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Mick Mulvaney Confesses OMB and DOD Are Withholding Evidence of a Crime from Congress

Amid the tsunami of alarming news Mick Mulvaney made at today’s press conference (Trump is holding the G-7 at Doral next year, he likely will invite Putin, Trump did engage in a quid pro quo with Volodymyr Zelensky on his July 25 call), one of the more important admissions got missed.

Mick Mulvaney admitted that the White House would have been breaking the law by withholding Ukrainian security funds because it did not have a “really really good reason not to do it.”

By the way, there was a report that we were worried that the money, that if we didn’t pay out the money it would be illegal. It would be unlawful. That is one of those things that has a little shred of truth in it, that makes it look a lot worse than it really is. We were concerned about — over at OMB, about an impoundment. And I know I’ve just put half you folks to bed, but there’s a, the Budget Control Act, Impound — the Budget Control Impoundment Act of 1974 says that if Congress appropriates money you have to spend it. At least, that’s how it’s interpreted by some folks. And we knew that that money either had to go out the door by the end of September, or we had to have a really really good reason not to do it. And that was the legality of the issue.

He’s referring, presumably, to a WSJ report that OMB — the agency Mulvaney is still officially in charge of — put a political appointee in charge of withholding duly appropriated security funds for Ukraine so that President Trump could extort concessions from Ukraine.

The White House gave a politically appointed official the authority to keep aid to Ukraine on hold after career budget staff members questioned the legality of delaying the funds, according to people familiar with the matter, a shift that House Democrats are probing in their impeachment inquiry.

President Trump’s order to freeze nearly $400 million in aid to Ukraine in mid-July is at the center of House Democratic efforts to investigate allegations that Mr. Trump used U.S. foreign policy powers to benefit himself politically.

[snip]

The president has the authority to delay the release of money in certain instances, according to the Congressional Research Service, a nonpartisan research agency, including if there has been an unexpected change in circumstances for the program. But without being provided explanation or justification about why the administration was delaying the aid, some career officials at the Office of Management and Budget became worried they didn’t have the legal authority to hold up the funds, according to the people familiar.

While career civil servants put an initial hold on the aid, Michael Duffey, associate director of national security programs in OMB, was given the authority for continuing to keep the aid on hold after the career staff began raising their concerns to political officials at OMB, according to the people familiar with the matter. Mr. Duffey also began overseeing the process for approving and releasing funds, called apportionment, for other foreign aid and defense accounts, according to a public document indicating the change.

As noted by Mulvaney today, a law passed in the wake of Richard Nixon playing games with appropriations requires that if you withhold duly appropriated funds, you explain to Congress why you’re doing so, a decision that Congress then gets to veto simply by refusing to approve of the decision. The law makes it clear that the President can’t simply ignore the will of Congress on appropriations.

And yet, that’s what Trump did for the entirety of the summer.

Worse, in his press conference today, Mulvaney admitted that Trump didn’t have a “really really good reason not to” release the funds. Rather, he had a really bad reason: he was trying to extort a quid pro quo.

And that’s why the decision — reported in ho hum fashion on Tuesday as if it were just another case of the Administration refusing Congressional subpoenas — that OMB and DOD would not respond to subpoenas is actually really important.

The subpoena to those agencies lays out some of the evidence that Trump withheld the funds after DOD cleared them. Then it lays out the evidence that Trump was defying bipartisan Congressional will in doing so.

As you are aware, the Impoundment Control Act of 1974 authorizes the President to withhold the obligation of funds only “(1) to provide for contingencies; (2) to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or (3) as specifically provided by law.” The President is required to submit a special message to Congress with information about the proposed deferral of funds.

On August 30, 2019, Chairman Adam Smith and Ranking Member Mac Thornberry of the House Committee on Armed Services wrote a letter to Mr. Mulvaney requesting information why military assistance to Ukraine was being withheld and when it would be released. They wrote: “This funding is critical to the accomplishment of U.S. national security objectives in Europe.”

On September 3, 2019, a bipartisan group of Senators–including Rob Portman, Jeanne Shaheen, Dick Durbin, Richard Blumenthal, and Ron Johnson–wore a letter requesting that OMB release the military assistance to Ukraine that the Trump Administration was withholding:

The funds designated for the Ukraine Security Assistance Initiative are vital to the viability of the Ukrainian military. It has helped Ukraine develop the independent military capabilities and skills necessary to fend off the Kremlin’s continued onslaughts within its territory. In fact, Ukraine continues to fight daily on its eastern border against Russia-backed separatists in the provinces of Donetsk and Luhansk, and over 10,000 Ukrainian soldiers and civilians have lost their lives in this war. U.S.-funded security assistance has already helped turn the tide in this conflict, and it is necessary to ensure the protection of the sovereign territory of this young country, going forward.

On September 5, 2019, Chairman Eliot L. Engel and Ranking Member Michael McCaul of the House Committee on Foreign Affairs wrote a letter to OMB urging the Trump Administration to lift its hold on security funds to support Ukraine, writing: “These funds, which were appropriated by Congress as Foreign Military Financing and as part of the Ukraine Security Assistance Initiative and signed into law by the President, are essential to advancing U.S. national security interests.”

On September 9, 2019, the Committees on Intelligence, Foreign Affairs, and Oversight wrote to the White House requesting documents related to “the actual or potential suspension of security assistance to Ukraine.” The White House never responded to this request. However, two days later, on September 11, 2019, the White House released its hold on the military assistance to Ukraine.

On September 24, 2019, Senate Majority Leader Mitch McConnell stated that, although he was “very actively involved in advocating the aid,” he “was not given an explanation” about why it was being withheld, even though he talked to the Secretary of Defense and the Secretary of State. He stated: “I have no idea what precipitated the delay.”

The enclosed subpoena demands documents that are necessary for the Committees to examine the sequences of these events and the reasons behind the White House’s decision to withhold critical military assistance to Ukraine that was appropriated by Congress to counter Russian aggression.

That’s the subpoena that Mulvaney’s agency and DOD (the latter, after initially saying it would cooperate) are defying. It’s a subpoena that goes to the zenith of Congress’ authority, whether it is issued within or outside of an impeachment inquiry. But within an impeachment inquiry, it illustrates that on one issue of fact at the core of the investigation, there is bipartisan agreement that the White House was in the wrong.

And today, Mulvaney admitted that the White House did not have a very very good reason to withhold those funds, even while confirming that Trump was withholding the funds, in part, to extort a quid pro quo.

Even if the White House had a very very good reason, the law obliges the White House to explain to Congress why it blew off Congress’ power of the purse. The White House didn’t do it in real time — not even to Mitch McConnell. And the White House is refusing to do it now.

Update: Jack Goldsmith did a review of this issue in Lawfare today, but before the Mulvaney comments.

Update: Lisa Murkowski complained about this issue to Tim Mak today.

Who Cooked Adam Smith’s Dinner?

Who Cooked Adam Smith’s Dinner? is the title of a 2012 (2016 in the US) book by Katrine Marçal, a Swedish journalist. The title question is based on a famous bit from Adam Smith’ The Wealth of Nations*:

It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.

But the butcher, the brewer and the baker did not cook for Smith. That job went to his mother, Margaret Douglas, later joined by his cousin, Jane Dauglas. These women took care of Smith’s household until they died. Smith never mentions their labor.

Marçal explores the impact of Smith’s omission on the study of economics. One thread is the feminist story: much of the crucial work of care is provided through benevolence, not for money, and so it not considered part of the economy or part of the field studied by economists. Marçal points out that when an economist marries his housekeeper, the GDP goes down.

Smith’s omission makes ti possible to make “markets” the center of the study of economics. Eventually theorists dreamed up the silly story of Homo Economicus with his rational calculation of individual advantage as the essential human characteristic. We identify that rationality as masculine as opposed to feminine in the context of male-centered history and culture. In feminist terms, homo economicus is ungendered and dominant; women are the other in every way.

Instead of this stunted theory, Marçal shows that the economy isn’t just about the production of things for the market. A huge part of the work of any society is care for one another. We care for children, for the aged, the sick, the abandoned, the orphan and the widow, those injured in war and those injured in mind. We care for our planet, our air, our parks and our public spaces, our cities, our lakes and rivers. Much of that care has nothing to do with markets. We do it solely out of benevolence, in direct contradiction to Smith.

If economists are ignoring the importance of care in the functioning of an economy, what are they doing? They tell us that they study the allocation of scarce resources. This is from the introductory textbook Economics by Samuelson and Nordhaus, 18th Ed. 2005:

Economics is the study of how societies use scarce resources to produce valuable commodities and distribute them among different people. Id. at 4.

Scarcity and efficiency are the important elements of this definition. Care for the vulnerable must not involve a scarce resource under this definition, probably because everyone blithely assumes that women will do it for free, and there are plenty of women. Importantly, care isn’t controlled by the demands of efficiency. If the baby cries, what does it even mean to talk about efficiency? We do whatever it takes and for as long as it takes. So taking care of each other is excluded from the study of economics from the outset under Samuelson’s definition.

In his textbook Introduction to Macroeconomics, 6th Ed. 2012, N. Gregory Mankiw quotes the 19th C. British economist Alfred Marshall: “Economics is a study of mankind in the ordinary business of life.”. Id. at viii. I’d guess Marshall meant “Malekind”. Mankiw adds that The word economics springs from a Greek word meaning household, and he talks about how households have to make decisions about who goes to work and who cooks, and who gets the extra dessert. Then he drops the idea that cooking dinner is part of the economy. Apparently when Mankiw talks about the ordinary business of life, he means “male business”, not changing poopy diapers or making dinner. It’s funny when you see it from the perspective Marçal demonstrates.

Of course Marçal is right to say that economics ignores a huge chunk of the work necessary to maintain us in the ordinary business of our lives. That doesn’t make it useless, to be sure. Marçal points out the utility of the data and statistics gathered by economists. But it does mean that the models economists are creating are likely to be useless because they purposefully ignore a crucial element of ordinary life. And it means that economics isn’t a plausible basis for thinking about human nature.

The book is informed by feminist theory, but it isn’t theoretical. It is an application of feminist theory to economics. Marçal uses uses words like “gendered”; and she writes:

It’s only woman who has a gender. Man is human. Only one sex exists. The other is a variable, a reflection, complementary. P. 159.

Then she gives concrete examples that make the meanings perfectly clear for people like me who don’t know anything about feminist theory. The result is that I began to leann a little about the theory, and it was much easier than trying to learn it on my own from primary sources**.

Marçal devotes several chapters to eviscerating the economists dream person, Homo Economicus, the ungendered center of their universe, the Man we all must become. These chapters expose the shallow thinking that neoliberal economists like Gary Becker bring to the discussion of human nature. She makes neoliberalism look childish and silly. I particularly liked the discussion of the hidden emotional vulnerabilities of neoliberal Man. We have to coddle Mr. Market, and steady him when he gets the jitters, which happens all the time, and which, of course, requires tons of money.

Marçal writes clear, direct and engaging prose. Like every good book this one clarified several inchoate ideas that have been floating around in my head, and it gave me several new ideas I hope to take up in future posts. I am grateful to my excellent daughter who gave me this book.

==========
* Here it is in context. I leave for my skeptical readers the pleasure of picking at the holes in this passage.

// In almost every other race of animals, each individual, when it is grown up to maturity, is entirely independent, and in its natural state has occasion for the assistance of no other living creature. But man has almost constant occasion for the help of his brethren, and it is in vain for him to expect it from their benevolence only. He will be more likely to prevail if he can interest their self-love in his favour, and shew them that it is for their own advantage to do for him what he requires of them. Whoever offers to another a bargain of any kind, proposes to do this. Give me that which I want, and you shall have this which you want, is the meaning of every such offer; and it is in this manner that we obtain from one another the far greater part of those good offices which we stand in need of. It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity, but to their self-love, and never talk to them of our own necessities, but of their advantages.//

**Another good book for this purpose is Possession, by A.S. Byatt.

The Great Transformation Part 6: Labor as a Fictitious Commodity

Previous posts in this series:

The Great Transformation: Mainstream Economics and an Introduction to a New Series

The Great Transformation Part 1: The Market

The Great Transformation Part 2: More on Markets

The Great Transformation Part 3: Neoliberalism Before It Got Its New Name

The Great Transformation Part 4: Reaction and Counter-Reaction To Self-Regulating Markets

The Great Transformation Part 5: Polanyi on Marxian Analysis

In Chapter 6, Polanyi says that the theory of the self-regulating market, which is at the heart of laissez-faire and neoliberal economics, requires that all of the elements of production and consumption be subject to the price-setting mechanisms of a market, and that government is not allowed to interfere with those markets in any way. Polanyi defines commodities as things produced for sale; and markets are “contacts between actual buyers and sellers”. Following that definition, commodities are generally subject to market pricing, and that was generally true at the beginning of the Industrial Revolution, say the late 1700s. But three crucial elements of production were not at that time fully subject to markets: labor, land and money. In order for the self-regulating market to function, these three elements had to be brought under market control and freed from government regulation.

In Chapter 6, Polanyi calls these three elements “fictitious commodities”. That’s because they aren’t produced for consumption as the definition requires. Labor is human beings, who are part of society, not some product. Land stands for our natural surroundings, the place we live, and if we treat it like a cornucopia of goodies we’ll foul our own surroundings and make our lives miserable. Money is a social creation, not a commodity produced for sale.

And yet, for the self-regulating market to work, any element of humanity that extends beyond slavery, all efforts to preserve our home planet, and social control over our social creations must be stripped out, and the remains shoved into the same mold of one-dimensional value as potatoes and shoes. Anything less gives the defenders of laissez-faire and today’s neoliberals room to argue that the self-regulating market has never been allowed to do its magic and provide us with a material heaven on earth.

Polanyi discusses the impact of bringing the three fictitious commodities into market control in Chapters 14, 15 and 16. We start with the market in labor, which means the market in people’s lives. In Chapter 10, The Discovery of Society, Polanyi explains the separation of the economic and political spheres, starting with Joseph Townsend’s 1786 A Dissertation on the Poor Laws. Townsend tells the story an island populated by dogs and goats. The dogs eat the goats until there are too few to support the number of dogs. Then the dogs die down and the goats thrive. Then the dogs thrive and eat the goats, so the population of goats goes down. Here’s Townsend’s moral:

The weakest of both species were among the first to pay the debt of nature; the most active and vigorous preserved their lives. It is the quantity of food which regulates the numbers of the human species.

Here’s how Adam Smith explains it in Book 1 Chapter 8 of The Wealth of Nations:

Every species of animals naturally multiplies in proportion to the means of their subsistence, and no species can ever multiply be yond it. But in civilized society, it is only among the inferior ranks of people that the scantiness of subsistence can set limits to the further multiplication of the human species; and it can do so in no other way than by destroying a great part of the children which their fruitful marriages produce.

The liberal reward of labour, by enabling them to provide better for their children, and consequently to bring up a greater number, naturally tends to widen and extend those limits. It deserves to be remarked, too, that it necessarily does this as nearly as possible in the proportion which the demand for labour requires. If this demand is continually increasing, the reward of labour must necessarily encourage in such a manner the marriage and multiplication of labourers, as may enable them to supply that continually increasing demand by a continually increasing population. If the reward should at any time be less than what was requisite for this purpose, the deficiency of hands would soon raise it; and if it should at any time be more, their excessive multiplication would soon lower it to this necessary rate. The market would be so much understocked with labour in the one case, and so much overstocked in the other, as would soon force back its price to that proper rate which the circumstances of the society required. It is in this manner that the demand for men, like that for any other commodity, necessarily regulates the production of men, quickens it when it goes on too slowly, and stops it when it advances too fast.

It’s an unpleasant picture, but with decent nutrition and good medical care along with birth control and abortion, it’s an accurate description today. Birth rates decline in recessions and increase when the economy is booming. The difference, of course, is the element of choice available today, as this recent Wall Street Journal article explains:

While the uptick in fertility and birthrates is modest and could reverse, it appears the country’s improving economy is encouraging more couples to have children. The lingering financial toll of the recession prompted many young and less-educated Americans in particular to delay childbearing.

In Chapter 14, Polanyi describes the technique for bringing labor under market control.

To separate labor from other activities of life and to subject it to the laws of the market was to annihilate all organic forms of existence and to replace them by a different type of organization, an atomistic and individualistic one.

Such a scheme of destruction was best served by the application of the principle of freedom of contract. In practice this meant that the noncontractual organizations of kinship, neighborhood, profession, and creed were to be liquidated since they claimed the allegiance of the individual and thus restrained his freedom. To represent this principle as one of noninterference, as economic liberals were wont to do, was merely the expression of an ingrained prejudice in favor of a definite kind of interference, namely, such as would destroy noncontractual relations between individuals and prevent their spontaneous reformation.
P. 171.

Could that be closer to the neoliberal view of humans? Economic freedom is the only kind that matters, say the neoliberals. And government is to be used to enforce the kinds of contracts the neoliberals want, and strike down all contracts neoliberals don’t like. All debts are to be enforced to the letter against human beings and cities. All cooperation among workers is a restraint of trade, and is stopped by courts. All labor is available for consumption by employers, and if you don’t want to work, you are free to starve.

Corporate Profits as Percentage of Gross National Product

Corporate Profits as Percentage of Gross National Product


Meanwhile, the capitalists will not accept the possibility of any reduction in their take from the system, currently at absurd levels. When Donald Trump, who represents the Republican consensus, says that wages are too high, he means that returns to capital must be kept at the highest possible level. In order for profits to remain high, we have to keep wages low. Then we have to destroy the social safety net so workers will be forced to work for whatever wages are available. The lash of hunger should do the job, along with a militarized police force. This is the society envisioned by the early economists.

And, this is what Polanyi means when he talks about the dangers of treating labor like any other marketable commodity. It means the subordination of every aspect of the lives of workers to the maintenance of the wealth of the filthy rich.

The Great Transformation Part 5: Polanyi on Marxian Analysis

Previous posts in this series:

The Great Transformation: Mainstream Economics and an Introduction to a New Series

The Great Transformation Part 1: The Market

The Great Transformation Part 2: More on Markets

The Great Transformation Part 3: Neoliberalism Before It Got Its New Name

The Great Transformation Part 4: Reaction and Counter-Reaction To Self-Regulating Markets

The Great Transformation is an examination of the origin of the theory of self-regulating markets and its errors. Polanyi’s argument is that when a society is threatened by violent intrusions, such as the sudden introduction of markets as the dominant new organizing principle, it fights back. As discussed in Part 4, beginning in the 1840s or so there was a general feeling among the upper classes that the self-regulating markets were so destructive that social control had to be imposed to reduce the damage and prevent further harm. There was no theory, and no plan, just case-by-case legislative action. Factory and agrarian workers and other members of the lower classes could not vote, so that impetus came from other classes.

Polanyi says that for the society to survive, it was necessary for laborers and the impoverished to come into existence as a class with the right to make demands and expect to see them answered. Under the Speenhamland system and the Poor Laws in effect in the early 1800s, this was difficult, perhaps in part because of the split between those on relief and those with miserable poorly-paying work. When those laws were repealed and the poor put on the street where they served as the army of unemployed to keep wages at very low levels, it became possible for them to identify as a class. This sounds a bit like Marxian analysis. And, in fact, Marx agreed with the economic liberals of that day that the natural level of wages was the subsistence level. This is from the Paris Manuscripts:

The lowest and the only necessary wage rate is that providing for the subsistence of the worker for the duration of his work and as much more as is necessary for him to support a family and for the race of labourers not to die out. The ordinary wage, according to [Adam] Smith, is the lowest compatible with common humanity, that is, with cattle-like existence.

The reference to Smith is to Chapter VIII of The Wealth of Nations. Smith’s analysis of the wages of labor is much more complicated than this quote from Marx shows. He says that wages depend on a number of factors including whether a nation is declining or thriving. He says that in England in the 1770s wages were above mere subsistence, and the lives of workmen were improving. That helps explain the reaction to the intrusion of the free market in labor brought on in the early years of the Industrial Revolution. The sudden change from a reasonably pleasant life to a much more miserable existence contributed to the social demand for restraining the self-regulating market. Smith seems to approve of the higher wages workmen were receiving:

Is this improvement in the circumstances of the lower ranks of the people to be regarded as an advantage, or as an inconveniency, to the society? The answer seems at first abundantly plain. Servants, labourers, and workmen of different kinds, make up the far greater part of every great political society. But what improves the circumstances of the greater part, can never be regarded as any inconveniency to the whole. No society can surely be flourishing and happy, of which the far greater part of the members are poor and miserable. It is but equity, besides, that they who feed, clothe, and lodge the whole body of the people, should have such a share of the produce of their own labour as to be themselves tolerably well fed, clothed, and lodged.

The laissez-faire cheerleaders of the 1800s and their neoliberal counterparts don’t agree, and perhaps Marx’ pessimism is more realistic than Smith’s approbation.

In Chapter 13, Polanyi gives two reasons for his disagreement with Marxian analysis. First, Marx teaches that classes are the basic elements of society. Polanyi says that far more often classes arise to suit the form society has taken. When a society is stable, class interests can be used to understand the evolution of the society. When society undergoes structural changes, the class structure may fracture. A class that has become functionless may disintegrate and be replaced by other classes or not at all. These structural changes may be environmental, the result of war, technological advance, or the rise of a new enemy. In such cases, class theory doesn’t predict the outcome.

Secondly, there is the equally mistaken doctrine of the essentially economic nature of class interests. Though human society is naturally conditioned by economic factors, the motives of human individuals are only exceptionally determined by the needs of material want-satisfaction. That nineteenth-century society was organized on the assumption that such a motivation could be made universal was a peculiarity of the age. … Purely economic matters such as affect want-satisfaction are incomparably less relevant to class behavior than questions of social recognition. Want-satisfaction may be, of course, the result of such recognition, especially as its outward sign or prize. But the interests of a class most directly refer to standing and rank, to status and security, that is, they are primarily not economic but social. P. 160.

Of course, the assertion that human behavior is motivated solely by material want-satisfaction wasn’t just a peculiarity of the 19th Century, it’s the dominant idea of neoliberal economics. The idea that human beings are solely devoted to getting stuff at the best price is central to their models, and to their understanding of their ill-defined markets. It is just as false today as it was in Marx’ time. I googled the term “experiment pay compared to other people”, and got a bunch of papers and articles saying that pay isn’t the important thing. Other factors, including comparative pay levels, and the intrinsic rewards of the tasks are more important. Here’s one. Beyond that, we know humans have needs that go far beyond material goods. Just take a look at Maslow’s hierarchy of needs. Material goods satisfy the needs for safety and security, but stuff by itself isn’t going to get you much in the way of love and belonging, esteem or self-actualization.

One of the goals of neoliberalism is to re-imagine human beings as the utility maximizers of their theories. Here’s a paper that flatly says that money isn’t the important issue even for the most sociopathic set, CEOs. Giving them huge bonuses for increasing stock prices doesn’t produce higher stock prices. Even the John Galts of the Corporate Jungle aren’t good little neoliberals.

Judge Forrest’s Invitation to Congress: Pass the Smith-Amash Amendment

As I noted yesterday, Judge Katherine Forrest from enforcing Section 1021 of last year’s NDAA, because it is having a chilling effect on the First Amendment protected activities of plaintiff’s including Chris Hedges.

There’s an aspect of her ruling that was rather auspiciously timed. Because in addition to enjoining 1021, she invited Congress to fix it.

Accordingly, this Court preliminarily enjoins enforcement of §1021 pending further proceedings in this Court or remedial action by Congress mooting the need for such further proceedings.

As luck would have it, the House is poised to vote today on the Smith-Amash amendment to next year’s NDAA. Their amendment would largely–though perhaps not entirely–“moot the need” for any further proceedings in the Hedges case, because it would eliminate indefinite military detention for those captured in the US.

Reps. Adam Smith (D-Wash.) and Justin Amash [my Rep] are planning to offer an amendment to this year’s defense authorization bill that would guarantee that no one—citizen or otherwise—could be denied a fair trial if captured in the United States. Smith, who is the ranking member of the House Armed Services Committee, will introduce the bill during a hearing Wednesday. Amash has agreed to support it once the defense bill comes to the floor next week, possibly bringing along enough Republican support to ensure its passage in the House.

“The amendment is drafted to prevent the president from indefinitely detaining persons captured on US soil without charge or trial,” said Will Adams, a spokesperson for Amash.

I spoke to Adams last night, and the Amendment is within striking distance of having enough votes to pass–though the House leadership is trying a bunch of stunts to avoid that outcome.

I said passing this Amendment would mostly moot further proceedings. That’s because Forrest issued her injunction covering all the plaintiffs, including people like Brigitta Jonsdottir, who is an Icelandic citizen and has sworn off from traveling to the US because of the NDAA and other Wikileaks related prosecution. Whereas the Smith-Amash amendment would apply to Jonsdottir only if she were in the US; it doesn’t offer any protection to non-citizens outside of the US.

Which means, with her ruling, Forrest has made the Smith-Amash amendment the sensible middle ground (really, it ought to be considered the bare minimum, but even still, before last night it didn’t stand a chance in hell of passing the Senate). That is, it does what most Americans seem to want done to the NDAA, to limit it so it doesn’t apply to them.

In her ruling, Forrest made it clear she tried to offer the government an easy way to help her avoid enjoining this section.

The Court’s attempt to avoid having to deal with the Constitutional aspects of the challenge was by providing the Government with prompt notice in the form of declarations and depositions of the precise conduct in which plaintiffs are involved and which they claim places them in fear of military detention. To put it bluntly, eliminating these plaintiffs’ standing simply by representing that their conduct does not fall within the scope of § 1021 would have been simple. The Government chose not to do so–thereby ensuring standing and requiring this Court to reach the merits of the instant motion.

She also made it clear she’d welcome Congress fixing the problem. Let’s see if they do so today.

to Inform You that You Inform Us We Killed Another Drone Target'>We Request to Inform You that You Inform Us We Killed Another Drone Target

I want to follow-up on Jim’s latest drone post–and go back to Greg Miller’s article on drones–to look at the the approval process. A lot of readers of Miller’s article noted this passage, revealing that JSOC continues to avoid the kind of (minimal) oversight that CIA gets.

There is no comparable requirement in Title 10, and the Senate Armed Services Committee can go days before learning the details of JSOC strikes.

But read the whole passage in context.

Within 24 hours of every CIA drone strike, a classified fax machine lights up in the secure spaces of the Senate Intelligence Committee, spitting out a report on the location, target and result.

The outdated procedure reflects the agency’s effort to comply with Title 50 requirements that Congress be provided with timely, written notification of covert action overseas. There is no comparable requirement in Title 10, and the Senate Armed Services Committee can go days before learning the details of JSOC strikes.

Neither panel is in position to compare the CIA and JSOC kill lists or even arrive at a comprehensive understanding of the rules by which each is assembled.

The senior administration official said the gap is inadvertent. “It’s certainly not something where the goal is to evade oversight,” the official said. A senior Senate aide involved in reviewing military drone strikes said that the blind spot reflects a failure by Congress to adapt but that “we will eventually catch up.”

The disclosure of these operations is generally limited to relevant committees in the House and Senate and sometimes only to their leaders. Those briefed must abide by restrictions that prevent them from discussing what they have learned with those who lack the requisite security clearances. The vast majority of lawmakers receives scant information about the administration’s drone program.

In addition to the long-standing problem of JSOC avoiding oversight (and, implicitly, that this notice apparently comes after the fact, when CIA sends a fax over, which is a little late for the Intelligence Committees to weigh in, IMO), Miller lays out the following:

  • No one–not the intelligence committees or even the Gang of Four–gets enough insight into the drone programs to understand how JSOC’s practices differ from CIA’s (this is consistent with what the Gang of Four said about Anwar al-Awlaki’s killing, given that they said they never saw the kill lists)
  • As is typical, the intelligence committee overseers can’t share information from briefings with their colleagues not read into the program (this is how the Bush Administration gutted intelligence committee oversight of the torture and illegal wiretap programs)

But don’t worry, a senior Administration official says, this time, this secrecy is not designed specifically to avoid oversight.

Apparently, this SAO’s interlocutors don’t agree, because the WSJ’s Adam Entous and Siobhan Gorman have a similar story out today, just three days after Miller’s, quoting “current and former administration, military and congressional officials” complaining about oversight gaps.

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