Obama’s new free speech threat

Glenn Greenwald | Salon.com | May 16 2012

An Executive order seeks to punish U.S. citizens even for "indirectly" obstructing dictatorial rule in Yemen

(updated below – Update II)

There is substantial opposition in both Yemen and the West to the new U.S.-backed Yemeni President, Abed Rabbo Mansour Hadi. Hadi was the long-time Vice President of the Yemeni dictator Ali Abdullah Saleh, and after Saleh finally stepped down last year, Hadi became President as part of an “election” in which he was the only candidate (that little fact did not prevent Hillary Clinton from congratulating Yemen “on today’s successful presidential election” (successful because the U.S. liked the undemocratic outcome)). As it does with most U.S.-compliant dictators in the region, the Obama administration has since been propping up Hadi with large amounts of money and military assistance, but it is now taking a much more extreme step to ensure he remains entrenched in power — a step that threatens not only basic liberties in Yemen but in the U.S. as well:

President Obama plans to issue an executive order Wednesday giving the Treasury Department authority to freeze the U.S.-based assets of anyone who “obstructs” implementation of the administration-backed political transition in Yemen.

The unusual order, which administration officials said alsotargets U.S. citizens who engage in activity deemed to threaten Yemen’s security or political stability, is the first issued for Yemen that does not directly relate to counterterrorism.

Unlike similar measures authorizing terrorist designations and sanctions, the new order does not include a list of names or organizations already determined to be in violation. Instead, one official said, it is designed as a “deterrent” to “make clear to those who are even thinking of spoiling the transition” to think again. . . .

The order provides criteria to take action against people who the Treasury secretary, in consultation with the secretary of state, determines have “engaged in acts that directly or indirectly threaten the peace, security or stability of Yemen, such as acts that obstruct the implementation of the Nov. 23, 2011, agreement between the Government of Yemen and those in opposition to it, which provides for a peaceful transition of power . . . or that obstruct the political process in Yemen.”

In other words, the U.S. Government will now punish anyone who is determined — in the sole discretion of the U.S. Government — even to “indirectly” obstruct the full transition of power to President Hadi. But what if someone — a Yemeni or an American — opposes Hadi’s rule and wants to agitate for a real election in which more than one candidate runs? Is that pure political advocacy, as it appears, now prohibited by the U.S. Government, punishable by serious sanctions, on the ground that it “obstructs” the transition of power to Hadi? Can journalists who report on corruption or violence by the Hadi regime and who write Op-Eds demanding a new election be accused, as it seems, of “threatening Yemen’s political stability”?

Rules of American justice: a tale of three cases

Glenn Greenwald  | salon.com | January 24, 2012

Developments in three legal cases, just from the last 24 hours, potently illuminate the Rules of American Justice. First, the Justice Department yesterday charged a former CIA agent, John Kiriakou, with four felony counts for having allegedly disclosed classified information to reporters about the CIA’s interrogation program. Included among those charges are two counts under the Espionage Act of 1917, based on the allegation that he disclosed information which he “had reason to believe could be used to the injury of the United States and to the advantage of any foreign nation.” Kiriakou made news in 2007 when he told ABC News that he led the team that captured accused Terrorist Abu Zubaydah and that the techniques to which Zubaydah was subjected, including waterboarding, clearly constituted “torture,” though he claimed they were effective and arguably justifiable. He’s also accused of being the source for a 2008 New York Times article that disclosed the name of one of Zubaydah’s CIA interrogators.

What’s most notable here is that this is now the sixth prosecution by the Obama administration of an accused leaker, and all six have been charged under the draconian, World-War-I era Espionage Act. As EFF’s Trevor Timm put it yesterday: this is the “6th time under Obama someone is charged with Espionage for leaking to a journalist. Before Obama: only 3 cases in history.” This is all accomplished by characterizing disclosures in American newspapers about America’s wrongdoing as “aiding the enemy” (the alleged enemy being informed is Al Qaeda, but the actual concern is that the American people learn what their government is doing). As The New York Times‘ Charlie Savage wrote this morning, Obama has brought “more such cases than all previous presidents combined,” and by doing so, has won the admiration of the CIA and other intelligence agencies which, above all else, loathe transparency (which happens to be the value that Obama vowed to provide more of than any President in history).

Also yesterday in American justice, a three-judge panel of a federal appellate court in Virginia upheld the dismissal of a lawsuit brought against Donald Rumsfeld and other Bush officials by Jose Padilla, the U.S. citizen who was imprisoned for almost three years without charges or even a lawyer and was systematically tortured to the point of permanent mental incapacitation. Padilla sued the former Defense Secretary on the ground that he had authorized Padilla’s illegal imprisonment and torture. The Obama DOJ vigorously defended Rumsfeld, arguing (a) that Rumsfeld is entitled to immunity on the ground that he had reason to believe his acts were legal and (b) an American citizen has no right to sue a government official for the treatment he receives as a designated “enemy combatant” — even if the treatment in question is torture and prolonged imprisonment without charges.

Obama v. Obama on signing statements

Glenn Greenwald | Salon.com | April 17, 2011

The issue of signing statements is more complex than the political controversy over them suggests. When condemning Bush/Cheney lawlessness, I rarely focused on their use of signing statements. That was true for several reasons.

There's nothing inherently illegitimate about a President's expressing his view on various laws. It's vastly preferable for a President to openly declare his intent to violate the law than to do so secretly. Signing statements themselves are just instruments for conveying constitutional views of the law; whether they're truly odious depends upon the view that is being expressed (what made Bush so radical were the theories of executive omnipotence he embraced, not his use of signing statements to express those views).

And a reasonable argument can be made (though it's not one I share) that a President's duty to uphold the Constitution can sometimes be advanced more by refusing to execute an unconstitutional law than by enforcing it; that view, at least for some, is a critical part of the formal definition of the "unitary theory of the executive" and is something right-wing theorists (and now Obama supporters) have long maintained (I ultimately reject that view because the constitutionally legitimate means for a President to object to an unconstitutional law is to veto it, not violate it; moreover, the power to declare laws unconstitutional lies with courts, not the President). But all of those issues introduce nuance into the question of signing statements that is often lacking in the political discussions they've triggered.

But there was no such nuance present when Barack Obama, during a 2008 campaign rally, made his position known on signing statements. After being asked by an audience member whether he would "promise" not to use signing statements to override Congressional statutes, he stated simply "yes," and then elaborated as follows: