The Lack of Discipline Is Spelled R-A-H-M

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George Packer has an amusing reflection on Obama’s obsession with appearing disciplined. (via Laura)

While reporting my piece on Richard Holbrooke (still subscribers only—so if you can’t beat ‘em, join ‘em), I learned just how much the Obama White House hates for anything about its policies that doesn’t originate with it to appear in print. Especially anything that describes how policies are reached, who argued what position, and, above all, what the President thought. They really hate it. On the other hand, it’s not easy to get the White House to discuss such things with a writer—certainly not on the record. As a result, it takes a mighty effort (at least, it took a mighty effort for this not-very-plugged-in New York-based writer) to get rudimentary answers.

[snip]

People in the Administration tell me that the horror of unauthorized press accounts is of a piece with the no-drama Obama campaign. They say that Obama hates “process” stories because they end up focussing on trivial matters of personality. They also say that the White House wants to give the impression that everything flows from the top.

Dude! President Obama? Let me help you out here. It took five days–five days!!–for the extraordinary discipline of your campaign to go to shit after you picked Beltway leaker extraordinaire Rahm Emanuel to be your Chief of Staff.

Maybe it’s the addition of beltway leaker extraordinaire, Rahm Emanuel, to the team, but it appears that the Obama team may have adopted a new policy on leaks, departing from their eerily disciplined no-leak approach during the campaign.

Now, I can’t prove causation there, but there’s a pretty strong correlation between that one personnel move and a complete reversal of the No Drama Obama you managed so well during the campaign.

Packer raises some fair objections to the interest in such disciplined messaging. But whether you think it’s a good thing or a bad thing, it seems to me Obama has some very clear options if he wants to return to the discipline of yore.

Obama’s New State Secrets Policy Is Reaffirmation Of Bush’s Policy

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Back in mid June, testifying before the Senate Judiciary Committee, Attorney General Eric Holder announced that the Obama Administration’s long promised new policy on state secrets use would be revealed "within days".

Over three months later, and on the eve of oral argument in al-Haramain v. Obama, the most dangerous case to the government’s unfettered use of state secrets, the Administration has conveniently leaked word that its long awaited new policy on state secrets will be made public, perhaps as soon as today.

From Charlie Savage at the New York Times:

The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

The new policy, which could be announced as early as Wednesday, would require approval by Attorney General Eric H. Holder Jr. if military or espionage agencies wanted to assert the privilege to withhold classified evidence sought in court or to ask a judge to dismiss a lawsuit at its onset.

“The department is adopting these policies and procedures to strengthen public confidence that the U.S. government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests,” says a draft of a memorandum from Mr. Holder laying out the policy and obtained by The New York Times.

In a nutshell, the Administration’s new policy requires that a state secrets claim must be run by the DOJ leadership before being invoked in court. What, this wasn’t being done before?

Contrast this effectively meaningless policy from the Administration with that contemplated by Senators Pat Leahy and Russ Feingold in proposed Senate legislation on state secrets policy (Jerrold Nadler has a similar proposal in the House), which would:

Provide a uniform set of procedures for federal courts considering claims of the state secrets privilege
Codify many of best practices that are already available to courts but that often go unused, such as in camera hearings, non-privilege substitutes, and special masters

Require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits

Forbid judges from dismissing cases at the pleadings stage, before there has been any document discovery, while protecting innocent defendants by allowing cases to be dismissed when they would need privileged evidence to establish Read more →

Race and the Public Option

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MoDo has discovered that racists are upset they have a black President.

I’ve been loath to admit that the shrieking lunacy of the summer — the frantic efforts to paint our first black president as the Other, a foreigner, socialist, fascist, Marxist, racist, Commie, Nazi; a cad who would snuff old people; a snake who would indoctrinate kids — had much to do with race.

I tended to agree with some Obama advisers that Democratic presidents typically have provoked a frothing response from paranoids — from Father Coughlin against F.D.R. to Joe McCarthy against Truman to the John Birchers against J.F.K. and the vast right-wing conspiracy against Bill Clinton.

But Wilson’s shocking disrespect for the office of the president — no Democrat ever shouted “liar” at W. when he was hawking a fake case for war in Iraq — convinced me: Some people just can’t believe a black man is president and will never accept it.

Now, frankly, I think MoDo was partly right in agreeing with Obama advisors that Democratic President will always attract nuts. As Glenn Greenwald argued yesterday:

I have very mixed feelings about the protests of conservatives such as David Frum or Andrew Sullivan that the conservative movement has been supposedly "hijacked" by extremists and crazies.  On the one hand, this is true.  But when was it different?  Rush Limbaugh didn’t just magically appear in the last twelve months.  He — along with people like James Dobson, Pat Robertson, Bill Kristol and Jesse Helms — have been leaders of that party for decades.  Republicans spent the 1990s wallowing in Ken Starr’s sex report, "Angry White Male" militias, black U.N. helicopters, Vince Foster’s murder, Clinton’s Mena drug runway, Monica’s semen-stained dress, Hillary’s lesbianism, "wag the dog" theories, and all sorts of efforts to personally humiliate Clinton and destroy the legitimacy of his presidency using the most paranoid, reality-detached, and scurrilous attacks.  And the crazed conspiracy-mongers in that movement became even more prominent during the Bush years.  Frum himself — now parading around as the Serious Adult conservative — wrote, along with uber-extremist Richard Perle, one of the most deranged and reality-detached books of the last two decades, and before that, celebrated George W. Bush, his former boss, as "The Right Man."

It’s also why I am extremely unpersuaded by the prevailing media narrative that the Right is suddenly enthralled to its rambunctions and extremist elements and is treating Obama in some sort of unique or unprecedented way.  Read more →

al-Haramain Reply Filed; Constitution & Rule Of Law In Judge Vaughn Walker’s Hands

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images5thumbnail1.thumbnail.jpegIn a spring and summer of noteworthy and important legal cases winding in and out of the national conscience, or at least the conscience of the enlightened readers of this blog, perhaps none have as much weight and significance as al-Haramain v. Obama, pending before Judge Vaughn Walker in the Northern District of California. Subsequent to oral argument set before the court on the morning of September 23, Judge Walker will issue a most critical opinion on Plaintiff al-Haramain’s motion for summary judgment.

We have previously discussed in depth the initial motion for summary judgment by plaintiffs and the timeline for the subsequent briefing thereto.

Today, Plaintiff al-Haramain filed their Reply, the last brief joining the issues and argument on plaintiffs’ motion for summary judgment prior to argument and decision.

At long last, the time has come for this Court to adjudicate the merits of this lawsuit and confirm, in the words of lead defendant Barack H. Obama, that “[w]arrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.”

Indeed the time has come, and no less than the sanctity of the Fourth Amendment, Constitutional separation of powers, the continuation of unbridled unitary executive power and the rule of law sits in the hands of Judge Walker. And the plaintiffs’ counsel has teed up the ball quite nicely for him.

On whether the government’s surveillance program was lawful:

Sometimes a litigant’s brief is more significant for what it does not say than for what it says. That is the situation here. After three and one-half years of litigation in which the government has exploited multiple procedural devices to evade an adjudication on the merits, defendants say nothing on the ultimate question now posed for decision: Was the TSP unlawful?
…
Given the present procedural posture of this case, however, that silence has consequences. “[F]ailure of a party to address a claim in an opposition to a motion for summary judgment may constitute a waiver of that claim.” Foster v. City of Fresno, 392 F.Supp.2d 1140, 1146, n. 7 (C.D. Cal. 2005); accord, e,g., Seals v. City of Lancaster, 553 F.Supp.2d 427, 432 (E.D. Pa. 2008) (failure by party opposing summary judgment to address moving party’s claims “constitutes abandonment of those claims”). On this motion for partial summary judgment of liability – where plaintiffs have squarely presented and argued their claims on the merits as to why the TSP was unlawful – defendants’ Read more →

Finder Is CIA’s Keeper In Slanted NYT Op-Ed

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As several here have noted, there is a particularly odious op-ed spinning the CIA torture innocence position in today’s New York Times by self professed novelist Joseph Finder:

Mr. Holder doesn’t seem concerned that each of these cases was exhaustively reviewed, beginning in 2005, by career prosecutors under the supervision of the United States attorney for the Eastern District of Virginia. Those men had access to the complete, unredacted report of the agency’s inspector general, an expurgated version of which was released on Monday. Yet these prosecutors recommended against criminal charges in all but one case. (That exception involved a contractor named David Passaro, who had assaulted a prisoner with a flashlight and kicked him in the groin, shortly after which the prisoner died. Mr. Passaro was convicted of assault and sentenced to eight years in prison.)

Mr. Holder’s decision, then, implies that justice wasn’t done five years ago probably because high-level officials in the George W. Bush administration put their thumbs on the scale of justice. This seems unlikely. The prosecutors in Virginia were well experienced in dealing with classified intelligence matters, as most of the federal intelligence agencies are in their district. They have a reputation for being hardheaded and unforgiving of C.I.A. transgressions.

Lacking reliable witnesses or forensic evidence, they made the only call they could have made: not to prosecute. In our nation of laws, that’s exactly the way you want government prosecutors to behave. And there is no indication that any of them has complained about being pressured to decide against criminal charges. If any new information has come out about these cases, any complaints about undue influence or any new witnesses, Mr. Holder hasn’t mentioned it. The prosecutors in this case had to abide by the Justice Department’s ruling, in August 2002, that no agency interrogator would face prosecution for exceeding the guidelines as long as he acted in “good faith” and didn’t have “the specific intent to inflict severe pain or suffering.” Not an easy distinction to make, surely, when the work you’re told to do seems to be designed precisely to inflict pain and suffering.

Fiction worthy of a novel indeed. As you may recall, it was only ten days ago we last ran into Mr. Finder doing what he apparently does best, spinning for the CIA sub-culture and Bush Administration leaders (who Finder swears is not Addington, but rather "someone who’s actually smart"). And here he is in a new and Read more →

The Tortured Intra-Administration Squabble Continues

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The NYT has another story mapping the tensions within the White House over the torture issue (though this one, which cites Rahm directly, primarily portrays him–implausibly–as the neutral broker), this one focusing on the Holder-Panetta drama. The most interesting passage in the story, though, is this one.

At the time, Mr. Panetta felt besieged on several fronts. Mr. Blair, the intelligence director, was pushing to appoint the senior intelligence officials in each country overseas, a traditional prerogative of the C.I.A.

And other administration officials complained when the C.I.A. sent documents about the detention program to the Senate Intelligence Committee without giving the White House time to consider whether there were any executive privilege issues.

The interagency debate grew heated enough that Mr. Emanuel summoned Mr. Panetta, Mr. Blair and other officials to the White House to set down rules for what should be provided to Congress. Mr. Panetta complained that he was being chastised for excessive openness after being criticized for excessive secrecy when he pushed to withhold details from the interrogation memos.

The various issues raised by the Bush-era interrogation and detention policies have caused other tensions within the Obama team. Mr. Emanuel and others have concluded that the White House mishandled the planning for the closing of the detention center at Guantánamo Bay, Cuba.

Set aside the Blair-Panetta tension over Chiefs of Station here for the moment, which structurally in this passage is just a feint. While I’m sure the Blair-Panetta squabble over Chiefs of Station came up at the meeting, the passage focuses more closely on what CIA gave to SSCI–presumably for its extensive investigation into the torture program. This dispute was reported–as an intra-CIA squabble–back in May. And back then, Mark Hosenball reported that Panetta wanted to give full cables to SSCI, but instead compromised on giving them redacted cables.

Panetta’s instinct was to give Congress what it wanted. But undercover officers warned him that this would break with standard practice, and veteran spies worried that it would chill brainstorming between field agents and their controllers. Aiming to compromise, Panetta signaled to Congress that the CIA would turn over only redacted documents—and that it would take a long time to vet as many as 10 million pages of cable traffic.

Congressional investigators aren’t backing down, however, insisting on all of the material without deletions, including names of personnel who participated in harsh questioning, and holding subpoenas in reserve. 

Read more →

Republicans Are Really Good at Clearing Brush

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If you follow me on twitter, you know that I’ve been anticipating the Republican attack on the Obama vacation by pointing out what Bush was doing 8 years ago (ignoring the PDB) or Cheney was doing 7 years ago (claiming Iraq was close to having nukes).  So I want to give Andrea Mitchell kudos for–as I hoped reporters would do yesterday–calling out this bogus attack.

And KO’s take on this last night might as well have been a "best of" emptywheel’s "brush clearing" tweets.

We’ll see more of this attack in the mere 10 days that Obama is taking away from DC.  May the rest of the press corpse dismiss it with at least as much disdain as Mitchell mustered.

A Chebby In The National Driveway & Lesson In Healthcare Messaging

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24365333-d0ce332479a4cfa5f9580b59294330344a8c6481-scaled.thumbnail.jpgBarack Obama is bad and he’s nationwide. And he’s got a brand new ride. Check out the sled he has rolled up in the driveway of the South Portico of the White House (image by Mark Knoller). I guess when you own GM it ain’t that hard to get a Chevrolet.

Say what you will about NASCAR, they are the absolute masters of brilliant product placement, fan involvement and brand messaging. They never miss an opportunity, and always have the discipline, to be on message, be consistent, sell their ideology and run a forceful and effective PR ship. Today, that ruthless efficiency was brought to the White House and Barack Obama. From the LA Times:

Wednesday afternoon President Obama appeared live on the ESPN2 show "NASCAR Now." The show originated from the White House because three-time NASCAR Sprint Cup champion Jimmie Johnson was being honored for, well, being a NASCAR champion, on the South Lawn of the White House.

"NASCAR Now" host Nicole Manske and talented analyst Brad Daugherty grilled our president about who might win the Sprint Cup championship this year and what he thought about Johnson. We were rewarded with a penetrating answer to that question that included the quote: "He looks like a pretty young guy."

Like I said, brilliant. NASCAR got their champion driver, Jimmy Johnson, in the White House, rolled his #48 Rick Hendrick Lowe’s/Kobalt Tools Chevrolet Impala up for some glamor shots and prime video footage and they managed to get it all covered by ESPN for their proprietary NASCAR show, NASCAR Now.

Now that, folks, is how you sell your product. Were it only that the Barack Obama White House had a fraction of these skills in selling their national healthcare policy. Not so much. In fact, it has been an astoundingly flimsy and ill conceived pitch almost from the start, and we still don’t know what in the world Obama and the White House really stand for on the topic. As Adam Green at Open Left put it:

One could parse, and say Rahm’s quote could still include the possibility of bipartisanship, but still: there’s something called message discipline. The last four days have seen: statement, backtrack, statement, backtrack.
…
Seriously. Can someone describe for me some master plan that might be at play here? If not, White House communications team — WTF?

No kidding. As Adam noted, Jon Stewart sums it up beautifully:

Mr. Read more →

Obama’s First Rendition Looks Very Questionable

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If his first publicly known rendition case is any indication, there may well be a legitimate question as to whether Obama’s rendition program is even more repulsive than that of George Bush. More evidence will be required for an informed answer, but Obama is off to a very inauspicious beginning. From Scott Horton in an exclusive for Huffington Post:

[I]n a federal court in suburban Washington, a case is unfolding that gives us a practical sense of what an Obama-era rendition looks like.

Raymond Azar, a 45-year-old Lebanese construction manager with a grade school education, is employed by Sima International, a Lebanon-based contractor that does work for the U.S. military in Iraq and Afghanistan. He also has the unlikely distinction of being the first target of a rendition carried out on the Obama watch.

According to court papers, on April 7, 2009, Azar and a Lebanese-American colleague, Dinorah Cobos, were seized by "at least eight" heavily armed FBI agents in Kabul, Afghanistan, where they had traveled for a meeting to discuss the status of one of his company’s U.S. government contracts. The trip ended with Azar alighting in manacles from a Gulfstream V executive jet in Manassas, Virginia, where he was formally arrested and charged in a federal antitrust probe.

This rendition involved no black sites and was clearly driven by a desire to get the target quickly before a court. Also unlike renditions of the Bush-era, the target wasn’t even a terror suspect; rather, he was suspected of fraud. But in a troubling intimation of the last administration, accusations of torture hover menacingly over the case. According to papers filed by his lawyers, Azar was threatened, subjected to coercive interrogation techniques and induced to sign a confession. Azar claims he was hooded, stripped naked (while being photographed) and subjected to a "body cavity search."

I would say that the evidence of torture is an allegation at this point; but the optics of forced rendition for simple contracting fraud are disturbing. No terrorism, no deaths, and it does not even appear that Azar is a principal in the company, Sima International.

But in all three previous administrations, renditions have been considered a rare technique reserved for dangerous terrorists and violent drug kingpins. Azar is at worst a secondary figure in a small-time contract fraud case and is not accused in any way of terrorism. Why such aggressive and dramatic techniques were used in Read more →

As the Brush Piles Up in August

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bush-clearing-brush.jpgPolitico covered something yesterday that I’ve been harping on on Twitter all month. Obama (and therefore his staffers) haven’t exactly matched Bush’s commitment to saving the world from overgrown Texas pig farms.

When President Barack Obama heads to Martha’s Vineyard for a little rest and relaxation later this month, it will be his first vacation in the seven months since he took office. And while the boss is away, the West Wing will finally empty out, too.

So far, the Obama administration has been running at a dizzying pace, with jam-packed days and an intense, ever-growing agenda. White House press secretary Robert Gibbs hasn’t missed a single daily briefing at the White House since his boss took office in January. With the exception of a long weekend or two, chief of staff Rahm Emanuel has hung around town. Senior adviser David Axelrod has yet to take a vacation other than a few jaunts to Chicago for Bulls games.

“I don’t think we had any other option,” Axelrod said in an interview with POLITICO. “There’s a lot of work to be done. We’ve got a lot of problems to solve. That requires a lot of energy and a lot of attention.”

But the holidays are here at last. Vice President Joe Biden will vacation on Kiawah Island in South Carolina for the next week. Senior adviser Valerie Jarrett will follow POTUS, her longtime friend, to the Vineyard during the last week in August. Axelrod will head for his lakeside vacation home in Michigan. Emanuel’s aides say he will take some time off, but they were unsure if he would head for Michigan, where he also has a home, or Florida, where he has vacationed, or someplace else.

Aside from a rather self-interested impatience on my part for Axe and Rahm to get to MI and start spending wads of cash, I raise this for a couple of reasons.

First, love or hate what the Obama Administration is doing, they’re working their asses off. It’s something that the press hasn’t covered, really. And in this story, the only comparison with Bush is a mention of the number of days in August 2001–24–that Bush spent clearing brush; by my count, Obama will have 11 vacation days this August, including a 4-day weekend next weekend. Read more →