Category: Barack Obama

Cross posted from The Stars Hollow Gazette

Greg Sargent at the Washington Post reports:

Obama is set to appoint Sharon Block, Terence Flynn, and Richard Grifin to the board – something unions have made a big priority for them in the new year. Senate Republicans have opposed the recess appointments to the NLRB on constitutional grounds, but unions charge that Republicans are only interested in rendering the agency inoperative.

Obama’s move, which will help energize unions in advance of the 2012 election, is yet another sign that he is determined to circumvent GOP opposition and make government functional again by any means necessary. It’s another sign that the White House and Dems have abanoned the illusion that anything can be done to secure bipartisan compromise with Republicans on the major items on Obama’s agenda.

From Think Progress:

All 47 Senate Republicans have warned Obama of a “constitutional conflict” should he choose to use his recess appointment powers – authority he is well within his right to use, as ThinkProgress’ Ian Millhiser noted yesterday – but it was Chief Justice John Roberts, a noted conservative, who said the president should make recess appointments to keep the NLRB functioning, as ThinkProgress reported in 2010.

Obama’s appointment of Block, Flynn, and Griffin is important, too, because it boosts the board’s membership to five, protecting its quorum even if member Brian Hayes follows through on his threats to quit. Preserving its right to quorum ensures that its rulings will not be thrown out on legal challenges, as more than 600 cases were by the Roberts Court in 2010.

Cross posted from The Stars Hollow Gazette

It was announced by the White House that President Barack Obama will make a recess appointment of former Attorney General of Ohio, Richard Cordray to head the newly created Consumer Financial Protection Bureau (CFPB):

President Barack Obama installed Richard Cordray as head of the Consumer Financial Protection Bureau with a recess appointment today, testing the limits of his executive authority to fill the post without Senate approval.

Obama nominated Cordray to be the bureau’s first director in July, almost one year after enactment of the Dodd-Frank financial regulatory law creating the agency. Republicans blocked Cordray’s confirmation by the Senate last month. Putting him in the job today may set up an election-year court fight between the White House and Congress.

Even thought the Senate has been under Democratic control since 2006 when the tactic of pro forma session was first employed to keep President George W. Bush from making recess appointments to the bench, there have been questions by legal scholars about the constitutionality about their use. It has since been used to placate the Republicans in hopes of winning their cooperation, obviously to no avail.

Senate Majority Leader Mitch McConnell (R-KY) called President Obama move “arrogant”, saying that “Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.”

House Speaker John Boehner had a similar reaction calling the appointment an “extraordinary and entirely unprecedented power grab” by the president.

The legal precedent for these sessions is on very shaky ground. In a 1993 court case involving the Postal Service Board of Governors, Justice Department lawyers argued in court papers that presidents can make recess appointments when the Senate is out of session for more than three days.

The brief suggested that a president might lack that authority during shorter breaks. Pointing to the constitutional requirement that the Senate and House get one another’s consent before adjourning for more than three days, the Justice Department said the constitutional framers might not have considered shorter recesses to be significant.

“If the recess here were of three days or less, a closer question would be presented,” the Justice Department argued.

However, lawyers who advised President George W. Bush on recess appointments wrote that the Senate “cannot use sham ‘pro forma’ sessions to prevent the president from exercising a constitutional power.”

David Dayen at FDL points out the Constitutional argument that there is no time requirement in the Constitution for Congress to be in recess before the president can make recess appointments:

As for the judicial question on whether pro forma sessions count as keeping Congress in session, the 11th Circuit Court of Appeals ruled back in 2007 that “The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.” On the other side of this, Solicitor General Neal Katyal, in a 2010 case, argued that the Administration recognized that a 3-day recess was “too small,” in their understanding, to make appointments.

While the Republicans will very likely mount a court challenge, claiming past precedent, it may well fail since the president has the power to make recess appointments under Article II, Section 2 of the Constitution which states, “the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” It can be argued that Congress is in recess when they gavel out at the end of each day or whenever there is no quorum, which goes to the constitutional argument about pro forma sessions.

The other issue is why didn’t he appoint Elizabeth Warren who is eminently more qualified than Cordray to head the CFPB? It is most likely because of objections from Treasury Secretary Timothy Geithner’s objections and her memo to the the state attorney general’s who are negotiating a settlement with the big banks over mortgage fraud.

Make no mistake, Obama is doing this now for purely political motivations. It emphases Republican obstructionism and as a ploy to win back the disenfranchised left wing of the Democratic Party, as well as, the Independent voters who believed in all his “hopey, changey” campaign rhetoric.

Cross posted from The Stars Hollow Gazette

Since taking office in 2009, President Obama has waged an increasing clandestine war using unmanned drones controlled by civilians members of the CIA. In a recent article Washington Post‘s Greg Miller exposes some troubling aspects of the program which has little oversight or control:

In the space of three years, the administration has built an extensive apparatus for using drones to carry out targeted killings of suspected terrorists and stealth surveillance of other adversaries. The apparatus involves dozens of secret facilities, including two operational hubs on the East Coast, virtual Air Force­ ­cockpits in the Southwest and clandestine bases in at least six countries on two continents. [..]

The rapid expansion of the drone program has blurred long-standing boundaries between the CIA and the military. Lethal operations are increasingly assembled a la carte, piecing together personnel and equipment in ways that allow the White House to toggle between separate legal authorities that govern the use of lethal force.

In Yemen, for instance, the CIA and the military’s Joint Special Operations Command pursue the same adversary with nearly identical aircraft. But they alternate taking the lead on strikes to exploit their separate authorities, and they maintain separate kill lists that overlap but don’t match. CIA and military strikes this fall killed three U.S. citizens, two of whom were suspected al-Qaeda operatives. [..]

Obama himself was “oddly passive in this world,” the former official said, tending to defer on drone policy to senior aides whose instincts often dovetailed with the institutional agendas of the CIA and JSOC.

Joshua Foust in The Atlantic observes that there are consequences for the successes claimed by the Obama Administration:

In the countries where the drone system is most active — Pakistan and Yemen — relations with local governments and communities are awful, and perceptions of the United States could barely be any worse. There is agreement seemingly only on the need for long distance killing, and even then — especially in Pakistan — there is a great deal of contention.

In fact, one could argue that the severe degradation of relations with Pakistan, which are driven to a large degree by popular anger over drone strikes (as well as a parallel perception among some Pakistani elites that the U.S. disregards Pakistani sovereignty at will), is driving the current U.S. push to ship supplies and, eventually, the withdrawal from Afghanistan, through Uzbekistan.

Besides the political consequences, Foust notes the reorientation of the intelligence community to this killing program may hinder its ability of collecting and analyzing the data needed and a heavy reliance on information from sketchy local partners that can, and has, resulted in unnecessary fatalities. His opinion of Obama’s expansion of the drone war is scathing:

This sloppiness with life and death decisions is a substantial moral failing, and should be a huge scandal for President Obama. But, he has decided to both distance himself from it while also taking credit for its successes, even as it focuses on ever less important and marginal figures within the terrorist milieu. [..]

It is an absolute scandal. We owe ourselves better questions and more accountability of the drones we use to wantonly kill people around the planet.

Senior reporter for Wired.com’s Danger Room, Spencer Ackerman, discussed the sharp increase in drone attacks to do the military’s job since Obama took office.

Cross posted from The Stars Hollow Gazette

While he is on vacation in Hawaii, President Barack Obama will ask Congress to raise the debt ceiling for the third and last time under the agreement that was negotiated last August. The increase, which is expected to be made by December 30, can only be stopped by passage of a “resolution of disapproval” which the President can veto. That isn’t likely since the last resolution was blocked by the Democrats in the Senate and since Congress in recess until the end of January, well past the 15 days Congress has to vote in the resolution of disapproval.

Pres. Obama is expected to ask for authority to increase the borrowing limit by $1.2 trillion which is within $100 billion of the current cap of $15.194 trillion. The motivation to request this raise now is mostly political and tied to the election next November, as noted by David Dayen at FDL:

In numbers that came out earlier this month, the deficit under current law for Fiscal Year 2012, ending September 30, is set to be right around $1 trillion. That doesn’t leave a lot of wiggle room for the White House to get to the next election without having to deal with the debt limit again, especially if new measures like the payroll tax go unfunded. [..]

That seems to be the motivating factor here. The White House simply does not want to go through another bruising debt limit fight again before the election. That places a limit on borrowing in the next fiscal year. It explains why the “fight” over the American Jobs Act wasn’t that major a fight, because passing all of the measures without paying for them immediately would require raising the debt limit again. And paying for them immediately would make the stimulative effect irrelevant. A couple of the measures, like the payroll tax and unemployment benefits, could conceivably pass while allowing the Treasury to squeeze past the elections under the debt limit. But the numbers are pretty close.

David Weigel at Slate points out, with some amusement, another reason to make the request now:

Both parties like to vote against debt limit hikes, when they can — makes for good TV ads. The problem this time is that they may never get a chance. The Washington Post‘s sharp congressional reporter Felicia Sonmez points out that Congress is actually out of town until January 17. [..]

Congress is still playing the unconstitutional game of pro forma sessions to prevent the president form making recess appointments. Technically, the resolution could be passed but it would have to be by unanimous consent and that is just not going to happen. So as Weigel notes unless some renegade congress critter demands a vote, even Congress keep from getting near the “burning wreckage” of this fight.

Cross posted from The Stars Hollow Gazette

Twist as the president’s supporters might with the “look over here” tactic, the National Defense Authorization Bill (NDAA) does not change any existing law that Barack Obama has interpreted to mean he has the power to throw your sorry butt in prison anywhere in the world for as long as he chooses. Or he can just declare you a terrorist without providing evidence and have you executed without due process. Ignoring the Authorization to Use Military Force (AUMF) that was recently renewed giving the president the authority to send in the military to fight that ubiquitous enemy “terror”, the Obama loyalists, keep pointing to section 1022 of the NDAA, the section that makes military detention presumptive for non-citizens but doesn’t foreclose military detention of US citizens, while completely ignoring section 1021, the section that affirms the President’s authority to indefinitely detain people generally. As Marcy Wheeler at emptywheel points out while the NDAA does not authorize indefinite detention for American citizens, it does not foreclose the possibility either:

The NDAA doesn’t do anything to exempt Americans from indefinite detention. And the reason it doesn’t-at least according to the unrebutted claims of Carl Levin that I reported on over a month ago-is because the Administration asked the Senate Armed Services Committee to take out language that would have specifically exempted Americans from indefinite detention.

   The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”  The Administration asked that this language be removed from the bill. [my emphasis]

So the effect is that (as Lawfare describes in detail) the bill remains unclear about whether Americans can be detained indefinitely and so we’re left arguing about what the law is until such time as a plaintiff gets beyond the Executive Branch’s state secrets invocations to actually decide the issue in court.

Nor did the amendment from Sen. Diane Feinstein clarify that point either, in fact, she may have codified it. So the only recourse is for some poor fool to have his civil liberties abrogated and try to fight in court without being allowed access to lawyers or courts. Those are some hurdles. Scott Horton, contributing editor at Harper’s magazine and New York attorney known for his work in human rights law and the law of armed conflict, discussed this with Keith Olbermann:

Constitutional expert and George Washington University law professor, Jonathan Turley, appeared on C-Span with his take on this discussion. He made it very clear that Obama says that he can assassinate American citizens living on U.S. soil:

(starting at 15:50):

President Obama has just stated a policy that he can have any American citizen killed without any charge, without any review, except his own. If he’s satisfied that you are a terrorist, he says that he can kill you anywhere in the world including in the United States.

Two of his aides just … reaffirmed they believe that American citizens can be killed on the order of the President anywhere including the United States.

You’ve now got a president who says that he can kill you on his own discretion. He can jail you indefinitely on his own discretion [..]

I don’t think the the Framers ever anticipated that [the American people would be so apathetic]. They assumed that people would hold their liberties close, and that they wouldn’t relax …

h/t Washington’s Blog

How quickly the president’s defenders forget Anwar al-Awlaki. Marcy points to the contortions of the law that Obama used to justify his assassination and then issued a “secret memorandum” which was conveniently “leaked” to New York Times reporter Charles Savage:

And, as Charlie Savage has reported, the legal justification the Administration invented for killing an American citizen in a premeditated drone strike consists of largely the same legal justification at issue in the NDAA detainee provisions.

           

The 2001 AUMF, which purportedly defined who our enemies are (though the NDAA more logically includes AQAP in its scope than the 2001 AUMF)

           

Hamdi, which held the President could hold an American citizen in military detention under the 2001 AUMF

           

Ex Parte Quirin, which held that an American citizen who had joined the enemy’s forces could be tried in a military commission

           

Scott v. Harris (and Tennesee v. Garner), which held that authorities could use deadly force in the course of attempting to detain American citizens if that person posed an imminent threat of injury or death to others

   In other words, Obama relied on substantially the same legal argument supporters of the NDAA detainee provisions made to argue that indefinite detention of American citizens was legal, with the addition of Scott v. Harris to turn the use of deadly force into an unfortunate side-effect of attempted detention.

There is no question that the Obama administration, by signing the NDAA, believes that it has the broad power to indefinitely detain and assassinate American citizens and guarantees that the next president will too.

The late George Carlin said it several years ago, “this country is circling the drain“.  

Cross posted from The Stars Hollow Gazette

Up Date: The Senate voted for final passage for the NDAA conference report (H.R. 1540). The vote was overwhelming: 86-to-13. It now goes to President Obama for his signature.

President Obama has not yet signed the NDAA. It is not to late to tell him to veto this bill which will have a devastating effect on civil liberties and give unprecedented powers to the military and the Executive Branch. Send Obama a strong message sign the petition and send a letter:

President Obama: Veto the National Defense Authorization Act!

VETO the National Defense Authorization Act

This House passed the revised National Defense Authorization Act 283 – 136 with 93 Democrats and 43 Republicans voting against the bill. The Senate is scheduled to take up the bill later today. It inevitably pass with an overwhelming majority and be sent to President Obama to sign. Since the White has stated that they are satisfied with the minor changes, Obama will sign the bill which, as Human Rights Watch said in a press release, “a historic tragedy for rights:

(Washington, DC, December 14, 2011) – US President Barack Obama’s apparent decision to not veto a defense spending bill that codifies indefinite detention without trial into US law and expands the military’s role in holding terrorism suspects does enormous damage to the rule of law both in the US and abroad, Human Rights Watch said today. The Obama administration had threatened to veto the bill, the 2012 National Defense Authorization Act (NDAA), over detainee provisions, but on December 14, 2011, it issued a statement indicating the president would likely sign the legislation.

“By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law,” said Kenneth Roth, executive director of Human Rights Watch. “In the past, Obama has lauded the importance of being on the right side of history, but today he is definitely on the wrong side.”

The far-reaching detainee provisions would codify indefinite detention without trial into US law for the first time since the McCarthy era when Congress in 1950 overrode the veto of then-President Harry Truman and passed the Internal Security Act. The bill would also bar the transfer of detainees currently held at Guantanamo into the US for any reason, including for trial. In addition, it would extend restrictions, imposed last year, on the transfer of detainees from Guantanamo to home or third countries – even those cleared for release by the administration.

(emphasis mine)

Glenn Greenwald at Salon wrote in his article this morning that there are “several persistent myths that circulating about this bill and President Obama’s position on it that need to be clarified once and for all:

First, while the powers this bill enshrines are indeed radical and dangerous, most of them already exist. That’s because first the Bush administration and now the Obama administration have aggressively argued that the original 2001 AUMF already empowers them to imprison people without charges, use force against even U.S. citizens without due process (Anwar Awlaki), and target not only members of Al Qaeda and the Taliban (as the law states) but also anyone who “substantially supports” those groups and/or “associated forces” (whatever those terms mean). [..]

With a couple of exceptions, this bill just “clarifies” – and codifies – the powers President Obama has already claimed, seized and exercised. [..]

This is the reason why civil libertarians have been so harshly critical of this President. It’s the reason civil liberties groups have been saying things like this even when saying them was so unpopular: it’s because Obama has, for three years now, been defending and entrenching exactly the detention powers this law vests, but doing it through radical legal theories, warped interprations (sic) of the 2001 AUMF, continuities with the Bush/Cheney template, and devotion to Endless War and the civil liberties assults (sic) it entails.

Second, as I documented at length last week, Obama’s veto threat was never about substantive objections to the detention powers vested by this bill; put another way, he was never objecting to the bill on civil liberties grounds. Obama, as I documented last week and again below, is not an opponent of indefinite detention; he’s a vigorous proponent of it, as evidenced by his contiuous (sic), multi-faceted embrace of that policy.

Obama’s objections to this bill had nothing to do with civil liberties, due process or the Constitution. It had everything to do with Executive power. The White House’s complaint was that Congress had no business tying the hands of the President when deciding who should go into military detention, who should be denied a trial, which agencies should interrogate suspects (the FBI or the CIA). Such decisions, insisted the White House (pdf), are for the President, not Congress, to make. In other words, his veto threat was not grounded in the premise that indefinite military detention is wrong; it was grounded in the premise that it should be the President who decides who goes into military detention and why, not Congress.

Third, the most persistent and propagandistic set of myths about President Obama on detention issues is that he tried to end indefinite detention by closing Guantanamo, but was blocked by Congress from doing so. It is true that Congress blocked the closing of Guantanamo, and again in this bill, Congress is imposing virtually insurmountable restrictions on the transfer of detainees out of that camp, including for detainees who have long ago been cleared for release (restrictions that Obama is now going to sign into law). But – and this is not a hard point to understand – while Obama intended to close Guantanamo, he always planned – long before Congress acted – to preserve Guantanamo’s core injustice: indefinite detention.

I need to say that again: long before, and fully independent of, anything Congress did, President Obama made clear that he was going to preserve the indefinite detention system at Guantanamo even once he closed the camp. That’s what makes the apologias over Obama and GITMO so misleading: the controversy over Guantanamo was not that about its locale – that it was based in the Carribean (sic) Ocean – so that simply closing it and then  re-locating it to a different venue would address the problem. The controversy over Guantanamo was that it was a prison camp where people were put in cages indefinitely, for decades or life, without being charged with any crime. And that policy is one that President Obama whole-heartedly embraced from the start.

All the evidence is that debunks the myth that Obama is concerned about the Constitution are there in Glen’s article.

Ironically today 220 years ago in 1791, Virginia became the last state to ratify the Bill of Rights. If the Senate passes this horrendous assault on our civil liberties, most of that historic document will be undermined. I don’t believe this that is what our Founding Fathers intended.

Crossposted from Antemedius

The White House on Wednesday said that Obama – after a week or so of making empty threats to try to pre-emptively defuse any tentative whimpering thoughts of  opposition among the peasants to it – has changed his mind and now announces that he will not veto the controversial 2012 National Defense Authorization Act (NDAA).

The president’s spokesman Carney Barker said lawmakers who crafted a compromise version from rival Senate and House versions of the legislation had addressed his reluctance about growing a pair and publicly taking ownership of the tough rules on detainees contained in Sections 1031 and 1032 of the act.

Sections 1031 and 1032 authorize the U.S. President to at his whim indefinitely detain and tie to their bedposts anyone anywhere he in his sole discretion decides to label as “enemy combatants” anywhere in the world without charge or trial forever, and have them be held in military custody stripped of all constitutional rights such as habeas corpus, the right to an attorney, the right to face their accusers, and other ridiculous rights and freedoms that he knows people in other parts of the world hate them for having.

Civil liberties advocates and others were furious at lawmakers for the broad scope of the provisions, which allows U.S. citizens on U.S. soil to be indefinitely detained without trial. Now the gloves are off and he can just grab anyone anytime off the street who happens – even without obvious reason – to excite him.

“Constitution be damned, we’re dealing with republicans badmouthing him in public all over town every chance they get like they think he’s their boyfriend” said Press Secretary Carney Barker, who also noted that “Unlike previous president Bush who kept his Dick in an office down the hall, Obama has been whispering sweet nothings and been publicly Dick-less since he was elected, but no longer. Being in bed with republicans has been making his head throb for three long years, and now he’s finally standing up!”.

Obama chief complaint had been that the goddamn piece of paper might continue to handcuff him as badly as another goddamn piece of paper so far has, keeping him as weak and powerless as he has been the past three years since his inauguration, but his handlers have finally convinced him that you just can’t go putting restrictions on the unitary executive, after all, or republicans might continue to bipartisanly call him “weak on national security”.  

Cross posted from The Stars Hollow Gazette

Welcome to the new America. With the “last minute” changes to the National Defense Authorization Act, the White House Press Sectary announced that President Obama will sign it contrary to his earlier threat to veto the bill. The bill would deny suspected terrorists, even U.S. citizens seized within the nation’s borders, the right to trial and subject them to indefinite detention.:

We have been clear that “any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.”  After intensive engagement by senior administration officials and the President himself, the Administration has succeeded in prompting the authors of the detainee provisions to make several important changes, including the removal of problematic provisions. While we remain concerned about the uncertainty that this law will create for our counterterrorism professionals, the most recent changes give the President additional discretion in determining how the law will be implemented, consistent with our values and the rule of law, which are at the heart of our country’s strength. This legislation authorizes critical funding for military personnel overseas, and its passage sends an important signal that Congress supports our efforts as we end the war in Iraq and transition to Afghan lead while ensuring that our military can meet the challenges of the 21st century.

As a result of these changes, we have concluded that the language does not challenge or constrain the President’s ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President’s senior advisors will not recommend a veto.  However, if in the process of implementing this law we determine that it will negatively impact our counterterrorism professionals and undercut our commitment to the rule of law, we expect that the authors of these provisions will work quickly and tirelessly to correct these problems.

Benjamin Wittes at Lawfare gives a quick and dirty analysis from conference report for the NDAA (pdf):

• The Senate has prevailed on the question of AUMF reaffirmation. The House bill, recall, would have contained a general reaffirmation of the AUMF, whereas the Senate language would only have reaffirmed that the existing AUMF authorized detention operations. The conference report has adopted the Senate approach. (See Sec. 1021.)
• A watered-down version of the Senate’s mandatory detention provision remains in the bill. (See Sec. 1022.) On the quickest of reads, it seems to apply only to those who are “members of” or “part of” (not supporters of) Al Qaeda and those associated forces that act in coordination with it or at Al Qaeda’s direction, not to the Taliban. It does not extend to citizens and applies to permanent resident aliens only for conduct in the United States to whatever extent the Constitution permits. And it contains the following new disclaimer: “Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless of whether such covered person is held in military custody.” To put it simply, what has emerged is mush.
• The conferees have adopted the Senate’s approach to codifying the Guantanamo review process. (See Sec. 1023.) The House had laid out detailed procedures to replace those in President Obama’s executive order. The Senate, by contrast, had merely required the promulgation of procedures that tweaked aspects of the executive order around the edges. The final bill, with very minor adjustments, looks like the Senate version.
• The Senate’s requirement for new procedures for status determinations for “long-term detention” has survived-with slight tweaks. (See Sec. 1024.) The House got inserted language that clarifies that these procedures-which include counsel and a hearing before a military judge-are not required for detainees who have access to habeas. And the definition of “long term detention” is left to the Defense Department. So the provision, depending on how the executive branch implements it, could be important or could apply to a null-set of detainees.
• The House bill’s requirement that the administration create a national security protocol governing detainee interactions with the outside world has survived-but with an important change. (See Sec. 1025.) The House version required a national security protocol for each detainee. The conference report, by contrast, requires a single national security protocol governing the Guantanamo population at large.
• The conference report unsurprisingly contains language forbidding the expenditure of fiscal year 2012 money building detention facilities in the United States to house Guantanamo detainees. (See Sec. 1026.)
• It also contains language forbidding the use of fiscal year 2012 money to bring Guantanamo detainees to the United States-including for trial. (See Sec. 1027.)
• It also contains the Senate version of the overseas transfer restrictions for Guantanamo detainees. (See Sec. 1028.)
• The House’s requirement for consultation between prosecutors and the Pentagon before initiating a terrorist prosecution has survived for foreign Al Qaeda figures and detainees abroad. (See Sec. 1029.)
• It also contains the uncontroversial clarification of the right to plead guilty in military commission capital trials. (See Sec. 1030.)
• The House’s prohibition of civilian trials is gone.

h/t David Dayen at FDL

Cross posted from The Stars Hollow Gazette

Well worth the 50 minutes.

Conversations host Harry Kreisler welcomes writer Glenn Greenwald for a discussion of his new book, “With Liberty and Justice for Some.” Greenwald traces his intellectual odyssey; analyzes the relationship between principle, power, and law; and describes the erosion of the rule of law in the United States. Highlighting the degree to which the legal system frees the powerful from accountability while harshly treating the powerless, Greenwald describes the origins of the current system, its repudiation of American ideals, and the mechanisms which sustain it. He then analyzes the media’s abdication of its role as watchdog role. He concludes with a survey of the the record of the Obama administration in fulfilling its mandate, argues for an alternative politics, and offers advice for students as they prepare for the future. Series: “Conversations with History”

h/t Michael Kwiatkowski @ Progressive Independence

Cross posted from The Stars Hollow Gazette

The latest shot in the war on women by the Obama administration goes to court. A federal court judge in Brooklyn, NY will hear challenge by the Center for Reproductive Rights to the constitutionality of Health and Human Services Secretary Kathleen Sebelius’ veto of the Federal Food and Drug Administrations decision to make the “morning after” pill. Plan B, available without a prescription thus making it accessible to teen age girls under the age of seventeen.

The Center for Reproductive Rights and other groups have argued that contraceptives are being held to a different and non-scientific standard than other drugs and that politics has played a role in decision making. Social conservatives have said the pill is tantamount to abortion.

Judge Edward Korman was highly critical of the government’s handling of the issue when he ordered the FDA two years ago to let 17-year-olds obtain the medication. At the time, he accused the government of letting “political considerations, delays and implausible justifications for decision-making” cloud the approval process.

In court papers prior to Wednesday’s hearing, Assistant U.S. Attorney Scott Landau said the government had complied with Korman’s orders by lowering the cutoff for over-the-counter sales of the drug from 18 to 17.

He said the plaintiffs “unfairly accuse FDA of bad faith and delay.”

And will wonders never cease. Mayor Michael Bloomberg raised his voice in support of making Plan B morning-after contraceptive available over the counter to young teenage girls. And just where did NYC’s speak-his-mind mayor do this? At a press conference in Queens, NY during an event promoting the President’s Council on Jobs and Competitiveness with none other than Kathleen Sebelius in attendance:

“It would be much better if these young girls didn’t get pregnant, but once that happens I think this should be available,” Hizzoner told reporters.

Speaking minutes later at the same event, Sebelius said: “I felt that the data presented, and justification for [making Plan B available to] all ages, did not match.” [..]

He called FDA director Peggy Hamburg, who served as the city’s Health Department commissioner during the Dinkins administration, a “first rate scientist.”

“I think her advice should be followed,” he said prior to the jobs event at LaGuardia Community College in Long Island City.

Cross posted from The Stars Hollow Gazette

This was not a good week for women’s reproductive freedom, especially young women of childbearing age under seventeen. The Secretary of Health and Human Services chose to strike down the Food and Drug Administration’s decision to make emergency contraception available without a prescription to people under 17, just as it is now to those who are 17 and older. It is very obvious that Secretary Kathleen Sebelius based her decision, not on the science that Plan B One-Step is safe, but on pure politics to avoid a confrontation with Catholic Bishops and so-called “pro-life” conservatives in an election year.

President Barack Obama’s statement that he did not intervene in the secretary’s decision is barely believable. What was even more insulting was his paternalistic statement regarding women being able to make their own reproductive decisions using his own daughters:

I will say this, as the father of two daughters. I think it is important for us to make sure that we apply some common sense to various rules when it comes to over-the-counter medicine.

And as I understand it, the reason Kathleen made this decision was she could not be confident that a 10-year-old or an 11-year-old go into a drugstore, should be able-alongside bubble gum or batteries-be able to buy a medication that potentially, if not used properly, could end up having an adverse effect.

And I think most parents would probably feel the same way.

No, Mr. President this is not “common sense”, this is a dangerous decision that will put thousands of young women at risk for unwanted pregnancies. As a parent, I know full well that children do not always confide in their parents when they have done something the parents will disapprove. Unlike you, sir, parents can’t watch their children 24/7 and children are not known for making good long term decisions, especially, when they are pressured by their peers.

Girls as young as 10 and 11 are having unprotected sex. As available as condoms are, kids don’t always use or have them and, oh, they do break. There is also the matter of rape and incest. Who do these young women turn to when they are too ashamed to seek help because of the backward attitudes about sex in this country?

For EC to be effective it must be taken within 72 hours of intercourse, the sooner the better. The direction for Plan B are simple and easily understood: Take one pill within 72 hours of unprotected sexual intercourse. Directions that most 10 or 11 year olds can easily understand.

So putting constraints to access by requiring a prescription from a doctor, which may not be either timely or possible, further put the young woman at risk. This is a rule that could adversely affect the rest of their lives, economically, educationally, familial and professionally. This is denying them control over their reproductive lives. As the father of two daughters, you might want to about this more carefully.

The President’s remarks were not just paternalistic but uniformed and sexist. I’ll get to the nonsense he spouted about over the counter drugs.

Let me say this, as a medical professional, there are millions of young women who take birth control, some for health issues, with no adverse side effects. Teenage pregnancy carries increased health risks to both mother and infant, even a higher risk of mortality.

The “morning after” pill has been available to all women in their menarche over the counter in Europe for years with little or no ill effect. Dr. Margaret Hamburg, the F.D.A.’s commissioner, in her statement disagreeing with Sec. Sebelius’ veto, stated the agency’s scientists “determined that the product was safe and effective in adolescent females, that adolescent females understood the product was not for routine use, and that the product would not protect them against sexually transmitted disease.”

Sebelius’ override has been described as “medically inexplicable”:

Sebelius’ decision is “medically inexplicable,” said Dr. Robert Block of the American Academy of Pediatrics, one of a number of major medical groups that contends over-the-counter access to emergency contraception would lower the nation’s high number of unplanned pregnancies.

Pediatricians say the morning-after pill is safe — containing a high dose of the same female hormone that’s in regular birth control pills — especially compared to some existing over-the-counter medicines.

“I don’t think 11-year-olds go into Rite Aid and buy anything,” much less a single pill that costs about $50, added fellow AAP member Dr. Cora Breuner, a professor of pediatric and adolescent medicine at the University of Washington.

Instead, putting the morning-after pill next to the condoms and spermicides would increase access for those of more sexually active ages “who have made a serious error in having unprotected sex and should be able to respond to that kind of lack of judgment in a way that is timely as opposed to having to suffer permanent consequences,” she said.

Sebelius may not have been forthcoming when she said that the drug’s manufacturer had failed to study whether girls as young as 11 years old could safely use Plan B. Teva Pharmaceuticals had funded a study that “tracked 11- to 17-year-olds who came to clinics seeking emergency contraception. Nearly 90 percent of them used Plan B safely and correctly without professional guidance, said Teva Vice President Amy Niemann.”

There are far riskier drugs that are on the shelves of drug stores that are available to teens that can do more harm than a one time use pill that you have to see the pharmacist to get. There are no known drug interactions, yet there are serious warnings about taking Tylenol, aspirin and non-steroidal anti-inflammatory drugs (Ibuprofen, Naprosyn) with a long list of over the counter and prescription drugs. There are diet pills and cough remedies that carry higher risks. A teen driving a car is more dangerous.

For the President to say that he was not involved in the process is laughable on its face. The Executive Branch is controlled by him. All of the cabinet members are answerable to him. No cabinet member would presume to make a decision of this magnitude with the political repercussions without his direct or implicit approval. The buck stops with him.

There is no medical argument that can be made to justify this. It is purely political, pandering to the far right factions that will never vote for Obama even if his were the only name on the ballot. It is feckless, cowardly and a slap in the face to 51% of the population of the United States.

 

Did you know Obama’s health care bill contained a $20 billion a year tax on the richest Americans? I didn’t until I stumbled onto a mention of this the other day, although writing about politics is my life and I knew enough to be angry at the gutting of a national public option. I asked a dozen other friends, half of whom work in health care or health care policy and most of whom are fellow political junkies. None of them knew either. If those who follow these issues intensely don’t know about something that all of us would cheer as a step toward getting the wealthiest to pay their fair share, most American voters sure aren’t going to know either.