Jarvik v CIA cited in ACLU CIA FOIA Case Decision

Interestingly,the court said the decision in my case was unusual, yet it was a precedent for denial on appeal of an ACLU FOIA request for information on drone strikes by DC Circuit Court of Appeals Chief Judge Merrick B. Garland. Stay tuned...

Story here:
http://www.lawfareblog.com/2013/03/d-c-circuit-rejects-glomar-response-in-aclucia-drone-foia-suit/

Ruling here: http://www.cadc.uscourts.gov/internet/opinions.nsf/6471FF102FC611A685257B2F004DEA2A/$file/11-5320-1425559.pdf

In the New York litigation, the CIA said that it did not want to file a Vaughn index at all, but instead submit what it called a “no number, no list” response -- acknowledging that it had responsive documents, but declining to “further describe or even enumerate on the public record the number, types, dates, or other descriptive information about these responsive records.” Bennett Decl. ¶ 28. Although the CIA’s New York filings speak as if the notion of a “no number, no list” response is well- established, it has not previously been considered by this court. Indeed, at the time of those filings, there were only two previously reported instances of such a response: it was briefly mentioned in one district court case in this circuit, Jarvik v. CIA,741 F. Supp. 2d 106, 123 (D.D.C. 2010), and was litigated once before the Seventh Circuit, Bassiouni v. CIA, 392 F.3d 244, 246-47 (7th Cir. 2004). There are now two more reported instances: another brief mention by a district court in this circuit, Nat’l Sec. Counselors v. CIA, No. 11-443, 2012 WL 4903377, at *38(D.D.C. Oct. 17, 2012), and the district court’s recent grant of summary judgment in favor of the CIA in the New York litigation, New York Times Co. v. U.S. Dep’t of Justice, No. 11-cv-9336, 2013 WL 50209 (S.D.N.Y. Jan. 3, 2013). [Editor's note: This last ruling declares the importance of my case to FOIA law: "Neither Bassiouni nor Jarvik, the two cases upon which the Government principally relies..."]

Citing the Seventh Circuit’s view that a “no number, no list” response is “legally identical” to a Glomar response, Bassiouni, 392 F.3d at 247, the plaintiffs argue that, if the CIA is not entitled to make a Glomar response in this case, it is also not entitled to make a “no number, no list” response. Pls.- Appellants’ Opp’n to Remand Mot. 4-5. At least in a case like this, however, there is a material difference between a “no number, no list” response and a Glomar response. A Glomar response requires the agency to argue, and the court to accept, that the very fact of the existence or nonexistence of responsive records is protected from disclosure. That is conceptually different from conceding (or being compelled by the court to concede) that the agency has some documents, but nonetheless arguing that any description of those documents would effectively disclose validly exempt information. There may be cases where the agency cannot plausibly make the former (Glomar) argument with a straight face, but where it can legitimately make the latter. 

Indeed, a “no number, no list” response might be viewed as a kind of Vaughn index, albeit a radically minimalist one. Such a response would only be justified in unusual circumstances, and only by a particularly persuasive affidavit. Nor is there any reason to regard this approach as subject to an on/off switch. As we have just noted, once an agency acknowledges that it has some responsive documents, there are a variety of forms that subsequent filings in the district court may take. A pure “no number, no list” response is at one end of that continuum; a traditional Vaughn index is at the other. Not quite as minimalist as a pure “no number, no list” response might be a “no number, no list” response (or even a Glomar response) with respect to a limited category of documents, coupled with a Vaughn index for the remainder.

But we are getting ahead of ourselves. None of these issues has been litigated in this case, either in this court or in the district court, because summary judgment was granted in the face of an unqualified, across-the-board Glomar response.13 No government affidavit has yet been filed in this case that even attempts to justify a “no number, no list” response. And neither a traditional Vaughn index nor affidavits justifying an alternative submission have been filed. Accordingly, all such issues remain open for the district court’s determination upon remand.

V
For the foregoing reasons, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.
So ordered. 

RubinReports

RubinReports on Pres. Obama's Israel trip:

The idea that Israel needs to persuade its neighbors to accept its existence is a line we have heard almost daily since the 1980s or even 1970s. Yet curiously the Arab street pays no attention to the scores of such Israeli gestures and the West soon forgets each one. And indeed Obama has forgotten those that took place during his first term, for example the nine-month-long settlement construction freeze, just as before that were forgotten the Oslo agreement, Israeli withdrawal from the Gaza Strip, the 2000 Camp David offer (including the offer to redivide Jerusalem!) and many more. [See Footnote, below]

Guess what? If today Israel were to make a huge new concession, six months from now that would be forgotten in the West, which would also forget that there was no considerable Arab response. Israelis know this and so saying this kind of thing about Israel proving its decent intentions can only fall with a cynical thud. Such statements remind Israelis why they are NOT rushing to make new concessions or take new risks.

Note, too, that Western and European promises to give Israel a big reward if Israel takes a big risk or makes a big concession and the Arab side doesn't respond have also been repeatedly broken.

What Obama is in effect saying is “Mr. Netanyahu, tear down that [security, counterterrorist] wall.” When he should be saying to the other side: “Mr. Abbas, Mursi, et. al., tear down that wall of hatred against Israel!”

Of course, he won’t do so because that would make the Arab leaders and publics mad, not because they want Israel to move faster on peace or seek a better deal but because they don't want peace at all. And the Islamists coming into power have no intention of tearing down the wall. In fact, they are building it higher than ever. And there's nothing--absolutely nothing--Israel can do to change the course of events in that respect.

Moreover, in a context where the same point is not made loudly, clearly, and publicly to the Palestinian Authority, the idea that the burden is on Israel to prove its peace credentials is a veiled way of Obama saying--and signaling to his supporters--that Israel is responsible for the failure to achieve peace.

A friend from Vermont just shared this Gallup Poll...

American Sympathy For Israel at All-Time High: pxhttp://www.gallup.com/poll/161387/americans-sympathies-israel-match-time-high.aspx

Is Eric Holder Too Big To Jail?

From ZeroHedge: http://www.zerohedge.com/print/471518

Our justice department has been sold out. They are now the enemy of the people.

If any person is too big to prosecute then your justice system is a sham, a lie, a farce, a joke, a bastardization of all that America used to stand for. Ultimately, it becomes a tool to enforce the will of fascists.

My grandfather, W. H. Mantor was a sheriff, a lawyer, and a judge in Crow Wing County, MN.

My father worked in the City Attorney’s office and had a private practice in St. Paul. Several of my friends have worked in law enforcement. I used to have respect for an institution that existed to make certain that the rights of every citizen would be protected.

I can only describe what I am witnessing as personally heartbreaking. I had such respect for the institution of law and its ideals.

And all the while, the erosion of basic legal equity has been brought about by a lap dog media that hides the truth and takes its cut of the illegal profits.

Pat Caddell Say Corrupt GOP Criminals Like Romney & Rove Should BeProsecuted Under RICO

At CPAC, according to this story: http://www.bizpacreview.com/2013/03/15/pat-caddell-sets-off-firestorm-at-cpac-2013-accuses-consultants-of-racketeering-55715

Participating in a panel — “Should We Shoot All the Consultants Now?” — Caddell accused the GOP consulting class of being only “in the business of lining their pockets and preserving power.”
“When you have the Chief of Staff of the Republican National Committee and the political director of the Romney campaign, and their two companies get $150 million at the end of the campaign for the “fantastic” get-out-the-vote program… some of this borders on RICO [the 1970 Racketeer Influenced and Corrupt Organizations Act] violations,” Caddell told attendees.
“The Republican Party is in the grips of what I call the CLEC — the consultant, lobbyist, and establishment complex,” Caddell said.
In what was described by Breitbart as a blistering attack on “racketeering” Republican consultants who play wealthy donors like “marks,” Caddell added:
“I blame the donors who allow themselves to be played for marks. I blame the people in the grassroots for allowing themselves to be played for suckers….It’s time to stop being marks. It’s time to stop being suckers. It’s time for you people to get real.”
In comparing Republicans unfavorably to Democrats, Caddell said: “In my party we play to win. We play for life and death. You people play for a different kind of agenda… Your party has no problem playing the Washington Generals to the Harlem Globetrotters.”

Daniel Pipes on US Denial

http://www.danielpipes.org/12604/islam-role-terror

The military leadership willfully ignores what stares them in the face, namely Hasan's clear and evident Islamist inspiration; Protecting the Force mentions "Muslim" and "jihad" not a single time, and "Islam" only once, in a footnote.[4] The massacre officially still remains unconnected to terrorism or Islam.

This example fits in a larger pattern: The establishment denies that Islamism—a form of Islam that seeks to make Muslims dominant through an extreme, totalistic, and rigid application of Islamic law, the Shari'a—represents the leading global cause of terrorism when it so clearly does. Islamism reverts to medieval norms in its aspiration to create a caliphate that rules humanity. "Islam is the solution" summarizes its doctrine. Islam's public law can be summarized as elevating Muslim over non-Muslim, male over female, and endorsing the use of force to spread Muslim rule. In recent decades, Islamists (the adherents of this vision of Islam) have established an unparalleled record of terrorism. To cite one tabulation: TheReligionOfPeace.com counts 20,000 assaults in the name of Islam since 9/11,[5] or about five a day. In the West, terrorist acts inspired by motives other than Islam hardly register.

It is important to document and explain this denial and explore its implications. The examples come predominantly from the United States, though they could come from virtually any Western country—except Israel.

The DiploMad 2.0: The New Pope

The DiploMad 2.0: The New Pope: Disclaimer: I am not Catholic. I comment with trepidation. The Cardinals have picked an Italian Pope without picking an Italian Pope. It...

RubinReports on Obama's Muslim Brotherhood Strategy

RubinReports on Obama's Muslim Brotherhood strategy during the Arab Spring:

But let’s look at precisely how the White House described the U.S. policy it wanted:

"...how the administration could push for political change in countries with autocratic rulers who are also valuable allies of the United States,"

In other words, a popular revolt was going to happen (I’ve seen the cables from the U.S. embassy in Tunisia that accurately predicted an upheaval) but would it succeed or fail? The Obama Administration concluded that the revolt should succeed and set out to help make sure that it did so. As for who won, it favored not just moderate Islamic forces--which hardly existed as such--but moderate Islamist forces, which didn't exist at all.

Anyone who says that the United States did not have a lot of influence in these crises doesn’t know what they are talking about. Of course, the U.S. government didn’t control the outcome, its leverage was limited. But there’s a big difference between telling the Egyptian army to stay in control, dump Mubarak, and make a mild transition—and we, the United States, will back you—or telling them that Washington wanted the generals to stand aside, let Mubarak be overthrown, and have a thoroughgoing regime change, a fundamental transformation, to coin a phrase.

So the Obama Administration did not stand beside friendly regimes or help to manage a limited transition with more democracy and reforms. No, it actively pushed to bring down at least four governments—Bahrain, Egypt, Tunisia, and Yemen.

It did not push for the overthrow of two anti-American regimes—Iran and Syria—but on the contrary was still striving for good relations with those two dictatorships. Equally, it did not push for the fall of radical anti-American governments in Lebanon and the Gaza Strip. No, it only pushed for the fall of “valuable allies.” There was no increase in support for dissidents in Iran despite, as we will see in a moment, internal administration predictions of unrest there, too. As for Syria, strong administration support for the dictatorship there continued for months until it was clear that the regime was in serious trouble. It seems reasonable to say that the paper did not predict the Syrian civil war.

Want more evidence about the internal administration document? Here's another article from the time which explains:

"The White House had been debating the likelihood of a domino effect since youth-driven revolts had toppled President Zine el-Abidine Ben Ali in Tunisia, even though the American intelligence community and Israel’s intelligence services had estimated that the risk to President Mubarak was low — less than 20 percent, some officials said. 

"According to senior officials who participated in Mr. Obama’s policy debates, the president took a different view. He made the point early on, a senior official said, that `this was a trend' that could spread to other authoritarian governments in the region, including in Iran. By the end of the 18-day uprising, by a White House count, there were 38 meetings with the president about Egypt. Mr. Obama said that this was a chance to create an alternative to “the Al Qaeda narrative” of Western interference."

Notice that while this suggests the debate began after the unrest started, full credit is given to Obama personally, not to U.S. intelligence agencies, for grasping the truth. This is like the appropriation by the White House of all the credit for getting Usama bin Ladin, sort of a cult of personality thing. We know for a fact that the State Department predicted significant problems arising in Tunisia (from the Wikileaks documents) and perhaps that is true for other countries as well. But if Obama wants to take personal credit for the new U.S. policy that means he also has to take personal blame for the damage it does.

Now I assume what I'm about to say isn't going to be too popular but I'll also bet that history will prove it correct: The revolution in Egypt was not inevitable and Obama's position was a self-fulfilling prophecy. And judging from what happened at the time, Secretary of State Hillary Clinton agrees with me. The idea of an "alternative to `the al-Qaida narrative"'of Western interference is straight Brennan. What Obama was really saying was: Ha! So al-Qaida claims we interfere to put reactionary pro-Western dictators in power just because they're siding with us? We'll show them that we can put popular Islamist dictators in power even though they are against us!

If I'm writing this somewhat facetiously I mean it very seriously. 

And here's more proof from the Washington Post in March 2011 which seems to report on the implementation of the White House paper's recommendations:

"The administration is already taking steps to distinguish between various movements in the region that promote Islamic law in government. An internal assessment, ordered by the White House last month, identified large ideological differences between such movements as the Muslim Brotherhood in Egypt and al-Qaeda that will guide the U.S. approach to the region." That says it all, doesn't it? The implication is that the U.S. government knew that the Brotherhood would take power and thought this was a good thing.

It continued:

"`If our policy can't distinguish between al-Qaeda and the Muslim Brotherhood, we won't be able to adapt to this change,'" the senior administration official said. "`We're also not going to allow ourselves to be driven by fear."'

Might that be then counterterrorism advisor and now CIA director John Brennan? I'd bet on it.

What did Obama and his advisors think would happen? Why that out of gratitude for America stopping its (alleged) bullying and imperialistic ways and getting on the (alleged) side of history the new regimes would be friendly. The Muslim Brotherhood in particular would conclude that America was not its enemy. You know, one Brotherhood leader would supposedly say to another, all of these years we thought the United States was against us but now we see that they are really our friends. Remember Obama's Cairo speech? He really gets us!

More likely he'd be saying: We don't understand precisely what the Americans are up to but they are obviously weak, cowardly, and in decline! In fact, that's what they did say. Remember that President Jimmy Carter's attempts to make friends with the new Islamist regime in Iran in 1979 fed a combination of Iranian suspicion and arrogance which led to the hostage crisis and Tehran daring to take on the United States single-handed. America, Ayatollah Ruhollah Khomeini at the time, can't do a damned thing against us.

Incidentally, everyone except the American public—which means people in the Middle East—knows that Obama cut the funding for real democratic groups. His Cairo speech was important not for the points so often discussed (Israel, for example) but because it heralded the age of political Islamism being dominant in the region. Indeed, Obama practically told those people that they should identify not as Arabs but as Muslims.

In broader terms, what does Obama’s behavior remind me of? President Jimmy Carter pushing Iran’s shah for human rights and other reforms in 1977 and then standing aloof as the revolution unrolled—and went increasingly in the direction of radical Islamists—in 1978.

As noted above, that didn’t work out too well.

Why I Don't Believe Sheryl Sandberg, Either...

Three years ago, I wrote a blog post called "Why I Don't Believe Thomas Friedman" which recounted his poor track record as an equity analyst of Amazon.com. Anyone investing according to Friedman would have lost money. But I didn't believe him, and am still a satisfied Amazon stockholder as I write today...

Which brings me to media promotion for Sheryl Sandberg's new book, Lean In. Quite simply, the amount of hype surrounding this launch appears surreal. Sandberg seems like she's being positioned for something big in the future by the powers that be. No question about that.

However, one bullet point missing from media discussion of her putatively new approach to feminist theory is any analysis of her role in the Facebook IPO--for which she shares responsibility as Facebook's COO.  Here's what Wikipedia has to say about the fateful May 18, 2012 market offer:

Facebook's long-anticipated initial public offering was ultimately plagued by a series of problems. Its exchange, Nasdaq, suffered a computer malfunction during the first hours of the IPO, leading to tens of millions of dollars in trades being wrongly placed. Its underwriter, Morgan Stanley, faced claims that the intial price was too high and that they had issued too many shares. With some Facebook executives, were accused of alerting industry insiders to Facebook's earnings before they were public. Facebook, Morgan Stanley, and Nasdaq are facing litigation over the matters. The stock lost over a quarter of its value in less than a month and went on to less than half its IPO value in three months.

For me, Sheryl Sandberg lost whatever credibility she may have had on May 18, 2012, in her botched handling of Facebook's IPO.

Why don't some of her interviewers ask her about that?

UPDATE: Apparently, because Sandberg refuses to talk about the IPO, as this post at the Huffington Post explains: NYC 123

14 Fans

10:01 AM on 03/10/2013

I'd like Ms. Sandberg to start answering the tough but fair questions surrounding the Facebook IPO that she has refused to discuss with reporters as millions of small retail investors, including many women lost thosands of dollars while Ms. Sandberg and her boss received millions. 

What exactly was your role Ms. Sandebrg in the Facebook IPO - the biggest debacle in the history of Wall St. Did you agree with the valuation and $38 share price set by Morgan Stanley? If not, did you "lean in" and express your concerns to the bankers on Wall St about the way it was being handled? If so, to whom and what if anything was done about it? 

What do you say to the thousands of small investors, including working class women who trusted you and bought into the IPO only to lose big time while you personally reaped tens of millions off the deal? This and marny more questions about your direct role in the Facebook IPO must be answered. 

Ms. Sandberg and her boss should be investigated by the SEC over their direct involvement and actions in the Facebook IPO and they both need to start answering the tough questions that CNBC and others have put to them and stop hiding behind their corporate lawyers.

UPDATE 2: A May 23, 2012 Huffington Post article--headlined

Sheryl Sandberg Ducks Questions At Harvard About Facebook IPO Debacle--noted:

 Sandberg, who visited her alma mater with her parents and two children, only once made reference to the IPO in her speech. After urging the graduates to use Facebook to stay in touch, she said: "We're public now, so could you please click on an ad or two while you're there."

Asked before and after the speech to comment on the IPO, Sandberg said she was not speaking to the media.

IMHO a more appropriate title for Sheryl Sandberg's new book might have been:  DUCK! How to use a gender smokescreen to divert media attention from alleged securities fraud.

And yes, Sheryl K. Sandberg is named as a defendant along with Mark Zuckerberg in multiple cases alleging securities fraud over the Facebook IPO, according to a Justitia docket search--a fact not mentioned in most of the mindless and embarrassing media hype surrounding the launch of her self-serving book (which might possibly be seen by some as an attempt at jury tampering).

Or--is billionaire corporate executive Sheryl K. Sandberg "too big to jail?"

UPDATE 3: Apparently the markets don't believe Sheryl Sandberg, either, according to this CNN report: http://buzz.money.cnn.com/2013/03/13/facebook-stock-netflix/

Facebook's (FB) stock fell more than 2%, continuing a slide since the social network reported fourth-quarter earnings back in January. Shares are now down 10% since that report.
It's an understatement to say that this is not what the company probably had in mind following its ballyhooed initial public offering last year. Making matters worse, the Facebook dip comes at a time when the overall market is surging and tech stocks not named Apple (AAPL) are on fire.

UPDATE 4: Blogger Thierry Hubert had accused Sandberg of advocating click fraud, here http://thierryhubert.blogspot.com/2012/05/facebooks-sheryl-sandberg-asking.html.

More Insights from Peter Van Buren...

From his We Meant Well blog:

In Anwar Al-Awlaki’s case, the Government has not made much of a case (never mind for the passport, remember he was murdered by a drone). In fact, officially, we do not know why al-Awlaki was killed at all, or under what laws or by what decision process. Some reports tie him to the failed idiot underwear bomber, but being part of a failed plot seems not to rise to the usual standard for capital punishment. It is all secret.

The Government of the United States executed one of its own citizens abroad without any form of due process. This is generally seen as a no-no as far as the Bill of Rights goes. The silly old Fifth Amendment to the Constitution guarantees “no person shall be deprived of life without due process of law” and includes no exceptions for war, terrorism, or being a really bad human being.

Could the passport revocation have been simply a ruse, a bureaucratic CYA attempt at providing some sort of illusion of “due process?” Could al-Awlaki’s not dropping by the U.S. Embassy to chat about his passport have been a veiled attempt to justify his killing in that he was thus not able to be arrested? Or was the passport revocation just a simple act of dehumanizing someone to make killing him that much more palatable?

We’ll never know.

AND:

The Back Channel tells us that McGurk will likely be tapped as the next State Department Deputy Assistant Secretary of State for Iraq and Iran. The State Department plans to combine the two offices because, well, McGurk likely can’t tell the difference between the two countries anyway, damn foreigners, and because there isn’t anything really that important going on in either place to justify its own DAS. The blog calls the appointment a “done deal.”

Where to Begin?

McGurk spent a good portion of the last ten years working for the U.S. Government in Iraq, advising several ambassadors and leading the failed negotiations to secure permanent U.S. bases there. You’d kinda think having that on your resume– I am partially responsible for everything that happened in Iraq for the last ten years, including America’s tail-between-its-legs retreat– might make it hard to get another job running Iraq policy. Who goes out of their way to hire the coach that lost most of his games?

The other side of McGurk’s failed attempt at being ambassador was his questionable personal life, which in turn raised issues of judgement, decorum, discretion, and class. Like with Petraeus, it was sexual misconduct that brought the real questions of competence and ability to light.

Six members of the Senate Foreign Relations Committee at the time called on Obama to withdraw McGurk’s nomination, meaning that as DAS McGurk already enjoys a warm relationship with his key committee on the Hill. His appointment after the Senate nixed him will also no doubt enhance the State Department’s overall reputation during the budget process. And of course being the DAS and having everyone in your office know your sleazy backstory ensures you will be taken seriously.

As well-documented across the internet, in addition to emails trading sex for access (a two way deal between McGurk and the then-Wall Street Journal’s Gina Chon [she resigned), we add another item, accusations of a McGurk sex tape from Iraq. The giver of the taped sex was a State Department Foreign Service Officer, gratefully female, inevitably Public Diplomacy.

Elsewhere, the Washington Post reported that McGurk invited his then-mistress Gina Chon to be a guest lecturer at a Harvard course he taught in 2009. Harvard students attending the class had no idea that their teacher was romantically involved with Chon, who spoke to them about her experience
reporting getting inside info by sleeping with her sources in Iraq, according to a student who attended.

State Department at Work

Only the Department of State today stands proudly alone declaring that no one else in the entire U.S. government, or the entire United States for that matter, is qualified to serve as
ambassador to Iraq Deputy Assistant Secretary of State for both Iraq and Iran but a guy who has done nothing in his 39 years of life but be politically appointed to Iraq jobs (none earned, elected or competitively chosen, just appointed), making a selfish hash out of even that.

McGurk is Not the Exception But the Rule

McGurk’s supporters cite his years of experience in Iraq. But would you choose a heart surgeon who lost most of his patients on the operating table simply because he had been doing it for ten years? Experience is merely time served; competence requires judgement to be exercised.

The issue of McGurk, however, is sadly not one in isolation at Foggy Bottom. While it is clear, ten years after, that the U.S. efforts in Iraq in general and the State Department-led reconstruction in the specific were almost complete failures, let’s look at (as an example) the chain of command that oversaw my own Provincial Reconstruction Teams’ efforts and see what happened to them all since:

Me: Blacklisted by State

My Boss: Now an Army contractor advising on reconstruction in Afghanistan

His Boss (Not McGurk): A Deputy Assistant Secretary of State

That Guy’s Boss: Appointed an Ambassador

Her Boss: Appointed an Ambassador

Ambassador to Iraq at the Time: Dean of the Korbel School of Diplomacy in Colorado

His boss, Secretary Clinton: Waiting to become president in 2016.

And that’s the saddest news of all: while the McGurk saga is perhaps a more extreme instance, and certainly more fun with its tawdry sex aspect than mere bureaucratic failure, the upward movement of failed people at the State Department exists almost as a policy. That policy, spelled out in a few words, is simple: people are rewarded for longevity at best, for keeping their mouths shut at worst, and competence is never really part of the calculus. While there are certainly competent people in senior positions within the State Department, they all had to primarily pass the tests of loyalty and time-served first.

Sen. Rand Paul's Historic Filibuster Against John Brennan & Drones Live on C-Span2

Streaming Live on C-Span2: http://www.c-span.org/Live-Video/C-SPAN2/

Rand Paul's Senate Website: http://www.paul.senate.gov

Final SIGIR Iraq Report's Bottom Line: Peter Van Buren Was Right

IMHO, that's the takeaway from the long corporate-style document called "Learning from Iraq: A Final Report From the Special Inspector General for Iraq Reconstruction." 

You can read the IG report online in its entirely here: http://www.sigir.mil/learningfromiraq/index.html. 

But if you've read Peter Van Buren's We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, you already knew.

RubinReports: Is Chuck Hagel America's Haman?

From Barry Rubin's RubinReports: The Book of Esther: A Political Analysis

Third, Haman provides the classic,  statement of non-theological antisemitism that could easily fit into the nineteenth and twentieth century and even today, mirroring the kinds of things hinted for example by nominee for secretary of defense Chuck Hagel. Haman explained:

“There is a certain people, scattered and dispersed among the other peoples…of your realm, whose laws are different from those of any other people and who do not obey the king’s law, and it is not in your majesty’s interest to tolerate them.”

In other words, the Jews comprise what would later be called a separate national group. It is impossible to assimilate them; they are disloyal due to dual loyalty; and despite their apparent weakness they plot against you.

I'm sure that Hagel is not antisemitic in any conscious way yet he echoes the same themes that Haman used. Haman might have said that he was not a "Jewish" minister but a "Persian" minister, who would not bow down to the Jewish lobby whose interests subverted those of the nation.  

A contemporary problem in understanding antisemitism today is that hegemonic political, intellectual, and informational forces in the West want to measure antisemitism by conscious intent and not by the use of well-worn historical (these are even in the Bible!) themes, though that is precisely the criterion that they do use in examining just about any other sort of bigotry. They also begin by excluded all non-Western populations from possibly being antisemitic. But Haman was residing in a non-Western society.  

We Meant Well: We Are All Bradley Manning by Peter Van Buren

We are All Bradley Manning: 1000 Days in Jail without a Conviction

February 25, 2013 // 3 Comments

Tags: Free Speech, Manning, Wikileaks
Posted in: Democracy, Iraq

Bradley Manning, the young army private who allegedly disclosed the Wikileaks files, must be given a fair, open and speedy trial. He has been held over three years, often in solitary and inhumane conditions. He has been convicted of no crime. This is simply and self-evidently wrong.

The crimes Manning is accused of, a cascading series of offenses all restating that he leaked classified material, hurt no one; the government, in fact, has gone out of its way to declare that it need not show any damage done in its pursuit of the death penalty for Manning. The US Department of State, whose 100,000 leaked cables have been on the internet for over three years, formed then quickly disbanded a “task force” designed to show all the terrible things that resulted from Manning’s alleged disclosures. The Department has since, in response to Freedom of Information Act requests, itself released documents Manning is threatened with the gallows for releasing. No harm has been shown, no lives lost, no American goals thwarted.

I probably had dinner with Bradley Manning when we were both stationed at Forward Operating Base Hammer in Iraq at the same time (I worked for the Department of State). The office where he allegedly did his dirty work was down the hall from mine, so it is hard to believe we never walked past each other or shared a table in the single cafeteria on base.

In 2011 as a State Department employee, I linked from my personal blog to a document on the Wikileaks site, a document that may have been provided by Manning. In return for this simple internet link, the State Department took away my security clearance, threatened me with prosecution and stripped me of my career of 24 years as a diplomat, all without any review, due process or opportunity to rebut their silly accusation that I too had disclosed classified material, via a hyperlink. My life changed, with a stroke of a pen, as is said.

Bradley Manning, convicted of no crime, is in his third year of incarceration. He spent part of the first year in a literal cage in Kuwait, followed by a year or more in custody where he was stripped of his clothing, not allowed contact with any humans besides his jailers and constantly mocked, ridiculed a and taunted, all without any review, due process or opportunity to rebut the accusations against him. With a stroke of a pen, as is said.

A lot of things happen now in America with the stroke of a pen: innocent people end up on no-fly lists, Occupy organizers have their phone calls and emails monitored, jobs are denied to hard working people after some “background check” fails and in the ultimate, a drone may kill a person. All without any review, due process or opportunity to rebut.

Our nation was founded on a set of ideas, some dating as far back as the Magna Carta. Chief among those ideas was an overriding principle that the people should be able to live their lives unmolested by their government, and that to ensure that, restraints were written into law that would prevent the government from taking away someone’s privacy, freedom or life arbitrarily. Courts, open and public, would weigh the government’s desire to deprive people of their lives against these broader principles. It was what made America a special place, perhaps the only nation founded on an idea. We have abandoned those concepts. We have failed Bradley Manning and we have failed ourselves.

I don’t know what Bradley Manning did, and neither do you. A court must decide, in a speedy and open manner because that is what our America is about. Everyday Manning is denied that right—and it was 1000 days as of February 23—we are all denied that right. America is nothing but a sum of its people, and when we deny justice to one we deny it to all. Give Bradley Manning a fair, speedy and open trial for his sake, for our own sake and for this nation’s sake.

SOURCE: We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People by Peter Van Buren

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Lars Hedegaard, Defender of Freedom

Lars Hedegaard, Defender of Freedom

Peter Van Buren on Drones & the 5th Amendment

From: http://wemeantwell.com/blog/2013/02/08/sticking-to-our-rights-to-protect-our-rights/

Q: If a foreign organization kills an American overseas for political reasons, it is called…
A: Terrorism.

Q: If the United States kills an American overseas for political reasons, it is called…
A: Justice.

The Government of the United States, currently under the management of a former professor of Constitutional law, is actively killing its own citizens abroad without any form of due process. This is generally seen as a no-no as far as the Bill of Rights, the Magna Carta and playground rules goes. The silly old Fifth Amendment to the Constitution guarantees “no person shall be deprived of life without due process of law” and include no exceptions for war, terrorism, or being a really shitty human being.

On or about May 7, 2011 a US military drone fired a missile in Yemen (which is another country that is not our country) aimed at American Citizen Anwar al Awlaki, a real-live al Qaeda guy. The missile instead blew up a car with two other people in it, quickly dubbed “al Qaeda operatives” since we killed them. The US has shot at al Awlaki before, including under the Bush administration. In justifying the assassination attempt, Obama’s counterterrorism chief Michael Leiter said al Awlaki posed a bigger threat to the U.S. homeland than bin Laden did, albeit without a whole lot of explanation as to why this was. But, let’s be charitable and agree al Awaki is a bad guy; indeed, Yemen sentenced him to ten years in jail (which is not execution, fyi) for “inciting to kill foreigners” and “forming an armed gang.”

While the al Awlaki killing is old news, the new news is that the drone that did him fly out of a previously secret U.S. base in Saudi Arabia. Conveniently, that base was secret pretty much only from the American public, as it turns out that an “informal arrangement among several news organizations that had been aware of the location for more than a year.” Those news organizations included the New York Times, the Washington Post, the Associated Press and Fox. The limp newsies kept the secret because the Obama administration claimed disclosure might carry “potential national-security risks.” The U.S. militarization of Saudi Arabia after the 1991 Gulf War is often cited by al Qaeda as one of its prime recruitment tools, so the disclosure indeed reveals a significant dumb ass decision by the U.S.

Attorneys for al Awlaki’s father tried to persuade a US. District Court to issue an injunction preventing the government from the targeted killing of al Awlaki in Yemen, though a judge dismissed the case, ruling the father did not have standing to sue. My research has so far been unable to disclose whether or not this is the first time a father has sought to sue the US government to prevent the government from killing his son but I’ll keep looking. The judge did call the suit “unique and extraordinary” so I am going to go for now with the idea that no one has previously sued the USG to prevent them from murdering a citizen without trial or due process. The judge wimped out and wrote that it was up to the elected branches of government, not the courts, to determine whether the United States has the authority to murder its own citizens abroad.

Just to get ahead of the curve, and even though my own kids are non-terrorists and still in school, I have written to the president asking in advance that he not order them killed. Who knows what they might do? One kid has violated curfew a couple of times, and another stays up late some nights on Facebook, and we all know where that can lead.

The reason I bring up this worrisome turn from regular person to wanted terrorist is because al Awlaki used to be on better terms with the US government himself. In fact, after 9/11, the Pentagon invited him to a luncheon as part of the military’s outreach to the Muslim community. Al Awlaki “was considered to be an ‘up and coming’ member of the Islamic community” by the Army. He attended a luncheon at the Pentagon in the Secretary of the Army’s Office of Government Counsel. Al Awlaki was living in the DC area at that same, the SAME AREA MY KIDS LIVE, serving as Muslim chaplain at George Washington University, the SAME UNIVERSITY MY KIDSmight walk past one day.

Even though Constitutional law professor Obama appears to have skipped reading about the Fifth Amendment (release the transcripts! Maybe he skipped class that day!), courts in Canada have not.

A Toronto judge was justified in freeing an alleged al Qaeda collaborator given the gravity of human rights abuses committed by the United States in connection with his capture in Pakistan, the Ontario Court of Appeal ruled. Judges are not expected to remain passive when countries such as the US violate the rights of alleged terrorists, the court said Friday.

“We must adhere to our democratic and legal values, even if that adherence serves in the short term to benefit those who oppose and seek to destroy those values,” said the Canadian court.

Golly, this means that because the US gave up its own principles in detaining and torturing this guy, the Canadians are not going to extradite him to the US. That means that the US actions were… counterproductive… to our fight against terrorism. The Bill of Rights was put in place for the tough cases, not the easy ones. Sticking with it as the guiding principle has worked well for the US for about 230 years, so why abandon all that now?

Meanwhile, I’ll encourage my kids to stay inside when they hear drones overhead.

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Destroying Rights Guaranteed Since the Magna Carta

From: We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People by Peter Van Buren

Destroying Rights Guaranteed Since the Magna Carta
by Peter Van Buren

Here are the Department of Justice’s legal argumentsgranting permission to the president to assassinate Americans if they are connected with al Qaeda, essentially destroying rights guaranteed citizens since the Magna Carta– right to life, right to a trial, right to due process.

This will be one of the documents historians study years from now while chronicling the end of the American experiment in democracy. Those historians will conclude that no foreign power defeated us; we ate ourselves.

Torture as American Policy

The release of these legal arguments comes on the same day that the Open Society Foundation detailed the CIA’s effort to outsource torture since 9/11 in excruciating detail. Known as “extraordinary rendition,” the practice concerns taking detainees to and from U.S. custody without a legal process — think of it like an off-the-books extradition — and often entailed handing detainees over to countries that practiced torture. The Open Society Foundation found that 136 people went through the post-9/11 extraordinary rendition, and 54 countries were complicit in it. The U.S. worked with Iran to take new prisoners, and sent others into Assad’s Syria for torture.

Justification to Ignore the Constitution

According to MSNBC, the undated DOJ memo is entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.” It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly. The white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel. The administration has refused to turn over to Congress or release those more detailed memos publicly, or even to overtly confirm they existence.

In the DOJ white paper, it is determined that in order for the United States of America to kill one of its own citizens, all that is needed is that “an informed, high-level official of the U.S. Government has determined that the targeted individual poses an imminent threat of violent attack against the United States,” and that capture is not feasible and of course that the laws of war are followed. For those tracking the amount of blood on the president’s hands, note that no review takes place, no due process, no jury, no anything, just death because the president (or, technically, any anonymous informed high-level official) says kill that man, woman or child. This is considered by the Department of Justice to be “a lawful act of national self-defense.”

DOJ specifically states that if the targeted individual had rights under the Fourth Amendment and the Due Process Clause, such rights would not “immunize him from a lethal operation.”

The Fourth Amendment is a now-quaint part of the U.S. Constitution that guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. The Due Process Clause is contained in the Fifth and Fourteenth Amendments to the United States Constitution. It once acted as a safeguard from arbitrary denial of life, liberty, or property by the Government. The clear intent of Due Process, appearing twice in the Constitution, is to assure Americans that the government cannot act against them outside of a judicial process, a set of laws to protect against the government having too much power.

The Department of Justice also concludes that the murder of an American Citizen under such circumstances “would not violate certain criminal provisions prohibiting the killing of U.S. nationals outside the United States; nor would it constitute the commission of a war crime or an assassination prohibited by Executive Order.”

It was found that “the realities of the conflict and the weight of the government’s interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. Citizen before using lethal force.”

The document notes that “the condition that the operational leader present an imminent threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” Instead, DOJ asserts a “broader definition of imminence.”

Neatly, to conclude their argument, the Department of Justice states that due to the unique circumstances of the conflict with terror, “there exists no appropriate judicial forum to evaluate these constitutional considerations.”

The End of the Experiment

One is left literally gasping for air, pale with anger, wondering what we have become in America. Have we stooped to the level of the Nazi Nuremberg Laws, which in precise legalese justified the Holocaust? Have we reached the point where we believe we must destroy our beautiful Constitution in order to save it?

Of what value anymore is the oath all Federal employees take, the same oath Obama took on the steps of the Capitol last month, promising to defend and uphold the Constitution? What value is that oath when with a memo he deems that that Constitution does not apply when there is killing to be done abroad. What type of nation declares war on its own citizens?

Those questions are left rhetorical for now, but this much is now true: the president of the United States has granted himself legal justification to ignore the most basic tenet of freedom– the right to live– and empowered himself to kill his own citizens without any form of due process or judicial procedure. It is an easy way for a writer to grab headlines, claiming such-and-such is the end of our rights, such as the limits imposed on habeas corpus, online spying, no-fly lists, restrictions on free speech, etc. But now we have truly approached the edge, because when you are dead, killed extra judicially by your own government, well, no other theoretical rights really matter anymore.

Abu Graib, Guantanamo, the CIA secret prisons, imprisonment without trial of Bradley Manning, those are not aberrations or exceptions– they were practice. These are indeed the darkest of days for our democratic experiment.

Barry Rubin Reports on the Middle East

Read it here: RubinReports

George W. Bush, Painter

http://althouse.blogspot.com/2013/02/on-death-of-barney-dog-george-bush.html