Tag Archives: Obama administration

MIA: the rule of law

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What is happening in this country?  Do you think that, in a nation that purports apply the law to all citizens equally, that a citizen seized by the government within the United States should have a right to have he claims of torture by US personnel at least heard in court? I certainly do.

But Jose Padilla apparently is not entitled to such a hearing. A Federal judge yesterday refused to allow his claims to be heard.

A federal judge on Thursday threw out a lawsuit brought by a man convicted of plotting terrorism and who alleged he was tortured at a Navy brig in South Carolina, saying a trial would create “an international spectacle.”

U.S. District Judge Richard Gergel ruled Jose Padilla, arrested as an enemy combatant, had no right to sue for constitutional violations and that the defendants in the case enjoyed qualified immunity.

Padilla claimed he was illegally detained as an enemy combatant and then held in a brig near Charleston where he was tortured. His lawsuit named government and brig officials, including Defense Secretary Robert Gates and former Defense Secretary Donald Rumsfeld.

So, because a trial could cause a “spectacle,” government officials and former government officials are granted immunity? What protection does any citizen have when governmental abuse cannot be taken to court?

Glenn Greenwald is on the case. Here is an excerpt, but his entire essay is a must read.

… our political officials are Too Important, and engaged in far Too Weighty Matters in Keeping Us Safe, to subject them to the annoyance of the rule of law.  It’s much more important to allow them to Fight The Terrorists without restraints than to bother them with claims that they broke the law and violated the rights guaranteed by the U.S. Constitution.  That’s the mentality that has resulted in full-scale immunity for both political and now private-sector elites in a whole slew of lawbreaking scandals — from Obama’s refusal to investigate Bush-era crimes or high-level Wall Street criminality to retroactive immunity for lawbreaking telecoms and legal protection for defrauding mortgage banks.  With very few exceptions — yesterday’s ruling, for instance, brushed aside a contrary decision from a Bush-43-appointed federal judge in California last year that refused to dismiss Padilla’s lawsuit against John Yoo for having authorized his torture (that decision is on appeal) – Executive Branch officials and the federal judiciary have conspired to ensure that the former are shielded from judicial scrutiny even for the most blatant and horrifying crimes.

There are legalistic questions involved in cases such as the one brought by Padilla — i.e., whether courts should allow monetary damages to be sought against government officials for Constitutional violations in the absence of a Congressional statute (a “Bivens” claim) and whether such officials should enjoy “qualified immunity” for their illegal acts where the illegality is unclear (as Rumsfeld absurdly alleged the torture of Padilla was) – but one key fact is not complex.  Not a single War on Terror detainee has been accorded any redress in American courts for the severe abuses to which they were subjected (including innocent people being detained for years, rendered and even tortured), and worse, no detainee has been allowed by courts even to have their claims heard. After the U.S. Government implemented a worldwide regime of torture, lawless detention, and other abuses, the doors of the American justice system have been slammed shut in the face of any and all victims seeking to have their rights vindicated or even their claims heard.   If an American citizen can’t even sue political officials who lawlessly imprison and torture him in his own country — if political leaders are vested with immunity from a claim of this type — what rational person can argue that the rule of law or the Constitution binds our government officials?

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Tech quote of the day

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This is actually a civil liberties quote and a hypocrisy quote, as well as a tech quote.

The United States continues to help people in oppressive Internet environments get around filters, stay one step ahead of the censors, the hackers and the thugs who beat them up or imprison them for what they say online

– Secretary of State Hillary Clinton, pledging support for free speech on the Internet.

Unfortunately, the Secretary of State fails to note that these rules apparently do not apply within the United States, where the Federal government tries to shut off Internet information it does not like.  The United States government has sought every means available to block information from Wikileaks, including pressuring those private businesses that provided services to Wikileaks. And civil liberties are under continuing attack in the States.

Clinton’s speech came a day after the House voted to extend to December 8 three controversial domestic spy provisions of the Patriot Act. And Customs officials seized 18 more internet domainswithout giving the pirate website owners a chance to challenge the forfeiture.

What’s more, the Obama administration on Thursday is expected to testify before a House subcommittee about the need to expand the Communications Assistance for Law Enforcement Act, which already requires telcos and internet access providers to have wiretapping capabilities. The FBI wants Congress to demand that same requirement for encrypted e-mail services like Blackberry, and also wants that for social networks and peer-to-peer messaging networks like Skype.

The secretary, meanwhile, was quick to point out that the United States government’s vocal and legal campaign against WikiLeaks is premised on a “theft” of government material.

“The fact that WikiLeaks used the internet is not the reason we criticized its actions,” Clinton said.

Hours after the speech, the Justice Department was in federal court trying to get Twitter to cough up records related to WikiLeaks founder Julian Assange and others.

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TSA update

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There have been two recent TSA stories that are worth a look.

First, Amy Sullivan (of Time Magazine) reports on her pat down by a (female) TSA worker, and the follow up comment from a male TSA agent. Very classy indeed.

A female agent led me to a table where she set my bags and then skeptically asked if I knew what the pat down involved. Yes, indeedy (thanks, Jeff Goldberg!) “Do you want to do this somewhere private?” No, thank you. The agent calmly explained what she was going to do before she performed each part of the procedure, and very briskly but thoroughly went through the pat-down. The whole thing was over in a matter of minutes and was a completely professional experience.

Or it was, until a male TSA agent walked behind us and hollered: “Hey, I thought she was mine! I was gonna do her!”

And that, buddy, is exactly why I’m opting out instead of standing in the see-through picture machine. Thanks for validating my choice.

The second story is even worse. A 58 year old woman was arrested at Burbank Airport merely for trying to protect her 93 year old mother from a TSA agent.

There they go again

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Our friends at the Department of Homeland Security have somewhat quietly introduced yet another assault on the civil liberties of American citizens. This time in involves not an assault on the person, but rather an assault on the person’s data.  Glenn Greenwald provides some startling information over at Salon.

For those who regularly write and read about civil liberties abuses, it’s sometimes easy to lose perspective of just how extreme and outrageous certain erosions are.  One becomes inured to them, and even severe incursions start to seem ordinary.  Such was the case, at least for me, with Homeland Security’s practice of detaining American citizens upon their re-entry into the country, and as part of that detention, literally seizing their electronic products — laptops, cellphones, Blackberries and the like — copying and storing the data, and keeping that property for months on end, sometimes never returning it.  Worse, all of this is done not only without a warrant, probable cause or any oversight, but even without reasonable suspicion that the person is involved in any crime.  It’s completely standard-less, arbitrary, and unconstrained.  There’s no law authorizing this power nor any judicial or Congressional body overseeing or regulating what DHS is doing.  And the citizens to whom this is done have no recourse — not even to have their property returned to them.

When you really think about it, it’s simply inconceivable that the U.S. Government gets away with doing this.  Seizing someone’s laptop, digging through it, recording it all, storing the data somewhere, and then distributing it to various agencies is about the most invasive, privacy-destroying measure imaginable.  A laptop and its equivalents reveal whom you talk to, what you say, what you read, what you write, what you view, what you think, and virtually everything else about your life.  It can — and often does — contain not only the most private and intimate information about you, but also information which the government is legally barred from accessing (attorney/client or clergy/penitent communications, private medical and psychiatric information and the like).  But these border seizures result in all of that being limitlessly invaded.  This is infinitely more invasive than the TSA patdowns that caused so much controversy just two months ago.  What kind of society allows government agents — without any cause — to seize all of that whenever they want, without limits on whom they can do this to, what they access, how they can use it:  even without anyone knowing what they’re doing?

With only one or two exceptions, neither the Democrats or the Republicans in Congress seem to be particularly interested in addressing this issue. It is one more significant erosion to the Fourth Amendment.  If reading the Constitution at the beginning of the House’s first business day this year was more than a grandstanding effort, why is no real effort at protecting liberty underway?

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TSA expansion

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Those who have argued that the intrusive techniques of the TSA can be justified because they only apply to those who “choose” to travel by air may (or may not) be surprised by the direction that the Department of Homeland Security may be taking in 2011.

The United States is stepping up security at “soft targets” like hotels and shopping malls, as well as trains and ports, as it counters the evolving Al-Qaeda threat, a top official said Sunday.

A year after a foiled plot to bomb a US-bound passenger plane, Homeland Security Secretary Janet Napolitano told CNN’s “State of the Union” program that other places and modes of transportation must now be scrutinized.

“We look at so-called soft targets — the hotels, shopping malls, for example — all of which we have reached out to in the past year and have done a fair amount of training for their own employees,” Napolitano said.

Since an attempted bombing on a packed Saturday night in Times Square in May, New York, for example, has installed hundreds of security cameras as part of a plan to triple the number of cameras to 3,000.

In September, the city activated some 500 new surveillance cameras at its three busiest subway stations — Times Square, Penn Station and Grand Central.

“The overall message is everything is objectively better than it was a year ago, particularly in the aviation environment. But we’re also looking at addressing other areas,” Napolitano said.

So, get ready for the application of TSA-style tactics to those who “choose” to go to a mall, or take a train, or stay at a hotel.  In effect, we are moving toward a situation where the only way to avoid searches without probable cause is to “choose” to stay at home. And one has to wonder how long we will be left alone there.

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Government trolls

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The folks over at the We Won’t Fly blog (currently down due to overwhelming traffic) have identified a number of profane and rude comments posted from an IP address controlled by the Federal government’s Department of Homeland Security. A Google cache version is here.

The blog covers the continuing compliants and outrages over current TSA so-called “security” practices.

The posts are incredible. For example:

Fuck you, Fuck all you cocksuckers, you wont change anything. ride the bus, TSA is here to stay there doing a great job keeping americia safe.

And keep in mind that such comments are paid for by taxpayers. The TSA should launch an investigation to determine who in their organization actually posted these trolls.

More from Raw Story.

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How we stay “secure”

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Tom Englehardt describes the US security state:

Of course, the U.S. national security state has quite a different formula for engendering safety in America: fight the Afghan war until hell freezes over; keep the odd base or two in Iraq; dig into the Persian Gulf region; send U.S. Special Operations troops into any country where a terrorist might possibly lurk; and make sure the drones aren’t far behind. In other words, reinforce our war state by ensuring that we’re eternally in a state of war, and then scare the hell out of Americans by repeatedly insisting that we’re in imminent danger, that shoe, underwear, and someday butt bombers will destroy our country, our lives, and our civilization. Insist that a single percent of risk is 1 percent too much when it comes to terror and American lives, and then demand that those who feel otherwise be dealt with punitively, if they won’t shut up.

(via Daring Fireball)

Obama administration actively fought torture probe

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One of the items revealed in the Wikileaks document dump is that the Obama administration (and several prominent Republicans) actively intervened in Spain to block a probe of American torture policy under the Bush Administration as it was applied to several Spanish citizens. Shameful and amazing.

Diplomats routinely monitor and report on legal cases that affect national interests. These cables show that the U.S. embassy in Madrid had far exceeded this mandate, however, and was actually successfully steering the course of criminal investigations, the selection of judges, and the conduct of prosecutors. Their disclosure has created deep concern about the independence of judges in Spain and the manipulation of the entire criminal justice system by a foreign power.

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“Looking forward” on torture

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David Cole, writing in the New York Review of Books, explains why Obama’s effort to “look forward” and not backward on the torture committed by the Bush administration, will fail and that a full accounting, at a minimum, is necessary to purge the damage done by this country’s official policy of torture under Bush.

The torturers—President Bush, Vice President Cheney, Attorney General John Ashcroft, Director of Central Intelligence George Tenet, and Justice Department lawyers John Yoo and Jay Bybee, to name just a few—are not held responsible. They remain free to travel the lecture circuit and publish books bragging about their crimes. It is the families of victims of the embassy bombings who must pay the price—in foregone justice—for the crimes the Bush administration perpetrated in its “war on terror.”

It turns out that looking forward, not back, will never resolve the torture legacy. Until we own up to and provide a reckoning for the moral and criminal wrongs committed by officials at the very highest levels of the former administration, the fact that we tortured will continue to fester—and cause problems for its successor. The prevailing view in Washington seems to be that we should move on, but such wrongs cannot be forgotten.

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Bush tax cuts ≠ economic growth

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David Leonhardt in today’s New York Times:

Why should we believe that extending the Bush tax cuts will provide a big lift to growth?

Those tax cuts passed in 2001 amid big promises about what they would do for the economy. What followed? The decade with the slowest average annual growth since World War II. Amazingly, that statement is true even if you forget about the Great Recession and simply look at 2001-7.

The competition for slowest growth is not even close, either. Growth from 2001 to 2007 averaged 2.39 percent a year (and growth from 2001 through the third quarter of 2010 averaged 1.66 percent). The decade with the second-worst showing for growth was 1971 to 1980 — the dreaded 1970s — but it still had 3.21 percent average growth.

By all means, extend tax cuts for the middle class. But if we are serious about deficit reduction, we cannot afford to extend the Bush tax cuts for the wealthy.

A full body scan for the Internet

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In addition to the porno-scanners and groping “pat-downs” at the airports, there is yet another assault on our traditional right to privacy. The government was the ability, in effect, to fully body scan the Internet. They want to be able to wiretap everything on the Internet and they want to require technology and Internet companies to make such a scan possible.

Robert S. Mueller III, the director of the Federal Bureau of Investigation, traveled to Silicon Valley on Tuesday to meet with top executives of several technology firms about a proposal to make it easier to wiretap Internet users.

Mr. Mueller and the F.B.I.’s general counsel, Valerie Caproni, were scheduled to meet with senior managers of several major companies, including Google and Facebook, according to several people familiar with the discussions. How Mr. Mueller’s proposal was received was not clear.

“I can confirm that F.B.I. Director Robert Mueller is visiting Facebook during his trip to Silicon Valley,” said Andrew Noyes, Facebook’s public policy manager. Michael Kortan, an F.B.I. spokesman, acknowledged the meetings but did not elaborate.

This is yet another attack on liberty in response to terrorism. And, if adopted, it will be yet another win for the terrorist who seem to be achieving their goal of spreading fear and reducing freedom in our country.

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Harassment outside the airport

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So the “don’t touch my junk” guy is now a target of a Federal investigation. Shrewd and careful use of tax dollars there. And a total waste of money.

Michael J. Aguilar, chief of the TSA office in San Diego, called a news conference at the airport Monday afternoon to announce the probe. He said the investigation could lead to prosecution and civil penalties of up to $11,000.“Let me paraphrase our new administrator, John Pistole,” said Aguilar. “It really is irresponsible to encourage anyone to opt out of a technology that is there in place specifically to protect the public.”

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The only good that might come of this is a test case regarding the ability of the Feds to follow a passenger who declines screening outside an airport to levy a penalty.

The only good thing that will come out of this is a perfect test case. Can you imagine a jury convicting a person who, upon learning at the gate, that his genitals would be groped, refused, and then was escorted out of the gate area by police officers, would be subjected to a fine? I can’t wait to see how the 9th Circuit rules on this one. I guess the Federal position is that if you refuse a grope you will be probed.

And since when it is irresponsible to decline to volunteer to a patdown when you have done nothing wrong and demonstrated no threat to anyone?

Good luck with that. John Tyner is a hero.

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Continuing attacks on privacy

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Now the Obama Administration is getting ready to propose that no new networking services can be deployed unless and until the Federal government is ready to wiretap the services.

Does this sound like a joke. It isn’t.

Law enforcement and counterterrorism officials, citing lapses in compliance with surveillance orders, are pushing to overhaul a federal law that requires phone and broadband carriers to ensure that their networks can be wiretapped, federal officials say.

The officials say tougher legislation is needed because some telecommunications companies in recent years have begun new services and made system upgrades that create technical obstacles to surveillance. They want to increase legal incentives and penalties aimed at pushing carriers like Verizon, AT&T, and Comcast to ensure that any network changes will not disrupt their ability to conduct wiretaps.

Not only is this an attack on user privacy, it also is potentially crippling to the ability of US companies to research and deploy new products and services in an industry where our design and research are one of our biggest economic strengths.  Three cheers for this example of the non-change brought to us by the Obama administration.

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States rights

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So a so-called liberal Democrat President, that I voted for, now causes me to rise up in defense of states’ rights.

That Democrat is President Obama. And the cause of my anger is the latest statement from the Obama Justice Department.

Attorney General Eric Holder says the federal government will enforce its marijuana laws in California even if voters next month make the state the first in the nation to legalize the drug.

The Justice Department strongly opposes California’s Proposition 19 and remains firmly committed to enforcing the federal Controlled Substances Act in all states, Holder wrote in a letter to former chiefs of the U.S. Drug Enforcement Administration. The Associated Press obtained a copy of the letter, dated Wednesday.

Cutting to the bottom line, why is the Obama administration drawing lines in the sand over a state’s possible decision to allow the use of marijuana, while at the same time its Justice Department cannot bring itself to bring war criminals to justice?

I agree with this analysis:

If the voters of California want marijuana to be legal within their borders, why should the Federal Government be able to say otherwise? As a practical matter, of course, there is a difference between the California Criminal Code and Title 18 of the United States Code, but that only tells us what is, not what should be. Where in the Constitution, for example, is the Federal Government even authorized to make laws dealing with possession of any substance within the borders of a state where that substance is legal?

After all, when prohibition was enacted at the Federal level it was by means of an constitutional amendment, as was its repeal.

The good news is that the Feds can cause some disruption, but have nowhere near the resources to actually affect much other than a few unlucky miscreants.

In 2008, according to the FBI’s numbers, there were about 848,000 marijuana arrests in the United States. The feds accounted (PDF) for less than 1 percent of them. The DEA has about 5,500 special agents nationwide, compared to nearly 70,000 local police officers in California. It certainly can make trouble, but it simply does not have the resources to bust a significant percentage of the state’s marijuana offenders now, let alone after every adult is allowed to grow his own pot. If the DEA could not block access to medical marijuana under Bush or Obama, what chance will it have after the drug is legal for recreational purposes as well?

Nonetheless, this Federal position breads a disrespect for the law that could have significant long term adverse consequences.

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