Inflation climbed at the fastest pace in 40 years across the economy, driven in large part by higher energy prices themselves driven in large part by Joe Biden’s energy policy toward Russia and inability to use obsequiousness get OPEC to pump more oil (while leasing less federal land for oil and gas drilling than any president since the end of World War II.) The last time inflation reached over nine percent was 1981 when Ronald Reagan took over from Jimmy Carter. Fueling the inflationary jump was the energy index, which rose 7.5 percent compared to a year ago and contributed nearly half of the overall increase in inflation. That index includes prices for fuel, oil, gasoline and electricity, and it’s up 41.6 percent for the year, the largest 12-month increase since April 1980 under President Jimmy Carter. The consumer price index was 9.1 percent higher earlier this summer than last. There are fears sources of strength in the economy — like the labor market and consumer spending — won’t be enough to fend off another recession. Yet the Fed may need to work more forcefully to slow the economy by raising interest rates, which the central bank has done multiple times this year already. Biden called on Americans to sacrifice, especially at the gas pump, to help win the war against Putin in Ukraine.
The Final Durham Report: Democracy’s Horror Show
Hillary knew. She knew her campaign paid for Russian disinformation (including the alleged pee tape accusations) to be washed through a report by former British intelligence officer Christopher Steele. She knew the information was false but could potentially allow her to win the election. Hillary lied to the FBI about all this, and lied to the American public. Such was her appetite.
The FBI knew. They knew none of the information in the Steele Report could be corroborated, and they knew most of it was false. They turned a blind eye, purposefully and with the intent to defeat Donald Trump in the 2016 election, to basic investigative and tradecraft rules to use the corrupt information to surveil the Trump campaign via the FISA court. When Trump won the election anyway, the FBI continued to use this information to assault the loyalty and viability of President Trump and ultimately tried to use the information via the Robert Mueller investigation to impeach or indict Trump.
Only one person went to jail for all this, a minor player named Kevin Clinesmith for provided false info to the FISA court. No changes are planned for the FBI. No charges are to be brought against Hillary Clinton. The Deep State came within an eyelash of bringing down an unwanted president as surely as they are believed to have done in Dallas ’63. Words were the weapon this time, not bullets.
These are the conclusions of the final Durham Report released last week. The report was written by former Connecticut U.S. Attorney John Durham, who was chosen in 2019 to examine the FBI probe known as “Operation Crossfire Hurricane.” Durham provides the only comprehensive review of what came to be called Russiagate, and shows how close to the edge our democracy came to falling into the abyss at the hands of the Deep State. It all sounds dramatic, as those terms have been bandied about so often and in so many contexts they may have lost some of their meaning. But make no mistake about it — the FBI tried to shape the 2016 election and failing, tried to run Trump out of office. If you thought the “Hunter Biden Letter,” the one signed by dozens of intelligence professionals calling the Biden Diaries potential Russian disinformation was just wrong, you should find the conclusions of the Durham report a horror show.
There was nothing true in the Steele Report, for example, this key paragraph: “Speaking in confidence to a compatriot in late July 2016, Source E, an ethnic Russian close associate of Republican US presidential candidate Donald TRUMP, admitted that there was a well-developed conspiracy of co-operation between them and the Russian leadership. This was managed on the TRUMP side by the Republican candidate’s campaign manager, Paul MANAFORT, who was using foreign policy advisor, Carter PAGE, and others as intermediaries. The two sides had a mutual interest in defeating Democratic presidential candidate Hillary CLINTON, whom President PUTIN apparently both hated and feared.”
The FBI had no intelligence about Trump or others associated with the Trump campaign being in contact with Russian intelligence beyond Steele. Despite being unvetted and uncorroborated and coming from a single source with direct political ties to Trump’s opponent, the FBI used such accusations to justify a full-spectrum surveillance operation against the Trump campaign, the first known such operation in American history. The FBI omitted the fact from its FISA application that Carter Page was in fact not a Russian agent but a paid source for the CIA who had been vetted by the Agency as loyal and reliable. They just lied and even when the lie could not be ignored the FBI lied more times to keep the surveillance application alive before the FISA court.
Durham found investigators “ignored exculpatory evidence, put too much stock in information provided by Trump’s political opponents, and carried out surveillance without genuinely believing there was probable cause to do so.” “Throughout the duration of Crossfire Hurricane, facts and circumstances that were inconsistent with the premise that Trump and/or persons associated with the Trump campaign were involved in a collusive or conspiratorial relationship with the Russian government were ignored or simply assessed away,” Durham wrote. The FBI acted “without appropriate objectivity or restraint in pursuing allegations of collusion or conspiracy between a U.S. political campaign and a foreign power.”
It could not be more clear. The FBI knew what it was doing was wrong and did it anyway because the ends, defeating Trump, appeared to justify the means. No surprise, that has been the slogan behind every democratic election U.S. intelligence agencies have overthrown overseas, so why not follow the same logic when the tools of war came home to attempt to drive the 2016 election to Hillary Clinton.
We now know that almost all of the disinformation in the Steele Report came from one man, Igor Danchenko (whom the FBI had until 2011 investigated as a Russian spy.) Danchenko also fed disinfo to a Clinton supporter and registered foreign agent for Russia, Charles Dolan (who was known to but never interviewed by the FBI) to pass on the Steele to further obscure its origin. But according to the Durham report “The failure to identify the primary sub-source [Danchenko] early in the investigation’s pursuit of FISA authority prevented the FBI from properly examining the possibility that some or much of the non-open source information contained in Steele’s reporting was Russian disinformation (that wittingly or unwittingly was passed along to Steele), or that the reporting was otherwise not credible.”
Everyone knew. The Durham Report confirms on August 3, 2016, the Russiagate allegations were briefed to President Obama, Vice President Joe Biden, and FBI Director James Comey by CIA Director John Brennan at an Oval Office meeting. None of the men briefed, and none of the agencies involved, did anything to intercede in the FBI’s efforts alongside the Clinton Campaign to manufacture collusion between Trump and Russia. Indeed, everyone allowed the falsehoods to linger into the Mueller Report and when that document concluded publicly there was no collusion between Trump and the Kremlin, pivot the same pile of falsehoods to claim Trump somehow obstructed an investigation which actually exonerated him, concluding without indictment as it did.
As for the FBI, the Durham report brutally tells us “the FBI failed to uphold their important mission of strict fidelity to the law.” That they “displayed, at best, a cavalier attitude towards accuracy and completeness.” That the Bureau “disregarded significant exculpatory information that should have prompted investigative restraint and re-examination… there were clear opportunities to have avoided the mistakes and to have prevented the damage resulting from their embrace of seriously flawed information that they failed to analyze and assess properly.” And that “senior FBI personnel displayed a serious lack of analytical rigor towards the information that they received, especially information received from politically affiliated persons and entities.” That “important aspects of the Crossfire Hurricane matter were seriously deficient.” The Report concludes “although recognizing that in hindsight much is clearer, much of this also seems to have been clear at the time.” As for recommendations, the Report states “more training sessions would likely prove to be a fruitless exercise if the FBI’s guiding principles of Fidelity, Bravery and Integrity are not engrained in the hearts and minds of those sworn to meet the FBI’s mission of “Protect[ing]the American People and Uphold[ing] the Constitution of the United States.”
Without the help of the FBI Russiagate would have been nothing but a flimsy Clinton campaign scam. Thus the Durham Report offers one over-arching implied conclusion: Be skeptical of the FBI and watch accusations of collusion and foreign interference closely around the 2024 election. Treason is indeed a twisty path.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
A Spectator Looks at the Durham Report
This week’s Durham Report is as close as we’ll get in our lifetimes to proof the Deep State, working in concert with the mainstream media, exists.
The final 306 page Durham Report was released this week. The report was written by former U.S. Attorney John Durham, who was chosen in the aftermath of the Mueller Report to examine the FBI probe known as “Operation Crossfire Hurricane.” Durham in this final report provides the only comprehensive review of what came to be called in total “Russiagate,” and shows how close our democracy came to failing at the hands of the Deep State. We now know the FBI took disinformation produced by the Russians and used that to justify spying on the Trump campaign. Though Durham does not go into the MSM side of Russiagate, we also now see more clearly how the media played along to press a fully-false narrative of collusion right to the precipice of impeachment or indictment.
The short summary of Durham: willingly or via incredible sloppiness, the FBI participated in an information operation designed first to keep Donald Trump out of the White House and failing that, drive him from office. The op was funded by the Clinton campaign, who paid former British intelligence officer Christopher Steele to create a “dossier,” a report based on Russian disinformation funneled to him by Igor Danchenko (whom the FBI had until 2011 investigated as a Russian spy.) Without vetting or investigating the (dis)information, the FBI used it alongside a tip from a shady Australian diplomat to open full-spectrum surveillance of Donald Trump and his associates, lying to the FISA court along the way. This was the first known time such a thing was undertaken in American political history. The goal was to show collusion between the Trump campaign and the Russian government. When that failed, the FBI pivoted into providing the bulk of data behind the Mueller Report. That Report was designed to take down, via impeachment or indictment, a sitting president and if that too failed, disempower him for much of his term. If you want to call it a soft coup attempt you would not be far off.
As for the FBI, the Durham report unsparingly tells us “the FBI failed to uphold their important mission of strict fidelity to the law.” That they “displayed, at best, a cavalier attitude towards accuracy and completeness.” That the Bureau “disregarded significant exculpatory information that should have prompted investigative restraint and re-examination… there were clear opportunities to have avoided the mistakes and to have prevented the damage resulting from their embrace of seriously flawed information that they failed to analyze and assess properly.” As for recommendations so that such a thing never happens again, the Durham Report weakly offers none and states “more training sessions would likely prove to be a fruitless exercise if the FBI’s guiding principles of Fidelity, Bravery and Integrity are not engrained in the hearts and minds of those sworn to meet the FBI’s mission of “Protect[ing]the American People and Uphold[ing] the Constitution of the United States.” There was a bias at the heart of Crossfire Hurricane that kept agents from carefully examining evidence.
Durham generously does not state the FBI acted incompetently on purpose (it is chilling however to remember FBI agents Peter Strzok and Lisa Page exchanged texts saying “Page: ‘Trump’s not ever going to become president, right?’ Strzok: ‘No. No he’s not. We’ll stop it.’”), allowing some space for beginner’s mistakes such as not vetting Christopher Steele’s sources and methods. Was it active or tacit support by the FBI? Durham does not say. It all does suggest why Robert Mueller walked so close to the edge of indictment and backed off. If his indictments did not hold up under court scrutiny, the people in charge of all this would have been exposed. Mueller was protecting his beloved FBI from the criticism Durham just laid bare. There was a bias at the heart of Mueller’s work that kept agents from carefully examining evidence.
Christopher Steele meanwhile was worth his weight in gold to Clinton: he got the FBI to launch a full-spectrum investigation that included eavesdropping, use of a honey pot dangle, and foreign agents, all of which lead to three years of Mueller and right to the door of impeachment.
Steele’s second prong was the media. Steele set himself up as a source to compliant media about the dossier without revealing to them he was the author of the document. This information loop made it appear a second entity was confirming the contents of the dossier, when in fact it was Steele surreptitiously confirming himself. It’s an old spy trick, getting inside, becoming your own corroborating source. In intelligence work, for the receiver of information, this is known as cross-contamination, an amateur error the FBI seemed OK with. The scam also generated cover for all the politicians and intelligence operatives. They could go to their bosses and say the New York Times found a source confirming what they were hearing from Steele. There was a bias at the heart of the MSM which kept journalists from carefully examining evidence.
And in the end… not much. Only one person was ever convicted of anything (a future Jeopardy! clue, “who was Clinesmith for lying to the FISA court”) and no one in the media was driven into early retirement; on the contrary, Pulitzers were awarded for reporting Russian disinformation laundered through Steele and the FBI. Hillary Clinton came within a sharp breath of beating Trump, and the information op would have played a large part in that. But the lessons learned are not for them. This time they are for us, or rather for us in 2024. We must be more skeptical of any claims of foreign collusion, more watchful of the FBI, and tougher critics of the media. We need to reject salacious gossip (ex. the pee tape) pretending to be news. We will need to spend less time debating the existence of the Deep State and more time reigning it in.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
What Do You Do With the Past?
That’s me in back row of the photo of the old junior high school football team, with the dorky glasses. In an age of apologies and reparations it begs an answer: what do you do about the past?
It starts easy. The adult close to me is Mr. Hammer, the wood shop teacher. Yes, Mr. Hammer. His giggly name somehow still remains amusing to me, some 50 years later. He was a good teacher and coach, fair, even tempered, thought all the stuff we were doing mattered but not too much. I just learned from Google he was a Korean War vet (he never mentioned it) and passed away a few years ago after 24 years of teaching. I have no idea who the other coach is.
My obsession isn’t with the names anyway, it is with what happened to these people and our past. We have not kept in touch, and the last time I spoke with any of them would have been in 1978 when most of us graduated from high school. How many “did well” with life? How many are dead, or in jail, or homeless, or alcoholic? Any of them do something good for the world, maybe as a doctor or teacher? Do any of them ever wonder what happened to me?
Two boys in the front row were star players. They literally had star decals on their helmets so everyone knew, this being in an age before participation trophies. Google says one of them still lives in town but offers no clues as to what happened to him along the way, nothing on the other one. There’s another boy in the photo near the back I learned from Facebook is gay. I didn’t know him well in junior high school, but I wonder now how many of the other boys were gay. No one “came out” back then. We as a team would today be considered completely homophobic based on the language we used. Anyone who made a bad play or fumbled the ball or was even late to the huddle was a f*ggot. If you’re anywhere nearby our age group you also said that word. Everybody did.
But despite the language I am not sure we were homophobic, as we had as little idea what being gay was all about as we had then about heterosexual stuff, absent self-entertainment which likely worked the same way for everyone. This is probably the biggest change the internet brought to society. Kids stop being naive at age two now. I’m as certain the gay kid was hurt by what we all said as I am certain that he said those same words along with us. In 7th grade anything that made you stand out made you someone’s target.
After junior high, trying out for football at my high school meant being bullied by the varsity. If you were lucky they only stole your lunch and made you embarrass yourself singing to the group. Sometimes they took away our water on hot days (water during practice was rationed in this era, to toughen us up.) For others, it was caustic muscle creams smeared in your jock before practice. It went on after the coaches would mysteriously disappear during certain breaks. Adult teachers with clear responsibility to stop it, but who did nothing but encourage it, calling it initiation. I have no idea, some 50 years later, why I voluntarily participated in all this. I believe I was temporarily insane.
Very few guys quit the team, most just endured, some sought empty relief bullying others. I was in that last group, mercilessly teasing a poor kid weaker than me. I was cruel in a way I wish I hated then the way I hate it now. He was an easy target who I thought years ago was a way for me to feel better. I couldn’t beat up the varsity football team who humiliated me, so that kid was their surrogate. Nothing I have done before or after makes me more ashamed.
He’s in that picture, the kid who became the target of my bullying. It’s easier to write this if he has a name, so Ron, though of course that is not his real name which I do remember and cannot forget. We got along OK in junior high, friendly if not friends. But the high school football we went on to was struggle, not fun. The upperclassmen players bullied the younger kids like me endlessly, brutally at times.
I have not been again on that playing field in more than four decades yet I can point now to the exact spot on Google Maps where it all happened. The worst initiation the older kids had was making us fight each other. This usually took the form of whacking each other with tackling dummies, heavy canvas bags. If the big kids did not think we were fighting enthusiastically enough they would step in and continue the assault themselves. It was worse when the bags were wet.
One pointlessly humid Ohio day I was told to stand up and choose my opponent. Usually you picked a buddy with the unspoken understanding the two of you would take it easy on each other. I chose instead to fight Ron. Ron had stopped growing sooner than most of us, Ron had a good heart but wasn’t much of a fighter, Ron thought I was enough of his friend to take it easy. But I did not. Something broke inside me like a summer thunderstorm. When Ron went down I kept hitting him, right in the face with the bag, with the blood from his nose splattering to the point where even the upper class animals running the initiation stopped me. I was never made to fight again. Ron quit the team.
I didn’t stop. I said, with great encouragement from teammates, terrible things to Ron everyday at lunch. I made his life dark. He must have felt his stomach twist in horrible anticipation every day heading into the cafeteria. He tried to make peace with me despite I am sure not having a clue as to why I had become his predator but I refused to back down. The semester ended in exhaustion and I never played a team sport or trusted an authority figure again, my apolitical red pill moment. Ron sat somewhere else for lunch after Christmas break. I’ve had no contact with him since until I found him in that photo last night.
Google found him, too, I think. It looks like he’s a lawyer, made partner in his firm. He’s married. Seems to like to fish. The firm’s website lists a phone number that even now stares at me.
What do you do with the past? Do I call him, apologize, offer some sort of reparation, donate money to some anti-bullying group? Would he want that, would he accept that? Does he remember me, or was I just another forgettable part of high school that got discarded when he went on to his good college and his good law school? Does he live with what he can’t get past? Facebook says he has sons.
He must remember me, the efforts I made to hurt him had to have left some mark. What would he say to an apology? Would he, falsely but graciously accept whatever I said and get off the phone to tell his wife “Honey, you’ll never guess the odd call I had today…” over dinner? Would he listen to me a moment and then uncork decades of anger and resentment, telling me how I hurt him not only that day but forever, that these things don’t go away? Am I one of his ghosts as he is one of mine?
I talked to a psychiatrist friend, who explained the concept of amends used by Alcoholics Anonymous. Making amends is one of the last steps toward recovery, and is premised as “we may stop causing any more harm but that is not the same as repairing the damage we have already caused. We feel a man is unthinking when he says sobriety is enough.” I may have become a better man than I was on that damn football team, but I have done nothing to repair the damage I did.
You start amends by asking permission of the person you harmed. You acknowledge this is to help yourself, that you alone bear responsibility. My excuse – I bullied because I was bullied – is too easy for this task. Some things are always wrong and I should have known that, whether my society or my coaches said it was OK. It is as weak as my tormentors claiming the initiations were all part of toughening us up for the football season, and about building comradery as they too had once been humiliated as freshmen.
Amends demands I not elicit sympathy or make any excuses. I should ask for forgiveness, but not say I am sorry, no remorseful mumbling. If Ron is unable to forgive me, it is my burden. Some debts like that take a long, long time to repay, maybe until forever. You can’t rewrite the past.
The point of amends is asking my victim to help me. It is not about disguising my guilt as an apology. That is what separates amends from something like reparations, where it is the victim who benefits, often monetarily. There may be a place for that, but that place is not part of this old picture and the question about what do you do with the past that it screams at me.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Jack Teixeira and Security Clearances
Air National Guard leaker Jack Teixeira had one of the highest levels of security clearance. Over five million Americans, more than the population of Costa Rica, Ireland or New Zealand, hold some type of security clearance. Can we trust them? Is Teixeira an exception, or is the process never expected to work 100 percent of the time?
A security clearance is issued by a part of the U.S. Government (Department of Defense, CIA, the State Department…) and says the holder can be trusted to handle sensitive documents and duties. At the low end this may mean a contractor can enter the Navy Yard without a body search, or at the extreme means a person will assume a completely new identity, live abroad, and conduct clandestine actions on behalf of the U.S.
Government-wide there are three basic levels of clearance: Confidential, Secret, and Top Secret. There are formal definitions, but the basic idea is that the higher you go up the ladder, the more harm and damage disclosure would create. Added to this three-tiered system are many subcategories, including Sensitive But Unclassified, for well, unclassified things that are still sensitive, such as an applicant’s social security number, Law Enforcement Sensitive and the like. Top Secret is supplemented by Sensitive Compartmented Information (SCI), often used to denote information obtained from intelligence sources. There are also many, many flavors of Special Access Programs (SAP) that require both a very high level clearance and specific permission to access just that single project, such as a clandestine operation against Iran, or the identities of spies in Syria. The military has its own lexicon of classifications.
The clearance process is largely a variation on a single note: let’s look into what this person has done in his life prior to seeking a clearance, and then try to extrapolate that into what he will do once cleared. But because, like your mutual funds, past performance is no guarantee of future success, the process is inherently flawed.
Despite the wide variety of clearances available, the process of obtaining one is similar across the board. What changes is less the process of looking into someone’s life than the granularity of the look. Most everyone seeking a clearance begins at the same place, filling out Standard Form 86, Questionnaire for National Security Positions, form SF-86. The SF-86 is mainly a very detailed autobiography, the raw material that fuels the rest of the process. Young people filling out their first SF-86 invariably end up on the phone to mom, gathering old addresses they lived at as kids, birthdays of disconnected relatives, foreign countries visited on family trips and more, a lot more: the SF-86 runs some 129 pages. Some interesting perjury bait is near the end, almost silly questions such as “Have you ever engaged in an act of terrorism?” and a follow-up requiring you to describe, in one line, “The nature and reason for the terror activity.”
After a hundred pages of names and dates the SF-86 dips into the deal breakers, the questions that weed out quickly those who are unlikely to get very far in the clearance process. Applicants are asked to self-describe financial problems, debts, drug use, gambling, drinking, mental health issues, legal troubles, job firings, and more. Whether out of duty and honor, or more likely a thought process that the agency will find out anyway and lying is an automatic disqualification, most applicants do tell the truth and disqualify themselves.
Everyone who gets past the SF-86 has some standard checks run on them. Since U.S. Citizenship is the most basic and unwavering requirement for a clearance, every applicant’s claim to being an American is verified. Every applicant then gets a run through whatever databases and electronic records can be found. The goal is to verify quickly as much of the self-provided data and to skim off the low-hanging fruit. A serious arrest record, neck-deep financial problems, and the like will be easily found. Checks are also run through the various intelligence files (a National Agency Check) to make sure while you’re applying for a job at the State Department you are not on some secret list of bad guys over at CIA. For some low-level or short-term clearances, the process can stop here and a decision is made. The time period varies, but usually is a couple of months for a background-only clearance.
For higher level clearances, including Top Secret, a full spectrum investigation is required. An investigator will visit an applicant’s home town school teachers, his second-to-last-boss, his neighbors, his parents, and almost certainly the local police force and ask questions in person. As part of the clearance process, an applicant will sign the Mother of All Waivers, basically giving the government permission to do all this as intrusively as the government cares to do. This is old fashioned shoe leather police work, knocking on doors, eye balling people who say they knew the applicant, turning the skepticism meter up to 11. The investigator will ask each interviewee to keep quiet about the interview, but typically the applicant will get a hushed phone call or email from some old acquaintance saying the Feds just knocked. Many of the contract investigators at this level are retired FBI or Secret Service people and often will present their old ID to add some gravitas to the procedure. If an applicant lived abroad, the process is tasked out to the nearest U.S. Embassy. All this on-the-street work does not come cheap. A full background investigation can run $15-20,000.
For many agencies, including the CIA and NSA and likely for a guy like Teixeira, an additional step in the clearance process is the polygraph, the lie detector, the box. The federal government polygraphs about 70,000 people a year in connection with security clearances. What portion of the polygraph process that isn’t shrouded in movie drama is classified, but the basics are simple; even Mythbusters looked into it. The process is based on the belief that when one fibs one’s body involuntarily expresses stress in the form of higher blood pressure, changes in pulse, breathing, and perspiration rate. Those things can be precisely monitored. Did you ever steal anything? No? That’s a lie — see here, your heart rate went up X percent when you answered.
Some say that the presence of the polygraph machine itself may be mostly for show, and the real nuts and bolts of the process are actually just clever manipulation and interrogation techniques as old as dirt. An awful lot of information obtained via a polygraph has nothing to do with the needles and dials per se, but the applicant’s fear of them and belief that they “work.” Polygraphers are allowed considerable freedom in style, and some get more into role-playing than others. Often the applicant will self-incriminate.
Up to this point the clearance process has been mostly the aggregation of information. Along the way some applicants might be picked off, but most applicants for a clearance end up in adjudication. And in adjudication lies the core problem in the clearance process: it relies on human judgment.
The basics of an adjudication look at vulnerabilities, and at past examples of trusts kept or violated.
Vulnerabilities are easier to determine. People betray their country’s trust for money, sex/compromise, ego or ideology. People with loads of debt or a gambling problem are more susceptible to bribes. People with records of infidelity or a pattern of poor judgment might be lured into sexual encounters that could be used to compromise them. In the bad old days when most LGBT applicants were deeply closeted, this was used as a one-size-fits-all pseudo-reason to deny them employment. Ego is a tougher one to pin down, but persons who lack self-esteem or who want to play at being a “real spy” might be tempted to become “heroes” for the other side. Ideology is a growing issue as more and more hyphenated Americans seek government work and, needing qualified language employees, more and more are recruited by the government. Will a Chinese-American’s loyalty fall to her new home or to the old country where grandma still resides?
Back in the good old days, when qualification for high level positions required one to be male, pale and Yale, these things were less of concern. Fathers recruited sons, professors noted promising students, and no one thought much about the messy range of people now sought for government work. Need fluent Farsi speakers or a surge of network engineers? You’re going to have to recruit farther afield than the country club. Agencies who used to toss back into the pond pretty much anyone without a pristine background now face unfilled critical positions. So, standards change, always have changed, and will continue to change. Security clearances just work that way.
If vulnerabilities seem sometimes ambiguous to adjudicate, the next category, trust, is actually much harder. Persons who have kept trusts extended to them, not been fired, not broken laws, paid their bills, saw to their responsibilities, are in the Nice category. Those who didn’t end up over in Naughty. The adjudication part becomes important because very few people are perfect, and very few are really bad. Most everyone falls in the middle, and so agencies must make judgment calls. The goal is to come up with a picture of the person, and then project that picture forward into what they might be like on the job. Like any human-powered process that attempts to predict the future, it is flawed. That’s how Jack Teixeira (Ed Snowden, Chelsea Manning, et al) ended up with a Top Secret security clearance.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Four Tips for My New Undergrad Classmates
I am now officially old, at least old enough to take advantage of a program at my local public university that allows me, an old person, to audit a class alongside undergrads gratis. In theory I’m supposed to add my life experiences to their learning, and they are to see in me the pleasure of learning for its own sake. I am supposed to benefit from being around their youthful vigor and all. We’ll see about all that. But I do now have a plausible explanation for the police as to why I am shirtless at a foam party alongside “adults” more than four decades my junior — I need to give back. Cross-generational communication being what it is I am treading lightly on passing out life advice (“Foam is really slippery and you lose flexibility as you age”) and felt it better to write down what I wish I could say to them between classes.
1. Go to class. Whether or not your professor takes attendance, go to class. You got out of the habit during your Zoom School days, I know. But professors have the habit of saying interesting and useful things in class, so go listen to them. If you’re concerned about grades, listening to what a professor choses to emphasize out of the reading (and do the reading) will be a big hint as to what will be emphasized on the test. Especially go to the first class and write down everything the professor says. Much of it won’t make sense, because it is about a subject you have not yet studied but months from now when you’re staring down the barrel of a final exam those ideas important enough to mention on day one will likely be a part of it. Sit up front, show some interest, ask an intelligent question or two (never “Is this gonna be on the test?” or “why do we have to study this stuff?”) and you may even develop an intellectual bond with the instructor.
2. Leave the computer in your dorm. Sitting in the back of the classroom, I look out on to a sea of Insta and other social media, Amazon pages, and the like, with sometimes (for the good students) half the small screen devoted to a Word document for notes. It is unfair to place a catalog screen designed by award-winning psychologists to attract you in competition with a Teaching Assistant in front of a class for the first time since 6th grade book reports. Unless you need to actually compute things, leave the devices back in the dorm. Take notes by hand, on paper. You’ll retain more and stay connected with the material better.
3. Learn to take notes. This is a life skill, not a college skill, so best to learn it. Notes help you remember what was said, to reconstruct the argument the professor made, to mark down what was important, to compare what showed up both in the reading and in class (it’s going to matter if it is in both places) and to help you pay attention if yes, it sometimes gets boring. Ideally your notes should resemble a term paper (and yes you can learn to write better term papers by learning to take better notes) with some sort of topic sentence followed by examples followed by a conclusion. Most times the professor will help you with this, laying out an outline of sorts on slides or on the board. Unless you’ve got a good reason not to, your notes should at the end of class look a lot like what the prof wrote — I. Causes of WWII followed by a, b, and c, listing causes such as c) Japan’s need for resources, esp. oil and rubber, followed by the conclusions the war was caused by runaway capitalism or whatever. If your notes are incomplete — “something about Germany” — you need more details. If you are always racing to keep up you may need less detail on paper and to spend more time just listening; you’re not a stenographer. Notes are not transcripts of the lecture, they are something akin to an x-ray view of the lecture. If all else fails, make an appointment to see the prof, explain your note taking problem, and ask (very politely, profs can be possessive) to see his lecture notes if possible. Compare yours to his and adjust accordingly.
4. Learn to manage time. This is also life skill, not a college skill, so best to learn it. Most high school teachers managed your time for you. They broke things down into class-size packages, lightened up a bit for Homecoming Weekend, and incessantly counted down for you to the next test. If you had to write a paper, many times they’d break that process down, demanding a reading list one Monday, an outline the next week, a rough draft by week four, etc. Rarely so in college. The syllabus issued on day one might mention a 10 page paper is due at week 14 and leave it at that. Same for reading; that fat stack of books in front of you has to be read between August and Christmas break, so you have plenty of time. You actually do not. Learn to work backwards from deadlines to day one of class, maybe even make a little calendar for yourself so you know by week three you should have some idea of a reading list for your paper, etc. This is your guide, so if by week four you do not have an outline that should answer your question about whether you can afford to stay up all night for Homecoming raves or not. Think of it partly as a bank. If you have enough hours in and are on schedule you can afford to spend a little more time away. But if you are in to deficit spending on time… think “clean as you go.” Anybody who has worked at a restaurant knows you can’t go home at night until everything is cleaned for the next day. If you clean as you go throughout the night, it is easier than starting at 2 am. It is even better to not make a mess in the first place.
Everything else: Don’t talk to the police without a lawyer present. Don’t cheat. Think before you speak. Sometimes don’t speak. Be generous if you have resources your classmates do not have. Drugs are not for stupid people. And the guy who usually sits in seat 13E, I think you’re wasting your time. And I saw the girl in front of you waiting after class for someone else, sorry, man. Maybe see you two at the foam party?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Japan in the Slow Lane
If you are one of the handful of people who really miss 2020, you’d do well to head to Japan as I did, a land where time stood still.
Everyone here (and by that I mean every single person and most children) wears a mask against the seemingly omnivorous threat of Covid. Yes, it is still here, or so we are told even before arrival where to obtain an e-visa one has to upload proof of vaccination and answer a strict list of questions, any one of which could end your trip plans should you answer “yes.”
The law (or is it social pressure? No one needed to do much to encourage Japanese people to be somehow even cleaner, and there are no Karen-sans here, they’d have nothing to yell about) requires masks everywhere all the time indoors, but almost everyone wears one inside and outside. Businesses are prepared to lend you a paper version should you have forgotten yours (no one has yet) and character-decorated cloth types go for about $10 in drug stores and the kind of random products stores Japan’s current economy seems based on.
In addition to masking, signs everywhere admonish you to keep social distance in public places. It makes sense in waiting areas where every other seat is blocked off with a sign but less so on the trains and subways where a full-body rub seems to come with the ticket. That it makes no sense makes no sense, except when you realize sensical change is not what Japan is about.
The joke is in 1985 Japan looked like the year 2000, the future. Today, on a visit in 2023, Japan still looks like the year 2000. Not much changed along the journey. If someone remakes Bladerunner the future it would seem is based on a proliferation of escalators and expansive seating/waiting areas in bank lobbies. Those building-sized video screens the L.A. of the future featured in Bladerunner no longer serve up hot geisha girl images but a silver haired couple video chatting with their stock advisor about holding instead of selling for another month.
Japan is getting too old. The child crisis which began in the go-go 1980s when having kids would have interfered with making money and taking expensive foreign trips has come to fruition, or rather anti-fruition: Japan is on the path to extinction. A third of Japanese people are over 60, making Japan home to the oldest population in the world, after somehow Monaco. It is seeing fewer births than ever before. By 2050, it could lose a fifth of its current population. That figure is closer to a reality than an estimate.
You would think such a dire situation would provoke change and in almost any other nation on earth you’d be right. But Japan does not like change and so there are no campaigns (as in Singapore) to encourage marriage, and follow-on campaigns to encourage having children. Day care is still as expensive as it is to come by, and “having someone else raise your kids” is still a stigma. Working mothers are seen as desperate (their husbands obviously a failure) or selfish.
The most obvious answer, immigration, is shunned. The fear of foreigners runs deep in Japan. “Why not admit some foreign IT people? Some senior care nurses from the Philippines?” I asked one educated Japanese. “Well, they’d stay here and this would slowly not be Japan anymore.” Barely three percent of the country’s population is foreign-born, compared to over a quarter of Americans. Thoughts on race are common enough you’d hate to label some gigantic portion of the country racists. It is the way it is, most would say, shikatta ga nai, nothing can be done. Japan does not care for change.
Covid is in a way a made-for-Japan disease, a solid excuse to slam the doors to the country shut without heaps of international scorn. At the height of the Covid mania, even foreigners with permanent residence in Japan (home, car, job, etc.) who were unlucky enough to be caught outside the country were barred from reentry for weeks. Pressure finally caused the Japanese government to reluctantly yield to reality.
So what is being done about the childless society problem? Japan is making old people more comfortable in their isolation. Where it once resisted necessary accommodations for handicapped people, escalators and elevators are now being retrofitted. Handicapped people are “others” in Japanese society and despite international pressures there was little drive to open the country up for them. The elderly, Japanese through and through, are different in a place where age is revered, even if there are fewer around to do the revering. Maybe robots will fill that gap.
You want accomodation in the meantime? In Tokyo street crossings have countdown lights so you know how much time you have to get across, plus beeping sounds and timers. There are more public toilets and benches. All the buses kneel and the new type taxis can easily accommodate walkers and wheelchairs.
To keep old people busy, there are all manner of make-work jobs waving traffic through an intersection or pointing out empty parking spots. It is in the end such a Japanese way of dealing with a problem, making massive yet superficial changes while ignoring the fundamental end-of-days scenario unfolding. If the band playing as the Titanic sunk wasn’t Japanese they should have been.
But what about _____? Fill in the blank with any current American problem and Japan seems like heaven. Homelessness? You see a few sad winos in train stations but they are silent and neat with their belongings. Crime? As close to zero as possible given 12 million people live in tight proximity to one another. Drugs? See crime, above. You can never write Japan off, but you do need to look below the surface to understand her.
The thing is people seem to like it this way. Japan has had almost no social unrest in modern times, and it has as close to a one party system in national politics as you can get without looking at that of its neighbor in North Korea.
A writer for the BBC in an otherwise thoughtful article on Japan explained that the party in power is known as the “concrete” party not only for their basic political strengths but because of their ability to devolve make-work construction projects out to the smallest voting districts, dropping in from Tokyo jobs and money accordingly.
With Japan’s non-proportional representational system, those small districts carry as much punch at the voting booth as do areas many times their population in major cities. Concrete buys votes, you see it everywhere with unnecessary bridges and tunnels, and riverbanks lined with sturdy walls that would hold back a deluge if one were suddenly to appear in the middle of nowhere. Concrete is a visible symbol of power and as it dries solid, a symbol of unchange. This is going nowhere, it’s big and heavy say the retaining walls.
But perhaps the symbology is wrong, and the solidity of concrete largess from the central party is not the right interpretation. What if we see the concrete as nothing more than superficial? Most of it poured is designed to hold back water, to keep nature in its place. But concrete works on one time scale and nature another. What if the concrete was just there to mask over a more fundamental problem, like providing extra seating areas instead of addressing the child problem?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Fixing the Security Clearance Process
How do you fix the security clearance process?
The security clearance process is not a real-time, ongoing endeavor. Instead, someone applies for a government or contractor job that requires a clearance, some sort of background check is done, and a clearance decision is adjudicated. Next case, please. Most clearances are only reviewed every five years and then investigators lean heavily on anything new or changed, and especially on the subject’s performance those five years. Even agencies that use the polygraph employ an abbreviated version of the test when renewing a security clearance. There is no 365/24/7 continuous reevaluation process. Of course records checks are done, a felony arrest properly documented might pop up, and many agencies yearly run standard credit checks and conduct random drug tests. But overall, absent something self-reported or too obvious to ignore, a clearance rides for five years, sometimes literally with no questions asked. How could it be otherwise with over five million active cleared Americans strung across the globe?
It doesn’t always work out. As happened following the process’ failure with people like Edward Snowden, Chelsea Manning, now with Air National Guardsman Jack Teixeira, much noise will be generated about “doing something” to fix the clearance process. But what?
Dramatically increasing the number and scope of on-the-street investigations as part of background checks will spiral wildly into crazy expenses and even longer waiting periods to complete clearances. It could bring the hiring process to its knees, and spawn more and more “temporary clearances,” a self-defeating act. This all with no assurance of better results due to both limitations on the whole concept (past behavior in a wholly different environment like high school may not be indicative of future intent under real-world pressures, as in the Teixeira and Manning cases) or simply human judgment errors. If done properly, such changes might even catch a few of the Teixeira’s out there, but to be honest, there are few Teixeira’s out there to begin with and most of them will be sending up obvious danger signals at work for a long time if anyone would pay attention before a clearance review catches up.
In the interest of never letting a good crisis go to waste, the Biden Administration is now reportedly planning to increase its surveillance of social media and online chatrooms, as if not understanding the internet is a very big place. It is certain that many more in government will call for more aggressive “monitoring” of employees, having them sign away basically all of their civil rights in return for a job. The government will turn its vast intelligence gathering tools further inward and end up pointlessly compiling CIA officers’ credit card receipts from Applebee’s, the web browsing habits of diplomats’ children, and so forth. In truth, a lot of that is probably already going on now anyway (the CIA and other intel agencies have had for years robust counterintelligence operations designed specifically to spy on their own spies.) But you just can’t see into a person’s head, or his heart, via his bank account.
In addition to a huge waste of money and resources, these measures will inevitably lead to more mistrust and paranoia inside government. Lack of sharing (the CIA believes things it shares with State get leaked, the Army won’t give things away to the Navy, the FBI hoards info so as to not let another part of the Department of Justice get credit for a bust, the NSA doesn’t trust anyone, and so forth) is already an issue among agencies, and even inside of agencies, and helped pave the way for 9/11.
In addition, handing even more power to security teams will also not work well in the long run. Hyper-scrutiny will no doubt discourage more decent people from seeking government work, unwilling to throw their lives open for a job if they have prospects elsewhere. The Red Scare of the 1950s, and the less-known Lavender Scares, when labeling someone gay inside government would see him fired, show what happens when security holds too many cards. James Jesus Angleton’s paranoid mole hunting at CIA, which ruined many careers, is still a sore point at Langley. No, unleashing the bullies won’t help.
As a wise man once said, cut through all the lies and there it is, right in front of you. The only answer to the clearance problem is to simply require fewer cleared people inside government.
This will require the tsunami of document classification to be dammed. In FY2009 alone, 54 million U.S. Government documents were classified. Every one of those required cleared authors and editors, system administrators and database technicians, security personnel, and electronic repair persons. Even the cafeteria personnel who fed them lunch needed some sort of vetting.
With fewer people to clear because there is less classified material to begin with, always-limited resources can be better focused. Better background checks can be done. Corners need not be cut, and unqualified people would not be issued clearances out of necessity. Processing time would be reduced. Human judgment, always the weak link, could be applied more slowly and more deliberately, with more checks and balances involved.
More monitoring won’t help and will very likely hurt. In a challenge as inherently flawed as the clearance process, the only way forward is less, not more.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Embassy Evacuation: Sudan
The American Embassy in Sudan is closed. Fierce fighting between two warring generals has led to the swift deterioration of conditions in the capital and the U.S. appears to be preparing to evacuate American staff, possibly some private American citizens. What happens when an embassy is evacuated? What happens to private Americans in-country?
The decision to close an embassy rises to the Secretary of State for approval. An embassy evacuation really is a virtual chess match that some State Department critics say is as much about political signals as it is about the safety of America’s diplomats. In cases where the United States decides to support the host government or in the case of Sudan, one faction, an embassy closure cuts off most interaction and will eliminate on-the-ground reporting. An evacuation can trigger the fall of the host government based on the perceived loss of American confidence, or may encourage rebels to attack private American citizens seen as less-protected. In that one point of having an embassy at all is symbolism, closure is without a doubt a political act. Reopening the embassy brings up all those factors in reverse.
The mechanics of closing an embassy follow an established process, with only the time line varying.
All embassies have standing evacuation procedures, called the Emergency Action Plan, that are updated regularly. A key component is the highly-classified “trip wires,” designated decision points. If the rebels advance past the river, take steps A-C. If the host government military is deserting, implement steps D and E, and so forth.
Early actions include moving embassy dependents out of the country via commercial flights. The embassy in Sudan is designated a partially accompanied post. This means that while some family members may be permitted to accompany U.S. government employees to the post, there are restrictions on who can accompany them and for how long. In addition, incoming staff can be held in Washington and existing tours cut short. Non-essential official personnel (for example, the trade attaché, who won’t be doing much business in the midst of coup) are flown out. A “Do Not Travel” public advisory (note item 8, “prepare a will”) must be issued by the State Department to private American citizens under the “No Double Standard” rule. This grew out of the 1988 Lockerbie bombing of a Pan Am flight, where inside threat info was made available to embassy families but kept from the general public.
These embassy draw-down steps are seen as low-cost moves, both because they use commercial transportation, and because they usually attract minimal public attention both inside and outside the host country.
The next steps typically involve the destruction of classified materials. The flood of sensitive documents stolen from the American embassy in Tehran in 1979 remains a sore point inside State even today. Classified materials include mountains of paper that need to be shredded, pulped or burnt, as well as electronics, weapons, encryption gear, and hard drives that must be physically destroyed. Embassies estimate how many linear feet of classified paper they have on hand and the destruction process begins in time (one hopes) to destroy it all.
Somewhere in the midst of all this, the Marines come into the picture. Embassies are guarded only by a small, lightly armed detachment of Marines. As part of their standard Special Operation Capable (SOC) designation, larger Marine units train with their SEAL components for the reinforcement and evacuation of embassies. They maintain libraries of overhead imagery and blueprints of diplomatic facilities to aid in planning. Fully combat-equipped Marines can be brought into the embassy, either stealthily to avoid inflaming a tense situation, or very overtly to send a message to troublemakers to back off. Long experience keeps Marine assets handy to the Middle East and Africa. Any evacuation out of Sudan will flow from the large U.S. military facility nearby in Djibouti, and so the Pentagon is moving more troops to the African nation to prepare for a possible evacuation of staff in Sudan. The U.S. will often coordinate its evacuation with other nations’, with friendlies such as Canada, and in places where another nation’s influence is strong, such as in Francophone Africa.
What is done to support private American citizens varies considerably (there are some 19,000 in Sudan.) The rule of thumb is if a commercial means of departure exists, private citizens must utilize it, sometimes with the assistance of the embassy. Loans for tickets can be made, convoys organized, and so forth. In cases where the major airlines refuse to fly but the airport is still usable, the State Department can arrange charters. Right now the international airport in Khartoum is the target of heavy shelling, with destroyed planes on the tarmac. Sudan’s air space is also closed.
In extreme cases only (Sudan may become such a case) the Marines conduct a Noncombatant Evacuation Order (NEO) to pull citizens out of the country using military assets. At times Americans are simply told to “shelter in place” and ride out a crisis. State will ask a neutral embassy in-country, such as the Swiss, to look after them to the extent possible if our own embassy closes.
The current guidance issued to private Americans in Sudan is dire: “U.S. citizens are strongly advised to remain indoors, shelter in place until further notice, and avoid travel to the U.S. embassy. There continues to be ongoing fighting, gunfire, and security forces activity. There have also been reports of assaults, home invasions, and looting. The U.S. embassy remains under a shelter in place order and cannot provide emergency consular services. Due to the uncertain security situation in Khartoum and closure of the airport, it is not currently safe to undertake a U.S. government-coordinated evacuation of private U.S. citizens.”
Almost always left out of the mix are the embassy local staff, the cooks, drivers, and translators. Rarely are they evacuated, and are usually left to make their own way in what can be a very dangerous environment for someone seen as an American collaborator. Some have compared this to the poor treatment military translators from Iraq and Afghanistan received trying to secure visas to the United States.
Images of an empty embassy are not what the American government looks forward to seeing spreading across social media. The pieces are in place in Sudan, waiting for the situation on the ground to dictate what happens next.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Why Hasn’t the U.S. Arrested WaPo Journalist for Publishing Classified Documents?
Why hasn’t the U.S. government arrested WaPo journalist Shane Harris for publishing highly classified documents related to the war in Ukraine and U.S. spying on its allies? The ones leaked by Air national Guardsman Jack Teixeira?
The documents contain significant revelations. Among other secrets, they show the CIA recruited human agents privy to the closed-door conversations of world leaders, reveal eavesdropping that shows a Russian mercenary outfit tried to acquire weapons from NATO ally Turkey to use against Ukraine, explained what kind of satellite imagery the United States uses to track Russian forces, and made clear U.S. and NATO have special forces on the ground inside Ukraine.
Why Shane Harris is not in jail has a long history, and a complex answer. In 1971, Daniel Ellsberg leaked the Pentagon Papers, a secret U.S. government-written history of the Vietnam War, to the New York Times. No one had ever published such classified documents before, and reporters at the Times feared they would go to jail under the Espionage Act (the same law under which Jack Teixeira is charged.) A federal court ordered the Times to cease publication after initial excerpts were printed, the first time in U.S. history a federal judge censored a newspaper via prior restraint. In the end, the Supreme Court reversed the lower courts and handed down a victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ever since media have published national security secrets as they found them.
Law professor Steve Vladeck points out “although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause. The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”
The Supreme Court left the door open for the prosecution of journalists who publish classified documents by focusing narrowly on prohibiting prior restraint. Politics and public opinion, not law, has since kept the feds exercising discretion in not prosecuting the press, a delicate dance around an 800-pound gorilla loose in the halls of democracy.
The closest an American journalist ever came to being thrown in jail was in 2014, when the Obama administration subpoenaed New York Times reporter James Risen. They then accused former CIA officer Jeffrey Sterling of passing classified information to Risen. After a lower court ordered Risen to testify and disclose his source under threat of jail, the Supreme Court turned down his appeal, siding with the government in a confrontation between a national security prosecution and an infringement of press freedom. The Supreme Court refused to consider whether the First Amendment implied a “reporter’s privilege,” an undocumented protection beneath the handful of words in the Free Press Clause.
In the end, the Obama administration, fearful of public opinion, punted on Risen and set precedent extra-judicially. Waving a patriotic flag over a messy situation, then-attorney general Eric Holder announced that “no reporter who is doing his job is going to go to jail.” Risen wasn’t called to testify and wasn’t punished for publishing classified material, even as the alleged leaker, Jeffrey Sterling, disappeared into prison for three and a half years. To avoid creating a precedent that might have granted some form of reporter’s privilege under the Constitution, the government set a different precedent and stepped away from the fight. That’s why Shane Harris of the Washington Post isn’t under arrest right now. For traditional media American journalists like Shane Harris, the Risen case was a turning point.
Meanwhile Wikileaks’ Julian Assange is under arrest, rotting away in his fifth year in a UK prison fighting extradition to the United States. There are complex legal questions to be answered about who is a journalist and what is publishing in the digital world — is Assange himself a journalist like Risen or a source for journalists like Sterling was alleged to be? There is no debate over whether James Risen is a journalist and whether a book is publishing. Glenn Greenwald has written about and published online classified documents given to him by Edward Snowden, and has never been challenged by the government as a journalist or publisher.
Assange isn’t an American, so he is vulnerable. He is unpopular, drawn into America’s 21st-century Red Scare for revealing the DNC emails. He has written nothing alongside the primary source documents on Wikileaks, has apparently done little curating or culling, and has redacted little. Publishing for him consists of uploading what has been supplied. The government would argue Assange is not entitled to First Amendment protections simply by claiming that a mouse click and some web code isn’t publishing and Assange isn’t a journalist. The simplest interpretation of 18 U.S.C. § 793(e) of the Espionage Act, that Assange willfully transmitted information relating to national defense without authorization, would apply. He would be guilty, same as the other canaries in the deep mine shaft of Washington before him, no messy balancing questions to be addressed. And with that, a unique form of online primary source journalism would be made extinct.
And that really, really matters. Wikileaks sidestepped the restraints of traditional journalism to bring the raw material of history to the people. Never mind whether or not a court determined disclosure of secret NSA programs which spied on Americans disclosure was truly in the public interest. Never mind the New York Times gets a phone call from the President and decides not to publish something. Never mind how senior government officials are allowed to selectively leak information helpful to themselves. Never mind what parts of an anonymous technical disclosure a reporter understood well enough to write about, here are the cables, the memos, the emails, the archives themselves. Others can write summaries and interpretations if they wish (and nearly every mainstream media outlet has used Wikileaks to do that, some even while calling Assange and his sources traitors), or you as an individual can simply read the stuff yourself and make up your own damn mind about what the government is doing. Fact checks? There are the facts themselves in front of you. That is the root of an informed public, through a set of tools and freedoms never before available until the internet created them.
Allowing these new tools to be broken over the meaning of the words journalist and publishing will stifle all of what’s left of the press. If Assange becomes the first successful prosecution of a third party under the Espionage Act, the government can then turn that precedent into a weapon to aggressively attack the media’s role in national security leaks. Is a reporter, for example, publishing a Signal number in fact soliciting people to commit national security felonies? Will media employees have to weigh for themselves the potential public interest, hoping to avoid prosecution if they differ from the government’s opinion? The Assange case may prove to be the topper in a long-running war of attrition against free speech.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Jack Teixeira, Leaks, and a Matter of Trust
Despite all the precautions and double-checks, at some level it ends up a matter of trust. And in the case of Air National Guardsman Jack Teixeira, much of that trust was violated. Why couldn’t the military trust him? Why do we have to trust him?
The charging documents against Jack Teixeira, 21-year-old going on 14-year-old airman first class who is accused of leaking classified documents, indicate that he was granted a top-secret security clearance in 2021, which was required for his job as a computer network technician in the Massachusetts Air National Guard. While that may sound like an exceptional degree of access for such a junior service member, having top secret/SCI (sensitive compartmented information) clearance in that kind of job is standard. Other recent celebrity leakers were of a similar age and experience; NSA leaker Reality Winner was arrested at age 26. Edward Snowden did his leaking from the NSA and CIA in his early thirties, and Chelsea Manning was only 22 when she exposed massive amounts of State Department and U.S. military data via Wikileaks. With the exception of Winner, all worked as network engineers of some sort, sitting at the electronic nexus between the producers of intelligence and the consumers. There is no place elsewhere on the network which offers greater visibility. Think of how much water a plumber watches pass by as he fixes your pipes.
Though each leaker had all the requisite background checks, at their young ages there wasn’t much background to check. Teixeira joined the military at age 20 and so, like Manning and others, his suitability for a clearance was based mostly on what kind of kid he was in high school. It is unclear what a better clearance system would look like, but it is equally clear the current one has some holes in it. Right now things are based mostly on a matter of trust.
Teixeira violated the trust put in him in a number of ways, the most significant was the actual leaking of highly classified documents. The manner in which he appears to have obtained the documents, however, suggests other steps of breach of trust along the way. The documents as they appeared online on that Discord gaming and chat server appear to be photographs of classified documents. This makes sense; the military networks are physically isolated from the outside world and so electronic outloading secrets is near impossible. If a classified document is physically printed, as in the case of the Reality Winner leaks, a secret source code is surreptitiously embedded and can be traced back to the printer. In both Manning’s and Snowden’s cases some sort of storage device was illegally brought into the secure area, in Manning’s case a read/writable CD-ROM. What Snowden used has never been publicly disclosed though Oliver Stone’s film Snowden postulates it was some sort of media smuggled in and out via a Rubik’s Cube. Teixeira seems to have acquired classified documents printed by someone else and taken cell phone photos of them, either at work or, based on the daily detritus in the frames, at home. Teixeira was trusted not to bring a phone into his secured area and not to take documents out. He violated these trusts to try impress some online friends with the level of access he had.
Here things are on more traditional ground. Standard spy tradecraft says someone will betray their country for one or more of a fairly standard set of reasons, MICE: money, ideology, compromise and ego, with the kid Teixeira solidly on the square marked “ego.” It’s easy to screen out the drunks and gamblers and bankrupt, harder to figure out who is doing it for themselves.
But what other matters of trust were breached in the short saga of Jack Teixeira? The MSM soiled itself once again, proving to be more a tool of the state rather than a way to inform the people about what their government is up to. Most of the MSM joined with online pundits in first claiming the Teixeira documents were fakes, or at least grossly altered. When the story first appeared Reuters claimed, based on anonymous sources, that Russia was behind it. When the documents’ veracity became too obvious to ignore, the MSM switched over into claiming whatever the documents said, it was not very important, just things everyone sort of already knew (they did the same with the Snowden info.) Then despite the documents being of no great importance, when instructed from the White House briefing podium that the documents do not belong on the front pages of American newspapers, the documents were taken off line by the MSM and replaced with blurred images. Based on publicly available information, the New York Times and Washington Post tracked down the leaker before the FBI did, practically outing him on page one for the Feds. The trust between the press and its role in a democracy, and the people, was treated with the same callousness as the trust between Teixeira and the military.
As for other matters of trust, the Teixeira documents show that post-Snowden the U.S. still spies on its allies. Snowden revealed American spying in Western Europe, for example, was down to the level of listening in on world leaders’ personal cell phones, and that in Asia the entire Japanese phone system was compromised. Teixeira reveals the U.S. listens in on Cabinet-level internal discussions in South Korea, and on high-level deliberations in Egypt (who, speaking of matters of trust) appeared to be planning on selling arms to Russia while at the same time being the second largest recipient of U.S. foreign aid. The U.S. also listened in on Jordan’s Crown Prince Hussein and of course ally Ukraine. There was no trust despite public pronouncements of common goals and joint efforts.
But the biggest breach of trust revealed by the Teixeira documents is between the U.S. government and the people. The leaked documents show despite claims to the contrary, there are American (special) forces on the ground in Ukraine, catching the president in a solid lie. Other NATO forces have military personnel on the ground as well, dramatically risking wider conflict even as the president begs the American people to believe all that the U.S. is doing is passively supplying weapons to Ukraine. We also learn that any pronouncements of optimism that Ukraine may force back its Russian invaders cannot be trusted; the documents show U.S. intelligence assesses the much-vaunted spring counteroffensive by Ukraine will likely fail, and that the war writ large will continue into 2024. Not only does this show administration claims of progress to be false, it raises the possibility deeper American involvement will be necessary and likely.
It is a familiar story. The sum of the Manning leaks showed the American government could not be trusted to tell the truth about progress in the Iraq and Afghan wars (echoing the Daniel Ellsberg leaks about Vietnam known as the Pentagon Papers.) The sum of the Snowden leaks was to show the American government could not be trusted when it claimed to not spy domestically on its own citizens, or on its closest allies abroad. It becomes a sad state of affairs where we the people end up trusting leakers, people by definition untrustworthy, to accurately and completely tell us what our own government is doing behind the always happy public announcements. If the leaked documents matched the public statements there would be nothing to say, indeed, no point in leaking, for the adolescent dork or the self-styled crusader. But it never works that way.
So when we ask why we cannot trust kids like Jack Teixeira to follow the rules and earn the trust granted them, we need to look broader, at a military-government system that pretends to be based on trust while lying its pants off. That’s how Teixeira probably grew up seeing things, you can trust me.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
I’m Disgusted with the Trump Indictment
The sheer pleasure ordinary Democrats, never mind MSM personnel, got from seeing Donald Trump in court was disgusting. The “Ah, jeez, why not?” reaction when it was announced he would not be paraded as a captured curiosity, a circus freak, through a perp walk. The t-shirts that wouldn’t be made out of his mug shot, all the disappointment leavened with the glee that years of investigations finally yielded Trump in court facing criminal charges, the fruition of #TheResistance. To hear MSNBC, you’d think we were days away from the Orange Man being thrown into a van with no windows for his last ride upstate, the Orange tan and orange jumpsuit, with Orange is the New Black jokes echoing behind him, the last things he hears before being violated in the prison showers while multitudes cheer.
I’d seen all this before, in post-military dictatorship Korea where prosecuting one’s political enemies is a popular blood sport. Former President Roh Moo-hyun faced corruption allegations after leaving office in 2008, but he died by suicide before he could face trial. Former President Park Geun-hye was impeached and removed from office in 2017, and she was subsequently sentenced to 25 years in prison on charges of bribery and abuse of power. Former Presidents Kim Dae-jung and Kim Young-sam were investigated for corruption after leaving office. Overall, whether a former South Korean president goes to jail after their term depends on various factors, occasionally such as the evidence against them, and more significantly, the political climate surrounding them. That’s no rule of law, it is revenge. That’s the new America you’re cheering for?
And yet for all the schadenfreude turned up to 11, we’re left staring blankly at the TV and asking: is this all there is? After eight years of intense judicial and media scrutiny, after two impeachments, the January 6 coven of elders committee, Russiagate and even after the state of New York and the House finally did get his tax documents, this is it? The Teflon Don is going down over… falsification of business records? Never mind the 34 counts, that’s just stacking, an old DA trick to turn one “crime” into many and make things look more dramatic. It just seem impossible that after all this there is no debt to Putin, no tax scam, no KGB handler, just a bookkeeping error. And spare us the “Al Capone went to jail over tax returns.” Capone was a known mobster, a murderer, a man who left a long string of broken bodies alongside his wholly criminal business (and he only served eight years.) Trump may have committed a bookkeeping error. He’ll pay a fine at worst.
When you blow away the smoke, Trump is charged with only one minor crime. That stems from the allegation that money Trump paid to his lawyer Michael Cohen (continuing the call him a “fixer” just prolongs the awful Godfather references and is sooooo 2021) to in turn legally buy silence from Stormy Daniels, and for Karen McDougal’s and other stories. Trump supposedly purposely mislabeled this legally spent money as “legal fees.” The indictment instead claims it a violation of business records law because the primary purpose was to influence an election. The supposition by the DA that that was true allowed him to upgrade a misdemeanor, false business records, into multiple felony accusations. Backing all this up is the word of disbarred felon Michael Cohen, and former National Inquirer honcho David Pecker (you just can’t make this stuff up, folks) both of whom are going to swear it is all true. That Pecker supposedly was granted immunity to testify and Cohen himself has multiple law suits and a huge chip on his shoulder pending against Trump has nothing to do with nuthin’.
The problem is DA Alvin Bragg (who actually ran for his office on the promise of prosecuting Trump for… something… and is now paying off his promise to his backers) has to win the case, and that is going to be as legally tough as the case itself is legally soft.
In short, the DA has to prove a crime not even charged (the unspecified campaign finance laws, or maybe something to do with taxes, the so-called “core crime”), show a misdemeanor for everyone else is actually a felony if you’re Trump, demonstrate Trump’s criminal state of mind when this all happened (intent to defraud… who? The Trump Organization?) and do all that based primarily on the testimony of Michael Cohen and a pseudo-journalist named Pecker. Otherwise, Trump is acquitted. And while the news is chock full of articles on the threat to our democracy if Trump is found guilty, no one has been saying much about how he will be empowered if he wins. It is said if you go after the king, you should not miss.There is nothing in this case which will stop Trump from running for president, even if somehow found guilty or even serving time. His affair with Stormy, which may be offensive to some voters, has sadly been part of the public conversation around Trump for years. If the standards being applied in New York hold, then while this is the first indictment of a former president it will not be the last. Every local prosecutor in the country will now feel that he has a green light to criminally investigate and prosecute presidents after they leave office (remember Jim Garrison and the JFK assassination.) Perhaps over the Hunter Biden case?Could things get to the point where the “rule of law” misinterpreted as a “rule of revenge” means a Republican candidate will need to stay out of blue states to avoid prosecution and vice-versa for Dems? Trump went to New York and surrendered himself voluntarily; imagine if he had stayed in Florida and fought any extradition attempt to force him to Manhattan. Democrats salivating over the charges against Trump will feel differently when a prominent Dem ends up on the receiving end of a similar effort by any of the thousands of prosecutors elected to local office, eager to make their bones by taking down a president of the other party. Now imagine an ageing Joe Biden a virtual prisoner of a Democratic safehouse in Delaware.It is easy to brush this off as exaggeration, but Trump’s opponents react to his provocations and grandstanding by escalating the erosion of legal norms (see the Mueller investigation, and the impeachments.) Ask Mitt Romney, who said “The prosecutor’s overreach sets a dangerous precedent for criminalizing political opponents and damages the public’s faith in our justice system.” And don’t forget Alvin Bragg’s predecessor had almost a year to bring this case after Trump left office, but did not do so, and the Department of Justice also declined. Historians will call this all the Bragg Rule.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Clarence Thomas Takes One for the Court
Did Clarence Thomas do anything wrong in accepting gifts from a wealthy Republican, or is Thomas the victim of years of pent-up anger at the Supreme Court by Democrats? Yes.
According to an investigation by ProPublica, for more than 20 years Justice Thomas received lavish and expensive gifts, including trips on a private yacht and a private jet, from Harlan Crow, a Texas billionaire and real estate developer with a long record of support for Republican politicians. Under the ethic regulations which guide Supreme Court justices, it is not clear that Thomas had to report any of this (Thomas says the guidance he received affirmed he did not need to report any of the gifts as his angel, Crow, had no business before the Court and the trips were “personal hospitality,” a gift from a friend.)
ProPublica asserts that the Ethics in Government Act of 1978 required Thomas to report these gifts. This is most probably untrue. People do not report generally “personal hospitality,” such as Thomas’s vacations. It wasn’t until a few weeks ago that the Judicial Conference issued new guidelines saying free trips and air travel must now be reported. This was announced as a change in policy, meaning disclosure was not required in the past but would be in the future. It is as simple as that: The rules did not require reporting of trips in the past, but going forward they do.
So it appears while Thomas did not break the letter of these regulations, he certainly skirted the edge of what we’ll call propriety, the appearance of being on Harlan Crow’s extended payroll. For a guy who has lived so long in Democratic crosshairs it seemed an unwise thing for Thomas to do, even if legal. One theme of government ethics classes is you don’t have to demonstrate actual impropriety, you must avoid even the possible appearance of impropriety. Accepting lavish travel perks? Operating you own email server? Just not what regular Feds do, whether legal or not.
Thomas’ long war with the Left started with his confirmation hearings in 1991 after his nomination by President George H.W. Bush. Anita Hill, who worked for Thomas at the Department of Education and the Equal Employment Opportunity Commission, testified before the Senate Judiciary Committee Thomas sexually harassed her during that time. Her testimony ignited a national conversation about sexual harassment in the workplace and the treatment of women in the legal profession. It introduced many Americans to the vocabulary of pornography long before Bill Clinton soiled the waters (small world: Senator Joe Biden was the Chair of the Senate Judiciary Committee, which oversaw the confirmation process. Biden has faced criticism for his sexist handling of Hill’s testimony and for not allowing three other female witnesses to testify during the hearings.)
As a jurist criticism of Thomas has focused on three points. Many liberals disagree with Justice Thomas’s conservative judicial philosophy, which emphasizes originalism and strict interpretation of the Constitution. They argue that this approach leads to narrow interpretations of individual rights and protections, particularly for marginalized groups. Similarly, liberals criticize Justice Thomas for his opposition to affirmative action and other civil rights policies. They argue that his views on these issues are harmful to communities of color. Lastly, Thomas is known for being one of the least vocal members of the Supreme Court, rarely asking questions during oral arguments or engaging in public discourse about his opinions. Some liberals argue that this lack of engagement is problematic and makes it difficult to understand his reasoning on key issues. There are accusations he often has made up his mind along ideological lines before even hearing a case.
Thomas has more recently become a lightening rod for everything Democrats have come to hate about the Supreme Court, as the Court shifted rightward and decisions like Roe v. Wade went against standard liberal thinking. They see Thomas’ “corruption” as emblematic of the Court’s outsize power due to lifetime appointments, isolation from traditional Constitutional checks and balances, and virtual immunity from public pressure, making it a magnet for corruption and influence-peddling. They see Harlan Crow as having purchased direct access to one of the most influential and powerful men in America and argue that while Crow may not have a specific issue in front of the Court, he holds a generic interest in right wing causes and thus has bought himself a sympathetic judge for his broader Conservative agenda.
Things only got worse when it was discovered that Thomas’ spouse Ginni donated to Republican causes and sent texts cheering on the protests of January 6. A woman with political thoughts of her own! Nonetheless, Thomas is a man with a target on his back.
The only real check and balance on Supreme Court justices is formal impeachment and removal from the bench, so it not surprising at the first sign of impropriety Democrats like AOC have immediately called for Thomas to be impeached. It won’t happen; the standards for impeachment are high, whether what Thomas did actually qualifies is far from clear, and a partisan Congress will never go along. Only one Supreme Court justice has ever been impeached, Samuel Chase, in 1804 for alleged political bias in his judicial conduct. The Senate held a trial, but ultimately acquitted Chase of all charges. No other Supreme Court justice has been impeached since then. Justice Abe Fortas did resign over 50 years ago over money issues, ahead of a likely try at impeachment.
Some have already gone further than the expected calls for hearings and investigations. The New Republic writes “The Democrats need to destroy Clarence Thomas’s reputation. They’ll never successfully impeach him. But so what? Make him a metaphor for every insidious thing the far right has done to this country.” The magazine went on to call him the “single worst Supreme Court justice of all time. Clarence Thomas is an embarrassment to the Supreme Court and the country, and the worship of this man on the right is one of the greatest symbols of their contempt for standards, the law, precedent, and democracy.”
The hyperbole gives it away — all of this is another tempest to fill in the dead space between Orange Man Bad stories. Thomas should not be proud of his actions, but nor should he face impeachment, never mind some sort of public drawing and quartering of his reputation, over what he did. Clarence Thomas is taking one for the Court.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Thoughts and Prayers Because The Kids Are Not Alright
Americans ages 18 to 20 account for only four percent of the population but 17 percent of murders. The problem is not just the guns. It is the young (almost always) men who wield them. Any possible starter solution rests with the shooter, not the firearm.
There’s a pattern inside those sordid statistics, with some 70 percent of school shootings since 1999 having been carried out by people under 18. The median age of school shooters is 16. It’s our kids shooting other kids, whether because they are left out, bullied, teased, or angry at some slight or offense, it is kids killing kids. Since these killings tend to be “local,” typically the shooter and the dead share a racial and/or social-economic background, leaving “white supremacy” as a cause in the dustbin alongside blaming heavy metal records and Satanism. There have been at least 554 school shooting victims, with at least 311,000 children exposed to gun violence at school in the U.S. since the Y-in-the-road game changing Columbine High School massacre, all spread across 376 schools. The frequency of shootings has increased, with a surge of 46 incidents in 2022, the highest in any year since 1999. The safest year was 2020, when most schools were closed and parents needed only worry about Covid taking their kids.
Since it’s not the guns per se but young men who are to blame, more traditional gun control is unlikely to make much of a difference. Already under the Federal Gun Control Act (GCA), shotguns and rifles, and ammunition for shotguns or rifles may be sold only to individuals 18 years of age or older. All other firearms can be sold only to individuals 21 years of age or older. Licensed sellers are bound by the minimum age requirements established by the GCA regardless of state or local law. However, if state law or local ordinances establish a higher minimum age, the gun seller must observe the higher age requirement.
Background checks vary in quality from state to state but generally seek to prohibit sales for reasons such as a history of domestic abuse or violent felony convictions, crimes unlikely to snare the shooters just out of middle school. No background check is going to catch someone seething with rage. Checks also are at the time of purchase and gun ownership can be forever. There is the private transfer loophole that bypasses most background checks, though no evidence budding mass killers seek out this method of gun acquisition.There is also the Columbine divide that somehow factors in to kids killing kids. Pre-Columbine America saw school shootings number only approximately 300 instances in 150 years. Post-Columbine shootings number 331 in only 24 years. Something big is very wrong in America and our kids are not alright. Add in teen suicides (many involving guns; suicide is the third leading cause of teen death, with homicide in the number two position, add those together and guns are Number One), and you have more than a crisis, you have a nightmare.In the absence of Federal statistics, the Washington Post has kept records of all child-related shootings. It found school shootings disproportionately affect black children; black students make up 16.6 percent of the school population but experience school shootings at twice that rate. At schools with majority black student bodies, shooters typically target a specific person, limiting the number of people shot — and the subsequent media exposure. Mass shootings (four or more people) tend to be a white kid’s domain.But as we approach the “what should we do” portion of the discussion about guns, here is perhaps the most important statistic: in cases where the source of the gun could be determined, 86 percent of the weapons were found in the homes of friends, relatives or parents. Where else could an elementary school student get a gun after all? Federal and many state laws limit long gun sales to 18-year-olds, many setting the bar at 21. There is no evidence that gun shows are where children get their guns. They get them at home.There are two kinds of parents in these cases, those who fail to treat their guns responsibly and those who fail their children. One avenue of exploration would be much tougher penalties for adults who fail to secure their guns and ammunition, in line with penalties for selling drugs to minors or child neglect. States could consider trigger-lock or other safety oriented giveaways, and make purchasing such tools a requirement for buying a gun. Of course some people will fail to use the safety tools, either on purpose or by accident, but the process of protecting ourselves needs a long term solution in spite of short term failures.A second avenue of exploration is to expand red flag laws (Extreme Risk Protection Orders) for parents who suspect their children are headed down the wrong road to call on which would place one more hurdle in the way of acquiring weapons. Red flag laws enlist parents, gun salespeople, teachers, and peers in spotting students who should not have ready access to firearms. A red flag law allows people to petition a state court for the temporary removal of firearms from a person who may present a danger themselves or others. A judge makes the final determination.Such laws exist in 19 states and D.C. at present (14 states of those states adopted red flag gun laws after the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida) with considerable variation. One of the most significant variations is who may petition a court to take someone’s guns away. Every state currently allows law enforcement to do so, but California is the only one which includes family members. None of the laws in place allow teachers, clergy, doctors, coworkers, or school peers, people who may well know a young man’s intent best, to petition. A Federal law which standardizes such criteria is badly needed. Basic red flag laws are judicially sound, and have, for example, been used in Florida nearly 6,000 times since 2018 and survived a state Supreme Court challenge. And Florida has had no mass school shootings since the law went into effect.Unlike laws banning whole classes of weapons (i.e., “assault rifles”) new laws focused on the shooter may be one possible path forward, at least concerning kids shooting kids at school. Advantages include:— Red flag laws allow for early intervention before an individual with mental health or behavioral issues can cause harm to themselves or others.— Red flag laws can help reduce the number of firearms in the hands of individuals who are at high risk of harming themselves or others.
— By temporarily removing firearms from individuals who are considered a danger to themselves or others, red flag laws can help increase safety for both the individual and the general public.
— Red flag laws can be effective in preventing suicides, as individuals who are at high risk of self-harm can have their firearms temporarily removed.
— Red flag laws typically require a court hearing before firearms can be temporarily removed, ensuring that individuals have the opportunity to defend themselves and that their due process rights are protected.
And so a day after a typical mass shooting, schools remain closed or on some heightened state of alert. Flags fly at half staff. People leave flowers, notes, and toys at the door. Red flag laws would seek to take guns away from kids before all that, and have been legally tested. As a potential national-level solution they do not restrict gun ownership among most adults, and barely open the Pandora’s Box of the Second Amendment. They are as apolitical as anything to do with guns in America can be and are supported by 72 percent of Americans. Protecting our kids from our kids has to start somewhere.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Third World Politics: Details of the Trump Indictment
The rule of law, which seems so precious to holier-than-thou Democrats these days, depends above all on one thing: a belief among the majority of us that while no one is above the law, the law will also be applied fairly to all those it does affect. Whether you loathe Trump or love him, you know this: what is happening now in Manhattan is unfair and inconsistent with a nation that once prided itself on believing in the rule of law. Who is still a believer today?
The previously sealed indictment shows Donald Trump was charged with 34 felony counts for falsification of business records, the only crime actually charged. The falsification of business records is normally prosecuted in New York as a misdemeanor. But Bragg’s office apparently bumped up all the charges to felonies on the grounds that the conduct was intended to conceal another underlying crime, violating election finance law (“with intent to defraud and intent to commit another crime and aid and conceal the commission thereof.”) There is more smoke than fire; no wonder the DA wanted to keep this mess sealed as long as possible and the judge won’t allow cameras in the courtroom. But specifically, how is this unfair?
Overcharging and stacking charges. Two basic prosecutorial transgressions. If anything, Trump should have been charged with a simple misdemeanor, the so-called falsification of business records for his seemingly characterizing money legally paid to Stormy Daniels and others as part of a nondisclosure agreement as “legal expenses” as well as payments to the National Enquirer to “catch and kill” a story about Trump’s alleged affair with Karen McDougal and other stories.
The overall case has no victim of Trump’s “crime,” and is basically a tempest over bookkeeping. Bumping all this up to felony charges based solely on Bragg’s supposition that the error was made with the intent to cheat on campaign finance laws is just overcharging, trying to make this all seem more important than it is.
Stacking, the second basic prosecutorial transgression, refers to a DA’s attempt to break one “crime” into as many pieces as he can (34 counts, one for each check cut to lawyer Michael Cohen allegedly for Stormy, et al) to also exaggerate the importance of it all and justify the felony upgrade.
Ignoring precedent cases to “get him.” Alvin Bragg ran for office on prosecuting Trump. He is fulfilling a campaign promise and paying off his backers. Bragg, in the words of law professor Jonathan Turley, had a “very public, almost Hamlet-like process where he debated whether he could do this bootstrapping theory [bumping misdemeanors up to felonies.] He stopped it for a while and was pressured to go forward with it. All of that smacks more of politics than prosecutorial discretion.” Indeed, if Bragg were to have looked fairly at precedent he would have run right into the John Edwards case. Edwards, a former United States Senator and 2004 Democratic vice presidential nominee, was indicted in 2011 on charges of violating campaign finance laws during his 2008 presidential campaign. The charges stemmed from allegations Edwards used nearly $1 million in illegal campaign contributions to conceal an extramarital affair during his campaign.
The government alleged Edwards received money from two wealthy donors and used it to support his mistress and their child in return for their silence. The government claimed this constituted a violation of campaign finance laws, which limit the amount of money that individuals can contribute to a campaign and require that such contributions be disclosed. Edwards maintained the payments were gifts and not campaign contributions, and therefore not subject to campaign finance laws. A jury acquitted Edwards on one count of violating campaign finance laws and deadlocked on the remaining five counts. The government ultimately decided not to retry Edwards.
Creating New Political Precedent. If this is all they found in years of obsession with destroying this man, he must be the cleanest person to ever hold office. As former Supreme Court Justice Robert Jackson observed decades ago about unfairness, “It is not a question of discovering the commission of a crime and then looking for the man who has committed it; it is a question of picking the man and then searching the law books or putting investigators to work to pin some offense on him,” something that is inherently unfair.
The law applied equally. For the nation’s sake any action against Trump must preserve what is left of faith in the rule of law applied without fear or favor, or risk civil disenfranchisement if not outright civil unrest. To do this, someone will have to address the case of Hillary Clinton, who maintained an unsecured private email server processing classified material. Clinton destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries. She operated the server out of her New York (!) kitchen. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests (a crime with the intent to commit another crime) ahead of her 2016 presidential run. The Hillary campaign and the DNC also did something naughty in paying for the Steele dossier as “legal expenses” and not campaign expenditures, and got off with only an Election Commission fine for their bookkeeping “error.”
In addition, those who claim Trump’s indictment is not unfair will also have to account for the fact that Barack Obama’s presidential campaigns in 2008 and 2012 were not found to have violated campaign finance laws and no charges were even levied. During the 2008 campaign donors were able to make contributions using fictitious names, such as “Mickey Mouse” and “Donald Duck,” and the campaign was criticized for not doing enough to prevent fraudulent donations. Another controversy involved the Obama campaign’s use of untraceable prepaid credit cards, which raised concerns about the possibility of illegal foreign contributions. No charges were ever filed.
Unequal prosecution. This concern extends past presidential politics. On Sunday, Speaker of the House Kevin McCarthy tweeted “DA Alvin Bragg is abusing his office to target President Trump while he’s reduced a majority of felonies [in NYC], including violent crimes, to misdemeanors. He has different rules for political opponents.” The DA’s tactics have led to a surge in crimes committed in Manhattan as prosecutions have fallen. Bragg claims equity demands he selectively prosecute; Bragg reduced 52 percent of all felony charges to misdemeanors, opposite of what he did to Trump.
The Future. If the standards being applied in New York hold, then while this is the first indictment of a former president it will not be the last. Every local prosecutor in the country will now feel that he has a green light to criminally investigate and prosecute presidents after they leave office. Democrats salivating over the charges against Trump will feel differently when a prominent Dem ends up on the receiving end of a similar effort by any of the thousands of prosecutors elected to local office, eager to make their bones by taking down a president of the United States (remember Jim Garrison and the JFK assassination.) Perhaps over the Hunter Biden case? Could things get to the point where the rule of law means a Republican candidate will need to stay out of blue states to avoid prosecution and vice-versa? Trump went to New York and surrendered himself voluntarily; imagine if he had stayed in Florida and fought any extradition attempt to force him to Manhattan. Now imagine an ageing Joe Biden a virtual prisoner of a Democratic safehouse in Delaware. Historians would have to call it the Bragg Rule.
If you’re curious about how that might work, just have a look at post-military dictatorship Korea where prosecuting one’s political enemies is a popular blood sport. Former President Roh Moo-hyun faced corruption allegations after leaving office in 2008, but he died by suicide before he could face trial. Former President Park Geun-hye was impeached and removed from office in 2017, and she was subsequently sentenced to 25 years in prison on charges of bribery and abuse of power. Former Presidents Kim Dae-jung and Kim Young-sam were investigated for corruption after leaving office, but they were not convicted. Overall, whether a former South Korean president goes to jail after their term depends on various factors, such as the evidence against them, and more significantly, the political climate. Is this America’s future? Ask Alvin Bragg.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Real Trump Witchhunt
Concerned the law be applied equally to all? Worried about political witch hunts? You should be, only you’re likely worried about the wrong case.
While Trump’s will-he-or-won’t he indictment saga in New York sags on, it’s a magician’s trick of misdirection. The real witch hunt and challenge to the rule of law is ongoing in the Mar-a-Lago classified documents case where the government will force one of Trump’s own lawyers violate attorney-client privilege and present evidence against his client, Trump, in regards to handling classified documents.
A federal appeals court ruled earlier this month a lawyer for Donald Trump in the investigation into his handling of classified material had to answer a grand jury’s questions and give prosecutors documents related to his legal work against his will and in violation of attorney-client privilege, which typically makes communications between a lawyer and his client private and out of the reach of prosecutors. The ruling by the U.S. Court of Appeals for the District of Columbia was a victory for the special counsel overseeing the investigation and followed Trump’s effort to stop his lawyer, Evan Corcoran, from handing over what are likely to be dozens of implicating documents to investigators. He’ll have to give up what was shared once with him in confidence.
The gist of the matter is that at one point, when asked if there were any additional classified materials at Mar-a-Lago, Trump ordered his lawyers to prepare a statement stating “no,” that all classified had been turned over to the government. Based on Trump’s statement to them, the lawyers, including Corcoran, wrote to DOJ that a “diligent search” for classified documents had been conducted at Mar-a-Lago in response to a subpoena. That claim proved untrue as FBI agents weeks later searched the home with a warrant and found roughly 100 additional documents with classified markings. The Justice Department now claims Trump lied to his own attorneys in claiming no classified documents, possible crimes of fraud and obstruction in defying the government’s efforts to reclaim classified materials.
Attorney-client privilege is a legal principle that protects communications between a lawyer and his client from being disclosed to others, including the courts. This privilege is intended to encourage clients to be open and honest with their attorneys, which in turn helps attorneys provide effective legal representation. Any information or communication exchanged between a lawyer and his client is protected from disclosure, as long as it was made in confidence for the purpose of seeking legal advice or representation. This includes not only written and oral communications, but also any documents or materials shared with the attorney. The privilege belongs to the client and not the attorney, meaning that it is the client who has the right to assert or waive the privilege, as with Trump.
There’s a long history to attorney-client privilege, dating back to the ancient Roman and Greek legal systems. In the 16th century, English courts recognized the concept of legal privilege, which included the privilege of lawyers to refuse to testify against their clients in court. By the 18th century, the concept had expanded to protect all confidential communications between attorneys and their clients. In the United States, the attorney-client privilege was recognized early on in the development of the legal system. In 1810, the U.S. Supreme Court established privilege in the case of United States v. Burr. The Court held that communications made by a defendant to his attorney for the purpose of obtaining legal advice were privileged and could not be used as evidence against the defendant. Since then, the attorney-client privilege has been recognized and upheld by courts across the United States. It’s a big deal and one of the cornerstones of fairness in our system.
In the Trump case, the Justice Department is using the one major exception to privilege, when the communication is intended to further a criminal or fraudulent act, to compel lawyer Corcoran to testify against his own client. In other words, Justice asserts Trump lied to Corcoran about having no more classified documents, and that this constituted a crime of fraud and maybe obstruction, and thus privilege is not available and Trump’s lawyer can be made to testify against his client. The crime or fraud exception to attorney-client privilege itself has a long history, dating back to English common law. In the United States, the crime or fraud exception was first recognized by the Supreme Court in the 1840 case of United States v. Privileged Communications. This exception was later reaffirmed in other landmark cases, such as Clark v. United States (1933) and United States v. Zolin (1989).
There is some risk to the DOJ case if Corcoran is forced to testify while any further appeals are ongoing, as Trump has suggested he will seek a Supreme Court hearing of the matter. That opens the possibility if the Supreme Court ultimately rules the government’s arguments about the crime-fraud exception are wrong, prosecutors would be barred from using the information Corcoran provided as evidence to seek a grand jury indictment. That could serve as a basis for overturning the indictment, and make a clear case that Trump’s rights had been stomped on.
“Prosecutors only attack lawyers when they have no case whatsoever,” according to the Trump campaign. That said, DOJ seems to have little to worry about. Trump has an uphill battle. One of the precedent cases, Clark v. United States, involved a criminal defendant, Samuel Insull, who was accused of mail fraud and other crimes related to his business activities. Insull had consulted with his attorney, Frank Clark, and had given him documents and information related to his shady business dealings. During Insull’s trial, the government sought to introduce evidence that Insull had given false information to Clark, and argued that the attorney-client privilege did not apply because the communications were made in furtherance of a crime. The trial judge allowed the evidence to be admitted, and Insull was ultimately convicted.
As a final act, for now, Trump’s objections and request for a stay in proceedings were overruled by the Appeals Court of the District of Columbia. DOJ Special Counsel Jack Smith will obtain key documents from the lawyer for the former president related to the handling of sensitive national security records discovered at Trump’s Florida home last year; it is unknown if Corcoran will also be required to testify further before the grand jury. Trump’s only hope now is to have Corcoran hand over the documents and testify, then seek a hearing before the Supreme Court, and see through that the testimony rescinded and the government’s case fall apart.
If Trump lied to his own attorneys it is unclear that constituted a prosecutable crime. He has certainly not been charged with that. Things are further complicated by the fact that Trump has not been indicted or charged yet with any crime at all in connection with the documents. It’s a chilling development; attorney-client privilege had to yield to a fishing expedition via Corcoran’s testimony and records, evidence that the attorney may have been used to advance a crime. This can have significant legal consequences, as it allows the other party to use the previously confidential information against the client in court. See if you feel that’s what is intended by what we are increasingly call in quotation marks, “the rule of law.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Trump Indicted
What would you have done if you were Alvin Bragg? Would you have indicted Donald Trump? Or would you have walked away, concerned about accusations you as a Democrat were playing politics, and more concerned the indictment would somehow help the man you are trying to take down? You don’t play with such fire around a guy like Trump casually.
At Bragg’s insistence, Trump was indicted by a Manhattan Grand Jury on Thursday. The actual charges will not be announced until Trump is arraigned before a judge, likely in about a week. The charges will however be based around Stormy Daniels, who allegedly had sex with Trump in 2006, which he denies, and which she and Michael Cohen once also denied. She then took money in 2016 to sign a nondisclosure agreement (NDA) to keep silent. She willfully violated the NDA to revive her career and profit selling her story to the National Enquirer. Meanwhile, when faced with jail time for all sorts of dirty deeds, Trump’s now disbarred former lawyer Michael Cohen, a felon himself, violated attorney-client privilege to claim on his word the NDA payoffs were actually complex technical violations of New York business records law (a misdemeanor) and Federal campaign finance law (potentially a felony.) If this all sounds complicated, it’s because it is. No wonder even the Washington Post labeled this a “zombie case.” It is also the weakest case in the universe of legal troubles around Trump.
But there is a bigger question: if you were Bragg, can you win? Will voters object to a district attorney in New York trying to play kingmaker in the 2024 election, prosecuting a Federal case locally in Manhattan? Candidate Trump, surrounded by an aura of legal invincibility, is already earning partisan points claiming he is the victim of banana republic politics, and this indictment will allow him to claim he was right all along. Trump will fire both barrels, one aimed at Bragg, the other likely at Biden (who he will accuse of playing a role.) He was already the victim of partisan use of justice, as the FBI did try to influence both the 2016 election (with Russiagate) and the 2020 (by deep-sixing Hunter Biden’s laptop claiming falsely it was Russian misinformation) and now is taking a swing at 2024 with the Mar-a-Lago documents. If public opinion moves further to Trump’s side, Alvin Bragg through his indictment just reelected Trump to the White House as a sympathy candidate. CIA spooks, no strangers to manipulating elections abroad, call that blowback, and it is a real threat in this instance.
For the nation’s sake any action against Trump must preserve what is left of faith in the rule of law applied without fear or favor, or risk civil disenfranchisement if not outright civil unrest. Bragg will have to address the case involving former Secretary of State Hillary Clinton, who maintained an unsecured private email server which processed classified material. Her server held e-mail chains classified at the Top Secret/Special Access Program level which included the names of CIA and NSA employees. Clinton and her team destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries. She operated the server out of her New York (!) home kitchen despite the presence of the Secret Service on property who failed to report it. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests during her tenure as SecState ahead of her 2016 presidential run. The Hillary campaign and the DNC also did something naughty in paying for the Steele dossier as “legal expenses” and not campaign expenditures, and got off with only an Election Commission fine.
In addition, those who claim Trump’s indictment is not political in nature will also have to account for the non-actions against the Obama campaign. Barack Obama’s presidential campaigns in 2008 and 2012 were not found to have violated campaign finance laws and no charges were even levied. During the 2008 campaign donors were able to make contributions using fictitious names, such as “Mickey Mouse” and “Donald Duck,” and the campaign was criticized for not doing enough to prevent fraudulent donations. Another controversy involved the Obama campaign’s use of untraceable prepaid credit cards, which raised concerns about the possibility of illegal foreign contributions. No charges were ever filed.
There is also the case of John Edwards. Edwards, a former United States Senator and 2004 Democratic vice presidential nominee, was indicted in 2011, on charges of violating campaign finance laws during his 2008 presidential campaign. The charges stemmed from allegations Edwards used nearly $1 million in illegal campaign contributions to conceal an extramarital affair during his campaign. Sound familiar?
Specifically, the government alleged Edwards received money from two wealthy donors and used it to support his mistress and their child in return for their silence. The government claimed this constituted a violation of campaign finance laws, which limit the amount of money that individuals can contribute to a campaign and require that such contributions be disclosed. Edwards maintained the payments were gifts and not campaign contributions, and therefore not subject to campaign finance laws. A jury acquitted Edwards on one count of violating campaign finance laws and deadlocked on the remaining five counts. The government ultimately decided not to retry Edwards.
The other fear which should have held Bragg back is that business records mismanagement and even campaign finance violations are typically dealt with either via administrative penalties and fines (Trump will not go to jail for any of this.) Most of the laws Trump may have broken require some sort of intent to do wrong. In other words, Trump would have had to have taken the steps with Stormy not just for ego or his presidential library or as some crude souvenir of virility but with the specific intent to commit harm. Proving a state of guilty mind — mens rea — will be the crux of any actual prosecution. What was Trump thinking at the time. “It should be clear,” says the New York Law Journal, “Cohen’s plea, obtained under pressure and with the ultimate aim of developing a case against the president, cannot in and of itself establish whether Trump had the requisite mental state.” If DA Bragg has other key witnesses beyond Stormy and Cohen he has not signaled as such.
The final questions are probably the most important: Bragg knows what the law says. If knowing the chances of a serious conviction are slight, why would he take the case to court? Then again, if knowing the chances for a serious conviction are slight, why would he have gone to the Grand Jury at all, his predecessor and the Department of Justice having passed on this case. No one is above the law, but that includes politics not trumping clean hands jurisprudence as well.
If Bragg successfully navigates the politics, if he proves his case in court, then what? Trump’s “crimes” are minor. Could Bragg call Trump having to pay a fine or even do some sort of community service during the 2024 campaign a win? It seems petty, as even a conviction would not disqualify Trump’s bid for the White House (Eugene Debs ran for president while locked up.) Controversy is home turf for Trump; he is clearly again the center of attention and the dominant figure in his party. It sure seems Trump wins politically big-picture whether he wins or loses at court. If you were Alvin Bragg, how would you answer accusations of the weaponization of the legal system to advance a political agenda?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Revenge of Stormy Daniels?
Convicting Donald Trump for some sort of crime connected to his alleged affair with porn star Stormy Daniels means taking the word of that porn star and a guy like Michael Cohen, serial liar and convicted felon, over the word of someone many people think has the disposable morality of a porn star and the trustworthiness of a serial liar, Trump himself. That’s likely going to be up to a Manhattan jury if the long-rumored indictment comes through. Next for any of this to matter Trump would have to be reconvicted in the court of public opinion, something that has largely already passed as the rough details of Trump and Stormy’s relationship (financial and otherwise, though Trump denies having an affair with Daniels) have long been chewed over by everyone from law reviews to late night comics. About the only people who really think the walls are closing in, again, are in the cheap seats of blue check Twitter.
Goodness help us, here’s the rest of the raw material of this criminal caper. Trump may soon be indicted on some sort of campaign finance law violation. This means Manhattan district attorney Alvin Bragg for the State of New York (Federal prosecutors have long signed out of the cheesy political revenge fantasy business) has convinced a grand jury there is enough evidence to charge Trump with the crime. A grand jury setting means Bragg faced no opposition in laying out his case, as the not-quite-a-defendant is not represented. So no cross examination, no motions to suppress evidence, no hammering away at Michael Cohen as perhaps the least credible witness of all time, and thankfully, no hoary Godfather references to it all in the media. The old joke is you can indict a ham sandwich if the DA is any good, and if Trump is indicted that motto holds true here. Indicted means only the case moves on to the next stage ahead of a possible trial anyway.
Stormy Daniels, a porn star whose very NSFW antics are all over the internet, has sex with a businessman. She then takes more money to sign a nondisclosure agreement (NDA) to keep silent. Sensing an opportunity when the businessman later runs for president, she willfully violates the NDA to revive her career. Meanwhile, when faced with jail time for all sorts of dirty deeds, the businessman’s now disbarred lawyer, a felon himself, violates attorney-client privilege to claim on his word the NDA payoffs (inherently legal) were actually complex technical violations of campaign finance law. And, oh yeah, most of this naughtiness happened way back in 2006, before Trump was even president. That’s the basic case to bring down Citizen Trump in the ultimate act of political revenge. Fuhgettaboutit!
It will be interesting in a stop-and-stare-at-a-car-wreck kinda way to see how DA Bragg presents his case. Problem One is that with paying money as part of an NDA is not illegal; lawyers regularly obtain (here’s a fill-in-the-blanks NDA) discreet resolutions of issues threatening the interests of their clients (“settlements.”) Without admitting guilt, money is paid from Party A to Party B in return for Party B dropping all future claims, agreeing to never mention something again, handing over documents or photos, whatever you’d like. It happens all the time, and in fact is the dirty little secret which keeps sexual harassment alive and well. Wealthy men pay women to remain silent under NDAs. It does not change the legality of all this even if the media calls those payments hush money or payoffs and Michael Cohen a “fixer.”Problem Two for Bragg is any criminality must come from twisting a not uncommon occurrence into a violation of a campaign finance law. When Trump had sex with Stormy he was just another philanderer. However, a few years later Trump became a philandering presidential candidate, and that money shifted, maybe, from a legal NDA payoff to something akin to a campaign contribution. The what in this case (money for silence) is clear. It is the why that matters most.So Problem Three, and it is a big one, is intent. You have to intend to violate campaign finance laws, not make a mistake or just act like a sleaze. Any illegality comes from the supposition by Michael Cohen that he can speak to Trump’s intent, that the NDA was not, say, to spare Trump’s marriage from new embarrassment, but “for the principal purpose of influencing an election” amid everyone already knowing Trump was a serial philanderer. If the whole was primarily for the purpose of hiding Stormy from voters instead of hiding Stormy from Trump’s wife and kids, then the money was essentially a campaign contribution and whole new set of laws kick in. But “it should be clear,” said the New York Law Journal, “Cohen’s plea, obtained under pressure and with the ultimate aim of developing a case against the president, cannot in and of itself establish whether Trump had the requisite mental state.”Thus Cohen’s testimony does not prove Trump knew the payments made to Stormy were illegal. Prosecutors would have to prove that willingness by Trump alongside proving his principal goal was to influence the election. If this ever reaches court, Trump will simply deny that and no jury can say weighing one man’s word against another, especially these mooks, eliminates all reasonable doubt. Felons testifying out of self interest make poor witnesses. Michael Cohen pleaded guilty to eight criminal offenses, including lying to Congress, tax fraud, and campaign finance violations. Cohen will face questions of personal bias, given his own multiple lawsuits against Trump. He will face questions about whether he received a benefit from prosecutors, early release from prison, for cooperating. If a liar like Cohen is your only witness on Trump’s intent, you really have no witnesses.There’s more. Problem Four is prosecutors also have to connect Trump directly to the payment. The check for $35,000 from Trump to Cohen, which was supposedly part of $135k paid to Stormy Daniels, Michael Cohen displayed at his 2019 Congressional hearing and ten others alleged to exist do not show what the payments were for. The checks do not have Stormy’s name on them. Cohen simply claimed they were part of his reimbursement for “illegal hush money I paid on his behalf.” The check(s) are not receipts; they could have been for anything. They do potentially expose Trump to another crime, falsifying business records, a misdemeanor in New York.They are receipts for a crime only because Cohen says they are. Under direct questioning when he testified before Congress, Cohen claimed unfortunately there was no corroborating evidence. He said he sent fake invoices to Trump only for “legal retainer fees,” so don’t bother with the invoices as evidence because Cohen now says he lied on them claiming it was a retainer fee. The checks total over $400k, because supposedly Trump rolled Cohen’s fee and bonus into the amount, so we just have to take his word for it $135k of that money was for Stormy. Cohen said some of the checks were signed by Don, Jr. and the felony-convicted tax cheat Trump Organization CFO. That means the checks would be used to implicate personally a person who did not sign them. If this all sounds complicated, it’s because it is.Problem Five, for Stormy’s payoff to be illegal, it will also be necessary to determine the money came from campaign funds. If it was Trump’s private money, even private money he donated to his own campaign, there is likely no case. Even if the money is shown to be campaign funds, illegality is based on the $2,000 donation limit imposed on the supposed “giver,” Michael Cohen in this case who has already been convicted, a limit which does not apply to the candidate himself. The payment is also not a donation if it was made for an expense that would have been paid even if there were no campaign, like hiding an affair from your wife.And so what? There is nothing to stop Trump from running for president if he is under indictment, or even found guilty and serving time. His affair with Stormy, which may be offensive to some voters, has sadly been part of the public conversation around Trump for years. Anyone who has wanted to see Stormy in the buff has done the requisite searches. Trump is not former Democratic vice-presidential nominee John Edwards, who was found guilty in 2012 and withdrew from the race. Edwards was accused of illegally arranging for two wealthy supporters to pay $925,000 to keep his pregnant mistress out of public view during the campaign. This all is no knock-out blow for 2024. Trump’s spokesperson said in a statement, “The Manhattan District Attorney’s threat to indict President Trump is simply insane.” You literally cannot embarrass Trump into quitting. The Dems are going to have to beat Trump another way.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The People v. Donald Trump
Here are six things to think about ahead of any indictment and arrest of Donald Trump:
1 – What is Trump going to be indicted for? Trump may soon be indicted on a campaign finance law violation. This means Manhattan district attorney Alvin Bragg (Federal prosecutors seem to have long signed out of the cheesy political revenge fantasy business) has convinced a grand jury there is enough evidence to charge Trump with the crime. Since this was a grand jury, Bragg faced no opposition in laying out his case, as the not-quite-a-defendant is not represented. So no cross examination, no motions to suppress evidence, no hammering away at Michael Cohen as perhaps the least credible witness of all time. The old joke is a clever DA can indict a ham sandwich, and if Trump is indicted that motto holds true here.
2- But I thought this was all about Trump having an affair with some porn star? Stormy Daniels allegedly had sex with Trump in 2006, which he denies, and which she and Michael Cohen once also denied. She then took money in 2016 to sign a nondisclosure agreement (NDA) to keep silent. Sensing an opportunity when the businessman later ran for president, she willfully violated the NDA to revive her career and profit off selling her story to the National Enquirer. Meanwhile, when faced with jail time for all sorts of dirty deeds, the businessman’s now disbarred former lawyer, a felon himself, violated attorney-client privilege to claim on his word the NDA payoffs were actually complex technical violations of campaign finance law. If this all sounds complicated, it’s because it is. No wonder even the Washington Post labels this a “zombie case.”
3 – So the problem is the hush money paid in 2016? Not really but sort of. Paying money as part of an NDA is not illegal; lawyers regularly obtain discreet resolutions of issues threatening the interests of their clients. Without admitting guilt, money is paid from Party A to Party B in return for dropping all future claims, agreeing to never mention something again, handing over documents or photos, whatever you’d like. It happens all the time, and in fact is the dirty little secret which keeps sexual harassment alive and well. Wealthy men pay women to remain silent under NDAs. It does not change the legality of all this even if the media calls those payments hush money or payoffs. The what in this case (money for silence) is clear. It is the why that matters most. The why also affects any potential sentence; Trump lying would be a misdemeanor if it is proved that all he did was falsify his business records. But it could be a felony if prosecutors can prove that the falsification was tied to another crime and that’s where campaign finance laws come in.
4 – The case, if it ever goes to trial, will hinge on intent, what Trump intended the money to do for him, according to Cohen. One has to intend to violate campaign finance laws. Any illegality comes from the supposition by Michael Cohen that he can speak to Trump’s intent, that the NDA was not, say, merely to spare Trump’s marriage some new embarrassment, but “for the principal purpose of influencing an election.” If the purpose was hiding Stormy from voters instead of hiding Stormy from Trump’s wife, then the money could be seen as a campaign contribution and whole new set of laws kick in. But “it should be clear,” says the New York Law Journal, “Cohen’s plea, obtained under pressure and with the ultimate aim of developing a case against the president, cannot in and of itself establish whether Trump had the requisite mental state.” If DA Bragg has other key witnesses beyond Stormy and Cohen he has not signaled as such.It’ll be up to a jury to decide if Cohen’s testimony proves Trump knew the payments made to Stormy were illegal. Prosecutors would have to prove that willingness by Trump alongside proving his principal goal was to influence the election. If this ever reaches court, Trump will simply deny everything and it would be a rare jury that says weighing one man’s word against another, especially these knuckleheads, eliminates all reasonable doubt. Felons testifying out of self interest make poor witnesses. Michael Cohen pleaded guilty to eight criminal offenses, including lying to Congress, tax fraud, and campaign finance violations. Cohen will face questions of personal bias, given his own multiple lawsuits against Trump. He will face questions about whether he received a benefit from prosecutors, early release from prison, for cooperating.5 – Seems like an awful lot rests on what the jury “believes” versus what can be proven. Trump need only introduce doubt to prevail here. But that’s not where the jury question will first come up. Trump’s lawyers are already hinting they will demand a change of venue, that by this time everyone in New York either loves or hates Trump (mostly hates, going back to the 1980s) and it will be impossible to seat an impartial jury in Manhattan. Moving the whole show to say Pittsburgh or Seattle will only increase the circus-like atmosphere and will add to Trump’s public-facing argument that this is all unfair.6 – Trump denies the affair. So how do we know he paid Stormy to keep quiet about the sex? DA Bragg will need to do some heavy lifting to connect Trump directly to the NDA payment. The check for $35,000 from Trump to Cohen, which was supposedly part of $135k paid to Stormy Daniels, Michael Cohen displayed at his 2019 Congressional hearing and ten others alleged to exist do not show what the payments were for. The checks do not have Stormy’s name on them. Cohen simply claimed they were part of his reimbursement for “illegal hush money I paid on his behalf.” The check(s) are not receipts; they could have been for anything. That Cohen denied everything until 2018 when he changed to confessing everything will feature in any Trump trial.Under direct questioning before Congress, Cohen claimed there was no corroborating evidence. He said he sent fake invoices to Trump only for “legal retainer fees,” so don’t bother with the invoices as evidence because Cohen now says he lied on them. The checks total over $400k, because supposedly Trump rolled Cohen’s fee and bonus into the amount, so we just have to take his word for it $135k of that money was for Stormy. Cohen said some of the checks were signed by Don, Jr. and the felony-convicted tax cheat former Trump Organization CFO Alan Weisselberg. That means the checks would be used to implicate personally a person who did not sign them.If this case comes to trial, Trump’s side will drag its feet at every step, hoping to push the verdict past the 2024 election. There is nothing to stop Trump from running for president if he is under indictment, or even if somehow found guilty and serving time. His affair with Stormy has been part of the public conversation around Trump for years and is well-digested by voters. There are elements here which would cause a reasonable man to call this overcriminalization, an act of political revenge, an attempt to derail the Trump campaign by the DA in New York. Would Trump garner more sympathy votes than those he might lose running as the first-ever indicted presidential candidate? Will voters object to a district attorney in New York trying to play kingmaker in the 2024 election, taking the vote out of the voter’s hands? Isn’t arresting political opponents a Third World thing? Playing with fire around Trump is never a good idea.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Iraq War Anniversary
This week marks the 20th anniversary of Iraq War 2.0. The date is worthy of some reflection.
I was part of the war, heading two embedded civilian provincial reconstruction teams (ePRTs) 2009-2010 and wrote a book critical of the program, We Meant Well, for which was I was punished into involuntary retirement by my employer the U.S. State Department. The working title for the book was originally “Lessons for Afghanistan from the Failed Reconstruction of Iraq” and was meant to explain how our nation building efforts failed to accomplish anything except setting afire rampant corruption, and how repeating them nearly dollar-for-dollar in the Afghan theatre was just going to yield the same results. After all, isn’t one definition of madness doing the same thing over and over but expecting different results?
Between 2003 and 2014, more than $220 billion was wasted on the effort to rebuild Iraq. In the end, the sum was we accomplished worse than nothing. Iraq before our invasion(s) was a more or less stable place, good enough that Saddam was even an ally of sorts during the Iraq-Iran War. By the time we were finished Iraq was a corrupt client state of Iran. Where once most literate Americans knew the name of the Iraqi Prime Minister, a regular White House guest, unless he’s changed his name to Zelensky nobody cares anymore.
But today I reflect on another war anniversary, its sixth, which I spent in Iraq. There were no parties, nothing official to mark the day as any different from any other day, hot and dusty with a slight chance of being killed.
We had not always gotten along, the four of us, arguing over what the right thing to do was, how best to get through our year. We moved gracelessly to a small patio near our office, outlined by a CONEX shipping container on one side, a sloppy brick wall standing because it was too lazy to fall on a second, and the remnants of another building on the third. Usually when we came back with our secreted beer from the Embassy (as State Department employees, we did not fall under the military’s General Order No. 1 forbidding alcohol) we parceled the cans out in ones and twos, trying to make the stash last longer, like teens in our parents’ basement. A can tonight, maybe two on Friday, and a couple of cases could pass the time for weeks.
But tonight, maybe in honor of the anniversary, something unspoken made us greedy. We chugged cans, we popped the tops of the ever-warmer brew (room temperature was 104 degrees) and slurped the foam like Vikings on a New World bender. One of the benefits of not drinking often was that your body dried out, and so even a little alcohol thrown down that dry hole kicked your butt. A lot of alcohol drunk purposely under these conditions sent four adults into drunkenness, marvelously rich and fine. It tasted of a high school summer.
With a lot of dust in the air and only a toenail clipping shaped moon out, the darkness was complete as we sat drinking the last. A light would have embarrassed us. Seen in a photo, we could have been anywhere, there were no clues for an outsider to decode. We four felt closer to this place, and to one another, than we had ever had.
The long days at the Embassy for meetings where we had been laughed at as Country Cousin Muggles, unworthy, the warm beer, and the blanket of the dark, led to stories. With the exception of a long, wandering tale that had something to do with a tree, the Germans, and a lawsuit, we had all heard the drunken stories before. The two divorces, a daughter who did not write, the woman whose name had been forgotten even as the teller spent ten minutes describing how her shoes looked next to his bed—the stories all poured out in equal measure to what we poured down our throats. Some were bitter (the sum of our ages totaled over 200; nation-building was not a young man’s game), most more matter of fact. A lifetime of experiences, a thousand autumns, all tied up in those voices.
We realized, maybe for the first time, that we had more in common than we had differences. Like every dog year equaling seven human ones, time spent together in Iraq fast-forwarded how you felt about the people sharing it with you. Nobody cursed Iraq or the anniversary—on the contrary, though none of us could walk a straight line to save his life, we were sharply aware that it was only because we were in Iraq that we could share what we were sharing. There was little talk of the routines of home that used to govern our lives, mortgages, Saturday morning chores and errands. That happened only at the beginning of your time, when you could still smell home on your shirt, or at the end of a tour when you had to will yourself to remember so you could try to fit back in.
The talk instead was about people, friends, lovers, girlfriends, wives, Dads; what we did not have here and for whom we all accepted one another as surrogates. Maybe because we were drunk, we recognized we cared about each other, our differences not resolved but perhaps more vital, dispelled temporarily.
The next morning I awoke with a vicious headache and the realization that someday I would come to miss being with those men as much as I now missed the smell of pillows on my bed at home, or kissing my wife when we both tasted of coffee. It was already over 100 degrees, a Thursday, if I remember it right.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Iraq was 20 Years Ago Today…
I was part of Iraq 2.0, heading two embedded civilian provincial reconstruction teams (ePRTs) 2009-2010 and wrote a book critical of the program, We Meant Well, for which was I was punished into involuntary retirement by my employer the U.S. State Department. The working title for the book was originally “Lessons for Afghanistan from the Failed Reconstruction of Iraq” and was meant to explain how our nation building efforts failed to accomplish anything except setting afire rampant corruption, and how repeating them nearly dollar-for-dollar in the Afghan theatre was just going to yield the same results. After all, isn’t one definition of madness doing the same thing over and over but expecting different results?
The title of my book changed to something less academic sounding, coming out as it did around the tenth anniversary of Iraq War 2.0. It is important to look back accurately; on the tenth anniversary the meme was still that the Surge was going to work, that the final push of soldiers and civilian reconstructors was going to break Al Qaeda in Iraq by coopting their indigenous Sunni partners. “Jury Still Out on Iraq Invasion” wrote Politico. My editor selfishly hoped the war would still be going on in a few months so we might sell some books. I knew we had something to worry about, not that the war would fail to drag on but that the failures would be so obvious no one would see the need to read a whole book about them.
The way it all worked was like this. Washington would determine some broad theme-of-the-month (such as women’s empowerment) aimed at a domestic American audience. The theme would filter down to us at the PRT level and we were to concoct some sort of “project,” something tangible on the ground, preferably something that showed well in the media we’d invite to see our progress. It wasn’t hard because corrupt organizations arose like flowers from the desert to take our money. Usually run by a local Tony Soprano-type warlord, the organization would morph in name alone as needed from local activist group to NGO to entrepreneur incubator depending on the project. We’d give them boxes full of dollars (nobody wanted Iraqi money, a clue) and perhaps some event would occur, or a speaker might be brought in. We funded bakeries on streets without water, paid for plays on getting along with neighbors, and threw money at all this only because no one could find a match to just set fire to it directly. Little was expected in the end outside a nice slideshow celebrating another blow for democracy. In shopping for hearts and minds in Iraq, we made bizarre impulse purchases, described elsewhere as “checkbook diplomacy.”
As Iraq morphed into a subject we were just not going to talk about very much (one journalist who read my early draft opined “So you’re the guy who is going to write the last critical book on Iraq before Petraeus takes a victory lap in his”) attention turned to Afghanistan. I knew this because suddenly I was flooded with requests to write recommendations for the same people who had failed so completely in Iraq to work in Afghanistan. As part of some escalation or another, the military was rehiring most of the civilians who had failed to reconstruct Iraq into exactly the same roles in Afghanistan, presumably to (fail) to reconstruct that sad place.
I dutifully answered each personnel inquiry accurately, fully, and as a patriot, with the hope that someone would see what was going on and put a goddamn stop to it. I was very wrong. The key element of the fantasy was the reconstruction effort, the idea that rebuilding Afghanistan via $141 billion in roads and schools and bridges and hardware stores would gut the Taliban’s own more brutal hearts and minds efforts. That was the same plan as in Iraq only minutes earlier, where between 2003 and 2014, more than $220 billion was spent on rebuilding the country. Nonetheless, the Iraqi failure on full display, the United States believed that economic and social development programming would increase support for the Afghan government and reduce support for the Taliban (the log line for the war script.)
However, as had its sister organization in Iraq, the Special Inspector General for Afghan Reconstruction (SIGAR) wrote “the theory that economic and social development programing could produce such outcomes had weak empirical foundations.” Former Ambassador to Afghanistan Michael McKinley noted, “It wasn’t that everyone, including conservative rural populations, didn’t appreciate services… But that didn’t seem to change their views.” As the Army War College wrote, “This idea that if you build a road or a hospital or a school, people will then come on board and support the government — there’s no evidence of that occurring anywhere since 1945, in any internal conflict. It doesn’t work.” As an American former advisor to President Ghani told SIGAR, “Building latrines does not make you love Ashraf Ghani.” But that was indeed the plan and it failed spectacularly, slow over its own twenty years then all at once last August. SIGAR summed up: “U.S. efforts to build and sustain Afghanistan’s governing institutions were a total, epic, predestined failure on par with the same efforts and outcome in the Vietnam war, and for the same reasons.”
No, wait, nobody said any of those things during the Afghan war, only afterwards when it was time to look around and assign blame to someone other than oneself. The Iraq reconstruction failed to account for the lessons of Vietnam (the CORDS program in particular.) The Afghan reconstruction failed to account for the lessons of Iraq. We now sit and wait to see the coming Ukraine reconstruction fail to remember any of it at all.
“It is obvious that American business can become the locomotive that will once again push forward global economic growth,” President Zelensky said, boasting BlackRock, JP Morgan, and Goldman Sachs, and others “have already become part of our Ukrainian way.” The NYT calls Ukraine “the world’s largest construction site” and predicts projects there in the multi-billions, as high in some estimates as 750 billion. It will be, says the Times, a “gold rush: the reconstruction of Ukraine once the war is over. Already the staggering rebuilding task is evident. Hundreds of thousands of homes, schools, hospitals and factories have been obliterated along with critical energy facilities and miles of roads, rail tracks and seaports. The profound human tragedy is unavoidably also a huge economic opportunity.”
We did worse than nothing. Iraq before our invasion(s) was a more or less stable place, good enough that Saddam was even an ally of sorts during the Iraq-Iran War. By the time we were finished Iraq was a corrupt client state of Iran. Where once most literate Americans knew the name of the Iraqi Prime Minister, a regular White House guest, unless he’s changed his name to Zelensky nobody cares anymore. And that’s what the sign on the door leading out of Iraq (and perhaps into Ukraine) reads — thousands of lives and billions of dollars later, no one cares, if they even remember.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Fahrenheit 11/9: Rewatching the Michael Moore Movie from 2018
I rewatched Michael Moore’s Fahrenheit 11/9. The 2018 film is mainly a screed about all the bad things Trump was going to do as president. Time is a cold mistress: basically nothing Moore said four years ago about what was going to happen actually happened. Moore was wrong about Trump’s ties to Russia, Moore was wrong about Trump being the last elected president because he would seize total power, and Moore was wrong about the lasting impact of the progressive heroes of that year, the Parkland High School survivors.
Sorry to get ahead there. You do remember the mass shooting in a Parkland, Florida high school, right? A handful of “survivors” were insta-made into media sensations. Barack Obama supposedly personally wrote the Time magazine cover story saying they had “the power to insist that America can be better” we’re lead to guess he himself did not have.
In his film Moore portrayed the kids were examples of the anti-Trump force sent by the universe as a balancing mechanism, and that the power of activism was America’s only chance to remain a democracy. I can’t do justice to the hyperbole of Moore’s narration; you would think by listening these kids had the power to raise the dead simply by amassing RTs on Twitter. A good chunk of the movie is just Moore staring at the kids at work changing everything by being online, the filmmaker’s expression somewhere between pedophile on the playground fence and a proud dad.
Back in his heyday, there was a meme among businesspeople “Michael Moore just walked into your office. What do you do?” The answer back when was to lawyer up, call security, etc. Today the proper response would be to tell Mike sorry, you’re not hiring, and offer him a bottle of water if he’ll leave quietly. Moore created a style of documentary journalism where facts don’t matter if the conclusion (in this case, “guns and orange man bad”) is righteous enough. He forgets that in his earlier movies this sort of worked only because his generous abuse of facts and the actual conclusion were often close enough to one another, as in Roger and Me, Bowling for Columbine, and Fahrenheit 911.
But it is almost painful to watch him in this movie, claiming how the Parkland kids organized the massive March for Our Lives in Washington on March 24, 2018 all by themselves without asking them how a few high school kids in Florida secured marching permits from the notoriously persnickety Washington DC bureaucracy and National Parks Service, how they secured the massive security bonds and insurance needed, arranged stage construction, Porta Potties and sound reinforcement, set up security, ran an international media campaign, and so forth, all from study hall. Taking over the National Mall is not something you do by saying “Alexa, tell me how to take over the National Mall.” Moore thinks he’s fooling the rubes in ignoring such things when in fact he’s taking a dump on his subjects, setting them up to be blown over by the lightest of questions.
Moore himself is a thing to be pitied. You see him in this movie, hunchbacked and obese, searching the country for old-school Bernie-style liberals to champion. He doesn’t realize the parade passed him by sometime during the George W. Bush era and he comes off like some 80s hair metal band playing Holiday Inns with only one original member on stage. He gets caught up in his own narratives, in this film an extended side story about how the water is still bad in Flint, Michigan which ends up inadvertently highly critical of Saint Barack. His wandering call for Bernie to re-emerge walks dangerously close to admitting Hillary Clinton engineered that political castration. Moore awakens about half way through the movie aware who he is really criticizing for the most part and quickly pivots to more familiar ground, an extended lip syncing of a Trump speech to some iconic Leni Riefenstahl Nazi propaganda footage of Hitler.
In the case of the Parkland kids, by refusing to let them off the pedestal Moore in the end exposes them as the media-hungry fakes they are, or, to be generous, were made to be. A major scene shows kiddie activist David Hogg using Twitter to cancel a male candidate for some minor state seat in Maine and engineer his replacement with a woman. We don’t know anything about either candidate, only that Hogg did it with Twitter during fourth period (Moore assures him on camera it’s OK to fail his psych class to accomplish global-level change) and this is what the future is going to be.
The problem is the movie was made in 2018 and we can judge Moore’s vision of the future. Nothing really happened. The Parkland kids misunderstood, and Moore celebrates, emotional manipulation, weaponized self-pity, and claims to victimhood are not action. Gun laws are pretty much the same post-Kids, and who can count the number of mass shootings since Parkland? Apart from lip service by the Democrats, there is no effective gun control legislation on the stove. Yes, yes, conversations were started and awareness was raised, but Moore falls into the same naïve hole the Parkland kids live in, mistaking noise and political stunts (like being Michael Moore) for real change.
Moore of course will never make a follow-up film, but here’s what it would contain if someone else ever did.
Emma González is famous for standing in silence at a lectern for a little over six minutes to commemorate how long it took for 17 people to be killed during the shooting. In 2018, Madonna, the Michael Moore of the pop industry, even sampled Emma’s voice for an album. González later advocated for Joe Biden, thoughtfully tweeting “a vote for Donald Trump is a vote for fascism.” Today she has become a hollow woke caricature. She’s changed her first name to “X” because “I don’t want people thinking that they’re my friends just because they know my name.” X is pursuing a degree in activism, with classes such as Manifestos, Alternatives to Capitalism and Socialism, Post-Colonial Literature; and Theory, Black Social and Political Thought, and Global Politics/Radical Comics at the prestigious New College of Florida in Sarasota. How do we know all this? X is back in the media for the first time in almost four years, pimping a movie on the Jimmy Fallon show about the her of almost four years ago.
David Hogg was the skinny white Parkland kid with the Brylcream hair and oddly triangular face. He was raptured out of the swamps of Florida to attend Harvard after the shooting. In addition to promoting the same film as X, Hogg also started a semi-defunct pillow company in 2021 to challenge Donald Trump ally Mike Lindell and his My Pillow company. The Hogg pillow company quickly amassed more than 80,000 Twitter followers but not so many sales. The whole thing was so egregiously awful that Cameron Kasky, a fellow Parkland survivor, attacked Hogg, saying “To those of you who marched, donated, lobbied, and called for change… I’m so sorry this is what it turned into. This is embarrassing. Welcome to America, everything ends up a grift.”
And right, be sure to check out the merch on the March for Ours Lives website. The #MarchForOurLives “Stop Gun Violence” T-shirt is about as likely to help stop gun violence as it is likely to stop a bullet for the wearer. And for the record, Colin Kaepernick, who makes a cameo in Moore’s movie, has seen his own net worth grow to some $20 million via paid endorsements for McDonald’s, Jaguar, Electronic Arts, and MusclePharm. Moore’s film was originally funded by everyone’s favorite carnivore, Harvey Weinstein. Michael Moore himself owns nine homes and is worth $30 million, a helluva way to help redistribute wealth, to himself.
Michael Moore should take his inspiration for his next film from that Parkland Kid statement, “Welcome to America, everything ends up a grift.” It’s the only true statement in this whole mess. It was never about actually doing something about guns, it never is. It’s about getting a free ride into Harvard, pimping a documentary, starting an odd pillow business. It is all always about profiting personally from victimhood, the retirement strategy of most Americans under 40 today, and of Michael Moore.
What was intended by Moore in 2018 as a rallying point, a radical film to drive young people into the streets to defeat National Socialism, looks just a few years later like another contribution to a generation’s cynicism. How many heroes pumped by the media — Robert Mueller, James Comey, Michael Avennati, and Michael Moore come to mind — need to implode before young people figure out the grift and turn away. Now that might be the start of the movement Michael Moore imagines he’d be the guy to lead.
Fahrenheit 11/9 is irregularly available on Netflix. Scroll past the Pride section, Black Stories, and Marginalized Voices down to the part that might be labeled “Stuff You Can At Least Tolerate When Your Friends Come Over and No One is Talking to Each Other.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
What is Section 702 and Why Should You Fear It
You’ve been warned — a fight over the U.S. government’s ability to spy on its own citizens is coming to Congress. Section 702 is up for renewal again in December.
Section 702 grew out of an illegal post-9/11 program called Stellarwind exposed by NSA whistleblower Tom Drake. It refers to a provision of the United States Foreign Intelligence Surveillance Act (FISA) that was enacted in 2008. It authorizes the U.S. government to collect the communications of non-U.S. persons located outside of the United States for the purpose of obtaining foreign intelligence information. But the program also allows for the incidental collection of information about U.S. persons who may be communicating with the targeted foreigners. Section 702 was renewed by Congress in 2018 with the passing of the FISA Amendments Reauthorization Act. This reauthorization extended the authority for Section 702 for another six years, through December 31, 2023, hence the looming fight.
The reauthorization included some modifications to the program, including new reporting requirements and limitations on the use of information obtained under Section 702 in certain types of legal proceedings. The law also included some new privacy protections, such as the requirement for a warrant to search for and use information related to U.S. persons in certain cases. The latter only applies to the FBI, which is required to obtain a court order to review anything that comes up in response to queries using American identifiers that are purely for a criminal investigation with no link to national security. Oh yes, that’s right: Section 702, which was written to stop another 9/11, is widely used by domestic law enforcement as part of regular police work.
But the most controversial aspect of the law remains the “Three Hops Rule.” If you are speaking with a foreigner outside the U.S. by phone, then that makes everyone else you speak with, American or not, eligible for monitoring. That’s one hop. Everyone they talk to is also eligible, that’s two hops, and so forth. The number of people subject to legal surveillance under Section 702 thus grows geometrically every time someone sends an email, like some sick version of the old game Six Degrees of Kevin Bacon. Suddenly one communication sweeps in many, often unrelated, persons, and the Fourth Amendment’s right to privacy is reduced to dryer lint because no warrants are generally needed and little if any oversight is applied. The scooping up of American communications is now (who says the Feds have no sense of humor) referred to as “incidental collection” even though it is quite purposeful.
The two things, three hops and Section 702, were never intended to be used together but certainly are. Technological advances, primarily the internet and fiber-optic lines, made foreigners’ messages available on domestic U.S. networks — the routing of a communication from Beijing to London passes through America. Since the Reagan years, the NSA, with the help of communications companies, has been able to vacuum up in bulk, without targeting anyone, messages that both originate and terminate abroad as they travel across American networks.
The potential for abuse is underscored by the scale of all this in an age when almost all of our communications are electronic (including phone calls) and when hubs of communication (Google and email providers, most of whom cooperate directly with the government to collect and hand over your data, as exposed by NSA whistleblower Edward Snowden) concentrate more and more of what we say, read, watch, and buy into fewer nodes to tap. In 2021, there were more than 230,000 foreign targets of Section 702 warrantless surveillance (that number multiplied by the three hops rule, of course.)
In contrast, the government obtained FISA court warrants to eavesdrop on about only 300 Americans or noncitizens on domestic soil. Proponents of Section 702 argue obtaining warrants for all those foreigners would sharply curtail the intelligence the government is able to gather. Applying for court orders requires time and resources, and then there are those nasty legal and evidentiary standards to be met. Because everything is highly classified, absent whistleblowers, public oversight is limited. One declassified audit showed the FBI misused the system for routine employment checks and other unauthorized sneak peeks. The FISA court, in an example of what passes as oversight, criticized the FBI for “widespread violations” of rules intended to protect Americans’ privacy but still signed off on the program’s continuance.
“Section 702 allows mass warrantless surveillance of individuals’ communications, including Americans. It embodies a long history of government overreach and abuse, including the most recent oversight report released in December 2022, which found that the FBI conducted numerous unlawful searches for Americans’ information,” Kathleen McClellan of ExposeFacts.org told The Spectator.
One idea being floated is to separate the collection of raw material from the query process, i.e., actually using the material. A revised Section 702 would continue to allow mass monitoring, but before the NSA or FBI, et al, could search that collected date for Americans by identifier (name, Social Security number, etc.) they would need a warrant to show probable cause. Something like this change might be the key to seeing Section 702 reauthorized, as House Judiciary Committee members focus on civil liberties while members of the Intelligence Subcommittee tend to be more supportive of surveillance powers. The fear-mongering ducks are already being lined up. General Paul Nakasone, head of the NSA and Cyber Command, said 702 powers have helped the U.S. government stop planned terrorist plots and cyber espionage campaigns before they happen. “702 provides a critically important capability to the intelligence community as we face rising challenges from China and Russia, as well as threats from terrorism, cyber actors, and others,” Senate Intelligence Chair Mark Warner claims.
Congress is expected to rely heavily on the advice of the U.S. Privacy and Civil Liberties Oversight Board (PCLOB), an independent executive branch agency led by a bipartisan group of five presidentially nominated and Senate-confirmed Board Members. The Board is examining significant changes to the operation of the 702 program since their Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (2014) in order to provide an accurate description of the current program. The Board’s review covers selected focus areas for investigation, including but not necessarily limited to, U.S. person queries of information collected under Section 702, and ‘Upstream’ collection [data handed over from communication providers.] The Oversight Project also includes reviewing the program’s past and projected value and efficacy, as well as the adequacy of existing privacy and civil liberties safeguards. The changes made to Section 702 on the last renewal go-round in 2018 drew heavily from this report, a good indicator the PCLOB may influence the 2023 renewal process as well.
The bad news is most of the Fourth Amendment protections of Americans’ privacy disappeared in the aftermath of September 11, all in the name of fighting terrorism. There seems no question Section 702, one of the Fourth Amendment-busting laws, will be renewed. The hope for civil libertarians and privacy advocates alike in salvaging some rights lies in marginal changes to the law along the line of PCLOB recommendations to limit use of Americans’ identifiers as query terms and to force NSA and others to disclose more of the extent of the program’s use.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Jimmy Carter’s Gettysburg Address
The word malaise, a general feeling of uneasiness whose exact cause is difficult to identify, should be starting to creep in to discussions. It’s a word, albeit like most everything these days, politically-loaded, after its use by President Jimmy Carter in 1979 to describe the country he could not figure out to how lead.
Carter’s specific use of the term focused on the energy crisis, when OPEC and the Iranian Revolution monkeyed with America’s oil supply and Americans could not simply buy as much cheap gas as they wanted for their huge cars. It can sound trite, but it was a crushing blow to the American spirit, as somebody got the best of us while we stood aside hopeless. But Carter saw something much deeper than lack of cheap gas was wrong. Not just an oil shortage to manage, but a recession of hope, a crisis of confidence that someone would have to lead America out of. He perceived we were tired, worn down, unable to come together in common purpose to fix something. He was right then; how about right now?
It would be interesting to hear what Carter thinks about Joe Biden and 2023, where lots of things don’t work well. Flights don’t fly. Inflation returned. Gas is expensive in ways 1979 never could have imagined. Supply chain problems mean Americans are since WWII rationing getting used to hearing “We don’t have any and aren’t sure when we will.” Under/unemployment plagues us as Covid tore the wool off many Americans’ eyes about how little meaningless jobs for sub-living wages contributed to their piggy banks or their sense of self-worth.
There appears no definitive end to Covid, with little hope the economic devastation caused by mismanaged restrictions will ever be addressed. There is a declining sense Covid is a problem that can be managed as it has been in much of the world (see Europe, especially Scandinavia.) The conclusion is no one is really in charge who cares. Economic inequality has risen to where there are two systems, one for the wealthy and one for most of the rest of us, for everything. Education, healthcare, travel, shopping, how you are treated by the law, and where you can eat or entertain yourself. Diseases of despair, suicide, alcohol, and drug overdoses, drive a drop in our life expectancy. America is the only developing nation with a rising maternal death rate. We suffer on average more than one mass shooting a day. Is there anyone who can claim, in the American tradition, that our lives are getting better?
Looking for leadership, Americans come up short. The best our system could produce last election was two geriatric candidates. Biden has done little to move the nation past Covid, instead choosing to stand there as it petered out in most places. He hid behind our national exhaustion with Afghanistan to not suffer a greater political defeat over the botched Gotterdammerung in Kabul. His open borders policy created a massive humanitarian crisis, and a growing political one as an unknown number of immigrants play a version of the Squid Game to flood America. The Border Patrol reports 200,000 encounters with migrants along the U.S.-Mexico border this summer, with some of the highest monthly totals since Bill Clinton was president.
The president can’t even exercise leadership over his own party, and it appears his signature infrastructure bills and social spending initiatives are more symbolic than transformational. In the background, police reform legislation failed, and most defunded departments have been refunded to face down rising crime. “Disappointed” is likely the term most Biden voters would be apt to use.
America alongside all this has become a deeply cynical place. We once were to the annoyance of most of the world an endlessly optimistic place. We didn’t always know how to solve problems but we were confident we would solve them. Now we take for granted AOC and the media would be at the border for the Trump Kids in Kages spectacular but missing when an even worse situation unfolds on Biden’s watch. We roll our eyes when the media tells us what we’re hearing isn’t what we’re hearing but “Let’s Go, Brandon” instead. MSM will print any Trump gossip but not one actual Hunter Biden email.
All of this bleeds over into how we interact with each other. Never mind the street fights over whether black lives matter, or the hand-to-hand combat on planes, in restaurants, and at Walmart. We don’t discuss things, never mind disagree because we don’t just hate ideas, we hate the people who hold those ideas. When we run out of big issues we discover microaggressions. We enjoy as classist blood sport how businesses care so little about their employees they’ll fire them if a Karen among us makes a scene. We video everything in hopes of settling matters by embarrassing someone virally.
Carter was a decent man, if a poor politician. Seen the latest front-page Carter Center scandal? Hear about the six figure fees former president Jimmy Carter pulls in from shady foreign companies? Maybe not. Many feel Carter has been a better ex-president than he was a president. His Carter Center focuses on impactful but unglamorous issues such as Guinea worm disease. When Carter left office, the disease afflicted 3.5 million people. Now it’s expected to be only the second disease, after smallpox, to ever be eradicated worldwide. Until about yesterday Carter still donated a week of his time yearly to Habitat for Humanity. Not a photo-op, Carter goes out without the media in tow and hammers nails. Carter also tirelessly monitors elections in nascent democracies, lending his stature as a statesman to that work over 100 times. Summing up his own term in office, Carter said “We never dropped a bomb. We never fired a bullet. We never went to war.” That was the last time since 1977 a president could make that claim.
Jimmy Carter’s “Crisis of Confidence” malaise speech, delivered from the Oval Office on July 15, 1979, has since become to many a symbol of Democratic defeatism. The speech was controversial at the time because it was seen as overly pessimistic and critical of the American people. However, in retrospect, many people view the speech as a courageous and honest assessment of the problems facing the country. But how prescient was Carter in 1979? The seeds he saw being planted have now grown to sad, desperate fruition. What he said then might well describe where we are now:
“There are two paths to choose. One is a path I’ve warned about tonight, the path that leads to fragmentation and self-interest. Down that road lies a mistaken idea of freedom, the right to grasp for ourselves some advantage over others. That path would be one of constant conflict between narrow interests ending in chaos and immobility. It is a certain route to failure.
“All the traditions of our past, all the lessons of our heritage, all the promises of our future point to another path — the path of common purpose and the restoration of American values. That path leads to true freedom for our nation and ourselves. We can take the first steps down that path as we begin to solve our… problem.”
For all he foresaw in his ferocious tenderness towards America, Carter failed to find a way to lead, and in 1980 suffered complete election defeat at the hands of someone who promised he would. As Carter did not create fully the malaise he spoke about, Biden alone certainly did not create the current malaise in America. But his failures, far too many in too short a time, have not helped fix it. Cheering on Ukraine is not the same as cheering for America. Without Jimmy Carter’s Gettysburg address, telling us where we are and what we have to do, we might forget that.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Ukraine is America’s Afghanistan More Than Russia’s
The thinking in Washington goes like this: for the “low cost” of Ukrainian lives and some American dollars, the West can end Putin’s strategic threat to the United States. No Americans are dying. It’s not like Iraq or Afghanistan ’01-’21. This is post-modern, something new, a clean great power war, Jackson Pollack for war. Getting a lot of foreign policy mojo at little cost. It’s almost as if we should have though of this sooner.
Um, we did. It didn’t work out past the short run and there’s the message. Welcome to Afghanistan 1980’s edition with the U.S. playing both the American and the Soviet roles.
At first glance it seems all that familiar. Russia invades a neighboring country who was more or less just minding its own business. Russia’s goals are the same, to push out its borders in the face of what it perceives as Western encroachment on the one hand, and world domination on the other. The early Russian battlefield successes break down, and the U.S. sees an opportunity to bleed the Russians at someone else’s bodily expense. “We’ll fight to the last Afghani” is the slogan of the day.
The CIA, via our snake-like “ally” in Pakistan, floods Afghanistan with money and weapons. The tools are different but the effect is the same: supply just enough firepower to keep the bear tied down and bleeding but not enough to kill him and God forbid, end the war which is so profitable — lots of dead Russkies and zero Americans killed (OK, maybe a few, but they are the use-and-forget types of foreign policy, CIA paramilitary and Special Forces, so no fair counting them.) And ironic historical bonus: in both Afghanistan 1980s and Ukraine, some of the money spent is Saudi. See the bothersome thread yet?
Leaving aside some big differences that enabled initial successes in Afghanistan, chief among which is the long supply lines versus Ukraine’s border situation, let’s look at what followed early days.
Though NATO countries and others sent small numbers of troops and material to Afghanistan, the U.S. has gone out of its way to make Ukraine look like a NATO show when it is not. Washington supposedly declared support for Ukraine to preserve and empower NATO (despite the fact that Ukraine was not a member.) Yet, to keep Germany on sides in the Russian-Ukraine war, Washington (allegedly) conducted a covert attack on Germany’s critical civilian infrastructure that will have lasting, negative consequences for the German economy. Seymour Hersh reported the Nord Stream pipeline connecting cheap Russian natural gas to Europe via Germany was sabotaged by the United States. An act of war. The destruction of an ally’s critical infrastructure, and no doubt a brush back pitch carefully communicated to the Germans alongside a stern warning to stay put on sanctions against energy trade with Russia. It’s a helluva thing, blowing up the pipeline to force Germany to color inside the lines NATO (actually the U.S.) laid out. This, in addition to the U.S. treating NATO countries as convenient supply dumps and little more, shows that NATO will emerge from Ukraine broken. One does also wonder if the future of Europe is at stake why the greatest concern is expressed in Washington and not Bonn or Paris.
As with Afghanistan, there are questions if we Americans will ever be able to leave, about whether Colin Powell’s “Pottery Barn” rules applies — you break it, you bought it. President Zelensky, portrayed in the West as a cross between Churchill and Bono, in actuality was a comedian and TV producer who won the 2019 Ukrainian presidential election. Zelensky’s popularity was due in part to his anti-establishment image and promises to fight corruption and improve the economy. He was also aided by his portrayal of a fictional president in a popular TV show, which helped to increase his name recognition and appeal to young voters.
Zelensky was preceded by the Ukrainian Revolution, also known as the Euromaidan Revolution, which began in late 2013 as a series of protests in response to then-President Viktor Yanukovych’s decision to reject an association agreement with the European Union and instead pursue closer ties with Russia. The protests grew in size and intensity, with demonstrators occupying the central Maidan Nezalezhnosti square in Kiev, demanding Yanukovych’s resignation and new elections. In February 2014, the situation escalated when Yanukovych’s security forces cracked down on protesters, resulting in violent clashes that left dozens dead. This led to Yanukovych fleeing the country and a new government being formed in Ukraine. The revolution also sparked tensions with Russia, which subsequently annexed Crimea and supported separatists in eastern Ukraine. None of those problems goes away even if the Russia army retreats to its pre-invasion borders. The notion that there is nothing going on here except a rough land grab by a power-made Putin is shallow and incomplete.
What’s left are concerns about the level of corruption in Ukraine, and the U.S.’s role in addressing it. Despite the U.S. providing significant financial aid to Ukraine, there have been reports of corruption and mismanagement of funds. Some have argued that the U.S. has not done enough to address these issues, and has instead turned a blind eye in order to maintain its strategic interests in the region. America’s history with pouring nearly unlimited arms and money into a developing nation and corruption is not a good one (see either Afghanistan, 1980s or ’01 onward.) Corruption can only get worse.
A great fear in Afghanistan was arms proliferation, weapons moving off the battlefield into the wrong hands. Whether that be a container of rifles or the latest anti-aircraft systems, an awful lot of weapons are loose in Ukraine. In the case of Afghanistan, the real fear was for Stinger missiles, capable of shooting down modern aircraft, ending up in terrorist hands. The U.S. has been chasing these missiles through the world’s arms bazaars ever since, right into the Consulate in Benghazi. It is worse in Ukraine. America’s top-of-the-line air defense tools are being employed against Russian and Iranian air assets. What would those countries pay for the telemetry data of a shoot down, never mind actual hardware to reverse engineer and program against? There are no doubt Russian, Chinese, Iranian and other intelligence agencies on the ground in Ukraine with suitcases full of money trying to buy up what they can. Another cost of war.
It is also hard to see the end game as the demise of Putin. This would mean the strategy is not fight until the last Afghani/Ukrainian but to fight until the last Russian. The plan is for that final straw to break, that last Russian death, to trigger some sort of overthrow of Putin. But by whom? Trading Putin for a Russian-military lead government seems a small gain. Look what happened the last time Russia went through a radical change of government — we got Putin. In Afghanistan, it was the Taliban x 2.
History suggests the U.S. will lose in a variety of ways in Ukraine, with the added question of who will follow Putin and what might make that guy a more copacetic leader towards the United States. As one pundit put it, it is like watching someone play Risk drunk.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Iran’s Foreign Policy: A Complex Landscape
The Nation asked of President Joe Biden “Is America back?” If it is, what is its signature accomplishment, the marker that Pax Americana or something similar worthy of Latin, is back?
Certainly nothing here at home. Gas flutters at record levels, as much as $5 a gallon in places with all the side effects of higher grocery prices and supply chain missteps. Employment-wise, jobs of some sort are there but lack in quality and salary such that many people find unemployment a better deal than underemployment.
Abroad Biden stretched NATO to its threads by threatening Ukrainian membership in the alliance, and ignoring objections to the alliance’s expansion across Russia’s political spectrum, contributing to an invasion few thought would happen and no one in the West outside of Washington wanted. The result is increasingly divided “allies” and massive expenses in arms and lives without much of a defined endgame. This foreign policy disaster-in-progress stands next to Biden’s other signature foreign policy action, withdrawal from Afghanistan in a haphazard way such that it displayed America’s confusion and fugue state more than its power. The world outside the Beltway seems well aware the outcome of more than 20 years of war and occupation is to return the country to its pre-September 11 state of medieval feudalism even if we chose not to talk much about it here at home.
That’s not much to run on for the second term Biden all but announced his candidacy for in his State of the Union address. Hopes to make better progress here at home are dependent mostly on factors outside America’s control, to include the price of oil (thanks to a Saudi Arabia who brushed back Biden) and any return of Covid. Biden needs and might just be able to find a way to make peace with Iran, however, and score a major foreign policy victory, the kind of typical second term action he could pack into the end of his first term. The world might just forgive some sins (the return of U.S.. forces to Somalia and the endless war in Yemen the U.S. supports, for example) if it sees somnolent American diplomacy dragged out of the closet after six years and put back to use. America’d be back.
The obstacles to some sort of agreement with Iran are formidable. Iran’s own foreign policy goals are nearly as mixed up as America’s, with the country’s leaders pursuing a complex and often contradictory set of objectives. From supporting armed groups in the Middle East to engaging in negotiations with the West, Iran’s approach to foreign affairs has been shaped by a variety of factors, including its history, ideology, and geopolitical interests. To achieve any sort of agreement, Biden would have to navigate all of the above.
One of the most notable aspects of Iran’s foreign policy is its support for armed groups in the region. Iran has long been accused of backing militant organizations, including Hezbollah in Lebanon and Hamas in the Palestinian territories, as part of its efforts to project power and influence beyond its borders. This has led to increased tensions with Iran’s neighbors, particularly Israel, and has fueled concerns about the country’s intentions in the region. Iran controls Iraq (another American foreign policy blunder, about half of which was under Biden’s vice-watch) and complicates Syria and Yemen. But the complexity of the problem just adds to the value to a solution if it can be found.
Another key aspect of Iran’s foreign policy is its relationship with the West, a fork in the road Biden has the most influence on. The country has been under international sanctions for decades, with the United States and its allies seeking to pressure Iran to limit its nuclear program and curb its support for armed groups (how’s that sanctions regime been working out?) After negotiations with the West during the end state Obama administration, including the 2015 nuclear deal, lifted some of the sanctions in exchange for restrictions on Iran’s nuclear program, the deal went south, the United States reimposed most sanctions, and Iran has responded by resuming some of its nuclear activities, leading to fears of a wider conflict.
Iran’s foreign policy is shaped by its self-understanding it is a major player in the Middle East, something the U.S. has been very slow to acknowledge. The country has long sought to be a regional power, and has used its military, economic, and political leverage to advance its interests in the region, most notably securing a client state in Iraq. This has led to increased tensions with Saudi Arabia and other Gulf states, which view Iran as a major threat to their security. But wouldn’t it be a nice gesture to the Saudi’s, who raised oil prices and refuse to crank up production to match that lost in the Ukraine war, to see the U.S. sit down with one of its adversaries?
So what would it take for Biden to make some sort of deal with Iran?
Sanctions relief: Iran would likely seek relief from the economic sanctions that have been imposed on the country, while the U.S. would want to ensure that any sanctions relief is conditional and proportional to Iran’s compliance with the terms of the deal. This is tricky business, but was more or less done in 2015 and is the actual stuff of diplomacy. The economic sanctions imposed by the U.S. and other countries have had a significant impact on Iran’s economy, reducing its ability to access the global financial system, sell oil, and purchase from other countries. This has led to a shortage of foreign currency, inflation, and a decline in living standards for many Iranians. Biden would have to make clear Iran can choose to be a threshold nuclear power and suffer indefinitely for it, or rejoin the global system and profit from it.
Nuclear restrictions: Both sides would need to agree on the extent to which Iran’s nuclear program should be restricted and monitored, including limitations on uranium enrichment and the size of its nuclear stockpile. Again, mostly taken care of in 2015. Biden would need to fend off Israel entreaties to destroy Iran’s nuclear capabilities rather than trust Tehran to disarm them. Iran at the negotiation table would likely demand some sort of pullback of Israeli nukes from the Gulf.
Timelines: A clear timeline for lifting sanctions and implementing restrictions on Iran’s nuclear program is important to avoid stalling the agreement.
Verification mechanisms: Both sides would need to agree on the mechanisms for verifying compliance with the terms of the deal, including regular inspections and monitoring.
Regional involvement: As the situation in the Middle East is complex, regional actors, such as the Gulf countries, would need to be involved in the negotiations and have their concerns addressed. This is likely the most difficult part of the deal, bringing the regional actors into line, something a weakened America may not have the diplomatic cojones to make happen. Yemen however is a possible bargaining chip in several directions, and lessening the nuclear threat overall in the Gulf remains a goal worth pursuing.
The outcome of any potential negotiations will depend on a number of factors, including Iran’s willingness to engage in constructive talks, the level of sanctions relief and other incentives the U.S. is willing to provide, and the international community’s support (particularly a reluctant Saudi Arabia and an even more reluctant Israel) for the negotiations.
The U.S. and Iran have had a complicated relationship and there have been significant obstacles to reaching a nuclear agreement in the past. However, Biden has expressed a willingness to re-engage with Iran and revive the 2015 nuclear deal. He has also indicated that his administration is open to diplomatic efforts to address concerns about Iran’s nuclear program and other issues a la carte. For a president looking to take big issue success into the next election, it just might be worth a chance.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Apocalypses Now, Afghan Redux Edition
It is altogether fitting and proper the final images for most Americans of their war in Afghanistan were chaotic airport scenes, all too familiar to many (Vietnam!) and all too alien to others (We lost? Nobody told me.) It is important two decades of smoldering ruin of American foreign policy — four presidents, six administrations, untold Afghan dead, 2,456 American dead, 20,752 American wounded, and some trillions of dollars spent, the money as uncountable as the Afghan dead and just as meaningless except as an aggregate. There will be deniers emerge in the decades to come, so a final set of pedestrian images of failure are necessary to rebuke them in advance. History has no intent on being being kind here, nor should it considering the scale and cope of the folly.
The final judgement on paper at least rests with the Special Inspector General for Afghan Reconstruction (SIGAR), the body set up by Congress to monitor the progress over twenty-some years of the national building project America set out to do in 2001. SIGAR just wrote a report entitled Why the Afghan Government Collapsed summing up its work. Here’s the bottom line up front, as the military likes to say: the SIGAR report mentioned Iraq, where a similar nation building effort failing for similar reasons, only three times in 60 pages, one a footnote. Nobody learned any lessons there and it is doubtful as the Blob salivates over rebuilding Ukraine even as this is written that any lessons will be carried forward from Afghanistan. Vietnam begat Iraq which begat Afghanistan which will all be forgotten for the next one. Vietnam was mentioned in the report once only, “U.S. efforts to build and sustain Afghanistan’s governing institutions were a total, epic, predestined failure on par with the same efforts and outcome in the Vietnam war, and for the same reasons.” You’d think a statement like that might be worth a bit of expansion.
SIGAR tells us the U.S. failed in Afghanistan in large part because “The Afghan government failed to recognize that the United States would actually leave.” There was thus never a push to solve problems or drive peace talks, simply a well-founded belief the American money which fueled abject corruption would continue indefinitely. Standing in the Tim Horton’s/Burger King at Bagram Air Base, thinking through lunch options before a trip to the air conditioned gym with its 75 treadmills in 2009, it all seemed a reasonable assumption. Left unspoken by SIGAR was that the Taliban saw just the opposite, that eventually, someday, maybe in a long time but not indefinitely, the Americans would have to leave. Same as the Alexander the Great, same as the British, same as the Soviets. That is one of the wonderful things about the SIGAR report, its historical portability. Change the dates and some adjacent facts and it reads well to describe the British ouster, or the Russian. The failure to win hearts and minds, the great costs to create the appearance of conquering great swathes of territory, the ability of the Afghan plains to absorb the blood of the conquerors, the endemic corruption of the puppet governments, it was all similar enough.
SIGAR ignores much of what was happening in the field to focus on intra-USG/Afghan government problems, as one might comment effusively on a particularly pretty hat and fail to notice the woman wearing it was naked. Before the collapse of the Afghan government in August 2021, the primary U.S. goal in Afghanistan we’re told was “to achieve a sustainable political settlement that would bring lasting peace and stability.” But the Taliban’s refusal to talk to the Afghan government without first negotiating with the United States was an obstacle to that goal. A similar occurrence happened in 2018, when the United States began direct talks with the Taliban. The U.S. direct negotiations with the Taliban excluded the Afghan government, weakening the negotiating position of the Ghani government and strengthening the Taliban. As Hugo Llorens, former U.S. special chargé d’affaires for Afghanistan, summarized, “Just talking to the Taliban alone and excluding our allies proved the Taliban’s point: The Afghan government were our puppets, you didn’t need to talk to them. You only need to talk to the Americans.”
SIGAR then notes with the obviousness of a car wreck “The U.S.-Taliban agreement appeared to have emboldened the Taliban. All the Taliban really did was agree not to attack U.S. forces on their way out.” As a result, the agreement likely led Taliban leaders to seek a resolution to its conflict with the Afghan government on the battlefield rather than through peace talks. If this wasn’t a family report, you’d expect a “no sh*t” to follow. All sides were befuddled. Former Ambassador Michael McKinley told SIGAR that the Afghan president consistently suggested development goals that were “completely off the charts,” and that his apparent “separation from Afghan reality” was concerning. He was “living in fantasyland.”
The key elements of the fantasy was the reconstruction effort, the idea that rebuilding Afghanistan via $141 billion in roads and schools and bridges and hardware stores would gut the Taliban’s own more brutal hearts and minds efforts. That was the same plan as in Iraq only minutes earlier, where between 2003 and 2014, more than $220 billion was spent on rebuilding the country (full disclosure: I was part of the Iraqi effort and wrote a book critical of the program, We Meant Well, for which was I was punished into involuntary retirement by the U.S. State Department.) Nonetheless, the Iraqi failure on full display, the United States believed that economic and social development programming would increase support for the Afghan government and reduce support for the Taliban insurgency (the log line for the war script.)
However, SIGAR writes, “the theory that economic and social development programing could produce such outcomes had weak empirical foundations.” Former Ambassador McKinley noted, “It wasn’t that everyone, including conservative rural populations, didn’t appreciate services… But that didn’t seem to change their views.” As the Army War College told us, “This idea that if you build a road or a hospital or a school, people will then come on board and support the government — there’s no evidence of that occurring anywhere since 1945, in any internal conflict. It doesn’t work.” As Scott Guggenheim, former senior advisor to President Ghani, told SIGAR, “Building latrines does not make you love Ashraf Ghani.” But that was indeed the plan and it failed spectacularly, slow over twenty years then all at once.
There is not justification to blame SIGAR for anything, though the temptation to mock their prose is great given the importance of the mess they sought to document. But no fair. The blame lies with six administrations’ worth of president’s and the men and women who created the Afghan policy. The great news is now, having laid this all out in black and white, we can set the SIGAR report on the shelf alongside a similar one for Iraq (where the watchdog was creatively called SIGIR, Special Inspector General for Iraq Reconstruction) knowing it will never, ever ever happen this way again, promise.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Lack of Oversight at Wuhan Lab Raises Five Questions to Ask NIH
The United States paid for the work that may have created the Covid virus. That research, a virus genetically engineered for the highest possible infectivity for human cells, was subcontracted to the Chinese at Wuhan by an American organization named EcoHealth. And now a new Office of the Inspector General (OIG) report says the National Institute of Health, the originator of the grant, failed to exercise its oversight over EcoHealth, and EconHealth over Wuhan. It’s not a smoking gun but it is pretty damn close. Senator Rand Paul will take up the contents of the OIG report soon in hearings. Here are 5 questions he may want to focus on.
Question 1: Though the new OIG report does not mention Covid specifically, it is scathing in its denunciation of EcoHealth and the NIH in failing to properly oversee the gain-of-function research it paid for at the Wuhan National Lab in China. Not touched on at all is the question of why bioweapon engineering-type research was subbed out to China, an ostensible adversary of the U.S. So why? Did NIH not know the editorial board of the lead researcher’s virology journal included members of the Chinese military?
Question 2: OIG stated “Despite identifying potential risks associated with research being performed under the EcoHealth awards, we found that NIH did not effectively monitor or take timely action to address EcoHealth’s compliance with some requirements. Although NIH and EcoHealth had established monitoring procedures, we found deficiencies in complying with those procedures limited NIH and EcoHealth’s ability to effectively monitor Federal grant awards and subawards to understand the nature of the research conducted, identify potential problem areas, and take corrective action. Using its discretion, NIH did not refer the research to HHS for an outside review for enhanced potential pandemic pathogens… With improved oversight, NIH may have been able to take more timely corrective actions to mitigate the inherent risks associated with this type of research.” One timely corrective action missed was not insisting EcoHealth produce a required progress report about its subgrants in the summer of 2019, just months before the advent of the coronavirus.
What may have been missed?
Though gain-of-function research does not leave a physical marker to prove origin, to date, there is no evidence Covid was of a natural origin (this is surprising because both the SARS1 and MERS viruses [related to Covid] had left copious traces in the environment.) There is much to show it was not. We do know Wuhan conducted gain-of-function research aimed at doing what Covid does, making a virus originally not dangerous to humans into a super-infector designed to spread quickly while resisting then-existing cures and vaccines. We know the first cases of the virus were in Wuhan, and include researchers at the virology lab who were infected in November 2019. We know precautions at the lab were insufficient to contain the virus. In a murder case this would be enough to show means and method beyond a reasonable doubt.
Question 3: And it is not as if there wasn’t enough bad stuff already out there that NIH and EconHealth might have had their guard up instead of exercising slack oversight. The Wuhan lab was already a nexus of attention pre-pandemic. Following a controversial September 2019 corona lecture the lead researcher gave in Mozambique, Wuhan pulled their virus database offline. The Chinese government still refuses to provide any of its raw data, safety logs, or lab records (the OIG report criticized EcoHealth’s inability to obtain scientific documentation from Wuhan despite having paid for it with U.S. tax dollars.) Another Wuhan scientist was forced to leave a Canadian university for shipping deadly viruses, including ebola, back to China. The lab also tried to steal intellectual property regarding remdesivir, a class of antiviral medications used to treat Covid prior to the vaccine.
As early as 2018, Wuhan alarmed visiting U.S. State Department safety inspectors. “The new lab has a serious shortage of appropriately trained technicians and investigators needed to safely operate this high-containment laboratory,” the inspectors wrote. They warned the lab’s work on “bat coronaviruses and their potential human transmission represented a risk of a new SARS-like pandemic.” The Chinese worked under mostly BSL2-level safety conditions far too lax to contain a virus like Covid.
So a key question for Senator Paul to ask is, given this background, why did the NIH fund a place like Wuhan at all?
Question 4: What was the role of EcoHealth and others in promoting the as yet-to-be-proved natural origin theory?
Now years after the pandemic began, Chinese researchers have failed to find the original bat population, or the intermediate species to which Covid might have jumped, or any serological evidence that any Chinese population, including that of Wuhan, had ever been exposed to the virus prior to late 2019. The search in China for the natural origin of the virus, the zoonotic animal-to-human spillover, included testing more than 80,000 different animals from across dozens of provinces. Not a single case of Covid in animals in nature was found (according to a study published in the journal “Nature Medicine” in March 2020, the Covid virus has genetic elements that are not commonly found in naturally occurring zoonotic viruses, suggesting that it may have been engineered or manipulated in a laboratory.) Chinese researchers did find primordial cases in people from Wuhan near the laboratory with no link to that infamous wet market China claims sold an infected bat eaten by Patient One.
So why does the natural origin theory persist? One of the strongest shows of support was a letter from dozens of scientists published in early 2020 in the British medical journal Lancet. The letter had actually been written not by the scientists, but by Peter Daszak, president of EcoHealth, the grantee who subcontracted with Wuhan. If the virus had indeed escaped from research they funded, EcoHealth would be potentially liable, as of course would the American government. EcoHealth went on to plant never-challenged stories in the MSM labeling anyone who thought Wuhan was to blame a conspiracy crank. Then, when the pandemic began, EcoHealth president Peter Daszak argued that criticizing the zoonotic hypothesis would only stoke xenophobia toward China.
Meanwhile, a Chinese-affiliated scientific journal at the University of Massachusetts Medical School commissioned commentary to refute that Covid originated in the Wuhan lab, the same position held by the Chinese government. Mirroring the American media, the journal called anything to the contrary “speculations, rumors, and conspiracy theories.” Chinese officials also objected elsewhere to any name, such as the Wuhan Flu, linking the virus to China.
Question 5: Did Dr. Anthony Fauci participate in a cover-up and/or did he perjure himself before Congress? In answer to Senator Rand Paul at a hearing in the midst of the pandemic, Fauci stated “you are entirely and completely incorrect—that the NIH has not ever and does not now fund gain-of-function research in the Wuhan Institute of Virology.” He appears to have committed perjury, as Fauci later admited “there’s no way of guaranteeing” American taxpayer money routed to Wuhan didn’t fund gain-of-function research, and the recent OIG report confirms it in fact did. Fauci also reversed himself completely in saying he is no longer convinced Covid developed naturally. Rep. Marjorie Taylor Greene accused Dr. Anthony Fauci of complicity in gain-of-function experiments and called for his firing as the nation’s top infectious disease expert. Fauci has since retired.
Optional Question 6, should Senator Paul call any member of the MSM to his hearings. “Do you now have any regrets over your coverage of the origins of Covid given all of this information, some which existed when you mocked laboratory origin as a conspiracy theory? Anything you’d do differently, such as tell the American public the truth?”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
ChatGPT: AI versus Me in Writing an Opinion Column
ChatGPT is an online tool created by the Open AI people that generates text. You prompt the software and out pours decent prose. Someday it is going to replace all of us, starting with people like me, we are told. So how good is it? Let’s see if the software can recreate a recent column from TAC. In the original hand-written column I presented four global memes with commentary. Let’s include the memes below in italics and see what CHatGPT has to say about each.The internet promotes democracy globally. I called the idea a grift and offered Twitter’s demise as a platform for free speech as an example. Here’s what our future overlords at ChatGPT had to say: “The internet has the potential to promote democracy and increase access to information around the world. By allowing people to connect and share ideas with others, the internet can facilitate the exchange of diverse viewpoints and facilitate the free flow of information. In this way, the internet can help to create more informed and engaged citizens, who are better equipped to participate in the democratic process. However, it is important to note that the internet also has its limits and can be used to spread misinformation and propaganda, which can undermine democracy. It is also important for individuals to use the internet responsibly and critically evaluate the information they come across online.”Points = 0 for sounding like a weak Tom Friedman column, and – 567 points for the fear-mongering bit about undermining democracy like a Democratic Party talking point. But at the same time it sure sounded pretty didn’t it? But I’m not worried about my job at this point.Countries with a McDonald’s don’t make war on one another. It was in fact that ever-so-journalistic New York Times columnist Tom Friedman who coined the phrase. He wrote the benefits of economic integration reduce the policy choices open to governments, making war—which disrupts that integration—so unattractive as to be practically unthinkable, part of all that end of history stuff that was once the vogue for the hive mind. The concept was built around everyone wanting to be more like us. It failed miserably. ChatGPT said “This statement, known as the ‘McDonald’s peace theory,’ suggests that countries that have McDonald’s restaurants are less likely to go to war with each other. However, this theory is not supported by empirical evidence. While it is true that McDonald’s and other international fast food chains are often seen as symbols of globalization and may be viewed as promoting international cooperation, the presence of these restaurants does not guarantee peace between nations. There are many other complex social, economic, and political factors that contribute to the likelihood of a country going to war. Additionally, the presence of McDonald’s restaurants in a country does not necessarily reflect the overall level of economic development or political stability of that country.”Here’s 567 points for laying out the theory more clearly than I did, and noting the complexity Friedman and I try to hide behind in our self-mocking/mocking. Clear advantage for ChatGPT.You have to be at war to be at war. I was going for the sarcasm in writing how U.S. weapons animate the conflicts with Ukraine, Yemen, and Syria, and U.S. assistance runs like code in the background of the Israeli-Iran power struggle across the Gulf. Sure sounds like war. ChatGPT misses the boat entirely by getting hung up in semantics and missing the specific examples, especially Ukraine: “This statement is not entirely accurate. War is generally understood to be a conflict between two or more countries or groups, often involving the use of military force. However, a country or group does not necessarily have to be in a state of formal war in order to be considered to be at war. There are many other types of conflicts and hostilities that can exist between countries or groups that do not meet the definition of war. For example, there may be ongoing disputes or tensions between countries that do not rise to the level of armed conflict, but which could still be considered to be ‘at war’ in a metaphorical sense. Similarly, countries or groups may engage in acts of sabotage, espionage, or other covert operations that are intended to disrupt or harm the interests of another country or group, even if these actions do not meet the formal legal definition of war.No points to either side for being predictable, albeit in opposite directions. Advantage me only because the Matrix bit expands my argument where ChatGPT is still checking Webster’s.U.S. leadership is near dead. That sarcasm thing again. I use examples from Covid, China, climate change, and NATO/Ukraine to make the point few nations are looking to the U.S. for global leadership on these global issues. ChatGPT, which appears to be programmed to avoid hard opinions, an unfair disadvantage in this contest, comes off weak: “This is a subjective statement that is open to interpretation. Different people may have different opinions about the strength and effectiveness of U.S. leadership in various contexts. It is important to note that the United States is a complex and diverse country, and its leadership and influence are expressed in many different ways. The United States is a major global economic and military power, and it plays a significant role in international affairs. However, it also faces challenges and criticisms from within and outside its borders, and its actions and policies are not always supported or welcomed by other countries and groups.”No points awarded once again because it appears ChatGPT is programmed to present a wishy-washy both sides argument. And who can argue with that? Advantage again to me because I am the one judging this.So while my original column eked out a one-on-one win here, it is obvious ChatGPT is a powerful tool. Imagine if the assignment was some simple blog text, or a high school level term paper on the “Causes of the Civil War” (I just tried it — ChatGPT nailed it, listing slavery and states’ rights are the main causes, with a neat paragraph on other economic and cultural factors. B+ or better level paper, probably would pass at the undergrad level with some footnotes and additional examples.)As to the value of ChatGPT itself for opinion writing, it works best when instead of trying to trick it into goofing up you work within its limits to pry out its best. Just like knowing a grammar and spell checker are there to help the human editor, who still makes stylistic choices, cuts for length, and calls for additional information, ChatGPT is a helper for a writer at present, not a way to produce a finished product.Actually, it is best to allow the software to speak for itself: “AI in writing opinion columns can potentially save time and improve efficiency by automating certain tasks or providing assistance with writing and editing. However, it is important to note that AI systems are not able to fully replace human judgement and creativity, and it is still necessary for humans to review and approve the final product before it is published. AI can be a useful tool for writers and editors, but it is not a substitute for human expertise and insight.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
A 2022 to Remember, Ukraine Edition
Looking back at 2022, at what did and did not happen, really tells us what was important, hindsight and all that.
Things that Did Not Happen in 2022
Joe Biden did not explain why the U.S. is at war in Ukraine.
Any nuclear war.
Regime change in Russia.
Ukraine winning the war.
The Russians running out of missiles, men and tires.
No American diplomacy has been tried to conclude the war in Ukraine.
Things That Did Happen in 2022
Among the things causing the greatest pain are the highest gas prices ever recorded in the United States, topping $5 a gallon across the country at one point. Gas purchases on their own may make up only a relatively small portion of most families’ budgets, but the spike in gas, oil and diesel prices has left businesses with higher costs that will force them to raise prices on their customers and pull back on new investments. It risks a slowdown in consumer spending, as households cut back on other expenditures. Energy is so crucial to the functioning of the economy broadly that the price increases bring along higher prices in many other sectors, only adding to inflation. Meanwhile, U.S.-imposed energy sanctions have played to Russia’s favor economically as oil prices rose. Things may come to a head as winter sets in in Germany and that natural gas from Russia is missed. But that is a domestic German problem the U.S. is likely to simply poo-poo away (once economic powerhouse and U.S. competitor Germany showed its first negative foreign trade imbalance since 1991, a nice bonus for America.) Things got so loose that “someone” needed to blow up the Nordstrom 2 pipeline to make the point with Germany that it may have to do without Russian energy to maintain the fiction sanctions will bring an end to war.
There can be no denying the greatest rise in food prices since May 1979, during the Carter administration. The biggest price rises were in the most basic of goods: egg prices soared 39.8 percent, flour 23.3 percent, milk rose 17 percent and the price of bread jumped 16.2 percent. Chicken prices jumped 16.6 percent, while meat rose over six percent. Fruits and vegetables together are up 9.4 percent. Overall, grocery prices jumped 13.5 percent. And don’t look for relief eating out; restaurant menu prices increased 7.7 percent. Eating at home is the answer, even though rent is up over seven percent. Why is everything so expensive? Food prices are affected by global events, such as the war in Ukraine, which affects the costs of wheat and other core commodities. Prices are biting above their weight because of the largest decline in real wages in four decades, since, you guessed it, the Carter days.
Declines across the stock market have affected not only those who invest or passively hold stock in 401(k)s but the parent companies they work for and shop with. This time last year, January 3, the first day of market trading in 2022, looked like just another day in a stock rally that began when Barack Obama was still president. The S&P 500 hit a record high. Tesla rose 13.5 percent and came close to its own all-time peak. That day turned out to be the end of a market that for over a decade had gone mostly in one direction, the S&P 500 rising more than 600 percent since March 2009. The S&P 500 began the year’s final trading session of the year almost 20 percent below where it was at peak. The year overall was the worst annual performance since when the housing crisis in 2008 took down the market. Central banks drove markets this year because of inflation, which was also pushed by energy prices and massive spending in Ukraine.
There’s some good news to add to the economic dullness and dismalness. NPR reports 70 percent of Americans polled support continuing a range of economic and military assistance to Ukraine. Those polled also supported the statement “that they might have to pay higher gas and food prices if we continue to assist Ukraine,” and said “we should stick with Ukraine for as long as it takes rather than urge them to cede some territory to create a cease-fire.” And the Blackrock investment firm has agreed to help rebuild Ukraine after peace breaks out. Blackrock already coordinates Ukrainian investment in the U.S.
Oh, and there’s more that happened in 2022 to remember. Many large cities experienced their worst crime waves since the 1990s. Covid remains a part of life. The southern border is a mess. Diseases of despair, suicide, alcohol, and drug overdoses have driven a drop in our life expectancy. But we’re not gonna blame all that on Biden, too?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
What is Title 42?
Title 42 is a clause of a 1944 Public Health Services Law which allows the U.S. government to prevent the entry into the country of individuals during certain public health emergencies, in this case asylum seekers who are sent to wait out their years of processing in Mexico, not in the United States, during Covid.
But to really understand Title 42 you have to understand what is happening at the southern border and what has happened with asylum claims. At play are potentially millions of aliens flooding into the United States. America’s asylum laws, meant to help the most vulnerable, have instead become a clogged backdoor for routine economic migrants. Title 42 was a very small step by the Trump administration toward restoring asylum to its correct role in American immigration policy. Biden seeks to go back to the “everybody in” system with all the consequences.
Asylum recognizes a person persecuted by his own country can be offered residence and protection by another country. The actual conditions vary considerably across the globe (the U.S. considers female genital mutilation grounds for asylum while in many nations it is a desired practice). But in most cases, asylum is offered to people who face a well-founded fear of persecution if sent home on account of their race, religion, nationality, political opinion, or social group. The definition of those five protected grounds have also varied greatly based on shifts in American domestic politics. Since 1994, for example, LGBT status has been, and remained under Trump, a possible claim to asylum. Domestic violence was granted consideration as grounds under the Obama administration, only to be rolled back under Trump.
But the reality of 2022 is the asylum system evolved into a cheater’s backdoor, a pseudo-legal path to immigration not otherwise available to economic migrants. They lack either the skills for working visas or the ties to qualify for legal immigration under America’s family reunification system. So they walk to the border and ask for asylum, taking advantage of previous administrations’ look-the-other-way “solution” to their ever-growing numbers. Affirmative asylum claims, made at ports of entry, jumped 35 percent pre-Covid.
It worked — for them. A Honduran on the border who says he simply came for a job is sent back almost immediately. However, should he make a claim to asylum, the U.S. is obligated to adjudicate his case. Since detaining asylum seekers and their families while the processes play out is expensive and politically distasteful (kids in cages!) until recently most asylum seekers were instead released into American society to wait out their cases. They then became eligible for work authorization when their cases extended past 150 days. The number of pending cases pre-Covid was 325,277, more than 50 times higher than in 2010.
Eventual asylum approval rates for all nationalities over the past decade average only 28 percent. Yet even after they’re denied, applicants can either refile as defensive asylum claims or disappear into the vast underground of illegals. Simply making a claim to asylum is often enough to live and work in America. Trump tried to change that with Title 42. Basically due to the possibility of flooding the country with Covid-positive asylum seekers, the threat of disease was invoked as a reason/excuse to keep the asylum seekers out of the U.S. while their cases drag on and on. Some asylum seekers and their families were detained at the border as a deterrent rather than released into society. But public outcry over caged families and the massive costs in housing and feeding sent the Trump people looking for another way to implement Title 42.
The change was for the Trump administration to negotiate for asylum seekers to wait out their processing times not in American society or an American detention facility, but in Mexico, through a program called the Migrant Protection Protocols. People at the border make their asylum claims, and are then nudged a step backward to wait for an answer in Mexico. The Department of Homeland Security also established an agreement with Mexico to accept all Venezuelan nationals who cross the border seeking U.S. asylum.
Title 42 stopped some 2.4 million would-be immigrants. The Biden administration now seeks to return to the old pre-Trump system, whereas asylum seekers would generally be set free inside the U.S. to go somewhere and wait out their processing. Nascent implementations of this system fell flat; U.S. Immigration and Customs Enforcement (ICE) estimates they already “lost” 150,000 migrants due to Biden admin’s lack of processing. These people are simply at large and likely forever will be within American society. As David Frum wrote approvingly at the time, “if liberals won’t enforce borders, fascists will.”
Biden’s administration tried to end the Title 42 policy this past April in court, but a Louisiana judge ruled proper administrative protocol must be followed to formally lift the program. Lower courts then issued a stay on ending Title 42 until December 21, extended now by the Supreme Court, and traffic backed up at El Paso and other prominent crossing points. Meanwhile, for those who are crossing now, the expulsion of migrants has continued while the protracted legal battle plays out among the government, migrants represented by the ACLU, and now, a group of 19 GOP-led states seeking to intervene in the case.
The states have argued that they will suffer “irreparable harm” if Title 42 ends and migrants stay in the U.S. for longer periods of time. Between 9,000 and 14,000 people are expected to cross the southern border each day after Title 42 ends (border crossings are now at around 7,000 a day.) The coalition of GOP attorneys general requested the court push back the Dec. 21 end date pending deliberations on an appeal. Migrants are waiting in Mexico, hoping Title 42 will be overturned and they can cross and stay in America. The final decision will likely lie with the Supreme Court.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Buy Peter’s Books on Amazon!
