A story of our times, with massive First Amendment issues embedded.
A federal judge ruled that a group (more below, who they are makes this case even more complex) may put up posters on New York’s public buses and subways saying “Killing Jews is worship that draws us close to Allah.” The poster features a young man in a checkered headscarf with the additional words “That’s His Jihad. What’s yours?”
The poster is now at the epicenter between public safety and free speech. On Tuesday, a District judge ruled New York’s Metropolitan Transportation Authority (MTA) cannot stop the controversial ad.
The MTA argued the ad could incite violence against Jews.
However, MTA officials “underestimate the tolerant quality of New Yorkers and overestimate the potential impact of these fleeting advertisements,” the judge stated in his ruling. “Moreover, there is no evidence that seeing one of these advertisements on the back of a bus would be sufficient to trigger a violent reaction. Therefore, these ads — offensive as they may be — are still entitled to First Amendment protection.”
The MTA has now fired the next shot in the struggle, banning all “political” advertising on its subways and buses. You can certainly expect that decision to be challenged by a very broad range of actors.
The Speaker Versus the Speech
The issues surrounding the “Kill Jews” poster are complicated, in that the sponsor is a pro-Israel, anti-Muslim organization. Pamela Geller, the president of the American Freedom Defense Initiative (AFDI), the group that purchased the ads and sued the MTA to run them, was overjoyed at the court’s decision to allow her to post the, to some, inflammatory ads.
The Southern Poverty Law Center considers AFDI an “anti-Muslim” hate group. For example, earlier this year AFDI organized a portrait of the Prophet Mohammed contest, despite objections from Muslims who consider images of the Prophet blasphemous.
The presumed purpose of the “Kill Jews” ads placed by a pro-Israel group is to conflate the murder of innocents of one religion by smearing all members of another religion.
But can they say that kind of thing? Isn’t it Hate Speech and isn’t that illegal?
The Limits of Free Speech
The right to free speech enshrined in the First Amendment to the Constitution isn’t there for the easy cases; it is there for the tough ones.
The Supreme Court has thus been very reluctant in modern times to issue limits on free speech; what is now commonly called “hate speech,” things like the Klu Klux Klan using the N-word, or religious fundamentalists protesting at veteran’s funerals by way of anti-gay slurs, have been ruled repeatedly to be protected acts of free speech. You get the good with the bad, no matter what you personally consider the good parts and the bad parts.
See how it works?
Some Bad History
The broad concept of free speech is somewhat recent in the Supreme Court’s mind.
One of the most shameful examples of restraint comes from the early 20th century case of U.S. v. Schenck. In that case, the Court decided Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed opposition to the draft during World War I. It was in that case that Justice Holmes made his famous statement in favor of restraint, the one about free speech not allowing someone to shout “fire” in a crowded theatre.
So hate speech is illegal, like shouting Fire! and panicking a whole theatre full of people, right?
That Was Then, This is Now
The Supreme Court then did a 180 degree turn in the 1969 case of Brandenburg v. Ohio, which basically overturned Schenck. The Court held that inflammatory speech, even speech advocating violence, is protected under the First Amendment unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
That is where today’s New York District judge’s specific wording came from. When he said that New Yorker’s would understand the broader political point of the “Kill Jews” poster and not actually be moved to murder, he was confirming the standard set in Brandenburg v. Ohio: you have to do more than just announce an intent toward violence, your statement has to be such that people will be actually willing to follow it.
Back to the New York Buses
Of course predicting what people might do in response to any bit of speech is very hard stuff. But the Supreme Court in fact granted that power to predict to the judicial system. In the “Kill Jews” case, the judge clearly decided no one would see the ads and decide, based on that, to actually commit murder.
And that brings us back to Justice Holmes, the same Supreme Court judge who gave us the “fire in the crowded theatre” lines. Holmes later recanted, and became a firm advocate of nearly unrestrained free speech. Holmes wrote (Abrams v. United States) that the marketplace of ideas offered the best solution for tamping down offensive speech:
The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
In other words, let the ads play out on the New York buses and subways. The people are smart enough to know garbage when they smell it.
Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
The government can kill all cell service in a designated area of its choice during “emergencies,” and does not want to disclose any details about how or when they might employ this.
Implications for the First Amendment are made clear by one known local use — San Francisco’s Bay Area Rapid Transit System disabled service to quell protests in four downtown San Francisco stations over the fatal shooting of Charles Blair Hill by police.
Standing Operating Procedure 303
The Department of Homeland Security came up with the Federal-level plan — known as Standing Operating Procedure 303 — after cellular phones were used to detonate explosives targeting the London public transportation system in 2005. Unbeknownst at the time to the public, the government shut down cell service in various locations in New York City, primarily around tunnels to and from Manhattan.
SOP 303 spells out a “unified voluntary process for the orderly shut-down and restoration of wireless services during critical emergencies such as the threat of radio-activated improvised explosive devices.” Since the details of SOP 303 remain secret, no one is certain when or how it might be invoked.
The U.S. Court of Appeals for the District of Columbia Circuit in February sided with the government and ruled that the policy did not need to be disclosed under a Freedom of Information Act (FOIA) request from the Electronic Privacy Information Center (EPIC.) The court agreed with the government’s citation of a FOIA exemption that precludes disclosure if doing so “could reasonably be expected to endanger the life or physical safety of any individual.”
EPIC asked the court to revisit its ruling. On April 10, the court ordered the government to respond, a move that suggests the appellate court might rehear the case.
EPIC originally asked for the document in 2011 in the wake of the shut down of mobile phone service in the San Francisco Bay Area subway system during a protest. The government withheld the information, EPIC sued and won, but the government then appealed and prevailed.
Who Decides When to Kill the Network?
Under the direction of the so-called National Security Telecommunications Advisory Committee, SOP 303 allows for the shutting down of wireless networks “within a localized area, such as a tunnel or bridge, and within an entire metropolitan area.” That Advisory Committee is a Reagan-era, presidentially-appointed body composed of up to 30 senior executive-level representatives from communications, information technology, banking, and aerospace companies.
Since SOP 303 is not a law, it cannot be enforced. However, the telecoms have agreed to cut off cell service voluntarily whenever the Federal government requests SOP 303 be invoked.
The process of shutting down the cell service goes through the National Coordinating Center for Telecommunications (NCC), a coordination body set up by Ronald Reagan in 1984. The NCC, which includes representatives from the Central Intelligence Agency, Federal Emergency Management Agency, National Security Agency, every important cabinet department, and a few dozen big telecommunications and defense companies, takes shutdown requests from state and national Homeland Security officials, verifies whether they are “necessary,” and passes those requests on to wireless carriers in the affected areas.
First Amendment Questions
Because cutting off communications imposes a prior restraint on speech, it’s unclear whether SOP 303 is constitutional, and of course the specifics of the agreement are secret and the limits of government authority in this area have never been tested in court.
According to Eva Galperin of the Electronic Frontier Foundation, governments in places like China regularly shut down cellphone service to quell protests. “They did it in Egypt as well,” she explained, during the protests that deposed former Egyptian president Hosni Mubarak.
The exact decision-making process in the United States is classified. But you’ll know when it happens — check your phone for bars.
Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
First Amendment Semi-Win After Military Police Harass, Sexually Threaten Journalist
A very basic tenet of our democracy is that a free press exists to report to The People on the actions of their government, and that government is prohibited by the beautiful words of the First Amendment from interfering. In a small instance in Ohio, after the government had military police officers in the United States harass and confiscate the cameras of journalists, the journalists went to court and won back their rights.
The U.S. government agreed to pay The Toledo Blade newspaper $18,000 for seizing the cameras of a photographer and deleting photographs taken outside the Lima Tank plant last year. In turn, The Blade agreed to dismiss the lawsuit it filed U.S. District Court on behalf of photographer Jetta Fraser and reporter Tyrel Linkhorn against Chuck Hagel, then Secretary of Defense and the military police officers involved in the March 28, 2014, incident.
An attorney for The Blade said the settlement was made under the First Amendment Privacy Protection Act, which prohibits the government, in connection with the investigation of a criminal offense, from searching or seizing any work product materials possessed by a journalist. “The harassment and detention of The Blade’s reporter and photographer, the confiscation of their equipment, and the brazen destruction of lawful photographs cannot be justified by a claim of military authority or by the supposed imperatives of the national security state.”
The government admits no wrongdoing, however, and just paid off the settlement.
Here’s what happened. The reporter and photographer were in Lima to cover a news conference at another facility and had been tasked to take photos of area businesses for future use, including pictures of the tank plant, known as the Joint Systems Manufacturing Center.
As the pair were leaving they were detained by three military police officers and questioned. Fraser showed the officers her Blade identification, but initially declined to provide her driver’s license as she was not driving. She was removed against her will from her vehicle and handcuffed for more than an hour.
During the confrontation, the officers repeatedly referred to Ms. Fraser in the masculine gender. She objected and was told by one officer, “You say you are a female. I’m going to go under your bra.”
The officers then confiscated two cameras, memory cards, a pocket-sized personal calendar, and a notebook in clear violation of the First Amendment.
Philly Cop Arrests Man for Photographing Philly Cop Harassing Homeless Woman
A college student arrested as he photographed a Philadelphia police officer harass a homeless woman in a public park was put into handcuffs and held for an hour. Federal jurors must now decide whether the cop had cause to cuff Coulter Loeb, 24, and charge him with disorderly conduct.
The case, however, is about far more than a simple disorderly conduct rap. At issue is how the Philadelphia government sees the First and Fourth Amendments to the Constitution, and how it views people fulfilling their responsibilities as citizens to provide oversight to government employees performing their jobs. And it does not look good for all that in Philly.
Things went south almost from the get-go, after the trial judge dismissed any connection between the arrest and the First Amendment.
In a pretrial order that covered two similar cases, the judge ruled that the federal appeals court in Philadelphia had not “clearly established” a First Amendment right to photograph police as of 2011, when this incident occurred. “Whether the Third Circuit will eventually decide to follow what appears to be a growing trend in other circuits to recognize a First Amendment right to observe and record police activity is, of course, not for this court to decide, even if there are good policy reasons [to] adopt that change,” U.S. District William Yohn wrote. He therefore threw out Loeb’s free-speech claim, leaving a jury to weigh only the Fourth Amendment issues of false arrest and malicious prosecution.
Moving on to how the city of Philadelphia views these issues, we turn to the city attorney working the case, who described arrestee Coulter Loeb, in front of his ACLU attorney, as “a meddlesome 24-year-old” with “very high-minded ideas about government” and the role of media. The Assistant City Solicitor told jurors that Loeb was interfering with police work by photographing police work in a public place.
But what was in the mind of the arresting officer? “He [Loeb ]looked me up and down, and then took one step back. That to me was being a wise guy,” said the cop.
Irony Alert: Yes, yes, it was in Philadelphia in 1787 that the Constitutional Convention was held. How far we have fallen.
Copyright © 2017. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
As regular readers of this blog know, a central theme of mine is Post-Constitutional America, the third great era of our history.
The Way It Was
In the first era, the colonial years, a unitary executive, the King of England, ruled without checks and balances, allowing no freedom of speech, due process, or privacy when it came to protecting his power.
In the second, the principles of the Enlightenment and an armed rebellion were used to push back the king’s abuses. The result was a new country and a new constitution with a Bill of Rights expressly meant to check the government’s power. As imperfect as all that was, it represented a concept of moving toward the better. Those ideas — enshrined in the Bill of Rights — are disarmingly concise. Think of them as the haiku of a genuine people’s government.
The Way It Is
Now, we are wading into the ever-deeper waters of a third era, a time when that government is abandoning the basic ideas that saw our nation through centuries of challenges far more daunting than terrorism.
America has entered its third great era: the post-constitutional one. Here we have only the rights the government allows us to have. Think of it as a variable totalitarian system. Free speech is not outlawed, but can be restricted at will — a punk cop Tasers a legitimate protester, the Federal government slams a prominent journalist away. Privacy exists, but only as the government doles it out, often as a reward for not being a troublemaker, while retaining the “right” to pull it away. The Stasi and 1984‘s Big Brother sought total control over every aspect of peoples’ lives; today’s power is used as needed, though the mechanisms of broad application exist and grow.
Not by Any Recognizable Rules
On or about Sept. 11, 2001, American character changed. What Americans had proudly flaunted as “our highest values” were now judged to be luxuries that in a new time of peril the country could ill afford. Justice, and its cardinal principle of innocent until proven guilty, became a risk, its indulgence a weakness. Asked recently about an innocent man who had been tortured to death in an American “black site” in Afghanistan, former Vice President Dick Cheney did not hesitate. “I’m more concerned,” he said, “with bad guys who got out and released than I am with a few that, in fact, were innocent.” In this new era in which all would be sacrificed to protect the country, torture and even murder of the innocent must be counted simply “collateral damage.”
At its root is a maddening ambiguity born of a system governed not by any recognizable rules of evidence or due process but by suspicion, paranoia and violence.
That sums it up for me about as well as anything else I’ve been allowed by the government to read.
The Dearborn, Michigan area is home to one of the largest Muslim populations in the United States, so this can’t be blamed on some small-town cops ignorant of the law. Of course, since that “law” is actually the First Amendment to the U.S. Constitution guarantee of freedom of religion, even that is not much of an excuse.
So we’re left with the “What were they thinking?” defense.
A Muslim woman who was forced to remove her hijab by police in Michigan claims her religious rights were violated. She filed a civil rights lawsuit demanding the policy change.
Today’s American Traffic Stops
Malak Kazan, 27-years-old, pictured, is suing the police department and city of Dearborn Heights, a suburb of Detroit, after officers refused her request to keep her headscarf on while taking booking photos.
Kazan was stopped for a traffic violation and arrested after the cops found her license had been suspended for outstanding traffic tickets. Fair enough. At the police station she was told to remove her headscarf. When she said that would violate her religious beliefs, the cops said there were no exceptions. A supervisor said the same thing. Kazan says she then requested a female officer take the picture, also denied. Her lawsuit says she was threatened with further detention if she didn’t comply. Kazan reluctantly removed her hijab and was photographed under protest.
The lawsuit demands the police department change its policy to allow headgear worn for religious purposes.
The Fake Excuse
Dearborn Heights Police Chief Lee Gavin said his department requires individuals to remove head coverings, as they can “contain concealable items that could pose a threat or chance of injury to the cops or to themselves.” He said procedure is to have women remove hijabs in the presence of a female officer, but there aren’t always enough female officers at the station.
The Chief did not explain why any such search was not conducted prior to the booking photo, at which time Kazan had already been in police custody for some time. Any threatening objects concealed could have long come into play at that point. Typically suspects are searched at the time of arrest, and immediately upon arriving at the police station.
Dearborn Out of Sync
After various legal actions, several cities, including all of Orange County, California and Washington, DC, have changed their policies to allow hijabs and other religious headgear. Generally, so does TSA. An officer may request removal of religious headgear only when a traveler is unable to pass metal detection, or after a pat down when a concern has not been resolved.
Reminder: It will be the taxpayers on the hook for the costs of litigation, plus the inevitable settlement offered to Kazan.
This– THIS LINK— could have sent me to jail. Another link came very, very close to sending Barrett Brown to jail. Brown was just sentenced to five years in jail on other charges that the government could make stick, in another step towards the criminalization of everything.
The United States v. Barrett Brown
Brown, pictured, 33-years-old, was arrested in 2012 after his and his mothers’ homes were raided and he used “threatening” language toward FBI officers in a response posted to YouTube. He was subsequently accused of working with hackers, whose efforts yielded a huge tranche of embarrassing and revealing information concerning misbehavior and sleaze at U.S. government contractors, primarily Stratfor.
Among the secrets exposed were collaborative efforts between the government and private contractors to monitor social networks, and to develop online surveillance systems.
The charges against Brown included the claim that merely linking to the leaked information was illegal, an alleged crime for which prosecutors sought decades in prison. Brown ultimately signed a plea deal on three lesser charges: transmitting a threat (the YouTube video), trying to hide a laptop computer during a raid, and to being “accessory after the fact in the unauthorized access to a protected computer.” He spent a year awaiting trial in federal prison, and was subject to a six-month gag order prohibiting him from even discussing his case with the media.
On January 22, a Dallas court sentenced Barrett Brown to 63 months in federal prison, minus time already served. He was also ordered to pay $890,000 in restitution to the Stratfor Corporation.
Who is Barrett Brown?
Barrett Brown is an internet guy. He may or may not have been involved with web naughty boys Anonymous (he denies the association) and most certainly was deeply involved with broad free speech issues online. In 2011, Brown posted a link in a chatroom, pointing to data that was obtained during the late-2011 hack of Stratfor Global Intelligence. The link pointed to documents on the Wikileaks site. The docs are still there.
The government arrested Brown and charged him with a number of offenses, the most significant of which was for posting that link. The link, the government contended, exposed enormous amounts of credit card information, a crime. Not mentioned by the government, the link also documented discussions of assassination, rendition and how to undermine journalists and foreign governments, plus the social media stuff mentioned above.
To be clear, neither the government nor anyone else accused Brown of stealing the info himself, or misusing the info to use others’ credit cards, physically possessing the information, hosting it on a server he controlled or anything like that. His crime was simply linking to data that already existed on the Internet and which was already available worldwide for viewing.
Looking for a Test Case
Prior to Brown pleading guilty to the three lesser counts he was sentenced for January 22, the government dropped the other charges related to linking as a crime. Though the government in its Motion to Dismiss gave no reasons for its decision, the implication is that while they were clearly looking to set a precendent on the Brown case, they did not want that precedent to be a loss. Better to let a small fry like Brown swim away than risk the greater goal.
What kind of test case? Having failed to find any legal or otherwise effective way to deal with sites like Wikileaks, or the publication of classified materials elsewhere on the Internet such as the Snowden documents, the government is taking a side-step in seeking to punish those that use, view or handle the material itself.
For example, when the Wikileaks information first started pouring out across the web, most government agencies blocked access to the data via their firewalls, claiming the content was still classified and thus could not be viewed on a government computer even while it could be viewed on any other web-connected computer from Cleveland to Karachi. Similar blocks have been put in place to prevent much of the Snowden material from being viewed at various work sites.
Before Barrett Brown, Me?
The attempt by the government to punish people for links to “objectionable” material did not start with Brown. Though I can’t promise I was the first test case, I was certainly an early attempt.
In 2010 the Department of State suspended the Top Secret security clearance I had held without incident or question for over twenty years because I linked to a supposedly classified document on the Wikileaks site from my blog.
State referred my linkage to the Department of Justice for prosecution in fall 2010. When Justice declined without reason to pursue the case, State took the non-judicial action of “temporarily” suspending my security clearance indefinitely, because of the link. State claimed that via that link I revealed classified information publicly, a major no-no for cleared personnel and sought to fire me. As in the Brown case, in the end State choose not to pursue charges, again without comment. I was defended by several excellent lawyers, and retired from State on my own terms, including no gag orders.
There may be other such link cases out there that we do not yet know of. They may be classified, or the parties involved may be under gag orders, as was Brown.
There appears little question that the government is testing the concept, looking for a case that it can win that would criminalize linking. From the government’s point of view, the win would pay off handsomely:
— With use of their content criminalized, sites like Wikileaks would slip beneath the world radar. People would be increasingly afraid of reading them, and the crowdsourcing critical to sifting through millions of documents would slow down significantly.
— In cases the government saw as particularly dangerous, people would disappear into jail. With a precedent set in a “good” test case, winning such prosecutions would be rote work for interns. Is there a link? Did Ms. X create the link? Does the link go to classified information? It’s a slam dunk.
— Best of all from a control standpoint, prosecuting links will have a chilling affect. Many people will simply be afraid to take the chance of legal trouble and stop creating links or following them. That will certainly be the case among the main stream media, already far too skittish about security matters. One wonders what effect such prosecuting of links will have on search engines like Google, essentially little more than a collection of links.
Another step toward a post-Constitutionalization of America is the creeping criminalization of everything. If every act is potentially cause for prosecution, the ability of the government to control what people do or say grows.
Who could have guessed that in 2015 a click of the mouse would be a subversive act?
There will be many, many articles today speculating what Dr. Martin Luther King would say about this event or that. There is much to talk about — the police killings of young black men, crippling economic inequality (today the 85 richest people on the planet have the same wealth as the poorest 3.5 billion combined), the use of gerrymandering and election day tricks to disenfranchise people — the list is a long one.
Dr. King’s most powerful message revolved around freedom. Freedom for blacks, freedom for whites, freedom for Americans, freedom. Writing from jail, in his famous letter from Birmingham, King said “Injustice anywhere is a threat to justice everywhere.” King was rightly focused primarily on the injustices of segregation. But his concept of freedom extended far beyond simply race. He understood the word in the broadest possible sense, and so I’ll add one more article to the stack today putting words into Dr. King’s mouth, seeking to bring his message forward.
Following a singular day — one day — of terror attacks, we set fire to the whole world. Willingly, almost gleefully, we invaded Afghanistan and Iraq, the former on the promise of bloody revenge and the latter based on flimsy falsehoods that today seem as real as childhood beliefs. We reinvaded Iraq in 2014, and brought war to many other places. But we want to believe and so it is easy to lie to us, just like with the Tooth Fairy.
Worse yet, we turned on ourselves. With a stroke of a pen, we did away with 226 some years of bitterly fought for civil rights — silence the First Amendment and do away with critics and whistleblowers, cow journalists and use the police to break up the peaceful assembly of citizens seeking to address their government, rip open the Fourth Amendment and allow the government to spy into our lives. Plumbing for the depths of evil, we as a nation torture men, create an archipelago of secret prisons and make excuses to keep them still open, build a regime of indefinite confinement and rendition to feed our concentration camps, hungering for flesh. When even that was not enough, we unleashed death from the sky, smiting people who bothered us, maybe occasionally threatened us, often times simply people who were near by or looked like our possible enemies. In the calculus of the day, we kill them all without a concern that any deity would sort the bodies out later. How much would be enough for revenge?
That our nation can be both vengeful and impersonal at the same time horrifies. I wonder what Dr. King would say.
We thought we had a chance at change in 2008 but instead were proven again to be just dupes and amateurs. He could have turned it all around, in those first weeks he could have asked the rivers to flow backwards and they just might have. He could have grounded the drones, torn up the Patriot Act, held truth commissions to bring into the light our tortures, re-emancipated America in ways not unlike Lincoln did in the 1860s. Slam shut the gates of Guantanamo, close the secret prisons that even today still ooze pus in Afghanistan, stop the militarization of Africa, bring the troops home, all of it, just have done it. What a change, what a path forward, what a rebirth for an America who had lost her way so perilously. One man could have made a difference and when he did not even try, he helped solidify in America a sense of cynicism and powerlessness that empowers evil people further. I wonder what Dr. King would say.
Today, this day, we are left with only ironic references to where we were and what we had been. We now today go through the motions of a celebratory day like an old married couple dutifully maintaining civility where joyous lust once was. We are raising a new generation who accept that their nation tortures, invades, violates and assassinates, all necessary evils requiring us to defame democracy while pretending to protect it.
On this same day we celebrate the legacy of Dr. Martin Luther King, who wrote to us all from a jail cell in sweltering Birmingham. King’s guidance in that letter was that the “means we use must be as pure as the ends we seek.” We cannot fight wrongs by committing wrongs. For what noble crusade do we allow the torturers to walk free? To claim the right to kill people, even Americans, anywhere in the world simply because we can do so? Why do we prolong wars, long ago not just lost but rendered pointless, in Afghanistan and Iraq and elsewhere? For what crusade do we keep our enemies in Guantanamo? These are the features and questions of Post-Constitutional America. I wonder what Dr. King would say.
I’ve been accused of over-romanticizing America’s Constitutional Era, 1789-9/11/2001. Indeed, didn’t the worst of the abuses Dr. King fought against take place during that time, as King describe them “vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick, brutalize, and even kill your black brothers and sisters with impunity.”
The horrors ranged from those depths to the smallest of examples; again, from Birmingham, King wrote “when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she cannot go to the public amusement park that has just been advertised on television, and see tears welling up in her little eyes when she is told that Funtown is closed to colored children, and see the depressing clouds of inferiority begin to form in her little mental sky, and see her begin to distort her little personality by unconsciously developing a bitterness toward white people.”
America’s Constitutional Era was grossly imperfect. Yet for its obvious failings, there was a sense of the possibility of progress; halting, awkward, unfinished, but, well, for lack of a better word and to use a word that has become a symbol of modern times’ irony, Hope. Dr. King believed in Hope, and indeed based the soul of his movement on it — things could be made better, saying “If the inexpressible cruelties of slavery could not stop us, the opposition we now face will surely fail.” I wonder what Dr. King would say today about America.
Lots of talk today, Martin Luther King Day. But those are some of the questions Dr. King would demand answers for from his grave.
Challenges to free speech don’t always involve guns.
Citizens, you have an obligation to remain silent. What you say online, once upon a time an arena of free speech, can and will be used against you.
Here are two creeping examples.
In the UK
Six British soldiers were killed in Afghanistan, what the Prime Minister called a “desperately sad day for our country.” A British teenager, Azhar Ahmed, went on Facebook to angrily object, saying innocent Afghans killed by British soldiers receive almost no attention from the media. He opined the UK’s soldiers in Afghanistan are guilty, their deaths deserved, and are therefore going to hell.
The following day Ahmed was charged with “a racially aggravated public order offense.” He was convicted “of sending a grossly offensive communication,” fined and sentenced to 240 hours of community service. The judge Ahmed’s opinions “beyond the pale of what’s tolerable in our society.”
The Independent newspaper noted that Ahmed “escaped jail partially because he quickly took down his unpleasant posting and tried to apologize to those he offended.” Apparently, says Glenn Greenwald at The Intercept, “heretics may be partially redeemed if they publicly renounce their heresies.”
Criminal cases for online political speech are now commonplace in the UK. Around 20,000 people in Britain have been investigated in the past three years for comments made online. The investigations have by no means been neutral, instead directed at the country’s Muslims for expressing political opinions critical of the state’s actions.
Wow, luckily this can’t ever happen in America… right? Oh wait, it just did.
A man convicted in a fatal car crash and released early from prison on parole has ended up back behind bars after an Ohio judge and the victim’s family took issue with a post he made on Facebook.
Ryan Fye’s post included a photo of him making an obscene gesture and a message saying, “Prison didn’t break me. It MADE me.” Fye claims he was responding to a Facebook threat from someone unrelated to his case who said they “couldn’t wait to bump into” him and that prison ought to have made him tough enough to handle the encounter.
The message upset relatives of the man killed by Fye in the 2013 crash. A judge also found the Facebook posting disrespectful toward the family and concluded it violated parole sanctions imposed on Fye.
While typical terms of probation prohibit threats, intimidation, harassment, and retaliation against the victims, prosecution, judges, family of victims and so on, it is quite unclear that Fye’s Facebook posting is even directed at any such people, or that it is even a threat or act of intimidation. Many people might characterize it as boastful at worst.
Fye’s defense attorney said Fye didn’t violate probation or the law. “Committing a crime is a probation violation, not abiding by the rules is a probation violation. Mr. Fye didn’t do any of those things.” Fye is back in custody while he appeals the judge’s decision to lock him up.
Over a Facebook posting.
A handful of ragtag, plucky patriots defended their own misguided understanding of free speech by seeing the Seth Rogen-James Franco assassination bro-movie The Interview on our most American of holidays, Christmas.
God Bless The Interview
At the Austin Alamo Drafthouse (Remember the Alamo!) a few, proud moviegoers stood before the film ran to sing Lee Greenwood’s “God Bless the USA”, and posted the effort to YouTube. The brave representative of that band of brothers and female virtual brothers, risking near-certain death at the hands of any North Korean sleeper agents in Austin, reminded the audience that beer is better in a democracy. The sing-along ended with chants of “USA! USA!”
The owner of the Alamo Drafthouse said “It’s more than watching a silly Seth Rogen buddy comedy. Today it’s really, in a small way, it is sort of an act of patriotism to come and watch this movie this week.”
In Atlanta, similar selfless acts were seen as the sold-out crowd sang along to Kate Smith’s rendition of “God Bless America” before the screening of Sony Pictures’ ode to free speech and assassination. “The movie, and the singing,” said the Atlanta-Journal Constitution, “served as a statement from many theatergoers that a foreign power would not dictate what forms of entertainment Americans could or could not enjoy.”
Perhaps a little insight is needed in these heady times.
In November someone hacked deeply in Sony Entertainment’s U.S. computer network. They dumped all sorts of data onto the Internet, including embarrassing racist emails by Sony execs mocking Obama, salary details of big stars and silly things about how bad Adam Sandler movies are. The initial hacks included nothing specific about “The Interview.” American mainstream media feasted on the dumped gossip, ensuring any embarrassment to Sony reached a worldwide audience. The FBI stated the hacks were not committed by North Korea (a suspect given the topic of Sony’s film) and DHS dismissed threats someone claiming to be the hackers made later against theatres that would show the film at Christmas. “The Interview” had its premiere in Hollywood and was shown in many locations as part of the usual media preview PR campaign. Nothing violent happened.
Oops! Major theatre chains decided on their own to not show the film. Sony pulled the film from distribution, a business decision, albeit a lame and weak one.
Then, in some sort of chum-churning all-American exercise (following the release of the Senate torture report — coincidence!) blame for the Sony hack was re-directed squarely at North Korea not only by the revised FBI, but by the President of the United States himself. This in spite of fairly weak explanations from the FBI about why the hacks seemed to come from North Korea, and fairly robust explanations from the tech media explaining why the hacks did not seem to come from North Korea.
The President vowed revenge on the North Koreans for what had morphed overnight from just another example of corporate hacking into a literal act of war, the first shots in the endless cyberwar the Pentagon had been
hoping for predicting for years. It was on! And Americans rose to the bait, fueled by a growing media hysteria over… free speech?
The First Amendment of the Constitution makes clear the government is not allowed to restrict speech: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The concept of free speech in the Bill of Rights is directed at OUR government stopping us, not whether or not some other government wants to stop us.
The First Amendment was meant to make one thing indisputably clear: free speech was the basis for a government of the people. Without a free press, as well as the ability to openly gather, debate, protest, and criticize, how would the people be able to judge their government’s adherence to the other rights? How could people vote knowledgeably if they didn’t know what was being done in their name by their government? An informed citizenry, Thomas Jefferson stated, was “a vital requisite for our survival as a free people.”
“Free Speech” in our Constitutional context is speaking truth to our own government and society, not imagining you are flipping off Kim Jong Un.
What the faux-patriots ignore is that what Sony and the theatre chains did and did not do is far short of the ideals of “free speech” and much closer to the bowels of cold, hard business decisions. Sony’s and the theatre chains’ lawyers very likely decided that showing the film in light of weak threats would open them to liability should some nut case have done something, and/or that the weak threats would have scared moviegoers off anyway and they wouldn’t have made any money. That’s it. Cash.
The true patriotic exercise of free speech is not masking a business decision as a principled stand. It is not recycling some old jingoistic songs in front of a sympathetic group of beer drinkers. You want courage? Say something unpopular against the government. Blow the whistle at great personal risk on a wrong that needs to be exposed. March in protest at risk of a police beating or arrest.
By all means, go see any movie you want, and have fun (reviews suggest the Seth Rogen character hides an explosive device in his own butt in one scene from The Interview). But don’t conflate that with acts of true patriotism and the exercise of free speech.
Hmm. They must be using a different version in Georgia, where a small town has used some odd twists on traffic laws to violate the First Amendment’s right to practice one’s religion, banning a mosque from opening. All together now — Freedumb!
Kennesaw, Georgia, a pus-filled, hateful ashtray of a city of about 30,000 people in north Georgia, voted down a Muslim group’s request to rent an unused retail space and open a mosque in the city.
The vote was 4-1 against as anti-Muslim protesters stood outside the meeting with signs such as “Ban Islam” and “Islam Wants No Peace!”
Mayor Mark Matthews forbade comment inside from the public about religion, so critics instead said they opposed the mosque on the grounds parking. This despite the fact that the Muslim group had already agreed to limit attendance to 80 worshipers at a time in the 2,200 square foot space. The group also agreed to build 40 new parking spaces well-away from the nearby shopping area.
The clever haters in Georgia figured they would get around that naughty old First Amendment to the Constitution (Note: the Constitution is that thingie that defines the freedom our troops are always fighting Muslims overseas to protect) by not, no sir, not in any way at all, making the mosque ban about religion. Nope. All the good white people of Kennesaw are concerned about is traffic issues in what no doubt is their busy and thriving downtown area.
“This is not intended to be a religious debate or a discussion about people’s religious beliefs. It’s a purely technical hearing on the appropriate land use for a piece of property in the city of Kennesaw,” the mayor said.
Oh wait, that’s bullsh*t.
At a public hearing last month that had no limits imposed on discussing religion, Kennesaw residents shared things like this: “I am first a Christian and then an American citizen,” resident Jo Talley said. “As a Christian I am to put no other God before my Lord, and I am also to love my neighbor. If you know me, then you know that I do my best to do those things… but I also have the right to protect myself. This project has to do with Sharia law.”
“You know, if Christianity were killing people, I’m pretty sure I would have a problem with it,” Pastor C.S. Clarke of the Redeemed Christian Fellowship Church added.
Ashley Haspel, who owns a beauty salon, said she is concerned people attending the mosque would use too many parking places, leaving no room for her customers. “A worship center has no place being in a retail center… It would hurt our business not having the parking for our customers.”
According to the application for the mosque, the daily prayer services would likely be attended by 10-20 people and the weekly prayer service 60-80 people. There are already 127 parking space, which would increase to 167 if the mosque is approved.
Resident Anthony Bonner said the debate was “bigger than just zoning and parking. This is bigger than right and wrong. This is not a religious debate. This is about a comment on the value and the merits of a community.”
A commenter added “Islam is a discriminatory religion so it is quite ironic to hear all the supporters of the mosque crying about discrimination.”
Here’s one: “Should we accommodate a religion aiming to convert or kill the infidel, including the citizens of the United States? Islam is NOT a peaceful religion based on love. Should we aid the enemy?”
An upstanding citizen stated “The scumbag lawyer for the terrorist organization says he will sue… good luck with that.”
Another says on video “A retail space is not appropriate to a house of worship,” though by some odd quirk, the city allowed a Pentecostal church to rent a retail space for exactly the same purpose in July.
As some readers may know, I am former employee of the Department of State, and after publishing a book critical of State’s efforts in the previous Iraq War We Meant Well, I was subjected to a year of legal battles, including threat of prosecution.
But standing up for your rights is a part of having those rights. A free society is based on a marketplace of ideas, that free speech thing we all learned about in civics class. We all need to hear from all sides to become the “informed citizenry” that Thomas Jefferson said was so essential to a democracy. And who better to enlighten the public about how their government really works than former federal employees, the people who were on the inside, now private citizens?
It would be wrong then for a former employer, as codified into its agency regulations, to expect its retirees to “refrain from engaging in activities of any kind, including writing manuscripts or giving speeches, which would be prejudicial to the foreign policy interests of the United States.” But that is exactly what the U.S. Department of State does.
They even wrote it down, stating (emphasis added):
Former employees are expected to refrain from engaging in activities of any kind, including writing manuscripts or giving speeches, which would be prejudicial to the foreign policy interests of the United States.
Former employees are encouraged to make public appearances and write manuscripts for unofficial publication which constructively contribute to the interests and objectives of the Department of State and the Government.
So let’s get this straight. Private citizens, who happened to once work for the State Department in some capacity, perhaps not even one directly connected to policy issues, are expected to not say anything in a public forum against the interests of the United States? And they are encouraged to say things that contribute to the objectives of the Department of State? Just ’cause?
Though this all smacks of some sort of Orwellian attempt to coerce, er, expect, a class of private citizens to propagandize, um, engage in activities, that use their authority and reputation as former State Department employee to promote only the side of a discussion that supports the government’s position, I’ll play along. I have to right, as a Good Citizen?
But I think the problem will be in how the State Department and I might differ on just what the “interests and objectives of the Department of State and the Government” are that I am told because I once worked there I must support.
But let’s start with something we can agree on. The State Department’s Mission Statement says in part that the agency should seek to “Shape and sustain a… democratic world.” I agree.
But I disagree that admonishments to spew the government line as a private citizen, as State wants, contribute to that goal. Instead, I believe that exercising my First Amendment rights as a private citizen contribute much to democracy. Any exercise of rights strengthens a democracy, the same as any attacks on those rights diminish it. Bleating out the party line is for countries ruled by parties. Did you know that North Korea’s interests and objectives include claiming Kim Il Sung invented the television? I guess their former employees are encouraged and expected to write nice things in comments on YouTube and stuff about that.
Welcome to another episode of Post-Constitutional America, where the old rules do not apply. See something, say something, unless you used to work for the State Department and what you say does not agree with the government’s version of things.
But oh! Some feel that is too much, too dramatic. Fair enough. The whole problem is not that State can ever enforce these rules– they can’t– it is that they exist as a testament to how they think. It’s that whole idea of “loyalty” above all else, and of course the hypocrisy of saying how important dissent is while trying very hard to stifle it. At the end of the day such things erode employees. So many just kind of give up and stop caring too much about what they do and just glide through the motions.
BONUS: The same section of regulation quoted above also says “The State Department will be glad to furnish, upon request, advice, assistance, and copies of printed publications to former employees who wish to obtain information on particular subjects.” Or not. I have asked State for comment and “advice” on these regulations and have not received any response.
FYI: State has not contacted me personally about anything I have written. This article is based on State’s regulations. Whether currently enforced in some way or not, their existence is reason enough to call out.
You see, Ray just beat down, in court, Hillary Clinton, the State Department, and a small part of Post-Constitutional America.
Who is this Guy?
McGovern is a changed man. He started out in the Army, then he worked for the CIA from the Kennedy administration up through the first Bush presidency, preparing the president’s daily intel brief. He was a hell of a spy. McGovern began to see the evil of much of the government’s work, and has since become an outspoken critic of the intelligence world and an advocate for free speech. He speaks on behalf of people like Julian Assange, Chelsea Manning and Edward Snowden.
Ray McGovern was put on the State Department’s Diplomatic Security BOLO list– Be On the Look Out– one of a series of proliferating government watch lists. What McGovern did to end up on Diplomatic Security’s dangerous persons list and how he got off the list are a tale of our era, Post-Constitutional America.
Offending the Queen
Ray’s offense was to turn his back on Hillary Clinton, literally.
In 2011, at George Washington University during a public event where Clinton was speaking, McGovern stood up and turned his back to the stage. He did not say a word, or otherwise disrupt anything. University cops grabbed McGovern in a headlock and by his arms and dragged him out of the auditorium by force, their actions directed from the side by a man whose name is redacted from public records. Photos (above) of the then-71 year old McGovern taken at the time of his arrest show the multiple bruises and contusions he suffered while being arrested. He was secured to a metal chair with two sets of handcuffs. McGovern was at first refused medical care for the bleeding caused by the handcuffs. It is easy to invoke the words thug, bully, goon.
The charges of disorderly conduct were dropped, McGovern was released and it was determined that he committed no crime.
But because he had spoken back to power, State’s Diplomatic Security printed up an actual wanted poster citing McGovern’s “considerable amount of political activism” and “significant notoriety in the national media.” Diplomatic Security warned agents should USE CAUTION (their emphasis) when stopping McGovern and conducting the required “field interview.” The poster itself was classified as Sensitive but Unclassified (SBU), one of the multitude of pseudo-secret categories created following 9/11.
Violations of the First and Fourth Amendments by State
Subjects of BOLO alerts are considered potential threats to the Secretary of State. Their whereabouts are typically tracked to see if they will be in proximity of the Secretary. If Diplomatic Security sees one of the subjects nearby, they detain and question them. Other government agencies and local police are always notified. The alert is a standing directive that the subject be stopped and seized in the absence of reasonable suspicion or probable cause that he is committing an offense. Stop him for being him. These directives slash across the Fourth Amendment’s prohibitions against unwarranted search and seizure, as well as the First Amendment’s right to free speech, as the stops typically occur around protests.
You Don’t Mess with Ray
Ray McGovern is not the kind of guy to be stopped and frisked based State Department retaliation for exercising his First Amendment rights in Post-Constitution America. He sued, and won.
The Partnership for Civil Justice Fund took up the case pro bono on Ray’s behalf, suing the State Department. They first had to file a Freedom of Information Act demand to even get ahold of the internal State Department justifications for the BOLO, learning that despite all charges having been dropped against McGovern and despite having determined that he engaged in no criminal activity, the Department of State went on to open an investigation into McGovern, including his political beliefs, activities, statements and associations.
The investigative report noted “McGovern does seem to have the capacity to capture a national audience – it is possible his former career with the CIA has the potential to make him ‘attractive’ to the media.” It also cited McGovern’s “political activism, primarily anti-war.” The investigation ran nearly seven months, and resulted in the BOLO.
With the documents that so clearly crossed the First Amendment now in hand, the Partnership for Civil Justice Fund went to court. They sought, and won, an injunction against the State Department to stop the Be On the Look-Out alert against McGovern, and to force State to pro-actively advise other law enforcement agencies that it no longer stands.
McGovern’s constitutional rights lawsuit against George Washington University, where his arrest during the Clinton speech took place, and the officers who assaulted and arrested him, is ongoing.
Watch Lists in Post-Constitutional America
McGovern’s case has many touch points to the general state of affairs of post-9/11 government watchlists, such as No-Fly.
The first is that it is anonymous interests, within a vast array of government agencies, that put you on some list. You may not know what you did to be “nominated,” and you may not even know you are on a list until you are denied boarding or stopped and frisked at a public event. Placement on some watchlist is done without regard to– and often in overt conflict with– your Constitutional rights. Placement on a list rarely has anything to do with having committed any actual crime; it is based on the government’s supposition that you are a potential threat, that you may commit a crime despite there being no evidence that you are planning one.
Once you are on one watchlist, your name proliferates onto other lists. Getting access to the information you need to fight back is not easy, and typically requires legal help and a Freedom of Information Act struggle just to get the information you need to go forward. The government will fight your efforts, and require you to go through a lengthy and potentially expensive court battle.
We’ll address the irony that the government uses taxpaying citizens’ money to defend itself when it violates the Constitutional rights of taxpaying citizens another time.
Donating to The Partnership for Civil Justice Fund
Persons wishing to donate to The Partnership for Civil Justice Fund may do so online. I have no affiliation with the organization and do not benefit in any way from donations.
Full Discloure: I do know and respect Ray McGovern, and was once the subject of a State Department Be On the Lookout Alert myself, following these remarks I made about Hillarly Clinton. I have been unable to ascertain the status of my own BOLO alert but believe it is no longer in force. The State Department refuses to disclose any information to me about my status.
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.
We were warned we might become this way.
In the 1928 case of Olmsted v. The United States, at issue before the Supreme Court was whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the defendant’s rights under the Fourth and Fifth Amendments. In a 5-4 decision, the Court held that rights were not violated and the evidence obtained without a warrant could be used.
In his dissent, Justice Louis Brandeis wrote:
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law…
Like Father, Like Son
In an era where Big Government acts in open contempt of the rule of law, killing its own citizens without due process, torturing its people, recklessly spying on them and taking away their right to free speech, it is little surprise that Small Government seeks to do the same. Petty is what petty does. Much of this all manifests itself in the militarization of our police coupled with their criminalization of everything.
Militarization of the Police
There are too many examples of violence for even a short list: a defendant killed by police at his own trial; a lengthy and detailed report that found the Albuquerque, New Mexico Police Department engages in the practice of excessive force, including deadly force, in violation of the Fourth Amendment; a false-postive drug test leading to a SWAT assault on an innocent family; a baby burned into a coma by a flash-bang grenade thrown by another SWAT team in another unnecessasry home raid; a woman sexually assaulted by a cop in a courthouse who then arrested her for reporting it; LA sheriffs beating a chained inmate; cops choking a non-resisting drunk into unconsciousness; police blindsiding a woman with a nightstick at basketball celebration; police killing a 93 year old woman in her own home; cops tasering and beating a deaf man trying to communicate with them in sign lanaguage and on and on.
Criminalization of Everything
Concurrent with the increasing acts of unwarranted violence by police against the citizens they are sworn to protect and serve are attempts to criminalize as much behavior as possible, whether it represents any threat to society at large (long sentences for minor marijuana possession) or is simply an excuse to bust heads (not dispersing immediately equating to resisting arrest.)
But here’s how it has morphed into even more, an assault on First Amendment rights. And even though the cops lost in some of the following cases, the pattern is too clear to ignore, too dark to high-five over a win.
Cops in multiple states– cases have been tried in Maryland, Florida, Tennessee, Missouri and Oregon– have arrested drivers for flashing their headlights. It is not uncommon for drivers to flash their lights at incoming traffic to warn of a police speed trap ahead. The result of the flashing is that incoming drivers slow down, precisely the real point of the law. Cops, however, claim the flashing lights are an interference with law enforcement.
In the most recent case, in Oregon, a judge did find that motorists flashing their headlights amounts to speech protected by the First Amendment, similar to when people honk their horns to welcome home the troops. “The citation was clearly given to punish the Defendant for that expression,” the judge wrote. “The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct.”
Videotaping the Police
Reaching back to the 1992 Rodney King beating in Los Angeles, police have been caught on camera in a seemingly-endless-string of beatings. The typical pattern is that before the video is shown, the beaten person is accused of resisting arrest and the cops claim the violence they visited on him was unfortunate, but necessary and appropriate. Then the video comes to light and the brutality is revealed.
So it is little surprise that the cops have tried to criminalize videotaping the cops. Evil only works well in the dark after all. A recent case in New Hampshire, however, may help forestall the dark a bit.
A woman was following a friend’s car to his house when an officer pulled him over. From about 30 feet away, after getting out of her car, the woman announced she was going to audio-record the police stop of her friend. The cops arrested her and charged her with wiretapping, along with disobeying a police officer, obstructing a government official, and unlawful interception of oral communications. Though the woman was never prosecuted, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights.
An appeals court sent the case back to trial. The cops settled for $57,000 (using taxpayer money to pay off the suit; small change really. In 2012 Boston paid a citizen $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his felony arrest for videotaping police roughing up a suspect) before the case when to full trial, allowing for a minor victory albeit at the cost of not having a court declare war on the abuse of a citizen’s First Amendment rights.
Another woman was not so successful. She was charged with using a mobile phone “hidden” in her purse to audio-record her own arrest. The cops charged her with wiretapping under Massachusetts law, which says people may record police officers only in public places, and only if the officers are aware that a recording is taking place.
The ACLU asserts “since 9/11, a disturbing pattern of innocent individuals being harassed by the police for taking still and video photographs in public places has emerged across the country.” ACLU has a long list of specific cases.
The ACLU also notes “Another disturbing trend is police officers and prosecutors using wiretapping statutes in certain states (such as Florida, Illinois, Maryland, Massachusetts, New Jersey and Pennsylvania) to arrest and prosecute those who attempt to record police activities using videocameras that include audio.”
Again in Massachusetts, a woman who videotaped a cop beating a motorist with a flashlight posted the video online. Afterwards, one of the cops caught at the scene filed criminal wiretapping charges against her, though she was never prosecuted.
There are many, many more examples of the criminalization of the First Amendment. Even when charges don’t stick, the act of being arrested, possibly mistreated, often serves the cops’ purpose.
Fish rot from the head they say, and as Justice Louis Brandeis tried to warn us some 80 years ago. When the federal government claims itself exempt from the Constitution, don’t be surprised when your local cops say the same.
Here’s a bit of history from another America: The Bill of Rights was designed to protect the people from their government. If the First Amendment’s right to speak out publicly was the people’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now, in Post-Constitutional America.
The Fourth Amendment
A response to British King George’s excessive invasions of privacy in colonial America, the Fourth Amendment pulls no punches:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: Our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as “unreasonable” in our old constitutional world, but no more.
Here, then, are four ways that, in the name of American “security” and according to our government, the Fourth Amendment no longer really applies to our lives.
The Constitutional Borderline
Begin at America’s borders. Most people believe they are “in” the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.
Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the “border search.” The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally “reasonable” simply by virtue of where they take place. It’s a concept with a long history, enumerated by the First Congress in 1789.
Here’s the twist in the present era: The definition of “border” has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.
Those modest exceptions were all part of constitutional America. Today, once reasonable searches at the border have morphed into a vast “Constitution-free zone.” The “border” is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the U.S. population. In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitras — whose work focuses on national security issues in general and Edward Snowden in the particular — knows firsthand. Since 2006, almost every time Poitras has returned to the U.S., her plane has been met by government agents and her laptop and phone examined.
There are multiple similar high-profile cases (including those of a Wikileaks researcher and a Chelsea Manning supporter), but ordinary citizens are hardly exempt. Despite standing in an American airport, a pane of glass away from loved ones, you are not in the U.S. and have no Fourth Amendment rights. How many such airport searches are conducted in the aggregate is unknown. The best information we have comes from a FOIA request by the ACLU. It revealed that, in the 18-month period beginning in October 2008, more than 6,600 people, about half of them U.S. citizens, were subjected to electronic device searches at the border.
Still, reminding us that it’s possible to have a sense of humor on the road to hell, the CBP offers this undoubtedly inadvertent pun at its website: “It is not the intent of CBP to subject travelers to unwarranted scrutiny.” (emphasis added)
Making It All Constitutional In-House
Here’s another example of how definitions have been readjusted to serve the national security state’s overriding needs: The Department of Justice (DOJ) created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants.
Some background: A warrant is court permission to search and seize something. As the Fourth Amendment makes clear, it must be specific: enter Thomas Anderson’s home and look for hacked software. Warrants can only be issued on “probable cause.” The Supreme Court defined probable cause as requiring a high standard of proof, or to quote its words, “a fair probability that contraband or evidence of a crime will be found in a particular place.”
A subpoena on the other hand is nothing more than a government order issued to a citizen or organization to do something, most typically to produce a document. Standards for issuing a subpoena are flexible, as most executive agencies can issue them on their own without interaction with a court. In such cases, there is no independent oversight.
The Department of Justice now claims that, under the Fourth Amendment, it can simply subpoena an Internet company like Facebook and demand that they look for and turn over all the records they have on our Mr. Anderson. Their explanation: The DOJ isn’t doing the searching, just demanding that another organization do it. As far as its lawyers are concerned, in such a situation, no warrant is needed. In addition, the Department of Justice believes it has the authority to subpoena multiple records, maybe even all the records Facebook has. Records on you? Some group of people including you? Everyone? We don’t know, as sources of data like Facebook and Google are prohibited from disclosing much about the information they hand over to the NSA or other government outfits about you.
It’s easy enough to miss the gravity of this in-house interpretation when it comes to the Fourth Amendment. If the FBI today came to your home and demanded access to your emails, it would require a warrant obtained from a court after a show of probable cause to get them. If, however, the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message you’ve ever sent without a warrant and it won’t constitute a “search.” The DOJ has continued this practice even though in 2010 a federal appeals court ruled that bulk warrantless access to email violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act similarly makes it clear that the Bureau’s agents don’t need warrants to access email in bulk when it’s pulled directly from Google, Yahoo, Microsoft, or other service providers.
How far can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the inspector general of the Department of Veterans Affairs (VA) issued a subpoena — no court involved — demanding that the Project On Government Oversight (POGO) turn over all information it has collected relating to abuses and mismanagement at VA medical facilities. POGO is a private, non-profit group, dedicated to assisting whistleblowers. The VA subpoena demands access to records sent via an encrypted website to POGO under a promise of anonymity, many from current or former VA employees.
Rather than seek to break the encryption surreptitiously and illegally to expose the whistleblowers, the government has taken a simpler, if unconstitutional route, by simply demanding the names and reports. POGO has refused to comply, setting up a legal confrontation. In the meantime, consider it just another sign of the direction the government is heading when it comes to the Fourth Amendment.
Technology and the Fourth Amendment
Some observers suggest that there is little new here. For example, the compiling of information on innocent Americans by J. Edgar Hoover’s low-tech FBI back in the 1960s has been well documented. Paper reports on activities, recordings of conversations, and photos of meetings and trysts, all secretly obtained, exposed the lives of civil rights leaders, popular musicians, and antiwar protesters. From 1956 to at least 1971, the government also wiretapped the calls and conversations of Americans under the Bureau’s counterintelligence program (COINTELPRO).
But those who look to such history of government illegality for a strange kind of nothing-new-under-the-sun reassurance have not grasped the impact of fast-developing technology. In scale, scope, and sheer efficiency, the systems now being employed inside the U.S. by the NSA and other intelligence agencies are something quite new and historically significant. Size matters.
To avoid such encroaching digitization would essentially mean withdrawing from society, not exactly an option for most Americans. More of life is now online — from banking to travel to social media. Where the NSA was once limited to traditional notions of communication — the written and spoken word — new possibilities for following you and intruding on your life in myriad ways are being created. The agency can, for instance, now collect images, photos, and video, and subject them to facial recognition technology that can increasingly put a name to a face. Such technology, employed today at casinos as well as in the secret world of the national security state, can pick out a face in a crowd and identify it, taking into account age, changes in facial hair, new glasses, hats, and the like.
An offshoot of facial recognition is the broader category of biometrics, the use of physical and biological traits unique to a person for identification. These can be anything from ordinary fingerprinting to cutting-edge DNA records and iris scans. (Biometrics is already big business and even has its own trade association in Washington.) One of the world’s largest known collections of biometric data is held by the Department of State. As of December 2009, its Consular Consolidated Database (CCD) contained more than 75 million photographs of Americans and foreigners and is growing at a rate of approximately 35,000 records per day. CCD also collects and stores indefinitely the fingerprints of all foreigners issued visas.
With ever more data available, the NSA and other agencies are creating ever more robust ways to store it. Such storage is cheap and bounteous, with few limits other than the availability of electricity and water to cool the electronics. Emerging tech will surely bypass many of the existing constraints to make holding more data longer even easier and cheaper. The old days of file cabinets, or later, clunky disk drives, are over in an era of mega-data storage warehouses.
The way data is aggregated is also changing fast. Where data was once kept in cabinets in separate offices, later in bureaucratically isolated, agency-by-agency digital islands, post-9/11 sharing mandates coupled with new technology have led to fusion databases. In these, information from such disparate sources as license plate readers, wiretaps, and records of library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can now be put into a single “file.”
Once you have the whole haystack, there’s still the problem of how to locate the needle. For this, emerging technologies grow ever more capable of analyzing Big Data. Some simple ones are even available to the public, like IBM’s Non-Obvious Relationship Awareness software (NORA). It can, for example, scan multiple databases, geolocation information, and social media friend lists and recognize relationships that may not be obvious at first glance. The software is fast and requires no human intervention. It runs 24/7/365/Forever.
Tools like NORA and its more sophisticated classified cousins are NSA’s solution to one of the last hurdles to knowing nearly everything: The need for human analysts to “connect the dots.” Skilled analysts take time to train, are prone to human error, and — given the quickly expanding supply of data — will always be in demand. Automated analysis also offers the NSA other advantages. Software doesn’t have a conscience and it can’t blow the whistle.
What does all this mean in terms of the Fourth Amendment? It’s simple: The technological and human factors that constrained the gathering and processing of data in the past are fast disappearing. Prior to these “advances,” even the most ill-intentioned government urges to intrude on and do away with the privacy of citizens were held in check by the possible. The techno-gloves are now off and the possible is increasingly whatever an official or bureaucrat wants to do. That means violations of the Fourth Amendment are held in check only by the goodwill of the government, which might have qualified as the ultimate nightmare of those who wrote the Constitution.
On this front, however, there are signs of hope that the Supreme Court may return to its check-and-balance role of the Constitutional era. One sign, directly addressing the Fourth Amendment, is this week’s unanimous decision that the police cannot search the contents of a cell phone without a warrant. (The court also recently issued a ruling determining that the procedures for challenging one’s inclusion on the government’s no-fly list are unconstitutional, another hopeful sign.)
Prior to the cell phone decision, law enforcement held that if someone was arrested for, say, a traffic violation, the police had the right to examine the full contents of his or her cell phone — call lists, photos, social media, contacts, whatever was on the device. Police traditionally have been able to search physical objects they find on an arrestee without a warrant on the grounds that such searches are for the protection of the officers.
In its new decision, however, the court acknowledged that cell phones represent far more than a “physical object.” The information they hold is a portrait of someone’s life like what’s in a closet at home or on a computer sitting on your desk. Searches of those locations almost always require a warrant.
Does this matter when talking about the NSA’s technological dragnet? Maybe. While the Supreme Court’s decision applies directly to street-level law enforcement, it does suggest an evolution within the court, a recognition of the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is now recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.
National Security Disclosures Under HIPPA
While the NSA’s electronic basket of violations of the Fourth Amendment were, pre-Snowden, meant to take place in utter secrecy, here’s a violation that sits in broad daylight: Since 2002, my doctor can disclose my medical records to the NSA without my permission or knowledge. So can yours.
Congress passed the Health Information Portability and Accountability Act (HIPPA) in 1996 “to assure that individuals’ health information is properly protected.” You likely signed a HIPPA agreement at your doctor’s office, granting access to your records. However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of those records for national security purposes. Specifically, the new version of this “privacy law” states: “We may also disclose your PHI [Personal Health Information] to authorized federal officials as necessary for national security and intelligence activities.” The text is embedded deep in your health care provider’s documentation. Look for it.
How does this work? We don’t know. Do the NSA or other agencies have ongoing access to the medical records of all Americans? Do they have to request specific ones? Do doctors have any choice in whose records to forward under what conditions? No one knows. My HMO, after much transferring of my calls, would ultimately only refer me back to the HIPPA text with a promise that they follow the law.
The Snowden revelations are often dismissed by people who wonder what they have to hide. (Who cares if the NSA sees my cute cat videos?) That’s why health care spying stands out. How much more invasive could it be than for your government to have unfettered access to such a potentially personal and private part of your life — something, by the way, that couldn’t have less to do with American “security” or combating terrorism.
Our health care providers, in direct confrontation with the Fourth Amendment, are now part of the metastasizing national security state. You’re right to be afraid, but for goodness sake, don’t discuss your fears with your doctor.
How the Unreasonable Becomes Reasonable
At this point, when it comes to national security matters, the Fourth Amendment has by any practical definition been done away with as a part of Post-Constitutional America. Whole books have been written just about Edward Snowden and more information about government spying regularly becomes available. We don’t lack for examples. Yet as the obviousness of what is being done becomes impossible to ignore and reassurances offered up by the president and others are shown to be lies, the government continues to spin the debate into false discussions about how to “balance” freedom versus security, to raise the specter of another 9/11 if spying is curtailed, and to fall back on that go-to “nothing to hide, nothing to fear” line.
In Post-Constitutional America, the old words that once defined our democracy are twisted in new ways, not discarded. Previously unreasonable searches become reasonable ones under new government interpretations of the Fourth Amendment. Traditional tools of law, like subpoenas and warrants, continue to exist even as they morph into monstrous new forms.
Americans are told (and often believe) that they retain rights they no longer have. Wait for the rhetoric that goes with the celebrations of our freedoms this July 4th. You won’t hear a lot about the NSA then, but you should. In pre-constitutional America the colonists knew that they were under the king’s thumb. In totalitarian states of the last century like the Soviet Union, people dealt with their lack of rights and privacy with grim humor and subtle protest. However, in America, ever exceptional, citizens passively watch their rights disappear in the service of dark ends, largely without protest and often while still celebrating a land that no longer exists.
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?