Thursday, January 3, 2013

White House wins fight to keep drone killings of Americans secret

03 January, 2013

A federal judge issued a 75-page ruling on Wednesday that declares that the US Justice Department does not have a legal obligation to explain the rationale behind killing Americans with targeted drone strikes.

United States District Court Judge Colleen McMahon wrote in her finding this week that the Obama administration was largely in the right by rejecting Freedom of Information Act (FOIA) requests filed by the American Civil Liberties Union and The New York Times for materials pertaining to the use of unmanned aerial vehicles to execute three US citizens abroad in late 2011 [pdf].

Anwar al-Awlaki and Samir Khan, both US nationals with alleged ties to al-Qaeda, were killed on September 30 of that year using drone aircraft; days later, al-Awlaki’s teenage son, Abdulrahman al-Awlaki, was executed in the same manner. Although the Obama administration has remained largely quiet about the killings in the year since, a handful of statements made from senior White House officials, including Pres. Barack Obama himself, have provided some but little insight into the Executive Branch’s insistence that the killings were all justified and constitutionally-sound. Attempts from the ACLU and the Times via FOIA requests to find out more have been unfruitful, though, which spawned a federal lawsuit that has only now been decided in court.

Siding with the defendants in what can easily be considered as cloaked in skepticism, Judge McMahon writes that the Obama White House has been correct in refusing the FOIA requests filed by the plaintiffs.

"There are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a 'hot' field of battle," McMahon writes in her ruling. Because her decision must only weigh whether or not the Obama administration has been right in rejecting the FOIA requests, though, her ruling cannot take into consideration what sort of questions — be it historical, legal, ethical or moral — are raised by the ongoing practice of using remote-controlled drones to kill insurgents and, in these instances, US citizens.

"The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable Catch-22,” she writes. “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret.”

Throughout her ruling, Judge McMahon cites speeches from both Pres. Obama and Attorney General Eric Holder in which the al-Awlaki killings are vaguely discussed, but appear to do little more than excuse the administration’s behavior with their own secretive explanations.

“The Constitution’s guarantee of due process is ironclad, and it is essential — but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a US citizen,” McMahon quotes Mr. Holder as saying during a March 2012 address at Chicago’s Northwestern University. “Holder did not identify which recent court decisions so held,” the judge replies, “Nor did he explain exactly what process was given to the victims of targeted killings at locations far from ‘hot’ battlefields…”

And while both Mr. Holder and Pres. Obama have discussed the killings in public, including one appearance by the president on the Tonight Show with Jay Leno, the Justice Department insists that going further by releasing any legal evidence that supports the executions would be detrimental to national security.

While Judge McMahon ends up agreeing with the White House, she does so by making known her own weariness over how the Obama administration has forced the court to rely on their own insistence that information about the attacks simply cannot be discussed.

“As they gathered to draft a Constitution for their newly liberated country, the Founders — fresh from a war of independence from the rule of a King they styled a tyrant — were fearful of concentrating power in the hands of any single person or institution, and most particular in the executive,” McMahon writes.

Responding to the decision on Wednesday, ACLU Deputy Legal Director Jameel Jaffer issued a statement condemning the White House’s just-won ability to relieve itself from any fair and honest explanation as to the justification of Americans.

“This ruling denies the public access to crucial information about the government’s extrajudicial killing of US citizens and also effectively green-lights its practice of making selective and self-serving disclosures,” Jameel writes. “As the judge acknowledges, the targeted killing program raises profound questions about the appropriate limits on government power in our constitutional democracy. The public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including US citizens, who are far from any battlefield and have never been charged with a crime.”

The ACLU says they plan to appeal Judge McMahon’s decision and are currently awaiting news regarding a separate lawsuit filed alongside the Center for Constitutional Rights that directly challenges the constitutionality of the targeted kills.

“The government has argued that case should also be dismissed,” the ACLU notes.

In a Wednesday afternoon statement from the Times, assistant general counsel David McCraw says the paper will appeal the ruling as well.

"We began this litigation because we believed our readers deserved to know more about the US government's legal position on the use of targeted killings against persons having ties to terrorism, including US citizens," McCraw says.

Although she ruled against the plaintiffs, Judge McMahon, says McCraw, explained "eloquently … why in a democracy the government should be addressing those questions openly and fully."

Tuesday, January 1, 2013

The Ongoing War: After the Battle Over the Cliff, the Battle Over the Debt Ceiling

 Robert Reich

“It’s not all I would have liked,” says Republican Senator Lindsey Graham of South Carolina, speaking of the deal on the fiscal cliff, “so on to the debt ceiling.”

For Republicans, the battle over the fiscal cliff is only a prelude to the coming battle over raising the debt ceiling – a battle that will likely continue through early March, when the Treasury runs out of tricks to avoid a default on the nation’s debt.

The White House’s and Democrats’ single biggest failure in the cliff negotiations was not getting Republicans’ agreement to raise the debt ceiling.

The last time the debt ceiling had to be raised, in 2011, Republicans demanded major cuts in programs for the poor as well as Medicare and Social Security.

They got some concessions from the White House but didn’t get what they wanted – which led us to the fiscal cliff.

So we’ve come full circle.

On it goes, battle after battle in what seems an unending war that began with the election of Tea-Party Republicans in November, 2010.

Don’t be fooled. This war was never over the federal budget deficit.

In fact, federal deficits are dropping as a percent of the total economy.

For the fiscal year ending in September 2009, the deficit was 10.1 percent of the gross domestic product, the value of all goods and services produced in America. In 2010, it was 9 percent. In 2011, 8.7 percent. In the 2012 fiscal year, it was down to 7 percent.

The deficit ballooned in 2009 because of the Great Recession. It knocked so many people out of work that tax revenues dropped to the lowest share of the economy in over sixty years. (The Bush tax cuts on the rich also reduced revenues.) The recession also boosted government spending on a stimulus program and on safety nets like unemployment insurance and food stamps.

But as the nation slowly emerges from recession, more people are employed — generating more tax revenues, and requiring less spending on safety nets and stimulus. That’s why the deficit is shrinking.

Yes, deficits are projected to rise again in coming years as a percent of GDP. But that’s mainly due to the rising costs of health care, along with aging baby boomers who are expected to need more medical treatment.

Health care already consumes 18 percent of the total economy and almost a quarter of the federal budget (mostly in Medicare and Medicaid).

So if the ongoing war between Republicans and Democrats was really over those future budget deficits, you might expect Republicans and Democrats to be focusing on ways to hold down future healthcare costs.

They might be debating how to make the cost controls in the Affordable Care Act more effective, for example, or the merits of moving to a more efficient single-payer system, as every other advanced country has done.

But they’re not debating this, because the federal deficit is not what this war is about.

It’s about the size of government. Tea-Party Republicans (and other congressional Republicans worried about a Tea-Party challenge in their next primary) want the government to be much smaller.

“My goal,” says conservative guru Grover Norquist, “is to cut government in half in twenty-five years, to get it down to the size where we can drown it in the bathtub.”

What’s behind this zeal to shrink government? It’s not that the U.S. government has suddenly become larger. In fact, non-military government spending relative to the size of the U.S. economy remains the smallest of any other rich nation.

Apart from the military, Medicare and Social Security account for almost everything else the federal government does – and these programs continue to be hugely popular, as Republicans learn every time they threaten them.

The animus toward government has more to do with the growing frustrations of many Americans that they’re not getting ahead no matter how hard they work. Government is an easy scapegoat, utilized by much of corporate America to convince average Americans to cut taxes, spending, and regulations.

The median wage continues to drop, adjusted for inflation, even though the economy is growing. And the share of the economy going to wages rather than to profits is the smallest on record.

Increasingly it’s looked like the game is rigged, especially when people see government bailing out Wall Street (the Tea Party movement grew out of the bailout, as did the Occupiers), and handing out corporate welfare to big agriculture, big pharma, oil companies, and insurance companies.

The outrage grows when average working people are told – wrongly — that a growing portion of Americans don’t pay taxes and live off government handouts.

The battle over the fiscal cliff is over but the trench warfare will continue.

Conceder In Chief?

December 31, 2012 - Paul Krugman NYTimes
OK, I’ve had my own sorta-kinda briefing on the apparent fiscal cliff deal, and I’m pretty much with Noam Scheiber. Viewed on its own, it’s a bad and upsetting deal but not as terrible as initial rumors had it. But the strategic consequences are likely to be very bad indeed, and in very short order too.

As background, it’s important to understand what Obama clearly could have gotten just by going over the cliff. Basically, he could have gotten the whole of the Bush high-end tax cuts reversed, which would mean close to $800 billion in revenue over the next decade. What he couldn’t get, or at least couldn’t count on getting, were various spending items. This included the extension of unemployment benefits and various “refundables” on things like the Earned Income Tax Credit, that is, pieces of tax legislation that end up having the government cut checks to families instead of the other way around.

So what Obama appears to have done is trade away part of the revenue from high-income taxpayers in return for some of the spending items he wanted. Extended unemployment benefits for a year, and the refundables either extended in perpetuity or for 5 years.

The revenue loss seems to be on the order of $150 billion, or maybe a bit less. The reasons it isn’t bigger is that while the threshold for the top marginal rate is moving up to 450K, the thresholds for other things — phaseout of deductions, higher taxes on dividends and capital gains — aren’t going up, they’re staying at 250K.

And at least one positive thing can be said: no giveaway on Social Security, Medicare, or Medicaid. Basically, no spending cuts at all.

If you want think about the longer-term implications here, they’re ambiguous. The deficit is no problem right now, but there will eventually be a collision between the rising costs of social insurance programs and the inadequacy of the revenue base. Something will have to give.

There were two big risks, from a progressive point of view, in Obama’s eagerness to get a Grand Bargain. One was that he would allow the Bush tax cuts to be locked in, making it very hard to get additional revenue; the other was that he would give in on fundamental benefit cuts. Well, he did #1, partially, but didn’t do #2 at all. This sets up a future confrontation: it will be very hard for progressives to raise taxes, but also very hard for conservatives to cut those social programs.

I suppose the best case you can make here is that raising rates on the top 2 percent was never going to be enough anyway, so Obama getting less from that than he should have isn’t that big a deal. And the nightmare in which he cut Medicare and/or Social Security, only to have Republicans run against those cuts in 2014, seems to have been averted.

OK, now for the really bad news. Anyone looking at these negotiations, especially given Obama’s previous behavior, can’t help but reach one main conclusion: whenever the president says that there’s an issue on which he absolutely, positively won’t give ground, you can count on him, you know, giving way — and soon, too. The idea that you should only make promises and threats you intend to make good on doesn’t seem to be one that this particular president can grasp.

And that means that Republicans will go right from this negotiation into the debt ceiling in the firm belief that Obama can be rolled.

At that point he can redeem himself by holding firm — but because the Republicans don’t think he will, they will play tough, almost surely forcing him to actually hit the ceiling with all the costs that entails. And look, if I were a Republican I would also be betting that he’ll cave.

So Obama has set himself and the nation up for a much uglier confrontation than we would have had if he had set a negotiating position and held to it.

Update: I should mention that on one issue, the estate tax, the problem is apparently with the Senate; there are, unfortunately, some heartland Dem Senators who are extremely solicitous of the handful of super-wealthy families in their states, so that Obama’s people don’t think they can get a majority for higher taxes here. It’s bizarre: states like New Jersey have far more large estates, not just total but per capita, than states like Montana, but it’s the Senators from the latter that are eager to preserve the inherited privileges of the few.