Category: Rule of Law

What Class Warfare Looks Like


Mike Konczal has a rough transcript, starting about 45 seconds in:

Representative Barca:  Excuse me, Mr. Chairman I have a question about the open meeting rule being violated…Most importantly, before we even get started, obviously I’m going to want to have a summary of this bill from our director Lane, so I understand what’s in here.

Chairman:  It’s the same bill you debated for 60 hours.

Barca:  So there’s nothing different?

Chairman:  No.  We just removed items from it.

Barca:  Removed what?

Chairman:  Removed items.  There’s nothing new.

Barca:  So can we get a description of what was removed?

Chairman:  Nothing new.

Barca:  Well, you said things were removed Mr. Chairman.  I want to know what’s removed.  It seems to me that the body should have and our community should know what we are voting on.  So what was removed?  I need to know that.  So I do want a description from Director Lane….But before we even get into that I want this is a violation of the open meeting law.  It is required, I have here a memo from the current Attorney General, not a past one the current one.  August 2010.  No Wisconsin Court decision will allow meetings unless you have good cause to provide less than 24 hours notice of a meeting.   The provision, like all other provisions of the open meetings law must be construed in favor of providing the public with the fullest and most complete information about government affairs…

Chairman:  Representative Barca.

Barca:  that’s compatible with government business…

Chairman:  Representative Barca.  Clerk, call roll.

Barca:  NO EXCUSE ME  It says if there’s any doubt as to whether or not good cause exists the governmental body should provide 24 hours notice. This is clearly a violation of the open meetings law.  You have been shutting people down…

Members:  Aye.

Last night was as clear an example as any I’ve ever seen of how Republicans are waging class war on the American middle class. As Rep. Barca points out, what the happened in Wisconsin during last night’s conference committee meeting clearly violated the state’s open meetings law, which require 24 hour notice prior to a governmental meeting. David Dayen has been astutely documenting the ways in which how the WI Senate Republicans split off the repeal of collective bargaining to make it “non-fiscal” (despite arguing for a month that it was a fiscal provision) failed to actually remove fiscal items from the language they voted on:

But that does not address the potential fiscal impact in what remained. On page 12 of the LFB memo you see a item that would “reduce funding… in the Joint Committee on Finance’s general program revenue supplemental appropriation.” On page 17, you see the changes to public employee health and pension benefits. On page 33, there’s an inclusion of a particular piece of wetlands in a tax incremental financing district, which appears to be tax relief. It would be hard to imagine that these pieces don’t have a fiscal impact. In fact, the Wisconsin State Journal, one of the more staid publications in the state, basically came this close to accusing the Republicans of outright lying

One of the Wisconsin 14 Democratic State Senators who’ve bravely stayed away for the last number of weeks and created the delay that allowed protests to gather steam did in fact go so far as to call Governor Walker a liar last night on MSNBC (sorry I don’t have the quote). State Senate Minority Leader Mark Miller had this to say after the Republicans dishonest and dishonorable actions yesterday:

“In thirty minutes, 18 State Senators undid fifty years of civil rights in Wisconsin.

“Their disrespect for the people of Wisconsin and their rights is an outrage that will never be forgotten.

“Tonight, 18 Senate Republicans conspired to take government away from the people.

“Tomorrow we will join the people of Wisconsin in taking back their government.”

The solidarity between Wisconsin Democrats, unionized workers of both the public and private sector, students and the general public has been truly inspiring. It will continue in the face of this latest assault and I can’t imagine anything but a further slide in approval for Gov. Scott Walker and the Republicans in Madison who rammed this bill through over unprecedented public opposition.

Iowa AG Miller’s Term Sheet with Banks

The 27-page term sheet between the group of 50 state Attorneys General, led by Iowa AG Tom Miller, and the banks is online and it isn’t pretty. There are a few categories I see this term sheet doing:

1. Getting things to work the way they are already intended to work under current law. This is the bulk of the term sheet;

2. Getting the servicers actions back in line with MBS investor interests and homeowner interests;

3. Improving systems for homeowners in sensible ways advocated by consumer groups.

But mostly #1. Fraud Digest writes, “For the most part, the settlement would require servicers to do exactly what they are already required to do.”

At FedUpUSA, Stephanie has a very detailed analysis:

Let’s be blunt: There’s no “there” there.

The entire document is a rehash of what servicers had a legal mandate to do right up front. Accurately apply payments. Respond to inquiries. Operate in good faith. Use a NPV test for HAMP (was in the HAMP program originally.) Document the assignment chain before foreclosing.

There’s exactly one substantive change, in that HAMP did not prohibit “dual-track” (that is, foreclosure while attempting modification.)

Yves Smith rips apart the landscape that bred this term sheet:

Team Obama has put on a full court press since March 2009 to present the banks as fundamentally sound, and to the extent they needed more dough, the stress tests and resulting capital raising took care of any remaining problems. Timothy Geithner was even doing victory laps last month in Europe. To reverse course now and expose the fact that writedowns on second mortgages held by the four biggest banks and plus the true cost of legal liabilities from the mortgage crisis (putbacks, servicer fraud, chain of title issues) would blow a big hole in the banks’ balance sheets and fatally undermine whatever credibility the officialdom still has.

But the fallacy of their thinking is that addressing and cleaning up this rot would lead to a financial crisis, therefore anything other than cosmetics and making life inconvenient for the banks around the margin is to be avoided at all costs. But these losses exist already. The fallacy lies in the authorities’ delusion that they are avoiding creating losses, when we are in fact talking about who should bear costs that already exist.

Smith goes on:

Even if these measures were tough-minded and vigorously enforced (two irrelevant “ifs”), they are still deficient. We don’t even know the extent of servicer abuses, since we are conveniently moving very quickly to avoid any serious probe, but there is considerable evidence that suggests that a lot of foreclosures were servicer driven. So merely fixing practices going forward, is necessary but far from sufficient. What are the remedies for people who suffered in the past? Of course, it’s horrifically difficult for individuals to prove their case, which is why having state AGs act on their behalf is the best remedy we have. And if that is going to be waived, the trade needs to be that the pubic gets something punitive, not just prescriptive.

…

In other words, this is simply another example of how the too big to fail banks are chipping away at the rule of law. The banks have over time have fought successfully to reduce the influence of state laws and regulations on their business while increasingly bending the Federal regulatory apparatus to their will. But the state AGs are still enough of a force to be reckoned with that the Federal bank regulators are now applying considerable to pressure them into abandoning initiatives that could help homeowners in their states. Hopefully at least a few of these AGs will wake up and have the self-preservation instincts to realize that this settlement is not in their or their constituents’ best interests.

David Dayen has a take that ends up being very close to where I am (it stems from his writing on an Iraq veteran whose home was illegally foreclosed and whose possessions were stolen by the servicer):

The main point is this: you can make all the guidelines you want, and basically, the 27-page term sheet has most of them. You can demand a single point of contact for borrowers, an end to the dual track process of the servicer pursuing modifications and foreclosures simultaneously, specific mandates for modifications and all the rest. You can even set stricter guidelines for dealing with military families. All of those are in the term sheet, and many of those kinds of guidelines are in the VA Home Loan that Sgt. Kevin Matthews received. It didn’t matter. Neither did all the promises servicers have made to reform their systems going back to 2003. Servicers pretty much don’t follow the law. That’s why they were under investigation. A document that tells them to comply with the law, in language the banks are already using, doesn’t seem like it’ll make much of a difference.

Two more things. Without rigorous enforcement, the guidelines are approximately meaningless. State AGs and the Consumer Financial Protection Bureau would serve as the enforcement monitors under the terms of the agreement. And CFPB adds a new wrinkle to this. However, if servicers have been abusing their customers for this long, and the term sheet mostly reinforces the same laws that they broke all this time (with a couple additional strictures), who’s to say that they won’t simply treat the Kevin Matthewses of the world the same way again?

The final issue is this. The term sheet sets the basic standards for conduct in the servicing industry that servicers should have followed all along. But this is supposed to be a sanction, for violations of law. So now the penalty for failing to follow the law is having to sign an agreement saying you’ll really follow the law this time? We don’t know what monetary penalties or quotas for principal mods will come along with this yet. But we do know this. Kevin Matthews had all his possessions stolen from him, and nobody under this agreement will go to jail for that theft.

The term sheet is not a full deal. We don’t know if there will be any financial penalty to along with it. We don’t know if banks will have a specific money budgeted for principal reduction. But the implication prior to last night was that whatever terms were agreed to would come in exchange for the 50 state AGs not pursuing criminal investigations. And I don’t see any of this, even good parts that will hopefully make life a lot easier for currently distressed home owners, as an appropriate trade for not looking backwards at illegal actions by servicers.

What’s most frustrating is that it seems that the things that need to happen are not happening not because of a lack of need, but because these AGs and federal regulators don’t have believe they have the political will to fight the banks or that the banks need to be protected from suffering the consequences of their action. Given that and everything else we’ve seen from regulators and AGs, I find it hard to believe that the provisions in this term sheet will be adequately enforced, that whatever commitment to principal modification that is made alongside this will be large enough to be meaningful, and that servicers will be sufficiently dissuaded from continuing illegal behaviors that squeeze people out of their homes. If there was a realistic chance of enforcement and if there ends up being a requirement for a large volume and dollar amount of principle modification and if the settlement effectively stopped servicers from behaving the way they have structured themselves to behave, this could be a good thing, as long as it also included a pathway for some of these fraudsters to go to jail.

I look forward to seeing the rest of this deal, as well as seeing if the rest of the state Attorneys General are actually on board with it. Until then, I will file this in the ever-growing section of things that might have been tolerable had they also looked backwards and held people accountable.

Mid-East Protests & The Internet Kill Switch

As the world watches massive demonstrations in Egypt, the Egyptian government has shut down the internet. There are also reports that Syria has done the same. These are desperate acts from governments that are terrified of their citizenry. Killing the internet is an effort to silence their citizens.

With that as a background, let’s take a look at Joe Lieberman, who is still pushing for an internet kill switch under control of the President in the United States. CNet reports:

A controversial bill handing President Obama power over privately owned computer systems during a “national cyberemergency,” and prohibiting any review by the court system, will return this year.

Internet companies should not be alarmed by the legislation, first introduced last summer by Sens. Joseph Lieberman (I-Conn.) and Susan Collins (R-Maine), a Senate aide said last week. Lieberman, an independent who caucuses with Democrats, is chairman of the Senate Homeland Security and Governmental Affairs Committee.

In the pantheon of bad ideas that Joe Lieberman has pushed over the last 20 years, this has got to be one of the worst.

On Wikileaks

I think Digby has written the best piece on why Wikileaks is important and what stance progressives should hold towards it. This passage is of note:

It’s true that much of what’s been revealed in the last year has pertained to US foreign policy, but the US is the world’s superpower, spending more on its military than the rest of the world combined, has more global interests and more connections. It’s natural that it would be a primary subject for such revelations. But that doesn’t mean that Wikileaks is only interested in the US or is working on behalf of others to bring it down. Remember, it’s certain Americans who have felt compelled to reveal these secrets about out country. Why the messenger should be shot is beyond me.

Also:

People feel very strongly about this on all sides and that’s fine. But I do think that there is one thing we should all agree on: the appalling open calls for Julian Assange’s assassination are barbaric authoritarianism at its worst. (The obvious attempt to smear him as a sexual predator for alleged condom failure fall into the same category.) The man put some documents on the internet and there is a vigorous global debate going on about it. If there was ever a case for public servants and the media (which should all clearly be on the side of Wikileaks, in my opinion) to be circumspect in their language it’s in this case. I’m astonished that these calls for murder are so casually accepted. (But then, we are living in a country in which torture is accepted, so I’m probably foolish to keep clinging to these silly notions about civilized, democratic behavior.)

PFC Manning is known to have leaked documents to Assange. He has been arrested and faces court martial and a very long jail term if convicted.  Wikileaks is just a messenger and not the only one (eg., the Guardian provided the New York Times with this round of documents the US paper of record has reported on). Given that the leaks are in no ways exclusively damaging to the US, but most other major governments of the world, it’s really hard for me to get the hysteria around Wikileaks as being particularly anti-American. Throw in that there are as of yet no documented cases of people being hurt or killed as a result of the leaks and I think this is not much more than powerful people (mostly governments) coming together to defend themselves from facing public scrutiny. That the reaction from Western governments and the Chinese government is functionally the same is both disturbing and telling of the commonalities between threatened elite power structures, regardless of what governmental system they exist in.

This Is A Problem

This paragraph, in the New York Times article on the 9th Circuit Court of Appeals ruling against former CIA prisoners who were tortured in overseas prisons after their extraordinary rendition, is the sign of a very large problem:

The sharply divided ruling was a major victory for the Obama administration’s efforts to advance a sweeping view of executive secrecy powers. It strengthens the White House’s hand as it has pushed an array of assertive counterterrorism policies, while raising an opportunity for the Supreme Court to rule for the first time in decades on the scope of the president’s power to restrict litigation that could reveal state secrets.

For the life of me, I cannot remember President Obama campaigning for office on “a sweeping view of executive secrecy powers.” And it’s not just this.

Among other policies, the Obama national security team has also authorized the C.I.A. to try to kill a United States citizen suspected of terrorism ties, blocked efforts by detainees in Afghanistan to bring habeas corpus lawsuits challenging the basis for their imprisonment without trial, and continued the C.I.A.’s so-called extraordinary rendition program of prisoner transfers — though the administration has forbidden torture and says it seeks assurances from other countries that detainees will not be mistreated.

Again, even without checking the cached versions of BarackObama.com, I’m quite certain these were not core planks in the Obama campaign’s case to the American public about what an Obama administration would do regarding civil liberties, the rule of law, and restoring the Constitution following Bush/Cheney administration abuses.

Of course, looking beyond his candidacy for office, we were told by President Obama in February 2009 that:

Living our values doesn’t make us weaker, it makes us safer and it makes us stronger. And that is why I can stand here tonight and say without exception or equivocation that the United States of America does not torture.

I suppose it is technically true to say that “America does not torture” as long as any people who have been tortured or subjected to rendition are denied their day in court and the chance to present evidence that these things happened. Of course, putting our hands over our ears and shouting “La la la la la la” whenever someone tries to have legal remedies for torture doesn’t exactly constitute any lived value I learned about in civics class or Sunday school.

Glenn Greenwald makes an observation that I think captures the gravity of what is actually happening now under President Obama, following what happened under President Bush:

The history of America’s torture regime will record not only the criminality and shamefulness of the torture itself, but also the subsequent — and ongoing — effort by the U.S. Government to prevent its victims from obtaining any justice while protecting the perpetrators from all accountability.

To say that I am disappointed with the administration’s embrace of illegal and immoral legal doctrines put forth by the Bush administration’s sadistic and un-American legal team is an understatement. I’m embarrassed by it. It is indefensible, especially when done by a President who at one time taught constitutional law. A lot was made earlier this week when General Petraeus said that if a rightwing church in Florida burned the Koran, “It could endanger troops and it could endanger the overall effort in Afghanistan.” I really hope that the Mighty General speaks up again, because I don’t know how hiding behind state secrets privileges to protect torturers does anything to help our presence in Afghanistan nor the troops the President has sent there.

As a side note, Marcy Wheeler writes:

So basically, the government can kidnap you and send you to be tortured–as they did with Binyam Mohamed–yet even if your contractors acknowledge what they were doing, if the government wants to call their own law-breaking a secret, the most liberal Circuit Court in the country agrees they can. [Emphasis added]

Among other things, this is as solid example as exists today as to why we need more liberal judges confirmed to the federal bench.

At War

Reading Glenn Greenwald’s latest posts on the war in Afghanistan and the bizarre place the rule of law currently stands in America (viz. no longer existing in a meaningful form), I can’t help but think that Hunter S. Thompson was 100% right and utterly prescient when he wrote this on the morning of September 12th, 2001 on ESPN.com:

The towers are gone now, reduced to bloody rubble, along with all hopes for Peace in Our Time, in the United States or any other country. Make no mistake about it: We are At War now — with somebody — and we will stay At War with that mysterious Enemy for the rest of our lives.

It’s truly saddening that Thompson continues to be proved right, day in and day out, five years beyond the end of his life.

Latest Directives from PRC Propaganda Department

In the lead-up to the Shanghai World Expo, the Chinese government’s propaganda department has released a new set of directives for journalists covering the event. According to Reporters Without Borders, they include reducing coverage of the Jyekundo earthquake:

Reporters Without Borders has been told that another directive from the Propaganda Department on 25 April asked the media to reduce their coverage of the consequences of the Qinghai earthquake and increase the number of reports and features about the Shanghai exhibition.

According to the information obtained by Reporters Without Borders, the Propaganda Department has set the following rules for covering the earthquake: Talk of the earthquake in “scientific terms” ; Do not criticise the earthquake forecasting agency ; Do not focus too much on the efforts by Buddhist monks to help the victims ; and Give extensive coverage to the appeals for donations organised by state-owned CCTV.
…
The Information Office, whose responsibilities include monitoring the Internet, has reminded major news websites that they can not do their own reporting. As regards the earthquake, the government has ordered sites managers to make sure that reports contain no mention of the Dalai Lama and the solidarity campaigns organised by Tibetans.

Ladies and gentlemen, your next global super power.

Hacking & Moral Imperative

Andrew Jacobs of the New York Times has a powerful first-person perspective of his experience having his email hacked in China. Jacobs is a reporter for the Times in Beijing and has done some of the most important coverage of the Chinese government, uprisings in Tibet, protests during the Beijing Olympics, and other areas of concern.

Yesterday I had a conversation with Glenn Greenwald on Twitter about the relative outrage about (presumably) the Chinese government hacking into reporters’ email accounts compared to the deafening silence in the American media about the Bush administration instituting a program of warrantless wiretaps and electronic surveillance on Americans. Glenn is certainly right that there is more outrage when the spying is done by Someone Else, who almost certainly is Evil, while anything done by the US government is explained away as exceptional.

Of course the need for outrage and condemnation for surveillance and spying by one government isn’t obviated by the relative outrage surround another’s behavior. We can condemn the United States for warrantless wiretapping under the Bush administration and we can condemn the Chinese government for hacking email accounts of journalists and activists. There is an imperative for anyone who speaks out on the one to speak out on the other. We must be able to consistently condemn overreaching government surveillance, especially when it is done outside the law. I feel quite comfortable to condemn the Chinese government, as their actions outrage me and I am someone whose spent years fighting against the Bush administration’s warrantless wiretapping program.

Nonetheless Glenn is right: the volume of shock and outrage surrounding the Chinese government’s actions dwarfs response to the Bush-era programs.

It’s an entirely other thing to think about the fact that the United States is in the same boat as the Chinese government when it comes to spying on its citizenry.

Obama’s America

I feel like I’m in Bizarro World when the Democratic President and winner of the Nobel Peace Prize authorizes the assassination of an American citizen, without trial — something that not even George W. Bush, Dick Cheney, and John Yoo had the temerity to do. Glenn Greenwald’s analysis of how outrageous this is is a must-read. Greenwald documents all the ways and places both Obama and renowned liberal jurists like Antonin Scalia and Yoo say that actions short of assassination of an American citizen are not allowable. Obama himself opposed the detention of Americans without habeas corpus as fundamentally beyond a President’s power.

There are plenty of places where the Obama administration have continued on the path of the Bush administration when it comes to protecting a very expansive view of executive powers. This is one of the rare instances where Obama is actually going substantially further than Bush. Sadly, this most appalling assertion of executive power is also infinitely more offensive than warrantless wiretapping or detention without habeas corpus of Americans.  The President just said he can assassinate an American without trial. What a sad day for our country and for the rule of law.

Warrantless Surveillance Ruled Illegal

Judge Vaughn Walker yesterday ruled that the Bush administration program of wiretapping Americans without warrant required by FISA was, in fact, illegal. The Obama administration had fought to protect the same powers of the executive branch used by the Bush administration in this program and had attempted to block the case by using arguments on state secrets would be revealed if the case moved forward. Walker rightly rejected this Bush/Obama argument:

The judge characterized that expansive use of the so-called state-secrets privilege as amounting to “unfettered executive-branch discretion” that had “obvious potential for governmental abuse and overreaching.”

The Department of Justice can appeal Walker’s ruling, but Marcy Wheeler doesn’t think they will.

The state secrets defense and the broader use of arguments about the supremacy of the executive branch were key to the Bush administration’s construction of the war on terror. The continued defense of these arguments poses the risk of further excesses by the executive branch that fly in the face of the rule of law. In effect, what makes “unfettered executive-branch discretion” so scary is that it is the antithesis of the republic envisioned by the Founders, who knew the perils of monarchy and executive tyranny. Why we would suddenly forget the founding principles of our nation is beyond me. But at least there is a federal judge who is standing in the way of what has already been done as a bastion for the rule of law.