Three Dangers of Biden/Harris Admin, by Glenn Greenwald

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Biden’s DOJ Vows to Stop Spying on Journalists Months After Placing Gag Order on New York Times
by Amy Goodman
Democracy Now
JUNE 07, 2021
https://www.democracynow.org/2021/6/7/j ... lance_fisa

GUESTS
Jameel Jaffer: founding director of the Knight First Amendment Institute at Columbia University.
LINKS
Jameel Jaffer on Twitter
"The Drone Memos: Targeted Killing, Secrecy, and the Law"

The New York Times has revealed shocking details about an unsuccessful attempt by the Trump administration, and then the Biden administration, to secretly obtain the email logs of four reporters at the newspaper. As part of the campaign, the Biden Justice Department placed a gag order on the Times in March to prevent many at the paper from even knowing about the request until a federal court lifted it. In recent weeks the Justice Department also disclosed the Trump administration had secretly obtained the call records of four journalists at the Times, as well as three journalists at The Washington Post and one at CNN. Jameel Jaffer, founding director of the Knight First Amendment Institute at Columbia University, says subpoenas for journalists’ records are “really troubling” because of their potential chilling effect on critical journalism. “It’s about the right of the public to have access to information about the government,” he says.

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: I’m Amy Goodman. This is Democracy Now!

We turn now to look at a fight over press freedom. The New York Times has revealed shocking details about an unsuccessful attempt by the Trump administration — and then the Biden administration — to secretly obtain the email logs of four New York Times reporters. As part of the campaign, the Biden Justice Department placed a gag order on the Times in March to prevent many at the paper, including its executive editor, from even knowing about the request. The Times reported on the story Friday after a federal court lifted the gag order. In recent weeks the Justice Department also disclosed the Trump administration had secretly obtained the call records of four journalists at the Times, as well as three journalists at The Washington Post and one, Barbara Starr, at CNN.

On Saturday, the Justice Department reversed course and announced it’s changing its policy and will no longer force media companies to hand over source information as part of its leak investigations.

On Sunday, New York Times reporter Adam Goldman appeared on CNN’s Reliable Sources. His phone records were seized by both the Obama and Trump administrations.

ADAM GOLDMAN: It’s certainly disappointing, but I wasn’t surprised. Some of the same prosecutors who were involved in seizing my phone records earlier this year, and unsuccessfully trying get my emails, were involved in secretly obtaining my phone records in 2013 when I worked at the Associated Press. This office, the U.S. Attorney’s Office in D.C., has a history of trampling on the First Amendment. So that’s why I wasn’t surprised. They treat the media, they treat newspapers like drug gangs.

AMY GOODMAN: In late May, President Biden spoke out against the seizing of records from journalists at the very time when The New York Times was still under a gag order. He was questioned by CNN’s Kaitlan Collins.

KAITLAN COLLINS: [Should the government be] seizing reporters’ phone records and emails? And would you prevent your Justice Department from doing that?

PRESIDENT JOE BIDEN: Only yours. But beyond yours, OK, for them, no.

KAITLAN COLLINS: But honestly.

PRESIDENT JOE BIDEN: And we should — absolutely positively, it’s wrong. Simply, simply wrong.

KAITLAN COLLINS: So you won’t let your Justice Department do that?

PRESIDENT JOE BIDEN: I will not let that happen.

AMY GOODMAN: It was only this weekend that the Justice Department announced they would not do this.

The White House said in a statement late Monday that it was “not consulted” on the Justice Department continuing to defend former President Donald Trump in E. Jean Carroll’s defamation lawsuit against him, the third time the Biden Administration has distanced itself from the DOJ in recent days as President Joe Biden contrasts himself with Trump by emphasizing the department’s independence.

-- White House Distances Itself From DOJ’s Trump Defense As Biden Breaks With His Justice Department — Again, by Alison Durkee

We’re joined now by Jameel Jaffer, the founding director of the Knight First Amendment Institute at Columbia University, previously the deputy legal director at the ACLU.

Jameel, it’s great to have you back. Can you first respond to what we learned this weekend?

JAMEEL JAFFER: Yeah, sure. And thanks for inviting me.

I mean, I guess the first thing to say is that these kinds of subpoenas are really troubling for a number of reasons. It’s not so much about journalists’ rights; it’s about the right of the public to have access to information about the government. And if reporters’ sources are available to the government, then reporters won’t be able to get the information they need in order to write the stories we want them to write. So there’s a real concern that these kinds of subpoenas can have a chilling effect on journalism that is, you know, really necessary, journalism that goes to the ability of the public to hold government officials accountable for their decisions. So, that’s why I think these reports are so disturbing, these reports of Trump administration subpoenas directed at news organizations, intended to uncover the identities of reporters’ sources. And, you know, as your intro noted, we’ve seen now a number of these; just over the last few weeks, a number of these have come to light.

One sort of background fact that’s important to recognize here is that the Supreme Court hasn’t weighed in on this set of issues for 50 years. And the result is that whatever protections journalists have in this context are really a matter of executive grace. They’re a matter of what protections the Justice Department wants to give them, rather than what protections the First Amendment requires. The First Amendment is kind of strangely absent in this context. The relevant set of rules has come, over the last few years, at least, from the attorney general’s guidelines, which were strengthened under President Obama. Attorney General Holder tightened those restrictions — tightened those rules in some ways to make it slightly — not just slightly, more difficult for prosecutors to obtain reporters’ sources, the identities of reporters’ sources.

But even with that kind of tightening, the Justice Department has found it possible to serve these subpoenas, and not just serve these subpoenas, but this most recent report out of The New York Times involves not just a subpoena intended to obtain reporters’ phone and email records, or subpoenas meant to obtain those records, but a gag order on Times executives that prevented, initially, the Times's lawyer, David McCraw, from disclosing the fact of the subpoena and court order to other Times officials. And that, I think, is a kind of independent First Amendment problem, not just the subpoena directed — you know, intended to uncover the reporters' sources, but then a gag order that prevents the Times from sharing that kind of information even within the organization, let alone with the public.

AMY GOODMAN: And, of course, we don’t know if there are — though the Biden Justice Department says they’re not going to engage in these, whether there are any more of these gag orders out there, because people can’t talk about them. And what do you make of — I mean, Goldman and Matt Apuzzo had been — the Justice Department had gone after them both under the Obama administration — they worked for AP, and now they’re working at The New York Times — and him saying, “They treat us like drug gangs. They’re using the same laws”?

JAMEEL JAFFER: Yeah. Well, I mean, I do think that there’s a real risk here that people will come to see journalists as kind of extensions of law enforcement or extensions of the intelligence agencies, and then, you know, would-be sources won’t go to people like Apuzzo or Goldman with information that is crucial for the public to have. So I do think that the concerns are justified.

I know that President Biden has now said that his administration won’t tolerate these kinds of subpoenas, and the Justice Department has said that it’s going to implement that direction, which is obviously a good thing. You know, what I would say about that, though, just to temper it a little, number one, is, again, it’s really troubling that all of this is a matter of executive grace rather than constitutional law. There should be some set of rules, that is independent of whoever’s in office right now, that limits what kinds of information the Justice Department can get, and when, in these kinds of investigations.

But the other thing I’d say is just that there are real questions about implementation. You know, the definitions matter. Like, who counts as a journalist? What counts as a leak investigation? The attorney general’s guidelines have historically had exception for foreign intelligence investigations. And that means that subpoenas and court orders served under the Foreign Intelligence Surveillance Act or national security letters that are sometimes served on technology companies or telecoms, those are essentially exempt from the attorney general guidelines that were put in place under the Obama administration. So there’s a real question now — you know, great that the Biden administration seems willing to go in a different direction, but I think we should ask some questions about the precise scope of the commitment that the Justice Department has now made.

AMY GOODMAN: Would it be up to Congress to pass laws?

JAMEEL JAFFER: Yeah, well, you know, many states have shield laws that protect journalists when state law enforcement seeks access to their records. There is no federal shield law, so, you know, again, we have no background First Amendment law, or almost no background First Amendment law. There’s a 1972 case, Branzburg v. Hayes, which is the last time the Supreme Court weighed in, in this context. But that case is very, very muddy, sort of notoriously muddy. It doesn’t really give journalists any kind of real confidence that their records can be kept secret. So you’ve got that, and, on the other hand, you have no federal shield law. There’s no congressionally enacted protections for journalists.

So, again, what that leaves journalists with is really just whatever protections the Justice Department wants to give. And I don’t think that’s really defensible in a society that is committed to press freedom. You know, you can’t call yourself a society that’s committed to press freedom if the only press freedom that exists is the press freedom that the government wants to provide or the executive branch wants to provide.

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DOJ Announces it will Defend Donald Trump in Defamation Lawsuit brought by E. Jean Carroll
by Glenn Kirschner
Jun 8, 2021

In a disappointing turn of events, the Department of Justice filed a motion in federal court yesterday defending Donald Trump in the defamation lawsuit brought against him by E. Jean Carroll. The court had ruled that the allegedly defamatory statements by Trump about Ms. Carroll were not within the scope of his official presidential duties or employment. The DOJ disagrees and has come to Donald Trump's defense.

Here's is some of what's at stake by the DOJ taking this troubling position.




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DOJ's Position in the E. Jean Carroll Case Explained
by Glenn Kirschner
Jun 9, 2021

President Biden's Department of Justice under the leadership of Attorney General Merrick Garland has been a mixed bag. This video reviews several recent DOJ decisions, from police department "Pattern or Practice" investigations, civil rights prosecutions and high profile subpoenas of folks like Rudy Giuliani to DOJ's decision in the lawsuit for the clearing of protestors from Lafayette Square and the recent decision in the E. Jean Carroll case. Specifically, this vide contains a review of the DOJ's legal rationale for filing an appeal in the Carroll case and the pros and cons of the position DOJ has decided to take in that case.

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White House Distances Itself From DOJ’s Trump Defense As Biden Breaks With His Justice Department — Again
by Alison Durkee
Forbes Staff
Jun 8, 2021,11:12am EDT

TOPLINE

The White House said in a statement late Monday that it was “not consulted” on the Justice Department continuing to defend former President Donald Trump in E. Jean Carroll’s defamation lawsuit against him, the third time the Biden Administration has distanced itself from the DOJ in recent days as President Joe Biden contrasts himself with Trump by emphasizing the department’s independence.

KEY FACTS

The Trump-era Justice Department tried to intervene in a defamation lawsuit that Carroll brought against Trump for comments he made after she accused him of sexual assault, asking to represent Trump in the case because his denial of Carroll’s allegations was allegedly part of his presidential duties.

After a judge denied the Trump DOJ’s attempt to join the case and the Justice Department appealed the ruling, the Biden DOJ said in a court filing that while it didn’t support Trump’s “crude and disrespectful comments,” it still believed Trump’s response to Carroll’s allegations were answers to questions “posed to him in his capacity as President.”

The White House “was not consulted by DOJ on the decision to file this brief or its contents,” spokesman Andrew Bates said in response to the filing, noting that Biden and his team “have utterly different standards from their predecessors for what qualify as acceptable statements.”

Biden also disputed the DOJ defending a Trump-era Social Security Act provision for Puerto Rico residents in a U.S. Supreme Court filing Monday, saying the provision the Justice Department was backing—part of their “longstanding practice” to defend federal statutes—“is inconsistent with my Administration’s policies and values.”

White House Press Secretary Jen Psaki also distanced the administration from the DOJ’s practice of using gag orders when seizing records from journalists, saying in a statement they were unaware of it before a New York Times report Friday.

The Justice Department will no longer subpoena reporters’ records because doing so is “not consistent with the president’s policy direction to the department,” Psaki said.

TANGENT

Biden also attacked Trump having the Justice Department defend him in Carroll’s lawsuit ahead of the presidential election, saying during a town hall the case was an instance of Trump using the DOJ as his “own law firm.”

CHIEF CRITICS

Carroll and attorney Roberta Kaplan have heavily criticized the Biden DOJ’s decision to wade into her case against Trump, which Kaplan said Monday was “truly shocking” and “legally” and “morally wrong.” “As women across the country are standing up and holding men accountable for assault — the DOJ is trying to stop me from having that same right,” Carroll said in a statement.

KEY BACKGROUND

After Trump faced criticism throughout his presidency that he was using his Justice Department and U.S. Attorney General William Barr to do his bidding, Biden has repeatedly emphasized his intention to keep his administration’s judiciary arm as independent as possible. "The Justice Department in my administration will be totally independent of me," Biden said on the campaign trail in September, calling the DOJ’s “politicization” under Trump “the most dangerous thing that's happened so far” during Trump’s presidency. U.S. Attorney General Merrick Garland has vowed to be impartial in his work at the department, saying after being confirmed that the “essence of the rule of law” is that there should not be “one rule for Democrats and another for Republicans, one rule for friends, another for foes.” In addition to the Carroll lawsuit, the Biden Administration has also pointed to the DOJ’s independence to justify not getting involved in questions of whether Trump should face prosecution for his alleged role in the Jan. 6 attack on the Capitol building, with Psaki saying in February that the issue will be “up to the Department of Justice to determine.” “We’re doing something new here, and there’s going to be an independent Justice Department,” Psaki said.

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Biden's Lawless Bombing of Iraq and Syria Only Serves the Weapons Industry Funding Both Parties
U.S. citizens derive no benefit, but instead suffer great loss, from endless war in the Middle East. But their interests are irrelevant to decisions of bipartisan Washington.
by Glenn Greenwald
Jun 28, 2021


US President Joe Biden salutes along with Secretary of Defense Lloyd Austin before delivering an address at the 153rd National Memorial Day Observance at Arlington National Cemetery on Memorial Day in Arlington, Virginia on May 31, 2021. (Photo by MANDEL NGAN/AFP via Getty Images)

For the second time in the five months since he was inaugurated, President Joe Biden on Sunday ordered a U.S. bombing raid on Syria, and for the first time, he also bombed Iraq. The rationale offered was the same as Biden's first air attack in February: the U.S., in the words of Pentagon spokesman John Kirby, “conducted defensive precision airstrikes against facilities used by Iran-backed militia groups in the Iraq-Syria border region.” He added that “the United States acted pursuant to its right of self-defense.”

Embedded in this formulaic Pentagon statement is so much propaganda and so many euphemisms that, by itself, it reveals the fraudulent nature of what was done. To begin with, how can U.S. airstrikes carried out in Iraq and Syria be "defensive” in nature? How can they be an act of “self-defense"? Nobody suggests that the targets of the bombing campaign have the intent or the capability to strike the U.S. "homeland” itself. Neither Syria nor Iraq is a U.S. colony or American property, nor does the U.S. have any legal right to be fighting wars in either country, rendering the claim that its airstrikes were "defensive” and an “act of self-defense” to be inherently deceitful.

The Pentagon's description of the people bombed by the U.S. — “Iran-backed militias groups” — is intended to obscure the reality. Biden did not bomb Iran or order Iranians to be bombed or killed. The targets of U.S. aggression were Iraqis in their own country, and Syrians in their own country. Only the U.S. war machine and its subservient media could possibly take seriously the Biden administration's claim that the bombs they dropped on people in their own countries were "defensive” in nature. Invocation of Iran has no purpose other than to stimulate the emotional opposition to the government of that country among many Americans in the hope that visceral dislike of Iranian leaders will override the rational faculties that would immediately recognize the deceit and illegality embedded in the Pentagon's arguments.

Beyond the propagandistic justification is the question of legality, though even to call it a question dignifies it beyond what it merits. There is no conceivable Congressional authorization — none, zero — to Biden's dropping of bombs in Syria. Obama's deployment of CIA operatives to Syria and years of the use of force to overthrow Syrian leader Bashar al-Assad never had any Congressional approval of any kind, nor did Trump's bombing of Assad's forces (urged by Hillary Clinton, who wanted more), nor does Biden's bombing campaign in Syria now. It was and is purely lawless, illegal. And the same is true of bombing Iraq. The 2002 Authorization to Use Military Force (AUMF) in Iraq, which the House just last week voted to repeal, has long since ceased to provide any legal justification for ongoing U.S. troop presence and bombing campaigns in that country.

In its statement justifying the bombing raids, Biden's Pentagon barely even bothered to pretend any of this is legal. It did not cite either the 2002 AUMF for Iraq or the 2001 AUMF authorizing the use of force against those responsible for 9/11 (a category which, manifestly, did not include Iran, Iraq or Syria). Instead, harkening back to the days of John Yoo and Dick Cheney, the Biden Defense Department claimed that “as a matter of international law, the United States acted pursuant to its right of self-defense,” and casually asserted that “as a matter of domestic law, the President took this action pursuant to his Article II authority to protect U.S. personnel in Iraq."

Those claims are nothing short of a joke. Nobody seriously believes that Joe Biden has congressional authority to bomb Syria and Iraq, nor to bomb “Iranian-backed” forces of any kind. As The Daily Beast's long-time War on Terror reporter Spencer Ackerman put it on Sunday night, discussions of legality at this point are "parody” because when it comes to the U.S.'s Endless Wars in the name of the War on Terror, “we passed Lawful behind many many years ago. Authorization citations are just pretexts written by lawyers who need to pantomime at lawfulness. The U.S. presence in Syria is blatantly illegal. Such things never stop the U.S.”

That is exactly right. The U.S. government is a lawless entity. It violates the law, including its own Constitution, whenever it wants. The requirement that no wars be fought absent congressional authority is not some ancillary bureaucratic annoyance but was completely central to the design of the country. Article I, Section 8 could not be clearer: “The Congress shall have Power . . . to declare war.” Two months after I began writing about politics — back in December, 2005 — I wrote a long article compiling the arguments in the Federalist Papers which insisted that permitting the president unchecked powers to wage war without the approval of the public — through their representatives in Congress — was uniquely dangerous for ushering in the kind of tyranny from which they had just liberated themselves, and another article in 2007 which did the same:

The Constitution -- while making the President the top General in directing how citizen-approved wars are fought -- ties the use of military force to the approval of the American citizenry in multiple ways, not only by prohibiting wars in the absence of a Congressional declaration (though it does impose that much-ignored requirement), but also by requiring Congressional approval every two years merely to have an army. In Federalist 26, this is what Alexander Hamilton said in explaining the rationale behind the latter requirement (emphasis in original):

The legislature of the United States will be obliged by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter by a formal vote in the face of their constituents. They are not at liberty to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence.

Public opposition is the key check on the ill-advised use of military force. In Federalist 24, Hamilton explained that the requirement of constant democratic deliberation over the American military is "a great and real security against military establishments without evident necessity". . . .

Finding a way to impose checks on the President's war-making abilities was a key objective of the Founders. In Federalist 4, John Jay identified as a principal threat to the Republic the fact that insufficiently restrained leaders "will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people."

But as Ackerman says, even discussing legality at this point is meaningless, an empty gesture, a joke. It gives far too much credit to the U.S. ruling class, as it implies that they care at all about whether their posture of endless war is legal. They know that it is illegal and do not care at all. Many have forgotten that President Obama not only involved the U.S. in a devastating regime-change war in Libya without congressional approval, but so much worse, continued to do so even after the House of Representatives voted against providing him authorization to use force in Libya. Obama ignored the House vote and kept troops in Libya anyways as part of a NATO mission, claiming that NATO and U.N. authorization somehow entitled him to do this despite his own country's Congress voting against it, reflecting overwhelming opposition among the citizenry. (The U.N. authorization — even if it could somehow supplant the U.S. Constitution — only allowed the use of force to protect civilians, not to overthrow the Libyan government, which quickly and predictably became the NATO mission, making it clearly illegal).

House of Representatives votes against US Libya role, by BBC News, June 24, 2011
The US House has refused to give President Barack Obama Authority to continue US participation in the Nato-led operation in Libya, but rejected a bid to cut off money for the conflict.

This is one reason I found the Trump-era discourse so suffocatingly dishonest and fraudulent. I began writing about politics in 2005 in order to document the systemic lawlessness that had become the fully bipartisan Bush/Cheney War on Terror. The executive power theories that were adopted — that the president has the right to do whatever he wants under Article II regardless of congressional laws or any other acts by courts or the citizenry, even including spying on American citizens without warrants — was the pure expression of authoritarianism and lawlessness. That lawlessness not only continued but escalated severely under the Obama administration, with the war in Libya, the claimed right to assassinate anyone in the world without due process, including U.S. citizens, and the CIA's covert regime-change war in Syria.

Unclaimed Territory, by Glenn Greenwald, Jan. 6, 2006
An Ideology of Lawlessness

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Chilling legal memo from Obama DOJ justifies assassination of U.S. citizens, by Glenn Greenwald, The Guardian, Feb. 5, 2013

Having to watch the Bush/Cheney and Obama/Biden operatives who ushered in this permanent state of illegality and lawless wars prance around during the Trump years as noble defenders of the sacred rule of law — all while being celebrated and profiting greatly — was nauseating in the best of times. American elites do not care about the rule of law or the Constitution. Ignoring it is how they empower themselves at the expense of the citizenry. That is why very few will care about the fact that Biden (indulging the fiction for a moment that it was he) ordered the bombings on two countries without the slightest whiff of legal authority to do so.

While it feels frivolous even to raise questions of legality — since so few in Washington care about such matters — the real overarching question is the simplest one. Why does the U.S. continue to have a military presence in Iraq and Syria? What conceivable benefits redound to American citizens from the massive expenditures required to keep U.S. troops stationed in these two countries, the risk of those troops’ lives, the endless acquisition of bombs and other weapons to fight there, and the obvious but severe dangers from triggering escalation with powerful militaries that — unlike the U.S. — actually have a vital interest in what takes place in their bordering countries?

While the ordinary American only suffers from all of this, there are definitely some sectors of U.S. society which benefit. The corporation that Biden’s Secretary of Defense Lloyd Austin left in order to run the Pentagon — Raytheon — needs ongoing troop deployment and permanent warfare for its profitability. According to The New York Times, it was “Defense Secretary Lloyd J. Austin III and Gen. Mark A. Milley, the chairman of the Joint Chiefs of Staff, [who] briefed Mr. Biden on attack options early last week,” after which "Mr. Biden approved striking the three targets.” So Gen. Austin's colleagues on the Raytheon Board of Directors, as well as his comrades on the Boards of General Dynamics and Boeing, are surely thrilled with this attack.

Raytheon Technologies
Board of Directors
Lloyd J. Austin, III
General, U.S. Army (Ret.) and Former Command of U.S. Central Command
Lloyd J. Austin III is a member of the Raytheon Technologies Board of Directors. He brings expertise in government, senior leadership and international affairs.

Indeed, anyone invested in endless war in the Middle East — including the entire U.S. intelligence community and the weapons industry which feeds off of it — must be thrilled by all of this. Each time the U.S. "retaliates” against Iran or Iraqi militias or Syrian fighters, it causes them to "retaliate” back, which in turn is cited as the reason the U.S. can never leave but must instead keep retaliating, ensuring this cycle never ends. It also creates a never-ending supply of angry people in that region who hate the U.S. for bringing death and destruction to their countries with bombs that never stop falling and therefore want to strike back: what we are all supposed to call "terrorism.” That is what endless war means: a war that is designed never to terminate, one that is as far removed as possible from actual matters of self-defense and manufactures its own internal rationale to continue it.

But what is beyond doubt is that this illegal, endless war in the Middle East does nothing but harm American citizens. As they are told that they cannot enjoy a sustainable let alone quality standard of living without working two or three dreary hourly-wage, benefits-free jobs for corporate giants, and while more Americans than ever continue to live at home and remain financially unable to start families, the U.S. continues to spend more on its military than the next thirteen countries combined. This has continued for close to two full decades now because the establishment wings of both parties support it. Neither of them believes in the Constitution or the rule of law, nor do they care in the slightest about the interests of anyone other than the large corporate sectors that fund the establishment wings of both parties. The bombs that fell on Syria and Iraq last night were for them and them alone.