154.3 - Clown Award: District Court Judge Rosemary Collyer

Clown Award: District Court Judge Rosemary Collyer

Now it's time for our other regular feature, the Clown Award, given as always for meritorious stupidity.

This week, the big red nose goes to US District Court Judge Rosemary Collyer.

A suit had been filed in federal district court against Obama administration officials over the killings of three US citizens in Yemen in a drone strike in 2011.

The White House, not surprisingly, argued that this is a political matter, a policy question, and so is best left to Congress and the executive branch.

Judge Collyer said the case raises serious constitutional questions and is not easy to answer. But despite that, she granted the Obama administration's motion to dismiss the suit.

Now, it can be, and certainly has been, argued that addressing purely political questions usually involves the just the legislative and executive branches of the federal government, and the courts generally stay out of such questions unless there is some kind of impasse over conflicting authorities or a dispute over the proper interpretation of a law.

However, the fact is that under our system as it has developed, dealing with constitutional questions is a basic function of the federal judiciary.

Despite that, Collyer's attitude is that yes, this case raises serious constitutional questions but ya know what? The heck with it. The White House doesn't want to talk about it, so screw the Constitution, screw the court system, screw my responsibilities.

District Court Judge Rosemary Collyer - who, by the way, is also on the Foreign Intelligence Surveillance Court and isn't it good to know we have such aggressive protectors of our Constitutional rights on that court - Rosemary Collyer, you are a clown.

Sources:
https://en.wikipedia.org/wiki/Rosemary_M._Collyer
http://www.huffingtonpost.com/2014/04/04/obama-drone-strikes_n_5093782.html

154.2 - Domestic spying: How they get away with it

Domestic spying: How they get away with it

One of the persistent questions about the government's domestic spying is, in some form, how do they do it; that is, how do they get away with it, how, in the face of the public's instinctive reaction against such intrusions into our privacy, can they still manage to keep on with it, scandal after scandal, revelation after revelation.

Well, let me give you some idea how.

First, a reminder of a definition: Phone metadata is all the information about a phone call except the actual content. It's what number called what number, from where to where, when, and for how long. Every technical detail of the call.

Okay. In January, months and months after Edward Snowden revealed documents proving that the US government was sucking up the metadata on tens of millions of Americans' phone calls without either warrant or reason to suspect criminal activity, Barack Obama, the Amazing Mr. O, announced that the government would "limit" collection of such phone metadata.

On March 27, the plan to do that finally appeared, one that claimed the program was coming to an end.

Now, remember, for all those months and months, we were repeatedly, loudly, insistently told that collecting this data is vital to national security. That the government had to do this, had to be allowed to do it, it couldn't not do it, because that would be putting the nation at risk, we would face more 9/11s, the terrorists would run free, and what's more, Edward Snowden is either a traitor or a Russian agent for telling us about it. Now, after all those months and months, it became "Aahh, we really didn't need to do this after all."

Under the White House proposal, which has to be approved by Congress, the records of metadata would not be held by the government but by the phone companies, with the government able to query them only with court approval.

The program would also be modified so that the government can only query within two “hops” of a selection term, that is, a particular phone number, rather than three as now.

Okay, there are already a number of red flags here. First, the records are still there, still being collected. The only difference is who holds them. And the government can still demand to see them. I'm not sure why that's supposed to make us feel better.

Second, the difference between warrantless search and search via a court-issued warrant is in this case little more than semantics if it's even that. Such warrants would be issued by the secretive Foreign Intelligence Surveillance Court, or FISC, created by the Foreign Intelligence Surveillance Act, or FISA, in 1978. Another reminder: FISA was passed in response to revelations of earlier violations of privacy and rights by the spooks. This is by no means the first time we have dealt with this kind of thing.

So now consider the record of the FISC, In the period 1979-2012, that court was presented by the feds with 33,949 applications for warrants. Of those, only 504, a mere 1.5%, were even modified. Only 11, or 0.03%, were rejected and four of those were later modified and accepted. The idea that this court acts as a guarantor of our rights, a protector of our privacy, is ludicrous.

Another thing is the "hops." These are the degrees of separation from the original number. Under the plan, NSA can query the metadata of an individual if the court approves - and then the metadata of all of that person’s contacts, and then in turn the metadata of all of theirs. You know about the idea of "six degrees of separation," the idea that any person can be connected to any other person in no more than six hops. A 2011 study found that when you include online social media, the average number of degrees of separation between any two people in the world is not six, but roughly 4.74.

The point is, limiting the search to two hops means nothing, since by then you are already hitting the limits of actually useful information. Go beyond and you start to drown in data. You're no longer looking for a needle in a haystack, you have trouble even finding the right haystack.

So put bluntly, these so-called changes mean essentially nothing and despite the claim the program is "ending" it's really being continued, just in a slightly-different form. This is long-standing practice among the spooks and their enablers: J. Edgar Hoover used to do it all the time. Every time he was found having the FBI do something it shouldn't and was told to stop and to destroy the relevant files, we would just rename the program, refile the files, and declare to all and sundry that the old program no longer existed.

So at least give the White House credit for this: They learned from the best.

But that's not all. Because, as I said, this is how they do it.

An examination just last week of the White House proposal by Mark Hosenball and Alina Selyukh of Reuters found that the "more limited" program may well require phone companies to collect and maintain even more information about our phone calls than they already do, and do it for the specific purpose of having those records available to government spies.

In fact, the telcoms may now be collecting only 25-33 percent of the total US metadata they are authorized to collect. One reason is the popularity of flat-rate programs: Because the companies don't need to keep track of your calls so they know which are toll calls for which you would be charged, they don't collect the metadata on all calls because they don't need it.

But under the White House’s plan, telecoms “would be compelled by court order to provide technical assistance to ensure that the records can be queried and that results are transmitted to the government in a usable format and in a timely manner.” In other words, the spooks would have to be able to get the metadata they want, which means the phone companies have to have it in order for them to get it.

In other words, this "reform" of the government's spying on us not only does not in any effective way limit the government's ability to spy on us, it would enable them to spy on even more of us - while at the same time claiming the program is being put to an end.

And that, my friends, is how they do it.

Sources:
http://www.whitehouse.gov/the-press-office/2014/03/27/fact-sheet-administration-s-proposal-ending-section-215-bulk-telephony-m
http://rt.com/usa/white-house-nsa-proposal-633/
http://www.nytimes.com/2011/11/22/technology/between-you-and-me-4-74-degrees.html?_r=1&
https://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act
http://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court
http://epic.org/privacy/wiretap/stats/fisa_stats.html
https://en.wikipedia.org/wiki/Six_degrees_of_separation
http://theburglary.com/
http://news.yahoo.com/obamas-nsa-overhaul-may-require-phone-carriers-store-222010492--sector.html
http://rt.com/usa/nsa-overhaul-telecom-metadata-425/

128.8 - More on NSA spying

More on NSA spying

Update: An unusually (for me) large number of hits on this. Anyone care to leave a comment to tell me what lead you here?

We'll wrap up the week with some more stuff about 1984 coming a few decades too late. Last week I ran down a roughly chronological list of revelations about the massive collection of personal information - the massive spying - engaged in by the US government, including spying on its own citizens. I said this week I was going to touch on some of the cheap defenses and lame excuses of the spying that have been offered by government officials. Which I will, right after I note another, new, revelation:

Under Obama, the NSA has been collecting massive amounts of data on social connections among some Americans to help “discover and track” connections between “intelligence targets overseas and people in the United States” according to a report in The New York Times.

Since 2008, the spooks have had the power to analyze Americans' phone and e-mail data for tracking such alleged "connections." But since 2010, under the Obama gang, they have been able to combine that communications data with, the Times said, "material from public, commercial and other sources, including bank codes, insurance information, Facebook profiles, passenger manifests, voter registration rolls and GPS location information, as well as property records and unspecified tax data” in order to identify Americans’ “associates, their locations at certain times, their traveling companions, and other personal information,” including such things as religious or political affiliations or one's regular calls to a psychiatrist’s office or late-night messages to an extramarital partner.

Use of this “enrichment” data is apparently unrestricted.

As the ACLU said,

This report confirms what whistleblowers have been saying for years: the NSA has been monitoring virtually every aspect of Americans’ lives - their communications, their associations, even their locations.

And for what? Why, to protect us! Why else?

That's why at a recent hearing before the Senate Intelligence Committee, NSA Director Keith Alexander - who has had himself built a command center he called the Information Dominance Center and which was based on the deck of the starship Enterprise and no, I'm not kidding; even the doors go "whoosh" - said the NSA wants to collect more phone records. Asked about the revelations of tens of millions of phone records being collected by his agency and if there was an upper limit to how much information he wanted, Alexander said there is no upper limit and that, quoting, "I believe it is in the nation's best interest to put all the phone records into a lockbox that we can search when the nation needs to do it."

First, doofus, it can't be a "lockbox" if you can go through it anytime you want and second, let's get this straight: It is not and would not be "the nation" going through our records, it would be you, you and the rest of your creeps getting off on the power of being able to know stuff about everybody else. You are not the nation. And your apparent inability to recognize that, yours and others right up to and including the Amazing Mr. O himself, is exactly why you represent a danger to democratic freedoms, a greater danger than any terrorist or terrorist group.

And by the way, don't give me any crap about all your "dedicated professionals." It's not their dedication I doubt and at least for most of them, it's not their professionalism I question. It's the very nature of the enterprise in which they are engaged, an enterprise which strikes at the very heart of the personal freedom and the personal privacy that are vital to the core foundation of any people who strive to be and remain free.

But instead of officials proposing actual changes even merely to limit the abuses, without even claiming to stop them or even focus on them, we get a sort of good-cop-bad-cop public relations campaign to lull us into complacency, distract us from the issue at hand, and terrify us into accepting even more spying.

The lulling came from the White House. Understand first that there are two main pieces of legislation involved here: Section 215 of the so-called Patriot Act, which I have always called the Traitor Act because of its impact on civil liberties, which is used to justify the phone snooping, and Section 702 of the Foreign Intelligence Surveillance Act, or FISA, which is the supposed justification for the email and other internet spying on Americans.

Well, Obama supposedly responded to public outrage, supposedly recognized the need for changes to curtail the feds' ability to spy on Americans. He called for changes in the law and said he would create a panel of independent outsiders to examine NSA practices because, he said, “It’s not enough for me, as president, to have confidence in these programs. The American people need to have confidence in them as well.”

Feel all better?

Point the one: He called for changes in the Traitor Act - Section 215, about the phones - but never mentioned FISA, never mentioned Section 702, about the emails and the rest of the online stuff. And he has yet to say what specific changes he wants in the Traitor Act.

And the "independent outsiders?" It turns out that four of the five members have worked for Democratic administrations and the fifth leads a committee looking to build Obama's presidential library.

The AP reports that the review panel has effectively been operating as an arm of the Office of the Director of National Intelligence, that is, of James Clapper:

The panel's advisers work in offices on loan from the DNI [Director of National Intelligence]. Interview requests and press statements are coordinated through the DNI's press office. Its final report will be submitted for White House approval before the public can read it.

What's more, Clapper, apparently on his own authority, exempted the panel from the federal law that requires federal committees to conduct their business and their meetings openly, with the result that its meetings have been closed to the public even though participants say nothing classified was discussed.

Not enough? The consider the president’s memorandum establishing the panel. Quoting:

The Review Group will assess whether, in light of advancements in communications technologies, the U.S. employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust.

Notice that there is nothing in there, not a phrase, not a word about, not a passing pro forma mention of, preventing abuses and protecting the public's privacy and rights.

While the White House lulled, Congress - specifically, the Senate Intelligence Committee - carried on with the distracting. Recently, in what journalist Kevin Gosztola, who has followed this from the very beginning, accurately called "a sham" of a hearing on NSA spying in which the six witnesses consisted of four Obama administration officials and two so-called experts who are both rabid supporters of the spying, almost all of the members turned their attention to what they claimed are the real problems: the media and Edward Snowden.

Chair Dianne Feinstein, the biggest apologist for the national security state in the whole Congress, whose role model for "oversight" is Sgt. Schultz from "Hogan's Heroes," said the whole thing was the fault of the media and Snowden. Ranking GOPper Saxby Chambliss said Snowden will have blood on hands and should be prosecuted. GOPper Dan Coats spent so much time ranting about the media that he didn't have time to ask a single question.

Senators Tom Udall and Ron Wyden tried to do their jobs as senators in questioning the witnesses, but there was very little that could be done in the six minutes each of them had.

And then there was the ever-present, the ever-faithful, the happily-no-longer-as-effective but still-present, fear-mongering.

The day before that Senate hearing, NSA Director Alexander - the man with the starship Enterprise command center with the doors that go whoosh - said in a speech at the National Press Club that if Congress hampers the spooks' ability to gather whatever and however much information they want without even the inconvenience of warrants, well, then, the type of terrorist attack launched at a mall in Nairobi, Kenya by the group Al-Shabaab a week and a-half ago, an attack that left at least 67 dead and as of today, 39 still missing, that that kind of attack is going to come to the US!

Yes, he actually said that, in essentially so many words: The actual quote was:

If you take those [surveillance powers] away, think about the last week and what will happen in the future. If you think it’s bad now, wait until you get some of those things that happened in Nairobi.

Dianne Feinstein, by the way, didn't miss her cue, obediently echoing Alexander's bug-eyed invocation of the Nairobi slaughter in her opening remarks at the next day's hearing.

I'm running out of time and there's still more to cover, which will have to wait until next week, as will coverage of the latest report on global climate change just released by the Intergovernmental Panel on Climate Change.

So I'll just say this: An outfit called MotherboardTV got hold of a manual that includes a list of hundreds of key words the spooks use to screen and monitor emails. The group has set up a site - nsa.motherboard.tv - which generates sentences that are entirely innocent but contain as many of these key words as possible.

A few of my favorite examples, with the keywords in italics, are:

- Working titles for my grindcore band: Blister Agent, Spillover, Agro Terror, Brute Forcing, Temblor.
- I have a bacterial infection. Food poisoning. A toxic plume made an evacuation from my bowels.
- Erosion of US hegemony is a disaster. We ignored the warnings and outsourced an avalanche of jobs to China.
- Character assassination isn't funny. Call Edna a toxic bitch one more time, and find yourself a new bridge game.

Sources:
http://dissenter.firedoglake.com/2013/09/28/obama-allowed-continued-expansion-of-nsa-program-to-collect-data-on-some-americans-social-networks/
https://www.aclu.org/
http://www.foreignpolicy.com/articles/2013/09/08/the_cowboy_of_the_nsa_keith_alexander?wp_login_redirect=0
http://www.huffingtonpost.com/2013/09/26/keith-alexander-nsa_n_3998071.html
http://www.mcclatchydc.com/2013/08/14/199404/obamas-surveillance-revisions.html#.UkXB2z-Pzpc
http://www.businessweek.com/articles/2013-08-13/obama-puts-spies-in-charge-of-investigating-spies
http://bigstory.ap.org/article/close-ties-between-white-house-nsa-spying-review
http://www.huffingtonpost.com/2013/09/26/senators-nsa-media_n_3998229.html?ref=topbar
http://dissenter.firedoglake.com/2013/09/26/nsa-director-supports-putting-all-americans-phone-records-in-lockbox/
http://www.theguardian.com/commentisfree/2013/sep/27/ron-wyden-nsa-systematically-deceived
https://www.youtube.com/watch?v=34ag4nkSh7Q
http://thehill.com/homenews/administration/324747-top-spook-asks-public-for-backup
http://www.independent.co.uk/news/world/africa/kenya-mall-attack-sixth-briton-confirmed-dead-after-nairobi-westgate-shopping-centre-massacre-8846266.html
http://www.scribd.com/doc/150435756/How-the-DHS-Monitors-You-on-the-Internet#page=21
http://nsa.motherboard.tv/

It really should be called the TRAITOR Act

Well, the expiring provisions of the grossly-misnamed PATRIOT Act have been renewed for another four years. The bill to do so was rammed through both houses of Congress after an agreement among the leaders of both parties of both houses to get the bill passed "with as little debate as possible."

That because, as Glenn Greenwald pointed out,

we wouldn't want to have any messy, unpleasant democratic debates over "the expanded power the law gives to the government."

The three provisions, actually two from the TRAITOR Act and one from FISA, were these:

1. Allow for roving wiretaps. Instead of wiretapping a particular phone or surveilling a particular email account, you in essence wiretap the person, following them from phone to phone and account to account. The big risk here is that officials often are not certain of the identity of the person and what phones/accounts they use, so they could easily wind up going after people who have done nothing wrong, are not suspected of having done anything wrong, and may have no connection to the actual target beyond, perhaps, a similar email address.

2. Warrants requiring the production of "any tangible thing" - any record, any whatever - deemed to be "relevant" to an intelligence or terrorism investigation. There is no requirement that the target of the warrant be suspected of any wrongdoing, only that they are in some way connected to the suspect. What's more, the materials demanded are "presumptively relevant" under the law - which means, in essence, the judge facing a request for such a warrant can't reject it. It can be modified, but there appears no way to reject it outright (which appears to make the whole "warrant" business a sham).

3. The so-called "lone wolf" provision. Traditionally, to be subject to surveillance you had to have some connection to some foreign group, power, or government. Not any more, although it's kind of hard to see how you can be involved in "international" terrorism in that case.

Facing a deadline of last Friday before the provisions expired, the fear-mongers pulled out all the stops:

FBI Director Robert Mueller and Director of National Intelligence James Clapper warned of "serious national security consequences" if there was not an immediate renewal of all three provisions.

Diane Feinstein declared that opponents wanted to strip away provision "necessary to protect the United States."

And Senate Majority Leader Harry Reek blustered that "we would be giving terrorists the opportunity to plot attacks against our country, undetected," adding that opponents were "threatening to take away the best tools we have for stopping them."

In other words, the message was Pass it now! Pass it now! Otherwise you're leaving us NAKED AGAINST THE TERRORISTS! OMG! OMG! OMG!

At the same time, soothing words were spread around by the feds, who insisted that law enforcement had used the three provisions “sparingly.” Roving wiretaps were issued only about 20 times a year, the warrants for business records less than 40 times a year on average, and the "lone wolf" authority had never been used.

Exactly how the nation will instantly go down in flames if powers used "sparingly" - or not at all - are not renewed was, of course, unexplained. As was why we are supposed to believe without question official claims that there has been no "improper use" of the powers when the DOJ's own Inspector General found just last fall that the FBI had been improperly spying on political activists.

There are two footnotes to this, one being that there are some different legal interpretations of just how extensive the government's authority is under these domestic spying statutes. What's the government's own interpretation of the extent of its powers? We don't know: It's classified. That's right: The Obama administration, the one with the candidate who denounced some of these same provisions only to embrace them when he got his hands on the levers of power, the one that pledged the most transparent administration ever, won't even tell us just how extensive it thinks its powers to spy on us are.

The other footnote is that the bill was not signed by Barack Obama, who was out of the country. It was signed by autopen. Yes, it's quite legal when done at the president's direction - but having it signed by a machine just seems both symbolic and appropriate.

A little more bad news: this, too

Senate Majority Leader Harry Reek and House Speaker John Boner have agreed on a plan to ram through a four-year extension of expiring provisions of the grossly-misnamed Patriot Act, which should be called the Traitor Act for its effects on privacy and civil liberties.

The idea is to pass the extension with as little debate as possible to avoid a protracted and familiar argument over the expanded power the law gives to the government.

Yes, indeed, as Glenn Greenwald says,

we wouldn't want to have any messy, unpleasant democratic debates over "the expanded power the law gives to the government."

That would be uncouth. Not at all in keeping with our serious bipartisan "Whatever you say, Mr. Prez" seriousness. And the fact that in February, Harry Reid promised a full week of debate on the renewal? Ancient history, dude! Get over it!

Under the deal, two sections of the so-called USA Patriot Act and a third provision from a related intelligence law would be extended, without any changes, until June 1, 2015.

Failing that renewal, they would expire on Friday. This would mark the second time, the first being just over a year ago, that the provisions have been extended without changes with the approval of President Barack Obama - even though Senator Barack Obama had spoken and voted against them.

One of the three provisions at issue, the one not from the Traitor Act itself, has to do with so-called "lone wolves." Under the Foreign Intelligence Surveillance Act, or FISA, doing electronic surveillance on a person involved them being an agent of a foreign government or group. This provision eliminated that requirement - which means that a FISA warrant, both more wide-reaching and in practice even easier to get than a warrant in a criminal investigation, could be directed against any individual foreigner, even if they have no connection to any foreign government or group. This is to be extended even though the White House admitted in March that the provision has not been used a single time in the nearly 10 years it has been in force, which certainly should call its necessity into question.

One of the two Traitor Act provisions involved provides for roving wiretaps, where it is not the phone that is tapped, but, if you will, the person. This allows in practice for "John Doe" warrants where the identity of the person is unknown and agents

can get a warrant that doesn't specify a facility, or a phone number or an account. It doesn't actually name the target. It might describe the target as a username on the Web. ...

[U]nder the Patriot Act, too much discretion is ceded to the investigator. They might say, there's probable cause to think KSM9@yahoo should be under surveillance. But without even knowing who that person is, the investigator gets to decide what other accounts and online identities to wiretap without going back to the court and explaining why there's probable cause that these other accounts are terror-related.

The other Traitor Act provision is Section 215, relating to "tangible things."

It allows investigators to get an order from the FISA court permitting them to compel the production of any tangible thing that is relevant to an investigation.

What's a "tangible thing?" It's anything. Pretty much literally. It's any record or anything else, any actual "thing," that is connected to a suspect in an intelligence investigation or someone in contact with them, even if that other person is not suspected of any wrongdoing whatsoever. What's more, under the law any such thing is considered to be "presumptively relevant," which means that the judge cannot deny such a request, which of course makes the whole "warrant" business an utter sham.

Both those latter provisions, the ones relating to "lone wolves" and "tangible things," have seen serious abuses.

That is what is thought worthy by our Congressional leaders from both parties to be renewed "with at little debate as possible."

Reid formally unveiled the agreement by filing a cloture petition Thursday afternoon that will force a vote on Monday to bring the legislation to the Senate floor on Monday. Assuming the Senate passes the legislation extending the Patriot Act provisions, the House would vote shortly afterwards....

There is some opposition in both Houses but quite frankly I do not expect it will be enough, especially in the face of arguments like Eric Holder's that the killing of Osama bin Laden could produce retaliation so we need these powers more than ever. In other words, when bin Laden was alive, we needed them because he was alive; now that he's dead, we need them even more because he's dead. And you know damn well most of Congress will go "Yeah, sure, that makes sense."

Why the fuck don't they just have a bonfire of copies of the Constitution and be done with it?

What's old is new

Congress is in the process of holding hearings on the possible renewal of three provisions of the TRAITOR Act, the intrusive, "we'll search whatever we damn well feel like so suck on this, privacy advocates" legislation hurriedly passed in the fear-mongering-filled weeks following 9/11.

Those three provisions will expire on December 31 unless renewed - and, true to the George Bush form it has established on such matters, the Obama crowd wants all three "important authorities" renewed.

The three provisions in question:

- The FBI can get a warrant to secretly obtain a wide variety of information, including business and financial records, computer information, or even library records. The only requirement is that the information is thought to be "relevant" to a terrorism investigation; a belief that the person or organizations whose records are sought are engaging in illegal activity is not necessary. Not only is the target not informed of the search, it is illegal for the institutions from which the information is obtained to tell the target it happened.

- The FBI can obtain an order for a so-called "roving" wiretap, allowing them to follow someone from phone to phone. That is, it is the person who is wiretapped, not the phone.

- The government can spy on suspected "lone wolves," foreigners suspected of some terrorism desire or some such thing but who have no apparent connection to any known terrorist group or foreign government.

There has been some low-level pushback by some liberals and moderates in Congress. Not much at least so far, but enough to register. During the hearings before the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, both Subcommittee Chair Jerry Nadler and Judiciary Committee Chair John Conyers questioned the need for the provisions; Conyers even compared Todd Hinnen, testifying for the White House, to people in Shrub's DOJ.

Another, related issue that has caused a stir is that of so-called "National Security Letters," or NSLs. These are essentially extra-judicial warrants that can be issued on their own authority by low-level FBI supervisors demanding access to a wide variety of records and requiring that the recipient of such a letter never even mention having been served with it. Nadler and Senate Judiciary Committee Chair Pat Leahy want to put some limits (or, more exactly, what they fantasize are limits) on NSLs, such as requiring the FBI to state why the information is "relevant to an authorized investigation" and allowing for disclosure of the searches - sometimes. Leahy also wants the NSL powers to sunset after four more years. Considering that he also wants the expiring power extended another four years, we can see how well the idea of "sunsetting" works in practice.

I first griped about NSLs - and I just cannot see how these things can possibly be Constitutional - in January 2004. If you want to know why I think they are so bad, check this post from November 2005:

Summary: If you have any contact, even casual, even unknowing, with a suspect in any investigation involving "international terrorism or clandestine intelligence activities," even if you are not suspected of wrongdoing, any FBI field supervisor can on their own authority, without any oversight by a prosecutor, grand jury, or judge - or even any after-the-fact review by the Justice Department or Congress - issue a national security letter which can be used to demand information on

where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.

Employment records, credit records, banking records, phone records, travel records, and more, it's all there for the taking.

Russ Feingold (D-Sanity) and nine co-sponsors have introduced a bill (S.1686) to undo some of the damage done by the TRAITOR Act, including NSLs. It wouldn't ban them but would at least put some judicial oversight in place. In addition, as described to Democracy Now! by Lisa Graves, executive director of the Center for Media & Democracy, it would reverse some of the egregious portions of last year's changes to FISA. Specifically, it would among other things

prohibit the bulk collection of Americans’ international emails and telephone calls and would require more specificity in obtaining international communications. That provision would also repeal the telecom immunity provisions that passed last year, at the urging of AT&T and others, that basically stripped the rights of citizens to pursue cases in courts against phone companies that engaged in warrantless wiretapping at the behest of the Bush administration.

Right now, the sponsors other than Feingold are Sens. Daniel Akaka, Jeff Bingaman, Dick Durbin, Bob Menendez, Jeff Merkley, Bernie Sanders, Jon Tester, Tom Udall, and Ron Wyden. If your Senator is not on that list, you might want to ask them why.

Important Footnote: In testimony, the White House admitted that the "lone wolf" powers had never been used but still urged they be extended. And Hinnen testified that

[a]t the time of the USA Patriot Act, there was concern that the FBI would exploit the broad scope of the business records authority to collect sensitive personal information on constitutionally protected activities, such as the use of public libraries. This simply has not occurred.

Okay, a question: How the hell can these provisions be "important authorities" if you haven't had to use them once in eight years? And I want an actual answer to that question, not a string of invoking-the-dark-side "what ifs."

This, however, is why this footnote is important: Hinnen is lying through his goddamned teeth.

The Connecticut Four were four librarians who were served with an NSL in July 2005 but who refused to comply and staged a year-long legal battle to lift the gag order imposed as part of it, a gag order so complete that they couldn't even be named in publicly-available court documents or acknowledge that they were the people involved. It was a fight they won in May 2006. During the time the case was going on, Lisa Graves said, the Shrub gang insisted that concerns about going after libraries were unfounded. And now, even with the case on record, Hinnen sits in front of a House committee and insists "This simply has not occurred."

The Bush White House was lying then and the Obama White House is lying now.

A Second, Quick Footnote: The ACLU released extended, detailed testimony. It's available in .pdf format at this link.

I'll keep saying it

Last month, the Obama administration "fully embraced the Bush administration's shameful effort to immunize torturers and their enablers from any legal consequences for their actions," in the words of Ben Wizner, a staff attorney with the ACLU National Security Project.

In April, a panel the Ninth Circuit Court of Appeals had reversed a District Court decision that threw out an ACLU-filed suit against a Boeing subsidiary for its role in Bushco's illegal "extraordinary rendition" program. The District Court acted after the Bush gang intervened to invoke the bogus "state secrets" privilege but the Appeals Court ruled that the privilege must be invoked about particular evidence, not the entire suit.

The Obama crowd has responded by filing for a rehearing before the full court, asking the panel's decision be overturned and the Bush cabal's position on "state secrets" be upheld.

This happened just about the same time that Obama promised to “use every legal and administrative remedy” to keep additional torture photographs hidden from the public.

Also last month, Congress passed a $106 billion war supplemental appropriation which also included some funds for the World Bank and the International Monetary Fund (IMF). But that latter cash came with some restrictions, some good, some bad - the former assuming that anything done through those bastions of "the hell with the people, pay the banks first" thinking can be good.

Obama, in a statement made as he signed the bill, said that he would ignore the conditions.

They would "interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with international organizations and foreign governments, or by requiring consultation with the Congress prior to such negotiations or discussions," Obama said in the signing statement.

On Thursday, the House slapped him upside the head, voting 429-2 to deny funding for any agreement that doesn't meet the conditions set out in the supplemental.

But the point here is the signing statement itself. Signing statements were traditionally used by presidents to explain how they would interpret certain sections of a law. Sometimes it was as simple as laying out the administration's understanding of what would be a "reasonable" effort in some direction; sometimes it was more complex. But it was really only during the Shrub regime that it became commonplace for a president to simply declare that certain parts of a law did not apply to him and that he could, on his own authority and without recourse to the courts, declare himself free to ignore them. And here was Barack Obama doing exactly the same thing.

Well, it's another month, and the beat goes on.

The Obama administration said Tuesday it could continue to imprison non-U.S. citizens indefinitely even if they have been acquitted of terrorism charges by a U.S. military commission.

Jeh Johnson, the Defense Department's chief lawyer, told the Senate Armed Services Committee that releasing a detainee who has been tried and found not guilty was a policy decision that officials would make based on their estimate of whether the prisoner posed a future threat.

Like the Bush administration, the Obama administration argues that the legal basis for indefinite detention of aliens it considers dangerous is separate from war-crimes prosecutions. Officials say that the laws of war allow indefinite detention to prevent aliens from committing warlike acts in future, while prosecution by military commission aims to punish them for war crimes committed in the past.

Which instead of justifying the policy actually illustrates just how extreme it is. "We can hold anyone we want forever and nobody can do squat about it - not because of what they've done, not because of what they were planning, not even because of what we think they were planning, but because of what we think they might plan in the future. We don't need proof, we don't even need evidence and we sure as hell don't have to show anybody any. Because we are all-seeing, we are all-knowing, and our judgments are not to be questioned by such trifles as laws or courts or constitutions."

Rep. Jerrold Nadler ... questioned the administration's plan to allot prisoners to federal courts, military commissions or indefinite detention.

"What bothers me is that they seem to be saying, 'Some people we have good enough evidence against, so we'll give them a fair trial. Some people the evidence is not so good, so we'll give them a less fair trial. We'll give them just enough due process to ensure a conviction because we know they're guilty. That's not a fair trial, that's a show trial," Mr. Nadler said.

Seems to me I just said that somewhere.

Also this week, the Obama crowd

threatened to veto the funding bill for US intelligence agencies because the House included a provision that would increase the number of members who receive briefings on highly secretive covert operations

from the so-called "Gang of 8" - the chairs and ranking minority members of the House and Senate Intelligence Committees, the Speaker and Minority Leader of the House of Representatives, and the majority and minority leaders of the Senate - to include all members of the Intelligence Committees. It would also allow Congress, not the president, to restrict the briefings in extraordinary circumstances.

The Obama administration, like all previous administrations of the modern era, believe that the president, and only the president, has the power to determine what constitutes national security information and, even more vitally, what safeguards ought to be in place to protect the information.

There's that key, recurring phrase: "only the president."

Finally, TPMMuckraker makes an interesting observation about Karl Rove's recent testimony to the House Judiciary Committee. He had been cited for contempt of Congress for refusing to testify before the committee on the grounds of "executive privilege," which the Shrub gang claimed applied not only to White House policy staff but to all White House staff, including former staff, and continued to apply even after the administration left office. That is, they claimed in essence that no one at the White House, no one at all, now or in the past, could be made to appear before Congress without the president's express permission. More bluntly, the executive branch was not subject to Congressional oversight except to the degree it chose to allow it.

A district court ruled against Rove, but the matter was on appeal when an agreement was reached among the committee, the White House, and Bush lawyers.

The [Bush] White House's foot-dragging may have inflicted some measure of political damage. But in terms of the legal repercussions, by coming to a deal while the case was still pending in an appeals court, the Bushies have largely succeeded in one of their goals: ensuring that no clear precedent has been established limiting the president's power to claim executive privilege in such cases. And the Obama White House's role in helping to secure the deal for Rove's testimony suggests that's an outcome they wanted too.

That is, the Obama gang wants to be able to make similar spurious claims of "executive privilege" whenever it wants to avoid facing Congress.

In each case, over and over again, regular as clockwork, the Obama administration has adopted and run with Bush administration policies that concentrate power in the president and give the office extreme, even dictatorial, powers to conceal information, ignore laws, arrest without proof, imprison without charge, and govern without oversight as soon as the magic words "foreign policy" or "national security" are invoked. And over and over again I have argued precisely that: that Obama was adopting Bush policies.

At what point are some people going to give it up? At what point are people going to stop saying "they haven't had time to re-evaluate" or "the case came up too fast" or "give them time?" At what point are people going to stop using the excuse of being "focused on health care" or "focused on the economy?" When are people give up the fantasy that this is either the result of a settling-in period or a hidden brilliant political strategy that we are just too inferior to comprehend?

Obama has his 20-percenters, just like Bush did: that certain portion that will believe and support him no matter what he does, as first became clear when what should have been a clear red flag - his craven flip-flop on FISA last year - provoked instead a flood of excuses. But for the rest, when are you going to face the fact that all this is not some kind of temporary aberration, not a pile of exceptions, that in the areas of presidential power and national security, this is Barack Obama? This is who he is, what he thinks, what he wants, what he intends?

Seriously, what more will it take?

Footnote: So Obama claims he has the authority to ignore a law if it "interferes" with his "constitutional authority to conduct foreign relations." So why does he also claim that he can't issue an order suspending enforcement of Don't Ask, Don't Tell on the grounds that the policy arises from an act of Congress - even though no one appears to dispute his "constitutional authority" as CIC to issue such an order?

I told you so

Updated Dammit, dammit, dammit, dammit, dammit! I told you so! I did, I did, I did! You know I did! And more than once!

The day after the election, I told you so:

I strongly suspect that in a while a lot of people are going to be very disappointed in Barack Obama. ...

I believe that those who insist that on matters such as FISA he will be different as president than he was as a senator are just kidding themselves. In fact, I suspect that the reason he flip-flopped on FISA is that he started contemplating having those powers himself.

And now it seems even those sort of powers are not enough.

Jewel v. NSA is a suit filed last fall by the Electronic Frontier Foundation (EFF) on behalf of five customers of AT&T (acting on behalf of all AT&T customers) challenging as illegal and unconstitutional the program of dragnet communications surveillance conducted by the National Security Agency. With the EFF's agreement, the initial government response was delayed until April. Now it has come and it's a doozy.

In a motion filed on Friday, April 3rd, the Obama Dept. of Justice (DOJ) demanded that the entire lawsuit be dismissed based on both the Bush administration's claim that a "state secrets" privilege bars any lawsuits against the executive branch for illegal spying, as well as a novel "sovereign immunity" claim that the Patriot Act bars any lawsuits of any kind for illegal government surveillance, unless there was "willful disclosure" of the illegally intercepted communications.

That latter argument is a stunner, an entirely new argument that goes clearly beyond any CYA claim advanced by the Shrub gang. While they had claimed "sovereign immunity" against suits under FISA, even they never insisted that the administration had such immunity against suits about illegal surveillance under any law.

But that is exactly what the Obama DOJ is now claiming. They are saying that if the government illegally spies on you, illegally intercepts any or all of your personal communications, even if the the government knows its spying is illegal, even if you know the government illegally spied on you, even if everyone knows the government illegally spied on you, even if you can undeniably prove the government illegally spied on you, there's not a single goddam thing you can do about it unless the government "willfully disclosed" the information it illegally gathered.

In a statement, the EFF called the argument "deeply troubling," "pernicious," "radical," and "utterly unprecedented."

No one - not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration - has ever interpreted the law this way. ...

Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

Again, the gulf between Candidate Obama and President Obama is striking. As a candidate, Obama ran promising a new era of government transparency and accountability, an end to the Bush DOJ's radical theories of executive power, and reform of the PATRIOT Act. But, this week, Obama's own Department Of Justice has argued that, under the PATRIOT Act, the government shall be entirely unaccountable for surveilling Americans in violation of its own laws.

That sentiment was echoed by Prof. Jonathan Turley, who called the Obama team's claim "breathtaking" and said it represented

yet another break with its campaign promise to fight to restore civil liberties and privacy.... It appears the “yes we can” means “yes we can do most anything that we want” when it comes to unlawful programs.

(Prof. Turley notes that this is not the first time Obama's DOJ has gone beyond Bush's: In February, it threatened to unilaterally "withdraw" a document from a court case when it lost a ruling related to it, something of which Turley said he'd never heard.)

Glenn Greenwald, who said in his commentary on the filing that it's "hard to overstate how extremist [it] is," makes two significant points. One is that this is the initial government response to this suit. That is, this is not the Obama administration just carrying over a Bush administration argument (not that that would be an excuse), flying on autopilot as it were, this is the Obama administration's own, considered, position. There is no hiding behind the Bushites here.

The other point is one he just brushes by, but is very important to understand: You are, he said, "barred from suing [government agencies] unless they 'willfully disclose' to the public what they have learned." To the public. That's the phrase to note.

Because under the Obama administration's position, the information gathered can be kept and it can be disclosed. Depending on exact circumstances, it can be disclosed to other government agencies. It can be disclosed to law enforcement agencies. It might even be disclosed to foreign governments. But as long as it is still called "secret," as long as it has not been officially released to the general public, it has not been "willfully disclosed." And you still have no recourse. In fact, even if the information was deliberately leaked, you likely would have no recourse against anyone but the actual leaker - assuming that by some miracle you could identify them.

That's why Keith Olbermann's description of it as being like someone stealing your money but that's okay as long as they don't spend it, is not right: It's more like someone stealing your money but that's okay as long as they don't tell you what they spent it on.

It's been said by several observers that no president wants to surrender any of the power of the office. It's also been said that power corrupts. Barack Obama gives every sign of proving both adages correct.

And dammit, I told you so.

Updated to note that Dday at Hullabaloo has some additional stuff about a growing anger over Obama's use of secrecy and national security claims to conceal information about Executive Branch criminality. I also found interesting how in comments several people strove mightily to argue that everything is fine, trust in Obama; one even suggested that this is a strategy, that Obama is deliberately abusing assertions of presidential power to force Congress to pass limiting legislation, while another labeled the opposition "simple-minded" and employed the hoary "we don't have all the facts" dodge.

Is it too soon?

Nah, it's not. No way.

I told you so. All of you who thought Barack Obama was the second coming. All of you who found ways to excuse every twist, dodge, and rightwing-pandering as either unimportant or part of some brilliant strategy. All of you who carped "Hey, why don't you wait until he actually does something, y'know?"

I told you so. Not just me, of course, there were others. We told you so. I told you so. Specifically on this:

The day after the election I wrote of Barack Obama that

those who insist that on matters such as FISA he will be different as president than he was as a senator are just kidding themselves. In fact, I suspect that the reason he flip-flopped on FISA is that he started contemplating having those powers himself.

What's happened in the interim? I'll let Glenn Greenwald lay it out:

Thus far, in the realm of the Constitution and civil liberties, the primary attribute of the Obama administration is to do everything in its power to protect and preserve the President's ability to assert the radical powers invented and seized by the Bush administration, independent of whether they actually intend to use those powers at some point.

In other words, I told you so, which I'll now demonstrate with some specifics.

O-ba-MA! O-ba-MA!

This can be thought of as a footnote to the preceding since what was in that post raised the idea of this one.

Okay, the Obama administration is 10 days old and there have been some mixed reviews. He has done some good things or perhaps made some improvements would be a more accurate description, including supporting and signing the Lilly Ledbetter Act and, word has it, planning

to sign an untold number of executive orders that are friendly to organized labor

at a White House event with labor leaders later today.

But still there are dark clouds and O-ba-ma! could easily turn into Uh-oh-ba-ma! Last week, my sometimes-debate partner Tgirsch over at Lean Left posted "a question for the cynics" about Obama:

What would you have Obama do that:

1. You expect him not to do.
2. You think he has a prayer of getting Congress behind him (if Congressional involvement is needed).
3. Would be supported by a majority of the American public, or at least a very large minority.

In my answer I said that

the structure of the question is, hopefully unintentionally, extremely restrictive. Put a different way, I’m being asked to name something that I want Obama to do, which already has widespread, even majority, public support, and which already has at minimum sufficient support in Congress to build on - but which he would refuse to do anyway.

Something about camels and the eye of a needle comes up here. Did we elect Obama to make changes or merely to endorse what is already popular?

However, I will suggest a few that meet criteria #1 and at least one of the two others:

1. He will not withdraw all troops from Iraq.
2. He (watch the construction here) will not not escalate in Afghanistan.
3. He will not investigate Bush administration crimes relating to national security and Constitutional rights.
4. He will not undo the “Protect America Act” (the changes to FISA) - and, since doing so would require Congressional action, I’ll add that neither will he foreswear the use of the expanded powers it provided.
5. He will not seek to reverse the hideous 2005 bankruptcy law.
6. He will not require of corporations that they provide detailed accounts of how they spent their TARP money before they can get any more and he will not require such detailed accounts from new applicants.
7. He will not, in the pursuit of a few more GOPper votes, refuse to capitulate to demands that the proposed stimulus package focus more than it has on tax cuts and less than it has on spending to create jobs.

That’s enough for now; I’m sure I’ll think of more.

Tgirsch subsequently said the restrictive nature was deliberate.

It comes down to a fundamental difference in philosophy[, he said,] and it has nothing to do with liberal/conservative. It has to do with pragmatism/idealism. There’s room for both, of course, but I slide a lot more toward the pragmatism end of the scale than most of the others in this comment thread.

I replied that

I think it likely that we would not be far apart on what we think is achievable at the present moment. It’s just that in any political fight, not just elections but any political fight, there is what you want and what you will settle for.

I maintain that if you start out shooting for what you’ll settle for, at the end of the day you’ll always wind up with less and too often get into “get worse more slowly” territory.

So with Obama now, I don’t think we should concern ourselves with what will pass Congress or is already popular but with what we want done. Then we can, if necessary, negotiate back to what we’ll settle for - and maybe a good deal more. ...

We should focus on widening the debate, getting more options on the board, before we start saying “X is the best we can get.”

My main "idealistic" objection to "pragmatism" is that all too often being "pragmatic" winds up meaning being so focused on what you can get now that you forget where you were trying to go in the first place. My own notion of being pragmatic is pretty much the reverse: to make the dream central and ask what best advances the chances for that dream. It's like the old story about the stone worker who hammers at a block 99 times without visible effect only to have it shatter on the 100^th: The true pragmatist would have given up at the beginning because it wouldn't appear that any progress could be made right now; the true idealist would say "this is the only way the block is going to be broken" and keep at the practical work of hammering.

Just about a week and a-half ago, I quoted a speech I gave oh my word over 24 years ago in which I expressed the same idea a different way, urging listeners to

hold to the vision of what we as a people, what we as a nation, can do, what we can be, and not settle, as so many do, for the mere hope that it will get no worse. [Be] steely-eyed dreamers, people who know the hard, factual work to be done but never forget just where that work is supposed to take them.

Ultimately, I suppose it can be said that the best idealists need to be practical but the best pragmatists don't need an ideal - which is unfortunate and can easily turn pragmatists into mere technocrats, concerned less with changing the system than with running it efficiently, or, as Obama supporters (no more than members of his administration) put it, avoiding the dreaded "ideologues" in favor of "competent people" without thought to just what end it is that those people are supposed to be working toward.

Anyway, getting away from this lengthy digression and back to what prompted this post, which was not to re-hash some pragmatism-idealism dispute, and to why it can be a sort of footnote to the preceding: I've thought of a number eight and a number nine for the list.

8. He will not as part of the banking industry bailout require changes in the management or the business practices of the banks and investment houses. (Bonus givebacks do not count as "changes" in this context.)

And the one related to the preceding post,

9. He will not seek to have the Military Commissions Act revoked. Amended, yes, but not revoked - and among the amendments will not be one to remove the stripping away of habeas corpus rights.

I invited Tgirsch to keep a record of my predictions in the hope that at some point he will be able to throw it in my face because it turned out I was wrong. I would rarely be happier to be wrong and the more times I'm wrong on this list, the happier I will be.

Footnote: The Paycheck Fairness Act, a wider pay-equity bill than the Lilly Ledbetter Act, has passed the House. Senate action is predicted by spring.

Another Footnote: You'll notice that there's nothing in the items relating to the banking industry that make any reference to any form of democratic socialism or public ownership of the industry or any parts of it. ("Ownership" that consists of "we pick up the debts but you folks keep running things" is not "ownership" for this purpose.) I didn't bother as that is just too far outside the realm of possibility.

Inauguration

I suppose I should say something about the inauguration since just about everyone else is.

To the "future question" that some TV network or another has been pushing, "Where were you when history was made?" I can now answer "I was asleep." After suffering through another round of my on-going battle with insomnia and finally getting to sleep around 7am only to be awakened by the dog whining to go out at 10 and again at 11:30, at 11:45 I laid back down and woke up at 12:15. So I missed the whole thing.

And I don't mind. I'm not all oh gee whiz gosh darn about it. Now, yes, I am aware of the historic nature of the event. I remember saying back before the primaries even began, back in March 2007, that I felt "grudging admiration" for the fact that

[j]ust 42 years - and no, that is not a long time in the run of history - just 42 years after blacks were viciously beaten simply for wanting to vote by police who assumed they still could get away with it - just 42 years later, the leading candidates for the Democratic Party nomination for president are a black man and a woman.

But I'm also aware that Barack Obama is not what many of the people at the thousands of "inauguration parties" think he is. He is not a "savior" in either a literal or a flip sense of the term and "Yes we can," lacking the rest of a sentence filling in what goals are being declared doable, is an empty slogan inviting everyone to insert their own understandings and desires.

As I've noted before, Obama was not a "peace" candidate, he was just a "I knew Iraq was a dumb idea" candidate.

He's a reliable, accepts-the-common-wisdom, centrist who can be counted on to strive to continue the Pax Americana,

as, among other things, his intent to send additional troops to Afghanistan and his embrace of the fiction of an active Iranian nuclear weapons program show. More generally, he is

a moderately liberal but still a corporatist Democrat who more than once has shown his willingness to burn principle at the altar of political expediency,

that last referring, among other things, specifically to his shameful, cowardly, flip-flop on FISA. And there is still the matter of his views on same-sex marriage, something that the Rick Warren imbroglio did nothing to counter.

Still, as I'm prone to say, skin cancer, bad as it is, is preferable to lung cancer, and so is having a president who disappoints by being less than he could be as compared to one who always seemed to be even worse than you thought. So I felt about his inauguration pretty much the same thing I felt about his election: A certain sense of relief. Not excitement, not enthusiasm, but yes, some relief.

So I do wish Barack Obama well and I imagine that over the next four years there will even be times I'll be able to say "I can agree with that." Which, I'm forced to admit if I'm to be honest, will be a real improvement over the last eight years, even if still on the skin cancer level.

I will add one other thing, though:

I saw the kind of public enthusiasm generated by the event. I listened to pundits with catches in their voices go on about the "profound change" Obama's inauguration represents as if it actually does mean "the end of racism." I watched "Countdown" and heard Ken Burns declare that the US is "the only nation on Earth stitched together with words and ideas" and Keith Olbermann follow up by saying the country had switched from preferring the guy you'd rather have a beer with to the guy you want to lead the nation and asking if there is "another country that has this capacity for re-invention" (to which Burns replied, "I don't think so"). I heard and saw additional crystallized examples of what I have called "the myth of American innocence" and which others, such as James, describe as the notion of "American exceptionalism" until it became almost nauseating, treacle laced with honey.

I saw, I heard, and I thought "Good luck, Barack Obama, you're going to need it. Because no one could live up to the expectations that are being set for you."

Footnote to the preceding

Several commentators among the supposed progressive portions of the online community have reacted to some recent criticism of Barack Obama from other members of that same community by saying, in essence, "shut yer trap." Or, in the words of John Cole, "just please shut the fuck up."

Until when, you ask? Again quoting John Cole, "until he actually does something you disagree with, you WATB."

Which, if I may equal Mr. Cole's honesty of expression, is a really, really, really, STUPID piece of advice.

The other day, Glenn Greenwald quite properly pointed out the leaks such as the one I referenced about Obama being "centrist" on intelligence and torture

should be taken with a hefty dose of skepticism, as they are often used by people to push a President-elect in the direction they want him to go.

Indeed. But that is exactly the point. This is not the campaign, where Obama was surrounded by supporters, this is the transition, where he is surrounded by people with various ideas - and various agendas, both political and personal. Leaks such as this are often trial balloons designed to test the reaction to an idea. If that reaction is positive or muted, it adds political strength to that direction.

We know, we know, that Obama is getting pressure from the media, from the foreign policy establishment, from among his own advisors, to be and remain part of their post-Cold War, post-9/11 consensus. That would include abandoning his promises regarding wiretapping, executive power, and intelligence methods. He's getting pushback on closing Gitmo. Hell, he's even getting pushback from the military and the national security establishment on the one promise he probably dare not break: that of getting combat troops out of Iraq in 16 months.

We know he's getting that pressure. To refuse to respond to the leaks, the trial balloons, to remain silent "until he actually does something" is to wait until it is too late to do our own pushing back.

So, no! No limiting opposition to rear-guard, after-the-fact resistance, struggling uphill to reverse a decision already made. If we hope to see something approaching an actual progressive agenda come out of the White House, then when word is out that Obama "will do so-and-so" or "is planning take this attitude toward such-and-such," we should be, we must be, prepared to criticize, even attack, in order to make it clear that so-and-so and such-and-such are not our preferred direction - and do it before that course is set.

So those of you counseling silence and patience and (therefore) blind trust, can just shut the fuck up about demanding others shut the fuck up.

Footnote to the Footnote: I know that John Cole is fairly conservative; he voted for Shrub twice and says "I left the right because they were such assholes I could not stand it anymore." But I don't think that Whiskey Fire or No More Mister Nice Blog or Glenn Greenwald, to name three, are regarded that way.

The temptation grows

Updated The temptation, that is, to say "tolja so." Yes, yes, okay, I shouldn't be saying it yet, yes, it's too early to make final judgments, but, still!

From Tuesday's Wall Street Journal Online:

President-elect Barack Obama is unlikely to radically overhaul controversial Bush administration intelligence policies, advisers say....

Mr. Obama is being advised largely by a group of intelligence professionals, including some who have supported Republicans, and centrist former officials in the Clinton administration. They say he is likely to fill key intelligence posts with pragmatists.

"He's going to take a very centrist approach to these issues," said Roger Cressey, a former counterterrorism official in the Clinton and Bush administrations. ...

[Obama] voted for a White House-backed law to expand eavesdropping powers for the National Security Agency. ...

The new president could take a similar approach to revising the rules for CIA interrogations, said one current government official familiar with the transition. Upon review, Mr. Obama may decide he wants to keep the road open in certain cases for the CIA to use techniques not approved by the military, but with much greater oversight.

In other words, to 'keep the road open" to use torture, which is precisely what "techniques not approved by the military" means. So the problem wasn't with torture, it turns out, it was just that the White House didn't exercise close enough control over it. It wasn't with the illegal wiretapping, which Obama ultimately approved. It wasn't with the felonies, to which he has given a pass. It wasn't with the claims of extraordinary powers. It wasn't, that is, with the lawlessness, the power grabs, the spying, or the torture. The problem was simply that is wasn't focused enough.

Just last week I said that I suspect that the reason Obama flip-flopped on FISA is that he started contemplating having those powers himself. And this "review" appears to be moving in exactly that direction: It's always easier (and tempting) to embrace power when you are the one wielding it. Although I must admit in fairness the "review" isn't complete and may at the end of the day favor the Constitution, the law, and human decency above cold-blooded, amoral "pragmatism," I very much doubt it. The kind of people he has surrounded himself with give me little cause for optimism: The head of his transition team on intelligence is one John Brennan, who as George Tenet's chief of staff was an advocate of using torture and last spring, already a foreign policy adviser to the Obama campaign, openly pushed for telcom immunity, for the government to use commercial databases for data mining, and for "continuity" in both intelligence personnel and intelligence programs - while brushing off a question about privacy and civil liberties by saying they "mean so many different things to different people."

So while I can still hope for the gest, I really do feel like saying "I told you so."

Footnote: One other point to be made here is that it illustrates just how distorted, how corrupt, how morally twisted, our governing ethics have become when the idea of using torture, just with "greater oversight," is regarded as a "centrist," a moderate, a middle-of-the-road, position.

The fact is, some issues do not deserve to be discussed as if they were areas about which reasonable people could disagree. Some things lie outside the boundaries of human decency and need to be condemned as such. Torture, which is both inhumane and ineffective, which destroys the humanity of the torturer even as it destroys the body of the tortured, is one such.

In the first issue of his newspaper The Liberator, the abolitionist William Lloyd Garrison said this in regard to slavery:

I will be as harsh as truth and as uncompromising as justice. On this subject I do not wish to think, or speak, or write with moderation. No! no! Tell a man whose house is on fire, to give a moderate alarm; tell him to moderately rescue his wife from the hand of the ravisher; tell the mother to gradually extricate her babe from the fire into which it has fallen; - but urge me not to use moderation in a cause like the present. I am in earnest - I will not equivocate - I will not excuse - I will not retreat a single inch - AND I WILL BE HEARD.

So should it be with torture.

Updated with the information about John Brennan.

Okay, it's the day after

Any morning-after (okay, evening-after) regrets? How many of you are - or should be - thinking "Damn, I could have voted for that third-party candidate I actually favored?"

Herewith, some random thoughts:

1. I have to admit I greeted the outcome with a certain sense of relief. Not excitement, not enthusiasm, but yeah, a certain sense of relief. Make of that what you will; I suspect it's the difference between "won't get better but just maybe won't get much worse" on the one hand versus "would get much worse" on the other.

2. Yes, Obama's victory did have a real symbolic value; it did break a barrier. Nearly two years ago - oh my word, this really has been going on that long, hasn't it - I had "a burst of hope" in the fact that

[j]ust 42 years - and no, that is not a long time in the run of history - just 42 years after blacks were viciously beaten simply for wanting to vote by police [outside Selma, Alabama,] who assumed they still could get away with it - just 42 years later, the leading candidates for the Democratic Party nomination for president are a black man and a woman.

So now people are saying this shows that "anybody can be president." That's quite an overstatement, but at least it shows that a black man can be president. Which is apparently true - provided you're an erudite, eloquent, Harvard-educated lawyer, millionaire, US Senator black man.

I have to add in fairness that likely that's what was required. Breaking any sort of social barrier is difficult and often it is the sterling or at least superior example that's required. Consider the obvious comparison to Jackie Robinson breaking the color barrier in major league baseball: Robinson was not merely a ballplayer, he was a great ballplayer, Rookie of the Year, MVP, 6-time All-Star, .311 lifetime batting average. And he also had enormous self-control, the ability to ignore the racial epithets hurled at him, knowing that if he reacted it would be used as evidence that blacks were "too unstable" to play in the majors.

So it may be that in order to get there, the first black president had to be more eloquent, smarter, tougher, more resilient, more tenacious, than the typical politician. And whatever you think of his politics, I think most would agree that Obama is those things.

3. But I strongly suspect that in a while a lot of people are going to be very disappointed in Barack Obama. While opponents will be surprised to discover he's not nearly as bad as they'd been lead to believe (Louis Farrakhan is not going to be heading up any cabinet department), supporters are going to be dismayed to discover that he's not nearly as good as they had lead themselves to believe, that the soaring rhetoric will not produce soaring policies and that there was far more hope in the words than there will be in the deeds.

Today I saw a Obama bumper sticker with the "O" made into a peace symbol. The local peace vigil has shut down, declaring "mission accomplished." Those people surely are going to be among the disappointed. As I said a couple of weeks ago,

Barack Obama is not a peace candidate. He's just a "I knew Iraq was a dumb idea" candidate. That's why people like Colin Powell and the several neo-cons who have endorsed Obama feel comfortable doing so: He's a reliable, accepts-the-common-wisdom, centrist who can be counted on to strive to continue the Pax Americana.

And I believe that those who insist that on matters such as FISA he will be different as president than he was as a senator are just kidding themselves. In fact, I suspect that the reason he flip-flopped on FISA is that he started contemplating having those powers himself. And you want centrist? He just asked Rahm Emanuel to be his chief of staff.

4. If John McCain had run his campaign the way he ran his concession, he would have done better.

5. Best moment for me from the coverage of the victory celebrations: the shot of Jesse Jackson crying, overcome with emotion. We tend to forget just how much of a trailblazer Jackson was: In 1988 he made a serious run for the Democratic nomination for president and was openly discussed as a possible veep choice. In August of that year, I wrote to a friend about what I thought was

probably the single most significant statement to come out of the campaign so far. Before the North Carolina Democratic primary, a pollster asked a rural, red-neck farmer who he was supporting. “I’m gonna vote for the nigger,” he answered.

It’s no longer possible to refuse to accept a black (at least a black man - sexism still reigns) as a serious candidate for the presidency. That is quite an accomplishment.

So I can only imagine how much Obama's victory meant to him. I wonder if, like Rep. John Lewis, he thought he wouldn't live to see this.

6. Post-election question with the most obvious answer: Media Matters wonders if in its post-election coverage the media will recall how readily it embraced claims that Bush's victory in 2004 - smaller than Obama's in vote margin, vote percentage, and electoral votes - was a "mandate" for his policies.

But let's be clear here: Obama overwhelmingly won the electoral vote, but he won the popular vote by just 52-46. That's a clear margin, to be sure, but hardly genuine "mandate" territory. We are still a divided nation and the wackos and nutballs populating the right edge of our political discourse are not going to go away. I do not even expect a moderation in their rhetoric; in fact I expect it to escalate. I will for the moment (and only for the moment) accept Obama's victory as a pause in a slide toward political repression and slashing of Constitutional freedoms. But it is not an end to it and we are still on the downside of that hill. The absolute worst thing we can do is assume we can breathe easy.

7. One last thing here: I saw a news item about "reaction from the White House to Barack Obama's victory." And for whatever it's worth to have noticed - I heard a genuine catch, genuine emotion, in the voice of Secretary of State Condoleeza Rice.

Update to the preceding

Literally within hours of Shrub's signing of the FISA bill, the ACLU filed suit in U.S. District Court for the Southern District of New York, charging that

the new spying law violates Americans' rights to free speech and privacy under the First and Fourth Amendments to the Constitution

and is an abuse of government power. The Nation magazine joined the suit on behalf of itself, its staff, and two of its contributing writers.

As Julian Sanchez at Ars Technica points out, the hard part of this is proving you have "standing" to sue, that is, you have been affected by whatever it is you're suing about. One of the approaches is the chilling effect the very existence of the law has on people, particularly the suing journalists who are losing sources.

The ACLU has tried this approach before, however, and has been rebuffed by the court. The group won an initial victory in a 2006 suit over warrantless NSA surveillance, but that ruling was overturned by the Sixth Circuit Court of Appeals, which held that the purported chiling effect was too inchoate to ground a claim of standing.

But, he says, the ACLU thinks this time will be different because it involves a law rather than secret spying, making it harder for the administration to wriggle loose by claiming the "state secrets privilege."

In a separate filing with the FISA Court, the ACLU asked the court

to ensure that any proceedings relating to the scope, meaning or constitutionality of the new law be open to the public to the extent possible. The ACLU also asked the secret court to allow it to file a brief and participate in oral arguments, to order the government to file a public version of its briefs addressing the law's constitutionality, and to publish any judicial decision that is ultimately issued.

That strikes me as a clever move as the government would be hard-put to make a coherent argument that discussions of the constitutionality of the law need to be kept secret or involve national security secrets - not that such will keep the Shrub gang from making any lame-ass argument that pops into their undersized brain pans to say that they do nor will it keep the lap dogs on the FISC from agreeing. Still even that raises an opening to say the administration won't have an open discussion - or perhaps even better, to say the White House regards the Constitution's protections as state secrets.

For more background on the suit, Glenn Greenwald has an interview with ACLU National Security Project Director Jameel Jaffer about it. More information about the ACLU's efforts against the bill can be found here and links to the filings can be found here.

On the impact of all this, Greenwald writes that

[b]y all rights ... this bill should have passed quietly and seamlessly back last December. That's normally how the Washington Establishment functions.

It really was a true spontaneous outburst of citizen activism that prevented that from happening. As a result, new coalitions formed. There will now be lawsuits challenging the constitutionality of this travesty of a law. The activism that arose over this bill ... force[d] these issues into the public discourse, and will serve as a foundation, a launching pad, for far more potent and effective efforts against future assaults of this type from the political class on the rule of law and core Constitutional protections.

"[I]t is," he said, "hardly the end of anything, but the beginning." I'm not nearly so hopeful; in fact I feel like throwing a party, remembering Cesar Chavez's comment about the United Farm Workers union that "We have so few victories we need to celebrate our losses."

Still, while I'm not willing to "suck it up" to justify or excuse Barack Obama and the rest of the scummy Democraps who voted for oppression either out of thumb-sucking political cowardice or a genuine disdain for Constitutional rights (I'm still not sure which is worse), I certainly think I should suck it up on continued opposition. So I will do my best.