10 Years of emptywheel: Key Non-Surveillance Posts 2013-2015

Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.

To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing 4 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.

Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

2013

What a Targeted Killing in the US Would Look Like

Amid now-abandoned discussions about using the FISA court to review targeted killing, I pointed out that a targeted killing in the US would look just like the October 28, 2009 killing of Imam Luqman Abdullah.

Article II or AUMF? “A High Level Official” (AKA John Brennan) Says CIA Can Murder You

When the second memo (as opposed to the first 7-page version) used to authorize the killing of Anwar al-Awlaki, it became clear that OLC never really decided whether the killing was done under Article II or the AUMF. That’s important because if it’s the latter, it suggests the President can order anyone killed.

John Brennan Sworn in as CIA Director Using Constitution Lacking Bill of Rights

I know in the Trump era we’re supposed to forget that John Brennan sponsored a whole lot of drone killing and surveillance. But I spent a good deal of the Obama Administration pointing that out. Including by pointing out that the Constitution he swore to protect and defend didn’t have the First, Fourth, Fifth, and Sixth amendment in it.

2014

The Day After Government Catalogs Data NSA Collected on Tsarnaevs, DOJ Refuses to Give Dzhokhar Notice

I actually think it’s unreasonable to expect the government’s dragnets to prevent all attacks. But over and over (including with 9/11), NSA gets a pass when we do reviews of why an attack was missed. This post lays out how that happened in the Boston Marathon case. A follow-up continued that analysis.

A Guide to John Rizzo’s Lies, For Lazy Journalists

Former CIA General Counsel John Rizzo lies, a lot. But that doesn’t seem to lead journalists to treat his claims skeptically, nor did it prevent them from taking his memoir as a statement of fact. In this post I summarized all the lies he told in the first 10 pages of it.

Obama to Release OLC Memo after Only 24 Congressional Requests from 31 Members of Congress

Over the year and a half when one after another member of Congress asked for the OLC memos that authorized the drone execution of Anwar al-Awlaki, I tracked all those requests. This was the last post, summarizing all of them.

The West’s Ideological Vacuum

With the rise of Trump and the success of Russia intervening in US and European politics, I’ve been talking about how the failures of US neoliberal ideology created a vacuum to allow those things to happen. But I’ve been talking about the failures of our ideology for longer than that, here in a post on ISIS.

KSM Had the CIA Believing in Black Muslim Convert Jihadist Arsonists in Montana for 3 Months

There weren’t a huge number of huge surprises in the SSCI Torture Report for me (indeed, its scope left out some details about the involvement of the White House I had previously covered). But it did include a lot of details that really illustrate the stupidity of the torture program. None was more pathetic than the revelation that KSM had the CIA convinced that he was recruiting black Muslim converts to use arson in Montana.

2015

The Jeffrey Sterling Trial: Merlin Meets Curveball

A big part of the Jeffrey Sterling trial was CIA theater, with far more rigorous protection for 10 year old sources and methods than given to 4 year old Presidential Daily Briefs in the Scooter Libby trial. Both sides seemed aware that the theater was part of an attempt, in part, to help the CIA gets its reputation back after the Iraq War debacle. Except that the actual evidence presented at trial showed CIA was up to the same old tricks. That didn’t help Sterling at all. But neither did it help CIA as much as government prosecutors claimed.

The Real Story Behind 2014 Indictment of Chinese Hackers: Ben Rhodes Moves the IP Theft Goal Posts

I’ve written a lot about the first indictment of nation-state hackers — People’s Liberation Army hackers who compromised some mostly Pittsburgh located entities, including the US Steel Workers. Contrary to virtually all the reporting on the indictment, the indictment pertained to things we nation-state hack for too: predominantly, spying on negotiations. The sole exception involves the theft of some nuclear technology from Westinghouse that might have otherwise been dealt to China as part of a technology transfer arrangement.

Obama’s Terrorism Cancer Speech, Carter’s Malaise Speech

In response to a horrible Obama speech capitulating to Republican demands he treat the San Bernardino attack specially, as Islamic terrorism, I compared the speech to Jimmy Carter’s malaise speech. Along the way, I noted that Carter signed the finding to train the mujahadeen at almost the exactly moment he gave the malaise speech. The trajectory of America has never been the same since.

Other Key Posts Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.

To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing probably 3 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.

Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

 

2011

DOJ Points to David Passaro’s Trial as Proof We Investigate Torture, But It Actually Proves John Yoo Should Be Tried

I’v written a lot about the David Passaro case — the only one associated with the CIA (he was a contractor training Afghans) to be prosecuted for abuse. This post summarizes a lot of the problems with his case and its use to claim that the US ever held itself responsible for torture.

One Year After Collateral Murder Release, DOD’s Networks Are Still Glaring Security Problem

I’ve done a ton of posts on how the government complains about leaks even while it fails to close gaping security holes in its networks. This was one of the first. A day later I noted that DOD wasn’t aspiring to fix these problems until 2013; as it would turn out, Edward Snowden managed to download NSA’s crown jewels before they would fix them.

The Drone War on Westphalia

For Independence Day in 2011, I wrote a post arguing that the damage the use of drones will do to sovereignty will pose a real problem, particularly with regard to the consent of the governed. In a follow-up I argued against invoking “national security” to defend policies that weaken the nation.

Pakistani Bounty Claims: Adnan Farhan Abd Al Latif and TD-314/00684-02

In the first of a bunch of posts on Adnan Farhan abd al Latif, I showed that the intelligence report on which his detention relied — which Judge Henry Kennedy had originally deemed unreliable — probably was used to detain a bunch of people turned over with bounties.

49% of Michigan’s African Americans to Lose Their Right to Self-Governance

As the country started focusing on MI’s disastrous policy of  emergency managers, I was the first to note the moment when half of Michigan’s African Americans lost their right to local self-governance.

2012

Why Has the Government Story about Who Ordered the UndieBomber to Attack the US Changed?

As part of an effort to justify drone-killing Anwar al-Awlaki, the government publicly blamed him for all of Umar Farouk Abdulmutallab’s attack on the US, blame which should have been shared with others in AQAP. This was the first post where I made that clear.

“The Gloves Come Off” Memorandum of Notification

I discovered that language the government was trying to keep classified in the ACLU torture FOIA was not (as ACLU mistakenly believed) a description about waterboarding, but instead an admission that torture was authorized by the September 17, 2001 Memorandum of Notification that authorized a bunch of other programs. This was a key post in a series of posts on the MON.

US Climate Inaction: Blame Dick Cheney

I believe the US invaded Iraq as part of a Cheney-backed decision to double down on our petroleum-based hegemonic position in the world, in the apparent belief that we can clean up the damage from climate change at some later time. Even our shift to fracking is more about power than the environment. Given how catastrophic the Iraq war was, and given everything that has occurred since — not least our singular abstention from the Paris Accord — I think it a particularly ironic choice.

Lanny Breuer Covers Up Material Support for Terrorism

I wrote a ton about Obama’s failure to prosecute the banks that blew up the world’s economy. One of the most important ones was the post where I laid out Lanny Breuer’s efforts to hide the fact that HSBC had materially supported al Qaeda. Of course, it got no more than a hand slap even as Pete Seda was in prison for closely related actions (Seda’s case ultimately blew up).

Other Key Post Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.

To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing probably 3 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.

Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

2008

We Are All Flint, MI Now

During the bailout, I did a post trying to imagine the worst that could happen if GM went bankrupt. One of my biggest worries — that China would start importing Buicks, making it far harder for US manufacturers to compete, has already happened.

This was, of course, before Republican mismanagement poisoned the entire city of Flint, MI. Perhaps the post is even more true now.

2009

Khalid Sheikh Mohammed Was Waterboarded 183 Times in One Month

While most of DC was busily engaged in both sides journalism on the impact of Obama’s decision to release the torture memos in 2009, I (and readers here!) was reading closely. Which is how I noted the reference to the 183 waterboards CIA administered to KSM in one month.

“Affordable” Health Care

Bill Supporters Still Can’t Say “Affordable”

In a series of posts at the end of 2009, I laid out how ObamaCare still required participants to spend too much of their income on health insurance and care, which would lead to lots of people to not use it. That has turned out to be one of the biggest problems with ObamaCare (and one of the reason it wasn’t all that popular until Trump tried to take it away). If Democrats ever wrest control from the Republicans again, this is a problem that still needs to be fixed.

2010

Abu Zubaydah’s Torturers Relied on July 13 Yoo Fax, not Bybee Memo

I found a lot of things (including Gul Rahman’s ID, but I waited on that to protect the identity of the CIA officer who oversaw his killing) in the Office of Professional Management report on John Yoo’s torture memos released in 201. One that remains important — and poorly understood — is that the first torture actually operated under authorization from a freelance fax from Yoo issued weeks before the famous August 1 Bybee memo, rather than the full OLC memo itself.

FDL Book Salon Welcomes Steven Rattner, Author of Overhaul

There were two or three of Bev’s badly missed book salons I hosted that I particularly enjoyed (Bob Woodward is another). But none was better than hosting Steven Rattner, for his very blinkered view of his own role in the auto bailout. The comment thread in it was epic, too, but sadly gone.

Hatfill and Wen Ho Lee and Plame and al-Awlaki and Assange

After a panel on the Scooter Libby case, I meditated on how those with the secrets increasingly use journalists as a stand in for due process. This is not a post I’ve returned to a lot, but particularly given everything that has transpired since, particularly given where Assange has gone since, it strikes a nerve.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Fifteen Years Fighting the War on Terror Would Have Inured Mike Flynn to Kidnapping

As the Wall Street Journal reported this morning, in December 2016, Mike Flynn had a second meeting with representatives of Turkey to discuss a plan to help them kidnap Fethullah Gulen.

Federal Bureau of Investigation agents have asked at least four individuals about a meeting in mid-December at the ‘21’ Club in New York City, where Mr. Flynn and representatives of the Turkish government discussed removing Mr. Gulen, according to people with knowledge of the FBI’s inquiries. The discussions allegedly involved the possibility of transporting Mr. Gulen on a private jet to the Turkish prison island of Imrali, according to one of the people who has spoken to the FBI.

The report has led to some gleeful hand-wringing (and, as always, baby cannon eruptions) from interesting quarters.

For those of us who have opposed the US practice of extraordinary rendition, sure, the notion that Flynn would work with a foreign country to assist in the illegal kidnapping of someone that country considered a terrorist does seem outrageous. But for those who, not so long ago, worried that counterterrorism success might lead us to eschew things like extraordinary rendition, I’m not sure I understand the hand-wringing.

Yet the more effectively we conduct counterterrorism, the more plausible disbelief becomes and the more uncomfortable we grow with policies like noncriminal detention, aggressive interrogation, and extraordinary rendition. The more we convince ourselves that the Devil doesn’t really exist, the less willing we are to use those tools, and we begin reining them in or eschewing them entirely. And we let the Devil walk out of the room.

Especially not when you consider Mike Flynn’s service to the country. For fourteen years, Flynn played a key role in counterterrorism policy, serving in an intelligence role in Afghanistan when we were paying Pakistan bounties just to have enough Arabs to fill Gitmo, serving as Director of Intelligence for JSOC for some of the bloodiest years of the Iraq War, then serving in another intelligence role in Afghanistan during a period when the US was handing prisoners off to Afghanistan to be tortured.

That’s what two presidents, one a Nobel Prize winner, and another increasingly rehabilitated, asked Mike Flynn to do. And in that role, I have no doubt, he was privy to — if not directly in the chain of command — a whole lot of legally dubious kidnapping, including from countries with respectable institutions of law. (In related news, see this report on MI6 and CIA cooperation with Gaddafi, including kidnapping, after 9/11.)

So having spent 14 years kidnapping for the United States, why is it so odd that Flynn would consider it acceptable to help one of our allies in turn, to help them kidnap the kinds of clerics we ourselves have targeted as terrorists.

There is, of course, something different here: the suggestion that Flynn and his son might profit mightily off the arrangement, to the tune of $15 million.

Under the alleged proposal, Mr. Flynn and his son, Michael Flynn Jr., were to be paid as much as $15 million for delivering Fethullah Gulen to the Turkish government, according to people with knowledge of discussions Mr. Flynn had with Turkish representatives. President Recep Tayyip Erdogan, who has pressed the U.S. to extradite him, views the cleric as a political enemy.

But even the notion of bribery to facilitate human rights abuses is not something the US forgoes. One of the biggest disclosures from the SSCI Torture Report, for example, is how the Bush Administration worked to bribe other countries to let us build torture facilities in their countries.

The buddies of those now scolding such arrangements were part of that bribery operation.

The big question with Flynn is whether the similar bribe for this kidnapping operation would have been different from those under the table bribes we paid for our torture facilities. Did they go into the countries’ populace, or did they get pocketed by the national security officials doing the dirty deeds?

I actually don’t mean it to be a gotcha — though I would sure appreciate a little less hypocritical squeamishness from those who elsewhere view such irregular operations as the cost of keeping the country safe (as Erdogan claims to believe to be the case here).

Rather, I raise it to suggest that Mike Flynn knows where the bodies are buried every bit as much as David Petraeus did, when he was facing a criminal prosecution to which the best response was graymail. Flynn surely could demand records of any number of kidnapping operations the United States carried out, and he might well be able to point to bribes paid to make them happen, if Robert Mueller were to charge him for this stuff. It’s different, absolutely, that it happened on US soil. It may (or may not be) different that an individual decided to enrich himself for this stuff.

But this is the kind of thing — Mike Flynn knows well — that the US does do, and that certain hawks have in the past believed to be acceptable.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Mike Morell Resigns Out of Conscience because of [Leaks about] Torture

Former Deputy Director of CIA Mike Morell is resigning from Harvard’s Belfer Center because Harvard’s Institute of Politics has hired Chelsea Manning.

I am writing to inform you that I am resigning, effective immediately, as a non-resident Senior Fellow at the Belfer Center.

[snip]

I cannot be part of an organization — The Kennedy School — that honors a convicted felon and leaker of classified information, Ms. Chelsea Manning, by inviting her to be a Visiting Fellow at the Kennedy School’s Institute of Politics. Ms. Manning was found guilty of 17 serious crimes, including six counts of espionage, for leaking hundreds of thousands of classified documents to Wikileaks, an entity that CIA Director Mike Pompeo says operates like an adversarial foreign intelligence service.

Morell goes on to talk about his great stand of conscience.

[T]he Kennedy School’s decision will assist Ms. Manning in her long-standing effort to legitimize the criminal path that she took to prominence, an attempt that may encourage others to leak classified information as well. I have an obligation to my conscience — and I believe to the country — to stand up against any efforts to justify leaks of sensitive national security information.

[snip]

[I]t is my right, indeed my duty, to argue that the School’s decision is wholly inappropriate and to protest it by resigning from the Kennedy School — in order to make the fundamental point that leaking classified information is disgraceful and damaging to our nation.

Of course, you could replace every instance where Morell invokes leaks with torture. You could replace every instance where Morell mentions Kennedy School’s (allegedly) poor decision and replace it with CIA’s.

And then it would become clear where Morell’s values lie.

Chelsea Manning started leaking because she was asked to support the repression of Iraqis engaged in peaceful opposition to Nuri al-Maliki — a view that came to be conventional wisdom long after Manning was in prison for her actions. Manning also exposed US complicity in torture in Iraq and Condi’s efforts to cover up the CIA’s torture. Manning also served seven years for her crimes, including a period where the US government subjected her to treatment most countries consider torture.

Chelsea Manning, too, took a stand of conscience. She stood against torture, which was disgraceful and damaging to our nation. Morell? He took no stand of conscience against torture. Instead, he stands against leaks about torture with which he was complicit.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Arpaio Pardon — Don’t Obsess about the Russian Investigation

It seems there are two likely responses to the Arpaio pardon: to use it as a teaching opportunity about race, or to use it to panic about the Russian investigation.

I’m seeing far too many people choosing the latter option, focusing on what Trump’s pardon of Joe Arpaio might do for the Russian investigation. That, in spite of the fact that Trump has already spoken openly of pardoning Mike Flynn, just like he did of Arpaio, to say nothing of his spawn or the father of his grandchildren.

The targets of the Russian investigation already know Trump can and is considering pardoning them.

But a pardon of them — at least some of them — is a very different thing than an Arpaio pardon. That’s because, for some of the crimes in question, in case of a pardon, Robert Mueller could just share the evidence with a state (usually NY) or NYC prosecutor for prosecution. It’s possible that accepting a pardon for Trump or Kushner business related crimes could expose those businesses to lawsuit, and both family’s businesses are pretty heavily in debt now.

Most importantly, a Paul Manafort or Mike Flynn pardon would deprive them of their ability to invoke the Fifth Amendment, meaning they could more easily be forced to testify against Trump, including to Congress.

Presidents implicated in crimes have used a variety of means to silence witnesses who could implicate them, but Poppy Bush’s Cap Weinberger pardon — the most recent example of a President pardoning a witness who could incriminate him — was not the primary thing that protected Poppy and Reagan, Congress’ immunization of witnesses was. Thus far, most Republicans in Congress seem determined to avoid such assistance, and Trump’s attacks on Mitch McConnell and Thom Tillis for not sufficiently protecting him probably have only exacerbated the problem.

I wrote a piece explaining why (in my opinion) George W Bush commuted Scooter Libby’s sentence, but never pardoned him: it kept Libby silent without adding any personal risk. If Trump were competent, he’d be making similar calculations about how to keep witnesses out of prison without making it easier to incriminate him. But he’s usually not competent, and so may fuck this up royally.

In any case, given that some Republicans (including both Arizona’s Senators) have made lukewarm objections to the Arpaio pardon, I’d imagine any pardons of Russian witnesses would meet more opposition, particularly if those pardons came before the 2018 elections. Add in the fact that sleazeball Manafort has no purported service to point to to justify a pardon, as Trump cited with Arpaio (and would to justify a Flynn pardon). The backlash against Trump pardoning witnesses against him will likely be far worse than the already existing backlash here.

Pardoning Arpaio was easy. Pardoning Manafort and Flynn and Don Jr and Kushner and everyone else who can implicate the President will not be easy, neither legally nor politically. So don’t confuse the two.

Meanwhile, Trump has just pardoned a man whose quarter century of abuse targeting people of color has made him the poster child of abuse, not just from a moral perspective, but (given the huge fines Maricopa has had to pay) from a governance perspective.

Like it or not, a lot of white people have a hard time seeing unjustified killings of people of color as the gross civil rights abuse it is, because when cops cite fear or danger in individual cases, fearful white people — who themselves might shoot a black kid in haste in the name of self-defense — side when them. Those white people might easily treat Black Lives Matter as an annoyance blocking their commute on the freeway.

The same white people might find Joe Arpaio’s tortuous camps for people of color objectionable, because those camps make the systemic aspect far more apparent. They’re far more likely to do so, though, if this pardon is primarily seen as Trump’s endorsement of systematic white supremacy rather than a test run to protect himself.

Moreover, white supremacy is something that will remain and must be fought even if Robert Mueller indicts Trump tomorrow. It was a key, if not the key, factor in Trump’s win. We won’t beat the next demagogue following in Trump’s model if we don’t make progress against white supremacy.

You can’t do anything, personally, to help the Robert Mueller investigation. You can do something to fight white supremacy. And if that doesn’t happen, then we’ll face another Trump down the road, just as surely as Sarah Palin paved the way for Trump.

The Arpaio pardon is an abuse, horrifying, yet more evidence of how outrageous Trump is.

But it’s also a teaching opportunity about white supremacy. Better to use it as such rather than cause for panic about the Russia investigation.

Related posts

emptywheel, You’re not the audience for the Arpaio pardon, cops are

bmaz, Some thoughts on the Arpaio pardon

 

 

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Lawfare Disappears Democratic Support for Centrist Failures to Claim a “Sea-Change” because of Russia

In a piece that calls Max Blumenthal — author of three books of original journalism — an “activist,” Lawfare’s Quinta Jurecic attempts to lay out how the left has split on its response to Russia’s interference in last year’s election. She does a fine job avoiding generalizations about the current stance of the various parts of the left she portrays. But she creates a fantasy past, in which even the center-left has been distrustful of the intelligence community, to suggest the center-left’s embrace of the Russia investigation represents a “sea-change” in its comfort with the spooks.

The story of the American left under Trump, as in the larger story, is one of bifurcation and polarization. It’s a story of a profound emerging divide over the role of patriotism and the intelligence community in the left’s political life. To put the matter simply, some on the left are actively revisiting their long-held distrust of the security organs of the American state; and some are rebelling against that rapprochement.

[snip]

But these arguments have taken place against the backdrop of a much greater and more visible embrace of the investigation on the part of the center-left—and a concurrent embrace by many center-left commentators of actively patriotic vocabulary that is traditionally the province of the right, along with a skepticism about Russia that has not been in fashion in Democratic circles since the Scoop Jackson wing of the party bolted. As Trump has attacked and belittled the intelligence community’s assessment of Russian election interference, the center-left has embraced not only the report but also the intelligence community itself.

[snip]

Political leaders of the center-left always had a quiet peace with the national security apparatus. But the peace was a quiet one, generally speaking, one without overly demonstrative displays of affection or support.

[snip]

[B]roadly speaking, the center-left these days sounds a lot like the mainstream right of the last few decades before Trump came along: hawkish towards Russia and enthusiastic about the U.S.  intelligence apparatus as one of the country’s key lines of defense. And the mainstream right sounds a lot like the center-left on the subject—which is to say very quiet.

This new posture for the center-left, to some degree anyway, has politicians speaking the language of the intelligence world: the language of active patriotism.

Perhaps Jurecic has been asleep since 9/11, and has overlooked how aggressively supportive centrist Democrats have been of the National Security establishment? There’s no sea-change on the center left — none. What she actually presents evidence for is a sea-change on the right, with increased skepticism from some of those (like Devin Nunes) who have been the intelligence community’s biggest cheerleaders in the past.

To create this fantasy past, the foreign policy history Jurecic focuses on is that of the Cold War (a history that stops short of NATO expansion), not more recent history in which members of the center-left voted for a disastrous Iraq War (which Russia opposed), misrepresented (to both Russia and the left) the regime change goals of the Libya intervention, and applauded the CIA effort to back (al Qaeda allied) rebels to carry out regime change in Syria. To say nothing of the center-left’s failure to hold banks accountable for crashing the world economy. The only place those policies show up is in Jurecic’s explanation why “younger” people are more isolationist than their elders.

There’s another stream of thought too, from voices who tend to be younger and more focused on left-wing domestic policy, rather than Cold War-inflected foreign policy—people whose formative political experience dates to the Iraq War, rather than anything to do with the Soviet Union. This stream tends toward isolationism.

It’s not just that the Iraq War and the Wall Street crash, not the Cold War, provided the formative moment for these young people (though many of Jurecic’s claims about the young are immediately supported by descriptions of Glenn Greenwald or other old farts). It’s that these were disastrous policies. And through all of them, the center-left that Jurecic portrays as distrusting the IC were instead enabling and often — certainly for the entire Obama Administration — directing them.

Jurecic’s fantasy of past skepticism about the IC relies on the Democrats’ changing views towards Jim Comey, particularly the treatment of him (and to a lesser degree Robert Mueller) as messiahs.

As Americans gathered to watch James Comey testify before the Senate Intelligence Committee, a meme emerged on certain corners of the left-leaning internet: people had a crush on the former FBI director. It was his patriotism, his scrupulousness, his integrity that did it. “Get you a man who loves you like [C]omey loves the FBI,” wrote one commenter. “Is COMEY … attractive?” asked another. Declared one: “Comey should be the next Bachelor.”

The trend may have started with Comey, but it hasn’t ended with him. Earlier this month, Vogue reported that special counsel Robert Mueller, too, has been transformed into an unlikely object of adoration.

The point of these outbursts of affection—whatever level of queasiness or amusement they might inspire—is not actually that anyone finds the former FBI director or the special counsel attractive. In the odd parlance of the internet, this kind of language is a way to express intense emotional involvement with an issue. Half-jokingly and with some degree of self-awareness, the many people who profess their admiration are projecting their swirling anxiety and anticipation over the Russia investigation and the fate of the Trump presidency onto Mueller and Comey.

Not only does Jurecic ignore the wild swing Democrats exhibited about Comey, whom many blamed for Hillary’s loss (something both I and, later, Lawfare predicted). But she makes no mention of what happened in 2013 with Jim Comey’s confirmation process, in which a man who signed off on torture and legitimized an illegal dragnet by strong-arming the FISA Court was pushed through by Democrats with one after another fawning statement of admiration, where the only procedural or voting opposition came from Republicans.

You don’t approve Comey with no probing questions about his hawkish past if you’re at all embarrassed about your support for the IC. Yet that’s what the allegedly skeptical Democratic party did.

There’s a reason all this matters, especially given the way Jurecic wields the concept of patriotism in her invention of a sea-change in center-left support for spooks.

I’m on the more progressive (“hard”) left that Jurecic generally portrays as opposing the Russia investigation. Yet I may have written more, myself, than all of Lawfare about it. I think it is real and important. I support the investigations into Russian interference and Trump’s tolerance for it.

But I also think that as part of that review, the center-left — and institutions of centrist policy, starting with Brookings — need to reflect on how their own epic policy failures have discredited centrist ideology and created an opportunity that both Donald Trump and Vladimir Putin found all too easy to exploit.

Trump succeeded, in part, because he deceitfully promised to reinvest in the crumbling US interior, rather than overseas. Putin has attracted support in a Europe still paying for the German banks’ follies, a Europe struggling to accommodate refugees escaping a destabilized Middle East. That doesn’t make either of them positive forces. Rather, it makes them opportunists capitalizing on the failures of centrist hegemony. But until the center is either replaced or offers policies that haven’t already failed, Trump and Putin will continue to exploit those failures.

I consider myself a patriot. But true patriotism — as opposed to the messianism she celebrates as patriotism on the center-left — requires honest criticism of America’s disastrous economic and foreign policy failures. Messianism, by contrast, is a position of impotence, where necessary work is supplanted by hope that a strong man will rescue us all.

Ben Wittes and Lawfare generally are right that caricatures of them as handmaidens of the Deep State are too simple. But Jurecic’s analysis is associated with a think tank paid for by funders that include entities that have backed disastrous destabilizing policies in the Middle East — like Qatar, UAE, Haim Saban — as well as those who profit from them — like Northrop Grumman  It was paid for by the banks that centrists didn’t hold accountable for the crash, including JP Morgan and Citi. It was paid for by big oil, including Exxon. It was even paid for by Dianne Feinstein, the Democrat who presided over the solicitous Comey confirmation process Jurecic completely disappeared from her narrative of Democrats embracing Comey.

That a Brookings-affiliated analyst has just invented a fantasy past skepticism for spooks on the center-left — the center-left that has championed failed policies — even as she deems the tribalism she portrays as “patriotism” is itself part of the problem. It dodges the work of true patriotism: ensuring America is strong enough to offer the rest of the world something positive to support, rather than something that demagogues like Trump and Putin can effectively consolidate power over.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Does Vice President Pence Believe He Has Declassification Authority?

It is, as I understand it, fairly customary for each new presidential administration to rewrite the Executive Order on classification. George W Bush didn’t do so right away — he finalized his classification EO on March 23, 2003. Obama moved a bit more quickly, superseding the Bush EO with his own classification EO on December 29, 2009.

But even among the flood of Executive Orders that Trump has signed thus far in his term, I don’t believe he has modified the Obama one.

That means a change made in 2003, which was retained in the Obama EO, remains in place: the inclusion of the Vice President among those who is and can name Original Classification Authorities (here’s Bill Clinton’s EO for comparison). Here’s the language that gave Dick Cheney classification authorities:

Classification Authority. (a) The authority to classify information originally may be exercised only by:

    (1) the President and, in the performance of executive duties, the Vice President;

And here’s how Obama slightly tweaked that language to retain that authority for Joe Biden:

a) The authority to classify information originally may be exercised only by:

(1) the President and the Vice President;

Now, Cheney got this authority at an interesting time. That was a key time for Torture cover-up; in fact, sometime in that period, someone in the White House ordered George Tenet to make torture a Special Access Program. He was already pushing back against the CIA whistleblowers who knew the intelligence behind Iraq was crap, an effort that would lead to Scooter Libby sharing Valerie Plame’s identity with Judy Miller on Cheney’s orders (it remains unclear whether Cheney had Bush’s permission to leak this). Yet for some reason, the new classification rules appear most closely connected with Stellar Wind (I believe this had to do with a change in whom Stellar Wind could target).

In any case, from that moment forward, the Vice President has had the authority to classify things. As you can imagine, given Cheney’s role in the Plame outing, there was a heated and still publicly unresolved debate whether the Vice President also got declassification authorities, including of things that the President or Presidential authority had classified.

I raise this issue because more and more people have started raising questions about whether Mike Pence is sabotaging Donald Trump, especially as leaks like this come out of the White House.

President Trump told Russian officials in the Oval Office this month that firing the F.B.I. director, James B. Comey, had relieved “great pressure” on him, according to a document summarizing the meeting.

“I just fired the head of the F.B.I. He was crazy, a real nut job,” Mr. Trump said, according to the document, which was read to The New York Times by an American official. “I faced great pressure because of Russia. That’s taken off.”

Mr. Trump added, “I’m not under investigation.”

The conversation, during a May 10 meeting — the day after he fired Mr. Comey — reinforces the notion that Mr. Trump dismissed him primarily because of the bureau’s investigation into possible collusion between his campaign and Russian operatives. Mr. Trump said as much in one televised interview, but the White House has offered changing justifications for the firing.

The White House document that contained Mr. Trump’s comments was based on notes taken from inside the Oval Office and has been circulated as the official account of the meeting. One official read quotations to The Times, and a second official confirmed the broad outlines of the discussion.

If Pence believes — perhaps based on knowledge personally imparted by Cheney allies — that he has the ability to declassify anything that the President can, then he can leak details of White House events with utter impunity. Having him insta-declassify things would be a fairly safe way to feed the never-ending stream of embarrassing information coming out of the White House.

Oh, sure. He’d have utterly venal motive to do so. By feeding the Trump Russian scandal, Pence would make it increasingly likely he’d become President without having to expose his regressive views to the review of voters. But there’s nothing Trump could do about it so long as an EO granting Pence the same authorities that Cheney abused to great effect remains on the book.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

McCain Has One Way to Prevent Torture under Trump — Oppose Pompeo and Sessions

The Saturday before Thanksgiving, John McCain made some strong statements about whether President Trump will be able to resume torture.

Republican Sen. John McCain issued a fiery warning to President-elect Donald Trump on the subject of torture Saturday.

“I don’t give a damn what the president of the United States wants to do. We will not waterboard,” McCain told an audience at the annual Halifax International Security Forum. “We will not torture people … It doesn’t work.”

McCain’s comments have gotten quite a lot of approving press since.

But that approving press is misplaced.

After all, tough words will not prevent Trump from resuming torture — no matter what NYT’s rather bizarre story claiming there are obstacles to doing so claims. As I laid out weeks ago, the bureaucratic work-arounds are already in place.

No. The single most effective way for Senator McCain to prevent Trump from resuming torture is to ensure the people he appoints are actually opposed to it.

Already, Trump has named two pro-torture Republicans to top positions: Trump’s Attorney General pick, Jeff Sessions, voted against the anti-torture amendment McCain wrote to try to codify the law. In response to the release of the Torture Report, Trump’s CIA Director pick, Mike Pompeo, declared the torturers “are not torturers, they are patriots.”

McCain — whose comment on torture came the day after Trump named these appointees — has not committed to opposing their nomination. Instead, he just wants to make strong statements that will do little to prevent Trump from ordering Pompeo to resuming the torture.

Maybe that’s why McCain is getting so touchy about the President-elect.

Today, he told two different reporters he didn’t want to answer questions about Trump. Here’s what he said to HuffPo’s Laura Barron-Lopez:

I will not discuss President-elect Donald Trump, ok? And that is my right as a Senator. I do not have an obligation ma’am to answer any question I don’t feel like answering. I’m responsible for the people of Arizona and they just [re-elected] me overwhelmingly.

He said something similar to CNN’s Manu Raju.

Cranky-as-fuck John McCain is ratcheting it up!

But he’s going to need to crank it up even more. McCain, with just two of his colleagues, has the power and moral authority to oppose pro-torture appointees. That would require confronting the leader of his party. But it is also one of the only real ways to prevent the US from resuming torture.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

False Reassurances: On Pixie Dusted Executive Orders, Appendix M, and Proxy Detention and Torture

In the wake of Trump’s victory, a number of people have offered some thoughts intended to reassure. In a piece titled, “The United States is not about to spiral into tyranny,” Kevin Drum claimed — among other things — that Trump will have a hard time reversing Obama’s Executive Orders.

Trump will learn that repealing executive orders is harder than he thinks, and it’s unlikely he has the attention span to really keep at it.

And a number of pieces — such as this one from Reuters — point to last year’s language in the NDAA limiting interrogation to techniques that appear in the Army Field Manual.

Trump’s support for water-boarding, an interrogation technique that simulates drowning, also would meet opposition. Congress last year passed legislation barring the use of waterboarding and other “extreme interrogation techniques” widely considered torture. Obama signed the measure into law last November.

Both of those reassurances are overly optimistic.

Pixie Dusting EOs

Even on its face, the idea that Trump can’t reverse Obama’s EOs doesn’t make sense. A president has uncontested authority to pass EOs as he pleases. The only limit on that power is Congress. If sufficient numbers in Congress, backed by sufficiently powerful leaders in Congress, want to contest a president’s public EOs, they can try to legislate or defund an activity.

There is no likelihood of that happening with Trump anytime soon. None. Especially not with the EO that Trump is probably most anxious to reverse, Obama’s order deferring deportation of 5 million people who’ve long been valuable members of American society.

More importantly — and this is something everyone needs to start accounting for — according to two different OLC memos, one used to authorize Iran-Contra, the other used to authorize Stellar Wind, the president doesn’t even have to make the actual implementation of his EOs public.

An executive order is only the expression of the President’s exercise of his inherent constitutional powers. Thus, an executive order cannot limit a President, just as one President cannot legally bind future Presidents in areas of the executive’s Article II authority. Further, there is no constitutional requirement that a President issue a new executive order whenever he wishes to depart from the terms of previous executive order. In exercising his constitutional or delegated statutory powers, the President often must issue instructions to his subordinates in the executive branch, which takes the form of an executive order. An executive order does not commit the President himself to a certain course of action. Rather than “violate” an executive order, the President in authorizing a departure from an executive order has instead modified or waived it. Memorandum for the Attorney General, From: Charles J. Cooper, Assistant Attorney General, Re: Legal Authority for Recent Covert Arms Transfers to Iran (Dec. 17, 1986). In doing so, he need not issue a new executive order, rescind the previous order, or even make his waiver or suspension of the order publicly known. Thus, here, the October 4, 2001 Authorization, even if in tension with Executive Order 12,333, only represents a one-time modification or waiver of the executive order, rather than a “violation” that is in some way illegal.

While Jack Goldsmith’s May 6, 2004 Stellar Wind memo supplanted the Yoo memo in which he made this argument, there has been no public repudiation of this logic or the underlying Iran-Contra memo, not by Constitutional scholar Barack Obama, not by Congress.

In other words, no one has invented any kind of requirement that the president let the public or even Congress know what rules he believes he is bound by.  Indeed, it’s absurd to think Obama would have institutionalized something like that, given that (according to CIA General Counsel Caroline Krass) his administration has started hiding its self-authorizations in places besides OLC so we won’t know where to look for them.

Which means a man who used disinformation to get elected has no obligation to tell us what rules he considers himself bound by.

Three shell games that already exist under which to conduct torture

Similarly, the NDAA prohibition on torture is less ironclad than often claimed. That amendment didn’t prohibit torture. Rather, it restricted national security interrogators to the techniques in the Army Field Manual.

The amendment explicitly excluded law enforcement personnel from this restriction. As John Brennan said when he was asked about this way back in 2013, the FBI has its own processes and procedures, many of which remain obscure, others of which include clear loopholes. Importantly, the FBI increasingly operates — as the DEA has long done — overseas, where any problematic processes and procedures can easily be hidden.

In addition, as Jeff Kaye pointed out at the time, the AFM includes a section called Appendix M, which permits the use of a technique called Separation. The UN Committee Against Torture found Appendix M problematic, because it induced psychosis, during the UN review of US practices back in 2014.

But there’s another problem with the AFM. In 2006, Steven Bradbury wrote an OLC memo that basically authorized Appendix M largely divorced from the actual details of it. As I read it, that memo may be used for authorization of techniques used in Appendix M even if they’re not enumerated in the memo, meaning Trump can put anything in Appendix M and claim to have OLC buy-off. In fact, Bradbury incorporated within that memo yearly updates to the Appendix. It basically created a drawer, which might or might not be classified, into which DOD could throw whatever it wants to do.

When Congress passed the NDAA, they required the Appendix M to be reviewed to make sure it is humane and legal — but not until 2017. So while the intent of this amendment was explicitly to prohibit inhumane treatment, it relies on a structure of interpretations left up to the future President. The future President, as it turns out, got elected insisting that waterboarding is not torture.

Finally, the Drone Rule Book (which Trump can throw out on January 20 in any case) explicitly envisions letting our friends detain people, so long as they give us reassurances the person will be treated humanely. The Bush Administration started waterboarding people by watching while Egyptians did the waterboarding for us. It asked Bashar al-Assad (and a number of other countries we still are friends with) do far worse to people on our behalf. There has never been any appetite to eliminate the shell game of proxy detention. Indeed, Obama has used such shell games in Somalia and Kuwait, with tortured alleged in the latter case.

The CIA has been leaking wildly about its concerns about being asked to torture. But the CIA — and its enablers — didn’t do the things to make it impossible to ask them to torture when we had the chance.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.