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Emergency “Continuity Of Government” Plans Currently In Effect Suspend Normal Laws & Legal Process: Is This The REAL Reason For Government Spying On Americans?

In Uncategorized on June 11, 2013 at 4:54 pm

https://theoldspeakjournal.files.wordpress.com/2013/06/be4f0-shadow_govt_logo.jpgOldspeak: “The United States has been in a declared state of emergency from September 2001, to the present… That declared state of emergency has continued in full force and effect from 9/11 to the present. President Bush kept it in place, and President Obama has also… Simply by proclaiming a national emergency… President Bush activated some 500 dormant legal provisions, including those allowing him to impose censorship and martial law… Of the 54 National Security Presidential Directives issued by the [George W.] Bush Administration to date, the titles of only about half have been publicly identified. There is descriptive material or actual text in the public domain for only about a third. In other words, there are dozens of undisclosed Presidential directives that define U.S. national security policy and task government agencies, but whose substance is unknown either to the public or, as a rule, to Congress.”  –Washington’s Blog

“Viewed in the context of the government behaviours being exhibited: Indefinite detention, summary executive order executions,  general contempt for,  zealous prosecution of and jailing of journalists, suppression of dissent, state censorship, suspended rights to petition, assemble & speak, state propaganda, compromised system checks and balances, constant mass surveillance; this makes a lot of sense. We’re in living under a form of stealth martial law. How else would our government feel justified and within the law to do enact all these extra-constitutional measures? The “threat of terrorism” has been used to activate hundreds of little known “emergency” legal provisions. Without debate in pubic or  knowledge of the public… Why are we not entitled to know about our Shadow Government that seems to be making so much secret & anti-democratic policy?” –OSJ

By Washington’s Blog:

Are Emergency Plans Meant Only for Nuclear War the Real Justification for Spying?

To understand the scope and extent of government spying on all Americans – and the reasons for such spying – you have to understand what has happened to our Constitutional form of government since 9/11.

State of Emergency

The United States has been in a declared state of emergency from September 2001, to the present. Specifically, on September 11, 2001, the government declared a state of emergency. That declared state of emergency was formally put in writing on 9/14/2001:

A national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me as President by the Constitution and the laws of the United States, I hereby declare that the national emergency has existed since September 11, 2001 . . .

That declared state of emergency has continued in full force and effect from 9/11 to the present. President Bush kept it in place, and President Obama has also.

For example, on September 9, 2011, President Obama declared:

CONTINUATION OF NATIONAL EMERGENCY DECLARED BY PROC. NO. 7463

Notice of President of the United States, dated Sept. 9, 2011, 76 F.R. 56633, provided:

Consistent with section 202(d) of the National Emergencies Act, 50 U.S.C. 1622(d), I am continuing for 1 year the national emergency previously declared on September 14, 2001, in Proclamation 7463, with respect to the terrorist attacks of
September 11, 2001, and the continuing and immediate threat of
further attacks on the United States.

Because the terrorist threat continues, the national emergency declared on September 14, 2001, and the powers and authorities
adopted to deal with that emergency must continue in effect
beyond September 14, 2011. Therefore, I am continuing in effect for an additional year the national emergency that was declared on September 14, 2001, with respect to the terrorist threat.

This notice shall be published in the Federal Register and
transmitted to the Congress.

The Washington Times wrote on September 18, 2001:

Simply by proclaiming a national emergency on Friday, President Bush activated some 500 dormant legal provisions, including those allowing him to impose censorship and martial law.

The White House has kept substantial information concerning its presidential proclamations and directives hidden from Congress. For example, according to Steven Aftergood of the Federation of American Scientists Project on Government Secrecy:

Of the 54 National Security Presidential Directives issued by the [George W.] Bush Administration to date, the titles of only about half have been publicly identified. There is descriptive material or actual text in the public domain for only about a third. In other words, there are dozens of undisclosed Presidential directives that define U.S. national security policy and task government agencies, but whose substance is unknown either to the public or, as a rule, to Congress.

Continuity of Government

Continuity of Government (“COG”) measures were implemented on 9/11. For example, according to the 9/11 Commission Report, at page 38:

At 9:59, an Air Force lieutenant colonel working in the White House Military Office joined the conference and stated he had just talked to Deputy National Security Advisor Stephen Hadley. The White House requested (1) the implementation of continuity of government measures, (2) fighter escorts for Air Force One, and (3) a fighter combat air patrol over Washington, D.C.

Likewise, page 326 of the Report states:

The secretary of defense directed the nation’s armed forces to Defense Condition 3, an increased state of military readiness. For the first time in history, all nonemergency civilian aircraft in the United States were grounded, stranding tens of thousands of passengers across the country. Contingency plans for the continuity of government and the evacuation of leaders had been implemented.

The Washington Post notes that Vice President Dick Cheney initiated the COG plan on 9/11:

From the bunker, Cheney officially implemented the emergency continuity of government orders . . .

(See also footnotes cited therein and this webpage.)

CNN reported that – 6 months later – the plans were still in place:

Because Bush has decided to leave the operation in place, agencies including the White House and top civilian Cabinet departments have rotated personnel involved, and are discussing ways to staff such a contingency operation under the assumption it will be in place indefinitely, this official said.

Similarly, the Washington Post reported in March 2002 that “the shadow government has evolved into an indefinite precaution.” The same article goes on to state:

Assessment of terrorist risks persuaded the White House to remake the program as a permanent feature of ‘the new reality, based on what the threat looks like,’ a senior decisionmaker said.

As CBS pointed out, virtually none of the Congressional leadership knew that the COG had been implemented or was still in existence as of March 2002:

Key congressional leaders say they didn’t know President Bush had established a “shadow government,” moving dozens of senior civilian managers to secret underground locations outside Washington to ensure that the federal government could survive a devastating terrorist attack on the nation’s capital, The Washington Post says in its Saturday editions.

Senate Majority Leader Thomas A. Daschle (D-S.D.) told the Post he had not been informed by the White House about the role, location or even the existence of the shadow government that the administration began to deploy the morning of the Sept. 11 hijackings.

An aide to House Minority Leader Richard A. Gephardt (D-Mo.) said he was also unaware of the administration’s move.

Among Congress’s GOP leadership, aides to House Speaker J. Dennis Hastert (Ill.), second in line to succeed the president if he became incapacitated, and to Senate Minority Leader Trent Lott (Miss.) said they were not sure whether they knew.

Aides to Sen. Robert C. Byrd (D-W. Va.) said he had not been told. As Senate president pro tempore, he is in line to become president after the House speaker.

Similarly, the above-cited CNN article states:

Senate Majority Leader Tom Daschle, D-South Dakota, said Friday he can’t say much about the plan.

“We have not been informed at all about the role of the shadow government or its whereabouts or what particular responsibilities they have and when they would kick in, but we look forward to work with the administration to get additional information on that.”

Indeed, the White House has specifically refused to share information about Continuity of Government plans with the Homeland Security Committee of the U.S. Congress, even though that Committee has proper security clearance to hear the full details of all COG plans.

Specifically, in the summer 2007, Congressman Peter DeFazio, on the Homeland Security Committee (and so with proper security access to be briefed on COG issues), inquired about continuity of government plans, and was refused access. Indeed, DeFazio told Congress that the entire Homeland Security Committee of the U.S. Congress has been denied access to the plans by the White House.

(Or here is the transcript).

The Homeland Security Committee has full clearance to view all information about COG plans.

DeFazio concluded: “Maybe the people who think there’s a conspiracy out there are right”.

University of California Berkeley Professor Emeritus Peter Dale Scott points out that – whether or not COG plans are still in effect – the refusal of the executive branch to disclose their details to Congress means that the Constitutional system of checks and balances has already been gravely injured:

If members of the Homeland Security Committee cannot enforce their right to read secret plans of the Executive Branch, then the systems of checks and balances established by the U.S. Constitution would seem to be failing.

To put it another way, if the White House is successful in frustrating DeFazio, then Continuity of Government planning has arguably already superseded the Constitution as a higher authority.

Indeed, continuity of government plans are specifically defined to do the following:

  • Top leaders of the “new government” called for in the COG would entirely or largely go into hiding, and would govern in hidden locations
  • Those within the new government would know what was going on. But those in the “old government” – that is, the one created by the framers of the Constitution – would not necessarily know the details of what was happening
  • Normal laws and legal processes might largely be suspended, or superseded by secretive judicial forums
  • The media might be ordered by strict laws – punishable by treason – to only promote stories authorized by the new government

See this, this and this.

Could the White House have maintained COG operations to the present day?

I don’t know, but the following section from the above-cited CNN article is not very reassuring:

Bush triggered the precautions in the hours after the September 11 strikes, and has left them in place because of continuing U.S. intelligence suggesting a possible threat.

Concerns that al Qaeda could have gained access to a crude nuclear device “were a major factor” in the president’s decision, the official said. “The threat of some form of catastrophic event is the trigger,” this official said.

This same official went on to say that the U.S. had no confirmation — “and no solid evidence” — that al Qaeda had such a nuclear device and also acknowledged that the “consensus” among top U.S. officials was that the prospect was “quite low.”

Still, the officials said Bush and other top White House officials including Cheney were adamant that the government take precautions designed to make sure government functions ranging from civil defense to transportation and agricultural production could be managed in the event Washington was the target of a major strike.

As is apparent from a brief review of the news, the government has, since 9/11, continuously stated that there is a terrorist threat of a nuclear device or dirty bomb. That alone infers that COG plans could, hypothetically, still be in effect, just like the state of emergency is still in effect and has never been listed.

Indeed,  President Bush said on December 17, 2005, 4 years after 9/11:

The authorization I gave the National Security Agency after Sept. 11 helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities.

The activities I have authorized make it more likely that killers like these 9/11 hijackers will be identified and located in time.

And the activities conducted under this authorization have helped detect and prevent possible terrorist attacks in the United States and abroad.

The activities I authorized are reviewed approximately every 45 days. Each review is based on a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland.

During each assessment, previous activities under the authorization are reviewed. The review includes approval by our nation’s top legal officials, including the attorney general and the counsel to the president.

I have reauthorized this program more than 30 times since the Sept. 11 attacks [45 days times 30 equals approximately 4 years] and I intend to do so for as long as our nation faces a continuing threat from Al Qaeda and related groups.

The N.S.A.’s activities under this authorization are thoroughly reviewed by the Justice Department and N.S.A.’s top legal officials, including N.S.A.’s general counsel and inspector general.

In other words, it appears that as of December 2005, COG plans had never been rescincded, but had been continously renewed every 45 days.

In 2008, Tim Shorrock wrote at Salon:

A contemporary version of the Continuity of Government program was put into play in the hours after the 9/11 terrorist attacks, when Vice President Cheney and senior members of Congress were dispersed to “undisclosed locations” to maintain government functions. It was during this emergency period, Hamilton and other former government officials believe, that President Bush may have authorized the NSA to begin actively using the Main Core database for domestic surveillance [more on Main Core below]. One indicator they cite is a statement by Bush in December 2005, after the New York Times had revealed the NSA’s warrantless wiretapping, in which he made a rare reference to the emergency program: The Justice Department’s legal reviews of the NSA activity, Bush said, were based on “fresh intelligence assessment of terrorist threats to the continuity of our government.”

In 2007, President Bush issued Presidential Directive NSPD-51, which purported to change Continuity of Government plans. NSPD51 is odd because:

Beyond cases of actual insurrection, the President may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack, or to any ‘other condition.’ Changes of this magnitude should be made only after a thorough public airing. But these new Presidential powers were slipped into the law without hearings or public debate.

  • As a reporter for Slate concluded after analyzing NSPD-51:

I see nothing in the [COG document entitled presidential directive NSPD51] to prevent even a “localized” forest fire or hurricane from giving the president the right to throw long-established constitutional government out the window

  • White House spokesman Gordon Johndroe said that “because of the attacks of Sept. 11, 2001, the American public needs no explanation of [Continuity of Government] plans”

This is all the more bizarre when you realize that COG plans were originally created solely to respond to a decapitating nuclear strike which killed our civilian leaders.   (It was subsequently expanded decades before 9/11 into a multi-purpose plan by our good friends Dick Cheney and Donald Rumsfeld. See this, this and this.)

Does COG Explain the Pervasive Spying on Americans?

5 years ago, investigative reporter Christopher Ketcham disclosed the spying which was confirmed last week by  whistleblower Edward Snowden:

The following information seems to be fair game for collection without a warrant: the e-mail addresses you send to and receive from, and the subject lines of those messages; the phone numbers you dial, the numbers that dial in to your line, and the durations of the calls; the Internet sites you visit and the keywords in your Web searches; the destinations of the airline tickets you buy; the amounts and locations of your ATM withdrawals; and the goods and services you purchase on credit cards. All of this information is archived on government supercomputers and, according to sources, also fed into the Main Core database.

Given that Ketcham was proven right, let’s see what else he reported:

Given that Ketcham was right about the basics, let’s hear what else the outstanding investigative journalist said in 2008:

There exists a database of Americans, who, often for the slightest and most trivial reason, are considered unfriendly, and who, in a time of panic, might be incarcerated. The database can identify and locate perceived ‘enemies of the state’ almost instantaneously.” He and other sources tell Radar that the database is sometimes referred to by the code name Main Core. One knowledgeable source claims that 8 million Americans are now listed in Main Core as potentially suspect. In the event of a national emergency, these people could be subject to everything from heightened surveillance and tracking to direct questioning and possibly even detention.”

***

According to one news report, even “national opposition to U.S. military invasion abroad” could be a trigger [for martial law ].

***

When COG plans are shrouded in extreme secrecy, effectively unregulated by Congress or the courts, and married to an overreaching surveillance state—as seems to be the case with Main Core—even sober observers must weigh whether the protections put in place by the federal government are becoming more dangerous to America than any outside threat.

Another well-informed source—a former military operative regularly briefed by members of the intelligence community—says this particular program has roots going back at least to the 1980s and was set up with help from the Defense Intelligence Agency. He has been told that the program utilizes software that makes predictive judgments of targets’ behavior and tracks their circle of associations with “social network analysis” and artificial intelligence modeling tools.

***

A former NSA officer tells Radar that the Treasury Department’s Financial Crimes Enforcement Network, using an electronic-funds transfer surveillance program, also contributes data to Main Core, as does a Pentagon program that was created in 2002 to monitor antiwar protesters and environmental activists such as Greenpeace.

***

If previous FEMA and FBI lists are any indication, the Main Core database includes dissidents and activists of various stripes, political and tax protesters, lawyers and professors, publishers and journalists, gun owners, illegal aliens, foreign nationals, and a great many other harmless, average people.

A veteran CIA intelligence analyst who maintains active high-level clearances and serves as an advisor to the Department of Defense in the field of emerging technology tells Radar that during the 2004 hospital room drama, [current nominee to head the FBI, and former Deputy Attorney General] James Comey expressed concern over how this secret database was being used “to accumulate otherwise private data on non-targeted U.S. citizens for use at a future time.” [Snowden and high-level NSA whistleblower William Binney have since confirmed this] …. A source regularly briefed by people inside the intelligence community adds: “Comey had discovered that President Bush had authorized NSA to use a highly classified and compartmentalized Continuity of Government database on Americans in computerized searches of its domestic intercepts. [Comey] had concluded that the use of that ‘Main Core’ database compromised the legality of the overall NSA domestic surveillance project.”

***

The veteran CIA intelligence analyst notes that Comey’s suggestion that the offending elements of the program were dropped could be misleading: “Bush [may have gone ahead and] signed it as a National Intelligence Finding anyway.” But even if we never face a national emergency, the mere existence of the database is a matter of concern. “The capacity for future use of this information against the American people is so great as to be virtually unfathomable,” the senior government official says.

In any case, mass watch lists of domestic citizens may do nothing to make us safer from terrorism. Jeff Jonas, chief scientist at IBM, a world-renowned expert in data mining, contends that such efforts won’t prevent terrorist conspiracies. “Because there is so little historical terrorist event data,” Jonas tells Radar, “there is not enough volume to create precise predictions.”

***

[J. Edgar Hoover’s] FBI “security index” was allegedly maintained and updated into the 1980s, when it was reportedly transferred to the control of none other than FEMA (though the FBI denied this at the time).

FEMA, however—then known as the Federal Preparedness Agency—already had its own domestic surveillance system in place, according to a 1975 investigation by Senator John V. Tunney of California. Tunney, the son of heavyweight boxing champion Gene Tunney and the inspiration for Robert Redford’s character in the film The Candidate, found that the agency maintained electronic dossiers on at least 100,000 Americans that contained information gleaned from wide-ranging computerized surveillance. The database was located in the agency’s secret underground city at Mount Weather, near the town of Bluemont, Virginia. [One of the main headquarter of COG operations.] The senator’s findings were confirmed in a 1976 investigation by the Progressive magazine, which found that the Mount Weather computers “can obtain millions of pieces [of] information on the personal lives of American citizens by tapping the data stored at any of the 96 Federal Relocation Centers”—a reference to other classified facilities. According to the Progressive, Mount Weather’s databases were run “without any set of stated rules or regulations. Its surveillance program remains secret even from the leaders of the House and the Senate.”

***

Wired magazine turned up additional damaging information, revealing in 1993 that [Oliver] North, operating from a secure White House site, allegedly employed a software database program called PROMIS (ostensibly as part of the REX 84 plan). PROMIS, which has a strange and controversial history, was designed to track individuals—prisoners, for example—by pulling together information from disparate databases into a single record. According to Wired, “Using the computers in his command center, North tracked dissidents and potential troublemakers within the United States. Compared to PROMIS, Richard Nixon’s enemies list or Senator Joe McCarthy’s blacklist look downright crude.” Sources have suggested to Radar that government databases tracking Americans today, including Main Core, could still have PROMIS-based legacy code from the days when North was running his programs.

***

Marty Lederman, a high-level official at the Department of Justice under Clinton, writing on a law blog last year, wondered, “How extreme were the programs they implemented [after 9/11]? How egregious was the lawbreaking?” Congress has tried, and mostly failed, to find out.

***

We are at the edge of a cliff and we’re about to fall off,” says constitutional lawyer and former Reagan administration official Bruce Fein. “To a national emergency planner, everybody looks like a danger to stability. There’s no doubt that Congress would have the authority to denounce all this—for example, to refuse to appropriate money for the preparation of a list of U.S. citizens to be detained in the event of martial law. But Congress is the invertebrate branch.

***

UPDATE [from Ketcham]: Since this article went to press, several documents have emerged to suggest the story has longer legs than we thought. Most troubling among these is an October 2001 Justice Department memo that detailed the extra-constitutional powers the U.S. military might invoke during domestic operations following a terrorist attack. In the memo, John Yoo, then deputy assistant attorney general, “concluded that the Fourth Amendment had no application to domestic military operations.” (Yoo, as most readers know, is author of the infamous Torture Memo that, in bizarro fashion, rejiggers the definition of “legal” torture to allow pretty much anything short of murder.) In the October 2001 memo, Yoo refers to a classified DOJ document titled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.” According to the Associated Press, “Exactly what domestic military action was covered by the October memo is unclear. But federal documents indicate that the memo relates to the National Security Agency’s Terrorist Surveillance Program.” Attorney General John Mukasey last month refused to clarify before Congress whether the Yoo memo was still in force.

Americans have the right to know whether a COG program is  still in effect, and whether the spying on our phone calls and Internet usage stems from such COG plans. Indeed, 9/11 was a horrible blow, but it was not a decapitating nuclear strike on our leaders … so COG and the state of emergency should be lifted.

If COG plans are not still in effect, we have the right to demand that “enemies lists” and spying capabilities developed  for the purpose of responding to a nuclear war be discarded , as we have not been hit by nuclear weapons … and our civilian leaders – on Capitol Hill, the White House, and the judiciary – are still alive and able to govern.

In 2009 Obama Administration Committed To Creating An Unprecedented Level Of Openness In Government. In 2012 Government Censorship & Secrecy Hit All Time High

In Uncategorized on March 15, 2013 at 11:29 am

Oldspeak:“In this weeks edition of “Doublethink Theater” We have a quote from President Obama’s First day in office, January 21, 2009 “Transparency and the rule of law will be the touchstones of this presidency.”  Then this from his Memo on Transparency and Open Government: “My Administration is committed to creating an unprecedented level of openness in Government.  We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government. Government should be transparent.  Transparency promotes accountability and provides information for citizens about what their Government is doing.  Information maintained by the Federal Government is a national asset. My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use.” Fast forward to 2013 and a quote from Alexander Abdo, ACLU National Security Project Attorney: “We’ve seen a meteoric rise in the number of claims to protect secret law, the government’s interpretations of laws or its understanding of its own authority. In some ways, the Obama administration is actually even more aggressive on secrecy than the Bush administration”  And this from Federal Judge Colleen McMahon after ruling against the New York Times and ACLU in its request to see government records providing legal justification for its assassination program: “I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.” Yes. YET ANOTHER instance of Senator Obama saying and doing one thing & President Obama saying and doing THE EXACT OPPOSITE. After authoring such transparency promoting law as The Federal Funding Accountability and Transparency Act as a Senator, President Obama’s administration has censored & denied more requests for information than ever before, while taking much longer to respond to requests in general. Upholding “secret laws”. Flouting the constitution. Making legally unchallengeable secrecy claims. Prosecuting and jailing more government whistleblowers than any other President in history. While those who’ve engage in the fraud, waste, abuse and malfeasance whistleblowers have reported, continue to do so unmolested with no fear of reprisal;  in fact, in some egregious cases actually being rewarded with promotions.  Given these precedents, you can safely infer that next Administration will be even less transparent in its operations. Less responsive to the people.  America’s Inverted Corptalitarian Kleptocracy, will continue to grow, weakening representative democracy until the country collapses under the weight of rampant greed, criminality and corruption.  All in the name of “National Security”.
“2+2=5”.
“Ignorance Is Strength”.

By Jack Gillum & Ted Bridis @ The Associated Press:

The Obama administration answered more requests from the public to see government records under the Freedom of Information Act last year, but more often than it ever has it cited legal exceptions to censor or withhold the material, according to a new analysis by The Associated Press. It frequently cited the need to protect national security and internal deliberations.

The AP’s analysis showed the government released all or portions of the information that citizens, journalists, businesses and others sought at about the same rate as the previous three years. It turned over all or parts of the records in about 65 percent of all requests. It fully rejected more than one-third of requests, a slight increase over 2011, including cases when it couldn’t find records, a person refused to pay for copies or the request was determined to be improper.

The AP examined more than 5,600 data elements measuring the administration’s performance on government transparency since Obama’s election.

People submitted more than 590,000 requests for information in fiscal 2012 — an increase of less than 1 percent over the previous year. Including leftover requests from previous years, the government responded to more requests than ever in 2012 — more than 603,000 — a 5 percent increase for the second consecutive year.

When the government withheld or censored records, it cited exceptions built into the law to avoid turning over materials more than 479,000 times, a roughly 22 percent increase over the previous year. In most cases, more than one of the law’s exceptions was cited in each request for information.

The government’s responsiveness under the FOIA is widely viewed as a barometer of the federal offices’ transparency. Under the law, citizens and foreigners can compel the government to turn over copies of federal records for zero or little cost. Anyone who seeks information through the law is generally supposed to get it unless disclosure would hurt national security, violate personal privacy or expose business secrets or confidential decision-making in certain areas.

The AP’s review comes at the start of the second term for Obama, who promised during his first week in office that the nation’s signature open-records law would be “administered with a clear presumption: In the face of doubt, openness prevails.” The review examined figures from the largest federal departments and agencies. Sunday was the start of Sunshine Week, when news organizations promote open government and freedom of information.

White House spokesman Eric Schultz said in a statement that during the past year, the government “processed more requests, decreased the backlog, improved average processing times and disclosed more information pro-actively.” Schultz said the improvements “represent the efforts of agencies across the government to meet the president’s commitment to openness. While there is more work to be done, this past year demonstrates that agencies are responding to the president’s call for greater transparency.”

In a year of intense public interest over deadly U.S. drones, the raid that killed Osama bin Laden, terror threats and more, the government cited national security to withhold information at least 5,223 times — a jump over 4,243 such cases in 2011 and 3,805 cases in Obama’s first year in office. The secretive CIA last year became even more secretive: Nearly 60 percent of 3,586 requests for files were withheld or censored for that reason last year, compared with 49 percent a year earlier.

Other federal agencies that invoked the national security exception included the Pentagon, Director of National Intelligence, NASA, Office of Management and Budget, Federal Deposit Insurance Corporation, Federal Communications Commission and the departments of Agriculture, Commerce, Energy, Homeland Security, Justice, State, Transportation, Treasury and Veterans Affairs.

U.S. courts are loath to overrule the administration whenever it cites national security. A federal judge, Colleen McMahon of New York, in January ruled against The New York Times and the American Civil Liberties Union to see records about the government’s legal justification for drone attacks and other methods it has used to kill terrorism suspects overseas, including American citizens. She cited an “Alice in Wonderland” predicament in which she was expected to determine what information should be revealed but unable to challenge the government’s secrecy claim. Part of her ruling was sealed and made available only to the government’s lawyers.

“I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable Catch-22,” the judge wrote. “I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.”

The AP could not determine whether the administration was abusing the national security exemption or whether the public was asking for more documents about sensitive subjects. Nearly half the Pentagon’s 2,390 denials last year under that clause came from its National Security Agency, which monitors Internet traffic and phone calls worldwide.

“FOIA is an imperfect law, and I don’t think that’s changed over the last four years since Obama took office,” said Alexander Abdo, an ACLU staff attorney for its national security project. “We’ve seen a meteoric rise in the number of claims to protect secret law, the government’s interpretations of laws or its understanding of its own authority. In some ways, the Obama administration is actually even more aggressive on secrecy than the Bush administration.”

The Obama administration also more frequently invoked the law’s “deliberative process” exception to withhold records describing decision-making behind the scenes. Obama had directed agencies to use it less often, but the number of such cases had surged after his first year in office to more than 71,000. After back-to-back years when figures steadily declined, as agencies followed the president’s instructions, the government cited that reason 66,353 times last year to keep records or parts of records secret.

The Homeland Security Department, which includes offices that deal with immigration files, received more than twice as many requests for records — 190,589 new requests last year — as any other agency, and it answered significantly more requests than it did in 2011. Other agencies, including the State Department, National Transportation Safety Board and Nuclear Regulatory Commission performed worse last year. The State Department, for example, answered only 57 percent of its requests, down from 75 percent a year earlier.

U.S. Citizenship and Immigration Services drove a dramatic increase in the number of times DHS censored immigration records under exceptions to police files containing personal information and law enforcement techniques. The agency invoked those exemptions more than 136,000 times in 2012, compared with more than 75,000 a year earlier. Even though USCIS is not a law-enforcement agency, officials used the exceptions specifically reserved for law enforcement.

Under the law, a citizen can ask the government to reconsider its decision to censor or withhold materials. In the roughly 11,000 such instances last year where that happened, the government prevailed just under half the time. In about 3,400 cases the government turned over at least some additional information. These administrative appeals took about five months each.

The only recourse after such an appeal is an expensive lawsuit or to ask the government’s FOIA mediator, the U.S. Office of Government Information Services, to intervene.

The AP’s analysis also found that the government generally took longer to answer requests. Some agencies, such as the Health and Human Services Department, took less time than the previous year to turn over files. But at the State Department, for example, even urgent requests submitted under a fast-track system covering breaking news or events when a person’s life was at stake took an average two years to wait for files.

Journalists and others who need information quickly to report breaking news fared worse last year. The rate at which the government granted so-called expedited processing, which moves an urgent request to the front of the line for a speedy answer, fell from 24 percent in 2011 to 17 percent last year. The CIA denied every such request last year.

Under increased budget pressure across the government, agencies more often insisted that people pay search and copying fees. It waived costs in 59 percent of requests, generally when the amount was negligible or the release of the information is in the public interest, a decline from 64 percent of cases a year earlier. At the Treasury Department, which faced questions about its role in auto bailouts and stimulus programs during Obama’s first term, only one in five requests were processed at no charge. A year earlier, it granted more than 75 percent of fee waivers. The CIA denied every request last year to waive fees.

The 33 agencies that AP examined were: Agency for International Development, CIA, Agriculture Department, Commerce Department, Consumer Product Safety Commission, Defense Department, Education Department, Energy Department, Department of Health and Human Services, Department of Homeland Security, Department of Housing and Urban Development, Interior Department, Justice Department, Labor Department, State Department, Transportation Department, Treasury Department, Department of Veterans Affairs, Environmental Protection Agency, Federal Communications Commission, Federal Deposit Insurance Corporation, Federal Election Commission, Federal Trade Commission, NASA, National Science Foundation, National Transportation Safety Board, Nuclear Regulatory Commission, Office of Management and Budget, Office of the Director of National Intelligence, Securities and Exchange Commission, Small Business Administration, the Social Security Administration and the U.S. Postal Service.

Follow Jack Gillum on Twitter: http://twitter.com/jackgillum

 

 

U.S. Congress To Vote On Bill Drafted In Secret, Defining America As A “Battlefield”, Authorizing Indefinite Detention Of ANYONE Without Charge Or Trial By U.S. Military

In Uncategorized on November 28, 2011 at 11:29 am

Oldspeak:The Senate is gearing up for a vote on Monday or Tuesday that goes to the very heart of who we are as Americans. The Senate will be voting on a bill that will direct American military resources not at an enemy shooting at our military in a war zone, but at American citizens and other civilians far from any battlefield — even people in the United States itself.” –Chris Anders I gotta say this 21st century version of “1984” is pretty frickin awesome. All you can eat, drink, see and fuck, your own personal telescreen that you don’t loath but ADORE, no curfew (unless you choose to dissent in public spaces), The Ministry of Plenty (Wall Street) is firmly in control of the economy assisted by Big Brother (Political Class/Surveillance/National Security State), the Ministry of Truth is wildly successful and entertaining (Corporate TV, Print, Film & Radio Media), The Ministry of Peace (U.S. Military) has awesome commercials, and is busying itself prosecuting perpetual war in Eastasia and the Ministry Of Love has been outsourced to a vast network of black sites and secret prisons across the globe that you’ll never hear of (unless you’re designated a “domestic terrorist”, or some other threat to the state). Sure representative democracy has been replaced by corprocratic oligarchy. Sure your constitutional rights to speech, assembly and free press have been abridged. Sure you are subject to surveillance and spying. Sure you’re subject to search and seizure and indefinite detention without cause. Sure you can be assassinated at the whim of the president. But keep shopping, keep partying, keep watching TV, keep self-medicating, they’ll all make you feel GREAT. The timing of this legislation is curious at best. Coinciding with the birth of an ever expanding populist protest movement, the political class is moving to imprison indefinitely, any American who dares dissent. Did you know that the Department of Defense and FBI consider protest  as “low-level terrorism”? Read it and weep. “War Is Peace”

By Washington’s Blog

If You Thought Police Brutality Was Bad … Wait Until You See What Congress Wants to Do Next Week

The police brutality against peaceful protesters in BerkeleyDavisOakland and elsewhere is bad enough.

But next week, Congress will vote on explicitly creating a police state.

The ACLU’s Washington legislative office explains:

The Senate is gearing up for a vote on Monday or Tuesday that goes to the very heart of who we are as Americans. The Senate will be voting on a bill that will direct American military resources not at an enemy shooting at our military in a war zone, but at American citizens and other civilians far from any battlefield — even people in the United States itself.

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The Senate is going to vote on whether Congress will give this president—and every future president — the power to order the military to pick up and imprison without charge or trial civilians anywhere in the world.

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The power is so broad that even U.S. citizens could be swept up by the military and the military could be used far from any battlefield, even within the United States itself. The worldwide indefinite detention without charge or trial provision is in S. 1867, the National Defense Authorization Act bill, which will be on the Senate floor on Monday.

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I know it sounds incredible. New powers to use the military worldwide, even within the United States? Hasn’t anyone told the Senate that Osama bin Laden is dead, that the president is pulling all of the combat troops out of Iraq and trying to figure out how to get combat troops out of Afghanistan too? And American citizens and people picked up on American or Canadian or British streets being sent to military prisons indefinitely without even being charged with a crime. Really? Does anyone think this is a good idea? And why now?

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In support of this harmful bill, Sen. Lindsey Graham (R-S.C.) explained that the bill will “basically say in law for the first time that the homeland is part of the battlefield” and people can be imprisoned without charge or trial “American citizen or not.” Another supporter, Sen. Kelly Ayotte (R-N.H.) also declared that the bill is needed because “America is part of the battlefield.”

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The senators pushing the indefinite detention proposal have made their goals very clear that they want an okay for a worldwide military battlefield, that even extends to your hometown.

Part of an Ongoing Trend

While this is shocking, it is not occurring in a vacuum. Indeed, it is part of a 30 year-long process of militarization inside our borders and a destruction of the American concepts of limited government and separation of powers.

As I pointed out in May:

The ACLU noted yesterday [that] Congress is proposing handing permanent, world-wide war-making powers to the president – including the ability to make war within the United States:

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As I noted in 2008:

An article in the Army Times reveals that the 3rd Infantry Division’s 1st Brigade Combat Team will be redeployed from Iraq to domestic operationswithin the United States.

The unit will soon be under the day-to-day control of US Army North, the Army service component of Northern Command. The Army Times reports this new mission marks the first time an active unit has been given a dedicated assignment to Northern Command. The paper says the Army unit may be called upon to help with “civil unrest” and “crowd control”.

The soldiers are learning to use so-called “nonlethal weapons” designed to subdue unruly or dangerous individuals and crowds.

This violates posse comitatus and the Constitution. But, hey, we’re in a “national emergency”, so who cares, right?

(We’re still in a declared state of national emergency).

noted a couple of months later:

Everyone knows that deploying 20,000 troops on U.S. soil violates Posse Comitatus and the Constitution.

And everyone understands that staging troops within the U.S. to “help out with civil unrest and crowd control” increases the danger of overt martial law.

But no one is asking an obvious question: Does the government’s own excuse for deploying the troops make any sense?

Other Encroachments On Civil Rights Under Obama

As bad as Bush was, the truth is that, in many ways, freedom and constitutional rights are under attack even more than during the Bush years.

For example:

Obama has presided over the most draconian crackdown on leaks in our history — even more so than Nixon.

As Marjorie Cohen – professor at Thomas Jefferson School of Law and past president of the National Lawyers Guild – writes at the American Constitution Society for Law and Policy:

Army Pfc. Bradley Manning, who is facing court-martial for leaking military reports and diplomatic cables to WikiLeaks, is being held in solitary confinement in Quantico brig in Virginia. Each night, he is forced to strip naked and sleep in a gown made of coarse material. He has been made to stand naked in the morning as other inmates walked by and looked. As journalist Lance Tapley documents in his chapter on torture in the supermax prisons in The United States and Torture, solitary confinement can lead to hallucinations and suicide; it is considered to be torture. Manning’s forced nudity amounts to humiliating and degrading treatment, in violation of U.S. and international law.

Nevertheless, President Barack Obama defended Manning’s treatment, saying, “I’ve actually asked the Pentagon whether or not the procedures . . . are appropriate. They assured me they are.” Obama’s deference is reminiscent of President George W. Bush, who asked “the most senior legal officers in the U.S. government” to review the interrogation techniques. “They assured me they did not constitute torture,” Bush said.

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After State Department spokesman P.J. Crowley criticized Manning’s conditions of confinement, the White House forced him to resign. Crowley had said the restrictions were “ridiculous, counterproductive and stupid.” It appears that Washington is more intent on sending a message to would-be whistleblowers than on upholding the laws that prohibit torture and abuse.

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Torture is commonplace in countries strongly allied with the United States. Vice President Omar Suleiman, Egypt’s intelligence chief, was the lynchpin for Egyptian torture when the CIA sent prisoners to Egypt in its extraordinary rendition program. A former CIA agent observed, “If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear – never to see them again – you send them to Egypt.” In her chapter in The United States and TortureNew Yorker journalist Jane Mayer cites Egypt as the most common destination for suspects rendered by the United States.

As I pointed out in March:

Former constitutional law teacher Glenn Greenwald says that – in his defense of state secrecy, illegal spying, preventative detention, harassment of whistleblowers and other issues of civil liberties – Obama is even worse than Bush.

Indeed, Obama has authorized “targeted assassinations” against U.S. citizens. Even Bush didn’t openly do something so abhorrent to the rule of law.

Obama is trying to expand spying well beyond the Bush administration’s programs. Indeed, the Obama administration is arguing that citizens should never be able to sue the government for illegal spying.

Obama’s indefinite detention policy is an Orwellian nightmare, which will create more terrorists.

Furthermore – as hard as it is for Democrats to believe – the disinformation and propaganda campaigns launched by Bush have only increased under Obama. See this and this.

And as I pointed out last year:

According to Department of Defense training manuals, protest is considered “low-level terrorism”. And see thisthis and this.

An FBI memo also labels peace protesters as “terrorists”.

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A 2003 FBI memo describes protesters’ use of videotaping as an “intimidation” technique, even though – as the ACLU points out – “Most mainstream demonstrators often use videotape during protests to document law enforcement activity and, more importantly, deter police from acting outside the law.” The FBI appears to be objecting to the use of cameras to document unlawful behavior by law enforcement itself.

The Internet has been labeled as a breeding ground for terrorists, with anyone who questions the government’s versions of history being especially equated with terrorists.

Government agencies such as FEMA are allegedly teaching that the Founding Fathers should be considered terrorists.

The government is also using anti-terrorism laws to keep people from learning what pollutants are in their own community. See thisthisthis and this.

Claims of “national security” are also used to keep basic financial information – such as who got bailout money – secret. That might not bode for particularly warm and friendly treatment for someone persistently demanding the release of such information.

The state of Missouri tried to label as terrorists current Congressman Ron Paul and his supporters, former Congressman Bob Barr, libertarians in general, anyone who holds gold, and a host of other people.

And according to a law school professor and former president of the National Lawyers Guild, pursuant to the Military Commissions Act:

Anyone who … speaks out against the government’s policies could be declared an “unlawful enemy combatant” and imprisoned indefinitely. That includes American citizens.

Obama has refused to reverse these practices.

There Is Still a Chance to Stop It

The ACLU notes that there is some hope:

But there is a way to stop this dangerous legislation. Sen. Mark Udall (D-Colo.) is offering the Udall Amendment that will delete the harmful provisions and replace them with a requirement for an orderly Congressional review of detention power. The Udall Amendment will make sure that the bill matches up with American values.

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The solution is the Udall Amendment; a way for the Senate to say no to indefinite detention without charge or trial anywhere in the world where any president decides to use the military. Instead of simply going along with a bill that was drafted in secret and is being jammed through the Senate, the Udall Amendment deletes the provisions and sets up an orderly review of detention power. It tries to take the politics out and put American values back in.

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