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Hanging Out at the Playboy Mansion While Colonel Davis Waits for Justice
Not to brag (OK, I’m bragging) but I am invited to the Playboy Mansion on May 22 to attend the Hugh Hefner First Amendment Awards. It is as good a place as any to hang out while one of this year’s award winners, Colonel Morris Davis, waits (and waits…) for justice as he struggles to protect his and our right to speak out against the government.
Morris Davis v. Thomas Jefferson?
Morris Davis is not some dour civil servant, and for most of his career, unlikely to have been a guest at the Playboy Mansion. Prior to joining the Library of Congress, he spent more than 25 years as an Air Force colonel. He was, in fact, the chief military prosecutor at Guantánamo and showed enormous courage in October 2007 when he resigned from that position and left the Air Force. Davis stated he would not use evidence obtained through torture. When a torture advocate was named his boss, Davis quit rather than face the inevitable order to reverse his position.
Morris Davis then got fired from his research job at the Library of Congress for writing an article in the Wall Street Journal about the evils of justice perverted at Guantanamo, and a similar letter to the editor of the Washington Post. (The irony of being fired for exercising free speech while employed at Thomas Jefferson’s library evidently escaped his bosses.) With the help of the ACLU, Davis demanded his job back. On January 8, 2010, the ACLU filed a lawsuit against the Library of Congress on his behalf. In March 2011 a federal court ruled against the Obama Administration’s objections that the suit could go forward (You can read more about Davis’ struggle.)
Justice Postponed is Justice Denied
Moving “forward” is however a somewhat awkward term to use in regards to this case. In the past two years, forward has meant very little in terms of actual justice done. At about the same time in 2011 that Colonel Davis notified the government that he was going to be called as a defense witness for Bradley Manning, the Department of Justice filed a motion to dismiss Davis’ lawsuit against the government, actually seeking to make him pay the government’s court costs, and hinted at potential criminal charges because he copied some unclassified files from his office computer. Of course three years had passed since these alleged 2010 criminal acts and DOJ’s 2013 threats, so perhaps the timing was coincidence, but Colonel Davis said in an interview with me that he believes it was an attempt to discredit him and thus negate any help he could offer Manning.
Despite DOJ’s clumsy efforts, the good news is that at a hearing about a month ago a federal judge denied the government’s stalling motion and the case is moving “forward” again. However, DOJ is again seeking to stall things with multiple delaying motions that require multiple responses, and the motions alone won’t be heard by a court until August. After that comes a lengthy discovery period that will likely take the case to the four year mark. Colonel Davis hopes he’ll get to trial before the five year point. He is a strong man, navigating more successfully between the empowering anger and the consuming bitterness than most people struggling against the government of the United States can manage. Still, it is hard for him to rationalize the amount of time and effort his own government is spending to limit the free speech rights of federal employees.
Hugh M. Hefner First Amendment Awards
The government’s ability to limit free speech, to stopper the First Amendment, is perhaps the most critical issue our republic can face. If you were to write the history of the last decade in Washington, it might well be a story of how, issue by issue, the government freed itself from legal and constitutional bounds when it came to torture, the assassination of U.S. citizens, the holding of prisoners without trial or access to a court of law, the illegal surveillance of American citizens, and so on. In the process, it has entrenched itself in a comfortable shadowland of ever more impenetrable secrecy, while going after any whistleblower who might shine a light in. All that stands in counter to the government’s actions is the First Amendment, exactly as the Founders designed it to be.
The Hugh M. Hefner First Amendment Awards were established in 1979 to honor individuals who make significant contributions to protect First Amendment rights for Americans. Since the inception of the awards, more than 100 individuals including high school students, lawyers, librarians, journalists and educators have been honored. I am very proud that two of last year’s winners, whistleblowers Tom Drake and Jesselyn Radack, are my friends, and that Radack helped defend my right to speak against the Department of State.
So congratulations to Colonel Davis. He earned this award and I’ll be proud to watch him receive it from Christie Hefner on May 22. He is in good company, as Daniel Ellsberg, the Vietnam War era’s version of Bradley Manning, is also being honored. By standing up against a government that is doing wrong, and seeking to bring those wrongs into daylight, both men have earned the privilege to be called patriots. All that said, it is an odd state of things. The only mainstream introspection of the government takes place on Comedy Central. Of all the possible ways I dreamed of getting into the Playboy Mansion over the years, this was not one of them. Nasty business, fighting for one’s First Amendment rights these days. Strange times make for strange bedfellows, even at the Playboy Mansion.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
Meanwhile, “Ten Things You Should Know About the State Department”
Your Department of State, right on the cusp of budget time, has released a self-pleasuring “fact sheet” of what it thinks it does with your tax money, helpfully titled “Ten Things You Should Know About the State Department.”Some of it is over-the-top performance art hilarious, like the unsupported statement that “We directly support 20 million U.S. jobs (No. 1)” and “In South Sudan, Libya and many other countries we worked through various means to foster democracy and peace (No. 3)” But in light og recent personnel moves at State, let’s look at Number 8 in full:
8. We promote the rule of law and protect human dignity. We help people in other countries find freedom and shape their own destinies. Reflecting U.S. values, we advocate for the release of prisoners of conscience, prevent political activists from suffering abuse, train police officers to combat sex trafficking and equip journalists to hold their governments accountable.
Meanwhile, over in reality, the same State Department reassigned its special envoy for closing the U.S. prison at Guantanamo Bay, in another step away from one of Obama’s first campaign promises. Ambassador Daniel Fried (hah hah, his name is really “Fried”) is starting this week as the Department’s sanctions coordinator, according to an internal notice, focusing on governments like Iran and Syria. No one is replacing Fried to persuade countries to resettle Guantanamo inmates approved for release. Instead, those responsibilities will now transfer to the Department’s legal office where the tired Washington-bound lawyers will no doubt welcome the additional workload.
The reduced diplomatic effort comes as a military tribunal holds more hearings into the case of alleged 9/11 mastermind Khalid Sheikh Mohammed and five other defendants who face almost 3,000 counts of murder. They could get the death penalty if convicted.
And as for the last line in Number 8, “equip journalists to hold their governments accountable,” it is fun to note that the military judge presiding over the trial of the five men accused of organizing the Sept. 11, 2001, terrorist attacks declined to explain a mysterious episode in which the audio and video feeds to the proceedings were severed, cutting journalists off from covering the trial. All details of CIA secret prisons and torture are considered classified and are censored from what journalists may hear.
A Justice Department lawyer on the prosecution team, said the “original classification authority” reviews the feeds. The authority referred to almost certainly is the CIA in the case of material related to secret overseas prisons. Agency personnel apparently monitor and have a previously undisclosed ability to cut the feed, for freedom.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
State Department to Have USG’s Most Restrictive Social Media Rules
Diplopundit has a copy of the (leaked) revised rules for the use of social media by State Department employees. The rules have not been formalized, so let’s hope some smidgen of change is still possible, but my own sources confirm that what you can read about here are authentic. These rules are horrible and childish, a pathetic over-reactive lashing-out over how poorly State handled the media swirl around my book We Meant Well.For example, there are some wonderful catch-all “standards” that would not pass legal review at a junior high student council but which will control America’s diplomats. Here’s one:
Employees at all levels are expected to exhibit at all times the highest standards of character, integrity, and conduct, and to maintain a high level of efficiency and productivity.
Leaving aside the yucks so obvious even I won’t crack jokes about them concerning efficiency and productivity, what definitions and details will define and explain what the hell the “highest standards” of character, integrity, and conduct are? For example, is lying about what happened in Benghazi a highest standard? What about making a sex tape on the roof of the Baghdad embassy? Shooting an unarmed man in a McDonald’s? Wasting billions on faux reconstruction projects in Iraq, Haiti and Afghanistan? I guess all that is OK just as long as you don’t Tweet about it.
The new standards also seek to codify that what can’t be disclosed is “protected information.” In addition to the legally-based actual USG-wide standard classifications of Top Secret, Secret and Confidential, the State Department created its own unique category called Sensitive But Unclassified (SBU). State then declared that everything it does on its Unclassified network is actually SBU, meaning under the new rules “disclosing” an email from Diplomat A to Diplomat B asking when lunch is will be a violation. FYI, State is also seeking desperately to invoke the SBU rule against Bradley Manning to make his alleged Wikileaks leaks seem more horrible. State also cited my own release of SBU information (in my case, a Diplomatic Security memo written to me about me) as justification for suspending my security clearance. Of course such nonsense makes no sense in that outside of the State Department possession of such documents is not a crime, and of course as unclassified documents they should be all available under the Freedom of Information Act.
State’s new Brazil-like rules stand in sharp contrast to the military’s. Of course the military also trusts its people with guns and sharp instruments, so maybe that does make sense.
The State Department will have the most restrictive social media rules of any Federal agency under these new standards, proposing, among other amazing things, that all Department employee Facebook posts and Tweets of “matters of official concern” (whatever your boss chooses to define that as) undergo a two-day review process. Such rules will either require hundreds of full-time reviewers, or, most likely, be ignored in most instances and hauled out selectively when needed to punish an individual. Such selective application begs for a lawsuit.
These changes show clearly that the State Department fears what its own employees will say about it, what truths they will reveal. Like the corrupt Communist bureaucracies of the old Eastern Europe, more and more resources will be devoted to monitoring one’s own workers, with snitches no doubt favored and promoted for “outing” social media deviants. Perhaps next Foreign Service children, no doubt more computer-savvy than their diplo-parents, will be schooled in spying on what Mommy and Daddy do online. One can only see this as positive, the bureaucracy at State consuming itself, with no one in the organization willing to trust anyone else. Whatever shreds of free speech credibility abroad are left will clearly dissipate. One can hear laughter in Beijing. 21st Century Diplomacy indeed.
Really, these people are pathetic. Very sad, very paranoid, for a once-distinguished organization that purports speak for free speech around the globe. We’ll keep all this at hand for 2016 as a further example of how Hillary Clinton really rolls. And when are we going to stop saying “1984-like” and start saying “State Department-like”?
The Washington Post is also covering this story. It quotes State Department deputy spokesman Mark Toner as saying with a straight face the changes are merely updates “to recognize the dynamic and decentralized nature of the 21st century information environment.”
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
Smell That? Smells Like… Victory
For those reading this blog from Foggy Bottom, can you smell it? Something different in the air? No, no it’s not napalm from the latest group of grateful Muslims freed from another tyrant’s grip by American truth drones, it’s me.
I’m done stinking up the place. As of midnight yesterday I officially retired from the State Department. You’re all freed from the chaos and tyranny I was accused of inflicting. From the statement “officially retired” you may safely assume that I in fact retired, which is a different word (check the dictionary) from fired, or arrested, or jailed under the Espionage Act. State failed in all those options, in fact in every judicial and other action not totally within its own control. In other words, no one but State’s own incestuous minders was willing to believe I did anything wrong. State could only lash out, limply as it turns out, with its self-controlled bullies from Diplomatic Security, taking away my security clearance because it was the only punitive thing they could actually get away with that had no outside review, no judicial relief and no appeals process.
Pride people, pride makes us what we are. People first.
Along the way, the Department’s blind-leading-the-blind stumbles did help create publicity, which in turn sold books, lots of books that were full of stuff they did not like, a perfect example of how what matters most inside the State Department is what matters inside the State Department.
The great news is that the tumor has been cut out, the boil lanced, the pus-laden throbbing glob that was me is gone. You should already be seeing the many improvements and new opportunities around the State Department.
My lawyers and I have filed Freedom of Information Act requests and a request to the Office of Management and Budget, as well as with the Senate Foreign Affairs Committee, asking what the cost of this year long, multi-Bureau effort to get rid of me might have been.
While it may be several hundred years before we get a response, we can do some quick figuring: I was paid a full year’s salary and benefits to stay home, Diplomatic Security ran full field investigations and a phony security clearance “update” charade, an investigator from another office was sent all the way to Iraq to dig for dirt on fake charges even State had to drop for lack of a tether to reality, multiple sub-grievances and appeals were prosecuted by State, audits of everything I did fishing for mud to sling, and of course they probably had to buy at least one copy of my book to use to search for the classified info that wasn’t there (full retail was $25 on the book). Factor in the electronic surveillance costs, the numerous well-written denials of my previous Freedom of Information Act requests, plus the man hours of pain and commuting costs when I was summoned in to get yelled at by my paper tiger boss early on. We’ll wait on the full FOIA response, but until State challenges the number, I’m throwing out about a quarter of a million dollars of tax payer cash spent on… on… trying to take away an American Citizen’s right to free speech.
Well, they failed.
I believe more strongly now than I ever have in the importance of freedom of speech, including, no, especially including speech which appears dangerous, offensive and wrong to many people. As a nice way of reminding the State Department of its obligation to support free speech, I proudly wore my “Free Bradley Manning” T-shirt to work on my last day. Here’s a photo.
Now, a lusty cry of “Hillary in 2016!” from everyone, and we’ll keep moving on.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
Happy 9/11 Day!
Happy 9/11 day, our eleventh anniversary.
We’re instituted full background checks, body scanners and cavity searches at my home for all guests, which keeps me pretty busy, so this will be a short post. You can’t be too careful! Because they hate our freedoms, we’ve taken them away for safekeeping.
Here’s a fun thing for today while we’re all reflecting. I guess the cool political thing to do is ask “Are you better off now?” so let’s just do that:
State of Things September 11, 2001
Iraq opposed Iran, helping establish a balance of power in the Middle East. Any danger Saddam was worth was contained by the no-fly zones and had been, successfully, since 1991.
Iraq had no WMDs.
Iran’s plans were cooled by an enemy on its western border, Iraq, and one on its eastern border, the Taliban.
Al Qaeda was active in Afghanistan.
The Taliban controlled much of Afghanistan.
The US was not at war, and 4,486 Americans had not died in Iraq and 1,935 had not died in Afghanistan. A bunch o’ brown people were still alive. Suicide was not the most common cause of death in our military.
The US had a chunky budget surplus and had not spent three trillion dollars on wars. Americans got a tax rebate we had so much cash.
The US was not well-known among nations as a torturer, a keeper of secret prisons, an assassin with drones.
America was represented abroad primarily by diplomats.
Americans at home were secure, protected from abuses by their government by the First and Fourth Amendments.
Iraq had no WMDs.
Gas was about $1.50 a gallon in the US.
State of Things September 11, 2012
Iran has become a dominant power in the Middle East, with well-established ties into Iraq and Afghanistan.
China has also made healthy economic inroads in Afghanistan, as well as Africa. They hold a good chunk of America’s debt.
Al Qaeda is active in Afghanistan. Also Yemen, Pakistan, Somalia, Sudan and many other places the franchise never held ground in before 9/11.
The Taliban control much of Afghanistan.
The US national debt is over $16 trillion dollars and growing growing growing growing…
The US has assets in the fight in Afghanistan, Pakistan, Somalia, all over Africa, Guatemala, Yemen, used to in Libya, probaly in Syria, and has suffered drone strikes on all sort of other places, including the Philippines.
The US government ctively and continuously spies on Americans, particularly through electronic means. Once aimed only abroad, the NSA now devotes a substantial portion of its mighty resources inside the US.
The US government drone assassinates American Citizen abroad without trial.
America is represented abroad primarily by soldiers.
Iraq still has no WMDs. But other new places do or soon will.
The amount of oil flowing from Iraq is about the same as it was in 2001.
Gas is about $4.00 a gallon in the US.
So, are you better off? The traditional anniversary gift for an eleventh anniversary is something made of silk or linen, so for you America, here is a linen hankie to cry into. Can’t afford a silk one.
For a more sober reflection on how far we have fallen from 9/10/01, have a look at Morris Davis’ latest article.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
Government Dumps on First Amendment
Jess Radack wrote this, with some added info in italics by me for ya’:
The Washington Post has an article on how Daniel Carter Jr. was fired for “liking” a page on Facebook. This was not a pornographic, racist, or other prohibited website – it was a Facebook page for a candidate who was challenging his boss.
This is just the tip of the iceberg of workplace free speech rights. I represent a client, State Department whsitleblower Peter Van Buren, who was not only prohibited from using any social media – on his own time, on his personal computer – but the State was actively monitoring anything he did: blog, Tweet, update his status of Facebook, etc. (here’s the letter the State Department compelled me to sign acknowledging they would be violating my First Amendment rights)
Both Carter and Van Buren’s behavior is protected free speech (the ACLU aggressively defended my First Amendment rights in front of the State Department).
Carter filed a lawsuit claiming that his First Amendment rights had been violated, which is now before the U.S. Court of Appeals for the 4th Circuit. Both Mr. Carter and Mr. Van Buren’s “speech” raise substantial constitutional questions and create the appearance of impermissible retaliation for their criticism – Carter’s so tacit that you can’t even call it “criticism,” and Van Buren’s more open – of the head of the sheriff’s department and the State Department, respectively.
The Supreme Court has made clear (Pickering v. Bd. or Educ., 1960 and its progeny) that public employees are protected by the First Amendment when they engage in speech about matters of public concern. These rights can be overcome only if the employee’s interest in the speech is outweighed by the government’s interest in the orderly operation of the public workplace and the efficient delivery of public services by public employees.
The Supreme Court has also held that public employees retain their First Amendment rights when speaking about issues directly related to their employment, as long as they are speaking as private citizens (Garcetti v. Ceballos, 2006). It is clear in both these cases that both Mr. Carter and Mr. Van Buren were “speaking” in their own voice and not on behalf of the local Police Department or the federal State Department.
If the lower court’s ruling that “liking” a page does not warrant protection because it does not involve “actual statements” is upheld, a plethora of Web-based actions – from clicking ‘like” on Facebook to re-tweeting something – won’t be protected as free speech.
The Hampton, Virginia sheriff’s actions and the State Department’s actions are unconstitutional. Carter and Van Buren used various computer technologies to communicate matters of public concern – in Carter’s case, who is to be elected Sheriff, and in Van Buren’s case, the reconstruction effort in Iraq.
As new technologies emerge daily, the law struggles to keep apace, but the First Amendment must be interpreted to protect these new modalities of communicating. As the ACLU points out:
Pressing a ‘like’ button is analogous to other forms of speech, such as putting a button on your shirt with a candidate’s name on it.
Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation’s leading whistleblower protection and advocacy organization.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
On Social Media, State Department Stands Alone
(This article was originally published on the Huffington Post, June 1, 2012)
As other parts of the Federal government begin to examine their own practices toward social media and publication review, the State Department stands alone in clinging to a 19th century model emphasizing lack of transparency and message control. That State seeks this modus in a largely unclassified world and while other agencies move toward change makes even more ripe State’s policies for a judicial challenge.
Introspection at the CIA
The CIA, for example, has begun a voluntary internal investigation into whether a process designed to screen books by former employees for classified information is wrongly and unconstitutionally being used to censor agency critics. The investigation is aimed at determining whether some redactions have been politically motivated. The target of the probe is the agency’s Publications Review Board, which is supposed to focus on whether publication of material would threaten national security interests. CIA critics said the disparities in the review process are particularly apparent in books that deal with controversial subjects, including waterboarding and other forms of “authorized” torture. (The Washington Post story on the CIA’s internal reform was of course not included in the State Department’s own internal press summary of the same day’s “Federal News.”)
Embracing Social Media in the Army
The State Department’s regulations also trail behind other government agencies, particularly the military. Military regulations concerning blogging and social media are not onerous and do not involve pre-clearance requirements. The Army encourages blogging in both official and private capacities, and has published glossy brochure-ware highlighting best practices for each. Though the Army heavily regulated military blogging briefly in 2008, it quickly reversed course. Military Law statutes, regulations, and cases available do not contain any references to pre-clearance requirements.
In fact, the Army social media guidelines are all online, in a colorful, user-friendly slideshow. They begin with the stated premise that “It is important to be as transparent as possible. As communicators, we need to be the first with the truth, whether it’s good or bad.” The emphasis in the Army guidelines is on good judgement– don’t post things online that could endanger soldiers’ lives– with not a word mentioned about the need to pre-clear (indeed, the Army emphasizes the value of social media is in its immediacy) or the requirement to say only “nice things.” Indeed, the introduction to the social media guidelines emphasizes displaying the good with the bad, with “truth” as the goal. The Army guidelines provide lots of examples and include easy-to-understand (“soldier-proof”) checklists of Do’s and Don’t's.
State Stands Alone
And then, standing alone, is the State Department.
State has its own regulations (not “guidelines”) on social media. No slick slide shows at State. The social media regs start with 15 pages of text, and begin by citing 27 Executive Orders, OMB decisions and Federal laws the user is responsible for following, including 18 U.S.C. 713 and 1017, Use of Department and Government Seals (rather than prohibiting the use of Seals and logos, as State does, the Army includes links to web-ready artwork so social media users get the images right) and whatever the Anti-Lobbying Act of 1913, is.
The secret sauce hidden in State’s hefty social media regulations is 3 FAM 4170, Official Clearance of Speaking, Writing, and Teaching. That reg is State’s requirement that all social media, even when posted as a private citizen, be pre-cleared, and that the State Department is allowed up to 30 working days to act.
That means the State Department demands of all of its thousands of employees that they seek pre-clearance for every blog post, update and Tweet, every day, 24/7. An exaggeration on my part? Sorry, no– have a look at the compliance letter I was forced to sign as a condition of employment, which specifically mentions these things even when done by an employee in his or her private capacity.
Obviously State cannot pre-clear what must add up to millions of social media utterances each week, and so it does not. In many instances when I have sought pre-clearance for a blog post on some timely matter, State simply sat on a response until, weeks later, the blog post was so irrelevant that it was not usable anymore. The law anticipated this type of government-foot-dragging-as-shadow-censorship, and in a seminal case on the free speech rights of Federal workers, stated:
But even then insistence on advance approval would raise a further question, as before-the-fact condemnation of speech raises special concerns such as undue delay-the review itself plus time needed for a speaker to secure judicial relief-and stifling of expression that in hindsight would have been viewed as harmless or not worth the enforcement effort.
Droppin’ Some Law On ‘Ya
It was actions such as this that lead the American Civil Liberties Union (ACLU) to assert that the State Department violated my First Amendment free speech rights and acted unconstitutionally. My attempts to clear items for publication were met with lengthy delays and periods of no contact. It was indeed such actions by the Department that often lead me to publish without preclearance so that the material was relevant to breaking news.
Want some law? Specifically on the issue of foot dragging on pre-clearance as a clever technique to kill a story, in Weaver the Court noted “if the prior review were extensive, of course, it might delay constitutionally protected speech to a time when its only relevance was to historians.” In Crue v. Aiken, the 7th Circuit found a pre-clearance directive without a schedule for the review of proposed communications problematic because nothing prevented the reviewing official from delaying approval of communications until they were no longer relevant. (Crue v. Aiken, 370 F.3d 668, 679 (7th Cir. 2004)).
In Davis v. New Jersey Dept. of Law & Pub. Safety, the NJ Superior Court recognized that “before-the-fact review and approval requirements restrict employee speech—and raise special concerns such as undue delay and stifling of expression that in hindsight may be viewed as harmless or not worth the enforcement effort.” (Davis v. New Jersey Dept. of Law & Pub. Safety, Div. of State Police, 742 A.2d 619, 628-29 (Ch. Div. 1999)). Davis citing the Supreme Court in Freedman v. State of Maryland, notes that the danger present when a regulation “is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor’s determination may in practice be final.” (Freedman v. State of Md., 380 U.S. 51, 58, 85 S. Ct. 734, 738, 13 L. Ed. 2d 649 (1965)).
I know, I know, too heavy Doc. It took the ACLU five dense pages to spell out in legal detail all the ways the State Department social media regulations were unconstitutional and violated my First Amendment free speech rights.
Bottom Line
So it is not as simple as some claim, broadly announcing that Federal employees give up their First Amendment rights, or that social media and the responsibilities of a classified job are incompatible. Federal employees do not give up their First Amendment rights, and there is plenty of law to substantiate that.
The bottom line is this: If the hyper-classified CIA recognizes the need for an internal review of its pre-clearance process, why doesn’t the State Department? If the military, with its obvious day-to-day operational need for secrecy and its immediate impact on soldiers’ lives, can co-exist without pre-clearance restraints on blogs, why can’t State?
Given the chance to make sane, voluntary changes to an obviously out-dated social media policy that stands outside the boundaries of other Federal agencies with a whole lot more secrets to protect, State appears ready to instead insist on having those changes dictated to it by a court. That is an expensive, and in this case, unnecessary way to change out-dated regulations.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
Slouching Towards Nuremberg with Morris Berman
With thanks to regular reader Teri (not pictured) for the suggestion, I have spent the day mesmerized by the blog Dark Ages America by author Morris Berman (pictured, left). Berman wrote three books I now have on order about the changes in America: The Twilight of American Culture, Dark Ages America: The Final Phase of Empire and Why America Failed: The Roots of Imperial Decline.The titles tell the tale, and Berman’s blog is equally dark and straightforward.
His post from May 9, Slouching Towards Nuremberg (I can’t seem to link to it directly, so go to the blog and scroll down, we all need the exercise), sums up so many things I have been thinking about, and writing about, this past year.In charting America’s decline in that article, Berman lists topics before diving deeply into each one:
– The creation of a political climate in which the police are out of control, arbitrarily free to intimidate anyone for virtually anything;
– The persecution of whistleblowers, protesters, and dissenters;
– The dramatic expansion of the surveillance of American citizens on the part of the National Security Agency (NSA);
– The corruption of the judicial system by means of show trials of Muslim activists;
– The construction of political detention centers, also known as Communication Management Units (CMU’s);
– The shredding of the Bill of Rights by means of the National Defense Authorization Act;
– Future scenarios: The “disappearing” of intellectual critics of the U.S. government?
Maybe this is one of those things where most of you already knew about Berman and his work and are now wondering what rock I’ve been living under. But if not, take a look at the article cited here and see if your eyes don’t open a little wider for the trouble.
Not convinced yet? How about another Berman quote:
When a country puts laws such as torture or indefinite detention or arbitrary assassination on the books, sooner or later it will use these legal instruments. They won’t just lie dormant, in other words. As in the case of technology, once the mechanisms are there, the temptation to employ them simply becomes too great to resist. That is what is happening today.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
Oh, Baloney. State Department Internet Freedom Fellows Emphasizes Defense of Freedoms Online
The Department of State, which apparently does not care whether anyone actually believes what they say, said this:
At the Human Rights Council (HRC), the United States has consistently placed special emphasis on the protection and promotion of the freedoms of expression, peaceful assembly and association, because we understand that these fundamental freedoms are essential to facilitating the exercise of other universal rights.
As activity in the economic, social, and the political realms gravitates from the offline world to the online world, we have an additional responsibility to ensure that human rights and fundamental freedoms are not eroded simply because they are being exercised in the digital realm. The United States is committed to the principle that the same rights that people have offline must also be protected in the online world.
Now, Welcome to My World
Imagine a world where your emails, web browsing, Facebook and Twitter are monitored, where you are threatened with prosecution at work, where government agents dig through your credit report and ask your neighbors and officemates for “dirt” (some, scared, try to supply it), and where sudden “compelled” interrogations shatter your life. Imagine being jerked out of your job of 24 years and placed on a Secret Service Watch List for publicly criticizing a government official, and then allowed back to work only in a capacity designed to humiliate you, and send a message to others to remain silent.
Welcome to my world.
Since writing a book and beginning this blog, all of the things listed above have happened to me, here, in the United States, and all done by my employer, the Department of State. The same organization that speaks out for the rights of bloggers in Syria, offers sanctuary to dissidents in China and promotes web freedom in Iran, has used all of the security tools at its disposal to silence a minor critic within its own ranks.
Me.
Mine is a simpler version of the current Administration’s war on whistleblowers. It illustrates the way that the government uses the tools of security to silence dissent and punish whistleblowers. As those tools continue to increase in power, and as the definition of troublemaker continues to expand, it is safe to say you might be next.
For me, it began simply enough, with my book We Meant Well that chronicled my experiences leading two State Department Provincial Reconstruction Teams in Iraq, supposedly helping to reconstruct that country after years of war, hearts and minds stuff. Instead, I found a vast sinkhole in the desert, filling with American money while my bosses sought propaganda pictures and feel-good stories to bump up their own chances of promotion.
What is revealing about my case is not so much that the government has renewed zero tolerance for dissent (the Obama Administration has begun prosecutions under the 1917 Espionage Act against twice as many whistleblowers as all previous administrations combined), but that the tools used to silence that dissent are all security-related. Slightly more benign in practice (for now), in theory this is little different than the Soviets executing dissidents as spies after show trials or the Chinese using their courts to legally confine thinkers they disapprove of in mental institutions. Turn the volume up and you’ve jumped from vengeance to totalitarianism. It appears that America’s goal is to become East Germany.
On Becoming East Germany
It has become common wisdom within the Department of State that when senior officials want to deep six an employee for no officially allowable reason (i.e., writing a book and blogging in my case), they turn the case over to their internal police, the Bureau of Diplomatic Security (DS). Originally created to protect diplomats overseas, DS has emerged in recent years more as a new world Stasi, with greater and greater emphasis on its internal security function over its traditional, more benevolent, role.
In my case, DS was supposedly summoned first because of an accusation (made by the Human Resources office) that a link on my blog to another web site displaying Wikileaks documents constituted a breach of security. As absurd as the accusation was (if linking was the standard of guilt the whole Internet stands accused), it was good enough internally to invoke DS doing a deep dive into my life in search of “evidence” to terminate me. Once that door was opened, DS commenced forensic analysis of my computers, the aforementioned monitoring and three separate interrogations, a total of six hours in a windowless room with a good cop and a bad cop crudely hammering away. The tools of security are many: DS claimed my interrogations were “compelled” as a condition of employment and thus took place without the Fifth Amendment protection against self incrimination. When I refused to answer their questions about charities I donate to, medicines I take or my finances, they charged me with impeding an investigation and “lack of candor.” In a perfect Catch-22, one can either incriminate oneself, or be punished for not incriminating oneself.
Your, er, my choice.
Handling personnel problems using security tools has other advantages for the government. The official Report of Investigation in my case contains significant redactions, as if parts of my own life cannot be revealed to me. Facts can be hidden from Freedom of Information Act requests and even court-ordered discovery in the name of “security,” and thus manipulated to document pre-determined outcomes. What is called an investigation morphs into an indictment, where the goal is to keep fishing until something, anything, comes up. Actions by Diplomatic Security at the State Department occur without any independent review, and are largely not appealable to the Courts. Diplomatic Security, unlike its counterparts at the Department of Defense and other agencies, even refuses to use the “substantial evidence standard” mandated by the Administrative Procedures Act.
As another commenter put it, “That freedom from oversight (the quo) is the plausible deniability factor that allows the State Department to use every dirty trick imaginable to terminate anyone, deserved or not (the quid). Diplomatic Security leadership gets the kind of absolute power that the corrupt enjoy absolutely, in exchange for using that power, when desired, to eliminate the problem employee of the day.”
Gay Bashing as Precedent
The use of security as the bully boy at the State Department is not new. Sad precedent shows that security investigations were used regularly up until about 1992 at State to out gay and lesbian employees. It began with a McCarthy-era campaign known as the “Lavender Scare” in which more than 1000 State Department employees suspected of being gay or lesbian lost their jobs even as the US also pressured United Nations and NATO allies into joining the campaign. The thought in those days was that hidden sexuality made one vulnerable to blackmail, while of course being openly gay made one unsuitable for employment, another Catch-22. Hundreds of men and women lived false lives in fear, sometimes labeling partners as domestic servants to hide relationships from Diplomatic Security. A well-known very senior official traveled with her partner on the manifest as a “valet” to keep the fiction alive. Whispered accusations of homosexuality to DS ruined many careers.
The seminal example of use of security at State to destroy bothersome employees comes from the 1950’s, again during the dark McCarthy years. John Paton Davies, in a new autobiography called China Hand, tells of his own termination from the State Department. Davies was one of a generation of brilliant scholars and diplomats known collectively as the “China Hands” during WWII. He predicted that Mao would win the Chinese Civil War and advocated better relations with Communist China to counter Soviet influence. Davies, of course, was prescient in his advice, though being right did not save him. Instead, for his views counter to popular policy that saw all Communist countries as a caliphate, Davies faced nine Diplomatic Security investigations between 1948 and 1954, all of which failed to produce any evidence of wrongdoing. Nevertheless, in 1954, under political pressure from Senator Joe McCarthy, the gutless Secretary of State John Foster Dulles asked Davies to resign. Davies refused, and Dulles terminated him, claiming he had “demonstrated a lack of judgment, discretion and reliability,” charges that curiously echo the ones against me for poor judgment, lack of candor and mishandling classified material I never once handled.
In the topsy-turvy world that now is our new reality, the Obama administration charged former CIA officer John Kiriakou under the Espionage Act after he blew the whistle on the waterboarding of al-Qaeda suspects and refused to participate in torture. His sociopathic CIA counterpart, Jose Rodriguez, meanwhile, is proudly promoting a new book in which he brags about torturing the same people and gloats over destroying the video evidence of his actions. The Espionage Act itself favored by the Obama people harkens back to dark times in American history, having been used against the government’s political opponents. Targets included labor leaders and radicals like Eugene V. Debs, Bill Haywood, Philip Randolph, Victor Berger, John Reed, Max Eastman, and Emma Goldman. Debs, a union leader and socialist candidate for the presidency, was, in fact, sentenced to ten years in jail for a speech attacking the Espionage Act itself.
The First Amendment
To understand what this all means, it is important to take a step back. Here’s the First Amendment, in full:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Those beautiful words are the sparse poetry of the American democratic experiment. The Founders purposely wrote the First Amendment to read broadly, and not like a snippet of tax code, in order to emphasize that it should encompass everything from shouted religious rantings to eloquent political criticism. The Founders would retch to see what has become of the spirit of the Enlightment that drove them, simply because America got frightened after 9/11. Our nation was founded by bigger men, to be stronger than to casually throw away hard-won rights.
The effect of all these security-as-bully-boy-personnel-tactics is to chill free speech within government. Government is different than private business. If you don’t like McDonald’s because of its policies, go to Burger King, or eat at home. You don’t get the choice in governments, and so the critical need for employees to be able to speak informs the Republic. We are the only ones who can tell you what is happening inside your government. It really is that important.
James Madison understood these dangers, and warned “The means of defense against foreign danger historically have become the instruments of tyranny at home.” As the tools of security increase in quality and quantity, and the courts continue to pay false deference to anything tagged as “security related,” the line between actions directed against enemies abroad and perceived enemies at home continues to blur. Many of the illegal things Richard Nixon did to the famous Pentagon Papers whistleblower Daniel Ellsberg are now both legal under the Patriot Act and far easier to accomplish with new technologies. There is no need, for instance, to break into anyone’s psychiatrist’s office looking for dirt, as happened to Ellsberg, when the National Security Agency can penetrate your doctor’s electronic records as easily as you can read this page. The use of those security tools expands, from true enemies of the state to bothersome employees of State.
Yes, welcome to my world indeed. Criticize any government you like, as long as it isn’t the one at home.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
WaPo: ACLU throws support behind State Department whistleblower
Today’s Washington Post featured a story on how the American Civil Liberties Union (ACLU) has continued to support my case that the Department of State has continued to violate my First Amendment rights by moving to fire me because of this blog. You can read the entire story here.
The State Department puts together an overnight, internal-use only media summary for busy diplomats to read first thing in the morning as a way of quickly knowing what happened whilst they acquired their beauty sleep. Though the summary features most every story about the Department from the Washington Post, inexplicably today’s WaPo piece about the ACLU was omitted. One day the State Department will realize that its lame efforts to control every message only end up making them look dumber and dumber all the time. That day is, however, not today.
I was very gratified to see that the nation’s premier authority on free speech, the ACLU, studied the State Department’s actions and, in five pages of legal analysis, concluded unambiguously that the Department of State acted unconstitutionally and violated my First Amendment rights.
The ACLU didn’t just say that government employees retain their free speech rights, it laid out the legal doctrine behind that statement in great detail. This helps not only me, but also every other US government employee out there who still believes his/her oath is to the Constitution, and is not some silly loyalty pledge designed to hide their agency’s dirty laundry.
The State Department may still fire me, but they now are on notice that the issues they will fire me for will not go away. Ultimately, State’s actions against the Constitution will need to be judged not by their own misguided ideas but by a court.
It is also a shame that the State Department, the part of the US government directly charged with speaking abroad about America’s democracy and freedoms, feels it necessary to deny its own employees those same freedoms. It weakens the institution, and it weakens the State Department’s own credibility overseas.
Who knows, maybe the Chinese government will step in and demand the US recognize my rights as a citizen?
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
Mrs. Clinton, you have a problem.
It was with great pleasure that I saw my friend at the Washington Post, Lisa Rein, bring more daylight on the latest anti-free speech action by the State Department, State’s censoring of a blog because it mentioned the writer’s battle with breast cancer. Lisa Rein has written about my own efforts to reform State’s unconstitutional practices, and I was pleased to bring the latest act of the Department to her attention. I am very glad she took the story.
It is now time for the Department of State to stand up and admit it: I have a problem with blogs. I need help.
The State Department has pressured numerous employees to quit blogging at the risk of their career. When I refused to cave in, they began termination proceedings.
Yet the State Department tries to use employee blogs it agrees with as bait to attract new recruits, even listing some on its own US Government website. State turns a blind eye to the fact that not all of those blogs include the proper disclaimer, and that not all of those blog adhere to the same pre-clearance regulations I am being fired for and which the ACLU has declared unconstitutional. I doubt all of those “acceptable” bloggers have been forced to sign a Compliance Letter as a condition of continued employment. Blogger Jen did not get pre-permission from State to speak to the Post yesterday, though I am being fired for not getting pre-permission from State to speak to the Post in the past.
All this double-talk because State wants the advertising bang such first-hand accounts provide to its recruitment efforts.
In Jen’s case, State was happy to pimp her blog on its own web site as long as she was writing plucky tales of life abroad. But, as soon as she mentioned her battle with breast cancer, State deep sixed her blog, disappeared it. State will break the rules for verbiage it likes, and enforce the rules right up to termination when it does not like what someone says.
Another State Department blogger puts it this way:
Simply put, the State Department has two completely opposite opinions when it comes to social media (like blogging). One side of State wants nothing more than to shut down all State blogs. Period. Blogs by employees, blogs by spouses, it doesn’t matter – all of them should be GONE.
My husband has personally seen this side of State many, many times, via many different official people, during the course of an uncountable number of official meetings over the last few years. As many of my readers know, my blog has been shut down twice…most recently, just a couple of months ago. The only reason why my blog is up now and still exists today is because my DS Special Agent husband feels most emphatically that: I am a private U.S. citizen, and my blog represents/is protected by my right to freedom of speech.
Believe me when I say that he has endured much in defense of his position.
Being on The Official Blog List actually painted an even bigger bulls eye on my back. And not just on my back, but on the backs of other State bloggers on The List. To date, to my knowledge, at least three State bloggers (and perhaps even up to five) on The List have since been shut down. And there were probably, oh, I don’t know, only about a dozen or so blogs on that List when it began. So, you know, not the best odds of bloggy survival.
So there it is. This is not an isolated incident, a disgruntled employee or two who can be disappeared to fix the problem.
Mrs. Clinton, you now have the Washington Post– twice– pointing out the hypocrisy your Department visits upon social media. You have the American Civil Liberties Union stating your policies are unconstitutional and that you violate the First Amendment rights of your own employees. You have droids in your organization who mistreat people with breast cancer because of blogs. This story is spreading now via breast cancer awareness sites. You have a lot of employees who think it is time for a more rational policy, one that is applied equally to all.
Mrs. Clinton, you have a problem. Admit it, and seek a solution. It won’t go away by itself. You have to do something about it.
(Inside baseball extra bonus: The State Department publishes daily an internal-only summary of Washington Post articles. Curiously, the WaPo article on Jen’s blog was omitted. One can guess why such self-censorship seems to make sense to the ever-skittish State Department)(Extra, extra bonus: In a statement to the Washington Post, State Department spokesman Mark C. Toner said the blog “has been restored” on the State Department’s recruitment page. “It had been taken down as part of a periodic effort by a contractor to review and freshen the blog links on the site.” Like everyone believes that. OMG, does he kiss his mother with that mouth?)
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
ACLU: State Department Violates Van Buren’s Constitutional Rights
(This article also appeared on the Huffington Post, May 17, 2012)
The American Civil Liberties Union (ACLU), in a letter to the Department of State, said today that the Department’s actions against my book and this blog are unconstitutional, that State’s actions “constitute a violation of Van Buren’s constitutional rights.”
Straight up, no qualifiers.
The ACLU reminds the State Department that the Courts have said that “Speech concerning public affairs is more than self-expression, it is the essence of self-government” and citing the numerous legal challenges the State Department has willfully ignored that grant government employees the same First Amendment rights all Americans enjoy.
Which is what we’ve been saying all along, here, in the New York Times, on NPR, CNN and elsewhere.
After reviewing the State Department’s policies and regulations, the ACLU states that “The State Department’s pre-publication review process, as it applies to blogs and articles raises serious Constitutional questions,” then goes on to detail those questions. The ACLU notes that State’s actions toward me are but one example of its unconstitutional actions and apply to other employees as well. They conclude that “it is highly unlikely that the State Department could sustain its burden of demonstrating that its policy is constitutional… There is no justification for such expansive prior restraint on State Department employees’ speech.”
Now them’s fightin’ words, folks.
Read the entire letter on the ACLU’s website. It is powerful stuff.
What It Means
The ACLU’s announcement that the Department of State has violated the Constitutional rights, the First Amendment rights, of one of its own employees comes to the day, 225 years later, that the Constitutional Convention opened in Philadelphia and the founders began writing an extraordinary document. The First Amendment was added later, but the spirit of free speech underlies every clause and sentence of the original document. It is embedded in the very parchment.
The Founders would retch to see what has become of the spirit of the Enlightment that drove them, simply because America got frightened after 9/11. Those beautiful words of the First Amendment, almost haiku-like, are the sparse poetry of the American democratic experiment. The Founders purposely wrote the First Amendment to read broadly, and not like a snippet of tax code, in order to emphasize that it should encompass everything from shouted religious rantings to eloquent political criticism. Madison and Jefferson were strong enough to give away the power of a government they would run, and place it in the hands of the people that government would serve. There’s courage most of us can never fully understand.
Now, very sadly, our first Cabinet agency, the Department of State, the part of the US government that speaks most directly to people abroad about freedom and democracy, is run by much smaller men and women. They are afraid of their own employees and afraid of what you– The People– will know the way they go about their wretched business. Hillary Clinton, herself a candidate to take over the seat once held by giants like Jefferson, Adams and Madison, has turned her internal security against a blog, and ordered her frightened followers to get rid of one employee because of a book. Her acts now have a label that will follow her and her Department long past my departure: Unconstitutional.
Every fluffy speech she makes to Syrian bloggers, or Chinese dissenters, will carry an asterisk– but Madame Secretary, as you criticize oppressive regimes for shutting down free speech, didn’t you order your own followers to silence a critic? Didn’t your Department act unconstitutionally? Are your actions somehow different than Bejing’s?
Did not you violate, willfully, clearly and repeatedly Madame Secretary the First Amendment rights of an American Citizen? How will you answer them Madame Secretary? Will you lie? Will you defame the ACLU? Will you apply your own legal skills to the analysis of your wrongs? Mumble about a disgruntled employee? Or will you remain silent?
Of course the State Department has not responded to all this. They have not answered me, they have not answered your letters and emails, they have not answered Members of Congress and they have not answered the ACLU. Why not? There is the ACLU letter, five dense pages of legal justification that leads to the core statement:
State’s actions constitute a violation of Van Buren’s constitutional rights.. That is the issue. Now, finally, Madame Secretary, how will you answer?
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
Loyalty Day: This is Just Plain Creepy
Did you know that Obama and whatever passes for a Congress in these United States took a few moments out of celebrating the fact that bin Laden is still dead to re-declare May 1 “Loyalty Day”?
Here’s the official statement:
NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim May 1, 2012, as Loyalty Day. This Loyalty Day, I call upon all the people of the United States to join in support of this national observance, whether by displaying the flag of the United States or pledging allegiance to the Republic for which it stands.
That is just plain creepy. It is an actual law, 36 USC § 115, which is even creepier.
The history of this holiday adds to the creep factor like a pedophile at a cheerleaders camp. From the Veteran’s of Foreign Wars:
Loyalty Day originally began as “Americanization Day” in 1921 as a counter to the Communists’ May 1 celebration of the Russian Revolution. On May 1, 1930, 10,000 VFW members staged a rally at New York’s Union Square to promote patriotism. Through a resolution adopted in 1949, May 1 evolved into Loyalty Day. Observances began in 1950 on April 28 and climaxed May 1 when more than five million people across the nation held rallies. In New York City, more than 100,000 people rallied for America. In 1958 Congress enacted Public Law 529 proclaiming Loyalty Day a permanent fixture on the nation’s calendar.
So, as our nation rushes headlong into totalitarianism, it is good to know that Loyalty Day exists to protect us all from those filthy disloyal Americans who speak out, blow the whistle, stand up against torture and demand their First Amendment rights.
We loyal Americans will stand quietly to the side, thank you. Now God bless.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
Jeepers, If Only I was Vietnamese
The State Department just can’t do enough for bloggers’ freedom overseas.
Here is State social media superhero Alec Ross burning up the Twitter, for freedom:
The news is less positive for bloggers inside the State Department. Jesslyn Radack of the Government Accountability Project wrote on Salon:
(The State Department’s) actions are a transparent attempt to retaliate against Mr. Van Buren for his book—by trying to impose bureaucratic and constitutionally-questionable prior restraints on his blogs, evidenced by the facts that 1) Mr. Van Buren is being subject to disparate treatment (hundreds of State Department blogs flow out onto the Internet uncleared); 2) the State Department links to uncleared blogs it likes; 3) none of Mr. Van Buren’s writing or speaking has contained classified orpersonally identifiable information; 4) all his written works (including his book) contain the State Department disclaimer that they do not represent the views of the government; and 5) he has never misrepresented himself as an official spokesman for the State Department (instead, he speaks in the first person and uses bland designators such as “Author”).
Tại sao là Alec Ross một kẻ ngốc như vậy?
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
Salon: The Man the State Department Wants Silenced
(This story originally appeared on Salon. It was written by Jesselyn Radack, filling in for Glenn Greenwald)
Today, I’m not writing about the Espionage Act being used to chill journalists and whistleblowers, but something equally as troubling: the assault on whistleblowers’ First Amendment rights, illustrated by the creepy case of Peter Van Buren.Van Buren is a Foreign Service Officer with the State Department who wrote a book critical of U.S. reconstruction projects in Iraq, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. He also maintains a personal blog at www.wemeantwell.com. A 23-year veteran of the State Department, Mr. Van Buren began to experience a series of adverse personnel actions a month before the publication of his book, which are ongoing today. These actions include suspension of his security clearance, confiscation of his Diplomatic Passport, being placed on administrative leave, being banned from the State Department building, losing access to his State Department computer, and being reassigned to a makeshift telework position better suited for a high schooler.
The State Department cleared Mr. Van Buren’s book by default because State exceeded its own 30-day deadline by nearly a year. Now the State Department is retaliating against him viciously for his book by taking adverse personnel actions — ostensibly based on not seeking pre-publication review for his blogs and live media appearances, done on his personal time — which are being used as a pretext to punish him for his book.
Even more disturbingly, the State Department admits that it is actively monitoring Mr. Van Buren’s blogs, Tweets and Facebook updates that he posts during his private time on his personal home computer.
Read that sentence again to absorb its full impact.
All government employees should be alarmed by this. Peter Van Buren’s book dovetailed with WikiLeaks’ bursting onto the world scene, and the government’s assault on whistleblowers with the full force of the entire Executive branch.
The WikiLeaks Edicts Transmogrify into Censorship
This slippery slope, which has now turned into a sheet of ice, began with the State Department announcement on November 26, 2010, that Department officials are authorized to view WikiLeaks documents for “legitimate work reasons . . . using either the Department’s unclassified computer network (OpenNet) and associated peripheral devices or home computers.” No problem there.
But less than three weeks later, State almost completely reversed itself, instructing the Directors of the Bureau of Consular Affairs/Passport Services (CA/PPT)—whose self-described mission is to “contribute significantly to the USG goal of promoting international exchange and understanding . . . [and] to help American citizens engage the world”—that “PPT employees shall not access any classified documents, including ‘Wikileaks documents’, during business hours or on their personal time.” (Scare quotes in original.)
A year later, Mr. Van Buren received his very own, personalized Orwellian directive from the State Department: “[Y]ou must comply fully with applicable policies and regulations regarding official clearance of public speeches, writings and teaching materials, including blogs, Tweets and other communications via social media, on matters of official concern, whether prepared in an official or private capacity.”
As a former government employee who was subject to horrible surveillance and monitoring for blowing the whistle (described in my new book for which Glenn Greenwald wrote the Foreword, I find it outrageous that a public servant is being told that his personal blogs, Tweets, and Facebook updates done on his own time in his personal capacity must go through pre-publication review. Moreover, in Mr. Van Buren’s case, this special pre-clearance requirement is being applied only to him and to things not capable of pre-publication review, such as live radio broadcasts.
These actions are a transparent attempt to retaliate against Mr. Van Buren for his book—by trying to impose bureaucratic and constitutionally-questionable prior restraints on his blogs and media interviews (even though the latter have been live), evidenced by the facts that 1) Mr. Van Buren is being subject to disparate treatment (hundreds of State Department blogs flow out onto the Internet uncleared); 2) the State Department links to uncleared blogs it likes; 3) none of Mr. Van Buren’s writing or speaking has contained classified orpersonally identifiable information; 4) all his written works (including his book) contain the State Department disclaimer that they do not represent the views of the government; and 5) he has never misrepresented himself as an official spokesman for the State Department (instead, he speaks in the first person and uses bland designators such as “Author”). Mr. Van Buren’s style of writing and speaking is clearly identifiable as in his own “voice” and is dramatically dissimilar to the official, wooden style used by the State Department in its own messaging. Moreover, Mr. Van Buren does not use other official symbols that might potentially confuse an audience. Finalloy, the State Department never argued, until after Mr. Van Buren went to the U.S. Office of Special Counsel, which adjudicates whistleblower complaints, that Mr. Van Buren’s book or writings have disrupted normal State Department operations or affected the agency’s operational efficiency, the legal standard for when an employee has crossed the First Amendment line.
Death by a Thousand Paper Cuts: The Slow Immolation of a Whistleblower
On September 7, 2010, Mr. Van Buren submitted his book manuscript for pre-publication review. It disclosed numerous examples of rampant reconstruction fraud in Iraq. Mr. Van Buren submitted his manuscript to the State Department’s Bureau of Public Affairs (PA) in accordance with 3 Foreign Affairs Manual (“FAM”) 4170, which governs official clearance of speaking, writing, and teaching. It specifically requires pre-clearance for any speech or writing on “matters of official concern.” The Supreme Court held that an earlier version of the State Department’s pre-publication review scheme was valid in a case called Weaver. However, the current regulation is outdated, vague and overbroad, defining “matters of official concern” as matters that “relate to any policy, program, or operation of the employee’s agency or to current U.S. foreign policies, or reasonably may be expected to affect the foreign relations of the United States.” Matters that relate to U.S. foreign policies can be just about anything. Also, Weaver was decided years prior to the advent of social media, and such a requirement on new media is more constitutionally-questionable than when applied to traditional publications.
The State Department defaulted on pre-publication review according to its own 30-day deadline. A month before the book was published, the State Department commenced a series of retaliatory actions that continue today.
A couple weeks before Mr. Van Buren’s book was published, the State Department’s Diplomatic Security (DS) interviewed Mr. Van Buren on a “voluntary basis.” DS asked Mr. Van Buren about his forthcoming book and a blog he posted on August 25, 2011. (Mr. Van Buren had been blogging without incident since April 2011 and the questions regarding his blog post were clearly a pretext to interrogate him about his book and intimidate him from promoting it.)
The week before his book’s publication, DS interrogated Mr. Van Buren on a “compelled basis” regarding his book and the August 25, 2011 blog post. As to the book, DS grilled him about the details of the publishing contract, including how much of an advance he received and to whom, if anyone, he donated the proceeds. (If you listen closely, you can hear government strains of “material support for terrorism” lurking in the background.) As to the blog, DS wanted to know who had helped him with his blog and told him that every blog, Facebook update, and Tweet by State Department employees had to be pre-cleared by the Department prior to posting. DS told Mr. Van Buren that refusal to answer their questions could lead to his firing. They also warned him against writing about the interrogation, saying he could be charged with interfering with a government investigation if he did so.
After his book had been shipped to bookstores, the Bureau of Public Affairs wrote to his publisher stating that “its circulation and publicizing have been done without authorization” and that “[t]he Department has recently concluded that two pages of the book manuscript we have seen contain unauthorized disclosures of classified information.” Although the State Department tacitly admitted (with the word “recently”) that its designated period for pre-publication review had expired, this fax constituted a direct threat of discipline because unauthorized disclosure of classified information is both a regulatory infraction and a criminal felony that can carry up to 10 years in prison under . . . wait for it . . . part of the Espionage Act, the government’s new favorite tool to use against whistleblowers.
When criminal threats failed, the State Department confiscated Mr. Van Buren’s Diplomatic Passport and suspended the Top Secret security clearance he had held continually since 1988 (by suspending, rather than revoking his security clearance, the State Department made it impossible to challenge.) He was issued a workday-only limited-access badge so that he could continue his unclassified work.
It was not long, however, until Mr. Van Buren was placed on paid administrative leave, on which he remained for nearly two months with no job duties or assignment. His access card was confiscated by Human Resources (HR), and he was banned from entering any State Department facility or accessing any State Department computer. (No reason was given for banning Mr. Van Buren from State Department facilities, and no regulation was cited justifying HR in doing so.) The State Department ended the job assignment that Mr. Van Buren had served in for over a year (with the Board of Examiners for the Foreign Service) because “You have been counseled repeatedly regarding your 3 FAM 4170 obligation to submit writings and media appearances for review when they pertain to matters of official concern.” This is disparate treatment because numerous Foreign Service Officers maintain blogs and post Facebook updates about matters of official concern without pre-clearance. Moreover, it is impossible to pre-clear the content of live media appearances before they occur.
At the end of 2011, the State Department informed Mr. Van Buren that he would be “teleworking,” and forced him to sign an unprecedented “Compliance Letter” as a condition of employment, referenced above: “[Y]ou must comply fully with applicable policies and regulations regarding official clearance of public speeches, writings and teaching materials,including blogs, Tweets and other communications via social media, on matters of official concern, whether prepared in an official or private capacity.”
Long story short, Mr. Van Buren continued to exercise his First Amendment rights to blog, Tweet, speak, and use Facebook. And he continued to be jacked up over things that would be laughable if they were not so serious, like blogs that were sarcastic or pure parody.
The end is so cliché: the State Department has now proposed removing (bureaucratese for “firing”) Mr. Van Buren, a mere six months before his already-announced retirement date.
We can only hope that the government’s attempts at prior restraint and blatant censorship don’t become cliché.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
OK State Department, Now You Gotta Mess with Michael Moore
Ah, the power of social media. My thanks to Michael Moore, who Tweeted the article from Salon describing my First Amendment fight against the State Department to his over 1,000,000 followers, and reposted it on his Facebook page.
A very large number of those people then went on to read the full story of the denial of my First Amendment rights by the Department, and jumped over to this blog to read about my latest ham-fisted interrogation by the goons at Diplomatic Security.
You know Alec Ross, there just might something to this social media thing you always talk about.
#SmartPower uber alles!
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
What’s Wrong with This Picture?
In America, we are proud of our long and distinctive record of championing freedom of speech… we have worked to share our best practices.
–Secretary of State Hillary Clinton
We hope that others will join us in advancing a basic freedom for the Iranian people: the freedom to connect with one another and with their fellow human beings.
–President Barack Obama
On March 9, 2012, the Department of State issued a 16 page list of offenses I allegedly committed, for which they seek to fire me. Chief among those offenses is writing this blog, on my own time and on my own computer, an exercise of the very same rights to communicate and free speech Obama and Hillary demand for others:
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
State Department Moves to Fire Me
The following story appeared in the Washington Post:
Peter Van Buren, a foreign service officer who wrote an unflattering book about his year leading two reconstruction teams in Iraq, was stripped of his security clearance, banned from State Department headquarters for a time and transferred to a telework job that consists of copying Internet addresses into a file.
Now the State Department is moving to fire him based on eight charges, ranging from linking on his blog to documents on the whistleblowing site WikiLeaks to disclosing classified information.
In 24 years as a diplomat, Van Buren was posted around the world and speaks four languages. He called the termination notice he received Friday the coup de grace in a series of blows he received since his book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People was published last fall.
With his book, based on a year he spent in the Iraqi desert in 2009-2010, and an unauthorized blog he started in 2011 that frequently skewers American foreign policy, Van Buren has tested the First Amendment almost daily.
He and his attorneys maintain that his right to free speech has been trampled, and they say he is a victim of retaliation for whistleblowing— not only because his account of the reconstruction effort alleges unqualified staff, corruption and billions of dollars in wasted programs.
A State Department spokesman said the diplomat’s claims of retaliation are “without merit.”
“There are protections within the government for freedom of expression and for whistleblowers,” spokesman Mark C. Toner said. “The State Department has followed process and acted in accordance with the law.”
Van Buren’s termination letter came within days of a decision by the Office of Special Counsel, an independent agency that investigates government wrongdoing and complaints of retaliation by those who report it, to look into his case.
“It’s hard for me to objectively look at this as anything other than revenge and vindictiveness,” Van Buren said from his house in Falls Church.
Jesselyn Radack, National Security and Human Rights director for the Government Accountability Project, which represents Van Buren, said: “It’s awfully curious timing, given the Office of Special Counsel complaint.”
He’s one of few federal employees —and maybe the only one at the State Department—who wrote a book about life on the job while still on the job.
Van Buren can appeal his termination to a five-member grievance board at the agency. “It’s the beginning of a process,” Toner said. “He’ll have ample opportunity to defend himself.”
He was charged with eight violations of State Department policy. They include linking in his blog to documents on WikiLeaks; failing to clear each blog posting with his bosses; displaying a “lack of candor” during interviews with diplomatic security officers; leaking allegedly sensitive and classified information in his book; and using “bad judgement’ by criticizing Secretary of State Hillary Clinton and then-presidential candidate Michelle Bachmann on his blog.
Van Buren disputes some of the charges, and says others were within his First Amendment rights.
Van Buren submitted his book manuscript to State Department officials for review in the fall of 2010. He heard nothing after 30 days, when the rules require reviews to be completed. When he heard nothing, he said, he assumed the book had been approved.
Shortly before it was due out last fall, the State Department wrote to the publisher and objected to three brief passages in the book officials claimed contained classified information. Van Buren says the information is widely known— such as the Central Intelligence Agency’s financial support for Iraqi intelligence agencies.
In an Oct. 21 blog post headlined “Hillary Clinton Disgraces America,” Van Buren called a “disgrace” a comment the Secretary of State made to a journalist after the death of Moammar Gaddafi. “We came, we saw, he died,” Clinton tells a CBS News reporter in a video clip he posted on his blog, showing her laughing.
Van Buren made references to Clinton’s private parts that he later removed from the posting. According to a report by the State Department, the agency put him on a watch list for the Secret Service and identified him to Clinton’s own security details as a potential threat.
“I’m a chubby 52-year-old,” Van Buren said. “I’ve never threatened anybody in my life. It’s a cheap shot.”
He called Bachmann a “Republican crazy person” in a blog post three days after the Clinton posting for saying Iraqis should reimburse the American government for its costs to “liberate” them.
The charges against him are based on a 25-page investigation of Van Buren that the State Department concluded last December. He said he was not aware of the probe until the report was provided to him with his termination notice.
Last fall, he announced plans to retire next year. He said he plans to challenge his termination.
(Note: For those interested and/or concerned, I am still technically employed by the State Department, for now, as my lawyers and I fight back against what is crude retaliation and blatant disregard for the First Amendment. For the record, the State Department’s statement that they “followed process and acted in accordance with the law” ranks with the more hilarious things ever said within Foggy Bottom. Also, unicorns fly out of my ears.
For the record, as the Washington Post claims, I must admit that I am a bit chubby but I am trying to lose some weight, maybe via stress.)
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
Interview: My Oath is to the Constitution, not Hillary
WUSA, channel 9 in Washington DC, ran an interview with me, detailing the reasons why I wrote about Iraq at the risk of my career, and shedding light on the State Department’s dirty tricks in retaliation. Twitter version: those people really can’t take a joke. Nor can they tolerate dissent.
Here’s the interview:
(If the video does not appear above, please follow this link to watch it)
WUSA also ran this excerpt from our interview. Note that it is only since I filed a complaint with the Office of the Special Counsel detailing the State Department’s retaliation toward me that State has started to comment on the record. Before the complaint, Foggy Bottom was all about “no comment.” Now, with the complaint closing in on their misdeeds, they suddenly are on the record, albeit denying any wrong doing:
FALLS CHURCH, Va. (WUSA) – Veteran Foreign Service Officer Peter Van Buren sits in his suburban Virginia home, assigned by his superiors at the State Department to online busy work while he fights the Department decision to fire him in a case that he says violates whistleblower protections that are guaranteed to federal workers who point out government wrong-doing.
“Nine months ago, I wrote a book about my experiences in Iraq called We Meant Well. It exposed tremendous waste and mismanagement in the reconstruction of Iraq. The State Department is very unhappy about that, embarrassed about that, and has taken retaliatory steps against me, trying to kick me out, throw me out of the State Department and make it all go away,” Van Buren told 9News Now.
“I came to Iraq and realized that the discrepancy between what we say we were doing and what we were doing at the risk of peoples lives, including my own, and billions of taxpayer dollars, was too wide to stand silent. The waste of lives, the waste of money was so extreme and the lies that were being told in Washington were so egregious that I decided to risk my career and speak out,” he said.
The government believes Van Buren improperly disclosed classified information.
“As far as permission is concerned, The State Department, in fact, approved my book in October of 2010 for publication, I suspect accidently or negligently, but they approved it nonetheless,” he said.
The tension between Van Buren and his employer grew worse when he started to promote the book.
“I started the blog at the publisher’s suggestion as a way to promote the book. I tried to find out first what a blog was, and then started writing it. However, as I started working on the blog, a world that was unavailable to me before opened up to me. Other people who had risked their careers as whistleblowers began contacting me, information became available to me, and I realized there was an audience that was willing to listen to some of the remarks that I had about what had happened in Iraq, and the blog grew to the popularity that it has now, and as it grew, the State Department got angrier and angrier at me, ” he said.
On his blog, Van Buren is harshly critical of Secretary of State Hillary Clinton, his boss.
“Absolutely. I criticized the Secretary of State. I criticized the president and I’ve criticized other members of the State Department and the Administration, and I did that because when I signed up 24 years ago, my oath was to the constitution, not to Hillary Clinton or Barack Obama or anyone else. I’ve served under Republicans and I’ve served under Democrats, but my oath has always been to the constitution, and therefore it shouldn’t matter,” Van Buren said.
In some postings, Van Buren has been insulting to Republicans liike former Republican presidential candidate Michelle Bachman, calling her insane. In other postings, Van Buren
is so vile that his comments can not be repeated here. Those include references to Mrs. Clinton’s anatomy and sexual practices.“Absolutely, and those statements are protected by the first Amendment. The First Amendment doesn’t have any cutouts for offensive or words you don’t like.
“My statements were made to show my disgust at the Secretary of State’s chortling over the death of Muammar Gaddafi. He was a lousy human being, no question about that, but to laugh about his death was undiplomatic,” Van Buren said.
And why was it necessary to be so profane?
“It’s necessary sometimes to cause people to pay attention. There’s so much noise out there, so much flim flam, so much huff puff, that occasionally it’s necessary to say ‘Wait a minute, you need to look at this’.
“In addition, I’ve tried by hard to separate my statements from any official statements by the State Department or by the US Government, and I suspect my use of occasional profanity, sometimes vile terms, and oftentimes sarcasm, does set it aside from anything that is official,” he said.
In private business, he concedes, those are firing offenses.
“Fair enough, but I don’t work in private business, I work for the government. I work for you, the people, and I have an obligation to tell you what goes on inside your government. If I didn’t tell you what happened in Iraq who would, who could?
“People inside the government are different. You don’t have a choice. You can go to McDonalds or you can go to Burger King. If you don’t like one company, you can shop at another, but if we don’t tell you, the people who work inside the government what’s going on, then you, the people don’t know,” he said.
“The thing that disturbs me most is the gap between what the State Department says publicly and what they’re doing to me privately.
“The Secretary of State has stood up for the rights of bloggers in Syria and Iran and China and Viet Nam while at the same time saying I, as an American citizen, don’t have my First Amendment rights because I work in her building,” he said.
“Due to privacy considerations, we cannot comment on Mr. Van Buren’s specific case, or that of any other employee, except to say that the claims of retaliation in this case are without merit. With respect to his filing a special complaint with the Office of Special Counsel, there are protections within the government for freedom of expression and for whistleblowers.
“Though we cannot speak to this case specifically, I can tell you that the State Department has followed process and acted in accordance with the law. All employees have the right to present their positions before a final decision is made by the independent Foreign Service Grievance Board, ” said Mark Toner, a Deputy Spokesman at the State Department.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
What You Can Do to Help
If you have seen the Washington Post article explaining how the State Department is moving to fire me for writing this blog, and for criticizing the Secretary of State (and, oddly, Michelle Bachmann), before you do anything else, remember that Hillary Clinton supports the rights of people online to speak back to their governments. In fact, she said this:
No individual should be prosecuted for exercising the right to freedom of opinion and expression. Vietnam’s prosecution of individuals for expressing their views contradicts the government’s commitment to the Universal Declaration of Human Rights.
OK, that was bullshit, because quite obviously the State Department is prosecuting me for exercising the right to freedom of opinion and expression. No, not really: they say they’d love for me to write stuff they don’t agree with, all I need is to ask their permission first. Which… they… will… not…provide. They ignore nice blogs from inside State, however. It is the same thing in the end for me: prior restraint, shut up, don’t criticize the government and especially don’t criticize the woman who runs the same agency that says bloggers should be free.
Except in her agency, the State Department. Yeah, it’s complicated.
Many have written in to ask how you can help:
– Send an email to Hillary at DGDirect@state.gov and voice your opinion.
– Send an email, or better yet, call your Congressperson (except Michelle Bachmann). Contact info is here. Ask them to contact the State Department Congressional Liaison and request a fair hearing for me. If they wish to call, the House Liaison office is at 202-226-4642 and the Senate Liaison Office is at 202-228-1602/1603.
– If you know someone in the media who’d be interested in this story, have them contact me at info (@) wemeantwell.com
– If you’d like to give money, I am being defended by the Government Accountability Project (GAP). Donate to them, as they are helping me, and many other whistleblowers. You can donate anonymously online. NONE of the money goes to me, I don’t want it, but people keep asking about donating.
– Hillary Clinton does support bloggers who talk back to the Syrian, Chinese, Vietnamese and Iranian governments, just not her own government. If you know a way I can pretend to be a blogger from one of those places, let me know and my troubles will be solved. I prefer not having to move to Syria if I can help it.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
NPR “All Things Considered:” The Ghosts of the State Department
While the State Department continues to prohibit me from working at my capacity because they do not like what I have written, the rest of the world looks on wondering how such an institution can be so petty, so hypocritical, so false in its calls for internet freedom.
NPR “All Things Considered” interviewed me about the situation:
Without his security clearance, Van Buren will likely be forced into retirement by the end of the year. But he says the trouble he’s been through was worth it.
“The story that people were hearing back home was not the story of what we were doing there on the ground,” he says.
Van Buren says he realized that this was a story that needed to be told, particularly as he watched the program in Iraq being folded up, packed up and shipped off to Afghanistan, where in fact the same process is going on right now.
“When I go home and turn on the news and listen to the Secretary of State claiming that the rights of bloggers in China need to be respected, that journalists in Syria have a right to speak back to their government … and at the same time, the same Secretary of State’s organization is seeking to oust me, to destroy me, to push me out of it,” he says, “I realize that that level of hypocrisy needs to be answered.”
Find out more about the hypocrisy of your government by listening to the full interview, now online.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
State Department Responds
After months of cheap shots, bully boy retaliation, McCarthy-tactics and a damn cold shoulder, the Department of State finally responded to my book and blog. It was a wimpy, written response from the weekend spokesperson pulled away from delivering the weather and sports news to my interview on NPR, but a response nonetheless.
Let’s reprint the State Department’s response in its entirety and break it down:
The State Department values the opinions of its employees and encourages expression of differing viewpoints and is committed to fairness in the workplace. There are many examples of employees publishing articles and books in their private capacity that do not reflect Department views.
Yeah, right. I call bullshit. It would be cool if they would cite one published book besides mine critical of the State Department written by an active duty, employed Foreign Service Officer. I say they can’t because there isn’t one. And since they said “many” and “books,” let’s have more than one example please. Put up or shut up State.
At the same time, the Department of State has an obligation to ensure that official information is released in an authorized and appropriate manner, that classified and other protected material is not improperly disclosed, and that the views an employee expresses in his or her private capacity are not attributed to the U.S. government.
Actually, I agree with this.
Can State point to a single instance where I have released official information not already available elsewhere, absent perhaps my book, which was approved (perhaps by accident) by the State Department? Even if that is true, about when was State planning on releasing anything about the failure of the PRT program in Iraq? The only thing I have seen is a crude propaganda video about how wonderful the PRT program was.
Can State point to any classified information I have disclosed? Way back in October, the State Department’s Principal Deputy Assistant Secretary of State for Pubic Affairs Dana Smith claimed I revealed classified CIA info in my book. She sent a public unclassified fax to my New York publisher listing the alledged classified info (Doh!). That was that; we never heard back from Smith, the FBI, the Justice Department or the CIA on that made-up bunch of garbage howler.
And a link to Wikileaks counts as disclosing classified info, as State has claimed, even though the linked document is still on the web and has been quoted in several newspapers before me, and even though when I asked if I should take the link down State said not to?
Lastly, is there anyone anywhere who thinks this blog, with its daily flow of sarcasm, offensive criticism, swear words, evil clown photos, Simpsons references and sad attempts at humor might be confused with an official US Government statement? Even if the owned-by-the-People State Department seal appears? And lastly, for the deeply confused, the State Department recommended disclaimer appears below each of these blog posts. Duh.
The point is this: I agree with the State Department on these restrictions. I agree so much that I have not violated them.
Foreign Service Officers and other employees are well aware that they are expected to meet these obligations.
I have met all of my obligations State. You cleared my book. I never revealed classified info, personnel information, or pretended to be making official statements. Face it– you just do not like what I have written and you have retaliated because of that. You don’t like free speech that criticizes you. You don’t like when someone makes fun of the Secretary. You don’t like when someone blows the whistle on your massive money pit in Baghdad. You don’t like when your own employees exercise the same rights you demand for bloggers in China, because this time it is you, not the evil Reds, who are being called out.
I guess when you throw pies at clowns you can expect to get some whipped cream on your clothes.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
The Hypocrisy of Free Speech
At the White House ABC’s Jake Tapper called out spokesperson James Carney on how the Obama Administration could square lauding free speech and internet freedom abroad while engaging in a record-setting campaign to silence whistleblowers at home. Carney (what a name, you can’t make this stuff up) ignored the question of why exposing government wrongdoing is desired when the target is Syria, China or Iran, but despicable when the target is the United States.
Free Speech Hypocrisy at the White House
Carney said “I’m not making the assumption” that the Espionage Act prosecutions suppress whistleblowers, yet the Justice Department is using the prosecutions for exactly that purpose. In the now-failed case against National Security Agency (NSA) whistleblower Thomas Drake, prosecutor William Welch II demanded a harsh sentence for Drake specifically to “send a message” to other employees. Of the six Espionage Act prosecutions under the Obama Administration, all involve journalists working with consciencious government employees trying to bring illegal, wasteful or immoral acts into the daylight. The Obama administration, which arrived in Washington promoting “sunshine” in government, turns out to be committed to silence and the censoring of less-than-positive news about its own workings. This administration fears the noise of democracy, preferring the silence of compliance just like in China, Iran and elsewhere.
Free Speech Hypocrisy at Other Agencies
At the Food and Drug Administration, they spy on their own employees’ email to prevent them from exposing wrongdoings.
At the Department of Defense, a soldier who speaks out about government lies in Afghanistan finds himself under investigation. Four employees of the Air Force Mortuary in Dover, Delaware, attempted to address shortcomings at the facility, which handles the remains of all American service members who die overseas. Retaliation against them included firings and suspensions. Bradley Manning is in his second year of confinement without trial for allegedly leaking Secret level documents that embarrassed the government, while a Top Secret leak that favors the Department of Defense position goes unpunished.
Free Speech Hypocrisy at the State Department
The same level of hypocrisy that applies to the White House also applies to the State Department. Secretary of State Clinton has made internet freedom and the rights of bloggers and journalists a cornerstone of her foreign policy, going as far as citing the free use of social media as a prime mover in the Arab Spring. At the Conference on Internet Freedom at the Hague, Clinton said:
When ideas are blocked, information deleted, conversations stifled, and people constrained in their choices, the internet is diminished for all of us.
In China, several dozen companies signed a pledge in October, committing to strengthen their – quote – “self-management, self-restraint, and strict self-discipline.” Now, if they were talking about fiscal responsibility, we might all agree. But they were talking about offering web-based services to the Chinese people, which is code for getting in line with the government’s tight control over the internet.
The United States wants the internet to remain a space where economic, political, and social exchanges flourish. To do that, we need to protect people who exercise their rights online.
Yet inside her own Department of State, Clinton presides over the censoring of the internet, blocking objectionable web sites that refer to Wikileaks, such as TomDispatch (above), while allowing sites that play to State’s own point of view, such as Fox.com, which also refer to Wikileaks. The use of specialized software and VPNs that State recommends to Iranians to circumvent the firewall block placed by the Tehran government are prohibited by the State Department to its own employees to get around State’s own firewall blocks.
While Clinton mocks Chinese companies, claiming terms like “self-management, self-restraint, and strict self-discipline” equate to censorship, her own Department’s social media guidance reminds employees to “be mindful of the weight of your expressed views as a U.S. government official,” and to “Remember that you are a Foreign Service USG employee.” Official guidance reminds employees that “All Department organizations with a social media site must monitor user-generated content,” and cites 27 laws and regulations that must be followed to be acceptable to the government. Self-censorship is the byword at State, as it is in China. Government bureaucrats know that this sort of slow-drip intimidation keeps people in line. They are meant to see what’s happening and remain silent.
One web site reported that when Matt Armstrong was hired as Executive Director for the now defunct Advisory Commission on Public Diplomacy, a condition to his hiring was to stop blogging. The condition was set by the office of Public Diplomacy and Public Affairs.
Whistleblower Ray McGovern was arrested merely for physically standing and turning his back on Clinton at a public rally where she was speaking about the importance of freedom of speech. Did Secretary of State Clinton say anything about the arrest? She remained silent.
Another State Department official wrote in the Foreign Service Journal:
Anyone who has been called on the carpet for blogging — especially those who have been summoned more than once — can tell you that the only consistent aspect of the State Department’s feedback is inconsistency. Blogging is encouraged by some elements within the department and is even discussed on the official careers page, complete with a substantial set of links to popular Foreign Service-related blogs. Yet even bloggers listed there are sometimes targeted for official harassment by other elements within the department for having a blog in the first place.
Free Speech: All Politics is Local
I am told that, in its 223 years of existence, I am the only Foreign Service Officer ever to have written a critical book about the State Department while still employed there. We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People exposed what State did not want people to know: that they had wasted enormous amounts of money in Iraq, mostly due to ignorance and a desire for short-term successes that could be trumpeted back home. For the crime of writing this book and maintaining a blog that occasionally embarrasses, State Department officials destroyed my career, even as they confirm my thesis, and their own failure, by reducing the Baghdad Embassy to half its size in the face of Iraq’s unraveling.
“The State Department was aware of Mr. Van Buren’s book long prior to its release,” explained attorney Jesslyn Radack of the Government Accountability Project, who now represents me. “Yet instead of addressing the ample evidence of fraud, waste, and abuse in the book, State targeted the whistleblower. The State Department’s retaliatory actions are a transparent attempt to intimidate and silence an employee whose critique of fraudulent, wasteful, and mismanaged U.S. reconstruction efforts in Iraq embarrassed the agency.”
The State Department took away my security clearance of 23 years over this posting and its Wikileaks link.
The State Department banned me from their building because I did not get permission for this article.
The State Department threw me out of my job because this posting offended the Secretary of State.
The State Department even chastised me for using its official seal in a satirical piece, showing censorship can be comprehensive, and petty, and that they know no boundaries between the two.
What is Not PettyIt is easy to magic-wand the problem of hypocrisy away– didn’t those government whistleblowers “break” rules? Well, yes, US government rules, the same as Syrian journalists broke Syrian government rules. Aren’t those websites blocked by the State Department objectionable on national security grounds? Yes, of course, the same way Tehran or Beijing claims its own national security is harmed by the web sites they block. The State Department blocks Wikileaks with its firewall same as China does not block the same site. But aren’t this blog’s posts offensive and not always “mindful of the weight of your expressed views as a U.S. government official”? Perhaps, but the highest standards we pretend to uphold in the First Amendment make no exceptions for offense nor include special categories for US government officials.
What is considered innocent, mindful and respectful today can be found to be offensive tomorrow by a government scared that its own employees will reveal its sad inner workings to the people it purports to serve. You cannot pick and choose among free speech; you get Richard Pryor, Kid Cudi and the KKK saying the N-word, Bill Maher and Glenn Beck, Your Candidate and that Other Idiot, the Pledge and flag burning. Inside of State, my blog and the so-called innocuous “Mommy Blogs” are no different, just occupying different points on the same continuum. My rights taken today, yours tomorrow.
If the US government in general, and the Secretary of State in particular, wish to be taken seriously around the world as advocates of a free internet and for free speech, they need to practice the same inside their own organizations. They cannot advocate for such abroad while using bully boy tactics to silence those at home.
As one Foreign Service blogger remarked about State’s free speech hypocrisy, “Your actions speak so loudly I can hardly hear what you’re saying.”
Can you hear us Mr. President? Madame Secretary? We are standing just outside your door, shouting.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
If Hillary is to promote freedom of speech abroad, she should start with protecting speech from her own employees
The title says it all. While the State Department mimes support for free speech around the world, it continues to work against those very rights for its own employees, in the instant case, me.
The Daily Kos calls State out:
State Department whistleblower Peter Van Buren writes in TomDispatch today about the escalating retaliation taken against him since he wrote a book about massive reconstruction fraud in Iraq.
Even as the Secretary of State rails against suppression of free speech abroad, the State Department continues to retaliate and threaten Van Buren for a book written in his personal capacity on his personal time.
And Van Buren understands – unfortunately firsthand – the unjust consequences that too often come with following one’s conscience. If the State Department is to promote freedom of speech abroad, it should start with protecting speech – even dissenting speech – from its own employees.
Isn’t this just a little embarrassing Madame Secretary? Aren’t you just a little ashamed at the gap between what you say and what your organization does? Because even if you don’t know or don’t care, others are watching.
Have you no shame Madame?
Read the full article on the Daily Kos.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
An Act of Conscience to Speak Out
The Department of State claims it can deny me the opportunity to speak or write publicly in violation of my First Amendment rights, and your First Amendment rights to listen to me if you wish.When I sought this permission to speak, I was told that I must write out my speech word-for-word for them to edit, alter, change, or refuse to allow at all, and that I could not speak extemporaneously and could not take questions from my audience. I was told that if I read out loud from my book I would be violating the State Department’s rules on divulging classified information, even though my book contains no classified information.
When I sought their permission to write, I was told people would mistake my writing for an official statement and permission was denied. As implemented, State’s rules amount to simple prior restraint.
The State Department believes that American Citizens give up their Constitutional rights for the privilege of employment. The Supreme Court said no, in Pickering v. Board of Education.
When I joined the State Department, the oath I swore was to the Constitution. When I speak, I am upholding the Constitution. When I speak, the State Department instead claims I am insubordinate.
So be it.
So it became an act of civil disobedience for the New York Times to publish my writing today. If my writing was insubordinate, then publishing was abetting my violation. Will State discipline the Times or just seek to bully me?
So it became an act of civil disobedience for RT.com to invite me to speak on camera about how whistleblowers are treated by our government. Will State discipline RT.com or just seek to bully me?
So it became an act of civil disobedience for these places to publish my writing about my case and those of other whistleblowers:
Maine has a proud Yankee tradition of standing up to tyrants and bullies, and so it became an act of civil disobedience for Maine’s Mid Coast Forum on Foreign Relations to allow me to speak in front of a group of over 150 people, most of whom work or worked in the foreign affairs field. It was with a sense of responsibility absent in today’s Foggy Bottom that several members of the audience told me they had retired from State and were saddened to learn how far from the ideals of free speech the organization that they– and I– served had fallen. Many in the audience agreed to donate to the non-profit organization that is representing me in my struggle to speak out.
The Forum recorded my entire speech, which will air throughout the State of Maine on public broadcasting in spite of the Department of State’s efforts to prevent people from hearing what I have to say.
If you want to join me in these acts of civil disobidience, do something against the State Department’s version of the law: listen to my speech in Maine.
We don’t live in Egypt, or Syria or anywhere else where the government can control what you listen to. If the Secretary of State will go before those people and speak for their rights to talk back to their governments, she should damn well allow the same for her own employees.
So it became an additional act of civil disobedience that in response to a request from the students of the University of Maine, I stood up and spoke to them too. It shouldn’t be an act of courage, but it was, because the US Department of State refused me permission. And because the students at a public university have a First Amendment right to listen, I stood up and exercised my First Amendment right to speak.
You can read about the speech here.
The State Department declared that this was an act of insubordination. I stand in broader footprints and declare it was an act guaranteed by the Constitution.
What do you say Mrs. Clinton? Is this insubordination? Is this the Department of State you lead? Is this the message, the America, you represent?
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
Daily Kos: Fear the Noise of Democracy
The Daily Kos runs an article today comparing shamefully the tactics used in Korea to stifle bloggers that offend the government there with tactics used by the US State Department to accomplish the same goals.South Korea brought the recent charges under its National Security Law – which bans “acts that benefit the enemy” but fails to specify what those acts are. Apparently, tweeting satirical images, as a blogger there recently did, counts as “acts that benefit the enemy.”
“This is not a national security case; it’s a sad case of the South Korean authorities complete failure to understand sarcasm,” said Sam Zarifi, Asia-Pacific director of the human rights group Amnesty International. Of course, this week, the State Department proved it was equally unable to understand sarcasm, ordering me to remove the State Department Seal from a satirical blog I posted.
The article concludes by scolding Mrs. Clinton’s Department of State:
Stifling speech is the stuff of dictatorships, not democracies. If the U.S. is to be a leader in democracy, the State Department should take the lead and encourage free speech, even critical speech.
Our government, like the one in Korea, fears the noise of democracy and instead prefers the silence of compliance.
Read the entire piece on the Daily Kos.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
My Weekly Memo from State
I get an email like this one every week from the State Department. They apparently have someone/someones’ whose job it is to cut and paste articles from this blog into a handy weekly gazette format. Since I am a certified teleworker for the State Department, as well as the author of these blog posts, perhaps I could be tasked directly with making up the gazette each week as a way to save some money in these tough budgetary times, though apparently the State Department has enough people working for it that someone has as their daily duty to read and cut and paste my blog fodder.
Entry Level Officers at the State Department, be cautious if someone offers you a “social media” job!
Be sure to see that though the gazette is for last week, they also mention a Financial Times interview with me from December. That one must have slipped through their poorly-worded Google Alert! See, if I was making up the gazette myself I would have definitely caught that one, just saying.
Of course, why bother to cut and paste the gazette when all the articles are just right here online anyway?
When I was interrogated about this blog by the big bad wolves in Diplomatic Security, they at least had printed out, in color, the hundreds of articles from this blog’s inception in April 2011, a serious phone book-sized stack o’ dead trees. State and technology have never really gotten along well I guess.Plus the gazette format really does not take full advantage of the medium, as it does not include the funny/ironic photos and occasional cartoons I feature on the blog. I mean, this blog post does not work at all without the visuals. Oh well, that’s a bureaucracy for you, no real sense of humor.
Just for grins, I have today filed a Freedom of Information Act request for all of the past gazettes. Let’s see how long it takes State to respond and if they respond with some sort of Ministry of Silly Walks-like excuse about why they won’t release to me my own writing.
And finally here’s a cartoon especially for the anonymous troll inside State who compiles my weekly gazette.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
State Department Demands I Remove Their Seal
With war maybe on its way in Iran, problems in Syria and Iraq, never mind troubles everywhere else abroad, what does your Department of State have time to focus on? This blog apparently.
Not to suggest State is overstaffed, but somehow in managing all those international thingies they also have time to demand that I remove the State Department Seal from a blog post. The post, linked here, used the Seal as part of a satirical/parody memo from Hillary to the media, instructing them on how the Department wants them to not tell the truth about events in Iraq. No sentient being could have confused that blog post with an actual State Department memo.
If you want to see the offensive blog post, click here. If you want to see a real State Department memo, go troll through the 250,000 documents on Wikileaks. I shouldn’t post a link to Wikileaks on this blog, or I’ll get in trouble again with the nancy boys who run Diplomatic Security. Read’in is hard work, and they still are sorting out a “link” from a “leak.”
If you’d like to read the State Department’s email to me demanding I remove the Seal from my blog, here it is.
There is, as always, precedent. In 2005 the George W. Bush White House demanded that The Onion stop using George’s seal. So, um, right on State, you’re in lock step with the White House on this issue, albeit seven years late.
Now of course the State Department hasn’t bothered to contact all the other people on the web using their Seal. They didn’t even bother to contact me when I last used that same Seal on this same blog a few months ago. Wonder why now?
Timing is everything in life. Earlier this month I filed a complaint against the Department for retaliatory personnel practices with the Office of the Special Counsel. By coincidence, of course, State kicked its introspection of me and my blog into a higher gear that same week. For those keeping score, that is retaliation for complaining about earlier retaliation. More on this on a later blog post.
Anyway, a lesser man would be angry, or bitter, over such pettiness, but me, I just want to be friends. Who can get mad over a cute, cuddly seal anyway? So be sure to check out my replacement seal.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
Enemy of (the) State
(This article originally appeared on the Daily Kos, written by Jesselyn Radack, an attorney at the Government Accountability Project who protects my First Amendment right to publish this blog)
The Washington Post has an article this morning on DHS Monitoring of Social Media Concerns Civil Liberties Advocates, which discusses the Department of Homeland Security’s 3-year-old practice of monitoring social media sites such as Facebook and Twitter.
Predictably, [a] senior DHS official said the department does not monitor dissent or gather reports tracking citizens’ views.
Maybe DHS doesn’t, but the State Department does.
I represent a State Department 23-year-veteran of the Foreign Service, Peter Van Buren, where the State Department admits that it does precisely that: monitor his personal Internet activity on his home computer during his private time.
Peter Van Buren wrote a book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (Metropolitan Books 2011), which is highly critical of our gross reconstruction fraud in Iraq. It went through pre-publication review and the State Department approved it by default by letting its own 30-day review period expire.
A month before the publication of his book, Mr. Van Buren began to experience a series of adverse personnel actions, which are ongoing today.
The State Department tried a variety of different tactics to censor Mr. Van Buren’s book and prevent him from promoting it. After vague references to ethics rules failed, it tried threats of criminal action. After those failed, it started coming down on his blogs (which had been posted since April 2011 without criticism) and live media appearances, [saying the contents of which] needed to be pre-cleared.
There are many incarnations of the State Department’s increasingly-restrictive policies regarding linking–not leaking–to WikiLeaks documents, with which they tried to jack up Van Buren. But now he is getting his own personal “compliance letters” that say things like:
You must comply fully with applicable policies and regulations regarding official clearance of public speeches, writings and teaching materials, including blogs, tweets and other communications via social media, on matters of official concern, whether prepared in an official or private capacity (Emphasis added).
Although hundreds of State Department employees write blogs (the State Department even links to the ones it likes), and thousands have Facebook accounts, Mr. Van Buren has been told (the government usually doesn’t admit this) that all his Internet activity on his personal computer in his private capacity is being monitored.
This is outrageous. I recommend that the democracy-loving, Internet-freedom-promoting State Department read the First Amendment.
Copyright © 2013. All rights reserved under International and Pan-American Copyright Conventions. The views expressed here are solely those of the author(s) in their private capacity and do not in any way represent the views of the Department of State, the Department of Defense or any other entity of the US Government. The Department of State does not approve, endorse or authorize this blog or book. Follow us on Twitter!
No Free Speech at Mr. Jefferson’s Library
(Originally posted at TomDispatch.com)
Here’s the First Amendment, in full: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Those beautiful words, almost haiku-like, are the sparse poetry of the American democratic experiment. The Founders purposely wrote the First Amendment to read broadly, and not like a snippet of tax code, in order to emphasize that it should encompass everything from shouted religious rantings to eloquent political criticism. Go ahead, reread it aloud at this moment when the government seems to be carving out an exception to it large enough to drive a tank through.
As the occupiers of Zuccotti Park, like those pepper-sprayed at UC Davis or the Marine veteran shot in Oakland, recently found out, the government’s ability to limit free speech, to stopper the First Amendment, to undercut the right to peaceably assemble and petition for redress of grievances, is perhaps the most critical issue our republic can face. If you were to write the history of the last decade in Washington, it might well be a story of how, issue by issue, the government freed itself from legal and constitutional bounds when it came to torture, the assassination of U.S. citizens, the holding of prisoners without trial or access to a court of law, the illegal surveillance of American citizens, and so on. In the process, it has entrenched itself in a comfortable shadowland of ever more impenetrable secrecy, while going after any whistleblower who might shine a light in.
Now, it also seems to be chipping away at the most basic American right of all, the right of free speech, starting with that of its own employees. As is often said, the easiest book to stop is the one that is never written; the easiest voice to staunch is the one that is never raised.
It’s true that, over the years, government in its many forms has tried to claim that you lose your free speech rights when you, for example, work for a public school, or join the military. In dealing with school administrators who sought to silence a teacher for complaining publicly that not enough money was being spent on academics versus athletics, or generals who wanted to stop enlisted men and women from blogging, the courts have found that any loss of rights must be limited and specific. As Jim Webb wrote when still Secretary of the Navy, “A citizen does not give up his First Amendment right to free speech when he puts on a military uniform, with small exceptions.”
Free speech is considered so basic that the courts have been wary of imposing any limits at all. The famous warning by Justice Oliver Wendell Holmes about not falsely shouting “Fire!” in a crowded theater shows just how extreme a situation must be for the Supreme Court to limit speech. As Holmes put it in his definition:
“The question in every case is whether the words used… are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
That’s a high bar indeed.
The Government v. Morris Davis
Does a newspaper article from November 2009, a few hundred well-reasoned words that appeared in the conservative Wall Street Journal, concluding with these mild sentences, meet Justice Holmes’s high mark?
“Double standards don’t play well in Peoria. They won’t play well in Peshawar or Palembang either. We need to work to change the negative perceptions that exist about Guantanamo and our commitment to the law. Formally establishing a legal double standard will only reinforce them.”
Morris Davis got fired from his research job at the Library of Congress for writing that article and a similar letter to the editor of the Washington Post. (The irony of being fired for exercising free speech while employed at Thomas Jefferson’s library evidently escaped his bosses.) With the help of the ACLU, Davis demanded his job back. On January 8, 2010, the ACLU filed a lawsuit against the Library of Congress on his behalf. In March 2011 a federal court ruled that the suit could go forward.
The case is being heard this month. Someday, it will likely define the free speech rights of federal employees and so determine the quality of people who will make up our government. We citizens vote for the big names, but it’s the millions of lower-ranked, unelected federal employees who decide by their actions how the laws are carried out (or ignored) and the Constitution upheld (or disregarded).
Morris Davis is not some dour civil servant. Prior to joining the Library of Congress, he spent more than 25 years as an Air Force colonel. He was, in fact, the chief military prosecutor at Guantánamo and showed enormous courage in October 2007 when he resigned from that position and left the Air Force. Davis had stated he would not use evidence obtained through torture back in 2005. When a torture advocate was named his boss in 2007, Davis quit rather than face the inevitable order to reverse his position.
In December 2008, Davis went to work as a researcher at the Library of Congress in the Foreign Affairs, Defense and Trade Division. None of his work was related to Guantanamo. He was not a spokesperson for, or a public face of, the library. He was respected at work. Even the people who fired him do not contest that he did his “day job” as a researcher well.
On November 12, 2009, the day after his op-ed and letter appeared, Davis was told by his boss that the pieces had caused the library concern over his “poor judgment and suitability to serve… not consistent with ‘acceptable service’” — as the letter of admonishment he received put the matter. It referred only to his op-ed and Washington Post letter, and said nothing about his work performance as a researcher. One week later, Davis was fired.
But Shouldn’t He Have Known Better Than to Write Something Political?
The courts have consistently supported the rights of the Ku Klux Klan to use extreme and hateful words, of the burners of books, and of those who desecrate the American flag. All of that is considered “protected speech.” A commitment to real free speech means accepting the toughest cases, the most offensive things people can conceive of, as the price of a free society.
The Library of Congress does not restrict its employees from writing or speaking, so Davis broke no rules. Nor, theoretically at least, do other government agencies like the CIA and the State Department restrict employees from writing or speaking, even on matters of official concern, although they do demand prior review for such things as the possible misuse of classified material.
Clearly, such agency review processes have sometimes been used as a de facto method of prior restraint. The CIA, for example, has been accused of using indefinite security reviews to effectively prevent a book from being published. The Department of Defense has also wielded exaggerated claims of classified material to block books.
Since at least 1968, there has, however, been no broad prohibition against government employees writing about political matters or matters of public concern. In 1968, the Supreme Court decided a seminal public employee First Amendment case, Pickering v. Board of Education. It ruled that school officials had violated the First Amendment rights of teacher Marvin Pickering when they fired him for writing a letter to his local paper criticizing the allocation of money between academics and athletics.
A Thought Crime
Morris Davis was fired by the Library of Congress not because of his work performance, but because he wrote that Wall Street Journal op-ed on his own time, using his own computer, as a private citizen, never mentioning his (unrelated) federal job. The government just did not like what he wrote. Perhaps his bosses were embarrassed by his words, or felt offended by them. Certainly, in the present atmosphere in Washington, they felt they had an open path to stopping their own employee from saying what he did, or at least for punishing him for doing so.
It’s not, of course, that federal employees don’t write and speak publicly. As long as they don’t step on toes, they do, in startling numbers, on matters of official concern, on hobbies, on subjects of all sorts, through what must be an untold number of blogs, Facebook pages, Tweets, op-eds, and letters to the editor. The government picked Davis out for selective, vindictive prosecution.
More significantly, Davis was fired prospectively — not for poor attendance, or too much time idling at the water cooler, but because his boss believed Davis’s writing showed that the quality of his judgment might make him an unsuitable employee at some future moment. The simple act of speaking out on a subject at odds with an official government position was the real grounds for his firing. That, and that alone, was enough for termination.
As any devoted fan of George Orwell, Ray Bradbury, or Philip K. Dick would know, Davis committed a thought crime.
As some readers may also know, I evidently did the same thing. Because of my book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, about my experiences as a State Department official in Iraq, and the articles, op-eds, and blog posts I have written, I first had my security clearance suspended by the Department of State and then was suspended from my job there. That job had nothing to do with Iraq or any of the subjects I have written about. My performance reviews were good, and no one at State criticized me for my day-job work. Because we have been working under different human resources systems, Davis, as a civil servant on new-hire probation, could be fired directly. As a tenured Foreign Service Officer, I can’t, and so State has placed me on indefinite administrative leave status; that is, I’m without a job, pending action to terminate me formally through a more laborious process.
However, in removing me from my position, the document the State Department delivered to me darkly echoed what Davis’ boss at the Library of Congress said to him:
“The manner in which you have expressed yourself in some of your published material is inconsistent with the standards of behavior expected of the Foreign Service. Some of your actions also raise questions about your overall judgment. Both good judgment and the ability to represent the Foreign Service in a way that will make the Foreign Service attractive to candidates are key requirements.”
There follows a pattern of punishing federal employees for speaking out or whistle-blowing: look at Davis, or me, or Franz Gayl, or Thomas Drake. In this way, a precedent is being set for an even deeper cloud of secrecy to surround the workings of government. From Washington, in other words, no news, other than good or officially approved news, is to emerge.
The government’s statements at Davis’s trial, now underway in Washington D.C., do indeed indicate that he was fired for the act of speaking out itself, as much as the content of what he said. The Justice Department lawyer representing the government said that Davis’s writings cast doubt on his discretion, judgment and ability to serve as a high-level official. (She also added that Davis’s language in the op-ed was “intemperate.” One judge on the three-member bench seemed to support the point, saying, “It’s one thing to speak at a law school or association, but it’s quite a different thing to be in The Washington Post.” The case will likely end up at the Supreme Court.
Free Speech is for Iranians, not Government Employees
If Morris Davis loses his case, then a federal employee’s judgment and suitability may be termed insufficient for employment if he or she writes publicly in a way that offends or embarrasses the government. In other words, the very definition of good judgment, when it comes to freedom of speech, will then rest with the individual employer — that is, the U.S. government.
Simply put, even if you as a federal employee follow your agency’s rules on publication, you can still be fired for what you write if your bosses don’t like it. If your speech offends them, then that’s bad judgment on your part and the First Amendment goes down the drain. Free speech is increasingly coming at a price in Washington: for federal employees, conscience could cost them their jobs.
In this sense, Morris Davis represents a chilling precedent. He raised his voice. If we’re not careful, the next Morris Davis may not. Federal employees are, at best, a skittish bunch, not known for their innovative, out-of-the-box thinking. Actions like those in the Davis case will only further deter any thoughts of speaking out, and will likely deter some good people from seeking federal employment.
More broadly, the Davis case threatens to give the government free rein in selecting speech by its employees it does not like and punishing it. It’s okay to blog about your fascination with knitting or to support official positions. If you happen to be Iranian or Chinese or Syrian, and not terribly fond of your government, and express yourself on the subject, the U.S. government will support your right to do it 110% of the way. However, as a federal employee, blog about your negative opinions on U.S. policies and you’ve got a problem. In fact, we have a problem as a country if freedom of speech only holds as long as it does not offend the U.S. government.
Morris Davis’s problem is neither unique nor isolated. Clothilde Le Coz, Washington director of Reporters without Borders, told me earlier this month, “Secrecy is taking over from free speech in the United States. While we naively thought the Obama administration would be more transparent than the previous one, it is actually the first to sue five people for being sources and speaking publicly.” Scary, especially since this is no longer an issue of one rogue administration.
Government is different than private business. If you don’t like McDonald’s because of its policies, go to Burger King, or a soup kitchen, or eat at home. You don’t get the choice of federal governments, and so the critical need for its employees to be able to speak informs the republic. We are the only ones who can tell you what is happening inside your government. It really is that important. Ask Morris Davis.
Addendum
After publishing the piece above, TomDispatch and I received two emails (both were signed but names removed here):
I enjoyed your piece on the Davis case and largely agree with your point of view, but am surprised to see you repeatedly refer to Davis as a “researcher.” He was a senior manager at CRS (my boss, in fact) and research was at no time among his job duties. Also, my understanding is that CRS does, indeed, restrict outside writing by employees when such writing takes policy positions on any issue that may be or come before Congress. This can be taken as harmful to the central CRS mission of objectivity. So Davis wasn’t fired for his position, he was fired for taking a position.
Second email, different author:There was no free speech violation against Moe Davis at LC and anybody who comes in actual contact with Davis realizes he is quite a fraud and liar. I worked at LC over 20 years and ran, on my own, the LCPA Veterans Forum. I brought 50 speakers of the Left and Right and it was a very respected program. I had scheduled Lynndie England as well as her prosecutor (at a later date) who had also published a book. Davis told me I should cancel her appearance (!). I told him both were coming and, since she had the guts to appear in public, he should tell her what he thought of her.
I am a Viet Vet with my own opinion about her behavior, but that is beside the point in bringing speakers to LC. Davis then went to the WSJ, which then interviewed me, making him look like an ass. He then resorted to threats and getting others to send threats to me and LC. I forwarded all to the police and IG. The event was cancelled over my objections, I then cancelled the Forum due to lack of free speech and retired early out of disgust. Davis wrote on LC time and stated who he was, as well as calling me in print a “veteran without values.” Yeah, I did a year in Vietnam and was a paratrooper with 27 jumps; he never mussed his hair in 25 years. David violated all the rules and laws and was told he would be fired if he did not follow the rules. CIA, FBI, etc., all have to conform to rules on publishing and have writings vetted. Davis simply refused. Read what he said about Khadr while at Gitmo as that is much different than his story now. He also tried to have a defense attorney arrested, resulting in a rebuke from the judge. Davis belongs in Iran issuing fatwas against authors he does not like.
One last point: Davis likes to say “popular outrage” cancelled Lyndie, but tons of calls came in support of free speech and condemning Davis and his violence-threatening pals. I received quite a few calls from other vets, who wrote complaints to their Senators about Davis. NOTE: you may publish all or any of my response.
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