• With Whistleblowers Jesselyn Radack and Tom Drake

    April 16, 2016 // 8 Comments

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    Posted in: Democracy, NSA, Post-Constitution America

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    I am very proud to call these two people friends:


    Jesselyn Radack, who blew the whistle on Department of Justice malfeasance in the handling of the “American Taliban” John Walker Lindh. Jess went on to become a key part of Edward Snowden’s defense team (full disclosure: Jess was also one of my lawyers in my own whistleblower struggle with the State Department.)


    Tom Drake, who blew the whistle on NSA domestic spying in the years right after 9/11, and who is cited by Edward Snowden as an important example as he decided whether or not to further expose the unconstitutional acts of the National Security Agency. In return for his truth telling, Tom was rewarded by being prosecuted under the Espionage Act, a tactic the Obama administration has now used seven times against intelligence whistleblowers, more than all previous administrations combined.

    We had a terrific lunch, and if only the walls could talk…




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  • Radack, Drake Win Hugh Hefner First Amendment Award

    June 5, 2012 // 2 Comments

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    Posted in: Democracy

    I am very pleased and proud that my attorney, Jesslyn Radack of the Government Accountability Project, and my friend and colleague Tom Drake, NSA Whistleblower, are the winners of this year’s Hugh M. Hefner Foundation First Amendment Awards. Radack and Drake are being acknowledged for their critical work exposing national security hypocrisy and abuses.

    The Hefner Foundation has given out the First Amendment Awards since 1980, honoring those who have made contributions to the protections afforded under the First Amendment. Radack and Drake join an impressive rank of winners, including the likes of Walter Karp, Studs Terkel, Cecile Richards, Michael Moore, John Seigenthaler, Bill Maher, and Molly Ivins.

    Tom Drake blew the whistle on fraud, waste and abuse within the NSA and was rewarded by being prosecuted under the Espionage Act, a tactic the Obama administration has now used six times against intelligence whistleblowers, more than all previous administrations combined. Radack, herself a Department of Justice whistleblower, represented Drake and played a vital role in winning his case in the court of public opinion.

    My congratulations to Jesslyn and Tom on the award, and here’s hoping that Jess soon adds a victory for free speech over the State Department in my own case to her impressive resume.



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  • The War on the First Amendment Didn’t Start Last Week

    May 11, 2017 // 49 Comments

    Tags: ,
    Posted in: Democracy, Post-Constitution America

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    For those who woke a week ago to discover the First Amendment is under attack, I lost my job at the Obama/Clinton State Department in 2012 for writing We Meant Well, a book the government did not like, and needed the help of lawyer Jesselyn Radack and the ACLU to push back the threat of jail.


    My book was critical of actions in Iraq under both the Obama and Bush administrations. One helped protect the other.

    Braver people than me, like Thomas Drake, Morris Davis, and Robert MacLean, risked imprisonment and lost their government jobs for talking to the press about government crimes and malfeasance. John Kiriakou, Chelsea Manning, and Jeff Sterling went to jail for speaking to/informing the press. The Obama administration tried to prosecute reporters from Fox and the New York Times for stories on government wrongdoing.

    Ray Maxwell at the State Department went public with information about Clinton’s email malfeasance before you had even heard of her private server. The media called him a liar, an opportunist, and a political hack and he was pressed into retirement.


    Indeed, Obama prosecuted more federal whistleblowers under the Espionage Act than all previous United States presidents combined, including Richard Nixon, Ronald Reagan and George W. Bush.

    The Obama administration also set a record (77%) for redacting government files or denying access to them in fiscal year 2014 under the Freedom of Information Act.

    More than any previous administration, Obama took longer to turn over files, said more often it could not locate documents, and refused a record number of times to turn over time-sensitive files quickly, requiring years-long legal actions to be brought to force the government’s hand. In the case of Hillary Clinton, files considered “unclassified” in one context were redacted in whole in another.

    Though the backlog of unanswered requests grew by 55%, the administration cut the number of full-time Freedom of Information Act employees by 7.5%. Despite the critical nature of the documents to the election, the State Department was allowed to do its Freedom of Information Act screening of the Clinton emails largely with an ad hoc crew of retirees. The impact on journalists, and the right of the people to know, was immeasurable.


    So spare me. The war on our freedoms was well under way before last week. Where the hell were you and your safety pins then?




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  • Help Me Choose a Nominee for the Hugh Hefner First Amendment Award

    September 24, 2016 // 16 Comments

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    Posted in: Democracy

    HMH_programcover_v1.indd


    The Hugh M. Hefner First Amendment Awards were established in 1979 to honor individuals who have made significant contributions to protect the First Amendment rights of Americans. They are looking for nominees for this year’s awards, and I’d like to send them a name.

    Who should it be?

    Nominees traditionally come from the fields of journalism, arts and entertainment, education, publishing, and law and government. They are honored at a reception at the Playboy Mansion, and receive $5,000 to continue their work. Readers here know some of the past awardees: Whistleblowers Thomas Drake, Morris Davis, Norman Lear, Michael Moore, Bill Maher — the whole list back to 1980 is here.

    I suspect Edward Snowden and those connected to him as journalists and lawyers will already have a long line of people ready to nominate them. Any would be people who deserve the honor. But let’s put our heads together and see if we can come up with someone not so much in the public eye, someone working for our rights who could really use the attention that even being nominated will bring.

    Ideas? Put them in the comments. If the person is not well-known, a link would be helpful.




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  • Arrrgh! I Speak With the Pirate Party of Iceland

    August 19, 2016 // 5 Comments

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    Posted in: Democracy

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    My thanks to the wonderful people at Iceland’s Pirate Party for allowing me to speak to a group of their supporters in Iceland last week.

    Special thanks to Member of Parliament Birgitta Jonsdottir (above), Sunna Ævarsdóttir, Sara Oskarsson, and to Icelandic state television Ruv for the interview (below).

    The audience was remarkably well-informed on whistleblower issues, with questions not only about high-profile folks like Ed Snowden and Chelsea Manning, but also important whistleblowers like Tom Drake, Bill Binney, John Kiriakou, and Jeff Sterling, who may not be as well known to many Americans.

    There was also among the people present an overt fear of the direction the United States continues to head, beyond the symptoms of Hillary and Trump. The endless wars of the Middle East progulated and/or encouraged and supported by the U.S., the global pestilence of the NSA, and the lashing out of America against Muslims and human rights were all of deep concern.


    As for Iceland’s Pirate Party itself, it is poised to gain control of the government this October. Recent polls suggest the Pirates lead with about 30 percent of the votes.

    Some attribute this success to Icelanders’ growing dissatisfaction with the political establishment, exacerbated when former Prime Minister Sigmunður Gunnlaugsson was forced to resign over the Panama Papers-money laundering scandal earlier this year. Among the Pirate Party’s platform are plans for greater use of direct democracy and Icelandic citizenship/asylum for Snowden.

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  • Memo to the President Regarding the Hillary Clinton Email Server

    May 29, 2016 // 19 Comments

    Tags: , , ,
    Posted in: Post-Constitution America

    obama and clinton


    The following memo was written by a group of U.S. intelligence, diplomatic, and military veterans, calling on President Obama to expedite the FBI review of former Secretary of State Clinton’s alleged email security violations so the public can assess this issue in a timely fashion.

    Clinton’s judgement — never mind the significant question of legality — is an important criterion which Americans must consider in choosing their next president.

    Yeah, it is long, but sometimes important things are complex, and need to be explained clearly. That is especially true in the case of the Clinton Emails, where the media has failed in its job of explaining how classification works, and the significance of exposing classified material.

    I am a member of the group that drafted this memo, and proudly signed it before it was sent to the White House.

    MEMORANDUM FOR: The President

    FROM: Veteran Intelligence Professionals for Sanity

    SUBJECT: Those “Damn Emails” – “Really a Concern”


    Introduction

    Last Wednesday Robert Gates, CIA Director under President Bush-41 and Defense Secretary under President Bush-43, publicly commented that Secretary Hillary Clinton’s “whole email thing … is really a concern in terms of her judgment,” adding, “I don’t know what originally prompted her to think that was a good idea.”

    What originally prompted her does not matter. As your Secretary of State and your subordinate, she willfully violated laws designed to protect classified information from unauthorized disclosure. It may be somewhat difficult for those not as immersed in national security matters as we have been to appreciate the seriousness of the offense, including the harm done in compromising some of the most sensitive U.S. programs and activities. This is why we write.

    Pundits and others are playing down the harm. A charitable interpretation is that they have no way to gauge what it means to expose so much to so many. We do know, and our overriding concern is to protect the national security of our country from further harm. It would be a huge help toward this end, if you would order Attorney General Loretta Lynch to instruct the FBI to stop slow-walking the email investigation and release its findings promptly.

    If you choose, instead, to give precedence to politics over national security, the American people will be deprived of timely appreciation of the gravity of the harm done; national security officials who do follow the rules will be scandalized; FBI investigators will conclude that that their job is more political than professional; and the noxious impression will grow that powerful people cannot be held accountable when they break the law. Worse: if the results of the FBI investigation remain under lock and key, dangerous pressures are likely to be exerted on the most senior U.S. officials by those who have the key – as we explain below.

    We the undersigned Veteran Intelligence Professionals for Sanity (VIPS) have spent 400 years working with classified information – up to and including TOP SECRET, Codeword, and Special Access Programs (SAP). Given that experience, we believe that much of the commentary on the former Secretary of State Hillary Clinton email controversy has been misplaced, focusing on extraneous issues having little or nothing to do with the overriding imperative to protect classified information.

    As intelligence, military, and foreign service professionals, we are highly aware not only of that compelling need, but also of the accompanying necessity to hold accountable those whose actions compromise – whether for reasons of convenience or espionage – sensitive operations, programs and persons. In addition, we know that successful mutual cooperation with foreign intelligence services depends largely on what they see as our ability to keep secrets secret.

    Background

    Last August, Secretary Clinton handed over her private email server to the FBI, five months after she acknowledged she had used it for work-related emails as Secretary of State. She admitted to having deleted about 31,000 emails she described as personal. Media reports last fall, however, indicated that the FBI was able to recover the personal emails, and was reviewing them, as well as the 30,000 others she had described as work-related.

    In January, the Department of State announced that, of the 30,000 work-related emails, at least 1,340 contained classified material. The Department retroactively classified 22 of those TOP SECRET and prevented their release. Among the 22 were some that, according to media reports, included information on highly sensitive Special Access Programs (SAP).

    The White House has said it will do nothing to impede the FBI investigation and possible filing of charges against Clinton, if the facts should warrant that kind of action. Inasmuch as the outcome of the investigation is bound to have major political consequences, such White House assurances stretch credulity.

    By all indications, the FBI is slow-walking the investigation and mainstream media are soft-pedaling the issue. As things now stand, most Americans remain unaware of the import of this industrial-scale compromise of very sensitive national security information in Secretary Clinton’s emails.

    Our concern mounted in January when the Inspector General of the intelligence community wrote to the chairs of the congressional intelligence committees that he had received from one of the intelligence agencies two “sworn declarations” asserting that Secretary Clinton’s emails contained not only CONFIDENTIAL and SECRET information, but also information at the TOP SECRET/SAP level.

    In 2009, you signed an Executive Order regarding SAP (Special Access Programs), so we assume you were briefed on their extremely high sensitivity and the consequent need to sharply limit the number of people allowed to be “read-in” on them. The mishandling of SAP information can neutralize intelligence programs costing billions of dollars, wreck liaison relationships assiduously cultivated for decades, and get a lot of people killed.

    ‘It Wasn’t That Bad’

    All those directly or peripherally involved in the investigation of the Clinton email issue know very well that it could have a direct impact on who is likely to become the next President of the United States, and they will be making decisions with that reality in mind. They know that it is with you that “the buck stops,” and they are sensitive to signs of your preferences. Those were not difficult to discern in your commencement address at Howard University on May 7, in which you strongly advocated the same basic policy approaches as those espoused by one Democratic presidential candidate – Hillary Clinton.

    Your White House has also made excuses for deliberate security violations by Secretary Clinton that would have gotten senior officials like us fired and probably indicted. We look with suspicion at what we see as contrasting and totally inappropriate attempts by the administration and media to play down the importance of Secretary Clinton’s deliberate disregard of basic security instructions and procedures.

    It appears that the option chosen by the White House is using the declared need for “thoroughness” to soft-pedal and delay completion of the investigation for several more months, while the corporate media sleeps on. Four months have already gone by since the smoking-gun-type revelations in the intelligence community Inspector General’s letter to Congress, and it has been well over a year since Secretary Clinton first acknowledged using an insecure email server for official business.

    Another claim emanating from your White House is that Clinton was careless in managing her emails and has admitted as much, but that she has not damaged American national security. She has called it a “mistake,” but security officials of the National Security Agency explicitly forewarned her against violating basic laws and regulations designed to prevent the compromise of classified information.

    NSA, FBI Have Enough Evidence

    Surely, enough time has passed, and enough material has been reviewed, to permit a preliminary damage assessment. The NSA has the necessary information and should, by now, have shared that information with the FBI. Secretary Clinton’s server in her house in Chappaqua, New York, was not a secured device. Her email address incorporated her initials, “hdr” (apparently for her maiden name, Hillary Diane Rodham). It also included the “clinton” server identity, so it was easy for a hacker to spot.

    Anyone with the proper equipment, knowledge and motivation might have been able to obtain access. That is what hackers are able to do, with considerable success, against government servers that are far better protected than the private email server located in her New York State home.

    In fact, there have been reports that Secretary Clinton’s emails were, indeed, hacked successfully by foreigners. The Romanian hacker who goes by the name Guccifer claimed earlier this month that he had repeatedly hacked her email server. He described the server as “like an open orchid on the Internet” and that “it was easy … easy for me, for everybody.” Guccifer has been extradited from Romania and is now in jail in Alexandria, Virginia, where the FBI is said to be questioning him on the emails. There have also been credible claims that Russian intelligence and other foreign services were able to hack the Secretary’s server.

    Another argument being surfaced, in a transparent attempt to defend Secretary Clinton, has to do with intent. It is said that she did not intend to have classified information on her computer in New York and had no intention of handling secret material in a way that would be accessible to foreign intelligence or others lacking the proper security clearances and the need-to-know.

    But while intent might be relevant in terms of punishment, it does not change the fact that as a member of the Senate Armed Services Committee, then Senator Clinton had clearances for classified information for years before becoming Secretary of State. She knew the rules and yet as Secretary she handled classified information carelessly after a deliberate decision to circumvent normal procedures for its safeguarding, thus making it vulnerable to foreign intelligence, as well as to criminal hackers.

    Anyone who has ever handled classified material knows that there are a number of things that you do not do. You do not take it home with you, you do not copy it and share it with anyone who does not have a clearance and a need-to-know, you do not strip off the classification marks and treat it as unclassified, and you do not transfer it to another email account that is not protected by a government server.

    If you have a secured government computer operating off of a secure server that means that what is on the computer stays on the computer. This is not a matter of debate or subject to interpretation. It is how one safeguards classified information, even if one believes that the material should not be classified, which is another argument that has been made in Clinton’s defense. Whether or not the classification is unnecessary is not your decision to make.

    Apart from the guidelines for proper handling of classified information, outlined in Executive Order 13526 and 18 U.S.C Sec. 793(f) of the federal code, there is some evidence of a cover-up regarding what was compromised. This itself would be a violation of the 2009 Federal Records Act and the Freedom of Information Act.

    Numerous messages both in New York and in Washington have reportedly been erased or simply cannot be found. In addition, the law cited above explicitly makes it a felony to cut and paste classified information removing its classification designation. Retaining such information on a private email system is also a felony. In one of Secretary Clinton’s emails, she instructed her staff simply to remove a classification and send the information to her on her server.

    So the question is not whether Secretary Clinton broke the law. She did. If the laws are to be equally applied, she should face the same kind of consequences as others who have been found, often on the basis of much less convincing evidence, guilty of similar behavior.


    Some More Equal Than Others

    Secretary Clinton’ case invites comparison with what happened to former CIA case officer Jeffrey Sterling, now serving a three-and-a-half-year prison term for allegedly leaking information to New York Times journalist James Risen. Sterling first came to the media’s attention when in 2003 he blew the whistle on a botched CIA operation called Operation Merlin, telling the Senate Intelligence Committee staff that the operation had ended up revealing nuclear secrets to Iran. When in 2006 James Risen published a book that discussed, inter alia, this amateurish cowboy operation, the Department of Justice focused on Sterling as the suspected source.

    In court, the federal prosecutors relied almost entirely on Risen’s phone and email logs, which reportedly demonstrated that the two men had been in contact up until 2005. But the prosecutors did not provide the content of those communications even though the FBI was listening in on some of them. Risen has claimed that he had multiple sources on Operation Merlin, and Sterling has always denied being involved.

    Jeffrey Sterling was not permitted to testify in the trial on his own behalf because he would have had to discuss Operation Merlin, which was and is still classified. He could not mention any details about it even if they were already publicly known through the Risen book. No evidence was ever produced in court demonstrating that any classified information ever passed between the two men, but Sterling, an African American, was nevertheless convicted by an all-white jury in Virginia based on “suspicion” and the presumption that “it had to be him.”

    The contrast between the copious evidence – some of it self-admitted – of Secretary Clinton’s demonstrable infractions, on the one hand, and the very sketchy, circumstantial evidence used to convict and imprison Jeffrey Sterling, on the other, lend weight to the suspicion that there is one law for the rich and powerful in the United States and another for the rest of us.

    Failing to take steps against a politically powerful presidential candidate and letting her off unscathed for crimes of her own making, while an institutionally unprotected Jeffrey Sterling sits in prison would be a travesty of justice not dissimilar to the gentle wrist-slap given Gen. David Petraeus for giving his mistress extremely sensitive information and then lying to the FBI about it.

    Your order to then-Attorney General Eric Holder to let Gen. David Petraeus off easy created a noxious – and demoralizing – precedent in the national security community indicating that, whatever the pains taken at lower levels to prevent compromise of duly classified information, top officials are almost never held accountable for disregarding well-established rules. These are some of the reasons we are so concerned that this is precisely the direction in which you seem to be leaning on the Clinton email issue.

    In our view, the sole legitimate reason for disclosing classified information springs from the only “oath” we all took – “to support and defend the Constitution of the United States against all enemies foreign and domestic.” When, for example, Edward Snowden saw the U.S. government grossly violating our Fourth Amendment right to be “secure” against warrantless “searches and seizures,” he gave more weight to that oath (ethicists call it a supervening value) than to the promise he had made not to disclose information that could harm U.S. national security.


    Possibly Still Worse Ahead

    You might give some thought, Mr. President, to a potentially messy side of this. What is already known about NSA’s collect-it-all electronic practices over the past several years strongly suggests that NSA, and perhaps the FBI, already know chapter and verse. It is virtually certain they know what was in Secretary Clinton’s emails – including the ones she thought she had deleted. It is likely that they have also been able to determine which foreign intelligence agencies and other hackers were able to access the emails.

    One ignores this at one’s peril. Secretary Clinton’s security violations can have impact not only on whether she becomes your successor, but also on whether she would, in that case, be beholden to those who know what lies hidden from the rest of us – perhaps even from you.

    Intelligence professionals (in contrast to the occasional political functionary) take the compromise of classified information with utmost seriousness. More important: this is for us a quintessentially nonpartisan issue. It has to do, first and foremost, with the national security of the United States.

    We are all too familiar with what harm can come from blithe disregard of basic procedures designed to protect sensitive intelligence and other national security information. Yes, the lamentable unevenness in how such infractions are handled is also an important issue – but that is not our main focus in the present context.


    The Truth Will Out

    Not all workers at the NSA or the FBI are likely to keep their heads in the sand, as they watch very senior officials and politicians with their own agendas disregard laws to safeguard the nation’s security. We know what it is like to do the difficult, disciplined work of protecting information from being compromised by strictly abiding by what often seem to be cumbersome rules and regulations. We’ve been there; done that.

    If you encourage the Department of Justice and the FBI to continue slow-walking the investigation, there is a good chance the truth will come out anyway. As you are aware, the Justice Department, the FBI, and NSA have all yielded recent patriots who, in such circumstances, decided that whistleblowing – rather than silence – was the only way to honor the oath we all swore – to support and defend the Constitution.

    To sum up our concern regarding how all this plays out, if you order the Justice Department and FBI to pursue the investigation with “all deliberate speed,” so to speak, and Secretary Clinton becomes president, the juicy email secrets in the hidden hands of the NSA and FBI are likely to give those already powerful institutions a capacity for blackmail that would make J. Edgar Hoover’s mouth water. In addition, information hacked by foreign intelligence services or Guccifer-like hackers can also provide useful grist for leverage or blackmail.


    Taking Care the Laws Are Faithfully Executed

    We strongly urge you to order Attorney General Loretta Lynch to instruct FBI Director James Comey to wind up a preliminary investigation and tell the country now what they have learned. By now they – and U.S. intelligence agencies – have had enough time to do an early assessment of what classified data, programs and people have been compromised. Realistically speaking, a lengthier, comprehensive post-mortem-type evaluation – however interesting it might be, might never see the light of day under a new president.

    We believe the American people are entitled to prompt and full disclosure, and respectfully suggest that you ensure that enforcement of laws protecting our national security does not play stepchild to political considerations on this key issue.

    On April 10, you assured Chris Wallace, “I guarantee that there is no political influence in any investigation conducted by the Justice Department, or the FBI – not just in this [Clinton email] case, but in any case. Full stop. Period.”

    We urge you to abide by that promise, and let the chips fall where they may. Full stop. Period.


    For the Steering Group, Veteran Intelligence Professionals for Sanity (VIPS)

    William Binney, Technical Director, NSA; co-founder, SIGINT Automation Research Center (ret.)

    Thomas Drake, Senior Executive, NSA (former)

    Philip Giraldi, CIA, Operations Officer (ret.)

    Sen. Mike Gravel, Adjutant, top secret control officer, Communications Intelligence Service, special agent the Counter Intelligence Corps and United States Senator

    Matthew Hoh, former Capt., USMC, Iraq & Foreign Service Officer, Afghanistan (associate VIPS)

    Larry C. Johnson, CIA & State Department (ret.)

    Michael S. Kearns, Captain, USAF Intelligence Agency (ret.), ex-Master SERE Instructor

    John Kiriakou, Former CIA Counterterrorism Officer

    Ray McGovern, former US Army infantry/intelligence officer & CIA analyst (ret.)

    Elizabeth Murray, Deputy National Intelligence Officer for Middle East, CIA (ret.)

    Todd Pierce, MAJ, US Army Judge Advocate (ret.)

    Scott Ritter, former MAJ, USMC, former UN Weapon Inspector, Iraq

    Diane Roark, DOE, DOD, NSC, & professional staff, House Intelligence Committee (ret.)

    Robert David Steele, former CIA Operations Officer

    Peter Van Buren, U.S. Department of State, Foreign Service Officer (ret.) (associate VIPS)

    Kirk Wiebe, former Senior Analyst, SIGINT Automation Research Center, NSA, (ret.)

    Ann Wright, U.S. Army Reserve Colonel (ret) and former U.S. Diplomat




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  • ‘The Boys Who Said No!’: New Documentary About War Resisters

    April 4, 2016 // 8 Comments

    Tags: , , , ,
    Posted in: Democracy, Military, Post-Constitution America

    VIDEOPOSTER

    Evil is participatory, says interviewee David Harris at the beginning of a documentary in progress about Vietnam-era draft resisters, The Boys Who Said No!

    Evil continuing depends on people joining in, and the first step to stopping it, he continues, is withdrawing your own participation. So Harris said no to the Vietnam-era draft, and went to jail for it.

    The Boys Who Said No!

    The Boys Who Said No! is set during the late 1960s and early 70s, when thousands resisted conscription at the risk of federal prison. Unlike those who evaded the draft by fleeing to Canada, getting various deferments, or resorting to violent protest, the subjects of this film chose civil disobedience.

    It was a costly decision.

    An estimated 500,000 young men evaded or refused to cooperate with the draft, and 3,250 went to prison for their beliefs, the largest mass incarceration of war resisters in U.S. history. The film tackles this broad narrative mostly through the story of David Harris (who spent three years in Federal prison for refusing to be drafted, and for encouraging others to do the same) and his wife, folksinger Joan Baez. Interviews with many other draft resisters round out the narrative.

    As part of understanding the Vietnam era, the film also reviews the history of the draft, and opposition to previous drafts, and the Vietnam war. Resistance to the war is tied into the larger civil rights movement, two sides of the same coin in opposing unjust actions by the government, with the inclusion of the Reverend Martin Luther King, Jr. visiting Joan Baez and those jailed for blocking the Oakland Draft Board in 1967.

    How Do You Say “Vietnam” in Arabic? Iraq

    To a younger audience, the film is perhaps a bit funny, guys with weird hair and unhip clothing burning whatever draft cards were. For a cynical generation, it is as easy to dismiss the value of individual action as it is wrong to do so. Indeed, the actions of one person alone can amount to little. But as an interviewee says, you never know who’s watching. The Boys Who Said No! illustrates how one can become two, two can become ten, and over time they together remind you all that sand on the beach was once a rock.

    The Boys Who Said No! thus resonates strongly today.

    It offers an answer to the question of what courage is in a modern world: not only choosing the harder right over the easier wrong, but being willing to pay the price for acting on conscience, for a good bigger than oneself. And in that definition, the actions of men like David Harris and the thousands who joined him in refusing the draft, become clearer. The path they put themselves on leads in a straight line through whistleblowers Ellsberg (Pentagon Papers), Drake and Binney (NSA), Manning and Assange (Iraq War), Kiriakou and Sterling (CIA) and Snowden.

    Acts of conscience never go out of fashion, and a country never has enough examples. That’s what makes a film like The Boys Who Said No! more than historical document.

    To many today the war in Vietnam seems as old as the battles at Gettysburg and Antietam. But think about this: Vietnam was a war started on false pretenses (U.S. ships attacked in Gulf of Tonkin, Weapons of Mass Destruction in Iraq), built on deeply flawed fear (Communism will overtake Southeast Asia, a caliphate will engulf the Middle East), a faux-threat to the United States/Homeland (Communists on the beaches of California, Islamic terrorists in your town) and the strategy of extraordinary means spent for limited ends. Very, very similar comparisons apply to America’s war in Central America during the 1980s.

    And before you dismiss that by saying the struggle against Islamic terror is “different,” remember this: history shows those who resisted the war in Vietnam, and that in Central America, turned out to be right.

    The Boys Who Said No! is currently in production, but in need of additional funding for completion. Take a look at a 17 minute excerpt, and visit the project’s website, Facebook, or Indiegogo page if you wish to contribute.

    A Bit More

    The Boys Who Said No! was directed is Judith Ehrlich, who won an Academy Award nomination for The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers. The producer is Christopher C. Jones, who at age 17 refused to register for the draft, was arrested and served nine months in federal prison. As the documentary is not complete, my comments above are based on previews and clips I have seen.

    The film takes its title from a 1960s poster showing Joan Baez’ sisters sitting on a couch with the caption “Girls say yes to boys who say no.”




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  • Back to the Future: The Unanswered Questions from the Debates

    March 26, 2016 // 10 Comments

    Tags: , ,
    Posted in: Afghanistan, Iraq, Libya, Military, Post-Constitution America

    Barack Obama, Mitt Romney

    The nuances of foreign policy do not feature heavily in the ongoing presidential campaign. Every candidate intends to “destroy” the Islamic State; each has concerns about Russian President Vladimir Putin, North Korea, and China; every one of them will defend Israel; and no one wants to talk much about anything else — except, in the case of the Republicans, who rattle their sabers against Iran.

    In that light, here’s a little trip down memory lane: in October 2012, I considered five critical foreign policy questions — they form the section headings below — that were not being discussed by then-candidates Mitt Romney and Barack Obama. Romney today is a sideshow act for the current Republican circus, and Obama has started packing up his tent at the White House and producing his own foreign policy obituary.

    And sadly, those five questions of 2012 remain as pertinent and unraised today as they were four years ago. Unlike then, however, answers may be at hand, and believe me, that’s not good news.  Now, let’s consider them four years later, one by one. 

    Is there an endgame for the global war on terror?

    That was the first question I asked back in 2012. In the ensuing years, no such endgame has either been proposed or found, and these days no one’s even talking about looking for one. Instead, a state of perpetual conflict in the Greater Middle East and Africa has become so much the norm that most of us don’t even notice.

    In 2012, I wrote, “The current president, elected on the promise of change, altered very little when it came to George W. Bush’s Global War on Terror (other than dropping the name). That jewel-in-the-crown of Bush-era offshore imprisonment, Guantanamo, still houses over 160 prisoners held without trial. While the U.S. pulled its troops out of Iraq… the war in Afghanistan stumbles on. Drone strikes and other forms of conflict continue in the same places Bush tormented: Yemen, Somalia, and Pakistan (and it’s clear that northern Mali is heading our way).”

    Well, candidates of 2016? Guantanamo remains open for business, with 91 men still left. Five others were expeditiously traded away by executive decision to retrieve runaway American soldier Bowe Bergdahl in Afghanistan, but somehow President Obama feels he can’t release most of the others without lots of approvals by… well, someone. The Republicans running for president are howling to expand Gitmo, and the two Democratic candidates are in favor of whatever sort of not-a-plan plan Obama has been pushing around his plate for eight years.

    Iraq took a bad bounce when the same president who withdrew U.S. troops in 2011 let loose the planes and drones and started putting those boots back on that same old ground in 2014. It didn’t take long for the U.S. to morph that conflict from a rescue mission to a training mission to bombing to Special Operations forces in ongoing contact with the enemy, and not just in Iraq, but Syria, too. No candidate has said that s/he will pull out.

    As for the war in Afghanistan, it now features an indefinite, “generational” American troop commitment. Think of that country as the third rail of campaign 2016 — no candidate dares touch it for fear of instant electrocution, though (since the American public seems to have forgotten the place) by whom exactly is unclear. There’s still plenty of fighting going on in Yemen — albeit now mostly via America’s well-armed proxies the Saudis — and Africa is more militarized than ever.

    As for the most common “American” someone in what used to be called the third world is likely to encounter, it’s no longer a diplomat, a missionary, a tourist, or even a soldier — it’s a drone. The United States claims the right to fly into any nation’s airspace and kill anyone it wishes. Add it all together and when it comes to that war on terror across significant parts of the globe, the once-reluctant heir to the Bush legacy leaves behind a twenty-first century mechanism for perpetual war and eternal assassination missions. And no candidate in either party is willing to even suggest that such a situation needs to end.

    In 2012, I also wrote, “Washington seems able to come up with nothing more than a whack-a-mole strategy for ridding itself of the scourge of terror, an endless succession of killings of ‘al-Qaeda Number 3’ guys. Counterterrorism tsar John Brennan, Obama’s drone-meister, has put it this way: ‘We’re not going to rest until al-Qaeda the organization is destroyed and is eliminated from areas in Afghanistan, Pakistan, Yemen, Africa, and other areas.’”

    Four years later, whack-a-mole seems to still be as polite a way as possible of categorizing America’s strategy. In 2013, the top whacker John Brennan got an upgrade to director of the CIA, but strangely — despite so many drones sent off, Special Operations teams sent in, and bombers let loose — the moles keep burrowing and he’s gotten none of the rest he was seeking in 2012. Al-Qaeda is still around, but more significantly, the Islamic State (IS) has replaced that outfit as the signature terrorist organization for the 2016 election.

    And speaking of IS, the 2011 war in Libya, midwifed by Secretary of State Hillary Clinton, led to the elimination of autocrat Muammar Qaddafi, which in turn led to chaos, which in turn led to the spread of IS there big time, which appears on its way to leading to a new American war in Libya seeking the kind of stability that, for all his terrors, Qaddafi had indeed brought to that country during his 34 years in power and the U.S. military will never find.

    So an end to the Global War on Terror? Nope.

    Do today’s foreign policy challenges mean that it’s time to retire the Constitution?

    In 2012 I wrote, “Starting on September 12, 2001, challenges, threats, and risks abroad have been used to justify abandoning core beliefs enshrined in the Bill of Rights. That bill, we are told, can’t accommodate terror threats to the Homeland.”

    At the time, however, our concerns about unconstitutionality were mostly based on limited information from early whistleblowers like Tom Drake and Bill Binney, and what some then called conspiracy theories. That was before National Security Agency contractor Edward Snowden confirmed our worst nightmares in June 2013 by leaking a trove of NSA documents about the overwhelming American surveillance state. Snowden summed it up this way: “You see programs and policies that were publicly justified on the basis of preventing terrorism — which we all want — in fact being used for very different purposes.”

    Now, here’s the strange thing: since Rand Paul dropped out of the 2016 presidential race, no candidate seems to find it worth his or her while to discuss protecting the Bill of Rights or the Constitution from the national security state. (Only the Second Amendment, it turns out, is still sacred.) And speaking of rights, things had already grown so extreme by 2013 that Attorney General Eric Holder felt forced to publicly insist that the government did not plan to torture or kill Edward Snowden, should he end up in its hands. Given the tone of this election, someone may want to update that promise.

    In 2012, of course, the Obama administration had only managed to put two whistleblowers in jail for violating the Espionage Act. Since then, such prosecutions have grown almost commonplace, with five more convictions (including that of Chelsea Manning) and with whatever penalties short of torture and murder are planned for Edward Snowden still pending. No one then mentioned the use of the draconian World War I-era Espionage Act, but that wasn’t surprising. Its moment was still coming.

    Four years later, still not a peep out of any candidate about the uses of that act, once aimed at spying for foreign powers in wartime, or a serious discussion of government surveillance and the loss of privacy in American life. (And we just learned that the Pentagon’s spy drones have been released over “the homeland,” too, but don’t expect to hear anything about that or its implications either.) Of course, Snowden has come up in the debates of both parties. He has been labeled a traitor as part of the blood sport that the Republican debates have devolved into, and denounced as a thief by Hillary Clinton, while Bernie Sanders gave him credit for “educating the American people” but still thought he deserved prison time.

    If the question in 2012 was: “Candidates, have we walked away from the Constitution? If so, shouldn’t we publish some sort of notice or bulletin?” In 2016, the answer seems to be: “Yes, we’ve walked away, and accept that or else… you traitor!”

    What do we want from the Middle East?

    In 2012, considering the wreckage of the post-9/11 policies of two administrations in the Middle East, I wondered what the goal of America’s presence there could possibly be. Washington had just ended its war in Iraq, walked away from the chaos in Libya, and yet continued to launch a seemingly never-ending series of drone strikes in the region. “Is it all about oil?” I asked. “Israel? Old-fashioned hegemony and containment? History suggests that we should make up our mind on what America’s goals in the Middle East might actually be. No cheating now — having no policy is a policy of its own.”

    Four years later, Washington is desperately trying to destroy an Islamic State “caliphate” that wasn’t even on its radar in 2012. Of course, that brings up the question of whether IS can be militarily destroyed at all, as we watch its spread to places as far-flung as Afghanistan, Yemen, and Libya. And then there’s the question no one would have thought to ask back then: If we destroy that movement in Iraq and Syria, will another even more brutish group simply take its place, as the Islamic State did with al-Qaeda in Iraq? No candidate this time around even seems to grasp that these groups aren’t just problems in themselves, but symptoms of a broader Sunni-Shi’ite problem.

    In the meantime, the one broad policy consensus to emerge is that we shouldn’t hesitate to unleash our air power and Special Operations forces and, with the help of local proxies, wreck as much stuff as possible. America has welcomed all comers to take their best shots in Syria and Iraq in the name of fighting the Islamic State. The ongoing effort to bomb it away has resulted in the destruction of cities that were still in decent shape in 2012, like Ramadi, Kobane, Homs, and evidently at some future moment Iraq’s second largest city, Mosul, “in order to save” them. Four American presidents have made war in the region without success, and whoever follows Obama into the Oval Office will be number five. No questions asked.

    What is your plan to right-size our military and what about downsizing the global mission?

    Plan? Right-size? Here’s the reality four years after I asked that question: Absolutely no candidate, including the most progressive one, is talking about cutting or in any way seriously curtailing the U.S. military.

    Not surprisingly, in response to the ongoing question of the year, “So how will you pay for that?” (in other words, any project being discussed from massive border security and mass deportations to free public college tuition), no candidate has said: “Let’s spend less than 54% of our discretionary budget on defense.”

    Call me sentimental, but as I wrote in 2012, I’d still like to know from the candidates, “What will you do to right-size the military and downsize its global mission? Secondly, did this country’s founders really intend for the president to have unchecked personal war-making powers?”

    Such questions would at least provide a little comic relief, as all the candidates except Bernie Sanders lock horns to see who will be the one to increase the defense budget the most.

    Since no one outside our borders buys American exceptionalism anymore, what’s next? What is America’s point these days?

    In 2012, I laid out the reality of twenty-first-century America this way: “We keep the old myth alive that America is a special, good place, the most ‘exceptional’ of places in fact, but in our foreign policy we’re more like some mean old man, reduced to feeling good about himself by yelling at the kids to get off the lawn (or simply taking potshots at them). Now, who we are and what we are abroad seems so much grimmer… America the Exceptional, has, it seems, run its course. Saber rattling… feels angry, unproductive, and without any doubt unbelievably expensive.”

    Yet in 2016 most of the candidates are still barking about America the Exceptional despite another four years of rust on the chrome. Donald Trump may be the exceptional exception in that he appears to think America’s exceptional greatness is still to come, though quite soon under his guidance.

    The question for the candidates in 2012 was and in 2016 remains “Who exactly are we in the world and who do you want us to be? Are you ready to promote a policy of fighting to be planetary top dog — and we all know where that leads — or can we find a place in the global community? Without resorting to the usual ‘shining city on a hill’ metaphors, can you tell us your vision for America in the world?”

    The answer is a resounding no.

    See You Again in 2020

    The candidates have made it clear that the struggle against terror is a forever war, the U.S. military can never be big enough, bombing and missiling the Greater Middle East is now the American Way of Life, and the Constitution is indeed a pain and should get the hell out of the way.

    Above all, no politician dares or cares to tell us anything but what they think we want to hear: America is exceptional, military power can solve problems, the U.S. military isn’t big enough, and it is necessary to give up our freedoms to protect our freedoms. Are we, in the perhaps slightly exaggerated words of one foreign commentator, now just a “nation of idiots, incapable of doing anything except conducting military operations against primitive countries”?

    Bookmark this page. I’ll be back before the 2020 elections to see how we’re doing.




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  • FBI and Access to NSA Data on Americans

    March 10, 2016 // 11 Comments

    Tags: ,
    Posted in: NSA, Post-Constitution America

    firstamendment_0



    Hear that hissing sound? That is the last gasps for air from the Bill of Rights. The Bill is one breath away from hell.


    The FBI has quietly revised its rules for searching data involving Americans’ communications collected by the National Security Agency.

    The classified revisions were accepted by the secret U.S. FISA court that governs surveillance, under a set of powers colloquially known as Section 702. That is the portion of law that authorizes the NSA’s sweeping PRISM program, among other atrocities.

    PRISM, and other surveillance programs, first came to mainstream public attention with the information leaked by NSA whistleblower Edward Snowden, preceeded by other NSA whistleblowers such as Thomas Drake and Bill Binney.

    Since at least 2014 the FBI has been allowed direct access to the NSA’s massive collections of international emails, texts and phone calls – which often include Americans on one end of the conversation, and often “inadvertently” sweep up Americans’ domestic communications as well. FBI officials can search through the NSA data, using Americans’ identifying information, for “routine” queries unrelated to national security.

    As of 2014, the FBI has not been required to make note of when it searched NSA-gathered metadata, which includes the “to” or “from” lines of an email. Nor does it record how many of its data searches involve Americans’ identifying details.


    So, quick summary: secret surveillance programs enacted in secret ostensibly to protect America from terrorism threats are now turning over data on American citizens to the FBI, fully unrelated to issues of national security. The rules governing all this are secret, decided by a secret court.

    If that does not add up to a chilling definition of a police state that would give an old Stasi thug a hard-on, than I don’t know what is.



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  • Classified at State: Double-Standards, or No Standards at All?

    August 13, 2015 // 25 Comments

    Tags: , ,
    Posted in: Democracy, Embassy/State, Post-Constitution America

    Manning at State Department


    My thanks to The Examiner, OPSEC Team, The Hill and Daily Kos for their articles noting the discrepancy between how the State Department treated my non-disclosure of classified materials on an unclassified system, and Hillary Clinton’s actual disclosure of classified materials on an unclassified system. There seem to be double-standards being applied.



    Wait, what?

    My first book, We Meant Well embarrassed the State Department by pointing out the failure of State’s efforts in Iraq. In retaliation for this, the State Department used its security bureaucracy infrastructure to push me into retirement after they failed to prosecute me, and then failed to fire me.



    Here’s what they did

    In October 2011 I wrote this blog post, which linked to an alleged State Department confidential cable on the Wikileaks site. The document in question was and still is online for all the world to see. State has never acknowledged publicly its authenticity or its classification.

    I merely linked to it.

    Based on that link, the State Department’s Bureau of Diplomatic Security conducted a full investigation into my ability to continue to hold the Top Secret security clearance I had held without incident for 23 years. They concluded I was no longer to be trusted.



    In fact, they said:



    sabatoge

    The SUBJECT is me. SBU stands for Sensitive But Unclassified, a made-up level of classification the State Department routinely assigns to all of its unclassified information to allow it to withhold documents from journalists and others as required. DS/ICI/PR is the State Department Office of Diplomatic Security, Professional Responsibility Division.

    The investigation into my supposed misdeeds around classified materials included Diplomatic Security running the “hacker” program WGET against this blog, and amassing “Screen shots collected by the DS Computer Threat Analysis Division (DS/CTAD) from the article ‘Let’s Watch Qaddafi Get Beaten and (Maybe) Sodomized’ published on WeMeantWell.com on 10/26/2011.” Agents also printed out nearly my entire blog to preserve a paper copy, apparently in case I deleted the files from my server. Hmm.

    I was interviewed three times in depth by a team of security agents, who characterized my linking as “transferring [classified] information from Wikileaks.org” to my own, unclassified, blog. I learned later that Diplomatic Security had been monitoring my State Department computer to ensure I did not misuse it. Security also searched my official email back several years and interviewed my neighbors looking for, well, something to use against me.

    It was a lot of effort by a busy organization over what, even if it had been as they portrayed it, a pretty minor matter.


    Clinton v. Manning: Protecting Classified Information

    And of course during the Bradley/Chelsea Manning trial, itself concerning State’s Secret level cables, Hillary Clinton was clear on her position: “I think that in an age where so much information is flying through cyberspace, we all have to be aware of the fact that some information which is sensitive, which does affect the security of individuals and relationships, deserves to be protected and we will continue to take necessary steps to do so.”


    Others

    I’ve focused here on my own situation not because it was important nationally, or out of bitterness (OK, maybe a little, I’m human) but primarily because it is the example I know most about.

    But there are others.

    The Intercept points out NSA whistleblower Tom Drake, for instance, faced years in prison, and ultimately had his career destroyed, based on the Obama DOJ’s claims that he “mishandled” classified information (it included information that was not formally classified at the time but was retroactively decreed to be such). Less than two weeks ago, “a Naval reservist was convicted and sentenced for mishandling classified military materials” despite no “evidence he intended to distribute them.” Last year, a Naval officer was convicted of mishandling classified information also in the absence of any intent to distribute it.

    John Kiriakou was sent to prison in part for his alleged mishandling of a business card, unmarked as to classification, that the CIA claimed was sensitive. Robert Maclean, at TSA, lost his job because he revealed unclassified information that was later retroactively classified.

    There are many examples.



    What it means…

    You are welcome to say what you wish about the merits or lack thereof of how I was treated by the State Department when the issue was handling of classified information. This article is not to open an old can of worms. I retired from my 24 years at the State Department and that’s that as far as that’s concerned.

    The point here instead is that State appears to have a sliding scale of how it sees possible security violations by its employees — Hillary Clinton and me, in this instance. Because while all this was happening with me in 2011, Clinton was running her own email system, unclassified in name but with classified materials in fact.

    And when you have double standards, as everyone knows, you really have no standards at all.

    BONUS: That photo’s of me, on my last day of work at State, wearing my ‘Free Bradley Manning’ T-shirt on campus. Manning, of course, is in jail for disclosing Secret-level information. I lost my job over purported confidential information. Hillary’s server contained above Top Secret information, the same level of information Edward Snowden is accused of disseminating.




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  • Understanding Why the Clinton Emails Matters

    August 11, 2015 // 29 Comments

    Tags: , ,
    Posted in: Embassy/State

    Hillary-Clinton

    In the world of handling America’s secrets, words – classified, secure, retroactive – have special meanings. I held a Top Secret clearance at the State Department for 24 years and was regularly trained in protecting information as part of that privilege. Here is what some of those words mean in the context of former Secretary of State Hillary Clinton’s emails.

    The Inspectors General for the State Department and the intelligence community issued a statement saying Clinton’s personal email system contained classified information. This information, they said, “should never have been transmitted via an unclassified personal system.” The same statement voiced concern that a thumb drive held by Clinton’s lawyer also contains this same secret data. Another report claims the U.S. intelligence community is bracing for the possibility that Clinton’s private email account contains multiple instances of classified information, with some data originating at the CIA and NSA.

    A Clinton spokesperson responded that “Any released emails deemed classified by the administration have been done so after the fact, and not at the time they were transmitted.” Clinton claims unequivocally her email contained no classified information, and that no message carried any security marking, such as Confidential or Top Secret.

    The key issue in play with Clinton is that it is a violation of national security to maintain classified information on an unclassified system.

    Classified, secure, computer systems use a variety of electronic (often generically called TEMPESTed) measures coupled with physical security (special locks, shielded conduits for cabling, armed guards) that differentiate them from an unclassified system. Some of the protections are themselves classified, and unavailable in the private sector. Such standards of protection are highly unlikely to be fulfilled outside a specially designed government facility.

    Yet even if retroactive classification was applied only after Clinton hit “send” (and State’s own Inspector General says it wasn’t), she is not off the hook.

    What matters in the world of secrets is the information itself, which may or may not be marked “classified.” Employees at the highest levels of access are expected to apply the highest levels of judgment, based on the standards in Executive Order 13526. The government’s basic nondisclosure agreement makes clear the rule is “marked or unmarked classified information.”

    In addition, the use of retroactive classification has been tested and approved by the courts, and employees are regularly held accountable for releasing information that was unclassified when they released it, but classified retroactively.

    It is a way of doing business inside the government that may at first seem nonsensical, but in practice is essential for keeping secrets.

    For example, if an employee were to be handed information sourced from an NSA intercept of a foreign government leader, somehow not marked as classified, she would be expected to recognize the sensitivity of the material itself and treat it as classified. In other cases, an employee might hear something sensitive and be expected to treat the information as classified. The emphasis throughout the classification system is not on strict legalities and coded markings, but on judgment. In essence, employees are required to know right from wrong. It is a duty, however subjective in appearance, one takes on in return for a security clearance.

    “Not knowing” would be an unexpected defense from a person with years of government experience.

    In addition to information sourced from intelligence, Clinton’s email may contain some back-and-forth discussions among trusted advisors. Such emails are among the most sensitive information inside State, and are otherwise always considered highly classified. Adversaries would very much like to know America’s bargaining strategy. The value of such information is why, for example, the NSA electronically monitored heads of state in Japan and Germany. The Freedom of Information Act recognizes the sensitivity of internal deliberation, and includes a specific exemption for such messages, blocking their release, even years after a decision occurred. If emails discussing policy or decisions were traded on an open network, that would be a serious concern.

    The problem for Clinton may be particularly damaging. Every email sent within the State Department’s own systems contains a classification; an employee technically cannot hit “send” without one being applied. Just because Clinton chose to use her own hardware does not relieve her or her staff of this requirement.

    Some may say even if Clinton committed security violations, there is no evidence the material got into the wrong hands – no blood, no foul. Legally that is irrelevant. Failing to safeguard information is the issue. It is not necessary to prove the information reached an adversary, or that an adversary did anything harmful with the information for a crime to have occurred. See the cases of Chelsea Manning, Edward Snowden, Jeff Sterling, Thomas Drake, John Kiriakou or even David Petraeus. The standard is “failure to protect” by itself.

    None of these laws, rules, regulations or standards fall under the rubric of obscure legalities; they are drilled into persons holding a security clearance via formal training (mandatory yearly for State Department employees), and are common knowledge for the men and women who handle America’s most sensitive information. For those who use government computer systems, electronic tools enforce compliance and security personnel are quick to zero in on violations.

    A mantra inside government is that protecting America’s secrets is everyone’s job. That was the standard against which I was measured throughout my career and the standard that should apply to everyone entrusted with classified information.




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  • Hillary Clinton Emails Said to Contain Classified Data

    July 27, 2015 // 12 Comments

    Tags: ,
    Posted in: Embassy/State

    hillary clinton

    Here’s the story behind the drive by the Inspector General of the State Department and the Intelligence Community Inspector General for the Justice Department open a full investigation into Hillary Clinton’s use of a private email account while she held the position of secretary of state.


    Government investigators discovered classified information on the private email account that Hillary used while secretary of state, stating “unequivocally” that those secrets never should have been stored outside of secure systems.

    The inspectors general of the State Department and the nation’s intelligence agencies said the information they found was classified when it was sent and remains so now. Information is considered classified if its disclosure would likely harm national security, and such information can be sent or stored only on computer networks with special safeguards. The inspectors have not revealed which of Clinton’s emails contained classified data, though the State Department has redacted portions of email it has released, and the FBI demanded data in some emails pertaining to the security situation in Libya be withheld.

    Clinton has said for months that she kept no classified information on the private server that she set up. Her campaign said Friday that any government secrets found on the server had been classified after the fact.


    There are multiple holes in Clinton’s latest set of excuses.


    To begin, she has stated there was nothing classified on her server. It appears now there was. The source is not a partisan attack dog, but the State Department’s own inspector general and the intelligence community. She violated national security, which require cleared individuals, such as Hillary, to protect sensitive information. Exposing classified data is a crime; that is what Chelsea Manning and Edward Snowden are accused of doing. It does not matter if the info can be proven to have reached the media or an adversary, the crime is the exposure itself, not the results.

    A person in Hillary’s position, and certainly with her claimed experience in government, should know what is and is not classified, sensitive or otherwise needs to be protected. In my own 24 years with the State Department, I saw that almost everything that reached the secretary’s office needed to be classified, either because of the contents itself, or because it was part of the tiny fraction of information that bubbled up that high. Of all the issues in the world, an adversary knowing what the secretary was personally focused on, or how the data was being presented to her, was valuable in its own right.

    Some/much of the information Hillary was dealing with originated within her inner circle, particularly email sent between her and her closest advisors that helped shape her decisions. It is the originating person that is charged inside State with assigning a classification. If Hillary’s staff did not assign a classification, well, then one was not technically included with the data. But that’s a fudge; it is the data itself that matters, with or without a label, and as part of the responsibility for holding a clearance a person is expected to make judgements to protect information. Hillary knew how sensitive the information was at times. It is a veneer of deniability.

    There have also been multiple public cases where the government has taken action against individuals because they “should have known unclassified” data “should have been classified” and thus protected. Google up those of TSA’s Robert MacLean, NSA’s Thomas Drake and, sadly, my own. All of us were punished, fired or threatened with jail over the alleged release of unclassified data that the government deemed ex post facto should have been considered classified. This is not speculation, it is precedent.

    Criminal? Maybe. Irresponsible? Likely. Not very presidential? Certainly.



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  • You Wanna Help Ed Snowden? Here’s How…

    June 3, 2015 // 4 Comments

    Tags: ,
    Posted in: Democracy

    snowden hopex


    One of the reasons Ed Snowden is not in prison is because he has great lawyers who have been willing to work pro bono on his behalf.

    I’m no Ed Snowden, but one of the reasons I am able to write this blog is because I had great lawyers in my fight against the State Department who were willing to work pro bono on my behalf.

    The one thing Snowden and I do really have in common is that we are represented by the same group of lawyers, the men and women at the Government Accountability Project (GAP) and the American Civil Liberties Union (ACLU). The ACLU can always use a financial hand, but today’s request for help is aimed specifically at the Government Accountability Project.

    The Government Accountability Project’s office which works specifically on national security whistleblower cases and represents clients who cannot afford legal fees for free, is facing a funding crisis. You can imagine the legal efforts that have been necessary to help Snowden, Tom Drake, John Kiriakou, Bill Binney (and me) through sometimes years of government efforts to silence them.

    The government has lots of money and resources; whistleblowers have only the Government Accountability Project.

    So here it is: please go to the Government Accountability Project GoFundMe page and give something.

    They have a group lined up to offer matching donations, so even a small contribution doubles itself automatically. Your donation is tax-deductible in the U.S. You can donate anonymously.

    The next whistleblower who will change history is out there, sitting in some government office, wondering if s/he will be alone when it is time to act on conscience and tell you the kind of things only someone inside the system can know. If you read this blog, I know you want to help him or her. Now, there is a way.


    FYI: I receive no money from any of this. My only association with the Government Accountability Project is as their legal client. They saved me and I’d kneel on broken glass if I thought that would help them continue their work.



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  • Senator Mark Udall: Disclose the Full Torture Report

    December 29, 2014 // 6 Comments

    Tags: ,
    Posted in: Democracy, Post-Constitution America

    mark-udall1-291x300As a member of Veteran Intelligence Professionals for Sanity, I am proud to post this appeal from our group for Senator Mark Udall to release the full text of the Senate Torture Report.

    Senator Mark Udall has called for the full release of the Senate Intelligence Committee’s report on torture. However, as a still-sitting member of Congress, he has a constitutional protection to read most of the still-secret report on the Senate floor — and a group of intelligence veterans urges him to do just that.

    We, the undersigned are veteran intelligence officers with a combined total of over 300 years of experience in intelligence work. We send you this open letter at what seems to be the last minute simply because we had been hoping we would not have to.

    You seem on the verge of leaving the Senate without letting your fellow Americans know all they need to know about CIA torture. In the eight weeks since you lost your Senate seat you gave off signs that, during your last days in office, you would provide us with a fuller account of this sordid chapter in our country’s history, exercising your right to immunity under the “Speech or Debate” clause in Article 1 of the Constitution.

    Your rhetoric against torture and in defense of the Constitution has been strong, but we now sense a white flag beneath it. We fear you intend to silently steal away, and thus deny the American people their last best chance to learn what they need to know about the record of CIA torture.

    We had been encouraged by your December 10 speech on the Senate floor, in which you referred to the release of the Executive Summary of the Senate Intelligence Committee’s Study on CIA torture the previous day and said: “My goal is to ensure the full truth comes out about this grim time in the history of the CIA and our nation, so that neither the CIA nor any future administration repeats the grievous mistake this important oversight work reveals.” (our emphasis)

    Very quickly, though, your goal became fuzzier. When Scott Raab of Esquire Magazine asked you right after your speech, “Do you think the remaining 6,000 or so pages will become public?” You answered: “I do. It’s my fervent hope that they will be declassified. I will continue to call for the entire report to be declassified. The details are important … the entire report ought to be released.”

    With all due respect, Senator, exactly who do you think is going to do that, if not you? Was your “goal to ensure the full truth comes out” more rhetoric than reality? We are extremely disappointed at your apparent readiness to throw in the towel.

    You had told Raab on November 21, “What happened [the torture, lying, and cover-up] broke faith with the Constitution,” adding, “There are some that would like this report [the Senate Intelligence Committee Study] never to see the light of day. There are some that are running out the clock.” Clearly, you are on to their game. Are you going to let the clock run out, when what we actually need is a full-court press?


    A Fine Floor Speech

    You called, again, for CIA Director John Brennan to resign, while at the same time noting that President Obama has expressed full confidence in him and has “demonstrated that trust by making no effort at all to rein him in.” In your words, the CIA keeps “posing impediments or obstacles” to full disclosure of its “barbaric program” of torture. And you made light of Obama’s merely stating, “Hopefully, we don’t do it again in the future.”

    “That’s not good enough,” you added, and of course you are right. Finally, you complain: “If there’s no real leadership from the White House helping the public understand that the CIA’s torture program wasn’t necessary and didn’t save lives or disrupt terrorist plots, then what’s to stop the next White House and CIA director from supporting torture? …

    “The CIA has lied to its overseers and the public, destroyed and tried to hold back evidence, spied on the Senate, made false charges against our staff, and lied about torture and the results of torture. And no one has been held to account. … There are right now people serving at high-level positions at the agency who approved, directed, or committed acts related to the CIA’s detention and interrogation program.”

    QED – as you have demonstrated – there is no “real leadership” in the White House on this transcendentally important issue.

    Thus, it struck us as disingenuous to finish, as you do, with a glaring non sequitur. You call on our timid President to “purge his administration” of a CIA director in whom he says he has “full confidence,” together with the torture alumni and alumnae still tenaciously protected by the same director.

    Again, with all due respect, it seems equally disingenuous to appeal to this President to declassify and release the earlier review ordered by former CIA Director Leon Panetta, the conclusions of which directly refute several of Brennan’s claims – much less release the full 6,800-page study of which we are permitted only a heavily redacted “executive summary.”

    You even include Panetta’s own observation that President Obama and Brennan both were unhappy with Panetta’s initial agreement with the committee to allow staff access to operational cables and other sensitive documents about the torture program.

    So where is the real leadership going to come from? Clearly, not from the White House. Russian President Putin is going to give Crimea to NATO before Obama does any of the things you suggested. And you know it.

    So where could the initiative come from in these final days before the Senate changes hands? Frankly, Senator Udall, we had been counting on you rising to the challenge before this unique opportunity is lost, probably forever.


    Where We Are Coming From

    We are, frankly, at a loss to explain your hesitancy – your lack of follow-through toward your stated goal “to ensure the full truth comes out … so that neither the CIA nor any future administration repeats the grievous mistake [of torture].”

    If you summon the courage to discharge what you no doubt realize is your duty, there is no way you will end up in jail. Indeed, this is precisely the kind of situation the Founders had in mind when they wrote the “Speech or Debate” clause into Article 1 of the Constitution.

    Whatever it is that you fear, you might keep in mind that several of us – who lack the immunity you enjoy – have paid and continue to pay a heavy price for exposing lies, injustice, and abuses like torture. One of us – the first to reveal that those grisly kinds of torture (aka “enhanced interrogation techniques”) were approved at the highest level of government – is in prison serving a 30-month sentence. A number of us have seen the inside of prisons for doing the right thing; and all of us know what it feels like to be shunned by former colleagues.

    Also important, despite our many years of service as senior intelligence officers and our solid record for accuracy, we are effectively banned from the so-called “mainstream media,” which continues to prefer the role of security-state accomplice in disparaging, for example, the findings of the Senate Intelligence Committee Study. (Never mind that the study is based on indisputably original CIA cables and other documents.) In contrast, you are not banned from the media – yet. You have a few more days; you need to use them.

    In your “Additional Views” on the Senate committee Study released on Dec. 9, you applaud Sen. Dianne Feinstein “for seeing this project to completion.” But wait. You are surely aware (1) that the project remains far from complete; and (2) that if you or one of your Senate colleagues do not move tout suite to release the full Study together with the earlier review commissioned by Panetta, the “project” will not be brought to “completion” any time soon – unless a courageous whistleblower runs great risk and does what you can do with impunity.

    Moreover, releasing the report, as you have the authority to do under the Constitution, would publicly demonstrate that at least one legal method of whistleblowing does exist. So when such truly illegal actions occur, even at the most senior levels, there is a way of righting wrongs.

    You are correct to call the committee Study “one of the most significant examples of oversight in the history of the U.S. Senate.” We imagine that the strong support you and Sen. Ron Wyden gave Sen. Feinstein helped make it so. And we join you both in applauding Sen. Feinstein’s tenacity in getting the Study’s 500-page executive summary released. John Brennan used every conceivable ruse to slow-roll and eviscerate the summary, but Sen. Feinstein faced him down. She achieved all she could, given the circumstances. But the project remains far from “completion.”

    In your “Additional Views” you note that, as a new member of the intelligence committee four years ago, you were “deeply disturbed to learn specifics about the flaws in the [torture] program, the misrepresentations, the brutality.” You add that you wrote the President letters about this in May, June, and July of this year. Surely the lack of response told you something. Please – not another letter to Obama. You need to go beyond letters.


    Your Turn

    Now it’s your turn, Senator Udall. Put Constitution and conscience into play, together with the immunity you enjoy. You can – and, in our view, your oath to the Constitution dictates that you must – rise to the occasion and find a way to release the entire 6,800-page Study, including CIA’s comments (but not redacted to a fare-thee-well). You need to put this at the very top of your job jar – now, before it is too late.

    The American people are owed the truth. As you have noted more than once, they are not likely to get it from Brennan – or the President for that matter. Nor will it come from the mainstream media with their customary “on-the-one-hand-and-then-on-the-other” approach to journalism. Polling data on the widespread acceptance of using torture “to keep us safe” is a direct result of that kind of coverage – as well as of the artful crafting of words and phrases in the questions asked in those surveys.

    The comments of the many of the TV talking-torture heads seem almost designed to discourage viewers from reading the damning executive summary itself. Who wants to read such abhorrent stuff at Christmastime, anyway?

    If those who approved and conducted torture are not held accountable, torture is a virtual certainty for the future. In that sense, you are quite right in saying that the Committee staff has done “seminal” work. The seeds have been sown for reining in an executive agency acting lawlessly; or, alternatively, for endorsing, out of fear, the practice of torture in the future.

    John Brennan, those who were in the CIA chain of command for torture, and the co-opted lawyers and faux-psychologists who lent their needed skills to the enterprise may be a bit nervous over the next few days until you are safely gone. But there is little sign they actually expect you to rise to the challenge.

    Indeed, Brennan and Co. seem intent on advertising their power and impunity by recently leaking the latest demonstration of lack of accountability. Surprise, surprise: the panel appointed by Brennan to investigate Brennan and his people for hacking into Senate Intelligence Committee computers has reportedly decided to hold no one accountable, including Brennan himself, who initially lied about it. Now we learn that he apparently authorized the hacking in the first place, so everyone involved receives a stay-out-of-jail-free card. Smug impunity needs to be challenged using your immunity.

    Finally, Senator Udall, history books will record the release of the highly redacted summary of the five-year-in-the-making Senate report on torture. It will also record whether or not the Senate rose – even if only in the form of a single, un-intimidated man, to expose truly and in fullness what was done in the name of the American people. Our history is replete with such individual acts of courage by Americans who put country before self. Will you join them?


    For the Steering Group, Veteran Intelligence Professionals for Sanity (VIPS)

    William Binney, former Technical Director, World Geopolitical & Military Analysis, NSA; co-founder, SIGINT Automation Research Center (ret.)

    Thomas Drake, Defense Intelligence Senior Executive Service, NSA (resigned)

    Daniel Ellsberg, former State Dept. & Defense Dept. Official (VIPS Associate)

    Mike Gravel, former Senator from Alaska; former Army intelligence officer

    Larry Johnson, CIA analyst & State Department/counterterrorism, (ret.)

    John Kiriakou, former CIA counterterrorism operations officer; federal prison, Loretto, Pennsylvania

    Edward Loomis, former Chief, SIGINT Automation Research Center, NSA

    David MacMichael, USMC & National Intelligence Council (ret.)

    Ray McGovern, Army Infantry/Intelligence officer & CIA presidential briefer (ret.)

    Elizabeth Murray, Deputy National Intelligence Officer for Middle East (ret.)

    Todd Pierce, MAJ, U.S. Army Judge Advocate (ret.)

    Coleen Rowley, Minneapolis Division Counsel & Special Agent, FBI (ret.)

    Peter Van Buren, Department of State, Foreign Service Officer (ret.)

    Kirk Wiebe, Senior Analyst, SIGINT Automation Research Center, NSA (ret.)

    Ann Wright, Col., US Army (ret); Foreign Service Officer (ret.)



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  • Local LE Chipping Away at the Fourth Amendment

    October 23, 2014 // 1 Comment

    Tags: , ,
    Posted in: Democracy, Post-Constitution America

    bill-of-rights


    The Bill of Rights was designed to protect the People from their government. That’s quite literally becoming history today as new challenges, now from local law enforcement, chip away at the Fourth Amendment’s protections of privacy. New laws and devices spread spying on Americans to the local level.

    A Brief Explanation of Post-Constitutional America

    The cornerstone of the Bill of Rights was that the People grant exceptions to those rights to the Government. Absent those specific exceptions, the rest of the stuff was inalienable, not up for grabs, not dependent in any way on Government’s decision to grant or withhold them. Constitutional America was clearly imperfect, but the underlying premise spoke of a striving toward an ideal.

    The cornerstone of Post-Constitutional America is just the opposite. The People have what rights the Government chooses to allow them to have, such that privacy is the exception, free speech a variable, torture a tool to be used or withheld as the Government finds appropriate. It is a turning on its head of Constitutional America, back to a time when a tyrant and king (may we call old King George an “evil dictator” to use the preferred language of today?) controlled Americans’ daily lives by decree.

    It should be unnecessary to have to argue the critical importance of the Fourth Amendment, but these days it seems necessary. 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. Privacy is the right to think without the Government intruding. It is part of being American. If you want to personally give it away for yourself, feel free, but you are required to allow others to exercise it.

    9/11 Changed Everything

    Under the umbrella of post-9/11 fear, the relationship between the Government and the People of the United States changed. As early NSA whistleblowers Thomas Drake, Bill Binney, Kirk Wiebe and others made clear, within days after the attacks, the vast capability of the NSA was turned 180 degrees away from sites abroad toward a new definition of the People: we were now targets.

    Such acts, along with flimsy pieces of faux-legislation such as the Patriot Act, were not only harmful to our privacy by themselves, they also sent clear signals to law enforcement at all levels that new rules applied; after all, if the federal government was spying on Americans in clear contrivance of the Fourth Amendment, then why couldn’t local law enforcement do the same? With such tacit approval, and the redefining of every person in America as a potential terrorist, it all fell into place.

    So while the Snowden NSA revelations expose violations of the Fourth Amendment on the largest scale, let’s examine some examples of how those big-scale acts filter down to local levels.

    Los Angeles

    In 2008 the city of Los Angeles passed municipal ordinance 41.49 requiring hotels to gather, hold for at least 90 days and make available upon request a large amount of information on their guests. The information included guests’ credit card number, home address, driver’s license information and vehicle license number. Several dozen other cities, including Atlanta and Seattle, passed similar ordinances.

    Ordinarily the police would need to show probable cause, and to seek individual warrants on a person-by-person, case-by-case basis, to gather such information. The L.A. ordinance, however, allows police to simply demand it from a hotel, with no judicial or other oversight. The premise was that the information was the property of the hotel once the guest voluntarily surrendered it in order to stay the night. Personal information transformed into “business records,” L.A. argues, is inherently less “private” than personal information per se.

    Similarities to how the NSA collected mountains of phone call data from places like Verizon, claiming it too was simply now part of business records routinely available per the Patriot Act, are noted.

    The U.S. Supreme Court, after two opposite rulings through lower courts, has agreed to hear the case after the City of Los Angeles’ petition to do so. L.A. claims “These laws expressly help police investigate crimes such as prostitution and gambling, capture dangerous fugitives and even authorize federal law enforcement to examine these registers, an authorization which can be vital in the immediate aftermath of a homeland terrorist attack.”

    In addition to the clear, broad Fourth Amendment violations, opponents cite the reality that information, once gathered, can be disseminated anywhere for any purpose. Data gathered in L.A. for a perhaps legitimate gambling investigation can go on to populate an infinite number of databases indefinitely for an undeterminable range of purposes into the future. It does not go away. It waits to be used.

    And all that brings us to Virginia.

    Virginia Police Collect and Share Phone Data

    Five local police departments in southeastern Virginia have been secretly and automatically sharing telephone data and compiling it into a large database for nearly two years. According to a 2012 memorandum of understanding published for the first time this week by the Center for Investigative Reporting (the database had been kept secret from the public,) the police departments from Hampton, Newport News, Norfolk, Chesapeake, and Suffolk all participate in something called the “Hampton Roads Telephone Analysis Sharing Network.”

    Those police departments “agree to share telephone intelligence information derived from any source,” including subpoenaed telephone call detail records, subpoenaed telephone subscriber information, and seized mobile devices. The telephone intelligence information will be stored in the master Pen-Link telephone database and participating agencies can make inquires of the database by either telephone or e-mail contact with a member.”

    Such data transfers, the document goes on to explain, can happen automatically if the agency agrees to have certain software installed on their computer, or via e-mail or DVD. No information is available as to what, if any, data security protocols are in place.

    The significance of such data transfer cannot be underplayed. The assumption by the police is that any data gathered legally– for example, under warrant, after a showing of probable cause specific to a case or incident– can then be stored, shared and repurposed forever as the police see fit. The shaky legal premise for this whole system is that once taken in via some sort of legal means (though of course there is no outside control that all of the data was gathered legally), the data becomes akin to common property, and no further justification or judicial oversight needs to be applied to its use, any use, ever, forever.

    An even shakier legal premise it that a secret database of any kind can be maintained by the police: Virginia law, The Government Data Collection and Dissemination Practices Act, specifically states “There shall be no personal information system whose existence is secret.”

    Not an End in Sight

    Local actions have commonalities with the larger actions the NSA has been doing. The use of the collective where the law intended the individual– a single phone call versus redefining every call as a single set of business records– is clear. The manipulation of a legal act, such as collecting information via a warrant and then repurposing it into a general pool of data in Virginia, is also a marker of modern times. The most significant commonality between local actions and federal ones is the broad contempt for civil liberties. And that describes Post-Constitutional America as clearly as anything else.

    The examples above are, or likely soon will be, going to be tested in court. Other offenses to the Fourth Amendment have fallen to the People’s side: In 2012, a court ruled law enforcement authorities generally need search warrants when they attach GPS devices to a vehicle. In July 2014, the Supreme Court said that the authorities need warrants to dive into the mobile phones of people they arrest.

    At the same time, the proliferation of low-cost surveillance devices, such as license plate scanners and Stingray, continue to raise new questions even as a handful of older ones are resolved. The battle against the tyrant King George continues.



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  • E.O. 12333: End-Running the Fourth Amendment

    September 22, 2014 // 7 Comments

    Tags: , , , ,
    Posted in: Democracy, Post-Constitution America




    Historians of the Constitutional Era of the United States (1789-2001, RIP) will recall the Fourth Amendment to the Constitution, the one that used to protect Americans against unreasonable and unwarranted searches.

    The Supreme Court had generally held that searches required a warrant. That warrant could be issued only after law enforcement showed they had “probable cause.” That in turn had 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 basic idea for more or less over 200 years: unless the government has a good, legal reason to look into your business, it couldn’t. As communications changed, the Fourth evolved to assert extend those same rights of privacy to phone calls, emails and texts, the same rules applying there as to physical searches.

    That was Then

    It was a good run. 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. Folks, as our president now refers to us, should not have to fear the Knock on the Door in either their homes or The Homeland writ large.

    In Post-Constitutional America (2001-Present), the government has taken a bloody box cutter to the original copy of the Constitution and thrown the Fourth Amendment in the garbage. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the concept of privacy itself: Our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint.

    The government also invades our privacy in multiple other ways, all built around end-runs of the Fourth Amendment, clever wordplay, legal hacks and simple twisting of words. Thus you get illegally obtained information recycled into material usable in court via what is called parallel construction. You have the creation of “Constitution Free” zones at the U.S. border. The Department of Justice 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, to grab folks’ emails by searching one web server instead of millions of individual homes. Under a twist of an old “privacy law,” doctors disclose your medical records to the NSA without your permission or knowledge. SWAT raids by local police designed to break into African-American businesses on harassment expeditions are also now OK.

    The Center of It All: Executive Order 12333

    The most egregious example of such word-twisting and sleazy legal manipulations to morph illegal government spying under the Fourth Amendment into topsy-turvy quasi-legal spying is the use of Executive Order 12333, E.O. 12333, what the spooks call “twelve triple three.” The Order dates from 1981, signed by Ronald Reagan to buff up what his predecessors limited in response to overzealous law enforcement activities. The Gipper would be mighty proud that his perhaps most lasting accomplishment was legalizing surveillance of every American citizen.

    Back to today. Despite all the secret FISA court decisions and as yet uncovered legal memos, most collection of U.S. domestic communications and data is done under E.O. 12333, section 2.3 paragraph C.

    Specifically, the one sentence that the government believes allows them to bypass the Fourth Amendment says the intelligence community can “collect, retain, or disseminate information concerning United States persons” if that information is “obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation.”

    So, the work-around for the Fourth Amendment is as follows: NSA collects massive amounts of data on foreigners, often by hoovering up every fragment of electronic stuff flowing around the U.S. it can. So, while purportedly looking for a single terrorist email enroute to Yemen (“the needle”), the NSA collects every single email from Google, Yahoo and Microsoft (“the haystack.”) Thus, any American’s emails caught in that net are considered to have been collected “incidentally” to the goal of finding that one terrorist email. The NSA claims that the Executive Order thus makes its mass-scale violations of the Fourth Amendment legal.

    Tom Drake, perhaps the best-known NSA whistleblower prior to Edward Snowden, put it in simpler terms: “12333 is now being used as the legal justification for everything.”

    Oh and hey reformers: Executive Orders by one president stay in force until another president changes or negates them. We could have one at work today written by George Washington. What that also means is that Congress, should they regain consciousness, can’t change an E.O. Congress could in theory pass a law making the contents of an E.O. invalid, but that presumes someone in Congress knows the order exists and what it says. Many E.O.’s are classified and if they are not, such as 12333, the legal documents behind them and FISA interpretations of them, likely are.

    Snowden Knew

    Again, as a historical note, executive orders– basically dictates from the president– once did not trump the Constitution. However, in Post-Constitutional America, they do.

    As for this realization we have come upon, E.O. 12333, well, we’re all behind the curve. Edward Snowden, while still at NSA, wrote a now-famous email to the spy agency’s legal advisor, asking specifically whether an Executive Order has more legal force than an actual law passed by Congress, or indeed the Constitutional itself. The NSA’s answer was a bit convoluted, but said in a pinch the Constitution wins (wink wink), even while acting as if the opposite is true.

    As General Michael Hayden, then head of the NSA, said in a blistering blast of Newspeak, “I am convinced that we are lawful because what it is we’re doing is reasonable.”

    Ask Obama This Question

    So let’s make it simple: Journalists with access to the president, ask this question directly: Why is E.O. 12333 being used today, interpreted by the FISA court or any other means, stating that the NSA’s surveillance of U.S. citizens is “reasonable,” and thus no warrant is required for the surveillance to continue and remain constitutional under the Fourth Amendment?

    Of course getting an answer out of Obama will not happen. After all, he is the Constitutional law professor who studied the document the same way a burglar learns about an alarm system. TO BREAK IT BETTER.


    BONUS: The stuff above is real amateur-level writing on E.O. 12333. When you are ready to dig in deep, get over to Marcy Wheeler’s blog. She is the smartest person working in journalism today on the subject. My debt to her is hereby acknowledged.



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  • I Join the Advisory Board for ExposeFacts.org

    July 29, 2014 // 7 Comments

    Tags: , ,
    Posted in: Democracy, Embassy/State, Iraq




    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))



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  • What We’ve Lost Since 9/11: The First Amendment in Post-Constitutional America

    July 16, 2014 // 12 Comments

    Posted in: Democracy, Post-Constitution America

    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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  • Kerry Tells Snowden to “Man Up” and Come Home

    May 29, 2014 // 48 Comments

    Tags: , , , ,
    Posted in: Democracy, Embassy/State




    U.S. Secretary of State John Kerry, who at this point has all the credibility of a minor Kardashian just out of rehab, somehow was allowed on national television to say this:

    If Mr. Snowden wants to come back to the United States, we’ll have him on a flight today. [He] should stand up in the United States and make his case to the American people… A patriot would not run away… Let him come back and make his case. If he cares so much about America and he believes in America, he should trust the American system of justice.

    A near-complete failure as Secretary of State (if you are not sure, read this), Kerry is apparently relegated within the Obama administration to the role of mumbling bully-boy statements, faux-machismo rantings whose intended audience and purpose are very, very unclear. Did Kerry think he might persuade Snowden to take up the challenge and fly back to the U.S.? Maybe meet Kerry in the Octagon mano-a-mano? No, Kerry sounded much more like Grandpa Simpson than America’s Senior Diplomat.

    And Kerry should know better. He once, perhaps briefly, was also brave enough to act on conscience.

    Kerry’s Fall from Courage

    In the 1960s, Kennedy-esque, Kerry went from Yale to Vietnam to fight in what he came to see as a lost war. He became one of the more poignant voices raised in protest by antiwar veterans. He threw away his medals, no doubt causing some pundit of the day to claim he had harmed America in the eyes of its enemies, perhaps disgraced his fellow service members. Four decades after his Vietnam experience, he has achieved what will undoubtedly be the highest post of his lifetime: secretary of state. What does he do from that peak? Make fun of Edward Snowden.

    (I’ll keep the focus on Kerry here, but is important to mention that the things said about Snowden are the same old lazy, sad tropes said about whistleblowers since Dan Ellsberg. They should face justice. They harmed America (never any specifics on that one) and so forth.)

    Make His Case to the American People?

    Having watched Manning, Snowden (and Kerry if he’d admit it) knows what he could expect from American justice.

    Trials under the Espionage Act, which the U.S. says is how Snowden will be charged, quite specifically prohibit discussion of anything except proof or rebuttal that the accused did leak classified information. A jury is not allowed to rule on, or even hear about, motive and intent.

    John Kiriakou, the former CIA officer who was the first to go on-the-record with the media about waterboarding, pled guilty in his Espionage Act case last year partially because a judge ruled he couldn’t tell the jury about his lack of intent to harm the United States. In the case of State Department official Stephen Kim, the judge ruled the prosecution “need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.” In the Espionage Act case against NSA whistleblower Thomas Drake, the government filed motions to make sure the words “whistleblowing” or “overclassification” would never be uttered at trial. In Chelsea Manning’s trial, Manning’s defense wanted to argue she intended to inform the public, that the military was afflicted with a deep and unnecessary addiction to overclassification, and that the government’s own internal assessments showed she caused no real damage to U.S. interests. All this information was ruled inadmissible.

    A SuperMax cell is not a very good bully pulpit.

    Kerry is either lying, or his hopelessly ignorant.

    John Kerry, here’s a deal Snowden might accept: When the Department of Justice agrees to charge James Clapper, national director of intelligence, for lying under oath to Congress about the surveillance of Americans, Snowden will know American justice is fair and equally applied, and come home for a trial. Better yet Kerry, promise that both trials will be televised live with no sealed documents or secret sessions. Deal?

    Fair Trial?

    As for any sort of a fair trial, John Kerry claimed in the past “People may die as a consequence to what this man [Snowden] did. It is possible that the United States would be attacked because terrorists may now know how to protect themselves in some way or another that they didn’t know before.”

    Despite the fact that none of that has happened in the long year since Snowden’s information has been on the Internet worldwide, it does suggest officers of the United States government such as Kerry have stepped back from the now-quaint notion of innocent until proven guilty.

    Patriots Don’t Run

    As for Kerry’s remark about patriots not running, the Secretary should check with the Department of State he titularly heads up. He’d learn between 2009-2011 the U.S. granted asylum to 1,222 Russians, 9,493 Chinese, and 22 Ecuadorians, not including family members, among many others from a variety of countries. The U.S. acknowledges these people as patriots, men and women who took a dangerous and principled stand against a government they felt had gone wrong. A double-standard is no standard at all.

    Love of Country

    As for love of country, which Kerry maintains Snowden does not have until he surrenders himself to American authorities, Snowden took his love of America with him. Unlike whatever topsy-turvy version Kerry might still hold to, love of country does not necessarily mean love for its government, its military, or its intelligence services. Snowden, and Kerry took an oath that stated: “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” He didn’t pledge fealty to the government or a president or party, only — as the Constitution makes clear — to the ultimate source of legitimacy in our nation, The People.

    In an interview, Snowden indicated that he held off on making his disclosures for some time, in hopes that Obama might look into the abyss and decide to become the bravest president in our history by reversing the country’s course. Only when Obama’s courage or intelligence failed was it time to become a whistleblower. Snowden risked everything, and gained almost nothing personally, not to betray his country, but to inform it.

    John Kerry, love is expressed through one’s actions, not just words. Snowden clearly believes something other, more, deeper, better than himself matters. He has to believe that one courageous act of conscience can change his country. I think once, long ago, John Kerry might have believed that, too.


    BONUS: John Kerry, who said patriots don’t run, and that people should face justice, make their case to the American people and trust in the system, is currently running away from a Congressional subpoena because he doesn’t want to talk about Benghazi.



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  • New Whistleblower Documentary SILENCED World Premiere

    April 21, 2014 // 18 Comments

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    Posted in: Iraq

    I am very proud of my role as Associate Producer for the film SILENCED. Executive Produced by Susan Sarandon, directed by Oscar-nominated James Spione, the film premiered April 19 at the Tribeca International Film Festival here in New York.

    The film is about the war being fought between those who reveal the dark truths about the United States’ national security policies, and a federal government ever more committed to shrouding its activities in secrecy.

    According to the Justice Department, those who leak sensitive information to the public are a threat to the nation’s safety. We have seen under the Obama Administration more Espionage Act prosecutions than all previous presidents combined. Many of those pursued by the government risked their lives, their freedom and their honor to commit an act of conscience and tell the American people what their government is doing in their names.



    Exec. Producer Susan Sarandon

    SILENCED focuses on three patriotic Americans, all of whom I have written about here before, and all of whom I hold as friends (I was interviewed and was originally scheduled to appear myself in the film for my own whistleblowing, but ended up on the cutting room floor.)

    Jesselyn Radack blew the whistle on the Department of Justice’s attempts to cover up the unConstitutional treatment of the so-called American Taliban, John Walker Lindh. As a young lawyer, Radack fought for Lindh’s right to be represented as he was interrogated, then, after discovering the cover-up, told us all what happened. Radack went on to devote her career to defending whistleblowers (Disclosure: Radack was part of the team that defended me after the Department of State retaliated against me for my own whistleblowing), including the other two subjects of this film. She currently is part of Edward Snowden’s legal team.

    Thomas Drake blew the whistle on the NSA’s domestic spying programs years before Edward Snowden, and fought a bitter battle for his freedom. Almost immediately following 9/11, Tom began finding threads within the NSA leading to the unConstitutional spying on Americans that only now is being fully exposed. Tom was also one of the first U.S. government employees to go to Congress with evidence that the intelligence community might indeed have prevented 9/11 had they shared specific information already on file among various agencies.

    John Kiriakou was the first person associated with the CIA to publicly declare waterboarding is torture. He struggled to maintain his freedom, but ultimately was pressed into a plea bargain to avoid bankrupting his family. John is now serving a 30 month sentence in Federal prison for his whistleblowing. John’s wife was present at the premiere, and read aloud to the audience a letter John had sent her from prison.



    Director James Spione

    I’ll leave the review of SILENCED to others, but it’s pretty damn good. I am far from objective on this subject, for being associated directly with the project, for being a whistleblower myself, and because I remain a patriotic American deeply concerned about what our nation has become. As we continue our slide into a post-Constitutional America, it will be future whistleblowers who may be the only ones who will show us what a government once of the people now is doing.




    SILENCED will move from Tribeca through a tour of various film festivals. Wider distribution is in the works. Until then, here’s the trailer for the film (again, though I’m in the trailer, I’m not in the final version of the film.)






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  • Whistleblowing is About the Message, Not the Messenger

    January 9, 2014 // 18 Comments

    Tags: , , , ,
    Posted in: Democracy

    The current media pablum about whether Snowden is “narcissistic” or “spiteful” or the devil himself is nonsense.


    This kind of thing has become a set-piece in America to dehumanize and discredit whistleblowers so as to dilute public support for the vital information they make available. In high school debate class this lame name-calling is known as ad hominem, one of the lowest forms of argument. The idea is that a claim is rejected on the basis of some irrelevant fact about the person presenting the claim. First comes an attack against the character of person making the claim. Second, this attack is taken to be evidence against the claim the person in question is making, just like stating 1+3=2.

    The technique is in full use against NSA whistleblower Edward Snowden, particularly swirling around demands by the New York Times and The Guardian that the U.S. government grant him clemency.

    The use of cheap ad hominem takes its crudest form in “opinion pieces” such as those by Washington Post typist Ruth Marcus. In the course of only a couple of hundred words, Marcus (who has never actually spoken to Snowden) calls Snowden messianic, smug, self-righteous, egotistical, disingenuous, megalomaniacal, overwrought, feckless and insufferable before concluding “The whistleblower personality is rarely an attractive one. Whistleblowers tend to be the difficult ones, the sort who tend to feel freer to speak out precisely because they don’t fit in. So perhaps it is not a surprise that the biggest whistleblower of all time has an unpleasant personality to match.” In an earlier piece, Marcus announced that “Snowden is no Socrates and no Martin Luther King,” as if anyone but her was even making such assertions. She concludes that “Socrates is [sic] a great philosopher and Snowden the lowest type of menial.”

    Former National Security Agency and CIA head Michael Hayden said of Snowden: “I used to say he was a defector… I’m now kind of drifting in the direction of perhaps more harsh language… such as traitor.”

    None of this is new. After Daniel Ellsberg exposed America’s duplicitous history in Vietnam by leaking the Pentagon Papers, the Nixon White House broke into his psychiatrist’s office looking for dirt to smear him. Chelsea Manning’s sexuality featured prominently and pruriently in media coverage of her disclosures. NSA whistleblower Thomas Drake described his own experience as “the politics of personal destruction while also engaging in abject, cut throat character assassination, and complete fabrication and frame up.” When the State Department was seeking to prosecute/fire me because of my own whistleblowing (seriously minor compared to Snowden of course) they pushed out all sorts of nasty things, and several media people accused me of being bad in some way. I was typically asked to “respond” to questions that I blew the whistle as part of some self-promotion campaign, or that I was simply a disgruntled employee out for revenge.

    When asked to respond to such statements, I would cut them off and stipulate “I am indeed a terrible person, mean to babies and puppies. And so what? This must be about the message, not the messenger. I don’t matter. What I said is either true or made up (of course it was true). Focus your energy on that. What I said either exposed government waste and mismanagement or it did not (it did), so focus your energy on that and not whether I return my library books on time (I do).

    The technique of smearing the messenger is crudely wielded when people try to diminish Snowden’s information’s value by criticizing him for not “manning up” to face consequences in the U.S., or for “selling out” to the Russians for asylum. Snowden, having watched what happened to Manning, Drake and others, knew he would be unlikely to be handled justly. The Espionage Act of 1917 carries the death penalty, and as we learned with the Manning trial the government need not prove any actual damage was done or any foreign power was actually aided to gain a conviction. The proceedings would all be classified and Snowden would be held in devastating pretrial detention in some Supermax. He would be prohibited from discussing his case with anyone but perhaps his lawyer and denied any outside contact or information. I don’t think Snowden wanted to live in Russia but under those circumstances he did not have many options outside of basically handing himself over to the U.S. government to be disappeared. To put this in some perspective, the U.S., after all, takes in many political asylees each year, the circumstances of which ebb and flow with U.S. policy of the moment. Other countries do the same and unless one is willing to condemn all those political asylees in the same way as one does Snowden (no guts, face the music, etc.) than it isn’t right to single him out.

    Snowden. I don’t know the guy. Maybe he is cool, fun to hang around with, quick with a joke and nice to babies, puppies and kittens. Maybe he is not. But outside the guilty pleasures of gossip (what new diet trick is Edward using to stay trim? Is it true about him and Lady Gaga?!?), Snowden, in a larger sense, in a good way, doesn’t matter as a person. What matters is what he has revealed to us about a national security state that has clearly gone quite insane, violating our liberty and our freedom to live without unwarranted search and seizure of our private lives.

    We would know nothing about the extent of NSA intrusion without Snowden’s information. Whether the debate on the NSA leads anywhere or not is an evolving question, but, without Snowden’s leaks, it would not be happening in any form. Let’s focus on Snowden’s information to save our democracy and leave the hypocrisy outside the door, the name-calling on the schoolyard and the gossiping for the Kardashians.


    BONUS: No one in government takes an “oath of secrecy.” I held a TS clearance for 23 years. You sign a paper promising to follow the rules on handling classified info. However, you do swear one oath, to preserve and defend the Constitution against all enemies foreign and domestic. Snowden believed he was acting on that oath in revealing the extent that the NSA had spun out of control. That action is called “conscience,” and it requires significant courage. FYI.



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  • NSA Hacks, Moves Snowden “Naughty” List; Tells Kids Santa Isn’t Real

    December 25, 2013 // 10 Comments

    Tags: , ,
    Posted in: Democracy

    (This post is not suitable for children)

    The NSA announced it successfully broke into the encrypted fiber optic cables connecting the North Pole to the Internet backbone. A spokesperson announced this was necessary to protect America against terrorism, or the Bolsheviks, or whatever it is you are irrationally afraid of, just make up something, we don’t care what you proles think anyway.

    Whilst inside Santa’s extensive database, NSA “hackers” accessed the critical Naughty and Nice lists. Referring to the Naughty information internally at NSA as “Santa’s No-Fly List,” the NSA operatives began a detailed data manipulation attack, shifting prominent whistleblowers and journalists such as Edward Snowden, Chelsea Manning, Daniel Ellsberg, Jess Radack, John Kiriakou, Tom Drake, Jim Risen, Glenn Greenwald, Janet Reitman, Laura Poitras, all of the Guardian and Channel 4 in the UK, and others, over to Naughty. Santa had classified these and other supporters of democracy as MOST NICE, under an eyes-only program codenamed SPLENDID.

    The NSA said they originally planned to have armed drones deliver the traditional coal into each of the SPLENDID stockings, until analysts discovered that even coal has some market value. “They get nothing, even those who don’t celebrate Christmas and might have been offended deeply by the coal,” exclaimed the NSA spokesperson on the condition of anonymity as he flew out of sight on leathery wings.

    Following these revelations, more information emerged about the extent of the NSA’s actions. Over the years, many children’s letters to Santa have switched over to email format. The NSA collected the millions of email addresses, many with monikers such as ilovepuppiesandkittiesandcandycanes(at)gmail.com, and sent each one a personalized reply:

    Dear Little Cindy-Lou Who: Santa is dead. He wasn’t even real to begin with but we tortured and killed him anyway. As we waterboarded him the last time, he moaned like a whore for mercy. Also, your parents lied to you about the flying reindeer and your mom ate the cookies herself Christmas Eve while you slept. So watch your parents more closely, and when you see them do more un-American things, tell your Uncle NSA. Also, be sure to leave your webcam on when you’re in the bath.

    The Grinch himself was quoted as saying “I give up. Every year I try and up my game, but I can’t compete with the NSA in pure evil, or technical skills. In fact, I’m in line at the freakin’ Apple store right now trying to get my jingtinglers, blumbloopas and floofloovers to boot.”

    At his North Pole home, Santa wept quietly for our nation’s loss.



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  • Whistleblowers Write Open Letter to Federal Employees after Snowden

    December 23, 2013 // 5 Comments

    Tags: , , , , , , , ,
    Posted in: Democracy



    I know you’re out there, and this is for you.

    Somewhere there is a Federal government employee who has witnessed an act of government waste, fraud, malfeasance or mismanagement and is unsure what to do next. Several former whistleblowers have written a letter to you. I fully endorse what they say (see my additional thoughts here), and encourage you to take the hard, right choice over staying silent.

    We’re all depending on you.

    (This open letter originally appeared in the UK’s Guardian newspaper; links added)

    The Letter

    At least since the aftermath of September 2001, western governments and intelligence agencies have been hard at work expanding the scope of their own power, while eroding privacy, civil liberties and public control of policy. What used to be viewed as paranoid, Orwellian, tin-foil hat fantasies turned out post-Snowden, to be not even the whole story.

    What’s really remarkable is that we’ve been warned for years that these things were going on: wholesale surveillance of entire populations, militarization of the internet, the end of privacy. All is done in the name of “national security”, which has more or less become a chant to fence off debate and make sure governments aren’t held to account – that they can’t be held to account – because everything is being done in the dark. Secret laws, secret interpretations of secret laws by secret courts and no effective parliamentary oversight whatsoever.

    By and large the media have paid scant attention to this, even as more and more courageous, principled whistleblowers stepped forward. The unprecedented persecution of truth-tellers, initiated by the Bush administration and severely accelerated by the Obama administration, has been mostly ignored, while record numbers of well-meaning people are charged with serious felonies simply for letting their fellow citizens know what’s going on.

    It’s one of the bitter ironies of our time that while John Kiriakou (ex-CIA) is in prison for blowing the whistle on US torture, the torturers and their enablers walk free.

    Likewise WikiLeaks-source Chelsea (née Bradley) Manning was charged with – amongst other serious crimes – aiding the enemy (read: the public). Manning was sentenced to 35 years in prison while the people who planned the illegal and disastrous war on Iraq in 2003 are still treated as dignitaries.

    Numerous ex-NSA officials have come forward in the past decade, disclosing massive fraud, vast illegalities and abuse of power in said agency, including Thomas Drake, William Binney and Kirk Wiebe. The response was 100% persecution and 0% accountability by both the NSA and the rest of government. Blowing the whistle on powerful factions is not a fun thing to do, but despite the poor track record of western media, whistleblowing remains the last avenue for truth, balanced debate and upholding democracy – that fragile construct which Winston Churchill is quoted as calling “the worst form of government, except all the others”.

    Since the summer of 2013, the public has witnessed a shift in debate over these matters. The reason is that one courageous person: Edward Snowden. He not only blew the whistle on the litany of government abuses but made sure to supply an avalanche of supporting documents to a few trustworthy journalists. The echoes of his actions are still heard around the world – and there are still many revelations to come.

    For every Daniel Ellsberg, Drake, Binney, Katharine Gun, Manning or Snowden, there are thousands of civil servants who go by their daily job of spying on everybody and feeding cooked or even made-up information to the public and parliament, destroying everything we as a society pretend to care about.

    Some of them may feel favourable towards what they’re doing, but many of them are able to hear their inner Jiminy Cricket over the voices of their leaders and crooked politicians – and of the people whose intimate communication they’re tapping.

    Hidden away in offices of various government departments, intelligence agencies, police forces and armed forces are dozens and dozens of people who are very much upset by what our societies are turning into: at the very least, turnkey tyrannies.

    One of them is you.

    You’re thinking:

    ● Undermining democracy and eroding civil liberties isn’t put explicitly in your job contract.
    ● You grew up in a democratic society and want to keep it that way
    ● You were taught to respect ordinary people’s right to live a life in privacy
    ● You don’t really want a system of institutionalized strategic surveillance that would make the dreaded Stasi green with envy – do you?

    Still, why bother? What can one person do? Well, Edward Snowden just showed you what one person can do. He stands out as a whistleblower both because of the severity of the crimes and misconduct that he is divulging to the public – and the sheer amount of evidence he has presented us with so far – more is coming. But Snowden shouldn’t have to stand alone, and his revelations shouldn’t be the only ones.

    You can be part of the solution; provide trustworthy journalists – either from old media (like this newspaper) or from new media (such as WikiLeaks) with documents that prove what illegal, immoral, wasteful activities are going on where you work.

    There IS strength in numbers. You won’t be the first – nor the last – to follow your conscience and let us know what’s being done in our names. Truth is coming – it can’t be stopped. Crooked politicians will be held accountable. It’s in your hands to be on the right side of history and accelerate the process.

    Courage is contagious.

    Signed by:

    Peter Kofod, ex-Human Shield in Iraq (Denmark)
    Thomas Drake, whistleblower, former senior executive of the NSA (US)
    Daniel Ellsberg, whistleblower, former US military analyst (US)
    Katharine Gun, whistleblower, former GCHQ (UK)
    Jesselyn Radack, whistleblower, former Department of Justice (US)
    Ray McGovern, former senior CIA analyst (US)
    Coleen Rowley, whistleblower, former FBI agent (US)



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  • War Comes Home: Welcome to Post-Constitution America

    August 21, 2013 // 7 Comments

    Tags: , , ,
    Posted in: Afghanistan, Embassy/State

    This article originally appeared on TomDispatch.com. In light of the Bradley Manning verdict, this seemed worth re-reading.

    On July 30, 1778, the Continental Congress created the first whistleblower protection law, stating “that it is the duty of all persons in the service of the United States to give the earliest information to Congress or other proper authority of any misconduct, frauds, or misdemeanors committed by any officers or persons in the service of these states.”

    Two hundred thirty-five years later, on July 30, 2013, Bradley Manning was found guilty on 20 of the 22 charges for which he was prosecuted, specifically for “espionage” and for videos of war atrocities he released, but not for “aiding the enemy.”

    Days after the verdict, with sentencing hearings in which Manning could receive 136 years of prison time ongoing, the pundits have had their say. The problem is that they missed the most chilling aspect of the Manning case: the way it ushered us, almost unnoticed, into post-Constitutional America.


    The Weapons of War Come Home

    Even before the Manning trial began, the emerging look of that new America was coming into view.  In recent years, weapons, tactics, and techniques developed in Iraq and Afghanistan as well as in the war on terror have begun arriving in “the homeland.”

    Consider, for instance, the rise of the warrior cop, of increasingly up-armored police departments across the country often filled with former military personnel encouraged to use the sort of rough tactics they once wielded in combat zones. Supporting them are the kinds of weaponry that once would have been inconceivable in police departments, including armored vehicles, typically bought with Department of Homeland Security grants. Recently, the director of the FBI informed a Senate committee that the Bureau was deploying its first drones over the United States.  Meanwhile, Customs and Border Protection, part of the Department of Homeland Security and already flying an expanding fleet of Predator drones, the very ones used in America’s war zones, is eager to arm them with “non-lethal” weaponry to “immobilize targets of interest.”

    Above all, surveillance technology has been coming home from our distant war zones. The National Security Agency (NSA), for instance, pioneered the use of cell phones to track potential enemy movements in Iraq and Afghanistan. The NSA did this in one of several ways. With the aim of remotely turning on cell phones as audio monitoring or GPS devices, rogue signals could be sent out through an existing network, or NSA software could be implanted on phones disguised as downloads of porn or games.

    Using fake cell phone towers that actually intercept phone signals en route to real towers, the U.S. could harvest hardware information in Iraq and Afghanistan that would forever label a phone and allow the NSA to always uniquely identify it, even if the SIM card was changed. The fake cell towers also allowed the NSA to gather precise location data for the phone, vacuum up metadata, and monitor what was being said.

    At one point, more than 100 NSA teams had been scouring Iraq for snippets of electronic data that might be useful to military planners. The agency’s director, General Keith Alexander, changed that: he devised a strategy called Real Time Regional Gateway to grab every Iraqi text, phone call, email, and social media interaction. “Rather than look for a single needle in the haystack, his approach was, ‘Let’s collect the whole haystack,’ ” said one former senior U.S. intelligence official. “Collect it all, tag it, store it, and whatever it is you want, you go searching for it.”

    Sound familiar, Mr. Snowden?


    Welcome Home, Soldier (Part I)

    Thanks to Edward Snowden, we now know that the “collect it all” technique employed by the NSA in Iraq would soon enough be used to collect American metadata and other electronically available information, including credit card transactions, air ticket purchases, and financial records. At the vast new $2 billion data center it is building in Bluffdale, Utah, and at other locations, the NSA is following its Iraq script of saving everything, so that once an American became a target, his or her whole history can be combed through. Such searches do not require approval by a court, or even an NSA supervisor. As it happened, however, the job was easier to accomplish in the U.S. than in Iraq, as internet companies and telephone service providers are required by secret law to hand over the required data, neatly formatted, with no messy spying required.

    When the U.S. wanted something in Iraq or Afghanistan, they sent guys to kick down doors and take it. This, too, may be beginning to happen here at home. Recently, despite other valuable and easily portable objects lying nearby, computers, and only computers, were stolen from the law offices representing State Department whistleblower Aurelia Fedenisn. Similarly, a Washington law firm representing NSA whistleblower Tom Drake had computers, and only computers, stolen from its office.

    In these years, the FBI has brought two other NSA wartime tools home. The Bureau now uses a device called Stingray to recreate those battlefield fake cell phone towers and track people in the U.S. without their knowledge. Stingray offers some unique advantages: it bypasses the phone company entirely, which is, of course, handy in a war zone in which a phone company may be controlled by less than cooperative types, or if phone companies no longer cooperate with the government, or simply if you don’t want the phone company or anyone else to know you’re snooping. American phone companies seem to have been quite cooperative. Verizon, for instance, admits hacking its own cellular modems (“air cards”) to facilitate FBI intrusion.

    The FBI is also following NSA’s lead implanting spyware and other hacker software developed for our war zones secretly and remotely in American computers and cell phones. The Bureau can then remotely turn on phone and laptop microphones, even webcams, to monitor citizens, while files can be pulled from a computer or implanted onto a computer.

    Among the latest examples of war technology making the trip back to the homeland is the aerostat, a tethered medium-sized blimp. Anyone who served in Iraq or Afghanistan will recognize the thing, as one or more of them flew over nearly every military base of any size or importance. The Army recently announced plans to operate two such blimps over Washington, D.C., starting in 2014. Allegedly they are only to serve as anti-missile defenses, though in our war zones they were used as massive surveillance platforms. As a taste of the sorts of surveillance systems the aerostats were equipped with abroad but the Army says they won’t have here at home, consider Gorgon Stare, a system that can transmit live images of an entire town.  And unlike drones, an aerostat never needs to land. Ever.


    Welcome Home, Soldier (Part II)

    And so to Bradley Manning.

    As the weaponry and technology of war came home, so did a new, increasingly Guantanamo-ized definition of justice. This is one thing the Manning case has made clear.

    As a start, Manning was treated no differently than America’s war-on-terror prisoners at Guantanamo and the black sites that the Bush administration set up around the world. Picked up on the “battlefield,” Manning was first kept incommunicado in a cage in Kuwait for two months with no access to a lawyer. Then, despite being an active duty member of the Army, he was handed over to the Marines, who also guard Guantanamo, to be held in a military prison in Quantico, Virginia.

    What followed were three years of cruel detainment, where, as might well have happened at Gitmo, Manning, kept in isolation, was deprived of clothing, communications, legal advice, and sleep. The sleep deprivation regime imposed on him certainly met any standard, other than Washington’s and possibly Pyongyang’s, for torture. In return for such abuse, even after a judge had formally ruled that he was subjected to excessively harsh treatment, Manning will only get a 112-day reduction in his eventual sentence.

    Eventually the Obama administration decided Manning was to be tried as a soldier before a military court. In the courtroom, itself inside a military facility that also houses NSA headquarters, there was a strikingly gulag-like atmosphere.  His trial was built around secret witnesses and secret evidence; severe restrictions were put on the press — the Army denied press passes to 270 of the 350 media organizations that applied; and there was a clear appearance of injustice. Among other things, the judge ruled against nearly every defense motion.

    During the months of the trial, the U.S. military refused to release official transcripts of the proceedings. Even a private courtroom sketch artist was barred from the room. Independent journalist and activist Alexa O’Brien then took it upon herself to attend the trial daily, defy the Army, and make an unofficial record of the proceedings by hand. Later in the trial, armed military police were stationed behind reporters listening to testimony. Above all, the feeling that Manning’s fate was predetermined could hardly be avoided. After all, President Obama, the former Constitutional law professor, essentially proclaimed him guilty back in 2011 and the Department of Defense didn’t hesitate to state more generally that “leaking is tantamount to aiding the enemies of the United States.”

    As at Guantanamo, rules of evidence reaching back to early English common law were turned upside down. In Manning’s case, he was convicted of espionage, even though the prosecution did not have to prove either his intent to help another government or that harm was caused; a civilian court had already paved the way for such a ruling in another whistleblower case. In addition, the government was allowed to label Manning a “traitor” and an “anarchist” in open court, though he was on trial for neither treason nor anarchy. His Army supervisor in the U.S. and Iraq was allowed to testify against him despite having made biased and homophobic statements about him in a movie built around portraying Manning as a sad, sexually-confused, attention-seeking young man mesmerized by WikiLeaks founder Julian Assange. Finally, the same judge who essentially harassed the press throughout Manning’s trial issued a 24-hour advance notice of her verdict to ensure maximum coverage only of the denouement, not the process.

    Given all this, it is small comfort to know that Manning, nailed on the Espionage Act after multiple failures in other cases by the Obama administration, was not convicted of the extreme charge of “aiding the enemy.”


    Not Manning Alone

    Someday, Manning’s case may be seen as a bitter landmark on the road to a post-Constitutional America, but it won’t be seen as the first case in the development of the post-Constitutional system. Immediately following 9/11, top officials in the Bush administration decided to “take the gloves off.” Soon after, a wounded John Walker Lindh, the so-called American Taliban, was captured on an Afghan battlefield, held in a windowless shipping container, refused access to a lawyer even after he demanded one as an American citizen, and interrogated against his will by the FBI. Access to medical care was used as a bribe to solicit information from him. “Evidence” obtained by such means was then used to convict him in court.

    Jose Padilla, a U.S. citizen who clumsily plotted to detonate a nonexistent “dirty bomb,” was held incommunicado for more three years, over a year of which was in a South Carolina military jail. He was arrested only as a material witness and was not formally charged with a crime until years later. He was given no means to challenge his detention under habeas corpus, as President Bush designated him an “enemy combatant.” Pictures of Padilla being moved wearing sound-proof and light-proof gear strongly suggest he was subjected to the same psychosis-inducing sensory deprivation used as “white torture” against America’s foreign enemies in Guantanamo.

    Certainly, the most egregious case of pre-Manning post-Constitutional justice was the execution of American citizen Anwar al-Awlaki by drone in Yemen, without due process or trial, for being an al-Qaeda propagandist. In this, President Obama and his top counterterrorism advisors quite literally took on the role of judge, jury, and executioner.  In a similar fashion, again in Yemen, the U.S. killed al-Awlaki’s American teenage son, a boy no one claimed was connected to terrorism. Obama administration lawyers went on to claim the legal right to execute U.S. citizens without trial or due process and have admitted to killing four Americans. Attorney General Eric Holder declared that “United States citizenship alone does not make such individuals immune from being targeted.”

    Then-FBI Director Robert Mueller, asked in a Congressional hearing if the FBI could assassinate an American citizen in the United States, replied that he simply did not know. “I have to go back. Uh, I’m not certain whether that was addressed or not.” He added, “I’m going to defer that to others in the Department of Justice.” As if competing for an Orwellian prize, an unnamed Obama administration official told the Washington Post, “What constitutes due process in this case is a due process in war.”


    Post-Constitutional America

    So welcome to post-Constitutional America. Its shape is, ominously enough, beginning to come into view.

    Orwell’s famed dystopian novel 1984 was not intended as an instruction manual, but just days before the Manning verdict, the Obama administration essentially buried its now-ironic-campaign promise to protect whistleblowers, sending it down Washington’s version of the memory hole. Post-9/11, torture famously stopped being torture if an American did it, and its users were not prosecutable by the Justice Department.

    Similarly, full-spectrum spying is not considered to violate the Fourth Amendment and does not even require probable cause. Low-level NSA analysts have desktop access to the private emails and phone calls of Americans. The Post Office photographs the envelopes of every one of the 160 billion pieces of mail it handles, collecting the metadata of “to:” and “from:” addresses. An Obama administration Insider Threat Program requires federal employees (including the Peace Corps) to report on the suspicious behavior of coworkers.

    Government officials concerned over possible wrongdoing in their departments or agencies who “go through proper channels” are fired or prosecuted. Government whistleblowers are commanded to return to face justice, while law-breakers in the service of the government are allowed to flee justice. CIA officers who destroy evidence of torture go free, while a CIA agent who blew the whistle on torture is locked up.

    Secret laws and secret courts can create secret law you can’t know about for “crimes” you don’t even know exist.  You can nonetheless be arrested for committing them. Thanks to the PATRIOT Act, citizens, even librarians, can be served by the FBI with a National Security Letter (not requiring a court order) demanding records and other information, and gagging them from revealing to anyone that such information has been demanded or such a letter delivered.  Citizens may be held without trial, and denied their Constitutional rights as soon as they are designated “terrorists.” Lawyers and habeas corpus are available only when the government allows.

    In the last decade, 10 times as many employers turned to FBI criminal databases to screen job applicants. The press is restricted when it comes to covering “open trials.” The war on whistleblowers is metastasizing into a war on the First Amendment. People may now be convicted based on secret testimony by unnamed persons. Military courts and jails can replace civilian ones. Justice can be twisted and tangled into an almost unrecognizable form and then used to send a young man to prison for decades. Claiming its actions lawful while shielding the “legal” opinions cited, often even from Congress, the government can send its drones to assassinate its own citizens.

    One by one, the tools and attitudes of the war on terror, of a world in which the “gloves” are eternally off, have come home. The comic strip character Pogo’s classic warning — “We have met the enemy and he is us” — seems ever less like a metaphor. According to the government, increasingly we are now indeed their enemy.




    This article also appeared on:

    The Nation http://www.thenation.com/article/175589/welcome-post-constitution-america

    Commondreams: http://www.commondreams.org/view/2013/08/05-3

    Salon.com: http://www.salon.com/2013/08/05/in_post_constitutional_america_we_are_all_the_governments_new_enemy_partner/

    Huffington Post: http://www.huffingtonpost.com/peter-van-buren/bradley-manning-trial_b_3707109.html

    Michael Moore: http://www.michaelmoore.com/words/mike-friends-blog/welcome-post-constitution-america-what-if-your-country-begins-change-and-no-one-notices

    Digg.com

    Asia Times: http://www.atimes.com/atimes/World/WOR-01-060813.html

    Mother Jones: http://www.motherjones.com/politics/2013/08/bradley-manning-constitutional-rights

    Le Monde Diplomatique (English): http://mondediplo.com/openpage/welcome-to-post-constitution-america

    ZNET: http://www.zcommunications.org/welcome-to-post-constitution-america-by-peter-van-buren

    Truthdig: http://www.truthdig.com/report/item/welcome_to_post-constitution_america_20130805/

    Counterinformation: https://counterinformation.wordpress.com/2013/08/05/welcome-to-post-constitution-america/

    Information Clearing House: http://www.informationclearinghouse.info/article35760.htm

    Nation of Change: http://www.nationofchange.org/welcome-post-constitution-america-1375712052

    Middle East online: http://www.middle-east-online.com/english/?id=60564

    al-Arab online: http://www.alarabonline.org/english/display.asp?fname=\2013\08\08-05\zopinionz\970.htm&dismode=x&ts=8/5/2013%2011:15:21%20AM

    Democratic Underground: http://www.democraticunderground.com/10023408050

    Outlook India: http://www.outlookindia.com/article.aspx?287286

    Smirking Chimp: http://smirkingchimp.com/thread/tom-engelhardt/50975/tomgram-peter-van-buren-the-manning-trial-began-on-9-11

    http://www.dailykos.com/story/2013/08/05/1228975/-Peter-Van-Buren-The-Manning-Trial-Began-on-9-11?detail=hide

    http://www.opednews.com/articles/Peter-Van-Buren-The-Manni-by-Tom-Engelhardt-130805-781.html

    Hillary Clinton Says Honduras Coup Not Illegal In Daily News Editorial Board Interview

    http://thegreenbelt.blogspot.com/2013/08/welcome-to-post-constitutional-america.html

    Welcome to Post-Constitution America

    http://www.blogotariat.com/node/1185276

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  • Naw, This is Nothing (Break-in at State Dept Whistleblower Lawyer)

    July 28, 2013 // 36 Comments

    Tags: , , ,
    Posted in: Democracy, Embassy/State




    This article originally appeared on the Huffington Post.

    I get a lot of conspiracy emails at my blog, wemeantwell.com. Various “truthers” want me to believe that the CIA or the Mossad or the Spiders from Mars did 9/11, and that Obama was born on the Planet Mongo and is thus not even human, never mind an American Citizen. C’mon folks, try it again, using “facts” this time.

    At the same time, I find myself worrying a bit. Stuff that fell into the conspiracy theory catalog last year now is old news: the government is indeed reading your email, your snail mail, your Facebook, all the while listening in on your calls. Torture and indefinite extra-judicial imprisonment are just another thing the government does. Whatever really happened to bin Laden will likely never be known, as the records were secretly moved into CIA hands where they will not be subject to Freedom of Information Act requests. Drones have been used in the U.S. Oh, and a secret court is making secret laws that affect all of us, in secret.


    So, given all that, this next item is probably nothing. Another coincidence.


    Two burglars broke into a Dallas law firm, bashing through a wall, and stealing only three computers while leaving other valuables behind. The law firm targeted represents State Department whistleblower Aurelia Fedenisn. Fedenisn revealed that she’d seen internal investigations called off by higher ups. The State Department accused her of removing “highly sensitive, internal documents” containing “personal information and unsubstantiated allegations,” and explained that it was working to secure the documents once again. The thieves also tried to pry open a filing cabinet at the lawyer’s office. Coincidence.

    An office across the hallway from the whistleblower’s lawyers that was left unlocked and was full of valuables, as well as fourteen other computers, was untouched by the thieves. Coincidence.

    Not too long ago, a thief entered the offices of the Government Accountability Project, one of America’s premier whistleblower representatives, and stole only some attorney laptops. Nothing else, not even purses left out. The theft occurred just as the government’s case against NSA whistleblower Tom Drake was collapsing. His attorneys’ computers were taken. Coincidence.

    In 1971 John Ehrlichman, assistant to president Nixon, approved a covert operation to break into Pentagon Papers whistleblower Daniel Ellsberg’s psychiatrist’s office and examine his medical files. The purpose was to get a “mother lode” of information about Ellsberg’s mental state to use to discredit him.

    Naw, I think I’ve just seen to many spy dramas on TV lately. I mean, who could think that the government would be involved in anything like breaking into a law office in search of info on one of its whistleblower critics?

    Also coincidences: Death of Andrew Breitbart, the coroner who handled Breitbart’s case and died of arsenic poisoning, and Michael Hastings, where the LAPD refuses to release the accident and toxicology reports, or make the crashed Mercedes available for inspection. Nothing to see here you proles, go about your business.




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  • Edward Snowden’s Long Flight: What a Whistleblower Thinks a Fellow Whistleblower Might Have Thought

    July 19, 2013 // 15 Comments

    Tags: , ,
    Posted in: Democracy

    What a Whistleblower Thinks a Fellow Whistleblower Might Have Thought

    This article originally appeared on Huffington Post.

    As a State Department whistleblower, I think a lot about Edward Snowden. I can’t help myself. My friendships with other whistleblowers like Tom Drake, Jesslyn Radack, Daniel Ellsberg, and John Kiriakou lead me to believe that, however different we may be as individuals, our acts have given us much in common. I suspect that includes Snowden, though I’ve never had the slightest contact with him. Still, as he took his long flight from Hong Kong into the unknown, I couldn’t help feeling that he was thinking some of my thoughts, or I his. Here are five things that I imagine were on his mind (they would have been on mine) as that plane took off.

    I Am Afraid

    Whistleblowers act on conscience because they encounter something so horrifying, unconstitutional, wasteful, fraudulent, or mismanaged that they are overcome by the need to speak out. There is always a calculus of pain and gain (for others, if not oneself), but first thoughts are about what you’ve uncovered, the information you feel compelled to bring into the light, rather than your own circumstances.

    In my case, I was ignorant of what would happen once I blew the whistle. I didn’t expect the Department of State to attack me. Snowden was different in this. He had the example of Bradley Manning and others to learn from. He clearly never doubted that the full weight of the U.S. government would fall on him.

    He knew what to fear. He knew the Obama administration was determined to make any whistleblower pay, likely via yet another prosecution under the Espionage Act (with the potential for the death penalty). He also knew what his government had done since 9/11 without compunction: it had tortured and abused people to crush them; it had forced those it considered enemies into years of indefinite imprisonment, creating isolation cells for suspected terrorists and even a pre-trial whistleblower. It had murdered Americans without due process, and then, of course, there were the extraordinary renditions in which U.S. agents kidnapped perceived enemies and delivered them into the archipelago of post-9/11 horrors.

    Sooner or later, if you’re a whistleblower, you get scared. It’s only human. On that flight, I imagine that Edward Snowden, for all his youthful confidence and bravado, was afraid. Would the Russians turn him over to Washington as part of some secret deal, maybe the sort of spy-for-spy trade that would harken back to the Cold War era?

    Even if he made it out of Moscow, he couldn’t have doubted that the full resources of the NSA and other parts of the U.S. government would be turned on him. How many CIA case officers and Joint Special Operations Command types did the U.S. have undercover in Ecuador? After all, the dirty tricks had already started. The partner of Guardian journalist Glenn Greenwald, who broke Snowden’s story, had his laptop stolen from their residence in Brazil.  This happened only after Greenwald told him via Skype that he would send him an encrypted copy of Snowden’s documents. 

    In such moments, you try to push back the sense of paranoia that creeps into your mind when you realize that you are being monitored, followed, watched. It’s uncomfortable, scary. You have to wonder what your fate will be once the media grows bored with your story, or when whatever government has given you asylum changes its stance vis-a-vis the U.S. When the knock comes at the door, who will protect you? So who can doubt that fear made the journey with him?

    Could I Go Back to the U.S.?

    Amnesty International was on target when it stated that Snowden “could be at risk of ill-treatment if extradited to the U.S.” As if to prove them right, months, if not years, before any trial, Speaker of the House John Boehner called Snowden a “traitor”; Congressman Peter King called him a “defector”; and others were already demanding his execution. If that wasn’t enough, the abuse Bradley Manning suffered had already convinced Snowden that a fair trial and humane treatment were impossible dreams for a whistleblower of his sort. (He specifically cited Manning in his appeal for asylum to Ecuador.)

    So on that flight he knew — as he had long known — that the natural desire to go back to the U.S. and make a stand was beyond foolhardy. Yet the urge to return to the country he loves must have been traveling with him, too. Perhaps on that flight he found himself grimly amused that, after years of running roughshod over international standards — Abu Ghraib, Guantanamo, “enhanced interrogation techniques,” “black sites” — the U.S. had the nerve to chide Hong Kong, China, and Russia for not following the rule of law. He certainly knew that his own revelations about massive NSA cyber-spying on Hong Kong and China had deeply embarrassed the Obama administration. It had, after all, been blistering the Chinese for hacking into U.S. military and corporate computers. He himself had ensured that the Chinese wouldn’t turn him over, in the same way that history — decades of U.S. bullying in Latin America — ensured that he had a shot at a future in someplace like in Ecuador.

    If he knew his extradition history, Snowden might also have thought about another time when Washington squirmed as a man it wanted left a friendly country for asylum. In 2004, the U.S. had chess great Bobby Fischer detained in Japan on charges that he had attended a 1992 match in Yugoslavia in violation of a U.S. trade ban. Others suggested that the real reason Washington was after him may have been Fischer’s post 9/11 statement: “It’s time to finish off the U.S. once and for all. This just shows what comes around, goes around.”

    Fischer’s American passport was revoked just like Snowden’s. In the fashion of Hong Kong more recently, the Japanese released Fischer on an immigration technicality, and he flew to Iceland where he was granted citizenship. I was a diplomat in Japan at the time, and had a ringside seat for the negotiations. They must have paralleled what went on in Hong Kong: the appeals to treaty and international law; U.S. diplomats sounding like so many disappointed parents scolding a child; the pale hopes expressed for future good relations; the search for a sympathetic ear among local law enforcement agencies, immigration, and the foreign ministry — anybody, in fact — and finally, the desperate attempt to call in personal favors to buy more time for whatever Plan B might be. As with Snowden, in the end the U.S. stood by helplessly as its prey flew off.

    How Will I Live Now?

    At some point every whistleblower realizes his life will never be the same. For me, that meant losing my job of 24 years at the State Department. For Tom Drake, it meant financial ruin as the government tried to bankrupt him through endless litigation. For CIA agent John Kiriakou, it might have been the moment when, convicted of disclosing classified information to journalists, he said goodbye to his family and walked into Loretto Federal Correctional Institution.

    Snowden could not have avoided anxiety about the future. Wherever he ended up, how would he live? What work would he do? He’s just turned 30 and faces, at best, a lifetime in some foreign country he’s never seen where he might not know the language or much of anything else.

    So fear again, in a slightly different form. It never leaves you, not when you take on the world’s most powerful government. Would he ever see his family and friends again? Would they disown him, fearful of retaliation or affected by the smear campaign against him? Would his parents/best friend/girlfriend come to believe he was a traitor, a defector, a dangerous man? All whistleblowers find their personal relationships strained. Marriages are tested or broken, friends lost, children teased or bullied at school. I know from my own whistleblower’s journey that it’s an ugly penalty — encouraged by a government scorned — for acting on conscience.

    If he had a deeper sense of history, Snowden might have found humor in the way the Obama administration chose to revoke his passport just before he left Hong Kong. After all, in the Cold War years, it was the “evil empire,” the Soviet Union, which was notorious for refusing to grant dissidents passports, while the U.S. regularly waived such requirements when they escaped to the West.

    To deepen the irony of the moment, perhaps he was able to Google up the 2009-2011 figures on U.S. grants of asylum: 1,222 Russians, 9,493 Chinese, and 22 Ecuadorians, not including family members. Maybe he learned that, despite the tantrums U.S. officials threw regarding the international obligation of Russia to extradite him, the U.S. has recently refused Russian requests to extradite two of its citizens.

    Snowden might have mused over then-candidate Obama’s explicit pledge to protect whistleblowers. “Often the best source of information about waste, fraud, and abuse in government,” Obama then said, “is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism… should be encouraged rather than stifled as they have been during the Bush administration.” It might have been Snowden’s only laugh of the flight.

    I Don’t Hate the U.S., I Love It Deeply, But Believe It Has Strayed

    On that flight, Snowden took his love of America with him. It’s what all of us whistleblowers share: a love of country, if not necessarily its government, its military, or its intelligence services. We care what happens to us the people. That may have been his anchor on his unsettling journey. It would have been mine.

    Remember, if we were working in the government in the first place, like every federal employee, soldier, and many government contractors, we had taken an oath that stated: “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” We didn’t pledge fealty to the government or a president or party, only — as the Constitution makes clear — to the ultimate source of legitimacy in our nation, “the people.”

    In an interview, Snowden indicated that he held off on making his disclosures for some time, in hopes that Barack Obama might look into the abyss and decide to become the bravest president in our history by reversing the country’s course. Only when Obama’s courage or intelligence failed was it time to become a whistleblower.

    Some pundits claim that Snowden deserves nothing, because he didn’t go through “proper channels.” They couldn’t be more wrong and Snowden knows it. As with many of us whistleblowers facing a government acting in opposition to the Constitution, Snowden went through the channels that matter most: he used a free press to speak directly to his real boss, the American people.

    In that sense, whatever the fear and anxiety about his life and his future, he must have felt easy with his actions. He had not betrayed his country, he had sought to inform it.

    As with Bradley Manning, Obama administration officials are now claiming that Snowden has blood on his hands. Typically, Secretary of State John Kerry claimed: “People may die as a consequence to what this man did. It is possible that the United States would be attacked because terrorists may now know how to protect themselves in some way or another that they didn’t know before.” Snowden had heard the same slurs circling around Bradley Manning: that he had put people in danger. After the wars in Iraq and Afghanistan, not to speak of the war on terror, there is irony too obvious to dwell upon in such charges.

    Flying into the unknown, Snowden had to feel secure in having risked everything to show Americans how their government and the NSA bend or break laws to collect information on us in direct conflict with the Fourth Amendment’s protections. Amnesty International pointed out that blood-on-hands wasn’t at issue. “It appears he is being charged primarily for revealing U.S. and other governments’ unlawful actions that violate human rights.” Those whispers of support are something to take into the dark with you.

    I Believe in Things Bigger Than Myself

    Some of the charges against Snowden would make anyone pause: that, for instance, he did what he did for the thrill of publicity, out of narcissism, or for his own selfish reasons. To any of the members of the post-9/11 club of whistleblowers, the idea that we acted primarily for our own benefit has a theater of the absurd quality to it. Having been there, the negative sentiments expressed do not read or ring true.

    Snowden himself laughed off the notion that he had acted for his own benefit. If he had wanted money, any number of foreign governments would have paid handsomely for the information he handed out to journalists for free and he would never have had to embark on that plane flight from Hong Kong. (No one ever called Aldrich Ames a whistleblower.) If he wanted fame, there were potential book contracts and film deals to be had.

    No, it was conscience. I wouldn’t be surprised if somewhere along the line Snowden had read the Declaration of the Nuremberg War Crimes Tribunal: “Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.”

    Edward Snowden undoubtedly took comfort knowing that a growing group of Americans are outraged enough to resist a government turning against its own people. His thoughts were mirrored by Julian Assange, who said, “In the Obama administration’s attempt to crush these young whistleblowers with espionage charges, the U.S. government is taking on a generation, a young generation of people who find the mass violation of the rights of privacy and open process unacceptable. In taking on the generation, the Obama administration can only lose.” Snowden surely hoped President Obama would ask himself why he has pursued more than double the number of Espionage Act cases of all his presidential predecessors combined, and why almost all of those prosecutions failed.

    On that flight, Edward Snowden must have reflected on what he had lost, including the high salary, the sweet life in Hawaii and Switzerland, the personal relationships, and the excitement of being on the inside, as well as the coolness of knowing tomorrow’s news today.  He has already lost much that matters in an individual life, but not everything that matters. Sometimes — and any whistleblower comes to know this in a deep way — you have to believe that something other, more, deeper, better than yourself matters.  You have to believe that one courageous act of conscience might make a difference in an America gone astray or simply that, matter or not, you did the right thing for your country.




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  • Who Guards the Guards?

    June 12, 2013 // 39 Comments

    Tags: , , , ,
    Posted in: Embassy/State, Iraq



    America’s spies– our bad guys who sold secrets to other countries, Ames, the Walkers, Pollard— worked for money. Their motives were straightforward and they clearly, actively sought to trade secrets away for personal gain. They choose secrets such as code ciphers of specific interest and value to the enemy.

    But what about now? The people Obama is/has/will be prosecuting under the Espionage Act (Manning, Drake, Snowden) did not act for money (quite the contrary; all suffered personally for their actions) and instead of informing a foreign power, they sought to inform the American people. That is not spying.

    Our current whistleblowers were all vetted multiple times by the U.S. Government. If Snowden’s publically available bio is true, he was vetted by the Army, the CIA, the NSA and again as an NSA contractor. What happened?

    What happened was conscience, and God bless us all for it.

    History recognizes the need to act on conscience when faced with unconscionable situations. Dietrich Bonhoeffer, writing about Kristallnacht, said “Silence in the face of evil is itself evil: God will not hold us guiltless. Not to speak is to speak. Not to act is to act.” The Nuremberg prosecutors reminded the accused that “Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.” Dr. Martin Luther King, writing from a Birmingham jail cell, said “One may well ask: ‘How can you advocate breaking some laws and obeying others?’ The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all.'”

    Bradley Manning provided no real aid and comfort to the enemy. Among other horrific events, he exposed what was a war crime to everyone but the U.S. Government as civilians and journalists were machine gunned from the air. He exposed U.S. murder of Iraqi civilians. He shared with the American people exactly what was being done in their name. None of that information was secret for any legitimate reason (it was kept quiet to protect the USG from embarrassment and/or prosecution), and it certainly was not secret to the “enemy;” they knew damn well what we were doing.

    The case is the same with Snowden. He simply told the American people, in much greater detail than the Government wished to reveal, what their own government was doing to them. The NSA spying focused on Americans, and even as the government seeks to justify it the case weakens around them. Indeed, all that surveillance failed to even catch Snowden gathering documents from the inside but we’re supposed to believe it has saved us from terrorism? Once again, the people most informed by the leaked material were the American people, not any imagined generic “enemy.” Indeed, most of the enemy comes from police-state countries where surveillance (and torture, another recent U.S. activity) is routine and overt. They knew damn well what we were doing. Bin Laden stopped using cell phones a decade ago.

    If I could shout into the White House, it would be something like this:

    Your own guards are turning against your surveillance and secrecy. People whom you vetted are being moved into glorious, selfless democratic acts of conscience by your lies and your actions. If the government continues to treat every citizen as a potential terrorist, more and more of them will be moved to act, to uphold their true oath of office— to uphold and protect the Constitution from all enemies, foreign and domestic.

    Are you not aware Mr. Obama that one whistleblower, Assange, is living in a foreign embassy for his own protection from you, while another, Snowden, is said to be headed for asylum somewhere abroad for his own safety? During the Cold War and onward, it was American Embassies abroad that provided shelter and asylum to political victims. You can expect more leakers, and by focusing your response on arresting the messengers instead of changing your policies, you will in fact assure it as your legacy.



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  • How to Respond to Your Friends Who Think the NSA Surveillance is No Big Deal

    June 10, 2013 // 35 Comments

    Tags: , , , ,
    Posted in: Democracy




    This piece originally appeared on the Huffington Post.

    NSA surveillance is legal.

    True, as was slavery in the U.S., the Holocaust under Nazi Germany, Apartheid in South Africa and so forth. Laws mean very little when they are manipulated for evil.



    I’m not doing anything wrong, so why should I care? If you’re doing nothing wrong, then you’ve got nothing to hide!

    See above. The definition of “wrong” can change very quickly.


    I trust Obama on this.

    All of your personal data is in the hands of the same people that run the TSA, the IRS and likely the DMV. Do you trust all of them all the time to never make mistakes or act on personal grudges or political biases? Do you believe none of them would ever sell your data for personal profit ever? In fact, the NSA is already sharing your data with, at minimum, British intelligence. That’s a foreign government that your American government is informing on you to, FYI. Also, the alleged leaker, Edward Snowden, worked for a private contracting company and had access to your data.



    I really trust Obama on this.

    OK, let’s stipulate that Obama will never do anything bad with the data. But once collected, your personal data exists forever, and is available to whomever in the future can access it, using whatever technologies come to exist. Trusting anyone with such power is foolish.


    Well, there are checks and balances in the system to protect us.

    See above. Also, the king of all checks and balances in this case, the Fourth Amendment, has been treated by the government like a used Kleenex. As for the Foreign Intelligence and Surveillance Court (FISA), set up to review government requests for wiretapping, it approved all 1,789 requests submitted to it in 2012. The FBI made 15,229 National Security Letter requests in 2012 on Americans. None of those even require FISA rubber-stamping. And here’s DOJ trying to keep classified a court ruling that says it might have acted unconstitutionally.

    More importantly, if all the NSA’s activities are legal, why not allow them to be tested openly and unambiguously in public, in front of the Supreme Court. After all, if you’ve done nothing wrong there is nothing to hide. Unfortunately, when Amnesty International tried to bring such a case before the Court, the case was denied because Amnesty could not prove it was subject to monitoring– that was a secret!– and thus was denied standing to even bring the suit.

    Many people believe the surveillance violates both the Fourth Amendment protections against search, and the First Amendment protections on the right to peaceably assemble, online in this instance.



    There are 300 million Americans, producing a gazillion emails and Skype chats and Instagrams every day. Nobody cares about my boring stuff.

    Mining all that data is just a matter of how many computers are devoted to the task today, and using better technology in the future will make it even easier.

    But the TV says they collect only “Metadata” so I’m safe.

    Metadata is the index to all the content NSA is already sweeping up. NSA is able to record say 24 hours worth of Verizon phone calls easy enough. With the Metadata, they can then easily locate any particular call within that huge chunk of otherwise streaming data. Metadata can also provide geolocation information to track your physical movements, among other things. It is very important.



    Distasteful as this all is, it is necessary to keep us safe. It’s for our own good.

    The United States, upholding to our beautiful Bill of Rights, has survived (albeit on a sometimes bumpy road) two world wars, the Cold War and innumerable challenges without a massive, all-inclusive destruction of our civil rights. Keep in mind that the Founders created the Bill of Rights, point-by-point, specifically to address the abuses of power (look up the never-heard-from-again Third Amendment) they experienced under an oppressive British government. A bunch of angry jihadis, real and imagined, seems a poor reason to change that system. Prior to 9/11 we did not have a mass-scale terror act (by foreigners; American Citizen Timothy McVeigh pulled one off.) Since 9/11 we have not had a mass-scale terror attack. We can say 9/11 was a one-off, an aberration, and cannot be a justification for everything the government wishes to do. There is also the question of why, if the NSA is vacuuming up everything, and even sharing that collection abroad, this all needs to be kept secret from the American people. If it is for our own good, the government should be proud to tell us what they are doing for us, instead of being embarrassed when it leaks. If you’re not doing anything wrong then you’ve got nothing to hide, right?


    Terrorist are everywhere.

    Doubtful. No suicide bombers in shopping malls, no hijackings. How many Americans have died in the past twelve years due to terrorism in the U.S.? At the same time, despite all this intrusion into our lives and violations of the Fourth Amendment, the system completely missed the Boston bombers, two of the dumbest, least sophisticated bro’ terrorists in the world. Those two practiced no tradecraft at all. Maybe all this surveillance isn’t really about stopping terrorists and is more about generic spying on us all, using a fake argument of 100% security at the cost of 0% privacy? At the same time, we do have a problem with gun nuts committing mass shootings that have mowed down Americans in numbers far beyond terrorism since 9/11, but no one seems concerned about using tech to stop that. So much has been justified (torture, spying) by the so-called ticking time bomb scenario but there has never been shown an actual ticking time bomb scenario in real life.


    Protecting America comes first.

    But protecting what from what is the question. If instead of spending trillions and trillions of dollars on spying and domestic surveillance we spent that same money on repairing our infrastructure and improving our schools, wouldn’t that more directly create a stronger America?


    I just don’t care.

    Fine, enjoy your television. Just don’t be surprised when you’re woken from your deep sleep one night by a knock on the door.

    BONUS: If you’re Edward Snowden, the alleged leaker, and you have some interest in not spending the rest of your life in a U.S. supermax prison, why oh why are you in Hong Kong? Hong Kong has an active extradition agreement with the U.S. Why are you not in Ecuador, Beijing, or maybe Iceland?

    Snowden has the guts to do what the government does not have the guts to do: bring the NSA’s activities into daylight, for all to see. As a whistleblower myself, and meeting many others from Ellsberg to Drake, I know it takes enormous courage to do what Snowden did, and the willingness to give up everything– life, freedom, everything– for a good bigger than yourself. If that is not a definition of patriotism nothing else can be.

    BONUS BONUS: My interview with Agency France Press on Snowden and whistleblowing.




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  • Dinner and a Speech with Daniel Ellsberg

    June 3, 2013 // 21 Comments

    Tags: , , , ,
    Posted in: Democracy

    It was one of my great pleasures to have dinner with Daniel Ellsberg (and several others supporting justice for Bradley Manning) this week.

    Ellsberg is the prototypical whistleblower, a former Marine and serious government official supporting the government’s way until something– in Ellsberg’s case, learning the truth about U.S. conduct in the Vietnam War– so shocked his conscience that he was compelled to speak out. In Ellsberg’s case, that resulted in the “Pentagon Papers” and the landmark legal decisions defending the right of the New York Times to publish them. That those same legal rights are now under attack by the Obama Administration, and likely to figure significantly in the Manning case, just emphasized the importance of what Ellsberg risked his freedom to do.

    I wrote an open letter to Dan, tracing a small part of my own political awakening to his brave actions. Maybe worth a read.

    In person Dan proved to still be an amazing intellect at age 82. Though his hearing has faded, his mind is razor. Talking politics with him, from Lyndon Johnson to Bradley Manning, was like playing chess against Fischer, discussing writing with Steinbeck or shooting pool against Fats.

    Dan also possesses an amazing stock of jokes, some a bit naughty, which he tells with some skill. One involved a leprechaun (you had to be there) and Ellsberg slipped in and out of an Irish accent as effortlessly as he skewed Richard Nixon moments earlier.

    The next night I joined Ellsberg, Jesselyn Radack, Michael Ratner, Tom Drake, Ethan McCord and others at the Unitarian All Souls Church in Washington DC to speak out for justice for whistleblower Bradley Manning. Manning’s trial, after his three years of confinement, finally begins June 3. The speeches were followed by interviews with the BBC Radio World Service. The American media, who certainly profited from Manning’s whistleblowing, skipped the event.

    Sorry to brag a bit, but losing one’s job at the State Department isn’t all bad when you get opportunities like this.




    Video of the support Manning speeches.




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  • Homeland Insecurity: Robert MacLean and TSA

    June 1, 2013 // 15 Comments

    Tags: , , , ,
    Posted in: Democracy

    Cross-posted with TomDispatch.com

    What do words mean in a post-9/11 world? Apart from the now clichéd Orwellian twists that turn brutal torture into mere enhanced interrogation, the devil is in the details. Robert MacLean is a former air marshal fired for an act of whistleblowing.  He has continued to fight over seven long years for what once would have passed as simple justice: getting his job back. His is an all-too-twenty-first-century story of the extraordinary lengths to which the U.S. government is willing to go to thwart whistleblowers.

    First, the government retroactively classified a previously unclassified text message to justify firing MacLean. Then it invoked arcane civil service procedures, including an “interlocutory appeal” to thwart him and, in the process, enjoyed the approval of various courts and bureaucratic boards apparently willing to stamp as “legal” anything the government could make up in its own interest.

    And yet here’s the miracle at the heart of this tale: MacLean refused to quit, when ordinary mortals would have thrown in the towel.  Now, with a recent semi-victory, he may not only have given himself a shot at getting his old job back, but also create a precedent for future federal whistleblowers. In the post-9/11 world, people like Robert MacLean show us how deep the Washington rabbit hole really goes.


    The Whistle Is Blown

    MacLean joined the Federal Air Marshal Service (FAMS) in 2001 after stints with the Air Force and the Border Patrol. In July 2003, all marshals received a briefing about a possible hijacking plot. Soon after, the Transportation Safety Administration (TSA), which oversees FAMS, sent an unencrypted, open-air text message to the cell phones of the marshals cancelling several months of missions for cost-cutting reasons. MacLean became concerned that cancelling missions during a hijacking alert might create a dangerous situation for the flying public. He complained to his supervisor and to the Department of Homeland Security’s inspector general, but each responded that nothing could be done.

    It was then that he decided to blow the whistle, hoping that public pressure might force the TSA to reinstate the marshals’ flights. So MacLean talked to a reporter, who broadcast a story criticizing the TSA’s decision and, after 11 members of Congress joined in the criticism, it reversed itself. At this point, MacLean had not been identified as the source of the leak and so carried on with his job.

    A year later, he appeared on TV in disguise, criticizing the TSA dress code and its special boarding policies, which he believed allowed marshals to be easily identified by other passengers. This time, the TSA recognized his voice and began an investigation that revealed he had also released the 2003 text message. He was fired in April 2006. Although the agency had not labeled that message as “sensitive security information” (SSI) when it was sent in 2003, in August 2006, months after MacLean’s firing, it issued a retroactive order stating that the text’s content was indeed SSI.


    A Whistleblower’s Catch-22

    That disclosing the contents of an unclassified message could get someone fired for disclosing classified information is the sort of topsy-turvy situation which could only exist in the post-9/11 world of the American national security state.

    Under the 1989 Whistleblower Protection Act (WPA), a disclosure prohibited by law negates whistleblower protections. That, of course, makes it in the government’s interest to define disclosure as broadly as possible and to classify as much of its internal communications for as long as it possibly can. No wonder that in recent years the classification of government documents has soared, reaching a record total of 92,064,862 in 2011.

    Officially, the U.S. government recognizes only three basic levels of classification: confidential, secret, and top secret. Since 9/11, however, various government agencies have created multiple freestyle categories of secrecy like “SSI,” “Law Enforcement Sensitive,” “Sensitive But Unclassified,” and the more colorful “Eyes Only.”  All of these are outside the normal codification system; all are hybrids that casually seek to incorporate the full weight of the formal law. There are currently 107 designations just for “sensitive” information. In addition to those labels, there exist more than 130 sets of extra “handling requirements” that only deepen the world of government secrecy.

    At issue for MacLean was not only the retroactive classification of a text message already in the public domain, but what classified could possibly mean in an era when everything related to the national security state was slipping into the shadows. Such questions are hardly semantic or academic. MacLean’s case hinges on how they are answered.

    The case against Army Private Bradley Manning and WikiLeaks is, for example, intimately tied up in them. The military hides behind classification to block access to Manning’s “public” trial. With WikiLeaks, despite more than 100,000 U.S. State Department diplomatic cables being available to anyone anywhere on the web, the government continues to insist that they remain “classified” and cannot even be rereleased in response to requests. Potential federal employees were warned to stay away from the cables online, and the State Department even blocked TomDispatch from its staff to shield them from alleged WikiLeaks content (some of which was linked to and discussed, but none of which was actually posted at the site).

    With author Tony Shaffer, the government retroactively classified its own account of why he was given the Bronze Star and his standard deployment orders to Afghanistan after he published an uncomplimentary book about American actions there. The messy case of alleged “hacktivist” Barrett Brown includes prosecution for “disclosing” classified material simply by linking to it at places where it had already been posted online; and, while still at the State Department, I was once accused of the same thing by the government.

    In MacLean’s case, over a period of seven years, the legality of the TSA firing him for using an only-later-classified text was upheld. Legal actions included hearings before administrative judges, the Merit Systems Protections Board twice, that interlocutory appeal, and the U.S. Court of Appeals for the Ninth Circuit. The sum of these decisions amid a labyrinth of judicial bureaucracies demands the use of the term Kafkaesque.  MacLean, so the general judgment went, should have known that the text message he planned to leak was a classified document, even when it wasn’t (yet). As a result, he should also have understood that his act would not be that of a whistleblower alerting the public to possible danger, but of a criminal risking public safety by exposing government secrets. If that isn’t the definition of a whistleblower’s catch-22, what is?

    What such a twisted interpretation by the various courts, boards, and bodies meant was chillingly laid out in an amicus brief on behalf of MacLean filed by the United States Office of Special Counsel (a small, lonely U.S. government entity charged with protecting whistleblowers):

    “Whistleblowers should not have to guess whether information that they reasonably believe evidences waste, fraud, abuse, illegalities or public dangers might be later designated as SSI [unclassified sensitive security information] and therefore should not be disclosed. Rather than making the wrong guess, a would-be whistleblower will likely choose to remain silent to avoid risking the individual’s employment.”


    Seven Years Later…

    In 2011, five years after he had been fired as an air marshal, MacLean’s case finally reached the United States Court of Appeals for the Federal Circuit. Two full years after that, in April 2013, the court handed down a decision that may yet provide justice for Robert MacLean — and for future whistleblowers. While awkwardly upholding previous decisions that the government can indeed retroactively classify information, even documents in categories like SSI that exist outside the government’s official framework for classification and secrecy, the court tackled a more basic question: Was Robert MacLean a whistleblower anyway, entitled to protection for his act of conscience?

    Here lies the conflict at the heart of just about every whistleblower case — between the public’s right (and need) to know and the (at times legitimate) need for secrecy. The government typically argues that individuals should not be allowed to decide for themselves what remains secret and what doesn’t, or chaos would result. At the same time, in a post-9/11 world of increasing secrecy, the loss of the right to know, and the massive over-classification of documents, the “conflict” has become ever more one-sided. If everything can be considered a classified secret document too precious for Americans to know about, and nothing classified can be disclosed, then the summary effect is that nothing inside the government can ever be shown to the public.

    The court found that while the Transportation Safety Administration could legally apply any classification it wanted to information any time it wanted, even retroactively, simply slapping on such a label did not necessarily prohibit disclosure. Absent an actual law in MacLean’s case mentioning SSI, a term created bureaucratically, not congressionally, there could be no Whistleblower Protection Act-excepting prohibition. In other words, MacLean could still be a whistleblower.

    One of MacLean’s lawyers, Tom Devine, told me the decision “restored enforceability for the Whistleblower Protection Act’s public free speech rights. It ruled that only Congress has the authority to remove whistleblower rights. Agency-imposed restraints are not relevant for WPA rights.”

    “With this precedential decision,” MacLean explained to me, “agencies can no longer cancel out Whistleblower Protection Act rights with their semi-secret markings like SSI, Law Enforcement Sensitive, etcetera.”

    In a concurring opinion, United States Court of Appeals for the Federal Circuit Judge Evan Wallach was even clearer: “Mr. MacLean presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public… I concur to emphasize that the facts alleged, if proven, allege conduct at the core of the Whistleblower Protection Act.”

    MacLean’s case now returns to the Merit Systems Protection Board. The board is a complex piece of bureaucracy inside the already complicated federal government personnel system. In simple terms, it is supposed to be a place to appeal personnel actions, such as alleged unfair hirings and firings. It thus serves as a kind of watchdog over the sprawling federal human resources empire. The Board now has the court-ordered specific charge to “determine whether Mr. MacLean’s disclosure qualifies for WPA protection.”

    Note as well that this case could continue without end for years more, traveling on “appeal” back through the federal judicial bureaucracy and the courts. And remember that this, too, is an advantage to a government that wants ever less known about itself. If, as a federal employee, you are watching a case like MacLean’s (or Thomas Drake’s, or Franz Gayle’s, or Morris Davis’s, or John Kiriakou’s, or even my own small version of this), then you can’t help noticing that the act of whistleblowing could leave you: a) out on your ear; b) prosecuted for a criminal act and/or c) with your life embroiled for years in the intricacies of your own never-ending case. None of this is exactly an encouragement to federal employees to blow that whistle.


    Whistleblowers and Secrecy

    Threats to whistleblowers abound, so any positive step, however minimalist or reversible, is important. Entering the White House pledging to head the most transparent administration in history, Barack Obama has, in fact, gone after more national security whistleblowers, often using the draconian Espionage Act, than all previous administrations combined.

    His Justice Department has repeatedly tried to prosecute whistleblowers, crudely lumping them in with actual spies and claiming they endanger Americans (and sometimes “the troops”) by their actions. In addition, through the ongoing case of Berry v. Conyers, Obama has sought to expand the definition of “national security worker” to potentially include thousands of additional federal employees. Many employees who occupy truly sensitive jobs in the intelligence community (for example, real-world spies at the CIA) are exempt from being granted whistleblower status. They also cannot appeal to the Merit Systems Protection Board if fired. By seeking to expand that exemption to a significantly larger group of people who may work at some federal agency, but in non-sensitive positions, Obama is also functionally moving to shrink the pool of potential whistleblowers. In Berry v. Conyers, for example, the persons Obama seeks to exempt as occupying sensitive jobs are merely an accounting technician and a commissary worker at an Air Force base. Neither of them even hold security clearances.

    What happens with MacLean’s case potentially affects every future whistleblower. If the mere presence of a pseudo-classification on an item, even applied retroactively, negates whistleblower protections, it means dark days ahead for the right of the citizenry to know what the government is doing (or how it’s misbehaving) in its name. If so, no act of whistleblowing could be considered protected, since all the government would have to do to unprotect it is classify whatever was disclosed retroactively and wash its hands of the miscreant. Federal employees, not a risk-taking bunch to begin with, will react accordingly.

    This is what gives MacLean’s case special meaning. While the initial decision on his fate will occur in the bowels of the somewhat obscure Merit Systems Protections Board, it will set a precedent that will surely find its way into higher courts on more significant cases. Amid a lot of technical legal issues, it all boils down to something very simple: Should whistleblower protections favor the conscience of a concerned federal employee willing to risk his job and the freedom to inform the public, or should they dissolve in the face of an unseen bureaucrat’s (retroactive) pseudo-classification decision?

    Procedurally, there are many options ahead for MacLean’s case, and the government will undoubtedly contest each tiny step. Whatever happens will happen slowly. This is exactly how the government has continually done its dirty work post-9/11, throwing monkey wrenches in the gears of the legal system, twisting words, and manipulating organizations designed to deliver justice in order to deny it.

    MacLean smiles at this. “I did seven years so far.  I can do seven more if they want. There’s too much at stake to just give up.”




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