Congress

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The Disturbing Paradox of the David Barron Nomination

CryingJusticeBarack Obama has a preternatural preference for ivory tower elites from Harvard when it comes to judicial and executive branch appointees, and David Barron is the latest example. The White House is in the final stages of an all out push to insure David Barron gets confirmed to a lifetime Article III seat on the First Circuit.

In this regard, Mr. Barron has gotten exactly the kind of fervent support and back channel whipping the Obama White House denied Goodwin Liu, and refused to give to the nominee at OLC that David Barron stood as the designated and approved Obama acting placeholder for, Dawn Johnsen.

It turns out Mr. Obama and his White House shop really can give appropriate support to nominees if they care, which seemed to be a trait entirely lacking earlier in the Obama Presidency. And by giving the ill taken legal cover to Mr. Obama for the extrajudicial execution of American citizens, that Obama had already attempted once without, Mr. Barron certainly earned the support of the Obama White House.

It would be wonderful if Mr. Obama were to give support to candidates for judicial seats and key legal agencies who protect the Constitution instead of shredding it for convenience, but it appears to not be in the offing all that consistently. Obama has never been the same since blowback from the release of the Torture Memos when he first took office. Even Federal judges like Mary Schroeder and Bill Canby who, less than a month after Obama took office, were stunned by the about face, and wholesale adoption, by Obama of the Bush/Cheney security state protocols. From a New York Times article at the moment:

During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

Judge Schroeder asked, “The change in administration has no bearing?”

Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

Make no mistake, from my somewhat substantial knowledge of Mary Schroeder, that was the voice of shock and dismay. But it was an early tell of who and what Barack Obama, and his administration, would be on national security issues from there forward. And so, indeed, it has been.

What was unconscionable and traitorous to the rule of law and Constitution for Obama, and the Democratic majority in the Senate, under George Bush is now just jim dandy under Barack Obama. It is intellectual weakness and cowardice of the highest order.

So we come back to the case of David Barron. Frankly, it is not hard to make the argument that what Barron has done is actually worse than the travesties of John Yoo and Jay Bybee. As unthinkable, heinous and immoral as torture is, and it is certainly all that, it is a discrete violation of domestic and international law. It is definable crime.

But what David Barron did in, at a minimum, the Awlaki Targeted Kill Memo (there are at least six other memos impinging on and controlling this issue, at a minimum of which at least one more is known to be authored by Barron, and we don’t even deign to discuss those apparently), was to attack and debase the the very foundational concept of Due Process as portrayed in the Bill of Rights. Along with Habeas Corpus, Due Process is literally the foundation of American criminal justice fairness and freedom under our Constitution.

David Barron attacked that core foundation. Sure, it is in the so called name of terrorism today, tomorrow it will justify something less in grade. And something less the day after. Such is how Constitutional degradation happens. And there is absolutely nothing so far known in Mr. Barron’s handiwork to indicate it could not be adapted for use domestically if the President deems it so needed. Once untethered from the forbidden, once unthinkable Executive Branch powers always find new and easier uses. What were once vices all too easily become habits. This is exactly how the once proud Fourth Amendment has disappeared into a rabbit hole of “exceptions”.

This damage to Due Process occasioned by David Barron can be quite easily argued to be more fundamental and critical to the Constitution, the Constitution every political and military officer in the United States is sworn to protect, than a temporally limited violation of criminal statutes and international norms on torture as sanctioned by Yoo and Bybee. But it is not treated that way by cheering Dems and liberals eager to confirm one of their own, a nice clean-cut Harvard man like the President, to a lifetime post to decide Constitutional law. What was detested for Jay Bybee, and would certainly be were John Yoo ever nominated for a federal judgeship, is now no big deal when it comes to David Barron. Constitutional bygones baybee; hey Barron is cool on same sex marriage, what a guy! Screw Due Process, it is just a quaint and archaic concept in a piece of parchment paper, right?

If the above were not distressing enough, the Barron nomination was supposed to, at a minimum, be used as leverage to get public release of the Barron handiwork legally sanctioning Mr. Obama to extrajudicially execute American citizens without a whiff of Due Process or judicial determination. Did we get that? Hell no, of course not. A scam was run by the Obama White House, and the Senate and oh so attentive DC press fell for it hook, line and sinker. We got squat and Barron is on the rocket path to confirmation with nothing to show for it, and no meaningful and intelligent review of his facially deficient record of Constitutional interpretation.

Barron cleared cloture late Wednesday and is scheduled for a floor vote for confirmation today, yet release of the “redacted memo” is nowhere remotely in sight. This framing on Barron’s nomination, irrespective of your ultimate position on his fitness, is a complete and utter fraud on the American citizenry in whose name it is being played. And that is just on the one Awlaki Memo that we already know the legal reasoning on from the self serving previous release of the “white paper” by the Administration. Discussion of the other six identified pertinent memos has dropped off the face of the earth. Booyah US Senate, way to do your job for the citizens you represent! Or not.

Personally, there is more than sufficient information about David Barron’s situational legal, and moral, ethics in the white paper alone to deem him unfit for a lifetime Article III confirmed seat on a Circuit Court of Appeal.

But, even if you disagree and consider Barron fit, you should admit the American citizenry has been ripped off in this process by the Democratically led Senate, and an Obama Administration who has picked a dubious spot to finally get aggressive in support of one of their nominees.

If Goodwin Liu and Dawn Johnsen, two individuals who had proven their desire to protect the Constitution, had received this kind of support, this country, and the world, would be a better place. Instead, Mr. Obama has reserved his all out push for a man who, instead, opted to apply situational ethics to gut the most basic Constitutional concept of Due Process. That’s unacceptable, but at a minimum we should have the benefit of proper analysis of Barron’s work before it happens.

The Naked and Unbound Ambition of Kyrsten Sinema

4d2ce6002fa58.preview-300As the kerfuffle over SB-1062 dies down, politics march on here at ground zero in Arizona. The GOP runs the key Executive Branch offices such as governor and Secretary of State but, more importantly in many respects, also the state legislature, and as long as they do state politics will continue to be dominated by clusterfucks and cleanups. But Arizona has issues with their statewide federal elected officials too. The current manifestation is not McCain, Flake, nor even the Pleistocene era brainfart known as Trent Franks.

No, today’s issue is the once and forever self proclaimed liberal Democrat, Kyrsten Sinema. The transformation of Sinema, who aggressively sold herself as progressive liberal when seeking election, to a conservative Blue Dog toadie of the Minority centrist Dem leadership has been nothing short of astounding, especially for those of us who reside in her district and voted for her in 2012. She completely betrayed her base constituents in Arizona District 9. That is mostly a story for another day though, today’s story is not about discrete policy issues, but wholesale admission of the deceptive nature of Kyrsten Sinema’s incursion into AZ-9 to start with.

The baseline is this: Thursday, longtime Arizona Democratic Congressman Ed Pastor of AZ-7 announced his decision to retire and not seek reelection in 2014. Local politicians, from seemingly forever Maricopa Board of Supervisor’s member Mary Rose Wilcox to new and fairly refreshing voices like state legislature member Ruben Gallego, were literally stepping over one another to announce they would be running for Pastor’s seat. They are almost all minorities vying to represent a solidly minority district. And this is no small thing, as most all of them have to give up their current position to do so under Arizona’s “resign to run” law.

I was asked early on Thursday, not long after Pastor’s announcement, by a friend who supports liberal Dems nationwide, about Kyrsten Sinema jumping in. I thought it was a joke question and said so. Because it was crazy talk. The joke, however, was squarely on me and her other constituents in AZ-09. Yeah, Kysten Sinema, who pledged herself to AZ-09, started lusting after AZ-07 the second it was announced available.

Not that Kyrsten Sinema (see her Twitter feed, which is a litany of everything but her contemplated district switch) or her managers/spokespeople will admit it, or even address the subject, but she was ready to walk from second one. How do we know? Because the Arizona Republic/12 News (via the excellent Brahm Resnik) got a copy of an email to Sinema’s inside staff proving it.

So, why is this a big deal? Because it shows that, for first term congresswoman Kyrsten Sinema, her own raw narcissistic ambition, in a dynamic situation, immediately trumps loyalty to her constituents Continue reading

1st Amendment Justice Delayed is Justice Denied for Col. Morris Davis

Bg32jNgCYAApToACol. Morris Davis is, at least for my money, an American hero. He served and fought not only for his country, but for the Constitution he swore to protect. The subject of what happened to him at the hands of the very government he defended deserves a much longer, and deeper, dive than I have time for in this post. We will likely come back for that at a later date as it seems as if the legal case Col. Davis brought to correct the wrongs done to him will likely go on forever.

And the going on forever part is the subject of this post. Col. Davis was scheduled to have a hearing in United States District Court in Washington DC tomorrow in front of Judge Reggie Walton. But the hearing was postponed. And that is the problem, this is the FOURTEENTH (14th) TIME hearing on Col. Davis’ case has been delayed. One delay was due to a conflict on Judge Walton’s part, and one because the offices of Davis’ attorneys at the ACLU in New York were substantially damaged by Hurricane Sandy. Other than that, the delay has been at the hands of an intransigent and obstreperous DOJ. If the actions of the DOJ in relation to Col. Davis are not “bad faith”, it is hard to imagine what the term stands for.

Now, to be fair, it appears the latest delay was at the unilateral hand of the court, as yesterday’s minute entry order reads:

In light of the fact that potentially dispositive motions remain pending, it is hereby ORDERED that the status hearing currently scheduled for Friday, February 21, at 9:15 a.m. is CONTINUED to a date and time to be determined by the Clerk.

The problem with that is that the “dispositive motions” the court speaks of as being “pending” have been “pending” for a VERY long time, since July of last year. And the case itself has been going on since the complaint was filed on January 8, 2010.

Why is it taking so long you ask? Because of the aforementioned bad faith and obstreperousness of the Department of Justice, that’s why. To get an idea of just what is going on here, a little background is in order. Peter Van Buren gives a good, and relatively brief synopsis:

Morris Davis is not some dour civil servant, and for most of his career, unlikely to have been a guest at the Playboy Mansion. Prior to joining the Library of Congress, he spent more than 25 years as an Air Force colonel. He was, in fact, the chief military prosecutor at Guantánamo and showed enormous courage in October 2007 when he resigned from that position and left the Air Force. Davis stated he would not use evidence obtained through torture. When a torture advocate was named his boss, Davis quit rather than face the inevitable order to reverse his position.

Morris Davis then got fired from his research job at the Library of Congress for writing an article in the Wall Street Journal about the evils of justice perverted at Guantanamo, and a similar letter to the editor of the Washington Post. (The irony of being fired for exercising free speech while employed at Thomas Jefferson’s library evidently escaped his bosses.) With the help of the ACLU, Davis demanded his job back. On January 8, 2010, the ACLU filed a lawsuit against the Library of Congress on his behalf. In March 2011 a federal court ruled against the Obama Administration’s objections that the suit could go forward (You can read more about Davis’ struggle.)

Moving “forward” is however a somewhat awkward term to use in regards to this case. In the past two years, forward has meant very little in terms of actual justice done.

Yes, you read that right. Col. Davis was fired from the job he truly loved at the Congressional Research Service because he, on his own time as a private citizen, exercised his First Amendment right to speak. As one of Davis’ pleadings puts it:

Col. Davis was unconstitutionally removed from his position at the Library of Congress’ Congressional Research Service for writing opinion pieces in the Wall Street Journal and the Washington Post expressing his nonpartisan, personal views on the failures of the American military commissions established to try detainees at Guantánamo Bay, Cuba. His speech lies at the very core of the First Amendment and exemplifies the kind of speech that federal courts have been most vigilant in protecting from government retaliation.

The full pleading that quote came from, Col. Davis’ response to the government’s motion for summary judgment (one of the “pending dispositive motions”) can be found here and is a good read if you are interested in more background.

That is exactly what happened and what is at stake. And you do not have to take my word for it, Judge Walton thinks it is a solid and valid claim too. Here is language from Judge Walton in an order in late January 2010, not long after the case was filed:

The Court is satisfied that the plaintiff has established, at least based on the record before the Court at this time, that the likelihood of success on the merits and public policy prongs of the preliminary injunction standard weigh in his favor. Essentially, the record before the Court suggests that the plaintiff was terminated immediately after two specific opinion editorials he authored were published in national newspapers. Regardless of the defendants’ contention to the contrary, it appears that the content of the plaintiff’s published opinions was one of the reasons, if not the primary reason, he was fired, i.e., because the plaintiff took a position on the prosecution of detainees being housed at the United States military’s Guantánamo Bay facility which the Congressional Research Service felt would call into question its impartially as to any policy recommendation it would make and any research it would conduct on that issue. This conclusion is supported by the fact that the opinion articles were specifically referenced in the plaintiff’s termination letter, and also the timing of the letter, which was issued only several days after his writings were published. The plaintiff’s likelihood of success position therefore is well-founded, at least with respect to the record the Court now has before it. And as to the public interest prong, it cannot be questioned that government employees retain First Amendment rights. (citations omitted)

So, there is really no question but that protected First amendment rights were involved, and that Col. Davis was wrongfully fired for exercising them. Makes you wonder why the DOJ would string him out and fight so hard in a case that is only about the rights and not even about the money damages he suffered as a result (that would have to be litigated in a separate action).

As the graphic at the top questions, why is the DOJ willing to give free speech rights to a terrorist at Guantanamo and not to Col. Morris Davis? Bad faith is the answer. Complete, scandalous, bad faith.

White House, Congress Arguing Over Which Senate Committee Should Fail in Drone Oversight

Ken Dilanian has a very interesting article in the Los Angeles Times outlining the latest failure in Congress’ attempts to exert oversight over drones. Senator Carl Levin had the reasonable idea of calling a joint closed session of the Senate Armed Services and Intelligence Committees so that the details of consolidating drone functions under the Pentagon (and helping the CIA to lose at least one of its paramilitary functions) could be smoothed out. In the end, “smooth” didn’t happen:

An effort by a powerful U.S. senator to broaden congressional oversight of lethal drone strikes overseas fell apart last week after the White House refused to expand the number of lawmakers briefed on covert CIA operations, according to senior U.S. officials.

Sen. Carl Levin (D-Mich.), who chairs the Armed Services Committee, held a joint classified hearing Thursday with the Senate Intelligence Committee on CIA and military drone strikes against suspected terrorists.

But the White House did not allow CIA officials to attend, so military counter-terrorism commanders testified on their own.

But perhaps the White House was merely retaliating for an earlier slight from Congress:

In May, the White House said it would seek to gradually move armed drone operations to the Pentagon. But lawmakers added a provision to the defense spending bill in December that cut off funds for that purpose, although it allows planning to continue.

Dilanian parrots the usual framing of CIA vs JSOC on drone targeting:

Levin thought it made sense for both committees to share a briefing from generals and CIA officials, officials said. He was eager to dispel the notion, they said, that CIA drone operators were more precise and less prone to error than those in the military.

The reality is that targeting in both the CIA and JSOC drone programs is deeply flawed, and the flaws lead directly to civilian deaths. I have noted many times (for example see here and here and here) when John Brennan-directed drone strikes (either when he had control of strike targeting as Obama’s assassination czar at the White House or after taking over the CIA and taking drone responsibility with him) reeked of political retaliation rather than being logically aimed at high value targets. But those examples pale in comparison to Brennan’s “not a bake sale” strike that killed 40 civilians immediately after Raymond Davis’ release or his personal intervention in the peace talks between Pakistan and the TTP. JSOC, on the other hand, has input from the Defense Intelligence Agency, which, as Marcy has noted, has its own style when it comes to “facts”. On top of that, we have the disclosure from Jeremy Scahill and Glenn Greenwald earlier this week that JSOC will target individual mobile phone SIM cards rather than people for strikes, without confirming that the phone is in possession of the target at the time of the strike. The flaws inherent in both of these approaches lead to civilian deaths that fuel creation of even more terrorists among the survivors.

Dilanian doesn’t note that the current move by the White House to consolidate drones at the Pentagon is the opposite of what took place about a year before Brennan took over the CIA, when his group at the White House took over some control of JSOC targeting decisions, at least with regard to signature strikes in Yemen.

In the end, though, it’s hard to see how getting all drone functions within the Pentagon and under Senate Armed Services Committee oversight will improve anything. Admittedly, the Senate Intelligence Committee is responsible for the spectacular failure of NSA oversight and has lacked the courage to release its thorough torture investigation report, but Armed Services oversees a bloated Pentagon that can’t even pass an audit (pdf). In the end, it seems to me that this entire pissing match between Congress and the White House is over which committee(s) will ultimately be blamed for failing oversight of drones.

Breaking: Four Senators Rediscover Congress Has Oversight Role for Committing Troops

Don’t look for this important bit of news in the New York Times or Washington Post. At least at the time I started writing this, they hadn’t noticed that Senators Jeff Merkley, (D-OR), Mike Lee (R-UT), Joe Manchin (D-WV), and Rand Paul (R-KY) put out a press release yesterday calling for a Congressional vote on whether to authorize keeping US troops in Afghanistan beyond 2014. President Barack Obama and the Pentagon have been bargaining with Afghan President Hamid Karzai for over a year now to get a Bilateral Security Agreement that will authorize keeping US troops there after the current NATO mission officially ends at the end of this year, but we have heard almost nothing at all from Congress. Well, we did have some hypocrisy tourists calling for Karzai to sign the agreement immediately or suffer the financial consequences, but they didn’t call for using their Constitutional role in authorizing use of troops.

This bipartisan group had some pretty strong language about the push to exclude Congress from the decision-making on keeping troops in Afghanistan:

Today, Senators Jeff Merkley (D-OR), Mike Lee (R-UT), Joe Manchin (D-WV), and Rand Paul (R-KY) announced the introduction of a bipartisan resolution calling for Congress to have a role in approving any further United States military involvement in Afghanistan after the current mission ends on December 31, 2014. The Administration is reportedly negotiating an agreement that could keep 10,000 American troops or more in Afghanistan for another ten years.

“The American people should weigh in and Congress should vote before we decide to commit massive resources and thousands of troops to another decade in Afghanistan,” Merkley said. “After over 12 years of war, the public deserves a say. Congress owes it to the men and women in uniform to engage in vigorous oversight on decisions of war and peace.”

“After over a decade of war, Congress, and more importantly the American people, must be afforded a voice in this debate,” Lee said. “The decision to continue to sacrifice our blood and treasure in this conflict should not be made by the White House and Pentagon alone.

“After 13 years, more than 2,300 American lives lost and more than $600 billion, it is time to bring our brave warriors home to the hero’s welcome they deserve and begin rebuilding America, not Afghanistan,” Manchin said. “We do not have an ally in President Karzai and his corrupt regime. His statements and actions have proven that again and again. Most West Virginians believe like I do money or military might won’t make a difference in Afghanistan. It’s time to bring our troops home.”

“The power to declare war resides in the hands of Congress,” Paul said. “If this President  or any future President has the desire to continue to deploy U.S. troops to this region, it should be done so only with the support of Congress and the citizens of the United States.”

After 12 years and hundreds of billions of dollars spent, the Administration has declared that the war in Afghanistan will be wound down by December 31, 2014. However, the Administration is also negotiating an agreement with the Government of Afghanistan that would set guidelines for U.S. troops to remain in training, support, and counter-terrorism roles through at least 2024.

In November, the Senators introduced this bill as an amendment to the Defense Authorization bill, but it wasn’t allowed a vote. In June, the House of Representatives approved a similar amendment to the NDAA stating that it is the Sense of Congress that if the President determines that it is necessary to maintain U.S. troops in Afghanistan after 2014, any such presence and missions should be authorized by Congress.  The House amendment passed by a robust, bipartisan 305-121 margin.

But Merkley added yet another zinger. From the AFP story on the move, as carried in Dawn (emphasis added):

“We are introducing a bipartisan resolution to say before any American soldier, sailor, airman or Marine is committed to stay in Afghanistan after 2014, Congress should vote,” Democratic Senator Jeff Merkley told reporters.

Automatic renewal is fine for Netflix and gym memberships, but it isn’t the right approach when it comes to war.

Wow. What a concept. Continue reading

The Civil Liberties Celebration Hangover Wears Off

JusticePicAt the end of last week, I joked a little about privacy and civil liberties advocates having had the “best week ever”. It was indeed a very good week, but only relatively compared to the near constant assault on the same by the government. But the con is being put back in ICon by the Administration and its mouthpieces.

As I noted in the same post, Obama himself has already thrown cold water on the promise of his NSA Review Board report. Contrary to some, I saw quite a few positives in the report and thought it much stronger than I ever expected. Still, that certainly does not mean it was, or is, the particularly strong reform that is needed. And even the measures and discussion it did contain are worthless without sincerity and dedication to buy into them by the intelligence community and the administration. But if Obama on Friday was the harbinger of the walkback and whitewash of real reform, the foot soldiers are taking the field now to prove the point.

Sunday morning brought out former CIA Deputy Director Michael Morrell on CBS Face the Nation to say this:

I think that is a perception that’s somehow out there. It is not focused on any single American. It is not reading the content of your phone calls or my phone calls or anybody else’s phone calls. It is focused on this metadata for one purpose only and that is to make sure that foreign terrorists aren’t in contact with anybody in the United States.

Morrell also stated that there was “no abuse” by the NSA and that Ed Snowden was a “criminal” who has shirked his duties as a “patriot” by running. Now Mike Morrell is not just some voice out in the intelligence community, he was one of the supposedly hallowed voices that Barack Obama chose to consider “reform”.

Which ought to tell you quite a bit about what Barack Obama really thinks about true reform and your privacy interests. Not much. In fact, Morrell suggested (and Obama almost certainly agrees) that the collection dragnet should be expanded from telephony to also include email. Not exactly the kind of “reform” we had in mind.

Then, Sunday night 60 Minutes showed that fluffing the security state is not just a vice, but an ingrained habit for them. Hot on the heels of their John Miller blowjob on the NSA, last night 60 Minutes opened with a completely hagiographic puff piece on and with National Security Advisor Susan Rice. There was absolutely no news whatsoever in the segment, it was entirely a forum for Rice and her “interviewer”, Lesley Stahl, to spew unsupported allegations about Edward Snowden (He “has 1.5 million documents!”), lie about how the DOJ has interacted with the court system regarding the government surveillance programs (the only false statements have been “inadvertent”) and rehab her image from the Benghazi!! debacle. That was really it. Not exactly the hard hitting journalism you would hope for on the heels of a federal judge declaring a piece of the heart of the surveillance state unconstitutional.

Oh, yes, Susan Rice also proudly proclaimed herself “a pragmatist like Henry Kissinger which, as Tim Shorrock correctly pointed out, is not exactly reassuring from the administration of a Democratic President interested in civil liberties, privacy and the rule of law.

So, the whitewashing of surveillance dragnet reform is in full swing, let the giddiness of last week give way to the understanding that Barack Obama, and the Intelligence Community, have no intention whatsoever of “reforming”. In fact, they will use the illusion of “reform” to expand their authorities and power. Jonathan Turley noted:

Obama stacked the task force on NSA surveillance with hawks to guarantee the preservation of the program.

Not just preserve, but to give the false, nee fraudulent, patina of Obama Administration concern for the privacy and civil liberties concerns of the American citizenry when, in fact, the Administration has none. It is yet another con.

Or, as Glenn Greenwald noted:

The key to the WH panel: its stated purpose was to re-establish public confidence in NSA – NOT reform it.

There may be some moving of the pea beneath the shells, but there will be no meaningful reform from the administration of Barack Obama. The vehicle for reform, if there is to be one at all, will have to come from the Article III federal courts. for an overview of the path of Judge Leon’s decision in Klayman through the DC circuit, see this piece by NLJ’s Zoe Tillman.

Lastly, to give just a little hope after the above distressing content, I recommend a read of this excellent article by Adam Serwer at MSNBC on the cagy pump priming for surveillance reform Justice Sotomayor has done at the Supreme Court:

If Edward Snowden gave federal courts the means to declare the National Security Agency’s data-gathering unconstitutional, Sonia Sotomayor showed them how.

It was Sotomayor’s lonely concurrence in U.S. v Jones, a case involving warrantless use of a GPS tracker on a suspect’s car, that the George W. Bush-appointed Judge Richard Leon relied on when he ruled that the program was likely unconstitutional last week. It was that same concurrence the White House appointed review board on surveillance policy cited when it concluded government surveillance should be scaled back.

“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Sotomayor wrote in 2012. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

Give the entire article a read, Adam is spot on. If there is to be reform on the surveillance dragnet, it will almost certainly have to be the handiwork of the courts, and Justice Sotomayor planted the seed. The constant barrage of truth and facts coming from the Snowden materials, what Jay Rosen rightfully terms “The Snowden Effect” is providing the food for Sotomayor’s seed to flower. Hopefully.

MEK Purchases 27 US Senate Votes for War With Iran

On Tuesday, I posited that the threat of new sanctions kicking in if a final agreement on nuclear technology is not reached could serve as a strong incentive for Iran to bargain in good faith with the P5+1 group of nations. But then, on Thursday, an actual sanctions bill was introduced. Ali Gharib took the time to read it (he got an advance copy and posted about it Wednesday) and what he found is profoundly disturbing (emphasis added):

The legislation would broaden the scope of the sanctions already imposed against Iran, expanding the restrictions on Iran’s energy sector to include all aspects of its petroleum trade and putting in place measures targeting Iran’s shipping and mining sectors. The bill allows Obama to waive the new sanctions during the current talks by certifying every 30 days that Iran is complying with the Geneva deal and negotiating in good faith on a final agreement, as well as meeting other conditions such as not sponsoring or carrying out acts of terrorism against U.S. targets.

In accordance with goals laid out frequently by hard-liners in Congress and the influential lobbying group the American Israel Public Affairs Committee, the bill sets tough conditions for a final deal, should one be reached with Iranian negotiators. Among those conditions is a provision that only allows Obama to waive new sanctions, even after a final deal has been struck, if that deal bars Iran from enriching any new uranium whatsoever. The bill states Obama may not waive sanctions unless the United States and its allies “reached a final and verifiable agreement or arrangement with Iran that will … dismantle Iran’s illicit nuclear infrastructure, including enrichment and reprocessing capabilities and facilities.” (Congress could also block Obama’s waivers by passing a “joint resolution of disapproval” against a final deal.)

Although Gharib ascribes the war mongering aspects of this bill to positions advocated by AIPAC, the work (and funding money) of MEK, which advocates for (in my opinion, violent) regime change in Iran, seems to be just as likely, if not more likely, to be behind this hideous piece of legislation. The chief architect of the bill is Robert Menendez (D-NJ). He lists his cosponsors (Menendez’s original release claimed 26 cosponsors and the news stories linked below also cite 26, but Corey Booker was added to the list this morning while this post was being written. The press release was changed to add Booker to the list without changing the 26 to 27. The press release at the old URL was wiped out so that an empty page is returned. The date of December 19 for the release was also retained.):

The legislation was co-sponsored by twenty-six senators [sic], including: Senators Menendez, Kirk, Schumer, Graham, Cardin, McCain, Casey, Rubio, Coons, Cornyn, Blumenthal, Ayotte, Begich, Corker, Pryor, Collins, Landrieu, Moran, Gillibrand, Roberts, Warner, Johanns, Hagan, Cruz, Donnelly, Blunt and Booker.

Perhaps the only encouraging aspect of this long list of bipartisan backers of war is that back in June of 2012 this group got 44 signatures on a Senate letter calling for all negotiations with Iran to cease unless three conditions were met: Continue reading

Lavabit and The Definition of US Government Hubris

Graphic by Darth

Graphic by Darth

Well, you know, if you do not WANT the United States Government sniffing in your and your family’s underwear, it is YOUR fault. Silly American citizens with your outdated stupid piece of paper you call the Constitution.

Really, get out if you are a citizen, or an American communication provider, that actually respects American citizen’s rights. These trivialities the American ethos was founded on are “no longer operative” in the minds of the surveillance officers who claim to live to protect us.

Do not even think about trying to protect your private communications with something so anti-American as privacy enabling encryption like Lavabit which only weakly, at best, even deigned to supply.

Any encryption that is capable of protecting an American citizen’s private communication (or even participating in the TOR network) is essentially inherently criminal and cause for potentially being designated a “selector“, if not target, of any number of searches, whether domestically controlled by the one sided ex-parte FISA Court, or hidden under Executive Order 12333, or done under foreign collection status and deemed “incidental”. Lavabit’s Ladar Levinson knows.

Which brings us to where we are today. Let Josh Gerstein set the stage:

A former e-mail provider for National Security Agency leaker Edward Snowden, Lavabit LLC, filed a legal brief Thursday detailing the firm’s offers to provide information about what appear to have been Snowden’s communications as part of a last-ditch offer that prosecutors rejected as inadequate.

The disagreement detailed in a brief filed Thursday with the U.S. Court of Appeals for the Fourth Circuit resulted in Lavabit turning over its encryption keys to the federal government and then shutting down the firm’s secure e-mail service altogether after viewing it as unacceptably tainted by the FBI’s possession of the keys.

I have a different take on the key language from Lavabit’s argument in their appellate brief though, here is mine:

First, the government is bereft of any statutory authority to command the production of Lavabit’s private keys. The Pen Register Statute requires only that a company provide the government with technical assistance in the installation of a pen- trap device; providing encryption keys does not aid in the device’s installation at all, but rather in its use. Moreover, providing private keys is not “unobtrusive,” as the statute requires, and results in interference with Lavabit’s services, which the statute forbids. Nor does the Stored Communications Act authorize the government to seize a company’s private keys. It permits seizure of the contents of an electronic communication (which private keys are not), or information pertaining to a subscriber (which private keys are also, by definition, not). And at any rate it does not authorize the government to impose undue burdens on the innocent target business, which the government’s course of conduct here surely did.

Second, the Fourth Amendment independently prohibited what the government did here. The Fourth Amendment requires a warrant to be founded on probable cause that a search will uncover fruits, instrumentalities, or evidence of a crime. But Lavabit’s private keys are none of those things: they are lawful to possess and use, they were known only to Lavabit and never used by the company to commit a crime, and they do not prove that any crime occurred. In addition, the government’s proposal to examine the correspondence of all of Lavabit’s customers as it searched for information about its target was both beyond the scope of the probable cause it demonstrated and inconsistent with the Fourth Amendment’s particularity requirement, and it completely undermines Lavabit’s lawful business model. General rummaging through all of an innocent business’ communications with all of its customers is at the very core of what the Fourth Amendment prohibits.

The legal niceties of Lavabit’s arguments are thus:

The Pen Register Statute does not come close. An anodyne mandate to provide information needed merely for the “unobtrusive installation” of a device will not do. If there is any doubt, this Court should construe the statute in light of the serious constitutional concerns discussed below, to give effect to the “principle of constitutional avoidance” that requires this Court to avoid constructions of statutes that raise colorable constitutional difficulties. Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 156–57 (4th Cir. 2010).

And, later in the pleading:

By those lights, this is a very easy case. Lavabit’s private keys are not connected with criminal activity in the slightest—the government has never accused Lavabit of being a co-conspirator, for example. The target of the government’s investigation never had access to those private keys. Nor did anyone, in fact, other than Lavabit. Given that Lavabit is not suspected or accused of any crime, it is quite impossible for information known only to Lavabit to be evidence that a crime has occurred. The government will not introduce Lavabit’s private keys in its case against its target, and it will not use Lavabit’s private keys to impeach its target at trial. Lavabit’s private keys are not the fruit of any crime, and no one has ever used them to commit any crime. Under those circumstances, absent any connection between the private keys and a crime, the “conclusion[] necessary to the issuance of the warrant” was totally absent. Zurcher, 436 U.S., at 557 n.6 (quoting, with approval, Comment, 28 U. Chi. L. Rev. 664, 687 (1961)).

What this boils down to is, essentially, the government thinks the keys to Lavabit’s encryption for their customers belong not just to Lavabit, and their respective customers, but to the United States government itself.

Your private information cannot be private in the face of the United States Government. Not just Edward Snowden, but anybody, and everybody, is theirs if they want it. That is the definition of bullshit.

[Okay, big thanks to Darth, who generously agreed to let us use the killer Strangelovian graphic above. Please follow Darth on Twitter]

Last Week’s Blizzard, This Week’s Hell

Did you know there was a blizzard last week? I’ll admit I didn’t. Never saw a peep about it across several Twitter and internet news feeds until today.

Between 28 and 60 inches of snow fell across parts of South Dakota late last week in a freakishly early snow storm, the white stuff accumulating rapidly while many of us were picking apart reports about the National Security Agency’s breaching of Tor. I was watching my feed pretty closely at the time, and never saw a thing about South Dakota’s weather.

Many if not all of South Dakota’s cattle ranchers still had herds out in summer grazing areas at the time the storm hit. The results are still being measured; somewhere between 15% and 50% of the entire South Dakota herd died in the storm, with long-term effects on the remaining herd as yet unknown.

I haven’t seen a map of the affected area, but I’ll bet these same ranchers may have been impacted by flooding earlier this year. Comprehensive maps detailing the affected area probably won’t be widely available until after Congress resolves the budget and debt ceiling disputes, restoring funding to government agencies like National Oceanic and Atmospheric Administration (NOAA) National Weather Service. Fortunately less detailed maps are available, reflecting flood warnings in western South Dakota.

The worst part of this situation isn’t the lack of predictive information in advance of the storm or impact maps in the wake of the blizzard. It’s the lack of any federal assistance to ranchers devastated by this storm; state agencies struggling with the impact of the storm on their normal operations will be challenged to respond without additional aid. Was adequate advance warning possible from NOAA’s skeleton crew? Should the affected area have been declared a federal disaster? Should there be assistance for cleanup and disposal of approximately 75,000 head of cattle? Should there be agencies looking into financial aid for those ranchers most impacted? Should there be health assessments with regard to the potential spread of disease among humans and cattle alike as the storm’s damage is documented?

Of course there should be assessments and assistance. We’ve agreed as a nation these kinds of services and more are in the best interest of the public as a whole, and we’ve funded them in the past. We help our neighbors in times of trouble just as they help us — this is and has been part of our American values.

It’s too damned bad, though, that Congressional Republicans have decided hard-working farmers — folks who ordinarily might be their base — are less important than a massive temper tantrum about health care and debts they agreed to under the last three presidential terms. Compare the speed with which Congress agreed to bail out soft-handed, flabby-assed banksters back in 2008 — the same banksters who made money off shady subprime mortgages and then tanked the economy with equally shady derivatives based on the same. It took one week from the time Congress reached a tentative agreement between parties, and passage of the Emergency Economic Stabilization Act of 2008. If speed of Congressional response were a measure of importance, helping hard-working but distressed small business owners in the heartland clearly isn’t a benchmark of note.

Badly Broken: We Are Walter White

BreakingBad_logophotoI’ll bet tonight’s blog traffic will drop sharply, and explode on Twitter — and at 9:00 p.m. EDT exactly. That’s when the last episode of AMC’s Breaking Bad will air, following a 61-hour marathon of all preceding episodes from the last five years.

A friend expressed concern and astonishment at the public’s investment in this cable TV program, versus the Intergovernmental Panel on Climate Change’s Fifth Assessment Report published Friday, expressing heightened confidence in anthropogenic climate change:

“The report increases the degree of certainty that human activities are driving the warming the world has experienced, from “very likely” or 90% confidence in 2007, to “extremely likely” or 95% confidence now.” [source]

He’s right; we’ll be utterly absorbed by the conclusion of former high school chemistry teacher and cancer patient Walter White’s tale. We’ll have spent a fraction of intellectual energy on our own existential threat, in comparison to the mental wattage we’ll expend on a fictional character’s programming mortality.

But perhaps Breaking Bad’s very nature offers clues to our state of mind. Viewers are addicted to a program that upends perspectives and forces greater examination.

— The entire story of Walter White, a middle class white guy with a good education whose cancer threatens his life and his family’s long-term financial well-being, would not be viable were it not for the dismal state of health care in America. There are no Walter Whites in Canada, for example; the U.S. has become little better than a third world narco-state, our health and shelter dependent on ugly choices like crime because our system of governance cannot respond appropriately under pressure for corporate profitability.

We cling to White, though he has become the very thing we pay our law enforcement to battle, because he is us — morally conflicted, trying to safeguard our lives and our families in a deeply corrupt system. At the end of each Breaking Bad episode the distortion of our values is evident in viewers’ failure to reject a criminal character depicting a drug lord manufacturing and selling a controlled substance, while guilty of conspiracy, murder, and racketeering in the process.

In the background as we watch this program, we permit corporate-owned congresspersons to shut down our government in a fit of pique over the illusion of better health care for all. Continue reading

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emptywheel @HearingTrees Halloween costume. Ends on Saturday.
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emptywheel @pwnallthethings My privacy rights arise from the bureaucratic insurance they will be protected. Laws do that. @PatrickCToomey
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bmaz @PhilPerspective @walterwkatz Also, I was disappointed @NBCSN did not have any programming from #COTA in Austin today.
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bmaz @PhilPerspective @walterwkatz @NBCSN Nope, but if it is Road to Ferrari, I have seen it.
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bmaz In private papers a more candid Tim Geithner speaks out http://t.co/nNn7RjDkGK Tim Geithner is a liar+fundamentally dishonest public servant
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emptywheel RT @rahulsagar: NYTimes: Former Navy SEAL Team Member Investigated for Bin Laden Disclosures http://t.co/3JABCASiBu
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emptywheel RT @ppppolls: We'll have a new #VAsen poll out tomorrow showing Mark Warner with a 9 point lead heading into the final weekend
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emptywheel @PatrickCToomey If you're a Yemeni-American extremist cleric, you may enjoy your own life at his grace. @pwnallthethings
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emptywheel I want to be a professional onside kicker. Where do I apply?
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JimWhiteGNV Did Louisville do a Gator flop to get the ball back quickly?
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emptywheel @pwnallthethings Hmmm. [Looks left, looks right, looks under arm pit behind me.] I don't have one handy, do you? @PatrickCToomey
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