Hey, Big Brother? It’s me. Can we talk about facial recognition please?
The Download Festival
See, the police used facial recognition technology to scan the faces of thousands of attendees at the Download music festival in the UK without their knowledge.
The excuse the Leicestershire Police used was that they were trying to catch “organized criminals” who specifically target music festivals to “steal mobile phones,” according to a report in Police Oracle. The collected footage is compared against a database of custody images to identify the criminals, in this case, an alleged music festival phone-robbing crime ring that nobody seemed to have heard about prior to it becoming the justification for searching an entire crowd who did nothing but show up to hear some tunes.
The festival saw 91 arrests out of 100,000 people. Most were for alcohol-related mishaps, none for phone theft.
Facial Recognition Technology
Facial recognition technology is big business. The tech is evolving rapidly. Basically a computer digitizes an image of someone’s face in a way that makes fooling the system difficult, stuff like measuring the distance between eyes, the angle of one’s nose, ear lobe shape, the sort of stuff that can’t be thrown off by face paint, a hat, sunglasses or the like. And the software can be configured to zero in on someone who is wearing face paint, a hat and sunglasses, so nice try, you in the back row. You’re now a person of interest.
Facial recognition is increasingly being used by law enforcement. In the U.S., it’s used by the FBI and local police departments. The largest scale use of the tech in America is at major sporting events like the Super Bowl, supposedly because terrorists are flocking there, even though they never have.
Reports suggest airports scan passengers, hotels scan lobbies, stores scan aisles, casinos scan their gambling floors and many police street cameras are tied into the systems. Another publicly-known example occurred after the Boston Marathon bombing of April 2013. The subsequent Boston Calling music fest was subject to heavy use facial recognition surveillance, one guesses in case there were more Tsarnaev brothers out there.
Nobody wants the World Series blown up by terrorists. And guess what — neither before nor after 9/11 has any terror group carried out a mass casualty attack (if you want to count the goofball Tsarnaev brothers in Boston as a terror group, and the [unfortunate] deaths of the three spectators there was “mass,” be my guest.) And of course neither facial recognition tech nor anything else seems to deter our regularly-scheduled mass shootings (been to the movies lately?)
Why It Matters
The concern over widespread and indiscriminate use of mass surveillance technology, such as facial recognition, is that it is widespread and indiscriminate, a form of search (your location) and seizure (your image and location data) that, in the U.S. at least, thumbs its nose at the Constitution’s Fourth Amendment protections against unwarranted actions. So it is simply wrong on its, well, face.
Someone inevitably will respond to all this with a hearty “Well, I’ve got nothing to hide.”
Good for you. You are quite a person if you indeed have nothing at all to hide. And maybe you really don’t, at least under today’s laws.
But information collected never goes away. Your “nothing to hide” argument has built into it your full and true faith that every government, every company, every hacker that can, will or might gain access to that data will never do anything with it against your self-interest. You are asserting that no new technologies will emerge to manipulate that data in a way you blearily can’t conceive of now.
That, my friend, is a lot of faith in Big Brother.
Copyright © 2015. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Chelsea Manning, who is currently serving a 35-year prison sentence for leaking government documents to WikiLeaks as an act of conscience (why she said she did it) concurrent with Hillary Clinton exposing much higher-level classified documents to the Chinese for her own convenience (why she said she did it), has been threatened with possible “indefinite solitary confinement” for a series of trivial infractions, including owning expired toothpaste and sweeping food onto the floor.
Her (Manning, not Clinton) hearing is today, August 18.
ACLU attorney Chase Strangio says Manning is additionally accused of “disrespect” for requesting her lawyer while speaking to a guard and “prohibited property” for owning books and magazines that include the Caitlyn Jenner cover issue of Vanity Fair.
Manning’s supporters provided a detailed list of her alleged violations:
Manning’s “prohibited property” included:
Vanity Fair issue with Caitlyn Jenner on the cover, Advocate, OUT Magazine, a Cosmopolitan issue with an interview of Chelsea, Transgender Studies Quarterly, novel about trans issues, the book Hacker, Hoaxer, Whistleblower, Spy — The Many Faces of Anonymous, the subversive book I Am Malala,” and legal documents being used for her pending appeals including the Senate Torture Report.
Perhaps there is some validity to the Senate Torture Report being prohibited property, as it clearly is pornography.
If you wish to support free speech, you can sign a petition supporting Chelsea online. I did.
If you wish to simply rant about how she deserves it, and/or shout homophobic slurs, well, I guess we have the comments section below where you can relieve yourself.
Copyright © 2015. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Seen the latest front-page Carter Center scandal? Hear about the six figure fees former president Jimmy Carter pulls in from shady foreign companies? Maybe not.
Take a moment to Google Jimmy Carter. Now do the same for Bill Clinton. The search results tell the tale of two former presidents, one determined to use his status honorably, the other seeking new lows of exploitation for personal benefit.
Carter’s presidency carries an uneven legacy. Yet his prescient but unwelcome 1979 warning that the country suffered a crisis of confidence, preventing Americans from uniting to solve tough problems, anticipated the faux bravado and true spiritual emptiness of Reagan’s “Morning in America.”
Many feel Carter has been a better ex-president than he was a president. His Carter Center focuses on impactful but unglamorous issues such as Guinea worm disease. When Carter left office, the disease afflicted 3.5 million people. Now it’s expected to be only the second disease, after smallpox, to ever be eradicated worldwide.
Carter, 90, still donates a week of his time each year to Habitat for Humanity. Not a photo-op, Carter goes out without the media in tow and hammers nails. Carter also tirelessly monitors elections in nascent democracies, lending his stature as a statesman to that work over 100 times already. Summing up his own term in office, Carter said “We never dropped a bomb. We never fired a bullet. We never went to war.”
He is the last president since 1977 who can make that claim.
Bill Clinton pushed the NAFTA agreement through, seen now by many as a mistake that cost American jobs. He pointlessly bombed Iraq and sent troops into Somalia (see Blackhawk Down.) Clinton is remembered most of all, however, for his oral affair with an intern, then fibbing about it, and ending up one of only two American presidents ever impeached as a result.
As a former president, Clinton is nothing if not true to his unstatesman-like form. Bill makes six-figure speeches to businesses seeking influence within the U.S. government, earning as much as $50 million during his wife’s term as secretary of state alone. TD Bank, the single-largest shareholder in the Keystone XL Pipeline, was also the single-largest source of speaking fees for Bill Clinton. He used a shell company to hide some of the income.
His own charity, humbly known as the Bill, Hillary and Chelsea Global Foundation, is a two billion dollar financial tangle on par with a South American cartel. It spent in 2013 the same amount of money on travel expenses for Bill and his family as it did on charitable grants. Instead of volunteering for Habitat for Humanity, Bill takes his big donors on executive safaris to Africa. Many of those same donors also give generously to the Hillary Clinton campaign and its constellation of PACs.
Voters should judge a candidate not just on examples of past competency, but with an eye toward the core things that really matter: character, values, honesty, humility and selflessness. Perhaps this tale of two presidents has a lesson in it for 2016.
Copyright © 2015. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Have you noticed that Clinton’s explanations/excuses/defenses about her private email server and the classified information it held never seem to last very long, and are typically replaced in a week or two with something new?
Back in March the message was unambiguous: there was no classified material on her server. Then, after two Inspectors General said there indeed was classified material, the line was it was classified retroactively (as if that matters; see below). That soon fell to a line that the classified information was unmarked as such (as if that matters; see below). The newest is that well, Clinton herself did not send any of the classified emails. So, once again wrapped in new shiny paper, there’s nothing to see here, folks, let’s move along to the issues that really matter. I’ll tackle that as well, below.
No one has better summed up the official Clinton Child’s Treasury of Excuses better than Senator Dianne Feinstein, who somewhat randomly released a statement “in response to allegations” regarding Clinton’s emails.
Let’s break Feinstein’s statement down.
The Dog Ate My Homework
Feinstein: First, none of the emails alleged to contain classified information were written by Secretary Clinton.
Here’s your talking point, somnolent media. It’s someone else’s fault.
Of course, the Inspectors General were only allowed by the State Department to review 40 emails, four of which contained classified. So there are still some 30,000 left to look into to see if Clinton herself did respond to, forward or write any of them.
Next is that the classified emails, no matter who wrote them, ended up in an insecure system because Clinton chose to do things that way in contravention of all good practice and rationality, if not actual law and regulation.
She was the prime mover behind the lapses in security. And after all, the cops bust the owner of the crackhouse, not just the ‘heads inside. The “buck stops where” is the question. Clinton continues to claim total ignorance of the contents of her own email to this day. Is all that presidential?
Lastly, no matter who wrote the emails, once Clinton saw them they became her responsibility to act on and secure. In real life, failure to report and secure classified found in an unsecure situation is also a violation of national security law. With that access comes responsibility. Remember, if you see something, say something!
I Didn’t Know, Honest, Sir
Feinstein: Second, none of the emails alleged to contain classified information include any markings that indicate classified content.
There is no allegation. The Inspectors General of the State Department and the Intelligence community said the emails contain classified material.
What everyone who has ever held a security clearance knows, and what the media, from left to right, cannot grasp is this: the information itself is or is not classified. The markings are there to show you what level of secure handling is required.
I’ll try again for the slow learners at CNN.
You are handed a piece of paper marked TOP SECRET//SI//TK/NOFORN (explained here). On the paper are written the negotiating positions of the Chinese Foreign Minister, whom you will meet tomorrow. The paper says these were obtained via a spy satellite listening in on the Minister in his inner office via electronic emissions.
Now, cut off the part of the paper that says TOP SECRET//SI//TK/NOFORN. Does the sensitivity of the information change at that moment? Of course not.
If you have lived in a remote cabin all your life, you may not grasp the sensitivity of knowing your opponent’s positions a day ahead of time and the sensitivity that this information was derived by some of America’s most secret sources and methods. But if you have spent your entire life in government, you damn well know that that information is not unclassified, whether it shows up in your email unmarked or otherwise.
It really, really is that simple. Marked or unmarked, pro-active or retro-active, Clinton knew she was dealing with highly classified information on an unclassified system she herself set up and continued to use.
Retroactive classification means that something was classified when it was issued. The markings were applied later, but that does not relieve the holder of the information of the legal burden of protecting the information. Government employees have lost their jobs over this concept, and gone to jail. This has been confirmed as legal as high as the Supreme Court. See Department of Homeland Security v. Robert MacLean for the most recent case. Legally, citing retroactive classification is not a defense.
“Everybody does it.” No they don’t. No other government employee, never mind Cabinet-level official, has created her own private email server in the history of the United States. If Jeb Bush had a private server as governor of Florida, that is not a charm point for him, but he also did not handle America’s most sensitive information, or any classified information at all. John Kerry and Condi Rice said they do not send official emails outside of the State Department system. Madeleine Albright said she may have sent a few back in the dawn of the Internet 14 years ago via AOL or Yahoo, and no one has suggested she sent anything classified. Colin Powell as Secretary of State said he sent a handful of emails on his AOL account, and no one has claimed there was any classified involved.
Besides, “everybody does it” is an excuse that teenagers use when they’re caught smoking behind the school.
Now, as for that “let’s get back to the issues” meme that many Clinton supporters like to go to.
No one can anticipate what will happen during the four (or eight…) years of a presidency. So while experience matters significantly, judgement and trust matter perhaps even more. Those are the things that will see success or failure when the unexpected arises one night at 3 am.
Lastly, I think also the point needs to be made that if the only standard we apply to candidates’ wrongdoings is if it is not criminal and illegal, it does not matter, sets a pretty low bar. I’d like to vote for a president who, in addition to not being a convicted criminal, is also somewhat honest, with good judgement and who at least feigns putting the nation’s interests before his/her own.
If one cannot see that, at a minimum, Clinton exercised horribly bad judgement and cannot be trusted to protect America’s secrets, and if one cannot see that those are indeed issues for an election, then, well, I just don’t know what else to say here.
My thanks to The Examiner, OPSEC Team, The Hill and Daily Kos for their articles noting the discrepancy between how the State Department treated my non-disclosure of classified materials on an unclassified system, and Hillary Clinton’s actual disclosure of classified materials on an unclassified system. There seem to be double-standards being applied.
My first book, We Meant Well embarrassed the State Department by pointing out the failure of State’s efforts in Iraq. In retaliation for this, the State Department used its security bureaucracy infrastructure to push me into retirement after they failed to prosecute me, and then failed to fire me.
Here’s what they did
In October 2011 I wrote this blog post, which linked to an alleged State Department confidential cable on the Wikileaks site. The document in question was and still is online for all the world to see. State has never acknowledged publicly its authenticity or its classification.
I merely linked to it.
Based on that link, the State Department’s Bureau of Diplomatic Security conducted a full investigation into my ability to continue to hold the Top Secret security clearance I had held without incident for 23 years. They concluded I was no longer to be trusted.
In fact, they said:
The SUBJECT is me. SBU stands for Sensitive But Unclassified, a made-up level of classification the State Department routinely assigns to all of its unclassified information to allow it to withhold documents from journalists and others as required. DS/ICI/PR is the State Department Office of Diplomatic Security, Professional Responsibility Division.
The investigation into my supposed misdeeds around classified materials included Diplomatic Security running the “hacker” program WGET against this blog, and amassing “Screen shots collected by the DS Computer Threat Analysis Division (DS/CTAD) from the article ‘Let’s Watch Qaddafi Get Beaten and (Maybe) Sodomized’ published on WeMeantWell.com on 10/26/2011.” Agents also printed out nearly my entire blog to preserve a paper copy, apparently in case I deleted the files from my server. Hmm.
I was interviewed three times in depth by a team of security agents, who characterized my linking as “transferring [classified] information from Wikileaks.org” to my own, unclassified, blog. I learned later that Diplomatic Security had been monitoring my State Department computer to ensure I did not misuse it. Security also searched my official email back several years and interviewed my neighbors looking for, well, something to use against me.
It was a lot of effort by a busy organization over what, even if it had been as they portrayed it, a pretty minor matter.
Clinton v. Manning: Protecting Classified Information
And of course during the Bradley/Chelsea Manning trial, itself concerning State’s Secret level cables, Hillary Clinton was clear on her position: “I think that in an age where so much information is flying through cyberspace, we all have to be aware of the fact that some information which is sensitive, which does affect the security of individuals and relationships, deserves to be protected and we will continue to take necessary steps to do so.”
I’ve focused here on my own situation not because it was important nationally, or out of bitterness (OK, maybe a little, I’m human) but primarily because it is the example I know most about.
But there are others.
The Intercept points out NSA whistleblower Tom Drake, for instance, faced years in prison, and ultimately had his career destroyed, based on the Obama DOJ’s claims that he “mishandled” classified information (it included information that was not formally classified at the time but was retroactively decreed to be such). Less than two weeks ago, “a Naval reservist was convicted and sentenced for mishandling classified military materials” despite no “evidence he intended to distribute them.” Last year, a Naval officer was convicted of mishandling classified information also in the absence of any intent to distribute it.
John Kiriakou was sent to prison in part for his alleged mishandling of a business card, unmarked as to classification, that the CIA claimed was sensitive. Robert Maclean, at TSA, lost his job because he revealed unclassified information that was later retroactively classified.
There are many examples.
What it means…
You are welcome to say what you wish about the merits or lack thereof of how I was treated by the State Department when the issue was handling of classified information. This article is not to open an old can of worms. I retired from my 24 years at the State Department and that’s that as far as that’s concerned.
The point here instead is that State appears to have a sliding scale of how it sees possible security violations by its employees — Hillary Clinton and me, in this instance. Because while all this was happening with me in 2011, Clinton was running her own email system, unclassified in name but with classified materials in fact.
And when you have double standards, as everyone knows, you really have no standards at all.
BONUS: That photo’s of me, on my last day of work at State, wearing my ‘Free Bradley Manning’ T-shirt on campus. Manning, of course, is in jail for disclosing Secret-level information. I lost my job over purported confidential information. Hillary’s server contained above Top Secret information, the same level of information Edward Snowden is accused of disseminating.
He has nonetheless spent 13 years inside Guantanamo living in a cage, and he is dying. The United States refuses to release him. He now weighs only 75 pounds.
So you know, the photo here shows an American POW from WWII who weighed 75 pounds.
A lawyer for Tariq Ba Odah has asked a federal judge to order his release because of his “severe physical and psychological deterioration.” On Friday, for the third time, the Justice Department asked a judge to extend its deadline to respond, saying the administration needed another week “to further consider internally its response to petitioner’s motion.”
Tariq Ba Odah, in Guantanamo with no trial and no conviction and no hope of release otherwise accordingly, has been on a hunger strike since 2007 and now weighs less than 75 pounds. He is living testimony that the United States continues to torture its enemies. He is living testimony that the United States fears 75 pound men.
So you know, the photo here shows people from a WWII concentration camp who weighed 75 pounds.
Tariq Ba Odah has been held in Guantanamo for more than 13 years. The Pakistani Army captured him along the Afghan border, and he is accused of having gone to the region to fight with the Taliban and of having received some weapons training.
In his U.S. government file, he is “assessed” to have been an Islamic extremist and a “possible member” of al Qaeda. It says he “probably” manned a mortar at Tora Bora in Afghanistan. He is “reported” to have been an “important man” with al Qaeda. The file notes that he watching videos on TV about the bombing of the USS Cole, information worth including apparently.
It seems incongruous that an important man in al Qaeda would have the job of mortarman.
It is likely that tens of thousands of young men, maybe more, fought and continue to fight against the United States in Afghanistan. Only a handful are in Guantanamo. Vengeance 14 years after 9/11 is impersonal and arbitrary and thus somehow even more evil.
So you know, the photo here shows a dog that has been starved to the edge of death.
As far as releasing Tariq Ba Odah, the New York Times reports State Department officials say that the government should not oppose his release, citing his medical condition and the incongruity of sending American diplomats to ask other countries to take in such detainees even as the Justice Department fights in court to prolong their detention.
But Defense Department officials say that not contesting Ba Odah’s lawsuit would create an incentive for other detainees to stop eating, causing problems at the military-run prison. Justice Department litigators, who the Times claims have the job of “defend[ing] the government’s authority, are also fighting Ba Odah’s petition.
Why do educated men and women at the Department of Justice, cognizant of the irony of their actions given the name of where they work, do this? They’ll say, perhaps to themselves in some death-bed moment of desperate remorse, that they were only following orders. One hopes their god is more understanding, because we have heard that one before at Nuremberg.
Despite continued forcing of food up Ba Odah’s anus or down into his stomach against his will and under restraint, Ba Odah appears to have developed an underlying medical problem that is preventing his body from properly absorbing nutrition no matter how much he is force-fed. The U.S. continues to force-feed him nonetheless.
At this point someone will be asking: why doesn’t Ba Odah just eat?
It is likely Ba Odah himself has thought about the same question. In my former career working for the Department of State, I was responsible for the welfare of arrested Americans abroad. Many threatened hunger strikes for reasons ranging from superficial to very serious. However, in my 24 years of such work, only one prisoner carried it out for more than a day or two, taking only small sips of water for a week. His captors, one of America’s closest allies in Asia, choose to not force-feed him, stating due to the nature of his “political crime” (espionage) that they’d prefer to see him die.
During my daily visits I watched the man starve to death in real-time. It requires extraordinary will and strength to do that, pushing back against all of evolution and biology screaming inside your head to just eat. Close to death, the man choose to stay alive and eat for the sake of his family. It is no casual decision to do what Tariq Ba Odah is doing. Something very important must be at stake for a man to do what Tariq Ba Odah has done.
For eight years.
And for those who have trouble with the images, I’ll suggest you not support the politicians and policies that create them. And just because you don’t look at them, that doesn’t make them go away for the real people in Naval Station Guantanamo Bay, Cuba.
Chelsea Clinton was, like William and Harry, born into royalty. Chelsea is only 35 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 — as long as your last name is Clinton.
Chelsea’s latest faux-accomplishment is to announce she will write a children’s book, It’s Your World. Crazy coincidence: it will be published just weeks before the 2016 election when Mother Hillary will be hoping to follow Father Bill into the White House. Chelsea’s hard-hitting book, under the sub-heading “Get Informed, Get Inspired and Get Going!” will address issues such as poverty, access to education, and gender equality. Another coincidence: those are basically her mother’s campaign themes.
Clinton the Younger is no stranger to the world of Clinton favors and corruption.
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.
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, 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 $$$$$$$$
In addition to her gig at NBC, Chelsea also serves Vice Chair of the Bill, Hillary and Chelsea Clinton Foundation.
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. Chelsea holds another academic post, salary unknown, as assistant vice provost for the Global Network University at New York University.
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.
A feature of oligarchy is the dynastic ascension of new leaders, children who rise to positions of power and wealth simply by the luck of birth. We welcome Chelsea Clinton to the club.
There is a lot to say about this day, when 70 years ago, the United States became the first and only nation to use nuclear weapons.
So much is said every day about Iran and nuclear weapons, and terrorists and nuclear weapons, Putin with nuclear weapons and so forth, but that one fact remains among all the blather. For all the talk, only America has dropped the bomb.
We did it twice (the Nagasaki bomb was on August 9) and we did it on two civilian targets. There is no use arguing that the two cities had significant military value; if there had been, they would have already been firebombed to tinder the way Tokyo and other cities in Japan had been. Nagasaki was a port, but not far away was the major naval base at Sasebo, which some say was not bombed because the U.S. planned to take possession of it after the war for our own navy (we did.) Both cities had some defense industry, but pretty much any place in Japan larger than a village also did.
Civilians were not, in today’s language, collateral damage. They were the targets. The image above shows what one child victim then looked like as an adult.
Please think of him when you hear some American say the Japs deserved it.
So we’ll leave it at this. As part of my research for my next book, Hooper’s War, I found this, below, an accounting by the United States of the exact, precise number of school children it killed on that hot August morning in 1945.
The measure, which passed by a voice vote after only a 15-minute debate, in theory aims to prevent “lone wolves” from traveling abroad to join a terror organization, or, if their passports are revoked while they are abroad, from returning to the United States.
“The Benedict Arnold traitors who have turned against America and joined the ranks of the terrorist army ISIS should lose all rights afforded to our citizens,” Ted Poe (R-Texas), the bill’s sponsor, said. “These people are not returning to America to open coffee shops, they are coming back to kill. We must stop them from coming back at all.”
The full text of the three-page bill is quite open-ended as to how this process will work, stating the criteria only as “aided, assisted, abetted, or otherwise helped an organization the Secretary of State has designated as a foreign terrorist organization.”
The travel restriction requires no presumption of innocence for the targeted individual, no explanation, no public presentation of evidence, no opportunity for a defense, no checks and balances on the power. The bill does not outline any appeals or other forms of due process for the target. The only stipulation is that the Secretary of State report the action to the Senate Committee on Foreign Relations and the House Committee on Foreign Affairs in either classified or unclassified form. Senate approval is required for the new bill to become law.
The Bill represents another step for a government that increasingly seeks to control its citizens by arbitrary standards (see the No-Fly list). But the bill is evolutionary, not revolutionary.
The Government of the United States has had for some time the ability to take away passports from American Citizens because “The Secretary of State determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.” That sliver of law means if the government feels it is against its interest for you to have a passport and thus the freedom to travel, to depart the United States if you wish to, it will just take it away. The law allows them to do this prospectively, the “or are likely to cause…” part of the law, meaning you don’t need to have done anything. The government just needs to decide that you might.
The last public use of this law was in 2011, when prior to having him and his 16-year-old son away blown away via drone, Secretary of State Hillary Clinton secretly revoked the passport of Anwar al-Awlaki, al Qaeda propagandist and U.S. Citizen.
I have been unable to track down other recent public examples where the U.S. Government revoked the passport of an American simply because his/her presence abroad bothered – or might bother – the Secretary of State. In fact, the only example I was able to locate was that of infamous ex-CIA officer Philip Agee, who in the 1970’s exposed CIA officers identities. It was Agee’s case that prompted a Supreme Court review of the Department of State’s ability to revoke passports simply because the government didn’t want you to travel abroad (the Supreme’s upheld the government’s ability to do so based on a 1926 law after lower courts said no.
The Court stated “The right to hold a passport is subordinate to national security and foreign policy considerations.”
For a nation that goes out of its way to tell everybody else what to do about freedomism, and which still has, on paper at least, Constitutional Fourth Amendment guarantees against unlawful search and seizure, America fails miserably in assuring its citizens their rights.
In fact, according to a UN study, the self-proclaimed “Exceptional Nation” ranks with China, Bolivia and Djibouti. Yea us!
A United Nations Human Rights Committee issued midterm report cards for several countries based on how well they adhered to and implemented its recommendations related to the International Covenant of Civil and Political Rights, an international treaty outlining the rights of all individuals. The U.S. performance overall was “not satisfactory.”
In particular, the committee noted that the U.S. government failed to establish an adequate oversight system to make sure privacy rights are being upheld, and failed to make sure that any breaches of privacy were regulated and authorized by law, such as requiring a warrant. The lowest grade reflected America’s failure to “ensure affected persons have access to effective remedies in cases of abuse.”
The committee also expressed dismay at the U.S. failure to “establish the responsibility of those who provided legal pretexts for manifestly illegal behavior.”
Last year, the Human Rights Committee submitted recommendations to the United States on areas where it could improve the privacy rights of its citizens, following revelations made by NSA whistleblower Edward Snowden. But according to the midterm review, many of those suggestions were not addressed.
So shut the hell up Americans. You’ll get your freedom when and if the authorities decide to give any to you.
Retired general and former Democratic presidential candidate Wesley Clark on Friday called for World War II-style internment camps to be revived for “disloyal Americans.”
In an interview on MSNBC in the wake of the mass shooting in Chattanooga, Clark said that during World War II, “if someone supported Nazi Germany at the expense of the United States, we didn’t say that was freedom of speech, we put him in a camp, they were prisoners of war.”
(During WWII, the United States detained over 11,000 ethnic Germans in the U.S. The government examined the cases under the Alien and Sedition Acts individually in a form of limited due process, and detained relatively few in internment camps. However, over 120,000 Japanese-Americans were sent off to camps without any form of due process. Most Americans consider these actions along the most shameful abuse of government power and civil rights since the abolition of slavery. The United States continues to pay reparations to those interned.)
Clark called for a revival of internment camps to help combat Muslim extremism, saying, “If these people are radicalized and they don’t support the United States and they are disloyal to the United States as a matter of principle, fine. It’s their right and it’s our right and obligation to segregate them from the normal community for the duration of the conflict.”
(It is unclear what “conflict” Clark is referring to, but we can assume it is the undeclared war on an idea, terrorism. Terrorism has existed roughly since the beginning of civilization, so the duration of any conflict against it seems open-ended.)
Clark’s proposal appears to be based on the concept of targeting people for government scrutiny who are not “radicalized,” whatever that means, but who the government, or perhaps just Clark by himself, decides may become radicalized at some unspecified future date.
“We have got to identify the people who are most likely to be radicalized. We’ve got to cut this off at the beginning,” Clark said. “I do think on a national policy level we need to look at what self-radicalization means because we are at war with this group of terrorists.”
For those keeping score, Clark’s proposal would violate, at a minimum, the rights to free speech, due process and habeas corpus, and cruel and unusual punishment, all the while setting a precedent for “thought crime” in the United States.
Here’s the interview. Please note how the MSNBC drone interviewer does not challenge Clark in any way:
In the next release of statistics from the FBI and DHS about how many terrorist plot they have foiled, remember this one is included.
A 17-year-old Virginia teen, Ali Shukri Amin, faces up to 15 years in prison for contributing to Coin Brief and for Tweets about encryption and Bitcoin. He recently pleaded guilty to providing material support to Islamic State for all that. Amin was a high school honors student in suburban Virginia until his arrest.
Dana Boente, the U.S. Attorney for the Eastern District of Virginia, said the youth’s guilty plea “demonstrates that those who use social media as a tool to provide support and resources to ISIL will be identified and prosecuted with no less vigilance than those who travel to take up arms with ISIL.”
According to the defendant’s signed “Admission of Facts,”, Amin joined Twitter last June and acquired some 4,000 followers and tweeted about 7,000 times.
Here’s what, according to Amin’s court documents, landed him in prison:
— An article he wrote explained what Bitcoins were, how the Bitcoin system worked and suggested using a new Bitcoin wallet, which keeps the user of Bitcoins anonymous. The article included statements on how to set up an anonymous donations system to send money, using Bitcoin, to the mujahedeen.
— Amin tweeted that IS needed an official website and that IS should stop releasing propaganda “in the wild” and instead should consider using JustPaste.it.
— Also also Tweeted this link about Bitcoin.
— According to the government, Amin, “Through various tweets, provided information on how to prevent a website from being taken down, by adding security defenses, and he solicited others via Twitter to assist on the development of the website.”
— On his blog, Amin “authored a series of highly technical articles targeted at aspiring jihadists and ISIL supporters detailing the use of security measures in online communications to include the use of encryption and anonymity software, tools and techniques, as well as the use of the virtual currency Bitcoin as a means to anonymously fund ISIL.”
Amin, who apparently never left his suburban home, is also accused of “radicalizing” an 18-year-old Virginia youth who later traveled to Syria. Amin admitted that he helped the boy get a mobile phone, assisted him with travel, gave him a ride to the airport in his parents’ car and pointed him generally to where he would find IS supporters in Turkey.
Let’s Be Afraid
Critical to understanding how terrifying this arrest and prosecution are is understanding that Amin is going to jail not for what he wrote, but to whom he wrote to and, apparently, what he was thinking when he wrote it.
In other words, information, some of it amazingly technical, is splattered all over the web about Bitcoin, security, encryption and the other topics the high school kid wrote about. The processes are the same whether the money is going to your cool Kickstarter indie band project, or to Islamic State. Amin did not add anything special to the huge pile of info out there.
Instead, he was busted because he Tweeted and blogged openly in the direction of Islamic State. He was thinking nice thoughts about IS while doing it. There is no indication that IS asked him to do this, or responded to him, or even acted on any information he posted.
It is worth noting that IS, like you, could Google “Bitcoin” or any other of Amin’s subjects and read as much material as they wished. In such a case, would those websites also have some culpability toward supporting terrorism?
The limited assistance to the other boy in traveling notwithstanding, Amin seems to be headed to Federal prison for a thought crime tied up in violations of his First Amendment rights.
Keep that in mind before you blog, Tweet, update your Facebook or click on some of the links above, because the Feds are watching.
Social media sites such as Twitter and YouTube would be required to report “terrorist” videos and other content posted by users to federal authorities under legislation approved this past week by the Senate Intelligence Committee.
The measure, contained in the 2016 intelligence authorization, still has to be voted on by the full Senate. The measure applies to “electronic communication service providers,” which includes e-mail services such as Google and Yahoo. “Posted content” would likely also apply to readers’ comments, and in theory to authors’ postings such as this one.
Companies such as Twitter have recently stepped up efforts to remove terrorist content in response to growing concerns that they have not done enough to stem whatever the government deems propaganda. Twitter removed 10,000 accounts over a two-day period in April. Officials want more. “In our discussions with parts of the executive branch, they said there have been cases where there have been posts of one sort or another taken down” that might have been useful to know about, a Senate aide said.
The snitch bill is modeled after a federal law — the 2008 Protect Our Children Act — that requires online firms to report images of child pornography and to provide information identifying who uploaded the images to the National Center for Missing and Exploited Children. The center then forwards the information to the FBI. Of course actual images of child porn are pretty straightforward to notice, exploit innocents and involve no legitimate protected speech.
But otherwise, sure, it’s the same thing. Statement: I Like Terrorism = Child Rape Images.
Industry officials privately called the new law a bad idea only because it sounds like an expensive hassle for them. “Asking Internet companies to proactively monitor people’s posts and messages would be the same thing as asking your telephone company to monitor and log all your phone calls, text messages, all your Internet browsing, all the sites you visit,” said one official.
Wait, isn’t that what we’ve been told the NSA has been doing to us since 9/11?
Still, national security experts who will likely personally profit from the measure say it makes sense. “In a core set of cases, when companies are made aware of terrorist content, there is real value to security, and potentially even to the companies’ reputation,” said Michael Leiter, a former director of the National Counterterrorism Center, now an executive vice president with Leidos, a national security contractor. “Rules like this always implicate complex First Amendment and corporate interests. But ultimately this is a higher-tech version of ‘See something, say something.’”
But what about those nasty First Amendment issues?
“The intelligence bill would turn communications service providers into the speech police, while providing them little guidance about what speech they must report to the police,” said Gregory Nojeim of the Center for Democracy and Technology. “The natural tendency will be to err on the side of reporting anything that might be characterized as ‘terrorist activity’ even if it is not. And their duty to report will chill speech on the Internet that relates to terrorism.”
America: A nation of snitches, watching each other, reporting whatever thing we think is suspicious or terrorism. To The Authorities. But it’s for our own good, right Citizens? I think I saw a Twilight Zone like that. No, wait, it was the McCarthy Era, sorry.
This week marks the fourth anniversary of the beating death of American Citizen Kelly Thomas at the hands of the Fullerton Police. All three cops seen in the video were found not guilty. The victim, Kelly, is shown in the hospital just before his death.
I’m sorry if the image offended you, or if you are thinking of clicking away and unfollowing me on Twitter, but I am offended by what is happening in our country.
Who the Cops Work For
Kelly Thomas was a homeless man diagnosed with schizophrenia who lived on the streets of Fullerton, California. He was known to frequent an alleyway near a swanky restaurant. The owner didn’t like that, and allegedly phoned in a fake 911 report that Thomas was vandalizing cars to get the Fullerton Police on the scene to “take care” of the problem.
The cops did their job. The really cleaned up the stain of a homeless guy getting in the way of someone making money.
Kelly Thomas was beaten and killed by cops Jay Cicinelli, Manuel Ramos, and Joseph Wolfe on July 5, 2011. Thomas was comatose on arrival at the hospital, where he was taken after the three cops had had their fill of beating him. He never regained consciousness, and died on July 10, 2011.
For nine minutes and 40 seconds, the officers pummeled Thomas to the ground, with Ramos delivering volleys of punches and beating Thomas with his baton and Cicinelli tasing the homeless man twice in the face.
Choked on His Own Blood
Medical records show that bones in Thomas’ face were broken and he choked on his own blood. The coroner concluded that compression of the thorax made it impossible for Thomas to breathe normally and deprived his brain of oxygen. The cops who beat him into that condition did not render any first aid on the scene, which may have saved their victim’s life.
Officer Manuel Ramos (the cop at the beginning of the video who asks “See my fists?”) was charged with one count of second-degree murder and one count of involuntary manslaughter; Corporal Jay Cicinelli and Officer Joseph Wolfe were each charged with one count of felony involuntary manslaughter and one count of excessive force.
All three pleaded not guilty.
Justice, American Style
A judge declined to dismiss the charges against the officers in January 2013, finding that “a reasonable person could infer that the use of force was excessive and unreasonable.” The case went to trial and Ramos and Cicinelli were found not guilty of all charges. Following the verdict for the two officers, the district attorney’s office announced it would not pursue the case against Officer Wolfe.
The defense argued cops must protect themselves when they believe they are in danger, without fear of prosecution for handling the incident with force.
If this wasn’t wrong, then nothing can ever be wrong.
So here we skip over to Afghanistan.
As the UN Women’s Goodwill Ambassador, important actress Emma Watson (pictured above in traditional Afghan garb) has spent the last year trying to convince men that women’s equality is more than just a women’s issue. In the U.S., her “He for She” campaign gained the support of celebs like Joseph Gordon-Levitt, who tweeted about it, and Steve Carell, who wore the campaign logo on his cufflink at the Oscars. Because of that tweet, and those now-famous cufflinks, women’s equality has been forever fixed in the Homeland.
Ambassador Watson now has set out to complete her journey by taking the “He for She” struggle to Afghanistan. Apparently the Taliban, whom the U.S. is almost done defeating after 14 years of war, are not nice to their female property, and Emma is so on that thing.
To kick off the UN campaign’s launch in Afghanistan last week, “local activists,” (i.e., a few women rounded up and paid taxi fare to attend) government officials (i.e., a few thugs who live off foreign graft rounded up and paid taxi fare to attend), and foreign dignitaries (i.e., a few UN interns rounded up and paid taxi fare to attend) met at a Kabul high school to demonstrate how men play an integral role in the fight for women’s rights. Using the slogan “A brave man stands for women,” activists took the stage and shared stories that attempted to reposition the fight for women’s rights as a courageous and valiant undertaking.
The underlying message was that gender equality can’t be achieved unless men change the way they view women. It’s a major shift in tactics considering that up until recently, gender equality in Afghanistan has been framed largely as a cause taken up by women.
Super quick reality check: So this has been the problem all along! The Taliban, and the thugs who preceded them, as well as the corrupt men who have been running Afghanistan for the last fourteen years of freedom under the direct supervision of the United States, just didn’t know that it was “a guy thing.” All those “honor killings” and rapes and child brides and murder of women, or that thing last month when a mob in downtown Kabul lynched a 27-year-old woman for allegedly burning a Quran, are just a perception issue.
Easy fix. Ambassador Watson and the UN have set a lofty goal of acquiring signatures from 3,000 Afghan men and boys pledging to stand up for women’s rights on the “He for She” website (it is unclear 3,000 Afghans of any gender have access to the Internet.) It’s part of a broader aim to acquire pledges from one billion men and boys worldwide by the time the UN General Assembly convenes in September.
This is all off to a great start — Emma’s website currently boasts 327,488 signatures! The bad news: the majority of them originated in the United States. Only 325 signatures came from Afghanistan, most likely from people rounded up and paid taxi fare to visit one of Kabul’s fine Internet cafes.
But the program is not just sitting on its hands. It will fix all gender problems further in Afghanistan by gaining endorsements from “Afghan celebrities,” and screening a documentary film telling human-interest stories depicting the plight of Afghan women.
And if all that fails, Ambassador Watson, who starred in the Harry Potter movies as empowered wizard Hermione Granger, will just wave her wand and shout “Reparo!” Come to think of it, that might have a better chance of helping than the rest of this silliness.
Five points to Gryffindor!
America used to be a country with balls. Now, our government wants to make us into a nation of scaredy cats, existing in a state of constant fear and near-panic, like we were kids worrying if the school bully was waiting for us after school.
Here’s the basic theme for this weekend: Americans need to remain vigilant to the threat of a terrorist attack, the chairman of the House Homeland Security Committee, Michael McCaul, warned. He said there has been increased chatter on social media that indicates terrorists may be planning to strike during the celebrations. “I am extremely concerned Syrian and ISIS recruiters can use the Internet at lightning speeds to recruit followers in the United States and then activate them to do whatever they want to do. Whether it’s military installations, law enforcement or possibly a Fourth of July event parade.”
“I wouldn’t be surprised if we’re sitting here a week from today talking about an attack over the weekend in the United States. That’s how serious this is,” former CIA deputy director Michael Morell told CBS. “There’s been about 50 people in the last 12 months who have been arrested in the United States for being radicalized by ISIS, wanting to go fight there or wanting to conduct an attack here.”
USA Today added to the fear-mongering, noting “While there was no specific or credible threat of attack, the official said the intelligence bulletin prepared by the Department of Homeland Security and the FBI alerted local colleagues to the ongoing threats posed by the Islamic State and other homegrown extremists. The official was not authorized to comment publicly.”
So let’s break this down, ahead of your BBQ, beach time and backyard sparklers.
America has suffered one significant foreign terror attack in the 239 years since the July 4th we celebrate this weekend. That attack was fourteen years ago and while tragic, took a similar number of lives has the number of Americans who have died since from toxoplasmotic brain parasites. The 2011 Report on Terrorism from the National Counterterrorism Center notes Americans are just as likely to be “crushed to death by their televisions or furniture each year” as they are to be killed by terrorists. Perhaps even sadder, about double the number of Americans killed on 9/11 have died in the still-ongoing wars in Iraq and Afghanistan.
Disagree with one set of numbers, pick your favorite statistic/comparison, but you get the idea.
Noteworthy is that while fourteen years ago, and for most of the succeeding years, is that the government warned the attacks were to be carried out or threatened by foreigners. This weekend’s warnings, however, point at Americans who want to do harm to other Americans. That seems to be one of the most significant “achievements” of the fourteen year war of terror, turning us into them.
So this July 4, in honor of America’s 239th birthday, our government tells us not to be brave and free, but to be scared and fearful. We need to watch around us, and we need especially to watch our fellow citizens. One of them might be a lone wolf, supposedly “radicalized” by 140 characters he read on Twitter. We are to balance in our minds the conflicting images of a government that takes away our civil rights and pisses away our tax dollars to protect us while simultaneously saying they may not be able to protect us.
Whatever you do this July 4th, don’t look for me there. I’ll be at home, doors locked, weapons cocked and ready in abject terror, trying not to remember what I’ll be drinking to forget. Happy Birthday America.
“In one lousy week, everyone is taking down the Confederate flag, gays can now get married and people — even the blacks — can buy that Obamacare. It has just not been a good one for us. I even heard Cracker Barrel and Waffle House are switching away from trans-fats,” said spokesbigot ‘Clem’ (who isn’t sure that’s his real name.)
“So what do you do? You fight back! The South will rise again!” shouted a second spokesredneck, letting out both a loud fart and a rebel yell from the broken down barco-lounger on his dilapidated front porch he could not rise from due to weighing 300 pounds and thus having to dress in a large Hefty bag.
“Fighting back” in this instance is taking the form of actual slavery.
“While it didn’t work out in the long game with Africans, oh, excuse me, ‘African-Americans,’ we want to try it again with other white people. We intend to enslave each other, kind of top and bottom, or least that’s what I heard. Or maybe it was on the online; Jeb just bought him a new modem for the AOL. Anyway, we’ll preserve the great Southern heritage and culture of dehumanization, narrow-mindedness and hate the only way we can at the present time, with white slaves.”
“There are some details. First, we’ll need to come up with some good racial slurs to refer to each other as. The lame Supreme Court took away our good ones, so that’s a big issue right up front. Next, there is finding enough whites to be the slaves. We have a bunch of the good old boys down here wanting to volunteer, but we are also looking overseas, maybe to one of those European countries with a debt problem, to see if we can harvest some there. We’d kind of like to stick to the traditional way of bringing the slaves in by old-timey ships. Might attract some tourists, too.”
“As for our manly essences, we will still spill them in service to the Lord’s decree that we reproduce. But if the Supreme Court wants us to be ‘fair,’ well, nobody is gonna be allowed to get married. We’ll do it in line with our culture, the way it has always been done: with our animals, our cousins, and our slaves.”
“The government thinks it can take away our freedom to take away other people’s freedom, but we intend to show them.”
USAID just got caught wasting $769 million not supporting Afghanistan’s education sector.
How could this happen?!? As a public service, here are your step-by-step instructions.
— Start with the premise that schools in a wasteland like Afghanistan in support of a failed American policy are more important uses of American taxpayer money than schools in America (which is socialism, or a handout, or whatever, Ayn Rand.)
— Send incompetent people (see below) to Afghanistan with a lot of money, say $769 million. Tell them to build schools. If you don’t have enough in-house incompetent people, like USAID, hire contractors, like USAID did.
— Make sure those people never travel to where the schools are being built. Instead, have them rely on a known corrupt government to tell them where to spend the money. In our instant case, former ministry officials who served under President Hamid Karzai provided false data to USAID regarding the number of active schools in Afghanistan.
— Make sure, as USAID, while spending all that money, not to ask if there are any schools actually being built. Instead, sit back and look the other way as Afghan officials doctored statistics, embezzled money, and interfered with university entrance exams to make it seem schools existed. These allegations suggest that the U.S. and other donors may have paid for ghost schools that ghost students do not attend and for the salaries of ghost teachers who do not teach.
— Despite this, as USAID, announce at every opportunity that education programs are among your most successful work in Afghanistan. For example, USAID cited a jump in students enrolled in schools from an estimated 900,000 in 2002 to more than eight million in 2013 as a clear indicator of progress.
— Make sure all your data supporting these successes is unverifiable, coming only from the Afghan Ministry of Education. Appear surprised when you learn, years and $769 million later, that the data has been falsified. Do not conduct any investigation of your own. Wait and see if some inspector general notices. You know most of the media won’t.
— Ignore the fact that accurate data is essential for gauging progress and for making future funding decisions. Congress will help with this.
— Make sure you have bosses in the field and at the State Department in Washington who do not care about accurate metrics or real results.
— Repeat this process for fourteen years of the Afghan War.
I’m no Ed Snowden, but one of the reasons I am able to write this blog is because I had great lawyers in my fight against the State Department who were willing to work pro bono on my behalf.
The one thing Snowden and I do really have in common is that we are represented by the same group of lawyers, the men and women at the Government Accountability Project (GAP) and the American Civil Liberties Union (ACLU). The ACLU can always use a financial hand, but today’s request for help is aimed specifically at the Government Accountability Project.
The Government Accountability Project’s office which works specifically on national security whistleblower cases and represents clients who cannot afford legal fees for free, is facing a funding crisis. You can imagine the legal efforts that have been necessary to help Snowden, Tom Drake, John Kiriakou, Bill Binney (and me) through sometimes years of government efforts to silence them.
The government has lots of money and resources; whistleblowers have only the Government Accountability Project.
So here it is: please go to the Government Accountability Project GoFundMe page and give something.
They have a group lined up to offer matching donations, so even a small contribution doubles itself automatically. Your donation is tax-deductible in the U.S. You can donate anonymously.
The next whistleblower who will change history is out there, sitting in some government office, wondering if s/he will be alone when it is time to act on conscience and tell you the kind of things only someone inside the system can know. If you read this blog, I know you want to help him or her. Now, there is a way.
FYI: I receive no money from any of this. My only association with the Government Accountability Project is as their legal client. They saved me and I’d kneel on broken glass if I thought that would help them continue their work.
The cops admit there had been no crime committed. They arrived at the scene to discover two women, one white and one black, unhappy over some minor parking lot thing at their children’s elementary school.
Everyone admitted no damage had been done to either car. The women had already separated themselves, and neither had committed or threatened any violence.
There was nothing to see or do, and in fact no reason for the cops to even be there.
Yet within minutes (the action begins around 4:40 into the video, below) the scene involved two cops throwing the pregnant black woman, Charlena Michelle Cooks, to the ground, cuffing her and arresting her for resisting arrest. All because she did not identify herself quick enough for the cops. FYI: the cops did not ask the white woman for ID in the video.
Nonetheless, officials with the city of Barstow, California insisted officers had acted properly when they used force to arrest a pregnant woman who refused to show them her identification, even though the charges were later dismissed.
“I actually do have the right to ask you for your name,” the officer replies.
“Let me make sure,” Cooks says as she makes a phone call to someone.
The officer says he will give Cooks two minutes to verify his right to ask for her identification. But less than 20 seconds later, the officer and a colleague are performing a painful wristlock takedown on Cooks. The pregnant woman screams as she is forced belly first into the ground.
American Civil Liberties Union attorney Adrienna Wong pointed out that Cooks had a right to refuse to show her ID.
“Even if an officer is conducting an investigation, in California, unlike some other states, he can’t just require a person to provide ID for no reason. Officers in California should not be using the obstruction law, Penal Code 148, to arrest someone for failing to provide ID, when they can’t find any other reason to arrest them,” Wong added.
“Imagine getting wrestled to the ground and handcuffed in front of your child’s elementary school,” another ACLU attorney remarked. “Imagine interacting with other parents afterwards. Imagine what kids who saw the incident tell your child. And if you think the whole incident happened because of your race, how does that impact your view of police?”
To make matters worse, Cooks was banned from her daughter’s school until the charges were dismissed.
In a separate settlement with the ACLU prior to the Cooks incident, the City of Barstow had already agreed to provide training to its officers after two brothers were arrested for refusing to provide identification. Charges against the brothers were dropped and the city agreed to pay $30,000 in damages.
Only a scant 14 years after 9/11 opened the door to unprecedented government violations of the rights of American citizens, what has come to be known as the Post-Constitutional Era, there are small signs that our somnolent courts are slowly rousing.
The Case of Jae Shik Kim
A federal judge determined the search of a traveler’s laptop without a warrant as he was leaving the country was unreasonable, in a ruling that could help derail the government’s long-held search criteria for international travelers.
In the case, the U.S. District Court of the District of Columbia allowed defendant Jae Shik Kim to suppress key evidence the government found after searching his laptop at Los Angeles International Airport. The Department of Homeland Security suspected Kim of illegally selling aircraft parts to Iran and seized his computer before allowing him to board a flight home to Korea in December 2012. The government cloned Kim’s hard drive, shipped it off to a forensic lab, and searched it, uncovering a series of alleged “incriminating emails” that formed the basis for the government’s case against Kim.
The court concluded the government not only conducted an unreasonable search, but further violated the Fourth Amendment by shipping the computer to a second location where they continued the extensive search.
The judge wrote:
The government points to its plenary authority to conduct warrantless searches at the border. It posits that a laptop computer is simply a container that was examined pursuant to this authority, and it submits that the government’s unfettered right to search cargo at the border to protect the homeland is the beginning and end of the matter.
But to apply those principles under the facts of this case would mean that the border search doctrine has no borders. The search of the laptop began well after Kim had already departed, and it was conducted approximately 150 miles away from the airport [at the forensics lab]. The government engaged in an extensive examination of the entire contents of Kim’s hard drive after it had already been secured, and it accorded itself unlimited time to do so.
There was little or no reason to suspect that criminal activity was afoot at the time Kim was about to cross the border, and there was little about this search — neither its location nor its scope and duration — that resembled a routine search at the border.”
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, or as long as they are waiting for their outbound flight, as Mr. Kim was in the case above, and are thus fully covered by the Bill of Rights.
Wrong. And the irony that a person can be separated from his Constitutional rights by a border marked by a pane of glass is not to be missed.
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.
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 or leaving 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.
The same process works in reverse; at some point as you depart the U.S., the government believes you are “outside” and thus lack any Constitutional protections. That’s what happened to Mr. Kim.
What once were modest exceptions in Constitutional America 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.
Back to the Kim Case
Hanni Fakhory, for Electronic Frontier Foundation, said the opinion in the Kim case wasn’t binding like an Appellate or Supreme Court decision that requires other courts have to follow suit. “But it’s persuasive because it adds to the growing body of case law that says digital devices are different,” he said.
That means the next time the government searches someone’s phone, tablet or laptop on suspicion of criminal activity, a defense attorney can use the case as an example of an invalid forensic search, a deeply invasive search that reveals old emails, call records and other information that can’t be obtained just browsing through one’s device. It is a start.
BONUS: The Supreme Court ruled last year in Riley v. California that law enforcement cannot search a cell phone during an arrest without a warrant.
It got me. Paranoia. Who is watching? What are the consequences in a September 12 world of things that used to be innocent?
I began researching materials online that advise, in English, how someone might travel to Syria and join Islamic State (IS). Several media outlets mentioned an ebook IS created along those lines, but none linked to it or dove deep into what it said. I set out to find it, Googling away with “how to join Islamic State,” and “advice for jihadi travel.” I eventually found the ebook with the term “hijrah.” Used in canon to refer to Mohammad’s journey from Mecca to Medina, the word today colloquially refers to those who leave home for jihad.
The ebook is brief, titled simply Hijrah to the Islamic State, some 50 pages with pictures and maps. The advice is mostly stuff you’d think people could figure out on their own. Bring a sturdy backpack, don’t tell Turkish immigration officials you are headed to Syria, don’t call attention to yourself in the airport, that sort of thing. There are a bunch of Twitter handles included so you can make contact with IS, but the few I checked were dead accounts.
You could probably do better with Lonely Planet (which also advises travelers not to call attention to themselves, but to avoid being targeted by thieves, not anti-terror forces.) I found another site just for women seeking to join IS, assuring the traveler she’ll be in female-only accommodations and that they have diapers and baby stuff available. Otherwise, it was all about bringing books to read on the long trip and not forgetting needed medicines.
I wrapped up my research with a quick buzz through Orbitz to see flight choices. New York was the default starting point because Orbitz had it already there from my previous searches. You can fly nonstop from the United States to Turkey, and then take a taxi to the Syrian border. Flights directly into Damascus involve a couple of stops, and most require you fly out of Newark. Jihad starts in Jersey, what a hassle.
All in all, not much of story in the hijrah ebook, and certainly nothing at the they’re-seducing-our-kids-into-terrorism level, though New York Times called it “a remarkable ISIS travel guide” and authorities in the UK want to ban it from social media. The ebook is in reality near useless, except as another boogie man for westerners to point to.
But I started to worry.
Look at me: I Googled up a how-to manual for jihadis. I’d previously read al Qaeda’s Inspire magazine online (Islamic State has its own online magazine, and I read that too.) I looked into travel to Syria. I sought out a good translation of “hijrah.” Everything I did, I did from an office desk. It was all on the Internet, with no secret meetings in shadowy places. So it was OK, like going to the library, right?
But I started to panic. How long until this reached critical mass, when some piece of software went “bing!” and some new protocol was applied to me? I have an international trip planned in a few weeks (plain vanilla Asia). Will I get selected for additional screening? Will I be questioned trying to exit or, later, when I re-enter the United States? Have I become paranoid? Should I be? Is it wise or stupid to worry about these things?
I remember discussing the Jeffrey Sterling Espionage Act case, the case that at one point threatened to send reporter James Risen to jail for not revealing his sources. My friend said the case was probably one of the last of its kind. So the government learned its First Amendment lesson I asked? No, she said, next time the government won’t have to threaten a reporter; most reporters will either shy away from such stories, their editors will kill the reporting to avoid an expensive legal battle, or the government will already know who they talked to.
I’m certain I am no James Risen. I’m pretty sure I didn’t write a more detailed story about the Islamic State travel guides because there was little to say, that the links I left out above were of little value. Google works at your house, too, if you really want to see them, and you’re not afraid of that, are you? The algorithms they — whoever they are — use are smart enough to see that I’m just a curious writer, and you’re just a curious reader, and none of us plans on joining IS, right?
I still wrote a lawyer’s phone number in the back of my passport. Can’t be too careful these days, as people say. Threats are everywhere.
It comes down to things like this as citizens fight to preserve their basic rights in the face of militaristic police encounters. So let us use technology to fight back.
A new smartphone app from the ACLU (available in iPhone and Android versions) does two very good things. It allows citizens to exercise their right to video police encounters in the public space, and it guards against the cops unlawfully destroying that video to cover up their own crimes. The ACLU app accomplishes this by allowing people to auto-upload cellphone videos of police encounters to the ACLU. The ACLU will then review and preserve the video footage, even if the cops seize the phone and delete the video or destroy the phone.
In addition, once the video is uploaded, the user can delete the information from his/her phone, lessening the chance of retaliation by the cops if they discover the “evidence” during a post-arrest search.
The app features a large red “Record” button in the middle of the screen. When it’s pressed, the video is recorded on the phone and a duplicate copy is transmitted simultaneously to the ACLU server. When the “stop” button is pressed, a “Report” screen appears, where information about the location of the incident and the people involved can also be transmitted to the ACLU. The video and the information are treated as a request for legal assistance and reviewed by staff members. No action is taken by the ACLU, however, unless an explicit request is made, and the reports are treated as confidential and privileged legal communications. The videos, however, may be shared by the ACLU with the news media, community organizations or the general public to help call attention to police abuse.
The app is available in English and Spanish. It includes a “Know Your Rights” page, a library of ACLU materials in your pocket.
“People who historically have had very little power in the face of law enforcement now have this tool to reclaim their power and dignity,” said the director of the Truth and Reinvestment Campaign at the Ella Baker Center, which is working with the ACLU of California to support the launch of the app.
Who will guard the guards? We will.
The government can block your foreign husband or wife from living with you in America, based on secret information you can’t see or contest. Like with the No-Fly list, in post-Constitutional America the walls are built of secret databases.
Taking Visas to the Supreme Court
On February 23, the Supreme Court heard oral arguments in Kerry v. Din. The U.S. government is seeking a writ of certiorari agreement by the Justices to review a lower court decision granting Ms. Din and her Afghan husband judicial review of his immigrant visa—green card—application. The state department permanently denied permission for the husband to live in the U.S. because he is supposedly a “terrorist,” based on secret information that will not be shared with Ms. Din or her spouse to allow rebuttal. Under present law, the state department’s decision to refuse the green card is subject to no outside review.
Consular officers working overseas for the department of state process visas. In nearly every non-drug-related denial, the foreign spouse can get a waiver and go on to live in the U.S. Throughout the process, the American and her spouse speak directly with the primary decision-maker and be able to rebut the information used against them.
Things change significantly in security cases. The information used to refuse a visa to a “terrorist” comes from the CIA, FBI, or NSA (information is also provided by intelligence agencies in Canada and Australia) and is highly classified.
Secret Lists and Secret Decisions
How all this works is almost a mini-history of post-Constitutional America.
The State Department’s consular officers issued legal visas to all of the 9/11 terrorists, in part because the CIA failed to pass information on via the computerized Consular Lookout and Support System (CLASS). The number of records have grown 400 percent since 2001 in response, and CLASS is now one of the largest known databases in the world.
A problem with all those records is that many contain only a subject’s name, nationality, and limited identifying information. State department officers regularly wallow through screen after screen of “Muhammad, No Last Name, No Date of Birth, Born in Egypt.” The potential for misidentifying a subject is significant, but the post-9/11 mantra of better safe than sorry leans heavily toward refusal.
Mistakes Were Made
Mistakes entering people in secret databases, and mistakes of identity, are so common that online forms for making airline reservations all include a field for a redress number, a link to a Department of Homeland Security (DHS) file that shows a subject has proven he is not the targeted person. One infamous case involving a database mistake is that of Malaysian doctoral candidate Rahinah Ibrahim, who was placed on the secret No-Fly list and denied the chance to finish her degree at Stanford University. The reason? An FBI agent accidentally checked the wrong box on a paper form.
As in the Ibrahim case, the actual consular officer/decision-maker overseas in the embassy never sees the underlying reporting that led to the data entry. She simply gets an electronic indication that the info exists, and then denies the visa. State Department policies state that she should not “look behind” the computer notice. The denial is based on the assumption that someone at CIA validated the information, that the person applying for the visa is indeed the person in the secret record, and that the information represents a violation of visa law. Once fiercely independent consular officers have become deferential subordinates to anonymous intelligence agency officials.
Such blind use of secret databases is at the heart of Kerry v. Din. Ms. Din seeks judicial review of her husband’s visa denial because, without explanation, he was deemed a “terrorist.” The U.S. Court of Appeals for the Ninth Circuit said she should be entitled to that review; the government’s admonition that everyone should simply trust them to have done the right thing was rejected.
Non-Reviewability of Government Decisions
The government now wants that court decision squashed. It steadfastly defends what is known as the doctrine of consular nonreviewability. This early-20th century doctrine maintains no one has a right to a visa, and that Americans do not enjoy a right to live with their spouses. It maintains that any review necessary of a decision should be done internally by the state department itself, under criteria it establishes for itself, becoming a government decision not subject to judicial oversight.
The issue of consular nonreviewability acquired new meaning after 9/11. Key in Kerry v. Din is that the consular officer herself is not actually making any decision per se. She cannot see any of the underlying information on the watch list, and simply defers to the CIA and refuses the visa. CIA claims it did not deny any visa, and points to state.
At issue in Kerry v. Din is the narrow question of whether or not an American citizen can know, and contest, the reason why her spouse cannot live in the United States.
The broader question is more significant: in post-Constitutional America, when more and more of our lives are controlled by secret lists built of secret information of often suspect quality, such as with No-Fly, is the courtroom door open to citizens to challenge our government?
Disclosure: I am a retired consular officer, with 24 years of visa experience, and an amici to the above case.
The surveillance aircraft can be equipped with infrared and other surveillance gear that extend the intrusion into privacy far into unconstitutional territory.
When violence rocked Baltimore recently, local Police Captain Jeff Long told reporters “When you’ve got something like this, you’ve got people running all over the place, throwing rocks and looting and starting vehicles on fire and destroying vehicles like this, really the best vantage point you can get is from the air.”
Which is why city and state police took to the air in helicopters and small planes, all clearly marked.
Eyes in the Skies
Less obvious was a single engine prop Cessna and a small Cessna jet flying over the city, not during the worst of the violence, but during periods of peaceful protest. Who did they belong to?
In response to media inquiries, the Baltimore police referred questions to the FBI. The FBI initially refused to comment. They eventually released a statement claiming the aircraft worked for the Bureau, saying also “The aircraft were specifically used to assist in providing high altitude observation of potential criminal activity to enable rapid response by police officers on the ground. The FBI aircraft were not there to monitor lawfully protected first amendment activity.” The local FBI spokesperson also noted any aviation support supplied to local police must be approved at the highest levels of the FBI.
The aircraft, however, are not owned, overtly at least, by the FBI. Research done in part by the Washington Post shows the ostensible owners as NG Research, located near Manassas Regional Airport, just outside of Washington, DC. Searches of public records revealed little about the company, which could not be reached by the Post.
Understanding the Technology
The key to understanding the constitutionality of the FBI’s dragnet search is knowing what sensors were mounted on each aircraft.
According to Cessna, “when you choose Citation [the jet believed to have been overhead in Baltimore] for your surveillance and patrol aircraft, we customize your jet to fit your exact mission requirements. For example, jets can be equipped with a securely mounted EO/IR device, technology specially suited to carry out territory surveillance work such as border patrol, land-use patrol, and general policing.”
EO/IR refers to electro-optical and infrared capabilities. In this context the former can be any type of laser or telescopic device used for visible light, the latter measuring “heat,” allowing one to “see” in the dark. Stingrays, electronic devices which can monitor and/or disrupt cell phone communications, can also be mounted on such aircraft.
The FBI is also known to employ aircraft with the Wescam stabilized surveillance sensor pod, allowing high quality images to be taken under bumpy flight conditions.
Such technology has been used extensively by the U.S. military in general, and by Special Forces in the particular, in their hunt for terrorists abroad, and represents another example of the weapons of war coming to the Homeland, now aimed at Americans instead of “the enemy.”
Here’s a sample image via Ars Technica of what a zoomed out nighttime IR image can show:
The ACLU has filed a request with the FBI to learn what video and cell phone data was collected during the flights.
It is possible that the FBI was simply duplicating the visual search capabilities likely to have been employed by regular Baltimore cops and their prop aircraft. However, such duplication of effort seems unlikely. One can reasonably suppose the FBI joined the aerial surveillance with something new to bring to the party, such as more advanced observation tech.
For example, on May 1 and May 2, what is believed to be the FBI Cessna Citation V jet made nighttime flights (path recorded below), orbiting Baltimore at the relatively low altitudes for a jet aircraft of 6,400 and 9,400 feet, based on records from Flightradar24. That action would be consistent with the use of any of the surveillance devices noted above.
The constitutional questions are significant.
Civil libertarians have particular concern about surveillance technology that can gather images across dozens of city blocks, tracking the travel, actions and associations of people under no suspicion of criminal activity.
“A lot of these technologies sweep very, very broadly, and, at a minimum, the public should have a right to know what’s going on,” said Jay Stanley, a senior policy analyst at the ACLU specializing in privacy and technology issues.
If the FBI was using infrared (IR) devices overhead, that use may have constituted an unlawful search.
In Kyllo v. United States, 533 U.S. 27 (2001), the Supreme Court held that the use of a thermal imaging, or IR, device from a public vantage point to monitor the radiation of heat from a person’s home was a “search” within the meaning of the Fourth Amendment, and thus required a warrant.
Perhaps the ACLU can check if the FBI was issued warrants for most of the city of Baltimore. And then stick a fork in it people, ’cause this democracy is about done.
The Republican House and Democratic Senate reached a compromise last year that cut Supplemental Nutrition Assistance Program (SNAP; what food stamps are now called.) Republicans initially called for $40 billion in cuts, kicking millions of people out of the program altogether, including 170,000 veterans. The compromise cut $8 billion, which affects 800,000 households, according to estimates by the Congressional Budget Office.
Dollars and Sense
Dollars first. That $9 billion saved on SNAP would have paid for only 12.5 days of the Iraq War. For the Afghan War, $9 billion would pay for about one month (and that war is now in its thirteenth year, do the math.) America’s newest aircraft carrier cost $13 billion, not including development costs.
And now sense, or lack of it. A typical family on SNAP/food stamps gets $133 monthly. For three meals a day, $133 breaks down to $1.47 per meal; it is from that amount that the cuts will be taken. Almost 22 percent of American children under age 18 lived in poverty in 2012. The percentage of children under age five living in poverty is over 25 percent. Almost 1 in 10, or 9.7 percent, live in extreme poverty. Number of Americans on food stamps doubled in the last ten years. 47 million Americans now live in poverty, the highest number in two decades.
Cheaters? A Department of Agriculture report on “trafficking” in the food-stamp program found that only 1.3 percent of benefits were traded for cash.
Your takeaway: We have the money. We just don’t want to spend it on feeding Americans.
Poverty is Good Business
Cops investigating a crime often refer to the Latin term, cui bono, or, “who benefits?” The idea is to find out who has the most to gain from Colonel Mustard’s death in the Drawing Room and start the hunt there.
So if most Republicans, and many Democrats, want to cut food stamps, who does not want to see the cuts?
The food business loves food stamps. Wal-Mart, Target and Kroger have made huge profits of $75.2 billion off of food stamp purchases, setting a new record in 2012. And that’s not counting other purchases recipients may make with their own money.
Never mind how food stamps and other benefits are used by those same retailers to subsidize the low wages they pay their workers. Or how the same bill that would cut food stamps pays out farm subsidies to America’s billionaires, including Microsoft co-founder Paul Allen, Charles Schwab and S. Truett Cathy, founder of Chick-fil-A.
The American Beverage Association, a lobby group that includes Coca-Cola, strongly opposes restricting soda purchases by food stamp recipients. Why? Recipients spend from $1.7 to $2.1 billion annually for sugar-sweetened beverages purchased in grocery stores. Never mind that while alcohol and other unhealthy items are restricted for purchase with stamps, soda stands available.
Pepsi, candy-maker Mars and the Snack Food Association all registered to lobby the House of Representatives on food stamp restrictions.
Your takeaway: Mega-corporations are profiting off poverty, with their profits heavily subsidized by taxpayer dollars.
So who benefits? Not hungry people. Do the math. It’s all about dollars and cents.
The State Department said Monday it has no evidence that any actions taken by Hillary Clinton when she was secretary of state were influenced by donations to the Clinton Foundation or former President Bill Clinton’s speaking fees.
That may indeed be true, but it misses the real point. Simply because her actions may not have risen to provable criminal levels, the real issue is about trust. The numbers don’t lie. And this is not a partisan attack, it’s accounting. And accountability.
The Boston Globe seems to get that. It reported a huge Clinton charity failed to report its foreign-government contributions to the State Department as required.
When Hillary became Secretary of State in 2009, she agreed to have her family’s foundation submit new donations from foreign countries for State Department review. This was designed to avoid potential conflicts of interest, given her new government role. The arrangement was made by an Obama administration covering its flanks over the appearance, at a minimum, of impropriety.
Rules are for Fools
The Clinton Foundation repeatedly violated this agreement with the Obama White House.
The Washington Post reported in February the Clinton Foundation failed to disclose $500,000 from Algeria at the time the country was lobbying the State Department over human-rights issues. Bloomberg reported the Clinton Giustra Enterprise Partnership, a Clinton Foundation affiliate, failed to disclose 1,100 foreign contributions.
But the Globe’s report on the Clinton Health Access Initiative (CHAI), yet another foundation affiliate (these people have more shell groups than a Mafia crime family), may cover the most notable omissions yet. Tens of millions of dollars went undisclosed to the State Department.
“Government grants to CHAI, nearly all of them from foreign countries, doubled from $26.7 million in 2010 to $55.9 million in 2013, according to the charity’s tax forms,” The Globe reported. CHAI “makes up nearly 60 percent of the broader Clinton charitable empire” and has an annual budget of more than $100 million.
“The failures make the Clinton Health Access Initiative… a prominent symbol of the broken political promise and subsequent lack of accountability underlying the charity-related controversies that are dogging Clinton as she embarks on her campaign for president,” The Globe wrote.
About that Agreement with the White House
A CHAI spokeswoman told The Globe that her organization “didn’t think” it needed to report many of the contributions because they were simply increased payments from existing donor countries.
The memorandum of understanding the Clinton Foundation reached with the White House, however, indicates otherwise under CHAI’s section of the agreement:
Should an existing contributing country elect to increase materially its commitment, or should a new contributor country elect to support CHAI, the Foundation will share such countries and the circumstances of the anticipated contribution with the State Department designated agency ethics official for review.
More on CHAI
A spokesperson for Secretary of State John Kerry said CHAI should have disclosed the contributions.
“We would have expected that CHAI identify for the Department the foreign-country donors that elected to materially increase their donations and new country donors. The State Department believes that transparency is the critical element of that agreement,” the spokesperson told The Globe.
The Boston Globe reported CHAI also failed to disclose numerous payments from new donor countries. CHAI offered several explanations: Switzerland was an “oversight.” Rwanda’s $300,000 was considered a “fee” rather than a contribution. CHAI did not consider Flanders a “foreign government” because it is part of Belgium rather than an independent country.
The agreement the Clinton Foundation struck with the White House, however, said CHAI contributions should be considered “a foreign country” if they are from “an agency or department of a foreign country, as well as a government-owned corporation.”
A story of our times, with massive First Amendment issues embedded.
A federal judge ruled that a group (more below, who they are makes this case even more complex) may put up posters on New York’s public buses and subways saying “Killing Jews is worship that draws us close to Allah.” The poster features a young man in a checkered headscarf with the additional words “That’s His Jihad. What’s yours?”
The poster is now at the epicenter between public safety and free speech. On Tuesday, a District judge ruled New York’s Metropolitan Transportation Authority (MTA) cannot stop the controversial ad.
The MTA argued the ad could incite violence against Jews.
However, MTA officials “underestimate the tolerant quality of New Yorkers and overestimate the potential impact of these fleeting advertisements,” the judge stated in his ruling. “Moreover, there is no evidence that seeing one of these advertisements on the back of a bus would be sufficient to trigger a violent reaction. Therefore, these ads — offensive as they may be — are still entitled to First Amendment protection.”
The MTA has now fired the next shot in the struggle, banning all “political” advertising on its subways and buses. You can certainly expect that decision to be challenged by a very broad range of actors.
The Speaker Versus the Speech
The issues surrounding the “Kill Jews” poster are complicated, in that the sponsor is a pro-Israel, anti-Muslim organization. Pamela Geller, the president of the American Freedom Defense Initiative (AFDI), the group that purchased the ads and sued the MTA to run them, was overjoyed at the court’s decision to allow her to post the, to some, inflammatory ads.
The Southern Poverty Law Center considers AFDI an “anti-Muslim” hate group. For example, earlier this year AFDI organized a portrait of the Prophet Mohammed contest, despite objections from Muslims who consider images of the Prophet blasphemous.
The presumed purpose of the “Kill Jews” ads placed by a pro-Israel group is to conflate the murder of innocents of one religion by smearing all members of another religion.
But can they say that kind of thing? Isn’t it Hate Speech and isn’t that illegal?
The Limits of Free Speech
The right to free speech enshrined in the First Amendment to the Constitution isn’t there for the easy cases; it is there for the tough ones.
The Supreme Court has thus been very reluctant in modern times to issue limits on free speech; what is now commonly called “hate speech,” things like the Klu Klux Klan using the N-word, or religious fundamentalists protesting at veteran’s funerals by way of anti-gay slurs, have been ruled repeatedly to be protected acts of free speech. You get the good with the bad, no matter what you personally consider the good parts and the bad parts.
See how it works?
Some Bad History
The broad concept of free speech is somewhat recent in the Supreme Court’s mind.
One of the most shameful examples of restraint comes from the early 20th century case of U.S. v. Schenck. In that case, the Court decided Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed opposition to the draft during World War I. It was in that case that Justice Holmes made his famous statement in favor of restraint, the one about free speech not allowing someone to shout “fire” in a crowded theatre.
So hate speech is illegal, like shouting Fire! and panicking a whole theatre full of people, right?
That Was Then, This is Now
The Supreme Court then did a 180 degree turn in the 1969 case of Brandenburg v. Ohio, which basically overturned Schenck. The Court held that inflammatory speech, even speech advocating violence, is protected under the First Amendment unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
That is where today’s New York District judge’s specific wording came from. When he said that New Yorker’s would understand the broader political point of the “Kill Jews” poster and not actually be moved to murder, he was confirming the standard set in Brandenburg v. Ohio: you have to do more than just announce an intent toward violence, your statement has to be such that people will be actually willing to follow it.
Back to the New York Buses
Of course predicting what people might do in response to any bit of speech is very hard stuff. But the Supreme Court in fact granted that power to predict to the judicial system. In the “Kill Jews” case, the judge clearly decided no one would see the ads and decide, based on that, to actually commit murder.
And that brings us back to Justice Holmes, the same Supreme Court judge who gave us the “fire in the crowded theatre” lines. Holmes later recanted, and became a firm advocate of nearly unrestrained free speech. Holmes wrote (Abrams v. United States) that the marketplace of ideas offered the best solution for tamping down offensive speech:
The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
In other words, let the ads play out on the New York buses and subways. The people are smart enough to know garbage when they smell it.
It has come to this. There is a self-help guides from the ACLU on what to do if you think you are on the U.S. government’s no-fly list. Oh, and the TSA says 99 percent of the people who contact them about no-fly have been denied boarding only because their names are similar to a real bad guy. In most applications, a 99 percent failure rate is cause for alarm for an organization. In America, it is cause for alarm for us.
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.
What Do You Do?
For the most part, once denied boarding, you are on your own to get home. It is a long walk home from L.A. if you live in New York. But, in the topsy-turvy post-9/11 world, though the U.S. will not let you on an airplane (Twin Towers!) you can, for now, as a suspected terrorist, travel by ship, train, bus, rental car, horseback, donkey cart, unicycle or other means. Of course none of those conveyances have even rudimentary screening or security.
One option if you find yourself denied boarding is to 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 simply 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.
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, DHS advises arriving at the airport extra early in anticipation of extra screening and questioning.
What If You Stranded Overseas?
One popular trick the government likes to occasionally use is to wait for someone to depart the U.S., then slap him/her on the no-fly. The traveler, stuck abroad, clearly has fewer resources to challenge anything or file internet forms and wait by the post box.
A nice scheme, but since U.S. citizens have a right under the Fourteenth Amendment of the Constitution to return to U.S. territory after traveling abroad, and lawful permanent residents (“green-card holders”) have a similar right to return under the Immigration and Nationality Act, in fact such a move by DHS is essentially unconstitutional and/or illegal.
So, as one part of the government says you are a terrorist and cannot fly to America, another part of the government is constitutionally obligated to get you back to America. Denied boarding overseas due to the no-fly? Someone in the U.S. (can be a lawyer) must call the State Department and ask that they help you. The ACLU has a handy cheat-sheet with all the details. At some point you will visit the American Embassy in your country of no-fly exile, and, after an average two week delay, re-book your ticket to return to the United States. The cost of all this is on you, and you can expect a detailed welcome from the FBI and others when you touch down in the Homeland. Coming “home” may then mean your mom’s place in Cleveland, or it can mean a jail cell near the airport in Cleveland.
We’ll admit that there probably are some really bad people out there who’d we would just prefer not sitting next to us on a flight. But who ends up on the no-fly instead?
The Associated Press reported in 2012 that the federal no-fly list had “more than doubled in the past year” and had grown to about 21,000 people, including some 500 Americans. CBS’ news show, 60 Minutes, states the no-fly list actually has 44,000 names on it. A CBS reporter claims to have seen a portion of the names on no-fly in 2007, and noted Saddam Hussein was on the list, as well as 14 of the 19 September 11th hijackers, all of whom were very dead at the time. Osama bin Laden was also on the list on the off-chance he would have decided to fly to the U.S. under his real name for some reason.
Represented by the American Civil Liberties Union, a group of thirteen Americans who were barred from boarding domestic flights or planes leaving or bound for the U.S. between June 2009 and November 2012 is suing. One of the plaintiffs in that case is Army veteran Raymond Earl Knaeble, who found himself unable to fly coincidentally after converting to Islam. Four others in the no-fly lawsuit are also military veterans. One was forced to return to the U.S. from Columbia by bus, a long and dangerous trip. Another plaintiff was placed on the list only after he flew from California to the U.S. Virgin Islands. He was forced to take a five-day boat trip and a four-day train ride home.
How Can This Be Legal?
Like much of the (known) legislation passed after 9/11, it has been very hard to challenge the no-fly in courts. One significant issue is standing, the right to sue. Persons typically never know for certain they are on the no-fly list, the government will never confirm or deny someone is on the list, and so, absent proof, one may not be able to sue the government. The government has and likely will also continue to cite national security and classified information to block cases from even entering the court system.
In the lawsuit noted above, the ACLU is arguing that the no-fly list is a violation of the due process clause of the Fifth Amendment. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The meaning is that all levels of American government must operate within the law and provide fair procedures. For example, you cannot be arrested and tried without having legal counsel, being informed of the charges, having the chance to review the evidence against you and so forth. Creating a secret list without any clear means of challenging placement on that list, is, the ACLU contends, unconstitutional.
The government argues in return that national security prevents a more open system– we 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.
The ACLU’s case against the no-fly list is currently being heard in U.S. District Court, in front of a judge who at least appears to be asking serious questions of the government, and who has stated she holds not being able to fly is indeed a case of the government depriving someone of their “liberty,” as stated in the Fifth Amendment. The outcome of the case is of course uncertain, and will no doubt be appealed as far as it can go.
Until then Americans, happy travels!
The government can kill all cell service in a designated area of its choice during “emergencies,” and does not want to disclose any details about how or when they might employ this.
Implications for the First Amendment are made clear by one known local use — San Francisco’s Bay Area Rapid Transit System disabled service to quell protests in four downtown San Francisco stations over the fatal shooting of Charles Blair Hill by police.
Standing Operating Procedure 303
The Department of Homeland Security came up with the Federal-level plan — known as Standing Operating Procedure 303 — after cellular phones were used to detonate explosives targeting the London public transportation system in 2005. Unbeknownst at the time to the public, the government shut down cell service in various locations in New York City, primarily around tunnels to and from Manhattan.
SOP 303 spells out a “unified voluntary process for the orderly shut-down and restoration of wireless services during critical emergencies such as the threat of radio-activated improvised explosive devices.” Since the details of SOP 303 remain secret, no one is certain when or how it might be invoked.
The U.S. Court of Appeals for the District of Columbia Circuit in February sided with the government and ruled that the policy did not need to be disclosed under a Freedom of Information Act (FOIA) request from the Electronic Privacy Information Center (EPIC.) The court agreed with the government’s citation of a FOIA exemption that precludes disclosure if doing so “could reasonably be expected to endanger the life or physical safety of any individual.”
EPIC asked the court to revisit its ruling. On April 10, the court ordered the government to respond, a move that suggests the appellate court might rehear the case.
EPIC originally asked for the document in 2011 in the wake of the shut down of mobile phone service in the San Francisco Bay Area subway system during a protest. The government withheld the information, EPIC sued and won, but the government then appealed and prevailed.
Who Decides When to Kill the Network?
Under the direction of the so-called National Security Telecommunications Advisory Committee, SOP 303 allows for the shutting down of wireless networks “within a localized area, such as a tunnel or bridge, and within an entire metropolitan area.” That Advisory Committee is a Reagan-era, presidentially-appointed body composed of up to 30 senior executive-level representatives from communications, information technology, banking, and aerospace companies.
Since SOP 303 is not a law, it cannot be enforced. However, the telecoms have agreed to cut off cell service voluntarily whenever the Federal government requests SOP 303 be invoked.
The process of shutting down the cell service goes through the National Coordinating Center for Telecommunications (NCC), a coordination body set up by Ronald Reagan in 1984. The NCC, which includes representatives from the Central Intelligence Agency, Federal Emergency Management Agency, National Security Agency, every important cabinet department, and a few dozen big telecommunications and defense companies, takes shutdown requests from state and national Homeland Security officials, verifies whether they are “necessary,” and passes those requests on to wireless carriers in the affected areas.
First Amendment Questions
Because cutting off communications imposes a prior restraint on speech, it’s unclear whether SOP 303 is constitutional, and of course the specifics of the agreement are secret and the limits of government authority in this area have never been tested in court.
According to Eva Galperin of the Electronic Frontier Foundation, governments in places like China regularly shut down cellphone service to quell protests. “They did it in Egypt as well,” she explained, during the protests that deposed former Egyptian president Hosni Mubarak.
The exact decision-making process in the United States is classified. But you’ll know when it happens — check your phone for bars.