GOP and Feinstein Join to Fulfill Obama’s Demand for Renewed Warrantless Eavesdropping December 29, 2012Posted by rogerhollander in Barack Obama, Civil Liberties, Constitution, Criminal Justice, Democracy.
Tags: civil liberties, dianne feinstein, glenn greenwald, nsa, Obama, roger hollander, warantless eavesdropping, warrantless wiretapping
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Roger’s note: More Obama hypocrisy and lies.
Published on Friday, December 28, 2012 by The Guardian/UK
The California Democrat’s disgusting rhetoric recalls the worst of Dick Cheney while advancing Obama’s agenda
Democratic Senate Intelligence Committee chair Dianne Feinstein joined with GOP Senator Saxby Chambliss (right) to extend Obama’s warrantless eavesdropping powers. (Photograph: J Scott Applewhite/AP)
by Glenn Greenwald
To this day, many people identify mid-2008 as the time they realized what type of politician Barack Obama actually is. Six months before, when seeking the Democratic nomination, then-Sen. Obama unambiguously vowed that he would filibuster “any bill” that retroactively immunized the telecom industry for having participated in the illegal Bush NSA warrantless eavesdropping program.
But in July 2008, once he had secured the nomination, a bill came before the Senate that did exactly that – the FISA Amendments Act of 2008 – and Obama not only failed to filibuster as promised, but far worse, he voted against the filibuster brought by other Senators, and then voted in favor of enacting the bill itself. That blatant, unblinking violation of his own clear promise – actively supporting a bill he had sworn months earlier he would block from a vote – caused a serious rift even in the middle of an election year between Obama and his own supporters.
Critically, the FISA Amendments Act of 2008 did much more than shield lawbreaking telecoms from all forms of legal accountability. Jointly written by Dick Cheney and then-Senate Intelligence Committee Chair Jay Rockefeller, it also legalized vast new, sweeping and almost certainly unconstitutional forms of warrantless government eavesdropping.
In doing so, the new 2008 law gutted the 30-year-old FISA statute that had been enacted to prevent the decades of severe spying abuses discovered by the mid-1970s Church Committee: by simply barring the government from eavesdropping on the communications of Americans without first obtaining a warrant from a court. Worst of all, the 2008 law legalized most of what Democrats had spent years pretending was such a scandal: the NSA warrantless eavesdropping program secretly implemented by George Bush after the 9/11 attack. In other words, the warrantless eavesdropping “scandal” that led to a Pulitzer Prize for the New York Times reporters who revealed it ended not with investigations or prosecutions for those who illegally spied on Americans, but with the Congressional GOP joining with key Democrats (including Obama) to legalize most of what Bush and Cheney had done. Ever since, the Obama DOJ has invoked secrecy and standing doctrines to prevent any courts from ruling on whether the warrantless eavesdropping powers granted by the 2008 law violate the Constitution.
The 2008 FISA law provided that it would expire in four years unless renewed. Yesterday, the Senate debated its renewal. Several Senators – Democrats Jeff Merkley and Ron Wyden of Oregon along with Kentucky GOP Senator Rand Paul – each attempted to attach amendments to the law simply to provide some modest amounts of transparency and oversight to ensure that the government’s warrantless eavesdropping powers were constrained and checked from abuse.
Just consider how modest these amendments were. Along with Democratic Sen. Mark Udall of Colorado, Sen. Wyden has spent two years warning Americans that the government’s eavesdropping powers are being interpreted (by secret court decisions and the Executive Branch) far more broadly than they would ever suspect, and that, as a result, these eavesdropping powers are being applied far more invasively and extensively than is commonly understood.
As a result, Wyden yesterday had two amendments: one that would simply require the NSA to give a general estimate of how many Americans are having their communications intercepted under this law (information the NSA has steadfastly refused to provide), and another which would state that the NSA is barred from eavesdropping on Americans on US soil without a warrant. Merkley’s amendment would compel the public release of secret judicial rulings from the FISA court which purport to interpret the scope of the eavesdropping law on the ground that “secret law is inconsistent with democratic governance”; the Obama administration has refused to release a single such opinion even though the court, “on at least one occasion”, found that the government was violating the Fourth Amendment in how it was using the law to eavesdrop on Americans.
But the Obama White House opposed all amendments, demanding a “clean” renewal of the law without any oversight or transparency reforms. Earlier this month, the GOP-led House complied by passing a reform-free version of the law’s renewal, and sent the bill Obama wanted to the Senate, where it was debated yesterday afternoon.
The Democratic Chair of the Senate Intelligence Committee, Dianne Feinstein, took the lead in attacking Wyden, Merkley, Udall and Paul with the most foul Cheneyite accusations, and demanded renewal of the FISA law without any reforms. And then predictably, in virtually identical 37-54 votes, Feinstein and her conservative-Democratic comrades joined with virtually the entire GOP caucus (except for three Senators: Paul, Mike Lee and Dean Heller) to reject each one of the proposed amendments and thus give Obama exactly what he demanded: reform-free renewal of the law (while a few Democratic Senators have displayed genuine, sustained commitment to these issues, most Democrats who voted against FISA renewal yesterday did so symbolically and half-heartedly, knowing and not caring that they would lose as evidenced by the lack of an attempted filibuster).
In other words, Obama successfully relied on Senate Republicans (the ones his supporters depict as the Root of All Evil) along with a dozen of the most militaristic Democrats to ensure that he can continue to eavesdrop on Americans without any warrants, transparency or real oversight. That’s the standard coalition that has spent the last four years extending Bush/Cheney theories, eroding core liberties and entrenching endless militarism: Obama + the GOP caucus + Feinstein-type Democrats. As Michelle Richardson, the ACLU’s legislative counsel, put it to the Huffington Post: “I bet [Bush] is laughing his ass off.”
But what’s most remarkable here is not so much what happened but how it happened. When Obama voted in 2008 to massively increase the government’s warrantless eavesdropping powers, I so vividly recall his supporters insisting that he was only doing this because he wanted to win the election, and then would get into power and fix these abuses by reversing them. Yes, there were actually large numbers of people who believed this. And they were encouraged to believe this by Obama himself, who, in explaining his 2008 vote, said things like this:
“I know that the FISA bill that passed the House is far from perfect. I wouldn’t have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush’s abuse of executive power. . . .
I do so [vote for the FISA bill] with the firm intention – once I’m sworn in as president – to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.”
Needless to say, none of that ever happened. Now, the warrantless eavesdropping bill that Obama insisted was plagued by numerous imperfections is one that he is demanding be renewed without a single change. Last week, Marcy Wheeler documented the huge gap between (a) what Obama vowed he would do when he voted for this law in 2008 versus (b) what he has actually done in power (they’re opposites).
Indeed, when it came time last year to vote on renewal of the Patriot Act – remember how Democrats used to pretend during the Bush years to find the Patriot Act so alarming? – the Obama administration also demanded its renewal without a single reform. When a handful of Senators led by Rand Paul nonetheless proposed modest amendments to eliminate some of the documented abuses of the Patriot Act, Democratic majority leader Harry Reid did his best Dick Cheney impression by accusing these disobedient lawmakers of risking a Terrorist attack by delaying renewal:
“When the clock strikes midnight tomorrow, we will be giving terrorists the opportunity to plot against our country undetected. The senator from Kentucky is threatening to take away the best tools we have for stopping them.
“We all remember the tragic Fort Hood shootings less than two years ago. Radicalized American terrorists bought guns and used them to kill 13 civilians [by "civilians", Reid means: members of the US military]. It is hard to imagine why the senator would want to hold up the Patriot Act for a misguided amendment that would make American less safe.”
In other words: if you even try to debate the Patriot Act or add any amendments to it, then you are helping the Terrorists: classic Dick Cheney. (Democratic Sen. Udall defended Paul from Reid’s disgusting attack: “This is not a Patriot Act. Patriots stand up for the Constitution. Patriots stand up for freedom and liberty that’s embodied in the Constitution. And I think true patriots, when they’re public servants, public servants stand up and do what’s right, even if it’s unpopular”).
Yesterday, I watched as Dianne Feinstein went well beyond Harry Reid’s disgusting Cheneyite display. Feinstein is one of the Senate’s richest plutocrats, whose husband, Richard Blum, has coincidentally been quite enriched by military and other government contracts during her Senate career. During this time, Feinstein has acted as the most faithful servant in the Senate of the National Security State’s unchecked, authoritarian power.
Yesterday, Feinstein stood up on the Senate floor and began by heaping praise on her GOP comrade, Sen. Saxby Chambliss of Georgia, for leading his caucus to join her in renewing the FISA act without any reforms. She then unleashed a vile attack on her Democratic colleagues – Wyden, Merkley, and Udall, along with Paul – in which she repeatedly accused them of trying to make the nation vulnerable to a Terrorist attack.
Feinstein insisted that one could support their amendments only if “you believe that no one is going to attack us”. She warned that their amendments would cause “another 9/11″. She rambled about Najibullah Zazi and his attempt to detonate a bomb on the New York City subway: as though a warrant requirement, let alone disclosure requirements for the eavesdropping program, would have prevented his detection. Having learned so well from Rudy Giuliani (and Harry Reid), she basically just screamed “Terrorist!” and “9/11″ over and over until her time ran out, and then proudly sat down as though she had mounted rational arguments against the transparency and oversight amendments advocated by Wyden, Merkley, Udall and Paul.
Even more notably, Feinstein repeatedly argued that requiring even basic disclosure about the eavesdropping program – such as telling Americans how many of them are targeted by it – would, as she put it, “destroy the program”. But if “the program” is being conducted properly and lawfully, why would that kind of transparency kill the program? As the ACLU’s Richardson noted: “That Sen. Feinstein says public oversight will lead to the end of the program says a lot about the info that’s being hidden.” In response to her warnings that basic oversight and transparency would destroy the program, Mother Jones’ Adam Serwer similarly asked: “Why, if it’s all on the up and up?”
All of this was accomplished with the core Bush/Cheney tactic used over and over: they purposely waited until days before the law is set to expire to vote on its renewal, then told anyone who wants reforms that there is no time to consider them, and that anyone who attempted debate would cause the law to expire and risk a Terrorist attack. Over and over yesterday, Feinstein stressed that only “four days remained” before the law expires and that any attempts even to debate the law, let alone amend it, would leave the nation vulnerable.
It’s hard to put into words just how extreme was Feinstein’s day-long fear-mongering tirade. “I’ve never seen a Congressional member argue so strongly against Executive Branch oversight as Sen. Feinstein did today re the FISA law,” said Micah Zenko of the Council on Foreign Relations. Referring to Feinstein’s alternating denials and justifications for warrantless eavesdropping on Americans, the ACLU’s Jameel Jaffer observed: “This FISA debate reminds of the torture debate circa 2004: We don’t torture! And anyway, we have to torture, we don’t have any choice.”
Jaffer added that Feinstein’s strident denials that secret warrantless eavesdropping poses any dangers “almost makes you nostalgic for Ashcroft’s ‘phantoms of lost liberty’ speech” – referring to the infamous 2001 decree from Bush’s Attorney General:
“To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists for they erode our unity and diminish our resolve. They give ammunition to America’s enemies and pause to America’s friends.”
That is exactly the foul message which Dianne Feinstein, doing the bidding of the Obama White House, spewed at her liberal Senate colleagues (and a tiny handful of Republicans) for the crime of wanting to bring some marginal transparency and oversight to the warrantless eavesdropping powers with which Obama vested himself when voting in 2008 for that FISA law. As it turns out, Yale Law Professor Jack Balkin had it exactly right in mid-2008 when explaining – in the face of lots of progressive confusion and even anger – why Obama decided to support a FISA bill that vested the executive with massive unchecked eavesdroppoing power: namely, Obama “plans to be the executive”, so “from Obama’s perspective, what’s not to like?”
Just four or five years ago, objections to warrantless eavesdropping were a prime grievance of Democrats against Bush. The controversies that arose from it were protracted, intense, and often ugly. Progressives loved to depict themselves as stalwartly opposing right-wing radicalism in defense of Our Values and the Constitution.
Fast forward to 2012 and all of that, literally, has changed. Now it’s a Democratic President demanding reform-free renewal of his warrantless eavesdropping powers. He joins with the Republican Party to codify them. A beloved Democratic Senator from a solidly blue state leads the fear-mongering campaign and Terrorist-enabling slurs against anyone who opposes it. And it now all happens with virtually no media attention or controversy because the two parties collaborate so harmoniously to make it happen. And thus does a core guarantee of the founding – the search warrant requirement of the Fourth Amendment – blissfully disappear into nothingness.
Here we find yet again a defining attribute of the Obama legacy: the transformation of what was until recently a symbol of right-wing radicalism – warrantless eavesdropping – into meekly accepted bipartisan consensus. But it’s not just the policies that are so transformed but the mentality and rhetoric that accompanies them: anyone who stands in the way of the US Government’s demands for unaccountable, secret power is helping the Terrorists. “The administration has decided the program should be classified”, decreed Feinstein, and that is that.
In 2005, the Bush White House invoked the “very bad guy” defense to assure us that we need not worry about the administration’s secret warrantless eavesdropping program; as a Bush White House spokesman put it:
“This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches.”
In 1968, Nixon Attorney General John Mitchell similarly told the public in the face of rising concerns over government eavesdropping powers that “any citizen of this United States who is not involved in some illegal activity has nothing to fear whatsoever.” That is the noble tradition which the Obama White House, Dianne Feinstein and their GOP partners are continuing now.
© 2012 Guardian News and Media Limited
Glenn Greenwald is a columnist on civil liberties and US national security issues for the Guardian. A former constitutional lawyer, he was until 2012 a contributing writer at Salon. His most recent book is, With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful. His other books include: Great American Hypocrites: Toppling the Big Myths of Republican Politics, A Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism.
Obama’s Unprecedented Use of State Secrets to Defend Religious Profiling September 8, 2011Posted by rogerhollander in Civil Liberties, Criminal Justice, Racism, Religion, Uncategorized.
Tags: aclu, agent provocateur, asraa mustufa, black sites, civil liberties, eric holder, fbi agent, fbi spy, first amendment, muslim, muslim american, national security, nypd racism, obama administration, obama doj, racial profiling, racism, rendition, roger hollander, state secrets, torture, warrantless wiretapping
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Published on Thursday, September 8, 2011 by Colorlines
In the summer of 2006, a French Syrian man known as Farouk al-Aziz publicly converted to Islam in front of a Friday prayer congregation at a large mosque in Irvine, Calif. Mosque leadership and attendants were quick to embrace al-Aziz as a new member of their faith. The Islamic center’s imam asked a congregant to teach al-Aziz how to pray, and he quickly became a regular attendee at the mosque in Irvine and others in Orange County.
Photo: Kevork Djansezian/Getty Images
However, community members soon became wary of al-Aziz. He would often sit in on groups, listening to other Muslim congregants’ conversations within the mosque, at family picnics or at a local gym. Most troubling to other attendees was his frequent, unusual questions about a violent form of jihad. Community members say when al-Aziz began implying that he was contemplating violent action, boasting he knew where to get weapons and trying to gather people in a plot, congregants quickly brought the issue to the attention of mosque leadership. They obtained a restraining order against him and reached out to the local chapter of the Council on American-Islamic Relations, which helped them report al-Aziz’s actions to the FBI.
As it turned out, the FBI was already well aware of al-Aziz’s activities at the mosque—they had in fact sent him there. He was one of thousands of informants the FBI has used since 9/11 to spy upon Muslim American communities and concoct terrorism plots inside them. The practice has drawn attention from news media and civil liberties advocates in recent years, and Muslim American community leaders are organizing to demand its end. But one huge, unexpected hurdle now stands in the way: The Obama administration’s invocation of a national security provision that makes it impossible for communities and individuals to protect their rights through lawsuits.
The provision, known as the state secrets privilege, permits the government to block discovery in a lawsuit of any information that, if disclosed, could adversely affect national security or foreign relations. President Obama vowed while campaigning that he’d end its use. Instead, his administration has not only continued invoking it, but has done so in a previously unprecedented way in order to protect legally questionable surveillance of Muslim American communities.
President Obama’s Privileged Secrets
Al-Aziz’s name was actually Craig Monteilh, and he was a paid informant working for the FBI. Monteilh, who was profiled in a Mother Jones investigation into the FBI’s spying program this month, had worked with the bureau for several years. He fell out with the FBI after he was convicted of grand theft in 2007 and his role as an informant was revealed in court documents. Monteilh filed suit against the FBI and went public about his activities as an informant—including that he was instructed to infiltrate southern Californian mosques and spy on worshippers.
Earlier this year, Muslim community advocates responded with a lawsuit of their own. In Fazaga v. FBI, the American Civil Liberties Union of Southern California and the Los Angeles chapter of CAIR allege that by indiscriminately surveilling several southern Californian mosques and collecting information on hundreds, perhaps thousands, of law-abiding American Muslims, the FBI violated their constitutional rights. In addition to Monteilh’s reports of the instructions he received from the FBI, attorneys on the case say that the numerous accounts of Muslim community members who came in contact with Monteilh, as well as some FBI guidelines themselves, all strongly indicate that the FBI’s targeting of mosques was based on religion alone, rather than on following leads or indications of unlawful activity.
Last month, the Obama administration invoked the state secrets privilege in an effort to have the suit dismissed. In the filing, Attorney General Eric Holder said that the Justice Department cannot allow the case to be litigated, because it would lead to the disclosure of sensitive information, which could in turn “reasonably be expected to cause harm to national security.”
The Bush administration infamously expanded the use of the state secrets doctrine, frequently invoking it to have entire lawsuits dismissed, rather than employing it to have individual pieces of evidence excluded from court, as it had been used in the past. As a candidate, President Obama criticized his predecessor’s repeated use of the privilege “to get cases thrown out of civil court.” Since taking office, however, Obama’s Justice Department has done the exact same thing.
The Obama administration has continued to assert the state secrets privilege in lawsuits still pending from the Bush years, on cases involving warrantless wiretapping, detention, torture and rendition of terrorism suspects at CIA black sites. And the administration has been successful in getting lawsuits dismissed on those grounds. The Obama Justice Department has also asserted the privilege in a lawsuit over the government’s right to target and kill suspected terrorists, including U.S. citizens, outside a war zone and absent an imminent threat to national security.
Both administrations’ use of the privilege to cover up questionable government behavior is not unprecedented. Indeed, in the landmark 1953 Supreme Court case United States v. Reynolds, the government invoked the state secrets privilege to circumvent the disclosure of an accident report in a wrongful death action involving the military. The court bought the government’s argument, but when the document was declassified in 2004, it was found to contain no sensitive information about national security whatsoever. Rather, it contained information proving government negligence.
The Obama administration’s invocation of the state secrets privilege, however, is unprecedented, transparency advocates assert. In previous and ongoing suits where the doctrine has been invoked, plaintiffs were seeking damages for a past violation of rights; the constitutional violations described in the Fazaga v. FBI are ongoing.
“The biggest difference is that here we have an ongoing constitutional violation against American citizens on American soil, and if courts can dismiss challenges to such ongoing violations on the grounds that…the program is secret, then that’s fundamentally inconsistent with very basic structural protections we have in our democratic function of government,” said Ahilan Arulanantham, deputy legal director of ACLU in southern California and a lead attorney on the case. “Our system virtually never allows the courthouse doors to be closed to an ongoing violation of the Constitution.”
Arulanantham also argues the government’s claim that sensitive national security information is at risk doesn’t hold up, given how widely reported Monteilh’s informant activities in “Operation Flex” have been. “There is nothing secret about the fact that the FBI was employing Craig Monteilh and that he surveiled hundreds or thousands of Muslims and gathered information on them.”
Since the lawsuit was filed, further evidence has emerged of similarly indiscriminate surveillance practices. When the northern California chapter of the ACLU and the Asian Law Caucus filed a Freedom of Information Act request about government surveillance of American Muslim communities, they obtained a PowerPoint presentation used by the FBI to train new recruits. The presentation included estimates of the number of mosques in America, and listed states with the largest Muslim populations. It also presented a troubling and simplistic depiction of Muslims and Arabs, and highlighted the work of career Islamophobe Robert Spencer in its recommended reading list.
NYPD Conducting Similar Surveillance
The FBI’s not the only agency snooping on Muslim Americans, though. Late last month, the Associated Press published an investigation on the New York Police Department’s covert surveillance of Muslims communities. The article, based on interviews with over 40 current and former NYPD and federal officials, detailed the aggressive practices of the agency’s domestic intelligence gathering operation. According to the AP’s findings, the NYPD, with much help from the CIA, used undercover officers to map and monitor Muslim-populated immigrant and black Muslim neighborhoods in and beyond the city, and dispatched informants to monitor sermons delivered at mosques and Muslim student groups, without any prior indication of unlawful behavior. The revelations came as little surprise to Muslim civil liberties groups, as such activities by the NYPD have long been widely reported by community members and documented by advocates, as well as by official testimony.
“There was already a picture being painted of the way this program was playing out in local communities. What we didn’t know and was the most troubling about the report was how deep and how normalized this program has become,” said Cyrus McGoldrick, civil rights manager at the New York chapter of CAIR.
Earlier this year, the Village Voice found that the NYPD had also screened the anti-Islamic hate film “The Third Jihad”—which describes Islam as a threat to the U.S. and was made by the Clarion Fund—at a mandatory counter-terrorism course for officers.
McGoldrick said civil liberties advocates are demanding a federal investigation of the CIA’s involvement as well as investigations by local officials. The NYPD maintains that the CIA’s role in the surveillance is merely advisory.
Community organizations are also trying to equip Muslim Americans with resources to protect themselves from the police department’s profiling. The group Desis Rising Up & Moving (DRUM), which works with low-income South Asian and Muslim immigrants in New York City, is planning a citywide survey to collect information on law enforcement interactions with the Muslim community.
Meanwhile, advocates warn that the all of this surveillance has created a sense of mistrust within communities. “People don’t speak freely anymore, people don’t feel comfortable engaging in candid conversations,” said Ameena Mirza Qazi, deputy executive director of CAIR’s L.A. chapter and an attorney for the plaintiff in the Fazaga lawsuit.
“The mosque is a building, but it’s about the community,” Qazi said. “To have the government come and disrupt that, that’s a very clear violation of our First Amendment freedom to practice our religion as we wish.”
A Wrong Headed Approach?
Aside from being predatory and potentially illegal, unwarranted surveillance is self-defeating, Muslim leaders say.
“This isn’t a program that makes us safer. This is a program that is investigating communities and not crimes,” McGoldrick said about the NYPD’s infiltration of Muslim communities via informants. “Instead of stopping crimes, they’re manufacturing crimes and they’re creating the images of crimes, and really just alienating an entire community that’s been nothing but supportive and has been at the lead of policing our own communities since 9/11 and before.”
Qazi had similar sentiments about how these revelations affect Muslim communities’ relationship with law enforcement. “If you’re treating us as suspects, how can we trust that you’ll treat us as partners?” she said, also pointing out that Muslims in southern California immediately alerted authorities when Monteilh began speaking about violent activity. “His role as an agent provocateur didn’t last very long because he was cut short by Muslim community members themselves.”
Yet, techniques like unwarranted surveillance, highly paid informants and questionable sting operations draw huge amounts of funding for the FBI and NYPD. According to Mother Jones, the FBI’s counter-terrorism budget stands at $3.3 billion, and as a whole, the agency spends more on hunting potential threats to national security than on chasing “ordinary criminals,” the New York Times recently found. The AP reports that the NYPD has received more than $1.6 billion from the federal government since 9/11, with little oversight from external authorities.
In counterterrorism, law enforcement relies heavily on informants, some recruited from Muslim communities under the pressure of threatened immigration troubles or past criminal infractions, as the targets of informants account for roughly half of defendants in domestic terror prosecutions to date, Mother Jones’ investigation found. Some advocates question whether the agencies are more interested in using funds to produce terrorism arrests and convictions than on addressing an existing national security threat.
“There is incredible pressure on law enforcement to prevent attacks…if you are able to lead somebody into a plot, you then have a success. You have made a counter terrorism case, you made an arrest, and you will most likely get a conviction, and all of that plays into how funds are allocated and how different agencies are perceived,” said Faiza Patel, the co-director of the Liberty and National Security Program at the Brennan Center for Justice.
Patel has written widely on the theory of “radicalization” embraced by different law enforcement agencies (and some politicians), a main aspect of which includes an understanding that certain interpretations or expressions of Islam consistently lead to acts of violence. Such thinking is espoused in a 2007 report the NYPD published on homegrown terrorism, which listed signs of “radicalization” such as regular attendance at mosques, giving up cigarettes, drinking gambling, and the wearing of “urban hip-hop gangster clothes,” or wearing Islamic clothing, growing a beard and even becoming involved in social activism.
“If you think there’s this religious conveyer belt leading to terrorism, then you think it’s useful to see what people are saying and doing in their practice of religion, and that leads you into surveillance of mosques and bookstores and community centers,” Patel said.
The NYPD report might point to a more fundamental problem underlying law enforcement’s treatment of Muslim communities: The view of basic practices of the Islamic faith, including congregation, as indications of potential danger undermines the standing of American Muslims as a group deserving the same social protections as everybody else.
“Look, we’ve had a consensus I think in this country that racial profiling is wrong,” Patel said. “What we don’t somehow seem to have a consensus about is whether or not that rule applies to national security cases, and whether or not that rule applies to things such as religion or ethnicity.”
Asraa Mustufa is a regular contributor to Colorlines.com and a research intern at the Applied Research Center, which publishes Colorlines.
The Day of the Dead May 26, 2009Posted by rogerhollander in Civil Liberties, Criminal Justice, Democracy, Iraq and Afghanistan, War.
Tags: Afghanistan War, bill of rights, Casey Sheehan, Cindy Sheehan, free speech, free speech zones, freedom, Iraq, Iraq war, iraqi dead, memorial day, military industrial complex, obama war crimes, patriotism, roger hollander, U.S. imperialism, War Crimes, warrantless wiretapping
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Monday 25 May 2009, www.truthout.org
I was on an airplane flying to Orange County from Sacramento to attend the al-Awda Conference, which is a Palestinian Right’s Conference (al-Awda translates to “The Returning”), when the pilot’s voice filled the cabin to make an announcement that I think went unnoticed by most of my fellow passengers, but I heard it.
As the plane was on the approach to John Wayne airport, the Captain came on the intercom to remind us all to “remember our brave troops who have died for our freedom.” Even in this post 9-11 paranoid paradigm, if I wasn’t belted in for landing, I would have popped out of my seat at 13D and charged up to the cockpit to let the pilot know that my son was killed in Iraq and not one person anywhere in this world is one iota more free because he is dead.
As a matter of fact, the people of Iraq, the foreign country thousands of miles away where my oldest child’s brains, blood and life seeped into the soil, are not freer, unless one counts being liberated from life, liberty and property being free. If you consider torture and indefinite detention freedom, then the pilot may have been right, but then again, even if you do consider those crimes freedom, it does not make it so.
Here in America we are definitely not freer because my son died, as a matter of fact, our nation can spy on us and our communications without a warrant or just cause, and we can’t even bring a 3.6 ounce bottle of hand cream into an airport, or walk through a metal detector with our shoes on. Even if we do want to exercise our Bill of Rights, we are shoved into pre-designated “free speech” zones (NewSpeak for; STFU, unless you are well out of the way of what you want to protest and shoved into pens like cattle being led to slaughter), and oftentimes brutally treated if we decide we are entitled to “free speech” on every inch of American soil.
If you watch any one of the cable news networks this weekend between doing holiday weekend things, you will be subjected to images of row upon row of white headstones of dead US military lined up in perfect formation in the afterlife as they were in life. Patriotic music will swell and we will be reminded in script font to “Remember our heroes,” or some such BS as that.
Before Casey was killed, a message like that would barely register in my consciousness as I rushed around preparing for Casey’s birthday bar-be-que that became a family tradition since he was born on Memorial Day in 1979. If I had a vision of how Memorial Day and Casey’s birthday would change for my family, I would have fled these violent shores to protect what was mine, not this murderous country’s. Be my guest; look at those headstones with pride or indifference. I look at them now with horror, regret, pain and a longing for justice.
I can guarantee what you won’t see this holiday weekend are images of the over one million Iraqi dead. Say we assign, in an arbitrary way for purely illustrative purposes, an average height of five feet for every person killed in Iraq and then line those people up from head to toe. That gruesome line would stretch from Los Angeles to Portland, Oregon… 950 driving miles up Interstate 5. If we count the Iraqis who have been forced to flee, we would have to go back and forth between Los Angeles and Portland another four times.
There are obscene amounts of people who have been slaughtered for the US Profit Driven Military Empire who do not count here in America on any day. People in Vietnam are still dying from the toxins dumped on their country by the US, not to mention the millions who died during that war. Let the carnage escalate in Afghanistan while we protect our personal images by turning a blind eye to Obama’s war crimes. Are you going to feel a lump of pride in your bosom when the coffins start to be photographed at Dover for this imperial crime of aggression? Will you look at those flag-draped boxes of the lifeless body of some mother’s child and think: “Now, I am free.” Is it better to be dead when Obama is president?
A tough, but real, aspect of this all to consider is, how many of the soldiers buried in coffins in military cemeteries killed or tortured innocent people as paid goons for the Empire? To me, it is deeply and profoundly sad on so many levels. If I have any consolation through all of this, I learned that my son bravely refused to go on the mission that killed him, but he was literally dragged into the vehicle and was dead minutes later – before he was forced to do something that was against his nature and nurture.
Casey will always be my hero, but he was a victim of US Imperialism and his death should bring shame, not pride, as it did not bring freedom to anyone. I will, of course, mourn his senseless death on Memorial Day as I do every day.
However, we do not need another day here in America to glorify war that enables the Military Industrial Complex to commit its crimes under the black cloak of “Patriotism.”
From Palestine to Africa to South America, our quest for global economic domination kills, sickens, maims or oppresses people on a daily basis, and about 25,000 children per day die of starvation. I am not okay with these facts and I am not proud of my country.
I will spend my reflective time on Memorial Day to mourn not only the deaths of so many people all over the world due to war, but mourn the fact that they are the unseen and uncared for victims of US Empire.
Cindy Sheehan is the mother of Spc. Casey Sheehan, who was killed in Bush’s war of terror on 04/04/04. She is the co-founder and president of Gold Star Families for Peace and the Camp Casey Peace Institute. She is the author of three books; the most recent is “Peace Mom: A Mother’s Journey Through Heartache to Activism.” Following an unsuccessful challenge to House Speaker Nancy Pelosi, Sheehan launched a radio show on 960AM in the San Fransisco Bay Area that can also be heard on Soapbox.com.
The Obama Dystopia May 25, 2009Posted by rogerhollander in Uncategorized.
Tags: Afghanistan, Alberto Gonzales, andrew hughes, bailout, bush administration, bush crimes, change, cyberterrorism, foreclosures, Guantanamo, illegal surveillance, Iraq, john yoo, military commissions, muslim world, new world order, Obama, pakistan bombs, pakistan killng, patriot act, roger hollander, torture, unemployment, Wall Street, War Crimes, warrantless wiretapping
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www.opednews.com, May 25, 2009
After 8 years of the Bush-Cheney nightmare during which we saw the wanton destruction of Afghanistan and Iraq, the cynical negation of centuries of Law designed to protect the most basic human rights and a foreign policy worthy of Genghis Khan, there came along the “Great Black Hope” in the persona of Barack Obama. The collective world consciousness turned uncritically to what was presented as a new era for peace, change and trust in Government.
Never before had one witnessed such an accomplished use of manipulation, propaganda, deceptive imagery and public relations wizardry to sell the public a man who was to take the baton from Bush and run with it in the race to destroy the economy, the rights of the people and help birth a nation totally controlled by those who have always lurked in the shadows of power. “Change” was promised and was delivered in the form of a deepening of the already Dystopic nightmare.
Promises were broken with no apology, the same creative legalese that infested the Bush administration, in the form of John Yoo and Alberto Gonzalez, was again used to deny justice to the inmates of Guantanamo, It was used to justify more torture, more destruction of the Constitution and more illegal surveillance of U.S. citizens.
The President that extended the hand of peace to the Muslim world has murdered hundreds of Pakistani men, women and children. The President who promised accountability in Government has filled his staff with lobbyists, banksters and warmongers. His Attorney General refuses to prosecute some of the worst war crimes committed in modern history and continues to give legal cover to criminals who tortured with impunity.
The country has been further bankrupted by the continuing theft of taxpayer money as the Wall St. campaign donors receive their quid pro quo. Obama has stood by idly as Bernancke states that the private Federal Reserve is not answerable to either Congress or the American public. The U.S. taxpayer is now on the hook for $14.3 Trillion and rising. Foreclosures and unemployment are mounting with no meaningful efforts by the administration to alleviate the symptoms, never mind the cause. The new image of America is one of tent cities, lengthening soup kitchen lines, sherrifs evicting countless thousands of young and old from their homes, once prosperous towns descending in to an eerie stillness and an increasingly disillusioned populace.
The “War on terrorism” has mutated in to a control grid for an increasingly aware population. The foundation for this had already been put in place by Bush with the Patriot Act, Patriot Act 2, Military commissions act and numerous executive orders that strangled what was left of Posse Comitatus and the Constitution.
Homeland Security now defines “Terrorists” as those who believe in the Constitution, the first, second and fourth amendments. Returning veterans are being targeted for a denial of their second amendment rights. A “Terrorist Watchlist” of more than a million and rapidly growing, is being used as the basis for denying citizens the rights to travel and to work.
Obama is now mulling over the idea of indefinite detention without trial for U.S. citizens. This, from a teacher of the Constitution ! Bills are in congress to criminalize free speech on the Internet via the Cyberbullying Act which will make hurting somebody’s feelings a felony. Just as the Patriot Act morphed in to a mechanism to subdue the U.S. population, the Cyberbullying Act will be subverted to criminalize political free speech and any criticism of the Government.
“Cyberterrorism” is being used as a pretext to bring government regulation to the the last stronghold of unbiased information. Washington has realized that it’s getting harder to get away with their Fascist agenda and are moving to control the field. The populace are beginning to realize just what kind of “Change” Obama intended to deliver.
There has been growing resistance on a state level with several invoking their 9th and 10th Amendment rights in a valiant attempt to stop the Federal Vampire from draining the last drops of blood, the last vestiges of Freedom and Hope.
This is the Dystopic Nightmare that America finds itself in today and each day brings new assaults on Freedom and Sanity. The framework for total control of the citizenry, the economy and the media is being built upon in a relentless aggrandization of Govermental power. Obama sits atop his new Empire still smiling that sickeningly disingenuous smile surrounded by his seasoned courtiers who have worked for decades to hijack America and steer it towards this New World Order.
Tags: Abu Ghraib, aclu, amrit singh, anti-American sentiment, bagram, beltway, Bill Kristol, binyam mohamed, bush crimes, cia interrogation, doj, foia, freedom of information, geneva conventions, glenn greenwald, Guantanamo, International law, justice department, max boot, michael goldfarb, national security, nuremburg, obama administration, obama cover-up, obama coverup, olc torture memos, rendition, roger hollander, torture, torture memos, torture photos, torture techniques, torture videos, un convention, War Crimes, warrantless wiretapping, waterboarding
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It’s difficult to react much to Obama’s complete reversal today of his own prior decision to release photographs depicting extreme detainee abuse by the United States. He’s left no doubt that this is what he does: ever since he was inaugurated, Obama has taken one extreme step after the next to keep concealed both the details and the evidence of Bush’s crimes, including rendition, torture and warrantless eavesdropping. The ACLU’s Amrit Singh — who litigated the thus-far-successful FOIA lawsuit to compel disclosure of these photographs — is exactly right:
The reversal is another indication of a continuance of the Bush administration policies under the Obama administration. President Obama’s promise of accountability is meaningless, this is inconsistent with his promise of transparency, it violates the government’s commitment to the court. People need to examine these abusive photographs, but also the government officials need to be held accountable.
Andrew Sullivan, one of Obama’s earliest and most enthusiastic supporters, wrote of today’s photograph-concealment decision and yesterday’s story of Obama’s pressuring Britain to conceal evidence of Binyam Mohamed’s torture:
Slowly but surely, Obama is owning the cover-up of his predecessors’ war crimes. But covering up war crimes, refusing to prosecute them, promoting those associated with them, and suppressing evidence of them are themselves violations of Geneva and the UN Convention. So Cheney begins to successfully coopt his successor. . .
From extending and deepening the war in Afghanistan, to suppressing evidence of rampant and widespread abuse and torture of prisoners under Bush, to thuggishly threatening the British with intelligence cut-off if they reveal the brutal torture inflicted on Binyam Mohamed, Obama now has new cheer-leaders: Bill Kristol, Michael Goldfarb and Max Boot. . . .
Those of us who held out hope that the Obama administration would not be actively covering up the brutal torture of a Gitmo prisoner who was subject to abuse in several countries must now concede the obvious. They’re covering it up – in such a crude and obvious fashion that it is actually a crime in Britain.
John Aravosis said Obama’s logic was “a bit Bushian.” Steve Hynd observes that “Obama Trades Our Principles For Cheneyism.” TPM decalres: ”Obama falls back on Bushisms.” Dan Froomkin writes: ”Obama Joins the Cover-Up.” I’ll just note a few points for now about Obama’s efforts to keep these photographs concealed:
(1) Think about what Obama’s rationale would justify. Obama’s claim — that release of the photographs “would be to further inflame anti-American opinion and to put our troops in greater danger” — means we should conceal or even outright lie about all the bad things we do that might reflect poorly on us. For instance, if an Obama bombing raid slaughters civilians in Afghanistan (as has happened several times already), then, by this reasoning, we ought to lie about what happened and conceal the evidence depicting what was done — as the Bush administration did — because release of such evidence would “would be to further inflame anti-American opinion and to put our troops in greater danger.” Indeed, evidence of our killing civilians in Afghanistan inflames anti-American sentiment far more than these photographs would. Isn’t it better to hide the evidence showing the bad things we do?
Apparently, the proper reaction to heinous acts by our political leaders is not to hold them accountable but, instead, to hide evidence of what they did. That’s the warped mentality Obama is endorsing today, and has been endorsing since January 20.
(2) How can anyone who supports what Obama is doing here complain about the CIA’s destruction of their torture videos? The torture videos, like the torture photos, would, if released, generate anti-American sentiment and make us look bad. By Obama’s reasoning, didn’t the CIA do exactly the right thing by destroying them?
(3) This is just another manifestation of the generalized Beltway religion that we should suppress and ignore the heinous acts our government committed and to which we acquiesced, because if we just agree to forget about all of it, then we can blissfully pretend that it never happened and avoid doing anything about it.
(4) Obama’s claim that he has to hide this evidence to protect our soldiers is the sort of crass, self-serving exploitation of “The Troops” which was the rancid hallmark of Bush/Cheney rhetoric. Everyone knows what the real effect of these photographs would be: they would highlight just how brutal and criminal was our treatment of detainees in our custody, and further underscore how amoral and lawless are Obama’s calls that we Look To the Future, Not the Past. Manifestly, that is why they’re being suppressed.
(5) For all of you defend-Obama-at-all-cost cheerleaders who are about to descend into my comment section and other online venues to explain how Obama did the right thing because of National Security, I have this question: if you actually want to argue that concealing these photographs is the right thing to do, then you must have been criticizing Obama when, two weeks ago, he announced that he would release them. Otherwise, it’s pretty clear that you don’t have any actual beliefs other than: ”I support what Obama does because it’s Obama who does it.” So for those arguing today that concealing these photographs is the right thing to do: were you criticizing Obama two weeks ago for announcing he would release these photographs?
Also, the OLC torture memos released several weeks ago surely increased anti-American sentiment. Indeed, those on the Right who objected to the release of those memos cited exactly that argument. How can anyone cheer on Obama’s decision today to conceal these photographs while also cheering on his decision to release the OLC memos? Those who have any intellectual coherence would have to oppose both or support both. Those two decisions only have one fact in common: Obama made them. Thus, the only way to cheer on both decisions is to be guided by the modified Nixonian mantra: what Obama does is right because Obama does it.
Also, during the Bush years, were you — along with Bill Kristol and National Review — attacking the ACLU and Congressional Democrats for demanding that the Bush administration stop concealing evidence of its torture, on the ground that disclosure of such evidence would harm America’s national security? Were you defending Bush then for doing what Obama is doing now?
(6) If these photographs don’t shed any new light on what our Government did — if all they do is replicate what we already know from the Abu Ghraib photographs — then how can it possibly be the case that they will do any damage? To argue that they will harm how we are perceived is, necessarily, to acknowledge that they reveal new information that is not already widely known.
(7) We are supposed to have what is called Open Government in the United States. The actions of our government — and the evidence documenting it — is presumptively available to the public. Only an authoritarian would argue that evidence of government actions should be kept secret in the absence of a compelling reason to release it.
The presumption is the opposite: documents in the government’s possession relating to what it does is presumptively public in the absence of compelling reasons to keep it concealed. That the documents reflect poorly on the government is not such a reason to keep them concealed. If it were, then it would always be preferable to have political leaders cover-up their crimes on the ground that disclosing them would reflect poorly on the U.S. and spur anti-American sentiment. Open government is necessary precisely because only transparency deters political leaders from doing heinous acts in the first place.
UPDATE: Here (.pdf) is the letter the DOJ sent to the court this afternoon, advising the judge that they changed their minds “at the highest levels of Government” and would not, as previously promised, release the photographs, but instead would attempt to appeal the Second Circuit’s decision compelling their release to the Roberts Supreme Court.
UPDATE II: In comments, Paul Daniel Ash addresses the Obama supporters who are defending Obama’s decision to keep these photographs concealed on the ground that “no good would come” from disclosure:
I’m pretty jaded, but even I’m outraged and saddened by the number of voices being raised in this comment thread supporting the decision to conceal these photos.
“No good will come?” Would we even have had an Abu Ghraib scandal without the pictures of bloody prisoners and men cowering in front of dogs? “No good?” Is there or is there not an active debate in this country about whether or not torture is acceptable? “No good?” Did a United States Senator not say just today, in the Judiciary Subcommittee on Administrative Oversight and the Courts, that torture techniques have been used for the past five centuries because “apparently they work?”
“No good will come?”
Indeed, it’s pretty hard to believe that the people who are arguing that “no good will come” from release of these photos either (a) lived through the impact of the Abu Ghraib photos and/or (b) are living through the “torture debate” we are now having.
Photographs convey the reality of things in a way that mere words cannot. They prevent people who want to deny what was done the ability to do so. They force citizens to face what their country did and what they are now justifying and advocating. They impede the ability of political leaders to use euphemisms to obscure the truth. They show in graphic detail what the effects are of sanctioning torture policies. They prove that this was about more than ”dunking three terrorists into water.” They highlight the fact that no decent person believes that this should all just be forgotten and its victims told that they have no right to have accountability. That’s precisely why the photographs are being suppressed: because of how much good they would do.
100 Days to Restore the Constitution: Assessment April 29, 2009Posted by rogerhollander in Barack Obama, Criminal Justice, Iraq and Afghanistan, Torture, War.
Tags: Afghanistan War, army field manual, bagram, cia black sites, constitution, constitutional rights, dissent, doj, eric holder, executive power, extraordinary rendition, foia, freedom of information, geneva conventions, green scare, Guantanamo, imperial presidency, Iraq war, justice department, military commissions, obama administartion, pakistan war, preventive detention, rendition, roger hollander, rule of law, state secrets, state secrets privilege, torture, war crime prosecutions, War Crimes, warrantless wiretapping
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For an excellent summary of the pros (almost none) and cons (way too many) of the Obama Administration’s actions or lack thereof with respect to constitutional issues, I highly recommend the following assessment compiled by the Center for Constitutional Rights:
It’s Bush and Cheney, Damn It April 22, 2009Posted by rogerhollander in About George Bush, About Human Rights, About Justice, About Repubicans, Criminal Justice, Dick Cheney, George W. Bush, Torture.
Tags: Abu Ghraib, Alberto Gonzales, bagram, baltasar garzon, bush administration, CIA torture, david addington, democratic party, Dick Cheney, geneva conventions, George Bush, Guantanamo, Iraq occupation, Iraq war, jay bybee, john yoo, justice department, neo-fascist right, nuremburg, president obama, Rahm Emanuel, renditions, roger hollander, rumsfeld, signing statements, torture memos, warrantless wiretapping, waterboarding
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Roger Hollander, www.rogerhollander.com, April 22, 2009
No one is more outraged than I am about the Bush administrations gross violations of domestic and international law and the Obama administration complicity in what amounts to no less than a cover-up. The release of the infamous “torture memos” along with Obama and Rahm Emanuel granting immunity to both the lawyers who wrote the phony justifications for torture or the CIA agents who carried out the acts of barbarism, has us debating which level of subalterns should be held legally accountable.
While there is no doubt given the Geneva Conventions and the Nuremberg principles that no one who participated in these crimes against humanity should be let off the hook, there is a long tradition in American jurisprudence of convicting lower level criminals while those who had the power to make the decisions go scot free. The Abu Ghraib convictions are a case in point.
While it is impossible not to support initiatives such as the possible indictment of the “Bush Six” by Spanish Justice Baltasar Garzón, the movement to impeach Justice Jay Bybee, and various other proposals for Congressional investigation, Commissions of Inquiry, etc.; if the focus is not on Bush, Cheney, Rumsfeld, and the others at the highest level of government, then there is virtually no chance that the kind of justice demanded by the events will be fulfilled.
Realistically speaking, given the strength of the neo- Fascist Right in the country along with the high degree of spinelessness if not outright complicity within the Democratic Party, it is hard to picture a scenario where criminal charges are laid and prosecuted against Bush and Cheney. But I would argue that this is no time for realism, that the war crimes and constitutional violations that were carried out with impunity are too serious to overlook in the name of pragmatism.
As we reel in disbelief and disgust at the perversion of language and morality that are contained in the newly released torture memos, we must not lose sight of the enormity of the overall thrust of the crimes committed by the Bush/Cheney cabal, the warrantless wiretapping, the extraordinary renditons, the politicization of the Justice Department, the signing statements, the intelligence neglect that enabled 9/11, and – above all else – the deceit and lies that were used to justify the illegal invasion and occupation of Iraq, the consequence of which in terms of death and human suffering is beyond comprehension.
There is an old Negro spiritual that we sung during the Civil Rights struggles of the 1960s: “Keep your eyes on the prize …” The Prize is no less than the indictment and conviction of George W. Bush and Dick Cheney. From there we move on to lesser but no less guilty culprits.
Tags: aipac, Alberto Gonzales, doj, doj lawyers, eric lichtblau, FISA, glenn greenwald, intelligence committee, israeli agent, jane harman, justice departmen, Nancy Pelosi, national security, nsa wiretap, porter goss, roger hollander, warrantless wiretapping
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Published on Monday, April 20, 2009 by Salon.com
Other obligations prevent me from writing until later today — and I intend to focus on Rahm Emanuel’s war-crimes-protecting proclamation that Obama’s desire for immunity extends beyond CIA officers perpetrating torture to the “policy makers” who ordered it (watch today as the hardest-core Obama loyalists start explaining how the UN doesn’t matter, international treaties are irrelevant, and war criminals need not be held accountable) – but, until then, I wanted to highlight this extremely important and well-reported story from CQ‘s Jeff Stein, which involves allegations of major corruption and serious criminal activity on the part of Democratic Rep. Jane Harman. Here’s one crucial prong of the story:
Rep. Jane Harman , the California Democrat with a longtime involvement in intelligence issues, was overheard on an NSA wiretap telling a suspected Israeli agent that she would lobby the Justice Department reduce espionage-related charges against two officials of the American Israeli Public Affairs Committee, the most powerful pro-Israel organization in Washington.
Harman was recorded saying she would “waddle into” the AIPAC case “if you think it’ll make a difference,” according to two former senior national security officials familiar with the NSA transcript.
In exchange for Harman’s help, the sources said, the suspected Israeli agent pledged to help lobby Nancy Pelosi, D-Calif., then-House minority leader, to appoint Harman chair of the Intelligence Committee after the 2006 elections, which the Democrats were heavily favored to win.
Seemingly wary of what she had just agreed to, according to an official who read the NSA transcript, Harman hung up after saying, “This conversation doesn’t exist.”
That’s not even the most significant part. Back in October, 2006, Time reported that the DOJ and FBI were investigating whether Harman and AIPAC ”violated the law in a scheme to get Harman reappointed as the top Democrat on the House intelligence committee” and “the probe also involves whether, in exchange for the help from AIPAC, Harman agreed to help try to persuade the Administration to go lighter on the AIPAC officials caught up in the ongoing investigation.” So that part has been known since 2006.
Stein adds today that Harman was captured on an NSA wiretap conspiring with an Israeli agent to apply pressure on DOJ officials to scale back the AIPAC prosecution. But the real the crux of Stein’s scoop is that then-Attorney General Alberto Gonazles intervened to kill the criminal investigation into Harman — even though DOJ lawyers had concluded that she committed crimes — because top Bush officials wanted Harman’s credibility to be preserved so that she could publicly defend the Bush administration’s illegal warrantless eavesdropping program:
[C]ontrary to reports that the Harman investigation was dropped for “lack of evidence,” it was Alberto R. Gonzales, President Bush’s top counsel and then attorney general, who intervened to stop the Harman probe.
Why? Because, according to three top former national security officials, Gonzales wanted Harman to be able to help defend the administration’s warrantless wiretapping program, which was about break in The New York Times and engulf the White House. . . .
Justice Department attorneys in the intelligence and public corruption units who read the transcripts decided that Harman had committed a “completed crime,” a legal term meaning that there was evidence that she had attempted to complete it, three former officials said. . . .
Then-CIA Director Porter J. Goss reviewed the Harman transcript and signed off on the Justice Department’s FISA application. . . . Goss, a former chairman of the House Intelligence Committee, deemed the matter particularly urgent because of Harman’s rank as the panel’s top Democrat.
But that’s when, according to knowledgeable officials, Attorney General Gonzales intervened.
According to two officials privy to the events, Gonzales said he “needed Jane” to help support the administration’s warrantless wiretapping program, which was about to be exposed by the New York Times.
Harman, he told Goss, had helped persuade the newspaper to hold the wiretap story before, on the eve of the 2004 elections. And although it was too late to stop the Times from publishing now, she could be counted on again to help defend the program
He was right.
On Dec. 21, 2005, in the midst of a firestorm of criticism about the wiretaps, Harman issued a statement defending the operation and slamming the Times, saying, “I believe it essential to U.S. national security, and that its disclosure has damaged critical intelligence capabilities.”
And thanks to grateful Bush administration officials, the investigation of Harman was effectively dead.
Indeed, as I’ve noted many times, Jane Harman, in the wake of the NSA scandal, became probably the most crucial defender of the Bush warrantless eavesdropping program, using her status as “the ranking Democratic on the House intelligence committee” to repeatedly praise the NSA program as “essential to U.S. national security” and “both necessary and legal.” She even went on Meet the Press to defend the program along with GOP Sen. Pat Roberts and Rep. Pete Hoekstra, and she even strongly suggested that the whistleblowers who exposed the lawbreaking and perhaps even the New York Times (but not Bush officials) should be criminally investigated, saying she “deplored the leak,” that “it is tragic that a lot of our capability is now across the pages of the newspapers,” and that the whistleblowers were “despicable.” And Eric Lichtblau himself described how Harman, in 2004, attempted very aggressively to convince him not to write about the NSA program.
Stein’s entire story should be read. It’s a model of excellent reporting, as it relies on numerous sources with first-hand knowledge of the NSA transcripts (and what sweet justice it would be if Harman’s guilt were established by government eavesdropping). It should be noted that Harman has issued a general denial of wrongdoing (but does not appear to deny that she had the discussion Stein reports), and the sources in Stein’s story are anonymous (though because they’re disclosing classified information and exposing government wrongdoing, it’s a classic case of when anonymity is justifiable; and note Stein’s efforts to provide as much information as possible about his sources and why they are anonymous).
There are many questions that the story raises — Josh Marshall notes just some of those vital questions here — and Harman’s guilt therefore shouldn’t be assumed. But obviously, given all the very serious issues this story raises — involving what seem to be credible allegations of very serious wrongdoing by a key member of Congress, the former Attorney General and one of the most powerful lobbying organizations in the country — full-scale investigations are needed, to put it mildly.
* * * * *
Tags: aclu, Alberto Gonzales, arlen spector, Barack Obama, cass sunstein, cia, dawn johnsen, dawn johnsen nomination, dawn johnson, doj, eric holder, john yoo, judiciary committee, justice department, larry tribe, laurence tribe, michael hayden, obama lawyers, office legal counsel, office of legal counsel, olc, republican filibuster, roger hollander, scott horton, scott horton daily beast, supreme court, torture memoirs, torture memorandum, warrantless surveilance, warrantless wiretapping
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The GOP is threatening an ugly fight over an Obama Justice Department appointee who wants to disclose more Bush-era torture memos.
Until recently, the Justice Department’s Office of Legal Counsel, often considered the “brains” of the department, has been known mostly to legal experts. But for the past eight years, it was the epicenter of allegations of political manipulation and, worse, the source of infamous memoranda on torture. In tapping Eric Holder as attorney general, President Obama has promised to restore standards of professionalism to the department. For Republicans, this is tantamount to a declaration of partisan war.
On March 19, the nomination of Indiana University law professor Dawn Johnsen to head the OLC was endorsed by the Judiciary Committee with every Republican voting against her and Sen. Arlen Spector (R-PA) abstaining. The nomination was to have been brought to the Senate floor for a vote on Monday and then again on Wednesday, but it has been held back. Republican leaders, it appears, are playing with the notion of making Johnsen the target of their first filibuster.
The highly credentialed Johnsen is an improbable target, and OLC was long viewed as an obscure post. But Johnsen served as a lawyer for the American Civil Liberties Union and the National Abortion & Reproductive Rights Action League. Antiabortion groups have targeted Johnsen over the last three weeks with a massive telephone, email, and letter-writing campaign, demanding that senators oppose her nomination. Johnsen is labeled a “radical, pro-abortion activist,” although her views on the abortion issue line up very closely with the mainstream. While the noise surrounding the Johnsen nomination appears on the surface to be about the abortion issue—over which her position at OLC would have very little influence—discussions with Republican stalwarts reveal that their main concerns lie elsewhere.
The real reason for their vehement opposition is that Johnsen is committed to overturning the Bush administration’s policies on torture and warrantless surveillance, which would clip the wings of the imperial presidency. Even more menacingly (from their perspective), she is committed to shining a light on some of the darkest skeletons of the Bush years. Already, publication of OLC memoranda authorizing torture, approving warrantless surveillance, and pronouncing the First and Fourth Amendments a dead letter in connection with domestic military operations has rocked the public. More memos, potentially even more disturbing, I have learned, are about to be made public soon. Yet these are difficult issues on which to attack Johnsen, other than through vague suggestions that she is “weak on national security.” Hence the steady stream of accusations linked to her largely irrelevant views about abortion rights.
Will the Republicans attempt to filibuster the Johnsen nomination? The threat is sufficiently serious to have provoked the editors of the New York Times to editorialize in support of Johnsen on Thursday. Calling the operation of OLC in the Bush era “lawless,” the editors wrote, “Ms. Johnsen is superbly qualified and has fought for just the sort of change the office needs.”
The controversy surrounding Johnsen provides a flashpoint for President Obama’s nominees for administration legal posts. Unsurprisingly, they look an awful lot like Barack Obama—strong legal credentials, an academic bent, and liberal attitudes balanced by a strong commitment to political pragmatism.
Obama’s top picks start with a couple of well-known Washington names. Eric Holder, the nation’s first black attorney general, was a career Justice Department attorney who spent his formative years as a prosecutor in the department’s Public Integrity Section (much-criticized for abuse under Bush). He spent time as a U.S. attorney, a judge, and ran the Justice Department for a while as deputy attorney general in the Clinton years. Obama’s White House counsel, Greg Craig, is a Washington fixture at the powerhouse Williams & Connolly law firm. The former foreign-policy aide to Sen. Edward Kennedy and State Department official has handled high-profile cases from Clinton’s impeachment defense to representing the father of Elian Gonzales. In the way of Washington, he is also has ties to powerful Republicans, including Karl Rove and Alabama Sen. Richard Shelby, whom he successfully represented in a sensitive FBI investigation into the leaking of classified data.
But delving deeper into the list, the names are less known for pragmatic politics and inside-the-Beltway experience than for pure intellectual firepower. Nearly a quarter of all Obama nominees have a Harvard degree. No fewer than 11 Harvard Law School faculty members drew appointments in the Obama team, including the dean, Elena Kagan, who was also deputy domestic-policy adviser to President Clinton. He also tapped Yale’s law-school dean, Harold Koh, widely thought to be a possible Supreme Court appointment, to serve as the principal lawyer at the State Department. Obama has mined the University of Chicago, the University of Michigan, and Georgetown. All these schools are being forced to scramble as professors announce the cancellation of classes and prepare to depart for Washington.
A scan of the names involved makes clear that Obama is not looking for any particular ideological line—the candidates tapped range from centrist conservatives to traditional liberals. But he clearly is seeking individuals highly regarded by their peers who are on top of the issues for which they will have responsibility.
The trio of appointments Obama announced for the OLC underscores this point. In addition to Johnsen, Obama chose Harvard law professor David Barron and Georgetown law professor Marty Lederman as her two deputies. The three nominees have similar histories. Each served in the OLC in prior administrations before departing for academia. And over the last eight years, each spent a good deal of time and energy studying and criticizing the conduct of the OLC in the Bush years. Barron and Lederman co-authored a highly regarded two-part historical study of presidential powers, which demolished the underpinnings of the most significant OLC memoranda authored by John Yoo, including the famous torture memorandum. The three may well have been the Bush OLC’s most vocal critics, highlighting its departure from traditions and practices of earlier administrations. All three were also sharply critical of the Bush team’s devotion to secrecy in the formation of legal policy. It is therefore unsurprising that the Obama team has moved very quickly to publish the previously secret opinions that their Bush predecessors issued and to overturn those decisions. It would be hard to identify three lawyers more knowledgeable about the subject than Johnsen, Barron, and Lederman.
In the coming two weeks, their push for transparency will result in the publication of more Bush-era OLC memos, including the specific approvals granted for waterboarding, extended isolation, and other torture techniques—memos that the Bush administration has sought to keep secret. Former CIA Director Michael Hayden and Obama adviser John Brennan are said to have “gone to the mat” to keep the opinions secret, but Obama sided with his designated OLC team and upheld the decision to declassify and publish them.
Harvard law professor Laurence Tribe, one of the nation’s leading constitutional scholars and Supreme Court advocates, and Obama’s former teacher, is often mentioned as an adviser in the background, a gray eminence, counseling Obama on appointments and policy choices. He is widely believed to covet an appointment to the Supreme Court, though, at 67 years old, he might be passed over for a younger person. While Tribe is a regular target of the right and closely connected to an array of liberal causes, those familiar with his role in the recent appointments process say that he has steadily advised Obama to avoid ideological confrontations and stressed pragmatism as an important quality for appointees.
Another legal academic said to figure in Obama’s inner circle is Harvard law professor Cass Sunstein, who until recently was a colleague of Obama’s at the University of Chicago Law School. Sunstein has been appointed to head the White House Office of Information and Regulatory Affairs, while his wife Samantha Power, a Pulitzer Prize-winning author, serves as chief on the National Security Council as head of international organizations. Sunstein is associated with the notion of judicial minimalism, arguing that decisions should be taken on the narrowest possible case-specific grounds so as to preserve a broader range of options in future cases. The executive orders that Obama issued in his first two days in office were widely seen as following Sunstein’s minimalist approach in confronting a range of national-security issues on which Obama has pledged changes.
Unlike Obama, a professor of law, George W. Bush was noted for a sharp disdain for lawyers. He liked to make disparaging jokes about attorneys in pinstripes and tasseled loafers. “I don’t care what the international lawyers say, we are going to kick some ass,” he barked as the war on terror got under way, according to former counterterrorism chief Richard Clarke. Through the Bush administration, appointment to high-level legal positions was usually a reward for faithful service—as personified by Alberto Gonzales, who as counsel to the president and attorney general arguably held the two most powerful legal posts. Gonzales’ entire career, as a partner at the prestigious Houston firm of Vinson & Elkins, in Texas state government, and finally in Washington, was marked by service to a single client: George W. Bush.
The Bush administration’s overriding concern was for political loyalty. It demanded individuals who would unquestioningly implement the White House’s directives. The notion of independent professional judgment was derided as counterproductive at best and a cloak for liberal activism at worst. To that end, selecting the best and the brightest was not advisable. Where prior administrations looked for the top graduates from the nation’s elite law schools, the Bush team scoured schools not found in a list of the top-100 law schools (and sometimes not even ABA-accredited), but with strong ties to the religious right and the Republican Party. Justice Department officials openly asked job candidates whether they had worked for the Bush-Cheney campaign and contributed money and quickly rejected those whose offense was support for John McCain in the 2000 Republican primaries. Membership in the movement’s conservative legal organization, the Federalist Society, was also a plus if not essential—in recently disclosed emails, former Bush-era U.S. attorney and Civil Rights Division Director Bradley Schlozman (whose case is now under review for the possible filing of criminal charges) called them “ideological comrades.” The result was a Justice Department filled with political hacks in appointed positions and a historically unprecedented level of politicization in its decision-making process.
The Obama nominees, presenting the sharpest possible contrast, have drawn sputtering fire from Republicans in Congress and have come under broad attack from religious-right leaders who previously had strong influence in Justice Department picks. Dawn Johnsen is an interesting test case. If the Republicans opt for a filibuster or move to line up a unanimous GOP vote in opposition, it will be a shot across the bow of the Obama Justice Department.
Scott Horton is a law professor and writer on legal and national-security affairs for Harper’s magazine and the American Lawyer, among other publications.