June 16, 2013 § Leave a comment
The last four essays posted on this blog concerned different versions and elaborations of my objection to the targeted drone killings and broad surveillance by the Obama administration to locate and capture or kill people who seek to harm the United States. I have included a discussion of a friend’s disagreement with my objections. In the “Comments” section of the third essay, entitled “The Prism of Work”, I copied four sets of those objections and some supporting material related to them. I have also posted an essay by Sam Harris that emphasizes the seriousness of the threat posed by adherents to an extreme form of Islam that offers membership in paradise to any who wreak harm on America.
In the following essay I will contend that, although the threat of harm from terrorists is real, I nevertheless believe we should choose to maintain our safe haven from the dangerous intrusions of our government into our lives as well as its claim of authority to kill people, including American citizens living abroad, based on the secret judgment of a small committee composed of the President and a few of his advisers.
Some Historical Perspective
The Alien and Sedition Acts
Fear of harm from foreigners is a recurring theme in American history. In 1798, just nine years after adopting our Constitution and its Bill of Rights, the Federalist dominated Congress adopted the Alien and Sedition Acts. The Alien Act granted executive authority to the President to force the deportation of any foreign emigrant whom he regarded as “. . . dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof,. . . .” A companion act provided that a person would be guilty of “a high misdemeanor” if he should ” . . .unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty, and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not. . . .”
President John Adams signed these legislative panic buttons into law.
Thomas Jefferson, the Vice President and opposition leader of the Democratic Party, and James Madison anonymously authored a written , criticism of this legislation, known as “The Virginia and Kentucky Resolutions”, but that did not prevent several people from being jailed pursuant to it. The ACLU would make short work of these laws today, but a court’s right to declare void a law authorizing actions prohibited by the Constitution was not established until 1803, when John Marshall rendered his decision in Marbury v. Madison.
Jefferson won the 1800 presidential election and, after taking office in 1801, he pardoned everyone who had been convicted pursuant to the Alien and Sedition Acts during the Adams administration. The laws were never repealed, however, and Jefferson used them to prosecute a few of his own critics. They have never been formally overruled but later Supreme Court decisions referred to them disparagingly and made clear that, if challenged, they would not survive.
So, what caused the American Congress to cede such sweeping powers to President Adams and thence to President Jefferson? The French Revolution had begun with the assault on the Bastille in 1789. It continued for ten years, during which the French National Assembly adopted “The Rights of Man”, a list of rights that made uncomfortable the landed gentry who were running the fledgeling United States government. The radical French ideas were carried to America by French immigrants and, with support from Jefferson’s Democrats, the Federalists were fearful that some kind of revolution might ensue if these new trouble makers were not restrained. The Whisky Rebellion in Western Pennsylvania in 1792, and the execution of King Louis XVI in 1793 were unsettling to Federalists like Adams. They regarded the French revolutionists in ways similar to the way we fear Muslim terrorists: Foreigners hostile toward our institutions with a proven willingness to use violence to attain their goals.e
The Red Terror
There have been several perceived excuses for abandoning the limits on government. Anarchists mailed bombs to a lengthy list of politicians in 1919. The bombs did not succeed in killing any of the intended recipients, but they did kill some innocent staff members and friends as well as blowing off the hands of one housekeeper.
That, along with some strike violence (caused either by the strike-breaking cops and Piinkertons or by the union strikers, depending on your point of view) and the uneasy reaction to the Russian Revolution that began in 1917, gave Woodrow Wilson and his Attorney General A. Mitchell Palmer, an excuse for the infamous “Palmer Raids” between November 1919 and January 1920. 10,000 people were arrested and over 500 aliens were deported. Palmer authorized the raids but they were directed by J. Edgar Hoover, head of the Justice Department’s Bureau of Investigation’ s “Intelligence Division”.
Congress stoked these activities by adopting a new Espionage Act in 1917. The Act was amended and broadened in 1918. It provided a death penalty for anyone discouraging compliance with the draft. In a 1919 Supreme Court decision, Schenk v. U.S., Justice Holmes concurred in affirming a conviction of a Socialist who distributed pamphlets urging men to resist conscription. In his opinion Holmes coined the “clear and present danger” standard for government suppression of expression, often used by advocates of free speech to defend against censorship but, as stated, he voted to send the pamphleteer to jail. Later that same year, in Abrams v. U.S., he joined Justice Brandeis dissenting in a similar case because, he explained, the pamphlet in that case was “. . . a silly leaflet from an unknown man . . . .” Fortunately for the First Amendment, his “clear and present danger” statement is better known than the “silly leaflet” rule.
The Espionage Act, as amended in 1918, made it a crime for anyone to use “. . .”any disloyal, profane, scurrilous, or abusive language about the form of government of the United States … or the flag of the United States, or the uniform of the Army or Navy”. It authorized the Post Master to intercept any written material he regarded as containing anything prohibited by the Act.
Describing these laws, court decisions and even the out-of-control raids that they enabled do not truly give an adequate picture of the fear and panic that seems to have gripped the political leaders of our country in response to the threat of Bolshevism. The Russian Revolution, like the French Revolution 130 years earlier, was like a icicle stabbed in the heart of this country’s business class. They were concerned about unions and domestic socialists and anarchists but they were confident that those threats could be handled with the usual weapons of government suppression. The fact that a vast country in the world had been taken over by Bolsheviks in command of the Red Army was an entirely different kind of menace.
The Senate appointed Senator Lee Slater Overman to chair a special subcommittee to investigate Bolshevism. He heard testimony for months in 1918 and 1919. His committee finally issued its report in June, 1919. It was hair raising. The June 19, 1919 New York Times ran an eight column full-page spread on the report with the headline, “Senators Tell What Bolshevism in America Means”. The story made clear the fact that if Bolshevism came to America it would be the end of everything. The only evil thing the story failed to associate with Bolshevism was the Black Plague.
These Bolsheviks were not just rearranging the political furniture; they were tearing the government house down and were apparently willing and able to kill or jail the former occupants. This was by God SERIOUS!
I am not old enough to have lived in the decade or so between 1917 and 1929 but, from what I’ve read, the reaction of the corporate business class and the government it presided over to the Russian Revolution was far more fear driven and excessively geared toward government suppression than America’s reaction to 9/11, even with Bush continuously ringing giant alarm bells and Rudy Giuliani, in the words of Joe Biden, conducting a campaign for the Presidency with nothing but “a noun, a verb and nine eleven”.
It is one thing to face the threat of a bomb launched by a foreign enemy, but that does not equal the fearful possibility of an actual invasion and takeover by the bomb launchers. I do not know of any serious evidence that Al Qaeda wants to invade and occupy the United States. They do want us to get out of Saudi Arabia, stop invading their neighboring countries and stop arming their enemies. I do not agree with them. I regard them as murderous misguided zealots. But I don’t see any evidence that they aspire to invade our country.
Actually, of course, the Bolsheviks never tried to invade the United States. Their rhetoric, however, especially from Leon Trotsky, who never deviated from his “permanent revolution” doctrine, was perfectly tuned to produce a cold shiver along the spine of the denizens of Wall Street.
These historical references are my response to those who claim that the threat of harm from Muslim extremists is unique and, therefore, merits extraordinary remedies that have not been necessary in he past. My point is that the real threats we now face are no worse than those we have faced in the past. Our present enemies, as we perceive them, are no worse or fearful than our perceptions of our past enemies. And, while we have survived the foolish damage to our rights done by our past choices to relinquish our freedom in exchange for government’s promise of safety, I will argue that the kind of weapons that government will grasp if we docilely fail to stop this latest encroachment may be impossibly difficult to take back.
The Dangerous Nature of Governmental Metadata
Here is a link to a documentary video produced by Laura Poitras and published by the New York Times. Just wait through the Acura commercial. The ten minute video will give you an idea of the kind of dossier that Uncle Sam probably has on you and me and millions of other Americans. I hope you will then understand that we are not discussing databases containing only your telephone number and the telephone numbers of those with whom you have exchanged telephone calls.
I don’t claim to be an expert on the details of the surveillance programs we are discussing, but here is my understanding: The government for at least the last seven years has been obtaining from each of the suppliers of telephone service in America all of their recorded data consisting of every telephone call made by or to every one of their subscribers. That has been done because the FISA court has given a broad interpretation to a law that entitles government agencies to demand “business records” from any American business if those records are potentially useful to any proper function of the agency. The accumulated records of telephone calls are “business records”, ergo . . . .
Now, we are told by the government that, although they have all this information, they are not permitted to use it to identify any individual unless they have obtained from FISA an order entitling they to do so. And, they are required to have some “particularized suspicion” that the person whose records they access is somehow related to some matter pertinent to the “War on Terror” or whatever that metaphor is called in governmentspeak. My understanding is that they do not have to get a separate warrant for every individual whose records they look at. I understand that FISA’s orders set certain parameters for accessing those record and, within those parameters, the agencies or their contractor agents may use their judgment. And -listen up; this is important – all details of this process especially the parameters and the orders of the FISA court are top secret.
Now, we are not to worry about this secrecy because, as stated, a court [the top secret FISA court, that is] has oversight to prevent any abuses. Also, the Senate Intelligence Committee is also charged with oversight to see to it that this program is conducted according to the requirements of the Constitution and applicable law.
Here is a link to a Cspan video of Senator Ron Wyden of Oregon, a member of the Senate Intelligence Committee, speaking on the Senate floor in support of an amendment he wanted to append to the December 2012 extension of the FISA Amendment Act, which extended the life of FISA for another seven years. The Act was adopted a couple of days later. The chairwoman of the Intelligence Committee, Diane Feinstein of California succeeded in preventing Wyden’s amendment to be added to the bill. This is a long video (over an hour). I’ll tell you what the Senator was upset about: He and some other Congressmen had been trying for over a year to pry information out of NSA concerning the number of American citizens residing in the the United States whose records had been swept up in the metadata accumulation. NSA responded that information was unavailable. They then asked for a rough estimate, either based on the NSA’s records or on estimates made by some other source of information. The NSA refused to respond to that request.
Here is a link to a Mother Jones story about this Senate debate and its outcome.
[If you have time, you should listen to Wyden’s speech. He makes a perfect analogy between NSA’s dragnet approach to acquiring information and the “Writs of Assistance” used by the British to catch smugglers in the American colonies before the Revolution. There was much resistance to the British taxes on imports (“no taxation without representation”) so the Writs of Assistance allowed British agents to search the houses of citizens to see if they had imported goods for which no tax had been paid. Those writs were part of the reason for the Revolution.]
The official position of NSA is that records of domestic telephone users are not “intentionally” acquired, only incidentally or inadvertently acquired. Senator Wyden plainly regards that as nothing but BS and the refusal to grant his request for the facts only confirmed the results of his smell test.
So, given this information, my faith in the checks and balances and oversight that are claimed is equal to my belief in the Easter Bunny.
The “business records” authority, coupled with the AUMF authority, coupled with the Prism program exposed by whistleblower Snowden, means to me that the government already has the capability to know every detail about each of us: our telephone calls, our emails, our internet searches, our credit card purchases, our physical location at any time if we have a cell phone, our motor vehicle IDs . . . and God knows what else. They have this information in a digital database that is searchable and sortable based on algorithms designed by computer geniuses. They ask us to take their word that they will only use that information according to rules that we cannot know, based on court rulings that we cannot know, obtained without any adversarial process to insure that our privacy interests are protected.
This concerns me more than the threat of another 9/11 bomb for the following reason:
Horrific as the bomb will be, its effects will be temporary. We will die or grieve our dead and our country will survive. Digital data is not temporary and foolish misguided patriots, capable of using fear and intimidation to bully political constituencies are ever plentiful. I am not as fearful of the present misuse of this new compilation of information about all of us as I am of the various ways it will be there, like a ticking bomb, waiting for the next demagogue to choose a new target for government punishment or killing. Abortionists? Tax evaders? Political dissenters? Union agitators? Drug dealers? Drug pushers? Drug users?.
In the 60’s I represented two Lee High School kids here in Houston. They, without authorization, put some cans in the cafeteria to collect money for relief for Biafra. They wrote a little newspaper they named the Phlashlyte (I may have the spelling wrong. It was clever.) To get their paper printed they went to a friend at UofH who had access to a copy machine. Their friend was active in SDS (Students for a Democratic Society), then thought of by some as a radical group. They were suspended from school.
I was lucky enough to have my federal suit fall into Woodrow Seals’ Court and he gave me a trial. In the course of that trial I learned that the Houston Police Department had an “intelligence division” to keep track of “subversive” organizations. Houston ISD high school principals made weekly reports to these cops concerning any “suspicious” activity they observed. The Lee High School coach found the kids handing out copies of their newspaper, grabbed their papers and drove them away from the school grounds.
Woodrow granted an injunction designed to stop the harassment. The kids returned to school and, I suppose, went on with their lives. A couple of years later, another high school student was selling Space City News, a local underground newspaper, before school but near school grounds. The principal came out and told him he had to stop or the police would be called. He replied, “Fuck you and fuck the pigs!” He was suspended. I returned to Woodrow’s court to enforce his injunction. He ordered the kid back to school. He finished, got his diploma and went to A&M. HISD appealed Woodrow’s ruling to the Fifth Circuit. They ignored all my First Amendment arguments and ruled that, because of his disrespectful response to the Principal, he did not have “clean hands” and, hence, was not entitled to any relief.
My motion for rehearing was so disrespectful that my law partner required me to edit it severely before filing it. It did no good, of course. The Fifth Circuit left Woodrow’s injunction in force, so the only person left frustrated was me. My client, I suppose, got a degree at A&M and probably became a Republican.
The reason I mention this experience is that local law enforcement agencies already share federal databases [NCIS, e.g.] to assist them in apprehending criminals. It is an obvious next step for that kind of cooperation to include some or all of this new metadata treasure trove of information. It will occur, of course, after some especially horrific criminal episode involving dead children, raped women or similar outrage. When someone like me protests, he or she will be accused of lack of concern for the victims and their families. If the cooperation is disclosed by a whistle blower, he or she will be demonized. But the dossiers will be out there in the cloud, accessible to our vaunted “first responders”. Then, forget about the Fifth Amendment’s protection against self-incrimination. Everyone will have already “incriminated” themselves for every misdeed they ever committed or thought about.
When the government has this amount of information about everyone, the limits imposed by the Constitution don’t work.
There is only one solution to this problem: The databases must be destroyed under the close supervision of a federal court. The data must be erased and the medium containing it must be burned or crushed. There is no safe place for this kind of government metadata.
I know. That same data will still be in the digital vaults of private businesses. But private businesses do not have drones and guns and badges and military forces. They have only greed. I can live with greed. It comes with capitalism and dealing with that problem can await another day.