10/03/2014 archive

Eric Holder Failed in Defending Americans’ Civil Liberties

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Eric Holder Continued Bush Legal Policies

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Holder’s inconsistent constitutional legacy

by Lauren Carasik, Al Jazeera

September 30, 2014 6:00AM ET

(H)is support for equality and the rule of law had its limits, including accountability for the nation’s most powerful. Impunity for corporations deemed too big to jail is incompatible with a civil rights agenda that must consider economic justice for communities who bore the brunt of predatory lending and continue to suffer from the financial fallout of other corporate malfeasance. In addition, his failure to prosecute anyone for the Central Intelligence Agency’s brutal interrogation and torture tactics abroad has eroded U.S. credibility on the rule of law.

Holder’s record on civil rights was marred by policies that supported the suppression of civil liberties in the name of the sprawling war on terrorism. The indefinite detention of terrorist suspects in the Guantánamo Bay facility under his watch runs afoul of international norms. He faced significant pushback on his initial proposal of trying Guantánamo detainees in federal courts under the principles of fairness and due process. He has since backed military commissions that many observers say lack legitimacy both domestically and internationally. Even the Navy’s defense counsel for the detainees has called the military justice system at Guantánamo a “Kafka-esque absurdity.” In July, Human Rights Watch and the Columbia University Law School issued a comprehensive report raising alarm about the DOJ’s tactics in investigating, prosecuting and incarcerating American Muslim terrorism suspects. And in August, Maj. Jason Wright, a member of the defense team for alleged 9/11 mastermind Khalid Sheikh Mohammed, resigned from the military, calling the proceedings show trials and criticizing the United States’ “abhorrent leadership” on human rights.

The American Civil Liberties Union and other activist groups denounced a speech that Holder gave at the Northwestern University School of Law in 2012 in which he argued that Barack Obama’s administration had the authority to engage in targeted killings anywhere in the world without judicial review, a critical check on executive power. In May the District of Columbia Court of Appeals upheld deference to the administration in a case brought by the family of U.S. citizen Anwar al-Awlaki, who was killed in a drone attack in Yemen in 2011 after he had been placed on a kill list. Journalist Jason Leopold recently obtained a copy of a DOJ memo about the justification for extrajudicial assassination that was heavily redacted, and the human toll of both intended targets and civilian casualties remains shrouded in secrecy.

The Freedom of the Press Foundation, a nonprofit that supports free speech and freedom of the press, characterized Holder as the worst attorney general on press freedom in a generation. The DOJ has prosecuted more whistleblowers and sources than the combined total from all previous administrations. In United States v. Sterling, the criminal prosecution of former CIA employee and alleged leaker Jeffrey Sterling, the DOJ argued that there is no reporter’s privilege in criminal cases to shield reporter and author James Risen from the obligation to reveal his source for information in a book about a botched CIA operation. The Supreme Court declined to hear Risen’s appeal, leaving the Fourth Circuit ruling against him to stand. Holder has promised that no reporter doing his job would go to jail under his watch. But the DOJ’s aggressive pursuit of journalists threatens to deter future sources, who may understandably fear the confidentiality of their disclosures. In 2013, Holder drew ire for signing off on a warrant to seize Fox News Washington correspondent James Rosen’s private emails, which followed condemnation of the DOJ for seizing the phone records of Associated Press reporters that May. And in a June 19, 2014, letter to Holder, a number of human rights and media advocacy groups asked him to halt the DOJ’s ongoing criminal investigation into WikiLeaks and its leader, Julian Assange, arguing that the specter of criminal liability in this case chills freedom of speech.

Government transparency has fared poorly in other areas as well. In 2008, Obama campaigned on the pledge of reforming the “state secrets” privilege – the legal precedent under which the government may exclude evidence from court proceedings to protect national security. But critics have denounced Holder’s expansive use of this rule to shield government activity from public scrutiny. Obama vowed that his administration would be the most transparent in history, but according to The Associated Press, censorship and denials under the Freedom of Information Act (FOIA) have increased. Though Holder issued new guidance on complying with FOIA requests in 2009, the DOJ’s own report on FOIA requests shows its record is less than stellar.

US bid for secret Gitmo force-feeding hearings challenged

Al Jazeera

October 1, 2014 12:35PM ET

In a motion filed last Friday, Justice Department lawyers requested that sessions relating to Abu Wa’el Dhiab – a Syrian national held at the detention camp since 2002 – be held in closed court. “An open hearing risks unauthorized disclosure of classified or protected information. The record in this case is large, with classified and protected information often inextricably intertwined with unclassified information,” the department argued.

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The secrecy request refers to hearings slated to begin on Oct. 6. Dhiab’s lawyers claim that their client – who has been held without charge for 12 years – has been subjected to abusive tactics to break his hunger strike. This includes forcible cell extraction and painful tube feeding, lawyers say. Medical records also suggest that guards removed Dhiab’s wheelchair as a punitive measure.

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The detainee has been approved for resettlement in Uruguay but is refusing food in protest over both his confinement and delays in getting final approval from the U.S. government for his resettlement.

At next week’s hearings, three expert witnesses – bioethicist Dr. Steven Miles, torture specialist Dr. Sondra Crosby and psychiatrist Brig. Gen. (Ret.) Dr. Stephen Xenakis – are scheduled to testify. Crosby and Xenakis have both examined Dhiab at Guantánamo, and in previous filings have described the detainee’s treatment as punitive and a violation of medical ethics, according to Dhiab’s lawyers.

Referring to the attempt by the Obama administration to move sessions pertaining to the client to closed court, Cori Crider, a member of Dhiab’s defense team, said it “smacks of desperation.”

“It’s obvious why the government wants an empty public gallery for the force-feeding trial: embarrassment,” she said, adding: “The government would prefer nobody was around to hear three doctors testify that force-feeding at the base is abusive and an effort to break hunger-strikers’ will. What is happening at Guantánamo today would appall most Americans, and Americans ought to be allowed to hear these witnesses speak.”

Majority Say Brennan Violated Checks and Balances, and Must Go

By Dan Froomkin, The Intercept

10/1/14

According to a new poll, a sizeable majority of American voters believe CIA officials violated the constitutional system of checks and balances when they hacked into computers being used by Senate staffers investigating torture.

And by a two-to-one margin (54 percent to 25 percent, with 22 percent not sure) they believe that CIA Director John Brennan should resign on account of the misleading statements he made about the incident.

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The poll found overwhelming public support for release of a long-completed report by the Senate Select Committee on Intelligence. The report is said to disclose abuse that was more brutal, systematic and widespread than generally recognized, and to expose a pattern of deceit in the Bush administration’s descriptions of the program to Congress and the public.

But despite having been completed in December 2012, the report remains inaccessible to the public. Most recently, the White House and the CIA have proposed redactions that Senate intelligence committee chair Dianne Feinstein said effectively undermine its key findings.

Fully 69 percent of those polled said they support releasing a declassified version of the report “to establish the historical record and to find out more about what happened”; compared to 22 percent who chose the option of not making the report public “because the findings might be damaging or embarrassing”.

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Calls for Brennan’s ouster emerged quickly after Feinstein’s floor speech in March, describing a blatant violation of the principle that Congress conducts oversight over the executive branch, not vice versa. Brennan quickly issued an angry denial whose qualifications were widely overlooked. A CIA Inspector General’s report, whose conclusions were made public in July, confirmed Feinstein’s allegations.

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Until the Senate report is released, a report issued last year by the Constitution Project’s blue-ribbon task force on detainee treatment remains the most comprehensive public reckoning of the torture regime.  And while it authoritatively assigns the blame for the use of torture on George W. Bush, Dick Cheney and their top aides, the report also blames the Obama administration for a cover-up that has stifled any sort of national conversation on the topic – and the media, for splitting the difference between the facts and the plainly specious arguments made by torture regime’s architects.

Anatomy of a Non-Denial Denial

By Dan Froomkin, The Intercept

9/26/14

(T)he non-denial denial is fundamentally an act of deception.

So when and if the accused has to admit what they did publicly – i.e. by saying something to the effect of “I wasn’t lying because I carefully didn’t answer the real question” – they are de facto admitting that they were intentionally being deceitful. If they are public officials, that means they are admitting they betrayed their public trust.

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The background: Back on March 11, Senate intelligence committee chair Dianne Feinstein took to the Senate floor to accuse the CIA of having violated the Constitution’s separation of powers principle by searching through computers being used by Senate staff members investigating the agency’s role in torturing detainees

Later that day, Brennan made comments to NBC’s Andrea Mitchell at a Council on Foreign Relations event that were widely interpreted as a blanket denial of the accusations.

“Nothing could be further from the truth,” Brennan said. “That’s just beyond the – you know, the scope of reason in terms of what we would do.”

But in July, a CIA inspector general’s report confirmed that the CIA had in fact improperly accessed those computers, just as Feinstein had charged.

Last week, on a panel at a national security and intelligence trade show, Brennan made his first public comments on the subject since the contradiction emerged between what he said and the truth.

Brennan now says that his denial had been mischaracterized, and that it was specific to the way Mitchell asked her question, which included a slightly hyperbolic and conflated paraphrasing of the charges that Feinstein had carefully drawn out that morning.

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I’m assuming that Brennan felt safe brushing off the “hacking” charge because CIA staffers didn’t technically have to circumvent security to conduct their search; the computers were at a CIA facility, and were maintained by the CIA. What the CIA circumvented was a well-documented agreement between it and the Senate committee. But calling that “hacking” is somewhat imprecise.

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But consider the context:

1) It was Brennan’s duty to publicly respond to Feinstein deeply troubling and very specific accusations, which happened to be correct.

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2) He could have argued his real position, but chose not to.

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3) This was Brennan’s strategy, not an isolated, spur-of-the-moment decision.

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4) Brennan’s non-denial denials weren’t the only way his approach to this issue was deceitful.

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5) He still refuses to admit he’s done anything wrong.

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The reason you so infrequently see the word “lie” in elite media news stories is that the editors generally take the position that even when someone has said something clearly not true, a reporter’s use of the word “lie” – rather than, say, “misspoke” or “was incorrect” – requires knowledge of the subject’s intent to deceive. And a fair-minded journalist, they argue, can’t be sure what’s going on in someone else’s head.

But when someone who has so clearly uttered a non-denial denial has to go back and explain how he intentionally responded to an accusation in a very circumscribed or elliptical way, and how that answer was mischaracterized as a denial – and how he made no attempt to correct the record – isn’t that prima facie evidence of intent to deceive?

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Nevertheless, even those reporters who had noted the limitations of Brennan’s denial didn’t really keep on the story. And over time, the skepticism and the nuance faded away, leaving the general impression that Brennan had in fact denied everything.

What could reporters have done? It’s not like anyone at the CIA was going to say anything more. But could they have kept demanding a straight answer somehow? Or simply kept writing about the story, treating Brennan’s statements as irrelevant, or even an admission?

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But how could the Washington press corps change its ways, so that a non-denial denial is no longer such an effective technique for people like Brennan to use, when they want a story to die, and their own careers to live?

“Punting the Pundits” is an Open Thread. It is a selection of editorials and opinions from around the news medium and the internet blogs. The intent is to provide a forum for your reactions and opinions, not just to the opinions presented, but to what ever you find important.

Thanks to ek hornbeck, click on the link and you can access all the past “Punting the Pundits”.

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Paul Krugman: Depression Denial Syndrome

Last week, Bill Gross, the so-called bond king, abruptly left Pimco, the investment firm he had managed for decades. People who follow the financial industry were shocked but not exactly surprised; tales of internal troubles at Pimco had been all over the papers. But why should you care?

The answer is that Mr. Gross’s fall is a symptom of a malady that continues to afflict major decision-makers, public and private. Call it depression denial syndrome: the refusal to acknowledge that the rules are different in a persistently depressed economy.

Mr. Gross is, by all accounts, a man with a towering ego and very difficult to work with. That description, however, fits a lot of financial players, and even the most lurid personality conflicts wouldn’t have mattered if Pimco had continued to do well. But it didn’t, largely thanks to a spectacularly bad call Mr. Gross made in 2011, which continues to haunt the firm. And here’s the thing: Lots of other influential people made the same bad call – and are still making it, over and over again. [..]

And that’s what makes the Bill Gross story interesting. He’s pretty much the only major deficit hysteric to pay a price for getting it wrong (even though he remains, of course, immensely rich). Pimco has taken a hit, but everywhere else the reign of error continues undisturbed.

Trevor Timm: Your iPhone is now encrypted. The FBI says it’ll help kidnappers. Who do you believe?

Apple and Google have finally encrypted your phone data by default. And that’s a bad thing?

Much of the world has been enthralled by the new iPhone 6, but civil liberties advocates have been cheering, too: Along with iOS 8, Apple made some landmark privacy improvements to your devices, which Google matched with its Android platform only hours later. Your smartphone will soon be encrypted by default, and Apple or Google claim they will not be able open it for anyone – law enforcement, the FBI and possibly the NSA – even if they wanted to.

Predictably, the US government and police officials are in the midst of a misleading PR offensive to try to scare Americans into believing encrypted cellphones are somehow a bad thing, rather than a huge victory for everyone’s privacy and security in a post-Snowden era. Leading the charge is FBI director James Comey, who spoke to reporters late last week about the supposed “dangers” of giving iPhone and Android users more control over their phones. But as usual, it’s sometimes difficult to find the truth inside government statements unless you parse their language extremely carefully. So let’s look at Comey’s statements, line-by-line.

Welcome to The Breakfast Club! We’re a disorganized group of rebel lefties who hang out and chat if and when we’re not too hungover  we’ve been bailed out we’re not too exhausted from last night’s (CENSORED) the caffeine kicks in. Join us every weekday morning at 9am (ET) and weekend morning at 10:30am (ET) to talk about current news and our boring lives and to make fun of LaEscapee! If we are ever running late, it’s PhilJD’s fault.

This Day in History

O.J. Simpson found not guilty of murder at his criminal trial; St. Francis of Assisi dies; Germany reunifies; Baseball’s ‘shot heard ’round the world’; ‘Captain Kangaroo’ and ‘Mickey Mouse Club’ hit TV.

Breakfast Tunes

This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.

Find the past “On This Day in History” here.

October 3 is the 276th day of the year (277th in leap years) in the Gregorian calendar. There are 89 days remaining until the end of the year.

On this day in 1967, Woody Guthrie, godfather of the 1950s folk revival movement, dies.

In 1963, Bob Dylan was asked by the authors of a forthcoming book on Woody Guthrie to contribute a 25-word comment summarizing his thoughts on the man who had probably been his greatest formative influence. Dylan responded instead with a 194-line poem called “Thoughts on Woody Guthrie,” which took as its theme the eternal human search for hope. “And where do you look for this hope that yer seekin’?” Dylan asks in the poem, before proceeding to a kind of answer:

You can either go to the church of your choice

Or you can go to Brooklyn State Hospital

You’ll find God in the church of your choice

You’ll find Woody Guthrie in Brooklyn State Hospital

Woodrow Wilson “Woody” Guthrie (July 14, 1912 – October 3, 1967) is best known as an American singer-songwriter and folk musician, whose musical legacy includes hundreds of political, traditional and children’s songs, ballads and improvised works. He frequently performed with the slogan This Machine Kills Fascists displayed on his guitar. His best-known song is “This Land Is Your Land”, which is regularly sung in American schools. Many of his recorded songs are archived in the Library of Congress. Such songwriters as Bob Dylan, Phil Ochs and Tom Paxton have acknowledged their debt to Guthrie as an influence.

Guthrie traveled with migrant workers from Oklahoma to California and learned traditional folk and blues songs. Many of his songs are about his experiences in the Dust Bowl era during the Great Depression, earning him the nickname the “Dust Bowl Troubadour”. Throughout his life Guthrie was associated with United States communist groups, though he was never an actual member of any.

Guthrie was married three times and fathered eight children, including American folk musician Arlo Guthrie. He is the grandfather of musician Sarah Lee Guthrie. Guthrie died from complications of Huntington’s disease, a progressive genetic neurological disorder. During his later years, in spite of his illness, Guthrie served as a figurehead in the folk movement, providing inspiration to a generation of new folk musicians, including mentor relationships with Ramblin’ Jack Elliott and Bob Dylan.

Folk revival and Guthrie’s death

In the late 1950s and early 1960s, a new generation of young people were inspired by folk singers including Guthrie. These “folk revivalists” became more politically aware in their music than those of the previous generation. The American Folk Revival was beginning to take place, focused on the issues of the day, such as the civil rights movement and free speech movement. Pockets of folk singers were forming around the country in places such as Cambridge, Massachusetts and the Greenwich Village neighborhood of New York City. One of Guthrie’s visitors at Greystone Park was the 19-year-old Bob Dylan, who idolized Guthrie. Dylan wrote of Guthrie’s repertoire: “The songs themselves were really beyond category. They had the infinite sweep of humanity in them.” After learning of Guthrie’s whereabouts, Bob Dylan regularly visited him. Guthrie died of complications of Huntington’s disease on October 3, 1967. By the time of his death, his work had been discovered by a new audience, introduced to them in part through Bob Dylan, Pete Seeger, Ramblin’ Jack Elliott, his ex-wife Marjorie and other new members of the folk revival, and his son Arlo.

Huntington’s Disease Society of America

Ooh… Scary.

Praising with faint (bleep)

The real news and next week’s guests below.