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Monday, December 09, 2019 {{ new Date().getDay() }}

The War on Terror has transformed the Department of Justice into an arm of the intelligence community— hijacking an institution charged with upholding the Constitution and the rule of law and using it as legal cover for mass surveillance and torture. No one has detailed that monumental shift in policy like Karen Greenberg, Director of the Center on National Security at Fordham’s School of Law. Greenberg’s Rogue Justice is a deeply-reported expose of the architects of the War on Terror at every level of government. What follows is an exclusive excerpt from the book:

The most unusual thing about the case argued in federal court in Providence, Rhode Island, on June 19, 2008, was not that the court convening it, the FISA Court of Review, had met only once be­fore in its thirty-year history. It wasn’t the way technicians had swept the room for bugs and cut it off from the Internet, turning Court­room 3 temporarily into a Sensitive Compartmented Information Facility (SCIF). It wasn’t the briefcases full of classified informa­tion that the three Justice Department lawyers had physically held on to for the hours-long trip from Washington, or even the intrigue surrounding their journey, which had led at least one of them to lie to his wife about his destination that day. And it certainly wasn’t the argument itself, in which a government lawyer once again asserted that the war on terror could not be fought without restricting Fourth Amendment rights, while his opponent countered that to take away civil liberties in the name of national security was to compromise the very principles for which the war on terror was being waged.

No, the strangest thing was that the lawyer worrying over constitutional rights, Marc Zwillinger, was not from the ACLU or the Center for Constitutional Rights; nor was he representing de­tainees or tortured prisoners. Instead, he represented a large Ameri­can corporation: the Internet company Yahoo! The issue at hand was a government order forcing Yahoo! to “assist in warrantless surveillance of certain customers” by turning over records of their communications. Yahoo! had so far failed to comply with this order, a defiance that was about to cost the company $250,000 a day in fines. But Zwillinger’s argument in court that day wasn’t about the cost or difficulty of supplying the government information about the private communications that passed through its servers in Califor­nia. And it was only a little bit about the consequences to its bot­tom line should its customers discover the breach. Mostly Yahoo!’s objection rose above petty corporate interests and invoked the basic principles of American jurisprudence. The government, Zwillinger told the three-judge panel, was compelling his company “to partici­pate in surveillance that we believe violates the Constitution of the United States.” It was refusing to supply the data on principle. It was evidently one thing for a corporation to amass huge amounts of data on its customers to sell to other corporations—which was, after all, Yahoo!’s business model—and another for that company to be required to provide its information to intelligence agencies. But while the court at least listened to the constitutional argu­ment, it wasn’t buying it. In August, it upheld Walton’s decision. The bar for domestic surveillance might once have been high, but that was before 9/11, the Patriot Act, and the Protect America Act, and, wrote Judge Selya, “that dog will not hunt” any longer. “The inter­est in national security is of the highest order of magnitude,” he ex­plained. So long as the “purpose involves some legitimate objective beyond ordinary crime control,” he continued, there is a “foreign intelligence exception to the Fourth Amendment’s warrant require­ment.” Under this reasoning, the president’s authorization “at least approaches a classic warrant” and thus preserves enough of the in­tent of the Fourth Amendment to be considered constitutional. It would be another five years before Americans—including, pre­sumably, Judge Selya and Solicitor General Garre—were alerted by Edward Snowden to how misplaced their trust was.

Adapted from ROGUE JUSTICE: THE MAKING OF THE SECURITY STATE Copyright © 2016 by Karen Greenberg. Published by Crown Publishers, an imprint of Penguin Random House LLC.

Democratic nominee Joe Biden

If you were a Trump supporter anticipating a ruinous assault on Joe Biden's integrity during that final debate, too bad. What you got instead was a series of incomprehensible outbursts from Donald Trump, who seems to assume that everybody believes whatever nonsense they hear on Fox News, just like he does.

The day after the debate was even more disappointing. The Wall Street Journal, owned by Fox News chairman Rupert Murdoch himself, dropped a front-page investigative report that directly contradicted Trump's accusations about Biden and China. The only candidate with unseemly business over there is Trump himself, whose secret account in a Chinese bank was just exposed.

For months, Trump and his minions have hyped allegations of financial corruption against Biden and his son, Hunter Biden. Trump got himself impeached, with the help of legal genius Rudy Giuliani, over his attempt to force Ukraine's president to open a fake corruption probe of the former vice president and Burisma, the energy firm that once employed Biden's son Hunter. Their deception collapsed when Trump and Obama administration officials testified – with ample documentary evidence – that Biden had done nothing to protect Burisma and only carried out United States and European initiatives against corruption in Ukraine.

But that failure didn't discourage Giuliani, former Trump campaign chief Steve Bannon, or the other fabricators in the Trump entourage. In recent days, they have unveiled a mysterious laptop computer that purportedly belonged to Hunter Biden and reached Giuliani and then the New York Post through a series of implausible events. There are clues that the electronic data on the laptop was invented or altered. Who might do that? Let's see: The Kremlin is seeking to harm Biden politically, and Giuliani has openly welcomed the assistance of Russian intelligence assets, so the answer is fairly obvious. Especially because Russian agents provided similar services for the Republican candidate four years ago.

When the laptop gambit flopped, the Trumpsters still didn't give up.

On the eve of the debate, a Wall Street Journal columnist published a claim that Joe Biden personally profited from investments in China fronted by Hunter. Her column was based on assertions by a shadowy but euphoniously named businessman, a certain Tony Bobulinski. In a move worthy of that old pardoned felon Roger Stone, Bobulinski actually attended the Nashville debate (after staging a "press availability" where he refused to answer any questions.)

Unfortunately for both Bobulinski and that eager Journal columnist, her newspaper on Friday published the investigation that cratered their nefarious tale. After months of actual reporting, the Journal's real journalists found that the venture cited by Bobulinski "never received proposed funds from the Chinese company or completed any deals." Moreover, corporate records reviewed by the Journal's reporters "show no role for Joe Biden."

So far the Biden "scandal" most closely resembles Whitewater and the entire panoply of Clinton finance scandals that never revealed any wrongdoing whatsoever. Whatever Trump may spew and sputter, there is no plausible evidence that has been subjected to examination by journalists of integrity.

And fortunately for Biden, the nation's traditional news outlets are approaching the allegations against him with a cool and appropriate skepticism. That wasn't the case in 2016, the last time Steve Bannon played the same games. For Bannon and Giuliani, as well as their echoes across right-wing media, the objective was always to launch their false narratives into the mainstream. They succeeded brilliantly in 2016, with the assistance of the New York Times and other news organizations that should have known better and done better. This time they are failing.

In promoting these serial smears, the risk for Donald Trump is always that someone competent will inspect his record. That's what should have happened four years ago, when he and Bannon falsely attacked the Clinton Foundation while concealing the sordid truth about the Trump Foundation, a brazen criminal enterprise.

That 2016 frameup was a classic instance of projection – and we can assume the same dynamic is at work today. So now is the time to scrutinize all of the Trump Organization's crooked, conflicted deals overseas – and how he and his family have profited from his presidency.