Libertarian Vegan

In a move that even one ups the Department of Justice under Bush, Obama’s DOJ is arguing that under the PATRIOT Act, the federal government immune from suit for any illegal surveillance of Americans.

The case concerns Jewel v. NSA, litigation from the Electronic Frontier Foundation against the National Security Administration for warrantless wiretapping of countless Americans.  In the EFF’s blog, they say Obama’s DOJ makes two disturbing arguments in their attempt to dismiss the case.

First, the DOJ the favored argument of Bush - the state secrets privilege requires the court to dismiss the case with no further action.  Allowing the case to go on, they say, “would cause exceptionally grave harm to national security.”  Yet as a candidate, Obama argued passionately against this same abuse under Bush.

Secondly, Obama’s DOJ argued the U.S. government is completely immune from suit for any illegal spying, that they can never be sued for breaking federal privacy laws.

Bush’s DOJ argued the U.S. had “sovereign immunity” from suit for violation the FISA Act, but Obama’s DOJ has gone on to say they are also immune from the Wiretap Act and the Stored Communications Act as well.  For those keeping track, that would make the United States government immune from suit for any violations under all three key federal surveillance laws.

Is this the change all of you Obama fans voted for?  Personally, I happen to prefer a government that adheres to its own laws.  Silly, I know.

Source: Electronic Frontier Foundation - In Warrantless Wiretapping Case, Obama DOJ’s New Arguments Are Worse Than Bush’s April 7, 2009

A high level Spanish court has begun the process of opening a criminal investigation against 6 former Bush administration officials.  The focus is on whether the officials named violated international law by creating a legal framework to justify torture at Guantanamo Bay.

The 6 officials include:

* Alberto Gonzales, former attorney general

* John Yoo, former Justice Dept. lawyer, wrote secret opinions giving Bush authority to skirt the Geneva Conventions

* Douglas Feith, former undersecretary of Defense

* William Hayes II, former general counsel at Dept. of Defense

* Jay Bybee, Yoo’s former boss at the Justice Dept’s Office of Legal Counsel

* David Addington, chief of staff and legal advisor to VP Cheney

The case was sent to the prosecutor’s office for review by Baltasar Garzon, the investigative judge who ordered the arrest of Chilean dictator Augusto Pinochet.   Spain is able to claim jurisdiction as five of its citizens/residents were prisoners at Guantanamo Bay and said they were tortured there.

The 98 page complaint was filed by Spanish human rights group the Association of the Dignity of Prisoners.    The complaint is based on the Geneva Conventions and the 1984 Convention against Torture, which is binding on 145 countries.

Officials say it is “highly probable” that the case will go forward.

Way to go Spain.  Perhaps this will do something to ignite the so-called “Truth Commission” that Senator Leahy has pushed for.  It is absolutely incredible that Bush and his associates are free, instead of locked up for doing their best to destory the Constitution.

Where are all the Democrats who were supposedly so outraged by Bush’s actions?

Source: Boston Globe - Spain weights torture inquiry against 6 former Bush officials March 29, 2009

In a positive step toward more open and accountable government, Attorney General Eric Holder issued new Freedom of Information Act guidelines for federal agencies and departments.   The new guidelines advocate “a presumption of disclosure” and implement the Presidential Memorandum on the Freedom of Information Act, which President Obama signed his first day if office.

In a statement, Holder declared:

 By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change that will restore the public’s ability to access information in a timely manner. The American people have the right to information about their government’s activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency.

In stark contrast, an October 12, 2001 memo by then Attorney General John Ashcroft informed federal departments:

Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information…

Under these rules, secrecy reigned supreme.  Ashcroft said he would use the Justice Department to defend any denial of a FOIA request if it could be legally justified.   Holder’s new guidelines say an agency “should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.”

An open government is an accountable and responsible government.  The new FOIA guidelines are a great step in that direction.

Sources: USA Today - Holder rescinds Ashcroft-era FOIA guidelines
March 19, 2009

Ars Technica - New FOIA rules official - let the data flood begin March 20, 2009

Thursday saw the Senate Intelligence Committee agree to the terms of a review of the CIA’s treatment of terrorism detainees.

According to committee leaders, the probe will last one year and focus on CIA detention and interrogation of approximately 100 suspected al-Qaeda operatives that were held in secret prisons between 2002 and 2006.  It will include a review of harsh interrogation tactics, such as waterboarding, and if they actually produced the significant intelligence that the Bush administration claimed.

However, they did not signal how much of the review would be made public, if any.  It is not known if the committee will produce an unclassified report.  While there certainly are issues of national security involved, this is an easy way to pose as a thorough investigation while doing nothing.

CIA director Leon E. Panetta said he’d cooperate with the committee, but “What I will not support is an inquiry designed to punish those who acted in accord with guidance from the Department of Justice.”  So, even if they do produce findings, they aren’t supposed to act on them.  Well…then what’s the point?

It is always good for Mom and Dad to investigate and find out that Billy broke the window, but if they don’t act on that fact, why bother taking the time to find out who did what.

Meanwhile, we learn that an October 23, 2001 memo written by then-Deputy Assistant Atty. Gen. John Yoo authorized use of the military in the U.S.:

These military operations, taken as they may be on United States soil, and involving as they might American citizens, raise novel and difficult questions of constitutional law

and:

The current campaign against terrorism may require even broader exercises of federal power domestically.

This is flagrantly unconstitutional and Yoo should be on trial, along with the rest of the Bush administration.  Instead, he is a law professor at the University of California Berkeley.  Mom?  Dad?  Aren’t you paying attention to what little Johnny did?

Sources: Washington Post - Senate Panel reaches terms for probe of CIA detentions March 6, 2009

Chicago Tribune - Secret Bush administration legal memos released to public March 3, 2009

The Senate Judiciary Committee is continuing to push forward with plans to create a commission to investigate torture under the Bush Administration.  Committee Chair Pat Leahy (D-VT) said a hearing would be announced soon to study different commission plans.

While there have been attempts to uncover the true scope of U.S. torture since 9/11, this would be the first concrete actions by Congress.

Taking charge of the effort to create such a commission is Senator Sheldon Whitehouse (RI-D), who has special insight from sitting on both the Judiciary and Intelligence committees.  When asked if there was still a lot the public doesn’t know, he replied, “Stay on this. This is going to be big.”

Last week Maj. Gen. Tony Taguba voiced his support for a commission, joining 18 rights groups and others.  Taguba, known for conducting honest investigations into prisoner abuse at Abu Ghraib said such a commission must include a close analysis of claims from Bush Admin officials that abusive interrogations worked - “Some of those activities were actually not effective and those who thought so were in the academic or pristine settings of their offices.  What would they know?”

Meanwhile, Former President George W. Bush is all set to embark on a speaking tour next month.  He can be yours for the price of only $150,000 a speech.  However, if you happen to live close to Dallas, he will lower that to a mere $100,000.

Sources:  Salon - Senate will advance torture commission February 24, 2009

U.S. News & World Report - President Bush Embarks on First Speaking Tour - and He’s getting paid $150,000 a Pop February 25, 2009

Many civil liberties groups cheered the Obama Administration into office, and praised some of their early efforts.  However, Administration policies as of late have begun to garner praise from the circles that backed Bush’s War on Terror policies, including the Wall Street Journal’s editorial page.  Last week it stated that “it seems that the Bush administration’s antiterror architecture is gaining new legitimacy” with team Obama embracing team Bush’s strategies.

Recent confirmation hearings for Elena Kagan, nominee for solicitor general, and Attorney General Eric Holder Jr. saw the Obama nominees support a very broad interpretation of the “battlefield.”  Ms. Kagan said anyone suspected of helping to finance Al Qaeda should be held in indefinite detention without a trial, no matter where they are actually captured.

Meanwhile, CIA director nominee Leon Panetta said the Agency could continue its “extraordinary rendition” program, where agents seize terrorism suspects and take them to a third county, some of which are alleged to use torture, without extradition hearings.

The Obama Administration also embraced the Bush legal team’s argument that a lawsuit brought by former CIA detainees should be stopped because of the “state secrets” doctrine.    Two days after the appeals court hearing, a bipartisan group of lawmakers filed legislation to prohibit the use of the state-secrets doctrine to close an entire case, as opposed to just certain evidence.

Earlier this month, a British court refused to release info on the alleged torture of a U.S. held detainee, citing pressure from the U.S. In response, the Obama Administration sent the British government a thank-you note “for its continued commitment to protect sensitive national security information.”

So how far removed are we really from the Bush doctrine? It is true that it is still very early in his presidency, but the signs certainly are not promising.  Already we have seen his transparency goals tossed aside and now we are seeing civil liberty concerns tossed aside.  What’s next?

The only real candidates for change in the presidential race were Ron Paul and Dennis Kucinich. (They were also the only real anti-war candidates as well). This, Mr. Biden, is just “more of the same.”

 Source: New York Times - Obama’s War on Terror May Resemble Bush’s in Some Areas February 17, 2009

The American Civil Liberties Union (ACLU) called on the Justice Department last week to release secret Bush administration documents dealing with torture, surveillance and other controversial policies.

Last week the ACLU sent a letter to the Justice Department’s Office of Legal Consel (which provided legal advice to the Bush administration), saying, “the release of the memos would allow the public to better understand the legal basis for the Bush administration’s national security policies; to better understand the role that the OLC played in developing, justifying, and advocating those policies; and to participate more meaningfully in the ongoing debate about national security, civil liberties, and human rights.”

This is part of a fight for information they have been waging for five years.  Their efforts have not been in vain, and has resulted in a wealth of information being released.  For example, a Freedom of Information Act request in 2003 for records of abuse of detainees in United States custody abroad resulted in some 100,000 pages, which are now available in searchable format on the ACLU’s website.

For a very well documented list of Bush administration memos known to exist but still hidden from public view, see the chart on ProPublica by Dan Nguyen and Christopher Weaver.

Among the interesting titles are:

Fourth Amendment doesn’t apply to military operations abroad or in U.S

Options for interpreting the Geneva Conventions

President’s authority to detain U.S. citizens

and a number that are titled, Approval of CIA interrogation techniques.

After Obama’s declaration that he wanted federal agencies to err on the side of releasing information when it comes to FOIA requests , this would seem an opportune time for the Justice Department to start things off on the right foot.

Sources: ACLU - Office of Legal Counsel Memos

ProPublica - The Missing Memos

Former National Security Agency analyst Russell Tice has revealed that the NSA monitored journalists around the clock.  The agency, he said, “had access to all Americans’ communications - faxes, phone calls, and their computer communications.”  The Bush administration was especially interested in news organizations, reporters, and journalists.

Tice has been on MSNBC’s Countdown with Keith Olbermann twice this week to blow the whistle on the program.  The warrentless wiretapping program, he says, was more widespread then was ever reported.  

This builds on earlier reports that the NSA was intercepting international phone calls from journalists, military personnel, and civilian aid workers.  Details on this are covered in James Bamford’s newest book - The Shadow Factory.

Tice also revealed that the NSA combines information from phone wiretaps with data mining of credit cards and other financial information.  According to Tice, information on tens of thousands of Americans is stored in NSA databases - “This [information] could sit there for ten years and then potentially it marries up with something else and ten years from now they get put on a no-fly list and they, of course, won’t have a clue why.”  

However, most of the people targeted have no evident link to terrorism to justify data mining in the first place.  This seems to imply the idea of “pre-crime” and that all citizens are guilty until proved innocent.   A chilling thought indeed.  One of the reasons Tice sees for the program is “to have a chilling effect on potential whistleblowers in the government to make them realize that there’s a Big Brother out there that will get them if they step out of line.”

Hopefully we will learn more about these allegations, but it doesn’t seem the mainstream media cares.  I was not able to find one major newspaper that has covered the story.  Perhaps we have just accepted that we are no longer afforded the luxury of privacy, or…maybe their intimidation program works.  

Sources: Wired Blog - NSA Whistleblower: Wiretaps were combined with credit card records of U.S. citizens January 23, 2009

Civil Liberties Examiner - NSA Spied on american journalists for Bush administration January 22, 2009

This goes out to all those people who got misty eyed at Obama’s inauguration speech.  The Daily Show did a fantastic job with this one.  Even though they are clearly to the left, I love the Daily Show because they still have no problem pointing out nonsense such as this.

As for me, I proudly voted for Ron Paul.  And speaking of Mr. Paul, check him out on the House floor Wednesday as he interjects some logic and reasoning into the billion dollar bailout debacle.

This past week the Bush administration has found itself thwarted by the courts twice in efforts to keep records secret.

Late last Friday the administration fought back against a federal court order demanding important White House offices preserve all of their emails.  They responded by filing court papers saying a federal court has no authority to impose such a measure on the offices of President, VP , and National Security Council as they are subject to the Presidential Records Act.

Things began last Wednesday, when U.S. District Judge Henry Kennedy instructed that all White House employees surrender any emails from March 2003 to October 2005.  The Justice Department argued the order could only apply to White House offices covered under the Federal Records Act , which lead U.S. Magistrate Judge John Facciola (who is working with Kennedy) to declare emails must be surrendered from all White House offices.

The two private groups trying to force the White House to recover and archive emails are George Washington University’s National Security Archive and the  Citizens for Responsibility and Ethics in Washington .  Just this week the White House said it found some 14 million emails that were considered “missing.”  Just how many more are out there is up for debate.

Dick Cheney did win one victory over records.  Yesterday U.S. District Judge Colleen Kollar-Kotelly rejected the claim brought by historians and non-profits alleging Cheney intended to illegally destroy some of his official records. It was the end of a long legal battle over what discretion Cheney had in deciding what records of his would be preserved.  Although the court sided with him on that one point, Judge Kollar-Kotelly sided against him on nearly every other important issue.

The groups bringing the lawsuit included the American Historical Association , Organization of American Historians , and the Society of American Archivists .  Along with them were a number of professors, including Stanley I. Kutler, emeritus Professor of history and law at the Univeristy of Wisconsin Law School , who says he remains worried that “when the Archives goes to open Cheney’s papers, they are going to find empty boxes.” He said Cheney “spent most of his time making sure he left no footprints,” and asked, “Why did he fight this order so much if he did not have the intent to leave with these papers? I’m guessing that a lot of it will not be there.”

Justice Department lawyers argued Kutler and the other plaintiffs had no standing to sue, but the Judge said they had legally protected interests in Cheney’s records.  

The JD also argued no court could review the administration’s compliance with the Presidential Records Act (which came out of Watergate), but the Judge ruled otherwise.

The JD then argued that Cheney had sole discretion to decide how to comply with the Act.  Again, the Judge shot this down, declaring that the explicit language of the law requires that any records received or created by Cheney or his office be preserved as long as they were a part of “constitutional, statutory, or other official or ceremonial duties.”

This behavior by the administration is nonsense.  As the rightwing talking heads told us on their parade of the news networks, history will decide how we treat the presidency of George W. Bush, however, without records of what actually went on there is not objective way to do so.  Perhaps, like Bush, historians should be expected to just “go with their gut.”

This comes from the same administration that thought they should be able to freely intercept private phone calls and emails from their own citizens.  As they have told us, if you’ve got nothing to hide, you’ve got nothing to worry about.   

Sources: Washington Post - Ruling on Records Delivers a Win to Cheney January 20, 2009

Associated Press - White House opposed court order in e-mail case January 18, 2009