• Archive of "Democracy" Category

    Republicans Welcome Ebola (Satire)

    October 25, 2014 // 3 Comments »

    ebola-cnn


    Giggling, the Chairperson of the Republican Party could barely contain himself when he learned a major hurricane was headed for the east coast of the United States. “Can anyone tell me if it’ll hit any blue states hard? We can always use some extra help I guess, but with ISIS and ebola, maybe that would be piling on. We live in great times.”

    Documents show that the entire Republican midterm strategy is based on creating a perfect storm of fear in the U.S., combining over-reaction and panic over ISIS with growing fears of an apocalyptic ebola epidemic sweeping through the nation’s gun shows. “Friends,” the chair continued, “This could be like the election after Watergate, when the Dems could have run nearly anyone, even a nut job like Jimmy ‘James’ Carter, and won. We just need to tie Obama a little bit more directly to the ebola thing and we are in, control of the Senate.” The chair actually lit a comically large Cuban cigar at that point.

    According to leaked documents left at a Chili’s by Edward Snowden while changing planes in Atlanta enroute from Moscow to a vacation villa outside Vladivostok, the initial Republican plan was to convince its base that ISIS operatives were everywhere. “The party must let every voter know that ISIS is dressed as terrifying clowns out there and plans to eat their dogs and behead their fat kids. That will be a money shot for November.”

    But as confident as the Republicans were after encouraging Fox, then CNN and then Cartoon Network to run ISIS beheading videos 24/7 as part of the plan, even their senior leaders admit ebola was a surprise gift. “Think about it. Unlike terrorism, which has basically killed no one in the U.S. since 9/11 but still controls our daily lives, ebola is an actual thing. We don’t even have to make this one up. And, and this is the best part of all, it comes from Africa, er, you know, um, from “not white people” which speaks to our Red State voters’ most cherished beliefs. And two boneheaded nurses in Dallas can’t remember enough high school biology to even wash their hands, followed by the CDC– Obama’s CDC– telling one of them it was OK to fly. And then– praise Saint Reagan in heaven– she flew to Cleveland, in Ohio, a major contested state. It writes itself: Obama is trying to kill Ohio. Our guys are already ordering furniture for their new Senate office spaces.”

    “More? Obama appoints some guy as ‘Ebola Czar” who has no medical experience. What, was Dr. Oz not taking calls? Yeppers, nothing inspires people to have faith in their leaders like choosing a bureaucrat they never heard of to save their very lives. And that bit about Secretary of State Kerry having to get involved in trying to get Belize to allow our ‘Ebola Cruise Ship’ permission to dock, and then failing? Right again, seeing old Mr. Muppet stumble makes our lives here in the Republican party easier and easier. That stuff screams incompetence. Heck, we should have carpet bombed Belize in retaliation.”

    “Travel ban from Africa?” said the chairman. “Yeah, we talk a tough game but we’d be opposed to marshmallows and hot chocolate if the Democrats came out in favor. No, no, no, we don’t want a travel plan. Bring us a bunch of infected Liberians. If say a couple of thousand American get sick with the ebola, 99 percent of healthy America votes for us, fish in a barrel. Maybe we’ll get some redneck to hold a benefit concert or whatever.”

    “Am I cynical? I don’t even know the meaning of that word. Fear is our best business tool, and friends, business is good. I’m seeing us ride this wave of paranoia and hysteria all the way!”



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

    Posted in Democracy

    Can the US Seize Would-Be Jihadis’ Passports?

    October 24, 2014 // 1 Comment »




    The person who shot up the Canadian Parliament had had his passport taken away by the Canadian government, ostensibly to prevent him from traveling to Syria to join ISIS


    Can the U.S. government seize the passports of American citizens who it believes may travel abroad to join ISIS or other terror groups? Yep. The process is almost no-cost to the government, extra-judicial, can be made secret and requires a lengthy court process to even try to contest. No passport, no international travel, the ultimate no-fly tool against would-be jihadis. So why hasn’t this process been used more often?


    Scary Stories

    Leaving aside the not-insubstantial questions about their validity, the warnings are ominous.

    With some Americans seeking to join ISIS, there are fears that on their return they may commit terror in the U.S. Unlike foreign citizens, these radicalized Americans would sail through immigration checks and be able to easily disappear into a familiar society. The U.S. is seeking to tackle the problem at the supply end, preventing Americans from departing to join ISIS in the first place, as well as from the other side, blocking citizens from returning freely to the United States.

    The arrest at O’Hare airport of Mohamed Khan, a 19-year-old U.S. citizen, is one example. Authorities claim the young man headed to the Middle East to join ISIS, and, citing a left-behind note explaining his choice, waited at the airport to arrest Khan on charges of attempting to provide material support for a terrorist organization. The operation involved significant law enforcement resources to stop one teenager based largely on suspicion.


    Another Tool in the Box

    The United States can simply seize passports from American citizens if “The Secretary of State determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.”

    The law allows this prospectively, the “or are likely to cause” part of the law, meaning the person needn’t have done anything. The government just needs to think they might.

    A Judicial Watch Freedom of Information Act request revealed that prior to Obama ordering him and his 16-year-old son to be killed by a drone in 2011, then-Secretary of State Hillary Clinton secretly revoked the passport of Anwar al-Awlaki, alleged al Qaeda propagandist and U.S. citizen. The two would not have been able to travel to the United States without handing themselves over to law enforcement. Indeed, a letter to that effect was allegedly sent to some address in Yemen inviting al-Awlaki to visit the American Embassy to discuss the details.

    Al-Awlaki isn’t the only person in Yemen to have his U.S. passport seized.

    According to information obtained through a U.S. government whistleblower involved directly with U.S.-Yemeni affairs, the American embassy in Sanaa, Yemen seized over one hundred U.S. passports from Yemeni-Americans (some place the number at 500 passports) between 2011 and 2013. Only after several legal battles did the State Department curtail its actions. Though State publicly claims the seizures were an anti-fraud measure, many in the Yemeni community saw them as a pilot program.

    A similar case involved the seizure of a Moroccan-American’s passport in Kuwait.

    The actions at the American embassy in Yemen may fit into a larger pattern. For example, at the same time in 2011 the U.S. was ramping up its actions against Yemeni-Americans, Australia appeared to be doing much the same thing. “Withholding passports is an important means of preventing Australians from traveling overseas to train, support or participate in terrorism,” an Australian government spokesperson said. “It may also be used to help prevent an Australian already overseas from participating in activities that are prejudicial to the security of Australia or another country.”


    How are Passport Seizures Legal?

    Restrictions on travel suffered under the British were part of the list of “injuries and usurpations” in the Declaration of Independence. So don’t Americans have a right to travel?

    Nope. The precedent was set by infamous ex-CIA officer Philip Agee, who in the 1970′s exposed CIA officers identities. It was in Agee’s case that the Supreme Court coldly affirmed that “The right to hold a passport is subordinate to national security and foreign policy considerations.” A lower court put it even more bluntly: “The Secretary [of State] may preclude potential matches from the international tinderbox.”

    The basic premise is that travel abroad (travel within the U.S. is specifically provided for in the Constitution, though the No-Fly list certainly can limit one’s options) is that it is an “aspect” of liberty subject to restraint under due process. In the 1950’s, American Communists were often denied passports if their travel abroad was believed to be in support of their political beliefs, a policy later overturned by the Supreme Court. The Court struggled to balance national security and personal liberty regarding travel through multiple cases, but has never concluded that travel– or having a passport– is a fundamental right.


    Some History

    The whole concept of Americans requiring passports to travel has its roots in national security restrictions. With the exception of roughly the years of the Civil War and World War I, Americans did not need a passport to enter the United States. Americans were first required as a group to hold passports at the start of the Second World War. The travel requirements instituted in the past only during times of national crisis stuck around after WWII through the present day, formalized in the Immigration and Nationality Act of 1952. With echoes of current government actions, what was created as a wartime contingency morphed into a permanent peacetime restriction. The history of passport restrictions is not long, but does resonate into the post-9/11, Post-Constitutional era.

    While no right to travel per se exists for Americans, there is a basic assumption, rooted in the Citizenship Clause of the Fourteenth Amendment and the due process clause of the Fifth Amendment to the Constitution that Americans have something between an expectation, an entitlement and an implied right to return to the United States from abroad, rooted in the concept of citizenship. The ease with which passports can be seized (or boarding an aircraft denied via the No-Fly list) is not seen in conflict; in al-Awlaki’s case, he would have been welcome to come home, albeit in leg irons en route to federal SuperMax. Time is also an issue. How long the government may make a citizen wait before allowing a return to the U.S. under some specific circumstances is not codified and thus can be used as a de facto seizure or punishment without raising a case publicly.


    Why Doesn’t the Government Seize More Passports?

    In short, for an American citizen to travel abroad, whether for vacation or jihad, the government’s permission, in the form of a passport, is required. So why then does the government not use such a long-tested authority to deny or seize the passports of those suspected for traveling to join terror groups?

    While the real answer is obviously unknowable, several ideas may help explain this. First is that in fact such measures might be taking place. Persons who have not yet applied for a passport may find themselves denied issuance, and applications may have been denied or “in processing” without the applicant knowing the reason. The government is under no obligation to tell the person involved nor the media that national security has been invoked.

    More likely however, it is a matter of legal timidity and public relations. Arresting and trying someone for material support for terrorism is something of a set-piece case for post-9/11 law enforcement. There is little legal controversy generated, and almost no danger under present circumstances of any nasty precedent being set. Wide-spread passport seizures could easily create a new chance to bring the issue before the Supreme Court, risky business for a government that much prefers to act as it wishes vis-vis American’s rights.

    The other reason for restraint may simply be public relations. The public is familiar and appears supportive of arrests. Law enforcement in these circumstances are the good guys. Passport seizures sound a bit harsh, totalitarian-like, and are technically done under the authority of the Department of State, who does not enjoy the good guy reputation many attribute to the law enforcement people who “keep us safe.” It could be as simple as law enforcement not being willing to work with the State Department for bureaucratic reasons.

    Regardless, these are dark seas. In a democracy, the right of citizens to depart and return should not on its face be restricted in the interest of the government. The idea of limiting an American citizen’s travel proactively, on the assumption that she or he will end up fighting with ISIS based on documents or web postings, scrapes at liberty, even if the tools are there and it is legal to use them.



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

    Posted in Democracy

    Local LE Chipping Away at the Fourth Amendment

    October 23, 2014 // 1 Comment »

    bill-of-rights


    The Bill of Rights was designed to protect the People from their government. That’s quite literally becoming history today as new challenges, now from local law enforcement, chip away at the Fourth Amendment’s protections of privacy. New laws and devices spread spying on Americans to the local level.

    A Brief Explanation of Post-Constitutional America

    The cornerstone of the Bill of Rights was that the People grant exceptions to those rights to the Government. Absent those specific exceptions, the rest of the stuff was inalienable, not up for grabs, not dependent in any way on Government’s decision to grant or withhold them. Constitutional America was clearly imperfect, but the underlying premise spoke of a striving toward an ideal.

    The cornerstone of Post-Constitutional America is just the opposite. The People have what rights the Government chooses to allow them to have, such that privacy is the exception, free speech a variable, torture a tool to be used or withheld as the Government finds appropriate. It is a turning on its head of Constitutional America, back to a time when a tyrant and king (may we call old King George an “evil dictator” to use the preferred language of today?) controlled Americans’ daily lives by decree.

    It should be unnecessary to have to argue the critical importance of the Fourth Amendment, but these days it seems necessary. If the First Amendment’s right to speak out publicly was the People’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. Privacy is the right to think without the Government intruding. It is part of being American. If you want to personally give it away for yourself, feel free, but you are required to allow others to exercise it.

    9/11 Changed Everything

    Under the umbrella of post-9/11 fear, the relationship between the Government and the People of the United States changed. As early NSA whistleblowers Thomas Drake, Bill Binney, Kirk Wiebe and others made clear, within days after the attacks, the vast capability of the NSA was turned 180 degrees away from sites abroad toward a new definition of the People: we were now targets.

    Such acts, along with flimsy pieces of faux-legislation such as the Patriot Act, were not only harmful to our privacy by themselves, they also sent clear signals to law enforcement at all levels that new rules applied; after all, if the federal government was spying on Americans in clear contrivance of the Fourth Amendment, then why couldn’t local law enforcement do the same? With such tacit approval, and the redefining of every person in America as a potential terrorist, it all fell into place.

    So while the Snowden NSA revelations expose violations of the Fourth Amendment on the largest scale, let’s examine some examples of how those big-scale acts filter down to local levels.

    Los Angeles

    In 2008 the city of Los Angeles passed municipal ordinance 41.49 requiring hotels to gather, hold for at least 90 days and make available upon request a large amount of information on their guests. The information included guests’ credit card number, home address, driver’s license information and vehicle license number. Several dozen other cities, including Atlanta and Seattle, passed similar ordinances.

    Ordinarily the police would need to show probable cause, and to seek individual warrants on a person-by-person, case-by-case basis, to gather such information. The L.A. ordinance, however, allows police to simply demand it from a hotel, with no judicial or other oversight. The premise was that the information was the property of the hotel once the guest voluntarily surrendered it in order to stay the night. Personal information transformed into “business records,” L.A. argues, is inherently less “private” than personal information per se.

    Similarities to how the NSA collected mountains of phone call data from places like Verizon, claiming it too was simply now part of business records routinely available per the Patriot Act, are noted.

    The U.S. Supreme Court, after two opposite rulings through lower courts, has agreed to hear the case after the City of Los Angeles’ petition to do so. L.A. claims “These laws expressly help police investigate crimes such as prostitution and gambling, capture dangerous fugitives and even authorize federal law enforcement to examine these registers, an authorization which can be vital in the immediate aftermath of a homeland terrorist attack.”

    In addition to the clear, broad Fourth Amendment violations, opponents cite the reality that information, once gathered, can be disseminated anywhere for any purpose. Data gathered in L.A. for a perhaps legitimate gambling investigation can go on to populate an infinite number of databases indefinitely for an undeterminable range of purposes into the future. It does not go away. It waits to be used.

    And all that brings us to Virginia.

    Virginia Police Collect and Share Phone Data

    Five local police departments in southeastern Virginia have been secretly and automatically sharing telephone data and compiling it into a large database for nearly two years. According to a 2012 memorandum of understanding published for the first time this week by the Center for Investigative Reporting (the database had been kept secret from the public,) the police departments from Hampton, Newport News, Norfolk, Chesapeake, and Suffolk all participate in something called the “Hampton Roads Telephone Analysis Sharing Network.”

    Those police departments “agree to share telephone intelligence information derived from any source,” including subpoenaed telephone call detail records, subpoenaed telephone subscriber information, and seized mobile devices. The telephone intelligence information will be stored in the master Pen-Link telephone database and participating agencies can make inquires of the database by either telephone or e-mail contact with a member.”

    Such data transfers, the document goes on to explain, can happen automatically if the agency agrees to have certain software installed on their computer, or via e-mail or DVD. No information is available as to what, if any, data security protocols are in place.

    The significance of such data transfer cannot be underplayed. The assumption by the police is that any data gathered legally– for example, under warrant, after a showing of probable cause specific to a case or incident– can then be stored, shared and repurposed forever as the police see fit. The shaky legal premise for this whole system is that once taken in via some sort of legal means (though of course there is no outside control that all of the data was gathered legally), the data becomes akin to common property, and no further justification or judicial oversight needs to be applied to its use, any use, ever, forever.

    An even shakier legal premise it that a secret database of any kind can be maintained by the police: Virginia law, The Government Data Collection and Dissemination Practices Act, specifically states “There shall be no personal information system whose existence is secret.”

    Not an End in Sight

    Local actions have commonalities with the larger actions the NSA has been doing. The use of the collective where the law intended the individual– a single phone call versus redefining every call as a single set of business records– is clear. The manipulation of a legal act, such as collecting information via a warrant and then repurposing it into a general pool of data in Virginia, is also a marker of modern times. The most significant commonality between local actions and federal ones is the broad contempt for civil liberties. And that describes Post-Constitutional America as clearly as anything else.

    The examples above are, or likely soon will be, going to be tested in court. Other offenses to the Fourth Amendment have fallen to the People’s side: In 2012, a court ruled law enforcement authorities generally need search warrants when they attach GPS devices to a vehicle. In July 2014, the Supreme Court said that the authorities need warrants to dive into the mobile phones of people they arrest.

    At the same time, the proliferation of low-cost surveillance devices, such as license plate scanners and Stingray, continue to raise new questions even as a handful of older ones are resolved. The battle against the tyrant King George continues.



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

    Posted in Democracy

    The State Dept. Says I Shouldn’t Write This

    October 17, 2014 // 7 Comments »




    (Friday) The State Department says I shouldn’t write this article. They have regulations that tell former employees like me what we should and should not say, and that’s wrong in America.

    As some readers may know, I am former employee of the Department of State, and after publishing a book critical of State’s efforts in the previous Iraq War We Meant Well, I was subjected to a year of legal battles, including threat of prosecution.

    But standing up for your rights is a part of having those rights. A free society is based on a marketplace of ideas, that free speech thing we all learned about in civics class. We all need to hear from all sides to become the “informed citizenry” that Thomas Jefferson said was so essential to a democracy. And who better to enlighten the public about how their government really works than former federal employees, the people who were on the inside, now private citizens?


    It would be wrong then for a former employer, as codified into its agency regulations, to expect its retirees to “refrain from engaging in activities of any kind, including writing manuscripts or giving speeches, which would be prejudicial to the foreign policy interests of the United States.” But that is exactly what the U.S. Department of State does.

    They even wrote it down, stating (emphasis added):

    Former employees are expected to refrain from engaging in activities of any kind, including writing manuscripts or giving speeches, which would be prejudicial to the foreign policy interests of the United States.

    Former employees are encouraged to make public appearances and write manuscripts for unofficial publication which constructively contribute to the interests and objectives of the Department of State and the Government.

    So let’s get this straight. Private citizens, who happened to once work for the State Department in some capacity, perhaps not even one directly connected to policy issues, are expected to not say anything in a public forum against the interests of the United States? And they are encouraged to say things that contribute to the objectives of the Department of State? Just ’cause?


    Though this all smacks of some sort of Orwellian attempt to coerce, er, expect, a class of private citizens to propagandize, um, engage in activities, that use their authority and reputation as former State Department employee to promote only the side of a discussion that supports the government’s position, I’ll play along. I have to right, as a Good Citizen?

    But I think the problem will be in how the State Department and I might differ on just what the “interests and objectives of the Department of State and the Government” are that I am told because I once worked there I must support.

    But let’s start with something we can agree on. The State Department’s Mission Statement says in part that the agency should seek to “Shape and sustain a… democratic world.” I agree.

    But I disagree that admonishments to spew the government line as a private citizen, as State wants, contribute to that goal. Instead, I believe that exercising my First Amendment rights as a private citizen contribute much to democracy. Any exercise of rights strengthens a democracy, the same as any attacks on those rights diminish it. Bleating out the party line is for countries ruled by parties. Did you know that North Korea’s interests and objectives include claiming Kim Il Sung invented the television? I guess their former employees are encouraged and expected to write nice things in comments on YouTube and stuff about that.

    Welcome to another episode of Post-Constitutional America, where the old rules do not apply. See something, say something, unless you used to work for the State Department and what you say does not agree with the government’s version of things.

    But oh! Some feel that is too much, too dramatic. Fair enough. The whole problem is not that State can ever enforce these rules– they can’t– it is that they exist as a testament to how they think. It’s that whole idea of “loyalty” above all else, and of course the hypocrisy of saying how important dissent is while trying very hard to stifle it. At the end of the day such things erode employees. So many just kind of give up and stop caring too much about what they do and just glide through the motions.



    BONUS: The same section of regulation quoted above also says “The State Department will be glad to furnish, upon request, advice, assistance, and copies of printed publications to former employees who wish to obtain information on particular subjects.” Or not. I have asked State for comment and “advice” on these regulations and have not received any response.

    FYI: State has not contacted me personally about anything I have written. This article is based on State’s regulations. Whether currently enforced in some way or not, their existence is reason enough to call out.





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

    Posted in Democracy