Mojo - February 2013

"Most Transparent Administration Ever" Is Still Not

| Thu Feb. 7, 2013 11:59 AM EST

For years, the Obama administration refused to make public the Justice Department's classified legal opinions on the "targeted killing" of terrorism suspects. But Wednesday's news that the administration will let some members of Congress see the memos explaining the administration's legal justification for killing American citizens does not mean this administration is suddenly "the most transparent administration ever." In fact, forget classified memos: The administration can't even get the Freedom of Information Act right. On Monday, two congressmen demanded the Obama administration answer for its failure to improve the public's access to information through FOIA, under which American citizens can request government documents.

On his first day in office President Obama issued a memo committing to a strong, effective FOIA. "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails," it read. But filing a FOIA request and getting information back is still a struggle. On Monday, the top members of the House oversight committee, Reps. Elijah Cummings (D-Md.) and Darrell Issa (R-Ca.), sent a letter to the Justice Department, which keeps tabs on how FOIA requests are carried out, demanding information on nearly two dozen problems with the Obama administration's FOIA policy. The congressmen point to "outdated FOIA regulations, exorbitant and possibly illegal fee assessments, FOIA backlogs, [and] the excessive use and abuse of exemptions."

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Obama Released Bush's Torture Memos. Why Not Release the Targeted-Killing Memos?

| Thu Feb. 7, 2013 11:14 AM EST

The Obama administration announced Wednesday night it will disclose classified Department of Justice documents explaining the legal justification for the killing of American terror suspects abroad to members of the House and Senate intelligence committees. The decision came in advance of hearings scheduled for Thursday in which the Senate intelligence committee was set to consider the nomination of John Brennan, the White House counterterrorism adviser, to head the Central Intelligence Agency. A bipartisan group of senators and representatives led by Sen. Ron Wyden (D-Ore.) had spent months pressuring the administration to disclose the contents of the memos before the hearings. But while certain members of Congress will get to see the memos, the documents will not be made public. 

Until Wednesday, the members of Congress charged with overseeing United States intelligence community had never actually seen the legal justification for lethal operations that have been taking place over the course of the last four years. Although members of Congress have occasionally made moves toward forcing the administration to disclose that legal rationale, they have always backed down.

Now civil liberties groups want to know why it's only a few members of Congress, and not the public, who are allowed to see the documents governing how and when Americans can be killed by their own government.

"The United States is not a nation of secret laws, and a memo authorizing the killing of American citizens is too important to keep from the American people," the American Civil Liberties Union's Christopher Anders said in a press release Wednesday evening. "Everyone—not just select members of Congress—has a right to know when the government believes it can kill American citizens."

This isn't the first time the Obama administration has faced calls for disclosure of controversial Justice Department legal opinions laying out an expansive view of presidential power. Early in his presidency, Obama made the decision to disclose the George W. Bush administration's internal legal opinions justifying the use of torture against terror suspects. The right howled that Obama was compromising national security, but the president defended his decision in an April 2009 speech to the CIA at the agency's headquarters in Langley, Virginia. Then, as now, the administration was being sued by civil liberties groups to force disclosure of the documents. Here is an excerpt from that speech:

As I made clear, in releasing the [Justice Department Office of Legal Counsel] memos as a consequence of a court case that was pending and to which it was very difficult for us to mount an effective legal defense. I acted primarily because of the exceptional circumstances that surrounded these memos, particularly the fact that so much of the information was public—had been publicly acknowledged. The covert nature of the information had been compromised…What makes the United States special, and what makes you special, is precisely the fact that we are willing to uphold our values and ideals even when it’s hard—not just when it's easy; even when we are afraid and under threat—not just when it's expedient to do so. That's what makes us different.

The Obama administration, which was losing court fights over the torture memos, has so far succeeded in preventing the courts from compelling the release of the targeted-killing memos. But everything else Obama said about the torture memos—that there are exceptional circumstances (in this case, the deaths of American terror suspects), for example, or that the program is essentially public knowledgealso applies to his targeted-killing memos.

The key difference between the torture memos and the targeted-killing memos is that the torture memos were written during the Bush administration, while the targeted-killing memos were written during Obama's. Another difference is that because Obama banned torture by executive order, it was highly unlikely that Americans would be affected by the practices the torture memos justified. The same cannot be said for the targeted-killing memos, which are still in force and apply to an ongoing government program.

If releasing the torture memos to the public was justified, it's very hard to understand why Americans should be kept in the dark about the details of when, how and why their own government can mark them for death. As Wyden said on MSNBC Thursday morning, "Every American has the right to know when their government believes it's allowed to kill them. I don't think that, as one person said, is too much to ask."

We're Still at War: Photo of the Day for February 7, 2013

Thu Feb. 7, 2013 11:09 AM EST

U.S. Army Sgt. Andrew Barnett scans the area using the optic lens on his M14 enhanced battle rifle outside an Afghan border police observation point in Kunar province, Afghanistan, Jan. 28, 2013. Barnett is assigned to the 101st Airborne Division's 2nd Battalion, 327th Infantry Regiment, 1st Brigade Combat Team. U.S. Army photo by Sgt. Jon Heinrich.

 

The Great Texas–California Flame War of 2013

| Thu Feb. 7, 2013 10:16 AM EST
The passage east.

The first wagon trains left in January. There were just a few in the beginning, and they proceeded with caution, fording the San Joaquin River, navigating the canyons and switchbacks of the high Sierras, and traversing the salt flats and creosote scrub of the Great Basin before descending, at last, over the rocky peaks and into the the fertile loam of the southern plains. What they couldn't carry with them—ocean-going yachts, car elevators, labradoodles—they'd simply discarded. Someday, maybe, when the time was right, they would return to the California they'd fled, to the Ocean-front estates and climate-controlled wine cellars they'd left behind. But for now, their sights were set on a new homeland where men, and sometimes even women, were free. Texas.

Or something like that, anyway. Earlier this week, Texas Gov. Rick Perry (R) ratcheted up his longstanding feud with California by purchasing radio ads in the Golden State urging businesses to pack up their things and come to Texas. "Building a business is tough, but I hear building a business in California is next to impossible," Perry said. "I have a message for California businesses: Come check out Texas." California Gov. Jerry Brown (D) responded as well as you might expect from someone who had just been trolled by Rick Perry. The ad was "barely a fart," Brown said at a press conference, while working in a dig at "Lubbock, or whatever those places are that make up that state."

And now the New York Times has entered the fray with the provocative headline, "Millionaires Consider Leaving California Over Taxes." But the article mentions just one Californian, golfer Phil Mickelson, who has recently considered leaving over taxes, and Mickelson later apologized for even talking about the idea. There's also this, from Stanford sociology professor Cristobal Young:

"I suspect the accountants are busier this year, but I don’t think the moving companies are getting a boost," Mr. Young said. "Moving out of state is actually one of the most costly responses they could make. California's high-income earners are clustered in coastal cities far from state borders. Moving to Nevada or Texas or Florida is a very big life change, and means leaving behind family, friends, colleagues and business connections."

Reuters highlighted Young's research in a similar piece last fall, concluding that tax hikes had no impact on where millionaires chose to live:

In fact, more millionaires came to the state than left after California's so-called Millionaire's Tax was introduced in 2005 - adding 1 percentage point of tax to incomes over $1 million. A 1996 cut to taxes for those earning $110,000 and up did not spur migration into the state, either.

The number of millionaires has risen or fallen by about 10,000 a year, but that change has been almost entirely due to the state economy, not wealthy people coming into or leaving the state. Such migration accounted for about 47 people, net, on average.

That's because, high taxes notwithstanding, California still has many things going for it, including science classes that teach science, the ability to drink at a bar without being hauled off in handcuffs, and—this can't be overstated—proximity to California.

NRA Pushes Bill to Outlaw Anti-Smoking Programs

| Thu Feb. 7, 2013 6:16 AM EST

The National Rifle Association is worried that Kansas might try to discourage gun ownership. So it is throwing its weight behind a bill that would prevent the state from spending money lobbying against "any legal consumer product"—a category that includes, among other things, tobacco and junk food.

Although State Bill 45, debated yesterday by a state Senate committee, focuses on lobbying efforts at the state and local level, a broad interpretation of the language could prevent Kansas from spending anything on programs that discourage the use of harmful products. The bill could "scuttle public health campaigns and other proven public health programs," the Topeka Capital-Journal reported yesterday, citing testimony from a Democratic senator and a representative from the American Cancer Society.

Corn on Hardball: Drones Under Scrutiny

Wed Feb. 6, 2013 7:44 PM EST

With a leaked Justice Department memo giving legal justification for killing US citizens, drone strikes are getting increased scrutiny. How does Obama's extrajudicial record compare to Bush's? David Corn talks about targeted killings with Chris Matthews on MSNBC's Hardball.

David Corn is Mother Jones' Washington bureau chief. For more of his stories, click here. He's also on Twitter.

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Conservative Judges' Ruling Would Have Invalidated Hundreds of GOP Recess Appointments, Not Just Obama's

| Wed Feb. 6, 2013 3:10 PM EST
President Ronald Reagan and then-Vice President George H.W. Bush in 1981.

Conservative commentators have portrayed a federal appeals court's January ruling that President Barack Obama's appointments to the National Labor Relations Board were unconstitutional as nothing more than a stern rebuke to an out of control president. (The Washington Post's conservative blogger Jennifer Rubin used the word "power grab" three times in a single post, Heritage called the ruling "a blow to Obama's imperial presidency"). But the DC Circuit Court of Appeals' ruling—a unanimous decision by three Republican-appointed judges—is far broader than Obama's critics have allowed, and would have invalidated the appointments of some of their favorite presidents, too.

The circuit court's decision concerned recess appointments—temporary appointments, provided for by the Constitution, that presidents can make while the Senate, which normally has to approve many presidential appointments, is on vacation (recess, in DC jargon). For decades, presidents have used these recess appointments to bypass Senate obstruction of their nominees. Obama used recess appointments to put new members on the NLRB; George W. Bush used one to install John Bolton as his ambassador to the United Nations. But in recent years, Democrats and Republicans have tried to block recess appointments by using a procedural gimmick—two or three-minute meetings that were gaveled in and promptly gaveled back out—to keep the Senate "in session" while most Senators were actually on break. 

Obama made recess appointments anyway. The court said Obama's NLRB appointments were unconstitutional because the Senate was still technically in session—an embrace of the procedural gimmick.

That's not all the court said, though. As I reported the day the decision was handed down, the ruling also suggests that almost all recess appointments made over the last hundred years were unconstitutional. The judges said that all recess appointments made during breaks in a session of Congress—the break Congress takes around Easter and Passover, for example—are unconstitutional. According to the court, only recess appointments that occur during breaks between sessions (which generally happen once a year, around New Year's day) are constitutional—and only then if they are made to fill a position that became vacant during that same break. If the ruling holds, future presidents will find their ability to fill key posts over Senate objections drastically reduced. 

As Talking Points Memo's Brian Beutler reported Tuesday, a recent Congressional Research Service report found that more than half of the recess appointments made during the presidencies of Ronald Reagan, George H. W. Bush, Bill Clinton, and George W. Bush would have been unconstitutional under the DC Circuit's ruling. CRS found 329 recess appointments that would have been automatically forbidden because they were made during breaks in a Senate session. It also found 323 recess appointments that occurred during a break between Senate sessions, but CRS researchers were unable to determine how many of those were filled because of a vacancy that occurred during the break itself. Since vacancies are only rarely timed to coincide with Senate recesses, it seems likely that many of those recess appointments would have been unconstitutional, too.

Bottom line: Hundreds of recess appointments just in the past 30 years would have been unconstitutional under the court's ruling. Moreover, in part because of GOP obstruction, no president in the last 30 years has used the recess appointment power less often than President Obama (from the CRS report):

If the appeals court's ruling is correct, and most recess appointments are unconstitutional, then previous presidents violated the Constitution far more frequently than the man currently sitting in the White House.

We're Still at War: Photo of the Day for February 6, 2013

Wed Feb. 6, 2013 9:47 AM EST

Lance Cpl. Cassidy Zacharyasz provides overwatch for International Security Assistance Forces as they conduct a district transition assessment visit with Nawa District officials at the Nawa District Government Headquarters, Helmand province, Afghanistan, Jan. 29, 2013. U.S. Marine Corps photo by Sgt. John R. Rohrer.

 

Report: These 54 Foreign Governments Helped the CIA Torture, Detain, and Transport Suspects After 9/11

| Tue Feb. 5, 2013 6:01 PM EST

On Tuesday, the Open Society Justice Initiative released a 212-page report that details international assistance to US covert action related to controversial Bush-era anti-terror policy. The report (PDF), titled "Globalizing Torture: CIA Secret Detention and Extraordinary Rendition," identifies 136 people who were captured or transferred by the Central Intelligence Agency, and lists available information about the detainees—both the Islamist operatives and the completely innocent.

"Globalizing Torture" also provides an annotated list of the dozens of foreign governments that played roles in the CIA's secret program in the years following the 9/11 terrorist attacks. These governments provided crucial support in facilitating the CIA and Bush administration's war on Al Qaeda by, according to the report:

[H]osting CIA prisons on their territories; detaining, interrogating, torturing, and abusing individuals; assisting in the capture and transport of detainees; permitting the use of domestic airspace and airports for secret flights transporting detainees; providing intelligence leading to the secret detention and extraordinary rendition of individuals; and interrogating individuals who were secretly being held in the custody of other governments. Foreign governments also failed to protect detainees from secret detention and extraordinary rendition on their territories and to conduct effective investigations into agencies and officials who participated in these operations.

Here are the 54 listed, in alphabetical order:

  • Afghanistan
  • Albania
  • Algeria
  • Australia
  • Austria
  • Azerbaijan
  • Belgium
  • Bosnia-Herzegovina
  • Canada
  • Croatia
  • Cyprus
  • The Czech Republic
  • Denmark
  • Djibouti
  • Egypt
  • Ethiopia
  • Finland
  • Gambia
  • Georgia
  • Germany
  • Greece
  • Hong Kong
  • Iceland
  • Indonesia
  • Iran
  • Ireland
  • Italy
  • Jordan
  • Kenya
  • Libya
  • Lithuania
  • Macedonia
  • Malawi
  • Malaysia
  • Mauritania
  • Morocco
  • Pakistan
  • Poland
  • Portugal
  • Romania
  • Saudi Arabia
  • Somalia
  • South Africa
  • Spain
  • Sri Lanka
  • Sweden
  • Syria
  • Thailand
  • Turkey
  • United Arab Emirates
  • United Kingdom
  • Uzbekistan
  • Yemen
  • Zimbabwe

Check out the full report here.

Two Years Later, The Florida Bar Takes Action Against Foreclosure Baron David J. Stern

| Tue Feb. 5, 2013 3:07 PM EST
A caricature of David J. Stern, portrayed as Superman, as it appeared on a commemorative T-shirt.

Way back in August 2010, I sounded the alarm about a fellow named David J. Stern, a lawyer in Fort Lauderdale, Florida, who'd gotten rich off the housing meltdown of the mid-2000s. Stern ran a law firm that handled foreclosure cases as fast as possible for big banks and the quasi-governmental housing corporations Fannie Mae and Freddie Mac. But as I revealed, Stern's law firm, paid per case, increasingly cut corners and, in some cases, duped judges in Florida's overwhelmed court system in the race to foreclose on more people and make more money. (One local judge said a key document filed by a lawyer in Stern's firm was "fraudulently backdated, in a purposeful, intentional effort to mislead the defendant and this court.") Stern's firm, I noted, was among the largest of a thriving breed of law firms profiting off of the housing crisis—and called them "foreclosure mills."

Days after my 4,600-word investigation into Stern's operation appeared, the Florida attorney general's office launched its own probe of three of the state's largest foreclosure mills. The big banks soon cut ties with Stern, as did Fannie and Freddie. Later, Fannie and Freddie cut ties with all foreclosure mills like Stern's, after an inspector general report (citing Mother Jones, among others) criticized their use of such firms. Yet through it all, the Florida Bar, the enforcer of ethics for the state's lawyers, publicly did nothing, to the dismay of homeowners, attorneys, and judges on the other side of Stern's misdeeds.

No longer. The Palm Beach Post reports that the Bar is looking to bring disciplinary action against Stern resulting from 17 different complaints over the backdating of foreclosure documents, misleading local courts, failing to appear before an appeals court in a class action, and for his attorneys failing to appear in foreclosure hearings. The Bar decided to pursue action against Stern after internal grievance committees—similar to a grand juries—found probable cause in various Bar complaints filed against Stern.

Stern's attorney, Jeffrey Tew, told the Post that the Bar had already closed 19 complaints against Stern without any repercussions. "David didn't do anything wrong, ethically or otherwise," Tew said. "He had a very complete system of supervision and didn't participate in any of the individual situations."

There is little left of Stern's business empire. His law firm shuttered in March 2011 after the banks and Fannie and Freddie yanked their foreclosure cases out of his hands. The next day, DJSP Enterprises, Stern's short-lived foreclosure processing operation, told investors it would voluntarily delist from the NASDAQ stock exchange. It was quite a downfall for a man whose firm, a few years before, litigated hundreds of thousands of cases for the biggest banks in America, and who was so assured of his abilities and power that he gave T-shirts to investors depicting himself as Superman.

Stern is no longer the Superman of foreclosure lawyers. But for the defense attorneys and homeowners and judges streamrolled by Stern's foreclosure machine, long-delayed action by the Florida Bar is better than nothing.