• Watchlists and the Fourth Amendment

    September 26, 2014 // 10 Comments »




    If you don’t know Ray McGovern yet, you probably should.

    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.




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    Government Watch Lists, Ray McGovern and Post-Constitutional America

    February 24, 2014 // 25 Comments »




    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.

    Post-Constitutional America

    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.



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    Whistleblowers Write Open Letter to Federal Employees after Snowden

    December 23, 2013 // 5 Comments »



    I know you’re out there, and this is for you.

    Somewhere there is a Federal government employee who has witnessed an act of government waste, fraud, malfeasance or mismanagement and is unsure what to do next. Several former whistleblowers have written a letter to you. I fully endorse what they say (see my additional thoughts here), and encourage you to take the hard, right choice over staying silent.

    We’re all depending on you.

    (This open letter originally appeared in the UK’s Guardian newspaper; links added)

    The Letter

    At least since the aftermath of September 2001, western governments and intelligence agencies have been hard at work expanding the scope of their own power, while eroding privacy, civil liberties and public control of policy. What used to be viewed as paranoid, Orwellian, tin-foil hat fantasies turned out post-Snowden, to be not even the whole story.

    What’s really remarkable is that we’ve been warned for years that these things were going on: wholesale surveillance of entire populations, militarization of the internet, the end of privacy. All is done in the name of “national security”, which has more or less become a chant to fence off debate and make sure governments aren’t held to account – that they can’t be held to account – because everything is being done in the dark. Secret laws, secret interpretations of secret laws by secret courts and no effective parliamentary oversight whatsoever.

    By and large the media have paid scant attention to this, even as more and more courageous, principled whistleblowers stepped forward. The unprecedented persecution of truth-tellers, initiated by the Bush administration and severely accelerated by the Obama administration, has been mostly ignored, while record numbers of well-meaning people are charged with serious felonies simply for letting their fellow citizens know what’s going on.

    It’s one of the bitter ironies of our time that while John Kiriakou (ex-CIA) is in prison for blowing the whistle on US torture, the torturers and their enablers walk free.

    Likewise WikiLeaks-source Chelsea (née Bradley) Manning was charged with – amongst other serious crimes – aiding the enemy (read: the public). Manning was sentenced to 35 years in prison while the people who planned the illegal and disastrous war on Iraq in 2003 are still treated as dignitaries.

    Numerous ex-NSA officials have come forward in the past decade, disclosing massive fraud, vast illegalities and abuse of power in said agency, including Thomas Drake, William Binney and Kirk Wiebe. The response was 100% persecution and 0% accountability by both the NSA and the rest of government. Blowing the whistle on powerful factions is not a fun thing to do, but despite the poor track record of western media, whistleblowing remains the last avenue for truth, balanced debate and upholding democracy – that fragile construct which Winston Churchill is quoted as calling “the worst form of government, except all the others”.

    Since the summer of 2013, the public has witnessed a shift in debate over these matters. The reason is that one courageous person: Edward Snowden. He not only blew the whistle on the litany of government abuses but made sure to supply an avalanche of supporting documents to a few trustworthy journalists. The echoes of his actions are still heard around the world – and there are still many revelations to come.

    For every Daniel Ellsberg, Drake, Binney, Katharine Gun, Manning or Snowden, there are thousands of civil servants who go by their daily job of spying on everybody and feeding cooked or even made-up information to the public and parliament, destroying everything we as a society pretend to care about.

    Some of them may feel favourable towards what they’re doing, but many of them are able to hear their inner Jiminy Cricket over the voices of their leaders and crooked politicians – and of the people whose intimate communication they’re tapping.

    Hidden away in offices of various government departments, intelligence agencies, police forces and armed forces are dozens and dozens of people who are very much upset by what our societies are turning into: at the very least, turnkey tyrannies.

    One of them is you.

    You’re thinking:

    ● Undermining democracy and eroding civil liberties isn’t put explicitly in your job contract.
    ● You grew up in a democratic society and want to keep it that way
    ● You were taught to respect ordinary people’s right to live a life in privacy
    ● You don’t really want a system of institutionalized strategic surveillance that would make the dreaded Stasi green with envy – do you?

    Still, why bother? What can one person do? Well, Edward Snowden just showed you what one person can do. He stands out as a whistleblower both because of the severity of the crimes and misconduct that he is divulging to the public – and the sheer amount of evidence he has presented us with so far – more is coming. But Snowden shouldn’t have to stand alone, and his revelations shouldn’t be the only ones.

    You can be part of the solution; provide trustworthy journalists – either from old media (like this newspaper) or from new media (such as WikiLeaks) with documents that prove what illegal, immoral, wasteful activities are going on where you work.

    There IS strength in numbers. You won’t be the first – nor the last – to follow your conscience and let us know what’s being done in our names. Truth is coming – it can’t be stopped. Crooked politicians will be held accountable. It’s in your hands to be on the right side of history and accelerate the process.

    Courage is contagious.

    Signed by:

    Peter Kofod, ex-Human Shield in Iraq (Denmark)
    Thomas Drake, whistleblower, former senior executive of the NSA (US)
    Daniel Ellsberg, whistleblower, former US military analyst (US)
    Katharine Gun, whistleblower, former GCHQ (UK)
    Jesselyn Radack, whistleblower, former Department of Justice (US)
    Ray McGovern, former senior CIA analyst (US)
    Coleen Rowley, whistleblower, former FBI agent (US)



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    They are playing on the lawn at being ghosts.

    August 5, 2012 // 2 Comments »

    I’m a big fan of historical irony, actually of the idea that history does indeed hold lessons for us. It is easy to get caught up in the excitement of the moment as a brand new war presents itself in the Gulf, or the glee the White House expresses when Syrian government officials get blown up by a suicide bomb. But as we rush into the next war with all the enthusiasm of a hot date, it is useful to look back over our shoulders.

    Let’s try Senator George McGovern, speaking as the McGovern–Hatfield Amendment, which required via funding cutoff a complete withdrawal of all American forces from Indochina by the end of 1970, failed:

    Every Senator in this chamber is partly responsible for sending 50,000 young Americans to an early grave. This chamber reeks of blood. Every Senator here is partly responsible for that human wreckage at Walter Reed and Bethesda Naval and all across our land – young men without legs, or arms, or genitals, or faces or hopes. There are not very many of these blasted and broken boys who think this war is a glorious adventure. Do not talk to them about bugging out, or national honor or courage. It does not take any courage at all for a congressman, or a senator, or a president to wrap himself in the flag and say we are staying in Vietnam, because it is not our blood that is being shed. But we are responsible for those young men and their lives and their hopes. And if we do not end this damnable war those young men will some day curse us for our pitiful willingness to let the Executive carry the burden that the Constitution places on us.


    So if you haven’t gotten it yet, I’ll do it for you. Here’s the Iraq version:

    Every Senator in this chamber is partly responsible for sending 4,486 young Americans to an early grave. This chamber reeks of blood. Every Senator here is partly responsible for that human wreckage at Walter Reed and Bethesda Naval and all across our land – young men without legs, or arms, or genitals, or faces or hopes. There are not very many of these blasted and broken boys who think this war is a glorious adventure. Do not talk to them about bugging out, or national honor or courage. It does not take any courage at all for a congressman, or a senator, or a president to wrap himself in the flag and say we are staying in Iraq, because it is not our blood that is being shed. But we are responsible for those young men and their lives and their hopes. And if we do not end this damnable war those young men will some day curse us for our pitiful willingness to let the Executive carry the burden that the Constitution places on us.


    And for Afghanistan, now America’s longest war:

    Every Senator in this chamber is partly responsible for sending 2.050 young Americans to an early grave. This chamber reeks of blood. Every Senator here is partly responsible for that human wreckage at Walter Reed and Bethesda Naval and all across our land – young men without legs, or arms, or genitals, or faces or hopes. There are not very many of these blasted and broken boys who think this war is a glorious adventure. Do not talk to them about bugging out, or national honor or courage. It does not take any courage at all for a congressman, or a senator, or a president to wrap himself in the flag and say we are staying in Afghanistan, because it is not our blood that is being shed. But we are responsible for those young men and their lives and their hopes. And if we do not end this damnable war those young men will some day curse us for our pitiful willingness to let the Executive carry the burden that the Constitution places on us.


    And a generic version for you to use as needed:

    Every Senator in this chamber is partly responsible for sending ????? young Americans to an early grave. This chamber reeks of blood. Every Senator here is partly responsible for that human wreckage at Walter Reed and Bethesda Naval and all across our land – young men without legs, or arms, or genitals, or faces or hopes. There are not very many of these blasted and broken boys who think this war is a glorious adventure. Do not talk to them about bugging out, or national honor or courage. It does not take any courage at all for a congressman, or a senator, or a president to wrap himself in the flag and say we are staying in ?????, because it is not our blood that is being shed. But we are responsible for those young men and their lives and their hopes. And if we do not end this damnable war those young men will some day curse us for our pitiful willingness to let the Executive carry the burden that the Constitution places on us.


    Bonus: The kids who will serve in our military into the “commitment” to Afghanistan that extends into 2024 are just starting elementary school now. They are playing on the lawn at being ghosts.



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