NYPD, Islamophobia, and Federal Law: Spying and Lying as an American Way of Life

Over the last few months, the Associated Press has released multiple reports that detail the infiltration of Muslim student groups, mosques, and community centers by the New York Police Department over the last few years. Police Commissioner Raymond Kelly has denied the surveillance and infiltration of Muslim communities in NY or elsewhere, but clearly he has been lying. As we see from the numerous AP reports have been released, the NYPD’s spying program ranged over multiple states and countries. The NYPD spied on Muslim communities in New Jersey, Pennsylvania, and Connecticut–in mosques, on mosques, community centers, student associations, grocery stores and in neighborhoods with large numbers of Muslim families and residents. We also know that the NYPD has infiltrated Muslim student groups at Yale, Penn, Rutgers, City College, among others. On Monday of this week, Yale’s president, Richard Levin, to his infinite credit, wrote a statement that condemned and disavowed any knowledge of the NYPD on Yale’s campus. I’m waiting for similar disavowals by the presidents of these other campuses (apparently there are several). Otherwise, their silence would leave me to wonder how eager they were to collaborate in helping the NYPD to spy on their students.

Democracy Now and Colorlines have both reported in detail about the outrage of such actions on the part of NYPD. As part of a pattern of explicitly Islamaphobic practices on the part of the NYPD, we also heard about the Third Jihad, a racist training film (funded by the Clarion Fund, the same organization that attracted Sheldon Adelson, a big supporter of Newt Gingrich’s campaign) that insisted that even “normal” Muslims had deep terrorist undersides. A clip of NYPD Commissioner Kelly was included in the film, although he disavowed participating in the film and insisted that the clip was taken from elsewhere. Later, it turns out, he lied again: in fact, he was interviewed for it 5 years ago. Until that lie was revealed, Kelly refused to disavow or apologize for his part in the film; yet now he finds it “objectionable. Another lie: Kelly also denied that film was part of NYPD orientation, despite the fact that it was shown to 1500 police officers.

The prevarications and Islamaphobic policies–and illegal and unconstitutional activities– on the part of the NYPD continue. AP has reported that in 2002, then CIA director George Tenet sent an ex-CIA officer, Lawrence Sanchez, to help coordinate the management of intelligence within the NYPD, violating its own practice of not crossing over into domestic spying. Sanchez, who left over one year ago, appears to have been replaced by an unnamed agent, still part of the CIA, who has helped to coordinate the various surveillance and infiltration activities. The CIA has vacillated between denying knowledge of the coordination between itself and the NYPD, and acknowledging it. Kelly and Mayor Michael Bloomberg defended the involvement of the NYPD in spying on local communities with Bloomberg insisting that the spying program was “legal.”  According to AP, “Kelly, the police commissioner, has vigorously defended the NYPD’s relationship with the CIA. Testifying before the City Council in October, Kelly said the collaboration was authorized under the 1981 presidential order, known as No. 12333.” This order, signed by President Reagan, authorized the coordination of various federal agencies, from the NSC, CIA, FBI, the Departments of State, Defense, Treasury, Energy, and numerous other federal agencies to engage in intelligence gathering and collaboration in the interests of national security.

Order 12333 is a fascinating document, not least because of the constraints around intelligence gathering that are articulated there: According to section 2. 4 of this order, the NYPD violates the constraints of the first paragraph, namely the prohibition from engaging in “electronic surveillance, unconsented physical search, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General.”

Here’s the clause itself:

Collection Techniques. Agencies within the Intelligence Community shall use the least intrusive collection techniques feasible within the United States or directed against United States persons abroad. Agencies are not authorized to use such techniques as electronic surveillance, unconsented physical search, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General. Such procedures shall protect constitutional and other legal rights and limit use of such information to lawful governmental purposes. These procedures shall not authorize:

(a) The CIA to engage in electronic surveillance within the United States except for the purpose of training, testing, or conducting countermeasures to hostile electronic surveillance;

(b) Unconsented physical searches in the United States by agencies other than the FBI, except for:

(1) Searches by counterintelligence elements of the military services directed against military personnel within the United States or abroad for intelligence purposes, when authorized by a military commander empowered to approve physical searches for law enforcement purposes, based upon a finding of probable cause to believe that such persons are acting as agents of foreign powers; and

(2) Searches by CIA of personal property of non-United States persons lawfully in its possession.

(c) Physical surveillance of a United States person in the United States by agencies other than the FBI, except for:

(1) Physical surveillance of present or former employees, present or former intelligence agency contractors or their present of former employees, or applicants for any such employment or contracting; and

(2) Physical surveillance of a military person employed by a nonintelligence element of a military service.

(d) Physical surveillance of a United States person abroad to collect foreign intelligence, except to obtain significant information that cannot reasonably be acquired by other means.

 

The story gets murkier. According to Order 12333, the CIA cannot loan equipment, knowledge or personnel without the explicit permission of CIA counsel. Apparently, in this case, the permission of that counsel, Scott Muller, was never given.  Moreover, the leeway to surveil intrusively is permitted to the CIA and FBI, not to the NYPD.  And yet, the NYPD was–is still?–engaged in most, if not, every single one of these techniques: from physical surveillance (e.g., through the presence of undercover police officers in mosques and on the street to collect license plate numbers), to monitoring devices (by mounting cameras on street corners across the street from mosques, ). The NYPD defends its ability to surveil by insisting that mounting cameras on street corners is “public” surveillance.

It appears that it is possible for the CIA to assist the NYPD in intelligent-gathering for the purposes of “for the purpose of protecting the employees, information, property and facilities of any agency within the Intelligence Community.”  Yet, given that Sec. 2.4 paragraph pertains first and foremost to the CIA as the chief intelligence gathering agency (which presumably places it above the NYPD in terms of jurisdiction), this clause requires the US Attorney General to be notified. I wonder whether the US Attorney General Eric Holder was informed of the activities of the NYPD. Holder appears to be reluctant to clarify his relationship to NYPD’s spying program.  Is it correct to assume that Holder approved of these activities? If he wasn’t consulted by the CIA or the NYPD, why not?

We know that Mayor Corey Booker has suddenly tried to distance himself from the scandal by insisting that he didn’t know the activities that the NYPD was engaged in. Still, he acknowledges that he was approached by the NYPD to engage in activities that involved policing communities in his own jurisdiction. And he gave them permission to enter and engage in extra-municipal activities that involved his own constituents. Nice.

Were other mayors and governors of NY, NJ, CT and PA informed? NJ Gov. Chris Christie has denied being approached (or atleast he doesn’t “recall” being approached). Were the Attorneys General? I haven’t read or heard any or disavowals from any of the following current or former Governors or Attorney Generals of NY, NJ, PA, or CT:

NY Attorneys General: Eric Schneiderman (current), Andrew Cuomo (current governor), or Eliot Spitzer

NJ Attorney General: Jeffrey Chiesa (current), Paula Dow or Anne Milgram

PA Attorneys General: Linda Kelly (current), William Ryan, or Tom Corbett (current governor)

CT Attorneys General: George Jepson (current) or Richard Blumenthal (or current Gov. Daniel Malloy)

Does this mean that they approved the presence of the NYPD in their states to infiltrate Muslim student associations, community centers, stores, mosques? Moreover, Section 2.6 of Order 12333 authorizes various Intelligence agencies to cooperate with law enforcement for the purposes of tracking “clandestine…or terrorist” activities by “foreign” elements. [By the way, here is the definition of the Intelligence Community. You will notice they’re all federal, and not municipal law enforcement agencies like the NYPD.] This clause says nothing about authorizing municipal law enforcement to engage in extra-state spying or tracking of civilians. Moreover, clause 2.12 insists that “[n]o agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order.”

NYPD then, was not only not authorized by this Order to participate in tracking activities, but it was also violating this order’s initial clause. Kelly’s defense appears to be either a prevarication or–at the very least–incorrect. Given his record of duplicitous behavior, I’m leaning toward the former. Section 2. 7 of the Order does say that funding sources or contracts for federal activities are not required to be revealed, which is certainly consistent with the AP’s revelation that taxpayer money was not used for this unique special project on the part of the NYPD. At least $1.6b came from the feds. I believe AP reported that other monies for the spying program came from an unnamed non-profit organization, whose name and funds will not be revealed–but I can’t find the source. The Daily Beast reports that the nonprofit Police Foundation abundantly funded Kelly’s program to send NYPD personnel overseas.As Judith Miller reports, “For several years, the foundation has helped finance most of the NYPD’s $1.5-million-a-year International Liaison Program, in which 11 NYPD detectives are embedded in police departments overseas to explore potential New York ramifications of terrorist activity abroad [it gets even better: American Airlines last year proudly announced that it would participate in the project of helping the NYPD surveil and monitor overseas activity by funding the airfare for detectives to places like “Tel Aviv, London, Amman, Singapore, Santo Domingo, Toronto, Montreal, Paris, Lyons and Madrid,” to carry out surveillance activities that the Police Fund happily underwrites].

Of course, spying is now part and parcel of American life: we saw this with the expansion of 2008 FISA, which approved warrantless wiretapping and surveillance, as well as with the recent passage of the NDAA, signed into law by POTUS on New Year’s Eve 2011. As we know, Wall Street has used millions of dollars–at least $150m— to create its own local spy network in downtown, with the help and cooperation of the NYPD as well. I wonder if NDAA will be applied retroactively to help exculpate the NYPD, AG Holder, Bloomberg and all the other charlatans involved in these egregious violations of human liberties and constitutional law.

It sounds like the NYPD Police Commissioner and a number of Mayors, Governors, and Attorney Generals need to be interrogated for their knowledge or involvement in these activities…and perhaps we need to get start calling for some firings, and at the very least, we need some regime changes in the US at the national, state, and municipal levels.

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Abdulmutallab, POTUS, and Al-Awlaki: NPR Stenographers and Post-Assassination Apologias

Yesterday, a US judge sentenced Umar Farouk Abdulmutallab to life in prison without parole for eight felony counts, including attempted murder and attempting to use a weapon of mass destruction. You will recall that on Christmas Day 2009, Nigerian-born Abdulmutallab boarded a Northwest Airlines flight  from Amsterdam to Detroit with an explosive device planted in his underwear. The bomb did not go off, though Abdulmutallab was burned in the effort.

Several interesting facts to note: First, Abdulmutallab, unlike Anwar Al-Awlaki, was not a US citizen. Second, Abdulmutallab received a US criminal trial, and by many accounts, seems to have been accorded due process: He was charged publicly; he was read his Miranda rights; and he was given a court-appointed lawyer, whom he dismissed. As Glenn Greenwald suggests, due process is possible when trying suspected terrorists. Third, the evidence on which Abdulmutallab was convicted was given by several witnesses who were on the plane (more evidence of due process). Fourth, Abdulmutallab has apparently admitted under questioning by the FBI, to have trained with Anwar Al-Awlaki and Al-Qaeda in Yemen. Fifth, we are not privy to the conditions under which the confession was obtained. Sixth, there are many statements by British newspapers, US officials, and Yemeni reporters that link Abdulmutallab to Al-awlaki, but we don’t have any official evidence.

NPR’s reportage of it was a remarkable act of breathless apologia. Dina Temple-Raston, who wrote a well-researched expose of the FBI’s attempt (in an act of unmitigated racist profiling) to infiltrate a group of Muslims after September 11, 2001, covered the sentencing. I used to appreciate her work in the early days after September 11, especially her sober and balanced attempt to consider how Muslims were being received in the American Political Arena. Temple-Raston and Melissa Block, pointed breathlessly to Abdulmutallab’s confession, given as testimony in his trial, that he had joined Anwar Al-Awlaki for several days of intense training in preparation for this event.

Here’s an excerpt from their exchange:

BLOCK: Dina, we heard you mention the American-born cleric Anwar al-Awlaki. Talk about his role in this plot.

 

TEMPLE-RASTON: Yes. Well, you remember Awlaki is that radical cleric who may be best known as a propagandist for al-Qaida’s arm in Yemen. He had this huge presence and a Facebook page and a lot of English-speaking followers. What we knew about Abdulmutallab was that he had said he was inspired by him. What is new are these details that came out in this court document that was supposed to help the judge make a decision about the sentencing. And that document revealed the extent of Awlaki’s role in the plot.

 

Abdulmutallab told investigators that he went to Yemen in search of Awlaki, and he wanted to martyr himself. And he eventually actually went to Awlaki’s house in the desert and trained with him for several days. And he said Awlaki connected him with an al-Qaida bomb maker who actually constructed the underwear bomb and even helped him make his martyrdom video.

 

BLOCK: Was Abdulmutallab basically saying that al-Awlaki was the mastermind, the instigator ordering this attack then?

 

TEMPLE-RASTON: Yes, essentially. And the reason why this is so important is because Awlaki was killed by a U.S. drone strike in Yemen late last year. And it was a very controversial strike because Awlaki was born in New Mexico. He’s an American. And the Obama administration said he was operational – was an operational threat. But they provided any (sic) evidence to back that up. The release of these details from the Abdulmutallab case are a start. And we’re expecting the attorney general, Eric Holder, to talk about the legal justification for killing Awlaki any time now.

 

I mean, we understand that there’s a speech being prepared to at least address the issue. And we don’t know when that speech is going to be given, but it seems that the details in this Abdulmutallab filing could be readying the ground for that. (my emphasis)

 

This confession, to hear Block and Temple-Raston, would confirm—no, prove—that President Obama was correct to have assassinated Al-Awlaki even though he gave no evidence for the killing. The two stenographers, as Glenn Greenwald has aptly described, seemed to concur that the confession would become post-facto proof that would vindicate the POTUS and the AG Eric Holder in their decision. They completely—forgot? ignored? the fact that Abdulmutallab’s confession had little to do with the initial controversy over Al-Awlaki’s murder—namely the absence of due process, the absence of any (let alone objective) evidence, the decision to kill an US Citizen by sending Navy Seals into another sovereign nation without permission. Abdulmutallab’s confession has little bearing on exculpating Obama’s use of the unilateral, autocratic, power in ordering the killing of Al-Awlaki as a US Citizen. The supposed confession seems to confirm some bizarre post-assassination fact to Block and Temple-Raston, along the lines of an  “I told you so”: “See, he (POTUS) was right to use arbitrary autocratic power!!” Indeed, it would appear that Temple-Raston and Block have given up nearly all critical skills, which I suppose is what is owed to become foremost stenographers on National Public Radio.

Jessica Ahlquist, Religious Banners, and the Hypocrisy of Christian Ideals

Updated Below:

Jessica Ahlquist, a teen from Cranston, Rhode Island, attends school with a police escort because she dared to challenge–legally and successfully–the presence of a religious banner hung in the gymnasium of Cranston High School West (CHSW). CHSW is, lest anyone be unaware, a public high school. However, a majority of the attendees and alums are Catholics. This is a remarkable story that exhibits the long-standing righteous principle of “Don’t confuse me with the facts,” that Republicans and righteous religious zealots have long stood by. The banner, which appeals to the “Heavenly Father,” violates a 1962 court decision, Engel v. Vitale, 370 U.S. 421 (1962) which ruled that school-mandated prayers were unconstitutional. The case launched by the ACLU on Ahlquists’s behalf, was based on several other landmark Supreme Court Cases as well, including a 1992 decision, Lee v. Weisman, 505 U.S. 577 (1992), that contested school prayer in another Rhode Island—yes, you read that correctly—another Rhode Island high school. Conservative Justice Anthony Kennedy wrote the majority opinion in that surprising decision that affirmed the unconstitutionality of the school’s decision to have a rabbi deliver a prayer at the high school graduation ceremony. One can’t help but wonder if Rick Santorum has been spiking the waters of Rhode Island.

Rhode Island’s ironic history, in which Roger Williams founded the original colony so as to establish a space for religious freedom after being kicked out of Massachusetts, is being appealed to by Jessica Ahlquist and many of her supporters. Roger Williams, a staunch detractor of forced religious belief, declared any attempt to compel one’s conscience to believe in God to be a violation and “a spiritual or soul-rape.” (Roger Williams and Edward Bean Underhill, The Bloudy Tenent for Cause of Conscience and Mr. Cotton’s Letter Examined and Answered, ch. 80) At several places in the 1644 text, Williams declared it to be more of a rape in fact “more abominable than God’s eyes than to force and ravish the bodies of all the women in the world.” (Williams and Underhill, The Bloudy Tenent , ch. 62). I don’t endorse Williams’ misogyny; and yet, I think it’s important to note his misogyny alongside the vehemence of his claim that compulsion of conscience is an ultimately heinous act. Notwithstanding the discordant note, the appeal to return to secular values in the public space is a long-standing staple of the Constitution.

The multiple ironies that strike me, however, stem from the sheer hostility & misogyny that Ahlquist’s request has engendered among her classmates, the denizens of Cranston, and right-wingers generally. One of CHSW’s recent graduates, Janine Hansen, now the head of the cheerleading squad suggested that Ahlquist “keep her opinions to herself.” Others suggested that the Ahlquist’s quest and the Court’s ruling violated their “freedom of religion.” Now, I realize that we are in a space where Republicans as well as Democrats and Constitutional lawyers (such as POTUS) are indifferent to the US Constitution, but apparently the “enlightened community” surrounding Ahlquist is unaware that “freedom of religion” is a principle that insists that the state has no business imposing upon private individuals’ abilities to practice their beliefs. Removing a Christian prayer from a public school (READ: the STATE) would be consistent with this principle. It doesn’t prevent people from praying if it is their wish to do so, but it prevents the state (READ: the CHSW) from inflicting the Christian prayer on any unwilling denizens (READ: atheists, Jews, Hindus, Buddhists, OR religious folks who nevertheless who abide by the separation between church and state, etc.).

Ahlquist is an amazing young woman. We need many more like her, fighting this fight bravely even as she is singled out and scapegoated, to remind us to resist the homogenizing effects of “popular opinion.” She has been sent email threats, isolated, made a target of Facebook bullying, and faced an overwhelming vitriol in the face of her attempts to get the public school to abide by the Constitution. A RI State Representative, Peter Palumbo cursed her as “an evil little thing.” Of course, my contempt for him–in the face of the overwhelming abuse of his authority to scapegoat a teenage student for political profit–knows no bounds.

Part of Ahlquist’s motivation to challenge the banner is that it made her, as an atheist, feel alienated. She admits that she’s been a bit confused by the hostility to her position. As she suggests, she’s “defending their constitution, too.” I’m not sure the ensuring furor has alleviated the alienation, but she’s in very good company if she still thinks that the Constitution might have some principles worth fighting for. Unfortunately, for liberals and progressives who have tried to challenge the retreat from the Constitution over the last decade, alienation has become an embraceable feature, one that assures us that we are on the right side.

On the other hand, maybe Ahlquist needs to reconsider her opposition to the banner, because apparently her classmates really need the prayer in their sightlines constantly in order to remember what it says:

SCHOOL PRAYER

OUR HEAVENLY FATHER, GRANT US EACH DAY THE DESIRE TO DO OUR BEST, TO GROW MENTALLY AND MORALLY AS WELL AS PHYSICALLY, TO BE KIND AND HELPFUL TO OUR CLASSMATES AND TEACHERS, TO BE HONEST WITH OURSELVES AS WELL AS WITH OTHERS, HELP US TO BE GOOD SPORTS AND SMILE WHEN WE LOSE AS WELL AS WHEN WE WIN, TEACH US THE VALUE OF TRUE FRIENDSHIP, HELP US ALWAYS TO CONDUCT OURSELVES SO AS TO BRING CREDIT TO CRANSTON HIGH SCHOOL WEST. AMEN

The bullying tendencies of unthinking follow-the-crowd zealots is a bit like the insipid network news monitors in airports: in abundance, unceasing, without obstacle to disrupt its homogeneity and banality of thought. So, the principles of fundamentalist Christian love are to be withheld in the face of a dissenter, and even better, the principles of the US Constitution will be deliberately misread to show the victimhood of the believers: Freedom of speech is disrupted by removing a religious banner from the a public high school. Perhaps they have a lot more in common with POTUS than they ever imagined: Both love to twist the Constitution around for strategic self-interested endgoals.

Update:

The CHSW School Board met on Feb. 15 to determine whether or not to appeal the Federal District Court’s ruling. It looks like the decision was controversial, but ultimately, they decided not to appeal the ruling, so the banner will be permanently removed. The decision to appeal would have cost them an additional $500,000. As it is, Ahlquist’s lawyers are asking the School Board to pay $173,000 in legal fees.

A Moment to Love Strangers

Following one train of leftster fashion, I typically don’t acknowledge Valentine’s Day, at least not publicly. But this morning’s show of Democracy Now, which featured a series of stories from StoryCorps Oral History Project, left me deeply touched. I was a bit surprised at my own reaction, as I heard stories from couples, one half of whom had passed since their recording their love story, or from a woman recounting her last conversation with her husband. He called her on September 11, 2001 from the 105^th floor of the World Trade Center as he sat trapped and waiting to be co­­­nsumed by smoke. They spent his last half-hour by talking about the happiest moments of their life together. She died in a plane crash 8 years later, as she flew to Buffalo, NY, to celebrate his birthday with his family.

I was moved by the abundance of love and joy that these storytellers expressed in the moment.  As much, though, I was moved that Amy Goodman and her production team had offered such a gorgeous, uncensored show that celebrated so many varieties of love and affection and joy. In a way it spoke to a question that had been on my mind since Saturday’s news of Whitney Houston’s sudden death. On Facebook, there were so many expressions of sorrow and mourning of someone whose amazing talent would be deeply missed. And yet, while I am saddened, I find it difficult to mourn her or any of the other celebrities who have passed during my conscious lifetime.  I will freely concede that it might be because I’m emotionally stunted.  Still, it’s also because I find it difficult to mourn public figures whom I don’t know or don’t feel connected. I will also admit that I was very saddened by the loss of Keith Aoki, one of the world’s premiere Critical Race Theory legal scholars—but then again, I had spent some time with him years back, and his deeply generous spirit and our conversations had made a deep impression on me.

A friend with whom I discussed the phenomenon of public collective electronic mourning for Houston shared an answer offered by one of his students.  She suggested that it was an occasion for us to emerge from our general numbness in the current world. I’m not sure what that “world” meant for that student, but I might imagine it was a world of dominating electronic communications, networking, and of the general vitriol and visceral responses that form public discourse about current events. I suppose it is a moment in which strangers and remote—FB—friends can come together to share in a collective grief that reminds us of our humanity.  Perhaps.

Even though I find it difficult to mourn Houston, I have found joy and solace in her voice—and perhaps it is this that others call mourning: the loss of optimism, of the certainty that she will ever sing again, the loss of her talents.  Yet, I am able to mourn the loss of millions of people that I have never met. If it is true that one can love and grieve others when one finds connection to them, then I wonder what connection I feel to the millions who’ve died untimely, unjust deaths. Perhaps it is that I grieve that they will never wake to follow through on their desires for their own lives, or for their familes. Perhaps it is that I believe that my own good life, my own good fortune, is just that–a coincident, a twist of fate that I am here, flourishing and unharmed rather than part of a population who is at the mercy of an American imperial state.  I wonder what it requires to prompt a love of peoples that one doesn’t know. Is it too abstract to grieve the lives of children and women and men who live 10,000 miles away? Is it strange to love and mourn children who will never be able to grow up and lead lives far away from war?

As I write these words, I think of the story from this morning’s show about a woman who has come to love the man who murdered her son. She forgave him, and now loves that same man as her son. I must admit that their story, as moving as it is, is a difficult one for me. But from it, I am compelled by the kernel that love is intimately connected to forgiveness. As I think about the different stories that I heard this morning, I find another truth.  As always in my thinking, this truth comes rather late in the game: grief is intimately connected to love; in order to grieve someone, one must have loved that someone as well. Is it too much to love someone that one has never met, let alone known to any degree?  I suppose this is one facet of the work (yes, work) of loving the (abstract) Other that philosophers have considered for millennia, from (take your pick) Plato, Aristotle, Augustine, Rousseau, Arendt, Beauvoir, Dr. King, and so many others.  May I  ask that we spend a minute today–on a day that memorializes love and care (regardless of the Hallmarkiness of it all)–trying to find a way to love the innocents (and perhaps some of the guilty) who have died? Can we find a way to love those who have died at the hands of strangers, lovers, spouses, parents—and yes, even due to an imperial state–in order to be able to grieve them as well? As well, I wonder if it is possible to spend a long moment today loving those who are alive and struggling for their freedom in Syria and Bahrain and Libya and Egypt and Palestine and elsewhere, on other continents, and in other states, and in nearby cities?  It may be a ridiculous sentiment, but somehow, it gives me joy to think about loving utter strangers—children, women, and men whom I may never meet and yet who may in fact be amazing heroes and loving parents and bubbling people in their own right.

Happy Valentine’s Day, folks. May you find joy in loving someone you don’t know.

Why Even Good Law-Abiding People Should Care About Privacy

Coffee Customers at Mardi Gras

Since my post on Homophobic Harassment and Surveillance, I’ve been ruminating some more on the issues of surveillance and privacy.  The conversation about the importance (or lack thereof) of privacy was renewed for a lot of folks last December. That was when the news came to light that the US Congress banded together symphonically to approve the National Defense Authorization Act (NDAA).  Although ostensibly about indefinite detention, the NDAA raised concerns about the increasing encroachment over the privacy rights of US citizens and the increase of pre-emptive and warrantless surveillance. In the public debate, there have been two distinct responses. Response 1 comes from the righteous civil righters (RCRs), which amounts to, “How dare they take away my privacy!” Response 2 came from morally upstanding citizens (MUCs): “Well, if you haven’t done anything wrong, you have nothing to worry about.”

Both of those responses seem a bit mysterious to me.  Why should we care about a “right to privacy?” After all, aren’t the MUC’s right?  If you don’t do anything wrong, there’s no reasons to worry about it. And yet…I think there is be more to it than that.  There are plenty of things we do that are legal or that happen to us…that are not things that we might want to share with everyone: having an abortion or gender re-assignment surgery; a teacher’s past life as a dancer in a stripclub; premarital affair with a TeaPartyer; a secret affinity for hot-dog eating contests when you’re the head of a major Weight Loss Organization; or used drugs recreationally during one’s more carefree days before ascending up the ladder to become the policy director at the World Health Organization (This is made-up. Promise).  These are things that aren’t necessarily to be ashamed of; there’s context, there’s moral complexity, there’s a story. But we all have sides of ourselves that we don’t care to explain to others for any number of reasons.  And as we know, when these stories come out, they cause embarrassment or shed a negative light on the person at the center of the story. In other words, when our secrets are broken by someone other than ourselves, there’s a good chance that those leaks will cast aspersions on our character, causing us to lose face, or to prevent us from moving on with our lives or toward our goals. That’s the point of leaking secrets, after all, isn’t it?

How many stories have we heard about teachers losing their jobs because they—umm—shared much more of their trip to New Orleans during Mardi Gras on Facebook than the School Superintendent thought was proper? Newly minted college-graduates not getting called back after an ace interview—because the employer discovered his credit scores were low (due to tragic circumstances rather than irresponsibility—which the employer never learned of)?

But this isn’t about wrongdoing. It’s about growing up, making (bad) judgments, moving on, and remaking yourself. That was part of the point of “going West”: you could shed your past, former associates, bad habits, bad decisions by moving on and starting over. These are some reasons that privacy is so important. But in a world where all of our movements are tracked, our ability to hold on to our humanity erodes to be replaced by fear and self-censorship.

Leaking secrets about an individual in private life is different from leaking secrets about wrongdoings that public institutions have been guilty of: like the case of the US wrongdoing as leaked by Pvt. Bradley Manning or Julian Assange or CIA agent John Kiriakou. Or most recently, by Spanish judge Balthazar Garzon, whose illustrious crime-fighting record was shut down by the Spanish Supreme Court. In all of these instances, the secrets that were leaked show the lack of accountability by the state or some of its officers.  Lone citizens aren’t held to that same standard. Public officers, once upon a time, were supposed to abide by a set of ethics and to have their actions be transparent while individuals could engage in all kinds of activities–respectable or not– in the privacy of their homes without being called out.  Instead, we’re at a place where the actions of individuals are supposed to be transparent while the dubious decisions and unethical acts of public officers—from the US military, to the POTUS, are systemically hidden from view.

After all, this is what it means to have a GPS tracking device in your car—and to make it illegal to remove it.  But POTUS can authorize the killing of a US citizen without being required to provide proof of cause, and he’s hailed as a hero.

While the US Constitution doesn’t have an explicit right to privacy, the Supreme Court has, in groundbreaking cases like Roe v. Wade, interpreted that right to exist through a “penumbra” of other rights as listed in Amendments 1, 4, 5, 9, and 14 (see section V). The Universal Declaration of Human Rights considers privacy a fundamental human right (see Article 12). It’s considered fundamental to human dignity. Why might that be?  In part, it might be because there’s a realm in which you should be able to conduct your life, as controversial as certain practices might be (like having pre-emptive mastectomies to avoid breast cancer) or as intimate as having sex with one’s lover–without having to fear someone else’s judgment AND without having to fear that surveillance will be used to punish you. Now, note here that I’m NOT talking about acts that are harmful or destructive: pedophilia, abuse, violence—these are all acts that harm others, often those who don’t have the defenses to remove themselves from harm. But these are acts are committed by relatively few compared to the enormous number of us who are being surveilled now.

We need to have a fundamental right to privacy because it enables us to make decisions in our lives that enable us to feel human rather than like automatons behaving the way others/states/institutions want us to behave. Being human consists fundamentally of making decisions within the constraints of the lives into which we are born (for example, I can’t become an Air Force pilot if I have bad eyesight). But those constraints shouldn’t be imposed and calculated and created by private insurance companies who decide whether to cover you based on the propensity of cancer or mental illness in your family, or private schools that demand a parent’s driver’s license information on a permission slip for her kid’s field trip (this is NOT made up. Promise), or FBI decisions to stalk you because you go to mosque for your religious reflection.

The ability to make love, medical decisions, lifestyle choices, or bad decisions, to take risks, to find spiritual solace—these are acts that firmly anchor our dignity, and that is why they deserve to be private decisions, free of surveillance.   Just because the MaMa Pajama or the PaPa don’t like it, don’t make it bad…

Kris Kobach’s War on Muslims and Latinos

Updated below:

Those who have known me for the last decade have heard me insist ad nauseam that the war against undocumented migrants is tightly linked to the war on Muslims as terrorists—and that to fight one effectively, you have to find the parallels and fight both. While writing my post on Homophobic Harassment, Self-Deportation, and Surveillance, I discovered the missing link: Kris Kobach, currently the Secretary of State of Kansas. His bio lists an appointment as a law professor at University of Missouri-Kansas City (UMKC) Law School, but he is not listed on the roster there; it would appear that he is on leave.  Kobach, who eerily enough resembles Aaron Eckhardt (the meanie in In the Company of Men), went to Harvard for his undergraduate degree, Oxford for an MA, and Yale for his JD.  Kobach first came to power as an attorney during the Bush Administration, under the aegis of Attorney General John Ashcroft.  At that time, he engineered the National Security-Entry-Exit-Registration-System (NSEERS), the Special Registration Act that, in 2002 rounded up over 82,000 Muslim men and issued deportation orders against over 13,000 (Also see the AALDEF Special Reg Report). NSEERS was finally suspended last year in May 2011, but it managed to do some serious violence in the intervening decade by facilitating the extended incarceration (without cause) of thousands of innocent Muslim men.

According to his interview with Reporter Jack Hitt on This American Life (#456, Reap What You Sow), he figured out that some 5 of the 19 hijackers on September 11, 2001 were in the US “illegally,” and of those, four had traffic violations, but their immigration status had never been checked.  This led to his idea that domestic identity databases needed to be cross-checked with federal/immigration databases.  NSEERS has its precedent in a number of interesting older internment and profiling laws: President Franklin Roosevelt’s Executive Order 9066, which enabled the Feds to round up and incarcerate some tens of thousands of citizens and migrants of Japanese descent after the December 7, 1941 attack at Pearl Harbor. There were also other precedents that made NSEERS possible, such as the Palmer Raids of the 1919-20’s, which targeted suspected anarchists.

Energized by that success, Kobach became the chief legal strategist for Immigration Reform Legal Institute (IRLI) which is the legal branch of Federation for American Immigration Reform (FAIR). FAIR, founded by John Tanton, is one of the foremost anti-immigrant foundations in the US. There Kobach turned his efforts to figuring out how to engineer a number of some of the most devastating (note: I didn’t say “effective”) anti-immigration laws in Pennsylvania, Texas, Missouri, Arizona, and Alabama.  Those bills were ineffective, in part because they were constantly and effectively challenged in the courts. But they also didn’t solve the unemployment or crime problems that were attributed to undocumented migrants.

Kobach’s career is predicated on the creation of destructive obstacles for brown folks—especially for MEMSA’s** and Latinos—regardless of citizenship. Just goes to show you that an overpriced, elite education and a charming spiel does not a more moral person make.  In effect, his answer to the solution of preventing terrorism was to legalize and systematize racial profiling. There are two important ideas embedded in the Arizona and Alabama ant-immigration laws among others: 1. Make it legal to stop anyone at any point, regardless of a whether or not some violation is being committed, to check on the legality of their presence. By extension, 2. require that migration or citizenship papers be carried on one’s person at all times.  Judging from this editorial that he wrote, he’s also figured out how to pre-empt the DREAM Act. He doesn’t mention it in the letter, but he has figured out that any proposal to enable undocumented migrants to pay less for college tuition will, chances are, fast-track their ability to become legal through the DREAM Act, were it to pass one day.

Kobach has figured out how to write legislation that enables a wide-ranging institutional surveillance. He helped the Mayor of Hazelton, PA write legislation that would fine the landlords and employers of undocumented migrants.  The idea behind these ordinances, like that of NSEERS, is to establish that every “foreigner” (read: neither white nor black) must be codified into a taxonomy of membership (citizens, legal resident, H1-B worker, tourist, etc.): Who are you, where do you fit in, what do your papers say, and should we read you as an acceptable interloper (do you have proper papers) or hostile (lack of papers is a criminal offense; therefore you must criminal or terrorist intent).  It is in many ways, a beautifully engineered binary system: Papers = friendly/no papers = criminal. There is no space in this system for multiple contexts or complexity.

You enrolled in university on a student visa, wanted to stay, fell in love, overstayed visa, had children, and now your life is here with your citizen partner and children. Or:  After the World Bank’s loan repayment policies required your home country to decimate its own economy and/or social safety net, your town was economically devastated, and you migrated to try your hand at earning money in jobs that “Americans” (with papers) would never want, in order to help your extended family survive.

Americans, as I’m sure Kris Kobach—a mid-westerner with Ivy League degrees who likes to go turkey-shooting while writing anti-immigrant legislation—will agree, are more complex than computers. Is it so difficult to believe that foreign nationals and migrants have complex narratives as well? Go read some Isabel Allende, Amitav Ghosh, Edwidge Danticat, Junot Diaz, Julia Alvarez, and they’ll set you straight.

As importantly, this form of surveillance is highly inefficient. Go back to the numbers of hijackers who had both a) illegal immigrant status (five) and b) traffic violations (four). Out of 19. That means the other 14 had papers and NO traffic violations. They were inconspicuous. But as importantly, of the hundreds of thousands of Muslims residing in the United States, and of the 82,000 Muslim men arbitrarily imprisoned under NSEERS, not a single person was shown to have committed a terrorist act.

Here’s the other thing: In Alabama, where HB 56 has taken effect, fewer than 4% of the residents are migrants.  In places like Tuscaloosa, where there was a high profile arrest of a German car executive, Detlev Hagar, who was stopped for a traffic violation. Oops. Steven Anderson, the Tuscaloosa Police Chief freely admits that “Hispanics”—migrants–are not the cause of crime. And Alabamians aren’t thrilled with the law either.

So, tracking undocumented migrants for the purposes of enhancing the safety of legal residents—that’s really not what immigration surveillance is about, now, is it?  Rather, the goal of immigration legislation is to move from a space in which we assume that our neighbors are varied and diverse to one where all “newcomers,” “outsiders,” “visually distinctive,” are assumed to be suspicious, dangerous, or otherwise nefarious. And most importantly, the goal of HB 56 and NSEERS, is to legalize racism under the rule of law, and to pave the way for cementing the whiteness of the Homeland.

The War on Terror is intimately linked to the War on Migrants. These are, for folks like Kris Kobach, Mitt Romney, and Rick Santorum—part of the same war. For folks like the current POTUS, under whose administration, nearly 1.2 million migrants have been deported—Muslims and Latinos are part and parcel of the same threat to the Homeland: Brown, unwanted unwelcome. If Kris Kobach is cementing the links between NSEERS and Alabama’s HB 56, Arizona’s SB 1070, and similar laws, isn’t it time for liberals and progressives activists to challenge these together?

**(MEMSA): Muslim, Middle Eastern and South Asian

_________________________________

UPDATE

I should have mentioned that Kobach is an unpaid advisor to MItt Romney, and is responsible for the “self-deportation” concept that Romney endorses. Also, Kobach worked with Samuel Huntington at Harvard. Huntington, you will recall, was a notorious xenophobe and detractor of migration. Among his books, Huntington wrote the infamous Clash of Civilizations and the Remaking of World Order, which was a harbinger? a prescription? for the War on Muslims. Huntington also wrote “Who Are We,” which was a harbinger of the War on Latinos. Here is a summary of the article-length version of the first book (you can find the entire article as a pdf if you google it), and an article-length version of the second book, entitled, “The Hispanic Challenge.” Both the book and the article are self-contradictory and virulently racist. Kobach, as Huntington’s model protege,  produced a thesis on South African apartheid in which he argued against divestment but rather “engagement” as the way to combat apartheid. That thesis apparently won a Harvard prize for best thesis in 1989, and was later published as a book.

Diversity v. Racial Justice

I found this clip of an interview for a film that some Hampshire students were making on race and affirmative action. It’s about 5 minutes long, with some blank spots of a few seconds each in between. I ruminate a bit on how deceptive the term “diversity” is, and some of the features that racial justice entails, especially in an educational setting. I’m a bit blunt at various points, but hopefully this will illustrate some of the differences between me and a “Ron Paul” supporter (which I’ve been mistaken as, simply because I want the conversation about the racial injustices of the War on Terror to be addressed during this 2012 election year).

Homophobic Harassment, Self-Deportation, and Surveillance

The New Yorker ran a thoughtful piece by Ian Parker on the suicide of Tyler Clementi, a gay Rutgers University freshman who committed suicide in the fall of 2010, sometime after he discovered that his roommate, Dharun Ravi, had used a webcam to spy, and invite a public-spy-in, on Clementi’s encounter with a male-lover in their shared dorm-room.  The article, relying on electronic records from emails to tweets, suggests that there may be an ambiguous link between Ravi’s spying and Tyler’s suicide.  It is not clear that the spy-in happened, nor how disturbed Tyler was over the news that he was being spied on, but it was clear that he was aware that his roommate spied on him, however briefly.

Ravi stands on trial for, among other things, invasion of privacy (sex crime) and bias intimidation (hate crime). Regardless of whether Ravi’s actions can be closely traced to Clementi’s suicide, Ravi is—even if his own accounts are to be believed—still culpable for harassment and extreme violation of his roommate’s privacy.

Clementi, who had come out as gay to his parents only three days before he began at Rutgers, doesn’t reveal–in his electronic records–a level of emotional devastation  that might be consistent with his decision to commit suicide. But I can’t help but wonder about the psychic devastation that Clementi felt upon discovering that his intimate relationship was subject to surveillance, public spectators, and public mocking.

A few days ago, I was listening to a story on This American Life (#456, Reap What You Sow) about the concerted campaign to induce undocumented migrants across the country, but especially in Alabama, to self-deport. Reporter Jack Hitt discussed the strategies of Secretary of State of Kansas, Kris Koback, to induce “self-deportation.” Koback is considered the “mastermind” of “attrition through enforcement” throughout the country. Kobach is also the proud creator of the National Security Entry-Exit System (NSEERS), which is based on legal precedents that were used to detain and hold citizens and migrants of Japanese descent during the second World War, among other populations. According to a 2004 report on Special Registration by the Asian-American Legal Defense, through NSEERS, the Bush Administration rounded up over 82,000 Muslim men in the aftermath of the September 11 attacks; over 13,000 were put in deportation proceedings.  After that wildly successful anti-immigration maneuver, Koback turned his crafty mind and overpriced education to other issues:  he has helped author the anti-immigrant legislation in Pennsylvania, Missouri, Texas, Arizona, and Alabama’s HB 56. He so modestly describes himself as helping states “restore the rule of law.”

Two things to keep in mind: first, the restoration of the “rule of law” doesn’t involve punishing Goldman Sachs or Lehman Bros. investment bankers for squandering away the pensions of career pipefitters, teachers, and nurses, nor lobbying President Obama to cut off their “bailout” bonuses. Rather, it involves the creation of laws that pivot on the intersection of citizenship and surveillance. Koback’s contribution here is to centralize surveillance through the checkpoints of immigration and citizenship: For example, through Alabama’s HB 56, proof of legal status is required for all children entering public schools; birth certificates are required in every business transaction with the state; any citizen may challenge private business owners’ hiring practices as illegal according to this law. This law has also induced Alabamians–illegally–to take HB 56 into their own hands, refusing to conduct private business transactions without proof of papers in grocery stores. Employees at several Wal-Mart stores across the state refused to allow one migrant to receive a Moneygram from her mother without proof of legal status, even though such proof was neither part of the law nor store policy. Other migrants were told they wouldn’t be paid for work they had already done, or that they would no longer be allowed to rent their apartment, because these acts would be considered engaging in “illegal contracts.”

One migrant’s daughter was enrolled in a Birmingham, AL public school, where there has already been a conversation about what would happen if their parents are picked up by Immigration and citizenship enforcement (ICE): Their teachers have told them that they would be fine because they were American citizens; needless to say, that conversation terrified those kids even more than they already were.  Moreover, we know, according to ColorLines‘ Shattered Families Report that they will NOT be fine. In fact, the undocumented parents of US born children may very well be rounded up during a routine traffic stop, or a routine grocery store purchase, or during an ICE raid conducted in their place of employment, in which case they will be shuttled off to a detention facility and, chances are, deported before they ever have a chance to make arrangements for their children to be cared for by friends or family or to bring them with them, regardless of whether the parents are deported or released. And of course, children without guardians would be considered “abandoned,” and become wards of the state, ready to be shuttled off to a nice white family in need of a child to adopt.

These laws have created a climate where all brown people, regardless of citizenship and national origin, are acutely aware of being monitored: Women have quit their jobs and children have been taken out of school and kept at home, deprived of the chance of a routine life of education, playing with friends and socializing with family and neighbors.  The climate of “self-deportation,” is in fact a climate of self-monitoring, of the acute awareness that one is always being surveyed, that one’s comportment, behavior, existence is always under acute scrutiny. Your own fellowchurchgoers will refuse to shake your hands during the passing of the peace (16:50)  This is what it means to be an outsider. The law prescribes the attitude that “good law-abiding citizens” should take.

As Hannah Arendt points out in 1958,

The administration considers the law to be powerless because it is by definition separated from its application. The decree, on the other hand, does not exist at all except if and when it is applied; it needs no justification except applicability…People ruled by decree never know what rules them because of the impossibility of understanding decrees in themselves and the carefully organized ignorance of specific circumstances and their practical significance in which all administrators keep their subjects. (Origins of Totalitarianism, 244)

 

[Arendt has another passage that I can’t find on totalitarianism leaves us constantly vulnerable to criminality because offices and the law we are supposed to obey change constantly; a cookie for anyone who can find it].

 

Before you respond by insisting that “if they don’t want to live like this, they should just go “home,” do remember: those of us who are members of this blighted polity are also subject to the same scrutiny: As Bill Newman and the Mass ACLU have uncovered, the United States is now populated with Fusion Centers. These are local sites which collect, through the marvel of the 2006 Foreign Intelligence Surveillance Act (which your President Obama returned to DC from the campaign trail in August specifically to vote for), yours and my data: collecting your Weight Watchers food diaries online, crossing tollbooths with your EZ pass, pictures of your license plates in cities where you’re not supposed to be at that hour, your encounters on Craigslist and online porn sites, your telephone calls to your best friend and your shrink, your phone sex sessions with your traveling spouse, scrolling through various religious websites for inspirational lectures, online purchases for medications to relieve the symptoms of embarrassing diseases, email interactions with our lefty or radical or….god forbid, Muslim, students.

These Fusion Centers are regional: they collect data locally and then share it with national FBI data centers—this is, indeed, “the rule of law.” It is done legally. And after all, the difference between what is legal and illegal is inscribed through the stroke of a President’s pen on the signature line of a bill. The difference between what is moral and immoral, between privacy and violation of your most sacred thoughts—those too are established through the votes of your Senators and Congresspersons, as well as through the President’s pen. And don’t you worry—it’s a bipartisan effort: Senators Leahy (VT), Boxer (CA), Di-Fi (CA), Pelosi (CA), Gillenbrand (NY), Cantwell (WA), Kerry (MA), Reed (NV), Udall (UT), and the list goes on and one–all voted for the NDAA. The simpler question is, who didn’t vote for it?

The homophobic harassment of Tyler Clementi by Dharun Ravi was a violation of the sacrosanct right to privacy as deployed by an arrogant, young male migrant upon another young, gay, man. Immaturity, narcissism, bias, and youth all appear to be contributing factors in Ravi’s stupid, selfish act. His actions should at least be scrutinized carefully in a court of law, and condemned regardless of the outcome of the trial.  Still, how interesting that the extreme, systematic, violation of a group of vulnerable migrants through the concerted surveillance and coercion of state legislation is not to subjected to the same condemnation. “Self-deportation,” as Mitt Romney describes it, is considered less “messy” and less “expensive” than having officials track down, arrest, detain, deport, and break up families. There are records, evidence, and perhaps culpability in the latter. Self-deportation expresses a similar dislocation and pain, a similar fear, the same kind of harassment, coerciveness, and systematic psychic violence that a sole individual with a webcam does to another single person. Need I extend the argument to Fusion Centers? The difference, of course, is that the psychic violence is much more detrimental when leveled against groups who are already vulnerable, groups who are Muslim, South Asian, Middle-Eastern, brown, angry, dissenting, racially conspicuous.

As worse is the climate in which we have accommodated ourselves to having our everyday habits, routines, foibles, peculiarities, private habits, dislikes, sexuality subject to scrutiny by a state—by 50 states—by The State—that records, organizes, classifies their findings against us, ready to bring out at a potentially threatening moment (threatening to the state) to use against us.

Arendt again (in 1951):

Rule by decree…is superior simply because it ignores all intermediary stages between issuance and application, and because it prevents political reasoning by the people through the withholding of information.

 

She refers to the totalitarian state as one in which there is no distinction between public and private: both meld into one, and freedom, public as well as private, is an illusion. There is no home to seek refuge in from the public light of day. Even worse, spontaneity—to laugh, love, inquire, explore—becomes even more rare. One’s every move becomes a defensive calculation against potential violence: should I explore this website? Should I speak out? Should I argue with this administrator? He could turn me in—even falsely—and make my life a living hell. Should I go out to buy groceries this morning? Should I let my child out to play? Can I drive to work today? Psychic violence, violations of intimacies, shredding privacy are equally harmful whether done by one or done by a systematic set of laws, officials, networks, warehouses and databases.

I’ll leave with you a last thought by Arendt:

We are not concerned here with the ultimate consequence of rule by terror—namely, that nobody, not even the executors, can ever be free from fear; in our context we are dealing merely with the arbitrariness by which victims are chosen, for this it is decisive that they are objectively innocent, that they are chosen regardless of why they may or may not have done…

 

In order to establish a totalitarian regime, terror must be present as an instrument for carrying out a specific ideology; and that ideology must have won the adherence of many, and even a majority, before terror can be stabilized…And an ideology which has to persuade and mobilize people cannot choose its victim arbitrarily. (Arendt, OT, 6-7)

 

 

 

LGBTQ Young People of Color Mic Check

Clearly, these young folks get it: they understand the importance of transracial, transnational, solidarity. And they make clear that they are understand that anti-queer politics, homophobia, imperialism, homonationalism, and racism  are linked and must be seen together. If they can get it, why can’t other progs? Props to LGBTQ Young People of Color. Fierce, Sharp, Insightful. Gives me hope.