More evidence of the government's assault on liberty, privacy, and the Constitution

By Michael J.W. Stickings

Reuters:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin -- not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence -- information that could reveal entrapment, mistakes or biased witnesses.

"I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers.

Because the DEA's Special Operations Division (SOD) -- which also includes the FBI, CIA, NSA, IRS, and DH -- is supposedly targeting (bad) people suspected of drug-related crimes, this will no doubt be written off by many, including the surveillance state apologists, as necessary, just like the supposedly anti-terror surveillance conducted by the NSA.


But it should be deeply worrying to anyone who cares about the Constitution and the protection of people's essential rights, including a defendent's rights in a criminal case:

"That's outrageous," said Tampa attorney James Felman, a vice chairman of the criminal justice section of the American Bar Association. "It strikes me as indefensible."

Lawrence Lustberg, a New Jersey defense lawyer, said any systematic government effort to conceal the circumstances under which cases begin "would not only be alarming but pretty blatantly unconstitutional."

Lustberg and others said the government's use of the SOD program skirts established court procedures by which judges privately examine sensitive information, such as an informant's identity or classified evidence, to determine whether the information is relevant to the defense.

"You can't game the system," said former federal prosecutor Henry E. Hockeimer Jr. "You can't create this subterfuge. These are drug crimes, not national security cases. If you don't draw the line here, where do you draw it?"

In a rights-based constitutional system like the one in the U.S., the line should be drawn as close as possible to the Bill of Rights, erring on the side of individual rights instead of enabling government authoritarianism. Yes, some of these people may indeed be criminals, but that's not the point. Even criminals have rights and deserve to have their rights protected, and of course the possibility of abuse here is immense, just as it is with the NSA's surveillance program, just as it is throughout the national security / intelligence community, which is why there need to be safeguards, rigorous oversight, and punishment of the abusers.

But don't forget that this isn't just about an accused's right to a fair trial. This is about intelligence and law enforcement agencies working collaboratively to target people and launch criminal cases based on massive government surveillance of Americans.

Which means it's about the government trampling on liberty, privacy, and the very Constitution it is meant to uphold.

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Of course, much of this has been known for a long time (though the media are now paying more attention to it, and doing some investigative work, thanks to Snowden and Greenwald and others drawing attention to what's going on).

The point, though, is that what the NSA is doing isn't just limited to the NSA, and so what is being done supposedly for national security is also being done domestically to track, and prosecute (with basic rights undermined), criminal activity generally, with the surveillance net cast widely and with the entire country, it seems, caught in it, guilty of something or not.

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Bradley Manning found guilty, while the real criminals remain free

By Michael J.W. Stickings

Following up on my post from earlier, (courageous whistleblower) Bradley Manning was indeed found guilty today, just not on the most significant, and most ridiculous, charge:

A military judge on Tuesday found Pfc. Bradley Manning not guilty of "aiding the enemy" for his release of hundreds of thousands of military and diplomatic documents to WikiLeaks for publication on the Internet, rejecting the government’s unprecedented effort to bring such a charge in a leak case.

But the judge in the court-martial, Col. Denise R. Lind, convicted Private Manning of six counts of violating the Espionage Act of 1917 and most of the other crimes he was charged with. He faces a theoretical maximum sentence of 136 years in prison, although legal experts said the actual term was likely to be much shorter.

While advocates of open government celebrated his acquittal on the most serious charge, the case still appears destined to stand as a fierce warning to any government employee who is tempted to make public vast numbers of secret documents. Private Manning's actions lifted a veil on American military and diplomatic activities around the world, and engendered a broad debate over what information should become public, how the government treats leakers, and what happens to those who see themselves as whistle-blowers. 

Okay, well, let's look at the elements of that debate:

First, according to the U.S. federal government -- which, let us not forget, is currently led by Democrat Barack Obama -- no information should become public that is in any way sensitive regarding national security (or pretty much any other area), and certainly no information that might in any way expose what the government is really up to, not least its criminal or even questionably ethical activities.

Second, the U.S. federal government treats leakers like traitors.

Third, the U.S. federal government, including the military, tortures whistleblowers and persecutes them relentlessly.

A fierce warning? Yes, I'd say so. Cross the government, expose its criminal activities, and you're done for.

Now, it's great that Manning was aquitted on the charge of "aiding the enemy," but let us not forget that the government pursued that charge right up to the end. And no doubt it will do so again, if at all possible, with the next whistleblower.

On the other hand, it's quite likely that the Obama White House is privately content with this outcome. The president has rightly been taking a lot of heat over NSA surveillance, from a combination of both left and right, and his approval numbers have been declining. Yes, the government wants Edward Snowden back to prosecute him for that leak, but a guilty verdict for Manning on a stupid, trumped-up charge like "aiding the enemy" would only have given Obama's critics -- and I'm one of them on this -- even more cause for criticism. (For this reason, it's possible that Obama is privately content to let Snowden find asylum, avoiding a high-profile trial back home.)

Now, there's no doubt that Manning will go back to jail. A presidential pardon would be most just, but that isn't happening, and the judge isn't about to let him off with a slap on the wrist (though, of course, he has already been in custody for three years, facing gross mistreatment, so that's hardly just a slap). I would hope for a fairly minimal sentence, one that would allow him to be paroled in a few years, but perhaps that's unlikely as well. In any event, let's hope for a fair sentence that recognizes that Manning did not aid the enemy and is a whistleblower who acted in the service of the American people, not a hardened criminal.

Bradley Manning, after all, was just the messenger, not the criminal. He didn't kill innocent civilians, he just helped expose the crimes.

And for that he is being punished.

But shame on the government, and shame on President Obama, just as on Bush and his crew before him, and everyone else involved in this travesty. They will not be held to account for these crimes, and therein lies the true injustice here.

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Five reasons GOP government shutdown is suicide

By Frank Moraes 

Whenever I read Ramesh Ponnuru, I wonder why it is the conservative movement can't be more like him. After all, it isn't like he is exactly reasonable. I can't usually read more than two paragraphs without being forced to sit through silly Republican talking points. For example, he never misses an opportunity to slam Obamacare as though he wouldn't be firmly on board with the program if it had been enacted by President McCain.

And last Friday, he argued that one of the reasons the recent Republican efforts (to defund Obamacare via government shutdown) will look bad is because the Republicans don't have an alternative for healthcare reform. This is just silly. As I've argued before, Obamacare was the conservative alternative to health-care reform. When they decided that it was a communist conspiracy, they left themselves with nothing. Ponnuru must know that the there is no alternative to Obamacare and thus his suggestion that the Republicans need to have one is just pure conservative propaganda.

But most of the article -- "Drop the Disastrous Plan to Defund Obamacare" -- is quite good. In it, he provided five reasons why the Republican plan to shut down the government or even default on our debt is a bad idea for the Republicans themselves:

1. Republicans are less popular than the Democrats and thus all else equal will lose partisan finger-pointing contests.
2. The executive has natural advantages over a group of legislators in a crisis atmosphere.
3. People will be naturally inclined to assume that the more anti-government party must be responsible.
4. Some Republicans will say that government shutdowns or defaults are just what the country needs, and those quotes will affect the image of all Republicans.
5. The news media will surely side with the Democrats.

I think this can all be boiled down into what I have come to think of as Biden's Law. You may remember in the vice-presidential debate that Paul Ryan was talking about the almost $600 billion taken out of Medicare. He was arguing that the Republicans were the true defenders of Medicare. Joe Biden didn't even counter the specifics; he just said, "Look, folks, use your common sense. Who do you trust on this?"


And that is why the Republicans will hurt themselves if they shut down the government. People may not be too thrilled with Obamacare, but they don't think it is so bad that the government should be shut down over it. What's more, everyone knows that the Republicans are itching to shut the government down. Only the true believers will applaud this move. In the end, people will use their common sense and decide that this is not about Obamacare at all -- it's just about the fact that the Republicans hate the government.

None of this means that the Republicans won't shut down the government and default on the debt. I think I know why conservatives are so keen on doing this -- or at least threatening to do it. In the conservative world, politics is simple. If only we sent strong willed people to Washington, all problems would be solved. (Interestingly, this is part of the authoritarian mindset.)

But that isn't the way things work when you aren't in control of the White House and Congress. So they try through force of will to get what they want. That's why the House has voted 37 times to repeal Obamacare. I heard one Republican claim that they were going to continue to vote for repeal until it happened -- as though the 37 votes would have any effect on the one vote they would take after they do have control of Washington.

The move to threaten all of government is just the next logical step for the Republicans. And it does have the advantage of being an actual strategy. It isn't just a hope and a prayer -- there is an actual mechanism by which they might win. The problem is that the very small chance they have of winning is not worth all the damage they will do to their party if they lose. As I wrote in "The Next Three Election Cycles," if the Republicans manage to destroy the world economy, they will bring on their reckoning in 2014 rather than 2018.

Ponnuru isn't the only one trying to save the Republican Party from itself. I'm just not sure what he's saying will be enough. The only argument that might stop the most radical elements of the party is to say that Obamacare will be so terrible that the people will demand its repeal once it is in effect.

The problem is that no one ever believed that argument. Republicans are saying we should repeal Obamacare right now because they know that once it is in effect people will like it. Both the extremists and the more practical members of the caucus understand that this is their last chance. The only difference between these two groups is that the practical members don't want to destroy the party for this cause. The extremists don't care; they were sent to Washington to destroy it; if it is a suicide mission, so be it. (Interestingly, destruction is also a part of the authoritarian mindset.)

(Cross-posted at Frankly Curious.)

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