• 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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  • Free Speech in Peril as #Resistance Hero John Brennan Loses Security Clearance

    August 25, 2018 // 3 Comments

    Tags: , , ,
    Posted in: Democracy, Trump




    After leaking for a while, most boils dry up and go away. Not John Brennan.


    After President Donald Trump revoked his security clearance last week, John Brennan arose as a Hero of Free Speech. On Twitter he announced in terms designed to stir the corpses of the Founding Fathers “This action is part of a broader effort by Mr. Trump to suppress freedom of speech. My principles are worth far more than clearances. I will not relent.” Twelve former senior intelligence officials agree, calling Trump’s revocation “an attempt to stifle free speech.”

    No less than Ben Wizner, a director at the ACLU, stated “The First Amendment does not permit the president to revoke security clearances to punish his critics.” Even Republicans like Bob Corker, the retiring Senate Foreign Relations Committee chair said “It just feels like sort of a… banana republic kind of thing.” For emphasis, Corker also said the revocation was the kind of thing that might happen in Venezuela. Referring to a list of other former Obama officials whose clearances Trump may revoke, Senator Mark Warner, the top Democrat on the Intelligence Committee, said “It was almost… a Nixonian enemies list.” Admiral William McRaven, former SEAL and bin Laden killing superhero said of Trump’s revocation “Through your actions, you have embarrassed us in the eyes of our children.” A letter to the New York Times demanded a military coup to end Trump’s reign.


    Relax. The only danger here is to John Brennan’s credibility as a #McResistance-Pop Idol.

    Over five million Americans, more than the population of Costa Rica, Ireland or New Zealand, hold a security clearance. When a cleared person honorably leaves government, they usually retain their status. Ostensibly to allow them to be available to help out their successors, in fact most people depart with clearances as part of a gravy train. High level clearances take time and cost a lot of money to obtain. Retired, cleared, federal employees can instead slide into a range of contractor jobs, often at multiples of their old salaries. Others use their clearances to garner information from old colleagues and put that to vaguely legal use at think tanks, universities, and as media analysts. All about the Benjamins.

    Now that’s not to say once out of government a former employee can run around openly sharing secrets. What senior officials can do, and Brennan is pack leader, is become a “source” for journalists, an unpaid position albeit one of extraordinary political power. Next is to become a paid commentator, as Brennan also has, where he can imply, suggest, and allude to classified information to bolster his credibility. If you just could see what I can see, the line goes, as the audience fills in the blanks — he says it’s just his opinion, but this is a guy who knows.

    But that is nothing particularly unique to Brennan. To fully understand the real impact of his losing his security clearance, one has to understand the role Brennan plays in the destroy Trump ecosystem.

    If Special Counsel Robert Mueller is the guy at the table who chooses his words carefully even while not saying much, Brennan is the Drunk Uncle, the one blurting out crazy stuff that would be embarrassing except you want so desperately to believe him. Mueller has, to the anti-Trump family, been a real disappointment. Already into his second year of an investigation that seems to have no end in sight, Mueller is off somewhere mopping up Paul Manafort’s financial naughtiness from a decade ago, which doesn’t appear to have anything to do with the Big One, “collusion.” Unless he’s planning to drop the Bomb just ahead of the midterms and ignite a full-on war over interference in the American political process, Mueller is pretty much on ice until, maybe, if the Democrats improbably score a lot of new seats in November, the end of the year.

    Not Uncle John. Within hours of losing his clearance and ostensibly some of his free speech rights, Brennan appeared in the New York Times announcing “Trump’s claims of no collusion are, in a word, hogwash.” And about that security clearance? Brennan plays with us, stating “While I had deep insight into Russian activities during the 2016 election, I now am aware — thanks to the reporting of an open and free press — of many more of the highly suspicious dalliances of some American citizens with people affiliated with the Russian intelligence services.”

    Bang! Brennan mentions his “deep insight” from 2016, implying classified stuff, then he saves himself from an Espionage Act charge by saying it’s really all from just reading the news.


    The does-he-or-doesn’t-he game adds shady credibility as Brennan spews up factless “opinions” elsewhere like “I think [Trump] is afraid of the president of Russia. The Russians may have something on him personally.” Brennan, with all his access to tippy top secret stuff, would know, even if he couldn’t tell us just now, right? He might as well be peddling a revised version of 2002’s WMD tall tale.

    Of course the punch line is if there was anything for Brennan to really know, Mueller and all of the CIA already also know, and just haven’t gotten around to acting on it in the last couple of years. So how do you keep a politically useful story alive in the absence of conclusive evidence? John Brennan. The ever-pliant media has been quick to pick up on Brennan’s value. Writing about the clearance revocation, the Washington Post reminds Brennan absolutely knows the truth — “Trump was frightened — and remains so to this day — about just how much Brennan knows about his secrets. And by that, I don’t just mean his dealings with Russian oligarchs and presidents but the way he moved through a world of fixers, flatterers and money launderers. What does Brennan know? What did he learn from the CIA’s deep assets in Moscow, and from liaison partners such as Britain, Israel, Germany and the Netherlands?”

    And that’s why Brennan wants his security clearance, and the media wants him to have it. He wants the flexibility to leak juicy real bits of secrets to the press, while overtly hinting he knows the whole story to the public, sealing the deal with a wink. Mueller is the stern dad who may or may not come through. The rotating cast of rubes — Stormy Daniels, Michael Avenatti, Tom Arnold, Omarosa — are jesters to keep the story alive with cheap entertainment. Brennan is the big voice who coughs up Trump attacks for the media’s Scooby treats these days, driving the narrative. Brennan as a true Deep State actor implies proof without ever producing proof. Spewing capital charges without evidence, hoping the accusations alone do damage is pure McCarthyism and Brennan has learned history’s lesson from that period even if we, and the media, have not.

    Brennan needed that security clearance as a hedge against sounding like the old man shouting at Trump to get off his lawn in his stream-of-consciousness rants on Twitter. The media needed him to have it so he appeared credible enough for the front pages. Implied access to the real classified story is the only thing that separated Brennan from every other Russiagate conspiracist cluttering up social media.


    Is it all political? Sure. What was the point of Brennan, or other Obama-era officials unlikely to be consulted by the Trump administration, of having clearances that outlived their government tenure anyway? Brennan in particular was using his security clearance to monetize his experience, and to bolster his opinions with the tang of inside knowledge. There is no government interest in any of that, and the government has no place allowing Brennan to hold a clearance for his own profit. Shutting him down preserves the whole point of issuing anyone a clearance, granting them access to America’s secrets so that they can do Uncle Sam’s work. A clearance isn’t a gift, it’s a tool issued by the government to allow employees to get some work done. Brennan is working now only for himself, and deserved to lose his clearance.

    BONUS!

    “The fact that the president did this himself leaves him open to the criticism that it looks politically motivated,” said Fran Townsend, George W. Bush’s homeland security adviser. “The notion that you’re going pull somebody’s clearance because you don’t like what they did in government service or you don’t like what they say is deeply disturbing and very offensive.”

    Twelve former intelligence officials signed a statement criticizing Trump’s decision to revoke the clearance, claiming “We have never before seen the approval or removal of security clearances used as a political tool, as was done in this case… this action is quite clearly a signal to other former and current officials to stay silent.”

    I’d be tempted to agree, except that those statements are completely wrong. My clearance was revoked in 2011 for political reasons, and to silence me and others, as part of the Obama war on whistleblowers. And I wasn’t alone. Jesselyn Radack then of The Government Accountability Project wrote “Peter Van Buren is the latest casualty of this punitive trend. The government suspended his top-secret security clearance – which he has held for 23 years – over linking,not leaking to a WikiLeaks document on his blog and publishing a book critical of the government. As a whistleblower attorney, this has happened to numerous clients who have held security clearances for decades, but dare to say something critical of the government. Like with Thomas Drake, Bill Binney, Kirk Wiebe, Franz Gayl, and numerous clients, these life-long public servants have had their security clearances suspended. So these folks who have been in possession of security clearances for decades suddenly ‘raise serious security concerns’ because they criticize the government.”



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  • Ban Trump, Twitter and Free Speech

    August 23, 2018 // 59 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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  • Five Bad Arguments to Restrict Speech

    August 20, 2018 // 31 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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  • Corporate Censorship Brought Us the America I Always Feared

    August 13, 2018 // 4 Comments

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    Posted in: Democracy, Post-Constitution America, Trump

    When I was in Iran earlier this year, the government there blocked Twitter, deciding for a whole nation what they can not see. In America, Twitter purges users, deciding for a whole nation what they can not see. It matters little whose hand is on the switch, the end result is the same. This is the America I always feared I’d see.

    Speech in America is an unalienable right, and goes as deep into the concept of a free society as any idea can. Thomas Jefferson wrote of the right flowing from his notion of a Creator, not from government. Jefferson’s 18th century invocation is understood now as less that free speech is heaven-sent and more that it is something existing above government. And so the argument the First Amendment applies only to government and not to all public speaking (including private platforms like Twitter) is thus both true and irrelevant, and the latter is more important.

    The government remains a terrifying threat to free speech. An Espionage Act prosecution against Wikileaks’ Julian Assange will create precedent for use against any mainstream journalist. The war on whistleblowers which started under Obama continues under Trump. Media are forced to register as propaganda agents. Universities restrict controversial speakers. The Trump administration no doubt will break the record (77%) for redacting or denying access to government files under the Freedom of Information Act.

    But there is another threat to freedom of speech now, corporate censorship. It is often dressed up with NewSpeak terms like deplatforming, restricting hate speech, or simply applying Terms of Service. Corporations always did what they wanted with speech. Our protection against corporate overreach used to rely on an idea Americans once held dear, enshrined as “I disapprove of what you say, but I will defend your right to say it.” The concept was core to a democracy: everyone supports the right of others to throw ideas into the marketplace independent. An informed people would sort through it all, and bad ideas would be pushed away by better ones. That system more or less worked for 240 years.

    For lack of a more precise starting point, the election of Donald Trump did away with near-universal agreement on defending the right to speak without defending the content, driven by a belief too much free speech helped Trump get elected. Large numbers of Americans began not just to tolerate, but to demand censorship. They wanted universities to deplatform speakers they did not agree with, giggling over the fact the old-timey 1A didn’t apply and there was nothing “conservatives” could do. They expressed themselves in violence, demanding censorship by “punching Nazis.” Such brownshirt-like violence was endorsed by The Nation, once America’s clearest voice for freedom. The most startling change came within the American Civil Liberties Union, who enshrined the “defend the right, not the speech” concept in the 1970s when it defended the free speech rights of Nazis, and went on to defend the speech rights of white supremacists in Charlottesville.

    Not so much anymore. The ACLU now applies a test to the free speech cases it will defend, weighing their impact on other rights (for example, the right to say the N-word versus the rights of POC.) The ACLU in 2018 is siding with those who believe speech can be secondary to other political goals. Censorship has a place, says the ACLU, when it serves what they believe is a greater good.

    A growing segment of public opinion isn’t just in favor of this, it demands it. So when years-old tweets clash with 2018 definitions of racism and sexism, companies fire employees. Under public pressure, Amazon removed “Nazi paraphernalia and other far-right junk” from its online store. It was actually just some nasty Halloween gear and Confederate flag merch, but the issue is not the value of the products — that’s part of any free speech debate — it’s corporate censorship being used to stifle debate by literally in this case pulling things out of the marketplace.

    Alex Jones’ InfoWars was deplatformed off download sites where it has been available for years, including Apple, YouTube (owned by Google), Spotify, and Amazon, for promoting “hate speech.” Huffington Post wondered why more platforms, such as Instagram, haven’t done away with Jones and his hate speech.

    That term, hate speech, clearly not prohibited by the Supreme Court, is an umbrella word now used by censorship advocates for, well, basically anything they don’t want others to be able to listen to or watch. It is very flexible and thus very dangerous. As during the McCarthy-era in the 1950s when one needed only to label something “Communist” to have it banned, so it is today with the new mark of “hate speech.” The parallels are chilling — it was in the McCarthy-era Hollywood created its infamous blacklists, actors and writers who could not work because of their political beliefs.

    Twitter is perhaps the most infamous platform to censor its content. The site bans advertising from Russian media outlets RT and Sputnik. Twitter suspends the accounts of those who promote (what it defines as) hate and violence, “shadow bans” others to limit their audience, and tweaks its trending topics to push certain political ideas and downplay others. It regularly purges users and bans “hateful symbols.” There are near-daily demands by increasingly organized groups calling on Twitter to censor specific users, with Trump at the top of that list. The point is always the same: to limit what ideas you can be exposed to and narrow debate.

    Part of the 2018 problem is the trust people place in “good companies” like Amazon, Facebook, and Twitter. Anthropomorphizing them as Jeff, and Zuck, and @jack is popular, along with a focus on their “values.” It seems to make sense, especially now when many of the people making decisions on corporate censorship are the same age and hold the same political views as those demanding they do it.

    Of course people age, values shift, what seems good to block today might change. But the main problem is companies exist to make money and will do what they need to do to make money. You can’t count on them past that. Handing over free speech rights to an entity whose core purpose has nothing to do with free speech means they will quash ideas when they conflict with what they are really about. People who gleefully celebrate the fact that @jack who runs Twitter is not held back by the 1A and can censor at will seem to believe he will always yield his power in the way they want him to.

    Google has a slogan reading “do no evil.” Yet in China Google will soon deploy Dragonfly, a version of its search engine that will meet Beijing’s demands for censorship by blocking websites on command. Of course in China they don’t call it hate speech, they call it anti-societal speech, and the propaganda Google will block isn’t from Russian bots but from respected global media. In the U.S. Google blocks users from their own documents saved in Drive if the service feels the documents are “abusive.” Backin China Apple removes apps from its store on command of the government in return for market access. Amazon, who agreed to remove hateful merch from its store in the U.S., the same week confirmed it is “unwaveringly committed to the U.S. government and the governments we work with around the world” using its AI and facial recognition technology to spy on their own people. Faced with the loss of billions of dollars, as was the case for Google and Apple in China, what will corporations do in America?

    Once upon a time an easy solution to corporate censorship was to take one’s business elsewhere. The 2018 problem is with the scale of platforms like Amazon, near global monopolies all. Pretending Amazon, which owns the Washington Post, and with the reach to influence elections, is just another company that sells things is to pretend the role of unfettered debate in a free society is outdated. Yeah, you can for now still go through hoops to download stuff outside the Apple store or Google Play, but those platforms more realistically control access to your device. Censored on Twitter? No problem big guy, go try Myspace, and maybe Bing will notice you. Technology and market dominance changed the nature of censorship so free speech is as much about finding an audience as it is about finding a place to speak. Corporate censorship is at the cutting edge of a reality targeting both speakers (Twitter suspends someone) and listeners (Apple won’t post that person’s videos made off-platform). Ideas need to be discoverable to enter the debate; in 1776 you went to the town square. In 2018 it’s Twitter.

    In the run up to the midterm elections, Senator Chris Murphy, ironically in a tweet, demanded social media censor more aggressively for the “survival of our democracy,” implying those companies can act as proxies for those still held back by the First Amendment. We already know the companies involved can censor. The debate is over what happens when they do.

    A PERSONAL NOTE: Some readers are aware I have been permanently suspended from Twitter as @wemeantwell. This followed exchanges with several mainstream journalists over their support for America’s wars and unwillingness to challenge government lies. Twitter sent an auto-response saying what I wrote “harasses, intimidates, or uses fear to silence someone else’s voice.” I don’t think I did any of that, and I wish you didn’t have to accept my word on it. I wish instead you could read what I wrote and decide for yourself. But Twitter won’t allow it. Twitter says you cannot read and make up your own mind. They have in fact eliminated all the things I have ever written there over seven years, disappeared me down the Memory Hole. That’s why all censorship is wrong; it takes the power to decide what is right and wrong away from you and gives it to someone else.

    I lost my career at the State Department because I spoke out as a whistleblower against the Iraq War. I’ve now been silenced, again, for speaking out, this time by a corporation. I am living in the America I always feared.

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  • Why I Support Julian Assange (And Why You Should Too)

    July 19, 2018 // 15 Comments

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



    This weekend I joined a number of people in an online vigil in support of Wikileaks’ Julian Assange.

    People ask why I did it; Assange is at best imperfect in who he is and what he does. But supporting him transcends him, because the battle over the prosecution of Assange is where the future of free speech and a free press will be decided. Even if you think Assange doesn’t matter, those things do.


    Assange is challenging to even his staunchest supporters. In 2010 he was a hero to opponents of the wars in Iraq and Afghanistan. Others called him an enemy of the state for working with whistleblower Chelsea Manning. Now most of Assange’s former supporters see him as a enemy of the state and Putin tool for releasing the Democratic National Committee emails. Even in the face of dismissed charges of sexual assault, Assange is a #MeToo villain. He a traitor who hides from justice inside the Ecuadorian embassy in London, or a spy, or some web-made Frankenstein with elements of all of the above. And while I’ve never met Assange, I’ve spoken to multiple people who know him well, and the words generous, warm, or personable rarely are included in their descriptions. But none of that really matters.

    Support is due because Assange ends up being the guy standing at a crossroads in the history of our freedoms – specifically, at what point does the need for the people to know outweigh laws allowing the government to keep information from view? The question isn’t new, but becomes acute in the digital age, where physical documents no longer need to be copied one-by-one, can be acquired by hackers from the other side of the world, and where publishing is far removed from the traditions, obstacles, safeguards, and often-dangerous self-restraint of traditional journalism.


    A complex history precedes Assange. In 1971 Daniel Ellsberg leaked the Pentagon Papers, a secret U.S. government-written history of the Vietnam War, to the New York Times. No one had ever published such classified documents before, and reporters at the Times feared they would go to jail under the Espionage Act. A federal court ordered the Times to cease publication after an initial flurry of excerpts were printed, the first time in U.S. history a federal judge censored a newspaper. In the end the Supreme Court handed down a victory for the First Amendment in New York Times Company v. United States and the Times won the Pulitzer Prize.

    But looking at the Times case through the lens of Wikileaks, law professor Steve Vladeck points out “although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause… The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”

    The Supreme Court left the door open to prosecute journalists who publish classified documents by focusing narrowly on prohibiting the government from exercising prior restraint. Politics and public opinion, not law, has kept the government exercising discretion in not prosecuting journalists, a delicate dance around this 800 pound gorilla loose in the halls of democracy. The government meanwhile has aggressively used the Espionage Act to prosecute the whistleblowers who leaked to those same journalists.


    The closest things came to throwing a journalist in jail was in 2014, when the Obama administration subpoenaed New York Times reporter James Risen. The government accused former CIA officer Jeffrey Sterling of passing classified information to Risen, information it said appeared in his book State of War. After a lower court ordered Risen under threat of jail to testify and disclose his source, the Supreme Court turned down Risen’s appeal, siding with the government in a confrontation between a national security prosecution and an infringement of press freedom. The Supreme Court refused to consider whether there existed a gentlemen’s agreement under the First Amendment for “reporter’s privilege,” an undocumented protection beneath the handful of words in the free press clause.

    In the end the government, fearful of setting the wrong precedent, punted on Risen. Waving the flag over a messy situation, then-Attorney General Eric Holder announced “no reporter who is doing his job is going to go to jail.” Risen wasn’t called to testify and was not punished for publishing classified material, even as the alleged leaker, Jeffrey Sterling, disappeared into jail. To avoid the chance of a clear precedent that might have granted some form of reporter’s privilege under the Constitution, the government stepped away from the fight. The key issues now wait for Julian Assange.


    Should the government prosecute Julian Assange, there are complex legal questions to be answered about who is a journalist and what is publishing in the digital world. There is no debate over whether James Risen is a journalist, and over whether a book is publishing. Glenn Greenwald has written about and placed online classified documents given to him by Edward Snowden, and has never been challenged by the government as a journalist or publisher. Both men enjoy popular support, and work for established media. The elements of fact checking, confirming, curating, redacting, and in writing context around the classified information, were all present in the New York Times’ case with the Pentagon Papers, and are present with American citizens Risen and Greenwald. Definitions and precedent may be forming.

    Assange is an easier target. The government has the chance to mold the legal precedents with such certainty that they may seize this case where they have backed away from others in the long-running war of attrition against free speech and the press.

    Assange isn’t an American. He is unpopular. He has written nothing alongside the millions of documents on Wikileaks, has done no curating or culling, and has redacted little information. Publishing in his case consists of simply uploading what has been supplied to him. It would be easy for the government to frame a case against Assange that set precedent he is not entitled to any First Amendment protections simply by claiming clicking UPLOAD isn’t publishing and Assange isn’t a journalist. The simplest interpretation of the Espionage Act, that Assange willfully transmitted information relating to the national defense without authorization, would apply. Guilty, same as the other canaries in the deep mineshaft of Washington, DC before him, no messy balancing questions to be addressed. And with that, a unique form of online journalism would be squashed.


    And that really, really matters. Wikileaks sidesteps the restraints of traditional journalism. Remember in 2004 the New York Times held the story of George W. Bush’s illegal warrantless eavesdropping program until after his reelection. In 2006 the Los Angeles Times suppressed a story on wiretaps of Americans when asked by the NSA. Glenn Greenwald said it plainly: too many journalists work in self-censoring mode, “obsequious journalism.” Meanwhile Assange has made mistakes while broadly showing courage, not restraint, under similar circumstances. The public is better informed because of it.

    Wikileaks’ version of journalism says here are the cables, the memos, and the emails. Others can write about them (and nearly every mainstream media outlet has used Wikileaks to do that, some even while calling Assange a traitor), or you as a citizen can simply read the stuff yourself and make up your own damn mind. That is the root of an informed public, through a set of tools never before available until Assange and Internet created them.

    If Assange becomes the first successful prosecution of a third party, as a journalist or not, under the Espionage Act, the government can turn that precedent into a weapon to attack the media’s role in any national security case. On the other hand, if Assange can leave London for asylum in Ecuador, that will empower new journalists to provide evidence when a government serves its people poorly and has no interest in being held accountable.

    Freedom is never static. It either advances under our pressure, or recedes under theirs. I support Julian Assange.




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  • Julian Assange and the Future of a Free Press (Long Form)

    July 18, 2018 // 4 Comments

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    Posted in: Democracy



    This weekend I joined a number of people including Dan Ellsberg, John Kiriakou, Scott Horton, and Caitlin Johnstone in a 38 hours online vigil in support of Wikileaks’ Julian Assange. People ask why I did it, because Julian Assange and his Wikileaks organization are at best imperfect in who they are and what they do. But those imperfections are both of interest and do not matter. Supporting him transcends him, because the battle over the prosecution of Assange is where the future of free speech and a free press in the digital age will be decided. Even if you think Assange doesn’t matter, those things do.

    Supporting Julian Assange and Wikileaks is complicated. In 2010 a hero to then-opponents of American imperialism in Iraq and Afghanistan while being labeled by others as an enemy of the state for working with whistleblower Chelsea Manning, today most of Assange’s former supporters from the left see him as a enemy of the state for allegedly working with Vladimir Putin to leak the Democratic National Committee emails. Many who opposed Assange’s work from the right now support him for helping defeat Hillary Clinton. Assange is a traitor who runs from justice, or a journalist, or a hero, or a spy, or some Frankenstein with elements of all of the above. And while I’ve never met Assange, I’ve spoken to multiple people who know him well, and the words generous, warm, or personable rarely are included in their descriptions.

    Assange’s biography is challenging to even his staunchest supporters. After Wikileaks’ release of a half million highly classified documents in 2010, including evidence of war crimes and thousands of State Department internal cables, Assange was accused of sexual assault in Sweden under ambiguous circumstances. He was questioned there, but never charged or arrested, and left for the UK. The Swedes decided to continue their investigation, but instead of exercising options via Interpol to question Assange in the UK, instead insisted their inquiries could only be made on Swedish soil and requested the UK return Assange against his will. The British arrested Assange, though he was released on bail. Fearing the whole thing was a set-up to extradite him to the U.S. via Sweden, Assange jumped bail. Fearing the same faux process would see Britain send him to the U.S., Assange then obtained asylum, and later citizenship, from the Ecuadorian embassy in London. After claiming for years they could never interview him outside of Sweden, the Swedes reversed themselves and interviewed Assange in London in 2016. They soon dropped the charges. Britain meanwhile still plans to arrest Assange for failing to appear in court for an eight year old case that basically no longer exists, and will not assure him safe passage out of the UK. Assange has been living inside the Ecuadorian embassy for over five years.

    Contrary to popular belief, embassies are not the sovereign territory of their owners. However, the 1961 Vienna Convention on Diplomatic Relations codified a custom that has been in place for centuries when it established the “rule of inviolability.” This prohibits local police from entering an embassy for any purpose without the permission of the ambassador. This is why Assange is safe from arrest as long as he stays within the walls of the Ecuadorian embassy, and of course in their good graces.

    The idea of a lengthy stay inside an embassy for asylum is not new. The longest such episode was that of Hungarian Cardinal Jozsef Mindszenty, who spent 15 years inside the American Embassy in Budapest, protected from the Soviet Union. In 1978 Russian Pentecostalists broke into the American Embassy in Moscow, demanding protection from religious persecution. They lived in the embassy basement for five years before a deal sent them to Israel. In 1989, Chinese dissident Fang Li-zhi resided in the American Embassy in Beijing for a year before being allowed to travel to the United States. More recently, in 2012, blind Chinese dissident Chen Guang-cheng spent six days in the American Embassy in Beijing, before then-Secretary of State Hillary Clinton negotiated his safe passage to the U.S. The irony is in all those incidents, the United States was the protector. America today instead looks petty and mean standing alongside Soviet Russia and Communist China in pressing hard against one man aside the broader wave of history.

    Should some process deliver Assange into American custody, he would be charged under the Espionage Act, a 1917 law used aggressively by the Obama administration to prosecute whistleblowers, including Chelsea Manning, and by the Trump administration to prosecute whistleblower Reality Winner. Under the Act, Assange would be prohibited from offering a “public interest” defense; his unauthorized possession of classified materials alone would ensure a guilty verdict, in that the Act does not distinguish between possession for journalistic purposes to inform the public, and possession say with the intent to hand over secrets to Russian intelligence. Assange, as with the others prosecuted under the Espionage Act (Edward Snowden would face similar circumstances on trial in America), would be found guilty and simultaneously be denied the chance to defend himself based on a free speech/public interest defense. The Espionage Act was created long before anyone coined the phrase Catch-22, but it seemed to have that spirit in mind.

    But support for Assange, as for Snowden and other whistleblowers yet unnamed, is due because the stakes go far beyond one person’s rights and freedoms. What happens to Julian Assange will set precedent regarding free speech, freedom of the press, and the publication of classified and suppressed documents in pursuit of an informed public and representative accountability for many years to come.

    The Espionage Act has a sordid history, having once been used against the government’s political opponents. Targets included labor leaders and radicals like Eugene V. Debs, Bill Haywood, Philip Randolph, Victor Berger, John Reed, Max Eastman, and Emma Goldman. Debs, a union leader and socialist candidate for the presidency, was, in fact, sentenced to 10 years in jail for a speech attacking the Espionage Act itself. The Nixon administration infamously (and unsuccessfully) invoked the Act to bar the New York Times from continuing to publish the classified Pentagon Papers.

    Assange poses a dilemma for the United States in its ongoing push-pull in balancing the power of the government to protect classified information (rightly or wrongly), the clear guarantees to free speech and a free press in the First Amendment, and the broader concept of the need for an informed populace to challenge their government and make a peoples’ democracy work in practice.

    At what point does the need for the people to know outweigh any laws allowing the government to keep it from view, such that someone may expose information, despite its classification? If punishment appears necessary, should the thief be punished, should the journalist who publishes it be punished, or should neither, or should both? The questions become acute in the digital age, where physical documents no longer need to be copied one-by-one, and where publishing is far removed from the traditions, obstacles, safeguards, backdoor pressures, self-restraint, and occasional deep subject matter knowledge of traditional journalism.

    A complex and at times ambiguous history precedes Assange. In 1971 Daniel Ellsberg leaked the classified Pentagon Papers to the New York Times. The Papers were a 7,000 page classified history of the Vietnam War prepared under the order of then-Secretary of Defense Robert McNamara. We know now McNamara, while publicly supporting the war, was privately consumed by doubt, and ordered the Papers written as his act of contrition.

    The risks for journalists were huge — no one had ever published such classified documents before, and the senior staff at the Times feared they would go to jail under the Espionage Act. The Nixon administration found a court to order the Times to cease publication after an initial flurry of excerpts were printed in June 1971, the first time in U.S. history a federal judge censored a newspaper. Things got so dicey the Times’ outside counsel actually quit the night before his first appearance in court, claiming the newspaper, his own client, had indeed broken the law.

    Despite such pessimism, the Supreme Court handed down a landmark victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ellsberg was charged under the Espionage Act, though his case was dismissed for gross governmental misconduct and illegal evidence gathering without the underlying issues being addressed, most prominently Ellsberg’s defense he was morally compelled to leak the classified information to the Times, claiming “I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public.”

    But looking at the Times case through the lens of Wikileaks, University of Texas law professor Steve Vladeck is careful to point out “Although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause… The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”

    In its simplest form, the Supreme Court left the door open for the government to prosecute both the leaker who takes the documents (by dismissing the case without setting a precedent) and the journalists who publish them (by focusing narrowly on prohibiting the government from exercising prior restraint.)

    What has happened since has been little more than a very delicate dance around the 800 pound gorilla in the halls of democracy. The government has aggressively prosecuted whistleblowers under the Espionage Act (The Obama administration prosecuted eight whistleblowers under the Espionage Act, more than all previous presidential administrations combined) while choosing not to prosecute journalists for publishing what the whistleblowers hand over to them.

    In one of the first of a series of attempts to make journalists reveal their sources, former Fox News reporter Mike Levine stated 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.

    The closest things came to throwing a journalist in jail over classified information was in 2014, when Obama administration Attorney General Eric Holder gave federal prosecutors permission to subpoena New York Times reporter James Risen regarding a former employee of the Central Intelligence Agency. The government accused former CIA officer Jeffrey Sterling of passing classified information to Risen, information it said appeared in his 2006 book State of War. Holder issued the subpoena in line with his July 2013 Department of Justice guidelines on seeking information from the news media. That guidance sought to circumvent a court precedent being set by providing limited, discretionary protection for the media in some civil and criminal proceedings following scandals involving the DOJ seizing phone records and emails of reporters from the Associated Press and Fox News.

    Risen refused to comply with the subpoena, which would have required him to disclose his source. After a lower court ordered Risen under threat of jail time to testify, the Supreme Court in June 2014 turned down Risen’s appeal. That left him facing a choice to reveal his source or go to jail. The Court’s one-line order gave no reasons but effectively sided with the government in a confrontation between securing evidence in a national security prosecution and an intolerable infringement of press freedom. The Supreme Court refused to consider whether there existed a sort of gentlemen’s agreement under the First Amendment for “reporter’s privilege,” an undocumented protection beneath the handful of words in the free press clause. By not making a new decision, the Court effectively upheld the existing decision by a federal appeals court finding that the Constitution does not give journalists special protection from the law.

    That decision was more or less in line with the ambiguous way the Supreme Court has always looked at the unwritten special protections for journalists. The only real ruling on what special rights the media may hold under the free press clause came in 1972, in Branzburg v. Hayes. The Court decided reporters were not shielded from grand jury subpoenas, asserting judges must strike a “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony.” From time to time lower courts have chosen to interpret that phrase as meaning there is indeed some sort of unwritten balancing test concerning the media, while other courts have read the same words to mean media should be compelled to testify.

    In the end of the Risen case, the government, fearful of setting the wrong precedent and confident it otherwise had the evidence to convict Jeffrey Sterling, punted. Waving the flag noblely over a messy situation, Attorney General Holder announced “As long as I am attorney general, no reporter who is doing his job is going to go to jail.” Federal prosecutors asked the U.S. District Court in Alexandria, Virginia to “exclude James Risen as an unavailable witness” and said the jury “should draw no inferences, favorable or unfavorable” based on his absence as a witness.

    Risen didn’t testify, and was not punished for publishing classified material by the government’s choice to back away from his case. The alleged leaker, Jeffrey Sterling, was thrown into jail for over two years. In 2015 Google turned over the Gmail account and metadata of a WikiLeaks employee in response to a federal warrant.

    No court precedent was set. The door was left open. To avoid a clear precedent that would grant journalists a reporter’s privilege under the Constitution, the government stepped away from the fight. While the balancing question of the “public interest” has been poked at in other contexts, no one has shown where the balancing point is between the government’s need to protect information, a citizen’s right to expose information, and the media’s right to publish it. That all waits for Julian Assange.

    Should the government bring Espionage Act charges against Julian Assange, there are complex legal questions to be answered about what if any First Amendment protections if any apply. Assange is not an American citizen and was not under U.S. jurisdiction when his actions regarding classified documents occurred. Is the fact that Wikileaks’ servers reside outside the United States and thus outside the protections of the First Amendment controlling, or does cyberspace lack such boundaries? By the way they chose to bring their case, government attorneys can influence how legal precedent is set on those matters. And if the United States can prosecute someone under those circumstances, any other government could demand foreign reporters anywhere on earth be extradited for violating their laws.

    The question also exists of who is a journalist and what is publishing in the digital world where thousands of files can be uploaded to a site instead of waiting for printing presses to run off copies. There is no debate over whether James Risen is a journalist, and over whether producing a book is publishing. Glenn Greenwald, Jeremy Scahill, and The Intercept, who have for years been writing about and placing online highly classified documents given to them by Edward Snowden, have never been challenged by the government as “journalists” or “publishers.” The elements of fact checking, confirming, curating, redacting, and in writing context around the classified information, were present in the New York Times’ case with the Pentagon Papers, and are present with Risen and Greenwald, et al. All involved are American citizens.

    Almost none of that applies to Assange. He has written nothing alongside the millions of documents on Wikileaks, has done no curating or culling, and has redacted information at times and not at others. Publishing in his case consists of simply uploading what has been supplied to him to a website. It would be easy for the government to frame a case against Assange that set precedent he is not entitled to any First Amendment or reporter’s privilege protections whatever they may be — clicking UPLOAD isn’t publishing and Assange isn’t a journalist. The simplest interpretation of 18 U.S.C. § 793(e) in the Espionage Act, that Assange willfully transmitted information relating to the national defense without authorization would apply. Guilty, same almost all of the leakers, whistleblowers, data thieves, hackers, and other canaries in the deep mineshaft of Washington, DC before him.

    And that really, really matters. Wikileaks sidestepped the restraints of traditional journalism to bring the raw material of history to the people. Never mind whether or not a court determined disclosure of secret NSA programs which spied on Americans disclosure was truly in the public interest. Never mind the New York Times got a phone call from the President and decided not to publish something. Never mind how senior government officials are allowed to selectively leak information helpful to themselves. Never mind what parts of an anonymous technical disclosure a reporter understood well enough to write about, here are the cables, the memos, the emails, the archives themselves. Others can write summaries and interpretations if they wish (and nearly every mainstream media outlet has used Wikileaks to do that, some even while calling Assange and his sources traitors), or you as an individual can simply read the stuff yourself and make up your own damn mind about what the government is doing. Fact checks? There are the facts themselves in front of you. That is the root of an informed public, through a set of tools and freedoms never before available until the Wikileaks and Internet created them.

    Allowing these new tools to be broken over the meaning of the words journalist and publishing will stifle all of the press. If Assange becomes the first successful prosecution of a third party under the Espionage Act, the government can then turn that precedent into a weapon to aggressively attack the media’s role in say national security leaks. Is a reporter, for example, publishing a Signal number and asking for government employees to leak to her in fact soliciting people to commit national security felonies? Will media employees have to weigh for themselves the potential public interest, hoping to avoid prosecution if they differ from the government’s opinion? The government in the case of Assange may see the chance to mold the legal precedents with such certainty that they will seize this chance where they have backed away from others. The Assange case may prove to be the topper in a long-running war of attrition against free speech.

    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. Glenn Greenwald said it plainly: too many journalists have gone into a self-censoring mode, practicing “obsequious journalism.”

    Assange, and those who follow him in this new paradigm of journalism and publishing, have made mistakes while broadly showing courage, not restraint, under similar circumstances and the public is better informed because of it. In the words of one commentator, “WikiLeaks liberates the right to free speech from authorities that restrict access.” Along the way the 2007 release of the Kroll report on official corruption in Kenya affected a national election, while in 2009 Wikileaks exposed the moral bankruptcy of Iceland’s banks. A 2011 Amnesty International report pointed to the role of leaked documents in triggering revolutionary global uprisings. The BBC said Wikileaks revelations were a spark for the Arab spring.

    “This is the biggest free speech battle of our lifetimes,” said the Electronic Frontier Foundation. “This is the moment when we will see whether publishers can continue to freely distribute truthful political information online.”

    I support Assange because he is someone who fell into a place and time where crucial decisions will be made. Allowing Assange to speak now, and to travel unfettered to Ecuador and permanent asylum will allow others after him to continue to provide evidence when a government serves its people poorly and has no interest in being held accountable. Prosecution of Julian Assange can only come from a nation which fears the noise of democracy and prefers the silence of compliance.



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  • Review: A Higher Loyalty: Truth, Lies, and Leadership is Mostly About Making Jim Comey Rich

    April 25, 2018 // 17 Comments

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    Posted in: Democracy, Post-Constitution America, Trump

    Jesus to Trump: Drop Dead

    Despite the lofty title, in A Higher Loyalty: Truth, Lies, and Leadership James Comey comes across in turns petty, smug, sanctimonious, bitter, and most of all, pandering.


    Comey feeds the rubes exactly what they paid the carnival sideshow barker in front at Barnes and Noble to hear: the pee tape, the jokes about small hands, the comparisons of Trump to a mob boss, and enough Obama-worship to fill a week’s worth of Maddow.

    Where Comey could have shined — clarifying historical events from the Bush and Obama eras, shedding real light on the FBI’s interplay with the Clinton campaign, verifying or denouncing parts of the Russiagate narrative — he stops purposefully short. A Higher Loyalty: Truth, Lies, and Leadership is a quick grab at the money, something that in the old days would have been on pay-per-view cable or tucked away inside a second-tier men’s magazine.


    Comey tells us Trump is obsessed with the pee tape, desperate for the FBI to investigate-to-exonerate. “I’m a germaphobe,” Comey quotes Trump, emphasizing the president claimed he only used the Russian hotel room to change clothes. The then-Director of the FBI was apparently non-committal to his boss, but in his book safely removed by a year and the publishing process Comey writes “I decided not to tell him the activity alleged did not seem to require either an overnight stay or even being in proximity to the participants. In fact, though I didn’t know for sure, I imagined the presidential suite of the Ritz-Carlton in Moscow was large enough for a germaphobe to be at a safe distance from the activity.”

    Classy, and it sets the tone for the two men’s encounters over loyalty pledges, Mike Flynn, and all things Russia. Trump says something neatly packaged and impeachment-worthy, conveniently only in a conversation he and Comey are privy to. Comey, rather than seek clarification, always assumes the worst, keeps his thoughts to himself, but remembers to document every word in writing. Everything about James Comey is presented so that you get the message that everything he is — straight-arrow bureaucrat, warrior-poet of the people, apostle of law and order, defender of the Constitution — is what Trump isn’t. It’s my word against his, you know who you believe, might as well be the title of the book.

    You were expecting insight? Trump never laughs, Comey writes, a clear tell to a soul-seer POTUS harbors “deep insecurity, an inability to be vulnerable or to risk himself by appreciating the humor of others.” Comey describes Trump as shorter than he expected with a “too long” tie. The eyes, by the way, are “expressionless.” Comey says the president’s hands were “smaller than mine.” Jim, we get it — Trump is short, wears his ties long to compensate, has tiny hands — brother, just represent: I’m a bigger man than the president!


    The Clintons are always in the background. Comey teases there is classified but unverified info on Loretta Lynch that “casts serious doubt on the Attorney General’s independence in connection with the Clinton investigation” but unlike in the case of Trump, where classification and proprietary have the value of a paper bag in the rain, Comey reveals no details.

    Elsewhere, Comey creates his own standard, well outside the law, for why the investigation into Clinton’s exposure of classified material on her personal unclassified server did not lead to prosecution: she gosh golly just didn’t intend to do anything criminally wrong, he says, taking the term “willful” in the actual law and twisting it to mean “evil intent.” Comey says prosecution would have required a specific smoking gun message from someone telling Clinton sending classified material via unclassified channels was wrong. He has nothing to say about whether that message might have been in the 30,000 emails Clinton deleted, only shrugging his shoulders to say there was nothing to justify prosecution as far as anyone looked. Why, he adds, they even asked Hillary herself.

    And as long as he’s making up the law, those memos Comey wrote of conversations between two government employees, on Federal property, regarding national security-related official government business? He “regards” them as personal property, so their contents didn’t have to be classified and thus could not by definition be leaked. He did not, however, include them in his book and they remain hidden from the public.

    Comey writes he felt confident reopening the Clinton email probe days before the election because he ­assumed Clinton would win, and if the new investigation was revealed after her victory it might make her seem “illegitimate.” He says the same thing about keeping Russian meddling quiet, certain it wouldn’t matter when Hillary became his boss a few months later. The irony of Comey setting out to legitimize the expected Clinton presidency ended up hurting her aside, what is disturbing is the blatant admission a partisan calculus was part of the decision making in any way at all.


    It’s a heck of a thing to admit in writing, and shows how empty Comey’s constant claims to integrity lie. Should any serious prosecution emerge from the mess of the Trump presidency, Comey’s credibility as a witness is tainted, and his value to the American people he claims to serve thus diluted. Comey will see his testimony whittled down by defense lawyers even now cross-indexing statements in the book with the public record. And who knows what Seth and Trevor and Rachel will pull out of him?

    Most people tangled up in Washington beheadings get around these problems by waiting until after the dust has settled to write their books. That was the case for the Watergate gang, Oliver North, and Monica Lewinsky. The problem with Comey waiting is that there’s very little new here. If your impeachment fantasy includes the pee tape, or if you believe it is made-up, Comey has nothing to enlighten you either way.

    Instead, this is like reading a 13-year-old’s diary about why she hates boys, or a bunch of angry Tweets dragged out over 304 pages. Comey doesn’t appear to have any political ambitions, and he doesn’t seem to be using the book to audition for a talk show job. It’s not even good “score settling” in that it’s just mostly the same stuff you’ve heard before.


    And that’s all a shame, because there is a better book Comey could have written. Comey was witness to the legal wranglings inside the Bush administration over NSA’s illegal domestic spying on Americans, and was in the hospital room when Bush White House officials tried to bully ailing Attorney General John Ashcroft into reauthorizing the Stellar Wind surveillance program. Comey was there for the debates over torture, and under Obama, the use of the Espionage Act to punish journalists and whistleblowers. None of that was morally repugnant to him at a Trump-like level, and he never resigned in protest to protect his honor. Why, Jim?

    Bu instead of insight into all that we get a quick overview that adds little to the known facts. Comey’s narratives are designed only to show leaders in each instance acted honorably enough for Comey’s taste, as opposed to Trump. Comey’s visceral hatred of Trump as a liar and a boor prevents Comey from writing an honorable memoir of his decades inside government, and instead drives him to present a version of events where history is only of value when it can be slaved to making Trump look bad in comparison. It’s a thin shell for anyone who knows more about these events than Colbert or Meyers spoon out.

    There’s a reason why circus sideshows got out of town after a few days, before the rubes figured out the “Alien from Mars” was just a rabbit with some fake teeth glued on. It’s pretty clear Comey’s higher loyalty lies only to making a quick buck for himself with a near-substance free book, before anyone realizes it’s all a fraud.


    Update: Amazon dropped the pre-order price three bucks the day after for Comey’s book was formally released…)


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  • Movie Review: The Post, or, History as 2018 Wants It to Be

    January 19, 2018 // 11 Comments

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



    Steven Spielberg’s “The Post,” starring Meryl Streep and Tom Hanks, tells the story of the Washington Post’s decision in 1971 to publish parts of the Pentagon Papers, the government’s secret history of the Vietnam War. It’s a whimper of a movie, throwing bad history on the screen to make a clumsy but ever-so 2018 political point.

    So how do you make a two hour drama out of a decision? There are only so many scenes you can shoot, though Spielberg tries them all, of The Suits saying “You can’t publish!” while Meryl and Tom emote “We must!” Well, you more or less override real history in favor of a Lesson, whitewash a decision made in part to make the Post look better against its competition of the time the Washington Star, and sideline the real hero, Daniel Ellsberg.


    A bit of history. Ellsberg first leaked the Pentagon Papers exclusively to the New York Times; despite what “The Post” claims, the Washington newspapers were far too provincial to qualify as full peers. The Pentagon Papers were a 7,000 page classified history of the Vietnam War, 1945 to 1968, prepared under the order of Kennedy-Johnson Secretary of Defense Robert McNamara. We know now McNamara, while publicly supporting the war, was privately consumed by doubt, and the Papers were his act of contrition. Times’ reporters spent three months reading and verifying the documents. Simultaneously, the Times set its legal team to preparing the now classic First Amendment defense it knew would be needed.

    The risks were huge — no one had ever published such classified documents before, and the senior staff at the Times feared they would go to jail under the Espionage Act (though only Ellsberg was actually charged as such.) The Nixon administration found a court to order the Times to cease publication after an initial flurry of excerpts were printed in June 1971, the first time in U.S. history a federal judge censored a newspaper. Things got so dicey the Times’ outside counsel actually quit the night before his first appearance in court, claiming the newspaper had indeed broken the law. It was only at that point the Washington Post actually obtained an excerpt from the Pentagon Papers.


    The movie brushes past the Times’ rigorous fact checking, raw courage, and masterful First Amendment legal defense to focus on the Post’s big risk: the paper was about to offer its stock publicly, and problems with the government might hurt share prices. Nixon shut down the Post’s publishing anyway after only two days, and the paper went to court. The Post’s lawyers made no First Amendment case, more afraid of being found in contempt of the injunction against the Times than the Espionage Act. The Supreme Court rolled their briefs into the Times’ case, and the landmark victory for the First Amendment was issued as New York Times Company v. United States. The Times won the Pulitzer Prize. The Post did not.


    But hell, you’re Steven Spielberg. You have the True Guardians of Liberal-Lite, Blue America’s mom and dad, Meryl Streep and Tom Hanks. What does history have to do with your movie anyway? It all begs the question of why Spielberg chose to tell the story of the Pentagon Papers, which is really the story of the New York Times with its spine still in place, via a secondary player, the Washington Post?

    “The Post” has no real interest in the Pentagon Papers except as a plot device, almost an excuse needed to make this movie. “The Post” simply takes a now universally praised, and thus middle America safe (for the same reason, “Saving Private Ryan” was set in the Good War instead of god-awful Vietnam) episode of journalism as a launching point to attack what it sees as the Trump Administration’s efforts to weaken a free press. Today’s WaPo, under the ownership of one of America’s richest liberal capitalists, Amazon’s Jeff Bezos, has refashioned itself as the newspaper of #Resistance, declaring in undergraduate essay level pseudo Orwellian prose its motto to be “Democracy Dies in Darkness.”

    By setting the story back in ye olde timey 1971, Spielberg can appropriate Daniel Ellsberg, instead of Obama-era whistleblowers Chelsea Manning and Edward Snowden, who still hover near to traitor status for many. Tom Hanks himself gave the game away, calling Ellsberg a hero in an interview while refusing to characterize Snowden at all.

    What was clearly the right thing to do to help bring down (Trump stand-in) Richard Nixon can become all morally ambiguous when Obama is in the hot seat, hence the historical setting. The Obama administration charged more people under the Espionage Act for alleged mishandling of classified information than all past presidencies combined, including Nixon’s. But by more or less bypassing the core issue both whistleblowers and real journalists stare down — there are higher goals than obedience to government — Spielberg ducks the real lesson in favor of an easy shot at the current administration.

    “I think our country has a love-hate relationship with whistleblowers,” attorney Jesselyn Radack, who helped represent Manning, Snowden and, full disclosure, me, told The American Conservative. “I wish I could be optimistic about ‘The Post’ shifting the needle of public opinion. However, it’s a hopelessly mismatched tug of war when the entire apparatus of the U.S. government — whether led by Obama or Trump — holds one end of the rope.”


    Using the old Washington Post as the launching point for what is essentially just a trope-ish Op-Ed (Freedom of the Press, good! Republican Presidents, bad! Journos, Indiana Jones!) also allows Spielberg to show 1971 exactly as 2018 wants to remember it. Meryl and Tom, playing Katherine and Ben, are perfect role models for how men and women should work together, respectful and considerate, with no mansplaining or inappropriate remarks to be found.

    Meanwhile, the newsroom is era-appropriate white and male, but everyone is on their best behavior for the camera; no fanny slapping, no one addressing the clerical staff as “honey” or demanding coffee. The New York Times of 1971 was too male, and even Spielberg couldn’t shoe horn a female protagonist into that picture, never mind create a hit-you-over-the-head subplot of Katherine Graham morphing from Betty Crocker into a fierce, persistent 2018 role model for all women and girls (one of the later shots in the film shows Streep leaving the Supreme Court to gently part a crowd of adoring young women, adream in halo-like glow at her proto-feminism). There is no subtlety to the message. Spielberg might as well have costumed Streep wearing a pink pussy hat in the boardroom scenes.


    Nobody expects movies to be 100% historically accurate, but “The Post” twists facts to present a battle that really wasn’t fought this way at all. The film is an effective piece of polemic, taking full advantage of the skills of some of America’s most talented practitioners, who one imagines believe they made a Movie That Matters For Our Times. Spielberg, Streep, and Hanks, all supporters of Hillary Clinton, couldn’t get her elected, so they did the next best thing. They created a little confection likely to win multiple Oscars and play forever on Amazon Prime beating up the guy she lost to.



    Full Disclosure: Dan Ellsberg is a hero of mine.

     

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  • Thanks, and Goodbye

    August 13, 2017 // 54 Comments

    Tags:
    Posted in: Democracy, Post-Constitution America

    I’ll save someone the time typing in the Comments section — yes, yes, I won’t let the door hit me on the ass on the way out.

    I’m going to take a break with this blog. I may post here and there when I get bored, I may rerun some old things, I may do nothing at all. But after some six years and over 2,000 posts, I’m gonna do something else. Not sure just what yet.

    The reason is simple: the Internet has become too boring and too toxic. It is no longer a matter of having a thick skin, it is a question of why bother.

    The past election finally broke the idea of the informal interchange blogs thrive on, as it broke journalism. And as it apparently caused most of America to lose its mind.

    Partisan reporting devolved into partisan facts; for example, though the basics are black and white in how the government’s document classification system works, the mass of media allowed itself for over a year to believe that Clinton had no classified material on her email server because someone retyped things without the SECRET headers, then spent months telling everyone even if she did that did not matter, even after it did. There are plenty of other examples. For example, a large number of Americans now believe, based on no real evidence presented yet so far, that our government is literally controlled from Moscow. But mention the idea of a Deep State and you’re labeled a nut case conspiracy theorist. Sure.

    Journalism used to involve sources, people and documents — facts. Reporters told us how they knew something so we could judge the validity of the reporting. If the source on a new strategy toward India was an intern who quit last year versus a senior national security advisor, we could judge. Now, major stories are near-exclusively sourced anonymously, and often include second and third hand leaks and rumors, all jumbled together as fact. As long as the main story point supports a given bias (Trump is bad) most people seem to play along. As the old joke goes, that’s not reporting, it’s typing.

    Outside of some pretty dank hyper-conservative media, it is impossible to write about Trump except to ridicule him, and even that must be done in the most juvenile ways to pass muster. I can’t write about a decision, or compare something today to actions of the Obama administration, unless I also call Trump a petulant fool, a man-child, orange Cheeto, and state he is planning to start a war with China, Iran or North Korea this same day. Anything less than that and I am a fascist, nazi, rethugblican or just plain stupid. History has been rewritten on the fly to deify Obama, and even George W. Bush has seen a bit of a makeover. Anything other than overt attacks on Trump are labeled as support. There is nothing left to write other than grade school level insults.

    There is no point I can see anymore in researching and writing an explainer on how something like the Emoluments Clause works, for example, when the response is inevitably something like “You suxxxx, go f*ck Putin, stupid white man!!!!”

    I also see no real progress being made now that everyone is empowered to insult everyone else. It is not “resistance” to call me names for being straight and white. Legitimate political criticism of a politician is instantly labeled misogynistic. Or homophobic or sexist or racist.

    Oh yes, and I’m threatened by all this, I’ve heard a million times. Friends, I’ve been shot at, mortared, told I might go to jail under the Espionage Act, made to believe the government might seek to bankrupt me in legal costs, stuff like that. Trust me, your Tweet is not a threat. It’s just tiresome, repetitive, and unoriginal.

    The final straw for me is the attack on free speech from the left, the growing sense that the use of violence is an acceptable tool to silence offensive speech as long as you can say without irony your violence is the anti-fascist kind. Progressives, if you can’t see the wrong in using fascist techniques to fight fascism, I can’t help you. But God help all of us.

    So anyway America, enjoy. I’ll be over here in the corner with a water glass of tequila, watching as we tear ourselves apart, and wondering how long 300 million people can keep the lights on with a near-complete lack of civil discourse. Then again, I always was a big Mad Max fan.

    See you later.

    (Sound of the door slapping me on the ass as I walk away…)




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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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  • 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

    Tags: ,
    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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