Will the Lies and Deceit Ever Cease?

by lizard

The Obama administration is engaged in a systematic dismantling of our constitutional rights. It’s happening on so many fronts, it’s difficult to keep up.

The NSA scandal is huge, and keeps growing. Every time Obama tries to do or say something, he just more firmly establishes his craven role in repeatedly misleading the American people.

But I have to give it to our president, appointing James Clapper as part of the NSA review is galling beyond words. Instead of getting arrested for lying to Congress, this fucker will get to review the programs he lied about.

Here is what Obama said just a week ago about this “review” process:

[W]e’re forming a high-level group of outside experts to review our entire intelligence and communications technologies. We need new thinking for a new era. We now have to unravel terrorist plots by finding a needle in the haystack of global telecommunications. And meanwhile, technology has given governments — including our own — unprecedented capability to monitor communications.

So I am tasking this independent group to step back and review our capabilities — particularly our surveillance technologies. And they’ll consider how we can maintain the trust of the people, how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used, ask how surveillance impacts our foreign policy — particularly in an age when more and more information is becoming public. And they will provide an interim report in 60 days and a final report by the end of this year, so that we can move forward with a better understanding of how these programs impact our security, our privacy, and our foreign policy.

Maintain the trust of the people, Mr. President? Have you switched from weed to meth?

But this post isn’t about the NSA scandal, or the onion-esque insanity of appointing an unindicted criminal to review the criminality of the NSA.

It’s about Hedges vs. Obama, and why a July ruling has given the Obama administration another victory in its relentless assault on the constituion.

Here is the lead in to Lawrence Davidson’s article:

Back in January of 2012 former war correspondent Christ Hedges and others, including Noam Chomsky and Daniel Ellsberg, filed a lawsuit in federal court challenging the constitutionality of the 2012 National Defense Authorization Act (NDAA) and specifically the Act’s Section 1021(b)(2), which allows for indefinite detention by the U.S. military of people “who are part of or substantially support Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States.” This detention denies those held of the ability to “contest the allegations against them because they have no right to be notified of the specific charges against them.” In this suit filed by Hedges et al., the issue in question was the vagueness of the terms “substantially support” and “associated forces.” For instance, could this vagueness lead to apprehension and detention of journalists who publish interviews with members of Al Qaeda or the Taliban? Could it lead to the same treatment against political activists protesting U.S. policies against these or “associated” groups?

The case, now designated Hedges v. Obama, was initially heard in New York District Court by Judge Katherine Forrest. The plaintiffs claimed that the NDAA violated the 1st (free speech), 5th (due process as well as the stipulation that people must be able to understand what actions break the law) and 14th (equal protection) Amendments to the Constitution. To address the question Judge Forrest asked the government lawyers if they could assure the court that the activities of the plaintiffs would not result in indefinite detention under the act. If they could give such assurances it would, as far as the judge was concerned, eliminate the plaintiff’s “standing” to challenge the law.

The government lawyers refused to give those assurances, and as a result, the judge concluded, “The definitions of ‘substantially supported’ and ‘associated forces’ were so vague that a reporter or activist could not be sure they would not be covered under the provision.” This, in turn, would result in what the plaintiffs considered a “chilling effect on free speech and freedom of the press.” Therefore, in September 2012, the Judge granted a permanent injunction against the practice of indefinite detention as put forth in NDAA.

Until July, this permanent injunction was in place. But then those lovely government lawyers said, no, trust us, we wouldn’t go after journalists, and poof, the injunction went away:

There is no evidence that the U.S. government ever complied with this injunction, and its lawyers immediately appealed the ruling to the U.S. Second Circuit Court of Appeals. When the case was heard in this court, the U.S. Justice Department suddenly came up with the assurances it refused to give only weeks before. In part it was because of these assurances that the appeals court decided to overturn Forrest’s ruling and grant a permanent stay of her injunction. In one of its interim rulings, the appeals court observed, “Since the U.S. government has promised that citizens, journalists, and activists were not in danger of being detained as a result of NDAA, it was unnecessary to block the enforcement of 102 (b)(2) of the NDAA.” However, as Carl Mayer, the lawyer for Christopher Hedges, had noted earlier, “The government has not put in any evidence. They just keep making these broad assurances. It’s all a ‘trust us’ proceeding.” And trust them is exactly what the appellate judges did. The appeals court’s final ruling in favor of the government was given on 17 July 2013.

The article goes on to provide a very specific, tangible example of why the government is absolutely NOT trustworthy, citing another precedent set in Holder vs Humanitarian Law Project:

Despite the naive faith of the Second Circuit judges in the verbal assurances of government lawyers that the NDAA will be enforced in a constitutional manner, there is evidence that such assurances cannot be trusted. Government personnel seem not to have enough objectivity and simple common sense for trust to be placed in them. For example, consider the 2010 case of Holder v. Humanitarian Law Project.

This case was argued before the Supreme Court in January 2010 and challenged that part of the USA Patriot Act, which prohibits “material support” to groups designated terrorist organizations by the U.S. government. Just as “substantially support” and “associated forces” are too vague for Hedges and his fellow plaintiffs, so was “material support” too vague for the Humanitarian Law Project. The HLP was seeking to interact with alleged terrorist groups such as the Kurdistan Workers Party of Turkey so as to “help the group enter into peace negotiations and United Nations processes.” In other words, the HLP wanted to help lead such organizations away from violence and toward nonviolent strategies. Could this be construed as giving “material support” to terrorists? The Obama Justice Department, in striking disregard of common sense, argued that it was indeed material support and thus a criminal venture. And, as it turned out, in its June 2010 decision, the Supreme Court agreed.

This was not just an intellectual exercise in front of the highest court of the land. The resulting Supreme Court decision quickly assumed real life significance. Within three months of its decision, the FBI was raiding homes in Chicago and Minneapolis, confiscating computers and files, because they suspected some undefined connection between the residents and various alleged Colombian and Palestinian terrorist groups. The FBI cited Holder v. Humanitarian Law Project as legal justification for their actions.

Maybe it would be helpful, as a reminder, to include the 35 words presidents say, under oath, before taking on the duties of the highest elected office in the grand US of A:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

Are those words meaningless? At this point I’d say they’re about as meaningful as the Nobel peace prize.

  1. Dave Budge

    I have a hard time understanding your surprise, Liz. Since his first months in office the president has shown an almost contemptuous disregard for the law. He screwed the shit out of individual bondholders – most of them retirees – in the GM bankruptcy, he ignored the duty of Congress in the declaration of war, he has deemed himself an imperial president with kill list that ignore due process, he unilaterally decided not to enforce both DOMA and immigration laws (which I support on principle but not as an executive prerogative), he has used intimidation to silence his critics. I’ve said for years that he’s more corrupt than Nixon but have as smart.

    And now we have a Congress that has completely abdicated it’s responsibilities for the fear of being called racist. We have a Federal Reserve who has turned saving institutional bond holders from a secondary benefit to a primary objective. We have become a fascist/corporatist state (let’s look to the militarization of domestic police and the industries that benefit.)

    Although I am staunchly libertarian (some now call me a bleeding-heart libertarian) I’m beginning to more appreciate the theory of anarchy as developed by Proudhoun and further articulated by Emma Goldman (required reading IMHO). There are days when the anarchy which they envisioned look like a plausible interim to a more rational government. The most disturbing thing to me is that we just might get there. Will we get ti the point of Everyone Shrugged.

    • Big Johansson

      Power to the people (states) Dave. Last gasp before it gets ugly.

    • lizard19

      I’m not surprised, more enraged. like I said in the post, Obama appinting Clapper is one of the biggest, blatant fuck-yous I’ve ever seen.

      I realized early on that Obama’s actions were going to wildly deviate from his rhetoric. all it took was watching who he appointed to his cabinet. the writing was on the wall back then, but pointing to the inconsistencies between rhetoric and action was not a very popular thing to do.

      the apologists pointed to the difficult environment Obama entered. now, with a 2nd term, there isn’t much left for apologists to use to justify Obama’s actions.

      all Democrats have left is demonizing Republicans.

  2. Turner


    You’ve been, to put it mildly, a strong critic of the Obama administration’s policies on national security. I wonder if you think security officials should EVER have access to the e-mails and phone records of Americans or foreigners living in America. If you concede that this access should sometimes be granted, under what conditions might this occur? What oversight mechanisms for allowing this access would be acceptable to you.

    Do you think that it would dangerous or safe for the government to be denied ALL access to private communications?

    • JC

      Turner, do you believe our government should be engaged in constitutional behavior? Because at the root of this, that is the issue. Our constitutional rights have been, and continue to be, violated.

      There’s a long history behind 4th amendment protections, and most Americans would believe that one warrant, one search is reasonable. Not one warrant, endless searches of the masses.

      Whether or not some of us would like to tighten up constitutional protections — like the no corporate personhood constitutional amendment proposals — have no bearing on our demands that our government respect what constitutional rights we currently have.

      • Turner

        JC, In a general way, I agree with you. But I want Liz, who’s always attacking Obama as though he were a war criminal, to tell me whether he thinks governmental intrusions into private communications are ever justified. Maybe like you he supports a one-warrant, one search approach, maybe he doesn’t.

        As for the warrants, do we trust judges to authorize them? Or should the judges be answerable to some sort of review board? What about exigent circumstances?

        I think critics of policies should be able to articulate specific alternatives to the policies they don’t like. And they need to show how the alternatives don’t create new and maybe worse problems.

        • JC

          I’m not speaking for Liz. He’s probably working today, and will get back to this when he can. But I hold a lot of the same policy positions as he does, and apologize for hijacking your comment to start a debate.

          As to whom judges are accountable, for one, it would be juries. Another avenue of accountability is to the voters (for electable judges) who participate in judicial elections. And a final point of accountability would always be an appellate or supreme court. And there are plenty of “exigent circumstances” written into current law — some are reasonable (imminent harm), and some are most likely unconstitutional (stop and frisk comes quickly to mind).

          The problem with FISC warrants is that there is no accountability, or checks and balances. That’s the whole foofaraw about Obama’s new commission. It does nothing to increase transparency or provide accountability outside of the surveillance state.

  3. Entrenched Stalwart

    This post is a perfect example of democrats cutting off their nose to spite their face. Bitch and moan some more, I’m sure a republican would do a better job (comment dripping with sarcasm)

  4. lizard19

    Turner, I’ll respond down here.

    Obama had an opportunity to feign a bit more ignorance, and when faced with the systemic constitutional abuses of the NSA and its network of contractors, to do something, even if symbolic, like fire the hell out of Clapper. instead, almost as if to say to the American people you are a bunch of idiots undeserving of even a symbolic gesture of acknowledgement that what has been going on is substantively unconstitutional, Obama APPOINTS Clapper to review the programs we only know about because of Edward Snowden.

    but to your specific questions, just in the way you ask you appear to be trying to depict my criticism as stating the government should be denied ALL access (your emphasis) private communication. not even the stuanchest critic has argued for that. if there is a specific threat, then authorities can get a warrant. it’s worked for this country for a long time.

    and I’ll remind you that we were recently allegedly attacked by terrorists in Boston, and the FBI had specific warning from Russia about these two young men, so how would the NSA abusing the constitutionally protected rights of nearly every citizen of this country improve on what the FBI can’t even do when specifically warned of threats?

  5. Turner

    Whether or not Clapper lied isn’t absolutely certain. I don’t know how to provide a link to it, but there’s an article on the ABCNews site from June 13 by Abby Phillip that calls the allegation into doubt by providing the context of Wyden’s question that Clapper was trying to respond to.

    He may have lied. But his whole job involves deception, so when he lies (for some apparent-to-him good reason), we shouldn’t be surprised. When national security secrets and congressional oversight intersect, there are bound to be problems.

    Having said this, I’m grateful to Snowden for leaking the info he did. I’d love it if Obama pardoned him preemptively — in the interest of justice and in the recognition that his leaks did no real harm.

    • lizard19

      if you aren’t gobsmacked by Clapper’s appointment, regardless of the nitpicking details about how he constructed his deceit to Congress, then that is a significant part of the problem.

      and pardon Snowden? you don’t stop and frisk a latin American president then use UK tentacles to intimadate Greenwald’s partner if a pardon is even on the radar.

      I also think you are wrong when you say the leaks have done no real harm. I get what you mean, but I think you underestimate the harm these leaks will have on the Democrat brand.

      I could be wrong about that last point. I think there is already a bit of overload with how many different stories have been generated from Snowden’s disclosures.

      also, football season is about to start. I won’t be watching, but tens of millions will be grateful for the entertainment.

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