Truthout

Obama Vs. Snowden: Parsing the Presser

Thursday, 22 August 2013 00:00 By Rob Hager, SpeakOut | News Analysis
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"I believe that liberty is the only genuinely valuable thing that men have invented, at least in the field of government, in a thousand years. I believe that it is better to be free than to be not free, even when the former is dangerous and the latter safe" 

-HL Mencken (1927)

Obama's recent media counteroffensive against Edward Snowden is unquestionably a tribute to Edward Snowden's ability to poke the empire's all-seeing eye while managing to secure an offshore sanctuary where he might continue his premeditated acts of citizenship. Snowden's success and worldwide popularity for his David and Goliath struggle on behalf of hisand apparently the ACLU's, version of the Constitution has required the propagandist-in-chief to publicly enter the fray. Obama knows if Snowden ever does face a criminal jury, the trial will be very much a popularity contest between Obama and Snowden, with high-stakes for both.

Since Snowden's revelations, Obama's approval ratings have receded back to the sub-50% range where they lingered after Obama activated his inner Republican early in his first term, to the surprise of former supporters. The Romney bump around election time last year did not last. It succumbed to the ongoing surveillance state scandal, temporizing on the Trayvon Martin and Voting Rights cases, and such nagging Republican questionsas those about Benghazi. The week of his press conference, Gallup posted 44% approval for Obama which was the same as Bush II, and the lowest of more than a half century of presidents, except Nixon, at comparable points in their presidencies.

So, on Friday, August 9, 2013 Obama emerged from his scripted safety zone to defend his legacy at one of his rare solo press conferences, the first since Snowden went to Hong Kong. The presser was Obama's turn to put some points on the board which Snowden has mostly dominated. It was Obama's opening statement, preceded by shutting down Snowden's email server the day before and fluffing a practice performance on Jay Leno a couple days before that. The previous week, a seemingly concocted embassy terrorism alert for what Obama could bill as "recent … threats to our nation," punctuated by a Cold-War-evoking snub of Putin, set the right fearful crisis undertone for national security gravitas to cushion his appearance before the press, without actually having to mention Obama's only real war. Remember? The one defending a corrupt government in Afghanistan that  2/3 of Americans now think was not worth fighting.

Taking the offensive, Obama scored his intended goal by impugning Snowden's motives, in effect pre-judging Snowden's legal defense by saying, "I don’t think Mr. Snowden was a patriot." "Quite a statement," respondedAmy Davidson for the New Yorker, "about a man [Obama] has never spoken to, and who has not yet been convicted of anything." In his personal war on whistle-blowers Obama has previously taken this executive-action "convict first in public, try later in private" approach. Obama was criticized for doing the same to Bradley Manning, though the Commander-in-Chief did get his message through to his troops to deliver theconstitutionally illegitimate court-martial Espionage Act conviction and recantation that he wanted. Obama's "unlawful command influence" of this same sort has been criticized in other contexts.

Borrowing this page from his Manning victory manual to attack Snowden personally, Obama joined other politicians who, as Snowden's father has said, "poisoned the well, so to speak, in terms of a potential jury pool." That was Obama's broader purpose. An acquittal of Snowden, whether in court or by its equivalent by the jury of public opinion, would be tantamount to an indictment of Obama. As Jonathan Turley explains:"After all, the fear seems to be that Snowden has to be a traitor or Obama would look like a tyrant." This is a zero sum game: either the Constitution is still operative under Obama, or it is not.

Snowden's core legal defense is the truth of his patriotic intent: placing his loyalty to the Constitution he loves above extremely strong personal considerations. Only a jury can decide if his patriotic motive is constitutionally well-founded in privacy values they find to be objectively reasonable and whether hisprosecution itself is a violation of the Constitution.

Obama's political career depends upon his own fans judging him by his words, not his deeds. Those fans should be prepared to symmetrically grant Snowden the same indulgence. Snowden's only expressed motivesare patriotic. He says: "I will be satisfied if the federation of secret law, unequal pardon and irresistible executive powers that rule the world that I love are revealed even for an instant. … I don't want public attention because I don't want the story to be about me. I want it to be about what the US government is doing. … I really want the focus to be on these documents and the debate which I hope this will trigger among citizens around the globe about what kind of world we want to live in. My sole motive is to inform the public as to that which is done in their name and that which is done against them." These words seem to match Snowden's deeds, even if we do not know this former CIA and NSA contract employee well.

Is the problem that Obama does not know patriotism when he sees it? It isn't Snowden who is accused of violating the oath to support the Constitution that he swore when joining the military and the CIA. Obama is the one wrapping his arms around acts that many Americans justifiably consider to be fundamental violations of the Constitution and to advance the essential practice of a totalitarian police state that the Constitution is designed to prevent.

Obama may have some other private definition of what makes a patriot. But you cannot love the country if you do not above all love and support the Constitution that created and defines it. Without the Constitution, the USA is just a failed experiment. If Obama wants to apply another test, then Obama needs to amend the Constitution to change the oaths that apply to him, as well as to the military and all other state and federal executive, legislative and judicial officers. The oath has not changed since Nixon was impeached for "violation of his constitutional oath faithfully to execute the office of President of the United States, and to the best of his ability preserve, protect and defend the Constitution of the United States, and … [being] repeatedly engaged in conduct violating the constitutional rights of citizens."

Obama does not even try to suggest what other motivation Snowden could have. For many people, it is Obama's own patriotism, his fidelity to the Constitution - let alone truth - that is far more credibly in question than Snowden's.

That leads to the defensive portion of Obama's August 9 performance. Obama announced that "at my direction the Department of Justice will make public the legal rationale for the government's collection activities." This unsigned and unsourced Administration White Paper document is embraced by Obama as his legal defense against the evidence provided by Snowden's revelations that Obama has blatantly violated the Fourth Amendment. The White Paper's long-term secret status is understandable because it does not present a strong legal defense, and it does not even have a John Yoo willing to commit professional suicide by putting his name on it. Its arguments are predictably weak, as explained by this author in a previous article, because Obama's case is weak. That is why Obama adopts the Vince Lombardi tactic: "The best defense is a good offense," known in propagandist discourse as the "attack the messenger ploy."

  

The oaths

Obama should remember his oath of office, having recited it almost three times. But in the offensive portion of his August 9 performance Obama starts out by spinning his way out of that oath, misstating the paramount responsibility it imposes on him. Obama redraws constitutional priorities by defining "[his] number one responsibility as commander in chief, and that's keeping the American people safe."

There is no separate constitutional oath for the office of "commander in chief." The first and transcendent responsibility to which Obama is sworn, both as president and in his subsidiary role as "commander in chief," other than generally carrying out his presidential duties, is: "to the best of my Ability, preserve, protect and defend the Constitution of the United States." Art. II, Sec. 1, Cl 8. This is in addition to the lesser oath that Snowden and Manning also took to "support this Constitution." Art. VI (3). The Constitution is not just an abstraction like the flag that can be ascribed subjective content. It is the playbook for maintaining democracy, or a "republic," as it was called at the time of the Constitution's signing.

Safety from terrorism is the threat that Obama prioritizes over his oath of office, since the Commander avoids any mention of, and is certainly holding no press conferences on, his unpopular, uselessly escalated, war in Afghanistan that has killed 1,629 Americans on his watch. If there is an acceptable definition of terrorism, it is "criminal acts calculated to provoke a state of terror in the general public," i.e., a tactic limited to violence against soft civilian targets. By definition, then, those who would use the tactic of terrorism against civilians, as distinct from the tactic of regular or irregular warfare against governments, cannot themselves inflict any damage on the Constitution, any more than other private localized crimes of violence can threaten the Constitution. Only fear of terrorism could do that. So defending against the crimes of terrorism is simply irrelevant to the president's paramount obligation to defend the Constitution, unless it is used, as Obama does, to justify fearful undermining of the Constitution. To apply FDR's precept that warned against "nameless, unreasoning, unjustified terror," it is the fear of terrorism that must be avoided in order to defend and advance the Constitution.

Fighting the criminal activity upon which terrorism, as distinct from war, is predicated falls mainly within the general police powers of the states. In our federal system, the States, not Obama, have responsibility for the general public safety. The Constitution deliberately did not give the federal government such general police powers over crime not amounting to an "insurrection" for the very reason that it could be used by a powerful central government to establish a national tyranny, a federal police state - just as Obama is doing.

Obama's constitution is designed for a country that stirs up enough anger abroad to create sufficient domestic fear of the other in the "homeland" that the people, no matter how objectively powerful and capable of self-defense, will nevertheless overreact by allowing seizure of centralized police powers and sacrificing the transparency required to sustain a democracy. James Madison, "father" of the U.S. Constitution, had sharp ripostes to both prongs of this strategy for imposing tyranny, warning that, "popular government without popular information ... is but a prologue to a farce, or a tragedy, or perhaps both" and that "[i]f Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy."

The direction of this farce by a former Senior Lecturer on the Constitution from the University of Chicago hasraised legitimate questions about his actual bonds to the principles he has sworn numerous times to support. It is worth remembering that the only mention of "Safety" in the Constitution is found under the powers of Congress, not of the President, in the habeas corpus suspension clause. Art. I, Sec. 9 (2). The only other similar concessions of liberty that the Constitution makes to safety is, in time of war, to waive indictment by Grand Jury of active duty military, Amend. V, and to permit, according to law, the somewhat archaic-sounding quartering of soldiers "in any house."(1) Amend. III.

The Constitution, by mention of "the common defense" in its preamble, does not elevate that objective above its other listed fundamental goals of justice, general welfare and the blessings of liberty. The Declaration of Independence did not announce a new government dedicated to "life, liberty, and the pursuit of safety."  It did not, in Lincoln's immortal words, bring "forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created" safe. Pursuit of safety as an ultimate goal is for cowards. There would have been no Revolution against tyranny, no Declaration, no Constitution, no abolition of slavery nor struggle for equal rights, no WWII against fascism, and no country worth loving had the founders and later patriots prioritized their own safety. Patriots like Snowden and Manning did not prioritize their own safety. A free people does not prioritize safety if those people want to retain their liberty.

The Constitution was written for a nation embarked on a brave new mission in pursuit of self-determined justice, equality, and the blessings of liberty. Having defeated the most powerful empire in the world, the founders were less worried about the ability of a free people to defend themselves against enemies from without than about preventing enemies from within, especially those using their own government, from subverting the unique republic they had created. They wrote a charter that provides a road-map for preventing tyranny by restraining government powers, not, by expansion of those powers to chase a fantasy concept of "100% safety." Even while the new country remained vulnerable to attack by the world's most powerful empire, one of those restraints on government embodied George Washington's warning against standing armies by limiting military appropriations to two years. Art. I, Sec 8 (12). Obama's revised Constitution for cowards – where somehow "safety" from the political paranoia of a perpetual threat of terrorism becomes the "number one responsibility" of its chief executive – allows tyranny to flourish, fertilized by often-manufactured fears of remote, little understood threats.

Obama's performance on August 9 framed a defining choice at a "truly unique moment in America's constitutional history." For those who prefer to think of Obama as one who is feckless or incompetent in carrying out his true values rather than a fraud, this is the occasion to pause and study Obama's August 9 performance in some detail. Upon such appraisal, Obama's deception appears so indisputable that it cannot be attributed to mere error and incompetence instead of deliberate and polished prevarication on behalf of tyranny. Since Obama relies upon his likability and perceived honesty to support his popularity, public understanding of Obama's modus operandi by focusing a lens on this single public performance could cause his ratings to continue their decline into Nixonian territory.

A step ahead or still behind?

Couched in the terms of all tyrants, "we're here to protect you," Obama's press conference tried to spin to himself the credit for making NSA spying more transparent. Since Edward Snowden already accomplished that, Obama, performed a major tactical maneuver by claiming, with the assistance of NSA parsing, that he had "called for a thorough review of our surveillance operations" on May 23, 2013, just before Snowden blew the whistle on them. But his supposed "call" occurred three days after Snowden left for Hong Kong, at least weeks after Snowden had started gathering documents, and many months after Snowden started corresponding with journalist Glenn Greenwald and with Laura Poitras, who was herself under Obama's close surveillance at the time. Are we to believe that Obama's vast, expensive, algorithm-driven Panopticon empire was totally clueless about a defector from inside the surveillance state who had already run off with a good portion of his state secrets? Maybe. If so, it shows just how useless his surveillance empire is for the purpose that Obama claims it is intended.

Obama impugns Snowden's motives without providing any evidence why we should accept such a cynical view of what, by all appearances, is an exemplary demonstration of citizenship. Obama speaks of "Mr. Snowden's leaks," repeatedly evoking the political conniving associated with the "L" word while altogether avoiding the correct, principled, legal term for informing the public about unlawful government conduct: "whistle-blowing."

The more authentic question of motive is the one posed, not by Obama, but by Snowden, when he describes the aim of Obama's spy system as one "which is done against th[e public]." Obama's Panopticon stopped neither the Boston bombers' act of terror nor what might have been a massive espionage operation, had it been accomplished by one with different motives than Snowden's. Obama has yet to prove through actual criminal prosecutions that his constitutional violations have stopped any such conduct whatever, though he has been sharing surveillance data with the DEA and IRS who have been lying and committing contempt of court in using that data against Americans for illegal domestic law enforcement purposes.

These failures and the absence of any known successes suggests that the system might be motivated by an entirely different design and purpose than catching spies and terrorists. These failures tend to support the allegation that Obama's surveillance state is actually designed to suppress democracy and oppress citizens by gathering evidence the government can use against them at its discretion, as the Orwellian thought police of any Stasi state would aspire to do. Subjecting elected officials to blackmail on the basis of such illegal evidence could undermine representative democracy as effectively as legalized influence peddling has already done.

There is considerable evidence that the design of the system actually prevents detecting Obama's "needle in the haystack" or taking the drink from the massive surveillance fire-hose needed to stop such occasional real threats. Obama's system is too obsessed with the altogether different objective of possessing the limitless power of intimidation by comprehensive surveillance of the people themselves, while hiding from the people what their government is doing with that power.

If Obama's May 23d speech had in fact advocated the immediate "thorough review" of this dysfunctional and illegal system that he claims he did, there might be ground for suspicion about the coincidental timing of such an announcement, as suggested above. A legitimate question could have been premised on whether, after five years of apparent neglect of the issue by Obama - including a refusal to investigate violations committed by his predecessor - the system was working, Snowden detected, and Obama therefore intentionally anticipated Snowden's revelations by getting out in front with a proposal for serious reform. But the vast gulf that normally resides between Obama's word and deed, in the style of the friendly-fascist, velvet-draped tyranny he represents, always requires fact checking for the big lie. As Der Spiegel cautioned about Obama: "Soft totalitarianism is still totalitarianism."

So when Obama claimed on August 9, "I called for a thorough review of our surveillance operations before Mr. Snowden made these leaks," it does not surprise to find no such phrasing in his May 23, 2013 speech at the National Defense University where Obama claims he made such a proposal. That would have been news. It was not. Instead, what we do find is the same tired equivocating platitudes that we now know have no relationship to Obama's conduct, unless as a possible indication of what he will most likely not do.

One writer describes Obama's trademark dance: "giving a shout to the 'left' and jumping to the 'right.'" None but the most naïve of those who have watched this dance for five years retain any hope that Obama's verbal acknowledgments of constitutional values and limits bear any relationship to his actual behavior, which includes record-setting Espionage Act prosecutions, assassination by drone of Americans without due process, seizing NDAA authority for the indefinite detention of Americans, dragnet wiretapping of AP, threatening to send New York Times journalist James Risen to jail, attempted indirect intimidation of Glen Greenwald, and so forth.

The false dichotomy, or false dilemmafallacy is another Obama trademark form of evasion about everything from drone policy and climate change to his first response to Snowden: "You can't have 100% security and also then have 100% privacy." So his mention of civil liberties on the one hand of a false dilemma has no bearing on his typical use of the iron fist to crush civil liberties with the other. The rare exception to Obama's anti-civil liberties record is reserved for rights related to identity issues, which do not implicate the profits and power of his corporate sponsors. Snowden would have been uncharacteristically naïve to think that any verbal "call" by Obama for protection of rights would actually lead to any significant implementing action to protect the Fourth Amendment.

What Obama actually said in his May 23d NDU speech shared elements of both these tactics, plus a third propaganda technique discussed in detail below. But it contains no reference to a new "thorough review" mechanism. He said: "in the years to come, we will have to keep working hard to strike the appropriate balance between our need for security and preserving those freedoms that make us who we are. That means reviewing the authorities of law enforcement so we can intercept new types of communication, but also build in privacy protections to prevent abuse. … And that means... having a strong privacy and civil liberties boardto review  those issues where our counter-terrorism efforts and our values may come into tension." (emphasis added)

This statement speaks of no new directions, no heightened concern about the 4th Amendment, but rather continuity: "we will have to keep working hard," not do anything different. One purpose of "review" is "so we can intercept" more information - not less - by stricter observance of "our values." And then there is the matter of "having," not creating, a "privacy and civil liberties board."

Obama's transparency proposals

 

1. A New Board? The "privacy and civil liberties board" mentioned by Obama on May 23d was, on first impression, also listed among Obama's four point plan announced August 9 as the gist of the "additional reforms" for the "thorough review" he says he had previously "called for." This plan is Obama's alternative to Snowden's adoption of Madison's "public information" and Justice Brandeis' disinfection by sunlight approaches to maintaining democracy. At the presser Obama claimed: "we're forming a high level group of outside experts." Since he claimed he had already "called for" this reform in his NDU speech, it could only refer to the "privacy and civil liberties board" he mentioned in that speech. The NSA helpfully quotes this passage from the speech for the purpose of imputing to it this very intention, in case it might otherwise be missed.

The truth is that long before the NDU speech Obama had already formed such a group or board. He had appointed government officials who comprise a "high level" ex officio "group" of presumed "experts," to "strengthen

protections for the rights of Americans in the effective performance of national security and homeland security functions." This "President’s Board on Safeguarding Americans’ Civil Liberties" created by George W. Bush'sExecutive Order 13353 of August 27, 2004 included many experts who, before they were inside Obama's administration, were "outside" the previous Bush administration, which was caught in the act of similarly illegal global surveillance.

Obama's appointments of all the officials on this Board already gave Obama the capacity for his own "high level" experts to make the "thorough review of our surveillance operations" that Obama claims he "called for ... before Mr. Snowden made these leaks." This Board has not prevented Obama from outdoing even Bush in the continued construction of his surveillance state. The question is why did Obama not use this board rather than call for a new one?

Most likely Obama's May 23d comment referred to a second "Privacy and Civil Liberties Oversight Board" that Congress established in 2004 for the same purpose as Bush's Board, so Congress could also buy some cover. Obama virtually named this second Board in his NDU speech. In his August 9 presentation, Obama again expressly mentioned asking this Board "to review where our counterterrorism efforts and our values come into tension." In his May 23d NDU speech, Obama mentioned this very same assignment in these same words when he refers to it by its official name, reinforcing the evidence that the earlier reference was also to this same existing board..

Obama refers to wanting a group of "outside" experts. The ex officio board may not have satisfied that criteria, though it satisfied all his other criteria. Under current law, this PCLO Board is already "established as an independent agency within the executive branch." The Board is comprised of experts who, unlike the ex officioBoard, are required by law not to be government officials. They also have broad legal powers to do the same task that Obama wants to "form" a new such Board to do. Indeed, the PCLO Board should already be doing what Obama claims he "asked" it to do. The law requires that the "Board shall – (1) analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; and

(2) ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism." See Public Law 110–53, Aug. 3, 2007, Secs. 801-803.

Thus, what Obama claims as his own new proactive initiative for "review" was already commanded by Congress nearly a decade ago as an institutional process.

Of course the existence of this second "Board," with all Obama appointees, has had no discernible deterrent effect on Obama's constitutional violations, any more than it had under Bush. So even though he has already appointed exactly the same kind of Board that he suggests he is now newly "forming," this "independent Board" fig leaf / rubber stamp combination is such a tried and true propaganda tool that Obama returns to drink from this same well of deception from which others drank before him.

From his August 9 statement alone it appeared that Obama would either redundantly recreate such a group or just pretend that he is newly creating such a "Board," to use his May 23d term. His revised August 9th terminology, "group," is used to disguise the fact that the May 23d term "board" was already taken, twice. For purposes of his propaganda attack against Snowden, he had to pretend on August 9th, by use of imprecise language that he had already on May 23d proposed something new, a high-level "group," while also pretending that his May 23d reference was not to an existing Board that he virtually named, and which also constituted the only operative institutional reform of his retroactively-constructed call for "thorough review."

The May 23d statement neither announced nor suggested the creation of a new board or group but rather mentioned "having" an existing board continue carrying out the tasks it is required by law to carry out. Nor did Obama assign any new tasks for the existing board.

This board carries a lot of weight. On August 9, Obama opines that everything might have worked out better, without all the excitement over Snowden, "if I had simply appointed this review board" prior to Snowden's revelations. He reverts here for maximum ambiguity to the May 23d term "board" to describe his August 9 proposal for a "group." This statement reinforces the appearance of deliberate deception by Obama. By suggesting that his appointment of such a board was the essential missing policy component, Obama intends to disguise the fact that he had already appointed two such "high level" boards, one official and one independent, to do the very "review" task he is suggesting. By this statement, Obama also fraudulently attempts to convert his May 23d mention of one of these two existing Boards to be a statement of intent – as he later re-characterized it – to redundantly create a third similar board, or group, in the future.

Obama is concocting out of nothing but verbal confusion a non-existent May 23d proposal for what he called, on August 9, "additional reforms. That's exactlywhat I called for."

His purpose is to claim "we would have gotten to the same place" in the reform agenda - which itself is comprised at most of a third redundant new group - even in the absence of Snowden's revelations. Therefore Snowden's revelations accomplished nothing, according to Obama, thereby undermining any defense of Snowden based on the actual success of his revelations in achieving exactly what he intended them to achieve: public knowledge leading to democratic outrage and action against Obama's constitutional violations.

Another problem with Obama's contention that he was already on the case pre-Snowden concocted for undermining the significance of Snowden's act of citizenship is that it ignores that "Snowden’s documents and statements add greatly to an understanding of just how ... deceptive the NSA and the Obama administration have been in describing the agency’s activities to the American public." According to James Bamford, the leading historian of the surveillance state created by the secret and illegal conduct of the NSA and its predecessors, under "the Obama administration, the NSA’s powers continued to expand at the same time that administration officials and the NSA continued to deceive the American public on the extent of the spying." How could Obama empower a "thorough review" premised upon the exposure of his own lies about the subject being reviewed?

In the wake of Snowden's revelations, people are less likely to trust the government officials who are spying on them, and who have – like James Clapper – been lying about it, or in Clapper's words – helpfully fashioning the "least untruthful" statements for public consumption. People may not trust government officials who now tell them to just never mind about their erstwhile rights. This is when the "independent expert" ploy, trotting out the bi-partisan non-government propagandists, is needed to put lipstick on the pig.

Obama is not speaking of a reform for greater transparency. He is deploying an age-old propaganda technique,used famously in the Warren Commissionthe 9/11 Commission and other such highly manipulated "independent groups" designed to "maintain the trust of the people" in government lies, half truths and cover-ups. In this case, Obama's application of this false remedy is not even new. He deceptively refers to a propaganda mechanism already put in place in his predecessor's term for the same purpose as if it were a new initiative of his own four point program. He depends upon a cooperative mass media to keep the public uninformed about such transparent chicanery as this pretense of initiating a new reform that already exists in two flavors.

Obama said "I'm tasking this independent group to … consider how we can maintain the trust of the people." Instead of assigning the existing independent or government Boards such propaganda responsibilities not expressly included in their governing statutes, Obama in an August 12, 2013 "Memo," delegated to the CIA the task of forming his third new "group," labeled "Review Group on Intelligence and Communications Technologies." This new group was necessary primarily to retroactively change Obama's May 23d reference to the existing PCLO Board as if it were a pre-Snowden "call" for this new and redundant "review" mechanism.

If Obama is looking for independence and trust, why on earth put the CIA, the government's clandestine experts in spying, propaganda and subterfuge, in charge of forming this new group? A CIA-selected group could not possibly be either more independent or more solicitous of constitutional values of openness and privacy than the other two existing groups would be. Obama does not explain how he thinks such a third new group would enhance the existing capacity for "thorough review" already possessed by the other two operating groups.

As experts in psy-ops, the CIA is suitable for the propaganda assignment to "maintain the trust." The agency would be well positioned to recruit clandestine service assets whose job descriptions include the skill set of maintaining a false appearance of independence from government. The precise provenance of those members Obama does not need to know. This explains why, strangely, for a reform he supposedly initiated personally back in May, and is an essential component of his varnish over a possibly impeachable high crime, Obama would remain uninvolved in the appointment of those who will carry the weight of his "thorough review." The propaganda offensive conducted by this group will fashion Obama's public defense against allegations of high crime against him. Selecting this group is similar to selecting his legal defense team, which he undoubtedly hopes not to need until after the final report of this group just before Christmas.

This "Group" is to be established - but not "lead"  -by the most famous public perjurer of the day, who is also a consummate government insider, the long-term military intelligence operative and now Director of National Intelligence, James Clapper. This makes a complete joke of the idea of an "independent" or "outside" commission.

This ad hoc group's duties? Predictably, yet another joke: enhanced focus of surveillance on "insider … threats," national security and foreign policy concerns, "while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust." In other words, the new group will be looking for new ways and excuses for casting an even broader surveillance net, conducting an escalated war on whistle-blowers, and purveying improved propaganda to elicit "trust" in this unconstitutional program. That might help explain why a new "group" was required – since the two existing Boards are charged by law to actually address the "need to protect privacy and civil liberties," terms which Obama left entirely out of his CIA memo. Something more covert, not tied to the rule of law so much as the rule of lies is required to suit his needs.

Assessing Obama's one page "memo" to the CIA, which Obama did not even elevate to the status of the executive order that Bush issued for his "board-washing" exercise, is like watching an illusionist do the color change trick in slow motion. It was the laziest way to do nothing, or worse take a step backward from what Bush had already done, pitched so that Obama could pretend he is taking a step toward a "thorough review" by a new, but redundant, "group," or was that a "board," that was already supposedly announced pre-Snowden, but clearly was not.

Obama's treatment of this new board/group issue is all deception, no reality. As a federal judge said of similar obfuscation by Obama's DoJ: "So many words. So little meaning." Any notion that this "reform" is intended to do anything but continue the mission of building Obama's Panopticon while delaying any day of reckoning with the American people is delusional.

2. Foreign Intelligence Surveillance "Court." In a similar vein of announcing new doubled-down propaganda initiatives as if they were reforms, the second of Obama's four proposals was that "we should consider some additional changes to the FISC," which would dress up, to look more like a court, this unelected group of judges that has been secretly exercising legislative powers and implementing secret interpretations amounting to law.

Obama says he wants "greater assurance that the court is looking at this from both sides of the issue." However many sides they look at the issue, the FISC judges are all appointed by Chief Justice Roberts who himself since 2006 has been actively involved in a highly politicized process of overturning democratic rights by usurpation of legislative powers. Adding some notional adversary process to a secret tribunal whose job has been to collude with the executive branch in exercising essentially legislative - not judicial - powers to authorize mass surveillance cannot redefine such a body with an assigned political agenda. Another participant in the process cannot convert this violation of the separation of powers into a proper judicial process. FISC involvement with anything other than individual cases, with probable cause determinations when they involve Americans, violates Article III of the Constitution.

Obama's "both sides" window treatment does not save this judicial usurpation of legislative authority to empower the executive to what James Madison, in Federalist #47, "pronounced the very definition of tyranny," for effectively accumulating these separated powers "in the same hands." A statement by FISC Chief Judge Reggie Walton described FISC's practical limitations in performing oversight of this inherently legislative process, which statement, the Washington Post points out, "contrasts with repeated assurances from theObama administration and intelligence agency leaders that the court provides central checks and balances on the government’s broad spying efforts." What the Chief Judge's statement reveals is that FISC is a court exercising legislative powers that it is not institutionally competent to exercise.

Again, adding another fox to this coop, even if tasked oxymoronically as a secret civil liberties advocate, serves solely the purpose of Obama's propaganda goal, "to improve the public’s confidence," not to improve his own compliance with the Constitution, nor the FISC's. Obama thinks the FISC has done rather "a fine job."

3. The Putrid Act. In another of his four proposals, Obama said he "will work with Congress to pursue appropriate reforms to Section 215 of the Patriot Act, the program that collects telephone records." Omitting mention of Section 702 of the Patriot Act, which contains the loophole interpreted to allow for the warrantless searches of American phone calls and emails, Obama uses another deceptive tactic for making no change, while appearing to do so.

Since a large bi-partisan minority of back-benchers in Congress already worked on their own reform that nearly cut back Obama's surveillance program to constitutional proportions, it is no surprise that Obama intends to "work with Congress." No doubt he will "work" members again to derail the further multiple efforts already pending to support the Constitution including, for example, Republican presidential aspirant Senator Paul's billrequiring that the "Fourth Amendment to the Constitution shall not be construed to allow any agency of the United States Government to search the phone records of Americans without a warrant based on probable cause." Obama will undoubtedly attempt to substitute some innocuous cosmetic change like, why not – yet another Board or similar bogus "oversight" that he can spin as reform.

Obama and his bipartisan leadership team "worked" Congress vigorously to narrowly defeat the Amash reformAmendment. As Rep. Amash tweeted, "Pres Obama opposes my #NSA amendment, but American people overwhelmingly support it, … Will your Rep stand with the WH or the Constitution?"

Obama has no intention of actually confining what he calls his "programmatic surveillance" within the framework of judicial warrants for searches connected to individual cases that the Constitution requires. As former NSA and CIA director Michael Hayden observed, the president "didn’t suggest he was going to operationally change this program," which Obama thinks is "lawful, effective, and appropriate" as it is. Obama's "reform" proposals are more along the line of enlarging the number of foxes assigned to guard the chicken coop, as discussed further below.

Again, any Patriot Act proposals will, as Obama repeated, be designed "to give the American people additional confidence" without making any operational change, but only such cosmetic flim-flam as may be necessary to defuse the nearly successful defense of the Constitution led by Reps. Amash and Conyers, and supported by other politicians running for cover from an outraged public.

4. NSA. Obama proposes a new propaganda organ at NSA – a website that "will give Americans and the world the ability to learn more about what our intelligence community does and what it doesn’t do, how it carries out its mission, and why it does so." He also proposes an NSA "full time civil liberties and privacy officer." If this sounds like something new, it is not. CIA has a website.

Before the Bush/Obama militarization of domestic law enforcement, such inward looking measures were unnecessary for the military's "sigint" spy agency because the military, under the 1878 Posse Comitatus Act, was excluded from domestic law enforcement. The NSA's job to spy on foreigners, not propagandize them, required no such measures for managing public opinion. Now that the NSA is involved in domestic law enforcement, it needs PR operatives, including a website like the CIA has.

The FBI already has a privacy officer and the Department of Homeland Security has an Officer for Civil Rights and Civil Liberties. Both sit on the government's Board on Safeguarding Americans’ Civil Liberties. By law, the Director of National Intelligence (Clapper), and the Director of the Central Intelligence Agency (Brennan) are both required to have such an officer, and the independent PCLO Board can direct other agencies to create such officers. These officers have accomplished nothing more toward assuring compliance with the Constitution than a pack of foxes would accomplish guarding a chicken coop. A new counterpart at NSA cannot be realistically expected to accomplish any more.

Such "reform" to add military spy fox to the existing pack simply serves to institutionalize the military's new role in domestic law enforcement while expanding the coordination mechanisms designed to help cover-up and rationalize, not prevent, constitutional and other violations. As in so many areas of current concern, what is needed is the restoration of fundamental landmark laws that have been repealed or overturned by the Supreme Court in the recent past. In this case that would be a reinvigorated Posse Comitatus Act to keep the military's focus trained on defending the country, not policing it.

Obama's bundle of four "steps" are presumably the product of his desired "orderly and lawful process to ... come up with appropriate reforms." He patronizingly criticizes Snowden for short-circuiting these reforms as a stereotypical activist, "in a very passionate, but not always fully informed way." Of course Snowden has been the very model of phlegmatic decorum, letting his extremely well-informed documentation do most of the talking through journalists with no arm-waving on his part whatsoever. Central-casting could not have made a better assignment for the role of foil to disarm Obama's annoying ploy of covering up his betrayal of his base by asserting merely stylistic differentiation of himself from generic activists - whom his former Chief of Staff similarly, though more colorfully, called "f—ing retarded." But Obama doesn't have much. So, notwithstanding the obvious facts, he is sticking with his and his former chief's stereotype of uninformed emotionalism to pin on Snowden and any other Americans who would work effectively to support the Constitution.

Obama's "orderly" developed, "appropriate reforms" do not come close to the "thorough review" he falsely claims to have "called for" on May 23, even after taking more than two additional months to prepare his ineffective proposals. They are no more than a by-the-book government propaganda initiative "designed to ensure that the American people can trust that our efforts are in line with our interests and our values," without actually doing anything that could risk so aligning them. Obama's big lies about these "steps … we’re going to be taking very shortly" are aimed at Snowden and at dampening the heightened public consciousness of rampant constitutional violation that Snowden's revelations ignited. This is driving down Obama's poll numbers.

These proposals are designed not to change Obama's program, but solely to deflect demands for such change by winning the PR offensive, which turns – as do all Obama's similar deceptions – on Mencken's famous gambling tip that "no one … has ever lost money by underestimating the intelligence of the great masses of the plain people. Nor has anyone ever lost public office thereby."

Mencken recorded no opinion whether a politician who consistently employed no other betting tactic than routinely insulting the public's intelligence could "fool all the people all the time," contrary to Lincoln's axiom. Obama is in violation of the Constitution; he is telling transparent lies to cover it up and postpone the day of reckoning - and the people are paying greater attention to this than usual. The Snowden affair may be an occasion for witnessing the Lincoln exception to the general rule that guides Obama.

Presidential lawerly advice about the lawful path

Like the pretense that he had already announced pre-Snowden his intention to make reform proposals, Obama similarly suggests in cleverly deceptive language that he had already signed an Executive Order - that Snowden should have employed - to extend federal whistle-blower protection to the intelligence community. Obama claims there "were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions." Obama intended us to believe that this indefinite "somebody," if not referring explicitly to Snowden, at least included Snowden. But again, the mandatory fact-checking reveals that Obama's "somebody" refers to somebody else.

The referenced "Presidential Policy Directive 19, signed by Obama without much publicity on Oct. 10, 2012, has been criticized both for lacking due process protection and because PPD-19 does not cover contractor employees in any event. Even DoD's implementation of PPD-19 ordered on July 8, 2013, in its Directive-type Memorandum (DTM) 13-008, excluded such employees after being urged to include them. The respected whistle-blower organization that did so later complained, on August 7, 2013, that the DoD "notably neglected to address intelligence community contractors, like Edward Snowden, who may continue to turn to outside channels if the DoD and other agencies do not extend PPD-19 protections to contractors with access to classified information."

Another whistle-blower advocate warned: ""We are concerned that national security employees may think that this [PPD-19] directive gives them some much-needed protections when it does not," The new protection was solely for internal reports of fraud, waste and abuse. The Pentagon itself had released an assessment in 2012criticizing the systematic denial of protection of DoD whistle-blowers by the relevant internal office of the Inspector General. The report criticized, among other problems, insufficient evidence to support findings of non-reprisal against whistle-blowers and erroneous definition as "harmless" of retaliatory actions against whistle-blowers affecting most cases.

This is the same system of sketchy protection that Obama invokes for that "somebody" who might limit their whistle-blowing to accepted channels. This system is in fact inadequate to predictably protect from the high risk of internal reprisal anybody who might believe Obama and use it. It would be naïve to think a secretive bureaucracy would work in any other way than to protect itself by suppressing and sidelining dissent as fundamental as Snowden's.

Since the bureaucracy is mostly carrying out Obama's orders, the gist of Snowden's concern is with Obama himself. Exposing a president in systematic violation of long-understood constitutional rights is not a matter for internal bureaucratic complaint processes, but rather a matter for the public to decide. Obama's reference to his ineffective PPD-19 was a propaganda ploy to disguise another truth – which is also another essential element of Snowden's defense – that Snowden's only practical means to defend the Constitution from Obama was to appeal over the head of the bureaucracy to the public.

Not only did Obama falsely suggest that he had extended whistle-blower protections that would have covered Snowden's revelations, protections that are highly defective in any case, but they had not even been extended to cover contractor employees like Snowden by the time of Obama's August 9 performance. The reader can decide if this is just another mistake by Obama or the kind of calculated mendacity that close observers have come to routinely expect from him.

Conclusion

Giving Snowden additional negligent – had it been solicited – legal advice Obama counsels: "If, in fact, he believes that what he did was right, then …[Snowden] can come here, appear before the court with a lawyer and make his case." As a patriot, Snowden has better legal alternatives for the time being than trusting Obama and the lowly ranked independence of his courts. Obama's challenge is intended to give credence to the concept that Snowden's decision to take refuge abroad while negotiating his legal status, rather than subject himself to the pre-judgment, possible torture, silencing and denial of constitutional rights inflicted upon Bradley Manning, somehow impeaches Snowden's patriotism.

Obama concluded his presentation by dangling a lead-in for the predictable, if not set-up, question by MSNBC's Chuck Todd following-up about Snowden's patriotism, the only NSA-related question posed by thesupine press corps. Obama said: "I believe that those who have lawfully raised their voices on behalf of privacy and civil liberties are also patriots who love our country." Using this classic divide and conquer strategy for isolating effective citizenship like Snowden's from efforts by others who are routinely ineffective, Obama thus praises as patriots those who – perhaps as professional activists providing Obama support and cover – have "lawfully" (and impotently) merely "raised their voices," and been ignored, or who more courageously – as muffled whistle-blowers – have buried their more credible voices within "lawful" bureaucratic processes, and risked reprisals for that.

A whistle-blower who puts his oath of loyalty to the Constitution above considerations of technical legalities applied to perpetuate and hide those violations, and who actually exposes criminally unconstitutional conduct that should trump such lesser legalities in a court fairly applying the Constitution, and who thereby also stimulates an essential national debate on the subject is, to Obama, not a patriot because of "the fact ... that Mr. Snowden has been charged with three felonies." Charges pressed by the constitutional offenders themselves. Is a more technical principle-twisting rationalization even possible?

Being rusty at the unscripted performance format had ironic consequence for Obama when he allegedly himself violated the law and judicial secrecy rules during the press conference question period. He did so in the interest of scoring an off-the-cuff political point by implying he is close on the trail of the Benghazi attackers. Revealing a sealed indictment would be acting "unlawfully," even if in pursuit of such a higher political purpose. Elsewhere Obama has said: "If I was to release stuff, information that I’m not authorized to release, I’m breaking the law." He is presumably not authorized to release information about a sealed indictment. Yet that seems to be what he did by revealing "there’s a sealed indictment." Thus Obama apparently broke the law himself at a press conference which was conducted for the very purpose of hanging a hyper-technical "broke the law" sign around Snowden's neck.

We already know about Obama's asymmetric enforcement of such obligations, a practice that falls within a general category that Snowden labeled "unequal pardon." Obama, independent of public opinion, can pardon his own law-breaking, James Clapper's lies, and the massive bankster fraud that helps fund him. But no similar leniency about technical legal violations, whether in pursuit of higher goals like the Constitution or otherwise, can be expected to be shown by a hypocritical Obama to a mere patriotic citizen like Snowden.

Obama has stopped talking about his war in Afghanistan after what amounts to an official whistle-blower was appointed under a law authorizing the investigation of the waste, fraud and abuse involved in the enormous expense of that war. John F. Sopko is the "special inspector general" partly responsible for the growing public opinion that the Afghanistan war is a useless and "expensive boondoggle." Like Snowden, Special IG Sopko knows "If you want to make a change, you need to get to the American people … putting people in jail also works — it gets their attention." Congress should appoint a similarly aggressive IG to investigate commander in chief Obama's other war, the similarly prolonged "war on terror." Special focus of such a Special IG on the expensive and illegal surveillance programs the war on terror has spawned would likely also change public opinion on the war against whistle-blowers

Congress could at the same time strengthen the constitutional oath of office with supportive legislation making it clear that it constitutes the crime of "misprision" for public officials not to inform the American people of known high crimes and constitutional violations. Sunlight is still the best natural disinfectant.

 1. An updated application of the Third Amendment could perceive permanent NSA spying on one's private electronic communication that originate from home as a modern form of quartering. A living Constitution requires such re-conceptualization for modern application to new technologies of such deeper principles, as that embodied in the Third Amendment, banning military imposition upon civilian life without consent except in case of a war within the United States.

This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without permission or license from the source.

Rob Hager

Rob Hager and James Marc Leas are lawyers active with Occupy Wall Street in their respective towns. Hager is an experienced public interest litigator while Leas specializes in patent law.


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