Mojo - June 2009

Torture Reports Update

| Wed Jun. 17, 2009 11:19 AM PDT

Torture opponents are hoping to see two reports—one by the CIA's inspector general, and one by the Department of Justice's Office of Professional Responsibility—sometime soon. On Wednesday, there was good news and bad news for those calling for transparency on torture. The bad news, via the Washington Post, is that the CIA is (shocker!) opposing the release of the full IG report. Jameel Jaffer, Director of the ACLU National Security Project, issued a response to that story Wednesday afternoon:

It's not surprising that the CIA is fighting for the suppression of documents that would provide further evidence that its torture program was both ineffective and illegal. Over the last few weeks, the agency has also suppressed cables relating to illegal interrogation methods and transcripts in which prisoners explain the torture that was inflicted upon them in the CIA's secret prisons. President Obama should not allow the CIA to determine whether evidence of its own unlawful conduct should be made available to the public. The president has rightly recognized the importance of restoring the rule of law at home and the moral authority of the United States abroad, but neither of those things will be possible as long as the CIA is permitted to conceal evidence of its crimes. The public has a right to know what took place in the CIA's secret prisons, and on whose authority.

The good news is that the Justice Department's OPR report is on its way out, perhaps without too many redactions. Attorney General Eric Holder told the Senate judiciary committee today that his "hope" is "to share as much of that report as I can with members of Congress and the public," and he "wouldn’t want to put an incomplete report in the public." He promised to release the report within "a matter of weeks."

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Obama Sides With Bush Again

| Wed Jun. 17, 2009 10:29 AM PDT

This time over the Bush administration's refusal to release then-Vice President Dick Cheney's interview with the FBI regarding his role in the Valerie Plame leak. At the time, Bush and his attorney general, Michael Mukasey, cited executive privilege. They also floated the idea that future officials would be unwilling to cooperate with criminal investigations if they knew their interviews could be made public. Except special prosecutor Patrick Fitzgerald never offered Cheney confidentiality. But the Obama administration—citing arguments similar to Bush's—has refused to make the interview public.

So Citizens for Responsibility and Ethics in Washington sued the Justice Department under the Freedom of Information Act, whose guidelines Attorney General Eric Holder altered in March "to favor disclosure and transparency." They argue their case in U.S. District court on Thursday, and it appears they will base their argument partially on Holder's own loosening of Ashcroft-era FOIA restrictions. In an April letter to the Justice Department, CREW's attorney David Sobel wrote:

As the Attorney General has directed, echoing the words of President Obama, information should not be withheld “merely because public officials might be embarrassed by disclosure, [or] because errors and failures might be revealed.”

That certainly hurts the Justice Department's case, though perhaps not enough to compel the court to side with CREW. The Justice Department is also basing its case partly on certain exemptions from FOIA, one being Exemption 7a, which authorizes:

[T]he withholding of "records or information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings."

Determining the applicability of this Exemption 7 subsection thus requires a two-step analysis focusing on (1) whether a law enforcement proceeding is pending or prospective, and (2) whether release of information about it could reasonably be expected to cause some articulable harm.

So the DOJ is reasonably expecting the release of Cheney's testimony to interfere with enforcement proceedings. How? The proceedings are over. The jury convicted Scooter Libby. Obama has not so much as hinted he wants to prosecute Cheney. In fact, he has said the opposite, all while promising transparency. What articulable harm could result in releasing Cheney's interview?

Obama's Derivatives Loophole

| Wed Jun. 17, 2009 9:24 AM PDT

On Wednesday, President Barack Obama released his proposal (PDF) for new regulation of financial instruments, including derivative products like credit default swaps that many believe contributed to the financial meltdown. But separate sets of rules for two types of derivatives could undermine the effectiveness of the administration's regulatory reform. Obama's Derivatives Loophole.

Obama Reg Plan (Sort of) Blames Summers for Financial Mess

| Wed Jun. 17, 2009 9:20 AM PDT

On Wednesday, the White House released its plan for reviving financial regulatory reform. And the plan nicely sums up how credit default swaps--complex financial instruments traded between financial firms to cover possible losses--helped grease the way to the current economic disaster:

One of the most significant changes in the world of finance in recent decades has been the explosive growth and rapid innovation in the market for financial derivatives. Much of this development has occurred in the market for OTC derivatives, which are not executed on regulated exchanges. In 2000, the Commodity Futures Modernization Act (CFMA) explicitly exempted OTC derivatives, to a large extent, from regulation by the Commodity Futures Trading Commission. In addition, the law limited the SEC’s authority to regulate certain types of OTC derivatives. As a result, the market for OTC derivatives has largely gone unregulated.
The downside of this lax regulatory regime for OTC derivatives – and, in particular, for credit default swaps (CDS) – became disastrously clear during the recent financial crisis. In the years prior to the crisis, many institutions and investors had substantial positions in CDS – particularly CDS that were tied to asset backed securities (ABS), complex instruments whose risk characteristics proved to be poorly understood even by the most sophisticated of market participants. At the same time, excessive risk taking by AIG and certain monoline insurance companies that provided protection against declines in the value of such ABS, as well as poor counterparty credit risk management by many banks, saddled our financial system with an enormous – and largely unrecognized – level of risk.
When the value of the ABS fell, the danger became clear. Individual institutions believed that these derivatives would protect their investments and provide return, even if the market went down. But, during the crisis, the sheer volume of these contracts overwhelmed some firms that had promised to provide payment on the CDS and left institutions with losses that they believed they had been protected against. Lacking authority to regulate the OTC derivatives market, regulators were unable to identify or mitigate the enormous systemic threat that had developed.

We're Still at War: Photo of the Day for June 17, 2009

Wed Jun. 17, 2009 7:21 AM PDT

U.S. Army 1LT Jared Tomberlin (left) from Bravo Company, 1st Battalion, 4th Infantry Regiment gets a first hand view of the land with outgoing commander 1LT Larry Baca from Charlie Co. 1-4, on top of a ridge near Forward Operation Base Lane, Zabul Province, Afghanistan, on February 21, 2009. (U.S. Army photo by Staff Sergeant Adam Mancini / Released)

Ahmadinejad Photoshop Fail

| Wed Jun. 17, 2009 7:13 AM PDT

Iran's powers that be are not very good at Photoshop:This is a pretty obvious Photoshop fail. Begun, the clone war has. (h/t BoingBoing)

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Shockingly, Your Government is Spying on You

| Wed Jun. 17, 2009 6:53 AM PDT

The New York Times reports today that National Security Agency "monitoring" of domestic email messages is "broader than previously acknowledged" and the agency is still examining "large volumes of Americans’ e-mail messages without court warrants." The fact that this kind of thing is no longer surprising is a sad commentary on the state of the Fourth Amendment.

Doctors Boo Obama

| Wed Jun. 17, 2009 6:00 AM PDT

As a rule, people don’t boo Barack Obama, the first rock star president. But on Monday, that’s exactly what happened. On a charm offensive in support of his health care reform efforts, Obama addressed the American Medical Association, the nation’s largest physician lobby. The doctors in the audience booed him for revealing that he didn’t support the group’s pet cause—caps on damages in medical malpractice lawsuits. Nonetheless, he did win some applause by adopting the doctors’ language and referring to the “defensive medicine” that is supposedly driving up health care costs.

In a carefully parsed speech, he said, “Some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That’s a real issue. And while I’m not advocating caps on malpractice awards which I believe can be unfair to people who’ve been wrongfully harmed, I do think we need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine, and encourage broader use of evidence-based guidelines. That’s how we can scale back the excessive defensive medicine reinforcing our current system of more treatment rather than better care.”

It was a cagey move. In throwing the docs a bone, Obama embraced one of their most cherished arguments: that “defensive medicine” is driving up health care costs. But this bone doesn’t have much meat on it. Defensive medicine is doctors’ favorite anti-lawsuit argument. It goes something like this: The mere threat of malpractice lawsuits drives physicians to overprescribe expensive tests and procedures, ergo, making it harder for malpractice victims to sue would bring down health care costs. 

Best in Blog: 17 June 2009

| Wed Jun. 17, 2009 2:00 AM PDT

Those meddling kids at the State department asked Twitter to postpone the Fail Whale's Tehran cameo; Wall Street breathed a sigh of relief; and this week's adorably endangered animal is the Hawaiian monk seal.

Meanwhile, Blackwater lost a federal-issue fryer (and $55 million), health care reform is feeling a bit faint, and Chastity Bono's sex change = shrug.

And the question of the day: Are there any senators whose Tweets aren't cringeworthy? This guy, not so much.

Obama's "Groundbreaking" Climate Report. Meh.

| Tue Jun. 16, 2009 3:19 PM PDT

The release today of the first climate report from Barack Obama's presidency prompted a dizzy reaction in the press. The AP called it "the strongest language on climate change ever to come out of the White House" and the Washington Post pointed out that it called evidence of climate change "unequivocal." Unveiled by Obama's scientific advisor and packaged by a San Francisco-based environmental PR firm, the report, Global Climate Change Impacts in the United States, helped convey the idea that Obama was breaking from the Bush years to tackle climate change head-on. Nevermind that almost nothing of substance in the report is different from a draft that the Bush administration had released last summer.

Take this line from the executive summary, which so impressed the Post: "Global warming is unequivocal and primarily human-induced." Here's what the the Bush administration's draft said: "Global warming is unequivocal and is due primarily to human-induced emissions of heat-trapping gases and other pollutants." Not much difference there.

Aside from the natural gap in polish between a rough and final draft, very little seperates the two documents. The Bush version prominently states that the impacts of human-induced climate change "are apparent now throughout the United States," that "climate changes are occurring faster that projected," and that reducing climate change will entail "reducing emissions to limit future warming." It's as if the report had been written by Al Gore.

Of course, Bush didn't want to release this report. The first draft, made public last summer, was published four years late and only after an environmental group successfully sued for its release. Yet that doesn't make Obama's decision to hype the final version any more impressive. It comes at no political cost to him but could be seen as a way to placate environmentalists. Many green groups are on the verge of mutiny or have declared it over the Waxman/Markey climate bill, an unconscionable giveaway to big polluters, in their view, that Obama has called "a historic leap." Those groups won't be impressed by today's news, but some of their supporters will.