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.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Parallel Construction is a technique used by law enforcement to hide the fact that evidence in a criminal case originated with the NSA. In its simplest form, the NSA collects information showing say a Mr. Anderson committed a crime. This happens most commonly in drug cases. The conclusive information is passed to the Drug Enforcement Agency (DEA), who then works backwards from the conclusion to create an independent, “legal” body of evidence to use against Mr. Anderson.
Example: an NSA email intercept shows our Mr. Anderson received a Fedex package with drugs, which he hid under his bed. The DEA takes this info, and gets a search warrant for the Fedex data, which leads them to Mr. Anderson’s apartment. A new legal warrant authorizes a search, and agents “find” the drugs under the bed right where the NSA said they were in the first place.
Some may call this little more than illegal evidence laundering.
Some Constitutional Background
The Fourth Amendment to the Constitution protects Americans against unreasonable and unwarranted searches. The Supreme Court has generally held that searches of, for example, someone’s home, require a warrant. That warrant can be issued only after law enforcement shows they have “probable cause.” That in turn has 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 NSA pulling information out of the cyberspace ether bypasses and thus violates the Fourth Amendment.
The NSA violations of the Fourth Amendment enable further DEA and other law enforcement violations of the Fifth Amendment, specifically the critical due process clause. The concept of due process dates back to the 13th century Magna Carta.
Specifically, the use of information obtained illegally and whose ultimate source is concealed from the accused violates procedural due process. This is the requirement that before any government actions to take away life, liberty or possessions, the persons affected have the right to defend themselves, to understand the evidence against them, and to question and call witnesses in rebuttal, one’s “day in court.” In short, procedural due process aims to protect individuals from the coercive power of government by ensuring that adjudication processes are fair and open.
DEA is blunt in a document released via FOIA as to how conveniently parallel construction violates these rights:
Our friends in the military and intelligence community never have to prove anything to the general public. They can act upon classified information without ever divulging their sources or methods to anyway [sic] outside their community.
Why Do This to Americans?
With exceptions, courts have held that evidence obtained illegally cannot be used in trial. So why bother to fight for an exception when, using NSA data surreptitiously, evidence can subsequently be obtained cleanly under a warrant, albeit a warrant issued by a court kept ignorant of the source of the underlying information. Another reason to use parallel construction is to hide the NSA’s role. Apart from the broader goal of not disclosing to the American people what their government is doing, blurring the trail back to the NSA gets around any courtroom attempts that require such data to be shared with the defense. And of course the defense can’t ask for something it does not know exists. Lastly, if defendants do not know the ultimate source of the information used to convict them, they cannot know to ask to review potential sources of exculpatory evidence– information that could reveal entrapment, mistakes or biased witnesses.
Needless to say, using information obtained already pre-packaged from the NSA makes DEA’s and other law enforcement agencies’ jobs much easier. They have to do little work on their own to gather the data needed to track down Americans they seek to prosecute. It’s all in the bag.
DEA as the Nexus
DEA seems to be the center of the NSA distribution network, as the program originally started as a way to bust foreign drug dealers before it metastasized into the currrent tool for broadly evading the Bill of Rights.
How widespread domestically is the practice of parallel construction? No one knows. It is known that the unit of the DEA that distributes the NSA information is called the Special Operations Division (SOD.) It partners with two dozen other agencies, including the FBI, CIA, Internal Revenue Service and the Department of Homeland Security. Once laundered of any NSA fingerprints, what those multiple agencies do with the data, and how far they themselves spread it to even more agencies, or to local law enforcement, is unknown.
Why it Matters
There have been complex questions raised about the hiding of NSA-obtained information used to convict Americans, leading to the Solictor General of the United States lying to the Supreme Court about how the Justice Department was not notifying defendants in situations when warrantless surveillance had led in turn to a wiretap order that produced evidence used in court. The Justice Department has taken to notifying some defendents that information obtained via warrantless survellience is being used against them, allowing for a likely Supreme Court challenge. The Justice Department has previously blocked Supreme Court challenges by hiding how information was obtained, thus denying the accused of “standing” in the Court’s eyes.
As part of the response to such government actions, organizations such as the Los Angeles County Bar Association are now offering for-continuing-education-credit tutorials to defense attorneys under titles such as “Criminal Prosecutions and Classified Information.”
A lot of attention Post-Snowden has been paid to what the NSA does– vacuum up emails, listen in on Skype chats and so forth. Too little attention has been devoted to what is done with the information NSA collects. The appetites of law enforcement agencies in Post-Constitutional America are bottomless, and the NSA holds terabytes of data to fill them.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
We were warned we might become this way.
In the 1928 case of Olmsted v. The United States, at issue before the Supreme Court was whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the defendant’s rights under the Fourth and Fifth Amendments. In a 5-4 decision, the Court held that rights were not violated and the evidence obtained without a warrant could be used.
In his dissent, Justice Louis Brandeis wrote:
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law…
Like Father, Like Son
In an era where Big Government acts in open contempt of the rule of law, killing its own citizens without due process, torturing its people, recklessly spying on them and taking away their right to free speech, it is little surprise that Small Government seeks to do the same. Petty is what petty does. Much of this all manifests itself in the militarization of our police coupled with their criminalization of everything.
Militarization of the Police
There are too many examples of violence for even a short list: a defendant killed by police at his own trial; a lengthy and detailed report that found the Albuquerque, New Mexico Police Department engages in the practice of excessive force, including deadly force, in violation of the Fourth Amendment; a false-postive drug test leading to a SWAT assault on an innocent family; a baby burned into a coma by a flash-bang grenade thrown by another SWAT team in another unnecessasry home raid; a woman sexually assaulted by a cop in a courthouse who then arrested her for reporting it; LA sheriffs beating a chained inmate; cops choking a non-resisting drunk into unconsciousness; police blindsiding a woman with a nightstick at basketball celebration; police killing a 93 year old woman in her own home; cops tasering and beating a deaf man trying to communicate with them in sign lanaguage and on and on.
Criminalization of Everything
Concurrent with the increasing acts of unwarranted violence by police against the citizens they are sworn to protect and serve are attempts to criminalize as much behavior as possible, whether it represents any threat to society at large (long sentences for minor marijuana possession) or is simply an excuse to bust heads (not dispersing immediately equating to resisting arrest.)
But here’s how it has morphed into even more, an assault on First Amendment rights. And even though the cops lost in some of the following cases, the pattern is too clear to ignore, too dark to high-five over a win.
Cops in multiple states– cases have been tried in Maryland, Florida, Tennessee, Missouri and Oregon– have arrested drivers for flashing their headlights. It is not uncommon for drivers to flash their lights at incoming traffic to warn of a police speed trap ahead. The result of the flashing is that incoming drivers slow down, precisely the real point of the law. Cops, however, claim the flashing lights are an interference with law enforcement.
In the most recent case, in Oregon, a judge did find that motorists flashing their headlights amounts to speech protected by the First Amendment, similar to when people honk their horns to welcome home the troops. “The citation was clearly given to punish the Defendant for that expression,” the judge wrote. “The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct.”
Videotaping the Police
Reaching back to the 1992 Rodney King beating in Los Angeles, police have been caught on camera in a seemingly-endless-string of beatings. The typical pattern is that before the video is shown, the beaten person is accused of resisting arrest and the cops claim the violence they visited on him was unfortunate, but necessary and appropriate. Then the video comes to light and the brutality is revealed.
So it is little surprise that the cops have tried to criminalize videotaping the cops. Evil only works well in the dark after all. A recent case in New Hampshire, however, may help forestall the dark a bit.
A woman was following a friend’s car to his house when an officer pulled him over. From about 30 feet away, after getting out of her car, the woman announced she was going to audio-record the police stop of her friend. The cops arrested her and charged her with wiretapping, along with disobeying a police officer, obstructing a government official, and unlawful interception of oral communications. Though the woman was never prosecuted, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights.
An appeals court sent the case back to trial. The cops settled for $57,000 (using taxpayer money to pay off the suit; small change really. In 2012 Boston paid a citizen $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his felony arrest for videotaping police roughing up a suspect) before the case when to full trial, allowing for a minor victory albeit at the cost of not having a court declare war on the abuse of a citizen’s First Amendment rights.
Another woman was not so successful. She was charged with using a mobile phone “hidden” in her purse to audio-record her own arrest. The cops charged her with wiretapping under Massachusetts law, which says people may record police officers only in public places, and only if the officers are aware that a recording is taking place.
The ACLU asserts “since 9/11, a disturbing pattern of innocent individuals being harassed by the police for taking still and video photographs in public places has emerged across the country.” ACLU has a long list of specific cases.
The ACLU also notes “Another disturbing trend is police officers and prosecutors using wiretapping statutes in certain states (such as Florida, Illinois, Maryland, Massachusetts, New Jersey and Pennsylvania) to arrest and prosecute those who attempt to record police activities using videocameras that include audio.”
Again in Massachusetts, a woman who videotaped a cop beating a motorist with a flashlight posted the video online. Afterwards, one of the cops caught at the scene filed criminal wiretapping charges against her, though she was never prosecuted.
There are many, many more examples of the criminalization of the First Amendment. Even when charges don’t stick, the act of being arrested, possibly mistreated, often serves the cops’ purpose.
Fish rot from the head they say, and as Justice Louis Brandeis tried to warn us some 80 years ago. When the federal government claims itself exempt from the Constitution, don’t be surprised when your local cops say the same.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Here’s a bit of history from another America: 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. Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now, in Post-Constitutional America.
The Fourth Amendment
A response to British King George’s excessive invasions of privacy in colonial America, the Fourth Amendment pulls no punches:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: Our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as “unreasonable” in our old constitutional world, but no more.
Here, then, are four ways that, in the name of American “security” and according to our government, the Fourth Amendment no longer really applies to our lives.
The Constitutional Borderline
Begin at America’s borders. Most people believe they are “in” the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.
Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the “border search.” The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally “reasonable” simply by virtue of where they take place. It’s a concept with a long history, enumerated by the First Congress in 1789.
Here’s the twist in the present era: The definition of “border” has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.
Those modest exceptions were all part of constitutional America. Today, once reasonable searches at the border have morphed into a vast “Constitution-free zone.” The “border” is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the U.S. population. In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitras — whose work focuses on national security issues in general and Edward Snowden in the particular — knows firsthand. Since 2006, almost every time Poitras has returned to the U.S., her plane has been met by government agents and her laptop and phone examined.
There are multiple similar high-profile cases (including those of a Wikileaks researcher and a Chelsea Manning supporter), but ordinary citizens are hardly exempt. Despite standing in an American airport, a pane of glass away from loved ones, you are not in the U.S. and have no Fourth Amendment rights. How many such airport searches are conducted in the aggregate is unknown. The best information we have comes from a FOIA request by the ACLU. It revealed that, in the 18-month period beginning in October 2008, more than 6,600 people, about half of them U.S. citizens, were subjected to electronic device searches at the border.
Still, reminding us that it’s possible to have a sense of humor on the road to hell, the CBP offers this undoubtedly inadvertent pun at its website: “It is not the intent of CBP to subject travelers to unwarranted scrutiny.” (emphasis added)
Making It All Constitutional In-House
Here’s another example of how definitions have been readjusted to serve the national security state’s overriding needs: The Department of Justice (DOJ) 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.
Some background: A warrant is court permission to search and seize something. As the Fourth Amendment makes clear, it must be specific: enter Thomas Anderson’s home and look for hacked software. Warrants can only be issued on “probable cause.” The Supreme Court defined probable cause as requiring a high standard of proof, or to quote its words, “a fair probability that contraband or evidence of a crime will be found in a particular place.”
A subpoena on the other hand is nothing more than a government order issued to a citizen or organization to do something, most typically to produce a document. Standards for issuing a subpoena are flexible, as most executive agencies can issue them on their own without interaction with a court. In such cases, there is no independent oversight.
The Department of Justice now claims that, under the Fourth Amendment, it can simply subpoena an Internet company like Facebook and demand that they look for and turn over all the records they have on our Mr. Anderson. Their explanation: The DOJ isn’t doing the searching, just demanding that another organization do it. As far as its lawyers are concerned, in such a situation, no warrant is needed. In addition, the Department of Justice believes it has the authority to subpoena multiple records, maybe even all the records Facebook has. Records on you? Some group of people including you? Everyone? We don’t know, as sources of data like Facebook and Google are prohibited from disclosing much about the information they hand over to the NSA or other government outfits about you.
It’s easy enough to miss the gravity of this in-house interpretation when it comes to the Fourth Amendment. If the FBI today came to your home and demanded access to your emails, it would require a warrant obtained from a court after a show of probable cause to get them. If, however, the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message you’ve ever sent without a warrant and it won’t constitute a “search.” The DOJ has continued this practice even though in 2010 a federal appeals court ruled that bulk warrantless access to email violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act similarly makes it clear that the Bureau’s agents don’t need warrants to access email in bulk when it’s pulled directly from Google, Yahoo, Microsoft, or other service providers.
How far can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the inspector general of the Department of Veterans Affairs (VA) issued a subpoena — no court involved — demanding that the Project On Government Oversight (POGO) turn over all information it has collected relating to abuses and mismanagement at VA medical facilities. POGO is a private, non-profit group, dedicated to assisting whistleblowers. The VA subpoena demands access to records sent via an encrypted website to POGO under a promise of anonymity, many from current or former VA employees.
Rather than seek to break the encryption surreptitiously and illegally to expose the whistleblowers, the government has taken a simpler, if unconstitutional route, by simply demanding the names and reports. POGO has refused to comply, setting up a legal confrontation. In the meantime, consider it just another sign of the direction the government is heading when it comes to the Fourth Amendment.
Technology and the Fourth Amendment
Some observers suggest that there is little new here. For example, the compiling of information on innocent Americans by J. Edgar Hoover’s low-tech FBI back in the 1960s has been well documented. Paper reports on activities, recordings of conversations, and photos of meetings and trysts, all secretly obtained, exposed the lives of civil rights leaders, popular musicians, and antiwar protesters. From 1956 to at least 1971, the government also wiretapped the calls and conversations of Americans under the Bureau’s counterintelligence program (COINTELPRO).
But those who look to such history of government illegality for a strange kind of nothing-new-under-the-sun reassurance have not grasped the impact of fast-developing technology. In scale, scope, and sheer efficiency, the systems now being employed inside the U.S. by the NSA and other intelligence agencies are something quite new and historically significant. Size matters.
To avoid such encroaching digitization would essentially mean withdrawing from society, not exactly an option for most Americans. More of life is now online — from banking to travel to social media. Where the NSA was once limited to traditional notions of communication — the written and spoken word — new possibilities for following you and intruding on your life in myriad ways are being created. The agency can, for instance, now collect images, photos, and video, and subject them to facial recognition technology that can increasingly put a name to a face. Such technology, employed today at casinos as well as in the secret world of the national security state, can pick out a face in a crowd and identify it, taking into account age, changes in facial hair, new glasses, hats, and the like.
An offshoot of facial recognition is the broader category of biometrics, the use of physical and biological traits unique to a person for identification. These can be anything from ordinary fingerprinting to cutting-edge DNA records and iris scans. (Biometrics is already big business and even has its own trade association in Washington.) One of the world’s largest known collections of biometric data is held by the Department of State. As of December 2009, its Consular Consolidated Database (CCD) contained more than 75 million photographs of Americans and foreigners and is growing at a rate of approximately 35,000 records per day. CCD also collects and stores indefinitely the fingerprints of all foreigners issued visas.
With ever more data available, the NSA and other agencies are creating ever more robust ways to store it. Such storage is cheap and bounteous, with few limits other than the availability of electricity and water to cool the electronics. Emerging tech will surely bypass many of the existing constraints to make holding more data longer even easier and cheaper. The old days of file cabinets, or later, clunky disk drives, are over in an era of mega-data storage warehouses.
The way data is aggregated is also changing fast. Where data was once kept in cabinets in separate offices, later in bureaucratically isolated, agency-by-agency digital islands, post-9/11 sharing mandates coupled with new technology have led to fusion databases. In these, information from such disparate sources as license plate readers, wiretaps, and records of library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can now be put into a single “file.”
Once you have the whole haystack, there’s still the problem of how to locate the needle. For this, emerging technologies grow ever more capable of analyzing Big Data. Some simple ones are even available to the public, like IBM’s Non-Obvious Relationship Awareness software (NORA). It can, for example, scan multiple databases, geolocation information, and social media friend lists and recognize relationships that may not be obvious at first glance. The software is fast and requires no human intervention. It runs 24/7/365/Forever.
Tools like NORA and its more sophisticated classified cousins are NSA’s solution to one of the last hurdles to knowing nearly everything: The need for human analysts to “connect the dots.” Skilled analysts take time to train, are prone to human error, and — given the quickly expanding supply of data — will always be in demand. Automated analysis also offers the NSA other advantages. Software doesn’t have a conscience and it can’t blow the whistle.
What does all this mean in terms of the Fourth Amendment? It’s simple: The technological and human factors that constrained the gathering and processing of data in the past are fast disappearing. Prior to these “advances,” even the most ill-intentioned government urges to intrude on and do away with the privacy of citizens were held in check by the possible. The techno-gloves are now off and the possible is increasingly whatever an official or bureaucrat wants to do. That means violations of the Fourth Amendment are held in check only by the goodwill of the government, which might have qualified as the ultimate nightmare of those who wrote the Constitution.
On this front, however, there are signs of hope that the Supreme Court may return to its check-and-balance role of the Constitutional era. One sign, directly addressing the Fourth Amendment, is this week’s unanimous decision that the police cannot search the contents of a cell phone without a warrant. (The court also recently issued a ruling determining that the procedures for challenging one’s inclusion on the government’s no-fly list are unconstitutional, another hopeful sign.)
Prior to the cell phone decision, law enforcement held that if someone was arrested for, say, a traffic violation, the police had the right to examine the full contents of his or her cell phone — call lists, photos, social media, contacts, whatever was on the device. Police traditionally have been able to search physical objects they find on an arrestee without a warrant on the grounds that such searches are for the protection of the officers.
In its new decision, however, the court acknowledged that cell phones represent far more than a “physical object.” The information they hold is a portrait of someone’s life like what’s in a closet at home or on a computer sitting on your desk. Searches of those locations almost always require a warrant.
Does this matter when talking about the NSA’s technological dragnet? Maybe. While the Supreme Court’s decision applies directly to street-level law enforcement, it does suggest an evolution within the court, a recognition of the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is now recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.
National Security Disclosures Under HIPPA
While the NSA’s electronic basket of violations of the Fourth Amendment were, pre-Snowden, meant to take place in utter secrecy, here’s a violation that sits in broad daylight: Since 2002, my doctor can disclose my medical records to the NSA without my permission or knowledge. So can yours.
Congress passed the Health Information Portability and Accountability Act (HIPPA) in 1996 “to assure that individuals’ health information is properly protected.” You likely signed a HIPPA agreement at your doctor’s office, granting access to your records. However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of those records for national security purposes. Specifically, the new version of this “privacy law” states: “We may also disclose your PHI [Personal Health Information] to authorized federal officials as necessary for national security and intelligence activities.” The text is embedded deep in your health care provider’s documentation. Look for it.
How does this work? We don’t know. Do the NSA or other agencies have ongoing access to the medical records of all Americans? Do they have to request specific ones? Do doctors have any choice in whose records to forward under what conditions? No one knows. My HMO, after much transferring of my calls, would ultimately only refer me back to the HIPPA text with a promise that they follow the law.
The Snowden revelations are often dismissed by people who wonder what they have to hide. (Who cares if the NSA sees my cute cat videos?) That’s why health care spying stands out. How much more invasive could it be than for your government to have unfettered access to such a potentially personal and private part of your life — something, by the way, that couldn’t have less to do with American “security” or combating terrorism.
Our health care providers, in direct confrontation with the Fourth Amendment, are now part of the metastasizing national security state. You’re right to be afraid, but for goodness sake, don’t discuss your fears with your doctor.
How the Unreasonable Becomes Reasonable
At this point, when it comes to national security matters, the Fourth Amendment has by any practical definition been done away with as a part of Post-Constitutional America. Whole books have been written just about Edward Snowden and more information about government spying regularly becomes available. We don’t lack for examples. Yet as the obviousness of what is being done becomes impossible to ignore and reassurances offered up by the president and others are shown to be lies, the government continues to spin the debate into false discussions about how to “balance” freedom versus security, to raise the specter of another 9/11 if spying is curtailed, and to fall back on that go-to “nothing to hide, nothing to fear” line.
In Post-Constitutional America, the old words that once defined our democracy are twisted in new ways, not discarded. Previously unreasonable searches become reasonable ones under new government interpretations of the Fourth Amendment. Traditional tools of law, like subpoenas and warrants, continue to exist even as they morph into monstrous new forms.
Americans are told (and often believe) that they retain rights they no longer have. Wait for the rhetoric that goes with the celebrations of our freedoms this July 4th. You won’t hear a lot about the NSA then, but you should. In pre-constitutional America the colonists knew that they were under the king’s thumb. In totalitarian states of the last century like the Soviet Union, people dealt with their lack of rights and privacy with grim humor and subtle protest. However, in America, ever exceptional, citizens passively watch their rights disappear in the service of dark ends, largely without protest and often while still celebrating a land that no longer exists.
America has entered its third great era: the post-constitutional one. In the first, in the colonial years, a unitary executive, the King of England, ruled without checks and balances, allowing no freedom of speech, due process, or privacy when it came to protecting his power.
In the second, the principles of the Enlightenment and an armed rebellion were used to push back the king’s abuses. The result was a new country and a new constitution with a Bill of Rights expressly meant to check the government’s power. Now, we are wading into the shallow waters of a third era, a time when that government is abandoning the basic ideas that saw our nation through centuries of challenges far more daunting than terrorism. Those ideas — enshrined in the Bill of Rights — are disarmingly concise. Think of them as the haiku of a genuine people’s government.
Deeper, darker waters lie ahead and we seem drawn down into them. For here there be monsters.
The Powers of a Police State Denied
America in its pre-constitutional days may seem eerily familiar even to casual readers of current events. We lived then under the control of a king. (Think now: the imperial presidency.) That king was a powerful, unitary executive who ruled at a distance. His goal was simple: to use his power over “his” American colonies to draw the maximum financial gain while suppressing any dissent that might endanger his control.
In those years, protest was dangerous. Speech could indeed make you the enemy of the government. Journalism could be a crime if you didn’t write in support of those in power. A citizen needed to watch what he said, for there were spies everywhere, including fellow colonists hoping for a few crumbs from the king’s table. Laws could be brutal and punishments swift as well as extra-judicial. In extreme cases, troops shot down those simply assembling to speak out.
Among the many offenses against liberty in pre-constitutional America, one pivotal event, the Stamp Act of 1765, stands out. To enforce the taxes imposed by the Act, the king’s men used “writs of assistance” that allowed them to burst into any home or business, with or without suspicion of wrongdoing. American privacy was violated and property ransacked, often simply as a warning of the king’s power. Some colonist was then undoubtedly the first American to mutter, “But if I have nothing to hide, why should I be afraid?” He soon learned that when a population is categorically treated as a potential enemy, everyone has something to hide if the government claims they do.
The Stamp Act and the flood of kingly offenses that followed created in those who founded the United States a profound suspicion of what an unchecked government could do, and a sense that power and freedom are not likely to coexist comfortably in a democracy. A balancing mechanism was required. In addition to the body of the Constitution outlining what the new nation’s government could do, needed was an accounting of what it could not do. The answer was the Bill of Rights.
The Bill’s preamble explained the matter this way: “…in order to prevent misconstruction or abuse of [the government's] powers, that further declaratory and restrictive clauses should be added.” Thomas Jefferson commented separately, “[A] bill of rights is what the people are entitled to against every government on earth.”
In other words, the Bill of Rights was written to make sure that the new government would not replicate the abuses of power of the old one. Each amendment spoke directly to a specific offense committed by the king. Their purpose collectively was to lay out what the government could never take away. Knowing first-hand the dangers of a police state and unchecked power, those who wrote the Constitution wanted to be clear: never again.
It needs to be said that those imperfect men were very much of their era. They were right about much, but desperately wrong about other things. They addressed “humanity,” but ignored the rights of women and Native Americans. Above all, they did not abolish the institution of slavery, our nation’s Original Sin. It would take many years, and much blood, to begin to rectify those mistakes.
Still, for more than two centuries, the meaning of the Bill of Rights was generally expanded, though — especially in wartime — it sometimes temporarily contracted. Yet the basic principles that guided America were sustained despite civil war, world wars, depressions, and endless challenges. Then, one September morning, our Post-Constitutional era began amid falling towers and empty skies. What have we lost since? More than we imagine. A look at the Bill of Rights, amendment by amendment, tells the tale.
The First Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The First Amendment was meant to make one thing indisputably clear: free speech was the basis for a government of the people. Without a free press, as well as the ability to openly gather, debate, protest, and criticize, how would the people be able to judge their government’s adherence to the other rights? How could people vote knowledgeably if they didn’t know what was being done in their name by their government? An informed citizenry, Thomas Jefferson stated, was “a vital requisite for our survival as a free people.”
That was how it was seen long ago. In Post-Constitutional America, however, the government strives to “control the message,” to actively thwart efforts to maintain a citizenry informed about what’s done in its name, a concept that these days seems as quaint as Jefferson’s powdered wig. There are far too many examples of the post-9/11 erosion of the First Amendment to list here. Let’s just look at a few important ones that tell the tale of what we have lost since 9/11.
(Lack of) Freedom of Information
In 1966, an idea for keeping Americans better informed on the workings of their government was hatched: the Freedom of Information Act (FOIA). Strengthened in 1974, it began with the premise that, except for some obvious categories (like serious national security matters and personal information), the position of the government should be: everything it does is available to the public. Like the Bill of Rights, which made specific the limits of government, FOIA began with a presumption that it was the government’s duty to make information available — and quickly — to the people, unless a convincing case could be made otherwise. The default position of the FOIA switch was set to ON.
Three decades later, the FOIA system works far differently. Agencies are generally loath to release documents of any sort and instead put their efforts into creating roadblocks to legitimate requests. Some still require signatures on paper. (The State Department notes, “Requests for personal information cannot be submitted electronically and should be submitted by mail.”) Others demand hyper-detailed information like the precise dates and titles of documents whose dates and titles may be classified and unavailable. The NSA simply denies almost all FOIA requests out of hand, absent a court order.
Most federal agencies now regard the deadline mandated for a response as the time period to send out a “request received” note. They tend to assign only a few staff members to processing requests, leading to near-endless delays. At the State Department, most FOIA work is done on a part-time basis by retirees. The CIA won’t directly release electronic versions of documents. Even when a request is fulfilled, “free” copying is often denied and reproduction costs exaggerated.
In some cases, the requested records have a way of disappearing or are simply removed. The ACLU’s experience when it filed an FOIA-style request with the Sarasota police department on its use of the cell phone surveillance tool Stingray could be considered typical. The morning the ACLU was to review the files, Federal Marshals arrived and physically took possession of them, claiming they had deputized the local cops and made the files federal property. An ACLU spokesperson noted that, in other cases, federal authorities have invoked the Homeland Security Act to prevent the release of records.
John Young, who runs the web site Cryptome and is a steadfast FOIA requester, stated, “Stonewalling, delay, brush-off, lying are normal. It is a delusion for ordinary requesters and a bitch of a challenge for professionals. Churning has become a way of life for FOIA, costly as hell for little results.”
Sealed Lips and the Whistleblower
All government agencies have regulations requiring employees to obtain permission before speaking to the representatives of the people — that is, journalists. The U.S. Intelligence Community has among the most restrictive of these policies, banning employees and contractors completely from talking with the media without prior authorization. Even speaking about unclassified information is a no-no that may cost you your job. A government ever more in lockdown mode has created what one journalist calls a “culture where censorship is the norm.”
So who does speak to Americans about their government? Growing hordes of spokespeople, communications staff, trained PR crews, and those anonymous “senior officials” who pop up so regularly in news articles in major papers.
With the government obsessively seeking to hide or spin what it does, in-the-sunlight contact barred, and those inside locked behind an iron curtain of secrecy, the whistleblower has become the paradigmatic figure of the era. Not surprisingly, anyone who blows a whistle has, in these years, come under fierce attack.
Pick a case: Tom Drake exposing early NSA efforts to turn its spy tools on Americans, Edward Snowden proving that the government has us under constant surveillance, Chelsea Manning documenting war crimes in Iraq and sleazy diplomacy everywhere, John Kiriakou acknowledging torture by his former employer the CIA, or Robert MacLean revealing Transportation Safety Administration malfeasance. In each instance, the threat of jail was quick to surface. The nuclear option against such truthtellers is the Espionage Act, a law that offended the Constitution when implemented in the midst of World War I. It has been resurrected by the Obama administration as a blunt “wartime” tool for silencing and punishing whistleblowers.
The Obama administration has already charged six people under that act for allegedly mishandling classified information. Even Richard Nixon only invoked it once, in a failed prosecution against Pentagon Papers whistleblower Daniel Ellsberg.
Indeed, the very word “espionage” couldn’t be stranger in the context of these cases. None of those charged spied. None sought to aid an enemy or make money selling secrets. No matter. In Post-Constitutional America, the powers-that-be stand ready to twist language in whatever Orwellian direction is necessary to bridge the gap between reality and the king’s needs. In the Espionage Act case of State Department contractor Stephen Kim, a judge departed from previous precedent, ruling that the prosecution need not even show that the information leaked to a Fox news reporter from a CIA report on North Korea could damage U.S. national security or benefit a foreign power. It could still be a part of an “espionage” charge.
A final question might be: How could a law designed almost 100 years ago to stop German spies in wartime have become a tool to silence the few Americans willing to risk everything to exercise their First Amendment rights? When did free speech become a crime?
Self-Censorship and the Press
Each person charged under the Espionage Act in these years was primarily a source for a journalist. The writers of the Bill of Rights chose to include the term “press” in the First Amendment, specifically carving out a special place for journalists in our democracy. The press was necessary to question government officials directly, comment on their actions, and inform the citizenry about what its government was doing. Sadly, as the Obama administration is moving ever more fiercely against those who might reveal its acts or documents, the bulk of the media have acquiesced. Glenn Greenwald said it plainly: too many journalists have gone into a self-censoring mode, practicing “obsequious journalism.”
For example, a survey of reporters showed “the percentage of U.S. journalists endorsing the occasional use of ‘confidential business or government documents without authorization,’ dropped significantly from 81.8% in 1992 to 57.7% in 2013.” About 40% of American journalists would not have published documents like those Edward Snowden revealed.
And the same has been true of the management of newspapers. In mid-2004, James Risen and Eric Lichtblau uncovered George W. Bush’s illegal warrantless eavesdropping program, but the New York Times held the story for 15 months, until after Bush’s reelection. Executives at the Times were told by administration officials that if they ran the story, they’d be helping terrorists. They accepted that. In 2006, the Los Angeles Times similarly gave in to the NSA and suppressed a story on government wiretaps of Americans.
Government Efforts to Stop Journalists
Reporters need sources. Increasingly, the government is classifying just about any document it produces — 92 million documents in 2011 alone. Its intelligence agencies have even classified reports about the over-classification of documents. As a result, journalistic sources are often pressed into discussing, at great personal risk, classified information. Forcing a reporter to reveal such sources discourages future whistleblowing.
In one of the first of a series of attempts to make journalists reveal their sources, former Fox News reporter Mike Levine stated that the Justice Department persuaded a federal grand jury to subpoena him in January 2011. The demand was that he reveal his sources for a 2009 story about Somali-Americans who were secretly indicted in Minneapolis for joining an al-Qaeda-linked group in Somalia. Levine fought the order and the Department of Justice finally dropped it without comment in April 2012. Call it a failed test case.
According to Washington lawyer Abbe Lowell, who defended Stephen Kim, significant amounts of time have been spent by the Department of Justice in the search for a legal rationale for indicting journalists for their participation in exposing classified documents. A crucial test case is James Risen’s 2006 book, State of War, which had an anonymously sourced chapter on a failed CIA operation to disrupt Iran’s nuclear program. When Risen, citing the First Amendment, refused to identify his source or testify in the trial of the former CIA officer accused of being that source, the government sought to imprison him. He responded that the “Obama administration… wants to use this case and others like it to intimidate reporters and whistleblowers. But I am appealing to the Supreme Court because it is too dangerous to allow the government to conduct national security policy completely in the dark.”
In June 2014, the Supreme Court refused to take Risen’s case on appeal, essentially ratifying a U.S. Court of Appeals decision that the First Amendment didn’t protect a reporter from being forced to testify about “criminal conduct that the reporter personally witnessed or participated in.” That decision makes clear that a reporter receiving classified information from a source is part of the crime of “leaking.”
Risen has said he will go to prison rather than testify. It is possible that, having secured the precedent-setting right to send Risen to jail, the government will bring the suspected leaker to trial without calling on him. Attorney General Eric Holder recently hinted that his Justice Department might take that path — a break for Risen himself, but not for reporters more generally who now know that they can be jailed for refusing to divulge a source without hope of recourse to the Supreme Court.
The Descent Into Post-Constitutionalism
As with the King of England once upon a time, many of the things the government now does have been approved in secret, sometimes in secret courts according to a secret body of law. Sometimes, they were even approved openly by Congress. In constitutional America, the actions of the executive and the laws passed by Congress were only legal when they did not conflict with the underlying constitutional principles of our democracy. Not any more. “Law” made in secret, including pretzeled legal interpretations by the Justice Department for the White House, opened the way, for instance, to the use of torture on prisoners and in the Obama years to the drone assassination of Americans. Because such “legalities” remain officially classified, they are, of course, doubly difficult to challenge.
But can’t we count on the usual pendulum swings in American life to change this? There were indeed notable moments in American history when parts of the Constitution were put aside, but none are truly comparable to our current situation. The Civil War lasted five years, with Lincoln’s suspension of habeas corpus limited in geography and robustly contested. The World War II Japanese internment camps closed after three years and the persecuted were a sub-set of Japanese-Americans from the West Coast. Senator McCarthy’s notorious career as a communist-hunter lasted four years and ended in shame.
Almost 13 years after the 9/11 attacks, it remains “wartime.” For the war on terror, the driver, excuse, and raison d’être for the tattering of the Bill of Rights, there is no end in sight. Recently retired NSA head Keith Alexander is typical of key figures in the national security state when he claims that despite, well, everything, the country is at greater risk today than ever before. These days, wartime is forever, which means that a government working ever more in secret has ever more latitude to decide which rights in which form applied in what manner are still inalienable.
The usual critical history of our descent into a post-constitutional state goes something like this: in the panic after the 9/11 attacks, under the leadership of Vice President Dick Cheney with the support of President George W. Bush, a cabal of top government officials pushed through legal-lite measures to (as they liked to say) “take the gloves off” and allow kidnapping, torture, illegal surveillance, and offshore imprisonment along with indefinite detention without charges or trial.
Barack Obama, elected on a series of (false) promises to roll back the worst of the Bush-era crimes, while rejecting torture and closing America’s overseas “black sites,” still pushed the process forward in his own way. He expanded executive power, emphasized drone assassinations (including against American citizens), gave amnesty to torturers, increased government secrecy, targeted whistleblowers, and heightened surveillance. In other words, two successive administrations lied, performed legal acrobatics, and bullied their way toward a kind of absolute power that hasn’t been seen since the days of King George. That’s the common narrative and, while not wrong, it is incomplete.
Missing Are the People
One key factor remains missing in such a version of post-9/11 events in America: the people. Even today, 45% of Americans, when polled on the subject, agree that torture is “sometimes necessary and acceptable to gain information that may protect the public.” Americans as a group seem unsure about whether the NSA’s global and domestic surveillance is justified, and many remain convinced that Edward Snowden and the journalists who published his material are criminals. The most common meme related to whistleblowers is still “patriot or traitor?” and toward the war on terror, “security or freedom?”
It’s not that Americans are incorrect to be fearful and feel in need of protection. The main thing we need to protect ourselves against, however, is not the modest domestic threat from terrorists, but a new king, a unitary executive that has taken the law for its own, aided and abetted by the courts, supported by a powerful national security state, and unopposed by a riven and weakened Congress. Without a strong Bill of Rights to protect us — indeed, secure us — from the dangers of our own government, we will have gone full-circle to a Post-Constitutional America that shares much in common with the pre-constitutional British colonies.
Yet there is no widespread, mainstream movement of opposition to what the government has been doing. It seems, in fact, that many Americans are willing to accept, perhaps even welcome out of fear, the death of the Bill of Rights, one amendment at a time.
We are the first to see, in however shadowy form, the outlines of what a Post-Constitutional America might look like. We could be the last who might be able to stop it.
People on the government’s no-fly list are denied their constitutional right to due process, because the government’s procedures to challenge inclusion on the secretive roster are “wholly ineffective,” U.S. District Judge Anna Brown declared in a case brought by thirteen American citizens and supported by the ACLU.
Important: The court did not declare the no-fly list itself unconstitutional per se, but did say that the lack of any effective system for knowing you are on the list (absent showing up at the airport and being denied boarding) and especially the lack of any real procedure for trying to clear your name and get off the list, are unconstitutional under the Fifth Amendment, as they deny people the Constitutional right to due process. Due process basically means the government cannot punish you, or take something away from you, without giving you the right to challenge that decision, typically in court with a lawyer.
Specifically, in a 65-page opinion, the Oregon judge ordered the government to come up with a new way for the thirteen plaintiffs to contest their inclusion on the no-fly list that prohibits them from flying in or through U.S. airspace. The government must provide notice to the plaintiffs that they are on the list and give the reasons for their inclusion. The judge also ordered that the government allow the plaintiffs to submit evidence to refute the government’s suspicions.
There is nothing, however, in the judge’s decision that negates or otherwise does away with the no-fly list. Because her decision took place only in a District Court, the government may appeal the case, perhaps as far as the Supreme Court.
What is the Current Appeals Process Like for the No-Fly List?
Understanding the importance of the judge’s decision requires understanding how the no-fly List “appeals” process works currently.
If you find yourself denied boarding, you must contact the Transportation Security Administration (TSA) via their TRIP Program and ask them to remove your name from the no-fly list. You might succeed just by asking nice; the TSA itself says that 99 percent of individuals who apply for redress are not on the terrorist watchlist, but are misidentified as people who are. To start, you use DHS’ online form. They strongly encourage an online submission, warning on their web site that “if documents are mailed, it may take 10-15 business days to receive your submission due to federal government mail screening requirements,” something left over from the very small and long ago anthrax powder letters mailed to a handful of people in 2001. Careful though– proving you are not a terrorist must be done in a 10 meg attachment or less or DHS will reject your request.
You are not currently allowed to know why, or based on what information, you are on the no-fly list. You just are. While you can ask a lawyer to help you prepare whatever you submit to DHS, you cannot be represented because you cannot otherwise interact with DHS.
The government argues in return that national security prevents a more open system– they can’t tip off the terrorists– and that limited judicial review covers any due process requirement. No-fly list appeals may ultimately go to a federal appellate court, but that court makes decisions based only on government input. The person affected is not even present and will never know what evidence the government presented against him in this secret court.
What if You’re Not a Terrorist?
If DHS agrees you are not a terrorist, you get a redress number which you can use when booking a ticket. There is never an explanation, and DHS is not allowed to tell you you are still on the no-fly list, or ever were, or why they did or did not issue you a redress number. If you never hear back from DHS and wonder if you are allowed to fly, the only way to tell is to buy another ticket and see if you can board. Repeat. Even with a redress number that clears your name in theory, DHS advises arriving at the airport extra early in anticipation of extra screening and questioning.
There are no deadlines for an answer from DHS. They may take weeks, months or forever to reply to you. Meanwhile, you, as an official dangerous person, will be able to travel by ship, train, bus, rental car, horseback, donkey cart, ferry, private rented plane, unicycle or other means. Of course none of those conveyances have TSA screening or security.
How Do You Get on No-Fly in the First Place?
On September 10, 2001, there wasn’t any formal no-fly list, though the FBI held a folder of 16 names of suspicious flyers. Among the many changes pressed on a scared population starting September 12 was the creation of two lists: the no-fly list and the selectee list. The latter was for person who would undergo additional scrutiny when they sought to fly. The former, like its name, meant if your name was on the list you simply could not board a flight inside the U.S., out of the U.S. or from some other country into the U.S.
The flight ban can also extend far outside of America’s borders. The no-fly list is shared with 22 other countries.
Names are nominated for no-fly or selectee by one of perhaps hundreds of thousands of government officials: an FBI agent, a CIA analyst, a State Department visa officer and so forth. Each nominating agency has its own criteria, standards and approval processes, some strict, some pretty sloppy. Your name may end up on the list based on scraps of online postings or as the result of a multi-year detailed investigation or because of a bureaucratic typo. The nominated name is sent to The Terrorist Screening Center (TSC), located in a classified location in suburban Northern Virginia. TSC is a multi-agency organization administered by the FBI, staffed by officials from the Department of Homeland Security, the Department of State, and all of the intel community.
A key issue is that people are never notified they are on the no-fly list. The only way to even get a hint is to buy an airplane ticket and be prevented from boarding once you arrive at the airport after at check-in the airline receives a “no-fly” message. Through the interrogation process you may (or you may not) learn you might live in the list. You will never have any idea why you are on the list; maybe you share a similar name with some real or imagined bad guy. Still on the list? The only way to tell is to buy another ticket and see if you can board. Repeat.
Want to read about the ultimate No-Fly list nightmare?
I again join the Alex Jones Show, with guest host Dave Knight, to discuss the devolving situation in Iraq, and my new book Ghosts of Tom Joad. My portion of the show begins about two hours and eight minutes in, so feel free to fast forward to the good stuff below, or jump right to it with this link.
Last year eight Americans — the four Waltons of Walmart fame, the two Koch brothers, Bill Gates, and Warren Buffett — made more money than 3.6 million American minimum-wage workers combined. The median pay for CEOs at America’s large corporations rose to $10 million per year, while a typical chief executive now makes about 257 times the average worker’s salary, up sharply from 181 times in 2009. Overall, 1% of Americans own more than a third of the country’s wealth.
As the United States slips from its status as the globe’s number one economic power, small numbers of Americans continue to amass staggering amounts of wealth, while simultaneously inequality trends toward historic levels. At what appears to be a critical juncture in our history and the history of inequality in this country, here are nine questions we need to ask about who we are and what will become of us. Let’s start with a French economist who has emerged as an important voice on what’s happening in America today.
1) What does Thomas Piketty have to do with the 99%?
French economist Thomas Piketty’s surprise best-seller, Capital in the Twenty-First Century, is an unlikely beach read, though it’s selling like one. A careful parsing of massive amounts of data distilled into “only” 700 pages, it outlines the economic basis for the 1%-99% divide in the United States. (Conservative critics, of course, disagree.)
Just in case you aren’t yet rock-bottom certain about the reality of that divide, here are some stats: the top 1% of Americans hold 35% of the nation’s net worth; the bottom 80%, only 11% percent. The United States has such an unequal distribution of wealth that, in global rankings, it falls among the planet’s kleptocracies, not the developed nations that were once its peers. 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; for Germany, 77; 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 self-proclaimed “indispensable nation.”
Piketty shows that such inequality is driven by two complementary forces. By owning more of everything (capital), rich people have a mechanism for getting ever richer than the rest of us, because the rate of return on investment is higher than the rate of economic growth. In other words, money made from investments grows faster than money made from wages. Piketty claims the wealth of the wealthiest Americans is rising at 6%-7% a year, more than three times as fast as the economy the rest of us live in.
At the same time, wages for middle and lower income Americans are sinking, driven by factors also largely under the control of the wealthy. These include the application of new technology to eliminate human jobs, the crushing of unions, and a decline in the inflation-adjusted minimum wage that more and more Americans depend on for survival.
The short version: A rising tide lifts all yachts.
2) So why don’t the unemployed/underemployed simply find better jobs?
Another way of phrasing this question is: Why don’t we just blame the poor for their plight? Mention unemployment or underemployment and someone will inevitably invoke the old “pull yourself up by your bootstraps” line. If workers don’t like retail or minimum-wage jobs, or if they can’t find good paying jobs in their area, why don’t they just move? Quit retail or quit Pittsburgh (Detroit, Cleveland, St. Louis) and…
Move to where to do what? Our country lost one-third of all decent factory jobs — almost six million of them — between 2000 and 2009, and wherever “there” is supposed to be, piles of people are already in line. In addition, many who lost their jobs don’t have the means to move or a friend with a couch to sleep on when they get to Colorado. Some have lived for generations in the places where the jobs have disappeared. As for the jobs that are left, what do they pay? One out of four working Americans earn less than $10 per hour. At 25%, the U.S. has the highest percentage of low-wage workers in the developed world. (Canada and Great Britain have 20%, Japan under 15%, and France 11%.)
One in six men, 10.4 million Americans aged 25 to 64, the prime working years, don’t have jobs at all, a portion of the male population that has almost tripled in the past four decades. They are neither all lazy nor all unskilled, and at present they await news of the uncharted places in the U.S. where those 10 million unfilled jobs are hidden.
Moving “there” to find better work isn’t an option.
3) But aren’t there small-scale versions of economic “rebirths” occurring all over America?
Travel through some of the old Rust Belt towns of this country and you’ll quickly notice that “economic rebirth” seems to mean repurposing buildings that once housed factories and shipping depots as bars and boutiques. Abandoned warehouses are now trendy restaurants; a former radiator factory is an artisanal coffee shop. In other words, in a place where a manufacturing plant once employed hundreds of skilled workers at union wages, a handful of part-timers are now serving tapas at minimum wage plus tips.
In Maryland, an ice cream plant that once employed 400 people with benefits and salaries pegged at around $40,000 a year closed its doors in 2012. Under a “rebirth” program, a smaller ice cream packer reopened the place with only 16 jobs at low wages and without benefits. The new operation had 1,600 applicants for those 16 jobs. The area around the ice cream plant once produced airplanes, pipe organs, and leather car seats. No more. There were roughly 14,000 factory jobs in the area in 2000; today, there are 8,000.
In Louisville, Kentucky, more than 5,500 people applied for what turned out to be just 50 factory jobs in 2013, some of them temporary, paying $15.78 per hour at Ford Motor Company’s Fern Valley Road plant. State unemployment officials sifted through the thousands of applications and forwarded them to Ford staff, who narrowed the field by lottery (which in itself says something about the skill levels of the jobs offered.) The wage offered to new employees is about half what union workers receive.
In January 2014, Ford announced it would hire another 350 people, to be pulled from an existing pool of 10,000 applicants. State officials in Kentucky approved $290 million in financial incentives, using taxpayer money, to bring those jobs to Louisville. The impact of those jobs is shockingly minimal; unemployment in the area is 8.2 percent, much higher than the U.S. national average. There are some 52,763 people in the Louisville metro area unable to find work, not including those working part-time jobs or who have given up trying to find work at all.
Also in in Louisville, Kentucky, General Electric’s Appliance Park, once employed 23,000 union workers at its peak in 1973. By 2011, the sputtering plant held onto only about 1,800 workers. What was left of the union there agreed to a two-tier wage scale, and today 70% of the jobs are on the lower tier — at $13.50 an hour, almost $8 less than what the starting wage used to be. A full-time worker makes about $28,000 a year before taxes and deductions. The poverty line for a family of four in Kentucky is $23,000. Food stamp benefits are available to people who earn up to 130% of the poverty line, so a full-timer in Kentucky with a family still qualifies. Even if a worker moved to Kentucky and lucked out by landing a job at the plant, standing on your tiptoes with your lips just above sea level is not much of a step up.
Low paying jobs are not a rebirth.
4) Can’t people just get off their couches and get back to work?
There are 3.8 million Americans who have been out of work for 27 weeks or more. These are the country’s long-term unemployed, as defined by the Department of Labor. Statistically, the longer you are unemployed, the less likely it is that you’ll ever find work again. Between 2008 and 2012, only 11% of those unemployed 15 months or more found a full-time job, and research shows that those who do find a job are less likely to retain it. Think of it as a snowball effect: more unemployment creates more unemployable people.
And how hard is it to land even a minimum-wage job? This year, the Ivy League college admissions acceptance rate was 8.9%. Last year, when Walmart opened its first store in Washington, D.C., there were more than 23,000 applications for 600 jobs, which resulted in an acceptance rate of 2.6%, making the big box store about twice as selective as Harvard and five times as choosy as Cornell.
Telling unemployed people to get off their couches (or out of the cars they live in or the shelters where they sleep) and get a job makes as much sense as telling them to go study at Harvard.
5) Why can’t former factory workers retrain into new jobs?
Janesville, Wisconsin, had the oldest General Motors car factory in America, one that candidate Obama visited in 2007 and insisted would be there for another 100 years. Two days before Christmas that year and just before Obama’s inauguration, the plant closed forever, throwing 5,000 people out of work. This devastated the town, because you either worked in the plant or in a business that depended on people working in the plant. The new president and Congress quickly paid for a two-million-dollar Janesville retraining program, using state community colleges the way the government once used trade schools built to teach new immigrants the skills needed by that Janesville factory a century ago.
This time around, however, those who finished their retraining programs simply became trained unemployables rather than untrained ones. It turned out that having a certificate in “heating and ventilation” did not automatically lead to a job in the field. There were already plenty of people out there with such certificates, never mind actual college degrees. And those who did find work in some field saw their take-home pay drop by 36%. This, it seems, is increasingly typical in twenty-first-century America (though retraining programs have been little studied in recent years).
Manufacturing is dead and the future lies in a high-tech, information-based economy, some say. So why can’t former factory workers be trained to do that? Maybe some percentage could, but the U.S. graduated 1,606,000 students with bachelor’s degrees in 2014, many of whom already have such skills.
Bottom Line: Jobs create the need for training. Training does not create jobs.
6) Shouldn’t we cut public assistance and force people into the job market?
At some point in any discussion of jobs, someone will drop the nuclear option: cut federal and state benefits and do away with most public assistance. That’ll motivate people to find jobs — or starve. Unemployment money and food stamps (now called the Supplemental Nutrition Assistance Program, or SNAP) encourage people to be lazy. Why should tax dollars be used to give food to people who won’t work for it? “If you’re able-bodied, you should be willing to work,” former House Majority Leader Eric Cantor said discussing food stamp cuts.
The problem with such statements is 73% of those enrolled in the country’s major public benefits programs are, in fact, from working families — just in jobs whose paychecks don’t cover life’s basic necessities. McDonald’s workers alone receive $1.2 billion in federal assistance per year.
Why do so many of the employed need food stamps? It’s not complicated. Workers in the minimum-wage economy often need them simply to survive. All in all, 47 million people get SNAP nationwide because without it they would go hungry.
In Ohio, where I did some of the research for my book Ghosts of Tom Joad, the state pays out benefits on the first of each month. Pay Day, Food Day, Mother’s Day, people call it. SNAP is distributed in the form of an Electronic Bank Transfer card, or EBT, which, recipients will tell you, stands for “Eat Better Tonight.” EBT-friendly stores open early and stay open late on the first of the month because most people are pretty hungry come the Day.
A single person with nothing to her name in the lower 48 states would qualify for no more than $189 a month in SNAP. If she works, her net monthly income is multiplied by .3, and the result is subtracted from the maximum allotment. Less than fifty bucks a week for food isn’t exactly luxury fare. Sure, she can skip a meal if she needs to, and she likely does. However, she may have kids; almost two-thirds of SNAP children live in single-parent households. Twenty percent or more of the child population in 37 states lived in “food insecure households” in 2011, with New Mexico (30.6%) and the District of Columbia (30%) topping the list. And it’s not just kids. Households with disabled people account for 16% of SNAP benefits, while 9% go to households with senior citizens.
Almost 22% of American children under age 18 lived in poverty in 2012; for those under age five, it’s more than 25%. Almost 1 in 10 live in extreme poverty.
Our system is trending toward asking kids (and the disabled, and the elderly) to go to hell if they’re hungry. Many are already there.
7) Why are Walmart and other businesses opposed to SNAP cuts?
Public benefits are now a huge part of the profits of certain major corporations. In a filing with the Securities and Exchange Commission, Walmart was oddly blunt about what SNAP cuts could do to its bottom line:
“Our business operations are subject to numerous risks, factors, and uncertainties, domestically and internationally, which are outside our control. These factors include… changes in the amount of payments made under the Supplemental Nutrition Assistance Plan and other public assistance plans, [and] changes in the eligibility requirements of public assistance plans.”
How much profit do such businesses make from public assistance? Short answer: big bucks. In one year, nine Walmart Supercenters in Massachusetts received more than $33 million in SNAP dollars — more than four times the SNAP money spent at farmers’ markets nationwide. In two years, Walmart received about half of the one billion dollars in SNAP expenditures in Oklahoma. Overall, 18% of all food benefits money is spent at Walmart.
Pepsi, Coke, and the grocery chain Kroger lobbied for food stamps, an indication of how much they rely on the money. The CEO of Kraft admitted that the mac n’ cheese maker opposed food stamp cuts because users were “a big part of our audience.” One-sixth of Kraft’s revenues come from food stamp purchases. Yum Brands, the operator of KFC, Taco Bell, and Pizza Hut, tried to convince lawmakers in several states to allow its restaurants to accept food stamps. Products eligible for SNAP purchases are supposed to be limited to “healthy foods.” Yet lobbying by the soda industry keeps sugary drinks on the approved list, while companies like Coke and Pepsi pull in four billion dollars a year in revenues from SNAP money.
There is another side to big retail and fast food’s support for food stamps.
There is much talk about the minimum wage. What was once a way for teenagers and college kids to earn a little pocket money has devolved into the take-home pay for a vast swath of America. Defenders of a low minimum wage insist that most of us benefit from workers being paid very little; lower wages mean lower costs for Walmart and others, and so lower prices for us.
Makes sense, except that it is not true.
The difference between what Walmart pays the majority of its employees and what those employees need is made up by taxpayers in the form of food stamps and other assistance. Walmart is America’s largest private employer, so we’ll use them here for most of the examples, but this applies across the board.
Choose your statistic to understand the problem: about 25% of all employed people in the U.S. receive some form of public assistance; in the fast food industry, it is 53%. About 1 out of every 3 retail workers gets public assistance. In sum, American taxpayers subsidize the minimum wage with $7 billion in public assistance.
Let’s break it into a smaller piece: After analyzing data released by Wisconsin’s Medicaid program, the House Committee on Education and the Workforce estimates that a single 300-person WalMart in Wisconsin costs taxpayers $5,815 per Walmart associate in public assistance paid.
What about higher prices? The quick answer should be obvious by now. Whatever you think you are saving at the cash register in Walmart due to those lower wages, you as a taxpayer are paying anyway in taxes to feed the woman ringing you up. If store paid a living wage, step one would a lessening in demand for public assistance. Ka-ching, lower taxes!
But let’s follow the money. Walmart consistently pays the lowest wages they possibly can, and claims that keeps prices down. Walmart is not alone in this practice; the average family’s income is lower today than at any point in the last ten years, income inequality more extreme than at any point since before the Great Depression. The U.S. now has the highest proportion of low-wage workers in the developed world. The fall in wages parallels another trend line: in January of 2013, the Bureau of Labor Statistics reported that union membership had reached a 97 year low in America.
Poverty is big business.
8 ) Should we raise the minimum wage?
One important reason to raise the minimum wage to a living one is that people who can afford to feed themselves will not need food stamps paid for by taxpayers. Companies who profit off their workers’ labor will be forced to pay a fair price for it, and not get by on taxpayer-subsidized low wages. Just as important, people who can afford to feed themselves earn not just money, but self-respect. The connection between working and taking care of yourself and your family has increasingly gone missing in America, creating a society that no longer believes in itself. Rock bottom is a poor foundation for building anything human.
But won’t higher wages cause higher prices? The way taxpayers functionally subsidize companies paying low-wages to workers — essentially ponying up the difference between what McDonald’s and its ilk pay and what those workers need to live via SNAP and other benefits — is a hidden cost squirreled away in plain sight. You’re already paying higher prices via higher taxes; you just may not know it.
Even if taxes go down, won’t companies pass on their costs? Maybe, but they are unlikely to be significant. For example, if McDonald’s doubled the salaries of its employees to a semi-livable $14.50 an hour, not only would most of them go off public benefits, but so would the company — and yet a Big Mac would cost just 68 cents more. In general, only about 20% of the money you pay for a Big Mac goes to labor costs. At Walmart, increasing wages to $12 per hour would cost the company only about one percent of its annual sales.
Despite labor costs not being the most significant factor in the way low-wage businesses set their prices, one of the more common objections to raising the minimum wage is that companies, facing higher labor costs, will cut back on jobs. Don’t believe it.
The Los Angeles Economic Round Table concluded that raising the hourly minimum to $15 in that city would generate an additional $9.2 billion in annual sales and create more than 50,000 jobs. A Paychex/IHS survey, which looks at employment in small businesses, found that the state with the highest percentage of annual job growth was Washington, which also has the highest statewide minimum wage in the nation. The area with the highest percentage of annual job growth was San Francisco, the city with the highest minimum wage in the nation. Higher wages do not automatically lead to fewer jobs. Many large grocery chains, including Safeway and Kroger, are unionized and pay well-above-minimum wage. They compete as equals against their non-union rivals, despite the higher wages.
Will employers leave a state if it raises its minimum wage independent of a nationwide hike? Unlikely. Most minimum-wage employers are service businesses that are tied to where their customers are. People are not likely to drive across state lines for a burger. A report on businesses on the Washington-Idaho border at a time when Washington’s minimum wage was nearly three bucks higher than Idaho’s found that the ones in Washington were flourishing.
While some businesses could indeed decide to close or cut back if the minimum wage rose, the net macro gains would be significant. Even a small hike to $10.10 an hour would put some $24 billion a year into workers’ hands to spend and lift 900,000 Americans above the poverty line. Consumer spending drives 70% of our economy. More money in the hands of consumers would likely increase the demand for goods and services, creating jobs.
9) Profit Before People
Where could the money to pay workers a living wage come from, except of course by raising prices?
The top one percent of income earners garnered 93 percent of income gains in the recent recovery. In the third quarter of 2012, corporate profits reached $1.75 trillion, their greatest share of GDP in history. During that same quarter, workers’ wages fell to their lowest share of GDP on record. The top six members of the Walton family (owners of Walmart) own as much wealth as 48 million other Americans combined. Meanwhile, among 35 economically advanced nations, the U.S. has the second highest rate of child poverty, 23%, just slightly better than Romania.
Yes, raise the minimum wage. Double it or more. We can’t afford not to.
10) Okay, after the minimum wage is raised, what else can we do?
To end such an article, it’s traditional to suggest reforms, changes, solutions. It is, in fact, especially American to assume that every problem has a “solution.” So my instant suggestion: raise the minimum wage. Tomorrow. In a big way. And maybe appoint Thomas Piketty to the board of directors of Walmart.
But while higher wages are good, they are likely only to soften the blows still to come. What if the hyper-rich like being ever more hyper-rich and, with so many new ways to influence and control our political system and the economy, never plan to give up any of their advantages? What if they don’t want to share, not even a little more, not when it comes to the minimum wage or anything else?
The striking trend lines of social and economic disparity that have developed over the last 50 years are clearly no accident; nor have disemboweled unions, a deindustrialized America, wages heading for the basement (with profits still on the rise), and the widest gap between rich and poor since the slavery era been the work of the invisible hand. It seems far more likely that a remarkably small but powerful crew wanted it that way, knowing that a nation of fast food workers isn’t heading for the barricades any time soon. Think of it all as a kind of “Game of Thrones” played out over many years. A super-wealthy few have succeeded in defeating all of their rivals — unions, regulators, the media, honest politicians, environmentalists — and now are free to do as they wish.
What most likely lies ahead is not a series of satisfying American-style solutions to the economic problems of the 99%, but a boiling frog’s journey into a form of twenty-first-century feudalism in which a wealthy and powerful few live well off the labors of a vast mass of the working poor. Once upon a time, the original 99% percent, the serfs, worked for whatever their feudal lords allowed them to have. Now, Walmart “associates” do the same. Then, a few artisans lived slightly better, an economic step or two up the feudal ladder. Now, a technocratic class of programmers, teachers, and engineers with shrinking possibilities for upward mobility function similarly amid the declining middle class. Absent a change in America beyond my ability to imagine, that’s likely to be my future — and yours.
If I had a crayon I’d draw you a picture, but I think you don’t really need that at this point. None of this is accidental, some sort of invisible hand at work.
Companies will continue to demand Federal, state and local governments keep the minimum wage as low as possible. The same corporate entities will then continue to have those low wages subsidized by the taxpayers. Companies will continue to spew out propaganda to convince those same taxpayers that people on public assistance are lazy cheats, and that low wages mean low prices. Capping wages at 2009 levels assures that any broad rise in societal prosperity will not reach low-wage workers, and there is no broad upward path for retail workers and fry cooks. It’s not about education, either: the percentage of low-wage workers with at least some college education has spiked 71 percent since 1979, to now encompass over 43% of all low-wage workers. Meanwhile more and more money will be hoovered up by an ever-concentrated group of the super wealthy, squeezing their workers tighter and tighter. Hey, how many miles can you drive on a gallon of blood?
In today’s America, even working full-time, at most jobs you can’t earn enough to live with government assistance. More and more of everything is owned by fewer and fewer people. If you look that stuff up in a reference book, it is called feudalism. It is our future, and, of course, thank you for shopping at Walmart!
“Our rights are subject to the government’s desire to allow us to exercise them.”
This is Hell! is a fascinating talk radio program on Chicago’s WNUR 89.3 FM, and podcast online. I spoke with them recently. Here’s what they had to say about the conversation:
From real life battlefields in real life Iraq to metaphorical battlefields in fictionalized Ohio, Peter Van Buren‘s books detail lives caught up in failing systems, both real (We Meant Well) and imaginary (his first novel: Ghosts of Tom Joad: A Story of the #99 Percent.)
In Peter’s third appearance on This is Hell!, he discusses how his years in Iraq inform his ideas about the current violence wrecking parts of the nation, how government surveillance in the U.S. has radically changed the character of American democracy, and the real world ghosts haunting the protagonist of his new book.
Have a listen to the full interview.
Earning $445 Per Second at NBC
Unlike most well-to-do young people who, after a decent education, take a series of unpaid internships and entry-level positions to begin working their way up some corporate ladder, Chelsea jumped more than a few rungs. Despite never having attended journalism school or otherwise having worked in the field, Chelsea was hired by NBC News to do feel-good stories as part of their “Making a Difference” series. Though the starting salary for such positions is already a chunky $100,000-200,000, Chelsea is being paid $600,000 a year for the same work.
Or less work. Here is a list of Chelsea’s recent NBC stories:
– June 10, NBC Nightly News, on diabetes.
– June 10, Today show, on a car accident in New Jersey.
– June 5, NBC Nightly News, General Motors safety scandal.
– June 4, Today show, missing Malaysia Airlines Flight 370.
– June 4, NBC Nightly News, about people pointing lasers at aircraft.
– June 3, NBC Nightly News, food-borne illnesses.
– June 2, Interviewed the Geico gecko, an animated character who sells insurance.
All told, in her almost three-year tenure at NBC, Chelsea has worked on all of 14 stories.
Business Insider calculated since starting work in November 2011, Chelsea earned about $26,724 for each minute she appeared on air, or $445 per second. As in one-two-three = $1335, there’s your month’s rent.
NBC has an eye for talent, at least the talent of children of important politicians. In 2009, it hired George W. Bush’s daughter Jenna to serve as a correspondent on the Today” show. In 2011, it hired Senator John McCain’s daughter Meghan as a contributor on MSNBC.
More Chelsea $$$$$$$$
But back to Chelsea. She told the New York Times in 2011 when hired by NBC she intended to donate most of the money she earned to the Clinton Foundation. In addition to her gig at NBC, Chelsea also serves Vice Chair of the recently renamed “Bill, Hillary and Chelsea Clinton Foundation,” where she was “a major force in steering her parents’ charitable work” in the final years of her mother’s time at the State Department.
Chelsea also benefits from a job as a board member for Barry Diller’s IAC/InteractiveCorp. Salary for Chelsea: $300,000. The board position also pays an annual retainer of $50,000 and a $250,000 grant of restricted stock.
Chelsea, though she only graduated with a master’s degree in 2010, started teaching graduate level classes two years later at Columbia University’s School of Public Health. Her exact salary is unknown. However, the average salary for a Columbia lecturer is $51,671.
Chelsea holds another academic post, salary unknown, as assistant vice provost for the Global Network University at New York University.
Chelsea has also presented an award to her mother at Diane Von Furstenberg’s International Women’s Day event and hosted her father’s 65th birthday at a Hollywood benefit for the Bill, Hillary and Chelsea Clinton Foundation with guests Lady Gaga and Bono.
Chelsea’s personal fortune is estimated at $15 million, most earned as a consultant at McKinsey & Company and by working for Avenue Capital Investment Group as a hedge fund manager. Chelsea and her husband live in a $10.5 million condominium in Manhattan.
Chelsea is only 34 years old and has already accomplished so much. What a bright future lies ahead! America is still a country where any child can grow up to someday become president.
When you are saying something true, pure, clean and right, you often do not need many words. Like most of the Bill of Rights, the Fifth Amendment to the Constitution is beautiful in its brevity. Americans may not “…be deprived of life, liberty, or property, without due process of law.”
There are no footnotes in the Fifth Amendment, no secret memos, no exceptions. Those things were unnecessary, because in what Lincoln offered to his audience as “a government of the people, by the people, for the people,” the government was made up of us, the purpose of government was to serve us, and the government was beholden to us. Such a government should be incapable of killing its own citizens without an open, public trial allowing the accused to defend him/herself.
Oh how times have changed.
Killing an American
On September 30, 2011 a U.S. drone fired a missile in Yemen and killed American Citizen Anwar al Awlaki, born in the United States. A few days later the U.S. also killed al Awlaki’s 16 year old American Citizen son. Al Awlaki had once been a friend of the American military, invited in the aftermath of 9/11 to speak and lunch at the Pentagon. A few years later, al Awlaki was connected by the same U.S. government to al Qaeda, apparently mostly as a propagandist who may or may not have taken on an online role in persuading other Westerners to join the cause.
In 2012 Attorney General Holder said of the al Awlaki killing and the Fifth Amendment “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.’” It was unknown at the time, but Holder was referring to a secret white paper prepared by the Office of the Legal Counsel laying out the legal justification for the U.S. government to kill one of its own citizens extrajudicially, in apparent violation of the Fifth Amendment.
A hallmark of Post-Constitutional America, of which the U.S. government killing its own citizens without due process by drone surely is a part, is the manipulation of existing rights and laws without just doing away with them. Unlike national security states and tyrannies of the past, which overtly declared constitutions and laws obsolete and crumpled up the parchment, America’s new state twists the old into something new, and sinister.
After a long legal battle to keep secret the underlying “legal” basis for its killing of al Awlaki (and others in the past, or to come?), the Obama administration released in June 2014 a redacted text of the Office of Legal Counsel’s white paper drawn up to justify the action. With some irony, the release of the 2010 document was facilitated by the Obama administration’s desire to placate senators reluctant to approve the memo’s author, David Barron, to serve on the First Circuit Court of Appeals (Barron was indeed approved.)
Reading the Kill Justification Paper: Death, With a Stroke of a Pen
Here’s what the kill white paper says in order to make legal the killing of an American Citizen by his/her government without trial (the full memo is here.)
The essential element for the kill to be legal, the document says, is “an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.” (Also, capture must be found to be unfeasible, and the kill must follow the existing laws of war.)
The rest of the justification simply flows from there in a perverse chain of logic: the president has the obligation to protect America, al Qaeda or its like are a threat, Congress has authorized war against al Qaeda, and being in al Qaeda is more relevant than whatever citizenship the target may hold or where s/he is located (“citizenship does not immunize the target.”) Basically, it is all simply an extension of the idea of self-defense. International borders and other nations’ sovereignty are not an issue if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.”
The Balancing Test
The Fifth Amendment right to due process, and perhaps to a lesser extent, the Fourth Amendment right against unwarranted seizure (i.e., a life) are dismissed casually in the white paper by a claim that the U.S.’ interest in “forestalling the threat of violence and death to other Americans that arises” trumps any constitutional rights for the individual. This is described as part of the traditional Fifth Amendment “balancing process.”
The balancing process cited as conclusive enough to justify the extrajudicial killing of an American comes, according to the kill white paper, stems from a 1976 Supreme Court case, Mathews v. Eldridge, 424 U.S. 319 (1976), where the Court held that individuals have a statutorily granted property right in Social Security benefits, that the termination of those benefits implicates due process, but that the termination of those benefits does not require a pre-termination hearing. Stick with me on this.
The balance test for the Fifth Amendment to apply as laid out in that case has three components [notes added]:
(1) The importance of the private interest affected. [In a kill case, the private interest is the life of an American citizen]
(2) The risk of erroneous deprivation through the procedures used, and the probable value of any additional or substitute procedural safeguards. [In a kill case, since the American will be dead, the impossibility of ever "correcting" the mistake. The Court held that "If the risk of error is minimal, then the need for additional procedures declines. If the risk is high then additional procedures would be merited." So, with the potential of a recoverable error, less process is needed. The more serious a mistake might be if committed, the more process needed.]
(3) The importance of the state interest involved and the burdens which any additional or substitute procedural safeguards would impose on the state. [According to the kill white paper, the idea that killing the American saves potentially thousands of other Americans lies is the state's interest. The burden of the U.S. government to follow any procedural safeguards, such as a trial in absentia where the target could have his/her side presented by a lawyer, is not addressed in the kill white paper]
In short, the balancing test says that in some situations, where the government’s interest overshadows an individual’s interest, and the individual interest isn’t that big of a deal, and where a mistake by the government can be fixed, the full due process clause of the Fifth Amendment may not have to apply.
The kill white paper draws heavily on the case Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan an American citizen and sought to detain him indefinitely without trial as an enemy combatant.
After a long legal battle that went to the Supreme Court, the three-part balance test of Mathews v. Eldridge was decided to apply to the case and allow the U.S. to limit– but not fully do away with as in the drone killings– the due process to be received. The most important point here is that despite limiting his rights, the Court was clear that the prisoner Hamdi should have a meaningful opportunity to challenge his enemy combatant status.
Interestingly, likely to avoid a court challenge to the conditions of this detention and the exposure of whatever details of his capture and possible torture might come out, the U.S. government released Hamdi without charge and forcibly sent him, an American citizen, to Saudi Arabia, and required him then to “voluntarily” renounce his U.S. citizenship. Of course the deportation and renunciation are themselves of dubious constitutionality; U.S. citizens have a right under the Fourteenth Amendment of the Constitution to return to U.S. territory after traveling abroad.
That the kill white paper makes much of the Hamdi case suggests the lack of sound legal argument. Claiming killing an American by his/her own government without trial is allowed by the balance test, the white paper ignores the fact that Hamdi was not killed. A mistake in his case can be largely corrected, possibly in the future as a result of a court appeal, simply by reinstating his U.S. citizenship and allowing him to return to the U.S.
A broader critical issue not addressed in the kill white paper is that Hamdi’s case deals with (albeit serious) administrative questions, such as should he be allowed a trial and if so under what conditions. The government never proposed a death sentence for Hamdi. The underlying case the kill white paper bases its whole argument on, Mathews v. Eldridge, deals with relatively routine administrative government procedures, and certainly not ones of life and death of a citizen. The case was of course about denied Social Security benefits.
What Do Words Even Mean Anymore?
With significant constitutional issues dispensed with via some dubious logic and creaky legal citations, the kill white paper returns to its base premise, that a kill is legal when “an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.”
The white paper does not identify what level of proof is needed to meet the test of “informed” and it does not explain who is and is not a “high level official of the U.S. government” for the purposes of killing an American.
The paper does spend a fair amount of time explaining how the standard dictionary definition of “imminent” does not apply here. The paper says for kill purposes the U.S. need not actually have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” Instead, imminent can mean a person such as al Awlaki is generally engaged in planning attacks that may or may not possibly be launched until years from now, or that may or may not happen at all. The paper says that since al Qaeda would prefer to continually attack the U.S., essentially any action, planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack and allows for a legal kill of an American citizen by the government.
And if somehow all that is not enough, the white paper also invokes the “public authority justification.” This concept says that public authorities can sometimes violate the law– a cop can justifiably shoot and kill an armed bad guy in some circumstances, and it’s a lawful kill. By extension, the government of the United States can drone down a citizen because s/he is allegedly a member of al Qaeda. The white paper does not address the fact that police shootings in the U.S. are subject to investigation and judicial review, and cops who commit an unlawful kill can face punishment.
None of this Can be Challenged in Court
The white paper also makes clear its conclusions cannot be challenged in any court. Courts have almost always refused to intervene in cases of “foreign policy,” holding constitutionally that is the realm of the Executive in consultation as required with Congress. Killing Americans, the white paper says, is a foreign policy act and thus none of any courts’ business. The issue of the white paper citing several court decisions to justify the killings while claiming the killings are not a court matter is not addressed.
It should be obvious that the kill white paper, ostensibly the result of some of the best legal thinking available to the White House, wouldn’t get a C- for a first year law student. The arguments are weak at best, the legal cites and logic rarely directly support the rationale, and the entire document seems a shaky attempt to justify however it can a pre-determined premise. The vagueness of word usage, the key terms left undefined, the odd definitions of common words like “imminent” employed, all strain against reality.
Yet despite all this (and keep in mind portions of the paper were redacted, there may be more legal falsities not yet seen), the sixteen pages described above were considered enough in Post-Constitutional America for president Obama to justify pushing aside the Fifth Amendment, ignoring due process, and ordering the death of an American citizen.
Oh how times have changed.
Over this July 4th weekend, and as I see the images of Iraq’s unfolding civil war, sometimes I think I even recognize a place I had been, having spent a year in the midst of America’s Occupation there, 2009-2010. I was a State Department civilian, embedded with an Army brigade of some 3000 men and women far from the embassy and the pronouncements of victory and whatever bright lights Iraq might have had. I grow weary now of hearing people talk about America’s sacrifices, our investment, the need for more troops or air strikes, our blood and treasure spent to free Iraq, or whatever it was we were supposed to have gone there to do.
So many people say those things. But before another one says another thing, I wish they could have seen what I saw in Iraq. This.
Private First Class (PFC) Brian Edward Hutson (name changed), in Iraq, put the barrel of his M-4 assault rifle into his mouth, with the weapon set for a three-round burst, and blew out the back of his skull. He was college- aged but had not gone and would never go to college. Notice appeared in the newspapers a week after his death, listed as “non-combat related.” Of the 4,486 American military deaths in Iraq, 911 were considered “non-combat related,” that is, non-accidents, suicides. In 2010, as in 2009, the years I was in Iraq with PFC Hutson, more soldiers died by their own hand than in combat. Mental disorders in those years outpaced injuries as a cause for hospitalization. The Army reported a record number of suicides in a single month for June 2010. Thirty- two soldiers in all, more than one a day for the whole month, around the time PFC Hutson took his life.
The M-4 rifle PFC Hutson used to kill himself, successor to the M-16 of Vietnam fame, allows the shooter, with the flip of a switch, to choose to fire one bullet per trigger pull or three. Nobody knows whether PFC Hutson spent a long time or no time with the rifle barrel in his mouth, but he must have really wanted to be dead, because he chose three shots. The bullets exploded through his brain in sequence. He left his toilet kit in the shower trailer. He still had Clearasil in the bag. Rumor was he’d had trouble sleeping. I didn’t know him.
I heard about his death at breakfast and walked over to his sleeping trailer along with some others. I took a quick look inside and saw the fan spray of blood and brain on the wall, already being washed off by the Bangladeshi contractor cleaning crew KBR had brought to Iraq for the war. The bleach solution they used was smearing more than cleaning, and the Bangladeshis had little stomach to wring out the mop heads all that often. Blood like this smells coppery. Even if you’d never smelled pooled blood before, you didn’t have to learn what it was, you already knew something was wrong in this place, this trailer, this Iraq.
Death does not redeem or disgrace. It is just a mess and no one who deals with it thinks otherwise. Don’t ask poets or pastors, because they do not know that pieces of people still look a lot like people and that extreme violence leaves bodies looking nothing like the bodies you see in open caskets or on TV. In Iraq I saw a girl crushed when a wall collapsed, her face looking like a Halloween pumpkin a few days too late. There was a drowned man in an irrigation ditch, gray and bloated, no eyes. Fish had nibbled them. You saw that stuff in Iraq. It was how war works.
A week before Hutson’s suicide, another soldier lost his life. This soldier, a turret gunner, was killed when his vehicle unsuccessfully tried to pass at thirty-five miles per hour under a too-low bridge. The Army counted deaths by accident as “combat deaths,” while suicides were not. Under a policy followed by George W. Bush and in part by Barack Obama, the families of suicides did not receive a condolence letter from the President. Suicides do not pertain to freedom. They died of the war, but not in the war.
But if distinctions between causes of death were made at the Pentagon, that was not the case on the ground in Iraq. The death of any soldier reverberated through the base This was, after all, a small town, and nobody was left untouched. The comfort of ritual stood in for public expressions of actual feelings, which were kept private and close. And the ritual prescribed by regulation was the same, whether the death
was by suicide or in combat. The chapel had rows of chairs set up, much as it would in Hamilton, Ohio, or Marietta, Georgia for a wedding, only at the front of the room was a wooden box, made and brought to Iraq for this purpose, with holes for the US and the unit flag and a slot to stand the deceased’s rifle.
The remains of the deceased were likely already on their way home and not with us. This was not for PFC Hutson anyway, it was for us. The box holding the flags was made of plywood, stained and varnished like paneling, and reminded everyone of a B+ high school wood shop project. The dead man’s boots stood on either side of the rifle, with his helmet on top. It was fitting no one had cleaned the boots, because the presence of the dust and dirt wiped away a lot of the standardization of the ritual. Before the event started, the hum in the room was about future meetings, upcoming operations, food in the chow hall, the workaday talk of soldiers.
There was a program, done up on a word processor, with the official Army photo of the deceased, wearing a clean uniform, posed in front of an American flag— young, so young, you could see a few red pockmarks on the side of his face, a chicken pox scar on his forehead. All these photos showed a vacant stare, same as every high school graduation photo. The printed program was standard fare— some speeches, the chaplain leading the 23rd Psalm, and a final good-bye.
The speeches were strained because the senior officers who feel it important to speak at these events rarely knew, or could know among the many troops under them, the deceased. As with every other briefing they gave, the officers read words someone else wrote for them to give the impression of authority and familiarity. The dead man’s job had something minor to do with radios and most present couldn’t say much beyond that. The eulogy thus rang a bit hollow, but you reminded yourself that the words were not necessarily intended for you alone and that the Colonel may not have been the best man for the job. He was a responsible man, trying hard to do something impossible, and he probably felt bad for his lack of conviction. He did understand more of why we were all here, in Iraq, and that a task had to be done, and that he need not be
Pericles or Lincoln to do a decent job of it.
The last speaker was by tradition someone acquainted personally with the deceased, a friend if one could be found, a junior leader or coworker if not. In today’s ceremony, things were especially awkward. The dead man had taken his life and had done so after only a few months in the Army and even less time at this forward operating base in Iraq. Nobody really had befriended him, and this being the third suicide on the base made the whole thing especially grim. The ceremony felt rushed, like an over-rehearsed school play where the best performance had taken place the night before. Not a surprise really; many of the soldiers present were not long from their high schools.
The Army is a simple organization, a vast group of disparate people who come together for their own reasons, live in austere conditions, and exist to commit violence under bewildering circumstances. These ceremonies were how the Army healed itself, left alone in the desert with only a vague idea why any of us were there in a war that had already been going on for seven years. Some of the soldiers in the chapel were eleven years old when the Iraq war started, nine years old when 9/11 happened. This is how wars work.
But sometimes things surprised you, maybe because of low expectations, maybe because every once in a while somebody stood up and said just what needed to be said. A young Captain rose without notes. “I was his team leader but I never really knew him. Brian was new here. He didn’t have no nickname and he didn’t spend much time with us. He played Xbox a lot. We don’t know why he committed suicide. We miss him anyway because he was one of us. That’s all I have to say.”
The word that raised the sentence beyond simple declaration was “anyway.” It was important to believe we all meant something to one another because we were part of this. When it rained, we all got wet. We could hate the war, hate the president, hate the Iraqis, and we did, but we could not hate one another.
A longer occupation, more troops, air strikes or anything else won’t bring PFC Hutson back. He– we– will never know what he died for, but we can say with certainty what he did not die for. He did not die for freedom, he did not die for WMDs, he did not die for a politician’s re-election. Like the 4500 Americans and uncounted Iraqis who died, and continue to die, he died for a mistake. Wars work like that, cost like that.
The ceremony for PFC Hutson that day ended with the senior enlisted person calling the roll for the dead man’s unit. Each member answered, “Here, Sergeant Major” after his name was called. That was until the name called was the dead man’s. “Brian Hutson?” Silence. “Brian E. Hutson?” Silence. “Private First Class Brian Edward Hutson?” Silence. Brian was not there and almost none of us had known him but yes, today, at this place, we all missed him anyway.
The above is based in part on an excerpt from Peter Van Buren’s book about his year of the Iraq War, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (American Empire Project). The story is true, thought the name of the deceased has been changed.
Professor of Economics at the Mercatus Center at George Mason University Chris Coyne (whose excellent book, Doing Bad by Doing Good: Why Humanitarian Action Fails was reviewed on this blog) and Abigail R. Hall, a second year Mercatus PhD Fellow, have come up with original research that shows the dangers of America’s unfettered global arms sales:
– Policymakers cannot know the outcome of supplying new arms in an attempt to influence foreign affairs in one manner or another because there are a series of unpredictable consequences that emerge from any single intervention in a complex system.
– It is nearly impossible for the U.S. government to monitor how arms it has sold for a particular purpose are latery used or transferred. These weapons may ultimately be used to achieve ends which may be at odds with the original goal.
– An expansion in the global arms market creates new profit opportunities funded by international political entities leading domestic arms producers to direct additional resources to lobbying both domestic and foreign governments. An increase in the size and scope of the global arms market for domestic producers increases this lobbying and the associated deadweight loss brought about by rent seeking.
– It is unclear if the U.S. government were to scale back its control of the global arms market, the result would be more total global arms. This is because a decrease in U.S. subsidies of weapons to other countries would increase the price of weapons and decrease the quantity demanded by foreign governments; a sharp decrease in the supply of arms would drive the price of weapons upward; many foreign governments face diseconomies of scale leading to a lower overall volume of arms.
U.S. Dramatically Leads in Global Arms Sales
Coyne and Hall explain just how big a player the U.S. is in the world arms market: Between 1970 and 1979 the U.S. arranged more than $74 billion in weapons sales. Between 1980 and 1989 the U.S. would agree to sell over $97 billion in arms to nations abroad. This number would rise again between 1990 and 1999 to $128 billion. Between 2000 and 2010 the U.S. arranged to send more than $192 billion in arms to countries all over the globe.
That makes America responsible for at least 68.4 percent of all global arms trade today. The next highest countries, Russia and Italy, account for only nine percent each. U.S. share in the arms market to developing nations is even higher, 78 percent. Russia, number two, accounts for just under six percent.
Do Arms Sales Facilitate Diplomacy and Secure National Security Objectives?
The most prominent U.S. government argument in favor of all these arms sales is that they facilitate diplomacy and secure national security objectives. For example, the line goes, countries that receive U.S. weapons want better all-around ties with the U.S. As for national security objectives, the idea is supposedly, as in Iraq at present, weapons sold allow some other country to fight for what the U.S. supports. But is any of that actually true?
Well, no, not really, according to Coyne and Hall. Successes in foreign policy bought with weapons sales assumes U.S. policymakers can determine the correct mix of weapons and recipients needed to achieve these goals. But the real world is messy; send arms to the Mujahedin in Afghanistan to kill occupying Russians in the 1980s and inadvertently help create al Qaeda in the 1990s, that kind of thing. Influence one thug leader somewhere with shiny weapons, and then hope like hell he stays within U.S. boundaries, does not transfer the weapons for his own purposes (illicit small-arms sales are a big business for some governments, constituting more than an estimated $1 billion in annual revenues), and does not lose control of the weapons entirely in some future coup, revolt or invasion. In short, as the report puts it, “system-type thinking matters because it implies that attempts to influence foreign affairs through arms sales can never simply do one thing, even if this is the intention, because there are a series of unpredictable consequences over time and space that emerge from any single intervention in a complex system.”
And Then There’s Iraq
Professor Coyne, in an interview with me, brought the whole academic point down to the very practical in applying his and Ms. Hall’s work to the current situation in Iraq:
“The situation in Iraq provides an excellent, albeit sad, illustration of some of our main points. The U.S. government provided significant amounts of military hardware to the Iraqi government with the intention that it would be used for good (national security, policing, etc.). However, during the ISIS offensive many of the Iraqis turned and ran, leaving behind the U.S.-supplied hardware (Humvees, trucks, rifles, ammunition.) ISIS promptly picked up this equipment and are now using it as part of their broader offensive effort. This weapons windfall may further alter the dynamics in Syria.
“Now the U.S. government wants to provide more military supplies to the Iraqi government to combat ISIS. But I haven’t heard many people recognizing, let alone discussing, the potential negative unintended consequences of doing so. How do we know how the weapons and supplies will be used as desired? What if the recipients turn and run as they have recently and leave behind the weapons? What if the weapons are stolen? In sum, why should we have any confidence that supplying more military hardware into a country with a dysfunctional and ineffective government will lead to a good outcome either in Iraq or in the broader region?”
There are many more well-argued such examples in a report that should cause U.S. policymakers to rethink their global arm sales policies, but likely won’t. The U.S. remains committed to a chess-board based view of foreign policy in general, and arms sales in particular. We make a move that we think affects only one square on the board, or maybe one piece or at the most one opponent. That opponent then makes a counter move. The U.S. plays multiple boards at once– Iraq, China, Venezuela– under the illusion that the games are not fully interconnected. Coyne’s and Hall’s work shows, in the specific case of global arms sales, how very wrong such a thought process is.
The world is complex. Countries’ interests intertwine, alliances are multi-dimensional, and you can’t assume a move on one board won’t affect another, or all of the others. That is why in lay terms, as Coyne and Hall demonstrate academically, in anything but the shortest term thinking U.S. global arms sales are doomed to neither facilitate diplomacy nor secure national security objectives.
The whole report is worth your time. Download a copy here.
There are signs of hope that the Supreme Court will return to its check and balance role of the Constitutional era.
One such sign, directly addressing the Fourth Amendment (the Court also just issued a ruling determining the procedures for challenging one’s inclusion in the No-Fly list are unconstitutional, another hopeful sign) is a recent opinion that the police cannot search the contents of an arrestee’s cell phone without a warrant.
Good news? Maybe.
The Supreme Court Recognizes Tech Affects the Fourth Amendment
Prior to this decision in the case of Riley v. California by the Supreme Court on June 25, 2014, law enforcement held that if they arrested someone, say for a simple traffic offense, they had the right to examine the full contents of his or her cell phone– call lists, photos, social media, contact, whatever was on the device, what one writer called a “montage of the user’s life.” Police traditionally have searched physical objects they find on an arrestee without a warrant, typically with the rationale that such searches were for the protection of the officers (Got a gun in that backpack?) In the case that was before the Court, a traffic stop for one man ended up with him in jail for other alleged crimes based on the contents of his phone. The Court combined the Riley case with a similar one in its decision.
The Court acknowledged that cell phones today represent far more than a “physical object.” The information they hold is a portrait of someone’s life, the same as a closet at home, or a computer sitting on your desk. Searches of those locations almost always require a warrant, and now, so will searches of your cell phone if you are arrested. An exception exists for “exigent circumstances,” such as the infamous ticking time bomb scenario where a terrorist with knowledge of an imminent attack is arrested. An legitimate exigent circumstance might also include a child kidnapper caught running a red light, whose phone might reveal the location of his victim. Common sense, if not abused by the cops.
(As background, the Supreme Court flirted with these issues about two years ago in ruling against warrantless use of GPS tracking devices by the police. In U.S. v. Jones the Court stated “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations” and thus violates a person’s expectation of privacy.)
Does this matter when talking about the NSA’s and the FBI’s technological dragnet? Maybe. Some suggest that law enforcement will work around the new restrictions by seeking perfunctory, expedited warrants automatically for each arrest, or through the use of technologies such as Stingray, which can electronically gather cell conversations without warrant. Stingray can also be used to track a person’s movements without a warrant, negating the old-school GPS devices the Supreme Court declared require a warrant.
On the positive side, while the Supreme Court decision on cell phone searches applies directly to street-level law enforcement, it does suggest an evolution within the Court that recognizes the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.
The hope now is that future Court cases will take the “new” concept that using a cell phone creates a reasonable expectation of privacy, and enlarge that to cover more of Americans’ digital lives. Can you hear us now NSA?
A funny thing to come out of Snowden’s recent interview with NBC News was his claim that he raised concerns about the NSA’s surveillance of American citizens through channels at the NSA, well before he began disclosing classified documents to journalists like Glenn Greenwald.
The NSA denied for almost a year any record of Snowden speaking up, though located a single such email only following the recent television interview. It gets complicated, and very interesting, from that point…
Snowden’s Email to the NSA
The email the NSA disclosed showed Snowden asked a fairly simple legal question arising from an NSA training session that outlined various legal authorities, from the Constitution on down.
“I’m not entirely certain, but this does not seem correct, as it seems to imply Executive Orders have the same precedence as law,” Snowden wrote, citing a Hierarchy of Governing Authorities referenced during the training. “My understanding is that E.O.s [Executive Orders] may be superseded by federal statute, but E.O.s may not override statute. Am I incorrect in this? Between E.O.s and laws, which have precedence?”
“Hello Ed,” came the reply from an NSA lawyer. “Executive orders… have the ‘force and effect of law.’ That said, you are correct that E.O.s cannot override a statute.”
What the Email Means
Based on the NSA training he was given, Snowden was questioning which carries more weight within the NSA– an actual law passed by Congress, or an order from the president (an E.O., Executive Order.) The answer was a bit curvy, saying that absent a specific law to the contrary, an order from the president has the force of a law.
By way of a trite illustration, if Congress passed a law requiring Snowden to eat tuna every day for lunch in the NSA canteen, he’d have to do that, even if the president ordered him to have the tomato soup instead. However, absent a law specifically telling him what to eat, the president’s order meant he would have to eat soup. Of course if Congress did not even know of the president’s order, it could not pass a law countering it.
Back to 2006
Hold on to the Snowden question for a moment and let’s go back to 2006.
In 2006 we knew very, very little about what the NSA was doing, and knew even less about the scope and scale of their surveillance of Americans. That context is important.
General Michael Hayden, then head of the NSA, gave a talk in January 2006 at the National Press Club. Journalist Jonathan Landay started a back-and-forth with Hayden over the wording and meaning of the Fourth Amendment. Most media outlets played the story as a mockery of Hayden, claiming he did not even know what the Fourth said. MSNBC quipped “Well, maybe they have a different Constitution over there at the NSA.”
Let’s take another look at the exchange, with a few parts highlighted:
LANDAY: I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use —
HAYDEN: No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure.
LANDAY: But the —
HAYDEN: That’s what it says.
LANDAY: But the measure is probable cause, I believe.
HAYDEN: The amendment says unreasonable search and seizure.
LANDAY: But does it not say probable —
HAYDEN: No. The amendment says —
LANDAY: The court standard, the legal standard —
HAYDEN: — unreasonable search and seizure.
LANDAY: The legal standard is probable cause, General. You used the terms just a few minutes ago, “We reasonably believe.” And a FISA court, my understanding is, would not give you a warrant if you went before them and say “we reasonably believe”; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, “we have probable cause.”
And so what many people believe — and I’d like you to respond to this — is that what you’ve actually done is crafted a detour around the FISA court by creating a new standard of “reasonably believe” in place of probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?
HAYDEN: Sure. I didn’t craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.
Just to be very clear — and believe me, if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you’ve raised to me — and I’m not a lawyer, and don’t want to become one — what you’ve raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is “reasonable.” And we believe — I am convinced that we are lawful because what it is we’re doing is reasonable.
Reasonable Searches v. Warranted Searches
The full text of the Fourth Amendment is as follows, broken into two parts for our purposes here:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The reporter questioning Hayden, and most everyone else, wrongly conflates “unreasonable” with “unwarranted,” claiming that the only reasonable search is one done under a warrant. That is not true. Cops search people and cars all the time, legally, without warrants. Same thing at the border with TSA and others. New York City has its infamous stop and frisk law.
There are libraries of case law on this, and yes, courts have generally– but not always– claimed that the same probable cause required to obtain a search warrant is an implied part of a “reasonable” search. But not always.
One Supreme Court case of interest is Vernonia Sch. Dist. 47J v. Acton. The case involved a student’s refusal to submit to drug testing as a condition of playing high school sports. But take a look at the clarity of precedent in the Court’s opinion (emphasis added):
Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant. Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.”
What Hayden Knew, Part I
As head of the NSA, Hayden was not an emotional man, one prone to off-the-cuff remarks, or an imprecision of language. Standing in front of the press in 2006, Hayden knew in great detail the vast scope and scale of surveillance of Americans his agency was carrying out at that very moment, even if his audience did not. Hayden had also been around Washington a long time, and knew political will fades, winds change, and was not about to implicate himself in a violation of the Constitution in front of a room full of journalists.
Hayden parsed the Fourth Amendment to maintain that under some legal opinions, a government search could be both “reasonable” and unwarranted and still be constitutional. Hayden also clearly referred to his “the authorization,” said “I am responding to a lawful order,” added that “the attorney general has averred to the lawfulness of the order.” He ended by saying “I am convinced that we are lawful because what it is we’re doing is reasonable.”
What Hayden Knew, Part II
The law, the statuate Snowden asked about in his 2013 email to the NSA lawyer, as passed by Congress was clear: under the Foreign Intelligence Surveillance Act (FISA), government officials have to prove to the secret intelligence court that there was “probable cause” to believe that a person was tied to terrorism to obtain a search warrant. Warrants, FISA or otherwise, still require probable cause, precisely as the Fourth Amendment states.
But what if, standing there in 2006, guessing some or all of his NSA’s work would someday become public, Hayden knew he was covered for all the searches he was doing without warrants if he just chose his words very carefully. What if Hayden had an Executive Order from the president in his office safe, a secret legal memo, similar to the memos we now know of by John Yoo that explained how torture was not torture, or the one by David Barron explaining how the president ordering the drone killing of an American was not a violation of the Fifth Amendment’s guarantee of due process. Perhaps that Executive Order Hayden had laid out the legal argument that the NSA’s electronic surveillance of every America constituted a “reasonable” search under the Fourth Amendment. Reasonable searches do not require warrants. The Fourth prohibits only “unreasonable searches.” All the push and shove over unwarranted searches was just a smokescreen, a distraction for the public. It was all legal without a warrant anyway.
At that point everything Hayden said– that what the NSA was doing was lawful because it was reasonable– makes chilling sense.
What Snowden Knows
Edward Snowden and the journalists working with his materials are smart cats. Over the past year they have had a curious knack for releasing a document, watching the president lie about it (“we don’t read Americans’ emails”) and then releasing another document exposing the lie.
Does Snowden know of, or strongly suspect, there is a secret Executive Order legalizing everything the NSA is doing by claiming the searches are “reasonable,” and thus no warrant is needed to conduct them on a mass scale? Did something in his NSA training hint at that, and, through his email inquiry asking about the relative strength of an Executive Order versus a law (in the case, the FISA law requiring probable cause for warrants to be issued), was Snowden trying to tease that out of the NSA lawyer he wrote to?
Ask Obama This Question
So let’s make it simple: Journalists with access to the president, ask this question directly: Is there an Executive Order or other document stating that the NSA’s surveillance of American citizens is “reasonable,” and thus no warrant is required for the surveillance to continue and remain Constitutional under the Fourth Amendment?
Yes or No, Mr. President. Edward Snowden and the rest of us would like to know.
I join radio host Alex Jones to discuss the situation in the Ukraine, and my new book Ghosts of Tom Joad. The part about the broader societal and economic issues underlying Ghosts begins at 13:30.
I wrote earlier about post-9/11 changes in medical privacy laws that require your doctor to hand over your medical information to the U.S. government as needed for intelligence and national security reasons. S/he is not required to ask for your authorization nor even tell you the information was given to the NSA or others. That seemed scary enough.
However, I heard from a health insurance insider, who says the situation is actually much worse:
All insurance claims, including date, service, meds, units, all meta data, who you saw and why automatically goes to the government. This has been going on since 2003.
Assume it all automatically goes into the MSA (M=N) database and to every law enforcement fusion (z=s) center. Assume it is linked to your drivers license file.
Let me assure you that a “national ID” has nothing to do with a card, chip, barcode, magnetic strip, etc. It is all about the data on file and how it is linked together. The card, chip, barcode, RFID, whatever, is merely how the data is expressed.
That’s it. Can’t confirm any of it, so decide for yourself. Sleep well, America.
Read this book. If you ever wonder what happened to the American middle class over the past 30 years or to the economy in the course of the last five years.
Read it, though Ghost of Tom Joad is not an easy read. The portrait it paints is depressing. This is a hard reality to face. And Peter Van Buren doesn’t make it any easier by writing it partly as lived experience and partly as a political statement on America. There are moments of great descriptive writing and then there are whole racks of statistics that break the narrative flow.
But none of this can take away from the importance of this book. It is a compassionate look at the American Dream since 1973 through the eyes of someone whose experience has been more nightmare than dream-like. It is also a cautionary tale– recognize the path that brought us to this pass in order to find a way out of the morass. The references to Grapes of Wrath are well-woven into the story and remind us of the need for constant vigilance to prevent exploitation.
But this is not just a political commentary. Van Buren has written a very human story about a man’s life, his expectations and disappointments. It is the story about his decisions, the results that ensue, his limited room to maneuver because of a system that he doesn’t fully understand until it’s too late. It is also a story about the people who inhabit his world and their efforts to survive, against all odds. Heartbreaking, yet familiar to anyone who has paid attention to the heartland of America over the past thirty years.
Every American should read this book. And the wider world as well to understand what makes – and unmakes – the American Dream.
I suppose I have to get this over with. Sigh. Hillary’s book, Hard Choices, is out this week. As I write it is ranked Number 5 on Amazon.
The main theme of the book echoes the current media meme around Hillary: that her successes and accomplishments as Secretary of State make it almost mandatory that she be elected president in 2016.
For that to snuggle even close to truth, there must be successes and accomplishments that rose to the level of being the president. These must be real and tangible, not inflated intern stuff gussied up to look like “work experience.” The successes and accomplishments should not be readily debatable, hard-to-put-your-finger on kind of things. Last time around we bet big on just the two words hope and change, so this round we probably should do a little more due-diligence. And we need to be able to do that. It will not be a good thing heading into an election cycle unable to talk about Hillary except in ALL CAPS BENGHAZI RETHUGS!!! or ELECT HER ‘CAUSE SHE’S A DEM AND A WOMAN!
So, Can We Talk?
Let’s start with Nicholas Kristof at the New York Times. Nick pulls no punches in a column headlined “Madam Secretary Made a Difference.” He frames his argument:
Clinton achieved a great deal and left a hefty legacy — just not the traditional kind. She didn’t craft a coalition of allies, like James Baker, one of the most admired secretaries of state. She didn’t seal a landmark peace agreement, nor is there a recognizable “Hillary Clinton doctrine.” No, her legacy is different.
The Clinton Legacy Difference
Specifically, Nick offers the following examples (all quotes from his article):
– For starters, Clinton recognized that our future will be more about Asia than Europe, and she pushed hard to rebalance our relations. She didn’t fully deliver on this “pivot” — generally she was more successful at shaping agendas than delivering on them.
– Clinton vastly expanded the diplomatic agenda. Diplomats historically focused on “hard” issues, like trade or blowing up stuff, and so it may seem weird and “soft” to fret about women’s rights or economic development. Yet Clinton understood that impact and leverage in 21st-century diplomacy often come by addressing poverty, the environment, education and family planning.
– Clinton was relentless about using the spotlight that accompanied her to highlight those who needed it more… On trips, she found time to visit shelters for victims of human trafficking or aid groups doing groundbreaking work.
– Clinton greatly escalated public diplomacy with a rush into social media.
– So, sure, critics are right that Hillary Rodham Clinton never achieved the kind of landmark peace agreement that would make the first sentence of her obituary. But give her credit: She expanded the diplomatic agenda and adopted new tools to promote it — a truly important legacy.
First up, Nick used the word “agenda” three times. Not sure what that means really. Also, I am not sure when and where diplomats historically focused on “blowing up stuff.” I also think issues such as “poverty, the environment, education and family planning” were in State’s portfolion pre-Hillary. But matter, we move on.
A read of Kristof’s article (which mirrors Clinton’s own self-written list) begs the question: What really did Clinton accomplish as Secretary of State? Even her supporters’ lists make it seem like her four years as Secretary and nearly endless world travel were little more than a stage to create video footage for use in the 2016 campaign.
Here’s Clinton talking about a pivot to Asia (that never happened); Here’s Clinton talking about all sorts of soft power issues (that little was accomplished on; readers who disagree please send in specifics, with numbers and cites and do not try and get away with the cop-out of “raising awareness,” that’s what Bono does); Here’s Clinton visiting shelters and all sorts of victims (whose plight seemed to drop off the radar after the brief photo-op; hey, how’s Haiti doing these days?); Here’s Clinton making her whole Department do social media (without any measures or metrics accompanying the push to see if it helps in any way other than generating hashtag mini-memes and please, let’s not go on about how Twitter changed the world ) and so forth. Clinton’s State Department did spend $630,000 of taxpayer money to buy “likes” on Facebook, so I guess that is one metric.
The many lists of Clinton’s accomplishments that trailed her departure from State are not very different; here are some examples.
Missing are things that in the past have stood out as legacies for others, history book stuff like the Marshall Plan, or ending a war we didn’t start in the first place, or saving something or advancing peace even a little in the Middle East or opening relations with China to forever change the balance of power in the Cold War. And for the purposes of this discussion we will not get into Clinton’s mistakes and no-shows on important foreign policy issues.
Hillary’s tenure as Secretary of State does not show she is a leader. She showed no substance. She focused on imagery. She remained silent on many issues of import (the aftermath in Libya and Iraq stand out.) Her time at State was more of a reality show many Americans seemed to enjoy, projecting their own ideas about women’s empowerment and modern social media onto her willing shell. We deserve all that we get– and are going to get– enroute to 2016.
The Department of Veterans Affairs’ (VA) in-house watchdog has demanded that the Project On Government Oversight (POGO) turn over all information it has collected related to abuses and mismanagement at VA medical facilities, according to a subpoena delivered to POGO May 30.
The VA is part of the federal government. POGO is a private non-profit group.
The subpoena from the VA Office of Inspector General demands all records POGO has received from current or former VA employees, as well as any other individuals, including veterans. The subpoena asks for records related to “wait times, access to care, and/or patient scheduling issues at the Phoenix, Arizona VA Healthcare System and any other VA medical facility.”
The Project On Government Oversight has for 33 years helped government whistleblowers. They are scrupulously non-partisan and very dedicated to exposing waste, fraud and mismanagement in Washington. They’re part of the reason we know that the Department of Defense wasted billions on things like a $7,600 coffee maker and a $436 hammer. They are very active in trying to bring some modicum of transparency to what the NSA is doing.
The Veteran’s Affairs disaster is well-known. In short, the VA, which should be helping returning service members with their health problems, instead has been hiding their impossible wait times for appointments. They got caught for some of what they did already, but to ferret out more, POGO set up an online drop-box where people could submit tips and blow the whistle anonymously. Much of the information POGO received– which could very likely help veterans– has been submitted by persons from inside the VA. After all, who knows more about what the government is really doing (or not doing) than those who work inside? Sadly, those same workers also know that today, blowing the whistle is considered a Crime Against the State, and they do not wish to go to prison simply for informing the American people what the People’s Government is up to.
As a way of helping those who wish to pass on information that may help our veterans, POGO created an online drop box. This is the equivalent of an email Inbox, except it is secure. POGO advises “To maximize your security and anonymity, you should consider using the Tor Browser Bundle for all of your electronic correspondence with POGO. You should never use a government or contractor phone, fax, or computer to contact POGO. The information you submit from this page will be sent to POGO in an encrypted message.”
Some VA employees who contacted POGO and requested confidentiality said they feared retaliation if their names were divulged. Some of the employees told POGO that they had already filed reports with the VA. You know, through channels.
Encryption still pretty much works. And the government knows that. That’s why, instead of trying to decrypt the VA whistleblowers’ messages to POGO, the VA has simply demanded them from POGO, unencrypted, via subpoena.
A subpoena is an order to do something, most typically to produce a document or appear in court.
Wait a second. How can the Veteran’s Administration be able to “legally” demand documents from a private, non-governmental entity like POGO anyway? The VA’s Inspector General, whose real job is supposedly to inspect the VA and root out waste, fraud and mismanagement, has subpoena powers that are supposed to be used for that purpose.
All other federal Inspectors General have the same power. So does Congress. These subpoenas have the titular power of law. They have the same power that a real court has to demand documents be produced. These sorts of subpoenas are authorized within the agency itself, and do not require probable cause or a court’s approval. They are considered administrative acts and occur with no outside oversight.
That said, subpoena power was never intended as a blunt tool to chase down whistleblowers even as the organization they’re blowing the whistle on fails in its mission. You’d think that the VA Inspector General has gone rogue here. But that’s not true. This is 2014 and we’re in Post-Constitutional America.
Subpoenas and the Old Fourth Amendment
The Department of Justice created a novel interpretation of the Fourth Amendment that currently allows it to access millions of records on Americans without search warrants. To clarify, a warrant is court permission to search and seize something. A warrant must be specific– enter Mr. Anderson’s home and look for drugs. Warrants are not free-hunting licenses (with exceptions) and cannot be general in nature, such as search everyone around 93rd Street for whatever illegal things they might have laying around.
DOJ has turned all that around. It claims now that under the Fourth Amendment, it can subpoena an Internet company such as Facebook and demand they look for and turn over all the records they have about Mr. Anderson. DOJ isn’t searching, per se– they are demanding Facebook do that for them, so no warrant is needed. Worse yet, DOJ believes it can subpoena multiple records, maybe all the records something like Facebook has, with one piece of paper. The same thing applies, DOJ claims, to email. If they came to someone’s home and demanded access to that person’s emails, it would require a specific search warrant. Instead, if DOJ issues a subpoena to say Google, they can potentially vacuum up every Gmail message ever sent.
The Department has continued this practice even after a federal appeals court in 2010 ruled that warrantless access to e-mail violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act also makes clear agents do not need warrants to access email in bulk when pulled directly from Google, Yahoo, Microsoft and others.
Snowden was Wrong
Edward Snowden, along with many others, has said that the best tool right now to defeat the NSA and other government spying is the use of encryption. It is possible that some forms of encryption are not breakable by the NSA. It is likely that breaking other forms of encryption is slow and/or expensive to do on a world wide web-scale. It is a race of course, between how many supercomputing algorithms the NSA can throw at the problem and the cleverness of the people creating new forms of better encryption.
If the government can access documents and information with a simple piece of paper– a subpoena– then all the encryption in the world is pointless.
POGO says they’ll fight, and that their people are willing to go to jail instead of releasing any documents. Let’s believe them. But the possibility of the government getting the documents is likely enough to scare off would-be whistleblowers from submitting anything new. And not every whistleblower organization has the guts and the resources of POGO to fight back.
The race for privacy may now be over, and the government is laughing at you still running around the track while they cut across the grass to the finish line. Suckers.
We discuss Ghosts of Tom Joad, as well as the implications of a society where 99 percent of the people are beholden to one percent for their lives. You can sell your labor, but do you also have to sell your soul?
Fitrakis and Harvey Wasserman co-wrote Did George W. Bush Steal America’s 2004 Election?, Essential Documents, and How the GOP Stole America’s 2004 Election & Is Rigging 2008. He co-wrote What Happened in Ohio? A Documentary Record of Theft and Fraud in the 2004 Election with Steven Rosenfeld and Harvey Wasserman. So you know we had a lot to talk about.
My portion starts about 10:50 in.
A powerful interview with radio host Jack Rice of KTNF, 950AM. We discuss my article Torture Laid Bare at Nuremberg, and Maybe Guantanamo. What does it say to the world when we return to the days of torture, especially with the help of doctors?
The interview itself starts about 4:45 in, after a detailed introduction.
The self-created end of privacy in the United States was brought about as much by technology as desire. Those who claim there is little new here — the government read the mail of and wiretapped the calls and conversations of Americans under COINTELPRO from 1956 to at least 1971 – do not understand the impact of technology.
Technology now being employed by the NSA and others inside the U.S. has never before existed, in scale, scope or sheer efficiency. Size matters. We are the first people in history to deal with this threat to privacy. Avoiding even the majority of encroaching digitalization essentially means withdrawing from society.
The spying and compiling of information on innocent Americans by J. Edgar Hoover’s low-tech FBI is well-known; files, recordings and photos secretly obtained exposed the lives of civil rights leaders, popular musicians and antiwar protesters. You will likely think of additional examples, or they’ll be in the next batch of Snowden documents. However, four key advances in tech have changed everything between J. Edgar Hoover’s time and J. Edgar Holder’s:
More Information from Increasingly Digital Lives
More and more of Americans’ lives are now digital than ever before, from banking to travel to cell phones to social media.
Where once the NSA was limited to traditional notions of communication, the written and spoken word, it is now known that images, photos and video are being collected and subject to facial recognition technology that automatically matches those to the traditional communications also collected, literally putting a face to a name. Facial recognition tech, even as employed today at casinos, can pick out a known person from a crowd. It can account for age, changes in facial hair, glasses, hats and the like.
An off-shoot of facial recognition is the broad category of biometrics, the use of traits unique to a person, to identify someone. These can be anything from the prosaic fingerprint to cutting-edge DNA records and iris scans. This is also big business, and now has its own trade association in Washington, DC. One of the world’s largest (known) collections of biometric data is held by the Department of State. As of December 2009, it’s Consular Consolidated Database (CCD) contained over 75 million photographs of Americans and foreigners and has a current growth rate of approximately 35,000 records per day. CCD also collects the fingerprints of all foreigners issued visas.
Collect it All, Store it Forever
NSA and others have created powerful tools that can gather and store this data, with the promise of gathering and storing everything. Data storage is cheap and more constrained today by the availability of electricity and water to cool the electronics than anything else. The possibility of quantum storage in the near future only suggests holding more data longer will be easier and cheaper. How much? NSA whistleblower Bill Binney stated in a lecture that the 80th FISA court general warrant of 2013 alone required Verizon to turn over an unknown number of records on 100 million people.
Aggregate What You Collect
Where once data was kept in paper files stuffed into cabinets in isolated offices, then in digital form by a variety of agencies in multiple formats, technology today permits combined mega-databases, where information from license plate readers, wiretaps and library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can be easily put into a single “file.”
Interesting side point: NSA analysts snoop into old girlfriends’ and boyfriends’ data so frequently that it has it’s own internal slang term: Love-INT (INT being “intelligence.”)
Eliminate the Human Link– Analysis
Emerging technologies grow more and grow capable of analyzing this Big Data. Some are even available to the public, off-the-shelf, such as IBM’s Non-Obvious Relationship Awareness (NORA, also known as IBM Relationship Resolution) software. NORA scans multiple databases (for example, geolocation info from license plate readers and social media friends) and recognizes relationships that may not be obvious at first glance. More importantly, it is fast and automated.
The Secret Service is seeking contractors to create new software to monitor social media. One key feature sought is the “Ability to detect sarcasm and false positives.” The ever-growing amount of social media content being gathered defies human monitoring. The new software would sort potential serious threat Tweets such “I will kill the president in Dallas tomorrow” from online rants like “IMHO Obama sux, somebody should do something bout dat. LOL” The Secret Service adds that the ability to detect sarcasm and false positives is just one of 18 things they scan for in social media.
Machine tools such as NORA are removing the last hurdle to the NSA knowing nearly everything, the need for trained humans in vast numbers to match the vast data haul, to “connect the dots.” In addition to efficiency, machines offer the NSA other advantages. They don’t have consciences, and they don’t blow the whistle.
BONUS: An interesting side point to the pervasiveness of surveillance: the possibility of a new elite, those who through their relationship with the government or through enormous expenditures on personal countermeasures, can maintain privacy. It seems likely that, for example, the head of the NSA could exempt himself from his organization’s own surveillance (as David Petraeus learned, the head of the CIA clearly enjoys no such exemption.) As celebrities buy private islands and use private jets to live apart from the real world, they may be able to purchase technology to enjoy more privacy than the rest of us. A new 1%.
For those visiting for the first time from TomDispatch, Salon, HuffPo or another web site, welcome. If you found my article there, A Rising Tide Lifts All Yachts, useful, please take a look at my current book on those same themes, Ghosts of Tom Joad: A Story of the #99 Percent
It’s available on Amazon, as well as at most other book sources. Buying a copy helps support the writing I do, and to keep this blog online.
Book Review of Ghosts of Tom Joad
Fire Dog Lake’s Bev Wright and Kevin Gosztola had this to say:
Ghosts of Tom Joad: A Story of the #99Percent is a sober reflection on the United States economy and how it has transformed in the past decades. Through the main character of Earl, readers are given a glimpse at how a person can so easily sink into a life where they are struggling to maintain a poor pitiful existence.
The reality Earl, his family, friends and residents of Reeve, Ohio, face is not their fault. They have very little power in this town, which has become a human sacrifice zone. They are bearing the impact of global capitalism, where it is cheaper to use sweat shops in Thailand or prison labor to make things. They are suffering the shift into a retail or service-based economy where Big Box stores are where one is most likely to find a job.
No salvation in being employed exists. There is no dignity for employees; unions are a scourge and a decent wage, breaks, sick days, etc, are all luxuries these corporations refuse to grant their workers. People work because they have to in order to get by and because they recognize they are lucky to have any job they can get.
There’s a “story truth” to what Van Buren writes that is similar to the “story truth” in the classic work of fiction, The Things They Carried For example, Earl gets a job at a Big Box store called Bullseye:
…My job at Bullseye was to take big boxes of things off the truck and do the break down. It was called officially by Bullseye in the associate handbook, “Inbound Event Processing.” What happened is that a computer at the Bullseye headquarters called a computer at a warehouse, which notified a computer in New Jersey to send off a buy order ultimately to a factory computer in Thailand to make some more headache pills to replace the ones we had ordered for our store. They came in a big carton of say 144 smaller boxes. I tore a pick sheet off the printer, which told me to count out thirty-six of them boxes into a plastic tub labeled PHARMACY, then count out say twenty-four more and put them into a tub labeled GROCERY, and so forth. Somebody else would come into the back room from each of those departments and take their tub. Because of me and my counting, the Bullseye store could order a big cheap box of 144 and I’d divide them up right. A computer could not do that and so almost reluctantly I had a job…
The experience of Earl may be fictional, but it feels true. When Earl’s figuring out how to use pay day loans to get by and having difficulty getting a credit card, when he is sleeping in his car and discovering what it means to be homeless and when he is facing down all the drug addiction in his hometown, it has an emotional punch to it that may not be there if this was non-fiction.
Van Buren experienced some of what is in the book himself when he had to take a minimum wage job after being forced out of the State Department for blowing the whistle on corruption stemming from Iraq “reconstruction” projects.
He also traveled to parts of the country and set up situations so he could experience what it is like to be jobless or homeless, such as how to sleep in your parked car without the cops bothering you.
One of the cities he visited was Weirton, West Virginia. It used to have a steel mill. It used be a place where residents had jobs. The mill no longer operates so now what do people do? They spend time in diners. They sit at bars. They drink alcohol all day to dull the sadness from being so poor and hopeless.
Toward the end of the book, there’s a preacher, Casey, who works at a shelter. Casey talks to Earl and others who are going on about who has it worse.
Look, until we understand at a gut level we are all in this together, if we keep thinking black and white and never see the whole 99 percent of us are dirty gray, we’ll never get anywhere. We need to think leveling up, not leveling down to create an economy, hell, a society, that is sustainable. That’s the word—sustainable—because what we are doing now is gonna kill us all.
There’s an unyielding bleakness to the story in Ghosts of Tom Joad, but it is our story. It is America’s story. It is the story of failure that Van Buren has experienced, that friends and family of Van Buren have experienced, that people who know Van Buren and know of Van Buren have experienced and that everyone participating in this Book Salon chat has probably experienced to some degree.
Anyone who has not experienced the story told in Ghosts of Tom Joad is privileged, overwhelmingly. They likely live with the fear that at any moment they could be in the position of Earl. And that is why we have to face it down because we all recognize the system is dehumanizing and really could kill us all.
U.S. Secretary of State John Kerry, who at this point has all the credibility of a minor Kardashian just out of rehab, somehow was allowed on national television to say this:
If Mr. Snowden wants to come back to the United States, we’ll have him on a flight today. [He] should stand up in the United States and make his case to the American people… A patriot would not run away… Let him come back and make his case. If he cares so much about America and he believes in America, he should trust the American system of justice.
A near-complete failure as Secretary of State (if you are not sure, read this), Kerry is apparently relegated within the Obama administration to the role of mumbling bully-boy statements, faux-machismo rantings whose intended audience and purpose are very, very unclear. Did Kerry think he might persuade Snowden to take up the challenge and fly back to the U.S.? Maybe meet Kerry in the Octagon mano-a-mano? No, Kerry sounded much more like Grandpa Simpson than America’s Senior Diplomat.
And Kerry should know better. He once, perhaps briefly, was also brave enough to act on conscience.
Kerry’s Fall from Courage
In the 1960s, Kennedy-esque, Kerry went from Yale to Vietnam to fight in what he came to see as a lost war. He became one of the more poignant voices raised in protest by antiwar veterans. He threw away his medals, no doubt causing some pundit of the day to claim he had harmed America in the eyes of its enemies, perhaps disgraced his fellow service members. Four decades after his Vietnam experience, he has achieved what will undoubtedly be the highest post of his lifetime: secretary of state. What does he do from that peak? Make fun of Edward Snowden.
(I’ll keep the focus on Kerry here, but is important to mention that the things said about Snowden are the same old lazy, sad tropes said about whistleblowers since Dan Ellsberg. They should face justice. They harmed America (never any specifics on that one) and so forth.)
Make His Case to the American People?
Having watched Manning, Snowden (and Kerry if he’d admit it) knows what he could expect from American justice.
Trials under the Espionage Act, which the U.S. says is how Snowden will be charged, quite specifically prohibit discussion of anything except proof or rebuttal that the accused did leak classified information. A jury is not allowed to rule on, or even hear about, motive and intent.
John Kiriakou, the former CIA officer who was the first to go on-the-record with the media about waterboarding, pled guilty in his Espionage Act case last year partially because a judge ruled he couldn’t tell the jury about his lack of intent to harm the United States. In the case of State Department official Stephen Kim, the judge ruled the prosecution “need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.” In the Espionage Act case against NSA whistleblower Thomas Drake, the government filed motions to make sure the words “whistleblowing” or “overclassification” would never be uttered at trial. In Chelsea Manning’s trial, Manning’s defense wanted to argue she intended to inform the public, that the military was afflicted with a deep and unnecessary addiction to overclassification, and that the government’s own internal assessments showed she caused no real damage to U.S. interests. All this information was ruled inadmissible.
A SuperMax cell is not a very good bully pulpit.
Kerry is either lying, or his hopelessly ignorant.
John Kerry, here’s a deal Snowden might accept: When the Department of Justice agrees to charge James Clapper, national director of intelligence, for lying under oath to Congress about the surveillance of Americans, Snowden will know American justice is fair and equally applied, and come home for a trial. Better yet Kerry, promise that both trials will be televised live with no sealed documents or secret sessions. Deal?
As for any sort of a fair trial, John Kerry claimed in the past “People may die as a consequence to what this man [Snowden] did. It is possible that the United States would be attacked because terrorists may now know how to protect themselves in some way or another that they didn’t know before.”
Despite the fact that none of that has happened in the long year since Snowden’s information has been on the Internet worldwide, it does suggest officers of the United States government such as Kerry have stepped back from the now-quaint notion of innocent until proven guilty.
Patriots Don’t Run
As for Kerry’s remark about patriots not running, the Secretary should check with the Department of State he titularly heads up. He’d learn between 2009-2011 the U.S. granted asylum to 1,222 Russians, 9,493 Chinese, and 22 Ecuadorians, not including family members, among many others from a variety of countries. The U.S. acknowledges these people as patriots, men and women who took a dangerous and principled stand against a government they felt had gone wrong. A double-standard is no standard at all.
Love of Country
As for love of country, which Kerry maintains Snowden does not have until he surrenders himself to American authorities, Snowden took his love of America with him. Unlike whatever topsy-turvy version Kerry might still hold to, love of country does not necessarily mean love for its government, its military, or its intelligence services. Snowden, and Kerry took an oath that stated: “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” He didn’t pledge fealty to the government or a president or party, only — as the Constitution makes clear — to the ultimate source of legitimacy in our nation, The People.
In an interview, Snowden indicated that he held off on making his disclosures for some time, in hopes that Obama might look into the abyss and decide to become the bravest president in our history by reversing the country’s course. Only when Obama’s courage or intelligence failed was it time to become a whistleblower. Snowden risked everything, and gained almost nothing personally, not to betray his country, but to inform it.
John Kerry, love is expressed through one’s actions, not just words. Snowden clearly believes something other, more, deeper, better than himself matters. He has to believe that one courageous act of conscience can change his country. I think once, long ago, John Kerry might have believed that, too.
BONUS: John Kerry, who said patriots don’t run, and that people should face justice, make their case to the American people and trust in the system, is currently running away from a Congressional subpoena because he doesn’t want to talk about Benghazi.
The killings in Isla Vista by one misogynist thug represent a terrible loss of life, most killed with a gun. Of course people can die so many ways, and the Isla Vista murderer managed to stab three people to death and run one down with his car. Still, the focus is and should be on the quickest, easiest way and thus most dangerous way to kill a lot of people: guns.
Joe the Plumber
Enter Joe the Plumber. You remember Joe, right? He was a pathetic, semi-employed, non-union plumber from Ohio that pathetic Republican candidate for president John McCain plucked out of a pathetic crowd in 2008 and tried to make a pathetic campaign meme out of. Working man, pull up by his bootstraps, that old garbage. Joe (which isn’t even his real name) had a few minutes of faux-fame alongside the other sideshow to that freakish campaign, Sarah Palin, and both more or less crawled back into the mud from whence they came. Or should have.
For reasons quite unclear, people still feed and diaper Joe the Plumber, interview him, and perhaps even listen to him. And for a reporter desperate for some new angle on America’s latest mass murder, what better to do than look up ol’ Joe for a comment. Here’s what Joe said:
I am sorry you lost your child. I myself have a son and daughter and the one thing I never want to go through, is what you are going through now. But: [sic] As harsh as this sounds – your dead kids don’t trump my Constitutional rights. But the words and images blaming “the proliferation of guns”, lobbyists, politicians, etc.; will be exploited by gun-grab extremists as are all tragedies involving gun violence and the mentally ill by the anti-Second Amendment Left.
I cannot begin to imagine the pain you are going through, having had your child taken away from you. However, any feelings you have toward my rights being taken away from me, lose those.
Leaving aside the simple insensitivity of speaking that way to grieving parents whose kids were just murdered by a loon allowed to own multiple handguns and carry 400 rounds of ammunition in his car, my hat’s off to Joe for turning a tragedy around and making it all about him. Classy.
In addition, though Joe likely don’t read no much no more, the Second Amendment is about the only part of our Bill of Rights that hasn’t been gutted post-9/11. Right to privacy? Ask the NSA. Freedom of speech? Check with jailed Occupy people. Right to a fair trial? How’s that going Chelsea Manning? Nope, nobody is grabbing any guns Joe. Repeat after me: It. Is. All. In. Your. Head. Now stop mixing oxy and vodka shots, ‘Kay?
What Joe missed was the chance to decry how “nothing could have been done about this.” Yeah, sure, the cops checked the shooter out ahead of time, but, well, they didn’t search his house or look at his social media as if he were, you know, a brown Muslim. And those reports about him being mentally ill. Well, sir, that’s no crime either.
What could have been done? How can we as a nation reconcile this terrible tragedy with what Joe the Plumber had to say?
America as No. 1
To start, it is sadly clear America has a lot of mass shootings. 15 of the 25 worst mass shootings in the last 50 years took place in the United States. In second place is Finland, with two entries. Since 1982, there have been at least 61 mass murders carried out with firearms across the country. It seems to be getting worse: there have been at least 21 during the last six years. School shootings seem an American speciality. The number of such incidents in the U.S. was only one less than in the next highest 36 countries combined. Americans die from violence in general, and gun violence in the specific, at higher rates than pretty much anywhere outside of actual war zones.
It’s the Guns, but It isn’t Just the Guns
There are many other countries where guns are abundant. There are also examples of mass murders by the mentally ill around the world. But it seems that the two only collide with, well, such violence, in the United States. For Joe the Plumber, Joe, relax. No one is going to take your guns away. Americans will continue to be able to purchase whatever kinds of firearms they wish, in any quantity, and with any amount and type of ammunition. The nation barely even throws gun control lip service any more, even after (another) mass shooting.
The Second Amendment long ago swerved so far from the Founder’s intent, “a well regulated Militia, being necessary to the security of a free State,” that it no longer seems to exist within today’s context of the Bill of Rights. The confluence of huge corporate interests represented by the NRA, carpetbagging politicians owned by the NRA and frightened people protecting their own fears ensures this amendment alone will forever stand untouched. The guns are not going away.
So that leaves us. Why are we so violent? Why, after a workplace slight or a turn-down by a woman, is the go-to move for too many Americans to pick up a gun and slaughter unrelated and innocent people? I hate to end this way, but I don’t know why. I want some sort of gun control, but I know while it is necessary, it won’t be sufficient. I wish I knew why. I wish I knew.
Elliot Rodger, a college student who posted videos that documented his rage against women, killed six people and wounded 13 others last week. He stabbed three men to death in his apartment and shot the others as he opened fire on bystanders on the crowded streets of Isla Vista, California. Rodger then killed himself. Three semi automatic handguns, along with 41 loaded ten-round magazines— all bought at local gun stores— were found in his car. There could have been many more dead.
So where was the NSA?
For the year since Edward Snowden revealed in detail the comprehensive spying on every aspect of American lives, we have been assured by the president and the NSA that every single one of those intrusions into our life was necessary to protect us. The now-former NSA chief said he knows of no better way his agency can help protect the U.S. than with spy programs that collect billions of phone and Internet records. “How do we connect the dots?” he said, referring to often-hidden links between people, events and what they do online. “There is no other way that we know of to connect the dots. Taking these programs off the table is absolutely not the thing to do.”
So where was the NSA?
Elliot Rodger posted on his social media, presumably monitored by the NSA, about suicide and killing people. His family asked police to visit Rodger’s residence. But when they showed up, Rodger simply told deputies it was a misunderstanding and that he was not going to hurt anyone or himself. No search was conducted.
Barely 24 hours before the killing spree, Rodger posted a video on YouTube, presumably monitored by the NSA, in which he sat behind the steering wheel of his black BMW and for seven minutes announced his plans for violence. The video has been leaked– see it here.
So where was the NSA in Boston?
In the case of the Boston Marathon Bomber Dzhokhar Tsarnaev, the NSA failed to notice the Boston bomber’s visits to al Qaeda’s online magazine or his “terrorist” YouTube videos. The online magazine gave Tsarnaev the details he needed to build his bombs. The NSA also failed to note the online communications Tsarnaev had with a known extremist in Dagestan, who reportedly listed Tsarnaev among his cyber friends.
Even after the bombing, the NSA, Justice Department, and Homeland Security failed to identify the suspects from close-up pictures, and had to ask the public for help, even though photos of both brothers were scattered across social media, presumably monitored by the NSA.
What was law enforcement doing in Boston in the time period leading up to the bombings? Monitoring Occupy and others, including tracking the Facebook pages and websites of protesters and writing reports on the potential impact on “commercial and financial sector assets” in downtown areas.
The monitoring of legitimate protest groups was not limited to Boston. The FBI monitored Occupy Wall Street from its earliest days and treated the nonviolent movement as a potential terrorist threat. Internal government records show Occupy was treated as a potential threat when organizing first began in August of 2011. Counterterrorism agents were used to track Occupy activities.
So where is the NSA?
All of the failures of the NSA cited above are exactly the kind of connect-the-dots fails that spying on all Americans were supposed to alleviate. At this point we’re left with one of two explanations.
The first explanation is that the NSA is simply incompetent. They may not be very good at their job, their technological ability to collect may not be matched with an ability to process the data, or they are simply so flooded with data as to be ineffective. Why should we expect a government that stumbles on everything from managing appointment lists at veteran’s hospitals to major foreign policy endeavors to do any better at intelligence work.
The second explanation is much darker. It remains possible the business about connecting dots and protecting America is a ruse, a sham, a cover story, and that mass surveillance has a much more sinister purpose. Pick one: control dissent, spy on groups like Occupy, blackmail, political advantage, industrial intel, and so forth. Snowden’s revelations, as significant as they are, really only shed light on what the NSA does. They do not address why the NSA spies on us. Therein lies the real story of the century, waiting for the next whistleblower to expose.
Some commentators on the Isla Vista mass killing have decried the problem of “What could have been done? Sure he posted some crazy stuff, but he didn’t really commit a crime before he started shooting, right?”
Interesting argument, until you compare it to how the government deals with “real terrorists.” The magic words used are “conspiracy to commit terrorism,” a crime that basically involves talking about or planning to do something awful. The same law exists in regards to planning to commit a garden-variety murder. The logic is that if the police have clear evidence that you are about to blow up a skyscraper, it makes no sense that they have to wait until you trigger the dynamite to arrest you. Fair enough.
But let’s look at a few examples in practice.
In North Carolina recently, the FBI charged two men they say conspired and trained to exact “violent jihad.” The federal investigation began when one man contacted an undercover FBI source by email and told him he wanted to go overseas and fight, and he asked another how he should prepare to fight in Yemen or Syria. The other guy frequently “spoke about his weapons,” and said he was “considering” violent acts either in the United States or abroad. The men were arrested and charged with conspiracy.
Three members of a Georgia militia were charged with conspiracy to attack federal agencies. They “attempted” to obtain pipe bombs and thermite devices, and chatted online about plans to attack the federal government.
American citizen “Jihani Jane” was charged with conspiracy to commit terrorism based nearly completely on her online activities.
Your FBI is concerned that bonehead Americans will travel overseas to enemy-controlled territory such as China and be recruited as spies. Since this apparently sort-of happened once to one total dumbass kid, the FBI turned right around and spent a boatload of your taxpayer dollars to make a cheesy video, albeit one with professional actors and Hollywood-level technical production qualities. The video explains how to become a Chinese spy so you don’t do that.
If you’d like to see this 21st century version of those hygiene movies once shown in health classes across America (Reefer Madness for STDs), you need only drop by the Facebook page of the Office of the Director of National Intelligence (ODNI). What, you didn’t know that the U.S. government organization responsible for coordinating all spying for America had a Facebook page? Silly you. It’s here. We’ll leave the question of who the 23,000 people who “like” the page are aside for now.
Instead, let’s enjoy the irony of the web. Playing inside the video warning American kids about being recruited as spies when they study abroad is in fact an ad encouraging Americans to study abroad. Look:
See the ad, there on the bottom? Win for the internet.
As a follow up, did the Chinese in fact place that ad to undermine the U.S. government’s efforts to get kids to stay at home? Or does the ad imply the close cooperation Google and Facebook warmly enjoy with the NSA helping them spy on Americans? Better yet, why does a video made and paid by taxpayer money have ads at all?
Bottom Line: Americans, stay home. Ignorance of the world is a small price to pay. For Freedom.
But not in this case: despite falling revenues, and despite only reluctantly paying minimum wage to its workers, Walmart increased the pay for its top executives. The people who do the labor get little. The people who make the decisions that can cause falling revenues get more (and more and…) Could it be any clearer what is going on? A flatulence of money.
This is what Thomas Piketty’s theories look like in practice.
Some Background from a Real Economist
Economist Thomas Piketty’s new bestseller, Capital in the Twenty-First Century makes clear there has been a significant increase in income inequality in America. Our inequality rate is higher than it ever has been in our own history, is growing, and is higher than in countries in Western Europe and Canada.
In the United States, the top one percent own 35 percent of all capital, and the top ten percent of wealth holders own roughly 70 percent. The bottom 50 percent have roughly five percent. Note also that until slavery was ended in the United States, human beings were also considered capital.
The inequality is driven by two complementary forces.
By owning more and more of every thing (capital), rich people have a mechanism to keep getting richer, because the rate of return on investment is a higher percentage than the rate of economic growth. This is expressed in Piketty’s now-famous equation R > G. The author claims the top of layer of wealth distribution is rising at 6-7 percent a year, more than three times faster than the size of the economy.
At the same time, wages for middle and lower income people are sinking, driven by factors largely in control of the wealthy, such as technology employed to eliminate human jobs, unions being crushed and decline in the inflation-adjusted minimum wage more and more Americans now depend on for their survival.
Back to Walmart
A key question for detectives trying to figure out who may have committed a crime is to ask cui bono, “Who benefits?” Who stands to profit from a murder, from a crime? That’s often your perp.
In Walmart’s case, it is not its stockholders who profited. Indeed, this has not been a money year for Walmart shareholders. Despite an overall good twelve months for the stock market in general, Walmart stock bumbled due to lower sales growth.
No joy for Walmart’s customers, or its own employees. Walmart cited cuts in federal food stamps as one reason for its weak sales increase. Since they are paid only minimum wage (and Walmart fights vigorously against any increases) and only are given 39 hours a week or less so as not to qualify for full-time benefits, a fair number of Walmart’s own workers receive food stamps.
Good news though for Walmart’s top executives. The company employed some accounting tricks to “adjust” on paper actual revenues to make them appear higher than in reality. On the strength of that “adjusted” performance, William Simon, CEO of Walmart’s United States unit, received total compensation of $13 million last year. Of that, $1.5 million was a “performance bonus,” paid out actually for declining revenues. In fact, six of Walmart’s top executives received a total of $8.42 million in cash incentive payments for 2014 even as revenues fell and the company closed stores. The former employees of those stores, needless to say, did not receive any performance pay bonuses as they fell deeper into poverty.
Walmart’s executives receiving these bonuses are the equivalent of a sports team getting paid extra because they lost. And we know that only happens when a game is rigged, right? How much more clarity into how the New Economy works do you need? More? Well, just wait for Walmart’s next earnings report and you see who is shaving points for their own benefit.
The concept behind it dates right back to the Founding– people in a democracy must know what their government is doing in their names. Such an informed citizenry (in Jefferson’s words) is essential to our system of government. How else can we know how to vote, what to support, what to oppose?
Freedom of Information Act
The Freedom of Information Act (FOIA) began with the general premise that except for some obvious categories (serious national security things, personal information and the like) the default position should be that everything the government has should be otherwise available to the public. The ideals behind FOIA were so grand that there wasn’t even a request form created. Citizens would (pre-Internet) simply write a letter to a designated FOIA office at say, the Department of State, saying what records they sought and the federal agency would send those records out to them. The official deadline for response was 30 days. If the records broadly served the public interest there wasn’t even a fee. Otherwise, the only cost was to be for copying.
FOIA in 2014
The FOIA system today works very differently. Agencies are generally loath to release anything, and so create roadblocks to legitimate FOIA requests. Some still require original signatures and won’t accept requests online. Others demand hyper-detailed information on the request, such as the precise dates and titles of documents whose dates and titles may be classified and thus unavailable– Catch 22. Most agencies regard the deadline for a response simply as the time period to send out a “request received” note. Many employ very, very few staff to process requests, leading to near-endless delays. The CIA won’t directly release electronic versions of documents; if a digital format is requested, the CIA prints out the original, then scans it into a PDF, significantly raising the costs to the requester while delaying delivery. Even when a request is fulfilled, “free” copying is often denied, and reproduction costs exaggerated, further hurdles to be overcome.
My own FOIA requests ahead of a possible lawsuit to my then-employer, the Department of State, were routinely returned for “more identifying information” and ultimately were assigned a “fulfillment date” of several years into the future, precluding their use in any legal setting.
John Young, who runs the web site Cryptome and who is a steadfast FOIA requester, stated “Stonewalling, delay, brush-off, lying are normal. It is a delusion for ordinary requestors and a bitch of a challenge for professionals. Churning has become a way of life for FOIA, costly as hell for little results. In short, it is a confidence game.”
Individual states have started to follow the federal government’s example. The Michigan Department of Education said the least expensive employee able to fulfill a specific Freedom of Information Act request has a total compensation of $116,917 a year. In 2009, the Michigan State Police said in a FOIA response to the Mackinac Center for Public Policy that materials related to the spending of Homeland Security grants would cost $6.8 million to fulfill.
What is the State Department Hiding?
Chief among federal agencies which do not fulfill their legal duties under FOIA is the U.S. Department of State. Of the top fifteen agencies in terms of FOIA requests received (representing over 90 percent of all FOIA requests,) new research shows that State ranks dead last, with a score of 37. Homeland Security bests State with a 51. The Department of Justice beats State with an 81.
One FOIA case in particular reveals the depth to which the State Department seeks to withhold information from the public.
In 2012, a Gawker editor filed a FOIA request with the State Department, asking specifically for all the emails between Hillary Clinton confidant/spokesperson Philippe Reines and reporters from 34 media outlets, including the New York Times and the Washington Post. Agencies are required to maintain copies of official communication by the FOIA– a “system of records.” Not having such as system in place is a violation of federal law. Emails are clearly included in what must by law be archived.
Nearly a year after filing his FOIA request, the Gawker editor finally recieved a response from the State Department. “After a thorough search,” the State Department wrote, “no records responsive to your request were located.” The letter did not explain why the Department could not locate emails between reporters and someone whose job it was to correspond with reporters. Gawker is appealing the action by State.
Despite State’s inability to locate a single email between Hillary spokesperson Philippe Reines (he is working on Clinton’s “transition staff” at present and is expected to play a major role in her administration) and any reporter, we found one, on the internet. The email exchange is with now-deceased reporter Michael Hastings, concerning Benghazi. Reines concludes the email chain by telling Hastings “And by good day, I mean F*ck Off.”
But All is Not Lost?
There is good news. Everyone’s favorite part of the State Department, Diplomatic Security (“Stop Calling Us the Stasi, We’re Not that Organized”) is hiring. Specifically, just this week they listed an opening for a Freedom of Information and Privacy Act Division Chief responsible for planning, managing, directing and supervising the staff, oversees the development of the Bureau’s policies, and develops the Division’s plans and strategies.
And righteous bucks. Depending on your civil service grade, this job starts at more than $100,000 and zooms up.
Most Transparent Administration in History
Obama’s early pledge to oversee the most transparent administration in history is by now a punch line in every pundit’s act. But let’s put some numbers to the joke.
In the past year, the government cited national security as a reason to withhold information sought under FOIA 8,496 times, a 57 percent increase over a year earlier and more than double Obama’s first year, when it cited that reason only 3,658 times. Even the Agriculture Department cited national security six times, followed by the Environmental Protection Agency doing it twice and even once by the National Park Service. Five years after Obama directed agencies to less frequently invoke a “deliberative process” exception to withhold materials describing decision-making behind the scenes, the government did it anyway, a record 81,752 times.
Government is not made up of dynamic, freethinkers. Most folks inside the federal government are, or become, a little less bold, a little more gun shy, a lot more concerned about what they say and the consequences of what they do. They are not folks who by and large like to stick their necks out. So a clear pattern of a government essentially refusing to follow the FOIA law isn’t happenstance.
It’s policy now in Post-Constitutional America.
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