Nydia Tisdale is a citizen journalist in Georgia. She does not get paid for her work, but instead sees it as a civic duty to record politicians and the political process, and then upload those videos to YouTube. What she does is in large part what democracy is all about– involved, informed citizens exercising their rights under the First Amendment.
Not in Georgia.
Tisdale’s day began with a speech by state Insurance Commissioner Ralph Hudgens, who in his talk described the debate performance of a Democratic rival as lousy enough that “I thought I was going to absolutely puke.”
The crowd was laughing at the insult when Hudgens interrupted, looking down from the podium at Tisdale, seated near the state’s governor. Hudgens said “I don’t know why you’re videotaping.” Another pol, a local attorney and former GOP chairman, and one of the event’s organizers, demanded Tisdale stop videotaping. She refused. The cops were called to arrest and remove her.
Yes, it got worse.
At some point, with Tisdale loudly stating her rights were being violated, one of the arresting cops allegedly pressed his groin into Tisdale’s backside, bending her over a counter, because that’s how it’s done in Georgia. Tisdale would eventually be charged with trespassing, a misdemeanor, and obstructing an officer “by elbowing him in the right cheek area and kicking him in the right shin.”
Linda Clary Umberger, chairwoman of the Dawson County GOP, followed the citizen journalist and the officer to an outbuilding. “I watched as a woman was bent over the counter on her face, with an officer over her,” Umberger said. “If I had been her, I would have elbowed him in the face, too. “I was so upset at how they handled it – I walked out.”
The state governor apparently sat in silence while the violation of civil rights took place in front of him. Because that’s how it’s done in Georgia.
“Let me be possibly politically incorrect here a second,” a later speaker, the state’s attorney general finally told the crowd. “If we stand for anything as a party, what are we afraid of with the lady having a camera, filming us? What are we saying here that shouldn’t be on film?
“What message are we sending? That because it’s private property, they shouldn’t be filming? What is the harm? Who’s the winner in the long run? Not a good move. The harm that this poses is far greater than her filming us. What are we hiding? If we are telling you why we are running and what we stand for, what are we hiding?”
Georgia still isn’t done harassing Tisdale.
Though she was released on bond, her camera, supposedly seized as “evidence,” remains locked up, because that’s how it’s done in Georgia. “I can’t work without it,” she said.
This is not Tisdale’s first time to run into unfair practices in Georgia. In 2012, the mayor of Cumming, Georgia, ejected Tisdale from an open city council meeting simply for videotaping the proceedings. A judge later signed an order laying a $12,000 fine on the city and mayor for violating the state’s open meetings law, never mind the Constitution of the United States, assuming that document still applies in Georgia.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
We were warned we might become this way.
In the 1928 case of Olmsted v. The United States, at issue before the Supreme Court was whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the defendant’s rights under the Fourth and Fifth Amendments. In a 5-4 decision, the Court held that rights were not violated and the evidence obtained without a warrant could be used.
In his dissent, Justice Louis Brandeis wrote:
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law…
Like Father, Like Son
In an era where Big Government acts in open contempt of the rule of law, killing its own citizens without due process, torturing its people, recklessly spying on them and taking away their right to free speech, it is little surprise that Small Government seeks to do the same. Petty is what petty does. Much of this all manifests itself in the militarization of our police coupled with their criminalization of everything.
Militarization of the Police
There are too many examples of violence for even a short list: a defendant killed by police at his own trial; a lengthy and detailed report that found the Albuquerque, New Mexico Police Department engages in the practice of excessive force, including deadly force, in violation of the Fourth Amendment; a false-postive drug test leading to a SWAT assault on an innocent family; a baby burned into a coma by a flash-bang grenade thrown by another SWAT team in another unnecessasry home raid; a woman sexually assaulted by a cop in a courthouse who then arrested her for reporting it; LA sheriffs beating a chained inmate; cops choking a non-resisting drunk into unconsciousness; police blindsiding a woman with a nightstick at basketball celebration; police killing a 93 year old woman in her own home; cops tasering and beating a deaf man trying to communicate with them in sign lanaguage and on and on.
Criminalization of Everything
Concurrent with the increasing acts of unwarranted violence by police against the citizens they are sworn to protect and serve are attempts to criminalize as much behavior as possible, whether it represents any threat to society at large (long sentences for minor marijuana possession) or is simply an excuse to bust heads (not dispersing immediately equating to resisting arrest.)
But here’s how it has morphed into even more, an assault on First Amendment rights. And even though the cops lost in some of the following cases, the pattern is too clear to ignore, too dark to high-five over a win.
Cops in multiple states– cases have been tried in Maryland, Florida, Tennessee, Missouri and Oregon– have arrested drivers for flashing their headlights. It is not uncommon for drivers to flash their lights at incoming traffic to warn of a police speed trap ahead. The result of the flashing is that incoming drivers slow down, precisely the real point of the law. Cops, however, claim the flashing lights are an interference with law enforcement.
In the most recent case, in Oregon, a judge did find that motorists flashing their headlights amounts to speech protected by the First Amendment, similar to when people honk their horns to welcome home the troops. “The citation was clearly given to punish the Defendant for that expression,” the judge wrote. “The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct.”
Videotaping the Police
Reaching back to the 1992 Rodney King beating in Los Angeles, police have been caught on camera in a seemingly-endless-string of beatings. The typical pattern is that before the video is shown, the beaten person is accused of resisting arrest and the cops claim the violence they visited on him was unfortunate, but necessary and appropriate. Then the video comes to light and the brutality is revealed.
So it is little surprise that the cops have tried to criminalize videotaping the cops. Evil only works well in the dark after all. A recent case in New Hampshire, however, may help forestall the dark a bit.
A woman was following a friend’s car to his house when an officer pulled him over. From about 30 feet away, after getting out of her car, the woman announced she was going to audio-record the police stop of her friend. The cops arrested her and charged her with wiretapping, along with disobeying a police officer, obstructing a government official, and unlawful interception of oral communications. Though the woman was never prosecuted, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights.
An appeals court sent the case back to trial. The cops settled for $57,000 (using taxpayer money to pay off the suit; small change really. In 2012 Boston paid a citizen $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his felony arrest for videotaping police roughing up a suspect) before the case when to full trial, allowing for a minor victory albeit at the cost of not having a court declare war on the abuse of a citizen’s First Amendment rights.
Another woman was not so successful. She was charged with using a mobile phone “hidden” in her purse to audio-record her own arrest. The cops charged her with wiretapping under Massachusetts law, which says people may record police officers only in public places, and only if the officers are aware that a recording is taking place.
The ACLU asserts “since 9/11, a disturbing pattern of innocent individuals being harassed by the police for taking still and video photographs in public places has emerged across the country.” ACLU has a long list of specific cases.
The ACLU also notes “Another disturbing trend is police officers and prosecutors using wiretapping statutes in certain states (such as Florida, Illinois, Maryland, Massachusetts, New Jersey and Pennsylvania) to arrest and prosecute those who attempt to record police activities using videocameras that include audio.”
Again in Massachusetts, a woman who videotaped a cop beating a motorist with a flashlight posted the video online. Afterwards, one of the cops caught at the scene filed criminal wiretapping charges against her, though she was never prosecuted.
There are many, many more examples of the criminalization of the First Amendment. Even when charges don’t stick, the act of being arrested, possibly mistreated, often serves the cops’ purpose.
Fish rot from the head they say, and as Justice Louis Brandeis tried to warn us some 80 years ago. When the federal government claims itself exempt from the Constitution, don’t be surprised when your local cops say the same.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Here’s a bit of history from another America: The Bill of Rights was designed to protect the people from their government. If the First Amendment’s right to speak out publicly was the people’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now, in Post-Constitutional America.
The Fourth Amendment
A response to British King George’s excessive invasions of privacy in colonial America, the Fourth Amendment pulls no punches:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: Our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as “unreasonable” in our old constitutional world, but no more.
Here, then, are four ways that, in the name of American “security” and according to our government, the Fourth Amendment no longer really applies to our lives.
The Constitutional Borderline
Begin at America’s borders. Most people believe they are “in” the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.
Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the “border search.” The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally “reasonable” simply by virtue of where they take place. It’s a concept with a long history, enumerated by the First Congress in 1789.
Here’s the twist in the present era: The definition of “border” has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.
Those modest exceptions were all part of constitutional America. Today, once reasonable searches at the border have morphed into a vast “Constitution-free zone.” The “border” is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the U.S. population. In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitras — whose work focuses on national security issues in general and Edward Snowden in the particular — knows firsthand. Since 2006, almost every time Poitras has returned to the U.S., her plane has been met by government agents and her laptop and phone examined.
There are multiple similar high-profile cases (including those of a Wikileaks researcher and a Chelsea Manning supporter), but ordinary citizens are hardly exempt. Despite standing in an American airport, a pane of glass away from loved ones, you are not in the U.S. and have no Fourth Amendment rights. How many such airport searches are conducted in the aggregate is unknown. The best information we have comes from a FOIA request by the ACLU. It revealed that, in the 18-month period beginning in October 2008, more than 6,600 people, about half of them U.S. citizens, were subjected to electronic device searches at the border.
Still, reminding us that it’s possible to have a sense of humor on the road to hell, the CBP offers this undoubtedly inadvertent pun at its website: “It is not the intent of CBP to subject travelers to unwarranted scrutiny.” (emphasis added)
Making It All Constitutional In-House
Here’s another example of how definitions have been readjusted to serve the national security state’s overriding needs: The Department of Justice (DOJ) created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants.
Some background: A warrant is court permission to search and seize something. As the Fourth Amendment makes clear, it must be specific: enter Thomas Anderson’s home and look for hacked software. Warrants can only be issued on “probable cause.” The Supreme Court defined probable cause as requiring a high standard of proof, or to quote its words, “a fair probability that contraband or evidence of a crime will be found in a particular place.”
A subpoena on the other hand is nothing more than a government order issued to a citizen or organization to do something, most typically to produce a document. Standards for issuing a subpoena are flexible, as most executive agencies can issue them on their own without interaction with a court. In such cases, there is no independent oversight.
The Department of Justice now claims that, under the Fourth Amendment, it can simply subpoena an Internet company like Facebook and demand that they look for and turn over all the records they have on our Mr. Anderson. Their explanation: The DOJ isn’t doing the searching, just demanding that another organization do it. As far as its lawyers are concerned, in such a situation, no warrant is needed. In addition, the Department of Justice believes it has the authority to subpoena multiple records, maybe even all the records Facebook has. Records on you? Some group of people including you? Everyone? We don’t know, as sources of data like Facebook and Google are prohibited from disclosing much about the information they hand over to the NSA or other government outfits about you.
It’s easy enough to miss the gravity of this in-house interpretation when it comes to the Fourth Amendment. If the FBI today came to your home and demanded access to your emails, it would require a warrant obtained from a court after a show of probable cause to get them. If, however, the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message you’ve ever sent without a warrant and it won’t constitute a “search.” The DOJ has continued this practice even though in 2010 a federal appeals court ruled that bulk warrantless access to email violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act similarly makes it clear that the Bureau’s agents don’t need warrants to access email in bulk when it’s pulled directly from Google, Yahoo, Microsoft, or other service providers.
How far can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the inspector general of the Department of Veterans Affairs (VA) issued a subpoena — no court involved — demanding that the Project On Government Oversight (POGO) turn over all information it has collected relating to abuses and mismanagement at VA medical facilities. POGO is a private, non-profit group, dedicated to assisting whistleblowers. The VA subpoena demands access to records sent via an encrypted website to POGO under a promise of anonymity, many from current or former VA employees.
Rather than seek to break the encryption surreptitiously and illegally to expose the whistleblowers, the government has taken a simpler, if unconstitutional route, by simply demanding the names and reports. POGO has refused to comply, setting up a legal confrontation. In the meantime, consider it just another sign of the direction the government is heading when it comes to the Fourth Amendment.
Technology and the Fourth Amendment
Some observers suggest that there is little new here. For example, the compiling of information on innocent Americans by J. Edgar Hoover’s low-tech FBI back in the 1960s has been well documented. Paper reports on activities, recordings of conversations, and photos of meetings and trysts, all secretly obtained, exposed the lives of civil rights leaders, popular musicians, and antiwar protesters. From 1956 to at least 1971, the government also wiretapped the calls and conversations of Americans under the Bureau’s counterintelligence program (COINTELPRO).
But those who look to such history of government illegality for a strange kind of nothing-new-under-the-sun reassurance have not grasped the impact of fast-developing technology. In scale, scope, and sheer efficiency, the systems now being employed inside the U.S. by the NSA and other intelligence agencies are something quite new and historically significant. Size matters.
To avoid such encroaching digitization would essentially mean withdrawing from society, not exactly an option for most Americans. More of life is now online — from banking to travel to social media. Where the NSA was once limited to traditional notions of communication — the written and spoken word — new possibilities for following you and intruding on your life in myriad ways are being created. The agency can, for instance, now collect images, photos, and video, and subject them to facial recognition technology that can increasingly put a name to a face. Such technology, employed today at casinos as well as in the secret world of the national security state, can pick out a face in a crowd and identify it, taking into account age, changes in facial hair, new glasses, hats, and the like.
An offshoot of facial recognition is the broader category of biometrics, the use of physical and biological traits unique to a person for identification. These can be anything from ordinary fingerprinting to cutting-edge DNA records and iris scans. (Biometrics is already big business and even has its own trade association in Washington.) One of the world’s largest known collections of biometric data is held by the Department of State. As of December 2009, its Consular Consolidated Database (CCD) contained more than 75 million photographs of Americans and foreigners and is growing at a rate of approximately 35,000 records per day. CCD also collects and stores indefinitely the fingerprints of all foreigners issued visas.
With ever more data available, the NSA and other agencies are creating ever more robust ways to store it. Such storage is cheap and bounteous, with few limits other than the availability of electricity and water to cool the electronics. Emerging tech will surely bypass many of the existing constraints to make holding more data longer even easier and cheaper. The old days of file cabinets, or later, clunky disk drives, are over in an era of mega-data storage warehouses.
The way data is aggregated is also changing fast. Where data was once kept in cabinets in separate offices, later in bureaucratically isolated, agency-by-agency digital islands, post-9/11 sharing mandates coupled with new technology have led to fusion databases. In these, information from such disparate sources as license plate readers, wiretaps, and records of library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can now be put into a single “file.”
Once you have the whole haystack, there’s still the problem of how to locate the needle. For this, emerging technologies grow ever more capable of analyzing Big Data. Some simple ones are even available to the public, like IBM’s Non-Obvious Relationship Awareness software (NORA). It can, for example, scan multiple databases, geolocation information, and social media friend lists and recognize relationships that may not be obvious at first glance. The software is fast and requires no human intervention. It runs 24/7/365/Forever.
Tools like NORA and its more sophisticated classified cousins are NSA’s solution to one of the last hurdles to knowing nearly everything: The need for human analysts to “connect the dots.” Skilled analysts take time to train, are prone to human error, and — given the quickly expanding supply of data — will always be in demand. Automated analysis also offers the NSA other advantages. Software doesn’t have a conscience and it can’t blow the whistle.
What does all this mean in terms of the Fourth Amendment? It’s simple: The technological and human factors that constrained the gathering and processing of data in the past are fast disappearing. Prior to these “advances,” even the most ill-intentioned government urges to intrude on and do away with the privacy of citizens were held in check by the possible. The techno-gloves are now off and the possible is increasingly whatever an official or bureaucrat wants to do. That means violations of the Fourth Amendment are held in check only by the goodwill of the government, which might have qualified as the ultimate nightmare of those who wrote the Constitution.
On this front, however, there are signs of hope that the Supreme Court may return to its check-and-balance role of the Constitutional era. One sign, directly addressing the Fourth Amendment, is this week’s unanimous decision that the police cannot search the contents of a cell phone without a warrant. (The court also recently issued a ruling determining that the procedures for challenging one’s inclusion on the government’s no-fly list are unconstitutional, another hopeful sign.)
Prior to the cell phone decision, law enforcement held that if someone was arrested for, say, a traffic violation, the police had the right to examine the full contents of his or her cell phone — call lists, photos, social media, contacts, whatever was on the device. Police traditionally have been able to search physical objects they find on an arrestee without a warrant on the grounds that such searches are for the protection of the officers.
In its new decision, however, the court acknowledged that cell phones represent far more than a “physical object.” The information they hold is a portrait of someone’s life like what’s in a closet at home or on a computer sitting on your desk. Searches of those locations almost always require a warrant.
Does this matter when talking about the NSA’s technological dragnet? Maybe. While the Supreme Court’s decision applies directly to street-level law enforcement, it does suggest an evolution within the court, a recognition of the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is now recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.
National Security Disclosures Under HIPPA
While the NSA’s electronic basket of violations of the Fourth Amendment were, pre-Snowden, meant to take place in utter secrecy, here’s a violation that sits in broad daylight: Since 2002, my doctor can disclose my medical records to the NSA without my permission or knowledge. So can yours.
Congress passed the Health Information Portability and Accountability Act (HIPPA) in 1996 “to assure that individuals’ health information is properly protected.” You likely signed a HIPPA agreement at your doctor’s office, granting access to your records. However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of those records for national security purposes. Specifically, the new version of this “privacy law” states: “We may also disclose your PHI [Personal Health Information] to authorized federal officials as necessary for national security and intelligence activities.” The text is embedded deep in your health care provider’s documentation. Look for it.
How does this work? We don’t know. Do the NSA or other agencies have ongoing access to the medical records of all Americans? Do they have to request specific ones? Do doctors have any choice in whose records to forward under what conditions? No one knows. My HMO, after much transferring of my calls, would ultimately only refer me back to the HIPPA text with a promise that they follow the law.
The Snowden revelations are often dismissed by people who wonder what they have to hide. (Who cares if the NSA sees my cute cat videos?) That’s why health care spying stands out. How much more invasive could it be than for your government to have unfettered access to such a potentially personal and private part of your life — something, by the way, that couldn’t have less to do with American “security” or combating terrorism.
Our health care providers, in direct confrontation with the Fourth Amendment, are now part of the metastasizing national security state. You’re right to be afraid, but for goodness sake, don’t discuss your fears with your doctor.
How the Unreasonable Becomes Reasonable
At this point, when it comes to national security matters, the Fourth Amendment has by any practical definition been done away with as a part of Post-Constitutional America. Whole books have been written just about Edward Snowden and more information about government spying regularly becomes available. We don’t lack for examples. Yet as the obviousness of what is being done becomes impossible to ignore and reassurances offered up by the president and others are shown to be lies, the government continues to spin the debate into false discussions about how to “balance” freedom versus security, to raise the specter of another 9/11 if spying is curtailed, and to fall back on that go-to “nothing to hide, nothing to fear” line.
In Post-Constitutional America, the old words that once defined our democracy are twisted in new ways, not discarded. Previously unreasonable searches become reasonable ones under new government interpretations of the Fourth Amendment. Traditional tools of law, like subpoenas and warrants, continue to exist even as they morph into monstrous new forms.
Americans are told (and often believe) that they retain rights they no longer have. Wait for the rhetoric that goes with the celebrations of our freedoms this July 4th. You won’t hear a lot about the NSA then, but you should. In pre-constitutional America the colonists knew that they were under the king’s thumb. In totalitarian states of the last century like the Soviet Union, people dealt with their lack of rights and privacy with grim humor and subtle protest. However, in America, ever exceptional, citizens passively watch their rights disappear in the service of dark ends, largely without protest and often while still celebrating a land that no longer exists.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
The Passion of Ray McGovern
Ray McGovern is a hell of a guy. An Army veteran, he worked for the CIA from the Kennedy administration up through the first Bush presidency, preparing the president’s daily intel brief and other important stuff. Along the way, McGovern began to see the fraud and evil of much of the government’s work, and has since become an outspoken critic of the intelligence world and an advocate for free speech. He speaks on behalf of people like Julian Assange, Chelsea Manning and Edward Snowden.
McGovern is also a very nice person, soft-spoken, serious, kinda looks like your uncle playing Santa Claus, full of fascinating Cold War history. I’ve had the pleasure of meeting Ray. He’s the kind of guy you meet and like almost immediately. I bet he was a hell of a spy.
A Wanted Man
Ray McGovern is also on the State Department’s BOLO list– Be On the Look Out– one of a series of government watch lists.
The old-timey wanted poster State’s Diplomatic Security printed up cites McGovern’s “considerable amount of political activism” and “significant notoriety in the national media” as if those points were somehow relevant to his inclusion on the watch list. Though McGovern is a thin man, age 75 with no history of violence, Diplomatic Security warns that its agents should USE CAUTION (their emphasis) when stopping McGovern and conducting the required “field interview.”
A Dangerous Man
What did McGovern do to end up on Diplomatic Security’s dangerous persons list? His offense was to turn his back on Hillary Clinton, literally.
In 2011, at George Washington University during a public event where Clinton was speaking, McGovern stood up and turned his back to the stage. He did not say a word, or otherwise disrupt anything. University cops grabbed McGovern in a headlock and by his arms and dragged him out of the auditorium by force, their actions directed by a from the side by a third man whose name was redacted from public records of the event. Photos of the then-71 year old man taken at the time of his arrest show the multiple bruises and contusions he suffered while being arrested. He was secured to a metal chair with two sets of handcuffs. McGovern was at first refused medical care for the bleeding caused by the handcuffs. It is easy to invoke the words thug, bully, goon.
The charges of disorderly conduct were dropped, McGovern was released and it was determined that he committed no crime.
And one more thing: the speech Clinton was making at the time of McGovern’s protest and arrest? She was condemning authoritarian governments who repress dissenters and internet freedom. As McGovern was being dragged out, Clinton stated that “The government does not want the world to watch,” in reference to Egypt, not her America as unfolding before her eyes. Clinton did not acknowledge the arrest, never broke character as it happened.
An Enemy of the State
In old-timey America, that might have been the end of McGovern’s troubles. However, in our post-Constitutional America, it was only the beginning.
Despite all charges having been dropped against McGovern and despite having determined that he engaged in no criminal activity, the Department of State then opened an investigation into McGovern, including his political beliefs, activities, statements and associations. The investigative report noted “McGovern does
seem to have the capacity to capture a national audience – it is possible his former career with the CIA has the potential to make him ‘attractive’ to the media.” The investigation ran nearly seven months, and resulted in the Be On The Lookout Alert.
Subjects of such alerts are considered potential threats to the Secretary of State. Their whereabouts are typically tracked to see if they will be in proximity of the Secretary. If Diplomatic Security sees one of the subjects nearby, they detain and question them. Other government agencies and local police are always notified. The alert essentially constitutes a standing directive by Diplomatic Security that the subject be stopped and seized in the absence of reasonable suspicion or probable cause that he is committing an offense. Stop him for being him. It is easy to see how these directives slash across the Fourth Amendment’s prohibitions against unwarranted search and seizure.
Subjects are also not allowed inside any State Department facility, including embassies and consulates abroad where typical Americans are by treaty allowed to seek refuge and protection. But not for Ray McGovern.
McGovern v. John Kerry
As we’ve said, McGovern is no typical guy. On February 15 he filed a lawsuit against Secretary of State John Kerry and his State Department, as well as George Washington University where the arrest took place, claiming his First Amendment rights were violated by unlawful police misconduct in retaliation for his act of protest. He also is suing over violation of his Fourth Amendment rights due to excessive use of force and his wrongful arrest. McGovern seeks injunctive relief prohibiting the State Department from directing law enforcement stop and question him on sight.
We’ll keep track of the lawsuit and report on its progress.
Why I Know So Much about BOLO Alerts
Information reluctantly made available to me as the State Department sought to persecute, prosecute and /or fire me for my whistleblowing book, We Meant Well, showed that I too was and may still be subject to a Diplomatic Security alert.
After a blog post I wrote in 2011 that was deemed insulting to then-Secretary of State Clinton, and after over two decades of public service, my State Department access card was impounded, I was marched out of the building and I was given a letter stating I was prohibited from entering any State Department facility, domestic or abroad. When a bit of necessary bureaucratic business came up a week or two later, I was told that I could only enter the State Department building as far as the public lobby, where I would be met by the appropriate Human Resources person in the presence of security personnel.
State later was forced to reveal that not only was I placed on its own Diplomatic Security watch list, but also on the Secret Service’s watch list, as they share responsibility for Clinton’s security as a former First Lady. McGovern may want to check on that.
My lawyers sought to have State remove me from the lists. State refused to confirm or deny my continued presence on the lists. State did not respond to my several requests for this information under the Freedom of Information Act.
Diplomatic Security knew of course I was no threat to anyone. I’m a fat old guy, short, and had a clean track record inside the Department since the 1980′s. Same for Ray McGovern; the cops that mistreated and arrested him for standing silently knew damn well he was neither disrupting anything nor a threat. They knew exactly what the First and Fourth Amendments said.
And they didn’t care.
This is what post-Constitutional America is about. The government, from major issues such as extrajudicial drone killings down to the pettiness which preoccupies the bullies in places like Diplomatic Security, no longer cares whether its actions are legal, and no longer cares if everyone knows it.
From the Founders forward, government has always done illegal things, naughty things, things that it knew were likely unconstitutional. What is new is that the acts have scaled up significantly, moving from analog to digital, and that the government is so sure that neither the courts nor the People will object that they no longer even go through the motions of hiding what they do.
Remember, both the Stasi and the Nazis did what they did quite openly, and kept excellent records.
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.
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.
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.
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.”
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.
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.
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.
(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.
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.
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.
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.
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.
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?
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?)
(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?
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.
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?
(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.
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!
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:
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.)
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.
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.
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.
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.
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 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 Petty
It 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.
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.
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?
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.
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