The Whistleblower Protection Act: Which ‘Disinterested Observer’ Gets to Decide?*

Update (below).

Yesterday, POTUS signed a touted “Whistleblower Protection Enhancement Act” which was passed unanimously by the Senate. Relatively short, it appears to strengthen protections against government-led retaliatory acts against government employees who report some evidence of wrongdoing.  On the face of it, it looks as if it leans in a positive direction towards creating space for raising complaints of ethical violations.

And indeed most media stories, from the New York Times to the WSJ blog reported it the same way. As the NYT described:

Capping a 13-year effort by supporters of whistle-blower rights, the new law closes loopholes created by court rulings, which removed protections for federal whistle-blowers. One loophole specified that whistle-blowers were only protected when they were the first to report misconduct.

Truthdig had a slightly more critical take, wondering how this would help Bradley Manning.

Really. A new bill to protect whistleblowers. Let’s take a look (pdf of bill here).

There is a curiously worded section that seems to speak to the same ambiguities that are under dispute in the situations of multiple whistleblowers—most notably Bradley Manning and John Kiriakou, among others.  In Section 102, after a series of clarifications about the range of evidence that an employee “disclosure” can include, there is a description what a disclosure “does not include.”

On the face of it, this exemption to protected disclosures sounds right. Administrators at any organization make discretionary judgments, and it is an obstacle to question discretionary policy decisions unless there is a compelling reason—like a violation of a rule or law or regulation—to object.  But the wording is interesting: it exempts communications of those disclosures. It exempts leaks unless there is a reason to believe that it evidences a violation of law.

So how are we supposed to know whether it does or doesn’t show a violation of law?

Section 103 tells us that the determination will be made by someone (a Senate Committee?) determining whether a disinterested observer who has access to all the facts would “reasonably conclude” that the disclosure evidenced a violation of a rule or law.

Again, in light of most urgent whistleblower prosecution underway, namely the military trial of Bradley Manning, it’s hard to know whether this bill creates new protective measures or assumes the very question that’s at stake:

Communications that show immoral conduct or unethical policies will be determined to be unlawful leaks—precisely because the gap between immorality and illegality is miles and miles long.

Judging from the last 11 years of US prosecutions of whistleblowers, communications regarding the torture of countless human beings who are assumed to be terrorists, or footage of dropping bombs on civilians who are trying to rescue their families from US attacks—will not show evidence of illegality—even when they show heinous, horrific, evidence of immorality.

The “ideal” disinterested observer, judging from the last 11 years of U.S policies, appears to be similar to the  Neoclassicals’ Homo Economicus: a rational agent who acts purely out of self-interest (which counts as objective action), doesn’t bring “ideology” into his calculations, and somehow often has near complete knowledge.

In other words, the ideal disinterested observer is close to impossible—unless it is someone who sides utterly with the official objectives of US national intelligence and foreign policy.

And sure enough, for the current Administration (and tragically, for any future “electable” Administration), only unmitigated hawks who have complete and uncritical faith in the way the lines of “national security” have been drawn—will count as disinterested observers. Seriously, does Congress want to tell us that it is likely that the US will view these communications through the lens of Medea Benjamin or Jameel Jaffer or Jeremy Scahill? Please. Much more likely, that it will be through the “disinterested” lens of Joshua Foust, Glen Beck, or Ann Coulter.

A disinterested observer who reasonably concludes, i.e. who would interpret that a communication evidences a violation of law qua the US Constitution, will NEVER–under this Administration–be the model for deciding that a classified email or memo or US national intelligence footage of bombs dropping on civilians—is immoral, and therefore constitutes a violation of (human rights) law.

The immediate objection that a Rightwinger or Obamabot will give (as disinterested observers) is that the Constitution can’t be the basis by which to determine that an email or memo or video footage violated a law or a rule—because the Constitution contains principles and not “rules” or “laws.” And therein lies the rub. The gap between immorality and illegality will be closed through the emphasis on rules. Rules. Convenient when persecuting whistleblowers. Not so much when organizing procedural trials, as Kevin Gosztola or Nathan Fuller will tell you.

So Congress and POTUS are probably feeling incredible jubilant and gratified.  Why not? They have managed to re-invent the same dreadful immoral wheel of persecuting whistleblowers while pretending that they’ve made advances in protecting them.

__________________________________________

Update: Also, here is Jesselyn Radack’s analysis of the WPEA. She is also quite critical of it, but on different grounds.

*Revised Title

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Thanksgiving Fun: The Prez’s Memo on Insider Threats…and Anti-Whistleblowing Pursuits?

Updated below.

Last Wednesday was Nov. 21, the day before a long Thanksgiving weekend when most journalists, employees, and majority of the American populace are distracted by traveling or preparations. On that day, the POTUS signed the below Presidential Memorandum.

National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs

This Presidential Memorandum transmits the National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs (Minimum Standards) to provide direction and guidance to promote the development of effective insider threat programs within departments and agencies to deter, detect, and mitigate actions by employees who may represent a threat to national security. These threats encompass potential espionage, violent acts against the Government or the Nation, and unauthorized disclosure of classified information, including the vast amounts of classified data available on interconnected United States Government computer networks and systems.

The Minimum Standards provide departments and agencies with the minimum elements necessary to establish effective insider threat programs. These elements include the capability to gather, integrate, and centrally analyze and respond to key threat-related information; monitor employee use of classified networks; provide the workforce with insider threat awareness training; and protect the civil liberties and privacy of all personnel.

The resulting insider threat capabilities will strengthen the protection of classified information across the executive branch and reinforce our defenses against both adversaries and insiders who misuse their access and endanger our national security.

BARACK OBAMA

_______________________________

In light of the breathless pursuit of whistleblowers under the Obama Administration,the significance of the memo appears clear in some ways. But in other ways, its added benefits to the voracious pursuit of Executive power by POTUS and his DOJ staff are as of yet hard to pinpoint.  Still, from the first paragraph to the last, this 183 word document is short, ambiguous and pointed in its wording.  It refers to a “National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs (Minimum Standards).” I haven’t been able to find a copy of the Minimum Standards Policy: but it appears to be a template by which to shield the national intelligence apparatus from classified information leaks by high-level employees, who presumably have access to “vast amounts of classified data on available on interconnected United States Government computer networks and systems.”

The Program appears to be authorized to monitor and intercept all “classified” communications by national intelligence employees for the purpose of pre-empting1. National security threats or 2. Whistleblowing. Or both.

As noted above, the memo’s timing is noteworthy. Also of note: exactly one week before this memo was signed, Sen. Ron Wyden of Oregon blocked the passage of NDAA 2013 through Congress without a public debate. Wyden cited several serious concerns about sections 505, 506, and 511, all of which involve internal national security threats.  As most news junkies will remember, NDAA 2012 was controversial for Sec. 301, which gave POTUS the authority to direct the arrest and detention of any US citizen or foreign nationals anywhere in the world on suspicion of terrorist activity. It was hotly discussed in the month before its passage and signing into law by POTUS, who initially insisted that he was not interested in such expansive executive authority. The blatant falsity of that position was revealed by Sen. Carl Levin, who pointed out before the Senate that in fact, the White House had threatened to veto the bill unless it explicitly included the section for expansive indefinite detention powers by the Executive.

This year’s NDAA pursues a similar expansive, pre-emptive power on the part the US state. Wyden explains his objections to sections 505 and 506 here. Section 506 is more troubling than 505: according to Wyden, it would prevent unauthorized, unclassified briefings form intelligence agency experts unless they were on the record. This section does 2 things: it prevents intelligence experts from informing the press about issues that they and the public should be given an inkling about. Second, it buttresses the DOJ’s legal authority to go after unauthorized leaks. Wyden’s objection to Sec. 506 stems from his view that “authorized, unclassified background briefings from intelligence agency analysts and experts are a useful way to help inform the press and the public about a wide variety of issues, and there will often be good reasons to withhold the full names of the experts giving these briefings.”

The third section that gives Wyden pause—correctly—is Sec. 511, which would authorize the head of National Intelligence to punish wayward whistleblowers by shutting down their pensions—an effective obstacle to airing wrongdoings, to say the least, especially by lifers who are close to retirement.

So, how does the Thanksgiving memo fit in? Hard to say, given the strange decisive yet ambiguous wording of the memo and the unknown details of the Minimum Standards Program. But this memo appears to break down the obstacle correctly created by Wyden’s opposition to NDAA 2013.  In effect, it seems to imprint an Executive decree that allows National intelligence officials to legally monitor all cyber-doings by its employees so as pre-empt them from passing on any unfavorable, unethical, or unseeming information to any sources outside the agency—even if for the purposes of ethical accountability:

“These elements include the capability to gather, integrate, and centrally analyze and respond to key threat-related information; monitor employee use of classified networks; provide the workforce with insider threat awareness training; and protect the civil liberties and privacy of all personnel.

Still, it feels a bit redundant. Is it? Or Is it a new angle on espionage-prosecution policy to augment all the hard work and efforts of DOJ over the last 4 years?

It’s not too coy to point out that the document comes on the heels of a protracted prosecution of John Kiriakou, a former CIA agent who blew the whistle on torture. It is also signed as the military trial of Pfc. Bradley Manning on charges of espionage and “aiding the enemy,” begins in Fort Meade, MD. Manning, who has been kept in solitary confinement continuously since May 2010, while deprived of multiple basic humanitarian needs all for turning over classified documents to Wikileaks. It was an act that, in different proportions, has created havoc for both Manning and Wikileaks founder Julian Assange.  Manning’s trial has gotten little notice, but is being covered by excellent advocacy journalists such as Kevin Gosztola and Nathan Fuller.

One final point: This memo appears to cement or clamp down even further on potential whistleblowers. By contrast, as financial regulator and anti-fraud expert William Black mentioned to me last night, the recently passed Dodd-Frank bill seems to lean in the other direction. It puts forth a strong anti-retaliatory provision, known as the “Bounty Hunter provision,” which allows whistleblowers in private corporations to sue for millions if they can provide the SEC with solid evidence that their activities were met with attempts to fire them.

Speculatively, what better way to pound another nail in the defilement of Constitutional checks and balances than to sign a deliberately ambiguous memo enabling National Intelligence officials to monitor and police their employees–using some new lens? Or just to police even more closely for signs of conscience or morality? We know both sides of that coin: leaks and threats to national security are how government officials, who are only a knife’s edge away from complete immunity, describe the moral calls to accountability on the parts of still concerned citizens and government public figures.

The persecution and prosecutions of Thomas Drake, John Kiriakou, Bradley Manning, were part of a series of never-ending moments designed to find new ways to expand the immunity of government officials, who continue to engage in wanton wrongdoing and who want the unencumbered capacity to monitor, police, and threaten anyone in their offices who dares to disagree. This memo—at the risk of being underdramatic—seems to be another ode to the expansion of executive authority.  Kudos to POTUS. Another year, another splintering of the few fenceposts remaining that were meant to restrain him and his posse. Check, mate.

_________________________________________________

Update (9:51 am EST): Here’s another speculation about the weird timing and wording of the memo:

Marcy Wheeler has this compelling argument about the timing of the public “release” of the “Drone Rule Book.” In the last paragraph of her post, she argues, it might have to do with backdating the logic behind targeted killings in the event that someone down the line like the Hague might order some accountability. I agree, and wonder if this Memo isn’t part of some effort to keep closer tabs on what National Intelligence employees release, so as to avoid inconsistencies between an Administrative effort to backdate the logic behind the Rule book and emails or other classified communications?

From the post over at emptywheel:

These awkward targetings are almost certainly precisely the reason the Administration refuses to make more information about its targeting program public: because they prove the program was never as orderly or legally sound as the Administration publicly claims. So the “rule book,” purporting to show the reasoned deliberations behind these screw-ups, might be one way to spin them as reasoned (and legal). I have suggested that some of the public statements about the drone program might have served as legal cover if ever anyone thought to prosecute Administration officials for killing civilians. Perhaps this “rule book” was designed to do the same?

Thus far, most of the treatment of the “rule book” has presumed it was meant to be prescriptive, and it might well have been. But it’s also possible the “rule book” was meant to be (falsely) descriptive, an effort to spin the program just as a group of potential critics got read into the program.

Update: Matthew Aid’s take on this seems to support my suspicions: this “rule book” is about the eventual review of this program.

A State Department official who recently left his post for a better paying job in the private sector admitted that there is deep concern at State and Justice that sooner or later, a court in the U.S. or in The Hague will issue a ruling on the question of the legality of these missions, which many in Washington fear will go against the U.S. government position that these strikes are legal.

Power, Ethics, Etiquette: The Liberal Sincerity of MSNBC Journalists

Updates I & II below:

I’m having difficulty seeing what others on Twitter have called the ‘mean-spiritedness’ and ‘antagonism’ of Ohtarzie’s latest post, “The Cable News Heroism of Chris Hayes.” His piece emerged after a prolonged exchange on Twitter with journalist Jeremy Scahill.  Ohtarzie gave a fair analysis of the significance of ‘left’ figures like Hayes within the context of corporate “liberal” media: Chris Hayes’ role (like those of Rachel Maddow, Melissa Harris-Perry, etc.), is largely symbolic and limited to the degree that MSNBC finds him useful. Hayes’ status as the host of a progressive forum on TV may have been true once, and he might even believe that he is an effective progressive journalist–but self-deception is a rather dependable refuge for the best of us.

There is little worthy in defending someone — Hayes, Chomsky, Obama, Maddow — by insisting that “their intentions are good/sincere/honest/liberal/left.”  As Hannah Arendt points out, bureaucrats and functionaries don’t wake up in the morning believing that they have insincere intentions.  Ditto mass murderers, presidential candidates, and your husband. Adolf Eichmann thought he was abiding by Kant’s universal moral law. That shows you how vacuous the categorical imperative can be. This is, as she points out, how the extreme ordinariness—the banality—of evil reveals itself: by seeking shelter in “sincere beliefs.”

Insincere intentions are the stuff of fairy tales. They are the simplest way to turn the banality of evil into the thrill of spotting a villain. This is why Hollywood directors are filthy rich.  The “sincere” beliefs view is helpfully reinforced by seeking confirmation from other like-minded folks—and friends. It is not convincing to critics. Rightfully. I am neither suggesting that Chris Hayes is evil nor that Jeremy Scahill, an excellent journalist, is at fault for pointing to Hayes’ sincerity. The former is too pat a description.  The latter is a natural impulse of friendship, but still a weak defense of Hayes’ shift toward Democratic apologia. There is something corrupt about the argument that one’s sincerity makes one a “good” anything—person, journalist, teacher, parent.

Ohtarzie writes:

[this is] why I consider most establishment lefts fundamentally toxic: their principled, analytical moments are inseparable from the ways in which they more frequently and potently subvert them…

It is impossible to overestimate the importance of presidential elections…to mass indoctrination, mass distraction, and movement killing, where they accomplish a great deal.

I would add that the toxicity of subverted principles is even more all-encompassing: it is a constant undertow that threatens to subsume you. It emanates from everyone you work with. Unless you are forceful in resisting, there is a tide that’s flows over you unceasingly. It becomes something you find—want–yourself to be part of. It is a damn sight more pleasurable to be a part of a crowd that has sincere intentions, gets paid well, believes in liberal principles, and looks the other way collectively, than to find oneself eating brunch alone in one’s tiny kitchen, or awkwardly greeted by upwardly ascending colleagues.  The natural response, then, becomes the willingness to acquiesce to the coercion imposed by that tide, that undertow, and of course, to the source of one’s bread—in this case, the defense contractor/corporate employer—and one’s social “network”: those with whom one aspires to be on friendly, intimate terms: other well-known corporate reporters, high visibility newsmakers, and of course, the POTUS himself and his functionaries.

It is at some level natural and to be expected that one will be less critical of the failings of those whom one knows personally or is friends with: one can see those failings in a more holistic aura of other “positive” characteristics. This is also part of why politicians curry favor with journalists and lobbyists curry favor with politicians: the line between business and pleasure becomes happily blurred. It is much more difficult to criticize or challenge someone whose sense of humor, holiday gatherings, or box seats you share.

It is not strange—nor wrong–for Scahill to locate Hayes within the context of his more positive lights. Nor might it be strange for Hayes and Maddow to do the same with Obama. Except that part of Hayes’ and Maddow’s jobs are to keep the President and the Democrats accountable. Which means that “listening to the President’s thoughts on economic messaging” is a dubious project—given that it is a journalist’s job to assess the message, not to help shape it.

This may be why “ethics”—along with physical and social distance from the subject of one’s writings–are useful: because they guide us during those confusing moments when our lust to be counted in another’s intimate circle conflicts with doing our jobs: being on intimate friendly terms with the boss, one’s dissertation advisor, the subject of one’s dissertation or biography, the enemy, or an important news source.

But the denial of that conflict of interest is all-too-rewarding.  As Ohtarzie says,

…the price all widely known public lefts from Rachel Maddow to Chomsky must pay to sit at the grownups’ table is agreement that a quadrennial, unconditional allegiance to whomever happens to be the Democratic presidential candidate is both tactically sound and socially responsible.

It is one thing to capitulate to the aspiration to success reluctantly, perhaps with a divided heart and mind. It is quite another to engage in the exhortatory jubilation that Hayes evidenced here (this was on my mind before I read Arthur Silber’s post, but he appears also to have found it vomitorious):

[I can’t successfully embed the clip, so here’s the link to the clip with transcript.]

This was perhaps one of the most noxious displays of Hayes’s turn to Democratic partisanship.  It wasn’t just a quiet “ode” to the labor of democracy, but an exhortation of the triumph of Obama’s victory. What made it especially troubling was not the description of his brother’s “the countless hours on the road,” although by the calculus of “hard work,” this victory could also have been Romney’s and his staff, no?

Sixty to ninety hours a week, 52 weeks a year for five years, my brother worked to get Barack Obama elected president, and then from his perch as the Nevada state director this time around, to get him re-elected. I’m biased of course, but to me, Tuesday’s victory was Luke’s victory as much it was anyone else’s.

It was not the exultation in the face of a year of arguments–among progressives and liberals about the miniscule differences that could be used to distinguish the “right” candidate from the “left” candidate–that was disturbing.

No. What made it especially sickening was the craven excitement exhibited by Hayes, given the months of shows on race, drones, the faltering economy, the mortgage foreclosures, constitutional violations, etc. As I watched, I wondered how to reconcile his joy with his factual awareness of the violations and punitive treatment of vulnerable and poor populations, people of color—citizens and foreign nationals. Was it

A deep self-deception? Perhaps if we were to believe Hayes’ defenders that he “means well.”

Amnesia? Somehow he forgot the years of outrages that he himself discusses?

Indifference? To interpret Hayes’ “Dashle-like” response that Freddie DeBoer diagnoses, and invoked by Ohtarzie?

To watch Hayes toasting his brother’s victory in the aftermath of yet more drones sent into Yemen (on the day of the election)–while being acutely aware that more people had died in the intervening 4 days between the re-election of Barack Obama and Hayes’ show—made my blood run cold. This man is supposed to hold politicians accountable.

That brings me back to the point with which I began:  Several Twitter followers described the stark tone of Ohtarzie’s post as “mean-spirited” and “antagonistic.”  They seemed to imply that Ohtarzie was guilty of a breach of etiquette—that one must be “polite” in one’s criticisms. I did not see the “impoliteness.” But I am all too aware that the purpose of “etiquette” is to smooth the frictions of social life, of social interaction. One is polite so as to avoid conflict–as we see in the traditional advice to avoid discussing “religion, politics, and sex” at family gatherings–with one’s fellow journalists or Democrats, or to avoid being dismissed as irrational or crazy—especially when brown or Black. I don’t think rudeness and spite are always political acts. But being openly, unflinchingly disagreeable is an important step towards the political.

The criticism of Ohtarzie’s “antagonism” belies one answer to the very question that is under dispute: Apparently there are those who believe that etiquette should be used to smooth out the criticisms of progressive journalism. But in fact, the answer has been much more deadly to the 4th estate. Etiquette and social intimacy are inevitably successful tactics to induce “progressive journalists” to exploit their radical credentials while accepting the invitation into the corporate fold. At extreme political cost.

Liberal sincere intentions. Doing well by doing good.

_________________________________

Update I: It’s as if the NYT and I coordinated today. Jon Meacham, author of Thomas Jefferson: Art of Power has an Op-Ed in which he endorses “Socializing as a Political Tool.” Obama, he says, should invite his opponents to dinner; it “ameliorates” differences. Bien sur!

Update II: Anonymous posted this link in the comments section below, but I wanted to highlight it here. It is another excellent post by Barry Eisler on a similar topic, “You Will Be Assimilated.” Gut-clenchingly candid in its assessment of the signs of journalists selling out. Must read.

Israel’s “Right to Self-Defense” is Kinda Like “Reverse Racism”: Hardly an Equal Playing Field

Since Israeli broke the ceasefire with Gaza last Wednesday, 100 Palestinian civilians have been killed. Number of Israelis killed: 3. And that’s the short view. The long view makes Israel look even worse.

From a report by the Palestine Center entitled “Imbalance of Power: Understanding Weapons and Casualties in Gaza”:

“From January through September 2012, Israeli weaponry caused 55 Palestinian deaths and 257 injuries. Among these 312 casualties, 61, or roughly 20 percent, were children and 28 were female. 209 of these casualties came as a result of Israeli Air Force missiles, 69 from live ammunition fire, and 18 from tank shells.
 
In 2011, the projectiles fired by the Israeli military into Gaza were responsible for the death of 108 Palestinians, of which 15 where women or children, and the injury of 468 Palestinians, of which 143 where women or children. The methods by which these causalities were inflicted by Israeli projectiles breaks down as follows: 57 percent, or 310, were caused by Israeli aircraft missile fire; 28 percent, or 150, where from Israeli live ammunition; 11 percent, or 59, were from Israeli tank shells; while another 3 percent, or 18, were from Israeli mortar fire.
 
As this infographic shows, there is no room for a discussion on the “equal sides of the conflict,” when the reality is a first-world country, with all the trappings of a modern highly sophisticated weapons arsenal, launching devastating and brutal attacks against the most densely populated area in the world, where half its population is youth and 40 percent of its population lives below the poverty line.”

And in case you find the source of this report a biased, check out the figures calculated by the United Nations: In the last 10 years, Israel has killed over 3400 Palestinians. Israelis killed by Palestinians: Fewer than 80.

These numbers only go up to July 2012.

In this scenario, the Surround-Sound claim of Israel’s “Right to Self-Defense” makes about as much sense as a schoolyard bully who corners a nerdy weakling for weeks and months, steals her lunch and money, until the weakling finally gets so tired of being bullied that she bloodies the bully’s nose–only to have the bully claim injury. To make the situation even more absurd, all the bully’s friends rally round to “support” the bully’s claim of “uninstigated” injury and the right to self-defense: Israel’s RoSD has been trumpeted and parroted by numerous journalists, pundits, mainstream newspapers and magazines. It seems as if a day hasn’t passed where there hasn’t been another senator echoing the commitment of Israel to “defend itself,” as per a  resolution passed by “unanimous” acclimation by the US Senate and House last Friday. Dennis Kucinich appears to be the only Congressman to challenge the resolution or its sentiments.

The chorus of the mainstream media and the US government “supporting” Israel’s right of self-defense, with nary a mention of the right of Palestinians to live is remarkably ahistorical and anti-intellectual on several counts, especially when considering that Israel had been planning an assault on Gaza for months, according to various rumors. Richard Falk, the UN Rapporteur for Palestinian Human Rights, points out that

The counter-narrative, accepted by most independent observers, is that the Israeli removal of troops and settlements was little more than a mere redeployment to the borders of Gaza, with absolute control over what goes in and what leaves, maintaining an open season of a license to kill at will, with no accountability and no adverse consequences, backed without question by the US government.

 

Backed by the US government how, you ask?

Israel’s military arsenal is not due to the tax pressure on its citizens, but is largely funded by the United States. American citizens actually pay more money individually and overall to the Israeli military structure than Israeli citizens do.”

In this regard, the “both sides” are equal argument is as disingenuous as the “Reverse Racism,” argument deployed by whites against Affirmative Action. That argument goes something like this: “I had nothing to do with African Americans being enslaved. My ancestors didn’t arrive in the US until this century. Why should I be discriminated against?”

Of course, there are several telling (and faulty) assumptions here:

-There is an equal playing field for all.

-“Racial discrimination” is easily deployed by an oppressed group (Black Americans) against a dominant (white and upper-class) population with social, economic, and political resources to control and manage the game of ascending to power/college/employment.

-History and long-standing structural racism doesn’t matter when considering injury, discrimination or justice.

If we examine these three assumption in the case of Gaza and Israel, of course, the “Right of Self-Defense” argument immediately becomes apparent in its falsity.  Back in 2008, Darryl Li illustrated the disingenuity of the “equal playing field” argument as he describes the initiation of project of managing Palestine along with Israel’s paradoxical claim to “disengagement”:

 

Since its beginnings over a century ago, the Zionist project of creating a state for the Jewish people in the eastern Mediterranean has faced an intractable challenge: how to deal with indigenous non-Jews — who today comprise half of the population living under Israeli rule — when practical realities dictate that they cannot be removed and ideology demands that they must not be granted political equality. From these starting points, the general contours of Israeli policy from left to right over the generations have been clear: First, maximize the number of Arabs on the minimal amount of land, and second, maximize control over the Arabs while minimizing any apparent responsibility for them.

 

What we also know however, is that the most recent incitement to the “escalation” is in fact a long-standing plan on the part of the Israeli government. As Samira Esmeir argues, Gaza is a colonial experiment. It

 

has become the literal testing ground for Israel’s various experiments, as well as for the fulfillment of the personal ambitions of Israeli politicians. The transformation of Gaza into a laboratory for colonial and imperial hegemony in the region is made in Israel. As an occupying power, Israel transformed Gaza into such a laboratory by imposing on it different forms of confinements culminating in the siege imposed and maintained since 2006.

Confinement lessens the checks on Israel’s military operations and decreases the deterrence and self-defense that Gaza can offer against the Israeli war machine. The horror of this latest war therefore lies not only in the destruction it engenders, but also in its condition of possibility: Here is a population held hostage that Israel attacks when it wishes in order to achieve political ends that have little to do with Gaza itself. The horror is in the careful and measured instrumentalization of the Palestinian population and in the logic that the colonized are expendable for any end.

 

This then is not a case of Israel being provoked or defending itself against “Hamas.” To take refuge in that line requires a deliberate forgetting—an intentionally self-serving memory that refuses to take history and the political project of colonialism into account. If we relish the “apolitical” argument that says “both sides are to blame,” we absolves ourselves of the responsibility to take history and domination into our thinking.

When bullies claim injury, authority figures need to stop the fight and punish the bully, not invoke his right to self-defense. Bullies and victims are hardly on the same playing field.

_____________________________

 

Holding Their Feet to the Fire: Are We or Aren’t We Serious?

Robert E. Prasch

The reelection of Barack Obama has induced two responses from liberals and progressives.  On the one hand, there is palpable relief that Mitt Romney and the Republican Party will not be running the show.  On the other, multiple voices are saying,  “It’s time to hold their feet to the fire.”  Liberals and progressives, it seems, are belatedly willing to admit a truth that was literally unspeakable before the election – that the record of the Obama Administration has not met expectations, and that Republican obstruction can account for only a portion of the shortfall.

Holding some person or institution accountable is an act of power.  Many liberals and progressives believe that the recent election has brought about some – as yet undisclosed — change in the American political landscape that grants them a measure of influence over the leadership of their party, including the White House.  This is a leadership, let us remember, that has resolutely turned its back on the entreaties of its own supporters for most, if not all, of the past decade.  In some way or manner – again undisclosed — we are to believe that the second Obama Administration will find itself obliged to adopt an agenda that more closely coincides with the people who voted for “hope and change” in 2008.  That is to say, those millions of voters who thought that they had restored their nation to a degree of sanity, but were instead disappointed to find George W. Bush’s foreign policy and surveillance state greatly enhanced, corrupt and failed bankers were granted a free pass at home, and whistle-blowers facing criminal charges even as the war criminals they exposed were excused or promoted to high office.

Were the Obama Administration to take up even a portion of its 2008 platform, it would certainly be a welcome turn of events.  Unfortunately, and despite the implicit claim of so many, I have yet to hear a single compelling reason why this Administration would wish to become responsive to the hopes of liberals and progressives.  After all, the elections are now done, so why change?  Let us recall that Robert Gibbs refers to liberal and progressive critics as the “loony left,” David Plouffe calls them “bedwetters,” and no family newspaper can print the adjectives favored by Rahm Emanuel.

So again, why would the Grandees of the Democratic Party suddenly change direction?  Why would they now turn to a more liberal or progressive legislative agenda?  What is in it for them?

Nevertheless, we are told that liberals and progressives will hold the Administration’s “feet to the fire.”  I applaud this new-found commitment to hold Democratic officials accountable, but would it be unreasonable to ask “how” they intend to accomplish this end?  Given that they have offered the party leadership, no matter how odious, unconditional support in the 2004, 2006, 2008, 2010, and 2012 elections, are they planning to change their strategy now?  If so, to what?  What leverage will they be bringing to the table?  Any specifics?

To clarify the issue, let us consider it from the perspective of those at the heights of the Democratic National Committee.  What lessons have they learned over these past five elections?  Specifically, what lessons have they learned from spurning the hopes of their liberal and progressive base?  Let me put this another way:  which penalty or penalties has the leadership of the Democratic Party incurred by knowingly, deliberately, and intentionally voting and governing in a manner that has been largely anathema to the party’s disproportionately liberal and progressive base?  Let us review:  their actions (as opposed to their periodically moving speeches) have been systemically pro-war, pro-drug war, anti-Civil Liberties, in favor of shameless pandering to Wall Street, in favor of any and all shamelessly pro-corporate “free trade” agreements, largely anti-immigrant, and indifferent (at best) to organized labor.  So, to ask again, what has been the penalty?

The leadership of the Democratic National Committee has learned, over and over again, that once they ascend to office that they will incur no penalty from liberals or progressives no matter how poorly they serve their supporters or the nation.  They have done more than learn this lesson, they have acted on it.  I suggest that they will continue doing so until the strategy ceases to work for them.

For this reason, I offer a suggestion.  If liberals and progressives would like to change the behavior of the senior leadership of the Democratic Party, they will have to modify the incentives.  It will be necessary to deny, or at a minimum threaten to deny, the DNC something they ardently desire.  What they desire is elected office and the perks that normally accrue to those who have used the offices they have held to serve well-placed firms and industries.  Yes, they talk about hope, change, and other ideals, but their record is long enough, and persistent enough, to reveal their true priorities.

Now, at this point in history, liberals and progressives do not have the ability to change the Party’s leadership as they are too entrenched.  But we can deny them electoral victories until they learn to grant us at least a portion of what we want.  In a previous post, I outlined an approach to strategic voting based on elementary game theory.  I am open to the idea that other strategies might be more effective.  The essential point is that liberals and progressives need to find a way to make their voices heard in the Democratic Party that promises a greater degree of success than compliantly voting for whatever right-of-center hack is currently being advanced as “the lesser of two evils.”  By now, our current predicament should be clear.  We may not be a majority of the nation’s voters, we may not even make up a majority of registered Democrats, but our voice is almost unheard in the national debate, and this must to change.  What we need is a concrete proposal to take us somewhere else.  That, and nothing less, will put us in a place to “hold their feet to the fire.”

Is this, one might ask, a risky strategy?  Yes.  Might it cost the Democrats a few elections because of disunity?  Yes.  Is it unpleasant to rebel against the leadership of a party to which so many have had, and so many still harbor, long-standing emotional and political attachments?  Yes.  But holding the powerful accountable has never been easy.  If it were, we would not be in this conundrum.  However, if the liberals and progressives are serious about “holding their feet to the fire,” they will be willing to take these risks and bear some costs, including some losses at the polls.  Over the next couple of years, we will find out if liberals and progressives are serious about changing their relationship to their party’s leadership by holding them accountable in the only way that matters.

The NYT and “Targeted Killings”: Which Fork to Use?

The NYT Room for Debate of yesterday led with the question: How can Targeted Killings Ever Be Justified? It was followed by the caption: Are government-sponsored assassinations ever appropriate?

There are several things to say about the “debate.”

The wistfully posed interrogative–in the aftermath of Israel’s killing of a Hamas leader, and massacre of 19 civilians and children*–was astounding. The title of the “debate” is notable for the assumption that targeted killings are to be taken for granted.  The topic of the debate is not “whether” targeted killings can ever be justified…but how?  The subtitle confirms the unspoken premise in the initial question: Are “government-led” murders ever appropriate?

The NYT Debate has elevated the ethical question of state-led killing to the plane of discussing etiquette. The question is not whether to use a fork. But which one? And when?

Translation: What are the creative and varying ways by which Israel or the U.S.–the only states permitted to engage in extrajudicial murders of alleged terrorists or civilians without repercussions–can justify a system of focused, intended assassinations? Given that they will happen from now on with regularity, can an ineffectual and impotent public, led by an obedient media, find a way to approve and support extrajudicial state actions?

Predictably, The Times found some ready takers for both sides of the “debate.” Remember, the debate was not whether…but how targeted killings could be justified. The NYT “Debate” became a forum for 5 people on a narrow spectrum of 0 to 0.2 (ranging from “justified most of the time” to “justified some of the time”). And true to themselves, each followed the premise like an obedient cocker spaniel: it’s ok to have targeted killings, as long as you can justify them in some framework. Objective commentators, to be sure.

Perhaps the most egregious was the notorious Alan Dershowitz, Harvard Law Faculty and “civil rights lawyer” of “Ticking Time Bomb” fame.  Dershowitz, also accused of plagiarism, has made a reputation justifying the torture of alleged terrorists. By alleged terrorists, he refers to those who were charged with nothing, from whom no evidence could be extracted until they were put “on the rack.” The complete disutility of the information could be garnered by putting me on the rack; I guarantee that in seconds a torture agent could induce me to confirm that Barry Manilow is the second coming of Christ.

Dershowitz’s considered position on torture posited an unlikely scenario where there could very well be a ticking time bomb that might go off and endanger multiple lives. The only one who knows the location of the bomb is the Evil Guy—without explanation or proof, we just know that he was evil—and the only way we can save multiple lives is by torturing Evil Guy to give up the evidence. Here is an aptly titled critique of Dershowitz’s pro-torture position from 2004, entitled “Alan Dershowitz, Professor of Torture.” Short piece, but complete and still relevant.

In yesterday’s NYT debate, Dershowitz offered a specious critique of the point that extra-judicial killings are illegal: he points to military actions, killing in self-defense, and shooting a fleeing felon as extra-judicial and yet accepted practice.

In one way, he is right: military killings ARE extra-judicial and accepted practice, as we’ve seen over the last decade, especially if

1. there is no official declaration of war.

2. a majority of elected representatives succumb to the hysterical agenda that calls for invading or bombing a country without sufficient evidence of the threat.

3. that courageous force of accountability—the media—parrots the spin disseminated by its government.

4. a nation agrees to cover up the destruction and damage to its own troops by a rogue nation.

In other ways, Dershowitz is flat wrong: the legality of shooting a fleeing felon—depends on who did the shooting: A cop? A person in their home? Someone on the street? He’s also wrong about killing in self-defense, an act that is often arbitrated in court and these days—by the state–to determine whether the killing was necessary for self-defense.  Occasionally, the murders are done by an enlisted soldier during his down-time, and the media decides that the luridness of the event will increase profits more than a canine-fealty to the state’s spin. After that, we put on a show-trial. That is to say: a trial in which we charge low-ranking actors to burnish the pretense that we care about justice.

What is even more specious in the above “debate” is Dershowitz’s “lesser of 2 evils” justification. I know. You thought we were safe from this phrase for at least a month past election season. You were wrong.

“The alternatives to targeted killing are either to allow terrorists free rein in targeting civilians or to engage in undertargeted military actions that are likely to cause more casualties. Targeted assassination will often be the least bad alternative in an inevitable choice of evils.”

It’s hard to know what “undertargeted” means—perhaps the Big D is trying to suggest that targeted drones are better than rockets.  Still, notice the consonance of Dershowitz’s position with NPR’s “objective” view:

“Hamas has now fired more than 130 rockets toward southern Israel and the Israeli military continues to fire at targets in Gaza. Palestinian officials report at least 13 deaths on their side of the border. The death toll in Israel remains at three.”

Hamas fires rockets toward Israel, but Israel fires at “targets.” Targets that include children. The “undertargeted” actions taken by Hamas still resulted in fewer—yes—fewer deaths than the “targeted” killings taken by Israel.

So, are Israeli rockets just in need of eyeglasses? As things stand, undertargeted killings appear to be substantially less lethal than targeted ones.  If targeted killings are “less bad” than “undertargeted” military actions, which are presumably random massacres, then why are so many civilians and children being killed in the process of “targeting” alleged terrorists?

“Targeted killings” are the “least bad alternative.” That must be why we saw the Senate non-partisan unanimous resolution supporting Israel’s “right to self-defense” on Thursday. Wait, how does that go again? Oh, right. The Democrats = less evil.

If the NYT really wanted a debate, then why not choose Ali Abunimah, a Palestinian American journalist and activist, who has not been interviewed by a single U.S. news station?

Is he committing too much truth? Ok, then, how about Stephen R. David, who wrote a careful criticism of “Israel’s Policy of Targeted Killing” way back in 2003 (the full pdf version of the article can be found on his wiki site)? for Ethics and International Affairs? As Professor of International Relations and Vice Dean for Undergraduate Education at Johns Hopkins University, David is hardly a left-wing kook.

Aside from the fact that the NYT has presented a framework that relegates Gaza’s reality to the level of table manners, it has erased the significance of the hundreds of bombs that have fallen in Gaza and the hundreds of civilian casualties that have resulted.

The NYT also assumes that Israel’s intended target, Hamas’ “subcontractor” Ahmed Jhabari, was the “threat” to be overcome. But according to Haaretz, Jhabari “was…Israel’s partner in the negotiations for the release of Gilad Shalit; it was he who ensured the captive soldier’s welfare and safety, and it was he who saw to Shalit’s return home last fall.”  Haaretz also points out that “in return for enforcing the quiet, which was never perfect, Israel funded the Hamas regime through the flow of shekels in armored trucks to banks in Gaza, and continued to supply infrastructure and medical services to the inhabitants of the Gaza Strip.”  If Jhabari is the representative in charge of negotiating the cease-fire, then why is he the target? Moreover, if Jhabari was the “precise” target, then why are so many Palestinian civilians dead?

So, the real—and only–question at stake in the NYT Debate is how to rationalize the killings. Killings. Plural. Because alongside the “targets” that apparently Israel is “better” off focusing on rather than a mass, ‘untargeted’ war or massacre or genocide, multiple civilians and children are being burned to death.

As Glenn Greenwald wrote yesterday, the template of targeted killings is now on the table for both the United States and Israel. We can hardly point to Israel’s wrongdoing without also condemning the U.S.’s position on this. But why does that have to mean that every American news station and media channel—from CNN to MSNBC to the New York Times–has to find ways to rationalize wrong-doing by the state—American or Israeli?

Is it EVER ok to use my salad fork for my main course?

******

*An earlier version incorrectly reported 14 deaths of Palestinian civilians and children.

Meditations on White Privilege and Racial Injustice

Update I & II (below):

In the months leading up to last week’s elections, there were multiple occasions when white liberals deployed the charge of racial and gender “privilege” against other whites. Such accusations were lobbed against those who argued that over the last four years, the Democratic Administration had pursued policies that resulted in serious physical, social, and economic harms against men and women of color in the United States and internationally.

The damage wrought upon minorities under a 9-11 regime began with the Bush Administration, which intensified the scrutiny of all Muslims. In many cases, being a Muslim male became a criminal act. That criminality has been continued and expanded under the Obama Administration. More generally, the active destruction and criminalization of Black and brown men and women can be seen in numerous policies promoted over the last four years.

The U.S. government’s message that poor and vulnerable populations of color are worth little, or even expendable, has been amplified.  It is not too extreme to suggest that the right to live has been greatly mitigated for poor, and vulnerable black and brown peoples. And that is in the U.S.; internationally, the Obama Administration has amplified its focus in assault on brown and black populations of various countries, between drone wars, invasions, and other wars.

Yet, the response to commentators—at least those who are white or male–who have precisely criticized POTUS/Dems on their assaults on the civil and human rights violations of Black, brown, and Muslim folks has been to accuse them of white or male “privilege.” This is a bewildering accusation, especially as it has been lobbed by other white men and women (Black and brown critics of the POTUS/Dems’ racial politics have been largely ignored by those same detractors).

Stated simply, we are not talking about white privilege here. The term “white privilege” is increasingly used for the public moral shaming of whites whose politics other whites disagree with. Not for that reason alone, white privilege is becoming an increasingly ineffective term. White “privilege” relies on its relative politeness to obfuscate the most urgent concern in post 9-11 United States: the state-led power that facilitates the emaciation of vulnerable populations.  By state-led power, I refer to directives, laws, bills, and executive/congressional endorsements of policies that authorize the neglect, indifference, or active harm or persecution of US “minorities” and dark foreign nationals in the US and in nations with whom the US is at odds.

We have ample evidence of this: the expansion of the drug war and more frequent prosecutions of petty drug possessions (despite state—approved medical marijuana laws)[*];  FBIled entrapment of Muslim men for terrorist acts; counterterrorism prosecutions in which the defense is required to do its work with its hands tied (through the absence of known charges, evidence or Constitutional guidelines).  As well, the conditions of incarceration have been shocking for Muslim men imprisoned in the United States for dissenting speech acts (which is about the only provable “crime” in many cases): solitary confinement, Special Administrative Measures which restrict the ability to pray or pray in Arabic, visiting time with family, having fresh air. The list goes on.

Under the Obama Administration, we have seen the institutionalized expansion of unchecked executive power to determine which US citizens, children, and foreign nationals to kill (NDAA), to arrest for protest (H.R. 347), to arrest and cross-check with FBI databases for visa violations (Secure Communities). We now take for granted preventive detention, kill lists, and centralized surveillance in the form of Fusion Centers.

Certainly, there is cultural, “ironic,” aesthetic, media racism–but the most immediate and dire racism is that involved in the violation of the political and legal rights of human beings. Of U.S. and foreign nationals.  When white men point these out, they are using their privilege to highlight those harms to other populations. The attention that they draw to the assaults inflicted upon black and brown bodies doesn’t make them racist. It makes them the allies of black and brown folks who are being injured. It makes them my allies insofar as the harms done to black and brown women and men are among my most urgent concerns.

In fact, many of us, white and brown and black have different kinds and degrees of privilege. But after the 2008 elections and the last four years of a Black president, it is far from clear that we have a more racially progressive society. While a certain visual racial harmony is actively promoted in television and media in the form of interracial friendships, relationships, and children, it obscures the material injustice that is waged below the surface.

Racial or gender progressivism cannot—should not– be assessed from symbolic gestures such as the invitation to cocktails and dinner at the White House, or the public performance of a marriage, or the camera-mediated emotions of public figures.  They may be comforting, but they do not—should not–detract from attention to the damage that state-led policies are imposing on black, white, brown human bodies or psyches.

The racial injustice that must be urgently challenged falls along the grid of human rights violations, that is, the violations to one’s human dignity and well-being. Violations of basic human rights—those which are not articulated in the US constitution, but which nevertheless follow from a shared understanding of humanity—can be found in the Universal Declaration of Human Rights (UNDHR). Some argue that the UNDHR is more of a normative—moral—framework, than a political framework. In other words, the idea behind the UNDHR is that, while a number of these rights appear to be similar to those articulated in the US Constitution (for good reason: they were co-authored by Eleanor Roosevelt, spouse of FDR), they are considered to apply to human beings regardless of a person’s national affiliation, and they speak to a positive understanding of rights which emphasizes social and psychic well-being.

I understand the myriad arguments about the unenforceability of the UNDHR. The formidable Ms. A(rendt) was dubious of the capacity to invoke human rights when human beings are forced outside a political system—when they become stateless. My concern, however, is that we must shift our deeply American—myopic, culturally narcissistic, exceptionalist–worldview to consider a different normative model for racial and human justice: one that attends to the well-being or flourishing, of human beings.

Racism and whiteness, as we’ve seen throughout this election and after, often go together. But whiteness can also be used to highlight and criticize the civil and human rights violations that are imposed on vulnerable Black and brown populations, without deserving the term “racism,” or “privilege.” In post 9-11 United States, those who engage in the latter—by allying themselves with darker vulnerable populations–often reap few benefits by speaking out against state-led racism, xenophobia, and material racial and gender injustice.


[*] Will the Feds continue this policy even after 2 successful state measures to legalize marijuana in WA and CO?

Update I: Perhaps an answer to my question above: A petition to insist on states’ rights to legalize, regulate, and tax pot and booze.

Update II: I should note that this essay doesn’t preclude the fact that, even as allies, white progressives have been susceptible to not seeing the racial complexities of imperialism–as we can all be. For example, as in the cases of Syrian and Iran, it is possible to be against the assaults on human beings and also against direct military intervention. The following posts explore these complexities in nuanced ways:
1. Guest blogger Prof. Omar Dahi on Syria.
2. Raha Iranian Feminist Collective essay on the moral and political complexities of a progressive response to Iran.
3. A letter also by Raha on this blog which articulates beautifully a similar point.