to ignore right now. We would be making the same mistake that Reverend Wright made in his offending sermons about America – to simplify and stereotype and amplify the negative to the point that it distorts reality.
I think they wanted to communicate that I am- unpatriotic, that I am un-American, that I am filled with hate speech, that I have a cult at Trinity United Church of Christ. And, by the way, guess who goes to his church, hint, hint, hint? That's what they wanted to communicate.
It went down very simply. He's a politician, I'm a pastor. We speak to two different audiences. And he says what he has to say as a politician. I say what I have to say as a pastor.
I have known Reverend Wright for almost 20 years. The person I saw yesterday was not the person that I met 20 years ago. His comments were not only divisive and destructive, but I believe that they end up giving comfort to those who prey on hate and I believe that they do not portray accurately the perspective of the black church.
They certainly don't portray accurately my values and beliefs. And if Reverend Wright thinks that that's political posturing, as he put it, then he doesn't know me very well. And based on his remarks yesterday, well, I may not know him as well as I thought, either.
But when he states and then amplifies such ridiculous propositions as the U.S. government somehow being involved in AIDS, when he suggests that Minister Farrakhan somehow represents one of the greatest voices of the 20th and 21st century, when he equates the United States wartime efforts with terrorism, then there are no excuses. They offend me. They rightly offend all Americans. And they should be denounced. And that's what I'm doing very clearly and unequivocally here today.
And I want to be very clear that moving forward, Reverend Wright does not speak for me. He does not speak for our campaign. I cannot prevent him from continuing to make these outrageous remarks.
But what I do want him to be very clear about, as well as all of you and the American people, is that when I say I find these comments appalling, I mean it. It contradicts everything that I'm about and who I am.
By taking a position that defies common sense, the Government forces this Court to address an issue novel to these habeas proceedings: whether a prior relationship between a detainee and al Qaeda (or the Taliban) can be sufficiently vitiated by the passage of time, intervening events, or both, such that the detainee could no longer be considered to be “part of” either organization at the time he was taken into custody. The answer, of course, is yes.
Accordingly, the Government has failed to establish by a preponderance of the evidence that Janko was lawfully detainable as an enemy combatant under the AUMF at the time he was taken into custody, and the Court must, and will, GRANT his petition for a writ of habeas corpus
Almost at the instant Obama was sworn in, www.whitehouse.gov relaunched with a redesign to signal a new era in government. Gone was the staid site of the Bush White House, replaced by a dynamic new site reflective of his tech-savvy successor.
The new design includes more interactive features, a prominent photo gallery displayed across the top of the site, the ability to get e-mail updates, and a White House blog. The site’s “briefing room” also includes places for a weekly video address, slide shows, proclamations, and executive orders as well as news about nominations and appointments.
Like so much else on this hopeful day, there is the lingering question about how many of the Web site’s lofty aspirations will survive the rough work of governing in a complex world and cynical capital
We will publish all non-emergency legislation to the Web site for five days, and allow the public to review and comment before the President signs it.
“A 100 percent auction ensures that all large corporate polluters pay for every ton of emissions they release, rather than giving these emission rights away for free to coal and oil companies.”
3% below 2005 levels in 2012, 20% below 2005 levels in 2020, 42% below 2005 levels in 2030, and 83% below 2005 levels in 2050
Kennedy reasoned that the city of New Haven had not intended to discriminate but that a discriminatory result was allowable under Title VII if it was “job related for the position in question and consistent with business necessity.” Kennedy goes on to say,
We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.
If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate treatment liability.
From almost the beginning, however, conservatives have adopted the language of the civil rights movement and the Act to argue against any form of remediation. Their argument, disingenuous as it is, is that discrimination was outlawed and from here on out the law should be color-blind. Now this would be a reasonable position to take if education, income levels, and other measures were comparable between the majority and minorities, but even in 2009 vast discrepancies remain. One has only to look at the incarceration rate of young black males, for example, to see that our society is far from color-blind. So the residue of discrimination does linger, despite an African American in the White House.
This takes us back to the Ricci case. In the beginning, disparate impacts and treatment were two tests in Title VII which were meant to work together to end discrimination against minorities. What Kennedy and the radical conservatives have done is to make the disparate treatment argument available to the majority and to set the two principles of impacts and treatment against each other, indeed to make disparate treatment the dominant of the two. Further, you have the bizarre situation where entities which seek to be proactive are put in the position of proving that they acted intentionally to create a discriminatory situation. Well if their action was intentional how likely is it that they will move to incuplate themselves? What SCOTUS has done is effectively bar entities, such as local governments, from voluntarily moving to redress racial imbalances which are the product of the residuum of racial discrimination in the larger society. Also if minority firefighters, or any minority group in a similar action, seek to contest a discriminatory outcome, the burden of proof is on them to show that this discrimination would not have occurred except as a specific and intentional act directed against them.
This is all part of an effort by the Court’s radical conservatives to roll back civil rights laws, in general, and Title VII, in particular. We saw this most recently in the June 18, 2009, 5-4 decision in Gross v. FBL, where the ostensible target was the Age Discrimination in Employment law (ADEA) but most of the Court’s ire was directed against the Price Waterhouse case (1989) which had held under Title VII that once discrimination was shown to be involved in a job action the burden of proof shifted from the employee to the employer to prove that the job action would have been taken regardless of the discriminatory component. In Ricci, I see a partial reversal of Price Waterhouse. The burden of proof in a disparate impacts case, the main vehicle for minorities to contest discrimination as it presents itself today, will remain with them throughout.
As for the Court’s wider agenda, this can be seen in the June 28, 2007, 5-4 decision, in Parents Involved in Community Schools v. Seattle School Dist. No. 1 where voluntary programs in Seattle, Washington and Louisville, Kentucky to avoid racial segregation in schools were overturned on the basis that racial classification in school selection violated the equal protection 14th Amendment rights of white children.
With Kennedy onboard, we should expect to see more anti-civil rights decisions and more attacks on Title VII in the future.
In February 2009, the US (with Acting Solicitor General Edwin Kneedler a last minute Bush appointment January 16, 2009 the lead name) filed a brief in this case calling for the summary judgment of the district court to be vacated and that the case be remanded to that court for further consideration of the petitioners’ claim of discriminatory treatment. While the Supreme Court decision went considerably further than the government’s amicus brief, Kennedy appears to have drawn on its ideas in his opinion. The case was argued on April 22, 2009 after the confirmations of Holder and Kagan. The Obama Administration neither modified nor withdrew the original brief.
62. On April 14, 2009, Obama nominated Stephen Preston to replace the CIA’s retiring acting general counsel John Rizzo. Rizzo had been heavily involved in seeking to give legal cover to the CIA’s torture and rendition programs. As this story from the LA Times (on Rizzo but with this interesting aside on Preston notes),
Repeatedly pressed on whether waterboarding constituted torture, Preston replied, "I have not reached that conclusion."
Q. Both the Attorney General and the President have indicated that waterboarding is torture. Is this your professional opinion as well?
A: As I testified at the hearing, I support the President’s and the Attorney General’s conclusion that waterboarding is torture, and the President’s decision that the United States will not engage in the practice going forward. I have not made an independent legal judgment with respect to past conduct under the federal torture statute, but I have no reason to disagree with the conclusion reached by the President and the Attorney General.
63. On April 17, 2009, Obama nominated Robert Litt as general counsel to the Director of National Intelligence. The DNI is the top office in US intelligence. But like Preston do not expect Litt to push for investigation of torture and other crimes under Bush. As he said just after the election on November 13, 2008,
It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries,” Litt said. “It would really spend a lot of the bipartisan capital Obama managed to build up.”
64. The CIA has repeatedly delayed release, persuant to a suit filed by the ACLU under FOIA, of a less redacted version of a May 7, 2004 CIA Inspector General’s report which probed the CIA’s torture programs and their effectiveness. The CIA had originally released a heavily redacted copy of the report to the ACLU on May 27, 2008. The ACLU returned to court. On May 28, 2009, the CIA submitted a schedule to the federal district court of Alvin Hellerstein in New York and promised a June 19, 2009 release. With the ACLU’s agreement this was pushed back first to June 26, 2009 and then July 1, 2009. In response to an ACLU letter to the court on July 1, 2009 after the CIA had failed to produce the promised report for the third time, the Obama Administration argued that it could not now release the CIA IG report until August 31, 2009 when according to its fairly dubious schedule it is supposed to release 318 other documents requested by the ACLU. The government’s rationale is that because the IG report touches on these other documents they must all be reviewed and released together.
Now you have to remember that this is only about a 200 page report. It is 5 years old and covers matters going back 7 years. The original timetable for release which the government keeps walking away from is its own. The government’s most recent argument is a transparent stalling tactic. The 318 documents in question probably fall into a handful of categories. After a review of one or two of these, a protocol could be established for the whole category. The number of problematic documents is likely very small. The government has had both the time and the resources to deal with these. As with the torture photos, the Obama Administration is fighting to delay or prevent disclosure of information about the Bush Administration’s criminality. The most obvious reason for stonewalling is to avoid public pressure, both domestic and international, for investigation and prosecution of those Bush officials who engaged in illegal activities. Another is that Obama, those in his Administration, and Democrats in Congress don’t disagree with Bush’s concept of the unilateral (“unitary”) Presidency, that a President and those whom he appoints can break the law and not be punished for it.
On July 15, 2009, despite the government’s history of delay, judge Hellerstein gave it until August 24, 2009 to release a redacted declassified version of the CIA Inspector General’s report.
It recalls a pre-election exchange between Bill Moyers and William Bacevich:
BILL MOYERS: Do you expect either John McCain or Barack Obama to rein in the "imperial presidency?"
ANDREW BACEVICH: No. I mean, people run for the presidency in order to become imperial presidents. The people who are advising these candidates, the people who aspire to be the next national security advisor, the next secretary of defense, these are people who yearn to exercise those kinds of great powers.
On September 11, 2009, the EPA announced that all 79 pending permits for mountaintop removal in 4 Appalachian states, submitted by the Army Corps of Engineers, would likely violate provisions of the Clean Water Act. This begins a 60 day extended review process.
68. On July 8, 2009, the Obama Administration threatened a veto of the Intelligence Authorization bill if it contained a provision that would require briefing the full Intelligence committees on covert operations rather than the Gang of 8. On the same day, in response to Congressional queries, CIA Director Leon Panetta in closed testimony admitted that the CIA had not informed Congress about significant intelligence activities from 2001 through June 2009. So I guess the key issue here is whether the Obama Administration wants to lie to 8 or 40 members of Congress. It also leaves unaddressed how Congress is supposed to exercise oversight of the intelligence community if even most of the members of its own intelligence committees don’t know what is going on.
69. As the economy continues to tank, Obama has decided to stick with the recommendations of his consistently wrong economics team. He will not consider a second stimulus at this time and has instead taken a wait and see attitude to his too small, poorly designed, poorly directed, and poorly executed first stimulus. On July 11, 2009 in his weekly address Obama said:
“Others believed that the recovery plan should have been even larger, and are already calling for a second recovery plan.
But, as I made clear at the time it was passed, the Recovery Act was not designed to work in four months – it was designed to work over two years. We also knew that it would take some time for the money to get out the door, because we are committed to spending it in a way that is effective and transparent. Crucially, this is a plan that will also accelerate greatly throughout the summer and the fall.”
“I don't think that’s a judgment we need to make now, can't really make it now prudently, responsibly”
On August 14, 2008, Brigadier General Thomas Hartmann, the supposedly neutral adviser to the Convening Authority for the Military Commissions process in Guantanamo was barred from Jawad’s trial for bias in favor of the prosecution by trial judge Colonel Stephen Henley. Also on August 14, 2008, Lieutenant Colonel Diane Zierhoffer, a military psychologist supervising Jawad’s interrogation at Guantanamo, invoked her article 31 rights. Article 31 is the military version of the 5th Amendment protection against self-incrimination. It was Zierhoffer who recommended the techniques, such as prolonged periods of extreme isolation, sleep deprivation (via frequent flier with 112 cell changes in one 13 day period) that drove Jawad to attempt suicide in 2003. And from the beginning, the government knew that aside from his confession extracted under torture, Jawad was almost certainly innocent. On September 24, 2008, the military’s own prosecutor Lieutenant Colonel Darrel Vandeveld quit the case. He cited both a lack of due process and the government’s suppression of exculpatory evidence. Two other men had confessed to the attack and it was likely that Jawad had been drugged at the time of the attack and so incapable of participating in it. On November 19, 2008, Henley ruled to suppress Jawad’s confession.
From there the action moved to a habeas petition in the DC federal district court of judge Ellen Huvelle. On July 16, 2009, Judge Huvelle ruled similarly to suppress all statements made by Jawad including his confession. The government did not oppose the motion to suppress. Huvelle then pointed out to the government lawyers that they had no actual witness who saw Jawad engage in the attack and with no witness and no confession the government case could not go forward. As she said, all the government had to justify holding a young man for 7 years was “people who say that they didn't see what they said they saw.” Huvelle was relentless in her description of the government’s case, calling it “gutted,” “riddled with holes” and “in shambles” and declaring that the government had known this to be so for years. She also decided to move swiftly to a merits hearing on August 5, 2009. It was clear she did not trust the government or its intentions. As she said, “I'm not going to wait to grant a habeas until you gear up a military commission. That's what I'm afraid of. Let him out. Send him back to Afghanistan” (where Afghani courts could try him if they so chose). Judge Huvelle gave the government until July 29, 2009 to inform the court what it was going to do about the Jawad case.
Again it is so important to remember that US federal courts are very sympathetic to the government on national security cases. Their bar for evidence is extremely low. So for a federal district judge to use these terms with federal prosecutors and to bring them up short as Judge Huvelle has done is a real indication of what a total and absolute botch the Jawad case has been. As she said toward the end of the hearing, “I think you'd better go consult real quick with the powers to be[sic], because this is a case that's been screaming to everybody for years.”
On July 24, 2009, the government filed papers with Judge Huvelle in the matter of Jawad's habeas petition regarding his Guantanamo detention stating that Jawad would no longer be considered a detainee but that he would continue to be held for investigation and to face possible charges in a civilian US court. The government says it had, miraculously it would seem, discovered eyewitnesses since its last filing on June 1, 2009 concerning the evidence it held against Jawad. The odds that the government is being honest here are vanishingly small. That it did not produce this evidence for the first 7 years of Jawad’s detention, during his various hearings in Guantanamo or his military commission trial there, but suddenly finds, as a federal judge is about to order his return to Afghanistan, “new” evidence does not so much strain as torture credulity. The government is told after 7 years it has no case and in a week it says it has a new one.
The Obama Administration and Attorney General Holder were supposed to restore credibility to the Justice Department. Their handling, or rather mishandling, of the Jawad case does the reverse. This was never about the law. From Jawad’s indefinite detention in what the government hoped was a legal blackhole, the disregard of his status as a minor, his torture, the sham Combatant Status Review Tribunals (CSRTs), the hopelessly flawed military commission, and now this habeas action, the government has sought to ignore or twist the law for policy and political purposes.
And this continues. The Obama Administration is afraid to return Jawad to Afghanistan because of likely criticism from Republicans, even though Bush released hundreds of these supposedly “worst of the worst” during his time in office. They are perpetuating this dreadful case not because they think Jawad is guilty but because they find it politically embarrassing to release him. They don't want to be blamed for releasing someone accused of trying to kill American troops, not someone who did, mind you, but someone who was simply accused of doing so based on torture and evidence that was beyond flimsy. They are demonstrating that the Justice Department remains unchanged and as much a creature of political decisions and a stranger to the rule of law as ever. We can only hope that at some point the courts say no more. And after 7 years that point should be now.
On July 30, 2009, Judge Huvelle granted Jawad his habeas petition and ordered his release. The government asked for and got a 22 day delay to August 21, 2009 to comply. Congress in one of its more jingoistic moments put a 15 day notification on any detainee transfers and the government requested a week on top of this to prepare the notification. It is not clear if the government will use the delay to go forward with a case in the federal courts against Jawad.
On August 24, 2009, Jawad was returned to Kabul, Afghanistan. One of Jawad’s appointed attorneys Marine Major Eric Montalvo traveled to Afghanistan at the expense of the ACLU and Human Rights Watch because the military refused to allow him to be there to witness the release of his client or even inform him when his client would be released. It was a good thing he was there. Jawad was to be sent directly to prison. Montalvo was able to intercede on his client’s behalf with Afghanistan’s Attorney General. After a meeting between Afghanistan’s President Hamid Karzai and Jawad, Jawad was released to the care of his uncle. This was a shameful episode in our nation’s jurisprudence and the military turning Jawad over to Afghan authorities with only the clothes he was wearing acted disgracefully until the end.
what we have to focus on is getting things right in the future, as opposed looking at what we got wrong in the past
I share the President's conviction that as a nation, we must, to the extent possible, look forward and not backward when it comes to issues such as these.
the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel [i.e. the infamous Yoo and Bybee torture memos] regarding the interrogation of detainees
Bernanke’s is best known for backing Alan Greenspan’s easy credit policies that fueled the $8 trillion housing bubble. Bernanke managed not to see this bubble until it burst on August 9, 2007. After a brief intervention led by foreign central banks, he then did almost nothing to forestall its effects believing that the fallout was manageable and that markets would be able to handle it on their own with only occasional, limited involvement of the Fed. On the weekend of September 13-14, 2008, he worked with Henry Paulson, former CEO and chairman of the board of Goldman, and Lloyd Blankfein, the current CEO of Goldman, to save insurance giant AIG. Goldman had a heavy exposure to AIG, and its bailout essentially saved Goldman. Bernanke also forced Bank of America to buy the investment bank Merrill Lynch under dubious conditions which Bernanke later lied about.
But Bernanke’s epic fail came when he and Paulson decided to let Lehman go into uncontrolled bankruptcy. Neither he nor Paulson thought to ask the simplest most basic question before proceeding with this plan: who were Lehman’s bondholders and how would a Lehman collapse affect them? As it turned out, Lehman’s creditors included money markets, the vast engines of liquidity in the shadow banking system. When Bernanke let Lehman go bust on September 15, 2008, these froze their lending activities in reaction to being burned by the Lehman collapse, and the result was the financial meltdown. Since then Bernanke has been pumping trillions into an unreformed and unreformable financial system variously called bubblenomics, crony capitalism, Ponzi economics, and casino capitalism. In doing so, he has taken on large amounts of banks’ crap assets, burned through the Fed’s usual monetarist approaches to no real avail, pretended that if the banks did not admit they were insolvent they were solvent, left unaddressed all the fundamental problems that underlay the housing bubble and the subsequent meltdown, and sought to reflate bubbles rather than stimulate the wider real economy. Despite all this, Bernanke is credited by many otherwise respectable economists with “saving” the financial system his decisions and actions did so much to destroy. Apparently in this Administration failure, even massive failure, is no bar to praise and re-appointment. It is not just our financial system that is broken and bankrupt but, as Obama's choosing of Bernanke shows, our political elites are as well.
On January 28, 2010, the Senate reconfirmed Bernanke. The cloture vote was 77-23 and the confirmation vote was 70-30. Only 6 member of the Democratic caucus voted against cloture (the real vote to deny Bernanke: Begich (D-AK), Cantwell (D-WA), Feingold (D-WI), Merkley (D-OR), Sanders (I-VT), Specter (D-PA. That Senate Majority leader was able to force a vote on Bernanke’s nomination demonstrates how when the Administration really wants a vote on an issue procedural obstacles, which are constantly being said to be insuperable. are suddenly brushed aside. The vote came one day after Obama’s first State of the Union address in which he stressed the theme of jobs, jobs, jobs. Bernanke’s reconfirmation which Obama strongly backed is another example of how Obama’s actions continue to speak louder than his words.
This means ending the practices of shipping away prisoners in the dead of night to be tortured in far-off countries, of detaining thousands without charge or trial, of maintaining a network of secret prisons to jail people beyond the reach of the law.
August 27, 2009, Stars and Stripes reported that the Pentagon, in an effort to shape coverage of the Afghanistan war, had paid a private contractor the Rendon Group $1.5 million to screen reporters to be embedded with US forces. On August 31, 2009, the command in Afghanistan announced it was terminating the Rendon contract.
With the August 3 filing the SEC and BAC proposed a final consent judgment to Jed Rakoff, a federal judge for the Southern District of New York. In it, BAC without admitting or denying the accusations, was enjoined from making future false statements in proxy sollicitations. It further agreed to pay a fine to the SEC of $33 million. On September 14, 2009, after having requested and received supplementary submissions from both sides, Judge Rakoff rejected the agreement and excoriated both BAC and the SEC. He noted that the SEC had failed to go after those at BAC or its lawyers who were responsible for the lie. Instead it revictimized BAC shareholders (and US taxpayers; BAC has received a bailout of some $40 billion from the US government) by requiring them to pay, on top of the $5.8 billion they had already lost as a result of the lie, a further $33 million as a penalty. Not only were the wrong people paying the fine but the fine was not commensurate with the multi-billion dollar size of the lie. Judge Rakoff also observed that BAC’s undertaking not to lie in the future on proxy statements was meaningless. Since the company had not admitted to lying in the present case, there was no measure to determine contempt of the court’s order in the future. In other words, if BAC had admitted to doing nothing wrong, how could it be enjoined from doing what it had done again? The admission of a wrong act is necessary to the court so it can point to that act and say, “Don’t do that again.” In the absence of such an admission, there is nothing for the court to point to.
In closing, Judge Rakoff wrote that the consent judgment he had vetoed
“suggests a rather cynical relationship between the parties: the S.E.C. gets to claim that it is exposing wrongdoing on the part of the Bank of America in a high-profile merger; the Bank’s management gets to claim that they have been coerced into an onerous settlement by overzealous regulators. And all this is done at the expense, not only of the shareholders, but also of the truth.”
What makes Judge Rakoff’s decision all the more telling is that, also on September 14, 2009, Obama was giving a speech in New York on financial reform in which he called for greater regulation of financial institutions. The speech was a restatement of Obama’s previous weak proposals for reform, a weakness which was underscored by Judge Rakoff’s decision on the same day in the same city.
On February 22, 2010, Judge Rakoff accepted a $150 million settlement proffered by BAC and the SEC. His acceptance hardly amounted to a ringing endorsement of the deal: “While better than nothing, this is half-baked justice at best.”
On the surface the invocation of Eisentrager has merit but the government’s further remarks make clear that it sees the weakness in the analogy. It makes the ad hoc argument that it would be onerous for the US government in a war zone to prove that prisoners had been detained in Afghanistan and that such proof could give intelligence to our enemies. This is simply false on its face. The military files reports about its operations. Afghan insurgents and al Qaeda would almost certainly have a very good idea where their soldiers and operatives had been captured. There is no evidence that such information coming out long afterwards would compromise anything. Finally, federal courts, especially those in the DC Circuit are used to keeping information deemed sensitive secret. There is no reason that such secrecy should not hold here.
The government also argued that extending habeas protections to non-Afghans but not Afghans it held would create friction with the Afghan government. It is not clear why this would be so. It is not clear why the US military holding Afghans indefinitely in Afghanistan would not be an even bigger source of friction. Nor is it clear that the Afghan government has any interest in non-Afghan detainees whether they were captured in Afghanistan or elsewhere. So the government’s point of friction seems largely contrived.
Finally, the government argued that it had review panels, that look a lot like the heavily criticized Guantanamo Combat Status Review Tribunals (CSRTs) that substituted for habeas proceedings. As with the CSRTs, no actual lawyers would be involved.
In effect, what the Obama Administration is doing is asking the federal courts to accept a legal fiction in order to construct a new Guantanamo at Bagram outside the purview of US courts. Indeed the Administration is hiding behind Afghanistan’s quality as a war zone to tell the courts to butt out.
"When it comes to military facilities, unlike Guantanamo, that are truly abroad-- particularly those halfway across the globe in an active war zone--courts in the United States exceed their role by second-guessing the political branches about the reach of habeas jurisdiction. And courts particularly overstep institutional bounds when, in direct conflict with Congress’ judgment, they selectively provide habeas rights based on the detainees’ nationality or locus of capture."
Disappointingly, the Obama Administration has not rejected Bush's extra-legal, anti-Constitutional formulation of the War on Terror and has instead bought into its central premise that there is an extra-judicial space between the Geneva Conventions and the Constitution and US law where only the President rules. (see also item 154)
In a February 26, 2010 habeas petition filed by the ACLU in DC District Court on behalf of two brothers Samiullah Jalatzai and Sibghatullah Jalatzai detained at Bagram, the government's new Detainee Review Boards (successors to the CSRTs) are described in detail:
48. On September 14, 2009, the Obama administration released guidelines that mandated a new administrative process for determining whether people could be imprisoned indefinitely at Bagram. Implementation of the new procedures reportedly began in December 2009.
49. Even under the new process, Bagram prisoners are not permitted any access to lawyers. Bagram prisoners are instead assigned a “personal representative” – a member of the U.S. military responsible to the U.S. chain of command, who is not a lawyer, who has no duty of confidentiality to the prisoner, who has no ethical duty to zealously advocate on the prisoners’ behalf, and who is assigned to detainees by the military convening authority.
50. Bagram prisoners also are not permitted any access to a judge or an independent and impartial tribunal. Prisoners’ status determinations are made by Detainee Review Boards (“DRBs”) comprised of three military officers responsible to the U.S. chain of command. These officers need not be lawyers. The officers are appointed, and can be removed at will by, the military convening authority. They have no protection against command influence or protections against retaliation for DRB rulings.
51. Bagram prisoners are not entitled to see most of the evidence the U.S. military is relying upon to justify their detention. Prisoners must receive notice of the basis for their detention and an unclassified summary of the facts that support the basis for their detention, but are denied access to classified and other evidence in the government’s possession.
52. DRBs may rely on evidence obtained through torture or coercion.
53. The military has no obligation to disclose relevant exculpatory information to the detainee or to his personal representative.
54. A Bagram prisoner’s ability to present witnesses or documentary evidence is left to the discretion of the DRB. Prisoners may present witnesses or evidence only if the military panel deems the witnesses or evidence to be “reasonably available.”
55. Bagram prisoners can be excluded from their own hearings if “operational” concerns arise as to their presence.
56. DRB determinations cannot be appealed to any court or to any higher, independent and impartial administrative body.
As said above, this does not accord with either due process under the Constitution or Geneva. Named in the petition are Barack Obama and Robert Gates. Also named is Mark Martins in his capacity as Acting Commander of Detention Operations at Bagram. Martins is noteworthy because he was the Executive Secretary to the task force set up to review detainee procedures under Obama's executive order 13493 of January 22, 2009. In other words, Martins was instrumental in writing the kangaroo court guidelines he currently implements, showing that the Obama Administration's disregard for human rights and basic legal protections is not a bug but a feature.
78. On September 14, 2009, Obama’s Department of Homeland Security announced that it was making available to fusion centers classified intelligence in Pentagon databases. Fusion centers are highly dangerous and fundamentally at odds with any concept of privacy or democracy. They grew up in the Bush era as a response to the 9/11 attacks and the fears those engendered. They were supposed to be a place where local, state, and federal authorities could pool information, both public and private, to discover and counter terrorist threats. But they quickly grew beyond that and were used in regular law enforcement. The problems are many and inherent. The amount of information on any individual can be vast and vary greatly in quality and accuracy. Yet it is available to some 800,000 law enforcement personnel in the country. Information that law enforcement officers may be restricted from seeking in their jurisdiction may be freely available through the fusion center. There are no apparent restrictions on its use. Conceivably, the policeman giving you a traffic ticket could access your bank and medical files or find out what groceries you just bought. The current decision by giving the military a greater role in civilian law enforcement is a further erosion of posse comitatus. Fusion centers are not benign institutions but essential agents of a surveillance state. This is another example where the Obama Administration, instead of curtailing the excesses of the Bush years, seems bent on expanding them.
An October 8, 2009 summary of the conference report for the Defense Authorization bill indicates that $9.3 billion will go to Obama’s “scaled down” missile defense initiative. This indicates that while the structure of the program has changed, its funding levels have not. They are actually higher than under Bush.
Under the administration's language, a reporter could be compelled to reveal his or her sources if public disclosure of the sources' information "caused or [was]reasonably likely to cause significant and articulable harm to national security." In such cases, there would not be a "balancing test," in which a judge weighs the importance of the public having the information against the damage it could cause national security. The government would only have to show the judge, probably in a closed session, that the information was protected and "reasonably likely" to cause the damage.
Even in civil cases without national security or criminal connections, there would be no balancing of interests. The Obama proposal would allow anyone to force a reporter’s disclosure of sources if it could be shown that there were “reasonable grounds to believe that the information sought is essential to the resolution of the matter.”
The effective result would be that the government could pursue those who leaked embarrassing information about dubious and illegal programs and actions and that those with deep pockets, like corporations, could do the same in civil litigation.
The first of these was the lone wolf provision which allowed surveillance of a non-citizen target not associated with an international terrorist group but who was thought to be involved in international terrorism. Per the government, this section of the Patriot Act has never been invoked. After 8 years of the “war on terror,” this fact raises the question of why it should exist in law at all. Clearly, regular criminal investigative techniques and other powers through FISA have proved sufficient.
The second was the roving wiretap. This allowed the government to wiretap an individual that frequently changed communication devices or tap an address through which suspected terrorists circulated. The concern was that the two might be combined allowing the tapping of an unspecified individual at an unspecified location or locations. This would essentially be an open warrant allowing the government to wiretap anyone anywhere. In 2005, this was amended to require a description to the FISA court of the target, which still left the provision too unspecific.
The third provision is the 215 order, referring to section 215 of the Patriot Act. It requires the production of “any tangible thing” related to the target. This could be any information held by anyone regarding the target or anyone having contact with him/her. The information could be, for example, from banks, libraries, medical records, or telephones. The telephone data usually came from pen registers which caught the numbers of all outgoing calls or track and traces which did the same for incoming ones. From these, contacts could be determined. The fear here was that such searches could cast too broad a net and result in the surveillance of many innocent people, in contravention of Constitutional guarantees.
Modifications of these sections of the Patriot Act were being considered when in September 2009 Najibullah Zazi, an Afghan living in the US, was arrested in a bombmaking plot. Attorney General Holder and Senators Dianne Feinstein (D-CA) and Patrick Leahy (D-VT) moved to keep or toughen them in light of the Zazi investigation. This was a gratuitous move since ongoing investigations could have been grandfathered into the legislative modifications, even though in the Zazi case it was not clear how much the investigation had actually depended on or used them.
On February 24, 2010, the Senate in a voice vote and without debate passed an extension of the Patriot Act. In doing so, Democrats turned their back on changes that would have among other things put restrictions on the widespread FBI abuse of National Security Letters (NSLs), increased privacy protections on library records, and made gag orders easier to challenge. On February 24, 2010, the Senate in a voice vote and without debate passed an extension of the Patriot Act. In doing so, Democrats turned their back on changes that would have among other things put restrictions on the widespread FBI abuse of National Security Letters (NSLs), increased privacy protections on library records, and made gag orders easier to challenge. Harry Reid did this by taking the Medicare Physician Payment Reform Act from the House HR 3961, stripping out its content, and substituting via the amendment SA 3331 the Patriot Act extensions (to February 28, 2011) in its place. The House then passed it (roll call 67) the next day on February 25, 2010 with bipartisan backing 315-97: 162 Democrats and 153 Republicans voting for; 87 Democrats and 10 Republicans voting against.
Since 2002, the agency has been conducting some warrantless eavesdropping on people in the United States who are linked, even if indirectly, to suspected terrorists through the chain of phone numbers and e-mail addresses, according to several officials who know of the operation.
In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.
I want to make clear to the people listening that this program is limited in nature to those that are known al Qaeda ties and/or affiliates
45. Are any communications between attorneys and their clients or doctors and patients being captured?
The Terrorist Surveillance Program targets communications for interception only when one party is outside the United States and there is probable cause to believe that at least one party is a member or agent of al Qaeda or an affiliated terrorist organization. Although the Program does not specifically target the communications of attorneys or physicians, calls involving such persons would not be categorically excluded from interception if they met these criteria.
The case was filed on May17, 2007 in the Southern District of New York. The government responded using the Glomar defense, (named after the famous spy ship the Glomar Explorer), neither confirming nor denying on the grounds of national security that attorney-client conversations had been targeted. On June 25, 2008, Judge Denise Cotes acceptedthe government’s partial motion for summary judgment. The plaintiffs appealed to the 2nd Circuit. They contend that any NSA interception of attorney-client communication is illegal and argued that neither FOIA nor FISA allow their exemptions to be used to hide illegal acts by the government. They noted too that Bush himself had discussed the TSP and so a Glomar response made no sense in the context. They emphasized the unConstitutionality of the warrantless surveillance, that it was an unreasonable search and seizure under the 4th Amendment, that the threat or fact of surveillance chills attorney-client communication and violates the attorney’s freedom of speech under the First Amendment, that it interferes with their 5th Amendment right to practice their profession (depriving them of their “life and liberty” without due process), and that the Executive’s surveillance of attorney-client communication violates separation of powers. This last is likely to be attractive to federal courts, including and especially the Supreme Court which has not shown great interest in the rights of individuals but is zealous in its defense of its own prerogatives.
What this case demonstrates is that, in the face of FOIA, FISA, and long established practice, the Obama Administration continues to defend and seek to hide acts by the Bush Administration which are illegal on their face.
found evidence that both Israeli forces and Palestinian militants committed serious war crimes and breaches of humanitarian law, which may amount to crimes against humanity
The mission finds that the conduct of the Israeli armed forces constitute grave breaches of the Fourth Geneva Convention in respect of wilful killings and wilfully causing great suffering to protected persons and as such give rise to individual criminal responsibility,” the report’s executive summary said. “It also finds that the direct targeting and arbitrary killing of Palestinian civilians is a violation of the right to life.”
the application of disproportionate force and the causing of great damage and destruction to civilian property and infrastructure, and suffering to civilian populations.
On October 2, 2009, Haaretz reported that the Palestinian Authority under pressure from the Obama Administration had withdrawn a draft resolution condemning Israel effectively deferring the adoption of the report and any action stemming from it until March 2010 and beyond. The Obama Administration argued that the peace process came first. This might be defensible if there was any sign of a peace process now or in the near future, but there is not. Israel has a radical right wing government, much further to the right than even the Kadima-Labor government that carried out the assault on Gaza. Obama’s efforts and those of his envoys to steer Israel to the peace table have been effectively rebuffed. The practical result is that the Obama Administration was running interference for the Israelis at the UN as American Administrations have done for the last 30 years, and Obama was doing it at the expense of the truth, justice for the victims, and our standing in the world.
In typical fashion, on November 3, 2009, the House passed a sycophantic resolution 344-36 condeming the Goldstone report. Mindless support for Israel does neither state any good. On November 5, 2009, Palestinian leader Mahmoud Abbas he would not stand for re-election in January 2010. Abbas had initially been pressured by the Obama Administration into seeking a delay of the presentation of the Goldstone report, a move which he reversed in the face of a considerable Palestinian backlash which severely damaged his support. While this could be a political ploy by Abbas, the upshot of the White House’s machinations has been to undercut and possibly eliminate their preferred Palestinian leader.
88. The Obama Administration has been unduly slow in filling federal judgeships and has allowed Republicans to block the few nominations sent to the Senate. This is an important point because Republicans have stacked the federal judiciary with arch-conservatives. As of October 2009, Obama had sent up only 23 names for some 90 vacancies. Of these, only 3 had been confirmed due to Obama and the Democrats’ toleration for Republican obstructionism. At the same point in his Administration, George Bush had sent 95 nominees to the Senate for confirmation. There is also the question of the ideology of Obama’s choices. Replacing radical conservatives with center-right selections will not redress the balance in the nation’s federal courts. Rather than a mix of liberal and conservative judges, we will have a judiciary made up of conservative and more conservative judges. This an example of the “ratchet” effect which continues to move our elites to the right and away from where most Americans are.
89. State budget deficits are a disaster that is unfolding before our eyes. Falling house prices and declines in sales and income taxes have led to a precipitous fall in budget revenues. The states received some $49 billion in assistance from the Obama stimulus in the form of aid and for infrastructure projects. Even so they have had $63 billion in shortfalls to June 30, 2009 (the beginning of most of their fiscal years) and a further $26 billion in the first two months of the new fiscal year. In other words, through August 2009, states needed 2.8 times the money they received from the Obama stimulus to balance their budgets. While trillions have gone unproductively to banks, state finances are falling apart. This is another key deteriorating fundamental of the real economy that the Obama Administration is failing to adequately address.
90. On October 20, 2009, the Supreme Court agreed to hear the case Kiyemba v. Obama. This is another case where the Obama Administration is trying to perpetuate the injustices of the Bush years. It involves the 17 Uighurs who were detained in Afghanistan in 2001 and sent to Guantanamo where they remained for 7 years. They were never designated enemy combatants and by 2003 it was known that they were innocent victims, simply in the wrong place at the wrong time.. They were however a political embarrassment. It was considered likely that they would be tortured if they were returned to their native China which actively suppresses ethnic minorities like the Uighurs. So they were held rather than offending the Chinese by releasing them. Solicitor General had petitioned the Court not to hear the appeal. The crux of the case is that a federal judge Ricardo Urbina ordered the Uighurs released into the US since they could not return home and they were innocent. But the DC Court of Appeals ruled in a 2-1 decision:
It is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the government to exclude a given alien
4 Uighurs have already gone to Bermuda; six more to Palau with an invitation to six of the seven remaining Uighur detainees. The 17th Uighur, Arkin Mahmud, has mental problems which his prolonged detention at Guantanamo either caused or exacerbated, and his brother, another of the Uighur detainees has refused to leave without him. The Obama Administration is busily trying to get rid of the Uighurs to moot the case.
On February 3, 2010, Switzerland agreed to take the last two Uighurs. It is unclear what the quid pro quo was for this but there certainly was one. On February 6, 2010, Solicitor General Elena Kagan wrote the Court informing it of this development and tellingly added, “Accordingly, the Court may wish to dismiss the writ of certiorari as improvidently granted.” This is different from mooting the case. If the case were mooted, it would erase the decisions of the lower courts, meaning that the government would have to start over if this issue was raised again, as it likely will be, in the future. If, however, SCOTUS accepted that certiorari was improvidently granted, those decisions would stand and would leave the government with decisions still on the books and a higher level of authority to deny judicially mandated entrance of aliens. In other words, Kagan and the government are not acting out of humanitarian concerns.
On March 1, 2010, the Supreme Court decided to kick this much kicked can down the road, choosing a middle ground between the government’s push for the Court to de facto ratify its position and defense counsel’s desire for a conclusive decision. SCOTUS vacated the judgment and sent the case back to the Court of Appeals for the District of Columbia to re-assess the situation and its findings given developments in the resettlement of the Uighurs.
91. On October 20, 2009, the Obama Administration gave conditional approval for Shell to drill in the Beaufort Sea off the north coast of Alaska from July-October 2010. This is a pro-drilling move that not even Bush was able to accomplish. Like most extreme environments, the Beaufort poses technical challenges to drilling and has a delicate ecosystem which drilling could do great harm to. As has already been seen at Prudhoe Bay, sloppiness and poor maintenance can result in a significant oil spill.
On March 31, 2010, the Obama Administration in an anti-environmental move of vast proportions opened up 167 million acres of the Atlantic coast from Delaware to mid-Florida for oil and gas exploration. Part of the eastern Gulf of Mexico and another 130 million acres off the North Coast of Alaska would also be opened up. Bristol Bay off Alaska's west coast and the entire West Coast of the continental US would be put off limits for now. This looks like an adoption by Obama of yet another Republican party plank, that of "Drill, baby, drill." It will not be available for many years, will have little impact on prices or our dependence on foreign produced oil, and it flies in the face of what is needed to counter global warming. In typical Obama fashion it angers his base and gives Republicans almost everything they want without satisfying them or gaining their support.
In light of this, embarrassingly, on the evening of April 20, 2010, the oil rig Deepwater Horizon under contract to BP caught fire following an explosion in the Gulf of Mexico 52 miles southeast of Venice, Louisiana killing eleven. The rig sank 36 hours later on April 22, 2010. Initial estimates put oil spilling from the rig's well at 1,000 barrels/day. This was soon increased to 5,000 bbls/day. The well was leaking in at least 3 places and its shutoff valve wasn't working. Halliburton was the contractor responsible for cementing the drill hole and had recognized difficulties with this operation in deep water. For its part, BP has a long and troubled history on safety issues and cutting corners, including a March 23, 2005 refinery fire in Texas City, Texas which killed 15 and a 200,000 gallon pipeline leak in Prudhoe Bay, Alaska discovered March 5, 2006 (mentioned above). It was also fined for violations relating to a near blowout on another oil rig the Ocean King in November 2002.
The spill which may not be stopped for weeks or months threatened significant environmental damage to wetlands and beaches from Louisiana to Florida. It also threatened the livelihoods of fishermen and those employed by the tourist industry in the region. The Obama Administration has said that BP is responsible for costs to clean up the spill but its liability with regard to the environment and those whom it has harmed may be limited.
On April 30, 2010, Obama tried to have it both ways, stopping new offshore drilling for now but not rescinding his recent plan to open up large stretches of water in the Gulf of Mexico and off the East Coast to oil exploration. In other words, the giveaway to the oil industry is still on. It has only been delayed until the public outcry and bad press have died down.
A May 5, 2010 Washington Post story relates that on April 6, 2009 the Obama Administration's Mineral Management Service (MMS) granted BP's Deepwater Horizon project a "categorical exclusion" from an environmental assessment under the National Environmental Policy Act (NEPA). A serious spill like the one that occurred was not even considered. The MMS was scandal plagued under Bush, and the Obama Administration rather than moving aggressively to clean it up (and similar agencies like the Mine Safety and Health Administration (MHSA), for example) has taken a business as usual, i.e. pro-business, stance.
Obama's moratorium looks increasingly like a PR gimmick. A May 7, 2010 McClatchy story reports that, in the 17 days since the Deepwater Horizon blew up on April 20, 2010, the Obama Administration has given out 27 exemptions from doing environmental analyses on oil drilling in the Gulf of Mexico.
On May 13, 2010, it was reported that, under Bush continuing into the Obama Administration, the MMS routinely allowed oil companies to drill offshore without getting necessary permits from NOAA assessing threats to endangered marine mammals. Further, the agency overruled its own scientists and engineers when their concerns over safety and environmental issues conflicted with drilling.
On May 14, 2010, ABC reported that a BP film in possession of the White House showing oil spewing from an underwater pipe in the Gulf was withheld from the public for 3 weeks. It is hard to see this as anything other than media management for BP's benefit. If the tape had been made available from the beginning, public outrage would have been even larger than it is. And it would have been obvious that much more than 1,000 barrels of oil a day then 5,000 barrels of oil were entering the Gulf. Current estimates place the amount at somewhere around 25,000 barrels a day (1 million gallons) with high ends estimates at 70,000 barrels (3 million gallons). BP and the government should have data about the diameter of the pipe, the velocity of the exiting flow, and the composition of the oil-gas-water mixture. From these an accurate estimate could be made of the amount of oil that has leaked. The question is why this has not been done, or if done, why the results have not been made public.
On May 20, 2010, the EPA finally ordered BP to switch the dispersant Corexit the company was using. There have been criticisms that Corexit is both less effective and more toxic than alternatives. BP had pumped some 700,000 gallons of it to date. A month on and in response to rising criticism to the dearth of information released by BP on the spill, the Administration belatedly called on it to release materials related to the spill. Such calls are meant to direct attention away from the Administration's incredibly lackadaisical attitude to what most of the country looks on as a national emergency. Indeed for this reason some have dubbed it Obama's Katrina.
On May 22, 2010, continuing the complete arrogance it has shown from the beginning of this disaster, BP rejected the EPA order saying that it could not find an alternative to Corexit (there are several) and so would continue using it.
On May 23, 2010, the New York Times reported that since the Deepwater Horizon blew up the MMS had handed out 19 environmental waivers and 17 permits for offshore drilling; these included 5 environmental waivers and 7 drilling permits since Obama announced his moratorium. Of these various waivers, 6 are for projects in waters deeper than those where the Deepwater Horizon blew up, some in waters nearly twice as deep. Even a month on in a major environmental disaster, the Administration's attitude remains one of business as usual.
On May 26, 2010, BP began a top kill: pumping in heavy drill mud, in an attempt to fill in the well and stop the spill. On May 27,2010, the USGS made an initial estimate that 12,000-19,000 bbls/day had spilled from the well. Also on May 27, 2010, Obama fired Elizabeth Birnbaum. Birnbaum had headed the MMS since July 2009. The firing was probably deserved, but its timing was clearly to deflect attention away from Obama and Interior Secretary Ken Salazar's pro-drilling policies. Finally, on the same day, Obama announced an extension of his partial moratorium on offshore drilling. This would result in the cancellation of lease sales in the Western Gulf of Mexico and off the Virginia coast and exploratory drilling off the coast of Alaska in the Beaufort and Chukchi Seas.
On May 29, 2010, the Saturday of the Memorial Day weekend, BP announced that its top kill attempt had failed. On June 4, 2010, having cut the riser where it entered the BOP, BP placed a revised tophat called the lower marine riser package (LMRP). It was not immediately clear how much this would decrease the oil flowing into the Gulf.
[The Deep Horizon oil spill has been a textbook case of government agencies kowtowing to the PR and legal needs of BP the corporation responsible for the largest oil spill in US history. It began with the MMS waivers. Then after the rig blew up, the Coast Guard consistently lowballed the size of the spill for weeks. Characterizing the spill as smaller than it was potentially reduced BP's financial liability. The EPA was AWOL for weeks then finally ordered BP to find another dispersant other than Corexit which was more toxic and less effective than the alternatives. BP said no, and the EPA folded. NOAA did no initial testing then under pressure in the week of May 10 some results were reported suggesting that there were large plumes of dispersed oil underwater in the Gulf. Rather than publish the information the director of NOAA Jane Lubchenco has suppressed it and even gone so far to try to gag researchers on NOAA vessels in the Gulf. As for OSHA, there have been reports of oil cleaning crews becoming sick from fumes from oil and/or the Corexit dispersant. It has decided that those working on the cleanup don't need breathing protection. A June 9, 2010 NYT story documents how the government and BP have been restricting media access to areas affected by the spill. Reports of this first surfaced when a CBS crew was threatened with arrest by BP employees for filming on a public beach. The Times story recounts how Senator Ben Nelson was told by the Department of Homeland Security that he could not take journalists with him aboard a Coast Guard vessel for a coastal inspection and how BP officials working with the FAA nixed a flight carrying a photographer from the New Orleans Times-Picayune who wished to take pictures of the oil spill at sea. There have also been numerous reports of BP contractors interfering with news crews and even calling local law enforcement on them. And then there is the clause BP inserted in the contracts of those it hired for the clean up threatening them with termination if they talk to the press. If you look past the speeches, the Obama Adminstration is doing everything it can to protect BP and keep the magnitude of the disaster in the Gulf from the American people. It isn't working, but that's not for want of them trying.]
On June 4, 2010, BP split off its Gulf of Mexico operations into a subsidiary headed by a US citizen Bob Dudley. It is uncertain what the legal ramifications of this will be. From a PR point of view, it was meant to remove BP's CEO Tony Hayward from the scene. He was the public face of BP, and it was not a very pretty or truthful face. Words like dishonest, insensitive, egocentric, amoral sociopath come to mind to describe him. This was true even before the spill. In May 2009, in a speech to the Stanford Business School Hayward famously remarked that BP's problem was that "We had too many people that were working to save the world." As the biggest environmental disaster in US history unfolds, we can certainly attest that Hayward managed to get rid of all those at BP. After the oil spill, he lamented that he wanted his life back. Apparently the Gulf disaster was taking away too much time that he could have more profitably used to loot and pollute other places around the world. He said that the environmental damage from the spill was likely to be very, very modest, that the toxic oil dispersant BP was using was no problem because the volume of water in the Gulf was so large. After evidence emerged that much of the oil was in "plumes" beneath the surface, he denied that the plumes existed. When some workers became ill, he opined that they might have been suffering from food poisoning rather than inhalation of fumes. In leaving for greener, and less oil filled pastures, he reacted to the many criticisms of him in predictable fashion, "So far I'm unscathed ... Sticks and stones may break my bones but words will never hurt me." This was the man who ran the company responsible for this horrendous and preventable oil spill and to whom Obama had delegated full authority to deal with the spill and its environmental and economic impacts. It was rather like choosing Jack the Ripper to be his surgeon for an intestinal operation.
On June 10, 2010, the USGS came out with updated estimates on the blowout flow rate prior to the cutting of the riser and attachment of the LMRP: 20,000-40,000 bbls/day with an average of 25,000-30,000. This is in keeping with what non-governmental, non-BP back of the envelope estimates had originally set it at. These had looked at production in comparable wells in the area (50,000-60,000 bbls/day) and had marked off 50% to take into account crimps in the riser and obstructions in the BOP. Since the cutting off of the riser and insertion of the LMRP, BP has been getting 10,000-15,000 bbls/day through it. Using the same ballpark approach, this would indicate a post-LMRP spill rate of 35,000-50,000 bbls/day. In other words, BP's decision to catch part of the flow with the LMRP has made the spill considerably worse. On June 15, 2010, the spill rate was increased again to up to 60,000 bbls/day. On August 2, 2010, new estimates were released. It was thought that the well initially was spewing 62,000bbls/day and that this gradually decreased over time to 53,000bbls/day when the well was eventually capped (see below). This would indicate 4.9 million bbls were spilled into the Gulf. The fines from this could run as high as $21.2 billion.
On June 22, 2010, federal district court judge Martin Feldman in New Orleans, a Reagan appointee, overturned the Obama Administration's limited 6 month moratorium on new deepwater drilling in the Gulf. In an amazing opinion, Feldman wrote that just because one rig blew up did not mean that other deepwater rigs presented an "imminent danger." This is not only blank stupidity but shows a regional mindset that will bend over backwards for the oil industry regardless of the circumstances. Consider, for example, if a jetliner goes down. A component or sytem is known to have failed but it is unclear how or why it did. That model and even other jets with the same system are grounded until the problem is understood and resolved. Feldman is telling us to fly blind because industry profits are more important than another blowout. He says the court should not substitute its judgment for that of the agency and then proceeds to do so. He sets out the applicable law validating the moratorium and then promptly ignored it. The Obama Administration promised to appeal.
On July 12, 2010, Interior Secretary Ken Salazar issued a new moratorium on wells that use blowout preventers. However any deepwater wells currently in operation would continue in operation. On July 15, 2010, BP reported a new cap had stopped the flow of oil into the Gulf and began pressure tests on the well to see if the cap could be maintained. On August 3, 2010, NPR reported that Michael Bromwich, the director of the Bureau of Ocean Energy Management, Regulation and Enforcement, was working with Interior Secretary Ken Salazar to lift the moratorium on drilling in the Gulf "significantly in advance of November 30." So only two weeks after the capping of the worse marine oil spill in US history, the Obama Administration, having learned nothing from the experience was already trying to return to business as usual as quickly as possible.
On June 16, 2010 Kenneth Feinberg who was in charge of the fund to compensate families of victims of 9/11 and who oversaw corporate pay packages under TARP was named to head a $20 billion fund set up BP to compensate those who lost income due to its blowout in the Gulf. However, a month later Feinberg said he could not cut checks for anyone because BP had not put any money in its escrow account. On August 3, 2010, Pro Publica reported that BP continued to run the claims program, that it had made initial payments on only 38,400 claims (28% of those received), and that it had held up 59,900 (43% of the total) for insufficient documentation. In fact, for many claims in this last group, it is not a question of documentation but rather that BP has decided to pass many claims concerning indirect losses on to Feinberg. Only they haven't given Feinberg any money to settle them. Stalling, making the process as long and as difficult as possible is a standard means of limiting pay outs by wearing down claimants. Many who have legitimate claims will be daunted by the process, not file or accept less, just to get it over with and get on with their lives.
On August 3, 2010, a static kill of the well was effected, that is drilling mud was successfully pumped into the well. On August 4, 2010, NOAA came out with estimates of what happened to the oil spewed into the Gulf by the BP well blowout. It estimated that 25% had evaporated or dissolved, 17% was recovered directly from the well head, 16% dispersed naturally, 8% was chemically dispersed, 5% was burned, and 3% was skimmed. After running interference for BP as well as its long and repeated failures to estimate the well's flow rate or accept evidence of underwater oil plumes, it is more than a little suspicious that NOAA should rush out such specific figures for what happened to the oil, figures which suggest that 3/4 of the oil has been neutralized and that the remaining 26% is quickly biodegrading. What NOAA's press release did not mention was that even if these figures were accepted, that 26% represents 53 million gallons or 5 times the size of the Exxon Valdez spill. Nor did it address the issue of the fate of the natural gas, much of which due to the high water pressures and cold temperatures one mile down never reached the surface. All in all, the NOAA report looked like an exercise in damage minimization. This message was echoed by Obama the same day in remarks before the AFL-CIO:
a report out today by our scientists show that the vast majority of the spilled oil has been dispersed or removed from the water. So the long battle to stop the leak and contain the oil is finally close to coming to an end. And we are very pleased with that
Out of sight, out of mind.
On August 9, 2010, BP announced it had paid $3 billion into its escrow account and promised a further $2 billion in the fourth quarter. The account is supposed to eventually reach $20 billion. It will be interesting to see if A) this ever happens and B) it is fully dispersed. It is important to remember that this was to be an initial down payment, not a final settlement.
On August 17, 2010, scientists from the University of Georgia released their estimates on the amount of oil still in the Gulf. Contradicting those of the government, they declared 70-79% of the oil was still there.
On October 12, 2010, the Obama Administration lifted its moratorium on deepwater drilling.
On October 28, 2010, the Presidential commission investigating the blowout reported that Halliburton and BP knew weeks before the disaster that the foam cement they were to use to seal the well was unstable and did not meet industry standards. It is important to remember that while cement that would not set properly was crucial to the blowout it was still one of many failures leading up to the disaster.
On November 8, 2010, Fred Bartlit, the lead investigator for the Presidential commission, presented his findings to the commission. He argued that there was no evidence that anyone had jeopardized safety to cut costs. Of course, lacking subpoena power Bartlit only had the representations of those involved, BP, Halliburton, and Transocean for this amazing but predictable statement. BP has a long record of safety violations.And all three have questionable histories. But Bartlit who is a founding partner in the litigation boutique Bartlit Beck Herman Palenchar & Scott somehow misses all that. The saying goes: Where there is smoke, there is fire. Bartlit would reformulate this as where there is smoke, there is smoke, but its origin must remain a mystery. Somehow when our elites investigate themselves, they never find anyone guilty.This is meant to reassure us, but it doesn't.
On November 17, 2010, a panel from the National Academy of Engineering issued a report commissioned by the Interior Department with very different findings from those of Fred Bartlit. It concluded that BP and its contractors Halliburton and Transocean were to blame for the blowout and that inadequate training, a lack of emphasis on safety, and the pressure to cut costs contributed to the disaster. The panel also cited a lack of oversight by the Minerals Management Service.
92. On October 16, 2009, federal district court judge Royce Lamberth ruled against the ACLU in a FOIA request asking for uncensored transcripts of the Combat Status Review Tribunals (CSRTs) of Guantanamo detainees formally held by the CIA. Heavily redacted transcripts had been released in June. Specifically, the ACLU was interested in first hand accounts of CIA torture of detainees. Without reading the actual transcripts and depending on a CIA affidavit that it was not hiding anything illegal, judge Lamberth accepted the government’s arguments that release of the material would reveal sources and methods and could be used for “propaganda” purposes. Mark this one as a success in the Obama Administration’s ongoing campaign to cover up Bush era torture and a major failure on the part of judge Lamberth for not reviewing the CSRT transcripts before making his determination.
93. In response to a FOIA request, the FBI released a redacted version of its Domestic Investigations and Operations Guide on September 25, 2009. The manual came into force on December 1, 2008, in the last days of the Bush Administration, and continues to be used in the Obama Administration. While the accompanying press release states that the FBI does not
target anyone or any group on the basis of race, ethnicity, religion, or the exercise of any other right guaranteed by the Constitution.
and its general counsel Valerie Caproni re-assured
“I don’t like to think of us as a spy agency because that makes me really nervous,” she said. “We don’t want to live in an environment where people in the United States think the government is spying on them. That’s an oppressive environment to live in and we don’t want to live that way.”
this is, in fact, exactly what the manual does allow. The FBI can investigate anyone simply by invoking the blanket claims that it is “acting to prevent crime, protect national security, or collect foreign intelligence” even where the individuals investigated have no factual connection to the stated purpose of the overall investigation. What this means is that the FBI can investigate anyone in a target’s community. It goes immeasurably beyond the 4th Amendment and its declaration that
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated
The FBI also can hold on to any such information, unConstitutionally obtained, even if it is irrelevant to the investigation. That is a hallmark of an out of control intelligence program: the data, even on the innocent, never dies. And while supposedly not the only criteria, ethnic and religious profiling are allowed. From the excesses of J. Edgar Hoover to the abuses uncovered by the Church Commission to the more recent sloppiness with and massive overuse of National Security Letters, the FBI has a long and inglorious history of poor oversight and abuse of any extraordinary power granted it. That these have been codified speaks to how engrained these tendencies are. That the Obama Administration can accept them so readily shows how far we have progressed away from the Constitution and toward a surveillance state.
94. MERS stands for the Mortgage Electronic Registration Systems and it may be what finally blows up the banks. Aid to homeowners was near the bottom of the Bush and Obama Administrations’ list of priorities in dealing with the housing crisis and the financial meltdown, despite the fact that this is where our economic crisis started and where much of its solution must be found. After the hundreds of billions from the TARP and the trillions from various other programs were promised or already delivered to the financial sector, Timothy Geithner announced on February 18, 2009 a $75 billion program to “help” homeowners. The program lacked cramdowns, the only effective way to help underwater homeowners (those whose homes were worth less than the amount oustanding on their mortgages). The program’s size was small in terms of the money, the number of people helped, and in comparison to the aid extended to the banks. It quickly became apparent that the primary purpose of the program was not to help homeowners but to support housing prices as yet another effort to make bank balance sheets look better than they actually were. On April 28, 2009, Geithner announced additions to the program which would reduce the payments on first and second liens but again without reducing the principal. As such, it continued to be a program more about the banks than homeowners. Yes, they might stay in their houses a little longer but their debt situation was not solved. Re-default rates were high. As usual Geithner was focused on the wrong problem.
During the bubble a lot of mortgage writers had not only engaged in fraud but had been incredibly sloppy in their paperwork. This is where MERS came in. It was a private entity used by many banks and mortgage writers as an electronic record for mortgages. The purpose was not high tech but to avoid paying filing fees with county clerks. However banks and companies were bought and sold, failed and merged, sometimes many times. MERS should have kept track of these changes but it is not clear that they did. But there was another more fundamental problem, the securitization process which so many mortgages went through. In it, the promissory note was split off from the mortgage leaving only the tie to the property. These notes were then bundled together and split up in various ways and sold and resold to parties who were interested in the cash flows they represented, and not the actual property except as collateral. Coming up to and after the housing bubble burst, many homeowners were unable to make payments because the terms of their loans changed vastly increasing their monthly payments. Or they had taken out second mortgages on the increased bubble price of their homes and now found they owed far more than their homes were worth. Or as things went on, the prices of housing fell and put them into the same situation. So either because they could not make the payments or it made more sense for them to walk away, the cash flows from the promissory notes were affected. As a result, the holder of these securities wanted the property and initiated foreclosure actions using MERS as their representative. But the securitization process had produced an unintended, but not unforeseeable, Catch-22. A party bringing a foreclosure action must have both parts of the mortgage to have standing, the promissory note (the financial interest) and what I will call the deed (the tie to the property). But this is exactly what the securitization process had split apart. The original holder of the mortgage had no financial interest in the foreclosure, and the promissory note holder had no link to the property. In effect, the promissory note became an unsecured loan, i.e. no longer secured to the property. MERS as a private company was really nothing more than a glorified database. Electronically recording a mortgage with them was not the same as actually making them the holder of the mortgage. So it too had no standing. State courts, like Kansas and New York, have begun picking up on this. This is a well defined body of law that has been around since before the founding of the Republic, and if properly applied, the repercussions will be enormous. Millions of mortgages representing trillions of dollars could fall into this category. Who is responsible and who is liable could literally tear apart what is left of our zombie banking system. Geithner will, no doubt, be one of the last to know.
95. On October 21, 2009, Treasury Secretary Timothy Geithner testified before Congress on his proposals to protect the financial system from systemic risk. What Geithner wanted was what Brad Sherman (D-CA) called “TARP on steroids. In Section 1204 of his proposal Geithner asked for a permanent grant of authority to make unlimited loans without conditions and no oversight to the TBTF (Too Big to Fail) banks to deal with systemic risk. Geithner’s ideas are typically crazy. First, such a grant is unConstitutional. Under Article I Section 8, it is the Congress, not the Executive, which is given the power “to borrow money on the credit of the United States.” Second, this authority would promote the very behavior it seeks to avoid. As we have already seen, the TBTF were bailed out, and this did not cause them to reform their behavior but simply allowed them to return to their highly leveraged speculative activities that much faster. Knowing that they will be bailed out encourages moral hazard by them, and because of their size produces systemic risk, inherently and inevitably. Giving a financial industry sockpuppet like Geithner access to trillions is madness but it is typical, as I said, for him to make such a request. If it is extreme, poorly thought through, and won’t work, that is the hallmark of Timothy Geithner.
96. On October 30, 2009 in federal district court, the Obama Administration invoked the state secrets defense yet again in Shubert v. Obama, a class action lawsuit brought by four New Yorkers alleging that their international communications, and those of other ordinary innocent Americans, were hoovered up by the NSA. Despite his recent anouncement of new guidelines on this defense which preclude its use to shield illegal acts (see item 27), this is precisely what Attorney General Holder is doing. He makes the same tired argument that allowing the suit to go forward would compromise ongoing intelligence operations. In other words, he admits that the government has done and continues to do surveillance relevant to the case, vitiating the state secrets rationale he seeks to invoke. Nor is this state secret all that much of a secret since the December 16, 2005 James Risen and Eric Lichtblau New York Times story (see item 86). Additionally, federal courts know how to deal with, and have dealt with, classified issues in the past. What the Holder Justice Department is seeking is to pre-empt court review and consideration of the legality of Bush, now Obama, Administration surveillance of Americans.
97. On November 2, 2009, in an en banc 7-4 decision the Second Circuit Court of Appeals dismissed Maher Arar’s suit seeking damages from the US government for his arrest and rendition to Syria where he was tortured. Arar had both Canadian and Syrian citizenship. Canada has already paid him reparations for its part in what happened. The court ruled that Congress had never created legislation allowing such a suit. So although the US sent an innocent man to be tortured and imprisoned, Arar is left without recourse, except to appeal to the Supreme Court. The question is not so much a legal but a moral one. Why can’t the Obama Administration apologize to a man so wronged by our government? On June 14, 2010, the Supreme Court denied certiorari for Arar (p.9). The Obama Administration had supported the denial of certiorari.
98. Continuing its anti-reform campaign, on November 3, 2009, the White House through Rahm Emanuel got the House Financial Services committee to agree to an amendment in its “reform” bill which would exempt firms with market caps under $75 million from complying with the auditing provisions of Sarbanes-Oxley (SOX). SOX was enacted in 2004 to prevent the accounting scams which brought Enron and Worldcom down. These firms had been receiving yearly exemptions since 2004 when the bill was enacted. As often happens in our corrupt political culture, Sarbanes-Oxley was a good first step to addressing the Enron fiasco, but rather than building on it, as with limits on executive compensation (to prevent moral hazard and excessive and destructive risk taking), going through the motions of enacting reform was considered by our political Establishment more important than enacting needed reforms. Then as now, real reform efforts quickly petered out or were subverted. Our current economic and financial crisis show why clear and transparent accounting practices are so important. Yet here as with changes in accounting rules to allow mark to model and debt write downs, the Obama Administration has supported measures that allow companies to cook their books. This amendment was originally agreed to by voice vote on November 3 and reconfirmed the next day on November 4, 2009, 37-32. The overall “reform” bill was then passed out of committee 41-28.
99. According to the October 2009 jobs report (released November 6, 2009) from the Bureau of Labor Statistics (BLS), the unemployment rate broke 10 percent (10.2%) for the first time since the recession began in December 2007. To get an idea of the scope of the problem, it is important to understand what the BLS is measuring and how it is measuring it. The BLS tracks both jobs (created or lost) and employment (or unemployment).
The job numbers are based on a “birth-death” model plus sampling. They are projections based on a limited data set and this is why they are revised in succeeding months as more data comes in. “Birth-death” refers to expectations about how new businesses will be created (or old ones lost) and how many jobs they will produce. This has been criticized in the current recession because fewer new businesses have been created than the model predicts and so more jobs have been lost than the figures show. The BLS estimates that it will have to add 824,000 more job losses in its annual revision which will appear in its February 2010 jobs report.
Unemployment figures are based on a Household Survey. The sample size is fairly small so there is a built in error factor that is even larger than for the job numbers. The unemployment rate, as commonly referenced in the press, is the BLS U-3 number. A more complete figure is the U-6 which includes both the unemployed and those who would like to find a full time job but for whatever reason have not found one.
It is important too to note that jobs refers to nonfarm jobs. Farm jobs (and certain other types, such as caregivers) are not included in the counts. On the other hand, those employed refers to anyone 16 or older with a job. This creates a discrepancy of about 7.5 million between what the U-3 and the job numbers are based on.
Since the recession began through October 2009, 7.3 million jobs have been lost, 3.5 million since Obama took office. This does not reflect another 2.76 million jobs needed since December 2007 (120,000/month) to keep up with population growth. Parenthetically, manufacturing jobs, a measure of good paying jobs, decreased under Bush by 26% from 17.1 million in January 2001 to 12.6 million in January 2009. They have declined a further 965,000 under Obama and now account for only 8.9% of US jobs (a 31.8% fall since January 2001). This is an indication too of the rapid de-industrialization of the country, another issue that has not been addressed by the Obama Administration.
As for unemployment, 10.2% is a scary figure. It is even scarier when you consider that it reflects 15.7 million people. Now consider the U-6 which is at 17.5% and represents 27 million Americans who can’t find full time employment. These are vast problems requiring vast solutions. Trillions have gone to unproductive banks to cover their many bad speculations but to make a difference in the lives of tens of millions of Americans all we have seen is a small, poorly constructed stimulus, and a vast silence.
100. In September 2009, the Obama Department of Justice signed off on the Federal Housing Finance agency’s (FHFA) removal of its own Inspector General. The FHFA oversees the receiverships of Fannie and Freddie, which together hold some $6 trillion in home mortgages and purchase or guarantee 80% of home mortgages currently being made. FHFA Inspector General Ed Kelley’s sin was that he was looking into fraud in the the agency’s Make Home Affordable and other foreclosure reduction programs. As we all should know by now, the Obama Administration hates to investigate illegality, its own, its predecessor’s, or any of their cronies.