Obama’s Still Obfuscating about Domestic Surveillance

Adam Serwer does a pretty thorough job debunking Obama’s lame effort to defend his civil liberties record.

When people start being concerned about, “You haven’t closed Guantánamo yet,” I say, listen, that’s something I wanted to get done by now, and I haven’t gotten done because of recalcitrance from the other side. Frankly, it’s an easy issue to demagogue. But what I have been able to do is to ban torture. I have been able to make sure that our intelligence agencies and our military operate under a core set of principles and rules that are true to our traditions of due process. People will say, “I don’t know — you’ve got your Justice Department out there that’s still using the state secrets doctrine to defend against some of these previous actions.” Well, I gave very specific instructions to the Department of Justice. What I’ve said is that we are not going to use a shroud of secrecy to excuse illegal behavior on our part. On the other hand, there are occasions where I’ve got to protect operatives in the field, their sources and their methods, because if those were revealed in open court, they could be subject to very great danger. There are going to be circumstances in which, yes, I can’t have every operation that we’re engaged in to deal with a very real terrorist threat. [my emphasis]

But I wanted to add one thing.

Obama suggests his Administration has only invoked state secrets to protect “operatives in the field.”

That’s the case only in one of the most notable state secrets invocations the Administration has made or sustained. Consider:

  • Jeppesen Dataplan
  • Al-Haramain
  • Al-Awlaki

I’ll grant that one of the things the Administration refuses to publicize about the al-Awlaki case is how they know what they know. And we know there are covert teams operating in Yemen, so it is probable that one of the things–though certainly not the only thing–they are protecting are those operatives in the field.

But in Jeppesen Dataplan, the government is protecting a publicly traded company from the backlash it would experience if its role in torture were confirmed. And it is protecting the governments that tortured on our behalf: Egypt and Morocco.

The government’s invocation of state secrets in al-Haramain has even less to do with protecting operatives in the field. In that case, the government is (again) protecting publicly traded companies from even more certain backlash from consumers. And it is protecting the details about how and the extent to which the government conducts domestic surveillance and data mining. The government is not protecting operatives in the field at all. On the contrary, the government is protecting itself from the wrath of its citizens. (He’s also protecting the prior Administration, including his current top terrorism advisor, John Brennan.)

And to hide that fact–to try to legitimize his government’s secrecy–Obama invents a largely bogus concern about men and women risking their lives overseas.

Though I guess I shouldn’t be surprised about that fact. After all, Obama’s flip-flop on FISA was the first big disappointment, the first promise he broke. From that point, it was clear Obama would place political considerations ahead of his stated commitment to civil liberties.

Which is, I guess, what his lame defense is all about.

  1. jaango says:

    Here is a ‘statement’ that will be up, sometime tomorrow, on the web site for the Chicano Veterans Organization. Enjoy.

    The Technical Fix Being Asked of Congress

    The Obama administration is asking Congress for a “technical fix” in which giving the federal law enforcement authorities the additional “authority” to “investigate” your use of the Internet and all because, “terrorists” in America are providing “material support for terrorism” to those engaged in the War on Terrorism, strikes me as a behavior for being downright obnoxious, when measured against our Human Rights and our Civil Liberties.

    In addition to exercising his Congressional-approval for “assassinating” American citizens, either here in the USA or overseas, the Obama Administration’s Department of Justice, filed a court brief in which anyone arguing in contra to this behavior, is required to overcome the hurdle or barrier and which is designated as “state’s secrets”.

    Consequently, what we are now having to address is this damned notional that the federal government can ‘hoover’ all that data that enters and exits the Internet. Thus, your financial transactions accomplished and completed via the Internet, will become public knowledge and available due to the “intelligence construct” that we will have to contend with in the future. Or not!

    However, “probable cause” still pertains, and if Congress is willing to relinquish this Constitutional “right”, we, as a nation, need to replace all of our members in Congress and even possible if necessary, consideration be given for replacing our Appointed Officials, as well, and regardless of political affiliation and political belief. Such behavior, for ‘surrendering” ourselves to the federal government’s “wants” and “desires” starts with the acquiescence of the members of Congress. And if so, these Elected and Appointed Officials are not “fit to serve” or so I believe.

    Moreover, being an “anti-war” activist is a behavior than is both appropriate and critical in American politics. So, when the FBI delivers search warrants at the home of these activists, it’s presumed that “probable cause” is in play, and yet, when the FBI announces that none of these activists are “under investigation” this statement of fact for “under investigation” is being called into question, since there is no need for a search warrant. However, to have a ‘search warrant’ issued requires the signature of a judge, and yet, the FBI won’t release the search warrant to further public scrutiny, and which comes from the notional that the judge needs be challenged for whatever presupposed “evidence” was submitted to the judge for being considered in support and as the underlying premise for the “probable cause”.

    Otherwise, a “fishing expedition” is being conducted and under the color and the rubric for the Rule of Law. And this is not acceptable.

    And under no circumstances, should any governmental entity, national, state, or municipal, be given this “authority” to downgrade the Rule of Law and especially, as it pertains to “probable cause.”


  2. JasonLeopold says:

    The fact that he uses the word torture is an admission that torture took place and should be prosecuted. What a strange thing to say: “I have been able to ban torture…” That is not something he should be lauded for when he has also thwarted every (albeit lame) effort to hold individuals accountable for the crime of torture.

      • MadDog says:

        And another good point is that Obama didn’t ban torture. That’s already outlawed by both US and International law.

        No, Obama ordered the rest of the US government to stop using torture, or at the most, stop using some torture techniques (others seem to be still allowed from the Army Field Manual).

          • MadDog says:

            And on a related torture note, via The Guardian:

            Torture warnings pushed aside for Britain to join US in ‘war on terror’

            The “war on terror” had barely begun when senior ministers in the Labour government became aware that it was to be a harsh and brutal affair, involving fundamental breaches of international human rights law, it was revealed today.

            Previously classified documents, disclosed in the high court, show that the government was warned repeatedly in January 2002 that British citizens were possibly being tortured after capture by US forces in Afghanistan, that the US was planning to hold some indefinitely without trial, and that British military lawyers were complaining about breaches of the Geneva conventions.

            While the heavily redacted documents – released in civil proceedings brought by six former Guantánamo inmates – betray British concern about American conduct, they also appear to show that diplomats, civil servants and government lawyers were anxious to find ways to remain, in the words of Tony Blair, “standing shoulder to shoulder” with the US…

        • DWBartoo says:

          You and Jason have nailed the main points, MadDog, regarding torture.

          Obama has NOTHING whatever to be proud of or to “sell”.

          However, that is rather in keeping with the current political class, and those whom they would please.


  3. MadDog says:

    I hope no one minds if I reprise my comment from the previous post since it’s also a factor in this one.

    I would like to focus on the following bit from page 8 of Clapper’s public declaration (and EW, you’ve got the wrong link in your post. Yours goes to Clapper’s secret declaration) and ask that our fine resident attorneys chime in with their thoughts:

    …In November 2009, while in Yemen, Abdulmutallab swore allegiance to the emir of AQAP and shortly thereafter received instructions from al-Aulaqi to detonate an explosive device aboard a U.S airplane over U.S. airspace

    (My Bold)

    My questions for the resident lawyers are as follows:

    Assuming for argument’s sake that Clapper was not exaggerating or embellishing when he declared that al-Aulaqi instructed Abdulmutallab to detonate an explosive device aboard a U.S airplane, would you as either a prosecutor or defense attorney be convinced that this “evidence” was easily sufficient to convict the defendant al-Aulaqi?

    By that I mean would you “need” anything more to convict? Yes, I understand that having more would be “nice”, but the question is whether more would be “necessary”.

    And let’s further assume that the “evidence” was wiretap audio evidence and that the prosecution could empirically prove that it was defendant al-Aulaqi’s voice. Sufficient to convict the defendant al-Aulaqi or not?

    Now let’s assume that the “evidence” was instead an intercepted email between what the prosecution believes was Abdulmutallab and al-Aulaqi. Sufficient to convict the defendant al-Aulaqi or not?

    • MadDog says:

      And a couple of additional scenarios come to mind:

      1. Abdulmutallab may have confessed that al-Aulaqi instructed him to detonate an explosive device aboard a U.S airplane. If so, one wonders if this was before or after a Miranda warning, and if this was before or after a lawyer was requested.

      2. The US government may have “induced” Abdulmutallab into a claim that al-Aulaqi instructed him to detonate an explosive device aboard a U.S airplane.

      3. The US government may simply “believe” that Abdulmutallab claimed that al-Aulaqi instructed him to detonate an explosive device aboard a U.S airplane.

      IANAL, but each one of these scenarios seems more problematic in trying to convict al-Aulaqi, but I’ll leave the courtroom judgment to my legal bretheren betters. *g*

      • bmaz says:

        That is the point I tried to make yesterday (here I think, but not sure). There was a healthy period when Abdulmutallab was in hospital and immediately after where the govt was leveraging the hell out of him and his family. There are also a shitload of forces that may have been, may still be, applied back in the home country. There is no reason whatsoever to give automatic credence, or any credence, to supposed claims Abdulmutallab has implicated Awlaki.

        • MadDog says:

          And I can understand that outside of the legal arena (i.e. the military arena), proof is not mandatory. Suspicion is sufficient enough.

  4. jerryy says:

    In a related OT, it seems that not all of the judiciary is in the bag about the State being able to (ab)use wiretap laws and invoke Secrets privileges to hide the wrongdoings of its agents:

    The judge wrote: “Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in a public forum, we should not expect our activity to be shielded from public scrutiny.”


  5. donbacon says:

    “they could be subject to very great danger”

    That’s true.

    An Italian court sentenced 23 former CIA agents to up to eight years in prison yesterday for their role in the abduction of an Egyptian terror suspect in the first trial relating to “extraordinary renditions”.

    Poland’s chief prosecutor, in early August, opened an investigation into the existence of secret CIA “black sites” in Poland and the possible complicity of Polish agents in torture and other abuses.

    The European Center for Constitutional and Human Rights, the American Civil Liberties Union, and the Justice Initiative met in Berlin in June with lawyers from Germany, Macedonia, and the United Kingdom to discuss the latest developments in the CIA rendition case of German citizen Khaled El Masri.

    The state-secrets doctrine does nothing more than protect government officials from having their wrongdoing disclosed to other people who might want to do something about it. That’s its purpose. That’s its effect.

  6. JasonLeopold says:

    Assuming Yoo means “EITs” here when he’s referring to “interrogation”?

    Yoo: The Geneva Conventions issue comes up around December of 2001 and gets settled January of 2002 — that’s just the question of whether the Geneva Conventions apply — this questions of cells versus open camps and do you provide them with all the same rights under the Geneva convention. That comes up before there is any issue of interrogation.


  7. JasonLeopold says:

    and then a week after that memo to Blair Gonzales told Bush in a Jan. 25 memo, based on advice from Addington, that denying GC protections to AQ/Taliban “substantially reduces the threat of domestic criminal prosecution under the War Crimes Act” and “provide a solid defense to any future prosecution.”

    On that note, the Texas Monthly ran a lengthy story (registration required) by Mimi Swartz on Gonzales over the summer. Not a very good story. But Gonzales, who drafted these memos, publicly admitted:

    “I had little experience with the Geneva Conventions…”


    Within weeks of the attacks, Gonzales was asking Yoo for memos outlining the limits of the Geneva Conventions. Yoo was generous: Since Al Qaeda and the Taliban militia did not constitute a nation or a state, he concluded, they had no protections.


    Subsequently, Gonzales drafted a memo to Bush dated January 25, 2002. (Gonzales now says that Addington was a contributor, and many believe he was the primary author.)

  8. pdaly says:

    People will say, “I don’t know — you’ve got your Justice Department out there that’s still using the state secrets doctrine to defend against some of these previous actions.”


    What I’ve said is that we are not going to use a shroud of secrecy to excuse illegal behavior on our part. On the other hand,

    Obama is playing, here, the old ‘if you knew what I know’ card, reflecting the predicted stance Daniel Ellsberg warned Harry Kissinger about when relying too much on people versed in “top secret” information, ignoring views of people without that top secret clearance.

    I quoted more of this Ellsberg passage in bmaz’ post from 2009 On the Rule of Law and Crimes of Torture

    In the meantime it will have become very hard for you to learn from anybody who doesn’t have these clearances. Because you’ll be thinking as you listen to them: ‘What would this man be telling me if he knew what I know? Would he be giving me the same advice, or would it totally change his predictions and recommendations?’ And that mental exercise is so torturous that after a while you give it up and just stop listening. I’ve seen this with my superiors, my colleagues… and with myself.

    You will deal with a person who doesn’t have those clearances only from the point of view of what you want him to believe and what impression you want him to go away with, since you”ll have to lie carefully to him about what you know. In effect, you will have to manipulate him. You’ll give up trying to assess what he has to say. The danger is, you’ll become something like a moron. You’ll become incapable of learning from most people in the world, no matter how much experience they may have in their particular areas that may be much greater than yours.”

    from Daniel Ellsberg’s book Secrets: A Memoir of Vietnam and the Pentagon Papers, p 238.

    Obama is worried about protecting state secrets. When will he start worrying about his presidential oath to preserve, protect and defend the Constitution of the United States? When will he emerge from the Ellsberg predicted states of moronhood and begin to listen to those non-cleared people eager for him to do just that?

  9. gundersonrogers says:

    Hardly a news-worthy statement, but it is important to remember that our govt benefits from its secrets are not for protection from enemies abroad, but citizens at home.