The American Bear

› Lies, Betrayals, Obfuscation | Norman Pollack

The People (imprisoned in their own fantasies, delusions, false consciousness) vs. Obama (skillful practitioner of deceit, war criminal) is no contest, given the political culture of acquiescence he has intensified and accelerated, through the pervasive atmosphere of counterterrorism on one hand, and worshipful gratitude to wealth-concentration and the structural hierarchy of power—founded on that wealth– on the other, on the shoulders of his predecessors, themselves adept at pushing the fortunes of advanced capitalism. A vicious circle, or perhaps dark hole out of which the public cannot climb, defines the present, with Obama the personification, the ideal leader, from the standpoint of ruling groups, in achieving the smooth integration of capitalism and militarism—the latter critical to the prevention of stagnation in the former. In today’s New York Times editorial (May 19), practically beseeching POTUS to take action on the climate issue, rather than slamming down hard on his dismal, indeed, treacherous, record, one sees the problem: abject dependence on a policy-structure rooted in the performance and systemic requirements of capitalism, whatever the quality, character, or decisions of leadership, and the consequences to the United States and the world at large.

[…] “…and no one doubts that he cares about it [the climate issue].” Is there any salutary position affecting a vital issue that Obama does care about? None. NYT misreads his record and intentions at every turn, climate change being an obvious case in point. Why persist with this delusion? Why grant heart and intelligence which, if only Republican obstruction did not exist, presumably would be resoundingly clear?

Face the reality, a deceitful president who would say anything to get elected and reelected, while supporting, by inaction as well as action, every vested interest working against the American people. [++]

› Obama to weaken fracking rules

climateadaptation:

rtamerica:

The federal government has proposed a new set of national fracking rules that would weaken disclosure requirements. The proposal allows ‘trade secrets’ to remain unknown from the public, which has distressed environmental groups.

I called it. Last month, environmental groups were doing handstands and backflips over Sally Jewell, who is Obama’s pick to lead the BLM (US Interior Department’s Bureau of Land Management).

She used to frack wells for Mobil oil company long before she was CEO of REI.

Last month, I wrote:

…the bigger story is about the left’s environmental heroine, Sally Jewell, who used to frack wells. As new head of the Dept. of Interior, she will (with Obama’s encouragement) - will - allow aggressive fracking on more public lands, possibly much more in our National Parks.

› The major sea change in media discussions of Obama and civil liberties | Glenn Greenwald

[It] is remarkable how media reactions to civil liberties assaults are shaped almost entirely by who the victims are. For years, the Obama administration has been engaged in pervasive spying on American Muslim communities and dissident groups. It demanded a reform-free renewal of the Patriot Act and the FISA Amendments Act of 2008, both of which codify immense powers of warrantless eavesdropping, including ones that can be used against journalists. It has prosecuted double the number of whistleblowers under espionage statutes as all previous administrations combined, threatened to criminalize WikiLeaks, and abused Bradley Manning to the point that a formal UN investigation denounced his treatment as “cruel and inhuman”.

But, with a few noble exceptions, most major media outlets said little about any of this, except in those cases when they supported it. It took a direct and blatant attack on them for them to really get worked up, denounce these assaults, and acknowledge this administration’s true character. That is redolent of how the general public reacted with rage over privacy invasions only when new TSA airport searches targeted not just Muslims but themselves: what they perceive as “regular Americans”. Or how former Democratic Rep. Jane Harman - once the most vocal defender of Bush’s vast warrantless eavesdropping programs - suddenly began sounding like a shrill and outraged privacy advocate once it was revealed that her own conversations with Aipac representatives were recorded by the government.

Leave to the side how morally grotesque it is to oppose rights assaults only when they affect you. The pragmatic point is that it is vital to oppose such assaults in the first instance no matter who is targeted because such assaults, when unopposed, become institutionalized. Once that happens, they are impossible to stop when - as inevitably occurs - they expand beyond the group originally targeted. We should have been seeing this type of media outrage over the last four years as the Obama administration targeted non-media groups with these kinds of abuses (to say nothing of the conduct of the Bush administration before that). It shouldn’t take an attack on media outlets for them to start caring this much.

[…] During the Bush years, it was conservatives who supported the Bush DOJ and Alberto Gonzales’ threats against the press on national security grounds; now, defenders of such threats to press freedoms are found almost exclusively from progressive circles (similarly, many of the most vicious and vocal attacks on WikiLeaks and Bradley Manning have come from progressives).

This is such an under-appreciated but crucial aspect of the Obama legacy. Recall back in 2008 that the CIA prepared a secret report (subsequently leaked to WikiLeaks) that presciently noted that the election of Barack Obama would be the most effective way to stem the tide of antiwar sentiment in western Europe, because it would put a pleasant, happy, progressive face on those wars and thus convert large numbers of Obama supporters from war opponents into war supporters. That, of course, is exactly what happened: not just in the realm of militarism but civil liberties and a whole variety of other issues. That has had the effect of transforming what were, just a few years ago, symbols of highly contentious right-wing radicalism into harmonious bipartisan consensus. That the most vocal defenders of this unprecedented government acquisition of journalists’ phone records comes from government-loyal progressives - reciting the standard slogans of National Security and Keeping Us Safe and The Terrorists - is a potent symbol indeed of this transformation. [++]

› The Law Behind the Associated Press Phone-Record Scandal | The New Yorker

From New Yorker General Counsel Lynn Oberlander:

The cowardly move by the Justice Department to subpoena two months of the A.P.’s phone records, both of its office lines and of the home phones of individual reporters, is potentially a breach of the Justice Department’s own guidelines. Even more important, it prevented the A.P. from seeking a judicial review of the action. Some months ago, apparently, the government sent a subpoena (or subpoenas) for the records to the phone companies that serve those offices and individuals, and the companies provided the records without any notice to the A.P. If subpoenas had been served directly on the A.P. or its individual reporters, they would have had an opportunity to go to court to file a motion to quash the subpoenas. What would have happened in court is anybody’s guess—there is no federal shield law that would protect reporters from having to testify before a criminal grand jury—but the Justice Department avoided the issue altogether by not notifying the A.P. that it even wanted this information. Even beyond the outrageous and overreaching action against the journalists, this is a blatant attempt to avoid the oversight function of the courts.

It is not, again, as if the government didn’t have options. The D.C. Circuit (in a 2005 opinion upholding a finding of contempt against the Times’s Judith Miller and Time’s Matt Cooper for refusing to testify about who had disclosed Valerie Plame’s identity as a C.I.A. operative) has held that there isn’t a First Amendment privilege for journalists to refuse to testify before a criminal grand jury, as has the Second Circuit (in a 2006 case in which the government was trying to find out who told the Times about a planned raid on two foundations suspected of providing aid to terrorists). In the wake of the decisions, there was a renewed effort to pass a federal shield law—though the proposed law would not have provided absolute protection in cases of national security—but, with the rise of WikiLeaks, that discussion died.

The Times’s case provides the facts most similar to the A.P.’s. The prosecutor had asked the Times to provide phone records; when the Times refused, he threatened to get the records directly from the phone companies. The Times then went to court and sought a declaratory judgment that its records were protected by reporter’s privilege. The Second Circuit ruled that phone records—even those held by a third party, such as a phone company—were subject to the same common-law privilege that would apply to the journalists’ own records. However, the court noted that there wasn’t a constitutional privilege to refuse to disclose such records to a criminal grand jury, and that any common-law privilege would be not absolute but “qualified”—meaning that it could be overcome by a compelling government interest. The Circuit, however, declined to define the privilege, other than to say that it wouldn’t stand up in the case before it.

Crucially, though the Times lost that case, 2–1, all of the judges agreed that government could not act unilaterally, without judicial review. As Judge Sack said in dissent:

For the question… is not so much whether there is protection for the identity of reporters’ sources, or even what that protection is, but which branch of government decides whether, when, and how any such protection is overcome.

He added, “Judge Winter’s opinion makes clear that the government’s demonstration of ‘necessity’ and ‘exhaustion’ must, indeed, be made to the courts, not just the Attorney General.”

In the A.P.’s case, though, the latter is exactly what did happen. (Though since Eric Holder, the Attorney General, said Tuesday that he recused himself, that demonstration wasn’t even made to him, but to someone else in the Department of Justice.) The Department of Justice chose to avoid the court system—and its independent check on the Department’s power—by serving its subpoenas directly on the phone companies without telling the A.P. In so doing, it apparently relied on an exception to its own policy of notifying a media company in advance of a subpoena if doing so “would pose a substantial threat to the integrity of the investigation.”

If, as has been reported, the grand jury is investigating the leak of information concerning the C.I.A. foiling in Yemen of an Al-Qaeda plot to bomb an airliner heading to the United States, it is hard to understand how a later request for phone records would pose a threat to the integrity of the investigation. This request for two months of records was ostensibly made after the calls were made. If the government had a suspicion that one of its employees was the leak, it could go to a court itself and seek a wiretap of that employee. (Of course, they would have to make a showing of probable cause, which they were able to skip by going directly to the A.P.’s phone companies.) There would seem to be no reason not to let the media organization know that it wanted phone records of calls already made—after all, what was the rush? Let the courts decide whether the Justice Department really needs those records or not.

Then again, this is the Obama/Holder “due process is not judicial process” DoJ.

See also: There’s a Place for Resolving Disputes, and the Administration Chose Not To Use It by Marcy Wheeler.

› Justice Department Investigation of AP Part of Larger Pattern to Intimidate Sources and Reporters | Trevor Timm

As part of a new leak investigation, the Justice Department has secretly obtained the call records for twenty phone lines owned by the Assocated Press (AP), which could put sources for as many as one hundred reporters at risk. The AP called the move a “massive and unprecedented intrusion,” saying they “regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.”

We agree. It’s time to stop looking at all of these leak investigations and prosecutions as ancillary to press freedom; they are a direct attack on it. This should be an important wake-up call for journalists.

While this incident has brought the Justice Department’s crackdown on leakers to a new extreme, it’s important to remember, this storm has been brewing for a while now. In five years, the Obama administration has prosecuted more leakers under the Espionage Act than all other administrations combined, and virtually all these prosecutions have engulfed journalists one way or another.

As part of this current investigation, we’ve known the FBI has been data mining government officials’ phone and email records for months, looking for links to journalists on a systematic scale. The Washington Post reported in January, the FBI is using new, “sophisticated software to identify names, key words and phrases embedded in e-mails and other communications, including text messages, which could lead them to suspects.”

According to the Post, “The FBI also looks at officials’ phone records — who called whom, when, for how long.” Anytime the FBI found a government official has contact with the unknown number of “particular” journalists, FBI agents were “confronting” officials with this information.

A similar leak investigation to the one that has engulfed the AP is aimed at New York Times sources for its investigation into secret US cyberattacks. The government refused to comment if the Justice Department has gone to similar extremes with the New York Times’ phone lines.

Regardless, as the New York Times reported on their front page in August of last year, these leak investigations are “casting a distinct chill over press coverage of national security issues as agencies decline routine interview requests and refuse to provide background briefings.” The Huffington Post recently interviewed several of the nation’s most prominent national security journalists, all of whom confirmed it’s a perilous time for journalists who are reporting on what the government considers secret.

The Justice Department does not deny this. When asked about the Obama administration’s crackdown on leakers last June, a senior Justice Department (DOJ) official told longtime national security reporter Shane Harris that the DOJ is “out for scalps.” Harris’ DOJ source also “made it clear that reporters who talked to sources about classified information were putting themselves at risk of prosecution.”

And it may be about to get worse. [continue]

› America's Words of Peace and Acts of War | David Bromwich

We have now had two successive presidents who dealt in a most anomalous way with personal intentions and evil actions. Bush did intend the evil he performed (as when he asked of the supposed high-value detainee Abu Zubaydah, “Who authorized putting him on pain medication?”), but one had the impression that he also did not know the meaning of what he did. This came out in his choice to delegate the major powers of action during the first six years of his presidency to the office of the vice president. By contrast, Obama gives the impression that he does not intend the evil he performs, but powerful others want it so pressingly that he cannot bear to say no. He recognizes what this means, from the point of view of right and wrong, but he thinks that his having not intended it, a preference sometimes telegraphed by a public demur, absolves him of responsibility. It is a perversion and a defection of the will. And it fits with his being a winner — someone who likes very much to win, far beyond knowing why he wants it so much — and also being a quitter. In many ways, Obama is as odd and disturbing a personality as Richard Nixon: another clever, arrogant, and isolated man who came to place tremendous value on secrecy and for whom, as with Obama, secrecy had its natural climax in secret wars.

In Obama’s case, too, as in Nixon’s, the exorbitant love of secrecy springs from a desire not to be judged. It has its source in an almost antinomian assurance that there is no one in the world who knows enough to judge him. There is, however, a respect in which Obama has become a stranger president than Nixon. What after all are we to make of the bizarre alternation of the commands to kill and the journeys to comfort the killed? As this president has lengthened the shadow of American power in Arab lands and made it hard for someone like Farea Al-Muslimi to persuade his countrymen that the U.S. is not at war with Islam, he has made serial visits to comfort Americans mourning the dead after the mass murders in Tucson, in Aurora, in Newtown, and in Boston. None of these speeches has carried a hint of the perception that there could be a link between American violence at home and abroad. The role of this president — a president of safety and protection rather than a president of liberty and the rule of law — is dismaying in itself. But there is something actively morbid in the dramatic assumption of grief counseling as his major public function, even as he continues in secret his wars against people about whom he will not speak to Americans except in platitude. [++]

› Support Assata Shakur, At Your Own Risk | Margaret Kimberly

The announcement that the FBI added Assata Shakur to the list of most wanted terrorists was initially mystifying, a real life example of the shock doctrine. Shakur has been a fugitive ever since 1979 and was granted asylum by Cuba in 1984. It seemed inexplicable that the government would reinitiate searching for a 65-year old woman who had already been at large for more than thirty years. Yet the FBI made a grand show of the announcement, complete with a black agent at the podium and a phalanx of New Jersey state troopers. Not only was Shakur added to the most wanted terrorist list but the government added $1 million to the $1 million bounty already in place.

Because of Barack Obama, Assata Shakur now faces the possibility of being kidnapped or murdered by the United States government. She may be held indefinitely without being charged or tried. Not only is she in danger, but because of Obama anyone who does as little as publicly defend her may potentially face the same fate.

It is the terrorist label which puts her and her supporters at greatest risk. The Patriot Act made giving “material support to terror” a federal offense which not only is punished very harshly, but is so amorphous as to mean anything the government chooses it to mean. In the Supreme Court decision which began the material support onslaught, a group attempting to teach peaceful activism was found nonetheless guilty because they had contact with the group designated as terrorist. The justices ruled that their intentions were of no consequence.

The only people safe in speaking of or contacting Shakur are those who mean her harm, and a bounty of $2 million will increase the number of persons who fall into that category. Not only is it important to resist the government and defend Shakur but also to name the villain in this story and that person is none other than Barack Obama.

One cannot be separated from the other. It is sad to see the continued effort to excuse Obama’s crimes and let him off the hook on so many occasions, but in the case of Assata Shakur the disingenuousness is particularly dangerous. Barack Obama has made manifest his predecessor’s desire to create a truly fascist machinery in this country. [++]

› Why is Obama withholding secret torture report from Americans? | Marcy Wheeler

[…] It may well be, for all the evidence the [Senate Select Committee on Intelligence] report apparently presents about the CIA providing inaccurate information about the program even to the White House, that the White House is shielding the institutions of the White House and the presidency.

Consider, for example, how the Bush White House unusually intervened to keep the torture program secret. According to a court document submitted by then CIA Director Leon Panetta in 2009, his predecessor at CIA, George Tenet, wasn’t the person who made the torture program a “Special Access Program” with sharply limited access, which is how it would normally work. Unnamed officials in the National Security Council did:

Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the sensitivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program.

The Bush-era Executive Order governing classification and the current one both require presidential authorization for someone besides one of several agency heads — in the case of the torture program, Tenet — to make a special access program. Thus, as the Federation of American Scientists’ Steven Aftergood notes, “if the NSC established a special access program, as Panetta said, then it must have been authorized by the President himself. In effect, the President established the special access program.” The former director of the office that oversees classified information, Bill Leonard, agrees. “If it wasn’t one of those [Agency heads] who established the SAP in question, there would have to be an authorization from the President authorizing that official to establish a SAP.”

While the CIA appears to be the entity stalling on the torture report, according to Panetta, the White House ultimately created and owns the program.

It’s not just Bush’s NSC that has taken extraordinary measures to keep the torture program secret. While Barack Obama’s administration has already permitted the declassification of a great deal of information on the torture program, in fall 2009 Obama took the almost unprecedented step of having his National Security Advisor — at the time, retired Gen. Jim Jones — submit a declaration in the American Civil Liberties Union’s Freedom of Information lawsuit seeking release of documents pertaining to the torture program. It did so to hide the role of the White House in torture.

The judge in the suit, Alvin Hellerstein, believed that a short phrase describing “the source of CIA’s authority” to conduct torture had been incorrectly redacted by the administration. Jones’ declaration, which remains sealed and unrecorded on the docket, apparently argued that phrase couldn’t be released.

Judge Hellerstein lost that argument (the 2nd Circuit overruled him, relying in part on Jones’ declaration), so we don’t know precisely what the phrase in question said. But other documents in the case make it clear the phrase refers to a Sept. 17, 2001, presidential “directive” that, in part, set up the torture program. Former CIA lawyer John Rizzo, who was a key figure in setting up the torture program, has described the directive. “A few days after the attacks, President Bush signed a top-secret directive to CIA authorizing an unprecedented array of covert actions against Al Qaeda and its leadership” including “the most ambitious, sensitive and potentially explosive new program authorized by the President — the capture, incommunicado detention and aggressive interrogation of senior Al Qaeda operatives.”

But as Rizzo makes clear, that directive not only authorized torture, it authorized a range of counterterrorism programs. The directive also authorized — and may still form part of the authorization for — the targeted killing program, most commonly associated with drones. Indeed, when the 2nd Circuit kept the phrase redacted, it cited other activities: “the withheld information pertains to intelligence activities unrelated to the discontinued program.”

President Obama’s administration may have already released a great deal of information on the torture program (which should mean much of the information in the report has already been declassified). But when it came to revealing the Bush White House’s role in unilaterally authorizing torture, Obama went to unusual lengths to keep the information secret. [++]

› Obama Can Close Guantanamo. Here’s How. | Noah Feldman

Interesting piece; however, the author makes the case for shutting Guantanamo only, not necessarily ending the practice of indefinite detention. Remember, many of the prisoners are striking to end their unlawful detention without charge (until the “end of hostilities”, nowhere in sight), not to get a new view at a new prison (86 of the 166 prisoners have been cleared for release). Nor does the author mention Obama’s own moratorium, imposed in early 2010, on releasing any Yemenis from the prison.

It’s easy to blame Congress for standing in the way of a rational solution. But if the Obama administration would take some of the legal ingenuity that it has applied in justifying indefinite detention and apply it instead to closing the island prison, maybe something could actually be done, despite the organized madness that is our constitutional separation of powers.

Start with the most fundamental reason that Obama should be able to act unilaterally. The president is commander in chief, and the Guantanamo detainees were all held pursuant to the executive power to wage war. The Obama administration says the detainees are being held as, in effect, prisoners of war pursuant to the Geneva Conventions, until the end of hostilities with al-Qaeda — whenever that may be. So why doesn’t the president, who has the absolute power to hold and release the detainees, have the authority to move them around according to his sound judgment?

… The first step would be for the Obama administration to show some of the legal self-confidence it did in justifying drone strikes against U.S. citizens or in ignoring the War Powers Resolution in the Libya military intervention. Likewise, it could assert a right of control over where the detainees should be held. And if the president’s lawyers are worried about Bush-style assertions of plenary executive power (which, for the record, didn’t concern them when it came to drones or Libya), there is a path [through the courts] they could follow that would hew closer to their favored constitutional style. [continue]

› Obama floats major change to Medicare | The Hill

The left is lashing out [?] at a proposal to reform Medicare that President Obama said he would consider as a way to reduce the deficit.

Left-leaning groups and liberal lawmakers say that combining Medicare’s doctor and hospital coverage would saddle beneficiaries with higher costs. The idea has attracted support from leading Republicans, and given Obama’s receptiveness, the policy could receive significant attention in the next round of deficit-reduction talks.

This is exactly what senior advocates fear, and they are launching pre-emptive strikes on Capitol Hill to ensure lawmakers understand the downside.

“There’s a feeling that beneficiaries should be paying more for Medicare, but they already pay a lot out of pocket,” said Diane Lifsey, legislative representative with the National Committee to Preserve Social Security and Medicare.

“That’s why we oppose this idea. The proposals are meant to save money, but they just end up costing beneficiaries,” she said.

Combining Medicare’s coverage for hospital and doctor care would unify Parts A and B under a single deductible.

[…] Tricia Neuman, a Medicare expert with the Kaiser Family Foundation, acknowledged that reforming Medicare’s benefit design would serve patients with “truly catastrophic medical expenses” not covered by supplemental insurance. But she predicted that creating a combined Part A/B deductible of $550 would raise costs on about 29 million beneficiaries.

“Recent benefit redesign proposals would provide real help to a small share of the Medicare population, but raise costs for the majority of beneficiaries — many of whom have modest incomes,” Neuman said in prepared testimony.

AARP, the powerful senior lobby, made a similar argument in a Feb. 26 letter to Brady.

“Most [Medicare] beneficiaries already struggle to make ends meet, and are particularly sensitive to the high cost of healthcare and prescription drugs,” wrote AARP senior vice president for government affairs Joyce A. Rogers.

“An examination of Medicare redesign must take into account the economic status of seniors,” she said.