Fire Dog Lake blogger Ohio Barbarian posted this review of Ghosts of Tom Joad: A Story of the #99 Percent (emphasis added).
Yes, I know this book was featured on the FDL Book Salon back in May. I didn’t read that live; only skimmed it after the comments were closed, and I probably wouldn’t have commented on it anyway, but when I saw Ghosts of Tom Joad, a Story of the #99Percent at my local public library, I thought I’d check it out.
I’m glad I did. It’s a great book and, in my ever so humble opinion, it is every bit as powerful as the classic John Steinbeck novel to which it refers.
Set in a fictional small town in Ohio, home of a shuttered glass factory and a shattered American Dream, the protagonist, Earl, is a high school football player who graduated around 1977. He’s not exactly a sympathetic character, at least not to me. He’s basically an ignorant jock who did as little school work as possible, then dropped out after he got hurt in the middle of dumb teenage jock roughhousing, couldn’t play anymore, and went to work in the same factory where his World War II vet grandpa and his Korean War vet dad had worked before him.
He starts out, at least, as the prototypical “small town small mind” my mother and then later myself always despised. By that I mean someone whose whole world is his little town, who never really wanted to go anywhere else, and was mostly incurious about the rest of the planet. Someone who just assumed if he didn’t get some miraculous football scholarship, he’d spend his life working at the factory, get married, and raise kids in the same little town just like his recent ancestors, and that was fine by him.
In other words, he’s who Nixon’s cabinet secretary Earl Butz was referring to when the latter said, “All the average American wants is cold beer in the fridge and a warm place to shit.”
Of course, being in a Rust Belt midwestern town, our Earl is laid off after just a few months, and quickly spirals down from one McJob to the next to Bullseye, a retail store clearly modeled by the author on Wal-Mart, to more McJobs to temp work to day labor to homelessness and despair.
Van Buren takes an interesting approach, making the whole story a series of flashbacks while Earl is riding on the city bus, which is sometimes real and sometimes metaphysical, or at least metaphorical.
I didn’t find most of the characters all that sympathetic or even likable, but that’s not necessary in order to empathize with them, at least not for me. Like Steinbeck did with The Grapes of Wrath 74 years ago, Van Buren creates a world where selfishness and greed on the part of a few has caused despair and sometimes sheer hopelessness on the part of the many, and he makes it real. I think it’s quite an accomplishment.
My favorite parts of the book are astute observations by various characters about the deliberate destruction of America’s social, economic, and even moral sustainability by the top 1% for fun and profit, and the often subconscious collusion they get from most of the rest of us because of how we’ve been told to think since birth. My very favorite is, “It ain’t about left and right anymore, it’s about up and down.” A close second is “This was no accident, no invisible hand…we changed from a place that made things…into a place that just makes deals. Making things creates jobs, and jobs create prosperity. Making deals just creates wealth for the dealers.”
Indeed. There’s more, much more, and the book is well-written and an easy read. I highly recommend it. In fact, it should be mandatory reading in public high schools and universities.
Note: Though I also write for the site Fire Dog Lake, I do not know the author of the review, and have never met him/her.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
One of the exceptional things about Post-Constitutional America is how instead of using the traditional tools of an autocracy– secret police, torture, mass round ups– the majority of Americans have given up their rights willfully, voluntarily, almost gleefully. The key tool used by government to have accomplished this is fear-mongering.
Fear is one of our most powerful emotions. It plays a very important evolutionary role after all; the first folks who learned to fear lions and tigers and bears tended to live longer than those who were slower learners. Fears from childhood about heights or spiders often stick with us forever. So using fear of terrorists and other bogeymen has proven to be the most effective tool of the world’s first voluntary national security state and its coalition partners in scariness.
The post-9/11 months are nothing but a master class in fear-mongering. Condoleezza Rice’s oft-quote statement about not wanting to wait for a mushroom cloud over America to be the smoking gun of terror is near-Bond villain level evil genius. The 2003 Iraq War was sold in large part on fear-mongering over fake nukes, fake biological weapons and a fake hunt for WMDS.
A few recent examples illustrate how the work continues. Because nothing is better to keep fear alive than a regular flow of refreshers (watch out behind you, a spider!).
The Australians have proven excellent students of the American model. After a single phone call from one purported jihadi in the Middle East to a purported jihadi in Sydney suggesting a random beheading would be a fine terror act, the Aussies kicked off the largest counterterrorism operation in Australian history, with full world-wide media coverage of course, all of which resulted in the arrest of one 22-year-old. Prime Minister Tony Abbott said it showed that “a knife, an iPhone and a victim” were the only ingredients needed for a terrorist attack.
B.S. Factor: Between 2009-2010 (last statistics located) 257 Australians were killed domestically, many with knives. None of those cases involved the largest manhunts in Australian history. Drunken dingos seem more a threat to citizens than terrorists, perhaps even with an iPhone and a knife for the dingo.
The British are loosely joining the coalition against ISIS in Iraq, based largely on the beheading video of a single Brit hostage (beheading videos of two American hostages have also been an effective fear-mongering tool in the United States recently.) Since most westerners do not visit the Arabic-language web sites where such videos widely appear, this form of fear- mongering requires the assistance of the main stream media, who appear more than happy to assist by re-running the videos in an endless loop.
B.S. Factor: In 2013, 6,193 Brits died abroad. Very few cases even made the news in a small way.
Back here in the U.S., higher-level encryption built directly into the new iPhone caused much concern among law enforcement, who will have a harder time mass-monitoring the communications of all Americans as they have freely done for the past decade or so. FBI Director James Comey at a news conference already focused on ISIS terror threats said “What concerns me about this is companies marketing something expressly to allow people to hold themselves beyond the law.” He cited specifically kidnapping cases, in which exploiting the contents of a seized phone could lead to finding a victim, and predicted there would be moments when parents would come to him “with tears in their eyes, look at me and say, ‘What do you mean you can’t’ ” decode the contents of a phone.
B.S. Factor: We could find no statistics on how often decoding the contents of a phone alone resolved a kidnapping case. We also note that even if the FBI or the NSA could not actually break the iPhone encryption, existing, working tools unaffected by encryption such as triangulation geolocating, standard GPS, cell tower tracking, Stingray intercepts, call logs, email logs, cloud contents, and web searches can provide a wealth of data remotely, without even the need to seize a physical phone.
OMG: Americans May Be Killed By Terrorists
Obviously the uber fear-mongering are the pervasive streams of warnings about “almost executed” terror plots inside America. Whether told “if you see something, say something” on a bus, strip searched in the airport or hearing about one pseudo-plot after another on the news, the meme is that danger lurks everywhere in the United States.
B.S. Factor: Since 9/11, as few as 16 Americans here in Das Homeland has been killed by terrorists, almost all fellow Americans. On the high end, some claim the death count is about 100, but that includes murders at abortion clinics not everyone would call terrorism as far as traditional government fear-mongering is concerned.
Maybe more terrifying than anything else, in America you are eight times more likely to be killed by a police officer than by a terrorist. That’s a broad average; it is higher if you are a young African-American male.
To be fair, fear-mongering in general, and fear-mongering over terrorism, have a much longer history of use by autocrats than what has been employed since 9/11. One national leader in fact said “The easiest way to gain control of a population is to carry out acts of terror. The public will clamor for such laws if their personal security is threatened.” That was Joseph Stalin.
So yes, there is indeed much to fear.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
You see, Ray just beat down, in court, Hillary Clinton, the State Department, and a small part of Post-Constitutional America.
Who is this Guy?
McGovern is a changed man. He started out in the Army, then he worked for the CIA from the Kennedy administration up through the first Bush presidency, preparing the president’s daily intel brief. He was a hell of a spy. McGovern began to see the evil of much of the government’s work, and has since become an outspoken critic of the intelligence world and an advocate for free speech. He speaks on behalf of people like Julian Assange, Chelsea Manning and Edward Snowden.
Ray McGovern was put on the State Department’s Diplomatic Security BOLO list– Be On the Look Out– one of a series of proliferating government watch lists. What McGovern did to end up on Diplomatic Security’s dangerous persons list and how he got off the list are a tale of our era, Post-Constitutional America.
Offending the Queen
Ray’s offense was to turn his back on Hillary Clinton, literally.
In 2011, at George Washington University during a public event where Clinton was speaking, McGovern stood up and turned his back to the stage. He did not say a word, or otherwise disrupt anything. University cops grabbed McGovern in a headlock and by his arms and dragged him out of the auditorium by force, their actions directed from the side by a man whose name is redacted from public records. Photos (above) of the then-71 year old McGovern taken at the time of his arrest show the multiple bruises and contusions he suffered while being arrested. He was secured to a metal chair with two sets of handcuffs. McGovern was at first refused medical care for the bleeding caused by the handcuffs. It is easy to invoke the words thug, bully, goon.
The charges of disorderly conduct were dropped, McGovern was released and it was determined that he committed no crime.
But because he had spoken back to power, State’s Diplomatic Security printed up an actual wanted poster citing McGovern’s “considerable amount of political activism” and “significant notoriety in the national media.” Diplomatic Security warned agents should USE CAUTION (their emphasis) when stopping McGovern and conducting the required “field interview.” The poster itself was classified as Sensitive but Unclassified (SBU), one of the multitude of pseudo-secret categories created following 9/11.
Violations of the First and Fourth Amendments by State
Subjects of BOLO alerts are considered potential threats to the Secretary of State. Their whereabouts are typically tracked to see if they will be in proximity of the Secretary. If Diplomatic Security sees one of the subjects nearby, they detain and question them. Other government agencies and local police are always notified. The alert is a standing directive that the subject be stopped and seized in the absence of reasonable suspicion or probable cause that he is committing an offense. Stop him for being him. These directives slash across the Fourth Amendment’s prohibitions against unwarranted search and seizure, as well as the First Amendment’s right to free speech, as the stops typically occur around protests.
You Don’t Mess with Ray
Ray McGovern is not the kind of guy to be stopped and frisked based State Department retaliation for exercising his First Amendment rights in Post-Constitution America. He sued, and won.
The Partnership for Civil Justice Fund took up the case pro bono on Ray’s behalf, suing the State Department. They first had to file a Freedom of Information Act demand to even get ahold of the internal State Department justifications for the BOLO, learning that despite all charges having been dropped against McGovern and despite having determined that he engaged in no criminal activity, the Department of State went on to open an investigation into McGovern, including his political beliefs, activities, statements and associations.
The investigative report noted “McGovern does seem to have the capacity to capture a national audience – it is possible his former career with the CIA has the potential to make him ‘attractive’ to the media.” It also cited McGovern’s “political activism, primarily anti-war.” The investigation ran nearly seven months, and resulted in the BOLO.
With the documents that so clearly crossed the First Amendment now in hand, the Partnership for Civil Justice Fund went to court. They sought, and won, an injunction against the State Department to stop the Be On the Look-Out alert against McGovern, and to force State to pro-actively advise other law enforcement agencies that it no longer stands.
McGovern’s constitutional rights lawsuit against George Washington University, where his arrest during the Clinton speech took place, and the officers who assaulted and arrested him, is ongoing.
Watch Lists in Post-Constitutional America
McGovern’s case has many touch points to the general state of affairs of post-9/11 government watchlists, such as No-Fly.
The first is that it is anonymous interests, within a vast array of government agencies, that put you on some list. You may not know what you did to be “nominated,” and you may not even know you are on a list until you are denied boarding or stopped and frisked at a public event. Placement on some watchlist is done without regard to– and often in overt conflict with– your Constitutional rights. Placement on a list rarely has anything to do with having committed any actual crime; it is based on the government’s supposition that you are a potential threat, that you may commit a crime despite there being no evidence that you are planning one.
Once you are on one watchlist, your name proliferates onto other lists. Getting access to the information you need to fight back is not easy, and typically requires legal help and a Freedom of Information Act struggle just to get the information you need to go forward. The government will fight your efforts, and require you to go through a lengthy and potentially expensive court battle.
We’ll address the irony that the government uses taxpaying citizens’ money to defend itself when it violates the Constitutional rights of taxpaying citizens another time.
Donating to The Partnership for Civil Justice Fund
Persons wishing to donate to The Partnership for Civil Justice Fund may do so online. I have no affiliation with the organization and do not benefit in any way from donations.
Full Discloure: I do know and respect Ray McGovern, and was once the subject of a State Department Be On the Lookout Alert myself, following these remarks I made about Hillarly Clinton. I have been unable to ascertain the status of my own BOLO alert but believe it is no longer in force. The State Department refuses to disclose any information to me about my status.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
The searches would often be destructive, and intended so. Some of the time the point was to seize incriminating “revolutionary” materials, many times the point was simply to harass and threaten people the Crown feared and wanted to send a message to. It was in direct response to such invasions of freedom that the Founders wrote in the Fourth Amendment “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”
Posse Comitatus Act
Fast-forward to 1878, in the Constitutional America Era, when, in the wake of the Civil War, the Posse Comitatus Act was passed into law. The Act limit the power of the federal government to use the armed forces of the United States to enforce state laws, though the general interpretation evolved to limit severely the use of federal troops for law enforcement purposes.
While both Bush and Obama weakened the Act to allow for troops to deploy (Bush) domestically and arrest civilians (Obama) in the wake of terrorist acts, the general idea remains intact. There are plenty of law enforcement agencies, local and federal, around to enforce the law. When the home town cops can’t handle it, the FBI can step in, not the military.
Old Rules Do Not Apply
Despite that clear background, it comes as little surprise that here in Post-Constitutional America, the old rules do not apply, even on a small scale.
Yet in perhaps a tiny but significant decision, an appeals court ruled federal authorities had shown “a profound lack of regard for the important limitations on the role of the military in our civilian society” when they allowed the U.S. Navy to scan the computers of every citizen in the state of Washington fishing for evidence, any evidence of any crime, that could be turned over to local cops. The court so wished to admonish the Navy’s Criminal Investigative Service (NCIS) for overstepping regulations that have evolved from the Posse Comitatus Act that it took the unusually strong step of excluding the computer evidence in any new trial of a child pornographer. “The extraordinary nature of the surveillance here demonstrates a need to deter future violations,” said the ruling.
What happened? An NCIS investigator charged with online surveillance allegedly to protect naval facilities in Washington state, determined that his scope included electronic monitoring of the whole state and its entire civilian population. Since Navy families had kids, and/or because Navy personnel could be child pornographers, the NCIS argued extending the surveillance away from terrorism to scanning for kiddie porn had a legitimate military-related purpose. It is unclear if the employee acted on his own with no supervision, or acted under orders; neither is a good scenario.
The NCIS spook set loose in Washington state with a computer tool called RoundUp on the Gnutella peer-to-peer network known to be favored by child pornographers to exchange illegal images. Gnutella allows a direct connection between multiple personal computers in lieu of a single server, so that tracking down and eliminating the “source” of files is much more difficult. The RoundUp software (a similar product is called GridCop) identifies computers on a peer-to-peer network by their individual Internet Protocol (IP) addresses. Investigators then work backwards to determine which service provider (such as Verizon) hosted the IP address and subpoena the provider for the name and address of the account holder. Investigators can then apply for and execute a search warrant for the computer and arrest the owner.
Tech Point: RoundUp works by detecting known child porn files that have been identified in investigations based on cryptographic hash algorithms, or hash values, which are unique numeric identifiers generated based on the content of digital files. Duplicate files will usually have the same hash value even if users rename files.
The FBI and local cops are doing this kind of thing all the time; the big deal in this case is that the agency at work is the U.S. Navy, which, under Posse Comitatus, is not supposed to be involved in such law enforcement. That is the illegal part, and the part that raises serious questions in an already nasty Post-Constitutional environment about what parts of the body of law the federal government will follow, and which parts it will ignore. That is not how a democracy works.
More on the Specific Case
The short version is that after actively monitoring the entire state for well, whatever it could find, the NCIS found one alleged child pornographer.
NCIS gathered evidence, turned it over to local police, who obtained a warrant based on the Navy search to legally “reacquire” the evidence (see also parallel construction, where the NSA and DEA use a similar illegal process.) The owner of the computer was convicted of possessing and distributing child pornography, and is now serving an 18 year sentence at a federal prison. He appealed, claiming the evidence against him was obtained illegally, and the court threw the evidence out. The case will likely be retried. Without the actual evidence of child porn images, prosecutors have little to work with. The feds may appeal the decision. The convicted man remains in jail
Nobody likes child pornographers. As a parent, I wish every one of them would be fully, legally prosecuted and punished. But before you say “Well, NCIS did a bad thing, but in the end a child pornographer may be let off scot-free, which is worse” remember it was in fact the illegal acts of the NCIS that tainted the evidence and which themselves will see the guy walk if that is what happens. Bad law enforcement does not create good results. Walking all over the law to enforce it does little good for our society, and outright contempt for the law, as exhibited by NCIS, is evil in a society that once claimed to be a democratic example to others of the rule of law.
“Letting a criminal go free to deter national military investigation of civilians is worth it,” the judge in this case wrote. “[This] amounts to the military acting as a national police force to investigate civilian law violations by civilians.”
Deterrence may indeed be the order of the day. The NCIS case above surfaced only after the specific person convicted appealed, and had legal help smart enough to ask where the evidence against him came from. We know nothing about the extent of NCIS spying on civilians in Washington state, whether or not this is NCIS policy, and whether or not such spying, rogue or not, takes place in other states with military facilities. The NCIS employee at fault in Washington did say a colleague in Georgia was doing the same thing, so there is reason to wonder outside of just raw speculation. Those might have been good questions for the judges who decided the case, or the journalists who covered it, to ask.
As for the NCIS, a spokeswoman declined to talk about whether the service has undertaken similar wide searches for child pornography offenders in other states with a significant Navy presence, like Florida, Virginia or California.
Lastly, there are law enforcement agencies directly charged with hunting down child pornographers, armed with the same tools or better than NCIS. The FBI comes to mind. So where were they while one NCIS person was free-lancing an assault on the Posse Comitatus Act and the Fourth Amendment?
The people I am talking about in my book Ghosts of Tom Joad: A Story of the #99 Percent seem illusive here on the East Coast; in New York, visiting the South Bronx, there are plenty of poor people. The sense in Midtown was that if they didn’t deserve to be poor, then, well, they were sort of naturally thrust into it as immigrants, as drug users, simply because they lived in a poor part of the city and it always would be. Kind of the natural ecology of the place.
In talking to people in New York the working class tends to appear as caricatures, like Joe the Plumber in interior America was to politicians, the people of Brigadoon for elections, who then fade after the candidates grab votes promising new jobs and manicured optimism for a working class that somehow still listens to them. It’s inconveniently convenient to walk among them every four years, like having to be nice at your in-laws’ house for a family gathering. Ok as long as it doesn’t drag on too long.
The View from Ground Zero
The story is different when I talk in Kansas, Kentucky or Ohio. People there nod their heads, and everyone has a story to add: the family that lost their home to the bank, the factory that closed down and the retail outlets that replaced the factory that closed down, one after another piling up like the late spring snow we had that week. People say “But I’ll take any job. I just want to work. I’m not too proud to get my hands dirty. I still know how to sweat, the good kind.”
I believe them all. But even if they’ll accept minimum wage, how far is a couple of dollars an hour throwing construction debris into a Dumpster going to get you? Better than nothing but not much better. You going to do ten hours of labor for the phone bill? Another ten for the groceries each week? Another 20 or 30 for a car payment? How many hours you going to work? How many can you work? Nobody can make a full living doing those jobs. You can’t raise a family on minimum wage. And you can’t build a nation on the working poor. It is a rough portrait of an American past and a tough vision to push into an American future.
But my goal isn’t to speak in broad terms; I want to understand what’s happening on an almost documentary level. So what stood out was the proliferation of a new, New Economy, one designed to prey on the fact that people who don’t deserve to be poor are now poor. There are whole industries that sprang up because poor people became a new market.
Pawn shops are an old business, but one that has grown alongside the working poor. In 1911, there were only 1,976 licensed pawnbrokers in the country. By 1988, there were 6,900 pawnshops in the U.S. (one for every two commercial banks) and in 2012 there were almost 14,000 pawnshops in operation throughout the United States.
Pawn shops are one thing, but there are newer predators on the ground. I ended up buying Kenny’s story for two cups of coffee. Kenny told me that he couldn’t qualify for a credit card, the middle class’ old way of borrowing money. Average people with cards carry monthly balances of almost $16,000 and that’s at 12 to 15 percent interest, so not a helluva lot different from payday loans. Just looks cleaner. Kenny told me about the trap of the rent-to-own stores, who let people without a credit card rent a TV or a washer and dryer until they paid back a lot more than the appliance is worth. It was more like time payments than rental as most people used to understand the word. By the time you owned the appliance, it was old, and with interest you dropped $450 on a $200 item. You needed something and there wasn’t any other way to get it.
Rent-to-Own is a big, big business. According to Broke, USA: From Pawnshops to Poverty, Inc. – How the Working Poor Became Big Business by Gary Rivlin, the largest rent-to-own operation, Rent-A-Center, reported three billion dollars in revenues in 2008. The bottom line has only gotten stronger for them since.
Kenny even said he’d tried to cash in on it for himself, working briefly for a collections agency. When folks could not pay, the debt got sold down the line. Some big bank wasn’t going to fuss over small change, so it sold the ownership of the debt to a big agency, who sold it to a smaller one like he worked for, a place that might see profit in getting 20 percent of a two hundred dollar collection. At those rent-to-own joints, customers have to sign tons of papers, all looking like they were written by a Keep Lawyers Employed committee, so that if you miss a payment the store takes back the whole appliance, not just the half they still own.
This scared the people renting, but actually the last thing that company wanted was to repo a two-year-old TV, so Kenny’s job was to knock on the door and try to get them to pay something, and at the same time see if they’d refinance at an even higher rate. Loan to pay a loan. That old TV was worth nothing to the rent-to-own store, but it was some kind of magic thing to some old lady. If she was a single mom, the TV was her babysitter — feed your sister after Wheel of Fortune, lights out after Idol — and she wasn’t going to give it up easy. When Kenny talked them into an even uglier refi deal that let them keep the TV, they’d usually thank him for helping them out. Sometimes, he said, moms without cash would offer what he called a couch payment, bed in return for a report to the boss of no one home. His last customer before he quit the job was a former soldier who owed for a bicycle he was renting/buying over time for his daughter’s ninth birthday. Kenny said to hell with it, he wasn’t going to repo a Barbie two-wheeler with pink streamers on the handlebars and reported it as No One Home in that part of America.
The Ohio town we were in was falling apart economically, but it still had its looks, to a point. This wasn’t the South Bronx. Old habits die hard. When middle class folks fall out of the middle class, they still tend to keep things neat and see that grass gets cut. But what was once maybe quaint was now just old and tired. Pretty soon I worry there’ll be no one home.
Historians of the Constitutional Era of the United States (1789-2001, RIP) will recall the Fourth Amendment to the Constitution, the one that used to protect Americans against unreasonable and unwarranted searches.
The Supreme Court had generally held that searches required a warrant. That warrant could be issued only after law enforcement showed they had “probable cause.” That in turn had been defined by the Court to require a high standard of proof, “a fair probability that contraband or evidence of a crime will be found in a particular place.”
The basic idea for more or less over 200 years: unless the government has a good, legal reason to look into your business, it couldn’t. As communications changed, the Fourth evolved to assert extend those same rights of privacy to phone calls, emails and texts, the same rules applying there as to physical searches.
That was Then
It was a good run. The Bill of Rights was designed to protect the people from their government. If the First Amendment’s right to speak out publicly was the people’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Folks, as our president now refers to us, should not have to fear the Knock on the Door in either their homes or The Homeland writ large.
In Post-Constitutional America (2001-Present), the government has taken a bloody box cutter to the original copy of the Constitution and thrown the Fourth Amendment in the garbage. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the concept of privacy itself: Our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint.
The government also invades our privacy in multiple other ways, all built around end-runs of the Fourth Amendment, clever wordplay, legal hacks and simple twisting of words. Thus you get illegally obtained information recycled into material usable in court via what is called parallel construction. You have the creation of “Constitution Free” zones at the U.S. border. The Department of Justice created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants, to grab folks’ emails by searching one web server instead of millions of individual homes. Under a twist of an old “privacy law,” doctors disclose your medical records to the NSA without your permission or knowledge. SWAT raids by local police designed to break into African-American businesses on harassment expeditions are also now OK.
The Center of It All: Executive Order 12333
The most egregious example of such word-twisting and sleazy legal manipulations to morph illegal government spying under the Fourth Amendment into topsy-turvy quasi-legal spying is the use of Executive Order 12333, E.O. 12333, what the spooks call “twelve triple three.” The Order dates from 1981, signed by Ronald Reagan to buff up what his predecessors limited in response to overzealous law enforcement activities. The Gipper would be mighty proud that his perhaps most lasting accomplishment was legalizing surveillance of every American citizen.
Back to today. Despite all the secret FISA court decisions and as yet uncovered legal memos, most collection of U.S. domestic communications and data is done under E.O. 12333, section 2.3 paragraph C.
Specifically, the one sentence that the government believes allows them to bypass the Fourth Amendment says the intelligence community can “collect, retain, or disseminate information concerning United States persons” if that information is “obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation.”
So, the work-around for the Fourth Amendment is as follows: NSA collects massive amounts of data on foreigners, often by hoovering up every fragment of electronic stuff flowing around the U.S. it can. So, while purportedly looking for a single terrorist email enroute to Yemen (“the needle”), the NSA collects every single email from Google, Yahoo and Microsoft (“the haystack.”) Thus, any American’s emails caught in that net are considered to have been collected “incidentally” to the goal of finding that one terrorist email. The NSA claims that the Executive Order thus makes its mass-scale violations of the Fourth Amendment legal.
Oh and hey reformers: Executive Orders by one president stay in force until another president changes or negates them. We could have one at work today written by George Washington. What that also means is that Congress, should they regain consciousness, can’t change an E.O. Congress could in theory pass a law making the contents of an E.O. invalid, but that presumes someone in Congress knows the order exists and what it says. Many E.O.’s are classified and if they are not, such as 12333, the legal documents behind them and FISA interpretations of them, likely are.
Again, as a historical note, executive orders– basically dictates from the president– once did not trump the Constitution. However, in Post-Constitutional America, they do.
As for this realization we have come upon, E.O. 12333, well, we’re all behind the curve. Edward Snowden, while still at NSA, wrote a now-famous email to the spy agency’s legal advisor, asking specifically whether an Executive Order has more legal force than an actual law passed by Congress, or indeed the Constitutional itself. The NSA’s answer was a bit convoluted, but said in a pinch the Constitution wins (wink wink), even while acting as if the opposite is true.
As General Michael Hayden, then head of the NSA, said in a blistering blast of Newspeak, “I am convinced that we are lawful because what it is we’re doing is reasonable.”
Ask Obama This Question
So let’s make it simple: Journalists with access to the president, ask this question directly: Why is E.O. 12333 being used today, interpreted by the FISA court or any other means, stating that the NSA’s surveillance of U.S. citizens is “reasonable,” and thus no warrant is required for the surveillance to continue and remain constitutional under the Fourth Amendment?
Of course getting an answer out of Obama will not happen. After all, he is the Constitutional law professor who studied the document the same way a burglar learns about an alarm system. TO BREAK IT BETTER.
BONUS: The stuff above is real amateur-level writing on E.O. 12333. When you are ready to dig in deep, get over to Marcy Wheeler’s blog. She is the smartest person working in journalism today on the subject. My debt to her is hereby acknowledged.
BREAKING: According to the Congressional Budget Office (CBO), the rich are getting richer while the poor in America continue to get poorer. And the government is contributing to all this.
You are Poorer Now than Before
Here’s the story from the CBO:
– Between 1979 and 2007, income grew by 275 percent for the top one percent of households, compared to only 18 percent for the bottom twenty percent of us.
– In 2007, federal taxes and transfers reduced the dispersion of income by 20 percent. The share of transfer payments to the lowest-income households declined. “The equalizing effect of federal taxes was smaller” in 2007 than in 1979, as “the composition of federal revenues shifted away from progressive income taxes to less-progressive payroll taxes,” thus doing less to reduce the concentration of income, the CBO said.
– The most affluent fifth of the population received 53 percent of after-tax household income in 2007, up from 43 percent in 1979. In other words, the after-tax income of the most affluent fifth exceeded the income of the other four-fifths of the population.
You can read the full Congressional Budget Office report online.
Shut Up Serfs
Just to make sure the point is clear, the top ten percent of wealth holders own roughly 70 percent of everything in the United States. The bottom half of us have roughly five percent, and falling, because…
The Great Recession of 2008 stripped swaths of the middle class of their most valuable asset. Some five million homes were lost to foreclosure between 2008 and 2013. 8.2 million more foreclosure starts took place in that same time period. Another three million homes in the next three or four years will face foreclosure.
The value of those homes and their real estate migrated into the hands of those who controlled the banks. Many homeowners were turned into renters, shoving more money upward to those who controlled the property. America’s the top earners’ wealth grew even as those responsible for the collapse were never punished and the companies involved received federal bail-out money to cover losses, being too big to fail. In a neat closing of the circle, the money came from taxes paid in part by those destroyed in the Recession.
This was one of the largest single redistributions of wealth in American, perhaps world, history. Cool– you were around to witness history in the making.
The mathematical measure of wealth-inequality is called “Gini,” and the higher it is, the more extreme a nation’s wealth-inequality.
The Gini for the U.S. is 85; Canada, 72; and Bangladesh, 64. Nations more unequal than the U.S. include Kazakhstan at 86 and the Ukraine at 90. The African continent tips in at just under 85.
Odd company for the “exceptional nation.”
Serfs All, or at Least 99% of Us
Thanks for reading this. I hope it distracted you briefly from the daily hunger pangs you face. If you don’t complain, we’ll allow you 30 minutes of TV tonight. Now back to work serf.
Apple unveils their new iPhone today. Here’s your 2014 America in a nutshell:
Be poor, Black, Muslim or expressing a political opinion and the cops will run you off the sidewalk (if not taser or kill you.)
Wait overnight on the sidewalk as a good consumer to buy the new iPhone and the cops’ll watch over you like guardian angels.
Want to have Hillary Clinton show up at your next event? Kid’s birthday party? Political rally? It’s easy, as long as you have a lot of freaking money to spend.
A ‘found” document posted on Cryptome.org lays out the terms for Hillary to attend your event.
Right up front is Hillary’s most important term: a fee of $225,000. We are all familiar with the economic travails of the Clinton’s, and the fee is really important to Hillary’s integrity as a woman of the people and, need you need reminding, her role as a mother and soon-to-be grandmother.
The fee of course is just the start. Like with cell phone plans and cable TV, the up-front price is only a starting point. Hillary also requires you to pay for a roundtrip private jet for her, which must be a Gulfstream 450 or larger. Clinton’s “travel aide” flies separately (can’t get too familiar with the help you know) first class. Her two required advance staffers need you to pay for two business class tickets. On Team Hillary, some pigs are more equal than others.
You’ll shell out for ground transportation for the whole crew as well. Though the details are not specified, expect it to be more than SuperShuttle’s blue van.
Same for the hotel rooms you will pay for. Madame requires a Presidential Suite (ironic!) while her dear travel aide needs three adjoining rooms. The lowly advance people get only single rooms. Perhaps to make up for that, you will also pay a $500 fee for “incidentals,” apparently to include buying out the minibar at that rate, to the advance lead.
Everybody has to eat, and your toll to invite Hillary over also means you pay for everyone’s meals. You’re also responsible for their phone bills and cell phone costs.
Paranoid much? As host you will also pay $1000 for a court-reporter type person to transcript Hillary’s speech. The text is apparently only for her upcoming presidential library, as the terms sheet says they will not share a copy.
The Event Itself
What do you get for these costs? About 90 minutes of Hillary’s precious time, broken down by her rules:
– A 30 minute meet and greet, but no more than 100 people and no more than 50 photos total.
– A 20 minute speech.
– Big one here: a full hour of Q&A, moderated of course.
– Clinton does not/not have meals with you.
It is specified that the meet and greet take place close to the speech area, and that the three segments be continuous so as not to take any more of the lady’s time than really necessary. Clinton must approve the person who introduces her, and the moderator.
That moderator person is quite important. S/he will pose all questions, so that there will be no naughtiness from the audience.
A Rough Tally
So let’s put some numbers to all this. We’ll assume dearest Hils is departing from Washington DC for an event in Denver, with a one night stay. Here are some rough numbers based on web searches.
Private Jet $52,000, round-trip
First Class Ticket for Travel Aide, round-trip $800
Business Class Ticket, x 2, round-trip $1400
Limo Service Two days x two cars x $500/day $2000 (includes free wet bar!)
Travel Advance Incidentals $500
Meals, based on USG per diem rate, total $1860
Phone Bills, est. $250
Hotel, Best Suite, one night $756
Hotel, three adjoining rooms, one night $1145
Hotel, two singles x three days, one night $1654
Colorado State Tax on all of the above, est. 4.49% $12,947.58
Is it Worth It?
Understand that that $301,312.58 for 90 minutes of Hillary’s time is just an estimate; she might hit the minibar hard, even with the free wet bar in the limo. There are no specified charges for internet access, candy or paper clips and staplers. It is highly unlikely that she or her staff will be content with only the standard U.S. government per diem rates for their meals (Congresspersons traveled abroad on “official business” routinely get double per diem.)
On the other hand, you might be able to negotiate some deep discounts based on the amount of your purchases. For example, the hotel rates quoted above are “best web prices.” You could go through Expedia, or maybe even get the hotel to apply the U.S. Government Employee discount rates, given how Hillary will soon be president and all.
And you do get 90 full minutes of Clinton’s time. That all works out to about $3347.91 per minute. By comparison, a high-class hooker in Denver, according to the internet, runs about $425 (link NSFW) for the same time. You can get a professional clown for your kid’s birthday party for about $200, even less if you choose one of the really creepy ones. I could not find rates for clown hookers.
So you be the judge. And bring money.
This is not satire, and a cop did get convicted for a killing. Only it is not what you think, and it shows the reality of how we value life, and the law, now in America.
A Boulder, Colorado police officer convicted of killing a beloved, semi-tame bull elk in an upscale residential neighborhood was sentenced for the death.
The officer, Sam Carter, 37, was on duty when he killed the elk, known as Big Boy, while it grazed under a tree. He did not report firing his weapon to the police department, and then said the animal had been injured before he arrived on the scene and needed to be put down. Prosecutors said text messages between Carter and another police officer showed that the shooting was planned. The elk was a fixture in the neighborhood, and its killing inspired marches, vigils, a tribute song and plans for a memorial.
Carter was convicted of nine charges, including three felonies: forgery, tampering with evidence and trying to influence a public official, all of which carried a sentence of up to six years in jail. Instead, despite the premeditated killing, the lying and the evidence tampering, Carter received only probation, and no jail time. His accomplice copped a plea for the same crimes, resulting in all of sixty days of home detention and probation. Even those convictions took twenty months to take place. Both cops did lose their jobs over it all.
Meanwhile, in places like the spotlighted Ferguson, Missouri, but actually across the United States, cops are killing citizens. Marches, vigils, tribute songs and plans for a memorial are a regular occurrence among the largely African-American communities where the killings take place. Sadly, the whole thing has taken on the appearance of a set-piece: a young African-American man is stopped by police for a minor offense (or no apparent offense.) In the course of the stop, he either “resists,” tries to “flee,” “appeared to have a weapon (when there was none), or “went for the officer’s weapon.”
In one recent case, the cops claim a young African-American man shot himself while handcuffed, all inside a police car. The cops responding to reports of a fight had stopped the victim, age 22, who was walking with a friend. Deputies found marijuana in the man’s pocket and that was that. The investigation into that death is ongoing, now several months in. The autopsy showed the fatal bullet entered the young man from the front, though his hands were cuffed behind him.
It is not just violence against African-American males; an Oklahoma cop has been charged with sixteen counts including first-degree rape and sexual battery after being accused of assaulting at least eight African-American women while on patrol.
In the generic cases, once detained, the young African-American man loses the status of human and becomes a dangerous suspect. He then is eligible to be beaten, tased or more and more often, just killed in the street. If no one was around to videotape the incident, it usually goes away, played for shock value that night on the local news, with a perfunctory police denial and an empty promise to investigate.
After a video surfaces, the media may pick up the story again for awhile (can’t pass up a lede that includes a violent video) and that long-delayed investigation is again mentioned. It tends to take a long, long time to complete, typically about as long as the public’s attention span, and the officer is usually found to have acted “appropriately.” The community is urged to move on, and it does, more cynical, more full of hate, but more on the road to reluctant acceptance that cops these days can pretty much do what they want, as long as the victim is a young African-American and not a beloved elk for God’s sake.
Nydia Tisdale is a citizen journalist in Georgia. She does not get paid for her work, but instead sees it as a civic duty to record politicians and the political process, and then upload those videos to YouTube. What she does is in large part what democracy is all about– involved, informed citizens exercising their rights under the First Amendment.
Not in Georgia.
Tisdale’s day began with a speech by state Insurance Commissioner Ralph Hudgens, who in his talk described the debate performance of a Democratic rival as lousy enough that “I thought I was going to absolutely puke.”
The crowd was laughing at the insult when Hudgens interrupted, looking down from the podium at Tisdale, seated near the state’s governor. Hudgens said “I don’t know why you’re videotaping.” Another pol, a local attorney and former GOP chairman, and one of the event’s organizers, demanded Tisdale stop videotaping. She refused. The cops were called to arrest and remove her.
Yes, it got worse.
At some point, with Tisdale loudly stating her rights were being violated, one of the arresting cops allegedly pressed his groin into Tisdale’s backside, bending her over a counter, because that’s how it’s done in Georgia. Tisdale would eventually be charged with trespassing, a misdemeanor, and obstructing an officer “by elbowing him in the right cheek area and kicking him in the right shin.”
Linda Clary Umberger, chairwoman of the Dawson County GOP, followed the citizen journalist and the officer to an outbuilding. “I watched as a woman was bent over the counter on her face, with an officer over her,” Umberger said. “If I had been her, I would have elbowed him in the face, too. “I was so upset at how they handled it – I walked out.”
The state governor apparently sat in silence while the violation of civil rights took place in front of him. Because that’s how it’s done in Georgia.
“Let me be possibly politically incorrect here a second,” a later speaker, the state’s attorney general finally told the crowd. “If we stand for anything as a party, what are we afraid of with the lady having a camera, filming us? What are we saying here that shouldn’t be on film?
“What message are we sending? That because it’s private property, they shouldn’t be filming? What is the harm? Who’s the winner in the long run? Not a good move. The harm that this poses is far greater than her filming us. What are we hiding? If we are telling you why we are running and what we stand for, what are we hiding?”
Georgia still isn’t done harassing Tisdale.
Though she was released on bond, her camera, supposedly seized as “evidence,” remains locked up, because that’s how it’s done in Georgia. “I can’t work without it,” she said.
This is not Tisdale’s first time to run into unfair practices in Georgia. In 2012, the mayor of Cumming, Georgia, ejected Tisdale from an open city council meeting simply for videotaping the proceedings. A judge later signed an order laying a $12,000 fine on the city and mayor for violating the state’s open meetings law, never mind the Constitution of the United States, assuming that document still applies in Georgia.
I did have dinner with Dr. Morris Berman, and that made up for a lot of missed opportunities elsewhere. Dr. Berman, for those who don’t know, runs the blog Dark Ages America. Berman (pictured, left, perhaps not the best photo either of us has ever taken, but then again, the raw material is what it is) also wrote three books that to me are crucial to understanding the changes in America over the past couple of decades: The Twilight of American Culture, Dark Ages America: The Final Phase of Empire and Why America Failed: The Roots of Imperial Decline.
The titles tell the tale, and Berman’s blog is equally dark and straightforward. I’ve written more about Berman’s work here.
Dr. Berman gave a talk at Washington and Lee University in Virginia on post-9/11 America. As you might imagine, his survey, and, more significantly, his predictions, were of great concern.
Central was the notion that Americans have become enveloped in their own myth, what some call “American Exceptionalism,” to the point where critical thinking, reflection and debate are no longer possible among us. Anyone who tries to engage on America thoughtfully is either ignored, shunned or dismissed as a traitor (it is thus not surprising that under the Obama Administration whistleblowers are punished with the Espionage Act.) Replacing reflection in America is cheerleading, the endless pronouncements of who is Number One (as if anyone was asking outside our borders) and of course the citing of our exceptionalism as justification for everything from the destruction of the Native Americans to plans for the bombing of Syria.
Our present days are defined, according to Berman, by endless war and the completion of our police state. Is it not odd that the only country anyone can claim that won WWII has somehow seen fit to engage in continuous conflict ever since? Following a very brief respite between the Cold War ending and the convenience of 9/11 kicking off the Global War on Terror, America has now firmly set itself on course for endless war. The elements are all in place, primarily an enemy defined more by a tactic (“terrorism”) than anything else. Such an “enemy” can never really be defeated, and that indeed is the point.
The police state in America, always bubbling below the surface, with zit-like bursts during the J. Edgar Hoover years and the 1968 Chicago police brutality, now is in place. Cops regularly exercise “frontier justice” on our streets, gunning down the guilty and the innocent alike in what the media rushes to call righteous shoots. Police departments across the U.S. are equipped with the weapons of war, everything from armored vehicles in suburbia to drones soon everywhere. Things like “stop and frisk” in New York City criminalize everyone, with particular attention to race.
But worst of all is the realization that the power of government, spurred by surveillance tech undreamed of by the SS and the Stasi, has grown in power such that Americans can be denied jobs, travel and life itself based on their names being put by anonymous officials on secret lists. Indeed, the president can now indefinitely imprison Americans with the stroke of a pen, or choose to simply have them killed as they stand at the push of a Predator drone button. Imagine such power in the hands of a terrorist, then look out the window and realize it’s us.
Overlaying all this is of course our society and economy’s descent into what Berman calls Neo Feudalism. A very few rich control everything, served by a class of workers kept dangling just over starvation, with the mass of poor available in the wings to replenish the ranks should those workers complain or demand food and lives.
America as anyone might recognize it based on the previous definition, will simply devolve out of existence.
Now that was a hell of a lecture. We had a great dinner afterwards. I shall also note that Dr. Berman outdrank me two-to-one while still telling better jokes.
The NSA decision came only hours after thousands of analysts, following similar threats at CIA, said they planned to quit and apply for jobs as Apple Geniuses and Best Buy Geek Squad workers.
Speaking on background, one disgruntled NSA employee said “Go ahead, throw me in jail for an Espionage Act violation, that would be better than doing this job. Right after 9/11, my boss said we had to start monitoring all Americans’ electronic communications to find terrorists. So we did, plugging into Google for tens of thousands of personnel at NSA, and those two interns we assigned to Bing. At first we thought it was an anomaly that 64 percent of all Internet traffic was flowing to ‘BarelyLegalCheerleaders.com’ but the numbers tracked. Most of the rest of the web was shopping during work hours.”
“And is all you talk about on your cells where you are and what you are doing at that second? Where was the ‘Mohammed, now we blow up the bridge and avenge the brothers’ stuff? No, instead it was 24/7 ‘I’m, yeah, at the mall. I might get an Orange Julius. LOL.’ You people even pronounce the term ‘LOL’ out loud as ‘lull’ as if it was a real word. Do you know what it’s like to listen to that all day? I’d rather clean the toilets at NSA but that job was already filled by some guy named Mohammed who didn’t even have a Facebook.”
“Hacking into the TOR network was also a disappointment. We expected dirty bomb recipes and blueprints of government buildings being passed around, but instead it was all selfies from ComiCon, Hunger Games fan fiction, and terabytes of cat videos pumped out of Russia by Ed Snowden. That guy really has some free time since blowing the whistle on the NSA. Hah, and now we’re getting out of the domestic spying mission and the dude’s still trying to get NewEgg to ship to a Moscow address. Now that’s a proper LOL.”
“Still we didn’t give up. Thinking all this Internet wastage was some sort of elaborate al Qaeda spoof, we really drilled down. Our conclusion as briefed to the White House: What the hell is wrong with these people? They spend all day looking at the most disgusting images ever created by humankind, really, really sick stuff. Even the jihadis we were trying to blackmail for looking at porn mostly stayed on meh celebrity bikini sites. The people assigned to the American division now all have PTSD and are in desensitization therapy. NSA even had to create a classified commendation medal to award them just to limit potential workplace-violence and OSHA lawsuits.”
After a series of late-night meetings between worker reps from NSA and CIA, it was decided to threaten a mass walk-off if high-level action was not taken.
“Initially the brass were all whining about national security and no more 9/11′s, but then we showed them some of the actual websites you people spend your time looking at. And from work, too. During the day in Washington DC alone 98 percent of the web traffic is from .gov addresses. We see a bunch of those people trying to access The Intercept, Firedoglake and Wikileaks, get blocked by the firewalls, and then spend the next 45 minutes figuring out a way around the software to get to ‘BuffDudes.com’ for the next half hour.”
“After the bosses saw that, they immediately agreed to the changes requested. Hayden even entered the Cone of Silence and burped up his lunch. And you should see the garbage that guy looks at online for fun. I mean, we did. Whatever.”
“So,” stated the official NSA spokesperson on background, “until you morons clean up your filthy minds and start planning terrorist stuff online, we will no longer be able to afford the human cost of spying on you. Heck, even if al Qaeda blew up Chicago, about two-thirds of you wouldn’t even notice as long as YouTube stayed online.”
A spokesperson for the Department of Homeland Security stated her agency would continue to monitor every bit of web traffic, claiming the staff could not get enough of this stuff, and that many airport screeners had volunteered free overtime.
Show of hands: anybody out there who heard much of the Yazidi in Iraq before a day or two ago? Because our president is going to re-engage in combat in Iraq to save them. Airstrikes are now authorized!
Save Our Yazidi
Once upon a time placing America’s service people in harm’s way, spending America’s money and laying America’s credibility on the line required at least the pretext that some national interest was at stake. Not any more. Anytime some group we don’t like threatens a group we could care not so much about, America must act to save a proud people, stop a humanitarian crisis, take down a brutal leader, put an end to genocide, whatever will briefly engage the sodden minds of the public between innings and spin up some new war fever. Some of these crisis’ get a brief moment in the #media (Save our girls!), some fizzle and fade (The Syrian people!) and some never even made sense (Somebody in the Ukraine!)
With some irony, “freeing the Iraqi people from an evil dictator” was one of the many justifications for the 2003 invasion.
And so this week, apparently it is the Yazidis in northern Iraq. These people consider themselves a distinct ethnic and religious group from the Kurds with whom they live in Iraq, though the Kurds consider them Kurdish. Their religion combines elements of Zoroastrianism with Sufi Islam. One of their important angels is represented on earth in peacock form, and was flung out of paradise for refusing to bow down to Adam. While the Yazidis see that as a sign of goodness, many Muslims view the figure as a fallen angel and regard the Yazidis as devil-worshippers. Fun Facts: the Yadzidi don’t eat lettuce, either, and also boast a long tradition of kidnapping their wives. The photo above shows them slaughtering a sheep, which they do eat.
Between 10,000 and 40,000 civilians (kind of a big spread of an estimate given how important these people are now to the U.S.) are currently stranded on Mount Sinjar in Northern Iraq without food and water, having been driven out of town by ISIS earlier this week.
So, in response to this humanitarian crisis, or this genocide as the New Yorker called it, Obama’s answer is pretty much the same answer (the only answer?) to any unfolding world event, more U.S. military intervention.
With no apparent irony, the White House spokesperson, surnamed Earnest (honestly, Orwell must be laughing in his grave) said on the same day “We can’t solve these problems for them. These problems can only be solved with Iraqi political solutions.”
Obama also has said U.S. airstrikes on Iraq aim to protect U.S. military advisers in Iraq who one guesses are not part of that political solution by definition.
I feel for anyone suffering, and I have no doubt the Yazidis are suffering. But as we start bombing things in Iraq again, let’s invite Obama to answer a few questions; White House journalists, pens at the ready please:
– Since this is happening in Iraq, and the U.S. spent $25 billion to train the Iraqi Army and sold it some serious weaponry, why isn’t it the Iraqis who will be doing any needed bombing? Is it because they are incompetent, or is it because the Baghdad government is either afraid to operate in Kurdish territory and/or wholly unconcerned what the hell happens up there?
Yep, might be those things. The Yazidis have long complained that neither Iraq’s Arabs nor Kurds protect them. In 2007, in what remains one of the most lethal attacks during the American Occupation, suicide bombers driving trucks packed with explosives attacked a Yazidi village in northwestern Iraq, killing almost 800 people.
– At the same time, since this is happening in defacto Kurdistan, and the U.S. has spent billions there since 1991 and supplied it some serious weaponry, why isn’t it the Kurds who will be doing any needed bombing to protect those they consider their own people? Hmm, just an idea, but the U.S. has recently imposed an economic oil embargo on Kurds to force them to stay with Iraq and they might be unhappy with American ‘stuff right now.
– Outside Kurdistan/Iraq, the other major Yazidi population centers are in Turkey and Iran. So why aren’t they doing any needed bombing?
– If indeed this Yazidi issue is a genocide, why isn’t the U.S. seeking UN action or sanction? The UN has, after all, started safely extracting small number of Yazidis. Could anyone help with that?
– If indeed this Yazidi issue is a genocide, why aren’t any of America’s allies jumping in to assist in any needed bombing? Seriously, if all this is really so important, how come it is just the U.S. involved, always?
– While saving the Yazidis is the stated goal, in fact any U.S. airstrikes are technically and officially acts of war on behalf of the Government of Iraq. And we’re also cool with that, yes?
– And c’mon, isn’t this just a cynical excuse to tug on some American heartstrings, crank up the war fever and get us back into the Iraq war? ‘Cause even if that’s not the intention, it is a likely result.
– And Obama, we’re gonna be cool announcing the loss of American life, again, in Iraq, this time to save the Yazidi? ‘Cause even though there are supposedly no boots on the ground, there is no way you are going to drop bombs near civilians you are trying to protect without Special Forces laying their boots on the ground to guide in the airstrikes. We are not Israelis, after all.
An Exceptional Nation
Many examples of extraterritoriality grow out of America’s archipelago of military bases around the world, where Status of Forces Agreements (SOFA) allow service members exemption from local laws, even when they commit crimes against host country people. The U.S. also stations Customs and Border Patrol agents in other nations, denying boarding on U.S.-bound flights from Canada, for example, to Canadian citizens otherwise still standing in their own country. Imagine the outcry in America if the Chinese were to establish military bases in Florida exempt from U.S. law, or if the Russians choose which Americans could fly out of Kansas City Airport. Never mind drone strikes, bombings, deployment of Special Forces, invasions and CIA-sponsored coups.
The snowballing NSA revelations have already severely damaged U.S. credibility and relationships around the world; nations remain shocked at the impunity with which America dug into their private lives. NSA spying has also cost American tech firms $180 billion in lost revenues, as “We’re not an American company” becomes a sales point.
A New Level
An American court has just taken things to a new level of extraterritorial offensiveness by requiring Microsoft to turn over to the U.S. government emails it holds on its servers. But in this case, those servers are located in Ireland, a European Union nation with its own privacy laws. Those laws are apparently of no real concern to the United States.
In a July 31 ruling upholding a lower court decision, U.S. Magistrate Judge James Francis in New York ruled that an American search warrant can be applied outside the country and served on a foreign company if that company has some business connection to an American corporation. The ruling makes all data in the world subject to a U.S. court, assuming some nexus to an American entity can be found. The nexus question is important; U.S. law holds that a company doing business in the U.S., say Malaysian Airlines, can be sued in the U.S. for some event that occurred abroad, such as an air crash in the Ukraine. The court ruling could in theory require Credit Suisse to open its servers in Zurich to the U.S. government simply because they have an office in Manhattan.
In the current case, the theory was that because Microsoft owned and controlled a foreign subsidiary company based in Ireland, any data stored in that overseas office or its data centers fell within (virtual) U.S. territory. This exposes massive amounts of foreign cloud-stored data, including emails and web searches, to American law enforcement working through an American court system that has been compliant in satisfying its needs post-9/11.
Rules are For Fools
The Judge went further is his decision, claiming official channels between countries that currently allow for cross-border law enforcement operations, called mutual legal assistance treaties (MLATs), are “generally… slow and laborious, as it requires the cooperation of two governments and one of those governments may not prioritize the case as highly as the other.” The judge added: “The burden on the government would be substantial, and law enforcement efforts would be seriously impeded.”
MLATs, the system that has been in place for many, many years prior to this week’s court ruling, are formal treaties whereby countries agree to share law enforcement information when it is to the benefit of both sides. They are subject to transparency and scrutiny, court review and have numerous steps built in to protect the rights of the accused. An example of an MLAT’s typical use might be a cross-border investigation into an alleged narco trafficker doing bad things in both nations. MLAT’s are usually administered abroad through the FBI’s Legal Attache stationed at the U.S. Embassy.
EU Data Laws
The American court’s ruling, allowing the United States to simply demand Microsoft’s data from Ireland for whatever purpose it may decide to use it, is a big, big deal. European information law is very strict. Data held by a company in Europe is considered to ultimately belongs to the citizen who generated it. A citizen can request access to his or her own data, and when it’s no longer needed, it must be deleted.
In the U.S., data is considered the property of the tech company that has its hands on it at the moment. So, in America, your Facebook posts and Instagram pictures don’t really belong to you, and you can’t block those companies from giving them to the government, or selling them to a third party for that matter.
Yet the most amazing thing about the judge’s ruling is its sheer audacity. In the immediate wake of the revelations that the NSA has been stealing Europe’s data, the judge has ruled that it is in fact now legal for the U.S. government to simply demand that data.
Microsoft to Appeal
In hopes of salvaging its business in Europe, Microsoft is appealing the decision. http://publicpolicy.verizon.com/blog/entry/verizon-files-amicus-brief-in-support-of-microsoft Verizon, Apple, AT&T, and Cisco, despite handing over their data to the NSA domestically willy-nilly, are supporting Microsoft in its efforts to block the European grabs.
In its appeal, Microsoft summed up the issue concisely:
A U.S. prosecutor cannot obtain a U.S. warrant to search someone’s home located in another country, just as another country’s prosecutor cannot obtain a court order in her home country to conduct a search in the United States. We think the same rules should apply in the on line world, but the government disagrees.
A new report by the Urban Institute and Encore Capital Group’s Consumer Credit Research Institute shows 77 million Americans– 35 percent of those with files at a major credit bureau– have a debt in collection.
Nevada has the worst record, with 47 percent of consumers with a credit file showing a debt in collections. In twelve other states, including Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, New Mexico, North Carolina, South Carolina, Texas, West Virginia as well as the District of Columbia, more than 40 percent of residents with a credit file have a bill in collections. In some smaller areas, the in-collection number is as high as 61 percent.
The report also shows that 1 out of 20 Americans hold debt that is “past due,” i.e., more than one month delinquent, though not yet in the collection process. Collection usually kicks in after 180 days past due.
Meanwhile, about 22 million Americans make so little money that they do not have credit files.
Poverty is Profitable
But as you can expect, there is always someone profiting from poverty.
For example, in another area of debt, writing checks that exceed the amount in an account (bouncing a check), often in hopes of creating faux credit planning on money to flow in before the check is actually cashed, American banks collect $30 billion a year in overdraft fees.
Collection companies can be seen as a great investment. The companies buy debt cheap and collect high. For example, Bank A itself has no interest in chasing a person for, as an example, a $1000 overdue payment. That’s not the bank’s core business, banking is. So they sell it to a collections company for say 10 percent, or $100. If the company can get back from the consumer anything more than the $100, that’s profit. It can be a lot of profit– one hyper-successful company boasts of a 239% return. A more typical return on investment for a collections company is 20 percent, a nice profit in itself.
In 2010 agencies collected about $40 billion from consumers. Business seems good: there are 4,100 debt collection agencies in the United States, employing nearly 450,000 people, and the industry expects to grow by 23 percent over the next three years. The Association of Credit and Collection Professionals, the industry’s largest trade association, spent more than $660,000 on Congressional lobbying over three years.
So Stop Spending. You Don’t Need that Big Screen
The average American holds $15,000 in debt, about half of that on credit cards (though others put the credit card number at about $4000.) But more significantly, the national averages for mortgage debt are $154,365 and for student loans, $33,607.
A common statement at this point regarding those credit cards is “So stop buying things you can’t afford, especially with high interest rates. Duh.” While there are no doubt people who misuse their credit to buy frivolous things, credit cards are to many in the middle class what pay day loans and pawn shops are to the poor: easy to access money for daily needs when there are no alternatives.
However, according to an analysis of spending from First Data, a major payment processing company, Americans increasingly used credit to purchase food and other everyday necessities. “During the month studied we saw consumers reducing the growth of their discretionary spending at retail merchants and increasingly resorting to credit for necessities,” said a statement. Spending in clothing stores, restaurants and bars declined, while credit spending at general merchandise stores, including value retailers and discount stores, increased.
BONUS: Some 46 million Americans receive benefits from the Supplemental Nutritional Assistance Program, what food stamps are now called. Hmmm… More than 1 out of 3 Americans are indebted, and about 1 out of 6 are dependant on the government to eat. Why, you’d almost think that was a strategy of control or something. But, naw, couldn’t be.
I am quite pleased to have joined the Advisory Board of ExposeFacts.org.
The group’s message is clear: encourage more government officials to blow the whistle. As said on their website, “ExposeFacts.org represents a new approach for encouraging whistleblowers to disclose information that citizens need to make truly informed decisions in a democracy. From the outset, our message is clear: “Whistleblowers Welcome at ExposeFacts.org.”
I’m sort of amazed I fit in alongside the others working with ExposeFacts: Barbara Ehrenreich, Dan Ellsberg, Tom Drake, Jesselyn Radack, Michael Ratner, Matt Hoh, Coleen Rowley, Ann Wright and Ray McGovern. So there’s yer humble brag for today.
I am also quite pleased that half a block from the State Department in Washington, at a bus stop used by America’s diplomats, ExposeFacts erected its first outdoor advertisement encouraging government employees to blow the whistle (photo above; that’s Matt Hoh there, not me). The ad shows Pentagon Papers whistleblower Daniel Ellsberg alongside the words “Don’t do what I did. Don’t wait until a new war has started, don’t wait until thousands more have died, before you tell the truth with documents that reveal lies or crimes or internal projections of costs and dangers. You might save a war’s worth of lives.”
ExposeFacts will erect more such ads at other prominent locations in Washington and beyond. As an advisory board member, I’m glad to report that outreach to potential whistleblowers is just getting started.
(For those new to the blog, I am a State Department whistleblower, so this all resonates with me personally as well as a concerned American. Learn more in my book We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (American Empire Project))
Not that America has become a divided, classist society or anything. Oh wait, it has.
New York City approved plans for a new 33-story luxury high-rise at 40 Riverside Drive on the Upper West Side of Manhattan that will include a separate entrance for tenants in “affordable” housing, what some have called the “poor door.” The high-rise has both super-luxe units worth millions, and some affordable housing units. Rich residents come in the front door. Poor residents enter through the side door. The expensive units overlook the Hudson River waterfront. The affordable units are in a “building segment” that faces the street. “Affordable” folks cannot enter the rich side of the building and are prohibited from using any of the building’s amenities. The way the architecture was specifically designed, the two groups will never mingle.
Affordable Housing in a Luxury Building?
Why does such a luxury building have affordable housing units in the first place? Well, so the rich can manipulate New York’s housing laws for their own benefit.
Including some affordable housing units in your new construction buys you two distinct advantages in New York. The first is that the developer is allowed to build a much taller building (and thus having more apartments to sell), skirting zoning laws and claiming valuable “air rights” for the benefit of the poor, of course. The air rights the developer will claim are worth millions in crowded Manhattan. The benefits even apply if you build your luxury tower in one part of Manhattan and your affordable units “off site,” maybe in a nasty part of town.
A developer can also qualify for the program by building condos on “areas of Manhattan of underutilized or unused land,” wherever those may be on some of the most densely populated land in the world.
The biggest advantage of including the affordable units in a luxury building is the massive tax breaks all residents share. New York waives or significantly lowers property taxes, meaning the rich, who need never see or interact with their poor neighbors, make money off their presence. It’s all called the “Inclusionary Housing Program,” or officially, the 421a program.
Here’s an example of how significant these tax breaks can be drawn from another super-luxury building in midtown Manhattan that included some affordable housing units. On an apartment purchased in 2007 for $1.5 million, the owner paid just $35 a month in property taxes. That creeped up to only $374 a month in 2011. When the exemption expires in 2018, the actual monthly tax bill will be an estimated $1,629. Note also any that real estate taxes paid are tax-deductible from one’s income.
Developers Getting Rich off the Poor
Another New York developer, who has built “poor door” buildings, summed things up quite succinctly:
No one ever said that the goal was full integration of these populations. So now you have politicians talking about that, saying how horrible those back doors are. I think it’s unfair to expect very high-income homeowners who paid a fortune to live in their building to have to be in the same boat as low-income renters, who are very fortunate to live in a new building in a great neighborhood.
The developers of the poor door building under discussion have done well with tax breaks. Five of the luxury firm’s other apartment towers cost the city $21.8 million in tax revenue in their first year alone. Overall, as of 2012, property tax abatements in New York City totaled $2.9 billion, about 20 percent of actual property tax collections in the city.
So what’s the problem, some say, with poor folks gettin’ some uptown housing from the swells? History: Separate but equal favors the separate but never the equal part. It did not work as a solution for racial inequality and it won’t work as a solution for economic inequality. Indeed, one wonders if the building caught fire which door the fire department would go through first?
And there you have it, another tidy example of how taxes and laws are rigged to favor the people who already have the most money. Go ahead, work as hard as you like; this game, friends, has already been decided.
You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted — about one-third of the text is missing — Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury, and executioner.
Due Process in Constitutional America
Looking back on the violations of justice that characterized British rule in pre-Constitutional America, it is easy to see the Founders’ intent in creating the Fifth Amendment. A government’s ability to inflict harm on its people, whether by taking their lives, imprisoning them, or confiscating their property, was to be checked by due process.
Due process is the only requirement of government that is stated twice in the Constitution, signaling its importance. The Fifth Amendment imposed the due process requirement on the federal government, while the Fourteenth Amendment did the same for the states. Both offer a crucial promise to the people that fair procedures will remain available to challenge government actions. The broader concept of due process goes all the way back to the thirteenth-century Magna Carta.
Due process, as refined over the years by the Supreme Court, came to take two forms in Constitutional America. The first was procedural due process: people threatened by government actions that might potentially take away life, liberty, or possessions would have the right to defend themselves from a power that sought, whether for good reasons or bad, to deprive them of something important. American citizens were guaranteed their proverbial “day in court.”
The second type, substantive due process, was codified in 1938 to protect those rights so fundamental that they are implicit in liberty itself, even when not spelled out explicitly in the Constitution. Had the concept been in place at the time, a ready example would have been slavery. Though not specifically prohibited by the Constitution, it was on its face an affront to democracy. No court process could possibly have made slavery fair. The same held, for instance, for the “right” to an education, to have children, and so forth. Substantive due process is often invoked by supporters of same-sex unions, who assert that there is a fundamental right to marry. The meaning is crystal clear: there is an inherent, moral sense of “due process” applicable to government actions against any citizen and it cannot be done away with legally. Any law that attempts to interfere with such rights is inherently unconstitutional.
On September 30, 2011, on the order of the president, a U.S. drone fired a missile in Yemen and killed Anwar al-Awlaki. A Northern Virginia Islamic cleric, in the aftermath of 9/11 he had been invited to lunch at the Pentagon as part of a program to create ties to Muslim moderates. After he moved to Yemen a few years later, the U.S. accused him of working with al-Qaeda as a propagandist who may have played an online role in persuading others to join the cause. (He was allegedly linked to the “Underwear Bomber” and the Fort Hood shooter.) However, no one has ever accused him of pulling a trigger or setting off a bomb, deeds that might, in court, rise to the level of a capital crime. Al-Awlaki held a set of beliefs and talked about them. For that he was executed without trial.
In March 2012, Attorney General Eric Holder made quite a remarkable statement about the al-Awlaki killing. He claimed “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” In other words, according to the top legal authority in the nation, a White House review was due process enough when it came to an American citizen with al-Qaeda sympathies. In this, though it was unknown at the time, Holder was essentially quoting a secret white paper on that killing produced by the Office of Legal Counsel, located in the department he headed.
In June 2014, after a long court battle to shield the underlying legal basis for the killing, the Obama administration finally released a redacted version of that classified 2010 white paper. In the end, it did so only because without its release key senators were reluctant to confirm the memo’s author, David Barron, who had been nominated by President Obama to serve on the First Circuit Court of Appeals. (Once it was made public, Barron was indeed confirmed.)
The importance of the white paper to understanding Post-Constitutional America cannot be understated. Despite all the unconstitutional actions taken by the government since 9/11 — including striking violations of the Fourth Amendment — this paper is to date the only glimpse we have of the kind of thinking that has gone into Washington’s violations of the Bill of Rights.
Here’s the terrifying part: ostensibly the result of some of the best legal thinking available to the White House on a issue that couldn’t be more basic to the American system, it wouldn’t get a first-year law student a C-. The arguments are almost bizarrely puerile in a document that is a visibly shaky attempt to provide cover for a pre-determined premise. No wonder the administration fought its release for so long. Its officials were, undoubtedly, ashamed of it. Let’s drill down.
Death by Pen
For the killing of an American citizen to be legal, the document claims, you need one essential thing: “an informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack against the United States.” In addition, capture must be found to be unfeasible and the act of killing must follow the existing laws of war, which means drones are okay but poison gas is a no-no.
The rest of the justification in the white paper flows from that premise in a perverse chain of ankle-bone-connected-to-the-leg-bone logic: the president has the obligation to protect America; al-Qaeda is a threat; Congress authorized war against it; and being in al-Qaeda is more relevant than citizenship (or as the document crudely puts it, “citizenship does not immunize the target”). International borders and the sovereignty of other nations are not issues if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.” Basically, it’s all an extension of the idea of self-defense, with more than a dash of convenience shaken in.
When the white paper addresses the Fifth Amendment’s right to due process, and to a lesser extent, the Fourth Amendment’s right against unwarranted seizure (that is, the taking of a life), it dismisses them via the “balancing test.” Not exactly bedrock constitutional material, it works this way: in situations where the government’s interest overshadows an individual’s interest, and the individual’s interest isn’t that big a deal to begin with, and a mistake by the government can later be undone, the full due process clause of the Fifth Amendment need not come into play.
The three-point balancing test cited by the white paper as conclusive enough to justify the extrajudicial killing of an American comes from a 1976 Supreme Court case, Mathews v. Eldridge. There, the court held that an individual denied Social Security benefits had a right to some form of due process, but not necessarily full-blown hearings. In Anwar al-Awlaki’s case, this translates into some truly dubious logic: the government’s interest in protecting Americans overshadows one citizen’s interest in staying alive. Somehow, the desire to stay alive doesn’t count for much because al-Awlaki belonged to al-Qaeda and was in the backlands of Yemen, which meant that he was not conveniently available by capture for a trial date. Admittedly, there’s no undoing death in a drone killing, but so what.
The white paper also draws heavily on the use of the balancing test in the case of Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan Yaser Hamdi, a Saudi-American citizen, and sought to detain him indefinitely without trial. After a long legal battle that went to the Supreme Court, the balance test was applied to limit — but not fully do away with — due process. Despite limiting Hamdi’s rights in service to the war on terror, the court was clear: Yaser Hamdi should have a meaningful opportunity to challenge his status. Fearing that giving him his moment in court would expose the brutal reality of his capture, interrogation, and detention, the U.S. government instead released him to Saudi Arabia.
Hamdi’s case dealt with procedural questions, such as whether he should be allowed a trial and if so, under what conditions. As with Mathews v. Eldridge, Hamdi never focused on issues of life and death. Cases can be (re)tried, prisoners released, property returned. Dead is dead — in the case of al-Awlaki that applies to the drone’s target, the balance test, and the Fifth Amendment itself.
What Do Words Mean in Post-Constitutional America?
Having dispensed with significant constitutional issues thanks to some exceedingly dubious logic, the white paper returns to its basic premise: that a kill is legal when that “informed, high-level official” determines that an “imminent threat” to the country is involved. In other words, if the president is convinced, based on whatever proof is provided, he can order an American citizen killed. The white paper doesn’t commit itself on how far down the chain of “high-level officials” kill authority can be delegated. Could the Secretary of the Interior, for instance, issue such an order? He or she is, after all, eighth in the line of succession should the president die in office.
The white paper does, however, spend a fair amount of time explaining how the dictionary definitions of “imminent” and “immediate” do not apply. For kill purposes, it says, the U.S. must have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” However, the paper goes on to explain that “immediate” can include a situation like al-Awlaki’s in which a person may or may not have been engaged in planning actual attacks that might not be launched for years, or perhaps ever. The paper claims that, since al-Qaeda would prefer to attack the U.S. on a continual basis, any planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack that requires sending in the drones.
And if, as perhaps the author of the paper suspected, that isn’t really enough when faced with the bluntness of the Constitution on the issue, the white paper haphazardly draws on the public authority justification. According to this legal concept, public authorities can, in rare circumstances, violate the law — a cop can justifiably kill a bad guy under certain conditions. By extension, the white paper argues, the government of the United States can drone-kill a citizen who is allegedly a member of al-Qaeda. The white paper conveniently doesn’t mention that police shootings are subject to judicial review, and those who commit such unlawful acts can face punishment. The laws behind such a review are unclassified and public, not the rationed fodder of a redacted white paper.
For the final nail in the coffin of some American citizen, the white paper concludes that, Fifth Amendment violation or not, its arguments cannot be challenged in court. In cases of “foreign policy,” courts have traditionally almost always refused to intervene, holding that they are in the realm of the executive branch in consultation, as required, with Congress. Killing an American abroad, the white paper insists, is a foreign policy act and so none of any courts’ business.
Substantive due process legally applies only to legislation, and it is highly unlikely that the Obama administration will seek legislative sanction for its kill process. So it is in one sense not surprising that the white paper makes no mention of it. However, looking at what we can read of that redacted document through the broader lens of substantive due process does tell us a lot about Post-Constitutional America. In Constitutional America, the idea was that a citizen’s right to life and the due process that went with it was essentially an ultimate principle that trumped all others, no matter how bad or evil that person might be. What is important in the white paper is not so much what is there, but what is missing: a fundamental sense of justness.
As medieval kings invoked church sanction to justify evil deeds, so in our modern world lawyers are mobilized to transform government actions that spit in the face of substantive due process — torture, indefinite detention without charge, murder — into something “legal.” Torture morphs into acceptable enhanced interrogation techniques, indefinite detention acquires a quasi-legal stance with the faux-justice of military tribunals, and the convenient murder of a citizen is turned into an act of “self-defense.” However unpalatable Anwar al-Awlaki’s words passed on via the Internet may have been, they would be unlikely to constitute a capital crime in a U.S. court. His killing violated the Fifth Amendment both procedurally and substantively.
Despite its gravity, once the white paper was pried loose from the White House few seemed to care what it said. Even the New York Times, which had fought in court alongside the ACLU to have it released, could only bring itself to editorialize mildly that the document offered “little confidence that the lethal action was taken with real care” and suggest that the rubber-stamp secret Foreign Intelligence Surveillance Court be involved in future kill orders. The ACLU’s comments focused mostly on the need for more documentation on the kills. Meanwhile, a majority of Americans, 52%, approve of drone strikes, likely including the one on Anwar al-Awlaki.
The Kind of Country We Live In
We have fallen from a high place. Dark things have been done. Imagine, pre-9/11, the uproar if we had learned that the first President Bush had directed the NSA to sweep up all America’s communications without warrant, or if Bill Clinton had created a secret framework to kill American citizens without trial. Yet such actions over the course of two administrations are now accepted as almost routine, and entangled in platitudes falsely framing the debate as one between “security” and “freedom.” I suspect that, if they could bring themselves to a moment of genuine honesty, the government officials involved in creating Post-Constitutional America would say that they really never imagined it would be so easy.
In one sense, America the Homeland has become the most significant battleground in the war on terror. No, not in the numbers of those killed or maimed, but in the broad totality of what has been lost to us for no gain. It is worth remembering that, in pre-Constitutional America, a powerful executive — the king — ruled with indifference to the people. With the Constitution, we became a nation, in spirit if not always in practice, based on a common set of values, our Bill of Rights. When you take that away, we here in Post-Constitutional America are just a trailer park of strangers.
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.
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.
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.
People once called Millinocket, Maine the Magic City. The Great Northern Paper mill, which conjured this town out of the backwoods and sustained it for a century, employed 5,000 people and sustained a way of life. At least until it closed for good in 2008, turning the community into a ghost town. 2014 saw a rebirth of sorts, as new owners repurposed the mill into a wood pellet factory. But only 55 jobs were created. The town hopes to attract tourists now, but they have not come.
Only a generation ago, Bethlehem, Pennsylvania had a steel mill that employed 31,500 people. They were not alone; in the final quarter of what was to be the American Century, some 1.5 million steelworkers lost their jobs. Including all benefits, an average union steelworker made $26.12 per hour then, the equivalent of $40.66 today. It was enough to create one of the most powerful economies on earth, supported by a robust middle class driving demand for housing, cars, everything.
It is common in such circumstances to blame greedy workers, and decry how their fate was tied to selfishness and out-of-control unions. But that would be wrong, or at least only part of the story. The ratio of CEO salary-to-average-worker-salary in 1980 was 42:1, climbing to 120:1 in 2000 and stands at 204:1 today. So indeed among the complex factors that changed America’s economic landscape, greed and selfishness did indeed play a part. It is just incorrect to blame it on the workers themselves.
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.
In many ways, the debate over raising the minimum age mirrors what was said about unions in the 1970s. Many at the time, especially pro-business economists and politicians as they do today, claimed the high wages fought for by unions hurt American competitiveness and cost jobs. How could a business survive paying $25 an hour? If wages were cut, and profits went up as costs fell, more jobs would be created. So how’d that work out? The demise of unions did certainly help raise corporate profits, but it clearly did not create jobs, at least not jobs at a living wage. Quite the opposite. Want more minimum wage jobs, maybe? Keep the wage dirt poor low.
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.
The inflation-adjusted net worth for the typical household was $87,992 in 2003. Ten years later, it was only $56,335, or a 36 percent decline. For the top 5 percent of Americans, household net worth increased 14 percent over the same 10 years.
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.
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