Ron's View

I began 2011 with a post titled Food and Law, in which I referred to e-pal Leslie’s post on her dinner with Supreme Court justice Ruth Ginsburg. Leslie had a follow-up post yesterday regarding the “perfect baguette” recipe of Ruth’s late husband Marty.

It turns out that Marty Ginsburg was an excellent cook. Leslie was able to get Marty to reveal his baguette recipe over the phone, and she wrote it down for him to verify, which he did. That recipe, as then recorded by Leslie, was kept private at his request, but it has now appeared in Chef Supreme: Martin Ginsburg, a book of Marty’s recipes assembled by other Supreme Court spouses. The book is published by the Supreme Court Historical Society and available at the Supreme Court gift shop.

Leslie has more about the Ginsburg baguettes in a post from three summers ago, where she describes them as “crunchy-on-the-outside, soft-on-the-inside … like the ones you get in France.” Indeed, she considers them “the best baguettes I have ever had outside of France.”

NPR featured the book in a piece a month ago with famed Supreme Court reporter Nina Totenberg, from whom we learn that

The idea for the cookbook, Chef Supreme: Martin Ginsburg, came from Martha-Ann Alito, wife of Justice Samuel Alito. It hit her the day after Marty Ginsburg’s memorial service in 2010.

“One of my first conversations with Marty, in the fall of 2006, was about food and nourishment, and how satisfying an expression of love that it was for him,” she recalls. “And that, in part, led to the idea that we should put the cookbook together.”

The other Supreme spouses quickly agreed. They had often teamed up with Marty Ginsburg to provide the food for the monthly spouse lunches. But none of them had any idea what a large undertaking the cookbook would be.

First, a word about Marty Ginsburg’s love affair with cooking. It began, strangely enough, when he was in the army at Fort Sill, Okla., with his new bride, the young Ruth Bader Ginsburg.

Neither of the Ginsburgs knew much about cooking then, but one of their wedding gifts was The Escoffier Cookbook, the bible of French cooking. And so Marty, a chemistry major, began at page one and worked his way through the entire volume. As he observed in a speech in 1996, there was method to his madness then and later.

“I learned very early on in our marriage that Ruth was a fairly terrible cook and, for lack of interest, unlikely to improve. This seemed to me comprehensible; my mother was a fairly terrible cook also. Out of self-preservation, I decided I had better learn to cook because Ruth, to quote her precisely, was expelled from the kitchen by her food-loving children nearly a quarter-century ago.”

[From http://schoolworkhelper.net/2010/12/the-law-and-the-covenant-moses/]

In an op-ed piece this weekend in the Washington Post, George Washington University law professor Jonathan Turley offers “10 reasons the US is no longer the land of the free.” It’s a handy list. You should read his article for the details. I’ll content myself with the list itself:

Each year at the Passover Seder, we read the list of the ten plagues God visited on Egypt to persuade Pharaoh to free the Israelites. As I read Turley’s article, I wonder why the Bush and Obama administrations have seen fit to visit these on us.

Change We Can Believe In: Indefinite Detention

It’s almost two weeks since I promised a Change You Can Believe In post in which Obama “trample[s] on civil rights by signing into law the right to detain US citizens indefinitely.” The only problem is, he waited until today to sign the military spending bill, so I had to delay my post.

As I have said in many posts, and others have said better, through his eager and unexpected continuation of Bush administration civil rights violations and his further willingness to enshrine them in law, Obama has succeeded in turning what once appeared to be the mad acts of a group of zealots into bipartisan procedure. From an ACLU press release:

President Obama signed the National Defense Authorization Act (NDAA) into law today. The statute contains a sweeping worldwide indefinite detention provision. While President Obama issued a signing statement saying he had “serious reservations” about the provisions, the statement only applies to how his administration would use the authorities granted by the NDAA, and would not affect how the law is interpreted by subsequent administrations. The White House had threatened to veto an earlier version of the NDAA, but reversed course shortly before Congress voted on the final bill.

“President Obama’s action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law,” said Anthony D. Romero, ACLU executive director. “The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield. … Any hope that the Obama administration would roll back the constitutional excesses of George Bush in the war on terror was extinguished today.”

See also a lengthy post today by Glenn Greenwald that, some ways down, gives an overview of Obama’s policies. Here’s an excerpt. (The original has many embedded links that I have not taken the time to reproduce.)

The candidate supported by progressives — President Obama — himself holds heinous views on a slew of critical issues and himself has done heinous things with the power he has been vested. He has slaughtered civilians — Muslim children by the dozens — not once or twice, but continuously in numerous nations with drones, cluster bombs and other forms of attack. He has sought to overturn a global ban on cluster bombs. He has institutionalized the power of Presidents — in secret and with no checks — to target American citizens for assassination-by-CIA, far from any battlefield. He has waged an unprecedented war against whistleblowers, the protection of which was once a liberal shibboleth. He rendered permanently irrelevant the War Powers Resolution, a crown jewel in the list of post-Vietnam liberal accomplishments, and thus enshrined the power of Presidents to wage war even in the face of a Congressional vote against it. His obsession with secrecy is so extreme that it has become darkly laughable in its manifestations, and he even worked to amend the Freedom of Information Act (another crown jewel of liberal legislative successes) when compliance became inconvenient.

He has entrenched for a generation the once-reviled, once-radical Bush/Cheney Terrorism powers of indefinite detention, military commissions, and the state secret privilege as a weapon to immunize political leaders from the rule of law. He has shielded Bush era criminals from every last form of accountability. He has vigorously prosecuted the cruel and supremely racist War on Drugs, including those parts he vowed during the campaign to relinquish — a war which devastates minority communities and encages and converts into felons huge numbers of minority youth for no good reason. He has empowered thieving bankers through the Wall Street bailout, Fed secrecy, efforts to shield mortgage defrauders from prosecution, and the appointment of an endless roster of former Goldman, Sachs executives and lobbyists. He’s brought the nation to a full-on Cold War and a covert hot war with Iran, on the brink of far greater hostilities. He has made the U.S. as subservient as ever to the destructive agenda of the right-wing Israeli government. His support for some of the Arab world’s most repressive regimes is as strong as ever.

Would I rather have seen McCain elected? No, of course not. But that’s not the point. The point is, Obama has been a surprise and a disappointment in so many policy areas, areas where it seems we are powerless to effect change. I don’t doubt for a moment that Hillary Clinton would have supported or implemented essentially the same policies. The only candidate daring to suggest alternative ways of thinking — and he has his own problems — is Ron Paul. What to make of Paul’s candidacy? (This is the starting point of Greenwald’s post.) I sure don’t see myself voting for him, and I find many of his positions disturbing. But I am thankful that at least one candidate is questioning the bipartisan consensus laid out in the passage above.

Today marks the tenth anniversary of the signing of the PATRIOT Act. The graphic above (hat tip: emptywheel), courtesy of the ACLU, is as good a representation as any of the act’s assault on privacy.

Just five months ago, President Change-We-Can-Believe-In signed a four-year extension of the act.

The provisions were due to expire at midnight Thursday [May 26] without an extension. President Obama is attending a summit in France, but the bill was signed by autopen with his authorization moments before the deadline, the White House said.

“I think it is an important tool for us to continue dealing with an ongoing terrorist threat,” Obama said Friday, after a meeting with French President Nicolas Sarkozy.

Obama’s unwillingness to turn back from the Bush-Cheney national security police state all but ensures its long-term continuation.

Change We Can Believe In: Killing US Citizens (But Don’t Ask Why)

September ended with the death of US citizen Anwar al-Awlaki by drone attack in Yemen. President Obama created a new legal precedent with the strike, claiming it was justified because al-Awlaki “had joined the enemy in wartime, shifting from propaganda to an operational role in plots devised in Yemen by Al Qaeda in the Arabian Peninsula against the United States.” (Quote from Scott Shane’s NYT article on the legal debate over the killing.) Whether becoming operational is sufficient legal basis for assassinating a US citizen is not in itself clear, though many have been happy to support this line of reasoning. It should be noted, however, that the administration was unwilling to provide evidence of al-Awlkai’s operational role.

Last week, US drones struck again, killing al-Awlaki’s son “Abdulrahman al-Awlaki, a U.S. citizen who was born in Denver in 1995, and his 17-year-old Yemeni cousin … in a U.S. military strike that left nine people dead in southeastern Yemen.” Whatever did they do to deserve this fate? No one’s talking:

One week after a U.S. military airstrike killed a 16-year-old American citizen in Yemen, no one in the Obama administration, Pentagon or Congress has taken responsibility for his death, or even publicly acknowledged that it happened.

The absence of official accountability for the demise of Abdulrahman al-Awlaki, a Denver native and the son of an al-Qaeda member, deepens the legal and ethical murkiness of the Obama administration’s campaign to kill alleged enemies of the state outside of traditional war zones.

Had Abdulrahman gone operational too? Does Obama believe he should have the right to assassinate minors without due process? Is this what it’s come to?

As Amy Davidson asked in her New Yorker blog on Tuesday:

Anwar al-Awlaki was a member of Al Qaeda in the Arabian Peninsula and wrote angry and ugly sermons for them. The Administration says that it had to kill him because he had become “operational,” but so far it has kept the evidence for that to itself.

Was the son targeted, too?

… Where does the Obama Administration see the limits of its right to kill an American citizen without a trial? … And what are the protections for an American child?

I’d sure like to hear some answers.

Change We Can Believe In: Institutionalize Bush civil liberty policies

Yes, I’ve touched on this theme before. But it’s time to circle back, thanks to George Washington University law professor Jonathan Turley’s op-ed piece in today’s LA Times. The article should be read in full. Here’s a sample:

Historically, this country has tended to correct periods of heightened police powers with a pendulum swing back toward greater individual rights. Many were questioning the extreme measures taken by the Bush administration, especially after the disclosure of abuses and illegalities. Candidate Obama capitalized on this swing and portrayed himself as the champion of civil liberties.

However, President Obama not only retained the controversial Bush policies, he expanded on them. The earliest, and most startling, move came quickly. Soon after his election, various military and political figures reported that Obama reportedly promised Bush officials in private that no one would be investigated or prosecuted for torture. In his first year, Obama made good on that promise, announcing that no CIA employee would be prosecuted for torture. Later, his administration refused to prosecute any of the Bush officials responsible for ordering or justifying the program and embraced the “just following orders” defense for other officials, the very defense rejected by the United States at the Nuremberg trials after World War II.

Obama failed to close Guantanamo Bay as promised. He continued warrantless surveillance and military tribunals that denied defendants basic rights. He asserted the right to kill U.S. citizens he views as terrorists. His administration has fought to block dozens of public-interest lawsuits challenging privacy violations and presidential abuses.

I have nothing to add to Turley’s conclusion that “the election of Barack Obama may stand as one of the single most devastating events in our history for civil liberties.”

A few days ago, I wrote about the White House’s justification for continuing the war in Libya without the Congressional authorization that the War Powers Act would appear to require. As explained in the NYT article by Charlie Savage and Mark Landler, Harold Koh, the State Department legal adviser, and Robert BAuer, the White House counsel, argued that “American forces had not been in ‘hostilities’ … They argued that United States forces are at little risk because there are no troops on the ground and Libyan forces are unable to exchange fire with them meaningfully.” (See Ted Rall’s representation of this concept above.)

On the front page of yesterday’s NYT, Charlie Savage followed up with a piece on how Bauer and Koh won Obama’s ear, and the day, despite counter-arguments by

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, [who] had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Savage goes on to explain that “Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.”

Only in the penultimate paragraph does Savage reveal the the stunning news that “Other high-level Justice lawyers were also involved in the deliberations, and Attorney General Eric H. Holder Jr. supported Ms. Krass’s view.”

President Bush listened to his OLC, but then he made sure to appoint hacks who told him whatever he wanted, most notably by re-defining torture so that whatever he wanted to do wouldn’t count. I don’t know what’s worse, Bush’s approach or Obama’s: just keep asking around until you hear what you want, then ignore the OLC and your attorney general.

The rule of law continues to wither away.

Change We Can Believe In: It’s My Party, and I’ll Bomb Who I Want To

If you’re of a certain age, you’ll get the reference. If not, well, there was this nice Jewish girl named Leslie Sue Goldstein who recorded It’s My Party under the name Lesley Gore. As she turned 17 in the spring of 1963, it became the #1 song in the country, a hit for both her and producer Quincy Jones. The words of its immortal refrain were on all our tongues that summer: “It’s my party and I’ll cry if I want to, cry if I want to, cry if I want to. You would cry too if it happened to you.”

This morning I was dumbfounded as I read online the NYT article by Charlie Savage and Mark Landler, to appear in tomorrow’s paper, in which White House explains why the fighting in Libya is not a war. This was the basis for concluding that the War Powers Act doesn’t apply, so that President Obama need not ask Congress for authorization for continued fighting in Libya.

In contending that the limited American role did not oblige the administration to ask for authorization under the War Powers Resolution, the report asserted that “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.”

[snip]

“We are acting lawfully,” said Harold H. Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with the White House counsel, Robert Bauer.

The two senior administration lawyers contended that American forces had not been in “hostilities” at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to primarily a supporting role — providing refueling and surveillance to allied warplanes, although remotely piloted drones operated by the United States periodically fire missiles, too.

They argued that United States forces are at little risk because there are no troops on the ground and Libyan forces are unable to exchange fire with them meaningfully. And they said the military mission was constrained by a United Nations Security Council resolution, which authorized air power for the purpose of defending civilians.

“We are not saying the president can take the country into war on his own,” said Mr. Koh, a former Yale Law School dean and outspoken critic of the Bush administration’s expansive theories of executive power. “We are not saying the War Powers Resolution is unconstitutional or should be scrapped or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”

If I understand this correctly, we’re not at war because even though we get to fire missiles, Libyan forces can’t fire back.

Is this a great country or what? I love the rule of law. Okay, so the president is constrained by law to get Congressional approval to fight wars. But if we want to bomb the crap out of a country, as long as we keep them at arm’s length so they can’t return fire, we’re not at war.

Sorry, Congress. You don’t matter. It’s my party, and I’ll bomb who I want to.

This is a post I started three weeks ago, in the wake of Jane Mayer’s widely discussed New Yorker article on the US Justice Department’s prosecution of Thomas Drake, the former National Security Agency employee accused of disclosing top-secret defense documents. Events have overtaken me, most notably the government’s abandonment of its overblown case and agreement to a plea bargain with Drake.

Mayer’s article is still very much to the point in its depiction of the Obama administration’s over-reach in its zeal to bring whistleblowers to their knees. It’s essential reading. For now, let me settle on making just one point, by quoting from Mayer’s article her own quote of Yale law professor Jack Balkin:

Jack Balkin, a liberal law professor at Yale, agrees that the increase in leak prosecutions is part of a larger transformation. “We are witnessing the bipartisan normalization and legitimization of a national-surveillance state,” he says. In his view, zealous leak prosecutions are consonant with other political shifts since 9/11: the emergence of a vast new security bureaucracy, in which at least two and a half million people hold confidential, secret, or top-secret clearances; huge expenditures on electronic monitoring, along with a reinterpretation of the law in order to sanction it; and corporate partnerships with the government that have transformed the counterterrorism industry into a powerful lobbying force. Obama, Balkin says, has “systematically adopted policies consistent with the second term of the Bush Administration.”

There is little more troubling about the Obama administration than its continuation of Bush’s national security state. At least in the Bush years we could see what he was doing as an aberration and anticipate that his successor would return us to the rule of law. Had McCain been elected and continued these policies, we might still view them as an aberration. But for Obama, who spoke out against these measures as a senator and campaigned against them, to not just continue them but vigorously argue for their necessity indeed enshrines them as bipartisan national policy. (See the cartoon at the top of this post for Tom Tomorrow’s take on this issue.)

Which brings us to Charlie Savage’s front-page article in today’s NYT, whose title speaks for itself: “F.B.I. Agents Get Leeway to Push Privacy Bounds.”

The Federal Bureau of Investigation is giving significant new powers to its roughly 14,000 agents, allowing them more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.

The F.B.I. soon plans to issue a new edition of its manual, called the Domestic Investigations and Operations Guide, according to an official who has worked on the draft document and several others who have been briefed on its contents. The new rules add to several measures taken over the past decade to give agents more latitude as they search for signs of criminal or terrorist activity.

[snip]

Some of the most notable changes apply to the lowest category of investigations, called an “assessment.” The category, created in December 2008, allows agents to look into people and organizations “proactively” and without firm evidence for suspecting criminal or terrorist activity.

Under current rules, agents must open such an inquiry before they can search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search such databases without making a record about their decision.

In other words, the FBI can spy on us for just about any reason, or no reason at all.

I feel safer already.

Obama signing order to close Guantánamo, January 21, 2009

[Doug Mills/The New York Times]

An Afghan prisoner at Guantánamo died yesterday, apparently by suicide. In the NYT At War blog site, Andrew Lehren writes unquestioningly today that the detainee

had worked as a courier for senior officials for Al Qaeda in Pakistan, a job similar to those who ultimately were instrumental in leading the United States military to tracking down Osama bin Laden, according to government documents.

…

The United States government, in 2009 federal court filings, portrayed him as a courier who worked with senior Qaeda officials in Pakistan and Iran, delivering correspondence and supplies. He also helped guide soldiers into Afghanistan.

Lehrer provides no substantiation of these accusations. Do we really believe whatever the government says about Guantánamo detainees? If the guy is so obviously guilty, why was he never charged with a crime? Fortunately, the Miami Herald’s Carol Rosenberg provided a little more sanity.

Inayatullah, 37, was one of the last captives brought to the controversial camps in southeast Cuba by the Bush administration. He arrived in September 2007, and was described as an Al Qaeda emir in Iran who planned and directed the group’s terror operations.

His lawyer, Miami public defender Paul Raskind, countered that the man who died was never known as Inayatullah anywhere but in Guantánamo, never had a role in Al Qaeda and was in fact named Hajji Nassim and ran a cellphone shop in Iran near the Afghan border.

Rashkind also acknowledged that his client had a history of psychological problems that the military recognized at Guantánamo. “I have no doubt it was a suicide,” he said by telephone while traveling in St. Louis.

The Afghan’s mental health problems became so profound last year that Rashkind arranged to bring a civilian psychiatrist to the base to work with the man.

“This is really a sad mental health case … starting from childhood,” he said. At Guantánamo, “they treated him pretty humanely, I’d have to say.”

Legal sources familiar with the case added that the Afghan had spent long stretches in the psychiatric ward at Guantánamo and had previous episodes where he had tried to harm himself.

[snip]

Less is known about Inayatullah than most Guantanamo captives at this stage. Publicly released Information on him, aside from the report of his death, comes from a single Sept. 12, 2007 Pentagon press release that announced his arrival at Guantanamo as the alleged confessed al Qaeda “emir,” or chief, in Zahedan, in southeastern Iran, near the Pakistan-Afghan border.

The press release alleged he “collaborated with numerous senior al Qaeda leaders” and had a personal hand in “global terrorist efforts” — notably smuggling foreign fighters between Afghanistan, Pakistan, Iran and Iraq.

He was never charged with a crime and was never known to undergo a combatant status review tribunal at Guantanamo, a procedure designed by the Pentagon to evaluate whether he met the criteria for indefinite detention as an “enemy combatant,” a standard established early in the administration of President George W. Bush. …

His attorney, Rashkind, called his case “an outlier” in the prison camp processes, partly because he was brought there so late in the camps’ history and partly because of his mental health issues. He was never designated for trial nor for indefinite detention nor release, Rashkind said.

“To me this is a human tragedy,” said Rashkind, who has defended four Guantánamo captives. “I don’t think he belonged there at all.”

Was I dreaming or did Obama issue an order when he took office to close Guantánamo in order to “restore the standards of due process and the core constitutional values that have made this country great even in the midst of war, even in dealing with terrorism.”? Let’s see. According to this NYT article on January 22, 2009, it really happened.

What a disgrace!