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Secret law has been anathema to our democracy since its Founding, but a federal appeals court just gave us more of it.

We might forgive the citizenry’s confusion, though, in attempting to square those principles with the decision by the Second Circuit Court of Appeals, published yesterday, holding that the government may continue to keep secret nine legal memoranda by the Justice Department’s Office of Legal Counsel analyzing the legality of targeted killings carried out by the US government. It was just more than a year ago that the same panel of the same court ordered the government to disclose key portions of a July 2010 OLC memorandum that authorized the targeted killing of an American citizen in Yemen. At the time, the court’s opinion seemed to promise at least a partial solution to a problem straight (as the district court in the same case put it) from Alice in Wonderland: that [a] thicket of laws and precedents … 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 its conclusion a secret.

Yesterday’s opinion retreats from that promise by keeping much of the government’s law of the targeted killing program secret. (In this and two other cases, the ACLU continues to seek more than 100 other legal memoranda authored by various agencies concerning targeted killing.) It does so in two ways that warrant attention. First, the court suggests that OLC merely gives advice to executive branch agencies, and that OLC’s legal memoranda do not establish the “working law” of the government because agencies might not “adopt” the memoranda’s legal analysis as their own. This argument is legally flawed and, moreover, it flies in the face of the public evidence concerning how the executive branch treats opinions issued by OLC. In an OLC memorandum published, ironically or not, the same day (July 16, 2010) and over the same signature (David Barron’s) as the targeted killing memorandum released at the Second Circuit’s behest last year, the OLC explains that its “central function” is to provide “controlling legal advice to Executive Branch officials.” And not even two weeks ago, the acting head of the OLC told the public that even informally drafted legal advice emanating from his office is “binding by custom and practice in the executive branch,” that “[i]t’s the official view of the office, and that “[p]eople are supposed to and do follow it.”

There’s a lot that’s remarkable about last Tuesday’s Third Circuit decision in Hassan v. City of New York, which Faiza Patel cogently summarized in her post last week. In a nutshell, Hassan involves a challenge to secret intelligence operations carried out by the New York Police Department (NYPD) over the years since September 11 that allegedly targets Muslim communities “based on the false and stigmatizing premise that Muslim religious identity ‘is a permissible proxy for criminality, and that Muslim individuals, businesses, and institutions can therefore be subject to pervasive surveillance not visited upon individuals, businesses, and institutions of any other religious faith or the public at large.'” The district court had tersely granted the City’s motion to dismiss both because it concluded the plaintiffs lacked standing and because, in the alternative, it held that the plaintiffs had failed to overcome the pleading burden articulated by the Supreme Court in Iqbal. But the Third Circuit reversed on both fronts, holding that the plaintiffs’ allegations, if true, were more than enough to establish both that they had suffered an injury in fact sufficient to satisfy Article III standing, and that their equal protection and First Amendment claims were sufficiently plausible to satisfy Iqbal. To be sure, the Third Circuit’s decision is interlocutory — coming at a very preliminary stage in the litigation. But what I want to suggest in the post that follows is that, as much as any other post-September 11 judicial decision, Hassan represents the full-throated repudiation of the Supreme Court’s infamous World War II-era ruling in Korematsu v. United States that has been so long in coming — and so thoroughly overdue.

As I’ve written about before, Korematsu reflects two separate — but equally important — constitutional failures. The first failure was the internment policy itself, which we now know (and which the US government knew at the time) to have been a completely unnecessary — if not hysterical — overreaction to hyperbolic and (after Midway, at least) categorically overstated fears of a Japanese invasion of the West Coast. By itself, the camps were a dark stain on the history of civil liberties in the United States — albeit one of many, alas. But the second failure was, historically, the far more significant and unique one — the Supreme Court’s conscious constitutional rationalization of the internment policy, based upon a combination of naïveté on the Justices’ part and the affirmatively misleading (if not downright disingenuous) briefing by the federal government. As Justice Robert H. Jackson understood — and forcefully articulated — in his Korematsu dissent, the real violence to the “rule of law” resulting from the camps was thus not the underlying policy, but rather its validation by the Supreme Court. In his words, “a military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution.”

But we’ve struggled somewhat with the second constitutional failure. The courts have repudiated Korematsu’s conviction; the Office of the Solicitor General has confessed error for its role in perpetuating the government’s misleading case before the Supreme Court; and scholars have suggested that Korematsu itself has become part of the “anti-canon” — the class of Supreme Court decisions so reviled that they are cited, if at all, in support of the wrongness of their holdings. But Korematsu itself remains on the books, as do broader concerns that courts are still vulnerable to Korematsu — style reasoning, i.e., that the need to protect national security might provide legal justification for government conduct that would otherwise be unjustifiable. Indeed, one need look no further than the ongoing debate over the SSCI’s torture report for evidence of the Korematsu mentality being alive and well.

In the future, technological innovation will also lead to a supply-side miracle, with long-term gains in efficiency and productivity. Transportation and communication costs will drop, logistics and global supply chains will become more effective, and the cost of trade will diminish, all of which will open new markets and drive economic growth.

It will be called the great betrayal. And it was a long time coming. But the grim message from Washington to the anti-Assad fighters of southern Syria – that they could expect no help from the West in their further struggle against Assad’s regime or the Russians – will one day figure in the history books. It’s a turning point in the Syria war, a shameful betrayal if you happen to belong to the wreckage of the “Free Syrian Army” and its acolytes around the city of Deraa, and a further victory for the Assad regime in its ambition to retake all of rebel Syria. Already Russian missiles and Syrian bombs are embracing the countryside south and east of Deraa and outside Quneitra and Sweida after the opposition fighters refused a negotiated peace last week. Refugees are again fleeing the towns. But the words of the American message to the fighters, seen by Reuters and so far not denied by the US, are both bleak and hopeless: “You should not base your decisions on the assumption or expectation of a military intervention by us … We in the United States government understand the difficult conditions you are facing and still advise the Russians and the Syrian regime not to undertake a military measure that violates the [de-escalation] zone.” When Washington “understands the difficult conditions” its militia allies are facing and says it “advises” the Russians and Syrians not to violate a ceasefire – which was Moscow’s idea in the first place – you know that the Americans are pulling the carpet from beneath another set of allies.

Current CIA director Gina Haspel described graphic acts of deliberate physical torture including the waterboarding of a suspected Al-Qa’ida terrorist under her supervision when she was chief of base at a CIA black site in Thailand in 2002, according to declassified CIA cables – most of which she wrote or authorized – obtained by the National Security Archive through a Freedom of Information Act lawsuit and posted on the Web today. The Haspel cables detail conditions the public has only seen in the infamous Abu Ghraib photographs from Iraq of detainees hooded and shackled, forced nudity, wall slamming, and box confinement, as well as “enhanced techniques” never photographed such as the simulated drowning of suspects on the waterboard. Waterboarding is a war crime under both U.S. and international law, dating back to U.S. prosecution of Japanese solders for torturing U.S. POWs during World War II.[1]

There is no consensus within the administration about what the United States can or should do to try to bring a halt to the killing and stop what appears to be the increasingly inevitable fall of Aleppo, Syria’s largest city, to government forces.

But last Thursday, as the discussion moved up the chain to a contentious White House meeting of national security principals, top defense officials made clear that their position had not changed. They advised a possible increase in weapons aid to opposition fighters but said the United States should focus its own military firepower on the anti-Islamic State mission rather than risk a direct confrontation with Russia. Asked about the perception of a double shift, a senior defense official said the Pentagon’s position had not changed. “We still believe there are a number of ways to bolster the opposition and not compromise the anti-Islamic State mission,” this official said.

But others felt that they had been spun by the defense leadership. Amid increasing internal tension, one senior administration official insisted that both the Syrian opposition and U.S. allies have pressed for a continuation of negotiations and discouraged talk of military intervention. Obama’s position on the subject, this official said, has been “consistent. We do not believe there is a military solution to this conflict. There are any number of challenges that come with applying military force in this context.” In Obama’s recent speech at the United Nations, the official noted, Obama repeated that “there’s no ultimate military victory to be won” in Syria. Instead, Obama said, “we’re going to have to pursue the hard work of diplomacy that aims to stop the violence, and deliver aid to those in need, and support those who pursue a political settlement.” No proposals have been presented to Obama for a decision, and some in the administration think the White House is willing to let time run out on Aleppo, in part to preserve options for a new administration.

More than a month after Sen. Ron Wyden (D-Ore.) requested information about US Customs and Border Protection's practice of searching cell phones at US borders and airports, he's still waiting for answers—but he's not waiting to introduce legislation to end the practice. "It's very concerning that [the Department of Homeland Security] hasn't managed to answer my questions about the number of digital searches at the border, five weeks after I requested that basic information," Wyden, a leading congressional advocate for civil liberties and privacy, told Mother Jones on Tuesday through a spokesman. "If CBP were to undertake a system of indiscriminate digital searches, that would distract CBP from its core mission, dragging time and attention away from catching the bad guys." Wyden's request to DHS and CBP came on the heels of a February 18 report from the Associated Press of a "fivefold increase" in electronic media searches in fiscal year 2016 over the previous year, from fewer than 5,000 to nearly 24,000. It also followed Homeland Security Secretary John Kelly's suggestion that visitors from a select group of countries, mainly Muslim, might be required to hand over passwords to their social media accounts as a condition of entry. (That comment came a week after President Donald Trump first unveiled his executive order⁠ banning travel from seven majority-Muslim countries.) The Knight First Amendment Institute, which advocates for freedom of speech, sued DHS on Monday for records relating to the seizure of electronic devices at border checkpoints. Wyden requested similar data on CBP device searches and demands for travelers' passwords. "There are well-established legal rules governing how law enforcement agencies may obtain data from social media companies and email providers," Wyden wrote in the February 20 letter to DHS and CBP. "By requesting a traveler's credentials and then directly accessing their data, CBP would be short-circuiting the vital checks and balances that exist in our current system." The senator wrote that the searches not only violate civil liberties but could reduce international business travel or force companies to outfit employees with "burner" laptops and mobile devices, "which some firms already use when employees visit nations like China."

"Folks are going to be less likely to travel freely to the US with the devices they need if they don't feel their sensitive business information is going to be safe at the border," Wyden said Tuesday, noting that CBP can copy the information it views on a device. "Then they can store that information and search it without a warrant." Wyden will soon introduce legislation to force law enforcement to obtain warrants before searching devices at the border. His bill would also prevent CBP from compelling travelers to reveal passwords to their accounts. A DHS spokesman said in a statement that "all travelers arriving to the US are subject to CBP inspection," which includes inspection of any electronic devices they may be carrying. Access to these devices, the spokesman said, helps CBP agents ascertain the identity and admissibility of people from other countries and "deter the entry of possible terrorists, terrorist weapons, controlled substances," and other prohibited items. "CBP electronic media searches," the spokesman said, "have resulted in arrests for child pornography, evidence helpful in combating terrorist activity, violations of export controls, convictions for intellectual property rights violations, and visa fraud discoveries." In a March 27 USA Today op-ed, Joseph B. Maher, DHS acting general counsel, compared device searches to searching luggage. "Just as Customs is charged with inspecting luggage, vehicles and cargo containers upon arrival to the USA, there are circumstances in this digital age when we must inspect an electronic device for violations of the law," Maher wrote.

But in a unanimous 2014 ruling, the Supreme Court found that police need warrants to search cell phones. Chief Justice John Roberts wrote in the opinion that cell phones are "such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy." In response to a Justice Department argument that cell phones were akin to wallets, purses, and address books, Roberts wrote: "That is like saying a ride on horseback is materially indistinguishable from a flight to the moon." The law, however, applies differently at the border because of the "border search doctrine," which has traditionally given law enforcement wider latitude under the Fourth Amendment to perform searches at borders and international airports. CBP says it keeps tight controls on its searches and is sensitive to personal privacy. Wyden isn't convinced. "Given Trump's worrying track record so far, and the ease with which CBP could change its guidelines, it's important we create common-sense statutory protections for Americans' liberty and security," he says.

Attorney General Jeff Sessions has instructed DOJ prosecutors to begin asking FBI agents for explanations regarding evidence pertaining to a dormant criminal investigation into the controversial Uranium One deal linked to Bill and Hillary Clinton, according to NBC. 

The order comes as part of a promise made last month by Sessions to examine whether or not a special counsel was warranted in the deal which saw 20% of American Uranium sold to a Russian state-owned energy company in a 2010 transaction allowed by the Obama administration. Prior to the deal, individual connected with Uranium One deal had donated over $140 million to the Clinton Foundation. Moreover, Bill Clinton gave a $500,000 speech to a Russian bank which issued a favorable rating on Uranium One stock. Clinton and Putin met the same day of the speech at the Russian leader's private homestead.

A report by the New York Times and the book Clinton Cash by investigative journalist Peter Schweizer in 2015 are said to have convinced the FBI in large part to launch their investigation into the Clinton Foundation over several claims of pay-for-play before and during Hillary Clinton's role as Secretary of State, including the Uranium One deal and several international arms sales.  As reported in International Business Times:  The Clinton-led State Department also authorized $151 billion of separate Pentagon-brokered deals for 16 of the countries that donated to the Clinton Foundation, resulting in a 143 percent increase in completed sales to those nations over the same time frame during the Bush administration.

Years late to the party, mainstream media outlets like USA Today, Reuters, and Buzzfeed are just out with "breaking" and "exclusive" stories detailing how a vast arsenal of weapons sent to Syria by the CIA in cooperation with US allies fuelled the rapid growth of ISIS. Buzzfeed's story entitled, Blowback: ISIS Got A Powerful Missile The CIA Secretly Bought In Bulgaria, begins by referencing "a new report on how ISIS built its arsenal highlights how the US purchased munitions, intended for Syrian rebels, that ended up in the hands of the terrorist group." The original study that Buzzfeed and other media are referencing comes from a UK-based independent weapons research organization called Conflict Armament Research (CAR) which has had a team of weapons and munitions experts on the ground in the Middle East for years examining arms and equipment recovered from ISIS and other terrorist groups in Iraq and Syria. Using serial numbers, crate shipping markings, and all available forensics data, the CAR experts began finding that as early as 2013 to 2014 much of the Islamic State's advanced weapons systems as well as small arms were clearly sourced to the United States and the West. “Supplies of materiel into the Syrian conflict from foreign parties - notably the United States and Saudi Arabia - have indirectly allowed IS to obtain substantial quantities of anti-armor ammunition,” states the CAR report. “These weapons include anti-tank guided weapons and several varieties of rocket with tandem warheads, which are designed to defeat modern reactive armor.”

The study further reveals that in one notable instance, a weapons shipment of advanced missile systems switched hands from US intelligence to "moderate" Syrian groups to ISIS in only a two month time period. Though the report is now evoking shock and confusion among pundits, the same weapons research group has actually published similar findings and conclusions going years back into the Syrian conflict.  For example, a previous 2014 Conflict Armament Research report found that Balkan origin anti-tank rockets recovered from ISIS fighters appeared identical to those shipped in 2013 to Syrian rebel forces as part of a CIA program. And CAR's damning publications presenting such inconvenient empirical data have been consistent for years, yet were largely ignored and suppressed by analysts and mainstream media who were too busy cheerleading US support for Syrian "rebels" cast as romantic revolutionaries in their struggle to topple Assad and his secular nationalist government. Of course, it's an old story if you've been reading Zero Hedge or the profusion of independent outlets that have long reported the truth about the covert "dirty war" in Syria since nearly the beginning. 

Even though it's now suddenly acceptable and fashionable to admit - as does one recent BBC headline ("The Jihadis You Pay For") - that the US and Saudi covert program in Syria fuelled the rise of ISIS and various other al-Qaeda linked terror groups, it must be remembered that only a short time ago the mainstream media openly mocked analysts and writers who dared make the connection between the West's massive covert Syrian rebel aid programs and the al-Qaeda insurgents who so clearly benefited. When news of the 2012 Defense Intelligence Agency report  broke, which described what it called a "Salafist principality" or "an Islamic State" as a strategic asset or buffer in Syria that could be used by the Western coalition "in order to isolate the Syrian regime", American media outlets dismissed what was labelled a "conspiracy theory" at the time in spite of the hard evidence of a US military intelligence report being made available. The Daily Beast for example mocked what it called "The ISIS Conspiracy Theory that Ate the Web" - describing those analyzing the Pentagon intelligence document as far-right and far-left loons. This occurred even as the document was taken very seriously and analyzed in-depth by some of the world's foremost Middle East experts and investigative journalists in foreign outlets like the London Review of Books, The Guardian, Der Spiegal , as well as RT and Al Jazeera.

For the most glaring example of Trump tax cuts benefiting the rich, look no further than Warren Buffett. According to an analysis by Barclays analyst Jay Gelb, Buffett's Berkshire will be among the greatest beneficiaries of US corporate tax reform. The bank calculates that Berkshire Hathaway’s 4Q book value could see a huge boost of as much as $37 billion (12% increase from 3Q 17 level) resulting from the US corporate tax reform due to a decline in its deferred tax liability (DTL). The one-time increase will result from Berkshire lowering its tax liability on appreciated investments.

Tags help you find and organize your bookmarks by letting you select all of your bookmarks with a certain tag or combination of tags. Quickly add relevant tags to a bookmark by clicking on any of the recommended tags that appear under the description field on the “Save Bookmark” pop-up. When you are satisfied with the information in the “Save Bookmark” pop-up, click the “Save Bookmark” button. Now a link to the page is stored in your Diigo library, and the information you entered is stored with it.

Highlight Highlighting lets you denote important information on a page, just like highlighting in a book, but with Diigo, the highlighted text will be conveniently saved to your library as well. There are some important things for me to denote on my recipe. My wife doesn’t like pineapple, my grandfather can’t have eggs or chocolate, and I don’t like coconut very much, so I highlight those items on the recipe to let me know I need to deal with them. Highlight by clicking “Highlight” on the Diigolet. Then select the text you want to highlight. The text will be visually highlighted and the text is now stored in your library. It’s that easy. Click the button again to exit highlighter mode. You can also change the color of a highlight by clicking the downward-pointing arrow next to “Highlight” and choosing a color. Colors are useful for differentiating different types of highlights. I will use a different color for each of the different people I need to consider.

To add a sticky note to a highlight, simply move your mouse cursor over a highlight. When the little pop-up tab with the pencil on it appears, move the cursor to it and a menu will appear. Choose “Add Sticky Notes”. Now you can type and post a sticky note just like before, but this time it will be tied to the highlighted text.

In its latest budget request, the Trump administration is asking for a near-record $750 billion for the Pentagon and related defense activities, an astonishing figure by any measure. If passed by Congress, it will, in fact, be one of the largest military budgets in American history, topping peak levels reached during the Korean and Vietnam Wars. And keep one thing in mind: that $750 billion represents only part of the actual annual cost of our national security state. There are at least 10 separate pots of money dedicated to fighting wars, preparing for yet more wars, and dealing with the consequences of wars already fought. So the next time a president, a general, a secretary of defense, or a hawkish member of Congress insists that the U.S. military is woefully underfunded, think twice. A careful look at U.S. defense expenditures offers a healthy corrective to such wildly inaccurate claims. Now, let’s take a brief dollar-by-dollar tour of the U.S. national security state of 2019, tallying the sums up as we go, and see just where we finally land (or perhaps the word should be “soar”), financially speaking.

Final tally: $1.2542 trillion So, our final annual tally for war, preparations for war, and the impact of war comes to more than $1.25 trillion — more than double the Pentagon’s base budget. If the average taxpayer were aware that this amount was being spent in the name of national defense — with much of it wasted, misguided, or simply counterproductive — it might be far harder for the national security state to consume ever-growing sums with minimal public pushback. For now, however, the gravy train is running full speed ahead and its main beneficiaries — Lockheed Martin, Boeing, Northrop Grumman, and their cohorts — are laughing all the way to the bank.