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Saturday, March 29, 2014

The Refusal of Democrats to Recognize that They've 'Been Had'



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The Refusal of Democrats to Recognize that They've 'Been Had'

 

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From http://www.flickr.com/photos/56981926@N00/12877989134/: Barack Obama
Barack Obama
(image by PBoGS)



I am a Democrat, but I hold "Democratic" politicians to the same standards as I do ones who are self-professedly Republicans.

Sadly, only few Democrats do: they refuse to recognize that they voted for a Republican-at-heart in "progressive" sheep's clothing, a conservative who had pretended to be a progressive in order to win the Democratic Presidential nomination. 

I learned about this closed-mindedness of liberals, by means of the reader-comments to my recent article at Huffington Post,  "Obama: 'I Don't Care About the Public's Welfare'." 

Respondents to it didn't challenge the facts that it summarized, which were damning in the view of any progressive -- and some even in the view of any non-fascist. Instead, these readers listed the good things that Obama has done as President, such as, "Rescuing the Auto Industry." Every President has done some good things. Such readers were simply refusing to believe that Obama is a liar and is at least as conservative as he is liberal. Instead, they diverted onto irrelevancies: onto the good things he has done, which have nothing to do with those bad things.

A real progressive doesn't avoid the truth, but instead faces and tries to understand the truth.

For example, the progressive magazine Mother Jones headlined on 25 August 2005,  "Bush's Biggest Achievements,"  and listed four: "Humanitarian Aid in Africa," "Tsunami Relief," "Marine Protections," and "Executive Branch Diversity." Even that man who might have been America's worst-ever President, did some excellent things.

Oddly (and admirably), The American Conservative bannered on 5 February 2009,  "Bush's Good Deed,"  and praised a different action by him, which also happened to be actually a progressive action that he had taken: "Bush's last -- it might seem his only -- good deed:  rejection of an Israeli request for overflight permission and perhaps military assistance in bombing Iran's nuclear reactor. There's been very little about this in the mainstream press -- though it's the kind of major incident that history often turns on." That's correct.

Should we assume, therefore, that Bush was a good President? Of course, that would be silly.

My article didn't merely list a few middling-bad things that President Obama has intentionally done: it described many very-bad things he's done (not things done very badly -- very bad things), and then ended the litany with: "Anyone who doubts that Obama is a liar (except when addressing banksters in private), whose actual values are often the exact opposite of his sanctimonious public statements, should read not only the IG's report, but, regarding other issues, things such as," and I then linked to six more -- each of which, likewise, entailed Obama's intentionally doing things that were exactly contrary to his publicly expressed (and always more-liberal) stated objectives.

As to the question of why Obama would have entered politics in 1996 as a "Democrat," instead of a "Republican," perhaps the reason for this is he recognized that, after Richard Nixon's "Southern Strategy," starting in the 1970s, the likelihood for any person with a dark skin-color to win the Republican Presidential nomination was clearly nil; whereas in the Democratic Party, there would be lots of voters who would actually like the idea of voting the first Black into the White House. Being a "Democrat" was thus the only path by which a young black person in 1996 could realistically hope to become the U.S. President. To an ambitious black person entering politics in 1996, being a "Democrat" instead of a "Republican" was a no-brainer choice. And Obama is clearly not a no-brainer person: he could figure this out.

But Obama is no progressive. He isn't even much of a liberal. He is an enormously gifted politician. Unfortunately, part of that gift-set is a phenomenal ability to deceive.

This isn't to say that he's purely a conservative, either. Some of his remarks, such as the famous one about which the Romney campaign headlined against him "You Didn't Build That," were obviously stated by him with an actual progressive intent.

Obama told donors on 24 November 2013,  "I'm not a particularly ideological person,"  and that statement by him was unfortunately true: he has never even thought seriously about his values, his ideology; he just accepts unquestioningly the ones that he has absorbed from the people around him, especially from the aristocrats who enabled him to receive a first-rate education. Not everything that he says is a lie.

Perhaps that will satisfy Obama-bots that he's okay, after all. Far from it.
At best, Obama is a bad President. And I say this as a progressive historian who respects, above all Presidents, the progressive Republican Abraham Lincoln, whose Party transformed into something very different and vastly more conservative practically as soon as he was murdered by an extreme conservative; and as one who respects almost as highly the progressive Democrat Franklin Delano Roosevelt, whose impact on our entire world was more beneficial than that of any other leader in all of human history (if you consider what would the world be like if Hitler had won?), but who additionally has the unquestionable black mark on his record, of having rounded up and imprisoned Americans of Japanese descent for no good reason.

An authentic progressive applies the same standards, scientific standards, empirical facts, to everything, including human relations. But it seems that many people who consider themselves to be liberal or even progressive, are actually too filled with some kind of tribal loyalty (to "Democrats," in this instance), which prevents them from being that. To the extent they do, they're being conservative.

Perhaps that's not as bad as being a Republican, but it can turn out to be worse than being a Republican if what it means is that one will vote for a conservative like Hillary Clinton to be the Democratic Presidential nominee, which will mean that the nation will "choose" a conservative President no matter what.

Our main obligation as progressives is to do everything we can to assure that one of the two Parties' Presidential nominees will be a progressive; because, if we fail to do that, then we will have failed the country.

Anyone who relies upon a third-party candidate to deliver the nation a progressive as a serious contender for President, is entertaining a fantasy, not a strategy, because the two political parties are ideologically polarized so that the Democrat will inevitably be less fascist than the Republican, and no third-party candidate will stand a chance to win unless he's a billionaire who can fund his own campaign, which won't happen. (Nader's efforts, especially to get onto the states' ballots, were funded largely by big-money Republican donors, and it gave them a Bush "win" in 2000, so that's what happens when progressives bury their heads in the sand: bad news that turns into catastrophic history.)

----------


Friday, March 21, 2014

Obama plans to outspend Reagan on Nukes


Obama plans to outspend Reagan on Nukes

Monday, March 17, 2014
 
Weapons Activities Budget
Barack Obama has outlined a nuclear weapon expansion plan that beats Ronald Reagan's 'Star Wars' debacle in both dollars and dangers.

The anti-nuclear movement spent much of the eighties resisting Ronald Reagan’s new Cold War, and his new nuclear weapons of all shapes and sizes. We pushed back against his giant ‘defense’ budgets and countered his harrowing rhetoric. We knew Star Wars was a scam, and the MX missile a danger. We grimaced at his appointments to key policy making positions, and scoffed at his insincere arms control efforts.

In the end, the tireless work of professional activists, plowshares heroes, and a handful of stalwart others who stayed in the anti-nuclear weapons movement trenches deserve some credit for preventing planetary incineration that seemed frighteningly close at the time (Gorbachev deserves some too). Although nukes were not abolished with the end of the Cold War, most of the rest of us nonetheless moved on to fight other evils, and to work on one or more better world construction projects.

Two recent events should serve to re-awaken this movement and return to this struggle. First is the situation in the Ukraine, where old Cold War Hawks have been re-animated to again advise nuclear armed leaders, East and West, to show 'strength' and beat their chests at one another.

The second call to action has received much less attention. President Obama released his FY 2015 budget on Tuesday, March 4. It asks for considerably more money (in constant dollars) for nuclear weapons maintenance, design and production than Reagan spent in 1985, the historical peak of spending on nukes: $8.608 billion dollars, not counting administrative costs (see graph below). The Los Alamos Study Group crunched the numbers for us.

Next year’s request tops this year’s by 7%. Should the President’s new Opportunity, Growth and Security Initiative (OGSI) be approved, yet $504 million more would be available for warhead spending. The OGSI is $56 billion over and above the spending agreed to in the December 2013 two-year budget (unlikely to pass given that it’s an election year, would be paid for by increased taxes on the retirement funds of the rich, and reduced spending in politically dicey areas like crop insurance).

The US currently deploys some 4650 nuclear weapons. That these are mere dangerous remnants of the Cold War, and of no use to counter contemporary security threats, was confirmed by Director of National Intelligence James Clapper’s 2014 Worldwide Threat Assessment which said not a word about Russian nuclear weapons but instead focused on cyber threats, mass atrocities, and the extreme weather events attendant to climate change. (Yeah, Clapper is the guy who lied with impunity to Congress about NSA bulk data gathering on Americans; he’s probably not lying this time).

The Congressional Budget Office reports that current nuclear complex spending plans total $335 billion through FY2023. Then, believe it or not, the Pentagon and Department of Energy plan to begin replacing current weapons systems by new ones. There’s $100 billion to design and construct twelve new missile submarines, $81 billion for new strategic bombers, tens of billions for a new long-range cruise missile, a new ICBM, and revamped command and control infrastructure. Add to this the National Nuclear Security Administration’s plans for at least $60 billion to “extend the life” of current weapons, and more than $11 billion for the Uranium Processing Facility. None of these CBO figures factored in the usual cost overruns.

For the Administration to find record funds to invest in nuclear weapons in budget under so much political and fiscal pressure reveals how far Obama’s rhetoric has drifted from his actions.

Obama's Nuclear Contradiction

Increased lucre for the nuclear weapons complex maintains Obama’s inconsistency on the Bomb. He wrote his senior thesis at Columbia on the arms race and the nuclear freeze campaign. Two months after his first inauguration, he uttered these words in Prague: “So today, I state clearly and with conviction America’s commitment to seek the peace and security of a world without nuclear weapons.”

The Pentagon’s 2010 Nuclear Posture Review promised to avoid “new military missions or... new military capabilities” for nuclear weapons (don’t laugh, you’d be surprised how imaginative those guys can be). 2011 was even better: Obama signed the New START Treaty. It limits the number of operationally deployed nuclear warheads to 1550, a 30% decrease from the previous START Treaty, signed in 2002. New START also lowered limits on the number of launch platforms — ICBMs, ballistic missile launching subs, and nuke-equipped bombers.

At the same time, his State Department refuses—under first Hillary Clinton and now John Kerry—to present the Comprehensive Test Ban Treaty to the Senate for ratification out of timidity over expected resistance (never mind that the U.S. has essentially figured out ways to circumvent the Treaty’s spirit if not letter; the CTB was once the ‘holy grail’ for arms control and disarmament advocates).
That same State Department refrains—under both Hillary Clinton and John Kerry—from getting tough with Pakistan over its years-long obstruction of United Nations-sponsored negotiations over a global ban on the stuff needed to make bombs. (Pakistan is the country building them faster than any other; how about: ‘we’ll ground the killer drones in exchange for a fissile material cut-off?’). And Obama now wants to outspend Reagan on nuclear weapons maintenance, design and production.

Winding down nuclear weapons spending, and eventually abolishing the things (for which no negotiations are underway) has been the right thing to do since the first bomb exploded in the New Mexico desert in 1945. State Department support for the coup in Ukraine and the resultant saber rattling make it as urgent as ever.


~ Steve Breyman serves as Administrator of the Environmental Protection Agency in the Ecology Branch of the Green Shadow Cabinet.

Monday, March 17, 2014

‘Most Transparent Administration Ever™’—Obama Administration Makes Mockery of Open Government




‘Most Transparent Administration Ever™’—Obama Administration Makes Mockery of Open Government

 
 
Days after President Barack Obama’s inauguration, he pledged to have his administration create an “unprecedented level of openness in government.” Then-chief of staff, Jack Lew, later contended the administration was the “most transparent administration ever.” At a rally in 2010, Obama told the public, “We have put in place the toughest ethics laws and toughest transparency rules of any administration in history.” But this slogan suggesting the Obama administration is the “most transparent” ever has been nothing but a marketing ploy, the product of an administration that Advertising Age recognized as “marketer of the year” in 2008.



 

US government photo.


The Associated Press conducted its annual review of government data related to the Freedom of Information Act. It found that the “government’s efforts to be more open about its activities last year were their worst since President Barack Obama took office.”

While the AP could not tell if the public was simply requesting more sensitive information than the previous year, the administration claimed a record number of “national security” exemptions. A record number of times the administration also withheld information and cited a “deliberative process” exemption, claiming it dealt with “decision-making behind the scenes” so could not be released.

“[T]he government more than ever censored materials it turned over or fully denied access to them, in 244,675 cases or 36 percent of all requests. On 196,034 other occasions, the government said it couldn’t find records, a person refused to pay for copies or the government determined the request to be unreasonable or improper,” according to the AP.

Plus, “Journalists and others who need information quickly to report breaking news fared worse than ever last year.”
…Blocking news organizations from urgently obtaining records about a government scandal or crisis — such as the NSA’s phone-records collection, Boston bombings, trouble with its health care website, the deadly shootings at the Washington Navy Yard or the attack on the diplomatic mission in Benghazi — can delay uncovering significant developments until after decisions are made and the public’s interest has waned…
A request AP submitted for information on “contracts with public relations companies to promote Obama’s health care law” has been pending for over an year. The AP has also been waiting for over ten months to receive emails “between the IRS and outside Democratic super PACs about Tea Party groups.”
Agencies are taking longer to respond to requests too. The AP noted, “The Pentagon reported at least two requests still pending after 10 years and the CIA was still working on at least four requests from more than eight years ago.” (But, the White House, for some reason, claimed it was responding “more quickly” to FOIA requests. AP mentioned the White House did not elaborate on how it arrived at this conclusion.)

Some of the more stunning episodes in the administration’s efforts to be the “most transparent”—which in effect is more secretive—administration in history include conduct in the midst of disclosures from former National Security Agency contractor Edward Snowden.

Organizations like the Electronic Frontier Foundation (EFF) and American Civil Liberties Union (ACLU) had been fighting the administration for the release of information that would detail secret legal interpretations of a section of the PATRIOT Act. Once Snowden began to reveal details related to what the administration had kept secret, Director for National Intelligence James Clapper had the agency put up an “IC on the Record” Tumblr where documents could be posted. The administration disingenuously made it seem like it was voluntarily posting the documents, however, after Snowden’s disclosures began, a court ordered the administration to begin declassifying documents that EFF had requested.

The Justice Department fought the release of a Foreign Intelligence Surveillance Court opinion, which underpinned the PRISM program that Snowden revealed.
This year, in January, a case brought by EFF ended with a federal appeals court in Washington, DC, ruling that the Justice Department could keep Office of Legal Counsel (OLC) opinions secret. EFF had sought the release of an opinion because it “purportedly allows the FBI to access the private call records of phone company subscribers without providing any legal process.” The New York Times reacted, “The office’s advice often serves as the final word on what the executive branch may legally do, and those who follow that advice are virtually assured that they will not face prosecution.”

Secret legal opinions have often been drafted to authorize illegal activity, such as torture, warrantless wiretapping and the killing of American citizens with drones. The Obama administration has succeeded in keeping legal opinions secret—essentially expanding a growing body of secret law (that was much growing even more vast before Snowden blew the whistle on top secret surveillance by the NSA).

However, the department did lose a lawsuit filed by Citizens for Responsibility and Ethics in Washington (CREW). A federal appeals court ruled the department had tried to pervert freedom of information law with its preferred legal interpretation that government agencies were only required to communicate a “determination” on whether they would comply within 20 working days.

By law, as the court ruling described, “A FOIA requester must exhaust administrative appeal remedies before seeking judicial redress. But if an agency does not adhere to certain statutory timelines in responding to a FOIA request, the requester is deemed by statute to have fulfilled the exhaustion requirement.” That means the requester can appeal or sue the agency for the release of documents.

The administration effectively would have created a Catch-22 that further limited citizens’ ability to challenge government when agencies refused to release information.

The AP reported in June of last year, “The nation’s top special operations commander ordered military files about the Navy SEAL raid on Osama bin Laden’s hideout to be purged from Defense Department computers and sent to the CIA, where they could be more easily shielded from ever being made public.” This clearly appears to be a circumvention of freedom of information law.

The administration also refused requests for photos of bin Laden possibly because, according to a member of SEAL Team Six who was part of the raid, “Operator after operator took turns dumping magazines-worth of ammunition into Bin Laden’s body,” and, “When all was said and done, UBL had over a hundred bullets in him, by the most conservative estimate.”

The release of White House visitor logs was fought by the Obama administration, and the administration won in an appeals court last August.
According to the National Security Archive, “Nearly half (50 out of 101) of all federal agencies have still not updated their Freedom of Information Act regulations to comply with Congress’s 2007 FOIA amendments, and even more agencies (55 of 101) have FOIA regulations that predate and ignore President Obama’s and Attorney General Holder’s 2009 guidance for a ‘presumption of disclosure.’”

The administration seems to expend resources and energy trying to develop strategies to block the release of information to the public more than it spends working to fulfill its pledge to be transparent.

It would not release GPS location tracking memos that would have showed how the Justice Department interpreted the law in the aftermath of a major Supreme Court decision. (A court ruled in favor of this secrecy last week.)

For years now, the ACLU has been fighting the government in court as it maintains it should be able to conceal information on the “targeted killings” of three US citizens: Anwar al-Awlaki, Abdulrahman al-Awlaki, his 16-year-old son, and Samir Khan.

The ACLU also has two other FOIA lawsuits the Obama administration has fought—one for the “legal and factual basis for its use of predator drones” and a lawsuit for information on a December 2009 missile strike the administration launched on al Majalah in Yemen, which killed dozens of civilians including 21 children.

As ProPublica outlined in November,  even though Obama made some kind of a promise that his administration would share more information on drones, the groups considered to be “associated forces” of al Qaeda remain classified. Whether any compensation has been paid to drone victims is unknown. Sometimes it is hard to figure out if strikes are, in fact, US drone strikes because officials will not confirm them.

The administration has largely avoided confronting government secrecy, especially the culture in Washington, which reinforces such secrecy. That has made leaks of government information even more critical to enhancing the public’s understanding (but if Obama has his way, this flow of information will be stopped entirely too).

Gannett News noted recently, “A study by researchers at Penn State University found that government denials of the public’s requests for information increased during the first three years of the Obama administration compared to the last three years of the George W. Bush administration.”

Each year the Obama administration has become progressively worse at openness in government and yet it still promotes this illusion that it has this sterling record when it comes to transparency.

In the CIA’s fight against the Senate’s torture report, the administration has sought to invoke executive privilege to an alarming extent in order to cover up abuses.

Not only is the Obama administration not the “most transparent administration ever,” it has become the inverse of the “most transparent administration ever.” It is now one of the most secretive administrations ever, outpacing Bush in his commitment to keep government actions concealed from the public.


Kevin Gosztola
Kevin Gosztola is a writer and documentary filmmaker whose blog, The Dissenter, is posted at FireDogLake.

Monday, March 10, 2014

What Became of the Leader Many Wanted Obama to Be?


  Visions  


 

Obama may now see himself to be something like a benevolent monarch — a king in a mixed constitutional system, where the duties of the crown are largely ceremonial.


Photo Credit: By United States Senate [Public domain], via Wikimedia Commons
 
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Like many days, March 3rd saw the delivery of a stern opinion by President Obama. To judge by recent developments in Ukraine, he said, Russia was putting itself “on the wrong side of history.” This might seem a surprising thing for an American president to say. The fate of Soviet Communism taught many people to be wary of invoking History as if it were one’s special friend or teammate. But Obama doubtless felt comfortable because he was quoting himself. “To those who cling to power through corruption and deceit and the silencing of dissent,” he said in his 2009 inaugural address, “know that you are on the wrong side of history, but that we will extend a hand if you are willing to unclench your fist.” In January 2009 and again in March 2014, Obama was speaking to the world as its uncrowned leader.

For some time now, observers -- a surprisingly wide range of them -- have been saying that Barack Obama seems more like a king than a president. Leave aside the fanatics who think he is a “tyrant” of unparalleled powers and malignant purpose. Notions of that sort come easily to those who look for them; they are predigested and can safely be dismissed. But the germ of a similar conclusion may be found in a perception shared by many others. Obama, it is said, takes himself to be something like a benevolent monarch -- a king in a mixed constitutional system, where the duties of the crown are largely ceremonial. He sees himself, in short, as the holder of a dignified office to whom Americans and others may feel naturally attuned.

A large portion of his experience of the presidency should have discouraged that idea. Obama’s approval ratings for several months have been hovering just above 40%. But whatever people may actually think of him, the evidence suggests that this has indeed been his vision of the presidential office -- or rather, his idea of his function as a holder of that office. It is a subtle and powerful fantasy, and it has evidently driven his demeanor and actions, as far as reality permitted, for most of his five years in office.

What could have given Obama such a strange perspective on how the American political system was meant to work? Let us not ignore one obvious and pertinent fact. He came to the race for president in 2007 with less practice in governing than any previous candidate. At Harvard Law School, Obama had been admired by his professors and liked by his fellow students with one reservation: in an institution notorious for displays of youthful pomposity, Obama stood out for the self-importance of his “interventions” in class. His singularity showed in a different light when he was elected editor of the Harvard Law Review -- the first law student ever to hold that position without having published an article in a law journal. He kept his editorial colleagues happy by insisting that the stance of the Review need not be marked by bias or partisanship. It did not have to be liberal or conservative, libertarian or statist. It could be “all of the above.”

This pattern -- the ascent to become presider-in-chief over large projects without any encumbering record of commitments -- followed Obama into a short and uneventful legal career, from which no remarkable brief has ever been cited. In an adjacent career as a professor of constitutional law, he was well liked again, though his views on the most important constitutional questions were never clear to his students. The same was true of his service as a four-term Illinois state senator, during which he cast a remarkable number of votes in the noncommittal category of “present” rather than “yea” or “nay.” Finally, the same pattern held during his service in the U.S. Senate, where, from his first days on the floor, he was observed to be restless for a kind of distinction and power normally denied to a junior senator.

Extreme caution marked all of Obama’s early actions in public life. Rare departures from this progress-without-a-trail -- such as his pledge to filibuster granting immunity to the giants of the telecommunications industry in order to expose them to possible prosecution for warrantless surveillance -- appear in retrospect wholly tactical. The law journal editor without a published article, the lawyer without a well-known case to his credit, the law professor whose learning was agreeably presented without a distinctive sense of his position on the large issues, the state senator with a minimal record of yes or no votes, and the U.S. senator who between 2005 and 2008 refrained from committing himself as the author of a single piece of significant legislation: this was the candidate who became president in January 2009.

The Man Without a Record

Many of these facts were rehearsed in the 2008 primaries by Hillary Clinton. More was said by the Republicans in the general election. Yet the accusations were thrown onto a combustible pile of so much rubbish -- so much that was violent, racist, and untrue, and spoken by persons manifestly compromised or unbalanced -- that the likely inference was tempting to ignore. One could hope that, whatever the gaps in his record, they would not matter greatly once Obama reached the presidency.

His performance in the campaign indicated that he had a coherent mind, did not appeal to the baser passions, and was a fluent synthesizer of other people’s facts and opinions. He commanded a mellow baritone whose effects he enjoyed watching only a little too much, and he addressed Americans in just the way a dignified and yet passionate president might address us. The contrast with George W. Bush could not have been sharper. And the decisiveness of that contrast was the largest false clue to the political character of Obama.

He was elected to govern when little was known about his approach to the practical business of leading people. The unexplored possibility was, of course, that little was known because there was not much to know. Of the Chicago organizers trained in Saul Alinsky’s methods of community agitation, he had been considered among the most averse to conflict. Incongruously, as Jeffrey Stout has pointed out in Blessed Are the Organized, Obama shunned “polarization” as a valuable weapon of the weak. His tendency, instead, was to begin a protest by depolarizing.  His goal was always to bring the most powerful interests to the table. This should not be dismissed as a temperamental anomaly, for temperament may matter far more in politics than the promulgation of sound opinions. The significance of his theoretical expertise and practical distaste for confrontation would emerge in the salient event of his career as an organizer.

As Obama acknowledged in a revealing chapter of his memoir, Dreams from My Father, the event in question had begun as a protest with the warmest of hopes. He was aiming to draw the attention of the Chicago housing authority to the dangers of asbestos at Altgeld Gardens, the housing project where he worked. After a false start and the usual set of evasions by a city agency, a public meeting was finally arranged at a local gymnasium. Obama gave instructions to two female tenants, charged with running the meeting, not to let the big man from the city do too much of the talking. He then retired to the back of the gym.
The women, as it turned out, lacked the necessary skill. They taunted and teased the city official. One of them dangled the microphone in front of him, snatched it away, and then repeated the trick. He walked out insulted and the meeting ended in chaos. And where was Obama? By his own account, he remained at the back of the room, waving his arms -- too far away for anyone to read his signals. In recounting the incident, he says compassionately that the women blamed themselves even though the blame was not all theirs. He does not say that another kind of organizer, seeing things go so wrong, would have stepped forward and taken charge.

“I Can’t Hear You”

“Leading from behind” was a motto coined by the Obama White House to describe the president’s posture of cooperation with NATO, when, after a long and characteristic hesitation, he took the advice of Hillary Clinton’s State Department against Robert Gates’s Defense Department and ordered the bombing of Libya. Something like that description had been formulated earlier by reporters covering his distant and self-protective negotiations with Congress in the progress of his health-care law. When the phrase got picked up and used in unexpected ways, his handlers tried to withdraw it. Leading from behind, they insisted, did not reflect the president’s real attitude or the intensity of his engagement.

In Libya, all the world knew that the planning for the intervention was largely done by Americans, and that the missiles and air cover were supplied by the United States. Obama was the leader of the nation that was bringing down yet another government in the Greater Middle East. After Afghanistan and Iraq, this marked the third such American act of leadership since 2001. Obama, however, played down his own importance at the time; his energies went into avoiding congressional demands that he explain what sort of enterprise he was leading.
By the terms of the 1973 War Powers Resolution, a president needs congressional approval before he can legally commit American armed forces in “hostilities” abroad. But according to the argument offered by Obama’s lawyers, hostilities were only hostilities if an American was killed; mere wars, on the other hand, the president can fight as he pleases -- without the approval of Congress. No American soldier having been killed in Libya, it followed that Obama could lead the country from behind without congressional approval. This delicate legal sophistry served its temporary purpose and the bombing went forward. Yet the awkward description, “leading from behind,” would not go away. These days, the phrase is mostly used as a taunt by war-brokers whose idea of a true leader runs a remarkably narrow gamut from former president George W. Bush to Senator John McCain. These people would have no trouble with Obama if only he gave us more wars.

The curious fact remains that, in Obama’s conception of the presidency, leading from behind had a concrete meaning long before the Libyan intervention. When approached before the 2008 election by labor leaders, community organizers, foreign policy dissenters, and groups concerned with minority rights and environmental protection, each of which sought assurance that he intended to assist their cause, Obama would invariably cup his ear and say, “I can’t hear you.”

The I-can't-hear-you anecdote has been conveyed both in print and informally; and it is plain that the gesture and the phrase had been rehearsed. Obama was, in fact, alluding to a gesture President Franklin Roosevelt is said to have made when the great civil rights organizer A. Philip Randolph put a similar request to him around 1940. Roosevelt, in effect, was saying to Randolph: You command a movement with influence, and there are other movements you can call on. Raise a cry so loud it can’t be mistaken. Make me do what you want me to do; I’m sympathetic to your cause, but the initiative can’t come from me.

It was clever of Obama to quote the gesture. At the same time, it was oddly irresponsible. After all, in the post-New Deal years, the union and civil rights movements had tremendous clout in America. They could make real noise. No such combination of movements existed in 2008.

And yet, in 2008 there had been a swell of popular opinion and a convergence of smaller movements around a cause. That cause was the candidacy of Barack Obama. The problem was that “Obama for America” drank up and swept away the energy of all those other causes, just as Obama’s chief strategist David Plouffe had designed it to do. Even in 2009, with the election long past, “Obama for America” (renamed “Organizing for America”) was being kept alive under the fantastical conceit that a sitting president could remain a movement leader-from-behind, even while he governed as the ecumenical voice of all Americans. If any cause could have pulled the various movements back together and incited them to action after a year of electioneering activity on Obama’s behalf, that cause would have been a massive jobs-creation program and a set of policy moves to rouse the environmental movement and address the catastrophe of climate change.

Civil Dissociation

By the middle of 2009, Barack Obama was no longer listening. He had already picked an economic team from among the Wall Street protégés of the Goldman Sachs executive and former economic adviser to the Clinton administration, Robert Rubin. For such a team, job creation and environmental regulation were scarcely attractive ideas. When the new president chose health care as the first “big thing” he looked to achieve, and announced that, for the sake of bipartisan consensus, he was leaving the details of the legislation to five committees of Congress, his “I can’t hear you” had become a transparent absurdity.

The movements had never been consulted. Yet Obama presumed an intimacy with their concerns and a reliance on their loyalty -- as if a telepathic link with them persisted. There was a ludicrous moment in the late summer of 2009 when the president, in a message to followers of "Obama for America," told us to be ready to knock on doors and light a fire under the campaign for health-care reform. But what exactly were we to say when those doors opened? The law -- still being hammered out in congressional committees in consultation with insurance lobbyists -- had not yet reached his desk. In the end, Obama did ask for help from the movements, but it was too late. He had left them hanging while he himself waited for the single Republican vote that would make his "signature law" bipartisan. That vote never came.

The proposal, the handoff to Congress, and the final synthesis of the Affordable Care Act took up an astounding proportion of Obama’s first year in office. If one looks back at the rest of those early months, they contained large promises -- the closing of Guantanamo being the earliest and the soonest to be shelved. The most seductive promise went by the generic name “transparency.” But Obama’s has turned out to be the most secretive administration since that of Richard Nixon; and in its discouragement of press freedom by the prosecution of whistleblowers, it has surpassed all of its predecessors combined.

In the absence of a performance to match his promises, how did Obama seek to define his presidency? The compensation for “I can’t hear you” turned out to be that all Americans would now have plenty of chances to hearhim. His first months in office were staged as a relaxed but careful exercise in, as was said at the time, “letting the country get to know him.” To what end? The hope seemed to be that if people could see how truly earnest, temperate, patient, thoughtful, and bipartisan Obama was, they would come to accept policies that sheer ideology or ignorance might otherwise have led them to doubt or reject.

It was magical thinking of course -- that Americans would follow if only we heard him often enough; that people of the most divergent tempers and ideas would gradually come to approve of him so visibly that he could afford to show the country that he heard the call for reform. But one can see why his presidency was infused with such magical thinking from the start. His ascent to the Oval Office had itself been magical.

To be known as the voice of the country, Obama believed, meant that he should be heard to speak on all subjects. This misconception, evident early, has never lost its hold on the Obama White House. The CBS reporter Mark Knoller crunched the first-term numbers, and some of them are staggering. Between January 2009 and January 2013 Obama visited 44 states, led 58 town hall meetings, granted 591 media interviews (including 104 on the major networks), and delivered 1,852 separate speeches, comments, or scheduled public remarks. From all those planned interactions with the American public, remarkably few conversions ever materialized.

By following the compulsion (which he mistook for a strategy) of coming to be recognized as the tribune of all the people, Obama squandered indefinite energies in pursuit of a finite opportunity. For there is an economy of gesture in politics, just as there is in sports. Show all your moves too early and there will be no surprise when the pressure is on. Talk steadily on all subjects and a necessary intensity will desert you when you need it.

In Confidence Men,the most valuable study so far of the character and performance of Obama as president, the journalist Ron Suskind noticed the tenacity of the new president’s belief that he enjoyed a special connection to the American people. When his poll numbers were going down in late 2009, or when his “pivot to jobs” had become a topic of humor because he repeated the phrase so often without ever seeming to pivot, Obama would always ask his handlers to send him out on the road.  He was convinced: the people would hear him and he would make them understand.

He sustained this free-floating confidence even though he knew that his town halls, from their arranged format to their pre-screened audiences, were as thoroughly stage-managed as any other politician’s. But Obama told Suskind in early 2011 that he had come to believe “symbols and gestures... are at least as important as the policies we put forward.”

The road trips have proved never-ending.  In 2014, a run of three or four days typically included stops at a supermarket outlet, a small factory, and a steel mill, as the president comforted the unemployed with sayings such as “America needs a raise” and repeated phrases from his State of the Union address such as “Let’s make this a year of action” and “Opportunity is who we are.”

In discussions about Obama, one occasionally hears it said -- in a mood between bewilderment and forbearance -- that we have not yet known the man. After all, he has been up against the enormous obstacle of racism, an insensate Republican party, and a legacy of bad wars. It is true that he has faced enormous obstacles. It is no less true that by postponement and indecision, by silence and by speaking on both sides, he has allowed the obstacles to grow larger. Consider his “all of the above” energy policy, which impartially embraces deep-sea drilling, wind farms, solar panels, Arctic drilling, nuclear plants, fracking for natural gas, and “clean coal.”

Obama’s practice of recessive management to the point of neglect has also thrown up obstacles entirely of his devising. He chose to entrust the execution and “rollout” of his health-care policy to the Department of Health and Human Services. That was an elective plan which he himself picked from all the alternatives. The extreme paucity of his meetings with his secretary of health and human services, Kathleen Sebelius, in the three years that elapsed between his signing of the law and the rollout of the policy makes a fair epitome of negligence. Indeed, the revelation of his lack of contact with Sebelius left an impression -- which the recent provocative actions of the State Department in Ukraine have reinforced -- that the president is not much interested in what the officials in his departments and agencies are up to.

The Preferential President

Obama entered the presidency at 47 -- an age at which people as a rule are pretty much what they are going to be.  It is a piece of mystification to suppose that we have been denied a rescue that this man, under happier circumstances, would have been well equipped to perform. There have been a few genuine shocks: on domestic issues he has proven a more complacent technocrat than anyone could have imagined -- a facet of his character that has emerged in his support for the foundation-driven testing regimen “Race to the Top,” with its reliance on outsourcing education to private firms and charter schools.  But the truth is that Obama’s convictions were never strong. He did not find this out until his convictions were tested, and they were not tested until he became president.

Perhaps the thin connection between Obama’s words and his actions does not support the use of the word “conviction” at all. Let us say instead that he mistook his preferences for convictions -- and he can still be trusted to tell us what he would prefer to do. Review the record and it will show that his first statement on a given issue generally lays out what he would prefer. Later on, he resigns himself to supporting a lesser evil, which he tells us is temporary and necessary. The creation of a category of permanent prisoners in “this war we’re in” (which he declines to call “the war on terror”) was an early and characteristic instance. Such is Obama’s belief in the power and significance of his own words that, as he judges his own case, saying the right thing is a decent second-best to doing the right thing.

More than most people, Obama has been a creature of his successive environments. He talked like Hyde Park when in Hyde Park. He talks like Citigroup when at the table with Citigroup. And in either milieu, he likes the company well enough and enjoys blending in. He has a horror of unsuccess. Hence, in part, his extraordinary aversion to the name, presence, or precedent of former president Jimmy Carter: the one politician of obvious distinction whom he has declined to consult on any matter. At some level, Obama must realize that Carter actually earned his Nobel Prize and was a hard-working leader of the country. Yet of all the living presidents, Carter is the one whom the political establishment wrote off long ago; and so it is Carter whom he must not touch.

As an adapter to the thinking of men of power, Obama was a quick study. It took him less than half a year as president to subscribe to Dick Cheney’s view on the need for the constant surveillance of all Americans. This had to be done for the sake of our own safety in a war without a visible end. The leading consideration here is that Obama, quite as much as George W. Bush, wants to be seen as having done everything possible to avoid the “next 9/11.” He cares far less about doing everything possible to uphold the Constitution (a word that seldom occurs in his speeches or writings). Nevertheless, if you ask him, he will be happy to declare his preference for a return to the state of civil liberties we enjoyed in the pre-2001 era. In the same way, he will order drone killings in secret and then give a speech in which he informs us that eventually this kind of killing must stop.

What, then, of Obama’s commitment in 2008 to make the fight against global warming a primary concern of his presidency? He has come to think American global dominance -- helped by American capital investment in foreign countries, “democracy promotion,” secret missions by Special Operations forces, and the control of cyberspace and outer space -- as the best state of things for the United States and for the world. We are, as he has told us often, the exceptional country. And time that is spent helping America to dominate the world is time that cannot be given to a cooperative venture like the fight against global warming. The Keystone XL pipeline, if it is built, will bring carbon-dense tar sands from Canada to the Gulf Coast, and probably Obama would prefer not to see the pipeline built. Yet it would be entirely in character for him to approve and justify its construction, whether in the name of temporary jobs, oil industry profits, trade relations with Canada, or all of the above.

He has already softened the appearance of surrender by a device that is in equal parts real and rhetorical. It is called the Climate Resilience Fund: a euphemism with all the Obama markings, since resilience is just another name for disaster relief. The hard judgment of posterity may be that in addressing the greatest threat of the age, Barack Obama taught America dimly, worked part time at half-measures, was silent for years at a stretch, and never tried to lead. His hope must be that his reiterated preference will count more heavily than his positive acts.

Copyright 2014 David Bromwich

© 2014 TomDispatch. All rights reserved.

View this story online at: http://www.tomdispatch.com/blog/175816/

David Bromwich, the editor of a selection of Edmund Burke's speeches, On Empire, Liberty, and Reform, has written on the Constitution and America's wars for The New York Review of Books and The Huffington Post.

Wednesday, March 5, 2014

Obama’s 2015 Budget: Waging Populist Fights in Strategic Retreat



President Obama’s 2015 Budget sets up many of the right fights with the right opponents.  Republicans who dismiss it out of hand – “most irresponsible budget yet” fumed House Speaker John Boehner – are exposed for what they are: defenders of privilege and entrenched interests against working Americans.  Yet, the good fights it sets up are waged within a continued long-term retreat.  It is like walking up an escalator headed down.

 

U.S. President Barack Obama, left, and Emily Hare, right, watch the press pool depart during a presidential visit to a classroom of 4 and 5 year olds at Powell Elementary School on March 4, 2014 in Washington, D.C. Obama later delivered remarks on the FY 2015 and also took a question on the situation in the Ukraine. (Photo by Ron Sachs-Pool/Getty Images)

Why Not Common Sense?

Obama’s budget calls for a series of sensible reforms. He’d tax multinationals to fund the rebuilding of America’s infrastructure at home, putting Americans to work on good jobs that need to be done.  He’d expand funding for research and development, establish more manufacturing innovation centers, expand work on renewable energy, while ending the billions that go in subsidies to Big Oil, the most profitable companies in recorded history. He’d save money by reducing the size of the military and winding down the war in Afghanistan. He’d boost universal pre-school for American children, paid for by hiking taxes on tobacco. He’d both lift the minimum wage and expand the earned income tax credit to lift millions more out of poverty, and to reduce taxpayer subsidies to Wal-Mart’s billionaire owners.  He would pay for the EITC expansion by closing indefensible tax dodges, like the “carried interest” tax deduction for hedge fund billionaires.  He’d protect Social Security, and continue his efforts to curb the rapacity of health care insurance companies and providers.   He calls once more for comprehensive immigration reform that would bring millions out of the shadows, aiding growth and the economy, and thereby reduce deficits.

None of these common sense reforms is likely to become law.  Republicans march in lockstep to block closing loopholes for the wealthy and multinationals, to defend subsidies to Big Oil and Big Pharma, to bloat the military while denouncing the president for refusing to offer up cuts in Social Security, Medicare, Medicaid, food stamps, child nutrition, education and more.  They oppose extending unemployment insurance to the jobless, or raising the minimum wage for the working poor.  They will rail that poverty programs trap the poor, that a hike in the minimum wage will cost jobs, that taxing multinationals and the rich will slow the economy, that global warming is a hoax and Big Oil a solution.  And they will stop the reforms, even as they reveal who they are.

House Budget Committee Chair Rep. Paul Ryan dismisses the president’s budget as “an election brochure.”  Well, it damn well better be, because no matter what the president put in it, Republicans would pronounce it D.O.A.

This budget, as the president stated, frames the choice:  ”Our budget is about choices. It’s about our values.  As a country, we’ve got to make a decision if we’re going to protect tax breaks for the wealthiest Americans, or if we’re going to make smart investments necessary to create jobs and grow our economy, and expand opportunity for every American."

The Strategic Retreat

Progressives will stand with the president on that choice, as would most Americans if they believed it.  The president picks good fights against the right enemies.  Yet over the long-term, this budget remains mired within a deeply conservative and wrong-headed set of assumptions.

 America need more public investment, not less

The president makes the case for rebuilding our infrastructure and investing in areas vital to our growth, but his long-term budget is focused on reducing deficits, not on expanding investment.  The deficit, which has already fallen faster than anytime since the post-World War II demobilization crippling the recovery, is slated to decline to less than 2% GDP over ten years.  The domestic discretionary account – everything the US spends outside the military, shared security guarantees like Social Security and Medicare and interest on the national debt – is slated to decline to levels of the economy not seen since the 1950s.

This is a guarantee that, despite the rhetoric, America’s infrastructure  — the essential sinews of its economy – will continue to age and decline, growing more decrepit and more dangerous. It accepts that America’s children will continue to go without the basics in education – from universal pre-school to affordable college. It accepts that we will continue to raise the highest percentage of children in poverty of any industrialized nation.

Corporations and the rich need to pay their fair share of taxes.

The president sensibly calls for limiting some tax breaks on the wealthy and corporations to invest in primarily in deficit reduction and some sensible reforms.  But he continues to argue that corporate tax reform should be “revenue neutral,” lowering corporate tax rates while closing loopholes.  In fact, multinationals have grown ever more adept at avoiding taxes. As Citizens for Tax Justice has shown, profitable Fortune 500 companies pay a lower tax rate at home than they do in other industrial countries.  With profits at record percentages of the economy and the richest few making off with virtually all the income growth in the society, we need progressive tax reform that raises resources to pay for the investments we need.

The U.S. Should Lead the Green Industrial Revolution, Not Just Clean Up After It

President Obama pushes for greater investment in renewable energy, greater controls on carbon, increased efficiency standards for cars, buildings and appliances.  But any real commitment to dealing with climate change, and to grabbing a lead in the green industrial revolution that is already sweeping the world has been beaten out of his budget.  His energy budget, for example, devotes $11.7 billion for nuclear security, mostly to maintain our nuclear weapons arsenal.  An additional $5.6 billion goes to clean up nuclear waste at Cold War sites across the nation.  In contrast, $2.3 billion is devoted to efficiency and renewable energy – solar, wind, geothermal and hydropower.  We’ll spend more maintaining a bloated arsenal of weapons we don’t need and won’t use than in capturing the renewable energies that will fuel the future. That means we’ll continue to pay rising costs for cleaning up after the catastrophes wrought by climate change.

 The zombie economy that exploded is back.

The president begins his budget statement, as he began his State of the Union, by boasting that "After 5 years of grit and determined effort, the United States is better positioned for the 21st Century than any other nation on Earth.”
Well, the world is in dire straits, but the reality here is different:  the American Dream is haunted by a nightmare zombie economy that has come back from the dead.

The old economy blew up in 2008, causing a global economic calamity.   The old economy was plagued by unsustainable imbalances – growing Gilded Age inequality and a declining middle class, increasing financialization and the devastation of manufacturing, unprecedented trade deficits, growing indebtedness, a decrepit infrastructure and starved public investment in vital areas, an unsustainable commitment to police the world, a purblind refusal to address increasingly destructive and costly climate changes.

President Obama managed to rescue an economy in free fall, while promising to find a new foundation for growth.  That effort clearly has stalled.  The old order stymied reforms and now revives to haunt us.  The rich capture even more of the national income.  The big banks are bigger and more consolidated than ever. The trade deficits remain over $1 billion a day.  Public investment remains starved.  The national security state continues to generate crises and consume resources and attention. Big oil even retains its subsidies. The unsustainable rise of costs in the health system have been slowed, but the system remains broken.

Kutusov, if we’re lucky

Perhaps we should see President Obama as pursuing the wily course of Russia’s famous general Kutusov, who responded to Napoleon’s bold invasion of Russia by retreating back into Mother Russia, confident that the Russian expanse, its harsh winter and the survival needs of its peasants would eventually expose Napoleon’s troops and his folly.

Perhaps, by picking the right fights, revealing the Republican extremes, pointing the right direction even while in slow retreat, the president is exposing the right, exhausting their troops, and awakening Americans to meet the challenges of the day. As fanciful as that may be, it is much more plausible than expecting this budget’s long-term direction to take us where we need to go.

Robert Borosage
Robert L. Borosage is the founder and president of the Institute for America’s Future and co-director of its sister organization, the Campaign for America’s Future.

Tuesday, March 4, 2014

Silencing Whistleblowers Obama-Style

Supreme Court Edition?

 
The Obama administration has just opened a new front in its ongoing war on whistleblowers. It’s taking its case against one man, former Transportation Security Administration (TSA) Air Marshal Robert MacLean, all the way to the Supreme Court. So hold on, because we’re going back down the rabbit hole with the Most Transparent Administration ever.


Despite all the talk by Washington insiders about how whistleblowers like Edward Snowden should work through the system rather than bring their concerns directly into the public sphere, MacLean is living proof of the hell of trying to do so. Through the Supreme Court, the Department of Justice (DOJ) wants to use MacLean’s case to further limit what kinds of information can qualify for statutory whistleblowing protections. If the DOJ gets its way, only information that the government thinks is appropriate -- a contradiction in terms when it comes to whistleblowing -- could be revealed. Such a restriction would gut the legal protections of the Whistleblower Protection Act and have a chilling effect on future acts of conscience.

Having lost its case against MacLean in the lower courts, the DOJ is seeking to win in front of the Supreme Court. If heard by the Supremes -- and there’s no guarantee of that -- this would represent that body’s first federal whistleblower case of the post-9/11 era. And if it were to rule for the government, even more information about an out-of-control executive branch will disappear under the dark umbrella of “national security.”

On the other hand, should the court rule against the government, or simply turn down the case, whistleblowers like MacLean will secure a little more protection than they’ve had so far in the Obama years. Either way, an important message will be sent at a moment when revelations of government wrongdoing have moved from the status of obscure issue to front-page news.

The issues in the MacLean case -- who is entitled to whistleblower protection, what use can be made of retroactive classification to hide previously unclassified information, how many informal classification categories the government can create bureaucratically, and what role the Constitution and the Supreme Court have in all this -- are arcane and complex. But stay with me.  Understanding the depths to which the government is willing to sink to punish one man who blew the whistle tells us the world about Washington these days and, as they say, the devil is in the details.

Robert MacLean, Whistleblower

MacLean’s case is simple -- and complicated.

Here’s the simple part: MacLean was an air marshal, flying armed aboard American aircraft as the last defense against a terror attack. In July 2003, all air marshals received a briefing about a possible hijacking plot. Soon after, the TSA, which oversees the marshals, sent an unencrypted, open-air text message to their cell phones cancelling several months of missions for cost-cutting reasons. Fearing that such cancellations in the midst of a hijacking alert might create a dangerous situation for the flying public, MacLean worked his way through the system. He first brought his concerns to his supervisor and then to the Department of Homeland Security’s inspector general.  Each responded that nothing could be done.

After hitting a dead end, and hoping that public pressure might force the TSA to change its policy, MacLean talked anonymously to a reporter who broadcast a critical story. After 11 members of Congress pitched in, the TSA reversed itself. A year later, MacLean appeared on TV in disguise to criticize agency dress and boarding policies that he felt made it easier for passengers to recognize marshals who work undercover. (On your next flight keep an eye out for the young man in khakis with a fanny pack and a large watch, often wearing a baseball cap and eyeing boarders from a first class seat.) This time the TSA recognized MacLean’s voice and discovered that he had also released the unclassified 2003 text message. He was fired in April 2006.

When MacLean contested his dismissal through internal government channels, he discovered that, months after firing him, the TSA had retroactively classified the text message he had leaked. Leaking classified documents is more than cause enough to fire a federal worker, and that might have been the end of it. MacLean, however, was no typical cubicle-dwelling federal employee. An Air Force veteran, he asserted his status as a protected whistleblower and has spent the last seven years marching through the system trying to get his job back.

How Everything in Government Became Classified

The text message MacLean leaked was retroactively classified as “security sensitive information” (SSI), a designation that had been around for years but whose usage the TSA only codified via memo in November 2003. When it comes to made-up classifications, that agency’s set of them proved to be only one of 28 known versions that now exist within the government bureaucracy. In truth, no one is sure how many varieties of pseudo-classifications even exist under those multiple policies, or how many documents they cover as there are no established reporting requirements.

By law there are officially only three levels of governmental classification: confidential, secret, and top secret. Other indicators, such as NOFORN and ORCON, seen for instance on some of the NSA documents Edward Snowden released, are called “handling instructions,” although they, too, function as unofficial categories of classification. Each of the three levels of official classification has its own formal definition and criteria for use. It is theoretically possible to question the level of classification of a document.  However much they may be ignored, there are standards for their declassification and various supervisors can also shift levels of classification as a final report, memo, or briefing takes shape. The system is designed, at least in theory and occasionally in practice, to have some modicum of accountability and reviewability.

The government’s post-9/11 desire to classify more and more information ran head on into the limits of classification as enacted by Congress. The response by various agencies was to invent a proliferation of designations like SSI that would sweep unclassified information under the umbrella of classification and confer on ever more unclassified information a (sort of) classified status. In the case of the TSA, the agency even admits on its own website that a document with an SSI stamp is unclassified, but prohibits its disclosure anyway.

Imagine the equivalent at home: you arbitrarily establish a classification called Spouse Sensitive Information that prohibits your partner from seeing the family bank statements. And if all this is starting to make no sense, then you can better understand the topsy-turvy world Robert MacLean found himself in.

MacLean Wins a Battle in Court

In 2013, after a long series of civil service and legal wrangles, the United States Court of Appeals for the Federal Circuit handed down a decision confirming the government’s right to retroactively classify information. This may make some sense -- if you squint hard enough from a Washington perspective. Imagine a piece of innocuous information already released that later takes on national security significance. A retroactive classification can’t get the toothpaste back in the tube, but bureaucratically speaking it would at least prevent more toothpaste from being squeezed out. The same ruling, of course, could also be misused to ensnare someone like MacLean who shared unclassified information.

The court also decided that, retrospective classification or not, MacLean was indeed entitled to protection under the Whistleblower Protection Act of 1989. That act generally limits its protections to “disclosures not specifically prohibited by law,” typically held to mean unclassified material. This, the court insisted, was the category MacLean fit into and so could not be fired. The court avoided the question of whether or not someone could be fired for disclosing retroactively classified information and focused on whether a made-up category like SSI was “classified” at all.

The court affirmed that laws passed by Congress creating formal classifications like "top secret" trump regulations made up by executive branch bureaucrats. In other words, as the Constitution intended, the legislative branch makes the laws and serves as a check and balance on the executive branch. Congress says what is classified and that say-so cannot be modified via an executive branch memo. One of MacLean’s lawyers hailed the court’s decision as restoring “enforceability for the Whistleblower Protection Act's public free speech rights. It ruled that only Congress has the authority to remove whistleblower rights. Agency-imposed restraints are not relevant for whistleblower protection rights.”
The ruling made it clear that the TSA had fired MacLean in retaliation for a legally protected act of whistleblowing. He should have been offered his job back the next day.

Not a Happy Ending But a Sad New Beginning

No such luck. Instead, on January 27, 2014, the Department of Justice petitioned the Supreme Court to overturn the lower court’s decision. If it has its way, the next time a troublesome whistleblower emerges, the executive need only retroactively slap a non-reviewable pseudo-classification on whatever information has been revealed and fire the employee. The department is, then, asking the Supreme Court to grant the executive branch the practical power to decide whether or not a whistleblower is entitled to legal protection. The chilling effect is obvious.

In addition, the mere fact that the DOJ is seeking to bring the case via a petition is significant. Such petitions, called writs of certiorari, or certs, ask that the Supreme Court overturn a lower court's decision. Through the cert process, the court sets its own agenda. Some 10,000 certs are submitted in a typical year. Most lack merit and are quickly set aside without comment. Typically, fewer than 100 of those 10,000 are chosen to move forward for a possibly precedent-setting decision. However, only a tiny number of all the certs filed are initiated by the government; on average, just 15 in a Supreme Court term.

It’s undoubtedly a measure of the importance the Obama administration gives to preserving secrecy above all else that it has chosen to take such an aggressive stance against MacLean -- especially given the desperately low odds of success. It will be several months before we know whether the court will hear the case.

This Is War

MacLean is simply trying to get his old air marshal job back by proving he was wrongly fired for an act of whistleblowing.  For the rest of us, however, this is about much more than where MacLean goes to work.

The Obama administration’s attacks on whistleblowers are well documented. It has charged more of them -- seven -- under the Espionage Act than all past presidencies combined. In addition, it recently pressured State Department whistleblower Stephen Kim into a guilty plea (in return for a lighter sentence) by threatening him with the full force of that act. His case was even more controversial because the FBI named Fox News’s James Rosen as a co-conspirator for receiving information from Kim as part of his job as a journalist. None of this is accidental, coincidental, or haphazard.  It’s a pattern.  And it’s meant to be.  This is war.

MacLean’s case is one more battle in that war.  By taking the extraordinary step of going to the Supreme Court, the executive branch wants, by fiat, to be able to turn an unclassified but embarrassing disclosure today into a prohibited act tomorrow, and then use that to get rid of an employee. They are, in essence, putting whistleblowers in the untenable position of having to predict the future. The intent is clearly to silence them before they speak on the theory that the easiest leak to stop is the one that never happens. A frightened, cowed workforce is likely to be one result; another -- falling into the category of unintended consequences -- might be to force more potential whistleblowers to take the Manning/Snowden path.

The case against MacLean also represents an attempt to broaden executive power in another way. At the moment, only Congress can “prohibit actions under the law,” something unique to it under the Constitution. In its case against MacLean, the Justice Department seeks to establish the right of the executive and its agencies to create their own pseudo-categories of classification that can be used to prohibit actions not otherwise prohibited by law. In other words, it wants to trump Congress. Regulation made by memo would then stand above the law in prosecuting -- or effectively persecuting -- whistleblowers. A person of conscience like MacLean could be run out of his job by a memo.

In seeking to claim more power over whistleblowers, the executive also seeks to overturn another principle of law that goes by the term ex post facto. Laws are implemented on a certain day and at a certain time. Long-held practice says that one cannot be punished later for an act that was legal when it happened. Indeed, ex post facto criminal laws are expressly forbidden by the Constitution. This prohibition was written in direct response to the injustices of British rule at a time when Parliamentary laws could indeed criminalize actions retrospectively. While some leeway exists today in the U.S. for ex post facto actions in civil cases and when it comes to sex crimes against children, the issue as it affects whistleblowers brushes heavily against the Constitution and, in a broader sense, against what is right and necessary in a democracy.

When a government is of, by, and for the people, when an educated citizenry (in Thomas Jefferson’s words) is essential to a democracy, it is imperative that we all know what the government does in our name. How else can we determine how to vote, who to support, or what to oppose? Whistleblowers play a crucial role in this process. When the government willfully seeks to conceal its actions, someone is required to step up and act with courage and selflessness.

That our current government has been willing to fight for more than seven years -- maybe all the way to the Supreme Court -- to weaken legal whistleblowing protections tells a tale of our times. That it seeks to silence whistleblowers at a moment when their disclosures are just beginning to reveal the scope of our unconstitutional national security state is cause for great concern. That the government demands whistleblowers work within the system and then seeks to modify that same system to thwart them goes beyond hypocrisy.

This is the very definition of post-Constitutional America where legality and illegality blur -- and always in the government’s favor; where the founding principles of our nation only apply when, as, and if the executive sees fit. The devil is indeed in the details.

Peter Van Buren
Peter Van Buren spent a year in Iraq as a State Department Foreign Service Officer serving as Team Leader for two Provincial Reconstruction Teams (PRTs). Now in Washington, he writes about Iraq and the Middle East at his blog, We Meant Well. His new book is We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (The American Empire Project, Metropolitan Books).