"Why should we continue to care about Guantánamo?"

A student asked Linda Greenhouse on the last day of the law school course she taught on the sole topic of Guantánamo. She doesn't mention that the law school is Yale, which is the most difficult law school to gain admission to and therefore the one with the most elite set of students. Odd to think that someone who got into Yale and elected to take a course dealing solely with Guantánamo — it can't possibly be a required course — endured the experience to the last day and still asked why should I care?

I wasn't there, so I don't know the tone of the question. Greenhouse gives the context the student presented — "the Guantánamo population has shrunk even as urgent human rights crises that place many more people at risk have erupted in other parts of the world" —  and characterizes the question as "deliberately provocative and not entirely rhetorical." Greenhouse informs us that the class was provoked to "lively" "conversation" that "quickly" produced "consensus."

Of course, the intense activity of devoting a law school semester to one legal problem needs to make sense in the end. Simple human defensiveness could explain the quick trip to consensus. Why did we take this course instead of Information Privacy Law or Law and Regulation of Banks and Other Financial Intermediaries or whatever else might have captured our hearts on Yale Law School's rich menu of course offerings?

Here's how Greenhouse, in her NYT column, phrases the consensus:

We care because the Guantánamo saga isn’t only about the 162 men still held there, or the hundreds who have come and gone. It’s about the health of our own institutions, our own commitments. We look in the mirror of Guantánamo and see ourselves.

From "isn’t only about the 162 men" I gather that the students got weary of caring about those 162 men. If they are the 162 who are left, they are there for a reason. Bush put them there, but Obama has kept them there. Must we really go over and over the question of whether it all was done precisely right? And then you see it: the place of refuge from this nagging doubt about whether these 162 men deserved all this elite law study.

And that place is: ME! This is about ME! This is US! This is WHO. WE. ARE. Ah, relief. So I haven't been staring for months into the dismal stories of 162 shady-but-perhaps-procedurally-abused characters. I've been staring into a mirror at myself. Ah! The relief! It was about me!

That was where the elite students quickly found relief from provocation. I suspect that practically any particular legal problem can support the claim that it's really about the legitimacy and principle of the entire legal system, so the quick consensus position — to me, seen from a distance — feels more like evidence of the students' desire to free themselves from the anxiety of having paid a semester's worth of attention to something they believed they would care about, because they liked the idea of being the sort of people who do care when others do not care, but then they saw that they did not really care at least not quite that much.

And then the relief comes, and it has sufficient resonance with the original choice of what to study: I am studying myself caring about the people I wanted to believe I cared about. I've been looking into the mirror to see if I care, and I must now see that I care, or it doesn't make sense to have chosen to stare for months into a mirror to see if I care. I do care. I care about me caring.

No clemency for Snowden.

"'Mr Snowden violated US law. He should return to the US and face justice,' said White House adviser Dan Pfeiffer."

Obama's newest famous quote is "I'm really good at killing people" — but what was the context?

The Daily Mail cherry-picked the quote out of the new book "Double Down: Game Change 2012." The book's not out for normal people until tomorrow. (Buy it here.) So I'm stuck wondering. DM says:

A Washington Post report makes passing reference to the anecdote, saying that while speaking with his aides about the drone program Obama bragged that he was 'really good at killing people.' The Obama Administration has not responded specifically to reports of the alleged boast from the President.

The Daily Mail is punctilious enough to say "alleged" but can't resist characterizing the words as a "boast." We're told he "bragged." The headline says "President Obama joked...." Let's assume for the purposes of discussion that Obama really did say those words in that order. But let's try to imagine why he might have said that.

Perhaps you're imagining a childish man, exclaiming "I'm really good at killing people" like a numbskull teenager playing a first-person-shooter video game. Or maybe you're picturing someone more like a movie super-villain in his vast underground lair, cackling to his fawning minions as he creepily caresses his "kill" button.

But it's possible to think of a context in which Obama would be sympathetic. I could imagine a serious discussion of the lack of genuine accomplishment in his administration.

O: What will history say we have done? Nothing! I was the embodiment of hope, and everything I have touched has turned to ashes.

AIDE: But, sir....

O: What are the accomplishments? Name the accomplish of the Obama administration! What will people say?!

AIDE: He killed bin Laden.

O: A pathetic, isolated idiot sitting in his hovel, watching bad porn. The SEALs blew him away. That was really amazing of me.

AIDE: [Names several significant terrorists who have been killed through the drone program.]

O [sadly, sarcastically]: I'm really good at killing people.

Intent on writing this little dialogue, I searched for a list of 4 or 5 good names for the aide to tick off in an effort to bolster the President's spirits. See if you can do that. I couldn't do it. I kept running into "A List Of Children Killed By Drone Strikes In Pakistan and Yemen." Go there. Scroll through those names (and ages) and think about that context and why Obama might have said I'm really good at killing people.

"60 Minutes had an absolutely devastating report on the Obama administration’s failure to protect Ambassador Chris Stevens and other Americans in Benghazi."

Writes Professor Jacobson, observing that "the heart of the report is that there were clear and unequivocal warnings which were ignored, and the Obama administration lied about these warnings after the attack."

Here's the video:



From the transcript:

Andy Wood: I made it known in a country team meeting, "You are gonna get attacked. You are gonna get attacked in Benghazi. It's gonna happen. You need to change your security profile.... Shut down operations. Move out temporarily. Ch-- or change locations within the city. Do something to break up the profile because you are being targeted. They are-- they are-- they are watching you. The attack cycle is such that they're in the final planning stages."

Lara Logan: Wait a minute, you said, "They're in the final planning stages of an attack on the American mission in Benghazi"?

Andy Wood: It was apparent to me that that was the case. Reading, reading all these other, ah, attacks that were occurring, I could see what they were staging up to, it was, it was obvious. We have learned the U.S. already knew that this man, senior al Qaeda leader Abu Anas al-Libi was in Libya, tasked by the head of al Qaeda to establish a clandestine terrorist network inside the country. Al-Libi was already wanted for his role in bombing two U.S. embassies in Africa.

"[T]he simultaneous attacks are bound to fuel accusations that the administration was eager for a showy victory."

Says the NYT, reporting on the U.S. military operations in Libya and Somalia today.

Officials said the timing of the two raids was coincidental...

But at a moment when President Obama’s popularity is flagging under the weight of his standoff with Congressional Republicans and his leadership criticized for his reversal in Syria, the simultaneous attacks are bound to fuel accusations that the administration was eager for a showy victory.

"I think the hunger strike ended because the men achieved their objectives."

"As far as I know, Korans are not being searched. Guantánamo has returned to the national agenda. And President Obama has renewed efforts to close it. And, frankly, six months is a long time to be on a hunger strike."

All right then. All is well in detaineeworld. 

Another job well done by leading-from-behind Obama.

"There is no spying on Americans."

"We don't have a domestic spying program."

"I'm not going to be scrambling jets to get a 29-year-old hacker."

Said Barack Obama, noting that he would use "well-established" channels to get Edward Snowden, according to a CNN Breaking News email.

Note the minimizing of Snowden in the expression a "29-year-old hacker." Like he's just a kid who fiddles with computers.

And "scrambling jets" seems to say: Forget that whole drone program I'm so famous for. Or is that what "well-established" channels means?

"Afghan President Hamid Karzai on Wednesday suspended negotiations with Washington..."

"... over a security agreement that would regulate the presence of U.S. troops here beyond 2014, apparently angered by the U.S.-backed initiative to start formal peace talks with the Taliban in Qatar."

The announcement came a day after Taliban envoys appeared before reporters to give a U.S.-demanded statement that they did not want to plan or launch attacks on other countries from Afghan soil, and were open to talking with other Afghans....

However, the Taliban representatives also told reporters that their group would continue fighting NATO and Afghan troops inside Afghanistan even as the U.S. and Taliban delegations explore the possibility of peace talks. In keeping with that statement, the Taliban asserted responsibility on Wednesday morning for a rocket attack on a large U.S. base in eastern Afghanistan that killed four American troops.

Charlie Rose interviews Obama about Iran, Syria, the NSA leaks, etc.

The 45-minute video.

"On March 12, 2004, acting attorney general James B. Comey and the Justice Department’s top leadership reached the brink of resignation over electronic surveillance orders that they believed to be illegal."

So begins the WaPo article titled "U.S. surveillance architecture includes collection of revealing Internet, phone metadata." It continues:

President George W. Bush backed down, halting secret foreign-intelligence-gathering operations that had crossed into domestic terrain. That morning marked the beginning of the end of STELLARWIND, the cover name for a set of four surveillance programs that brought Americans and American territory within the domain of the National Security Agency for the first time in decades. It was also a prelude to new legal structures that allowed Bush and then President Obama to reproduce each of those programs and expand their reach.

Much more at the link.

"Now that President Obama's administration says it's prepared to arm Syria's rebels, this raises a question relatively few people can answer:..."

"Who exactly are these guys?"

Are The Rebels United?

No.... U.S. policy shows the sharp distinction the Obama administration is making between the various factions. Weapons will be going to more secular groups, while the administration has declared the leading Islamist faction, Jabhat al-Nusra, a terrorist organization.

Trust the Obama administration to make sharp distinctions, count on the Syrian rebel groups to maintain sharp distinctions, and expect the distinctions to continue into the future if the rebellion succeeds.

WaPo-Pew poll: 56% of Americans support NSA access to phone records. 41% oppose.

Back in 2006, when Bush was President and before a court order was part of the procedure, there was a poll that showed 51% support and 47% opposition.

There was also a question about what's "more important right now" — "for the federal government to investigate possible terrorist threats, even if that intrudes on personal privacy" or "for the federal government not to intrude on personal privacy, even if that limits its ability to investigate possible terrorist threats." In the new poll, 62% favored investigations and only 34% said privacy. The partisan skewing here is fascinating:

Sixty-nine percent of Democrats say terrorism investigations, not privacy, should be the government’s main concern, an 18-percentage-point jump from early January 2006...  Compared with that time, Republicans’ focus on privacy has increased 22 points.

The reversal on the NSA’s practices is even more dramatic. In early 2006, 37 percent of Democrats found the agency’s activities acceptable; now nearly twice that number — 64 percent — say the use of telephone records is okay. By contrast, Republicans slumped from 75 percent acceptable to 52 percent today. 

Compared with a 2002 Pew poll, Democrats are now 12 percentage points more apt to support the government’s monitoring of all e-mails and other online activity if officials say that it might help prevent terrorist attacks. On the flip side, the number of Republicans who say the government should not do this has increased by 13 points.

That reminds me of the poll I took on June 7th, based on my observation that "The NSA data collection program separates the partisans from the ideologues, now that the President is a Democrat":



Maybe there's an algorithm that can get us to what Americans really think of privacy and security, without the filter of partisanship, but I'm afraid there is no such real thinking. It's all, always, inside the filter, even the desire to present oneself as ideologically consistent.

"If the NSA leak is a bid by Obama to gain sympathy, it's working."

Says Meade, just now. (Note to Althouse blog outsiders: Meade is my husband. He doesn't blog. He's a commenter. Sometimes he comments in the comments here, sometimes over at Isthmus, and sometimes not on the Internet at all, but on what we call the Neighborhoodnet, at least in the summer, when the windows are open and voices carry.)

We've been speculating about Obama's possible complicity in leaking the NSA story. To participate in this conspiracy theorizing — come on, you know you want to — you need to come up with reasons why Obama and his people would see a benefit to his political interests in releasing this story. We know that in the post-Benghazi period, the administration has dropped scandals on top of scandals. The IRS scandal was dumped on top of Benghazi, distractingly.

But letting out a national security secret? That's something that should never have come out, as opposed to something that was going to come out eventually (where the decision would be when — not whether — to let it out).

But the NSA program is also different in that — unlike Benghazi, IRS, etc. — it wasn't a screwup. It was quite intentional, and it's something they can and will defend. We're not going to hear the usual statements about doing a thorough investigation into how something like that could have happened and the need, going forward, to insure that it never happens again. It's an opportunity to talk about competence. This scandal/"scandal" requires us to focus on the most serious duty of government — national security — and a program that is carefully planned and implemented and (apparently) completely legal.

Now, libertarians and lefties are enraged, and we've been hearing a lot from them in the last few days. Consider whether this is just what Obama wants. Get Rand Paul over there with Glenn Greenwald and his crowd. Let them blow off steam. Meanwhile, the moderates, including many moderate conservatives, are gravitating toward Obama. The left and right extreme are peeling off together, going to their happy place where the fear of foreign terrorists goes numb when Our Own Government threatens Our Liberty.

But the vast middle is coalescing... around Obama... just as planned.

Discuss!

Some clarification about what the government does with the 3 billion phone records it collects every day.

I'm not saying the first guest on today's "Fox News Sunday," Rand Paul, wasn't sharp and interesting, but I really appreciated the knowledge and calm expertise that General Michael Hayden, who headed the NSA and the CIA (under Bush), brought to the table. (The boldface is mine.)

CHRIS WALLACE: General Hayden, let's talk first of all about the general reaction you have to Senator Paul. I'm going to get into specific issues with you. As a man who used to run these programs, how important and how effective have they been in keeping us safe and how do you feel when you hear Senator Paul talk about class action lawsuits to the Supreme Court, new congressional restrictions?

GEN. MICHAEL HAYDEN, FORMER HEAD OF NSA AND CIA: Well, first of all, Chris, with regard to how effective they are, I think they're very effective. We had two presidents doing the same thing with regard to electronic surveillance. Now, that seems to me to suggest that these things do work. Now, with regard to what the senator said -- if I believed NSA was doing some of the things the senator fears they're doing, I would have been backstopping him during your first segment. He said we're trolling through millions of records. That's just simply not true. The government acquires records as business records from the telecom providers, but then doesn't go into that database without an arguable reason connected to terrorism to ask that database a question. If you don't have any link to that original predicate, terrorism, your phone records are never touched.

WALLACE: Well, let's get into that and let's talk a little bit -- and I know we're getting into kind of a sensitive area here about the tradecraft that you were involved with -- as especially the head of the NSA, but also the CIA. According to one estimate, the NSA is getting the phone records of 3 billion of our phone calls every day -- 3 billion phone calls every day. Two questions: one, how can you possibly process 3 billion records a day? And, secondly, why not just target, from the very beginning, the bad guys?

HAYDEN: Well -- well, first of all, you have to identify who are the bad guys. So, let's begin the acquisition. Three billions is a big number. Keep in mind, Chris, that our telecommunications providers do that every day on their own. So, it's not impossible to do. Now you've got the data stored. Here's the important part and this is the part that protects civil liberties and balances... security and our freedom.

You ask the database a question, but the question has to be related to terrorism. I'll give you a concrete example so this is very clear. So, you roll up something in Waziristan. You get a cell phone. It's the first time you've ever had that cell phone number. You know it's related to terrorism because of the pocket litter you've gotten in that operation. Here's how it works: you simply ask that database, hey, any of you phone numbers in there ever talked to this phone number in Waziristan? I mean, you're already going into the database with the predicate, with a probable cause, with an arguable reason why you're asking for the data.

WALLACE: I've been talking -- obviously, this has been the subject in Washington and across the country this week. People are concerned about this mountain of data that you have. OK. I mean, what you say sounds perfectly sensible. You know that there's a guy in Waziristan. You want to know who he's talking to in the United States. One, what do you do with all the records, the billions of records that you have on all of us law-abiding citizens and what's the potential for abuse with the fact that you have all of that stored in computers somewhere?

HAYDEN: First, to answer your question, what do we do with all of the other records? Nothing. All right?

WALLACE: You keep it, though.

HAYDEN: Of course, because -- I mean, you get the cell phone with that number six months from now you want to know the history of that number. When does the value of that information begin to age off? So, you do retain the information so that you can ask questions of it in the future. With regard to abuse, there are no records of abuse under President Bush, under President Obama.

Now, I was criticized because I theoretically didn't have enough oversight mechanisms, but no one accused us of abuse. President Obama has in some ways added incredible oversight mechanisms to this. Again, no abuse under either president.

WALLACE: ... Back in 2006, Senator Obama voted against your nomination to be CIA director because of your involvement in government programs. From what you know and I understand you've been on the outside, how much has he changed? He expanded, restricted these government surveillance programs that he inherited....

HAYDEN: Expanded in volume, changed the legal grounding for them a little bit, put it more under congressional authorization rather than the president's Article II powers and added a bit more oversight. But in terms of what NSA is doing, there is incredible continuity between the two presidents.

WALLACE: How do you mean he's expanded in volume?

HAYDEN: Well, it may just because we've gotten more of these records over time and with the amendment to the FISA Act in 2008, which Senator Obama finally voted for, NSA is actually empowered to do more things than I was empowered to do under President Bush's special authorization.

Now, obviously, there's worry about abuse, and the fact that we haven't seen "records of abuse" isn't that reassuring, especially when we're so aware of the abuse for political purposes within the IRS. That topic came up later in the show during the panel discussion:

WALLACE: Well, Bill, as someone who I suspect thinks that these surveillance programs are a necessary part of the war on terror, do you worry that all the leaks, all the disclosures this week are going to create some sort of backlash?

BILL KRISTOL, THE WEEKLY STANDARD: I do, particularly because they're coming into context of genuine abuses of government power, especially by the IRS. I think the big thing to remember is national security is different from internal management of the government. We're dealing with foreign terrorist threats here. And, secondly, apparently this program really does require court orders to go target particular individuals or groups. You can't just then migrate through the whole database and data mine and say this looks suspicious. You need to say this is a group in Waziristan. Let's see who they're talking to. And if they're talking to me, you then have to go back to the court and get an order for me. That is not what the IRS did, obviously. Lois Lerner on her own decided let's target people who have Tea Party in there...

WALLACE: But you would agree that when Rand Paul says what he says about, you know, let's have specific targeting and let's not just Hoover off, vacuum up all of this information on law-abiding citizens, that certainly has at least a political appeal.

KRISTOL: Maybe. But honestly, I think the concern is Republicans are making a huge mistake. A, I think it's mischaracterizing what's happening. They're getting a lot of data because they don't want to have to go to Verizon and AT&T and everyone else each time they get a phone number. But they're not allowed to go into that data until they have a particular warrant signed off on by a judge, with some cause to suspect a foreigner of terrorism -- that is totally different from the IRS abuses, which I think are very serious. And I think it's very important for conservatives and Republicans to make that distinction....

"Make no mistake, NSA can and will perform its missions consistent with the Fourth Amendment and all applicable laws."

"But senior leadership must understand that today’s and tomorrow’s mission will demand a powerful, permanent presence on a global telecommunications network that will host the ‘protected’ communications of Americans as well as the targeted communications of adversaries."

National Security Agency memo from the Clinton era, highlighted at Politico under the headline "NSA memo pushed to 'rethink' 4th Amendment" and noting "The quotes around 'protected' appear in the original document." (I haven't read the memo, but the quotes around "protected" may have to do with the third party principle discussed here.)

Also at the Politico link:

The NSA has been a central player in U.S. cyber strategy since at least 1997, according to a separate declassified memo obtained by [George Washington University’s] National Security Archive. That document describes how the administration of President Bill Clinton assigned NSA with “Computer Network Attack” — “a natural companion to NSA’s exploit and protect functions,” the memo said.

But it wasn’t until later, after the infusion of billions of dollars and the new legal authorities that followed the Sept. 11 terrorist attacks, that NSA’s capabilities grew to the scale revealed this week.

I note the groundwork for the argument: Bill Clinton would have averted the 9/11 attacks. Also: Everything is Bush's fault. Before 9/11, he didn't do what Clinton told him to do. After 9/11, he did too much.

"PRISM Stopped Najibullah Zazi From Blowing Up Backpacks in the Subway."

New York Magazine reports:

But amid all the uproar yesterday and today, a report from CBS's John Miller — formerly of the FBI and a fairly plugged-in guy — went largely unnoticed.

"If you look at the Najibullah Zazi case, you have a classic example there. So on September 6, 2009, around dawn, an e-mail comes from an IP address to another IP address. One of them is nothing we're paying attention to. The other is one that has been flagged as an al Qaeda mail drop that is rarely used."

"And so when that bell rings, they say, 'Hey, they hardly ever use this account, but it's associated with Rashid Rauf, who is al Qaeda's master bomb maker, behind the plot to blow up all the airplanes, 'Who's he talking to?' And when they find out the other IP address on the other end resolves to Aurora, Colo., outside Denver, it connects them to Zazi, it takes them to the plot to blow up the New York subways, it's all prevented. That's how a program like this is supposed to work."...

Do you want that or not?

ADDED: Here's an article that questions whether PRISM is what caught Zazi. (Via Instapundit.) I'd seen that kind of questioning before I put up this post, but the New York Magazine piece says:

For what it's worth, the Telegraph has previously reported that Scotland Yard intercepted the e-mail, however, the U.K. reportedly also has access to PRISM.

Of course, opponents of PRISM have reason to want to deny that it's working to fight terrorism, even as its defenders are going to want to claim that it is. I'm not a proponent or an opponent at this point. I don't know enough, and — like Obama the President as opposed to Obama the Candidate/Senator — I believe it to be a complicated balance.

"If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges..."

"... to make sure that we’re abiding by the Constitution, due process, and rule of law, then we’re going to have some problems here," Obama said.

Lawprof Steve Shiffrin (at the Religious Left Law blog) says:

The problem is that federal judges ran away from the Constitution years ago on this very issue, and the President’s characterization of this program as a “modest encroachment” on privacy shows that he either lacks integrity or he has an impoverished conception of privacy....

The notion that we should trust federal judges to uphold the Fourth Amendment is impossible to take seriously.  As the Supreme Court stated in United States v. Miller, “This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” This third party principle permits the Federal Government without probable cause or even reasonable suspicion and without any notice to you: to get all of your bank records, a record of who you have sent mail to and received mail from, and who you have phoned and who phoned you...  The claim is that we have no reasonable expectation of privacy in material we have exposed to a third party like a bank, a post office, or an internet provider.  This line of reasoning is worthy of a totalitarian state.....

Another way of putting that is to say we might be able to trust the judges to follow the existing legal doctrine, but the 4th Amendment doctrine doesn't protect us as much as you might think.

"You can’t have 100 percent security and then also have 100 percent privacy and zero inconvenience."

"You know, we’re going to have to make some choices as a society."

Strangely...

... this is kind of why I voted for Obama!