Jay Rosen on "The Toobin Principle"

Jay Rosen of NYU has a nice essay on the inability of pundits like Jeffrey Toobin to tolerate support for Edward Snowden. Here are some of my thoughts:

Despite the appearance of contradiction (and while there is a tension), one can be consistent in thinking that the debate resulting from Snowden's leaks is good although Snowden's actions themselves are bad.

Jeffrey Toobin seems conservative to me. He certainly falls within the spectrum of standard American thinking where actions are justified instrumentally — by virtue of the good outcomes those actions produce. (The most dogmatically held example of this in the US is the conviction that enormous inequality is justified by the 'trickle down' effect.) So if the debate resulting from Snowden's actions is a good thing, Toobin must believe there is some overriding negative outcome that makes Snowden's actions bad. This could be a coherent argument, but neither Toobin nor others attacking Snowden make it because there is little real argument nor any wish for such in the mainstream about Snowden.

My suspicion regarding Toobin's (and others') distress over Snowden's leaks is threefold:

1. Toobin and many journalists, scholars, observers like him (e.g., Matt Yglesias, Chris Hayes, David Gregory, etc.) deeply, personally identify with power, especially Washington ("This Town", as Mark Leibovich has described). They have powerful incentives to do so; their wellbeing as pilot fish depends on that of the sharks.
2. They therefore see criticism of Obama or the US government as criticism of themselves.
3. They are profoundly unable to conceive of the possibility that American leaders, in government or business, might be guilty of really awful wrongdoing. This is why years ago, for example, Toobin could casually attack OJ Simpson before the facts were in, but cannot criticize any American leader, like Obama, as a plausible candidate for war crimes charges.

Snowden or Wikileaks generate cognitive dissonance for the Toobins in America. They resolve the dissonance with just-so stories that exonerate American power. If they actually thought about it, they could construct a coherent argument. They are unaccustomed to doing so because the US culture is one that bitterly rejects challenges to power, fashion, wealth, fame.

"[D]emocracy here at home must be balanced against the requirements of security." What would be the response to: "Security here at home must be balanced against the requirements of democracy"? The notion that democracy brings demands seems to have been lost.

How would Obama or Sen. Feinstein or any of those who endlessly defend government abuses react if there were a broad, deep public demand for democracy, defense of rights, and an end to massive surveillance? If we have not already reached the point of no return, we are rapidly approaching one where a surge in public opposition would provoke a constitutional crisis worse than that seen in the Civil War. The crisis will likely never arise because the public is so misinformed, so deceived, and so dogmatic in its faithful attachment to American power that the demand will never be made.

Lest this seem like conspiracy theorizing or just handwaving, recall that in the Nixon years, calls by some within the administration for more troops in Vietnam were opposed because it was thought those troops might be needed in the US to quell domestic unrest. Recall also that both Bush and Obama made legal moves that would, in principle, undermine posse comitatus and allow use of US troops within the US.

Finally, despite racist hostility to Obama or malicious GOP opposition to anything Democratic, Americans are still overwhelmingly of the view that we owe obedience to political leaders. Americans identify the powerful in America with America itself. And they suffer under the delusion that they, any day now, will win the lottery and join the powerful.

NSA Spies On US — Let's Spy on the Spies

More on this soon. In the meantime, click here or on the image below for the list of US nuclear sites, here in the US and abroad. The big thing here is not the locations — they're widely known — but what is at those locations. Some foreign governments may be surprised by how the US is playing them for patsies. (The US pulled a big one on Iceland during the Reagan years by storing nuclear weapons in Iceland, unbeknownst to the Icelandic government and in direct violation of Icelandic law and promises made by the US to Iceland.)

This is placed on this site as an Act of Political Defiance
of a US Government and an Obama administration
that is spying on US citizens
in direct violation of Article IV of the Bill of Rights
of the Constitution of the United States.

Do not forget that Barack Obama has supported FISA (the Foreign Intelligence Surveillance Act), the prison at Bagram in Afghanistan (where prisoners have been abused every bit as much as at Guantánamo). Obama has defended American war criminals, defended American banking criminals.

Rights? Who Gives a Damn. (Not Barack Obama.)

Rumor has it that (President) Barack Obama taught constitutional law — at the University of Chicago. Given the right-wing leaning of many at Chicago, he might be forgiven if he is hazy on the notion that human beings have rights. But he also, according to rumor, studied at Harvard, home then to the late John Rawls (though also to the likes of Charles Fried and Alan Dershowitz).

One way or another, it seems at least plausible that Obama may have, at least once, have come across this line:

Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.

This comes from John Rawls's A Theory of Justice. It expresses one of the core principles of Western moral thought, one that has spread around the world and motivated countless movements for human rights.

It a notion that Barack Obama is, despite his rhetoric, abandoning in his support for Bush-era crimes supposedly in the name of "national security".

The simple fact is this: There are some acts that cannot be justified, no matter what the 'good' that is promoted by the act. This is a notion that Americans embrace with near universality (the likes of Dick Cheney, Alberto Gonzalez, Condoleezza Rice being among the few exceptions). It is worth noting that no one is promoting the "ticking time-bomb" argument with regard to strictly domestic criminals.

The only reason that Obama might get away with his criminal denial of rights to Guantánamo detainees is that they are (1) Arab (or Afghan, or 'Middle Eastern') and (2) Muslim. There is a long history of due process being accorded to the most dangerous, most reprehensible individuals. Think of some American organized crime bosses, or Nazi war criminals, or serial killers. Surely profoundly dangerous. In the case of organized crime figures, surely individuals with wide networks that could threaten communities home to the prisons holding these criminals.

I find ite nearly impossible to believe that Barack Obama, whom people routinely describe as the 'smartest person' they've ever met, doesn't grasp this. That he is willing to sacrifice so fundamental a priniciple of American law for the sake of political expediency condemns him and his presidency to the same moral status as his loathesome predecessor.

Prosecuting Bush War Criminals

Democracy Now interviewed Michael Ratner, head of the Center for Constitutional Rights.

Bush's Police State

From Counterpunch, an essay by Marjorie Cohn on the Bush Justice Department memos authored by, among others, the war criminal John Yoo:

Blueprints for a Police State
The Yoo-Bybee Memoranda
By MARJORIE COHN

Seven newly released memos from the Bush Justice Department reveal a concerted strategy to cloak the President with power to override the Constitution. The memos provide “legal” rationales for the President to suspend freedom of speech and press; order warrantless searches and seizures, including wiretaps of U.S. citizens; lock up U.S. citizens indefinitely in the United States without criminal charges; send suspected terrorists to other countries where they will likely be tortured; and unilaterally abrogate treaties. According to the reasoning in the memos, Congress has no role to check and balance the executive. That is the definition of a police state.

Who wrote these memos? All but one were crafted in whole or in part by the infamous John Yoo and Jay Bybee, authors of the so-called “torture memos” that redefined torture much more narrowly than the U.S. definition of torture, and counseled the President how to torture and get away with it. In one memo, Yoo said the Justice Department would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

What does the federal maiming statute prohibit? It makes it a crime for someone "with the intent to torture, maim, or disfigure" to "cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb or any member of another person." It further prohibits individuals from "throwing or pouring upon another person any scalding water, corrosive acid, or caustic substance" with like intent.

The two torture memos were later withdrawn after they became public because their legal reasoning was clearly defective. But they remained in effect long enough to authorize the torture and abuse of many prisoners in U.S. custody.

The seven memos just made public were also eventually disavowed, several years after they were written. Steven Bradbury, the Principal Deputy Assistant Attorney General in Bush’s Department of Justice, issued two disclaimer memos – on October 6, 2008 and January 15, 2009 – that said the assertions in those seven memos did “not reflect the current views of this Office.” Why Bradbury waited until Bush was almost out of office to issue the disclaimers remains a mystery. Some speculate that Bradbury, knowing the new administration would likely release the memos, was trying to cover his backside.

Indeed, Yoo, Bybee and Bradbury are the three former Justice Department lawyers that the Office of Professional Responsibility singled out for criticism in its still unreleased report. The OPR could refer these lawyers for state bar discipline or even recommend criminal charges against them.

In his memos, Yoo justified giving unchecked authority to the President because the United States was in a “state of armed conflict.” Yoo wrote, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” Yoo made the preposterous argument that since deadly force could legitimately be used in self-defense in criminal cases, the President could suspend the Fourth Amendment because privacy rights are less serious than protection from the use of deadly force.

Bybee wrote in one of the memos that nothing can stop the President from sending al Qaeda and Taliban prisoners captured overseas to third countries, as long as he doesn’t intend for them to be tortured. But the Convention Against Torture, to which the United States is a party, says that no country can expel, return or extradite a person to another country “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Bybee claimed the Torture Convention didn’t apply extraterritorially, a proposition roundly debunked by reputable scholars. The Bush administration reportedly engaged in this practice of extraordinary rendition 100 to 150 times as of March 2005.

The same day that Attorney General Eric Holder released the memos, the government revealed that the CIA had destroyed 92 videotapes of harsh interrogations of Abu Zubaida and Abd al Rahim al Nashiri, both of whom were subjected to waterboarding. The memo that authorized the CIA to waterboard, written the same day as one of Yoo/Bybee’s torture memos, has not yet been released.

Bush insisted that Zubaida was a dangerous terrorist, in spite of the contention of one of the FBI’s leading al Qaeda experts that Zubaida was schizophrenic, a bit player in the organization. Under torture, Zubaida admitted to everything under the sun – his information was virtually worthless.

There are more memos yet to be released. They will invariably implicate Bush officials and lawyers in the commission of torture, illegal surveillance, extraordinary rendition, and other violations of the law.

Meanwhile, John Yoo remains on the faculty of Berkeley Law School and Jay Bybee is a federal judge on the Ninth Circuit Court of Appeals. These men, who advised Bush on how to create a police state, should be investigated, prosecuted, and disbarred. Yoo should be fired and Bybee impeached.

Marjorie Cohn is president of the National Lawyers Guild and author of Cowboy Republic.

Republicans Broke Law to 'Guard' Convention

The ACLU of Minnesota, following on the discovery of a document by Wikileaks.org, reveals how the Republican Party used federal forces in efforts to "protect" the 2008 Republican National Convention from such threats as anti-war protesters, free speach advocates, etc.

Revealing RNC document leaked
For Immediate Release
November 21, 2008

The American Civil Liberties Union recently came across a revealing RNC Homeland Security Document. This official document was uncovered by the website Wikileaks, which according to its website "We help you safely get the truth out". This document outlines the planning leading up to the Republican National Convention and how security forces would be working together during the RNC. Many federal, state and local organizations were mentioned in this document, a number of which the ACLU did not know were involved. A number of these agencies are military based, which may directly conflict with Federal law that prohibits the military from engaging in domestic intelligence gathering.

The National Geospatial-Intelligence Agency (NGA), is one of the organizations that is mentioned in the report that is particular cause for concern. NGA provides mapping tools and imagery intelligence that are obtained from the United State's military spy satellites which are controlled by the National Reconnaissance Office. In other words during the RNC, these top spying tools could have been utilized to gather intelligence on the homes of activists and media workers who were a part of the demonstrations. That information could have then been relayed to local officials.

A second agency that was involved in the planning is the Pentagon's Northern Command, NORTHCOM. Having NORTHCOMM at the table, assisting in the planning is troubling because it could mean that the military was involved in the crowd control strategies and dealing with potential civil unrest. According to a report in Army Times, it said that an active military unit has been deployed by NORTHCOM in the United States. This deployment marks the first time an active unit has been given a dedicated assignment within U.S. Borders.

Furthermore it appears that the FBI may have been using a station faking technology that would allow them to locate an individual through their cell phone. The ACLU is concerned with how this technology is used and if there was proper judicial oversight. In the USA Patriot ACT, this process for obtaining a track was made easier, and could allow for little to no judicial oversight. This tracking via cell phones could have been used during the RNC without the knowledge of even the phone companies.

"These behaviors are a radical departure from separation of civilian law enforcement and military authority, and could, quite possibly, represent a violation of law," said Teresa Nelson, ACLU of Minnesota. The ACLU-MN will continue to investigate and will use their findings in future lawsuits against law enforcement officials.

The November Not-So-Surprise

2000 — The Republicons, through one of two or three worst Supreme Court decisions in American history, successfully pulls off a Very American Coup.

2004 — Diebold and the Ohio Secretary of State deliver the state of Ohio's electoral votes to the Bush imperium.

2008 — Across the country, the Republicon Party is working to intimidate voters, strike voters from the rolls, and otherwise set the stage for another coup.

Steal Back Your Vote. We can combat the Republicon campaign to destroy the Constitution and democracy.

Believe it. Check former Republican LA District Attorney Vincent Bugliosi's essay in The Nation.

See also:

Bruce Ackerman. "Anatomy of a Constitutional Coup", London Review of Books. 8 February 2001.