Edward Snowden: The Great Criminal

As Edward Snowden’s name is bandied about, with a debate emerging over whether he is a hero or a criminal, whistleblower or traitor, the words of philosopher Walter Benjamin come to mind.  In his 1921 essay, The Critique of Violence, Benjamin discusses the law’s goal to pursue the monopoly on violence:

The law’s interest in a monopoly of violence vis-a-vis individuals is not explained by the intention of preserving legal ends but, rather, by that of preserving the law itself; that violence, when not in the hands of the law, threatens it not by the ends that it may pursue but by its mere existence outside the law.

Here Benjamin restates one of the fundamental goals of classical liberal political philosophy, at least for philosophers such as Hobbes and Locke, namely to eliminate the use of violence from everyone except the state and its duly appointed deputies. This is why in Locke, the state ‘agrees’ to protect the rights of individuals in exchange for individuals giving up their right of retribution and punishment. The right of violence becomes the sole provenance of the state, whether through the death penalty, prisons, or defense of the state itself.

However, as we also know, the state monopolizes and regulates the use of violence in the interests of those who have the most influence over the state: these wealthy men who decide the personification of the state. In the 1600’s English North America, this would have been white Englishmen. In the 1910’s, Benjamin was interested in the role of workers in challenging the monopoly of state violence.

Understood in this way, the right to strike constitutes in the view of labor, which is opposed to that of the state, the right to use force in attaining certain ends. The antithesis between the two conceptions emerges in all its bitterness in face of a revolutionary general strike. In this, labor will always appeal to its right to strike, and the state will call this appeal an abuse, since the right to strike was not “so intended,” and take emergency measures.

Perhaps unsurprisingly, unions aroused a widespread secret admiration from a public that was weary of the state’s imposition.  Today, as Occupy and other movements point out, the most influential are still the 1%–though the colors, sexes, and sexualities of this privileged demographic have been somewhat expanded.

For example, Locke’s story of slavery is more accurately read as the story of colonialism –and eventually—imperialism. Strangers attack Englishmen. Englishmen fight back and win. They have the right to kill the strangers, but grant them their lives in exchange for their agreeing (at least implicitly) to be slaves. It is, an apologia for the conquest of American Indians. But in the modern moment, it is a story that is replicated by Samuel Huntington in the “Clash of Civilizations.”

Back to Benjamin, who is thought to have committed suicide in Southern France as he was trying to flee from the Nazis.  Here is another excerpt from the “Critique of Violence”:

The same may be more drastically suggested if one reflects how often the figure of the “great” criminal, however repellent his ends may have been, has aroused the secret admiration of the public. This cannot result from his deed, but only from the violence to which it bears witness.

How might this apply to Edward Snowden? Snowden’s ‘crime,’ if you will, was that he disrupted the state’s ability to protect its monopoly of violence by exposing its widespread surveillance activities.  He did this despite the widely claimed fears of interested parties that doing so would “undermine national security,’ and in the face of the state’s insistence that these activities are justified and justifiably secret. In this sense, the fact that he challenged the prerogatives of the state itself, makes his alleged ‘crime’ so much more transgressive than, for example, merely lying to Congress about weapons of mass destruction, starting a war with a random nation in which tens of thousands die, or torturing rendered persons. None of these latter crimes are a threat to the state itself, and for that reason may be readily forgiven and forgotten.  Manning and Snowden are, however, ‘great criminals’ in that their actions embarrassed and undermined state power.  They can never be forgiven or forgotten.

So, for a significant portion of the public, there seems to be an–open or perhaps grudging…admiration of Snowden because he has dared to challenge the state’s monopoly on violence. He challenges the state even as he acknowledges that the state will use every resource at its disposal to exact its revenge. We know from the tragic example of Aaron Schwartz that challenging the Department of Justice will require endless resources, from millions of dollars of legal know-how and the filing of endless FOIA requests. We know from the example of John Kiriakou that even going through formal channels of whistleblowing—including being

 

“the first CIA officer to call waterboarding “torture”; to reveal that the CIA’s torture program was policy rather than a few rogue agents; and to say it was wrong”

 

will not stop the state, even a state led by a “transformative presidency,” from making sure that no one disturbs its monopoly on violence.

In this case, therefore, the violence of which present-day law is seeking in all areas of activity to deprive the individual appears really threatening, and arouses even in defeat the sympathy of the mass against law. By what function violence can with reason seem so threatening to law, and be so feared by it, must be especially evident where its application, even in the present legal system, is still permissible.

What makes Snowden so interesting is that it appears that he is an old-fashioned “believer” in the American project—someone who wanted to fight the good fight, to uphold American principles and ideals, as the US government has long professed is also its mission. He contracted to work for defense contractors who in turn worked with the NSA, and for that reason did not begin his (short-lived) post-military career with misgivings about the American imperial project. As he got to see the how its affairs were being misconducted, he continued to believe in “doing the right thing.”  What also makes Snowden remarkable is his awareness that

[T]he “US Persons” protection in general is a distraction from the power and danger of this system. Suspicionless surveillance does not become okay simply because it’s only victimizing 95% of the world instead of 100%. Our founders did not write that “We hold these Truths to be self-evident, that all US Persons are created equal.

Whether or not one agrees with his actions, whether or not his politics and ideology mesh with the ideas of the right or the left–it will always be a remarkable sight to a see a lone person stand up to the Leviathan, composed as it is of its myriad eyes, all watching, waiting, to clamp down on any threat, no matter how trivial to it relentless monopolistic pursuit of violence—and power.

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This piece was republished in Salon on June 19, 2013 as “Edward Snowden’s real crime: Humiliating the state.”

On the NSA’s Surveillance Program: The Brown, Muslim, South Asian Elephant In the Room–or On the Phone

A frequent response of those untroubled by the revelations of the NSA program is “If you have nothing to hide, you have nothing to fear.” Perhaps we need to translate that phrase, along with the relative colorblindness through which the entire series of revelations has been scrutinized, as “If your last name isn’t Khan, and you have no family in Pakistan/India/Iran, etc., you have nothing to fear.”

The revelations of NSA’s collection of “metadata,” as cybersecurity expert Susan Landau explained on Democracy Now is, in fact, even more invasive than actual content collection. She gives an example of how that can be the case: Even if all the NSA does is trace the one or more calls from your home to your doctor on a day when you would normally be at work, followed by one or more calls from your phone that is now located at the doctor’s office to your family, that information strongly suggests that the content of the call was bad news.

Similarly then, if the NSA collects metadata of all calls and online traffic in the US, they are probably much less interested in an person living in New Paltz, NY who calls Barcelona 8 times a week than they are in biweekly calls from an Indo-Pak restaurant owner in Edison NJ to a “terrorist-heavy” locale in Pakistan—say Waziristan. Clearly, in both cases, the pattern reveals the obvious: that both the NY and NJ residents have some connection to folks in the receiving nation. But what does it tell the NSA about who they are? To judge from the NSA’s datamining project, the intensity of NSA surveillance is heavier in Pakistan than in Europe. Thus, even if the calls from New Paltz are to a terrorist cell in Barcelona, it seems more likely that the calls to Waziristan (say, to the restaurant owner’s mother and brother and his family) will be more suspicious—of course due to the US’s framing of where the War on Terror must be waged.  Still, the latter would be, as Marcy Wheeler discusses in a related issue, ‘false positives.’

What is the starting framework that informs the NSA to target your call? That folks with close/frequent connections to Pakistan should have their calls monitored? That these same folks have an increased likelihood of being terrorists/sympathizers? Or, alternately, that if one is an Iranian migrant, from a family that left sometime around the Revolution, yet retains close friends who work for the Iranian state (even as low-level civil servants), then their calls should be the subject of targeting, because as DiFi has now announced, Iran is a terrorist state?  Or, as DiFi has also stated, it allows the state to keep records of people who become terrorists later (a la Minority Report).

I can hear the liberals now: “Of course, there she goes, making it all about race again.” Um, no. The NSA is making it about race/religion/ethnicity –as these are uniquely combined in the conceptual category of ‘Muslim Terrorists.’ Other branches of the state have long established that terrorism is a unique category that, while defined race-neutrally as having to do with international or domestic political violence targeted against the US government or its citizens, is almost uniquely and singularly applied to Muslims. We’ve seen evidence of this at other levels of government, as in the case of the NYPD’s surveillance of Muslims—in NY, CT, PA, NJ and internationally. Most recently, we saw this assumption with the immediate rush to assume that a Saudi national that fled the Boston bomb blasts must have been the person who set them—before he was cleared the next day.

If this is the framework that underlies the massive dragnet, then I’m hardly the one making it about race. Meanwhile, as is so often the case, Marcy Wheeler and Rayne (writing at emptywheel.net) have each been presenting some of the most careful and detailed analysis of these programs.  While the PRISM program is limited to collecting data from non-U.S. persons (and what that means is still unclear: does US person include non-citizen residents from India/Pakistan/Iran, etc. residing legally?), as Rayne asks

Does this mean that all communications between individuals who do not have an Anglo-Saxon name are likely to be sniffed if not collected?

Does this sketchy “(foreign) + (less than 3 hops)” approach executed by humans explain known false-positives? Could the relationships between the false-positives be as tenuous as shopping at the same store? What happens in the case of targets possessing a highly common name like “Ahmed” — the equivalent of Smith in terms of frequency among Arabic surnames — in collection so large it could be called a dragnet?

As some have pointed out, some of these details are hardly new, although the names and scope of the program have changed. As far back as 2005 (yes, under an order signed by then-President Bush), USA Today was reporting details of the NSA’s data collection, warrantless wiretapping, and telecom companies turning over data to the feds. It’s also true that there was hullaballoo about it (though not as loud in mainstream media) by those who are labeled hardcore “privacy freaks,”—folks like the ACLU, etc.  At some level, we may not have heard that much ‘new’ information—but between Edward Snowden, Laura Poitras, Ewen MacAskill, and Glenn Greenwald, we now have unquestionable, tangible, proof that the intelligence dragnet has been extensive and long-standing even after Bush’s executive order was rescinded.

Ultimately, the political celebration of NSA’s surveillance programs appears to rest on the same old tired flackery parroted by Lindsay Graham: “I don’t care if the NSA collects my data.”  Of course, Graham doesn’t care. Of course, DiFi thinks NSA data collection is crucial to catching terrorists. Of course, white suburban soccer moms are more interested in the intrigue of Snowden’s (ex?)girlfriend. Why should they care? They don’t worry that they will awake some morning and find themselves on the wrong side of the state—and certainly not because ‘they’re not doing anything wrong,’ but rather because they’re not the wrong color, the wrong religion, the wrong ethnicity, the wrong family (Remember Former White House Press Secretary Robert Gibbs on 16 year old Abdulrahman Al-Awlaki’s death? “He should have been born to a far more responsible father”). But of course.

That’s why Lindsay Graham, DiFI and the white burbie housewives think that NSA surveillance is a great idea. They’re not politically vulnerable (okay, that’s an understatement). They’re officially in favor of the War on Terror. And certain under this Administration and the previous one, their calls to the doctor and to family (or even Graham’s hypothetical call to Waziristan) are not registering as the ‘suspicious’ activity that the NSA is looking for.

As I’ve said before, this all comes down to a familiar form of American privilege:

[T]he privilege of not having to know (or know about) foreign nationals or feel particularly obliged to them, or know about the harms done to them, simply because the wars, jingoism, and aggressive foreign policy of the US empire won’t affect you.

The other side of the NSA leaks has to do with what we know or can infer about the profiles of people who get top-security clearance. If the NSA’s dragnet is designed to look for ‘suspicious’ activity, then besides being directed towards foreigners and foreign threats—it should also be looking for people like Snowden (of course I’m not endorsing this—just considering the logic of the hunt): seeming ‘one of us’ kinda guys: conservative, a believer in American ideals as decided and executed by the US government, a former troop, a “regular guy” with top national security clearance. Who, as it turns out, doesn’t like what he is coming to learn in the course of his work, and is beginning to take serious issue with the size and scope of the project. Except that all the national security surveillance in the world didn’t catch him before he flew to Hong Kong to meet with reporters and turn over evidence of these secret slides that document an out-of-control surveillance program. Whoops.

As Marcy Wheeler also points out, we need to question the success of such tracking programs if ‘success’ is defined as catching David Headley, suspected facilitator of the Mumbai attacks after 166 Indians are killed, or as Floyd Brown points out, catching Maj. Nidal Hassan after his killing rampage, etc., etc.

That again raises questions about whether the national security apparatus is working—or whether it merely is a foundational aspect of the ‘architecture of oppression,’ that Snowden refers to. But that will be the subject of another post.

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A version of this piece was published at http://www.salon.com on June 14, 2013.

A “Roadmap” to Restoring Our Constitutional Liberties

Hi, folks–FS here. Apologies to followers of this blog for not having posted for a while. The term knocked the wind out of my sails, as the saying goes. I hope to have a new piece sometime in the next day or so. In the meantime, TransEx blogger Robert E. Prasch proposes a set of reforms to address the latest wave of news concerning NSA leaks and the general encroachment upon Constitutional protections.

A “Roadmap” to Restoring Our Constitutional Liberties

Robert E. Prasch

From Bush to Obama: Continuity You Can Believe In

Edward Snowden’s revelations have collectively stripped away the last shred of hope that the Obama Administration or the Congressional Democratic Leadership have established or intend to establish any meaningful changes from the dangerous precedents laid down by the openly and unabashedly anti-Constitutional Bush Administration. Indeed, the actions of this Administration arguably represent an even greater betrayal of American values, as they have provided the imprimatur of bi-partisanship to the shredding of our long-standing Constitutional rights. Unsurprisingly, the Obama Administration now finds that its greatest cheerleaders and apologists are the former consigliore of George W. Bush’s disgraced Administration. No less than former White House flak Ari Fleischer has happily tweeted that “Drone strikes. Wiretaps. Gitmo. O[bama] is carrying out Bush’s 4th term.”  The Administration’s newfound friends confirm the old adage, “If you lie down with dogs, expect to wake up with fleas.”

How bad is it?  Consider the stance now being taken by The New York Times, a newspaper that once worked hand-in-glove with the Bush Administration to amplify its pro-Iraq War propaganda and then, less than a year later, cooperated in covering up that same Administration’s massive and illegal domestic wiretapping program until after the 2004 elections were safely over. Yet these new revelations are so bad that the Times, despite its long and pitiful record of subservience to executive power, claims to be shocked. Its editors have concluded that the Obama Administration “has now lost all credibility on this issue.” (The phrasing of the sentence suggests that the Administration retains credibility on other issues. We can only speculate as to what issue or issues they have in mind. Prosecuting fraudulent bankers? Supporting meaningful financial reform? The 49 State Mortgage Settlement? Closing Guantanamo? Renditions? Bush-style “Free Trade” Agreements? Drone Warfare? The restoration of due process of law to Americans that the executive branch suspects of terrorism? But I digress). In the same editorial the Times also, and correctly, dismissed Sen. Dianne Feinstein’s pathetic justification of the these massive surveillance programs as “absurd.” Happily, they refrained from implying that Sen. Feinstein retains credibility on other issues.

What Should Be Done?  Lessons from the Democrats’ Undermining of “Financial Reform”

But, one might ask, how should we proceed?  This is an important question.  While it is impossible to formulate a detailed answer so soon after these revelations, it is not too early to sketch out a strategy. As we consider our way forward, it would be useful to remember the hard lessons learned in the course of an earlier episode in which the Obama Administration and the Democratic Congressional Leadership felt compelled to act in a situation where “success” would mean taking substantive action against their largest donors, their personal ambitions as politicians, and their deepest political instincts as so-called “Centrists” or “Clinton Democrats.” That issue was the reregulation of the financial system in the wake of the greatest financial debacle since 1929. The bill that emerged, a veritable monument to doing nothing while presenting the appearance of attending to the public’s interest, was the Dodd-Frank Act of 2010.

Let us briefly recall how that process unfolded. Immediately after the crash occurred, the public was repeatedly told that the debacle was the consequence of a “panic,” and for that reason we should rest assured that nothing was wrong with either the nation’s financial system or its most prominent firms. All that was needed was some “temporary liquidity,” after which all would be well. Remarkably, Timothy Geithner’s Treasury Department and the Too Big To Fail banks never wavered from this story, and regularly deployed “creative accounting” to support it.  To their regret, the public failed to be persuaded despite the best efforts of the financiers, their kept politicians, and industry-friendly regulators.

Seeing that this initial ruse had failed, their second ploy was to stall for time. To that end, they argued that the system was “complex,” and for that reason “rushing to enact reforms” would be unwise. Time would be required, and the crisis would have to pass, before the nation should even start to consider reregulation. Translated into plain speaking, the Administration and its Congressional allies wished to postpone any push for reforms until such time as the public’s outrage had died down and Wall Street’s political hegemony had been restored. Massive and ongoing bailouts greatly facilitated the latter goal. As to the former, American incomes continued to decline, unemployment remained high, housing prices continued to tank, and constituents remained angry.

With the 2010 mid-term elections approaching, and with the Democrats dominating Congress for the two years immediately following the Crash of 2008, it became evident that the Party leadership would have to do “something” if they were to retain any standing with a public whose anger remained palpable. This was the basis of their third and final ploy – passing a regulatory reform bill that was designed to fail, conjoined with a public relations blitz proclaiming a great victory that would end Too Big To Fail while greatly stabilizing the financial system and its most prominent firms. In Washington, appearance is substantially more important than performance. This, in the final analysis, explains why the Congressional Democratic Leadership gave the nation the Dodd-Frank Act instead of substantive financial reform.

Looking to the Future: The Obama Administration vs. Meaningful Reform of Surveillance State

With the above understanding of the politics of futility in mind, we can now turn to formulating a strategy for achieving some meaningful and lasting reforms. We can begin with their first step – denying that a problem even exists.  Those following the news will have observed that the Administration and its Congressional allies have already embarked on this line of argument. The President and leading Democratic Party senators, most prominently Harry Reid and Dianne Feinstein, are already telling us that this week’s revelations are “overblown,” that it is all “hype,” and that “nothing is amiss,” etc. Check that box.

As they are unlikely to be believed, we can anticipate that they will soon move on to phase two. Again, and in parallel with the effort to not reform the financial system, we should expect to be told that intelligence-gathering programs and agencies are “complex,” that their “mission is sensitive,” that we need to “slow down,” that we must “deliberate carefully” so as to bring about “the best possible reform”, etc. As a wrinkle on this theme, we should expect to see a major effort made to distract us with long-running debates or disputes over the personality or quirks of Edward Snowden (In this, David Brooks has taken the lead with an Op-Ed that is idiotic even by his standards, and that is really saying something). The point of such stalling techniques, as it was with financial reform, is to allow the scandal to become “old news.” If this should come to pass, Congress will be able to talk the issue to death, and perhaps even get away with doing nothing at all (the failure to reform the gun laws despite the public’s outrage after the massacre of schoolchildren and their teachers in Newtown nicely illustrates the power of this approach).

A time-honored variant of this venerable strategy is to form an “official” study group to examine reforms. Assuming that Congress and the Administration pursue this approach, we should expect a “bi-partisan” commission featuring “sound” persons who can be relied upon to discover that nothing is amiss. Ideal candidates for such a commission would be Sec. of State John Kerry, Sen. Dianne Feinstein, former CIA and DoD heads Leon Panetta and Robert Gates, and any of a large number of potty-trained “experts” from the usual beltway think tanks, all of whom will solemnly promise to “look tirelessly into possible abuses.”  If, thereafter, sufficient political pressure remains, expect a bill that is long, complicated, and vaguely worded. For performance, it will call for intelligence agencies to be monitored by, at most, deeply conflicted parties in opaque processes. In short, it will be legislation resembling Dodd-Frank.

Four Guidelines for the Achievement of Meaningful Reform

The failure to reform Wall Street provides several lessons that collectively point to four necessary components of any successful strategy to bring our nation’s bloated and overreaching intelligence agencies (and their contractors) to heal.

First, and of most importance, it must be understood that the Obama Administration and the Democratic Congressional Leadership will resist any and all meaningful reform with every means at their disposal. To that end, we can expect them to continue to prosecute and vilify whistleblowers while libeling critics and reformers. They will also continue to stir up fears that are, to be blunt, as beside the point as they are beneath the dignity of anyone who thinks of themselves as the citizen of a free nation.

Regrettably, such fear-mongering is so prevalent that it must be addressed directly. Since 9/11 we have been repeatedly told that giving up our liberty and privacy is worthwhile as it enables the government to “Keep Us Safe.” Those who make this argument should be reminded that the best-fed, healthiest, and safest animals live in zoos. Seriously, folks, living and thriving as a free people in a free nation involves a degree of risk. But is there anyone out there who thinks that it isn’t worth it? Everyone who has ever volunteered for the armed services has already answered this question. I would submit that it is well past time for the citizenry at large to honor the commitment of our young servicemen and women by agreeing to live with the immeasurably small risks we must shoulder to live as free people in a free nation. Let us recall that our heritage is not one of bowing to fear. Two hundred and forty ago Americans willingly took up a substantial risk. They fought the world’s largest empire so that they might live as citizens rather than subjects. Does their sacrifice mean nothing to us today?  Has July 4th been reduced to one more great day for a BBQ?

The second condition we must take into account is the fact that the public’s attention span is limited.  No one is more aware of this than the Administration and its Congressional allies. To achieve meaningful reform we cannot allow the process to be diverted into endless “hearings,” “commissions,” “inquiries,” etc.  This is especially the case if these hearings are exclusively staffed by the usual suspects. We can only allow such an investigation to take place if it is short in duration and led by former Senator Russ Feingold or one of the Oregon Senate delegation.  Otherwise, forget it.

Third, we must demand simple laws featuring bright lines and clear performance criteria. Rules that are simple and clear can be easily and readily monitored by any interested citizen or group of citizens. An example from finance was the Glass-Steagall Act of 1933 that separated investment banking from commercial banking. If you were in one business, you could not be in the other. Full stop. It was simple to state and simple to regulate (the lines only became grey after the banks induced the Federal Reserve to make them grey, but that is another story).

In spying, we developed equally simple rules after the Church Committee hearings of the 1970s. NSA and CIA could conduct their activities overseas, but not in the United States. Americans could not be investigated without a warrant from an independent judge (although the secrecy granted to the FISA court and its opinions must be wholly and radically rethought). Again, we want simple laws that are easy to monitor and thereby difficult to elide or evade.

Fourth, we must be ever mindful that the intelligence agencies being subjected to reform will not like it and can be expected to put up a powerful and unceasing resistance. The reason is simple.  As with the equally pathetic “War on Drugs,” there is a massive amount of easy money to be “earned” in the course of spying upon one’s fellow Americans.  Moreover, it is a line of work where one is primarily rewarded for who one knows, not what one knows. What this means is that meaningful reform will undermine comfortable and highly lucrative careers in the “Making Us Safe” business.  With so much at stake we should anticipate vigorous resistance, not limited to highly damaging smear campaigns against any persons or groups pushing for meaningful reform. Also, in the event that binding rules are passed, the leadership of these agencies will almost immediately begin reaching out to their political allies, and especially to their contractors, to have any substantive rules repealed, “reinterpreted” (a task that now appears to be a specialty of the Office of Legal Council), or reworked.  Happily, while blocking the ability of these agencies and their allies to unravel reforms may be difficult, it is not impossible. But, success requires that we be pro-active.

The place to begin is by significantly, and I do mean significantly, reducing the resources available to these agencies. This immediately shrinks the size of the prizes to be gained and thereby the interest in going after them. And let us be clear, these agencies are effectively the “anchor firms” of enormous private sector industries with substantial political reach. Any reform that fails to reduce the bloated budgets of these behemoths will not stick for long. As speed is of the essence, the process of cutting back should resemble the manner with which one deals with a massively overgrown hedge. Begin by hacking back the overgrowth with large indiscriminate swings. Only after the bulk of the trimming is accomplished should one return to the task with an eye to shaping its appearance. So, for example, cutting NSA’s budget by 33% the first year, followed by another 10% over each of the next three years would be a great start. Again, the point of such cuts is to substantially reduce the political power of these agencies and the innumerable contractors who feed at the trough of their porcine budgets. Half measures will be insufficient if we are to get the genie back in the bottle. I should add that publishing the actual budgets of these agencies is essential. Despite the shrill claims that will undoubtedly be made to such a suggestion, publishing these budgets will in no way or manner put the public at risk. Why? Because in this world of doubt and uncertainty one of the few things about which we can be sure is that the Chinese, Russians, Israelis, and all major European powers already know just how much money each of these agencies have been allocated. Only American citizens remain in the dark.

The CIA, we should briefly note, is a qualitatively different problem.  The reason is that they field what is essentially a small army.  The problem with this force is that it is solely and exclusively accountable to the President. That Presidents like having a small army that they can use on a whim should not come as a surprise. Nevertheless, an army that can be deployed at the behest of a single individual goes strongly against every known or imagined notion of  “checks and balances.” To make matters worse, our experience with CIA special operations has in no way or manner validated this Constitutional loophole. The record has not fluctuated between good and bad. On the contrary, it has been a continuous string of disasters. The blowback and loss of moral authority that the United States has experienced from CIA misadventures in Guatemala, Iran, the Bay of Pigs, Cambodia, Afghanistan, El Salvador, the Iran-Contra scandal, “Black Site” prisons, rendition programs, ongoing Drone Wars in at least a dozen nations, etc., have been individually and collectively intolerable.  It must end.

The CIA’s record of repeated failure suggests a problem, one that runs to the core of that institution and its lack of accountability. Which is the reason that it must go. In 1991, Senator Daniel Patrick Moynihan introduced the “End of the Cold War Act” that would have abolished the CIA altogether while moving its (very) few useful functions into the State Department. He tried again in 1995 with the “Central Intelligence Agency Abolition Act.”  Now would be an excellent time to revisit this wonderful idea. Moreover, the successful closing of that agency would send a clear message – one that is nicely designed “pour encourager les autres.” To repeat, the CIA does not need to be reconfigured or reformed, and its leadership does not need to be reviewed or reshuffled. It needs to be shut down. Period. It is of particular importance that its special operations branch be closed. Again, not reformed or recalibrated, but closed. If the President wishes to have a war with another nation, or a particular group within another nation, let him or her argue for and receive explicit Congressional authorization.

Related to this is another essential precondition to the achieving, and especially the sustaining, of substantive reform of our intelligence agencies. We need to eliminate any and all “contractors” (a.k.a. mercenaries) from the payrolls of every branch of the United States government. This includes the Pentagon, all intelligence agencies, and the State Department. The rule should be simple – if you are authorized to carry or operate a weapon in the service of the United States government you will wear an appropriate United States military or police uniform (unless you have been specifically and temporarily assigned to undercover duties).

Likewise, everyone working for an intelligence agency should be an employee of the United States government and earning a government salary. This is important for three reasons. The first is that private firms can and do give political donations, lobby our representatives, and provide our elected officials and their staffers with cushy post-electoral sinecures. Now, it is one thing to lobby for a padded no-bid contract to provide copy-paper to the Pentagon, but it is another thing altogether to lobby for the initiation or continuation of a state of conflict. The second reason is that government employees are considerably harder to fire than private sector employees (although the rules are substantially more lax in areas such as intelligence and Homeland Security – a fact that must be changed). With greater job security, lower-ranking employees who witness wrong-doing have more protection in the event that they attempt to talk to superiors, inspector generals, or members of Congress about what they have seen. The third reason is that uniformed military and intelligence agents are paid considerably less than the fat-cats working for their private-sector counterparts. Contrary to the collective wisdom of the District of Columbia, this is not a fact to be deplored. On the contrary, it is to be proclaimed from every rooftop. When these professions earn below “market rates” we can be certain that everyone who opts for the job must be motivated by something other than the salary. Being “believers” in the importance of their mission, such persons will be more likely to speak up or, as a last resort, become whistle-blowers in the event that the leadership of their agency is heading down the wrong path. Whistle-blowing, as we have seen, is often the last – and for that reason a critical — check on out of control government programs and agencies.

So, to reprise, a successful strategy to restore our Constitution must, (1) recognize that the Obama Administration and its Congressional allies are firmly on the wrong side of the issue, (2) push for immediate and substantial reforms without allowing the process to be stalled by talking it to death in Congress or waiting around for pointless reports from commissions staffed by the usual Washington sycophants, (3) place an emphasis on clear, simple, transparent, and easy-to-monitor rules, and finally (4) significantly defund the beast, with special attention to eliminating the CIA and all outside “contractors” and mercenaries. By design, this list avoids speculating on the specifics of the rules we will need to put in place to restore our privacy and liberties against an overreaching government. Nor does it cover what penalties should await those who violate such rules. But achieving and sustaining meaningful reform requires more than good ideas, it needs a strategy for getting there. If the disappointing outcome of the effort to reregulate the financial system has a silver lining, it is that it has given us some insight into how we should proceed against well-entrenched interests.

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Robert E. Prasch is Professor of Economics at Middlebury College. Click here to read more of his posts.

The Marathon Bombings and the Lockdown of Boston: Was it really a Vindication of the Surveillance State?

 By Falguni A. Sheth and Robert E. Prasch

 

The sub-text of the official state view and media coverage coming out of Boston over the last week carried a crucial message to the American public: it was a vindication of the Counter-Terrorism Surveillance State and its massive expenditures and the associated erosion of American constitutional liberties.

To that end, the several days since the bombing of the Boston Marathon showcased a mesmerizing display of reality television mediated by the unquestioning officiousness of the fourth estate.   On vivid display was “proof through performance,” a validation, that the laws passed and massive expenditures incurred over the last decade were essential to the state’s  “protection of the public.”

Multiple banners flashed across the scene with short exciting spins about the status of the manhunt for the bombing suspects; they were accompanied by endlessly repeated images of Boston and Watertown police, SWAT teams and FBI officers, all carrying a dazzling array of complicated weapons, bordered by police cars.  There wasn’t a civilian in sight, since they all appeared to have accepted the ‘command’ (which was in fact a request) to stay inside. These images alternated with breathless images of reporters ‘at the scene,’ filibustering inanely, occasionally offering proud announcements about how they were asked to ‘move back’ as the focus of the police search for the suspects shifted. It was as if they were children proudly reporting how they were asked by their teacher to help clean the blackboards.

The past decade has seen Presidents, politicians — conservatives and liberals alike — champion pre-emptive policing laws such as the USA PATRIOT Act, FISA, NDAA 2012 and 2013, to TSA security practices and searches, to “See Something, Say Something” practices—all in service to fighting the War on Terror.  As a cable-news talking head cooed Friday morning: “There are cameras and social media everywhere. There is nowhere to hide!” That statement seemed indisputable: store cameras, street cameras, private cellphone cameras and videos could be integrated to give an astonishingly wide record of the tens of thousands of people who were at last Monday’s event.  Yet, the most important truth of that day seemed to be lost in the gush of self-congratulation: the explosion of the bombs confirmed that a massive extension of the surveillance-state did NOT protect people in Boston.

Remarkably, this message of the paramilitarized surveillance state was in no way challenged merely because it was inaccurate. By the time Massachusetts Governor Deval Patrick ended the “shelter in place” request, the second suspect had still not been found. Suddenly, the Boston public was supposed to believe that they were magically safer after the lock-down ended than before.   But lest one come to conclude that this suggested a failure of the militant and closely watchful surveillance state—Rachel Maddow, Erin Burnett, and other cable news heads happily rushed to its vindication—by triumphantly exclaiming the insightful fruits of the years-long “See Something, Say Something” campaign by the DHS.

The rough description that the media had in common was this: A guy walked out to his boat to smoke a cigarette, saw something moving, and lifted the tarp—only to find the injured suspect. At which point, he retreated and called the police!  Would the boat-owner have acted differently prior to the “See Something, Say Something” campaign?  Never mind.

Indeed, the vaunted magic of (decades-old) infrared technology, increased surveillance, and the absence of restraints on law enforcement, of this massive martial state could be all be justified through the lens of the state itself, a breathless and supine media, and an ostensibly cowering but now relieved public. Yeah! The War on Terror is so successful! See?

But the show did not end there.  As Erin Burnett crowed: “They took him alive! This proves that there is justice in America! Innocent til proven guilty.” Despite its nonsensical meaning, this oblique message was reiterated by the President, who cautioned us against a “rush to judgment”—certainly about groups of people. Apparently, “[t]hat’s why we have courts.”  Hmmm. That’s going to be news to some folks still languishing in Cuba.

Not to be outdone by an illusory call for order by a President who has supported multiple renewals of FISA and pressured the Senate into the approving an expansion of executive power to arrest and detain any suspected terrorist (US citizen or foreign national) anywhere in the world (in NDAA 2012 and 2013), Sen. Lindsay Graham insisted that we were seeing proof that the homeland was the battlefield. And indeed, it’s hard to disagree with him—even if one is critical.  Moreover, according to Graham and Sen. McCain, even a 19 year old naturalized citizen (vaguely fingered as Chechnyan and Muslim) CAN and should be treated as an enemy combatant.

What further cements this view of the Homeland as a Battlefield– is the public, collective, and casual insistence that a 19 year old should not be read his Miranda rights—because an asserted “public safety exception” can be invoked in view of the fact that other IED’s or pressure-cooker bombs might have been set.  With this, we are halfway to Alan Dershowitz’ favored fantasy: next, let’s torture him–because we ‘know’ a bomb might be set somewhere by him that threatens to hurt Americans. However—shockingly–even Dershowitz refuses to be fear-mongered, arguing instead that that the only logical outcome was a civilian trial, insisting that “It’s not even clear under the federal terrorism statute that this qualifies as an act of terrorism.”

Moreover, there was nearly no element of the recently reinforced surveillance state that contributed to the capture or killing these two suspects.  As an example, let’s assume every detail of the attack is the same except that it occurred in 1977 (to pick a random date prior to our ubiquitous Counter-Terrorism surveillance state; remember how we used to have “bad guys” before September 11?). If the “bad guys” had put together such a plan in 1977, would events have unfolded any differently?  Would there have been a lot of photography at the finish line of such a prominent public event?  Yes, although in the pre-digital age, it would have taken a little longer to gather and sort through the pictures.  Hence, this aspect of this past week’s outcome can’t be ascribed to the massive expenditures and “federalization” of “homeland security,” but rather to a change in consumer electronics.

Would the two brothers have been flushed out by the police response to a nearby and unrelated robbery that led to the tragic shooting of a MIT police officer, the carjacking and ensuing chase that ended with the shootout in Watertown?  It is hard to credit this sequence of events, which were initiated by a mere coincidence, to the success of the modern surveillance state.  Would the initial shootout in Watertown, the escape of one of the brothers, and the eventual spotting of blood on the side of a boat and the calling in of that observation have unfolded in more or less the same way in 1977?  Probably.

Where is the added value?  In what way have the massive expenditures, intrusive surveillance practices, and stripping away of our liberties been vindicated by the events of this past week?  In fact, no one can truthfully say “Aha!  This is where these new practices have made a difference!  Thank goodness George W. Bush and Barack Obama have so little regard for the American Constitution or everything would have really gone badly at that particular point in these events.”

What we witnessed was a tragic — but sadly – too familiar sequence of events.  In a nation of over 340 million, we have a few demented or damaged souls with real or imagined grievances that cause them to wish to harm people whom they do not know.  We also have good, brave, and competent local and state police forces that are able and willing to solve these crimes.  It was true back in 1977—and long before–and remains true today.

So what in fact did change? We now have a “War on Terror” that permeates every public news event and action. The immediate leap to the familiar “Terrorists In Our Midst” narrative is facilitated and amplified by a bovine mainstream media amped up by endless alerts issued by a Department of Homeland Security and two Presidential Administrations about insane foreigners here, there, and everywhere. In other words, what’s changed is the presence of a fear-mongering narrative of the War on Terror, along with the billions in expenditures that are used to justify it, that reframe a centuries old story about crime.

The events of the past week in Boston do not vindicate the rise of the Homeland Security bureaucracy and certainly do not vindicate the stripping of our liberties, the shutting down of a major city, or the instantiation of a police state. But they certainly affirm the future as it was perceived by George Orwell.

__________________________________

This article has been republished on Salon.com.

 

GiTMO Prisoners, Their Hunger Strikes, and Our Humanity

The Guantanamo Hunger Strike Should Remind Us of Prisoners’ Humanity

—and Reawaken Ours.

Recently, Olga Khazan, The Atlantic’s global editor, wrote a piece doubting the effectiveness of the hunger strike being led by Guantanamo detainees since February 7. The strike, begun in protest against the prisoners’ Korans being rifled, has taken on a much larger significance: It is a protest against the continual incarceration and brutalization of the prisoners, some of whom have been there, without being charged, since the opening of prison 11 years ago. The actual number of strikers varies, depending upon who is reporting. According to a military spokesman, there are 39 strikers, with 11 being force-fed nutritional supplements through their noses. The lawyer for Shaker Amer, one of the detainees participating in the hunger strike since it began, reports that there are 130 strikers.

Khazan’s main argument is that hunger strikes are most effective when conducted by a sympathetic group. It is, in several ways, a bizarre conclusion to draw. What does it mean to say that the GTMO detainees are an unsympathetic group? Unsympathetic to whom? To that crowd for whom unilateral Executive declarations of guilt—without public charges, evidence, or trial–are to be received uncritically, much like religious faith? Or perhaps to reporters like Robert Johnson who, as Glenn Greenwald reports, clearly believes Guantanamo is a vacation paradise with first class food. Clearly, that’s not the group to whom the detainees are appealing. After all, if that were true, they wouldn’t be atrophying in frigid cells, suffering kidney and urinary tract infections from nonpotable water, worrying about whether the next beating they received from a 300 lb guard was going to paralyze them for life, or whether they would ever be released.

On the other hand, a group of people who has been detained for 11 years without being charged–with anything–is a remarkably sympathetic group for those of us who are committed to the rule of law, who object to violations of procedure, and the imperious expansion of state authority. Judging from the length of this strike, as Amy Davidson states, something has gone very wrong at Guantanamo. But something went wrong 11 years ago, and has yet to be rectified—namely that ANY populace ANYWHERE would tolerate men being imprisoned without trials, evidence, charges for any sustained period time.

Khazan is correct that the GTMO detainees will receive no sympathy from the current Presidential Administration. That is precisely the motivation to strike publicly. Since when have hunger strikers ever had the sympathy of the institutions or regimes against whom they are striking? Neither suffragettes nor the students in the Tiananmen protests against Chinese state authorities, nor anti-colonial leaders such as M.K. Gandhi ever had a sympathetic ear from the authorities to whom they were appealing.

Yet the use of hunger strikes by the above groups is fundamentally different from hunger strikes conducted by prisoners. Even though groups such as Black prisoners in Soledad State Prison in 1970 or those in Walpole State Prison in 1980 were hardly ‘sympathetic,’ their acts were publicly compelling. I would suggest that it is because prisoners are among the most reviled of populations that a hunger strike by them is such a compelling act.

It is not hard be exposed to the sheer loathing of a group who has been been caged: the image—real or imagined—of a person caged, treated like a wild animal, is an effective way to pre-empt sympathy. For many, it raises questions about the moral and intellectual status of the prisoner. They must be guilty or behaviorally unpredictable, or savage, or cruel, or ready to hurt, maim, or rape you. These are the (intended) associations of imprisoning someone—regardless of whether the punishment was meted out procedurally. The imprisoned are reduced to terrifying, dangerous creatures. We saw this in the pictures of Abu Ghraib abuse scandal, as well as in the descriptions of prisoners that came from top officials. As Major General Geoffrey Miller, in charge of Guantanamo prison in 2004, was reported to have said of the detainees:

… [T]hey are like dogs and if you allow them to believe at any point that they are more than a dog then you’ve lost control of them.

The commanding element of a hunger strike as a form of protest is precisely that it doesn’t harm others physically. That absence of harm to others is part of the hunger strike’s command to pay attention: it is the antithesis of how a vilified population would be predicted to act in protest or outrage. Instead, the hunger strike is an act of harm to oneself. It involves deprivation to oneself—of nourishment. It involves a re-orientation of oneself: towards death.

There is the another arresting element of a hunger strike conducted by a prisoner: it is plainly the last resort of a being who has nothing else with which to bargain: no other tool, no other leverage, no other allies who can advocate effectively or successfully for those who are striking. The prisoner who engages in an hunger strike uses the only means left at his disposal–his life–which ostensibly is the only leverage that he can have control over. In that imagined spectacle—communicated only through lawyers and journalists–the hunger strike reintroduces us to the humanity of a person who is—at least physically—hurting no one else but himself. It brings up associations of martyrdom, suffering, moral decisions—uniquely human associations. A third and most powerful element of the hunger strike is the insistence that this one aspect of someone’s existence—one’s humanity, one’s ‘aliveness’—will not be ceded to any other authority.

That might be why, historically, there have continually been moral prohibitions against suicide, whether through religious teachings or state policies: ending one’s life is the one thing that—in ordinary circumstances–others’ authority cannot physically compel you to refrain from. This explains why, in prisons, the relevant authorities make every effort to deny a person the ultimate decision that is available to free people—the decision to live or die.

As Jonathan Hafetz said in a recent Guardian article,

A hunger strike provides detainees with a way to reassert some measure of control over their own lives. By refusing to eat, they force the world to recognize their existence and humanity and to confront the reality of their continued imprisonment. Legal rulings can be rationalized or ignored in a way that a dying prisoner cannot.

But in fact, even that control is wrested away: Notice that I didn’t refer to one’s “aliveness” as the only leverage which one does have control over. It used to be that the purpose of the state—as understood through Hobbesian or Lockean social contract theory—was to monopolize the power to kill: In return for ceding the right to kill in self-defense, you would be guaranteed protection by the state. Part of that protection included managing and controlling the freedom of others who were a danger to you–those who broke the law—hence, arrests, charges, trials. But alongside the discarding of procedure, the state is increasingly trying to monopolize the control of one’s life (aliveness), that is, to seize the only remaining leverage that a prisoner might have—the ability to control his aliveness.

In the current moment, as the Guantanamo prisoners strike, the state is trying to misappropriate this final degree of leverage from the Guantanamo prisoners—even though they may not—yet—be successful. That is increasingly the definition of imprisonment: to have not merely your physical and political freedom wrenched away, but to have your freedom to decide whether to live–or die—eliminated. We see the elimination of the control over one’s life in supermax prisons, solitary confinement, psychiatric wards. ‘By control over one’s life,’ I don’t mean one’s ability to move or make quotidian decisions—about food, destination, associations, prayer, or speech—although those too—but over one’s actual alive-ness, for lack of a better distinguishing term.

On Tuesday, Kevin Gosztola reported on some of the abuses of Guantanamo detainees, 86 of whom have been authorized for release under the Obama Administration. His report came from Clive Smith, an attorney for Shaker Amer. Smith filed a report to an American court that detailed his conversation with his client, a British citizen, by phone. Amer has been detained without charges since the prison’s opening 11 years ago–but cleared for release twice during that time. He is a liaison between guards and prisoners, and has been an advocate for the other prisoners. Amer charges that he and other prisoners are beaten by the guards, subjected to forced cell extractions, deprived of sleep—among other forms of torture–and run the risk of having their backs broken, limbs broken. As well, they must endure the impositions of medical professionals who are trying to disrupt the hunger strike. It is a form of torture: the forced feeding through tubes that are painfully inserted through prisoners’ noses; the refusal to listen.

“Good! They deserve it,” some will say—even though these prisoners haven’t been charged or tried or have ever had any evidence shown of their guilt. And that is one of the main reasons that the news about the hunger strikes in Guantanamo are gaining in momentum. As of now, the US government brazenly refuses to listen to or release even the half (86) of those detainees whose innocence has been—at least tacitly–confirmed through their clearance for release. But the increasing attention might force it to change its position: There are reports of protests by activists in Sana’a and Kuwait City agitating for the release of the men who have been subject to unimaginable tortures for the last 11 years—and are now facing death.

The (imagined) spectacle, the panic of the military guards, and the forced feeding of 11 detainees, should make us all wonder about the casual acceptance of the dehumanization of these prisoners. This dehumanization began with their initial capture and continues with their uncharged, indefinite, infinite detention, and coming to a head now: with their continued torture, beatings, and maltreatment—all for crimes that the Executive Branch assumes but has no evidence to support. But even more, it should impel us to forcefully reject the horrific policies conducted by this administration: by protest, by legal means, by public vocal outrage.

Racial Profiling, Islamophobia, and Whistleblowers: Targeting the Unruly Threat

Revised (11:05 am/Feb. 18, 2013).

I’ve been dithering about writing this column for a while. But my Twitter feed in the wake of today’s “Up with Chris” segment about U.S. Air Force veteran Saddiq Long, an African American Muslim who has been placed on the TSA’s no-fly list in both directions, tells me it’s time.

Categorical distinctions are thought to be the cornerstone of philosophy. But there are sometimes important reasons to challenge distinctions, especially when they cleanse reality of important political implications.  Example 1: The CIA didn’t torture detainees. They used “enhanced interrogation techniques.”

As many social science and humanities scholars write, race is not biological, or physical, or about phenotype. Rather, it is ‘socially constructed,’ a once-promising notion that is now stultifying. In part, the ‘social construction’ trope is troubling because it seems to quell further curiosity about what to do with this thing (race) that doesn’t seem to have an objective basis, but which is still very real for many people. There is also the concern, which I share, that the term ‘racism’–or its counterpart, “White Supremacy”—does not address the reality that persecution, harassment, and exploitation isn’t just limited to darker people. I agree: exploitation, persecution, harassment certainly extends to poor whites and sexual minorities, and other marginalized groups—like Muslims of various backgrounds. White Supremacy also seems to ignore that people of color—like Condoleezza Rice, John Yoo, Alberto Gonzalez, Eric Holder, Carmen Ortiz…and yes—President Barack Obama can be actively involved in spearheading racism, exploitation, and persecution against people of color, among others.

Certainly, nothing here can annul the urgency of acknowledging class exploitation and marginalization of various populations. As Prof. Dylan Rodriguez and others, including myself, have discussed elsewhere, White Supremacy can be multiracial.

But there is another lens by which to view the exploitation, marginalization, harassment of various populations throughout the centuries: black, Muslim, brown, poor white, various women, sexual minorities. In that framework, ‘race’ isn’t the foundation, but the effect, of harassment. Race is about power as deployed against the vulnerable, the (much) less powerful, the scary threat.

On my Twitter feed, some disagreed with my insistence that racial profiling (as found in WoT-era policies) are not just randomly directed towards Muslims. Some wanted to insist that the same policies could easily be redirected towards whites, or that it’s a matter of coincidence that darker Muslims– not whites–are being targeted. In fact, the argument that some civil liberties proponents give for being concerned about the extrajudicial and undue profiling of Muslims—is that such policies could easily be extended to whites. Others pointed out that there are white men and women who have also been placed on various watch lists: Jesselyn Radack and late Sen. Ted Kennedy, among others. True. We can safely guess that Julian Assange and Bradley Manning have also been placed on those lists.

Others wanted to insist that because religion and race are distinct categories, “religious profiling” should be distinguished from “racial profiling.” Yet others insisted that Muslims should be profiled because ‘most terrorist acts are committed by Muslims.’  Nope. Not even if you don’t quibble with the definition of terrorism. Also not if you look at the demographics of mass murders, committed with the intent to terrorize some population.

According to Mother Jones, 44 of the last 62 mass shootings since 1982 have been committed by white men. According to UNC sociologist Charles Kurzman’s report, “Muslim-American Terrorism in the decade since 9/11,” Muslim terrorism is a negligible threat: 14,000 murders were committed in 2012 alone. Yet, fewer than 20 Muslims have been indicted annually since 9/11. Between 2000-3000 Pakistanis have been killed by U.S. drones in the last 9 years, although only 900 are defined as non-combatants. Over 114,000 Iraqi civilians have died under the false pretenses by which the US invaded Iraq in 2003. Hundreds of Muslim men have been rendered and tortured at CIA black sites.  U.S.-led terrorism is rampant.

‘Racial profiling’ (as seen in US counter-terrorism policies as well as immigration-regulation and drug wars,) does accord with certain populations being targeted: darker Muslims, African Americans, Latin@s, (Muslim and non-Muslim South Asians and Arabs, Iranians, Palestinians).  Policies like TSA watch and no-fly lists also include some relatively upper-class whites who used to work for the CIA or NSA.

Obviously, we don’t identify all these groups as “races,” per se. Some are ‘religious,’ ethnic, sexual, national, cultural, or class-based groups.  Yet, most of us would be hard-pressed to disagree that under the War on Terror, those groups are more often profiled—for any number of dubious reasons. But these reasons remain largely unknown. As attorney Gadeir Abbas said about Saddiq Long, the reasons he is on the no-fly list are known only to the FBI and God.

So what do they all have in common?  They are perceived as unruly threats. Some might have customs that are hated or feared (being visibly Muslim or not ‘generically’ American). They might have accents, appearances and comportment that the population has been taught to fear (dark skin, hoodies, baggy low-hanging jeans, beards, turbans, hijabs).  Or they are unruly because they criticize/challenge the state (as do dissenters and whistleblowers).

Criminalizing the unruly publicly (and under the pretense of public safety/national security) “clarifies” the good guy-bad guy distinction. It also perpetuates the stigmas that made them vulnerable and hated in the first place.  Which makes them even more vulnerable being kicked outside the gates of the city, so to speak. But look on the bright side: at least this way, the “patriots” know exactly where to stand. Behind the state.

There is little random about this. Those who are stigmatized or feared or hated are likely to be targeted. Those who are wealthy are less likely to be targeted. Those who vociferously champion or parrot the state’s policies are less likely to be targeted. Those who have powerful political connections are less likely to be targeted.

There is nothing universal about this—not all people are equally vulnerable at any given time.  Dick Cheney is hardly about to be placed on the TSA’s watch/no-fly list. And if he is, as Sen. Ted Kennedy was, it will be loudly and publicly announced as an error. Some whites will be vulnerable—if they are critical enough and loud enough for the state to hear. If they are poor. If they are part of a stigmatized group. Most whites don’t need to fear. Ditto for many (not all) wealthy brown and black people who closely conform to a generic, non-threatening, stereotype of “American.”

Racialization is the effect, not the cause, of stigma, vulnerability, and state-led targeting of unruly peoples/groups. Most often, groups are vulnerable because of their darkness or foreignness or relative poverty. We have seen the pattern of targeting the unruly threat over and over again: Enslavement of West Africans; Jim Crow; one-drop rules; Chinese Exclusion in the 19th century; the internment of Japanese migrants and Japanese-Americans in the 1940’s; the criminalizing of protesters through the second half of the 20th century; drug wars; the War on Terror.  But also vulnerable are those who can encourage the public to question the state or other authorities.  Think Socrates, Rosa Luxembourg, Rosa Parks, Dr. Martin Luther King, Jr.. Or white or upper-class whistleblowers and political dissenters such as Thomas Drake, John Kiriakou, Julian Assange and Bradley Manning.

There is little accidental about these events, except the precise event that will precipitate the fear, and thereby ‘compel’ the state to clamp down and tame the ‘threat.’

What does all of this have to do with Saddiq Long? Was he placed on the no-fly list because he is African American? Because he embraced Islam? Because he decided to make his post-Air Force life in the Middle East? Probably all of those are relevant to his stigmatization and political vulnerability. Would he still be on the no-fly list if he weren’t Muslim? If he were white?  I don’t know.

But I doubt that “religious profiling” is different from racial profiling in this context.  Among other reasons, those who fear Muslims don’t know jack about Islam; but they do know that they despise what Muslims supposedly represent. If we understand racialization as the systematic attempt to humiliate, dehumanize, and marginalize those who (baselessly) signify a threat to–a state or another population, then race is about the kind of persecution that applies to a range of populations across a range of situations. And it is also possible to understand how a multi-racial White Supremacy is possible.

It makes sense to point to the overlap between GWoT policies and the racial profiling of certain groups. But race doesn’t always pertain to the 3—or 5—or 7—or 42—‘races.’ Rather it points to those who are seen as unruly threats who are vulnerable to the state’s wrath. And that unruliness is hardly accidental or random.

White Papers, Targets, and U.S. Citizens: What’s All the Fuss?

Revised 6:59 am.

The last few days, the mainstreamish media and Congress have professed shock and outrage over the Office of Legal Counsel white paper and its ambiguous rationale on President Obama’s targeted killing program. But, really, there’s very little new about it, save some ostensible rationale that will facilitate a long-standing politics of execution.

But, much news media and Congress (except for DNC Chair Debbie Wasserman-Schultz) have known about targeted killings for years. As Tara Kelvey and Josh Begley have noted, the New York Times has covered drones for years, even when they have ostentatiously skirted around the reasons for those killings. Similarly, the Brennan hearings were a perfect place for Congress to engage in, as Jeremy Scahill called it on Up with Chris this morning, “Kabuki oversight”—namely, the spectacle of watching senators like Dianne Feinstein and others to act as if they were overwhelmingly outraged by the non-responsiveness of the CIA, OLC, and WH to their repeated requests for an answer to the question of the rationale for targeted killing without oversight.

Why then are they suddenly exercised over it now? I’m puzzled by the fuss, given the way the sudden controversy is framed is shock and horror that a U.S. citizen might be fingered for death if they are suspected to be an “imminent” threat to America. So, suddenly—what—everyone cares that U.S. citizens Anwar and Abdulrahman Al-Awlaki , Samir Khan, and Kamal Derwish were killed?

Why weren’t our esteemed media and Congress that exercised about the provisions in NDAA 2012 that authorized POTUS to arrest and detain U.S. citizens (um…and foreign nationals) anywhere for posing an imminent threat?

After all, many more U.S. citizens are likely to be intercepted and indefinitely detained by the following NDAA 2012 provision (the one that Obama insisted be included on threat of veto. Remember?):

Subtitle D–Detainee Matters
SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
 
    (a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
    (b) Covered Persons- A covered person under this section is any person as follows:
    (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
    (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

The rest of the clause is just as interesting.

After the November elections, Sen. DiFi tried an interesting re-do in NDAA 2013 with an amendment that limited indefinite detention to non-citizens—but you’ll remember that it ‘mysteriously disappeared.’  If anything, U.S. citizens are much more vulnerable to the arrest and indefinite detention provisions from these bills than drones strikes. Right?

Mind you, it is heartening that even ‘forward leaners’ like Kristal Ball are so worked up over the undue authority that the WH/DoJ/OLC is taking to dilute the grounds by which they justify the targeting of U.S. citizens.

But the issue with drones is not just that they target U.S. citizens. But that they miss. And kill thousands of non-US citizens. And thousands of innocent civilians. And hundreds of children. On other sovereign lands. And turn peaceful foreign nationals into hostile, understandably vengeful, potential allies of organizations that the US has deemed to be our enemies.

There are compelling reasons to review the underlying rationales and “logic” of an Administration that wants to maintain a thick shell of secrecy around policies and authoritarian practices as heinous as killing U.S. citizens. The urge to dissect these policies is especially important as we consider future elections in relation to the executive authority that has been expanded for future presidents to exploit.

While the white paper is in the news, it’s worth taking advantage of the timeliness to explore other, older, facets of the Bush and Obama Administrations’ expansion of power.  In the short run, U.S. citizens stand to be much more vulnerable to the provisions of NDAA 2012 than the targeted killing rationale of the white paper.  This is especially true of Muslim-American men, who have been vulnerable to Sec. 1032 of NDAA 2012 since the endless, borderless, War on Terror was declared. And have been vulnerable to much, much, much, muchmuch, more than that.

Drones are being used for tracking here in the U.S, but not yet as lethal weapons. On the other hand, the (ex post?) rationale of Sec. 1032 in NDAA 2012 stands to round many more up in conjunction with anxieties about their acquaintances, associations, and communications in relation to the monstrous fear of Al-Qaeda and the all things “terrorist.” But we know that those ‘more’ will less likely be young white men from the burbs of Mill Valley (to date, we’ve only seen one like that–and he got a trial), than young brown and black men from the “terrorist-laden” terrain of Queens, the Bronx, or the less-than-affluent suburbs of Boston and Portland, OR.

And in so saying, perhaps I’ve answered my own question: maybe we care more about the OLC white paper because it obfuscates the obvious: these aren’t policies intended towards non-Muslims. We can scrutinize the rationale of the white memo as a way to distract most Americans from focusing on the fact that policies like indefinite detention, pre-emptive policing, and—yes—targeted killings—haven’t been and won’t likely be directed towards innocent (non-Muslim) Americans. Rather, such policies will continue to be aimed many more Muslim-Americans (and non-Americans) who won’t–can’t–possibly expect the U.S. to respect their innocence unless there are clear and evident reasons to suspect otherwise.

In America, Journalists “Push Back”: The Magnificent Hypocrisy of Touré

Update (2/17/13) below:

Yesterday, the news of the leaked Department of Justice white paper brought on a flurry of “debates” about whether POTUS’ ever-expansive rationale for targeting U.S. citizens was acceptable. The rationale is that a mere suspicion WITHOUT evidence that a U.S. citizen was a senior official in Al-Qaeda (designated as a terrorist organization by the U.S.) is an acceptable basis to target him via a drone strike.

It’s hard to have a believable “debate” when folks who should be aware and up-to-date on the Administration’s doings are ignorant, skeptical, or indifferent. Those were the reactions of Debbie Wasserman-Schultz, chairwoman of the Democratic National Committee, when she was challenged about the legitimacy of WH-directed kill lists and drone strikes. This clip is from last fall, after the second Presidential debate at Hofstra University. Wasserman-Schultz–an elected Congressional representative from Florida–has NO idea about the secret kill list whatsoever (FF to 00:25 and again to 00:35-60 for “the look”):

Wasserman-Schultz appears confused and skeptical when asked about the kill lists. In fact, she has the same blank look on her face that Touré, a political commentator for cable tv’s “left-leaning” MSNBC’s SpinCity, does when his co-hosts Steve Kornacki and S.E. Cupp confront him about the fact that a drone was used to kill 16 year old Abdulrahman Al-Aulaqi, the son of the alleged “#2 official in Al-Qaeda.” His father, Anwar Al-Aulaqi, was killed by drones on Sept. 30, 2011, 2 weeks AFTER John Brennan, the Obama nominee to be the next director of the CIA, argued for upholding transparency and rule of law when deciding the targets of drone strikes. Abdulrahman was killed exactly 2 weeks later. Both father and son were U.S. citizens.

Compare Wasserman-Schultz’ reactions to those of Touré on the same topic (unfortunately, this clip won’t embed on this site, so you’ll have to click it. It’s short, and I promise it’s worth your time).

https://www.mrctv.org/videos/watch-two-far-left-msnbc-hosts-actually-support-doj-drone-memo

Touré was embroiled in a controversy last year with Piers Morgan over the death of Trayvon Martin, whose 18th birthday would have been yesterday. Martin’s ‘crime,’ as “journalist” Geraldo Rivera and prosecutors allege—was not that he was black, but that he was wearing a hoodie in an exclusive gated community. Touré was especially critical of Morgan about not having interviewed George Zimmerman–who shot and killed Martin–and his brother Robert, critically and forcefully.

You will see from the below clip one such heated discussion between the two of them where, invoking certain nativist sentiments, Touré insisted that because Morgan was not American, he didn’t understand true journalistic rigor.

Morgan is hardly an icon of journalistic responsibility, but Toure’s comments are remarkable and self-righteously patronizing:

Let me explain to you a little bit at what’s at stake here. This is a major moment in American history and America’s reaching a bit of a boiling point in terms of dealing with this issue. And when we allow for misinformation and obfuscation and people to become confused about the truth about what’s going on, then we become part of the problem and not part of the seeking a solution.

He continues to berate Morgan for “being a part of the problem” for allowing the Zimmerman brothers to come on the air and spread misinformation and lies that “we know many people will believe.”

Do you know that in the hallways of MSNBC we were laughing at you today? We wouldn’t even take ‘em–standards of practices at MSNBC wouldn’t even let them through the door. (1:15)

I’m hardly a fan of Piers Morgan; but Touré’s response was an especially interesting one. Remember this part from the SpinCity clip?

If you join Al-Qaeda, you lose the right to due process, you become an enemy of this nation. And you’re committing treason. And I don’t see why we should expand (sic) American rights to people who want to kill Americans. This is not criticizing the United States. This is going to war against the United States.

Treason is a charge that can be leveled at a U.S. citizen, not a “foreign” enemy. He is also surprised to learn that Abdulrahman Al-Awlaki is American minor. Take a look again at 00:34.

Touré: What do you mean a 16-year old who is killed? I’m not talking about civilians.

Steve Kornacki and S.E. Cupp (the ‘conservative’) assure Touré that they are talking about a 16 year old Denver-born teen who was killed. Touré looks confused.

Touré: If people are working against America, then they need to die.

According to Touré’s own standard, he is part of the problem. Is MSNBC laughing at Touré, one wonders?

There is a certain nativist, if not xenophobic, consistency on Touré’s part. Rightfully insisting on paying attention to the racist context surrounding Martin’s death, he nevertheless challenges Morgan’s attitudes on the grounds that Morgan is not “from here.” For all of Touré’s understanding about the racial context of unfair murders, he appears to be ignorant of and indifferent to the fact that a young Muslim (American) boy was killed by a drone under the auspices of the POTUS.

We see a similar nativism in Touré’s sentiments about restricting due process to “Americans”—even after he learns that Abdulrahman Al-Awlaki IS American. [Not to worry though, Kristal Ball jumps in to assure us that this issue is not “black and white,” but “definitely one of those areas of grey.” As S.E. Cupp points out, killing 700 children through drone strikes is hardly “an area of grey.”]

According to Touré (5:30), what Morgan understands as “challenging” interview subjects is barely critical, barely journalistic. Says Touré:

What you understand as challenging, perhaps, maybe that’s what goes in England. That’s not what we do in terms of challenging in America…I would have liked to see him pushed and challenged, more followup, more pushback, more research to understand.

Really? Considering that Touré’s “version” of critical (“leftie”) journalism takes the form of vociferous unwillingness to ask for proof of one’s “terrorist credentials,” or to question the validity of the white paper (never mind the range of “counter-terrorism” law that has increasingly shrouded executive decisions in secrecy), I have to wonder what it is “that we do here in America.”

Touré goes on this vein for another 10 minutes: a lecture to Piers Morgan about aggressive journalism, and how impossible it is that Zimmerman’s story is true, so “at that point, we can’t give him a light pushback; we have to give him a much tougher follow-up than that.” (6:20).

I’m waiting for Touré’s tough follow-up on POTUS’ kill lists, the WH’s Terror Tuesdays, and the white paper on targeted killing. As Touré snidely pretends to be impressed that Morgan has been covering the Trayvon Martin story for “a whole week, wow!” I’m wondering why Touré knows not at all about the 2011 murder of 16 year-old Awlaki or of the deaths of 700 children by drones.

Given his anger over Martin’s death and apparent ignorance about who Abdulrahman Al-Awlaki was, or what his crime was (namely that of having an “irresponsible father”), one could accuse Touré of having double-standards about the value of the lives of African American v. Muslim American 16 year old-teens, not to mention his own hypocritical indignance about Morgan, given that Touré is vociferously spreading misinformation.

Even then, his position regarding the white paper on targeted killings is that America is being attacked, Al-Qaeda is fighting a “post-geographic” war, and therefore the President, as the Commander-in-Chief is correct to decide who to kill–in secret and without any due process.

Screen Shot 2013-02-06 at 4.27.10 PM

The last person in this thread is correct; her words point to Blackstone’s Commentaries on the Laws of England–back in the 1760’s–when they had kings with political clout (Book 1, Ch. 7):

THE king, moreover, is not only incapable of doing wrong, but ever of thinking wrong: he can never mean to do an improper thing: in him is no folly or weakness.

One wonders how exactly how our “left” political class is “leaning forward.” If they dare to concede that wrong is done, it’s purely an accident. Which must make it morally acceptable.

Screen Shot 2013-02-06 at 4.29.59 PM

Feet to the Fire! Or is it “Lean Forward”?

______________________

Update (2/17/13): This article by Jemima Pierre on Black Agenda Report is a MUST READ. Written one year ago, it is dead-on accurate and precise. Pierre compares the assassinations of Trayvon Martin and Abdulrahman Al-Awlaki. Pierre, rather than Touré, should have been on this segment of The Cycle–without spin.

Down the Rabbit Hole: The Obama Administration’s Version of Transparency

As soon as Judge Denise Lind’s ruling in the pre-trial punishment motion for Bradley Manning came out, the ironies began to pile up: It took nearly 2 hours to read her decision. She ruled that although Manning was mistreated at Quantico, she rejected the idea of “any unlawful command influence from superior officers that led the commanding officer of Quantico to keep Manning in restrictive conditions for no justifiable reason.”  For those reasons she refused to dismiss the charges against Manning, although she did give him 112 days’ credit for time already served. And even though it was apparently a long, detailed, decision, the ruling itself could not be released to the public. As journalists Kevin Gosztola and Nathan Fuller pointed out: this lack of transparency is in a case about a whistleblower making information available to the public.

This absence of transparency comes on the heels of a ruling by Judge Colleen McMahon denying FOIA requests for the reasoning behind Obama Administration’s targeted killings. In her ruling, she refers to the fact that relevant information on which she bases her ruling is classified.

And on the heels of the plea taken by ex-CIA official John Kiriakou, whose crime was—not to name—but merely to confirm a suspicion that a journalist already had about a CIA interrogator in the torture of Abu Zubaydah. Compare Kiriakou’s crime with that of Obama nominee John Brennan who (beyond his endorsement of torture and remarkable statement about there never having been any civilian casualties in drone attacks) is accused of being responsible for multiple high-security leaks. For Kiriakou, 3 years in jail. For Brennan—neither arrest, detention, or solitary confinement, but rather Deputy Chief of NSA, which moved him closer to POTUS’ long-held wish for him to become head of CIA.

The most remarkable irony (if that is the right word. Where is Alanis Morissette when I need to consult?) lies in a comparison of the above events to the 2 Presidential Memos that President Obama issued in the first 4 months of his Administration.

On the first day he took office, Jan. 21, 2009, POTUS bragged about the intention of his administrations to create transparency. The first “Transparency” memo (.pdf) was hailed by ProPublica as well as Electronic Frontiers Foundation.

My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.

To that end, Obama asserted that

government offices should harness new technologies to put information about their operations and decisions online and readily available to the public.

In his FOIA Memo, also issued the same day, the President loftily refers to Judge Louis Brandeis’ quote about sunlight and disinfectant. It continues on the same righteously lofty vein that was supposed to distinguish his Administration’s policies from the elusive, highfalutin, “we know better than you” tone of the previous Bush Administration:

Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.

Mr. “Hope & Change” continues on in the same vein, urging offices not to wait for requests in order to disclose information, but to be proactive in disseminating information.

The last time I checked, the Department of Justice was a government office. So were the CIA, NSA, and DoD. Yet, the trend over the last four years is the continual expansion of secrecy, an ever-increasing breadth of classified information—so much so that as the Senate debated Sen Wyden’s oversight amendments to FISA on New Year’s Day, Senator Feinstein boasted about how she knew that there was important information that couldn’t be shared—because it was classified, but she promised to retrieve it from the room it was in, and to “wave it around” so that everyone would know that it existed and said…something that she knew was important but classified. What we also know, as a leaked memo shows, is that she was doing exactly the White House’s bidding.  See how cool the whole accountability thing works?  Leaking classified information allows us to know what our pols’ intentions really are.

This is part of the series of hypocrisies ironies piling up: as the US government insists on making more and more information confidential, private, and unavailable for oversight, it insists that its own citizens have no right to privacy—none—in their cyber or phone communications, cars, among other activities.  Moreover, by breaching or challenging the punitive rules coming out of the White House and Congress, the only outcome that citizens or non-citizens face is severe punishment ranging from arrest to indefinite detention to solitary confinement. The latter, regardless of Judge Lind’s ruling in Manning’s case yesterday, can only be defined as torture.  The rules are arbitrary—what else can we call them when we have no ability to call our representatives, DoJ lawyers, CIA officials, or President and his staff to account for their actions?

Former Guantanamo Chief Prosecutor Colonel Morris Davis suggested in his interview on Russian TV yesterday that the most severe crime that Bradley Manning committed was to embarrass the Administration and the Department of Justice (see at 1:55), rather than aiding the enemy or harming anyone.

At one point, Obama was thought to have the integrity that the Bush Administration did not, when his FOIA memo clarified that

In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.

The seeming transparency of that memo is augmented by this one on “Classified Information and Controlled Unclassified Information,” issued just four months later in May 2009.  It insists on the centralization of procedures for the public dissemination of information, also stating that

Effective measures to address the problem of over classification, including the possible restoration of the presumption against classification, which would preclude classification of information where there is significant doubt about the need for such classification, and the implementation of increased accountability for classification decisions;

Such a directive should have the beneficial effect of pushing previously presumptively classified information into the “disinfecting” sunlight.  Instead, the defining trend during the first Obama term was the very opposite.

That May 27 memo seems to be directly abnegated by the quiet passage of the Whistleblower Protection Enforcement Act. In effect, the WPEA explicitly re-envisions John Kiriakou’s actions as criminal even as it purports to reinforce protections for whistleblowers. As I wrote when it was quietly signed on the day after Thanksgiving last year, WPEA will criminalizes attempts to speak to agencies or journalists without permission from one’s supervisors.  This provision cuts off the ability to disseminate information informally and casually, and implicitly threatens severe punishments for those who have any sort of relationship with journalists.

Contrary to Samuel Rubenfeld’s bizarre article in the Wall Street Journal, the WPEA insists that email communications will not be protected under this act. Rubenfeld offers as proof of Obama’s whistleblower courage adoring quotations from Angela Canterbury, director of public policy at the Project on Government Oversight, who claims that

He’s done more to affirmatively protect whistleblowers than any other president

and

Obama wants to encourage internal reporting of wrongdoing.”

“Obama believes that “if there are more protections for internal whistleblowers, there will be fewer leaks of national security information,” Canterbury said. “We share that belief, but that does not de-legitimize the need for external whistleblowers.”

“Sometimes information needs to be disclosed outside the government for there to be accountability,

It’s hard to know whether these are prevarications or the trite misty-eyed aspirations of liberal Obama voters. But whatever they are, the statements are blatantly inaccurate. Notwithstanding Canterbury’s official title, which apparently negates the need to crosscheck her claims with actual content, the bills and memos that purport to protect whistleblowers have increasingly done the opposite.

The “Alice in Wonderland” reference that Judge Colleen McMahon made in her ruling on drone strikes last week is an apt literary allusion to the craziness, the upside-downness, the inversion of meaning of all statements emerging from the White House and…its fore(wo)men?

Today, when a memo is prefaced with a statement about the need for transparency, one can be fairly certain that the purpose of the memo will be the opposite. When the POTUS’ allies insist that they are pushing for the renewal of FISA for the “safety” of the American people, what comes to mind are the Muslim men (who are known to be) in detention in the U.S. and the fear that non-whites have of being arrested, detained, or deported. It is clear that FISA is being used against the “safety” of Americans, and its absence of oversight is used to guard against detecting the misuse and abuse of secret surveillance privileges by government offices.

When Obama insists on nominating Brennan—a man who endorsed torture, denied civilian casualties, and was himself responsible for leaks—to be the next director of the CIA—literally biding his time for 4 years until the furor of Brennan’s notoriously unethical credentials inevitably died down (Feet! To the Fire!), I can only believe that Obama and his Administration are only interested in continuing—as Glenn Greenwald calls it—the never-ending War on Terror.

Perhaps it is hardly shocking that the POTUS–and our Senators and Congresspersons—continually refer to that ubiquitous, irrefutable, state of national security in order to invoke a continual state of emergency. But the unflinching, chest-strutting, arrogance with which they do so—while creating ever-growing secret kill lists and disposition matrixes, is in large part engendered by the voters who continue to rehire them on the grounds that torture, drones, renditions—are tastier, more flavorful, and absolutely more palatable when done by a liberal.

After all, would you rather have Romney?

Newtown, CT: The Culture of Terror and the Failure of the National Security Agenda*

Yet again. Yes, again. Another heinous massacre in Newtown, CT. When I read of the details on Friday, I didn’t plan to write about it. I didn’t want to write about it.  I wanted to lose myself in the heated discussions over the misleading and graphic depictions of torture in Kathryn Bigelow’s film Zero Dark Thirty, in the Twitter project of NYU student & artist Josh Begley, who is tweeting every drone strike between 2002-2-12, in the details of the pre-trial motion hearing of Pfc. Bradley Manning as reported by Nathan Fuller and Kevin Gosztola and others; in the discussions of the conflagration of the meaning of terrorism in NY courts.  I wanted to consider those “national security” issues that form the basis of my work.  But in fact, the horrific event that occurred in Newtown, CT is also a national security issue. It is the result of the failure of the National Security Agenda put in place in the US since 9/11.

There isn’t one dominant definition of national security, but it might be safe to suggest that in the U.S., national security relates to domestic and foreign policies created in the name of fighting the “War on Terror.”  The policies of National Security relate to waging wars on sovereign Middle Eastern nations on the pretense that they have hidden WMD’s, or that their women need saving from Afghan men, or that they have nuclear weapons technology that will be used against us if we don’t level sanctions. National security refers to the hunt for alleged terrorists through pre-emptive policing, warrantless and indefinite detention, torture, solitary confinement. National security refers to the solitary confinement, humiliation, and abuse of whistleblowers such as Bradley Manning for turning over evidence of ethical wrongdoing by the U.S. armed services to transparency organizations such as Wikileaks.

The media coverage of the Newtown murders and the memorial speech given by President Obama would lead us to believe that what happened on Friday in Connecticut is worlds away from national security issues, because effective national security lies in rooting out terrorists. And we know that terrorists operate in dark shadowy cells, in the basements of mosques—in Kandahar, in Sana’a, in Abbottobad, in Queens, Brooklyn, Paterson, NJ, Lodi, CA. Terrorists don’t walk up to schools in grassy, leafy, quiet New England towns, with semi-automatic rifles in their hands, and after killing their mothers, force their way in, and shoot twenty 6 year olds multiple times at close range. Terrorists don’t have Asperger’s. Well, maybe they do. But only if they’re Muslim.

The media reports and the corresponding images of the heinous massacre in Newtown, CT have done their utmost to distinguish the unique tragedy of this shooting, to humanize the beautiful young children whose families grieve for them so heavily. Everything we hear about Adam Lanza reinforces that this was a random tragedy, fueled by the easy accessibility to guns. It had nothing to do with the Culture of Terror. Nothing to do with National Security.

Doesn’t it? In fact, the latest shooting of schoolchildren is the latest evidence that the national security project of the U.S government has failed.  The shooting in Newtown, CT is but part and parcel of a culture of shooting children, shooting civilians, shooting innocent adults, that has been waged by the U.S. government since September 12, 2001.  It has been directed by two United States Presidential Administrations, and has intensified under the second President, a Democrat.

And let there be no mistake: many of “us” have directly felt the impact of that culture: Which “us”? Yemeni parents, Pakistani uncles and aunts, Afghan grandparents and cousins, Somali brothers and sisters, Filipino cousins have experienced the impact of the culture of killing children. Families of children who live in countries that are routinely droned by the U.S. Air Force. Families of children whose villages are raided nightly in Afghanistan and Iraq.

The Culture of Terror has been waged insistently through Pres. Obama’s policy of drone strikes. Or by U.S. Cruise missiles, as the one that targeted a Yemeni wedding party in 2009, in which 20 adults and 21 children died.  The Culture of Terror is intensified when the journalist who reported that strike was jailed—at the command of POTUS—and remains in jail to this day.  The Culture of Terror was waged insistently on the day that the same President was re-elected–when another drone strike was launched in Yemen, and 3 more people died. The Culture of Terror was perpetuated when the US insisted on the right of Israel to “self-defense” in Gaza—in the face of the systematic, legal, theft of land and the disproportionate “targeted” killings of Palestinians by the Israeli government.

And in case, you have forgotten: here are the numbers for Israel’s “self-defense” in Palestine:

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 were 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.

The Culture of Terror has been consistently, repeatedly, enforced through the innumerable practices of rendering and torturing Muslim men and women alleged to be terrorists. Without ever providing evidence of their terrorist activities. The Culture of Terror is waged every minute that Bradley Manning is incarcerated in solitary confinement for having turned over documents that show the immoral, illegal, reprehensible practices of our U.S. Armed Services at the behest of the POTUS.

The Culture of Terror is reflected in the mass shootings in Oak Creek, WI, in Newtown, CT, in the 60 other places where mass shootings have occurred in the last 3 decades in the U.S. It is reflected in the deaths of countless children (2700 children in 2010) in the United States through needless and random gun violence—despite restrictions on guns. It is avoidable violence. The Culture of Terror is reflected in the “See Something, Say Something” posters, directed by the Department of Homeland Security, found all public transportation systems in the U.S. In the Pamela Gellar anti-Muslim posters posted all over NYC and Washington DC.  The Culture of Terror is reflected in the deportation of over 1.4 million migrants over the last four years. In the separation of 46,000 children from their parents (only in a 6 month period in 2011) . In the jailing of Dr. Shakir Hamoodi for sending money to his family in Iraq despite the needless sanctions imposed by the U.S.  In the refusal to allow a Muslim U.S. veteran fly home from Qatar to see his mother until the prolonged intervention of journalists and advocacy groups made it happen. In the fear that contributing to Bradley Manning’s or Julian Assange’s legal defense funds will render ordinary innocent citizens vulnerable to arrest and jailtime and similar privation of Constitutional rights. In the development of ever-longer kill lists and “disposition matrixes.”

In each and every one of those instances, the Culture of Terror is organized and directed by the U.S. government. And in each and every one of those instances, the Culture of Terror reflects a failure of the goal of National Security.  Because the goal of National Security cannot—can never succeed—if some among us must live in fear of being arrested, persecuted, imprisoned without charges, susceptible to being tortured or killed for being Muslim, Arab, hijabi, religious, the son of a suspected terrorist, a political dissenter, a whistleblower…

The project of National Security is the project of forcing us to live in fear of each other, of cutting social services to families whose members have severe neurological, psychological illnesses–in order to fund an increasing Culture of Terror. The National Security project is the project of allocating “2/3 of a trillion dollars” for 2013 alone: for the purpose of continued US military presence in other sovereign nations. The National Security project is to reward banks and financial institutions with even more money for their achievement of plundering the life-savings of thousands of ordinary citizens. For gratuituously rendering Americans homeless through subprime mortgage foreclosures.

What is the difference between the heinous tragedy that occurred last Friday in Newtown, CT and the instances that I mention above?  The key difference–Attorney General Eric Holder, POTUS Obama, Sec. of State Hillary Clinton, Sec. of Defense Leon Panetta—will tell you, is that the poor children in Newtown, CT were the innocent defenseless victims of a lone gunman, whereas the U.S. is in the full-fledged battle of combatting terrorism—which makes the murder of innocent civilians, of innocent children an unfortunate collateral damage. They will tell you that the housing crisis was the unfortunate result of greedy bankers, but they tried to punish the bankers. They will tell you to “Look forward, not backward.”

But in fact these are not the primary differences. The primary difference is that the U.S. has legitimated the Culture of Terror—and the failure of National Security—by insisting that needless violence, the random deaths of thousands of children and adult women and men, the gratuitous incarceration and solitary confinement of thousands of young men without charges is a necessary approach to “solving” terror.

The second primary difference is the complete lack of accountability—demanded from or given by– the U.S. government, the U.S. Congress—on the issues of unjust wars and invasions, human rights violations, damaging racial profiling, illegal drone and missile strikes, and countless other damage to ordinary citizens in the US and around the world. The third primary difference is that the same Liberals who are shocked by the shooting at Newtown, CT, in fact have legitimated the Culture of Terror by endorsing, voting for, and re-electing POTUS and his murderous terrorist Administration–instead of demanding accountability.

And that same legitimation—and the absence of outrage at the murders of thousands of innocent civilians around the world—whose parents, families, grieve identically to the families of the youngsters and teachers who tragically, horrifically died in Newtown, CT—shows the massive failure of our National Security agenda and the “War on Terror” in the era since 9/11.

Yet again. Yes, again.

___________________

*Revised.

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

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

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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.

GiTMO Tribunals: Righteous Reasons to Abandon the US Constitution?

After my last post, Thomas Drake, a former NSA official, pointed out that the circus of the Guantanamo Bay show-trials were the consequence of the US’s discarding of the “legal architecture” of the Constitution.

Drake, who successfully resisted the government’s attempts to persecute him for whistleblowing, is technically correct.  A range of practices, including torture, pre-emptive policing, indefinite detention, surveillance, warrantless wiretapping—were condoned and legitimated through post-facto legislation passed with “bipartisanconsensus and executive orders.  But there’s something special about the divorce between Gitmo and the Constitution. From the very beginning of the Bush Administration’s decision to use the US military camp on the island of Cuba, it seems evident that the whole point was to abandon the legal architecture.

The Bush Administration’s decision to imprison captured terror suspects at Gitmo–without warrants, time limits, outside observers to monitor treatment, or a clear legal framework–enabled the one of the first gaping territorial holes through which to run as far away as publicly, socially, journalistically, Americanly, acceptable from the Constitution and international law.  The inherent blurriness of the “principles” that anchor the legal possibilities of Gitmo stem from the fact that it is an extra-territorial U.S. territory, a U.S. military base that houses captured prisoners of war but renames them “enemy combatants.” And so the extra-Constitutional Entertainment Emporium was opened.

As Daphne Eviatar, Senior Counsel, Human Rights First’s Law and Security Program, pointed out several days ago, whether the Constitution is applicable in Guantanamo has been in question since the moment it opened til now, 11 years later.  Moreover, the “question” if we can call it that—of whether the US Constitution will apply—will not only remain unanswered, but the US Army Judge who is presiding over it, will play cat and mouse with the 5 defendants and their lawyers:

Judge James Pohl: “Give me a concrete example, and I’ll tell you what applies.”

This kind of toying is in spite of the fact that the US and the defense attorneys agree in all but 1 of 25 pre-trial motions that the defense filed. Regardless, there is still no articulation of whether the US Constitution will provide the set of rules to be followed.

The urgent question now is not whether–but why–legal architectures get changed. There’s probably a million part answer to that. I promise–a little search in Lexis-Nexis will confirm that.

One important answer begins from the point about the state that I made in a previous post: the purpose and the intention of the state are divergent—perhaps even conflicting. If that makes sense, then we can see easily that the urgent concern of those in power to stay in power requires suspending judgment in the face of widespread hysteria. This is what we saw in the immediate days after September 11, 2001:  The rush to be in control (Giuliani), to vow “justice out of love” (Bush), to insist that the actions of 19 stood in for an entire “cultural” worldview of terror—these impulses amplified the need to cut that swath of weeds called Constitutional protections (mistaken as safeguards against hasty, irrevocable actions) in favor of aggressive, decisive action.

And indeed, the USA PATRIOT Act–the first bill in the aftermath of 9-11 to overturn the legal architecture of the US Constitution–was passed with almost no objection (98-1 in the Senate with the lone naysaying vote from Russ Feingold, D-WI, who lost his seat in 2010). Even Paul Wellstone (D-MN) voted yes. Kay Landrieu (D-LA) was absent for the roll call vote.

It was the first of innumerable demonstrations of the widespread insistence that an elected or appointed official be on the right side of the War on Terror, i.e., in favor of it. The visceral hysteria was reflected every time a member of Congress and the Senate voted in favor of measures to expand the scope of power, of authority, of an aggressive boast to be “in charge.”

As Hannah Arendt says in her sobering reflection on the events of 1930’s Europe,

Before they seize power and establish a world according to their doctrines, totalitarian movements conjure up a lying world of consistency which is more adequate to the needs of the human mind than reality itself; in which through sheer imagination, uprooted masses can feel at home and are spared the never-ending shocks which real life and real experiences deal to human beings and their expectations. (Arendt 1951, 353)

The broad patriotic, Americanly, belief in the lying world of consistency resulted in an extreme anxiety for the rest of the American populace who are on the receiving end–in this case, of the WoT–those who were, or assumed to be, or were empathetic to Muslim men, women and children.  To be Muslim in the US meant–still means–living in anger or in fear of waking up and not be sure which side of the law you will find yourself on any given day.

And for those who were wielding that stick of the WoT, from the Bush Administration and fellow Republicans to—the supposed challengers—the Democrats who allied themselves with Bush & Co., they intuitively knew that the drive to increase the scope of power requires an increase in the scope of immunity from the abuses of power.

This point is slightly different from one that Glenn Greenwald makes in his book, With Liberty and Justice for Some:

…even the most well-intentioned leader will eventually abuse his power if he is not constrained by law. Indeed, and somewhat paradoxically, a ruler’s belief in his own virtue actually renders abuses of power more likely, since he can rationalize all manner of arbitrary and capricious measures: I am good and doing this for good ends, it is therefore justifiable.” (Greenwald 2007, 5)

My point is the counterpart of Greenwald’s: most politicians intuitively understood that well before September 11, abuses of power, especially in the name of virtue and justice, will require immunity eventually–and they can/will plan for it. There are many ways to obtain immunity, for example, such as post-criminal pardons a la Scooter Libby.  But that is not the most dependable version of a future escape plan in case of trouble.

Instead, immunity itself takes the forms of

  1. expanding power in the form of bills that entail increasing space in which to act without safeguards.
  2. Taking advantage of loopholes in already-existing regulations.
  3. Deliberately creating grey spaces (legally, geographically, politically) in which extra-legal measures, loopholes, and outright aggressive acts can be embraced.
  4. Limiting what others know about the cards you have (hence the impetus to insist on an ever-expanding scope of privacy).

Clearly, #4 comes into play in war, in poker, and in the courtroom.  The less others know, the more you can spring surprise attacks, the more you can make people gamble on their best hopes, and the fewer chances that someone else will be able to call you out on the dirty tricks that you play to win.

Hannah Arendt again:

The only rule of which everybody in a totalitarian state may be sure is that the more visible government agencies are, the less power they carry, and the less is known of the existence of an institution, the more powerful it will ultimately turn out to be (Arendt, 1951, 403).

A few pages before, Arendt ruminates on the nature of state power under ambiguous conditions:

…this permanent state of lawlessness found expression in the fact that a ‘number of valid regulations [were] no longer made public. Theoretically it corresponded to…the dictum that ‘the total state must not know any difference between law and ethics’ (Arendt, 1951, 394).

As we know, #3 and #4 violate the rule of law—the same rule of law that is invoked to force “ordinary” wrongdoers—those without power– to be accountable. That’s what it means to incarcerate poor minorities for petty crimes while allowing powerful wrongdoers like former Sen. & Gov. Jon Corzine, (and also a leading fundraiser for POTUS) to garner millions of dollars in bonuses. By contrast, in the business of war, Bradley Manning and Julian Assange have upended #4. They have not been allowed to walk away.

In the Grey Zone of Guantanamo, at least #3 and #4 apply. I’ve already discussed #3 above. But as I discussed in my last post, #4—limiting what others know about the cards you have—has been a key concrete strategy on the part of the Department of Justice and the U.S. Army—by virtue of being able to take refuge in #3.

In the case of the trials of Khalid Sheikh Mohammad and his four co-defendants, the inability to depend on a clear legal framework creates the “shapelessness”—the ambiguity–of the structure, but it does not explain it (Arendt’s phrase 1951, p. 398).

As we’ve seen over the last week, the increased drive to “privacy” is invoked to protect national security interests.  But in fact, the ability to take refuge in immunity and gain a serious foothold in the sheer unrestricted power to harass and justify the act of harassment, comes from taking away someone else’s ability to call you out.

As Thomas Drake says, the US did abandon the US Constitution. But then again, whether convinced of its own righteous pursuit of justice or just playing it safe, they found every reason to abandon it.

White Privilege, American Privilege: Does It Make Sense to Be More Concerned with Rights at “Home”?

Updated Version

I love how white folks are going around deploying “white privilege” pejoratively at this particular moment, 6 weeks from the elections. I think the term is useful and can be illuminating in demonstrating racial and political economic hierarchies   But if white folks are going to use it responsibly, the term should be placed up front, followed by a verb, object, and citation to someone—preferably a writer or activist of color– who explains and puts the term in context.

I wonder if they know that lobbing it against someone else doesn’t make them racially or morally superior, it doesn’t exculpate them from their own (white) privilege, and it doesn’t actually do the work of explaining their concerns.

I also don’t think “white privilege,” as deployed by whites, is a particularly illuminating term in pointing to some of the serious issues that trouble people like me.  After all, we know plenty of folks of color who have accepted the invitation into white supremacy, and helped design policies that induced the suffering of many folks of color—through the architecture of torture, justifying rendition practices, cementing the extra-legal category of enemy combatant, among other things: Condoleezza Rice, Alberto Gonzalez, John Yoo—and that was under the Bush Administration. But plenty of folks of color are doing it today: Governors Nikki Haley & Bobby Jindal on eradicating social structures, reproductive choice, etc. Really, the privilege in question is American (whitish or liberal) privilege: the privilege of not having to know (or know about) foreign nationals or feel particularly obliged to them, or know about the harms done to them, simply because the wars, jingoism, and aggressive foreign policy of the US empire won’t affect you.

White supremacy. Pretty loaded word. As philosopher Charles Mills uses the term in his book, white supremacy is defined to talk about the system of power that is designed to keep whites in power. Mills uses it to talk about the Racial Contract—both as the counterpart of the Social Contract and its foundation. The Social Contract—the one that ensures that white folks will have access to equal and reciprocal rights, can only do so on the backs of black and brown folks, who are sub-persons, in Mills’ terms. And we’ve seen plenty of what this Racial Contract leads to–I write about it here and here and here. But it is certainly possible for brown and black folks to accept the invitation to move ranks—for plenty of good reasons—to escape vulnerability, persecution, harassment. But there are also less than compelling reasons, like doing the work of white supremacists for them: being the architect of torture, of rendition, leading the charge to invade other countries. It’s not unusual that folks of color are invited to do this—and may have some compelling self-interests to do so; but it doesn’t mean that we should refrain from criticizing them, or constantly be subject to charges of racism.

In short, yes, there are some—debatable—improvements with regard to issues that affect mostly middle- and upper-class U.S. citizens. But this is hardly a proud record of accomplishments that should be touted as representing “Americans.”  I’m listing the differences on a new page—both to support my position, but also because I don’t want to distract from the argument here. See here if you are interested.

Really, the idea that we must look so hard to find substantive difference between the two parties suggests that at so many levels, empire has finally taken root.  Empire. White Supremacy. Gawd, such loaded words. And yet, really, this is where the U.S. is. Empire is deployed to justify actions and unite those at home against the Other overseas, who have been subject to conquest.

Hannah Arendt, wrote about the links of race and capitalism as embedded in empire in the Origins of Totalitarianism in 1948.  As she explored the roots of empire in the early 1900’s, she found the “inner contradiction between the nation’s body politic and conquest as a political device” an obvious one.” (1948, 128)  But the failure of this contradiction leads to one of two outcomes: either a fully united national consciousness of those who were conquered…or tyranny. Empire was meant to unite folks at home, to insist upon the moral good done abroad, and to expect their conquests to like it.

Arendt pointed out that the drive to expansion and conquest was fueled by the desire for money to make itself and for power (the state) to follow money (the bankers and capitalists). Imperialists wanted “to expand political power without the foundation of a body politic”—without having a political structure that managed and checked capital and secured rights.

Sound familiar? Here is Arendt again:

“The secret of the new happy fulfillment [of the bourgeoisie’s desire to have money beget money]  was precisely that economic laws no longer stood in the way of the greed of the owning classes. Money could finally beget money because power, with complete disregard for all laws—economic as well as ethical—could appropriate wealth. Only when exported money succeeded in stimulating the export of power could it accomplish its owners’ designs Only the unlimited accumulation of power could bring about the unlimited accumulation of capital. (Arendt 1948, 137)
 

History repeats itself at this moment. This is why it does us little good to separate out “our” obligations to “our own” from our obligations to “Others.” If we try, then we engage in a false disconnect. What happens internationally is intrinsically linked to what happens in the U.S.   Foreign policy influences domestic policy, by insisting that we have to band together against the Other—or it brings the same mentality—and similar policies abrogating rights protections back home—in the form of NDAA, the expansion of FISA, Indefinite detention, wiretapping, FBI databases and fusion centers. Capitalists influence foreign policy in line with their own interests–and consistently in line with domestic policy that lines up with their interests. This seems clear when looking at the list of accomplishments on the parts of the Democrats.

Glenn Greenwald, Jonathan Turley, and numerous others, including myself, have been making this point repeatedly.  This is why I think the term “white privilege” deflects attention from what’s at stake: there is absolutely a privilege in being able to ignore what’s happening abroad, or to insist on our moral superiority or exceptionalism. As Sam Holloway points out:

It’s very revealing that the most consistent argument in favor of supporting Barack Obama (when better options are clearly available) is that the other corporate option (Romney) will be worse. Crystal ball access notwithstanding, this is a terrible justification. It’s a clear demonstration that millions of us are willing to allow atrocities to be visited upon others as long as our own privileges are left more or less intact. We don’t care how many foreign brown children Obama exterminates as long as the wealthier among us still has access to health care, abortions, etc. Let’s be clear– I’m not suggesting those are trivial issues. However, if you accept a situation where you have access and others don’t, then you are reducing these basic human rights to privileges. The same goes for your right to due process; if you tolerate Obama’s extrajudicial killings, then you are saying that life is a privilege that you deserve and that others do not. In addition to being morally reprehensible, this approach leaves you open to having your own privilege (to health, security, life, etc.) revoked at any time.
 

Isn’t this what we’ve been seeing? In the deportation of migrants, drone attacks, indefinite detention, NDAA 2012, H.R. 347, suppression of speech? These issues are inseparable—when they happen to others, they are used to justify “our” privilege—in this case, American privilege. But “our” privilege can be revoked using the same laws, same authority (or lack thereof) that were used to kill vilified U.S. citizens like Al-Aulaqi, to detain, harass, and confine U.S. citizens without fair trials—like Jose Padilla, John Walker Lindh, Fahad Hashmi, Tarek Mehanna, Bradley Manning—these will be used against “us” too–starting with the most vulnerable, dark, and threatening first.

Having the right to have my contraception paid for won’t protect you or me against that immoral use of power to hurt, humiliate, torture, incarcerate—lawfully. The violations of bodies of Black and brown folks are intrinsically connected to the lack of respect for the bodies of black and brown women–in the US and elsewhere.  And Mitt Romney may be worse on some of these issues—but his ability to harm all of us will have been made much easier by the likes of our past 2 POTUSes—Democrat and Republican—and the current Administration. Not to worry. That is the devastating future of American –and not just white–privilege.

150 Years Since Emancipation: We’ve (Hardly) Come a Long Way, Baby

Saturday, Sept. 22 marked the 150th anniversary of President Lincoln’s early emancipation of slaves from Confederate States which were still rebelling against Union authority by the beginning of 1863.  The official Emancipation Proclamation would be signed into law on January 1, 1863.  But slavery wasn’t constitutionally abolished until December 18, 1865, when the 13th Amendment was passed. Perhaps because it was the preliminary announcement, there was very little fanfare, save for several NYT pieces. One was a column on Lincon’s Great Gamble, and the other an editorial that traced the beginning of the Laws of War to that event.

Still, some things that come to mind:

  1. The Republicans, in spite of their supposed zeal to appeal to African Americans and other minority voters, missed an opportunity to trumpet the fact that it was a Republican President whose actions would eventually free several million black men and women. There’s still time to commemorate the actual anniversary of the Lincoln’s signing of the EP on Jan. 1, 2013—well after the election. It could mark a change in long-term strategy. Will they?
  2. As Angela Davis (philosopher, Black Panther, and ex-prisoner), Cornel West, and Michelle Alexander have been arguing, the abolition of slavery did not lead to the freedom of black men and women, but rather to the continuation of slavery by other “legal” means.  Other means included Jim Crow (apartheid and indentured servitude); more recently, we see the continuation of apartheid and slavery through the massive imprisonment, voter suppression and abrogation of other rights of convicted African Americans and other minority populations for non-violent offenses.
  3. Innumerable Black men, such as Mumia Abu-Jamal are in prison due to shoddy representation, improper trials, or other irregular procedures.
  4. Populations of color make up 30% of the US population, but 60% of the prison population.
  5. 1 in 3 Black men in the U.S. can expect to go to prison in their lifetimes. 1 in 10 Black men is in prison or jail in the U.S.
  6. Plea bargains—agreeing to concede guilt in exchange for a shorter sentence—account for 95% of all felony convictions in the U.S.  90% of all criminal convictions are the result of plea bargains. Plea bargains save the courts time and money by bypassing trials; and save prisoners potentially lengthier jail sentences.
  7. Plea bargains also require the arrested to waive three rights guaranteed by the 5thand 6th (right against self-incrimination, right to confront hostile witnesses, and the right to a jury trial).  They also enable the waiving of the right to appeal a conviction.  By extension, plea bargains do not guarantee that the “convicted” are in fact guilty.
  8. Latinos represent the largest percentage of the 400,000 migrants detained annually in centers across the United States (97%).  There are huge profits to be netted in the private management of these facilities. It is one of the most successful jobs program, expanded if not created, by the Obama Administration.
  9. Migrants who are arrested or detained for “unlawful” entry into the United States are at the mercy of the whims of USCIS officers. They are not entitled to lawyers. Nor to judicial review. That means they have no access to judges to review their cases and the accuracy of the charges against them—or of any other facts.
  10. The CIA has decided to offer some transparency by announcing the names of 55 out of 84 prisoners in Guantanamo Bay Detention facilities who have been cleared for released by the United States (court system?). Why not the other 19 men, too?
  11. Adnan Latif, a Yemeni who had been imprisoned without charges in Guantanamo since October 2002, had been cleared for release multiple times over the first 8 years of his unlawful imprisonment; his release was challenged by the Obama Administration and ultimately overturned by the Supreme Court 3 months ago because of “security concerns.”
  12. U.S. citizens Fahad Hashmi and Tarek Mehanna represent only 2 of many Muslim men who were arrested on suspicion of terrorism, confined without charges, and after many years, convicted of material support to terrorism. There is no public documentation of these charges. Public evidence of their “criminal tendencies,” point to their vocal religious and political dissent against U.S. foreign policies and empathies for states that were subject to the war on terror (both are technically protected under the U.S. Constitution’s 1st amendment).
  13. SAM’s—Special Administrative Measures–can be issued by an Attorney General against prisoners for any sort of minute infraction, and not be subject to judicial review after someone is “convicted.”  SAM’s can include solitary confinement for years at a time, revoking visiting privileges with one’s mother, refusing to allow a prisoner out of his solitary confinement for even his daily 1 hour allotment for exercise.  They can be issued for infractions that don’t need to be known to prisoners or their lawyers. If they are promulgated publicly, the reason for the SAM is because the prisoner is acting in a way that is deemed to incite riots or violence. I mean how else would one view the act of praying, or god-forbid, shadowboxing in solitary confinement?
  14. The NDAA 2011 gave the POTUS the unlimited authority to detain suspected terrorists anytime, anywhere—until a lawsuit against Section 1021 launched by journalist Chris Hedges and other journalists was won in May, and its enforcement stopped with a temporary injunction. A permanent injunction was instituted last week.
  15. The permanent injunction has been challenged by the Obama Administration as of last week.
  16. “Homeland,” a cable show (Showtime) that features a CIA agent who tracks a CIA agent/white U.S. citizen/former prisoner of Al-Qaeda as a potential enemy of the United States, won a 2012 Emmy last night for Best Drama.  Isn’t Clare Danes gorgeous as a CIA agent?  Just saying.

John Knefel: Adnan Latif Wrote to his Lawyer About Why He Wanted to End His Life

This article is reblogged from Alternet.org. It is a must-read and sheds more light on the needless and groundless circumstances that led Latif to give up all hope on his ever leaving Guantanamo Bay.I will refrain from calling this a tragedy: a tragedy is thought to be inevitable. Latif’s incarceration and suicide were anything but. What happened to Latif is a travesty. And there is plenty of blame to be assigned: to the past and current Presidential Administrations; the Supreme Court, and the U.S. Military, for starters.

What happened to Latif is still happening: and not only to Guantanamo detainees. Incarceration without due process rights, under unjust circumstances or false evidence is a regular event that happens to thousands of minorities–men and women–everyday in the United States: in U.S. prisons and detention facilities that hold migrants and refugees. More on this in a future post.

Dead Gitmo Prisoner’s Tragic Letter About Why He Gave Up on Life

by John Knefel

September 13, 2012  |

Adnan Latif was found dead in his cell on September 10th, 2012, just a day before the eleventh anniversary of 9/11. He was 32. Latif, a Yemeni citizen, had been detained at Guantanamo Bay for over a decade, despite a 2010 court ruling that ordered the Obama administration to “take all necessary and appropriate diplomatic steps to facilitate Latif’s release forthwith,” due to lack of evidence that he had committed any crime. He suffered at the hands of the US government in ways that most people can’t begin to comprehend, and his death should be a reminder that the national shame that is Guantanamo Bay lives on and now enjoys bipartisan support.

Reexamining a letter  he wrote to his lawyer David Remes in December of 2010 shows the depths of his despair near the end of his life. His letter begins simply. The first paragraph is just one devastating sentence: “Do whatever you wish to do, the issue is over.” He then goes on to describe Guantanamo as, “a prison that does not know humanity, and does not know [sic] except the language of power, oppression, and humiliation for whoever enters it.”

“Anybody who is able to die,” Latif writes, “will be able to achieve happiness for himself, he has no hope except that.”

He continues:

“The requirement…is to leave this life which is no longer anymore [sic] called a life, instead it itself has become death and renewable torture. Ending it is a mercy and happiness for this soul. I will not allow any more of this and I will end it.”

Latif attempted suicide in 2009 by slitting his wrists, and his attorney, David Remes, has said that he tried to kill himself on other occasions as well.

A car accident in 1994 left Latif with a head injury, which he was attempting to get treated in Afghanistan when he was captured near the border by Pakistani authorities. In January, 2002, he was sent to Guantanamo, with the unfortunate distinction of being one of the first detainees. According to the ACLU, Latif was cleared to be released in 2004, 2007, 2009, and again in 2010 by US District Court Judge Henry Kennedy. The Obama DOJ appealed the 2010 decision, in part because of a policy of not transferring detainees to Yemen, and so Latif remained in custody – not because of what he had done (which was nothing), but because of where he was born. The decision to appeal his release wasn’t a holdover from the Bush era. That was an affirmative decision made by the Obama administration, and any supporters who hoped Obama would close Guantanamo Bay should understand that fact.

Latif is far from the only prisoner still held at Guantanamo despite being okayed for release. “Over half of the people left in Gitmo have been cleared for years,” said Cori Crider, Legal Director at Reprieve in charge of managing litigation on secret prisons,who has represented clients detained at Guantanamo. Crider went on to say that although conditions at the prison are better than they were in 2002, indefinite detention is enough to break people.  “That young man, who was, say, twenty when he is seized, is thirty. He sees his life slipping away from him with no sign of release. Hopelessness takes lives at Gitmo now.”

There are, unsurprisingly, international legal ramifications to Latif’s death as well. “When a Government deprives a person of their liberty and keeps them in detention, it exercises almost complete control over that person’s security and well-being. Because of this control, if a person dies in custody, there is a presumption under international law of government responsibility,” said Professor Sarah Knuckey, Former Advisor to the UN Special Rapporteur on extrajudicial executions. “Thus, for any death in custody, the government must accept legal responsibility, or affirmatively demonstrate that it was not responsible for the death.” The understandable reaction that this is merely another example in an already disgracefully long list of international crimes committed since 9/11 only underscores how radical and warped US national security and foreign policy has become.

“A world power failed to safeguard peace and human rights and from saving me. I will do whatever I am able to do to rid myself of the imposed death on me at any moment of this prison.”

Adnan Latif’s letter is in full below. (Click to read a larger version)

Turley and Cusack on the U.S. Constitution

I rarely do this, but this is a must-read column by progressive activist/actor John Cusack, followed by a very long, but urgent, conversation between Cusack and Constitutional Law Prof. Jonathan Turley. It will make liberals and progressives in the US extremely uncomfortable, but it’s time to feel uncomfortable: there are some serious questions that need to be addressed in the face of the November 2012 elections, and Turley and Cusack lay out clearly what’s at stake–morally, politically, internationally. Skip to the last six paragraphs if you’re short on time.

SHANNYN MOORE: JUST A GIRL FROM HOMER

Editor’s Note from Shannyn Moore:  Read This.


*****************************

By John Cusack

I wrote this a while back after Romney got the nom… in light of the blizzard of bullshit coming at us in the next few months I thought I would put it out now

Now that the Republican primary circus is over, I started to think about what it would mean to vote for Obama…

Since mostly we hear from the daily hypocrisies of Mitt and friends, I thought we should examine “our guy” on a few issues with a bit more scrutiny than we hear from the “progressive left”, which seems to be little or none at all.

Instead of scrutiny, the usual arguments in favor of another Obama presidency are made: We must stop fanatics; it would be better than the fanatics—he’s the last line of defense from the corporate barbarians—and of course the Supreme Court. It…

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Amherst, MA Opts out of ICE’s Secure Communities Program

This post inaugurates my return to the blogosphere.  Many topics to discuss, coming soon: VAWA, the unsung heroes surrounding Chen Guancheng’s achievements, Tarek Mehanna’s conviction.

I spoke at Amherst Town Meeting last night in support of passing Article 29* to the Town Warrant of Amherst, MA. Article 29 resolves not to participate in federal law enforcement programs relating to immigration enforcement, in particular, the Secure Communities program.  S.Comm, as it’s known, is an Immigration and Customs Enforcement (ICE) initiative, which directs local and state authorities to run the fingerprints of anyone with whom they come in contact in the course of their duties (to check on a complaint of theft, domestic abuse, a report of strange activity). They are directed to do so in order to check on the visa status of the complainant, the informer, the suspect–and then to inform the FBI, (who will then inform ICE), and to detain them for 48 hours (or long enough for ICE to move and transport them to detention facilities–where the chance to defend, challenge or ask for support is eliminated). ICE claims 2 things in its explanation: 1. “Absent special circumstances or aggravating factors, it is against ICE policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime.”  2.  They direct ICE officers to “use discretion.” Discretion, as we know, is a dangerous thing. Discretion can be used to protect, or it can be used to enhance and aggravate an already ambiguous and incendiary circumstance.

As you may know, there is no automatic judicial review for anyone who is perceived to be an “illegal” migrant–nor even for those who are U.S. citizens (3500 citizens have already been deported). This means that any brush with local authorities for yellow, brown, or black people–regardless of citizenship status OR innocence–eliminates the ability to challenge the authorities’ decision to detain, move you to unknown territory, or let your family know, or arrange to have someone care for your children. Among other restrictions.

As of May 15, 2012, despite the explicit refusal of Massachusetts, Illinois, and New York to opt out of S.Comm, the federal government has insisted that S.Comm must be enforced. Massachusetts Gov. Deval Patrick, despite his initial resolution, has conceded to the demands of the Department of Homeland Security.

S.Comm, contrary to the claims of Janet Napolitano and ICE, will not make the Homeland a more secure place. The statistics given by reliable sources suggest that 79% of people deported under Secure Communities had no criminal records or had been picked up for low-level offenses, like traffic violations and juvenile mischief. Of the approximately 47,000 people deported in that period only about 20 percent had been charged with or convicted of serious “Level 1” crimes, like assault and drug dealing. 3500 of the persons deported under S.Comm were US citizens.

The national average of Secure Communities deportees with no criminal records was about 26 percent, but that figure also varied wildly around the country. It was 54 percent in Maricopa County, Ariz., whose sheriff is notorious for staging indiscriminate immigration raids. In Travis County, Tex., it was 82 percent. Here is what Secure Communities program will do: its purpose is to enable a a greater scope of action to arrest, detain, and direct the movements of migrants and non-whites (by holding them for ICE to scoop them up and take them to holding facilities, lose their children in the foster system, leave them without access to lawyers, family, or community). S.Comm enables greater police authority with little, if any, accountability, checks or balances on municipal, state, or federal.authorities when it comes to the treatment of people of color–citizens, residents, migrants:  It is one in which at any moment one is at the mercy of an authority—not because she has done something wrong, but because she is facing an authority.

S.Comm brings the rest of the nation much closer to the racial profiling laws of Alabama and Arizona, contrary to the claims of Eric Holder and Obama Administration in the Supreme Court’s review of SB 1070 several weeks ago.  Here are some features as they pertain to the S.Comm program:

*It does not ask for habeas corpus, or the charges of wrongdoing that are to be leveled against migrants.

*It does not ask for judicial review of the crimes in question before starting, finishing deportation proceedings.

*It does not recognize due process, or human rights protections.

Those 3 things belong to states that are based on political rights, on human rights, on constitutions, but they have been eliminated for folks of color and migrants in Arizona and Alabama racial profiling laws.

As I said last night, S.Comm is not designed to make us feel secure. It is designed to make those of us who are visibly “not of here,” fear any interactions with the law. It is designed to make those of us who appear to be “of here” to mistakenly believe that undocumented migrants are automatically criminals—that not filing paperwork or moving without filing paperwork (an illegal act) is somehow akin to a crime. That driving without a license deserves a cross-check with ICE, rather than just being charged with driving without a license and summoned to court to explain/defend oneself or deal with the traditional penalties that go with such a charge.  S.Comm is designed to deceive citizens into believing that poverty, crime, and unemployment are caused by migrants, undocumented or otherwise, and that by removing those migrants, the Federal Government is doing something about it by forcing local and state police authorities to report and cross-check the suspects—really—the yellow and brown and black suspects whom they’ve arrested.

Amherst Town Meeting voted morally–and nearly unanimously–to insist that Amherst Police Department cooperate minimally if at all “with federal law enforcement programs relating to immigration enforcement…” Here is the last paragraph of the resolution.

NOW, THEREFORE, BE IT RESOLVED that the Town of Amherst and its officials and employees, to the extent permissible by law, shall not participate in federal law enforcement programs relating to immigration enforcement, including but not limited to, Secure Communities, and cooperative agreements with the federal government under which town personnel participate in the enforcement of immigration laws, such as those authorized by Section 287(g) of the Immigration and Nationality Act. Should the Commonwealth of Massachusetts enter into an agreement or Memorandum of Agreement regarding Secure Communities, the Town of Amherst shall opt out if legally and practically permissible. To the extent permissible by law, immigration detainer requests will not be honored by the Amherst Police Department. Municipal employees of the Town of Amherst, including law enforcement employees, shall not monitor, stop, detain, question, interrogate, or search a person for the purpose of determining that individual’s immigration status. Officers shall not inquire about the immigration status of any crime victim, witness, or suspect, unless such information is directly relevant to the investigation, nor shall they refer such information to federal immigration enforcement authorities unless that information developed is directly relevant. The use of a criminal investigation or arrest shall not be used as a basis to ascertain information about an individual’s immigration status unless directly relevant to the offenses charged.
 

Remember that little legal document–the U.S. Constitution–which acknowledges that we human beings—whether people, or police, or judges, or politicians—can be fallible? It does so by establishing a procedure by which charges need to proven procedurally, and rights are accorded in order to safeguard against kneejerk assumptions about guilt and criminality. We can make mistakes and accuse people wrongly of crimes. That’s why rights—protections of the accused, judicial review: a hearing in front of a judge, and constitutional protections—those things that make us feel a little safer from the caprices and arbitrary dislikes of human beings—are so important.

The way to Safer Communities—not Secure Communities—but Safer Communities is to build trust. The way many of us build trust is to communicate, to talk, to know that our neighbors and we all think of our towns as communities, to know that we are on the same side.Trust is established when a migrant knows that by approaching someone to report a crime, or asking for help because some injustice was committed (like a rape, an assault, a theft), she will not be thrown in jail, or put in arbitrary detention where officials can treat her badly as they like with impunity, because there is no accountability, no review, no checks.

S. Comm has been imposed on us by the Department of Homeland Security, urged by the Obama Administration—groups that are supposed to represent us (fyi) and supposedly disagree with AZ’s SB 1070, GA’s HB 87, and AL’s HB 56, even though the intent is similar. It is a program that urges us to turn in neighbors who don’t quite look like us, who seem to be “different”, who seem to be from “away.” It is not a program that represents us. It is a program that urges us to turn on one another so that politicians can capitalize on fear and xenophobia to be continually re-elected to office.  Secure Communities, in fact, will lead to insecure, unsafe, antagonistic, violent, and hostile communities.  They will render them a virtual police state; certainly, this won’t be the case for all of us. However, for migrants, legal and illegal, S.Comm will enhance fear and distrust.

Bravo, Town of Amherst!

____________________

*Full text of Article 29, as passed by Amherst Town Meeting on May 21, 2012:

WHEREAS the Town of Amherst has been enriched and built by generations of immigrants; and,
WHEREAS the program called “Secure Communities” (SComm), run by federal Immigration and Customs Enforcement, harms our communities by mandating the sharing of local law enforcement reporting with the Department of Homeland Security on individuals they detain or arrest, thus involving local law enforcement in federal immigration policy; and,
WHEREAS SComm is an unfunded mandate, meaning that the burden of incarceration, detention, and care for detained people falls upon the budget of local law enforcement and upon the Town of Amherst; and,
WHEREAS SComm rejects a community policing model, which is based upon trust between law enforcement and the population it is meant to protect and serve, and has already been shown to increase distrust and fear of local authorities, making many immigrants afraid to be witnesses and report crimes against themselves and others; and,
WHEREAS SComm violates the Town of Amherst Bylaws, including the Human Rights Bylaw (STM- November 8, 1999, Art. 16), as SComm explicitly promotes discrimination on the basis of nation of origin and implicitly promotes discrimination on the basis of race, color, and socio-economic status; and,
WHEREAS the Code of Federal Regulations, 28 C.F.R. §20.21(c)(3), provides that “[s]tates and local governments will determine the purposes for which dissemination of criminal history record information is authorized by State law, executive order, local ordinance, court rule, decision or order”; then
NOW, THEREFORE, BE IT RESOLVED that the Town of Amherst and its officials and employees, to the extent permissible by law, shall not participate in federal law enforcement programs relating to immigration enforcement, including but not limited to, Secure Communities, and cooperative agreements with the federal government under which town personnel participate in the enforcement of immigration laws, such as those authorized by Section 287(g) of the Immigration and Nationality Act. Should the Commonwealth of Massachusetts enter into an agreement or Memorandum of Agreement regarding Secure Communities, the Town of Amherst shall opt out if legally and practically permissible. To the extent permissible by law, immigration detainer requests will not be honored by the Amherst Police Department. Municipal employees of the Town of Amherst, including law enforcement employees, shall not monitor, stop, detain, question, interrogate, or search a person for the purpose of determining that individual’s immigration status. Officers shall not inquire about the immigration status of any crime victim, witness, or suspect, unless such information is directly relevant to the investigation, nor shall they refer such information to federal immigration enforcement authorities unless that information developed is directly relevant. The use of a criminal investigation or arrest shall not be used as a basis to ascertain information about an individual’s immigration status unless directly relevant to the offenses charged.”