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.”

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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.

 

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?

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

Updated below.

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

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

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

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

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

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

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

BARACK OBAMA

_______________________________

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

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

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

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

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

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

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

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

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

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

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

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

_________________________________________________

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

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

From the post over at emptywheel:

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

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

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

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

Safe States: Safe for Whom?

It’s Halloween. And the political climate is terrifying. Democrats try to assuage their increasing anxieties over Matt Stoller’s, David Sirota’s, and even Lawrence O’Donnell’s challenge (brief as it ever was) to the Democratic voting hegemony.  It’s hard to know how many liberals have noticed Margaret Kimberley’s, Bruce Dixon’s or Glen Ford’s numerous challenges.  And I keep hearing the term “safe state” bandied about. Apparently, the term “safe” is a code for “blue”…or “most people are voting for Democrats, so the rest of you can do whatever you want.”

News flash: Apparently, the term “safe” is not meant to be ironic.

The “safe” state in which liberals have taken refuge induces another soul-searching moment for me. What does it mean to wake up and feel that one is in a safe state?

I don’t mean “my house has 17 locks and multiple metal gates” safe. Or “Friday the 13th and Texas Chainsaw Massacre are only horror movies” safe.  I mean “Those who are anxious to vote for a Democrat and his party who are committed to an extensive top-secret kill list of countless names of people deemed threatening without public evidence,” safe.  What–who–is safe in a state—any state—that has already fallen in line with Fusion Centers—those regional data-gathering centers that record just about everything and anything that is traceable about you? These are the same data warehouses that have enabled the current Administration to decide whose disposition is a threat to the state.  That would be the same “disposition matrix” that the Administration is so excited to use in its never-ending war on random brown people that they don’t like, especially since it justifies the use of pre-emptive policing, decreasing privacy safeguards that used to require warrants, subpoenas and evidence before persons and possessions were spied on, surveilled, searched. Of course, decreasing privacy safeguards for you and me is inversely correlated with increasing privacy and immunity for the state, to protect it from having to share its evidence—with the defense, with the courts, or the public. Not that any of that influenced last week’s findings by a Senate Investigative committee, despite its conclusion that Fusion Centers were an enormous waste of money. Apparently, the upending of privacy was not so much an issue; it was fairly low on the list of objections to the program.

Many of the same folks who rush to vote for Democrats at the national level, and accuse various folks of “racism” and white privilege are conspicuously indifferent about the fact that our liberal Massachusetts Democratic governor Deval Patrick just signed into law a MANDATORY MINIMUM Sentencing law—18 (EIGHTEEN) years after Big Dem Bill Clinton signed it into law. 18 years later, with countless stories about the increasing harassment of many black men and women for “felony” convictions for crimes like having stolen a slice of pizza, and after an increasing drug war–the good people of my “safe” state have barely noticed. As early as 2001–11 years ago–the ACLU issued a statement showing the horrific implications of mandatory sentencing:

“Restrictive sentencing guidelines and statutory mandatory minimum sentences have taken away the discretion of judges to tailor sentences to fit the individual circumstances of particular crimes and offenders. Thus the traditional requirement mandated by the Eighth Amendment that punishment maintain some proportion to the crime committed has been abandoned in the name of the ‘war on drugs.’
 
The result is the sentencing of many non-violent drug offenders to unjustly harsh prison terms where they crowd prisons already filled above capacity….Adding to this problem is the fact that mandatory minimums, designed with the noble intention of reducing the racial inequalities too often resulting from judicial sentencing discretion, in practice simply shifts discretion from the judge to the prosecutor. Prosecutors retain the power to plea bargain by offering defendants plea agreements that avoid the mandatory penalty. Studies have shown that this discretion results in a disparity in sentencing outcomes based largely on race and quality of defense attorney….
 
These harsher sentencing guidelines, and the billions of dollars poured into enforcement efforts, the incarceration of offenders, and the building of new prisons each year, have failed to curb drug use, which is still on the rise.”
 

Eight years later–in 2009, the American Bar Association objected to mandatory minimum sentencing for non-violent offenders and pointed to some of the severe ramifications: length of sentences has increased three-fold. The US incarceration rate is 5 to 8 times higher than Europe. 25% of the world’s population was incarcerated in US prisons (this number most likely excludes prisoners in “detention centers” like immigrants and “suspected terrorists,” who haven’t been charged with any crimes).  As well, people of color were disproportionately targeted under mandatory sentencing for drug laws—noting that crack was the only drug that induces it.

And yet, the outcry against the MA legislature’s passing of this bill this year—in 2012– was muted. Mostly silence even after our Democratic MA governor signed it. And yet, we’re worried that racism and misogyny only occurs under Republicans?  What about the increasing state-led targeting of people of color in one of the most “liberal” states of the Union?  Feeling safe? I’m betting they aren’t.

In addition to fusion centers and mandatory sentencing laws, we also have a “Secure Communities” (S.Comm) program to profile and cross-check the immigration status of anyone—ANYONE (so clearly it must be race-neutral, right? Um, that was sarcasm) who attracts the notice of law enforcement in the course of their duties: migrant women who might be in situations of domestic violence, migrants who have information about crime in someone’s neighborhood, a brown person who’s stopped for a traffic violation. Terrifying undocumented migrants into NOT reporting to the police only facilitates the break-up of communities. The destruction of trust between neighbors. The increased sense of danger among residents.  To his credit, Gov. Deval Patrick tried to resist the implementation of this policy in Massachusetts, only to be strong-armed into a mandatory enforcement by ICE commissioner Janet Napolitano, who works for…a Democratic President under whose watch a more stringent policy resulted in the deportation of 1.4 million migrants in the last 3.5 years. More—MANY—more than under the combined terms of the Bush Administration. Having to compromise with Republicans was the problem, I’m told. News flash #2: ICE deportation policy is independent of Repubican wishes. It is, however, decided in conjunction with POTUS and WH.

Upshot: Latinos and dark-skinned Muslims–especially if they appear remotely suspicious–should expect to have their residences, existence, morality questioned legally. Constantly. Daily. And white people? No worries. Just go on. Get your double skinny latte and be careful not to spill it on the leather seats of your Lexus SUV on your way to work.

Here’s another example of the “safety” of Massachusetts: We are “safe” from the crazy free speech terrorist Tarek Mehanna. Mehanna is a Pakistani-American. YES, he is a US citizen, born and bred. Educated in the US public schools, Mehanna was a pharmacist.  Charged with terrorism, Mehanna was alleged to have trained with a terrorist camp in Yemen for 2 weeks. On his return from Yemen, he began posting writings and fairly critical dissent online. The ONLY thing we have as proof of his terrorist leanings are evidence of his writings and dissent. And those were deemed threatening enough to lose first Amendment protections.  Apparently the first Amendment applies only to people who write things that the US state likes, like swooning propaganda about POTUS’ kill list and uncritical journalism (I’m tempted to put about 20 links. But I’ll resist).

How about Rezwan Ferdaus? Another Massachusetts resident, a U.S. citizen of Bangladeshi descent, who was convicted of terrorism by making IED detonators per request of undercover FBI agents. He pled—i.e. there was NO trial and so NO public evidence—to charges of attempting to destroy a federal building and “attempts to provide material support” to terrorists.” He was also a drummer in a rock band “Goosepimp Orchestra,” and went by the name “Bollywood.” Until 2010—when he was 25 years old—not 16, 18, or 20—he suddenly evinced an urge to kill Americans—at the prompting of undercover FBI agents. Really? At the age of 25, he undergoes a shift from drummer to terrorist? Clearly, young South Asian musicians need to watch out—they might find themselves overwhelmed by “terrorist leanings.”  Prior to 2010, Ferdaus’ only evidence of “terrorist” behavior was a high school prank—pouring cement on the doors of his high school as a senior, and smoking pot. Yes—such evidence of “terrorist behavior…just imagine. By this rubric, every male white high school senior is well on his way to being a terrorist. Wait. Except of course that they’re white. And Ferdaus is not.

This—notion of skin-color—of race—is not random or shrill. It’s not just a distinction of fact. It is a key conceptual distinction. Of a long-standing cultural-racial bias, which has been long-directed against men with black and brown skins. The assumption of guilt, of evil, of terror, of sexual violence has been a ubiquitous, historically evidenced, implicit charge directed against Black men. As Ida B. Wells and Angela Davis, among others have discussed, these assumptions are among the causes behind the shackling, whipping, and close oversight of thousands of young Black men under slavery—to protect the “virtue” of white women. It was the source of the lynching of thousands of men post-slavery, under Jim Crow.  The source of incarceration of thousands of Black men.

It was extended to thousands of brown men—Latino—and now Muslim: Young Muslim men are assumed to be beholden to the culture of terrorism. The argument is basically as follows: young Muslim men, in places like Palestine, Saudi, Egypt—are raised to understand “terror” as a valid form of expression. “Experts” never bother to illustrate how exactly a “culture” of terror always seems to be associated with brown men raised in Muslim or Arab (and Muslim-American) households, but never in white households like those of Ted Kaczynski, Timothy McVeigh, Terri Nichols, James Holmes or myriad of other perpetrators of mass violence.

It is nonsensical to ascribe a culture of terrorism to any of these shooters–white or brown.* As philosopher Uma Narayan argues convincingly, “culture” is difficult to ascribe to anyone without overgeneralizing, without overdetermining. In fact, we are all very much enveloped in different forms of culture—patriarchal culture, political culture, telenovela culture, fast food culture, exercise culture, yoga culture, sports culture. We pick and choose pieces of it, and many of those pieces overlap with segments of other cultures.  And yet, culture—however we want to understand it—is often deployed to assign either guilt (or praise) by association to someone by virtue of their family/ethnic/religious background. The mainstream media love to discuss domestic violence by brown Muslim men as part of “Muslim culture” and “honor killings,” but I rarely—make that NEVER—hear them discussing rape and domestic violence as part of “patriarchal culture.” In fact, by the same logic, we could argue that beating women and killing men is part of “white culture.” Spurious aspersions, methinks.

Similarly, the FBI, the CIA, the NYPD, the US DOJ have no problems doing the fallacious—the unthinkable: ascribing the most racist, most heinous motives to young men by virtue of their race, religion, or ethnic backgrounds (Black, Brown, Muslim, Bangladeshi, Pakistani—the list is endless)—through the flimsiest associations. In large part, this is because the U.S. has legitimated this way of thinking by building it into the legalized, pre-emptive, hunt for terrorists. Into legal bills such as the USA Patriot Act. NSEERS. The Military Commissions Act. FISA. H.R. 347. NDAA. No-Fly lists. TSA search policies. NYPD Surveillance Operations.  All of these, while ostensibly having a different function–legalize, proceduralize, and reiterate guilt by association: If you look like a terrorist—how often have we heard that?–then there is reason to search you.

Safe state. Indeed.

We know how keen the FBI is to surveil and entrap young Muslim men. In fact, it’s their new talent: find young men, preferably somewhat lost and finding their way in the world—and by all means they should be black or brown and Muslim—and lure them into feeling self-important for a cause other—bigger–than themselves. Hell, when I was 20, radical feminists could have easily lured me into damaging Laura Ashley stores in the hopes of turning young women away from grotesque, high-necked, badly designed frocks.

Is there a difference between the Democrats and the Republicans? Perhaps so. For a very small subset of folks who are still “safe” and can vote “safely” for their Democrat in their “safe” state. That difference is nearly nonexistent and/or rapidly waning when it comes to the quotidian existence of the poor, migrants, and brown and black men and women in every state—who must wake every day to check and see which side of the law they are on—and whose side they must curry favor to, in order to avoid the wrath of the law. Safe states. Safe for whom? Certainly not for young black and brown and Muslim men and women and their families.

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*An older version of this post mistakenly had the following sentence: It is nonsensical to ascribe a culture of terrorism to any of these white shooters.