The due-process-free assassination of U.S. citizens is now reality

(updated below)

It was first reported in January of last year that the Obama administration had compiled a hit list of American citizens whom the President had ordered assassinated without any due process, and one of those Americans was Anwar al-Awlaki.  No effort was made to indict him for any crimes (despite a report last October that the Obama administration was "considering" indicting him).  Despite substantial doubt among Yemen experts about whether he even has any operational role in Al Qaeda, no evidence (as opposed to unverified government accusations) was presented of his guilt.  When Awlaki's father sought a court order barring Obama from killing his son, the DOJ argued, among other things, that such decisions were "state secrets" and thus beyond the scrutiny of the courts.  He was simply ordered killed by the President: his judge, jury and executioner.  When Awlaki's inclusion on President Obama's hit list was confirmed, The New York Times noted that "it is extremely rare, if not unprecedented, for an American to be approved for targeted killing."

After several unsuccessful efforts to assassinate its own citizen, the U.S. succeeded today (and it was the U.S.).  It almost certainly was able to find and kill Awlaki with the help of its long-time close friend President Saleh, who took a little time off from murdering his own citizens to help the U.S. murder its.  The U.S. thus transformed someone who was, at best, a marginal figure into a martyr, and again showed its true face to the world.  The government and media search for The Next bin Laden has undoubtedly already commenced.

What's most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar ("No person shall be deprived of life without due process of law"), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law). What's most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government's new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government.  Many will celebrate the strong, decisive, Tough President's ability to eradicate the life of Anwar al-Awlaki -- including many who just so righteously condemned those Republican audience members as so terribly barbaric and crass for cheering Governor Perry's execution of scores of serial murderers and rapists -- criminals who were at least given a trial and appeals and the other trappings of due process before being killed. 

From an authoritarian perspective, that's the genius of America's political culture.  It not only finds way to obliterate the most basic individual liberties designed to safeguard citizens from consummate abuses of power (such as extinguishing the lives of citizens without due process).  It actually gets its citizens to stand up and clap and even celebrate the destruction of those safeguards.

* * * * * 

In the column I wrote on Wednesday regarding Wall Street protests, I mistakenly linked to a post discussing a New York Times article by Colin Moynihan as an example of a "condescending" media report about the protest.  There was nothing condescending or otherwise worthy of criticism in Moynihan's article; I meant to reference this NYT article by Ginia Bellafante.  My apologies to Moynihan, who rightly objected by email, for the mistake. 


UPDATE: What amazes me most whenever I write about this topic is recalling how terribly upset so many Democrats pretended to be when Bush claimed the power merely to detain or even just eavesdrop on American citizens without due process.  Remember all that?  Yet now, here's Obama claiming the power not to detain or eavesdrop on citizens without due process, but to kill them; marvel at how the hardest-core White House loyalists now celebrate this and uncritically accept the same justifying rationale used by Bush/Cheney (this is war! the President says he was a Terrorist!) without even a moment of acknowledgment of the profound inconsistency or the deeply troubling implications of having a President -- even Barack Obama -- vested with the power to target U.S. citizens for murder with no due process.

Also, during the Bush years, civil libertarians who tried to convince conservatives to oppose that administration's radical excesses would often ask things like this: would you be comfortable having Hillary Clinton wield the power to spy on your calls or imprison you with no judicial reivew or oversight?  So for you good progressives out there justifying this, I would ask this:  how would the power to assassinate U.S. citizens without due process look to you in the hands of, say, Rick Perry or Michele Bachmann?

I was on Democracy Now earlier this morning discussing the Awlaki assassination and presidential due-process-free killings:

The FBI again thwarts its own Terror plot

The FBI has received substantial criticism over the past decade -- much of it valid -- but nobody can deny its record of excellence in thwarting its own Terrorist plots.  Time and again, the FBI concocts a Terrorist attack, infiltrates Muslim communities in order to find recruits, persuades them to perpetrate the attack, supplies them with the money, weapons and know-how they need to carry it out -- only to heroically jump in at the last moment, arrest the would-be perpetrators whom the FBI converted, and save a grateful nation from the plot manufactured by the FBI. 

Last year, the FBI subjected 19-year-old Somali-American Mohamed Osman Mohamud to months of encouragement, support and money and convinced him to detonate a bomb at a crowded Christmas event in Portland, Oregon, only to arrest him at the last moment and then issue a Press Release boasting of its success.  In late 2009, the FBI persuaded and enabled Hosam Maher Husein Smadi, a 19-year old Jordanian citizen, to place a fake bomb at a Dallas skyscraper and separately convinced Farooque Ahmed, a 34-year-old naturalized American citizen born in Pakistan, to bomb the Washington Metro.  And now, the FBI has yet again saved us all from its own Terrorist plot by arresting 26-year-old American citizen Rezwan Ferdaus after having spent months providing him with the plans and materials to attack the Pentagon, American troops in Iraq, and possibly the Capitol Building using "remote-controlled" model airplanes carrying explosives.

None of these cases entail the FBI's learning of an actual plot and then infiltrating it to stop it.  They all involve the FBI's purposely seeking out Muslims (typically young and impressionable ones) whom they think harbor animosity toward the U.S. and who therefore can be induced to launch an attack despite having never taken even a single step toward doing so before the FBI targeted them.  Each time the FBI announces it has disrupted its own plot, press coverage is predictably hysterical (new Homegrown Terrorist caught!), fear levels predictably rise, and new security measures are often implemented in response (the FBI's Terror plot aimed at the D.C. Metro, for instance, led to the Metro Police announcing a new policy of random searches of passengers' bags).   I have several observations and questions about these matters:

(1) The bulk of this latest FBI plot entailed attacks on military targets: the Pentagon, U.S. troops in Iraq, and possibly military bases.  The U.S. is -- as it has continuously announced to the world -- a Nation at War.  The Pentagon is the military headquarters for this war, and its troops abroad are the soldiers fighting it.  In what conceivable sense can attacks on those purely military and war targets be labeled "Terrorism" or even illegitimate?  The U.S. has continuously attacked exactly those kinds of targets in multiple nations around the world; it expressly tried to kill Saddam and Gadaffi in the wars against their countries (it even knowingly blew up an entire suburban apartment building to get Saddam, who wasn't actually there).   What possible definition of "Terrorism" excludes those attacks by the U.S. while including this proposed one on the Pentagon and other military targets (or, for that matter, Nidal Hasan's attack on Fort Hood where soldiers deploy to war zones)?

(2) With regard to the targeted building that is not purely a military target -- the Capitol Building -- is that a legitimate war target under the radically broad standards the U.S. and its allies have promulgated for themselves?  The American "shock and awe" assault on Baghdad destroyed "several government buildings and palaces built by Saddam Hussein"; on just the third day of that war, "U.S. bombs turn[ed] key government buildings in Baghdad into rubble."  In Libya, NATO repeatedly bombed non-military government buildings.  In Gaza, Israeli war planes targeted a police station filled with police recruits on the stated theory that a valid target "ranges from the strictly military institutions and includes the political institutions that provide the logistical funding and human resources" to Hamas.  

Obviously, there is a wide range of views regarding the justifiability of each war, but isn't the U.S. Congress -- which funds, oversees, and regulates America's wars -- a legitimate war target under the (inadvisedly) broad definitions the U.S. and its allies have imposed when attacking others?  If the political leaders and even functionaries of other countries with which the U.S. is at war are legitimate targets, then doesn't that necessarily mean that Pentagon officials and, arguably, those in the Congress are as well?

(3) The irony that this plot featured "remote-controlled aircraft filled with plastic explosives" is too glaring to merit comment; the only question worth asking is whether the U.S. Government can sue Ferdaus for infringing its drone patents.  Glaring though that irony is, there is no shortage of expressions of disgust today, pondering what kind of dasterdly Terrorist monster does it take to want to attack buildings with remote-controlled mini-aircraft.

(4) Wouldn't the FBI's resources be better spent on detecting and breaking up actual Terrorist plots -- if there are any -- rather than manufacturing ones so that they can stop those?  Harboring hatred for the U.S. and wanting to harm it (or any country) is not actually a crime; at most, it's a Thought Crime.  It doesn't become a crime until steps are taken to attempt to transform that desire into reality.  There are millions and millions of people who at some point harbor a desire to impose violent harm on others who never do so: perhaps that's true of a majority of human beings.  Many of them will never act in the absence of the type of highly sophisticated, expert push of which the FBI is uniquely capable.  Is manufacturing criminals -- as opposed to finding and stopping actual criminals -- really a prudent law enforcement activity?

(5) Does the FBI devote any comparable resources to infiltrating non-Muslim communities in order to persuade and induce those extremists to become Terrorists so that they can arrest them?  Are they out in the anti-abortion world, or the world of radical Christianity, or right-wing anti-government radicals, trying to recruit them into manufactured Terrorist plots?

(6) As usual, most media coverage of the FBI's plots is as uncritical as it is sensationalistic.  The first paragraph of The New York Times article on this story described the plot as one "to blow up the Pentagon and the United States Capitol."  But the FBI's charging Affidavit (reproduced below) makes clear that Ferdaus' plan was to send a single model airplane (at most 1/10 the size of an actual U.S. jet) to the Capitol and two of them to the Pentagon, each packed with "5 pounds" of explosives (para. 70); the Capitol was to be attacked at its dome for "psychological effect" (para 34).  The U.S. routinely drops 500-pound or 1,000-pound bombs from actual fighter jets; this plot -- even if it were carried out by someone other than a hapless loner with no experience and it worked perfectly -- could not remotely "blow up" the Pentagon or the Capitol.

(7) As is now found in almost every case of would-be Terrorist plots against the U.S. -- especially "homegrown Terrorists" -- the motive is unbridled fury over (and a desire to avenge) contintuous U.S violence against Muslim civilians.  Infused throughout the charging Affidavit here are such references to Ferdaus' motives, including his happiness over the prospect of killing U.S. troops in Iraq; his proclamation that he's "interested in traveling to Afghanistan" to aid insurgents; his statement that "he wanted to 'decapitate' the U.S. government's 'military center' and to severely disrupt . . . the head and heart of the snake" (para 12) and to "essentially decapitate the entire empire" (para 34) (compare that language to how the U.S. described what it tried to do in Baghdad).  Using drones to decapitate the leadership and government infrastructure of a nation at war; I wonder where he got that idea.

At least according to the FBI, this is how Feradus replied when expressly asked why he wanted to attack the U.S.:

Cause that would be a huge scare . . . the point is you want to scare them so they know not to mess with you . . . They have . . . . have killed from us, our innocents, our men, women and children, they are all enemies (para 19).

If the FBI's allegations are accurate, then it's clear Ferdaus has become hardened in his hatred; he talks about a willingness to kill American civilians because they have become part of the enemy, and claims that he fantasized about such attacks before the FBI informant spoke to him.  

But whatever else is true,  it's simply unrealistic in the extreme to expect to run around for a full decade screaming WE ARE AT WAR!! -- and dropping bombs and attacking with drones and shooting up families in multiple Muslim countries (and occupying, interfering in and killing large numbers before that) -- and not produce many Rezwan Ferdauses.  In fact, the only surprising thing is that these seem to be so few of them actually willing and able to attack back that -- in order to justify this Endless War on civil liberties (and Terror) -- the FBI has to search for ones they can recruit, convert, convince, fund, and direct to carry out plots.

Complaint Affidavit

What's behind the scorn for the Wall Street protests?

(updated below w/correction)

It's unsurprising that establishment media outlets have been condescending, dismissive and scornful of the ongoing protests on Wall Street.  Any entity that declares itself an adversary of prevailing institutional power is going to be viewed with hostility by establishment-serving institutions and their loyalists.  That's just the nature of protests that take place outside approved channels, an inevitable by-product of disruptive dissent: those who are most vested in safeguarding and legitimizing establishment prerogatives (which, by definition, includes establishment media outlets) are going to be hostile to those challenges.  As the virtually universal disdain in these same circles for WikiLeaks (and, before that, for the Iraq War protests) demonstrated: the more effectively adversarial it is, the more establishment hostility it's going to provoke. 

Nor is it surprising that much of the most vocal criticisms of the Wall Street protests has come from some self-identified progressives, who one might think would be instinctively sympathetic to the substantive message of the protesters.  In an excellent analysis entitled "Why Establishment Media & the Power Elite Loathe Occupy Wall Street," Kevin Gosztola chronicles how many of the most scornful criticisms have come from Democratic partisans who -- like the politicians to whom they devote their fealty -- feign populist opposition to Wall Street for political gain.

Some of this anti-protest posturing is just the all-too-familiar New-Republic-ish eagerness to prove one's own Seriousness by castigating anyone to the left of, say, Dianne Feinstein or John Kerry; for such individuals, multi-term, pro-Iraq-War Democratic Senator-plutocrats define the outermost left-wing limit of respectability.  Also at play is the jingoistic notion that street protests are valid in Those Bad Countries but not in free, democratic America. 

A siginificant aspect of this progressive disdain is grounded in the belief that the only valid form of political activism is support for Democratic Party candidates, and a corresponding desire to undermine anything that distracts from that goal.  Indeed, the loyalists of both parties have an interest in marginalizing anything that might serve as a vehicle for activism outside of fealty to one of the two parties (Fox News' firing of Glenn Beck was almost certainly motivated by his frequent deviation from the GOP party-line orthodoxy which Fox exists to foster).

The very idea that one can effectively battle Wall Street's corruption and control by working for the Democratic Party is absurd on its face: Wall Street's favorite candidate in 2008 was Barack Obama, whose administration -- led by a Wall Street White House Chief of Staff and Wall-Street-subservient Treasury Secretary and filled to the brim with Goldman Sachs officials -- is now working hard to protect bankers from meaningful accountability (and though he's behind Wall Street's own Mitt Romney in the Wall Street cash sweepstakes this year, Obama is still doing well); one of Wall Street's most faithful servants is Chuck Schumer, the money man of the Democratic Party; and the second-ranking Senate Democrat acknowledged -- when Democrats controlled the Congress -- that the owners of Congress are bankers.  There are individuals who impressively rail against the crony capitalism and corporatism that sustains Wall Street's power, but they're no match for the party apparatus that remains fully owned and controlled by it.

But much of this progressive criticism consists of relatively (ostensibly) well-intentioned tactical and organizational critiques of the protests: there wasn't a clear unified message; it lacked a coherent media strategy; the neo-hippie participants were too off-putting to Middle America; the resulting police brutality overwhelmed the message, etc. etc.  That's the high-minded form which most progressive scorn for the protests took: it's just not professionally organized or effective.

Some of these critiques are ludicrous.  Does anyone really not know what the basic message is of this protest: that Wall Street is oozing corruption and criminality and its unrestrained political power -- in the form of crony capitalism and ownership of political institutions -- is destroying financial security for everyone else?  Beyond that, criticizing protesters for the prominence of police brutality stories is pure victim-blaming (and, independently, having police brutality highlighted is its own benefit). 

Most importantly, very few protest movements enjoy perfect clarity about tactics or command widespread support when they begin; they're designed to spark conversation, raise awareness, attract others to the cause, and build those structural planks as they grow and develop.  Dismissing these incipient protests because they lack fully developed, sophisticated professionalization is akin to pronouncing a three-year-old child worthless because he can't read Schopenhauer: those who are actually interested in helping it develop will work toward improving those deficiencies, not harp on them in order to belittle its worth.

That said, some of these organizational/tactical critiques are valid enough as far as they go; the protests could probably be more effective with some more imaginative, concerted and savvy organizational strategies. The problem is these criticisms don't go very far -- at all. 

* * * * *

There's a vast and growing apparatus of intimidation designed to deter and control citizen protests.  The most that's allowed is to assemble with the permission of state authorities and remain roped off in sequestered, out-of-the-way areas: the Orwellian-named free speech zones.  Anything that is even remotely disruptive or threatening is going to be met with aggressive force: pepper spray, mass arrests by highly militarized urban police forces, and aggressive prosecutions.  Recall the wild excesses of force in connection with the 2008 RNC Convention in Minneapolis (I reported on those firsthand); the overzealous prosecutions of civil disobedience activists like Aaron Swartz, environmentalist Tim DeChristopher, and Dan Choi; the war being waged on whistleblowers for the crime of exposing high-level wrongdoing; or the treatment of these Wall Street protesters.

Financial elites and their political servants are well aware that exploding wealth inequality, pervasive economic anxiety, and increasing hostility toward institutions of authority (and corresponding realization that voting fixes very little of this) are likely to bring London-style unrest -- and worse -- to American soil; it was just two weeks ago that New York Mayor Michael Bloomberg warned that the unemployment crisis could trigger "riots."  Even the complacent American citizenry -- well-trained in learned impotence and acquiescence to (even reverence for) those most responsible for their plight -- is going to reach a tipping point of unrest.  There are numerous weapons of surveillance and coercion that have been developed over the last decade in anticipation of that unrest: most of it justified in the name of Terrorism, but all of it featuring decidedly dual-use domestic capability (illustrating what I mean is this chart showing how extensively the Patriot Act has been used in non-Terrorist cases, and how rarely it has been used for Terrorism).

In sum, there is a sprawling apparatus of federal and local militarized police forces and private corporate security designed to send this message: if you participate in protests or other forms of dissent outside of harmless approved channels, you're going to be harmed in numerous ways.  As Yves Smith put it this week:

I’m beginning to wonder whether the right to assemble is effectively dead in the US. No one who is a wage slave (which is the overwhelming majority of the population) can afford to have an arrest record, even a misdemeanor, in this age of short job tenures and rising use of background checks.

This is all designed to deter any meaningful challenges to the government and corporate institutions which are suffocating them, to bully those who consider such challenges into accepting its futility.  And it works.  In an excellent essay on the Wall Street protests, Dennis Perrin writes:

The dissident children were easily, roughly swept aside. Their hearts are in a good place. Their bodies a minor nuisance. They'll stream back to prove their resolve. And they'll get pepper sprayed and beaten down again. And again.

I admire these kids. They're off their asses. Agitating. Arguing. Providing a living example. There's passion and feeling in their dissent. They're willing to be punished. It's easy to mock them, but how many of you would take their place? . . . .

Yet I have doubts. The class war from above demoralizes as much as it incites. Countless people have surrendered. Faded from view. To demonstrate or occupy corporate turf doesn't seem like a wise option. You'll get beaten and arrested. For what? Making mortgage payments is tough enough.

Given the costs and risks one incurs from participating in protests like this -- to say nothing of the widespread mockery one receives --  it's natural that most of the participants will be young and not yet desperate to cling to institutional stability.  It's also natural that this cohort won't be well-versed (or even interested) in the high arts of media messaging and leadership structures.  Democratic Party precinct captains, MBA students in management theory and corporate communications, and campaign media strategists aren't the ones who will fuel protests like this; it takes a mindset of passionate dissent and a willingness to remove oneself from the safe confines of institutional respectability. 

So, yes, the people willing to engage in protests like these at the start may lack (or reject the need for) media strategies, organizational hierarchies, and messaging theories.  But they're among the very few people trying to channel widespread anger into activism rather than resignation, and thus deserve support and encouragement -- and help -- from anyone claiming to be sympathetic to their underlying message.  As Perrin put it:

This part of Michigan [where I live] was once militant. From organized labor to student agitation. Now there's nothing. Shop after shop goes under. Strip malls abandoned. Legalized loan shark parlors spread. Dollar stores hang on. Parking lots riots of weeds. Roads in serious disrepair. Those with jobs feel lucky to be employed. Everyone else is on their own. A general resignation prevails. Life limps by.

Personally, I think there's substantial value even in those protests that lack "exit goals" and "messaging strategies" and the rest of the platitudes from Power Point presentations by mid-level functionaries at corporate conferences.  Some injustices simply need anger and dissent expressed for its own sake, to make clear that there are citizens who are aware of it and do not accept it. 

In Vancouver yesterday, Dick Cheney was met by angry protests chanting "war criminal" at him while he tried to hawk his book, which prompted arrests and an ugly-for-Canada police battle that then became part of the story of his visit.  Is that likely to result in Cheney's arrest or sway huge numbers of people to change how they think?  No.  But it's vastly preferable to allowing him to traipse around the world as though he's a respectable figure unaccompanied by anger over his crimes -- anger necessarily expressed outside of the institutions that have failed to check or punish (but rather have shielded and legitimized) those crimes.  And the same is true of Wall Street's rampant criminality.

But for those who believe that protests are only worthwhile if they translate into quantifiable impact: the lack of organizational sophistication or messaging efficacy on the part of the Wall Street protest is a reason to support it and get involved in it, not turn one's nose up at it and join in the media demonization.  That's what one actually sympathetic to its messaging (rather than pretending to be in order more effectively to discredit it) would do.  Anyone who looks at mostly young citizens marching in the street protesting the corruption of Wall Street and the harm it spawns, and decides that what is warranted is mockery and scorn rather than support, is either not seeing things clearly or is motivated by objectives other than the ones being presented.


UPDATE:  In the first paragraph , I mistakenly linked to a post discussing a New York Times article by Colin Moynihan as an example of a "condescending" media report about the protest.  There was nothing condescending or otherwise worthy of criticism in Moynihan's article; I meant to reference this NYT article by Ginia Bellafante.  My apologies to Moynihan, who rightly objected by email, for the mistake. 

What media coverage omits about U.S. hikers released by Iran

(updated below)

Two American hikers imprisoned for more than two years by Iran on extremely dubious espionage charges and in highly oppressive conditions, Joshua Fattal and Shane Bauer, were released last week and spoke yesterday in Manhattan about their ordeal.  Most establishment media accounts in the U.S. have predictably exploited the emotions of the drama as a means of bolstering the U.S.-is-Good/Iran-is-Evil narrative which they reflexively spout.  But far more revealing is what these media accounts exclude, beginning with the important, insightful and brave remarks from the released prisoners themselves (their full press conference was broadcast this morning on Democracy Now).

Fattal began by recounting the horrible conditions of the prison in which they were held, including being kept virtually all day in a tiny cell alone and hearing other prisoners being beaten; he explained that, of everything that was done to them, "solitary confinement was the worst experience of all of our lives."  Bauer then noted that they were imprisoned due solely to what he called the "32 years of mutual hostility between America and Iran," and said: "the irony is that [we] oppose U.S. policies towards Iran which perpetuate this hostility."  After complaining that the two court sessions they attended were "total shams" and that "we'd been held in almost total isolation - stripped of our rights and freedoms," he explained:

In prison, every time we complained about our conditions, the guards would remind us of comparable conditions at Guantanamo Bay; they'd remind us of CIA prisons in other parts of the world; and conditions that Iranians and others experience in prisons in the U.S.

We do not believe that such human rights violation on the part of our government justify what has been done to us: not for a moment.  However, we do believe that these actions on the part of the U.S. provide an excuse for other governments - including the government of Iran - to act in kind.

[Indeed, as harrowing and unjust as their imprisonment was, Bauer and Fattal on some level are fortunate not to have ended up in the grips of the American War on Terror detention system, where detainees remain for many more years without even the pretense of due process -- still -- to say nothing of the torture regime to which hundreds (at least) were subjected.]

Fattal then expressed "great thanks to world leaders and individuals" who worked for their release, including Hugo Chavez, the governments of Turkey and Brazil, Sean Penn, Noam Chomsky, Mohammad Ali, Cindy Sheehan, Desmond Tutu, as well as Muslims from around the world and "elements within the Iranian government," as well as U.S. officials.

Unsurprisingly, one searches in vain for the inclusion of these facts and remarks in American media accounts of their release and subsequent press conference.  Instead, typical is this ABC News story, which featured tearful and celebratory reactions from their family, detailed descriptions of their conditions and the pain and fear their family endured, and melodramatic narratives about how their "long, grueling imprisonment is over" after "781 days in Iran's most notorious prison."  This ABC News article on their press conference features many sentences about Iran's oppressiveness -- "Hikers Return to the U.S.: 'We Were Held Hostage'"; "we heard the screams of other prisoners being beaten" -- with hardly any mention of the criticisms Fattal and Bauer voiced regarding U.S. policy that provided the excuse for their mistreatment and similar treatment which the U.S. doles out both in War on Terror prisons around the world and even domestic prisons at home.

Their story deserves the attention it is getting, and Iran deserves the criticism.  But the first duty of the American "watchdog media" should be highlighting the abuses of the U.S. Government, not those of other, already-hated regimes on the other side of the world.  Instead, the abuses at home are routinely suppressed while those in the Hated Nations are endlessly touted.  There have been thousands of people released after being held for years and years in U.S. detention despite having done nothing wrong.  Many were tortured, and many were kept imprisoned despite U.S. government knowledge of their innocence.  Have you ever seen anything close to this level of media attention being devoted to their plight, to hearing how America's lawless detention of them for years -- often on a strange island, thousands of miles away from everything they know -- and its systematic denial of any legal redress, devastated their families and destroyed their lives?

This is a repeat of what happened with the obsessive American media frenzy surrounding the arrest and imprisonment by Iran of Iranian-American journalist Roxana Saberi, convicted in a sham proceeding of espionage, sentenced to eight years in prison, but then ordered released by an Iranian appeals court after four months.  Saberi's case became a true cause célèbre among American journalists, with large numbers of them flamboyantly denouncing Iran and demanding her release.  But when their own government imprisoned numerous journalists for many years without any charges of any kind -- Al Jazeera's Sami al-Haj in Guantanamo, Associated Press' Bilal Hussein for more than two years in Iraq, Reuters' photographer Ibrahim Jassan even after an Iraqi court exonerated him, and literally dozens of other journalists without charge -- it was very difficult to find any mention of their cases in American media outlets.

What we find here yet again is that government-serving American establish media outlets relish the opportunity to report negatively on enemies and other adversaries of the U.S. government (that is the same mindset that accounts for the predicable, trite condescension by the New York Times toward the Wall Street protests, the same way they constantly downplayed Iraq War protests).  But to exactly the same extent that they love depicting America's Enemies as Bad, they hate reporting facts that make the U.S. Government look the same.  

That's why Fattal and Bauer receive so much attention while victims of America's ongoing lawless detention scheme are ignored.  It's why media stars bravely denounce the conditions of Iran's "notorious prison" while ignoring America's own inhumane prison regime on both foreign and U.S. soil.  It's why imprisonment via sham trials in Iran stir such outrage while due-process-free imprisonment (and assassinations) by the U.S. stir so little.  And it's why so many Americans know Roxana Saberi but so few know Sami al-Haj. 

An actual watchdog press is, first and foremost, eager to expose the corruption and wrongdoing of their own government.  By contrast, a propaganda establishment press is eager to suppress that, and there is no better way of doing so than by obsessing on the sins of nations on the other side of the world while ignoring the ones at home.  If only establishment media outlets displayed a fraction of the bravery and integrity of Josh Fattal and Shane Bauer, who had a good excuse to focus exclusively on Iran's sins but -- a mere few days after being released from a horrible, unjust ordeal -- chose instead to present the full picture.


UPDATE:  Matt Bors expresses part of the point in comic form (h/t ckelly707)

Question about America's enemies

The Featured American Enemy of the Week is the Haqqani network in the Pakistan/Afghanistan border region.  The New York Times warns in a headline today: "Brutal Haqqani Crime Clan Bedevils U.S. in Afghanistan," and reports that military officials want "the group [put] on the State Department’s list of terrorist organizations."  Adm. Michael Mullen this week accused Pakistan's intelligence service (ISI) of aiding the Haqqani clan in carrying out Terrorist attacks on U.S. troops and a U.S. embassy in Afghanistan.  Earlier this morning, GOP Sen. Lindsey Graham suggested that a U.S. military attack on Pakistan might be needed in response, predicting that such an attack "will have a lot of bipartisan support on Capitol Hill" (does anyone doubt that?).

Needless to say, the villain mastermind who heads this network, Jalaluddin Haqqani, has, as the NYT put it, "allied himself over the years with the C.I.A."  It quoted "one former American intelligence official" who "worked with the Haqqani family in Afghanistan during the Soviet occupation in the 1980s"; that official "said he would not be surprised if the United States again found itself relying on the clan: 'You always said about them, ‘best friend, worst enemy'."  Earlier this year, Reuters described:

Former U.S. Congressman Charlie Wilson, whose relentless fund-raising for the Afghan resistance was depicted by Tom Hanks in the movie "Charlie Wilson's War," once called Jalaluddin "goodness personified." [Jalaluddin] even visited the White House when Ronald Reagan was president.

Reuters also noted that, back then, the U.S. used Pakistan's ISI to funnel money to the Haqqanis to enable them to buy weapons.  So the ISI's funding of the Haqqanis has been going on since the early 1980s; the only difference is that it is now done without U.S. participation.

Can you believe that Pakistan would involve itself with Goodness Personified such a treacherous Terrorist clan?  How evil must Pakistan be to lend support to the Haqqanis -- "the Sopranos of the Afghanistan war," says the NYT -- simply to advance its own interests?  What kind of country would do such a thing?  Worse, it seems Pakistan is now following in Iran's footsteps"interfering" in the American right to occupy its neighbor.  How dare Iran interfere in Iraq, and how dare Pakistan interfere in Afghanistan.

Of course, the reason a new Villain Mastermind is needed in that region is because the one who played that role for so long, Osama bin Laden, was just killed.  In July, 2004, the BBC reported on the origins of Al Qaeda and wrote: "During the anti-Soviet jihad Bin Laden and his fighters received American and Saudi funding. Some analysts believe Bin Laden himself had security training from the CIA." President Carter's National Security Adviser, Zbigniew Brzezinski, traveled to Afghanistan in 1979, met with bin Laden, and praised his mujadheen. And earlier this year, The New York Times' John Burns wrote about his first meeting with bin Laden in 1989, and this is what he reported:

In light of what transpired at Abbottabad, several things stand out: First, the fact that access to the camp lay through a C.I.A. contact involved in America's financing and arming of the mujahedeen; Bin Laden and his cohorts were then, at least notionally, America's men . . . [and] the close liaison, then and later, between the jihadis and the ISI, Pakistan's spy agency, which acted as a conduit for American and Saudi backing of the mujahedeen."

Indeed, Newsweek reported in late September, 2001, that Pakistan warned the U.S. about the effects of funding bin Laden and friends: 

[Before 9/11,] Terrorists were regarded by most people as criminals, wicked and frightening, but not as mortal enemies of the state. There was a kind of collective denial, an unwillingness to see how monstrous the threat of Islamic extremism could be.

In part, that may be because the government of the United States helped create it. . . . In the coming weeks, if and when American Special Forces helicopters try to land in the mountains of Afghanistan to flush out bin Laden, they risk being shot down by Stinger surface-to-air missiles provided to the Afghan rebels by the CIA. . . .

Half a world away, people who understood the ferocity of Islamic extremism could see the coming storm. In the late '80s, Pakistan's then head of state, Benazir Bhutto, told the first President George Bush, "You are creating a Frankenstein."

The last war in which the U.S. involved itself -- in Libya -- was fought for the profoundly humanitarian goal of removing the Evil Dictator Moammar Gadaffi from power (and not due to the bonanza of oil and other economic opportunities for U.S. corporations which the American Ambassador is now excitedly touting: that's just a purely coincidental by-product that has nothing whatsoever to do with Gadaffi's removal).  That Evil Libyan Dictator was someone with whom the U.S. quite recently extensively cooperated to render Terrorist suspects to be questioned and tortured, including -- rather awkwardly -- one of the leading rebels whom NATO just empowered, who was turned over to Gadaffi by the CIA to be tortured.

The U.S. fought a war in Iraq for similar reasons: to liberate the Iraqi people from the Hitlerian grip of Saddam Hussein.  Saddam was very scary because he had a lot of potent weapons . . . illicitly provided to him by the U.S. throughout the 1980s; as The Washington Post reported: "The administrations of Ronald Reagan and George H.W. Bush authorized the sale to Iraq of numerous items that had both military and civilian applications, including poisonous chemicals and deadly biological viruses, such as anthrax and bubonic plague."  That American support took place when Saddam was doing things like "gassing his own people," which would then be cited a decade later as to why Saddam had to be removed.  Heavy American arming of Iraq took place immediately after Iraq was taken off the list of Terrorist states so that the U.S. could fund and arm them; Iraq was quickly put back on that list once the U.S wanted to go to war with them (who says "Terrorism" is a meaningless term that the U.S. manipulates for its own ends?).

The Current Supreme American Enemy is Iran (U.N. Ambassador Susan Rice told Wolf Blitzer on Thursday that she was proud of walking out on the Iranian President's speech because what he "does and says when he comes to the United Nations is absolutely odious, hateful, anti-Semitic, unacceptable" and that "the United States is gravely concerned about Iran's nuclear program and its ambitions to have what we believe is [a] nuclear weapon").  But any military action against Iran would be quite tricky because of all those anti-tank and anti-aircraft missiles the U.S. secretly shipped to the regime (through Israel) during the Reagan years.

One reason Endless War is endless is because the U.S. is so adept at creating and strengthening the Enemies who then need to be dispatched (and that's independent of how American actions are the principal cause of the anti-U.S. animosity which ensures the War continues).  Orwell famously highlighted the propaganda that "we've always been at war with Eastasia," but does the U.S. ever have any enemies that it did not at some point in the recent past fund, arm and/or cooperate with extensively?  How many years until we hear a drumbeat of messaging about how necessary it is to wage war against that heinous, murderous, raping, racist Islamist regime in Tripoli -- the one the U.S. is arming and funding and just installed in power?

* * * * *

A secret journal maintained by Osama bin Laden and seized by American Special Forces after his death reveals his true motivation for launching Terrorist attacks against the U.S.

U.S. not "standing idly by" in Bahrain

President Obama, March 19, 2011:

We cannot stand idly by when a tyrant tells his people there will be no mercy.

President Obama, September 20, 2011, to the U.N.:

The United States will continue to support those nations that transition to democracy -- with greater trade and investment, so that freedom is followed by opportunity. We will pursue a deeper engagement with governments, but also civil society -- students and entrepreneurs; political parties and the press. We have banned those who abuse human rights from travelling to our country, and sanctioned those who trample on human rights abroad. And we will always serve as a voice for those who have been silenced.

BBC, February 18, 2011:

Bahraini security forces have opened fire on anti-government protesters, witnesses and opposition activists say.

The protesters were fired on after they had gathered in the capital Manama from the funerals of demonstrators killed in a security crackdown earlier this week.

Witnesses said the army fired live rounds and tear gas, and officials said at least 120 people had been hurt.

Reuters, March 16, 2011:

At least five protesters have been killed and hundreds wounded in a crackdown by Bahraini forces on Wednesday, the head of the Shi'ite Muslim opposition bloc in parliament said.

"This is a war of annihilation. This does not happen even in wars and this is not acceptable," Abdel Jalil Khalil, a senior politician in Bahrain's largest Shi'ite party Wefaq, said.

The Guardian, May 11, 2011:

Bahrain's oil company has fired almost 300 employees for taking part in anti-government protests and general strikes in recent weeks, the Gulf kingdom's energy minister has said.

Abdulhussain bin Ali Mirza -- who also serves as the chief executive of the state-owned Bahrain Petroleum Company (BAPCO) -- said 293 employees have been dismissed since the King declared martial law on 15 March to quell weeks of demonstrations.

New York Times, August 5, 2011:

Bahrain, the tiny but strategically important Persian Gulf monarchy that has sought for months to suppress an Arab Spring-inspired uprising, is engaged in a heated dispute with one of the world's foremost medical relief organizations, which has stopped working there after accusing Bahraini security forces of raiding its premises last week.

The accusation by the organization, Doctors Without Borders, has been challenged by Bahrain's Health Ministry. But the sensitivities surrounding the dispute over the July 28 raid speak to what human rights activists call a particularly odious aspect of the Bahraini protests: the government’s systematic effort to deny medical services to wounded protesters -- partly by jailing or intimidating the doctors, nurses and paramedics who have tried to treat them.

Many medical workers in Bahrain are often too frightened to help protesters, activists say, and the wounded themselves are often too frightened to seek help, fearing they will be arrested.

At the height of the protests, led by the kingdom’s Shiite majority, seeking more rights from the Sunni monarchy, security forces commandeered the Salmaniya Medical Complex, Bahrain's largest public hospital. Dozens of doctors and nurses who treated protesters were arrested.

In a report last month, Human Rights Watch said the crackdown included "attacks on health care providers; denial of medical access to protesters injured by security forces; the siege of hospitals and health centers; and the detention, ill-treatment, torture and prosecution of medics and patients with protest-related injuries." It called the attacks "part of an official policy of retribution against Bahrainis who supported pro-democracy protests."

Human Rights Watch, yesterday:

Authorities then initiated a large-scale campaign of retribution in which more than 2,500 people were dismissed from their jobs, including teachers, medics, and other professionals. The special military court established under the decree has convicted more than 100 people, most of them for patently political offenses such as criticizing the ruling Al Khalifa family. Many of those detained have alleged that they were subjected to torture, and four people died in custody, apparently from torture and medical neglect. Leading political opposition figures have been sentenced to long prison terms, in some cases for life, solely for their role in organizing the large street protests; their trial record does not link them in any way to acts of violence or any other recognizable criminal offense. . . .

The government has prevented Human Rights Watch from visiting the country since mid-April, and tightly restricts access for journalists and other rights groups.

The Pentagon's Defense Security Cooperation Agency, September 14, 2011:

In fairness, the U.S. is fulfilling President Obama's pledge that it will "not stand idly by" in the face of a tyrant's oppression of his own people, as the U.S. is actively feeding that regime new weapons; that, by definition, is not "standing idly by."  In his U.N. address, President Obama praised the regime ("steps have been taken toward reform and accountability") but then powerfully added: "more are required"; he also then equated the two sides: the government's security forces and democracy activists on whom they're firing and otherwise persecuting ("America is a close friend of Bahrain, and we will continue to call on the government and the main opposition bloc – the Wifaq – to pursue a meaningful dialogue").  I think it's important to remind everyone that the reason there is so much anti-Americanism in that part of the world is because they're primitive, ungrateful religious fanatics who Hate Our Freedom.

* * * * *

Three related notes: 

(1) Joe Trippi, the former campaign manager for Howard Dean and now a Fox News Democrat, is on the payroll of the regime in Bahrain, doing P.R. work for them; Trippi told Salon's Justin Elliott that he "had no problem working for them" because "this is one of the progressive countries in the Middle Eastern Gulf"; Trippi -- who now also works for Massachusetts Democratic Senate candidate Bob Massie -- also touted the fact that on his Twitter avatar, he shaded his face with the color green to express solidarity with Iranian protesters, which is proof of how much he loves democracy;

(2) as the regime in Yemen continues to slaughter protesters, it's worth reviewing this recently released WikiLeaks cable from 2005 detailing the mighty impressive list of weaponry supplied by the U.S. to that regime; it's important to remember, though, that WikiLeaks and Bradley Manning are the real criminals and it would be better for us not to know;

(3) Newsweek's Eli Lake reports that in 2009, as President Obama was publicly pressuring Israel to stop settlement building, he "secretly authorized significant new aid to the Israeli military that includes the sale of 55 deep-penetrating bombs known as bunker busters," which could be "potentially useful in any future military strike against Iranian nuclear sites" and thus might "be seen [by Israel and/or Iran] as a green light for Israel to attack Iran’s secret nuclear sites one day."  The Bush administration rebuffed Israel's requests for those weapons but ultimately indicated it might deliver them in 2009 or 2010, which is why Obama's authorization was necessary.

Dennis G. Jacobs: Case study in judicial pathology

The last decade has spawned a massive expansion of the domestic Surveillance State.  Worse, the U.S. Government has vested itself with the virtually unchallenged ability to operate this surveillance regime in full secrecy and even beyond the reach of judicial review, which is another way of saying: above and beyond the rule of law. 

Each time U.S. citizens in the post-9/11 era have accused government officials in federal court of violating the Constitution or otherwise acting illegally with how they spy on Americans, the Justice Department employs one of two secrecy weapons to convince courts they must not even rule on the legality of the domestic spying: (1) they insist the spying program is too secret to allow courts even to examine it (the Bush/Obama rendition of the "state secrets" privilege); and/or (2) because the spying is conducted in complete secrecy, nobody can say for certain that they have been subjected to it, and the DOJ thus argues that the particular individuals suing the Government -- and, for that matter, everyone else in the country -- lacks "standing" to challenge the legality of the spying (because nobody knows on whom we're spying, nobody has the right to sue us for breaking the law)

A government that can spy on its own citizens without judicial review is a government which, by definition, operates outside of the rule of law; as Alexander Hamilton put it in Federalist 15:

It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.

These are the two secrecy doctrines which the Bush and Obama DOJ have repeatedly invoked to shield even the Bush NSA warrentless eavesdropping program from all forms of legal accountability, notwithstanding the fact that three separate federal judges ruled (ultimately without consequence due to reversals on secrecy grounds) that the program violated the Constitution and/or criminal laws such as FISA.  Most amazingly, the Obama DOJ has aggressively used these same secrecy doctrines to ensure that no courts ever review or adjudicate any government surveillance programs, including Bush's NSA warrantless program, even though then-Sen. Obama -- when opposing the 2005 nomination of NSA Chief Michael Hayden to become CIA Director -- accused Bush of breaking the law in spying on Americans without warrants and then said this on the Senate floor:

We don't expect the President to give the American people every detail about a classified surveillance program. But we do expect him to place such a program within the rule of law, and to allow members of the other two coequal branches of government - Congress and the Judiciary - to have the ability to monitor and oversee such a program. Our Constitution and our right to privacy as Americans require as much.

In 2008, the Democratic Congress enacted the FISA Amendments Act, which not only retroactively immunized telecoms from all liability for their role in Bush's illegal eavesdropping programs (thus terminating all pending lawsuits and ensuring no judicial adjudication of that program), but also, going forward, legalized much of Bush's previously illegal warrantless spying activities.  The FAA was the most drastic expansion of government eavesdropping powers in decades.  Numerous scholars documented how blatantly the new surveillance powers it vested violated the Fourth Amendment (the FAA was the bill which candidate Obama, when seeking the Democratic nomination, had unambiguously promised to filibuster, only to turn around, once he secured his Party's nomination, and vote against a filibuster and then in favor of the underlying bill). 

* * * * * 

When Congress enacts a law vesting new domestic spying powers in the NSA that very likely violate the Fourth Amendment, the only solution -- at least in theory, as the American system is designed -- is for citizens to sue the Government in federal court and argue that the new law is unconstitutional.  The Supreme Court unanimously explained back in 1803 in Marbury v. Madison (emphasis added):

It is emphatically the duty of the Judicial Department to say what the law is. . . .If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. . . .

[W]here a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.

That's as basic as it gets to the ostensible American design.  If citizens are not able to do that -- if they have no mechanism to deny the Government the power to transgress the limits imposed by the Constitution -- what is the point of even having a Constitution?

Immediately after Bush signed the FAA into law, numerous journalists, human rights activists, and groups such as Amnesty International -- represented by the ACLU -- adhered to this design by suing the U.S. government, claiming that the FAA was unconstitutional under the Fourth Amendment.  They argued that although the secrecy behind which the program was conducted prevented them from proving that they were subjected to it, their well-founded fear that they would be (and the steps they were forced to take in response) was enough harm to confer "standing" on them and allow them to challenge the law's constitutionality.

In response, the Bush DOJ raised its standard secrecy claims and convinced a lower court judge to dismiss the suit based on "standing."  When the ACLU appealed this ruling to the Second Circuit Court of Appeals in New York, the Obama DOJ raised the same arguments to demand dismissal.  But in March, a unanimous three-judge appellate panel rejected the Bush/Obama argument and reinstated the ACLU's lawsuit, holding that the plaintiffs' credible fear of being subjected to the FAA's eavesdropping power entitled them to proceed with their claims that the new law was unconstitutional.  The Obama DOJ then sought a review of that decision by the entire Circuit, insisting that plaintiffs should be barred from contesting the constitutionality of the FAA.

Yesterday, the full Second Circuit panel issued its ruling on the Obama DOJ's request.  Six of the judges voted against a full review of the decision by the three-judge panel, while six voted in favor of reviewing it.  Because a majority is needed for a full-circuit review, the 6-6 tie means that there will no further review, and the March decision of the three-judge panel -- allowing the lawsuit challenging the FAA's constitutionality to proceed -- will stand.  This significant victory for the rule of law may well be temporary, as the unusual 6-6 vote (and the numerous contentious opinions accompanying the vote) makes it likely (though by no means guaranteed) that the Supreme Court will accept this standing dispute for resolution.  But at least for now, this is a good and important development.

* * * * * 

The bulk of the opinions issued by the Second Circuit judges were devoted to fairly standard arguments over the requirements of "standing."  Here, for instance, was the crux of the argument for recognizing plaintiffs' standing, as expressed by Judge Gerard Lynch after he reviewed the Goverment's substantive arguments for why the FAA was constitutional:

The dissenting judges argued that mere fear of being subjected to this spying was insufficient to allow plaintiffs to sue; instead, they must prove they have been or will be spied upon (that nobody can prove this, due to the secrecy in which the program is shrouded, is a Kafkaesque Catch-22 of no apparent concern to these jurists).

But by far the most remarkable aspect of this ruling was the dissenting opinion issued by Dennis G. Jacobs, the Chief Judge of the Second Circuit.  Notably, no other judges joined the Chief Judge's opinion, and it's not difficult to see why.  Jacobs' opinion is one of the most intemperate, childish, nakedly ideological, and just plain obnoxious judicial outbursts you will ever encounter in writing.  But it highlights some important facts about the federal judiciary that make it worth examining.

After accusing the plaintiffs of harboring anti-Americanism for daring to enforce the mandates of the United States Constitution against precisely the activities most feared by the American Founders: unchecked domestic government spying (Jacobs announced his discovery that the plaintiffs' argument rests on a "buried assumption that the United States is the only threat to liberty that anyone anywhere needs to worry about"), he turned his scornful ire to the ACLU for the crime of representing these plaintiffs -- for free -- in a lawsuit to enforce the privacy rights of all American citizens.  Unprovoked, Jacobs posed the question of what could possibly motivate the ACLU and its clients to bring this lawsuit -- apparently, an actual belief that the law is unconstitutional and dangerous could not possibly be the real motive -- and this is the answer he supplied:

At the risk of being obvious, the purpose of this lawsuit is litigation for its own sake -- for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable. As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.

Apparently, only "fantasies of persecution" -- as opposed to the most basic knowledge of history -- can lead someone to believe that spying powers conducted in secret will be abused.  He then added that this Constitutional challenge to the Government's secret spying powers "bears similarity to a pro se plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar."  Not content with maligning their motives and patriotism, he then all but accused the ACLU and its clients of lying in order to sustain the lawsuit ("these affidavits employ all the lawyer's arts to convey a devious impression . . . affidavits that are craftily worded to skirt actual falsehood").

* * * * *

Let's spend a moment comparing Dennis G. Jacobs to the ACLU lawyers whose alleged motives he just smeared based on his armchair assessments of their psychology (all while ironically criticizing them for "pretenses" to "expertise" for "which they are not fitted by experience").  This comparison not only demonstrates how deceitful and malicious is his attack, but it also speaks volumes about the corrupted role the federal judiciary is playing in our system of government.

Virtually every ACLU lawyer is very smart and well-educated; for instance, the lead ACLU lawyer in this case, Jameel Jaffer, is a graduate of Cambridge University and Harvard Law School, where he served as an editor of its law review.  Every one of these lawyers could therefore easily have joined (and could still join) the nation's most lucrative Wall Street law firms, or enter government and serve in various functionary capacities -- presumably what they would do if actually motivated by a need for self-importance, policy influence or financial gain, as Jacobs accuses. 

Instead, they labor very long hours in exchange for a salary that is a small fraction of what they could earn at any moment they choose.  They work for a non-profit organization that is systematically excluded from the halls of Washington power, often representing the most marginalized, powerless, and scorned segments of society (which, by definition, are most vulnerable to rights abridgments).  They do so knowing that they will be continuously smeared and maligned in the most vicious, McCarthyite and public ways by the Dennis Jacobses -- or the Lee Atwaters and Weekly Standards -- of the world.  Nobody with their background and opportunities would do that for any reason other than genuine convictions about basic Constitutional liberties and a passionate commitment to defending them, thus fulfilling what Thomas Paine, in his 1790 Dissertations on First Principles in Government, described as the prime duty for preserving freedom for everyone (a passage Dennis Jacobs, if he would ever read it, would likely castigate as "fantasies of persecution"):

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

All of that stands in very stark contrast to Dennis G. Jacobs.  Immediately after graduating law school, he went to work for a large Wall Street law firm -- Simpson, Thacher & Bartlett -- and stayed there for the next 19 years, until George Bush 41 appointed him to a life-tenured federal judgeship.  How noble.  So the entirety of Jacobs' law career before becoming a judge was devoted to snorting up as much cash as he could as he represented large corporations and banks.  That's the person who just anointed himself the arbiter and smearer of the integrity, psychology and motives of ACLU lawyers and their human-rights-activists clients for daring to challenge a government spying law on Fourth Amendment grounds.

But far more notable is that Jacobs has remained every bit as loyal -- indeed, more so -- to these large corporate institutions as a federal judge.  He has developed a bizarre contempt for pro bono legal work: i.e., lawyers who work for free on behalf of poor and otherwise marginalized clients against the types of clients Jacobs enriched himself representing, in order to provide some minimal degree of fairness and balance in the justice system.  In 2008, Jacobs delivered a speech to the right-wing Federalist Society mocking and scorning pro bono work -- he entitled the speech "Pro Bono for Fun and Profit" -- and began by depicting himself as some sort of courageous, politically incorrect martyr for bravely attacking pro bono lawyers in front of this right-wing audience:

When lawyers gather and judges speak, you can count on hearing something on the subject of pro bono service. It is always praise of all that is done, with encouragement to do more.  This evening I am going to articulate a view that you may not have heard: I will touch on some of the anti-social effects of some pro bono activity.

He then devoted his entire speech to attacking lawyers who challenge government acts as unconstitutional and those who bring civil rights cases on behalf of large numbers of discriminated-against citizens.  Most of the rhetoric he spat yesterday at the ACLU, Amnesty and others in his "judicial opinion" was just pre-packaged politicized tripe that he delivered years ago to the Federalist Society.  He's on a one-man ideological crusade to convince the nation of the evils of pro bono work and, especially, effective challenges to government and corporate power.

In 2010, Jacobs again appeared before the Federalist Society's annual conference and delivered the "Barbara K. Olsen Memorial Lecture," named after the Fox News legal scholar who spent the 1990s churning out every tawdry allegation against Bill and Hillary Clinton before she died in the 9/11 attack.  Ironically, Jacobs delivered a 2006 speech -- entitled "The Secret Life of Judges" -- in which he purported to reveal a pervasive "bias" among the judiciary: reliance on law and legal procedure in lieu of policy judgments. 

Of course, Jacobs is the living, breathing embodiment of judicial bias: a devoted servant to corporate and government power, a right-wing hack who barely attempts to hide his political loyalties, and -- most of all -- a declared enemy of the very few mechanisms that exist to enable the poor and marginalized to receive competent legal representation and for political power to be subject to some minimal checks (what we call "the Constitution").  It should be anything but surprising that a corporate-serving, political-power-revering, highly politicized figure like this produces judicial opinions that are slightly more restrained versions of a Rush Limbaugh or Bill O'Reilly rant.  He churns out right-wing agitprop masquerading as legal reasoning.

But the reason he's worth examining is because he's anything but aberrational.  He's the Chief Judge of the second- or third-most important court in the country.  He works in a judicial system that more and more does the opposite of what it was ostensibly designed to do: it is now devoted to shielding political officials from legal accountability and transparency rather than exposing them to it, enabling rather than halting transgressions of the Constitutional limits imposed on them, and most of all, further empowering the most powerful factions against the least powerful rather than equalizing the playing field.  In that regard, the life of Dennis G. Jacobs -- and his slanderous, contemptuous outburst of yesterday -- should be studied as a perfect embodiment of how the American judicial branch has become so corrupted as a tool for the nation's most powerful factions.

Jose Padilla and how American justice functions

(updated below - Update II)

The story of Jose Padilla, continuing through the events of yesterday, expresses so much of the true nature of the War on Terror and especially America's justice system.  In 2002, the American citizen was arrested at Chicago's O'Hare Airport, publicly labeled by John Ashcroft as The Dirty Bomber, and then imprisoned for the next three years on U.S. soil as an "enemy combatant" without charges of any kind, and denied all contact with the outside world, including even a lawyer.  During his lawless incarceration, he was kept not just in extreme solitary confinement but extreme sensory deprivation as well, and was abused and tortured to the point of severe and probably permanent mental incapacity (Bush lawyers told a court that they were unable to produce videos of Padilla's interrogations because those videos were mysteriously and tragically "lost").

Needless to say, none of the government officials responsible for this abuse of a U.S. citizen on American soil has been held accountable in any way.  That's because President Obama decreed that Bush officials shall not be criminally investigated for War on Terror crimes, while his Justice Department vigorously defended John Yoo, Donald Rumsfeld and other responsible functionaries in civil suits brought by Padilla seeking damages for what was done to him. 

As usual, the Obama DOJ cited national security imperatives and sweeping theories of presidential power to demand that Executive Branch officials be fully shielded from judicial scrutiny (i.e., shielded from the rule of law) for their illegal acts (the Obama DOJ: "Here, where Padilla's damage claims directly relate, inter alia, to the President’s war powers, including whether and when a person captured in this country during an armed conflict can be held in military detention under the laws of war, it would be particularly inappropriate for this Court to unnecessarily reach the merits of the constitutional claims" (emphasis added)).  With one rare exception, federal courts, as usual, meekly complied.  Thus, a full-scale shield of immunity has been constructed around the high-level government officials who put Padilla in a hermetically sealed cage with no charges and then abused and tortured him for years.

The treatment Padilla has received in the justice system is, needless to say, the polar opposite of that enjoyed by these political elites.  Literally days before it was required to justify to the U.S. Supreme Court how it could imprison an American citizen for years without charges or access to a lawyer, the Bush administration suddenly indicted Padilla -- on charges unrelated to, and far less serious than, the accusation that he was A Dirty Bomber -- and then successfully convinced the Supreme Court to refuse to decide the legality of Padilla's imprisonment on the grounds of "mootness"  (he's no longer being held without charges so there's nothing to decide). 

At Padilla's trial, the judge excluded all evidence of the abuse to which he was subjected and even admitted statements he made while in custody before he was Mirandized.  Unsurprisingly, Padilla was convicted on charges of "supporting Islamic terrorism overseas" -- but not any actual Terrorist plots ("The government’s chief evidence was an application form that government prosecutors said Mr. Padilla, 36, filled out to attend an Al Qaeda training camp in Afghanistan in 2000") -- and then sentenced to 17 years in prison, all above and beyond the five years he was imprisoned with no due process.

Not content with what was done to Padilla, the Bush DOJ -- and then the Obama DOJ -- contested the sentence on appeal, insisting that it was too lenient; Padilla also appealed, arguing that the trial court made numerous errors in excluding his evidence while allowing the Government's.  Yesterday, a federal appeals panel of the 11th Circuit issued a ruling, by a 2-1 vote, rejecting each and every one of Padilla's arguments.  It then took the very unusual step of vacating the 17-year-sentence imposed by the trial court as too lenient and, in effect, ordered the trial judge to impose a substantially harsher prison term:

Padilla’s sentence is substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors . . . .

As the dissenting judge explained, this decision is extraordinary because trial judges -- not judges sitting afterward on appeal -- are the ones who hear all the evidence and thus have very wide discretion to determine the appropriate sentence.  But more so, in this case, a sentence less than the full maximum was warranted because "the trial judge correctly concluded that a sentence reduction is available to offenders who have been subjected to extraordinarily harsh conditions of pre-trial confinement."  About that point, the dissenting judge documented:

Padilla presented substantial, detailed, and compelling evidence about the inhumane, cruel, and physically, emotionally, and mentally painful conditions in which he had already been detained for a period of almost four years. For example, he presented evidence at sentencing of being kept in extreme isolation at the military brig in South Carolina where he was subjected to cruel interrogations, prolonged physical and mental pain, extreme environmental stresses, noise and temperature variations, and deprivation of sensory stimuli and sleep.

In sentencing Padilla, the trial judge accepted the facts of his confinement that had been presented both during the trial and at sentencing, which also included evidence about the impact on one's mental health of prolonged isolation and solitary confinement, all of which were properly taken into account in deciding how much more confinement should be imposed. None of these factual findings, nor the trial judge's consideration of them in fashioning Padilla's sentence, are challenged on appeal by the government or the majority.

Thus: American officials who are responsible for this "inhumane" and "cruel" abuse of detainees act with full impunity, as usual.  Those who are its victims are not merely denied all redress (though they are), and do not merely have the courthouse doors slammed in their faces in the name of secrecy, national security and presidential power (though they do), but they are also mercilessly punished to the fullest extent possible.

It should be said that part of what happened here is just the typical politicization of the judiciary, as the two-judge majority was comprised of a hard-core right-wing Reagan/Bush 41 appointee from Alabama (Joel Dubina), while the other was one of Bush 43's most controversial appointees, the former Alabama Attorney General who was filibustered by the Democrats and allowed onto the bench only by virtue of the "Gang of 14" compromise (William Pryor).  Meanwhile, the dissenting judge was born in Mexico to Syrian parents and, after moving to Miami at the age of 6, became the first female judge (as well as the first Hispanic and Arab American judge) on the Florida Supreme Court (rising to Chief Justice), and was a Clinton appointee to the federal appeals court (Rosemary Barkett); Barkett, incidentally, dissented from an 11th Circuit ruling denying a habeas petition to Troy Davis, the African-American death row inmate scheduled to be executed by the State of Georgia this week despite mountains of evidence showing his innocence.  So this episode highlights one of the few genuine differences that remain between the two parties that can truly impact people's lives: their judicial appointments. 

But the overriding theme is what we have seen time and again, that which -- as it turns out -- is the subject of my book to be released next month: America is plagued by a two-tiered justice system in which political and financial elites enjoy virtually absolute immunity for even the most egregious of crimes, while ordinary Americans (and especially fully stigmatized ones like Padilla) are subject with few defenses to the world's largest and one of its most merciless systems of punishment.  Thus do Jose Padilla's lawless jailers and torturers walk free and prosper, while no punishment is sufficiently harsh for him. 

* * * * *
Almost immediately after I published this, it was announced that Troy Davis' last chance for clemency has been denied, virtually assuring that a likely innocent man will be killed by the State of Georgia tomorrow.  Obviously, everything I just wrote applies in abundance to that event.


UPDATE:  As usual, America's propaganda-spreading, government-serving establishment media spouts blatant falsehoods to justify all this; from ABC News:

From CNN:


Padilla was never even charged with, let alone convicted of, having anything to do with a "dirty bomb."  "Dirty Bomber" was the villain nickname given to him by Bush officials and mindlessy repeated by its media to justify the treatment to which he was subjected.  The U.S. Government gave up long ago using this accusation to demonize him (NYT on his conviction: "The dirty bomb accusations were not mentioned during Mr. Padilla's three-month trial here"), but their lying "watchdog media" servants continue unabated.  Who would possibly object to a longer prison term for A Dirty Bomber who tried to detonate radioactive weapons in American cities?  The fact that not even the Government charged hi with that is no deterrent to its media continuing to claim he did.


UPDATE II:  Padilla was consigned to the SuperMax prison in Florence, Colorado to serve his 17-year sentence.  The New York City Bar Association last week issued a comprehensive study of America's SuperMax system and concluded:

But 17 years in a torture system like that -- on top of the 5 years of abuse he endured -- is insufficient: "too lenient."

U.S. to build new massive prison in Bagram

As the Obama administration announced plans for hundreds of billions of dollars more in domestic budget cuts, it late last week solicited bids for the construction of a massive new prison in Bagram, Afghanistan.  Posted on the aptly named FedBizOps.Gov website which it uses to announce new privatized spending projects, the administration unveiled plans for "the construction of Detention Facility in Parwan (DFIP), Bagram, Afghanistan" which includes "detainee housing capability for approximately 2000 detainees."  It will also feature "guard towers, administrative facility and Vehicle/Personnel Access Control Gates, security surveillance and restricted access systems."  The announcement provided: "the estimated cost of the project is between $25,000,000 to $100,000,000."

In the U.S., prisons are so wildly overcrowded that courts are ordering them to release inmates en masse because conditions are so inhumane as to be unconstitutional (today, the FBI documented that a drug arrest occurs in the U.S. once every 19 seconds, but as everyone knows, only insane extremists and frivolous potheads advocate an end to that war).  In the U.S., budgetary constraints are so severe that entire grades are being eliminated, the use of street lights restricted, and the most basic services abolished for the nation's neediest.  But the U.S. proposes to spend up to $100 million on a sprawling new prison in Afghanistan.

Budgetary madness to the side, this is going to be yet another addition to what Human Rights First recently documented is the oppressive, due-process-free prison regime the U.S. continues to maintain around the world:

Ten years after the September 11 attacks, few Americans realize that the United States is still imprisoning more than 2800 men outside the United States without charge or trial. Sprawling U.S. military prisons have become part of the post-9/11 landscape, and the concept of "indefinite detention" -- previously foreign to our system of government -- has meant that such prisons, and their captives, could remain a legacy of the 9/11 attacks and the "war on terror" for the indefinite future. . . . .

The secrecy surrounding the U.S. prison in Afghanistan makes it impossible for the public to judge whether those imprisoned there deserve to be there. What’s more, because much of the military's evidence against them is classified, the detainees themselves have no right to see it. So although detainees at Bagram are now entitled to hearings at the prison every six months, they're often not allowed to confront the evidence against them. As a result, they have no real opportunity to contest it.

In one of the first moves signalling just how closely the Obama administration intended to track its predecessor in these areas, it won the right to hold Bagram prisoners without any habeas corpus rights, successfully arguing that the Supreme Court's Boumediene decision -- which candidate Obama cheered because it guaranteed habeas rights to Guantanamo detainees -- was inapplicable to Bagram.  Numerous groups doing field work in Afghanistan have documented that the maintenance of these prisons is a leading recruitment tool for the Taliban and a prime source of anti-American hatred.  Despite that fact -- or, more accurately (as usual), because of it -- the U.S. is now going to build a brand new, enormous prison there.

One last point: recall how many people insisted that the killing of Osama bin Laden would lead to a drawdown in the War on Terror generally and the war in Afghanistan specifically.  Since then -- in just four months since bin Laden's corpse was dumped into the ocean -- the U.S. has done the following:  renewed the Patriot Act for four years with no reforms; significantly escalated drone attacks in Yemen, Somalia and Pakistan; tried to assassinate U.S. citizen Anwar al-Awlaki with no due process; indicted a 24-year-old Muslim for "material support for Terrorism" for uploading an anti-American YouTube clip after he talked to the son of a Terrorist leader; pressured Iraq to keep U.S. troops in that country; argued that it has the virtually unlimited right to kill anyone it wants anywhere in the world; and now finalized plans to build a sprawling new prison in Afghanistan.  If that's winding things down, I sure would hate to see what a redoubling of the American commitment to Endless War looks like.

The Geithner mystery solved

(updated below - Update II)

Reviewing "Confidence Men" -- Ron Suskind's new book critically examining President Obama's management of the financial crisis -- The New York Times' Michiko Kakutani ponders this mystery raised by Suskind:

[] Mr. Suskind suggests that the administration's problems in dealing with the fiscal crisis began with the president's choice of his economic team. He wonders why Mr. Obama turned away from the advisers who had seen him through the campaign (including more progressive thinkers like Mr. Stiglitz, Robert Reich and Austan Goolsbee), and relied instead on two men associated with the deregulatory policies of the past, Mr. Geithner, the Treasury secretary, and Mr. Summers, the chief economic adviser. Both men had served in the Clinton administration (with Treasury Secretary Robert E. Rubin, who would later join Citigroup as a senior adviser and board member); their actions, Mr. Suskind contends, "had contributed to the very financial disaster they were hired to solve."

Of course, one might ask the same of Obama's penchant for filling the most important positions in his administration -- including his Vice President, Secretary of State, and Defense Secretary -- with supporters of the Iraq War.  But about Geithner, Suskind unwittingly solved the mystery he raised: Kakutani notes that "one top banker quoted in these pages refers to [Geithner] as 'our man in Washington' for helping avert more systemic changes affecting Wall Street."

Geithner wasn't chosen and hasn't remained despite being "associated with the deregulatory policies of the past" and despite being the bankers' "man in Washington."  He is empowered precisely because of those facts, as was pointed out even before Obama's inauguration.  That Geithner and Summers were empowered after enabling the financial crisis through Wall Street subservience isn't a mystery; it's the explanation. (And just by the way, replacing the word "despite" with the phrase "because of" is -- in general -- one of the most valuable tools for translating Washington propaganda into reality; here is an excellent example showing how that works, from the first paragraph of a New York Times article two weeks ago:

Documents found at the abandoned office of Libya’s former spymaster appear to provide new details of the close relations the Central Intelligence Agency shared with the Libyan intelligence service -- most notably suggesting that the Americans sent terrorism suspects at least eight times for questioning in Libya despite that country's reputation for torture.

Note how the paragraph instantly transforms from misleading nonsense into obvious truth simply by changing "despite" to "because of"; this repeatedly is an effective instrument for deciphering propaganda -- e.g., the U.S. continues to brutalize people in the Muslim world "despite" the fact that doing so produces more Terrorism and thus ensures Endless War.)

Perhaps most notable about the Suskind chapter on which Kakutani focuses is the process by which Obama featured progressive economists during the campaign, only to immediately subordinate them to Wall-Street-subservient officials once in power.  Feigning progressive leanings for political gain is Obama's modus operandi; as Matt Taibbi recently put it in explaining why he no longer listens to Obama's speeches:

I remember following Obama on the campaign trail and hearing all sorts of promises before union-heavy crowds. He said he would raise the minimum wage every year; he said he would fight free-trade agreements. He also talked about repealing the Bush tax cuts and ending tax breaks for companies that move jobs overseas.

It's not just that he hasn't done those things. The more important thing is that the people he's surrounded himself with are not labor people, but stooges from Wall Street. Barack Obama has as his chief of staff a former top-ranking executive from one of the most grossly corrupt mega-companies on earth, JP Morgan Chase. He sees Bill Daley in his own office every day, yet when it comes time to talk abut labor issues, he has to go out and make selected visits twice a year or whatever to the Richard Trumkas of the world.

Listening to Obama talk about jobs and shared prosperity yesterday reminded me that we are back in campaign mode and Barack Obama has started doing again what he does best -- play the part of a progressive. He's good at it. It sounds like he has a natural affinity for union workers and ordinary people when he makes these speeches. But his policies are crafted by representatives of corporate/financial America, who happen to entirely make up his inner circle.

That's why -- after 2 1/2 years -- we suddenly see an outburst of "fighting for jobs" and, now, a call to raise taxes on the rich.  He does that precisely because everyone -- especially the rich -- knows it will not and cannot happen.  We're now formally in (re-)election season, so it's time again to haul out the progressive music.  Some Democrats are honest and cynical enough to acknowledge that Obama is doing all these things purely for political gain and -- because his re-election is their top priority -- to celebrate it even while acknowledging it will never become reality (see here and here as examples).  From that perspective, I suppose having him give speeches where he advocates for jobs and taxes on the rich is preferable to his endorsing austerity and Reaganomics as he had been doing for months  But whatever else is true, none of this presages an actual change in how the government functions or, especially, on whose behalf it labors.  That's precisely why he feels free to advocate such things without alienating his funding base.  It's still the government of Tim Geithner and his bosses/owners; election season (combined with rising elite fear of social unrest) just requires a bit more pretense to obscure that fact.


UPDATE:  In November 2008, when progressive economists and opinionists were warning that Geithner and Summers were far too subservient to Wall Street, the prescient geniuses at The New Republic produced this (more text here):

That writers at the pro-war, Lieberman-revering, party-apparatchik TNR have again become the leading lights of progressive punditry -- watch how often Obama-supporting Beltway pundits cite and echo them -- speaks volumes about where establishment progressive opinion is in the Age of Obama.

UPDATE II: VastLeft expresses some of this in cartoon form:

As indicated, I at least appreciate the candor of those (such as the above-linked commentators) who acknowledge that this will not become reality and is not even designed to, but celebrate it because it will help Obama get re-elected by making the GOP (rather than him) look like the servants of Wall Street.  It's the ones pretending that this eleventh-hour election-time awakening is reflective of some sort of substantive significance that are hard to bear.