27 June 2011


Reason | A. Barton Hinkle | Obama's War on the Rule of Law: The Bush administration's worst policies live on in Obama's White House.

The brief against Bush encompassed numerous charges: his use of signing statements to provide a pretext for disregarding parts of certain legislation; the indefinite detention without trial of suspected enemy combatants in Camp Delta at Guantanamo Bay; the use of military tribunals; the Patriot Act; his administration's use of warrantless wiretapping and extraordinary rendition; the use of national-security letters to comb through private information; and so on. Policies such as these "evoked the specter of tyranny," put America on the slippery slope to fascism, and were generally bad for children and other living things.

With Obama's election, the nation supposedly said goodbye to all that. The clouds broke, the fog lifted, and the sunlight of civil liberties once again bathed the nation in its golden hue. Except: Nothing like that happened. Instead, the Obama administration adopted every single one of the policies listed above. Some of the more principled progressives have voiced outrage and a sense of betrayal. The more partisan types have politely averted their gaze.

But Obama has not confined his disdain for the rule of law to the Bush inheritance. He has carved out new realms for it.
"Doing the same thing but more of it" was not the "change" people had in mind.

The Rule of Law is the single most important institution we have. It is more important than jury trials, or elections, or free speech. There's no point in getting to influence what the rules are if the rules aren't followed.

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NY Times | Charlie Savage | 2 Top Lawyers Lost to Obama in Libya War Policy Debate

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.
Lawyers are like psychics: you ask enough of them the same question, and eventually you'll find one who'll give you the answer you want to hear.

Actually, administration lawyers like Koh have more in common with courtiers than they do with the typical attorney.

(See also Glenn Greenwald)

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Businessweek | Ricardo Alonso-Zaldivar | A twist in Obama's health care law

President Barack Obama's health care law would let several million middle-class people get nearly free insurance meant for the poor, a twist government number crunchers say they discovered only after the complex bill was signed.

The change would affect early retirees: A married couple could have an annual income of about $64,000 and still get Medicaid, said officials who make long-range cost estimates for the Health and Human Services department.
Pass the bill then find out what's in it. That's great for transparency.

I'm not particularly surprised by this. Between the unnecessarily rushed way this was put together and the fact that a majority of the "expanded coverage" comes from dumping more money and people in Medicaid we should expect that there are going to be a lot of these predictably "unintended" consequences.

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Speaking of transparency, even the Washington Post says Obama lied about the auto bailouts:
Washington Post | Glenn Kessler | President Obama’s phony accounting on the auto industry bailout

We take no view on whether the administration’s efforts on behalf of the automobile industry were a good or bad thing; that’s a matter for the editorial pages and eventually the historians. But we are interested in the facts the president cited to make his case.

What we found is one of the most misleading collections of assertions we have seen in a short presidential speech. Virtually every claim by the president regarding the auto industry needs an asterisk, just like the fine print in that too-good-to-be-true car loan.
When the Post admits you're dishing out "chicanery" and "sleight of hand" you've got a problem.

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Hell, when on of your own advisors thinks you're dropping the ball on transparency and executive power then there's trouble:
NYTimes | Geoffrey R Stone | Our Untransparent President

AS a longtime supporter and colleague of Barack Obama at the University of Chicago, as well as an informal adviser to his 2008 campaign, I had high hopes that he would restore the balance between government secrecy and government transparency that had been lost under George W. Bush, and that he would follow through on his promise, as a candidate, to promote openness and public accountability in government policy making.

It has not quite worked out that way. While Mr. Obama has taken certain steps, notably early in his administration, to scale back some of the Bush-era excesses, in other respects he has shown a disappointing willingness to continue in his predecessor’s footsteps. [...]

The record of the Obama administration on this fundamental issue of American democracy has surely fallen short of expectations. This is a lesson in “trust us.” Those in power are always certain that they themselves will act reasonably, and they resist limits on their own discretion. The problem is, “trust us” is no way to run a self-governing society.

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Here's some more change:
Coyote Blog | Warren Meyer | Banality of Evil

I am afraid we are on a path to thoroughly eviscerating the Fourth Amendment simply because police forces find it too big of a hassle to comply. Just look at almost every case of abuses of search and seizure rules or of missing search warrants and you almost never see a time-based urgency that is often used as an excuse to end-around the rules. What you almost always see is just, well, laziness.

Here is yet another example (bold added):
Now comes the news that the FBI intends to grant to its 14,000 agents expansive additional powers that include relaxing restrictions on a low-level category of investigations termed “assessments.” This allows FBI agents to investigate individuals using highly intrusive monitoring techniques, including infiltrating suspect organizations with confidential informants and photographing and tailing suspect individuals, without having any factual basis for suspecting them of wrongdoing. (Incredibly, during the four-month period running from December 2008 to March 2009, the FBI initiated close to 12,000 assessments of individuals and organizations, and that was before the rules were further relaxed.)

This latest relaxing of the rules, justified as a way to cut down on cumbersome record-keeping, will allow the FBI significant new powers to search law enforcement and private databases, go through household trash, and deploy surveillance teams, with even fewer checks against abuse. The point, of course, is that if agents aren’t required to maintain a paper trail documenting their activities, there can be no way to hold the government accountable for subsequent abuses.
Speaking of which, the FBI stole one of Instapaper's leased servers because it was on the same rack as one they had a warrant for. They couldn't be bothered to figure out which one they were actually granted the power to seize, so they just took a couple dozen. Banditry.

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But fibbing about bailing out your buddies and letting your constabulary steal servers with private information are small change. The biggest "change" is launching a couple more wars. The direction of the vector is the opposite we were promised, but the magnitude of change is pretty big! That's bound to count for something.
Crisis Magazine | Steve Chapman | Obama and the pursuit of endless war

When historians sit down decades from now to address the events of the early 21st century, they will have no trouble explaining why Americans elected Barack Obama president. They elected him out of a firm conviction that the United States was not involved in enough wars.

Problem solved. Today, American forces are fighting in four different countries.
Oh, and this drawdown of troops in Afghanistan Obama just announced? Don't get too excited. There will still be more men deployed there than there were when he took office. More men, but he gets to call it a reduction anyway.

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