Politico: Legal Left cools toward Obama

Legal left cools toward Obama
By: Josh Gerstein
April 13, 2009
http://dyn.politico.com/printstory.cfm?uuid=A198ED30-18FE-70B2-A89F0D7D4E8ACBEE

It’s not just Paul Krugman anymore.

A growing chorus on the legal left is cooling toward President Barack Obama as a result of recent actions by the Justice Department vigorously defending the Bush administration in what it termed the war on terror.

“Obama Position on Illegal Spying: Worse Than Bush,” a large graphic declared over the weekend on the home page of a respected group advocating freedom on the Internet, Electronic Frontier Foundation.

Obama has been pilloried by a liberal TV icon who was one of President George W. Bush’s most vociferous critics, MSNBC’s Keith Olbermann.

“During his run for the presidency, Barack Obama, who taught constitutional law at the University of Chicago, argued strongly against the Bush administration’s use of executive authority, including its self-justification, its rationalization of the warrantless wiretapping of American citizens,” Olbermann said on his show last week. “That was then. This is now. ... Welcome to change you cannot believe in — or sue over.”

Obama is also under withering attack from an attorney who was one of the most widely read critics of Bush’s legal strategy in the war on terror, Glenn Greenwald. He recently blasted Obama administration moves as “extremist” and “bizarre.”

“Reading this brief from the Obama DOJ is so striking — and more than a little depressing — given how indistinguishable it is from everything that poured out of the Bush DOJ regarding secrecy powers in order to evade all legal accountability,” he wrote on Salon last week, before calling his fellow civil libertarians to rise up. “It is simply inexcusable for those who spent the last several years screaming when the Bush administration did exactly this to remain silent now or, worse, to search for excuses to justify this behavior,” he said.

The new wave of criticism was triggered by two actions in recent weeks by the Justice Department.
First, earlier this month, the department presented an expansive series of arguments urging a federal court in San Francisco to throw out a lawsuit over warrantless surveillance first filed against Bush. The department’s brief not only asserted the state secrets privilege, which has long infuriated civil libertarians, but also made a sweeping assertion that Americans have no rights to challenge surveillance that violates the law unless the information is improperly released.
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Then, on Friday, the department issued similarly broad arguments against a court ruling giving legal rights to some detainees held by the U.S. military at Bagram Air Base in Afghanistan. The government motion said the decision could aid “enemies of the United States” by allowing them to use “the U.S. court system as a tactical weapon.” The filing led to a New York Times editorial Monday sharply criticizing Obama for positioning Bagram as “the next Guantanamo.”

Obama administration officials insist that critics are jumping the gun. A Justice Department official said some of the recent arguments are essentially intended to buy time for a review Obama has ordered of procedures and policies regarding detainees.

The official, who asked not to be identified, said Obama deserves credit for announcing the closure of Guantanamo and banning the use of torture. The aide also pointed to Attorney General Eric Holder’s statement to CBS News last week that he soon expects to reverse the Bush administration assertion of the state secrets privilege in at least one case.




But liberal attorneys, who set up groups such as “Habeas Lawyers for Obama” during the campaign, complain that Obama is walking away from statements he made as a senator and presidential candidate rebuking the Bush administration for putting prisoners beyond the reach of the law.

“Obama has said no place should be out of reach of the law. Now, he’s done precisely that,” said Jonathan Turley, a law professor at George Washington University. “You have this administration routinely stating principles as a precursor to violating those very same principles.”

Several organizers of Habeas Lawyers for Obama declined to be quoted or interviewed by POLITICO.

However, one who spoke but asked not to be named because he regularly deals with top Obama officials, said he understands the growing skepticism. “I can understand people’s concern and frustration and I am concerned myself,” the lawyer said. “The tone of the Bagram filing was more strident than I certainly would have hoped.”

The Obama supporter said he is confident that Obama’s senior legal team at the Justice Department and the White House will translate in time to vastly different policies.

“There just a world of difference between the people who are handling those legal areas and those who were before,” the attorney said, though he added that he thought the Obama legal team was “absolutely overwhelmed” by the amount of work it faces.

Still, critics such as Greenwald insist that the recent Obama administration acts on secrets and Bagram need to be publicly denounced.

“It would require a virtually pathological level of tribal loyalty and monumental intellectual dishonesty not to object just as vehemently as we watch the Obama DOJ repeatedly invoke these very same theories and, in this instance, actually invent a new one that not even the Bush administration espoused,” he wrote.

“When Bush asserted the power to abduct people and put them in prison for life with no charges, he was a Constitution-hating tyrant. When Obama does it, he’s being really careful and cautious and doing it to protect us for really good reasons even if we can’t know what they are and he won’t tell us,” Greenwald wrote, mockingly summarizing the arguments of Obama defenders.

Holder has set a speech Wednesday night at West Point, which would be a logical forum to lay out the administration's views in more detail. Aides would not discuss specifics of his speech but said it would address "rule of law" issues.

Still, the anger could intensify Thursday when more Bush administration memos are expected to be released in connection with an ACLU lawsuit. An earlier release of similar memos put the focus on perceived transgressions of the Bush administration. Now, activists may hone in instead on how the Obama White House is following in Bush’s legal footsteps.

© 2009 Capitol News Company, LLC

Glenn Greenwald et al: Obama as bad as (or in some cases worse than) Bush when it comes to invoking state secrets to block criminal activity

Glenn Greenwald
April 9, 2009 19:32 EDT
TPM: "Obama Mimics Bush on State Secrets"

[Updated below - Update II - Update III (Sen. Feingold's statement) - Update IV - Update V]

I wasn't able to post today, but TalkingPointsMemo has done an excellent job in advancing the story of the Obama DOJ's inexcusable embrace of some of the most radical Bush/Cheney secrecy doctrines. First, here is the top headline at TPM right now:


The first TPM post then says this:

Working the Dark Side

Why is Obama following Bush's lead on state secrets?

That post, in turn, links to this excellent and comprehensive article on the controversy by TPM's Zachary Roth, which reports this:

Is the Obama administration mimicking its predecessor on issues of secrecy and the war on terror? . . .

Coming on the heels of the two other recent cases in which the new administration has asserted the state secrets privilege, the motion sparked outrage among civil libertarians and many progressive commentators. Salon's Glenn Greenwald wrote that the move "demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used." MSNBC's Keith Olbermann called it "deja vu all over again". An online petition -- "Tell Obama: Stop blocking court review of illegal wiretapping" -- soon appeared.

Not having Greenwald's training in constitutional law (and perhaps lacking Olbermann's all-conquering self-confidence), we wanted to get a sense from a few independent experts as to how to assess the administration's position on the case. Does it represent a continuation of the Bushies' obsession with putting secrecy and executive power above basic constitutional rights? Is it a sweeping power grab by the executive branch, that sets set a broad and dangerous precedent for future cases by asserting that the government has the right to get lawsuits dismissed merely by claiming that state secrets are at stake, without giving judges any discretion whatsoever?

In a word, yes.

That's rather definitive (my legal analysis of the Obama position was set forth here, on Monday). The TPM article then quotes numerous experts lambasting the Obama administration, including -- most amazingly -- Ken Gude, a national security law expert of the Center for American Progress (CAP). That's John Podesta's CAP, one of the most pro-Obama organizations in the country (Podesta was Obama's transition chief).

Speaking to Marc Ambinder, Gude himself actually defended (or at least excused) Obama's first invocation of the state secrets privilege in the Jeppesen/rendition case back in February at a time when most civil libertarians were furious, insisting back then that the new Obama DOJ officials "deserve the benefit of the doubt" because they had been in office too short of a time to warrant any judgments being made. But so extreme and inexcusable are Obama's actions here that, now, even Gude pronounced Obama's position "disappointing" and described himself as "frustrated" and "uncomfortable" with the DOJ's actions. Moreover, to TPM, Gude "confirmed that the Obama-ites were taking the same position as the Bushies on state secrets questions" and added: ""There's going to be people who are very unhappy, and justifiably so."

This controversy is clearly growing, as well it should. These radical theories were not ancillary to the liberal critique of Bush/Cheney lawlessness but central to it. Last night on CBS News, Katie Couric repeatedly asked Eric Holder about this issue, and -- as The Washington Independent's Daphne Evitar noted -- Holder was forced to say that he has reviewed the cases where the Obama administration invoked "state secrets" and agreed with virtually everything the Bush administration did in those cases with regard to that doctrine, making clear (as Evitar put it) "that the Obama administration [with the possible exception of one unnamed case] is unlikely to depart dramatically from the Bush administration’s position on the use of the state secrets privilege."

The Bush administration's use of the "state secrets" privilege was the linchpin of its efforts to shield its criminality from judicial review and -- as Democrats, progressives and other Bush critics repeatedly argued -- was one of the principal prongs of its lawlessness and radicalism. Yet here is the Obama administration doing exactly the same thing and now admitting that they intend to continue to do so. Relatedly, Jim White digs up some election year Obama quotes to underscore what a betrayal of Obama's constant commitments these actions are.

Finally, Keith Olbermann continued his excellent and rather tenacious coverage of this issue last night by asking Nancy Pelosi about the Obama position on state secrets and sovereign immunity and he extracted a muddled though still unambiguous decree that she found it objectionable and would engage in efforts to limit Obama's asserted powers (we'll see how true that ends up being). Last night, Olbermann also had on EFF's Kevin Bankston, who -- along with Olbermann -- excoriated Obama for not merely embracing, but surpassing, some of the worst Bush/Cheney abuses on secrecy and legal immunity for lawbreaking. On Monday afternoon, I asked the office of Russ Feingold -- who was endlessly vocal on these matters when Bush was President -- why he has been silent on this matter and whether he had any comment, and I've heard nothing back. In fairness, though, there is one impressive ally for the Obama DOJ: the highly prestigious and very well-regarded blog, RedState, which vigorously supports their position here.

Ultimately, the responsibility to check executive power and secrecy abuses by the President lies with the Congress. In February, numerous members of both the Senate and House -- including Feingold and Arlen Specter -- re-introduced legislation that would substantially limit the President's ability to assert "state secrets" as a means of blocking judicial review of his conduct. When Bush was President, that legislation attracted numerous Democratic co-sponsors -- including Obama's Vice President Joe Biden and his Secretary of State, Hillary Clinton. Clearly, and quite regrettably, that law is needed as much now as it was in 2006 and 2007. Accountability Now, hopefully in conjunction with others, should have a campaign very soon to help bring this about as well as impose limits on Obama's recklessly broad assertions of legal immunity.

* * * * *

One brief correction: in yesterday's post on my Cato report on drug policy, I provided the wrong link to a piece reporting on that event by Stop the Drug War's Scott Morgan. The correct link is here.



UPDATE: In addition to Roth's TPM article, also very worth reading is this analysis from The Washington Post's Dan Froomkin, who says there "there is something utterly un-American" about Obama's position. As Roth concludes: "That looks like a pretty broad consensus in opposition to the Obama administration's position. And it's the opposite of change we can believe in."



UPDATE II: Just in case anyone had any doubts about whether Obama himself personally approves of what his DOJ is doing, Robert Gibbs dispelled those at today's Press Briefing (h/t CarolynC and Sam Stein):

Q. Last Friday, the Justice Department invoked the state secrets privilege in asking a judge to dismiss a civil suit filed against the National Security Administration regarding its domestic surveillance program. And in its brief, the Justice Department argued that Americans have no right to sue the government for alleged illegal surveillance.

Does the President support the Justice Department's positions in that case?

MR. GIBBS: Yes, absolutely. It's the -- absolutely does. Obviously, these are programs that have been debated and discussed, but the President does support that viewpoint.

That was followed by this amazing exchange:

Q. Before he was elected, the President said that the Bush administration had abused the state secrets privilege. Has he changed his mind?

MR. GIBBS: No. I mean, obviously, we're dealing with some suits, and the President will -- and the Justice Department will make determinations based on protecting our national security.

Q. So he still thinks that the Bush administration abused the state secrets privilege?

MR. GIBBS: Yes.

Given that Obama is doing exactly what Bush did in this area, Gibbs' claim that Obama "still thinks that the Bush administration abused the state secrets privilege" must be one of the most incoherent and intellectually dishonest claims to come from the White House since the Inauguration -- either that, or Obama believes that Bush abused the privilege and that he, Obama, is also doing so.



UPDATE III: Last night (Thursday), Sen. Feingold's office emailed me a statement from the Senator in which he said: "I am troubled that once again the Obama administration has decided to invoke the state secrets privilege in a case challenging the previous administration’s alleged misconduct." He added that "it is clear that there is an urgent need for legislation to give better guidance to the courts on how to handle assertions of the state secrets privilege," and that he is now working "to pass the State Secrets Protection Act [which I wrote about here] as soon as possible." Feingold's full statement is here.



UPDATE IV: ABC News' Jake Tapper has a good write-up on this controversy and Obama's history of violating his own commitments when it comes to surveillance, accountability and secrecy powers, with this headline: "On 'State Secrets,' Meet Barack W. Obama."



UPDATE V: Jake Tapper has more, here, on the still-growing controversy. I have requests in to numerous key Democratic members of Congress who vehemently opposed the Bush version of the state secrets privilege -- including Senate Judiciary Committee Chairman Pat Leahy and House Judiciary Committee Chairman John Conyers, as well as Sen. Sheldon Whitehouse -- for comment on what the Obama DOJ is doing. I will post those as I receive them. There is simply no legitimate excuse for members of Congress who objected to Bush's secrecy and executive power abuses to remain silent (or, worse, to offer excuses) when Obama does exactly the same thing.

-- Glenn Greenwald

Xymphora: Zionists work to destroy international law

The planned destruction of international law
Monday, April 06, 2009
http://xymphora.blogspot.com/
George Bisharat on the ongoing Israeli plan to weaken international law in order to allow for the atrocities necessary to build Anti-Assimilation-Land:
"Since 2001, Israeli military lawyers have pushed to re-classify military operations in the West Bank and Gaza Strip from the law enforcement model mandated by the law of occupation to one of armed conflict. Under the former, soldiers of an occupying army must arrest, rather than kill, opponents, and generally must use the minimum force necessary to quell disturbances.

While in armed conflict, a military is still constrained by the laws of war - including the duty to distinguish between combatants and civilians, and the duty to avoid attacks causing disproportionate harm to civilian persons or objects - the standard permits far greater uses of force.

Israel pressed the shift to justify its assassinations of Palestinians in the Occupied Territories, which clearly violated settled international law. Israel had practiced "targeted killings" since the 1970s - always denying that it did so - but had recently stepped up their frequency, by spectacular means (such as air strikes) that rendered denial futile.

President Bill Clinton charged the 2001 Mitchell Committee with investigating the causes of the second Palestinian uprising and recommending how to restore calm in the region. Israeli lawyers pleaded their case to the committee for armed conflict. The committee responded by criticizing the blanket application of the model to the uprising, but did not repudiate it altogether.

Today, most observers - including Amnesty International - tacitly accept Israel's framing of the conflict in Gaza as an armed conflict, as their criticism of Israel's actions in terms of the duties of distinction and the principle of proportionality betrays. This shift, if accepted, would encourage occupiers to follow Israel's lead, externalizing military control while shedding all responsibilities to occupied populations."

and (the money quote by Daniel Reisner; it will presumably be used at his war crimes trial in the post-sea-bathing period):
"Israel's campaign to rewrite international law to its advantage is deliberate and knowing. As the former head of Israel's 20-lawyer International Law Division in the Military Advocate General's office, Daniel Reisner, recently stated: "If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries ... International law progresses through violations. We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal molds. Eight years later, it is in the center of the bounds of legitimacy."

In the Gaza fighting, Israel has again tried to transform international law through violations. For example, its military lawyers authorized the bombing of a police cadet graduation ceremony, killing at least 63 young Palestinian men. Under international law, such deliberate killings of civilian police are war crimes. Yet Israel treats all employees of the Hamas-led government in the Gaza Strip as terrorists, and thus combatants. Secretaries, court clerks, housing officials, judges - all were, in Israeli eyes, legitimate targets for liquidation.

Israeli jurists also instructed military commanders that any Palestinian who failed to evacuate a building or area after warnings of an impending bombardment was a "voluntary human shield" and thus a participant in combat, subject to lawful attack. One method of warning employed by Israeli gunners, dubbed "knocking on the roof," was to fire first at a building's corner, then, a few minutes later, to strike more structurally vulnerable points. To imagine that Gazan civilians - penned into the tiny Gaza Strip by Israeli troops, and surrounded by the chaos of battle - understood this signal is fanciful at best."

There are many, many reasons why we should single out Israel and its JIZ supporters for their crimes, but the intentional destruction of all the norms of international law - a destruction which will deny protection to civilians all over the world until the norms are reconstructed, a difficult process which will take decades and will be ongoing long after the last Israeli Jew is sea bathing - would by itself be sufficient to damn them all for eternity. The difference between Israel and its disgusting supporters and, say, some slaughterers in Central Africa is that the African slaughterers:
do not have a master plan to to destroy international law in order to allow their slaughtering; and
could not destroy international law if they wanted to.

The Human Rights Industrial Complex is completely Jew-dominated, a dominance that would not be a problem but for the fact that human rights protections are constantly perverted for the purposes of building Anti-Assimilation-Land. Note the dance known as the Human Rights Watch (or Amnesty International) shuffle, where an inconsequential Palestinian or Lebanese reaction to terrible provocation - as little as a Palestinian child throwing a stone in the general direction of a group of illegally-stationed Israeli soldiers brutally manning an illegal Israeli checkpoint - is regarded as the moral equivalent of a terrible Israeli counterattack, perhaps the bombing of an entire household. The shuffler then throws up his hands and says everybody committed atrocities, so who is to judge who is right and who is wrong. The new UN investigation will follow this route: it will not absolve Israel, but will hide Zionist atrocities under this fraudulent moral equivalence. Another in the long list of the sins of Zionism: destroying the credibility of all official advocates for human rights.