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Obama’s “Remainees”

Will not one but two Guantanamos define the American future?

By Karen J. Greenberg | April 19, 2010

On his first day in office, President Barack Obama promised that he would close the Bush-era prison at Guantanamo Bay, Cuba, “as soon as practicable” and “no later than one year from the date of this order.” The announcement was met with relief, even joy, by those, like me, who had opposed the very existence of Guantanamo on the grounds that it represented a legal black hole where the distinction between guilt and innocence had been obliterated, respect for the rule of law was mocked, and the rights of prisoners were dismissed out of hand. We should have known better.

By now, it’s painfully obvious that the rejoicing, like the president’s can-do optimism, was wildly premature. To the dismay of many, that year milestone passed, barely noticed, months ago. As yet there is no sign that the notorious 8-year-old detention facility is close to a shut down. Worse yet, there is evidence that, when it finally is closed, it will be replaced by two Guantanamos – one in Illinois and the other in Afghanistan. With that, this president will have committed himself in a new way to the previous president’s “long war” and the illegal principles on which it floundered, especially the idea of “preventive detention.”

Guantanamo in Illinois

For those who have been following events at Guantanamo for years, perhaps this should have come as no surprise. We knew just how difficult it would be to walk the system backward toward extinction, as did many of the former lawyer-critics of Guantanamo who joined the Obama administration. The fact is: once a distorted system has been set in stone, the only way to correct it is to end the distortion that started it: indefinite detention.

As of today, here’s the Guantanamo situation and its obdurate math. One hundred eighty-three detainees remain incarcerated there. Perhaps we should call them “remainees.” According to the estimates of the Guantanamo Detainee Review Task Force set up by Attorney General Eric Holder, about half of them will be released sooner or later and returned to their homelands or handed over to other “host” countries. They will then join approximately 600 former Guantanamo inmates released from custody since 2002. Another 35 or so remainees will be put on trial, according to reports on the task force’s recommendations and, assumedly, convicted in either civilian courts or by military commissions. For the remaining 50 or so – those for whom evidence convincing enough for trial and conviction is absent, but who are nonetheless deemed by the president to constitute a threat to the nation – the legal future is dim, even if the threat assessment which keeps them behind bars has nothing to do with normal American legalities.

Some of these long-term remainees may, in fact, have been jihadists at the time they were rounded up. Given the years of incarceration and the conditions they experienced, many more of the remainees may have been radicalized in Guantanamo itself, and might now seek to harm the U.S. or its citizens. In addition, half of them originally came from Yemen, a country unstable enough that, on return, some might indeed be recruited by forces intent on doing the U.S. harm. Although, in defiance of the warnings of its right-wing critics, the Obama administration did return six remainees to Yemen at the end of 2009, the Christmas Day bombing attempt by Umar Farouk Abdulmutallab only ratcheted up concerns about possible radicalization and training there. There have been no further transfers to Yemen since then.

So what is an administration that has made a firm promise and encountered an obstacle-laden, politically charged reality to do? If you take seriously the plans that this administration has been floating, the answer is simple: close down Guantanamo by putting in play two other Guantanamos (lacking the poisonous name) – one on American soil and one in Afghanistan, one future-oriented and sure to prove problematic, the other reeking of past disasters.

At some future date, the Obama administration has announced plans to move those Guantanamo detainees who are neither tried nor released to the still-to-be-refurbished Thomson Correctional Facility in Thomson, Illinois – “Gitmo North,” as it’s been dubbed by Senate Minority Leader Mitch McConnell (R-Ky.). Plans to relocate at least some detainees to a prison in the U.S. surfaced last summer. The idea has since encountered congressional resistance on the grounds of safety and security, heightened by outsized American fears that such prisoners have Lex Luthor-like powers and that al-Qaeda has the capability to attack any non-military prison holding them. The administration, however, is still pursuing the Thomson plan.

McConnell and other Republicans may be using the “Gitmo” label to stoke American fears of terrorism on our soil, but they are not wrong in another sense. A jail holding uncharged and untried remainees for the foreseeable future – or even a remainee who has been tried and acquitted – will indeed be “Gitmo,” whatever its official name and whatever happens to the prison in Cuba. In July 2009, in fact, the strikingly un-American idea of a presidentially imposed post-acquittal detention was first suggested by Jeh Johnson, the current general counsel for the Department of Defense, as one possible fate for a dangerous detainee whom a deluded jury (or a jury deprived of torture-induced confessions) might free. In this scenario, such a remainee, like those never brought to trial, would potentially remain under lock and key until the end of hostilities in the “long war,” itself imagined as at least a generational affair.

Guantanamo in Afghanistan

In other words, what’s being proposed is the moving of a (renamed) Guantanamo, body and soul, to the United States. That’s already a dismal prospect, but hardly the end of the line when it comes to post-Guantanamo thinking for this administration. In fact, a new idea has emerged recently. Last month, according to the Los Angeles Times, the White House hinted that the administration was contemplating using the already existing prison at Bagram Air Base in Afghanistan as yet another replacement for Guantanamo – apparently for housing future prisoners in what is no longer officially termed the Global War on Terror.

Were this to happen, it would be a squaring of the circle, a strange return to the origins of it all. Bagram was, notoriously enough, the place where, in 2001-2002, many of the prisoners who ended up at Guantanamo were first held (and often badly mistreated). Perhaps my mind has simply taken a cynical turn, but I can’t help wondering whether the administration might someday simply dump some of the Guantanamo remainees there as well. Then, we would be grimly back where George W. Bush’s Global War on Terror began. The “advantage” of Bagram, of course, is simple enough: prisoners on an American military base in distant Afghanistan might not be subject to the same levels of scrutiny or legal “meddling” (as the supporters of the Guantanamo process like to term it) as in Cuba or the United States – all those habeas challenges and challenges to military commissions that have, in eight years, convicted only three detainees (only one of whom still remains in custody), and all those human rights concerns.

There are indications that, in considering the reuse of Bagram as a parking lot for “the worst of the worst,” Obama administration officials remain remarkably blind to the history they are threatening to repeat. Evidently they don’t grasp the obvious parallels between Guantanamo and Bagram. Nevertheless, the language they are wielding has begun to sound eerily familiar. Last month, for instance, a senior Pentagon official was quoted saying that the idea of reinvigorating Bagram as a holding facility for such prisoners might not be the ideal solution, but was the “least bad” choice. How similar that sounds to the words former Secretary of Defense Donald Rumsfeld applied to Guantanamo Bay when he announced its opening in 2002. It was, he acknowledged almost apologetically, the “least worst place.”

If a two-prison solution were to go into effect, that would mean President Obama had fully accepted the Bush administration’s notion of a generational global battlefield against terror. After all, that’s what underlay Gitmo from the beginning, and that’s what would underlie a rejuvenated Bagram as well. In theory, there could be a workable solution lurking somewhere in all this murky planning, if it were undergirded with actual legal definitions; if, in the case of Thomson, the Illinois facility-to-be, the prisoners placed there were first charged, tried, and convicted; and if, in the case of Bagram, anyone placed there was declared a prisoner of war, or given some legally recognized status according to the laws of war or the Geneva Conventions. But as of now, it looks like both facilities will instead offer an endorsement of so-called preventive detention.

The administration’s disingenuousness on this point is overwhelming. On the one hand, we are told that the terms “war on terror” and “enemy combatants” are history and that Guantanamo will soon join them. But Guantanamo was never purely a place in Cuba. What made it so wrong was the system of indefinite detention that lay at its core and that continues to defy the rule of law as defined by the U.S. Constitution, U.S. military law, and the international conventions that this country has signed onto.

Closing Guantanamo does not simply mean emptying the prison cells at that naval base and throwing away the keys. It means ending the policy that has become synonymous with Guantanamo – of incarcerating individuals without the need to prove their guilt, and without a clear and recognizable process for determining the grounds for their detention.

Faced with opposition in Congress and in public sentiment generally, the Obama administration increasingly seems focused on ending not the conceptual nightmare we call Guantanamo, but the irritating problem that Guantanamo represents. Unfortunately, as this administration will learn to its regret, there is no closing Guantanamo if preventive detention continues.

In reality, a two-Guantanamo policy is likely to prove an unwieldy disaster and will hardly lead the country out of the quagmire of incarceration that the Bush administration mired us in. In the end, that quagmire is not legal (though the legal issues it raises are fundamental), nor political (though it may look that way from Capitol Hill); it’s psychological. And there is only one way to escape from it: end once and for all the notion of preventive detention by placing firm and unbending confidence in our military, our intelligence agencies, and our system of justice to identify enemies, prosecute those whom they can, and abide by the laws of war for prisoners of war.

Perhaps it’s also time for us to accept life in a world of imperfect security. It may sound harsh, but it’s not nearly as soul-defeating as the idea that not one, but two Guantanamos, will define the American future.

Karen J. Greenberg, the executive director of the Center on Law and Security at the NYU School of Law, is the author of The Least Worst Place: Guantanamo’s First 100 Days, among other works.

April 19, 2010 Posted by | Civil Liberties, Progressive Hypocrite | Leave a comment

What happened to “look forward, not backward”?

By Glenn Greenwald | April 16, 2010

The Obama Justice Department today announced that it has secured a ten-felony-count indictment against Thomas Drake, an official with the National Security Agency during the Bush years.  Drake’s indictment, of course, has nothing to do with the criminal surveillance undertaken by the NSA.  Rather, the DOJ alleges “that between approximately February 2006 and November 2007, a newspaper reporter published a series of articles about the NSA,” and it claims “Drake served as a source for many of those articles, including articles that contained classified information.”  In other words, he’s being subjected to what The New York Times’ Scott Shane calls a “highly unusual” prosecution for being a whistle-blower on the Bush era’s sprawling and secretive Surveillance State.  Although the indictment does not specify Drake’s leaks, it is highly likely (as Shane also suggests) that it is based on Drake’s bringing to the public’s attention major failures and cost over-runs with the NSA’s spying programs via leaks to The Baltimore Sun.*

Let’s spend just a moment thinking about what this means.  We’ve known since December, 2005, that Bush officials, including at the NSA, committed felonies by eavesdropping on Americans without the warrants required by law — crimes punishable by a five-year prison term and$10,000 fine for each offense.  All three federal judges to rule on the question have found those actions to be in violation of the law.  Yet there have been no criminal investigations, let alone indictments, for those crimes, and there won’t be any, due to Barack Obama’s dictate that we “Look Forward, Not Backward.”  Thus, the high-level political officials who committed crimes while running the NSA will be completely immunized for their serious crimes.

By stark contrast, an NSA official who brought to the public’s attention towering failures and waste at the NSA — revelations that led to exposés that, as Shane put it, were “honored with a top prize from the Society for Professional Journalists” — is now being prosecuted for crimes that could lead to a lengthy prison term.  Why doesn’t Obama’s dictate that we “Look Forward, Not Backward,” protect this NSA whistle-blower from prosecution at least as much as the high-level Bush officials who criminally spied on American citizens?  Isn’t the DOJ’s prosecution of Drake the classic case of “Looking Backward,” by digging into Bush-era crimes, controversies and disclosures?

Interestingly, the Bush DOJ long threatened to prosecute not only NSA whistle-blowers but also The New York Times for revealing its illegal spying.  It never did so, however, likely because, as Shane speculates, prosecutions for those leaks would cause light to be shined on what the NSA actually did when eavesdropping on Americans.  Yet here is the Obama DOJ prosecuting a whistleblower, a prosecution that is certain to intimidate and deter other whistle-blowers, thus choking off one of the very few avenues which Americans have left for learning about what this sprawling, obsessively secret Surveillance State does.  As Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Presss, told the NYT today:  “The whole point of the prosecution is to have a chilling effect on reporters and sources, and it will.”

For that reason, the DOJ’s aggressive prosecution of someone who exposed serious waste and mismanagement at the NSA could, as the NYT‘s Shane put it, “raise questions about whether the government is merely moving to protect itself from public scrutiny.”  Whatever else is true, decreeing that we must “Look Forward, not Backward” — and then bestowing that Imperial Generosity only to the crimes of the President and his aides but not to courageous whistle-blowers (or, for that matter, anyone else) — is anything but “Justice.”

* The Atlantic‘s Marc Ambinder summarizes The Baltimore Sun revelations which are almost certainly what Drake is accused of leaking:

In 2006 and 2007, Siobahn Gorman, a highly regarded intelligence reporter for the Baltimore Sun, wrote a series of articles about how the National Security Agency was (mis)managing a highly sensitive, very expensive collection program known as Trailblazer. Relying on interviews with current and former senior intelligence officials as well as internal documents, Gorman was able to show that the NSA’s “state-of-the art tool for sifting through an ocean of modern-day digital communications” was a boondoggle of sorts — and that the agency had removed several of the privacy safeguards that were put in place to protect domestic conversations and e-mails from being stored and monitored.

April 16, 2010 Posted by | Civil Liberties, Full Spectrum Dominance, Progressive Hypocrite | Leave a comment

Nuclear Insanities

By Julien Mercille | April 16, 2010

Writing in the 19th century, Russian anarchist Michael Bakunin said that the State is “the most flagrant, the most cynical, and the most complete negation of humanity… this explains why kings and ministers, past and present, of all times and all countries — statesmen, diplomats, bureaucrats and warriors — if judged from the standpoint of simply morality and human justice, have a hundred, a thousand times over earned their sentence to hard labor or to the gallows.”

The nuclear arsenals built by the United States and Russia and their feeble attempts at dismantling them prove Bakunin right again. Washington and Moscow’s combined stockpiles contain over 10,000 nuclear warheads, each 5 to 25 times more powerful than the bomb that flattened Hiroshima. The just signed New START Treaty will probably result in total cuts of about 800 warheads: in other words, our magnanimous leaders have agreed to reduce the nuclear power they hold in their hands, and over our heads, from one 150,000 to 140,000 times greater than the bomb dropped on Hiroshima… Thank you so much, Mr Obama.

As if this wasn’t enough, the just released US Nuclear Posture Review (NPR) tells us how those weapons might actually be used. The NPR’s key sentence is the following: “the United States will not use or threaten to use nuclear weapons against non-nuclear weapons states that are party to the NPT and in compliance with their nuclear non-proliferation obligations.”

Supporters of the NPR call it an improvement over Bush’s because it states that the United States won’t respond to a chemical or biological attack with nuclear weapons, but rather, with a “devastating conventional military response”.

However, nuclear weapons still play an important role under Obama. First, they can be used against other states that do possess them (like China and Russia) if they attack the US with conventional, biological or chemical weapons, i.e., even if they don’t attack with nuclear weapons. Second, nukes could be used against “non-state actors” like Al Qaeda, as Robert Gates explained: “all options are on the table when it comes to… non-state actors who might acquire nuclear weapons”. This implies that the country in which those terrorists are located will face nuclear retaliation no matter its standing under the NPT.

Third, countries that Washington determines not to be in compliance with the NPT are subject to nuclear attack even if they don’t possess any nuclear weapons. The reference here is to Iran and North Korea, but since Washington makes that determination not based on facts but on whether a country is “with us or against us”, in practice it means that those the United States deems to be enemies are at risk.

Sadly, Obama is not ready to adopt a “no first use policy” and is content with a situation in which he could be the first to order a nuclear strike. He also leaves about 200 nuclear weapons in five European countries (Germany, Italy, Belgium, the Netherlands and Turkey). In short, as the Federation of American Scientists’ Hans Kristensen concludes his review of the NPR, the document is a “disappointment” for those who were hoping for clear and significant reductions in the role and numbers of nuclear weapons.

The New START Treaty, on its part, calls for two kinds of reductions: nuclear warheads and delivery vehicles.

Warheads are the part of a missile or bomb that contains the nuclear explosive charge, and currently, the US has about 2,200 strategic warheads and Russia 2,600. Under New START, both must reduce their arsenals to 1,550 deployed warheads by 2017. Media reports have emphasized that the treaty will “slash nuclear stockpiles” by about 30% compared to the Moscow Treaty signed by Bush in 2002 that imposed a limit of 2,200 warheads.

The problem with this 30% figure is that it is wrong: the real warhead reductions will be less than that, in fact, probably about 10-15%. This is because of a special counting rule in the treaty by which all warheads associated with one bomber aircraft are counted as one. For example, if an American bomber carries 20 nuclear bombs, that counts as only one warhead, not 20. Therefore, it’s easy to see that the 1,550 limit will in fact “hide” many more actual warheads. How many exactly will depend on how the US and Russia allocate their cuts among submarines, land-based missiles and bombers, but estimates are that when they reach the limit of “1,550” in 2017, the US will in fact possess about 1,800 warheads and Russia slightly less than 2,200 — reductions of about 13% compared to current arsenals, not 30%.

In short, the treaty gives no incentive to get rid of nuclear bombs launched by bomber aircrafts and as such underestimates the real number of warheads deployed by both powers. Further, the treaty does not require that any warhead be destroyed: they are merely to be moved into storage, and could be brought back into operation eventually. And there is no requirement to remove the 200 US tactical nuclear weapons located in Europe.

Delivery vehicles are what brings the warheads to explode on the adversary’s territory in war and are of three kinds: bomber aircrafts, ICBMs (Intercontinental Ballistic Missiles, land-based) and SLBMs (ballistic missiles launched by submarines). The treaty imposes a limit of 700 deployed delivery vehicles for each side. But here again, reductions are small: Russia currently has about 600, so it literally has nothing to do since it is already in compliance. The US has 798 and will have to reduce this by 12%, to 700.

The New START Treaty is only a slow move towards disarmament. A top nuclear expert based in the United States summed it all up when he told this author that “as most arms control treaties, New START just codifies the changes that were going to happen anyway.”

Nevertheless, it is important to appreciate the treaty’s positive aspects. For one, it establishes a structure of verification and confidence building between the United States and Russia that will allow for future deeper reductions, and it encourages the two countries’ leaders not to renege on planned cuts in their arsenals.

A question raised both by the NPR and New START is whether or not the Obama administration will build new nuclear weapons. During his election campaign, Obama had promised not to do so. Yet, his 2011 Budget request released last February calls for a 10% increase in nuclear weapons spending next year. Has he reneged on his promises?

The answer depends on how we define the term “new nuclear weapon”. When nuclear warheads age, instead of dismantling them, their life is often extended through various modifications ranging from rebuilding some or all the parts but keeping the original warhead design, to manufacturing new untested nuclear components of new design to replace existing ones. Which ones of those changes should be referred to as yielding a “new” warhead is debatable. The NPR states that “The United States will not develop new nuclear warheads” but that it will extend the lives of aging warheads using the “full range” of available methods. Some analysts have concluded that this in practice means new warheads, and would even permit production of Bush’s Reliable Replacement Warhead (RRW) program.

But there is another way in which Obama can be said to produce new nuclear weapons: he is building new delivery vehicles for warheads, such as the F-35 Joint Strike Fighter, a replacement for the Ohio-class nuclear-armed submarine, and modernizing existing strategic ballistic missiles such as the land-based Minuteman III and submarine-based Trident II, in addition to plans to replace the nuclear-capable Air Launched Cruise Missile (ALCM). Can’t those be considered new nuclear weapons since they are new vehicles to deliver warheads?

The bottom line is this: we can argue on what constitutes a new nuclear weapon and whether or not Obama is developing them. What is certain however, is that a president truly committed to nuclear disarmament would not even extend the life of aging nuclear warheads and would destroy them before they reach the end of their shelf life. Obama is clearly not that kind of president.

It is sometimes believed that nuclear weapons contribute to maintaining a balance between super-powers, making the international system more stable. In fact, there have been many nuclear near-accidents throughout the Cold War and since then, due to systems’ malfunctioning or human errors. Maintaining nuclear arsenals in place only increases the chance that a real accident will one day happen.

For instance, during the Cuban missile crisis in 1962, the world came very close to global nuclear war, averted thanks to a Soviet submarine commander, Vasili Arkhipov, who countermanded an order to fire a nuclear-tipped torpedo at US warships off Cuba. US destroyers whose orders were to enforce a naval quarantine did not know that the Soviet submarines sent to protect their ships were carrying nuclear weapons and fired at the submarines to force them to the surface. The officers in Arkhipov’s submarine thought this meant World War III might have started, and the first captain said “We’re going to blast them now! We will die, but we will sink them all. We will not disgrace our navy”. But Arkhipov calmed him down and torpedoes were not launched: in the words of Thomas Blanton, director of the National Security Archive, “The lesson from this is that a guy called Vasili Arkhipov saved the world.”

In 1983, at a time of tension in US-Soviet relations, a newly-inaugurated Soviet early-warning system detected incoming American nuclear missiles. However, Stanislav Petrov, the Soviet officer then in charge of monitoring the system and notifying his superiors if an attack was detected, chose not to let them know for he believed the new system was simply malfunctioning. He was right: there were no incoming missiles. The Russian system had indicated otherwise due to a unique alignment of its satellite’s viewing angle with the sun, which caused sunlight to be reflected by the clouds in a way that caused the warning system to indicate that several missiles had been launched against the Soviet Union. Had Petrov chosen to alert his superiors, they could have launched a massive retaliatory strike, changing the course of history.

In 1995, Norwegian and American scientists launched a large rocket from an island off the coast of Norway to study the northern lights. Russian radars detected the rocket but mistook it for a nuclear Trident missile launched from a US submarine. For a few moments, Russia was poised to launch a full-scale nuclear attack on the United States. Reportedly, Russian military doctrine allowed 10 minutes from the time of detection to decide on a course of action. The next day, then President Yeltsin stated that he had in fact activated, for the first time, his “nuclear football”, a device allowing him to communicate with his top military advisers to review the situation.

If the world is not to wait for decades before such risks become history, the New START Treaty must be implemented, and agreements on further cuts need to be reached — fast.

Note

See also “New START Treaty Has New Counting”, 29 March 2010, http://www.fas.org/blog/ssp/2010/03/newstart.php

April 16, 2010 Posted by | Militarism, Progressive Hypocrite | Leave a comment

Afghans ‘abused at secret prison’ at Bagram airbase

By Hilary Andersson | BBC News | April 15, 2010

Bagram – Afghan prisoners are being abused in a “secret jail” at Bagram airbase, according to nine witnesses whose stories the BBC has documented. The abuses are all said to have taken place since US President Barack Obama was elected, promising to end torture.

The US military has denied the existence of a secret detention site and promised to look into allegations.

Bagram was the site of a controversial jail holding hundreds of inmates, who have now been moved to another complex.

The old prison was notorious for allegations of prisoner torture and abuse. But witnesses told the BBC in interviews or written testimony that abuses continue in a hidden facility.

Sleep deprivation

“They call it the Black Hole,” said Sher Agha who spent six days in the facility last autumn.

“When they released us they told us we should not tell our stories to outsiders because that will harm us.”

Sher Agha and others we interviewed complained their cells were very cold.

“When I wanted to sleep and started shivering with cold I started reciting the holy Koran,” he said. But sleep, according to the prisoners interviewed, is deliberately prevented in this detention site.

“I could not sleep, nobody could sleep because there was a machine that was making noise,” said Mirwais, who said he was held in the secret jail for 24 days.

“There was a small camera in my cell, and if you were sleeping they’d come in and disturb you,” he added.

The prisoners, who were interviewed separately, all told very similar stories. Most of them said they had been beaten by American soldiers at the point of arrest before being taken to the prison.

Mirwais had half a row of teeth missing, which he said was from being struck with the butt of a gun by an American soldier.

No-one said they were visited by the International Committee of the Red Cross during their detention at the site, and they all said that their families did not know where they were.

In the small concrete cells, the prisoners said, a light was on all the time. They said they could not tell if it was night or day and described this as very disturbing.

Mirwais said he was made to dance to music by American soldiers every time he wanted to use the toilet.

The ex-prisoners said they were imprisoned at the secret jail before being taken to the main detention centre at the Bagram airbase, a new complex called The Detention Facility in Parwan. Bagram’s prisoners were moved to the Parwan complex from the old notorious Bagram prison site on the airbase earlier this year… Full article

April 15, 2010 Posted by | Progressive Hypocrite, Subjugation - Torture, War Crimes | Leave a comment

The Obama DOJ’s warrantless demands for emails

By Glenn Greenwald | April 15, 2010

A very significant case involving core privacy protections is now being litigated, where the Obama Justice Department is seeking to obtain from Yahoo “all emails” sent and received by multiple Yahoo email accounts, despite the fact that DOJ has never sought, let alone obtained, a search warrant, and despite there being no notice of any kind to the email account holders:

In a brief filed Tuesday afternoon, the coalition says a search warrant signed by a judge is necessary before the FBI or other police agencies can read the contents of Yahoo Mail messages — a position that puts those companies directly at odds with the Obama administration.

As part of a case conducted largely under seal and thus hidden from public view, the DOJ demanded these emails from Yahoo without any effort to demonstrate probable cause to believe the email user was involved in the commission of any crime, but instead merely based on the vague claim that there is “reasonable grounds to believe” the emails “are relevant and material to an ongoing criminal investigation.”  If the DOJ position were accepted, Americans would have substantially less privacy protections in their email communications.

Federal law is crystal clear that a search warrant is required for the Government to obtain any emails that have been stored less than 180 days — one that requires a showing of probable cause and that the documents sought to be described with particularity.  In contrast to the nation’s largest telecoms’ eager cooperation with Bush’s illegal surveillance programs, Yahoo — to its credit — refused to turn over any such emails to the Government without a search warrant.  As a result, the DOJ is now seeking a federal court Order compelling the company to comply with its demands, and a coalition of privacy groups and technology companies — led by EFF and including Google — have now filed a brief supporting Yahoo’s position.  Both Yahoo and that coalition insist that federal law as well as the Fourth Amendment’s search and seizure protection bar the Obama DOJ from acquiring these emails without a search warrant.

The law in question — the Stored Communications Act, 18 U.S.C. sec. 2703 — could not be clearer:

A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant.

The DOJ’s blatantly twisted argument is that an email should be considered to be “in electronic storage” only for as long as it is unopened by the recipient; once it is opened, it is no longer “in electronic storage,” and no warrant is required for the Government to obtain and read it.  Based on this rationale, the DOJ argues in its Brief that “a previously opened subscriber email is not ‘in electronic storage’.”  In other words, claims the DOJ, the search warrant requirement protects your emails only to the extent you never read them, but as soon as you read them, the Government no longer needs a search warrant to obtain and read them; instead, it merely needs to claim to a court that the emails are somehow “relevant” to a criminal investigation, and then they must be turned over without any notice to you.

The DOJ insists upon this power notwithstanding a 2003 decision from the 9th Circuit Court of Appeals which explicitly rejected the claim that emails once read or downloaded are no longer “in electronic storage” under the Act.  Worse, a separate provision of the law — 18 U.S.C. sec. 2510(17) — explicitly defines “electronic storage” to include “any storage of such communication by an electronic communication service for purposes of backup protection of such communication”:  exactly what one does when one reads an email and leaves it on the server.  The Obama DOJ’s position is as radical as it is invasive; as Yahoo explained, it “is an attempt to reverse seven years of established precedent requiring law enforcement to follow carefully proscribed rules when seeking to obtain email content from providers like Yahoo.”

At least as important, Yahoo and the coalition of privacy groups and technology firms are arguing for the application of the seminal 1967 Fourth Amendment case of Katz v. U.S. to email communications.  In Katz, the Supreme Court held that the Fourth Amendment protects against government eavesdropping on telephone calls even though such calls are not technically “houses, papers [or] effects”; even though eavesdropping does not constitute a physical search of the individual’s property; and even though the telephone lines themselves are the property of the telephone company and not the individual.  That is because, explained the Katz Court, “the Fourth Amendment protects people, not places.”  Moreover, telephone calls had become such a common means of private communications by 1967 that there was a reasonable expectation of privacy as to their contents; thus, “to read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.”

That such reasoning extends at least as much to email communications is self-evident, as is the danger of allowing Government acquisition of emails without a search warrant.  According to a 2003 Pew survey, “102 million Americans were email users in December 2002” and “more than nine in ten online Americans have sent or read email.”  Those numbers were from 7 years ago and are obviously much higher now.  By itself, according to its Brief, Yahoo is used by 30 million people to send and receive email.

To allow the Government to access without search warrants the contents of one’s private email communications — as opposed to, say, merely information showing from whom one received or to whom one sent email — is as central a violation of the Fourth Amendment’s guarantee as can be imagined.  Of course, the FISA Amendments Act of 2008 — which passed with Obama’s support and was designed to legalize much of the Bush NSA surveillance program — already legalized warrantless surveillance of most emails sent internationally without any real court oversight, but the Obama DOJ’s position here would result in a far lower protections being applied to purely domestic emails (albeit with some minimal court involvement).

The Fourth Amendment threats are obvious.  As the Katz Court said:  “The Government’s activities in electronically listening to and recording the Petitioner’s words violated the privacy upon which he justifiably relied.”  And numerous courts, including the Sixth Circuit Court of Appeals in a 2007 decision, have explicitly invoked this reasoning to extend Katz‘s Fourth Amendment protections from telephone calls to email communications:

It goes without saying that like the telephone earlier in our history, email is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations in the past.

I don’t want to oversimplify the Fourth Amendment questions raised by this case.  There are exceptions to the Constitutional warrant requirement which the DOJ likely will argue applies here [such as the claim that an individual has no “reasonable expectation of privacy” when communications are turned over to a third party, as emails technically are when they’re in the possession of service providers such as Yahoo (though no more so than a letter is “turned over” to the U.S. Postal Service)].  Whatever else is true, there is simply no viable way to distinguish the telephone conversations which the Katz court protected under the Fourth Amendment and the emails which most Americans now use on a daily basis for their most private communications.

If nothing else, consider the implications of allowing the U.S. Government to obtain and read emails simply by a vague showing of “relevance” to a criminal investigation, all without (a) any demonstration of probable cause, (b) a warrant from a court, (c) any notice provided to you that they’re doing so, and (d) any Fourth Amendment protections.  As the brief filed by EFF, Google and others puts it, granting the Government such authority would have “extremely significant implications for the privacy of Americans’ communications.”  Yet that is exactly the power the Obama DOJ is claiming it possesses.

April 15, 2010 Posted by | Civil Liberties, Progressive Hypocrite | Leave a comment

US violates UN law by threatening Iran

Press TV – April 12, 2010

Iran’s envoy to the UN nuclear watchdog says the US nuclear policy which allows the use of nuclear arms against Tehran is a clear violation of the UN Charter.

Speaking on Monday, Ali-Asghar Soltanieh called on the UN Security Council (UNSC) to deal with the US violations.

The US Nuclear Posture Review (NPR) purportedly restricts the use of its nuclear arms against most non-atomic states, except Iran and North Korea, which are accused by the US of seeking nuclear weapons.

Soltanieh also said the outcome of the upcoming Nuclear Security Summit in Washington is not binding as only a limited number of countries have been invited.

Unlike North Korea, Iran is a signatory to the Nuclear Non-Proliferation Treaty (NPT). Tehran has stressed that its nuclear program is only for the civilian applications of the technology.

The UN nuclear watchdog has, in many reports, declared that there is no evidence of military objectives in Iran’s nuclear program.

“According to international laws, any threat to use nuclear weapons against other countries … is against the UN Charter, the [International Atomic Energy] Agency’s regulations and international laws,” ISNA quoted Soltanieh as saying.

“The UN Security Council should act swiftly and deal with the US violations in this regard.”

Later on Monday, US President Barack Obama was to open the nuclear security summit which is being attended by the leaders of 46 other countries. Iran is not represented at the conference.

“The outcome of the Washington conference is already known. Any decision taken at the meeting is not binding on those countries which are not represented at the conference,” Soltanieh said.

The Iranian envoy said the NPR proves Washington’s unreliability on the nuclear arms issue, adding that the new US policy shows that the nuclear-armed power is in fact a big threat to international peace.

April 12, 2010 Posted by | Militarism, Progressive Hypocrite | Leave a comment

The ‘Obama doctrine’: kill, don’t detain

Asim Qureshi | guardian.co.uk | 11 April 2010

In 2001, Charles Krauthammer first coined the phrase “Bush Doctrine”, which would later become associated most significantly with the legal anomaly known as pre-emptive strike. Understanding the doctrine with hindsight could lead to a further understanding of the legacy that the former administration left – the choice to place concerns of national security over even the most entrenched norms of due process and the rule of law. It is, indeed, this doctrine that united people across the world in their condemnation of Guantánamo Bay.

The ambitious desire to close Guantánamo hailed the coming of a new era, a feeling implicitly recognised by the Nobel peace prize that President Obama received. Unfortunately, what we witnessed was a false dawn. The lawyers for the Guantánamo detainees with whom I am in touch in the US speak of their dismay as they prepare for Obama to do the one thing they never expected – to send the detainees back to the military commissions – a decision that will lose Obama all support he once had within the human rights community.

Worse still, a completely new trend has emerged that, in many ways, is more dangerous than the trends under Bush. Extrajudicial killings and targeted assassinations will soon become the main point of contention that Obama’s administration will need to justify. Although Bush was known for his support for such policies, the extensive use of drones under Obama have taken the death count well beyond anything that has been seen before.

Harold Koh, the legal adviser to the US state department, explained the justifications behind unmanned aerial vehicles (UAVs) when addressing the American Society of International Law’s annual meeting on 25 March 2010:

“[I]t is the considered view of this administration … that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war … As recent events have shown, al-Qaida has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks … [T]his administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles …
“[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meeting. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.”

The legal justifications put forward by Koh are reminiscent of the arguments that were used by John Yoo and others in their bid to lend legitimacy to unlawful practices such as rendition, arbitrary detention and torture. The main cause for concern from Koh’s statements is the implication that protective jurisdiction to which the US feels it is entitled in order to carry out operations anywhere in the world still continues under Obama. The laws of war do not allow for the targeting of individuals outside of the conflict zone, and yet we now find that extrajudicial killings are taking place in countries as far apart as Yemen, the Horn of Africa and Pakistan. From a legal and moral perspective, the rationale provided by the State Department is bankrupt and only reinforces the stereotype that the US has very little concern for its own principles.

Despite the legalities of what is being conducted, the actuality of extrajudicial killings, especially through UAVs is frightening. The recent revelations by WikiLeaks on the killing of civilians by US Apache helicopters in Iraq has strongly highlighted the opportunities for misuse surrounding targeting from the air. In the Iraq case, there were soldiers who were supposed to be using the equipment to identify so-called combatants, and yet they still managed to catastrophically target the wrong people. This situation is made even worse in the case of UAVs, where the operators are far removed from the reality of the conflict and rely on digital images to see what is taking place on the ground.

Conservative estimates from thinktanks such as the New American Foundation claim that civilian causalities from drone attacks are around one in three, although this figure is disputed by the Pakistani authorities. According to Pakistani official statistics, every month an average of 58 civilians were killed during 2009. Of the 44 Predator drone attacks that year, only five targets were correctly identified; the result was over 700 civilian casualties.

Regardless of the figures used, the case that extrajudicial killings are justified is extremely weak, and the number of civilian casualties is far too high to justify their continued use.

A further twist to the Obama Doctrine is the breaking of a taboo that the Bush administration balked at – the concept of treating US citizens outside of the US constitutional process. During the Bush era, the treatment of detainees such as John Walker Lindh, Yasser Hamdi and Jose Padilla showed reluctance by officials to treat their own nationals in the way it had all those of other nationalities (by, for instance, sending them to Guantánamo Bay and other secret prisons). The policy of discrimination reserved for US citizens showed that there was a line the US was not willing to cross.

At least, today, we can strike discrimination off the list of grievances against the current president. The National Security Council of the US has now given specific permission to the CIA to target certain US citizens as part of counter-terrorism operations. Specifically, Anwar al-Awlaki has been singled out for such treatment, as it has been claimed that he was directly involved in the planning of the Major Hasan Nidal killings and the Christmas Day bomber attacks. Indeed, it is claims such as this that bring the entire concept of targeted assassinations into question. The US would like us to believe that we should simply trust that they have the relevant evidence and information to justify such a killing, without bringing the individual to account before a court.

The assumption that trust should be extended to a government that has involved itself in innumerable unlawful and unconscionable practices since the start of the war on terror is too much to ask. Whatever goodwill the US government had after 9/11 was destroyed by the way in which it prosecuted its wars. Further, the hope that came with the election of Barack Obama has faded as his policies have indicated nothing more than a reconfiguration of the basic tenet of the Bush Doctrine – that the US’s national security interests supersede any consideration of due process or the rule of law. The only difference – witness the rising civilian body count from drone attacks – being that Obama’s doctrine is even more deadly.

April 12, 2010 Posted by | Progressive Hypocrite, War Crimes | Leave a comment

Obama imposed ‘peace plan’ would deny basic Palestinian rights

By Alex Kane on April 10, 2010

Reports in the New York Times and Washington Post that the Obama administration is considering presenting its plan for resolving the Israeli-Palestinian conflict have created a lot of buzz and pushback from supporters of Israel.

However, the reports do not address the fundamental question: what would the plan mean for Palestinians and Israelis? In a sentence, it would mean the continuation of a pattern where the Palestinian leadership agrees to major concessions to secure an agreement with Israel, an agreement that would have little basis in international law

The basic outline being talked about is based on the so-called “Clinton Parameters” that were presented after the breakdown of the Camp David talks.

Here’s Marwan Bishara, Al Jazeera English’s senior political analyst, on what the “Clinton Parameters” mean:

After US president Bill Clinton failed in 2000 to get Ehud Barak, the Israeli premier and Yasser Arafat, the PLO chairman, to sign a comprehensive agreement at the Camp David summit, he made clear where he stood.

Sharing of Jerusalem; no right of return for the Palestinians; a return to the 1967 borders with mutual adjustments to allow Israel to annex big settlement blocks; and a demilitarised Palestinian state.

That’s how Zbigniew Brzezinski, the former national security advisor, conveyed them to the Washington Post’s David Ignatius before his meeting with Obama, along with other former national security advisors.

Bishara rightly points out that the terms presented above wouldn’t be “fair or just,” because they would relinquish the “right of return” for Palestinians displaced by the 1948 Nakba, a right “enshrined in international law and international humanitarian law, and isn’t for Obama to deny, nor even for Mahmoud Abbas, the PLO chairman, to give away.”

And a demilitarized Palestinian state? With Israel keeping a presence “in fixed locations in the Jordan Valley under the authority of the International force for another 36 months” and having Israeli “early warning stations” inside the West Bank (as the “Clinton Parameters” state)? That doesn’t sound like an end to the occupation.

Also not considered is the fact that, as Dr. As’ad Ghanem, writing in Haaretz, says, the current Palestinian Authority, with Prime Minister Salam Fayyad at the helm, “is seen by the Palestinians as an American puppet. His government is not legitimate, even according to the Palestinian constitution.” A Palestinian government with no legitimacy agreeing to an American-imposed peace plan won’t do any good, especially with a Prime Minister who has been sharply criticized for apparently giving up the right of return to areas within Israel.

April 11, 2010 Posted by | Ethnic Cleansing, Racism, Zionism, Progressive Hypocrite | Leave a comment

US-Russia Disarmament Treaty on Shaky Ground

Lack of Missile Defense Consensus Means Deal Could Fall Apart at Any Moment

By Jason Ditz | April 08, 2010

Much has been made of the signing of the new nuclear disarmament treaty signed by Presidents Obama and Medvedev, an ambitious plan to reduce the number of nuclear warheads in the US and Russian arsenals. But the treaty seems to be on an extremely shaky foundation, and the prospect that it will survive over the long term seems uncertain at best.

Russia today reiterated their concerns over the US missile defense shield, and warned again that it could “derail” the treaty. Russian Foreign Minister Sergey Lavrov insisted that they could “opt-out” of the treaty at any time if they become too uncomfortable with the US installing of defensive missiles along their border.

The final draft of the treaty contains no mention of missile defense at all, something which the Obama Administration has spun as a major victory but which may in reality be a major hole in the treaty, a lack of comprehensiveness that could make it short-lived.

Keeping the missile defense unmentioned is particularly important as the Obama Administration struggles to win ratification of the treaty in the Senate, which will require a two-thirds majority and is already seeing some vocal opposition.

Russia and the US have been clashing over America’s missile defense plans for several years now, and the finalization of the treaty, which was supposed to come last year, was delayed for many months by the inability to reach a consensus. Finally the matter was just “dropped” so a pact could be reached.

So the treaty is signed now, but the major stumbling block is still there. Barring a future understanding on the issue, something neither side appears to be working particularly hard on, missile defense will remain an issue that must inevitably render the treaty untenable.

April 9, 2010 Posted by | Militarism, Progressive Hypocrite | Leave a comment

How Brainy Is Obama?

By Alan Bock | April 09, 2010

Most of the other hypotheses don’t seem to make much sense, so I’m starting to approach the tentative conclusion that Barack Obama is just not that smart. It should hardly come as a surprise. He undoubtedly has an IQ slightly higher than normal or he wouldn’t have made it through college and law school (though it might be interesting to see his transcripts, which to my knowledge he hasn’t released yet). But in retrospect what he seems to have displayed throughout his career is cunning rather than anything resembling real learning.

This would hardly be unique among American presidents, and in fact there are some who argue that high intellect and/or book-learnin’ are not only seldom to be seen in the presidency but perhaps not especially desirable. President Clinton was obviously an engaged policy wonk with what one suspects is a pretty high IQ and a degree of intellectual curiosity. George W. Bush was not quite the dunce some made him out to be, but one would be hard pressed to find evidence of intellectual curiosity, a philosophy of governance formed by much deep thinking, a willingness to dig into policy details, or a capacity to learn much from either study or experience.

Barack Obama has obviously been extremely ambitious for a long time; perhaps he has had the presidency in mind since early college days. So he has been alert to the main chance, aware of the kinds of alliances he ought to make, aware that a sensitive autobiography would make him look special in the eyes of the easily duped intellectuals of our fading empire, aware of how to present himself as a multicultural black man. But his reputation for being really smart is belied by so many of his actions.

What has me going this time is not health care, though there’s plenty of evidence there, but Afghanistan. His recent visit there cemented this war as “his” war. But the war makes so little sense that you would think almost any reasonably intelligent person – I suspect he didn’t take any international relations classes in college, and he certainly has not shown any special interest in that field heretofore, so maybe that’s a mitigating factor – would have been able to figure it out.

The official line about keeping al-Qaeda out of Afghanistan is obviously absurd; al-Qaeda hasn’t been there since 2002. He has to know – doesn’t he? – that the Taliban is an indigenous Afghan outfit without international ambitions, so while a takeover would be sad for many Afghans, it would have few if any international repercussions. He is obviously aware enough that Karzai is a corrupt tool, and uncooperative to boot, that it annoys him. So why does he insist on maintaining a U.S. presence in the Graveyard of Empires?

What are the possibilities? Does he really want to preside over the fall of the American Empire? Is he so deluded as to think we can bring a semblance of democracy, stability, or semi-decent governance in the next 15 months or so? Is he just cunning enough to realize that historians tend to rank American presidents who have presided over wars as “greater” than those who presided over peaceful periods?

I’m coming to think that maybe he’s just not that smart… Full article

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Link for more in depth coverage of Obama’s academic background

April 9, 2010 Posted by | Illegal Occupation, Militarism, Progressive Hypocrite | Leave a comment

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