Is the slippery slope towards totalitarian 'national security' government becoming an avalanche?

Glenn Greenwald "on the claimed 'war exception' to the Constitution", and Dennis Blair's testimony on targeting Americans for assassination.[much edited version of Glenn's post; read the whole thing]:

" . . . the Obama administration has adopted the Bush policy of targeting selected American citizens for assassination if they are deemed (by the Executive Branch) to be Terrorists. . .
Although Blair (Dennis) emphasized that it requires "special permission" before an American citizen can be placed on the assassination list, consider from whom that "permission" is obtained: the President, or someone else under his authority within the Executive Branch. There are no outside checks or limits at all on how these "factors" are weighed. . .

" That's basically giving the President the power to impose death sentences on his own citizens without any charges or trial. Who could possibly support that?

" Remember when many Democrats were horrified (or at least when they purported to be) at the idea that Bush was merely eavesdropping on American citizens without judicial approval? Shouldn't we be at least as concerned about the President's being able to assassinate Americans without judicial oversight?

"Adam Serwer wrote:

" This is the new normal for Republicans: You can be denied rights not through due process of law but merely based on the nature of the crime you are suspected of committing.

"That's absolutely true, but that also perfectly describes this assassination program -- as well as a whole host of other now-Democratic policies, from indefinite detention to denial of civilian trials.

* * * * *

"The severe dangers of vesting assassination powers in the President are so glaring that even GOP Rep. Pete Hoekstra is able to see them (at least he is now that there's a Democratic President). At yesterday's hearing, Hoekstra asked Adm. Blair about the threat that the President might order Americans killed due to their Constitutionally protected political speech rather than because they were actually engaged in Terrorism. This concern is not an abstract one. The current controversy has been triggered by the Obama administration's attempt to kill U.S. citizen Anwar al-Awlaki in Yemen. But al-Awlaki has not been accused (let alone convicted) of trying to attack Americans. Instead, he's accused of being a so-called "radical cleric" who supports Al Qaeda and now provides "encouragement" to others to engage in attacks

"The question of where First Amendment-protected radical advocacy ends and criminality begins is exactly the sort of question with which courts have long grappled. . .

"The question of where First Amendment-protected radical advocacy ends and criminality begins is exactly the sort of question with which courts have long grappled. In the 1969 case of Brandenburg v. Ohio, the Supreme Court unanimously reversed a criminal conviction of a Ku Klux Klan leader who -- surrounded by hooded indivduals holding weapons -- gave a speech threatening "revengeance" against any government official who "continues to suppress the white, Caucasian race." The Court held that the First Amendment protects advocacy of violence and revolution, and that the State is barred from punishing citizens for the expression of such views. The Brandenburg Court pointed to a long history of precedent protecting the First Amendment rights of Communists to call for revolution -- even violent revolution -- inside the U.S., and explained that the Government can punish someone for violent actions but not for speech that merely advocates or justifies violence (emphasis added):

"From all appearances, al-Awlaki seems to believe that violence by Muslims against the U.S. is justified in retaliation for the violence the U.S. has long brought (and continues to bring) to the Muslim world. But as an American citizen, he has the absolute Constitutional right to express those views and not be punished for them (let alone killed) no matter where he is in the world; it's far from clear that he has transgressed the advocacy line into violent action. Obviously, there are those who justify such assassination powers on the ground that radical Islam is a grave threat, but that is what is always said to justify Constitutional abridgements . . . shouldn't those who want the President to be able to assassinate American "radical clerics" without a trial also support the President's targeting of Americans who advocate extremism or violence from a far right or extremist Christian perspective? What's the principle that allows one but not the other?

"In response to these concerns, Admiral Blair said yesterday: "We don't target people for free speech. We target them for taking action that threatens Americans or has resulted in it." But the U.S. Government -- like all governments -- has a long history of viewing "free speech" as a violent threat or even Terrorism. That's why this is exactly the type of question that is typically -- and is intended to be -- resolved by courts, according the citizen due process, not by the President acting alone. That's especially true if the death penalty is to be imposed.

" . . . Obama's presidential assassination policy completely short-circuits that process. It literally makes Barack Obama the judge, jury and executioner even of American citizens. Beyond its specific application, it is yet another step -- a rather major one -- towards abandoning our basic system of checks and balances in the name of Terrorism and War. . . .

* * * * *

" To justify the abridgment or even suspension of the Constitution on the ground of "war" is to advocate serious alterations to our Constitutional framework that are more or less permanent. Several points about that "war" excuse:

"First, there's no "war exception" in the Constitution. . . . Second, strictly speaking, we're not really "at war," . . Even the Bush administration conceded that this is a vital difference when it comes to legal rights.

"Far beyond the specific injustices of assassinating Americans without trials, the real significance, the real danger, is that we continue to be frightened into radically altering our system of government. In Slate yesterday, Dahlia Lithwick encapsulated this problem perfectly . . .

(Lithwick) " America has slid back again into its own special brand of terrorism-derangement syndrome.

" Moreover, each time Republicans go to their terrorism crazy-place, they go just a little bit farther than they did the last time, so that things that made us feel safe last year make us feel vulnerable today. . . . In short, what was once tough on terror is now soft on terror. And each time the Republicans move their own crazy-place goal posts, the Obama administration moves right along with them. . . .

" We're terrified when a terror attack happens, and we're also terrified when it's thwarted. We're terrified when we give terrorists trials, and we're terrified when we warehouse them at Guantanamo without trials. If a terrorist cooperates without being tortured we complain about how much more he would have cooperated if he hadn't been read his rights. No matter how tough we've been on terror, we will never feel safe enough to ask for fewer safeguards. . . .

" But here's the paradox: It's not a terrorist's time bomb that's ticking. It's us. Since 9/11, we have become ever more willing to suspend basic protections and more contemptuous of American traditions and institutions. The failed Christmas bombing and its political aftermath have revealed that the terrorists have changed very little in the eight-plus years since the World Trade Center fell. What's changing -- what's slowly ticking its way down to zero -- is our own certainty that we can never be safe enough and our own confidence in the rule of law.

"This descent has certainly not reversed itself -- it has not really even slowed -- with the election of a President who repeatedly vowed to reject this mentality. . .

http://www.salon.com/news/opinion/glenn_greenwald/2010/02/04/assassinations/index.html

And for those interested, the complete Dahlia Lithwick comment on "terrorism derangement syndrome":

http://www.slate.com/id/2243429

Sorry for the length of the post. WTF is wrong with this country, and what are we becoming?

Gaithner must go . . .

In starkest terms, Gaithner is part of the problem -- the enabling network that created the crisis, including the artificially low interest rates underwritten by the Fed that facilitated the mortgage orgy and subsequent bubble -- not a credible part of the solution.

However, due to America's schizophrenic attitude toward white collar robbery, he, Summers, Rubin, and other smart guys sit fat and happy, and are not in jail.

In more accurate, terms since Gaithner and that ilk are authors of the policies and practices that nearly took down the economy they are psychologically not equipped to:

1) admit and internalize that that is exactly what they did -- with a significant degree of knowledge. No one fully knows markets, so of course they could not have exactly anticipated that the results of their greedy policies and practices would be as extreme as they were -- though in the backwash of Glass-Stegaall abolishment they, if anyone, should have heard the steps of the 30's bank collapse close behind.

2) craft remedial policies and approaches that have as their basis the recognition and indictment of exactly the practices they created.

I'm not even alleging conscious avoidance here. I'm mere pointing out a basic and thoroughly credible psychological pattern (of sublimation and denial) that prevents Gaithner or the other primary actors from coming to the economic crisis with untainted mindsets. They literally are not equipped to grasp and accept some of the very fundamental issues, mainly proceeding from greed and recklessness, feelings of invincibility, and a reckless addiction to the adrenalin rush of risk.

Far from jailing them, have we heard a peep of apology commensurate with the damage done? That is a hallmark of denial, sublimation, and projection. Gaither makes a stab at dissing those who fomented the crisis, as does Obama, but anyone familiar with reading body language sees a lack of authenticity, discomfort, and fraudulence. And why not? Stoked by the unconscious guilt he bears, it is impossible for him to demonstrate authenticity of belief or demeanor.

And it's not as if there aren't economists out there who didn't foresee the collapse. So why, now, would we want to have the very culpable, and psychologically crippled, financiers in charge?

What does Obama want?

What does Obama want? Well, here is another indication that he definitely wants to look forward and not backward, particularly when it come to malfeasance by the Bush administration (much of which he has found useful to continue):

" . . . an upcoming Justice Department report from its ethics-watchdog unit, the Office of Professional Responsibility (OPR), clears the Bush administration lawyers who authored the “torture” memos of professional misconduct allegations. . . .":

http://emptywheel.firedoglake.com/2010/01/29/opr-report-altered-to-cover-bush-doj-malfeasance/

It seems clear that Obama is not interested in the messier aspects of the rule of law. Not interested in much of a progressive agenda. Not interested in treating the Republicans in Congress as the venal obstructionists they are. Not interested in rocking too many boats to get things moving.

What we can say, or which seems to be Obama's main interest is the vacuous wish to "change the tone in Washington". This supposedly will help Americans feels so much better about the lack of significant substantive work being done in domestic or foreign affairs (except war and the military; always have to remember that's a growth industry. A real change agent for America in the world). Changing the tome is a nice thought. Actually accomplishing something is a more meaningful one.

Obama may change the tone in Washington, but only by acquiescing continually to the repubs and blue dogs. And since they don't seem to want any change that benefits most Americans, the prescription is for nothing significant to happen.

Obama is getting a rep for being a softy; he calls it civility. It's not going to work. How to get the message through??? Maybe Obama/Emanuel is a fatal combination?

But there is no way to address the nation's problems without breaking a bunch of eggs. All we are getting is the optics. Like the Buddhist saying goes: "painted cakes do not satisfy hunger".

I'm ready for some broken eggs.

SOTU and other guest appearances

The SOTU is not the place to announce personnel changes.

And often it is not the place to play gotcha politics either. But given the universal perception, among sentient being who are not caught up in the republican mass delusion, the politics of "no" deserved to be laid out in front of the American people much more strongly and explicitly than it was (i.e., if I recall, by innuendo and inference from the "if you require 60 votes to pass anything", with a sidelong glance to that part of the chamber. That's not confronting the chief procedural factor underlying the gridlock that Obama identified. It needed to be spelled out. Obama has nothing to lose but some kumbaya points.

Overall, I did not find the tone of the presentation serious enough. Still too much smirking and chuckling; too much congenially clubby nuance. (wink, wink, we all politicians/insiders, eh?) I'm aware that just being solemn can come across unnaturally heavy -- and that one should not try to act too far out of conformity with one's natural presence. However, the tone and presentation did not convey the truly dire state of things; it didn't even come up to matching the words as written.

I also understand Obama was ostensibly trying to start over again, in campaign mode. Up beat, can do, America the great, etc.

No can do. We are where we are, ad it's not something that can be airbrushed away.

I've already suggest that Obama fire some folks (notably Gaithner, Summers and Emmanuel) if he is really serious about change of direction and gaining some initiative.

I hasten to add, that I'm not sure Obama has it in him. Largely, I am beginning to believe, that even if Obama 1) is on 'our' side (you know, saving the republic) 2) recognizes the big shakeups, in personnel and personal mindset that is needed, he lacks the personality traits and is hampered by unresolved 'efficacy' issues to pull it off. (efficacy issues = sort of like getting past seeing himself as either more special or more inferior because he is, well you know . . .)

Including yesterdays televised 'interchange' with the Republicans at their Congressional get together, at which everyone seems to think Obama shone, rather than getting tough and playing hardball, he seems to have doubled down on the message of bipartisanship. While once again he may have won the day in rhetoric and speechifying, does it do anything more than indulge his own personal crusade to 'change the tone' as opposed to meeting the reality of the situation head on with appropriate tactics.? It's not in the Republican strategy to cooperate. And it's barely in the Democratic playbook either. Time to knock heads, not hold hands.

One year later -- wither Obama

We're all pretty good at seeing where Obama has gone wrong, if he ever intended to go right.

The only question, as to his election, is where on the sliding scale one comes down: from Manchurian candidate for the rich and powerful to naive neophyte propelled on the wave of America's celebrity fixation and attention span of 30 second sounbites. Or somewhere in between; and all catapulted on popular reaction to a venal and illicit administration that preceded, two times!

As to his governance, from day one, it was clear. The hopeful counterpoint to those venal and despised Republicans, and the milquetoast toady Democrats turn out to be a cipher. Faced with the huge opportunity to capitalize on the demonstrable hatred of Bush and his gang, administrative and congressional, Obama proclaims, basically, "I want to be your friend". The mildest rebuke, in the inaugural address, to the those who had shattered the nations' well being, was followed by bows on the world stage, and turning over the reins to Rahm and the corporate template.

I don't know what propels this "style" of governance, even given the reserved personality it is attached to. Whether weakness, arrogance, or hubris, or some other. The result, however, seems clear. Whether true belief hidden behind lofty but disconnected rhetoric; or misguided conception of coaxing 'bipartisanship' and alliances with the enemies of the people, like the young guidance counselor who thinks he can encourage good behavior from the meanest of schoolyard bullies. The result has been continuous abandonment of ideals.

And not even soaring "new" ideals; but simply the concept of restoring some healthy direction to the nation which had been the basis of the, now betrayed, expectation the people gave in a huge electoral victory.

We know the record of accomplishments, or lack thereof, since then. From LGBT to Af/Pk; from big banks to big pharma; from Havana to Tel Aviv; from no accountability for crimes to perpetuating the process that generates civil rights-destroying actions. Nada.

So now it's immeasurably harder. If Obama is even inclined to do the work of playing catch up.

1937 Redux? The Obama Freeze

It's smoke and mirrors. The big picture, the big, obscene expenditures on war, get not just short, but NO shrift. We cannot talk about their costs in relation to the needs of the country which are never considered to be competing needs because the controlling class has decided to make it that way. And in that controlling class I include the media which rarely questions the equation.

Obama is trying to pull off the trifecta; continue to open-endedly fund endless war; pretend to get the budget under control with a freeze (while ignoring the military component); pretend to fund essential domestic programs adequately in the guns and butter mold.

If he were serious about changing direction, he wouldn't mount this charade. He wouldn't just change the optics. He would fire Gaithner, Summers and, preeminently Rahm. Even as mere symbols, which of course they are not, it would indicate a president with actual and active cognizance, not one who cogitates and poses and let's the same old actors come up with the same suboptimized solutions.

And then hire some folks with actual productive ideas, not just blab about "fighting" for the people, and floating gratuitious, self elevating talk about being a good one termer versus a mediocre two termer. Uh, Earth to Barack: we make that call, not you. And it ain't looking good for even the former.

I'm afraid it's gone and getting goner every day so to speak. The public is so jaded on politics and politicians, especially at the federal level. And yet, for a brief, and perhaps misguided moment, the country carved out an exception for Barack Obama. So far, when he should have multiplied the force of the initial good will and support out there, he blew it. A gut punch to the optimism he inspired. A massive miscalculation and exercise in back room politics that has failed miserably, and an incredibly naive and/or hubristic display of denying the writing the repubs have been putting on the wall all along: "we are not going to play; not now, not ever". Or a masterful con job?

Some say it was never in the plans anyway. Doesn't matter. It's done. And still we wait for a signal that Obama really get's it.

Accountability for "Torture" -- Can Obama continue to dodge the issue?

With Speaker Pelosi being caught up in dissembling about her involvement with Bush administration torture policies, the republicans have leaped on her as a special gift from heaven to divert attention from the larger issues of investigating torture under Bush itself. Minority leader Boehner is seeking to ratchet the pressure of the Pelosi diversion even further, calling for her to recant her accusation of CIA lying or to apologize:

http://www.cnn.com/2009/POLITICS/05/17/pelosi.torture/index.html

I agree that there is no excuse for Pelosi, or any of the other pols who have dissembled, been complicit, etc., on both sides of the aisle. But with the level of stench getting out of control -- and with the shifting political alliances and cabals seeking to blame and CYA -- what it does say is 1) there must be a process of accountability and 2) the process needs to be removed as far as possible from the politics. This begins to look increasingly like an independent prosecutor, or a special commission with subpoena powers, since too many of the principals are now clearly tainted.

And I agree Obama has the marks of someone whose default position in "national security" matters seems to be the "safe", conservative option, upon which specious logic he has sought to stifle calls for accountability, certainly as may involve the need for his personal action. Still, sooner or later it seems he will not be able to avoid putting his thumb down somewhere, due to the stench and inherent conflicts of interest mentioned, which are only likely to get worse now that the finger pointing and name calling have begun in earnest. Much as he would like to put inquiries off the table, things seem like they are spinning out of control from the political perspective.

For better or worse, Obama is the only one who can instigate a process potentially above politics.

War crimes - prosecute, don't debate Cheney.

Jonathan Turley (who I like, and not just because he teaches at one of my alma maters), on Rachael Maddow, critical of Obama for standing in the way of war crimes prosecutions of Bushies. Quite a few here are strongly interested in accountability as one if not THE issue under pinning the actual restorationof some moral compass for the US, and not just taking Obama's word for it. Many if us are critical of the MSM as well as the alternative media for not pushing the issue .

http://firedoglake.com/2009/03/24/turley-to-obama-indict-cheney-already/

My concern is that by engaging in dialogue with the probable criminal, as Turley notes, Obama is legitimizing Cheney more, and not walking back from the "non-prosecution" stance, appointing a special prosecutor etc. Cheney is trying to normalize and legitimize his presence and his views, constantly watering down the public perception of being being beyond the pale. Obama needs to get out of the way, and stop dialoging with Cheney. When Obama and his surrogates did it with Limbaugh, everyone seemed to think it was a brilliat political move to paint the repubs as Rush clones. I think it's dangerous for Obama to overestimate what he can convey by the his pearly words.

Sand in the gears, Where's the problem, the President or Congress?

SOMETIMES THE PROBLEM IS CONGRESS

. . . and the president needs to lead, e.g. on Israel/Palestine (though it’s a long shot that Obama will indeed lead)

The principals are in a stalemate, and the US has to get over its one-sidedness. There is a dance that takes place between the US and Israel when Israel says or does something that the US doesn't like -- usually when the US finally cannot ignore the conclusion of the rest of the world on some point.

At that point Israel trots out the declaration that, as a sovereign nation it will do whatever it thinks is in its sovereign interest regardless of what others, including the US, may think. At said point, the US figuratively nods its head in agreement, and claims that it has done all it could to register ‘disapproval’ of the said action, following up with the formulation that agrees that Israel is indeed sovereign and acts in its own.

This dance both seeks to get the [current] administration off the hook from the "left" (although that is not an entirely accurate term) which claims the administration can and should push the Israelis harder; and it mollifies the administration critics from the "right" (the neocons, and virtually the entire US political establishment) who want Israel 1) left alone to "act in its best interest”, when it wants the US to keep out, but also 2) want the US to provide all support and succor to Israel up to that point.

In this description of behavior, it is clear to me that only the US can make the behavioral changes needed to move the situation. Those who say there will be no peace until and unless the two parties want it just drive a stake through the heart of the possibility of effective diplomacy. To claim the US has no defacto power is patently absurd. Just absurd.

On the internal US political dynamics of the situation, I keep coming back to the need for Obama to lead because on the ME the Congress is a disgraceful impediment to change, and Executive leadership in this foreign policy area must be determined and strong to overcome Congress fronting for Israel.

SOMETIMES THE PROBLEM IS THE EXECUTIVE

. . . and Congress needs to lead, e.g., on the investigation of the U.S. attorney firing scandal under Bush; or the torture policy and cover up under Bush (though there is no guarantee Congress will lead):

Here is Obama’s OLC (office of legal counsel; previously held by Yoo) head Craig saying, essentially, the unitary executive theory might not be so bad sometimes;

"The president is very sympathetic to those who want to find out what happened," Craig said in a statement yesterday. "But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency.

http://www.washingtonpost.com/wp-dyn/content/article/2009/02/13/AR2009021303093.html

Glen Greenwald nicely synthesizes some of the issues related to torture and executive secrecy as is emerging under Obama:

http://www.salon.com/opinion/greenwald/2009/02/18/savage/index.html

I find this whole schtick of not wanting to "weaken the institution of the presidency" incredible pablum, actually cynical and dismissive of what the Bush "presidency" has done to this country under the guise of "national security".

Obama may finesse these issues in the minds of most people, but if he fails to address, substantively, behaviors and policies much worse than Nixon, his appearance of wimpishness will turn out to have been true, at best.

It will be possibly left up to federal criminal prosecutions to blow the lid off the Bush corruption, and go around Obama's half stepping. (i.e., the federal grand jury looking into the attorney firings is so far on track). That might be a window into the DOJ and the WH. That is if Obama doesn't order Holder to pull the plug on the prosecution to protect the institution of the presidency.

http://murraywaas.crooksandliars.com/2009/02/18/nine-bush-era-officials-have-refused-to-cooperate-with-doj-probes/

Here's another brick in the Bush administration stonewall relating to the suppression of an internal DOJ report (related to DOJ attorney involvement in torture policy) that Mukasey himself initiated. Johnathan Turley is right on the case and will not let these scumbags off, and he is similarly critical of the Obama administration failure to lay down clear markers in any but easy, early actions to kick the can, remaining obscure on pursuing the trail of probable war crimes:

"The controversy, however, should serve to remind citizens that the Obama Administration has still not taken any action on widespread allegations of war crimes. There is clearly an effort to outlast any public interest in such an investigation. Delay will also serve to allow some statute of limitations to run — giving the Administration an excuse not to prosecute on some collateral crimes. However, there are no statutes of limitations for war crimes and the failure of the Administration to act is itself a violation of our obligations under these treaties."

http://jonathanturley.org/2009/02/18/mukasey-delayed-torture-report-bar-charges-may-be-brought-against-bush-officials-like-john-yoo/

It seems that the issue of looking into torture policy more deeply is something the Obama administration would like to just wish away (per the assertion of Jonathan Turley, noted legal scholar, among many others), and preserve some of those unitary executive prerogatives for itself, even at the price of negotiating an accommodation with Rove instead of letting the subpoena process run its course, in order to avoid undercutting the (Bush) claim of executive privilege, leading to the OLC statement by Craig cited above on maintaining "the institution of the Presidency".

Even idea of having Rove willingly now testify before Congress is hardly credible. Questions abound: there would be some grant of immunity; would it be immunity for testimony only, or would it be transactional immunity baring later prosecution on evidence from independent sources? It’s hard to imagine Rove’s attorneys would not have sought to cut out and limit areas of testimony. Who really believes that Rove will say anything so incriminating, of himself or Bush/Cheney, that the scope of inquiry, hashed out in the ground rules for testimony, will not cover. (and of course, one presumes the testimony would be public).

It requires total naïveté to imagine Rove will throw Bush under the bus. The ONLY way to get information out of Rove will be via the threat of legal prosecution/incarceration, and then I wouldn't assume that Rove would not choose to go to jail.

I can only second those smarter than me who caution that the protection of our nation of laws requires that the legal process be used to the full to expose the damage and ongoing danger to the country that is done by covering up the Bush administration. Obama needs to think long and hard about the precedents he would be endorsing by finding neat nuances to avoid the unpleasant work to lancing the boil and undoing Bush’s constitutional excesses. Obama's feet cannot be held too closely to the fire here: excuses of damage to the presidency, or necessary secrecy, need to be rigorously questioned and opposed.Congress must do what is necessary, even in the face of the President's resistance and even, or especially, in the light of their own flagging reputation.

As is often the case, the substantive issues (e.g., torture, firing of US attorneys) are often intertwined with the procedural ones, allowing Executive appointee to respond to Congressional subpoena or not, and vice versa. Where a questionable or illegal procedure is invoked to uphold a questionable or illegal policy, the sum of stench is greater than its respecitve parts.

Accountablity -- What a concept!

In the heady early and self-conscious accommodation-seeking days of the Obama presidency, we seem to be dancing around the edges of the significant issue which, to my mind, is finding an appropriate way forward to publicly and officially document the abuses of power during the Bush era, whether that goes by the name of unitary executive theory, illegal information gathering, violation of Geneva Convention obligations, or some other.

To me, it's the elephant in the room; the huge sigh of relief that the Bush abomination is over, has given way to a seeming wilful amnesia about just how terrible and, probably illegal, in it's dimensions it was.

Books have begun the documentation, e.g., Jane Mayer's “The Dark Side”. But to have the “system” apply some corrective through public process is another, and potentially much needed and more cathartic and curative approach.

There are so many available avenues for finding a way into examination of the abuses -- with the resultant publication and repudiation of practices via developing massive incriminating material, and maybe jail sentences -- its not for want of targets that formal proceedings haven’t begun, somewhere.

It’s lack of will. Political will for sure. And lack of adequate appraisal of the ethical consequences for failure to act. Oh, and not to forget, setting of future precedent by failure to act.