(Once again, something is written here that is far too long. What follows is missing one last insert that – how can one avoid being melodramatic? – contains the most astonishing material. It will only arrive by
July 2nd – this post will no doubt have to be broken in two, as there is just so much additional material. This second, last, part will arrive only by July 4th at the earliest, due to additional accompanying research.)
What follows is the result of one of many idle moments while researching a very long piece, when one delves into banalities in an attempt to escape your work and expend as little energy as possible. I looked, as I often do, at the search terms by which people get to this site. There was the ever present question, “whatever happened to helena kallionotes?” (the post which mentions and praises her, “Nicholas Roeg’s Eureka”, provides no answer), the perennial “morgue female corpse” and its dutiful companion, “beautiful dead woman morgue” (both of which end up not at the inevitable fate of us all, but at “Stanley Kubrick’s Eyes Wide Shut, Arthur Schnitzler’s Dream Story Part Three”, which features a distorted picture of the mortal beloved), “andy kaufman wrestling orgies” (“Harmony Korine’s Spring Breakers: The Future of Advertising”, those whores), the intriguing “women masturbate in the dark and scary places” most likely leads to “Darren Aronofsky’s Black Swan: Traumanovelle” and the practical minded but melancholy “how to know if hymen has been broken” no doubt ends up there as well.
It was the search for “mahtaub lolavar” which incited all that happened next, as I immediately wondered what had prompted interest in this fascinating, marginal character I’d once written about. Her path had crossed with that figure of shadowy and over-rated menace, political operative and troublemaker Roger Stone. This post in the ten part series, “Roger Stone: Pretty Reckless is Going Straight to Hell Part Six”, described the brief period when Stone was part of the lobby shop Ikon Public Affairs. Her name then wasn’t quite Mahtaub Lolavar, but Mattie Fein, and her consulting firm, Triumph Communications, were brought in for work on two contracts. And then she was dropped. And then she sued them: Lolavar v. de Santibañes, a lawsuit eventually dismissed on grounds of jurisdiction. The Santibañes at the heart of the suit was Fernando de Santibañes, the Secretary of Intelligence of Argentina, who was the man at the center of the second contract. Lolavar alleged that Ikon had asked that she obtain from SIDE, the Argentine intelligence agency, a list of journalists known to have taken bribes and then disseminate the information, all in order to counteract a bribery scandal involving the country’s president, Fernando de la Rua, and Santibañes. She was also supposed to make payments in order to obtain information from Israeli intelligence, which she would then alter to appear as coming from SIDE, information which would be used in some of Rua’s fights with his political rival, Dr. Carlos Menem – again, allegedly1. She would go on to start the Institute for Persian Studies, which was a think tank designed to shape the government of Iran following internal regime change. This institute was founded by Mattie Fein, but when she was interviewed by Spencer Ackerman about the project, “New Iran Regime-Change Think Tank Opens in DC”, she was now Mahtaub Hojjati. The think tank would fold, and in 2010, Mahtaub Hojjati would go on to run, and lose, against Jane Harman in California’s 36th congressional district – though she was now running under the name Mattie Fein. The race would produce this memorable ad, where she accused Harman of being the boyfriend of Mahmoud Ahmadinejad, though she refrained from saying Harman had cooties:
Mattie Fein would end her appearance on this site with the kind of exit that is my weakness, the enigmatic baroque. Her ex-husband was Bruce Fein, a lawyer who would achieve his greatest prominence working on Rand Paul’s lawsuit against the NSA – though a large chunk of this was unwanted. It came about after his wife accused Ken Cuccinelli, another lawyer in the suit, of stealing her husband’s material. “I am aghast and shocked by Ken Cuccinelli’s behavior and his absolute knowledge that this entire complaint was the work product, intellectual property and legal genius of Bruce Fein,” Mattie Fein would tell Washington Post reporter Dana Milbank. “Ken Cuccinelli stole the suit,” she’d add. And: that Rand Paul “already has one plagiarism issue, now has a lawyer who just takes another lawyer’s work product.” Cuccinelli was the former attorney general and hardline pro-lifer who’d just lost the governor’s race in Virginia. Cuccinelli isn’t a member of the D.C. bar, and has never even argued a case in its District Court. Milbank would cite uncanny similarities between the Fein and Cuccinelli drafts of the complaint, ones that couldn’t be explained away by coincidence, only willed migration from one text to the other. Ken Cuccinelli, Mattie Fein wrote, is “dumb as a box of rocks.”2
Mattie Fein was a mysterious figure, and Bruce Fein was as well. “GOP lawyer drafts Obama impeachment” by Ben Smith, about Fein’s efforts to impeach the president over the war in Libya, described him as “a prominent libertarian constitutional lawyer and civil libertarian”, a “small-government conservative”, and someone whose “work doesn’t represent the Republican Party line.” All this gave a distorted, if not utterly wrong, picture of Fein, and it was left to the fringes to correct it: “Libertarian Bum Fights (paywall)” by Mark Ames, depicted someone who often had no problem with violations of civil liberties or the big government war state. This profile helpfully pointed the reader in the direction of several past editorials by Fein. When Time magazine reporter Marc Cooper and “Meet the Press” host balked at the possibility of revealing sources to justice officials in relation to the Valerie Plame leak, Fein had no sympathy. “The free press defense to the subpoenas advanced by Messrs. Cooper and Russert was that confidential sources are indispensable to investigative journalism,” he wrote in “Losing sight of free press aims”. “But the assertion is dubious, and in any event should bow in a narrow category of cases where the sources themselves are government officials implicated in national security crimes.” In “AIDS in the workplace; The Administration’s impeccable logic”, he argued against workplace protections which would protect those suffering from AIDS and HIV from being dismissed because of their illness. When the Abu Ghraib scandal broke, he treated the revulsion as a hysterical reaction to a small and isolated instance of maltreatment. From “Abuse Hype”: “Wartime medals celebrate killing and capturing the enemy, not spotless records of compliance with the Geneva Convention or requests from the International Committee of the Red Cross,” he writes. “These contextual facts should make the microscopic number of detainee abuses a source of satisfaction with a stimulus for improvement, not a provocation for self-righteous sermonizing.” It was “Terrorism’s murky origins” in June 21, 2004 which gave his blunt force attitude towards the war on terror: “At present, little is known of the circumstances which give birth to terrorists,” he wrote. “Until this dearth of knowledge is overcome, the best way to handcuff terrorism is by killing, capturing and punishing terrorists period, with no commas, semicolons or question marks.”
“Bum Fights” would list a number of disreputable clients of Fein, including Sudan and the tobacco lobby. His firm, the Lichfield Group, once listed its work with the FBI, the CIA, and the Department of Homeland Security, and boasted of its high level connections with the CIA on its website. After transforming himself into a Ron Paul libertarian who worked as a consultant on his campaign in 2008 and 2012, these sections of his site would be scrubbed3. Bruce Fein was a former executive editor of “The World Intelligence Review”, an intelligence publication whose purpose was to boast the image of the CIA. In “Roger Stone: Pretty Reckless Is Going Straight To Hell Part Nine”, I touched on the fact that political consultant Roger Stone appeared to be playing a double role, outwardly a born again libertarian, inwardly perhaps trying to use the libertarian party in 2012 to effect a vote split and thereby pull off a win for Mitt Romney, a strange episode to which “Roger Stone: Pretty Reckless Is Going Straight To Hell Part Eight” is devoted. At the time, I thought I saw some of this same duality in Bruce Fein:
That he often appears to have no connection to any position, except his own practical interest, makes one wonder if perhaps Stone might not have been playing a true role as a consultant for the Gary Johnson campaign, but rather, attempting to achieve the very opposite, a split vote to bring about a victory for Mitt Romney. There is the equal question of Bruce Fein, who took a very hard right position with regards to war and foreign intervention, a commaless approach to capturing and killing terrorists, before suddenly changing position and demanding that Dick Cheney be brought to trial. He works as a consultant for Ron Paul, a lawyer for Lon Snowdon, Edward’s father, and works on Rand Paul’s lawsuit against the NSA – though at two crucial points, there are outbursts that seemingly sabotage the proceedings. He expresses suspicion that Glenn Greenwald and Julian Assange may be exploiting Snowden. He and his wife accuse Rand Paul of plagiarism. His wife, Mattie Fein (also known as Mattie Lolavar), has an equally strange history, heading up a think tank whose purpose was setting up a government in Iran after a regime change, and who was allegedly part of a political operation with Roger Stone’s consulting firm, IKON, which involved obtaining information from Israeli intelligence, while at the same time making sure never to attribute the information from this source. We might ask if Bruce Fein is also playing a dual role, a man who is a mole within the anti-surveillance community, attempting to cripple it from within. This question does not arise, I think, out of paranoia, but a secrecy as plentiful and ever present as oxygen, placing all characters under suspicion – is this person’s outward intent in fact obscuring the actual intent, an intent that is entirely its inverse?
“The obscurity surrounding Roger Stone is the vast force of secret money now ever present in elections,” I added. “The secrecy that surrounds Bruce Fein is that of the defense industry and the surveillance state.” These contexts rendered all characters within mysterious. So, this is what had taken place before I casually searched for “mahtaub lolavar”, wondering why someone was interested in her now, and one of the first results was Bruce Fein’s twitter feed (@BruceFeinEsq), where he brings her name up constantly, and always calls her a slut4:
The feed also features various maxims and lessons, with this one standing out a little incongruously amongst the various attacks on his wife5:
There is never a time for vengeance.—
Bruce Fein (@BruceFeinEsq) June 16, 2014
What exactly had incited all this was unknown. “What’s with all the slut shaming, Bruce?,” tweeted one of his followers. “Seems beneath you…has someone hijacked your Twitter account?”5 His account hadn’t been hijacked – these tweets went on and on, for several days. In a 2013 Washington Post profile, “In the Snowden case, Bruce Fein finds the apex of a long Washington legal career” by T.R. Goldman, Mattie Fein is referred to as his wife in name only. In another place, there was evidence that she was not even his wife in name only, that they had divorced years ago, and that he despised her then. From an October 5, 2010 post in a thread on a Ron Paul board, “Bruce Fein is awesome” (archive.today link), the awesome Bruce Fein’s now extinct Facebook page is quoted: “Today, I am celebrating the anniversary of my divorce from Mattie Lolavar, which lifted an incubus and removed gangrene from my daily matrimonial torture and torment.” The plagiarism scandal now looked more like it was a business partnership gone awry than anything else, the squalor of petty squabbling. Maybe Bruce Fein was willing to eat shit and take a lower rung on the ladder while his ex-wife felt they should have a place higher up in the totem pole. “Mattie Lolavar was not speaking for me,” Fein wrote after the scandal broke. “Her quotes were her own and did not represent my views. I was working on a legal team, and have been paid for my work.”6 Maybe Mattie Fein wanted to spoil her husband’s big moment. If there was one tweet which evoked the humiliations of marriage and divorce, and annihilated the nimbus of secret malevolent power it was this one. There was a comfortable familiarity to this – despite a well-known phrase that is often read without irony, unhappy marriages are often startlingly alike7:
Please only use for my email address firstname.lastname@example.org. I have been maliciously blocked from access to The Lichfield Group. Thanks.—
Bruce Fein (@BruceFeinEsq) May 09, 2014
It was during these searches that I came across a recent interview with Ian Masters for his excellent program, Background Briefing. What follows is taken from the episode “April 27 – Putin’s Hidden Fortune; The 20th Anniversary of the End of Apartheid – South Africa’s Freedom Day; The Rise of Rand Paul and Libertarian Activism on American Campuses”, a transcript of Fein’s segment dealing with libertarian activism, broken by my own occasional inconvenient interruptions:
Welcome back. I’m Ian Masters, and this is Background Briefing. And joining me in the studio is Bruce Fein, who’s a constitutional lawyer and formerly served as associate deputy attorney general under the Reagan Administration, general counsel of the Federal Communications Commission, research director for the Joint Congressional Committee on Covert Arms Sales to Iran, and a member of the American Bar Association’s Task Force on Presidential Signing Statements. He has authored several volumes on the United States Supreme Court, the United States Constitution and International Law, and helped write the articles of impeachment for President Nixon and President Clinton. Bruce Fein is the author of Constitutional Peril: The Life and Death Struggle of Our Constitution and Democracy, and his latest book is American Empire: Before The Fall. He has been a senior policy advisor to the Ron Paul 2012 campaign and was up to recently the lawyer for Edward Snowden’s father, Lon. Welcome to Background Briefing, Bruce Fein.
Thank you for inviting me, Ian.
And let’s start with Edward Snowden. I know that you were the lawyer for his father, and the father was trying, in effect, save the son from himself. In the sense that, he wanted to work out some kind of deal to protect his son from the fact that he’s obviously something of an international pariah, and effectively wanted by the United States government, and living under the protection of Vladimir Putin, with whom he shared the stage the other day at a very staged event that Putin does every year, a phone-in show where the giddy announcer says “Vladimir! Vladimirovitch! We have a surprise guest for you!” And then it was Edward Snowden, and they had a very softball conversation-
I don’t think there’s anything surprising that happens under Vladimir Putin’s watch. It’s all scripted. I think, Ian, it may be an overstatement to say that Edward Snowden is an international pariah, I think he’s achieved kudos in many countries, certainly Germany and the European Union, he’s received nominations even as the Nobel Prize winner. So I think the attitude is quite mixed.
Oh it is. I didn’t mean to suggest- I didn’t mean to suggest that he’s a pariah in the sense that he’d done something wrong. He’s just a- He’s stateless in effect. He’s wanted by the U.S.
Yes. And I believe that’s really because only China and Russia are able with economic and military power, to resist the United States leverage that would come over every other country based on military-economic ties and even the ability to orchestrate overthrow of governments in Chili, as in Guatemala. As in Latin America, as in Iran in 1953, so…it’s a tough decision, because obviously China and Russia are testaments to the kinds of surveillance that Ed Snowden deplores in his public statements.
So…what happened with your attempts, or the father’s attempts, to make some kind of a deal to get Edward Snowden out of Russia and back to the United States-
Well, there weren’t so much a deal, we did make overtures, Ian, to the Department of Justice, to try to insure if there was any return that the trial would be fair and not compromised by a frenzy of press statements by the Department, and other leaders in the Congress and the Executive branch, who have already convicted him of treason, even though he’s not charged with treason, without any trial whatsoever. And moreover, there was worry that he would receive Bradley Manning, or Chelsea Manning pre-trial treatment, those gruesome [sic] if not verging on torture. And, in substance, end up having a kangaroo court, rather than a due-process court. Those were ignored by the Department of Justice, the most the Attorney General Eric Holder was willing to say, and this was to the ministry of justice in Russia, was that Mr. Snowden would not be tortured if he was returned, because we are a signatory to the torture convention. Not convincing anyway, because despite the signatory status of the torture convention, it seems quite clear our waterboarding of detainees connected, allegedly connected with terrorism, violated our own criminal prohibitions on torture as well as the convention itself. So, I think that the department probably does not want Ed Snowden to return. I think they believe it could embarrass the government after all. After the disclosures, President Obama himself has narrowed the scope of the NSA surveillance program, we’ve got activity in Congress, and really, all of this is attributable to Edward Snowden. If he didn’t have his revelation, this program would still be secret. And it would be embarrassing, in my judgement, for the Department to actually be forced to tell a jury, “You’re looking at a defendant who’s protecting your privacy more than we were.”
I’ll note that Fein now speaks of waterboarding as criminal, a violation of the Geneva Convention, when in 2004 he had given full throated support to the idea of going to the dark side. This is Fein in 2004, the opening paragraph of “Terrorism’s murky origins”:
At present, little is known of the circumstances which give birth to terrorists. The periodic reports issued by the National Commission on Terrorist Attacks Upon the United States (National Commission), for instance, are bereft of clues for diminishing terrorist recruits. Until this dearth of knowledge is overcome, the best way to handcuff terrorism is by killing, capturing and punishing terrorists period, with no commas, semicolons or question marks.
This might be contrasted with Fein’s statements on a radio show hosted by Rand Paul’s former aide, Jack Hunter, a man also known as the “Southern Avenger”8:
Let’s recount what happened in a New York courtroom, just about a week ago, this was Faisal Shahzad, he was a so-called New York Times Square auto bomber, who plants a bomb there and explodes, and he was saying “We’re at war. That’s why I’m entitled to do that. The United States is fighting in Iraq, and fighting in Afghanistan,” and the judge said, “What about the women and children?”, and he retorted, “Well, your drones don’t stop at our women and children, they kill them anyway, so why should we be playing by Queensberry rules when you are indiscriminate in killing us?” And he was not someone who got up and said, “I hate freedom!”- He was actually a U.S. citizen. It’s not the freedom in the United States, the fact that our women aren’t wearing burqas that caused them to undertake this act. It’s the same way we responded to the predations and some of the atrocities the British inflicted upon us, prior to the revolutionary war and during the war. We didn’t take that stand falling down and through sit-ins. We fought back with muskets. And we can’t expect just because they’re asian and have a different religion, they’re less human beings and going to feel that way.
It seems Bruce Fein had finally discovered the root causes of terrorism.
However, the most important point in Masters’ introduction is when he cites Fein’s credential as “research director for the Joint Congressional Committee on Covert Arms Sales to Iran”. This committee was tasked with investigating a major scandal of the Reagan administration, Iran-contra, one which may well have lead to impeachment. The administration had sold weapons to Iran, a country the president had referred to as “Murder Incorporated”, and used those funds to buy weapons for an anti-communist rebel group in Nicaragua, which congress had barred from further funding. One might assume, given the various portrayals of Fein as a passionate adherent to the constitution that he worked here against Reagan in his work on Iran-contra, where the constitution was arguably violated by keeping two arms deals secret and without approval from congress, a sale of weapons to the contras and a sale of weapons to Iran, then considered by many America’s secondmost enemy after the Soviet Union.
This would be a very serious misunderstanding. Fein worked as research director for the minority report, not the majority report. It was the latter, authored by the Democrats, which found the conduct of the Reagan behavior illegal and unconstitutional. It was the minority report which countenanced these actions – found it justified, legal, and constitutional. The minority report argued that this kind of outsize executive power was part of a tradition which began with Washington, where the executive’s foreign policy was to be given free rein from the encumbering and meddlesome legislative, and featured multiple historical precedents that are no doubt there as a result of the hard work of research consultant Bruce Fein.
I give noteworthy excerpts from the publicly available Iran Contra report, the Report of the Congressional Committees Investigating the Iran-Contra Affair, with links to the exact pages from which the excerpts are taken. These should help give a sense of the intellectual approach of the minority view.
The Constitution created the Presidency to be a separate branch of government whose occupant would have substantial discretionary power to act. He was not given the power of an 18th century monarch, but neither was he meant to be a creature of Congress. The country needs a President who can exercise the powers the Framers intended. As long as any President has those powers, there will be mistakes. It would be disastrous to respond to the possibility of error by further restraining and limiting the powers of the office. Then, instead of seeing occasional actions turn out to be wrong, we would be increasing the probability that future Presidents would be unable to act decisively, thus guaranteeing ourselves a perpetually paralyzed, reactive, and unclear foreign policy in which mistake by inaction would be the order of the day.
The Constitution protects the power of the President, either acting himself or through agents of his choice, to engage in whatever diplomatic communications with other countries he may wish. It also protects the ability of the President and his agents to persuade U.S. citizens to engage voluntarily in otherwise legal activity to serve what they consider to be the national interest. That includes trying to persuade other countries to contribute their own funds for causes both countries support. To whatever extent the Boland Amendments tried to prohibit such activity, they were clearly unconstitutional.
The President can withhold notice from whatever covert actions he wants, page 452:
Similarly, the President has the constitutional and statutory authority to withhold notifying Congress of covert activities under very rare conditions. President Reagan’s decision to withhold notification was essentially equivalent to President Carter’s decisions in 1979-1980 to withhold notice for between 3 and 6 months in parallel Iran hostage operations. We do not agree with President Reagan’s decision to withhold notification for as long as he did. The decision was legal, however, and we think the Constitution mandates that it should remain so. If a President withholds notification for too long and then cannot adequately justify the decision to Congress, that President can expect to pay a stiff political price, as President Reagan has certainly found out.
Page 457, it is not the president’s actions that were unconstitutional, but those of Congress:
Judgments about the Iran-Contra Affair ultimately must rest upon one’s views about the proper roles of Congress and the President in foreign policy. There were many statements during the public hearings, for example, about the rule of law. But the fundamental law of the land is the Constitution. Unconstitutional statutes violate the rule of law every bit as much as do willful violations of constitutional statutes. It is essential, therefore, to frame any discussion of what happened with a proper analysis of the Constitutional allocation of legislative and executive power in foreign affairs.
One point stands out from the historical record: the Constitution’s Framers expected the President to be much more than a minister or clerk. The President was supposed to execute the laws, but that was only the beginning. He also was given important powers, independent of the legislature’s, and these substantively were focused on foreign policy.
Taken together, the three chapters [of the minority report on the constitutional powers of the president which justify his actions] will show that much of what President Reagan did in his actions toward Nicaragua and Iran were constitutionally protected exercises of inherent Presidential powers. However unwise some of those actions may have been, the rule of law cannot permit Congress to usurp judgments that constitutionally are not its to make. It is true that the Constitution also gives substantial foreign policy powers to Congress, including the power of the purse. But the power of the purse-which forms the core of the majority argument-is not and was never intended to be a license for Congress to usurp Presidential powers and functions.
The boundless view of Congressional power began to take hold in the 1970’s, in the wake of the Vietnam War. The 1972 Senate Foreign Relations Committee’s report recommending the War Powers Act, and the 1974 report of the Select Committee on Intelligence Activities (chaired by Senator Frank Church and known as the Church Committee), both tried to support an all but unlimited Congressional power by invoking the “Necessary and Proper” clause. That clause says Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing [legislative] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The argument of these two prominent committees was that by granting Congress the power to make rules for the other departments, the Constitution meant to enshrine legislative supremacy except for those few activities explicitly reserved for the other branches.
One must ignore 200 years of constitutional history to suggest that Congress has a vast reservoir of implied power whose only limits are the powers explicitlyreserved to the other branches. It seems clear, for example, that Congress could not legislate away the Supreme Court’s power of judicial review, even though judicial review is not mentioned explicitly in Article III. The same applies to the Presidency. The Necessary and Proper clause does not permit Congress to pass a law usurping Presidential power. A law negating Presidential power cannot be treated as if it were “necessary and proper for carrying” Presidential powers “into Execution.” To suggest otherwise would smack of Orwellian Doublespeak.
Justice Louis D. Brandeis, for example, wrote that the “doctrine of separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power.” His statement has been accepted in some Congressional quarters as if it holds the force of conventional wisdom,* but it misses half of the historical truth.
The fallacy of Brandeis’ statement becomes apparent when one considers the defects of the U. S. Government before the Constitution. The Constitutional Convention, among other things, was taking the executive from being under the legislature’s thumb, not the legislature from being under the executive’s. After suffering through the Articles of Confederation (and various state constitutions) that had overcompensated for monarchy, the 1787 delegates wanted to empower a government, not enfeeble it. Brandeis was partly right to point out that the Framers did not want power to be used arbitrarily, and that checks and balances were among the means used to guard against arbitrariness. But the principles underlying separation had to do with increasing the Government’s power as much as with checking it.
The need for an effective foreign policy, it turned out, was one of the main reasons the country needs an “energetic government,” according to Alexander Hamilton in Federalist Nos. 22 and 23. Madison madethe same point in No. 37: “Energy in Government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws, which enter into the very definition of good Government.” The relevance of these observations about the government‘s power is that the Framers saw energy as being primarily an executive branch characteristic.
Energy is the main theme of Federalist No. 70(“energy in the executive is a leading character in the definition of good government.”) It is said to be important primarily when “decision, activity, secrecy, and dispatch” were needed. These features are “essential to the protection of the community against foreign attacks.” “In the conduct of war … the energy of the executive is the bulwark of national security.”
But war was not the only aspect of foreign policy described as being more appropriate for the executive than legislative branch. “The actual conduct of foreign negotiations, . . . the arrangement of the army and navy, the direction of the operations of war; these and other matters of a like nature constitute what seems to be most properly understood by the administration of government.” On negotiations, Hamilton went further to say that the Executive is “the most fitagent” for “foreign negotiations.”
To involve Congress in such decisions would be less democratic, not more so, page 460:
So far, our discussion has concentrated on the first: the need for energy in the Executive. No government, democratic or otherwise, could long survive unless its Executive could respond to the uncertainties of international relations. But energy in the Executive seemed frightening to some people. To them, the Federalists made two responses. The first was that the Executive could not maintain a standing army, equip a navy, or engage in a large-scale use of force, without spending appropriated funds provided and controlled by the Congress.”
The second was that an independent, single Executive-in addition to being more energetic-would also be more responsible politically. It would be much easier to hold one person accountable than a committee. In other words, giving the President some independent, inherent power was not seen as being undemocratic. The President and Congress both were considered to be representatives of the people. The Congress produced a more fitting result when the primary need was to moderate internal factional demands through discussion and deliberation before producing general rules. But foreign policy is dominated by case-by-case decisions, not general rules, and the aim is not to moderate internal pressures through deliberation, but to respond to external ones quickly and decisively. For these kinds of situations, multiple bodies-like Congress-are inherently unable to accept blame or responsibility for mistakes. Thus, despite the majority’s contentions to the contrary, putting such decisions in the hands of the Congress wasconsidered to be less democratic than giving them tothe President, because there would be no way for thepeople to hold any one person accountable for a legislative decision.
The basis for which Congress can be ignored by the Executive in foreign policy matters can be found in the precedent of Jefferson’s purchase of Louisiana, page 465:
One constitutional dispute early in the Jefferson Administration was over the Louisiana Purchase. What would the party whose adherents had insisted on a Senate role in negotiating the Jay Treaty say about the President’s power to negotiate the Purchase? Jefferson’s Secretary of State Albert Gallatin supported the Louisiana Purchase by saying that the purchase eventually would have to be ratified by treaty and that its negotiation therefore belonged to the President under the Constitution. Jefferson did not embrace Gallatin’s constitutional argument. Instead, the President decided to go through with the Purchase, without abandoning his view that the Constitution severely limited the President, by asserting an inherent, extraconstitutional prerogative power for the Executive that was more sweeping than anything Hamilton had ever put forward. Jefferson justified his decision this way:
A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself . . . absurdly sacrificing the end to the means.
One of the remarkable aspects of Jefferson’s assertion is the stark way in which it poses a fundamental constitutional issue. Chief Executives are given the responsibility for acting to respond to crises or emergencies. To the extent that the Constitution and laws are read narrowly, as Jefferson wished, the Chief Executive will on occasion feel duty bound to assert monarchical notions of prerogative that will permit him to exceed the law. Paradoxically, the broader Hamiltonian ideas about executive power-by being more attuned to the realistic dangers of foreign policy-seem more likely to produce an Executive who is able and willing to live within legal boundaries. Thus, the constitutional construction that on the surface looks more dangerous seems on reflection to be safer in the long run.
The conclusion arrived at by the research of Bruce Fein is obvious, and there in the closing of the minority report’s historical overview, page 469:
Presidents asserted their constitutional independence from Congress early. They engaged in secret diplomacy and intelligence activities, and refused to share the results with Congress if they saw fit. They unilaterally established U.S. military and diplomatic policy with respect to foreign belligerent states, in quarrels involving the United States, and in quarrels involving only third parties. They enforced this policy abroad, using force if necessary. They engaged U.S. troops abroad to serve American interests without congressional approval, and in a number of cases apparently against explicit directions from Congress. They also had agents engage in what would commonly be referred to as covert actions, again without Congressional approval. In short, Presidents exercised a broad range of foreign policy powers for which they neither sought nor received Congressional sanction through statute.
This history speaks volumes about the Constitution’s allocation of powers between the branches. It leaves little, if any, doubt that the President was expected to have the primary role of conducting the foreign policy of the United States. Congressional actions to limit the President in this area therefore should be reviewed with a considerable degree of skepticism. If they interfere with core presidential foreign policy functions, they should be struck down. Moreover, the lesson of our constitutional history is that doubtful cases should be decided in favor of the President.
I think it can be confirmed that this report was not some radical, unexpected twisting of Fein’s research because he wrote an editorial at the time of the scandal, “A Tight Plug on Intelligence Leaks”, which very much takes the position of the minority report: the problem is not executive overreach but too many people in Congress having access to information about covert foreign policy, which they then leak to the press. “A joint committee would sharply slash the number of legislators and staff members involved in overseeing intelligence agencies. The reduction would animate each overseer with a larger sense of responsibility and perhaps devotion to the tasks of preventing abuses of power while strengthening America’s intelligence capabilities.”
Having read this, one might look now back at the profile of Fein, “In the Snowden case, Bruce Fein finds the apex of a long Washington legal career”, which describes his approach: “Fein is an originalist, a believer in a well-established though decidedly minority interpretation of American legal thought that essentially says: Let’s keep our eye on the original values and intentions of our founding fathers.” It seems what constitutes the original values and intentions of the founding fathers somehow varies between the Reagan administration and the present time. The executive is now no longer the sole organ of foreign policy, and he does not have the privilege of conducting such policy without congressional approval, as we find in the articles of impeachment quoted in Ben Smith’s “GOP lawyer drafts Obama impeachment”: “Barack Hussein Obama, in 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…has usurped the exclusive power of Congress to initiate war.”
The minority view of the Report of the Congressional Committees Investigating the Iran-Contra Affair is not an unknown, unconnected island, but something that very much has influence on us now. A congressional assistant by the name of David Addington would also work on the report, and Addington would become Dick Cheney’s lieutenant in the White House, where he was heavily involved in what executive actions were legal and why. The attitude expressed in that White House, and in the report, is that the executive has a license to do almost anything without congressional interference. From “Cheney’s Cheney”, an interview with Jane Mayer by Blake Eskin on Addington and Cheney; Mayer’s The Dark Side is the definitive account of the formation of Bush White House policy on torture and detention:
How did David Addington get to know Vice-President Cheney, and how long have they worked together?
They met on Capitol Hill in the mid-eighties, when Cheney was a Republican congressman from Wyoming and Addington was a young staff lawyer working for the House Intelligence and Foreign Affairs committees. So they have worked together for about two decades. Their partnership was cemented when they worked together on the Minority Report on the Iran-Contra affair. Both Addington and Cheney took the idiosyncratic position that it was Congress, not President Reagan, that was in the wrong. This view reflected the opinion, held by both men, that the executive branch should run foreign policy, to a great extent unimpeded by Congress. It’s a recurring theme-pushing the limits of executive power and sidestepping Congress-in their partnership. One example is their position that the President, as Commander-in-Chief in times of war, had the inherent authority to ignore the Foreign Intelligence Surveillance Act, which Congress passed in an effort to make sure that Presidents don’t violate citizens’ right to privacy by spying on them without warrants.
We are given an even more direct sense of the impact from this quote out of “Mr. Cheney’s Minority Report”, an excellent piece connecting the ideas of the minority report with Bush White House policy, by Sean Wilentz:
Asked by a reporter in 2005 to explain his expansive views about presidential power, Mr. Cheney replied, “If you want reference to an obscure text, go look at the minority views that were filed with the Iran-contra committee.”
“Nobody has ever read them,” he said, but they “are very good in laying out a robust view of the president’s prerogatives with respect to the conduct of especially foreign policy and national security matters.”
We have the unusual, and completely unnoted, phenomena of Bruce Fein apparently arguing against not only principles he once agreed with, but ones for which he laid the foundation.
This interruption came in the middle of a conversation between Masters and Fein over Edward Snowden.
So, what’s his fate, then? I know that you were dealing with Wikileaks, right, and-
Well, Julian Assange, and then there was also Anatoly Kucharino, who was Edward’s lawyer appointed by Vladimir Putin. I think Vladimir Putin will decide, unilaterally, what happens to Ed Snowden. The rule of law is a joke in Russia. And, if it’s convenient, internationally, for Mr. Putin to permit past the one year of his asylum, it’ll happen, and if he wants to do a trade, it’ll be a trade. And in that sense, I believe Edward Snowden’s situation there is precarious. I think Vladimir Putin wouldn’t have any reluctance at all, if the United States is willing to do a deal, over Crimea, or Russian influence over eastern Ukraine, he’d swap him in half of a second. There’s no intellectual, philosophical sympathy between Mr. Putin and Mr. Snowden.
So. This is a, I guess, in many ways, on a personal level, it must have been hard for the father then to-
I think it was not just the father, Ian. I think the whole family was undergoing great stress and mortification, and what the United States officials were saying about Mr. Snowden. There was very great difficulty about having any communication whatsoever. I still think that it’s something that needs to sort itself out. Ed Snowden has stated, he would like at some time to return, but I don’t think right now, the conditions would be satisfactory for what he wants to accomplish.
But I’d love to get an interview with him. And it doesn’t seem like anybody who’s ever going to challenge anything will ever get an interview with him. He’s pretty much- you know, they allow softball interviews, but I don’t know if there’s- Has anybody really had any real access to him?
I don’t know, and it probably wouldn’t be publicized anyway, Ian. I think, however, your judgement may be somewhat premature. He’s only thirty years old, time changes a lot of things. Sometimes it doesn’t change things. I wouldn’t rule out interviews in different circumstances, at an appropriate occasion. It may well be Rand Paul is elected president in 2016, there’s a different administration, and the environment changes, the tenor of communications and candor may be different.
So, let’s talk about Rand Paul and- He seems to be- Here he is a junior senator, freshman senator, getting more headlines than Ted Cruz, who’s basically a headline generating machine. So, what’s happening with this guy? You know the father…Rand, I take it, his name comes from Ayn Rand, right?
Your description of Rand Paul probably fits then Senator Barack Obama like a glove, in 2008. First term senator running for president. I think that Rand Paul clearly is someone who is willing to take risks, unlike others, go into environments and audiences that you wouldn’t expect, the NAACP, Berkley California. He doesn’t shy from, I don’t know what they’d call it, confrontation? The need to engage in conversation, and to share ideas. So I think there’s no doubt that he appeals to young audiences and crowds. I was speaking yesterday at USC to the Young Americans for Liberty. There were over one hundred and sixty there.
That’s a libertarian campus group?
That is correct. It’s not just a single campus group, it’s a nation-wide collection of students, probably the fastest growing in all of the United States. An enormous amount of what I would call, kinetic energy. And eagerness to support a candidate that will roll back the surveillance state, the warfare state, that encroaches on our liberty more and more every day.
Since this is where Fein reaches the crescendo in his idealistic call, one might mention here some of Fein’s past clients. Perhaps the only piece to devote extensive space to this is “Defending Dictators, Counseling Killers” by the excellent journalist Ken Silverstein, but it should be sufficient to provide some sense of a cruel and anti-democratic bunch:
After leaving government, Fein linked up with right-wing think tanks such as the Heritage Foundation and the American Enterprise Institute. He also cashed in on his government experience by lobbying for foreign clients. Though Fein was a strong critic of leftist governments, like Nicaragua’s Sandinistas, he had no qualms about taking money from peace-loving nations such as Saudi Arabia and Turkey.
Fein hit the jackpot in 1991 when he signed on to represent Mozambique’s notorious guerrilla army, RENAMO, which was seeking to overthrow its country’s leftist government. When Fein came on board, RENAMO’s reputation has hit bottom. This was just a few years after the State Department had issued a report denouncing the guerrillas for the wholesale slaughter of civilians, using such methods as “shooting executions, knife/axe/bayonet killings, burning alive, beating to death, forced asphyxiation, forced starvation, forced drownings and random shootings.”
Even the Reagan and Bush administrations kept their distance from RENAMO, despite their anti-Communist rhetoric. So reviled was the group and its president, Afonso Dhlakama, that Reagan held several face-to-face meetings with Mozambiques’s president to demonstrate his support for his Marxist government!
Fein, however, eagerly signed up to flack for Dhlakama’s terror army. Like most foreign lobbyists, he bilked his client for huge sums of money while performing virtually no work. Fein’s chief endeavor was writing The Dhlakama Papers, a collection of the wise leader’s theoretical musings, and RENAMO’s constitution. The latter document is a loose plagiarism of the U.S. constitution with a few pet projects of Fein’s — the death penalty and privatization — thrown in for good measure.
This article, if anything, understates RENAMO’s malevolence. It began as the creation of the white regime of Rhodesia (now Zimbabwe), for the sole purpose of destabilizing the government of Mozambique, then went on to receive the support of another white apartheid regime, that of South Africa. RENAMO used several methods in their war: forced famines, mutilation, and recruitment of child soldiers. One of the best overviews of the civil war in Mozambique between RENAMO, the rebels, and FRELIMO, the ruling party, is Conspicuous Destruction: War, Famine and the Reform Process in Mozambique by Africa Watch (bulk of the research and writing by Karl Maier). What follows are excerpts on the use of mutilation by RENAMO to intimidate the population:
Reports of mutilations of civilians by RENAMO have been routine since the rebels began operating in Mozambique in the mid-1970s. Cases of guerrillas hacking off ears, noses, lips, and sexual organs have been common in the central and southern provinces. Evidence gathered by Africa Watch suggests that RENAMO was guilty of the majority of such mutilations, but that government forces too have been guilty of the practice.
Ken Flower, who as Director of the Rhodesian CIO played an important role in setting up the movement, said in an April 1987 interview that RENAMO fighters had used such tactics in an effort to intimidate the civilian population. “There were reports of atrocities, the intimidatory processes, especially the cutting off of ears and noses, and this did happen in the fairly early days. But I am referring here to 1975.”
However, mutilations of the dead and living have continued to occur at regular intervals up until the present.
In a 1987 interview, Fambinsani Chenje, then fifty-nine, told of attacks in 1986 by rebel gunmen on his village of Mushenge in southern Tete province.
The first time they came was in 1986. They were looking for food. It was a small group of about fifteen men. They took cattle, chickens and goats. A lot of villagers started fleeing to Tete [town] then because the war had come to Mushenge. But most of us stayed in the village. It was our home. Then, in June 1986, the Matsanga [RENAMO] came again in the early morning hours. It was still dark. This time they came right into the village. They called for everyone to come out of their houses. Then they killed ten people and mutilated ten others, including myself. Two soldiers cut off my ears with knives. They said we were working for FRELIMO. After they did that they left, without saying anything more. The next day, most of the villagers packed their things and walked to Tete [town].
RENAMO of Mozambique was one client of Bruce Fein’s, the state of Sudan was another.
Now, Fein has returned to lobbying and is working for a client that has the dubious distinction of making RENAMO look good: The Sudan. That country’s government is barred from receiving U.S. foreign aid because of its support for terrorism and because of its revolting human rights record. Amnesty International reports that the Sudanese government not only assassinates and tortures its “enemies,” but that paramilitary forces have kidnapped scores of children, who are believed to be held in domestic slavery by their abductors or taken to camps in remote rural areas, where they are trained for military service.
Another common practice of the Sudanese government is to flog “criminals.” According to Amnesty, many of the victims are women convicted of brewing alcohol and convicted by rubber stamp Public Order Courts.
Explaining away a record like that is a delicate task indeed, which is where Fein comes in. Having already billed his client $20,000 for “legal and historical research,” Fein has now begun lobbying — he plans to meet with Congress, the Executive Branch, newspaper editorial boards and think tanks — on the Sudan’s behalf for a monthly fee of $10,000.
Fein’s contract, on file at the Justice Department’s Foreign Agents Registration Unit, says he will offer the Sudan “advisory and advocacy services” with the goal of fostering “warming relations” with the U.S. He’ll also seek to have the country delisted as a supporter of terrorism and urge the U.S. government to lift all sanctions against the Sudan, including prohibitions on military aid.
Some of Fein’s latest work is for the Turkish Coalition of America, where he is a resident scholar, and for whom he writes opinion pieces denying the existence of an Armenian Genocide. These include “Tawdry genocide tale”, “Armenian crime amnesia?”, and “Lies, Damn Lies, and Armenian Deaths”. Some excerpts from this last one should provide a sense of the direction of his arguments:
When their quest for statehood shipwrecked on the Treaty of Lausanne and annexation by the Soviet Union in 1921, Armenians revised their soundtrack to endorse a contrived genocide thesis. It seeks a “pound of flesh” from the Republic of Turkey in the form of recognition, reparations, and boundary changes. To make their case more convincing, Armenians hiked the number of deaths. They also altered their story line from having died as belligerents against the Turks to having perished like unarmed helpless lambs.
Vahan Vardapet, an Armenian cleric, estimated a prewar Ottoman Armenian population of 1.26 million. At the Peace Conference, Armenian leader Nubar stated that 280,000 remained in the Empire and 700,000 had emigrated elsewhere. Accepting those Armenian figures, the number of dead would be 280,000. George Montgomery of the Armenia-American Society estimated a prewar Armenian population of 1.4-1.6 million, and a casualty figure of 500,000 or less. Armenian Van Cardashian, in testimony before the Senate Foreign Relations Committee in 1919, placed the number of Armenian dead at 750,000, i.e., a prewar population of 1.5 million and a post-war figure of 750,000.
From 280,000-750,000, Armenians initially raised their death count to 800,000 to test the credibility waters. It passed muster with uninformed politicians easily influenced by campaign contributions and voting clout. Armenians then jumped the number to 1.5 million, and then 1.8 million by Armenian historian Kevork Aslan. For the last decades, an Armenian majority seems to have settled on the 1.5 million death plateau–which still exceeds their contemporary estimates by 200 to 500 percent. They are now testing the waters at 2.5-3 million killed as their chances for a congressional genocide resolution recede. It speaks volumes that champions of the inflated death figures have no explanation for why Armenians on the scene would have erred. Think of the absurdity of discarding the current death count of Afghan civilians in the United States-Afghan war in favor of a number deduced in the year 2109!
Fein would not confine his denials to editorial pages, but would make the same claim in courtrooms whenever the issue came up, allegedly on the dime of the Turkish government. In Mistrial: An Inside Look at How the Criminal Justice System Works…And Sometimes Doesn’t, a memoir of courtroom life by two attorneys, Mark Geragos and Pat Harris, Geragos cites Fein’s appearance in a courtroom as one of those moments where he nearly lost faith in the justice system. He also refers to Fein as “one of the most repulsive human beings I have ever had the mispleasure of meeting.” That I think the defendant, Mourad Topalian, may well have been guilty of the crimes for which he was convicted, is separate and apart from attempts to deny the Armenian genocide. I give full excerpt to this episode in the book, so there is no sense that I am attempting to distort or slant it in any way:
From the first day a young lawyer enters a courtroom until the day that lawyer’s retirement party is held, the one phrase the lawyer will hear at least one thousand times is “We may not have a perfect system, but it is still the best system in the world.” This concept is so ingrained in American lawyers that it is not even debated. The law is in many ways like a religion to attorneys, and the belief that we have the best system in the world is our chief article of faith. But like ministers who have had a crisis of faith, both of us have had seminal moments in which we have questioned whether our legal system is truly the best or even one of the best in the world.
Mark: I began to have serious doubts about the system on a snowy, wintry day in Cleveland, Ohio in 2001. We were representing a prominent member of the local community at his sentencing hearing in federal court. He had pled guilty to keeping a storage unit that contained decades-old explosives near his suburban home in Cleveland, where he had been vice president of Cuyahoga, Community College. The FBI believed that some of the explosives had been used in an attack by Armenian freedom fighters on the Turkish Mission in New York in the eighties, and that the remaining explosives were being stored for future use. The former college vice president was never implicated in any attacks, but the storage unit had his name on it, and it was asserted by the FBI that he had at least agreed to store th remaining explosives.
My client was a much admired figure in the Armenian community, a charismatic speaker and a forceful lobbyist who had spent time as the head of one of the prominent Armenian activist organizations. For his sentencing hearing, Armenian supporters from all over the country flew in to pack the courtroom, with an overflow group having to wait out in the hall. Virtually every person in that room had either been an eyewitness to the Armenian Genocide or had had a close relative who had perished at the hands of the Turks.
There was a palpable tension hanging in the air because the judge in the case was allowing a representative from the Turkish government to speak during the sentencing hearing, and the government had flown in its top lobbyist and spokesman, Bruce Fein. Fein is one of the most repulsive human beings I have ever had the mispleasure of meeting. Whenever the Turkish government wants to deny the Genocide, it sticks Fein out in front and lets him spew a bunch of denialist trash about how the Genocide was nothing more than a civil war provoked by the Armenians. I knew what was about to happen and pleaded with the judge to not let him speak. I tried to explain that this would be no different from having a Jewish person being sentenced and letting some nut job get up and deny the Holocaust ever happened. There is no way that would ever occur in today’s society. But therein lies the problem for Armenians – the Armenian Genocide has been largely ignored in this country because Turkey is supposedly an important ally. In recent years, even though forty-three states have recognized the Genocide and Congress twice passed an Armenian Genocide Resolution decades ago, the last several administrations have become tongue-tied every time the resolution is brought up. Despite almost every presidential candidate since Reagan saying he or she will recognize the Genocide, nothing happens once the president takes office.
Sure enough, Fein got up, and in front of a courtroom that included several Genocide survivors, he denied its existence. It was a hateful and mean-spirited speech, made even worse by the fact that the audience was filled with people who had never met their grandparents or aunts and uncles because of the Genocide Fein was now denying. There have been few instances in which I have been filled with such rage, and I came very close that day to doing something that would have lost me my bar card forever. I looked over at Pat [Pat Harris, Geragos’ fellow attorney and co-writer of Mistrial], who hadn’t even met an Armenian until he was in his thirties, and he was shaking with anger. You could hear sobbing from all across the room, but in a testament to the dignity of the Armenian people, Fein was allowed to spread this trash without interruption.
When it was over, I gathered with the Genocide survivors at the back of the courtroom and swore to them that I would do everything I could as a lawyer to make sure they were not forgotten. But as I walked out of that courthouse, I felt unsure that I even wanted to participate in a system that would allow something like this to happen. On this trip back to Los Angeles I seriously thought about whether I wanted to continue as a lawyer.
Fein’s denial of the Armenian genocide intersects with another plot that will be dealt with later on.
That Fein was an ardent supporter of Rand Paul is obvious. We see here an aura of xenophobia that seems drawn to this senator like a magnet. There is Fein denying the Armenian genocide. There is the senator’s father who once published a newsletter that explained how to kill black men and get away with it9. After Rand Paul’s first plagiarism scandal, where he appeared to lifted material multiple times and put it down under his own name, he was dropped from the Washington Times as a columnist, and brought into the fold of the Breitbart news site. This news site’s namesake appears to have lifted material about a Jewish cabal running America from an old Lyndon Larouche publication and placed it into his own book10. One of Rand Paul’s longtime staffers was Jack Hunter, who also worked as a radio host under the nom de guerre, “Southern Avenger”, who annually toasted the birthday of Lincoln’s assassin, John Wilkes Booth, and once declared that “a non-white majority America would simply cease to be America.”11 As noted, Fein would appear on Hunter’s radio show on July 10, 2010. This kind of inevitable nexus would be mocked by Jonathan Chait in “Libertarian Hero Cliven Bundy Shockingly Turns Out to Be Gigantic Racist”: “Why do all these people with strong antipathy toward the federal government turn out to be racists? Why do all these homosexuals keep sucking my cock?”
So…what’s happening now on campuses? In the sixties and seventies, the activism was on the political left. How much do you detect? You were speaking at UCLA, USC, Yale-
Yale, Harvard, Charlottesville. There’s no doubt there’s a huge intensity, that I don’t see on the left, if you will, people coming out and supporting Barack Obama. I think in part it’s because the young people are able to see the encroachments given the electronic exposure they already provide every day. The encroachments on their lives, and their personal privacy. They do, clearly, recognize, that they’re living in a post-Orwellian phase of the United States of America. And youth does have that kinetic energy, it reminds me of some words by William Wordworth about the American and French revolution: “Blissed was, to be alive at that dawn / And to be young, very heaven”. And these youth need sortof guidance, they don’t know exactly how the political process works, but they certainly have the energy and the instinct that are sympathetic to Rand Paul’s objectives.
Well, there’s obviously some confluence between libertarian philosophy and the left, although the democratic party is pretty centrist. There really isn’t a left-wing party, perhaps peace and freedom, the greens, but they are barely one or two percent of the electorate. The confluence, of course, is there’s an agreement to smoke marijuana, there’s agreement over objection to foreign wars, there’s agreement over the surveillance state. But there is also a divergence, is there not.
I think there clearly is a divergence. If you want to talk about the government dependency, or the welfare dependency state, if you will, Obamacare, and government programs that seek to develop industrial policies, and put money into what many would believe be subsidizing endeavours people take with their own skill, foresight, and industry. There’s divergence on the debt, the size of the federal government, the size of the federal regulatory state. But I think those are less important, if you will, Ian, than the fundamental issues of liberty and the rule of law that are at stake with regard to the surveillance state, the warfare state. Most people don’t recognize and would be horrified if they reflected every day that at present, as we speak, the president of the United States claims authority to kill any American citizen, on his say-so alone, if he decrees they’re an imminent danger to the United States. It’s been done on four occasions, there may be a fifth in the cross-hairs. Just think about that. That’s vastly more power than was ever considered by King George the Third. His just general writs of assistance provoked the American Revolution, believing he could search our homes and businesses, without probable cause. Now, we have a president who basically claims and exercises the most awesome power in the history of mankind? The American people and Congress are rather complacent with that. And that oughta spur people to political action to try and re-gain the rule of law, and our protections under the Constitution, that basically have been eroded over the last many years, under Democrats and Republicans.
Right, you know, but you have some very powerful libertarians, I think the Koch brothers are fairly libertarian.
Yes they are.
Fein speaks here of a president who has suddenly appeared, who “claims and exercises the most awesome power in the history of mankind”, the ability to sign an order and kill at a distance, as if this is a surprising or new development. That American citizens have been assassinated before Al-Awlaki is a point often forgotten, but Ames forces us to remember it: “The first American-born citizen assassinated by a targeted drone attack was Kemal Derwish, blown up by a Predator in Yemen in 2002.”12 And: “The second American targeted for assassination that we know of was Ruben Shumpert of Seattle, killed by a US missile strike in Somalia in 2008.” Note that Kemal Derwish was killed in 2002; Fein’s editorial, “Terrorism’s murky origins” where he wrote “the best way to handcuff terrorism is by killing, capturing and punishing terrorists period, with no commas, semicolons or question marks”, came out in 2004.
Fein worked in the justice department of a president whose over-reaching executive power unhindered by congress he justified in his research for the Iran-contra report, a president who also issued an executive order allowing assassinations. Both “American Assassination History for Dummies” by Mark Ames and “Holder Dances the Assassination Tango” by Scott Horton, make this point explicit. Executive Order 13222, signed off by Reagan, which supposedly banned assassinations, actually did something entirely different:
[Attorney General Eric] Holder was referring specifically to Executive Order 13222, issued by President Ronald Reagan in 1981, which says, “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” But as with so much U.S. national-security legislation, this order turns out to be far less than meets the eye. Simplified, the present law of EO 13222 could be summarized this way: “No one shall be assassinated-unless the president authorizes it, in which case we will refrain from calling it an assassination.”
That assassination was part of Reagan era foreign policy, though it could not be referred to by name, is there in George Crile’s Charlie Wilson’s War:
Later, when Avrakotos [Gus Avrakotos, then acting chief of the South Asia Operations Group] took over the Afghan program, he dealt with this problem by introducing an Orwellian change in the language he directed his staff to adopt whenever describing weapons or operations in the Afghan program. “These aren’t terrorist devices or assassination techniques,” he would inform his staff. “Henceforth these are individual defensive devices.” Sniper rifles were finally shipped out to the mujahideen , but only after Gust renamed them: “long-range, night-vision devices with scopes.” Once, when the Islamabad station sent a cable describing a lethal tactic being introduced, Avrakotos shot back a return communiqué saying that the cable had been garbled and adding, “Please do not send anything more on this subject ever again.”
Another passage from Wilson’s War, on the training of the mujahideen in Pakistan:
Given what was already being done, it was a perverse twisting of reality. That fall, the mujahideen in the Pakistani training camps were not only receiving a flood of lethal weapons, they were also being trained to wage a war of urban terror, with instruction in car bombings, bicycle bombings, camel bombings, and assassination.
Just how vicious a campaign the CIA was sponsoring is suggested by the Pakistan brigadier Mohammed Yousaf, who directed the training with and distribution of CIA weapons at that time. In a matter-of-fact passage in his memoirs, he describes the range of assassination tactics and targets he was preparing the mujahideen to take on in Kabul. They ranged from your everyday “knife between the shoulder blades of a Soviet soldier shopping in the bazaar” to “the placing of a briefcase bomb in a senior official’s office.” Educational institutions were considered fair game, he explains, since they were staffed by “Communists indoctrinating their students with Marxist dogma.”
This executive order would itself be re-interpreted during the subsequent Bush administration, as reported at the time in a piece quoted in the invaluable “Dummies”. From “Administration Redefines Ban on Foreign Assassinations”:
LOS ANGELES (AP) The Bush administration, without changing an executive order banning assassinations of foreign leaders, has chosen to legally interpret ”assassination” as referring only to premeditated political murder, according to a published report.
A new legal ruling, drafted by the Office of the Army Judge Advocate General, would permit clandestine operations even if they threaten the lives of foreign figures, The Los Angeles Times reported in its Saturday editions.
Unidentified administration officials quoted by the Times said the ruling would significantly expand the scope of military operations the United States could legally launch against terrorists, drug lords or fugitives abroad, the newspaper reported.
The ruling means, for example, that the accidental death of Panamanian strongman Gen. Manuel Noriega during an extradition or future coup attempt in which U.S. forces played a direct role would not constitute assassination, the Times reported.
Noriega, who is under federal indictment in the United States on drug trafficking charges, quashed a coup attempt last week.
In 2001, “Dummies” tells us that House Bill “H.R.19 — Terrorist Elimination Act of 2001” was introduced. The purpose of this bill was to “nullify the effect of certain provisions of various Executive orders.” Which provisions? Well, among them, “Section 2.11 of Executive Order 12333.” What is this section 2.11 of Executive Order 12333? It’s right there in the text of the bill (national archives link): “2.11 Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” Who introduced this bill? Bob Barr. And who is Bob Barr? Well, he was the subject of Spy magazine’s “D.C. Eunuchs: America’s Least Influential Politician?”, which listed a career of pandering, inconsequential, symbolic legislation. An endorsement of Siskel & Ebert’s positive review of WACO: The Rules of Engagement. A hard stand against air quality standards. May 1, 1997: “Mr. Speaker,” announced Barr, “I would like to have the following poem inserted into the Congressional Record…’What My Flag Means to Me’ was written by William Watkins, a fifth grader at Alto Park Elementary School in Rome, GA.” And not entirely inconsequential: Barr wrote and sponsored the Defense of Marriage Act, he was a firebrand who beat down cancer victims who sued tobacco companies, and he fought hard against any attempts to legalize marijuana or even research its medical benefits13.
After losing his congressional seat, he perhaps achieved his highest profile by running for president in 2008 on the libertarian party ticket; this episode is described in two very good pieces, “Freedom Freaks” by Michael Idov and “The Third Man” by Raffi Khatchadourian. Barr would then leave the Libertarian party – but not before stiffing James Bovard, his presidential ghostwriter, out of a $47,000 fee14 – and turn back to the Republican party fold. The party was now closer to where he was, ideologically. “The party has moved, though I don’t take credit for it,” he says in David Weigel’s “The Third Coming of Bob Barr”. “It has to do to some extent with Ron Paul’s runs for the presidency, with Ted Cruz raising these issues. All of these things combined have brought the Republican Party back to its Reagan roots.” The Reagan roots, as we have seen, are those of near unrestricted executive power in foreign policy and support for assassinations. Who was endorsing Bob Barr in his congressional run? A certain lawyer who denied the Armenian genocide, who had Sudan as a client, who researched how Washington and Jefferson laid the basis for said unrestricted executive power. “If you are a conservative who supports limited government and the Constitution, then join me in supporting Bob Barr for Congress,” says Fein on Barr’s campaign website, “Constitutional Leader Bruce Fein Endorses Bob Barr for Congress”. “I welcome the endorsement of my good friend, Bruce Fein, a constitutional scholar with whom I have been proud to work with for many years,” says Barr in thanks15.
This is the messy background of assassination policy, one which those supposedly against the war power state, such as Barr and Fein, have happily endorsed. Fein is more intertwined with the program than he might wish to admit, and he is more intertwined with the Koch Brothers than comes through in this interview.
Fein would focus several of his Washington Times editorials against the possibility of a Hawaiian native identity, something like that of the various indian nations of the United States: “A race-based drift?”, “New racism in new bottles”, “Race separation ratified”, “Resurgent racism”. Though Fein is often presented as an enlightened, dispassionate scholar, we see an old, primal ugliness in the opening of “Race based drift”: “The nation’s mindless celebration of multiculturalism and denigration of the American creed has reached a new plateau of destructiveness.” The pros and cons of Doe v. Kamehameha and bill S.344, the subjects of these editorials, I am unfamiliar with and will not debate here. What I found fascinating was Fein’s interest in this seemingly esoteric issue, an interest that perhaps can be explained by a detail in the credit for “New racism in new bottles” (none of the other editorials feature it): “Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein and Associates and the Lichfield Group and a consultant to the Grassroot Institute of Hawaii.” Fein would also write a legal analysis condemning the Alaska bill, S.344, which would be entered into the record by John Kyl (“Against Race-Based Government in Hawaii — (Senate – June 14, 2005)”, “Against Race-Based Government in Hawaii, Part II — (Senate – June 15, 2005)”, “Against Race-Based Government in Hawaii, Part III — (Senate – June 16, 2005)”), and that too would carry the imprimatur of the Grassroot Institute of Hawaii – Grassroot singular, there is no s.
The Grassroot Institute of Hawaii would be an entity name unknown to many; it was a think tank that was part of something called the State Policy Network (SPN), there on their website, in the directory list of SPN members 16, and again, the SPN was an entity mostly unknown to the general public. It was all easily explained in Exposed: The State Policy Network by the Center for Media and Democracy, all this information reached by the invaluable SourceWatch, and their entries on the “State Policy Network” and the “Grassroot Institute of Hawaii”. The SPN received millions from corporate donors, including corporations such as Microsoft, Comcast, Time Warner, as well as Joseph Coors, and yes, the Koch brothers17. This money was then funneled into various state based think tanks, like the Grassroot Institute of Hawaii, which crafted position papers and attempted to affect legislation in ways favorable to its corporate donors – fighting against a minimum wage, ending collective bargaining, a “fair” tax system which always involves lower corporate taxes. One cannot help but think that Fein’s passion on this particular issue is motivated entirely by the interests of the SPN. For instance, in his editorial “A race based drift?”, he argues against “a race-based government for Native Hawaiians unconstrained by the restrictions of the U.S. Constitution” and that passage of the bill “would mark the beginning of the end of the United States, akin to the sack of Rome by Alaric the Great in 410 A.D.” Whether the bill warrants such a hysterical reaction, I offer no judgement, but I think we might contrast it with his attitude towards indian nations who are sovereign and apart from federal regulations on their banking. In “The Last Enclaves of Banking Freedom”, such sovereignty is praised and very much a good thing:
The sole enclaves of banking choice are Native American tribes endowed with sovereign powers pursuant to treaties or otherwise. They offer sovereign lending to the spiraling number of the unbanked or under-banked who have been priced out of services offered by traditional lenders because of heavy-handed and costly Obama regulation.
Like mercy, sovereign lending is twice-blessed. Borrowers’ needs for immediate funds are satisfied. And jobs and wealth are created for Native American tribes. Sovereign lending has the potential to create thousands of jobs, and generate millions in revenue annually for economically challenged Native Americans.
This was not a one-time caprice. The man who warned that Hawaiian sovereignty would mean the end of the United States, went back several times to the mat to preserve Indian sovereignty, exclusively from commerce regulation, in the HuffPo editorials, “Regulatory Impartiality for Native American Tribal Lenders” and “Misconceived New York Attack on Tribal Sovereignty”.
This piece began with the possibility that Fein was something mysterious, a double agent infiltrating the community of whistleblowers and dissidents, when he actually seems to be something much simpler: an opportunist. After 2004, The state war machine gravy train looks like it’s starting to run to ground. “Nobody has ever read them,” Dick Cheney said of the volumes that make up the Iran-contra minority report, but they “are very good in laying out a robust view of the president’s prerogatives with respect to the conduct of especially foreign policy and national security matters.” At some point after 2004, the man who gave the historical foundation for that view of the president’s prerogatives instead started writing stuff like “Impeach Cheney” for Slate. Stuff like “Shaky Steps” for the Washington Times: “President George W. Bush’s sophomoric plan for Iraqi democracy and freedom announced last Monday discredits his ability to lead the nation.” Was this abrupt one hundred and eighty degree shift ever mentioned or explained in his writings? Of course not. Why should genius have to answer to mortals like we.
The man who took on clients that starved and mutilated their opponents now chastises the Obama administration for its brutality. The man who thinks Hawaiian sovereignty will be the end of the Republic praises the virtues of the sovereignty of indian tribes. The man who provided the historical research for a report backing near independence for executive foreign policy from congressional oversight now seeks to impeach a president for the same practice. The man who bemoans the possibility of an american president ordering assassinations, heartily endorses a candidate who put forward a bill making such killings legal. And he is able to take such multiple and contradictory positions without repercussion or question for the simple reason that the D.C. press is as blind and self-impressed as a masturbating mole rat.
The conversation continues on the subject of the Koch brothers.
And they give a lot of money. And my sense is, that you’re attributing enormous amount of powers to the president, and to this imperial presidency, and this surveillance state, et cetera. All of which I think is true, but on the other side of the coin, in many ways it feels that the president is powerless. That Wall Street is more powerful than Washington, and that one of these great promises, of course, was net neutrality, and that is about to go out the window, because of the power of Comcast, and Time Warner, and these powerful lobbyists that are getting their way. So, I don’t think this country…it seems like the industrialists have as much, if not more power than the president.
Well, I think that’s an overstatement. The greatest power you have is to extinguish somebody else’s life…and choose between predator drones and moneyed interests, the predator drones will prevail. But I wanna make a larger observation: these interests prevail simply because there’s lack of courage, it exists not because the president doesn’t have the power, he clearly does have the power, the authority of the government to prevent the murders is there. The authority of the government to impose net neutrality, if you will, is there. It’s simply that president Obama, like most of the Republicans, have been bought off and compromised by the moneyed interests. You can go back to Sam Adams, which really expressed the heart and soul of the United States, and he was preaching similar if you will to those who wanted money and trade privileges with Britain more than independence. And he said, “If ye love wealth more than liberty, the tranquility of servitude more than the animating contest of freedom, go home from us in peace, and may posterity forget that ye were ever out countrymen. And so I don’t believe it means there’s less actual authority in the office of the White House or in Congress. It’s simply that they’ve lost the moral and philosophical spirit to stand up and say, “No, we are not a country that bows to mammon. We believe in liberty and, no, you’re not going to get what you’re clamouring for. We want openness and fairness in competition, and you’re not going to manipulate the organs of government to enrich yourself.”
Fein here pins down the federal government as the chief cause of inequality, one that moves into supposedly free markets and plays favorites, thus entrenching our privileged hierarchy. This is the approach taken by all libertarians when dealing with the issue of pervasive inequality. After the publication of “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens” which gave a basis in data for the obvious fact that legislation favored by oligarchs has a possibility of passage that laws favored by a majority of citizens in a lower economic caste never have, Tim Worstall’s solution in “New shocking research proves that rich people control American politics” was to argue for less government for the wealthy to manipulate. This was the same answer offered by fellows libertarian James Poulos in reaction to Thomas Piketty’s Capital in the Twenty-First Century, “Today’s Wonky Elite Is in Love With the Wrong French Intellectual”: “Since the power of the fleeting aristocracy of wealth depends on the much greater and more durable power of the state, the key to weakening the influence of the super-rich is not by handing the government their money but by…sharply limiting the scope of centralized government.” This received a reprimand from the book’s translator, Arthur Goldhammer, “Poulos Gets Piketty—and Tocqueville—Wrong”, that was striking in its dismissal of the Poulos’s lack of knowledge and intellectual discipline: “His column is such a mishmash of assertion and non-sequitur that it’s hard to fasten on an argument.”
So, Fein’s approach in his answer is not unique or notable given his political company. What is surprising, given Fein’s history, is this phrase about why this economic inequality has come about: “It’s simply that president Obama, like most of the Republicans, have been bought off and compromised by the moneyed interests.” This really does stand out in my mind because of a letter I came across, again thanks to Ames’ “Libertarian Bum Fights”, where Fein discusses strategy for dealing with S.1883: Tobacco Product Education and Health Protection Act of 1990. Oh, yes: in addition to Sudan and RENAMO, Bruce Fein worked for the tobacco companies. S.1883 would have researched the addictiveness of tobacco products, enforced the restriction on sales to minors, and forced companies to disclose health risks of tobacco products to consumers. In this letter, Fein writes about marshalling opposition to the bill, and attempts to deflect this legislation by having a bone thrown to two private companies, Turner Cable Network and Whittle Communications, which would get health warnings paid for by Philip Morris on their in-school educational broadcasts.
The cast of charactes in this letter: Cary Sherman is a lawyer with Arnold & Porter, longtime counsel for Philip Morris. The PM is the Philip Morris company. Thurmond is Strom Thurmond, the late and unlamented Senator from South Carolina. Hatch is Orrin Hatch, the Senator still serving from Utah. Kennedy is the late Edward Kennedy, sponsor of the bill. The letter can be found at the Legacy Tobacco Documents, “Re: S.1988” – the title is obviously wrong, and most likely the result of a scanning error, as the letter is entirely devoted to S.1883; it is transcribed here, with accompanying screenshots of the original letter should this database be lost:
To: Cary Sherman
From: Bruce Fein
Re: S. 1883
Last Tuesday, I met with Senator Thurmond’s legislative captain for S. 1883, Craig Metz. I communicated some major flaws PM perceived in the bill, with the Kennedy substitute amendment: convert government suasion of broadcasters and programmers to portray smoking as unflattering and ugsome; unequal free speech over the airwaves by forbidding promotion of smoking while subsidizing its denunciation; the specious effort to advertise the bill as a states’ rights measure when it denies states power to regulate the authority over advertising of its municipalities; the illegitimate purpose of balkanizing the advertising of cigarettes to squelch commercial speech in a national market; the unfair authorization of states to saddle tobacco producers with potential billions in tort liability for inadequate health warnings despite scrupulous compliance with warnings that Congress has found adequate; the anti-blue collar overtones of the bill because the royalty of Senator Kennedy’s ilk who engage in saturnalia on Cape Cod partake of other pleasure to gratify their sensual desires; and, the dangerous precedent S. 1883 would set for government gambits on other products that may be insalubrious like pork, sugar, or hot dogs.
Metz received all the arguments openly, but was guarded as to how Thurmond might vote. He stated the Senator desired a low profile, and, at present, was uncommitted. I deduced that Thurmond may be willing to trade his vote on S. 1883 for a Kennedy vote on a bill he champions. Tobacco farmers, however, are a significant electoral constituency in South Carolina. How Thurmond’s support for alcohol warning labels may affect his posture on S. 1883 is uncertain.
(Bob Cable sat in the meeting with Metz).
I met alone last Thursday with George Lewis, Senator Hatch’s chrieftan [sic] for S. 1883. Bob Cable was occupied on other matters.
I reiterated PM’s concerns regarding S. 1883 that I had previously elaborated to Craig Metz.
Lewis seemed more openly receptive to the arguments than Metz, and scornful of the bill. He stated that a consensus in the Labor and Human Resources Committee agreed S. 1883 needed major revamping, and that the Kennedy substitute was seriously flawed. He seemed to think only the proposals for enhanced anti-smoking campaigns directed at youth enjoyed widespread committee support. He further opined – and on this count he echoed Metz – that S. 1883 would never reach a floor vote this session because of the crowded Senate calendar. Lewis did not display enthusiasm for Hatch playing a so-called “broker” role to crown S. 1883 with at least incomplete success.
It seems to me that one option that PM might explore to demonstrate its strong devotion to shielding minors from smoking is participation in the Whittle Communications and Turner Cable Network public school daily news briefs (8-10 minutes) that now penetrate up to 8,000 school districts. Whittle and Turner deliver their programming by satellite to TVRO dishes on school sites. PM might consider sponsoring health warnings at some point in the news briefs as a public service announcement.
We return to the conversation, still on the subject of inequality.
But surely Bruce Fein, you detect, it’s in the political zeitgeist now, the issues of inequality are growing, growing inequality of wealth, it’s going to be clearly a campaign issue, the number one best seller if Thomas Piketty’s new book, I think it’s Capital in the 21st Century, that is about how the rich are getting richer, and the middle class is floundering, and the poorer are getting poorer. I just interviewed a scholar at Princeton the other day who’s done a study that indicates…he doesn’t use the word oligarchy, but the word oligarchy is out there, and that is what seems to me to be the big question. And our politics at the moment is the extent, have we become an oligarchy, or are we still a democracy? That seems to be the main question. One of the things that he discovered in his research, which was pretty thorough, going on several decades, is that the powerful special interests in this country…if they want a policy, they have a 50-50 chance of getting it enacted. The middle class have very little influence, and the poor have no influence ever at politics. But the wealthy elite, they do not refer to them in this study as oligarchs, but I think he calls them the wealthy elite…they have a 50-50 chance of getting their policies through, and conversely, if they don’t want something to happen, it’s only got an eighteen percent chance of succeeding. So, in effect, the wealthy have veto power over our government. That is a portrait of current issues. So, which is the more important, economic fairness, or-
Well, economic fairness, I think, won’t matter if we don’t have any liberty anymore. We can have bread and circuses, and be a little complacent, but we would destroy ourselves as a free people. Cicero described freedom as participation in power, and that’s what we’ve lost. All the power that is serious, has migrated to the executive, which frequently bows, if you will, to moneyed interests, but not exclusively. It doesn’t do that. But in my judgement, if we’re looking at two concerns: one, the manipulation of government to enrich the rich. As opposed to the use of government to run an empire, where it crushes liberty and freedom. And we have surveillance everywhere, and no due process, and we kill people, even our own citizens, based on the president’s say-so alone. We will crumble as an empire, and then all the economic issues will be out of the equation, because there’ll be no country to defend. And that, in my judgement, is where we will be in thirty years. We’ve got an eighteen trillion dollar debt that’s just not sustainable. And continuing to project ourselves everywhere under the sun, now we’re going to war with Japan over five uninhabited islands in the East China Sea, with China, I mean, this is just madness. And now, we go everywhere else in the world, where anybody who says they’re a terrorist, stands up and says they don’t like the United States. Now, I don’t want at all to downplay the issue of inequality, I think that’s exactly what James Madison feared when he said, “We do not want people to profit off speculating off public measures.” And that’s what’s happened here. They’ve manipulated and changed government, from an institution to seek justice, and seek equal opportunity, to one that creates special privileges for the rich to become even richer. The bailout of the banks is a characteristic example of that. And in some sense, it has the earmarks of the eve of the French revolution. Ultimately, there was a storming of the Bastille. But surely, the economic inequality of that time was equally acute.
Well, my sense though, is that one of the reasons why government has these powers is that there’s an enormous amount of alienation in this country, against government. You see people on the right, the militia movements and stuff, they invent all kinds of evils of the government, and they want to arm themselves against this government, there’s a face-off now going on, down in Nevada, over a rancher who, by the way-
But he’s not alienating- he’s pouting- he’s mooching off of government.
He’s a sponge. He wants to graze on government land and not pay for it.
I know, but your candidate, Rand Paul, supported him before-
Well, he renounced him.
-the only worse racist is this Donald Sterling, which is our shame here in Los Angeles. But the point I was wanting to make, Bruce, is that, I sense even more on the left than the right, but on both the far left and the far right, in this country, an enormous alienation, a belief that the government is just a remote, malignant force that they have no control over. That leads to all kinds of weird conspiracy theories about what the government is up to. I don’t see in this country, given that only fifty percent of the people vote, a real sense, that we, the people, own this damn government, and we should make this government work for us, and not work for itself. Where is that spirit going to come from?
No, and that’s what part of the task of leadership is, Ian. And we have, as I say, an acephalous political culture: there is no leadership. But that’s the purpose of being a political leader, to arouse and awaken the American people. We the people are sovereign, and that’s the highest office in the land, and you have a duty, not an option, but a duty to participate in government. A duty to have your eyes and ears alert to government abuses, a duty to participate in the dialogue, so your ideas can enrich the debate. And that’s unfortunately absent at present. Now, I don’t think the democracy is quite as decrepit as you’ve described. I think one example, which was quite refreshing, was the public outcry against another war in Syria. If it wasn’t for that public consensus, President Obama was ready to fire eight hundred cruise missiles into Syria, and we’d be engaged in another futile fool’s errand, making us complicit in further moral evils and stupidities. And so it showed, that the President and the Congress did wake up when the shouting was sufficiently loud. But we need to have that regularly and constant, and it has to be an unwritten rule of American life. That’s what you buy into when you’re an American citizen. And that’s gotta be preached around the dinner table, the breakfast table, the classroom, and social engagements, and otherwise. That’s what makes us Americans.
Well, Bruce Fein, I appreciate you joining us here today. And I thank you.
Thank you, Ian. It’s been delightful.
Bruce Fein would delete all tweets related to Mattie Lolavar, though their text stayed here in this site’s screenshots. He would get a weekly column at The Washington Times (link), where he would continue to rail against the national security state that he so recently supported, such as “American political leaders – not the CIA – were the post-9/11 culprits”, “Republican counterfeit conservatives seek presidency”, “Stop U.S. democracy promotion abroad”, and “It’s time to abolish the CIA”. But there was also “The superiority of Western culture”, which featured this section: “Western culture is superior to all others. It is the cornerstone of civilization. It is the only culture in the history of the world that makes votive offerings to reason and dissent in all their moods and tenses.” and “This should be taught in the United States and throughout the world.” There also was “Curing the sexual assault epidemic”, accompanied by photos of Bill Clinton and Monica Lewinsky. “The case of President William Jefferson Clinton speaks volumes about how far the male culture has to go…Think of the terrible message he is sending to male youths. There is no shame or penalty in using women to gratify your sexual appetites. Sexual assault is not far away.” There was also “Nancy Pelosi insults women”: “House Democratic Leader Nancy Pelosi has insulted women far beyond the epithets or inanities of Rush Limbaugh or Todd Aiken. She played the gender card last week to exculpate her responsibility for the Democratic Party shellacking in the 2014 midterm elections.” Fein had tweeted, “Warning: Every person the filthy, sordid, mega-slut Ms. Mahtaub Lolavar touches turns to nauseating depravity.” Fein had no shortage of warnings about women, whether they be Mattie Fein or others.
Fein would also post “Hillary’s gender hallucinations” and “Handcuffing Queen Hillary”, and this was not surprising; “Clinton Opponents Hone New Barbs and Attacks as 2016 Campaign Nears” by Amy Chozick pointed out that “plans to introduce a website called HillaryWatch.com that will largely focus on Mrs. Clinton’s hawkish foreign policy positions and her views on executive power.” Fein had a problem with Hillary Clinton’s unrestrained use of executive power, the very position he’d defended in the Iran-contra report, and which served as the keystone for Dick Cheney’s own policies. Though Fein said the website grew from a pamphlet on Senator Rand Paul’s policy positions (he is an ardent defender of Paul, see “Rand Paul knocks out Marco Rubio like Ali over Foreman” or “Rand Paul’s pioneering war declaration”), Paul kept his distance: “A spokesman for Mr. Paul said the senator had met Mr. Fein but never talked with him about an anti-Hillary website.”
On January 24, 2015, Mattie Fein would argue for punishing civil suits against Edward Snowden and Julian Assange in an editorial for The Hill, “Cyber questions for Obama’s AG nominee” (archive.today link):
Edward Snowden and perhaps co-conspirators in the conversion of 1.7 million classified government files for his use and that of his associates, or the media internationally, are also beyond the reach of the criminal law. Snowden remains in Russia and other infamous media figures associated with him, scattered around the globe. Wikileaks and Julian Assange have remained a menace to the United States over unauthorized disclosure of classified information also beyond the realm of a criminal prosecution. Ditto North Korea’s involvement with the Sony hacking incident.
With regard to Snowden, Assange, and the other international bad cyber actors, the United States could consider filing a civil suit against him for conversion of government information. Remedies could include money damages, return or destruction of the information, or an injunction against further publication of sharing of the documents. An injunction against international leakers and hackers would not run afoul of the Pentgon Papers precedent because there the parties to be enjoined, The New York Times and The Washington Post, had not converted or purloined the documents at issue. Additionally, the Pentagon Papers ruling did not foreclose a damage remedy against the newspapers for profiting from the exploitation of stolen property.
That suggests broadening civil actions against leakers, hackers, and co-conspirators to include all parties that knowingly and directly benefited financially from use of the government’s converted documents. These would include book authors or publishers, movie producers, or media outlets who relied in whole or in part on stolen intelligence materials.
There is precedent for the U.S. government to use civil lawsuits to protect classified information. Former CIA agent, Frank Snepp, published a book about CIA activities in South Vietnam, Decent Interval, without submission for prior pre-publication review. The CIA, upheld by the U.S. Supreme Court, won an injunction providing for the clearance of any future publications by Snepp. The Court held that the United States was entitled to the profits Snepp derived from the book.
Mattie Fein’s credit listed the company she currently headed: “Fein is president of M22 Strategies, a policy and research firm focused on security and cyber policy.” The address for M22 Strategies was a UPS drop box in Florida18.
Wikileaks would mention the editorial in a tweet, re-tweeted by Fein (tweetsave link):
WikiLeaks (@wikileaks) January 25, 2015
The re-tweet in a cropped screenshot of Fein’s tweets:
There was also this unironic tweet by a former supporter of the Iraq war (tweetsave link):
Krafthammer today deplores Iran's regional hegemony he helped create by exhorting war against Saddam. He has met the enemy and he is it.—
Bruce Fein (@BruceFeinEsq) January 23, 2015
Fein would offer this tweeted note on his past fracas with his ex-wife (tweetsave link):
My domestic fury provoked me to make untrue statements about Ms. Mahtaub Lolavar. I retract them. The matter is closed.—
Bruce Fein (@BruceFeinEsq) January 06, 2015
This post began with a conspiracy dissolving into the mundane details of a broken marriage. It returns, for the moment, as something with the beguiling veneer of conspiracy.
As already posted, Wikileaks would tweet out a poisonous note in response to Mattie Fein’s editorial:
WikiLeaks (@wikileaks) January 25, 2015
This would prompt the following response by Jesselyn Radack, a whistleblower and the attorney for another whistleblower, Edward Snowden19.
unR̶A̶D̶A̶C̶K̶ted (@JesselynRadack) January 25, 2015
The following are the back and forth replies to the initial Wikileaks tweet; Justin Raimondo is a well-known conservative anti-war activist.
Bruce Fein (@BruceFeinEsq) January 28, 2015
Justin Raimondo (@JustinRaimondo) January 28, 2015
WikiLeaks (@wikileaks) January 28, 2015
WikiLeaks (@wikileaks) January 28, 2015
Justin Raimondo (@JustinRaimondo) January 28, 2015
WikiLeaks (@wikileaks) January 28, 2015
This post began off another post on the Feins which ended with a reference to Divine Invasions: A Life of Philip K. Dick, and the idea of finally seeing in death all the face down cards of life face up. This post-script reminds me of Philip K. Dick again, and my ridiculous wish about what actually happens at the end of A Scanner Darkly: that the mind of Bob Arctor is perfectly intact, that it’s all a subterfuge of his own to infiltrate the heart of the drug smuggling empire, to take down New Path. You think I’m falling apart? I’m just going deeper undercover. You think you’ve seen me clearly? I’m still a secret agent.
(On July 1st, the following changes were made: footnote #8, listing the interview of Bruce Fein by Jack Hunter was added; footnote #15, a supplemental screenshot of the SPN list featuring the Grassroot Institute of Hawaii was added; an overall clarifying edit, without chaning any meaning, was made; spells were checked; the D.C. press were no longer referred to as a blind and lazy mole rat, but a blind masturbating mole rat. On July 2nd, some links for footnotes #11 through #14 were fixed; some additional material in the “war machine gravy train” paragraph was added, including the links to Fein’s pieces in the Washington Times and Slate. On July 3rd, a new footnote #11 was added – all footnotes following it were incremented by one – for the soure of the information on Jack Hunter’s past. On July 4, 2014, excerpts were added to footnote #2 from the Dana Milbank article, “E-mails back claim that Sen. Rand Paul ‘stole’ NSA lawsuit”, which providing additional support to the allegation that Rand Paul’s NSA lawsuit was very much plagiarized from Fein’s work.)
Pursuant to this second contract, Miss Lolavar went to Argentina in August 2000 to assist de Santibañes with preparations for his testimony in Argentine congressional hearings inquiring into allegations that he and the Argentine intelligence agency, known as SIDE, were responsible for bribing various Argentine senators in exchange for political support.
Morris and Stone assigned other tasks to Miss Lolavar while she was in Argentina. Among other acts, they instructed her to contact SIDE and obtain a list of journalists who accepted bribes from that organization in order to harm the credibility of those same journalists in reporting on a bribery scandal surrounding de Santibañes and President de la Rua, as well as requiring her to spread false information to the press concerning de la Rua’s political opponent, Dr. Carlos Menem.
A request that occasioned controversy between Miss Lolavar and the defendants was Morris and Stone’s request that she serve as an intermediary in an anonymous wire transfer of funds to an official in Israel. These funds were to be paid to secure intelligence files from the Israeli government to assist de la Rua’s political domestic disputes with Menem, and to imply a corrupt relationship between Menem and George W. Bush, who was then running against Albert Gore for the United States presidency. These files were to be altered by Miss Lolavar to appear to be SIDE documents.
When the defendants became concerned that this plot would be discovered and traced back to them, they ordered Miss Lolavar to orchestrate a press response to blame Vice President Gore for the dissemination of the documents, since it was known to them that the Gore campaign had been attempting to connect Menem with the Bush campaign.
When Miss Lolavar refused to cooperate with these demands, the defendants undertook a series of reprisals. First, they refused to pay her fees under the contract until she executed the wire transfers. Additionally, they made a number of false defamatory statements concerning her, including that she was anti-Semitic, that her efforts to disclose these transactions were the result of a political bribe by Menem’s Peronist Party, and that she forged the correspondence that was evidence of the defendants’ wrongdoing.
2 From “Rand Paul and Ken Cuccinelli accused of stealing NSA lawsuit” by Dana Milbank, on the similarities between the two drafts:
But a Jan. 15 draft of the complaint written by Fein has long passages that are nearly identical to those in the complaint Cuccinelli filed Wednesday. Except for some cuts and minor wording changes, they are clearly the same documents.
For example, Fein’s version said, “When the MATP was disclosed by Edward Snowden, public opinion polls showed widespread opposition to the dragnet collection, storage, retention, and search of telephony metadata collected on every domestic or international phone call made or received by citizens or permanent resident aliens in the United States.”
Cuccinelli’s version said, “Since the MATP was publicly disclosed, public opinion polls showed widespread opposition to the dragnet collection, storage, retention, and search of telephone metadata collected on every domestic or international phone call made or received by citizens or permanent resident aliens in the United States.”
Fein wrote: “On information and belief, Defendants’ Mass Associational Tracking Program since its commencement in May 2006 has not stopped or been instrumental in stopping even one imminent international terrorist attack or has otherwise assisted Defendants in achieving any time-sensitive objective.”
Cuccinelli’s version: “Upon information and belief, since its commencement in May 2006, Defendants’ Mass Associational Tracking Program has not stopped or been instrumental in stopping even one imminent international terrorist attack or otherwise assisted Defendants in achieving any time-sensitive objective.”
A follow-up article by Milbank (reached via “‘My marginalization was thoroughly unfair’” by Steve Benen), “E-mails back claim that Sen. Rand Paul ‘stole’ NSA lawsuit”, gives further support that Bruce Fein initiated the allegations that the NSA suit was plagiarised from his initial draft, with the first complaint being sent from Bruce Fein’s email address, not his ex-wife’s:
Here is the first email Fein wrote, which he sent to Doug Stafford, Paul’s top political advisor.
On Feb 12, 2014, at 1:56 PM, “Bruce Fein” email@example.com wrote:
The protocols for preparing and filing the class action complaint today were hugely suboptimal.
My name was not on the complaint despite the fact that it was predominantly my work product over several weeks and two hundred hours of research, meetings, and drafting. Ken never showed me the final complaint before submission. My name could not be on the complaint under DC Bar Rules because I could not prepare a timely engagement letter. I was never informed until yesterday by Ken of the details of the collaborative arrangement between FreedomWorks and Rand for litigating and paying for the lawsuit. I promptly revised the engagement letter when the information was received, and it has been forwarded via Ken to Rand and FreedomWorks.
I did not learn of the date for filing except by inadvertence from Ken a few days ago.
I was not included in any briefing of Rand about the complaint before filing and press conference today despite the fact that I know vastly more about the Fourth Amendment issue and the history of NSA surveillance than anyone else on the team.
My outstanding invoice for work indispensable to the lawsuit should be paid no later than Friday, February 14, an expectation which is completely justified in light of all the circumstances. Please alert me if the work description on the invoice needs alteration.
Thanks for your attention to these matters.
Cuccinelli’s limited experience in the venue, from Milbank’s “Rand Paul and Ken Cuccinelli accused of stealing NSA lawsuit”:
But when Paul filed his suit at the U.S. District Court in Washington on Wednesday morning, Fein’s name had been replaced with that of Ken Cuccinelli, the failed Republican gubernatorial candidate in Virginia who until last month had been the state’s attorney general. Cuccinelli has never argued a case in that courthouse, and he isn’t even a member of the D.C. bar (he also filed a motion Wednesday seeking an exception to allow him to argue this case in D.C.). But he is, like Paul, a tea party darling.
Mattie Fein on Cuccinelli, from Milbank’s “Rand Paul and Ken Cuccinelli accused of stealing NSA lawsuit”:
Fein, who has not been paid in full for his legal work by Paul’s political action committee, was furious that he had been omitted from the filing he wrote. “I am aghast and shocked by Ken Cuccinelli’s behavior and his absolute knowledge that this entire complaint was the work product, intellectual property and legal genius of Bruce Fein,” Mattie Fein, his ex-wife and spokeswoman, told me Wednesday. “Ken Cuccinelli stole the suit,” she said, adding that Paul, who “already has one plagiarism issue, now has a lawyer who just takes another lawyer’s work product.”
Again from Milbank’s “Rand Paul and Ken Cuccinelli accused of stealing NSA lawsuit”, how dumb is Ken Cuccinelli?:
When Mattie Fein responded in an e-mail to Cuccinelli calling him “dumb as a box of rocks,” Cuccinelli wrote another e-mail to Bruce Fein saying, “I think this relationship is untenable.”
Fein runs a Washington DC lobbying outfit called The Lichfield Group. His lobby group’s website is currently “under construction,” but before it was deleted, Fein used to boast about his excellent connections to the same government agencies that he, as a Ron Paul libertarian, opposes. A scrubbed “Expertise” page on the Lichfield Group’s website boasted:
The Lichfield Group features unrivalled government, media, and business experience. Exemplary is the Group’s high level connections with the Department of Justice, the Department of State, and the Central Intelligence Agency, on the one hand, to The New York Times, The Washington Times, The Wall Street Journal, and nationwide broadcast or cable networks on the other.
The Group’s unsurpassed combination of legal, business, media, political, and government savvy enables it to handle crisis management, tactical, or strategic positioning with unexcelled deftness. Whether a client is a giant corporation handcuffed by ill-conceived United States government policies or a foreign government anxious to influence the decisions of Congress, the President, agencies, the judiciary, or State governments, The Lichfield Group is armed with the skills and contacts indispensable for success.
4 Should these tweets be deleted, these screenshots will show what this page looked like when they were extant:
5 The tweets:
@BruceFeinEsq What’s with all the slut shaming, Bruce? Seems beneath you…has someone hijacked your Twitter account?—
Don D. (@MayorMcDiF) June 24, 2014
Should this tweet be deleted, this screenshot will show them when they were extant:
6 From “Rand Paul didn’t plagiarize his NSA lawsuit” by Adam Serwer; it seems this headline is a little too absolute and unqualified. Based on the examples given by Dana Milbank, there are uncanny similarities between the two drafts, and all that has taken place is that Fein does not make such plagiarism charges, though his ex-wife does:
A spokesperson for RANDPAC forwarded an email from Fein denying Mattie Fein’s allegations. “Mattie Lolavar was not speaking for me,” Fein said in the email. “Her quotes were her own and did not represent my views. I was working on a legal team, and have been paid for my work.” Bruce Fein confirmed to msnbc that the email was from him.
7 Should this tweet be deleted, this screenshot will show what this page looked like when they were extant:
8 This interview with Jack Hunter, conducted on July 6, 2010, can be found in four parts on youtube: “SA@TAC – Bruce Fein on “American Empire” 7/6/10 Part 1″, “SA@TAC – Bruce Fein on “American Empire” 7/6/10 Part 2″, “SA@TAC – Bruce Fein on “American Empire” 7/6/10 Part 3″, “SA@TAC – Bruce Fein on “American Empire” 7/6/10 Part 4″.
The excerpt is taken from part one.
9 This story is covered in several places, including this site: “The Ron Paul Newsletter Story That I Found The Most Disturbing: “Blast ‘Em?””.
10 This story seems to have ignored by just about every news outlet, though it is covered in-depth on this site: “Andrew Breitbart: Psychosis in a Political Mask Part One”.
12 From “U.S. military teams, intelligence deeply involved in aiding Yemen on strikes” by Dana Priest, via “Bum Fights” by Mark Ames:
The Obama administration’s deepening of bilateral intelligence relations builds on ties forged during George J. Tenet’s tenure as CIA director.
Shortly after the Sept. 11, 2001, attacks, Tenet coaxed Saleh [Yemen president Ali Abdullah Saleh] into a partnership that would give the CIA and U.S. military units the means to attack terrorist training camps and al-Qaeda targets. Saleh agreed, in part, because he believed that his country, the ancestral home of Osama bin Laden, was next on the U.S. invasion list, according to an adviser to the Yemeni president.
Tenet provided Saleh’s forces with helicopters, eavesdropping equipment and 100 Army Special Forces members to train an antiterrorism unit. He also won Saleh’s approval to fly Predator drones armed with Hellfire missiles over the country. In November 2002, a CIA missile strike killed six al-Qaeda operatives driving through the desert. The target was Abu Ali al-Harithi, organizer of the 2000 attack on the USS Cole. Killed with him was a U.S. citizen, Kamal Derwish, who the CIA knew was in the car.
Word that the CIA had purposefully killed Derwish drew attention to the unconventional nature of the new conflict and to the secret legal deliberations over whether killing a U.S. citizen was legal and ethical.
His departure from the G.O.P. was notable because Barr didn’t just work in Congress; he often lived there, sleeping on his office couch. And when the Republican leaders wanted to be sure the far-right wing would support a measure they frequently went to him first. Barr didn’t just advocate Second Amendment rights; he held a seat on the board of the National Rifle Association. Although he voted in favor of some civil-liberties and small-government measures, he was also an ardent supporter of the war on drugs. He repeatedly sponsored legislation to undermine ballot initiatives legalizing medical marijuana-“bogus witchcraft,” he called it-in Washington, D.C. Barr vehemently opposed abortion, and once argued that even if his wife were raped he would do what he could to prevent her from having one. He wrote the Defense of Marriage Act, voted for a constitutional amendment outlawing flag desecration, and even tried to legislate against Wiccan soldiers who wanted to practice their faith while in the service. A churchgoing Methodist, Barr rarely invoked religion when discussing policy with his aides, but he told constituents that “God’s hand” was guiding his votes. In 1998, he traversed the country, trying to persuade people that President Clinton was leading America into amorality. “You can lie, cheat, steal, shoot someone,” Barr said in Iowa, at an event attended by Republican Presidential hopefuls. “You can do whatever you want and it doesn’t matter-it’s a cartoon world.” In 1999, Congressional Quarterly labelled Barr a “Conservative True Believer.”
Perhaps the best source on the passage of the destructive drug laws of the 1980s and 1990s is Eric Schlosser’s Reefer Madness, and it makes clear Barr’s full and enthusiastic involvement:
In 1981, Congressman Newt Gingrich introduced a bill to legalize the medicinal use of marijuana. Fifteen years later, as Speaker of the House, Gingrich sponsored legislation demanding a life sentence or the death penalty for anyone who brought more than two ounces of marijuana into the United States. Although the Clinton Administration opposed that bill, it accepted the basic premises of marijuana prohibition, allowing the heirs of the Reagan revolution to set America’s policy on the drug. Senator Mitch McConnell and Congressman Bob Barr emerged as two of pot’s fiercest and most outspoken critics. McConnell tried without success to make federal penalties for selling or possessing marijuana equivalent to those for selling or possessing cocaine and heroin. Barr fought hard to prevent any research into the “so-called medicinal use of marijuana” and claimed such attempts were part of a vast conspiracy. “All civilized countries in the world,” he said, “are under assault by drug proponents seeking to enslave citizens.” He called the effort to reform the nation’s marijuana laws a “subversive criminal movement.” McConnell and Barr were deeply concerned about the potential harms caused by smoking marijuana; but smoking cigarettes was a different story. Barr opposed lawsuits against tobacco companies, arguing that such efforts were reminiscent of “Soviet rule” and that the product in question was “legal, widely used, profitable, disfavored by the ruling intelligentsia…and subject to some colorable claim that it harmed someone, somehow, somewhere.” In 2002 McConnell accepted more money from tobacco lobbyists than any other member of Congress. Tobacco use is the leading cause of preventable deaths in the United States, responsible for an estimated 440,000 deaths every year.
Maryland-based author James Bovard sued 2008 Libertarian Party presidential candidate Bob Barr for $47,000 he’s owed after ghostwriting a book for the former congressman. Barr, who once called [link does not go to the proper text in the original, so it’s been fixed] for “a surge in federal fiscal responsibility,” this month reported still owing a dozen different vendors an aggregate $157,450.
“I suppose when you deal with politicians, you shouldn’t have high expectations,” Bovard said. “He thinks he can walk away from paying his debt, but he is mistaken.”
15 What follows is the full text from Bruce Fein’s endorsement of Barr:
June 20, 2013
Fein – “Only Bob Barr Can Protect and Advance the Constitution in Congress.”
Bruce Fein, one of the leading Constitutional experts in the United States, is proud to endorse Bob Barr for Congress.
“It is vital to all who care about the Constitution, and who seek to have a Member of Congress who not only supports limited constitutional government but understands it, that Bob Barr return to Congress in GA 11,” Fein said in a statement today.
Fein said also:
“America is at a crossroads. There is a real battle in Washington between those who support a more oppressive federal government and those who support the Constitution. This is not a time for well-meaning but inexperienced people in Congress. We need Bob Barr, who brings his experience, seniority, and constitutional expertise with him and who will, on Day One, lead the movement, at a national level, for limited constitutional governance in Washington.”
“If you are a conservative who supports limited government and the Constitution, then join me in supporting Bob Barr for Congress,” concluded Fein. Bob understands that the final end of the state is to make men and women free to develop their faculties and to be morally accountable for their destines, not to create a Leviathan regulating and scrutinizing every nook and cranny of our lives.”
“I welcome the endorsement of my good friend, Bruce Fein, a constitutional scholar with whom I have been proud to work with for many years, said Barr; who continued: “It is an honor to have Bruce on our team as we work to restore and reaffirm the concept of limited government in Washington and respect for the Constitution.”
Bruce Fein is Chairman of the American Freedom Agenda, founder of Bruce Fein & Associates, Inc., and The Lichfield Group; author of Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy; and a columnist for The Washington Times. Mr. Fein graduated with honors from Harvard Law School in 1972, clerked for a prestigious federal court, served as special assistant to the Assistant Attorney General for the Office of Legal Counsel and the Assistant Attorney General for Antitrust, Assistant Director for the Office of Legal Policy, Associate Deputy Attorney General, General Counsel to the Federal Communications Commission, Counsel to the Joint Congressional Committee on Covert Arms Sales to Iran, Visiting Fellow for Constitutional Studies at the Heritage Foundation, Adjunct Scholar at the American Enterprise Institute, and Guest Lecturer at the Brookings Institute. Mr. Fein specializes in constitutional and international law, is a frequent witness before Congress, and is a regular guest on national television and radio.
Since everything related to a political campaign is ephemeral, I’ve uploaded screenshots of this page in the campaign website should it be down.
16 Should this site list go down, or should this entry be deleted, the following is a screenshot from the page on June 30, 2014:
While it has become an $83 million dollar right-wing empire, SPN and most of its affiliates do not post their major donors on their websites. The identities of the donors we have discovered reveal that SPN is largely funded by global corporations – such as Reynolds American, Altria, Microsoft, AT&T, Verizon, GlaxoSmithKline, Kraft Foods, Express Scripts, Comcast, Time Warner, and the Koch- and Tea Party-connected DCI Group lobbying and PR firm – that stand to benefit from SPN’s destructive agenda, as well as out-of-state special interests like the billionaire Koch brothers, the Waltons, the Bradley Foundation, the Roe Foundation, and the Coors family – that are underwriting an extreme legislative agenda that undermines the traditional rights of modern Americans. Corporations like Facebook and the for-profit online education company K12 Inc., as well as the e-cigarette company NJOY, also fund SPN, as demonstrated at its most recent annual meeting.
M22 Strategies, Inc.
4095 State Rd 7
Wellington, FL 33449
19 The tweets on twitsave: “Mattie Fein doesn’t have legal…” (link); “Surely you don’t agree…” (link); “I did not write the article.” (link); “You represented Lon Snowden.” (link); “The problem is that Bruce…” (link); “Hard to believe…” (link); “The question is whether…” (link).