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Donald Trump Agrees He Is Living By Barack Obama’s Rules

I’ve been waiting for something like this: the moment where Donald Trump concedes that Barack Obama — Hawaiian birth certificate and all — will play a key role in decisions about his ridiculous claims about hoarding classified documents.

Midway through Trump’s bid to convince Aileen Cannon to reject DOJ’s motion for a stay of her injunction against using the documents marked with classification marks seized from Trump’s beach resort, he notes that the only power he ever had to classify and declassify documents was governed by an Executive Order signed by Barack Obama on December 29, 2009.

The Government does not contest—indeed, it concedes—that the President has broad authority governing classification of, and access to, classified documents. [ECF No. 69 at 10, 18 (quoting Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988))]. In fact, the Government advocates that “the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” [ECF No. 69 at 18 (quoting Egan, 484 U.S. at 529)]. Congress provided certain parameters for controlling classified information but primarily delegated to the President how to regulate classified information. 50 U.S.C. § 3161. At the same time, Congress exempted the President from complying with such requirements. See id. § 3163 (“Except as otherwise specifically provided, the provisions of this subchapter shall not apply to the President . . .”).

President Obama enacted the current Executive Order prescribing the parameters for controlling classified information in 2009. See Exec. Order 13526 (Dec. 29, 2009). That Executive Order, which controlled during President Trump’s term in office, designates the President as an original classification authority. See id. § 1.3(a)(1). In turn, the Executive Order grants authority to declassify information to either the official who originally classified the information or that individual’s supervisors—necessarily including the President. § 3.1(b)(1), (3). Thus, assuming the Executive Order could even apply to constrain a President, cf. 50 U.S.C. § 3163, the President enjoys absolute authority under the Executive Order to declassify any information. There is no legitimate contention that the Chief Executive’s declassification of documents requires approval of bureaucratic components of the executive branch. Yet, the Government apparently contends that President Trump, who had full authority to declassify documents, “willfully” retained classified information in violation of the law. See 18 U.S.C. § 793(e); [ECF No. 69 at 9].7 Moreover, the Government seeks to preclude any opportunity for consideration of this issue.

7 Of course, classified or declassified, the documents remain either Presidential records or personal records under the PRA. [ed: See this post for how Trump debunked this claim. My emphasis]

Donald Trump concedes that Executive Order 13526 governed the classification and declassification of information on December 29, 2009. It continued to govern the classification and declassification of information on January 20, 2017. It continued to govern the classification and declassification of information on January 20, 2021. It continues to govern the classification and declassification of information today.

Donald Trump agrees that he never altered this EO. He agrees that he is bound by it still, unless the lawful President, a guy named Joe Biden, decides to change it.

This is a virtual capitulation to the arguments DOJ is making, including that the classification review of the documents he stole, the review ongoing as we speak, will be determinative of the classification status of those documents.

But it’s also a concession that he is bound by everything in the EO. There’s a whole bunch of things Trump concedes when he concedes that point (including that classified information must be kept secure).

One of those things, however, is that former Presidents — and the propagandists who work for them — still must get waivers to bypass Need to Know restrictions on classified information.

Sec. 4.4. Access by Historical Researchers and Certain Former Government Personnel.

(a) The requirement in section 4.1(a)(3) of this order that access to classified information may be granted only to individuals who have a need to-know the information may be waived for persons who:

(1) are engaged in historical research projects;

(2) previously have occupied senior policy-making positions to which they were appointed or designated by the President or the Vice President; or

(3) served as President or Vice President.

(b) Waivers under this section may be granted only if the agency head or senior agency official of the originating agency:

(1) determines in writing that access is consistent with the interest of the national security;

(2) takes appropriate steps to protect classified information from unauthorized disclosure or compromise, and ensures that the information is safeguarded in a manner consistent with this order; and

(3) limits the access granted to former Presidential appointees or designees and Vice Presidential appointees or designees to items that the person originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or designee. [my emphasis]

This part of the EO — an EO that Trump, who served but no longer serves as President, agreed he is bound by — does not say that such access must be waived. It says it may be.

May. Not must.

Moreover, this waiver requires that before waiving the Need to Know rule, agency heads first determine, in writing, that giving former Presidents and their propagandists access to classified information, “is consistent with the interest of national security.”

Right there, in the middle of his filing arguing that maybe the classification decisions Joe Biden’s Administration is making right now can be overridden by a Special Master, Donald Trump agrees that the Barack Obama order he says he is bound by means not even he gets access to this information without a waiver, and even then, only if the agency heads that own the information say it won’t make the country less safe.

In his bid to claw back classified information he stole, Donald Trump admits he’s still living by Barack Obama’s rules. And those rules, the rules Trump admits he is bound by, say he can only even access this information if Avril Haines and Paul Nakasone and William Burns and Chris Wray say he can.

Go to emptywheel resource page on Trump Espionage Investigation.

Trump’s 200 Million Inauguration Visitors and $15 Million Net Worth: The Scale of His Border Lies

Tonight, Trump will take over the airwaves to lie about the southern border in what will either be a last ditch effort to persuade Senate Republicans to stay the course supporting his temper tantrum, or will include a declaration of emergency that would pave the way to reopen government while saving face, all while creating an unbelievably dangerous precedent in the process.

Yesterday, NBC reported just how enormous are the lies the Trump Administration is telling about the southern border.

It describes that while the Administration claims to have stopped 4,000 known or suspected terrorists last year, in reality, CBP stopped just six.

U.S. Customs and Border Protection encountered only six immigrants at ports of entry on the U.S-Mexico border in the first half of fiscal year 2018 whose names were on a federal government list of known or suspected terrorists, according to CBP data provided to Congress in May 2018 and obtained by NBC News.

The low number contradicts statements by Trump administration officials, including White House press secretary Sarah Sanders, who said Friday that CBP stopped nearly 4,000 known or suspected terrorists from crossing the southern border in fiscal year 2018.

That number six is itself an exaggeration. In a piece predicting that, “the Intelligence Community is almost certainly not able to stand publicly behind what the White House and DHS are saying,” former National Counterterrorism Center Director Nick Rasmussen explains what (he correctly suspected) that number represents: visa denials based on a possible link to terrorism.

[T]hose visa denials or SIA encounters hardly equates to disruption of a terrorist plot or the “capture” of a known terrorist. Our watchlisting system is predicated on a carefully calibrated risk management approach. When the intelligence community acquires information that points to a potential link to terrorist activity, individuals are not permitted to travel to the United States. But it should not be assumed that every individual who was denied the opportunity to enter the U.S. because was in fact a would-be terrorist intent on doing us harm.

Plus, the 4,000 number equates to all such stops, not just those on the southern border.

In other words, the White House has been telling an unbelievable exaggeration to attempt to ratchet up fear to justify Trump’s tantrum.

It is, even among Trump’s fantastic lies, remarkable. Trump used a number, 4,000, that is actually 666 times higher than even a conservatively high number, 6.

To show just how big a lie it is, I calculated what two of Trump’s other most famous lies, exaggerated on such a scale, would be.

In an effort to avoid looking inadequate as compared to President Obama, whose inauguration had record crowds (much to the chagrin of those us of caught in the Purple Tunnel of Doom), Trump claimed more people attended his inauguration than ever before, meaning more than the 1.8 million who attended Obama’s first inauguration. In reality, the number was likely between 300,000 and 600,000. Take the smaller of those two numbers, exaggerate by as much as Trump is exaggerating the threat of terrorist infiltration on the southern border, and he’d have to claim 200 million people would have attended his inauguration, many more times the crowd Obama got.

Or take his net worth, another of his most epic lies.

Trump has claimed his net worth is $10 billion; the company, too, claims to make that much in a given year. Last year Forbes calculated Trump’s net worth was actually closer to $3 billion.

But if we take Trump’s exaggerated claim of $10 billion, and assumed he is exaggerating by the scale that he’s exaggerating the threat at the southern border, and it’d say his real net worth was just $15 million.

I mean, that’d make Mitt Romney far richer than Trump. Richard Blumenthal, too, would be worth more than the President. The Senate might not even let a pauper like that join their club! According to some calculations, Nancy Pelosi would even be worth more — in monetary, and not just human, worth — than Trump if he exaggerated this much.

The point is this lie is not just egregious and fact-free. It is, even among Trump’s lies, a whopper.

And Trump will go on teevee tonight to try to spread lies on an epic scale.

The Ironies of the EO 12333 Sharing Expansion for Obama and Trump

In one of his first acts as leader of the Democratic party in 2008, Barack Obama flipped his position on telecom immunity under FISA Amendments Act, which cleared the way for its passage. That was a key step in the legalization of the Stellar Wind dragnet illegally launched by George Bush in 2001, the normalization of turnkey surveillance of the rest of the world, surveillance that has also exposed countless Americans to warrantless surveillance.

Bookends of the Constitutional law president’s tenure: codifying and expanding Stellar Wind

So it is ironic that, with one of his final acts as President, Obama completed the process of normalizing and expanding Stellar Wind with the expansion of EO 12333 information sharing.

As I laid out some weeks ago, on January 3, Loretta Lynch signed procedures that permit the NSA to share its data with any of America’s other 16 intelligence agencies. This gives CIA direct access to NSA data, including on Americans. It gives all agencies who jump through some hoops that ability to access US person metadata available overseas for the kind of analysis allegedly shut down under USA Freedom Act, with far fewer limits in place than existed under the old Section 215 dragnet exposed by Edward Snowden.

And it did so just as an obvious authoritarian took over the White House.

I’ve was at a privacy conference in Europe this week (which is my partial explanation for being AWOL all week), and no one there, American or European, could understand why the Obama Administration would give Trump such powerful tools.

About the only one who has tried to explain it is former NSA lawyer Susan Hennessey in this Atlantic interview.

12333 is not constrained by statute; it’s constrained by executive order. In theory, a president could change an executive order—that’s within his constitutional power. It’s not as easy as just a pen stroke, but it’s theoretically possible.

[snip]

When they were in rewrites, they were sort of vulnerable. There was the possibility that an incoming administration would say, “Hey! While you’re in the process of rewriting, let’s go ahead and adjust some of the domestic protections.” And I think a reasonable observer might assume that while the protections the Obama administration was interested in putting into place increased privacy protections—or at the very least did not reduce them—that the incoming administration has indicated that they are less inclined to be less protective of privacy and civil liberties. So I think it is a good sign that these procedures have been finalized, in part because it’s so hard to change procedures once they’re finalized.

[snip]

I think the bottom line is that it’s comforting to a large national-security community that these are procedures that are signed off by Director of National Intelligence James Clapper and Attorney General Loretta Lynch, and not by the DNI and attorney general that will ultimately be confirmed under the Trump Administration.

Hennessey’s assurances ring hollow. That’s true, first of all, because it is actually easier to change an EO — and EO 12333 specifically — than “a pen stroke.” We know that because John Yoo did just that, in authorizing Stellar Wind, when he eliminated restrictions on SIGINT sharing without amending EO 12333 at all. “An executive order cannot limit a President,” Yoo wrote in the 2001 memo authorizing Stellar Wind. “There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.” And so it was that the NSA shared Stellar Wind data with CIA, in violation of the plain language of EO 12333 Section 2.3, until that sharing was constrained in 2004.

Yes, in 2008, the Bush Administration finally changed the language of 2.3 to reflect the SIGINT sharing it had started to resume in 2007-2008. Yes, this year the Obama Administration finally made public these guidelines that govern that sharing. But recent history shows that no one should take comfort that EOs can bind a president. They cannot. The Executive has never formally retracted that part of the 2001 opinion, which in any case relies on a 1986 OLC opinion on Iran-Contra arguing largely the same thing.

No statutorily independent oversight over vastly expanded information sharing

Which brings us to whether the EO sharing procedures, as released, might bind Trump anymore than EO 12333 bound Bush in 2001.

In general, the sharing procedures are not even as stringent as other surveillance documents from the Obama Administration. The utter lack of any reasonable oversight is best embodied, in my opinion, by the oversight built into the procedures. A key cog in that oversight is the Department of National Intelligence’s Privacy and Civil Liberties Officer — long inhabited by a guy, Alex Joel, who had no problem with Stellar Wind. That role will lead reviews of the implementation of this data sharing. In addition to DNI’s PCLO, NSA’s PCLO will have a review role, along with the General Counsels of the agencies in question, and in some limited areas (such as Attorney Client communications), so will DOJ’s National Security Division head.

What the oversight of these new sharing procedures does not include is any statutorily independent position, someone independently confirmed by the Senate who can decide what to investigate on her own. Notably, there is not a single reference to Inspectors General in these procedures, even where other surveillance programs rely heavily on IGs for oversight.

There is abundant reason to believe that the PATRIOT Act phone and Internet dragnets violated the restrictions imposed by the FISA Court for years in part because NSA’s IG’s suggestions were ignored, and it wasn’t until, in 2009, the FISC mandated NSA’s IG review the Internet dragnet that NSA’s GC “discovered” that every single record ingested under the program violated FISC’s rules after having not discovered that fact in 25 previous spot checks. In the past, then, internal oversight of surveillance has primarily come when IGs had the independence to actually review the programs.

Of course, there won’t be any FISC review here, so it’s not even clear whether explicit IG oversight of the sharing would be enough, but it would be far more than what the procedures require.

I’d add that the Privacy and Civil Liberties Oversight Board, which provided key insight into the Section 215 and 702 programs, also has no role — except that PCLOB is for all intents and purposes defunct at this point, and there’s no reason to believe it’ll become operational under Trump.

Obama vastly expanded information sharing with these procedures without implementing the most obvious and necessary oversight over that sharing, statutorily independent oversight.

Limits on using the dragnet to affect political processes

There is just one limit in the new procedures that I think will have any effect whatsoever — but I think Trump may have already moved to undercut it.

The procedures explicitly prohibit what everyone should be terrified about under Trump — that he’ll use this dragnet to persecute his political enemies. Here’s that that prohibition looks like.

Any IC element that obtains access to raw SIGINT under these Procedures will:

[snip]

Political process in the United States. Not engage in any intelligence activity authorized by these Procedures, including disseminations to the White House, for the purpose of affecting the political process in the United States. The IC element will comply with the guidance applicable to NSA regarding the application of this prohibition. Questions about whether a particular activity falls within this prohibition will be resolved in consultation with the element’s legal counsel and the General Counsel of the Office of the Director of National Intelligence (ODNI) (and the DoD’s Office of the General Counsel in the case of a DoD IC element).

If you need to say the IC should not share data with the White House for purposes of affecting the political process, maybe your info sharing procedures are too dangerous?

Anyway, among the long list of things the IC is not supposed to do, this is the only one that I think is so clear that it would likely elicit leaks if it were violated (though obviously that sharing would have to be discovered by someone inclined to leak).

All that said, note who is in charge of determining whether something constitutes affecting political processes? The IC agency’s and ODNI’s General Counsel (the latter position is vacant right now). Given that the Director of National Intelligence is one of the positions that just got excluded from de facto participation in Trump’s National Security Council (in any case, Republican Senator Dan Coats has been picked for that position, which isn’t exactly someone you can trust to protect Democratic or even democratic interests), it would be fairly easy to hide even more significant persecution of political opponents.

FBI and CIA’s expanded access to Russian counterintelligence information

There is, however, one aspect of these sharing guidelines that may have work to limit Trump’s power.

In the procedures, the conditions on page 7 and 8 under which an American can be spied on under EO 12333 are partially redacted. But the language on page 11 (and in some other parallel regulations) make it clear one purpose under which such surveillance would be acceptable, as in this passage.

Communications solely between U.S. persons inadvertently retrieved during the selection of foreign communications will be destroyed upon recognition, except:

When the communication contains significant foreign intelligence or counterintelligence, the head of the recipient IC element may waive the destruction requirement and subsequently notify the DIRNSA and NSA’s OGC;

Under these procedures generally, communications between an American and a foreigner can be read. But communications between Americans must be destroyed except if there is significant foreign intelligence or counterintelligence focus. This EO 12333 sharing will be used not just to spy on foreigners, but also to identify counterintelligence threats (which would presumably include leaks but especially would focus on Americans serving as spies for foreign governments) within the US.

Understand: On January 3, 2017, amid heated discussions of the Russian hack of the DNC and public reporting that at least four of Trump’s close associates may have had inappropriate conversations with Russia, conversations that may be inaccessible under FISA’s probable cause standard, Loretta Lynch signed an order permitting the bulk sharing of data to (in part) find counterintelligence threats in the US.

This makes at least five years of information collected on Russian targets available, with few limits, to both the CIA and FBI. So long as the CIA or FBI were to tell DIRNSA or NSA’s OGC they were doing so, they could even keep conversations between Americans identified “incidentally” in this data.

I still don’t think giving the CIA and FBI (and 14 other agencies) access to NSA’s bulk SIGINT data with so little oversight is prudent.

But one of the only beneficial aspects of such sharing might be if, before Trump inevitably uses bulk SIGINT data to persecute his political enemies, CIA and FBI use such bulk data to chase down any Russian spies that may have had a role in defeating Hillary Clinton.

Waveland and The North Side, Sweet Home Chicago

pj-bh129_sp_wri_g_20120514203124I was raised in a pretty educated house. We travelled too, from Phoenix to El Paso to Dallas, Houston, New Orleans, Memphis, Miami and Detroit. But those were hit and run trips, most by air, some by car, when visiting grandparents and other relatives during the summer. Nevertheless, I thought I knew the country well. I had also already spent portions of summers working in Santa Monica restoring glorious cars and sometimes meeting stars.

I was just turned 18, a man or the world, and god I knew it. But I was really none of that at all. I didn’t know shit.

Then I started college and moved into a dorm. By happenstance, at Arizona State University, I was assigned to an asylum, er floor, chock full of similar kids, on that floor almost all from Chicago and New Jersey. The first few days were an amazing, though not rude in the least, awakening. One group dragged me, literally almost kicking and screaming, to see Bruce Springsteen rock the venerable, and historic, Grady Gammage theater at ASU almost to the ground. That was life changing in a way.

The others were the Chicagoans. They taught me the love and misery of the Cubs and the perpetual Windy City. And Chicago blues and rock. Many of the Chicagoans I met that way in college are still friends to this day. Their parents all came out, then and now as they can, for Spring Training to see their Cubbies. Being from here, I always took spring training for granted growing up as a kid. It was kind of a yawner. But the Cubs fans had a love, purpose and passion that was incredible. Anybody that went to the old Hohokam Park knows how greatly insane, drunken and wonderful it was.

Fast forward to the present day. One of those Chicagoans had parents who, when they retired, moved here permanently. To be close to their son and the winter home of their beloved Cubs. I knew them well. The father wanted to see the Cubs in the World Series before he died. He did, but not by much. He slipped into peaceful sleep right after they won the National League Championship, and never woke up. But, ain’t that a Cubs fan? This is for you Richard, RIP.

That is my own personal story of how and why the Cubs touched me, not just this year, but long ago. The stories are legion. Tell us yours.

The inestimable Wright Thompson has penned a simply beautiful piece that captures so much of the everything goodness that is the Cubs World Series win:

CUBS FANS awoke Wednesday to one last wait, with little to do before Game 7 but think, about themselves and their families, about the people who’ve come and gone during these 108 years of failure. Hundreds found themselves drawn to Wrigley Field, where workers were already breaking down the concessions and cleaning out the freezers. Some people said they didn’t even mean to come. They started off on a trip to the store and ended up standing in front of the stadium’s long brick wall facing Waveland Avenue. Many wrote chalk notes to the dead. Some dedicated messages. This one’s for you, Dad. Others wrote names. Dan Bird. Ben Bird. Eugene Hendershott. A man with a bright smile but melancholy eyes wrote the name of his late wife, Andrea Monhollen. They met four blocks from here, on Racine. She’s been gone six years.

“Cancer,” John Motiejunas said.

He looked around at the names, each one as special to some stranger as his wife’s name is to him. All these chalk ghosts longed to see a day like this one. Each name represented an unfulfilled dream. The big bright murals made the wall seem fun and festive from afar, but a closer look revealed life stripped of romanticism. “A lot of people waited their whole lives,” Motiejunas said. He took a picture of the wall and then left, walking through the light rain that had begun to fall.

There is no way for me to recommend you reading Thompson’s entire piece enough, it is fantastic and a tear jerker. And if you think that quote from the top is good, you REALLY need to see the rest.

Sports are a lazy diversion from reality in America I guess. Or they are a metaphor for everything that is awesome about America. Or it is just a game. Or, just maybe, all of the above.

It has been a long and painful slog through the swamp of an ugly political season. One that started far too early, and promises to never stop even after the election. I could insert links and cites, and yadda, yadda, yadda but what difference does it make anymore? One candidate was born a Cubs fan, and the other literally thinks he was the second coming of Babe Ruth and the world simply was deprived of recognizing his narcissistic awesomeness because he went into the business (of bankruptcy and fraud) world instead.

TWENTY MILES NORTHWEST, cars parked in groups along the winding paths of the All-Saints Cemetery. An hour remained until the 5 p.m. closing time. It’s a Catholic burial ground, out in the middle-class suburbs, and there are dozens, maybe hundreds, of Cubs flags and hats and license plates and signs. It’s one of many places around Chicago this past week where the conflicting ideas of joy and pain leave the realm of the psychological and become attached to action. People come here for many reasons, to say a little prayer, or talk to someone, to themselves, or to believe that their loved one knows what is happening tonight. Last Friday, an old man in a Cubs jacket stood over a grave and left a pennant and a Cubs pumpkin. Yesterday, a middle-aged woman named Maureen stood for the longest time at a grave not far away. A sign said “Believe.” Maureen touched her hand to the Cubs logo on her chest and smiled, looking back at the ground.

“My son,” she said.

Then she pointed across the rolling hill to the most famous grave in the cemetery, which is where she was headed next, to pay respects to Harry Caray before going to watch the game. His stone has green apples on top, an inside joke referencing a quote about the Cubs one day making it to a World Series just as surely as God made green apples.

Wright Thompson has painted the perfect picture of the Cubs fan. It touched me. And made me remember so many things, and so many people. I know them. You know them. They are us, and we they. Wright also made me forget for a bit the intellectually demeaning tornadic hell that is the 2016 election. I hope you will find the same moment of peace.

Right now, football is boring, Formula One sucks and the NBA doesn’t yet matter. So, this is yer Emptywheel Trash Talk for this week. Share your stories and thoughts. Music is Sweet Home Chicago. There were a lot of versions to choose from, but this seemed to be the right one. The original Robert Johnson version. Keep in mind, when Robert Johnson first recorded that song, the Cubs had already not had a World Series victory for 28 years. That string only ended this week. As a bonus, I also include a newer version by Eric, BB, Buddy, Mick and some dude named Obama. Have a great weekend folks.

Mullah Mansour Drone Strike: Important Milestone or Radicalizing Event?

How much more ironic could it be? More than 43 years after the last Americans evacuated Vietnam, ending our disastrous occupation there, the dateline reads Hanoi on President Barack Obama’s statement today on the US drone strike that killed Mullah Akhtar Muhammad Mansour. Mansour was the head of Afghanistan’s Taliban but was in Pakistan at the time the US killed him with a drone, striking a similarity to the US “secret” bombing of Cambodia during the Vietnam war.

From today’s New York Times, we have parts of Obama’s statement:

Calling the death “an important milestone,” President Obama said in a statement, released just as he was meeting with top officials in Vietnam, that the United States had “removed the leader of an organization that has continued to plot against and unleash attacks on American and coalition forces.”

“Mansour rejected efforts by the Afghan government to seriously engage in peace talks and end the violence that has taken the lives of countless innocent Afghan men, women and children,” Mr. Obama continued in the statement. “The Taliban should seize the opportunity to pursue the only real path for ending this long conflict — joining the Afghan government in a reconciliation process that leads to lasting peace and stability.”

So Obama is saying that the Taliban should respond to our extrajudicial killing of their leader by reconciling with the Afghan government (chosen in large part by John Kerry) and working toward peace. What are the odds of that happening? Max Abrahms has some very important points to make on that topic:

Dr Max Abrahms, from Northeastern University in Boston, said the US Government does not look carefully enough at the strategic implications of its strikes on extremist leaders.

He said he had done a number of studies on leadership decapitation of a militant group and he had not found a statistically significant reduction in the amount of violence perpetrated by the group after a leader was removed.

“In fact these decapitation strikes can actually be counter-productive, because one of the assumptions of the targeted killing campaigns is that the replacement of the leader that you killed will be more moderate,” Dr Abrahms said.

“And yet I find just the opposite to be true. The replacement is even more extreme.

“So for that reason, in the immediate aftermath of a successful targeted killing, like over this weekend, the group’s violence tends to become even more extreme, in the sense that it’s even more likely to attack civilian targets.”

And so our circle of irony is complete. Obama’s statement on the killing of Mansour, released from Vietnam, shows that US military misadventures still rely on faulty logic when major moves are made. A strike made to make the Taliban more peaceful seems virtually certain to result in more indiscriminate killing of civilians.

Because I know how much Marcy enjoys miraculous “left behind” documents, I couldn’t resist following up on a Twitter reference I saw flit by yesterday about how a passport for Mansour somehow survived the conflagration in the taxi in which Mansour met his death by drone. By following it, though, I found even more deep irony in the drone strike. This article by ToloNews carries a photograph of a pristine-looking passport. Compare that with the photo in the New York Times article linked above with the burned out wreckage of the vehicle Mansour was said to have been in when hit. How could the passport have survived?

But wait, there’s more! ToloNews tells us that the passport has Mansour’s name and carries a valid Iranian visa. Furthermore:

Meanwhile, a number of analysts said the Taliban in recent months tried to extend relationships with Iran and Russia to fight Daesh and that there is a possibility that Mansour traveled to Iran to escape ISI and talk with Iranian officials.

“Iran is afraid of Daesh presence in Afghanistan, because Daesh is an enemy to Iranian clerics; therefore, Iran wants to eliminate Daesh with the help of the Taliban. Previously, Taliban had strong affiliation to Saudi Arabia, but now there is a rift between Iran and Saudi Arabia and Iran wants to expand its influence on the group [Taliban],” political analyst Shafiq Hamdam said.

So while Mansour and his group have continued to reject peace talks with the Afghan government, at least some observers believe that he was in the process of trying to join the fight against Islamic State. And it may well be that he died because of that effort. Here’s a map of the region, showing that the site of the drone attack, Ahmad Wal, lies about 100 miles away from Quetta (where the Afghan Taliban has long been believed to be headquartered) along the highway that is the most direct route to Iran from Quetta.

Google map of the region surrounding Ahmed Wal, where Mullah Monsour was killed.

Google map of the region surrounding Ahmed Wal, where Mullah Monsour was killed.

Biased Pluralism and the Defense of “Reality” in the Democratic Primary

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Last week, I pointed to a problem with Jonathan Chait’s defense of Hillary Clinton’s “pluralistic” approach to governance, noting that in an era of weak labor organization, such an approach leaves out the views of the great majority of working people, precisely the kinds of people Bernie Sanders is attracting.

I didn’t think of it at the time, but since got reminded of an important paper by Martin Gilens and Benjamin Page, released in 2014. It used a dataset matching polling data to policy outcomes to test four theories for how our political system works: Majoritarian Democracy (meaning policies adopted reflect what most people want), Dominance by Economic Elites (meaning the rich get what they want), Majoritarian Pluralism (meaning interest groups, including those that represent the non-wealthy, get what they want), and Biased Pluralism (meaning interest groups that represent the views of the economic elite get what they want).

Ultimately, the paper showed that our system provides what interest groups want, not what the majority want. Importantly, it also noted that the interest groups that have influence don’t actually represent the preferences of the average citizen (which is defined to be policies supported by a median income voter).

But net interest-group stands are not substantially correlated with the preferences of average citizens. Taking all interest groups together, the index of net interest-group alignment correlates only a non-significant .04 with average citizens’ preferences!

It explains this, in part, because there are so many more interest groups (which include corporations) representing the interests of the economic elite that ultimately they’ll guide policy even when including those interest groups representing the interests of the non-elite.

As a result, majoritarian views — what most Americans want — have almost no influence on policy.

The estimated impact of average citizens’ preferences drops precipitously, to a non-significant, near-zero level. Clearly the median citizen or “median voter” at the heart of theories of Majoritarian Electoral Democracy does not do well when put up against economic elites and organized interest groups. The chief predictions of pure theories of Majoritarian Electoral Democracy can be decisively rejected. Not only do ordinary citizens not have uniquely substantial power over policy decisions; they have little or no independent influence on policy at all.

When the majority gets what they want, it is because the elite interest groups favor the same policy, not because anyone is responding to the interests of the average voter.

Finally, the paper further shows that that is even more true when the majority wants change.

A final point: Even in a bivariate, descriptive sense, our evidence indicates that the responsiveness of the U.S. political system when the general public wants government action is severely limited. Because of the impediments to majority rule that were deliberately built into the U.S. political system—federalism, separation of powers, bicameralism—together with further impediments due to anti-majoritarian congressional rules and procedures, the system has a substantial status quo bias. Thus when popular majorities favor the status quo, opposing a given policy change, they are likely to get their way; but when a majority—even a very large majority—of the public favors change, it is not likely to get what it wants.

So it’s one thing if the majority wants things to remain the same, when they might get what they want, but another thing if they’d like to change the status quo, when they almost never will.

I raise all this because it provides an important reminder for this year’s bizarre presidential election. At least on the Democratic side, the findings totally reinforce both candidates. Bernie Sanders is absolutely right that the system is rigged, that the government’s policies don’t reflect the interests of average Americans. But Hillary Clinton is right, too, that the way to get things done in DC — or at least the way that things have gotten done in DC — is to negotiate compromises within the existing interest group structure (which includes a nearly impotent labor movement and overly powerful corporations). She’s even probably right that in the current system you need to co-opt a certain number of economic elite interest groups (that is, largely, corporate groups) to be able to acquire the critical mass of support from interest groups to get a policy adopted. You’ve got to make enough Goldman Sachs speeches to get them to the table, Hillary might excuse her boondoggle speeches.

But that also has certain implications for the policy debate going on. One problem Hillary is having is in needing to champion — to legitimize — the compromises made within that system: notably, Dodd-Frank and Obama’s insurance reform. She’s doing that by suggesting, with the help of wonk-boys like Chait, that the compromises made in those legislative processes were all that were possible at the time. As I hope to lay out, not only the record — but specific actions by those who remain a part of the Hillary entourage — disprove that claim, at least in theory: 2009 was the rare year when that might not have been true. In addition, Hillary’s choice to function within the existing pluralist system also all presumes that the existing set of interest groups, with the nearly impotent labor movement and overly powerful corporations, are a fixed set.

Which brings us back to Bernie’s call for a revolution, which we might think of as providing average people some means of being an interest group again. Whatever else it is, it could become (unlike the Dean organization that became the 50 state strategy and Obama for America that became a messaging organization within a neutered DNC) a resilient interest group. In many ways, it is a more institutionalized and better funded reincarnation of some recent protest groups, with a very strong overlap with Occupy Wall Street, and as such might have staying power, regardless of what happens with the primary.

But that brings us back to the other problem Hillary (as well as the institutional candidates on the Republican side) is having: voters aren’t dummies.

While you can defend the claim that Obama’s insurance reform was all that was possible, that doesn’t mean — even with the many benefits it has brought about — that it was a sound compromise, much less policy that served the interest of the majority or the country as a whole. Similarly, while you can claim (even more dubiously) that foaming the runway to give the banks a soft landing was necessary, real Americans know we all would be better off with Lloyd Blankfein in prison. That is, you can claim that interest group policies are all we can get, but at that same time that means that interest group policies don’t self-evidently serve the interests of Americans. Hillary can’t admit that, but that’s the truth confirmed in Gilens and Page. It’s also the reason why the wonk-boys are working so hard to claim that these policies serve the good of most people, to try to refute the obvious ways they don’t.

Hillary may well win (the primary, at least) based on truthfully claiming she represents the continuation of Obama’s policies, as Greg Sargent argued yesterday.

Beyond this, the big picture here is that Sanders has gotten as far as he has by offering up a serious, if partial, indictment of the Obama years. He is arguing that Obama era reforms — Dodd-Frank, Obamacare, his climate agenda — ended up being woefully inadequate to the scale of our challenges, because he failed to sufficiently rally the grassroots against the power of the oligarchy and because the Democratic establishment still remains in thrall to oligarchic money. Clinton full-throatedly defends Obama’s accomplishments as very much worth preserving, rejects the Sanders-promulgated notion that Obama could have gotten a whole lot more than he did, and vows to build on those achievements.

The bigger, more diverse, more moderate electorates in the contests to come might be more receptive to Clinton’s arguments along these lines. And one thing to watch will be whether Sanders tries to find a way to temper the criticism of the Obama years that is laced through the story he is telling.

I’d temper that and note that Bernie is probably closer to the real foreign policy successes of Obama’s post-Hillary term, including opening relations with Iran and Cuba and demanding that the Saudis actually start fighting ISIL. But on the Obama policies that are most obviously the result of letting interest groups, from the impotent labor movement to the overly powerful corporations, direct policy, Hillary is the inheritor of a historically fairly popular legacy. That’s true, and it may well be enough, barring any unforeseen economic reversals, though economic reversals are actually looking pretty likely, in which case that legacy may be of far less value.

The problem with being in that very advantageous position is that, especially this year, voters are all too aware that those policies didn’t necessarily serve their needs.  And that, it seems, explains the disjuncture between Hillary’s claim (true or not) to best be able to negotiate the interest groups of DC and the fact that that hasn’t been enough to convince voters.

On Hiroshima Anniversary, Iran Deal Opponents Make One More Push Based on Parchin Photos

Hiroshima was flattened by the US on August 6, 1945 by the deployment of a nuclear weapon.

Hiroshima was flattened by the US on August 6, 1945 by the deployment of a nuclear weapon. (Wikimedia Commons)

Seventy years ago today, on August 6, 1945, the US dropped an atomic bomb on Hiroshima, Japan. By November of that same year, approximately 130,000 people were dead because of that single bomb, which targeted a civilian population. Three days later, the US deployed a second nuclear weapon in Nagasaki. It appears that these horrific weapons were not needed, despite the prevailing myth surrounding their use. Even with the subsequent proliferation of nuclear weapons, the US remains the only country to have ever used them outside a testing scenario, while countries as unstable as North Korea and Pakistan have achieved nuclear weapons capability at some level.

As might be expected, Japan’s Prime Minister Shinzo Abe is using the occasion of this anniversary to call for an end to nuclear weapons. Last week, Javad Zarif made an excellent move, in suggesting that now that Iran has signed an agreement with the P5+1 group of countries on its nuclear technology, there should be a push to remove nuclear weapons and all WMD from the Middle East. Recall that Iran has agreed to the most intrusive inspections regime ever put into place in a country that didn’t first lose a war, making their call for inspections of Israel’s nuclear weapons program especially strong. These two calls together represent an appeal to those who prefer peace over war while placing the highest possible value on civilian lives.

That attitude of favoring peace over war and putting civilians first stands in stark contrast to those who oppose the Joint Comprehensive Plan of Action signed by the P5+1 and Iran. As Barack Obama pointed out yesterday, those who are opposing the deal are the same people who were so tragically wrong about the decision to invade Iraq in 2003:

President Obama lashed out at critics of the Iran nuclear deal on Wednesday, saying many of those who backed the U.S. invasion of Iraq now want to reject the Iran accord and put the Middle East on the path toward another war.

/snip/

While calling the nuclear accord with Iran “the strongest nonproliferation agreement ever negotiated,” Obama also seemed to turn the vote on the deal into a referendum on the U.S. invasion of Iraq a dozen years ago, a decision he portrayed as the product of a “mind-set characterized by a preference for military action over diplomacy.”

Obama said that when he first ran for president, he believed “that America didn’t just have to end that war. We had to end the mind-set that got us there in the first place.” He added that “now, more than ever, we need clear thinking in our foreign policy.”

One of the saddest aspects of this push for war over diplomacy is that much of it comes from deep within the US government itself. In many of my posts on the path to the P5+1 accord with Iran, I have noted the nefarious process of anonymous “disclosures” coming sometimes from “diplomats” and sometimes from “intelligence sources” that get transcribed into the press by a small handful of “reporters”. Usually the worst offender on this front is George Jahn of AP. A recent retiree from this fold is Fredrik Dahl who now, ironically, appears to be the primary press contact for the IAEA. But never fear, rushing into the void created by the departure of Dahl (or perhaps his insertion into an operative role further inside the apparatus), we have the dynamic duo of Eli Lake and Josh Rogin. Their blather being put out as “journalism” is not worthy of a link here. If you want to find it, try going to Marcy’s Twitter and searching for “not The Onion”.

Of course, the high point of this process of manufacturing nuclear charges against Iran and then getting them into the media is the notorious “laptop of death“. Running a close second, though, are the charges that Iran has engaged in developing a high explosives trigger device at the Parchin site. Showing that those who engage in this level of deceit have absolutely no pride, the charges of this work have proceeded despite an equally plausible explanation that the high explosives chamber could just as easily have been used to develop nanodiamonds. Further, those making these charges have allowed themselves to be baited into a ridiculous level of “analysis” of satellite photos of the site, with hilarious results from how Iran has played them.

Despite this level of embarrassment, one of the primary tools in this process, David Albright, couldn’t resist one last try on the satellite photo front. Yesterday, he breathlessly informed us that there are a couple of new sheds on the Parchin site and there is even some debris. And, get this, a crate has been moved! Seriously, here is the “meat” of Albright’s analysis (pdf): Read more

Iran, P5+1 Reach Historic Final Agreement, Frustrating Opponents Who Push for War

Times snip

Partial screengrab of New York Times article announcing agreement. John Kerry and Ernest Moniz are on the right, while Javad Zarif and Ali Akbar Solehi are in the center of the photograph.

It has been nearly 20 months since the group of P5+1 countries (China, France, Germany, the Russian Federation, the United Kingdom and the United States) and Iran reached an interim agreement limiting Iran’s work on nuclear technology. Progress since that interim agreement has been painfully slow (and obstructed as much as possible by Israel’s Benjamin Netanyahu, neocons in Congress and United Against Nuclear Iran), with a number of “deadlines” for achieving the final agreement missed. Journalists covering the final phase of negotiations in Vienna over the last two weeks eventually got so exasperated with the process that they began reporting on the number of Twizzlers consumed by the negotiators.

Fortunately, the US, led by John Kerry, with technical support from Ernest Moniz (with the backing of Barack Obama) and Iran, led by Javad Zarif, with technical support from Ali Akbar Salehi (with the backing of Hassan Rouhani) did not give up on the process. A final agreement (pdf) has now been published.

The following sentence appears in the agreement twice. It is the final sentence in the Preface and is the third point in the Preamble:

Iran reaffirms that under no circumstances will Iran ever seek, develop or acquire any nuclear weapons.

That is the heart of what the entire process has been about. Iran’s uranium enrichment work, which grew to over 18,000 centrifuges installed at two facilities, was viewed as a rapid route to a nuclear weapon. Even though no facility in Iran has been identified where enrichment was proceeding to the highly enriched levels needed for a bomb and Iran had demonstrated no ability to make a bomb from highly enriched material, “conventional wisdom” stated that Iran would only need a few months (as of the signing of the interim agreement) to produce a working bomb. Throughout the process, Iran has claimed the work was only for peaceful uses (electricity production and the production of medical isotopes). Things had gotten really ugly back in 2011 when the IAEA lent credence to claims that originated in the Laptop of Death, where Iran was accused of past work aiming at developing a bomb. By making the blanket statement that Iran will never seek a nuclear weapon, Iran is publicly acknowledging that the West will reinstate economy-crippling sanctions should evidence surface that it is seeking a weapon. Further, by saying it “reaffirms” as much, Iran is sticking to its previous claims that it has not sought a weapon in the past. Those dual points are important enough to be appear twice on the first page of the agreement.

On first blush, the final agreement looks quite robust. I intend to address only the technical aspects of the agreement and will leave to others analysis of the aspects of the plan relating to the removal of sanctions, although it is interesting that it appears that the plan will be submitted for UN Security Council approval before Congress is expected to have a chance to chime in.

The plan is referred to as the Joint Comprehensive Plan of Action, or JCPOA. It establishes a Joint Commission of P5+1 and Iran that will monitor implementation of the agreement.

Enrichment

In order to achieve the primary aim of taking Iran’s “breakout time” (the time estimated to produce enough highly enriched uranium for a bomb) from the range of just a few months at the time of the signing of the interim agreement to the stated goal of at least one year, Iran now agrees to stop all enrichment work with radioactive material at its Fordo site (the underground site that prompted the US to develop a new generation of bunker buster bombs) and to greatly reduce the number of centrifuges in use at Natanz. Further, Iran will no longer enrich uranium above 3.67%. Iran agrees to keep its stockpile of 3.67% enriched uranium at 300 kg or less. Here is the wording for the key part of that aspect of the agreement (from page 7): Read more

Amid Even More Training Failures, US Frames Syrian Effort as Just Starting. Again.

Alert readers here who have kept their scorecards up to date know that the “secret” US effort to train rebels in Syria actually began as early as November of 2012, more than two and a half years ago, even though Obama did his best to obscure that date once it became expedient to nudge the date of entry for the first graduates of that program. The US later decided to go above-board with the training effort for Syria (after spectacular failures of identifying “moderates”), and last fall approved $500 million to a program to train and arm those elusive “moderates” once again. Despite the huge expenditure authorized for the program, it turns out that the US appears to have overlooked a key detail: the “moderate” rebels whom they seek to now fight only ISIS and not Assad simply don’t exist. We can only presume that those who wish to fight Assad are funneled to the covert program, which appears to have been put into place to topple Assad from power.

Robert Burns of AP has a story today describing how the US program has failed to produce the thousands of trainees that were planned:

Fewer than 100 Syrian rebels are currently being trained by the U.S. military to fight the Islamic State group, a tiny total for a sputtering program with a stated goal of producing 5,400 fighters a year.

The training effort is moving so slowly that critics question whether it can produce enough capable fighters quickly enough to make a difference. Military officials said last week that they still hope for 3,000 by year’s end. Privately, they acknowledge the trend is moving in the wrong direction.

/snip/

The main problem thus far has been finding enough Syrian recruits untainted by extremist affiliations or disqualified by physical or other flaws. Of approximately 6,000 volunteers, about 1,500 have passed muster and await movement to training camps in other countries. Citing security concerns, the Pentagon will not say exactly how many are in training. Officials said that as of Friday, the number was under 100 and that none has completed the program.

“We have set the bar very high on vetting,” said Col. Steve Warren, a Pentagon spokesman.

Maj. Gen. Michael Nagata, the Central Command special operations commander who is heading the program, wants volunteers with more than a will to fight.

“We are trying to recruit and identify people who … can be counted on … to fight, to have the right mindset and ideology,” and at the same time be willing to make combating IS their first priority, Defense Secretary Ash Carter told the House Armed Services Committee on June 17.

“It turns out to be very hard to identify people who meet both of those criteria,” Carter said.

Many Syrian rebel volunteers prefer to use their training to fight the government of President Bashar Assad, the original target of their revolution. While IS has been a brutal occupant of much of their country, the rebels see the extremists as fighting a parallel war.

Ah, but fear not, dear US war mongers! Burns reports that when Tammy Duckworth recently asked Joint Chiefs Chair Dempsey if this training effort was worth continuing, he had this ringing endorsement of the the program: “It’s a little too soon to give up on it.”

So, we’ve had the covert training going on for 32 months. We approved $500 million for open training nine months ago, but have under a hundred trainees in the program now, with zero graduates. And yet, if you ask the military, training in Syria is just getting started and it’s too soon to give up on it. Recognizing failure is just not possible in the US military.

New York Times Finally Admits US Lied About Ending Afghan War

I will go ahead and say it this time. I told you so. Back in December, the Obama Administration tried its best to create the fiction that the war in Afghanistan was coming to an end. I called bullshit then. Finally, four months later, the New York Times has come to the same realization as well:

Months after President Obama formally declared that the United States’ long war against the Taliban was over in Afghanistan, the American military is regularly conducting airstrikes against low-level insurgent forces and sending Special Operations troops directly into harm’s way under the guise of “training and advising.”

In justifying the continued presence of the American forces in Afghanistan, administration officials have insisted that the troops’ role is relegated to counterterrorism, defined as tracking down the remnants of Al Qaeda and other global terrorist groups, and training and advising the Afghan security forces who have assumed the bulk of the fight.

But the US military thinks nothing of gaming the system to bring action where they want it:

Rather than ending the American war in Afghanistan, the military is using its wide latitude to instead transform it into a continuing campaign of airstrikes — mostly drone missions — and Special Operations raids that have in practice stretched or broken the parameters publicly described by the White House.

/snip/

“They are putting guys on the ground in places to justify the airstrikes,” one of the officials said. “It’s not force protection when they are going on the offensive.”

And it’s not just field-level commanders making these decisions to circumvent the conditions laid out by the White House for fighting:

Commenting on the continuing military operations against the Taliban, the top American commander in Afghanistan, Gen. John F. Campbell, vehemently denied accusations that he was putting troops into harm’s way just to enable more airstrikes.

He has insisted that it is within his purview to target Taliban insurgents who pose a threat not just to American or NATO troops but to any Afghan security forces. And his options on the ground were clear, he said in an interview, even if Washington’s public description of them was not.

“Washington is going to have to say what they say politically for many different audiences, and I have no issue with that,” General Campbell said. “I understand my authorities and what I have to do with Afghanistan’s forces and my forces. And if that doesn’t sell good for a media piece then, again, I can’t worry about it.”

Honey badger John Campbell don’t care about selling a media piece when there are brown people to be droned.

But even this expanded role for US troops over what they are supposed to be doing isn’t helping, as our “trained” Afghan troops continue to lose the war. Buried deep in the article is a leak of classified information that Afghan troop losses this year are running 54% higher than last year’s disastrous level of losses. This will not be sustainable for very long at all. It seems likely to me that sometime this summer (or at the very least no later than next summer), the Afghan military will simply melt away in the face of Taliban wins on multiple fronts.