The majestic petulance of John Roberts: Via Salon: Glenn Greenwald.

The petulance and sense of self-importance on display here is quite something to behold:

U.S. Supreme Court Chief Justice John Roberts said Tuesday the scene at President Obama's State of the Union address was "very troubling" . . . . Obama chided the court, with the justices seated before him in their black robes, for its decision on a campaign finance case. . . . Responding to a University of Alabama law student's question, Roberts said anyone was free to criticize the court, and some have an obligation to do so because of their positions.
"So I have no problems with that," he said. "On the other hand, there is the issue of the setting, the circumstances and the decorum.
"The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court -- according the requirements of protocol -- has to sit there expressionless, I think is very troubling."

Discussing Citizens United with Larry Lessig: Via Salon: Glenn Greenwald.

Just in case readers here forgot how angry they were with me for my partial defense of the Citizens United decision, permit me to risk once again provoking the hornets' nest by recommending this 20-minute discussion I had on Monday night with Harvard Law Professor Larry Lessig on The Young Turks.  At The Huffington Post, Lessig wrote this response to the arguments I made about the case, and we had what I thought was a very constructive and enlightening discussion of the relevant issues:

Read Original Article:(Via Salon: Glenn Greenwald.)

Our human rights vs. The Others: Via Salon: Glenn Greenwald.

(updated below - Update II)

Ten American Baptists were arrested two weeks ago in Haiti on charges that they exploited the chaos in that country by attempting to smuggle 33 young Haitian children across the border without permission -- either to bring them to a life of Christianity or (as some evidence suggests) to filter them into a child trafficking ring.  National Review's Kathryn Jean Lopez is deeply upset by the plight of at least one of the detained Americans, Jim Allen, whom she contends (based exclusively on his family's claims) is innocent.  Lopez demands that the State Department do more to "insist" upon Allen's release, and -- most amazingly of all -- complains about the conditions of his detention.   She has the audacity to cite a Human Rights Watch description of prison conditions in Haiti as "inhumane."  Lopez complains that Allen was waterboarded, stripped, frozen and beaten has "hypertension," was shipped thousands of miles away to a secret black site beyond the reach of the ICRC and then rendered to Jordan allowed to speak to his wife only once in the first ten days of his confinement, and was consigned to years in an island-prison cage with no charges denied his choice of counsel for a few days (though he is now duly represented in Haitian courts by a large team of American lawyers). [ Read more ... ]

Susan Collins spreads central myth about the Constitution: Via Salon: Glenn Greenwald.

Over the weekend, Sen. Susan Collins released a five-minute video in which she sounded as though she were possessed by the angriest, most unhinged version of Dick Cheney.  Collins recklessly accused the Obama administration of putting us all in serious danger by failing to wage War against the Terrorists.  Most of what she said was just standard right-wing boilerplate, but there was one claim in particular that deserves serious attention, as it has become one of the most pervasive myths in our political discourse:  namely, that the U.S. Constitution protects only American citizens, and not any dreaded foreigners.  Focusing on the DOJ's decision to charge the alleged attempted Christmas Day bomber with crimes, Mirandize him and provide him with counsel, Collins railed:  "Once afforded the protection our Constitution guarantees American citizens, this foreign terrorist 'lawyered up' and stopped talking" (h/t).  This notion that the protections of the Bill of Rights specifically and the Constitution generally apply only to the Government's treatment of American citizens is blatantly, undeniably false -- for multiple reasons -- yet this myth is growing, as a result of being centrally featured in "War on Terror" propaganda. [ Read more ... ]

Salon Radio: ACLU Executive Director Anthony Romero: Via Salon: Glenn Greenwald.

In October, 2008, the ACLU issued a report outlining the policies needed to restore civil liberties and America's constitutional framework in the wake of the Bush assault, entitled "Actions for Restoring America."  On the one-year anniversary of Obama's inauguration as President, the ACLU has issued a new report -- pointedly and revealingly entitled "America Unrestored" -- which details Obama's record in these areas.  Although there have been a few isolated bright spots (the DOJ's intensified domestic enforcement of civil rights laws), Obama's overall civil liberties record has been extremely disappointing, and this report from the ACLU (with which I consult) comprehensively documents the failures. [ Read more ... ]

Follow-up on the Citizens United case: Via Salon: Glenn Greenwald.

(updated below - Update II - Update III)

As one would expect, a substantial number of commenters yesterday disagreed with the Supreme's Court ruling in the Citizens United case case and with my partial defense of it.  I say that's to be expected because, in our political discourse, it's virtually always the case that opinions about court rulings perfectly coincide with opinions about the policy whose constitutionality is being adjudicated (e.g., those who favor same-sex marriage on policy grounds cheer court rulings that such marriages are constitutionally compelled, while those who oppose them on policy grounds object to those court rulings, etc. etc.).  When a court invalidates Law X or Government Action Y on constitutional grounds, it's always so striking how one's views about the validity of the court's ruling track one's beliefs about the desirability of Law X/Action Y on policy grounds (e.g., "I like Law X and disagree with the Court's ruling declaring Law X unconstitutional" or "I dislike Law X and agree with the Court's striking down Law X").  Campaign finance laws are popular with readers here, and thus a court decision striking down those laws inevitably will be unpopular (though the public at large -- including 2/3 of Democrats -- overwhelmingly agrees with the Court's ruling).  It's critical always to note that these are two entirely distinct questions:  (1) is Law X/Government Action Y a good thing?, and (2) is Law X/Government Action Y Constitutional?  If you find yourself virtually always providing the same answer to both questions -- or, conversely, almost never providing opposite answers -- that's a very compelling sign that your opinions about court rulings are outcome-based (i.e., driven by your policy preferences) rather than based in law or the Constitution. [ Read more ... ]

Congress takes a bold stand against surveillance abuses: Via Salon: Glenn Greenwald.

Fixating on and condemning abuses of other countries is one of the greatest weapons the U.S. Government wields for distracting attention away from its own transgressions:  like those gossip-obsessed individuals endlessly mucking around in and passing judgment on the personal lives of others as a means of ignoring their own failings:

The San Francisco Chronicle, yesterday:

Few expect Google Inc.'s stare-down with China to usher in a new era of openness across the Asian nation, but some believe -- or hope -- it could pressure the government to improve relations with foreign technology companies. . . . The Obama administration issued statements of support for Google, and members of Congress are pushing to revive a bill banning U.S. tech companies from working with governments that digitally spy on their citizens.

The creepy mindset behind Cass Sunstein's creepy proposal: Via Salon: Glenn Greenwald.

(updated below - Update II)

Cass Sunstein has long been one of Barack Obama's closest confidants.  Often mentioned as a likely Obama nominee to the Supreme Court, Sunstein is currently Obama's head of the Office of Information and Regulatory Affairs where, among other things, he is responsible for "overseeing policies relating to privacy, information quality, and statistical programs."  In 2008, while at Harvard Law School, Sunstein co-wrote a truly pernicious paper proposing that the U.S. Government employ teams of covert agents and psuedo-"independent" advocates to "cognitively infiltrate" online groups and websites -- as well as other activist groups -- which advocate views that Sunstein deems "false conspiracy theories" about the Government.  This would be designed to increase citizens' faith in government officials and undermine the credibility of conspiracists.  The paper's abstract can be read, and the full paper downloaded, here.  [ Read more ... ]

The backfiring of the surveillance state: Via Salon: Glenn Greenwald.

(updated below - Update II)

Every debate over expanded government surveillance power is invariably framed as one of "security v. privacy and civil liberties" -- as though it's a given that increasing the Government's surveillance authorities will "make us safer."  But it has long been clear that the opposite is true.  As numerous experts (such as Rep. Rush Holt) have attempted, with futility, to explain, expanding the scope of raw intelligence data collected by our national security agencies invariably impedes rather than bolsters efforts to detect terrorist plots.  This is true for two reasons:  (1) eliminating strict content limits on what can be surveilled (along with enforcement safeguards, such as judicial warrants) means that government agents spend substantial time scrutinizing and sorting through communications and other information that have nothing to do with terrorism; and (2) increasing the quantity of what is collected makes it more difficult to find information relevant to actual terrorism plots.  As Rep. Holt put it when arguing against the obliteration of FISA safeguards and massive expansion of warrantless eavesdropping power which a bipartisan Congress effectuated last year: [ Read more ... ]

Rove: Champion of "traditional" divorce: Via Salon: Glenn Greenwald.

(updated below)

Karl Rove is an outspoken opponent of same-sex marriage, citing "5,000 years of understanding the institution of marriage" as his justification.  He also famously engineered multiple referenda to incorporate a ban on same-sex marriage into various states' constitutions in 2004 in order to ensure that so-called ""Christian conservatives" and "value voters" who believe in "traditional marriage laws" would turn out and help re-elect George W. Bush.  Yet, like so many of his like-minded pious comrades, Rove seems far better at preaching the virtues of "traditional marriage" to others and exploiting them for political gain than he does adhering to those principles in his own life:

Karl Rove granted divorce in Texas

The NYT's view of "journalistic objectivity": Via Salon: Glenn Greenwald.

(updated below)

I've written many times before about Sami al-Hajj, the Al Jazeera cameraman who was abducted by the U.S. in late 2001, tortured at Bagram, sent to Guantanamo for seven years -- where he was never charged with any crime and was interrogated overwhelmingly about Al Jazeera's operations, not about Terrorism -- and then suddenly released without explanation last year, as though the whole thing never happened.  The due-process-free imprisonment of this journalist by the U.S. government was ignored almost completely by the American media (other than Nicholas Kristof), even as it righteously obsessed on the far shorter and far more humane imprisonment of journalists by countries such as Iran and North Korea (hey, look over there at those tyrannical countries - they imprison our journalists!!!!!).  Aside from al-Hajj, we've imprisoned numerous other journalists without charges in Iraq -- and continue to this day to do so -- including ones who work for Reuters and the Associated Press.

Today, The New York Times' media reporter Brian Stelter profiles al-Hajj, who is now an on-air correspondent for Al Jazeera.  The article recounts the details of al-Hajj's detention, his description of his torture, and the physical and psychological wounds he still suffers from his treatment at the hands of his American captors.  All things considered, the article is a decent effort to explain what happened, and Stelter deserves credit for bringing some desperately needed attention to this story.  Nonetheless, the article contains some rather striking and revealing passages, beginning with this: [ Read more ... ]

The Joys of Airstrikes and Anonymity: Via Salon: Glenn Greenwald.

Each time the U.S. bombs a new location in the Muslim world, the same pattern emerges.  First, officials from the U.S. or allied governments run to their favorite media outlet to claim -- anonymously -- that some big, bad, notorious, "top" Al Qaeda leader "may have been" or "likely was" killed in the strike, and this constitutes a "stinging" or "devastating" blow against the Terrorist group.  These compliant media outlets then sensationalistically trumpet that claim as the dominant theme of their "reporting" on the attack, drowning out every other issue.  [ Read more ... ]

Salon Radio: Critical state secrets hearing today: Via Salon: Glenn Greenwald.

(updated below w/transcript - Update II)

[link to recorder fixed]

The case of Mohamed v. Jeppesen -- brought by five victims of Bush's torture/rendition program against the Boeing subsidiary that shipped them to be tortured -- was the Obama DOJ's first test of its commitment to restore basic accountability and the rule of law.  Back in February, it resoundingly failed that test when they demanded that the case be dismissed in its entirety by invoking the same radicalized version of the "state secrets" privilege which the Bush DOJ, to great controversy, repeatedly invoked.  That was the first sign that things would go terribly awry with Obama's rule of law and civil liberties record.  This warped rendition of the "state secrets" doctrine transforms it from a long-standing, simple evidentiary privilege (i.e., this specific document is too sensitive to use in the litigation) into a sweeping, dangerous shield of immunity for government lawbreaking (i.e., courts have no right to review the legality of the crimes we commit in secret). 

The Obama administration now insists that courts must dismiss lawsuits alleging presidential lawbreaking whenever the CIA Director claims the lawsuit would jeopardize state secrets; or, as the ACLU Brief puts it, "torture victims must be denied a day in court based on an Affidavit submitted by their torturers."  The Obama DOJ has gone on to invoke that same Bush-created version of the secrecy theory to demand dismissal of numerous other cases alleging various types of lawbreaking by the Executive Branch. [ Read more ... ]

Is Obama's civil liberties record understandable?: Via Salon: Glenn Greenwald.

Earlier this week, Kevin Drum said that "nine times out of ten" Obama's policies are "pretty much what [he] expected" but that "the biggest one-time-out-of-ten where he's not doing what [he] expected is in the area of detainee and civil liberties issues."  Similarly, Andrew Sullivan cited "accountability for war crimes and civil rights" as among the very few issues on which he finds fault with Obama.  Matt Yglesias objects to those observations as follows:

Both Kevin Drum and Andrew Sullivan say they think most people are too hard on Obama, but express disappointment at his record on civil liberties issues. I agree that the civil liberties record hasn’t been exactly what I would have wanted, but I'm continually surprised that people are disappointed in this turn. Of all the things for an incumbent President of the United States to take political risks fighting for, obviously reducing the power of the executive branch is going to be dead last on the list. If you want to see civil liberties championed, that’s going to have to come from congress.

The extreme secrecy of the federal courts: Via Salon: Glenn Greenwald.

Once conservatives became embarrassed by their cowardly warnings that we would all be killed if we held a 9/11 trial in New York, they switched to a new argument:  trials in a real court would lead to the disclosure of classified information that would help the Terrorists.  In advancing this claim, they relied on the always-unhinged rantings of National Review's Andy McCarthy -- who has also suggested that Bill Ayers was the real author of Barack Obama's "Dreams from my Father"; attacked his own editors for pointing out the falsehoods of Sarah Palin's "death panel" claims, which McCarthy insisted were true; defended the Birther movement and dissented from NR's editorial rejection of it; and was excoriated by Rich Lowry for claiming that Obama "rather likes tyrants and dislikes America."  This person -- someone who is often too fringe, hysterical and delusional even for National Review -- is the "legal expert" on which the Right is relying to claim that real trials will jeopardize classified information. [ Read more ... ]

Salon Radio: Rep. Jerry Nadler on State Secrets Act: Via Salon: Glenn Greenwald.

Last Friday, the House Judiciary Committee, by a vote of 18-12, approved a bill entitled The State Secret Protection Act of 2009, which, if enacted, would be the first law ever to regulate and limit the President's ability to use the "state secrets privilege" to compel the dismissal of lawsuits that allege lawbreaking by executive branch officials.  The bill was first introduced in 2007 in response to the Bush administration's radical abuse and expansion of the privilege, and was re-introduced earlier this year in response to the Obama administration's identical abuses.

The lead House sponsor of the bill is Rep. Jerry Nadler of New York, the Chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.  He's my guest today on Salon Radio to discuss why these limits are so imperative, how the Obama DOJ has been abusing the privilege, and why internal, voluntary DOJ safeguards are inadequate.  [ Read more ... ]

A court decision that reflects what type of country the U.S. is: Via Salon: Glenn Greenwald.

It's not often that an appellate court decision reflects so vividly what a country has become, but such is the case with yesterday's ruling by the Second Circuit Court of Appeals in Arar v. Ashcroft (.pdf).  Maher Arar is both a Canadian and Syrian citizen of Syrian descent.  A telecommunications engineer and graduate of Montreal's McGill University, he has lived in Canada since he's 17 years old.  In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was "rendered" -- despite his pleas that he would be tortured -- to Syria, to be interrogated and tortured.  He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured.  Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.  I've appended to the end of this post the graphic description from a dissenting judge of what was done to Arar while in American custody and then in Syria. [ Read more ... ]

Tucker Carlson and the right's perpetual self-victimhood: Via Salon: Glenn Greenwald.

(updated below)

The number one rule of American politics:  the greatest, most insatiable need of the standard conservative is to turn themselves into oppressed little victims.  In The Daily Beast today, Tucker Carlson devotes his entire column to complaining that Obama is "bullying" Fox News, absurdly claiming that the White House and liberals are trying "to use government power to muzzle opinions they don't agree with."  Needless to say, Carlson doesn't say a word about the endless -- and far worse -- attacks by the Bush White House on a whole array of media outlets, ones that went far beyond mere criticisms.  

But far more delusional is Carlson's central complaint:  that "the press decide[d] to go along with all of this" -- meaning Obama's criticisms of Fox.  He echoes the typical, woe-is-us conservative whine:  "Why is the press corps giving the White House a pass for behavior it would never have tolerated from other administrations? [ Read more ... ]

The joint Post/Obama defense of the Patriot Act and FISA: Via Salon: Glenn Greenwald.

(updated below - Update II)

The Washington Post's Anne Kornblut today produces an extreme piece of government-serving, stenographic "journalism," publishing a dubious administration press release masquerading as a lengthy news article on Obama's approach to Terrorism and civil liberties.  The Post depicts Obama as heavily and heroically engaged in disrupting the alleged Najibullah Zazi domestic terrorist plot and -- repeatedly highlighting that success -- claims "the White House has been charting a delicate course as it attempts to turn the page on Bush-era anti-terrorism policies," whereby "the Obama administration is increasingly confident that it has struck a balance between protecting civil liberties, honoring international law and safeguarding the country."  Here are all of Kornblut's cited sources for the article -- every last one of them -- in the order she cites them:

Obama aides pointed . . . administration officials said . . . a senior administration official said . . . officials said . . . a senior administration official said . . . senior Obama officials stressed . . . a senior administration official said . . . aides said . . . officials said . . . one senior administration official said. . . . one senior official said. . . . The official said . . . a senior administration official said . . . a senior administration official said . . . administration officials said . . . . a senior official said.

Not a single named person is cited, and there's not a syllable of quoted dissent in any of it.  Virtually every sentence in the long article does nothing but praise Obama and depict him as stalwartly safeguarding America's civil liberties (unlike Bush did) [ Read more ... ]

Salon Radio: Patriot Act and FISA reforms: Via Salon: Glenn Greenwald.

(updated below - Update II)

When Congress enacted the Patriot Act in the wake of the 9/11 attacks, it provided for a four-year expiration date for some of the more controversial provisions.  In 2005, when it was time for Congress to decide if those should be extended, the Bush administration insisted that none of those powers had been abused yet (like everything) they were critical to fighting Terrorism.  As a result, the Congress thus overwhelmingly voted to extend them for four more years, though this time they required the issuance of a report from the Inspector General of the Justice Depratment to determine if there had, in fact, been any abuses.  Unsurprisingly, the IG's Report that issued in 2007 and 2008 documented extreme abuse at the FBI with many of those powers.  Moreover, it was recently revealed that, far more often than not, federal law enforcement agencies use these powers (including the pernicious "sneak and peek" searches) in cases having nothing whatsoever to do with Terrorism. [ Read more ... ]

CIA Directors conclude CIA shouldn't be investigated for murder: Via Salon: Glenn Greenwald.

(updated below)

In a truly shocking development being treated as major news, seven former CIA Directors -- including all three who served under George W. Bush -- jointly concluded that the CIA should not be criminally investigated for torture deaths, and they have written a letter to President Obama (.pdf) expressing that view.  Do leaders of organizations in general ever believe that their organizations and its members should be criminally investigated and possibly prosecuted for acts carried out on behalf of that organization, and do CIA Directors specifically ever believe that about the CIA?  Has a CIA Director ever advocated that CIA agents be criminally investigated for illegal intelligence activities?

But what's most notable about this letter is that it is not addressed to the individual charged with making decisions about whether an individual should be prosecuted:  namely, the Attorney General of the U.S.  Instead, it is addressed to the President himself, and they "urge [him] to exercise [his] authority to reverse Attorney General's August 24 decision to re-open the criminal investigation of CIA interrogations."  What so-called "authority" are they talking about? [ Read more ... ]

Obama appointee previews the imminent preventive detention debate: Via Salon: Glenn Greenwald.

By all accounts, the White House is going to unveil its proposal for indefinite detention within the next four to eight weeks, and it has begun dispatching proponents of that scheme to lay the rhetorical groundwork.  In The Washington Post today, one of the proposal's architects -- Law Professor Robert Chesney, a member of Obama's Detention Policy Task Force -- showcased the trite and manipulative tactics that will be used by advocates of indefinite detention to win support for their radical program [anyone doubting that detention without trials is radical should recall that Obama's own White House counsel Greg Craig told Jane Mayer back in February that it's "hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law"; New York Times reporter William Glaberson wrote that "Obama's detention policy "would be a departure from the way this country sees itself"; Sen. Russ Feingold warned that it "violates basic American values," "is likely unconstitutional," and "is a hallmark of abusive systems that we have historically criticized around the world"; The New York Times' Bob Herbert said that "Americans should recoil as one against the idea of preventive detention"; and the Obama policy's most vigorous Congressional proponents are Tom Coburn and Lindsey Graham]. 

According to Chesney, though, the real extremists are those "on the left" who oppose preventive detention; those who believe that radical liberties such as criminal charges, trials and due process are necessary before the state can put someone in a cage for life; those who agree with Thomas Jefferson that trial by jury is "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." [ Read more ... ]

The difference between "legal" and "illegal": Via Salon: Glenn Greenwald.

(updated below - Update II)

In 2006, when the British police -- using (among other things) electronic surveillance conducted by both the U.S. and British Governments -- thwarted a Terrorist plot to blow up transcontinental airplanes over the Atlantic Ocean, right-wing polemicists everywhere claimed that this was vindication for the Bush/Cheney warrantless eavesdropping program.  But there was one rather enormous problem with that claim:  namely, the surveillance in question was entirely legal, conducted by obtaining warrants under the supervision of the FISA court where required by law.  The disruption of that Terrorist plot thus proved exactly the opposite of what was widely claimed:  namely, the extremely broad parameters of FISA easily allowed surveillance of dangerous Terrorists, and there was therefore no need to break the law as Bush officials did.  But because the distinction between "legal" and "illegal" is no longer recognized when it comes to government acts, that fact eluded virtually all discussions of the British airplane plot.  To prove that "legal surveillance is good" was to prove that "Bush's illegal eavesdropping was justified." [ Read more ... ]

Major ruling against Ashcroft highlights evils of preventive detention: Via Salon: Glenn Greenwald.

Yesterday -- in a very significant decision (.pdf) written by Bush-43-appointed federal judge Milan Smith and joined by a Reagan-appointed judge -- the Ninth Circuit Court of Appeals allowed a lawsuit to proceed that was brought against John Ashcroft for the illegal and unconstitutional detention of American Muslims.  The suit was brought by Abdullah al-Kidd, an American citizen of African-American descent who converted to Islam.  Al-Kidd was arrested, detained under abusive conditions, and then had his movements and freedoms severely restricted for sixteen months despite no evidence that he had done anything wrong. 

The suit arises out of a policy established by Ashcroft of abusing the "material witness" statute, which authorizes the detention of key witnesses [ Read more ... ]