101. On November 13, 2009, as part of a Friday news dump, Attorney General Eric Holder announced how the government would proceed in cases against 10 important Guantanamo detainees. 5 would be tried in federal courts either in the Southern District of New York (Ground Zero) or the Eastern District of Virginia (the Pentagon) and 5 would be tried before military commissions. These moves to prosecute are late by years and are welcome to finally have come, but they remain disturbing. The Attorney General is essentially forum shopping. All detainees will have their day in court but the courts will not be equal. A federal court has the whole weight of the federal judiciary and Constitution behind it. It has never been clear what the legal, Constitutional, and procedural foundations of the Bush created and Bush and Obama revised military commissions are.
This is all about torture. All 10 detainees have been tortured. Those whose prosecutions have been so damaged by it that they can not even survive the extremely low standards of the federal courts in terrorism cases will go to the military commissions. Others, like Khalid Sheik Mohammed who boasted of his role even before his capture and for whom there is evidence untainted by torture, will go to the federal courts. This is not “justice for all” but an ongoing attempt to game the system. The Obama Administration either has no faith in some of its cases, or the system, or both so it is seeking to rig the outcomes in advance and ensure guilty verdicts. This is not how the rule of law or any real system of justice is supposed to work. This is reminiscent of Stalinist Russia where the verdict was decided and, only after this, the trial was held. Not good. On January 27, 2010, Michael Bloomberg, the mayor of New York, troubled by the costs of security and lobbied hard by real estate interests asked the Obama Administration to move the trial of Khalid Sheik Mohammed. Two days later on January 29, 2010, the White House caved. First, while the trial of KSM is likely to be expensive, $200 million in security costs was grossly excessive. Second, the real estate industry’s intervention had an unmistakable NIMBY component to it and was completely inappropriate. Third, having the KSM trial in New York would have sent an important message about the strength of and confidence in our judicial system. Moving the trial simply conveys the opposite impression that American courts are not up to trying such people.
On April 4, 2011, Attorney General announced that he was transferring the cases of KSM, Walid Muhammad Bin Attash, Ramzi Bin Al Shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed Al Hawsawi to the Department of Defense for trial by military commission. He blamed Congressional interference for his decision, but the truth is Obama only paid lip service to civilian trials. He has been backtracking on them for more than a year. Count this one as another blow to the rule of law and put the responsibility for it at Obama's door. Congress didn't do anything here that Obama did not want to have happen.
102. On November 13, 2009, White House counsel Gregg Craig announced his resignation. Craig was behind Obama’s Executive Orders which banned torture and the pledge to close Guantanamo within one year. For these transgressions, he was effectively sacked. It says a lot about where this Administration is headed that even a well established figure like Craig can run afoul of it, simply by doing the right thing.
103. On November 12, 2009, prosecutors filed a civil complaint against the Moslem charity, the Alavi Foundation seeking forfeiture of $500 million in assets. The assets are principally a Fifth Avenue office building whose rents are used to fund mosques and schools in 4 states. Under the action, the mosques and schools would also be seized. No raids were conducted but notices of the action were posted on the buildings, which remained open. The complaint alleges that the foundation funneled revenues through Bank Melli, an Iranian bank, in contravention of US law. It also claims that the charity is controlled by the Iranian government. With the recent assault at Ft. Hood by Nidal Hasan in which 13 were killed, the spectacle of the seizure of US mosques could not come at a worst time. It recalls the repeated prosecutions of the Holy Land Foundation during the Bush years until a conviction was finally won over ties to Hamas. It underlines the threats that Islamic charities face in this country if they have any connections, even humanitarian or culturally-based ones, to any parts of the Middle East, especially those that the US government dislikes. It is in stark contrast to the lack of similar restrictions on the movement of funds to extremist settler groups in Israel.
104. Howard Dean was elected head of the Democratic National Committee on February 12, 2005. He was the architect of the 50 State Strategy, a program which directed money to strengthen state Democratic organizations in all 50 states. It was envisioned as a long term bottom-up plan to build the party and extend its power beyond its traditional strongholds. It had much to do with the Democratic takeover of Congress in 2006 and Obama’s victory, even in red states, in 2008.
It was opposed by Rahm Emanuel, the then head of the Democratic Congressional Campaign Committee (DCCC). Emanuel’s idea was to run conservative Democrats and former Republicans in selected districts and funnel big bucks to them. His win record was less impressive than Dean’s but he was quick to take credit for Democratic victories. There were two problems with Emanuel’s strategy. The first was that given the choice between a real Republican and a Republican-lite voters if they were trending that way would vote for the real Republican. The second, never explained, was what benefit Democrats gained generally by electing what were to all intents and purposes Republicans to Democratic seats, when in many instances a real Democrat could have won the seat. The result has been the the disproportionate influence of the Blue Dog coalition on legislation, a coalition substantially to the right of most Democrats (and independents) in the country.
Much has been made of Obama as a grassroots candidate. While he was certainly adept at using the levers of grass and net roots in his campaign, his was always very much a top-down approach to political organizing. The result was that Obama got rid of Dean as head of the DNC and replaced him with the more conservative and far more ineffectual Tim Kaine of Virginia. And of course he made Emanuel his chief of staff and has chosen the Blue Dogs as his group of choice in the Congress. Policy-wise this has produced both legislation and a legislative process that has left voters across the board unimpressed. Curiously, by siding with the Blue Dogs, it looks like Obama and Rahm will lose exactly those voters these politicians are supposed to represent.
105. On September 24, 2009, the Obama Administration announced that plant virologist Roger Beachy would become the first director of the National Institute of Food and Agriculture (NIFA), a new center consolidating all federally funded agricultural research. In an October 8, 2009 interview, Beachy stated that he had never worked for biotech giant Monsanto although he along with many other scientists at Washington University in St. Louis had received research grants from the company. Beachy massively understated his links to the company. His research collaboration with Monsanto resulted in the world’s first genetically modified (GM) crop, a field Monsanto currently dominates. In January 1999, he was named the founding president of the Donald Danforth Plant Science Science Center, a research partnership among 4 universities of which Monsanto was the sole corporate member. Beachy is a gifted researcher but he has close ties to the largest and most aggressive biotech firm in the world. His selection is another example of the revolving door where someone from industry or with close ties to it is placed in a position where they can steer government funds, resources, and research in directions beneficial to the corporations and industry from which they came. Such relationships blur the line between government and corporations. Where does NIFA end and Monsanto begin?
106. In a similar vein, Islam “Isi” Siddiqui was nominated to be the Obama Administration’s Chief Agricultural Negotiator in the Office of the US Trade Representative on September 22, 2009. Siddiqui was a vice president at CropLife, a lobbying group for the pesticide and agriculturally-related biotech companies such as Monsanto, Syngenta, Dow Chemical, and Dupont. Siddiqui was involved in the promulgation of the first standards defining organic foods. These included such “organic” components as GM crops and sewage sludge. He is also known for his criticism of the European Union’s 1999 ban on hormone treated beef and Japanese GM labeling requirements. His nomination is opposed by environmental groups but also some agricultural ones which see him as a proponent of a single high tech, industrialized form of American agriculture.
107. The Obama Adminstration sought to weaken legislation banning federal contracts to companies that use foreign shells to avoid paying US taxes. The DeLauro Amendment passed in 2002 and one of the few Democratic legislative victories during the Bush years prohibited this practice known as “inversion”. The Obama Administration contends that it “might” violate trade agreements. It is difficult to see how such a transparent scam could. Alternately, it suggests a real problem in the nation’s trade agreements and a need to renegotiate them.
108. Immigration is a policy that Obama has yet to address. His Administration has also been slow to fill US Attorney positions. The two come together in the nomination of Stephanie Rose as US Attorney for the Northern District of Iowa. Rose had a prominent role in the abusive prosecutions of immigrants caught in an ICE raid on the Agriprocessors kosher meat processors plant in Postville, Iowa on May 12, 2008. Those arrested were charged with felony identity-theft for using fake Social Security and visa numbers. They were given the choice of pleading out to 5 months in prison followed by immediate deportation or facing a trial with a mandatory 2 year minimum. Some 270 pled out. In May 2009, the Supreme Court ruled unanimously that identity-theft laws could not be so used. Rose’s nomination was passed out of the Judiciary committee on November 5, 2009 to the full Senate. The question is why the Obama Administration nominated a Bush-era hack to this position in the first place.
109. This entry establishes a baseline for the evaluation of hunger in America. A USDA report released November 16, 2009 covering the year 2008 found that 49.1 million Americans were “food insecure” (the USDA’s terminology for hunger). Those who are food insecure are defined as “at times, uncertain of having, or unable to acquire, enough food for all household members because they had insufficient money and other resources for food.” Of these, 17.3 million had very low food security. This is defined as “at times during the year, the food intake of household members was reduced and their normal eating patterns were disrupted because the household lacked money and other resources for food.” 16.7 million children lived in households that were food insecure. 5.2 million had very low food security. Since the adults in these households may have deferred their nutritional needs for the benefit of their children, the number of children actually affected would be fewer than these numbers. Also the pattern was not of chronic hunger but recurrent crises over food during the course of the year.
2008, the first real year of the recession, showed a marked increase from previous years. Households that were food insecure jumped from 11.1% in 2007 to 14.6% in 2008. While the accompanying press release lauded Administration efforts to address hunger, it is not clear that the government has enacted any specific programs that effectively combat the growth in hunger.
110. In a notable public health fiasco, on November 16, 2009, the US Preventive Services Task Force (USPSTF), an influential consultative group within the Department of Health and Human Services (HHS), issued new and controversial recommendations on breast cancer. The 4 principal changes were
1) The USPSTF recommends against routine screening mammography in women aged 40 to 49 years.
2) The USPSTF recommends biennial screening mammography for women aged 50 to 74 years.
3) The USPSTF recommends against teaching breast self-examination (BSE).
4) The USPSTF concludes that the current evidence is insufficient to assess the additional
benefits and harms of screening mammography in women 75 years or older.
The 2002 guidelines recommended mammograms every 1-2 years beginning at age 40 and were agnostic on self-exams. Already in these earlier recommendations there were questions about mammograms in women under 50. Although mammograms are as effective in the 40-49 year old group at picking up breast cancers, fewer women overall get breast cancer in this group. The 2002 guidelines also suggested mammograms every 12-33 months. In practice, this was translated into yearly mammograms. The current guidelines split the difference (at 24 months) with regard to the older recommendations. The recommendation against breast self-exams continues a trend. In the 2002 report, the evidence was deemed insufficient. This can be seen as a disempowerment of the patient and doesn’t address the issue of more aggressive forms of breast cancer that such exams might pick up. As for women over 75, the studies simply haven’t been done. Nevertheless, other physician biases seem in play, which are the presumptions that older women will outlive their disease, i.e. they will die of other causes or that they will suffer more adverse outcomes from interventions.
The problem is that the USPSTF did a really inexecrable job in explaining major changes in policy regarding a sensitive and traumatic medical issue that touches on a fear all women face. They didn’t make their case. Indeed they barely presented one. They said that they wished to reduce the anxiety associated with false positive mammogram results and the concomitant physical trauma of evasive evaluative procedures, but their announcement created anxiety among women, consternation among phsyicians, and confusion among both. Because of the way they went about this, it was unclear if women’s health, or the costs of screening, was the impetus for their decision. There is a place for debates which weigh health costs against benefits, but they should be clearly labeled as such, not called something else and snuck in the backdoor.
There was the fear too that insurance companies might use the USPSTF recommendations to refuse payment for yearly mammograms. Finally, the USPSTF’s actions damaged the credibility of the recommendations process itself. It failed completely in educating the public as to its reasoning. Instead it issued what was perceived as an arbitrary reversal of major healthcare policy with little or no explanation. This is important because the USPSTF is supposed to fill in many of the blanks left in current healthcare reform bills. If it did such a bad job in this instance, can it be trusted, will it trusted, in these others?
111. On October 28, 2009, Obama signed the 2010 Defense Authorization bill into law. It contained provisions modifying military commissions. On November 18, 2009, a hearing of the military commission of Mohammed Kamin took place. Military commissions to try Guantanamo detainees was always meant as a way to avoid dealing with the issue of torture and to make up for what were shocking deficiencies, sloppiness, and unprofessionalism in the preparation of cases and the maintenance of evidence. The Kamin hearing demonstrated that under Obama little has changed. The hearing went forward despite the fact that no one there had any idea how the recently enacted changes would affect the proceedings. Military commissions were set up to try “unlawful enemy combatants,” a terminology the Administration has dropped. They are now “unprivileged belligerents,” but it is unclear that a system which was set up to try one class of offenders can be used to try another class, without a legal determination changing their status. Kamin was charged with “material support of terrorism”, a charge even the Obama Justice Department thinks is unsustainable, not just in this case but generally. A year and a half into Kamin’s case, there were still basic issues of discovery. The defense had received only 4 summaries of some 17 interrogations of Kamin. Nor could the two initial Afghan interrogators of Kamin be found. Military commissions are antithetical to the rule of law, but the Obama Administration can not be bothered even with requiring minimal procedural standards for them. This was exactly the attitude of the Bush Administration to them.
112. On November 24, 2009, Phillip Carter, cofounder of Iraq and Afghanistan Veterans of America, resigned as Deputy Assistant Secretary of Defense for detainee policy, a post he had held since April. Carter stated he was leaving for family reasons, a euphemism for a dissatisfaction with the job or in lieu of a public firing. His departure comes just 11 days after White House counsel Greg Craig announced his resignation. So the two men who were most responsible for efforts to close Guantanamo and afford Constitutionally prescribed legal rights to detainees are gone. This is hardly a coincidence.
113. On November 24, 2009, the Obama Administration announced that it would not sign on to the Ottawa Convention on the “Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction.” 156 countries are signatories. The Obama Administration gave no rationale for its decision other than to say that, by signing, it “would not be able to meet our national defense needs” Curiously, both Iraq and Afghanistan are signatories although South Korea is not.
114. The Bush and Obama Administration’s detainee policies can be as cruel as they are incomprehensible. Abdul Hamid al Ghizzawi is a Libyan who moved to Afghanistan shortly after the Russians left, married, and became a shopkeeper in Jalalabad. Because he was Arab, he was seized in late 2001 and sold to the Americans for a bounty. In early 2002, he was transferred to Guantanamo where he has been ever since. In 2004 in response to the decision in Rasul, the Bush Administration put in place its infamously contrived Combatant Status Review Tribunals (CSRTs) whose purpose was to determine whether a detainee was an enemy combatant. Despite the deeply biased nature of the process, Ghizzawi’s first CSRT found that he was not an enemy combatant. Such a determination and others like it did not sit well with the Bush Administration’s contention that Guantanamo held only the worst of the worst. As a result, a second CSRT was held for Ghizzawi in January 2005 and, although no new information was presented, he was duly classified as an enemy combatant. In December 2005 Ghizzawi was able to retain counsel and a habeas petition was filed on his behalf in DC district court.
Rasul had a second impact on the Ghizzawi case. It found that detainees had habeas rights. In reaction to this, the Congress passed the Detainee Treatment Act (DTA) which closed off statutory access to future habeas corpus petitions and sought to contest those currently in the courts. Ghizzawi’s petition made it in just under the wire. Bush signed the Defense Appropriations bill of which the DTA was part into law on December 30, 2005. But his petition was immediately stayed until the test habeas corpus case of Boumediene was sorted out. The Supreme Court initially decided to deny certiorari to Boumediene (i.e. it decided not to hear the case) but then reversed itself on June 29, 2007. The Boumediene decision came out on June 10, 2008 and found that detainees held at Guantanamo had a Constitutionally mandated right to habeas. As a result and rather belatedly, the stay on Ghizzawi’s stay was lifted in November 2008, after nearly 3 years.
Subsequent action on the case took place in the Obama Administration. In May 2009, counsel sought expedited action by the Administation’s new review task force and in mid June Ghizzawi was “cleared for release.” But like others so cleared, Ghizzawi has not, in fact, been released although as of this writing more than 5 months have passed. For reasons of his personal safety, Ghizzawi can not be returned to either Afghanistan or his native Libya. (On the other hand, this has not stopped disctrict court judge Reggie Walton from approving the the repatriation of another Guantanamo detainee Umar Hamzayevich Abdulayev to possible torture in Tajikistan.) Ghizzawi also has a history of Hepatitis B and tuberculosis which were apparently left untreated during his emprisonment and which could complicate finding a country that would take him.
In any case, Ghizzawi is currently in a legal limbo. The district court will not move on his habeas petition because it points to the government’s contention that he is “cleared for release,” but the government isn’t actually releasing him. This led Ghizzawi’s counsel on October 2, 2009 to file a new habeas petition with the Supreme Court seeking relief.
In a further twist to this story, the Justice Department notified Gorman on November 17, 2009 that her new habeas brief was cleared for public release and she accordingly posted it on her website. Later on November 20, 2009, the DOJ informed her that it had made a mistake and that she must remove the post from her site because such records were “protected” under DOJ guidelines. There is nothing in the brief that is classifiable. Nor is there any reason for keeping such briefs secret. They are and should be part of the public record. The DOJ action is rather an effort to control the process and above all avoid embarrassment. In this instance, it failed. Gorman’s brief was widely disseminated on the internet. So now while she can not discuss it almost anyone on the net can.
The saying is that justice delayed is justice denied. Ghizzawi had to wait 3 years before he could even get a lawyer. He had to wait another 3 years while Boumediene wound its way through the courts. And now 1 1/2 years after Boumediene was decided and with the tacit admission by the government that he never was a terrorist or enemy combatant, he remains in Guantanamo with no end in sight. There was a brief period in the Spring of 2009 when the Obama Administration looked like it would reassert the rule of law, resolve the detainee question, and close Guantanamo. But since then there has been a noticeable harding of its position. Reformers such as Craig (entry 102) and Carter (112) have left. The closure of Guantanamo has been delayed, and the DOJ has returned to the Bush era practice of playing games with the process.
115. A November 28, 2009 story in the New York Times reports the Obama Administration maintains at least two “black” prisons run by Special Ops at Balad in Iraq and at Bagram in Afghanistan. Prisoners are held and interrogated at the sites for two weeks without any access to the Red Cross. These sites may not be as “black” as those sanctioned by Bush but they show that the Obama Administration continues to evade its treaty commitments and the norms of international behavior.
116. A November 29, 2009 story in the Boston Globe revealed that the Obama Administration will keep millions of pages of documents classified covering a period from World War II to the 1980’s. This is not because there is any great need to keep this material secret but rather the Administration getting rolled by agency bureaucracies. Organizations like the NSA and CIA have had years to review the documents in question but have refused to. They then use the lack of review as a reason for further delay. The Obama Administration not only is letting them get away with this but providing another example of its lack of commitment to its stated goal of transparency.
117. Max Baucus (D-MT), chairman of the Senate Finance Committee, was given, with Obama’s blessing, the lead in the Senate to craft a healthcare bill. That a finance committee and not a health committee was given this job is as clear an indication you could want that this was an exercise about money, not healthcare. This was further underlined by Baucus himself, a Senator from a small population state who heads one of the most powerful committees in the Senate. He represents far more the influential interests which have business before his committee than either the people of Montana or the nation at large. In his 2008 re-election campaign, only 13% of his contributions came from Montana donors.
Baucus wasted months trying to write a bipartisan healthcare bill with Republicans. What happened was typical and predictable. Obama’s original proposals were already overly generous to insurance, drug, and medical companies. Baucus’ pursuit of Republicans made them even more so but in the end all but one of the Republicans (Olympia Snowe (R-ME)) bailed on him, and even she indicated that she would probably vote against the final bill.
It was unsurprising that Baucus would favor a corporate friendly bill. He is one of the biggest recipients of money from the healthcare industry and has received millions from it. He helped pass Medicare Part D with its prohibition on Medicare negotiating drug prices with pharmaceutical companies. This time around was no different. He took the single payer/Medicare for all option off the table and even had some of its supporters arrested. Even as he dished money to insurance corporations, he stressed the importance of containing the cost of the program to the government.
On December 5, 2009, the story broke that Baucus had been keeping his girlfriend Melodee Hanes on his payroll as state office director. She received $180,000 in 2008 and part of 2009 for her work. He also had nominated her for the position of US Attorney in Montana. She later withdrew her name. This may have had less to do with her relationship with Baucus and more to do with her history as a prosecutor in Iowa in child abuse cases where she ordered exculpatory evidence withheld from the defense and where she failed to disclose her conflict of interest in some cases (her then husband, who tended to see abuse where no one else did, was the medical examiner and served as a witness in them).
This then was the man, riven with conflicts of interest, both public and personal, that Obama entrusted healthcare reform to in the Senate, who was the bought and paid for servant of the healthcare industry, who could preach financial “responsibility” even after paying his girlfriend out of government funds, and who tried to swing for her another far more important job for which she was eminently unqualified. If you want to know why and how things don’t work in Washington, you need look no further than this. It is the system. It is the process, but above all, it is the people, people of which Max Baucus is only one of many examples, who serve everyone else’s interests, except ours.
118. On November 24, 2009, an attention seeking couple the Salahis managed to crash the first state dinner of the Obama Presidency and reach, as photos showed, Obama, Biden, and other senior Administration officials. This might be funny if it was not such a major security failure on the part of the Secret Service. The White House Social Secretary Desiree Rogers was also faulted for mixing with guests rather than vetting them. While this would have been helpful, security was simply not her job.
Bennie Thompson (D-MS), chairman of the House Homeland Security committee, held a hearing on the breach on December 3, 2009. Neither the Salahis nor Rogers showed up. In what has to be the silliest and most egregious assertion of its kind, the White House invoked “executive privilege” for Rogers. Janitors, dishwashers, and gardeners at the White House must all be breathing a collective sigh of relief knowing that they too will likely be covered by executive privilege in the future. The Bush Administration was known for its abuse of this privilege, which is traditional but not Constitutional or statutory in nature, This is yet another example of the Obama White House following in its footsteps.
Thompson declined to press the matter.
119. While we are on the subject of silliness, at the urging of Senate Minority leader Mitch McConnell, on November 18, 2009, the Obama White House nominated Dana Perino, former Press Secretary to George Bush and one of the most emptyheaded people in Washington, to the Broadcasting Board of Governors. The board oversees all civilian international broadcasting of the government, including Radio Marti beamed to Cuba. Perino rather famously didn’t know the difference between the Bay of Pigs and the Cuban missile crisis, earning her the nickname “Pig Missile” in the blogosphere. Her nomination is another example of what is known as “wingnut welfare,” where totally incompetent and unqualified conservatives are rewarded with sinecures to pay the bills and fatten their résumés.
120. On April 20, 2009, Cass Sunstein was nominated to head the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget. He was confirmed on September 10, 2009 by a 57-40 vote. Primarily, a legal scholar who believes in judicial minimalism, he was part of the neoliberal Chicago group advising Obama. Co-author of the book “Nudge,” he stressed the responsibility of individuals, over that of institutions, in the choices they made. In July 2008, Sunstein also rather famously promoted the Obama line of not holding the Bush Administration account for its illegalities arguing that this would be “criminalizing public service.” This from a man whom many put on Obama’s short list for a Supreme Court nomination.
The head of OIRA is a key player in government regulatory efforts. What was needed was someone who would reverse the Bush era mania for deregulation and rollback its decisions. Cass Sunstein was a bad choice for this job.
This view was reinforced when it came out on December 2, 2009 that Sunstein had made Randall Lutter a member of his regulatory review team. Lutter was the chief economist for the Food and Drug Administration (FDA) during some of the worst, most anti-regulatory days of the Bush Administration. Long associated with the conservative American Enterprise Institute (AEI), he is well known for his specious cost benefit analyses on how much lead, mercury, and global warming we can all use.
OIRA is a small, important, and little known part of the government. Looking at offices like these can be instructive, however, because they can show how well a President is doing administratively or else how deeply the rot goes.
121. In further notes from the construction of the surveillance state, a doctoral student at Indiana University Christopher Soghoian, in a blogpost on December 1, 2009 reported that Sprint Nextel provided law enforcement authorities GPS location information on some of its customers 8 million times in the period of a year from September 2008 to October 2009. In addition to this, telecoms and other communications companies, such as Google and Yahoo, also provide government a host of other information, including “telephone numbers dialed, text messages, emails and instant messages sent, web pages browsed, the queries submitted to search engines.” Although many customers might be unaware of these activities by their service provider or think that government would need a court order to acquire such information, this is not the case. A simple 215 request, (see entry 85) is sufficient.
Nor do the telecoms do this for free. They provide government agencies with price lists for their various surveillance services. Some of these have made it to the net either via FOIA or leaks (Cryptome December 1-7, 2009). Given the volumes involved, surveillance is likely a significant profit center for participating companies. They are nevertheless sensitive about public fallout from these activities. Verizon wrote that customers “might become unnecessarily afraid that their lines have been tapped or call Verizon to ask if their lines are tapped.” Yahoo sought to have its price guide removed from Cryptome, correspondence which Cryptome included on its website.
What Soghoian publicized is a massive, invasive, for profit surveillance program with essentially no oversight. It is not that all Americans are being surveilled but rather that all their electronic communications are subject to such surveillance without the benefit of any court supervision. This is a program which continues unrestrained into the Obama Administration.
122. On December 3, 2009, the Obama Justice Department entered an amicus brief in support of Bush torture lawyer John Yoo in the Ninth Circuit Court of Appeals in the civil action of Padilla v. Yoo. Jose Padilla is the American citizen arrested on May 8, 2002 and accused of being some kind of super terrorist planning on constructing a “dirty” bomb or blowing up buildings with gas bombs. He was held by the military for 3 1/2 years during which time he was tortured. He was eventually transferred to civilian custody in January 2006 in a successful effort by the Bush Administration to moot his challenge to his detention which was headed to the Supreme Court. On August 16, 2007, he was convicted on dubious and unrelated terrorist charges.
It was the US itself at Nuremberg in 1947 in the US v. Altstötter, also known as the Judges’ Trial, which established the precedent for criminal accountability for officers of the court carrying out illegal actions of the state. In 1971, this accountability was extended to civil cases in Bivens v. Six Unknown Named Agents in which the Supreme Court held that individuals had a common law right to sue federal officials who had violated their “constitutionally protected interests”.
On January 4, 2008, Padilla sued Yoo because Yoo, working in Justice’s Office of Legal Counsel (OLC), wrote (in close coordination with David Addington and Vice President Cheney’s office) the legal memos which justified Padilla’s detention and torture by the military. As legal documents, the Yoo memos are impossibly bad, poorly reasoned, researched, and written. Curiously and fairly disturbingly, the Obama DOJ echoes Yoo’s discredited argument that “war powers and matters of national security” trump everything and preclude a Bivens action. Very oddly too, the government argues that a Bivens action such as Padilla is mounting can not go forward without Congressional legislation underpinning it. But Bivens coming out of the common law should not need an act of Congress to justify it. Rather it would take Congressional action to shut it off.
Now to be fair, the government is correct in so far as it maintains that the courts have not been sympathetic to suits based on Bivens. One has only to look at the recent decision by the Second Circuit in November 2009 when it threw out a similar action in the case of Maher Arar (entry 97). I think too the Supreme Court with Kennedy now siding more and more with the Court’s 4 radical conservatives might well rule with the government on this. If it does, it will further damage the legal foundations of our country. The core of Bivens is that it allows an individual a means to seek redress from the government when that government has closed off all other avenues. That criminality and misconduct permeate the government’s “war on terror” is not a close question. Yet neither the Bush nor the Obama Administrations have made any serious attempt to investigate what was done, prosecute those responsible, and make whole those damaged by the government’s excesses. It is in such an environment that Bivens actions become critical, not just for the individuals directly involved, but for society as a whole. It seems strange to have to revisit the debates of the Founders and Framers of 200 years ago, but if the state can act without regard for the rights of some, then it can act without regard to the rights of all. This is the doctrine that the Obama Administration is promoting and extending.
123. On December 8, 2009, it was widely reported that the Transportation Security Administration (TSA), which is responsible for security at the nation’s airports, had, by mistake, posted its 93-page security manual online. Although in a partly redacted form, the redaction could be quickly undone and so the whole manual was available. That only 20% of checked bags were to be hand searched for explosives, limitations of x-ray machines, exemptions for law enforcement and certain other individuals, and that 25% of IDs were to be authenticated at busy times were just some of the information revealed. A partial justification given was that the TSA is without an administrator. Jim DeMint (R-SC), who was apparently more frightened by the prospect that TSA employees might unionize than by the threat of terrorism, put a hold on the Obama nominee Erroll Southers. However the hold up of the nomination like the leak speaks to a lack of emphasis by both parties on the real nuts and bolts of security issues. Grandstanding is so much easier.
124. On June 9, 2006, three Guantanamo detainees were found hanged in their cells: Yassar Talal al Zahrani, Mani Shaman Turki al Habardi al Tabi, and Ali Abdullah Ahmed. At the time, the commander of Guantanamo, Rear Admiral Harry Harris blamed the three calling their deaths an “act of asymmetrical warfare waged against us.” The military conducted an investigation, the results of which were made public in highly redacted form in August 2008 and April 2009. On December 7, 2009, the Seton Hall School of Law Center for Policy & Research released a damning report on the matter. Prisoners were under constant video surveillance. Guards patrolled the cellblock continually, were supposed to check for signs of movement every 10 minutes (even if prisoners were asleep), and do physical checks of ID bracelets several times a shift. Yet in a cellblock containing only 28 prisoners, the 3 would-be suicides were able to coordinate their actions (although they had been on the block less than 72 hours), and were in non-contiguous cells. They were able to tear up sheets and clothes to weave nooses, make mannequins to place in their beds, hang sheets to block the vision of guards, stuff gags down their throats, and hang themselves all without being noticed. They could do all this and not be found for at least 2 hours and probably substantially longer because when they were eventually discovered rigor had set in (despite Guantanamo’s tropical temperatures), their skin was cold, and post-mortem creasing in their neck (from the nooses) had occurred. The military’s investigation was so poor that guards were not placed under oath nor was any permanent record kept of who was even on duty on the night in question. Other potential witnesses to the camp’s activities were similarly not interviewed. While the military found that standard operating procedures had not been followed, no disciplinary action against anyone was suggested or pursued. The report concludes:
the true circumstances surrounding the detainees' deaths cannot be discerned from the investigative file or the statement of findings. Without a proper investigation, it is impossible to determine the circumstances of three detainees’ deaths.
In other words, we can’t say if these were suicides or murders. Nor can we know if this is due to a dismally poor investigation or a coverup. In January 2009, the fathers of al Zahrani and al Tabi filed a Bivens action (see item 122) in DC federal district court against 24 Bush era officials: al Zahrani v. Rumsfeld and US. On June 26, 2009, the government filed a motion to dismiss. The government erected a veritable house of cards of arguments for its position, a very evil and pernicious house of cards. It is worth the effort to run through the reasoning emanating from the Obama Justice Department on this.
It said that the under section 7 of the Military Commissions Act (MCA) the courts had been stripped of their jurisdiction to hear Constitutional claims of detainees. This is a type of argument that even the current radically conservative Supreme Court, ever jealous of its turf, has consistently rejected.
It referenced the more traditional objection to Bivens that the federal courts disfavor the extension of a Bivens action to “any new context or new category of defendants.” This is a kneejerk argument because this is the argument the government always uses in these cases regardless of its merits.
It is in the invocation of “special factors counselling hesitation” that the government puts forward some of its most slipshod ideas. It cites Sanchez-Espinoza, a Bivens action which failed on behalf of those killed, tortured, and raped by the Contras in Nicaragua. One of the concerns raised by this case was that Bivens actions by foreign nationals could be used to embarrass the US government, and the Court specifically left it to the discretion of Congress to decide whether such a remedy should exist or not. But the cases are not analogous because the detainees in question were wholly in the power of the US. The chain of responsibility and liability for them is clear, direct, and uncontestable.
The government also tried to hide behind the national security curtain.
This Court’s creation of a new damages remedy for allegedly unconstitutional military detention and interrogation practices would be “plainly inconsistent” with the political branches’ authority in this field.
The problem here is similar to one mentioned above. It is an attempt by the Executive to carve out a “no go” zone for the Judiciary even where Constitutional issues are involved. This is a separation of powers argument that up to now has fallen flat with the Supreme Court.
The government also plays the “detrimental effect on the military” card, that it would cause military officials to hesitate, demoralize their troops, and erode the authority of their commanders. This is portrayed as an emergency or battlefield situation, but it isn’t. The issue in question is how these detainees were treated over a period of years to their deaths while completely under the control of US military forces. How would an adherence to the law, the Constitution, and Geneva be “detrimental” to these forces?
It further asserts that if such a Bivens claim were allowed, it would lead to the release of “information which could aid future terrorists in their attempts to attack the United States.” This is a restatement of the old “Do what we say or you are all going to die” argument. But it is factually untrue. There is simply no conceivable information concerning al Zahrani and al Tabi that would fit into this category. They were captured shortly after 9/11 and died 3 1/2 years ago. Even if there were, DC federal courts have substantial experience in handling such matters. The only “aid” to terrorists that could come out of Bivens related discovery is evidence of government wrongdoing. The best remedies for that are for the government not to engage in such activity and to prosecute it where it occurs.
The government contended that Congress via the MCA, the Detainee Treatment Act (DTA), and the Reagan Act had already legislated in this area and provided for no Bivens remedy. However these acts require that the government treat detainees humanely. The government contends that even when this doesn’t happen those so damaged should have no recourse because the Congress did not provide them with one. Now the unstated issue here is torture, and what the government is asserting is that those it tortures cannot seek redress for their torture, period.
Switching from the tortured to the torturers and those who ordered and enabled torture, the government offers up an argument of “qualified immunity”. However, an assertion of qualified immunity is only applicable if a government official or employee “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” In the context of torture, such immunity can not exist, but this is nonetheless the government’s argument.
The government denied there were any Constitutional questions involved. A Constitutional interest is necessary for a Bivens action. Using a Scalia type argument, the government asserted that no 8th Amendment bar to cruel and unusual punishments was at issue because they had never been convicted of anything. The disingenuousness of this argument is breathtaking. The government refused to charge these men for 4 years and then used that failure to maintain that any torture that occurred did not result in an 8th Amendment violation. This is Kafkaesque. These men would not have been held so long without a de facto conviction of them by the government. That this was the result of an extra-judicial proceeding only increases the culpability of those involved, not diminishes it.
Echoing the Bush Administation contention that Guantanamo was a legal blackhole outside the reach of US courts, the Obama DOJ maintained that 5th Amendment protections of due process did not extend to detainees held there, despite Boumediene. It is a curious assertion that one part of the Constitution extends there but another does not. It is at once consistent with al Zahrani and al Tabi’s indefinite detention and at odds with their adjudication as enemy combatants by the Combatant Status Review Tribunal (CSRT) process.
Finally, the government raises an anti-Nuremberg defense, that those involved in the detention, torture, and deaths of these two detainees were not directly involved in these acts. The government would maintain the fiction that sanctioning and ordering torture (and other crimes) do not amount to a direct involvement in them, that where such things occur the chain of command and the responsibility that attaches to it suddenly no longer operates, and that if the facts concerning the treatment of al Zahrani and al Tabi are not yet known they never happened.
Whether the government succeeds in its motion to dismiss on traditional objections to Bivens, its motion exposes the toxic substance of the Obama Administration’s embrace of Bush era arguments for immunity for torturers and violators of the Constitution and denial of basic Constitutional protections to those indefinitely detained and tortured while wholly within the power of our government at Guantanamo where it exercises de facto sovereignty. There is no blackhole exception to our Constitution. This is not about whether al Zahrani and al Tabi were good or bad men. It is fundamentally about us, whether we believe in the rule of law and whether we accept or reject torture.
On December 14, 2009, the Supreme Court denied cert in a similar case Rasul v. Myers which left the DC Circuit opinion intact. This found for Rumsfeld and ten military officers on the grounds that they did have immunity for torture and religious bias committed against the plaintiffs during their incarceration at Guantanamo. We have fallen far as a country when our officials order and promote torture and our courts give them cover for this.
A January 18, 2010 article in Harpers by Scott Horton relates that four guards who were on duty the night of the deaths report that 3 prisoners were removed, one by one, and taken to a nearby facility nicknamed Camp No (because its existence was always denied). Shortly, before the deaths of the 3 detainees were “discovered” a paddy wagon returned from Camp No and pulled up to the infirmary, not the cell block. When the alarm sounded with the “discovery” of the deaths, guards with clear views of the buildings noted that they saw nothing moved from the cell block where the suicides were supposed to have occurred to the infirmary where the bodies magically appeared. The next morning, the camp commander called a meeting of the guards. He told them that while the 3 detainees had died by swallowing rags, the official report would say that the three had hanged themselves. They were instructed not to question this report in any way. This is the clearest evidence we have so far of both murder and a coverup. What is interesting, and disturbing, is that this information was conveyed to the Obama Justice Department which dealt with it in a dilatory fashion. When pressed about its progress, the DOJ announced it was closing its investigation. Murder, coverup, and now a further coverup spanning two Administrations. This suggests that the killings of al Zahrani, al Tabi, and Abdullah Ahmed are only the tip of the iceberg of such major league nastiness that even federal law enforcement (NCIS, FBI, DOJ) felt impelled to rush to obstruct justice to keep it from coming out.
125. On October 9, 2009, in what has to go down as one of the most nonsensical events of his Presidency, Barack Obama was awarded the Nobel Peace Prize for “his extraordinary efforts to strengthen international diplomacy and cooperation between peoples.” What was perhaps most extraordinary about these efforts was that they didn’t exist. The truth is that the Norwegian Nobel Committee awarded Obama the prize not for what he had done but for who he was not, George Bush. It illustrated how poorly most Europeans, and certainly the 5 members of the selection committee, understand American politics.
On December 10, 2009, in his acceptance speech in Oslo, Obama rewarded their naïveté by using the occasion to embrace Bush’s War on Terror and fold it into the framework of a “just war,” cast the war in Afghanistan as a “humanitarian” effort, and promote his Iran policy declaring: “Sanctions must exact a real price. Intransigence must be met with increased pressure.” All in all it was a thoroughly neocon peformance with Orwellian moments, such as when he referred to the military as “wagers of peace.”
126. Blackwater (now renamed Xe) is a very strange and very dangerous company. It was founded by a reactionary Christianist and former Navy Seal Erik Prince in 1997. In 2001, it did only $737,000 in business with the government. 9/11, the War on Terror, and Dick Cheney’s paranoia were a godsend to it (and Prince), and it soon had security contracts worth hundreds of millions of dollars a year. Prince was able to effect this vast expansion by hiring, not just international mercenaries, but far more importantly former special forces people and CIA officers. Basically, the government spent millions of dollars training these and then Prince could hire them away, pay them several times what they had been making, and contract them back to the government at even higher rates. Curiously, the government never seemed to mind this or the company’s often lawless and cowboy style which led to a succession of scandals.
A November 23, 2009 article by Jeremy Scahill in the Nation and a portrait of Prince for the January 2010 edition of Vanity Fair explain why. In the Vanity Fair piece, Prince describes himself as a CIA asset. Blackwater participated in assassination and drone programs with the CIA. The benefit to the CIA was that it could send the people they would have sent anyway to do these things, but since they were now “privatized”, the CIA could deny involvement. The catch was that these activities were still supposed to be reported to the appropriately cleared members of Congress for oversight. During the Bush Administration, this never occurred. Obama’s Director of Central Intelligence Leon Panetta ended the assassination program in June 2009 and briefed Congress on it on July 8, 2009 (see entry 68). When Blackwater’s connection to the ongoing drone program became known, Panetta cancelled that contract as well in December 2009.
What the Scahill article reported was that Blackwater had parallel deals with JSOC (the Joint Special Operations Command). There are several interesting aspects about these programs. Obama’s commander for his Afghanistan surge is Stanley McChrystal who headed JSOC from September 2003 to June 2008. Because these programs are run through the Department of Defense (DOD), they do not have the same Congressional reporting requirements. In fact, they don’t have any. And the programs, unlike those with the CIA, appear to be ongoing.
127. On December 4, 2009, Morris Davis was fired by the Congressional Research Service (CRS) of the Congress for an op-ed he wrote on November 11, 2009 in the Wall Street Journal. He was the chief prosecutor at Guantanamo before resigning his position on October 5, 2007 in protest over government interference and politicization of the judical process there. In the WSJ piece, he called Obama’s decision for a two tiered approach to Guantanamo prosecutions (in federal court and before the discredited military commissions in which he had participated) a mistake. He wrote the editorial as a private citizen and his work at the CRS did not involve areas related to Guantanamo. As such, he was covered by First Amendment protections. CRS director Daniel Mulhollan has refused to re-instate Davis. On December 14, 2009, the ACLU announced it would file a law suit on Davis’ behalf. The CRS maintained in a letter also of December 14, 2009 that Davis had undermined the “appearance of objectivity and non-partisanship” of the CRS. This is laughable for any number of reasons. Davis resigned under Bush and wrote his op-ed under Obama. How less partisan could you get? As for objectivity, apparently being intimately knowledgeable about the military commissions process and so being able to assess them better than almost anyone else in the eyes of the CRS disqualifies him precisely for this reason. This is real upside down thinking. But not unexpected. CRS reports are seldom cited and for good reason. They are by and large an inferior, mediocre product. It stands to reason that someone who might improve their quality would have difficulties there.
128. On December 1, 2009, AIG announced it would reduce its debt to the government by $25 billion by turning over two of its international companies, American Life Insurance and American International Assurance to the Fed which would take them on as two special purpose vehicles. “AIG continues to make good on its commitment to pay the American people back,” the company’s current megalomanic blowhard of a CEO Robert Benmosche said.
This is another in a long list of sad jokes and sweetheart deals engineered by Team Obama. Basically, AIG dumped two divisions it couldn’t sell on the Fed. It gets to write down its debt by $25 billion, although it is far from clear that the two companies were actually worth that much (remember AIG could not find buyers for them). The main difference to taxpayers is that they will now be on the hook through the Fed as opposed to the Treasury. Robert Benmosche will no doubt use this as an excuse to jack up bonuses. And unlikely though it is, just to top off this non-sense, if the Fed should ever unload these white elephants for more than the original $25 billion, AIG, not the taxpayer, will get the difference. This is our crony capitalist system at its worse. It is all a shell game shuffling bad debt and unrealistically priced assets back and forth. The only constant is that it is always the taxpayer who ends up looted.
129. As part of the healthcare debate Byron Dorgan (D-ND) offered an amendment to lower prescription drug costs by allowing for re-importation of drugs from countries, such as Canada and Mexico. The amendment had wide support but was ultimately voted down on December 15, 2009. How this happened is instructive. First, the amendment was smeared by the White House. The FDA sent a letter to conservative Senators reiterating Bush-era arguments about “safety” issues although the drugs are most often produced in the same plants on the same production lines as their much higher priced US counterparts. When Dorgan contacted the FDA head Margaret Hamburg, she said she knew nothing about the letter. Yet it was Hamburg’s name on the letter and used in quotes in news stories on it. Meanwhile Senate leadership in the persons of Senators Reid, Baucus, and Dodd struck a deal to kill the Dorgan amendment in exchange for closing the prescription donut hole in Medicare Part D. The problem here was that BigPharma had not signed off on it. So the Dorgan amendment which was meant to get around the refusal of Congress to allow insurers, like Medicare, to negotiate prices with drug manufacturers was shot down and replaced with a non-deal deal. In other words, this was all kabuki (as usual at the expense of ordinary Americans) directed by the Obama White House to protect its own original deal with BigPharma.
130. On December 24, 2009, Christmas eve and consequently one of the slowest new times of the year, Treasury Secretary Geithner announced that mortgage giants Fannie and Freddie which remain in government receivership would have unlimited credit lines for any losses they incurred over the next 3 years. Geithner had until December 31 to make a decision without Congressional authorization. Each will also be allowed to increase the portfolio of mortgages it holds from the $700 billion range to $810 billion next year followed by a 10% decrease in 2011. Both Treasury and the Fed were winding down programs where they were purchasing Fannie and Freddie mortgage backed securities. First, Fannie and Freddie account for something like 80% of the current US housing mortgage market. This is a reflection of the fact that banks continue to refuse to re-initiate lending and raises again the question why the government directed so much money into such a corrupt and unproductive financial sector. Second, this looks like a stopgap to keep the housing market from collapsing before the 2010 elections. It does not fix the problem as only cramdowns on existing mortgages would do. Third, increasing their portfolio limits shows that the two government sponsored entities (GSEs) were only moving mortgages recently because of Fed and Treasury interventions, and once these end they will not be able to securitize and sell their inventory. This is an indication of both the after effects of the bursting of the housing bubble but also that the bubble has moved on from housing to stocks and commodities. Fourth, removing the debt limit suggests that foreclosures are expected to increase and that the GSEs have very large exposures related to these. What we are seeing is election politics meeting an attempt at Japanification of the real estate sector.
To top it off, it was also just announced that, despite the ongoing troubles at Fannie and Freddie and the prospect of future large losses to be dumped on US taxpayers by them, their CEOs will receive $6 million a piece in 2009. This largesse in the face of poor performances reinforces the view that Obama Administration policy remains bank and investor oriented, and that troubled homeowners continue to be on their own.
131. On December 31, 2009, judge Ricardo Urbina in DC federal district court dismissed the government’s case in US v. Paul Slough et al. In brief, on September 16, 2007, Blackwater guards working for the State Department opened fire without warning or provocation on Iraqi civilians in Nisoor Square in Baghdad killing 17 and wounding 24. The Blackwater employees could not be tried by the US military because they were technically civilians. They could not be tried by the Iraqi government because shortly before his ignominious departure from Iraq in June 2004 Paul Bremer, head of the Coalition Provisional Authority (CPA), issued Order 17 which gave unlimited immunity from Iraqi law to all contractors working in Iraq. At the time of the Nisoor massacre, this order had not been rescinded by the successor Iraqi government.
This left only a federal avenue for investigation and prosecution. The DOJ and FBI’s work was complicated by the State Department. In its investigation of the incident, State compelled as a condition of their employment the Blackwater guards to make statements about what happened. This raised Garrity issues. Garrity v. New Jersey (1967) held that statements so compelled enjoyed 5th Amendment protection against self-incrimination and so could not be used as the basis for any subsequent investigation and prosecution. In this instance, it meant that the government could go forward with its case but it had to be very careful not only not to use anything from these statements but to develop very clear evidentiary chains showing that they had used essentially nothing from the State Department investigation, i.e. fruit of the poisoned tree. This was not arcane or obscure. It was obvious and discussed at the time.
In throwing out the case, judge Urbina noted that federal prosecutors had trampled the Garrity protections in almost every way imaginable.
In their zeal to bring charges against the defendants in this case, the prosecutors and investigators aggressively sought out statements the defendants had been compelled to make to government investigators in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government’s trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team on Garrity and Kastigar issues, that this course of action threatened the viability of the prosecution. The government used the defendants’ compelled statements to guide its charging decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, to obtain the indictment in this case. The government’s key witnesses immersed themselves in the defendants’ compelled statements, and the evidence adduced at the Kastigar hearing plainly demonstrated that these compelled statements shaped portions of the witnesses’ testimony to the indicting grand jury. The explanations offered by the prosecutors and investigators in an attempt to justify their actions and persuade the court that they did not use the defendants’ compelled testimony were all too often contradictory, unbelievable and lacking in credibility.
In other words, the government blew up its own case. Now this could be mindboggling incompetence but the thoroughness with which it was done suggests deliberate sabotage. Much of this took place under the Bush Administration, but in May 2009, the Holder DOJ, knowing it was in trouble, tried a Hail Mary arguing that the statements made by the Blackwater employees were not immunized. Needless to say this did not fly. What Holder should have done is come clean in May, blame the Bush Administration for botching the case (and this really was an epic botch), initiate disciplinary actions against those involved, and move on. Instead he took over a Bush Administration screw up and made it his own.
132. Jonathan Gruber is an economics professor at MIT and Director of the healthcare program at the prestigious National Bureau of Economic Research (NBER). His MIT bio quotes the Washington Post which describes him as “possibly the [Democratic] party's most influential health-care expert.” In 2009, he received two contracts from the Department of Health and Human Services (HHS) worth $392,600 to consult on Obama’s healthcare plans. During the course of the debate, he wrote op-eds and opined widely in the media as the Administration’s chief and most influential academic defender. However Gruber did not disclose, except in a handful of cases, that he was a paid consultant and his status remained unknown in most of the media and to the public until January 7, 2010.
133. One of the most scandalous aspects of the Bush Administration’s bailout of insurance giant AIG was the paying out at par (100 cents on the dollar) $62.1 billion in swaps held by its Financial Products unit. The primary beneficiaries of this action were Goldman Sachs and various European banks, like Deutsche Bank and Société Générale. This decision was made in November 2008 while Timothy Geithner was then president of the NY Fed. On November 24, 2008, Obama chose Geithner to be his Secretary of Treasury, at which point Geithner supposedly recused himself. It wasn’t just the payment, its size or to whom it was made, that was disturbing, but, as reported in a January 7, 2010 Bloomberg article, that the NY Fed directed AIG to illegally hide information on the payments in its required filings to the SEC. The identities of the payees did eventually come to light several months later on March 15, 2009. The Administration line is that Geithner had no part in this cover up because he had recused himself even before the official announcement of his nomination for Treasury. But when the identities of the payees became known in March and Geithner’s involvement was made known, no recusal argument was made then. So it is hard to believe that Geithner was not involved with such important decisions or that he was involved in some but not others.
134. A January 8, 2010 article by Charlie Savage of the New York Times reports that the Obama Administration has committed to a policy of stealth signing statements. Signing statements are not Constitutional. A President can veto a bill or sign it. If signed, he is obligated to execute all aspects of the bill. He does not get to pick and choose (a line item veto). If he thinks some part of a bill is unConstitutional, he can go to the courts to have it overturned or he can seek changes through further legislation.
Signing statements have been around since the 19th century. During most of that time, they were rare and usually used as a notification that in executing a law the Executive was not ceding or implying any cession of powers to the legislature. Under Bush, signing statements became declarations that the Executive would not carry out or enforce specific provisions detailed in the signing statement (a line item veto). Bush used signing statements more than all of his predecessors combined.
Rather than curtailing the use of signing statements, the Obama Administration has added its own twist to them taking them to a whole new level. The Administration will not repeat a signing statement if a provision is included again in later bills. The original signing statement is to extend to these as well. More than this, if the Administration raises objections to a provision outside the venue of the signing statement, no signing statement will be issued but the Administration will act as if one has been made. In short, Obama is saying that he will only obey and execute those provisions of the law which he wishes to but leaves it to the country to guess which provisions he will not obey and execute. This is another example of the Obama Administration’s contempt for the rule of law and its retention and extension of a Bush era abuse.
135. On January 5, 2010, the DC Circuit Court of Appeals denied the habeas petition of Ghaleb Nassar al-Bihani. The opinion was written by Janice Rogers Brown, one of the most controversial and radically conservative of George Bush’s appointees. Also on the panel was Brett Kavanaugh whose job during the Bush years was to recruit and vet such reactionary judges for the federal courts. Kavanaugh had the dubious distinction of being the most unqualified judge to sit on the DC Circuit in 100 years. Largely forgotten now, on June 27, 2007, Senator Patrick Leahy (D-VT) and chair of the Senate Judiciary Committee sent a letter to Gonzales’ DOJ referring Kavanaugh for criminal investigation for lying during his confirmation concerning his having no involvment in developing the Bush Administration’s policy toward “enenmy combatants”. Needless to say the Gonzales did not pursue the matter. Both the Washington Post and NPR reported that he had taken part in at least one meeting on this subject in 2002. Rounding out the panel was Stephen Williams, a Reagan appointee.
The facts are that al-Bihani was a Yemeni who, a few months before 9/11, joined a non-al Qaeda Arab brigade which fought with the Taliban against the Northern Alliance in Afghanistan. Not only were his links to al Qaeda tangential to non-existent, he wasn’t even a footsoldier. He was the cook. He surrendered with his brigade and was transferred to Guantanamo, that storehouse of the “worst of the worst,” in 2002 and has been there ever since.
al Bihani is another egregious case in a long line of them stemming from the gross incompetence and criminality of the Bush Administration in how it set up Guantanamo, who it sent there, whom it kept there, and why. At its core, al Bihani is about a prolonged and pointless imprisonment, one which the Obama Administration is fighting to maintain. In this it was aided and abetted by the Ciricuit Court of Appeals which did not so much deliver a legal opinion as went out on a right wing ideological binge, worthy of the contorted and distorted thinking of John Yoo.
Brown justified this spectacle by extracting a line from O’Connor’s opinion in Hamdi v. Bush (2004): “The permissible bounds of the [enemy combatant] category will be defined by the lower courts as subsequent cases are presented to them.” What this usually means is that the high court is leaving it to the lower courts to work out the details and specific procedures. What Brown uses it for is a license to rewrite large chunks of US jurisprudence.
al Bihani’s lawyers argued that his imprisonment violated the international laws of war since he was a non-combatant (a cook), his unit was never at war with the US, and the conflict he and his unit were involved in against the Northern Alliance ended with the successful US invasion of Afghanistan. Now a normal court would key in on one or more of these points for disagreement or find that al Bihani had misapplied the international laws of war to his situation, but Brown goes much, much further. She asserts that in the War on Terror the US can simply set aside the international laws of war.
Before considering these arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. This premise is mistaken.
In effect, Brown has made a claim that not even the Obama Administration was making. Talk about judicial activism.
Then, either demonstrating an incredible ignorance of events in Afghanistan or a selective memory for them, she looks at the details, as promised, of al Bihani’s case. She found that al Bihani being a cook constitutes being a part of and supporting those whom, as per the AUMF, “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” As I have pointed out before, even the Obama DOJ finds the “material support” charge dubious as a legal vehicle (see item 111.). Nor was al Bihani ever a member of either al Qaeda or the Taliban so it is difficult to see where the being a “part of” comes in. More than this, if a cook can be detained without trial for years than so could about half the population of Afghanistan which gave varying degrees of aid and support to the Taliban. At the same time, there are plenty of warlords who were allied with the Taliban (and did substantially more than cook) who are now in the Karzai government. But Brown never addresses any of the inconsistencies in how al Bihani has been treated as compared to these others. The point that she wants to make is that a foreign citizen in a foreign country can be detained by US forces in the Global War on Terror for almost any reason and for almost any length of time. This is not a legal theory. It is a policy statement.
As a result, Brown’s views on the procedural issues of al Bihani’s habeas petition should come as no surprise. She writes:
in the shadow of Boumediene, courts are neither bound by the procedural limits created for other detention contexts nor obliged to use them as baselines from which any departures must be justified.
Boumediene established a Constitutional right to habeas for Guantanamo detainees. To be meaningful habeas procedures have to be substantial. Brown, however, once again uses the lack of explicit instructions from the Supreme Court as carte blanche to create her own ideologically driven much narrower standards and effectively gut the habeas process. Brown argues that the government need only base its case on a preponderance of the evidence. This is the same standard used by the Combat Status Review Tribunals (CSRTs) which determined that al Bihani was an unlawful enemy combatant and would mean in practice that the federal courts would accept their findings. The problem is that the CSRTs were shams and caricatures of due process. Yet Brown maintains they are sufficient to pass the burden of proof to al Bihani and require that he adhere to a higher standard of proof than that of the government. This is called stacking the deck. As for al Bihani’s motion for an evidentiary hearing and discovery, two matters which are extremely pertinent to the habeas petitions of Guantanamo detainees, given the reports of military prosecutors about how poorly and sloppily the government controlled and managed evidence there, these Brown simply dismisses out of hand.
In case, you may think that I have portrayed Brown in an unfair light or that her views are less than extreme, I would cite her own words in a concurring opinion which she also wrote:
War is a challenge to law, and the law must adjust. It must recognize that the old wineskins of international law, domestic criminal procedure, or other prior frameworks are ill-suited to the bitter wine of this new warfare. We can no longer afford diffidence. This war has placed us not just at, but already past the leading edge of a new and frightening paradigm, one that demands new rules be written. Falling back on the comfort of prior practices supplies only illusory comfort.
This is the same brand of thinking which called the Geneva Conventions quaint. It now applies itself to the most fundamental of all legal rights, that of habeas corpus. It tells us to be afraid and that we must sacrifice our rights for our safety. But in the end, it cannot promise safety. It can only promise to take away our rights.
136. On January 19, 2010, Vice President Biden and Democratic Congressional leaders: House Speaker Nancy Pelosi (D-CA), House Majority leader Steny Hoyer (D-MD), Senate Majority leader Harry Reid (D-NV), together with Obama’s OMB director Peter Orszag agreed to establish an 18 member panel ostensibly to cut government deficits. The true purpose is to slash entitlements (Medicare and Social Security), a policy that Orszag has long advocated. The true authors of this idea are Biden and Senators Kent Conrad (D-ND) and Judd Gregg (R-NH). Nor would this be a toothless commission as so many are. Its recommendations would go directly to the floor of the two houses for an up or down vote with no hearings or amendments allowed. The Obama Administration first tried to sell cutting entitlements back in February 2009 (item 25) shortly after taking office but went on to concentrate on healthcare after the negative reaction this effort received.
It is little short of amazing that the very day Democrats lost Teddy Kennedy’s old seat in Massachusetts, one of the most liberal states in the union, to a right wing Republican with Teabagger (Don’t touch my Medicare!) connections that Obama and the Democrats would sign off on such a politically suicidal plan.
On January 26, 2010, the Senate killed this atrocious idea 46-53 (60 votes needed) in an unusual bipartisan vote.
On February 18, 2010, Obama went ahead and formed by executive order a deficit commission on his own. It was supposed to come up with recommendations to balance the federal budget, minus interest payments, by 2015. Its real purpose to serve as a vehicle to slash Social Security and Medicare was made clear in the following:
the Commission shall propose recommendations that meaningfully improve the long-run fiscal outlook, including changes to address the growth of entitlement spending and the gap between the projected revenues and expenditures of the Federal Government
Note while entitlements are the only programs mentioned specifically, a gold-plated military, senseless wars, and taxbreaks for the rich and corporations are not.
Alan Simpson, the former conservative Senator from Wyoming and longtime critic of Social Security was named one of the co-chairs. The other was Erskine Bowles, a pro-business Clinton conservative, who was involved as his Chief of Staff in crafting the 1997 Balanced Budget Act. He is currently the president of the state university system in North Carolina. He is also an investment banker and on the board of the investment bank Morgan Stanley.
12 of the commission’s 18 members were to be seating members of Congress. The partisan split was to be 10-8 Democratic. This is a ludicrous project but shows how committed the Obama Administration is to making major cuts at a time of economic crisis in the two most popular programs in government and the two most important pieces of the social safety net. It is unsure if the Republicans will even participate. Because of the lack of Congressional enabling legislation, it is likely the commission’s recommendations will die in the Congressional process, if they are even taken up there. Choosing 12 seating members of Congress looks to transfer the failures there to the commission. If Congress could not fix this on its own, how will putting a bunch of members on a weak commission change anything? While the commission is nominally majority Democratic, its composition looks to be heavily pro-business, anti-ordinary American in makeup. This is another example of Obama’s embrace of Bush’s destructive habit of not only buying into bad policy but persisting repeatedly in it.
137. As reported on January 25, 2010, Obama announced a three year budget freeze. This would be on discretionary spending, but would not affect defense, homeland security, national security, and veterans. Savings of $250 billion over ten years were expected. In reality, this would amount to a cut in the first year of 10-15 billion dollars. It is hard to work out the optics on this. As the only growth in the economy currently comes from government spending and with 15 million unemployed and 25 million un- or under- employed, the freeze sends the wrong message. On the other hand, the sums involved when put against the whole federal budget are small so it is unlikely to appease deficit hawks. It suggests that in the run up to the State of the Union (SOTU) on January 27, 2010, the White House is flailing both politically and economically in reaction to the loss of Ted Kennedy’s seat in Massachusetts and what that portends for November and its inability to get its healthcare bill, as bad as it is, enacted before the speech.
138. Via this January 28, 2010 New York Times story, another sign of just how in the pocket of corporations Obama is can be seen in his move to privatize transportation to and supply of the International Space Station. As Charles Bolden, Obama’s NASA director, put it so succinctly: “What NASA will focus on is facilitating the success of — I like to use the term ‘entrepreneurial interests’”. NASA was once an agency that did science and fired the imagination. It was a national endeavor. Now it will have rockets sporting corporate logos.
139. A January 29, 2010 Newsweek story relates that the long awaited and long delayed Justice Department’s Office of Professional Responsibility (OPR) report on John Yoo and Jay Bybee, authors of the infamous Bush Office of Legal Counsel (OLC) torture memos, had its original findings changed to preclude sanctions against the two for their involvement in justifying torture. Initially, the report found that they had violated their professional obligations. For this, Yoo who is a professor at UC Berkeley’s Boalt Hall School of Law, would have faced disbarment. Bybee who, as a reward for his work on the memos, was given a federal appellate court judgeship could also have faced impeachment. However, career Justice lawyer David Margolis reviewed the report and watered down its recommendations. In Washington circles, Margolis has a solid reputation, but he is hardly an impartial observer. During the Bush era US Attorney scandals, Margolis played father confessor to Kyle Sampson, then Attorney General Alberto Gonzales’ Chief of Staff and Monica Goodling the White House liaison. Both went to him before accessing the DOJ’s regular chain of command. Neither suffered any official consequences for their actions.
The story is further complicated because at the time Margolis was reviewing the OPR report in December 2009, the Justice Department (DOJ) on December 3, 2009 was filing an amicus brief on Yoo’s behalf in a civil Bivens action brought by Jose Padilla on January 4, 2008 (item 122). In addition, the DOJ was paying for Yoo’s defense.
This represents not only a monumental conflict of interest, but more, a subverting of the course of justice. It now looks like the long delays in the release of the OPR report were to avoid its initial findings being made part of the Padilla case. Then, just to make sure, those findings were changed by a dependable DOJ insider even as the DOJ submitted its own brief in the Padilla case defending Yoo. The Obama Administration came in promising to clean up the politicized, unprofessional mess Bush had left at the DOJ. Instead it is using its own dubious practices to defend that mess and protect those who created it.
The OPR report was finally released in a late Friday news dump on February 19, 2010. As previously reported, Margolis had successfully spiked the findings which would have led to penalties against Yoo and Bybee, another case of our elites protecting their own no matter how thuggish and culpable the actors.
140. A January 26, 2010 story in the Washington Post by Dana Priest reported
After the Sept. 11 attacks, Bush gave the CIA, and later the military, authority to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests, military and intelligence officials said. The evidence has to meet a certain, defined threshold. The person, for instance, has to pose "a continuing and imminent threat to U.S. persons and interests," said one former intelligence official.
The Obama administration has adopted the same stance. If a U.S. citizen joins al-Qaeda, "it doesn't really change anything from the standpoint of whether we can target them," a senior administration official said. "They are then part of the enemy."
The problem is that this sets the Executive branch up alone as judge, jury, and executioner of American citizens. There is no due process, no checks or balances, just another “Trust us” from a government that has shown repeatedly that it cannot be trusted and that the Framers themselves never thought, even at the best of times, should be trusted to make such decisions.
In a follow up story, on February 5, 2010, Newsweek reported
strikes specifically targeting Americans must first be approved by a secret committee made up of senior intel officials and members of the president's cabinet (it's not known which ones). The president himself does not have to sign off on kill orders.
The Pentagon’s JSOC (Joint Special Operations Command) is rumored to have an assassination list containing the names of 3 US citizens and the CIA 4. One of those on both lists is Anwar al-Awlaki, an American Moslem cleric who has advocated violence against the US and who has been linked to both Major Nidal Hasan, the military psychiatrist who went on a shooting spree at Fort Hood, Texas, killing 13 (November 5, 2009) and Umar Farouk Abdulmutallab, the underpants bomber (December 25, 2009). In December 2009, al-Awlaki was the target of a predator strike in Yemen. He escaped. al-Awlaki affirms his connections to the two men but specifically denied organizing their attacks. This is an important point because in a case involving the Ku Klux Klan Brandenburg v. Ohio (1969), the Supreme Court drew the line between speech advocating overthrow of, or violence against, the government (protected by the First Amendment) and action to these ends (which was not).
Targeting Americans who know bad guys and who say reprehensible things may satisfy some reflex desire we may have for vengeance, but it is bad law, bad policy, and unConstitutional. Our Constitution allows al-Awlaki to say what he says, no matter how much we dislike it or disagree with it. It does not allow him to be a member of al Qaeda or engage and participate in attacks against this country. If our government wishes to assert that he has gone beyond words to actions, then it needs to establish that in a court of law, and not in a Star Chamber proceeding which even the President won’t take responsibility for. And those assertions do need to be tested. As the cases of both the Canadian Maher Arar and the German Khalid El-Masri show, the CIA does get it wrong. Quite simply the strength of our law and Constitution is to be found not in how it treats the best of us but the worst, not in those most loved but in those who are the least popular among us.
On April 7, 2010, it was confirmed that President Obama had authorized the CIA to kill al-Awlaki. The assassination of American citizens on the say so of the President without any due process is an unConstitutional power not even the Bush Administration claimed.
On June 25, 2010, in a Washington Post article, John Brennan, Obama's chief counterterrorism advisor, stated that the US was targeting dozens of US citizens abroad.
"If an American person or citizen is in a Yemen or in a Pakistan or in Somalia or another place, and they are trying to carry out attacks against U.S. interests, they also will face the full brunt of a U.S. response. And it can take many forms."
It is important to note that while Americans are legitimate targets on a battlefield. The world, including the US, can not be simply defined as a battlefield as the Administration would do. This means that Obama is asserting the right to kill any American he deems a threat anywhere, without charge, without evidence, without the Constitution.
In reaction to a lawsuit brought by the ACLU and Center for Constitutional Rights on behalf of Awlaki's father contesting the kill order on his son, an American citizen, the government in a brief filed just after a court imposed September 24, 2010 deadline argued that the suit should be dismissed on state secrets grounds. This Administration acts more like Kafka and speaks more like Orwell by the day. It seems futile to point out that a state secrets defense can not be used to hide or shield illegal acts in light of an Adminstration which considers the rule of law little more than an empty campaign slogan.
On December 7, 2010, in a notable cave, DC Federal District Judge John Bates threw out the Awlaki suit. Bates reasoned
To be sure, this court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the executive's unilateral decision to kill a U.S. citizen overseas is constitutionally committed to the political branches and judicially unreviewable
That is an incredible and disheartening statement from a federal judge. The Founders profoundly distrusted unchecked power, but here we have a perfect example of it. First Amendment protected speech is free, whether we agree with it or not, whether it occurs in this country or not. And all the government has ever alleged against Awlaki is that it does not like his speech, even though that speech, if it occurred in this country would be protected. Yet on this basis it is sanctioning an extra-judicial execution and a federal judge has nothing to say about it. But we must all ask ourselves if 5th and 14th Amendment due process protections can be nullified once we step outside our borders, how long will it be before they are chipped and rationalized away within them?
We are already far down the slippery slope. The Constitution demands a declaration of war but all we have is a vague AUMF (Authorization for the Use of Military Force). No battlefield is designated, no enemy is identified. It has no limits and no endpoints. Anyone anywhere can be singled out, even, as here, an American citizen, and sentenced to death. By whom, for what, the government has to show no one. We are just supposed to trust them. But looking at our government, both Administrations Democratic and Republican, when was the last time you found them worthy of your trust?
On September 30, 2011, Obama succeeded in murdering al-Awlaki, the extra-judicial execution of a US citizen.
141. A February 13, 2010 story chronicles how Immigration and Customs Enforcement (ICE) agents recruit undocumented workers as informants by promising them visas, put them in dangerous situations, don’t deliver the promised visas, and then threaten them with deportation if they try to stop. This program spans both the Bush and Obama Administrations. It has been further complicated by bureaucratic infighting as agencies vie for funds in the War on Terror. Informants were pressed by ICE agents to come up with information on terrorist activities or be deported even when there was simply nothing to report. This is a story about betrayal because no informants are, in fact, awarded visas for their cooperation. It is also about stupidity because now that this is known there is exactly zero incentive for informants to provide ICE with good and useful information. ICE is part of the Department of Homeland Security perhaps the worse organized and worse run department in government.
142. As of March 2, 2010, more than a year into his Administration, the 5 member Privacy and Civil Liberties Oversight Board, which grew out of a 9/11 Commission recommendation, “has no members, no staff, and no office.” This is unsurprising in an Administration which has chosen to continue all of the surveillance and domestic spying programs of the Bush Administration along with their abuses. An independent Board with a full-time chairperson and subpoena powers is not viewed by Obama as a defender of the people’s rights but as an inconvenience to his power.
143. On February 24, 2010, the Central Falls school board in Rhode Island fired all 93 teachers and staff at a poorly performing high school. The district had demanded that teachers work substantially longer hours with little increase in pay. Negotiations with the teachers’ union broke down. The school is in one of the poorest areas of the state with a median income of $22,000 a year, a highly transient population, and high unemployment. 65% of students were Hispanic for whom many English was a second language, and a quarter of whom needed ESL services. “Half the students are failing every subject, with 55 percent skilled in reading and 7 percent proficient in math.” In addition, the school had gone through 5 principals in 6 years. So basically this is a school where the district was not willing to provide the resources (pay teachers) and had failed to provide leadership (5 principals in 6 years) but was willing to blame the teachers. On March 1, 2010, Obama naturally blamed the teachers too.
"If a school continues to fail its students year after year after year, if it doesn't show signs of improvement, then there's got to be a sense of accountability," he said. "And that's what happened in Rhode Island last week…”
Yes, we should place the onus on the teachers who did not create this mess but have had to deal with it on a daily and yearly basis, and this from the same President who did not demand any similar accountability from bank CEOs who lost trillions in the frauds and speculations which they did create.
144. A March 15, 2010 story reports that the Obama Administration revoked the 10 year, multiple entry visa of Edward Horgan. Horgan was a career officer in the Irish Defense Forces and has served as a UN peacekeeper and election monitor in several countries. His sin is that he is an opponent of extraordinary rendition and cofounded a group Shannonwatch which protested the use of Shannon airport as a transit point for such purposes. What Obama is engaging in is the same kind of heavy handed censorship that we used to criticize former Soviet bloc states for. That is what this Administration has come to. It would rather protect the torturers than those who bring their crimes to light.
145. On July 8, 2009, the Obama's Office of Management and Budget (OMB) criticized HR 2701, the House version of the 2010 Intelligence Authorization Act. Despite all of the abuses and failures involving the intelligence community during the Bush years, the OMB stated:
The Administration strongly objects to section 321, which would replace the current “Gang of 8” notification procedures on covert activities. There is a long tradition spanning decades of comity between the branches regarding intelligence matters, and the Administration has emphasized the importance of providing timely and complete congressional notification, and using “Gang of 8” limitations only to meet extraordinary circumstances affecting the vital interests of the United States.
In other words, the Obama Administration wanted to keep things as they were with no effective Congressional oversight of intelligence activities, because that worked out so well in the past. In fact, the OMB threatened a veto:
If the final bill presented to the President contains this provision, the President's senior advisors would recommend a veto.
In response, the House watered down its proposals and passed a bill on February 25, 2010. It kept the non-functioning Gang of 8 system in place but required the President to keep Congress informed in a timely fashion, especially of covert activities initiated by the Executive alone. On March 16, 2010, OMB director Peter Orszag repeated the White House's veto threat. As Glenn Greenwald notes, both this and the previous item came as Obama celebrated Sunshine Week declaring that his Administration was "the most open and transparent ever," an Orwellian claim but one this President is increasingly given to.
146. Wikileaks is an organization which funnels whistleblower documents and reports to the web. The contents of these are highly embarrassing to both the countries and the corporations from which they originate. Rather than stop these activities, those involved in them, however, would prefer stopping wikileaks. Among these is the US government under both the Bush and Obama Administrations, especially their defense and intelligence components. On March 15, 2010, wikileaks released a March 18, 2008 report by the US Army Counterintelligence Center on how to destroy wikileaks by exposing and prosecuting its whistleblowers. Showing a peculiar lack of self-awareness the report also stated how some of the planet's biggest and most controversial human rights violators: "China, Israel, North Korea, Russia, Vietnam, and Zimbabwe" had sought to block or attack the organization. The authors found no incongruity in adding the US to that illustrious, and illustrative, list. A March 26, 2010 wikileaks editorial recounted US and Icelandic surveillance of its members. The group was in Iceland to support prospective legislation to afford greater protections to whistelblower groups like theirs in the wake of that country's banking scandals and economic collapse. These actions are about secrecy, an ongoing lack of any meaningful oversight, and above all a complete absence of accountability. In this, the Obama Administration is following in the footsteps of its predecessor, and trying to shoot the messenger rather than change the message.
147. Under Bush, the Fish and Wildlife Service (FWS) which is responsible for carrying out the Endangered Species Act was led by political hacks who, in the interests of developers, ignored the science --all in a push to remove, or keep off, species from federal protection. In its first year in office, the Obama Administration has added only two species to the list. And in the case of the desert nesting bald eagle, its Assistant Director Gary Frazer, in a December 4, 2009 memo, directed FWS scientists to change their findings which made the case for protection, but not to cite him as the reason they were doing so. On February 25, 2010, the FWS removed protection from the desert nesting bald eagle. This is just one more example among so many of how abuses begun under Bush continue to flourish in the Obama Administration. The Interior Department, of which FWS is a part, is supposed to be the steward of the nation's resources. Instead it remains a piggybank for special interests.
148. On Thursday February 25, 2010, by objecting to a unanimous consent resolution, Senator Jim Bunning (R-KY) blocked an extension of unemployment benefits and COBRA subsidies to hundreds of thousands of Americans and their families, whose benefits were running out, at a time of high unemployment and national uncertainty. He said he was doing it because an extension of benefits would raise the deficit. On March 2, 2010, in the face of public anger, Bunning backed down and a 30 day extension was rushed through. Now admittedly Bunning and the Republicans who tacitly supported him engaged in a hamfisted ploy which blew up on them. But it raised the question of why the Democratic leadership kept dinking around with benefit extensions, instead of enacting a longer term fix. This became evident at the end of the month, when once again Republicans blocked an extension. On March 26, 2010, the Senate went on vacation. Benefits will run out for those depending on an extension on April 5, 2010. The Senate will not reconvene until April 12, 2010. This is a failure of both parties to engage in even minimal governance. It also shows how screwed up their priorities are that they put their vacation ahead of the basic and urgent needs of hundreds of thousands of Americans. A more cynical disregard for ordinary Americans could not be imagined. Consider and compare how this same Senate would have reacted if it was Wall Street that came calling.
After they got back from their vacation, the Congress did get around to a second extension of benefits. At the end of May when benefits were set to start running out for a third time, the House was unable to get out a jobs bill containing the unemployment benefits extension before the Senate adjourned for its Memorial Day vacation. They won't be back until June 7, 2010. Also it looks like the House will cut the COBRA extension entirely. 200,000 Americans are expected to be affected in the first week because of this delay. On June 24, 2010, the Senate failed 57-41 to invoke cloture and move to a final vote on a longer extension of jobless benefits. Majority Leader Harry Reid signaled the bill was dead for the time being saying the Senate would move on to other issues. Only Ben Nelson of Nebraska voted with the Republicans to defeat cloture. Put simply they don't care about ordinary Americans. The Republicans don't in opposing the bill. Ben Nelson certainly doesn't either. Neither do Obama and the Democrats in general who refuse to press this and fight for it. This is another example of an apparent controversy between the two parties which ends in a result, detrimental to most Americans, but which both parties can happily live with. Republicans and Nelson can say they hung tough on budget deficits. Democrats can blame Republicans for obstruction, and nothing that the country needs gets done, again.
149. An April 13, 2010 response filed in federal district court in Colorado reveals details by the government in a secretive proceeding to force Yahoo to supply the government with emails without a search warrant. The case arises out of a December 3, 2009 order by US Magistrate Judge Craig Shaffer to make such a turnover. The Stored Communications Act states that
A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant
The government argues that it needs only a 18 USC § 2703(d) order (asserting simply that the emails are part of an ongoing investigation) to acquire most emails under the specious theory that any email which has been read or downloaded during the statutorially protected 180 day period is no longer "in electronic storage". It runs directly counter to Katz v. US (1967) in which the Supreme Court found that the government could not tap a phone without a warrant because an individual had a 4th Amendment expectation that telephonic conversations were private. The decision also effectively updated the 4th Amendment by noting its protections extend to the person, not places. In other words, it is not where or how a communication occurs but that the individual has a reasonable expectation that it is private, and so 4th Amendment protected. Such an expectation clearly pertains to our emails. What the Obama Administration seeks to do here is to unilaterally eliminate any expectation we may have that our emails are, in fact, private. It is also important to note that everytime the government has lowered the bar on privacy considerations, and despite all the standard promises to the contrary, it invariably leads to major abuses.
150. On April 15, 2010, the Obama Department of Justice announced a 10 count indictment against a former NSA employee Thomas Drake for whistleblowing to Baltimore Sun reporter Siobhan Gorman in 2006-2007 about a data sifting program called Trailblazer, specifically concerning waste and mismanagement as well as the removal of privacy safeguards from it. This is the same Obama Administration that has steadfastly refused to investigate the myriad intelligence excesses and criminality that occurred in Bush era surveillance programs. It goes to show how upside down the priorities of this Administration are. The Obama Administration has made clear that criminal actions undertaken by the Executive will be protected by the Executive, regardless of the President. At the same time, it seeks to punish those who would expose such crimes. Could anything be more corrupt?
On June 9, 2011, Jane Mayer in the New Yorker reported that the government's case appeared to be crumbling. Drake had been charged with 10 felonies and 35 years in prison. Mayer reported that the government offered a plea bargain to a misdemeanor with no jail time but with Drake admitting that he had willfully kept national security materials. So far Drake has refused the deal on the grounds that he was and is innocent of any wrongdoing.
151. On April 26, 2010, the Obama Administration re-served a subpoena on New York Times reporter James Risen. Risen had originally been served back in February 2008 during the Bush Administration. Both subpoenas seek to force Risen to name the whistleblower who told him of a bungled CIA attempt in February 2000 to infiltrate the Iranian nuclear program which not only did not succeed but resulted in the US transferring important information on how to make a nuclear weapon to Iran. The story appeared in Risen's book State of War. This type of subpoena needs the Attorney General, in this case Eric Holder, to sign off on it personally. Like the Drake case cited above, it is another effort by the Obama Administration to punish whistleblowers and diminish transparency at the very same time the President continues to protect Bush era torturers and criminality.
152. As reported on May 7, 2010, the Obama Administration has questioned terrorism suspects like the Christmas underwear bomber Abdulmutallab and Times Square bomber Shahzad without first mirandizing them under a very expansive reading of the public safety exception to Miranda set out in Quarles 1984. Two points need to be made. First, a Miranda warning is a reminder of rights we already have. Miranda protections do not start just from the time of the warning. We have them all along. Second, the public safety exception was meant to be extremely limited in scope, no more than a few brief questions at the time of arrest. As it is, Abdulmutallab was questioned for 50 minutes and Shahzad 3 to 4 hours before they were mirandized. None of what they said during that time should be admissible in court. On May 9, 2010, Attorney General Eric Holder called for legislation to legalize what the Obama Administration's policy of violating Miranda. This is yet another example of how our Constitutionally guaranteed rights are being gnawed away piece by piece. When Miranda was decided in 1966, there were predictions that it would severely compromise law enforcement, that criminals would be running wild in the streets. The actual effect of it was to raise the professional standards of the police. It led to better, solider cases which put more criminals away. What Obama and Holder want to do is loosen standards that have worked well and safeguarded our rights because in the short term sloppy just looks so much easier to do and defend. All one has to do is invoke that all purpose excuse, the War on Terror, and Americans will happily sign their rights away, rights which over our history so many Americans have died defending.
On January 21, 2011, it was reported that efforts to get new legislation on Miranda were dead but that Holder had written a guidance setting no time limit on how long a suspect could be questioned under the public safety exception. So this abuse is still in place.
153. As reported on May 21, 2010, the Obama Administration has submitted legislation to Congress to sell off the nation's public housing. To entice banks to write mortgages on these properties, the new, private, owners would be paid 10% above the going market rate for rent by the government. They could take out home equity type loans for upkeep and maintenance at uncapped rates. If the new owners default, the housing can be put into foreclosure by the banks and sold to developers in which case the poor tenants could well lose their housing. This is a classic example of looting, of government property sold for private benefit, of the rich preying upon the poor. No wonder the Obama Administration loves it.
154. On May 21, 2010, the Court of Appeals for the DC Circuit ruled in al Maqaleh v. Gates that unlawful enemy combatants held at Bagram were outside the jurisdiction of US courts and so could not file habeas petitions within them. In their decision, judges David Sentelle, David Tatel, and Harry Edwards relied heavily on the Obama Administration's presentation (see item 77), principally its invocation of Johnson v. Eisentrager (1950). This case involved the rejection of the habeas petitions of 21 Germans captured in China who had continued to fight in the period between the German surrender and the Japanese surrender. They were tried by a military court, found guilty of violation of the laws of war for their ongoing belligerency after the German surrender, and sent to a US controlled prison in Germany to serve their sentences. The crux of Eisentrager is that the petitioners had never intersected with the US judicial system at any point and so had no recourse to it. Their crimes, capture, trial, and emprisonment had all taken place outside the US and the jurisdiction of its courts. Further, as per ex parte Quirin (1942), they were unlawful combatants in a time of war at their capture (Germany having surrendered) and so subject to trial and punishment by a military tribunal. Finally, while they were being held at a prison run by the US military in Germany. The US did not exercise effective sovereignty over the facility. So here too their claims failed.
However, as Sentelle who wrote the opinion admits, the DC Court of Appeals has bought into the Eisentrager argument in Rasul, Hamdan, and Boumediene and was overruled by the Supreme Court in all three instances. In Rasul (2004), SCOTUS found that US courts do have jurisdiction over non-nationals held at Guantanamo because the US exercised effective sovereignty there (unlike Eisentrager) and so detainees had a statutory right to habeas corpus. In Hamdan (2006), the Court ruled that the military tribunals set up by Bush did not conform to the UCMJ or Common Article 3 of the Geneva Conventions (unlike Eisentrager) and needed Congressional authorization for any variances from them. In Boumediene (2008), the Court held that specifically with regard to Guantanamo, detainees there had a Constitutional right to habeas (in contrast to the weaker statutory grant recognized in Rasul and which the Congress had subsequently withdrawn).
The current case involves three petitioners, Fadi al-Maqaleh (the case name) a Yemeni purportedly captured in Afghanistan in 2003, a Tunisian Redha al-Najar captured in Pakistan in 2002, and another Yemeni Amin al-Bakri captured in Thailand in 2002. In his decision, Sentelle notes that the application of habeas in Boumediene was determined by "practical" considerations. These were as outlined by Justice Kennedy who wrote the Boumediene opinion:
(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made;
(2) the nature of the sites where apprehension and then detention took place; and
(3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.
As to these, Sentelle thinks the first is the strongest in favor of the petitioners. Indeed the inadequacy of the process is similar to the grounds on which Hamdan was decided. For Sentelle, the second "weighs heavily" in favor of the government because the petitioners were apprehended outside the US in conditions where the US did not have effective sovereignty. However, it is the third consideration which the Sentelle and the Appeals Court found decisive. As Sentelle notes, "It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war," and quoting from Boumediene, "if the detention facility were located in an active theater of war, arguments that issuing the writ would be ‘impractical or anomalous’ would have more weight." Thus
We therefore conclude that under both Eisentrager and Boumediene, the writ does not extend to the Bagram confinement in an active theater of war in a territory under neither the de facto nor de jure sovereignty of the United States and within the territory of another de jure sovereign.
Finally, Sentelle dismisses the petitioners' argument that the US chose Bagram precisely to "evade judicial review of Executive detention decisions by transferring detainees into active conflict zones, thereby granting the Executive the power to switch the Constitution on or off at will." This is a crucial point because SCOTUS while radically conservative is very touchy about separation of powers issues where the Court is concerned, as shown in both Rasul and Boumediene. Sentelle replies that the argument is not credible nor applicable because it meant that government officials would have had to "anticipate the complex litigation history set forth above and predict the Boumediene decision long before it came down." It's a nice try at finessing a potentially problematic issue for his decision, but Sentelle's analysis is wrong. But you might as easily ask why Guantanamo was even necessary if the government anticipated no Boumediene-like challenge. Nor is it a case of either/or with regard to Guantanamo and Bagram. Both were part of a system of sites whose purpose was "to evade judicial review." Initially, it was thought that Guantanamo provided a better legal blackhole where neither the Constitution nor the Geneva Conventions ran. A string of Supreme Court decisions, Rasul, Hamdi, Hamdan, and Boumediene proved this untrue, and so the pendulum swung back to Bagram, further afield and with no restricting case history. In light of the Guantanamo decisions and the vitiation of the Geneva Conventions, the warzone argument becomes a plus. This decision will be reviewed one way or another by the Supreme Court. With the Kagan nomination whether she recuses on this case or not (she is currently Solicitor General), a likely vote against this decision will be lost and it may well be that this time the Court will uphold Sentelle and allow the Obama Administration to create the legal blackhole at Bagram that Bush and Cheney sought and failed to create at Guantanamo.
155. On April 5, 2010, an explosion at Massey Energy's Upper Big Branch coal mine killed 29 miners underground. High methane levels had been detected. This was not an accident but the natural result of excessive greed and lax regulation. Massey's CEO Don Blankenship, a right wing nutcase, is like some walking talking caricature of a rapacious capitalist out of the Gilded Age. Putting profits before safety, he once famously, or infamously, wrote in a memo:
If any of you have been asked by your group presidents, your supervisors, engineers or anyone else to do anything other than run coal (i.e., build overcasts, do construction jobs, or whatever) you need to ignore them and run coal.
He also is the guy who defeated one West Virginia Supreme Court judge delivering the election to his opponent all to win a judgment in a court case where Massey was a defendant (Caperton v. Massey). This resulted in a rare rebuke from the US Supreme Court which ruled that the purchased judge Brent Benjamin should have recused himself. The case was returned to the state courts where, there being no happy ending, Massey won.
In the 5 years prior to the explosion the Upper Big Branch mine racked up 1,342 safety violations. In the month before the tragedy, it was cited 50 times, 12 of these involved ventilation problems which could lead to a dangerous buildup of methane. The Upper Big Branch was a disaster waiting to happen. But it was not just a malevolent figure like Don Blankenship who was to blame. The Mine Safety and Health Administration (MSHA) which inspected the mine has the power to close mines with a "history of repeated and significant and substantial violations" until they come into compliance. The Upper Big Branch was a prime candidate for such an intervention, but the MSHA is yet another example of a regulatory agency that had been gutted by the Bush Administration and which the pro-business Obama Administration has done nothing to reconstitute. 29 men died because "running" coal was more important to Massey and the government than their lives.
156. As we saw with George Bush, the quest for greater and greater Presidential power was the natural result of his own incompetence. Along these lines on May 24, 2010, Obama sent to Congress draft legislation to give him a line item veto.
The legislation allows the President to target spending policies that do not have a legitimate and worthy public purpose by providing the President with an additional authority to propose the elimination of wasteful or excessive funding. These proposals then receive expedited consideration in the Congress and a guaranteed up-or-down vote. This legislation would also allow the President to delay funding for these projects until the Congress has had the chance to consider the changes.
According to the Constitution, it is the Congress which has the power of the purse. If the President does not agree with what Congress has done, he can veto a bill. And Congress can respond by overriding that veto. That is the nature of the process. What Obama is proposing is that the Executive take on more of Congress' role. Well, if he wishes to do that the Constitution also has a provision for it. It is called a Constitutional amendment (OK, there is also a Constitutional convention, but that is even less likely than an amendment). For someone who is reputed to be a Constitutional scholar, you would think they would know this. Beyond this, it must be remembered that while some earmarks are irritating, others accomplish some useful purpose. Even taken together they comprise a tiny fraction of the federal budget. Add in that there are much bigger areas of waste and fraud, many of them in the defense budget and you have to wonder how such a large surrender of Constitutionally mandated Congressional power for such a questionable gain can be justified. On the other hand, a line item veto in the hands of the Executive is a wonderful way to alternately bribe and blackmail legislators. It is hard to see legislators doing this to themselves, but stranger things have happened. As it is, this proposal shines further light on Obama's view of the Presidency and how little difference there is between it and that of Bush's unilateral Executive.
157. According to a May 24, 2010 story in the New York Times, CENTCOM commander General David Petraeus signed an order on September 30, 2009 permitting the insertion of JSOC, i.e. Special forces into both friendly and hostile countries in a broad swathe from the Horn of Africa through the Middle East to Central Asia for the ostensible purpose of intelligence gathering and disrupting militant groups. There are just so many things wrong with this it is hard to know where to begin. First, a military commander has no business issuing such an order because of its political nature. This is a policy decision and as such should come from the President and the Secretary of Defense. It is at the very core of the relationship between the government and the military in our country that civilians responsible to voters set policy and the military carries it out. This sets that principle on its head. Second, any JSOC forces captured in an unfriendly country would not be covered by the Geneva Conventions. They would be spies and could be executed. Third, Iran is a target of these operations. Any action with regard to Iran which results in violence either directly by JSOC forces, at their instigation, or with their complicity fits the definition of state sponsored terrorism, a charge which we have often leveled against the regime in Tehran. Fourth, running operations in allied countries with their consent and cooperation is one thing, but unilateral cowboy ops which the order allows could seriously complicate our relations with countries, like Saudi Arabia, Yemen, and Pakistan. Fifth, the order is overly broad in that it sanctions a smorgasbord of activities, some military, some intelligence gathering, some assassinations in a variety of countries over an immense geographic area. It is a license for JSOC to run wild. Sixth, the legal rationale for the use of JSOC forces in these ways is to "prepare the environment" for military action. This formulation dates back to JSOC operations during the Bush years. It was specifically chosen because it evades Congressional oversight turning intelligence activities (+ Congressional oversight) into military ones (- oversight).
158. On April 23, 2010, the Republican governor of Arizona Jan Brewer signed into law the most restrictive immigration law in the country. It made it a crime for any undocumented person to be in the state and required that police demand documentation from anyone they might reasonably suspect to be in the country illegally. Proponents were quick to say that this would not lead to racial profiling but this is exactly what it would do. At the time, Obama criticized the measure. Then on May 25, 2010, Obama reversed himself and ordered 1,200 National Guard to the border. He also pledged $500 million to support border security efforts. From 2006-2008, Bush ran a larger program involving up to 6,000 troops with little effect on crossborder migration. Put simply, this is election year pandering. Given the bad economy, anti-immigration feeling is up and polticians of both parties are seeking to cash in on it.
159. On May 26, 2010, US district court judge for DC Henry Kennedy ordered another Guantanamo inmate freed following a successful habeas petition by Mohammed Hassen, a Yemeni religious student studying in Pakistan. I have described some these cases in detail (items 57, 70, 114, and 135, for example). As of this time, the government has won 14 and lost 36 of these cases. That's a 72% loss rate. That is an astounding figure when you consider how willing the federal courts are to bend over and accommodate even extremely weak government arguments on terrorism and national security cases. It raises the question of why the Obama Administration is fighting habeas petitions even in cases where it knows the petitioner has been wrongfully imprisoned for years. The answer seems to be that it is a cynical political ploy to avoid conservative criticism at the expense of some very vulnerable individuals. So much, again, for the rule of law.
160. Around 4 o'clock in the morning on May 31, 2010, Israeli commandos assaulted a humanitarian convoy of ships, in international waters, carrying aid supplies to Gaza which has been under an Israeli years long blockade. 9 passengers were shot dead aboard the largest ship the Turkish Mavi Marmara. Turkey had been an unofficial sponsor of the humanitarian effort and Turkish officials had searched the Mavi Marmara and certified it carried only humanitarian cargo. The ships also carried dignitaries, aid workers, and peace activists from many countries. Israel immediately blamed their victims for getting themselves killed. The brutality of the Israeli attack and the fact that it took place in international waters puts this in the category of state sponsored terrorism. It was in a word a monumental botch that blew up in the faces of the Israelis. This was not how it was supposed to go down. The attack took place on Memorial Day a no news day in the US. The anti-peace Israeli Prime Minister Benjamin Netanyahu was scheduled to meet with Obama the following day and present him with a fait accompli. Meanwhile showing this Administration's close ties with Israel, Obama's Chief of Staff Rahm Emanuel was in Israel for the bar mitzvah of his son. The disproportionate use of force and the killings changed all this. The meeting with Obama was canceled and Netanyahu hurried home to address the international outrage and public relations nightmare. This was accomplished in part by a news blackout, passengers on the aid ships being held in communicado, and release of some video shot by the Israelis themselves purporting to show their soldiers armed with automatic weapons being threatened by unarmed passengers. Despite this, the Obama Administration refused to back a UN Security Council resolution condemning Israel. Instead it opted for language condemning the violence in general, including any by the passengers. Essentially, the Administration had taken up the Israeli line that the passengers had brought this on themselves.
On June 13, 2010, press secretary Gibbs announced that the Obama Administration approved of the Israeli military conducting its own internal investigation into its attack on the Mavi Marmara. It would have two non-voting international observers. This is an invitation to, indeed a presumptive acceptance of, a whitewash. Israel has rejected calls for an international investigation. Under international law, Turkey whose ship was attacked has the ultimate legal authority to decide how such an investigation should be peformed. The hypocrisy involved here can be easily illustrated. If the Iranians attacked an American ship, would Obama be satisfied with an investigation of the incident run by Iran's military?
Re the two non-voting observers, one is the Irishman David Trimble who with rabid neocon John Bolton created on the very day of the Mavi Marmara attack an organization called Friends of Israel. The other is a Canadian Ken Watkins who conducted a whitewash of an investigation into Canadians turning over Afghan detainees to be tortured.
161. On June 1, 2010, the Supreme Court in a 5-4 decision in Berghius (Warden) v. Thompkins ruled that criminal suspects, having been mirandized, must explicitly invoke their Miranda right to remain silent for it to be operative. This changes the standard from law enforcement seeking and receiving an explicit waiver and shifts the burden on to the suspect to invoke the right.
The facts are these. Following a shooting death in Southfield, Michigan on January 10, 2000, Van Chester Thompkins was arrested and mirandized. He expressly declined to sign a waiver of his Miranda rights. Whether he did so verbally is disputed. During three hours of police (custodial) questioning he remained largely uncommunicative. Toward the end of this period, he was asked if he prayed for the person he had shot. To this, he responded yes. This was taken as a confession. He was subsequently convicted and sentenced to life without parole.
The majority with Kennedy writing emphasized that 1) although Thompkins did not respond much at all, he did respond at least a little and 2) he did not explicitly invoke his Miranda protection. The minority with Sotomayor writing stressed that there was no evidence that 1) Thompkins had ever explicitly waived his Miranda right to silence and 2) his taciturnity during his interrogation argued, in fact, that he had not.
As Sotomayor writes in her dissent,
Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.
This marks yet another stage in this extremely conservative Court's reducing the rights, and protections, of the accused. Current Solicitor General and Obama nominee to replace the retiring Justice Stevens on the Court, Elena Kagan, sided with the police in the federal government's amicus submission in this case.
162. On June 5, 2010, Obama nominated James Clapper to succeed fired Director of National Intelligence Dennis Blair. He is a retired Air Force Lt. General. There are two things wrong with this nomination. First, it represents the ongoing militarization of US intelligence which began under Bush (with all the tunnel vision that entails). Second, Clapper was a Bush appointee. He became Undersecretary of Defense for Intelligence in April 2007, succeeding the infamous Stephen Cambone, and continued in that post under Obama. His nomination demonstrates yet again how the Obama Administration is a continuation of Bush's, not a break with it.
163. On May 21, 2010, the Obama Justice Department filed an amicus brief in the certiorari petition to the Supreme Court in the case of Holy See v. John Doe. This concerns an unnamed Oregon man (John Doe) suing the Vatican, the Archdiocese of Portland, Oregon, the Catholic Bishop of Chicago, and the Order of the Friar of Servants. He alleged sexual abuse by a Catholic priest in the 1960's when he was a teenager and that the Catholic Church had both failed to adequately supervise the priest and had concealed his history of prior abuse. Neal Katyal's name is on the brief as Acting Solicitor General but it was prepared while Elena Kagan headed that office. She was nominated to the Supreme Court on May 10, 2010, just before the filing.
It is the naming the Vatican, not the dioceses, in the suit which raises the legal question. Under the Foreign Sovereign Immunities Act of 1976 (FSIA), a sovereign state, and the Vatican is recognized as such by the US, cannot be civilly sued in American courts, except under certain conditions. One of these is the tort exception which
provides that a foreign state shall not be immune from the jurisdiction of United States courts in any case “in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.”
According to precedent in the Ninth Circuit in which the case arises, the finding that an employee acting in an official capacity and who commits a tort confers liability to the employer (vicarious liability or respondeat superior, let the superior answer) as a matter of state law. This is how state law entered the case, specifically the Oregon state supreme court's decision in Fearing v. Bucher (1999) which held that employers were liable even for the "intentional criminal acts of employees if the acts that lead to the criminal conduct were within the scope of employment." In Fearing, the state court found “the priest’s ‘alleged sexual assaults on plaintiff clearly were outside the scope of his employment’ under the traditional test," but under an alternate test vicarious liability applied to those “acts that were within the scope of employment resulted in the acts which led to injury to [the] plaintiff” What this meant, per the Ninth Circuit Court of Appeals, is that if a priest used his pastoral duties to abuse children then the church, the employer, was liable.
The government's brief basically took the holding in Fearing that abuse was outside the scope of priestly employment and stopped there. It argued that while Fearing may have created an alternate test for vicarious liability, it had not changed how an employee's scope of employment was defined. And as far as the FSIA and the Vatican were concerned, that was all that mattered.
There are several things that should be noted about this case. First, the government was not involved in this litigation but decided to file an amicus brief anyway advocating immunity for the Vatican in the Church's sex abuse scandals. What were they thinking? Second, the impact of the government's position, if it were to be accepted, would be to immunize foreign governments from civil actions taken against the criminal acts of their employees, except in the unlikely circumstance, the foreign country were directly behind such acts. Third, although it is buried in the footnotes of the government's brief, it is important to remember that the Vatican makes the argument that its priests are not its employees but the employees of the dioceses to which they belong. Given the Church's centralized power structure and about two thousand years of history, this is a thoroughly incredible claim. Fourth, it will be interesting to see how the five ultra-conservative Catholic justices on the Court vote on a case involving the Vatican. It certainly looks like the Obama Administration has, with its amicus brief, manufactured an out for them.
On June 28, 2010 (p.4) , the Supreme Court denied certiorari to the Vatican petition. This means the Vatican case will not be dismissed, and it will have to make its case in the lower court.
164. As reported in the New York Times on June 15, 2010, Yahya Wehelie is a Muslim American of Somali descent born in Virginia who has been placed on the no-fly list and can not return to the US. He is effectively being exiled without charge. Wehelie is neither radical nor religious. His family sent him to Yemen in hopes he might find himself and get married. He did both and was returning to the US to complete his education. His "crime" in the eyes of the FBI is that he had a handful of incidental encounters with another American expatriot Sharif Mobley who later joined al Qaeda and killed a Yemeni hospital guard. Apparently any American who travels to Yemen, considered a cheap place to learn Arabic, is now considered a terrorist suspect. The FBI's actions flout Wehelie's Constitutional rights, most notably his 5th Amendment right to due process and his 14th Amendment right to equal protection of the laws. They also amount to racial profiling. And they leave the distinct impression that, unable to capture real terrorists, terrorizing ordinary Americans is a legitimate substitute. That is they wish to show they can be tough even if they aren't effective, or rather to cover up how ineffective they are.
165. On June 17, 2010, the Supreme Court decided 5-4 in New Process Steel v. National Labor Relations Board that the NLRB, having only two members, lacked a quorum and that it could not issue rulings. On December 28, 2007, the terms of two NLRB members expired and there was one vacancy. This left the board with two members. Before leaving the members whose terms were expiring delegated their authority to these two members. The Supreme Court said no. No quorum, no decisions. Obama waited until April 2010 to make two recess appointments Mark Pearce and Craig Becker. After the SCOTUS decision, Pearce and a Republican nominee for the board Brian Hayes were confirmed on June 22, 2010. Craig Becker's confirmation remains in limbo. He is opposed by Republicans because (gasp!) he is pro-labor. Apparently being pro-corporation is no impediment to being a member of the board. More than 500 NLRB decisions could be affected by the Supreme Court ruling. 74 cases are currently in the courts; 5 on the same grounds as the SCOTUS decision. This is a scandal which spans two Administrations, but Obama's delays made a known problem worse. There are real costs to his lackadaisical, hands off approach to the confirmation of his nominees.
166. On June 21, 2010, the Supreme Court 6-3 sided with the government in Holder v. Humanitarian Law Project. This is a major win for the Obama Adminstration, and a major defeat for civil liberties. The case had been brought by various groups of which Humanitarian Law Project (HLP) as a challenge to the government's overly vague definition of "material support" of terrorism under four areas: training, expert advice or assistance, service, and personnel. The HLP had been working with the Tamil Tigers in Sri Lanka and the Kurdish separatist group, the PKK, in Turkey seeking to support their non-violent activities and teaching them how to replace violent action with non-violent alternatives. They cited the government's prohibition as a violation of their 5th Amendment right to due process because the government's definition of what constituted material support was too vague, and it is important to realize that many in this Administration thought it was unConstitutionally vague. They also claimed infringement of their 1st Amendment rights to free speech and assembly. Chief Justice Roberts who wrote the majority opinion held that, while groups like the HLP could voice their opinions independently of these groups, they could not in any way involve themselves or coordinate with officially designated terrorist organizations. He is particularly given to smooth vacuous arguments. Here he maintained that terroris groups like the Tamil Tigers and the PKK would use the knowledge of peaceful methods to further their violent aims. It is a very ahistorical view. Many organizations that were once called terrorist have been successfully reintegrated into normal political life precisely through increasing their understanding of legitimate negotiation, political organizing, and community service. Precluding any peaceful transition for them, or any help for such a transition, is enormously short-sighted. As the New York Times noted in an editorial, this decision could chill contacts between journalists reporting on these groups and academics studying them. It could leave open to prosecution lawyers who wrote a brief on a case in which a terrorist organization was involved. Roberts sought to address this by seeking to distinguish between "association" with such groups and supporting them. But this just pushes the problem back one stage because, if anything, the difference between association and support is even vaguer than the definition of material support which was the original question.
167. On February 18, 2010 created by executive order a deficit commission stacked with anti-Social Security and Medicare ideologues (see item 136). On July 1, 2010, Speaker Nancy Pelosi in an egregiously hypocritical and backstabbing move slipped into supplemental (i.e. must pass) war funding legislation a provision for an up or down vote on the committee's recommendations.
prior to the adjournment of the 111th Congress, any recommendations made by the National Commission on Fiscal Responsibility and Reform and approved by the Senate should be brought to a vote in the House of Representatives
The vote would be especially undemocratic because it would be taken by the lame duck Congress after the elections but before the new Congress came in. That Pelosi did this on the sly, that she did it at all, that she did it after criticizing Republicans for wanting to do something similar, stinks of cowardice, arrogance, and bad faith. Basically, she is backing Obama's attempt to cut Social Security but doing it in such a way that she, like he, can duck responsibility for it, if and when it comes up for a vote. And it is not just about sticking it to future retirees. Deficit reduction as the country moves back into recession is a surefire recipe for depression. All in all it is an action that can be taken to exemplify Obama and the Democrats in Congress. It betrays those who elected them. It is as disastrously wrongheaded as anything Bush ever did, but is executed with a dishonesty that Bush and the Republicans for all their malicious craziness never aspired to or thought necessary. The supplemental with the offending language passed in the House 215-210.
168. Obama committed himself to restoring scientific integrity to government after years of politicization and censorship under Bush. Yet, as reported in a July 10, 2010 LA Times story, 18 months into the Obama Presidency his science advisor John Holdren has failed to set guidelines to protect scientists and scientific endeavors. Instead government scientists are complaining of pressure to change "politically" inconvenient findings at rates equal to those of the Bush years. They are also citing fear of retaliation as a reason for not speaking out publicly. None of this is surprising. Obama appointed the pro-drilling, pro-development Ken Salazar as Secretary of Interior, and it was a given that his policies would run headlong into scientific questions on their environmental impacts. The muzzling of science can also be seen by numerous federal agencies, such as OSHA, the EPA, Fish and Wildlife, and of course the MMS, in their incredibly mild and dilatory response to the BP well blowout in the Gulf of Mexico (item 91).
169. During his campaign Obama criticized free trade agreements like NAFTA (item 55), at least in public, before voters. As President, he quickly shelved any plans to rework the treaty. Similarly, on April 1, 2008, Obama opposed a free trade agreement with Colombia “because the violence against unions in Colombia would make a mockery of the very labor protections that we have insisted be included in these kinds of agreements.” But on July 7, 2010, mockery of labor protections seemed to count for little as Obama announced he would push the free trade agreement with Colombia negotiated under Bush, as well as one with Panama. He had previously announced on June 26, 2010 that he would back a free trade agreement with South Korea opposed by labor in this country.
170. On July 16, 2010, the SEC filed a proposed settlement in federal court to resolve its outstanding civil case against Goldman Sachs with regard to its Abacus 2007-AC 1 CDO. In 2007, Goldman at hedge funder John Paulson's instigation put together a CDO filled with crap which it sold via the now defunct ACA to various dupes, primarily it would seem Deutsche Bank and Royal Bank of Scotland. Paulson then bought a synthetic CDO made up of CDS betting against the initial CDO. As an underwriter of a new security, the Abacus CDO, Goldman had a duty to inform potential investors of all material facts in its possession. The most obvious omission among these was that the CDO had been specially constructed to blow up. Goldman sought to defend itself saying it lost $90 million on the deal. What it didn't say was that these losses came from equity tranches it had agreed to take on and which it subsequently couldn't find buyers dumb enough to dump them on. The Obama Administration has been largely AWOL when it comes to prosecuting fraud associated with our various economic and financial crises. It was something of a surprise then that the SEC, a lapdog of the financial industry, decided on April 14, 2010 in a 3-2 vote to charge Goldman. Usually decisions to prosecute in such cases are unanimous. Both Republican commissioners Kathleen Casey and Troy Paredes, however, wanted to let Goldman be Goldman and voted unsuccessfully against the action. Then after a lot of posturing and negotiating Goldman and the SEC came to a deal. Goldman agreed to pay $550 million in fines and remedies. The SEC quickly trumpeted this as a major victory and the largest fine it had ever exacted. But it really was more business as usual.
$550 million is certainly a large sum but it is only 3.5% of the $16.2 billion Goldman paid in wages and bonuses to its employees. It is only 0.8% of its market cap. Although this was only one deal of many that Goldman was involved in, it looks like a global settlement (as in no further SEC litigation on its CDO deals). Goldman admitted no wrongdoing but was enjoined from committing fraud and omitting material facts in the future. It also agreed to an internal audit and some extra reporting requirements. Of the $550 million, $150 million would go to Deutsche Bank and $100 million to Royal Bank of Scotland. The remaining $300 million (which included the $15 million Goldman originally charged to put together the Abacus deal) would go to the government. As happened in the SEC/Bank of America settlement (item 76), the SEC wants to let Goldman off easy on this and perhaps all similar cases. In addition, almost half of the settlement would go to overseas banks. Beyond on all this, if this case had gone to trial, the discovery process would have shone a bright light into the machinations of Wall Street's largest and most destructive player. If the judge accepts the SEC/Goldman settlement, this won't happen. For this reason alone, a $550 million fine is cheap for what Goldman gets out of it.
171. Since 9/11, spending on intelligence has exploded and now runs around $75 billion a year, 2 1/2 times its pre-9/11 size. Some 70% of this goes to private contractors. At the same time the role of the Department of Defense in spying has similarly grown. 2/3 of intelligence programs now run through the DOD. In addition to this, it has become a commonplace to appoint military men to top civilian intelligence positions. The last two DNIs Mike McConnell and Dennis Blair were both retired admirals. Obama's latest nominee for this post, James Clapper, is a retired Air Force general.
On July 19, 2010, Dana Priest and William Arkin at the Washington Post began a series of articles on this subject. I should point out that Tim Shorrock also covered this subject in his 2007 book Spies for Hire. The trend to outsourcing intelligence has continued under Obama. As Priest and Arkin summarize:
* Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.
* An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.
* In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings —about 17 million square feet of space.
* Many security and intelligence agencies do the same work, creating redundancy and waste. For example, 51 federal organizations and military commands, operating in 15 U.S. cities, track the flow of money to and from terrorist networks.
* Analysts who make sense of documents and conversations obtained by foreign and domestic spying share their judgment by publishing 50,000 intelligence reports each year —a volume so large that many are routinely ignored.
What is being described is a bloated system full of waste, overlap, and turf wars which is not only not protecting us. It has become an adjunct of the surveillance state, a nexus of secret government, and a danger in its own right, unknown, unknowable, and unaccountable. It is another example of a Bush excess which Obama has embraced and expanded.
It is important to remember just how bad the track record of US intelligence is. Its last major success was finding missiles in Cuba in 1962. There was the disastrous Bay of Pigs. Coups in Guatamala and Congo that destabilized those countries or as in the case of Iran embittered our relations for decades. There was a much hyped missile gap with the Soviet Union that didn't exist. The torture, assassination, and drug running of the Vietnam era. Not to mention the greatest intelligence failure of all time, not predicting the collapse of the USSR. The backing of the Afghan mujahideen against the Soviets which led to the Taliban and then al Qaeda. The failure to catch the nuclearization of India and Pakistan in advance. Iraq's invasion of Kuwait. 9/11. WMD in Iraq. Failure to catch bin Laden or Zawahiri for 9 years. The shoe bomber, the underwear bomber, the Times Square bomber, etc. It is hard to imagine a more impressive history of cockups, screwups, failures and disasters. Yet it is this opaque militarized Keystone Kops system of intelligence outsourced to private contractors that Obama has not only embraced from the Bush era but defended and expanded.
On October 28, 2010, the government released a figure for its total spending on intelligence for fiscal year 2010: $80.1 billion. The last time the government released this number was in 1998 when it was $26.7 billion. That is the intelligence budget has tripled in 12 years.
172. On July 16, 2010, the Supreme Court denied stays in the cases of Abdul Aziz Naji v. Obama and Farhi Mohammed v. Obama. These were two Algerians held since 2002 who said they would rather continued to be incarcerated at Guantanamo than returned to Algeria where they feared torture and death from both the government and Islamist insurgents. The Obama Administration had been trying to force their repatriation despite their concerns.
173. On July 19, 2010, as part of a puhback against charges that Tea Partiers were racist, a conservative blogger Breitbart put up a youtube of Shirley Sherrod an Afgrican-American USDA official speaking before an NAACP gathering on March 27, 2010. In the video, Sherrod described how she wondered if she could help a white farmer because of his "superior" attitude. Reaction to the clip was swift. How dare Sherrod use her position to discriminate! The next day, Sherrod was told she was being forced to resign, that is fired. The demand for her resignation came from the top, Agriculture Secretary Tom Vilsack with White House backing. Even the NAACP joined in the condemnation. There was only one problem. It was all a set up, a smear, an ambush. The youtube had been heavily edited to project the most negative and distorted image possible. This became clear when Sherrod's whole talk was made available. Sherrod had not misused her current position. She was talking about an event from 1986, 24 years ago when she was not even yet in government. She was talking about dealing with her own feelings of racism, of helping a white man when some many African-American farmers were suffering. Her speech was about how she overcame her own prejudice when she realized that issues of social justice know no color. For once the media actually did a little digging. The white farmer was found and interviewed. He not only praised Sherrod. He credited her with saving his farm. Incredibly but also in some sense predictably as these facts came out, Vilsack stood behind his decision to fire Sherrod. But the sheer malicious stupidity of the whole affair struck a public chord, and it was an election year. The next day, the NAACP said it had been snookered. The White House offered an apology of sorts (through its Press Secretary Robert Gibbs), and Vilsack said he had reconsidered Sherrod's firing and was making an apology of his own.
As for Sherrod, she was saying that she needed a few days to decide whether she wanted to go back and work for a government that treated her as she had been treated. This is a classic case of the White House and Vilsack shooting first and only belatedly asking the questions they should have asked before acting, after everyone else already has. It also shows how afraid Obama and his Administration are of the right, that a single rightwing blogger can manufacture a "scandal" and provoke a rush to judgment and a summary dismissal with absolutely zero factchecking. How can we expect good people to work in government if they can so easily become incidental political casualties? You see it isn't just Shirley Sherrod. It's any decent, hard working American employed in government or considering such a career. They have to be asking themselves is it really worth it. Is it worth being responsible, going that extra mile, if, out of the blue, their words can be twisted, their life turned upside down, and their career ended, for nothing more than a meaningless political skirmish between the parties of Tweedledum and Tweedledee.
174. On July 21, 2010, the DOJ sent a letter to Congressman John Conyers (D-MI) and others concerning an investigation into the Bush era political firings of US Attorneys (see item 2 of the Bush scandals list). The illegal political manipulation of US Attorney posts by Karl Rove, then Senator Pete Domenici (R-NM), then Representative Heather Wilson (R-NM), Attorney General Alberto Gonzales, Deputy Attorney General Paul McNulty, White House liaison Monica Goodling, Gonzales' Chief of Staff Kyle Sampson, and McNulty's Chief of Staff Michale Elston was blatant. Yet Nora Dannehy the special prosecutor selected by then Bush Attorney General Michael Mukasey to look into the firings found insufficient evidence for any prosecution for lying and obstruction of justice. What we have here is an example of the Bush Administration investigating itself, giving itself a Get Out of Jail Fee card, and the Obama Administration signing off on its whitewash.
175. On June 23, 2010, the CIA announced it had awarded a $100 million contract to Blackwater (aka Xe) to protect CIA personnel abroad. This came one day after the Commission on Wartime Contracting heavily criticized the State Department for giving Blackwater a $120 million contract for similar services in Afghanistan. Blackwater by a religious rightwing nutcase Erik Prince. He used his political connections post-9/11 to expand Blackwater from a tiny government contractor into one doing hundreds of millions of dollars a year in contracts providing what are essentially mercenary services to the military and intelligence communities. In Iraq, Blackwater had a black reputation (see item 256 of the Bush scandals list). On September 16, 2007, this culminated in the Nisoor Square massacre where its guards killed 17 unarmed Iraqis and wounded 24 others. Nevertheless, the Obama Administration continues to steer big contracts to it. Put simply they don't care about its dreadful record, what they like about Blackwater is that they can contract out their accountability to it. So when Blackwater engages in criminal or prohibited activities, the official blowback is on the company. The government only catches some greatly reduced heat for employing them. It's all very convenient, and corrupt, but it's why Blackwater still gets government work.
176. On July 25, 2010, Wikileaks released some 92,000 files from US forces in Afghanistan covering the years 2004-2009. They painted a far more pessimistic view than official accounts of the conflict, the Afghan government, police, and army. But the really big bomb shell was validation of the charge that has been out there for some time that Pakistan's intelligence service the ISI had been aiding and abetting the Taliban in its attacks, including those against US forces, in Afghanistan. The files were prior released to the UK Guardian, Germany's Der Spiegel, and the New York Times so that they could write stories on them. Mark Mazzetti and Eric Schmitt, like the good Establishment reporters they are, went with their DC bureau chief Dean Baquet to the White House to lay out everything they had. So much for the independence of the Fourth Estate.
Despite these files undercutting the government's official narrative of the war and the whole premise for Obama's surge, on July 27, 2010, the House passed 308-114 the Senate version of a $33 billion supplemental funding it to the end of the fiscal year. The release of the files had no effect, but we should have known it wouldn't. Facts don't matter to our elites. Lying to us doesn't matter to them. Why should being caught in their lies make any difference?
177. On July 29, 2010, it was reported in the Washington Post that the Obama Administration would seek to add the words "electronic communication transactional records" to the data that the FBI could get on anyone without a warrant. Currently, it can "legally" ask for only name, address, length of service, and toll billing information without a court order. The addition to the Electronic Communications Privacy Act would allow the FBI access to your entire web browsing history. It would also include the addresses of everyone you sent email to and received email from, although not their actual contents. All of this information could be acquired on you, again without court order, by the FBI, an organization that has abused these kinds of broad grants since the days of J. Edgar Hoover and its inception. And of course, those providing the information would be required not to tell you the FBI was spying on you. Obama came to office promising to restore privacy rights and end the excesses of the Bush era. Instead as here, he is merely trying to legitimize them.
Per an October 10, 2011 story in the Wall Street Journal, the government has obtained a court order for just such a warrantless demand for the email records of Jacob Applebaum, a Wikileaks volunteer, from Google and Sonic.net.
178. With state budgets running massive shortfalls in 2010, the jobs of hundreds of thousands of teachers were at risk. As a result, the House attached some $5 billion in funding to a supplemental appropriations bill for the wars, to save 140,000 teaching jobs. The response of the White House was a threat to veto the whole bill. Why would Obama issue such a threat to a bill which funded his wars and save teachers' jobs? The answer is the spending to keep teachers would be offset in part by cuts to three education programs: $500 million from the Race to the Top program, $200 million from the Teacher Incentive Fund, and $100 million from funds to start up charter schools. The White House probably didn't like any of these cuts but was particularly incensed by the cut to Race to the Top. This is Education Secretary Arne Duncan's prize program. It has states compete with each other to see which will bring their educational systems into conformance with Duncan's education vision. That vision is mostly about the corporatization of education. Like its predecessor No Child Left Behind, it is heavy on all kinds of student, teacher, school, and system evaluation, but, like that program, it doesn't actually result in better education, just excessive concentration on testing, teaching to tests, and test scores.
The story thickens in that the Race to the Top program has a budget of $4.3 billion for 2010. Yet Duncan who has had had this money for more than a year has awarded only $600 million of it and to only two states. So it is not like he was in a rush or had already tied this money up or had even spent that much of it.
On July 1, 2010, despite the veto threat, the House passed the funding for teachers with the cut to Race to the Top. On July 15, 2010, the White House renewed its veto threat. What followed was a classic Congressional cave. On July 22, 2010, the Senate disagreed with the House amendment adding the teacher funds, effectively stripping it from their version of the bill. The Senate did so by unanimous consent, a particularly cowardly way to go about it since it meant no Senator had to have his or her name attached to a vote against cutting teacher jobs. Then on July 27, 2010, the House concurred in the Senate action by a vote of 308-114. The funding for teachers was out and the money for the wars went through, and, of course, Arne Duncan got to keep the funds he hasn't been using. This episode explodes the myth (again) that Obama is a conciliator and avoids conflict. When he wants something as here, he does not hesitate to play hardball. What is so surprising is that he was willing to make this point on this issue. Without teachers, there is no race anywhere. Yet given the option between ideology and practicality, Obama went with ideology.
However the White House may pay a price for its actions. It asked for $1.4 billion in 2011 budget for Race to the Top. The House cut that to $850 million, and the Senate is considering only $675 million. Of course, you might ask why they should appropriate any money for Arne Duncan and his program seeing as his two options for it are either to sit on it or spend it poorly.
179. On August 1, 2010, it was announced that John Limbert, the head of the State Department's Iran desk resigned after 9 months in the position over disillusionment with the Obama Administration's failure to engage the Iranian regime. He also cited a lack of personnel with knowledge of either the culture or language. This sounds like a repeat of the Bush Administration's disastrous stance that expert knowledge was suspect, not to be trusted, "going native." Limbert was one of the 52 hostages held in Iran following the 1979 revolution. Meanwhile Obama continues his policy of sanctions, sanctions, sanctions, and Israel makes bellicose gestures such as running simulations this week in Romania of Israeli air attacks on Iran.
180. Back on January 21, 2010, the Supreme Court came out 5-4 with its decision in the Citizens United case. It is hard to write about this case because almost everything about is upside down, turned inside out, and generally opposite to what it is supposed to mean. This goes even so far as the name Citizens United itself. The name would suggest a group of ordinary concerned, politically active voters, but the truth it is was an astroturf group representing conservative, corporate interests. In brief, this group put together a 90 minute video smear entitled Hillary Clinton: the Movie. This was in January 2008 and Clinton at the time was running for the Democratic nomination for President. Citizens United released the film to theaters and on DVD. It had also set up a deal with a cable company to run it for free on its pay-for-view channel. It had also prepared ads to advertise the film. This ran afoul of the 2002 Bipartisan Election Reform Act which banned
corporations and unions from using general treasury funds to make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualified federal elections
Such electioneering communications were defined in the act as "any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary or 60 days of a general election." The FEC in its regulations made the commonsense emendation that this referred to "public", i.e. free mass media and defined "public" as receivable by 50,000 or more people. Under this interpretation, Citizens United could release Hillary to theaters and on DVD precisely because the 50,000 threshold would not be met, but could not release it to cable where it would be exceeded. Citizens United argued that its film was a documentary and so not an electioneering communication. The DC district and appelate courts disagreed. In petitioning the Supreme Court, Citizens United goals were fairly modest: to erode some of the restrictions on corporate activities, not to challenge those restrictions in their entirety.
But then something amazing happened, or not so amazing if you consider how political and reactionary the Supreme Court has become and to what extent Chief Justice Roberts lied at his Senate confirmation hearings when he said he was a strong defender of stare decisis, or respect for precedent. The Court rejected Citizens United argument but, instead of that being the end of it, the Court substituted it own argument, a much broader one in its place. It sought, on its own and in a fit of what conservatives call judicial activism, to obliterate the difference between individual and corporate campaign spending. In doing so it used as its vehicle a challenge to Austin v. Michigan Chamber of Commerce (1990). The Court had held in this case that a state law prohibition of the use of corporate funds to support or oppose candidates was not a violation of either the 1st or 14th amendments. It did so on the basis that to do otherwise would lead to excessive corporate influence on elections. It also noted that corporations could still set up a segregated fund to engage in political speech. Of course, the decision in Citizens United goes far beyond any one precedent. Distinctions between individual and corporate political expenditures long predate Austin. But it is one of the tricks of this Court to justify trashing stare decisis on the grounds that more recent decisions (in this case 20 years) are less settled law and so more open to overturning. The hypocrisy did not stop there. What is truly shocking about this decision is the argument the Court invented then upheld that any limitation on corporate political spending would have a "chilling" effect on corporate free speech rights. Before this case ever came along, corporations owned our political system. This was as clear under Bush as it is under Obama, as clear with regard to Republicans as it is with Democrats. The Court legislated an outcome to a problem that did not exist and in doing so codifed one that is killing, or has killed, our democracy. They are not concerned that corporations completely smother and overwhelm individual political speech. It is rather that any limitations however minor and ineffective must not be put on the unbridled power of corporations. Citizens United is both an important and unimportant decision. It both changes everything and changes nothing. It validates and extends the corruption of our political system that has already occurred. It is an illustration of how increasingly our elites are dispensing with even the fig leaves that this is a government of the people, by the people, for the people.
181. A July 29, 2010 McClatchy article reports that the Obama Administration is seeking to stimulate arms exports by reducing government controls on them. His plan is to double US arms exports by 2015. The US already has the dubious distinction of being the world's largest arms exporter with some 30% of the market. The danger is that this expansion will not only result in the loss of US technology but in general destabilization of the planet. If nothing else it makes his award of the Nobel Peace Prize even more inexplicable than it already was.
182. On August 2, 2010, a Glenn Greenwald post detailed how Project Vigilant (Executive Director at the time of this writing one Chet Uber) surveilled a dozen regional internet service providers in the US and their some 250 million accounts (ISP addresses). Using information gleaned from their access, they attach names to these addresses and create files on each of them. They then hand this information over to the US government. They do this as volunteers to circumvent laws which prevent the government doing this directly. However those who are known to belong to Project Vigilant are a group of heavy hitters in the area of cybersecurity. Their ostensible funding comes from a murky security outfit called BBHC Global. Oh, and Project Vigilant has been engaged in this activity for a decade, or in other words over the period that the web has seen its most explosive growth and really come into its own. What this sounds like more than anything is that some of our spy agencies are using BBHC Global as a cut out to handle data gathering and mining that it would be illegal for them to do otherwise. The take home message here is that your every keystroke on the web is not only being monitored by people you don't know but it is also being transmitted to the government, and this has been going on for years.
Moreover, this kind of surveillance extends beyond the internet. Uber was also a founder of the FBI's Infragard program. This includes some 10,000 companies, including most of the Fortune 500, dedicated to sharing information on their clients with the government and tipping off the government to any "suspicious" activities by them. Contrast these massive, unwarranted, and unaccountable invasions on our privacy, with how opaque and secretive the Obama Administration has been and how determined it has been in pursuing even legitimate whistleblowers. As Greenwald writes at the end of his piece, "while these factions demand total secrecy for their actions, they simultaneously demand that you have none for yours."
183. In a poll, released August 5, 2010, for the neocon-ish Brookings Institute performed by the Universtiy of Maryland under the direction of Zogby International of 3,976 citizens in 6 Arab countries (Morocco, Egypt, Lebanon, Jordan, UAE, and Saudi Arabia) found that Barack Obama's personal standing and that of his Administration had plummeted. In 2009, Obama was viewed favorably by 42% of respondents. In 2010, this had dropped to 20%. His negatives were even worse, going from 23% in 2009 to 62% in 2010. The single biggest driver behind this abrupt fall in his popularity was his support of Israel and his failure to change the dynamic of the Israel/Palestine conflict. The US was already viewed fairly negatively in the Arab world. Obama's election represented an opportunity to mend fences and make a fresh start in a strategically important part of the world. The poll results show the window for that has passed.
184. On August 24, 2010, the Obama Administration submitted a brief arguing that states and other groups should not be allowed to file suits against major coal fired electric plants for creating public nuisances with their greenhouse gas emissions. The Obama Administration asserted that any action should be left up to the EPA and that the EPA had, in fact, made changes to the standards. Going back to Jimmy Carter, however, Democratic Administrations had backed such complementary suits. In addition, the new standards the government cited only covered new plants, not the existing plants which were the object of the suits. The Obama Adminstration has yet again bought into an industry argument and sided with corporate interests over those of ordinary Americans.
185. An important weapon in financial regulation, especially in the era of Too Big to Fail (TBTF), is anti-trust action. But as a September 8, 2010 Washington Post article reports, the anti-trust division of the Justice Department under Obama has been as supine in its actions as the rest of the Administration. The article highlights primarily Main Street but the real failure has been in letting the TBTF to get even bigger.
186. For those who were disappointed in Obama's nomination of the non-descript, Presidential powers supporting Elena Kagan to the Supreme Court to replace the last of the Court's great liberals John Paul Stevens (who, in a further bit of irony, was nominated by the Republican Gerald Ford), another source of criticism of the nomination has been vindicated. It was pointed out at the time that as Solicitor General Kagan had signed off on briefs in cases that would likely come before the Court. However as reported on September 10, 2010, Kagan has removed herself from 21 of 40 cases the Court has so far agreed to hear in its coming term. This means that the Court's four radical reactionary justices, Roberts, Scalia, Alito, and Thomas, if they agree with the appeals court decision, will constitute an effective majority. This is because any 4-4 tie leaves the lower court's decision intact. These decisions will not establish precedent across the whole federal court system, but in important areas they don't need to. Financial regulation cases in the New York circuit, Guantanamo cases in the DC circuit, and national security/CIA cases in the Virginia circuit, all have the potential to be substantially impacted by Kagan's high recusal rate. All of this was foreseeable and foreseen, as much by critics as by those in the White House. Kagan's recusals on important issues were part of the calculation of the nomination in the first place.
187. Census data for 2009 released on September 16, 2010 showed that the nation's poverty rate increased to 14.3%, that is 43.6 million Americans, or 1 in 7. This is the highest rate since 1994.
188. On September 17, 2010, the Second Court of Appeals in New York ruled that Royal Dutch Shell was immune from prosecution under the Alien Tort statute for its complicity in human rights violations in Nigeria. The law gives US courts jurisdiction to hear violations of international law. Writing the opinion, Jose Cabranes declared,
The principle of individual liability for violations of international law has been limited to natural persons -- not ‘juridical’ persons such as corporations -- because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an ‘international crime’ has rested solely with the individual men and women who have perpetrated it
What this decision shows is that when it is convenient or useful for corporations to be "individuals", as in the Citizens United case (item 180), the federal courts see them as such, but when, as here, such a status would confer liability on them, the courts suddenly draw distinctions between natural personhood and corporate personhood. It is another example of our two tiered justice system, abettor to the "haves", punisher of the "have nots".
189. Elizabeth Warren was chosen by Harry Reid (D-NV) of all people to be the chair of the Congressional Oversight Board for the TARP. Warren was unusual in that she took her job seriously and was a vocal critic of the banking industry and how the TARP was being run. As part of financial reform, she was the primary advocate for an office to protect consumers from bad and predatory practices of the financial industry. The result was the Consumer Financial Protection Board. It was largely gutted in the House (end of item 39). In the Senate, the decision was made to have the pro-business Geithner to set it up at Treasury and then, when a new director was confirmed, transfer it over to the contemptuously anti-regulatory Fed. As the 2010 elections approached and electoral disaster loomed for the Democrats, progressives thought Warren might be nominated as the CFPB's first head. She was afterall the obvious choice for the post. Geithner who had been grilled by Warren over the TARP was against the idea. Retiring Senator Christopher Dodd (D-CT), chair of the Senate Financial Services Committee and one of the greatest whores for the financial industry in Congress, hinted loudly that she would be unconfirmable. Meanwhile Obama dragged out the process. But Democratic hopes for November continued to darken. Finally, Obama acted with a typical Obama feint. On September 17, 2010, Obama named Warren as Assistant to the President and Special Adviser to the Secretary of the Treasury tasked with getting the CFPB up and running. But as Press Secretary Gibb quickly made clear, Warren would not be its first director. He said she did not want the job but would be instrumental in choosing a director. However, Warren to head the already greatly weakened CFPB, it is likely that the board will fade into the Fed's bureaucracy, unnoted and forgotten.
190. On September 21, 2010, the White House announced that Larry Summers (item 6), the head of Obama's economic team, and director of the National Economic Council, would leave to return to his professorship at Harvard. The Obama Administration is the most corporate friendly and corporate dominated in history, eclipsing both the Clinton and Bush Administrations in this regard. However, the midterm 2010 elections were looking bad for the Democrats and the sop of Elizabeth Warren had just been thrown to liberals. So it was leaked that Obama was looking for someone from the corporate world to counter the anti-business image of this most corporate of Administrations.
Summers exercized great power over Obama's economic policies, but he was a jerk and had been thwarted in his ambitions to head either the Fed or the Treasury. Around the two year mark of many Administrations there is a march to the exits by personnel. If they stay longer they may be pressured to stick around through the next Presidential election cycle. Leaving after two years, one has established one's cred that one has connections with the current Administration and it gives one at least two years to draft off them.
191. On September 20, 2010, the Inspector General of the Justice Department (DOJ IG) released a report critical of FBI surveillance of domestic groups from 2001 to 2006. Among those targeted were the pacifist Catholic Thomas Merton Center in Pittsburgh, a Seattle anti-war activist, Quakers, Greenpeace, Catholic Workers, and PETA. It's important to remember that IG reports notoriously pull their punches. When an IG report is critical, that means even they couldn't whitewash what went on, although they invariably minimize both what happened and its consequences. The report maintained that the Thomas Merton incident was just the result of the poor decisions of a couple of agents. What this ignores is the pattern of groups targeted and the incompleteness of the report taking as it does only events happening through 2006.
In any case, the FBI learned its lesson and would not try to do anything like that under Obama, right? Well, not really. Just 4 days later on September 24, 2010 the FBI conducted a series of raids against local anti-war activists in Chicago and Minneapolis looking for ties between them and terrorist groups in Colombia and the Middle East under the recently court sanctioned material support for terrorism doctrine (see item 166). As in the Bush years, this has nothing to do with the war on terror. Rather it is a convenient means to punish dissent at home, chill debate, and further trash the First Amendment. The Washington Post covered this later on June 6, 2011.
192. As noted by Glenn Greenwald, a September 27, 2010 story by Charlie Savage in the New York Times reports that the Obama Administration is preparing legislation seeking to force encrypted email systems like Blackberry, social networking sites like Facebook, and peer to peer services like Skype to install backdoors which the government can use for surveillance and side step the various privacy protocols these systems use . Ostensibly, this would be on a case by case basis and need a court order. We have seen this all before. It is called the NSA. Once the government is given access to communications it invariably hoovers up as many of them as it can, all in the name of national security, keeping the country safe, the war on terror, etc. It doesn't really matter if it is has the legal authority to do so or not. The determinant here is access. If it has that, the hoovering happens. If it is caught out or if there is a sufficiently big stink later, justifications and denials are fabricated as needed. This expansion can also be seen in the second story Greenwald cites. The government is pushing to force banks via a change in Treasury department rules to report all money transfers to and from the country no matter what the size and including the Social Security numbers of both senders and recipients. Up to now, only transfers of $10,000 or more were required to be reported.
What is important to realize is that all this information the government wants is not for any specific investigation. It is information the government wants to data mine at the price of undermining our privacy. But really where does it end? The answer is that as we go down this road we find it never ends. The government can't make sense of all the data it currently vacuums up. Yet it constantly wants more. It's solution to finding the needle in the haystack is always to add more hay. The result is a huge, expensive, and growing, largely privately contracted domestic spying apparatus, but in virtually every instance where a terrorist plot has been uncovered, it wasn't this surveillance state but ordinary old fashioned police work that deserved the credit. This raises the question of whether we need a surveillance state for the war on terror or rather whether we need a war on terror as a useful excuse to justify a surveillance state.
193. Despite the fact that the FDA approved the birth control pill in 1960, it became available legally to all unmarried women in 1972 as a result of Eisenstadt v. Baird, and countless studies have been conducted on oral contraception over the last 50 years, a September 23, 2010 story reports that Health and Human Services Secretary Kathleen Sebelius has ordered a year long study to determine whether contraception counts as an essential preventive health service. A year of study and another year for the rule making process for what is from a medical point of view a non-issue. Why then the obvious delaying tactic? Under Obamacare essential preventive services are to be provided without copays or deductibles. A delay will not only allow anti-contraception forces, like the Catholic church, two years to organize opposition. It also means that insurance companies get at least an extra two years of not having to cover contraception. For Obama, it is a no lose strategy. For women, not so much.
194. Per a September 30, 2010 story in the New York Times, a Kaiser Family Foundation study found that the number of people on Medicaid increased by 3.7 million to 48.5 million in 2009. This is a sign of the worsening economic conditions in the country. Because states share in Medicaid funding, this means their budget shortfalls will continue, also a sign of worsening economic conditions. About 1 in 6 Americans now are on Medicaid.
195. On September 20, 2010, one of the country's largest home lenders GMAC suspended foreclosures in 23 states (states where foreclosures must be approved by a court) after it became known that it was fabricating paperwork in its foreclosure proceedings, i.e. it was lying to and perpetrating numerous frauds upon the court. This was followed by JP Morgan announcing a similar suspension on September 29, 2010 and on October 1, 2010, the nation's largest home lender Bank of America followed suit. The principal issue cited was robo-signing. This is where a single bank official signs thousands of affidavits a month saying they have reviewed a foreclosure file and attest to its accuracy, a clear impossibility. As Yves Smith notes, the whole paper trail from origination through securitization appears to have been botched, multiple steps, each legally necessary. This both includes and goes beyond the use of MERS (see item 94). The potential for liability is vast. But even more, in casting doubt on who really holds and owns the title, it could bring the housing market to a standstill for years. How many people will be willing to make what is for most of them the largest purchase in their lives not knowing for sure that the bank they are buying their house from actually owns the property? From the beginning, it has been known that the banks were involved in massive and ongoing frauds. Yet rather than uncover, investigate, and prosecute these banksters the Obama Administration has been doing all that it can to run interference for them.
On October 8, 2010, Bank of America halted foreclosures in all 50 states. Meanwhile, on October 9, 2010, 40 state attorney generals were joining forces to investigate foreclosure fraud, and pressure was building for a moratorium on foreclosures. And the White House? According to David Axelrod, on October 10, 2010, they opposed a moratorium and hoped banks could quickly sort out the glitches in their paperwork, and by implication get back to the business of throwing people out of their homes. This demonstrates less how wildly out of touch the Obama and his economic and political advisers are with the plight of ordinary Americans and more how wildly responsive they are to the whims and caprices of the banks, that they can characterize the massive frauds the banks are engaging in as simply paperwork problems.
On October 13, 2010, the joint foreclosure fraud investigation had been joined by the Attorney Generals of all 50 states. Perhaps as important a development, JPMorgan, in so far as it could, pulled out of using MERS casting doubt on both its current and past mortgage filings through this electronic registry.
On October 18, 2010, Bank of America ended its moratorium in the 23 states with judicial foreclosure. On October 19, 2010, GMAC also decided to restart foreclosure proceedings. There is no way in the world that these companies have addressed or rectified any of the issues that sparked the moratoria in the first place. In the case of BoA, we are talking some 102,000 foreclosures. They could not have reviewed this number of filings and fixed the "paperwork" on them in a mere 10 days (4 business days). It looks rather like with the complicit backing of the Obama Administration they are going to try to brazen out the process in the courts.
196. On April 27, 2010, HR 3808, the Interstate Recognition of Notarizations Act of 2010, passed the House by voice vote. On September 27, 2010, it passed the Senate by unanimous consent. It requires
Requires each federal and state court to recognize any lawful notarization occurring in or affecting interstate commerce which is made by a notary public licensed or commissioned under the laws of a state other than the state where the court is located
Requires such a notarization to: (1) use a seal of office as symbol of the notary public's authority; or (2) have the seal information, in the case of an electronic record, securely attached to, or logically associated with, the electronic record so as to render the record tamper-resistant.
This may look innocuous but it is anything but. It is, in fact, an attempt by a bought and paid for Congress (hence the lack of roll call votes on it) to short circuit challenges to bank documentation in foreclosures. All aspects of the housing disaster from the originations through the often multiple securitizations were characterized by massive and systemic fraud and criminal negligence. The legally requisite paper trail was either lost or intentionally destroyed. The result is that the back end of this, the foreclosure process, has been seriously, perhaps irrevocably, compromised. The banks' response has been to engage in fraud upon the courts (see item 195). They have been fabricating documentation and submitting false affidavits. HR 3808 would give foreclosure courts, which tend to already be favorably disposed toward banks, a legal justification for accepting these fraudulent materials. In addition, the inclusion of electronic data looks like it would allow submissions from the highly dubious MERS system (item 94). This is another example of crony capitalism at work. The Obama Administration has covered the past frauds of the banks by refusing to investigate and prosecute them. Rather than pay the price for these past criminal acts, the banks have simply gone to their paid politicians in Congress to have the law rewritten to make it easier for them to perpetrate their current frauds. On October 7, 2010, four weeks before the midterm elections and as the story of bank fraud in foreclosures was gaining traction in the media, the White House announced Obama would not sign HR 3808 into law.
197. On October 6, 2010, Immigration and Customs Enforcement (ICE) announced it had deported 392,000 illegal aliens in FY 2010 or the maximum that it could given its budget, per ICE head John Morton. A Pew study released September 1, 2010 estimated, based on Census data, that the population of undocumented in the US had declined from 12 million to 11.1 million between 2007 and 2009. The bad economy and violence along the US-Mexican border have both contributed to declines in the undocumented population, increasing outflows and decreasing inflows. The Obama Administration failed to push immigration legislation in the Congress. The stepped up ICE raids appear to be Obama's real immigration policy. Yet again it is a continuation and expansion of a Bush policy. Politically, it alienates Hispanics, an increasingly important part of the Democratic coalition, and plays to nativists who will never support Obama under any conditions. Policy-wise, it continues to treat the symptom not the cause. If employers were forced to pay all their workers a living wage, much of the benefit of using undocumented workers (to depress wages and keep them low) would disappear.
198. On October 15, 2010, the Social Security Administration announced that for the second straight year (i.e. for 2011) there would be no cost of living increase (COLA) for the 58 million Americans who receive Social Security. The COLA is based on the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). This is calculated by the Bureau of Labor Statistics (BLS). The BLS (question 21) itself admits that the CPI is not set up to measure inflation in subgroups such as seniors. So you might ask why the Social Security Administration uses it. Prices for drugs and food have certainly gone up. Nor is the employment picture one that allows seniors to easily supplement their income to make ends meet. But a freeze in the COLA is a convenient screen to deny spending in areas that our corporate dominated parties do not want to spend because such spending does not benefit them or their contributors. As we know when the banks go to the government for money, vastly larger sums are found and no questions are asked. In the weeks leading up to the 2010 elections, some Democrats suggested a $250 increase for the year, but this would be left to the lame duck session, a session where contrarily Obama's Cat Food Comission (item 136) is likely to propose cuts to Social Security.
199. On October 25, 2010, Obama granted waivers to the 2008 Child Soldier Prevention Act, which came into effect this year, to Chad, Republic of Congo, Sudan, and Yemen so that they could continue receiving US military aid, because, you know, it was the right thing to do, to use children as bargaining chips.
200. In the November 2, 2010 elections, the Democrats lost 60 seats and control of the House. It was the worst loss for a party in 72 years and was only exceeded by the 1938 debacle, when with the country back in depression, Democrats lost 71 seats under FDR. Only Obama is no FDR. Democrats also lost 8 seats in the Senate. They would have lost that too if it had not been for some really nutty Tea Partiers among the GOP candidates. It should be noted that the Democratic losses were completely merited. Obama and the Democrats had a mandate to reject Bush policies and hold members of that Administration accountable for their activities. Obama and the Democrats also had a mandate to create jobs, help homeowners, fix the economy, and investigate Wall Street. They acted against their mandate in each and every instance. They embraced Bush's policies, his wars, and his excesses. They decreed they would not investigate Bush era wrongdoing or criminalize policy differences in the words of Cass Sunstein. They sent trillions to the bankers and left them and their practices in place. They simply refused to make unemployment or the housing crisis a priority. They spent a year on healthcare and produced a bill that did not fix any problems and sold out to insurance, medical, and drug interests. Conservatives hated it and it left progressives feeling betrayed. Their financial reform legislation was largely written for and by bank interests. When the BP oil rig blew out in the Gulf, Obama turned over control to the very fly by night corporation that had created the disaster. While he mouthed occasional criticisms of the company, he directed government agencies to work hand in glove with it and minimize as much as possible the damage caused. Then in the waning days before the election foreclosuregate burst into public awareness. Once again the Obama Administration placed itself on the side of the banks and downplayed the problem.
And throughout all this, defending the status quo rather than delivering the change they had promised, Obama and the Democrats relentlessly attacked every part of the Democratic base on issue after issue: the young, the old, Hispanics, African-Americans, gays, progressives, environmentalists, working and middle class Americans.
They would invoke from time Republican obstructionism, but they never challenged it. They never forced Republicans to engage in a full blown filibuster on anything. They could have changed Senate rules on the filibuster. They could have used the reconciliation process. They could have punished their own recalcitrant members. They could have challenged Republican holds. They could have taken their case to the American people. They never really did any of these things. They never fought. Worse, they never tried.
There was also an inherent contradiction between Democrats using Republican obstructionism as a defense for their failures on the one hand and their emphasis on "bipartisanship." Bipartisanship only works if there is common ground. Obstruction demonstrated there was none. You might have thought that Obama and the Democrats weren't paying attention for this simple, but central, fact to have escaped them. But if you look at their embrace of the Bush agenda and the war on their base, it is clear that they agreed with the Republicans far more than they did with their base, and that most of these invocations were just pap for the rubes, i.e. the rest of us. This was re-inforced in Obama's November 3, 2010 press conference where he repeated again and again the importance of Democrats and Republicans working together, finding common ground, achieving consensus, etc.
In our broken two party political system, we have Republicans acting like Republicans and Democrats acting like Republicans. So for voters to express dissatisfaction with Democratic, that is Republican, policies, their only choice is to elect Republicans. Our elites then take this as evidence they need to move further to the right, a direction that most of them are not at all uncomfortable in going, and in the process the country goes further and further in the wrong direction. This can not and will not end well.
101. On November 13, 2009, as part of a Friday news dump, Attorney General Eric Holder announced how the government would proceed in cases against 10 important Guantanamo detainees. 5 would be tried in federal courts either in the Southern District of New York (Ground Zero) or the Eastern District of Virginia (the Pentagon) and 5 would be tried before military commissions. These moves to prosecute are late by years and are welcome to finally have come, but they remain disturbing. The Attorney General is essentially forum shopping. All detainees will have their day in court but the courts will not be equal. A federal court has the whole weight of the federal judiciary and Constitution behind it. It has never been clear what the legal, Constitutional, and procedural foundations of the Bush created and Bush and Obama revised military commissions are.
This is all about torture. All 10 detainees have been tortured. Those whose prosecutions have been so damaged by it that they can not even survive the extremely low standards of the federal courts in terrorism cases will go to the military commissions. Others, like Khalid Sheik Mohammed who boasted of his role even before his capture and for whom there is evidence untainted by torture, will go to the federal courts. This is not “justice for all” but an ongoing attempt to game the system. The Obama Administration either has no faith in some of its cases, or the system, or both so it is seeking to rig the outcomes in advance and ensure guilty verdicts. This is not how the rule of law or any real system of justice is supposed to work. This is reminiscent of Stalinist Russia where the verdict was decided and, only after this, the trial was held. Not good. On January 27, 2010, Michael Bloomberg, the mayor of New York, troubled by the costs of security and lobbied hard by real estate interests asked the Obama Administration to move the trial of Khalid Sheik Mohammed. Two days later on January 29, 2010, the White House caved. First, while the trial of KSM is likely to be expensive, $200 million in security costs was grossly excessive. Second, the real estate industry’s intervention had an unmistakable NIMBY component to it and was completely inappropriate. Third, having the KSM trial in New York would have sent an important message about the strength of and confidence in our judicial system. Moving the trial simply conveys the opposite impression that American courts are not up to trying such people.
On April 4, 2011, Attorney General announced that he was transferring the cases of KSM, Walid Muhammad Bin Attash, Ramzi Bin Al Shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed Al Hawsawi to the Department of Defense for trial by military commission. He blamed Congressional interference for his decision, but the truth is Obama only paid lip service to civilian trials. He has been backtracking on them for more than a year. Count this one as another blow to the rule of law and put the responsibility for it at Obama's door. Congress didn't do anything here that Obama did not want to have happen.
102. On November 13, 2009, White House counsel Gregg Craig announced his resignation. Craig was behind Obama’s Executive Orders which banned torture and the pledge to close Guantanamo within one year. For these transgressions, he was effectively sacked. It says a lot about where this Administration is headed that even a well established figure like Craig can run afoul of it, simply by doing the right thing.
103. On November 12, 2009, prosecutors filed a civil complaint against the Moslem charity, the Alavi Foundation seeking forfeiture of $500 million in assets. The assets are principally a Fifth Avenue office building whose rents are used to fund mosques and schools in 4 states. Under the action, the mosques and schools would also be seized. No raids were conducted but notices of the action were posted on the buildings, which remained open. The complaint alleges that the foundation funneled revenues through Bank Melli, an Iranian bank, in contravention of US law. It also claims that the charity is controlled by the Iranian government. With the recent assault at Ft. Hood by Nidal Hasan in which 13 were killed, the spectacle of the seizure of US mosques could not come at a worst time. It recalls the repeated prosecutions of the Holy Land Foundation during the Bush years until a conviction was finally won over ties to Hamas. It underlines the threats that Islamic charities face in this country if they have any connections, even humanitarian or culturally-based ones, to any parts of the Middle East, especially those that the US government dislikes. It is in stark contrast to the lack of similar restrictions on the movement of funds to extremist settler groups in Israel.
104. Howard Dean was elected head of the Democratic National Committee on February 12, 2005. He was the architect of the 50 State Strategy, a program which directed money to strengthen state Democratic organizations in all 50 states. It was envisioned as a long term bottom-up plan to build the party and extend its power beyond its traditional strongholds. It had much to do with the Democratic takeover of Congress in 2006 and Obama’s victory, even in red states, in 2008.
It was opposed by Rahm Emanuel, the then head of the Democratic Congressional Campaign Committee (DCCC). Emanuel’s idea was to run conservative Democrats and former Republicans in selected districts and funnel big bucks to them. His win record was less impressive than Dean’s but he was quick to take credit for Democratic victories. There were two problems with Emanuel’s strategy. The first was that given the choice between a real Republican and a Republican-lite voters if they were trending that way would vote for the real Republican. The second, never explained, was what benefit Democrats gained generally by electing what were to all intents and purposes Republicans to Democratic seats, when in many instances a real Democrat could have won the seat. The result has been the the disproportionate influence of the Blue Dog coalition on legislation, a coalition substantially to the right of most Democrats (and independents) in the country.
Much has been made of Obama as a grassroots candidate. While he was certainly adept at using the levers of grass and net roots in his campaign, his was always very much a top-down approach to political organizing. The result was that Obama got rid of Dean as head of the DNC and replaced him with the more conservative and far more ineffectual Tim Kaine of Virginia. And of course he made Emanuel his chief of staff and has chosen the Blue Dogs as his group of choice in the Congress. Policy-wise this has produced both legislation and a legislative process that has left voters across the board unimpressed. Curiously, by siding with the Blue Dogs, it looks like Obama and Rahm will lose exactly those voters these politicians are supposed to represent.
105. On September 24, 2009, the Obama Administration announced that plant virologist Roger Beachy would become the first director of the National Institute of Food and Agriculture (NIFA), a new center consolidating all federally funded agricultural research. In an October 8, 2009 interview, Beachy stated that he had never worked for biotech giant Monsanto although he along with many other scientists at Washington University in St. Louis had received research grants from the company. Beachy massively understated his links to the company. His research collaboration with Monsanto resulted in the world’s first genetically modified (GM) crop, a field Monsanto currently dominates. In January 1999, he was named the founding president of the Donald Danforth Plant Science Science Center, a research partnership among 4 universities of which Monsanto was the sole corporate member. Beachy is a gifted researcher but he has close ties to the largest and most aggressive biotech firm in the world. His selection is another example of the revolving door where someone from industry or with close ties to it is placed in a position where they can steer government funds, resources, and research in directions beneficial to the corporations and industry from which they came. Such relationships blur the line between government and corporations. Where does NIFA end and Monsanto begin?
106. In a similar vein, Islam “Isi” Siddiqui was nominated to be the Obama Administration’s Chief Agricultural Negotiator in the Office of the US Trade Representative on September 22, 2009. Siddiqui was a vice president at CropLife, a lobbying group for the pesticide and agriculturally-related biotech companies such as Monsanto, Syngenta, Dow Chemical, and Dupont. Siddiqui was involved in the promulgation of the first standards defining organic foods. These included such “organic” components as GM crops and sewage sludge. He is also known for his criticism of the European Union’s 1999 ban on hormone treated beef and Japanese GM labeling requirements. His nomination is opposed by environmental groups but also some agricultural ones which see him as a proponent of a single high tech, industrialized form of American agriculture.
107. The Obama Adminstration sought to weaken legislation banning federal contracts to companies that use foreign shells to avoid paying US taxes. The DeLauro Amendment passed in 2002 and one of the few Democratic legislative victories during the Bush years prohibited this practice known as “inversion”. The Obama Administration contends that it “might” violate trade agreements. It is difficult to see how such a transparent scam could. Alternately, it suggests a real problem in the nation’s trade agreements and a need to renegotiate them.
108. Immigration is a policy that Obama has yet to address. His Administration has also been slow to fill US Attorney positions. The two come together in the nomination of Stephanie Rose as US Attorney for the Northern District of Iowa. Rose had a prominent role in the abusive prosecutions of immigrants caught in an ICE raid on the Agriprocessors kosher meat processors plant in Postville, Iowa on May 12, 2008. Those arrested were charged with felony identity-theft for using fake Social Security and visa numbers. They were given the choice of pleading out to 5 months in prison followed by immediate deportation or facing a trial with a mandatory 2 year minimum. Some 270 pled out. In May 2009, the Supreme Court ruled unanimously that identity-theft laws could not be so used. Rose’s nomination was passed out of the Judiciary committee on November 5, 2009 to the full Senate. The question is why the Obama Administration nominated a Bush-era hack to this position in the first place.
109. This entry establishes a baseline for the evaluation of hunger in America. A USDA report released November 16, 2009 covering the year 2008 found that 49.1 million Americans were “food insecure” (the USDA’s terminology for hunger). Those who are food insecure are defined as “at times, uncertain of having, or unable to acquire, enough food for all household members because they had insufficient money and other resources for food.” Of these, 17.3 million had very low food security. This is defined as “at times during the year, the food intake of household members was reduced and their normal eating patterns were disrupted because the household lacked money and other resources for food.” 16.7 million children lived in households that were food insecure. 5.2 million had very low food security. Since the adults in these households may have deferred their nutritional needs for the benefit of their children, the number of children actually affected would be fewer than these numbers. Also the pattern was not of chronic hunger but recurrent crises over food during the course of the year.
2008, the first real year of the recession, showed a marked increase from previous years. Households that were food insecure jumped from 11.1% in 2007 to 14.6% in 2008. While the accompanying press release lauded Administration efforts to address hunger, it is not clear that the government has enacted any specific programs that effectively combat the growth in hunger.
110. In a notable public health fiasco, on November 16, 2009, the US Preventive Services Task Force (USPSTF), an influential consultative group within the Department of Health and Human Services (HHS), issued new and controversial recommendations on breast cancer. The 4 principal changes were
1) The USPSTF recommends against routine screening mammography in women aged 40 to 49 years.
2) The USPSTF recommends biennial screening mammography for women aged 50 to 74 years.
3) The USPSTF recommends against teaching breast self-examination (BSE).
4) The USPSTF concludes that the current evidence is insufficient to assess the additional
benefits and harms of screening mammography in women 75 years or older.
The 2002 guidelines recommended mammograms every 1-2 years beginning at age 40 and were agnostic on self-exams. Already in these earlier recommendations there were questions about mammograms in women under 50. Although mammograms are as effective in the 40-49 year old group at picking up breast cancers, fewer women overall get breast cancer in this group. The 2002 guidelines also suggested mammograms every 12-33 months. In practice, this was translated into yearly mammograms. The current guidelines split the difference (at 24 months) with regard to the older recommendations. The recommendation against breast self-exams continues a trend. In the 2002 report, the evidence was deemed insufficient. This can be seen as a disempowerment of the patient and doesn’t address the issue of more aggressive forms of breast cancer that such exams might pick up. As for women over 75, the studies simply haven’t been done. Nevertheless, other physician biases seem in play, which are the presumptions that older women will outlive their disease, i.e. they will die of other causes or that they will suffer more adverse outcomes from interventions.
The problem is that the USPSTF did a really inexecrable job in explaining major changes in policy regarding a sensitive and traumatic medical issue that touches on a fear all women face. They didn’t make their case. Indeed they barely presented one. They said that they wished to reduce the anxiety associated with false positive mammogram results and the concomitant physical trauma of evasive evaluative procedures, but their announcement created anxiety among women, consternation among phsyicians, and confusion among both. Because of the way they went about this, it was unclear if women’s health, or the costs of screening, was the impetus for their decision. There is a place for debates which weigh health costs against benefits, but they should be clearly labeled as such, not called something else and snuck in the backdoor.
There was the fear too that insurance companies might use the USPSTF recommendations to refuse payment for yearly mammograms. Finally, the USPSTF’s actions damaged the credibility of the recommendations process itself. It failed completely in educating the public as to its reasoning. Instead it issued what was perceived as an arbitrary reversal of major healthcare policy with little or no explanation. This is important because the USPSTF is supposed to fill in many of the blanks left in current healthcare reform bills. If it did such a bad job in this instance, can it be trusted, will it trusted, in these others?
111. On October 28, 2009, Obama signed the 2010 Defense Authorization bill into law. It contained provisions modifying military commissions. On November 18, 2009, a hearing of the military commission of Mohammed Kamin took place. Military commissions to try Guantanamo detainees was always meant as a way to avoid dealing with the issue of torture and to make up for what were shocking deficiencies, sloppiness, and unprofessionalism in the preparation of cases and the maintenance of evidence. The Kamin hearing demonstrated that under Obama little has changed. The hearing went forward despite the fact that no one there had any idea how the recently enacted changes would affect the proceedings. Military commissions were set up to try “unlawful enemy combatants,” a terminology the Administration has dropped. They are now “unprivileged belligerents,” but it is unclear that a system which was set up to try one class of offenders can be used to try another class, without a legal determination changing their status. Kamin was charged with “material support of terrorism”, a charge even the Obama Justice Department thinks is unsustainable, not just in this case but generally. A year and a half into Kamin’s case, there were still basic issues of discovery. The defense had received only 4 summaries of some 17 interrogations of Kamin. Nor could the two initial Afghan interrogators of Kamin be found. Military commissions are antithetical to the rule of law, but the Obama Administration can not be bothered even with requiring minimal procedural standards for them. This was exactly the attitude of the Bush Administration to them.
112. On November 24, 2009, Phillip Carter, cofounder of Iraq and Afghanistan Veterans of America, resigned as Deputy Assistant Secretary of Defense for detainee policy, a post he had held since April. Carter stated he was leaving for family reasons, a euphemism for a dissatisfaction with the job or in lieu of a public firing. His departure comes just 11 days after White House counsel Greg Craig announced his resignation. So the two men who were most responsible for efforts to close Guantanamo and afford Constitutionally prescribed legal rights to detainees are gone. This is hardly a coincidence.
113. On November 24, 2009, the Obama Administration announced that it would not sign on to the Ottawa Convention on the “Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction.” 156 countries are signatories. The Obama Administration gave no rationale for its decision other than to say that, by signing, it “would not be able to meet our national defense needs” Curiously, both Iraq and Afghanistan are signatories although South Korea is not.
114. The Bush and Obama Administration’s detainee policies can be as cruel as they are incomprehensible. Abdul Hamid al Ghizzawi is a Libyan who moved to Afghanistan shortly after the Russians left, married, and became a shopkeeper in Jalalabad. Because he was Arab, he was seized in late 2001 and sold to the Americans for a bounty. In early 2002, he was transferred to Guantanamo where he has been ever since. In 2004 in response to the decision in Rasul, the Bush Administration put in place its infamously contrived Combatant Status Review Tribunals (CSRTs) whose purpose was to determine whether a detainee was an enemy combatant. Despite the deeply biased nature of the process, Ghizzawi’s first CSRT found that he was not an enemy combatant. Such a determination and others like it did not sit well with the Bush Administration’s contention that Guantanamo held only the worst of the worst. As a result, a second CSRT was held for Ghizzawi in January 2005 and, although no new information was presented, he was duly classified as an enemy combatant. In December 2005 Ghizzawi was able to retain counsel and a habeas petition was filed on his behalf in DC district court.
Rasul had a second impact on the Ghizzawi case. It found that detainees had habeas rights. In reaction to this, the Congress passed the Detainee Treatment Act (DTA) which closed off statutory access to future habeas corpus petitions and sought to contest those currently in the courts. Ghizzawi’s petition made it in just under the wire. Bush signed the Defense Appropriations bill of which the DTA was part into law on December 30, 2005. But his petition was immediately stayed until the test habeas corpus case of Boumediene was sorted out. The Supreme Court initially decided to deny certiorari to Boumediene (i.e. it decided not to hear the case) but then reversed itself on June 29, 2007. The Boumediene decision came out on June 10, 2008 and found that detainees held at Guantanamo had a Constitutionally mandated right to habeas. As a result and rather belatedly, the stay on Ghizzawi’s stay was lifted in November 2008, after nearly 3 years.
Subsequent action on the case took place in the Obama Administration. In May 2009, counsel sought expedited action by the Administation’s new review task force and in mid June Ghizzawi was “cleared for release.” But like others so cleared, Ghizzawi has not, in fact, been released although as of this writing more than 5 months have passed. For reasons of his personal safety, Ghizzawi can not be returned to either Afghanistan or his native Libya. (On the other hand, this has not stopped disctrict court judge Reggie Walton from approving the the repatriation of another Guantanamo detainee Umar Hamzayevich Abdulayev to possible torture in Tajikistan.) Ghizzawi also has a history of Hepatitis B and tuberculosis which were apparently left untreated during his emprisonment and which could complicate finding a country that would take him.
In any case, Ghizzawi is currently in a legal limbo. The district court will not move on his habeas petition because it points to the government’s contention that he is “cleared for release,” but the government isn’t actually releasing him. This led Ghizzawi’s counsel on October 2, 2009 to file a new habeas petition with the Supreme Court seeking relief.
In a further twist to this story, the Justice Department notified Gorman on November 17, 2009 that her new habeas brief was cleared for public release and she accordingly posted it on her website. Later on November 20, 2009, the DOJ informed her that it had made a mistake and that she must remove the post from her site because such records were “protected” under DOJ guidelines. There is nothing in the brief that is classifiable. Nor is there any reason for keeping such briefs secret. They are and should be part of the public record. The DOJ action is rather an effort to control the process and above all avoid embarrassment. In this instance, it failed. Gorman’s brief was widely disseminated on the internet. So now while she can not discuss it almost anyone on the net can.
The saying is that justice delayed is justice denied. Ghizzawi had to wait 3 years before he could even get a lawyer. He had to wait another 3 years while Boumediene wound its way through the courts. And now 1 1/2 years after Boumediene was decided and with the tacit admission by the government that he never was a terrorist or enemy combatant, he remains in Guantanamo with no end in sight. There was a brief period in the Spring of 2009 when the Obama Administration looked like it would reassert the rule of law, resolve the detainee question, and close Guantanamo. But since then there has been a noticeable harding of its position. Reformers such as Craig (entry 102) and Carter (112) have left. The closure of Guantanamo has been delayed, and the DOJ has returned to the Bush era practice of playing games with the process.
115. A November 28, 2009 story in the New York Times reports the Obama Administration maintains at least two “black” prisons run by Special Ops at Balad in Iraq and at Bagram in Afghanistan. Prisoners are held and interrogated at the sites for two weeks without any access to the Red Cross. These sites may not be as “black” as those sanctioned by Bush but they show that the Obama Administration continues to evade its treaty commitments and the norms of international behavior.
116. A November 29, 2009 story in the Boston Globe revealed that the Obama Administration will keep millions of pages of documents classified covering a period from World War II to the 1980’s. This is not because there is any great need to keep this material secret but rather the Administration getting rolled by agency bureaucracies. Organizations like the NSA and CIA have had years to review the documents in question but have refused to. They then use the lack of review as a reason for further delay. The Obama Administration not only is letting them get away with this but providing another example of its lack of commitment to its stated goal of transparency.
117. Max Baucus (D-MT), chairman of the Senate Finance Committee, was given, with Obama’s blessing, the lead in the Senate to craft a healthcare bill. That a finance committee and not a health committee was given this job is as clear an indication you could want that this was an exercise about money, not healthcare. This was further underlined by Baucus himself, a Senator from a small population state who heads one of the most powerful committees in the Senate. He represents far more the influential interests which have business before his committee than either the people of Montana or the nation at large. In his 2008 re-election campaign, only 13% of his contributions came from Montana donors.
Baucus wasted months trying to write a bipartisan healthcare bill with Republicans. What happened was typical and predictable. Obama’s original proposals were already overly generous to insurance, drug, and medical companies. Baucus’ pursuit of Republicans made them even more so but in the end all but one of the Republicans (Olympia Snowe (R-ME)) bailed on him, and even she indicated that she would probably vote against the final bill.
It was unsurprising that Baucus would favor a corporate friendly bill. He is one of the biggest recipients of money from the healthcare industry and has received millions from it. He helped pass Medicare Part D with its prohibition on Medicare negotiating drug prices with pharmaceutical companies. This time around was no different. He took the single payer/Medicare for all option off the table and even had some of its supporters arrested. Even as he dished money to insurance corporations, he stressed the importance of containing the cost of the program to the government.
On December 5, 2009, the story broke that Baucus had been keeping his girlfriend Melodee Hanes on his payroll as state office director. She received $180,000 in 2008 and part of 2009 for her work. He also had nominated her for the position of US Attorney in Montana. She later withdrew her name. This may have had less to do with her relationship with Baucus and more to do with her history as a prosecutor in Iowa in child abuse cases where she ordered exculpatory evidence withheld from the defense and where she failed to disclose her conflict of interest in some cases (her then husband, who tended to see abuse where no one else did, was the medical examiner and served as a witness in them).
This then was the man, riven with conflicts of interest, both public and personal, that Obama entrusted healthcare reform to in the Senate, who was the bought and paid for servant of the healthcare industry, who could preach financial “responsibility” even after paying his girlfriend out of government funds, and who tried to swing for her another far more important job for which she was eminently unqualified. If you want to know why and how things don’t work in Washington, you need look no further than this. It is the system. It is the process, but above all, it is the people, people of which Max Baucus is only one of many examples, who serve everyone else’s interests, except ours.
118. On November 24, 2009, an attention seeking couple the Salahis managed to crash the first state dinner of the Obama Presidency and reach, as photos showed, Obama, Biden, and other senior Administration officials. This might be funny if it was not such a major security failure on the part of the Secret Service. The White House Social Secretary Desiree Rogers was also faulted for mixing with guests rather than vetting them. While this would have been helpful, security was simply not her job.
Bennie Thompson (D-MS), chairman of the House Homeland Security committee, held a hearing on the breach on December 3, 2009. Neither the Salahis nor Rogers showed up. In what has to be the silliest and most egregious assertion of its kind, the White House invoked “executive privilege” for Rogers. Janitors, dishwashers, and gardeners at the White House must all be breathing a collective sigh of relief knowing that they too will likely be covered by executive privilege in the future. The Bush Administration was known for its abuse of this privilege, which is traditional but not Constitutional or statutory in nature, This is yet another example of the Obama White House following in its footsteps.
Thompson declined to press the matter.
119. While we are on the subject of silliness, at the urging of Senate Minority leader Mitch McConnell, on November 18, 2009, the Obama White House nominated Dana Perino, former Press Secretary to George Bush and one of the most emptyheaded people in Washington, to the Broadcasting Board of Governors. The board oversees all civilian international broadcasting of the government, including Radio Marti beamed to Cuba. Perino rather famously didn’t know the difference between the Bay of Pigs and the Cuban missile crisis, earning her the nickname “Pig Missile” in the blogosphere. Her nomination is another example of what is known as “wingnut welfare,” where totally incompetent and unqualified conservatives are rewarded with sinecures to pay the bills and fatten their résumés.
120. On April 20, 2009, Cass Sunstein was nominated to head the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget. He was confirmed on September 10, 2009 by a 57-40 vote. Primarily, a legal scholar who believes in judicial minimalism, he was part of the neoliberal Chicago group advising Obama. Co-author of the book “Nudge,” he stressed the responsibility of individuals, over that of institutions, in the choices they made. In July 2008, Sunstein also rather famously promoted the Obama line of not holding the Bush Administration account for its illegalities arguing that this would be “criminalizing public service.” This from a man whom many put on Obama’s short list for a Supreme Court nomination.
The head of OIRA is a key player in government regulatory efforts. What was needed was someone who would reverse the Bush era mania for deregulation and rollback its decisions. Cass Sunstein was a bad choice for this job.
This view was reinforced when it came out on December 2, 2009 that Sunstein had made Randall Lutter a member of his regulatory review team. Lutter was the chief economist for the Food and Drug Administration (FDA) during some of the worst, most anti-regulatory days of the Bush Administration. Long associated with the conservative American Enterprise Institute (AEI), he is well known for his specious cost benefit analyses on how much lead, mercury, and global warming we can all use.
OIRA is a small, important, and little known part of the government. Looking at offices like these can be instructive, however, because they can show how well a President is doing administratively or else how deeply the rot goes.
121. In further notes from the construction of the surveillance state, a doctoral student at Indiana University Christopher Soghoian, in a blogpost on December 1, 2009 reported that Sprint Nextel provided law enforcement authorities GPS location information on some of its customers 8 million times in the period of a year from September 2008 to October 2009. In addition to this, telecoms and other communications companies, such as Google and Yahoo, also provide government a host of other information, including “telephone numbers dialed, text messages, emails and instant messages sent, web pages browsed, the queries submitted to search engines.” Although many customers might be unaware of these activities by their service provider or think that government would need a court order to acquire such information, this is not the case. A simple 215 request, (see entry 85) is sufficient.
Nor do the telecoms do this for free. They provide government agencies with price lists for their various surveillance services. Some of these have made it to the net either via FOIA or leaks (Cryptome December 1-7, 2009). Given the volumes involved, surveillance is likely a significant profit center for participating companies. They are nevertheless sensitive about public fallout from these activities. Verizon wrote that customers “might become unnecessarily afraid that their lines have been tapped or call Verizon to ask if their lines are tapped.” Yahoo sought to have its price guide removed from Cryptome, correspondence which Cryptome included on its website.
What Soghoian publicized is a massive, invasive, for profit surveillance program with essentially no oversight. It is not that all Americans are being surveilled but rather that all their electronic communications are subject to such surveillance without the benefit of any court supervision. This is a program which continues unrestrained into the Obama Administration.
122. On December 3, 2009, the Obama Justice Department entered an amicus brief in support of Bush torture lawyer John Yoo in the Ninth Circuit Court of Appeals in the civil action of Padilla v. Yoo. Jose Padilla is the American citizen arrested on May 8, 2002 and accused of being some kind of super terrorist planning on constructing a “dirty” bomb or blowing up buildings with gas bombs. He was held by the military for 3 1/2 years during which time he was tortured. He was eventually transferred to civilian custody in January 2006 in a successful effort by the Bush Administration to moot his challenge to his detention which was headed to the Supreme Court. On August 16, 2007, he was convicted on dubious and unrelated terrorist charges.
It was the US itself at Nuremberg in 1947 in the US v. Altstötter, also known as the Judges’ Trial, which established the precedent for criminal accountability for officers of the court carrying out illegal actions of the state. In 1971, this accountability was extended to civil cases in Bivens v. Six Unknown Named Agents in which the Supreme Court held that individuals had a common law right to sue federal officials who had violated their “constitutionally protected interests”.
On January 4, 2008, Padilla sued Yoo because Yoo, working in Justice’s Office of Legal Counsel (OLC), wrote (in close coordination with David Addington and Vice President Cheney’s office) the legal memos which justified Padilla’s detention and torture by the military. As legal documents, the Yoo memos are impossibly bad, poorly reasoned, researched, and written. Curiously and fairly disturbingly, the Obama DOJ echoes Yoo’s discredited argument that “war powers and matters of national security” trump everything and preclude a Bivens action. Very oddly too, the government argues that a Bivens action such as Padilla is mounting can not go forward without Congressional legislation underpinning it. But Bivens coming out of the common law should not need an act of Congress to justify it. Rather it would take Congressional action to shut it off.
Now to be fair, the government is correct in so far as it maintains that the courts have not been sympathetic to suits based on Bivens. One has only to look at the recent decision by the Second Circuit in November 2009 when it threw out a similar action in the case of Maher Arar (entry 97). I think too the Supreme Court with Kennedy now siding more and more with the Court’s 4 radical conservatives might well rule with the government on this. If it does, it will further damage the legal foundations of our country. The core of Bivens is that it allows an individual a means to seek redress from the government when that government has closed off all other avenues. That criminality and misconduct permeate the government’s “war on terror” is not a close question. Yet neither the Bush nor the Obama Administrations have made any serious attempt to investigate what was done, prosecute those responsible, and make whole those damaged by the government’s excesses. It is in such an environment that Bivens actions become critical, not just for the individuals directly involved, but for society as a whole. It seems strange to have to revisit the debates of the Founders and Framers of 200 years ago, but if the state can act without regard for the rights of some, then it can act without regard to the rights of all. This is the doctrine that the Obama Administration is promoting and extending.
123. On December 8, 2009, it was widely reported that the Transportation Security Administration (TSA), which is responsible for security at the nation’s airports, had, by mistake, posted its 93-page security manual online. Although in a partly redacted form, the redaction could be quickly undone and so the whole manual was available. That only 20% of checked bags were to be hand searched for explosives, limitations of x-ray machines, exemptions for law enforcement and certain other individuals, and that 25% of IDs were to be authenticated at busy times were just some of the information revealed. A partial justification given was that the TSA is without an administrator. Jim DeMint (R-SC), who was apparently more frightened by the prospect that TSA employees might unionize than by the threat of terrorism, put a hold on the Obama nominee Erroll Southers. However the hold up of the nomination like the leak speaks to a lack of emphasis by both parties on the real nuts and bolts of security issues. Grandstanding is so much easier.
124. On June 9, 2006, three Guantanamo detainees were found hanged in their cells: Yassar Talal al Zahrani, Mani Shaman Turki al Habardi al Tabi, and Ali Abdullah Ahmed. At the time, the commander of Guantanamo, Rear Admiral Harry Harris blamed the three calling their deaths an “act of asymmetrical warfare waged against us.” The military conducted an investigation, the results of which were made public in highly redacted form in August 2008 and April 2009. On December 7, 2009, the Seton Hall School of Law Center for Policy & Research released a damning report on the matter. Prisoners were under constant video surveillance. Guards patrolled the cellblock continually, were supposed to check for signs of movement every 10 minutes (even if prisoners were asleep), and do physical checks of ID bracelets several times a shift. Yet in a cellblock containing only 28 prisoners, the 3 would-be suicides were able to coordinate their actions (although they had been on the block less than 72 hours), and were in non-contiguous cells. They were able to tear up sheets and clothes to weave nooses, make mannequins to place in their beds, hang sheets to block the vision of guards, stuff gags down their throats, and hang themselves all without being noticed. They could do all this and not be found for at least 2 hours and probably substantially longer because when they were eventually discovered rigor had set in (despite Guantanamo’s tropical temperatures), their skin was cold, and post-mortem creasing in their neck (from the nooses) had occurred. The military’s investigation was so poor that guards were not placed under oath nor was any permanent record kept of who was even on duty on the night in question. Other potential witnesses to the camp’s activities were similarly not interviewed. While the military found that standard operating procedures had not been followed, no disciplinary action against anyone was suggested or pursued. The report concludes:
the true circumstances surrounding the detainees' deaths cannot be discerned from the investigative file or the statement of findings. Without a proper investigation, it is impossible to determine the circumstances of three detainees’ deaths.
In other words, we can’t say if these were suicides or murders. Nor can we know if this is due to a dismally poor investigation or a coverup. In January 2009, the fathers of al Zahrani and al Tabi filed a Bivens action (see item 122) in DC federal district court against 24 Bush era officials: al Zahrani v. Rumsfeld and US. On June 26, 2009, the government filed a motion to dismiss. The government erected a veritable house of cards of arguments for its position, a very evil and pernicious house of cards. It is worth the effort to run through the reasoning emanating from the Obama Justice Department on this.
It said that the under section 7 of the Military Commissions Act (MCA) the courts had been stripped of their jurisdiction to hear Constitutional claims of detainees. This is a type of argument that even the current radically conservative Supreme Court, ever jealous of its turf, has consistently rejected.
It referenced the more traditional objection to Bivens that the federal courts disfavor the extension of a Bivens action to “any new context or new category of defendants.” This is a kneejerk argument because this is the argument the government always uses in these cases regardless of its merits.
It is in the invocation of “special factors counselling hesitation” that the government puts forward some of its most slipshod ideas. It cites Sanchez-Espinoza, a Bivens action which failed on behalf of those killed, tortured, and raped by the Contras in Nicaragua. One of the concerns raised by this case was that Bivens actions by foreign nationals could be used to embarrass the US government, and the Court specifically left it to the discretion of Congress to decide whether such a remedy should exist or not. But the cases are not analogous because the detainees in question were wholly in the power of the US. The chain of responsibility and liability for them is clear, direct, and uncontestable.
The government also tried to hide behind the national security curtain.
This Court’s creation of a new damages remedy for allegedly unconstitutional military detention and interrogation practices would be “plainly inconsistent” with the political branches’ authority in this field.
The problem here is similar to one mentioned above. It is an attempt by the Executive to carve out a “no go” zone for the Judiciary even where Constitutional issues are involved. This is a separation of powers argument that up to now has fallen flat with the Supreme Court.
The government also plays the “detrimental effect on the military” card, that it would cause military officials to hesitate, demoralize their troops, and erode the authority of their commanders. This is portrayed as an emergency or battlefield situation, but it isn’t. The issue in question is how these detainees were treated over a period of years to their deaths while completely under the control of US military forces. How would an adherence to the law, the Constitution, and Geneva be “detrimental” to these forces?
It further asserts that if such a Bivens claim were allowed, it would lead to the release of “information which could aid future terrorists in their attempts to attack the United States.” This is a restatement of the old “Do what we say or you are all going to die” argument. But it is factually untrue. There is simply no conceivable information concerning al Zahrani and al Tabi that would fit into this category. They were captured shortly after 9/11 and died 3 1/2 years ago. Even if there were, DC federal courts have substantial experience in handling such matters. The only “aid” to terrorists that could come out of Bivens related discovery is evidence of government wrongdoing. The best remedies for that are for the government not to engage in such activity and to prosecute it where it occurs.
The government contended that Congress via the MCA, the Detainee Treatment Act (DTA), and the Reagan Act had already legislated in this area and provided for no Bivens remedy. However these acts require that the government treat detainees humanely. The government contends that even when this doesn’t happen those so damaged should have no recourse because the Congress did not provide them with one. Now the unstated issue here is torture, and what the government is asserting is that those it tortures cannot seek redress for their torture, period.
Switching from the tortured to the torturers and those who ordered and enabled torture, the government offers up an argument of “qualified immunity”. However, an assertion of qualified immunity is only applicable if a government official or employee “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” In the context of torture, such immunity can not exist, but this is nonetheless the government’s argument.
The government denied there were any Constitutional questions involved. A Constitutional interest is necessary for a Bivens action. Using a Scalia type argument, the government asserted that no 8th Amendment bar to cruel and unusual punishments was at issue because they had never been convicted of anything. The disingenuousness of this argument is breathtaking. The government refused to charge these men for 4 years and then used that failure to maintain that any torture that occurred did not result in an 8th Amendment violation. This is Kafkaesque. These men would not have been held so long without a de facto conviction of them by the government. That this was the result of an extra-judicial proceeding only increases the culpability of those involved, not diminishes it.
Echoing the Bush Administation contention that Guantanamo was a legal blackhole outside the reach of US courts, the Obama DOJ maintained that 5th Amendment protections of due process did not extend to detainees held there, despite Boumediene. It is a curious assertion that one part of the Constitution extends there but another does not. It is at once consistent with al Zahrani and al Tabi’s indefinite detention and at odds with their adjudication as enemy combatants by the Combatant Status Review Tribunal (CSRT) process.
Finally, the government raises an anti-Nuremberg defense, that those involved in the detention, torture, and deaths of these two detainees were not directly involved in these acts. The government would maintain the fiction that sanctioning and ordering torture (and other crimes) do not amount to a direct involvement in them, that where such things occur the chain of command and the responsibility that attaches to it suddenly no longer operates, and that if the facts concerning the treatment of al Zahrani and al Tabi are not yet known they never happened.
Whether the government succeeds in its motion to dismiss on traditional objections to Bivens, its motion exposes the toxic substance of the Obama Administration’s embrace of Bush era arguments for immunity for torturers and violators of the Constitution and denial of basic Constitutional protections to those indefinitely detained and tortured while wholly within the power of our government at Guantanamo where it exercises de facto sovereignty. There is no blackhole exception to our Constitution. This is not about whether al Zahrani and al Tabi were good or bad men. It is fundamentally about us, whether we believe in the rule of law and whether we accept or reject torture.
On December 14, 2009, the Supreme Court denied cert in a similar case Rasul v. Myers which left the DC Circuit opinion intact. This found for Rumsfeld and ten military officers on the grounds that they did have immunity for torture and religious bias committed against the plaintiffs during their incarceration at Guantanamo. We have fallen far as a country when our officials order and promote torture and our courts give them cover for this.
A January 18, 2010 article in Harpers by Scott Horton relates that four guards who were on duty the night of the deaths report that 3 prisoners were removed, one by one, and taken to a nearby facility nicknamed Camp No (because its existence was always denied). Shortly, before the deaths of the 3 detainees were “discovered” a paddy wagon returned from Camp No and pulled up to the infirmary, not the cell block. When the alarm sounded with the “discovery” of the deaths, guards with clear views of the buildings noted that they saw nothing moved from the cell block where the suicides were supposed to have occurred to the infirmary where the bodies magically appeared. The next morning, the camp commander called a meeting of the guards. He told them that while the 3 detainees had died by swallowing rags, the official report would say that the three had hanged themselves. They were instructed not to question this report in any way. This is the clearest evidence we have so far of both murder and a coverup. What is interesting, and disturbing, is that this information was conveyed to the Obama Justice Department which dealt with it in a dilatory fashion. When pressed about its progress, the DOJ announced it was closing its investigation. Murder, coverup, and now a further coverup spanning two Administrations. This suggests that the killings of al Zahrani, al Tabi, and Abdullah Ahmed are only the tip of the iceberg of such major league nastiness that even federal law enforcement (NCIS, FBI, DOJ) felt impelled to rush to obstruct justice to keep it from coming out.
125. On October 9, 2009, in what has to go down as one of the most nonsensical events of his Presidency, Barack Obama was awarded the Nobel Peace Prize for “his extraordinary efforts to strengthen international diplomacy and cooperation between peoples.” What was perhaps most extraordinary about these efforts was that they didn’t exist. The truth is that the Norwegian Nobel Committee awarded Obama the prize not for what he had done but for who he was not, George Bush. It illustrated how poorly most Europeans, and certainly the 5 members of the selection committee, understand American politics.
On December 10, 2009, in his acceptance speech in Oslo, Obama rewarded their naïveté by using the occasion to embrace Bush’s War on Terror and fold it into the framework of a “just war,” cast the war in Afghanistan as a “humanitarian” effort, and promote his Iran policy declaring: “Sanctions must exact a real price. Intransigence must be met with increased pressure.” All in all it was a thoroughly neocon peformance with Orwellian moments, such as when he referred to the military as “wagers of peace.”
126. Blackwater (now renamed Xe) is a very strange and very dangerous company. It was founded by a reactionary Christianist and former Navy Seal Erik Prince in 1997. In 2001, it did only $737,000 in business with the government. 9/11, the War on Terror, and Dick Cheney’s paranoia were a godsend to it (and Prince), and it soon had security contracts worth hundreds of millions of dollars a year. Prince was able to effect this vast expansion by hiring, not just international mercenaries, but far more importantly former special forces people and CIA officers. Basically, the government spent millions of dollars training these and then Prince could hire them away, pay them several times what they had been making, and contract them back to the government at even higher rates. Curiously, the government never seemed to mind this or the company’s often lawless and cowboy style which led to a succession of scandals.
A November 23, 2009 article by Jeremy Scahill in the Nation and a portrait of Prince for the January 2010 edition of Vanity Fair explain why. In the Vanity Fair piece, Prince describes himself as a CIA asset. Blackwater participated in assassination and drone programs with the CIA. The benefit to the CIA was that it could send the people they would have sent anyway to do these things, but since they were now “privatized”, the CIA could deny involvement. The catch was that these activities were still supposed to be reported to the appropriately cleared members of Congress for oversight. During the Bush Administration, this never occurred. Obama’s Director of Central Intelligence Leon Panetta ended the assassination program in June 2009 and briefed Congress on it on July 8, 2009 (see entry 68). When Blackwater’s connection to the ongoing drone program became known, Panetta cancelled that contract as well in December 2009.
What the Scahill article reported was that Blackwater had parallel deals with JSOC (the Joint Special Operations Command). There are several interesting aspects about these programs. Obama’s commander for his Afghanistan surge is Stanley McChrystal who headed JSOC from September 2003 to June 2008. Because these programs are run through the Department of Defense (DOD), they do not have the same Congressional reporting requirements. In fact, they don’t have any. And the programs, unlike those with the CIA, appear to be ongoing.
127. On December 4, 2009, Morris Davis was fired by the Congressional Research Service (CRS) of the Congress for an op-ed he wrote on November 11, 2009 in the Wall Street Journal. He was the chief prosecutor at Guantanamo before resigning his position on October 5, 2007 in protest over government interference and politicization of the judical process there. In the WSJ piece, he called Obama’s decision for a two tiered approach to Guantanamo prosecutions (in federal court and before the discredited military commissions in which he had participated) a mistake. He wrote the editorial as a private citizen and his work at the CRS did not involve areas related to Guantanamo. As such, he was covered by First Amendment protections. CRS director Daniel Mulhollan has refused to re-instate Davis. On December 14, 2009, the ACLU announced it would file a law suit on Davis’ behalf. The CRS maintained in a letter also of December 14, 2009 that Davis had undermined the “appearance of objectivity and non-partisanship” of the CRS. This is laughable for any number of reasons. Davis resigned under Bush and wrote his op-ed under Obama. How less partisan could you get? As for objectivity, apparently being intimately knowledgeable about the military commissions process and so being able to assess them better than almost anyone else in the eyes of the CRS disqualifies him precisely for this reason. This is real upside down thinking. But not unexpected. CRS reports are seldom cited and for good reason. They are by and large an inferior, mediocre product. It stands to reason that someone who might improve their quality would have difficulties there.
128. On December 1, 2009, AIG announced it would reduce its debt to the government by $25 billion by turning over two of its international companies, American Life Insurance and American International Assurance to the Fed which would take them on as two special purpose vehicles. “AIG continues to make good on its commitment to pay the American people back,” the company’s current megalomanic blowhard of a CEO Robert Benmosche said.
This is another in a long list of sad jokes and sweetheart deals engineered by Team Obama. Basically, AIG dumped two divisions it couldn’t sell on the Fed. It gets to write down its debt by $25 billion, although it is far from clear that the two companies were actually worth that much (remember AIG could not find buyers for them). The main difference to taxpayers is that they will now be on the hook through the Fed as opposed to the Treasury. Robert Benmosche will no doubt use this as an excuse to jack up bonuses. And unlikely though it is, just to top off this non-sense, if the Fed should ever unload these white elephants for more than the original $25 billion, AIG, not the taxpayer, will get the difference. This is our crony capitalist system at its worse. It is all a shell game shuffling bad debt and unrealistically priced assets back and forth. The only constant is that it is always the taxpayer who ends up looted.
129. As part of the healthcare debate Byron Dorgan (D-ND) offered an amendment to lower prescription drug costs by allowing for re-importation of drugs from countries, such as Canada and Mexico. The amendment had wide support but was ultimately voted down on December 15, 2009. How this happened is instructive. First, the amendment was smeared by the White House. The FDA sent a letter to conservative Senators reiterating Bush-era arguments about “safety” issues although the drugs are most often produced in the same plants on the same production lines as their much higher priced US counterparts. When Dorgan contacted the FDA head Margaret Hamburg, she said she knew nothing about the letter. Yet it was Hamburg’s name on the letter and used in quotes in news stories on it. Meanwhile Senate leadership in the persons of Senators Reid, Baucus, and Dodd struck a deal to kill the Dorgan amendment in exchange for closing the prescription donut hole in Medicare Part D. The problem here was that BigPharma had not signed off on it. So the Dorgan amendment which was meant to get around the refusal of Congress to allow insurers, like Medicare, to negotiate prices with drug manufacturers was shot down and replaced with a non-deal deal. In other words, this was all kabuki (as usual at the expense of ordinary Americans) directed by the Obama White House to protect its own original deal with BigPharma.
130. On December 24, 2009, Christmas eve and consequently one of the slowest new times of the year, Treasury Secretary Geithner announced that mortgage giants Fannie and Freddie which remain in government receivership would have unlimited credit lines for any losses they incurred over the next 3 years. Geithner had until December 31 to make a decision without Congressional authorization. Each will also be allowed to increase the portfolio of mortgages it holds from the $700 billion range to $810 billion next year followed by a 10% decrease in 2011. Both Treasury and the Fed were winding down programs where they were purchasing Fannie and Freddie mortgage backed securities. First, Fannie and Freddie account for something like 80% of the current US housing mortgage market. This is a reflection of the fact that banks continue to refuse to re-initiate lending and raises again the question why the government directed so much money into such a corrupt and unproductive financial sector. Second, this looks like a stopgap to keep the housing market from collapsing before the 2010 elections. It does not fix the problem as only cramdowns on existing mortgages would do. Third, increasing their portfolio limits shows that the two government sponsored entities (GSEs) were only moving mortgages recently because of Fed and Treasury interventions, and once these end they will not be able to securitize and sell their inventory. This is an indication of both the after effects of the bursting of the housing bubble but also that the bubble has moved on from housing to stocks and commodities. Fourth, removing the debt limit suggests that foreclosures are expected to increase and that the GSEs have very large exposures related to these. What we are seeing is election politics meeting an attempt at Japanification of the real estate sector.
To top it off, it was also just announced that, despite the ongoing troubles at Fannie and Freddie and the prospect of future large losses to be dumped on US taxpayers by them, their CEOs will receive $6 million a piece in 2009. This largesse in the face of poor performances reinforces the view that Obama Administration policy remains bank and investor oriented, and that troubled homeowners continue to be on their own.
131. On December 31, 2009, judge Ricardo Urbina in DC federal district court dismissed the government’s case in US v. Paul Slough et al. In brief, on September 16, 2007, Blackwater guards working for the State Department opened fire without warning or provocation on Iraqi civilians in Nisoor Square in Baghdad killing 17 and wounding 24. The Blackwater employees could not be tried by the US military because they were technically civilians. They could not be tried by the Iraqi government because shortly before his ignominious departure from Iraq in June 2004 Paul Bremer, head of the Coalition Provisional Authority (CPA), issued Order 17 which gave unlimited immunity from Iraqi law to all contractors working in Iraq. At the time of the Nisoor massacre, this order had not been rescinded by the successor Iraqi government.
This left only a federal avenue for investigation and prosecution. The DOJ and FBI’s work was complicated by the State Department. In its investigation of the incident, State compelled as a condition of their employment the Blackwater guards to make statements about what happened. This raised Garrity issues. Garrity v. New Jersey (1967) held that statements so compelled enjoyed 5th Amendment protection against self-incrimination and so could not be used as the basis for any subsequent investigation and prosecution. In this instance, it meant that the government could go forward with its case but it had to be very careful not only not to use anything from these statements but to develop very clear evidentiary chains showing that they had used essentially nothing from the State Department investigation, i.e. fruit of the poisoned tree. This was not arcane or obscure. It was obvious and discussed at the time.
In throwing out the case, judge Urbina noted that federal prosecutors had trampled the Garrity protections in almost every way imaginable.
In their zeal to bring charges against the defendants in this case, the prosecutors and investigators aggressively sought out statements the defendants had been compelled to make to government investigators in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government’s trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team on Garrity and Kastigar issues, that this course of action threatened the viability of the prosecution. The government used the defendants’ compelled statements to guide its charging decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, to obtain the indictment in this case. The government’s key witnesses immersed themselves in the defendants’ compelled statements, and the evidence adduced at the Kastigar hearing plainly demonstrated that these compelled statements shaped portions of the witnesses’ testimony to the indicting grand jury. The explanations offered by the prosecutors and investigators in an attempt to justify their actions and persuade the court that they did not use the defendants’ compelled testimony were all too often contradictory, unbelievable and lacking in credibility.
In other words, the government blew up its own case. Now this could be mindboggling incompetence but the thoroughness with which it was done suggests deliberate sabotage. Much of this took place under the Bush Administration, but in May 2009, the Holder DOJ, knowing it was in trouble, tried a Hail Mary arguing that the statements made by the Blackwater employees were not immunized. Needless to say this did not fly. What Holder should have done is come clean in May, blame the Bush Administration for botching the case (and this really was an epic botch), initiate disciplinary actions against those involved, and move on. Instead he took over a Bush Administration screw up and made it his own.
132. Jonathan Gruber is an economics professor at MIT and Director of the healthcare program at the prestigious National Bureau of Economic Research (NBER). His MIT bio quotes the Washington Post which describes him as “possibly the [Democratic] party's most influential health-care expert.” In 2009, he received two contracts from the Department of Health and Human Services (HHS) worth $392,600 to consult on Obama’s healthcare plans. During the course of the debate, he wrote op-eds and opined widely in the media as the Administration’s chief and most influential academic defender. However Gruber did not disclose, except in a handful of cases, that he was a paid consultant and his status remained unknown in most of the media and to the public until January 7, 2010.
133. One of the most scandalous aspects of the Bush Administration’s bailout of insurance giant AIG was the paying out at par (100 cents on the dollar) $62.1 billion in swaps held by its Financial Products unit. The primary beneficiaries of this action were Goldman Sachs and various European banks, like Deutsche Bank and Société Générale. This decision was made in November 2008 while Timothy Geithner was then president of the NY Fed. On November 24, 2008, Obama chose Geithner to be his Secretary of Treasury, at which point Geithner supposedly recused himself. It wasn’t just the payment, its size or to whom it was made, that was disturbing, but, as reported in a January 7, 2010 Bloomberg article, that the NY Fed directed AIG to illegally hide information on the payments in its required filings to the SEC. The identities of the payees did eventually come to light several months later on March 15, 2009. The Administration line is that Geithner had no part in this cover up because he had recused himself even before the official announcement of his nomination for Treasury. But when the identities of the payees became known in March and Geithner’s involvement was made known, no recusal argument was made then. So it is hard to believe that Geithner was not involved with such important decisions or that he was involved in some but not others.
134. A January 8, 2010 article by Charlie Savage of the New York Times reports that the Obama Administration has committed to a policy of stealth signing statements. Signing statements are not Constitutional. A President can veto a bill or sign it. If signed, he is obligated to execute all aspects of the bill. He does not get to pick and choose (a line item veto). If he thinks some part of a bill is unConstitutional, he can go to the courts to have it overturned or he can seek changes through further legislation.
Signing statements have been around since the 19th century. During most of that time, they were rare and usually used as a notification that in executing a law the Executive was not ceding or implying any cession of powers to the legislature. Under Bush, signing statements became declarations that the Executive would not carry out or enforce specific provisions detailed in the signing statement (a line item veto). Bush used signing statements more than all of his predecessors combined.
Rather than curtailing the use of signing statements, the Obama Administration has added its own twist to them taking them to a whole new level. The Administration will not repeat a signing statement if a provision is included again in later bills. The original signing statement is to extend to these as well. More than this, if the Administration raises objections to a provision outside the venue of the signing statement, no signing statement will be issued but the Administration will act as if one has been made. In short, Obama is saying that he will only obey and execute those provisions of the law which he wishes to but leaves it to the country to guess which provisions he will not obey and execute. This is another example of the Obama Administration’s contempt for the rule of law and its retention and extension of a Bush era abuse.
135. On January 5, 2010, the DC Circuit Court of Appeals denied the habeas petition of Ghaleb Nassar al-Bihani. The opinion was written by Janice Rogers Brown, one of the most controversial and radically conservative of George Bush’s appointees. Also on the panel was Brett Kavanaugh whose job during the Bush years was to recruit and vet such reactionary judges for the federal courts. Kavanaugh had the dubious distinction of being the most unqualified judge to sit on the DC Circuit in 100 years. Largely forgotten now, on June 27, 2007, Senator Patrick Leahy (D-VT) and chair of the Senate Judiciary Committee sent a letter to Gonzales’ DOJ referring Kavanaugh for criminal investigation for lying during his confirmation concerning his having no involvment in developing the Bush Administration’s policy toward “enenmy combatants”. Needless to say the Gonzales did not pursue the matter. Both the Washington Post and NPR reported that he had taken part in at least one meeting on this subject in 2002. Rounding out the panel was Stephen Williams, a Reagan appointee.
The facts are that al-Bihani was a Yemeni who, a few months before 9/11, joined a non-al Qaeda Arab brigade which fought with the Taliban against the Northern Alliance in Afghanistan. Not only were his links to al Qaeda tangential to non-existent, he wasn’t even a footsoldier. He was the cook. He surrendered with his brigade and was transferred to Guantanamo, that storehouse of the “worst of the worst,” in 2002 and has been there ever since.
al Bihani is another egregious case in a long line of them stemming from the gross incompetence and criminality of the Bush Administration in how it set up Guantanamo, who it sent there, whom it kept there, and why. At its core, al Bihani is about a prolonged and pointless imprisonment, one which the Obama Administration is fighting to maintain. In this it was aided and abetted by the Ciricuit Court of Appeals which did not so much deliver a legal opinion as went out on a right wing ideological binge, worthy of the contorted and distorted thinking of John Yoo.
Brown justified this spectacle by extracting a line from O’Connor’s opinion in Hamdi v. Bush (2004): “The permissible bounds of the [enemy combatant] category will be defined by the lower courts as subsequent cases are presented to them.” What this usually means is that the high court is leaving it to the lower courts to work out the details and specific procedures. What Brown uses it for is a license to rewrite large chunks of US jurisprudence.
al Bihani’s lawyers argued that his imprisonment violated the international laws of war since he was a non-combatant (a cook), his unit was never at war with the US, and the conflict he and his unit were involved in against the Northern Alliance ended with the successful US invasion of Afghanistan. Now a normal court would key in on one or more of these points for disagreement or find that al Bihani had misapplied the international laws of war to his situation, but Brown goes much, much further. She asserts that in the War on Terror the US can simply set aside the international laws of war.
Before considering these arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. This premise is mistaken.
In effect, Brown has made a claim that not even the Obama Administration was making. Talk about judicial activism.
Then, either demonstrating an incredible ignorance of events in Afghanistan or a selective memory for them, she looks at the details, as promised, of al Bihani’s case. She found that al Bihani being a cook constitutes being a part of and supporting those whom, as per the AUMF, “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” As I have pointed out before, even the Obama DOJ finds the “material support” charge dubious as a legal vehicle (see item 111.). Nor was al Bihani ever a member of either al Qaeda or the Taliban so it is difficult to see where the being a “part of” comes in. More than this, if a cook can be detained without trial for years than so could about half the population of Afghanistan which gave varying degrees of aid and support to the Taliban. At the same time, there are plenty of warlords who were allied with the Taliban (and did substantially more than cook) who are now in the Karzai government. But Brown never addresses any of the inconsistencies in how al Bihani has been treated as compared to these others. The point that she wants to make is that a foreign citizen in a foreign country can be detained by US forces in the Global War on Terror for almost any reason and for almost any length of time. This is not a legal theory. It is a policy statement.
As a result, Brown’s views on the procedural issues of al Bihani’s habeas petition should come as no surprise. She writes:
in the shadow of Boumediene, courts are neither bound by the procedural limits created for other detention contexts nor obliged to use them as baselines from which any departures must be justified.
Boumediene established a Constitutional right to habeas for Guantanamo detainees. To be meaningful habeas procedures have to be substantial. Brown, however, once again uses the lack of explicit instructions from the Supreme Court as carte blanche to create her own ideologically driven much narrower standards and effectively gut the habeas process. Brown argues that the government need only base its case on a preponderance of the evidence. This is the same standard used by the Combat Status Review Tribunals (CSRTs) which determined that al Bihani was an unlawful enemy combatant and would mean in practice that the federal courts would accept their findings. The problem is that the CSRTs were shams and caricatures of due process. Yet Brown maintains they are sufficient to pass the burden of proof to al Bihani and require that he adhere to a higher standard of proof than that of the government. This is called stacking the deck. As for al Bihani’s motion for an evidentiary hearing and discovery, two matters which are extremely pertinent to the habeas petitions of Guantanamo detainees, given the reports of military prosecutors about how poorly and sloppily the government controlled and managed evidence there, these Brown simply dismisses out of hand.
In case, you may think that I have portrayed Brown in an unfair light or that her views are less than extreme, I would cite her own words in a concurring opinion which she also wrote:
War is a challenge to law, and the law must adjust. It must recognize that the old wineskins of international law, domestic criminal procedure, or other prior frameworks are ill-suited to the bitter wine of this new warfare. We can no longer afford diffidence. This war has placed us not just at, but already past the leading edge of a new and frightening paradigm, one that demands new rules be written. Falling back on the comfort of prior practices supplies only illusory comfort.
This is the same brand of thinking which called the Geneva Conventions quaint. It now applies itself to the most fundamental of all legal rights, that of habeas corpus. It tells us to be afraid and that we must sacrifice our rights for our safety. But in the end, it cannot promise safety. It can only promise to take away our rights.
136. On January 19, 2010, Vice President Biden and Democratic Congressional leaders: House Speaker Nancy Pelosi (D-CA), House Majority leader Steny Hoyer (D-MD), Senate Majority leader Harry Reid (D-NV), together with Obama’s OMB director Peter Orszag agreed to establish an 18 member panel ostensibly to cut government deficits. The true purpose is to slash entitlements (Medicare and Social Security), a policy that Orszag has long advocated. The true authors of this idea are Biden and Senators Kent Conrad (D-ND) and Judd Gregg (R-NH). Nor would this be a toothless commission as so many are. Its recommendations would go directly to the floor of the two houses for an up or down vote with no hearings or amendments allowed. The Obama Administration first tried to sell cutting entitlements back in February 2009 (item 25) shortly after taking office but went on to concentrate on healthcare after the negative reaction this effort received.
It is little short of amazing that the very day Democrats lost Teddy Kennedy’s old seat in Massachusetts, one of the most liberal states in the union, to a right wing Republican with Teabagger (Don’t touch my Medicare!) connections that Obama and the Democrats would sign off on such a politically suicidal plan.
On January 26, 2010, the Senate killed this atrocious idea 46-53 (60 votes needed) in an unusual bipartisan vote.
On February 18, 2010, Obama went ahead and formed by executive order a deficit commission on his own. It was supposed to come up with recommendations to balance the federal budget, minus interest payments, by 2015. Its real purpose to serve as a vehicle to slash Social Security and Medicare was made clear in the following:
the Commission shall propose recommendations that meaningfully improve the long-run fiscal outlook, including changes to address the growth of entitlement spending and the gap between the projected revenues and expenditures of the Federal Government
Note while entitlements are the only programs mentioned specifically, a gold-plated military, senseless wars, and taxbreaks for the rich and corporations are not.
Alan Simpson, the former conservative Senator from Wyoming and longtime critic of Social Security was named one of the co-chairs. The other was Erskine Bowles, a pro-business Clinton conservative, who was involved as his Chief of Staff in crafting the 1997 Balanced Budget Act. He is currently the president of the state university system in North Carolina. He is also an investment banker and on the board of the investment bank Morgan Stanley.
12 of the commission’s 18 members were to be seating members of Congress. The partisan split was to be 10-8 Democratic. This is a ludicrous project but shows how committed the Obama Administration is to making major cuts at a time of economic crisis in the two most popular programs in government and the two most important pieces of the social safety net. It is unsure if the Republicans will even participate. Because of the lack of Congressional enabling legislation, it is likely the commission’s recommendations will die in the Congressional process, if they are even taken up there. Choosing 12 seating members of Congress looks to transfer the failures there to the commission. If Congress could not fix this on its own, how will putting a bunch of members on a weak commission change anything? While the commission is nominally majority Democratic, its composition looks to be heavily pro-business, anti-ordinary American in makeup. This is another example of Obama’s embrace of Bush’s destructive habit of not only buying into bad policy but persisting repeatedly in it.
137. As reported on January 25, 2010, Obama announced a three year budget freeze. This would be on discretionary spending, but would not affect defense, homeland security, national security, and veterans. Savings of $250 billion over ten years were expected. In reality, this would amount to a cut in the first year of 10-15 billion dollars. It is hard to work out the optics on this. As the only growth in the economy currently comes from government spending and with 15 million unemployed and 25 million un- or under- employed, the freeze sends the wrong message. On the other hand, the sums involved when put against the whole federal budget are small so it is unlikely to appease deficit hawks. It suggests that in the run up to the State of the Union (SOTU) on January 27, 2010, the White House is flailing both politically and economically in reaction to the loss of Ted Kennedy’s seat in Massachusetts and what that portends for November and its inability to get its healthcare bill, as bad as it is, enacted before the speech.
138. Via this January 28, 2010 New York Times story, another sign of just how in the pocket of corporations Obama is can be seen in his move to privatize transportation to and supply of the International Space Station. As Charles Bolden, Obama’s NASA director, put it so succinctly: “What NASA will focus on is facilitating the success of — I like to use the term ‘entrepreneurial interests’”. NASA was once an agency that did science and fired the imagination. It was a national endeavor. Now it will have rockets sporting corporate logos.
139. A January 29, 2010 Newsweek story relates that the long awaited and long delayed Justice Department’s Office of Professional Responsibility (OPR) report on John Yoo and Jay Bybee, authors of the infamous Bush Office of Legal Counsel (OLC) torture memos, had its original findings changed to preclude sanctions against the two for their involvement in justifying torture. Initially, the report found that they had violated their professional obligations. For this, Yoo who is a professor at UC Berkeley’s Boalt Hall School of Law, would have faced disbarment. Bybee who, as a reward for his work on the memos, was given a federal appellate court judgeship could also have faced impeachment. However, career Justice lawyer David Margolis reviewed the report and watered down its recommendations. In Washington circles, Margolis has a solid reputation, but he is hardly an impartial observer. During the Bush era US Attorney scandals, Margolis played father confessor to Kyle Sampson, then Attorney General Alberto Gonzales’ Chief of Staff and Monica Goodling the White House liaison. Both went to him before accessing the DOJ’s regular chain of command. Neither suffered any official consequences for their actions.
The story is further complicated because at the time Margolis was reviewing the OPR report in December 2009, the Justice Department (DOJ) on December 3, 2009 was filing an amicus brief on Yoo’s behalf in a civil Bivens action brought by Jose Padilla on January 4, 2008 (item 122). In addition, the DOJ was paying for Yoo’s defense.
This represents not only a monumental conflict of interest, but more, a subverting of the course of justice. It now looks like the long delays in the release of the OPR report were to avoid its initial findings being made part of the Padilla case. Then, just to make sure, those findings were changed by a dependable DOJ insider even as the DOJ submitted its own brief in the Padilla case defending Yoo. The Obama Administration came in promising to clean up the politicized, unprofessional mess Bush had left at the DOJ. Instead it is using its own dubious practices to defend that mess and protect those who created it.
The OPR report was finally released in a late Friday news dump on February 19, 2010. As previously reported, Margolis had successfully spiked the findings which would have led to penalties against Yoo and Bybee, another case of our elites protecting their own no matter how thuggish and culpable the actors.
140. A January 26, 2010 story in the Washington Post by Dana Priest reported
After the Sept. 11 attacks, Bush gave the CIA, and later the military, authority to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests, military and intelligence officials said. The evidence has to meet a certain, defined threshold. The person, for instance, has to pose "a continuing and imminent threat to U.S. persons and interests," said one former intelligence official.
The Obama administration has adopted the same stance. If a U.S. citizen joins al-Qaeda, "it doesn't really change anything from the standpoint of whether we can target them," a senior administration official said. "They are then part of the enemy."
The problem is that this sets the Executive branch up alone as judge, jury, and executioner of American citizens. There is no due process, no checks or balances, just another “Trust us” from a government that has shown repeatedly that it cannot be trusted and that the Framers themselves never thought, even at the best of times, should be trusted to make such decisions.
In a follow up story, on February 5, 2010, Newsweek reported
strikes specifically targeting Americans must first be approved by a secret committee made up of senior intel officials and members of the president's cabinet (it's not known which ones). The president himself does not have to sign off on kill orders.
The Pentagon’s JSOC (Joint Special Operations Command) is rumored to have an assassination list containing the names of 3 US citizens and the CIA 4. One of those on both lists is Anwar al-Awlaki, an American Moslem cleric who has advocated violence against the US and who has been linked to both Major Nidal Hasan, the military psychiatrist who went on a shooting spree at Fort Hood, Texas, killing 13 (November 5, 2009) and Umar Farouk Abdulmutallab, the underpants bomber (December 25, 2009). In December 2009, al-Awlaki was the target of a predator strike in Yemen. He escaped. al-Awlaki affirms his connections to the two men but specifically denied organizing their attacks. This is an important point because in a case involving the Ku Klux Klan Brandenburg v. Ohio (1969), the Supreme Court drew the line between speech advocating overthrow of, or violence against, the government (protected by the First Amendment) and action to these ends (which was not).
Targeting Americans who know bad guys and who say reprehensible things may satisfy some reflex desire we may have for vengeance, but it is bad law, bad policy, and unConstitutional. Our Constitution allows al-Awlaki to say what he says, no matter how much we dislike it or disagree with it. It does not allow him to be a member of al Qaeda or engage and participate in attacks against this country. If our government wishes to assert that he has gone beyond words to actions, then it needs to establish that in a court of law, and not in a Star Chamber proceeding which even the President won’t take responsibility for. And those assertions do need to be tested. As the cases of both the Canadian Maher Arar and the German Khalid El-Masri show, the CIA does get it wrong. Quite simply the strength of our law and Constitution is to be found not in how it treats the best of us but the worst, not in those most loved but in those who are the least popular among us.
On April 7, 2010, it was confirmed that President Obama had authorized the CIA to kill al-Awlaki. The assassination of American citizens on the say so of the President without any due process is an unConstitutional power not even the Bush Administration claimed.
On June 25, 2010, in a Washington Post article, John Brennan, Obama's chief counterterrorism advisor, stated that the US was targeting dozens of US citizens abroad.
"If an American person or citizen is in a Yemen or in a Pakistan or in Somalia or another place, and they are trying to carry out attacks against U.S. interests, they also will face the full brunt of a U.S. response. And it can take many forms."
It is important to note that while Americans are legitimate targets on a battlefield. The world, including the US, can not be simply defined as a battlefield as the Administration would do. This means that Obama is asserting the right to kill any American he deems a threat anywhere, without charge, without evidence, without the Constitution.
In reaction to a lawsuit brought by the ACLU and Center for Constitutional Rights on behalf of Awlaki's father contesting the kill order on his son, an American citizen, the government in a brief filed just after a court imposed September 24, 2010 deadline argued that the suit should be dismissed on state secrets grounds. This Administration acts more like Kafka and speaks more like Orwell by the day. It seems futile to point out that a state secrets defense can not be used to hide or shield illegal acts in light of an Adminstration which considers the rule of law little more than an empty campaign slogan.
On December 7, 2010, in a notable cave, DC Federal District Judge John Bates threw out the Awlaki suit. Bates reasoned
To be sure, this court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the executive's unilateral decision to kill a U.S. citizen overseas is constitutionally committed to the political branches and judicially unreviewable
That is an incredible and disheartening statement from a federal judge. The Founders profoundly distrusted unchecked power, but here we have a perfect example of it. First Amendment protected speech is free, whether we agree with it or not, whether it occurs in this country or not. And all the government has ever alleged against Awlaki is that it does not like his speech, even though that speech, if it occurred in this country would be protected. Yet on this basis it is sanctioning an extra-judicial execution and a federal judge has nothing to say about it. But we must all ask ourselves if 5th and 14th Amendment due process protections can be nullified once we step outside our borders, how long will it be before they are chipped and rationalized away within them?
We are already far down the slippery slope. The Constitution demands a declaration of war but all we have is a vague AUMF (Authorization for the Use of Military Force). No battlefield is designated, no enemy is identified. It has no limits and no endpoints. Anyone anywhere can be singled out, even, as here, an American citizen, and sentenced to death. By whom, for what, the government has to show no one. We are just supposed to trust them. But looking at our government, both Administrations Democratic and Republican, when was the last time you found them worthy of your trust?
141. A February 13, 2010 story chronicles how Immigration and Customs Enforcement (ICE) agents recruit undocumented workers as informants by promising them visas, put them in dangerous situations, don’t deliver the promised visas, and then threaten them with deportation if they try to stop. This program spans both the Bush and Obama Administrations. It has been further complicated by bureaucratic infighting as agencies vie for funds in the War on Terror. Informants were pressed by ICE agents to come up with information on terrorist activities or be deported even when there was simply nothing to report. This is a story about betrayal because no informants are, in fact, awarded visas for their cooperation. It is also about stupidity because now that this is known there is exactly zero incentive for informants to provide ICE with good and useful information. ICE is part of the Department of Homeland Security perhaps the worse organized and worse run department in government.
142. As of March 2, 2010, more than a year into his Administration, the 5 member Privacy and Civil Liberties Oversight Board, which grew out of a 9/11 Commission recommendation, “has no members, no staff, and no office.” This is unsurprising in an Administration which has chosen to continue all of the surveillance and domestic spying programs of the Bush Administration along with their abuses. An independent Board with a full-time chairperson and subpoena powers is not viewed by Obama as a defender of the people’s rights but as an inconvenience to his power.
143. On February 24, 2010, the Central Falls school board in Rhode Island fired all 93 teachers and staff at a poorly performing high school. The district had demanded that teachers work substantially longer hours with little increase in pay. Negotiations with the teachers’ union broke down. The school is in one of the poorest areas of the state with a median income of $22,000 a year, a highly transient population, and high unemployment. 65% of students were Hispanic for whom many English was a second language, and a quarter of whom needed ESL services. “Half the students are failing every subject, with 55 percent skilled in reading and 7 percent proficient in math.” In addition, the school had gone through 5 principals in 6 years. So basically this is a school where the district was not willing to provide the resources (pay teachers) and had failed to provide leadership (5 principals in 6 years) but was willing to blame the teachers. On March 1, 2010, Obama naturally blamed the teachers too.
"If a school continues to fail its students year after year after year, if it doesn't show signs of improvement, then there's got to be a sense of accountability," he said. "And that's what happened in Rhode Island last week…”
Yes, we should place the onus on the teachers who did not create this mess but have had to deal with it on a daily and yearly basis, and this from the same President who did not demand any similar accountability from bank CEOs who lost trillions in the frauds and speculations which they did create.
144. A March 15, 2010 story reports that the Obama Administration revoked the 10 year, multiple entry visa of Edward Horgan. Horgan was a career officer in the Irish Defense Forces and has served as a UN peacekeeper and election monitor in several countries. His sin is that he is an opponent of extraordinary rendition and cofounded a group Shannonwatch which protested the use of Shannon airport as a transit point for such purposes. What Obama is engaging in is the same kind of heavy handed censorship that we used to criticize former Soviet bloc states for. That is what this Administration has come to. It would rather protect the torturers than those who bring their crimes to light.
145. On July 8, 2009, the Obama's Office of Management and Budget (OMB) criticized HR 2701, the House version of the 2010 Intelligence Authorization Act. Despite all of the abuses and failures involving the intelligence community during the Bush years, the OMB stated:
The Administration strongly objects to section 321, which would replace the current “Gang of 8” notification procedures on covert activities. There is a long tradition spanning decades of comity between the branches regarding intelligence matters, and the Administration has emphasized the importance of providing timely and complete congressional notification, and using “Gang of 8” limitations only to meet extraordinary circumstances affecting the vital interests of the United States.
In other words, the Obama Administration wanted to keep things as they were with no effective Congressional oversight of intelligence activities, because that worked out so well in the past. In fact, the OMB threatened a veto:
If the final bill presented to the President contains this provision, the President's senior advisors would recommend a veto.
In response, the House watered down its proposals and passed a bill on February 25, 2010. It kept the non-functioning Gang of 8 system in place but required the President to keep Congress informed in a timely fashion, especially of covert activities initiated by the Executive alone. On March 16, 2010, OMB director Peter Orszag repeated the White House's veto threat. As Glenn Greenwald notes, both this and the previous item came as Obama celebrated Sunshine Week declaring that his Administration was "the most open and transparent ever," an Orwellian claim but one this President is increasingly given to.
146. Wikileaks is an organization which funnels whistleblower documents and reports to the web. The contents of these are highly embarrassing to both the countries and the corporations from which they originate. Rather than stop these activities, those involved in them, however, would prefer stopping wikileaks. Among these is the US government under both the Bush and Obama Administrations, especially their defense and intelligence components. On March 15, 2010, wikileaks released a March 18, 2008 report by the US Army Counterintelligence Center on how to destroy wikileaks by exposing and prosecuting its whistleblowers. Showing a peculiar lack of self-awareness the report also stated how some of the planet's biggest and most controversial human rights violators: "China, Israel, North Korea, Russia, Vietnam, and Zimbabwe" had sought to block or attack the organization. The authors found no incongruity in adding the US to that illustrious, and illustrative, list. A March 26, 2010 wikileaks editorial recounted US and Icelandic surveillance of its members. The group was in Iceland to support prospective legislation to afford greater protections to whistelblower groups like theirs in the wake of that country's banking scandals and economic collapse. These actions are about secrecy, an ongoing lack of any meaningful oversight, and above all a complete absence of accountability. In this, the Obama Administration is following in the footsteps of its predecessor, and trying to shoot the messenger rather than change the message.
147. Under Bush, the Fish and Wildlife Service (FWS) which is responsible for carrying out the Endangered Species Act was led by political hacks who, in the interests of developers, ignored the science --all in a push to remove, or keep off, species from federal protection. In its first year in office, the Obama Administration has added only two species to the list. And in the case of the desert nesting bald eagle, its Assistant Director Gary Frazer, in a December 4, 2009 memo, directed FWS scientists to change their findings which made the case for protection, but not to cite him as the reason they were doing so. On February 25, 2010, the FWS removed protection from the desert nesting bald eagle. This is just one more example among so many of how abuses begun under Bush continue to flourish in the Obama Administration. The Interior Department, of which FWS is a part, is supposed to be the steward of the nation's resources. Instead it remains a piggybank for special interests.
148. On Thursday February 25, 2010, by objecting to a unanimous consent resolution, Senator Jim Bunning (R-KY) blocked an extension of unemployment benefits and COBRA subsidies to hundreds of thousands of Americans and their families, whose benefits were running out, at a time of high unemployment and national uncertainty. He said he was doing it because an extension of benefits would raise the deficit. On March 2, 2010, in the face of public anger, Bunning backed down and a 30 day extension was rushed through. Now admittedly Bunning and the Republicans who tacitly supported him engaged in a hamfisted ploy which blew up on them. But it raised the question of why the Democratic leadership kept dinking around with benefit extensions, instead of enacting a longer term fix. This became evident at the end of the month, when once again Republicans blocked an extension. On March 26, 2010, the Senate went on vacation. Benefits will run out for those depending on an extension on April 5, 2010. The Senate will not reconvene until April 12, 2010. This is a failure of both parties to engage in even minimal governance. It also shows how screwed up their priorities are that they put their vacation ahead of the basic and urgent needs of hundreds of thousands of Americans. A more cynical disregard for ordinary Americans could not be imagined. Consider and compare how this same Senate would have reacted if it was Wall Street that came calling.
After they got back from their vacation, the Congress did get around to a second extension of benefits. At the end of May when benefits were set to start running out for a third time, the House was unable to get out a jobs bill containing the unemployment benefits extension before the Senate adjourned for its Memorial Day vacation. They won't be back until June 7, 2010. Also it looks like the House will cut the COBRA extension entirely. 200,000 Americans are expected to be affected in the first week because of this delay. On June 24, 2010, the Senate failed 57-41 to invoke cloture and move to a final vote on a longer extension of jobless benefits. Majority Leader Harry Reid signaled the bill was dead for the time being saying the Senate would move on to other issues. Only Ben Nelson of Nebraska voted with the Republicans to defeat cloture. Put simply they don't care about ordinary Americans. The Republicans don't in opposing the bill. Ben Nelson certainly doesn't either. Neither do Obama and the Democrats in general who refuse to press this and fight for it. This is another example of an apparent controversy between the two parties which ends in a result, detrimental to most Americans, but which both parties can happily live with. Republicans and Nelson can say they hung tough on budget deficits. Democrats can blame Republicans for obstruction, and nothing that the country needs gets done, again.
149. An April 13, 2010 response filed in federal district court in Colorado reveals details by the government in a secretive proceeding to force Yahoo to supply the government with emails without a search warrant. The case arises out of a December 3, 2009 order by US Magistrate Judge Craig Shaffer to make such a turnover. The Stored Communications Act states that
A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant
The government argues that it needs only a 18 USC § 2703(d) order (asserting simply that the emails are part of an ongoing investigation) to acquire most emails under the specious theory that any email which has been read or downloaded during the statutorially protected 180 day period is no longer "in electronic storage". It runs directly counter to Katz v. US (1967) in which the Supreme Court found that the government could not tap a phone without a warrant because an individual had a 4th Amendment expectation that telephonic conversations were private. The decision also effectively updated the 4th Amendment by noting its protections extend to the person, not places. In other words, it is not where or how a communication occurs but that the individual has a reasonable expectation that it is private, and so 4th Amendment protected. Such an expectation clearly pertains to our emails. What the Obama Administration seeks to do here is to unilaterally eliminate any expectation we may have that our emails are, in fact, private. It is also important to note that everytime the government has lowered the bar on privacy considerations, and despite all the standard promises to the contrary, it invariably leads to major abuses.
150. On April 15, 2010, the Obama Department of Justice announced a 10 count indictment against a former NSA employee Thomas Drake for whistleblowing to Baltimore Sun reporter Siobhan Gorman in 2006-2007 about a data sifting program called Trailblazer, specifically concerning waste and mismanagement as well as the removal of privacy safeguards from it. This is the same Obama Administration that has steadfastly refused to investigate the myriad intelligence excesses and criminality that occurred in Bush era surveillance programs. It goes to show how upside down the priorities of this Administration are. The Obama Administration has made clear that criminal actions undertaken by the Executive will be protected by the Executive, regardless of the President. At the same time, it seeks to punish those who would expose such crimes. Could anything be more corrupt?
On June 9, 2011, Jane Mayer in the New Yorker reported that the government's case appeared to be crumbling. Drake had been charged with 10 felonies and 35 years in prison. Mayer reported that the government offered a plea bargain to a misdemeanor with no jail time but with Drake admitting that he had willfully kept national security materials. So far Drake has refused the deal on the grounds that he was and is innocent of any wrongdoing.
151. On April 26, 2010, the Obama Administration re-served a subpoena on New York Times reporter James Risen. Risen had originally been served back in February 2008 during the Bush Administration. Both subpoenas seek to force Risen to name the whistleblower who told him of a bungled CIA attempt in February 2000 to infiltrate the Iranian nuclear program which not only did not succeed but resulted in the US transferring important information on how to make a nuclear weapon to Iran. The story appeared in Risen's book State of War. This type of subpoena needs the Attorney General, in this case Eric Holder, to sign off on it personally. Like the Drake case cited above, it is another effort by the Obama Administration to punish whistleblowers and diminish transparency at the very same time the President continues to protect Bush era torturers and criminality.
152. As reported on May 7, 2010, the Obama Administration has questioned terrorism suspects like the Christmas underwear bomber Abdulmutallab and Times Square bomber Shahzad without first mirandizing them under a very expansive reading of the public safety exception to Miranda set out in Quarles 1984. Two points need to be made. First, a Miranda warning is a reminder of rights we already have. Miranda protections do not start just from the time of the warning. We have them all along. Second, the public safety exception was meant to be extremely limited in scope, no more than a few brief questions at the time of arrest. As it is, Abdulmutallab was questioned for 50 minutes and Shahzad 3 to 4 hours before they were mirandized. None of what they said during that time should be admissible in court. On May 9, 2010, Attorney General Eric Holder called for legislation to legalize what the Obama Administration's policy of violating Miranda. This is yet another example of how our Constitutionally guaranteed rights are being gnawed away piece by piece. When Miranda was decided in 1966, there were predictions that it would severely compromise law enforcement, that criminals would be running wild in the streets. The actual effect of it was to raise the professional standards of the police. It led to better, solider cases which put more criminals away. What Obama and Holder want to do is loosen standards that have worked well and safeguarded our rights because in the short term sloppy just looks so much easier to do and defend. All one has to do is invoke that all purpose excuse, the War on Terror, and Americans will happily sign their rights away, rights which over our history so many Americans have died defending.
On January 21, 2011, it was reported that efforts to get new legislation on Miranda were dead but that Holder had written a guidance setting no time limit on how long a suspect could be questioned under the public safety exception. So this abuse is still in place.
153. As reported on May 21, 2010, the Obama Administration has submitted legislation to Congress to sell off the nation's public housing. To entice banks to write mortgages on these properties, the new, private, owners would be paid 10% above the going market rate for rent by the government. They could take out home equity type loans for upkeep and maintenance at uncapped rates. If the new owners default, the housing can be put into foreclosure by the banks and sold to developers in which case the poor tenants could well lose their housing. This is a classic example of looting, of government property sold for private benefit, of the rich preying upon the poor. No wonder the Obama Administration loves it.
154. On May 21, 2010, the Court of Appeals for the DC Circuit ruled in al Maqaleh v. Gates that unlawful enemy combatants held at Bagram were outside the jurisdiction of US courts and so could not file habeas petitions within them. In their decision, judges David Sentelle, David Tatel, and Harry Edwards relied heavily on the Obama Administration's presentation (see item 77), principally its invocation of Johnson v. Eisentrager (1950). This case involved the rejection of the habeas petitions of 21 Germans captured in China who had continued to fight in the period between the German surrender and the Japanese surrender. They were tried by a military court, found guilty of violation of the laws of war for their ongoing belligerency after the German surrender, and sent to a US controlled prison in Germany to serve their sentences. The crux of Eisentrager is that the petitioners had never intersected with the US judicial system at any point and so had no recourse to it. Their crimes, capture, trial, and emprisonment had all taken place outside the US and the jurisdiction of its courts. Further, as per ex parte Quirin (1942), they were unlawful combatants in a time of war at their capture (Germany having surrendered) and so subject to trial and punishment by a military tribunal. Finally, while they were being held at a prison run by the US military in Germany. The US did not exercise effective sovereignty over the facility. So here too their claims failed.
However, as Sentelle who wrote the opinion admits, the DC Court of Appeals has bought into the Eisentrager argument in Rasul, Hamdan, and Boumediene and was overruled by the Supreme Court in all three instances. In Rasul (2004), SCOTUS found that US courts do have jurisdiction over non-nationals held at Guantanamo because the US exercised effective sovereignty there (unlike Eisentrager) and so detainees had a statutory right to habeas corpus. In Hamdan (2006), the Court ruled that the military tribunals set up by Bush did not conform to the UCMJ or Common Article 3 of the Geneva Conventions (unlike Eisentrager) and needed Congressional authorization for any variances from them. In Boumediene (2008), the Court held that specifically with regard to Guantanamo, detainees there had a Constitutional right to habeas (in contrast to the weaker statutory grant recognized in Rasul and which the Congress had subsequently withdrawn).
The current case involves three petitioners, Fadi al-Maqaleh (the case name) a Yemeni purportedly captured in Afghanistan in 2003, a Tunisian Redha al-Najar captured in Pakistan in 2002, and another Yemeni Amin al-Bakri captured in Thailand in 2002. In his decision, Sentelle notes that the application of habeas in Boumediene was determined by "practical" considerations. These were as outlined by Justice Kennedy who wrote the Boumediene opinion:
(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made;
(2) the nature of the sites where apprehension and then detention took place; and
(3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.
As to these, Sentelle thinks the first is the strongest in favor of the petitioners. Indeed the inadequacy of the process is similar to the grounds on which Hamdan was decided. For Sentelle, the second "weighs heavily" in favor of the government because the petitioners were apprehended outside the US in conditions where the US did not have effective sovereignty. However, it is the third consideration which the Sentelle and the Appeals Court found decisive. As Sentelle notes, "It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war," and quoting from Boumediene, "if the detention facility were located in an active theater of war, arguments that issuing the writ would be ‘impractical or anomalous’ would have more weight." Thus
We therefore conclude that under both Eisentrager and Boumediene, the writ does not extend to the Bagram confinement in an active theater of war in a territory under neither the de facto nor de jure sovereignty of the United States and within the territory of another de jure sovereign.
Finally, Sentelle dismisses the petitioners' argument that the US chose Bagram precisely to "evade judicial review of Executive detention decisions by transferring detainees into active conflict zones, thereby granting the Executive the power to switch the Constitution on or off at will." This is a crucial point because SCOTUS while radically conservative is very touchy about separation of powers issues where the Court is concerned, as shown in both Rasul and Boumediene. Sentelle replies that the argument is not credible nor applicable because it meant that government officials would have had to "anticipate the complex litigation history set forth above and predict the Boumediene decision long before it came down." It's a nice try at finessing a potentially problematic issue for his decision, but Sentelle's analysis is wrong. But you might as easily ask why Guantanamo was even necessary if the government anticipated no Boumediene-like challenge. Nor is it a case of either/or with regard to Guantanamo and Bagram. Both were part of a system of sites whose purpose was "to evade judicial review." Initially, it was thought that Guantanamo provided a better legal blackhole where neither the Constitution nor the Geneva Conventions ran. A string of Supreme Court decisions, Rasul, Hamdi, Hamdan, and Boumediene proved this untrue, and so the pendulum swung back to Bagram, further afield and with no restricting case history. In light of the Guantanamo decisions and the vitiation of the Geneva Conventions, the warzone argument becomes a plus. This decision will be reviewed one way or another by the Supreme Court. With the Kagan nomination whether she recuses on this case or not (she is currently Solicitor General), a likely vote against this decision will be lost and it may well be that this time the Court will uphold Sentelle and allow the Obama Administration to create the legal blackhole at Bagram that Bush and Cheney sought and failed to create at Guantanamo.
155. On April 5, 2010, an explosion at Massey Energy's Upper Big Branch coal mine killed 29 miners underground. High methane levels had been detected. This was not an accident but the natural result of excessive greed and lax regulation. Massey's CEO Don Blankenship, a right wing nutcase, is like some walking talking caricature of a rapacious capitalist out of the Gilded Age. Putting profits before safety, he once famously, or infamously, wrote in a memo:
If any of you have been asked by your group presidents, your supervisors, engineers or anyone else to do anything other than run coal (i.e., build overcasts, do construction jobs, or whatever) you need to ignore them and run coal.
He also is the guy who defeated one West Virginia Supreme Court judge delivering the election to his opponent all to win a judgment in a court case where Massey was a defendant (Caperton v. Massey). This resulted in a rare rebuke from the US Supreme Court which ruled that the purchased judge Brent Benjamin should have recused himself. The case was returned to the state courts where, there being no happy ending, Massey won.
In the 5 years prior to the explosion the Upper Big Branch mine racked up 1,342 safety violations. In the month before the tragedy, it was cited 50 times, 12 of these involved ventilation problems which could lead to a dangerous buildup of methane. The Upper Big Branch was a disaster waiting to happen. But it was not just a malevolent figure like Don Blankenship who was to blame. The Mine Safety and Health Administration (MSHA) which inspected the mine has the power to close mines with a "history of repeated and significant and substantial violations" until they come into compliance. The Upper Big Branch was a prime candidate for such an intervention, but the MSHA is yet another example of a regulatory agency that had been gutted by the Bush Administration and which the pro-business Obama Administration has done nothing to reconstitute. 29 men died because "running" coal was more important to Massey and the government than their lives.
156. As we saw with George Bush, the quest for greater and greater Presidential power was the natural result of his own incompetence. Along these lines on May 24, 2010, Obama sent to Congress draft legislation to give him a line item veto.
The legislation allows the President to target spending policies that do not have a legitimate and worthy public purpose by providing the President with an additional authority to propose the elimination of wasteful or excessive funding. These proposals then receive expedited consideration in the Congress and a guaranteed up-or-down vote. This legislation would also allow the President to delay funding for these projects until the Congress has had the chance to consider the changes.
According to the Constitution, it is the Congress which has the power of the purse. If the President does not agree with what Congress has done, he can veto a bill. And Congress can respond by overriding that veto. That is the nature of the process. What Obama is proposing is that the Executive take on more of Congress' role. Well, if he wishes to do that the Constitution also has a provision for it. It is called a Constitutional amendment (OK, there is also a Constitutional convention, but that is even less likely than an amendment). For someone who is reputed to be a Constitutional scholar, you would think they would know this. Beyond this, it must be remembered that while some earmarks are irritating, others accomplish some useful purpose. Even taken together they comprise a tiny fraction of the federal budget. Add in that there are much bigger areas of waste and fraud, many of them in the defense budget and you have to wonder how such a large surrender of Constitutionally mandated Congressional power for such a questionable gain can be justified. On the other hand, a line item veto in the hands of the Executive is a wonderful way to alternately bribe and blackmail legislators. It is hard to see legislators doing this to themselves, but stranger things have happened. As it is, this proposal shines further light on Obama's view of the Presidency and how little difference there is between it and that of Bush's unilateral Executive.
157. According to a May 24, 2010 story in the New York Times, CENTCOM commander General David Petraeus signed an order on September 30, 2009 permitting the insertion of JSOC, i.e. Special forces into both friendly and hostile countries in a broad swathe from the Horn of Africa through the Middle East to Central Asia for the ostensible purpose of intelligence gathering and disrupting militant groups. There are just so many things wrong with this it is hard to know where to begin. First, a military commander has no business issuing such an order because of its political nature. This is a policy decision and as such should come from the President and the Secretary of Defense. It is at the very core of the relationship between the government and the military in our country that civilians responsible to voters set policy and the military carries it out. This sets that principle on its head. Second, any JSOC forces captured in an unfriendly country would not be covered by the Geneva Conventions. They would be spies and could be executed. Third, Iran is a target of these operations. Any action with regard to Iran which results in violence either directly by JSOC forces, at their instigation, or with their complicity fits the definition of state sponsored terrorism, a charge which we have often leveled against the regime in Tehran. Fourth, running operations in allied countries with their consent and cooperation is one thing, but unilateral cowboy ops which the order allows could seriously complicate our relations with countries, like Saudi Arabia, Yemen, and Pakistan. Fifth, the order is overly broad in that it sanctions a smorgasbord of activities, some military, some intelligence gathering, some assassinations in a variety of countries over an immense geographic area. It is a license for JSOC to run wild. Sixth, the legal rationale for the use of JSOC forces in these ways is to "prepare the environment" for military action. This formulation dates back to JSOC operations during the Bush years. It was specifically chosen because it evades Congressional oversight turning intelligence activities (+ Congressional oversight) into military ones (- oversight).
158. On April 23, 2010, the Republican governor of Arizona Jan Brewer signed into law the most restrictive immigration law in the country. It made it a crime for any undocumented person to be in the state and required that police demand documentation from anyone they might reasonably suspect to be in the country illegally. Proponents were quick to say that this would not lead to racial profiling but this is exactly what it would do. At the time, Obama criticized the measure. Then on May 25, 2010, Obama reversed himself and ordered 1,200 National Guard to the border. He also pledged $500 million to support border security efforts. From 2006-2008, Bush ran a larger program involving up to 6,000 troops with little effect on crossborder migration. Put simply, this is election year pandering. Given the bad economy, anti-immigration feeling is up and polticians of both parties are seeking to cash in on it.
159. On May 26, 2010, US district court judge for DC Henry Kennedy ordered another Guantanamo inmate freed following a successful habeas petition by Mohammed Hassen, a Yemeni religious student studying in Pakistan. I have described some these cases in detail (items 57, 70, 114, and 135, for example). As of this time, the government has won 14 and lost 36 of these cases. That's a 72% loss rate. That is an astounding figure when you consider how willing the federal courts are to bend over and accommodate even extremely weak government arguments on terrorism and national security cases. It raises the question of why the Obama Administration is fighting habeas petitions even in cases where it knows the petitioner has been wrongfully imprisoned for years. The answer seems to be that it is a cynical political ploy to avoid conservative criticism at the expense of some very vulnerable individuals. So much, again, for the rule of law.
160. Around 4 o'clock in the morning on May 31, 2010, Israeli commandos assaulted a humanitarian convoy of ships, in international waters, carrying aid supplies to Gaza which has been under an Israeli years long blockade. 9 passengers were shot dead aboard the largest ship the Turkish Mavi Marmara. Turkey had been an unofficial sponsor of the humanitarian effort and Turkish officials had searched the Mavi Marmara and certified it carried only humanitarian cargo. The ships also carried dignitaries, aid workers, and peace activists from many countries. Israel immediately blamed their victims for getting themselves killed. The brutality of the Israeli attack and the fact that it took place in international waters puts this in the category of state sponsored terrorism. It was in a word a monumental botch that blew up in the faces of the Israelis. This was not how it was supposed to go down. The attack took place on Memorial Day a no news day in the US. The anti-peace Israeli Prime Minister Benjamin Netanyahu was scheduled to meet with Obama the following day and present him with a fait accompli. Meanwhile showing this Administration's close ties with Israel, Obama's Chief of Staff Rahm Emanuel was in Israel for the bar mitzvah of his son. The disproportionate use of force and the killings changed all this. The meeting with Obama was canceled and Netanyahu hurried home to address the international outrage and public relations nightmare. This was accomplished in part by a news blackout, passengers on the aid ships being held in communicado, and release of some video shot by the Israelis themselves purporting to show their soldiers armed with automatic weapons being threatened by unarmed passengers. Despite this, the Obama Administration refused to back a UN Security Council resolution condemning Israel. Instead it opted for language condemning the violence in general, including any by the passengers. Essentially, the Administration had taken up the Israeli line that the passengers had brought this on themselves.
On June 13, 2010, press secretary Gibbs announced that the Obama Administration approved of the Israeli military conducting its own internal investigation into its attack on the Mavi Marmara. It would have two non-voting international observers. This is an invitation to, indeed a presumptive acceptance of, a whitewash. Israel has rejected calls for an international investigation. Under international law, Turkey whose ship was attacked has the ultimate legal authority to decide how such an investigation should be peformed. The hypocrisy involved here can be easily illustrated. If the Iranians attacked an American ship, would Obama be satisfied with an investigation of the incident run by Iran's military?
Re the two non-voting observers, one is the Irishman David Trimble who with rabid neocon John Bolton created on the very day of the Mavi Marmara attack an organization called Friends of Israel. The other is a Canadian Ken Watkins who conducted a whitewash of an investigation into Canadians turning over Afghan detainees to be tortured.
161. On June 1, 2010, the Supreme Court in a 5-4 decision in Berghius (Warden) v. Thompkins ruled that criminal suspects, having been mirandized, must explicitly invoke their Miranda right to remain silent for it to be operative. This changes the standard from law enforcement seeking and receiving an explicit waiver and shifts the burden on to the suspect to invoke the right.
The facts are these. Following a shooting death in Southfield, Michigan on January 10, 2000, Van Chester Thompkins was arrested and mirandized. He expressly declined to sign a waiver of his Miranda rights. Whether he did so verbally is disputed. During three hours of police (custodial) questioning he remained largely uncommunicative. Toward the end of this period, he was asked if he prayed for the person he had shot. To this, he responded yes. This was taken as a confession. He was subsequently convicted and sentenced to life without parole.
The majority with Kennedy writing emphasized that 1) although Thompkins did not respond much at all, he did respond at least a little and 2) he did not explicitly invoke his Miranda protection. The minority with Sotomayor writing stressed that there was no evidence that 1) Thompkins had ever explicitly waived his Miranda right to silence and 2) his taciturnity during his interrogation argued, in fact, that he had not.
As Sotomayor writes in her dissent,
Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.
This marks yet another stage in this extremely conservative Court's reducing the rights, and protections, of the accused. Current Solicitor General and Obama nominee to replace the retiring Justice Stevens on the Court, Elena Kagan, sided with the police in the federal government's amicus submission in this case.
162. On June 5, 2010, Obama nominated James Clapper to succeed fired Director of National Intelligence Dennis Blair. He is a retired Air Force Lt. General. There are two things wrong with this nomination. First, it represents the ongoing militarization of US intelligence which began under Bush (with all the tunnel vision that entails). Second, Clapper was a Bush appointee. He became Undersecretary of Defense for Intelligence in April 2007, succeeding the infamous Stephen Cambone, and continued in that post under Obama. His nomination demonstrates yet again how the Obama Administration is a continuation of Bush's, not a break with it.
163. On May 21, 2010, the Obama Justice Department filed an amicus brief in the certiorari petition to the Supreme Court in the case of Holy See v. John Doe. This concerns an unnamed Oregon man (John Doe) suing the Vatican, the Archdiocese of Portland, Oregon, the Catholic Bishop of Chicago, and the Order of the Friar of Servants. He alleged sexual abuse by a Catholic priest in the 1960's when he was a teenager and that the Catholic Church had both failed to adequately supervise the priest and had concealed his history of prior abuse. Neal Katyal's name is on the brief as Acting Solicitor General but it was prepared while Elena Kagan headed that office. She was nominated to the Supreme Court on May 10, 2010, just before the filing.
It is the naming the Vatican, not the dioceses, in the suit which raises the legal question. Under the Foreign Sovereign Immunities Act of 1976 (FSIA), a sovereign state, and the Vatican is recognized as such by the US, cannot be civilly sued in American courts, except under certain conditions. One of these is the tort exception which
provides that a foreign state shall not be immune from the jurisdiction of United States courts in any case “in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.”
According to precedent in the Ninth Circuit in which the case arises, the finding that an employee acting in an official capacity and who commits a tort confers liability to the employer (vicarious liability or respondeat superior, let the superior answer) as a matter of state law. This is how state law entered the case, specifically the Oregon state supreme court's decision in Fearing v. Bucher (1999) which held that employers were liable even for the "intentional criminal acts of employees if the acts that lead to the criminal conduct were within the scope of employment." In Fearing, the state court found “the priest’s ‘alleged sexual assaults on plaintiff clearly were outside the scope of his employment’ under the traditional test," but under an alternate test vicarious liability applied to those “acts that were within the scope of employment resulted in the acts which led to injury to [the] plaintiff” What this meant, per the Ninth Circuit Court of Appeals, is that if a priest used his pastoral duties to abuse children then the church, the employer, was liable.
The government's brief basically took the holding in Fearing that abuse was outside the scope of priestly employment and stopped there. It argued that while Fearing may have created an alternate test for vicarious liability, it had not changed how an employee's scope of employment was defined. And as far as the FSIA and the Vatican were concerned, that was all that mattered.
There are several things that should be noted about this case. First, the government was not involved in this litigation but decided to file an amicus brief anyway advocating immunity for the Vatican in the Church's sex abuse scandals. What were they thinking? Second, the impact of the government's position, if it were to be accepted, would be to immunize foreign governments from civil actions taken against the criminal acts of their employees, except in the unlikely circumstance, the foreign country were directly behind such acts. Third, although it is buried in the footnotes of the government's brief, it is important to remember that the Vatican makes the argument that its priests are not its employees but the employees of the dioceses to which they belong. Given the Church's centralized power structure and about two thousand years of history, this is a thoroughly incredible claim. Fourth, it will be interesting to see how the five ultra-conservative Catholic justices on the Court vote on a case involving the Vatican. It certainly looks like the Obama Administration has, with its amicus brief, manufactured an out for them.
On June 28, 2010 (p.4) , the Supreme Court denied certiorari to the Vatican petition. This means the Vatican case will not be dismissed, and it will have to make its case in the lower court.
164. As reported in the New York Times on June 15, 2010, Yahya Wehelie is a Muslim American of Somali descent born in Virginia who has been placed on the no-fly list and can not return to the US. He is effectively being exiled without charge. Wehelie is neither radical nor religious. His family sent him to Yemen in hopes he might find himself and get married. He did both and was returning to the US to complete his education. His "crime" in the eyes of the FBI is that he had a handful of incidental encounters with another American expatriot Sharif Mobley who later joined al Qaeda and killed a Yemeni hospital guard. Apparently any American who travels to Yemen, considered a cheap place to learn Arabic, is now considered a terrorist suspect. The FBI's actions flout Wehelie's Constitutional rights, most notably his 5th Amendment right to due process and his 14th Amendment right to equal protection of the laws. They also amount to racial profiling. And they leave the distinct impression that, unable to capture real terrorists, terrorizing ordinary Americans is a legitimate substitute. That is they wish to show they can be tough even if they aren't effective, or rather to cover up how ineffective they are.
165. On June 17, 2010, the Supreme Court decided 5-4 in New Process Steel v. National Labor Relations Board that the NLRB, having only two members, lacked a quorum and that it could not issue rulings. On December 28, 2007, the terms of two NLRB members expired and there was one vacancy. This left the board with two members. Before leaving the members whose terms were expiring delegated their authority to these two members. The Supreme Court said no. No quorum, no decisions. Obama waited until April 2010 to make two recess appointments Mark Pearce and Craig Becker. After the SCOTUS decision, Pearce and a Republican nominee for the board Brian Hayes were confirmed on June 22, 2010. Craig Becker's confirmation remains in limbo. He is opposed by Republicans because (gasp!) he is pro-labor. Apparently being pro-corporation is no impediment to being a member of the board. More than 500 NLRB decisions could be affected by the Supreme Court ruling. 74 cases are currently in the courts; 5 on the same grounds as the SCOTUS decision. This is a scandal which spans two Administrations, but Obama's delays made a known problem worse. There are real costs to his lackadaisical, hands off approach to the confirmation of his nominees.
166. On June 21, 2010, the Supreme Court 6-3 sided with the government in Holder v. Humanitarian Law Project. This is a major win for the Obama Adminstration, and a major defeat for civil liberties. The case had been brought by various groups of which Humanitarian Law Project (HLP) as a challenge to the government's overly vague definition of "material support" of terrorism under four areas: training, expert advice or assistance, service, and personnel. The HLP had been working with the Tamil Tigers in Sri Lanka and the Kurdish separatist group, the PKK, in Turkey seeking to support their non-violent activities and teaching them how to replace violent action with non-violent alternatives. They cited the government's prohibition as a violation of their 5th Amendment right to due process because the government's definition of what constituted material support was too vague, and it is important to realize that many in this Administration thought it was unConstitutionally vague. They also claimed infringement of their 1st Amendment rights to free speech and assembly. Chief Justice Roberts who wrote the majority opinion held that, while groups like the HLP could voice their opinions independently of these groups, they could not in any way involve themselves or coordinate with officially designated terrorist organizations. He is particularly given to smooth vacuous arguments. Here he maintained that terroris groups like the Tamil Tigers and the PKK would use the knowledge of peaceful methods to further their violent aims. It is a very ahistorical view. Many organizations that were once called terrorist have been successfully reintegrated into normal political life precisely through increasing their understanding of legitimate negotiation, political organizing, and community service. Precluding any peaceful transition for them, or any help for such a transition, is enormously short-sighted. As the New York Times noted in an editorial, this decision could chill contacts between journalists reporting on these groups and academics studying them. It could leave open to prosecution lawyers who wrote a brief on a case in which a terrorist organization was involved. Roberts sought to address this by seeking to distinguish between "association" with such groups and supporting them. But this just pushes the problem back one stage because, if anything, the difference between association and support is even vaguer than the definition of material support which was the original question.
167. On February 18, 2010 created by executive order a deficit commission stacked with anti-Social Security and Medicare ideologues (see item 136). On July 1, 2010, Speaker Nancy Pelosi in an egregiously hypocritical and backstabbing move slipped into supplemental (i.e. must pass) war funding legislation a provision for an up or down vote on the committee's recommendations.
prior to the adjournment of the 111th Congress, any recommendations made by the National Commission on Fiscal Responsibility and Reform and approved by the Senate should be brought to a vote in the House of Representatives
The vote would be especially undemocratic because it would be taken by the lame duck Congress after the elections but before the new Congress came in. That Pelosi did this on the sly, that she did it at all, that she did it after criticizing Republicans for wanting to do something similar, stinks of cowardice, arrogance, and bad faith. Basically, she is backing Obama's attempt to cut Social Security but doing it in such a way that she, like he, can duck responsibility for it, if and when it comes up for a vote. And it is not just about sticking it to future retirees. Deficit reduction as the country moves back into recession is a surefire recipe for depression. All in all it is an action that can be taken to exemplify Obama and the Democrats in Congress. It betrays those who elected them. It is as disastrously wrongheaded as anything Bush ever did, but is executed with a dishonesty that Bush and the Republicans for all their malicious craziness never aspired to or thought necessary. The supplemental with the offending language passed in the House 215-210.
168. Obama committed himself to restoring scientific integrity to government after years of politicization and censorship under Bush. Yet, as reported in a July 10, 2010 LA Times story, 18 months into the Obama Presidency his science advisor John Holdren has failed to set guidelines to protect scientists and scientific endeavors. Instead government scientists are complaining of pressure to change "politically" inconvenient findings at rates equal to those of the Bush years. They are also citing fear of retaliation as a reason for not speaking out publicly. None of this is surprising. Obama appointed the pro-drilling, pro-development Ken Salazar as Secretary of Interior, and it was a given that his policies would run headlong into scientific questions on their environmental impacts. The muzzling of science can also be seen by numerous federal agencies, such as OSHA, the EPA, Fish and Wildlife, and of course the MMS, in their incredibly mild and dilatory response to the BP well blowout in the Gulf of Mexico (item 91).
169. During his campaign Obama criticized free trade agreements like NAFTA (item 55), at least in public, before voters. As President, he quickly shelved any plans to rework the treaty. Similarly, on April 1, 2008, Obama opposed a free trade agreement with Colombia “because the violence against unions in Colombia would make a mockery of the very labor protections that we have insisted be included in these kinds of agreements.” But on July 7, 2010, mockery of labor protections seemed to count for little as Obama announced he would push the free trade agreement with Colombia negotiated under Bush, as well as one with Panama. He had previously announced on June 26, 2010 that he would back a free trade agreement with South Korea opposed by labor in this country.
170. On July 16, 2010, the SEC filed a proposed settlement in federal court to resolve its outstanding civil case against Goldman Sachs with regard to its Abacus 2007-AC 1 CDO. In 2007, Goldman at hedge funder John Paulson's instigation put together a CDO filled with crap which it sold via the now defunct ACA to various dupes, primarily it would seem Deutsche Bank and Royal Bank of Scotland. Paulson then bought a synthetic CDO made up of CDS betting against the initial CDO. As an underwriter of a new security, the Abacus CDO, Goldman had a duty to inform potential investors of all material facts in its possession. The most obvious omission among these was that the CDO had been specially constructed to blow up. Goldman sought to defend itself saying it lost $90 million on the deal. What it didn't say was that these losses came from equity tranches it had agreed to take on and which it subsequently couldn't find buyers dumb enough to dump them on. The Obama Administration has been largely AWOL when it comes to prosecuting fraud associated with our various economic and financial crises. It was something of a surprise then that the SEC, a lapdog of the financial industry, decided on April 14, 2010 in a 3-2 vote to charge Goldman. Usually decisions to prosecute in such cases are unanimous. Both Republican commissioners Kathleen Casey and Troy Paredes, however, wanted to let Goldman be Goldman and voted unsuccessfully against the action. Then after a lot of posturing and negotiating Goldman and the SEC came to a deal. Goldman agreed to pay $550 million in fines and remedies. The SEC quickly trumpeted this as a major victory and the largest fine it had ever exacted. But it really was more business as usual.
$550 million is certainly a large sum but it is only 3.5% of the $16.2 billion Goldman paid in wages and bonuses to its employees. It is only 0.8% of its market cap. Although this was only one deal of many that Goldman was involved in, it looks like a global settlement (as in no further SEC litigation on its CDO deals). Goldman admitted no wrongdoing but was enjoined from committing fraud and omitting material facts in the future. It also agreed to an internal audit and some extra reporting requirements. Of the $550 million, $150 million would go to Deutsche Bank and $100 million to Royal Bank of Scotland. The remaining $300 million (which included the $15 million Goldman originally charged to put together the Abacus deal) would go to the government. As happened in the SEC/Bank of America settlement (item 76), the SEC wants to let Goldman off easy on this and perhaps all similar cases. In addition, almost half of the settlement would go to overseas banks. Beyond on all this, if this case had gone to trial, the discovery process would have shone a bright light into the machinations of Wall Street's largest and most destructive player. If the judge accepts the SEC/Goldman settlement, this won't happen. For this reason alone, a $550 million fine is cheap for what Goldman gets out of it.
171. Since 9/11, spending on intelligence has exploded and now runs around $75 billion a year, 2 1/2 times its pre-9/11 size. Some 70% of this goes to private contractors. At the same time the role of the Department of Defense in spying has similarly grown. 2/3 of intelligence programs now run through the DOD. In addition to this, it has become a commonplace to appoint military men to top civilian intelligence positions. The last two DNIs Mike McConnell and Dennis Blair were both retired admirals. Obama's latest nominee for this post, James Clapper, is a retired Air Force general.
On July 19, 2010, Dana Priest and William Arkin at the Washington Post began a series of articles on this subject. I should point out that Tim Shorrock also covered this subject in his 2007 book Spies for Hire. The trend to outsourcing intelligence has continued under Obama. As Priest and Arkin summarize:
* Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.
* An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.
* In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings —about 17 million square feet of space.
* Many security and intelligence agencies do the same work, creating redundancy and waste. For example, 51 federal organizations and military commands, operating in 15 U.S. cities, track the flow of money to and from terrorist networks.
* Analysts who make sense of documents and conversations obtained by foreign and domestic spying share their judgment by publishing 50,000 intelligence reports each year —a volume so large that many are routinely ignored.
What is being described is a bloated system full of waste, overlap, and turf wars which is not only not protecting us. It has become an adjunct of the surveillance state, a nexus of secret government, and a danger in its own right, unknown, unknowable, and unaccountable. It is another example of a Bush excess which Obama has embraced and expanded.
It is important to remember just how bad the track record of US intelligence is. Its last major success was finding missiles in Cuba in 1962. There was the disastrous Bay of Pigs. Coups in Guatamala and Congo that destabilized those countries or as in the case of Iran embittered our relations for decades. There was a much hyped missile gap with the Soviet Union that didn't exist. The torture, assassination, and drug running of the Vietnam era. Not to mention the greatest intelligence failure of all time, not predicting the collapse of the USSR. The backing of the Afghan mujahideen against the Soviets which led to the Taliban and then al Qaeda. The failure to catch the nuclearization of India and Pakistan in advance. Iraq's invasion of Kuwait. 9/11. WMD in Iraq. Failure to catch bin Laden or Zawahiri for 9 years. The shoe bomber, the underwear bomber, the Times Square bomber, etc. It is hard to imagine a more impressive history of cockups, screwups, failures and disasters. Yet it is this opaque militarized Keystone Kops system of intelligence outsourced to private contractors that Obama has not only embraced from the Bush era but defended and expanded.
On October 28, 2010, the government released a figure for its total spending on intelligence for fiscal year 2010: $80.1 billion. The last time the government released this number was in 1998 when it was $26.7 billion. That is the intelligence budget has tripled in 12 years.
172. On July 16, 2010, the Supreme Court denied stays in the cases of Abdul Aziz Naji v. Obama and Farhi Mohammed v. Obama. These were two Algerians held since 2002 who said they would rather continued to be incarcerated at Guantanamo than returned to Algeria where they feared torture and death from both the government and Islamist insurgents. The Obama Administration had been trying to force their repatriation despite their concerns.
173. On July 19, 2010, as part of a puhback against charges that Tea Partiers were racist, a conservative blogger Breitbart put up a youtube of Shirley Sherrod an Afgrican-American USDA official speaking before an NAACP gathering on March 27, 2010. In the video, Sherrod described how she wondered if she could help a white farmer because of his "superior" attitude. Reaction to the clip was swift. How dare Sherrod use her position to discriminate! The next day, Sherrod was told she was being forced to resign, that is fired. The demand for her resignation came from the top, Agriculture Secretary Tom Vilsack with White House backing. Even the NAACP joined in the condemnation. There was only one problem. It was all a set up, a smear, an ambush. The youtube had been heavily edited to project the most negative and distorted image possible. This became clear when Sherrod's whole talk was made available. Sherrod had not misused her current position. She was talking about an event from 1986, 24 years ago when she was not even yet in government. She was talking about dealing with her own feelings of racism, of helping a white man when some many African-American farmers were suffering. Her speech was about how she overcame her own prejudice when she realized that issues of social justice know no color. For once the media actually did a little digging. The white farmer was found and interviewed. He not only praised Sherrod. He credited her with saving his farm. Incredibly but also in some sense predictably as these facts came out, Vilsack stood behind his decision to fire Sherrod. But the sheer malicious stupidity of the whole affair struck a public chord, and it was an election year. The next day, the NAACP said it had been snookered. The White House offered an apology of sorts (through its Press Secretary Robert Gibbs), and Vilsack said he had reconsidered Sherrod's firing and was making an apology of his own.
As for Sherrod, she was saying that she needed a few days to decide whether she wanted to go back and work for a government that treated her as she had been treated. This is a classic case of the White House and Vilsack shooting first and only belatedly asking the questions they should have asked before acting, after everyone else already has. It also shows how afraid Obama and his Administration are of the right, that a single rightwing blogger can manufacture a "scandal" and provoke a rush to judgment and a summary dismissal with absolutely zero factchecking. How can we expect good people to work in government if they can so easily become incidental political casualties? You see it isn't just Shirley Sherrod. It's any decent, hard working American employed in government or considering such a career. They have to be asking themselves is it really worth it. Is it worth being responsible, going that extra mile, if, out of the blue, their words can be twisted, their life turned upside down, and their career ended, for nothing more than a meaningless political skirmish between the parties of Tweedledum and Tweedledee.
174. On July 21, 2010, the DOJ sent a letter to Congressman John Conyers (D-MI) and others concerning an investigation into the Bush era political firings of US Attorneys (see item 2 of the Bush scandals list). The illegal political manipulation of US Attorney posts by Karl Rove, then Senator Pete Domenici (R-NM), then Representative Heather Wilson (R-NM), Attorney General Alberto Gonzales, Deputy Attorney General Paul McNulty, White House liaison Monica Goodling, Gonzales' Chief of Staff Kyle Sampson, and McNulty's Chief of Staff Michale Elston was blatant. Yet Nora Dannehy the special prosecutor selected by then Bush Attorney General Michael Mukasey to look into the firings found insufficient evidence for any prosecution for lying and obstruction of justice. What we have here is an example of the Bush Administration investigating itself, giving itself a Get Out of Jail Fee card, and the Obama Administration signing off on its whitewash.
175. On June 23, 2010, the CIA announced it had awarded a $100 million contract to Blackwater (aka Xe) to protect CIA personnel abroad. This came one day after the Commission on Wartime Contracting heavily criticized the State Department for giving Blackwater a $120 million contract for similar services in Afghanistan. Blackwater by a religious rightwing nutcase Erik Prince. He used his political connections post-9/11 to expand Blackwater from a tiny government contractor into one doing hundreds of millions of dollars a year in contracts providing what are essentially mercenary services to the military and intelligence communities. In Iraq, Blackwater had a black reputation (see item 256 of the Bush scandals list). On September 16, 2007, this culminated in the Nisoor Square massacre where its guards killed 17 unarmed Iraqis and wounded 24 others. Nevertheless, the Obama Administration continues to steer big contracts to it. Put simply they don't care about its dreadful record, what they like about Blackwater is that they can contract out their accountability to it. So when Blackwater engages in criminal or prohibited activities, the official blowback is on the company. The government only catches some greatly reduced heat for employing them. It's all very convenient, and corrupt, but it's why Blackwater still gets government work.
176. On July 25, 2010, Wikileaks released some 92,000 files from US forces in Afghanistan covering the years 2004-2009. They painted a far more pessimistic view than official accounts of the conflict, the Afghan government, police, and army. But the really big bomb shell was validation of the charge that has been out there for some time that Pakistan's intelligence service the ISI had been aiding and abetting the Taliban in its attacks, including those against US forces, in Afghanistan. The files were prior released to the UK Guardian, Germany's Der Spiegel, and the New York Times so that they could write stories on them. Mark Mazzetti and Eric Schmitt, like the good Establishment reporters they are, went with their DC bureau chief Dean Baquet to the White House to lay out everything they had. So much for the independence of the Fourth Estate.
Despite these files undercutting the government's official narrative of the war and the whole premise for Obama's surge, on July 27, 2010, the House passed 308-114 the Senate version of a $33 billion supplemental funding it to the end of the fiscal year. The release of the files had no effect, but we should have known it wouldn't. Facts don't matter to our elites. Lying to us doesn't matter to them. Why should being caught in their lies make any difference?
177. On July 29, 2010, it was reported in the Washington Post that the Obama Administration would seek to add the words "electronic communication transactional records" to the data that the FBI could get on anyone without a warrant. Currently, it can "legally" ask for only name, address, length of service, and toll billing information without a court order. The addition to the Electronic Communications Privacy Act would allow the FBI access to your entire web browsing history. It would also include the addresses of everyone you sent email to and received email from, although not their actual contents. All of this information could be acquired on you, again without court order, by the FBI, an organization that has abused these kinds of broad grants since the days of J. Edgar Hoover and its inception. And of course, those providing the information would be required not to tell you the FBI was spying on you. Obama came to office promising to restore privacy rights and end the excesses of the Bush era. Instead as here, he is merely trying to legitimize them.
178. With state budgets running massive shortfalls in 2010, the jobs of hundreds of thousands of teachers were at risk. As a result, the House attached some $5 billion in funding to a supplemental appropriations bill for the wars, to save 140,000 teaching jobs. The response of the White House was a threat to veto the whole bill. Why would Obama issue such a threat to a bill which funded his wars and save teachers' jobs? The answer is the spending to keep teachers would be offset in part by cuts to three education programs: $500 million from the Race to the Top program, $200 million from the Teacher Incentive Fund, and $100 million from funds to start up charter schools. The White House probably didn't like any of these cuts but was particularly incensed by the cut to Race to the Top. This is Education Secretary Arne Duncan's prize program. It has states compete with each other to see which will bring their educational systems into conformance with Duncan's education vision. That vision is mostly about the corporatization of education. Like its predecessor No Child Left Behind, it is heavy on all kinds of student, teacher, school, and system evaluation, but, like that program, it doesn't actually result in better education, just excessive concentration on testing, teaching to tests, and test scores.
The story thickens in that the Race to the Top program has a budget of $4.3 billion for 2010. Yet Duncan who has had had this money for more than a year has awarded only $600 million of it and to only two states. So it is not like he was in a rush or had already tied this money up or had even spent that much of it.
On July 1, 2010, despite the veto threat, the House passed the funding for teachers with the cut to Race to the Top. On July 15, 2010, the White House renewed its veto threat. What followed was a classic Congressional cave. On July 22, 2010, the Senate disagreed with the House amendment adding the teacher funds, effectively stripping it from their version of the bill. The Senate did so by unanimous consent, a particularly cowardly way to go about it since it meant no Senator had to have his or her name attached to a vote against cutting teacher jobs. Then on July 27, 2010, the House concurred in the Senate action by a vote of 308-114. The funding for teachers was out and the money for the wars went through, and, of course, Arne Duncan got to keep the funds he hasn't been using. This episode explodes the myth (again) that Obama is a conciliator and avoids conflict. When he wants something as here, he does not hesitate to play hardball. What is so surprising is that he was willing to make this point on this issue. Without teachers, there is no race anywhere. Yet given the option between ideology and practicality, Obama went with ideology.
However the White House may pay a price for its actions. It asked for $1.4 billion in 2011 budget for Race to the Top. The House cut that to $850 million, and the Senate is considering only $675 million. Of course, you might ask why they should appropriate any money for Arne Duncan and his program seeing as his two options for it are either to sit on it or spend it poorly.
179. On August 1, 2010, it was announced that John Limbert, the head of the State Department's Iran desk resigned after 9 months in the position over disillusionment with the Obama Administration's failure to engage the Iranian regime. He also cited a lack of personnel with knowledge of either the culture or language. This sounds like a repeat of the Bush Administration's disastrous stance that expert knowledge was suspect, not to be trusted, "going native." Limbert was one of the 52 hostages held in Iran following the 1979 revolution. Meanwhile Obama continues his policy of sanctions, sanctions, sanctions, and Israel makes bellicose gestures such as running simulations this week in Romania of Israeli air attacks on Iran.
180. Back on January 21, 2010, the Supreme Court came out 5-4 with its decision in the Citizens United case. It is hard to write about this case because almost everything about is upside down, turned inside out, and generally opposite to what it is supposed to mean. This goes even so far as the name Citizens United itself. The name would suggest a group of ordinary concerned, politically active voters, but the truth it is was an astroturf group representing conservative, corporate interests. In brief, this group put together a 90 minute video smear entitled Hillary Clinton: the Movie. This was in January 2008 and Clinton at the time was running for the Democratic nomination for President. Citizens United released the film to theaters and on DVD. It had also set up a deal with a cable company to run it for free on its pay-for-view channel. It had also prepared ads to advertise the film. This ran afoul of the 2002 Bipartisan Election Reform Act which banned
corporations and unions from using general treasury funds to make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualified federal elections
Such electioneering communications were defined in the act as "any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary or 60 days of a general election." The FEC in its regulations made the commonsense emendation that this referred to "public", i.e. free mass media and defined "public" as receivable by 50,000 or more people. Under this interpretation, Citizens United could release Hillary to theaters and on DVD precisely because the 50,000 threshold would not be met, but could not release it to cable where it would be exceeded. Citizens United argued that its film was a documentary and so not an electioneering communication. The DC district and appelate courts disagreed. In petitioning the Supreme Court, Citizens United goals were fairly modest: to erode some of the restrictions on corporate activities, not to challenge those restrictions in their entirety.
But then something amazing happened, or not so amazing if you consider how political and reactionary the Supreme Court has become and to what extent Chief Justice Roberts lied at his Senate confirmation hearings when he said he was a strong defender of stare decisis, or respect for precedent. The Court rejected Citizens United argument but, instead of that being the end of it, the Court substituted it own argument, a much broader one in its place. It sought, on its own and in a fit of what conservatives call judicial activism, to obliterate the difference between individual and corporate campaign spending. In doing so it used as its vehicle a challenge to Austin v. Michigan Chamber of Commerce (1990). The Court had held in this case that a state law prohibition of the use of corporate funds to support or oppose candidates was not a violation of either the 1st or 14th amendments. It did so on the basis that to do otherwise would lead to excessive corporate influence on elections. It also noted that corporations could still set up a segregated fund to engage in political speech. Of course, the decision in Citizens United goes far beyond any one precedent. Distinctions between individual and corporate political expenditures long predate Austin. But it is one of the tricks of this Court to justify trashing stare decisis on the grounds that more recent decisions (in this case 20 years) are less settled law and so more open to overturning. The hypocrisy did not stop there. What is truly shocking about this decision is the argument the Court invented then upheld that any limitation on corporate political spending would have a "chilling" effect on corporate free speech rights. Before this case ever came along, corporations owned our political system. This was as clear under Bush as it is under Obama, as clear with regard to Republicans as it is with Democrats. The Court legislated an outcome to a problem that did not exist and in doing so codifed one that is killing, or has killed, our democracy. They are not concerned that corporations completely smother and overwhelm individual political speech. It is rather that any limitations however minor and ineffective must not be put on the unbridled power of corporations. Citizens United is both an important and unimportant decision. It both changes everything and changes nothing. It validates and extends the corruption of our political system that has already occurred. It is an illustration of how increasingly our elites are dispensing with even the fig leaves that this is a government of the people, by the people, for the people.
181. A July 29, 2010 McClatchy article reports that the Obama Administration is seeking to stimulate arms exports by reducing government controls on them. His plan is to double US arms exports by 2015. The US already has the dubious distinction of being the world's largest arms exporter with some 30% of the market. The danger is that this expansion will not only result in the loss of US technology but in general destabilization of the planet. If nothing else it makes his award of the Nobel Peace Prize even more inexplicable than it already was.
182. On August 2, 2010, a Glenn Greenwald post detailed how Project Vigilant (Executive Director at the time of this writing one Chet Uber) surveilled a dozen regional internet service providers in the US and their some 250 million accounts (ISP addresses). Using information gleaned from their access, they attach names to these addresses and create files on each of them. They then hand this information over to the US government. They do this as volunteers to circumvent laws which prevent the government doing this directly. However those who are known to belong to Project Vigilant are a group of heavy hitters in the area of cybersecurity. Their ostensible funding comes from a murky security outfit called BBHC Global. Oh, and Project Vigilant has been engaged in this activity for a decade, or in other words over the period that the web has seen its most explosive growth and really come into its own. What this sounds like more than anything is that some of our spy agencies are using BBHC Global as a cut out to handle data gathering and mining that it would be illegal for them to do otherwise. The take home message here is that your every keystroke on the web is not only being monitored by people you don't know but it is also being transmitted to the government, and this has been going on for years.
Moreover, this kind of surveillance extends beyond the internet. Uber was also a founder of the FBI's Infragard program. This includes some 10,000 companies, including most of the Fortune 500, dedicated to sharing information on their clients with the government and tipping off the government to any "suspicious" activities by them. Contrast these massive, unwarranted, and unaccountable invasions on our privacy, with how opaque and secretive the Obama Administration has been and how determined it has been in pursuing even legitimate whistleblowers. As Greenwald writes at the end of his piece, "while these factions demand total secrecy for their actions, they simultaneously demand that you have none for yours."
183. In a poll, released August 5, 2010, for the neocon-ish Brookings Institute performed by the Universtiy of Maryland under the direction of Zogby International of 3,976 citizens in 6 Arab countries (Morocco, Egypt, Lebanon, Jordan, UAE, and Saudi Arabia) found that Barack Obama's personal standing and that of his Administration had plummeted. In 2009, Obama was viewed favorably by 42% of respondents. In 2010, this had dropped to 20%. His negatives were even worse, going from 23% in 2009 to 62% in 2010. The single biggest driver behind this abrupt fall in his popularity was his support of Israel and his failure to change the dynamic of the Israel/Palestine conflict. The US was already viewed fairly negatively in the Arab world. Obama's election represented an opportunity to mend fences and make a fresh start in a strategically important part of the world. The poll results show the window for that has passed.
184. On August 24, 2010, the Obama Administration submitted a brief arguing that states and other groups should not be allowed to file suits against major coal fired electric plants for creating public nuisances with their greenhouse gas emissions. The Obama Administration asserted that any action should be left up to the EPA and that the EPA had, in fact, made changes to the standards. Going back to Jimmy Carter, however, Democratic Administrations had backed such complementary suits. In addition, the new standards the government cited only covered new plants, not the existing plants which were the object of the suits. The Obama Adminstration has yet again bought into an industry argument and sided with corporate interests over those of ordinary Americans.
185. An important weapon in financial regulation, especially in the era of Too Big to Fail (TBTF), is anti-trust action. But as a September 8, 2010 Washington Post article reports, the anti-trust division of the Justice Department under Obama has been as supine in its actions as the rest of the Administration. The article highlights primarily Main Street but the real failure has been in letting the TBTF to get even bigger.
186. For those who were disappointed in Obama's nomination of the non-descript, Presidential powers supporting Elena Kagan to the Supreme Court to replace the last of the Court's great liberals John Paul Stevens (who, in a further bit of irony, was nominated by the Republican Gerald Ford), another source of criticism of the nomination has been vindicated. It was pointed out at the time that as Solicitor General Kagan had signed off on briefs in cases that would likely come before the Court. However as reported on September 10, 2010, Kagan has removed herself from 21 of 40 cases the Court has so far agreed to hear in its coming term. This means that the Court's four radical reactionary justices, Roberts, Scalia, Alito, and Thomas, if they agree with the appeals court decision, will constitute an effective majority. This is because any 4-4 tie leaves the lower court's decision intact. These decisions will not establish precedent across the whole federal court system, but in important areas they don't need to. Financial regulation cases in the New York circuit, Guantanamo cases in the DC circuit, and national security/CIA cases in the Virginia circuit, all have the potential to be substantially impacted by Kagan's high recusal rate. All of this was foreseeable and foreseen, as much by critics as by those in the White House. Kagan's recusals on important issues were part of the calculation of the nomination in the first place.
187. Census data for 2009 released on September 16, 2010 showed that the nation's poverty rate increased to 14.3%, that is 43.6 million Americans, or 1 in 7. This is the highest rate since 1994.
188. On September 17, 2010, the Second Court of Appeals in New York ruled that Royal Dutch Shell was immune from prosecution under the Alien Tort statute for its complicity in human rights violations in Nigeria. The law gives US courts jurisdiction to hear violations of international law. Writing the opinion, Jose Cabranes declared,
The principle of individual liability for violations of international law has been limited to natural persons -- not ‘juridical’ persons such as corporations -- because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an ‘international crime’ has rested solely with the individual men and women who have perpetrated it
What this decision shows is that when it is convenient or useful for corporations to be "individuals", as in the Citizens United case (item 180), the federal courts see them as such, but when, as here, such a status would confer liability on them, the courts suddenly draw distinctions between natural personhood and corporate personhood. It is another example of our two tiered justice system, abettor to the "haves", punisher of the "have nots".
189. Elizabeth Warren was chosen by Harry Reid (D-NV) of all people to be the chair of the Congressional Oversight Board for the TARP. Warren was unusual in that she took her job seriously and was a vocal critic of the banking industry and how the TARP was being run. As part of financial reform, she was the primary advocate for an office to protect consumers from bad and predatory practices of the financial industry. The result was the Consumer Financial Protection Board. It was largely gutted in the House (end of item 39). In the Senate, the decision was made to have the pro-business Geithner to set it up at Treasury and then, when a new director was confirmed, transfer it over to the contemptuously anti-regulatory Fed. As the 2010 elections approached and electoral disaster loomed for the Democrats, progressives thought Warren might be nominated as the CFPB's first head. She was afterall the obvious choice for the post. Geithner who had been grilled by Warren over the TARP was against the idea. Retiring Senator Christopher Dodd (D-CT), chair of the Senate Financial Services Committee and one of the greatest whores for the financial industry in Congress, hinted loudly that she would be unconfirmable. Meanwhile Obama dragged out the process. But Democratic hopes for November continued to darken. Finally, Obama acted with a typical Obama feint. On September 17, 2010, Obama named Warren as Assistant to the President and Special Adviser to the Secretary of the Treasury tasked with getting the CFPB up and running. But as Press Secretary Gibb quickly made clear, Warren would not be its first director. He said she did not want the job but would be instrumental in choosing a director. However, Warren to head the already greatly weakened CFPB, it is likely that the board will fade into the Fed's bureaucracy, unnoted and forgotten.
190. On September 21, 2010, the White House announced that Larry Summers (item 6), the head of Obama's economic team, and director of the National Economic Council, would leave to return to his professorship at Harvard. The Obama Administration is the most corporate friendly and corporate dominated in history, eclipsing both the Clinton and Bush Administrations in this regard. However, the midterm 2010 elections were looking bad for the Democrats and the sop of Elizabeth Warren had just been thrown to liberals. So it was leaked that Obama was looking for someone from the corporate world to counter the anti-business image of this most corporate of Administrations.
Summers exercized great power over Obama's economic policies, but he was a jerk and had been thwarted in his ambitions to head either the Fed or the Treasury. Around the two year mark of many Administrations there is a march to the exits by personnel. If they stay longer they may be pressured to stick around through the next Presidential election cycle. Leaving after two years, one has established one's cred that one has connections with the current Administration and it gives one at least two years to draft off them.
191. On September 20, 2010, the Inspector General of the Justice Department (DOJ IG) released a report critical of FBI surveillance of domestic groups from 2001 to 2006. Among those targeted were the pacifist Catholic Thomas Merton Center in Pittsburgh, a Seattle anti-war activist, Quakers, Greenpeace, Catholic Workers, and PETA. It's important to remember that IG reports notoriously pull their punches. When an IG report is critical, that means even they couldn't whitewash what went on, although they invariably minimize both what happened and its consequences. The report maintained that the Thomas Merton incident was just the result of the poor decisions of a couple of agents. What this ignores is the pattern of groups targeted and the incompleteness of the report taking as it does only events happening through 2006.
In any case, the FBI learned its lesson and would not try to do anything like that under Obama, right? Well, not really. Just 4 days later on September 24, 2010 the FBI conducted a series of raids against local anti-war activists in Chicago and Minneapolis looking for ties between them and terrorist groups in Colombia and the Middle East under the recently court sanctioned material support for terrorism doctrine (see item 166). As in the Bush years, this has nothing to do with the war on terror. Rather it is a convenient means to punish dissent at home, chill debate, and further trash the First Amendment. The Washington Post covered this later on June 6, 2011.
192. As noted by Glenn Greenwald, a September 27, 2010 story by Charlie Savage in the New York Times reports that the Obama Administration is preparing legislation seeking to force encrypted email systems like Blackberry, social networking sites like Facebook, and peer to peer services like Skype to install backdoors which the government can use for surveillance and side step the various privacy protocols these systems use . Ostensibly, this would be on a case by case basis and need a court order. We have seen this all before. It is called the NSA. Once the government is given access to communications it invariably hoovers up as many of them as it can, all in the name of national security, keeping the country safe, the war on terror, etc. It doesn't really matter if it is has the legal authority to do so or not. The determinant here is access. If it has that, the hoovering happens. If it is caught out or if there is a sufficiently big stink later, justifications and denials are fabricated as needed. This expansion can also be seen in the second story Greenwald cites. The government is pushing to force banks via a change in Treasury department rules to report all money transfers to and from the country no matter what the size and including the Social Security numbers of both senders and recipients. Up to now, only transfers of $10,000 or more were required to be reported.
What is important to realize is that all this information the government wants is not for any specific investigation. It is information the government wants to data mine at the price of undermining our privacy. But really where does it end? The answer is that as we go down this road we find it never ends. The government can't make sense of all the data it currently vacuums up. Yet it constantly wants more. It's solution to finding the needle in the haystack is always to add more hay. The result is a huge, expensive, and growing, largely privately contracted domestic spying apparatus, but in virtually every instance where a terrorist plot has been uncovered, it wasn't this surveillance state but ordinary old fashioned police work that deserved the credit. This raises the question of whether we need a surveillance state for the war on terror or rather whether we need a war on terror as a useful excuse to justify a surveillance state.
193. Despite the fact that the FDA approved the birth control pill in 1960, it became available legally to all unmarried women in 1972 as a result of Eisenstadt v. Baird, and countless studies have been conducted on oral contraception over the last 50 years, a September 23, 2010 story reports that Health and Human Services Secretary Kathleen Sebelius has ordered a year long study to determine whether contraception counts as an essential preventive health service. A year of study and another year for the rule making process for what is from a medical point of view a non-issue. Why then the obvious delaying tactic? Under Obamacare essential preventive services are to be provided without copays or deductibles. A delay will not only allow anti-contraception forces, like the Catholic church, two years to organize opposition. It also means that insurance companies get at least an extra two years of not having to cover contraception. For Obama, it is a no lose strategy. For women, not so much.
194. Per a September 30, 2010 story in the New York Times, a Kaiser Family Foundation study found that the number of people on Medicaid increased by 3.7 million to 48.5 million in 2009. This is a sign of the worsening economic conditions in the country. Because states share in Medicaid funding, this means their budget shortfalls will continue, also a sign of worsening economic conditions. About 1 in 6 Americans now are on Medicaid.
195. On September 20, 2010, one of the country's largest home lenders GMAC suspended foreclosures in 23 states (states where foreclosures must be approved by a court) after it became known that it was fabricating paperwork in its foreclosure proceedings, i.e. it was lying to and perpetrating numerous frauds upon the court. This was followed by JP Morgan announcing a similar suspension on September 29, 2010 and on October 1, 2010, the nation's largest home lender Bank of America followed suit. The principal issue cited was robo-signing. This is where a single bank official signs thousands of affidavits a month saying they have reviewed a foreclosure file and attest to its accuracy, a clear impossibility. As Yves Smith notes, the whole paper trail from origination through securitization appears to have been botched, multiple steps, each legally necessary. This both includes and goes beyond the use of MERS (see item 94). The potential for liability is vast. But even more, in casting doubt on who really holds and owns the title, it could bring the housing market to a standstill for years. How many people will be willing to make what is for most of them the largest purchase in their lives not knowing for sure that the bank they are buying their house from actually owns the property? From the beginning, it has been known that the banks were involved in massive and ongoing frauds. Yet rather than uncover, investigate, and prosecute these banksters the Obama Administration has been doing all that it can to run interference for them.
On October 8, 2010, Bank of America halted foreclosures in all 50 states. Meanwhile, on October 9, 2010, 40 state attorney generals were joining forces to investigate foreclosure fraud, and pressure was building for a moratorium on foreclosures. And the White House? According to David Axelrod, on October 10, 2010, they opposed a moratorium and hoped banks could quickly sort out the glitches in their paperwork, and by implication get back to the business of throwing people out of their homes. This demonstrates less how wildly out of touch the Obama and his economic and political advisers are with the plight of ordinary Americans and more how wildly responsive they are to the whims and caprices of the banks, that they can characterize the massive frauds the banks are engaging in as simply paperwork problems.
On October 13, 2010, the joint foreclosure fraud investigation had been joined by the Attorney Generals of all 50 states. Perhaps as important a development, JPMorgan, in so far as it could, pulled out of using MERS casting doubt on both its current and past mortgage filings through this electronic registry.
On October 18, 2010, Bank of America ended its moratorium in the 23 states with judicial foreclosure. On October 19, 2010, GMAC also decided to restart foreclosure proceedings. There is no way in the world that these companies have addressed or rectified any of the issues that sparked the moratoria in the first place. In the case of BoA, we are talking some 102,000 foreclosures. They could not have reviewed this number of filings and fixed the "paperwork" on them in a mere 10 days (4 business days). It looks rather like with the complicit backing of the Obama Administration they are going to try to brazen out the process in the courts.
196. On April 27, 2010, HR 3808, the Interstate Recognition of Notarizations Act of 2010, passed the House by voice vote. On September 27, 2010, it passed the Senate by unanimous consent. It requires
Requires each federal and state court to recognize any lawful notarization occurring in or affecting interstate commerce which is made by a notary public licensed or commissioned under the laws of a state other than the state where the court is located
Requires such a notarization to: (1) use a seal of office as symbol of the notary public's authority; or (2) have the seal information, in the case of an electronic record, securely attached to, or logically associated with, the electronic record so as to render the record tamper-resistant.
This may look innocuous but it is anything but. It is, in fact, an attempt by a bought and paid for Congress (hence the lack of roll call votes on it) to short circuit challenges to bank documentation in foreclosures. All aspects of the housing disaster from the originations through the often multiple securitizations were characterized by massive and systemic fraud and criminal negligence. The legally requisite paper trail was either lost or intentionally destroyed. The result is that the back end of this, the foreclosure process, has been seriously, perhaps irrevocably, compromised. The banks' response has been to engage in fraud upon the courts (see item 195). They have been fabricating documentation and submitting false affidavits. HR 3808 would give foreclosure courts, which tend to already be favorably disposed toward banks, a legal justification for accepting these fraudulent materials. In addition, the inclusion of electronic data looks like it would allow submissions from the highly dubious MERS system (item 94). This is another example of crony capitalism at work. The Obama Administration has covered the past frauds of the banks by refusing to investigate and prosecute them. Rather than pay the price for these past criminal acts, the banks have simply gone to their paid politicians in Congress to have the law rewritten to make it easier for them to perpetrate their current frauds. On October 7, 2010, four weeks before the midterm elections and as the story of bank fraud in foreclosures was gaining traction in the media, the White House announced Obama would not sign HR 3808 into law.
197. On October 6, 2010, Immigration and Customs Enforcement (ICE) announced it had deported 392,000 illegal aliens in FY 2010 or the maximum that it could given its budget, per ICE head John Morton. A Pew study released September 1, 2010 estimated, based on Census data, that the population of undocumented in the US had declined from 12 million to 11.1 million between 2007 and 2009. The bad economy and violence along the US-Mexican border have both contributed to declines in the undocumented population, increasing outflows and decreasing inflows. The Obama Administration failed to push immigration legislation in the Congress. The stepped up ICE raids appear to be Obama's real immigration policy. Yet again it is a continuation and expansion of a Bush policy. Politically, it alienates Hispanics, an increasingly important part of the Democratic coalition, and plays to nativists who will never support Obama under any conditions. Policy-wise, it continues to treat the symptom not the cause. If employers were forced to pay all their workers a living wage, much of the benefit of using undocumented workers (to depress wages and keep them low) would disappear.
198. On October 15, 2010, the Social Security Administration announced that for the second straight year (i.e. for 2011) there would be no cost of living increase (COLA) for the 58 million Americans who receive Social Security. The COLA is based on the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). This is calculated by the Bureau of Labor Statistics (BLS). The BLS (question 21) itself admits that the CPI is not set up to measure inflation in subgroups such as seniors. So you might ask why the Social Security Administration uses it. Prices for drugs and food have certainly gone up. Nor is the employment picture one that allows seniors to easily supplement their income to make ends meet. But a freeze in the COLA is a convenient screen to deny spending in areas that our corporate dominated parties do not want to spend because such spending does not benefit them or their contributors. As we know when the banks go to the government for money, vastly larger sums are found and no questions are asked. In the weeks leading up to the 2010 elections, some Democrats suggested a $250 increase for the year, but this would be left to the lame duck session, a session where contrarily Obama's Cat Food Comission (item 136) is likely to propose cuts to Social Security.
199. On October 25, 2010, Obama granted waivers to the 2008 Child Soldier Prevention Act, which came into effect this year, to Chad, Republic of Congo, Sudan, and Yemen so that they could continue receiving US military aid, because, you know, it was the right thing to do, to use children as bargaining chips.
200. In the November 2, 2010 elections, the Democrats lost 60 seats and control of the House. It was the worst loss for a party in 72 years and was only exceeded by the 1938 debacle, when with the country back in depression, Democrats lost 71 seats under FDR. Only Obama is no FDR. Democrats also lost 8 seats in the Senate. They would have lost that too if it had not been for some really nutty Tea Partiers among the GOP candidates. It should be noted that the Democratic losses were completely merited. Obama and the Democrats had a mandate to reject Bush policies and hold members of that Administration accountable for their activities. Obama and the Democrats also had a mandate to create jobs, help homeowners, fix the economy, and investigate Wall Street. They acted against their mandate in each and every instance. They embraced Bush's policies, his wars, and his excesses. They decreed they would not investigate Bush era wrongdoing or criminalize policy differences in the words of Cass Sunstein. They sent trillions to the bankers and left them and their practices in place. They simply refused to make unemployment or the housing crisis a priority. They spent a year on healthcare and produced a bill that did not fix any problems and sold out to insurance, medical, and drug interests. Conservatives hated it and it left progressives feeling betrayed. Their financial reform legislation was largely written for and by bank interests. When the BP oil rig blew out in the Gulf, Obama turned over control to the very fly by night corporation that had created the disaster. While he mouthed occasional criticisms of the company, he directed government agencies to work hand in glove with it and minimize as much as possible the damage caused. Then in the waning days before the election foreclosuregate burst into public awareness. Once again the Obama Administration placed itself on the side of the banks and downplayed the problem.
And throughout all this, defending the status quo rather than delivering the change they had promised, Obama and the Democrats relentlessly attacked every part of the Democratic base on issue after issue: the young, the old, Hispanics, African-Americans, gays, progressives, environmentalists, working and middle class Americans.
They would invoke from time Republican obstructionism, but they never challenged it. They never forced Republicans to engage in a full blown filibuster on anything. They could have changed Senate rules on the filibuster. They could have used the reconciliation process. They could have punished their own recalcitrant members. They could have challenged Republican holds. They could have taken their case to the American people. They never really did any of these things. They never fought. Worse, they never tried.
There was also an inherent contradiction between Democrats using Republican obstructionism as a defense for their failures on the one hand and their emphasis on "bipartisanship." Bipartisanship only works if there is common ground. Obstruction demonstrated there was none. You might have thought that Obama and the Democrats weren't paying attention for this simple, but central, fact to have escaped them. But if you look at their embrace of the Bush agenda and the war on their base, it is clear that they agreed with the Republicans far more than they did with their base, and that most of these invocations were just pap for the rubes, i.e. the rest of us. This was re-inforced in Obama's November 3, 2010 press conference where he repeated again and again the importance of Democrats and Republicans working together, finding common ground, achieving consensus, etc.
In our broken two party political system, we have Republicans acting like Republicans and Democrats acting like Republicans. So for voters to express dissatisfaction with Democratic, that is Republican, policies, their only choice is to elect Republicans. Our elites then take this as evidence they need to move further to the right, a direction that most of them are not at all uncomfortable in going, and in the process the country goes further and further in the wrong direction. This can not and will not end well.
