I could not find a single reference to the bombings, or to the end of the war itself, anywhere in the American media. Even the Yazidis in Iraq, a big story a week ago, had yielded to the death of Robin Williams, who gave up his place at the top of the news to the shooting of a young African-American man in Missouri. There may be something else dominating the national agenda by the time you read this.
We get Japanese TV at my house, NHK, their version of public television, and the news shows from Japan on August 15 were dominated by stories about the war. Maybe it was because Japan hadn’t gone to war again since 1945, or maybe because the country was so devastated by the war, it wasn’t clear, but there was only the briefest of news recaps about global events other than the end of World War II. It mattered a lot to them.
In addition to all the expected black and white footage, there was a live talk show, featuring a well-known entertainer talking about her childhood experiences during the war. The entertainer, born male, identifies as female and was on the talk show in women’s clothing and a feminine hairstyle, the hair dyed honey bee yellow. Her looks were purposefully garish, at first distracting, and it is doubtful that the next Ken Burns documentary on PBS would feature a trans person in such a serious setting, but Japan is a different place as they say.
Here are two stories she related.
She remembers going with her mother to the train station to see her older brother off to war. He was a reluctant soldier, a draftee near the end of the conflict. His mom was waving goodbye as the train pulled away, and suddenly shouted “Come back, come back to me.” Such sentiments were to be unspoken in wartime Japan; a soldier was to expect to die in battle, sacrificing himself for the nation, the Emperor, something. It was late enough in the war then that no one expected the soldiers to come home victorious, the only other acceptable outcome, though that was not spoken of out loud either.
They were expected to die, and the mother’s spontaneous cry was an affront. Her son, ashamed? embarrassed? afraid? ducked his head inside the train and was blended into the mass of other soldiers. He would indeed die in battle, maybe fighting on Guam, maybe Saipan, maybe somewhere else, it was unclear in the chaos of things. At the train station was the last time he would see his mother, and she him.
The day was not over. The entertainer on modern TV explained that almost simultaneously with his mother’s outcry to her son to come home, a police officer grabbed her and slammed her into a telephone pole, opening a gash on her head that bled into her eyes. You’re lucky I don’t arrest you for sedition, old woman, he said. You are a disgrace, go home.
The entertainer lost her mother in the Nagasaki atomic bombing. She claims her mother died hunched over an even younger sibling, shielding him from the firestorm. The entertainer claims she saw her mother’s flesh in ribbons. That was the last time she would see her mother, and perhaps the mother had a last glance at another of her children before she was consumed, again, by the war.
Entertainers are of course in the business of being, well, entertaining, so one must always reserve a bit of skepticism about the fullness of any story so neatly told.
But we’ll be generous to the entertainer in her recollections.
Many terrible things happen in wars, and whether every detail the entertainer shared was true, or embellished, or just made up, matters little. There are real horrors in war, some so terrible that no one could believe they were true, or that they were not embellished, or that some horrible mind did not make them up.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Citing its inherent right to self-defense, an Israeli Defense Forces (IDF) spokesperson today announced his country had destroyed the Lincoln Tunnel, one of the main arteries connecting New Jersey with the island of Manhattan. Israeli forces also shelled New Jersey, causing additional hundreds of casualties.
“With a ceasefire in place in Gaza while we reload for humanitarian purposes, we figured it was time to close off some other Hamas infiltration tunnels around the world. Our intelligence agents had long noted that many people who were either Indian or Arab or maybe Puerto Rican have been using the Lincoln Tunnel to travel from Jersey to New York City. We decided that to preserve the security of the Jewish State, we had no choice but to destroy the tunnel. That was that.”
“As for shelling New Jersey, hell, we just felt sorry for them and wanted to put them out of their misery.”
While steadfastly defending Israel’s right to self-defense, Barack Obama decried the loss of innocent lives. “It is always sad to wake up from my nap to hear some folks got whacked,” said the president, apparently referring to the 782 Americans killed as the Lincoln Tunnel collapsed into the waters of the Hudson River. “But let me be clear: Israel has a right to defend itself– wait, did I say that already? Whatever.”
Secretary of State John Kerry was equally clear on America’s position. “Israel has an absolute right to defend itself, even though crappy places like Gaza, Russia, Venezuela and Iran do not. That said, the president has asked me to begin work on an immediate ceasefire in the United States. I have called Israel about this, but it went to voicemail and apparently they are not accepting texts. I have thus instructed my staff to friend them on Facebook and open channels of communication that way.”
Kerry later that day vetoed a motion in the United Nation condemning Israel for attacking his own country, claiming “All the facts are not yet in.”
“We also had Vanuatu voting with us in support of Israel’s right of self-defense,” beamed Kerry, explaining the U.S. offered the tiny island $4 trillion in aid for its support, “but at the last minute they had this really important thing come up and didn’t vote.”
On background, the IDF spokesperson explained that even though it is common knowledge that the Lincoln Tunnel was opened in 1932, well before either Israel or Hamas even existed, Israel “just does not believe that, knowing how Hamas twists the truth.” Instead, he continued, “we are certain Hamas opened the tunnel solely for the purpose of taking innocent lives, and so for the safety of so many, we regretfully were forced to intercede.”
“These people are freaking nuts,” retorted a Hamas media flack. “We’re buried under rubble here in Gaza drinking our own urine to survive, and those madmen think we built the Lincoln Tunnel? Oh wait, and let me guess, the Americans claim it was all part of Israel’s right to self defense, right? Don’t they even have a new excuse? Try the same line on your wife when you come in late five nights in a row and let me know how that works out for you. Excuse me now, I have to bury my child.”
The IDF plans to take most of the weekend off. “That’s not say we won’t rocket an orphanage or two, but generally speaking we’ve accomplished what we set out to do. Also, none of this is like the Holocaust in any way, so stop that stuff. Are you anti-Semitic?” said the spokesperson.
“Look, hate us if you want to, but if we don’t fight them over there, we’ll just have to fight them here,” concluded the IDF spokesperson.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
“Old Mr. ISIS is a clever fighter,” said the hardened veteran, “but even though Uncle Sam has been fighting him for the last 11 years continuously, long past my failed first and second marriages but I ain’t bitter, we still have a couple of tricks up our sleeve. Yes, sir, this time around we’re getting on the inside to unleash hell.”
The Sergeant shuffled nervously from foot to foot as he spoke, reminding this reporter that he was told to avoid placing both feet on the ground at the same time in front of anyone so that the president could honestly claim there were no American “boots on the ground.”
“Yeah, it gets tiring, but we’re trained for it,” said the Sergeant.
“Last round of fighting in Iraq, we tried bombing and artillery, some rockets, even knives and rocks, but nothing really stuck. Even whatever the Surge was didn’t seem to do the trick, and I’d heard from some buddies of mine up the chain that most people liked that back home. Oh well, this time is the charm. Hey, back in the U.S. do people still do that yellow ribbon thing? Kinda liked that. I once was thanked for my service losing these three fingers here near Mosul with a two-for-one coupon at Taco Bell.”
The secret weapon to defeat ISIS?
“Actually it is a three-part strategy to take down ISIS. And no, it’s not involving Chuck Norris! A little inside joke among us Green Beanie types. Anyway, the first part of the plan is already in play. We have secretly wanted all along for ISIS to capture some of our old military equipment. American stuff needs regular and careful maintenance. When we gave it to the Iraqis on our way out of the country, I guess that was ‘temporarily’ now, we knew the Iraqis would never take care of it. I mean, have you seen this country? People say they’re poor and all, and then everywhere you look there are mountains of trash. How can people who say they don’t have anything create that much garbage every day?”
“Hey, you see that little hill over there? I took a round in my left thigh over there in 1991 during Operation Provide Comfort when we saved the Kurds. And that way? By that well, near the sheep pen, that’s where I got hit in 2003 saving the Kurds again. Lotta stuff up here needs saving it seems, so after this intervention I’m gonna leave behind some shirts and socks so I don’t have to pack so much stuff in next time.”
“So anyway, we knew the Iraqi so-called Army would gank up everything we left behind that they didn’t sell off for scrap metal first. No oil changes, no swapped out parts, hell, they’d sooner leave a truck on the side of the road then tighten a few bolts to keep it running. So the ole’ US of A laid that trap out in 2011 nice and quiet like, just waiting for ISIS to bite. Now, ISIS is stuck with all that junk. They might get a few miles out of some of those HUMVEES, but not much more. Our old rifles are clogging with sand as we speak, and nothing meant to fly is ever gonna again. When they call in for tech support, as some of the stuff is so new it is still under warranty, they’ll be on hold and pushing button one for hours, destroying their forward momentum. Sure hope they speak Spanish, too, because the call center is in Costa Rica. Done and done. We’re only in trouble if they stumble on to some old Russian gear from Saddam’s time.”
“The second part of the plan is Powerpoint. Anybody who has served in the U.S. military knows we plan trips to the porta-potty with a dozen Powerpoint slides, all with animated GIFs. In fact, the Army is the world’s number one consumer of animated GIFs, along with really awful fonts. Another little known fact: 67% of the military is engaged, on average, with creating a Powerpoint presentation somewhere in the world right now. Of course I can’t tell you their exact location, but I know for a fact that SEAL Team Six is on a far-away beach at this moment building a slide deck using only a portable laptop and their night vision gear. The point is simple: we have a couple of guys on the inside of ISIS explaining that all the smart jihadis use Powerpoint. This will slow their planning cycle down by 100 percent. The two hundred Microsoft Office licenses we bought yesterday off New Egg will save American blood today, absolutely. We even had the NSA gin up some fake academic email addresses for us, so we got the four year license cheap so we’re ready for the next intervention, too.”
“Funny thing is when I went into this in 2003 to get rid of Saddam, I told myself that I was doing it so my son would never have to. Thing is that he’s now 23, and deployed to Afghanistan. Now I’m probably shooting at the older brothers of the people I shot at last war. Small world, huh? By the way, speaking of kids, because of all this intervention I’ve been deployed almost continuously for nine years. Your kids forgive you for missing nine birthdays, right? Hey, freedom ain’t free.”
“The last sneaky Pete thing we have ‘cooked up’ is, literally, the killer. We have purposefully overshot our drop zones for some of that humanitarian aid we are delivering by air. The stuff is all MREs, Meals Ready to Eat officially, but Joe Troop calls them Meals Rejected by Everyone. The stuff inside is nasty. During our Special Forces training we have to live in the wild, using only our knives and our cunning to survive. Me, I ate snakes and insects for two weeks. After finally being allowed back in camp and given some MREs, the only thing I could do with them was use the ‘food’ inside as bait for more snakes and insects. Pretty soon the snakes wouldn’t eat it either.”
“So we ‘accidentally’ allowed a bunch of the MREs to fall into ISIS hands. Sooner or later they’ll get hungry enough to push some down their throats. That, my friend, will end this campaign. Can you imagine a fighting force of 100,000 jihadis, everyone of which has to hit the toilet at the same time? Our planes overhead will just roll them up, like fish in a barrell. Actually, come to think of it, fish in a barrel sounds pretty good compared to an MRE.”
“And yeah, those 72 virgins supposedly waiting in heaven for Mr. ISIS? Well, rumor has it Saint Peter made a mistake and misdirected a couple of Marines into Muslim heaven. Let’s just say there are no longer any virgins available, if you get my meaning.”
“Bottom line: if we don’t fight them over here, we’ll just have to come back in a few years and still fight them over here.”
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
General Ray Odierno lives in the third person regarding Iraq. “Mistakes were made” for sure, but not by him, even when he was in charge. Somehow the mistakes happened temporally on his watch, but by someone, never named. Certainly not by General Ray Odierno.
Continuing a media-led open sucking chest wound process of giving a platform to those who were responsible for the current disaster in Iraq to explain anew to us what happened in Iraq (short version: they didn’t do it), the Aspen Security Forum featured a long, sad dirge by Odierno on Iraq.
One could presume Odierno knows something about Iraq; he spent a lot of time there in key positions of responsibility and built up quite a resume: From October 2001 to June 2004, General Odierno commanded the 4th Infantry Division, leading the division in combat. He was Commanding General of the Multi-National Corps in during the famous Surge that was fantasized as ending the war. Odierno was also Commander of United States Joint Forces Command, meaning he was in charge of every American service member in the country. It was during this time that Odierno had personal responsibility for implementing General Petraeus’ counter-insurgency doctrine, overseeing the 2010 Iraqi elections that gave Prime Minister Maliki his second term, and working hand-in-hand with the American embassy in Baghdad to ensure the training of the Iraqi police and army before the U.S. retreat from Iraq at the end of 2010. Odierno is currently Chief of Staff of the Army. Tragically, Odierno’s son, an Army captain, was struck by a rocket-propelled grenade in Baghdad in August 2004 and lost his left arm.
So it is with some sad amusement (think slowing down to gawk at a car wreck on the side of the road) to read Odierno’s comments from the Aspen Security Forum. The general was led through his comments by David Sanger of The New York Times. Sanger himself in 2003 was part of the Times’ wholesale acceptance of the Bush White House’s falsehoods on weapons of mass destruction in Iraq, so the two make quite a pair.
But no matter; that was in the hard air of then, this is now.
Here are some key points Odierno made at the 2014 Forum:
– “The country was going in the right direction when the United States left in 2011, but Iraqi leaders overestimated the progress made by their military and government institutions.”
– “The problem in Iraq was not the training of the Iraqi security forces, although their ability to sustain their own training was ‘disappointing.’ The problem was a lack of confidence, trust and loyalty between troops and their leaders because of politicization of Iraq’s military leadership.”
– “Leaders were changed out. Many of them weren’t qualified. There was some sectarian nature to the changes that were made. Members of the Iraqi security forces were unwilling to fight for a government that they perceived as not standing up for all the different peoples of Iraq, so when they were challenged, you saw them very quickly fade away.”
– “But military power isn’t enough to solve the problems in Iraq, or elsewhere in the Middle East for that matter. The lesson here is [that] you’ve got to stand up an institution. And that includes not just a military, but also a functioning government. Iraq will continue to disintegrate if the unity government doesn’t re-form… The good thing about this is they are in the process of forming a new government. They just had an election. The hope is that the government that would come out would be one that clearly supports a unity government as we go forward. Will that solve the problem?” My guess is not completely. But that’s the first step.”
Odierno has rehearsed his lines– from 2010. Here’s what he claimed after the 2010 elections in Iraq: “”Iraqi security forces performed superbly… I think it was very much a success for the Iraqi people yesterday.” He said earlier that same year “Iraq presents a solid opportunity to help in stabilizing the Middle East.” The Washington Post, never a stranger to hagiography, said on Odierno’s departure from Iraq: “He leaves behind a war not yet won, not yet lost and not yet over. The gap has narrowed in one notable way: Iraq’s security forces, trained, equipped and to a large extent designed by the U.S. military, are increasingly professional and competent.”
The very factors Odierno speaks today of almost as if he was an independent third party dispassionately looking back are the same ones he was responsible for resolving over his many years of command in Iraq. Odierno watched as the United States poured $25 billion into training the gleefully third world standard Iraqi Army he now says was not properly trained. He was handmaiden to the 2010 elections that saw the Iranians broker a Maliki victory and the installation of a Shia-based non-representative government. He oversaw the military reconstruction efforts over years of the Occupation that failed (alongside the State Department’s efforts) to create the very institutions whose absence he now decries. Despite all this, the best Odierno can come up with as an explanation for why everything is a mess in 2014 is the Iraqi’s messed up his good work.
But if Maliki is anything more than a talisman for the whole mess of post-2003 Iraq, he was certainly America’s choice (twice) for the role, and it is unfair to simply fob current events off on him, or assume things will turn around when he is sent off-stage like a modern day Ngo Dinh Diem. Same for “the Iraqis,” whoever they are in this context, who have been designated as a group the responsible party for failing to reassemble the broken country the U.S. created, uninvited, and then left for them.
Odierno is far from alone in absolving himself of responsibility for all the good he failed to do. The big difference is that Odierno likely knows better.
While in Iraq, I met Odierno several times. He traveled tirelessly and spoke to everyone. Addressing small groups of his field officers, the general was often more considered in his remarks, and more aware of the nuanced ground truth, than in his photo-op statements. Yet for all his McNamara of 1965-like public optimism during the war, Odierno does not now seem able to rise to the McNamara of 1995 in admitting his shortcomings, and those of his war. In not doing so– as McNamara did when he remained silent over Vietnam for so long– he blocks the lessons of the past from informing the present. Odierno, like all of Washington vis-vis Iraq, seems to believe he is exempt from history.
Is ISIS a Direct Threat to the U.S.? Doubtful.
First, a few samples of the fear-mongering rhetoric.
“The militant Islamic State group could launch a direct attack on U.S. soil,” warned South Carolina Senator Lindsey Graham, who claimed the militants are a “direct threat to our homeland… They are coming.” Graham, and his running dog accomplice John McCain, have never found a threat they could not exaggerate.
“In reality, ISIS represents the most virulent form of Islamic jihad the planet has ever seen. These folks are not Muslims, they are animals, frankly… another 9/11 is imminent.” said Ali Khedery, who, as an advisor to five U.S. ambassadors in Iraq, is personally responsible for much of the mess there.
“Every day that goes by, ISIS… becomes a direct threat to the United States of America. They are more powerful now than al Qaeda was on 9/11,” Representative Peter King said.
R U Scared Yet?
Well, that is all pretty terrifying. While the fear mongers depend on the idea that there is no way to prove a negative (i.e., ISIS will never attack the U.S., or Paraguay, or Bermuda), there is still room for rational thought. Here are a few of such thoughts:
– ISIS has been in existence in some form since perhaps 2004, as part of Al Qaeda in Iraq. They formed their own organization, such as it is, in 2013. In the nine years of the U.S. Occupation of Iraq, no Mideast group launched an attack on the U.S. Nobody from the Taliban has shown up here since whenever, same for the groups unleashed after the U.S. attacked Libya. No Yemeni or Pakistani terrorists yet either. No Boko Haram, no Abu Sayyaf. Not even al Qaeda after 9/11. What’s different about ISIS?
– Oh, the money? Yep, they seemed to have gotten ahold of a huge amount of Iraqi and U.S. currency, and American weapons, after the Iraqi Army gave up and ran away. Money can help, but in fact the 9/11 attacks may have cost about $400,000, and that included all that expensive flight training. Not small change, but certainly the kind of money that an international terror group could raise. Nope, no big change there either.
– Many/most of the ISIS fighters are unsophisticated people with limited formal education, likely with no English skills and little if any experience outside their own areas. It seems unlikely they are the kind of people who will successfully obtain passports, travel to international airports, blend in, hop on planes, wander into the U.S., acquire weapons and navigate around America to strike important targets.
– But what about the foreign fighters with ISIS? Aren’t there Americans among them who will return to the Homeland and carry out lone wolf attacks? Sure, that it always possible. But again, since 9/11, almost 13 years, it hasn’t happened. Is there something different about the ISIS Americans? Meanwhile, the very few acts of terrorism in the U.S. have been carried out by people already here, such as the hapless Boston kids, likely the post-9/11 anthrax attacks, and Major Hasan, a serving U.S. Army officer who shot up Fort Hood. We’ll leave aside the heavy death toll in America in the meantime by our own army of school mass shooters and workplace psychos.
– And speaking of those Americans who have joined ISIS, perhaps the fear mongers might pause and consider what might encourage a young person to do that, and perhaps tackle the problem from the perspective.
– Thinking ISIS will jump from the battlefields of Iraq to New York fails to understand the point of terrorism. ISIS has exactly what it wants already, and achieved its goal vis-vis the U.S. at almost no cost: they lured the Americans back into Iraq. What had been a struggle for territory among indigenous groups turned overnight into a jihad against the American crusaders, you know, the ones who promised to leave Iraq in 2011 and then instead came back?
Nothing could be more helpful to ISIS in terms of recruitment, raising money and inspiring its forces than to recharacterize the conflict as something broader, with ISIS in the role of protector of Islam. If ISIS wants to kill Americans, they can do it right there at home.
So sleep well America. ISIS is killing us over there because it is more convenient for them than killing us here. The rest is just fear mongering.
No one wants to see anyone suffer, Yazidi or otherwise. What we do want is to know the truth about what is going on in Iraq even as Obama continues airstrikes, and prepares to send in 130 more American troops. The 130 additional advisers brings the number of American military personnel in Iraq to more than 1,000.
U.S. officials said they believed that some type of ground force would be necessary to secure the passage of the stranded members of the Yazidi group. The military is drawing up plans for consideration by President Obama that could include American ground troops.
So a couple of questions here.
Long before U.S. airstrikes, the defenseless Yazidi people climbed up that mountain for refuge from ISIS, who supposedly wanted to slaughter them. Why didn’t ISIS just also climb up and then slaughter them? We know ISIS had mortars and actual artillery, because the U.S. later bombed those. Why didn’t ISIS use those weapons to slaughter the Yazidis from afar?
Also, after one or two airstrikes, ISIS became so easy to defeat that the Kurds made it possible for 24,000 Yazidis to walk off the mountain, walk into Syria and then U-turn walk back into Iraq and settle in safely. It begs the question about how surrounded by determined ISIS fighters that mountain really was. It takes a long time for 24,000 people to do anything, and they’d need to be walking a long way during which time they would be vulnerable to ISIS. How could ISIS go from being such a threat that U.S. airpower was essential, to be pushed aside by Kurds who otherwise were having their hats handed to them by ISIS everywhere else?
And after all that, plus more airstrikes, why are there still people up on that mountain without food or water? How was it that 24,000 people could walk away but not everyone? The air strikes are ongoing, and those same Kurds that cleared a path once are still there.
The Iraqi government claims ISIS killed at least 500 Yazidis, burying some alive and taking hundreds of women as slaves. The Iraqi government claimed “Some of the victims, including women and children, were buried alive in scattered mass graves in and around Sinjar.” This was reported by western media, at least one of whom was still ethical enough to add “no independent confirmation was available.” Recent mass graves in a desert area should stand out. This seems like something worth confirming instead of just repeating. What efforts are being made to confirm the information?
If every seat on every helicopter will save a Yazidi child’s life via evacuation, why are seats being allotted to CNN camera crews and other journalists? What is the priority?
What is the thinking about a group the U.S. has long-designated as a terrorist organization playing an active part in rescuing the Yazidis under American air cover? Shouldn’t the U.S. be bombing known terrorist organizations instead of working with them? Isn’t that sort of the actual point of a war on terror, to kill terrorists wherever they are?
Maybe there are good answers to these questions (please share below, with links) but is it at all possible that we’re being sold an emotionally compelling story to justify U.S. military intervention in Iraq? Perhaps that mountain the Yazidis are on has a slippery slope for the U.S.?
It looks like some of the stuff the U.S. is now blowing up in Iraq is some of the stuff the U.S. first brought to Iraq to blow up Iraqis in 2003, then gave to the Iraqis after we were done blowing them up and left in 2011, only to see those same Iraqis abandon the gear on the battlefield last month so it could be picked up by ISIS this week, which led to the U.S. bombing it today.
It’s Our Own Stuff
When the Iraqi Army’s 2nd Division broke and fled ahead of the advancing columns of ISIS fighters near Mosul earlier this summer, they left behind a mountain of U.S.-supplied military equipment. Included were were hundreds of Humvees, small arms and ammunition (including 4,000 machine guns that can fire upwards of 800 rounds per minute), and as many as 52 American M-198 howitzer mobile gun systems – the same guns that two US Navy F/A-18s most likely pounded with 500 pound laser guided bombs on Friday.
Obama gave the green light for strikes anywhere in Iraq where U.S. citizens were in danger, so CENTCOM commander Lloyd Austin gave the order to strike on Friday when it was determined that the city of Erbil was in range of the American-lost guns. All of the Americans being protected in Erbil are there because the U.S. government put them there, including U.S. Consulate staff and Special Forces. Presumably those personnel could have been moved out, thus avoiding this whole thing.
Now the good news here is for the U.S. defense industry, which has achieved the state of karmic perfection. The weapons they once sold to the U.S. are now being destroyed by other weapons they sold to the U.S., which will need to be replenished. Why, it’s a win-win situation for nearly everybody!
We Told You So
The U.S. knew ISIS had control of the howitzers from at least mid-July. But it is not like any of this couldn’t have been foretold long before mid-July.
Professor of Economics at the Mercatus Center at George Mason University Chris Coyne, in an interview with me, predicted this exact scenario much earlier this summer:
The U.S. government provided significant amounts of military hardware to the Iraqi government with the intention that it would be used for good (national security, policing, etc.). However, during the ISIS offensive many of the Iraqis turned and ran, leaving behind the U.S.-supplied hardware. ISIS promptly picked up this equipment and are now using it as part of their broader offensive effort. This weapons windfall may further alter the dynamics in Syria.
Now the U.S. government wants to provide more military supplies to the Iraqi government to combat ISIS. But I haven’t heard many people recognizing, let alone discussing, the potential negative unintended consequences of doing so. How do we know how the weapons and supplies will be used as desired? What if the recipients turn and run as they have recently and leave behind the weapons? What if the weapons are stolen? In sum, why should we have any confidence that supplying more military hardware into a country with a dysfunctional and ineffective government will lead to a good outcome either in Iraq or in the broader region?
As America goes back to war in Iraq with airstrikes, here’s what to know and do instead:
– This is a slippery slope if those words have any meaning left. Airstrikes are in part to protect American advisors sent earlier to Erbil to support Kurds there because Iraqi central government won’t. The U.S. is assuming the role of the de facto Iraqi Air Force. What happens next week, next crisis, next “genocide?” Tell me how that ends.
– Understand how deep the U.S. is already in. It is highly likely that U.S. Special Forces are active on the ground, conducting reconnaissance missions and laser-designating targets for circling U.S. aircraft. If U.S. planes are overhead, U.S. search and rescue assets are not far away, perhaps in desert forward operating positions. Protecting/evacuating Americans from Erbil will be a major military operation. This is how bigger wars begin. Go Google “Vietnam War,” say starting about 1963.
– The U.S. media is playing the meme that the U.S. is worried about Christian minority in Iraq, as a way to engorge the American people with blood. But the media fails to note that over half of Iraq’s Christians were killed or fled during the U.S. occupation. The play in the Arab world that the U.S. cares more about a limited number of Christians now than untold thousands of Muslim lives will not aid U.S. long-term goals.
– The questions of why what is happening in Iraq is “genocide” and why what is happening in Gaza is not remains unaddressed by the United States. Even if Americans are not asking for an answer, many others are.
– Wait a tic– are we again “buying time” by putting American lives at risk so the Iraqis can form a government and reconcile in some short-term thing? Isn’t that what America had been doing since 2003? Wasn’t that what the “success of the Surge” in 2007 was all about? We have seen this movie already friends.
– The only realistic hope to derail ISIS is to alienate them from Iraq Sunnis, who provide the on-the-ground support any insurgency must have to succeed. Mao called a sympathetic population “the water the fish swims in.” Separating the people from the insurgents is CounterInsurgency 101. Instead, via airstrikes, the U.S. has gone all-in on side of Iraqi Shias and Kurds. You cannot bomb away a political movement. You cannot kill an idea that motivates millions of people with a Hellfire missile.
– Sunnis are not confined by the borders of Iraq and this is not a chessboard. U.S. actions toward Sunnis in Iraq (or Syria, or wherever) resonate throughout the Sunni world. There is no better recruitment tool for Sunni extremists than showing their fight is actually against the Americans. ISIS seems to be playing to this, calling the Americans “defenders of the cross.”
– Throughout the broader Islamic world, the takeaway is that again the U.S. unleashes war against Muslims. Nothing can inspire jihad like seeing the struggle in Iraq as one against the Crusaders. ISIS seems to know this, and taunts America into deeper involvement with statements such as “the flag of Allah will fly over the White House.”
– Precise, Surgical Strikes: Sure, just ask those wedding parties in Yemen and Afghanistan how that has worked out. It is near-evitable that mistakes will be made and innocents will die at American hands.
– ISIS’ connections to al Qaeda are tenuous at present. However, just like when Sunnis felt threatened during the U.S. occupation, fear and military needs will inevitably drive them closer to al Qaeda.
– Irony: Back to the Future: U.S. airstrikes on Iraq are being launched from an aircraft carrier named after George H.W. Bush, who first involved the U.S. in a shooting war against Iraq in 1991′s Desert Storm.
– Air strikes will not resolve anything significant. The short answer is through nine years of war and occupation U.S. air power in Iraq, employed on an unfettered scale, combined with the full-weight of the U.S. military on the ground plus billions of dollars in reconstruction funds, failed to resolve the issues now playing out in Iraq. Why would anyone think a lesser series of strikes would work any better? We also have a recent Iraqi example of the pointlessness of air strikes. The Maliki government employed them with great vigor against Sunnis in western Iraq, including in Fallujah, only six months ago, and here we are again, with an even more powerful Sunni force in the field.
– Oh, but what should we do?!?!? The U.S. lost the war in Iraq years ago, probably as early as 2003. It is time to accept that.
Step One: Stop digging the hole deeper (see above, Sunni-Shia-Kurd problem);
Step Two: 2: Demand the Iraqi government stop persecuting and alienating their own Sunni population, the root of these insurgent problems;
Step Three: Demand the Saudis and others stop funding ISIS in hopes of choking back their strength;
Step Four: Demand the Iraqi government launch airstrikes in support of the Kurds as a show of support;
Step Five: Deliver humanitarian aid only through the UN and the Red Crescent. In Vietnam, this mistake was colloquially expressed as “F*ck ‘em, then Feed ‘em.” So instead, divorce the good U.S. stuff from the bad U.S. stuff.
Those things will be a good start. Airstrikes are a terrible start that begs a tragic finish.
Be sure to also see Ten Reasons Airstrikes in Iraq are a Terrible Idea.
Show of hands: anybody out there who heard much of the Yazidi in Iraq before a day or two ago? Because our president is going to re-engage in combat in Iraq to save them. Airstrikes are now authorized!
Save Our Yazidi
Once upon a time placing America’s service people in harm’s way, spending America’s money and laying America’s credibility on the line required at least the pretext that some national interest was at stake. Not any more. Anytime some group we don’t like threatens a group we could care not so much about, America must act to save a proud people, stop a humanitarian crisis, take down a brutal leader, put an end to genocide, whatever will briefly engage the sodden minds of the public between innings and spin up some new war fever. Some of these crisis’ get a brief moment in the #media (Save our girls!), some fizzle and fade (The Syrian people!) and some never even made sense (Somebody in the Ukraine!)
With some irony, “freeing the Iraqi people from an evil dictator” was one of the many justifications for the 2003 invasion.
And so this week, apparently it is the Yazidis in northern Iraq. These people consider themselves a distinct ethnic and religious group from the Kurds with whom they live in Iraq, though the Kurds consider them Kurdish. Their religion combines elements of Zoroastrianism with Sufi Islam. One of their important angels is represented on earth in peacock form, and was flung out of paradise for refusing to bow down to Adam. While the Yazidis see that as a sign of goodness, many Muslims view the figure as a fallen angel and regard the Yazidis as devil-worshippers. Fun Facts: the Yadzidi don’t eat lettuce, either, and also boast a long tradition of kidnapping their wives. The photo above shows them slaughtering a sheep, which they do eat.
Between 10,000 and 40,000 civilians (kind of a big spread of an estimate given how important these people are now to the U.S.) are currently stranded on Mount Sinjar in Northern Iraq without food and water, having been driven out of town by ISIS earlier this week.
So, in response to this humanitarian crisis, or this genocide as the New Yorker called it, Obama’s answer is pretty much the same answer (the only answer?) to any unfolding world event, more U.S. military intervention.
With no apparent irony, the White House spokesperson, surnamed Earnest (honestly, Orwell must be laughing in his grave) said on the same day “We can’t solve these problems for them. These problems can only be solved with Iraqi political solutions.”
Obama also has said U.S. airstrikes on Iraq aim to protect U.S. military advisers in Iraq who one guesses are not part of that political solution by definition.
I feel for anyone suffering, and I have no doubt the Yazidis are suffering. But as we start bombing things in Iraq again, let’s invite Obama to answer a few questions; White House journalists, pens at the ready please:
– Since this is happening in Iraq, and the U.S. spent $25 billion to train the Iraqi Army and sold it some serious weaponry, why isn’t it the Iraqis who will be doing any needed bombing? Is it because they are incompetent, or is it because the Baghdad government is either afraid to operate in Kurdish territory and/or wholly unconcerned what the hell happens up there?
Yep, might be those things. The Yazidis have long complained that neither Iraq’s Arabs nor Kurds protect them. In 2007, in what remains one of the most lethal attacks during the American Occupation, suicide bombers driving trucks packed with explosives attacked a Yazidi village in northwestern Iraq, killing almost 800 people.
– At the same time, since this is happening in defacto Kurdistan, and the U.S. has spent billions there since 1991 and supplied it some serious weaponry, why isn’t it the Kurds who will be doing any needed bombing to protect those they consider their own people? Hmm, just an idea, but the U.S. has recently imposed an economic oil embargo on Kurds to force them to stay with Iraq and they might be unhappy with American ‘stuff right now.
– Outside Kurdistan/Iraq, the other major Yazidi population centers are in Turkey and Iran. So why aren’t they doing any needed bombing?
– If indeed this Yazidi issue is a genocide, why isn’t the U.S. seeking UN action or sanction? The UN has, after all, started safely extracting small number of Yazidis. Could anyone help with that?
– If indeed this Yazidi issue is a genocide, why aren’t any of America’s allies jumping in to assist in any needed bombing? Seriously, if all this is really so important, how come it is just the U.S. involved, always?
– While saving the Yazidis is the stated goal, in fact any U.S. airstrikes are technically and officially acts of war on behalf of the Government of Iraq. And we’re also cool with that, yes?
– And c’mon, isn’t this just a cynical excuse to tug on some American heartstrings, crank up the war fever and get us back into the Iraq war? ‘Cause even if that’s not the intention, it is a likely result.
– And Obama, we’re gonna be cool announcing the loss of American life, again, in Iraq, this time to save the Yazidi? ‘Cause even though there are supposedly no boots on the ground, there is no way you are going to drop bombs near civilians you are trying to protect without Special Forces laying their boots on the ground to guide in the airstrikes. We are not Israelis, after all.
You still think everything on the dollar menu really costs only a dollar? Better read this. One important reason to raise the minimum wage to a living one is that people who can afford to feed themselves will not need food stamps paid for by taxpayers. Companies who profit off their workers’ labor will be forced to pay a fair price for it, and not get by on taxpayer-subsidized low wages. Just as important, people who can afford to feed themselves earn not just money, but self-respect. The connection between working and taking care of yourself and your family has increasingly gone missing in America, creating a society that no longer believes in itself. Rock bottom is a poor foundation for building anything human.
But won’t higher wages cause higher prices? The way taxpayers functionally subsidize companies paying low-wages to workers — essentially ponying up the difference between what McDonald’s and its ilk pay and what those workers need to live via SNAP and other benefits — is a hidden cost squirreled away in plain sight. Sky-high company profits are based on the in-flow of federal tax money to keep low wages manageable. You’re already paying higher prices via higher taxes; you just may not know it.
Even if taxes go down, won’t companies pass on their costs? Maybe, but they are unlikely to be significant. For example, if McDonald’s doubled the salaries of its employees to a semi-livable $14.50 an hour, not only would most of them go off public benefits, but so would the company — and yet a Big Mac would cost just 68 cents more. In general, only about 20% of the money you pay for a Big Mac goes to labor costs. At Walmart, increasing wages to $12 per hour would cost the company only about one percent of its annual sales.
What about job cutbacks? Despite labor costs not being the most significant factor in the way low-wage businesses set their prices, one of the more common objections to raising the minimum wage is that companies, facing higher labor costs, will cut back on jobs. Don’t believe it.
The Los Angeles Economic Round Table concluded that raising the hourly minimum to $15 in that city would generate an additional $9.2 billion in annual sales and create more than 50,000 jobs. A Paychex/IHS survey, which looks at employment in small businesses, found that the state with the highest percentage of annual job growth was Washington, which also has the highest statewide minimum wage in the nation. The area with the highest percentage of annual job growth was San Francisco, the city with the highest minimum wage in the nation. Higher wages do not automatically lead to fewer jobs. Many large grocery chains, including Safeway and Kroger, are unionized and pay well-above-minimum wage. They compete as equals against their non-union rivals, despite the higher wages.
Will employers leave a state if it raises its minimum wage independent of a nationwide hike? Unlikely. Most minimum-wage employers are service businesses that are tied to where their customers are. People are not likely to drive across state lines for a burger. A report on businesses on the Washington-Idaho border at a time when Washington’s minimum wage was nearly three bucks higher than Idaho’s found that the ones in Washington were flourishing.
While some businesses could indeed decide to close or cut back if the minimum wage rose, the net macro gains would be significant. Even a small hike to $10.10 an hour would put some $24 billion a year into workers’ hands to spend and lift 900,000 Americans above the poverty line. Consumer spending drives 70% of our economy. More money in the hands of consumers would likely increase the demand for goods and services, creating jobs.
In many ways, the debate over raising the minimum age mirrors what was said about unions in the 1970s. Many at the time, especially pro-business economists and politicians as they do today, claimed the high wages fought for by unions hurt American competitiveness and cost jobs. How could a business survive paying $25 an hour? If wages were cut, and profits went up as costs fell, more jobs would be created.
So how’d that work out? The demise of unions did certainly help raise corporate profits, but it clearly did not create jobs, at least not good jobs at a living wage. Quite the opposite. Want more minimum wage jobs, maybe? Keep the wage dirt poor low.
Walmart, which already is profiting mightily from federal, taxpayer paid corporate welfare in the form of food stamps subsidizing its workers’ low wages, as well as billions in direct profits from buyers shopping with food stamps, also takes advantage of tax laws that help it avoid paying federal tax.
Thanks for Shopping at Walmart, Suckers
American taxpayers subsidize much of the cost of Walmart’s executive pay. Walmart (and other large companies) uses a loophole in a tax law created by Congress in 1993 (Section 162(m) of the tax code) that allows it to deduct unlimited amounts from corporate income taxes. All Walmart has to do is deduct the cost of executive compensation if it is paid in the form of stock options and other so-called “performance pay” instead of straight salaries. Congress wrote the law to apply only to actual salaries.
– Ka-Ching! $104 MILLION: Walmart reduced its federal tax bills by an estimated $104 million over the past six years by paying its top eight executives $298 million in “performance pay” that was fully tax deductible. The tax revenues lost would have been enough to cover the cost of free school lunches for 33,000 children for those six years.
– Ka-Ching! $40 MILLION: Michael Duke, Walmart’s recently retired President & CEO and currently Chairman of the Executive Committee of the Board of Directors, pocketed nearly $116 million in exercised stock options and other “performance pay” during the period 2009-2014. That translates into a taxpayer subsidy for Walmart of more than $40 million— enough to cover the average cost of food stamps for 4,200 people for those six years. FYI: Duke’s total compensation for 2013 was $27.6 million, all wrung out of those everyday low prices.
– Ka-Ching! $50 BILLION: Taxpayers would save $50 billion over 10 years, according to the Joint Committee on Taxation, if Congress changed this tax law, even if the new law allowed a generous tax deduction of one million dollars for each employee’s total compensation, with no exceptions for performance pay, as originally intended when the law was first created in 1993.
– Ka-Ching! $14 BILLION: And about those tax-payer funded food stamps. Overall, 18 percent of all food benefits money is spent at Wal-Mart. That’s about $14 billion.
– Ka-Ching! $7.8 BILLION: Taxpayers spend $7.8 billion a year subsidizing Walmart through public assistance to the company’s low paid employees.
– Ka-Ching! $3 BILLION: The four members of the Walton family, who control almost all of Walmart, shelter signficant amounts of their money from taxes by placing the cash into trusts, allowed by the tax code. To avoid taxes on the dividends generated out of these trusts, those monies are donated to the Walton Family Foundation, a registered charity. When the trusts expire upon the deaths of the elder Waltons, however, their underlying assets, along with any income earned above the amount required to go to the Foundation, will revert to the trusts’ non-charitable beneﬁciaries, the second or third tier Walmart heirs-in-waiting. The non-charitable beneﬁciaries of the trusts will likely receive these trust assets entirely free of estate taxes. Cost to taxpayers is estimated at $3 billion in lost tax revenues.
What it Means
There are some important takeaways, besides the obvious. The first concerns the minimum wage. It is clear that Walmart could easily pare off a sliver of the billions its owners take in to raise wages without raising prices. They just don’t want to. Even if prices went up, savings in food stamps that would not have to be paid to starving workers would be substantial.
The other thing to consider is the conservative argument that business growth is critical to broader economic and societal growth. Maybe in some ways, but as shown with Walmart, certainly it does not lead to larger tax revenues; quite the opposite. Somebody has to pay for all those food stamps and trust fund loopholes. That’s you.
It is important to remember that companies have been enjoying these taxpayer subsidies for their executive compensation since 1993, plus the economic benefits of food stamps to subsidize their profits and low wages. That they exist today, at the phenomenal costs to regular Americans noted above, is no secret.
So draw your own conclusions from that as to how Congress views all this corporate welfare.
An Exceptional Nation
Many examples of extraterritoriality grow out of America’s archipelago of military bases around the world, where Status of Forces Agreements (SOFA) allow service members exemption from local laws, even when they commit crimes against host country people. The U.S. also stations Customs and Border Patrol agents in other nations, denying boarding on U.S.-bound flights from Canada, for example, to Canadian citizens otherwise still standing in their own country. Imagine the outcry in America if the Chinese were to establish military bases in Florida exempt from U.S. law, or if the Russians choose which Americans could fly out of Kansas City Airport. Never mind drone strikes, bombings, deployment of Special Forces, invasions and CIA-sponsored coups.
The snowballing NSA revelations have already severely damaged U.S. credibility and relationships around the world; nations remain shocked at the impunity with which America dug into their private lives. NSA spying has also cost American tech firms $180 billion in lost revenues, as “We’re not an American company” becomes a sales point.
A New Level
An American court has just taken things to a new level of extraterritorial offensiveness by requiring Microsoft to turn over to the U.S. government emails it holds on its servers. But in this case, those servers are located in Ireland, a European Union nation with its own privacy laws. Those laws are apparently of no real concern to the United States.
In a July 31 ruling upholding a lower court decision, U.S. Magistrate Judge James Francis in New York ruled that an American search warrant can be applied outside the country and served on a foreign company if that company has some business connection to an American corporation. The ruling makes all data in the world subject to a U.S. court, assuming some nexus to an American entity can be found. The nexus question is important; U.S. law holds that a company doing business in the U.S., say Malaysian Airlines, can be sued in the U.S. for some event that occurred abroad, such as an air crash in the Ukraine. The court ruling could in theory require Credit Suisse to open its servers in Zurich to the U.S. government simply because they have an office in Manhattan.
In the current case, the theory was that because Microsoft owned and controlled a foreign subsidiary company based in Ireland, any data stored in that overseas office or its data centers fell within (virtual) U.S. territory. This exposes massive amounts of foreign cloud-stored data, including emails and web searches, to American law enforcement working through an American court system that has been compliant in satisfying its needs post-9/11.
Rules are For Fools
The Judge went further is his decision, claiming official channels between countries that currently allow for cross-border law enforcement operations, called mutual legal assistance treaties (MLATs), are “generally… slow and laborious, as it requires the cooperation of two governments and one of those governments may not prioritize the case as highly as the other.” The judge added: “The burden on the government would be substantial, and law enforcement efforts would be seriously impeded.”
MLATs, the system that has been in place for many, many years prior to this week’s court ruling, are formal treaties whereby countries agree to share law enforcement information when it is to the benefit of both sides. They are subject to transparency and scrutiny, court review and have numerous steps built in to protect the rights of the accused. An example of an MLAT’s typical use might be a cross-border investigation into an alleged narco trafficker doing bad things in both nations. MLAT’s are usually administered abroad through the FBI’s Legal Attache stationed at the U.S. Embassy.
EU Data Laws
The American court’s ruling, allowing the United States to simply demand Microsoft’s data from Ireland for whatever purpose it may decide to use it, is a big, big deal. European information law is very strict. Data held by a company in Europe is considered to ultimately belongs to the citizen who generated it. A citizen can request access to his or her own data, and when it’s no longer needed, it must be deleted.
In the U.S., data is considered the property of the tech company that has its hands on it at the moment. So, in America, your Facebook posts and Instagram pictures don’t really belong to you, and you can’t block those companies from giving them to the government, or selling them to a third party for that matter.
Yet the most amazing thing about the judge’s ruling is its sheer audacity. In the immediate wake of the revelations that the NSA has been stealing Europe’s data, the judge has ruled that it is in fact now legal for the U.S. government to simply demand that data.
Microsoft to Appeal
In hopes of salvaging its business in Europe, Microsoft is appealing the decision. http://publicpolicy.verizon.com/blog/entry/verizon-files-amicus-brief-in-support-of-microsoft Verizon, Apple, AT&T, and Cisco, despite handing over their data to the NSA domestically willy-nilly, are supporting Microsoft in its efforts to block the European grabs.
In its appeal, Microsoft summed up the issue concisely:
A U.S. prosecutor cannot obtain a U.S. warrant to search someone’s home located in another country, just as another country’s prosecutor cannot obtain a court order in her home country to conduct a search in the United States. We think the same rules should apply in the on line world, but the government disagrees.
Local slacker and sophomore guy from down the hall in your dorm is now a member of al Qaeda, all because he did not read through the software license on some stuff he downloaded and just clicked “Accept.”
“So my bud told me about this sick game and after being distracted for like seventeen hours surfing through porn sites I decided to download it and check it out. Like always as I did the install, that stupid licensing agreement box came up, you know, the one with all that annoying tiny print. That always cranks me off, because like what, they expect you to plow through a hundred pages of legal junk just to check out a new game? Yeah right. If I wanted to read things I’d study for my history test on Thursday, LOL.”
“So I just clicked ‘Accept.’ Now I guess I’m in al Qaeda.”
Speaking on behalf of the global terrorist organization responsible for the deaths of tens of thousands of innocents, spokesperson Mohammed “Tommy” bin Mohammed explaining what happened.
“Like any organization, we have to adapt to the times. Our usual recruitment methods of offering the chance to live in the dirt, or that 72 virgins thingie, just were not as effective as we’d like in America. Numbers were down and we were under heavy pressure from the home office. So, we bought into a few software companies and simply inserted our jihadi contract right into their standard licensing agreements.”
The slacker went on: “So when I clicked accept that meant I signed up. I kinda thought it was a joke or something, but my roommate’s dad is a lawyer or an accountant or one of those jobs that you have to wear a tie for, and my roommate says this is all legal. I’m kinda screwed. But I guess a deal is a deal.”
“We used to require a blood oath,” continued the al Qaeda spokesperson. “Would-be recruits had to travel to Pakistan, go overland to this one backup cave we had, then cut their hand and mingle their blood with a true soldier of Islam’s blood. It was expensive, messy, and of course not very healthy. This new thing is great.”
“Anyway, looks like I’m gonna miss some classes while I do jihad,” said the slacker, “but I hardly went anyway and my bros’ are gonna take notes if they attend. I’m even thinking of buying the textbook and taking that with me so I can catch up when I get back.”
“This slacker will of course never come back,” said the al Qaeda spokesperson. “Seriously, what else can we do with him but straight into the suicide bomber squad? The guy is a bonehead. Three years of college at a fine university, all paid for by his infidel parents, and he ends up passed out drunk in a wading pool on a frat house lawn every weekend.”
“So yeah, there’s some downside,” mumbled the slacker as he packed for the one-way trip to Hell. “These dudes don’t drink, I’ll spend Spring Break in Afghanistan, and I’ll have to blow myself up most likely. But on the plus side it means no finals, and no hassling with my folks over my grades like usual. I also hear they have some sweet, sweet hashish out that way.”
“Plus there’s this deal with the 72 virgins I’m hearing about. That is wicked. Man, I haven’t gotten any in a while.”
The German government will end its contract with Verizon. Brazil dumped Boeing for Swedish company Saab to replace its fighter jets. Sources told Bloomberg News “The NSA problem ruined it” for the U.S. defense contractor.
Unfettered NSA spying has cost U.S. companies up to $180 billion in lost overseas business. The number is expected to grow.
Cisco saw a ten percent drop in overseas business. Dropbox and Amazon Cloud Services reported immediate drops in their sales abroad. Qualcomm, IBM, Microsoft, and HP all reported declines in sales in China due to NSA spying. The total costs to U.S. businesses could reach as high as $180 billion.
ServInt Corporation, a Virginia-based company providing website hosting services, has seen a 30 percent decline in foreign customers since the NSA leaks began in June 2013, said Christian Dawson, its chief operating officer.
Big Losses for U.S. Tech Firms
According to a new report by the nonprofit New America Foundation, in total NSA spying could slow the growth of the U.S. tech industry by as much as four percent in the short run, though the massive hit to American credibility could have long-range repercussions that are hard to estimate at present. The NSA spying is leading many nations to develop their own, indigenous capabilities that suggest fewer opportunities for American tech firms into the future. For example, Brazil and India are planning domestic IT companies that will keep their data centers within national boundaries and thus hopefully out of NSA’s reach. Greece, Brunei, and Vietnam have announced similar plans.
The point really stings: cloud storage services are already a $150 billion industry, a number expected only to grow. The question now is how much of that growth for American companies will be siphoned off by foreign competition because of the NSA’s wholesale spying. One-third of Canadian businesses said in a survey they were moving their data outside the U.S. as a result of NSA spying. Artmotion, a Swiss web hosting provider reported that within a month after the first revelations of NSA spying, business jumped 45 percent.
You’re an American Company? No, Thanks
“We’re not an American company” may prove to be a decisive sales point, and the NSA activities a persuasive marketing tool. The point is not theoretical. “Ties revealed between foreign intelligence agencies and firms in the wake of the U.S. National Security Agency affair show that the German government needs a very high level of security for its critical networks,” Germany’s Interior Ministry said in a statement about the canceled Verizon contract.
While the NSA likely is even now working on ways to break into foreign data centers, the immediate concern for many governments abroad is the “sharing” agreements NSA enjoys with American firms. As revealed by Edward Snowden, most American tech companies are required by the U.S. government to make themselves open to the NSA, either by directly sharing data (for example, Verizon) prepackaged to NSA needs, or by allowing the NSA to dictate what technological back doors will be built into the actual hardware (Cisco.) Either way, in the minds of many foreign governments, purchasing goods or services from an American company is the equivalent of exposing by default all data that passes through those goods or services to the American government.
“I can’t imagine foreign buyers trusting American products,” said security expert Bruce Schneier. “We have to assume companies have been co-opted, wittingly or unwittingly. If you were a company in Sweden, are you really going to want to buy American products?”
Corrupting the Entire Internet
The New America report also explains that the NSA has fundamentally attacked the basic security of the Internet by undermining essential encryption tools and standards, inserting backdoors into widely-used computer hardware and software products, stockpiling vulnerabilities (“zero day defects”) in commercial software rather than making sure those security flaws get fixed, dropping spyware into routers around the world, impersonating popular sites like Facebook and LinkedIn to gather data, and hacking into Google and Yahoo’s backbone data links to harvest emails, address books and more.
This all in spite of one of the core missions of the NSA being to protect America’s cybersecurity.
A Wake Up Call?
The cynical might say that with the loss of business revenues abroad, the American government finally has a reason to reign in the NSA, at least overseas. Tech companies, after all, are traditionally big political donors, especially to the Democrats and thus hold some clout. Domestically, there is little financial incentive for less spying; remember, the only person on earth Obama has personally and specifically assured is not being monitored via her cell phone is a foreigner, German Chancellor Angela Merkel. No, sorry, Americans are still fair game.
Perhaps the worst news for American tech is hardest to quantify. “It’s not possible to put an exact dollar figure on the cost of lost business for U.S. companies as a result of the NSA revelations,” said Chris Hopfensperger, policy director for BSA/The Software Alliance, a Washington-based trade association. “If a customer goes directly to a non-U.S provider for something, you never know that you didn’t get the call.”
Funny, because while the American company may indeed never know they didn’t get the call, the NSA might. Who could have thought the wake up call to U.S. firms would be so ironic?
A sordid feature of 19th century Victorian life was the debtor’s prison.
People who could not pay their financial debt simply went to prison, punishment for not being wealthy. The point was often muddied, as from inside jail a person could most certainly not earn any money to pay off the debt, though one supposes the rich chortled knowing those who stiffed them suffered for the act. It was kind of a thing to do back then. The prisons, chronicled most famously by Charles Dickens among other Victorian crimes against a just society, were a step from Roman and Greek days when debtors could become the actual bonded slaves of the people to whom they owed money.
Debtor’s prisons were from Colonial days through the early 1800s a feature of American life, until enlightened societal views (yeah, slavery took a bit longer to sort out) and new bankruptcy laws pushed them from the scene. State-by-state the practice of locking people up to punish them for owing money generally faded; Kentucky did away with it in 1821, still-business friendly Virginia dragged its feet until 1849. Between 1970 and 1982, in a series of cases, the Supremes did away with the practice once and for all as a violation of the 14th Amendment’s equal protection clause. Until now of course.
Until Now of Course
More and more states have revived the debtors prison, albeit in a specific form, locking people up for failure to pay court costs and fees. Like so many other things in America, shortfalls in budgets are made up not by raising taxes (or heaven forbid, fiscal prudence) but by new arrays of costs and fees paid by people in the criminal justice system. We are not referring to fine or penalty (ex. speeding ticket=$250) here, but to that thing the judges say on TV– “Guilty, with a fine of $300 and court costs. Next case please.”
The new costs can be dizzying. The Brennan Center at New York University reports:
Some jurisdictions have haphazardly created an interlocking system of fees that can combine to create insurmountable debt burdens. Florida has added more than 20 new fees since 1996. In 2009, the Council of State Governments Justice Center found that a “sprawling number of state and local fees and court costs that state law prescribes as a result of a criminal conviction amounts to a nearly incomprehensible package. In 2009, North Carolina instituted late fees for failure to pay a fine, and added a surcharge for being placed on a payment plan. Jurisdictions in at least nine states charge people extra fees for entering into payment plans, which are purportedly designed to make payments easier.
Leaving aside the not insignificant question of the morality of imprisoning people for debt (an issue that was supposedly resolved years ago), we note that no country incarcerates a higher percentage of its population than the United States. At 716 per 100,000 people, according to the International Centre for Prison Studies, the U.S. tops every other nation in the world (insert “American Exceptionalism” comment). The United States has about five percent of the world’s population, but 25 percent of the world’s prisoners. Prisons are already overcrowded in most places, so on the face, creating new reasons to put people in jail seems a bad idea.
Of course the idea of debtor’s prison also impacts more exactly the people who need more impacting less, the poor. People with money pay the fees and go home. People without money go to jail. In hard-hit Huron County, Ohio in 2012, twenty percent of all arrests were for failure to pay fines. By coincidence, Huron County has a poverty rate above twenty-six percent.
But Shouldn’t People Pay Their Debts?
The governments’ case is as predicted. “When, and only when, an individual is convicted of a crime, there are required fees and court costs,” said Pamela Dembe, of the First Judicial District of Pennsylvania. “If the defendant doesn’t pay, law-abiding taxpayers must pay these costs.”
She’s right of course. When people don’t pay their fees and court costs, it is indeed the taxpayer who ends up paying. But not in the way you might think. Locking up debtors costs money. The U.S. as a whole spends some $39 billion a year on locking people up. There are also incalculable collateral costs, such as families left without a parent. But really, it is about money. The costs to states of locking people up are significant– it costs an average of about $47,000 per year to incarcerate someone in California.
Now sure, Charlie Manson in Super Max and Poor Old Joe in the county lockup do not cost the same, but then again, logic isn’t always the winner: The Brennan Center reports that there are inmates in Pennsylvania who are eligible for release but are kept in prison based on their inability to pay a $60 fee. The daily cost of confinement is nearly $100 per day. In 2009, Mecklenburg County, North Carolina jailed 246 debtors who did not pay for an average of four days. The county collected $33,476 while the jail terms cost $40,000 — a loss for the county.
Stop Making Sense
So we are left with the question of why. Debtors’ prisons in the U.S. were declared unconstitutional, but states have re-implemented them anyway. A person locked up can’t earn money to pay the debt. And most significantly, it ends up costing many jurisdictions more money to punish someone for not paying than they would have “spent” just forgetting the debt. So why do states do this? To be fair, many states do not, and some that do often try and work out some sort of payment plan first. OK, good enough.
Now this may all be for the best. On the streets, nobody is overly concerned about providing food, medical care and shelter to poor people; outside they’re lazy, don’t want to work, nip at the public tit and all. Why, it would be socialism to help them after all. However, inside the prison system they all get food, medical and dental care, all tucked in a warm bed. Our society is apparently more ready to care for a criminal than for a citizen down on his luck.
The reality in America is that far too many people go to jail as punishment for not paying the fees and court costs incurred finding them already guilty of something else. One is left with a tough conclusion: we are more and more a crude, course society on path towards some sort of feudalism, where the rich (if ever brought to court at all) pay their money and walk out, while poor people are punished for no valid reason. We as a society want to set examples, clear the streets of our lowers, punish those who aren’t able to pay the government for giving them their day in court. That’s who we are now. And you better pay your bills.
A new report by the Urban Institute and Encore Capital Group’s Consumer Credit Research Institute shows 77 million Americans– 35 percent of those with files at a major credit bureau– have a debt in collection.
Nevada has the worst record, with 47 percent of consumers with a credit file showing a debt in collections. In twelve other states, including Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, New Mexico, North Carolina, South Carolina, Texas, West Virginia as well as the District of Columbia, more than 40 percent of residents with a credit file have a bill in collections. In some smaller areas, the in-collection number is as high as 61 percent.
The report also shows that 1 out of 20 Americans hold debt that is “past due,” i.e., more than one month delinquent, though not yet in the collection process. Collection usually kicks in after 180 days past due.
Meanwhile, about 22 million Americans make so little money that they do not have credit files.
Poverty is Profitable
But as you can expect, there is always someone profiting from poverty.
For example, in another area of debt, writing checks that exceed the amount in an account (bouncing a check), often in hopes of creating faux credit planning on money to flow in before the check is actually cashed, American banks collect $30 billion a year in overdraft fees.
Collection companies can be seen as a great investment. The companies buy debt cheap and collect high. For example, Bank A itself has no interest in chasing a person for, as an example, a $1000 overdue payment. That’s not the bank’s core business, banking is. So they sell it to a collections company for say 10 percent, or $100. If the company can get back from the consumer anything more than the $100, that’s profit. It can be a lot of profit– one hyper-successful company boasts of a 239% return. A more typical return on investment for a collections company is 20 percent, a nice profit in itself.
In 2010 agencies collected about $40 billion from consumers. Business seems good: there are 4,100 debt collection agencies in the United States, employing nearly 450,000 people, and the industry expects to grow by 23 percent over the next three years. The Association of Credit and Collection Professionals, the industry’s largest trade association, spent more than $660,000 on Congressional lobbying over three years.
So Stop Spending. You Don’t Need that Big Screen
The average American holds $15,000 in debt, about half of that on credit cards (though others put the credit card number at about $4000.) But more significantly, the national averages for mortgage debt are $154,365 and for student loans, $33,607.
A common statement at this point regarding those credit cards is “So stop buying things you can’t afford, especially with high interest rates. Duh.” While there are no doubt people who misuse their credit to buy frivolous things, credit cards are to many in the middle class what pay day loans and pawn shops are to the poor: easy to access money for daily needs when there are no alternatives.
However, according to an analysis of spending from First Data, a major payment processing company, Americans increasingly used credit to purchase food and other everyday necessities. “During the month studied we saw consumers reducing the growth of their discretionary spending at retail merchants and increasingly resorting to credit for necessities,” said a statement. Spending in clothing stores, restaurants and bars declined, while credit spending at general merchandise stores, including value retailers and discount stores, increased.
BONUS: Some 46 million Americans receive benefits from the Supplemental Nutritional Assistance Program, what food stamps are now called. Hmmm… More than 1 out of 3 Americans are indebted, and about 1 out of 6 are dependant on the government to eat. Why, you’d almost think that was a strategy of control or something. But, naw, couldn’t be.
I am quite pleased to have joined the Advisory Board of ExposeFacts.org.
The group’s message is clear: encourage more government officials to blow the whistle. As said on their website, “ExposeFacts.org represents a new approach for encouraging whistleblowers to disclose information that citizens need to make truly informed decisions in a democracy. From the outset, our message is clear: “Whistleblowers Welcome at ExposeFacts.org.”
I’m sort of amazed I fit in alongside the others working with ExposeFacts: Barbara Ehrenreich, Dan Ellsberg, Tom Drake, Jesselyn Radack, Michael Ratner, Matt Hoh, Coleen Rowley, Ann Wright and Ray McGovern. So there’s yer humble brag for today.
I am also quite pleased that half a block from the State Department in Washington, at a bus stop used by America’s diplomats, ExposeFacts erected its first outdoor advertisement encouraging government employees to blow the whistle (photo above; that’s Matt Hoh there, not me). The ad shows Pentagon Papers whistleblower Daniel Ellsberg alongside the words “Don’t do what I did. Don’t wait until a new war has started, don’t wait until thousands more have died, before you tell the truth with documents that reveal lies or crimes or internal projections of costs and dangers. You might save a war’s worth of lives.”
ExposeFacts will erect more such ads at other prominent locations in Washington and beyond. As an advisory board member, I’m glad to report that outreach to potential whistleblowers is just getting started.
(For those new to the blog, I am a State Department whistleblower, so this all resonates with me personally as well as a concerned American. Learn more in my book We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (American Empire Project))
Not that America has become a divided, classist society or anything. Oh wait, it has.
New York City approved plans for a new 33-story luxury high-rise at 40 Riverside Drive on the Upper West Side of Manhattan that will include a separate entrance for tenants in “affordable” housing, what some have called the “poor door.” The high-rise has both super-luxe units worth millions, and some affordable housing units. Rich residents come in the front door. Poor residents enter through the side door. The expensive units overlook the Hudson River waterfront. The affordable units are in a “building segment” that faces the street. “Affordable” folks cannot enter the rich side of the building and are prohibited from using any of the building’s amenities. The way the architecture was specifically designed, the two groups will never mingle.
Affordable Housing in a Luxury Building?
Why does such a luxury building have affordable housing units in the first place? Well, so the rich can manipulate New York’s housing laws for their own benefit.
Including some affordable housing units in your new construction buys you two distinct advantages in New York. The first is that the developer is allowed to build a much taller building (and thus having more apartments to sell), skirting zoning laws and claiming valuable “air rights” for the benefit of the poor, of course. The air rights the developer will claim are worth millions in crowded Manhattan. The benefits even apply if you build your luxury tower in one part of Manhattan and your affordable units “off site,” maybe in a nasty part of town.
A developer can also qualify for the program by building condos on “areas of Manhattan of underutilized or unused land,” wherever those may be on some of the most densely populated land in the world.
The biggest advantage of including the affordable units in a luxury building is the massive tax breaks all residents share. New York waives or significantly lowers property taxes, meaning the rich, who need never see or interact with their poor neighbors, make money off their presence. It’s all called the “Inclusionary Housing Program,” or officially, the 421a program.
Here’s an example of how significant these tax breaks can be drawn from another super-luxury building in midtown Manhattan that included some affordable housing units. On an apartment purchased in 2007 for $1.5 million, the owner paid just $35 a month in property taxes. That creeped up to only $374 a month in 2011. When the exemption expires in 2018, the actual monthly tax bill will be an estimated $1,629. Note also any that real estate taxes paid are tax-deductible from one’s income.
Developers Getting Rich off the Poor
Another New York developer, who has built “poor door” buildings, summed things up quite succinctly:
No one ever said that the goal was full integration of these populations. So now you have politicians talking about that, saying how horrible those back doors are. I think it’s unfair to expect very high-income homeowners who paid a fortune to live in their building to have to be in the same boat as low-income renters, who are very fortunate to live in a new building in a great neighborhood.
The developers of the poor door building under discussion have done well with tax breaks. Five of the luxury firm’s other apartment towers cost the city $21.8 million in tax revenue in their first year alone. Overall, as of 2012, property tax abatements in New York City totaled $2.9 billion, about 20 percent of actual property tax collections in the city.
So what’s the problem, some say, with poor folks gettin’ some uptown housing from the swells? History: Separate but equal favors the separate but never the equal part. It did not work as a solution for racial inequality and it won’t work as a solution for economic inequality. Indeed, one wonders if the building caught fire which door the fire department would go through first?
And there you have it, another tidy example of how taxes and laws are rigged to favor the people who already have the most money. Go ahead, work as hard as you like; this game, friends, has already been decided.
Japan’s main broadcast station, NHK (similar to PBS here in the U.S.) dropped by for an interview about my new book, as well as a discussion about an event from my past, my brief encounter with chess great turned psycho Bobby Fischer.
Ghosts of Tom Joad is of interest to Japan for two reasons. First, the main time frame in the book, the late 1970s and early 1980s, represents arguably the high point of the Japanese industrial economy. That was the era of Japan as Number One: Lessons for America, the time when Japanese investors poured money into U.S. real estate, including high-profile purchases such as Rockefeller Center and the Pebble Beach golf course. Of course, Japan’s economic ascendancy was fueled in large part by their industrial exports, especially cars and steel to the U.S. One of the factors of American de-industrialization was the loss of jobs to Japan.
In the way that history loves irony, Japan has interest in Ghosts now also because it is experiencing its own era of de-industrialization. We’re painting in broad strokes here (economists, relax a bit), but much of Japan’s current industrial malaise is due to cheap imports from China and other parts of Asia. Japanese companies are increasingly moving production abroad in search of cheaper labor. Ghosts, to some in Japan, is both a history of Japan’s role in America, and a road map to it’s potential future, with a dash of prophecy.
BONUS: About Bobby Fischer. Bobby you’ll recall was a Cold War hero in America after beating Soviet chess champ Boris Spassky in Iceland in 1972. Fischer went on to lose to his mind, as well as play a for-money chess match in what was then Yugoslavia. The latter violated U.S. trade sanctions of the time, and turned Fischer into a wanted man. He avoided U.S. law enforcement for many years by traveling around the world, until by accident, aided by post-9/11 snooping, Homeland Security found him in Japan. My job at the U.S. embassy there included the revocation of U.S. passports. Homeland Security and State, via me, took away Bobby’s passport in a preview of what would later be done to Edward Snowden.
Why do we need to read history? Why does history matter? Because history helps us to hear the little voices, to discriminate among them, and to silence, perhaps, some of the more troublesome ones. And to act on those little voices, the right ones, when they tell us something important.
For an explanation of this, let’s crack open my favorite novel, The Sand Pebbles, by Richard McKenna. You might have heard of it somewhere along the way; you might also have seen the 1968 movie, with Candice Bergen and Steve McQueen, which was a fairly decent film.
The book is noteworthy because it is one of a scant handful of novels about machinery, written by an author who firsthand knew and understood the world of machinery. I’ve always been a sprockethead first class, so seeing machinery written about this well always appealed to me. The book also has passages of descriptive sociology and cultural anthropology of the first order running through it; particularly about the world of men. It is also the best book ever written about the below decks Navy—the U.S. Naval Academy at Annapolis thought so too and said so on the dustjacket when their press reprinted it some years ago.
McKenna wrote this book after he retired after 20-something years as a torpedo mechanic in the Navy. Sadly, McKenna died way too young from a heart attack, shortly after this book’s publication.
The Sand Pebbles is the story of a Caliban-like machinist’s mate in the China Fleet in the 1920s, back when the US, as well as the other Western powers, ran their warships up and down the major rivers of China. The protagonist, Jake Holman, is posted to the most obscure ship on the China Station, patrolling the far reaches of the Yangtze River. Once aboard, Holman makes it a point, as he always had done, to master every single aspect of the ship’s engineering spaces. The ship is a creaky old relic taken from Spain after the Spanish-American War of 1898, and it has a knock in the engine that has always been there and that has always defeated all prior repair efforts. The knock causes main bearing wear that in turn causes increased coal burning and regular major repairs to clean and re-clearance the ship’s crank bearings. Holman is driven to find out what the cause of the knock is, and to fix it.
Early on in the book Holman is spending time in the ship’s bilges, sloshing around in the dirty bilge water, getting the rustproofing tar in his uniforms and skin and hair, staring at the huge pieces of rotating machinery just inches from his face, trying to figure out the problem.
McKenna talks about all the little voices in the engine room around Holman, all the little noises of the machinery in operation, all its sights and smells, and how it is all a confusing welter of little voices, each trying to be heard. He can hear them, but he can’t hear the right one, on account of the crowded welter of them all, and his ignorance of what voice he should be listening for.
Under the ship’s main crank spinning overhead, Holman sees a drop of oil on the engine soleplate, a drop of oil that expands and contracts regularly. All of a sudden, Holman recognizes that he’s seeing something important–this drop of oil, expanding and contracting, indicates relative movement in the soleplates, where they should be absolutely dead tight. Holman picks up a ballpeen hammer and beats on all the soleplate bolts, and discovers that many of them are loose.
The light bulb goes off in Holman’s head–the soleplate bolts are loose, and the soleplates therefore are in misalignment, causing the rest of the machinery to be in misalignment, all on account of a long-ago grounding that bent the hull slightly. Making the soleplates true and tight to the hull will fix the problem that has dogged the ship’s engine for decades.
McKenna goes on for a spell about the little voices in the passage that tells the above story. Anyone who has worked around machinery knows about those little voices, because they are always out there in machinery, telling you the machine’s story about what’s right and what’s wrong, and what you can do to fix it if it is broken. Anybody who is any good as a wrench, or e-tech, knows about the little voices and how important it is to listen for them. You don’t fix broken things very well without having an ear for the little voices, no matter how skilled you are as a technician. To be any good, you have to have the craft knowledge, the skills, AND the ear for the little voices.
The story of Jake Holman in The Sand Pebbles is really the same story about us and history. History gives us, should we choose to use it, the ability to hear the little voices that tell us the key important facts about some big event going on around us, some big event that is surrounded by a huge welter of competing voices. And if we read history with a keen eye—if we listen to it with discriminating ears–we are far better able to pick out the right little voice out there from all the welter of them that explains things to us, and gives us, combined with our life craft-skills that we acquire as we live and learn, the ability to understand, and perhaps even fix, the problems in our world that bedevil us.
Ace technicians, with a sure eye, ear, and feel for the little voices, are rare, as are ace historians, and ace political leaders. But we all can do better if we are aware of these little voices, and try at least to listen for them. And that is what the study of history is for.
Here’s an example from our today. In our train-wreck of a war in Afghanistan, the Afghan National Army’s (ANA) troops, which the US military is training, sometimes turn sides and shoot the trainers—Green on Blue violence is what the Pentagon calls it. Shoot the trainers, and if they aren’t themselves shot, they then defect to the Taliban.
Such attacks, according to the Pentagon, are unprecedented in human history. That’s rubbish. We only need look back to France’s war in Algeria (1954-62): to cock our heads and listen to the little voices of that war. Listen for that voice, and maybe heed it:
One day in the war there was this French infantry patrol out in the bled (the deep countryside) that got fired on by someone hiding in an orchard just outside this small village. The French patrol returned fire, and a dead fellaga (FLN—Front National Liberation, the Algerian Muslims fighting for Algeria’s independence from France) fell from one of the trees. The members of the patrol went over to his body to investigate and discovered that the person who shot at them was a very old man, who had let fly at them with some antique muzzleloader. The soldiers went through his pockets, and found a Medaille Militaire in his pocket, from the old man’s First World War days in the French Army. Thumbing the medal, and looking down at the corpse of the dead old man, the Lieutenant said, “You know, there’s just something terribly wrong with this war, terribly wrong.”
That fellaga, a combat veteran, knew what he was up against and what he was doing and how suicidal it was for him when he grabbed his muzzleloader and went to try and bag him a Frenchman. The obvious lesson was that the gig was up for France in Algeria, and that France had to leave. Even if that wasn’t quite clear yet to that Lieutenant. He, and most all of France, had not yet the ears to hear, even if the little voices were screaming it.
In that war, there were dozens of instances of Algerian troops killing their French officers and NCOs while they slept and then deserting to the FLN—in at least one instance, a full company of men did.
The French were deaf to what events like these were telling them about Algerie Francais. They refused to hear the little voices. We are equally deaf, and I’d say deliberately so in the Pentagon’s case, with what Green on Blue attacks are telling us about our war in Afghanistan.
When the Pentagon claims these attacks are unprecedented, beyond human ken and understanding, they’re willfully refusing to pay any attention to the discordant voices of history. Anyone who has read anything about the French war in Algeria knows better about the lazy canards about Green on Blue put out by the Pentagon. Anyone who has read anything about counterinsurgency has read about that war, as the French were the foremost practitioners of counterinsurgency in the 20th century, and knows about the Algerian soldiers regularly mutinying and killing their French leaders and deserting.
The gig is up for us in Afghanistan, and the American endeavor in that country is every bit as dead as Algerie Francais. That is clear and beyond refutation.
That lesson should be obvious, if you know your history and understand the little voices studying it lets you hear. Few in this country have read any of that history, any history much period, and so we don’t hear those little voices, and so the problems we face remain beyond our ken to understand enough to fix. But Jake Holman heard those voices in the engine room, and he fixed that engine. But that’s another, absolutely great, story from that book that I’ll leave to you.
This piece by Dan White originally appeared on The Contrary Perspective and is reprinted by permission because it is worth reading.
You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted — about one-third of the text is missing — Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury, and executioner.
Due Process in Constitutional America
Looking back on the violations of justice that characterized British rule in pre-Constitutional America, it is easy to see the Founders’ intent in creating the Fifth Amendment. A government’s ability to inflict harm on its people, whether by taking their lives, imprisoning them, or confiscating their property, was to be checked by due process.
Due process is the only requirement of government that is stated twice in the Constitution, signaling its importance. The Fifth Amendment imposed the due process requirement on the federal government, while the Fourteenth Amendment did the same for the states. Both offer a crucial promise to the people that fair procedures will remain available to challenge government actions. The broader concept of due process goes all the way back to the thirteenth-century Magna Carta.
Due process, as refined over the years by the Supreme Court, came to take two forms in Constitutional America. The first was procedural due process: people threatened by government actions that might potentially take away life, liberty, or possessions would have the right to defend themselves from a power that sought, whether for good reasons or bad, to deprive them of something important. American citizens were guaranteed their proverbial “day in court.”
The second type, substantive due process, was codified in 1938 to protect those rights so fundamental that they are implicit in liberty itself, even when not spelled out explicitly in the Constitution. Had the concept been in place at the time, a ready example would have been slavery. Though not specifically prohibited by the Constitution, it was on its face an affront to democracy. No court process could possibly have made slavery fair. The same held, for instance, for the “right” to an education, to have children, and so forth. Substantive due process is often invoked by supporters of same-sex unions, who assert that there is a fundamental right to marry. The meaning is crystal clear: there is an inherent, moral sense of “due process” applicable to government actions against any citizen and it cannot be done away with legally. Any law that attempts to interfere with such rights is inherently unconstitutional.
On September 30, 2011, on the order of the president, a U.S. drone fired a missile in Yemen and killed Anwar al-Awlaki. A Northern Virginia Islamic cleric, in the aftermath of 9/11 he had been invited to lunch at the Pentagon as part of a program to create ties to Muslim moderates. After he moved to Yemen a few years later, the U.S. accused him of working with al-Qaeda as a propagandist who may have played an online role in persuading others to join the cause. (He was allegedly linked to the “Underwear Bomber” and the Fort Hood shooter.) However, no one has ever accused him of pulling a trigger or setting off a bomb, deeds that might, in court, rise to the level of a capital crime. Al-Awlaki held a set of beliefs and talked about them. For that he was executed without trial.
In March 2012, Attorney General Eric Holder made quite a remarkable statement about the al-Awlaki killing. He claimed “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” In other words, according to the top legal authority in the nation, a White House review was due process enough when it came to an American citizen with al-Qaeda sympathies. In this, though it was unknown at the time, Holder was essentially quoting a secret white paper on that killing produced by the Office of Legal Counsel, located in the department he headed.
In June 2014, after a long court battle to shield the underlying legal basis for the killing, the Obama administration finally released a redacted version of that classified 2010 white paper. In the end, it did so only because without its release key senators were reluctant to confirm the memo’s author, David Barron, who had been nominated by President Obama to serve on the First Circuit Court of Appeals. (Once it was made public, Barron was indeed confirmed.)
The importance of the white paper to understanding Post-Constitutional America cannot be understated. Despite all the unconstitutional actions taken by the government since 9/11 — including striking violations of the Fourth Amendment — this paper is to date the only glimpse we have of the kind of thinking that has gone into Washington’s violations of the Bill of Rights.
Here’s the terrifying part: ostensibly the result of some of the best legal thinking available to the White House on a issue that couldn’t be more basic to the American system, it wouldn’t get a first-year law student a C-. The arguments are almost bizarrely puerile in a document that is a visibly shaky attempt to provide cover for a pre-determined premise. No wonder the administration fought its release for so long. Its officials were, undoubtedly, ashamed of it. Let’s drill down.
Death by Pen
For the killing of an American citizen to be legal, the document claims, you need one essential thing: “an informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack against the United States.” In addition, capture must be found to be unfeasible and the act of killing must follow the existing laws of war, which means drones are okay but poison gas is a no-no.
The rest of the justification in the white paper flows from that premise in a perverse chain of ankle-bone-connected-to-the-leg-bone logic: the president has the obligation to protect America; al-Qaeda is a threat; Congress authorized war against it; and being in al-Qaeda is more relevant than citizenship (or as the document crudely puts it, “citizenship does not immunize the target”). International borders and the sovereignty of other nations are not issues if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.” Basically, it’s all an extension of the idea of self-defense, with more than a dash of convenience shaken in.
When the white paper addresses the Fifth Amendment’s right to due process, and to a lesser extent, the Fourth Amendment’s right against unwarranted seizure (that is, the taking of a life), it dismisses them via the “balancing test.” Not exactly bedrock constitutional material, it works this way: in situations where the government’s interest overshadows an individual’s interest, and the individual’s interest isn’t that big a deal to begin with, and a mistake by the government can later be undone, the full due process clause of the Fifth Amendment need not come into play.
The three-point balancing test cited by the white paper as conclusive enough to justify the extrajudicial killing of an American comes from a 1976 Supreme Court case, Mathews v. Eldridge. There, the court held that an individual denied Social Security benefits had a right to some form of due process, but not necessarily full-blown hearings. In Anwar al-Awlaki’s case, this translates into some truly dubious logic: the government’s interest in protecting Americans overshadows one citizen’s interest in staying alive. Somehow, the desire to stay alive doesn’t count for much because al-Awlaki belonged to al-Qaeda and was in the backlands of Yemen, which meant that he was not conveniently available by capture for a trial date. Admittedly, there’s no undoing death in a drone killing, but so what.
The white paper also draws heavily on the use of the balancing test in the case of Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan Yaser Hamdi, a Saudi-American citizen, and sought to detain him indefinitely without trial. After a long legal battle that went to the Supreme Court, the balance test was applied to limit — but not fully do away with — due process. Despite limiting Hamdi’s rights in service to the war on terror, the court was clear: Yaser Hamdi should have a meaningful opportunity to challenge his status. Fearing that giving him his moment in court would expose the brutal reality of his capture, interrogation, and detention, the U.S. government instead released him to Saudi Arabia.
Hamdi’s case dealt with procedural questions, such as whether he should be allowed a trial and if so, under what conditions. As with Mathews v. Eldridge, Hamdi never focused on issues of life and death. Cases can be (re)tried, prisoners released, property returned. Dead is dead — in the case of al-Awlaki that applies to the drone’s target, the balance test, and the Fifth Amendment itself.
What Do Words Mean in Post-Constitutional America?
Having dispensed with significant constitutional issues thanks to some exceedingly dubious logic, the white paper returns to its basic premise: that a kill is legal when that “informed, high-level official” determines that an “imminent threat” to the country is involved. In other words, if the president is convinced, based on whatever proof is provided, he can order an American citizen killed. The white paper doesn’t commit itself on how far down the chain of “high-level officials” kill authority can be delegated. Could the Secretary of the Interior, for instance, issue such an order? He or she is, after all, eighth in the line of succession should the president die in office.
The white paper does, however, spend a fair amount of time explaining how the dictionary definitions of “imminent” and “immediate” do not apply. For kill purposes, it says, the U.S. must have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” However, the paper goes on to explain that “immediate” can include a situation like al-Awlaki’s in which a person may or may not have been engaged in planning actual attacks that might not be launched for years, or perhaps ever. The paper claims that, since al-Qaeda would prefer to attack the U.S. on a continual basis, any planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack that requires sending in the drones.
And if, as perhaps the author of the paper suspected, that isn’t really enough when faced with the bluntness of the Constitution on the issue, the white paper haphazardly draws on the public authority justification. According to this legal concept, public authorities can, in rare circumstances, violate the law — a cop can justifiably kill a bad guy under certain conditions. By extension, the white paper argues, the government of the United States can drone-kill a citizen who is allegedly a member of al-Qaeda. The white paper conveniently doesn’t mention that police shootings are subject to judicial review, and those who commit such unlawful acts can face punishment. The laws behind such a review are unclassified and public, not the rationed fodder of a redacted white paper.
For the final nail in the coffin of some American citizen, the white paper concludes that, Fifth Amendment violation or not, its arguments cannot be challenged in court. In cases of “foreign policy,” courts have traditionally almost always refused to intervene, holding that they are in the realm of the executive branch in consultation, as required, with Congress. Killing an American abroad, the white paper insists, is a foreign policy act and so none of any courts’ business.
Substantive due process legally applies only to legislation, and it is highly unlikely that the Obama administration will seek legislative sanction for its kill process. So it is in one sense not surprising that the white paper makes no mention of it. However, looking at what we can read of that redacted document through the broader lens of substantive due process does tell us a lot about Post-Constitutional America. In Constitutional America, the idea was that a citizen’s right to life and the due process that went with it was essentially an ultimate principle that trumped all others, no matter how bad or evil that person might be. What is important in the white paper is not so much what is there, but what is missing: a fundamental sense of justness.
As medieval kings invoked church sanction to justify evil deeds, so in our modern world lawyers are mobilized to transform government actions that spit in the face of substantive due process — torture, indefinite detention without charge, murder — into something “legal.” Torture morphs into acceptable enhanced interrogation techniques, indefinite detention acquires a quasi-legal stance with the faux-justice of military tribunals, and the convenient murder of a citizen is turned into an act of “self-defense.” However unpalatable Anwar al-Awlaki’s words passed on via the Internet may have been, they would be unlikely to constitute a capital crime in a U.S. court. His killing violated the Fifth Amendment both procedurally and substantively.
Despite its gravity, once the white paper was pried loose from the White House few seemed to care what it said. Even the New York Times, which had fought in court alongside the ACLU to have it released, could only bring itself to editorialize mildly that the document offered “little confidence that the lethal action was taken with real care” and suggest that the rubber-stamp secret Foreign Intelligence Surveillance Court be involved in future kill orders. The ACLU’s comments focused mostly on the need for more documentation on the kills. Meanwhile, a majority of Americans, 52%, approve of drone strikes, likely including the one on Anwar al-Awlaki.
The Kind of Country We Live In
We have fallen from a high place. Dark things have been done. Imagine, pre-9/11, the uproar if we had learned that the first President Bush had directed the NSA to sweep up all America’s communications without warrant, or if Bill Clinton had created a secret framework to kill American citizens without trial. Yet such actions over the course of two administrations are now accepted as almost routine, and entangled in platitudes falsely framing the debate as one between “security” and “freedom.” I suspect that, if they could bring themselves to a moment of genuine honesty, the government officials involved in creating Post-Constitutional America would say that they really never imagined it would be so easy.
In one sense, America the Homeland has become the most significant battleground in the war on terror. No, not in the numbers of those killed or maimed, but in the broad totality of what has been lost to us for no gain. It is worth remembering that, in pre-Constitutional America, a powerful executive — the king — ruled with indifference to the people. With the Constitution, we became a nation, in spirit if not always in practice, based on a common set of values, our Bill of Rights. When you take that away, we here in Post-Constitutional America are just a trailer park of strangers.
Parallel Construction is a technique used by law enforcement to hide the fact that evidence in a criminal case originated with the NSA. In its simplest form, the NSA collects information showing say a Mr. Anderson committed a crime. This happens most commonly in drug cases. The conclusive information is passed to the Drug Enforcement Agency (DEA), who then works backwards from the conclusion to create an independent, “legal” body of evidence to use against Mr. Anderson.
Example: an NSA email intercept shows our Mr. Anderson received a Fedex package with drugs, which he hid under his bed. The DEA takes this info, and gets a search warrant for the Fedex data, which leads them to Mr. Anderson’s apartment. A new legal warrant authorizes a search, and agents “find” the drugs under the bed right where the NSA said they were in the first place.
Some may call this little more than illegal evidence laundering.
Some Constitutional Background
The Fourth Amendment to the Constitution protects Americans against unreasonable and unwarranted searches. The Supreme Court has generally held that searches of, for example, someone’s home, require a warrant. That warrant can be issued only after law enforcement shows they have “probable cause.” That in turn has been defined by the Court to require a high standard of proof, “a fair probability that contraband or evidence of a crime will be found in a particular place.” The NSA pulling information out of the cyberspace ether bypasses and thus violates the Fourth Amendment.
The NSA violations of the Fourth Amendment enable further DEA and other law enforcement violations of the Fifth Amendment, specifically the critical due process clause. The concept of due process dates back to the 13th century Magna Carta.
Specifically, the use of information obtained illegally and whose ultimate source is concealed from the accused violates procedural due process. This is the requirement that before any government actions to take away life, liberty or possessions, the persons affected have the right to defend themselves, to understand the evidence against them, and to question and call witnesses in rebuttal, one’s “day in court.” In short, procedural due process aims to protect individuals from the coercive power of government by ensuring that adjudication processes are fair and open.
DEA is blunt in a document released via FOIA as to how conveniently parallel construction violates these rights:
Our friends in the military and intelligence community never have to prove anything to the general public. They can act upon classified information without ever divulging their sources or methods to anyway [sic] outside their community.
Why Do This to Americans?
With exceptions, courts have held that evidence obtained illegally cannot be used in trial. So why bother to fight for an exception when, using NSA data surreptitiously, evidence can subsequently be obtained cleanly under a warrant, albeit a warrant issued by a court kept ignorant of the source of the underlying information. Another reason to use parallel construction is to hide the NSA’s role. Apart from the broader goal of not disclosing to the American people what their government is doing, blurring the trail back to the NSA gets around any courtroom attempts that require such data to be shared with the defense. And of course the defense can’t ask for something it does not know exists. Lastly, if defendants do not know the ultimate source of the information used to convict them, they cannot know to ask to review potential sources of exculpatory evidence– information that could reveal entrapment, mistakes or biased witnesses.
Needless to say, using information obtained already pre-packaged from the NSA makes DEA’s and other law enforcement agencies’ jobs much easier. They have to do little work on their own to gather the data needed to track down Americans they seek to prosecute. It’s all in the bag.
DEA as the Nexus
DEA seems to be the center of the NSA distribution network, as the program originally started as a way to bust foreign drug dealers before it metastasized into the currrent tool for broadly evading the Bill of Rights.
How widespread domestically is the practice of parallel construction? No one knows. It is known that the unit of the DEA that distributes the NSA information is called the Special Operations Division (SOD.) It partners with two dozen other agencies, including the FBI, CIA, Internal Revenue Service and the Department of Homeland Security. Once laundered of any NSA fingerprints, what those multiple agencies do with the data, and how far they themselves spread it to even more agencies, or to local law enforcement, is unknown.
Why it Matters
There have been complex questions raised about the hiding of NSA-obtained information used to convict Americans, leading to the Solictor General of the United States lying to the Supreme Court about how the Justice Department was not notifying defendants in situations when warrantless surveillance had led in turn to a wiretap order that produced evidence used in court. The Justice Department has taken to notifying some defendents that information obtained via warrantless survellience is being used against them, allowing for a likely Supreme Court challenge. The Justice Department has previously blocked Supreme Court challenges by hiding how information was obtained, thus denying the accused of “standing” in the Court’s eyes.
As part of the response to such government actions, organizations such as the Los Angeles County Bar Association are now offering for-continuing-education-credit tutorials to defense attorneys under titles such as “Criminal Prosecutions and Classified Information.”
A lot of attention Post-Snowden has been paid to what the NSA does– vacuum up emails, listen in on Skype chats and so forth. Too little attention has been devoted to what is done with the information NSA collects. The appetites of law enforcement agencies in Post-Constitutional America are bottomless, and the NSA holds terabytes of data to fill them.
“I’m still not sure exactly what happened,” said gaffe-prone, beleaguered Secretary of State John Kerry, “but I’m told I agreed to sanctions on myself.”
In an exclusive, Kerry explained his mistake.
“So there we were in the Middle East. I travel almost constantly, and at my age, even with a large staff, it can get hard to keep track. I mean, have you ever been to the MidEast? Every place looks like every other place. It’s hot, sandy, and each country seems to have some sort of odd headgear. Look, I’m not the first to get confused by all this.”
“Anyway, so I’m tired. We’re in West-Somewhere-Stan, some forsaken patch of garbage with no oil, where the national export is dust, and I’m shaking hands for a photo op with what seems like the same orphan I shook hands in Baghdad, Kabul, Cairo and Tunis. Does that kid travel on the plane with me? We had had some local food for lunch which did not agree with me, and so I proposed sanctioning humus. Maybe it was sort of a joke, maybe I meant Hamas, maybe it was the Ambien talking. Next thing I know, the State Department spokesperson in Washington is telling reporters I have imposed a sanction on a beloved food product.”
“It really hits the fan then. Half the Middle East turns around and imposes retaliatory sanctions on me. Those people can’t agree on something simple like not killing each others’ kids, and bang! overnight they band together on some silly food thing. I had hoped it was going to blow over after another suicide bombing like always, but then Israel joins in the sanctions against me. Cray cray, amiright?”
Kerry leaned over to an aide, who confirmed for him that he had read his printed talking points correctly.
“Can’t be too careful, right?” joked Kerry, now chewing on the edge of the note card.
“So once Israel agreed to join every Arab nation on the planet in sanctioning me, my hands were tied. I mean, when Israel barks, I’m there with a Scooby treat, often a multi-million dollar treat. So, in a show of solidarity with Israel– who indeed has the right to defend itself against me, which I strongly support– I agreed to join the sanctions regime against myself. I even explained that the United States views the situation with concern to make it all official. Tomorrow I’ll add ‘grave concern.’ That’ll show me I mean business about myself.”
“Next thing I know, everybody in the U.S. is on TV about it. I thought nobody actually watched those Sunday morning news shows, but it turns out that Fox has an intern who takes notes if she’s up early. Pretty soon all of the media has opinions on this, some former Ambassador is writing an Op-Ed and then Barack orders me to come home and not leave my room.”
“So we get on the plane and I’m relaxing with a stiff drink when out the window I see three F-18′s escorting us. My pilot tells me they’re trying to force us to land somewhere, saying I’m violating my own sanctions by flying, plus I’m on the No-Fly list now. Guess what? I end up in Moscow! Nearest airport somehow. You’d think they had a lot of places to stay there with capitalism and all, but I found out all the VIPs are stuck in the same place, which was booked solid for the Ukrainian National Day celebration, and I get stuck on Edward Snowden’s couch for the night. Awkward.”
“At least the guy is pretty quiet, though he leaves his towels on the floor in the shower. And who doesn’t flush? But we got along OK and he even helped me with my laptop. The State Department still runs some software thingie I’m told is called “Windows XP” and Snowden told me it hadn’t been ‘patched’ since ‘like when the first Matrix came out.’ I had left the paper with all my passwords on the plane, but he knew mine somehow. He even said he installed a free ‘keylogger’ for me and some other good stuff. I asked him if I needed a new laptop and he was adamant that I should never, ever stop using the one he had installed all that magic stuff on. What could I say? Hah hah, I can’t even program my VCR I told Ed.”
“That was apparently funny, because my aide had to explain to Ed what a VCR was. Ed said ‘LOL,’ which made me feel good after all those sanctions.”
“How it could the day get worse? One word– Vladimir Putin. Really, what is that guy’s problem? Putin shows up on TV opposing sanctions against me. C’mon, does that dude have to oppose everything we do? Yeah, apparently he does. So I have to throw together a press conference where I call out Putin for opposing sanctions on me, and call on the international community to robustly support even greater sanctions against me. The EU issues a statement saying they resolutely aren’t sure what their position is, and the press sniping starts all over. I’m stuck ‘accidentally’ saying into an open mic I’m personally really angry at myself for not upholding the sanctions. What a mess.”
“Next thing I know, my own State Department starts Tweeting about the sanctions, hashtagging my sorry self with junk like #SaveALifeSanctionKerry. Worse yet, they’re sending me emails asking me to approve the Tweets about myself, something about policies come and go but bureaucracy remains. Man, me and Snowden had a laugh about that one. He knew my password for Netflix and so we just chilled after that.”
“So here I am stuck in Russia with all these sanctions on me. I hear Obama is threatening to ‘ratchet down’ the sanctions on me if China doesn’t lower tariffs. I’d like to fly there and sort that out, but with the sanctions I’m really over a barrell. I can’t even use my card at the ATM. At this point I’m not sure what to do next. I’m thinking of calling up Jon Stewart and seeing if he’ll weigh in for me. He’s about the only guy left Barack really listens to. Wish me luck.”
We were warned we might become this way.
In the 1928 case of Olmsted v. The United States, at issue before the Supreme Court was whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the defendant’s rights under the Fourth and Fifth Amendments. In a 5-4 decision, the Court held that rights were not violated and the evidence obtained without a warrant could be used.
In his dissent, Justice Louis Brandeis wrote:
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law…
Like Father, Like Son
In an era where Big Government acts in open contempt of the rule of law, killing its own citizens without due process, torturing its people, recklessly spying on them and taking away their right to free speech, it is little surprise that Small Government seeks to do the same. Petty is what petty does. Much of this all manifests itself in the militarization of our police coupled with their criminalization of everything.
Militarization of the Police
There are too many examples of violence for even a short list: a defendant killed by police at his own trial; a lengthy and detailed report that found the Albuquerque, New Mexico Police Department engages in the practice of excessive force, including deadly force, in violation of the Fourth Amendment; a false-postive drug test leading to a SWAT assault on an innocent family; a baby burned into a coma by a flash-bang grenade thrown by another SWAT team in another unnecessasry home raid; a woman sexually assaulted by a cop in a courthouse who then arrested her for reporting it; LA sheriffs beating a chained inmate; cops choking a non-resisting drunk into unconsciousness; police blindsiding a woman with a nightstick at basketball celebration; police killing a 93 year old woman in her own home; cops tasering and beating a deaf man trying to communicate with them in sign lanaguage and on and on.
Criminalization of Everything
Concurrent with the increasing acts of unwarranted violence by police against the citizens they are sworn to protect and serve are attempts to criminalize as much behavior as possible, whether it represents any threat to society at large (long sentences for minor marijuana possession) or is simply an excuse to bust heads (not dispersing immediately equating to resisting arrest.)
But here’s how it has morphed into even more, an assault on First Amendment rights. And even though the cops lost in some of the following cases, the pattern is too clear to ignore, too dark to high-five over a win.
Cops in multiple states– cases have been tried in Maryland, Florida, Tennessee, Missouri and Oregon– have arrested drivers for flashing their headlights. It is not uncommon for drivers to flash their lights at incoming traffic to warn of a police speed trap ahead. The result of the flashing is that incoming drivers slow down, precisely the real point of the law. Cops, however, claim the flashing lights are an interference with law enforcement.
In the most recent case, in Oregon, a judge did find that motorists flashing their headlights amounts to speech protected by the First Amendment, similar to when people honk their horns to welcome home the troops. “The citation was clearly given to punish the Defendant for that expression,” the judge wrote. “The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct.”
Videotaping the Police
Reaching back to the 1992 Rodney King beating in Los Angeles, police have been caught on camera in a seemingly-endless-string of beatings. The typical pattern is that before the video is shown, the beaten person is accused of resisting arrest and the cops claim the violence they visited on him was unfortunate, but necessary and appropriate. Then the video comes to light and the brutality is revealed.
So it is little surprise that the cops have tried to criminalize videotaping the cops. Evil only works well in the dark after all. A recent case in New Hampshire, however, may help forestall the dark a bit.
A woman was following a friend’s car to his house when an officer pulled him over. From about 30 feet away, after getting out of her car, the woman announced she was going to audio-record the police stop of her friend. The cops arrested her and charged her with wiretapping, along with disobeying a police officer, obstructing a government official, and unlawful interception of oral communications. Though the woman was never prosecuted, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights.
An appeals court sent the case back to trial. The cops settled for $57,000 (using taxpayer money to pay off the suit; small change really. In 2012 Boston paid a citizen $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his felony arrest for videotaping police roughing up a suspect) before the case when to full trial, allowing for a minor victory albeit at the cost of not having a court declare war on the abuse of a citizen’s First Amendment rights.
Another woman was not so successful. She was charged with using a mobile phone “hidden” in her purse to audio-record her own arrest. The cops charged her with wiretapping under Massachusetts law, which says people may record police officers only in public places, and only if the officers are aware that a recording is taking place.
The ACLU asserts “since 9/11, a disturbing pattern of innocent individuals being harassed by the police for taking still and video photographs in public places has emerged across the country.” ACLU has a long list of specific cases.
The ACLU also notes “Another disturbing trend is police officers and prosecutors using wiretapping statutes in certain states (such as Florida, Illinois, Maryland, Massachusetts, New Jersey and Pennsylvania) to arrest and prosecute those who attempt to record police activities using videocameras that include audio.”
Again in Massachusetts, a woman who videotaped a cop beating a motorist with a flashlight posted the video online. Afterwards, one of the cops caught at the scene filed criminal wiretapping charges against her, though she was never prosecuted.
There are many, many more examples of the criminalization of the First Amendment. Even when charges don’t stick, the act of being arrested, possibly mistreated, often serves the cops’ purpose.
Fish rot from the head they say, and as Justice Louis Brandeis tried to warn us some 80 years ago. When the federal government claims itself exempt from the Constitution, don’t be surprised when your local cops say the same.
Speaking via video link (he uses Skype!) from Russia to the HopeX hackers’ conference in New York City July 19, Edward Snowden issued a call to arms to those present. Engineers, he said, “need to think now in adversarial terms to defeat government technical capabilities.” While the government now uses technology to shield themselves from accountability, software and hardware must “become a way to express our freedoms while protecting our freedoms.”
Technology and Government
Snowden went on to make a number of important points regarding the new relationship technology has created between the government and the people.
– Technology now makes it possible to publish information without the government’s ability to stop it. While the photocopier was the “killer app” of Daniel Ellsberg’s day, Wikileaks and Snowden’s own revelations show the empowerment potential of technology. Snowden reminded the audience that when the government fears its people (as opposed to the inverse), that is democracy.
– The value of masses of documents– evidence– cannot be understated because it cannot be ignored. Only mass evidence of NSA illegal spying “brought the president to the podium, and the people back to the table of government.”
– Snowden noted his and other whistleblowers’ attempts to “go through channels” with their concerns, but cautioned “The American Revolution was not fought for the right to channels.”
– Secret courts interpreting secret laws to issue secret findings carried out by secret agencies in secret defines much of our world today. The government through this “exploit chain” has shut us out from the process and policies that impact our lives.
– Via his NSA revelations, we now know a new truth about our world, that who we love, who we spend time with, who we hate is now known by people who are not held accountable, not even by the full Congress.
Encoding Our Rights
Snowden’s most important points were part of a call to action for technologists. He emphasized encryption, while very important, only protects content (what is written in your emails) and not metadata (information about to whom you send emails, for example.) This means, encryption or not, everything you communicate is being measured and analyzed; the government is programmatically examining our lives, in bulk, creating layers of suspicion by association. And in that sense, metadata is not about you, or me, it is about us, the collective us, all Americans and all others around the world.
In this sense, what the NSA is doing is perhaps greater, perhaps even worse, than “merely” listening in on what you say or reading what you write. They are, in a broader sense, creating a map of how every global citizen fits in with every other citizen. Pair that with whatever content is collected, and the NSA comes close to knowing everything.
That is why, Snowden told the crowd, the next job for us all, and Snowden’s own future work, will be to encode our rights into our technology, to take away by our own hands and intellect what the government has learned to use against us.
The key is to divorce the connection from the connector, i.e., create unattributable communications that destroy the government’s ability to collect and analyze metadata and run traffic analysis. Snowden gave the example of Tor, a secure enough networking tool. The big weakness of Tor is that the NSA can easily see that a computer has entered the Tor network, allowing them to otherwise easily target that computer, and, if possible, target the person associated with that computer. Same with someone who makes a call using the Verizon network. Divorcing the connection from the connector means cutting those links of association, forcing NSA to have to find some other means of targeting an individual or uncovering broader patterns.
A significant issue that holds many potential whistleblowers back is the risk of getting caught. Getting caught in this era means potentially life in prison, loss of family, loss of savings, loss of job and/or loss of status, position and identity. If technologists can lower the risk of getting caught, then that would likely make it more likely that more people would consider acts of patriotism and conscience. It is important that thousands (maybe hundred of thousands?) of people could have done what Snowden did, but only one man did it.
Snowden then made one of his most chilling, and significant points, unexpectedly.
He informed that crowd that there were almost certainly NSA operatives among them as he spoke. He explained that NSA has a budget just for sending people to hacker conferences, to see what they can learn, which people to look at further, and report back. Addressing those NSA people specifically, as well as the mass audience, Snowden challenged them directly to think about the world they wanted to live in, and then help build it.
Snowden just upped his game. In addition to his own work and revelations, he is now directing how others should proceed. He is combining technology and patriotism, whistleblowing and philosophy.
The NSA may be right; Edward Snowden may be the most dangerous man (virtually) in America.
Note: The presentation was built around a three-way discussion among Daniel Ellsberg, Trevor Timm and Ed Snowden. I’ve only reported on Snowden’s remarks, though seeing him interact with Ellsberg was like what I imagined being in the room would have been like when Bruce Springsteen met Pete Seeger.
Here’s the full audio of the presentation if you’d like to listen.
I recently spoke with KGNU‘s Claudia Cragg about my personal work experience at a store I call “Bullseye,” in the minimum wage Big Box economy and how this led to Ghosts of Tom Joad: A Story of the #99Percent.
Ghosts looks up close at the drastic effects of social and economic changes in America between WWII and the decline of the blue collar middle class in the 1980’s right up to today.
Have a listen to the full interview.
In the world of spying in general, and especially when you’re spying on allied nations, Rule No. 1 is “Don’t Get Caught.” Rule No. 2 is “Make Sure the Juice is Worth the Squeeze.” The U.S. broke both rules, several times, in Germany. For what?
Rule No. 1: Don’t Get Caught
Getting caught spying is never a good idea. Want to end a relationship? Have your girlfriend discover you looking through her cell phone. The same applies to nations. Though the adage “everyone spies on everyone” and its antecedent “spying is the world’s second oldest profession” are true, getting caught trumps both, especially when spying on a friendly nation.
In Germany, the U.S. was caught. Several times.
The Snowden revelations showed that not only did the United States (via the NSA) spy on Germany as a whole, vacuuming up all sorts of communications, but that it drilled down to the level of spying on Chancellor Angela Merkel’s personal cell phone. Recently, however, two more examples emerged.
The first involved a mid-level employee of the German intelligence service, arrested on July 2. The employee, identified only as Markus R., became of interest in May after he sent an email to the Russian consulate in Munich offering classified information. He even attached a sample intelligence document to his email, information suggesting another German official was a Russian spy.
German counterintelligence officials set up a trap, replying to Markus R. using a fake Russian email address, suggesting a meeting. Markus R. didn’t bite. Seeking help, the Germans forwarded Markus’ Gmail address to the Americans, asking if they recognized it. No reply from the Americans. Instead, Markus R.’s email address suddenly shut down. The Germans arrested Markus, who rolled over and provided proof he was spying for the U.S.
That other German official, maybe a Russian spy Markus dangled in front of the Russians? That took a curious twist. It turns out that German intelligence had had the guy on its radar since 2010, and had learned the man had taken trips paid for by an “American friend.” Soon after the Germans raided the guy’s home and, perhaps by coincidence, then immediately expelled the head of the CIA resident in Germany.
How Not to Get Caught
Sometimes things just go belly-up and there is not much you could have done. But often times there are things you could have done.
To begin, one must vet one’s agents, the foreign citizen who is paid to spy for you on his own country. Is he a flake? A fake? A glory seeker, an adventurer, a Walter Mitty-type? Has he shopped his information around to other spies? What is his motivation? If you pay him a lot of money, will he do stupid things like suddenly start buying luxury goods on a clerk’s salary? What are his weaknesses– if he talks too much to you when drunk, maybe he’ll do the same with others. If he can be played with women, men, drugs, gambling or whatever, well, the other side(s) knows how to do that too. The answers to these questions can help predict whether or not he can be trusted. After all, by your choosing to work with him, he now knows some of your secrets too.
Next up is assessing his ability to spy for you without doing things that will compromise the action. Does he understand how to communicate securely, how to be discreet, how to acquire documents without alerting his employer? Is he teachable, can he follow instructions on how to do all those things? If you give him secure ways to communicate, does he use them all the time, or does he panic and call over open channels? (Markus R., after his initial email(s), was apparently given a secure communications device by his American handler.)
What about the host nation? How good are they at counter-intelligence? How good are you at counter-counter-intelligence, knowing what they know about your activities? This dictates how much caution and discretion needs to be involved.
Markus R. apparently offered himself directly to the U.S. via an open email, and then went on to try the same with the Russians. In the latter instance, he communicated openly over Gmail, even attaching a sensitive document. Given the furor over the Snowden revelations in Germany, and his own position inside the German intelligence operation, it is impossible that he was unaware of the boneheadedness of such actions. This should have been a full-blown emergency sign inside the CIA.
Finally, don’t make it easy for the other side to catch you. Slamming shut the Gmail account right after the Germans asked the U.S. about it pretty much sealed the deal.
All of this brings us to Rule No. 2.
Rule No. 2: Is the Juice Worth the Squeeze?
In other words, for any given information (the juice), what effort is required to obtain it (the squeeze)? Similarly, what is the potential fallout if the squeeze is exposed? In the German caper, the violation of Rule No. 2 seems near-complete.
Following the Snowden revelations, it was dead solid perfect obvious that anything to do with additional spying inside Germany, never mind spying on Germany, would be sensitive enough to immediately reach the highest levels of both governments. That should have set off a careful evaluation of activity, with a risk analysis of each and every operation ongoing or planned. The question that should have been being asked was “If this gets out, given the likely bilateral fallout, can we justify that by what we learned?” In other words, was the info acquired so valuable to the U.S. that it was worth the firestorm that followed?
It does not appear that risk analysis was done, or if it was done, that anyone paid attention to it. Though full details are of course (for now…) unknown, it appears that Markus R. did not turn over documents critical to U.S. national security. Some reports claim what he revealed mostly dealt with what the German’s were doing about the earlier NSA revelations. According to one news source, Markus “admitted passing to an American contact details concerning a German parliamentary committee’s investigation of alleged U.S. eavesdropping disclosed by Edward Snowden.”
Though some agents are bought off very cheaply by the CIA, that seems less applicable in a first world nation such as Germany. You often do get what you pay for; the U.S. allegedly only paid Markus R. about $34,000.
Further risk was assumed by possibly involving a third country, also an ally. Reports suggest Markus R. traveled to Austria to meet his CIA handler, and that the whole operation was run primarily out of Austria. That can push the disruption of relations across a second border with little if any potential benefit to the United States.
There have been short-term negatives. The German Interior Ministry said it would cancel a contract with Verizon Communications. “The links revealed between foreign intelligence agencies and firms,” the ministry said in a statement, “show that the German government needs a high level of security for its essential networks.” A lot of rhetoric will pass. There is no doubt that American intelligence officers in Germany will come under greater scrutiny, likely reducing their effectiveness. Some points of intel cooperation between the U.S. and Germany may suffer.
But U.S.-German relations are long, deep and complex. The Markus R. incident, like the NSA revelations, will be hard to track in the broader picture. It will be hard to pinpoint specific changes in the relationship, as they will be subtle if not classified, or because they may not even occur.
Perhaps though the bigger lesson here is more domestic than foreign. Obama claims he was not informed of the Markus R. case, as he claimed he was not informed of NSA spying on Merkel’s cell phone. Was CIA action in the Markus case (and the NSA’s earlier actions) sensitive to their implications? Did the CIA act in concert with broader U.S. government goals and aims, or did they act with a lack of concern? The answers to those questions may tell us more about how things are working inside our own government than anything to do with foreign relations.
BONUS: There is a Rule No. 3, but if I told you that I’d have to kill you…
Contract Fraud with Your Money
Tim Ferner blew the whistle on a contract-steering scam involving a middleman in Florida and an engineering company hired to develop anti-terrorism techniques.
Tim Ferner suspected the scam in 2007 when his superiors at the Coalition and Irregular Warfare Center downplayed his concerns about how contracts were being doled out. Science Applications International Corporation (SAIC), received those contracts.
Ferner tried to go through military channels to stop the fraud he witnessed, Instead of helping, his superiors made his life difficult, even threatening to deploy him to Afghanistan while he was undergoing cancer treatment. Ultimately, he was fired from his job as Chief of Staff for the Coalition and Irregular Warfare Center at Nellis Air Force Base and relegated to a menial position. With channels closed off and retaliation underway, the case went to court.
SAIC and the government reached a settlement. The Department of Justice went to pains to note the settlement contained “allegations only and there has been no determination of liability.” However, SAIC agreed to pay the government $5.75 million to resolve allegations it circumvented the bidding process to obtain lucrative contracts.
Ferner’s lawyers claimed the alleged scam was facilitated by a civilian middleman who “claimed to be a high-ranking government official who had authority to bypass the bidding process, none of which was true.” Ferner himself “was alarmed that his military supervisors condoned and wanted to cover up the violation.”
And hey, small world: SAIC around the same time also paid the government $11.75 million to settle allegations it charged inflated prices for another, unrealted, contract.
EXCLUSIVE: Ferner Recounts His Whistleblowing
Ferner received a nice financial award under the False Claims Act, and left the U.S. for New Zealand. In an exclusive, he speaks out on his own experience as a whistleblower, with some hard words for America about how its government works:
Exactly one year after my whistle-blowing case became public, I’m looking back and wondering: “What the hell was I thinking?” Like many whistleblowers, my allegations were validated; I was vindicated but nobody was ever held accountable. So actually, what was accomplished?
My case pales in comparison to others working in the government who have come across really bad people doing horrendous things. All across America there are thousands of regular people, brave men and women who happen upon malfeasance. These people had the courage and conviction to do the right thing and report it. Why? Like myself, these people did the right thing because honor and integrity are the core essence of who they are. Unfortunately, honesty, integrity and dedication to professionalism are dying traits across America and individuals who demonstrate these qualities are punished, especially those who work within the government sector.
I’ve always felt that as a member of the United States military it was an honor and privilege to serve a great nation. And that, in addition to my legal obligations, I had a moral obligation to ensure that the monies the American people paid were spent in the most effective and efficient manner. I always treated government monies the same as my own personal money and spent it judiciously. Unfortunately, other military members and government employees don’t hold the same view. Consequently, millions and millions of taxpayers’ dollars are wasted needlessly. Like thousands of other whistle-blowers working for the government, I found out what happens when you have the audacity to call them out on fraud, waste and abuse and try and hold people accountable.
The terrorist attacks that occurred on 9/11 changed our country in many ways. People don’t recognize that it’s changed the way the government provides safety and security to the people. The government embraced contractors to provide security in keeping America safe. We seem to be safer but at what cost? This decision has transformed the governmental contracting process into something akin to a gigantic hog’s trough. The government pours an endless supply of money into the trough and the contractors continue to “belly up” and feed totally unchecked. The government provides little oversight over monies spent and a fearful public doesn’t care so long as they think they are safe.
Consequently, unscrupulous individuals continue to line their pockets at our expense. Even when they are caught, the government does nothing and seemingly doesn’t care. Contractors pay huge fines under the auspices of “avoiding the costs of protracted litigation” while the individuals involved plead to lesser charges in exchange for working with prosecutors. The fraud, waste and abuse is so prevalent that this ridiculous cycle is the only way to keep it in check. The “Justice System” is devoid of any justice or accountability; it’s solely a process designed to make it look like something is being done.
I uncovered in excess of $42 million in fraud. Despite this, nobody has been prosecuted or held accountable. Like so many other contractors, a multimillion dollar settlement was paid to the government to “costly, protracted litigation.” The individual operating as the “middleman” was ultimately found to be liable for $42 million. Despite this, he negotiated this down and paid a fine of $105,000 in exchange for providing assistance to the government in “ongoing investigations.” Amazingly, all these people still have security clearances and still work as a contractors for the government. What message does this send about the government’s commitment to honesty and integrity in the contracting community?
The Air Force officers responsible for overseeing the programs involved in the fraud all walked away with no repercussions to their careers. The taxpayers paid a lot of money to some very senior officers to not be held accountable. A sad commentary that in today’s Air Force, the moral fibre of the command environment is so fetid that it views fraud as a normal cost of doing business. Nice to know the senior leaders who are deciding the fate of your sons and daughters get that privilege given their lack of morality. How can we expect them to make an appropriate decision on the sanctity of life when they lack the morality to decide simple things like what’s right and wrong concerning contract fraud? Aren’t the military supposed to be above the pettiness of politics? Or has the military just become another breeding ground for the dysfunctional politicians that now stymie our political system? Given the fiscal state of the country people should be outraged!
Like so many other whistle-blowers; I know in my heart I did the right thing in reporting the fraud. And again, like so many other whistle-blowers I was the only one who paid a price throughout the ordeal. Ostracised, targeted and ultimately punished because I had the audacity to believe we the people deserve better. When are we going to start holding people accountable? Like other whistleblowers; I’ve done my part. Everybody needs to do their part. It’s hard for others to look at maleficence in government and report it when they see how whistleblowers are treated but more needs to be done.
I hope you never find yourself in the unenviable position of being a whistleblower; and I mean that. Yeah, I got a nice settlement for my troubles as a whistleblower but that’s not why I did it. I did it because it was the right thing to do. Knowing what I know now, I’m still looking back thinking; “What the hell was I thinking?”
Here’s a bit of history from another America: The Bill of Rights was designed to protect the people from their government. If the First Amendment’s right to speak out publicly was the people’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now, in Post-Constitutional America.
The Fourth Amendment
A response to British King George’s excessive invasions of privacy in colonial America, the Fourth Amendment pulls no punches:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: Our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as “unreasonable” in our old constitutional world, but no more.
Here, then, are four ways that, in the name of American “security” and according to our government, the Fourth Amendment no longer really applies to our lives.
The Constitutional Borderline
Begin at America’s borders. Most people believe they are “in” the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.
Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the “border search.” The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally “reasonable” simply by virtue of where they take place. It’s a concept with a long history, enumerated by the First Congress in 1789.
Here’s the twist in the present era: The definition of “border” has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.
Those modest exceptions were all part of constitutional America. Today, once reasonable searches at the border have morphed into a vast “Constitution-free zone.” The “border” is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the U.S. population. In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitras — whose work focuses on national security issues in general and Edward Snowden in the particular — knows firsthand. Since 2006, almost every time Poitras has returned to the U.S., her plane has been met by government agents and her laptop and phone examined.
There are multiple similar high-profile cases (including those of a Wikileaks researcher and a Chelsea Manning supporter), but ordinary citizens are hardly exempt. Despite standing in an American airport, a pane of glass away from loved ones, you are not in the U.S. and have no Fourth Amendment rights. How many such airport searches are conducted in the aggregate is unknown. The best information we have comes from a FOIA request by the ACLU. It revealed that, in the 18-month period beginning in October 2008, more than 6,600 people, about half of them U.S. citizens, were subjected to electronic device searches at the border.
Still, reminding us that it’s possible to have a sense of humor on the road to hell, the CBP offers this undoubtedly inadvertent pun at its website: “It is not the intent of CBP to subject travelers to unwarranted scrutiny.” (emphasis added)
Making It All Constitutional In-House
Here’s another example of how definitions have been readjusted to serve the national security state’s overriding needs: The Department of Justice (DOJ) created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants.
Some background: A warrant is court permission to search and seize something. As the Fourth Amendment makes clear, it must be specific: enter Thomas Anderson’s home and look for hacked software. Warrants can only be issued on “probable cause.” The Supreme Court defined probable cause as requiring a high standard of proof, or to quote its words, “a fair probability that contraband or evidence of a crime will be found in a particular place.”
A subpoena on the other hand is nothing more than a government order issued to a citizen or organization to do something, most typically to produce a document. Standards for issuing a subpoena are flexible, as most executive agencies can issue them on their own without interaction with a court. In such cases, there is no independent oversight.
The Department of Justice now claims that, under the Fourth Amendment, it can simply subpoena an Internet company like Facebook and demand that they look for and turn over all the records they have on our Mr. Anderson. Their explanation: The DOJ isn’t doing the searching, just demanding that another organization do it. As far as its lawyers are concerned, in such a situation, no warrant is needed. In addition, the Department of Justice believes it has the authority to subpoena multiple records, maybe even all the records Facebook has. Records on you? Some group of people including you? Everyone? We don’t know, as sources of data like Facebook and Google are prohibited from disclosing much about the information they hand over to the NSA or other government outfits about you.
It’s easy enough to miss the gravity of this in-house interpretation when it comes to the Fourth Amendment. If the FBI today came to your home and demanded access to your emails, it would require a warrant obtained from a court after a show of probable cause to get them. If, however, the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message you’ve ever sent without a warrant and it won’t constitute a “search.” The DOJ has continued this practice even though in 2010 a federal appeals court ruled that bulk warrantless access to email violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act similarly makes it clear that the Bureau’s agents don’t need warrants to access email in bulk when it’s pulled directly from Google, Yahoo, Microsoft, or other service providers.
How far can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the inspector general of the Department of Veterans Affairs (VA) issued a subpoena — no court involved — demanding that the Project On Government Oversight (POGO) turn over all information it has collected relating to abuses and mismanagement at VA medical facilities. POGO is a private, non-profit group, dedicated to assisting whistleblowers. The VA subpoena demands access to records sent via an encrypted website to POGO under a promise of anonymity, many from current or former VA employees.
Rather than seek to break the encryption surreptitiously and illegally to expose the whistleblowers, the government has taken a simpler, if unconstitutional route, by simply demanding the names and reports. POGO has refused to comply, setting up a legal confrontation. In the meantime, consider it just another sign of the direction the government is heading when it comes to the Fourth Amendment.
Technology and the Fourth Amendment
Some observers suggest that there is little new here. For example, the compiling of information on innocent Americans by J. Edgar Hoover’s low-tech FBI back in the 1960s has been well documented. Paper reports on activities, recordings of conversations, and photos of meetings and trysts, all secretly obtained, exposed the lives of civil rights leaders, popular musicians, and antiwar protesters. From 1956 to at least 1971, the government also wiretapped the calls and conversations of Americans under the Bureau’s counterintelligence program (COINTELPRO).
But those who look to such history of government illegality for a strange kind of nothing-new-under-the-sun reassurance have not grasped the impact of fast-developing technology. In scale, scope, and sheer efficiency, the systems now being employed inside the U.S. by the NSA and other intelligence agencies are something quite new and historically significant. Size matters.
To avoid such encroaching digitization would essentially mean withdrawing from society, not exactly an option for most Americans. More of life is now online — from banking to travel to social media. Where the NSA was once limited to traditional notions of communication — the written and spoken word — new possibilities for following you and intruding on your life in myriad ways are being created. The agency can, for instance, now collect images, photos, and video, and subject them to facial recognition technology that can increasingly put a name to a face. Such technology, employed today at casinos as well as in the secret world of the national security state, can pick out a face in a crowd and identify it, taking into account age, changes in facial hair, new glasses, hats, and the like.
An offshoot of facial recognition is the broader category of biometrics, the use of physical and biological traits unique to a person for identification. These can be anything from ordinary fingerprinting to cutting-edge DNA records and iris scans. (Biometrics is already big business and even has its own trade association in Washington.) One of the world’s largest known collections of biometric data is held by the Department of State. As of December 2009, its Consular Consolidated Database (CCD) contained more than 75 million photographs of Americans and foreigners and is growing at a rate of approximately 35,000 records per day. CCD also collects and stores indefinitely the fingerprints of all foreigners issued visas.
With ever more data available, the NSA and other agencies are creating ever more robust ways to store it. Such storage is cheap and bounteous, with few limits other than the availability of electricity and water to cool the electronics. Emerging tech will surely bypass many of the existing constraints to make holding more data longer even easier and cheaper. The old days of file cabinets, or later, clunky disk drives, are over in an era of mega-data storage warehouses.
The way data is aggregated is also changing fast. Where data was once kept in cabinets in separate offices, later in bureaucratically isolated, agency-by-agency digital islands, post-9/11 sharing mandates coupled with new technology have led to fusion databases. In these, information from such disparate sources as license plate readers, wiretaps, and records of library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can now be put into a single “file.”
Once you have the whole haystack, there’s still the problem of how to locate the needle. For this, emerging technologies grow ever more capable of analyzing Big Data. Some simple ones are even available to the public, like IBM’s Non-Obvious Relationship Awareness software (NORA). It can, for example, scan multiple databases, geolocation information, and social media friend lists and recognize relationships that may not be obvious at first glance. The software is fast and requires no human intervention. It runs 24/7/365/Forever.
Tools like NORA and its more sophisticated classified cousins are NSA’s solution to one of the last hurdles to knowing nearly everything: The need for human analysts to “connect the dots.” Skilled analysts take time to train, are prone to human error, and — given the quickly expanding supply of data — will always be in demand. Automated analysis also offers the NSA other advantages. Software doesn’t have a conscience and it can’t blow the whistle.
What does all this mean in terms of the Fourth Amendment? It’s simple: The technological and human factors that constrained the gathering and processing of data in the past are fast disappearing. Prior to these “advances,” even the most ill-intentioned government urges to intrude on and do away with the privacy of citizens were held in check by the possible. The techno-gloves are now off and the possible is increasingly whatever an official or bureaucrat wants to do. That means violations of the Fourth Amendment are held in check only by the goodwill of the government, which might have qualified as the ultimate nightmare of those who wrote the Constitution.
On this front, however, there are signs of hope that the Supreme Court may return to its check-and-balance role of the Constitutional era. One sign, directly addressing the Fourth Amendment, is this week’s unanimous decision that the police cannot search the contents of a cell phone without a warrant. (The court also recently issued a ruling determining that the procedures for challenging one’s inclusion on the government’s no-fly list are unconstitutional, another hopeful sign.)
Prior to the cell phone decision, law enforcement held that if someone was arrested for, say, a traffic violation, the police had the right to examine the full contents of his or her cell phone — call lists, photos, social media, contacts, whatever was on the device. Police traditionally have been able to search physical objects they find on an arrestee without a warrant on the grounds that such searches are for the protection of the officers.
In its new decision, however, the court acknowledged that cell phones represent far more than a “physical object.” The information they hold is a portrait of someone’s life like what’s in a closet at home or on a computer sitting on your desk. Searches of those locations almost always require a warrant.
Does this matter when talking about the NSA’s technological dragnet? Maybe. While the Supreme Court’s decision applies directly to street-level law enforcement, it does suggest an evolution within the court, a recognition of the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is now recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.
National Security Disclosures Under HIPPA
While the NSA’s electronic basket of violations of the Fourth Amendment were, pre-Snowden, meant to take place in utter secrecy, here’s a violation that sits in broad daylight: Since 2002, my doctor can disclose my medical records to the NSA without my permission or knowledge. So can yours.
Congress passed the Health Information Portability and Accountability Act (HIPPA) in 1996 “to assure that individuals’ health information is properly protected.” You likely signed a HIPPA agreement at your doctor’s office, granting access to your records. However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of those records for national security purposes. Specifically, the new version of this “privacy law” states: “We may also disclose your PHI [Personal Health Information] to authorized federal officials as necessary for national security and intelligence activities.” The text is embedded deep in your health care provider’s documentation. Look for it.
How does this work? We don’t know. Do the NSA or other agencies have ongoing access to the medical records of all Americans? Do they have to request specific ones? Do doctors have any choice in whose records to forward under what conditions? No one knows. My HMO, after much transferring of my calls, would ultimately only refer me back to the HIPPA text with a promise that they follow the law.
The Snowden revelations are often dismissed by people who wonder what they have to hide. (Who cares if the NSA sees my cute cat videos?) That’s why health care spying stands out. How much more invasive could it be than for your government to have unfettered access to such a potentially personal and private part of your life — something, by the way, that couldn’t have less to do with American “security” or combating terrorism.
Our health care providers, in direct confrontation with the Fourth Amendment, are now part of the metastasizing national security state. You’re right to be afraid, but for goodness sake, don’t discuss your fears with your doctor.
How the Unreasonable Becomes Reasonable
At this point, when it comes to national security matters, the Fourth Amendment has by any practical definition been done away with as a part of Post-Constitutional America. Whole books have been written just about Edward Snowden and more information about government spying regularly becomes available. We don’t lack for examples. Yet as the obviousness of what is being done becomes impossible to ignore and reassurances offered up by the president and others are shown to be lies, the government continues to spin the debate into false discussions about how to “balance” freedom versus security, to raise the specter of another 9/11 if spying is curtailed, and to fall back on that go-to “nothing to hide, nothing to fear” line.
In Post-Constitutional America, the old words that once defined our democracy are twisted in new ways, not discarded. Previously unreasonable searches become reasonable ones under new government interpretations of the Fourth Amendment. Traditional tools of law, like subpoenas and warrants, continue to exist even as they morph into monstrous new forms.
Americans are told (and often believe) that they retain rights they no longer have. Wait for the rhetoric that goes with the celebrations of our freedoms this July 4th. You won’t hear a lot about the NSA then, but you should. In pre-constitutional America the colonists knew that they were under the king’s thumb. In totalitarian states of the last century like the Soviet Union, people dealt with their lack of rights and privacy with grim humor and subtle protest. However, in America, ever exceptional, citizens passively watch their rights disappear in the service of dark ends, largely without protest and often while still celebrating a land that no longer exists.
America has entered its third great era: the post-constitutional one. In the first, in the colonial years, a unitary executive, the King of England, ruled without checks and balances, allowing no freedom of speech, due process, or privacy when it came to protecting his power.
In the second, the principles of the Enlightenment and an armed rebellion were used to push back the king’s abuses. The result was a new country and a new constitution with a Bill of Rights expressly meant to check the government’s power. Now, we are wading into the shallow waters of a third era, a time when that government is abandoning the basic ideas that saw our nation through centuries of challenges far more daunting than terrorism. Those ideas — enshrined in the Bill of Rights — are disarmingly concise. Think of them as the haiku of a genuine people’s government.
Deeper, darker waters lie ahead and we seem drawn down into them. For here there be monsters.
The Powers of a Police State Denied
America in its pre-constitutional days may seem eerily familiar even to casual readers of current events. We lived then under the control of a king. (Think now: the imperial presidency.) That king was a powerful, unitary executive who ruled at a distance. His goal was simple: to use his power over “his” American colonies to draw the maximum financial gain while suppressing any dissent that might endanger his control.
In those years, protest was dangerous. Speech could indeed make you the enemy of the government. Journalism could be a crime if you didn’t write in support of those in power. A citizen needed to watch what he said, for there were spies everywhere, including fellow colonists hoping for a few crumbs from the king’s table. Laws could be brutal and punishments swift as well as extra-judicial. In extreme cases, troops shot down those simply assembling to speak out.
Among the many offenses against liberty in pre-constitutional America, one pivotal event, the Stamp Act of 1765, stands out. To enforce the taxes imposed by the Act, the king’s men used “writs of assistance” that allowed them to burst into any home or business, with or without suspicion of wrongdoing. American privacy was violated and property ransacked, often simply as a warning of the king’s power. Some colonist was then undoubtedly the first American to mutter, “But if I have nothing to hide, why should I be afraid?” He soon learned that when a population is categorically treated as a potential enemy, everyone has something to hide if the government claims they do.
The Stamp Act and the flood of kingly offenses that followed created in those who founded the United States a profound suspicion of what an unchecked government could do, and a sense that power and freedom are not likely to coexist comfortably in a democracy. A balancing mechanism was required. In addition to the body of the Constitution outlining what the new nation’s government could do, needed was an accounting of what it could not do. The answer was the Bill of Rights.
The Bill’s preamble explained the matter this way: “…in order to prevent misconstruction or abuse of [the government's] powers, that further declaratory and restrictive clauses should be added.” Thomas Jefferson commented separately, “[A] bill of rights is what the people are entitled to against every government on earth.”
In other words, the Bill of Rights was written to make sure that the new government would not replicate the abuses of power of the old one. Each amendment spoke directly to a specific offense committed by the king. Their purpose collectively was to lay out what the government could never take away. Knowing first-hand the dangers of a police state and unchecked power, those who wrote the Constitution wanted to be clear: never again.
It needs to be said that those imperfect men were very much of their era. They were right about much, but desperately wrong about other things. They addressed “humanity,” but ignored the rights of women and Native Americans. Above all, they did not abolish the institution of slavery, our nation’s Original Sin. It would take many years, and much blood, to begin to rectify those mistakes.
Still, for more than two centuries, the meaning of the Bill of Rights was generally expanded, though — especially in wartime — it sometimes temporarily contracted. Yet the basic principles that guided America were sustained despite civil war, world wars, depressions, and endless challenges. Then, one September morning, our Post-Constitutional era began amid falling towers and empty skies. What have we lost since? More than we imagine. A look at the Bill of Rights, amendment by amendment, tells the tale.
The First Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The First Amendment was meant to make one thing indisputably clear: free speech was the basis for a government of the people. Without a free press, as well as the ability to openly gather, debate, protest, and criticize, how would the people be able to judge their government’s adherence to the other rights? How could people vote knowledgeably if they didn’t know what was being done in their name by their government? An informed citizenry, Thomas Jefferson stated, was “a vital requisite for our survival as a free people.”
That was how it was seen long ago. In Post-Constitutional America, however, the government strives to “control the message,” to actively thwart efforts to maintain a citizenry informed about what’s done in its name, a concept that these days seems as quaint as Jefferson’s powdered wig. There are far too many examples of the post-9/11 erosion of the First Amendment to list here. Let’s just look at a few important ones that tell the tale of what we have lost since 9/11.
(Lack of) Freedom of Information
In 1966, an idea for keeping Americans better informed on the workings of their government was hatched: the Freedom of Information Act (FOIA). Strengthened in 1974, it began with the premise that, except for some obvious categories (like serious national security matters and personal information), the position of the government should be: everything it does is available to the public. Like the Bill of Rights, which made specific the limits of government, FOIA began with a presumption that it was the government’s duty to make information available — and quickly — to the people, unless a convincing case could be made otherwise. The default position of the FOIA switch was set to ON.
Three decades later, the FOIA system works far differently. Agencies are generally loath to release documents of any sort and instead put their efforts into creating roadblocks to legitimate requests. Some still require signatures on paper. (The State Department notes, “Requests for personal information cannot be submitted electronically and should be submitted by mail.”) Others demand hyper-detailed information like the precise dates and titles of documents whose dates and titles may be classified and unavailable. The NSA simply denies almost all FOIA requests out of hand, absent a court order.
Most federal agencies now regard the deadline mandated for a response as the time period to send out a “request received” note. They tend to assign only a few staff members to processing requests, leading to near-endless delays. At the State Department, most FOIA work is done on a part-time basis by retirees. The CIA won’t directly release electronic versions of documents. Even when a request is fulfilled, “free” copying is often denied and reproduction costs exaggerated.
In some cases, the requested records have a way of disappearing or are simply removed. The ACLU’s experience when it filed an FOIA-style request with the Sarasota police department on its use of the cell phone surveillance tool Stingray could be considered typical. The morning the ACLU was to review the files, Federal Marshals arrived and physically took possession of them, claiming they had deputized the local cops and made the files federal property. An ACLU spokesperson noted that, in other cases, federal authorities have invoked the Homeland Security Act to prevent the release of records.
John Young, who runs the web site Cryptome and is a steadfast FOIA requester, stated, “Stonewalling, delay, brush-off, lying are normal. It is a delusion for ordinary requesters and a bitch of a challenge for professionals. Churning has become a way of life for FOIA, costly as hell for little results.”
Sealed Lips and the Whistleblower
All government agencies have regulations requiring employees to obtain permission before speaking to the representatives of the people — that is, journalists. The U.S. Intelligence Community has among the most restrictive of these policies, banning employees and contractors completely from talking with the media without prior authorization. Even speaking about unclassified information is a no-no that may cost you your job. A government ever more in lockdown mode has created what one journalist calls a “culture where censorship is the norm.”
So who does speak to Americans about their government? Growing hordes of spokespeople, communications staff, trained PR crews, and those anonymous “senior officials” who pop up so regularly in news articles in major papers.
With the government obsessively seeking to hide or spin what it does, in-the-sunlight contact barred, and those inside locked behind an iron curtain of secrecy, the whistleblower has become the paradigmatic figure of the era. Not surprisingly, anyone who blows a whistle has, in these years, come under fierce attack.
Pick a case: Tom Drake exposing early NSA efforts to turn its spy tools on Americans, Edward Snowden proving that the government has us under constant surveillance, Chelsea Manning documenting war crimes in Iraq and sleazy diplomacy everywhere, John Kiriakou acknowledging torture by his former employer the CIA, or Robert MacLean revealing Transportation Safety Administration malfeasance. In each instance, the threat of jail was quick to surface. The nuclear option against such truthtellers is the Espionage Act, a law that offended the Constitution when implemented in the midst of World War I. It has been resurrected by the Obama administration as a blunt “wartime” tool for silencing and punishing whistleblowers.
The Obama administration has already charged six people under that act for allegedly mishandling classified information. Even Richard Nixon only invoked it once, in a failed prosecution against Pentagon Papers whistleblower Daniel Ellsberg.
Indeed, the very word “espionage” couldn’t be stranger in the context of these cases. None of those charged spied. None sought to aid an enemy or make money selling secrets. No matter. In Post-Constitutional America, the powers-that-be stand ready to twist language in whatever Orwellian direction is necessary to bridge the gap between reality and the king’s needs. In the Espionage Act case of State Department contractor Stephen Kim, a judge departed from previous precedent, ruling that the prosecution need not even show that the information leaked to a Fox news reporter from a CIA report on North Korea could damage U.S. national security or benefit a foreign power. It could still be a part of an “espionage” charge.
A final question might be: How could a law designed almost 100 years ago to stop German spies in wartime have become a tool to silence the few Americans willing to risk everything to exercise their First Amendment rights? When did free speech become a crime?
Self-Censorship and the Press
Each person charged under the Espionage Act in these years was primarily a source for a journalist. The writers of the Bill of Rights chose to include the term “press” in the First Amendment, specifically carving out a special place for journalists in our democracy. The press was necessary to question government officials directly, comment on their actions, and inform the citizenry about what its government was doing. Sadly, as the Obama administration is moving ever more fiercely against those who might reveal its acts or documents, the bulk of the media have acquiesced. Glenn Greenwald said it plainly: too many journalists have gone into a self-censoring mode, practicing “obsequious journalism.”
For example, a survey of reporters showed “the percentage of U.S. journalists endorsing the occasional use of ‘confidential business or government documents without authorization,’ dropped significantly from 81.8% in 1992 to 57.7% in 2013.” About 40% of American journalists would not have published documents like those Edward Snowden revealed.
And the same has been true of the management of newspapers. In mid-2004, James Risen and Eric Lichtblau uncovered George W. Bush’s illegal warrantless eavesdropping program, but the New York Times held the story for 15 months, until after Bush’s reelection. Executives at the Times were told by administration officials that if they ran the story, they’d be helping terrorists. They accepted that. In 2006, the Los Angeles Times similarly gave in to the NSA and suppressed a story on government wiretaps of Americans.
Government Efforts to Stop Journalists
Reporters need sources. Increasingly, the government is classifying just about any document it produces — 92 million documents in 2011 alone. Its intelligence agencies have even classified reports about the over-classification of documents. As a result, journalistic sources are often pressed into discussing, at great personal risk, classified information. Forcing a reporter to reveal such sources discourages future whistleblowing.
In one of the first of a series of attempts to make journalists reveal their sources, former Fox News reporter Mike Levine stated that the Justice Department persuaded a federal grand jury to subpoena him in January 2011. The demand was that he reveal his sources for a 2009 story about Somali-Americans who were secretly indicted in Minneapolis for joining an al-Qaeda-linked group in Somalia. Levine fought the order and the Department of Justice finally dropped it without comment in April 2012. Call it a failed test case.
According to Washington lawyer Abbe Lowell, who defended Stephen Kim, significant amounts of time have been spent by the Department of Justice in the search for a legal rationale for indicting journalists for their participation in exposing classified documents. A crucial test case is James Risen’s 2006 book, State of War, which had an anonymously sourced chapter on a failed CIA operation to disrupt Iran’s nuclear program. When Risen, citing the First Amendment, refused to identify his source or testify in the trial of the former CIA officer accused of being that source, the government sought to imprison him. He responded that the “Obama administration… wants to use this case and others like it to intimidate reporters and whistleblowers. But I am appealing to the Supreme Court because it is too dangerous to allow the government to conduct national security policy completely in the dark.”
In June 2014, the Supreme Court refused to take Risen’s case on appeal, essentially ratifying a U.S. Court of Appeals decision that the First Amendment didn’t protect a reporter from being forced to testify about “criminal conduct that the reporter personally witnessed or participated in.” That decision makes clear that a reporter receiving classified information from a source is part of the crime of “leaking.”
Risen has said he will go to prison rather than testify. It is possible that, having secured the precedent-setting right to send Risen to jail, the government will bring the suspected leaker to trial without calling on him. Attorney General Eric Holder recently hinted that his Justice Department might take that path — a break for Risen himself, but not for reporters more generally who now know that they can be jailed for refusing to divulge a source without hope of recourse to the Supreme Court.
The Descent Into Post-Constitutionalism
As with the King of England once upon a time, many of the things the government now does have been approved in secret, sometimes in secret courts according to a secret body of law. Sometimes, they were even approved openly by Congress. In constitutional America, the actions of the executive and the laws passed by Congress were only legal when they did not conflict with the underlying constitutional principles of our democracy. Not any more. “Law” made in secret, including pretzeled legal interpretations by the Justice Department for the White House, opened the way, for instance, to the use of torture on prisoners and in the Obama years to the drone assassination of Americans. Because such “legalities” remain officially classified, they are, of course, doubly difficult to challenge.
But can’t we count on the usual pendulum swings in American life to change this? There were indeed notable moments in American history when parts of the Constitution were put aside, but none are truly comparable to our current situation. The Civil War lasted five years, with Lincoln’s suspension of habeas corpus limited in geography and robustly contested. The World War II Japanese internment camps closed after three years and the persecuted were a sub-set of Japanese-Americans from the West Coast. Senator McCarthy’s notorious career as a communist-hunter lasted four years and ended in shame.
Almost 13 years after the 9/11 attacks, it remains “wartime.” For the war on terror, the driver, excuse, and raison d’être for the tattering of the Bill of Rights, there is no end in sight. Recently retired NSA head Keith Alexander is typical of key figures in the national security state when he claims that despite, well, everything, the country is at greater risk today than ever before. These days, wartime is forever, which means that a government working ever more in secret has ever more latitude to decide which rights in which form applied in what manner are still inalienable.
The usual critical history of our descent into a post-constitutional state goes something like this: in the panic after the 9/11 attacks, under the leadership of Vice President Dick Cheney with the support of President George W. Bush, a cabal of top government officials pushed through legal-lite measures to (as they liked to say) “take the gloves off” and allow kidnapping, torture, illegal surveillance, and offshore imprisonment along with indefinite detention without charges or trial.
Barack Obama, elected on a series of (false) promises to roll back the worst of the Bush-era crimes, while rejecting torture and closing America’s overseas “black sites,” still pushed the process forward in his own way. He expanded executive power, emphasized drone assassinations (including against American citizens), gave amnesty to torturers, increased government secrecy, targeted whistleblowers, and heightened surveillance. In other words, two successive administrations lied, performed legal acrobatics, and bullied their way toward a kind of absolute power that hasn’t been seen since the days of King George. That’s the common narrative and, while not wrong, it is incomplete.
Missing Are the People
One key factor remains missing in such a version of post-9/11 events in America: the people. Even today, 45% of Americans, when polled on the subject, agree that torture is “sometimes necessary and acceptable to gain information that may protect the public.” Americans as a group seem unsure about whether the NSA’s global and domestic surveillance is justified, and many remain convinced that Edward Snowden and the journalists who published his material are criminals. The most common meme related to whistleblowers is still “patriot or traitor?” and toward the war on terror, “security or freedom?”
It’s not that Americans are incorrect to be fearful and feel in need of protection. The main thing we need to protect ourselves against, however, is not the modest domestic threat from terrorists, but a new king, a unitary executive that has taken the law for its own, aided and abetted by the courts, supported by a powerful national security state, and unopposed by a riven and weakened Congress. Without a strong Bill of Rights to protect us — indeed, secure us — from the dangers of our own government, we will have gone full-circle to a Post-Constitutional America that shares much in common with the pre-constitutional British colonies.
Yet there is no widespread, mainstream movement of opposition to what the government has been doing. It seems, in fact, that many Americans are willing to accept, perhaps even welcome out of fear, the death of the Bill of Rights, one amendment at a time.
We are the first to see, in however shadowy form, the outlines of what a Post-Constitutional America might look like. We could be the last who might be able to stop it.
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