The American Bear

Sunshine/Lollipops

Question: What Do David Barron and Jay Bybee Have in Common? | emptywheel

Answer: They were both nominated for a lifetime appellate court seat even as the Executive continued hiding their controversial OLC opinions.

Several hours ago, Barack Obama nominated David Barron, author of the notorious OLC memos authorizing the assassination of an American citizen with the kind of “due process” the Executive Branch gives, by itself, in secret, to serve on the First Circuit.

Yet even while Obama moved to make Barron a lifetime appointed judge, the FOIA suits to liberate the troubling opinion Barron authored continues at a snail’s pace. CIA filed an intransigent opinion back in August in the more general suit (that would, however, probably return Barron’s opinions). In a response a few weeks ago, the ACLU suggested that such frivolous claims could only serve to forestall the time when it will have to release the assassination-related documents.

The CIA’s blanket “no number no list” response is utterly deficient—indeed, it is so plainly inadequate that it verges on the frivolous. To justify a “no number no list” response, the agency must establish that not even one responsive document can be described, in any way,without revealing information that falls within FOIA’s exemptions. The CIA cannot carry this burden, and its brief barely makes the attempt. The agency’s “no number no list” response is so obviously deficient that one can only assume that the CIA’s goal is not to prevail on this motion but simply to delay as long as possible the day on which the agency will finally be required to explain what documents it is withholding and why.

While, when Bybee was confirmed to the Ninth Circuit, we had no idea about the Yoo-authored torture memos he rubber-stamped, we do know what one (of two) of Barron’s OLC opinions look like from the White Paper leaked to hasten John Brennan’s confirmation in February.

And at least from what we see, the authors of such an opinion have no business on a court. For starters, that’s because it suggested the Courts have no role in adjudicating the assassination of an American citizen.

Similarly, paragraph 23 (section IIC) refuses any review from Article III courts by invoking military (AUMF) operations to apply to some very spooky language.

Were a court to intervene here, it might be required inappropriately to issue an ex ante command to the President and officials responsible for operations with respect to their specific tactical judgement to mount a potential lethal operation against a senior operational leader of al Qa’ida or its associated forces. And judicial enforcement of such orders would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.

I get that Courts shouldn’t be making battlefield decisions. But in spite of the fact this passage invokes the AUMF twice, the invocation of “officials responsible for operations” falls far short of limiting the assertions to just the military.

In other words, it’s another instance where the white paper asserts a claim that is uncontroversial for the military to apply to the CIA as well.

Perhaps more troubling, it suggests if the President orders the CIA to assassinate an American citizen, it is legal.

Through his ‘Insider Threat’ program to force government workers to turn one another in for the ‘treason’ of unofficial disclosures President Barack Obama is proving himself the most cynical tool of corporate-state interests in recent history. The premise again is it is one’s position in the corporate-state bureaucracy that determines whether actions are in the public interest, not the actions themselves. The practical effect is to shove all power up the ‘chain of command’ because it is only the ruling class that has state sanction to ‘act in the public interest,’ meaning their own. Put another way, the policy is to redefine the public interest as what the ruling class says it is regardless of political-economic effect. L’etat, c’est moi is historically the realm of absolute monarchs and tyrants. I put this to his dwindling supporters where this leaves Mr. Obama (and the rest of imperial Washington). Rob Urie, Treason

Edward J. Snowden and the Exposure of Voyeuristic Fascism | Norman Pollack

SURVEILLANCE is not accidental strategy, but rather the cutting edge of individuals’ self-pacification, a well-tested mechanism of social control. One hesitates to speak, then even to think; one chooses one’s associates warily, lest found on someone’s list, the all-pervasive fear of being watched, dissected, analyzed by the prying eyes of the State, now a government-empowered and –legitimated National Security Agency (and multiple other intelligence agencies, along with such legislative onslaughts as TALON, CIFA, TIAP, and don’t forget MATRIX, Multistate Anti-Terrorism Information Exchange, some of which going even too far for Congress’s reactionary taste), fully capable of spying on and retrieving the most intimate conversations between people hitherto unsuspecting of eavesdropping. Hopefully, suspiciousness of government will ensue, even though practices of this nature continue, because, as political theory teaches us, democratic society and government are founded on trust, without which, there can be no social compact—and start expecting the worse.

Snowden put his finger in the dike holding back the sea of totalitarianism, itself not an inaccurate designation any longer, i.e., if one believes that civil liberties is the linchpin of its polar opposite, a social democracy based on the respect for and equal treatment of the individual under the rule of law, because what the US government has done is destroy the American constitutional-social fabric, in the process making a mockery of the law through trampling on traditional safeguards to freedom of thought and rights of association, protection from unwarranted searches and seizures, and down a slippery slope to everything from use of informers, planted evidence, “dirty tricks,” to encouragement of mutual suspicion, the breakup of radical organizations, whatever government deems central to its interests, safety, and continued lawlessness.

Snowden turned the spotlight on the forbidden territory of the dark world inhabited by the Obama administration, a reaching out of tentacles not only in America but on a world basis, as his revelations of PRISM and foreign communications intercepts, including wiretaps of diplomats and conferences shows. The details are familiar by now, from the Guardian, Washington Post, New York Times, to the Continental press and worldwide—a story that will not go away, given the enormity of the offense and the hypocrisy of Washington. For this reason, I believe Snowden is a marked man in Obama’s eyes, to him to be practically equated with Osama bin Laden, and therefore, being in Obama’s cross-hairs, if not through rendition (“accidents will happen”) then a direct target of paramilitary operations, Snowden is right to fear for his life and to seek asylum. At this writing, he has landed safely in Moscow, through, as reported, the cooperation of Chinese and Hong Kong authorities (creating diplomatic friction between them and the US) and will be in transit to a third country. The Damoclean sword of the Espionage Act will have to await other victims, sure to turn up in light of Obama’s obsession with secrecy and personal hostility toward being crossed. As I’ve said before, secrecy for him is insurance against being discovered for having committed war crimes.

Snowden cannot be allowed to go free, not because he divulged State Secrets, but because he symbolizes the power—may I say, sublimeness?—of truth, particularly against what he exposed as a pack of political criminals, and beyond that, exposed, through their workings, the inner springs of repression on which American society and its structure of power depend, namely, self-pacification as an overriding state of moral-political inaction of body and mind, a rejection of social protest in thought and deed, the individual subject to cues provided by acute patriotism, consumerism, and the heavy-handed militarization of Authority. That, we could see, and for some, speak out against. But this added factor, brought out by Snowden, of surveillance, gives self-pacification silent and powerful reinforcement: the fear of terrorism, itself contrived by government to justify security arrangements bordering on informal regimentation, has become transformed/extended into what psychologists would term—if only they examined consequential societal issues—the “introjection” of the entire power system in America, including its capitalist and military foundations, and the people’s own expected docility to its furtherance, goals, and ideology. That is a big burden to carry around, even if unnoticed (the test of repression’s value and successfulness to an authoritarian government), which leaves the individual naked and vulnerable to the extreme politicization of mindset designed to eschew critical thinking, and rather, glorify the State.

Domestic spying of the breadth and scope practiced by the NSA (which along with the CIA has become Obama’s Janus-faced look toward both internal and external acts of structural-political subversion) becomes the handmaid of counterterrorism, the latter, now self-legitimated through government edict thus spreading a cloak of legitimacy as well around the former. Surveillance is good! We hear ad nauseum that there must be a balance struck between security and privacy, with the former invariably taking precedence—a convenient debater’s trick because the former can be infinitely enlarged, and the latter, a straw man, toothless to boot. America’s fear of terrorism, itself a form of terrorism practiced on the people, paves the way for domestic spying on the part of Authority with impunity. Surveillance, as we are made aware by Snowden’s revelations, becomes so pervasive and institutionally entrenched (the recent exposure in the New York Times of the close relationship between the NSA and Silicon Valley confirms what he already has shown in the way the government has gained the cooperation of Google and others, our presumed agents, via the social media, of liberation) as to render one fearful, apathetic, in the face of Inevitable Technology and Big Government, that our turn may be next in the docket, the FISA Court applauding in the background, fearful, that is, that we may be suspected of ultimate subversion if we do not conform to every tenet, measure, operation, transmitted from On High.

On the Espionage Act charges against Edward Snowden | Glenn Greenwald

The essence of that extremely broad, century-old law is that one is guilty if one discloses classified information “with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation”. [Just consider] the worldwide debate Snowden has enabled - how these disclosures have “set off a national debate over the proper limits of government surveillance” and “opened an unprecedented window on the details of surveillance by the NSA, including its compilation of logs of virtually all telephone calls in the United States and its collection of e-mails of foreigners from the major American Internet companies, including Google, Yahoo, Microsoft, Apple and Skype” - and ask yourself: has Snowden actually done anything to bring “injury to the United States”, or has he performed an immense public service?

The irony is obvious: the same people who are building a ubiquitous surveillance system to spy on everyone in the world, including their own citizens, are now accusing the person who exposed it of “espionage”. It seems clear that the people who are actually bringing “injury to the United States” are those who are waging war on basic tenets of transparency and secretly constructing a mass and often illegal and unconstitutional surveillance apparatus aimed at American citizens - and those who are lying to the American people and its Congress about what they’re doing - rather than those who are devoted to informing the American people that this is being done.

Fisa court oversight: a look inside a secret and empty process | Glenn Greenwald

The vast amount of discretion vested in NSA analysts is also demonstrated by the training and briefings given to them by the agency. In one such briefing from an official with the NSA’s general counsel’s office - a top secret transcript of which was obtained by the Guardian, dated 2008 and then updated for 2013 - NSA analysts are told how much the new Fisa law diluted the prior standards and how much discretion they now have in deciding whose communications to intercept:

“The court gets to look at procedures for saying that there is a reasonable belief for saying that a target is outside of the United States. Once again - a major change from the targeting under Fisa. Under Fisa you had to have probable cause to believe that the target was a foreign power or agent of a foreign power. Here all you need is a reasonable belief that the target is outside of the United States …

“Now, all kinds of information can be used to this end. There’s a list in the targeting procedures: phone directories, finished foreign intelligence, NSA technical analysis of selectors, lead information. Now, you don’t have to check a box in every one of those categories. But you have to look at everything you’ve got and make a judgment. Looking at everything, do you have a reasonable belief that your target is outside the United States? So, cast your search wide. But don’t feel as though you have to have something in every category. In the end, what matters is, ‘Does all that add up to a reasonable belief that your target is outside the United States?’”

So vast is this discretion that NSA analysts even have the authority to surveil communications between their targets and their lawyers, and that information can be not just stored but also disseminated. NSA procedures do not ban such interception, but rather set forth procedures to be followed in the event that the NSA analyst believes they should be “disseminated”.

The decisions about who has their emails and telephone calls intercepted by the NSA is made by the NSA itself, not by the Fisa court, except where the NSA itself concludes the person is a US citizen and/or the communication is exclusively domestic. But even in such cases, the NSA often ends up intercepting those communications of Americans without individualized warrants, and all of this is left to the discretion of the NSA analysts with no real judicial oversight.

A “Roadmap” to Restoring Our Constitutional Liberties | Translation Exercises

The CIA … is a qualitatively different problem [than the NSA]. The reason is that they field what is essentially a small army. The problem with this force is that it is solely and exclusively accountable to the President. That Presidents like having a small army that they can use on a whim should not come as a surprise. Nevertheless, an army that can be deployed at the behest of a single individual goes strongly against every known or imagined notion of “checks and balances.” To make matters worse, our experience with CIA special operations has in no way or manner validated this Constitutional loophole. The record has not fluctuated between good and bad. On the contrary, it has been a continuous string of disasters. The blowback and loss of moral authority that the United States has experienced from CIA misadventures in Guatemala, Iran, the Bay of Pigs, Cambodia, Afghanistan, El Salvador, the Iran-Contra scandal, “Black Site” prisons, rendition programs, ongoing Drone Wars in at least a dozen nations, etc., have been individually and collectively intolerable. It must end.

The CIA’s record of repeated failure suggests a problem, one that runs to the core of that institution and its lack of accountability. Which is the reason that it must go. In 1991, Senator Daniel Patrick Moynihan introduced the “End of the Cold War Act” that would have abolished the CIA altogether while moving its (very) few useful functions into the State Department. He tried again in 1995 with the “Central Intelligence Agency Abolition Act.” Now would be an excellent time to revisit this wonderful idea. Moreover, the successful closing of that agency would send a clear message – one that is nicely designed “pour encourager les autres.” To repeat, the CIA does not need to be reconfigured or reformed, and its leadership does not need to be reviewed or reshuffled. It needs to be shut down. Period. It is of particular importance that its special operations branch be closed. Again, not reformed or recalibrated, but closed. If the President wishes to have a war with another nation, or a particular group within another nation, let him or her argue for and receive explicit Congressional authorization.

The essential and enduring feature of both post-9/11 presidents has been their shared contention that their core objective — and by extension, that of the executive branch — is to protect U.S. citizens from one particular form of harm: terrorist violence. Both success and failure at achieving this objective have justified the expansion of additional authorities and tools. If there are no terrorist attacks, then all policies in place must remain, but when terrorist plots are revealed or the rare attack occurs, then additional tools and secrecy are mandated. Like a ratchet wrench, it only works in one direction. It does not matter if these presidential powers erode individual civil liberties or the ability of citizens to comprehend or evaluate the activities of the national security state. Again, the executive branch’s obligation is less to protect citizens’ constitutional rights than it is to protect citizens’ lives, but only from terrorists. Micah Zenko

A “Roadmap” to Restoring Our Constitutional Liberties | Robert Prasch

Edward Snowden’s revelations have collectively stripped away the last shred of hope that the Obama Administration or the Congressional Democratic Leadership have established or intend to establish any meaningful changes from the dangerous precedents laid down by the openly and unabashedly anti-Constitutional Bush Administration. Indeed, the actions of this Administration arguably represent an even greater betrayal of American values, as they have provided the imprimatur of bi-partisanship to the shredding of our long-standing Constitutional rights. Unsurprisingly, the Obama Administration now finds that its greatest cheerleaders and apologists are the former consigliore of George W. Bush’s disgraced Administration. No less than former White House flak Ari Fleischer has happily tweeted that “Drone strikes. Wiretaps. Gitmo. O[bama] is carrying out Bush’s 4th term.” The Administration’s newfound friends confirm the old adage, “If you lie down with dogs, expect to wake up with fleas.”

How bad is it? Consider the stance now being taken by The New York Times, a newspaper that once worked hand-in-glove with the Bush Administration to amplify its pro-Iraq War propaganda and then, less than a year later, cooperated in covering up that same Administration’s massive and illegal domestic wiretapping program until after the 2004 elections were safely over. Yet these new revelations are so bad that the Times, despite its long and pitiful record of subservience to executive power, claims to be shocked. Its editors have concluded that the Obama Administration “has now lost all credibility on this issue.” (The phrasing of the sentence suggests that the Administration retains credibility on other issues. We can only speculate as to what issue or issues they have in mind. Prosecuting fraudulent bankers? Supporting meaningful financial reform? The 49 State Mortgage Settlement? Closing Guantanamo? Renditions? Bush-style “Free Trade” Agreements? Drone Warfare? The restoration of due process of law to Americans that the executive branch suspects of terrorism? But I digress). In the same editorial the Times also, and correctly, dismissed Sen. Dianne Feinstein’s pathetic justification of the these massive surveillance programs as “absurd.” Happily, they refrained from implying that Sen. Feinstein retains credibility on other issues.

The deception by [NSA head, Major] General [Keith] Alexander is especially troubling. … [He] has become the most powerful intelligence chief in the nation’s history. Never before has anyone in America’s intelligence sphere come close to his degree of power, the number of people under his command, the expanse of his rule, the length of his reign, or the depth of his secrecy. A four-star Army general, his authority extends across three domains: He is director of the world’s largest intelligence service, the National Security Agency; chief of the Central Security Service; and commander of the U.S. Cyber Command. As such, he has his own secret military, presiding over the Navy’s 10th Fleet, the 24th Air Force, and the Second Army. James Bamford, Connecting the Dots on PRISM, Phone Surveillance, and the NSA’s Massive Spy Center

Remember When NSA Surveillance Was Used to Help Launch the Iraq War? | The Nation

Many Washington policymakers and journalists have framed the NSA surveillance controversy as a debate between privacy and security. Proponents of the data dragnets argue straightforwardly that it is necessary to protect Americans from terrorists. “I flew over World Trade Center going to Senator [Frank] Lautenberg’s funeral, and in the distance was the Statue of Liberty. And I thought of those bodies jumping out of that building, hitting the canopy,” Senator Dianne Feinstein said on Sunday. “Part of our obligation is keeping Americans safe.”

Opponents often accept the same frame, but argue that the country has traded away too much privacy. “I want our law enforcement people to be vigorous in going after terrorists.” Senator Bernie Sanders told Chris Hayes on MSNBC’s All In Monday night. “But I happen to believe they can do that without disregarding the constitution of the United States or the civil liberties of the American people.”

But what if the government abuses the vast surveillance power it is accumulating? What if the NSA is used for political purposes, not safety? This is often left out of the debate, or dismissed outright. Eric Posner wrote at the New York Times website that “I am unaware—and correct me if I am wrong—of a single instance during the last 12 years of war-on-terror-related surveillance in which the government used information obtained for security purposes to target a political opponent, dissenter or critic.”

Unfortunately, NSA has already abused its surveillance power in at least one case where political opponents were targeted, and it’s a big one.

In 2003, a woman named Katharine Gun, who was working for a British intelligence agency, leaked a memo to the press from an NSA agent named Frank Koza. It described a massive American effort to monitor the communications of six delegations to the United Nations—the so-called “Middle Six” who were undecided on authorizing the Iraq War and who were being fiercely courted by both sides.

Here’s what memo said, in part. (Note “the Agency” is the NSA):

As you’ve likely heard by now, the Agency is mounting a surge particularly directed at the UN Security Council (UNSC) members (minus US and GBR of course) for insights as to how to membership is reacting to the on-going debate RE: Iraq, plans to vote on any related resolutions, what related policies/ negotiating positions they may be considering, alliances/ dependencies, etc - the whole gamut of information that could give US policymakers an edge in obtaining results favorable to US goals or to head off surprises. In RT, that means a QRC surge effort to revive/ create efforts against UNSC members Angola, Cameroon, Chile, Bulgaria and Guinea, as well as extra focus on Pakistan UN matters.

We’ve also asked ALL RT topi’s to emphasize and make sure they pay attention to existing non-UNSC member UN-related and domestic comms for anything useful related to the UNSC deliberations/ debates/ votes. We have a lot of special UN-related diplomatic coverage (various UN delegations) from countries not sitting on the UNSC right now that could contribute related perspectives/ insights/ whatever. We recognize that we can’t afford to ignore this possible source.

The British newspaper the Observer had three former intelligence officials confirm its authenticity, and confirmed that indeed a man named Frank Koza worked at the NSA. The British government tacitly admitted the memo was real by charging Gun with violating the Official Secrets Act. The charges were later dropped when the British government was worried it would have to disclose secret legal advice about the war during the trial.

James Bamford, a veteran journalist covering the NSA, confirmed the account in his book and said it extended to monitoring United Nations weapons inspectors in Iraq. At the time, however, U.S. media outlets covered the story lightly, or ignored it completely, in the case of the New York Times.

So here is a clear case where the U.S. government used its surveillance powers—ostensibly in place for national security—to target political opponents and advance an invasion of Iraq. The memo states explicitly that the surveillance is being used to “give US policymakers an edge in obtaining results favorable to US goals or to head off surprises.”

While this may be news to many people fiercely debating the NSA this week, it is not news to the United Nations. They have already accepted illegal surveillance as a part of international diplomacy. Here’s what several United Nations official told Foreign Policy this week:

Several U.N. based diplomats and officials interviewed for this story said they shared similar expectations—that most of their electronic and digital communications are being monitored by friendly and unfriendly governments.

“I think we all assume all of our emails are being monitored by all sorts of countries,” said one senior U.N. official, who like most others interviewed for this piece spoke by telephone or communicated by email on the condition of anonymity.

One chief argument made by civil libertarians is that massive surveillance power will inevitably lead to abuse—that the mission will creep from security to political and diplomatic applications. The fact is, it already has.

So one must then wonder: where does it go next?

The Times finally stirs, after blindly supporting Obama these many years. Consider your heritage: A.O.S. [Arthur O. Sulzberger] and publication of The Pentagon Papers. Yet you still compartment the issues, making civil liberties merely one area, instead of seeing it as integrated with the whole of public policy. … Obama is a menace to freedom. Period. What you protest against here has its immediate parallels in the doctrine and practice of indefinite detention, denial of habeas corpus to detainees, the very gruesome act of targeted assassination (a self-evident war crime), and yet you fiddle while America burns, by upholding the fiction that because Republicans are so bad Obama must therefore be good. Obama’s Crown Jewels

Expressions of outrage are simply not enough. We should have seen this coming, even from the early months of the First Term. Obama is a danger to civil liberties. He shows contempt for the Constitution from numerous angles, perhaps beginning with unctuous remarks about transparency, and then proceeding to throw a mantle of secrecy around government like not seen before in peacetime. Overclassification of documents is a deliberate attempt to cover up illegal and criminal activity which cannot stand the light of day. Indeed, Obama’s obsession with secrecy reveals an unstable, desperate personality, fearful not only of discovery of real and potential war crimes, but also of self-discovery, that beneath the “cool” exterior is one unduly attracted to power, to the point of being unscrupulous both in gathering and using it. Norman Pollack

A new slide from the NSA Prism presentation gives more details of the secretive program | The Guardian

Some articles have claimed that Prism is not a tool used for the collection of information from US companies, but is instead an internal tool used to analyse such information.
Others have speculated – in the light of denials from technology companies about granting “direct access” to servers – that Prism operates through interception of communication cables.
Both of these theories appear to be contradicted by internal NSA documents.
In the interests of aiding the debate over how Prism works, the Guardian is publishing an additional slide from the 41-slide presentation which details Prism and its operation. We have redacted some program names.
The slide, [above], details different methods of data collection under the FISA Amendment Act of 2008 (which was renewed in December 2012). It clearly distinguishes Prism, which involves data collection from servers, as distinct from four different programs involving data collection from “fiber cables and infrastructure as data flows past”.
Essentially, the slide suggests that the NSA also collects some information under FAA702 from cable intercepts, but that process is distinct from Prism.
Analysts are encouraged to use both techniques of data gathering.
The Guardian’s initial reporting of Prism made clear the technology companies denied all knowledge of the program, and did not speculate on whether it would need such co-operation in order to work. A far fuller picture of the exact operation of Prism, and the other surveillance operations brought to light, is expected to emerge in the coming weeks and months, but this slide gives a clearer picture of what Prism is – and, crucially, isn’t.

A new slide from the NSA Prism presentation gives more details of the secretive program | The Guardian

Some articles have claimed that Prism is not a tool used for the collection of information from US companies, but is instead an internal tool used to analyse such information.

Others have speculated – in the light of denials from technology companies about granting “direct access” to servers – that Prism operates through interception of communication cables.

Both of these theories appear to be contradicted by internal NSA documents.

In the interests of aiding the debate over how Prism works, the Guardian is publishing an additional slide from the 41-slide presentation which details Prism and its operation. We have redacted some program names.

The slide, [above], details different methods of data collection under the FISA Amendment Act of 2008 (which was renewed in December 2012). It clearly distinguishes Prism, which involves data collection from servers, as distinct from four different programs involving data collection from “fiber cables and infrastructure as data flows past”.

Essentially, the slide suggests that the NSA also collects some information under FAA702 from cable intercepts, but that process is distinct from Prism.

Analysts are encouraged to use both techniques of data gathering.

The Guardian’s initial reporting of Prism made clear the technology companies denied all knowledge of the program, and did not speculate on whether it would need such co-operation in order to work. A far fuller picture of the exact operation of Prism, and the other surveillance operations brought to light, is expected to emerge in the coming weeks and months, but this slide gives a clearer picture of what Prism is – and, crucially, isn’t.

Section 215: The White House’s Bullshit Talking Points | Marcy Wheeler

The government, over and over and over and over, assures us this is all very Constitutional. Even while the government, over and over and over and over, goes to great lengths to ensure citizens don’t learn how they’re being surveilled, which would (in addition to pissing them off) give them the ability to sue.

Until the Americans who have been surveilled are permitted to challenge this in a court — precisely what the government has gone to great lengths to prevent — White House claims to constitutionality ring hollow.

The government doesn’t have the confidence to let us test these claims in court. That ought to tell you what they really think about its constitutionality.