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Beyond CIA & NSA spying: Corruption

2:54 pm in Uncategorized by Shahid Buttar

Even before open war erupted last week between the CIA and Senate Intelligence Committee Chair Dianne Feinstein (D-CA), embattled NSA officials had woven tangled skeins to downplay public crimes including lying to Congress.

Portrait of Dianne Feinstein

While the CIA’s torture prompted Feinstein to begin her committee’s investigation, it was the agency’s continuing cover up that prompted her to voice her concerns on the Senate floor in a speech described by her colleague Patrick Leahy (D-VT) as the most important he had ever witnessed in his 40 year career in the Senate.

Many observers have noted the double-standard apparent in Feinstein challenging the CIA while deferring to the NSA. Few have recognized that both the NSA’s pattern of spying and then lying about it, and the CIA’s trajectory of first committing torture crimes, then spying on Congress to cover it up and then lying about the spying when caught, can be described in a single word: corruption.

CIA: spying on Congress to cover up criminal human rights violations

Senator Feinstein knows as much about the CIA’s detention & torture programs under the Bush administration — which went well beyond the acts depicted in photographs from Abu Ghraib — as anyone outside the CIA. She described them as “un-American and brutal,” and her colleague Mark Udall (D-CO) called them both “brutal and ineffective.”

Beyond their brutality, ineffectiveness as an intelligence tool, and violation of fundamental American values and foreign policy interests, the programs were also international crimes at least partly responsible for the deaths of US military servicemembers. Releasing the Senate’s authoritative, 6,000 page, $40 million report to the public is long overdue—especially for an administration that falsely champions transparency while routinely undermining it.

While the CIA’s torture prompted Feinstein to begin her committee’s investigation, it was the agency’s continuing cover up that prompted her to voice her concerns on the Senate floor in a speech described by her colleague Patrick Leahy (D-VT) as the most important he had ever witnessed in his 40 year career in the Senate.

Feinstein revealed that CIA personnel removed files from the computers used by Senate staff to conduct their investigation, and that a CIA lawyer himself complicit in human rights abuses has tried to intimidate Senate investigators by outrageously seeking their prosecution—for obtaining an internal CIA document confirming facts the Agency is trying to continue covering up.

Ultimately, the CIA’s attempt to limit what material its congressional overseers can review smacks of self-interest, and reflects a evasion of accountability for severe institutional crimes. Brennan’s confirmation by the committee last spring entitled him to lead the CIA, not to place it above the law.

NSA: Lies to Congress and the public to cover up mass surveillance

Observers from across the political spectrum have agreed that Director of National Intelligence James Clapper either misled Congress, or lied outright when asked a straightforward question by Sen. Ron Wyden (D-OR) in a March 2013 Senate hearing.

With advance notice, Clapper was asked whether the NSA collects “any type of data at all on millions…of Americans.” He answered, “No sir. Not wittingly.” In June, the Snowden revelations shocked the globe and proved that his statement was simply not true, in addition to self-serving.

Many people have gone to prison for less significant lies than that.

Responding to Clapper’s admittedly false answer to Wyden, seven Republican members of Congress wrote to the Attorney General in December seeking a Justice Department investigation into potential perjury. They correctly noted that “Congressional oversight depends on truthful testimony,” which is why “witnesses cannot be allowed to lie to Congress.”

Members of Congress from both parties, and both chambers, are not alone in calling for accountability: Citizens for Responsibility and Ethics in Washington called for an investigation nearly a year ago, followed by the Bill of Rights Defense Committee and grassroots activists and organizations from across the country.

Obama: On the sidelines while his legacy is sealed

How else might we describe demonstrably false, self-serving statements by NSA officials paid by taxpayers to perform a public service, or CIA efforts to secretly hamstring investigations into their activities by the elected officials charged to oversee them? In any country that claims to be a democracy, the most elegant answer is a single word — corruption — with crucial connotations for a contemporary debate that remains limited, even after the Snowden revelations.

As members of Congress have challenged executive agencies covering up their crimes, President Obama has absurdly attempted to evade responsibility. This maneuver, like his initial decision to “look forward, not back” on torture, is what I described then as “an illegal capitulation to illegitimate political interests carrying profound consequences for human rights and freedom both in the U.S. and around the world.”

President Obama’s evasion is the antithesis of President Truman’s reminder that “the buck stops here,” and undermines his own prior commitment to releasing at least parts of the Senate’s torture report. Coming from an administration that has accepted poorly-deserved awards for transparency in ironically appropriate secret meetings, its tacit support for executive lawlessness is a spectacular — though entirely unsurprising — failure.

This post was originally published on March 17 at the People’s Blog for the Constitution.

President Obama vs. his administration’s legacy

9:34 am in Uncategorized by Shahid Buttar

President Obama’s speech yesterday, presenting his vision of a comprehensive counter-terrorism strategy, included welcome rhetoric about the importance of constitutional principles, including Due Process and rights to dissent. It may represent the high watermark for civil liberties since his inauguration five years ago.

It is disappointing, given his thoughtful words, that he ignored so many inconvenient truths. From extrajudicial assassination to free speech and freedom of the press, from the need to address root causes of terrorism to partnership with American Muslims, the president promoted important principles but papered over reality.

The reaction by Republican senators was even worse. Senator Saxby Chambliss (R-GA) foolishly suggested that “The president’s speech today will be viewed by terrorists as a victory,” and suggested doubling down on many of the same failed Bush-era policies from which President Obama finally signaled long overdue independence yesterday.

Due Process: Gitmo

The president forcefully spoke about the need to close Guantánamo Bay, and also lifted his moratorium on releasing Yemeni detainees whom the government has cleared for release, despite the clamor among conservative lawmakers who prefer to indefinitely detain anyone accused of terror without trial.

Yet the president’s words reflected important principles that his own administration has routinely violated. Col. Morris D. Davis, the former chief military prosecutor at Guantánamo who resigned his position to challenge torture (and serves on the BORDC advisory board), agreed that “It’s great rhetoric. But now is the reality going to live up to the rhetoric?”

The president criticized restrictions on resettling detainees cleared for release imposed by Congress early in his administration. But he has the authority to resettle those detainees through a separate process, if he were willing to certify the release of particular individuals—which he has avoided in order to avoid the political risk.

Due Process: Drone strikes

President Obama also pledged more congressional oversight of drone strikes, responding to sustained controversy and reiterating a promise from his State of the Union address in January that he has yet to fill.
Noting the 2014 drawdown of US troops in Afghanistan, he also suggested the diminishing need for force protection. That, in turn, could lead to a reduction in “signature strikes,” untethered attacks in which the CIA essentially kills at random based on nothing more than suspicious activity and inflames anti-US sentiment. If nothing else, the president explained a preference to shift drone strikes from the unaccountable and secret CIA to the (also secret, though at least somewhat accountable) Pentagon.

Most importantly, the president acknowledged for the first time in public that civilian casualties—which he predictably downplayed—run the risk of creating new enemies.

On the one hand, he claimed that drone strikes are less lethal, and less prone to civilian casualties, than conventional warfare.

On the other hand, according to an independent study, only 5% of deaths from drone strikes were actually senior terror leaders, suggesting that what the press conveniently calls “targeted killings” are in fact essentially random. Signature strikes, in particular, reveal the rose tint in the president glasses: these are the antithesis of targeted killings, but rather knee-jerk assassinations based on mere suspicion. The CIA often doesn’t even know who it kills, let alone whether they are actually involved in terrorism.

Perhaps most revealing were the president’s comments about assassinating US citizens without trial. This particular subject sparked widespread controversy earlier this year, when Senator Rand Paul (R-KY) mounted a filibuster specifically to force the administration to resign the authority to kill Americans at home using drones.

Now, as then, the response is rhetorically welcome but substantively empty. Just as Attorney General Eric Holder’s letter to Sen. Paul made promises that ultimately appear implausible in light of the actual facts, President Obama’s assurances that drone strikes are closely targeted belies the competing fact that four US citizens have died in drone strikes, while only one was reportedly targeted. If the CIA has killed four times the number of US citizens than it has intended, how can we maintain the pretense that drone strikes avoid collateral casualties?

At root is a surprising willingness to redefine Due Process to exclude a right to judicial review. A canard—that the executive branch can provide Due Process without judicial review—pervades the drone program. But that view makes a mockery of over 800 years of legal precedent establishing the need for judges to check and balance executive detention orders. For a constitutional law professor to advance so revolutionary claim should disturb any observer, regardless of political perspective.

The First Amendment: freedom of the press

President Obama also reiterated his recent call for a reporter shield law to enable the press to do its job without interference from prosecutors. This suggestion lends itself to criticism on the grounds of both hypocrisy and insufficiency.

A reporter shield law is important, but the president’s speech ignored both his own administration’s attacks on the press (which he needed no legislation to have curtailed), as well as its vindictive, predatory, and authoritarian crackdown on government whistleblowers (like Thomas Drake, or Bradley Manning, or John Kiriakou) who have resigned their careers to inform the public about government abuses.

The First Amendment: rights to dissent, assembly, and speech

President Obama also recognized that the ham-fisted security measures for which he and his predecessor are both known run the risk of “alter[ing] our country in troubling ways,” before pledging a “proud commitment to civil liberties for all who call America home.”

As a seeming illustration, he allowed an extended (and quite thoughtful) interruption from the audience, noting that the opportunity for a citizen to challenge her president reflects the vitality of liberty in America.

But his rhetorical respect for dissent stands in sharp contrast with the actual actions of federal agencies. Recent investigations have documented a vicious crackdown on dissent executed by the FBI, in partnership with police agencies around the country, to violently suppress the Occupy and peace movements.

At the same time, the IRS was discriminatorily auditing conservative groups, as well as transpartisan constitutionalist groups, including the organization I lead, the Bill of Rights Defense Committee.

Letting a heckler interrupt a speech is no substitute for respecting the public’s rights to assembly, speech, and the press. Words are welcome, but they are far from enough.

Praising American Muslims while abusing us

President Obama’s comments regarding American Muslims were also welcome, but again, ignored the harsh reality on the ground.

He reiterated that the US is not at war with Islam, praised the support of American Muslims for US counterterrorism operations, and indeed, play a key role in winning the battle for hearts & minds abroad. He even reminded listeners that terrorism in America has been instigated by anti-government Christians more often than by Muslims.

Yet during the president’s tenure, the FBI has infiltrated mosques around the country, lied to communities—and courts—about it, recorded sexual encounters to enable blackmail, and bribed unsophisticated Muslims of all races into government-initiated plots in order to inflate both its own institutional reputation and the threat of domestic terrorism (while conspicuously ignoring real plots, like the Boston marathon bombings).

Restoring First Amendment rights—for the press, dissidents, and religious minorities—will require wide-ranging changes at the FBI that few in Washington have discussed.

Real counter-terrorism

Perhaps most remarkably, the president explained that “Force alone cannot make us safe,” before noting the overwhelming and untenable costs of war, and the greater opportunity to achieve lasting security by winning not just battlefields, but also hearts & minds.

But the president—like his predecessor—has long ignored many of those opportunities. On the one hand, he explained how building roads, schools, and hospitals can undermine terrorist recruitment, in sharp contrast to the torture and drone strikes that encourage it.

But giving weapons to dictators, protecting American textile manufactures through discriminatory tariffs, enabling terror networks to fund themselves through the black market opportunities created by the failed war on drugs, and destabilizing global food markets by encouraging domestic agricultural overproduction through corporate subsidies, all play an enormous roles in enabling terrorism. Yet none of these subjects are even discussed in these terms in Washington.

If his rhetoric matched reality, the president’s speech would have been world historical, repudiating a decade of lawlessness and restoring the best in America. And it was excellent, even if occasionally duplicitous. The question now is whether it was anything more than words, and whether the Administration will convert the president’s welcome rhetoric into long overdue action.

That, in turn, depends in part on whether Congress grows more assertive in asserting its checks & balances on executive power. Fortunately, we can each encourage that result.

Bipartisan Senate filibuster challenges Brennan CIA nomination

12:31 pm in Uncategorized by Shahid Buttar

Sen. Rand Paul (R-KY)
A bipartisan filibuster of John Brennan’s nomination to lead the CIA riveted Washington on Wednesday. Senators from both sides of the partisan aisle, led by Sen. Rand Paul (R-KY), took to the Senate floor to force further debate on a nomination that should not proceed.

Sen. Paul’s 12 hours of comments included a succinct and clear expression of his concerns:

I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.

Brennan’s nomination presents a rare window of accountability, and Senators are right to use it as an occasion to challenge an administration prone to self-congratulation about transparency, even while extending government secrecy and executive fiat to unprecedented levels.

How we got here

Brennan was deemed unfit to lead the CIA four years ago, because of his record at an agency whose institutional hands remain stained by human rights abuses for which it has never faced (and indeed actively obstructed) justice.

Even worse than the CIA’s human rights abuses, or its self-serving destruction of evidence of international crimes, is an expanding set of disturbing claims by executive branch officials that must be rejected for our Constitution to survive.

Attorney General Eric Holder testified about the power to kill Americans without trial before the Senate Judiciary Committee on Wednesday, after sending a related letter to Sen. Paul the day before. His letter asserted the authoritarian power to kill Americans without trial, even within the United States, followed by congressional testimony arguing that Congress’ Authorization to Use Military Force (AUMF) in Afghanistan could also justify military action within the US.

Those conclusions, put simply, render our country unfit to be considered part of the free world, let alone its leader.

In 2001, Congress enacted the AUMF to enable the invasion of Afghanistan, not authorize domestic warfare. Moreover, it has already been stretched well beyond the limits of plausible interpretation: even before President Obama came to the White House, the AUMF was cited to justify the detention of US citizens in military custody without proof of crime.

Senators from both parties had previously raised concerns about assassination without trial, which is absolutely illegal under not only the US Constitution, but even the Magna Carta. The administration’s responses to their inquiries unfortunately make matters only worse.

This week’s developments

On the one hand, Holder claims that the authority to arbitrarily kill Americans within the US could be triggered only by an extraordinary event on par with Pearl Harbor or the 9/11 attacks. On the other hand, the few legal limits that executive officials have previously acknowledged are themselves routinely violated in practice. In other words, nothing would prevent this extreme power from being used abusively.

Until this week, the battle over Brennan’s nomination had focused on disclosure: whether the Holder Justice Department (and, in particular, its Office of Legal Counsel infamous for authorizing torture under the Bush demonstration) would give Congress key documents that members have long sought to identify the legal standards under which the administration conducts drone strikes targeting American citizens.

After members of the intelligence committee (but not other senators) were allowed access to the documents, the committee approved Brennan’s nomination, sending it to the Senate floor where a bipartisan band of Senators managed yesterday to stall it, at least for the moment.

They are right to raise resistance. As Sen. Ron Wyden (D-OR) said:

Senator Paul and I agree that this nomination also provides a very important opportunity for the United States Senate to consider the government’s rules and policies on the targeted killings of Americans and that, of course, has been a central pillar of our nation’s counterterror strategy.

Especially encouraging was the reaction of other Senators to Sen. Paul’s filibuster. While he began alone, Wyden’s support rendered it a bipartisan effort, despite Wyden’s vote in committee to approve Brennan’s nomination to send it to the Senate floor.  In addition, several GOP senators eventually joined him, including Minority Leader Mitch McConnell (R-KY), Mike Lee (R-UT), Ted Cruz (R-TX), John Thune (R-SD), Ron Johnson (R-WI), Tim Scott (R-SC), and Dean Heller (R-NV).

The battle continues, with Senate Democrats continuing to seek confirmation as early as this weekend. But as the Washington Post’s Jennifer Rubin asks:

Where, for goodness’ sake, are the liberal civil libertarians? Where are the Republicans (who would filibuster Chuck Hagel, but only for show, and only briefly)? Where, for that matter, are the mainstream media and the liberal punditocracy that would be calling for impeachment about now if a Republican president had done all this?….

And so it’s come to this: Rand Paul talking all by himself on the Senate floor. On one level, it shows the power of a single senator to make a difference. On the other hand, it is a very sad statement on the intellectual collapse of both the right and the left — and most especially of the media, whose first impulse in this administration is to circle the wagons around the White House.

What Comes Next? The Future of the NDAA

10:27 am in Uncategorized by Shahid Buttar

The dead of night (image: photomequickbooth/flickr)

The dead of night (image: photomequickbooth/flickr)

This is the final part of a 3-part FAQ about the National Defense Authorization Act (NDAA) that began with Another Assault in the Dead of Night and continued with Torture Enabling Expanded Detention.

The first installment explained how the NDAA could be used as a tool for political repression, especially in concert with parallel powers expanded by the PATRIOT Act, and upheld by the Supreme Court, that apologists for the NDAA have generally ignored.

The second installment explained how our nation’s failure to pursue accountability for torture enabled the NDAA’s passage, and also portends the recurrence of torture under the domestic military detention regime the NDAA has authorized. It concluded by noting that torture could create artificial legitimacy for military detention by coercing confessions from whomever is subjected to it.

Put simply, allowing torturers to go free created the conditions to politically whitewash abuses whose predictable recurrence the NDAA will enable.  When torture recurs, it will in turn confer false legitimacy on a profoundly un-American system and undermine political will to restore limits on our government’s power, however deviously it may develop in the future.

Q: Have similar laws caused abuses elsewhere? A: Do political repression and genocide count?

Both world history and current events offer crucial insights on the potential results of authorizing detention without trial.

Those results once inspired our nation to wage a World War.  According to the U.S. National Holocaust Memorial Museum:

German authorities under National Socialism established a variety of detention facilities….In time their extensive camp system came to include concentration camps, where persons were incarcerated without observation of the standard norms applying to arrest and custody….

“[U]nofficial” killings….[were] routinely written up as “suicides,” “accidental” deaths, and “justified killings” of prisoners who were “trying to escape,” “assaulting a guard,” “sabotaging production,” or “inciting prisoners to revolt.…”

Incarceration in a concentration camp was rarely linked to a specific crime or actual subversive activity; the SS and police ordered incarceration based on their suspicion that an individual person…would likely commit a crime or engage in a subversive activity in the future. Read the rest of this entry →

The greatest casualty of 9/11: The America we knew

11:31 am in Uncategorized by Shahid Buttar

LibertyReflections on the 9/11 attacks are important and moving. But most overlook the enduring legacy of the attacks, in the form of the vastly greater damage done to American principles over the past decade. Whether in the context of surveillance, torture, or the congressional cowardice that has enabled them, our leaders have sullied the legacy of an America that once inspired the world.

Earlier this summer, when facing a crucial accountability moment for an agency that continues to abuse the rights of millions of Americans, members of Congress asked no tough questions, avoided controversy, and submitted to a White House proposal to entrench the FBI leadership—at the same time as they fought to the knuckles over issues that Congress created in the first place by spending the country into a fiscal black hole and absurdly cutting taxes in the midst of multiple wars.

Most astounding in all this is Congress’s apparent abandonment of its own institutional interests. Even in the face of documented lies by the FBI’s leadership to congressional committees and repeated proof that Congress, the press, and the public are hearing only tiny slices of the whole truth, Congress has failed to use its many tools to seek transparency and investigate executive abuses.

There was a time that America’s leaders took seriously their oaths to defend the Constitution by conducting aggressive oversight of executive agencies. A generation ago, for instance, the Church and Pike Committees investigated many of the same practices that have recurred in the past decade. The failure of their successors in Congress threatens the future of democracy in America and reflects a disturbing pattern of congressional submission to executive power.

Congress began lining up to defend executive abuses in the face of public criticism soon after the 9/11 attacks. Special registration requirements, the PATRIOT Act’s draconian surveillance powers, unprecedented authorities to arbitrarily—and indefinitely—detain individuals on the mere basis of accusation, and major revisions to the FBI Guidelines all generated little debate in Congress.

And while we might find comfort in the hope that a counter-movement would emerge, that hope is misplaced. Despite running on a platform announcing that the “choice between liberty and security” was “false,” the Obama administration has continued—and even expanded—the Bush administration’s surveillance and secrecy. And by reversing course on accountability for torture, the Obama administration affirmed that criminals with enough political connections would receive judges’ robes rather than prison terms.

Even when ordered by multiple courts to release evidence of detainee abuse, the White House refused. In fall 2009, in the midst of a year-long battle to extend healthcare to 42 million underinsured Americans, Congress took less than a week to change the law at the Obama administration’s request so that evidence of the Bush administration’s abuses would remain hidden from the public. This, after abandoning Obama’s original nominee to lead the Office of Legal Counsel at the Justice Department because she favored applying the law equally to all accused criminals, regardless of their political position.

Leave aside that hiding evidence of detainee abuse places our soldiers at risk abroad by driving the recruitment efforts of violent extremists and effectively inviting our enemies to treat our troops in the same inhumane way. Ignore the 2.3 million Americans rotting behind bars—25 percent of the world’s prisoners, in the nation that claims to lead the free world—while politically connected criminals enjoy power, prestige, and even lifetime judicial office. Forget about the sacrifices of the soldiers who gave their lives in WWII to usher in a lost era of peace, or how human rights precedents that our nation established in Nuremberg have been wrecked by our unwillingness to pursue uncomfortable truths.

Think instead about how the Freedom of Information Act (FOIA) came to be: through controversy stoked by grassroots activists who broke into an FBI office and elite critics who used their findings to spark a two-year congressional investigation documenting heinous abuses by FBI and CIA officials. The FOIA stood for 40 years, but when courts interpreted it to require the revelation of Pentagon crimes, Congress quickly joined President Obama to change the law. “Move along. Nothing to see here…”

Think about why the CIA destroyed videotapes documenting torture. And then remember the debate in the wake of Osama bin Laden’s elimination over whether to revive torture, even though the Defense Department said it was unhelpful and claimed to have ended the practice.

The American people voted in 2008 for change, including restoring constitutional protections against unchecked secret dragnet surveillance and accountability for human rights abuses. The abject failure of our government to reflect that mandate reflects how perverted our republic has grown. For a project that took two and a half centuries to build, the past decade has been catastrophic for democracy in America. When future generations look back on our failures, the attacks of a decade ago will be the least of their concerns.


Ten years ago on September 11, 2001, the United States suffered the worst terrorist attack in the nation’s history. In the panic of the weeks that followed, the American government began changing its counterterrorism policies in ways that undermined constitutionally guaranteed civil liberties, culminating in the passage of the USA PATRIOT Act on October 26, 2001. Within two weeks of that law’s passage, on November 10, 2001, organizers in Massachusetts founded the Bill of Rights Defense Committee to fight against that dangerous law and others that followed.

To mark the tenth anniversary of these pivotal events in American history and of our organization itself, the Bill of Rights Defense Committee is running a series of articles looking back on the last ten years. This post is part of that series.