Tomgram: Pratap Chatterjee, Obama's Last Chance
By Pratap Chatterjee
Posted on December 4, 2016, Printed on December 4, 2016
http://www.tomdispatch.com/blog/176217/ ;
Imagine this scenario: youve occupied an office for eight years and now
youre about to move out. You know who's going to move in and, by
reputation, hes a fellow with a minimal ability to control himself who
might conceivably be a danger to others. So heres one thing you undoubtedly
wouldnt do: leave a loaded revolver in the top desk drawer and a stash of
extra ammunition in the closet.
However -- if youll excuse the analogy -- that seems to be exactly what
President Obama and his national security team are doing when it comes to
Donald Trump.
Consider two news stories of last week. The Washington Post reported that,
in its last days, the Obama administration is intent on giving the secretive
and elite Joint Special Operations Command (JSOC) new powers to strike
globally. As Thomas Gibbons-Neff and Dan Lamothe write, JSOC will gain
expanded power to track, plan, and potentially launch attacks on terrorist
cells around the globe, a move driven by concerns [about] a dispersed
terrorist threat as Islamic State militants are driven from strongholds in
Iraq and Syria... When finalized, it will elevate JSOC from being a highly
valued strike tool used by regional military commands to leading a new
multiagency intelligence and action force. Known as the Counter-External
Operations Task Force, the group will be designed to take JSOCs targeting
model -- honed over the last 15 years of conflict -- and export it globally
to go after terrorist networks plotting attacks against the West.
Meanwhile, the New York Times reported that, in the last moments of his
second term, President Obama is expanding the legal basis for the war on
terror by formally adding the Somali group al-Shabaab to the perpetrators
of the Sept. 11, 2001 war authorization that Congress passed not long after
the 9/11 attacks. (Mind you, al-Shabaab didnt even exist in 2001.) As
Charlie Savage, Eric Schmitt, and Mark Mazzetti point out, this is a move
that will strengthen President-elect Donald J. Trumps authority to combat
thousands of Islamist fighters in the chaotic Horn of Africa nation... [and
will] shore up the legal basis for an intensifying campaign of airstrikes
and other counterterrorism operations, carried out largely in support of
African Union and Somali government forces.
Maybe we have to think of that Oval Office desk as stuffed with loaded
weaponry from all these years of wars, raids, assassination campaigns, and
the like. When Trump moves in hell find a formidable national security
apparatus at his command, one that in its capabilities has left even the
totalitarian regimes of the previous century in the shade. If only we could
say that Barack Obama had at least made a serious attempt to blunt or rein
in the powers of that state within a state, but no such luck. Instead, he's
leaving a striking (and still expanding) series of oppressive and aggressive
powers loaded and ready for action for the new president.
The irony is that even with just a few weeks left, Obama could still act in
ways that might make at least a modest difference on some of those powers.
He could, as TomDispatch regular Pratap Chatterjee makes clear today, at
least lift the all-enveloping veil of secrecy around the national security
state and let the American public know just what has been done in our name
in these years and what exactly is about to be handed over to his edgy
successor. Tom
Publish, Punish, and Pardon
Nine Things Obama Could Do Before Leaving Office to Reveal the Nature of the
National Security State
By Pratap Chatterjee
In less than seven weeks, President Barack Obama will hand over the
government to Donald Trump, including access to the White House, Air Force
One, and Camp David. Trump will also, of course, inherit the infamous
nuclear codes, as well as the latest in warfare technology, including the
Central Intelligence Agencys fleet of killer drones, the National Security
Agencys vast surveillance and data collection apparatus, and the Federal
Bureau of Investigations enormous system of undercover informants.
Before the recent election, Obama repeatedly warned that a Trump victory
could spell disaster. If somebody starts tweeting at three in the morning
because SNL [Saturday Night Live] made fun of you, you cant handle the
nuclear codes, Obama typically told a pro-Clinton rally in November.
Everything that we've done over the last eight years, he added in an
interview with MSNBC, will be reversed with a Trump presidency.
Yet, just days after Obama made those comments and Trump triumphed, the
Guardian reported that his administration was deeply involved in planning to
give Trump access not just to those nuclear codes, but also to the massive
new spying and killing system that Obama personally helped shape and lead.
Obamas failure to rein in George Bushs national security policies hands
Donald Trump a fully loaded weapon, Anthony Romero, the executive director
of the American Civil Liberties Union, observed recently. The presidents
failure to understand that these powers could not be entrusted in the hands
of any president, not even his, have now put us in a position where they are
in the hands of Donald Trump.
In many areas, it hardly matters what Barack Obama now does. In his last
moments, for example, were he to make good on his first Oval Office promise
and shut down the prison at Guantanamo Bay, Cuba, Trump could reverse that
decision with the stroke of a pen on January 20, 2017.
So, at this late date, what might a president frightened by his successor
actually do, if not to hamper Trump's ability to create global mayhem, then
at least to set the record straight before he leaves the White House?
Unfortunately, the answer is: far less than we might like, but as it
happens, there are still some powers a president has that are irreversible
by their very nature. For example, declassifying secret documents. Once such
documents have been released, no power on earth can take them back. The
president also has a virtually unlimited power of pardon. And finally, the
president can punish high-level executive branch or military officials who
abused the system, just as President Obama recalled General Stanley
McChrystal from his post in Afghanistan in 2010, and he can do so until
January 19th. Of course, Trump could rehire such individuals, but fast
action by Obama could at least put them on trial in the media, if nowhere
else.
Here, then, are nine recommendations for action by the president in his last
40 days when it comes to those three categories: publish, punish, and
pardon. Think of it as a political version of publish or perish.
Drones
1. Name innocent drone victims: Last July, the Obama administration quietly
released a statement in which it admitted that it had killed between 64 and
116 innocent people in 473 drone strikes in Libya, Pakistan, Somalia, and
Yemen between January 2009 and the end of 2015. (Never mind that the
reliable Bureau of Investigative Journalism, based in Britain, has recorded
a total closer to 800 innocent deaths from the same set of strikes.)
President Obama should immediately name those innocent people his
administration has admitted killing, while providing the dates and locations
of the incidents, where known. There is a precedent for this: on April 23,
2015, Obama apologized for the deaths in a drone strike in Pakistan of
Giovanni Lo Porto and Warren Weinstein, an Italian and an American held
captive by Al Qaeda, whom he identified by name. Why not release the names
of the rest?
Faisal bin Ali Jaber, a Yemeni engineer, has been asking for just such a
response. His brother-in-law Salem and nephew Waleed were killed by a U.S.
drone strike in 2012. Yemeni officials gave Jaber $100,000 in cash that they
swore was compensation from the U.S. government, but if so, Washington has
not acknowledged what it did. Reprieve, a British-based group that supports
drone victims, has sued President Obama to get a public apology for Jaber.
2. Make Public Any Reviews of Military Errors: When Obama apologized for the
killings of Lo Porto and Weinstein, he said that he had ordered a full
review of any mistakes made in that drone strike. We will identify the
lessons that can be learned from this tragedy and any changes that should be
made, he announced. Until January 20th, he has the power to make such
documents public and prove that lessons have actually been learned. (The
only document available on the subject to date is the $1.2 million
settlement agreement between Lo Portos parents and the U.S. embassy in Rome
published by Stefania Maurizi in the Italian newspaper LEspresso.)
There is precedent for such publication. The Pentagon released transcripts
and data from an airstrike that resulted in the killing of 23 Afghan
villagers on February 21, 2010, in Uruzgan Province after a drone crew
mistook them for Taliban militants. Documents relating to U.S. air strikes
against a Médecins Sans Frontières hospital in the Afghan city of Kunduz on
October 3, 2015, have also been released.
How many similar military investigations (known as AR 15-6 reviews) have
been conducted into accidental killings in the war on terror? According to
Airwars, another British-based organization, we know, for instance, that the
U.S. is looking into a strike that killed at least 56 civilians in Manbij,
Syria, this past July. There are guaranteed to be many more such
investigations that have never seen the light of day.
The Obama administration consistently claims that groups like Airwars and
the Bureau of Investigative Journalism do not have the full story. This
flies in the face of multiple reports from Amnesty International, Human
Rights Watch, Al-Karama, researchers at Stanford and Columbia universities,
and even the United Nations, all of whom have investigated and identified a
growing number of drone-strike deaths among those without any links to
terror or insurgent movements. If evidence to the contrary really exists,
this would be the moment for Obama to prove them wrong, rather than simply
letting more collateral damage be piled on his legacy.
3. Make Public the Administrations Criteria for Its Targeted Killings: In
July and August, under pressure from the American Civil Liberties Union
(ACLU), the Obama administration released a series of documents revealing
the procedures it uses to identify and target for assassination individuals
responsible for terrorist activities in much of the world -- and the way it
has justified such killings internally. If anything, however, those
documents (known as the presidential policy guidance, or PPG) have merely
suggested how much of the process still remains beyond public view.
Frustratingly, too much remains secret about the program, including where
the PPG actually applies, what its general standards mean in practice, and
how evidence that those standards have been met is evaluated -- in addition
to who the government is killing, and where, writes Brett Max Kaufman, an
ACLU staff attorney.
When Donald Trump first sends out a CIA drone to kill someone chosen by his
White House, he will be able to claim that he is doing so under the secret
system set up by Obama. Without access to the procedures that Obama
pioneered, we will have no way of knowing whether Trump will be telling the
truth.
None of these three suggestions would be difficult or even controversial
(though dont hold your breath waiting for them to happen). With each,
Obama could increase transparency before he inevitably hands over control of
the targeted-killing program to Trump. None of this would even faze a future
Trump administration, however. So here are a few suggestions of things that
might matter for all of us if Obama did them before Trump enters the Oval
Office.
Surveillance
4. Disclose Mass Surveillance Programs: Even though Senator Obama opposed
the collection of data from U.S. citizens, President Obama has vigorously
defended the staggering expansion of the national security state during his
two terms in office. "You can't have 100% security and also then have 100%
privacy and zero inconvenience," he said in 2013, days after Edward Snowden
leaked a trove of National Security Agency data that transformed our view of
what our government has collected about all of us. "You know, we're going to
have to make some choices as a society."
Thanks to Snowden, we also now know that the U.S. government secretly
received permission from the Foreign Intelligence Surveillance Court to
collect all U.S. telephone metadata via programs like Stellarwind; created a
program called Prism to tunnel directly into the servers of nine major
Internet companies; tapped the global fiber optic cables that lie on the
ocean beds; collected text messages via a program called Dishfire; set up a
vast database called X-Keyscore to track all the data from any given
individual; and even built a program, Optic Nerve, to turn on users
webcams, allowing for the collection of substantial quantities of sexually
explicit communications. And thats just the tip of the iceberg. (For a
searchable index of all such revelations so far, click here.)
Ironically, a report from the FBI that was finally published in April 2015
shows that this vast effort was largely useless in identifying terrorists.
In 2004, the FBI looked at a sampling of all the [Stellarwind] tips to see
how many had made a significant contribution to identifying a terrorist,
deporting a terrorism suspect, or developing a confidential informant about
terrorists, wrote New York Times reporter Charlie Savage who spent years
fighting for access to the documents. Just 1.2 percent of the tips from
2001 to 2004 had made such a contribution. Two years later, the FBI reviewed
all the leads from the warrantless wiretapping part of Stellarwind between
August 2004 and January 2006. None had proved useful.
These days smart criminals and terrorists use encryption or other means like
burner phones to make sure that they cant be followed. The only senior
operatives being hacked these days seem to be Democratic Party officials
like John Podesta and millions of ordinary citizens whose data is stolen by
criminals. So why not reveal just what programs the government used in these
years, what was done with them, why it failed, and what lessons were (or
werent) learned? Evidence of the national security states massive waste of
time and resources might indeed be useful for us to have as we think about
how to improve our less than 100% privacy and security. Such disclosures
would not imperil the governments ability to seek warrants to lawfully
intercept information from those suspected of criminal wrongdoing or
terrorism.
5. Make Public All Surveillance Agreements With Private Companies: To this
day, the U.S. government has secret agreements with a variety of data
companies to trawl for information. Some companies are deeply uneasy about
this invasion of their customers privacy, if only because it probably
violates the terms of service they have agreed to and could cause them to
lose business (given that they face competition from non-U.S. companies and
more secure alternatives).
Take Yahoo, for example. The Justice Department obtained a court order in
2015 to search all users incoming emails for a unique computer code
supposedly tied to the communications of a state-sponsored terrorist
organization. The company has requested that the government declassify the
order to clear its name. It has yet to do so.
Of course, not all companies are as eager to see their government deals
revealed. Consider AT&T, the telecommunications giant. Police departments
across the country pay it as much as $100,000 a year for special access to
the telephone records of its clients (without first obtaining a warrant).
The program is called Hemisphere and the company requires buyers to keep
its existence secret.
The Electronic Frontier Foundation, a San Francisco-based activist group,
calls this evidence laundering. As Adam Schwartz, senior staff attorney on
the Electronic Frontier Foundation's civil liberties team, puts it: "When
police hide their sources of evidence, the accused cannot challenge the
quality or veracity of the governments investigation, or seek out favorable
information still in the governments possession. Moreover, hiding evidence
from individuals who are prosecuted as a result of such surveillance is
antithetical to our fundamental right to an open criminal justice system."
Surely such an argument ought to convince a former law professor? President
Obama could easily strike a major blow for fair trials by revealing the
extent and the details of these local police contracts, which are
essentially an open secret, as well as any other agreements the national
security state has with private companies to spy on ordinary citizens. Once
again, this would not hamper the governments ability to seek warrants when
it can convince a judge that it needs to intercept individual
communications.
6. Make Public All Secret Law Created in Recent Years: The last thing wed
want would be for Donald Trump and his future White House adviser, white
nationalist Steve Bannon, to enter the Oval Office and start making secret
law by wielding executive powers to, say, round up Muslims or deny women
their rights.
Stopping Trump from taking this route and creating his own body of secret
law is going to be hard indeed, given that Obama has probably signed more
secret orders than any previous president. As Elizabeth Goitein, the
co-director of the Brennan Centers Liberty and National Security Program,
noted in a recent report, the Obama administration has failed to release a
minimum of 74 of the Justice Departments Office of Legal Counsel opinions
and memos that have been the secret basis for government actions on national
security issues -- including detention, interrogation, intelligence
activities, intelligence-sharing, and responses to terrorism. In addition,
as many as 30 rulings of the Foreign Intelligence Surveillance Court between
2003 and 2013 have not been made public. And an astonishing 807
international agreements, including bilateral ones to control the
transportation of narcotics, signed by the U.S. between 2004 and 2014 have
never seen the light of day.
Trump, of course, has refused even to publish his tax returns (previously a
presidential campaign ritual), so if Obama doesnt come clean, dont expect
Trump to release any of the secret law his predecessor made in the next four
years. This moment, then, represents a unique opportunity for the president
to fulfill his promise of 2009 to create the most open presidency of all
time. Sadly, no one expects him to do so. The Obama administration has
apparently abandoned even the appearance of transparency, according to
Anne Weisman, executive director of Citizens for Responsibility and Ethics
in Washington, a nonpartisan NGO that tracks government accountability.
Since its very unlikely that Obama will reverse course on surveillance and
secret law in the next 40 days, here at least are some suggestions on what
he might still accomplish as the nations chief law enforcer.
Punish
7. Punish Anyone Who Abused the Drone or Surveillance Programs: We dont
really know who ordered the drone strikes that knocked off so many innocent
people. But the names of the architects of the program are known and, more
importantly, the president undoubtedly has all the names he needs.
And if Obama does want to clean house before Trump takes over, why not
identify and dismiss the individuals who designed the NSAs surveillance
programs that infringed in major ways on our privacy without uncovering any
terrorists?
8. Punish Those Responsible for FBI Domain Management Abuses: Since the
attacks of September 11, 2001, the FBI has developed a network of more than
15,000 informants as part of its Domain Management program. Many of them
were recruited to infiltrate Muslim communities to identify terrorists. For
the last 15 years, this vast sting program has been used to round-up Muslims
-- those dumb enough to fall for FBI enticements at least -- and put them in
prison.
In the process, plenty of terror operations were created, but few real
ones broken. We already know the details of many of the abuses involved.
Back in 2011, for instance, a Mother Jones investigation found that 49
successful prosecutions of terrorists were the result of sting
operations set up by FBI agents provocateurs. You realize that many of
these people would never have committed a crime if not for law enforcement
encouraging, pressuring, and sometimes paying them to commit terrorist
acts, Andrea Prasow of Human Rights Watch wrote in a report on the program
in 2014.
Whistleblowers have come forward to expose the abusive tactics employed by
the FBI in such cases. Take Craig Monteilh, an ex-convict hired by the
Bureau to infiltrate mosques in southern California. After he had a change
of heart, Monteilh helped local Muslims sue the agency. The case was, in the
end, reluctantly dismissed by District Judge Cormac Carney who wrote that
"the state secrets privilege may unfortunately mean the sacrifice of
individual liberties for the sake of national security." Other informants,
like Saeed Torres, have since come forward to expose other aspects of the
program. The government has never acknowledged any of this.
It is very likely that this same group will be called upon to support Donald
Trumps orders if a Muslim registry is ever set up. So this would be the
moment for Obama to crack down in some fashion on this hapless system of
profiling and entrapment before the Trump administration can expand it.
Pardon
9. Pardon Edward Snowden, Chelsea Manning, and the other whistleblowers:
Last but not least, why not pardon Edward Snowden, Chelsea Manning, and the
other whistleblowers who served the public good by letting us know what the
president wouldnt? As of now, Barack Obama will go down in history as the
president who prosecuted more truth-tellers, often under the draconian World
War I-era Espionage Act, than all other presidents combined. Stephen Kim,
Jeffrey Sterling, John Kiriakou, and Thomas Drake were government officials
who talked with journalists. They were subsequently jailed or had their
lives turned upside down. Others like Chelsea Manning and Barrett Brown have
been jailed for hacking or for the release of documents relating to
surveillance, U.S. wars abroad, and other national security matters.
Gabe Rottman of the ACLU sums the situation up this way: By my count, the
Obama administration has secured 526 months of prison time for national
security leakers, versus only 24 months total jail time for everyone else
[who ever leaked] since the American Revolution.
On this issue, Obama has already made his position clear enough. Of Snowden,
in particular, he told Der Spiegel earlier this month, I can't pardon
somebody who hasn't gone before a court and presented themselves.
For a constitutional law professor, thats a terrible argument. The power
of pardon conferred by the Constitution upon the President is unlimited
except in cases of impeachment, the Supreme Court ruled in 1866. It
extends to every offence known to the law, and may be exercised at any time
after its commission, either before legal proceedings are taken or during
their pendency, or after conviction and judgment. The power is not subject
to legislative control.
It also flies in the face of history and of the presidents own actions.
Richard Nixon hadnt even been indicted when Gerald Ford issued a full,
free, and absolute pardon unto Richard Nixon, comments the Pardon Snowden
campaign. Nor had the thousands of men who had evaded the Vietnam War
draft, who were pardoned unconditionally by Jimmy Carter on his first day in
office. President Obama himself pardoned three Iranian American men earlier
this year in the framework of the nuclear deal with Iran. Like Snowden, the
three had been indicted but hadnt stood trial when they were pardoned.
Given how rarely Obama has issued presidential pardons, it seems unlikely
that he will act. Hes pardoned fewer people than any president since James
Garfield, who was fatally shot in 1881 after less than three months in
office, writes Steven Nelson at U.S. News & World Report. Indeed, Bush
pardoned twice as many people as Obama in his first seven years in office, a
record that he might want to ameliorate. (In fairness, it should be noted
that Obama has set a record for commuting jail sentences.)
Will Obama act on any of these nine recommendations? Or will he simply hand
over the vast, increasingly secretive national security state that he helped
build to a man whom he once declared to be unfit not just for the
presidency but even for a job at a retail store. The guy says stuff nobody
would find tolerable if they were applying for a job at 7-Eleven, Obama
told an election rally in October.
Now, its his move. Forget about 7-Eleven; Obama will not have to apply for,
or campaign for, his next well-paid job, whatever it may be. But there is
the little matter of his legacy, of truth, and oh, yes, of the future
security of the country.
Pratap Chatterjee, a TomDispatch regular, is executive director of
CorpWatch. He is the author of Halliburton's Army: How A Well-Connected
Texas Oil Company Revolutionized the Way America Makes War. His next book,
Verax, a graphic novel about whistleblowers and mass surveillance
co-authored with Khalil Bendib, will be published by Metropolitan Books in
2017.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest
Dispatch Book, Nick Turses Next Time Theyll Come to Count the Dead, and
Tom Engelhardt's latest book, Shadow Government: Surveillance, Secret Wars,
and a Global Security State in a Single-Superpower World.
Copyright 2016 Pratap Chatterjee
© 2016 TomDispatch. All rights reserved.
View this story online at: http://www.tomdispatch.com/blog/176217
Tomgram: Pratap Chatterjee, Obama's Last Chance
By Pratap Chatterjee
Posted on December 4, 2016, Printed on December 4, 2016
http://www.tomdispatch.com/blog/176217/ ;
Imagine this scenario: youve occupied an office for eight years and now
youre about to move out. You know who's going to move in and, by
reputation, hes a fellow with a minimal ability to control himself who
might conceivably be a danger to others. So heres one thing you undoubtedly
wouldnt do: leave a loaded revolver in the top desk drawer and a stash of
extra ammunition in the closet.
However -- if youll excuse the analogy -- that seems to be exactly what
President Obama and his national security team are doing when it comes to
Donald Trump.
Consider two news stories of last week. The Washington Post reported that,
in its last days, the Obama administration is intent on giving the secretive
and elite Joint Special Operations Command (JSOC) new powers to strike
globally. As Thomas Gibbons-Neff and Dan Lamothe write, JSOC will gain
expanded power to track, plan, and potentially launch attacks on terrorist
cells around the globe, a move driven by concerns [about] a dispersed
terrorist threat as Islamic State militants are driven from strongholds in
Iraq and Syria... When finalized, it will elevate JSOC from being a highly
valued strike tool used by regional military commands to leading a new
multiagency intelligence and action force. Known as the Counter-External
Operations Task Force, the group will be designed to take JSOCs targeting
model -- honed over the last 15 years of conflict -- and export it globally
to go after terrorist networks plotting attacks against the West.
Meanwhile, the New York Times reported that, in the last moments of his
second term, President Obama is expanding the legal basis for the war on
terror by formally adding the Somali group al-Shabaab to the perpetrators
of the Sept. 11, 2001 war authorization that Congress passed not long after
the 9/11 attacks. (Mind you, al-Shabaab didnt even exist in 2001.) As
Charlie Savage, Eric Schmitt, and Mark Mazzetti point out, this is a move
that will strengthen President-elect Donald J. Trumps authority to combat
thousands of Islamist fighters in the chaotic Horn of Africa nation... [and
will] shore up the legal basis for an intensifying campaign of airstrikes
and other counterterrorism operations, carried out largely in support of
African Union and Somali government forces.
Maybe we have to think of that Oval Office desk as stuffed with loaded
weaponry from all these years of wars, raids, assassination campaigns, and
the like. When Trump moves in hell find a formidable national security
apparatus at his command, one that in its capabilities has left even the
totalitarian regimes of the previous century in the shade. If only we could
say that Barack Obama had at least made a serious attempt to blunt or rein
in the powers of that state within a state, but no such luck. Instead, he's
leaving a striking (and still expanding) series of oppressive and aggressive
powers loaded and ready for action for the new president.
The irony is that even with just a few weeks left, Obama could still act in
ways that might make at least a modest difference on some of those powers.
He could, as TomDispatch regular Pratap Chatterjee makes clear today, at
least lift the all-enveloping veil of secrecy around the national security
state and let the American public know just what has been done in our name
in these years and what exactly is about to be handed over to his edgy
successor. Tom
Publish, Punish, and Pardon
Nine Things Obama Could Do Before Leaving Office to Reveal the Nature of the
National Security State
By Pratap Chatterjee
In less than seven weeks, President Barack Obama will hand over the
government to Donald Trump, including access to the White House, Air Force
One, and Camp David. Trump will also, of course, inherit the infamous
nuclear codes, as well as the latest in warfare technology, including the
Central Intelligence Agencys fleet of killer drones, the National Security
Agencys vast surveillance and data collection apparatus, and the Federal
Bureau of Investigations enormous system of undercover informants.
Before the recent election, Obama repeatedly warned that a Trump victory
could spell disaster. If somebody starts tweeting at three in the morning
because SNL [Saturday Night Live] made fun of you, you cant handle the
nuclear codes, Obama typically told a pro-Clinton rally in November.
Everything that we've done over the last eight years, he added in an
interview with MSNBC, will be reversed with a Trump presidency.
Yet, just days after Obama made those comments and Trump triumphed, the
Guardian reported that his administration was deeply involved in planning to
give Trump access not just to those nuclear codes, but also to the massive
new spying and killing system that Obama personally helped shape and lead.
Obamas failure to rein in George Bushs national security policies hands
Donald Trump a fully loaded weapon, Anthony Romero, the executive director
of the American Civil Liberties Union, observed recently. The presidents
failure to understand that these powers could not be entrusted in the hands
of any president, not even his, have now put us in a position where they are
in the hands of Donald Trump.
In many areas, it hardly matters what Barack Obama now does. In his last
moments, for example, were he to make good on his first Oval Office promise
and shut down the prison at Guantanamo Bay, Cuba, Trump could reverse that
decision with the stroke of a pen on January 20, 2017.
So, at this late date, what might a president frightened by his successor
actually do, if not to hamper Trump's ability to create global mayhem, then
at least to set the record straight before he leaves the White House?
Unfortunately, the answer is: far less than we might like, but as it
happens, there are still some powers a president has that are irreversible
by their very nature. For example, declassifying secret documents. Once such
documents have been released, no power on earth can take them back. The
president also has a virtually unlimited power of pardon. And finally, the
president can punish high-level executive branch or military officials who
abused the system, just as President Obama recalled General Stanley
McChrystal from his post in Afghanistan in 2010, and he can do so until
January 19th. Of course, Trump could rehire such individuals, but fast
action by Obama could at least put them on trial in the media, if nowhere
else.
Here, then, are nine recommendations for action by the president in his last
40 days when it comes to those three categories: publish, punish, and
pardon. Think of it as a political version of publish or perish.
Drones
1. Name innocent drone victims: Last July, the Obama administration quietly
released a statement in which it admitted that it had killed between 64 and
116 innocent people in 473 drone strikes in Libya, Pakistan, Somalia, and
Yemen between January 2009 and the end of 2015. (Never mind that the
reliable Bureau of Investigative Journalism, based in Britain, has recorded
a total closer to 800 innocent deaths from the same set of strikes.)
President Obama should immediately name those innocent people his
administration has admitted killing, while providing the dates and locations
of the incidents, where known. There is a precedent for this: on April 23,
2015, Obama apologized for the deaths in a drone strike in Pakistan of
Giovanni Lo Porto and Warren Weinstein, an Italian and an American held
captive by Al Qaeda, whom he identified by name. Why not release the names
of the rest?
Faisal bin Ali Jaber, a Yemeni engineer, has been asking for just such a
response. His brother-in-law Salem and nephew Waleed were killed by a U.S.
drone strike in 2012. Yemeni officials gave Jaber $100,000 in cash that they
swore was compensation from the U.S. government, but if so, Washington has
not acknowledged what it did. Reprieve, a British-based group that supports
drone victims, has sued President Obama to get a public apology for Jaber.
2. Make Public Any Reviews of Military Errors: When Obama apologized for the
killings of Lo Porto and Weinstein, he said that he had ordered a full
review of any mistakes made in that drone strike. We will identify the
lessons that can be learned from this tragedy and any changes that should be
made, he announced. Until January 20th, he has the power to make such
documents public and prove that lessons have actually been learned. (The
only document available on the subject to date is the $1.2 million
settlement agreement between Lo Portos parents and the U.S. embassy in Rome
published by Stefania Maurizi in the Italian newspaper LEspresso.)
There is precedent for such publication. The Pentagon released transcripts
and data from an airstrike that resulted in the killing of 23 Afghan
villagers on February 21, 2010, in Uruzgan Province after a drone crew
mistook them for Taliban militants. Documents relating to U.S. air strikes
against a Médecins Sans Frontières hospital in the Afghan city of Kunduz on
October 3, 2015, have also been released.
How many similar military investigations (known as AR 15-6 reviews) have
been conducted into accidental killings in the war on terror? According to
Airwars, another British-based organization, we know, for instance, that the
U.S. is looking into a strike that killed at least 56 civilians in Manbij,
Syria, this past July. There are guaranteed to be many more such
investigations that have never seen the light of day.
The Obama administration consistently claims that groups like Airwars and
the Bureau of Investigative Journalism do not have the full story. This
flies in the face of multiple reports from Amnesty International, Human
Rights Watch, Al-Karama, researchers at Stanford and Columbia universities,
and even the United Nations, all of whom have investigated and identified a
growing number of drone-strike deaths among those without any links to
terror or insurgent movements. If evidence to the contrary really exists,
this would be the moment for Obama to prove them wrong, rather than simply
letting more collateral damage be piled on his legacy.
3. Make Public the Administrations Criteria for Its Targeted Killings: In
July and August, under pressure from the American Civil Liberties Union
(ACLU), the Obama administration released a series of documents revealing
the procedures it uses to identify and target for assassination individuals
responsible for terrorist activities in much of the world -- and the way it
has justified such killings internally. If anything, however, those
documents (known as the presidential policy guidance, or PPG) have merely
suggested how much of the process still remains beyond public view.
Frustratingly, too much remains secret about the program, including where
the PPG actually applies, what its general standards mean in practice, and
how evidence that those standards have been met is evaluated -- in addition
to who the government is killing, and where, writes Brett Max Kaufman, an
ACLU staff attorney.
When Donald Trump first sends out a CIA drone to kill someone chosen by his
White House, he will be able to claim that he is doing so under the secret
system set up by Obama. Without access to the procedures that Obama
pioneered, we will have no way of knowing whether Trump will be telling the
truth.
None of these three suggestions would be difficult or even controversial
(though dont hold your breath waiting for them to happen). With each, Obama
could increase transparency before he inevitably hands over control of the
targeted-killing program to Trump. None of this would even faze a future
Trump administration, however. So here are a few suggestions of things that
might matter for all of us if Obama did them before Trump enters the Oval
Office.
Surveillance
4. Disclose Mass Surveillance Programs: Even though Senator Obama opposed
the collection of data from U.S. citizens, President Obama has vigorously
defended the staggering expansion of the national security state during his
two terms in office. "You can't have 100% security and also then have 100%
privacy and zero inconvenience," he said in 2013, days after Edward Snowden
leaked a trove of National Security Agency data that transformed our view of
what our government has collected about all of us. "You know, we're going to
have to make some choices as a society."
Thanks to Snowden, we also now know that the U.S. government secretly
received permission from the Foreign Intelligence Surveillance Court to
collect all U.S. telephone metadata via programs like Stellarwind; created a
program called Prism to tunnel directly into the servers of nine major
Internet companies; tapped the global fiber optic cables that lie on the
ocean beds; collected text messages via a program called Dishfire; set up a
vast database called X-Keyscore to track all the data from any given
individual; and even built a program, Optic Nerve, to turn on users
webcams, allowing for the collection of substantial quantities of sexually
explicit communications. And thats just the tip of the iceberg. (For a
searchable index of all such revelations so far, click here.)
http://www.amazon.com/dp/1608463656/ref=nosim/?tag=tomdispatch-20
http://www.amazon.com/dp/1608463656/ref=nosim/?tag=tomdispatch-20Ironically,
a report from the FBI that was finally published in April 2015 shows that
this vast effort was largely useless in identifying terrorists. In 2004,
the FBI looked at a sampling of all the [Stellarwind] tips to see how many
had made a significant contribution to identifying a terrorist, deporting
a terrorism suspect, or developing a confidential informant about
terrorists, wrote New York Times reporter Charlie Savage who spent years
fighting for access to the documents. Just 1.2 percent of the tips from
2001 to 2004 had made such a contribution. Two years later, the FBI reviewed
all the leads from the warrantless wiretapping part of Stellarwind between
August 2004 and January 2006. None had proved useful.
These days smart criminals and terrorists use encryption or other means like
burner phones to make sure that they cant be followed. The only senior
operatives being hacked these days seem to be Democratic Party officials
like John Podesta and millions of ordinary citizens whose data is stolen by
criminals. So why not reveal just what programs the government used in these
years, what was done with them, why it failed, and what lessons were (or
werent) learned? Evidence of the national security states massive waste of
time and resources might indeed be useful for us to have as we think about
how to improve our less than 100% privacy and security. Such disclosures
would not imperil the governments ability to seek warrants to lawfully
intercept information from those suspected of criminal wrongdoing or
terrorism.
5. Make Public All Surveillance Agreements With Private Companies: To this
day, the U.S. government has secret agreements with a variety of data
companies to trawl for information. Some companies are deeply uneasy about
this invasion of their customers privacy, if only because it probably
violates the terms of service they have agreed to and could cause them to
lose business (given that they face competition from non-U.S. companies and
more secure alternatives).
Take Yahoo, for example. The Justice Department obtained a court order in
2015 to search all users incoming emails for a unique computer code
supposedly tied to the communications of a state-sponsored terrorist
organization. The company has requested that the government declassify the
order to clear its name. It has yet to do so.
Of course, not all companies are as eager to see their government deals
revealed. Consider AT&T, the telecommunications giant. Police departments
across the country pay it as much as $100,000 a year for special access to
the telephone records of its clients (without first obtaining a warrant).
The program is called Hemisphere and the company requires buyers to keep
its existence secret.
The Electronic Frontier Foundation, a San Francisco-based activist group,
calls this evidence laundering. As Adam Schwartz, senior staff attorney on
the Electronic Frontier Foundation's civil liberties team, puts it: "When
police hide their sources of evidence, the accused cannot challenge the
quality or veracity of the governments investigation, or seek out favorable
information still in the governments possession. Moreover, hiding evidence
from individuals who are prosecuted as a result of such surveillance is
antithetical to our fundamental right to an open criminal justice system."
Surely such an argument ought to convince a former law professor? President
Obama could easily strike a major blow for fair trials by revealing the
extent and the details of these local police contracts, which are
essentially an open secret, as well as any other agreements the national
security state has with private companies to spy on ordinary citizens. Once
again, this would not hamper the governments ability to seek warrants when
it can convince a judge that it needs to intercept individual
communications.
6. Make Public All Secret Law Created in Recent Years: The last thing wed
want would be for Donald Trump and his future White House adviser, white
nationalist Steve Bannon, to enter the Oval Office and start making secret
law by wielding executive powers to, say, round up Muslims or deny women
their rights.
Stopping Trump from taking this route and creating his own body of secret
law is going to be hard indeed, given that Obama has probably signed more
secret orders than any previous president. As Elizabeth Goitein, the
co-director of the Brennan Centers Liberty and National Security Program,
noted in a recent report, the Obama administration has failed to release a
minimum of 74 of the Justice Departments Office of Legal Counsel opinions
and memos that have been the secret basis for government actions on national
security issues -- including detention, interrogation, intelligence
activities, intelligence-sharing, and responses to terrorism. In addition,
as many as 30 rulings of the Foreign Intelligence Surveillance Court between
2003 and 2013 have not been made public. And an astonishing 807
international agreements, including bilateral ones to control the
transportation of narcotics, signed by the U.S. between 2004 and 2014 have
never seen the light of day.
Trump, of course, has refused even to publish his tax returns (previously a
presidential campaign ritual), so if Obama doesnt come clean, dont expect
Trump to release any of the secret law his predecessor made in the next four
years. This moment, then, represents a unique opportunity for the president
to fulfill his promise of 2009 to create the most open presidency of all
time. Sadly, no one expects him to do so. The Obama administration has
apparently abandoned even the appearance of transparency, according to
Anne Weisman, executive director of Citizens for Responsibility and Ethics
in Washington, a nonpartisan NGO that tracks government accountability.
Since its very unlikely that Obama will reverse course on surveillance and
secret law in the next 40 days, here at least are some suggestions on what
he might still accomplish as the nations chief law enforcer.
Punish
7. Punish Anyone Who Abused the Drone or Surveillance Programs: We dont
really know who ordered the drone strikes that knocked off so many innocent
people. But the names of the architects of the program are known and, more
importantly, the president undoubtedly has all the names he needs.
And if Obama does want to clean house before Trump takes over, why not
identify and dismiss the individuals who designed the NSAs surveillance
programs that infringed in major ways on our privacy without uncovering any
terrorists?
8. Punish Those Responsible for FBI Domain Management Abuses: Since the
attacks of September 11, 2001, the FBI has developed a network of more than
15,000 informants as part of its Domain Management program. Many of them
were recruited to infiltrate Muslim communities to identify terrorists. For
the last 15 years, this vast sting program has been used to round-up Muslims
-- those dumb enough to fall for FBI enticements at least -- and put them in
prison.
In the process, plenty of terror operations were created, but few real
ones broken. We already know the details of many of the abuses involved.
Back in 2011, for instance, a Mother Jones investigation found that 49
successful prosecutions of terrorists were the result of sting
operations set up by FBI agents provocateurs. You realize that many of
these people would never have committed a crime if not for law enforcement
encouraging, pressuring, and sometimes paying them to commit terrorist
acts, Andrea Prasow of Human Rights Watch wrote in a report on the program
in 2014.
Whistleblowers have come forward to expose the abusive tactics employed by
the FBI in such cases. Take Craig Monteilh, an ex-convict hired by the
Bureau to infiltrate mosques in southern California. After he had a change
of heart, Monteilh helped local Muslims sue the agency. The case was, in the
end, reluctantly dismissed by District Judge Cormac Carney who wrote that
"the state secrets privilege may unfortunately mean the sacrifice of
individual liberties for the sake of national security." Other informants,
like Saeed Torres, have since come forward to expose other aspects of the
program. The government has never acknowledged any of this.
It is very likely that this same group will be called upon to support Donald
Trumps orders if a Muslim registry is ever set up. So this would be the
moment for Obama to crack down in some fashion on this hapless system of
profiling and entrapment before the Trump administration can expand it.
Pardon
9. Pardon Edward Snowden, Chelsea Manning, and the other whistleblowers:
Last but not least, why not pardon Edward Snowden, Chelsea Manning, and the
other whistleblowers who served the public good by letting us know what the
president wouldnt? As of now, Barack Obama will go down in history as the
president who prosecuted more truth-tellers, often under the draconian World
War I-era Espionage Act, than all other presidents combined. Stephen Kim,
Jeffrey Sterling, John Kiriakou, and Thomas Drake were government officials
who talked with journalists. They were subsequently jailed or had their
lives turned upside down. Others like Chelsea Manning and Barrett Brown have
been jailed for hacking or for the release of documents relating to
surveillance, U.S. wars abroad, and other national security matters.
Gabe Rottman of the ACLU sums the situation up this way: By my count, the
Obama administration has secured 526 months of prison time for national
security leakers, versus only 24 months total jail time for everyone else
[who ever leaked] since the American Revolution.
On this issue, Obama has already made his position clear enough. Of Snowden,
in particular, he told Der Spiegel earlier this month, I can't pardon
somebody who hasn't gone before a court and presented themselves.
For a constitutional law professor, thats a terrible argument. The power
of pardon conferred by the Constitution upon the President is unlimited
except in cases of impeachment, the Supreme Court ruled in 1866. It
extends to every offence known to the law, and may be exercised at any time
after its commission, either before legal proceedings are taken or during
their pendency, or after conviction and judgment. The power is not subject
to legislative control.
It also flies in the face of history and of the presidents own actions.
Richard Nixon hadnt even been indicted when Gerald Ford issued a full,
free, and absolute pardon unto Richard Nixon, comments the Pardon Snowden
campaign. Nor had the thousands of men who had evaded the Vietnam War
draft, who were pardoned unconditionally by Jimmy Carter on his first day in
office. President Obama himself pardoned three Iranian American men earlier
this year in the framework of the nuclear deal with Iran. Like Snowden, the
three had been indicted but hadnt stood trial when they were pardoned.
Given how rarely Obama has issued presidential pardons, it seems unlikely
that he will act. Hes pardoned fewer people than any president since James
Garfield, who was fatally shot in 1881 after less than three months in
office, writes Steven Nelson at U.S. News & World Report. Indeed, Bush
pardoned twice as many people as Obama in his first seven years in office, a
record that he might want to ameliorate. (In fairness, it should be noted
that Obama has set a record for commuting jail sentences.)
Will Obama act on any of these nine recommendations? Or will he simply hand
over the vast, increasingly secretive national security state that he helped
build to a man whom he once declared to be unfit not just for the
presidency but even for a job at a retail store. The guy says stuff nobody
would find tolerable if they were applying for a job at 7-Eleven, Obama
told an election rally in October.
Now, its his move. Forget about 7-Eleven; Obama will not have to apply for,
or campaign for, his next well-paid job, whatever it may be. But there is
the little matter of his legacy, of truth, and oh, yes, of the future
security of the country.
Pratap Chatterjee, a TomDispatch regular, is executive director of
CorpWatch. He is the author of Halliburton's Army: How A Well-Connected
Texas Oil Company Revolutionized the Way America Makes War. His next book,
Verax, a graphic novel about whistleblowers and mass surveillance
co-authored with Khalil Bendib, will be published by Metropolitan Books in
2017.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest
Dispatch Book, Nick Turses Next Time Theyll Come to Count the Dead, and
Tom Engelhardt's latest book, Shadow Government: Surveillance, Secret Wars,
and a Global Security State in a Single-Superpower World.
Copyright 2016 Pratap Chatterjee
© 2016 TomDispatch. All rights reserved.
View this story online at: http://www.tomdispatch.com/blog/176217
