Fear is good for our current way of life, allowing your opinion and votes to be manipulated, and to make sure you’ll go along with any terrible things the government wishes to do to you (surveillance, wars, detentions, quarantines, shredding of the bill of rights…)
So, in honor of Halloween, our scariest holiday other than election day, here is the Official Government-Approved List of Fears:
1) ISIS (they’re everywhere!)
2) Ebola (it’s everywhere!)
3) Al Qaeda (still around)
4) People who tell you not to be afraid (they’re working for the terrorists)
5) Something (as in “If you see SOMETHING, say something…”)
6) For Kids: Your hippie parents and Occupy-creepy older siblings (be sure and report them to the nearest friendly Homeland Security personnel, they’ll give you tasty candies!)
7) That Leatherface guy with the chainsaw and Twisty clown from the TV (they may be ISIS)
8) The thing under your bed (could be an ISIS thing, and you’re not imagining it, we believe you)
9) The Boogie-man as you choose to believe in him/her as a higher power (he has ebola and is a Muslim)
10) People who are not like you based on skin color, preferences, religion, politics and everything else all the time everywhere forever, just to be on the safe side!
Citizens remember, fear is your only protection against the forces of whatever, evil, so just stay afraid and you’ll be safe!
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
An audit shows the surveillance program is more extensive than widely known and that oversight protecting Americans is lax: 21 percent of the covers examined were approved without even the minimal required written authorization and 13 percent that did have authorization “were not adequately justified.” The Post Office has no standing review procedures.
Mail Cover is Nothing New, But…
The Post Office helping spy on Americans per se is nothing new; its program to record your mail’s “metadata,” who sent what to whom, complete with addresses and date/time stamps, has existed in the form of an overt program detailed in federal law called “mail cover” since well before the term metadata was even invented. As mail cover does not involve reading the mail’s contents, only information on the outside of the envelope or package that could be read by anyone seeing the item, it is not considered by precedent a violation of the Fourth Amendment’s protections against unwarranted searches.
Official versions of mail cover are acknowledged as far back as World War I. But like many such things– wiretapping, border detentions, searches and seizures, old Executive Orders, signing statements– its former existence, restrained in theory and often in practice in Constitutional America, is largely irrelevant now to all but historians. What has happened post-9/11 to mail covers is what has happened to America.
How Did Mail Cover Use to Work?
A mail cover has to be requested by a state or federal law enforcement agency. Following internal approval, postal workers intercept the target’s mail before delivery, and record the names, return addresses and any other information from the outside of letters and packages before they are delivered to a person’s home. The Post Office does not notify the recipient or the sender that the cover is in place.
Prior to 9/11, the process had an old-timey feel to it, almost quaint. In a 2006 leaked instruction manual, agencies seeking a mail cover were told to first fill out a paper form, the External Law Enforcement Request for Mail Cover Template. Law enforcement was reminded to include the Zip +4 for all subjects. An electronic version of the form was supposedly available, but you had to telephone the Post Office personally to get one.
The template required a paper cover letter requesting the action on agency letterhead, signed by the requesting agent’s supervisor. The form would then need to be put into an envelope marked Restricted Information, with that sealed inside a second envelope, and then snail-mailed via the regular first class, unclassified, mail system, to the appropriate section of the Post Office. Information obtained by the Post Office would be sent back on a Form 2009.
Implementation was largely also a paper process. One subject learned his mail was being covered after he received a handwritten card, apparently delivered by mistake, with instructions for postal workers to pay special attention to the letters and packages sent to his home. “Show all mail to supv for copying prior to going out on the street,” read the card. The word “confidential” was highlighted in green. Another subject was told he was being covered by his regular mail delivery person.
The standards for law enforcement to request a mail cover were low; “reasonable grounds that demonstrate the information from the mail cover is necessary to develop evidence in a criminal investigation.” Covers were not to be used as the first step in an investigation (on an honor system) and could not include attorney-client mail if the attorney of record is known (on an honor system.)
The key point is that absent a specific request to monitor a specific person, the mail was simply delivered as it had been since the time of the pony express.
Mail Isolation Control and Tracking (MICT)
Sometime after the anthrax attacks of 2001, when the mail was used to send the poison letters, and its public acknowledgement is 2013, the Post Office created the Mail Isolation Control and Tracking (MICT) system.
Under the new MICT system, an imaging tool is used to photograph of the exterior of every piece of paper mail processed in the United States. The images are kept, the Post Office says, for 30 days, allowing them to retroactively track mail at the request of law enforcement. There are no stated limits on how long law enforcement may store any information they receive from the Post Office. In addition, mail covers can be extended indefinitely, meaning a flow of data-in for years can be done if desired. MICT is the companion program to the NSA’s efforts: collect everything, store it, and then dig in retroactively. As has been said of the NSA , why look for the needle now, when you can collect the whole haystack? Collect it all, tag it, store it and later, whatever it is you want, search for it.
Like the metadata obtained from cell phone records, mail covers are “a treasure trove of information,” James Wedick, a former FBI agent, told the New York Times. “Looking at just the outside of letters and other mail, I can see who you bank with, who you communicate with, all kinds of useful information that gives investigators leads that they can then follow up on with a subpoena.”
As for those subpoenas, and any warrants thought to be needed to actually open and read mail of interest, George W. Bush asserted in a 2007 signing statement that the federal government had the authority to open mail without warrants in emergencies or in foreign intelligence cases. Others have argued such authority has existed since 1978 as part of the original FISA legislation.
It should be blindingly obvious how the mail cover system, particularly with the broad, digital sweep of MICT available, stands ready to be abused (examples of past abuses are the alternate, secret, mail cover program [HTLINGUAL] run for twenty some years by the CIA, and the FBI’s COUNTERINTELPRO work against Vietnam War opponents.) The current mail cover system operates under no judicial or outside oversight. It relies on numerous assertions, an honor system if you will, by law enforcement that the Post Office cannot verify. The system touches the mail of every American.
How many Americans have their mail subjected to this scrutiny? In 2013 alone, the Postal Office processed about 50,000 mail covers.
Abuse? A sample examined by the Postal Service Office of Inspector General (OIG) “found some controls lacking.” For example, 21 percent of the covers examined were approved without even the minimal required written authorization and 13 percent that did have paper requests “were not adequately justified.” The audit also found hundreds of mail covers in active status even though their cover periods had ended. Part of the problem is that the Post Office has no standing review procedures for its own program.
Other than the referenced OIG report, the Post Office refuses to disclose how many requests for mail covers it has received, nor will it break down the requests by local law enforcement versus federal law enforcement, nor will it specify how many requests are related to criminal investigations and how many deal with national security investigations. In fact, the Post Office has provided false information to some of those questions to the media.
On a oddly positive note, the Postal Service Office of Inspector General’s report did find handling of mail cover requests tended to be sloppy and slow, and the case management software ineffective. Such are the things that stand now between Americans and the Post-Constitutional Dark State.
While small in size compared to the global operations of the NSA, the Post Office mail cover program shares many of the same hallmarks. It grew in size, complexity and technology post-9/11 without adequate safeguards built in, and has operated without those safeguards ever since. It is a secret program affecting all Americans, only disclosed by accident, Freedom of Information Act requests and a few journalists willing to look into the government’s actions. The program moved very quickly from targeting a select few Americans to covering every one of us. Like the actions of the NSA against Americans, the mail cover program at the very least rubs rough against the edges of the Fourth Amendment’s guarantees against unlawful searches, relying on legal precedents created in another era while using secrecy to thwart new legal challenges.
There are the “it’s just metadata” faux arguments. Can’t someone look over my shoulder at the Post Office anyway? Big deal. Actually, it is a big deal. What is significant about the many disparate elements of a global surveillance system is not pieces of data in isolation (I got a letter today) but how those small elements can be combined to create a comprehensive picture of someone. Location data from phones + credit card transactions + license plate trackers + text messages sent and received + pharmacy purchases + Facebook posts + mail sent and delivered… well, you get it.
And on perhaps a more personal note, one is left thinking, aw c’mon, now the Post Office too? The Post Office used to be one of the good guys, bringing packages and Christmas cards, creating a kind of a miracle that for about half a buck, a letter with details of Aunt Tillie’s surgery could journey from Ohio to Montana in just a few days. At some level, a lot of Americans were long-suspicious of the NSA, CIA. Sadly, post-9/11, the Post Office now too is just another tool of the surveillance state.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Two kinds of people are interested in Laura Pointras’ new documentary, CitizenFour, about Edward Snowden’s early contacts with journalists Glenn Greenwald, Ewen MacAskill and herself. Let’s have a review of the film for each group, the Haters and the Everyone Else.
But First, a Quick Recap
Snowden worked deep inside America’s national security state. His last job was as a contract systems administrator for the NSA. Through this job he obtained a massive trove of documents which, when made public, demonstrated to the world U.S. government electronic surveillance and espionage on a scale even its worst critics had not fully described. The documents also validated the information provided by earlier NSA whistleblowers. Snowden left the U.S. for Hong Kong, where he met the journalists above, and where most of CitizenFour was filmed. Following U.S. government efforts to bring Snowden back to the U.S., he left for Moscow, likely enroute to some other place, possibly Ecuador. He instead spent weeks in suspended status at the Moscow Airport before being granted long-term residency.
With few exceptions, pretty much everyone can agree with that basic outline of the Snowden story to date, and CitizenFour does a very good job recounting most of it. It is there, however, where agreement ends. CitizenFour (the title comes from the codename Snowden choose for himself when first contacting filmmaker Pointras) cannot be understood independently from the greater Snowden story, and separate from the strong opinions of Snowden’s decisions.
Review for Real Haters
If you thought traitors like Chelsea Manning have their hate groups, they aren’t jack compared to what those on the right side (oh yes, pun intended) of the house will think of this film. To them, Pointras has created an evil-genius piece of propaganda, with the give-away starting point that she was a huge part of the Snowden story herself, throwing out any hint of objectivity. Her success at humanizing Snowden, portraying him as the amiable geek-nerd-manchild you could have a Lite beer with, is Riefenstahl-level work.
This is a celebrity “authorized biography” with all the integrity those have. Apart from making a traitor look good, they’ll say, Pointras also crudely tells only the tidy parts of the story. Snowden’s believed-espionage relationships with Russia and China are glossed over. Many details of his time in Hong Kong and sneaky flights in and out are absent. Nothing is said about why Snowden won’t return to the U.S. to defend his so-called honorable acts in court like a real man would do. Nothing is said about how the NSA keeps America safe from Americans. Snowden is a starry-eyed savior of the left who’d likely smirk from his cozy Russian lair as America is attacked again.
Review for Everyone Else
CitizenFour is impressive filmmaking. Pointras starts with the problem of telling a story most people already know, in an engaging way, trying to reach a broad audience in many cases polarized as to her subject, and her Subject. She succeeds brilliantly, and if CitizenFour is not awarded the Academy Award for Best Documentary then that award no longer is relevant.
To be fair to other films in award contention, Pointras starts from, and makes the most of, some very significant advantages. She is indeed part of the story (a fact she never hides nor diminishes) and thus enjoys a level of trust and access with her subjects almost unavailable to other documentarians. The viewer is in the room as the journalists with Snowden struggle to understand the story he is trying to tell them, working to interpret the documents he shows them and creating on the fly the most effective way to bring this information to the public. It is heady stuff.
The interplay between Snowden and the journalists is dramatic, but in the sense that it is real human stuff. When Snowden claims he does not care if he is exposed as the whistleblower– he encourages the journalists to name him– they back him off a step, and try to make sure Snowden truly knows the impact such a decision will have on him and people he cares about. Funny things happen, particularly when Snowden realizes he is explaining some technical point to people who are nowhere near his level of expertise (an exchange about password security between Snowden and Greenwald is laugh-out-loud funny.)
Pointras skillfully weaves her story, presenting it sometimes as if it was a thriller (it is), other times as a classic movie brave journalist saga (it is) and often times as a profile of a man everyone thinks they know but does not (it is that too.)
Parts of Snowden’s journey from Hawaii to Moscow are omitted. Most sentient members of the audience will understand they have to be, given the global efforts underway to nab Snowden, and the need to protect the many people who played a role who choose to or need to remain anonymous. None of that is new in a documentary– turn on the evening news and witnesses speak in shadowy profile, while most docs about the CIA or the NSA alter voices and employ false names for the same reasons. Anyone expecting Pointras’ film to be a How to Catch Edward Snowden for Dummies will indeed be disappointed.
Perhaps most powerfully, Pointras’ portrait of Snowden is of a whistleblower for a new generation. He is passionate, but in a laid-back way, confident in his actions such that his passion comes from within, maybe call it a kind of intellectual hipster patriotism. He is political, but in a small “p” way, moving through classic Left and Right into a place where many people feel more comfortable today, with a focus on issues such as privacy and authoritarianism above two sides shouting “Facist!” and “Hippie!” at each other in some news show’s clumsy attempt at their parents’ version of balance. When dealing with the older journalists in that hotel room, Snowden at times sounds like many young people do explaining how the DVR works to moms and dads dully mystified by but stuck being dependent on new technologies.
And there (partisan now, no shame) lies CitizenFour’s most long-lasting contribution. There are millions of young men and women working inside the Dark State, often times with impressive levels of access to information. Like Snowden, they have seen evidence of government wrongdoing, obscenities directed at the Constitution, harm done to ordinary citizens. Almost every one of those people will remain silent, partners to the crimes. But maybe– just maybe– one out of a million will see a role model, an example, that rings true in CitizenFour, and stand to speak.
If it was up to me, I’d have this movie play in every theatre in the Washington DC area 24/7, because s/he is out there.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
New York and New Jersey this week instituted mandatory confinement for certain people exposed to ebola. Illinois announced its own mandatory quarantine, and Florida has instituted a home-quarantine version.
Is it legal for a state (or the federal) government to detain and quarantine you against your will for health reasons? Yes. Has this sort of thing been done before? Yes. Will it be effective? No. Is it just a political ploy to garner votes from a panicked public? Oh my yes.
Is it legal for a state (or the federal) government to detain and quarantine you against your will for health reasons?
Yes. The federal government derives its authority for isolation and quarantine from the Commerce Clause of the Constitution. Under the Public Health Service Act, the Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases.
The authority for carrying out these measures is been delegated to the Centers for Disease Control and Prevention (CDC). Under 42 Code of Federal Regulations parts 70 and 71, CDC is authorized to apprehend, detain, and examine people arriving to the United States and traveling between states who are suspected of carrying communicable diseases.
Though the paranoid-a-sphere rediscovers these provisions on a regular basis and makes much of them, the basic idea of the government forcibly quarantining people for the sake of public health goes back into the 19th century.
That said, the power to detain and quarantine often is left to the states, and both New York and New Jersey law provide for it. New York allows the decision to be challenged in a magistrate court; New Jersey does not have a similar law, though technically any form of detention can be broadly challenged under habeas corpus. But good luck with that– the Florida Supreme Court laid down the precedent in saying “The constitutional guarantees of life, liberty and property, of which a person cannot be deprived without due process of law, do not limit the exercise of the police power of the State to preserve the public health so long as that power is reasonably and fairly exercised and not abused.”
Has this sort of thing been done before?
Yes. The Florida precedent case cited above dealt with forced quarantine of a tuberculous patient in 1952.
Just recently in Dallas, Texas, after her boyfriend was diagnosed as the first ebola case in the United States, Louise Troh and her family were asked not to leave their home. When Troh tried to leave anyway, a Dallas judge issued a confinement order, forcing a quarantine on Troh and her family. Police stationed outside of the family’s home enforced the order.
In 2007, a 27-year-old man was forcibly placed in a Phoenix hospital ward reserved for sick prisoners. The man suffered from a deadly strain of tuberculosis known as XDR-TB. Doctors say he is virtually untreatable. He has been forced to live in a hospital cell in complete isolation.
Though never implemented, in 1985 at the height of the HIV/AIDS epidemic, a majority of Americans favored quarantine of patients, with 48 percent approving of identity cards for those who tested HIV-positive, and 15 percent of Americans even supporting tattooing those with AIDS to mark them as “dangerous.”
Further back in America’s history are multiple examples of forced quarantine, including Hawaiian leper colonies, and the isolated TB wards and Ellis Island medical isolations of the 19th century.
The record is not pretty, but the record exists.
Will it be effective for ebola?
No. The New York and New Jersey quarantine laws at present only apply to a) health care workers b) returning from African “hot zone” countries through c) only two airports, JFK and Newark who d) had contact with ebola. That’s a very select group, chosen largely because New York’s sole ebola patient fit that exact profile. Persons such as regular travelers who fit the same profile,or persons who just flew internationally with the profiled individuals, are not included.
In addition, the New York and New Jersey plans seem to rely 100 percent on individuals who fit the profile self-identifying themselves for the mandatory quarantine. Anyone who wished to avoid it, especially a health professional who knew s/he was not an active carrier based on clearly identifiable and well-known symptoms such as a high fever, could just dummy up at the airport. Alternately, s/he could route flights to land somewhere else and take the bus home to Manhattan.
What does happen when a healthcare worker enters this quarantine system? There is only one example in New Jersey so far, and it is not a pretty one. Kaci Hickox, returning from volunteer work in Sierra Leone, was detained against her will for seven hours at Newark Liberty International Airport on Friday before being forcibly transferred to a local hospital, escorted by eight police cars, where she will be held for an unspecified period of time. Hickox did not have a fever when brought to the hospital and has tested negative for ebola, yet is inside the system now and those things do not appear to matter.
Quarantining actually infectious people, who may indeed be a danger to public health is one thing. But like taking off our shoes and other security theatre that followed 9/11, the quarantine plan seems designed more for show than any hint of practicality.
Is it just a political ploy to garner votes from a panicked public?
Oh my yes. All of the state governors who pushed the plan through without the endorsement of the CDC or New York’s mayor are in election battles. The governors of New York, Illinois and Florida are up for reelection in about a week, and New Jersey governor Chris Christie is famously testing the waters for a possible 2016 presidential run. New York’s mayor is not up for reelection for years.
Fear-mongering works; ask any politician who has beaten the drum of “9/11, 9/11, 9/11″ since, well, 9/11. People are scared, mostly based on ignorance fanned by media who themselves seek to profit from fear.
That sort of disease seems more dangerous in the long run than a handful of ebola patients.
Giggling, the Chairperson of the Republican Party could barely contain himself when he learned a major hurricane was headed for the east coast of the United States. “Can anyone tell me if it’ll hit any blue states hard? We can always use some extra help I guess, but with ISIS and ebola, maybe that would be piling on. We live in great times.”
Documents show that the entire Republican midterm strategy is based on creating a perfect storm of fear in the U.S., combining over-reaction and panic over ISIS with growing fears of an apocalyptic ebola epidemic sweeping through the nation’s gun shows. “Friends,” the chair continued, “This could be like the election after Watergate, when the Dems could have run nearly anyone, even a nut job like Jimmy ‘James’ Carter, and won. We just need to tie Obama a little bit more directly to the ebola thing and we are in, control of the Senate.” The chair actually lit a comically large Cuban cigar at that point.
According to leaked documents left at a Chili’s by Edward Snowden while changing planes in Atlanta enroute from Moscow to a vacation villa outside Vladivostok, the initial Republican plan was to convince its base that ISIS operatives were everywhere. “The party must let every voter know that ISIS is dressed as terrifying clowns out there and plans to eat their dogs and behead their fat kids. That will be a money shot for November.”
But as confident as the Republicans were after encouraging Fox, then CNN and then Cartoon Network to run ISIS beheading videos 24/7 as part of the plan, even their senior leaders admit ebola was a surprise gift. “Think about it. Unlike terrorism, which has basically killed no one in the U.S. since 9/11 but still controls our daily lives, ebola is an actual thing. We don’t even have to make this one up. And, and this is the best part of all, it comes from Africa, er, you know, um, from “not white people” which speaks to our Red State voters’ most cherished beliefs. And two boneheaded nurses in Dallas can’t remember enough high school biology to even wash their hands, followed by the CDC– Obama’s CDC– telling one of them it was OK to fly. And then– praise Saint Reagan in heaven– she flew to Cleveland, in Ohio, a major contested state. It writes itself: Obama is trying to kill Ohio. Our guys are already ordering furniture for their new Senate office spaces.”
“More? Obama appoints some guy as ‘Ebola Czar” who has no medical experience. What, was Dr. Oz not taking calls? Yeppers, nothing inspires people to have faith in their leaders like choosing a bureaucrat they never heard of to save their very lives. And that bit about Secretary of State Kerry having to get involved in trying to get Belize to allow our ‘Ebola Cruise Ship’ permission to dock, and then failing? Right again, seeing old Mr. Muppet stumble makes our lives here in the Republican party easier and easier. That stuff screams incompetence. Heck, we should have carpet bombed Belize in retaliation.”
“Travel ban from Africa?” said the chairman. “Yeah, we talk a tough game but we’d be opposed to marshmallows and hot chocolate if the Democrats came out in favor. No, no, no, we don’t want a travel plan. Bring us a bunch of infected Liberians. If say a couple of thousand American get sick with the ebola, 99 percent of healthy America votes for us, fish in a barrel. Maybe we’ll get some redneck to hold a benefit concert or whatever.”
“Am I cynical? I don’t even know the meaning of that word. Fear is our best business tool, and friends, business is good. I’m seeing us ride this wave of paranoia and hysteria all the way!”
The person who shot up the Canadian Parliament had had his passport taken away by the Canadian government, ostensibly to prevent him from traveling to Syria to join ISIS
Can the U.S. government seize the passports of American citizens who it believes may travel abroad to join ISIS or other terror groups? Yep. The process is almost no-cost to the government, extra-judicial, can be made secret and requires a lengthy court process to even try to contest. No passport, no international travel, the ultimate no-fly tool against would-be jihadis. So why hasn’t this process been used more often?
Leaving aside the not-insubstantial questions about their validity, the warnings are ominous.
With some Americans seeking to join ISIS, there are fears that on their return they may commit terror in the U.S. Unlike foreign citizens, these radicalized Americans would sail through immigration checks and be able to easily disappear into a familiar society. The U.S. is seeking to tackle the problem at the supply end, preventing Americans from departing to join ISIS in the first place, as well as from the other side, blocking citizens from returning freely to the United States.
The arrest at O’Hare airport of Mohamed Khan, a 19-year-old U.S. citizen, is one example. Authorities claim the young man headed to the Middle East to join ISIS, and, citing a left-behind note explaining his choice, waited at the airport to arrest Khan on charges of attempting to provide material support for a terrorist organization. The operation involved significant law enforcement resources to stop one teenager based largely on suspicion.
Another Tool in the Box
The United States can simply seize passports from American citizens if “The Secretary of State determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.”
The law allows this prospectively, the “or are likely to cause” part of the law, meaning the person needn’t have done anything. The government just needs to think they might.
A Judicial Watch Freedom of Information Act request revealed that prior to Obama ordering him and his 16-year-old son to be killed by a drone in 2011, then-Secretary of State Hillary Clinton secretly revoked the passport of Anwar al-Awlaki, alleged al Qaeda propagandist and U.S. citizen. The two would not have been able to travel to the United States without handing themselves over to law enforcement. Indeed, a letter to that effect was allegedly sent to some address in Yemen inviting al-Awlaki to visit the American Embassy to discuss the details.
Al-Awlaki isn’t the only person in Yemen to have his U.S. passport seized.
According to information obtained through a U.S. government whistleblower involved directly with U.S.-Yemeni affairs, the American embassy in Sanaa, Yemen seized over one hundred U.S. passports from Yemeni-Americans (some place the number at 500 passports) between 2011 and 2013. Only after several legal battles did the State Department curtail its actions. Though State publicly claims the seizures were an anti-fraud measure, many in the Yemeni community saw them as a pilot program.
A similar case involved the seizure of a Moroccan-American’s passport in Kuwait.
The actions at the American embassy in Yemen may fit into a larger pattern. For example, at the same time in 2011 the U.S. was ramping up its actions against Yemeni-Americans, Australia appeared to be doing much the same thing. “Withholding passports is an important means of preventing Australians from traveling overseas to train, support or participate in terrorism,” an Australian government spokesperson said. “It may also be used to help prevent an Australian already overseas from participating in activities that are prejudicial to the security of Australia or another country.”
How are Passport Seizures Legal?
Restrictions on travel suffered under the British were part of the list of “injuries and usurpations” in the Declaration of Independence. So don’t Americans have a right to travel?
Nope. The precedent was set by infamous ex-CIA officer Philip Agee, who in the 1970′s exposed CIA officers identities. It was in Agee’s case that the Supreme Court coldly affirmed that “The right to hold a passport is subordinate to national security and foreign policy considerations.” A lower court put it even more bluntly: “The Secretary [of State] may preclude potential matches from the international tinderbox.”
The basic premise is that travel abroad (travel within the U.S. is specifically provided for in the Constitution, though the No-Fly list certainly can limit one’s options) is that it is an “aspect” of liberty subject to restraint under due process. In the 1950’s, American Communists were often denied passports if their travel abroad was believed to be in support of their political beliefs, a policy later overturned by the Supreme Court. The Court struggled to balance national security and personal liberty regarding travel through multiple cases, but has never concluded that travel– or having a passport– is a fundamental right.
The whole concept of Americans requiring passports to travel has its roots in national security restrictions. With the exception of roughly the years of the Civil War and World War I, Americans did not need a passport to enter the United States. Americans were first required as a group to hold passports at the start of the Second World War. The travel requirements instituted in the past only during times of national crisis stuck around after WWII through the present day, formalized in the Immigration and Nationality Act of 1952. With echoes of current government actions, what was created as a wartime contingency morphed into a permanent peacetime restriction. The history of passport restrictions is not long, but does resonate into the post-9/11, Post-Constitutional era.
While no right to travel per se exists for Americans, there is a basic assumption, rooted in the Citizenship Clause of the Fourteenth Amendment and the due process clause of the Fifth Amendment to the Constitution that Americans have something between an expectation, an entitlement and an implied right to return to the United States from abroad, rooted in the concept of citizenship. The ease with which passports can be seized (or boarding an aircraft denied via the No-Fly list) is not seen in conflict; in al-Awlaki’s case, he would have been welcome to come home, albeit in leg irons en route to federal SuperMax. Time is also an issue. How long the government may make a citizen wait before allowing a return to the U.S. under some specific circumstances is not codified and thus can be used as a de facto seizure or punishment without raising a case publicly.
Why Doesn’t the Government Seize More Passports?
In short, for an American citizen to travel abroad, whether for vacation or jihad, the government’s permission, in the form of a passport, is required. So why then does the government not use such a long-tested authority to deny or seize the passports of those suspected for traveling to join terror groups?
While the real answer is obviously unknowable, several ideas may help explain this. First is that in fact such measures might be taking place. Persons who have not yet applied for a passport may find themselves denied issuance, and applications may have been denied or “in processing” without the applicant knowing the reason. The government is under no obligation to tell the person involved nor the media that national security has been invoked.
More likely however, it is a matter of legal timidity and public relations. Arresting and trying someone for material support for terrorism is something of a set-piece case for post-9/11 law enforcement. There is little legal controversy generated, and almost no danger under present circumstances of any nasty precedent being set. Wide-spread passport seizures could easily create a new chance to bring the issue before the Supreme Court, risky business for a government that much prefers to act as it wishes vis-vis American’s rights.
The other reason for restraint may simply be public relations. The public is familiar and appears supportive of arrests. Law enforcement in these circumstances are the good guys. Passport seizures sound a bit harsh, totalitarian-like, and are technically done under the authority of the Department of State, who does not enjoy the good guy reputation many attribute to the law enforcement people who “keep us safe.” It could be as simple as law enforcement not being willing to work with the State Department for bureaucratic reasons.
Regardless, these are dark seas. In a democracy, the right of citizens to depart and return should not on its face be restricted in the interest of the government. The idea of limiting an American citizen’s travel proactively, on the assumption that she or he will end up fighting with ISIS based on documents or web postings, scrapes at liberty, even if the tools are there and it is legal to use them.
The Bill of Rights was designed to protect the People from their government. That’s quite literally becoming history today as new challenges, now from local law enforcement, chip away at the Fourth Amendment’s protections of privacy. New laws and devices spread spying on Americans to the local level.
A Brief Explanation of Post-Constitutional America
The cornerstone of the Bill of Rights was that the People grant exceptions to those rights to the Government. Absent those specific exceptions, the rest of the stuff was inalienable, not up for grabs, not dependent in any way on Government’s decision to grant or withhold them. Constitutional America was clearly imperfect, but the underlying premise spoke of a striving toward an ideal.
The cornerstone of Post-Constitutional America is just the opposite. The People have what rights the Government chooses to allow them to have, such that privacy is the exception, free speech a variable, torture a tool to be used or withheld as the Government finds appropriate. It is a turning on its head of Constitutional America, back to a time when a tyrant and king (may we call old King George an “evil dictator” to use the preferred language of today?) controlled Americans’ daily lives by decree.
It should be unnecessary to have to argue the critical importance of the Fourth Amendment, but these days it seems necessary. If the First Amendment’s right to speak out publicly was the People’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. Privacy is the right to think without the Government intruding. It is part of being American. If you want to personally give it away for yourself, feel free, but you are required to allow others to exercise it.
9/11 Changed Everything
Under the umbrella of post-9/11 fear, the relationship between the Government and the People of the United States changed. As early NSA whistleblowers Thomas Drake, Bill Binney, Kirk Wiebe and others made clear, within days after the attacks, the vast capability of the NSA was turned 180 degrees away from sites abroad toward a new definition of the People: we were now targets.
Such acts, along with flimsy pieces of faux-legislation such as the Patriot Act, were not only harmful to our privacy by themselves, they also sent clear signals to law enforcement at all levels that new rules applied; after all, if the federal government was spying on Americans in clear contrivance of the Fourth Amendment, then why couldn’t local law enforcement do the same? With such tacit approval, and the redefining of every person in America as a potential terrorist, it all fell into place.
So while the Snowden NSA revelations expose violations of the Fourth Amendment on the largest scale, let’s examine some examples of how those big-scale acts filter down to local levels.
In 2008 the city of Los Angeles passed municipal ordinance 41.49 requiring hotels to gather, hold for at least 90 days and make available upon request a large amount of information on their guests. The information included guests’ credit card number, home address, driver’s license information and vehicle license number. Several dozen other cities, including Atlanta and Seattle, passed similar ordinances.
Ordinarily the police would need to show probable cause, and to seek individual warrants on a person-by-person, case-by-case basis, to gather such information. The L.A. ordinance, however, allows police to simply demand it from a hotel, with no judicial or other oversight. The premise was that the information was the property of the hotel once the guest voluntarily surrendered it in order to stay the night. Personal information transformed into “business records,” L.A. argues, is inherently less “private” than personal information per se.
Similarities to how the NSA collected mountains of phone call data from places like Verizon, claiming it too was simply now part of business records routinely available per the Patriot Act, are noted.
The U.S. Supreme Court, after two opposite rulings through lower courts, has agreed to hear the case after the City of Los Angeles’ petition to do so. L.A. claims “These laws expressly help police investigate crimes such as prostitution and gambling, capture dangerous fugitives and even authorize federal law enforcement to examine these registers, an authorization which can be vital in the immediate aftermath of a homeland terrorist attack.”
In addition to the clear, broad Fourth Amendment violations, opponents cite the reality that information, once gathered, can be disseminated anywhere for any purpose. Data gathered in L.A. for a perhaps legitimate gambling investigation can go on to populate an infinite number of databases indefinitely for an undeterminable range of purposes into the future. It does not go away. It waits to be used.
And all that brings us to Virginia.
Virginia Police Collect and Share Phone Data
Five local police departments in southeastern Virginia have been secretly and automatically sharing telephone data and compiling it into a large database for nearly two years. According to a 2012 memorandum of understanding published for the first time this week by the Center for Investigative Reporting (the database had been kept secret from the public,) the police departments from Hampton, Newport News, Norfolk, Chesapeake, and Suffolk all participate in something called the “Hampton Roads Telephone Analysis Sharing Network.”
Those police departments “agree to share telephone intelligence information derived from any source,” including subpoenaed telephone call detail records, subpoenaed telephone subscriber information, and seized mobile devices. The telephone intelligence information will be stored in the master Pen-Link telephone database and participating agencies can make inquires of the database by either telephone or e-mail contact with a member.”
Such data transfers, the document goes on to explain, can happen automatically if the agency agrees to have certain software installed on their computer, or via e-mail or DVD. No information is available as to what, if any, data security protocols are in place.
The significance of such data transfer cannot be underplayed. The assumption by the police is that any data gathered legally– for example, under warrant, after a showing of probable cause specific to a case or incident– can then be stored, shared and repurposed forever as the police see fit. The shaky legal premise for this whole system is that once taken in via some sort of legal means (though of course there is no outside control that all of the data was gathered legally), the data becomes akin to common property, and no further justification or judicial oversight needs to be applied to its use, any use, ever, forever.
An even shakier legal premise it that a secret database of any kind can be maintained by the police: Virginia law, The Government Data Collection and Dissemination Practices Act, specifically states “There shall be no personal information system whose existence is secret.”
Not an End in Sight
Local actions have commonalities with the larger actions the NSA has been doing. The use of the collective where the law intended the individual– a single phone call versus redefining every call as a single set of business records– is clear. The manipulation of a legal act, such as collecting information via a warrant and then repurposing it into a general pool of data in Virginia, is also a marker of modern times. The most significant commonality between local actions and federal ones is the broad contempt for civil liberties. And that describes Post-Constitutional America as clearly as anything else.
The examples above are, or likely soon will be, going to be tested in court. Other offenses to the Fourth Amendment have fallen to the People’s side: In 2012, a court ruled law enforcement authorities generally need search warrants when they attach GPS devices to a vehicle. In July 2014, the Supreme Court said that the authorities need warrants to dive into the mobile phones of people they arrest.
At the same time, the proliferation of low-cost surveillance devices, such as license plate scanners and Stingray, continue to raise new questions even as a handful of older ones are resolved. The battle against the tyrant King George continues.
As some readers may know, I am former employee of the Department of State, and after publishing a book critical of State’s efforts in the previous Iraq War We Meant Well, I was subjected to a year of legal battles, including threat of prosecution.
But standing up for your rights is a part of having those rights. A free society is based on a marketplace of ideas, that free speech thing we all learned about in civics class. We all need to hear from all sides to become the “informed citizenry” that Thomas Jefferson said was so essential to a democracy. And who better to enlighten the public about how their government really works than former federal employees, the people who were on the inside, now private citizens?
It would be wrong then for a former employer, as codified into its agency regulations, to expect its retirees to “refrain from engaging in activities of any kind, including writing manuscripts or giving speeches, which would be prejudicial to the foreign policy interests of the United States.” But that is exactly what the U.S. Department of State does.
They even wrote it down, stating (emphasis added):
Former employees are expected to refrain from engaging in activities of any kind, including writing manuscripts or giving speeches, which would be prejudicial to the foreign policy interests of the United States.
Former employees are encouraged to make public appearances and write manuscripts for unofficial publication which constructively contribute to the interests and objectives of the Department of State and the Government.
So let’s get this straight. Private citizens, who happened to once work for the State Department in some capacity, perhaps not even one directly connected to policy issues, are expected to not say anything in a public forum against the interests of the United States? And they are encouraged to say things that contribute to the objectives of the Department of State? Just ’cause?
Though this all smacks of some sort of Orwellian attempt to coerce, er, expect, a class of private citizens to propagandize, um, engage in activities, that use their authority and reputation as former State Department employee to promote only the side of a discussion that supports the government’s position, I’ll play along. I have to right, as a Good Citizen?
But I think the problem will be in how the State Department and I might differ on just what the “interests and objectives of the Department of State and the Government” are that I am told because I once worked there I must support.
But let’s start with something we can agree on. The State Department’s Mission Statement says in part that the agency should seek to “Shape and sustain a… democratic world.” I agree.
But I disagree that admonishments to spew the government line as a private citizen, as State wants, contribute to that goal. Instead, I believe that exercising my First Amendment rights as a private citizen contribute much to democracy. Any exercise of rights strengthens a democracy, the same as any attacks on those rights diminish it. Bleating out the party line is for countries ruled by parties. Did you know that North Korea’s interests and objectives include claiming Kim Il Sung invented the television? I guess their former employees are encouraged and expected to write nice things in comments on YouTube and stuff about that.
Welcome to another episode of Post-Constitutional America, where the old rules do not apply. See something, say something, unless you used to work for the State Department and what you say does not agree with the government’s version of things.
But oh! Some feel that is too much, too dramatic. Fair enough. The whole problem is not that State can ever enforce these rules– they can’t– it is that they exist as a testament to how they think. It’s that whole idea of “loyalty” above all else, and of course the hypocrisy of saying how important dissent is while trying very hard to stifle it. At the end of the day such things erode employees. So many just kind of give up and stop caring too much about what they do and just glide through the motions.
BONUS: The same section of regulation quoted above also says “The State Department will be glad to furnish, upon request, advice, assistance, and copies of printed publications to former employees who wish to obtain information on particular subjects.” Or not. I have asked State for comment and “advice” on these regulations and have not received any response.
FYI: State has not contacted me personally about anything I have written. This article is based on State’s regulations. Whether currently enforced in some way or not, their existence is reason enough to call out.
While we wait on more news of now-you-see-him, now-you-don’t Kim Jong Un, let’s peek into his country. What kind of world is it when North Korean propaganda about the United States is more correct than crazy? Let’s fact-check and see how the Northerners did.
The Korean Central News Agency Schools You
North Korea isn’t known as a big internet kind of place, but they do have a propaganda/news agency in Japan that stays busy. The funny ties between North Korea and Japan are always worth a look; Japan imported vast numbers of Koreans during World War II as slave labor. Many ended up staying as the Korean War broke out, and divided themselves into groups supporting the North and South. There are now some 600,000 Koreans in Japan, many of whom are second- and third-generationals born in Japan.
So, the Korean Central News Agency, run by sympathtic Koreans working out of Japan, had some issues with the U.S., excerpted here. Let’s see what they have to say using their original English, with the fact-checking part in [brackets]:
Model for Human Rights
As the world’s worst human rights abuser, it [the U.S.] pretended to be a “model” in human rights performance. [Note: See "a shining city on a hill" claims by presidents from Obama back]
Racialism is getting more severe in the U.S. The gaps between the minorities and the whites are very wide in the exercise of such rights to work and elect. The U.S. true colors as a kingdom of racial discrimination was fully revealed by last year’s case that the Florida Court gave a verdict of not guilty to a white policeman [sic] who shot to death an innocent black boy. [Note: See Michael Brown, Donald Sterling, Trayvon Martin or this.]
At present, an average of 300,000 people a week are registered as unemployed, but any proper measure has not been taken. [Here the North Koreans are wrong; the Labor Department reported 377,000 people filed for initial unemployment benefits in the week ended January 21, up 21,000 from a revised reading of 356,000 claims the week before.]
The housing price soared 11.5 percent last year than 2012 and 13.2 percent in January this year than 2013, leaving many people homeless. [Close; prices in 20 cities rose 12.9 percent year over year.]
The number of impoverished people increased to 46.5 millions last year, and one sixth of the citizens and 20-odd percent of the children are in the grip of famine in New York City. [North Korea nailed it! In 2012, 46.2 million people in the United States lived in poverty. The nation’s official poverty rate was 15.0%. By the way according to the U.S. government, if you as a single person earn more than $11,344 you are officially not impoverished. The bar seems pretty low-- the average one-bedroom apartment rent in Tulsa, Oklahoma is about $7500 a year, leaving you as a non-poverty person with a sweet, sweet $3800 to eat, pay utilities, car, clothes, etc. Most places in America have higher costs of living than Tulsa.]
All sorts of crimes rampant in the U.S. pose a serious threat to the people’s rights to existence and their inviolable rights. [North Korea again! Here's a map showing crime in the U.S. outstrips most of its peers in Europe and elsewhere.]
The U.S. government has monitored every movement of its citizens and foreigners, with many cameras and tapping devices and even drones involved, under the pretext of “national security”. [Don't make me Google Snowden and NSA for you on this one please.]
Meanwhile, bills on easing arms control were adopted in various states of the country, boosting murderous crimes. As a result, the U.S. has witnessed an increasing number of gun-related crimes in all parts of the country and even its military bases this year. In this regard, the United Nations on April 10 put the U.S. on the top of the world list of homicide rates. [OK, the North Koreans are a little fuzzy on this one, depending on how you define homicide. For large swaths of the MidEast and the developing world, people get killed all the time, in great numbers. Here's the data. I was unable to tease out any broad statistics that separate a criminal kind of murder like on TV from war and suicide bombs kind of murder. But here's one stat that supports the North Korean assertion: in 2006 in the US, there are roughly 17,000 murders, of which about 15,000 were committed with firearms. By contrast, Britain, Australia and Canada combined saw fewer than 350 gun-related murders each year. In the year that the U.S. saw 17,000 murders overall, there were only 794 in Germany.]
The U.S. also has 2.2 millions of prisoners at present, the highest number in the world. For lack of prisons on the part of the government, individuals are providing detention facilities to make money. [Wrong! The U.S. has 2.4 million people behind bars, about one percent of our entire population. The most serious charge against 51 percent of those inmates is a drug offense. Only four percent are in for robbery and only one percent are in for homicide. Racism? Black men were more than six times as likely as white men to be incarcerated.]
Hail to the Chief
Its chief executive, Obama, indulges himself in luxury almost every day, squandering hundred millions of dollars on his foreign trip in disregard of his people’s wretched life. [Gotta call this one for the North Koreans. While the White Houses never discloses costs for trips because “so much of the money is for security,” Air Force One, the president’s personal 747, costs $228,000 an hour to operate. A typical overseas trip involves eleven or more aircraft, including C-5 transports, aerial refuelers and small passenger jets that fly along with Air Force One. The president also likely enjoys fighter air cover and AWACs support, costs unknown.
About a decade ago, the General Accounting Office released two fairly detailed reports on President Bill Clinton’s foreign travels (here and here). Secret Service costs were omitted as classified, but other government expenses were tallied up. A Clinton trip to six countries in Africa in 1998 rang up at $42.8 million, most of that for military aircraft costs. A trip to Chile came in at $10.5 million. A trip to China that year cost $18.8 million.
Details are hard to find online, but my own experience with presidential visits from 24 years in the State Department is that typically entire floors of hotels or more are booked “for security,” hundreds of local cell phones are purchased and usually the president’s food is flown in, sometimes the water he’ll drink as well. One unsubstantiated report said Obama’s party booked over 500 hotel rooms on a trip to India.
(Former Foreign Service Officer John Brown has a detailed, funny, from-the-ground account of a presidential visit)
(North Korea is an awful place with horrendous human rights abuses. This article is about the U.S., not North Korea.)
War is Peace, Hate is Love, that kind of thing. Drone killings of wedding parties are for our freedom. NSA reading our Facebook stops terrorism. Congress cutting food stamps versus the Pentagon not being held even mildly accountable for trillions.
What? Here’s a report from Reuters:
The Pentagon is largely incapable of keeping track of its vast stores of weapons, ammunition and other supplies; thus it continues to spend money on new supplies it doesn’t need and on storing others long out of date. It has amassed a backlog of more than half a trillion dollars in unaudited contracts with outside vendors; how much of that money paid for actual goods and services delivered isn’t known. And it repeatedly falls prey to fraud and theft that can go undiscovered for years, often eventually detected by external law enforcement agencies.
Because of its persistent inability to tally its accounts, the Pentagon is the only federal agency that has not complied with a law that requires annual audits of all government departments. That means that the $8.5 trillion in taxpayer money doled out by Congress to the Pentagon since 1996, the first year it was supposed to be audited, has never been accounted for. That sum exceeds the value of China’s economic output last year.
It will be a pretty big job to sort things out and account for the odd misplaced trillion or two. Reuters tells us:
No one can even agree on how many accounting and business systems are in use. The Pentagon itself puts the number at 2,200 spread throughout the military services and other defense agencies. A January 2012 report by a task force of the Defense Business Board, an advisory group of business leaders appointed by the secretary of defense, put the number at around 5,000.
But it’s OK, taxpayers, because in 2009 Congress passed a law requiring that the Defense Department be audit-ready.
By 2017. We’re doomed.
“Dude, I grew up on the classic U.S. sound, you remember, democracy, equality, promotion of freedom. My favorite was ‘The Peace Corps,’ but ‘We Won’t Invade You This Month’ got me through some rough times in college. But this new stuff, meh,” said one long-time fan, sweeping aside his gray ponytail.
“We Will Bomb You, Because” opened big inside the United States, where the United States still enjoys a steady following. A recent track, “Who Cares What You Think, Featuring al Qaeda,” saw over one million downloads its first week alone. “The addition of al Qaeda to the tune pumped new life into an old franchise,” stated Rolling Stone in its review, “but subsequent attempts to roll in ISIS and Khorasan just did not work when al Qaeda balked at joining the U.S. in touring the new material. “Just isn’t the same,” said Stone. “America has gone to the well too many times with the same material. They’re just phoning this new wave of terror stuff in.”
When reached for comment, lead singer of the United States Barack Yeezus Obama remained hopeful. “Any time the group moves in a new direction, you risk losing some old time fans. We saw that just after we dropped the “NSA” album. But many times the old timers just give up and come to reluctantly accept what you are shoveling out, and of course new material also brings in new fans.”
“For example,” chimed in backup singer George The W Bush, “look at what happened with our seminal ‘It’s 9/11, Bitch’ multi-platinum work. Not only did we rope in millions and millions of fans worldwide, but after sales tapered off following the disastrous Iraq tour, our old fans sucked it up and started taking their shoes off at the airport without a complaint. We even spun off the mega-platinum group DHS from all that. And when a small group of former fans started making too many negative comments online, we just had them tortured and imprisoned indefinitely. Let’s see Beyonce do that.”
“And,” said Obama hopefully, “the recent tours in Yemen and Somalia have been huge successes. We have high hopes for Syria and the new material as well. We da’ bomb ya’all!”
The band also acknowledged the growing popularity of long-time rival group Iran, but shrugged off any notion that the United States would not continue to dominate the market in the long-run.
A spokesperson for the United States did quietly add that the group is not totally unaware of its falling image abroad. She hinted that the current tour will work in additional classic material, and a greatest hits collection will be out in time for Christmas. The United States plans also to donate a percentage of sales to the Wounded Warrior charity.
“You gotta give back,” said the spokesperson.
Fire Dog Lake blogger Ohio Barbarian posted this review of Ghosts of Tom Joad: A Story of the #99 Percent (emphasis added).
Yes, I know this book was featured on the FDL Book Salon back in May. I didn’t read that live; only skimmed it after the comments were closed, and I probably wouldn’t have commented on it anyway, but when I saw Ghosts of Tom Joad, a Story of the #99Percent at my local public library, I thought I’d check it out.
I’m glad I did. It’s a great book and, in my ever so humble opinion, it is every bit as powerful as the classic John Steinbeck novel to which it refers.
Set in a fictional small town in Ohio, home of a shuttered glass factory and a shattered American Dream, the protagonist, Earl, is a high school football player who graduated around 1977. He’s not exactly a sympathetic character, at least not to me. He’s basically an ignorant jock who did as little school work as possible, then dropped out after he got hurt in the middle of dumb teenage jock roughhousing, couldn’t play anymore, and went to work in the same factory where his World War II vet grandpa and his Korean War vet dad had worked before him.
He starts out, at least, as the prototypical “small town small mind” my mother and then later myself always despised. By that I mean someone whose whole world is his little town, who never really wanted to go anywhere else, and was mostly incurious about the rest of the planet. Someone who just assumed if he didn’t get some miraculous football scholarship, he’d spend his life working at the factory, get married, and raise kids in the same little town just like his recent ancestors, and that was fine by him.
In other words, he’s who Nixon’s cabinet secretary Earl Butz was referring to when the latter said, “All the average American wants is cold beer in the fridge and a warm place to shit.”
Of course, being in a Rust Belt midwestern town, our Earl is laid off after just a few months, and quickly spirals down from one McJob to the next to Bullseye, a retail store clearly modeled by the author on Wal-Mart, to more McJobs to temp work to day labor to homelessness and despair.
Van Buren takes an interesting approach, making the whole story a series of flashbacks while Earl is riding on the city bus, which is sometimes real and sometimes metaphysical, or at least metaphorical.
I didn’t find most of the characters all that sympathetic or even likable, but that’s not necessary in order to empathize with them, at least not for me. Like Steinbeck did with The Grapes of Wrath 74 years ago, Van Buren creates a world where selfishness and greed on the part of a few has caused despair and sometimes sheer hopelessness on the part of the many, and he makes it real. I think it’s quite an accomplishment.
My favorite parts of the book are astute observations by various characters about the deliberate destruction of America’s social, economic, and even moral sustainability by the top 1% for fun and profit, and the often subconscious collusion they get from most of the rest of us because of how we’ve been told to think since birth. My very favorite is, “It ain’t about left and right anymore, it’s about up and down.” A close second is “This was no accident, no invisible hand…we changed from a place that made things…into a place that just makes deals. Making things creates jobs, and jobs create prosperity. Making deals just creates wealth for the dealers.”
Indeed. There’s more, much more, and the book is well-written and an easy read. I highly recommend it. In fact, it should be mandatory reading in public high schools and universities.
Note: Though I also write for the site Fire Dog Lake, I do not know the author of the review, and have never met him/her.
One of the exceptional things about Post-Constitutional America is how instead of using the traditional tools of an autocracy– secret police, torture, mass round ups– the majority of Americans have given up their rights willfully, voluntarily, almost gleefully. The key tool used by government to have accomplished this is fear-mongering.
Fear is one of our most powerful emotions. It plays a very important evolutionary role after all; the first folks who learned to fear lions and tigers and bears tended to live longer than those who were slower learners. Fears from childhood about heights or spiders often stick with us forever. So using fear of terrorists and other bogeymen has proven to be the most effective tool of the world’s first voluntary national security state and its coalition partners in scariness.
The post-9/11 months are nothing but a master class in fear-mongering. Condoleezza Rice’s oft-quote statement about not wanting to wait for a mushroom cloud over America to be the smoking gun of terror is near-Bond villain level evil genius. The 2003 Iraq War was sold in large part on fear-mongering over fake nukes, fake biological weapons and a fake hunt for WMDS.
A few recent examples illustrate how the work continues. Because nothing is better to keep fear alive than a regular flow of refreshers (watch out behind you, a spider!).
The Australians have proven excellent students of the American model. After a single phone call from one purported jihadi in the Middle East to a purported jihadi in Sydney suggesting a random beheading would be a fine terror act, the Aussies kicked off the largest counterterrorism operation in Australian history, with full world-wide media coverage of course, all of which resulted in the arrest of one 22-year-old. Prime Minister Tony Abbott said it showed that “a knife, an iPhone and a victim” were the only ingredients needed for a terrorist attack.
B.S. Factor: Between 2009-2010 (last statistics located) 257 Australians were killed domestically, many with knives. None of those cases involved the largest manhunts in Australian history. Drunken dingos seem more a threat to citizens than terrorists, perhaps even with an iPhone and a knife for the dingo.
The British are loosely joining the coalition against ISIS in Iraq, based largely on the beheading video of a single Brit hostage (beheading videos of two American hostages have also been an effective fear-mongering tool in the United States recently.) Since most westerners do not visit the Arabic-language web sites where such videos widely appear, this form of fear- mongering requires the assistance of the main stream media, who appear more than happy to assist by re-running the videos in an endless loop.
B.S. Factor: In 2013, 6,193 Brits died abroad. Very few cases even made the news in a small way.
Back here in the U.S., higher-level encryption built directly into the new iPhone caused much concern among law enforcement, who will have a harder time mass-monitoring the communications of all Americans as they have freely done for the past decade or so. FBI Director James Comey at a news conference already focused on ISIS terror threats said “What concerns me about this is companies marketing something expressly to allow people to hold themselves beyond the law.” He cited specifically kidnapping cases, in which exploiting the contents of a seized phone could lead to finding a victim, and predicted there would be moments when parents would come to him “with tears in their eyes, look at me and say, ‘What do you mean you can’t’ ” decode the contents of a phone.
B.S. Factor: We could find no statistics on how often decoding the contents of a phone alone resolved a kidnapping case. We also note that even if the FBI or the NSA could not actually break the iPhone encryption, existing, working tools unaffected by encryption such as triangulation geolocating, standard GPS, cell tower tracking, Stingray intercepts, call logs, email logs, cloud contents, and web searches can provide a wealth of data remotely, without even the need to seize a physical phone.
OMG: Americans May Be Killed By Terrorists
Obviously the uber fear-mongering are the pervasive streams of warnings about “almost executed” terror plots inside America. Whether told “if you see something, say something” on a bus, strip searched in the airport or hearing about one pseudo-plot after another on the news, the meme is that danger lurks everywhere in the United States.
B.S. Factor: Since 9/11, as few as 16 Americans here in Das Homeland has been killed by terrorists, almost all fellow Americans. On the high end, some claim the death count is about 100, but that includes murders at abortion clinics not everyone would call terrorism as far as traditional government fear-mongering is concerned.
Maybe more terrifying than anything else, in America you are eight times more likely to be killed by a police officer than by a terrorist. That’s a broad average; it is higher if you are a young African-American male.
To be fair, fear-mongering in general, and fear-mongering over terrorism, have a much longer history of use by autocrats than what has been employed since 9/11. One national leader in fact said “The easiest way to gain control of a population is to carry out acts of terror. The public will clamor for such laws if their personal security is threatened.” That was Joseph Stalin.
So yes, there is indeed much to fear.
You see, Ray just beat down, in court, Hillary Clinton, the State Department, and a small part of Post-Constitutional America.
Who is this Guy?
McGovern is a changed man. He started out in the Army, then he worked for the CIA from the Kennedy administration up through the first Bush presidency, preparing the president’s daily intel brief. He was a hell of a spy. McGovern began to see the 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.
Ray McGovern was put on the State Department’s Diplomatic Security BOLO list– Be On the Look Out– one of a series of proliferating government watch lists. What McGovern did to end up on Diplomatic Security’s dangerous persons list and how he got off the list are a tale of our era, Post-Constitutional America.
Offending the Queen
Ray’s 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 from the side by a man whose name is redacted from public records. Photos (above) of the then-71 year old McGovern 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.
But because he had spoken back to power, State’s Diplomatic Security printed up an actual wanted poster citing McGovern’s “considerable amount of political activism” and “significant notoriety in the national media.” Diplomatic Security warned agents should USE CAUTION (their emphasis) when stopping McGovern and conducting the required “field interview.” The poster itself was classified as Sensitive but Unclassified (SBU), one of the multitude of pseudo-secret categories created following 9/11.
Violations of the First and Fourth Amendments by State
Subjects of BOLO 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 is a standing directive 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. These directives slash across the Fourth Amendment’s prohibitions against unwarranted search and seizure, as well as the First Amendment’s right to free speech, as the stops typically occur around protests.
You Don’t Mess with Ray
Ray McGovern is not the kind of guy to be stopped and frisked based State Department retaliation for exercising his First Amendment rights in Post-Constitution America. He sued, and won.
The Partnership for Civil Justice Fund took up the case pro bono on Ray’s behalf, suing the State Department. They first had to file a Freedom of Information Act demand to even get ahold of the internal State Department justifications for the BOLO, learning that despite all charges having been dropped against McGovern and despite having determined that he engaged in no criminal activity, the Department of State went on to open 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.” It also cited McGovern’s “political activism, primarily anti-war.” The investigation ran nearly seven months, and resulted in the BOLO.
With the documents that so clearly crossed the First Amendment now in hand, the Partnership for Civil Justice Fund went to court. They sought, and won, an injunction against the State Department to stop the Be On the Look-Out alert against McGovern, and to force State to pro-actively advise other law enforcement agencies that it no longer stands.
McGovern’s constitutional rights lawsuit against George Washington University, where his arrest during the Clinton speech took place, and the officers who assaulted and arrested him, is ongoing.
Watch Lists in Post-Constitutional America
McGovern’s case has many touch points to the general state of affairs of post-9/11 government watchlists, such as No-Fly.
The first is that it is anonymous interests, within a vast array of government agencies, that put you on some list. You may not know what you did to be “nominated,” and you may not even know you are on a list until you are denied boarding or stopped and frisked at a public event. Placement on some watchlist is done without regard to– and often in overt conflict with– your Constitutional rights. Placement on a list rarely has anything to do with having committed any actual crime; it is based on the government’s supposition that you are a potential threat, that you may commit a crime despite there being no evidence that you are planning one.
Once you are on one watchlist, your name proliferates onto other lists. Getting access to the information you need to fight back is not easy, and typically requires legal help and a Freedom of Information Act struggle just to get the information you need to go forward. The government will fight your efforts, and require you to go through a lengthy and potentially expensive court battle.
We’ll address the irony that the government uses taxpaying citizens’ money to defend itself when it violates the Constitutional rights of taxpaying citizens another time.
Donating to The Partnership for Civil Justice Fund
Persons wishing to donate to The Partnership for Civil Justice Fund may do so online. I have no affiliation with the organization and do not benefit in any way from donations.
Full Discloure: I do know and respect Ray McGovern, and was once the subject of a State Department Be On the Lookout Alert myself, following these remarks I made about Hillarly Clinton. I have been unable to ascertain the status of my own BOLO alert but believe it is no longer in force. The State Department refuses to disclose any information to me about my status.
The searches would often be destructive, and intended so. Some of the time the point was to seize incriminating “revolutionary” materials, many times the point was simply to harass and threaten people the Crown feared and wanted to send a message to. It was in direct response to such invasions of freedom that the Founders wrote in the Fourth Amendment “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”
Posse Comitatus Act
Fast-forward to 1878, in the Constitutional America Era, when, in the wake of the Civil War, the Posse Comitatus Act was passed into law. The Act limit the power of the federal government to use the armed forces of the United States to enforce state laws, though the general interpretation evolved to limit severely the use of federal troops for law enforcement purposes.
While both Bush and Obama weakened the Act to allow for troops to deploy (Bush) domestically and arrest civilians (Obama) in the wake of terrorist acts, the general idea remains intact. There are plenty of law enforcement agencies, local and federal, around to enforce the law. When the home town cops can’t handle it, the FBI can step in, not the military.
Old Rules Do Not Apply
Despite that clear background, it comes as little surprise that here in Post-Constitutional America, the old rules do not apply, even on a small scale.
Yet in perhaps a tiny but significant decision, an appeals court ruled federal authorities had shown “a profound lack of regard for the important limitations on the role of the military in our civilian society” when they allowed the U.S. Navy to scan the computers of every citizen in the state of Washington fishing for evidence, any evidence of any crime, that could be turned over to local cops. The court so wished to admonish the Navy’s Criminal Investigative Service (NCIS) for overstepping regulations that have evolved from the Posse Comitatus Act that it took the unusually strong step of excluding the computer evidence in any new trial of a child pornographer. “The extraordinary nature of the surveillance here demonstrates a need to deter future violations,” said the ruling.
What happened? An NCIS investigator charged with online surveillance allegedly to protect naval facilities in Washington state, determined that his scope included electronic monitoring of the whole state and its entire civilian population. Since Navy families had kids, and/or because Navy personnel could be child pornographers, the NCIS argued extending the surveillance away from terrorism to scanning for kiddie porn had a legitimate military-related purpose. It is unclear if the employee acted on his own with no supervision, or acted under orders; neither is a good scenario.
The NCIS spook set loose in Washington state with a computer tool called RoundUp on the Gnutella peer-to-peer network known to be favored by child pornographers to exchange illegal images. Gnutella allows a direct connection between multiple personal computers in lieu of a single server, so that tracking down and eliminating the “source” of files is much more difficult. The RoundUp software (a similar product is called GridCop) identifies computers on a peer-to-peer network by their individual Internet Protocol (IP) addresses. Investigators then work backwards to determine which service provider (such as Verizon) hosted the IP address and subpoena the provider for the name and address of the account holder. Investigators can then apply for and execute a search warrant for the computer and arrest the owner.
Tech Point: RoundUp works by detecting known child porn files that have been identified in investigations based on cryptographic hash algorithms, or hash values, which are unique numeric identifiers generated based on the content of digital files. Duplicate files will usually have the same hash value even if users rename files.
The FBI and local cops are doing this kind of thing all the time; the big deal in this case is that the agency at work is the U.S. Navy, which, under Posse Comitatus, is not supposed to be involved in such law enforcement. That is the illegal part, and the part that raises serious questions in an already nasty Post-Constitutional environment about what parts of the body of law the federal government will follow, and which parts it will ignore. That is not how a democracy works.
More on the Specific Case
The short version is that after actively monitoring the entire state for well, whatever it could find, the NCIS found one alleged child pornographer.
NCIS gathered evidence, turned it over to local police, who obtained a warrant based on the Navy search to legally “reacquire” the evidence (see also parallel construction, where the NSA and DEA use a similar illegal process.) The owner of the computer was convicted of possessing and distributing child pornography, and is now serving an 18 year sentence at a federal prison. He appealed, claiming the evidence against him was obtained illegally, and the court threw the evidence out. The case will likely be retried. Without the actual evidence of child porn images, prosecutors have little to work with. The feds may appeal the decision. The convicted man remains in jail
Nobody likes child pornographers. As a parent, I wish every one of them would be fully, legally prosecuted and punished. But before you say “Well, NCIS did a bad thing, but in the end a child pornographer may be let off scot-free, which is worse” remember it was in fact the illegal acts of the NCIS that tainted the evidence and which themselves will see the guy walk if that is what happens. Bad law enforcement does not create good results. Walking all over the law to enforce it does little good for our society, and outright contempt for the law, as exhibited by NCIS, is evil in a society that once claimed to be a democratic example to others of the rule of law.
“Letting a criminal go free to deter national military investigation of civilians is worth it,” the judge in this case wrote. “[This] amounts to the military acting as a national police force to investigate civilian law violations by civilians.”
Deterrence may indeed be the order of the day. The NCIS case above surfaced only after the specific person convicted appealed, and had legal help smart enough to ask where the evidence against him came from. We know nothing about the extent of NCIS spying on civilians in Washington state, whether or not this is NCIS policy, and whether or not such spying, rogue or not, takes place in other states with military facilities. The NCIS employee at fault in Washington did say a colleague in Georgia was doing the same thing, so there is reason to wonder outside of just raw speculation. Those might have been good questions for the judges who decided the case, or the journalists who covered it, to ask.
As for the NCIS, a spokeswoman declined to talk about whether the service has undertaken similar wide searches for child pornography offenders in other states with a significant Navy presence, like Florida, Virginia or California.
Lastly, there are law enforcement agencies directly charged with hunting down child pornographers, armed with the same tools or better than NCIS. The FBI comes to mind. So where were they while one NCIS person was free-lancing an assault on the Posse Comitatus Act and the Fourth Amendment?
The people I am talking about in my book Ghosts of Tom Joad: A Story of the #99 Percent seem illusive here on the East Coast; in New York, visiting the South Bronx, there are plenty of poor people. The sense in Midtown was that if they didn’t deserve to be poor, then, well, they were sort of naturally thrust into it as immigrants, as drug users, simply because they lived in a poor part of the city and it always would be. Kind of the natural ecology of the place.
In talking to people in New York the working class tends to appear as caricatures, like Joe the Plumber in interior America was to politicians, the people of Brigadoon for elections, who then fade after the candidates grab votes promising new jobs and manicured optimism for a working class that somehow still listens to them. It’s inconveniently convenient to walk among them every four years, like having to be nice at your in-laws’ house for a family gathering. Ok as long as it doesn’t drag on too long.
The View from Ground Zero
The story is different when I talk in Kansas, Kentucky or Ohio. People there nod their heads, and everyone has a story to add: the family that lost their home to the bank, the factory that closed down and the retail outlets that replaced the factory that closed down, one after another piling up like the late spring snow we had that week. People say “But I’ll take any job. I just want to work. I’m not too proud to get my hands dirty. I still know how to sweat, the good kind.”
I believe them all. But even if they’ll accept minimum wage, how far is a couple of dollars an hour throwing construction debris into a Dumpster going to get you? Better than nothing but not much better. You going to do ten hours of labor for the phone bill? Another ten for the groceries each week? Another 20 or 30 for a car payment? How many hours you going to work? How many can you work? Nobody can make a full living doing those jobs. You can’t raise a family on minimum wage. And you can’t build a nation on the working poor. It is a rough portrait of an American past and a tough vision to push into an American future.
But my goal isn’t to speak in broad terms; I want to understand what’s happening on an almost documentary level. So what stood out was the proliferation of a new, New Economy, one designed to prey on the fact that people who don’t deserve to be poor are now poor. There are whole industries that sprang up because poor people became a new market.
Pawn shops are an old business, but one that has grown alongside the working poor. In 1911, there were only 1,976 licensed pawnbrokers in the country. By 1988, there were 6,900 pawnshops in the U.S. (one for every two commercial banks) and in 2012 there were almost 14,000 pawnshops in operation throughout the United States.
Pawn shops are one thing, but there are newer predators on the ground. I ended up buying Kenny’s story for two cups of coffee. Kenny told me that he couldn’t qualify for a credit card, the middle class’ old way of borrowing money. Average people with cards carry monthly balances of almost $16,000 and that’s at 12 to 15 percent interest, so not a helluva lot different from payday loans. Just looks cleaner. Kenny told me about the trap of the rent-to-own stores, who let people without a credit card rent a TV or a washer and dryer until they paid back a lot more than the appliance is worth. It was more like time payments than rental as most people used to understand the word. By the time you owned the appliance, it was old, and with interest you dropped $450 on a $200 item. You needed something and there wasn’t any other way to get it.
Rent-to-Own is a big, big business. According to Broke, USA: From Pawnshops to Poverty, Inc. – How the Working Poor Became Big Business by Gary Rivlin, the largest rent-to-own operation, Rent-A-Center, reported three billion dollars in revenues in 2008. The bottom line has only gotten stronger for them since.
Kenny even said he’d tried to cash in on it for himself, working briefly for a collections agency. When folks could not pay, the debt got sold down the line. Some big bank wasn’t going to fuss over small change, so it sold the ownership of the debt to a big agency, who sold it to a smaller one like he worked for, a place that might see profit in getting 20 percent of a two hundred dollar collection. At those rent-to-own joints, customers have to sign tons of papers, all looking like they were written by a Keep Lawyers Employed committee, so that if you miss a payment the store takes back the whole appliance, not just the half they still own.
This scared the people renting, but actually the last thing that company wanted was to repo a two-year-old TV, so Kenny’s job was to knock on the door and try to get them to pay something, and at the same time see if they’d refinance at an even higher rate. Loan to pay a loan. That old TV was worth nothing to the rent-to-own store, but it was some kind of magic thing to some old lady. If she was a single mom, the TV was her babysitter — feed your sister after Wheel of Fortune, lights out after Idol — and she wasn’t going to give it up easy. When Kenny talked them into an even uglier refi deal that let them keep the TV, they’d usually thank him for helping them out. Sometimes, he said, moms without cash would offer what he called a couch payment, bed in return for a report to the boss of no one home. His last customer before he quit the job was a former soldier who owed for a bicycle he was renting/buying over time for his daughter’s ninth birthday. Kenny said to hell with it, he wasn’t going to repo a Barbie two-wheeler with pink streamers on the handlebars and reported it as No One Home in that part of America.
The Ohio town we were in was falling apart economically, but it still had its looks, to a point. This wasn’t the South Bronx. Old habits die hard. When middle class folks fall out of the middle class, they still tend to keep things neat and see that grass gets cut. But what was once maybe quaint was now just old and tired. Pretty soon I worry there’ll be no one home.
Historians of the Constitutional Era of the United States (1789-2001, RIP) will recall the Fourth Amendment to the Constitution, the one that used to protect Americans against unreasonable and unwarranted searches.
The Supreme Court had generally held that searches required a warrant. That warrant could be issued only after law enforcement showed they had “probable cause.” That in turn had been defined by the Court to require a high standard of proof, “a fair probability that contraband or evidence of a crime will be found in a particular place.”
The basic idea for more or less over 200 years: unless the government has a good, legal reason to look into your business, it couldn’t. As communications changed, the Fourth evolved to assert extend those same rights of privacy to phone calls, emails and texts, the same rules applying there as to physical searches.
That was Then
It was a good run. The Bill of Rights was designed to protect the people from their government. If the First Amendment’s right to speak out publicly was the people’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Folks, as our president now refers to us, should not have to fear the Knock on the Door in either their homes or The Homeland writ large.
In Post-Constitutional America (2001-Present), the government has taken a bloody box cutter to the original copy of the Constitution and thrown the Fourth Amendment in the garbage. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the concept of privacy itself: Our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint.
The government also invades our privacy in multiple other ways, all built around end-runs of the Fourth Amendment, clever wordplay, legal hacks and simple twisting of words. Thus you get illegally obtained information recycled into material usable in court via what is called parallel construction. You have the creation of “Constitution Free” zones at the U.S. border. The Department of Justice created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants, to grab folks’ emails by searching one web server instead of millions of individual homes. Under a twist of an old “privacy law,” doctors disclose your medical records to the NSA without your permission or knowledge. SWAT raids by local police designed to break into African-American businesses on harassment expeditions are also now OK.
The Center of It All: Executive Order 12333
The most egregious example of such word-twisting and sleazy legal manipulations to morph illegal government spying under the Fourth Amendment into topsy-turvy quasi-legal spying is the use of Executive Order 12333, E.O. 12333, what the spooks call “twelve triple three.” The Order dates from 1981, signed by Ronald Reagan to buff up what his predecessors limited in response to overzealous law enforcement activities. The Gipper would be mighty proud that his perhaps most lasting accomplishment was legalizing surveillance of every American citizen.
Back to today. Despite all the secret FISA court decisions and as yet uncovered legal memos, most collection of U.S. domestic communications and data is done under E.O. 12333, section 2.3 paragraph C.
Specifically, the one sentence that the government believes allows them to bypass the Fourth Amendment says the intelligence community can “collect, retain, or disseminate information concerning United States persons” if that information is “obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation.”
So, the work-around for the Fourth Amendment is as follows: NSA collects massive amounts of data on foreigners, often by hoovering up every fragment of electronic stuff flowing around the U.S. it can. So, while purportedly looking for a single terrorist email enroute to Yemen (“the needle”), the NSA collects every single email from Google, Yahoo and Microsoft (“the haystack.”) Thus, any American’s emails caught in that net are considered to have been collected “incidentally” to the goal of finding that one terrorist email. The NSA claims that the Executive Order thus makes its mass-scale violations of the Fourth Amendment legal.
Oh and hey reformers: Executive Orders by one president stay in force until another president changes or negates them. We could have one at work today written by George Washington. What that also means is that Congress, should they regain consciousness, can’t change an E.O. Congress could in theory pass a law making the contents of an E.O. invalid, but that presumes someone in Congress knows the order exists and what it says. Many E.O.’s are classified and if they are not, such as 12333, the legal documents behind them and FISA interpretations of them, likely are.
Again, as a historical note, executive orders– basically dictates from the president– once did not trump the Constitution. However, in Post-Constitutional America, they do.
As for this realization we have come upon, E.O. 12333, well, we’re all behind the curve. Edward Snowden, while still at NSA, wrote a now-famous email to the spy agency’s legal advisor, asking specifically whether an Executive Order has more legal force than an actual law passed by Congress, or indeed the Constitutional itself. The NSA’s answer was a bit convoluted, but said in a pinch the Constitution wins (wink wink), even while acting as if the opposite is true.
As General Michael Hayden, then head of the NSA, said in a blistering blast of Newspeak, “I am convinced that we are lawful because what it is we’re doing is reasonable.”
Ask Obama This Question
So let’s make it simple: Journalists with access to the president, ask this question directly: Why is E.O. 12333 being used today, interpreted by the FISA court or any other means, stating that the NSA’s surveillance of U.S. citizens is “reasonable,” and thus no warrant is required for the surveillance to continue and remain constitutional under the Fourth Amendment?
Of course getting an answer out of Obama will not happen. After all, he is the Constitutional law professor who studied the document the same way a burglar learns about an alarm system. TO BREAK IT BETTER.
BONUS: The stuff above is real amateur-level writing on E.O. 12333. When you are ready to dig in deep, get over to Marcy Wheeler’s blog. She is the smartest person working in journalism today on the subject. My debt to her is hereby acknowledged.
BREAKING: According to the Congressional Budget Office (CBO), the rich are getting richer while the poor in America continue to get poorer. And the government is contributing to all this.
You are Poorer Now than Before
Here’s the story from the CBO:
— Between 1979 and 2007, income grew by 275 percent for the top one percent of households, compared to only 18 percent for the bottom twenty percent of us.
— In 2007, federal taxes and transfers reduced the dispersion of income by 20 percent. The share of transfer payments to the lowest-income households declined. “The equalizing effect of federal taxes was smaller” in 2007 than in 1979, as “the composition of federal revenues shifted away from progressive income taxes to less-progressive payroll taxes,” thus doing less to reduce the concentration of income, the CBO said.
— The most affluent fifth of the population received 53 percent of after-tax household income in 2007, up from 43 percent in 1979. In other words, the after-tax income of the most affluent fifth exceeded the income of the other four-fifths of the population.
You can read the full Congressional Budget Office report online.
Shut Up Serfs
Just to make sure the point is clear, the top ten percent of wealth holders own roughly 70 percent of everything in the United States. The bottom half of us have roughly five percent, and falling, because…
The Great Recession of 2008 stripped swaths of the middle class of their most valuable asset. Some five million homes were lost to foreclosure between 2008 and 2013. 8.2 million more foreclosure starts took place in that same time period. Another three million homes in the next three or four years will face foreclosure.
The value of those homes and their real estate migrated into the hands of those who controlled the banks. Many homeowners were turned into renters, shoving more money upward to those who controlled the property. America’s the top earners’ wealth grew even as those responsible for the collapse were never punished and the companies involved received federal bail-out money to cover losses, being too big to fail. In a neat closing of the circle, the money came from taxes paid in part by those destroyed in the Recession.
This was one of the largest single redistributions of wealth in American, perhaps world, history. Cool– you were around to witness history in the making.
The mathematical measure of wealth-inequality is called “Gini,” and the higher it is, the more extreme a nation’s wealth-inequality.
The Gini for the U.S. is 85; Canada, 72; and Bangladesh, 64. Nations more unequal than the U.S. include Kazakhstan at 86 and the Ukraine at 90. The African continent tips in at just under 85.
Odd company for the “exceptional nation.”
Serfs All, or at Least 99% of Us
Thanks for reading this. I hope it distracted you briefly from the daily hunger pangs you face. If you don’t complain, we’ll allow you 30 minutes of TV tonight. Now back to work serf.
Apple unveils their new iPhone today. Here’s your 2014 America in a nutshell:
Be poor, Black, Muslim or expressing a political opinion and the cops will run you off the sidewalk (if not taser or kill you.)
Wait overnight on the sidewalk as a good consumer to buy the new iPhone and the cops’ll watch over you like guardian angels.
Want to have Hillary Clinton show up at your next event? Kid’s birthday party? Political rally? It’s easy, as long as you have a lot of freaking money to spend.
A ‘found” document posted on Cryptome.org lays out the terms for Hillary to attend your event.
Right up front is Hillary’s most important term: a fee of $225,000. We are all familiar with the economic travails of the Clinton’s, and the fee is really important to Hillary’s integrity as a woman of the people and, need you need reminding, her role as a mother and soon-to-be grandmother.
The fee of course is just the start. Like with cell phone plans and cable TV, the up-front price is only a starting point. Hillary also requires you to pay for a roundtrip private jet for her, which must be a Gulfstream 450 or larger. Clinton’s “travel aide” flies separately (can’t get too familiar with the help you know) first class. Her two required advance staffers need you to pay for two business class tickets. On Team Hillary, some pigs are more equal than others.
You’ll shell out for ground transportation for the whole crew as well. Though the details are not specified, expect it to be more than SuperShuttle’s blue van.
Same for the hotel rooms you will pay for. Madame requires a Presidential Suite (ironic!) while her dear travel aide needs three adjoining rooms. The lowly advance people get only single rooms. Perhaps to make up for that, you will also pay a $500 fee for “incidentals,” apparently to include buying out the minibar at that rate, to the advance lead.
Everybody has to eat, and your toll to invite Hillary over also means you pay for everyone’s meals. You’re also responsible for their phone bills and cell phone costs.
Paranoid much? As host you will also pay $1000 for a court-reporter type person to transcript Hillary’s speech. The text is apparently only for her upcoming presidential library, as the terms sheet says they will not share a copy.
The Event Itself
What do you get for these costs? About 90 minutes of Hillary’s precious time, broken down by her rules:
— A 30 minute meet and greet, but no more than 100 people and no more than 50 photos total.
— A 20 minute speech.
— Big one here: a full hour of Q&A, moderated of course.
— Clinton does not/not have meals with you.
It is specified that the meet and greet take place close to the speech area, and that the three segments be continuous so as not to take any more of the lady’s time than really necessary. Clinton must approve the person who introduces her, and the moderator.
That moderator person is quite important. S/he will pose all questions, so that there will be no naughtiness from the audience.
A Rough Tally
So let’s put some numbers to all this. We’ll assume dearest Hils is departing from Washington DC for an event in Denver, with a one night stay. Here are some rough numbers based on web searches.
Private Jet $52,000, round-trip
First Class Ticket for Travel Aide, round-trip $800
Business Class Ticket, x 2, round-trip $1400
Limo Service Two days x two cars x $500/day $2000 (includes free wet bar!)
Travel Advance Incidentals $500
Meals, based on USG per diem rate, total $1860
Phone Bills, est. $250
Hotel, Best Suite, one night $756
Hotel, three adjoining rooms, one night $1145
Hotel, two singles x three days, one night $1654
Colorado State Tax on all of the above, est. 4.49% $12,947.58
Is it Worth It?
Understand that that $301,312.58 for 90 minutes of Hillary’s time is just an estimate; she might hit the minibar hard, even with the free wet bar in the limo. There are no specified charges for internet access, candy or paper clips and staplers. It is highly unlikely that she or her staff will be content with only the standard U.S. government per diem rates for their meals (Congresspersons traveled abroad on “official business” routinely get double per diem.)
On the other hand, you might be able to negotiate some deep discounts based on the amount of your purchases. For example, the hotel rates quoted above are “best web prices.” You could go through Expedia, or maybe even get the hotel to apply the U.S. Government Employee discount rates, given how Hillary will soon be president and all.
And you do get 90 full minutes of Clinton’s time. That all works out to about $3347.91 per minute. By comparison, a high-class hooker in Denver, according to the internet, runs about $425 (link NSFW) for the same time. You can get a professional clown for your kid’s birthday party for about $200, even less if you choose one of the really creepy ones. I could not find rates for clown hookers.
So you be the judge. And bring money.
This is not satire, and a cop did get convicted for a killing. Only it is not what you think, and it shows the reality of how we value life, and the law, now in America.
A Boulder, Colorado police officer convicted of killing a beloved, semi-tame bull elk in an upscale residential neighborhood was sentenced for the death.
The officer, Sam Carter, 37, was on duty when he killed the elk, known as Big Boy, while it grazed under a tree. He did not report firing his weapon to the police department, and then said the animal had been injured before he arrived on the scene and needed to be put down. Prosecutors said text messages between Carter and another police officer showed that the shooting was planned. The elk was a fixture in the neighborhood, and its killing inspired marches, vigils, a tribute song and plans for a memorial.
Carter was convicted of nine charges, including three felonies: forgery, tampering with evidence and trying to influence a public official, all of which carried a sentence of up to six years in jail. Instead, despite the premeditated killing, the lying and the evidence tampering, Carter received only probation, and no jail time. His accomplice copped a plea for the same crimes, resulting in all of sixty days of home detention and probation. Even those convictions took twenty months to take place. Both cops did lose their jobs over it all.
Meanwhile, in places like the spotlighted Ferguson, Missouri, but actually across the United States, cops are killing citizens. Marches, vigils, tribute songs and plans for a memorial are a regular occurrence among the largely African-American communities where the killings take place. Sadly, the whole thing has taken on the appearance of a set-piece: a young African-American man is stopped by police for a minor offense (or no apparent offense.) In the course of the stop, he either “resists,” tries to “flee,” “appeared to have a weapon (when there was none), or “went for the officer’s weapon.”
In one recent case, the cops claim a young African-American man shot himself while handcuffed, all inside a police car. The cops responding to reports of a fight had stopped the victim, age 22, who was walking with a friend. Deputies found marijuana in the man’s pocket and that was that. The investigation into that death is ongoing, now several months in. The autopsy showed the fatal bullet entered the young man from the front, though his hands were cuffed behind him.
It is not just violence against African-American males; an Oklahoma cop has been charged with sixteen counts including first-degree rape and sexual battery after being accused of assaulting at least eight African-American women while on patrol.
In the generic cases, once detained, the young African-American man loses the status of human and becomes a dangerous suspect. He then is eligible to be beaten, tased or more and more often, just killed in the street. If no one was around to videotape the incident, it usually goes away, played for shock value that night on the local news, with a perfunctory police denial and an empty promise to investigate.
After a video surfaces, the media may pick up the story again for awhile (can’t pass up a lede that includes a violent video) and that long-delayed investigation is again mentioned. It tends to take a long, long time to complete, typically about as long as the public’s attention span, and the officer is usually found to have acted “appropriately.” The community is urged to move on, and it does, more cynical, more full of hate, but more on the road to reluctant acceptance that cops these days can pretty much do what they want, as long as the victim is a young African-American and not a beloved elk for God’s sake.
Nydia Tisdale is a citizen journalist in Georgia. She does not get paid for her work, but instead sees it as a civic duty to record politicians and the political process, and then upload those videos to YouTube. What she does is in large part what democracy is all about– involved, informed citizens exercising their rights under the First Amendment.
Not in Georgia.
Tisdale’s day began with a speech by state Insurance Commissioner Ralph Hudgens, who in his talk described the debate performance of a Democratic rival as lousy enough that “I thought I was going to absolutely puke.”
The crowd was laughing at the insult when Hudgens interrupted, looking down from the podium at Tisdale, seated near the state’s governor. Hudgens said “I don’t know why you’re videotaping.” Another pol, a local attorney and former GOP chairman, and one of the event’s organizers, demanded Tisdale stop videotaping. She refused. The cops were called to arrest and remove her.
Yes, it got worse.
At some point, with Tisdale loudly stating her rights were being violated, one of the arresting cops allegedly pressed his groin into Tisdale’s backside, bending her over a counter, because that’s how it’s done in Georgia. Tisdale would eventually be charged with trespassing, a misdemeanor, and obstructing an officer “by elbowing him in the right cheek area and kicking him in the right shin.”
Linda Clary Umberger, chairwoman of the Dawson County GOP, followed the citizen journalist and the officer to an outbuilding. “I watched as a woman was bent over the counter on her face, with an officer over her,” Umberger said. “If I had been her, I would have elbowed him in the face, too. “I was so upset at how they handled it – I walked out.”
The state governor apparently sat in silence while the violation of civil rights took place in front of him. Because that’s how it’s done in Georgia.
“Let me be possibly politically incorrect here a second,” a later speaker, the state’s attorney general finally told the crowd. “If we stand for anything as a party, what are we afraid of with the lady having a camera, filming us? What are we saying here that shouldn’t be on film?
“What message are we sending? That because it’s private property, they shouldn’t be filming? What is the harm? Who’s the winner in the long run? Not a good move. The harm that this poses is far greater than her filming us. What are we hiding? If we are telling you why we are running and what we stand for, what are we hiding?”
Georgia still isn’t done harassing Tisdale.
Though she was released on bond, her camera, supposedly seized as “evidence,” remains locked up, because that’s how it’s done in Georgia. “I can’t work without it,” she said.
This is not Tisdale’s first time to run into unfair practices in Georgia. In 2012, the mayor of Cumming, Georgia, ejected Tisdale from an open city council meeting simply for videotaping the proceedings. A judge later signed an order laying a $12,000 fine on the city and mayor for violating the state’s open meetings law, never mind the Constitution of the United States, assuming that document still applies in Georgia.
I did have dinner with Dr. Morris Berman, and that made up for a lot of missed opportunities elsewhere. Dr. Berman, for those who don’t know, runs the blog Dark Ages America. Berman (pictured, left, perhaps not the best photo either of us has ever taken, but then again, the raw material is what it is) also wrote three books that to me are crucial to understanding the changes in America over the past couple of decades: The Twilight of American Culture, Dark Ages America: The Final Phase of Empire and Why America Failed: The Roots of Imperial Decline.
The titles tell the tale, and Berman’s blog is equally dark and straightforward. I’ve written more about Berman’s work here.
Dr. Berman gave a talk at Washington and Lee University in Virginia on post-9/11 America. As you might imagine, his survey, and, more significantly, his predictions, were of great concern.
Central was the notion that Americans have become enveloped in their own myth, what some call “American Exceptionalism,” to the point where critical thinking, reflection and debate are no longer possible among us. Anyone who tries to engage on America thoughtfully is either ignored, shunned or dismissed as a traitor (it is thus not surprising that under the Obama Administration whistleblowers are punished with the Espionage Act.) Replacing reflection in America is cheerleading, the endless pronouncements of who is Number One (as if anyone was asking outside our borders) and of course the citing of our exceptionalism as justification for everything from the destruction of the Native Americans to plans for the bombing of Syria.
Our present days are defined, according to Berman, by endless war and the completion of our police state. Is it not odd that the only country anyone can claim that won WWII has somehow seen fit to engage in continuous conflict ever since? Following a very brief respite between the Cold War ending and the convenience of 9/11 kicking off the Global War on Terror, America has now firmly set itself on course for endless war. The elements are all in place, primarily an enemy defined more by a tactic (“terrorism”) than anything else. Such an “enemy” can never really be defeated, and that indeed is the point.
The police state in America, always bubbling below the surface, with zit-like bursts during the J. Edgar Hoover years and the 1968 Chicago police brutality, now is in place. Cops regularly exercise “frontier justice” on our streets, gunning down the guilty and the innocent alike in what the media rushes to call righteous shoots. Police departments across the U.S. are equipped with the weapons of war, everything from armored vehicles in suburbia to drones soon everywhere. Things like “stop and frisk” in New York City criminalize everyone, with particular attention to race.
But worst of all is the realization that the power of government, spurred by surveillance tech undreamed of by the SS and the Stasi, has grown in power such that Americans can be denied jobs, travel and life itself based on their names being put by anonymous officials on secret lists. Indeed, the president can now indefinitely imprison Americans with the stroke of a pen, or choose to simply have them killed as they stand at the push of a Predator drone button. Imagine such power in the hands of a terrorist, then look out the window and realize it’s us.
Overlaying all this is of course our society and economy’s descent into what Berman calls Neo Feudalism. A very few rich control everything, served by a class of workers kept dangling just over starvation, with the mass of poor available in the wings to replenish the ranks should those workers complain or demand food and lives.
America as anyone might recognize it based on the previous definition, will simply devolve out of existence.
Now that was a hell of a lecture. We had a great dinner afterwards. I shall also note that Dr. Berman outdrank me two-to-one while still telling better jokes.
The NSA decision came only hours after thousands of analysts, following similar threats at CIA, said they planned to quit and apply for jobs as Apple Geniuses and Best Buy Geek Squad workers.
Speaking on background, one disgruntled NSA employee said “Go ahead, throw me in jail for an Espionage Act violation, that would be better than doing this job. Right after 9/11, my boss said we had to start monitoring all Americans’ electronic communications to find terrorists. So we did, plugging into Google for tens of thousands of personnel at NSA, and those two interns we assigned to Bing. At first we thought it was an anomaly that 64 percent of all Internet traffic was flowing to ‘BarelyLegalCheerleaders.com’ but the numbers tracked. Most of the rest of the web was shopping during work hours.”
“And is all you talk about on your cells where you are and what you are doing at that second? Where was the ‘Mohammed, now we blow up the bridge and avenge the brothers’ stuff? No, instead it was 24/7 ‘I’m, yeah, at the mall. I might get an Orange Julius. LOL.’ You people even pronounce the term ‘LOL’ out loud as ‘lull’ as if it was a real word. Do you know what it’s like to listen to that all day? I’d rather clean the toilets at NSA but that job was already filled by some guy named Mohammed who didn’t even have a Facebook.”
“Hacking into the TOR network was also a disappointment. We expected dirty bomb recipes and blueprints of government buildings being passed around, but instead it was all selfies from ComiCon, Hunger Games fan fiction, and terabytes of cat videos pumped out of Russia by Ed Snowden. That guy really has some free time since blowing the whistle on the NSA. Hah, and now we’re getting out of the domestic spying mission and the dude’s still trying to get NewEgg to ship to a Moscow address. Now that’s a proper LOL.”
“Still we didn’t give up. Thinking all this Internet wastage was some sort of elaborate al Qaeda spoof, we really drilled down. Our conclusion as briefed to the White House: What the hell is wrong with these people? They spend all day looking at the most disgusting images ever created by humankind, really, really sick stuff. Even the jihadis we were trying to blackmail for looking at porn mostly stayed on meh celebrity bikini sites. The people assigned to the American division now all have PTSD and are in desensitization therapy. NSA even had to create a classified commendation medal to award them just to limit potential workplace-violence and OSHA lawsuits.”
After a series of late-night meetings between worker reps from NSA and CIA, it was decided to threaten a mass walk-off if high-level action was not taken.
“Initially the brass were all whining about national security and no more 9/11’s, but then we showed them some of the actual websites you people spend your time looking at. And from work, too. During the day in Washington DC alone 98 percent of the web traffic is from .gov addresses. We see a bunch of those people trying to access The Intercept, Firedoglake and Wikileaks, get blocked by the firewalls, and then spend the next 45 minutes figuring out a way around the software to get to ‘BuffDudes.com’ for the next half hour.”
“After the bosses saw that, they immediately agreed to the changes requested. Hayden even entered the Cone of Silence and burped up his lunch. And you should see the garbage that guy looks at online for fun. I mean, we did. Whatever.”
“So,” stated the official NSA spokesperson on background, “until you morons clean up your filthy minds and start planning terrorist stuff online, we will no longer be able to afford the human cost of spying on you. Heck, even if al Qaeda blew up Chicago, about two-thirds of you wouldn’t even notice as long as YouTube stayed online.”
A spokesperson for the Department of Homeland Security stated her agency would continue to monitor every bit of web traffic, claiming the staff could not get enough of this stuff, and that many airport screeners had volunteered free overtime.
Show of hands: anybody out there who heard much of the Yazidi in Iraq before a day or two ago? Because our president is going to re-engage in combat in Iraq to save them. Airstrikes are now authorized!
Save Our Yazidi
Once upon a time placing America’s service people in harm’s way, spending America’s money and laying America’s credibility on the line required at least the pretext that some national interest was at stake. Not any more. Anytime some group we don’t like threatens a group we could care not so much about, America must act to save a proud people, stop a humanitarian crisis, take down a brutal leader, put an end to genocide, whatever will briefly engage the sodden minds of the public between innings and spin up some new war fever. Some of these crisis’ get a brief moment in the #media (Save our girls!), some fizzle and fade (The Syrian people!) and some never even made sense (Somebody in the Ukraine!)
With some irony, “freeing the Iraqi people from an evil dictator” was one of the many justifications for the 2003 invasion.
And so this week, apparently it is the Yazidis in northern Iraq. These people consider themselves a distinct ethnic and religious group from the Kurds with whom they live in Iraq, though the Kurds consider them Kurdish. Their religion combines elements of Zoroastrianism with Sufi Islam. One of their important angels is represented on earth in peacock form, and was flung out of paradise for refusing to bow down to Adam. While the Yazidis see that as a sign of goodness, many Muslims view the figure as a fallen angel and regard the Yazidis as devil-worshippers. Fun Facts: the Yadzidi don’t eat lettuce, either, and also boast a long tradition of kidnapping their wives. The photo above shows them slaughtering a sheep, which they do eat.
Between 10,000 and 40,000 civilians (kind of a big spread of an estimate given how important these people are now to the U.S.) are currently stranded on Mount Sinjar in Northern Iraq without food and water, having been driven out of town by ISIS earlier this week.
So, in response to this humanitarian crisis, or this genocide as the New Yorker called it, Obama’s answer is pretty much the same answer (the only answer?) to any unfolding world event, more U.S. military intervention.
With no apparent irony, the White House spokesperson, surnamed Earnest (honestly, Orwell must be laughing in his grave) said on the same day “We can’t solve these problems for them. These problems can only be solved with Iraqi political solutions.”
Obama also has said U.S. airstrikes on Iraq aim to protect U.S. military advisers in Iraq who one guesses are not part of that political solution by definition.
I feel for anyone suffering, and I have no doubt the Yazidis are suffering. But as we start bombing things in Iraq again, let’s invite Obama to answer a few questions; White House journalists, pens at the ready please:
— Since this is happening in Iraq, and the U.S. spent $25 billion to train the Iraqi Army and sold it some serious weaponry, why isn’t it the Iraqis who will be doing any needed bombing? Is it because they are incompetent, or is it because the Baghdad government is either afraid to operate in Kurdish territory and/or wholly unconcerned what the hell happens up there?
Yep, might be those things. The Yazidis have long complained that neither Iraq’s Arabs nor Kurds protect them. In 2007, in what remains one of the most lethal attacks during the American Occupation, suicide bombers driving trucks packed with explosives attacked a Yazidi village in northwestern Iraq, killing almost 800 people.
— At the same time, since this is happening in defacto Kurdistan, and the U.S. has spent billions there since 1991 and supplied it some serious weaponry, why isn’t it the Kurds who will be doing any needed bombing to protect those they consider their own people? Hmm, just an idea, but the U.S. has recently imposed an economic oil embargo on Kurds to force them to stay with Iraq and they might be unhappy with American ‘stuff right now.
— Outside Kurdistan/Iraq, the other major Yazidi population centers are in Turkey and Iran. So why aren’t they doing any needed bombing?
— If indeed this Yazidi issue is a genocide, why isn’t the U.S. seeking UN action or sanction? The UN has, after all, started safely extracting small number of Yazidis. Could anyone help with that?
— If indeed this Yazidi issue is a genocide, why aren’t any of America’s allies jumping in to assist in any needed bombing? Seriously, if all this is really so important, how come it is just the U.S. involved, always?
— While saving the Yazidis is the stated goal, in fact any U.S. airstrikes are technically and officially acts of war on behalf of the Government of Iraq. And we’re also cool with that, yes?
— And c’mon, isn’t this just a cynical excuse to tug on some American heartstrings, crank up the war fever and get us back into the Iraq war? ‘Cause even if that’s not the intention, it is a likely result.
— And Obama, we’re gonna be cool announcing the loss of American life, again, in Iraq, this time to save the Yazidi? ‘Cause even though there are supposedly no boots on the ground, there is no way you are going to drop bombs near civilians you are trying to protect without Special Forces laying their boots on the ground to guide in the airstrikes. We are not Israelis, after all.
An Exceptional Nation
Many examples of extraterritoriality grow out of America’s archipelago of military bases around the world, where Status of Forces Agreements (SOFA) allow service members exemption from local laws, even when they commit crimes against host country people. The U.S. also stations Customs and Border Patrol agents in other nations, denying boarding on U.S.-bound flights from Canada, for example, to Canadian citizens otherwise still standing in their own country. Imagine the outcry in America if the Chinese were to establish military bases in Florida exempt from U.S. law, or if the Russians choose which Americans could fly out of Kansas City Airport. Never mind drone strikes, bombings, deployment of Special Forces, invasions and CIA-sponsored coups.
The snowballing NSA revelations have already severely damaged U.S. credibility and relationships around the world; nations remain shocked at the impunity with which America dug into their private lives. NSA spying has also cost American tech firms $180 billion in lost revenues, as “We’re not an American company” becomes a sales point.
A New Level
An American court has just taken things to a new level of extraterritorial offensiveness by requiring Microsoft to turn over to the U.S. government emails it holds on its servers. But in this case, those servers are located in Ireland, a European Union nation with its own privacy laws. Those laws are apparently of no real concern to the United States.
In a July 31 ruling upholding a lower court decision, U.S. Magistrate Judge James Francis in New York ruled that an American search warrant can be applied outside the country and served on a foreign company if that company has some business connection to an American corporation. The ruling makes all data in the world subject to a U.S. court, assuming some nexus to an American entity can be found. The nexus question is important; U.S. law holds that a company doing business in the U.S., say Malaysian Airlines, can be sued in the U.S. for some event that occurred abroad, such as an air crash in the Ukraine. The court ruling could in theory require Credit Suisse to open its servers in Zurich to the U.S. government simply because they have an office in Manhattan.
In the current case, the theory was that because Microsoft owned and controlled a foreign subsidiary company based in Ireland, any data stored in that overseas office or its data centers fell within (virtual) U.S. territory. This exposes massive amounts of foreign cloud-stored data, including emails and web searches, to American law enforcement working through an American court system that has been compliant in satisfying its needs post-9/11.
Rules are For Fools
The Judge went further is his decision, claiming official channels between countries that currently allow for cross-border law enforcement operations, called mutual legal assistance treaties (MLATs), are “generally… slow and laborious, as it requires the cooperation of two governments and one of those governments may not prioritize the case as highly as the other.” The judge added: “The burden on the government would be substantial, and law enforcement efforts would be seriously impeded.”
MLATs, the system that has been in place for many, many years prior to this week’s court ruling, are formal treaties whereby countries agree to share law enforcement information when it is to the benefit of both sides. They are subject to transparency and scrutiny, court review and have numerous steps built in to protect the rights of the accused. An example of an MLAT’s typical use might be a cross-border investigation into an alleged narco trafficker doing bad things in both nations. MLAT’s are usually administered abroad through the FBI’s Legal Attache stationed at the U.S. Embassy.
EU Data Laws
The American court’s ruling, allowing the United States to simply demand Microsoft’s data from Ireland for whatever purpose it may decide to use it, is a big, big deal. European information law is very strict. Data held by a company in Europe is considered to ultimately belongs to the citizen who generated it. A citizen can request access to his or her own data, and when it’s no longer needed, it must be deleted.
In the U.S., data is considered the property of the tech company that has its hands on it at the moment. So, in America, your Facebook posts and Instagram pictures don’t really belong to you, and you can’t block those companies from giving them to the government, or selling them to a third party for that matter.
Yet the most amazing thing about the judge’s ruling is its sheer audacity. In the immediate wake of the revelations that the NSA has been stealing Europe’s data, the judge has ruled that it is in fact now legal for the U.S. government to simply demand that data.
Microsoft to Appeal
In hopes of salvaging its business in Europe, Microsoft is appealing the decision. http://publicpolicy.verizon.com/blog/entry/verizon-files-amicus-brief-in-support-of-microsoft Verizon, Apple, AT&T, and Cisco, despite handing over their data to the NSA domestically willy-nilly, are supporting Microsoft in its efforts to block the European grabs.
In its appeal, Microsoft summed up the issue concisely:
A U.S. prosecutor cannot obtain a U.S. warrant to search someone’s home located in another country, just as another country’s prosecutor cannot obtain a court order in her home country to conduct a search in the United States. We think the same rules should apply in the on line world, but the government disagrees.
A new report by the Urban Institute and Encore Capital Group’s Consumer Credit Research Institute shows 77 million Americans– 35 percent of those with files at a major credit bureau– have a debt in collection.
Nevada has the worst record, with 47 percent of consumers with a credit file showing a debt in collections. In twelve other states, including Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, New Mexico, North Carolina, South Carolina, Texas, West Virginia as well as the District of Columbia, more than 40 percent of residents with a credit file have a bill in collections. In some smaller areas, the in-collection number is as high as 61 percent.
The report also shows that 1 out of 20 Americans hold debt that is “past due,” i.e., more than one month delinquent, though not yet in the collection process. Collection usually kicks in after 180 days past due.
Meanwhile, about 22 million Americans make so little money that they do not have credit files.
Poverty is Profitable
But as you can expect, there is always someone profiting from poverty.
For example, in another area of debt, writing checks that exceed the amount in an account (bouncing a check), often in hopes of creating faux credit planning on money to flow in before the check is actually cashed, American banks collect $30 billion a year in overdraft fees.
Collection companies can be seen as a great investment. The companies buy debt cheap and collect high. For example, Bank A itself has no interest in chasing a person for, as an example, a $1000 overdue payment. That’s not the bank’s core business, banking is. So they sell it to a collections company for say 10 percent, or $100. If the company can get back from the consumer anything more than the $100, that’s profit. It can be a lot of profit– one hyper-successful company boasts of a 239% return. A more typical return on investment for a collections company is 20 percent, a nice profit in itself.
In 2010 agencies collected about $40 billion from consumers. Business seems good: there are 4,100 debt collection agencies in the United States, employing nearly 450,000 people, and the industry expects to grow by 23 percent over the next three years. The Association of Credit and Collection Professionals, the industry’s largest trade association, spent more than $660,000 on Congressional lobbying over three years.
So Stop Spending. You Don’t Need that Big Screen
The average American holds $15,000 in debt, about half of that on credit cards (though others put the credit card number at about $4000.) But more significantly, the national averages for mortgage debt are $154,365 and for student loans, $33,607.
A common statement at this point regarding those credit cards is “So stop buying things you can’t afford, especially with high interest rates. Duh.” While there are no doubt people who misuse their credit to buy frivolous things, credit cards are to many in the middle class what pay day loans and pawn shops are to the poor: easy to access money for daily needs when there are no alternatives.
However, according to an analysis of spending from First Data, a major payment processing company, Americans increasingly used credit to purchase food and other everyday necessities. “During the month studied we saw consumers reducing the growth of their discretionary spending at retail merchants and increasingly resorting to credit for necessities,” said a statement. Spending in clothing stores, restaurants and bars declined, while credit spending at general merchandise stores, including value retailers and discount stores, increased.
BONUS: Some 46 million Americans receive benefits from the Supplemental Nutritional Assistance Program, what food stamps are now called. Hmmm… More than 1 out of 3 Americans are indebted, and about 1 out of 6 are dependant on the government to eat. Why, you’d almost think that was a strategy of control or something. But, naw, couldn’t be.
I am quite pleased to have joined the Advisory Board of ExposeFacts.org.
The group’s message is clear: encourage more government officials to blow the whistle. As said on their website, “ExposeFacts.org represents a new approach for encouraging whistleblowers to disclose information that citizens need to make truly informed decisions in a democracy. From the outset, our message is clear: “Whistleblowers Welcome at ExposeFacts.org.”
I’m sort of amazed I fit in alongside the others working with ExposeFacts: Barbara Ehrenreich, Dan Ellsberg, Tom Drake, Jesselyn Radack, Michael Ratner, Matt Hoh, Coleen Rowley, Ann Wright and Ray McGovern. So there’s yer humble brag for today.
I am also quite pleased that half a block from the State Department in Washington, at a bus stop used by America’s diplomats, ExposeFacts erected its first outdoor advertisement encouraging government employees to blow the whistle (photo above; that’s Matt Hoh there, not me). The ad shows Pentagon Papers whistleblower Daniel Ellsberg alongside the words “Don’t do what I did. Don’t wait until a new war has started, don’t wait until thousands more have died, before you tell the truth with documents that reveal lies or crimes or internal projections of costs and dangers. You might save a war’s worth of lives.”
ExposeFacts will erect more such ads at other prominent locations in Washington and beyond. As an advisory board member, I’m glad to report that outreach to potential whistleblowers is just getting started.
(For those new to the blog, I am a State Department whistleblower, so this all resonates with me personally as well as a concerned American. Learn more in my book We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (American Empire Project))
Not that America has become a divided, classist society or anything. Oh wait, it has.
New York City approved plans for a new 33-story luxury high-rise at 40 Riverside Drive on the Upper West Side of Manhattan that will include a separate entrance for tenants in “affordable” housing, what some have called the “poor door.” The high-rise has both super-luxe units worth millions, and some affordable housing units. Rich residents come in the front door. Poor residents enter through the side door. The expensive units overlook the Hudson River waterfront. The affordable units are in a “building segment” that faces the street. “Affordable” folks cannot enter the rich side of the building and are prohibited from using any of the building’s amenities. The way the architecture was specifically designed, the two groups will never mingle.
Affordable Housing in a Luxury Building?
Why does such a luxury building have affordable housing units in the first place? Well, so the rich can manipulate New York’s housing laws for their own benefit.
Including some affordable housing units in your new construction buys you two distinct advantages in New York. The first is that the developer is allowed to build a much taller building (and thus having more apartments to sell), skirting zoning laws and claiming valuable “air rights” for the benefit of the poor, of course. The air rights the developer will claim are worth millions in crowded Manhattan. The benefits even apply if you build your luxury tower in one part of Manhattan and your affordable units “off site,” maybe in a nasty part of town.
A developer can also qualify for the program by building condos on “areas of Manhattan of underutilized or unused land,” wherever those may be on some of the most densely populated land in the world.
The biggest advantage of including the affordable units in a luxury building is the massive tax breaks all residents share. New York waives or significantly lowers property taxes, meaning the rich, who need never see or interact with their poor neighbors, make money off their presence. It’s all called the “Inclusionary Housing Program,” or officially, the 421a program.
Here’s an example of how significant these tax breaks can be drawn from another super-luxury building in midtown Manhattan that included some affordable housing units. On an apartment purchased in 2007 for $1.5 million, the owner paid just $35 a month in property taxes. That creeped up to only $374 a month in 2011. When the exemption expires in 2018, the actual monthly tax bill will be an estimated $1,629. Note also any that real estate taxes paid are tax-deductible from one’s income.
Developers Getting Rich off the Poor
Another New York developer, who has built “poor door” buildings, summed things up quite succinctly:
No one ever said that the goal was full integration of these populations. So now you have politicians talking about that, saying how horrible those back doors are. I think it’s unfair to expect very high-income homeowners who paid a fortune to live in their building to have to be in the same boat as low-income renters, who are very fortunate to live in a new building in a great neighborhood.
The developers of the poor door building under discussion have done well with tax breaks. Five of the luxury firm’s other apartment towers cost the city $21.8 million in tax revenue in their first year alone. Overall, as of 2012, property tax abatements in New York City totaled $2.9 billion, about 20 percent of actual property tax collections in the city.
So what’s the problem, some say, with poor folks gettin’ some uptown housing from the swells? History: Separate but equal favors the separate but never the equal part. It did not work as a solution for racial inequality and it won’t work as a solution for economic inequality. Indeed, one wonders if the building caught fire which door the fire department would go through first?
And there you have it, another tidy example of how taxes and laws are rigged to favor the people who already have the most money. Go ahead, work as hard as you like; this game, friends, has already been decided.
You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted — about one-third of the text is missing — Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury, and executioner.
Due Process in Constitutional America
Looking back on the violations of justice that characterized British rule in pre-Constitutional America, it is easy to see the Founders’ intent in creating the Fifth Amendment. A government’s ability to inflict harm on its people, whether by taking their lives, imprisoning them, or confiscating their property, was to be checked by due process.
Due process is the only requirement of government that is stated twice in the Constitution, signaling its importance. The Fifth Amendment imposed the due process requirement on the federal government, while the Fourteenth Amendment did the same for the states. Both offer a crucial promise to the people that fair procedures will remain available to challenge government actions. The broader concept of due process goes all the way back to the thirteenth-century Magna Carta.
Due process, as refined over the years by the Supreme Court, came to take two forms in Constitutional America. The first was procedural due process: people threatened by government actions that might potentially take away life, liberty, or possessions would have the right to defend themselves from a power that sought, whether for good reasons or bad, to deprive them of something important. American citizens were guaranteed their proverbial “day in court.”
The second type, substantive due process, was codified in 1938 to protect those rights so fundamental that they are implicit in liberty itself, even when not spelled out explicitly in the Constitution. Had the concept been in place at the time, a ready example would have been slavery. Though not specifically prohibited by the Constitution, it was on its face an affront to democracy. No court process could possibly have made slavery fair. The same held, for instance, for the “right” to an education, to have children, and so forth. Substantive due process is often invoked by supporters of same-sex unions, who assert that there is a fundamental right to marry. The meaning is crystal clear: there is an inherent, moral sense of “due process” applicable to government actions against any citizen and it cannot be done away with legally. Any law that attempts to interfere with such rights is inherently unconstitutional.
On September 30, 2011, on the order of the president, a U.S. drone fired a missile in Yemen and killed Anwar al-Awlaki. A Northern Virginia Islamic cleric, in the aftermath of 9/11 he had been invited to lunch at the Pentagon as part of a program to create ties to Muslim moderates. After he moved to Yemen a few years later, the U.S. accused him of working with al-Qaeda as a propagandist who may have played an online role in persuading others to join the cause. (He was allegedly linked to the “Underwear Bomber” and the Fort Hood shooter.) However, no one has ever accused him of pulling a trigger or setting off a bomb, deeds that might, in court, rise to the level of a capital crime. Al-Awlaki held a set of beliefs and talked about them. For that he was executed without trial.
In March 2012, Attorney General Eric Holder made quite a remarkable statement about the al-Awlaki killing. He claimed “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” In other words, according to the top legal authority in the nation, a White House review was due process enough when it came to an American citizen with al-Qaeda sympathies. In this, though it was unknown at the time, Holder was essentially quoting a secret white paper on that killing produced by the Office of Legal Counsel, located in the department he headed.
In June 2014, after a long court battle to shield the underlying legal basis for the killing, the Obama administration finally released a redacted version of that classified 2010 white paper. In the end, it did so only because without its release key senators were reluctant to confirm the memo’s author, David Barron, who had been nominated by President Obama to serve on the First Circuit Court of Appeals. (Once it was made public, Barron was indeed confirmed.)
The importance of the white paper to understanding Post-Constitutional America cannot be understated. Despite all the unconstitutional actions taken by the government since 9/11 — including striking violations of the Fourth Amendment — this paper is to date the only glimpse we have of the kind of thinking that has gone into Washington’s violations of the Bill of Rights.
Here’s the terrifying part: ostensibly the result of some of the best legal thinking available to the White House on a issue that couldn’t be more basic to the American system, it wouldn’t get a first-year law student a C-. The arguments are almost bizarrely puerile in a document that is a visibly shaky attempt to provide cover for a pre-determined premise. No wonder the administration fought its release for so long. Its officials were, undoubtedly, ashamed of it. Let’s drill down.
Death by Pen
For the killing of an American citizen to be legal, the document claims, you need one essential thing: “an informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack against the United States.” In addition, capture must be found to be unfeasible and the act of killing must follow the existing laws of war, which means drones are okay but poison gas is a no-no.
The rest of the justification in the white paper flows from that premise in a perverse chain of ankle-bone-connected-to-the-leg-bone logic: the president has the obligation to protect America; al-Qaeda is a threat; Congress authorized war against it; and being in al-Qaeda is more relevant than citizenship (or as the document crudely puts it, “citizenship does not immunize the target”). International borders and the sovereignty of other nations are not issues if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.” Basically, it’s all an extension of the idea of self-defense, with more than a dash of convenience shaken in.
When the white paper addresses the Fifth Amendment’s right to due process, and to a lesser extent, the Fourth Amendment’s right against unwarranted seizure (that is, the taking of a life), it dismisses them via the “balancing test.” Not exactly bedrock constitutional material, it works this way: in situations where the government’s interest overshadows an individual’s interest, and the individual’s interest isn’t that big a deal to begin with, and a mistake by the government can later be undone, the full due process clause of the Fifth Amendment need not come into play.
The three-point balancing test cited by the white paper as conclusive enough to justify the extrajudicial killing of an American comes from a 1976 Supreme Court case, Mathews v. Eldridge. There, the court held that an individual denied Social Security benefits had a right to some form of due process, but not necessarily full-blown hearings. In Anwar al-Awlaki’s case, this translates into some truly dubious logic: the government’s interest in protecting Americans overshadows one citizen’s interest in staying alive. Somehow, the desire to stay alive doesn’t count for much because al-Awlaki belonged to al-Qaeda and was in the backlands of Yemen, which meant that he was not conveniently available by capture for a trial date. Admittedly, there’s no undoing death in a drone killing, but so what.
The white paper also draws heavily on the use of the balancing test in the case of Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan Yaser Hamdi, a Saudi-American citizen, and sought to detain him indefinitely without trial. After a long legal battle that went to the Supreme Court, the balance test was applied to limit — but not fully do away with — due process. Despite limiting Hamdi’s rights in service to the war on terror, the court was clear: Yaser Hamdi should have a meaningful opportunity to challenge his status. Fearing that giving him his moment in court would expose the brutal reality of his capture, interrogation, and detention, the U.S. government instead released him to Saudi Arabia.
Hamdi’s case dealt with procedural questions, such as whether he should be allowed a trial and if so, under what conditions. As with Mathews v. Eldridge, Hamdi never focused on issues of life and death. Cases can be (re)tried, prisoners released, property returned. Dead is dead — in the case of al-Awlaki that applies to the drone’s target, the balance test, and the Fifth Amendment itself.
What Do Words Mean in Post-Constitutional America?
Having dispensed with significant constitutional issues thanks to some exceedingly dubious logic, the white paper returns to its basic premise: that a kill is legal when that “informed, high-level official” determines that an “imminent threat” to the country is involved. In other words, if the president is convinced, based on whatever proof is provided, he can order an American citizen killed. The white paper doesn’t commit itself on how far down the chain of “high-level officials” kill authority can be delegated. Could the Secretary of the Interior, for instance, issue such an order? He or she is, after all, eighth in the line of succession should the president die in office.
The white paper does, however, spend a fair amount of time explaining how the dictionary definitions of “imminent” and “immediate” do not apply. For kill purposes, it says, the U.S. must have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” However, the paper goes on to explain that “immediate” can include a situation like al-Awlaki’s in which a person may or may not have been engaged in planning actual attacks that might not be launched for years, or perhaps ever. The paper claims that, since al-Qaeda would prefer to attack the U.S. on a continual basis, any planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack that requires sending in the drones.
And if, as perhaps the author of the paper suspected, that isn’t really enough when faced with the bluntness of the Constitution on the issue, the white paper haphazardly draws on the public authority justification. According to this legal concept, public authorities can, in rare circumstances, violate the law — a cop can justifiably kill a bad guy under certain conditions. By extension, the white paper argues, the government of the United States can drone-kill a citizen who is allegedly a member of al-Qaeda. The white paper conveniently doesn’t mention that police shootings are subject to judicial review, and those who commit such unlawful acts can face punishment. The laws behind such a review are unclassified and public, not the rationed fodder of a redacted white paper.
For the final nail in the coffin of some American citizen, the white paper concludes that, Fifth Amendment violation or not, its arguments cannot be challenged in court. In cases of “foreign policy,” courts have traditionally almost always refused to intervene, holding that they are in the realm of the executive branch in consultation, as required, with Congress. Killing an American abroad, the white paper insists, is a foreign policy act and so none of any courts’ business.
Substantive due process legally applies only to legislation, and it is highly unlikely that the Obama administration will seek legislative sanction for its kill process. So it is in one sense not surprising that the white paper makes no mention of it. However, looking at what we can read of that redacted document through the broader lens of substantive due process does tell us a lot about Post-Constitutional America. In Constitutional America, the idea was that a citizen’s right to life and the due process that went with it was essentially an ultimate principle that trumped all others, no matter how bad or evil that person might be. What is important in the white paper is not so much what is there, but what is missing: a fundamental sense of justness.
As medieval kings invoked church sanction to justify evil deeds, so in our modern world lawyers are mobilized to transform government actions that spit in the face of substantive due process — torture, indefinite detention without charge, murder — into something “legal.” Torture morphs into acceptable enhanced interrogation techniques, indefinite detention acquires a quasi-legal stance with the faux-justice of military tribunals, and the convenient murder of a citizen is turned into an act of “self-defense.” However unpalatable Anwar al-Awlaki’s words passed on via the Internet may have been, they would be unlikely to constitute a capital crime in a U.S. court. His killing violated the Fifth Amendment both procedurally and substantively.
Despite its gravity, once the white paper was pried loose from the White House few seemed to care what it said. Even the New York Times, which had fought in court alongside the ACLU to have it released, could only bring itself to editorialize mildly that the document offered “little confidence that the lethal action was taken with real care” and suggest that the rubber-stamp secret Foreign Intelligence Surveillance Court be involved in future kill orders. The ACLU’s comments focused mostly on the need for more documentation on the kills. Meanwhile, a majority of Americans, 52%, approve of drone strikes, likely including the one on Anwar al-Awlaki.
The Kind of Country We Live In
We have fallen from a high place. Dark things have been done. Imagine, pre-9/11, the uproar if we had learned that the first President Bush had directed the NSA to sweep up all America’s communications without warrant, or if Bill Clinton had created a secret framework to kill American citizens without trial. Yet such actions over the course of two administrations are now accepted as almost routine, and entangled in platitudes falsely framing the debate as one between “security” and “freedom.” I suspect that, if they could bring themselves to a moment of genuine honesty, the government officials involved in creating Post-Constitutional America would say that they really never imagined it would be so easy.
In one sense, America the Homeland has become the most significant battleground in the war on terror. No, not in the numbers of those killed or maimed, but in the broad totality of what has been lost to us for no gain. It is worth remembering that, in pre-Constitutional America, a powerful executive — the king — ruled with indifference to the people. With the Constitution, we became a nation, in spirit if not always in practice, based on a common set of values, our Bill of Rights. When you take that away, we here in Post-Constitutional America are just a trailer park of strangers.