Techno-Fascism (NSA) and the Obama Administration

Shaping the Totalitarian Mindset
by NORMAN POLLACK


History is a holistic political-structural process, Marx’s dialectical framework notwithstanding, because even allowing for contradiction there are successive stages of integration, from each of which conflicting tendencies are generated. There is nothing deterministic here, merely the assertion that reality has a unified character, whether or not experiencing social struggle. And in America, regrettably not, upper groups maintaining internal economic-ideological supremacy, beginning, I suspect, from the late-19th century, and progressively tightening its control over society through time up to and including the present. This is not an empty formula that radicals have learned through rote—the experience of gradually shrinking boundaries within which to achieve social change becomes apparent on an almost daily basis, the rapidity of the process now sufficient cause for alarm—yet met with false consciousness below, constant movements toward confrontation and war both to instill among the populace loyalty, consensus, silence, and among upper groups, the impetus for militarism and capitalist expansion (themselves structurally integrated), false consciousness above of another sort: a pathological quest for global dominance of the international system when that system itself no longer fears America.

America in decline, or even in not absolute terms, but rather, within a world system that in power terms is becoming de-centered (a multipolar framework), is losing its way, becoming desperate, striking out at real and imagined enemies (some from the past, as in an anticommunism never put to rest), tempted to manufacture crises as a way of preserving domestic cohesion, paramount for clinging to the unilateral military dominance to which it had been accustomed since World War 2, or at least its symbols if not its substance. Decline is never hospitable ground for democracy, particularly a democracy that requires, as a condition of its functioning, a permanent state of war—where we have been since perhaps the Korean War; and hence, a questionable democracy at best, and since the Bush-Obama years no longer subject to debate. I say, the shrinking boundaries on a daily basis for achieving social change: Therefore, let’s go back several days to three separate signs bearing out the foregoing discussion, all, I believe, interrelated, because rooted in the needs of an American capitalism struggling to protect its hegemonic status on top the global pyramid.

I

In my CounterPunch article, “FBI Authorized Cyberattacks: Further Signs of Unfolding Fascism,” (May 6), we met Hector Monsegur, a true American PATRIOT, as advertised by, and from the standpoint of, the US government, one whom, because the FBI, through harsh threats of criminal prosecution against the hacker group, Anonymous, had been turned (gleefully, it would seem) him into an informer helping to direct the Bureau’s cyberwarfare campaign against foreign governments and corporations. In the USG’s telling, i.e., the federal prosecutor’s drawn indictment to the Court (praising him to the hilt for his cooperation in implicating the other members of the group—Jeffrey Hammond, for one, serving a 10-year sentence), he moves from Patriot to National Hero for the big snitch and tech-savvy assistance in what amounts to highly illegal attacks, not least because obviously stretching the FBI’s actions beyond US boundaries as well as the nature of the espionage (although possibly cleansed through the Patriot Act responsible for still more gross violations of civil liberties and international law).

With this background, we move to last week in illustration of Obama’s full-court press toward incipient if not also actualized fascism. I say “Obama,” because in this case the FBI but more important a discussion to follow on NSA, one finds a direct projection of/from the government; neither one, again, especially NSA, can be dismissed simply as a “rogue” agency, and instead reflect the pith of Administration policy: pursuit of continued global hegemony through solidification, beyond obviously powerful military forces, of a National Security State, a prime requirement being the practice of surveillance at home and abroad. One of the tests of a democratic polity is accountability at the very top—and regrettably America has neither, the lack of the latter testifying to the absence of the former.

Conversely, the situation now worsens, each daily flagrancy, as in the violation and near-destruction of privacy, equally, rule of law, in government’s working toward that end, reveals the deadly metastasizing of American institutions in general, the courts, Congress, ultimately the people: ramifying consequences of cynicism, corruption, and, to be more charitable than the situation warrants, false consciousness, all in the service of ruling groups integrated in the form of financial-industrial-commercial-military elites, with what is now termed the political class (a designation I find, as to its role and independent power, a nifty slogan yet wholly inadequate ) merely their man/maid servants, for an older generation of radicals, then, following Veblen, the Swiss Guards of the Vested Interests, servicing their needs in domestic and foreign policy.

Take the last week in May (let’s skip over the “political class” in favor of the institutionalized structure of power, starting with POTUS in collaboration with the FBI and CIA), here our friend Monsegur (known by the alias “Sabu”), the Guardian (June 1) in its subhead saying it all: “Authorities credit Hector Xavier Monsegur with helping them cripple Anonymous in lenient sentence of time served.” He gets off—the corruption of the courts noted above. Monsegur, the Guardian reports, “who by the US government’s calculations participated in computer hacker attacks on more than 250 public and private entities at a cost of up to $50m in damages, was released from a Manhattan courtroom on Tuesday after the judge saluted his ‘extraordinary cooperation’ with the FBI.”

Who is more guilty in this farce, Monsegur, or Loretta Preska, chief judge of the federal district court of the southern district of New York, is a moot question, and, standing behind her, the FBI’s crass practices of intimidation from which the federal court system looks away or actively praises. Monsegur had faced “a maximum sentence according to official guidelines of more than 26 years.” Nope. In pronouncing sentence the judge “repeatedly praised what she called his ‘truly extraordinary cooperation,” providing USG “sophisticated and complex assistance” enabling it “to pierce the secrecy surrounding LutzSec [a UK and US hacker group that had broken away from Anonymous] and successfully prosecute its members.” Informant on others, FBI cyberwarrior par excellence—not a hero, however, to members of Anonymous, which, as one told the Guardian: “Monsegur is, first and foremost a criminal; the FBI’s cyber crime task force are his co-conspirators. While operating under their supervision, Monsegur committed numerous felonies which should in no way be excused due to his protected informant status.”

Well-put, and to me, chalk up another score for fascism, the leading domestic federal law-enforcement agency in the commission of crimes, turning those it prosecutes for criminal punishment into informants in exchange for leniency—while in addition pursuing more sinister ends, to wit, seeking (as does mass surveillance itself) to cow the populace into submission. Here the Anonymous spokesperson is right on target: “The FBI continues to use captured informants, who commit egregious crimes in pursuit of reduced sentences, for the sole purpose of creating ‘examples’ to frighten the public. They do this with the hope of pacifying online dissent and snuffing out journalistic investigations into the US government’s misconduct.” This is what I meant by the metastasizing effects of government policy on behalf of global hegemony and domestic social control, both defining a unified whole. (Hammond, convicted, operated under Monsegur’s direction, “launch[ing] cyber-attacks around the world,” and then sentenced because failing to be turned. In addressing the court, he told Preska: “The government celebrates my conviction and imprisonment, hoping that it will close the door on the full story. I took responsibility for my actions, by pleading guilty, but WHEN WILL THE GOVERNMENT BE MADE TO ANSWER FOR ITS CRIMES?” (my caps.)

Monsegur went on to secure convictions of others. In the court memorandum disclosing how Hammond was caught, an obvious case of entrapment, it becomes clear that Monsegur “had been put at the hub of a vast web of surveillance,” for it was revealed that while he remained in New York, he “’engaged in online chats with Hammond (who was then in Chicago), while coordinating with FBI agents in New York, physical surveillance teams deployed in Chicago, and an electric surveillance unit in Washington DC.’” When in June 2011 the FBI came knocking on his door, “[h]is transformation from a hacker legend into an informant was instantaneous—he agreed to cooperate with the government immediately,” to which, at sentencing, Preska was in fulsome praise, the quickness allowing the FBI to move against LutzSec before its members could be warned. As a UC Hastings law professor (obviously not John Yoo of White House Counsel torture-authorization fame), summarizing Monsegur’s work for the FBI in launching attacks against foreign governments, stated: a sting operation for a crime already in motion was one thing, but it was quite another, “’when you contribute to the creation, inducement and execution of a crime that never was. Particularly when those crimes may very well affect our foreign policy.’” Welcome Team FBI USA, Obama coach-cheerleader, etc.

II

Turning next to the NSA, one sees techno-fascism in full parade-dress, massive surveillance, here, facial recognition data, now combined with practically every other conceivable means of collecting and storing information on Americans—and as much as possible, globally. (Hayden, Alexander, Clapper, the whole leadership crew, past, present, future, listen up: how about the measurement, via forced registration, of men’s private parts—in millimeters, of course, to ensure accuracy in order to intimidate against dissent, facilitate government prosecution, induce apathy toward and complicity with public policy, therefore carrying further the purposes of massive surveillance? Seemingly, no stone can be left unturned in discovering and uprooting subversion.) Here, James Risen and Laura Poitras—both of whom deserve and have earned the respect of those committed to civil liberties—in their New York Times article, “N.S.A. Collecting Millions of Faces from Web Images,” (May 31), present a breaking story in what one might call a chapter in runaway fascism, particularly odious on top of everything else, including, if I may digress to establish the spirit of government making facial recognition a viable tool of the megalomaniac NSA in its quest to obliterate privacy in world-dimensional terms.

I press for small details to illumine the institutional core of repression, here a societal pattern, if we keep to the short-term, which has been well-established since the enshrinement of Sect. 25 of the Patriot Act (with that Act legitimating so much of government policy, one wonders why any demurral about naming fascism for what it is—the signs, from militarism, to surveillance, to financial-corporate concentration, to xenophobic and ethnocentric mental patterns, all around us and germane to the public acceptance of hegemonic goals). Charlie Savage’s NYT article, “U.S. Seeks to Censor More of Memo That Approved Drone Strike on American,” (May 28), refers both to Obama’s personally authorized assassination of a US citizen, Anwar al-Awlaki—drone assassination, as I see it, itself a form of, even prime example of, techno-fascism, the pressing of a button halfway around the world to leave a blood spat where a human being once stood—and the white-collar version of techno-fascism of the more routine kind, REDACTION, as a means of protecting government from the charge of, and evidence demonstrating, war crimes. He does not call either, a war crime; emphasis is on cover-up as a general proposition of hiding illegality.

Obama-Holden, the Castor-Pollux of Censorship, have, short of rewriting the Constitution, done all in their power to forestall condemnation for the killing of an American citizen without an indictment, the right to counsel, a jury trial of his/her peers, due process in all its manifold accordance of rights, and instead—no boots on the ground—murder via impersonal technological magic, an Obama favorite, given his usage far exceeding that of his predecessor (metastasizing, in this case, down to the nitty-gritty of conducting warfare, already plagued with atrocities enough). Savage writes: “One week after the Obama administration said it would comply with a federal appeals court ruling ordering it to make public portions of a Justice Department memo that signed off on the targeted killing of a United States citizen, the administration is now asking the court for permission to censor additional passages of the document.” Disgraceful, no, nauseating—why? Not only the stall-tactic, but that the death-authorization was a SECRET MEMO, only seeing the light of day through being forced through an FIA lawsuit. Suppose the memo were allowed to stand, and then gather motion as binding precedent: the killing of citizens, whether on grounds of national security or, say, anticommunism, or counterterrorism, would be standard operating procedure. Hide the memo, it stinks to high heaven!

The designated driver/culprit, the memo’s principal author, fresh from Harvard Law (an ideal soul mate of Obama, who as president of the Law Review had not written an article for it—HLS, what a staggering decline since the days of Holmes and Roscoe Pound), is David Barron, confirmed the week before “to an appeals court judgeship,” what he had been to DOJ Monsegur had been to FBI, complicit through direct involvement in murder. The memo, July 16, 2010, al-Awlaki struck down in Yemen September 2011, it was only the ACLU-NYT suit seeking the memo’s public disclosure that got us this far. Savage: “The Justice Department said it would soon disclose a version of the memo with the additional passages it wants to keep redacted blocked out. It said the additional passages discussed classified fact not legal reasoning.”

Classification, the mother of all redactions, has been the handy device behind which the Obama government hides, and the basis for its forays into somewhat clumsy storm-trooper-like attacks on whistleblowers via the Espionage Act. This is truly an embarrassment, if not outright sign of fascism.

In January 2013 a Federal District Court judge “ruled that the government could withhold the memo from the public entirely,” which was overturned this past April by a panel of the US Court of Appeals for the Second Circuit (NY), ruling “that the government must make public portions of the memo that lay out legal analysis, though not facts based on classified intelligence.” Even this did not satisfy USG which in a new filing claimed that what “the court had designated for public release contained further information that should be exempt from disclosure.” An assistant US attorney—DOJ at all times up to its neck in fighting disclosure—chastised the higher court, essentially for its stupidity (its decision based on “inadvertence or mistake”) and moved “to keep its entire motion seeking additional redactions SECRET” (my caps.), a nerviness I should think beyond the pale, to which the court denied “that request” and said “that as much of the motion as possible would have to be made public.” The court then went one step further, revealing “new details about several previous rounds of then-secret negotiations between the court and the government, dating back to February [2014], over what would be redacted.”

The National Security State can be seen here to vitiate the rule of law, secrecy being in the DNA of the Executive permeating through all its agencies and bureaus, not least, DOJ. Will we ever get the truth? A week ago Solicitor General Verrilli Jr. said with release of the memo another appeal for redaction would follow, including the identity of the agency responsible for al-Awlaki’s killing—which everyone knows was the CIA. A disheartening conclusion: “Although it is widely known that the C.I.A. operates drones, including from a base in Saudi Arabia, and that it participated in the operation that killed Mr. Awlaki, the Obama administration still officially treats that information as secret.”

III

Nor is it especially forthcoming about the mass collection of facial recognition data. We return to Risen and Proteus and the discussion of an NSA practice that is not really new, only newly revealed—be it noted–through the Snowden disclosures (their import, more vital, in exposing government usurpation than ever thought possible). The reporters state that NSA “is harvesting huge numbers of images of people from communications that it intercepts through its global surveillance operations for use in sophisticated facial recognition programs, according to top-secret documents.” As indicated before, no area of human identity is safe from government spying. To see a brief list of sources is to gain a sense of the range of surveillance. They write: “The spy agency’s reliance on facial recognition technology has grown significantly over the last four years as the agency has turned to new software to exploit the flood of images included in emails, text messages, social media, videoconferences and other communications, the N.S.A. documents reveal.” (Without Snowden’s revelations, here as with so much else, we would be in the dark, which government, demonstrated by its actions, prefers, the attacks on him from Obama down showing the fear of revelations.) For NSA, technology summons the future—perhaps why I thought of the title, techno-fascism, as though a window had been opened to the utter destruction of privacy, and for Obama, particularly, a pseudo-sophisticated concept of warfare, in effect, that pushing buttons can rule the world. They observe further: “Agency officials believe that technological advances could revolutionize the way that the N.S.A. finds intelligence targets around the world, the documents show. The agency’s ambitions for this highly sensitive ability and the scale of its effort have not previously been disclosed.”

What are we speaking of? “The agency intercepts ‘millions of images per day’—including about 55,000 ‘facial recognition quality images,’” an NSA document summarizes from 2011, as part of enlarging “its mission of tracking suspected terrorists” in what amounts to a dystopian wave-of-the-future position. A 2010 document calls for adopting a “full-arsenal approach,” beyond “traditional communications,” so as to include “biographic and biometric information,” the latter especially not unlike what had been heard in the eugenics movement at the turn of the last century. Whatever the surveillance methods of choice, the act itself does not change, nor the permissiveness of acting: “It is not clear how many people around the world, and how many Americans, might have been caught up in the effort. Neither federal privacy laws nor the nation’s surveillance laws provide specific protections for facial images.” But the phrase of choice in these operations, from whatever source, is SCOOP UP, in turn giving on to a sense of range and scope: “Given the N.S.A.’s foreign intelligence mission, much of the imagery would involve people overseas whose data was scooped up through cable taps, Internet hubs and satellite transmissions.” We expect this from the bulk collection of metadata, but THIS is somehow different, a stripping away of identity per se. A wondrous world of possibilities for repression awaits, as a Carnegie Mellon researcher perhaps unwittingly describes: “’There are still technical limitations [on the total erosion of privacy], but the computational power keeps growing, and the databases keep growing, and the algorithms keep improving.’”

It is fair to say that NSA joins CIA, FBI, FISA Court–but why stop there?—president, Congress, judiciary (with few exceptions), in hunting down human aspiration and social democracy as threats to an America determined to keep its priorities straight: the greatest military the world has ever seen, increasing class differentiation with concentrated wealth confined to a numerically infinitesimal upper group matched symmetrically by a disproportionately growing underclass (a perfect pyramid in the making), and to fill in what is becoming essentially a moral void, a flourishing authoritarianism taking form and expression in global hegemony, intervention, counterrevolution. Painless, at least to the American people, should techno-fascism have its way—with, of course, one catch: fascism of every sort becomes self-devouring, hatred of others, either because they’re different or fail to see the splendiferous light about America, is finally channeled inward as self-hatred, something all of the surveillance and images cannot prevent and probably only accelerate.
MY New York Times Comment on the Risen-Poitras article, same date, follows:

Facial recognition data–in the words of Joseph Welch to Joe McCarthy, “Have you no shame, sir?”, applies equally today, if not more so, addressed to NSA under precisely the same circumstances: the abrogation of American civil liberties.

What is this country coming to? A Surveillance State, National Security State, and, if a may, proto-Totalitarian State–for what else can be said of a government sponsoring the total destruction of privacy of its own people, and attempting the same for the world?

In a society where such destruction is passively accepted–an outrageous assault on human dignity, people simply taking it, is another useful description of totalitarianism. All three branches of government are complicit, each in its own way, in this assault on human dignity. Political party, here bipartisan consensus; Executive, integral part of Obama’s enlargement of power; judiciary, FISAC a travesty, Supreme Court culpable in allowing an/or promoting the invasion of rights.

Facial recognition data merely the next step in a cumulative series of abuses accompanied by the supineness of government to check its own USURPATION. There appear to be no checks left, leaving the nation defenseless against its own inner devils, starting from a pathological anticommunism that has morphed into counterterrorism, with a heavy dose of militarism, xenophobia, and resentment about facing the challenges of a now multipolar world.
A decentralized world structure is seen as abhorrent.

Obama’s War on Whistleblowers

Obama signed both the Whistleblower Protection Enhancement Act, expanding whistleblower protections, in November 2012, and the National Defense Authorization Act (NDAA) furthering these protections in January 2013. His NDAA signing statement, however, undermines these protections, stating that those expanded protections “could be interpreted in a manner that would interfere with my authority to manage and direct executive branch officials.” Thus, in his signing statement, Obama promised to ignore expanded whistleblower protections if they conflicted with his power to “supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”

Despite rhetoric to the contrary, the Obama administration is targeting government whistleblowers, having invoked the otherwise dormant Espionage Act of 1917 seven times. The Obama justice department has also used the Intelligence Identities Protection Act to obtain a conviction against Central Intelligence Agency (CIA) whistleblower John Kiriakou for exposing the waterboarding of prisoners, ironically making Kiriakou the first CIA official to be sentenced to prison in connection with the torture program. The justice department charged former National Security Agency senior executive Thomas Drake with espionage for exposing hundreds of millions of dollars of waste.

The highly visible prosecution of Bradley Manning has become what some may argue to be the most effective deterrent for government whistleblowers. Manning admitted to leaking troves of classified documents to WikiLeaks, but pleaded not guilty on counts of espionage.

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Why Is Obama Bashing a Whistleblower Law He Already Signed?

In a signing statement, the president criticized—and perhaps undermined—a law intended to protect whistleblowers.
By Dana Liebelson

Remember that scene in Mean Girls where Regina George, the blonde queen bee, tells a classmate, "I love your skirt, where did you get it?" but then says, "That is the ugliest fucking skirt I've ever seen," behind the other teen's back? President Barack Obama might have just pulled a similar stunt with the whistleblower community.

Obama signed a new law expanding whistleblower protections for some government employees in November, and on January 2, he signed the 2013 National Defense Authorization Act, which extends similar protections to defense contractors who expose waste and corruption. But the NDAA signing came with a caveat that blindsided the bill's backers and has some in the whistleblower community up in arms: In a signing statement, Obama wrote that the bill's whistleblowing protections "could be interpreted in a manner that would interfere with my authority to manage and direct executive branch officials," and he promised to ignore them if they conflicted with his power to "supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential."

"12 million contractors are going to be out in the cold because of this," warns Jesselyn Radack, the national security and human rights director for the Government Accountability Project and a former whistleblower. "Asking employees to go to their boss before going to Congress defeats the purpose of blowing the whistle." Radack adds that presidents "use signing statements to direct their subordinates on how to interpret and administer a law, and it can have substantial legal impact." She points to George W. Bush's signing statements on torture and the USA PATRIOT Act as examples, both of which allowed the former president to dodge parts of those laws.

"The language Obama used wasn't defined, it's completely ambiguous, and it's already led to confusion," says Angela Canterbury, director of public policy at the Project on Government Oversight. "I can imagine contractors claiming that disclosures made by whistleblowers are 'confidential,' and I think it could likely have a chilling effect."

Peter Van Buren, a former foreign service officer who wrote a book exposing contracting waste in Iraq (and was hassled by the State Department as a result) tells Mother Jones the signing statement "is merely another expression of [the Obama] administration's hostile policy toward all whistleblowers…It disappoints me, and devalues my own efforts to bring transparency to the government."

Obama didn't alert either Sen. Claire McCaskill (D-Mo.), who backed the protections, nor Rep. Jackie Speier (D-Calif.), one of the bill's sponsors, that the signing statement was coming, according to reports in the Huffington Post and the Washington Post. In a press release, Speier called Obama's signing statement "deeply disturbing," and warned it could potentially undo the language meant to protect contractor whistleblowers.

Obama has been accused of treating lawful whistleblowers like illegal leakers. His administration has wielded the World War I-era Espionage Act against more federal workers than all other presidents combined. Targets of Obama's crackdown have ranged from Thomas Drake, a former senior executive at the National Security Administration who helped expose hundreds of millions of dollars in waste on a government contract, and John Kiriakou, a former CIA agent who spoke out publicly about waterboarding and is facing prison time.

Other whistleblowers and whistleblower advocates are more optimistic—they're unhappy with the signing statement, but say they're glad they got new legal protections. "Obama's signing statement was rhetorical fluff," argues Tom Devine, the legal director of the Government Accountability Project (GAP). "Obama made no reference to restricting the law, or any type of enforcement against whistleblowers."

"It seems he is saying exactly what a good politician and president should say," argues Kathryn Bolkovac, who exposed human trafficking in Bosnia while serving on the UN Police Task Force (and inspired the movie The Whistleblower). "I am sure it will at times limit his authority, as it should when a conflict of interest may arise regarding executive officials who could potentially be involved, but I see that as a positive."

The new law could help whistleblowers like Bolkovac, who was fired for her disclosures, by creating safe channels for police officers stationed in United Nations peacekeeping areas who report on illegal activity. (Bolkvoac does acknowledge, however, that "private corporations like the one who employed me still have ways of intimidating their employees.") According to GAP, the law will affect about 12 million contractors and will work to protect the $1.9 trillion spent every year on outsourcing. Nonfederal workers can already file lawsuits on behalf of the government, but this law would permanently extend protections to all employees of defense contractors and subcontractors (and temporarily for other contractors, as part of a pilot program).

One thing the law doesn't do, however, is extend those same rights to contractors in the intelligence community, an exclusion that Devine calls "inexcusable."

Radack says that the continued exclusion of the intelligence community from whistleblower protections, in addition to the president's signing statement, demonstrates that "Obama is still giving whistleblowers baby pats on the head while screwing us on the other side."

But Canterbury says it's still "not definitively clear" yet what the impact of Obama's signing statement will be. "It's going to be incredibly important for Congress to conduct rigorous oversight to ensure the law is not weakened," she says.

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Kiriakou and Stuxnet: the danger of the still-escalating Obama whistleblower war
The only official punished for the illegal NSA program was the one who discussed it. The same is now true of torture
Glenn Greenwald
theguardian.com


The permanent US national security state has used extreme secrecy to shield its actions from democratic accountability ever since its creation after World War II. But those secrecy powers were dramatically escalated in the name of 9/11 and the War on Terror, such that most of what the US government now does of any significance is completely hidden from public knowledge. Two recent events - the sentencing last week of CIA torture whistleblower John Kirikaou to 30 months in prison and the invasive investigation to find the New York Times' source for its reporting on the US role in launching cyberwarfare at Iran - demonstrate how devoted the Obama administration is not only to maintaining, but increasing, these secrecy powers.

When WikiLeaks published hundreds of thousands of classified diplomatic cables in 2010, government defenders were quick to insist that most of those documents were banal and uninteresting. And that's true: most (though by no means all) of those cables contained nothing of significance. That, by itself, should have been a scandal. All of those documents were designated as "secret", making it a crime for government officials to reveal their contents - despite how insignificant most of it was. That revealed how the US government reflexively - really automatically - hides anything and everything it does behind this wall of secrecy: they have made it a felony to reveal even the most inconsequential and pedestrian information about its actions.

This is why whistleblowing - or, if you prefer, unauthorized leaks of classified information - has become so vital to preserving any residual amounts of transparency. Given how subservient the federal judiciary is to government secrecy claims, it is not hyperbole to describe unauthorized leaks as the only real avenue remaining for learning about what the US government does - particularly for discovering the bad acts it commits. That is why the Obama administration is waging an unprecedented war against it - a war that continually escalates - and it is why it is so threatening.

To understand the Obama White House's obsession with punishing leaks - as evidenced by its historically unprecedented war on whistleblowers - just consider how virtually every significant revelation of the bad acts of the US government over the last decade came from this process. Unauthorized leaks are how we learned about the Bush administration's use of torture, the NSA's illegal eavesdropping on Americans without the warrants required by the criminal law, the abuses at Abu Ghraib, the secret network of CIA "black sites" beyond the reach of law or human rights monitoring, the targeting by Obama of a US citizen for assassination without due process, the re-definition of "militant" to mean "any military age male in a strike zone", the video of a US Apache helicopter gunning down journalists and rescuers in Baghdad, the vastly under-counted civilians deaths caused by the war in Iraq, and the Obama administration's campaign to pressure Germany and Spain to cease criminal investigations of the US torture regime.

In light of this, it should not be difficult to understand why the Obama administration is so fixated on intimidating whistleblowers and going far beyond any prior administration - including those of the secrecy-obsessed Richard Nixon and George W Bush - to plug all leaks. It's because those methods are the only ones preventing the US government from doing whatever it wants in complete secrecy and without any accountability of any kind.

Silencing government sources is the key to disabling investigative journalism and a free press. That is why the New Yorker's Jane Mayer told whistleblowing advocate Jesselyn Radack last April: "when our sources are prosecuted, the news-gathering process is criminalized, so it's incumbent upon all journalists to speak up."

Indeed, if you talk to leading investigative journalists they will tell you that the Obama war on whistleblowers has succeeded in intimidating not only journalists' sources but also investigative journalists themselves. Just look at the way the DOJ has pursued and threatened with prison one of the most accomplished and institutionally protected investigative journalists in the country - James Risen - and it's easy to see why the small amount of real journalism done in the US, most driven by unauthorized leaks, is being severely impeded. This morning's Washington Post article on the DOJ's email snooping to find the NYT's Stuxnet source included this anonymous quote: "People are feeling less open to talking to reporters given this uptick. There is a definite chilling effect in government due to these investigations."

For authoritarians who view assertions of government power as inherently valid and government claims as inherently true, none of this will be bothersome. Under that mentality, if the government decrees that something shall be secret, then it should be secret, and anyone who defies that dictate should be punished as a felon - or even a traitor. That view is typically accompanied by the belief that we can and should trust our leaders to be good and do good even if they exercise power in the dark, so that transparency is not only unnecessary but undesirable.

But the most basic precepts of human nature, political science, and the American founding teach that power exercised in the dark will be inevitably abused. Secrecy is the linchpin of abuse of power. That's why those who wield political power are always driven to destroy methods of transparency. About this fact, Thomas Jefferson wrote in an 1804 letter to John Tyler [emphasis added]:

"Our first object should therefore be, to leave open to him all the avenues of truth. The most effectual hitherto found, is freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions."

About all that, Yale law professor David A Schultz observed: "For Jefferson, a free press was the tool of public criticism. It held public officials accountable, opening them up to the judgment of people who could decide whether the government was doing good or whether it had anything to hide. . . . A democratic and free society is dependent upon the media to inform."

There should be no doubt that destroying this method of transparency - not protection of legitimate national security secrets- is the primary effect, and almost certainly the intent, of this unprecedented war on whistleblowers. Just consider the revelations that have prompted the Obama DOJ's war on whistleblowers, whereby those who leak are not merely being prosecuted, but threatened with decades or even life in prison for "espionage" or "aiding the enemy".

Does anyone believe it would be better if we remained ignorant about the massive waste, corruption and illegality plaguing the NSA's secret domestic eavesdropping program (Thomas Drake); or the dangerously inept CIA effort to infiltrate the Iranian nuclear program but which ended up assisting that program (Jeffrey Sterling); or the overlooking of torture squads in Iraq, the gunning down of journalists and rescuers in Baghdad, or the pressure campaign to stop torture investigations in Spain and Germany (Bradley Manning); or the decision by Obama to wage cyberwar on Iran, which the Pentagon itself considers an act of war (current DOJ investigation)?

Like all of the Obama leak prosecutions - see here - none of those revelations resulted in any tangible harm, yet all revealed vital information about what our government was doing in secret. As long-time DC lawyer Abbe Lowell, who represents indicted whistleblower Stephen Kim, put it: what makes the Obama DOJ's prosecutions historically unique is that they "don't distinguish between bad people - people who spy for other governments, people who sell secrets for money - and people who are accused of having conversations and discussions". Not only doesn't it draw this distinction, but it is focused almost entirely on those who leak in order to expose wrongdoing and bring about transparency and accountability.

That is the primary impact of all of this. A Bloomberg report last October on this intimidation campaign summarized the objections this way: "the president's crackdown chills dissent, curtails a free press and betrays Obama's initial promise to 'usher in a new era of open government.'"

The Obama administration does not dislike leaks of classified information. To the contrary, it is a prolific exploiter of exactly those types of leaks - when they can be used to propagandize the citizenry to glorify the president's image as a tough guy, advance his political goals or produce a multi-million-dollar Hollywood film about his greatest conquest. Leaks are only objectionable when they undercut that propaganda by exposing government deceit, corruption and illegality.

Few events have vividly illustrated this actual goal as much as the lengthy prison sentence this week meted out to former CIA officer John Kiriakou. It's true that Kiriakou is not a pure anti-torture hero given that, in his first public disclosures, he made inaccurate claims about the efficacy of waterboarding. But he did also unequivocally condemn waterboarding and other methods as torture. And, as FAIR put it this week, whatever else is true: "The only person to do time for the CIA's torture policies appears to be a guy who spoke publicly about them, not any of the people who did the actual torturing."

Despite zero evidence of any harm from his disclosures, the federal judge presiding over his case - the reliably government-subservient US District Judge Leonie Brinkema - said she "would have given Kiriakou much more time if she could." As usual, the only real criminals in the government are those who expose or condemn its wrongdoing.

Exactly the same happened with revelations by the New York Times of the illegal Bush NSA warrantless eavesdropping program. None of the officials who eavesdropped on Americans without the warrants required by law were prosecuted. The telecoms that illegally cooperated were retroactively immunized from all legal accountability by the US Congress. The only person to suffer recriminations from that scandal was Thomas Tamm, the mid-level DOJ official who discovered the program and told the New York Times about it, and then had his life ruined with vindictive investigations.

This Obama whistleblower war has nothing to do with national security. It has nothing to do with punishing those who harm the country with espionage or treason.

It has everything to do with destroying those who expose high-level government wrongdoing. It is particularly devoted to preserving the government's ability to abuse its power in secret by intimidating and deterring future acts of whistleblowing and impeding investigative journalism. This Obama whistleblower war continues to escalate because it triggers no objections from Republicans (who always adore government secrecy) or Democrats (who always adore what Obama does), but most of all because it triggers so few objections from media outlets, which - at least in theory - suffer the most from what is being done.

UPDATE

Kevin Gosztola of Firedoglake this week interviewed Kiriakou and provides much more detail on the charges against him, including the overblown allegation that he leaked the name of one of the torturers to a journalist who then passed it on to the ACLU for filing in a classified court pleading. It's well worth reading the background of what was done to Kiriakou, who - whatever else you may think of his actions - was, as Gosztola writes, "the first member of the agency to publicly acknowledge that torture was official US policy under the administration of President George W. Bush".

Meanwhile, Trevor Timm of Electronic Frontier Foundation and the Freedom of the Press Foundation (of which I'm a Board Member) has more on the highly invasive and inappropriate tactics being used by the DOJ to try to root out the NYT's Stuxnet source.

UPDATE II

Speaking of the Obama administration's propensity to leak classified information for propagandistic and other political purposes, numerous Senators have indicated their intent to investigate whether the CIA and other officials passed classified information about the bin Laden raid to the makers of Zero Dark Thirty in order to influence the film. If you have any doubts about whether this happened, just consider what ZDT screenwriter Mark Boal just said in Time Magazine about this film - here - and decide for yourself.

Corporate Terrorism in West, Texas

The Full Weight of Justice
by RUSSELL MOKHIBER


In his first statement in response to the Boston bombings, President Obama said that “Michelle and I send our deepest thoughts and prayers to the families of the victims in the wake of this senseless loss.”

In the his first statement in response to the explosion outside Waco, Texas, President Obama said that “our prayers go out to the people of West, Texas in the aftermath of last night’s deadly explosion at a fertilizer plant.”

In his statement on Boston, President Obama said that “any responsible individuals, any responsible groups will feel the full weight of justice.”

But when it came to the explosion in Texas, President Obama said nothing about responsible individuals, responsible groups or the full weight of justice.

Why not?

Because when it comes to street crime, President Obama is the top cop.

When it comes to apparent corporate crime and violence, he’s the enabler in chief.

Make no mistake, if it becomes clear that the Texas explosion was triggered by a terrorist attack, a la the Oklahoma City bombing, then Obama will begin talking about “the full weight of justice.”

But if the focus is corporate crime and violence, corporate recklessness, workplace safety, “full weight of justice” rhetoric won’t see the light of day.

After all, it was Obama’s Justice Department that in December 2011 settled the case of the April 2010 Massey Energy Upper Big Branch explosion, which killed 29 miners, with a “non prosecution agreement.”

Outrageously, the Justice Department said it would not criminally prosecute Massey even though the Labor Department concluded that Massey’s “unlawful policies and practices” were the “root cause of this tragedy.”

Massey had a track record of skirting the law and even kept two sets of books for at Upper Big Branch — one for internal use, which kept track of workplace hazards — and one for law enforcement, which did not.

David Uhlmann, the former head of the Department of Justice’s Environmental Crimes Section, and now a Professor at the University of Michigan Law School, says had he been in charge of the Massey Energy case, he would have criminally prosecuted Massey.

In his tenure at the Justice Department, he criminally prosecuted many major corporations for wrongdoing arguably less serious than one that results in the deaths of 29 workers.

And he says that the Massey non prosecution agreement is just part of a disturbing trend, one that has accelerated under the Obama administration, toward settling major corporate crime cases with deferred and non prosecution agreements.

National security letters deemed unconstitutional

RT - March 15, 2013


A United States federal judge has declared that the super-secret national security letters that let the government garner info on Americans without their consent are unconstitutional.

The Federal Bureau of Investigation has issued hundreds of thousands of NSLs to private businesses in order to obtain sensitive information on clients without waiting for a warrant or subpoena. Unlike those options, though, NSLs involve next to no oversight. Instead all that’s required is that a Special Agent in Charge signs off and says that the information is relevant to an investigation.

On Friday, though, US District Judge Susan Illston said she thought NSLs were illegal and ordered the government to stop issuing them.

“We are very pleased that the Court recognized the fatal constitutional shortcomings of the NSL statute,” Electronic Frontier Foundation Senior Staff Attorney Matt Zimmerman tells Wired. The EFF is currently representing a telecommunication company that’s fighting an NSL received back in 2011, but under Judge Illston’s ruling telecoms won’t be required to hand off intelligence to the government anymore.

“The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience,” says Zimmerman.

Although NSLs are nowhere near as well-known as other types of orders used to obtain information, they are issued with relatively high frequency. Earlier this month, Google revealed that it receives anywhere from zero to 999 letters a year since 2009, but declined to give an actual figure since the Justice Department fears “releasing exact numbers might reveal information about investigations.”

If a telecom or Internet company is given an NSL, they are usually compelled to give the government account details about certain customers. Without relying on court approval, though, those requests can be issued with ease, raising concerns from many that the government is operating in secrecy to spy on Americans.

Speaking with RT last year, WikiLeaks editor Julian Assange said “hundreds of national security letters every day” are being issued by the US government.

“Once the FBI is able to do this snooping, to find out who Americans are communicating with and associating with, there’s no remedy that makes them whole after the fact. So there needs to be some process in place so the court has the ability ahead of time to step in,” Zimmerman told Wired last year.

After making her ruling on Friday, Judge Illston also granted a 90 day stay to ensure that the government has ample time to ask for an appeal.

The Will of the People Doesn’t Mean Jack Shit to the Drug Warriors

Gangsters With Federal Pensions
by DAVE HUMMELS


The Associated Press reports that eight former DEA administrators are urging the Obama administration to sue Washington and Colorado over their voter-approved moves toward marijuana legalization.

One former chief, Peter Bensinger, fears that successful legalization efforts will lead to “a domino effect” in the US. Where have we heard that phrase before? Bensinger continues breathlessly, “My fear is that the Justice Department will do what they are doing now: do nothing and say nothing … If they don’t act now, these laws will be fully implemented in a matter of months.”

So drug warriors are losing their minds over Colorado and Washington. Good! We can only hope that Bensinger’s dire predictions come true and that more Americans are indeed waking up to the absurdity of marijuana prohibition.

The former DEA bureaucrats argue, accurately, that marijuana remains illegal under the Controlled Substances Act. Even in cases involving medical marijuana, the federal government may abuse the commerce clause as a rationale to criminalize users, growers and sellers of marijuana (per Gonzales v. Raich). The commerce clause has become the federal government’s drug war equivalent of catch-all disorderly conduct statutes in the states.

Unfortunately, these goons have a solid case to present to US Attorney General Holder. In New State Ice Co. v. Liebmann (1932), US Supreme Court Justice Louis D. Brandeis said, “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” But today’s political class views federalism as archaic.

Hopefully the administration will choose to ignore this thuggish recommendation. But if they do decide to litigate, this will be another sign that the feds don’t give a damn about the will of the people. Liberty-loving Americans should respond to this federal intrusion with a massive wave of civil disobedience.
Let’s start by publicly shaming the DEA heads mentioned by the AP: “Bensinger, John Bartels, Robert Bonner, Thomas Constantine, Asa Hutchinson, John Lawn, Donnie Marshall and Francis Mullen.” Get to know their names, libertarians. They are your enemies!

Then, let’s publicize the efforts of these authoritarians to undermine the voters of Colorado and Washington. Ask them why they continue to support a policy with openly racist origins which has resulted in mass incarceration. Publicly reveal the motives of the police agencies that enforce these laws . When drug warriors drone on about “protecting the children,” confront them with the horrific reality of wrong door raids, slaughtered family pets and children terrorized with flash-bangs. Wherever an apologist for prohibition gives a speech or attends a meeting, he or she should be met by throngs of boisterous picketers.

As we expose these petty tyrants, we should also seek opportunities to throw a wrench into the machinery of prohibition. A mass movement of jury nullification in drug cases may be a promising tactic. Prosecutors can use voir dire to remove one or two questionable jurors, but what if nullification becomes widespread? They can’t remove all of us. In the future, we should view jury duty as a chance to liberate non-violent people from the state’s clutches.

In Tao Te Ching, the Chinese sage Lao Tzu writes, “The more laws are posted, the more robbers and thieves there are.” Time and time again, this observation has been proven correct. The violence of the drug war is perpetuated by government, yet officials insist they must keep fighting. In their vile attempt to protect their old turf, former DEA bosses show their true colors. They are gangsters with federal pensions. They will do anything to ensure that they and their ilk continue to get their cut of drug war booty. It is up to us to expose their racket and to finish the job sensible voters in Colorado and Washington started in November.

US drugs prosecutors switch sides to defend accused Colombian traffickers

After working to take down cartels, former officials say America's 'war on drugs' is misguided and the human cost too high
Rory Carroll in Los Angeles
The Guardian, Wednesday 27 February 2013


US prosecutors and other senior officials who spearheaded the war against drug cartels have quit their jobs to defend Colombian cocaine traffickers, saying their clients are not bad people and that United States drug policy is wrong.

Senior former assistant US attorneys and Drug Enforcement Administration agents are turning years of experience in investigating, indicting and extraditing narcos to the advantage of the alleged traffickers they now represent.

"I'm not embarrassed about the fact that I changed sides," said Robert Feitel, a Washington-based attorney who used to pursue traffickers and money launderers at the Department of Justice. "And I'm not shy about saying that no one knows better how a prosecutor thinks. That's what people get when they come to me. There are lots of hidden things to know about these cases."

The fence-jumpers include Bonnie Klapper, who was feted for taking down the Norte del Valle cartel, Leo Arreguin, who headed the DEA's office in Bogota, and reportedly former members of the Immigration and Customs Enforcement Agency, Ice. They work in separate legal practices with their own clients, not as a group.

In interviews with the Guardian, Feitel and Klapper spoke of recognising the humanity of their clients and called for alternatives to a four-decade-old "war on drugs" which costs billions of dollars and incarcerates thousands.

Feitel (pictured) called for cocaine and cannabis to be legalised and complained that extradited drug suspects were treated worse than Guantanamo Bay detainees. "I don't think I could ever be a prosecutor again. The human drama that I see on this side is sometimes more than I can bear."

The sight of high-profile former US officials visiting clients in Colombian and US jails has astonished observers in Colombia – which has long followed Washington's lead on drugs – but passed largely unnoticed in the US.

Last December Arreguin, who was director of the DEA in Colombia from 1998 – 2003, tried to visit the alleged drug lord Diego Pérez, alias Diego Rastrojo, at his jail in Giron, Santander, but was turned away because he lacked permission, local media reported. Rastrojo, a former member of the Farc, is accused of commanding 800 hitmen and smuggling tonnes of cocaine. Contacted at his home in Virginia, Arreguin declined to be interviewed: "I have nothing to say."

Feitel, who worked closely with the Department of Justice's Narcotic and Dangerous Drugs Section until retiring from public service in 2009, said he grew frustrated with official bungling in drug-related cases. "I realised I no longer wanted to be part of this process. It was time to go. After 22 years, enough."

He became a defence lawyer, started learning Spanish and uses his expertise to represent around two dozen Colombian clients from a DC-based office. "It's hard to defend a Colombian on drugs trafficking if you don't understand the predicate of how drugs trafficking currently works in Colombia."

With Colombia's justice system geared towards extradition suspects face intense pressure to trade information for a deal with US authorities before fellow arrestees do the same. "You can try to head off your problem by trying to hire a US lawyer and get ahead of the curve so to speak."

Traffickers' lawyers usually trade reduced sentences for information, but Feitel said he liked to fight cases if justified on merit. "Otherwise I'm just like everyone else. But I'm not because I was a prosecutor for so long." He occasionally teams up with his wife, a defence attorney, and another colleague at a different firm. "We are fighters for our clients, we don't just say to the government, OK, you can have it your way. I'm not in it for the theory, I'm in it to win. "

Often government cases, when analysed, proved weak, he said. "My job is to try to maximise the ability of my clients to cooperate, if that's what they want. And if they want to fight, then my job is to fight every single step once they come to the United States."

He fought "tooth and nail" for Ramiro Anturi, a Colombian prosecutor accused of leaking information to traffickers. Anturi received an unexpectedly light sentence – 55 months despite the DEA trumpeting the case as evidence it would "not tolerate any acts that put our agents' lives in jeopardy".

Feitel said he was shaken by the "trauma" of suspects who were extradited to the US speaking no English, with no visits from relatives denied visas. "They have no one to hug them. There is a lot of human anguish that I had not previously seen. I've had clients whose parents have died while they've been in jail. It's a pretty terrible fate to be extradited. While it might be defensible to do it to the leaders I don't think it's defensible to do it to the rank and file traffickers in Colombia. I find it really troubling."

He said the US system punished traffickers not according to their importance but the quantity of drugs, meaning a truck driver nabbed with a big consignment could face a longer stretch than a capo caught with a lesser amount. The practise of squeezing information and sending traffickers back to Colombia after their sentence, Feitel said, left them vulnerable to revenge. "Sooner or later someone is going to get killed and that will deter others from talking."

He said most of his clients had no history of violence but that even those implicated in kidnapping and murder were entitled to a defence. "I don't represent people I don't like. So I like all my clients." The former prosecutor said he had some regrets about his previous career. "I try to grow with what I do. I think I would change certain things that I did."

Former colleagues respected him for his honesty even though now they were on opposite sides, he said. "When we disagree, we do it like professionals. Agents are pretty savvy; they know when there are weaknesses in their case."

As an assistant US attorney Bonnie Klapper, working from New York, earned a high profile in helping to dismantle the Norte del Valle cartel, a role publicised in the books The Takedown, by Jeffrey Robinson, and El Cartel de los Sapos, by Andres Lopez Lopez, a best-seller in Colombia which was turned into a telenovela and a film.

Klapper (pictured) retired from public service last February after 26 years and went into private practice with offices in New York and Miami. Two months later Colombian media reported her visiting La Picota jail in Bogota to see Andrés Arroyave, alias Máquina, a 25-year-old alleged drug lord accused of killing a lawyer and a DEA informant, among others, in revenge for his father's murder. He has a reported $100m fortune.

In an email interview Kappler said she stopped being an assistant US attorney because of long commutes, threats to her life and meddling supervisors. "I don't see that I have moved from one side of the fence to the other. As an AUSA, I never felt it was my job to obtain the harshest sentence; I always felt that my mission was to see that justice was done. I feel the same about my role now. The system only works when there are hard-working, honest people with integrity on both the government and the defense side."

Former colleagues supported her switch, she said. "In fact, those with whom I worked previously are happy to see me on the other side, as they know they can trust me and I will capably represent my clients. The few negative comments I have heard have been either from agents (not AUSAs) who did not know me before."

Unlike Feitel, Klapper said her new role had not really changed her perspective. "As a prosecutor, while I did prosecute a number of very bad, violent individuals, the vast majority … were good people who made bad choices."

For the people she once pursued, and those she now defended, trafficking was a family business and route out of poverty, she said. "I have always felt that it was unfair of our government to place all of the onus on Colombians or Mexicans or Central Americans when the demand for the drugs comes from our own country."

Klapper called for "more innovative solutions" to replace the drug war's "endless cycle of arrests, prosecutions and convictions, where there is always someone waiting in the wings to take the place of the last individual convicted".

Feitel was more emphatic in calling the drug war a failure, saying decades of effort, billions of dollars and countless lives had made no appreciable difference to the quantity of drugs on American streets. He urged federal authorities to legalise and regulate cannabis and cocaine. "And I say that even though it would be bad for my business."

Chilling Legal Memo From Obama DOJ Justifies Assassination of US Citizens

Tuesday, February 5, 2013 by The Guardian
The president's partisan lawyers purport to vest him with the most extreme power a political leader can seize
by Glenn Greenwald


The most extremist power any political leader can assert is the power to target his own citizens for execution without any charges or due process, far from any battlefield. The Obama administration has not only asserted exactly that power in theory, but has exercised it in practice. In September 2011, it killed US citizen Anwar Awlaki in a drone strike in Yemen, along with US citizen Samir Khan, and then, in circumstances that are still unexplained, two weeks later killed Awlaki's 16-year-old American son Abdulrahman with a separate drone strike in Yemen.

Since then, senior Obama officials including Attorney General Eric Holder and John Brennan, Obama's top terrorism adviser and his current nominee to lead the CIA, have explicitly argued that the president is and should be vested with this power. Meanwhile, a Washington Post article from October reported that the administration is formally institutionalizing this president's power to decide who dies under the Orwellian title "disposition matrix".

When the New York Times back in April, 2010 first confirmed the existence of Obama's hit list, it made clear just what an extremist power this is, noting: "It is extremely rare, if not unprecedented, for an American to be approved for targeted killing." The NYT quoted a Bush intelligence official as saying "he did not know of any American who was approved for targeted killing under the former president". When the existence of Obama's hit list was first reported several months earlier by the Washington Post's Dana Priest, she wrote that the "list includes three Americans".

What has made these actions all the more radical is the absolute secrecy with which Obama has draped all of this. Not only is the entire process carried out solely within the Executive branch - with no checks or oversight of any kind - but there is zero transparency and zero accountability. The president's underlings compile their proposed lists of who should be executed, and the president - at a charming weekly event dubbed by White House aides as "Terror Tuesday" - then chooses from "baseball cards" and decrees in total secrecy who should die. The power of accuser, prosecutor, judge, jury, and executioner are all consolidated in this one man, and those powers are exercised in the dark.

In fact, The Most Transparent Administration Ever™ has been so fixated on secrecy that they have refused even to disclose the legal memoranda prepared by Obama lawyers setting forth their legal rationale for why the president has this power. During the Bush years, when Bush refused to disclose the memoranda from his Office of Legal Counsel (OLC) that legally authorized torture, rendition, warrantless eavesdropping and the like, leading Democratic lawyers such as Dawn Johnsen (Obama's first choice to lead the OLC) vehemently denounced this practice as a grave threat, warning that "the Bush Administration's excessive reliance on 'secret law' threatens the effective functioning of American democracy" and "the withholding from Congress and the public of legal interpretations by the [OLC] upsets the system of checks and balances between the executive and legislative branches of government."

But when it comes to Obama's assassination power, this is exactly what his administration has done. It has repeatedly refused to disclose the principal legal memoranda prepared by Obama OLC lawyers that justified his kill list. It is, right now, vigorously resisting lawsuits from the New York Times and the ACLU to obtain that OLC memorandum. In sum, Obama not only claims he has the power to order US citizens killed with no transparency, but that even the documents explaining the legal rationale for this power are to be concealed. He's maintaining secret law on the most extremist power he can assert.

Last night, NBC News' Michael Isikoff released a 16-page "white paper" prepared by the Obama DOJ that purports to justify Obama's power to target even Americans for assassination without due process (the memo is embedded in full below). This is not the primary OLC memo justifying Obama's kill list - that is still concealed - but it appears to track the reasoning of that memo as anonymously described to the New York Times in October 2011.

This new memo is entitled: "Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of Al-Qa'ida or An Associated Force". It claims its conclusion is "reached with recognition of the extraordinary seriousness of a lethal operation by the United States against a US citizen". Yet it is every bit as chilling as the Bush OLC torture memos in how its clinical, legalistic tone completely sanitizes the radical and dangerous power it purports to authorize.

I've written many times at length about why the Obama assassination program is such an extreme and radical threat - see here for one of the most comprehensive discussions, with documentation of how completely all of this violates Obama and Holder's statements before obtaining power - and won't repeat those arguments here. Instead, there are numerous points that should be emphasized about the fundamentally misleading nature of this new memo:

1. Equating government accusations with guilt

The core distortion of the War on Terror under both Bush and Obama is the Orwellian practice of equating government accusations of terrorism with proof of guilt. One constantly hears US government defenders referring to "terrorists" when what they actually mean is: those accused by the government of terrorism. This entire memo is grounded in this deceit.

Time and again, it emphasizes that the authorized assassinations are carried out "against a senior operational leader of al-Qaida or its associated forces who poses an imminent threat of violent attack against the United States." Undoubtedly fearing that this document would one day be public, Obama lawyers made certain to incorporate this deceit into the title itself: "Lawfulness of a Lethal Operation Directed Against a US Citizen Who is a Senior Operational Leader of al-Qaida or An Associated Force."

This ensures that huge numbers of citizens - those who spend little time thinking about such things and/or authoritarians who assume all government claims are true - will instinctively justify what is being done here on the ground that we must kill the Terrorists or joining al-Qaida means you should be killed. That's the "reasoning" process that has driven the War on Terror since it commenced: if the US government simply asserts without evidence or trial that someone is a terrorist, then they are assumed to be, and they can then be punished as such - with indefinite imprisonment or death.

But of course, when this memo refers to "a Senior Operational Leader of al-Qaida", what it actually means is this: someone whom the President - in total secrecy and with no due process - has accused of being that. Indeed, the memo itself makes this clear, as it baldly states that presidential assassinations are justified when "an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the US".

This is the crucial point: the memo isn't justifying the due-process-free execution of senior al-Qaida leaders who pose an imminent threat to the US. It is justifying the due-process-free execution of people secretly accused by the president and his underlings, with no due process, of being that. The distinction between (a) government accusations and (b) proof of guilt is central to every free society, by definition, yet this memo - and those who defend Obama's assassination power - willfully ignore it.

Those who justify all of this by arguing that Obama can and should kill al-Qaida leaders who are trying to kill Americans are engaged in supreme question-begging. Without any due process, transparency or oversight, there is no way to know who is a "senior al-Qaida leader" and who is posing an "imminent threat" to Americans. All that can be known is who Obama, in total secrecy, accuses of this.

(Indeed, membership in al-Qaida is not even required to be assassinated, as one can be a member of a group deemed to be an "associated force" of al-Qaida, whatever that might mean: a formulation so broad and ill-defined that, as Law Professor Kevin Jon Heller argues, it means the memo "authorizes the use of lethal force against individuals whose targeting is, without more, prohibited by international law".)

The definition of an extreme authoritarian is one who is willing blindly to assume that government accusations are true without any evidence presented or opportunity to contest those accusations. This memo - and the entire theory justifying Obama's kill list - centrally relies on this authoritarian conflation of government accusations and valid proof of guilt.

They are not the same and never have been. Political leaders who decree guilt in secret and with no oversight inevitably succumb to error and/or abuse of power. Such unchecked accusatory decrees are inherently untrustworthy (indeed, Yemen experts have vehemently contested the claim that Awlaki himself was a senior al-Qaida leader posing an imminent threat to the US). That's why due process is guaranteed in the Constitution and why judicial review of government accusations has been a staple of western justice since the Magna Carta: because leaders can't be trusted to decree guilt and punish citizens without evidence and an adversarial process. That is the age-old basic right on which this memo, and the Obama presidency, is waging war.

2. Creating a ceiling, not a floor

The most vital fact to note about this memorandum is that it is not purporting to impose requirements on the president's power to assassinate US citizens. When it concludes that the president has the authority to assassinate "a Senior Operational Leader of al-Qaida" who "poses an imminent threat of violent attack against the US" where capture is "infeasible", it is not concluding that assassinations are permissible only in those circumstances. To the contrary, the memo expressly makes clear that presidential assassinations may be permitted even when none of those circumstances prevail: "This paper does not attempt to determine the minimum requirements necessary to render such an operation lawful." Instead, as the last line of the memo states: "it concludes only that the stated conditions would be sufficient to make lawful a lethal operation" - not that such conditions are necessary to find these assassinations legal. The memo explicitly leaves open the possibility that presidential assassinations of US citizens may be permissible even when the target is not a senior al-Qaida leader posing an imminent threat and/or when capture is feasible.

Critically, the rationale of the memo - that the US is engaged in a global war against al-Qaida and "associated forces" - can be easily used to justify presidential assassinations of US citizens in circumstances far beyond the ones described in this memo. If you believe the president has the power to execute US citizens based on the accusation that the citizen has joined al-Qaida, what possible limiting principle can you cite as to why that shouldn't apply to a low-level al-Qaida member, including ones found in places where capture may be feasible (including US soil)? The purported limitations on this power set forth in this memo, aside from being incredibly vague, can be easily discarded once the central theory of presidential power is embraced.

3. Relies on the core Bush/Cheney theory of a global battlefield

The primary theory embraced by the Bush administration to justify its War on Terror policies was that the "battlefield" is no longer confined to identifiable geographical areas, but instead, the entire globe is now one big, unlimited "battlefield". That theory is both radical and dangerous because a president's powers are basically omnipotent on a "battlefield". There, state power is shielded from law, from courts, from constitutional guarantees, from all forms of accountability: anyone on a battlefield can be killed or imprisoned without charges. Thus, to posit the world as a battlefield is, by definition, to create an imperial, omnipotent presidency. That is the radical theory that unleashed all the rest of the controversial and lawless Bush/Cheney policies.

This "world-is-a-battlefield" theory was once highly controversial among Democrats. John Kerry famously denounced it when running for president, arguing instead that the effort against terrorism is "primarily an intelligence and law enforcement operation that requires cooperation around the world".

But this global-war theory is exactly what lies at heart of the Obama approach to Terrorism generally and this memo specifically. It is impossible to defend Obama's assassination powers without embracing it (which is why key Obama officials have consistently done so). That's because these assassinations are taking place in countries far from any war zone, such as Yemen and Somalia. You can't defend the application of "war powers" in these countries without embracing the once-very-controversial Bush/Cheney view that the whole is now a "battlefield" and the president's war powers thus exist without geographic limits.

This new memo makes clear that this Bush/Cheney worldview is at the heart of the Obama presidency. The president, it claims, "retains authority to use force against al-Qaida and associated forces outside the area of active hostilities". In other words: there are, subject to the entirely optional "feasibility of capture" element, no geographic limits to the president's authority to kill anyone he wants. This power applies not only to war zones, but everywhere in the world that he claims a member of al-Qaida is found. This memo embraces and institutionalizes the core Bush/Cheney theory that justified the entire panoply of policies Democrats back then pretended to find so objectionable.

4. Expanding the concept of "imminence" beyond recognition

The memo claims that the president's assassination power applies to a senior al-Qaida member who "poses an imminent threat of violent attack against the United States". That is designed to convince citizens to accept this power by leading them to believe it's similar to common and familiar domestic uses of lethal force on US soil: if, for instance, an armed criminal is in the process of robbing a bank or is about to shoot hostages, then the "imminence" of the threat he poses justifies the use of lethal force against him by the police.

But this rhetorical tactic is totally misleading. The memo is authorizing assassinations against citizens in circumstances far beyond this understanding of "imminence". Indeed, the memo expressly states that it is inventing "a broader concept of imminence" than is typically used in domestic law. Specifically, the president's assassination power "does not require that the US have clear evidence that a specific attack . . . will take place in the immediate future". The US routinely assassinates its targets not when they are engaged in or plotting attacks but when they are at home, with family members, riding in a car, at work, at funerals, rescuing other drone victims, etc.

Many of the early objections to this new memo have focused on this warped and incredibly broad definition of "imminence". The ACLU's Jameel Jaffer told Isikoff that the memo "redefines the word imminence in a way that deprives the word of its ordinary meaning". Law Professor Kevin Jon Heller called Jaffer's objection "an understatement", noting that the memo's understanding of "imminence" is "wildly overbroad" under international law.

Crucially, Heller points out what I noted above: once you accept the memo's reasoning - that the US is engaged in a global war, that the world is a battlefield, and the president has the power to assassinate any member of al-Qaida or associated forces - then there is no way coherent way to limit this power to places where capture is infeasible or to persons posing an "imminent" threat. The legal framework adopted by the memo means the president can kill anyone he claims is a member of al-Qaida regardless of where they are found or what they are doing.

The only reason to add these limitations of "imminence" and "feasibility of capture" is, as Heller said, purely political: to make the theories more politically palatable. But the definitions for these terms are so vague and broad that they provide no real limits on the president's assassination power. As the ACLU's Jaffer says: "This is a chilling document" because "it argues that the government has the right to carry out the extrajudicial killing of an American citizen" and the purported limits "are elastic and vaguely defined, and it's easy to see how they could be manipulated."

5. Converting Obama underlings into objective courts

This memo is not a judicial opinion. It was not written by anyone independent of the president. To the contrary, it was written by life-long partisan lackeys: lawyers whose careerist interests depend upon staying in the good graces of Obama and the Democrats, almost certainly Marty Lederman and David Barron. Treating this document as though it confers any authority on Obama is like treating the statements of one's lawyer as a judicial finding or jury verdict.

Indeed, recall the primary excuse used to shield Bush officials from prosecution for their crimes of torture and illegal eavesdropping: namely, they got Bush-appointed lawyers in the DOJ to say that their conduct was legal, and therefore, it should be treated as such. This tactic - getting partisan lawyers and underlings of the president to say that the president's conduct is legal - was appropriately treated with scorn when invoked by Bush officials to justify their radical programs. As Digby wrote about Bush officials who pointed to the OLC memos it got its lawyers to issue about torture and eavesdropping, such a practice amounts to:

"validating the idea that obscure Justice Department officials can be granted the authority to essentially immunize officials at all levels of the government, from the president down to the lowest field officer, by issuing a secret memo. This is a very important new development in western jurisprudence and one that surely requires more study and consideration. If Richard Nixon and Ronald Reagan had known about this, they could have saved themselves a lot of trouble."

Life-long Democratic Party lawyers are not going to oppose the terrorism policies of the president who appointed them. A president can always find underlings and political appointees to endorse whatever he wants to do. That's all this memo is: the by-product of obsequious lawyers telling their Party's leader that he is (of course) free to do exactly that which he wants to do, in exactly the same way that Bush got John Yoo to tell him that torture was not torture, and that even it if were, it was legal.

That's why courts, not the president's partisan lawyers, should be making these determinations. But when the ACLU tried to obtain a judicial determination as to whether Obama is actually authorized to assassinate US citizens, the Obama DOJ went to extreme lengths to block the court from ruling on that question. They didn't want independent judges to determine the law. They wanted their own lawyers to do so.

That's all this memo is: Obama-loyal appointees telling their leader that he has the authority to do what he wants. But in the warped world of US politics, this - secret memos from partisan lackeys - has replaced judicial review as the means to determine the legality of the president's conduct.

6. Making a mockery of "due process"

The core freedom most under attack by the War on Terror is the Fifth Amendment's guarantee of due process. It provides that "no person shall be . . . deprived of life . . . without due process of law". Like putting people in cages for life on island prisons with no trial, claiming that the president has the right to assassinate US citizens far from any battlefield without any charges or trial is the supreme evisceration of this right.

The memo pays lip service to the right it is destroying: "Under the traditional due process balancing analysis . . . . we recognize that there is no private interest more weighty than a person's interest in his life." But it nonetheless argues that a "balancing test" is necessary to determine the extent of the process that is due before the president can deprive someone of their life, and further argues that, as the New York Times put it when this theory was first unveiled: "while the Fifth Amendment's guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch."

Stephen Colbert perfectly mocked this theory when Eric Holder first unveiled it to defend the president's assassination program. At the time, Holder actually said: "due process and judicial process are not one and the same." Colbert interpreted that claim as follows:

"Trial by jury, trial by fire, rock, paper scissors, who cares? Due process just means that there is a process that you do. The current process is apparently, first the president meets with his advisers and decides who he can kill. Then he kills them."

It is fitting indeed that the memo expressly embraces two core Bush/Cheney theories to justify this view of what "due process" requires. First, it cites the Bush DOJ's core view, as enunciated by John Yoo, that courts have no role to play in what the president does in the War on Terror because judicial review constitutes "judicial encroachment" on the "judgments by the President and his national security advisers as to when and how to use force". And then it cites the Bush DOJ's mostly successful arguments in the 2004 Hamdi case that the president has the authority even to imprison US citizens without trial provided that he accuses them of being a terrorist.

The reason this is so fitting is because, as I've detailed many times, it was these same early Bush/Cheney theories that made me want to begin writing about politics, all driven by my perception that the US government was becoming extremist and dangerous. During the early Bush years, the very idea that the US government asserted the power to imprison US citizens without charges and due process (or to eavesdrop on them) was so radical that, at the time, I could hardly believe they were being asserted out in the open.

Yet here we are almost a full decade later. And we have the current president asserting the power not merely to imprison or eavesdrop on US citizens without charges or trial, but to order them executed - and to do so in total secrecy, with no checks or oversight. If you believe the president has the power to order US citizens executed far from any battlefield with no charges or trial, then it's truly hard to conceive of any asserted power you would find objectionable.

DOJ White Paper

Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Q... by

Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Q... by