Sunday, October 4, 2009


Introduction After 8 years of the incompetence, cronyism, and criminality of the Bush Administration, Barack Obama was elected President on the slogan of “Change we can believe in”. But it quickly became apparent that what he meant by this and what the country thought he meant were vastly different concepts. His selections to fill the posts in his Administration were almost entirely Clinton era retreads and Republicans. Liberals and progressives who had actually been right, and reflected where most of the country was at, on issues such as the wars, domestic spying, torture, healthcare, the economy, Israel, and investigation of Bush Administration illegalities were frozen out. Far from believing in change, Obama believed in the traditional Washington Establishment, both Democratic and Republican. This Establishment had largely been pushed aside during the Bush Administration. Those in it did not disagree that much with Bush’s policies, even the failed and extreme ones. They just thought they could have done a better job, even though they and their policies had not been that successful the last time they were in power. Obama’s election announced their triumphant return. His principal economic advisers were two neoliberal Clinton Treasury Secretaries. Obama kept on Bush’s Republican Defense Secretary and his favorite generals. His Chief of Staff, the gatekeeper to the President, was the very unliberal attack dog Rahm Emanuel. He picked a Washington insider, rather than a reformer, to put back together the devastated Justice Department. His choice for Secretary of State fell not on a Clintonista but an actual Clinton.

When Obama spoke of “Yes, we can” that “we” did not include most Americans. But it was still a stirring moment when he said it. Obama does give a good speech. He can often be inspirational. The problem is that his policies don’t fit his rhetoric. He gives an uplifting speech and immediately starts walking back the promises he made in it. He talks of a “new way of doing things”. But this new way consists mostly in reaching out to Republicans, a discredited, deeply unpopular, and increasingly extremist group, who rebuff him, demand concessions that eviscerate bills, and, receiving them, still vote against his legislation. Some say that Obama does this because he hates conflict and does everything he can to avoid it. But he exhibits no such qualms when he deals, or rather refuses to deal with, progressives and the base of his own party. There is a similar notion that Obama doesn’t like to fight for what he wants. This too is untrue. When Obama wants something, like the Paulson bailout for banks, he pushes hard to make it happen. It is only when he doesn’t really care one way or the other that he pulls back. Nor is Obama a reformer as his embrace of the Washington Establishment makes clear. He has by no means adopted all of Bush’s extreme policies, but neither has he rejected all of them, and some he has even expanded. Obama is not Bush, or even Clinton for that matter, but in some strange way his Presidency is shaping up as the third term of both.

1. On July 9, 2008, voting for the bill, Obama reneged on his pledge to oppose and even filibuster the FISA Amendments Act if it contained immunity for telecoms provisions

2. On October 1, 2008, the Senate passed Paulson’s $700 billion TARP bank bailout. Obama was instrumental in lobbying Democratic lawmakers in both Houses to support it.

3. After winning the November Presidential campaign, Obama persuaded fellow Senators not to sanction Independent Joe Lieberman who had actively supported McCain and to allow Lieberman to retain both his seniority and his chairmanship of Homeland Security, where he had spectacularly failed to investigate the Bush Administration’s hopelessly incompetent response to hurricane Katrina.

4. Tom Daschle, the former Senate Majority leader, was Obama’s pick to be Secretary of Health and Human Services and his point man on healthcare reform, although Daschle had been a major lobbyist for healthcare companies and opposed single payer universal healthcare. He eventually withdrew his nomination, not because he was compromised on healthcare issues but because of his failure to pay taxes on some of his lobbying perks. (Tax problems became a something of a theme with Obama’s choices and raised doubts about the quality of his vetting process.)

5. Robert Rubin was Obama’s principal economics adviser during his Presidential run. Rubin who had been Secretary of the Treasury under Bill Clinton was an alumnus of Goldman Sachs. As Treasury Secretary, he pushed for the deregulation which resulted under Bush in the biggest financial disaster since the Great Depression. Upon leaving his position at Treasury, he went to work for the now mortally wounded Citigroup where he used his connections to make millions

6. Larry Summers, another Clinton era Treasury Sec. who actually got enacted much of the deregulation that Rubin had promoted. After Rubin was eclipsed by Citigroup’s problems, Summers became Obama’s chief economic guru. He has continued Paulson’s policy of bailing out zombie banks and propping up with however much money it takes the very system of crony capitalism which precipitated the financial meltdown.

7. Summers would likely have been Obama’s pick for Secretary of Treasury except he had a lousy personality and a history of sexist remarks, which made his confirmation process potentially embarrassing and unsuccessful. As a result, Obama chose a Rubin-Summers protégé Timothy Geithner to head Treasury. Not much was known about Geithner at the time but a lot more should have been. Like many another Obama nominee, it turned out he too had embarrassing tax problems but he was generally given a pass on matters of substance. There was, it turns out, a great deal he could have and should have been questioned about. He was actually praised for being the IMF’s pointman in the 1997 Asian banking crisis. The only problem was that the IMF’s policy to that crisis was disastrously wrong and made it much worse than it needed to be. Geithner was named head of the New York Fed in 2003 and had a ringside seat to both the building and bursting of the housing bubble and the subsequent financial meltdown. Yet despite this privileged vantage point, he never saw any of it coming. He then was instrumental in putting together JPMorgan’s sweetheart deal to take over Bear Stearns, the first of the investment banks to go kerblooey, the AIG deal which protected Goldman Sachs from billions in losses, and the decision at the same time to let Lehman, a Goldman Sachs competitor, go into uncontrolled bankruptcy, precipitating the financial meltdown.

Since his confirmation, Geithner has been a solid defender of the worst aspects of the failed financial system and the major players in it. Even his chief of staff came from Goldman.

8. AIG is a scandal that spans both the Bush and Obama Administrations. It resulted in a government take over on September 16, 2008. Paulson who had been Goldman Sachs’ CEO and chairman of the board before becoming Treasury Secretary chose another Goldman board member Edward Liddy to head AIG and look out for Goldman’s interests there. However, it was under Obama that Liddy directed $13 billion to Goldman and billions more to other banks to pay in full swaps in which the underlying securities had not even gone into default. Then there was Liddy’s decision to pay bonuses at AIG, including those in the same unit AIGFP which had caused the collapse of the company. Although its derivatives book is smaller, AIG continues to have significant exposure, especially to European banks from some $234 billion (p.263) in regulatory relief swaps. There are also questions about its use of offshore entities to re-insure itself internally (i.e. keep smaller reserves than required by law).

On May 23, 2010, the Justice Department announced that it was closing its criminal investigation into AIG and the conduct of its executives which led to the government's $180 billion bailout of the company. This is a thoroughly amazing piece of ineptitude and negligence on the part of Obama's DOJ. Joseph Cassano who ran AIGFP sold CDS like they were cheap chewing gum. He sold them knowing that neither he nor AIG could cover even a small fraction of the action on them. He sold them with AIG's CEO Martin Sullivan's blessing because they knew they were a scam, a way for others to grease their dicey deals, and they assumed, catastrophicly wrong, that they would never have to actually pay anything on any of them. It was one of the most transparently fraudulent schemes going in a financial culture rife with them. And while what Cassano was doing was the largest and most obvious fraud at AIG, the whole company was rotten. A Delaware judge likened it to a criminal organization. Yet despite this, Justice could not make a case against one of the most corrupt and fraudulent players, individually and collectively, in the 2008 meltdown? Ineptitude is the wrong word for this. Collusion would be more accurate.

9. Obama has decided to double down in Afghanistan and escalate the war there. When Obama came into office, the Bush Administration had 3 reviews of Afghanistan policy going on: its own, one by the Joint Chiefs, and a third by the newly installed CENTCOM commander David Petraeus. On January 27, 2009, one week into the Obama Presidency, Defense Secretary Robert Gates testified that troop levels in Afghanistan should be increased from 32,000 to 60,000 as per the request of General McKiernan, the US commander. On February 10, 2009, Obama announced his own interagency review (the 4th). It would be led by Bruce Reidel, a career diplomat and neocon at the Brookings Institute, and co-chaired by Richard Holbrooke, the special envoy for Pakistan and Afghanistan, and Michele Flournoy, undersecretary of defense for policy. Then without waiting for this group’s recommendations, on February 17, 2007, Obama announced a substantial increase in US troops for Afghanistan, as he put it to address the “deteriorating” situation there.

To meet urgent security needs, I approved a request from Secretary Gates to deploy a Marine Expeditionary Brigade later this spring and an Army Stryker Brigade and the enabling forces necessary to support them later this summer. This increase has been requested by General McKiernan and supported by Secretary Gates, the Joint Chiefs and the Commander of Central Command. General McKiernan’s request for these troops is months old

This force was to include 8,000 Marines, 4,000 Army combat soldiers, and 5,000 other support troops. The Obama announcement was odd because, as mentioned above, McKiernan was asking for 30,000 additional troops, not the 17,000 Obama was sending and Obama was backing an increase without having settled on any policy or strategy how to use them as his just announced policy review indicated. On March 27, 2009, based on the interagency review recommendations, Obama announced his new plan for Afghanistan. He declared that Afghanistan and Pakistan were inextricably tied together, that so were al Qaeda and the Taliban, and that the conflict in Afghanistan and Pakistan was likewise a critical part of the global war on terror (although he did not use this term).

As President, my greatest responsibility is to protect the American people. We are not in Afghanistan to control that country or to dictate its future. We are in Afghanistan to confront a common enemy that threatens the United States, our friends and our allies, and the people of Afghanistan and Pakistan who have suffered the most at the hands of violent extremists. So I want the American people to understand that we have a clear and focused goal: to disrupt, dismantle and defeat al Qaeda in Pakistan and Afghanistan, and to prevent their return to either country in the future. That's the goal that must be achieved.

I should point out that Obama’s greatest responsibility is, as his Presidential oath attests, to “preserve, protect and defend the Constitution of the United States.” Protecting the American people is often taken as an excuse by Presidents to abrogate the rights we enjoy under the Constitution. For Pakistan he offered aid (a bribe if you are less charitable) of $1.5 billion a year for 5 years but repeated his intention to continue US strikes within Pakistan:

we will insist that action be taken -- one way or another -- when we have intelligence about high-level terrorist targets.

As for Afghanistan, he proposed increasing the size of its military from its then size of 86,000 to 134,000 by 2011 and apparently keeping the police force at its then level of about 82,000. As was later noted, the budget for Afghanistan’s government is $800 million, but it would take around $4 billion a year to maintain security forces at Obama’s suggested levels, which means we not the Afghanis will be funding their security forces into the foreseeable future. Obama also proposed civilian aid to Afghanistan. While noting problems with corruption (Afghanistan has one of the most corrupt governments on the planet), Obama promised a crack down on corruption --by the very government that permits it. Good luck with that. He also said the US would try to make a distinction between “hardcore” Taliban with whom there could be no compromise on the one hand and “moderates” and warlords on the other with whom he was willing to do a deal. Little thought seems to have been given to how this might be accomplished, how stable or real any such deals might be, or how any of this accorded with the desire to decrease corruption in the Afghan government.

On May 11, 2009, Defense Secretary Gates fired General David McKiernan as US commander in Afghanistan and named special ops General Stanley McChrystal to replace him. Gates ordered McChrystal and his deputy Lieutenant General David Rodriquez to complete a 5th Afghanistan policy review within 60 days of their arrival in theater. This would suggest that Afghanistan remains a mess where we have a commander in search of a strategy and a President in search of a policy.

On September 21, 2009, a copy of McChrystal’s report was leaked to Bob Woodward of the Washington Post which the Post then released online. The report had been completed August 30, 2009 and had been the subject of debate and disagreement in the White House and Congress. Shortly before the leak, military officials had been expressing frustration at the delay in the report’s acceptance. The leak was likely meant to increase such pressure.

The report which stresses understanding Afghanistan in depth was put together over a month by a group of a dozen mostly defense hawks, including several neocons, without any Afghanistan expertise. It stated that the US policy goal was to keep Afghanistan from becoming again “a base for terrorism.” That is an incredibly vague policy and does not take into account how conditions have changed since the initial US invasion. al Qaeda has morphed over the last 8 years into a loosely affiliated terrorist network. Despite our efforts and those of Pakistan, al Qaeda has succeeded in maintaining headquarters for its senior officials across the border in Pakistan. At the same time, it is no longer tied down to any one country and has or can move bases to other countries like Pakistan, Yemen and Somalia. Why we need a large, comprehensive counterinsurgency campaign in Afghanistan, as the report recommends, but not in these other countries goes unaddressed and unexplained.

McChrystal defines his strategy as a two pronged approach, first to protect the civilian population rather than “seizing terrain or destroying insurgent forces” and second to “elevate the importance of governance.” These two ideas while sounding good illustrate the hopelessly contradictory nature of the report. In effect, McChrystal is saying that Afghanistan’s people need to be protected from both the Taliban (the insurgents) and the central government (the crooks and warlords), the same government McChrystal seeks to preserve.

While he says, “Resources will not win this war, but under-resourcing could lose it,” he wants an unspecified increase in the number of US troops and to increase the size of the Afghan army, on an accelerated basis, to 134,000 by October 2010 and to 240,000 thereafter. The police would be increased to 160,000 for a total national security force ultimately of 400,000. As I mentioned above this is vastly in excess of Afghanistan’s own resources to support. The report never really comes to terms with the fact that these forces who are supposed to fight the Taliban (the first part of McChrystal’s plan) are the same ones involved in all the corruption and graft (which McChrystal wishes to fight in the second part). Even less touched on is the ethnic makeup of these forces. Northern forces in the Pushtun south would be seen as hostile, not protective, and vice versa. How such forces could be integrated isn’t discussed at all. Nor is their motivation, their quality, why a few thousand Taliban are such effective fighters and hundreds of thousands of government troops are not.

McChrystal says that a comprehensive counterinsurgency campaign is not primarily military in nature, that we risk “strategic defeat by pursuing tactical wins that cause civilian casualties or unnecessary collateral damage,” but the first phase of his strategy is exactly that. He envisages an upsurge in military activities during the first 12 months of his plan to “reverse insurgent momentum.”

A poorly articulated policy, a strategy incommensurate with it, and a poorly thought through report riven with contradictions, what we have is a war that lost its justification years ago, and politicians and generals still searching for some new reason for it or to win it. One of the most noxious aspects of empire is how persistence in error is transformed into a false contest of wills. The real act of will would be to acknowledge that Afghanistan is not central to our interests and move on.

On October 6, 2009, Obama met with members of Congress to discuss Afghanistan. It had been known for some time that McChrystal had put in a request for up to 40,000 more troops, but the request had not been made public. While Obama had not yet decided about any troop increases, he made it clear that the US presence in Afghanistan would not be reduced. Again rather than a change of direction or a rejection of past policy, Obama appears to be searching for a way to continue the current course, even if that course leads nowhere. This despite the fact that public support for the war was eroding as the following contemporaneous polls showed:

Sept. 15 CNN poll:

A CNN/Opinion Research Corp. survey released Tuesday morning indicates that 39 percent of Americans favor the war in Afghanistan, with 58 percent opposed to the mission.

Sept. 22 Pew poll:

Currently, half of Americans (50%) say military troops should remain in Afghanistan until the situation has stabilized, while 43% favor removing U.S. and NATO troops as soon as possible. In June, 57% favored keeping U.S. and NATO troops in Afghanistan, while 38% favored their removal as soon as possible.

Sept. 23 WSJ poll:

Americans are pessimistic about the prospects of victory in Afghanistan; 59% say they are feeling less confident that the war will come to a successful conclusion. And 51% say they would oppose sending more troops to the conflict.

An October 9, 2009 story in the Christian Science Monitor reports that the high end request for troops by McChrystal was more than 60,000. Given the force that Obama wants to leave in Iraq, this would essentially reverse troop levels between Iraq and Afghanistan and result in only a minor overall reduction in troops levels in the Bush, now Obama’s, two unnecessary wars.

Presidential elections were held on August 20, 2009 in Afghanistan. They returned Hamid Karzai but were marred by widespread fraud which destroyed their legitimacy. On October 19, 2009, UN monitors reviewing election results announced that Karzai had won 48% of the vote necessitating a run-off. On October 18, 2009, Rahm Emanuel, President Obama’s chief of staff, anticipating this development announced that no decision on troop levels would be made until the election situation had been settled. This not only holds Obama’s “policy” hostage to external events but shows how in disarray it remains.

On Veteran’s Day November 11, 2009, Obama met with adviser’s to discuss 4 options which involved escalations of between 10,000 to 40,000 troops. However the current ambassador to Afghanistan and a former military commander there, Karl Eikenberry, sent two cables to the White House arguing against any increase in the face of the inability of the Afghan government to confront massive, systemic corruption. As a result, Obama once again delayed any decision. It remains quite telling that none of the strategies he was presented with included one to withdraw or reduce our presence in Afghanistan.

On December 1, 2009 at West Point and on primetime television, Obama announced his Afghanistan surge. He would send in 30,000 more troops bringing US force size to around 100,000. He promised to begin their withdrawal by July 2011. He stated his policy reason for remaining in Afghanistan as

Our overarching goal remains the same: to disrupt, dismantle, and defeat al Qaeda in Afghanistan and Pakistan, and to prevent its capacity to threaten America and our allies in the future.

This simply repeats the reason we went into Afghanistan in late 2001. That goal was largely met by the spring of 2002. There are almost no al Qaeda currently in Afghanistan and a surge will have no effect on their presence in Pakistan, just as our military presence in Afghanistan has had no effect on that presence anytime in the last 8 years.

So what is the point of having an army in Afghanistan and increasing its size? In part, Obama addressed this by erroneously, or dishonestly, conflating the Taliban with al Qaeda despite the fact that while al Qaeda is about international terrorism the Taliban is one Pushtun faction in an ongoing inter- and intra- ethnic civil war in Afghanistan.

But even with regard to an anti-Taliban war, Obama’s math is all wrong. It will take 6 to 8 months to move the surge troops into Afghanistan. This will leave them 12 months at full strength to accomplish the following:

1. secure large parts of the Afghan population from the Taliban

2. build up, train, and deploy a large Afghan army

3. make the Afghan government both less corrupt and more effective

4. improve the Afghan economy

None of these objectives can be accomplished within this timeframe. Within the context of Afghanistan and its history of ethnic conflicts, each of these is generational in nature. We do not have the resources to undertake them nor any compelling reason to try.

We continue to have an army in Afghanistan and will soon have an even larger army there, but still no coherent policy to explain why it is there. Obama has opted for a strategy that will continue to overstrain our military, our soldiers, their families, and our resources in a war on the other side of the world in a deeply impoverished country of no policy and little strategic value in pursuit of goals that by their nature are impossible to achieve. It is hard to say which is worse that Obama believes this will work or that he is using the current surge as the first part of a screen to keep our troops in Afghanistan for years to come.

Almost immediately the Obama Administration began fudging on the limitations it had placed on its surge. On December 2, 2009, Defense Secretary Robert Gates declared that July 2011 was not a “deadline” but rather an “inflection point, if you will, of transition.” The next day on December 3, 2009, Gates also indicated that he might increase, meaning he would increase, Obama’s 30,000 surge with another 3,000 support troops. If Obama’s conditions are so elastic within the first two days of his announcement, just think how bendable and extendable they will be in 18 months.

On December 6, 2009, Gates continued to gut the initial presentation of the Obama surge saying that only a few troops would be withdrawn after July 2011 and that the US would have a large army in Afghanistan for at least two to four years. This is an example of the Obama “walk back” technique. In this, Obama gives an inspirational speech outlining a “new” strategy on a policy issue. The “new” strategy is, in fact, the old strategy (or even an expansion of it) with a few flourishes. In succeeding days and weeks, Obama then “walks back” the few positive elements his plan contained. Less than a year into his Presidency, this ploy is already getting old and will likely descend into caricature well before Obama’s first term is over.

On June 21, 2010, a Rolling Stone article leaked to the AP reported that McChrystal and his aides made numerous contemptuous remarks about Vice President Biden, Ambassador to Afghanistan Karl Eikenberry, and Special Envoy Richard Holbrooke. McChrystal was summoned to Washington to explain himself. Article 88 of the UCMJ makes such comments to reporters a court martial offense. This is an added complication to McChrystal's Afghan strategy which has been going off the rails. The first operation to show the efficacy of the surge and McChrystal's new strategy was against a small regional center Marjah. It was weeks behind schedule and its aftermath turning over authority to the Karzai government was a failure. The central government simply wasn't up to the task. The centerpiece of the surge was supposed to be the retaking and holding of the much larger city Kandahar. This operation is months behind schedule and as of this writing had not even begun. These delays and setbacks are significant because the surge timeline for showing progress is short, and so far there hasn't been any.

On June 23, 2010, Obama relieved McChrystal of his command and handed it over to McChrystal's boss, CENTCOM commander David Petraeus. While Obama said the man was gone but the policy would go on, this misstates the case. It will be a significant disruption because the surge is on a tight timeline and already months behind schedule. It is difficult to see how you can have a McChrystal strategy without McChrystal. McChrystal was an ops guy. Petraeus is much more a political general. McChrystal had a team which reflected his thinking and shared in his failures. It is unclear if it will survive its leader or if it can work effectively with Petraeus and his team. This is all on top of the chronically and historically abysmal state of affairs in Afghanistan and our failure to have any coherent, substantive policy with regard to it.

On August 3, 2010, in retaliation for his reporting, the Pentagon denied Michael Hasting, who wrote the Rolling Stone article on McChrystal, his request for an embed with US forces in Afghanistan. It is extremely rare, by the military's own admission, for such requests to be turned down. What this really says is that the Pentagon has no use for reporters who do real reporting.

On November 9, 2010, McClatchy reported that the Obama Administration had decided to move publicly away from its commitment of a withdrawal beginning July 2011 for a more nebulous date in 2014 when Hamid Karzai, no doubt high on some of his brother's, the drug dealer's, opium announced that his forces would be ready to provide security for the country. It was known from the beginning, literally one day after its announcement on December 1, 2009, that the July 2011 deadline was bogus and that Obama and the Pentagon were lying about it. While this confirmation is unsurprising, it goes to the fundamental issue of credibility. It says a lot about the sad state of our political life, that, on any matter, you are far more likely to be proven right if you assume that Obama and our political and governmental leaders in general are lying than not. And by this I do not mean finessing or spinning around the edges but outright, bald-faced lies.

On December 16, 2010, the government released its long awaited Afghanistan review. Before getting to it, let us conduct one of our own. We have been in Afghanistan more than 9 years. Casualties are up: 155 US dead in 2008; 317 in 2009; 489 with 2 weeks left to 2010. The war is costing a $120 billion a year (far more than Afghanistan's GDP of $27 billion). The two main revenue sources in the country are the US occupation followed by opium. Petraeus, as he did in Iraq, is relying heavily on airstrikes, more than twice the rate in the last 3 months as a the same period a year ago: 2,550 vs. 1,188. which are killing and maiming more civilians. The Taliban has extended its operations to 80% of the country, training Afghan security forces is going nowhere, the Afghan government presided over by Hamid Karzai remains hopelessly corrupt, Afghans are tired of war and 80% of them want a negotiated peace with the Taliban. 55% want us to leave. al Qaeda remains in Pakistan, not Afghanistan. Two National Intelligence Estimates (NIEs) state that progress in Afghanistan can't be made until safehavens in Pakistan are eliminated, which is unlikely because Pakistan is, as ever, an unreliable and duplicitous "ally". There is also the deep unpopularity of the war in this country. Two polls, Quinnipiac and the Washington Post, released to coincide with the Afghanistan review showed 54% and 60% of Americans, respectively, thought the Afghanistan war was not worth fighting.

So in the face of all this, what does the Obama Administration conclude? "Specific components of our strategy for Afghanistan and Pakistan are working well and there are notable operational gains." Much the same was said about the Vietnam war. In that one too, we made operational gains (won the battles) but lost the war. The supposed July 2011 withdrawal is mentioned but then so is the decision to remain in Afghanistan until 2014, and beyond. A better assessment was perhaps given by Richard Holbrooke, the special envoy to the region who died on December 13, 2010 from a torn aorta. His last words were "You've got to stop this war in Afghanistan." The Administration has sought to spin these words as banter, but they remain far more accurate and honest than a manufactured review filled with pre-ordained conclusions to justify a war not worth fighting.

10. Obama promised to withdraw from Iraq on a 16 month (one combat brigade a month) basis. This timeframe was drawn out as much as it was to counter Republican criticisms that any withdrawal was by definition “precipitate”. Nevertheless, Obama has reneged on even this. Only about 2 combat brigades will be withdrawn in 2009. Most of the withdrawal, if it occurs, will have to be done in 2010 at an accelerated, hence precipitate, rate. And even then it will not be a real withdrawal. Obama intends to leave a “residual” force of 50,000 troops in Iraq. These will not be called combat troops even though they will have combat roles.

On August 19, 2010, the last "combat" troops left Iraq. As mentioned above, 56,000 troops will remain in the country as trainers, i.e. combat forces by another name. Per the Status of Forces Agreement (SOFA) with Iraq, these are supposed to be gone by the end of 2011. Meanwhile 5 months after national elections, Iraqi politicians still have not formed a new government.

Iraq did form a new government on November 11, 2010 that looked a lot like its old government. Meanwhile on November 9, 2010, Defense Secretary Robert Gates announced that the Obama Administration was "open" to keeping US forces in Iraq beyond the agreed 2011 cutoff date.

11. During his campaign, Obama promised to close Guantanamo. As President, he almost immediately backtracked and said he would close Guantanamo within a year. Abuse of detainees at the camp continues. One of the chief criticisms of Guantanamo was that the Bush Administration had used it as a “legal blackhole” controlled by the US but outside its courts. Even the hyper conservative Supreme Court balked at this assertion, although mostly on the grounds of turf, i.e. Marbury. Yet rather than according detainees either Geneva or due process and habeas rights, Obama is simply creating another legal blackhole further afield (see item 77) at Bagram in Afghanistan where prisoners will, as they were under Bush, be denied any legal rights.

On July 7, 2009, in Senate testimony, Pentagon general counsel Jeh Johnson suggested that Obama might not close Guantanamo within one year after all. On July 20, 2009, the President’s Detention Policy Task Force announced that it would miss its July 21, 2009 deadline for issuing a report. It asked for and received a 6 month extension making it essentially certain that Obama would not keep his pledge to close Guantanamo in 1 year.

On September 23, 2009, the Justice Department announced that approximately 50 prisoners at Guantanamo would continue to be indefinitely detained without charges. The DOJ said it would do so pursuant to the Authorization for the Use of Military Force (AUMF) passed after 9/11, essentially reiterating its position laid out in a March 13, 2008 memo filed in federal district court in DC. The Obama Administration would not seek new legislation to this end, perhaps anticipating difficulties in passing it. This leaves the Administration continuing the unConstitutional policy of its predecessor but using the same justification for it.

In a November 18, 2009 interview in Beijing with Major Garrett of Fox News, Obama announced that his Administration would fail to meet its self-imposed deadline. Obama said, “We are on a path and a process where I would anticipate that Guantánamo will be closed next year . . . I’m not going to set an exact date because a lot of this is also going to depend on cooperation from Congress.” In a later interview with NBC News, Obama dismissed this failure: “Guantánamo, we had a specific deadline that was missed.”

A December 23, 2009 New York Times story by Charlie Savage reported that it could be sometime in 2011 before the Guantanamo prison was closed. It was Obama’s intention to buy an unused state prison in Illinois to house prisoners facing indefinite detention or for military commissions. This was resisted by the Congress and money for such a purchase was left out of the 2010 defense appropriations bill. At the same time, it would take 8 to 10 months for the prison to be made ready even after the federal government bought it. Obama’s justifications for indefinite detention and military commissions remain lame. Even lamer is the idea put forward by Republicans and some Democrats that holding detainees in a prison in the US would somehow be more dangerous than Guantanamo. Guantanamo and the mistreatment of detainees are reasons often cited by jihadis to justify their activities.

12. Obama has also pulled back from doing away with Bush military commissions to try detainees. These commissions were essentially kangaroo courts. Yet tellingly even under Bush they proved completely unworkable because even the most gung-ho military prosecutors found it professionally and ethically impossible to participate in them. Yet Obama wants to use them anyway. Certainly torture taints many of these cases, but there were also stories that the military was extremely sloppy in how it controlled both its cases and its evidence. The situation must be really bad or Obama really distrusts the US justice system because the bar for evidence in terrorism cases in the federal judiciary is extraordinarily low and even in seriously botched prosecutions, like those of Moussaoui and Padilla, convictions were still obtained.

On the evening of April 27, 2010, Defense Secretary Gates signed off on the new manual for military commissions. The next day April 28, 2010 at 8 AM, a pre-trial hearing at Guantanamo took place for Omar Khadr. What this meant was that no one there had any real idea about the appropriate procedures were since no one had been given sufficient time to study the manual. This half-baked approach to judicial procedure is strongly reminiscent of the hopelessly bungled Bush-era military commissions. Khadr, a Canadian citizen whose family moved to Afghanistan in 1996, was captured by American forces after a firefight in 2002. He was charged with throwing a grenade which killed an American. At the time of capture, Khadr was 15 years old. Although suffering from multiple wounds, he underwent repeated, harsh interrogations, the product of which were various coerced confessions. The prosecution of Khadr is problematic for any number of reasons. First, he was a juvenile at the time of his capture. Second, his case is strikingly similar to that of Mohammed Jawad (see item 70) whose habeas petition succeeded in federal district court and who was ordered released and was returned to Afghanistan. Third, it took the government until November 8, 2007 to inform Khadr's defense that it had an exculpatory witness that it had known about for years. Fourth, elements of Khadr's various coerced confession have already been shown to be false. Fifth, it was reported on June 8, 2008, Khadr's then military counsel Lt. Commander Bill Kuebler had discovered a military directive ordering interrogators to destroy their their blow by blow notes of interrogations. This is tantamount to destruction of evidence and obstruction of justice. It was an attempt by the government to hide the coercion, including the threat of rape, which the government had used in its interrogations of Khadr. Yet this is the case and how the Obama Administration wishes to restart the already thoroughly discredited military commissions process. That is why the government is seeking to plead out cases like this where there is no real case but a long history of government bungling and misconduct. The government offered Khadr a further 5 years. He refused. Failing that, the fallback is to go to the military commissions route because in most federal courts the government would lose at the habeas stage (and its prosecutors excoriated in the process) and a case like this would never make it to trial.

On October 25, 2010, as part of a plea deal, Khadr pled guilty on all 5 counts with which he was charged. This isn't justice. It's just wearing down a defendant until the government and the Obama Administration can claim a victory, no matter how tainted. On October 31, 2010, Khadr was sentenced to 40 years. This was a political verdict to show how tough the US and the Obama Administration are on terror. Per his plea deal, he will serve no more than 8 more years. This process was a disgrace with about as much validity as the Spanish Inquisition. First, they establish your guilt, then they decide on the charges. Shameful.

13. Going further, on May 21, 2009, Obama embraced Bush’s idea of indefinite detention even of those who have been processed by the courts:

“Now, let me begin by disposing of one argument as plainly as I can: We are not going to release anyone if it would endanger our national security”

In a June 26, 2009 story, Dafna Linzer and Peter Finn reported that the Obama White House was drafting an Executive Order which would allow for indefinite detention of up to 90 prisoners at Guantanamo. One of those mentioned in this regard is Walid bin Attash who is accused of involvment in the bombing of the USS Cole. Of the 3 witnesses against bin Attash, one escaped jail in Yemen, another the Yemenis won’t let testify, and the 3rd is Abd al-Rahim al-Nashiri who was tortured by the US. As Marcy Wheeler has pointed out, there was certainly other untainted evidence developed in the Cole investigation, and, as I have noted, terror convictions in US federal courts are fairly easy to obtain.

On July 7, 2009, the Pentagon’s general counsel Jeh Johnson in Senate testimony reiterated this view:

“If you have authority under the law of war to detain someone” under the Supreme Court’s Hamdi ruling, “that is true irrespective of what happens on the prosecution side.”

14. Pursuant to action under FOIA by the ACLU, the Pentagon agreed on April 24, 2009 to release photos by May 28, 2009 of detainee mistreatment at Abu Ghraib and other prisons in Iraq. Some of the photos were said to document cases of rape. On May 13, 2009, Obama decided to fight release of the photos because they were too inflammatory. Joe Lieberman and Lindsey Graham attached an amendment, initially supported by the White House but later stripped out, from the war supplemental to give Obama the power to keep the photos secret, despite FOIA. Obama has indicated that if he loses in court, he may revisit the legislative route to block publication or simply classify them.

On October 7, 2009, it was reported that the conference committee on the appropriations bill for Department of Homeland Security approved the amendment by Senator Joseph Lieberman (I-CT) that would give the Pentagon the power to keep secret photos showing detainee abuse. Since the conference report will certainly pass, so will the Lieberman amendment. This is about the government’s ability to cover up evidence of its own misdeeds and crimes, a power which Obama endorses.

15. The refusal to release the Abu Ghraib torture photos the ACLU had sought in its FOIA request was necessitated by Obama’s decision not to investigate and pursue torture under the Bush Presidency. Release of the photos in the context of investigations and prosecutions would be part of our coming clean on torture. Release of the photos in the absence of these would inflame because they would underline the impunity with which torturers acted, an impunity endorsed by Obama. Obama made this clear even before his Inauguration in a January 11, 2009 interview with George Stephanopoulos:

“We're still evaluating how we're going to approach the whole issue of interrogations, detentions, and so forth. And obviously we're going to be looking at past practices and I don't believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering”

On November 13, 2009, a court filing indicated that Secretary of Defense Robert Gates had used the power enacted under the Lieberman amendment to block the release of the torture photos.

16. Geithner’s original proposal on February 10, 2009 was amazing in that it was two pages long, one page shorter even than Paulson’s initial 3 page blackmail bailout plan. It proposed a trillion each for two programs. The first was the PPIP (Public private investment program). The second was an extension of the TALF (Term Asset-Backed Securities Loan Facility) called the Consumer and Business Lending Initiative (CBLI) to securities written on new credit and loans. The PPIP was supposed to take crap assets off bank books. The TALF extension was supposed to free up credit. Neither went anywhere.

The PPIP was an incredibly generous scam in which the government would underwrite nearly the entire cost of the purchase of a crap asset by an entity such as a hedge fund. If the asset increased in value, the hedge fund got essentially all of that increase. If the asset decreased in value, the hedge fund lost only its small initial investment. So why didn’t it work? The ostensible reason that hedge funds gave was that the government might use their participation to limit their executive compensation in the future. The real reason was more basic. Banks and hedge funds could not agree on price. The banks wanted near the face value of their crap assets. If they sold them at what buyers, even those heavily subsidized by the government, were willing to pay for them. They would have to revalue similar holdings they were carrying on their balance sheets. Such a re-evaluation would have exposed a truth that the banks have been desperately hiding and denying since the housing bubble burst on August 9, 2007: they are bankrupt. As for the hedge funds, to pay for the crap assets at the prices the banks wanted even with the government subsidies was a losing proposition for them. True the government would eat most of the losses but there was virtually no way they were going to make a profit on any of this. And, of course, they were concerned that the government would use this as a hook to look at them more closely. Limits on compensation was an issue but the hedge funds did not want real accounting done of their battered books any more than the banks, and for the same reason.

As for the TALF extension, it was a government financed investment program to be run by investment houses like Goldman Sachs. The money, however, did not go directly to lending but rather to securities written on loans after they had been made. There was one small problem with this. Banks weren’t making the kinds of consumer and student loans the TALF extension was supposed to cover.

I am not sure which is worse that Geithner’s came up with two trillion dollar programs without the money to pay for them or that they were so poorly designed that they failed before they began.

17. A week later on February 18, 2009, Geithner announced the poor step-sister to his two trillion dollar programs. This was a $75 billion plan to help distressed homeowners. The collapse of the housing market is at the heart of the current economic mess. We are not going to get out of our economic crisis until this problem is solved. Yet it says so much that the Obama Administration left it last and gave it by far the smallest amount of aid. And even that came with conditions, such as no cramdowns and mortgagees only mildly upside down on their loans, that were meant more to prop up the balancesheets of banks than to help homeowners. Congress got in the act and kicked around cramdowns before kicking them to the curb, and on May 20, 2009, Obama signed the dishonestly named “The Helping Families Save Their Homes Act .”

On July 1, 2009, Geithner announced an expansion of this program. He said that Fannie and Freddie would refinance mortgages up to 25% upside down from the original 5%. This means that those holding mortgages 25% more than their homes are currently worth could refinance. In more technical terms, it means that the Loan-to-Value ration (LTV) has been increased to 125%. Like Geithner’s previous scheme, this is not about helping homeowners. Indeed homeowners who owe more than their house is worth could better be called “renters” since they have negative equity. This program is really another attempt to reflate the housing market and shore up home prices so that bank balance sheets look better and less insolvent. It would also be a way to tie mortgagees into bad deals. As Yves Smith at Naked Capitalism notes, in most states refinancing loans are not non-recourse, i.e. mortgagees can’t walk away from them as they could with the original mortgages. In other words, those signing up for this program would have to be both crazy and desperate. As for Geithner, it shows how wrongheaded and deep in denial he remains in believing that bubble prices reflect the true value of homes and that the current collapse in prices is a reversible panicked reaction.

18. When Obama wants to act, he does. He has thrown two of America’s Big Three automakers Chrysler and GM into bankruptcy. Management is removed, investors are wiped out, unions and even bondholders take haircuts. Yet when it comes to banks this doesn’t happen. There they are allowed to overvalue their assets and writedown their debt. They are put through fake stress tests that they can’t fail based on realistic economic scenarios and information and models they supply themselves. They then get to negotiate their scores with the government. Finally, they are told to go out and raise private money to make up any shortfalls, and if they can’t the government will give it to them. Ouch!

19. In June 2009, ten big banks were allowed to repay $68 billion in TARP funds. They did so to escape tighter regulation by the government, which actually isn’t all that tight. The fate of the stock warrants which were supposed to help the government make a profit on its loans is in doubt. The repayment of the loans reduces their reserves which remain dubious. And, of course, this is mostly sleight-of-hand since they retain other credit lines through the FDIC and the Fed. Still this kabuki is supposed to make us feel like things are turning around.

20. As of June 2009, the Bush and Obama Administrations have made pledges almost wholly to the financial sector of $13.903 trillion of which they have already made available $6.788 trillion. Almost half of this amount $3.2 trillion has been extended by the Treasury as guarantees to Money Market funds. This is an enormous program which has gone virtually unreported. Meanwhile the Fed has pledged more (about half of the total) but as so far extended about $1.8 trillion in credit. The Obama Administration has talked about transparency but most of these programs remain opaque. How are the Money Market guarantees being administered, who’s getting them, who’s running the program? The Fed’s role is even more problematic. It has been used by both the Bush and Obama Administration as an extra-Constitutional tool of fiscal, not monetary, policy. It is the Congress that is supposed to have the power of the purse but through the Fed the Executive has acquired a purse of its own.

Libertarian Representative Ron Paul (R-TX) had for some time pushed to have the Fed audited to shine a light on its murky pro-bank dealings. Alan Grayson (D-FL) added his support to Paul's efforts. The result was on November 19, 2009 an amendment to this effect was added to the House Financial Services Committee weak reform bill by a vote of 43-26 and in the face of opposition from the committee chairman Barney Frank (D-MA), Fed chair Ben Bernanke, and Treasury Secretary Geithner. In April 2010, the Senate took up financial reform in the form of the even weaker Dodd bill. Bernie Sanders (I-VT) moved to put forward a similar audit the Fed amendment. An April 30, 2010 story indicates that the Administration's opposition to a Fed audit continues. This is another issue where Obama has done a 180, running on transparency and now in office championing secrecy. Sanders has the reputation of one who talks progressive but always folds in the crunch.

On May 6, 2010, he did so again on his "Audit the Fed" amendment. He made it a one time only effort, restricted what could be audited, the timeframe involved (December 1, 2007 to date of enactment; so beginning after the housing bubble burst on August 9, 2007), and the amount and type of information likely to be released. It was easy to tell the fix was in when Chris Dodd (D-CT), chairman of the Financial Services Committee and a major defender of the financial industry signed on as a cosponsor. On May 11, 2010, Sanders' amendment passed 96-0, another indication of its weakness. On May 19, 2010, there was a mini revolt among Democrats when Harry Reid cut off their amendments and proceeded to a cloture vote. Cantwell (D-WA) and Feingold (D-WI) voted against and the motion failed. The next day on May 20, 2010, Reid got the newly minted Republican Senator from Massachusetts Scott Brown to vote for cloture. This gave him the 60 votes he needed. The bill passed the same day 59-39. Its elements were played up, but, as for real reform, the bill contained almost none. This is unsurprising given the corporate domination of the two parties. The bill will be further sliced and diced in conference.

After being further sliced and diced in conference, the House passed the bill 237-192 on June 30, 2010. It passed the Senate 60-39 on July 15, 2010 and was signed into law on July 21, 2010. (see also item 39)

21. On May 22, 2009, Obama signed the Credit Card Accountability, Responsibility and Disclosure Act. This bill prohibits some of the more egregious tactics credit card companies have been using to gouge clients but allows them 9 months to continue them. It also very pointedly does not contain any reduction in the usurious rates they can charge.

22. Obama appointed business friendly Mary Schapiro to head the Securities and Exchange Commission. The SEC turned a blind eye to and even facilitated Wall Street’s excesses during the Bush years. It needs to be a strong regulator but remains captured by the financial industry. Schapiro joined the NASD (National Association of Securities Dealers) in 1996. This was a private self-regulator for brokers, traders, and exchanges. Bernie Madoff was a vice chairman of NASD. Schapiro became chairman and CEO of NASD in 2006 and then its successor organization FINRA (Financial Industry Regulatory Authority) in 2007 and remained there until accepting the SEC post under Obama in 2009. That Schapiro bought into the myth of "self-regulation", that she never saw the meltdown coming which her brand of self-regulation did so much to foster, and that Bernie Madoff ran his Ponzi scheme right under her nose for years should disqualify from any regulatory position anywhere.

23. Obama picked Gary Gensler to head the Commodity Futures Trading Commission (CFTC). Gensler favored deregulation of derivatives during the Clinton Administration. Now he says he is for regulation but it mostly looks like his idea of regulation is to increase reporting requirements.

24. In the face of the economy falling into depression and with singular lack of leadership, Obama set the general outlines for a fiscal stimulus but then left it to Congress to work out the specifics. The result was a $787 billion stimulus over 2 years to create or save 3 million jobs. It was about 60% spending to 40% tax cuts. The stimulus fell far short. 12-13 million jobs will be needed by the start of 2011 to make up for jobs lost and to cover population growth. To be effective, the stimulus needed to be on the order of $1 trillion/year. It needed to be geared more toward spending (and job creation) then tax cuts (which leads to saving and not jobs). And it needed to continue as long as needed and should have been used to begin the US on a path of sustainable re-industrialization.

25. Obama also used the current economic crisis to attack Social Security and Medicare. In February 2009, he sponsored a fiscal responsibility conference. Pete Peterson a billionaire and well known critic of Social Security was to be the keynot speaker but his invitation was pulled because of the bad press. A plan by Peter Orzag, Obama’s Director of OMB, was instead highlighted. This called for a gradual reduction in benefits. Apparently Obama’s definition of fiscal responsibility does not extend to funding wars of choice or bloated defense spending. Social Security does need adjustments somewhere in the vicinity of 2040. The real problem is that the government wants to welch on repaying the Social Security surpluses which it has spent and which lower and middle income Americans have been paying for since Alan Greenspan’s 1982 Social Security reform during the Reagan Administration. These surpluses were supposed to guarantee that the government would cover shortfalls in the program between 2017 and 2040 (originally 2042). These surpluses were always both a scam and a backdoor tax on the lower and middle classes because even if the government honored its commitment it would be taxpayers who paid back the surpluses (which the government had spent) to themselves. In other words, the taxpayer would pay twice, once to cover the actual 2017-2040 commitment and once to give the same amount to the federal government to spend. The discretionary side of the federal budget minus defense spending is relatively speaking small. This spending would have to be greatly reduced, taxes raised, or benefits cut. Although it was a very strange time to be discussing taking a whack out of Social Security at a time of great stress to seniors and all Americans for something that would not happen until Obama was out of office (assuming he gets a second term), this is precisely what happened. Medicare on the other hand does have real financial problems most of which could be resolved through meaningful healthcare reform.

26. The great American healthcare debate began on March 5, 2009 with a one day White House forum. In his opening remarks, Obama laid out three goals:

to determine how we lower costs for everyone, improve quality for everyone, and expand coverage to all Americans

He also stated that

we need a process that is as transparent and inclusive as possible

It is a maxim of the Obama style that he gives a good speech but that what he says is wildly at variance from what he, in fact, does. So it was with this second statement and how it impacted the possibility of delivering on the first. From the start, Obama was not transparent. There was one group that was not invited to the White House forum and would be frozen out of all future discussions. These were single payer advocates. It was a significant, and telling, omission. The US is alone among industrial countries in not having comprehensive healthcare for all its citizens. Some like Canada and the UK accomplish this with a socialized system. Others like the Netherlands and Switzerland use private insurers but regulate them so heavily that function essentially as agents of the government. The highest rated system is the French, as well as the highly rated Australian plan, which use single payer. In rough terms, single payer works like Medicare. The government is the payer but the care is private. By keeping its system of private insurers with little government oversight, the US has managed to create a system which costs twice as much as these other types, leaves 45-50 million without any coverage, denies tens of millions who are covered the treatments they need, and overall delivers worse health outcomes as measured by infant mortality rates and longevity.

Or as Obama said it at a March 26, 2009 townhall,

And so I don't think the best way to fix our health care system is to suddenly completely scrap what everybody is accustomed to and the vast majority of people already have. Rather, what I think we should do is to build on the system that we have and fill some of these gaps.

The problem is, is that we have a employer-based system that has grown up over decades. For us to completely change our system, root and branch, would be hugely disruptive and I think would end up resulting in people having to completely change their doctors, their health care providers, in a way that I'm not prepared to go.

This by the way is completely untrue since the only thing that would change would be the payer, not the providers. And again on August 14, 2009 at a townhall in Belgrade, Montana, Max Baucus’ home state:

Every one of us, what we've said is, let's find a uniquely American solution because historically here in the United States the majority of people get their health insurance on the job. So let's build on that system that already exists -- because for us to completely change that, it would be too disruptive.

In keeping with Obama’s approach to everything, rather than going with a different, but tried, tested, lower cost, and more successful healthcare system, of which he had at least 3 main types to choose from, he went instead with a continuation of the present system and entrusted the legislative process to write up his “reform” to the most status quo members of Congress. In practice this meant in the House the conservative Blue Dogs and the House leadership. In the Senate, it focused on the Senate Finance Committee (with no expertise in healthcare) chaired by Max Baucus (D-MT) and whose ranking minority member was Chuck Grassley (R-IA) and of course the bipartisan group of Senators from small unrepresentative states known as the Gang of Six. It also meant giving over the process to corporate lobbyists spending millions of dollars a day to make sure no serious reform occurred.

The essential of Obamacare was to keep Americans with private employer based insurance in those plans. For small employers and for the uninsured, insurance exchanges would be set up at the state level offering a selection of plans. There was an individual mandate (which candidate opposed). Anyone not buying insurance would be penalized. There was also to be a public option which was to compete with private plans, “keep them honest”, and control costs. As even this brief synopsis shows, the great healthcare debate was never about healthcare. It was about insurance and how to make a sizable percentage of the US population a captive market for insurers.

In the selling of this plan, the public option was meant as a sop to liberals in lieu of the single payer option. It was successful in leveraging liberal organizations like HCAN and Moveon into support for Obamacare. In theory, at least, it was an important part of the reform debate, but it also became a metaphor for the interests of ordinary Americans which were ignored elsewhere in the process. At the same March 5, 2009 healthcare forum, the shape of the debate with regard to the public option was already clear. Senator Chuck Grassley (R-IA) said,

there's a lot of us that feel that the public option that the government is an unfair competitor

To which, Obama gave a lukewarm passive voice response, citing competition, but then went on to say somewhat incoherently,

I recognize, though, the fear that if a public option is run through Washington, and there are incentives to try to tamp down costs and -- or at least what shows up on the books, and you've got the ability in Washington, apparently, to print money -- that private insurance plans might end up feeling overwhelmed.

In succeeding months, Obama would repeat these contradictory messages, that the public option would provide competition although not, apparently, serious competition. Even for Obama, it was not the poor service and sky-rocketing costs of the private insurers, but only the government “printing money” that made the public option a threat to the private companies. The public option was a concept of Jacob Hacker, a political scientist. He envisioned it as covering 129 million Americans or half of the non-Medicare population. It was to be available on Day One to all and use Medicare rates. His version of the public option did not come close to making it into any of the bills in the House or Senate. Indeed the public option throughout the debate remained nebulous. It became a kind of Rohrschach test reflecting the hopes and fears of supporters and detractors. In keeping with the debate’s focus on money, the content of the public option was left deliberately undefined.
Who could sign up for the public option was unclear for much of the summer as well. At a July 28, 2009, AARP tele-townhall, Obama seemed to imply that registration in the public option would be open:

So you could still choose a private insurer, but we'd also have a public plan that you could choose from

and on August 20, 2009 in remarks before the Organizing for America national health care forum:

Now, one of the options will be a public option because we think that potentially could be a better deal for consumers. But nobody is going to force you into that option. It will, however, help keep the private insurers honest because if they're charging a lot more -- higher profits, higher overhead, worst deal in terms of insurance -- then a lot of people will say, well, I might as well take advantage of the public option. But it will be the choice of the individual.

This changed rather radically in Obama’s September 9, 2009 speech to a joint session of Congress:

But an additional step we can take to keep insurance companies honest is by making a not-for-profit public option available in the insurance exchange. (Applause.) Now, let me be clear. Let me be clear. It would only be an option for those who don't have insurance.

And as Obama continued, it would cover only about a tenth of those in the original Hacker public plan:

In fact, based on Congressional Budget Office estimates, we believe that less than 5 percent of Americans would sign up.

This raised questions not only about how such a small plan split among 50 state exchanges could keep the larger privates honest but also about whether it would have sufficient market share to negotiate lower prices with health providers. In a word, would such a public option even be viable? These concerns were heightened by moves in both the Congress and the White House. The public option was divorced from the Medicare rating structure meaning that it became even less competitive. It would have to pay more for services and therefore charge higher premiums to its customers. Its startup costs would have to be paid back, again resulting in higher premiums. On top of this, its rollout would be delayed until 2013, ostensibly to make the 10 year cost projections for the overall healthcare plan come in on budget. Any possible expansion of its availability would not come before 2015. It was all a recipe for failure, but that was rather the point. As I said, even at the beginning of the debate Obama’s support of the public plan was less than wholehearted. At a June 23, 2009 press conference, when asked if the public option was non-negotiable, Obama replied,

we are still early in this process, so we have not drawn lines in the sand

He again downplayed it on August 15, 2009 at a townhall in Grand Junction, Colorado,

All I'm saying is, though, that the public option, whether we have it or we don't have it, is not the entirety of health care reform. This is just one sliver of it, one aspect of it.

This remark created quite a storm and Obama backed off of it. On August 20, 2009, he was more positive:

I continue to support a public option, I think it is important… The only thing that we have said -- and this continues to be the truth -- and I mean, sometimes you can fault me maybe for being honest to a fault -- is that the public option is just one component of a broader plan.

However this did not prevent the White House from supporting various efforts, such as co-ops triggers, and opt-outs to kill the public option entirely. The object here was to do it without the Administration taking the blame for it. The whole debate within a debate on the public option was a distraction, much like death panels and teabaggers, but one which both conservatives and the Obama Administration used to paint a completely misleading portrait of how healthcare was paid for in the US. Their thesis was that we had a largely private system, the character of which would be threatened and “disrupted” by government intrusion. Here again we see the confusion, likely deliberate, between the healthcare providers who are mostly private and healthcare payers where the government already plays a leading role. As this Kaiser study found:

Public health expenditures made up about 46% of the health care dollar in 2007, with the remainder split between private and out-of-pocket spending (42% and 12%, respectively).

Nor is it clear that the currently uninsured would benefit from acquiring insurance, except in catastrophic instances. High premiums, deductibles, and copays could leave them with “junk” insurance that they could not use or with higher expenses, for less than catastrophic occurrences, than if they had had no insurance at all. This raises the question of cui bono? to whom the good? The repeal of Glass-Steagall in 2000 allowed insurance companies to gamble with their reserves with the same lack of fiduciary responsibility as their banking cousins, and probably with the same disastrous results. The current debate may be simply a way for insurance companies to repair gutted balance sheets.

Of course, the insurance companies are not the only ones who were concerned about the money more than actual delivery of healthcare. So was the Obama Administration. As he said in his September 9, 2009 speech to Congress,

First, I will not sign a plan that adds one dime to our deficits -- either now or in the future. (Applause.) I will not sign it if it adds one dime to the deficit, now or in the future, period. And to prove that I'm serious, there will be a provision in this plan that requires us to come forward with more spending cuts if the savings we promised don't materialize.

Because the CBO projects such deficits, this guarantees cuts in subsidies and higher costs to those who can least afford it. The Obama approach to cost containment was to strike a series of “deals” with the triad of insurance, drug, and medical companies rather than letting entities like Medicare with its large market share and knowledge of the market negotiate lower prices. Obama announced the first of these deals on May 11, 2009 after meeting with healthcare stakeholders:

And that's why these groups are voluntarily coming together to make an unprecedented commitment. Over the next 10 years -- from 2010 to 2019 -- they are pledging to cut the rate of growth of national health care spending by 1.5 percentage points each year -- an amount that's equal to over $2 trillion. Two trillion dollars.
The second was with Big Pharma. As Obama said on June 22, 2009 talking about reducing but not eliminating the infamous doughnut hole in Medicare’s prescription program:

Medicare beneficiaries whose spending falls within this gap will now receive a discount on prescription drugs of at least 50 percent from the negotiated price their plan pays.

To that end, the pharmaceutical industry has committed to reduce its draw on the health care system by $80 billion over the next 10 years as part of overall health care reform.

The third with hospitals was announced by Joe Biden on July 8, 2009:

As part of this agreement, hospitals are committing to contributing $155 billion -- $155 billion -- in Medicare and Medicaid savings over the 10 years to cover health care cost reform -- over the next 10 years.
On the government side, Obama fixed his sights on Medicare and Medicaid. As he said on June 24, 2009,

Medicare and Medicaid are the single biggest drivers of the federal deficit and the federal debt -- by a huge margin.

The first of these assertions is disputable. Tax cuts for the wealthy, unnecessary wars, an oversized military, and bailouts for bankers certainly have all made major contributions to budget deficits. With regard to the national debt, Obama is simply wrong. The government owes a lot of money to Social Security for the surpluses which it borrowed and spent. And in his September 9, 2009 speech to Congress,

Reducing the waste and inefficiency in Medicare and Medicaid will pay for most of this plan.

This too is not quite accurate. Obama projects savings of $948 billion over 10 years. $309 billion would come directly from Medicare and Medicaid. $326 billion comes from raising taxes, principally on those making more than $250,000 a year. The remaining $313 billion comes from cuts in Medicare payments, expected savings to hospitals from “covering” the uninsured, and the Big Pharma giveback mentioned above.

At the beginning of this debate, Obama said he wanted to “lower costs for everyone, improve quality for everyone, and expand coverage to all Americans.” Yet it is far from clear that the industries with whom Obama made his deals will honor them or that costs will actually go down. Rescission and denial of coverage for a prior condition may be banned, but quality of care was scarcely touched upon in the debate and where it was it was generally in terms of cost efficiencies, not healthier and better outcomes. Finally, Obamacare will decrease the number of uninsured although estimates vary by how much. A third of those uninsured could be left without coverage. Worsening economic conditions or “deficits” in healthcare budgeting would increase this number.

As of October 2009, Obama’s healthcare reforms look to accomplish none of his objectives but will result in cuts in Medicare and Medicaid and transfers of wealth from the uninsured and from the government through subsidies to the insurance companies. It was a worthy goal but poorly pursued and executed.

On October 20, 2009, at a OFA webcast of a DNC fundraiser in New York, in response to cries of “Single payer” and “Public option” from the audience, Obama responded:

Among Democrats and progressives there are a whole set of views about how we should do health care. But understand that the bill you least like in Congress right now, the one you least like of the five that are out there would provide 29 million Americans health care -- 29 million Americans who don't have it right now would get it. The bill you least like would prevent insurance companies from barring you from getting health insurance because of preexisting conditions. (Applause.) Whatever the bill you least like would set up an exchange so that people right now who are having to try to bargain for health insurance on their own are suddenly part of a pool of millions that forces insurance companies to compete for their business and give them better deals and lower rates. (Applause.)

First, healthcare will not be “provided” but individuals will be mandated to buy insurance or face a substantial penalty. The quality of that insurance will leave many of them paying the premiums but unable to afford to actually use the insurance because of high deductibles and copays. It continues to leave at least 20 million without any coverage. Now some of these are illegal aliens. Well such an exclusion might make sense from a fiscal point of view. From a public health and humanitarian one, it is insanity. The exchanges he is talking about would not come online until 2013 and would not allow the kind of pooled negotiation he is talking about. While pre-existing conditions could no longer be used to deny coverage, there is nothing here to keep insurance companies from continuing their standard practice of denying needed care. Tellingly Obama never mentioned a public option although that was what initiated his comment. It just is not something he supports. Looking past the fact that his statement was filled with errors and omissions, it is also striking that Obama tried to sell his core audience on a “the bill you least like” rather than one they should have been able to wholeheartedly support.

On October 23, 2009, in typical fashion for this Administration, Obama was reported to have told Congressional leaders that he favored a trigger for the public option. This was subsequently denied by the White House and then re-confirmed by other sources. Currently, the public option is not slated to begin in even a limited form until 2013. A trigger would delay startup until 2018. But in reality a trigger is a political gimmick. Triggers in Washington are never pulled and so by attaching one to the public option, the option would be effectively dead. Ostensibly, the White House has moved to support of a trigger in an effort to win the vote of Olympia Snowe (R-ME), the lone potential Republican vote in the Senate for a healthcare plan. But the real objective is to kill the public option and keep the support of the insurance industry. Meanwhile in the Senate, Majority leader Harry Reid (D-NV) was trying to put together 60 votes for a public option which would allow individual states to opt out of it. This is another bad idea meant to appease Red State legislators. Everyone would still be required to buy insurance, the individual mandate, but states, not the individual, would decide if the public option was a choice. This is fundamentally unfair but in keeping with the overall goal of the exercise which is to expand the franchise of insurance companies rather than extend healthcare to all Americans.

The legislative history of the various healthcare bills has been dismal. Obama’s strategy of running to the right and enlisting the Blue Dogs meant that the process had more to do with addressing the “health” of insurance, drug, and medical corporations. But it also allowed an opening for conservative Democrats to join with Republicans to push their social agenda as well. On November 7, 2009, Bart Stupak (D-MI) offered an amendment on the floor to prohibit any funds in the House version of the healthcare bill from being used for abortions except where the life of the mother, rape, and incest were concerned. (Congressional Record H12921). The amendment passed 240-194 with no Republican voting against and with 64 Democrats voting for. The House then voted on the healthcare bill itself. It passed narrowly 220-215 with only one Republican voting for and 39 Democrats voting against. From a tactical point of view the Obama “run to the right” strategy was a success but it did so by producing an impossibly bad bill.

A November 15, 2009 New York Times story undercut one of the major pillars of Obama’s plan to control healthcare costs. BigPharma has been raising drug prices at the fastest rate since 1992. Even as the Consumer Price Index fell 1.3% in the last year, drug manufacturers increased their prices by 9.3%.

In the Senate, Harry Reid the Democratic majority leader eventually put together his own bill rather than using as a base that of Max Baucus (D-MT), the Chairman of the Senate Finance committee who had dragged out the process through most of 2009. The Senate version was notable for its lack of a public option and its retention of anti-choice language similar to the House bill. In addition, the bill was also held up by various Democratic Senators, mostly conservatives, but also Bernie Sanders (D-VT) for last minute special interest add ons. After months trying to recruit even minimal Republican support and at the expense of making the bill far more conservative, corporate friendly, and unpopular with the public, on December 23, 2009, the Senate voted 60-39 to invoke cloture and the next day on December 24, 2009, the Senate bill was passed by the same margin. Following the Christmas holidays, there was an attempt to pressure the House into passing the Senate bill and so finish the process, but the House, both liberals and Blue Dogs, resisted. At this point external events intervened. In the special election to fill Ted Kennedy’s seat in Massachusetts, the Democrats ran an uninspiring status quo corporatist Martha Coakley. Although Massachusetts is a very blue state, many Democrats simply stayed home. On January 19, 2010, Coakley lost to a Republican with teabagger connections, Scott Brown, and with it Senate Democrats lost their 60 vote super-majority. A healthcare bill looked dead. Considering how bad the Senate and House bills were, this was not a bad thing. However the Obama Administration did not give up. On February 22, 2010, it came out with its own proposal which was essentially the Senate bill with a few tweaks. Notably it contained no public option and this underlines the cynicism of Obama’s approach from the beginning, supporting this option in public and doing everything he could to kill it behind the scenes. Healthcare has become very much a no win situation for Obama and the Democrats. They will look either completely ineffective or completely bought, and 2010 is an election year.

After this, reconciliation which had been dismissed as a means of passing a strong healthcare bill, suddenly became the preferred vehicle. The idea was that the House in a leap of faith would pass the Senate bill and then follow this with a reconciliation measure that would make minor adjustments to it. Obama and the House leadership were greatly facilitated in passing this bad bill with the total cave of the entire House Progressive Caucus, including even Dennis Kucinich. Almost all of these had pledged in writing not to support any bill that lacked a public option, and their defection blew most of their credibility. They were not alone in this. Many liberal organizations, unions, and bloggers opted for loyalty to party and President in supporting a bill that only a few short months previously they had excoriated. Not all did, however, and this exposed a long latent schism on the left between liberals who primarily identify as Democrats and progressives who do not. With "progressives" out of the way, the last stumbling block was a group of anti-choice members led by Bart Stupak (D-MI). Their opposition was overcome by Obama signing an Executive Order, much to the consternation and chagrin of the pro-choice caucus, affirming the Hyde amendment (no federal funds for abortions). On a practical level, the EO does not change that much, but the spectacle of a Democratic President publicly endorsing restrictions on a woman's right to choose are, to say the least, extremely damaging. It illustrates once again that Obama and the Democrats simply have no core principles. That is something that all those groups that went out of their way to support a bad bill should keep in mind. What the Democrats did in abandoning women's rights they will have no compunction in doing to any and every other group that makes up their base.

Late Sunday March 21, 2010, the House passed the Senate version 219-212, and moved on to consideration of the reconciliation bill which passed 220-211 a few minutes later. It bears repeating that though this is always referred to as a healthcare bill, it has almost nothing to do with either the health of Americans or providing them care. From the beginning, it has been about nothing but the money, money that would go to insurance companies from forcing tens of millions to buy insurance they could not afford to use, money from everyone else to the insurance industry, BigPharma, and medical companies because no caps were set on premiums and prices, and finally money from Medicare to the government so that Obama and the politicians could have more to spend on their pork and wars. The great healthcare debate has been a deeply dishonest and cynical exercise of a deeply dishonest and cynical age. It demonstrated with the subtlety of a sledgehammer to any who watched that there is not a single person of either party in the House, the Senate, and the White House who is worthy of, or even capable of, real governance. In this healthcare bill, Democrats have chosen to penalize ordinary Americans already marginalized by the healthcare system and reward the very players who not only did the marginalization but have made the system unsustainable. This is not a fluke. They did the very same thing with their bailouts to the financial industry. Nor am I letting the Republicans off the hook. They are just as obsequious to the corporations as Obama and the Democrats. Being out of power, they do not even bother with the kabuki of putting forward an alternate proposal. What the healthcare debate has shown is that we have, not a dysfunctional, but non-functional political process. Our elites spent a year concentrating on this issue to the exclusion of all other major legislation and they produced a bill that will not even minimally address the healthcare needs of Americans or bring an out of control system back into sustainability. It is impossible to describe how massive a failure this has been, especially when we had so many working models to choose from in the industrialized world, or what this bodes for the country's future, not just in healthcare but on all issues.

On March 25, 2010, the Senate passed the reconciliation sidecar to the main healthcare bill 56-43. Before the vote, the Senate Parlementarian ruled that two minor parts concerning Pell grants violated the Byrd rule (i.e. they were without financial impact). These were removed. The measure was then passed and sent back to the House. This showed yet again the essential dishonesty of those involved. Obama and majorities in both the House and the Senate had stated support for a public option. Reconciliation allowed for passage by simple majority in the Senate. Yet even though the measure was being sent back to the House, the public option, which Democrats professed to wanting and which a large majority in the country favored, was not included. Also on March 25, 2010, in Iowa, Obama responded mendaciously to a questioner who asked why the public option was not in the bill, "Because we couldn’t get it through Congress, that’s why." Again Obama and the Democrats enjoy the largest majorities in the Congress, of either party, in 80 years. If they had really wanted it, instead of just saying they wanted it, something to throw out to the rubes, it would have definitely made it into the reconciliation bill. Finally, on March 25, 2010, the House passed the Senate modified reconciliation measure 220-207.

On July 13, 2010, it was announced but virtually uncovered in the media that Liz Fowler would join the Obama Administration as deputy director of the Office of Consumer Information and Oversight at HHS where she would oversee the rules implementing Obama's healthcare plan. Fowler was Max Baucus' chief staffer on healthcare issues from 2001-2005. She then went to work at Wellpoint, the nation's largest private insurer, as a Vice President from 2006-2008. She then returned to work for Baucus, now the Chair of the powerful Senate Finance Committee. Obama's healthcare plan was principally written in this committee and Fowler was its principal author. So now we have this person with this massive conflict of interest not only having written much of Obama's corporate friendly healthcare plan but now writing the rules to implement it.

On September 16, 2010, Census data for 2009 showed the number of uninsured increased by 4.4 million to 50.7 million or 16.7% of the population.

27. Following in the steps of the Bush Administration, Obama’s Justice Department has sought to use the state secrets argument to shut down litigation about the government’s illegal activities in the Binyam Mohamed case (extraordinary rendition), the Electronic Frontier Foundation case (domestic spying) and the al Haramain case (also domestic spying).

A September 22, 2009 story in the NYT first reported that Attorney General Eric Holder will limit the use of the state secrets defense and institute a review process in which the Attorney General must sign off on any such use. The memo released the following day would in theory raise the bar for the invocation of states secret from a reasonable danger to significant harm to national security. It also promised that this argument will not be used to “(i) conceal violations of the law, inefficiency or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States government.” The memo provides a kind of out to this. If states secrets is claimed but the Attorney General concludes “the case raises credible allegations of government wrongdoing, the Department will refer those allegations to the Inspector General of the appropriate department or agency for further investigation.” This is considerably weaker than the DOJ beginning its own investigation.

The timing of the memo is to say the least interesting. Attorney General Holder already had approved the use of the state secrets argument in cases like al Haramain where wrongdoing and violation of the law by the government played large roles. The memo was released the same day as oral arguments in that case were scheduled to be heard. In other words, this seems to be more about process than result. It repackages the Bush policy but does not change its substance.

On September 30, 2009, a notification was filed in the case of Horn v. Huddle suggesting a deal had been struck. The 15 year old case involved a DEA agent Horn who accused the CIA in the person of Huddle of spying on him during a tour in Burma. The government had invoked the state secrets argument to protect the covert status of Huddle and the case went nowhere. It took on new life when it came out that Huddle’s covert identity had been rolled back by Huddle himself among others. The government’s decision to settle appears to be an effort to pre-empt a judicial ruling that would further damage its state secrets position. On September 8, 2010, the supposedly liberal 9th Circuit Court of Appeals in an en banc 6-5 decision ruled in favor of the government's states secret argument. This will be precedent in that circuit but is another strong indication that federal courts are willing to accept the dodge of the state secrets argument and will preclude the government's liability with regard to victims of its torture programs. In an ironic development on September 9, 2010, the Iraqi government agreed to pay $400 million in compensation for mistreatment of US citizens by the regime of Saddam Hussein following his1990 invasion of Kuwait. So while the current government will take responsibility for acts it had no control over, being committed by the previous regime, our own government will not take similar responsibility for its own acts.

28. During his campaign Obama decried Bush’s use of signing statements but on March 11, 2009, Obama attached one to the 2009 Appropriations bill. In particular, he signaled that he and his Administration had no intention of seeking Congressional approval if he chose to spend funds other than as directed by the Congress:

“Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement”

and he said he would not protect whistleblowers:

“I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”

29. Several of Obama’s nominees had tax problems which his vetting process should have caught. Here are the names, the posts, the amounts involved, and what happened. Tim Geithner Secretary of the Treasury $34,000: confirmed Tom Daschle Secreatry of Health and Human Services $128,000: withdrawn Nancy Killefer $900 White House Chief Performance Officer: withdrawn Ronald Kirk nominated as US Trade Representative $10,000: confirmed

30. On January 5, 2009, Obama announced his intention of nominating University of Indiana law professor to head the Office of Legal Counsel in the Department of Justice. The purpose of the office is to give controlling legal advice on request to the Executive Branch. The office and its mission were greatly debased in the Bush years by the likes of Jay Bybee, John Yoo, and Steven Bradbury who turned the office into an advocate of and accomplice in Bush’s torture program. Johnsen is one of the few liberals selected by Obama to fill any post. As of July 2009, her nomination has been left by the Administration to slowly twist in the wind for 6 months.

After having let her nomination slowly twist in the wind for 11 1/2 months, on December 24, 2009, the Senate recessed for the year. It passed a unanimous consent resolution to carry over nominations to its session next year. Johnsen’s name was not part of the consent agreement. In other words, her nomination has been returned to the White House without any action taken. Unless the White House re-submits her name, her nomination is dead. This illustrates how conservative and unliberal the Obama Administration is. There are now virtually no liberals or progressives in it or slated to join it. The failure of the Johnsen nomination, in conjunction with the removal of Craig Gregg as White House counsel (item 102) and his failure to close Guantanamo (item 11), is further evidence of Obama’s retreat from and repeal of what minor efforts and gestures he made in the early days of his Administration to restore the rule of law. The White House did, in fact, renominate Johnsen but then returned to slowballing her confirmation. This raised the question of whether Obama was using her nomination not to fill the OLC job but to keep it vacant.

On April 9, 2010, after 14 months in limbo, Dawn Johnsen withdrew her name from consideration. The Johnsen episode shows the complete lack of commitment to a return of the rule of law by this Administration, Obama's desire to maintain an imperial Presidency (which a strong OLC head would have curbed), his ongoing rejection of all things progressive, and a further betrayal of his promise to bring change to Washington.

31. Eric Holder, Obama’s choice for Attorney General was supposed to restore integrity and professionalism to the Department of Justice after its politicization by John Ashcroft, Alberto Gonzales, and Michael Mukasey. Instead he is following in their footsteps. He has invoked the state secrets act to hide government wrongdoing. He is toeing the White House line on no investigation and prosecution of Bush torturers or those involved in extraordinary renditions (see 71 update). He tacitly defends domestic spying under Obama by refusing to call what Bush did illegal (as he once did. Because if he did, he would have to do something about it and that isn’t the company line.) So he engages in weaselry of saying that Bush may have contravened the law --as if there is a difference between this and illegality. He has not pushed for the confirmation of Dawn Johnsen to the OLC. He has been glacial in his replacement of the heavily politicized Bush era US Attorneys, even Leura Canary who was deeply implicated in the political hit on Don Siegelman the former Democratic governor of Alabama or Mary Beth Buchanan who also engaged in a politically motivated prosecution of the controversial forensic pathologist Cyril Wecht in Pittsburgh.

32. Obama has failed to take any action against a second oil bubble. It is unclear that he is even aware of it. On February 12, 2009 the near futures price Cushing intermediate crude, the American benchmark, hit a low of $33.98/bbl. On June 19, 2009, the closing price was $69.55, a 105% increase in just 4 months. What is important to realize here is that the economy remains in bad shape and our oil stocks in this country are 55.963 million bbls (a truly huge number) over what they were this time last year. So we have weak demand and a massive over supply, and yet high oil prices. There is no reason for this, except excessive oil speculation by financial players whom Summers and Geithner have dumped vast amounts of money on. Now that they have gambling money they are gambling with it --in a venue where margins allow leveraging of 15-20 to one. As for gasoline prices, the oil companies have used the spike in oil to cover their own upward price manipulations.

33. Obama decided to keep on Bush’s defense team. He kept on Bush’s Defense Secretary Robert Gates. Gates a Republican was involved in the Iran-Contra affair. Despite supposedly rolling back Donald Rumsfeld’s excesses, Gates has been a steadfast supporter of Bush’s, now Obama’s, wars. Just how important the Secretary of Defense is in the government is that Defense accounts for around 55% of the federal government’s discretionary budget, i.e. not mandatory spending on entitlements and interest on the national debt. So Obama after 8 years of the worst President in our history left Bush’s man in control of something over half of what most of us consider to be the federal government. Nor did Obama stop there he kept David Petraeus on as head of CENTCOM which oversees the wars in Iraq and Afghanistan and Ray Odierno in Iraq. And he has Odierno’s plan to delay any withdrawal from Iraq until next year and to keep large numbers of American troops in Iraq for as long as possible. He has also followed Petraeus’ advice to escalate in Afghanistan.

34. Despite being deeply resented, destabilizing, and illegal, Obama has continued Bush’s policy of missile strikes inside Pakistan.

35. Obama has never publicly abandoned Bush’s domestic spying programs. Indeed he is setting up a center for cybersecurity. As an unnamed official said in the Bush era, “If you're going to do cybersecurity, you have to spy on Americans to secure Americans.”

36. Elena Kagan, Dean of the Harvard Law School, was Obama’s choice as Solicitor General. The Solicitor General is supposed to among other things argue the government’s cases before the Supreme Court. Kagan has no courtroom experience. Her nomination was announced on January 5, 2009, the same day as Dawn Johnsen’s. Unlike Johnsen, she won easy confirmation on March 19, 2009, perhaps because in her confirmation hearing she was so supportive of expansive Presidential powers.

On May 10, 2010, Obama nominated Kagan to the Supreme Court to replace the departing John Paul Stevens, perhaps the last of the Court's liberals. Kagan has no experience as a judge or a litigant. She has argued only a handful of cases in a fairly undistinguished manner before the Court as Solicitor General. Although an academic, she has published next to nothing on any legal issue in her entire career. Nor has she spoken out on any legal or Constitutional question of our times, or of any time. Despite 8 years of egregious excess under Bush, she remained silent throughout. The only exception to this was a partial refusal to allow military recruiters at the law school, a position upon which she subsequently caved. That's it. There are some dreadfully unqualified people on the Court, most notably Samuel Alito and Clarence Thomas, but compared to Kagan their backgrounds, pathetic under any normal circumstances, are vast.

Her confirmation will make an already radically conservative Court even more conservative, more supportive of corporations and the extreme claims of Executive power made by Bush and championed by Obama. This looks like a win for Obama and a loss for the country and the Constitution. On August 5, 2010, the Senate confirmed Kagan on a vote of 63-37.

37. One of the few apparent concessions labor got in exchange for all of its support for Obama was a commitment to the Employee Free Choice Act (EFCA). The act sought to reduce employer intimidation of employees considering a union by giving empolyees the option of signing up for a union outside of the company’s purview. When Obama wants something he is not shy about pushing for it. When he doesn’t care, he leaves it to die on the vine. This was the fate of EFCA. Trillions for banks, and nothing for American workers. The contrast could not be more stark.

38. Inspite of the wholesale embrace of Bush and Republican positions by Obama and the Democrats, the Republican party pursued its relentless course toward lunacy and implosion. This caused Senator Arlen Specter (R-PA) to jump ship and join the Democrats. Although Specter is 79, he is still planning to run for re-election in 2010 (when he will be 80). With the Northeast turned a decided Blue, he felt like an endangered species and switched parties for purely tactical reasons. His voting record is far more conservative than even the most conservative of Democrats. He even boasted that while he was becoming a Democrat he would not change his voting stance on any issue. The real question here is why Obama and the Democrats let Specter change parties. He isn’t going to vote with them much. He’s even more conservative than they are. And he’s only doing it to get re-elected. A better, younger Democrat for Pennsylvania could probably be picked at random from a phonebook but instead Obama and the Democrats embrace a Republican that contributes nothing to them or their party.

39. On June 17, 2009, Obama laid out the Summers-Geithner program for reform of the financial system. The financial industry needs many key reforms. Among the most important of these is the re-imposition of Glass-Steagall which separates investment banking from regular banking and insurance activities. In doing so, it would also go some of the way needed to prevent financial institutions becoming too big to fail (TBTF) and in posing systemic risk. It is a good barometer of how serious the Obama Administration is about financial reform. It is telling that it wasn’t mentioned. In the white paper, there were 5 major proposals, none of which amounted to much:

1. Promote Robust Supervision and Regulation of Financial Firms.

The chief proposal is to make the Fed the systemic risk regulator, a job it is exceptionally ill equipped for as its inability to see the housing bubble and financial meltdown attest. Otherwise, there are minor adjustments in regulatory agency authorities. For the rest there are vague suggestions that TBTF institutions and Money Markets should be better capitalized or more liquid or have access to emergency credit. What to do about Fannie and Freddie is left hanging. The one good suggestion is forcing hedge fund managers to register with the SEC but the question remains open how much detailed information the SEC will demand and if it will act better than its pathetic recent history would suggest.

Finally, none of these proposals addresses the perilous state of pension funds and their ongoing attempts to recoup losses through increased moral hazard.

2. Establish Comprehensive Regulation Of Financial Markets

Standardized over the counter (OTC) derivatives would have to be traded through regulated clearinghouses and there would be reporting requirements for them. There are two things seriously wrong with this proposal. First, the most dangerous kinds of derivatives like CDSs aren’t standardized and so would remain outside any reporting or regulatory regimen. Second, the currently approved clearinghouse for OTC derivatives is the Intercontinental Exchange (ICE). It was created by big financial concerns like Goldman, JPMorgan, and Morgan Stanley as a fee collection machine. JPMorgan is the biggest holder of derivatives on the planet. Reporting requirements through the ICE would essentially have the banks reporting to themselves about themselves, and sending a copy to the CFTC.

In addition loan originators would be required to retain 5% of the credit risk on their loans. It is hard to see how an exposure set so low would significantly reduce moral hazard or slow bubble formation. One good idea is to eliminate the immediate recognition of gain on sale because, as we have seen, such bookkeeping treats something as a gain for bonus purposes (increasing moral hazard) when, in fact, it is a loss waiting to happen. Ratings agencies are required to do a better job, well duh, and must report conflicts of interest, but the biggest conflict of interest, that they are paid by those they rate remains in place.

3. Protect Consumers and Investors from Financial Abuse

The principal mechanism for this is the creation of a Consumer Financial Protection Agency (CFPA). This is a good idea in a limited way but it can also be highly deceptive. Consumers aren’t going to see this agency roll back usurious credit card rates, for example. There will just be some clearer language that you will be charged usurious rates.

However, the housing bubble would likely have gone off exactly as it did even if the CFPA had been in place. Before 2004, concerns about subprime and Alt-A loans would have been theoretical and it is unlikely the CFPA would have done much about them. In 2004-2005, the bubble would have been expanding rapidly but as interest rate resets were a couple years in the future, the CFPA would still have had nothing concrete to act upon. In 2006, after the bubble had already peaked and when it was beginning to show wear, the CFPA would probably have begun to take a look at the problem but by then it would already have been too late. It would have been late 2006 or early 2007 before came up with any recommendations. As it was the bubble began to pop in June 2007 with the demise of some Bear Stearns funds and then blew up spectacularly on August 9, 2007 with the freezing of the BNP Paribas funds. It is hard to see what the CFPA could have done about any of this.

In other words, the government shouldn’t be telling consumers a deal is bad. If it sees a deal is bad, it should be able to prohibit it.

4. Provide the Government with the Tools it Needs to Manage Financial Crises

The implicit idea here is that government did not have the tools to deal with housing crisis and financial meltdown, and that consequently it wasn’t the fault of say the head of the New York Fed, a guy named Timothy Geithner, or the head of the Fed Ben Bernanke, or really anyone. This is a cop out. The Fed created trillion dollar programs out of thin air. The Fed and Treasury told companies as disparate as Washington Mutual, Bear Sterns, Lehman, AIG, Citigroup, and General Motors whether they were going to live or die and what was going to happen to them. The idea that the Fed and Treasury did not have the legal authority to take Prompt Corrective Action against companies like Goldman, Morgan Stanley, and JPMorgan is a fiction.

5. Raise International Regulatory Standards and Improve International Cooperation

This is a sop to the G20. The truth is, in the absence of effective American leadership, countries are all going their own way.

The essential thrust of the Obama regulatory proposals is to tinker around the edges of our crony capitalist system, in a very Cass Sunstein “Nudge” sort of way. Taking into account his trillions for banks, an ineffective stimulus, and cosmetic regulatory changes, none of which address any of the fundamental problems underlying the collapse of the housing bubble and the financial meltdown, Obama has bet the farm and the country on what must be a failed policy.

On September 23, 2009, it was reported that Obama was willing to remove retailers, real estate brokers, lawyers, auto dealers, cable companies, and accountants from the list of those the Consumer Financial Protection Agency (CFPA) would oversee. Nor can the CFPA require banks to offer a plain vanilla version of their products. This significantly weakens the only positive initiative in Obama’s financial reform program by taking away oversight of most of the purchases that consumers are likely to make. Barney Frank (D-MA), Chairman of the House Financial Services Committee, also has circulated a draft proposal to this effect.

One of the more promising aspects of the CFPA was that its regulations were only to be a floor or minimum set of standards which could be superseded by stricter state regulations. This approach was always fairly dubious and signaled that Congress and the Executive were not that serious about regulation even with the CFPA. However as reported on October 12, 2009, a conservative Democrat on the House Financial Services Committee, Melissa Bean of Illinois, was sponsoring an amendment backed by the financial industry to take even this power away from the states and make the CFPA’s regulations the ceiling, in other words turning its minimums into the maximum standards. On October 19, 2009, Bean and Frank worked out a deal in which Bean has pulled her amendment for now but may introduce it later. On October 21, 2009, the essence of this deal became more apparent as the Frank’s Financial Services Committee adopted an amendment that gave the Office of the Comptroller of the Currency (OCC) the power to override state regulation if it was found to significantly interfere with federal policies. It is important to remember that this is the same OCC which in 2003 spiked the efforts of attorney generals from all the states to go after predatory lending practices in the mortgage industry, thus facilitating the formation of the housing bubble. Obama and Frank’s sellout to the financial industry and the charade of their regulatory reforms continue.

40. John Brennan, Obama’s transition chief for intelligence and chief of staff to former CIA Director George Tenet, was Obama’s first choice to head the CIA. While he condemned waterboarding, Brenan had supported other “enhanced interrogation techniques,” rendition (for the purposes of torture), and domestic spying. When these views became known, in part through blogs, Brennan removed himself from consideration. Obama, however, did not cut him loose but, instead, made him his counter-terrorism adviser. From this position, he opposed the release of the OLC torture memos which exposed just how shabby the legal foundation was for Bush’s torture policies.

41. Chas Freeman was DNI Dennis Blair’s choice to head the National Intelligence Council. Freeman, a career diplomat, was a former ambassador to Saudi Arabia under Bush I. Because Freeman had a perspective that included the Arab world, he was vigorously opposed by the usual AIPAC noise machine. He withdrew.

42. Obama picked Admiral Dennis Blair to be Director of National Intelligence. The DNI is the top US intelligence position. Blair has a dubious past. While serving in Indonesia, he refused repeated directives from Washington to express US opposition to atrocities being committed by Indonesian generals in East Timor.

On May 20, 2010, Obama fired Blair/asked for his resignation. It is not so much that Blair was particularly more incompetent than many others in the Obama Administration. He just wasn't as politically connected as they were. This episode says something both about Obama's poor choice of personnel and ongoing disarray in his intelligence policy. It also likely marks a return to a more aggressive, and self-defeating, approach to the War on Terror.

43. Obama is doubling down in Afghanistan and has chosen a special ops General Stanley McChrystal to head his war there. When McChrystal previously ran special ops in Iraq, there were numerous reports of torture by his men. His previous Afghanistan history includes being involved in the Pat Tillman coverup. McChrystal approved a medal for Tillman even though he knew his death had been from friendly fire. McChrystal was confirmed by unanimous consent on June 10, 2009 in the Senate.

44. On February 4, 2009, Obama threatened to suspend US intelligence cooperation with Great Britain if the UK High Court released information about Binyam Mohamed’s torture while in US custody. Mohamed’s allegations included the slicing of his penis with razor blades while being held in Morocco. He was subsequently transferred to Guantanamo where he spent 4 years. The High Court suppressed the information. The Obama Administration thanked the British and Mohamed was released to the British on February 23, 2009. If American courts reject Mohamed’s suit over his detention, the US government will destroy the photos it possesses of his abuse while detained.

On October 16, 2009, a British high court ruled that Foreign Secretary David Miliband had acted improperly in suppressing the information in question about Binyam Mohamed. The court ruled that there was a compelling public interest and that

"The suppression of reports of wrongdoing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law," Lord Justice Thomas and Mr Justice Lloyd Jones ruled. "Championing the rule of law, not subordinating it, is the cornerstone of democracy."

It would be good if the Obama Administration realized that the rule of law is more important than the protection of torturers.

45. In another move echoing the Bush White House’s obsession with secrecy, the Obama Administration is arguing that logs of who visits the White House are Presidential records not subject to FOIA requests. The logs are created and kept by the Secret Service whose records do fall under FOIA. In December 2007 and again on January 9, 2009, federal judge Royce Lamberth ruled against the Bush Administration which was seeking to block the release of visitor lists to the White House and Dick Cheney’s residence. The Bush Administration appealed the decisions, and the Obama Administration in both January and May 2009 filed papers supporting the Bush appeal. The Obama White House is also refusing to release its own visitor logs requested by MSNBC, and a more limited request made by the watchdog group CREW for visits by coal executives. On July 22, 2009, CREW filed a second lawsuit against the Department of Homeland Security to obtain White House logs of visits by top healthcare industry officials during the debate on healthcare. The White House counsel’s office then reversed course and released the names on the same day.

On September 4, 2009, the White House issued new guidelines. After September 15, 2009, visitor logs would be released after a 90-120 day hold. This policy is voluntary and could be rescinded by this or future Presidents. In addition, a small number of what were called “sensitive meetings” would not be disclosed. This could be a significant loophole. Any outstanding lawsuits over past visitor logs are left unaddressed by the policy change.

46. Back in April 2008 candidate Obama supported the elimination of the military’s “Don’t ask, don’t tell” (DADT) policy,

“I think there's increasing recognition within the Armed Forces that this is a counterproductive strategy. We're spending large sums of money to kick highly qualified gays or lesbians out of our military, some of whom possess specialties like Arab-language capabilities that we desperately need. That doesn't make us more safe.”

Nevertheless, he said at the time that he would not make repeal of the policy a criterion in selection of members to the Joint Chiefs.

Since becoming President, Obama has significantly backtracked on his pledge. On June 8, 2009, the Supreme Court denied cert to James Pietrangelo II, a former Army Captain in the JAG corps, who was contesting DADT. He was forced out of the military in 2004 after coming out. In an opposing brief, Elena Kagan, Obama’s Solicitor General, stated, that the prohibition on gays serving openly in the military was “rationally related to the government’s legitimate interest in military discipline and cohesion.” In another case also dating from 2004, the Obama Administration is continuing the Bush era dismissal of Air Force Major Margaret Witt. In this case, an appeals court has required the Administration show what interest it served to separate this much decorated officer from the military.

In June 2009, Obama’s Press Secretary Robert Gibbs began putting out the line that the proper avenue to repeal the 1993 DADT act was legislation, but, in fact, Obama has proposed no legislation on the subject. Congress has scheduled no hearings. I was curious if stopping service separations based on DADT could only be accomplished through a change in the law. So I looked at the text of the statute, something that apparently no one in the Obama Administration has done. The reasons for separation are given in part (b) of the act and these are that the person has engaged in homosexual acts, has declared that they are homosexual or bisexual, or has attempted to marry someone of the same sex. But part (e) of the act states the following:

Nothing in subsection (b) shall be construed to require that a member of the armed forces be processed for separation from the armed forces when a determination is made in accordance with regulations prescribed by the Secretary of Defense that— …

(2) separation of the member would not be in the best interest of the armed forces.

Now such a determination by the SecDef is a very straightforward way to administratively overturn DADT. Obama could have acted if he had wanted to on this issue by so directing his Secretary of Defense. That he didn’t is a fairly clear indication that he didn’t want to. On January 27, 2010, in his State of the Union (SOTU) Obama said:

This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. (Applause.) It's the right thing to do. (Applause.)

Note that Obama only promised to work for repeal, not actually promise to repeal. As 2010 is an election year, if a repeal was not completed this year, the Administration would have to start over from zero next year because it would be dealing with a new Congress.

On February 1, 2010, the Washington Post reported that Defense Seretary Gates would announce on February 2, 2010 a year long study to evaluate the effects of overturning DADT and lifting the ban on gays in the military. In the meantime gays could still be dismissed from the service but the evidentiary standard for such separations would be raised in some undefined way. Even after the study was done, it is unclear how long it would take to implement a new policy. Studies and commissions are often used as a way to kick the can down the road. The truth is the statute has been on the books for 17 years. Gates and the military don’t need a study to tell them what to do. It is clear what needs to be done. They and Obama just need to do it.

On March 25, 2010, Defense Secretary Robert Gates announced, not a moratorium, but a few limited restrictions on DADT. He said that evidentiary procedures would be tightened up for gays who were outed by third parties. This would affect only about 1 in 5 of current cases. Gates' announcement looks aimed at forestalling Congressional action which would end the policy. On April 30, 2010, Gates and Chairman of the Joint Chief of Staff Mike Mullen announced they opposed any changes in DADT until their commission is finished in a year. This is further evidence that the DOD and Obama Administration are looking to a new Congress to definitely kill attempts at repeal.

On May 24, 2010, Joseph Lieberman (I-CT), a favorite vehicle through which the Obama cycles unpopular proposals, announced a "compromise" in which DADT would remain in effect until the completion of the Pentagon's study and the President, Secretary of Defense, and Chairman of the Joint Chiefs all had signed off on it. Additionally, there would be no benefits (in comment) for domestic partners in contravention of the anti-gay Defense of Marriage Act. In other words, gays might eventually be allowed to serve openly in the military, but at the price of being legally discriminated against. This merely replaces one kind of injustice with another.

On October 12, 2010, federal district judge Virginia Phillips for Central California enjoined the federal government from enforcing DADT and ordered it to suspend and discontinue all DADT related investigations. On October 14, 2010, the Obama Administration asked Phillips for an emergency stay while it appealed her decision.

On November 30, 2010, the Pentagon released its study on DADT. Unsurprisingly, it showed that repeal would not be a big deal. However, Secretary of Defense Robert Gates continued his go slow approach repeating that repeal would need "sufficient time and preparation to get the job done right." "Getting the job done right" is a Washington euphemism for stretching something out as long as possible. If Truman had been as lackadaisical, it might have taken until the 1960s for the armed services to desegregate.

On December 6, 2010, Secretary of Defense Gates said he was not optimistic that DADT repeal would pass in the lame duck Congress. Of course, this failure was set up by Gates himself and the Obama Administration. They created the need for a report, they controlled its timing, they threw the vote into the lame duck session where it died. The whole point was to kill legislative repeal. The chances for repeal in the new, more conservative Congress are nil. Now Gates is playing the judicial angle by worrying publicly that a court decision repealing DADT would not give the Pentagon sufficient time and preparation for implementation and hoping such an argument will give Congress a reason to act. This indicates real concern for a judicial repeal of DADT and a desire to keep control of the process through legislation. On December 9, 2010, a Senate vote on cloture on the Defense Authorization bill which contained repeal of DADT failed 57-40, and DADT repeal looked dead. However, the bill was reintroduced as a stand alone measure and passed the Senate 65-31 on December 18, 2010. A similar measure passed the House on December 15, 2010 on a vote of 250-175. It makes you wonder why this could not have been done nearly two years ago. With DADT on its way out and with the decision by the Obama DOJ not to defend DOMA (item 49), the Ninth Circuit Court of Appeals on July 6, 2011 lifted a stay of an injunction against DADT. The Pentagon responded by ending the enforcement of DADT worldwide. Then on July 15, 2011, Justice filed for an emergency stay to be re-imposed. The court was having none of it and allowed the stay to continue during the appeals process. Basically, the Obama Administration will fight to the bitter end in the name of observing the finest legal niceties while at the same time it refuses to investigate and prosecute Wall Street, torture, and the Bush Administration.

47. On May 26, 2009, in a 5-4 decision the Supreme Court in Montejo v. Louisiana overturned the 23 year precedent of Michigan v. Jackson. Jackson said that custodial interrogation of a Mirandized suspect by law enforcement, with the consent of the suspect, was perfectly fine, but at the point a court appointed an attorney such interrogation must be suspended until the accused had a chance to consult with his/her attorney. This seems like a very commonsense kind of rule. It was, however, overturned by a radically conservative Supreme Court. What is less known is that Obama’s Department of Justice (DOJ) filed an amicus brief supporting the overturning of Jackson arguing principally that it wasn’t necessary given 5th Amendment (Miranda) protections. But as Jackson was based on the 6th Amendment, it is very unclear how overturning it was anything other than a weakening of those 6th Amendment protections, i.e. the right to "assistance of counsel for his defense."

48. To be fair, this is a Bush era case that extends into the Obama Administraion. On June 18, 2009, in another 5-4 decision in District Attorney’s Office for the Third Judicial District v. Osborne, the Supreme Court held that Osborne who had been convicted in 1994 of a brutal rape of a prostitute in Alaska had no Constitutional right of access to state’s evidence for the purpose of possibly exculpatory DNA testing (at his own expense). For many reasons, Osborne is not a sympathetic character, but then people in these cases (like Miranda) seldom are. There was a lot of physical evidence, circumstancial evidence, and testimony of his colleagues that tied him to the crime, and much later he confessed to it. But DNA testing available at the time was fairly primitive and showed only that semen matched to Osborne and about 16% of the population.

The case was argued on March 2, 2009. Eric Holder took up his job as Attorney General on March 27, 2009. It is unclear that there was any Obama Administration review of the case (and there should have been). As it was, a December 2008 amicus brief from the Bush DOJ was never amended or withdrawn. It stated that “There is ‘no settled tradition’ of granting postconviction access to the prosecution’s evidence locker—whether for DNA testing or anything else.”

The SCOTUS decision finding against any 4th Amendment Due Process right throws the matter back to the inconsistency and vagaries of state laws. And while Osborne may be a thug, it just became harder for the wrongly convicted to find exoneration using DNA testing.

49. The Defense of Marriage Act (DOMA) was signed into law by Bill Clinton on September 21, 1996. It stipulates that the federal government defines marriage as between one man and one woman and that states do not have to recognize same-sex marriages that took place in other states. The bill passed the House 342-67 and the Senate 85-14, indicating a lot of Democrats voted for this 118 and 32 respectively, in fact. It is an interesting exercise to go back and see how many “liberal” Democrats voted for DOMA.

As a candidate Obama said that he opposed same-sex marriage but supported civil unions and pledged to repeal DOMA. But on June 11, 2009, Obama’s Justice Department filed a notice to dismiss in a challenge to DOMA mounted in federal district court in California (Central District Southern Division). The case is Arthur Smelt and Christopher Hammer v. US. The couple were married in California at a time when same-sex marriage was legal. It is not a good challenge for the reasons, which the government notes (p.13 of pdf), that they

lack standing to challenge either Section 2 or Section 3 of DOMA. Plaintiffs lack standing to challenge Section 2, because they nowhere allege that they have actually been denied any rights or benefits under the laws of another State resulting from the refusal of that State to acknowledge their marital status. They lack standing as well to challenge Section 3 of DOMA, because they do not allege that the federal definitions of “marriage” and “spouse” in Section 3 have ever been applied to them for purposes of any federal law.

But even a cursory glance through the brief’s table of contents shows sweeping arguments that clearly overreach:

DOMA is a valid exercise of Congress’s Power under the Full Faith and Credit Clause

DOMA is consistent with Equal Protection and Due Process Principles

DOMA does not impinge upon rights that have been recognized as fundamental

DOMA satisfies rational-basis review DOMA does not violate the Right to Privacy

DOMA cannot be said to infringe upon any “right” under the Ninth Amendment

The fact is that all of these gay rights cases fundamentally violate the Equal Protections Clause of the 14th Amendment, that these laws are inherently discriminatory and there can never be any rational basis for them, that they can never serve any public interest, and that the Right to Privacy springs directly from the often overlooked 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

All this is bad enough but in a now infamous passage Obama’s DOJ lumps same-sex marriage in with incestuous and underage marriage:

And the courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with the public policy of the forum. See, e.g., Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (marriage of uncle to niece, “though valid in Italy under its laws, was not valid in Connecticut because it contravened the public policy of th[at] state”); Wilkins v. Zelichowski, 140 A.2d 65, 67-68 (N.J. 1958) (marriage of 16-year-old female held invalid in New Jersey, regardless of validity in Indiana where performed, in light of N.J. policy reflected in statute permitting adult female to secure annulment of her underage marriage); In re Mortenson's Estate, 316 P.2d 1106 (Ariz. 1957) (marriage of first cousins held invalid in Arizona, though lawfully performed in New Mexico, given Arizona policy reflected in statute declaring such marriages “prohibited and void”).

Reeling from the bad press on this, on June 17, 2009, Obama announced a hastily put together Presidential memorandum (weaker than a directive because it only remains in force for the length of the Obama Presidency) extending federal benefits (such as sick leave) to same-sex couples and his support for the Domestic Partners Benefits and Obligations Act.

Obama said,

It's a day that marks a historic step towards the changes we seek, but I think we all have to acknowledge this is only one step. Among the steps we have not yet taken is to repeal the Defense of Marriage Act. I believe it’s discriminatory, I think it interferes with states’ rights, and we will work with Congress to overturn it.

DOMA as an assault on states rights is a really lame argument since DOMA allows states not to accept the same sex marriages of other states. Still it remains to be seen if Obama means any of this or if it is just PR. Will he fight for the Domestic Partners Benefits bill? Will he, as he has not yet done, send up a bill to Congress to overturn DOMA? Will he fight for that? Because as things currently stand, his DOJ is set to go into court on August 3, 2009 and push for the dismissal of the Smelt-Hammer challenge to DOMA.

On August 17, 2009, the government filed a brief in which it asked that Smelt and Hammer’s suit be dismissed with prejudice, i.e. they would not be allowed to refile on their claim. In response to all of the bad press associated with their previous brief, the government’s attorneys removed those references which were so objectionable and even went so far as deny that the Obama Administration supported DOMA:

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality,

While striking a placating note, this is still a curious argument because the government is very much not defending statutes violated repeatedly by members of the Bush Administration with regard to torture, detention, rendition, and domestic spying.

The government went on to declare that it did not agree with those who sought to use DOMA to attack same sex couples as parents. Citing numerous national professional groups, the government stated

that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents

Instead the government concentrated on 3 issues, it challenged how the case came from state to federal court. They also repeated their lack of standing argument which was always their strongest and most defensible point. And they recast their “rational basis” argument. They took the position that marriage laws were in flux in the states and that the federal government had a reasonable interest in waiting out this process to see where the states came down. Of course, DOMA was enacted precisely to preempt any such waiting out period.

The government sought to finesse any remaining arguments by pointing out that arguments made by the plaintiffs with regard to “the Full Faith and Credit Clause, the right to travel, the right to privacy, the First Amendment, and the Ninth Amendment,” having not been addressed by the plaintiffs in their brief, must be taken as conceded. These are very sticky issues for the government and I am sure if they can avoid them this way they certainly will. But the case continues to raise the question why if the Obama Administration opposes DOMA it is not doing more to get it repealed.

On February 23, 2011, Attorney General Eric Holder announced that the Department of Justice would not defend DOMA in court, but only in those circuits which have not held that restrictions based on sexual oritentation are Constitutional. In circuits where such restrictions have been held to be Constitutional, the DOJ will continue to defend the statute. Wishy-washy as this statement is you can see it as positioning for Obama's 2012 re-election campaign.

50. On June 16, 2009, the House passed 226-202 the conference report for HR 2346, the supplemental appropriations bill, funding the wars in Iraq and Afghanistan through September 30, 2009, increased funding for the IMF, and for a variety of other purposes. 221 House Democrats voted for it with only 32 opposing. 170 House Republicans voted against it with only 5 voting for.

On June 18, 2009, the Senate passed the supplemental 91-5. Only Russ Feingold (D-WI) and Bernie Sanders (I-VT) from the Democratic Caucus voted against. Byrd (D-WV) and Kennedy (D-MA) were absent.

The fight over the supplemental was both political theater and a watershed moment for Democrats. On May 14, 2009, the House originally passed a version of the supplemental 368-60 with strong bipartisan support (200 Democrats and 168 Republicans). The Senate began the games when it attached an amendment by Joe Lieberman (I-CT) and Lindsey Graham (R-SC) The Detainee Photographic Records Protection Act of 2009 to its version. Its purpose was to prevent the FOIA mandated release of a batch of Iraq torture photos. The Senate also included $5 billion for the IMF to help poor countries suffering from the global financial crisis, and a $100 billion credit line. On May 21, 2009, the Senate version passed 86-3.

The Senate and House bills went to conference to be harmonized, but the Senate bill caused House support for the supplemental to fracture, in fairly interesting ways. The Republicans bailed because of the IMF aid. For 7 years, Republicans had beaten their chests demanding that nothing stand in the way of “supporting the troops”. This was, of course, code for support for Bush’s wars since otherwise the Republicans had no compunction about treating the troops quite shabbily subjecting them to mulitple and longer combat deployments and skimping on care for the wounded. Nevertheless, turning on a dime, they decided to vote against the troops. And the reason is telling. The wars in Iraq and Afghanistan are, no longer Bush’s wars, but Obama’s. They are no longer Republican affairs but Democratic ones. This shift could be seen on the Democratic side as well. For years, Congressional Democrats moaned that they wanted to end Bush’s wars but they just didn’t have the votes. Even when they won the 2006 elections and went into majority in both houses, they complained that they were stymied by a Republican President in the White House. Even then they always bought the Republican argument and ended up “supporting the troops”.

In 2009 with both houses and a Democratic President, however, their last excuse was gone. If the Democrats wished to end our involvement in the wars in Iraq and Afghanistan, they could. But as the initial votes on the supplemental showed, they didn’t. These had become their wars.

Still there was dissent. Enough House Democrats balked at the inclusion of the Lieberman-Graham amendment (51 had opposed the initial House version) that taken together with the wholesale defection of the Republicans left the bill in jeopardy of defeat. As a result, on June 11, 2009, Obama sent a letter to the Appropriation Committee Chairmen David Obey and Daniel Inouye requesting that the amendment be dropped while assuring them that “I will continue to take every legal and administrative remedy available to me to ensure the DoD detainee photographs are not released.” With this issue massaged, the only one remaining for Democrats was opposition to the wars themselves. Despite this and with a last minute sweetener in the form of a $1 billion cash for clunkers program, Obama succeeded in pealing off a sufficient number of supposedly progressive anti-war Representatives, like Jan Schakowsky (D-IL), to get the supplemental passed. As indicated above, only 32 House members and 2 Senators cast votes to end the wars. That’s 6% of the total membership of the two houses, and it goes to show how little real opposition there is to war in Washington.

The final cost of the supplemental came in at $105.9 billion. $77.2 billion went to the Pentagon. The IMF aid for poor countries was $4-5 billion and was to be financed by a sale of gold held by the US with the IMF. The $100 billion credit line was cut to $75 billion. This is the last piece of the story. While the smaller amount is earmarked for poor countries, the larger credit line (which was not scored in the bill, hence the $105.9 billion figure) will likely go to Eastern European countries and thereby limit the exposure of Western European banks which are heavily invested there. After the 1997 Asian banking crisis exacerbated by IMF policies (in which Timothy Geithner played a major role), most 3rd world and Asian countries will try as hard as they can to avoid going to the IMF. I can’t help thinking that AIG (p. 263) still has $234 billion outstanding in regulatory relief CDSs sold to Western European banks and that the IMF credit line may be a way of redirecting funds to these banks without the embarrassment of going through AIG, but perhaps that is just me.

In any case, the supplemental fight illustrated the hypocrisy of both parties, that the Republicans put the troops first and that the Democrats were serious about ending the wars.

51. The choice of Rahm Emanuel as his Chief of Staff should have sent a strong message to all concerned that Obama’s unity talk was precisely that, talk. Emanuel is another Clintonista. He is a hardball Chicago style politician, pro-Big Business and pro-Israel who revels in his reputation as a mean streetfighter. It is rather like Obama buying and setting at his front door a slightly crazy Doberman, and then inviting over the neighbors. Emanuel is a divisive figure whose political instincts are often wrong. But his selection does put to rest any serious notion that Obama was interested in a “government of rivals” with its sharp debates and exchange of different ideas. It is difficult to see how Emanuel’s influence will be anything but a net negative for Obama’s Presidency.

On October 1, 2010, Emanuel announced his resignation and his intention to run for mayor of Chicago.

52. The pro-Israel neocon Dennis Ross was Bill Clinton’s Middle East negotiator. That someone with Ross’ background could be even-handed or that Clinton thought he could be goes far in explaining why Clinton’s effort to achieve an Israeli-Palestinian peace settlement at the tail end of his Presidency failed in quite the way it did. On February 24, 2009, Obama named Ross as his Special Advisor for the Gulf and and Southwest Asia reporting to Hillary Clinton at State. This gave him considerable input to American policy toward Iran. It was always something of a scary proposition, especially with Israel pressing for military strikes against Iran. In his latest book, Ross had proposed how the US might go about doing this:

"Tougher policies - either militarily or meaningful containment - will be easier to sell internationally and domestically if we have diplomatically tried to resolve our differences with Iran in a serious and credible fashion.”

On June 15, 2009, Haaretz broke the story that Ross was moving from his Iran position to a job on the National Security Council in the White House related to the Middle East and Israeli-Palestinian peace process. Ross was a bad fit for the Iran job both because of his views and because it was unlikely that Iran would deal with him. It is unclear how much influence he will have in the White House. The less, the better.

53. A pair of Democratic follies took place in the filling of Barack Obama’s and Hillary Clinton’s Senate seats. In Illinois, on December 30, 2008, a soon to be impeached, convicted, and removed Democratic Governor Rod Blagojevich picked an aging megalomaniac Roland Burris to replace Obama. Blagojevich had been arrested on December 9, 2008 by the Feds for among others things trying to sell the Obama Senate seat to the highest bidder. His choice of Burris was his way of sticking it to all and sundry, including the people of Illinois. In New York, David Paterson who became Governor after the previous Governor Eliot Spitzer resigned because of a sex scandal was tasked with coming up with a Senate replacement for Hillary Clinton. Caroline Kennedy expressed interest in the job but then bizarrely ducked the public although she met with state political leaders. In the end, she refused to give any reason to the public why she get the seat or what she would do with it. Paterson then chose Kirsten Gillibrand, a Blue Dog Democrat, for reasons that remain even obscurer than those of Caroline Kennedy.

54. The Department of Commerce is a Cabinet-level post which has outlived its usefulness. It is a hodge-podge of some economic analysis units, the patent office, the weather service, and the census. It was also something of a cursed position for the incoming Obama Administration. Obama first offered it to New Mexico Governor Bill Richardson on December 3, 2008. Richardson had been a former campaign rival of Obama but came out strongly for Obama in March 2008 when such an endorsement meant something. He had a long résumé which qualified him for a higher post so Commerce must have been a letdown. But then a campaign contributions for contracts scandal broke in New Mexico, and Richardson withdrew on January 4, 2009.

On February 3, 2009, Obama in an incredibly dopey second choice named Senator Judd Gregg (R-NH) to the spot. Gregg was a Republican free trade, pro-Big Business, fiscal conservative who had once called for the elimination of the department. It is hard to imagine what either was thinking. Well, for Obama this was another bipartisan gesture. And because New Hampshire has a Democratic Governor, there may have been the hope that the Democrats could pick up another Senate seat. The problem here is that New Hampshire’s Democratic Governor said he would replace Gregg who was up for re-election in 2010 with a Republican.

As for Gregg who supported Bush’s budgetbusting deficits and profligacy, he didn’t like the fiscal stimulus Obama was preparing. Control of the 2010 census was also an issue. Since Republicans generally favor not funding the census adequately because this results in undercounts of the poor and minorities who tend to vote Democratic, this led the White House to consider moving the census more under its purview --where Gregg could do less damage. On February 12, 2009, Gregg withdrew his name from consideration.

Obama eventually did find someone, Gary Locke, the former Democratic Governor of Washington who was confirmed on March 26, 2009.

55. Obama reneged on his campaign promise to renegotiate NAFTA (the North American Trade Agreement). On February 24, 2008, campaigning in Lorain, Ohio, Obama said,

“One million jobs have been lost because of NAFTA, including nearly 50,000 jobs here in Ohio. And yet, 10 years after NAFTA passed, Sen. Clinton said it was good for America. Well, I don't think NAFTA has been good for America -- and I never have”

This quote was then used in an anti-Clinton campaign mailer. On February 26, 2008, in his debate with Hillary Clinton in Cleveland, Ohio, Obama said,

“In her campaign for Senate, she said that NAFTA, on balance, had been good for New York and good for America. I disagree with that. I think that it did not have the labor standards and environmental standards that were required in order to not just be good for Wall Street but also be good for Main Street. And if you travel through Youngstown and you travel through communities in my home state of Illinois, you will see entire cities that have been devastated as a consequence of trade agreements that were not adequately structured to make sure that U.S. workers had a fair deal.”

“I will make sure that we renegotiate, in the same way that Senator Clinton talked about. And I think actually Senator Clinton's answer on this one is right. I think we should use the hammer of a potential opt-out as leverage to ensure that we actually get labor and environmental standards that are enforced. And that is not what has been happening so far.”

and finally

“And as president, what I want to be is an advocate on behalf of workers.”

On February 27, 2008, Canadian CTV reports a leak from the conservative government of Stephen Harper that a senior member of Obama’s team met with Canadian officials and told them not to take Obama’s criticisms on NAFTA seriously. On February 29, 2008, CTV identifies the Obama camaign member as Austan Goolsbee, a free trade economist at the University of Chicago and at the time Obama’s senior economics adviser. Both the Canadian government and the Obama campaign issue denials. On March 3, 2008, the AP reports on a memo written by Joseph DeMora of the Canadian consulate in Chicago describing a meeting on February 8, 2008 between Georges Rioux the consul general and Goolsbee. Among the topics discussed was NAFTA. Per DeMora’s notes:

[Goolsbee] was frank in saying that the primary campaign has been necessarily domestically focused, particularly in the Midwest, and that much of the rhetoric that may be perceived to be protectionist is more reflective of political maneuvering than policy. On NAFTA, Goolsbee suggested that Obama is less about fundamentally changing the agreement and more in favour of strengthening/clarifying language on labour mobility and environment and trying to establish these as more ‘core’ principles of the agreement.

Fast forward to February 17, 2009. In Obama’s first trip to Canada as President, he continued to dance around the NAFTA issue, decrying protectionism and taking a legalistic approach to his NAFTA position.

[Q.] …even though you've given assurances international trade agreements will be respected -- how concerned should they [Canadians] be?

THE PRESIDENT: I don't think they should be too concerned. You know, I think that if you look at history one of the most important things during a worldwide recession of the sort that we're seeing now is that each country does not resort to "beggar thy neighbor" policies, protectionist policies, they can end up further contracting world trade


As I've said before, NAFTA, the basic framework of the agreement has environmental and labor protections as side agreements -- my argument has always been that we might as well incorporate them into the full agreement so that they're fully enforceable.

Obama, however, never made any efforts to do so. This is a far cry from his campaign threat to opt out of NAFTA if there were no new negotiations. This was confirmed on April 20, 2009, when Obama’s Trade Representative Ronald Kirk declared that there were no plans to reopen NAFTA to include labor and environmental standards in the main agreement. Looking back on Obama’s history with NAFTA, the DeMora memo had it right. Obama’s promise to renegotiate NAFTA was just campaign rhetoric, something to placate the rubes.

56. The scandal began on March 13, 2008 when conservative leaning ABCNews ran a “gotcha” story on Obama’s minister in Chicago, the Reverend Jeremiah Wright, with the inflammatory title:

Obama’s Pastor: God Damn America, U.S. to Blame for 9/11

For this masterpiece of investigative journalism, ABCNews didn’t actually talk to anyone. No context was given. No attempt was made to explain either the African American experience or the conventions of the sermon in the black church. No reference was made to the bombast and editorializing that goes on in white churches. They just bought tapes of Wright’s old sermons on sale through his church and edited together the bits they thought would be most shocking:

“The government gives them the drugs, builds bigger prisons, passes a three-strike law and then wants us to sing ‘God Bless America.’ No, no, no, God damn America, that’s in the Bible for killing innocent people,” he said in a 2003 sermon. “God damn America for treating our citizens as less than human. God damn America for as long as she acts like she is God and she is supreme.”

In addition to damning America, he told his congregation on the Sunday after Sept. 11, 2001 that the United States had brought on al Qaeda's attacks because of its own terrorism.

“We bombed Hiroshima, we bombed Nagasaki, and we nuked far more than the thousands in New York and the Pentagon, and we never batted an eye,” Rev. Wright said in a sermon on Sept. 16, 2001. “We have supported state terrorism against the Palestinians and black South Africans, and now we are indignant because the stuff we have done overseas is now brought right back to our own front yards. America's chickens are coming home to roost,” he told his congregation.

That Wright however imperfectly was talking about injustice in America and injustice by it practiced on others certainly escaped the network’s staff of tabloid writers and Bush apologists.

The Obama campaign which was much better organized than his Administration sprang into action and the next day on March 14, 2008, Obama published in the Huffington Post a quick reaction distancing himself from Wright,.

The pastor of my church, Rev. Jeremiah Wright, who recently preached his last sermon and is in the process of retiring, has touched off a firestorm over the last few days. He's drawn attention as the result of some inflammatory and appalling remarks he made about our country, our politics, and my political opponents.

Let me say at the outset that I vehemently disagree and strongly condemn the statements that have been the subject of this controversy. I categorically denounce any statement that disparages our great country or serves to divide us from our allies. I also believe that words that degrade individuals have no place in our public dialogue, whether it's on the campaign stump or in the pulpit. In sum, I reject outright the statements by Rev. Wright that are at issue.

Then on March 18, 2008, in Philadelphia, Obama followed up with a much more thoughtful speech on race in America, in which he condemned Wright’s message although not the messenger.

I can no more disown him than I can disown the black community. I can no more disown him than I can my white grandmother – a woman who helped raise me, a woman who sacrificed again and again for me, a woman who loves me as much as she loves anything in this world, but a woman who once confessed her fear of black men who passed by her on the street, and who on more than one occasion has uttered racial or ethnic stereotypes that made me cringe.

These people are a part of me. And they are a part of America, this country that I love.

But race is an issue that I believe this nation cannot afford to ignore right now. We would be making the same mistake that Reverend Wright made in his offending sermons about America – to simplify and stereotype and amplify the negative to the point that it distorts reality.

Even so, Obama did not explain where Wright’s anger and sense of injustice sprang from or why there was a place for both for anyone remotely aware of the previous 8 years of the Bush Administration. For Obama the Philadelphia speech was about easing fears of those who still had difficulties coming to terms with the idea of a President who was African American. With the speech given and well received, as far as Obama was concerned, the Jeremiah Wright episode was over.

However, the Reverend Wright had things still to say. Certainly he had ideas that were goofy. Some were decidedly unpopular, either in their substance or in their delivery. But others like those dealing with the history and mission of the black church were serious and well informed. On April 25, 2008, Bill Moyers interviewed him on PBS. Most of their talk was on the history of the black church. It was only at the end that the Obama controversy was touched on. And here Wright was surprisingly honest. The goal of the hit piece by ABCNews was about smearing Obama through guilt by association. Wright understood too that he and Obama had different roles and responsibilities. Obama was going to react as a politician. Wright was not a politician. He was a pastor. That was where his responsibility lay, and, his duty, given his personal history and that of African Americans in this country, was not to remain silent.

I think they wanted to communicate that I am- unpatriotic, that I am un-American, that I am filled with hate speech, that I have a cult at Trinity United Church of Christ. And, by the way, guess who goes to his church, hint, hint, hint? That's what they wanted to communicate.

It went down very simply. He's a politician, I'm a pastor. We speak to two different audiences. And he says what he has to say as a politician. I say what I have to say as a pastor.

Wright followed his appearance on Bill Moyers with an April 28, 2008 speech at the National Press Club. It was an ambush. Wright gave another talk on the history and role of the black church, but virtually every question he was asked dealt with some sensationalist remark that had come out of the recent campaign brouhaha: Louis Farrakhan, HIV as government conspiracy, Israel, damning America, Marines as Roman soldiers. And it was these that became the story. Wright was portrayed as a publicity seeking whacko, a loose cannon in the well ordered Obama campaign.

Obama decided to end it. Wright was a political liability, an embarrassment. The next day, on April 29, 2008, Obama broke with Wright.

I have known Reverend Wright for almost 20 years. The person I saw yesterday was not the person that I met 20 years ago. His comments were not only divisive and destructive, but I believe that they end up giving comfort to those who prey on hate and I believe that they do not portray accurately the perspective of the black church.

They certainly don't portray accurately my values and beliefs. And if Reverend Wright thinks that that's political posturing, as he put it, then he doesn't know me very well. And based on his remarks yesterday, well, I may not know him as well as I thought, either.


But when he states and then amplifies such ridiculous propositions as the U.S. government somehow being involved in AIDS, when he suggests that Minister Farrakhan somehow represents one of the greatest voices of the 20th and 21st century, when he equates the United States wartime efforts with terrorism, then there are no excuses. They offend me. They rightly offend all Americans. And they should be denounced. And that's what I'm doing very clearly and unequivocally here today.


And I want to be very clear that moving forward, Reverend Wright does not speak for me. He does not speak for our campaign. I cannot prevent him from continuing to make these outrageous remarks.

But what I do want him to be very clear about, as well as all of you and the American people, is that when I say I find these comments appalling, I mean it. It contradicts everything that I'm about and who I am.

There was nothing particularly courageous in what Obama did. He had a political problem and he dealt with it, in a fairly ruthless and effective fashion. In that, despite what Obama had said, Wright knew Obama the politician better than Obama knew Wright the pastor.

But the story does not end there. Obama had thrown an old friend and mentor to the curb for hateful and intolerant remarks. His rejection of pastors who engaged in such activities was not universal. As Wright had said, Obama is a politician. He agreed to meet on August 16, 2008 in an evangelical townhall meeting where he and John McCain would appear sequentially. The forum was sponsored by the anti-abortionist, anti-gay creationist minister Rick Warren. Somehow Obama failed to be appalled by Warren’s “outrageous” positions. In fact, he was so not offended by a pastor who gives “comfort to those who prey on hate” that he invited him to give the invocation at his Inaugural.

57. On June 22, 2009, a conservative federal district judge in habeas corpus proceedings ordered the government to release forthwith Abdulrahim Abdul Razak al Ginco, known as Janko. Janko, a Syrian, had stayed 5 days at a guesthouse used by al Qaeda and Taliban fighters and had attended an al Qaeda training camp for 18 days in early 2000. Janko maintained that both of these occurred against his will and that he then asked to leave. The government conceded that Janko was then taken and tortured by al Qaeda until he made a false confession of being an American spy at which point he was held for 18 months in the Sarpusa prison in Kandahar under horrific conditions. Like thousands of Northern Alliance prisoners (American allies) held at Sarpusa, he gained his freedom when the Taliban fell from power. In 2002, he was arrested by US forces in a case of mistaken identity but then held and transferred to Guantanamo until the present time on the basis Janko was Taliban, no matter how tangential or in the past that connection was.

Now I can understand why the incompetent thugs and buffoons of the last Administration would be fighting this case egregious as it is, but the real question here is why was the Obama Administration continuing that fight? Judge Leon had problems with this too. As he wrote,

By taking a position that defies common sense, the Government forces this Court to address an issue novel to these habeas proceedings: whether a prior relationship between a detainee and al Qaeda (or the Taliban) can be sufficiently vitiated by the passage of time, intervening events, or both, such that the detainee could no longer be considered to be “part of” either organization at the time he was taken into custody. The answer, of course, is yes.

At this point, Leon noted somewhat sarcastically that at least the government was not making the argument “Once a Taliban always a Taliban” although this looks exactly like the argument being made. It is also important to step back a moment and recall that in Afghan politics warlords and their fighters have shifted their allegiances back and forth between the government and the Taliban, and that current American and Afghan policy is precisely to effect such shifts of “Taliban” to the US side.

Leon then examines the government’s case and finds it has none. He concludes,

Accordingly, the Government has failed to establish by a preponderance of the evidence that Janko was lawfully detainable as an enemy combatant under the AUMF at the time he was taken into custody, and the Court must, and will, GRANT his petition for a writ of habeas corpus

I asked why Obama and Holder would defend such a case. The answer is twofold. First, the legal basis for Bush’s, now Obama’s, war on terror is this post-9/11 AUMF and they want no diminution of its authority. Second and more specifically, they want no judicial restraint on the authority, asserted by the Bush Administration through it, for indefinite detention.

58. On January 20, 2009, the day of the Inaugural, the Obama Administration took over the White House’s internet site. It was supposed to be an example of the transparency in government Obama espoused on the campaign trail. CNN gushed,

Almost at the instant Obama was sworn in, relaunched with a redesign to signal a new era in government. Gone was the staid site of the Bush White House, replaced by a dynamic new site reflective of his tech-savvy successor.

The new design includes more interactive features, a prominent photo gallery displayed across the top of the site, the ability to get e-mail updates, and a White House blog. The site’s “briefing room” also includes places for a weekly video address, slide shows, proclamations, and executive orders as well as news about nominations and appointments.

The New York Times more circumspectly and presciently observed,

Like so much else on this hopeful day, there is the lingering question about how many of the Web site’s lofty aspirations will survive the rough work of governing in a complex world and cynical capital

The Obama White House website which should be an informational resource for citizens is, in fact, an uninformative mess. Its homepage has some pictures, a couple of “news” events of the day with video from its blog, some links to “featured” pieces of legislation and programs. That’s it. If you actually look at the content behind these links there is almost none. They are generally Obama’s generic remarks on whatever. On the day, June 26, 2009, the House passed a first time cap-and-trade system for greenhouse gases, I typed in “cap-and-trade” into the White House search engine which first took me to a query for my email address. When I re-submitted my search, there were no results. I typed in “cap and trade” and the first “featured” result was to Judge Sonia Sotomayor in cap and gown, in the 8th grade. In the context of cap-and-trade, there were only two highly tangential references. I clicked on the program button for the Open Government Initiative which took me to more opening remarks and, a database of government databases with a clumsy interface and primitive search function, --and for my search for cap-and-trade nowhere. For fun, I clicked on the other program button “Recovery” which simply took me back to the White House homepage. At the bottom of the homepage there are half a dozen subheadings only two of which even look like they might contain any usable information: The Briefing Room and Issues. Issues has short, shallow statements on a variety of subjects. The Briefing Room has, as CNN noted, most of the site’s content: videos, speeches, official statements, Presidential actions, the blog, etc., but inexplicably and unpardonably none of these has an archive dated by month and year. The first ten most recent links are listed and after that you are on your own to wade blindly into older items. The poor search function and lack of archive make even this part of the site virtually worthless.

Nor does the site seem to have any fact sheets anywhere. These can be useful as on the subject of cap-and-trade to compare present assertions and policy positions with past and, later, future ones. Finally, candidate Obama pledged,

We will publish all non-emergency legislation to the Web site for five days, and allow the public to review and comment before the President signs it.

This clearly never happened. The White House website should be both accessible and an essential resource. The Obama White House site is neither.

As of November 2010, the site has archiving by month and year. Individual items are not always dated. The frontpage has a link to signed, pending, and vetoed legislation. Changes to pending legislation still do not appear to be updated in a timely fashion. As of this writing, it contains items whose status should have been changed two weeks to a month ago. The site has had some fact sheets, but the links to some of these disappear after a while. The links should be permanent for future reference. It also appears that the site does not record all of Obama's public interactions, and it should. I could not find an October 27, 2010 meeting with bloggers although a transcript of the meeting appears on the web. The site boasts 800,000 records released of White House visitor logs. What it doesn't say is that officials with business at the White House are buried in a sea of tourists. This is hardly helpful. The site also lists 9 ethics waivers for White House personnel. The waivers are quite narrow. That only 9 White House staff have highly limited potential conflicts of interest is quite simply unbelievable.

59. The Iranians held a Presidential election on June 12, 2009. It was rigged even by Iranian standards (where candidates are screened by a religious council) and the incumbent Mahmoud Ahmadinejad won in a landslide. The opposition candidate Mir-Hossein Mousavi did not accept the result and street demonstrations followed, and continued despite the Iranian supreme religious leader Khamenei throwing his support behind Ahmadinejad. Ahmadinejad is primarily known in the US for his anti-Western, anti-Israeli rhetoric, but domestically he is fairly unpopular due to his bumbling and ineffective economic policies. His vote rigging further discredited him and the secular arm of Iranian government. Khamenei backing him also served to discredit the up to now the controlling religious side of the government. From an American standpoint, the result could not have been better and came about without any American involvement. In fact, any such foreign interference would have been used by the hardline Ahmadinejad-Khamenei faction to discredit the opposition, something they were already claiming without much success via trumped up “confessions” on the part of demonstrators.

Now the Obama Administration which had been taking a smart low-key approach to the election is helping the hardline camp in Iran. The USAID, continuing a program begun under Bush, is providing $20 million in grants to “promote democracy, human rights, and the rule of law in Iran”. This bit of idiocy plays right into Ahmadinejad’s hands and validates his charge of foreign interference. You have to wonder what the Obama Administration was thinking although obviously it wasn’t.

60. James Hansen, the well-known climatologist who had run-ins with the Bush Administration, said a few years ago that we had 10 years, not to reverse global warming --we can’t it is already here-- but to mitigate its worst impacts. More recently, he has reduced his time to take action to 4 years. The relation of concentration of greenhouse gases (GHG) in the atmosphere to effects on global climate change is not linear. So what Hansen is talking about is a tipping point. Up to that tipping point small reductions in GHG levels can keep large effects from happening. Once exceeded even major efforts will have little or no effect on keeping them from occurring. The odds are that governments, including ours, will not act in time or choose approaches that are insufficient to the gravity of the problem.

Two common justifications for not acting are cost and the need for a global response. For the first, while there will be costs the price of not acting or doing too little will be much higher. As for the second, we can hardly ask the rest of the world to follow us if we are unwilling to lead.

One simple, direct, and effective means of dealing with carbon loading is to tax carbon producers like coal fired electrical plants and oil companies. The cost impacts of such a tax could be mitigated by rebates from the government to consumers and limitations on industry’s ability to pass along costs to customers.

It is significant that Obama has never considered a carbon tax. Instead he has preferred the less effective more free market solution of cap-and-trade. But even here his position has weakened over time.

Here are some of the major policy ideas of candidate Obama.

1. Reduce carbon emissions by 80% by 2050

2. Cap and trade with auction of 100% of allowances

“A 100 percent auction ensures that all large corporate polluters pay for every ton of emissions they release, rather than giving these emission rights away for free to coal and oil companies.”

3. Invest $150 billion over 10 years in energy technology

4. Reduce carbon in fuel by 10% by 2020

5. 25% of electricity from renewables by 2025

6. New federal buildings to be zero-emission by 2025; 40% more efficient within 5 years

7. All new buildings to be zero-emission by 2030

8. Green Job Corps

9. Digital Smart Grid

10. Double fuel economy for cars within 18 years

As President in his February budget proposal he retained most of these. He refined greenhouse gas reduction to about 14% below 2005 levels by 2020, and about 83 percent below 2005 levels by 2050. The 100% auction of cap-and-trade permits was expected to generate a $150 billion for research and $65 billion a year for rebates to consumers.

On March 31, 2009, Representatives Henry Waxman (D-CA), chair of the House Energy and Commerce Committee, and Edward Markey (D-MA), chair of the House Select Committee on Energy Independence and Global Warming, unveiled a draft climate change proposal based on many of the points of the Obama plan (which they dubbed the American Clean Energy and Security Act or ACES). There were some modifications in the timing of GHG reduction but not the overall goal:

3% below 2005 levels in 2012, 20% below 2005 levels in 2020, 42% below 2005 levels in 2030, and 83% below 2005 levels in 2050

The 20% decrease by 2020 was higher than Obama’s initial figure of 14%. The draft ducked the makeup of the cap-and-trade system entirely. By mid-May, Waxman and Markey had split the difference and agreed to a 17% reduction by 2020. Their bill also created a 2 billion ton offset market for carbon split half and half between domestic and foreign sources. This would allow companies to invest in carbon reducing projects abroad and have 5 tons of foreign reduction count for 4 tons against their domestic carbon saving requirements. The EPA estimates that the cost of the bill woul be $98-$140 a year for an average household.

The ACES bill differs markedly from the Obama plan in that 85% of carbon allowances under cap-and-trade would be given away initially with the government selling only 15%. 30% of the free allowances would go to local electric companies to fund customer rebates with a 2026-2030 phase out, 15% would go to heavy industrial producers until 2025, 10% to state governments for conservation and renewables, 9% to natural gas distributors with a similar phase out, etc. Overtime the number of free allowances would decrease. Only 1.5% (1/10 of the 15%) would go to new technologies.

A lot of thought went into this bill. So what is wrong with it? Quite simply it is too little too late to avoid the tipping point of which Hansen spoke. We are coming to the end of a period where immediate action would keep global effects in the relatively mild range. Even with the Obama-Waxman-Markey plan, we will face climate change effects that will be moderate to severe. And there are reasons to doubt the political stamina for action. The first reductions do not take effect until 2012 and are 3%. This will be at the end of Obama’s first term. The 83% reduction of 2050 is 9 1/2 Presidential terms away or several political eternities. Could anyone in 1999 have predicted the disaster that was Bush and where the country would be in 2009?

ACES passed the House on June 26, 2009 with a paper thin margin 219-212. Obama applauded the House bill although it differed from his original program. How he did it is problematic. He described ACES as a jobs bill, a clean energy act that will reduce our dependence on foreign oil, etc. He mentioned only fleetingly the grave danger that climate change poses to us and our descendants. The fate of the bill in the Senate is anybody’s guess but, given past history, Obama could compromise it even further --because Obama does want a bill, something that he can take with him to the December world climate conference in Copenhagen and claim a leadership role based upon it, whether this is deserved or not.

There are also concerns about the use of offsets. These will start out at about 15% of the total and by 2050 could increase to 33% with most of the carbon reductions coming from abroad. Although there will be an approval board for offset projects, it isn’t clear that projected carbon savings will equal what is really saved. It is also important to note that carbon allowances are financial instruments and a market for them is an integral part of the plan. In light of the unreformed nature of Wall Street, gaming of them is almost a certainty. This gets to the heart of the problem. Rather than dealing directly with industry (a carbon tax, limitations), the Congress and Obama are using industry as their intermediary to reform itself and deal with consumers. They are trusting to the genius of the marketplace, a marketplace that recent events have shown to be both rigged and moronically self-destructive.

Both the ACES bill in the House and a similar measure, with similar flaws, Kerry-Boxer, in the Senate were put on the back burner to make way for the 2009 healthcare debate. One result of this delay is that the US will have no program in hand to bring to the December 2009 UN conference on climate change in Copenhagen. This led on November 15, 2009 during an Obama trip to a conference of Asian-Pacific nations to a declaration by them that no binding commitments would be made in Copenhagen. Keep in mind that this represents a delay of more than 2 years. At the Bali conference in December 2007, participants realized that Bush would do nothing in the remainder of his term. Accordingly, they put together a 2 year process, one year to wait out Bush and one year to get down to real negotiation with his successor, all to culminate in the Copenhagen conference. Global depression and lack of leadership by both Bush and Obama have now pushed the timeline for an agreement in all likelihood at least another year into the future. Climate change is, however, a physical process oblivious to the machinations and dithering of political elites. What this means is that we and our planet’s political leaderships have failed the greatest challenge we have faced as a species since the last ice age. The question is no longer can we avoid severe climate impacts but rather how severe those climate impacts will be.

61. On June 29, 2009, in Ricci v. DeStefano, the Supreme Court in another 5-4 decision with Kennedy writing the majority opinion and backed by the Court’s radical conservatives ruled that, under Title VII of the 1964 Civil Rights Act, New Haven, Connecticut could not throw out the results of a lieutenant and captain exam for firefighters because whites had done substantially better on it than African Americans and Hispanics. The city of New Haven had argued that keeping the test results would open it up to litigation under the “disparate impacts” principle of Title VII. That is whether the test was meant to be discriminatory or not, the impact, or effect, of the test was to create a “whiter” and less racially representative fire department. White fire fighters and one Hispanic sued citing a different Title VII principle “disparate treatment”. They argued that it was a legitimate test. They had done better on it, and so they should receive the promotions. Any other resolution would mean they were not being treated the same as their minority colleagues. The district and appeals courts agreed with the city’s argument but the Supreme Court reversed.

Kennedy reasoned that the city of New Haven had not intended to discriminate but that a discriminatory result was allowable under Title VII if it was “job related for the position in question and consistent with business necessity.” Kennedy goes on to say,

We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.

The key word here is “liability”. It was likely that New Haven was going to be sued by someone over this test: minorities if the results were kept, whites if they were thrown out, but Kennedy held the test was fair and job related, and therefore New Haven had no liability for its results. Consequently, the disparate impact on minorities did not hold. Rather New Haven had treated the white firefighters in a disparate manner based solely on their race, and this was prohibited by Title VII. Kennedy even helpfully points out that his Supreme Court decision can be used to fight a “disparate impacts” lawsuit filed by minority test takers:

If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate treatment liability.

Now this almost might sound plausible, except that, as Justice Ginsburg notes in her dissent, it completely turns history and Title VII on its head. The 1964 Civil Rights Act and Title VII were enacted because of the prevalence of racial discrimination both in government and private enterprise. This discrimination could be seen both in the disparate impacts and treatment minorities suffered under. As a result of the Act, the most obvious and overt regulations and practices that intentionally discriminated against minorities were re-written or eliminated. This still left the enduring impact of previous discrimination in place. For these, a variety of remedial actions, including affirmative action, desegregation in school and housing, etc., were undertaken to greater or lesser effect.

From almost the beginning, however, conservatives have adopted the language of the civil rights movement and the Act to argue against any form of remediation. Their argument, disingenuous as it is, is that discrimination was outlawed and from here on out the law should be color-blind. Now this would be a reasonable position to take if education, income levels, and other measures were comparable between the majority and minorities, but even in 2009 vast discrepancies remain. One has only to look at the incarceration rate of young black males, for example, to see that our society is far from color-blind. So the residue of discrimination does linger, despite an African American in the White House.

This takes us back to the Ricci case. In the beginning, disparate impacts and treatment were two tests in Title VII which were meant to work together to end discrimination against minorities. What Kennedy and the radical conservatives have done is to make the disparate treatment argument available to the majority and to set the two principles of impacts and treatment against each other, indeed to make disparate treatment the dominant of the two. Further, you have the bizarre situation where entities which seek to be proactive are put in the position of proving that they acted intentionally to create a discriminatory situation. Well if their action was intentional how likely is it that they will move to incuplate themselves? What SCOTUS has done is effectively bar entities, such as local governments, from voluntarily moving to redress racial imbalances which are the product of the residuum of racial discrimination in the larger society. Also if minority firefighters, or any minority group in a similar action, seek to contest a discriminatory outcome, the burden of proof is on them to show that this discrimination would not have occurred except as a specific and intentional act directed against them.

This is all part of an effort by the Court’s radical conservatives to roll back civil rights laws, in general, and Title VII, in particular. We saw this most recently in the June 18, 2009, 5-4 decision in Gross v. FBL, where the ostensible target was the Age Discrimination in Employment law (ADEA) but most of the Court’s ire was directed against the Price Waterhouse case (1989) which had held under Title VII that once discrimination was shown to be involved in a job action the burden of proof shifted from the employee to the employer to prove that the job action would have been taken regardless of the discriminatory component. In Ricci, I see a partial reversal of Price Waterhouse. The burden of proof in a disparate impacts case, the main vehicle for minorities to contest discrimination as it presents itself today, will remain with them throughout.

As for the Court’s wider agenda, this can be seen in the June 28, 2007, 5-4 decision, in Parents Involved in Community Schools v. Seattle School Dist. No. 1 where voluntary programs in Seattle, Washington and Louisville, Kentucky to avoid racial segregation in schools were overturned on the basis that racial classification in school selection violated the equal protection 14th Amendment rights of white children.

With Kennedy onboard, we should expect to see more anti-civil rights decisions and more attacks on Title VII in the future.

In February 2009, the US (with Acting Solicitor General Edwin Kneedler a last minute Bush appointment January 16, 2009 the lead name) filed a brief in this case calling for the summary judgment of the district court to be vacated and that the case be remanded to that court for further consideration of the petitioners’ claim of discriminatory treatment. While the Supreme Court decision went considerably further than the government’s amicus brief, Kennedy appears to have drawn on its ideas in his opinion. The case was argued on April 22, 2009 after the confirmations of Holder and Kagan. The Obama Administration neither modified nor withdrew the original brief.

62. On April 14, 2009, Obama nominated Stephen Preston to replace the CIA’s retiring acting general counsel John Rizzo. Rizzo had been heavily involved in seeking to give legal cover to the CIA’s torture and rendition programs. As this story from the LA Times (on Rizzo but with this interesting aside on Preston notes),

Repeatedly pressed on whether waterboarding constituted torture, Preston replied, "I have not reached that conclusion."

Later in his written responses, he admitted that waterboarding because Obama and Holder said it was.

Q. Both the Attorney General and the President have indicated that waterboarding is torture. Is this your professional opinion as well?

A: As I testified at the hearing, I support the President’s and the Attorney General’s conclusion that waterboarding is torture, and the President’s decision that the United States will not engage in the practice going forward. I have not made an independent legal judgment with respect to past conduct under the federal torture statute, but I have no reason to disagree with the conclusion reached by the President and the Attorney General.

Tellingly though Preston leaves himself an out. If waterboarding is torture and the CIA waterboarded, then there is a prima facie case that there are people who worked for the CIA who are guilty of torture. Preston’s out is that he says he has made no “independent legal judgment” that this is the case. And I think it is clear that it will be a snowy day in hell before he makes such a judgment or that judgment accepts that CIA operatives and contractors violated the torture statute. Despite this, Preston was confirmed by a voice vote on June 25, 2009. It appears we have exchanged one torture apologist for another.

63. On April 17, 2009, Obama nominated Robert Litt as general counsel to the Director of National Intelligence. The DNI is the top office in US intelligence. But like Preston do not expect Litt to push for investigation of torture and other crimes under Bush. As he said just after the election on November 13, 2008,

It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries,” Litt said. “It would really spend a lot of the bipartisan capital Obama managed to build up.”

As we have seen, Obama’s “bipartisan capital” has gained him and the country so much. Litt was also confirmed by voice vote on June 25, 2009.

64. The CIA has repeatedly delayed release, persuant to a suit filed by the ACLU under FOIA, of a less redacted version of a May 7, 2004 CIA Inspector General’s report which probed the CIA’s torture programs and their effectiveness. The CIA had originally released a heavily redacted copy of the report to the ACLU on May 27, 2008. The ACLU returned to court. On May 28, 2009, the CIA submitted a schedule to the federal district court of Alvin Hellerstein in New York and promised a June 19, 2009 release. With the ACLU’s agreement this was pushed back first to June 26, 2009 and then July 1, 2009. In response to an ACLU letter to the court on July 1, 2009 after the CIA had failed to produce the promised report for the third time, the Obama Administration argued that it could not now release the CIA IG report until August 31, 2009 when according to its fairly dubious schedule it is supposed to release 318 other documents requested by the ACLU. The government’s rationale is that because the IG report touches on these other documents they must all be reviewed and released together.

Now you have to remember that this is only about a 200 page report. It is 5 years old and covers matters going back 7 years. The original timetable for release which the government keeps walking away from is its own. The government’s most recent argument is a transparent stalling tactic. The 318 documents in question probably fall into a handful of categories. After a review of one or two of these, a protocol could be established for the whole category. The number of problematic documents is likely very small. The government has had both the time and the resources to deal with these. As with the torture photos, the Obama Administration is fighting to delay or prevent disclosure of information about the Bush Administration’s criminality. The most obvious reason for stonewalling is to avoid public pressure, both domestic and international, for investigation and prosecution of those Bush officials who engaged in illegal activities. Another is that Obama, those in his Administration, and Democrats in Congress don’t disagree with Bush’s concept of the unilateral (“unitary”) Presidency, that a President and those whom he appoints can break the law and not be punished for it.

On July 15, 2009, despite the government’s history of delay, judge Hellerstein gave it until August 24, 2009 to release a redacted declassified version of the CIA Inspector General’s report.

65. Well this changes everything. Goldman Sachs the large predatory investment house often acts and is treated as if the US government is one of its subsidiaries. Hank Paulson, Bush’s last Treasury Secretary had been CEO and Chairman of the board there. He named one of his acolytes Neel Kashkari to run the TARP. He selected a Goldman board member Edward Liddy to run AIG when the government took that company over. The Chairman of the New York Fed was until May 7, 2009, Stephen Friedman who had been with Goldman since 1966. He resigned because he made $3 million buying Goldman stock on the insider knowledge his position at the Fed gave him. He remains on Goldman’s board where curiously his bio omits his time at the New York Fed. On January 27, 2009, William Dudley became President of the New York Fed taking over Timothy Geithner’s old job. He had been at Goldman for 21 years, its chief economist for 10. In 2007, Geithner hired him to head the Fed’s markets division and from there he moved on to the top spot. Meanwhile Geithner hired Mark Patterson as his chief of staff. Patterson was a chief lobbyist of Goldman until April 11, 2008. His hiring by Geithner violated Obama’s pledge to prohibit former lobbyists in his Administration from working in areas on which they had lobbied in the previous 2 years.

On October 16, 2009, the SEC announced that it was hiring a 29 year old Goldman vice president Adam Storch to head its enforcement division. You really can’t make this stuff up. This is not only another illustration of Goldman’s penetration of government but further evidence of current SEC chairperson Mary Schapiro’s regulatory capture by the financial industry and why she was such a terrible choice for the job.

66. On July 1, 2009, the Obama Justice Department filed a motion for summary judgment to keep secret former Vice President Dick Cheney’s interview in the Valerie Plame, outing of an undercover CIA agent, case. The interview was being sought by Citizens for Responsibility and Ethics in Washington (CREW). The government argued that prosecutors often promise witnesses confidentiality although the prosecutor in the Plame case Patrick Fitzgerald had already stated that no such promise had been made in Cheney’s case. The government also argued that releasing the Cheney interview would cause government officials to be reluctant to cooperate in criminal investigations, which is really a damning judgment on our officials if you think about it. The government went on that officials might have to be subpoenaed and that this could damage investigations overlooking the fact that this has happened in the past without this result. This is just another example of the Obama Administration defending the excesses of the Bush Presidency in hopes that their own excesses will be defended by future Presidents. In such a schema, there is no room for accountability and the rule of law.

It recalls a pre-election exchange between Bill Moyers and William Bacevich:

BILL MOYERS: Do you expect either John McCain or Barack Obama to rein in the "imperial presidency?"

ANDREW BACEVICH: No. I mean, people run for the presidency in order to become imperial presidents. The people who are advising these candidates, the people who aspire to be the next national security advisor, the next secretary of defense, these are people who yearn to exercise those kinds of great powers.

On October 30, 2009, having lost its suit, the DOJ turned over to CREW notes of the Cheney interview.

67. On December 2, 2008, the Bush Administration pushed through a last minute regulatory rule that allowed mining using mountaintop removal and dumping of debris in surrounding valleys. Reacting to this, in March 2009, the Obama Administration announced a review of mining permits which could have stopped this practice. Instead the Administration has walked back its opposition to mountaintop removal approving 42 of 48 permits. More than 100 other permits were under review as of June 2009. Except for some marginally increased scrutiny, the Obama Administration has to all intents and purposes become a promoter of this environmentally devastating form of mining.

On September 11, 2009, the EPA announced that all 79 pending permits for mountaintop removal in 4 Appalachian states, submitted by the Army Corps of Engineers, would likely violate provisions of the Clean Water Act. This begins a 60 day extended review process.

68. On July 8, 2009, the Obama Administration threatened a veto of the Intelligence Authorization bill if it contained a provision that would require briefing the full Intelligence committees on covert operations rather than the Gang of 8. On the same day, in response to Congressional queries, CIA Director Leon Panetta in closed testimony admitted that the CIA had not informed Congress about significant intelligence activities from 2001 through June 2009. So I guess the key issue here is whether the Obama Administration wants to lie to 8 or 40 members of Congress. It also leaves unaddressed how Congress is supposed to exercise oversight of the intelligence community if even most of the members of its own intelligence committees don’t know what is going on.

69. As the economy continues to tank, Obama has decided to stick with the recommendations of his consistently wrong economics team. He will not consider a second stimulus at this time and has instead taken a wait and see attitude to his too small, poorly designed, poorly directed, and poorly executed first stimulus. On July 11, 2009 in his weekly address Obama said:

“Others believed that the recovery plan should have been even larger, and are already calling for a second recovery plan.

But, as I made clear at the time it was passed, the Recovery Act was not designed to work in four months – it was designed to work over two years. We also knew that it would take some time for the money to get out the door, because we are committed to spending it in a way that is effective and transparent. Crucially, this is a plan that will also accelerate greatly throughout the summer and the fall.”

The following day July 12, 2009, Treasury Secretary Geithner reiterated this view re a second stimulus:

“I don't think that’s a judgment we need to make now, can't really make it now prudently, responsibly”

Actually if Obama and Geithner ran the numbers, they would know that this is precisely the prudent, responsible time to change course. This is all very reminiscent of the Bush Administration where ideology trumped reality and persistence in a failed policy was lauded as an act of will.

70. The Obama Administration has continued efforts to prosecute Mohammed Jawad an Afghani accused of throwing a grenade which injured 2 US soldiers and their translator in Kabul in 2002. This is another case that crosses over from the Bush Administration. It is a particularly egregious miscarriage of justice which the Obama Administration has done nothing to rectify. The facts are these. Jawad whose precise age is unknown although he may have been as young as 12 at the time of the attack was arrested and tortured by Afghan authorities and then turned over to the Americans. He was transferred to Guantanamo where he was tortured again. As a result of his torture, he confessed to the attack and was eventually put on trial before a military commission in Guantanamo. And then the government’s case fell apart.

On August 14, 2008, Brigadier General Thomas Hartmann, the supposedly neutral adviser to the Convening Authority for the Military Commissions process in Guantanamo was barred from Jawad’s trial for bias in favor of the prosecution by trial judge Colonel Stephen Henley. Also on August 14, 2008, Lieutenant Colonel Diane Zierhoffer, a military psychologist supervising Jawad’s interrogation at Guantanamo, invoked her article 31 rights. Article 31 is the military version of the 5th Amendment protection against self-incrimination. It was Zierhoffer who recommended the techniques, such as prolonged periods of extreme isolation, sleep deprivation (via frequent flier with 112 cell changes in one 13 day period) that drove Jawad to attempt suicide in 2003. And from the beginning, the government knew that aside from his confession extracted under torture, Jawad was almost certainly innocent. On September 24, 2008, the military’s own prosecutor Lieutenant Colonel Darrel Vandeveld quit the case. He cited both a lack of due process and the government’s suppression of exculpatory evidence. Two other men had confessed to the attack and it was likely that Jawad had been drugged at the time of the attack and so incapable of participating in it. On November 19, 2008, Henley ruled to suppress Jawad’s confession.

From there the action moved to a habeas petition in the DC federal district court of judge Ellen Huvelle. On July 16, 2009, Judge Huvelle ruled similarly to suppress all statements made by Jawad including his confession. The government did not oppose the motion to suppress. Huvelle then pointed out to the government lawyers that they had no actual witness who saw Jawad engage in the attack and with no witness and no confession the government case could not go forward. As she said, all the government had to justify holding a young man for 7 years was “people who say that they didn't see what they said they saw.” Huvelle was relentless in her description of the government’s case, calling it “gutted,” “riddled with holes” and “in shambles” and declaring that the government had known this to be so for years. She also decided to move swiftly to a merits hearing on August 5, 2009. It was clear she did not trust the government or its intentions. As she said, “I'm not going to wait to grant a habeas until you gear up a military commission. That's what I'm afraid of. Let him out. Send him back to Afghanistan” (where Afghani courts could try him if they so chose). Judge Huvelle gave the government until July 29, 2009 to inform the court what it was going to do about the Jawad case.

Again it is so important to remember that US federal courts are very sympathetic to the government on national security cases. Their bar for evidence is extremely low. So for a federal district judge to use these terms with federal prosecutors and to bring them up short as Judge Huvelle has done is a real indication of what a total and absolute botch the Jawad case has been. As she said toward the end of the hearing, “I think you'd better go consult real quick with the powers to be[sic], because this is a case that's been screaming to everybody for years.”

On July 24, 2009, the government filed papers with Judge Huvelle in the matter of Jawad's habeas petition regarding his Guantanamo detention stating that Jawad would no longer be considered a detainee but that he would continue to be held for investigation and to face possible charges in a civilian US court. The government says it had, miraculously it would seem, discovered eyewitnesses since its last filing on June 1, 2009 concerning the evidence it held against Jawad. The odds that the government is being honest here are vanishingly small. That it did not produce this evidence for the first 7 years of Jawad’s detention, during his various hearings in Guantanamo or his military commission trial there, but suddenly finds, as a federal judge is about to order his return to Afghanistan, “new” evidence does not so much strain as torture credulity. The government is told after 7 years it has no case and in a week it says it has a new one.

The Obama Administration and Attorney General Holder were supposed to restore credibility to the Justice Department. Their handling, or rather mishandling, of the Jawad case does the reverse. This was never about the law. From Jawad’s indefinite detention in what the government hoped was a legal blackhole, the disregard of his status as a minor, his torture, the sham Combatant Status Review Tribunals (CSRTs), the hopelessly flawed military commission, and now this habeas action, the government has sought to ignore or twist the law for policy and political purposes.

And this continues. The Obama Administration is afraid to return Jawad to Afghanistan because of likely criticism from Republicans, even though Bush released hundreds of these supposedly “worst of the worst” during his time in office. They are perpetuating this dreadful case not because they think Jawad is guilty but because they find it politically embarrassing to release him. They don't want to be blamed for releasing someone accused of trying to kill American troops, not someone who did, mind you, but someone who was simply accused of doing so based on torture and evidence that was beyond flimsy. They are demonstrating that the Justice Department remains unchanged and as much a creature of political decisions and a stranger to the rule of law as ever. We can only hope that at some point the courts say no more. And after 7 years that point should be now.

On July 30, 2009, Judge Huvelle granted Jawad his habeas petition and ordered his release. The government asked for and got a 22 day delay to August 21, 2009 to comply. Congress in one of its more jingoistic moments put a 15 day notification on any detainee transfers and the government requested a week on top of this to prepare the notification. It is not clear if the government will use the delay to go forward with a case in the federal courts against Jawad.

On August 24, 2009, Jawad was returned to Kabul, Afghanistan. One of Jawad’s appointed attorneys Marine Major Eric Montalvo traveled to Afghanistan at the expense of the ACLU and Human Rights Watch because the military refused to allow him to be there to witness the release of his client or even inform him when his client would be released. It was a good thing he was there. Jawad was to be sent directly to prison. Montalvo was able to intercede on his client’s behalf with Afghanistan’s Attorney General. After a meeting between Afghanistan’s President Hamid Karzai and Jawad, Jawad was released to the care of his uncle. This was a shameful episode in our nation’s jurisprudence and the military turning Jawad over to Afghan authorities with only the clothes he was wearing acted disgracefully until the end.

71. No Child Left Behind was a disaster from the Bush years. It sought to measure school performance by how well students did on standardized tests. It was a one size fits all approach that ignored that school populations are not standardized but quite diverse. It was capricious and arbitrary penalizing even good schools. It was based on data that was later shown to have been doctored. But on a deeper level, it was always clear that measuring real education, how we understand the world around us, is just not something that can be captured on a standardized test. It was hoped that NCLB would be done away with when Obama came into office. But this hope was quickly challenged by Obama’s choice of charter school supporter Arne Duncan as Secretary of Education. Obama now intends to use $4.3 billion in stimulus money to pressure states into encouraging more charter schools (despite their lack of success in improving education) and to use standardized test scores to judge teacher performance. Both of these ideas are dubious and were favored by Bush. So here too rather than breaking with a failed Bush policy, Obama is seeking to extend it.

72. On August 24, 2009, Eric Holder announced that Assistant USA John Durham who was in charge of the investigation of the destruction of the torture tapes would conduct a preliminary review into detainee abuses overseas. Not only were detainees tortured but up to 100 died as a result. It is clear that serious violation of laws and treaty obligations occurred. The Obama Administration has from the beginning been reluctant to investigate criminal wrongdoing during the Bush Presidency. With regard to torture, Obama said even before his inauguration in a January 14, 2009 interview with Geroge Stephanopoulos that:

what we have to focus on is getting things right in the future, as opposed looking at what we got wrong in the past

Holder repeated this view in his statement:

I share the President's conviction that as a nation, we must, to the extent possible, look forward and not backward when it comes to issues such as these.

He also made it made it clear that this “preliminary review” would be narrow in scope

the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel [i.e. the infamous Yoo and Bybee torture memos] regarding the interrogation of detainees

Such a formulation guarantees that the authors of the memos, Bush, Cheney, and other high ranking Bush officials who created the country’s torture policies, as well as those who tortured “within the scope” of the torture memos would not face any legal jeopardy. Only those low level torturers who exceeded the torture guidelines would face investigation and prosecution. The legal status of those who tortured exceeding the guidelines but at the direction of the White House is unclear. This is essentially a recipe for a whitewash where, as happened at Abu Ghraib, the responsibility for torture that originated in White House and the Pentagon policies was laid off on a few low level bad apples.

73. On August 25, 2009, Barack Obama announced that he would re-appoint Ben Bernanke to another term as Chairman of the Fed. Bernanke is supposed to be a scholar of the Great Depression. He takes a monetarist view of it which misses much else that contributed to its occurrence and severity. While money supply did play a role, it was not simply a question of supply but then as now where the money went that was critical.

Bernanke’s is best known for backing Alan Greenspan’s easy credit policies that fueled the $8 trillion housing bubble. Bernanke managed not to see this bubble until it burst on August 9, 2007. After a brief intervention led by foreign central banks, he then did almost nothing to forestall its effects believing that the fallout was manageable and that markets would be able to handle it on their own with only occasional, limited involvement of the Fed. On the weekend of September 13-14, 2008, he worked with Henry Paulson, former CEO and chairman of the board of Goldman, and Lloyd Blankfein, the current CEO of Goldman, to save insurance giant AIG. Goldman had a heavy exposure to AIG, and its bailout essentially saved Goldman. Bernanke also forced Bank of America to buy the investment bank Merrill Lynch under dubious conditions which Bernanke later lied about.

But Bernanke’s epic fail came when he and Paulson decided to let Lehman go into uncontrolled bankruptcy. Neither he nor Paulson thought to ask the simplest most basic question before proceeding with this plan: who were Lehman’s bondholders and how would a Lehman collapse affect them? As it turned out, Lehman’s creditors included money markets, the vast engines of liquidity in the shadow banking system. When Bernanke let Lehman go bust on September 15, 2008, these froze their lending activities in reaction to being burned by the Lehman collapse, and the result was the financial meltdown. Since then Bernanke has been pumping trillions into an unreformed and unreformable financial system variously called bubblenomics, crony capitalism, Ponzi economics, and casino capitalism. In doing so, he has taken on large amounts of banks’ crap assets, burned through the Fed’s usual monetarist approaches to no real avail, pretended that if the banks did not admit they were insolvent they were solvent, left unaddressed all the fundamental problems that underlay the housing bubble and the subsequent meltdown, and sought to reflate bubbles rather than stimulate the wider real economy. Despite all this, Bernanke is credited by many otherwise respectable economists with “saving” the financial system his decisions and actions did so much to destroy. Apparently in this Administration failure, even massive failure, is no bar to praise and re-appointment. It is not just our financial system that is broken and bankrupt but, as Obama's choosing of Bernanke shows, our political elites are as well.

On December 3, 2009, Bernanke testified as part of his confirmation process in hearings before the Senate Financial Services committee. In these, he stated that he favored cuts in Medicare and Social Security, the two most popular programs in government, this from the man who wrote blank.checks to the banking industry. He took a wait and see attitude to the high jobless rate, although the Fed’s two core purposes are to regulate the money supply and maximize employment. On December 16, 2009, a day before the Senate Financial Services committee was to vote on his nomination, Time Magazine named Bernanke its Person of the Year. Given Bernanke’s record it was an incredibly foolish choice, ranking up there with Obama’s award of the Nobel Peace Prize (item 125). But at the same time it was strangely expectable, an endorsement of a failed and captured regulator by a failed and captured media. On December 17, 2009, the Senate Financial Services committee approved Bernanke’s nomination by a vote of 16-7 and passed it on to the full Senate. Only one Democrat Jeff Merkley (D-OR) voted no. Several Senators, including liberal Bernie Sanders (I-VT) and conservative Jim Bunning (R-KY) have placed holds on Bernanke’s nomination.

On January 28, 2010, the Senate reconfirmed Bernanke. The cloture vote was 77-23 and the confirmation vote was 70-30. Only 6 member of the Democratic caucus voted against cloture (the real vote to deny Bernanke: Begich (D-AK), Cantwell (D-WA), Feingold (D-WI), Merkley (D-OR), Sanders (I-VT), Specter (D-PA. That Senate Majority leader was able to force a vote on Bernanke’s nomination demonstrates how when the Administration really wants a vote on an issue procedural obstacles, which are constantly being said to be insuperable. are suddenly brushed aside. The vote came one day after Obama’s first State of the Union address in which he stressed the theme of jobs, jobs, jobs. Bernanke’s reconfirmation which Obama strongly backed is another example of how Obama’s actions continue to speak louder than his words.

74. On August 24, 2009, Obama Adminstration’s Interrogation and Transfer Policy Task Force chaired by AG Eric Holder and made up of senior Cabinet and government officials announced that the Bush era practice of rendition of detainees to third contries would continue. . In a summer 2007 Foreign Affairs article, Obama had advocated ending these renditions:

This means ending the practices of shipping away prisoners in the dead of night to be tortured in far-off countries, of detaining thousands without charge or trial, of maintaining a network of secret prisons to jail people beyond the reach of the law.

The task force promised to monitor detainee treatment to prevent torture. The problem is this is exactly the same assurance that the Bush Administration gave when abuse and torture following third country renditions were rampant. A promise to monitor depends upon the times and the Administration. It also raises the question of where Middle Eastern and Central Asian detainees could be rendered considering that torture occurs in most or all of the countries of these regions.

75. On August 24, 2009, the Stars and Stripes first reported that the Pentagon, in an effort to shape coverage of the Afghanistan war, had paid a private contractor the Rendon Group $1.5 million to evaluate how positive or negative a journalist’s work was on the war and to use that as a basis for whether the reporter would be allowed to be embedded with US forces. Rendon also provided recommendations on how reporters who were selected for embeds might best be spun. Rendon is perhaps best known for taking money from the CIA to create the Iraqi National Congress. The INC then fed the Pentagon false information on Iraqi WMD which the Bush Administration used to justify its war. The Pentagon downplayed and denied these activities. It then maintained that Rendon’s work was phased after October 2008. However there is evidence that Rendon’s involvement in Afghanistan continues as well as the practice of screenings for and rejection of embeds for reporters not considered positive enough in their coverage.

August 27, 2009, Stars and Stripes reported that the Pentagon, in an effort to shape coverage of the Afghanistan war, had paid a private contractor the Rendon Group $1.5 million to screen reporters to be embedded with US forces. On August 31, 2009, the command in Afghanistan announced it was terminating the Rendon contract.

76. On August 3, 2009, the SEC filed a complaint alleging that Bank of America (BAC) had lied to its shareholders in a November 3, 2008 proxy statement soliciting support for its $50 billion buyout of the investment bank Merrill Lynch. In the statement, BAC said that Merrill had agreed not to pay any bonuses or other discretionary compensation to its staff before the deal closed without BAC’s consent. What BAC did not tell its shareholders was that it had already agreed to $5.8 billion in such bonuses which represented a significant fraction of the asking price.

With the August 3 filing the SEC and BAC proposed a final consent judgment to Jed Rakoff, a federal judge for the Southern District of New York. In it, BAC without admitting or denying the accusations, was enjoined from making future false statements in proxy sollicitations. It further agreed to pay a fine to the SEC of $33 million. On September 14, 2009, after having requested and received supplementary submissions from both sides, Judge Rakoff rejected the agreement and excoriated both BAC and the SEC. He noted that the SEC had failed to go after those at BAC or its lawyers who were responsible for the lie. Instead it revictimized BAC shareholders (and US taxpayers; BAC has received a bailout of some $40 billion from the US government) by requiring them to pay, on top of the $5.8 billion they had already lost as a result of the lie, a further $33 million as a penalty. Not only were the wrong people paying the fine but the fine was not commensurate with the multi-billion dollar size of the lie. Judge Rakoff also observed that BAC’s undertaking not to lie in the future on proxy statements was meaningless. Since the company had not admitted to lying in the present case, there was no measure to determine contempt of the court’s order in the future. In other words, if BAC had admitted to doing nothing wrong, how could it be enjoined from doing what it had done again? The admission of a wrong act is necessary to the court so it can point to that act and say, “Don’t do that again.” In the absence of such an admission, there is nothing for the court to point to.

In closing, Judge Rakoff wrote that the consent judgment he had vetoed

“suggests a rather cynical relationship between the parties: the S.E.C. gets to claim that it is exposing wrongdoing on the part of the Bank of America in a high-profile merger; the Bank’s management gets to claim that they have been coerced into an onerous settlement by overzealous regulators. And all this is done at the expense, not only of the shareholders, but also of the truth.”

He ordered the SEC and BAC to be ready to go to trial on February 1, 2010.

What makes Judge Rakoff’s decision all the more telling is that, also on September 14, 2009, Obama was giving a speech in New York on financial reform in which he called for greater regulation of financial institutions. The speech was a restatement of Obama’s previous weak proposals for reform, a weakness which was underscored by Judge Rakoff’s decision on the same day in the same city.

On February 22, 2010, Judge Rakoff accepted a $150 million settlement proffered by BAC and the SEC. His acceptance hardly amounted to a ringing endorsement of the deal: “While better than nothing, this is half-baked justice at best.”

77. On September 14, 2009, the Justice Department filed a brief in the DC Circuit Court of Appeals in three consolidated habeas corpus cases: al Maqaleh v. Gates; al Bakri v. Obama; and al-Najar v. Gates involving “non-Afghan aliens allegedly captured outside of Afghanistan and detained by United States military forces at Bagram Airfield.” The district court had ruled that the habeas protections in Boumediene extended to them. In its appeal, the government argued that Boumediene only applied to Guantanamo where the US enjoyed effective sovereignty, not to Bagram, an active war zone, where it did not. It further cited Johnson v. Eisentrager (1950) where the Supreme Court had ruled that accused civilian German war criminals held at a US military prison in Germany could not petition for habeas in US courts because they had at no time during their detention been held where the US exercised sovereignty.

On the surface the invocation of Eisentrager has merit but the government’s further remarks make clear that it sees the weakness in the analogy. It makes the ad hoc argument that it would be onerous for the US government in a war zone to prove that prisoners had been detained in Afghanistan and that such proof could give intelligence to our enemies. This is simply false on its face. The military files reports about its operations. Afghan insurgents and al Qaeda would almost certainly have a very good idea where their soldiers and operatives had been captured. There is no evidence that such information coming out long afterwards would compromise anything. Finally, federal courts, especially those in the DC Circuit are used to keeping information deemed sensitive secret. There is no reason that such secrecy should not hold here.

The government also argued that extending habeas protections to non-Afghans but not Afghans it held would create friction with the Afghan government. It is not clear why this would be so. It is not clear why the US military holding Afghans indefinitely in Afghanistan would not be an even bigger source of friction. Nor is it clear that the Afghan government has any interest in non-Afghan detainees whether they were captured in Afghanistan or elsewhere. So the government’s point of friction seems largely contrived.

Finally, the government argued that it had review panels, that look a lot like the heavily criticized Guantanamo Combat Status Review Tribunals (CSRTs) that substituted for habeas proceedings. As with the CSRTs, no actual lawyers would be involved.

In effect, what the Obama Administration is doing is asking the federal courts to accept a legal fiction in order to construct a new Guantanamo at Bagram outside the purview of US courts. Indeed the Administration is hiding behind Afghanistan’s quality as a war zone to tell the courts to butt out.

"When it comes to military facilities, unlike Guantanamo, that are truly abroad-- particularly those halfway across the globe in an active war zone--courts in the United States exceed their role by second-guessing the political branches about the reach of habeas jurisdiction. And courts particularly overstep institutional bounds when, in direct conflict with Congress’ judgment, they selectively provide habeas rights based on the detainees’ nationality or locus of capture."

Unsurprisingly, given this approach, the government never explains why non-Afghans captured outside of Afghanistan should ever be transported to Afghanistan, a war zone, for detention. Nor does it state why it cannot come to an arrangement with the Afghan government over Afghan and non-Afghan prisoners captured inside Afghanistan. After all, the Afghan government (see item 69) hardly raised a ruckus over Mohammed Jawad who was detained by US forces when he was 12 and held at Guantanamo for 7 years on only the flimsiest of evidence. But of course, the concerns of the Afghan government are only a pretext, as is the war itself, to do an end run around the federal courts’ separation of powers concerns and Marbury interests.

Disappointingly, the Obama Administration has not rejected Bush's extra-legal, anti-Constitutional formulation of the War on Terror and has instead bought into its central premise that there is an extra-judicial space between the Geneva Conventions and the Constitution and US law where only the President rules. (see also item 154)

In a February 26, 2010 habeas petition filed by the ACLU in DC District Court on behalf of two brothers Samiullah Jalatzai and Sibghatullah Jalatzai detained at Bagram, the government's new Detainee Review Boards (successors to the CSRTs) are described in detail:

48. On September 14, 2009, the Obama administration released guidelines that mandated a new administrative process for determining whether people could be imprisoned indefinitely at Bagram. Implementation of the new procedures reportedly began in December 2009.

49. Even under the new process, Bagram prisoners are not permitted any access to lawyers. Bagram prisoners are instead assigned a “personal representative” – a member of the U.S. military responsible to the U.S. chain of command, who is not a lawyer, who has no duty of confidentiality to the prisoner, who has no ethical duty to zealously advocate on the prisoners’ behalf, and who is assigned to detainees by the military convening authority.

50. Bagram prisoners also are not permitted any access to a judge or an independent and impartial tribunal. Prisoners’ status determinations are made by Detainee Review Boards (“DRBs”) comprised of three military officers responsible to the U.S. chain of command. These officers need not be lawyers. The officers are appointed, and can be removed at will by, the military convening authority. They have no protection against command influence or protections against retaliation for DRB rulings.

51. Bagram prisoners are not entitled to see most of the evidence the U.S. military is relying upon to justify their detention. Prisoners must receive notice of the basis for their detention and an unclassified summary of the facts that support the basis for their detention, but are denied access to classified and other evidence in the government’s possession.

52. DRBs may rely on evidence obtained through torture or coercion.

53. The military has no obligation to disclose relevant exculpatory information to the detainee or to his personal representative.

54. A Bagram prisoner’s ability to present witnesses or documentary evidence is left to the discretion of the DRB. Prisoners may present witnesses or evidence only if the military panel deems the witnesses or evidence to be “reasonably available.”

55. Bagram prisoners can be excluded from their own hearings if “operational” concerns arise as to their presence.

56. DRB determinations cannot be appealed to any court or to any higher, independent and impartial administrative body.

As said above, this does not accord with either due process under the Constitution or Geneva. Named in the petition are Barack Obama and Robert Gates. Also named is Mark Martins in his capacity as Acting Commander of Detention Operations at Bagram. Martins is noteworthy because he was the Executive Secretary to the task force set up to review detainee procedures under Obama's executive order 13493 of January 22, 2009. In other words, Martins was instrumental in writing the kangaroo court guidelines he currently implements, showing that the Obama Administration's disregard for human rights and basic legal protections is not a bug but a feature.

78. On September 14, 2009, Obama’s Department of Homeland Security announced that it was making available to fusion centers classified intelligence in Pentagon databases. Fusion centers are highly dangerous and fundamentally at odds with any concept of privacy or democracy. They grew up in the Bush era as a response to the 9/11 attacks and the fears those engendered. They were supposed to be a place where local, state, and federal authorities could pool information, both public and private, to discover and counter terrorist threats. But they quickly grew beyond that and were used in regular law enforcement. The problems are many and inherent. The amount of information on any individual can be vast and vary greatly in quality and accuracy. Yet it is available to some 800,000 law enforcement personnel in the country. Information that law enforcement officers may be restricted from seeking in their jurisdiction may be freely available through the fusion center. There are no apparent restrictions on its use. Conceivably, the policeman giving you a traffic ticket could access your bank and medical files or find out what groceries you just bought. The current decision by giving the military a greater role in civilian law enforcement is a further erosion of posse comitatus. Fusion centers are not benign institutions but essential agents of a surveillance state. This is another example where the Obama Administration, instead of curtailing the excesses of the Bush years, seems bent on expanding them.

79. On September 17, 2009, the Obama Administration announced that it would go ahead with a scaled down version of a missile shield. The revised plan is to deploy smaller SM-3 interceptors on ships by 2011 to be used against short and medium range missiles, increase their numbers and add land based ones as well by 2015 and then scale up deploying newer interceptors in 2018 and 2020 against long range missiles. The goal is to protect Europe, the Gulf, and Israel against a possible Iranian missile attack. Another stated purpose is to forestall an Israeli strike on Iran. The missile shield has been around since Reagan’s Star Wars. Untold billions have been wasted on it. Its success rate even in highly controlled tests has been poor and cheap decoys could defeat it even if it worked as advertised. This is another example of Obama walking back a position and shows once again how difficult it is to kill procurement programs even for weapons that aren’t needed or don’t work.

An October 8, 2009 summary of the conference report for the Defense Authorization bill indicates that $9.3 billion will go to Obama’s “scaled down” missile defense initiative. This indicates that while the structure of the program has changed, its funding levels have not. They are actually higher than under Bush.

80. On September 18, 2009, George Mitchell, Obama’s Middle East envoy returned to the US after failing to win an agreement with Israel to freeze settlement construction and begin a new round of peace talks. This was entirely predictable. On the one hand, we have the non-confrontational Obama and on the other the Israeli prime minister Benjamin Netanyahu, a politician who if he came from any other country would plain and simply, and quite accurately, be termed a fascist. Equally predictable was that Netanyahu raised objections on issues that had been previously agreed to. This is a replay of what Netanyahu did in the 1990s when he sank the Oslo Agreement. One would think with all the Clintonistas in the Obama Administration they might have noticed. The likelihood of any movement on the Israeli-Palestinian conflict with this constellation of players and approaches is zero.

81. On September 6, 2009, Van Jones resigned his post as Special Advisor for Green Jobs at the White House’s Council on Environmental Quality. Jones, an African American was one of the few progressives hired by the Obama Administration. Jones graduated from Yale Law School in 1993 and became a radical. In 1996, he founded the Ella Baker Center for Human Rights in San Francisco and moderated his politics. He became a spokesman for the poor and an activist on environmental issues. In 2005, reacting to the poor and chaotic government response to Katrina, especially where African Americans were concerned, he cofounded Color of Change with James Rucker. In 2008, he started Green for All, an organization dedicated to lifting African Americans out of poverty through the creation of green jobs. The White House job was both a recognition of his past work and a natural extension of it. Unfortunately, as one of the few true liberals in the Obama Administration, Jones became the target of the right wing noise machine. Smear attacks began in April 2009 at the conservative World Net Daily. Then on July 23, 2009, the campaign to oust Jones was taken up by syndicated radio show and Fox News host Glenn Beck. Beck had been feeling the heat over his racist views from Color of Change, in a successful campaign which had seen 57 of Beck’s advertisers drop him. In reaction, Beck lashed out at Jones, even though Jones had moved on from Color of Change two years previously. The Obama Administration was notably silent neither defending nor supporting Jones, letting him twist in the wind until he decided to resign. In acting this way, the Administration has made it easier for the right wing to attack what few progressives remain in it. The right will either succeed or pay no price for their efforts. As for progressives they are feeling even more frozen out by an Administration they helped elect.

82. On October 2, 2009, the Justice’s Office of Special Counsel (OSC) cleared Leura Canary, the US Attorney who had begun the prosecution of former Democratic Alabama Governor, of allegations that she had obstructed justice in the case and not reported improper jury communications during the trial. Canary’s husband was a top adviser to Siegelman’s gubernatiorial opponent Bob Riley and, according to an affidavit submitted by a Republican lawyer also working on the campaign, he had declared that Karl Rove had promised him that the DOJ would go after Siegelman. Only after these facts became known to Siegelman’s defense team and they protested did Leura Canary recuse herself from the case—although it was reported that she continued to advise the subsequent prosecution. As such she was a key figure in the politicization of the DOJ under Bush. Yet as of this writing, 8 months into the Obama Administration, she remains the US Attorney for the Middle District of Alabama. (see also item 224 of my Bush scandals list). The question is not simply incompetence in the OSC but in the Holder DOJ with regard to replacing Bush’s most politicized USAs either through interim appointment or permanent nomination.

83. On September 25, 2009, Obama gave his full support to a United Nations’ General Assembly resolution calling for a halt to the proliferation of nuclear weapons. He pointed to Iran as the primary challenge to non-proliferation. Iran is a signatory to the Nuclear Non-Proliferation Treaty (NPT). The consensus conclusion of the US intelligence community’s 2007 NIE on the subject found that Iran had abandoned its weapon program in the Fall of 2003. On October 2, 2009, the Washington Times reported that Obama had renewed a secret 40 year old accord (September 25, 1969) with Israel not to pressure it to give up its stockpile of some 200 nuclear weapons, sign the NPT, or submit to international inspections. So it only took Obama one week to backtrack on and undercut his non-proliferation pledges as well as his arguments against Iran.

84. On October 2, 2009, the Obama Administration sent to Congress a draft proposal which would considerably weaken a journalist’s shield law currently being considered. The Obama proposal would create a lower standard for the government in forcing reporters to disclose sources in national security cases.

Under the administration's language, a reporter could be compelled to reveal his or her sources if public disclosure of the sources' information "caused or [was]reasonably likely to cause significant and articulable harm to national security." In such cases, there would not be a "balancing test," in which a judge weighs the importance of the public having the information against the damage it could cause national security. The government would only have to show the judge, probably in a closed session, that the information was protected and "reasonably likely" to cause the damage.

This would have a chilling effect and put at risk whistleblowers, such as those who disclosed the government’s illegal domestic wiretapping and data mining programs or its running black prison sites where torture took place.

Even in civil cases without national security or criminal connections, there would be no balancing of interests. The Obama proposal would allow anyone to force a reporter’s disclosure of sources if it could be shown that there were “reasonable grounds to believe that the information sought is essential to the resolution of the matter.”

The effective result would be that the government could pursue those who leaked embarrassing information about dubious and illegal programs and actions and that those with deep pockets, like corporations, could do the same in civil litigation.

85. The Patriot Act was signed into law on October 26, 2001 while the nation was still reeling from 9/11. It was re-authorized in July 2005 and further amendments to it were made in February 2006. Three provisions which were deemed potentially overbroad or open to abuse were set to expire at the end of 2009 and were up for re-examination. All three go through FISA and the FISA court.

The first of these was the lone wolf provision which allowed surveillance of a non-citizen target not associated with an international terrorist group but who was thought to be involved in international terrorism. Per the government, this section of the Patriot Act has never been invoked. After 8 years of the “war on terror,” this fact raises the question of why it should exist in law at all. Clearly, regular criminal investigative techniques and other powers through FISA have proved sufficient.

The second was the roving wiretap. This allowed the government to wiretap an individual that frequently changed communication devices or tap an address through which suspected terrorists circulated. The concern was that the two might be combined allowing the tapping of an unspecified individual at an unspecified location or locations. This would essentially be an open warrant allowing the government to wiretap anyone anywhere. In 2005, this was amended to require a description to the FISA court of the target, which still left the provision too unspecific.

The third provision is the 215 order, referring to section 215 of the Patriot Act. It requires the production of “any tangible thing” related to the target. This could be any information held by anyone regarding the target or anyone having contact with him/her. The information could be, for example, from banks, libraries, medical records, or telephones. The telephone data usually came from pen registers which caught the numbers of all outgoing calls or track and traces which did the same for incoming ones. From these, contacts could be determined. The fear here was that such searches could cast too broad a net and result in the surveillance of many innocent people, in contravention of Constitutional guarantees.

Modifications of these sections of the Patriot Act were being considered when in September 2009 Najibullah Zazi, an Afghan living in the US, was arrested in a bombmaking plot. Attorney General Holder and Senators Dianne Feinstein (D-CA) and Patrick Leahy (D-VT) moved to keep or toughen them in light of the Zazi investigation. This was a gratuitous move since ongoing investigations could have been grandfathered into the legislative modifications, even though in the Zazi case it was not clear how much the investigation had actually depended on or used them.

On February 24, 2010, the Senate in a voice vote and without debate passed an extension of the Patriot Act. In doing so, Democrats turned their back on changes that would have among other things put restrictions on the widespread FBI abuse of National Security Letters (NSLs), increased privacy protections on library records, and made gag orders easier to challenge. On February 24, 2010, the Senate in a voice vote and without debate passed an extension of the Patriot Act. In doing so, Democrats turned their back on changes that would have among other things put restrictions on the widespread FBI abuse of National Security Letters (NSLs), increased privacy protections on library records, and made gag orders easier to challenge. Harry Reid did this by taking the Medicare Physician Payment Reform Act from the House HR 3961, stripping out its content, and substituting via the amendment SA 3331 the Patriot Act extensions (to February 28, 2011) in its place. The House then passed it (roll call 67) the next day on February 25, 2010 with bipartisan backing 315-97: 162 Democrats and 153 Republicans voting for; 87 Democrats and 10 Republicans voting against.

On May 26, 2011, a 4 year extension of the Act was passed with Harry Reid using a similar legislative machination. The vote was 72-23 in the Senate and 250-153 in the House. Essentially, the plan was to wait to the last minute and then to rush through the extension without debate before the provisions expired at midnight. To illustrate the kabuki of this "emergency" action, once the bill was passed, Obama who was in Europe for the G-8 summit didn't bother to have it rushed to him for signature. He instructed his staff at the White House to "auto pen", that is use a machine signature, to sign the bill. Laughably, the legal rationale for such a signing process, completely at odds with the clear language of the Constition, came from Stephen Bradbury of torture memo fame in 2005 while he was still head of the Office of Legal Counsel. So that must mean it's OK, right? Besides as we all know Obama is a Constitutional scholar. Amusingly, or perhaps not, Obama voted against the previous extension of the Act at closure on December 16, 2005, that is before he voted for it on March 2, 2006.

86. Wilner v. NSA is a FOIA lawsuit brought on behalf of 24 lawyers representing Guantanamo detainees. A December 16, 2005 story in the New York Times by James Risen and Eric Lichtblau revealed a post-9/11 warrantless, and illegal, wiretap program, the Terrorist Surveillance Program (TSP) run by the NSA during the Bush Administration. They wrote,

Since 2002, the agency has been conducting some warrantless eavesdropping on people in the United States who are linked, even if indirectly, to suspected terrorists through the chain of phone numbers and e-mail addresses, according to several officials who know of the operation.

On December 17, 2009, George Bush admitted to the existence of the TSP in a radio broadcast and described the program.

In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.

He did so again in a December 19, 2005 press conference:

I want to make clear to the people listening that this program is limited in nature to those that are known al Qaeda ties and/or affiliates

On March 24, 2006, Assistant Attorney General William Moschella in response to questions posed by Rep. James Sensenbrenner the then Chair of the House Judiciary Committee:

45. Are any communications between attorneys and their clients or doctors and patients being captured?

The Terrorist Surveillance Program targets communications for interception only when one party is outside the United States and there is probable cause to believe that at least one party is a member or agent of al Qaeda or an affiliated terrorist organization. Although the Program does not specifically target the communications of attorneys or physicians, calls involving such persons would not be categorically excluded from interception if they met these criteria.

In addition, the named plaintiff in the action Thomas Wilner was told on two occasions by government officials that he was “probably the subject of government surveillance.”

The case was filed on May17, 2007 in the Southern District of New York. The government responded using the Glomar defense, (named after the famous spy ship the Glomar Explorer), neither confirming nor denying on the grounds of national security that attorney-client conversations had been targeted. On June 25, 2008, Judge Denise Cotes acceptedthe government’s partial motion for summary judgment. The plaintiffs appealed to the 2nd Circuit. They contend that any NSA interception of attorney-client communication is illegal and argued that neither FOIA nor FISA allow their exemptions to be used to hide illegal acts by the government. They noted too that Bush himself had discussed the TSP and so a Glomar response made no sense in the context. They emphasized the unConstitutionality of the warrantless surveillance, that it was an unreasonable search and seizure under the 4th Amendment, that the threat or fact of surveillance chills attorney-client communication and violates the attorney’s freedom of speech under the First Amendment, that it interferes with their 5th Amendment right to practice their profession (depriving them of their “life and liberty” without due process), and that the Executive’s surveillance of attorney-client communication violates separation of powers. This last is likely to be attractive to federal courts, including and especially the Supreme Court which has not shown great interest in the rights of individuals but is zealous in its defense of its own prerogatives.

What this case demonstrates is that, in the face of FOIA, FISA, and long established practice, the Obama Administration continues to defend and seek to hide acts by the Bush Administration which are illegal on their face.

87. On September 15, 2009, Richard Goldstone, a South African judge, released a report commissioned by the UN Human Rights Council on the December 27, 2008-January 19, 2009 Israeli invasion of Gaza. The report

found evidence that both Israeli forces and Palestinian militants committed serious war crimes and breaches of humanitarian law, which may amount to crimes against humanity

The mission finds that the conduct of the Israeli armed forces constitute grave breaches of the Fourth Geneva Convention in respect of wilful killings and wilfully causing great suffering to protected persons and as such give rise to individual criminal responsibility,” the report’s executive summary said. “It also finds that the direct targeting and arbitrary killing of Palestinian civilians is a violation of the right to life.”

The report noted Hamas’ campaign of homemade and largely ineffective rockets fired into Israel was meant to spread terror among the civilian population but accused Israel of

the application of disproportionate force and the causing of great damage and destruction to civilian property and infrastructure, and suffering to civilian populations.

It called for Israel to mount independent investigations within 6 months, for these to be monitored, and in their absence or insufficiency, for the Security Council to turn the matter over to the International Criminal Court.

On October 2, 2009, Haaretz reported that the Palestinian Authority under pressure from the Obama Administration had withdrawn a draft resolution condemning Israel effectively deferring the adoption of the report and any action stemming from it until March 2010 and beyond. The Obama Administration argued that the peace process came first. This might be defensible if there was any sign of a peace process now or in the near future, but there is not. Israel has a radical right wing government, much further to the right than even the Kadima-Labor government that carried out the assault on Gaza. Obama’s efforts and those of his envoys to steer Israel to the peace table have been effectively rebuffed. The practical result is that the Obama Administration was running interference for the Israelis at the UN as American Administrations have done for the last 30 years, and Obama was doing it at the expense of the truth, justice for the victims, and our standing in the world.

There was considerable blowback from the Administration’s actions. As a result, the UN Human Rights Council voted to adopt the Goldstone report on October 16, 2009. The US voted against. It will likely veto in the Security Council any attempt to involve the International Criminal Court, but then not investigating criminality is something of a specialty of this Administration.

In typical fashion, on November 3, 2009, the House passed a sycophantic resolution 344-36 condeming the Goldstone report. Mindless support for Israel does neither state any good. On November 5, 2009, Palestinian leader Mahmoud Abbas he would not stand for re-election in January 2010. Abbas had initially been pressured by the Obama Administration into seeking a delay of the presentation of the Goldstone report, a move which he reversed in the face of a considerable Palestinian backlash which severely damaged his support. While this could be a political ploy by Abbas, the upshot of the White House’s machinations has been to undercut and possibly eliminate their preferred Palestinian leader.

88. The Obama Administration has been unduly slow in filling federal judgeships and has allowed Republicans to block the few nominations sent to the Senate. This is an important point because Republicans have stacked the federal judiciary with arch-conservatives. As of October 2009, Obama had sent up only 23 names for some 90 vacancies. Of these, only 3 had been confirmed due to Obama and the Democrats’ toleration for Republican obstructionism. At the same point in his Administration, George Bush had sent 95 nominees to the Senate for confirmation. There is also the question of the ideology of Obama’s choices. Replacing radical conservatives with center-right selections will not redress the balance in the nation’s federal courts. Rather than a mix of liberal and conservative judges, we will have a judiciary made up of conservative and more conservative judges. This an example of the “ratchet” effect which continues to move our elites to the right and away from where most Americans are.

89. State budget deficits are a disaster that is unfolding before our eyes. Falling house prices and declines in sales and income taxes have led to a precipitous fall in budget revenues. The states received some $49 billion in assistance from the Obama stimulus in the form of aid and for infrastructure projects. Even so they have had $63 billion in shortfalls to June 30, 2009 (the beginning of most of their fiscal years) and a further $26 billion in the first two months of the new fiscal year. In other words, through August 2009, states needed 2.8 times the money they received from the Obama stimulus to balance their budgets. While trillions have gone unproductively to banks, state finances are falling apart. This is another key deteriorating fundamental of the real economy that the Obama Administration is failing to adequately address.

90. On October 20, 2009, the Supreme Court agreed to hear the case Kiyemba v. Obama. This is another case where the Obama Administration is trying to perpetuate the injustices of the Bush years. It involves the 17 Uighurs who were detained in Afghanistan in 2001 and sent to Guantanamo where they remained for 7 years. They were never designated enemy combatants and by 2003 it was known that they were innocent victims, simply in the wrong place at the wrong time.. They were however a political embarrassment. It was considered likely that they would be tortured if they were returned to their native China which actively suppresses ethnic minorities like the Uighurs. So they were held rather than offending the Chinese by releasing them. Solicitor General had petitioned the Court not to hear the appeal. The crux of the case is that a federal judge Ricardo Urbina ordered the Uighurs released into the US since they could not return home and they were innocent. But the DC Court of Appeals ruled in a 2-1 decision:

It is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the government to exclude a given alien

4 Uighurs have already gone to Bermuda; six more to Palau with an invitation to six of the seven remaining Uighur detainees. The 17th Uighur, Arkin Mahmud, has mental problems which his prolonged detention at Guantanamo either caused or exacerbated, and his brother, another of the Uighur detainees has refused to leave without him. The Obama Administration is busily trying to get rid of the Uighurs to moot the case.

On February 3, 2010, Switzerland agreed to take the last two Uighurs. It is unclear what the quid pro quo was for this but there certainly was one. On February 6, 2010, Solicitor General Elena Kagan wrote the Court informing it of this development and tellingly added, “Accordingly, the Court may wish to dismiss the writ of certiorari as improvidently granted.” This is different from mooting the case. If the case were mooted, it would erase the decisions of the lower courts, meaning that the government would have to start over if this issue was raised again, as it likely will be, in the future. If, however, SCOTUS accepted that certiorari was improvidently granted, those decisions would stand and would leave the government with decisions still on the books and a higher level of authority to deny judicially mandated entrance of aliens. In other words, Kagan and the government are not acting out of humanitarian concerns.

On March 1, 2010, the Supreme Court decided to kick this much kicked can down the road, choosing a middle ground between the government’s push for the Court to de facto ratify its position and defense counsel’s desire for a conclusive decision. SCOTUS vacated the judgment and sent the case back to the Court of Appeals for the District of Columbia to re-assess the situation and its findings given developments in the resettlement of the Uighurs.

91. On October 20, 2009, the Obama Administration gave conditional approval for Shell to drill in the Beaufort Sea off the north coast of Alaska from July-October 2010. This is a pro-drilling move that not even Bush was able to accomplish. Like most extreme environments, the Beaufort poses technical challenges to drilling and has a delicate ecosystem which drilling could do great harm to. As has already been seen at Prudhoe Bay, sloppiness and poor maintenance can result in a significant oil spill.

On March 31, 2010, the Obama Administration in an anti-environmental move of vast proportions opened up 167 million acres of the Atlantic coast from Delaware to mid-Florida for oil and gas exploration. Part of the eastern Gulf of Mexico and another 130 million acres off the North Coast of Alaska would also be opened up. Bristol Bay off Alaska's west coast and the entire West Coast of the continental US would be put off limits for now. This looks like an adoption by Obama of yet another Republican party plank, that of "Drill, baby, drill." It will not be available for many years, will have little impact on prices or our dependence on foreign produced oil, and it flies in the face of what is needed to counter global warming. In typical Obama fashion it angers his base and gives Republicans almost everything they want without satisfying them or gaining their support.

In light of this, embarrassingly, on the evening of April 20, 2010, the oil rig Deepwater Horizon under contract to BP caught fire following an explosion in the Gulf of Mexico 52 miles southeast of Venice, Louisiana killing eleven. The rig sank 36 hours later on April 22, 2010. Initial estimates put oil spilling from the rig's well at 1,000 barrels/day. This was soon increased to 5,000 bbls/day. The well was leaking in at least 3 places and its shutoff valve wasn't working. Halliburton was the contractor responsible for cementing the drill hole and had recognized difficulties with this operation in deep water. For its part, BP has a long and troubled history on safety issues and cutting corners, including a March 23, 2005 refinery fire in Texas City, Texas which killed 15 and a 200,000 gallon pipeline leak in Prudhoe Bay, Alaska discovered March 5, 2006 (mentioned above). It was also fined for violations relating to a near blowout on another oil rig the Ocean King in November 2002.

The spill which may not be stopped for weeks or months threatened significant environmental damage to wetlands and beaches from Louisiana to Florida. It also threatened the livelihoods of fishermen and those employed by the tourist industry in the region. The Obama Administration has said that BP is responsible for costs to clean up the spill but its liability with regard to the environment and those whom it has harmed may be limited.

On April 30, 2010, Obama tried to have it both ways, stopping new offshore drilling for now but not rescinding his recent plan to open up large stretches of water in the Gulf of Mexico and off the East Coast to oil exploration. In other words, the giveaway to the oil industry is still on. It has only been delayed until the public outcry and bad press have died down.

A May 5, 2010 Washington Post story relates that on April 6, 2009 the Obama Administration's Mineral Management Service (MMS) granted BP's Deepwater Horizon project a "categorical exclusion" from an environmental assessment under the National Environmental Policy Act (NEPA). A serious spill like the one that occurred was not even considered. The MMS was scandal plagued under Bush, and the Obama Administration rather than moving aggressively to clean it up (and similar agencies like the Mine Safety and Health Administration (MHSA), for example) has taken a business as usual, i.e. pro-business, stance.

Obama's moratorium looks increasingly like a PR gimmick. A May 7, 2010 McClatchy story reports that, in the 17 days since the Deepwater Horizon blew up on April 20, 2010, the Obama Administration has given out 27 exemptions from doing environmental analyses on oil drilling in the Gulf of Mexico.

On May 13, 2010, it was reported that, under Bush continuing into the Obama Administration, the MMS routinely allowed oil companies to drill offshore without getting necessary permits from NOAA assessing threats to endangered marine mammals. Further, the agency overruled its own scientists and engineers when their concerns over safety and environmental issues conflicted with drilling.

On May 14, 2010, ABC reported that a BP film in possession of the White House showing oil spewing from an underwater pipe in the Gulf was withheld from the public for 3 weeks. It is hard to see this as anything other than media management for BP's benefit. If the tape had been made available from the beginning, public outrage would have been even larger than it is. And it would have been obvious that much more than 1,000 barrels of oil a day then 5,000 barrels of oil were entering the Gulf. Current estimates place the amount at somewhere around 25,000 barrels a day (1 million gallons) with high ends estimates at 70,000 barrels (3 million gallons). BP and the government should have data about the diameter of the pipe, the velocity of the exiting flow, and the composition of the oil-gas-water mixture. From these an accurate estimate could be made of the amount of oil that has leaked. The question is why this has not been done, or if done, why the results have not been made public.

On May 20, 2010, the EPA finally ordered BP to switch the dispersant Corexit the company was using. There have been criticisms that Corexit is both less effective and more toxic than alternatives. BP had pumped some 700,000 gallons of it to date. A month on and in response to rising criticism to the dearth of information released by BP on the spill, the Administration belatedly called on it to release materials related to the spill. Such calls are meant to direct attention away from the Administration's incredibly lackadaisical attitude to what most of the country looks on as a national emergency. Indeed for this reason some have dubbed it Obama's Katrina.

On May 22, 2010, continuing the complete arrogance it has shown from the beginning of this disaster, BP rejected the EPA order saying that it could not find an alternative to Corexit (there are several) and so would continue using it.

On May 23, 2010, the New York Times reported that since the Deepwater Horizon blew up the MMS had handed out 19 environmental waivers and 17 permits for offshore drilling; these included 5 environmental waivers and 7 drilling permits since Obama announced his moratorium. Of these various waivers, 6 are for projects in waters deeper than those where the Deepwater Horizon blew up, some in waters nearly twice as deep. Even a month on in a major environmental disaster, the Administration's attitude remains one of business as usual.

On May 26, 2010, BP began a top kill: pumping in heavy drill mud, in an attempt to fill in the well and stop the spill. On May 27,2010, the USGS made an initial estimate that 12,000-19,000 bbls/day had spilled from the well. Also on May 27, 2010, Obama fired Elizabeth Birnbaum. Birnbaum had headed the MMS since July 2009. The firing was probably deserved, but its timing was clearly to deflect attention away from Obama and Interior Secretary Ken Salazar's pro-drilling policies. Finally, on the same day, Obama announced an extension of his partial moratorium on offshore drilling. This would result in the cancellation of lease sales in the Western Gulf of Mexico and off the Virginia coast and exploratory drilling off the coast of Alaska in the Beaufort and Chukchi Seas.

On May 29, 2010, the Saturday of the Memorial Day weekend, BP announced that its top kill attempt had failed. On June 4, 2010, having cut the riser where it entered the BOP, BP placed a revised tophat called the lower marine riser package (LMRP). It was not immediately clear how much this would decrease the oil flowing into the Gulf.

[The Deep Horizon oil spill has been a textbook case of government agencies kowtowing to the PR and legal needs of BP the corporation responsible for the largest oil spill in US history. It began with the MMS waivers. Then after the rig blew up, the Coast Guard consistently lowballed the size of the spill for weeks. Characterizing the spill as smaller than it was potentially reduced BP's financial liability. The EPA was AWOL for weeks then finally ordered BP to find another dispersant other than Corexit which was more toxic and less effective than the alternatives. BP said no, and the EPA folded. NOAA did no initial testing then under pressure in the week of May 10 some results were reported suggesting that there were large plumes of dispersed oil underwater in the Gulf. Rather than publish the information the director of NOAA Jane Lubchenco has suppressed it and even gone so far to try to gag researchers on NOAA vessels in the Gulf. As for OSHA, there have been reports of oil cleaning crews becoming sick from fumes from oil and/or the Corexit dispersant. It has decided that those working on the cleanup don't need breathing protection. A June 9, 2010 NYT story documents how the government and BP have been restricting media access to areas affected by the spill. Reports of this first surfaced when a CBS crew was threatened with arrest by BP employees for filming on a public beach. The Times story recounts how Senator Ben Nelson was told by the Department of Homeland Security that he could not take journalists with him aboard a Coast Guard vessel for a coastal inspection and how BP officials working with the FAA nixed a flight carrying a photographer from the New Orleans Times-Picayune who wished to take pictures of the oil spill at sea. There have also been numerous reports of BP contractors interfering with news crews and even calling local law enforcement on them. And then there is the clause BP inserted in the contracts of those it hired for the clean up threatening them with termination if they talk to the press. If you look past the speeches, the Obama Adminstration is doing everything it can to protect BP and keep the magnitude of the disaster in the Gulf from the American people. It isn't working, but that's not for want of them trying.]

On June 4, 2010, BP split off its Gulf of Mexico operations into a subsidiary headed by a US citizen Bob Dudley. It is uncertain what the legal ramifications of this will be. From a PR point of view, it was meant to remove BP's CEO Tony Hayward from the scene. He was the public face of BP, and it was not a very pretty or truthful face. Words like dishonest, insensitive, egocentric, amoral sociopath come to mind to describe him. This was true even before the spill. In May 2009, in a speech to the Stanford Business School Hayward famously remarked that BP's problem was that "We had too many people that were working to save the world." As the biggest environmental disaster in US history unfolds, we can certainly attest that Hayward managed to get rid of all those at BP. After the oil spill, he lamented that he wanted his life back. Apparently the Gulf disaster was taking away too much time that he could have more profitably used to loot and pollute other places around the world. He said that the environmental damage from the spill was likely to be very, very modest, that the toxic oil dispersant BP was using was no problem because the volume of water in the Gulf was so large. After evidence emerged that much of the oil was in "plumes" beneath the surface, he denied that the plumes existed. When some workers became ill, he opined that they might have been suffering from food poisoning rather than inhalation of fumes. In leaving for greener, and less oil filled pastures, he reacted to the many criticisms of him in predictable fashion, "So far I'm unscathed ... Sticks and stones may break my bones but words will never hurt me." This was the man who ran the company responsible for this horrendous and preventable oil spill and to whom Obama had delegated full authority to deal with the spill and its environmental and economic impacts. It was rather like choosing Jack the Ripper to be his surgeon for an intestinal operation.

On June 10, 2010, the USGS came out with updated estimates on the blowout flow rate prior to the cutting of the riser and attachment of the LMRP: 20,000-40,000 bbls/day with an average of 25,000-30,000. This is in keeping with what non-governmental, non-BP back of the envelope estimates had originally set it at. These had looked at production in comparable wells in the area (50,000-60,000 bbls/day) and had marked off 50% to take into account crimps in the riser and obstructions in the BOP. Since the cutting off of the riser and insertion of the LMRP, BP has been getting 10,000-15,000 bbls/day through it. Using the same ballpark approach, this would indicate a post-LMRP spill rate of 35,000-50,000 bbls/day. In other words, BP's decision to catch part of the flow with the LMRP has made the spill considerably worse. On June 15, 2010, the spill rate was increased again to up to 60,000 bbls/day. On August 2, 2010, new estimates were released. It was thought that the well initially was spewing 62,000bbls/day and that this gradually decreased over time to 53,000bbls/day when the well was eventually capped (see below). This would indicate 4.9 million bbls were spilled into the Gulf. The fines from this could run as high as $21.2 billion.

On June 22, 2010, federal district court judge Martin Feldman in New Orleans, a Reagan appointee, overturned the Obama Administration's limited 6 month moratorium on new deepwater drilling in the Gulf. In an amazing opinion, Feldman wrote that just because one rig blew up did not mean that other deepwater rigs presented an "imminent danger." This is not only blank stupidity but shows a regional mindset that will bend over backwards for the oil industry regardless of the circumstances. Consider, for example, if a jetliner goes down. A component or sytem is known to have failed but it is unclear how or why it did. That model and even other jets with the same system are grounded until the problem is understood and resolved. Feldman is telling us to fly blind because industry profits are more important than another blowout. He says the court should not substitute its judgment for that of the agency and then proceeds to do so. He sets out the applicable law validating the moratorium and then promptly ignored it. The Obama Administration promised to appeal.

On July 12, 2010, Interior Secretary Ken Salazar issued a new moratorium on wells that use blowout preventers. However any deepwater wells currently in operation would continue in operation. On July 15, 2010, BP reported a new cap had stopped the flow of oil into the Gulf and began pressure tests on the well to see if the cap could be maintained. On August 3, 2010, NPR reported that Michael Bromwich, the director of the Bureau of Ocean Energy Management, Regulation and Enforcement, was working with Interior Secretary Ken Salazar to lift the moratorium on drilling in the Gulf "significantly in advance of November 30." So only two weeks after the capping of the worse marine oil spill in US history, the Obama Administration, having learned nothing from the experience was already trying to return to business as usual as quickly as possible.

On June 16, 2010 Kenneth Feinberg who was in charge of the fund to compensate families of victims of 9/11 and who oversaw corporate pay packages under TARP was named to head a $20 billion fund set up BP to compensate those who lost income due to its blowout in the Gulf. However, a month later Feinberg said he could not cut checks for anyone because BP had not put any money in its escrow account. On August 3, 2010, Pro Publica reported that BP continued to run the claims program, that it had made initial payments on only 38,400 claims (28% of those received), and that it had held up 59,900 (43% of the total) for insufficient documentation. In fact, for many claims in this last group, it is not a question of documentation but rather that BP has decided to pass many claims concerning indirect losses on to Feinberg. Only they haven't given Feinberg any money to settle them. Stalling, making the process as long and as difficult as possible is a standard means of limiting pay outs by wearing down claimants. Many who have legitimate claims will be daunted by the process, not file or accept less, just to get it over with and get on with their lives.

On August 3, 2010, a static kill of the well was effected, that is drilling mud was successfully pumped into the well. On August 4, 2010, NOAA came out with estimates of what happened to the oil spewed into the Gulf by the BP well blowout. It estimated that 25% had evaporated or dissolved, 17% was recovered directly from the well head, 16% dispersed naturally, 8% was chemically dispersed, 5% was burned, and 3% was skimmed. After running interference for BP as well as its long and repeated failures to estimate the well's flow rate or accept evidence of underwater oil plumes, it is more than a little suspicious that NOAA should rush out such specific figures for what happened to the oil, figures which suggest that 3/4 of the oil has been neutralized and that the remaining 26% is quickly biodegrading. What NOAA's press release did not mention was that even if these figures were accepted, that 26% represents 53 million gallons or 5 times the size of the Exxon Valdez spill. Nor did it address the issue of the fate of the natural gas, much of which due to the high water pressures and cold temperatures one mile down never reached the surface. All in all, the NOAA report looked like an exercise in damage minimization. This message was echoed by Obama the same day in remarks before the AFL-CIO:

a report out today by our scientists show that the vast majority of the spilled oil has been dispersed or removed from the water. So the long battle to stop the leak and contain the oil is finally close to coming to an end. And we are very pleased with that

Out of sight, out of mind.

On August 9, 2010, BP announced it had paid $3 billion into its escrow account and promised a further $2 billion in the fourth quarter. The account is supposed to eventually reach $20 billion. It will be interesting to see if A) this ever happens and B) it is fully dispersed. It is important to remember that this was to be an initial down payment, not a final settlement.

On August 17, 2010, scientists from the University of Georgia released their estimates on the amount of oil still in the Gulf. Contradicting those of the government, they declared 70-79% of the oil was still there.

On October 12, 2010, the Obama Administration lifted its moratorium on deepwater drilling.

On October 28, 2010, the Presidential commission investigating the blowout reported that Halliburton and BP knew weeks before the disaster that the foam cement they were to use to seal the well was unstable and did not meet industry standards. It is important to remember that while cement that would not set properly was crucial to the blowout it was still one of many failures leading up to the disaster.

On November 8, 2010, Fred Bartlit, the lead investigator for the Presidential commission, presented his findings to the commission. He argued that there was no evidence that anyone had jeopardized safety to cut costs. Of course, lacking subpoena power Bartlit only had the representations of those involved, BP, Halliburton, and Transocean for this amazing but predictable statement. BP has a long record of safety violations.And all three have questionable histories. But Bartlit who is a founding partner in the litigation boutique Bartlit Beck Herman Palenchar & Scott somehow misses all that. The saying goes: Where there is smoke, there is fire. Bartlit would reformulate this as where there is smoke, there is smoke, but its origin must remain a mystery. Somehow when our elites investigate themselves, they never find anyone guilty.This is meant to reassure us, but it doesn't.

On November 17, 2010, a panel from the National Academy of Engineering issued a report commissioned by the Interior Department with very different findings from those of Fred Bartlit. It concluded that BP and its contractors Halliburton and Transocean were to blame for the blowout and that inadequate training, a lack of emphasis on safety, and the pressure to cut costs contributed to the disaster. The panel also cited a lack of oversight by the Minerals Management Service.

On February 28, 2011, the Bureau of Ocean Energy Management, Regulation and Enforcement announced its first permit for deepwater drilling in the Gulf since the BP disaster. The permit was issued to Noble Energy, in which BP has a 46.5% stake. Plus ça change, plus c'est la même chose.

92. On October 16, 2009, federal district court judge Royce Lamberth ruled against the ACLU in a FOIA request asking for uncensored transcripts of the Combat Status Review Tribunals (CSRTs) of Guantanamo detainees formally held by the CIA. Heavily redacted transcripts had been released in June. Specifically, the ACLU was interested in first hand accounts of CIA torture of detainees. Without reading the actual transcripts and depending on a CIA affidavit that it was not hiding anything illegal, judge Lamberth accepted the government’s arguments that release of the material would reveal sources and methods and could be used for “propaganda” purposes. Mark this one as a success in the Obama Administration’s ongoing campaign to cover up Bush era torture and a major failure on the part of judge Lamberth for not reviewing the CSRT transcripts before making his determination.

93. In response to a FOIA request, the FBI released a redacted version of its Domestic Investigations and Operations Guide on September 25, 2009. The manual came into force on December 1, 2008, in the last days of the Bush Administration, and continues to be used in the Obama Administration. While the accompanying press release states that the FBI does not

target anyone or any group on the basis of race, ethnicity, religion, or the exercise of any other right guaranteed by the Constitution.

and its general counsel Valerie Caproni re-assured

“I don’t like to think of us as a spy agency because that makes me really nervous,” she said. “We don’t want to live in an environment where people in the United States think the government is spying on them. That’s an oppressive environment to live in and we don’t want to live that way.”

this is, in fact, exactly what the manual does allow. The FBI can investigate anyone simply by invoking the blanket claims that it is “acting to prevent crime, protect national security, or collect foreign intelligence” even where the individuals investigated have no factual connection to the stated purpose of the overall investigation. What this means is that the FBI can investigate anyone in a target’s community. It goes immeasurably beyond the 4th Amendment and its declaration that

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

The FBI also can hold on to any such information, unConstitutionally obtained, even if it is irrelevant to the investigation. That is a hallmark of an out of control intelligence program: the data, even on the innocent, never dies. And while supposedly not the only criteria, ethnic and religious profiling are allowed. From the excesses of J. Edgar Hoover to the abuses uncovered by the Church Commission to the more recent sloppiness with and massive overuse of National Security Letters, the FBI has a long and inglorious history of poor oversight and abuse of any extraordinary power granted it. That these have been codified speaks to how engrained these tendencies are. That the Obama Administration can accept them so readily shows how far we have progressed away from the Constitution and toward a surveillance state.

94. MERS stands for the Mortgage Electronic Registration Systems and it may be what finally blows up the banks. Aid to homeowners was near the bottom of the Bush and Obama Administrations’ list of priorities in dealing with the housing crisis and the financial meltdown, despite the fact that this is where our economic crisis started and where much of its solution must be found. After the hundreds of billions from the TARP and the trillions from various other programs were promised or already delivered to the financial sector, Timothy Geithner announced on February 18, 2009 a $75 billion program to “help” homeowners. The program lacked cramdowns, the only effective way to help underwater homeowners (those whose homes were worth less than the amount oustanding on their mortgages). The program’s size was small in terms of the money, the number of people helped, and in comparison to the aid extended to the banks. It quickly became apparent that the primary purpose of the program was not to help homeowners but to support housing prices as yet another effort to make bank balance sheets look better than they actually were. On April 28, 2009, Geithner announced additions to the program which would reduce the payments on first and second liens but again without reducing the principal. As such, it continued to be a program more about the banks than homeowners. Yes, they might stay in their houses a little longer but their debt situation was not solved. Re-default rates were high. As usual Geithner was focused on the wrong problem.

During the bubble a lot of mortgage writers had not only engaged in fraud but had been incredibly sloppy in their paperwork. This is where MERS came in. It was a private entity used by many banks and mortgage writers as an electronic record for mortgages. The purpose was not high tech but to avoid paying filing fees with county clerks. However banks and companies were bought and sold, failed and merged, sometimes many times. MERS should have kept track of these changes but it is not clear that they did. But there was another more fundamental problem, the securitization process which so many mortgages went through. In it, the promissory note was split off from the mortgage leaving only the tie to the property. These notes were then bundled together and split up in various ways and sold and resold to parties who were interested in the cash flows they represented, and not the actual property except as collateral. Coming up to and after the housing bubble burst, many homeowners were unable to make payments because the terms of their loans changed vastly increasing their monthly payments. Or they had taken out second mortgages on the increased bubble price of their homes and now found they owed far more than their homes were worth. Or as things went on, the prices of housing fell and put them into the same situation. So either because they could not make the payments or it made more sense for them to walk away, the cash flows from the promissory notes were affected. As a result, the holder of these securities wanted the property and initiated foreclosure actions using MERS as their representative. But the securitization process had produced an unintended, but not unforeseeable, Catch-22. A party bringing a foreclosure action must have both parts of the mortgage to have standing, the promissory note (the financial interest) and what I will call the deed (the tie to the property). But this is exactly what the securitization process had split apart. The original holder of the mortgage had no financial interest in the foreclosure, and the promissory note holder had no link to the property. In effect, the promissory note became an unsecured loan, i.e. no longer secured to the property. MERS as a private company was really nothing more than a glorified database. Electronically recording a mortgage with them was not the same as actually making them the holder of the mortgage. So it too had no standing. State courts, like Kansas and New York, have begun picking up on this. This is a well defined body of law that has been around since before the founding of the Republic, and if properly applied, the repercussions will be enormous. Millions of mortgages representing trillions of dollars could fall into this category. Who is responsible and who is liable could literally tear apart what is left of our zombie banking system. Geithner will, no doubt, be one of the last to know.

95. On October 21, 2009, Treasury Secretary Timothy Geithner testified before Congress on his proposals to protect the financial system from systemic risk. What Geithner wanted was what Brad Sherman (D-CA) called “TARP on steroids. In Section 1204 of his proposal Geithner asked for a permanent grant of authority to make unlimited loans without conditions and no oversight to the TBTF (Too Big to Fail) banks to deal with systemic risk. Geithner’s ideas are typically crazy. First, such a grant is unConstitutional. Under Article I Section 8, it is the Congress, not the Executive, which is given the power “to borrow money on the credit of the United States.” Second, this authority would promote the very behavior it seeks to avoid. As we have already seen, the TBTF were bailed out, and this did not cause them to reform their behavior but simply allowed them to return to their highly leveraged speculative activities that much faster. Knowing that they will be bailed out encourages moral hazard by them, and because of their size produces systemic risk, inherently and inevitably. Giving a financial industry sockpuppet like Geithner access to trillions is madness but it is typical, as I said, for him to make such a request. If it is extreme, poorly thought through, and won’t work, that is the hallmark of Timothy Geithner.

96. On October 30, 2009 in federal district court, the Obama Administration invoked the state secrets defense yet again in Shubert v. Obama, a class action lawsuit brought by four New Yorkers alleging that their international communications, and those of other ordinary innocent Americans, were hoovered up by the NSA. Despite his recent anouncement of new guidelines on this defense which preclude its use to shield illegal acts (see item 27), this is precisely what Attorney General Holder is doing. He makes the same tired argument that allowing the suit to go forward would compromise ongoing intelligence operations. In other words, he admits that the government has done and continues to do surveillance relevant to the case, vitiating the state secrets rationale he seeks to invoke. Nor is this state secret all that much of a secret since the December 16, 2005 James Risen and Eric Lichtblau New York Times story (see item 86). Additionally, federal courts know how to deal with, and have dealt with, classified issues in the past. What the Holder Justice Department is seeking is to pre-empt court review and consideration of the legality of Bush, now Obama, Administration surveillance of Americans.

97. On November 2, 2009, in an en banc 7-4 decision the Second Circuit Court of Appeals dismissed Maher Arar’s suit seeking damages from the US government for his arrest and rendition to Syria where he was tortured. Arar had both Canadian and Syrian citizenship. Canada has already paid him reparations for its part in what happened. The court ruled that Congress had never created legislation allowing such a suit. So although the US sent an innocent man to be tortured and imprisoned, Arar is left without recourse, except to appeal to the Supreme Court. The question is not so much a legal but a moral one. Why can’t the Obama Administration apologize to a man so wronged by our government? On June 14, 2010, the Supreme Court denied certiorari for Arar (p.9). The Obama Administration had supported the denial of certiorari.

98. Continuing its anti-reform campaign, on November 3, 2009, the White House through Rahm Emanuel got the House Financial Services committee to agree to an amendment in its “reform” bill which would exempt firms with market caps under $75 million from complying with the auditing provisions of Sarbanes-Oxley (SOX). SOX was enacted in 2004 to prevent the accounting scams which brought Enron and Worldcom down. These firms had been receiving yearly exemptions since 2004 when the bill was enacted. As often happens in our corrupt political culture, Sarbanes-Oxley was a good first step to addressing the Enron fiasco, but rather than building on it, as with limits on executive compensation (to prevent moral hazard and excessive and destructive risk taking), going through the motions of enacting reform was considered by our political Establishment more important than enacting needed reforms. Then as now, real reform efforts quickly petered out or were subverted. Our current economic and financial crisis show why clear and transparent accounting practices are so important. Yet here as with changes in accounting rules to allow mark to model and debt write downs, the Obama Administration has supported measures that allow companies to cook their books. This amendment was originally agreed to by voice vote on November 3 and reconfirmed the next day on November 4, 2009, 37-32. The overall “reform” bill was then passed out of committee 41-28.

99. According to the October 2009 jobs report (released November 6, 2009) from the Bureau of Labor Statistics (BLS), the unemployment rate broke 10 percent (10.2%) for the first time since the recession began in December 2007. To get an idea of the scope of the problem, it is important to understand what the BLS is measuring and how it is measuring it. The BLS tracks both jobs (created or lost) and employment (or unemployment).

The job numbers are based on a “birth-death” model plus sampling. They are projections based on a limited data set and this is why they are revised in succeeding months as more data comes in. “Birth-death” refers to expectations about how new businesses will be created (or old ones lost) and how many jobs they will produce. This has been criticized in the current recession because fewer new businesses have been created than the model predicts and so more jobs have been lost than the figures show. The BLS estimates that it will have to add 824,000 more job losses in its annual revision which will appear in its February 2010 jobs report.

Unemployment figures are based on a Household Survey. The sample size is fairly small so there is a built in error factor that is even larger than for the job numbers. The unemployment rate, as commonly referenced in the press, is the BLS U-3 number. A more complete figure is the U-6 which includes both the unemployed and those who would like to find a full time job but for whatever reason have not found one.

It is important too to note that jobs refers to nonfarm jobs. Farm jobs (and certain other types, such as caregivers) are not included in the counts. On the other hand, those employed refers to anyone 16 or older with a job. This creates a discrepancy of about 7.5 million between what the U-3 and the job numbers are based on.

Since the recession began through October 2009, 7.3 million jobs have been lost, 3.5 million since Obama took office. This does not reflect another 2.76 million jobs needed since December 2007 (120,000/month) to keep up with population growth. Parenthetically, manufacturing jobs, a measure of good paying jobs, decreased under Bush by 26% from 17.1 million in January 2001 to 12.6 million in January 2009. They have declined a further 965,000 under Obama and now account for only 8.9% of US jobs (a 31.8% fall since January 2001). This is an indication too of the rapid de-industrialization of the country, another issue that has not been addressed by the Obama Administration.

As for unemployment, 10.2% is a scary figure. It is even scarier when you consider that it reflects 15.7 million people. Now consider the U-6 which is at 17.5% and represents 27 million Americans who can’t find full time employment. These are vast problems requiring vast solutions. Trillions have gone to unproductive banks to cover their many bad speculations but to make a difference in the lives of tens of millions of Americans all we have seen is a small, poorly constructed stimulus, and a vast silence.

100. In September 2009, the Obama Department of Justice signed off on the Federal Housing Finance agency’s (FHFA) removal of its own Inspector General. The FHFA oversees the receiverships of Fannie and Freddie, which together hold some $6 trillion in home mortgages and purchase or guarantee 80% of home mortgages currently being made. FHFA Inspector General Ed Kelley’s sin was that he was looking into fraud in the the agency’s Make Home Affordable and other foreclosure reduction programs. As we all should know by now, the Obama Administration hates to investigate illegality, its own, its predecessor’s, or any of their cronies.