• Archive of "Democracy" Category

    Who is the April Fool? A Partial List of World Leaders the NSA Spies On

    April 2, 2014 // 4 Comments »

    It’s no April Fool’s joke. A new slide from Edward Snowden shows us just a tiny list of those world leaders the NSA collects against, spies on, monitors and eavesdrops.

    Have a close look at the bottom of the slide. The goes up to 122, and we can only see 11 names, oddly alphabetized by first name.


    The number in the column marked “Cites” indicates transcripts of intercepted fax, voice and computer-to-computer communication. According to internal NSA documents, it is used to “find information relating to targets that would otherwise be tough to track down.”


    C’mon Eddie, don’t be such a tease! Show us the full list!



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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    We Meant Well Exposed as Fraud!

    April 1, 2014 // 2 Comments »




    With only some irony that it unfolded on April Fool’s Day, leaked revelations exposed vaguely-noted author Peter Van Buren as a fraud.

    “Yes, I’m afraid it is true,” Van Buren admitted under waterboarding that Van Buren also agreed was “clearly not torture in anyway ever.”

    “All along I’ve been working under the control of others.”

    He Didn’t Mean Well at All

    The sham began with Van Buren’s first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People “You see,” the author confessed, “the war, occupation and reconstruction of Iraq was a complete success. Slam dunk. I saw it with my own eyes– the parks, the sparkling superhighways, the children at play, milk and honey out the buttside.”

    “My sometime-lover Secretary of State Clinton knew it, too, and wanted to hide the fact that the U.S. was pulling millions of barrels of oil out. See, if the world knew of that black gold, that Texas Tea, flowing into the U.S.’ strategic reserves, it would have deeply upset the Saudis and they would have unfriended us on Facebook, derailing what has become a successful MidEast peace process. After having finally read some of my cables on Wikileaks, the Secretary tapped me to write my book mocking State’s efforts and laying the groundwork for a complacent media to ‘buy’ the story that Iraq was a failure. All the harassment by State after my, er, our, book came out was just subterfuge. In fact, all profits from the book have gone directly to the Hillary for 2016 fund.”

    “I Hate the First Amendment!”

    As bamboo splints were forced by liberals high on warm tofu and artisanal quinoa under Van Buren’s manicured nails, more confessions came out.

    “I freaking hate the First Amendment. All it does is empower one nut job after another to start his own blog. I know nobody reads any of that junk– all the comments on my own blog are computer generated– but it is the point of it all. The Founders clearly intended that line about ‘freedom of the press’ to refer only to breaking the Commie printer’s union that dominated Colonial America.”

    “And that Fourth Amendment, unwarranted search and seizure? Please. Opponents of all that are secretly trying to undermine plans for universal gun ownership. If, as the ACLU is planning, hunting dogs are required to have warrants to search for small animals for grown men to kill, hunting– and ownership of automatic weapons capable of dropping sweet, sweet rounds of armor piercing steel into a bunny– will fade away. Poof! No more Second Amendment. And everyone knows the Second is the only cool amendment in the so-called Bill of Rights.”

    Ghosts of Van Buren’s Career: A Story of a #Loser

    Commentators, reacting to the news of Van Buren’s confession, have also called into question the themes of social and economic inequality in the author’s new book, Ghosts of Tom Joad: A Story of the #99 Percent

    “First, he stole the title, and who cool uses ‘hashtags’ anymore? I happen to know, well, I overheard somewhere,” said one unnamed source, “that Van Buren owns several third world slaves. In fact, in addition to serving his every desire, those same slaves actually wrote the damn book. They begged Van Buren for minimum wage, as he ‘pays’ them only in counterfeit bitcoins. As his own slaves wrote the text decrying the dilution of America’s middle class and the rise of the working poor, the author actually sat back and chortled throughout at the irony. He enjoyed that. He actually enjoyed watching that. The man is sick.”

    “And those photos of Pete as an old, fat, bald man? Just part of the scam, the clever bastard,” said an unnamed source. “Those images are designed to elicit sympathy. Dude is actually ripped, with a full head of lionesque hair. I mean, he could step into the movie ’300′ right out of bed.”

    Off to Bali

    Following the torture sessions (which were in no way torture), rumor has it that Van Buren is off to Bali, where he and Edward Snowden meet regularly to experiment with military-grade peyote, play Minecraft, and draw the cheesy graphics used on the NSA documents.

    The State Department had no comment.



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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    Dissecting Obama’s Proposed NSA Reforms

    March 28, 2014 // 29 Comments »

    So, after nine months of ignoring the Snowden revelations, downplaying the the Snowden revelations, not telling the truth about the Snowden revelations, insulting the Snowden revelations, sending members of his administration to lie to Congress about the Snowden revelations and claiming everything the NSA does is legal, righteous and necessary to keep the barbarians outside the gates, Obama is coincidentally now proposing some “reforms” without acknowledging the Snowden revelations. Let’s have a look based on what we know right now.

    Starting with a Question

    Right away we have a question about these proposals. Almost everything (we know) the NSA has been doing to us was imposed either by Executive Orders (Bush and Obama) not subject to Congressional review or approval, or done under wide, almost farcical interpretations of the Patriot Act (Section 215 especially) not subject to judicial review, or blessed in secret by the secret Foreign Intelligence Surveillance Court (FISA) court not subject to any review. So the question of why Obama’s proposed reforms are being sent to Congress for a vote looms large.

    Why doesn’t the president just pull back what he and his predecessor rammed forward? Well, of course we know the answer: politics. If Congress approves, then the president can say that the task is done, the Constitution restored, let’s look forward again and not backward. If Congress does not vote for the reforms or changes them, well, anything from there forward is their fault. Neat. You’ll recall Obama played the same trick, albeit in a somewhat kludgy way, trying to throw the decision to bomb Syria into Congress’ fetid lap last September.

    We also have a handy delay built into the proposal. The current spy programs technically expire March 28, but Obama is asking that good old Foreign Intelligence Surveillance Court to renew the program as it exists for at least one more 90-day cycle. So while the reforms are needed according to the president, there’s no real hurry and the NSA can keep on spying on us at least into the summer. With some irony, that additional 90 days brings us quite close to the anniversary of Snowden’s revelations last June.

    The Reforms Proposed

    Reform 1: The NSA, proposes Obama, would end its systematic collection of data about Americans’ calling habits. Well, sort of. First we all just have to trust that what the NSA has been and would have continued to do in secret if Snowden had slept in will just stop. There’s a whopper of a maybe, especially given that these changes come only after the whole evil mess hit the news. Better yet, just because the NSA may not collect data, someone else will, because…

    Reform 2: The bulk records would stay in the hands of the phone companies, which would not be required to retain the data for any longer than they normally would. So the data still exists, just reshelved. Most phone companies hold such data anyway for 18 months, plenty of time for some leisurely snooping. And just because the phone companies are not required to hold the data longer, that does not mean some government agency which controls their contracts, licenses, technology and all that will not suggest they hang on to it longer. Hey Verizon, just buy a bigger hard drive, they’re cheap these days. Slap a non-disclosure type order on the phone companies and we’ll never know what they keep for how long. Again, this reform requires trusting organizations that lied to us consistently since 2001 until caught red-handed.

    Reform 3: The NSA could only obtain specific records with permission from a judge. I think we all can see through this one like it was as sheer as a Miley Cyrus costume. Likely enter the handy FISA court again, which has a long record of rubber stamping government requests, no doubt in no small part because only the government is allowed to speak to the court (in its entire history, the FISA court denied just 11 of the more than 33,900 surveillance requests put to it.)

    In addition, it is unclear what level of detail and introspection the court could apply to what no doubt will be hundreds of thousands of new requests, most of which will no doubt be marked as urgent in response to the endless parade of “imminent threats” only the NSA sees.

    Sub-Reform: Obama will ask Congress to convene a panel of public advocates to represent “consumers” before the FISA court. Are Citizens now just “consumers” as far as the government is concerned?

    The members of this panel, to be drawn from civil liberties, technology and privacy advocates, will be given security clearances and other benefits. Their job will be to represent Americans, but only when the FISA court faces “novel issues of law.” Left open is who these people will be, who will pay them, who will choose them, and how aggressive the government will be in using the security clearance process to keep true advocates away from the court. Who and how “novel issues of law” will be determined is another question. What rights these advocates will have to see government data is unclear. And of course everything will be secret.

    Back to the court orders themselves. These court orders are lined up to be another forward-looking thing: once a phone company starts providing call data on an individual, they would be required, on a continuing basis, to feed the NSA data about any new calls placed or received after the order is received. For how long? Not mentioned in the proposal. Better classify that time period or you’ll alert the terrorists when they can start talking freely again. The court orders would also automatically give the NSA related records for callers up to two phone calls, or “hops,” removed from the number that has come under suspicion. So if they look at your records, they are also allowed to look at the doctor you call and the journalist you call.

    Worse yet is the way math works with that two-hop rule. One writer has speculated that if one of those hops includes a popular take-out pizza joint, that hop will automatically link the NSA to a very, very large number of people. Other data suggests a typical two-hops set of links will pull in over 8,000 people. Reconfigure your two-hops to restart with one of those 8,000 and so forth until the set of permissible monitoring grows geometrically.


    What’s Missing

    The only category of people Obama has specifically exempted from surveillance is allied foreign leaders. He has not extended any exemptions to American citizens.

    The reform proposals seem specific only to bulk phone records collected by the NSA under Section 215 of the Patriot Act. They do not appear to apply to any other collections by the NSA (email, Skype, chat, GPS, texts, and so on and on), or any other federal or state agency, or to any programs in place today that we are not aware of or which may be created in the future, perhaps in response to the reforms.

    This omission is significant; The Guardian reports the NSA collects each day more than five million missed-call alerts, for use in contact-chaining analysis (working out someone’s social network from who they contact and when), details of 1.6 million border crossings a day, from network roaming alerts, more than 110,000 names, from electronic business cards, which also included the ability to extract and save images and over 800,000 financial transactions, either through text-to-text payments or linking credit cards to phone users. NSA also extracted geolocation data from more than 76,000 text messages a day, including from “requests by people for route info” and “setting up meetings.” Other travel information was obtained from itinerary texts sent by travel companies, even including cancellations and delays to travel plans.

    The Obama reforms do not even mention surveillance of Internet communications internationally under Section 702 of the FISA Amendments Act; and surveillance of communications overseas under Executive Order 12333.

    The reforms do not mention pulling back the NSA’s ongoing efforts to weaken overall internet security, such a demanding companies provide them with backdoors to bypass encryption.

    The reforms leave the door open. Obama’s proposal includes a provision asking Congress to validate that Section 215 of the Patriot Act may in the future be legitimately interpreted as allowing bulk data collection of telephone data.

    The reforms leave in place far too many secret court actions and loopholes.

    The reforms will be changed in the Congressional process and are likely to be further weakened by frightened representatives terrified of being blamed for the next act of terror (or by fear of losing votes for appearing “weak.”)

    The reforms, even if enacted exactly as proposed or even slightly strengthened, only alter the security state in some minor and superficial ways. Our Fourth Amendment rights against unwarranted search and seizure remain jackbooted.

    Some might even say the reforms are not reforms at all, but just some pretty words like “Hope” and “Change” that a smart politician might toss off to appear to be listening to his People without doing anything of substance.



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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    Using Metadata to Catch a Whistleblower

    March 26, 2014 // 13 Comments »




    With Obama set to announce on Friday his plans to amend the electronic surveillance program at the National Security Agency, it is a good time to look more closely at what the NSA has been doing with some of the data it has been collecting on Americans for the last decade or so. But first some background.

    As the very first info Edward Snowden’s information about the NSA began to emerge in June 2013, Obama made the following statement:

    Nobody is listening to your telephone calls. That’s not what this program is about. As was indicated, what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people’s names, and they’re not looking at content. But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism.

    (Obama also said in that same remark “Now, with respect to the Internet and emails — this does not apply to U.S. citizens and it does not apply to people living in the United States,” a statement which we now know, from Snowden’s revelations, was a complete lie. But that’s another column.)


    Dianne Feinstein backed up the president that same day, telling nervous Americans “This is just metadata. There is no content involved.”

    (Feinstein also had the gall to say in June 2013, “To my knowledge, we have not had any citizen who has registered a complaint relative to the gathering of this information.” But that’s another column.)


    What is Metadata?

    Metadata in 2013 was not a term widely-known to the general public. A quick definition might be that metadata is information about data– when and where the data was created, perhaps who created it, how long it took to create, that sort of thing. The metadata for this article might be something like “Created in New York City at 11:33 on April 2 by user Peter Van Buren.” Using this, while a snoop would not with the metadata alone know what I wrote, s/he could indeed place me at a specific location engaged in a specific task at a specific time with a specific computer. Potentially valuable information, especially in the aggregate.

    If the metadata was for an interactive thing, like a phone call, then the snoop would also know to whom I was talking. Metadata can serve as a giant index to allow the snoop to know which “content” is worth looking at in detail. Matching a phone number to a business or person is painless within the U.S. and many other countries. It can done by most people over the internet (reverse directories) and has long been available using more sophisticated systems by law enforcement.

    But let’s focus on the metadata alone, as did the Stanford University Security Lab. Scientists there asked subjects to voluntarily collect and share the same metadata about their cell calls as the NSA collects from them involuntarily. The scientists did this via an app one could download, a kind of willful piece of malware like the NSA could install on phones where it does not already have access to the full network (as it does in the U.S. and most allied nations.)

    To Catch a Whistleblower

    So what did Stanford find among all that metadata? They began with some simple, common-sense assumptions, primarily that the more calls you made to a specific place (i.e., a political group or a friend) and the longer in duration those calls were, the more significant the connection. If that same source called you back, frequently or for long durations, the connection was more or less confirmed. Mistakes could be made, but there is always some collateral damage in these things.

    Let’s play along. Jennifer holds regular conference calls during business hours with the same set of people at numbers that resolve to an office in the Pentagon. She makes a significant set of short calls to an Anti-War organization during after-work hours, followed by another set of very long calls to a law office known to represent whistleblowers. She occasionally calls a journalist whose number resolves to New York City, often only speaking for a few seconds. Is Jennifer planning to blow the whistle on something and is setting up meets with a NY journalist? Let’s kick down her door tonight at 2 am and find out.

    Looking to gather data that might be used to identify vulnerabilities, blackmail or character-assassinate someone? The Stanford people wrote “The degree of sensitivity among contacts took us aback. Participants had calls with Alcoholics Anonymous, gun stores, NARAL Pro-Choice, labor unions, divorce lawyers, sexually transmitted disease clinics, a Canadian import pharmacy, strip clubs, and much more.”

    Knowing Everything

    Let’s go deeper. Stanford found:

    Participant A communicated with multiple local neurology groups, a specialty pharmacy, a rare condition management service, and a hotline for a pharmaceutical used solely to treat relapsing multiple sclerosis.

    Participant B spoke at length with cardiologists at a major medical center, talked briefly with a medical laboratory, received calls from a pharmacy, and placed short calls to a home reporting hotline for a medical device used to monitor cardiac arrhythmia.

    Participant C made a number of calls to a firearm store that specializes in the AR semiautomatic rifle platform. They also spoke at length with customer service for a firearm manufacturer that produces an AR line.

    In a span of three weeks, Participant D contacted a home improvement store, locksmiths, a hydroponics dealer, and a head shop.

    Participant E had a long, early morning call with her sister. Two days later, she placed a series of calls to the local Planned Parenthood location. She placed brief additional calls two weeks later, and made a final call a month after.


    What Do They Know?

    What could someone do with that kind of information about you? What if that someone also had, as we know the NSA does, access to your social media, email, snail mail, credit card data, travel information, air reservations, and bank records? Orwell was an amateur. Metadata is the key to stripping away the haystack so that the needle is just sitting there.

    The Stanford metadata research program appears to still be up and running; volunteer to help by downloading their app. The NSA program is most certainly robustly ongoing.



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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    War on Whistleblowers Moves to Supreme Court

    March 21, 2014 // 10 Comments »

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

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

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

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

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

    Robert MacLean, Whistleblower

    MacLean’s case is simple — and complicated.

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

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

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

    How Everything in Government Became Classified

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

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

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

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

    MacLean Wins a Battle in Court

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

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

    The court affirmed that laws passed by Congress creating formal classifications like “top secret” trump regulations made up by executive branch bureaucrats. In other words, as the Constitution intended, the legislative branch makes the laws and serves as a check and balance on the executive branch. Congress says what is classified and that say-so cannot be modified via an executive branch memo. One of MacLean’s lawyers hailed the court’s decision as restoring “enforceability for the Whistleblower Protection Act’s public free speech rights. It ruled that only Congress has the authority to remove whistleblower rights. Agency-imposed restraints are not relevant for whistleblower protection rights.”

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

    Not a Happy Ending But a Sad New Beginning

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

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

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

    This Is War

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

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

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

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

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

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

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

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




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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    CIA, Senate and a Constitutional Crisis (if you’ll keep it)

    March 12, 2014 // 20 Comments »




    Even for someone cynical and jaded, it is still possible to be gobsmacked by the news. We are witnessing extraordinary events in the history of our nation.

    Speaking in reference to revelations that the CIA searched computers being used by Senate staffers, and removed documents those staffers had received from the CIA detailing its post-9/11 torture program, Senate Intelligence Committee Chairman Dianne Feinstein said:


    I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution, including the Speech and Debate Clause. It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities.

    [CIA actions] may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.

    We will bypass for now the hypocrisy of Feinstein complaining that her own Fourth Amendment rights were trod upon, given that she has until now enthusiastically supported the government’s rape of our own rights through unwarranted surveillance. There are bigger fish to fry this round.

    Torture

    As almost a side note, it is very clear now that there are things in those deleted CIA files that the CIA and the White House are willing to go to extraordinary lengths to hide. Recall that the CIA destroyed without punishment or sanction video tapes of the torture sessions.

    Feinstein said “The interrogations and the conditions of confinement at the CIA detentions sites were far different and far more harsh than the way the CIA had described them to us” and emphasized that her committee’s report would detail “the horrible details of the CIA program that never, never, never should have existed.”

    It is likely the files the CIA pulled out of the Senate’s hands would reveal two presidents have lied to the world about the torture program, and that horrors beyond what we know were committed in our names. What did they do to other humans?


    Beyond Torture

    But we are past the question of torture. What is happening here is a Constitutional crisis. If Feinstein does not have CIA Director Brennan up before her Senate committee immediately, and if she does not call for his resignation and if the president remains silent (“We need to allow Justice to complete its investigation”) then we have witnessed the essential elements of a coup; at the very least, the collapse of the third of the government charged with oversight of the executive.

    That oversight– those Constitutional checks and balances– are the difference between a democracy and a monarchy. They are what contains executive power and makes it responsible to the People. But like Jenga, pull out the important one and the whole thing falls.

    A Last Question

    The only question remaining then is whether the president is part of the coup, or another victim of it. Is he in charge, or are the intelligence agencies? We may have an answer soon. CIA Director Brennan said:


    If I did something wrong, I will go to the president and I will explain to him what I did and what the findings were. And he is the one who can ask me to stay or to go.

    So far, the White House response has been to ignore the challenge:


    President Obama has “great confidence” in Brennan, Carney said during his daily briefing. He added that if there has been any “inappropriate activity,” the president “would want to get to the bottom of it.”

    Carney added later Obama administration lawyers were told about the CIA’s intentions to have the Department of Justice investigate Senate staffers for potentially stealing classified documents they sought to hold on to after the CIA tried to delete them but did not approve or weigh in on the agency’s decision. One must ask: why the f*ck not?

    Brennan has challenged the president to act. What the president does will tell us much about the future of our democracy. As radio host Guillermo Jimenez has said, “On this Grand Chessboard, it is We the People who are now in check. It’s our move.”




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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    Snowden Warns Us of the Dark Path Ahead

    March 10, 2014 // 16 Comments »

    In written testimony to the European Union (EU), Edward Snowden explained in patient, well-written, detailed prose exactly why what the NSA is doing is so dangerous. Snowden reveals himself an articulate writer, and through that moves from mere whistleblower into an almost philosophical role. His testimony deserves your full read, so you should best stop right here and just go read it.

    For those who prefer some highlights, with commentary, please follow me deeper down the page rabbit hole.

    Snowden says:

    The suspicionless surveillance programs of the NSA, GCHQ, and so many others that we learned about over the last year endanger a number of basic rights which, in aggregate, constitute the foundation of liberal societies.

    The first principle any inquiry must take into account is that despite extraordinary political pressure to do so, no western government has been able to present evidence showing that such programs are necessary. In the United States, the heads of our spying services once claimed that 54 terrorist attacks had been stopped by mass surveillance, but two independent White House reviews with access to the classified evidence on which this claim was founded concluded it was untrue, as did a Federal Court.

    …There are indications of a growing disinterest among governments for ensuring intelligence activities are justified, proportionate, and above all accountable. We should be concerned about the precedent our actions set.

    Snowden understands that the programs he revealed are fundamentally in conflict with the very basis of a just society; the two cannot co-exist. When the government turns its full resources to spy, without suspicion or reason or legitimate purpose, on its full citizenry (including the Senate, charged with in theory a check-and-balance role on the executive), a fundamental shift occurs: the Government is no longer of the People, it has made the People its enemy. The opposite follows by course. Deceiving your enemy is part of any war.

    More:

    I know the good and the bad of these systems, and what they can and cannot do, and I am telling you that without getting out of my chair, I could have read the private communications of any member of this committee, as well as any ordinary citizen. I swear under penalty of perjury that this is true.

    These are not the capabilities in which free societies invest. Mass surveillance violates our rights, risks our safety, and threatens our way of life. If even the U.S. government, after determining mass surveillance is unlawful and unnecessary, continues to operate to engage in mass surveillance, we have a problem.

    Indeed we do Edward. The problem is that following the events of that one day– 9/11– America went, quite simply, insane. For a short period of time, nearly every American, naw, let’s all look at our shoes and feel ashamed, because EVERY American agreed that anything that even might make us feel safe again was OK. We went out and bought duct tape when told a gas attack might happen, and we eyed our neighbors cautiously.

    But as the dust literally settled, the government realized that they could cite 9/11 as justification forever, for anything. Evil people took this opening to slip a still-metastasizing national security state into the fabric of our lives, then enlarge it to cover the globe. Snowden in his testimony acknowledges that the NSA’s reach covers billions of people. I am certain that if we could ever catch anti-freedom figures like Cheney, Obama and their pig helpers in a private moment, they would all say: “If we knew it was going to be this easy to create an omnipotent executive, we would have done it years ago.”

    Snowden:

    Whether we like it or not, the international norms of tomorrow are being constructed today, right now, by the work of bodies like this committee. If liberal states decide that the convenience of spies is more valuable than the rights of their citizens, the inevitable result will be states that are both less liberal and less safe.

    There is the most important sentence of all: the international norms of tomorrow are being constructed today. Because if this devolution of our world, our freedoms and our privacy is allowed to remain, it will grow, and that will be the end of that. As Snowden warned earlier, no one in elementary school today will ever know what privacy is, and will grow up in a police state that envelopes their lives in total. They will never hold a private thought, never share a private communication, never wake to a place where they are not on someone’s video screen. Snowden is clear that we are at the last Y in the road.

    The final words are Snowden’s:

    If you want to help me, help me by helping everyone: declare that the indiscriminate, bulk collection of private data by governments is a violation of our rights and must end. What happens to me as a person is less important than what happens to our common rights.


    Now really, go read Snowden’s full testimony.



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    Posted in Democracy, Post-Constitution America

    Barrett Brown: The Criminalization of Web Links

    March 7, 2014 // 20 Comments »

    This– A LINK– could have sent me to jail. Another link came very, very close to sending Barrett Brown to jail.

    First, a quick recap of how the internet works. People from all over the world put stuff on the web (“posts”). In many cases you the viewer do not know who posted something, when they did it, where they live or where they obtained the information they posted. It is just there on your screen. If the info is of interest, you can link to it, sending instructions via chat, email, HTML, Facebook or whatever to someone else, telling them where to find the information.

    The act of linking is analogous to saying “Hey, did you see that article in the Times on page 4? Check it out.” It is kind of what the internet is about. Here’s how the government seeks to criminalize linking from one article on the web to another.

    The United States v. Barrett Brown

    Barrett Brown is an internet guy. He may or may not have been involved with web naughty boys Anonymous and most certainly was deeply involved with broad free speech issues online. In 2011 Brown posted a link in a chatroom, pointing to data that was obtained during the late-2011 hack of Stratfor Global Intelligence. The link pointed to the Wikileaks site.

    The government arrested Brown and charged him with a number of offenses, the most significant of which was for posting that link. The link, the government contended, exposed enormous amounts of credit card information, a crime. Not mentioned by the government, the link also documented discussions of assassination, rendition and how to undermine journalists and foreign governments.

    To be clear, neither the government nor anyone else accused Brown of stealing the info himself, or misusing the info to use others’ credit cards, physically possessing the information, hosting it on a server he controlled or anything like that. His crime was simply linking to data that already existed on the internet and which was already available worldwide for viewing.

    (To be further clear, Brown is no choirboy. He was once addicted to heroin, is accused of threatening an FBI agent on YouTube and who knows, may be mean to strangers. And so what. What matters is his actions, not his Match.com profile.)

    Browns Wins, Though Broader Issues Remain

    The Electronic Freedom Foundation (EFF) supported Brown throughout his arrest. Because the government imposed a gag order on Brown speaking publicly about his situation, friends such as the EFF were critical in keeping the case in the public eye. The significance of Brown’s case was made quite clear by the EFF:

    The U.S. Attorney for the Northern District of Texas today [March 5, 2014] filed a motion to dismiss eleven charges against Barrett Brown in a criminal prosecution that would have had massive implications for journalism and the right of ordinary people to share links. EFF has written extensively about the case and had planned to file an amicus brief on Monday on behalf of several reporters groups arguing for the dismissal of the indictment.

    Brown, an independent journalist, was prosecuted after he shared a link to thousands of pages of stolen documents in an attempt to crowdsource the review of those documents—a common technique for many journalists. The records came from the US government contractor, Stratfor Global Intelligence and documented discussions of assassination, rendition and how to undermine journalists and foreign governments. They also included thousands of stolen credit card numbers. Brown had no involvement in the hack, but was charged nonetheless with identity theft.


    Looking for a Test Case

    Though the government in its Motion to Dismiss gave no reasons for its decision, the implication is that while the government was clearly looking to set a precendent on the Brown case, it did not want that precedent to be a loss. Better to let a small fry like Brown swim away than risk the greater principle the government seeks.

    Having failed to find any legal or otherwise effective way to deal with sites like Wikileaks, or the publication of classified materials elsewhere on the internet, the government is taking a side-step in seeking to punish those that use, view or handle the material itself.

    U.S. Government Orders its Employees to Not Look at Wikileaks and Others

    For example, when the Wikileaks information first started pouring out across the web, most government agencies blocked access to the data via their firewalls, claiming the content was still classified and thus could not be viewed on a government computer even while it could be viewed on any other web-connected computer from Cleveland to Karachi. Similar blocks have been put in place to prevent much of the Snowden material from being viewed at work.

    Before Barrett Brown, Me

    The attempt by the government to punish people for links to “objectionable” material did not start with Brown. Though I can’t promise I was the first test case, I was certainly an early attempt.

    In 2010 the Department of State suspended the Top Secret security clearance I had held without incident or question for over twenty years because I linked to a supposedly classified document on the Wikileaks site from this blog.

    State referred my linkage to the Department of Justice for prosecution in fall 2010. When Justice declined without reason to pursue the case, State took the non-judicial action of “temporarily” suspending my security clearance indefinitely, because of the link. State claimed that via that link I revealed classified information publicly, a major no-no for cleared personnel and sought to fire me. As in the Brown case, in the end State choose not to pursue charges, again without comment.

    There may be other such link cases out there that we do not yet know of. They may be classified, or the parties involved may be under gag orders as was Brown.



    Who’s Next?

    There appears little question that the government is testing the concept, looking for a case that it can win that would criminalize linking. From the government’s point of view, the win would pay off handsomely:

    – With use of their content criminalized, sites like Wikileaks would slip beneath the world radar. People would be increasingly afraid of reading them, and the crowdsourcing critical to sifting through millions of documents would slow down significantly.

    – In cases the government saw as particularly dangerous, people would disappear into jail. With a precedent set in a “good” test case, winning such prosecutions would be rote work for interns. Is there a link? Did Ms. X create the link? Does the link go to classified information? It’s a slam dunk.

    – Best of all from a control standpoint, prosecuting links will have a chilling affect. Many people will simply be afraid to take the chance of legal trouble and stop creating links or following them. That will certainly be the case among the main stream media, already far too skittish about security matters. One wonders what effect such prosecuting of links will have on search engines like Google, essentially little more than a collection of links.

    Another step toward a post-Constitutionalization of America is the creeping criminalization of everything. If every act is potentially cause for prosecution, the ability of the government to control what people do or say grows.

    So while we still can, better hit these links: Wikileaks, Cryptome, some Snowden. Who could have guessed that in 2014 a click of the mouse would be a subversive act?



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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    A Government Turning the Tools of War on Its Citizens

    March 3, 2014 // 25 Comments »



    While poets and psychologists talk about soldiers bringing the battlefield home with them, in fact, the U.S. is doing just that. More and more, weapons, tactics, techniques and procedures that have been used abroad in war are coming home, this time employed against American Citizens.

    A front-page article in the Washington Post confirms that wartime surveillance blimps– aerostats– used in Iraq and Afghanistan will now monitor most of the Northeast United States. The aerostats will be able to track individual cars and trucks as they move about their business.

    Welcome Home Aerostat

    The latest (known) example of war technology coming home is the aerostat, a medium-sized blimp tethered high above its target area. Anyone who served in Iraq or Afghanistan will recognize the thing, as one or more flew over nearly every military base of any size or importance (You can see photos online).

    What did those blimps do in war? Even drones have to land sometime, but a blimp can stay aloft 24/7/forever. Blimps are cheaper and do not require skilled pilots. Blimps can carry literally tons of equipment, significantly more than a drone. The blimps can carry any sensor or technology the U.S. has available, suspending it at altitude to soak up whatever that sensor is aimed at– cell calls, radio waves, electronic whatevers. The aerostats also carried high-powered cameras, with heat and night vision of course. While in Iraq, I had the aerostat video feed on my desktop. Soldiers being soldiers, occasional diversions were found when a camera operator spotted almost anything of vague interest, including two dogs mating, an Iraqi relieving himself outdoors or on really dull days, even a person hanging out laundry. The device obviously also had much less benign tasks assigned to it.

    The war has come home again, as the Army confirmed that by summer 2014 at least two of these aerostats will be permanently over the Washington DC area. They will be run by the Army, using operators who likely learned their trade at war. The aerostats are brought to you by the Raytheon company, who also makes some of America’s favorite weapons and surveillence gear.


    Armor, Drones and Armed Drones

    Others have written about the rise of warrior cops. Armored military-style vehicles are now part of most big-city police forces, as are military-style weapons. The FBI has admitted to using drones over America. In a 2010 Department of Homeland Security report, the Customs and Border Protection agency suggests arming their fleet of drones to “immobilize TOIs,” or targets of interest.

    Stingray Knows Where You Are

    Much of the technology and methodology the NSA and others have been shown to be using against American Citizens was developed on and for the battlefields of Iraq and Afghanistan, in particular the advanced use of cell phones to track people’s movements.

    A technique now at use here at home is employing a fake cell phone tower under a program called Stingray. Stingrays spoof a legitimate cell phone tower in order to trick nearby cellphones and other wireless devices into connecting to the fake tower instead of a nearby real one. When devices connect, stingrays can harvest MAC addresses and other unique identifiers and data, as well as location information. To prevent detection, the stingray relays the call itself to a real tower so the pickup is transparent to the caller. By gathering the wireless device’s signal strength from various locations, the Feds can pinpoint where the device is being used with much more precision than they can get through data obtained from the mobile network provider’s fixed tower location.

    Better yet, stingray bypasses the phone company entirely. Handy when the phone company is controlled by the enemy, handy when laws change and the phone companies no longer cooperate with the government, handy when you simply don’t want the phone company to know you’re snooping on its network.

    Meta-Your-Data

    Also refined in Iraq, Afghanistan and the greater archipelago of the war of terror was the use of metadata and data-mining, essentially amassing everything, however minor or unimportant, and then using increasingly powerful computers to pull out of that large pile actionable information, i.e., specific information to feed back to combat commanders and special forces to allow them to kill specific people. Knowing, for example, the name of a guy’s girlfriend leads to knowing what car she drives which leads to knowing when she left home which leads to listening to her make a date via cell phone which leads a credit card charge for a room which leads to a strike on a particular location at a specific time, high-tech flagrante delicto.

    The FBI has followed the NSA’s wartime lead in creating its Investigative Data Warehouse, a collection of more than a billion documents on Americans including intelligence reports, social security files, drivers’ licenses, and private financial information including credit card data. All accessible to 13,000 analysts making a million queries monthly. One of them called it the “uber-Google.”

    It’s All Good

    No need to worry Citizens, as the aerostats will only be used for your own good. In fact, their sensors will scan for incoming cruise missiles, mine-laying ships, armed drones, or anything incoming from hundreds of miles away, because of course Washington is constantly being attacked by those sorts of things (I love the idea of protecting the city from mine-laying ships sneaking up the Potomac River).

    Those DC-based aerostats will certainly not have employed the Gorgon Stare system, now in use in Afghanistan to rave reviews. Gorgon Stare, made up of nine video cameras, can transmit live images of physical movement across an entire town (four km radius), much wider in scope than any drone. Might be handy for VIP visits and presidential stuff, however, right?

    And of course the temptation to mount a stingray device where it can ping thousands of cell phones would be ignored.

    But I could be wrong about all the 1984-stuff, in which case the multi-million dollar aerostat program would be noteworthy only as another waste of taxpayer money. Remember when that was what made us the maddest about the government?



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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    Hope and Change, NSA Edition

    February 28, 2014 // 12 Comments »

    Hey lookit here, jiggling, shiny keys. Wait, I just forgot what I was going to write, but at least I’ve stopped kicking the seat in front of me.

    Distracting people from real issues with shiny objects is called “hope and change” nowadays. Here’s the latest (and this is not satire.)

    The Wall Street Journal, citing unnamed administration “officials close to the matter,” tells us that four suggestions for “NSA reform” will be forwarded to the president for a decision.

    A Quick Recap

    Prior to June of last year and Edward Snowden’s revelations about the NSA, most people had only a limited idea at best of the depth and expanse of NSA spying on Americans here in Das Homeland. It was not widely known that nearly every/every bit of electronic effluence we produce was being monitored, stored and analyzed for our safety and security. We had no idea that our very lives were just one NSA-missed email away from ending.

    Now we know a little bit more, keeping firmly in mind that only a tiny portion of Snowden’s information has been published, and that Snowden is only one whistleblower from only one of the universe of U.S. and international intelligence agencies that actively spy on all of us. In addition, Snowden’s revelations are mostly about what information the NSA and others collect, and a bit about how they collect it. We know almost nothing about what is done with that information.

    The NSA Reform Recommendations

    Still, even this tiny peep-hole view of Big Brother set off enough noise among Americans that the president was moved to create the appearance of action and reform. Hence the four recommendations the Wall Street Journal tells us will be offered to the president so that he can make a decision. Let’s have a look at those recommendations (Reminder: this is not satire.)

    Recommendation One: The NSA would continue to vacuum up our lives. Only under this recommendation telecommunications companies like Verizon and AT&T would store the data, not the NSA. The NSA would “ask” for data as needed.

    Recommendation Two: The NSA would continue to vacuum up our lives. Only under this recommendation some other part of the government would store the data, not the NSA. The NSA would “ask” for data as needed.

    Recommendation Three: The NSA would continue to vacuum up our lives. Only under this recommendation some non-telecom, non-government entity would store the data, not the NSA. The NSA would “ask” for data as needed.

    Recommendation Four: The entire spying program would be ended.



    Those Jingling Keys

    Leaving aside the obvious proof that the government still has a sense of humor proposing Recommendation Four, it is equally obvious that One, Two and Three are no reform, change or hope whatsoever. They are merely the illusion of change, the jingling keys.

    Such false “reforms” are the new normal in our post-Constitutional America. Once implemented, these reforms will then be endlessly cited by the president, the press and both parties as proof that they are listening, evidence that Something Has Been Done and that it is time to move on. As a bonus, the reforms will be available to further disrespect Snowden, asserting that his stated goal– to provoke debate and reform– has been satisfied. His work done, Snowden thus should return to America immediately for imprisonment.

    Thank you for reading this but do not be further distracted by its content. Please disperse and go about your daily lives, Citizens.


    BONUS CONTENT: Only on February 26 did we learn that the Justice Department asked the Foreign Intelligence Surveillance Court to allow it to hold the already-collected bulk telephone records beyond the currently-allowed five years.

    Why the sudden need? Because the ACLU and others are suing Justice over the collection program, and Justice says destroying the records would be inconsistent with legal obligations to retain evidence. Naughty ACLU, see what you did! Now you made it so the government has to hold our phone records longer!



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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    Government Watch Lists, Ray McGovern and Post-Constitutional America

    February 24, 2014 // 25 Comments »




    The Passion of Ray McGovern

    Ray McGovern is a hell of a guy. An Army veteran, he worked for the CIA from the Kennedy administration up through the first Bush presidency, preparing the president’s daily intel brief and other important stuff. Along the way, McGovern began to see the fraud and evil of much of the government’s work, and has since become an outspoken critic of the intelligence world and an advocate for free speech. He speaks on behalf of people like Julian Assange, Chelsea Manning and Edward Snowden.

    McGovern is also a very nice person, soft-spoken, serious, kinda looks like your uncle playing Santa Claus, full of fascinating Cold War history. I’ve had the pleasure of meeting Ray. He’s the kind of guy you meet and like almost immediately. I bet he was a hell of a spy.

    A Wanted Man

    Ray McGovern is also on the State Department’s BOLO list– Be On the Look Out– one of a series of government watch lists.

    The old-timey wanted poster State’s Diplomatic Security printed up cites McGovern’s “considerable amount of political activism” and “significant notoriety in the national media” as if those points were somehow relevant to his inclusion on the watch list. Though McGovern is a thin man, age 75 with no history of violence, Diplomatic Security warns that its agents should USE CAUTION (their emphasis) when stopping McGovern and conducting the required “field interview.”

    A Dangerous Man

    What did McGovern do to end up on Diplomatic Security’s dangerous persons list? His offense was to turn his back on Hillary Clinton, literally.

    In 2011, at George Washington University during a public event where Clinton was speaking, McGovern stood up and turned his back to the stage. He did not say a word, or otherwise disrupt anything. University cops grabbed McGovern in a headlock and by his arms and dragged him out of the auditorium by force, their actions directed by a from the side by a third man whose name was redacted from public records of the event. Photos of the then-71 year old man taken at the time of his arrest show the multiple bruises and contusions he suffered while being arrested. He was secured to a metal chair with two sets of handcuffs. McGovern was at first refused medical care for the bleeding caused by the handcuffs. It is easy to invoke the words thug, bully, goon.

    The charges of disorderly conduct were dropped, McGovern was released and it was determined that he committed no crime.

    And one more thing: the speech Clinton was making at the time of McGovern’s protest and arrest? She was condemning authoritarian governments who repress dissenters and internet freedom. As McGovern was being dragged out, Clinton stated that “The government does not want the world to watch,” in reference to Egypt, not her America as unfolding before her eyes. Clinton did not acknowledge the arrest, never broke character as it happened.

    An Enemy of the State

    In old-timey America, that might have been the end of McGovern’s troubles. However, in our post-Constitutional America, it was only the beginning.

    Despite all charges having been dropped against McGovern and despite having determined that he engaged in no criminal activity, the Department of State then opened an investigation into McGovern, including his political beliefs, activities, statements and associations. The investigative report noted “McGovern does
    seem to have the capacity to capture a national audience – it is possible his former career with the CIA has the potential to make him ‘attractive’ to the media.” The investigation ran nearly seven months, and resulted in the Be On The Lookout Alert.

    Subjects of such alerts are considered potential threats to the Secretary of State. Their whereabouts are typically tracked to see if they will be in proximity of the Secretary. If Diplomatic Security sees one of the subjects nearby, they detain and question them. Other government agencies and local police are always notified. The alert essentially constitutes a standing directive by Diplomatic Security that the subject be stopped and seized in the absence of reasonable suspicion or probable cause that he is committing an offense. Stop him for being him. It is easy to see how these directives slash across the Fourth Amendment’s prohibitions against unwarranted search and seizure.

    Subjects are also not allowed inside any State Department facility, including embassies and consulates abroad where typical Americans are by treaty allowed to seek refuge and protection. But not for Ray McGovern.

    McGovern v. John Kerry

    As we’ve said, McGovern is no typical guy. On February 15 he filed a lawsuit against Secretary of State John Kerry and his State Department, as well as George Washington University where the arrest took place, claiming his First Amendment rights were violated by unlawful police misconduct in retaliation for his act of protest. He also is suing over violation of his Fourth Amendment rights due to excessive use of force and his wrongful arrest. McGovern seeks injunctive relief prohibiting the State Department from directing law enforcement stop and question him on sight.

    We’ll keep track of the lawsuit and report on its progress.

    Why I Know So Much about BOLO Alerts

    Information reluctantly made available to me as the State Department sought to persecute, prosecute and /or fire me for my whistleblowing book, We Meant Well, showed that I too was and may still be subject to a Diplomatic Security alert.

    After a blog post I wrote in 2011 that was deemed insulting to then-Secretary of State Clinton, and after over two decades of public service, my State Department access card was impounded, I was marched out of the building and I was given a letter stating I was prohibited from entering any State Department facility, domestic or abroad. When a bit of necessary bureaucratic business came up a week or two later, I was told that I could only enter the State Department building as far as the public lobby, where I would be met by the appropriate Human Resources person in the presence of security personnel.

    State later was forced to reveal that not only was I placed on its own Diplomatic Security watch list, but also on the Secret Service’s watch list, as they share responsibility for Clinton’s security as a former First Lady. McGovern may want to check on that.

    My lawyers sought to have State remove me from the lists. State refused to confirm or deny my continued presence on the lists. State did not respond to my several requests for this information under the Freedom of Information Act.

    Post-Constitutional America

    Diplomatic Security knew of course I was no threat to anyone. I’m a fat old guy, short, and had a clean track record inside the Department since the 1980′s. Same for Ray McGovern; the cops that mistreated and arrested him for standing silently knew damn well he was neither disrupting anything nor a threat. They knew exactly what the First and Fourth Amendments said.

    And they didn’t care.

    This is what post-Constitutional America is about. The government, from major issues such as extrajudicial drone killings down to the pettiness which preoccupies the bullies in places like Diplomatic Security, no longer cares whether its actions are legal, and no longer cares if everyone knows it.

    From the Founders forward, government has always done illegal things, naughty things, things that it knew were likely unconstitutional. What is new is that the acts have scaled up significantly, moving from analog to digital, and that the government is so sure that neither the courts nor the People will object that they no longer even go through the motions of hiding what they do.

    Remember, both the Stasi and the Nazis did what they did quite openly, and kept excellent records.



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    Posted in Democracy, Post-Constitution America

    The Tao of Political Ambassadors

    February 17, 2014 // 20 Comments »

    The United States is the only first world nation that allots ambassador jobs as political patronage.

    You don’t have to know anything, or have any specific background or training, to be the president’s personal representative abroad and conduct foreign policy on behalf of the World’s Most Powerful Nation (c). You do have to donate heavily to the president to buy one of those appointments.

    Back during my own 24 years working for the State Department as a diplomatic serf my mother asked what I’d have to do to make ambassador. The answer was simple: dad needed to die young, and mom should donate the entire inheritance to the winner of the next presidential election. I’d get appointed and hobnob with State’s elite!

    For so many reasons, I am glad dad is still alive.

    What is an Ambassador?

    The U.S. ambassador is the head of the embassy in a particular country, and serves as the senior representative for the United States there. S/he interacts personally with important leaders of the host country, negotiates on behalf of the U.S. and serves as America’s public face and mascot, appearing in the media, making public appearances and hosting social events that in some parts of the world are the primary venue for serious business. Some say it’s an important job. Guys like Ben Franklin and Thomas Jefferson did it once.

    Embassies are otherwise primarily staffed by foreign service officers, folks from the State Department who are diplomatic professionals. The question here is between those two groups– political hacks or trained professionals– who should be an ambassador?

    Is the U.S. Exceptional?

    The U.S. is exceptional, because every other major country in the entire known universe answered the question already: being an ambassador is a job for professionals. It makes sense that a person who likely has already served in a country, who probably speaks the language and who is familiar both with U.S. foreign policy and the mechanics of diplomacy might do a better job than a TV soap opera producer who turned over $800,000 to the president’s campaign (true; see below.) Why, in almost any other setting other than U.S. politics, that would be called corruption.

    Bipartisan Patronage

    A quick note to people of the internet. Every political party in power doles out ambassadorial appointments as patronage, and has, from the 19th century to the present day. Democrats, Republicans, Whigs, the Boston Tea Party and all the rest did it and do it. Obama is slightly ahead of the 30 percent historical average, though many pundits are over-weighing his second term picks because he is filling his First Class (i.e., political posts) before the generally mediocre locations allocated to career jobs. This is true bipartisan sleaze, an issue we can all get into regardless of our views on other issues.

    Yet despite the clear record of patronage, the State Department insists that political campaign donations have nothing to do with diplomatic nominations. “Either giving or not giving money doesn’t affect either way. It doesn’t make you more or less qualified,” deputy spokeswoman Marie Harf told reporters this week. Talk about your credibility. You could almost watch it drain out of the spokeswoman as she spoke the words with a straight face.

    Why It Matters

    Many, many politically appointed ambassadors are frighteningly unqualified. Sure, many don’t have a clue about the country they’ll serve in and very, very few have any language skills or experience in diplomacy. Some haven’t even been abroad, except maybe a bus tour or two. The latest crop, however, are reaching new heights of stupidity:

    –The nominee to China admitted he’s no expert on China;

    –The nominee to Argentina never set foot there and speaks no Spanish. Same for the nominee to Iceland, who never visited and also does not speak Spanish, though that is less important in Iceland;

    –The nominee to Norway insulted their government in his Senate approval hearing (he was approved by the Senate anyway!)

    –Then there is Colleen Bell, the nominee for Hungary, whose qualifications include being the producer of “The Bold and the Beautiful” TV soap opera, and of course raising $800,000 for Obama. She stammered her way through testimony to the point where John McCain basically begged her to just shut up as a kind of mercy killing.


    Political Appointees in the Wild

    What happens to these kinds of boneheads abroad is not hard to imagine. Some wonderfully extreme cases include the American ambassador to Finland, who sent out official Christmas cards with him in “Magic Mike” beefcake poses and whose signature accomplishment is basically renovating his own office. A political appointee ambassador to Kenya paralyzed his embassy with personnel demands, including internet access in his executive toilet. The political appointee ambassador to Belgium was accused of soliciting sexual favors from prostitutes and minor children.

    As for many other political appointees, some, like Caroline Kennedy in Japan, understand they are just living photo-ops and stay out of the way of the adults working (which may sum up Kennedy’s entire life.) A few appointees become sentient and actually turn out to be decent managers based on their business backgrounds before being sidelined by State’s incestuous culture. The best political appointees are old pols like Howard Baker, whose Washington connections and political savvy make them at least effective stooges for the president’s personal political agenda, if not always America’s.

    Why It May Not Matter

    The bad news is that there are equal inconsistencies on the side of State Department professionals who become ambassadors outside the political appointee spoils system.

    Many, especially to smaller nations (think Africa, parts of the Middle East), have spent most of their careers in the neighborhood, and have built up significant, trusted relationships. Many of these career ambassadors got to know young leaders long ago, and have kept the relationship intact as those men and women ascended into positions of authority. Pretty cool to call your old buddy and sort out a diplomatic problem using first names and shared experiences as a base.

    There are exceptions to excellence; watch one of our career ambassador’s in a Congressional hearing not know how much money his embassy is spending in Afghanistan nor the U.S. death toll for the year.

    Unfortunately, even for out-of-the-way places, it is very hard to make it to ambassador without sucking up to State’s big shots, even if you have the chops to do the job well. Every careerist at State (i.e., everyone) wants that title, the big house and the limo that comes with the job. As an autocracy, just being the most qualified for anything inside State is rarely enough. That leaves plenty of suck ups, wankers and toadies of the higher ups mucking around to get into an ambassador’s chair. It’s unavoidable.

    The last sticking point on why foreign service officers can make lousy ambassadors is the dual nature of the job. While in most cases the ambassador’s primary task is headline-level “policy,” s/he also is the head of the embassy. Many administrative and personnel issues rise to the ambassador’s office. Most State Department ambassadors have gotten as far as they did based nearly 100 percent on those policy things, and many thus make very poor managers. The best defer the decisions to their own management staff; the worst dive in, wielding power without responsibility and the very worst use the position to settle old scores and promote the interests of their own lickspittles.

    Why It Really, Really Doesn’t Matter

    Critics of political appointee ambassadors inside State are quick to point out that people don’t get appointed as generals in the military. Senior leaders in the Army are expected to have come up through the ranks. Admirals have captained ships. Marine generals have eaten snakes, that sort of thing.

    The reason big campaign donors don’t get appointed as generals in the military is because what generals do can matter, matter beyond at least embarrassing the nation. Not to say all or even most generals make the right calls, but to say that generals need technical knowledge of the services they work for, and the decisions they make literally affect lives and can shape world events.

    Ambassadors are increasingly becoming curios left over from a distant past, before instant worldwide telephone and internet communications, before senior White House officials could jet around the world, a past when ambassadors actually had to make big decisions in far-off places. Nowadays most ambassadors don’t change their socks without “conferring with Washington.” Their own jobs matter less and less, as does the State Department they work with.

    So never mind ambassador slots, which often stay empty for months as donors wrangle for the prime positions. A Government Accountability Office (GAO) report shows that more than one fourth of all U.S. State Department Foreign Service positions are either unfilled or are filled with below-grade employees. These vacancies and stretches at State are largely unchanged from the last time the GAO checked in 2008.

    In government, what matters most gets funded most. There are more military band members than State Department foreign service officers. The whole of the Foreign Service is smaller than the complement aboard one aircraft carrier. The State Department is now a very small part of the pageant. The Transportation Security Administration has about 58,000 employees; the State Department has 22,000. The Department of Defense has nearly 450,000 employees stationed overseas, with 2.5 million more in the U.S.

    In an age of military ascendancy, when State and diplomacy are seen as tools to buy time for later military action instead of as potential solutions themselves, it just might not matter who is ambassador anymore. Of course the man or woman in the chair might best avoid sexual solicitation of minors and inane, embarrassing acts, but really, that’s just a nice thing, not a requirement.

    Old-school political patronage was about giveaways, handing over some largely ceremonial job to a hack. The medieval kings had it down, appointing dukes and grand viziers and equipping them with plumed hats and lots of gold braid while ensuring they stayed out of the way.

    Political appointee or career foreign service officer as ambassador? Why does it matter?



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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    ‘Zero Dark Thirty’ Leak Investigators Target of Leak Probe

    February 6, 2014 // 5 Comments »

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

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

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

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

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

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



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    Posted in Democracy, Post-Constitution America

    Washington Post Continues War on Democracy

    February 2, 2014 // 19 Comments »

    Hagiographer to the stars “newspaper” the Washington Post continues its war on democracy, this shot fired by columnist Walter Pincus in support praise adulteration of the National Security Agency.


    Pincus starts out showing he obviously can’t handle his growing miasma of hallucinations:


    Should the United States engage in secret, covert or clandestine activity if the American public cannot be convinced of the necessity and wisdom of such activities should they be leaked or disclosed?

    To intelligence professionals, that’s a bizarre question. The answer is that the public’s opinion shouldn’t matter, because espionage, clandestine intercepts of intelligence and covert acts carried out by the United States and other governments are often, by their nature, dirty and mostly illegal operations where they are carried out.



    OK, sure, people’s will in a democracy doesn’t matter, people should not be concerned about what is done in their name, and people should not be concerned about intelligence activities that may harm them or “their” nation. Clear enough Walt.

    Pincus goes on:


    The prime reason for secrecy is that you don’t want the targets to know what you are doing. But often in democracies, another reason is that you don’t want your citizens to know what their government is doing on their behalf to keep them secure, as long as it’s within their country’s law.



    Winner! That is exactly right, people in democracies should definately not know what the government is doing. Just sit back with the teevee and trust our Uncle Big Brother. Well, don’t we all feel better now?

    As for “their country’s law” making things nice and legal, one may note that “their country’s law” in the last few years made torture, kidnapping, indefinite detention, assassination, drone killings of wedding parties and children, as well as the establishment of the 21st century’s first offshore penal colony at Guantanamo legal. If the president does it, it’s legal, yes? Now that is a bit awkward, given that Pincus’ newspaper brought down the president who said that.

    Never mind that “law” at various times in history has also made human slavery, genocide, apartheid and other such nasties perfectly legal. See, it’s a Catch-22 Walter, if it is the government that decides what is “legal” then everything the government may choose to do becomes legal.

    But Pincus is not done slandering democracy yet. Speaking of the presidential commission that recommended changes to the NSA’s worldwide spying:


    The panel said a collection effort should not be initiated “if a foreign government’s likely negative reaction” to it being revealed “would outweigh the value of the information likely to be obtained.”



    Obviously hung over when he wrote this, Pincus should check out the phrase “risk versus gain” on Wikipedia, though likely he still peruses 40 year old smut paperbacks for his “research.” Everything in the world is a balance of risk and gain. Perhaps Pincus could elaborate on what was gained from say tapping into NATO ally Andrea Merkel’s personal cell phone versus the potential damage to U.S.-German relations. Or the impact of U.S. political capital lost in return of whatever was harvested by the NSA from intercepts from NGOs such as the World Health Organization, UNICEF and Medecins Sans Frontiers.

    You can read the whole article if you care to spit up your breakfast, though the comments section is actually worth a look. If you do not care to read it, I’ll just hand over a short summary: Walter Pincus is given space in a major newspaper to write that the NSA should be able to do whatever it wants at whatever cost to the United States and you, Citizen, should just remain ignorant and shut up about it. Yo, this is Pincus, out!



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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    Obama NSA Speech: Pretty Words, No Real Change

    January 18, 2014 // 13 Comments »

    Bottom Line Up Front: The details of Obama’s most recent speech about “changes” to the NSA’s surveillance practices reveal that sadly little of substance will change. A few cosmetic touchups, some nice words, issues tossed into the pit of Congress to fade away in partisan rancor, and high hopes that the issue will slip away from the public eye as “fixed.” Not word one about how absent Edward Snowden’s historic disclosures the president would not even be offering this lip service, happy to allow the tumor of spying to continue to grow in secret as he had done for the last six years of his presidency.

    But let’s get specific.

    Announced Changes

    Obama announced that the U.S. will no longer electronically surveil allied, friendly, heads of state. So, Americans, the only documented way to protect yourself from NSA spying is to be chosen as leader of another country. Note that Obama did not specify what he means by allied and friendly (Turkey? Iraq? Brazil?), and he clearly did not outlaw spying on a head of state’s closest advisors, cabinet members, secretaries, code clerks and the like. This is simply a gesture; it is unlikely that any of German head of state Andrea Merkel’s cell phone conversations revealed much terrorist information anyway. Worldwide reaction, the audience to which this was aimed, has been tepid and unconvinced.

    The secret Foreign Intelligence and Surveillance Court (FISA) will need to grant the NSA permission to search the phone records metadata database. Most significant here is that the NSA will continue to compile the database itself. Use of the FISA court remains just the illusion of a check and balance, because either the government is very good at making its case, or the court has become a rubber stamp: that secret FISA court approved all 1,789 requests submitted to it in 2012. Of key importance is the question of what constitutes a “search” and a “record.” FISA decisions and Department of Justice internal legal briefs dramatically broadened the definitions of those words such that a “record” may now consist of every piece of data collected by say, Verizon. It is very, very unclear that this change announced by Obama will have any real-world positive impact on protecting Americans’ privacy.

    Obama also announced that the NSA will face new limits on how far from a target it can search into the metadata. Currently the NSA traces “three hops” from a target: A knows B, C, and D. But once C morphs into a target, C’s three hops mean the NSA can poke into E, F, and G, and so forth. Obama wishes to limit this to two hops, A knows B and C. This is again a false palliative; if a “target” has fifty friends, the two hops rule authorizes access to a total of 8,170 additional people. And there is nothing to stop the NSA from redesignating any of them as a new target and thus allowing the math to expand the two hops rule indefinitely.

    Changes Thrown into Congress

    These are for all intents and purposes just throwaways. Obama knows as well as anyone that a hyper-partisan Congress, already divided on what if anything should be done with the NSA, heading into elections, will never act on these issues. Obama can take the high road and deflect any criticism from his progressive base by pointing a finger at Congress. Democrats can blame Republicans and vice-versa, so everyone wins in the calculus of Washington.

    For the record, even Obama’s Congressional changes are limp. Having private companies instead of the NSA hold data for the NSA to search? What kind of practical change would result from that? A public advocate in the FISA court? A possible, but how many, what staff and resources, what actual role would they play, under what rules of disclosure by the government would they function? The adversarial judicial process that otherwise fuels our legal system, prosecutors and defense attorneys, rules to compel disclosure, cross examination and so forth would not exist as new FISA-only “advocate” rules are created in a pseudo-parallel system. And since the whole process would remain highly-classified, no one outside the government would ever know if such advocates indeed played any role in protecting our privacy.

    The last change Obama threw to Congress concerned some form of privacy protections for foreigners. Again, this is just a sop to our “allies and friends” abroad. A Congress that apparently cares little about the privacy of Americans will never pass privacy protections for foreigners.

    Changes Not Mentioned at All

    What was not even mentioned by Obama is sadly the largest category of all. The list could fill dozens of pages, but the use of National Security Letters without judicial oversight is one of the most significant omissions. In 2012 the FBI used 15,229 National Security Letters to gather information on Americans. In addition, not a word was mentioned about pulling back the NSA’s breaking into the Internet backbone, accessing the key Google, Yahoo, Microsoft servers, the NSA use of malware to spy on computers, the NSA’s exploitation of software bugs, the NSA’s efforts to weaken encryption that puts our data at risk to ease the burden on the Agency of decoding things, the use of offensive cyberattacks, indiscriminate gathering of data in general contrary to the Fourth Amendment’s prohibition against General Warrants and on and on and on and on, at least until the next revelations from Edward Snowden reveal even more NSA tricks being played on innocent Americans.

    But the mother of all omissions from the Obama speech is this one: there is no proof that all of the spying and surveillance, at the sake of our basic Constitutional rights, has resulted in the purported aim of keeping us safe. The White House’s own review panel on NSA surveillance said they discovered no evidence that the bulk collection of telephone call records thwarted any terrorist attacks.

    And there Mr. President is the real change needed. A massive, frighteningly expensive program that does much harm and no good does not need tweaking. It needs to be ended.



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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    My Doctor Can Disclose My Medical Records to the NSA without My Authorization (and so can yours)

    January 16, 2014 // 23 Comments »

    You can learn a lot about a person from their medical records– what’s that STD test all about? Mental health issues? Hiding a health problem from an employer? Terminated pregnancy? Had a medical issue that might expose your sexuality when you don’t wish to do so? Work for the military or government and trying to keep a health issue off their radar by using a private medical provider?


    Your Doctor Can Tell On You

    I read my healthcare provider’s privacy information, those endless pages you click through signing up. After many, many paragraphs describing how they would not share my Personal Health Information (PHI) even with my spouse without my authorization, I ran straight into this (emphasis added):

    We may sometimes use or disclose the PHI of armed forces personnel to the applicable military authorities when they believe it is necessary to properly carry out military missions. We may also disclose your PHI to authorized federal officials as necessary for national security and intelligence activities or for protection of the president and other government officials and dignitaries.

    I checked a few other major insurance carriers, including Blue Cross and Blue Shield, and they all have the identical language; check yours.

    In other words, your doctor does not need your authorization to share your health information with the government. If the NSA asks for it, they get it. I found no provision requiring your medical provider to tell you the information was passed to the government.


    HIPPA is the Reason

    I asked about this in person at the Member Services office. They were polite, but referred me to their toll-free Member Services number. After a few rounds of Touch Button 1, a very nice woman at the telephone Member Services referred me to their “Congressional Representative.” On hold for a few minutes, then cut off. Called back and worked through the Press Button 4, say Your Birthdate system. Back to Member Services and another long explanation of what I was looking for. In the (ironic) interest of my privacy, I had to reconfirm my name and date of birth more than once. My call was recorded. The Congressional Representative had no idea what I was talking about, and I had to walk her through her company’s own online document. On hold while she checks with a supervisor.

    After quite some time, the person said disclosure to the government without my permission or knowledge was authorized by the Health Information Portability and Accountability Act (HIPPA). I asked her if anyone else had ever asked about this and she said “Not in my personal experience.” Did she know anything more? No. Was there someone else I could speak with? No.

    Protecting Your Privacy by Disclosing Your Health Information

    The Health Information Portability and Accountability Act (HIPPA) was first passed by Congress in 1996. However, the amended HIPPA, which included the Privacy Rule that permits disclosure for national security purposes, was only added in 2002, post-9/11. Why this amendment? The U.S. Department of Health and Human Services says:

    A major goal of the Privacy Rule is to assure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high quality health care and to protect the public’s health and well being. The Rule strikes a balance that permits important uses of information, while protecting the privacy of people who seek care and healing.

    A law passed to ensure the privacy of our health information has a long list of disclosures allowed without your authorization, including this:

    An authorization is not required to use or disclose protected health information for certain essential government functions. Such functions include: assuring proper execution of a military mission, conducting intelligence and national security activities that are authorized by law, providing protective services to the President, making medical suitability determinations for U.S. State Department employees, protecting the health and safety of inmates or employees in a correctional institution, and determining eligibility for or conducting enrollment in certain government benefit programs.

    A reference is made to another law, 45 C.F.R. § 164.512(k), see page 762 at the link, which refers back to “lawful” activities under the National Security Act.

    For former State Department colleagues, please note the release of your health information without your authorization to the State Department is specifically included, for use in the security clearance process. So all you out there who think you’re hiding something from Diplomatic Security by using a private physician, sorry.

    So Doc, What Should I Do?

    Post-9/11, another law we were told was there to protect our privacy does just the opposite. Right-wing claims that Obamacare will let the government into your health records are way out of date. Your healthcare provider is now part of the metastasizing national security state. Be very afraid, but for God’s sake don’t discuss your fears with your doctor.


    Bonus: When I requested my own medical records, I was told it takes two weeks and I have to pay a copying charge. I’m thinking it might be easier to just file a Freedom of Information Act request with the NSA for their copy.



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    Posted in Democracy, Post-Constitution America

    Whistleblowing is About the Message, Not the Messenger

    January 9, 2014 // 18 Comments »

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


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

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

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

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

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

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

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

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

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


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



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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    NSA and Corporate Cooperation Revealed

    January 3, 2014 // 16 Comments »

    The latest NSA revelations reveal deeper and more insidious intrusions into our lives, and show deeper collusion between the government and private enterprise. If you really, really think this is OK because you have “nothing to hide,” you better be damn sure that’s the case.

    Back Doors

    It is now apparent that the NSA co-opted nearly every piece of electronics present in our lives. Der Spiegel reports that the NSA has found ways to slither through most firewalls and work around most security systems. This dirty work is done primarily via malware, computer code created by the NSA that is implanted in the targeted device to do the NSA’s bidding. This malware most commonly creates a “back door,” a new, hidden pathway into some computer system.

    NSA Lies about BIOS Attacks

    We also learn that the NSA, which only recently used the American TV news magazine “60 Minutes” to warn about a new form of Chinese cyberattack, actually employs the very same technique. NSA Information Assurance Director Debora Plunkett spoke in near-apocalyptic terms:

    [She] revealed the discovery by one of her 3,000 analysts of a secret computer weapon that could destroy any computer it infected. She would not name its origin, but 60 Minutes has learned it was engineered in China. The NSA allowed Plunkett to talk about it for the first time in detail. She says it was called the Bios Plot, for the foundational component, the Bios, that all computers have that performs basic functions like turning on the operating system and activating the hardware. The attack on the Bios would have been disguised as a request for a software update. If the user clicked on it, the virus would turn their computer into “a brick,” says Plunkett.

    “One of our analysts actually saw that the nation-state had the intention to develop and deliver, to actually use this capability to destroy computers,” Plunkett says. If successful, says Plunket, “Think about the impact of that across the entire globe. It could literally take down the U.S. economy.” The NSA quietly worked with computer manufacturers to eliminate this vulnerability.


    However, quite apart from “quietly working with computer manufacturers to eliminate” a BIOS attack, the NSA quietly worked to exploit BIOS attacks of its own making. Der Spiegel tells us:

    [NSA] developers have a clear preference for planting their malicious code in so-called BIOS, software located on a computer’s motherboard that is the first thing to load when a computer is turned on. This has a number of valuable advantages: an infected PC or server appears to be functioning normally, so the infection remains invisible to virus protection and other security programs. And even if the hard drive of an infected computer has been completely erased and a new operating system is installed, the malware can continue to function and ensures that new spyware can once again be loaded onto what is presumed to be a clean computer. The developers call this “Persistence” and believe this approach has provided them with the possibility of permanent access.


    A Look How Deep the Rabbit Hole Goes

    In a way, however, the most insidious technique the NSA employs is in a way one of the simplest. Der Spiegel reveals that the NSA intercepts computers and other eletronic hardware being shipped to a “target,” alters them, and then sends them on to be received and used by the target, albeit with the NSA software and/or hardware installed.

    Let’s break this down.

    Once the NSA identifies a “target” (whom we’ll refer here to as “You”), the NSA needs to know when You order a new laptop they want to intercept. That means the NSA has to spy on Your credit card, Your online activities and/or probe into the ordering systems of places like Amazon, Dell and the like. Perhaps there is a sort of “no fly” list distributed to manufacturers that requires notification to the NSA when someone like You on it buys something. Or all of the above.

    The NSA then must know when and how Your laptop will be sent to you. That means they need to have been accessing the computer systems of Amazon, Dell and the like, and/or UPS, Fedex and other shippers. Or all of the above.

    The NSA then has to have physical access to the warehouse of the shipping company. Or, the shipping company has to agree to mark your package, and deliver it instead to an NSA location. That all means the shipping companies are in on the NSA plot, or the NSA has to be hacking into the shipping companies’ data systems and substituting their address for Yours.

    Once in NSA hands, Your package has to be opened, and Your laptop must be altered in some undetectable way. They can’t steam open a box like a letter in the old movies; someone has to open it physically and then get it all buttoned up again without a trace. Does the NSA have a way to unstick packing tape and reseal internal bags, or do they have a ready supply from Dell and Apple of packing materials?

    Lastly, the NSA has to return the package into the shipping stream. That means the box, with say Amazon’s return address and Your home address, has to reenter say Fedex’s system from a third location without too many people knowing it happened. It would not do for the low-level UPS guy to pick up a ton of boxes everyday from a nondescript warehouse, all with third-party address labels. This strongly suggests cooperation by the shipping companies.

    You then open Your new laptop on Christmas morning. Yeah, be sure to select a secure password.

    Private Enterprise as Tools of the National Security State

    After a lot of denying and prevaricating, the telecommunications companies of the United States admitted they work hand-in-glove with the NSA under a secret portion of the Patriot Act to collect and transfer data about You. Verizon also hacked its own wireless modems to allow the FBI easier access to You. Microsoft collaborated to allow Your communications to be intercepted, including helping the NSA circumvent the company’s own encryption. Microsoft also worked with the NSA to grant easier access to its cloud storage service SkyDrive with Your documents. One technology expert speculates the NSA embeds back doors inside chips produced by U.S. corporations Intel and AMD. There are many more examples of corporate cooperation, as well as corporations appearing to “not know” about NSA intrusions deep into their systems and products.

    After I first published this piece on Firedoglake, I got an email from a “strategic communications” firm claiming to represent Microsoft. The email reminded me that “Microsoft offers an adamant and robust denial, writing that ‘There are significant inaccuracies in the interpretations of leaked government documents reported in the media last week,’ and referencing this Microsoft blog post. The communications person “Wondered if you’d consider adding Microsoft’s comments to your blog, rather than just giving one side of the story.” And so I just did.

    What we have here is an example of the depths into which You have fallen. The government has recruited private industry into its national security state, down to the level of the Fedex guy delivering packages to Your door in time for Christmas. For those of You who still foolishly insist that such spying is OK because they “have nothing to hide,” I sure as hell hope You are right, because whatever You do have now belongs to Them.


    BONUS: We would know none/none of this had it not been for Edward Snowden.



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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

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

    December 25, 2013 // 10 Comments »

    (This post is not suitable for children)

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

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

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

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

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

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

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



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    Posted in Democracy, Post-Constitution America

    Whistleblowers Write Open Letter to Federal Employees after Snowden

    December 23, 2013 // 5 Comments »



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

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

    We’re all depending on you.

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

    The Letter

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

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

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

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

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

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

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

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

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

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

    One of them is you.

    You’re thinking:

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

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

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

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

    Courage is contagious.

    Signed by:

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



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    Posted in Democracy, Post-Constitution America

    Onward, Christian Soldiers!

    November 25, 2013 // 10 Comments »

    You people all hate them Muslims and want to see them go to hell, amiright? Well, maybe some do, and American can-do companies are filling that market niche. May God, Allah, Buddha and whoever else is out there have mercy on our blackened souls.


    Pork-Coated Bullets

    First up, you need some Muslim-hating ammo. Sure, a regular round can kill your average Terrorist, no problem, but then he is off to those virgins awaiting him in Paradise. Can’t have that, so you need to use Jihawg Ammo, made by South Fork Industries in Idaho. This speciality ammunition is actually coated with pork in the idiotic belief that if it penetrates a Muslim body said Muslim will die and go to hell as he is impure. This is based on the only-in-Idaho interpretation of the Koran that the dead guy is now spiritually unclean and thus unworthy. Guys, really, I remember my first beer, too, but just shut up.

    Here is what the company actually says about itself:

    In the fall of 2010, patriots from Idaho County, Idaho sat around a campfire enjoying an adult beverage. The discussion turned to concern and disgust that a mosque was being built at ground zero. Everyone in attendance agreed that freedom of religion is paramount for all peoples of Earth but this showed poor taste and had a sense of “rubbing our noses” into 9/11 tragedy. The discussion turned toward possible solutions to stop such a great insult.

    With Jihawg Ammo, you don’t just kill an Islamist terrorist, you also send him to hell. That should give would-be martyrs something to think about before they launch an attack. If it ever becomes necessary to defend yourself and those around you our ammo works on two levels.

    These bullets are “Peace Through Pork” and a “peaceful and natural deterrent to radical Islam” so a Christian shooter “Put Some Ham in MoHAMed.” “The nullifying principle of our product is only effective if you are attacked by an Islamist in Jihad.”


    Yes, they have a Facebook page. Good news: since the pork ammo is still ammo, you can also use it to kill your Christian girlfriend after you get drunk and start yelling at her for wearin’ those cheap outfits like some Jezebel.

    Bible Verse Military Rifle Sites

    Bringing the wrath of the Christian God against Muslims cannot be done solely with the eyes God gave to the shooter. No, righteous killing requires a good scope to put steel on flesh properly.

    Luckily, the Trijicon company has a $660 million multi-year contract to provide up to 800,000 sights to the Marine Corps, and additional contracts to provide sights to the U.S. Army, all inscribed with references to New Testament Bible passages about Jesus Christ. The sights were used by our brave crusaders in Iraq and continue to bring Jesus’ message of love thy neighbor to Afghanistan.

    Trijicon confirmed to ABCNews.com that it adds the biblical codes to the sights sold to the U.S. military. Tom Munson, director of sales and marketing for Trijicon said the inscriptions “have always been there” and said there was nothing wrong or illegal with adding them. Munson said the issue was being raised by a group that is “not Christian.” The company has said the practice began under its founder, Glyn Bindon, a devout Christian from South Africa, where in the past Jesus’ message of love was enshrined in the Apartheid system.

    Good news: the same sights with the same Bible references are exported for use by the Israeli military to also slap down Muslims in their way toward God’s vision of heaven on earth.

    But it doesn’t really matter all that much, because as one Christian commentator remarked, it is unlikely any actual Muslim cares, because to do so they’d have to:

    – have access to an expensive US military rifle sight by this specific manufacturer
    – can read (Afghanistan’s literacy rate is 28%, according to the CIA)
    – can read English
    – know enough about the English-language Bible to recognize an abbreviated reference at the end of a string of letters and numbers
    – either have the reference memorized or have access to a Bible or Torah; and
    – are offended by the presence of that reference.


    Luckily for us, there are no Muslims in the U.S. military, no one on the bad guys’ side can use Google Translate and our literacy programs in Afghanistan have been a failure. God is truly on our side!

    Hate-Based Coloring Books for Kids

    But guns don’t shoot themselves. All that cool bullet and sight tech means nothing if you don’t have a righteous human Christian killer behind it, and what better way to achieve that than to indoctrinate them young.

    Into the breach is coloringbook.com, a frightful pus-filled sore of a web site that sells coloring books to kids with titles such as The Tea Party Coloring Book Why America Loves You, Global Terrorism True Faces of Evil Never Forget and We Shall Never Forget 9/11, The Kids Book of Freedom.

    The Tea Party book promises “many activities including how to start a tea party in your town, a tea party debate club at school and learn about freedom of speech, freedom of the press and freedom to be who you are! The genius of America is how The Tea Party truly reflects, represents and respects its homeland.”

    The 9/11 books are super-keen. They are about:

    Good vs. Evil. To a terrorist, this is a way of life and they do not consider themselves to be radicals, they consider themselves as soldiers. Current examples of modern evil are the Radical Islamic Muslim Tsarnaev brothers,Tamerlan and Dzhokhar one of which became a US Citizen on 9/11/2012. Designed as a consumer friendly, family publication for use with children and adults, this excellent graphic coloring novel helps expand understanding of the factual details and meanings in the War on Terror. Included are detachable printed show case cards with “Faces of Global Terrorism” very similar to the FBI’s ads featuring photos of murderous terrorists and suspects.

    Also included are “terrorist trading cards, inspired by real people, real life and reflecting the truth. Vol. II also includes a government labeled cyber terrorist named Assange and modern day weather underground founder/leader Bill Ayers, a current educator in Chicago Illinois.”

    And here’s some inspiring text from the coloring book, designed of course for children:

    Terrorist Trading Cards clearly identifies the evil that may sit next to you on an airplane, or it could be an avowed Atheist in the lot of your local grocer on a sunny morning.The world should look at them, make fun of them, name them – shame them, recognize who the terrorists are and rid the earth of them.



    Onward Christian soldiers!



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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    Obama and the NSA: Information is Power

    October 29, 2013 // 23 Comments »

    Obama, the president of the United States, Commander-in-Chief and self-proclaimed leader of the free world, says he did not know about his own government’s spying on multiple allied world leaders until quite recently. This means that Obama learned of this amazing thing same as we did, basically via Edward Snowden’s whistleblowing.

    We’ll take a moment on behalf of the president to say:

    “Thanks” Edward for bringing this to my attention. It appears that not all of our allied world leaders have been pleased to learn that my government has been (maybe still is? I gotta check Buzzfeed) spying on them, right down to the level of sitting in on Chancellor Merkel’s personal cell phone chats. Since these revelations affect the foreign standing and policy of the United States globally, I guess Edward I have to say I am grateful you let me know about this all. Hope Moscow is treating you well. Say hi to Julian for me!


    Well, well, about that Mr. President who-don’t-know-nuthin’, there are two possible ways this can go:

    1) Obama really did not know the NSA was spying on world leaders he called friends. This would mean that the NSA and who knows who else inside the government has gone rogue, taking actions independently that threaten the very allied relations the US depends upon to facilitate trade and commerce, build coalitions to support American aims and otherwise deal with a complex, multi-polar world. As such, the NSA has committed the essential elements of treason, aiding foreign powers and damaging the credibility and security of the United States. Obama should thus immediately fire the top several layers of NSA leadership, and appoint an independent prosecutor to look into charges against them.

    Oops– instead of firing anyone, Obama spokesperson Jay “Goebbels was an Amateur” Carney cheered the American public by saying that “the president has full confidence in General Keith Alexander and the leadership at the NSA.”

    2) That leaves only the conclusion that Obama lied. He lied straight into the eyes of the American people, ever gullible, even as those spied-upon world leaders rolled their own eyes in disbelief that the self-proclaimed World’s Most Powerful Man could not come up with a better excuse than total and complete ignorance.

    We Must Protect America (from Spiders!)

    On the subject of lies, the only justification the White House has offered on why it is necessary to conduct all this espionage is that it is necessary to protect America from terrorists. This is indeed important– a recent poll showed that among Americans’ deepest fears, Number One is Death, Number Two is Spiders and Terrorism is Third. Roll them up into terrorist spiders that can kill you and it is one scary image. So Obama is right to want to protect Americans from terrorist spiders.

    The problem is that it is quite unclear how listening in on Merkel’s cell phone might in any way contribute to the fight to protect Americans against terrorists. Is Merkel a terrorist herself, a super sleeper agent spending years working her way into the seat of power of Europe’s leading economy? Does Merkel butt dial terrorists? Does she reveal inside dope on terrorists only on her cell phone calls home asking what’s for dinner?

    Information is Power

    No, no, of course not. Spying on someone like Merkel (or the President of Mexico, et al) has only one purpose: to gather information that can be employed by the United States to coerce, blackmail, threaten or otherwise manipulate.

    Oh sure, the NSA might pick up some tidbits about a negotiating position, or whatever, but that info can be gathered elsewhere at much lower risk and with much more ease. Indeed, the CIA and others are out there as we speak offering money and other sweet goodies to code clerks, systems administrators and foreign diplomats to gather that kind of stuff.

    The NSA and Obama want to know who sleeps with whom. They want to know who has a mistress, who is in an unhappy marriage, who gossips too much. who drinks too much, who likes to gamble, who visits prostitutes, who takes drugs, who has some weakness or vulnerability that can be quietly, maybe cleverly, exploited. This is a very big thing. Nothing as crude as Obama ringing up the Minister of Silly Walks in France and threatening to send over some incriminating photos like in the old KGB/Stasi days. But how about a quiet word dropped in the right place about a powerful leader with some odd connections to a guy who knows a guy who moves dope across southern Europe?

    Information is power, straight as that, and Obama used and will continue to use the NSA to achieve it.

    Oh, by the way, all that NSA spying on Americans, maybe corporate leaders, journalists and other politicians? Yep, same thing.



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    Posted in Democracy, Post-Constitution America

    My Letter in Support of a Reduced Sentence for Pvt. Manning

    October 22, 2013 // 13 Comments »

    According to the Uniform Code of Military Justice, Convening Authorities can reduce or eliminate a convicted soldier’s sentence. They use this power when they feel the court martial failed to deliver justice. As Commanding General of the Military District of Washington, Major General Jeffrey S. Buchanan is the only other individual besides President Obama (and there ain’t no joy there unless Manning qualifies as a Syrian kid) with the power to lessen Pvt. Manning’s sentence.

    This process is not new, nor unique. Though a slightly different judicial procedure, the Air Force Court of Criminal Appeals only in June of this year reduced the sentence of a former Ramstein Air Base staff sergeant who advertised babysitting services to gain access to three young girls he repeatedly sexually assaulted. Staff Sgt. Joshua A. Smith’s sentence was reduced such that Smith, 30, would be eligible for parole after a decade or more. The appellate judges, in their written opinion, said that despite the heinousness of Smith’s crimes against the girls — ages 3, 4 and 7 — the sentence handed down in November 2010 by military judge Col. Dawn R. Eflein and approved by the Third Air Force commander was “unduly severe.”


    If you wish to add your voice to the many now asking for Manning’s sentence to be reduced, the instructions on how to do so are straightforward.

    Here is what I wrote:

    Major General Jeffrey S. Buchanan
    Commanding General, U.S. Army Military District of Washington, DC

    General Buchanan:

    I write to request that as the Convening Authority in the case of U.S. v. Bradley E. Manning you move to reduce Pvt. Manning’s sentence to time served. Pvt. Manning has, in the course of several difficult years of confinement, taken responsibility for his actions and has been punished.

    As the leader of a State Department Provincial Reconstruction Team (PRT) in Iraq, I was embedded with the 10th Mountain Division, 2nd Brigade at Forward Operating Base (FOB) Hammer at the same time Manning was deployed there (though we never met.) I worked closely with Colonel Miller and his team to implement U.S. goals, and came away with great respect for him and his officers, and the enlisted men and women of the Commandos.

    At the same time, I experienced first-hand the austere conditions at FOB Hammer, and the difficult lives the soldiers led. As you are aware, one young soldier tragically took his own life early in the deployment at Hammer. Many veteran soldiers, some who served in the Balkans, also talked about the rough conditions at our FOB. I saw that at times computer security was imperfect. While none of this excuses Pvt. Manning (nor should it; he himself has plead guilty to multiple counts), it does in part help explain it. I ask that you consider these factors in your decision.

    As a State Department employee, I had access to the same databases Pvt. Manning in part disclosed, and back in Washington played a small roll in State’s “damage review.” I thus know better than most outsiders what Pvt. Manning did and, significantly, did not disclose, and am in a position to assess dispassionately the impact. As the State Department and the DoD reluctantly concluded at Manning’s trial, little if any verifiable damage was indeed done to the United States. There is no denying that the disclosures were embarrassing and awkward, but that is not worth most of a man’s life.

    Justice elevates us all, and reflects well on our beloved nation. The revenge inherent in a 35 year sentence against Pvt. Manning does not.

    Very Respectfully,

    (signed)

    Peter Van Buren



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    Posted in Democracy, Post-Constitution America

    Life in the 21st Century State Department

    October 19, 2013 // 10 Comments »

    A recent post, Forbes: State Department Number Three Dream Employer, about how popular working for the State Department is among people who have never actually worked for the State Department, merited a follow-on. Here it is.

    Daniel Garrett was a political officer at the U.S. Embassy in Japan 2008-2010. The State Department decided he just wasn’t their kind of guy, and let him go. I have never met Dan, but his farewell to the Department of State and his advice to Japan bear quoting at length. People considering a career in the Foreign Service should also consider the price they’ll pay.

    Dan, if you’re out there, look me up. I want to shake your hand and buy you a beer. You dodged a bullet, and you should be proud that State pushed you out. Here’s what Dan said:

    I used to walk from the US Embassy over to the Japanese Ministry of Foreign Affairs. If the message I was to deliver was one I didn’t agree with, I used to walk a little slower, wondering if I was selling my soul for a diplomatic passport. Once, for example, I was asked to deliver a demarche about the US position on cluster munitions (basically that the new generation of these weapons was much safer). Japan, of course, has signed the Convention on Cluster Munitions, and the US has not. These horribly indiscriminate weapons (new generation or not) are rightfully banned. For Japan’s signature though to have any real meaning, it cannot allow its major defense ally to store them in Japan: to do so is to be complicit. The US position (as it is with landmines) is wrong and I apologize to the people of Japan for pretending otherwise.

    Once I was asked to deliver a demarche asking that Japan not support a U.N. resolution calling for research into the health effects of depleted uranium. As the children stillborn, or born deformed in Fallujah and elsewhere testify, depleted uranium weapons pose a horrible health risk even after their initial explosive destructiveness. The US position is wrong and I apologize to the people of Japan for pretending otherwise.

    Once I was asked to deliver a demarche to the government of Japan asking them not to vote in the U.N. Human Rights Council to accept the Goldstone report from the U.N. fact-finding mission to the Gaza conflict. Had this report been written by a US State Department Human Rights Officer (as I was) about a country that wasn’t a US ally, it would have been widely praised by the Secretary of State. The US position was wrong and I apologize to the people of Japan for pretending otherwise.

    Once, as a Human Rights Officer, I was approached by a Japanese group, the Victims of the Red Purge, asking that I deliver a letter to President Obama, asking for an official apology for this US occupation-instigated action that cost so many innocent Japanese their jobs and dignity. I wrote a cable which included their letter, to be delivered to Washington with the recommendation that the US move past this mistaken cold war overreaction and issue a formal apology. The Embassy however overruled my recommendation. In fact, US intervention in the domestic affairs of Japan to insure it had a loyal anti-communist ally, driven largely by a hysteric level of anti-communist demagoguery in US domestic politics, resulted in a profound warping of Japanese democracy, a warping which has persisted for a very long time. The US position is wrong and I apologize to the people of Japan for not being successful in obtaining both an apology and a formal statement that during the Cold War, while the US posed as a champion of freedom, and in some cases may have actually been so, in far, far too many countries and locales, it was deeply and criminally complicit in the suppression of many peoples who wanted that freedom, but were so unfortunate as to be under regimes that touted their anti-communist credentials.

    In my own defense, I did try to raise my concerns in various venues. I sent two Dissent Channel cables on climate change, and still recall with a smile the day in the Ambassador’s mahogany-paneled conference room sitting at his magnificently long table across from a solid line of sparkling medal-bedecked military officers when, following a presentation on anti-missile defense, I pointed out that numerous studies (including from our own Congressional Budget Office) have determined that anti-missile defenses don’t work and it seemed to me that we were doing little more than making Raytheon and other corporations and consultants, rich. Ah, the wonderful awkwardness of that moment as if one could almost palpably hear the air escaping from so many punctured pompous balloons.

    And this is where I now ask the people of Japan for help. My country is no longer the country I once knew, a country moving at least in the direction of providing opportunity for all, regardless of income. The tendency to paranoia and international law-breaking was always there, at a low fever, in clandestine and semi-clandestine actions around the world, driven by visions of American exceptionalism pandered onto an all too naïve public. Though I like to believe that there was the intention at least to make the world a better place, in fact these actions were frankly not just frequently amateurish and inept, they resulted in the suffering and death of many. Nor it seems, have any of the lessons been learnt.

    Since 9/11, the United States has adopted a national security policy that can most charitably be described as one of anaphylactic shock. Terrorism ranks with shark attacks in terms of real risk. We have, however, so over-reacted, and misreacted to the tragedy that we have become a danger both to ourselves and to others. We have squandered our treasure in the sands of hubris and misunderstanding, and I often wonder now if the real good that we do has become just a fig leaf to cover our obscenely over-muscled shadowhand-tattooed as it is with empty slogans- that wields death and destruction at the press of a button, but doesn’t know how to build, and doesn’t seem to have the slightest grasp of history. Out of the excesses of our fears, we have perverted our own Constitution, and become a surveillance state in which the government itself moreover has become, in the words of Nobel Prize winning economist Joseph Stiglitz, a “government of the 1% by the 1 % and for the 1%.” With a populace mired in debt, befuddled by vapid corporate media-tainment, and worshiping mindlessly at the rat-race temple of empty consumerism, America is now essentially run by the type of military-industrial-political-banker cabal that President Eisenhower warned about.

    Japan please think twice, thrice about the things America asks you to do. Please be a good friend and send as much of our military home as possible. We cannot afford it anymore. Our poor are getting poorer, our education systems are falling behind, and our infrastructure is crumbling. Say that you are happy to work with us, but only if we find a way to either harness or rein in our greed so as to conserve and restore the earth’s natural systems which are all now rapidly being destroyed. Say that you would be happy to be our friend and ally in the greatest battle ever fought, the battle to preserve humanity and the earth from the now rapidly advancing onslaught of climate change. But do not get caught in the misguided adventurism of a decaying empire that is flailing about at phantoms, while the real dangers that haunts it, -climate change, environmental degradation, and the rapidly growing level of inequality of its own people- have essentially been sacrificed on the altar of a military-industrial-political-financial machine that is its own worst enemy.



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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    Failed Faith: Why Security Clearances Fail (And a Way to Fix Them)

    October 7, 2013 // 9 Comments »

    (This article originally appeared on Fire Dog Lake)

    Whistleblower Edward Snowden had one of the highest levels of security clearance, and exposed the most secret of NSA work. Chelsea Manning held a Top Secret clearance, and disclosed hundreds of thousands of classified records to Wikileaks. Aaron Alexis held a security clearance and used a shotgun to murder twelve people at the Washington Navy Yard. Over four million other Americans today hold some form of security clearance from the Federal government. Can we trust them? How did they obtain those clearances? Are Snowden, Manning and Alexis exceptions, or was the process one that could never have been expected to work in the first place? What can be done to make the clearance process work the way it was intended?

     

    What is a Security Clearance?

    A security clearance is issued by a part of the U.S. Government (Department of Defense, CIA, the State Department) and says that as a result of some sort of background investigation, and perhaps a polygraph examination, the holder can be trusted to handle sensitive documents and duties and to do so in secret. At the low end, this may mean a contractor like Alexis can enter the Navy Yard without a body search, or at the extremes mean that a person will assume a completely new identity, live abroad, and conduct sensitive, clandestine actions on behalf of the U.S.

    Government-wide there are three basic levels of classification and access: Confidential, Secret and Top Secret. There are formal definitions, but the basic idea is that the higher you go up the ladder, the more harm and damage disclosure would create. Added to this three-tiered system are many subcategories, including Sensitive But Unclassified, for well, unclassified things that are still sensitive, such as an applicant’s social security number, Law Enforcement Sensitive and the self-explanatory like. Once more or less the top of hill, Top Secret, TS, is now supplemented by Sensitive Compartmented Information (SCI), often used to denote information obtained from intelligence sources. There also many, many flavors of Special Access Programs (SAP) that require both a very high level clearance and permission to access just that single project. A clandestine operation against Iran, or the identities of spies in Syria, might be in this category. The military also creates its own lexicon of classifications.

    While the range of what “cleared” people do for the United States covers much territory, the clearance process is largely a variation on a single note: let’s look into what this person has said and done in his/her life prior to seeking a clearance, and then try to extrapolate that into what they will do once cleared. But because, like with your mutual funds, past performance is no guarantee of future success, the process is inherently flawed.

     

    How To Get Cleared

    Despite the wide variety of clearances available, the process of obtaining one is similar. What changes is less the process of looking into someone’s life than the depth and granularity of the look.

    Most everyone seeking a clearance begins at the same place, filling out Standard Form 86, Questionnaire for National Security Positions, form SF-86. The form itself is no secret, and available on line, though many agencies have supplemental forms and requirements not public.

    The SF-86 is mainly a very detailed autobiography, the raw material that fuels the rest of the process. Young people filling out their first SF-86 invariably end up on the phone to mom, gathering old addresses they lived at as kids, birthdays of disconnected relatives, foreign countries visited on family trips and more, a lot more: the SF-86 runs some 129 pages. Some interesting stuff is near the end; almost silly questions such as “Have you ever engaged in an act of terrorism?” and a follow-up requiring you to describe, in one line, “The nature and reason for the terror activity.”

    However, after a hundred pages of names and dates and silly questions, the SF-86 dips into the deal breakers, the questions that weed out quickly those who are unlikely to get very far in the clearance process. Applicants are asked to self-describe financial problems, debts, drug use, gambling, drinking, mental health issues, legal troubles, job firings and more. Whether out of duty and honor, or more likely a thought process that the agency will find out anyway and lying is an automatic disqualification (it usually is; if one lies on a security check, what else is fair game to lie about?), most applicants do tell the truth and easily disqualify themselves.

     

    First Level of Background Checks

    Though the details vary from agency to agency, everyone gets some standard checks run on them. Since U.S. Citizenship is the most basic and unwaivering requirement for a clearance, every applicant’s claim is verified. In my own case (I held a Top Secret clearance for 22 years), investigators obtained a certified paper copy of my actual birth certificate from a distant city, and were nice enough to give it to me when the process was over in case I needed it for something. I’m not sure they’re as nice these days.

    Every applicant then gets a run through whatever databases and electronic records can be found. This step is increasingly detailed as more and more of our lives move on line. The goal is to verify quickly as much of the self-provided data on the SF-86 and to skim off the low-hanging fruit. A serious arrest record, neck-deep financial problems and the like will be easily found. Checks are also run through the various intelligence files (a “National Agency Check”) to make sure while you’re applying for a job at the State Department you are not on some secret list of bad guys over at CIA. Before everything went on line that used to happen once in awhile, though now the biggest problem is both too much irrelevant information and the need to wonder about the accuracy of what was found; that record entry from the Pigeon Hollow local police department from 1983– accurate enough to deny someone a career over?

    Absent any whoppers uncovered, most applicants are given a chance to explain abnormalities. Some say this is to be fair, some say it makes the agency’s job much easier if the applicant will either self-incriminate with even more details, or just voluntarily withdraw knowing she was caught.

    For some low-level or short-term clearances, the process can stop here and a decision is made. The time period varies, but usually is in the area of a couple of months for a background-only clearance. Much of this work, due to the volume and perceived simplicity of the process, is farmed out now to private contractors. Alexis, the Navy Yard killer, had such a background-only clearance, done by a contracting firm in Northern Virginia that specializes in such work for the government. The same firm worked on a part of Edward Snowden’s clearance.

     

    Full Background Investigation

    For higher level clearances, including Top Secret, a full spectrum background investigation is required. Someone, typically a combination of someones including agency investigators and contractors, will comb through the SF-86 and whatever the electronic searches uncover and conduct field interviews. The investigator really will visit an applicant’s home town school teachers, 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, basically giving the government permission to do all this as intrusively as the government cares to do. This is old fashioned shoe leather police work, knocking on doors, eye balling people who say they knew the applicant, turning the skepticism meter up to 11. The investigator will ask each interviewee to keep quiet about the interview, but typically the applicant will get a hushed phone call or email from some old acquaintance saying the Feds just knocked. Many of the contract investigators at this level are retired FBI or Secret Service people and often will present their old ID to add some gravitas to the procedure. If an applicant lived abroad, the process is tasked out to various liaisons and the nearest U.S. Embassy.

    The process is proactive; the investigator must find people to talk to who know the applicant. If he can’t (say wrong addresses, or no one from the USG can track down an old college roommate now in Tehran) the investigation often “pauses,” sometimes indefinitely. Not being able to find adequate information on an applicant is a big negative.

    As you can imagine, this process is not quick. Most full background investigations take at least a year and complex lives, especially if the applicant has lived abroad and has many foreign contacts, can drag… on… for… years… All this on-the-street work does not come cheap. It is hard to put a number on it, as obviously the complexity of the applicant’s life will dictate costs, but a full background investigation can run $15-20,000.

     

    The Box

    For many agencies, including the CIA and NSA, another step in the clearance process is the polygraph, the lie detector. The federal government polygraphs about 70,000 people a year in connection with security clearances.

    What portion of the polygraph process that isn’t shrouded in movie drama is classified, but the basics are simple; even TV’s Mythbusters show looked into it. The process is based on the belief that when one fibs one’s body involuntarily expresses stress in the form of higher blood pressure, changes in pulse, breathing and perspiration rate. Those things can be precisely monitored. Did you ever steal anything? No? That’s a lie– see here, your heart rate went up 15 percent when you answered.

    The reality is much more complex. Though I have never been polygraphed, I have spoken with many government employees who have been. Here’s what they had to say.

    The whole polygraph experience is set up as a mind game. Subjects can be kept waiting a long time, or left in a too-cold or too-hot room, and interviews can be scheduled and then canceled to create stress. A planted staffer in the waiting room can tell the applicant they are being watched, even make a comment such as “You shouldn’t read that kind of magazine while waiting, they judge that too.” There may be mirrors, real or imagined two-way viewing panels. This is referred to as the pre-test. It sets the stage.

    Some say that the presence of the polygraph machine itself may be mostly for show, and the real nuts and bolts of the process are actually just clever manipulation and interrogation techniques as old as dirt. An awful lot of information obtained via a polygraph has nothing to do with the needles and dials per se, but the applicant’s fear of them and belief that they “work.” Polygraphers are allowed considerable freedom in style, and some get more into role-playing than others.

    That said, most polygraphers will first establish baseline readings with irrelevant questions– “Is your name John?” Yes. “Is your name Micheal?” No. He will try and put the subject at ease, asking softball questions such as “Do you plan to tell the truth today?” Nobody can answer no honestly (it is believed) and this helps create a trusting atmosphere where the polygrapher assures the subject that everyone has told little lies and his job is to sort those out from the “big” ones. The polygrapher will also likely point out things on the charts or “explain” the details of his work; the goal is to plant the idea in the subject’s head that the machine is an accurate way to detect lies. This sets up the next phase.

    The polygrapher will have reviewed the background investigation results and slowly move into the meat of the interview, asking both broad questions– “Do you have a drinking problem?” and specific ones– “Then why did you have this DUI in March 2003?” Many times the got ya’ question, including a why or when or who, is really a way to play off the applicant’s fear and get her to talk. Look at the sequence above. It is unlikely that someone will admit to a drinking problem, yet the next query is about an actual DUI. The applicant’s natural inclination will be to explain, to talk about the DUI, all the time knowing her answer is being run through a “lie detector.” Often the applicant will self-incriminate.

    Lastly, there is the post-interview test, often the time when the most information is disclosed. The subject feels at ease, having “finished” the polygraph. One tactic is, after a lengthy review of the charts and after much hemming and hawing, maybe a sigh or two and a consultation with “another expert” outside the interviewing room, the polygrapher comes in and says “I think you’re a nice kid, and I like you. I know you want this job and I want to help you get it. The problem is, here (gestures to some squiggly line marked in red), where you said you never used drugs, the machine indicates you might not have told the truth. Now, look, I’ll turn off the machine and you just tell me what really happened and I’ll try to go to bat for you.” Self-incrimination follows, game over, thanks for playing today!

    In some instances, only a limited polygraph will be conducted, as opposed to a full-lifestyle test. In a “coordination of expectations” test, used in many military and update-only situations, very specific and limited questions will be asked. Sometimes the subject will even know the questions in advance, such as “Since your last polygraph, have you transferred classified information without authorization?”

    There exists a point of view that the polygraph is indeed more useful than simply as a prop, and that you can “fool the box” physically and pass the test. There are people who purport to teach tricks and techniques designed to do so. The basic idea is to register false anxiety during true relevant questions, thus making your real anxiety on lies less clear. People are taught to clench their sphincter to induce a measurable but false stress reaction, to bite their tongue or to place a tack inside their shoe to poke themselves and send pain-induced stress indicators. Others teach a kind of meditation. As counter-countermeasures, there are rumors of polygraphers placing real or fake “stress” pads on the seats of chairs, and inspecting applicants’ shoes. For the most part, however, the Feds just poo-pooed these ideas, claiming over the years that they were a waste of money because they just did not work.

    Interestingly, however, the government has very recently changed its position, and is now actively seeking to prosecute those who teach “how to beat the box.” Prosecutors have raised the specters of terrorists infiltrating the CIA, or pedophiles securing sensitive positions. The possibility that the prosecutions are only security theater is also real, an expansion of the mind game, given that despite the prosecutions strategies for passing a polygraph are still just a Google away, including on the ever-so-pedestrian WikiHow.

     

    Adjudication

    Up to this point the clearance process has been mostly the aggregation of information. Along the way some applicants might be picked off, people whose U.S. Citizenship wasn’t verifiable, people who made whopping self-incriminations, applicants scared off or afraid what the process might reveal. But overall, most applicants for a clearance end up in Adjudication. And in Adjudication lies the core problem in the clearance process: it relies on human judgment.

    The basics of an adjudication look at vulnerabilities, and especially at past examples of trust kept or violated.

    Vulnerabilities are more concrete, and thus easier, to determine. Historically, people betray their country’s trust for (in rough order) money, sex, ego or ideology. People with loads of debt or a gambling problem are more susceptible to bribes. People with records of infidelity or a pattern of poor judgment with partners might be lured into sexual encounters that could be used to blackmail them. In the bad old days when most gay and lesbian applicants were deeply closeted, this was used as a one-size-fits-all pseudo-reason to deny them employment. Ego is a tougher one to pin down, but persons who lack self-esteem or who want to play at being a “real spy” might be tempted to become “heroes” for the other side. Ideology is a growing issue as more and more hyphenated Americans seek government work and, needing qualified language employees, more and more are recruited by the government. Will a Chinese-American’s loyalty fall to her new home or to the old country? What about a born-and-bred whitebread American, but with a spouse from Egypt? Would his allegiances be blurred? Even if he bleeds red, white and blue, could the Egyptians cajole, blackmail or threaten his spouse’s parents back home to make him cooperate?

    Back in the good old days, when qualification for high level positions required one to be male, pale and Yale, these things were less of concern. Fathers recruited sons, professors noted promising students and no one thought much about the messy range of people now eligible– or sought– for government work. Need fluent Pashtu speakers? You’re going to have to recruit farther afield than the country club. Agencies who used to toss back into the pond pretty much anyone without a pristine background now face unfilled critical positions. So, standards change, always have changed and will continue to change. Security clearances just work that way.

    If vulnerabilities seem sometimes ambiguous to adjudicate, the next category, trust, is actually much harder. Persons who have kept trusts extended to them, not been fired, not broken laws, paid their bills, saw to their responsibilities, are in the Nice category. Those who didn’t end up over in Naughty. The adjudication part becomes important because very few people are perfect, and very few are really bad. Most everyone falls in the middle, and so agencies must make judgment calls.

    For example, in modern America some casual drug and alcohol abuse is not outside the boundaries of normal, especially when it is self-admitted, and done when a person was young and maybe in an experimental phase of life such as college. So, while twenty years ago copping to smoking some weed was an automatic no for a clearance, now, hypothetically, a 26 year old grad student who says she might have smoked a joint four years ago at a party but didn’t like it so did not do it again, and who passes her current urine test, might be approved. Same for debt; it is not unusual for an American today to carry heavy credit card debt or a six figure student loan, but if he’s paying it off, maybe not so bad. Mental health issues are tricky; again, nowadays seeing a mental health professional and taking common meds like anti-depressants is a very commonplace thing with little stigma attached. The key issue under question is whether or not an applicant’s judgment is impaired by a mental health condition, and often real medical professionals get involved to sort this out.

    There are rules and standards for these adjudications, some of which are even on line. The problem is not having or knowing the rules, the problem is figuring out how to apply them. In one of my own assignments at the State Department, I was part of a group that reviewed background investigative reports. I saw a lot of them, mostly new applicants, and was part of a process that was used to help determine “suitability” for employment. The easiest way to win a fight is not to get into a fight, and so instead of formally denying a security clearance and opening a potential can of worms, some agencies conduct a suitability review to basically weed out people unlikely to get a clearance, on a more amorphous, less-challengeable, vaguer not-so-legalistic basis. Different hallway to the same exit door, it is the clearance process at work nonetheless.

    The adjudication process as I saw it was taken seriously. We were taught to look for patterns of life and not at isolated incidents. The goal was to try and come up with a picture of the person, and then project that picture forward into what they might be like on the job. Like any human-powered process that attempts to predict the future, it was flawed. After pushing the Eagle Scouts to one side and the convicted arsonists to the other, there was always a big pile left in the middle. And we knew that at least statistically we probably made some errors approving the Eagle Scouts and some mistakes turning down at least a couple of the arsonists. The race is not always to the swift and sure, but that’s the way you have to bet.

     

    So How Did Snowden, Manning and Alexis Get Cleared?

    Snowden is the easy case. Based on what is publicly available, Snowden was a slam dunk approval. He had held high level clearances with the government for many years without issue. He did not have any drinking, drug, debt, mental health or personal problems. He seemed like a relatively dull guy actually. Nothing in the security clearance process could have ever peeked into his head and found that he was a person of conscience who decided to blow the whistle and radically alter his life to bring the NSA’s sleazy, illegal activities into daylight. While the NSA certainly should be blamed for unbelievably lax internal controls on who could access and copy its data, the clearance process worked exactly as it was designed to work. Claims that short cuts in the process were at fault are wrong.

    Chelsea Manning is at best a gray area, and likely should never have been given a clearance. She made little attempt to hide her gender confusion inside a hyper-macho world, struggled against the Army system at every turn, fought physically with her supervisors and was alienated and ostracized by her peers. Despite all that, she was deployed into an environment where counseling was unavailable, where security and supervision were lax to the point of criminality and where the stresses of combat conditions pressed heavy on everyone. It is unclear why she was cleared, though the most likely reason was that the Army was desperately short of analysts and could not afford to lose one, even one stuck in a slow-motion train wreck.

    Alexis, the Navy Yard killer, should never have been granted any security clearance. His was a preventable tragedy. Because he held only a lower level clearance, it is very likely that no field investigation took place. All those friends and family members the media found who readily told of his problems with hearing voices, violence and drink were likely never interviewed by the government contractor assigned his case. One screaming red flag, Alexis’ lying about a gun-related arrest, was not considered significant. The system failed for various reasons to pick up on his string of other arrests, and no one seemed to care about his uneven service record in the Navy. Clear human error, likely as a result of turning such clearances over to the for-profit sector.

     

    What’s Next?

    Picking up on Alexis in particular, it is important to note that the clearance process is not a real-time endeavor. Someone applies, some sort of background check is done and a clearance decision is adjudicated. Next case, please. Most clearances are only reviewed every five years and then investigators lean heavily on anything new or changed, and especially on the subject’s performance those five years. There is no 24/7 continuous reevaluation process. A felony arrest properly documented might pop up, and many agencies yearly run standard credit checks and conduct random drug tests. But overall, absent something self-reported or too obvious to ignore, a clearance rides for five years, sometimes literally with no questions asked. How could it be otherwise with over four million active cleared Americans strung across the globe?

    Following Snowden, Manning and now Alexis, much noise will be generated about “doing something.” But what? Dramatically increasing the number and scope of on-the-street investigations will spiral wildly into crazy expenses and even longer waiting periods. It could bring the hiring process to its knees, and spawn more and more “temporary clearances,” a self-defeating act. This all with no assurance of better results due to both limitations on the whole concept (see Snowden) or human judgment errors (Alexis). If done properly, such changes might catch a few of the Alexis’ out there, but to be honest, there are few Alexis’ out there to begin with and most of them will be sending up obvious danger signals at work long if anyone would pay attention before a clearance review catches up.

    It is certain that many in the government will call for more aggressive “monitoring” of employees, having them sign away basically all of their civil rights in return for a job. The government will turn its vast intelligence gathering tools further inward and end up pointlessly compiling CIA officers’ credit card receipts from Applebee’s, the web browsing habits of diplomats’ children and so forth. In truth, a lot of that is probably already going on now anyway (the CIA and other intel agencies have had for years robust counterintelligence operations designed specifically to spy on their own spies.) Yet as noted, even ramped up, real-time monitoring would not have caught the current Snowden and is unlikely to catch the next Snowden (albeit to the nation’s broader benefit!) You just can’t see into a person’s head, or his heart.

    In addition to a huge waste of money and resources, these measures will inevitably lead to more mistrust and paranoia inside government. Lack of sharing (the CIA believes things it shares with State get leaked, the Army won’t give things away to the Navy, the FBI hoards info so as to not let another agency get credit for the bust, the NSA doesn’t trust anyone, and so forth) is already an issue among agencies, and even inside of agencies, and helped pave the way for 9/11. In addition, handing even more power to security teams will also not work well in the long run. Hyper-scrutiny will no doubt discourage more decent people from seeking government work, unwilling to throw their lives open for a job if they have prospects elsewhere. The Red Scare of the 1950s, and the less-known Lavender Scares, when labeling someone gay inside government would see him fired, show what happens when security holds too many cards. James Jesus Angleton’s paranoid mole hunting at CIA, which ruined many careers, is still a sore point at Langley. In my own case, my unblemished clearance of 22 years was suspended because of a link on my blog. The link was pedestrian but the blog offended the State Department politically, and security was the tool they tried to use to silence me. No, unleashing the bullies won’t help.

     

    Fixing It: Less is More

    As a wise man once said, cut through all the lies and there it is, right in front of you. The only answer to the clearance problem is to simply require fewer cleared people inside government.

    This will require the tsunami of document classification to be dammed. In FY2009 alone, 54 million U.S. Government documents were classified. Every one of those required cleared authors and editors, system administrators and database technicians, security personnel and electronic repair persons. Even the cafeteria personnel who fed them lunch needed some sort of vetting.

    With fewer people to clear, always-limited resources can be better focused. Better background checks can be done. Corners need not be cut, and unqualified people would not be issued clearances out of necessity. Processing time would be reduced. Human judgment, always the weak link, could be applied slower and more deliberately, with more checks and balances involved.

    More monitoring won’t help and will very likely hurt. In a challenge as inherently flawed as the clearance process, the only way forward is less, not more.

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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    America, Who Are We?

    October 6, 2013 // 9 Comments »

    So a person attacks the Capitol building and gets gunned down by the cops, just two weeks after the Navy Yard mass shooting. A man set himself on fire on the National Mall, just outside one of the closed Smithsonian museums. The NSA continues to lie about spying on Americans, get caught lying, then says, OK, we lied about that, but not this next thing. Over 5,000 Iraqis have died in sectarian violence in the past ten months (65 yesterday alone) but despite a recent nine year American invasion, occupation and retreat, that story isn’t really news. Afghanistan devolves daily, with the U.S. bailout there scheduled for next year. Two out of ten American children live below the poverty line. The U.S. government, meanwhile, is… closed.

    Did I miss anything? I haven’t checked the news in the last hour. Some days it feels like I woke up huffing paint.

    As the Vietnam War’s futility became evident, and as most-trusted man-in-America Walter Cronkite came out against it, then-president LBJ said “If I’ve lost Cronkite, I’ve lost middle America.” When was the last time we weren’t cynical about politics and government, when we had hope for change? Yeah, that was that 2008 thing. LECTOR SI MONUMENTUM REQUIRIS CIRCUMSPICE

    Well America, when you’ve lost the young people, you’ve lost the future. We welcome a new friend of the blog today, who sends this message:


    An open letter to the Ladies and Gentlemen of the 113th United States Congress:

    Most kids tend to grow out of the “I want to be President” stage at around age 12, I however did not. That is, until today. Today is October 1, 2013, the day Congress led the federal government to a shutdown, simultaneously leaving thousands of federal employees out of work and crushing the last bits of hope and trust I had for our government and my future (Not to mention cutting off the panda cam at the national zoo. Not OK.)

    I grew up less than 25 minutes from DC my entire life, and spent my childhood wandering around the monuments and the national mall, daydreaming about how one day I would be a part of that elite “inside the beltway” club. I have spent the last decade of my life telling anyone who would listen that one day I would become Speaker of the House, and then eventually, President of the United States, and each time I did, I was met with responses such as “stay away from politics – it is a dirty game” and “wouldn’t you rather have a job that helps people?’. Time and time again, I would look those people straight into their disapproving eyes and tell them that not all politicians were bad and that some truly did care and work to get things done. Usually my responses were met with condescending remarks about how cute I was and how I’d learn when I was older, but I meant every word. I spent four years in college studying Government and Politics, racking up debt that I will likely be re-paying until I am 65, to prove to those people that our government is not all bad and that I could make a difference in the field.

    Little did I know, I was wrong. So wrong.

    Over the past several weeks I have seen just how ridiculous and petty the people who hold some of the highest and most prestigious offices in our nation can be. I have seen my role models let their stubbornness and ignorance shut down an entire nation. Honestly, I have seen better cooperation in a first grade classroom, or better yet in the Great Ape House at the National Zoo (which is now closed). It is hard for me to comprehend how educated adults, who the people have entrusted to run our country, can be so childish as to allow THE ENTIRE FEDERAL GOVERNMENT TO SHUT DOWN. You are literally shutting a nation down because you can not learn to compromise and agree with one another, do you not realize that? These are skills you should have learned in elementary school. Though I guess it isn’t your fault if you didn’t since our educational system isn’t where it should be. Oh wait. That is your fault.

    So basically, I just wanted to thank you for opening my eyes to what Congress and the Federal government are really all about. Thank you for crushing the hopes and dreams I have carried with me since I was twelve years old, and leaving me with a useless degree, and no trust in my government. Oh yeah, and thanks for almost completely shutting down the city I love more than any other place in the world. At least I can take comfort in the fact that you are still receiving your paychecks and that your families won’t go hungry.

    If any of your friends in the private sector are hiring, kindly let me know.




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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

    Executions on our Streets

    October 4, 2013 // 19 Comments »




    Outside America’s non-working Capitol Building yesterday, cops killed an unarmed woman with a baby in her car after the car had crashed and was stationary. When the cops had her stopped the first time, she did not fire any shots or give any indication she had a weapon.

    Not that anyone noticed, but cops in the DC area killed another unarmed citizen on Tuesday. No indications this one was mentally ill, just wouldn’t stop running when told to do so by the cops (Did he hear the order? Was his adrenaline rush too much? Was he scared of being hand cuffed and beaten?)

    Typical rules of engagement for soldiers in Iraq and Afghanistan require someone to brandish a weapon before he can be blasted away. Not always followed, but cops in America do not even have the paper restriction. I’ve written elsewhere about making life-and-death decisions in ambiguous wartime situations.

    We all know that cops have a dangerous job; they know that too. I know they are scared, dealing with unclear, threatening situations. The dead woman at the Capitol was likely mentally ill (Did she have access to psychological care?)

    But none of that grants them the right to conduct executions on our streets.



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    Posted in Democracy, Post-Constitution America

    Obama’s DOJ Seeks Immunity for Bush Iraq War

    October 3, 2013 // 11 Comments »

    Readers may recall D. Inder Comar, a San Francisco lawyer who is seeking to do what the Obama Administration refuses to do, hold the Bush Administration accountable for the unnecessary invasion of Iraq and its ongoing, horrific, aftermath.

    On March 13, 2013, Comar filed two lawsuits in California against George W. Bush, Richard Cheney, Colin Powell, Donald Rumsfeld, Condoleezza Rice and Paul Wolfowitz on behalf of an Iraqi client and himself. He alleges the defendants planned and waged a “war of aggression” in violation of laws set down at the Nuremberg Trials in 1946 and seeks to hold the defendants personally liable for their actions.

    Well, we can’t have that.

    So, because every other problem in America has been resolved, Obama’s Department of Justice requested that the Bush Gang be granted procedural immunity. DOJ claims that in planning and waging the Iraq War, the Bushies acted within the legitimate scope of their employment and are thus immune from suit. This is the “Westfall Act Certification,” defense, submitted pursuant to the Westfall Act of 1988. The Act permits the Attorney General, at his or her discretion, to substitute the United States as the defendant and essentially grant absolute immunity to individual government employees for actions taken within the scope of their employment.

    To save you non-lawyers the expense of a Google: In 1988, Congress amended the Federal Tort Claims Act (“FTCA”) to reinforce federal employees’ immunity from tort actions. These amendments — commonly known as the Westfall Act because they were a response to Westfall v. Erwin, 484 U.S. 292, 300 (1988) — provide that an action against the United States is the only remedy for injuries caused by federal employees acting within the scope of their employment. 28 U.S.C. SS 2679(d)(1). There some limited exceptions to when Westfall can be used, such as an action “which is brought for a violation of the Constitution of the United States.” Hmm.

    Now to be fair, this is actually a fairly standard defense by the government. The idea in theory is that if a government official follows the rules and say, denies you a passport lawfully because you did not present the required documentation, you can’t sue the guy. I can say in my own State Department career assisting American Citizens abroad, most of whom had been arrested for something (top three reasons for arrest: drugs, drugs and drugs), more than one wanted to sue me personally because of something well out of my control, such as a foreign judge thought they were scum sucking freaks. I was just doing my job, and followed the rules, and thus the government protected my actions.

    Still, while understanding the Department of Justice wants to just dismiss cases like Comar’s as routinely as possible, it leaves a sour taste to learn that the current administration wants to immunize the Bushies over a terrible war that nearly bankrupted America and resulted in so many needless deaths.

    Comar does raise a good point: since much of the planning for the Iraq War was done long before guys like Rumsfeld, Rice and Wolfowitz actually took office, they should not be protected by Westfall. In addition, there is that “violation of the Constitution of the United States” clause that must figure into this all somehow.

    The ongoing case against Bush is Saleh v. Bush (N.D. Cal. Mar. 13, 2013, No. C 13 1124 JST).



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    Posted in Democracy, Post-Constitution America

    An Apartheid of Dollars: R.I.P Our Government

    October 1, 2013 // 21 Comments »

    If you’re reading this, you’re probably a Federal worker sent home because your employer, our government, ran out of money to pay you.

    Welcome to our world.

    The scene in Congress is as ugly as it has been in some time, perhaps resembling the ultimate breakdown of our system of government last seen in the days before the Civil War. At that point the lines had been drawn and were no longer negotiable, literally black and white. There were no compromises left to explore as Congressmen acted simply out of self-interest (“I wish to support using human beings as livestock”) with no regard for the nation as a whole.

    The issue today is selfishly drawn– Congress acts simply based on a cold calculus of what it thinks will increase chances for reelection. No one seems to care a touch for the nation. This demonstrates the extent of our failure. Even as the U.S. is trending toward our own form of fascist exceptionalism, where real power is controlled by industry with the complacence of government, backed up by a surveillance state that views citizens as the enemy, we can’t even get the damn trains to run on time.

    Meanwhile, some 16 million of our children, 22 percent, live below the federal poverty level. That line is set at $23,550 a year for a family of four. Anybody out there with enough scratch for a computer and an internet connection want to try that on? In fact, on average, a family of four needs at least double the money just to cover basic expenses. Using that standard, actually 45 percent of our children live in low-income families. Meanwhile, our Secretary of Labor spends his time concerned about kids in other countries being forced to work to survive.

    While we spend lavishly on schools, bridges, roads and utilities in Afghanistan (the latest is over $100 million so a few kids can go to college in Kabul for free) and previously in Iraq, our own infrastructure is crumbling.

    I could easily cite similar facts on education, crime, incarceration rates, employment and the like showing the growing disparity not just of income, but of life, between our tiny rich and our growing poor. It is almost as if our government is actively seeking to create a permanent underclass to drive down wages. We are witnessing an apartheid of dollars.

    I will admit to not yet knowing enough about Obamacare to offer an intelligent opinion on its likely effectiveness. But I know this: My family lived in the UK for a few years, where free healthcare was available to every person. While there are criticisms about that system, I can only say the care we received was extraordinary. We lived also in Japan, where healthcare is available to all at very low cost. While there are criticisms about that system, I can only say the care we received was extraordinary. A comprehensive health care system can indeed work. In fact, in the dozens of countries where we lived or traveled, healthcare was available at costs far below the U.S. In any of the first-world places, no child was left to suffer for lack of money. In the third world, that was not the case. It is obvious which pole the U.S. is tumbling toward.

    Federal workers, welcome to a taste of our world, where everything is uncertain and your life is on the line if you lose your job. Now, I understand that whenever Congress eventually gets around to re-funding the government you’ll be back at your jobs-for-life, with nice benefits. More power to you. But, if you can, take these days of pseudo-unemployment to spare a thought for what is going on in our country outside the Beltway.

    I enjoyed all that job security and good benefits too, in my more than twenty years working at the State Department. I live now on a retiree’s Federal pension. But none of that precludes me from thinking about others. In fact, I feel it requires me to do so.

    What I’d like to end with is to say that as long as we don’t have a working government, providing us the services we paid for via our taxes, we should not have to pay those taxes. Unfortunately, that would result in me going to prison, a service that is still quite robust. Instead, for us the living, the immediate task is simple. Congresspersons are acting in their own self-interest, hoping to get reelected, and our own lives be damned. Do this: vote for anyone except an incumbent. If a noticeably large number of incumbents never see office again, perhaps– perhaps– someone in our own government will remember us out here.

    Alone.



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    Posted in Democracy, Post-Constitution America

    NSA Cites 1959 Law, Claims Use of Their Seal and Name is Illegal

    September 21, 2013 // 25 Comments »

    The path downwards in our post-Constitutional America starts with the large failures, and will end in petty indignities. Such is the nature of a fascist state. It must crush any dissent, however pointless, and it must control everything.


    Having swept aside the Bill of Rights with ease, the NSA under the control of the White House, now descends to pettiness.


    Two days after the first revelations of NSA mendacity, an entrepreneur named Dan McCall put up a handful of T-shirts and bumper stickers for sale on the custom goods marketplace Zazzle. Each of those items had a faux NSA logo, emblazoned with the slogan “Peeping While You’re Sleeping,” plus the joke line “The only part of the government that actually listens.”

    Within an hour or two Dan received an email from Zazzle stating:

    Design contains an image or text that may infringe on intellectual property rights. We have been contacted by the intellectual property right holder and we will be removing your product from Zazzle’s Marketplace due to infringement claims. Specifically, your product contained content which infringes upon the intellectual property rights of National Security Agency. We have been contacted by legal representatives from the National Security Agency, and at their request, have removed the product from the Zazzle Marketplace.

    The NSA had stepped in, quickly enough to surmise they had been monitoring the transaction, citing Public Law 86-36, from 1959. Specifically, the NSA referenced Section 15 (a) which states in its entirety (emphasis added):

    No person may, except with the written permission of the Director of the National Security Agency, knowingly use the words ‘National Security Agency’, the initials ‘NSA’, the seal of the National Security Agency, or any colorable imitation of such words, initials, or seal in connection with any merchandise, impersonation, solicitation, or commercial activity in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency.

    Leaving aside the reality that many others online (as well as every street vendor in Washington, DC) sells NSA gear, including Zazzle competitor Cafe Press, there is no evidence that Dan’s use of the NSA logo in any way conveys the impression that the use is approved or authorized by the NSA. Quite the opposite; his open mocking of the NSA and amended seal convey that he thinks the NSA is a bunch of bullying wankers.

    Not that any of this is new; my own former employer, the Department of State, went after me for using its seal in a piece of journalism protected by the First Amendment. In 2005 the George W. Bush White House demanded that The Onion stop using George’s seal.

    The NSA stated that “At any time that NSA is made aware that the NSA Seal is being used without our permission, we will take appropriate actions.” Well, NSA, better turn those satellite dishes and unleash the lawyers against this site, where Dan McCall is now selling his NSA faux logo gear.

    And, in fact, you better go after this blog, as well as the New York Times, Buzzfeed and a zillion other places, because we all have and continue to violate Public Law 86-36 by “knowingly us(ing) the words ‘National Security Agency’, the initials ‘NSA’, the seal of the National Security Agency.”

    So here is what in our present State passes for an act of civil disobedience:




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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

    Posted in Democracy, Post-Constitution America

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