• You Want to Commit Espionage with Hacked Personnel Data?

    June 15, 2015 // 16 Comments

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    Posted in: Embassy/State, Military, NSA

    obama-nsa



    Did the most-recent, recent, breach of United States government personnel files significantly compromise American security? Yes. Could a foreign government make use of such information to spy on the United States? Oh my, yes.

    China-based hackers are suspected of breaking into the computer networks of the United States Office of Personnel Management (OPM), the human resources department for the entire federal government. They allegedly stole personnel and security clearance information for at least four million federal workers. The current attack was not the first. Last summer the same office announced an intrusion in which hackers targeted the files of tens of thousands of those who had applied for top-secret security clearances; the Office of Personnel Management conducts more than 90 percent of federal background investigations, including all those needed by the Department of Defense and 100 other federal agencies.

    Why all that information on federal employees is a gold mine on steroids for a foreign intelligence service is directly related to what is in the file of someone with a security clearance.

    Most everyone seeking a clearance starts by completing Standard Form 86, Questionnaire for National Security Positions, form SF-86, an extensive biographical and social contact questionnaire.

    Investigators, armed with the questionnaire info and whatever data government records searches uncover, then conduct field interviews. The investigator will visit an applicant’s home town, her second-to-last-boss, her neighbors, her parents and almost certainly the local police force and ask questions in person. As part of the clearance process, an applicant will sign the Mother of All Waivers, giving the government permission to do all this as intrusively as the government cares to do; the feds really want to get to know a potential employee who will hold the government’s secrets. This is old fashioned shoe-leather cop work, knocking on doors, eye balling people who say they knew the applicant, turning the skepticism meter up to 11.

    Things like an old college roommate who moved back home to Tehran, or that weird uncle who still holds a foreign passport, will be of interest. Some history of gambling, drug or alcohol misuse? Infidelity? A tendency to not get along with bosses? Significant debt? Anything at all hidden among those skeletons in the closet?

    The probe is looking for vulnerabilities, pure and simple. And that’s the scary “why this really matters” part of the China-based hack into American government personnel files.



    America’s spy agencies, like every spy agency, know people are manipulated and compromised by their vulnerabilities. If someone applying for a federal position has too many of them, or even one of particular sensitivity, s/he may be too risky to expose to classified information.

    And that’s because unlike almost everything you see in the movies, the most important intelligence work is done the same way it has been done since the beginning of time. Identify a person with access to the information needed (“Qualifying an agent;” a Colonel will know rocket specifications, a file clerk internal embassy phone numbers, for example.) Learn everything you can about that person. Was she on her college tennis team? Funny thing, your intelligence officer likes tennis, too! Stuff like that is very likely in the files taken from the Office of Personnel Management.

    But specifically, a hostile intelligence agency is looking for a target’s vulnerabilities. They then use that information to approach the target person with a pitch – give us the information in return for something.

    For example, if you learn a military intelligence officer has money problems and a daughter turning college age, the pitch could be money for secrets. A recent divorce? Perhaps some female companionship is desired, or maybe nothing more than a sympathetic new foreign friend to have a few friendly beers with, and really talk over problems. That kind of information is very likely in the files taken from the Office of Personnel Management. And information is power; the more tailored the approach, the more likely the chance of success.

    Also unlike in the movies, blackmail is a last resort. Those same vulnerabilities that dictate the pitch are of course ripe fodder for blackmail (“Tell us the location of the code room or we’ll show these photos of your new female friend to the press.”) However, in real life, a blackmailed person will try whatever s/he can do to get out of the trap. Guilt overwhelms and confession is good for the soul. A friendly approach based on mutual interests and goals (Your handler is a nice guy, with a family you’ve met. You golf together. You need money, they “loan” you money. You gossip about work, they like the details) has the potential to last for many productive years of cooperative espionage.


    So much of what a foreign intelligence service needs to know to create those relationships and identify those vulnerabilities is in those hacked files, neatly typed and in alphabetical order. Never mind the huff and puff you’ll be hearing about identity theft, phishing and credit reports.

    Espionage is why this hack is a big, big deal.



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  • An Act of Conscience to Speak Out

    February 10, 2012 // 0 Comments

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




    The Department of State claims it can deny me the opportunity to speak or write publicly in violation of my First Amendment rights, and your First Amendment rights to listen to me if you wish.

    When I sought this permission to speak, I was told that I must write out my speech word-for-word for them to edit, alter, change, or refuse to allow at all, and that I could not speak extemporaneously and could not take questions from my audience. I was told that if I read out loud from my book I would be violating the State Department’s rules on divulging classified information, even though my book contains no classified information.

    When I sought their permission to write, I was told people would mistake my writing for an official statement and permission was denied. As implemented, State’s rules amount to simple prior restraint.

    The State Department believes that American Citizens give up their Constitutional rights for the privilege of employment. The Supreme Court said no, in Pickering v. Board of Education.

    When I joined the State Department, the oath I swore was to the Constitution. When I speak, I am upholding the Constitution. When I speak, the State Department instead claims I am insubordinate.



    So be it.

    So it became an act of civil disobedience for the New York Times to publish my writing today. If my writing was insubordinate, then publishing was abetting my violation. Will State discipline the Times or just seek to bully me?

    So it became an act of civil disobedience for RT.com to invite me to speak on camera about how whistleblowers are treated by our government. Will State discipline RT.com or just seek to bully me?

    So it became an act of civil disobedience for these places to publish my writing about my case and those of other whistleblowers:

    TomDispatch

    CBS News

    Huffington Post

    Salon


    The Nation

    Middle East Online

    Mother Jones

    Opposing Views

    Commondreams.org

    Michael Moore’s blog

    Juan Cole Informed Comment

    Arab News

    Democratic Underground

    Guernica

    Democracy Japan


    Maine has a proud Yankee tradition of standing up to tyrants and bullies, and so it became an act of civil disobedience for Maine’s Mid Coast Forum on Foreign Relations to allow me to speak in front of a group of over 150 people, most of whom work or worked in the foreign affairs field. It was with a sense of responsibility absent in today’s Foggy Bottom that several members of the audience told me they had retired from State and were saddened to learn how far from the ideals of free speech the organization that they– and I– served had fallen. Many in the audience agreed to donate to the non-profit organization that is representing me in my struggle to speak out.

    The Forum recorded my entire speech, which will air throughout the State of Maine on public broadcasting in spite of the Department of State’s efforts to prevent people from hearing what I have to say.

    If you want to join me in these acts of civil disobidience, do something against the State Department’s version of the law: listen to my speech in Maine.

    We don’t live in Egypt, or Syria or anywhere else where the government can control what you listen to. If the Secretary of State will go before those people and speak for their rights to talk back to their governments, she should damn well allow the same for her own employees.

    So it became an additional act of civil disobedience that in response to a request from the students of the University of Maine, I stood up and spoke to them too. It shouldn’t be an act of courage, but it was, because the US Department of State refused me permission. And because the students at a public university have a First Amendment right to listen, I stood up and exercised my First Amendment right to speak.

    You can read about the speech here.

    The State Department declared that this was an act of insubordination. I stand in broader footprints and declare it was an act guaranteed by the Constitution.

    What do you say Mrs. Clinton? Is this insubordination? Is this the Department of State you lead? Is this the message, the America, you represent?



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  • Five Bad Arguments to Restrict Speech

    June 1, 2017 // 7 Comments

    Tags: , ,
    Posted in: Post-Constitution America


    Without free speech people stop thinking, losing out on all but a narrowing band of ideas. Open discussion, debate, and argument are the core of democracy. Bad ideas are defeated by good ideas. Fascism seeks to close off all ideas except its own.

    Yet all of these most basic concepts of free speech in our nation are under threat, and too many of them are under threat from the left. I never thought I would write that last phrase, just as I never thought I’d need to explain five bad arguments the Left is using to restrict speech from the Right.

     

    Despicable People

    Despicable people and their ideas have always existed, though it is essentially a quick summary of the whole point of free speech to remind that at different times in our history speaking out against slavery, against war, against one president or another, have all been seen as despicable. Restrictions on free speech have been used to ban great literature, books about women’s reproductive health, and photos once deemed “pornopgraphic” now displayed as art. Someone will always find an idea or word offensive. Allowing that person to judge for all of us has never proven to be on the right side of history.

    The arrival in 2017 of neo-nazis, alt-right, white supremacists, racists, and the many flavors of ‘phobes is sadly nothing new. The current poster children for hate, Richard Spencer, Milo Yiannopoulos, Ann Coulter, and Charles Murray, are no one new either (Coulter’s first book came out in 1998; Murray published his loathed book on welfare in 1984 and both have spoken publicly ever since.) What does seem to be new is that their opposition — the antifa, the anti-fascists — is now aggressively embracing many of the same tools once used to try and stop the anti-war movement, feminists, and other progressive groups in the past. The justification is Everything Is Different since November’s election, and the old rules not only don’t apply, but that wishy-washy democratic ideals of free speech are now a threat to democracy.

     

    Punching Nazis

    And so an incident at the Trump inaugural set “Is it OK to punch a Nazi for what he said?” bouncing around the media, including in the New York Times and The Nation, two venerable outlets which have otherwise long fought for free speech, and whose writers have long risked jail time in the practice of it.

    What happened was that alongside the inauguration Neo-Nazi Richard Spencer was explaining live on camera the meaning of Pepe the Frog, a silly cartoon figure somehow adopted as a mascot by the anti-immigrant, anti-Semitic, and anti-feminist movement Spencer promotes. An anonymous black-clad antifa protester ran into the scene and sucker punched Spencer. His free speech was ended by that act of violence.

    There followed tens of thousands of comments on the YouTube videos of the attack. The standard response was “I don’t condone violence BUT…” and then go on to condone violence. Another popular comment was to invoke Hitler, claiming violence is now justified as a leftist response to hateful speech by the right, and that if perhaps more people had punched Hitler in the early days the world would be a better place. More than a few people online also suggested punching someone in the head is in fact a form of protected free speech itself, and others seem to think whatever they label as “hate speech” is a crime. Others used phrases along the lines of “the end justifies the means” and “by any means necessary.”

    A popular meme was to put different songs, many calling for more violence, behind the punching video. Jon Favreau, a former speechwriter for Barack Obama, tweeted “I don’t care how many different songs you set Richard Spencer being punched to, I’ll laugh at every one.”

    Following the Spencer attack, similar violence landed at Middlebury College, then at a rally where one protester who displayed a Confederate flag was attacked, and at the University of California Berkeley (the university was ironically home to the Vietnam War protest-era Free Speech Movement.) Institutions, including Berkeley and New York University, canceled, postponed, or scheduled into dead zones for attendance speeches by conservative speakers, citing public safety concerns.

    What grew out of the Spencer incident and those in Berkeley, Middlebury and elsewhere are a series of inaccurate and/or weak arguments from too many in favor of restricting speech. Let’s look at some, and why they do not hold up.

     

    1. The First Amendment Only Applies to Government?

    The first fallacious argument used to shut down free speech is that the First Amendment of the Bill of Rights in our Constitution only applies to government, and so universities or other entities are entitled to censor, restrict or shut down altogether speech willy-nilly.

    Short Answer: Not really. Public funding invokes the First Amendment for schools, and free speech runs deeper than the Bill of Rights. It’s as much a philosophical argument as a legal one, not a bad thing for a nation founded on a set of ideas (and ideals.)

     

    Free speech in America is an unalienable right, and goes as deep into the concept of a free society as any idea can. Though cited as far back as 1689 in England, the American version of this was laid out most clearly by Thomas Jefferson, in the mighty Declaration of Independence, where he wrote of rights that flowed from his notion of The Creator, not from government, and thus were fixed.

    Jefferson’s invocation of the Creator is understood now as less that free speech is heaven-sent and more that it is something that exists before and after our time. Government thus did not give us the right to free speech and therefore cannot take it away. The First Amendment simply codifies that latter part, laying out like much of the Bill of Rights what the government cannot do. So the argument that the First Amendment does not necessarily apply to all public speaking can be both true and irrelevant at the same time, and the latter is more important. Abetting free speech is an obligation in a democracy in general, and to an institution devoted to truth and education in the particular.

    And though the fundamental argument is the controlling one, there does also exist a legal one that extends the First Amendment restrictions to institutions that accept Federal funding (which means most of them); in the 1995 case Rosenberger v. University of Virginia, the Supreme Court held that the University could not fund all student publications except those addressing religious views because such a policy violated the institution’s constitutional obligation not to discriminate against particular viewpoints.

    Bottom Line: Universities are not free to restrict speech simply because they are not the government. They should be ashamed of themselves for trying to find ways to circumvent free speech instead of promoting it.

     

    2. What’s Said May Provoke Violence in the Room (A Clear and Present Danger)

    Some claim that certain conservative speakers, such as Milo Yiannopoulos, who purposefully use anti-LGBTQ slurs to provoke their audiences, should be banned or shut down. Their speech is the equivalent of yelling Fire! in a crowded movie theatre when there is no actual danger, provoking a deadly stampede for the exits.

    Short Answer: The standards for shutting down speech are very restrictive, and well-codified. Milo comes nowhere close.

     

    The Fire! line from a Supreme Court decision Schenck v. United States by Justice Oliver Wendell Holmes is often cited as justification for limiting free speech. Here’s what Holmes wrote:

    The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.

    The full decision says the First Amendment doesn’t protect false speech that meets three conditions: 1) the speech must be demonstrably false; 2) it must be likely to cause real harm, not just offense or hurt feelings, and 3) must do so immediately. That’s the “clear and present danger.”

    This interpretation of the First Amendment has been adjudicated to impose a high barrier to restrictions on what can be blocked or banned, and over the years has allowed flags to be burned in front of veterans, Nazis to march among Holocaust survivors, artists to make religious sculptures from their own body waste.

    Schenck was what jurists call bad law, in that it sought to use the Espionage Act against a Socialist pamphleteer, to stop free speech, not protect it (in other words, the pamphleteer was determined to be a clear and present danger in wartime and rightfully arrested.) The case was eventually overturned, and in truth Holmes’ statement was originally intended to mean the First Amendment is not absolute, that restriction is lawful, along with the developing idea that restriction on speech should be narrow and limited.

    It was the later case of Brandenburg v. Ohio that refined the modern standard for restricting speech to that “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” But we talk about Holmes’ “fire in a crowded theatre” line as a kind of shorthand for all that.

    Justice Holmes, perhaps as an act of contrition, later wrote in another landmark case:

    The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

    Bottom Line: The Supreme Court has set a very high bar against restricting speech based on the idea that what is being said leading to violence. Concerns, offense or general threats alone are insufficient to justify silencing someone as a solution.

     

    3. What’s Said May Provoke Violence Outside (Public Safety)

    The idea that a university or other venue cannot assure a speaker’s safety, or that the speaker’s presence may provoke violent protests, or that the institution just doesn’t want to go to the trouble or expense of protecting a controversial speaker has become the go-to justification for canceling or restricting speech. Berkley cited this in canceling and then de-platforming (rescheduling her when most students would not be on campus) Ann Coulter, whose campus sponsors are now suing, and New York University cited the same justification for canceling an appearance by Milo Yiannopoulos.

    Short Answer: Canceling a speaker to protect them or public safety is the absolute last resort, and some risk to safety is part of the cost to a free society for unfettered speech.

     

    The most glaring misuse of this argument is when such a justification is applied only toward one strain of speech, say unilaterally against conservative speakers and not against others. The conclusion can only be danger comes from unpopular ideas based solely on their being presented on a left-leaning campus. The argument of restricting a speaker “for their own safety” who is otherwise willing to take on certain risks to make their voice heard can thus be applied in a biased manner. Restricting speech for safety needs to be content neutral.

    Public safety has been long (mis)-used to silence otherwise protected speech. Recently the town of Urbana, Illinois arrested someone burning an American flag (an act long-held to be a form of protected speech) claiming he was in danger from bystanders. Such thinking has in the past been used to deny permits for civil rights marches, with law enforcement saying they could not protect the protestors. Both sides in the abortion debate have used this argument as well outside clinics.

    While institutions do have an obligation to public safety, that obligation must be balanced against the public’s greater right to engage with free speech. Though there exists opinion on the proper balance, the answer is rarely to ban speech outright simply to maintain order.

    One landmark case from 2015 provides some of the clearest guidance yet:

    When a peaceful speaker, whose message is constitutionally protected, is confronted by a hostile crowd, the state may not silence the speaker as an expedient alternative to containing or snuffing out the lawless behavior of the rioting individuals. Nor can an officer sit idly on the sidelines — watching as the crowd imposes, through violence, a tyrannical majoritarian rule — only later to claim that the speaker’s removal was necessary for his or her own protection. Uncontrolled official suppression of the privilege [of free speech] cannot be made a substitute for the duty to maintain order in connection with the exercise of that right.

    The case involved a group called the Bible Believers who used crude langauge (“Turn or Burn”) at an LGBTQ gathering. The judges continued in their opinion allowing the Bible Believers to speak:

    We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested; or allowing the Bible Believers to speak from the already constructed barricade to which they were eventually secluded prior to being ejected from the Festival.”

    “If none of these measures were feasible or had been deemed unlikely to prevail, the officers could have called for backup… prior to finding that it was necessary to infringe on the group’s First Amendment rights. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.

    The understanding that law enforcement, or any institution, can turn first to shutting down speech that requires physical protection, has failed the courts’ tests in cases are diverse as Occupy and where a Christian group brought a pig’s head on a stick to a Muslim Arts festival.

    In sum, the court has long recognized that content-based regulation of speech in a public forum (the “health and safety” restrictions) is permissible only “to serve a compelling state interest” and only when the regulation “is narrowly drawn to achieve that end.”

    Bottom Line: An institution cannot cite avoiding public disruption as the initial or sole reason to restrict speech. The problems of having Ann Coulter speak on campus are outweighed by the obligation to protect free speech. Maintenance of the peace should not be achieved at the expense of the free speech. Getting rid of the speaker is expedient but unconstitutional. There are plenty of laws that legitimately protect against violence on their own.

     

    4. Speech Can or Should Be Restricted Based on Content (Hate Speech)

    There are no laws against “hate speech.” A speaker can call people names, and insult them by their race, sexual orientation or religious beliefs. What many people think and say is hateful. It is carefully thought out to inspire hate, to promote hate, to appeal to crude and base instincts. Indeed, that is their point. But there is no law or other prohibition against hate speech. Even restrictions on “hate speech” meant to prevent violence, often cited as the justification to restrict such speech, are by design extremely narrow.

    Short Answer: You cannot restrict hate speech. Free speech means just that, with any limited restrictions content-neutral.

     

    The Brandenburg case test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intends that their speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of the speech. A hostile reaction of a crowd does not transform protected speech into incitement. Listeners’ reaction to speech is thus not a content-neutral basis for regulation, or for taking an enforcement action against a speaker.

    A second type of speech that is categorically excluded from First Amendment protection and often erroneously labeled hate speech are “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace.” No advocacy can constitute fighting words unless it is “likely to provoke the average person to retaliation.” Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual.

    The upshot is that apart from some very narrow definitions of violence-inducing words, the obligation exists to the concept of free speech independent of the content of that speech. This is also one of the most fundamental precepts of free speech in a democracy. There need be no protections for saying things that people agree with, things that are not challenging or debatable or offensive; free speech is not really needed for the weather and sports parts of the news. Instead, free speech is there to allow for the most rude, offensive, hateful, challenging stuff you (or your neighbor, your political party, your government) can imagine.

    This is why, in the midst of Berkeley seeking to ban Ann Coulter from campus, Elizabeth Warren said “Let her speak. If you don’t like it, don’t show up.” Same for Bernie Sanders, who said “What are you afraid of, her ideas? Ask her the hard questions. Confront her intellectually. Booing people down or intimidating people or shutting down events — I don’t think that that works in any way.”

    More? The ACLU also supports Coulter’s right to speak. And so the ACLU supports the rights of all groups, to include Nazis and the Klu Klux Klan, to speak.

    It should make a college age ACLU donor proud to know her $25 contribution helps both Black Lives Matter and the Klan to stand up and say what they think, but it apparently does not.

    The president of the Newseum goes as far as arguing some people have developed an “alternate understanding” of free speech, with students in particular believing “offensive” speech is or should not be protected, particularly when the offense is directed at groups defined by race, ethnicity, gender or sexual orientation.

    Ulrich Baer, vice provost for faculty, arts, humanities, and diversity, and professor of comparative literature at New York University, wrote plainly “Universities invite speakers not chiefly to present otherwise unavailable discoveries, but to present to the public views they have presented elsewhere. When those views invalidate the humanity of some people, they restrict speech as a public good. In such cases there is no inherent value to be gained from debating them in public.”

    Baer is worth quoting at length, because his views capture the view of many progressives toward the now-threatening concept of unfettered speech:

    The idea of freedom of speech does not mean a blanket permission to say anything anybody thinks. It means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community. Free-speech protections — not only but especially in universities, which aim to educate students in how to belong to various communities — should not mean that someone’s humanity, or their right to participate in political speech as political agents, can be freely attacked, demeaned or questioned.

    He ends without irony this way:

    Freedom of expression is not an unchanging absolute. When its proponents forget that it requires the vigilant and continuing examination of its parameters, and instead invoke a pure model of free speech that has never existed, the dangers to our democracy are clear and present.

    Baer could not be more wrong. There is no legal or other justification for banning speech based on who it may offend or threaten, in fact, quite the opposite. Justice Oliver Wendell Holmes declared unpopular ideas should have their opportunity to compete in the “marketplace of ideas.” Free speech is not an ends, it is a means, in a democracy.

    Justice Louis Brandeis held that people must discuss and criticize ideas, that free speech is not only an abstract virtue but also a key element that lies at the heart of a democratic society. Even the fact that speech is likely to result in “violence or in destruction of property is not enough to justify its suppression.” Brandeis concluded “the deterrents ordinarily to be applied to prevent” violence and disruption “are education and punishment for violations of the law, not abridgment of free speech.”

    Bottom Line: There is no justification for restricting speech so that people are not offended. Speech may offend, indeed that may be its point, but bad ideas are then defeated by better ideas.

     

    5. Free Speech Should Not Be Subject to the Heckler’s Veto

    Another argument used by some progressives is that the so-called Heckler’s Veto is in itself protected speech. Someone may have a right to speak, but someone else has the same right to shout them down and prevent them from being heard.

    Short answer: Free speech is not intended to mean whomever can literally “speak” the loudest gets to control what is said. The natural end of such thinking is mob rule, where Speaker A gets a bigger gang together to shout down the gang Speaker B controls.

     

    While protestors have an obligation not to abuse their rights of free expression by harassing or intimidating speakers in ways that unduly interfere with communication between a speaker and an audience, there does exist a balancing process.

    Agreed upon is that numerous legitimate ways exist to challenge speakers, including engaging them or ignoring them entirely. In contrast, using a Heckler’s Veto to keep unpopular speakers from expressing their views not only stifles a particular idea, but threatens to chill public discourse generally by discouraging others with controversial ideas from sharing them. Who wants to stand up only to be shouted down by a mob?

    The most insidious use of the Heckler’s Veto is to have audience members create a situation that compels law enforcement to shut down a speaker for them, abusing their own freedom of speech to get the government to shut down someone else’s. The law allows for law enforcement to act this way, but also makes clear it is wrong for “regulations to allow a single, private actor to unilaterally silence a speaker.”

    It is also quite sad to note the same tactic used at Middlebury College to silence speaker Charles Murray was employed during the civil rights movement when whites threatened violence if civil rights marches were permitted to take place. The tactic is also used by abortion foes to try and shut down clinics. The Supreme Court concluded the government’s responsibility in these circumstances is to control those who threaten or act out disruption, rather than to sacrifice the speaker’s First Amendment rights. Unfortunately, that was not what happened in Middlebury College, as Murray was run out of town for his own safety and the mob won.

    Bottom Line: Balancing the rights of the speaker, those who wish to hear them, and those who wish to protest is complicated. But simply shutting down one party entirely, or allowing one party to block the rights of the others, is wrong.

     

    Flipping the Argument

    It is hard today to be seen as defending the nasty words of a guy like Richard Spencer when one is defending his right to speak independent of what he says. It is easy for some in Trump’s America to claim the struggle against fascism overrules the old norms, that freedom must be defended and that defense justifies violence. Flipping an argument makes it easier to see the fallacy. So:

    So this guy beat the air out of this Black Lives Matter woman; she was spewing out hate speech, really racist stuff, and the guy acted in what he perceived as self-defense. Then some people who opposed Trump’s travel ban started calmly laying out their views on a street corner, and the same guy, who believes deep into his soul that Muslims are a threat to democracy and allowing them into America is a step toward fascism, got a bunch of his buddies together and by sheer force of numbers shouted down the pro-Muslim people, forcing them to run away for fear for their safety.

    Justification? The dude was pretty clear he was just exercising his First Amendment rights, that it was wrong for those protesters to have a platform and hey, he isn’t the government and the First Amendment only applies to the government. Sure violence is bad in isolation, but in defense of freedom, well, by any means necessary. While he was beating on the activists, he shouted he “understands the moral and practical limitations of wholly free discourse.”

    You get it.

    Free speech protection covers all the things people want to say, from the furthest left to the furthest right. You can burn a flag, display a nude body, fill a fish tank with urine and call it art, put on a KKK uniform and march past a Black church, and say whatever Richard Spencer says. Free speech means a lot of things, including that I can write this article, and you can say what you want about it and me. It is messy as hell, and it is our essential defense against fascism and control, whether from the left or the right.

     

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    Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

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  • Dear President Trump: Do Not Prosecute Wikileaks

    May 31, 2017 // 19 Comments

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




    Chelsea Manning, whose information about the war in Iraq first brought Wikileaks to the attention of Americans, will leave prison as a free woman on May 17.

    However, the U.S. government’s attempts to punish people for bringing war crimes from Iraq into daylight continues, in the form of prosecutions directed against Wikileaks and/or its founder Julian Assange.

    I recently signed an open letter in support of Wikileaks, as drafted by the Courage Foundation. Here it is.


    Dear Mr. President,

    We are journalists, activists and citizens from the United States and
    around the world who care about press freedom and are writing to you in
    response to the latest threat of prosecution against WikiLeaks for its
    journalistic work. We ask you to immediately close the Grand Jury
    investigation into WikiLeaks and drop any charges against Julian Assange
    and other Wikileaks staff members which the Department of Justice is
    planning.

    This threat to WikiLeaks escalates a long-running war of attrition
    against the great virtue of the United States — free speech. The Obama
    Administration prosecuted more whistleblowers than all presidents
    combined and opened a Grand Jury investigation into WikiLeaks that had
    no precedent. It now appears the US is preparing to take the next step
    — prosecuting publishers who provide the “currency” of free speech, to
    paraphrase Thomas Jefferson. It is reported that charges, including
    conspiracy, theft of government property and violating the Espionage Act
    are being considered against members of WikiLeaks, and that charging
    WikiLeaks Editor, Julian Assange, is now a priority of the Department of
    Justice.

    A threat to WikiLeaks’ work — which is publishing information protected
    under the First Amendment — is a threat to all free journalism. If the
    DOJ is able to convict a publisher for its journalistic work, all free
    journalism can be criminalised.

    We call on you as President of the United States to close the Grand Jury
    investigation into WikiLeaks and drop any charges planned against any
    member of WikiLeaks. It was a free and robust press that provided you
    with a platform on which to run for president. Defending a truly free
    press requires freedom from fear and favour and the support of
    journalists and citizens everywhere; for the kind of threat now facing
    WikiLeaks — and all publishers and journalists — is a step into the
    darkness.

    Sincerely,

    Trustees of Courage




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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

    HMH_programcover_v1.indd


    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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  • Film Review: National Bird Looks Deeply in the Drone War’s Abyss

    April 27, 2017 // 5 Comments

    Tags:
    Posted in: Afghanistan, Iraq, Military



    National Bird, a documentary film about America’s drone wars by filmmaker Sonia Kennebeck, airs May 1 at 10 pm on your local PBS station as part of the Independent Lens series.

    I had a chance to see the film in advance, and here’s why you should watch it: it is terrifying even in the quiet moments; it is most terrifying in the quietest moments.


    National Bird is a deep, multilayered, look into America’s drone wars, a tactic which became a strategy which became a post-9/11 policy. To many in Iraq, Afghanistan and throughout the world, America’s new national symbol is not the bald eagle, but a gray shadow overhead armed with Hellfire missiles.

    The Silence

    Scattered throughout the documentary are silent images from drones and aerial cameras, sweeping, hypnotic vistas taken from above both Afghan villages and American suburbs. The message could not be more clear: the tools used over there can just as easily be used over here, not merely for surveillance (as is already happening in America) but perhaps one day soon to send violence down from the sky. Violence sudden, sharp, complete and anonymous.



    The Americans

    The anonymity of that violence comes at a price, in this case in the minds of the Americans who decided who lives and dies. National Bird presents three brave whistleblowers, two former uniformed Air Force veterans (Lisa Ling, Heather Linebaugh) and a former civilian intelligence analyst (Dan), people who have broken cover to tell the world what happens behind the scenes of the drone war. There are ironic elements of “old hat” here, chilling in that we have sadly grown used to hearing that drone strikes kill more innocents than terrorists, that the people who make war justify their actions by calling their victims hajjis and ragheads, that America draws often naive young people into its national security state on the false promises of hollow patriotism and turns them into assassins.

    Heather suffers from crippling PTSD. Lisa is compelled to travel to Afghanistan with a humanitarian group to reclaim part of her soul, a victim of moral injury. Dan is in hiding as an Espionage Act investigation unfolds around him. A sobering side to this all is the presence of the whistleblowers’ attorney, Jesselyn Radack, who currently also helps defend Edward Snowden. Radack ties the actions of the drone whistleblowers into the larger post-9/11 narrative of retributive prosecutions and government attempts to hide the truth of America’s War on Terror from everyone but its victims.



    The Afghans

    The final layer of National Bird is what may be some of the first interviews with innocents who have suffered directly from drone attacks. The film interviews at length members of an Afghan extended family attacked from the air in a case of mistaken targeting even the Department of Defense now acknowledges.

    The family members speak six years after the fact as if still in shock. Here’s a boy who shows off his leg stump. Here’s a woman who lost her husband, the boy’s father, in the same attack. Here is another father discussing the loss of his own child. In a critical piece of storytelling, National Bird does not seek to trivialize the deaths in Afghanistan by weighing them against the psychological trauma suffered by the Americans, but rather shows the loss to everyone done in our names.

    (Full disclosure: Jesselyn Radack helped represent me in my own whistleblower fight against the U.S. Department of State in 2012)




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  • The Responsibility to Leak, and Leaking Responsibly

    February 23, 2017 // 96 Comments

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




    I know you’re out there, and this is for you. What you’re weighing, it’s not as easy as you think. But it can matter more than anything else you do with your professional life.


    Washington is awash with leaks; if they were real water we’d all drown. The American people feel they are seeing the inner most workings of government, and it is not pretty. Powerful people are falling. Our democracy may be at risk. President Trump and his team have no intention of watching from the sidelines. There is a struggle going on, and people are taking sides.

    So if you’re a government employee sitting in a cubicle in Washington DC, what are you thinking? To leak or not to leak? Will you blow the whistle?

    I know more than a little bit about your decision. With 21 years of service at the Department of State, I was assigned to wartime Iraq in 2009. For me, when the waste, fraud, and mismanagement of the reconstruction program under Presidents Bush and Obama reached the limits of what in good conscience I could participate in, and after failing to see any change going through channels, I blew the whistle, via a book, We Meant Well. The State Department in response flirted with sending me to jail, tried to fire me in part for “lack of candor” in refusing to participate in their investigation, and in the end pursued me into an early retirement.

    I learned the decision to contact a reporter, or otherwise to blow the whistle, is a hard one. In the end you have to ask yourself one seemingly simple but actually complex question: is the juice worth the squeeze?

    As for that squeeze, an anonymous leaker must expect people to come looking; you’re taking on the President of the United States after all. If the past (including my case) is any guide, much of the action that follows a disclosure will be aimed at the leaker, not the information leaked. You will be scared going in, but the fear should make you cautious. You will need to learn what intelligence officers call tradecraft; you may end up trying to hide your actions from them. Whatever journey you embark on, fear will travel with you.

    There are real things to be afraid of. Following the example set by the Obama administration, someone exposing classified information may be subjected by the Trump administration to Espionage Act prosecution, with the near-certainty of Federal prison time if convicted.

    Think you’re too unimportant for an investigation? Safe because your leak was, as in my own instance, nothing remotely classified? Maybe. But the most effective way to silence the next person in your position is to have them afraid to even try. Your now-adversaries would love to get the high level leakers, but won’t care too much if the heads on display come from the lower ranks instead. Either way the point to those others out there still considering leaking is made.

    The administration will fight back in other ways, too. You are an anonymous source, an unnamed official, someone “with knowledge of the discussion.” It’s your word against that of a person who can appear on a major news program to offer up information (real or not) that discredits yours. Americans tend to assess truthfulness these days in line with preconceived beliefs, and that’s running about 50-50 on any given day in the Trump Era.

    That’s the squeeze for a leaker. Now the juice.

    You may not have the evidence of a still-smoking gun to “bring down” anyone. But you can contribute to a larger story, supply a missing puzzle piece, or nudge an investigative process forward. A big mosaic is made of little pictures. What you know likely does matter, and the people have a right to know what matters about their government. Who besides someone on the inside – you – can tell them?

    Things can change significantly if you decide to blow the whistle, as opposed to leaking. While there are legal definitions, the key difference is a whistleblower purposely gives up their anonymity; Edward Snowden is the best known example. The risks scale up geometrically after that – you are saying “here I am, come after me.” Legal protections exist, including the Whistleblower Protection Act, but they do not snap into place easily. You will need a good lawyer well before you blow any whistle.

    The returns for blowing the whistle can be significant, and it was this calculus (plus a dollop of ignorance I’m afraid) that lead me away from leaking into a full public disclosure. Standing up by name, you earn credibility against attacks ad hominen, and for the information you supply. Your presence encourages and empowers others. Your motivations are on display; you are more easily seen as a patriot than a partisan. And you aren’t just passing on information. You are bearing witness, at risk to yourself.


    As one who has been there, my counsel is to think practically, not emotionally. Think larger than yourself, and think larger than political gossip. If I had the chance, I would remind every potential leaker or whistleblower their oath of service was to the Constitution, not to any particular leader or party, neither the one in, nor out, of power. So act on principle, not ego or revenge or ambition; the power to disclose carries with it a responsibility to act ethically. Your conscience will then be bulletproof, something very important as you will spend a lot of time in there. No guarantees, but an ethical disclosure may be easier to defend as well.

    People of conscience, leakers and whistleblowers alike, we’re made. We’re made by what the government does and fails to do, and by what we witness. If government acted as the Founders expected it should, we would not be here, like mushrooms that didn’t pop up on a dry lawn.

    It’s what all of us share: a love of country, if not necessarily its politicians. It’s in your hands to be on the right side of this struggle. One courageous act of conscience can make a difference in an America gone astray. That will be your anchor on an unsettling and fearful journey. I made a choice to be a whistleblower. I’d do it again. To me, the juice was worth the squeeze. You?




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  • Dear Meryl Streep, About That Golden Globe Speech

    January 10, 2017 // 18 Comments

    Tags: , ,
    Posted in: Trump




    Dear Meryl:

    I love so many of your movies. Sophie’s Choice and French Lieutenant’s Woman were especially faves. When we were both younger I had a total fan-boy crush on you (full disclosure.)

    And Trump is an ass, he did indeed mock a disabled person, hate breeds hate. Thank you, Meryl, for saying those truths.


    However, by confining your criticism, and not speaking out against Obama and his NSA, drones, Gitmo, wars (Libya, Syria, Iraq, etc), use of the Espionage Act, poor record on Freedom of Information Act requests, shielding CIA torturers from prosecution, never mind just making nice speeches while doing nothing practical to curb racism and mass killings, you leave all those bad things on the table. Silence insulates Trump from criticism for, for example, future drone terror, because he’ll be able to say “Well, Obama did it and no one complained.”

    You had a platform, a chance to lay down a marker to not allow the coming Obama revisionism to protect Trump, and you did not use it.


    By leveling criticism at Trump only, you spoke to the same group of people that already dislikes Trump. You squandered any credibility with the people you need to speak to, those who supported Trump but need to understand what is happening going forward. You made yourself and your pals feel all revolutionary and warm, but do you think you gathered any new support for the Dems heading forward into midterms? Nope.

    And by slipping in your snark against wrestling and MMA, Meryl, you flipped off a huge segment of the nation, some of whom the Dems may want as voters. I’m pretty sure very few people think of wrestling as what you called “The Arts” but sure, reinforce that idea that the Dems are cut off from regular people and that because those folks don’t watch black and white movies (how do you even know?) they are yokels.

    You really don’t get it, do you, Meryl? Your near-total misunderstanding of what is going on outside your happyland (Meryl, it seems your net worth is $75 million, and the only job you have held since graduating from Vassar and Yale has been actress) makes your “stand” seem pretty sad. People are hurting.

    So let me try and put it in terms you might “relate” to. One of your early roles was in the movie The Deer Hunter, about a group of blue collar steel workers who go off to Vietnam and are mentally and physically destroyed there. I spent a good part of a summer in the towns in West Virginia and Ohio where a lot of the movie was filmed. The factories are gone. The mills used as background scenery for your movie are cold and empty. The towns suffer from meth and opioid epidemics because of the pain. Nearly everyone is on some sort of food aid. An awful lot of the sons and daughters of the people who fought in Vietnam went on to fight in other pointless wars.

    Those people are pissed off, Meryl. They are pissed off at people like you who want to dismiss them as simple racists and women haters. They are pissed off at being told they are too stupid to realize Obama fixed their economy, and that people like you know better. They do not see Hillary’s defeat as a martyrdom operation. The election was less about Trump than it was about people like you.

    You made a movie in their backyard and then left them behind. That’s what happened, Meryl.


    Oh, and Meryl, an underappreciated bit of stupidity in your speech was stressing the diversity of your attendees like Sarah Jessica Parker by saying she was from Ohio, and someone else starring in something was from New Jersey. What the hell was that even about?




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  • Ban Trump, Twitter and Free Speech

    December 30, 2016 // 55 Comments

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

    In the through-the-mirror world we now live in, people who once unambiguously supported free speech now are finding plenty of things they want censored.

    Chief among those opposing ideas they want silenced are Donald Trump’s. His remarks — from the silly, labeled unpresidential, to the more extreme labeled racist/sexist/misogynist/hateful — have attracted a surprising group of otherwise intelligent people demanding he be shut up.



    Salon to Les Barricades!

    An article on Salon made the case, specifically demanding Twitter ban Trump. Here’s one representative paragraph:

    Republicans may not be willing to hold him [Trump] accountable for his dreadful behavior, but the rest of us don’t have to fall in line. Trump has repeatedly signaled his enthusiasm for dictators, which gives us serious reason to fear he may be eyeballing such powers for himself. Banning his Twitter account would be an important act of resistance.

    (Of course American presidents have supported a long line dictators — pick your faves, from Stalin in WWII to Somoza to the Assads to Saddam –without themselves becoming dictators, but no matter, we’re beyond history here.)

     

    But Twitter Has Terms of Service!

    Twitter, Facebook, etc., are private businesses and thus not subject to the First Amendment (which only restricts the government from crushing speech) and can make any usage rules they like. But in reality social media outlets have in our age become the public squares of the day, and must be seen and treated as such. For example, when they actually had the guts, good newspapers would go out of their way to print opposing viewpoints, recognizing their status as a public forum.

    So yes, yes, Twitter can ban redheaded users (sorry, gingers!) if they want to, but it would be detrimental to our broader national commitment to hearing each other out, including hearing from people we don’t agree with. No, ESPECIALLY hearing from people we don’t agree with. Of course there are also the problems that come up once you start banning people, given how opinions of what should be “allowed” can change as quickly as overnight election evening.

    So the fact that an entity can ban speech doesn’t mean it should.

    In a broader context, it is also always helpful to remember there are no laws against “hate speech” that prevent people from making rough political statements, or even stupid ones. There are laws against inciting violence “Kill all the redheads” but not against saying they suck or are monkeys.



    “You Can’t Yell Fire in a Crowded Theater”

    That paraphrase of a paragraph from a 1919 U.S. Supreme Court case, Schenck v. United States, 249 U.S. 47 (1919), written by Justice Oliver Wendell Holmes, is often cited as justification for limiting free speech. Here’s what Holmes wrote:

    The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.

    The statement says the First Amendment doesn’t protect false speech that is likely to cause immediate harm to others, three conditions. The speech must be demonstrably false, and it must be likely to cause real harm (not just offense or hurt feelings, a “clear and present danger”), and do so immediately.

    The interpretation of the First Amendment has been understood and adjudicated to impose a pretty high barrier to restrictions on what can be blocked or banned, and over the years has allowed flags to be burned, the KKK and Nazis to march, artists to make sculptures from their own body waste, and all sorts of political statements, at least a handful of which you would strongly disagree with and be deeply offended by.

    And so expression whose ban has been upheld over the long run has been narrow, things the vast majority society agrees are truly dangerous, such as child pornography.

    That’s the whole point — with as few limitation as necessary, protect expression people may or may not want to hear. The First Amendment is not there to protect Dancing with the Stars (though it does) but to protect the hard stuff, the hard calls.


    Schenck is Actually Evil

    And yes, Schenck itself was a crappy case that sought to use the Espionage Act against a Socialist pamphleteer, to stop free speech, not protect it, and the case was overturned. In fact, Holmes’ statement was a dictum that the First Amendment is not absolute, that restriction is lawful, along with the developing idea that restriction on speech should be narrow and limited.

    It was the later case of Brandenburg v. Ohio that refined the modern standard for restricting speech to that “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” But we talk about Holmes’ “fire in a crowded theatre” line as a kind of shorthand for all that.



    Let Him Speak — Loudly

    Justice Holmes, perhaps as an act of contrition, later wrote in another landmark case:

    The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

    So following the broad values enshrined in the First Amendment’s guarantee of free speech, even though it can, Twitter should not ban Trump. Let him tweet, hell, give him 20 extra characters. And let us know, judge, agree, oppose, and argue about what he says.


    PERSONAL BONUS: Writing in a mainstream publication that the president shouldn’t be allowed on Twitter? Jesus Christ, pull your shit together and get a freaking grip on yourselves. If you can’t do that, go hide under your bed and hug your stuffed animal Bobo. You want to worry about authoritarianism? It always includes shutting up people you don’t want to listen to.




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  • Requiem for the Obama Administration, Trump Edition

    December 7, 2016 // 78 Comments

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

    obama_burns_constitution

    The problems many are now predicting under the Trump administration did not start on November 8. The near-unrestrained executive power claimed by the Obama administration will be transferred to the president-elect. Here’s what that means.


    Torture

    Obama did not prosecute, fire or discipline anyone for torturing people on behalf of the people of the United States. He did not hold any truth commissions, and ensured almost all of the government documents on the torture program remain classified. He did not prosecute the CIA official who willfully destroyed video tapes of the torture scenes. He has not specifically disavowed secret prisons and renditions, just suspended their use.

    As with the continued hunting down of Nazis some 70 years after their evil acts, the message that individual responsibility exists must stalk those who would do evil on behalf of a government. “I was only following orders” is not a defense against inhuman acts. The purpose of tracking down the guilty is less to punish and more to discourage the next person from doing evil; the purpose is to morally immunize a nation-state.

    Because of these failures President Trump can, as he has proposed, restart the torture program at any time. Some claim the CIA won’t participate. Some always will of course, and if not at CIA, then a contractor will be found. And if another terror attack or two take place, then people at CIA and elsewhere in government will be lining up to conduct the torture as they did last time. They know they will never be held accountable. Indeed, Trump is apparently considering the CIA official who destroyed the torture tapes, Jose Rodriguez, to head up the agency.


    Assassinations

    Obama legalized, formalized, and normalized drone assassinations on a global scale, including the killing of American citizens without due process in direct violation of the Fifth Amendment, on the president’s order alone. The only real restraint he codified is self-restraint. When you leave a door open, you never know who will walk in.

    Because of this President Trump can do the same thing. Trump is unlikely to blow up the entire world with the nuclear codes, but please do not act surprised when his choice of American citizen targets may not match up with yours.


    Guantanamo

    Obama never closed Guantanamo as he promised. He could have, simply by depopulating it regardless of what Congress might have said. In 2014 when Obama needed to trade five Taliban from Gitmo for U.S. Army soldier Bowe Bergdahl in Afghanistan, Obama simply ordered those Taliban freed. He could do the same with anyone else there. He could have applied the full pressure of the U.S. on various countries to accept freed prisoners. He could have ordered the show trials to be conclude.

    Obama did not do these things. He instead normalized indefinite detention as a policy of the United States, and alongside that, as with torture and drone assassinations, the use of secret, convoluted legal opinions to justify such executive powers.

    So if President Trump choses to start refilling the cells at Guantanamo, and reminding the world of the lengths a frightened America is willing to go to imprison a single man, it should not be a surprise. And with the “legal” opinions, including ones still secret, behind such policies, stopping Trump will require years of counter-litigation never even begun under the Obama administration.


    Espionage Act

    Obama prosecuted more federal whistleblowers as spies under the Espionage Act than all previous U.S. presidents combined. He sent to jail people who exposed torture, and people who allegedly leaked information to journalists showing American complicity in dangerous acts abroad. He had Chelsea Manning prosecuted for exposing war crimes in Iraq. He used the Espionage Act to destroy the lives of others who under any definition except his own would be considered political heroes.

    Obama and his Justice Department created the playbook for how to use the hereto obscure Espionage Act to do these things.

    So if President Trump, perhaps with an attorney general Rudy Giuliani, uses that playbook to lock up whistleblowers, journalists, and people you might call dissidents and political prisoners, remember to again look the other way.


    Freedom of Information Act (FOIA)

    The Obama administration set a record for redacting government files or outright denying access to them in fiscal year 2014 – some 77% of FOIA requests were redacted or denied outright. More than any previous administration, Obama took longer to turn over files, said more often it couldn’t find documents and refused a record number of times to turn over newsworthy files quickly absent lawsuits 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 FOIA employees by nine percent. Despite the critical nature of the documents, the State Department was allowed to do its FOIA 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 don’t be surprised if the Trump administration does not end up as the most transparent one ever.


    NSA

    Obama never realistically reigned in the NSA after the Bush-era Patriot Act allowed the agency to turn its surveillance tools on the Homeland. Absent a few cosmetic changes, NSA continues to gather the full spectrum of Americans’ communications in violation of the Fourth Amendment, abetted by the secret FISA court and vaguely Constitutional tools such as National Security Letters and parallel reconstruction. Information lives forever, and the NSA is building bigger data warehouses to keep storing it.

    President Trump will have that information about you at his disposal. And so all who bleated “they had nothing to hide and thus have nothing to fear” during the Obama (and Bush) administration, out of trust for a president or fear of terror, well, now you can join the rest of us who have been terrified for a very long time.



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  • A Media Blacklist, Courtesy of WaPo: Now I’m Afraid for Our Democracy

    November 26, 2016 // 51 Comments

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

    firstamendment_0


    In most third world societies, when people don’t like the results of an election, they take to the streets. In America, we take to the Internet.


    But the end result is the same. The system is undermined because we do not like the results it yielded. Accusations of something unfair having happened are slung around, usually either unsupported by facts, based on faux “statistical anomalies,” or via a small data set that is blown up into something general to prove “the system is unfair/corrupt/wrong/inaccurate” to people who already believe that to be true but need talking points for their Facebook pages.

    This is the thought process that is driving the wishful thinking behind the recount efforts, and campaigns to push the Electoral College into voting Hillary Clinton into the White House.

    Of course a nice tag-along is if this can all be blamed on an outside third party. Dissatisfied people have little interest in blaming themselves, their flawed candidate, or acknowledging the strengths of the opponent among a large segment of voters. Nope, easier to blame someone else. For that, a person who has been molded into a one-word symbol of, well, everything and anything Americans fear, Putin.


    And so a recent article in the Washington Post terrifies me. It is at a level of journalism that previously was reserved for conspiracy theories on Geocities’ style web sites. Here’s a selection from the article:

    The flood of “fake news” this election season got support from a sophisticated Russian propaganda campaign that created and spread misleading articles online with the goal of punishing Democrat Hillary Clinton, helping Republican Donald Trump and undermining faith in American democracy.

    Russia’s increasingly sophisticated propaganda machinery — including thousands of botnets, teams of paid human “trolls,” and networks of websites and social-media accounts — echoed and amplified right-wing sites across the Internet as they portrayed Clinton as a criminal hiding potentially fatal health problems and preparing to hand control of the nation to a shadowy cabal of global financiers.

    So: Clinton lost because Russia wanted Trump to win because Trump will favor Russia so Russia created fake news which influenced over 62 million Americans to overlook Trump’s flaws and vote for him. Got it.


    Proof? Stuff on Facebook. Main source of that proof? A group of unknown origin, financing, and makeup (“an independent team of concerned American citizens”) called PropOrNot, i.e., propaganda or not. The group also “strongly suspects that some of the individuals involved have violated the Espionage Act, the Foreign Agent Registration Act, and other related laws.”

    A second source quoted by the Washington Post is Clint Watts, a fellow at the Foreign Policy Research Institute (which has been around in one form or another since the 1950s, dedicated to the Cold War), who says of the Russians “They want to essentially erode faith in the U.S. government or U.S. government interests.” Watts’s report on his work appeared on a blog this month as Trolling for Trump: How Russia Is Trying to Destroy Our Democracy. That piece claims without any real evidence at all that “Russia is actively trying to put Donald Trump in the White House… And the evidence is compelling.”

    I encourage everyone to read some of the linked articles. This is seriously scary Cold War paranoia stuff.


    And guess what? The ProporNot group has created a (black)list of websites that it claims are controlled/influenced by the Russians. While — dammit — this website in not included, I take some solace in noting that I have written for or been reprinted by 11 of them.

    “They use our technologies and values against us to sow doubt,” said Robert Orttung, a George Washington University professor who studies Russia, quoted in the article.

    And that sounds dangerously close to saying our First Amendment’s freedom of speech provisions seem to be the root of this threat to American democracy.



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  • Apocalypse Then, and Now, Cracker Revolution Edition

    November 16, 2016 // 26 Comments

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

    hillbilly
    Chris Hedges just wrote this about the Trump Era:

    “The repression of dissents will soon resemble the repression under past totalitarian regimes. State security will become an invasive and palpable presence. The most benign forms of opposition will be treated as if they are a threat to national security. Many, hoping to avoid the wrath of the state, will become compliant and passive… exonerating militarized police forces for the indiscriminate murder of unarmed citizens, while he unleashes the fossil fuel industry and the war industry to degrade and most probably extinguish life on earth.”

    Um, Chris, your verb tenses are all wrong.

    These things have been ongoing for the past 15 years. Obama prosecuted more dissidents, er, “whistleblowers,” than all previous presidents combined, and he did by calling them spies under the 1917 Espionage Act. The NSA as state security has been monitoring you under two administrations.

    Militarized police forces received their tanks and other weapons from two presidents. All of the terrible events that lead to Black Lives Matter took place before the election, and the killers were for the most part left unpunished by both the judiciary for criminal murders, and by the Federal-level Department of Justice for violation of civil rights. Unlike during the 1960s when the Feds stepped in and filed civil rights charges to bust up racism among local and state governments, the last two administration have not.

    When people do bad things and know they’ll get away with them, that is “normalization,” not just some hate words we have sadly all heard before.

    As for war and fracking, um, the U.S. has been engaged in global wars for 15 years, and set the Middle East on fire. Fracking has been destroying our nation for years, and oil dumped into the Gulf back in 2010.

    Fascism did not start on November 8. We have been living in a police state of sorts for some time before you all discovered it will start next year.

    BONUS: As for the idea that Trump was elected by dumb white men, here are some statistics from the New York Times on the vote count. Yes, yes, most are above 50%, but really not that much above half that the claim that this is some sort of cracker revolution holds up.

    For Trump, 58% of all whites, 53% of males, 50% of suburbans of all flavors and, yes, 67% of whites without college.

    As for this election being a vote for misogyny, can you at least allow for the possibility — just that, the possibility — that people were not opposed to a woman president, they were opposed to one specific person who happened to be a woman, and that opposition was not based on gender but on a range of issues? Just maybe?

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  • Voters: 50 Percent Say Clinton Should Keep Running Even If Indicted

    June 8, 2016 // 17 Comments

    Tags: ,
    Posted in: Democracy

    hillary

    In a statement I never expected to see in print, half of voters said in a survey a presidential candidate should continue to run for America’s highest office even if she is indicted for national security crimes.


    For those who want historical markers to look back on, charting decline in civilization and deviations from reality, well, there’s a good one.

    The latest Rasmussen Reports survey, taken in late May, finds most voters (65%) believe Hillary Clinton is a lawbreaker, but half of all voters also say a felony indictment shouldn’t stop her campaign for the presidency.

    Among Democratic voters, 71% believe Clinton should keep running even under indictment. Nearly half say it will have no impact on their vote. It is unclear that, in theory, that any of those surveyed understand a candidate indicted in the fall of 2016 could face trial/impeachment while in office in 2017.

    Those surveyed are saying that even if the FBI releases a report saying their lengthy investigation shows there is enough evidence to bring Clinton before a grand jury, that does not matter to them.

    In what I hope is a statistical anomaly, eight percent say indictment makes them more likely to vote for the former first lady.


    Just to make this as clear as possible, Hillary Clinton is the only presidential candidate in the history of the United States to be running while under an FBI investigation for national security crimes that could reach as high as the Espionage Act. About 65% of American voters already believe she broke laws, ahead of the FBI results and when asked before the State Department Inspector General’s report was released.

    But they’ll vote for her anyway. I am rarely at a loss for words, but this time I just don’t know what to say anymore.


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  • Hillary Clinton Emailed Names of U.S. Intelligence Officials, Unclassified

    June 6, 2016 // 15 Comments

    Tags: , , ,
    Posted in: Embassy/State

    clinton

    These are facts.

    You can look at the source documents yourself. This is not opinion, conjecture, or rumor. Hillary Clinton transmitted the names of American intelligence officials via her unclassified email.

    From a series of Clinton emails, numerous names were redacted in the State Department releases with the classification code “B3 CIA PERS/ORG,” a highly specialized classification that means the information, if released, would violate the Central Intelligence Act of 1949 by exposing the names of CIA officials.



    How FOIA Works

    The Freedom of information Act (FOIA) requires the government to release all, or all parts of a document, that do not fall under a specific set of allowed exemptions. If information cannot be excluded, it must be released. If some part of a document can be redacted to allow the rest of the document to be released, then that is what must be done. Each redaction must be justified by citing a specific reason for exclusion.

    But don’t believe me. Instead, look at page two of this State Department document which lists the exemptions.

    Note specifically the different types of “(b)(3)” redactions, including “CIA PERS/ORG.” As common sense would dictate, the government will not release the names of CIA employees via the FOIA process. It would — literally — be against the law. What law? Depending on the nature of the individual’s job at CIA, National Security Act of 1947, the CIA Act of 1949, various laws that govern undercover/clandestine CIA officers and, potentially, the Espionage Act of 1917.



    Names of CIA, NSA Officials Mentioned, Now Redacted

    Yet Hillary’s emails contain at least three separate, specific instances where she mentioned in an unclassified email transmitted across the open Internet and wirelessly to her Blackberry the names of CIA personnel. Here they are. Look for the term “(b)(3) CIA PERS/ORG” Click on the links and see for yourself:

    CIA One

    CIA Two

    CIA Three

    There are also numerous instances of exposure of the names and/or email addresses of NSA employees (“B3 NSA”); see page 23 inside this longer PDF document.



    Why It Matters

    — These redactions point directly to violations of specific laws. It is not a “mistake” or minor rule breaking.

    — These redactions strongly suggest that the Espionage Act’s standard of mishandling national defense information through “gross negligence” may have been met by Clinton.

    — There is no ambiguity in this information, no possible claims to faux-retroactive classification, not knowing, information not being labeled, etc. Clinton and her staff know that one cannot mention CIA names in open communications. It is one of the most basic tenets taught and exercised inside the government. One protects one’s colleagues.

    — Exposing these names can directly endanger the lives of the officials. It can endanger the lives of the foreigners they interacted with after a foreign government learns one of their citizens was talking with the CIA. It can blow covers and ruin sensitive clandestine operations. It can reveal to anyone listening in on this unclassified communication sources and methods. Here is a specific example of how Clinton likely compromised security.

    — These redactions show complete contempt on Clinton’s part for the security process.



    BONUS: There is clear precedent for others going to jail for exposing CIA names. Read the story of John Kiriakou.

    A Personal Aside: I just remain incredulous about these revelations seeming to mean nothing to the world. They’re treated in the media as almost gossip.



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  • Film Review: National Bird Looks Deeply in the Drone War’s Abyss

    May 6, 2016 // 5 Comments

    Tags: , ,
    Posted in: Afghanistan

    national bird



    It is terrifying even in the quiet moments; it is most terrifying in the quietest moments.


    National Bird, a new documentary by filmmaker Sonia Kennebeck, co-produced with Errol Morris and Wim Wenders, is a deep, multilayered, look into America’s drone wars, a tactic which became a strategy which became a post-9/11 policy. To many in Iraq, Afghanistan and throughout the world, America’s new national symbol is not the bald eagle, but a gray shadow overhead armed with Hellfire missiles.

    The Silence

    Scattered throughout the documentary are silent images from drones and aerial cameras, sweeping, hypnotic vistas taken from above both Afghan villages and American suburbs. The message could not be more clear: the tools used over there can just as easily be used over here, not merely for surveillance (as is already happening in America) but perhaps one day soon to send violence down from the sky. Violence sudden, sharp, complete and anonymous.



    The Americans

    The anonymity of that violence comes at a price, in this case in the minds of the Americans who decide who lives and dies. National Bird presents three brave whistleblowers, two former uniformed Air Force veterans (Lisa Ling, Heather Linebaugh) and a former civilian intelligence analyst (Dan), people who have broken cover to tell the world what happens behind the scenes of the drone war. There are elements of “old hat” here, chilling in that we have grown used to hearing that drone strikes kill more innocents than terrorists, that the people who make war justify their actions by calling their victims hajjis and ragheads, that America draws often naive young people into its national security state on the false promises of hollow patriotism and turns them into assassins.

    Heather suffers from crippling PTSD. Lisa is compelled to travel to Afghanistan with a humanitarian group to reclaim part of her soul. Dan is in hiding as an Espionage Act investigation unfolds around him. A sobering side to this all is the presence of the whistleblowers’ attorney, Jesselyn Radack, who currently also helps defend Edward Snowden. Radack ties the actions of the drone whistleblowers into the larger post-9/11 narrative of retributive prosecutions and government attempts to hide the truth of America’s War on Terror from everyone but its victims.



    The Afghans

    The final layer of National Bird is what may be some of the first interviews with innocents who have suffered directly from drone attacks. The film interviews at length members of an Afghan extended family attacked from the air in a case of mistaken targeting even the Department of Defense now acknowledges.

    The family members speak six years after the fact as if still in shock. Here’s a boy who shows off his leg stump. Here’s a woman who lost her husband, the boy’s father, in the same attack. Here is another father discussing the loss of his own child. In a critical piece of storytelling, National Bird does not seek to trivialize the deaths in Afghanistan by weighing them against the psychological trauma suffered by the Americans, but rather shows the loss to everyone done in our names.

    National Bird is in limited film festival release, most recently at Tribeca in New York, before moving wider theatrical release in the U.S. this fall.



    (Full disclosure: Jesselyn Radack helped represent me in my own whistleblower fight against the U.S. Department of State in 2012)




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  • With Whistleblowers Jesselyn Radack and Tom Drake

    April 16, 2016 // 8 Comments

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

    jess and tom

    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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  • Does Over-Classification Matter With the Hillary Emails?

    April 15, 2016 // 8 Comments

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


    Rules are for fools, and in this case the fools in question are you, me and what’s left of the American democratic system. Obama, in an interview, basically made it clear nobody is going to indict Hillary Clinton for exposing classified material via her unclassified email server, even if it requires made-up rules to let her get away with it.

    The president’s comments in an interview last Sunday that “there’s classified and then there’s classified” made clear he imagines national security law allows for ample, self-determined fudge room when exposing classified material.



    Does Over-Classification Matter?

    In case you are still not sure, nope, that is not the way the law works, and everyone (including me, for 24 years) who has held a security clearance knows it.

    Obama’s and Clinton’s defenders claim that much of what Hillary exposed was over-classified, and perhaps some should never have been classified at all. Maybe. After reading documents at the Top Secret level and above over more than two decades I can say, sure, sometimes it seemed odd that something was regarded as as secret as it was.

    That said, one’s personal opinion is not relevant. The document is what it is and one is bound to handle it appropriately. The same rules apply to the lowest new hire to the highest officials. Just because the secretary of state, or the president, does it does not make it legal.



    Originating Agency

    Clinton mishandled two broad categories of documents, those classified by her own State Department and those classified by other government agencies, such as the CIA. Had she believed that the documents were wrongly classified, she had recourses for both sets. She did not act on those available recourses.

    With documents originally classified by her State Department, Hillary had the authority to declassify them herself while Secretary of State (both Obama and current SecState John Kerry still hold that authority and could declassify any of Hillary’s redacted emails right now with the stroke of a pen.) The thing is if Clinton did choose to declassify a document, she would have had to follow procedure, including seeking internal recommendations, make her action public and of course be willing to release the document newly-declassified. She did not do any of that.

    For the other agency documents, Hillary did not have the authority to declassify them. Only the CIA, for example, can declassify a CIA document in this process. Hillary did however have the authority to request a review aimed at declassification by the originating agency. She did not do any of that.



    No Blood, No Foul?

    In addition to his made-up assertion that “there’s classified and then there’s classified,” Obama disingenuously stated Hillary did not expose any information of value to America’s adversaries and so should suffer not sanction, the national security equivalent of no blood, no foul.

    The Federal laws that control classified information, up to and including the Espionage Act, do not require proof that the disclosed material aided America’s adversaries, or that the information even reached America’s adversaries. Motivation to disclose the information is also not considered relevant, whether than motivation was sincere whistleblowing or inadvertent mishandling. Guilt is based on the disclosure alone. This is why Chelsea Manning was not allowed to defend herself in this way, and why Ed Snowden believes he cannot have a fair trial in the U.S.

    Snowden had the last word on Obama’s statements.

    “If only I had known,” tweeted Snowden. “Anyone have the number for the Attorney General?. Asking for a friend.”




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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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  • Paranoia in a September 12 World

    May 18, 2015 // 4 Comments

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

    brazil

    It got me. Paranoia. Who is watching? What are the consequences in a September 12 world of things that used to be innocent?

    I began researching materials online that advise, in English, how someone might travel to Syria and join Islamic State (IS). Several media outlets mentioned an ebook IS created along those lines, but none linked to it or dove deep into what it said. I set out to find it, Googling away with “how to join Islamic State,” and “advice for jihadi travel.” I eventually found the ebook with the term “hijrah.” Used in canon to refer to Mohammad’s journey from Mecca to Medina, the word today colloquially refers to those who leave home for jihad.

    The ebook is brief, titled simply Hijrah to the Islamic State, some 50 pages with pictures and maps. The advice is mostly stuff you’d think people could figure out on their own. Bring a sturdy backpack, don’t tell Turkish immigration officials you are headed to Syria, don’t call attention to yourself in the airport, that sort of thing. There are a bunch of Twitter handles included so you can make contact with IS, but the few I checked were dead accounts.

    You could probably do better with Lonely Planet (which also advises travelers not to call attention to themselves, but to avoid being targeted by thieves, not anti-terror forces.) I found another site just for women seeking to join IS, assuring the traveler she’ll be in female-only accommodations and that they have diapers and baby stuff available. Otherwise, it was all about bringing books to read on the long trip and not forgetting needed medicines.

    I wrapped up my research with a quick buzz through Orbitz to see flight choices. New York was the default starting point because Orbitz had it already there from my previous searches. You can fly nonstop from the United States to Turkey, and then take a taxi to the Syrian border. Flights directly into Damascus involve a couple of stops, and most require you fly out of Newark. Jihad starts in Jersey, what a hassle.

    All in all, not much of story in the hijrah ebook, and certainly nothing at the they’re-seducing-our-kids-into-terrorism level, though New York Times called it “a remarkable ISIS travel guide” and authorities in the UK want to ban it from social media. The ebook is in reality near useless, except as another boogie man for westerners to point to.


    But I started to worry.

    Look at me: I Googled up a how-to manual for jihadis. I’d previously read al Qaeda’s Inspire magazine online (Islamic State has its own online magazine, and I read that too.) I looked into travel to Syria. I sought out a good translation of “hijrah.” Everything I did, I did from an office desk. It was all on the Internet, with no secret meetings in shadowy places. So it was OK, like going to the library, right?

    But I started to panic. How long until this reached critical mass, when some piece of software went “bing!” and some new protocol was applied to me? I have an international trip planned in a few weeks (plain vanilla Asia). Will I get selected for additional screening? Will I be questioned trying to exit or, later, when I re-enter the United States? Have I become paranoid? Should I be? Is it wise or stupid to worry about these things?

    I remember discussing the Jeffrey Sterling Espionage Act case, the case that at one point threatened to send reporter James Risen to jail for not revealing his sources. My friend said the case was probably one of the last of its kind. So the government learned its First Amendment lesson I asked? No, she said, next time the government won’t have to threaten a reporter; most reporters will either shy away from such stories, their editors will kill the reporting to avoid an expensive legal battle, or the government will already know who they talked to.

    I’m certain I am no James Risen. I’m pretty sure I didn’t write a more detailed story about the Islamic State travel guides because there was little to say, that the links I left out above were of little value. Google works at your house, too, if you really want to see them, and you’re not afraid of that, are you? The algorithms they — whoever they are — use are smart enough to see that I’m just a curious writer, and you’re just a curious reader, and none of us plans on joining IS, right?

    I still wrote a lawyer’s phone number in the back of my passport. Can’t be too careful these days, as people say. Threats are everywhere.




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  • ‘Killing Jews is Worship’ Posters to Appear on NYC Subways and Buses?

    May 1, 2015 // 13 Comments

    Tags: , ,
    Posted in: Democracy

    bus

    A story of our times, with massive First Amendment issues embedded.

    Kill Jews

    A federal judge ruled that a group (more below, who they are makes this case even more complex) may put up posters on New York’s public buses and subways saying “Killing Jews is worship that draws us close to Allah.” The poster features a young man in a checkered headscarf with the additional words “That’s His Jihad. What’s yours?”

    The poster is now at the epicenter between public safety and free speech. On Tuesday, a District judge ruled New York’s Metropolitan Transportation Authority (MTA) cannot stop the controversial ad.

    The MTA argued the ad could incite violence against Jews.

    However, MTA officials “underestimate the tolerant quality of New Yorkers and overestimate the potential impact of these fleeting advertisements,” the judge stated in his ruling. “Moreover, there is no evidence that seeing one of these advertisements on the back of a bus would be sufficient to trigger a violent reaction. Therefore, these ads — offensive as they may be — are still entitled to First Amendment protection.”

    The MTA has now fired the next shot in the struggle, banning all “political” advertising on its subways and buses. You can certainly expect that decision to be challenged by a very broad range of actors.



    The Speaker Versus the Speech

    The issues surrounding the “Kill Jews” poster are complicated, in that the sponsor is a pro-Israel, anti-Muslim organization. Pamela Geller, the president of the American Freedom Defense Initiative (AFDI), the group that purchased the ads and sued the MTA to run them, was overjoyed at the court’s decision to allow her to post the, to some, inflammatory ads.

    The Southern Poverty Law Center considers AFDI an “anti-Muslim” hate group. For example, earlier this year AFDI organized a portrait of the Prophet Mohammed contest, despite objections from Muslims who consider images of the Prophet blasphemous.

    The presumed purpose of the “Kill Jews” ads placed by a pro-Israel group is to conflate the murder of innocents of one religion by smearing all members of another religion.

    But can they say that kind of thing? Isn’t it Hate Speech and isn’t that illegal?

    The Limits of Free Speech

    The right to free speech enshrined in the First Amendment to the Constitution isn’t there for the easy cases; it is there for the tough ones.

    The Supreme Court has thus been very reluctant in modern times to issue limits on free speech; what is now commonly called “hate speech,” things like the Klu Klux Klan using the N-word, or religious fundamentalists protesting at veteran’s funerals by way of anti-gay slurs, have been ruled repeatedly to be protected acts of free speech. You get the good with the bad, no matter what you personally consider the good parts and the bad parts.

    See how it works?


    Some Bad History

    The broad concept of free speech is somewhat recent in the Supreme Court’s mind.

    One of the most shameful examples of restraint comes from the early 20th century case of U.S. v. Schenck. In that case, the Court decided Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed opposition to the draft during World War I. It was in that case that Justice Holmes made his famous statement in favor of restraint, the one about free speech not allowing someone to shout “fire” in a crowded theatre.

    So hate speech is illegal, like shouting Fire! and panicking a whole theatre full of people, right?



    That Was Then, This is Now

    The Supreme Court then did a 180 degree turn in the 1969 case of Brandenburg v. Ohio, which basically overturned Schenck. The Court held that inflammatory speech, even speech advocating violence, is protected under the First Amendment unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

    That is where today’s New York District judge’s specific wording came from. When he said that New Yorker’s would understand the broader political point of the “Kill Jews” poster and not actually be moved to murder, he was confirming the standard set in Brandenburg v. Ohio: you have to do more than just announce an intent toward violence, your statement has to be such that people will be actually willing to follow it.


    Back to the New York Buses

    Of course predicting what people might do in response to any bit of speech is very hard stuff. But the Supreme Court in fact granted that power to predict to the judicial system. In the “Kill Jews” case, the judge clearly decided no one would see the ads and decide, based on that, to actually commit murder.

    And that brings us back to Justice Holmes, the same Supreme Court judge who gave us the “fire in the crowded theatre” lines. Holmes later recanted, and became a firm advocate of nearly unrestrained free speech. Holmes wrote (Abrams v. United States) that the marketplace of ideas offered the best solution for tamping down offensive speech:

    The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

    In other words, let the ads play out on the New York buses and subways. The people are smart enough to know garbage when they smell it.






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  • Torture and the Myth of Never Again: The Persecution of John Kiriakou

    December 11, 2014 // 8 Comments

    Tags: ,
    Posted in: Iraq

    johnkiriakou

    No one except John Kiriakou is being held accountable for America’s torture policy. And John Kiriakou didn’t torture anyone, he just blew the whistle on it.


    In a Galaxy Far, Far Away

    The United States sanctioned acts of torture by the Central Intelligence Agency and others. The acts took place in secret prisons (“black sites”) against persons detained indefinitely without trial. They were described in detail and explicitly authorized in a series of secret torture memos drafted by John Yoo, Jay Bybee, and Steven Bradbury, senior lawyers in the DOJ’s Office of Legal Counsel. (Office of Legal Counsel attorneys technically answer directly to the DOJ, which is supposed to be independent from the White House, but obviously was not in this case.) Not one of those men, or their Justice Department bosses, has been held accountable for their actions.

    Some tortured prisoners were killed by the CIA. Attorney General Eric Holder announced recently that no one would be held accountable for those murders either. “Based on the fully developed factual record concerning the two deaths,” he said, “the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”

    Jose Rodriguez, a senior CIA official, admitted destroying videotapes of potentially admissible evidence, showing the torture of captives by operatives of the U.S. government at a secret prison thought to be located at a Vietnam-War-era airbase in Thailand. He was not held accountable for deep-sixing this evidence, nor for his role in the torture of human beings.


    John Kiriakou Alone

    The one man in the whole archipelago of America’s secret horrors who went to jail is former CIA officer John Kiriakou. Of the untold numbers of men and women involved in the whole nightmare show of those years, only one.

    And of course, he didn’t torture anyone.

    The charges against Kiriakou alleged that in answering questions from reporters about suspicions that the CIA tortured detainees in its custody, he violated the Espionage Act, once an obscure World War I-era law that aimed at punishing Americans who gave aid to the enemy. It was passed in 1917 and has been the subject of much judicial and Congressional doubt ever since. Kiriakou is one of six government whistleblowers who have been charged under the Act by the Obama administration. From 1917 until Obama came into office, only three people had ever charged in this way.

    The Obama Justice Department claimed the former CIA officer “disclosed classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities.”

    The charges resulted from a CIA investigation. That investigation was triggered by a filing in January 2009 on behalf of detainees at Guantanamo that contained classified information the defense had not been given through government channels, and by the discovery in the spring of 2009 of photographs of alleged CIA employees among the legal materials of some detainees at Guantanamo. According to one description, Kiriakou gave several interviews about the CIA in 2008. Court documents charge that he provided names of covert Agency officials to a journalist, who allegedly in turn passed them on to a Guantanamo legal team. The team sought to have detainees identify specific CIA officials who participated in their renditions and torture. Kiriakou was accused of providing the identities of CIA officers that may have allowed names to be linked to photographs.

    The real “offense” in the eyes of the Obama administration was quite different. In 2007, Kiriakou became a whistleblower. He went on record as the first (albeit by then, former) CIA official to confirm the use of waterboarding of al-Qaeda prisoners as an interrogation technique, and then to condemn it as torture. He specifically mentioned the waterboarding of Abu Zubaydah in that secret prison in Thailand. Kiriakou also ran afoul of the CIA over efforts to clear for publication a book he had written about the Agency’s counterterrorism work.

    If Kiriakou had actually tortured someone himself, even to death, there is no possibility that he would be in trouble. In the national security state that rules the roost in Washington, talking out of turn about a crime has become the only possible crime.

    Facing decades away from his family and young children, Kiriakou agreed to a plea bargain and is still in prison serving a 30-month sentence.


    Never Again

    For years it was the policy of the United States of America to torture and abuse its enemies or, in some cases, simply suspected enemies. It has remained a U.S. policy, even under the Obama administration, to employ “extraordinary rendition” — that is, the sending of captured terror suspects to the jails of countries that are known for torture and abuse, an outsourcing of what we no longer want to do.

    Techniques that the U.S. hanged men for at Nuremburg and in post-war Japan were employed and declared lawful. To embark on such a program with the oversight of the Bush administration, learned men and women had to have long discussions, with staffers running in and out of rooms with snippets of research to buttress the justifications being so laboriously developed. The CIA undoubtedly used some cumbersome bureaucratic process to hire contractors for its torture staff. The old manuals needed to be updated, psychiatrists consulted, military survival experts interviewed, training classes set up.

    Videotapes were made of the torture sessions and no doubt DVDs full of real horror were reviewed back at headquarters.

    Torture techniques were even reportedly demonstrated to top officials inside the White House. Individual torturers who were considered particularly effective were no doubt identified, probably rewarded, and sent on to new secret sites to harm more people.

    America just didn’t wake up one day and start slapping around some Islamic punk. These were not the torture equivalents of rogue cops. A system, a mechanism, was created. That we now can only speculate about many of the details involved and the extent of all this is a tribute to the thousands who continue to remain silent about what they did, saw, heard about, or were associated with. Many of them work now at the same organizations, remaining a part of the same contracting firms, the CIA, and the military. Our torturers.

    What is it that allows all those people to remain silent? How many are simply scared, watched what happening to John Kiriakou and thought: not me, I’m not sticking my neck out to see it get chopped off. They’re almost pathetically forgivable, even if they are placing their own self-interest above that of their country.

    But what about the others, the ones who remain silent about what they did or saw or aided and abetted in some fashion because they still think it was the right thing to do? The ones who will do it again when another frightened president asks them to? Or even the ones who enjoyed doing it?

    The same Department of Justice that hunted down the one man who spoke against torture from the inside still maintains a special unit, 60 years after the end of WWII, dedicated to hunting down the last few at-large Nazis. They do that under the rubric of “never again.” The truth is that same team needs to be turned loose on our national security state. Otherwise, until we have a full accounting of what was done in our names by our government, the pieces are all in place for it to happen again. There, if you want to know, is the real horror.




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  • Dinner with Morris Berman

    August 30, 2014 // 12 Comments

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    Posted in: Democracy

    They say never meet your heroes to avoid disappointment, and what with the various restraining orders and security, I have not met many of mine (maybe next year Miley?)

    I did have dinner with Dr. Morris Berman, and that made up for a lot of missed opportunities elsewhere. Dr. Berman, for those who don’t know, runs the blog Dark Ages America. Berman (pictured, left, perhaps not the best photo either of us has ever taken, but then again, the raw material is what it is) also wrote three books that to me are crucial to understanding the changes in America over the past couple of decades: The Twilight of American Culture, Dark Ages America: The Final Phase of Empire and Why America Failed: The Roots of Imperial Decline.

    The titles tell the tale, and Berman’s blog is equally dark and straightforward. I’ve written more about Berman’s work here.

    Dr. Berman gave a talk at Washington and Lee University in Virginia on post-9/11 America. As you might imagine, his survey, and, more significantly, his predictions, were of great concern.

    Central was the notion that Americans have become enveloped in their own myth, what some call “American Exceptionalism,” to the point where critical thinking, reflection and debate are no longer possible among us. Anyone who tries to engage on America thoughtfully is either ignored, shunned or dismissed as a traitor (it is thus not surprising that under the Obama Administration whistleblowers are punished with the Espionage Act.) Replacing reflection in America is cheerleading, the endless pronouncements of who is Number One (as if anyone was asking outside our borders) and of course the citing of our exceptionalism as justification for everything from the destruction of the Native Americans to plans for the bombing of Syria.

    Our present days are defined, according to Berman, by endless war and the completion of our police state. Is it not odd that the only country anyone can claim that won WWII has somehow seen fit to engage in continuous conflict ever since? Following a very brief respite between the Cold War ending and the convenience of 9/11 kicking off the Global War on Terror, America has now firmly set itself on course for endless war. The elements are all in place, primarily an enemy defined more by a tactic (“terrorism”) than anything else. Such an “enemy” can never really be defeated, and that indeed is the point.

    The police state in America, always bubbling below the surface, with zit-like bursts during the J. Edgar Hoover years and the 1968 Chicago police brutality, now is in place. Cops regularly exercise “frontier justice” on our streets, gunning down the guilty and the innocent alike in what the media rushes to call righteous shoots. Police departments across the U.S. are equipped with the weapons of war, everything from armored vehicles in suburbia to drones soon everywhere. Things like “stop and frisk” in New York City criminalize everyone, with particular attention to race.

    But worst of all is the realization that the power of government, spurred by surveillance tech undreamed of by the SS and the Stasi, has grown in power such that Americans can be denied jobs, travel and life itself based on their names being put by anonymous officials on secret lists. Indeed, the president can now indefinitely imprison Americans with the stroke of a pen, or choose to simply have them killed as they stand at the push of a Predator drone button. Imagine such power in the hands of a terrorist, then look out the window and realize it’s us.

    Overlaying all this is of course our society and economy’s descent into what Berman calls Neo Feudalism. A very few rich control everything, served by a class of workers kept dangling just over starvation, with the mass of poor available in the wings to replenish the ranks should those workers complain or demand food and lives.

    America as anyone might recognize it based on the previous definition, will simply devolve out of existence.

    Now that was a hell of a lecture. We had a great dinner afterwards. I shall also note that Dr. Berman outdrank me two-to-one while still telling better jokes.



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  • Satire: NSA Quits Spying on Americans Out of Disgust

    August 26, 2014 // 6 Comments

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




    Citing an endless river of filth, vacuous conversations, idiotic Tweets and endless cat videos, the NSA announced it is “freaking done” with spying on Americans.

    The NSA decision came only hours after thousands of analysts, following similar threats at CIA, said they planned to quit and apply for jobs as Apple Geniuses and Best Buy Geek Squad workers.

    Speaking on background, one disgruntled NSA employee said “Go ahead, throw me in jail for an Espionage Act violation, that would be better than doing this job. Right after 9/11, my boss said we had to start monitoring all Americans’ electronic communications to find terrorists. So we did, plugging into Google for tens of thousands of personnel at NSA, and those two interns we assigned to Bing. At first we thought it was an anomaly that 64 percent of all Internet traffic was flowing to ‘BarelyLegalCheerleaders.com’ but the numbers tracked. Most of the rest of the web was shopping during work hours.”

    “And is all you talk about on your cells where you are and what you are doing at that second? Where was the ‘Mohammed, now we blow up the bridge and avenge the brothers’ stuff? No, instead it was 24/7 ‘I’m, yeah, at the mall. I might get an Orange Julius. LOL.’ You people even pronounce the term ‘LOL’ out loud as ‘lull’ as if it was a real word. Do you know what it’s like to listen to that all day? I’d rather clean the toilets at NSA but that job was already filled by some guy named Mohammed who didn’t even have a Facebook.”

    “Hacking into the TOR network was also a disappointment. We expected dirty bomb recipes and blueprints of government buildings being passed around, but instead it was all selfies from ComiCon, Hunger Games fan fiction, and terabytes of cat videos pumped out of Russia by Ed Snowden. That guy really has some free time since blowing the whistle on the NSA. Hah, and now we’re getting out of the domestic spying mission and the dude’s still trying to get NewEgg to ship to a Moscow address. Now that’s a proper LOL.”

    “Still we didn’t give up. Thinking all this Internet wastage was some sort of elaborate al Qaeda spoof, we really drilled down. Our conclusion as briefed to the White House: What the hell is wrong with these people? They spend all day looking at the most disgusting images ever created by humankind, really, really sick stuff. Even the jihadis we were trying to blackmail for looking at porn mostly stayed on meh celebrity bikini sites. The people assigned to the American division now all have PTSD and are in desensitization therapy. NSA even had to create a classified commendation medal to award them just to limit potential workplace-violence and OSHA lawsuits.”

    After a series of late-night meetings between worker reps from NSA and CIA, it was decided to threaten a mass walk-off if high-level action was not taken.

    “Initially the brass were all whining about national security and no more 9/11’s, but then we showed them some of the actual websites you people spend your time looking at. And from work, too. During the day in Washington DC alone 98 percent of the web traffic is from .gov addresses. We see a bunch of those people trying to access The Intercept, Firedoglake and Wikileaks, get blocked by the firewalls, and then spend the next 45 minutes figuring out a way around the software to get to ‘BuffDudes.com’ for the next half hour.”

    “After the bosses saw that, they immediately agreed to the changes requested. Hayden even entered the Cone of Silence and burped up his lunch. And you should see the garbage that guy looks at online for fun. I mean, we did. Whatever.”

    “So,” stated the official NSA spokesperson on background, “until you morons clean up your filthy minds and start planning terrorist stuff online, we will no longer be able to afford the human cost of spying on you. Heck, even if al Qaeda blew up Chicago, about two-thirds of you wouldn’t even notice as long as YouTube stayed online.”

    A spokesperson for the Department of Homeland Security stated her agency would continue to monitor every bit of web traffic, claiming the staff could not get enough of this stuff, and that many airport screeners had volunteered free overtime.



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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

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    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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  • War on Whistleblowers Moves to Supreme Court

    March 21, 2014 // 10 Comments

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

    The Obama administration opened a new front in its ongoing war on whistleblowers. It’s taking its case against one man, former Transportation Security Administration (TSA) Air Marshal Robert MacLean, all the way to the Supreme Court. So hold on, because we’re going back down the rabbit hole with the Most Transparent Administration ever.

    Despite all the talk by Washington insiders about how whistleblowers like Edward Snowden should work through the system rather than bring their concerns directly into the public sphere, MacLean is living proof of the hell of trying to do so. Through the Supreme Court, the Department of Justice (DOJ) wants to use MacLean’s case to further limit what kinds of information can qualify for statutory whistleblowing protections. If the DOJ gets its way, only information that the government thinks is appropriate — a contradiction in terms when it comes to whistleblowing — could be revealed. Such a restriction would gut the legal protections of the Whistleblower Protection Act and have a chilling effect on future acts of conscience.

    Having lost its case against MacLean in the lower courts, the DOJ is seeking to win in front of the Supreme Court. If heard by the Supremes — and there’s no guarantee of that — this would represent that body’s first federal whistleblower case of the post-9/11 era. And if it were to rule for the government, even more information about an out-of-control executive branch will disappear under the dark umbrella of “national security.”

    On the other hand, should the court rule against the government, or simply turn down the case, whistleblowers like MacLean will secure a little more protection than they’ve had so far in the Obama years. Either way, an important message will be sent at a moment when revelations of government wrongdoing have moved from the status of obscure issue to front-page news.

    The issues in the MacLean case — who is entitled to whistleblower protection, what use can be made of retroactive classification to hide previously unclassified information, how many informal classification categories the government can create bureaucratically, and what role the Constitution and the Supreme Court have in all this — are arcane and complex. But stay with me.  Understanding the depths to which the government is willing to sink to punish one man who blew the whistle tells us the world about Washington these days and, as they say, the devil is in the details.

    Robert MacLean, Whistleblower

    MacLean’s case is simple — and complicated.

    Here’s the simple part: MacLean was an air marshal, flying armed aboard American aircraft as the last defense against a terror attack. In July 2003, all air marshals received a briefing about a possible hijacking plot. Soon after, the TSA, which oversees the marshals, sent an unencrypted, open-air text message to their cell phones cancelling several months of missions for cost-cutting reasons. Fearing that such cancellations in the midst of a hijacking alert might create a dangerous situation for the flying public, MacLean worked his way through the system. He first brought his concerns to his supervisor and then to the Department of Homeland Security’s inspector general.  Each responded that nothing could be done.

    After hitting a dead end, and hoping that public pressure might force the TSA to change its policy, MacLean talked anonymously to a reporter who broadcast a critical story. After 11 members of Congress pitched in, the TSA reversed itself. A year later, MacLean appeared on TV in disguise to criticize agency dress and boarding policies that he felt made it easier for passengers to recognize marshals who work undercover. (On your next flight keep an eye out for the young man in khakis with a fanny pack and a large watch, often wearing a baseball cap and eyeing boarders from a first class seat.) This time the TSA recognized MacLean’s voice and discovered that he had also released the unclassified 2003 text message. He was fired in April 2006.

    When MacLean contested his dismissal through internal government channels, he discovered that, months after firing him, the TSA had retroactively classified the text message he had leaked. Leaking classified documents is more than cause enough to fire a federal worker, and that might have been the end of it. MacLean, however, was no typical cubicle-dwelling federal employee. An Air Force veteran, he asserted his status as a protected whistleblower and has spent the last seven years marching through the system trying to get his job back.

    How Everything in Government Became Classified

    The text message MacLean leaked was retroactively classified as “security sensitive information” (SSI), a designation that had been around for years but whose usage the TSA only codified via memo in November 2003. When it comes to made-up classifications, that agency’s set of them proved to be only one of 28 known versions that now exist within the government bureaucracy. In truth, no one is sure how many varieties of pseudo-classifications even exist under those multiple policies, or how many documents they cover as there are no established reporting requirements.

    By law there are officially only three levels of governmental classification: confidential, secret, and top secret. Other indicators, such as NOFORN and ORCON, seen for instance on some of the NSA documents Edward Snowden released, are called “handling instructions,” although they, too, function as unofficial categories of classification. Each of the three levels of official classification has its own formal definition and criteria for use. It is theoretically possible to question the level of classification of a document.  However much they may be ignored, there are standards for their declassification and various supervisors can also shift levels of classification as a final report, memo, or briefing takes shape. The system is designed, at least in theory and occasionally in practice, to have some modicum of accountability and reviewability.

    The government’s post-9/11 desire to classify more and more information ran head on into the limits of classification as enacted by Congress. The response by various agencies was to invent a proliferation of designations like SSI that would sweep unclassified information under the umbrella of classification and confer on ever more unclassified information a (sort of) classified status. In the case of the TSA, the agency even admits on its own website that a document with an SSI stamp is unclassified, but prohibits its disclosure anyway.

    Imagine the equivalent at home: you arbitrarily establish a classification called Spouse Sensitive Information that prohibits your partner from seeing the family bank statements. And if all this is starting to make no sense, then you can better understand the topsy-turvy world Robert MacLean found himself in.

    MacLean Wins a Battle in Court

    In 2013, after a long series of civil service and legal wrangles, the United States Court of Appeals for the Federal Circuit handed down a decision confirming the government’s right to retroactively classify information. This may make some sense — if you squint hard enough from a Washington perspective. Imagine a piece of innocuous information already released that later takes on national security significance. A retroactive classification can’t get the toothpaste back in the tube, but bureaucratically speaking it would at least prevent more toothpaste from being squeezed out. The same ruling, of course, could also be misused to ensnare someone like MacLean who shared unclassified information.

    The court also decided that, retrospective classification or not, MacLean was indeed entitled to protection under the Whistleblower Protection Act of 1989. That act generally limits its protections to “disclosures not specifically prohibited by law,” typically held to mean unclassified material. This, the court insisted, was the category MacLean fit into and so could not be fired. The court avoided the question of whether or not someone could be fired for disclosing retroactively classified information and focused on whether a made-up category like SSI was “classified” at all.

    The court affirmed that laws passed by Congress creating formal classifications like “top secret” trump regulations made up by executive branch bureaucrats. In other words, as the Constitution intended, the legislative branch makes the laws and serves as a check and balance on the executive branch. Congress says what is classified and that say-so cannot be modified via an executive branch memo. One of MacLean’s lawyers hailed the court’s decision as restoring “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 whistleblower protection rights.”

    The ruling made it clear that the TSA had fired MacLean in retaliation for a legally protected act of whistleblowing. He should have been offered his job back the next day.

    Not a Happy Ending But a Sad New Beginning

    No such luck. Instead, on January 27, 2014, the Department of Justice petitioned the Supreme Court to overturn the lower court’s decision. If it has its way, the next time a troublesome whistleblower emerges, the executive need only retroactively slap a non-reviewable pseudo-classification on whatever information has been revealed and fire the employee. The department is, then, asking the Supreme Court to grant the executive branch the practical power to decide whether or not a whistleblower is entitled to legal protection. The chilling effect is obvious.

    In addition, the mere fact that the DOJ is seeking to bring the case via a petition is significant. Such petitions, called writs of certiorari, or certs, ask that the Supreme Court overturn a lower court’s decision. Through the cert process, the court sets its own agenda. Some 10,000 certs are submitted in a typical year. Most lack merit and are quickly set aside without comment. Typically, fewer than 100 of those 10,000 are chosen to move forward for a possibly precedent-setting decision. However, only a tiny number of all the certs filed are initiated by the government; on average, just 15 in a Supreme Court term.

    It’s undoubtedly a measure of the importance the Obama administration gives to preserving secrecy above all else that it has chosen to take such an aggressive stance against MacLean — especially given the desperately low odds of success. It will be several months before we know whether the court will hear the case.

    This Is War

    MacLean is simply trying to get his old air marshal job back by proving he was wrongly fired for an act of whistleblowing.  For the rest of us, however, this is about much more than where MacLean goes to work.

    The Obama administration’s attacks on whistleblowers are well documented. It has charged more of them — seven — under the Espionage Act than all past presidencies combined. In addition, it recently pressured State Department whistleblower Stephen Kim into a guilty plea (in return for a lighter sentence) by threatening him with the full force of that act. His case was even more controversial because the FBI named Fox News’s James Rosen as a co-conspirator for receiving information from Kim as part of his job as a journalist. None of this is accidental, coincidental, or haphazard.  It’s a pattern.  And it’s meant to be.  This is war.

    MacLean’s case is one more battle in that war.  By taking the extraordinary step of going to the Supreme Court, the executive branch wants, by fiat, to be able to turn an unclassified but embarrassing disclosure today into a prohibited act tomorrow, and then use that to get rid of an employee. They are, in essence, putting whistleblowers in the untenable position of having to predict the future. The intent is clearly to silence them before they speak on the theory that the easiest leak to stop is the one that never happens. A frightened, cowed workforce is likely to be one result; another — falling into the category of unintended consequences — might be to force more potential whistleblowers to take the Manning/Snowden path.

    The case against MacLean also represents an attempt to broaden executive power in another way. At the moment, only Congress can “prohibit actions under the law,” something unique to it under the Constitution. In its case against MacLean, the Justice Department seeks to establish the right of the executive and its agencies to create their own pseudo-categories of classification that can be used to prohibit actions not otherwise prohibited by law. In other words, it wants to trump Congress. Regulation made by memo would then stand above the law in prosecuting — or effectively persecuting — whistleblowers. A person of conscience like MacLean could be run out of his job by a memo.

    In seeking to claim more power over whistleblowers, the executive also seeks to overturn another principle of law that goes by the term ex post facto. Laws are implemented on a certain day and at a certain time. Long-held practice says that one cannot be punished later for an act that was legal when it happened. Indeed, ex post facto criminal laws are expressly forbidden by the Constitution. This prohibition was written in direct response to the injustices of British rule at a time when Parliamentary laws could indeed criminalize actions retrospectively. While some leeway exists today in the U.S. for ex post facto actions in civil cases and when it comes to sex crimes against children, the issue as it affects whistleblowers brushes heavily against the Constitution and, in a broader sense, against what is right and necessary in a democracy.

    When a government is of, by, and for the people, when an educated citizenry (in Thomas Jefferson’s words) is essential to a democracy, it is imperative that we all know what the government does in our name. How else can we determine how to vote, who to support, or what to oppose? Whistleblowers play a crucial role in this process. When the government willfully seeks to conceal its actions, someone is required to step up and act with courage and selflessness.

    That our current government has been willing to fight for more than seven years — maybe all the way to the Supreme Court — to weaken legal whistleblowing protections tells a tale of our times. That it seeks to silence whistleblowers at a moment when their disclosures are just beginning to reveal the scope of our unconstitutional national security state is cause for great concern. That the government demands whistleblowers work within the system and then seeks to modify that same system to thwart them goes beyond hypocrisy.

    This is the very definition of post-Constitutional America where legality and illegality blur — and always in the government’s favor; where the founding principles of our nation only apply when, as, and if the executive sees fit. The devil is indeed in the details.




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  • ‘Zero Dark Thirty’ Leak Investigators Target of Leak Probe

    February 6, 2014 // 5 Comments

    Tags: , , , ,
    Posted in: Democracy

    Oh yes boys and girls, we’ve really deep down the rabbit hole now. Following up on our previous review of the movie Lone Survivor as a porno, it’s time to look back at the Best of War Porn and its aftermath.

    Kathryn Bigelow, the greatest Leni Reifenstahl-clone of our generation, made one of the most shameless war of terror movies of our generation, Zero Dark Thirty. In the course of two hours, Bigelow glamorized torture, killing and most other crimes committed by Das Homeland in the name of Freedumb. What made her orgy of horrors especially glamorous was the constant “rumors” in the media that she had had inside information from the Pentagon, juicy details of our Seal Team Crusaders and CIA torturers to fuel her blood lust cinema.

    Well, well, well me droogies, it was true. Not only were there leaks to the filmmakers, an investigation revealed the leakers were none other than former CIA Director and Secretary of Defense Leon Panetta and the Defense Department’s top intelligence official, Michael Vickers. Neither man faced any punishment or prosecution for their leaks of Top Secret or above information to persons without any security clearance who went on to put that information into a feature film released worldwide, including in Afghanistan, Pakistan and other terror hot-spots. All that alone speaks of the terrible double-standard that defines our government, and would be horrid enough on its own.

    Instead, we now learn that the Pentagon Inspector General’s Office is working to root out who might have disclosed the findings on Panetta and Undersecretary of Defense for Intelligence Michael Vickers to a nonprofit watchdog group and to McClatchy.

    The issue is controversial because the draft report’s findings on Panetta were sanitized from the version that was released to the public.

    I really can’t think of much more to say about all this. I think it speaks for itself. If you don’t understand what it says, however, I’ll spell it out: Leaks that make the government look good are good. Leaks that make the government look bad are punished under the Espionage Act and you will go to jail (ex. Manning) or be forced into exile (ex. Snowden). Hollywood Uber Alles!



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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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  • 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

    American Muslims Treated As Second-Class Citizens And Placed On No Fly List File Lawsuit

    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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