Random Musings on a Saturday Afternoon

May 11, 2014 § 2 Comments

I don’t have any important information to convey this afternoon.  I just need the disciplinary diversion involved in writing something to avoid focusing on sad reality.  My Beverly is nearing the end of her life and, having spent all but the first six years of my life in some kind of relationship with her,, I have no idea how I will proceed without her.  It is like contemplating the necessity for the surgical amputation of my legs or my eyes.  I’m sure I could survive it, but I am baffled about what that would be like.

The Sterling Absurdity

Unless you have been living in a cave, your brain has been saturated with breathless accounts of the mouthings of Donald Sterling, the pathetic racist cracker who owns the LA Clippers NBA basketball franchise.  The hilarity of this episode did not occur to me until I heard his explanation for his taped comments to a young black woman with whom he apparently had, or wanted to have,  a sexual relationship.  The relationship ended on terms that did not please her so she published one of their conversations in which he complained about her attending Clippers games accompanied by black men.

I found that news to be of limited interest:  Surprise, surprise:  This guy’s a racist.

A few days later, however, when he decided to defend himself, I was grateful for his exposure as a living punch line in a pretty funny joke.  Here is an 80-year-old  guy, who looks like death warmed over,  claiming  he was jealous of the black men who were squiring “his girlfriend” around.  He said his comments were not racist; they were an effort to persuade her to have sex with him.  In other words, this was his idea of effective foreplay.

Now I don’t claim to be expert on the subject but a couple of things seem obvious to me:  First, if old Don really wanted the black girl to go to bed with him, I don’t think it was a wise move to harangue her about associating with black men.  And second, and this is what was really funny to me, is it possible  this guy really thought that whatever relationship he had, or hoped to have, with this young, reasonably attractive woman had anything to do with his ideas, his personality or his opinions?   It must be obvious to everyone except silly Donald Sterling that if he wanted to have sex with a young woman, regardless of her color, the only thing in his pants that he might wave around was his wallet; forget about foreplay and seductive conversation.

Now, I know that I may offend someone because I find this funny.  I know the talking heads on TV are engaged in serious discussions about the propriety of having one’s private conversations made public; about this evidence of persistent racism in our culture; about the tension between private property ownership and offensive racism; etc. etc. etc.  I assume we will be treated to months of this discussion and, probably, to lengthy litigation.  I’m ok with that.  My opinion is that the proper people to analyze this matter are Jon Stewart and Stephen Colbert.

The Elephant and The Cell Phone

I include a link to one of the funniest online videos I have ever seen.  It has no political, economic or sociological significance.  I offer it only because it is both amusing and astonishing.  It is a short drama in two acts.  Be sure to continue to Act II.  The Elephant

Business As Usual on Wall Street

A day or two ago I became aware of a blog called “Naked Capitalism”.  It is managed by a veteran of Wall Street who now seems to take pride and glee in a sort of a “tell all” blog.  Imagine what would happen if Carl Rove had a “Paul on the road to Damascus” experience and decided to establish a blog exposing what really happens on the political right-wing.

A recent post describes a speech by Andrew Bowden, a SEC agent, to a meeting of private equity managers and their investors.  Private equities are entities set up to manage money invested by rich people.  The managers do not invest in publicly traded stocks.  They invest in private companies  they buy and sell.  Their investors agree, when they turn over their money, that they will not involve themselves in the managers’ decisions.  The arrangements, as they are described in the blog post, remind me of the relationship between a lawyer and a client:  The lawyer represents the client, but he or she does not allow the client to control the lawyer’s decisions and tactics.

The difference is that a lawyer’s job is limited to protecting and advocating the client’s legal rights and interests.  The client is entitled to complete access to all information concerning the lawyer’s billable expenses.  The lawyer can be fired at any time and so can the client. The private equity manager, by contrast has a duty to make the investor as much money as possible.  In practice, there is little transparency between the manager and the investor.  Until 2012, when Dodd-Frank was enacted, these arrangements were unregulated.  Mr. Bowden’s speech described what the SEC found when it began its oversight.  It is an eye-opener.

About fifty percent of the private equity managers investigated were found to be guilty of theft, fraud and various kinds of dishonesty.  Mr. Bowden’s speech described some of the nefarious practices and it must have been an emotional experience for some of the investors in the audience.  The obvious conflict of interest problems seem to be so prevalent  as to be commonplace, a sort of “everybody does it” thing.

Did that “fifty percent” sink in?  In other words, when these presumably sophisticated rich people decide to turn their money over to one of these private equity entities, there is a fifty-fifty chance  they are trusting a fortune to a con man or a thief.  Would you shoot craps with someone if you understood there was a fifty-fifty chance the dice were loaded?   I regard this information as additional evidence to a long-held suspicion of mine:  There is little correlation between intelligence and the acquisition of money.

Here is a link:  Private Equity

Epilogue

It’s Sunday morning and I haven’t posted this stuff.  I just watched “Reliable Sources”.   The host interviewed Mike Rogers about his imminent departure from Congress to become a radio talk show host.    He has crafted a political career around being the Congressional liar-in-chief concerning the government’s intelligence practices.  In multiple appearances on Sunday talk shows, he claimed that Edward Snowden’s disclosures endangered the lives of patriotic Americans around the world; that the NSA’s indiscriminate spying on innocent Americans  thwarted many serious and deadly threats of terrorist assaults on the U.S.; that the collection of telephone numbers of every American for the past seven years did not involve access to the content of telephone conversations except for carefully limited instances; etc. etc. etc.

No matter how many times these claims were found to be false; no matter how many times neither he nor anyone else, when challenged, failed to offer a single fact to back up Rogers’ claims; he persisted in spreading his lies.  It makes sense for him to become a radio talk show host.  He will now be paid big bucks for lying for a living.  He told the Reliable Sources host that he plans to use his show to interview present and former NSA officials.  So, we will now have these lies amplified through a tag-team of liars.

I think this NSA problem poses a classic First Amendment problem.   The underlying theory of the First Amendment is that public, open discussion is the best insurer of governmental integrity; that dishonest and misleading propaganda will be exposed by the right of others to publicly proclaim the truth.  But -and here is the problem – if the purveyor of the lies can hide behind laws protecting the truth from public disclosure, then the First Amendment does not work.  So, Mike Rogers can become a millionaire by hosting a radio show to trumpet his lies while Edward Snowden is branded as a criminal for disclosing the truth.  I know this is complicated.   Government cannot afford to sanction law-breaking.  But the end result is still troubling to me.

Bob

 

 

 

 

 

 

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Technology, the Law and the Constitution

January 6, 2014 § Leave a comment

Summary

Two federal district judges, within the past two weeks, have rendered squarely opposing decisions concerning the constitutionality of  NSA’s collection of metadata.  That metadata,  accumulated continuously since 2006, consists of the daily acquisition of the following information from all major carriers of telephonic communication within the United States:  The time, date and duration of every telephone call made within, to or from any telephone in the U.S.; the length of the call; the telephone numbers of the source and destination of the call; and the transmission tower which transmitted the call (thus identifying the physical location near where the call was made).  This metadata is held in NSA databanks, where it is retained for five years.

In Klayman v. Obama, Judge Richard J. Leon, ruled that this violated the 4th Amendment to the Constitution. 

In American Civil Liberties v. Clapper, Judge William Paulley III decided this was legal.

In the following post I will write about these two decisions, my opinions of them and what I perceive as serious implications from their rulings for the future of our country.

The Lead

One reason lawyers’ writing fails to command the attention of ordinary readers is that they don’t think like ordinary people.  Lawyers, like me, try to reason toward a conclusion by first stating the bases that lead to it.  After setting out those bases, the lawyer triumphantly announces the conclusion.

Newspaper reporters and writers, who write for a living, call this “burying the lead”.  The idea is not to bore the reader with long descriptions of facts, events and opinions before disclosing the purpose of the piece.

This is an effort to avoid that pitfall.

The two court decisions discussed below involve some very important legal issues that significantly affect the relationship between all of us and government, both federal, state and local:

In this digital age,  our communication capability depends on use of third-party facilities that relay the expression of our thoughts about everything in our lives:  Satellites, telephone towers and switch complexes, coaxial cables, and an array of other “hubs” that pick up the signals we emit from our phones, Ipads and computers and send them on their way to specific or general destinations chosen by us.  When property law is applied to those processes, the result is that we transfer ownership of our thoughts to those “hubs” when we tap screens or buttons on our communication devices.  So, when government wants to know what we are up to, it doesn’t have to involve us or even make us aware of its curiosity.  It can go to the “hubs” and intercept all the information it wants.

An ancillary legal result of this the legal principle  declares that if we share information about ourselves with a third party, we can no longer claim that it is private, not available for the scrutiny of others.  This idea that allowing one peep from one person entitles the world to peep is, fortunately, subject to an important exception:  If society reasonably believes that, regardless of having involved a third party in the transmission of our information, it should nevertheless be private and unavailable to unauthorized disclosure, then the Fourth Amendment imposes restrictions of government’s right to access it.

The Supreme Court has grappled with these principles for decades.   One case involved a policeman, sans warrant,  sticking a tape recorder to the side of a telephone booth and recording Mr. Katz’s end of a telephone conversation.  The Court held this violated the Fourth Amendment.  In another case, again warrant-less, police went to the telephone company switch room and attached a pen register that recorded every telephone number dialed by Mr. Smith for a period of thirteen days.  The Court decided that this did not violate the Fourth Amendment because Mr. Smith was presumed to know that the numbers he dialed were recorded by the telephone company.  Why?  Because every month he received a bill that listed those numbers.  So, five members of the Court ruled that he should have known that the government might have access to that information.

We now know, thanks to Edward Snowden that,  since 2006,  NSA has obtained, from all domestic telephone carriers, copies of every telephone call made to or from every telephone in the United States and has retained a database consisting of that information for the past five years.  This has been done without any warrant claiming  any of the callers were guilty of any wrongdoing.  The accumulation of this information has been done pursuant to orders of the FISA court, but the only justification for securing those orders has been a showing that the information was relevant to the effort to thwart terrorism.

The two federal district court cases discussed in the following essay represent two opposing views of the above mentioned legal principles and their proper application to this metadata acquisition and accumulation.  If the Supreme Court ultimately decides that we are like Mr. Smith, then any government agency can track all of our communications, telephonic or otherwise, if they involve third party hubs.  They won’t be able to listen to our conversations but they will be able to know whom we communicated with and who communicated with us, when, for how long and where we were when the communication occurred.

If they decide, as Judge Leon did in the Klayman case, that we did not reasonable anticipate, when me engaged in digital communication for the past five years, that the government would be tracking each of those communications and maintaining a record of them available for future access, then the Fourth Amendment will protect us.  If they agree with Judge Paulley’s decision in the A.C.L.U. case, the Fourth Amendment will be inapplicable.

I believe this is a turning  point in this experiment of ours:  How to balance freedom and security in a democracy.  If the Fourth Amendment  allows the federal government to do what NSA has done, that same Fourth Amendment is the only barrier to the same kind of surveillance by state and local government agencies.  Everyone wants to be protected from a terrorist bomb.  I believe too little attention is being paid to the danger of NSA type surveillance by the Ted Cruz administration or by some rural county sheriff targeting political enemies or by the DEA waging the “war on drugs”.

So, here is my “lead”.  If you are interested in how two federal district judges have reacted to these issues, read on.

The Judges and the Parties

Judge Richard Leon was a classmate of later-to-be Supreme Court Justice Clarence Thomas.  He was appointed to  be a federal district judge in the D.C.  Circuit by President George Bush.

Judge William Pauley III was appointed to be a federal district judge in the Southern District of New York by President Bill Clinton.

Larry Klayman is counsel for the plaintiffs in the Klayman case.  Ignoring the time-honored maxim that a lawyer representing himself has a fool for a client, Klayman is both counsel and one of five plaintiffs in the case.  His career exemplifies the reason  lawyers have a bad reputation:  In 1988, he sued his mother for $50,000, seeking reimbursement for medical expenses incurred on behalf of his grandmother.  His brother reported this to Newsweek and, when it published the information, Larry Klayman blamed the Clinton White House, with which he had been feuding.  Two different federal judges, one in California and one in New York, banned him from appearing in their court because of his misbehavior.  The Florida Bar Association publicly reprimanded him for mishandling a suit for a client.  He has filed numerous suits against government agencies.  He sued Rachel Maddow for defamation.  The case was dismissed and he was ordered to pay several thousand dollars to reimburse her for defending the groundless suit.  This is only part of a Wikipedia description of this lawyer.  Unfortunately, he is in charge of an important lawsuit.

The other named plaintiff, Charles Strange, is the father of a former NSA employee who was killed in a Seal Team operation.   His apparent motivation for this litigation is based on his belief that NSA was responsible for his son’s death.  Judge Leon dismissed the claims made by the remaining three plaintiffs because they were not subscribers to any telephone carrier.  There is no apparent explanation for Klayman choosing himself, Mr. Strange and three others who did not subscribe to telephone service as plaintiffs seeking relief in federal court for the government’s misuse of telephone service.  Surely, of the more than 250 million telephone subscribers in America, there were other more appropriate plaintiffs.  But, who am I to argue with success?

Klayman intends to expand his suit as a class action.  Judge Leon has made no ruling on that application.  One issue will be whether Klayman and Strange are appropriate representatives of what will surely be a very large class or telephone users.  That may prove to be an interesting issue.

The Klayman Decision

Having expressed my  opinion, in several thousand words, of the NSA’s metadata accumulation, I assume it is obvious that I agree with Judge Leon and disagree with Judge Pauley.  So, I am certainly biased.  But, if you read even a part of Judge Leon’s opinion, I think you will see that he has crafted a creative opinion, dealing fully with the counter arguments he anticipates and carefully declining to rule on issues unnecessary to his conclusion.

     The Standing Issue

Federal courts have limited jurisdiction.  Before they can render a judgment, they must have before them a “case or controversy”.  This has been construed to mean that the party seeking relief must prove that he or she has sustained or will sustain a violation of some legal right if  relief is not granted.

Before the Snowden disclosures, this was a serious barrier to obtaining judicial review of  NSA’s surveillance practices.  Secrecy prevented people from knowing the government had acquired information about their telephone subscriptions.  So, they could not establish standing to challenge the activity.  When documents disclosed by Snowden revealed that NSA maintained metadata consisting of every telephone number of every telephone used in the U.S., any telephone subscriber acquired at least an arguably valid claim of standing to challenge that NSA practice.

Once that threshold was breached, the issue became:  Did the NSA’s acquisition of the information violate any right?

The ultimate outcome of the conflict between the Klayman case and the Clapper case depends on whether  NSA’s collection of data about a telephone number without any claim that the subscriber has violated any law or regulation violates the subscriber’s rights.

     Judge Leon’s Careful Limits on The Scope of His Decision

The judge wisely disclaims any opinion about the broad accumulation of internet, email and social media data in the program called “Prism”.    He agreed that plaintiffs’  claims of injury because of that program were too vague and speculative to qualify for standing.   Thus, he seeks to avoid conflict with the Supreme Court decision in Clapper v.Amnesty Int’l, wherein the Court held that Amnesty’s fears that their overseas telephone calls to clients and others would be intercepted by NSA were too speculative to qualify for standing to bring suit.

During oral argument Judge Leon asked Larry Klayman whether he had any evidence that the government had accessed any of his or Charles Strange’s online activity.  Klayman responded, “I think they are messing with me.”  Not surprisingly, the Judge decided this fell short of establishing standing to complain of government’s monitoring of internet traffic.  In addition, Judge Leon’s opinion cites two statements by NSA that the process of wholesale accumulation of email and internet metadata was discontinued in 2011. [Page 4, footnote 6]  Thus, the injunctive relief sought by the plaintiffs would be moot.

The Admiinistrative Procedure Act Claims

The plaintiffs alleged that NSA and the FISA court exceeded the authority granted by Congress when they ordered the acquisition of the telephonic metadata.  The APA contains a broad grant of jurisdiction to federal courts to hear such claims.

Judge Leon ruled against the plaintiffs and included a lengthy analysis of the issue in his opinion.  As construed by previous decisions, the general grant of jurisdiction in the APA is subject to an exception:   If Congress has declared, or at least plainly implied, by other legislation, that challenges to the authority of a particular federal agency must be made according to a procedure specifically designed for making such challenges, that procedure must be followed and the general sweep of the APA procedure is inapplicable.  Because the law creating the FISA court includes specific procedures for challenging its rulings, Judge Leon rules that the general grant of jurisdiction in the APA does not apply.  He therefore denies all claims made by the plaintiffs based on the APA.

      The Non-Subscriber Plaintiffs

As stated earlier, for reasons best known to him, Larry Klayman picked three of his plaintiffs from the relatively small number of Americans who have no telephone service.  So, Judge Leon dismissed their claims because they had no basis for complaining about the government’s acquisition of telephone information..

To summarize, he limits his ruling to the accumulation and analysis of telephonic metadata.  He bases his decision solely on the 4th Amendment, disclaiming any opinion about conflict with the 1st Amendment.

     The Fourth Amendment Claims

     The Statutory Basis For Government’s Acquisition and Use of Telephone Metadata

50 U.S.C. 1861, a part of the Patriot Act,  has been construed to authorize the FBI to file an ex parte application in the FISA court seeking the right to seize and copy “call detail records” of all telephone calls made to and from telephones located in the U.S..  The application must include a “statement of facts showing that there are reasonable ground to believe that the tangible  things sought are relevant to an authorized  investigation. . .to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” quoted at page 11 [emphasis added]

As a result of Snowden’s disclosures, made though The Guardian, we now know that these applications have been filed and granted for the past seven years.  Based on them, the NSA has required all domestic telephone carrier companies to forward to NSA each day, call detail records of every telephone call made within the U.S..

Here is a description of a “call detail record” taken from Judge Leon’s opinion, quoting from a FISA order disclosed by Snowden and acknowledged to be authentic by the government:  “For purposes of this Order ‘telephony metadata’ includes comprehensive communications routing information, including but not limited to session identifying information(e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, Internationsl Mobile Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call.” [page 15, footnote 16]

Based on FISA orders like the one just quoted, NSA has a five-year database containing that information obtained from all carriers

     The Way NSA Accesses and Uses Its Five-Year Accumulation of Metadata

Judge Leon accepts the Government’s own description of its use of its metadata.  The process starts with a ‘seed”, described as a telephone number originating with a person of whom NSA has a “reasonable, articulable suspicion” (RAS) as being somehow connected with a foreign terrorist organization.  When the seed has been identified, the seed’s telephone number is used as a starting point for identifying others with whom the seed has been in contact.

Here is Judge Leon’s description of this process:

“In plain English,h this mean that if a search starts with a telephone number (123)456-7890 the first “hop” will include all the telephone numbers the “seed” has called or received calls from in the last five years (say, 100 numbers),the second hop will include all the telephone numbers that each of those 100 numbers has called or received calls from in the last five years (say 100 numbers for each of the “first hop” numbers” or 10,000 total), and the third hop will include all the phone numbers that each of those 10,000 numbers has called or received calls from in the past five years (say,100 calls for each of the “second hop” numbers or 1,000,000 total).”  He concludes “. . . it is likely that the quantity  of phone numbers captured in any given query would be  very large.”. [Opinion page 18]

For more of the Judge’s analysis see footnote 21 at page 19 of the decision.  The Judge remarks that the NSA spokeswoman who sought to trivialize the number of telephone numbers typically accessed in response to a RAS was guilty of  a “glaring understatement” and that her assurance that the total number of telephone numbers analyzed based on a “seed” was a “small percentage” was “virtually meaningless when placed in context.”  Judge Leon observed that, if one of the telephone numbers used to identify the “seed”‘s contact happened to be a Domino’s Pizza, the result would be expanded dramatically.

Here is Judge Leon’s description of NSA’s analysis process after the “three hop” search has created a new sub-group of telephone numbers:

““Once a query is conducted and it returns a universe of responsive records (i.e., a universe limited to records of communications within three hops from the seed), trained NSA analysts may then perform new searches and otherwise perform intelligence analysis within that universe of data without using RAS-approved search terms. [citation omitted]  According to the Government, following the ‘chains of communication’ – which, for chains that cross different communications networks, is only possible if the metadata is aggregated – allows the analyst to discover information that may not be readily ascertainable through other, targeted intelligence-gathering techniques. [citation omitted]  For example, the query might reveal that a seed telephone number has been in contact with a previously unknown U.S. telephone number – i.e., on the first hop.  [citation omitted]  And from there, ‘contact-chaining’ out to the second and third hops to examine the contacts made by that telephone number may reveal a contact with other telephone numbers already known to the Government to be associate with a foreign terrorist organization.” [Opinion, page 20]

     Fourth Amendment Claims Not Precluded

As discussed earlier, Judge Leon ruled that Plaintiffs’ claims based on the APA were precluded by the Congress’s appeal procedure from actions by the FISA court.  He distinguished that from preclusion of constitutional claims based on the Fourth Amendment.  Citing Supreme Court precedent, he wrote that denying the right to bring a constitutional claim in federal court required a significantly more explicit expression of intent by Congress than required for precluding statutory claims.  Here is his analysis:

““The presumption that judicial review of constitutional claims is available in federal district courts is a strong one [citation omitted] and if the . . . heightened standard is to mean anything, it is that Congress’s intent to preclude review of constitutional claims must be much clearer than that sufficient to who implied preclusion of statutory claims.  Where, as here, core individual constitutional rights are implicated by Government action, Congress should not be able to cut off a citizen’s right to judicial review of that Government action simply because it intended for the conduct to remain secret by operation of the design of its statutory scheme.  While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution.” [Opinion, page 35][emphasis added]

      The Plaintiff’s Claims That Their Telephone Numbers Were Accessed and Analyzed Are Not Speculative

Judge Leon rejected NSA’s contention that the Plaintiffs’ claims were speculative because they could not prove their particular telephone numbers had been accessed and analyzed.  He caught the government simultaneously arguing that, to be effective in combating terrorism, it had to have access to all telephone numbers; then contending that the Plaintiff’s telephone numbers may not have been accessed or analyzed.  His demolition of this twisted logic is a pleasure to read.  Here is a footnote that is a classic piece of lawyering:  Cutting through complexity with easily understood analogy.

““The difference between querying a phone number belonging to a domestic Verizon subscriber (for which metadata has been collected) and querying a foreign number (for which metadata has not been collected) might be analogized as follows:  A query that begins with a domestic U.S. phone number is like entering a library and looking to find all of the sources that are cited in Battle Cry of Freedom by James M. McPherson (Oxford University Press 1988).  You find that specific book, open it, and there they are.  ‘Hop one’ is complete.  Then, you want to find all the sources cited within each of those sources (‘hop two’), and so on.  At the end of a very long day, you have looked only at books, articles, etc. that were linked to Battle Cry of Freedom.

“Querying a foreign phone number is like entering a library and trying to find every book that cites Battle Cry of Freedom as a source.  It might be referenced in a thousand books.  It might be in just ten.  It could be zero.  The only way to know is to check every book.  At the end of a very long month, you are left with ‘hop one’ results (those books that cite Battle Cry of Freedom), but to get there, you had to open every book in the library.” [Opinion, page 40, footnote 18]”

It seems to me that Judge Leon has effectively ended any argument about whether  any U.S.  telephone subscriber’s telephone number, including information  related to that telephone number, has been acquired, accessed and analyzed by the Government.  The “speculative” defense has, I think, been destroyed.

     The Right of Privacy, the Fourth Amendment and Smith v. Maryland

The last twenty-five pages of Judge Leon’s opinion, (pages 43-68), are an essay on the impact of modern technology on the appropriate legal analysis of Fourth Amendment rights.  He begins with a discussion of Smith v. Maryland, the Supreme Court case that is relied upon by all defenders of NSA’s metadata program.  That case, decided in 1979, involved a robbery victim who, after the robbery, received threatening phone calls she associated with the robbery.  When she complained to the police, they arranged with the telephone company to attach a pen register to the telephone line belonging to Smith, a suspect in the robbery.  They did so without a warrant or a court order.  The pen register disclosed that, during the thirteen days it was attached to Smith’s phone line, a call was made to the victim’s home.  That became a key piece of evidence leading to Smith’s conviction.

Judge Leon cites abundant evidence that the technology at issue here is dramatically different from the brief pen register attachment in Smith.  Without attempting to summarize all of his reasoning, suffice to say that he argues that applying the Court’s reasoning in Smith to the NSA’s surveillance program is like comparing traffic safety regulations designed for horse and buggy traffic to those appropriate for modern freeway driving.

The standard applied by the five Justices who wrote the opinion in Smith was the one announced in an earlier case, Katz v. U.S., which held that attaching a listening device to a phone booth and recording a conversation by  a caller violated the Fourth Amendment.  There the Court, following earlier precedent, ruled  that the Fourth Amendment protected a right of privacy reasonably assumed to exist by society.  The Court ruled that, because Smith, as a telephone subscriber, knew  his telephone calls were recorded by the telephone company in order to prepare his bill, he had no reasonable expectation that the telephone numbers he called were kept private.

Judge Leon contends that these decisions are wildly in-apposite to a belief that the average American telephone user assumes that the government is maintaining and has maintained a giant database consisting of every telephone  number of every call they make and of every call made to them; that this data is retained, accessed and analyzed by the government for five years .

The Judge cites other Supreme  Court decisions which, to me, are more pertinent to the issue.  For example, in one decision, the Supreme Court held that the Fourth Amendment was not violated when the police attached a short range tracking device to a suspect’s car and used it to track him on one occasion.  The Court held that, when we drive about, we have no expectation that our movements may not be observed by others.  In another case, however, the Court held that the Fourth Amendment was violated when the police attached a long range beeper to a suspect’s car and used it to track his movements for a month.

     The NSA’s Collection of Metadata is Unreasonable

In the concluding part of his opinion, Judge Leon responds to the Government’s claim that the acquisition and retention of its metadata was and is necessary because seeking judicial approval would take too long.  He wrote that NSA cited three instances where they used the metadata in apprehending an alleged terrorist.  In all three, the metadata was accessed after  the suspected terrorist had been identified using other conventional means.  The metadata was used either to find another participant in a plot or to confirm information already known.  In none of the examples cited by NSA was speed a factor.

American Civil Liberties Union v.  Clapper

In this case Judge Paulley discusses and considers each issue ruled upon by Judge Leon.  He agrees that A.C.L.U has standing because of the disclosures made by Snowden.  He agrees with Judge Leon that A.C.L.U.’s claims based on the Admiinistrative Procedure Act fail for the same reasons cited by Judge Leon.

He disagrees with Judge Leon’s bases for distinguishing Smith v. Maryland.  He contends that, while telephonic usage and technology have dramatically changed, a telephone is still a telephone.  For Judge Pauley, when the Supreme Court decided that a pen register could be attached to Mr. Smith’s telephone without a warrant, that settled the issue:  One telephone or 300 million telephones, thirteen days or five years, Judge Pauley can’t see any difference.

He discusses the possibility that NSA might utilize a database of 300 million telephone calls over a five-year period to look for some patterns of behavior that might involve more prying into the lives of innocent citizens than was possible when the government attached a pen register to a single telephone line.   Here is how he dismisses such fears:

““. . . , without resort to additional techniques, the Government does not know who any of the telephone numbers belong to.  In other words, all the Government sees is that telephone number A called telephone number B.  It does not know who subscribes to telephone numbers A or B.  Further, the Government repudiates any notion that it conducts the type of data mining the ACLU warns about its parade of horribles.”  [Opinion, page 41]  He buttresses his confidence on this point by citing this reassurance from General Alexander:

“General  Alexander’s testimony on this point is crystal clear: ‘]I]n the open press there’s this discussion about pattern analysis on this.  That is absolutely incorrect.  We are not authorized to go into the data, nor are we data mining, or doing anything with the data other than those queries that we discuss, period.  We’re not authorized to do it.  We aren’t doing it.  There are no automated processes running in the background pulling together data trying to figure our networks. . . . The only time you can do pattern analysis is, once you start the query on that query and where you go forward.’  Alexander Testimony at 66”

This exemplifies Judge Paulley’s entire approach to the case:  He accepts without any hint of skepticism every reassuring statement from NSA witnesses.  Here is an example that he includes in his opinion.  I think this is dishonest because he cites and discuses Judge Leon’s opinion and therefore is bound to know how misleading these numbers are.

“Because each query obtains information for contact numbers up to three hops out from the seed, the total number of responsive  records was ‘substantially larger than 300, but. . ..still a very small percentage of the total volume of metadata records.’ [quoting an NSA declaration ]  Between May 2006 and May 2009,the NSA provided the FBI and other agencies with 277 reports containing approximately 2,900 telephone numbers. [citation of NSA declaration omitted]”  [Opinion, page 12]”

Without the information in Judge Leon’s opinion, we might conclude that we are all exaggerating the importance of this argument.  2,900 telephone numbers doesn’t look like much of a trove of data.  It also conceals what NSA actually does.

Judge Paulley discusses the automobile tracker cases cited by Judge Leon.  He argues, however, that the decision finding that a Fourth Amendment violation had occurred was based on the fact that the device left on the suspect’s car for a month was placed there in a way that caused the Court to equate it with an actual intrusion into the car.  That does not comport with the quotation from the second decision quoted in Judge Leon’s opinion.  See Judge Leon’s opinion, pages 46-47.

Conclusion

These two federal district court decisions neatly contrast the nature of the debate in progress in our nation.  Like any debate, the statement of the issue is important.  I believe a fair version of the issue is:

What is the most serious and fundamental threat we face:  Bombs from a foreign terrorist or our government’s effort to protect us?

I contend the answer is “our government’s effort to protect us”.    My contention is based on my understanding of history.  It seems to me that ceding power to government is always an irreversible transaction.  Once acquired, power is never relinquished.  I fear this NSA surveillance because it is power given to an agency that operates in secrecy; whose operational purpose, spying, is one that succeeds by lying and deception.  Everything about it is anathema to the safeguards of a legal system and a Constitution that has force only if enforceable in court.

Even if we  trust the present managers of these powers, allowing the creation of such potentially damaging weapons will serve as a temptation for abuse for countless generations.  Already, local police chiefs and county sheriffs are clamoring for access to this gigantic mass of information about every person in this country.  Are we so naive as to think that information will not sooner or later be used to punish political enemies or to crush unpopular dissent?

LIke all my fellow Americans, I am waiting with a mixture of hope and apprehension for the decision of President Obama concerning the proper limits of these surveillance programs.  I hope his background as a constitutional law professor will give him courage  to accept the risk that ,if he reins in  NSA and a terrorist bomb explodes during his presidency, he will be blamed.

I will be watching and hoping.

Bob

The Surveillance Debate

November 3, 2013 § Leave a comment

My friend Sid Eschenbach,  with whom I have sparred at length about the NSA surveillance program, sent me a link to a great source of information about it, published by the Guardian.  Here is that link:  Guardian Surveillance

This comprehensive source of information is interesting and factual.  It deserves the widest possible distribution.  I think it raises issues that will determine the kind of country we want America to be and to become.

My debates with Sid have caused me to think beyond my initial hostility toward government’s intrusive snooping.  The real question is:  How can we preserve our interest in being let alone while permitting our government to take sensible steps to protect us from harm?  The Fourth and Fifth Amendments to our Constitution express our willingness to take some risk as a  price of freedom, but how much risk?

I have been pleased to learn that significant numbers of my fellow countrymen/women share my anxiety about this matter and, according to recent polling, seem willing to accept some risk in exchange for preserving limits on government power.

The challenge, as I see it, is to craft legislation that permits the use of government surveillance to thwart efforts by foreigners to commit terrorist attacks on the United States, while prohibiting the use of that surveillance in criminal prosecutions or in civil or administrative proceedings.

The history of Fourth Amendment law is useful as a guide toward that result.  After decades of abuse by law enforcement agents, the federal courts finally used a remedy that was generally effective:  the “exclusionary rule”.  That rule made evidence obtained as a result of any method that violated the Constitution inadmissible in a criminal proceeding.  In effect, it told cops, “If you beat a confession out of a suspect, he will be set free even if he is guilty.”  It did not eliminate the problem, but it did require cops to perjure themselves in order to excuse their lawlessness.  The possibility of going to prison moderated the zeal of many cops.

That is the remedy that might correct some of the surveillance abuses.  “Terrorism” would have to be carefully defined in the law.  The law would prohibit the use of any information or evidence obtained, directly or indirectly,  pursuant to the laws serving as a basis for NSA’s surveillance programs in any criminal, civil or administrative proceeding , followed by two exceptions:  First, the law would not apply to prosecution of “terrorists”.  Second, the law would not apply to evidence obtained pursuant to a warrant issued by a court of competent jurisdiction.  The law would declare that it was not intended to diminish or impair any right protected by the Fourth or Fifth Amendments to the Constitution.   Finally, the law should prohibit any court from issuing a warrant based on “pattern of life” claims and any warrant not directed at specifically identified individuals or corporate entities.   Blanket warrants permitting data vacuuming would not be permitted.  This would not prevent that kind of metadata accumulation for the limited purpose of detecting terrorists, but it would prevent the use of evidence obtained pursuant to such warrants for any other purpose.

The Constitution does not prescribe limits on the extent of the rights it protects.  Congress can enlarge and extend those rights.  This law would do so.

I am not sure these restrictions will be enough to protect us from government abuse.  I would much prefer a blanket ban on government acquisition of metadata for any purpose, requiring a court order based on specific need and fact-based reasonable suspicion as a prerequisite for access to such data.  I have what I believe is a well founded fear that, no matter what legal restrictions are imposed, zealous bureaucrats will get around them through absurd opinions written by unethical lawyers and, if all else fails, through perjury and deceit.  The recent lying to a congressional committee by James Clapper, Director of National Intelligence, who has not been prosecuted for perjury, plainly supports my fears on this score.

I am very encouraged by the news that Glenn Greenwald has obtained funding for the launch of a new news service that will be based on the muck-racking tradition of journalism identified with Ida Tarbell, Upton Sinclair, Ray Stannard Bakee and Lincoln Steffens.  It may be that, once again, the First Amendment will save us from government run on the East German Stasi model.

Bush’s Dumb War and Obama’s Global Track and Whack War

August 25, 2013 § Leave a comment

Summary

This essay will be my response to Jeremy Scahill,’s book, “Dirty Wars:  The World is a Battlefield”.   The book is a 528 page indictment of George W. Bush and Barack Obama for waging a “Global War on Terror” featuring military invasions of over a hundred countries; bombing raids based on generalized probability, rather than specific targeting of suspected “terrorists”; maintenance of secret prisons  where inmates  were interrogated and, during the Bush years routinely tortured; imprisonment for indefinite terms without access to courts or lawyers, and drone aircraft used for surveillance, missile and bombing attacks causing death and injury to thousands of civilians who had nothing to do with the bombing of New York in September, 2001.

The book is based on evidence scrupulously gathered and compiled by Scahill, an accomplished and courageous reporter.  The text is followed by 92 pages of notes, detailing the sources and interviews of countless people, warlords, former and active members of the military and CIA with personal knowledge of the events and practices described in the book, family members of victims of the raids, attacks and “snatch and grab” activities that filled the prisons scattered in remote locations in the Middle and Near East, as well as other reporters and analysts who shared their investigative efforts through published sources.  There is no doubt that Jeremy Scahill has an opinion and point of view concerning the subject matter of his book but, unlike the politicians and apologists who defend the practices he describes, Scahill states his opinions plainly, backs them with facts, and does not disguise them with artful words designed to deceive the reader.

Bush, Cheney and Rumsfeld – The Dumb War

      The Dumb Designation of a Crime as a War

A group of criminals flew planes into two office towers in New York and the Pentagon in Washington D.C..  They did so as part of a carefully planned conspiracy directed by Osama bin Laden, the al Qaeda leader and strategist.  Unfortunately for our country, and fortunately for militant Islamist groups around the world, the damage and harm done by the conspirators was enhanced because it happened when our government was in the hands of some ruthless and radical men who had been waiting impatiently for more than twenty years for an opportunity to reshape the rules that protect Americans from abusive government power.

In the 1970’s, Presidents Lyndon Johnson and Richard Nixon used the powers of the presidency to wage war in Vietnam and Cambodia without effective oversight by the Congress or the courts.   Because it involved thousands of young male conscripts, over 50,000 of whom died there, the pain of those losses, expressed by millions of outraged and grieving American mothers, forced Congress to take steps to limit presidential power to make war.

Bob Eckhardt, a brilliant Congressman from Texas, drafted the War Powers Act of 1973.  Congress enacted it.  Nixon vetoed it.  Congress overrode his veto and adopted it.  It was intended to require active Congressional involvement in decisions to wage wars.

By September, 2001, three developments had occurred that weakened the force of the 1973 law.  First, the draft was ended and the military was staffed with professional soldiers , so war threats no longer affected a broad cross-section of American families.  Second, the Reagan years had spawned a new and powerful group of GOP political leaders who were committed to restoring power to the presidency.  They were called “neo-conservatives”.  They preached the “exceptionalism” of America and appealed to a kind of jingoistic patriotism, a new iteration of the “Mainifest Destiny” of the 1840’s and 1850’s, a doctrine used to justify the relentless war on native Americans and wars against Mexico, the Philippines and Cuba.  Dick Cheney and Donald Rumsfeld were early and enthusiastic neo-cons.  Third, the 1990-91 Gulf War against Iraq required only six months, had minimum loss of American life and was ended as a clear victory that enabled Americans to enjoy the overwhelming “shock and awe” inflicted on Saddam Hussein’s overrated army.

So, given these facts, the 9-ll bombing afforded Cheney, Rumsfeld and the compliant President Bush an opportunity to rid the presidency of the nettlesome restrictions imposed by the War Powers Act, as well as the Bill of Rights, the domestic and international laws against torture of prisoners, and the laws against assassinations imposed by Presidents Ford and Carter.  Cheney & Co. regarded all those measures, including the Constitution, as barriers to the proper exercise of presidential power.  Therefore, instead of proceeding to apprehend the criminals who designed and enabled the bombing, it was marketed according to an in-apposite metaphor: as an episode in the “Global War on Terror” perpetrated by “Islamoterrorists”.  It was compared to the December 7th bombing of Pearl Harbor.

Instead of taking advantage of the almost universal offers of assistance from other industrialized nations throughout the world, and tracking down Osama bin Laden and his co-conspirators, arresting them if possible and killing them if not, the Congress adopted an ambiguously worded hunting license to President Bush and turned him loose on the world and the United States Treasury.  The enemy was undefinable and the battlefield was boundless.   It was a war against a weapon:  any plan or device intended to terrorize people, and the enemy was anyone suspected of planning to use such a weapon and anyone suspected of helping anyone to obtain or use such a weapon against the United States.

This was without precedent in the history of the world.   Wars had been fought over territory,  over trade routes and advantages, over religious differences, over competing claims to sovereignty and political leadership positions.   No war had ever been fought over the use of a weapon.

A state of war is essentially a state of lawlessness.   Homicide, theft, malicious destruction of property, assault and battery are all legal if committed during a war on a battlefield against an enemy.  Modern weaponry has rendered the distinction between civilian and military targets meaningless because, when a bomb is dropped or a missile fired toward a suspected enemy , there is no practical way to insure that innocent persons will not suffer injury or death.  So, when an American president is given the right to use the most powerful military arsenal in the world against a undefinable enemy in an unlimited battlefield, all laws, including the Constitution, intended to protect against abusive power are nullified if they impose limits on waging that war.

There are so-called “laws of war” that impose humane limits on the brutality of armed conflict.  Even those weak limits were cast aside by an exquisite feat of sophistry:  The lawyers for the “Global War on Terror” [GWOT] claimed that the GWOT warriors were immune from prosecution because they were soldiers in a war, but their victims were not entitled to the protection of the “laws of war” because they were not actually soldiers.  They were “enemy combatants” who, like spies caught without uniforms, could be dealt with summarily.  The Supreme Court finally set some limits on this absurd argument, but still refused to accord GWOT prisoners the rights of prisoners accused of or convicted of crimes who are held without trial for indefinite terms of years.

     A Dumb Way to Wage a Dumb War

After Congress adopted the “Authorization for Use of Military Force”, the AUMF hunting license, Cheney and Rumsfeld decided to shroud their GWOT in a veil of secrecy that would avoid oversight by the legislative branch of government and First Amendment oversight in the form of public scrutiny.  The CIA was designed as the official agency for secret activity in foreign territory but, over the many years of its existence, the CIA adopted certain rules that limited its use of lethal force and prohibited it from engaging in the torture of prisoners.  Not only that, but the CIA operated according to an established system of oversight by Congress.  That attention to the Constitution’s system of “checks and balances” was unacceptable to the Bush GWOT team.

Rumsfeld solved this problem by using his job as Secretary of Defense to empower the Joint Special Operations Command [JSOC] to be the main force used to wage the GWOT.  The CIA was relegated to a support role.

JSOC  is seldom mentioned in the press.  Its activities are secret.   It was formed in response to the failed mission to rescue Iran hostages during the Carter administration.  Its members were highly trained men recruited from Navy SEALS, Army Rangers, Delta Force and other elite groups from different branches of the military establishment.  They are a “private army” subject to the command of the President.  JSOC was used to engineer the killing of Che Guevera, illegally supply the Contras with arms and support, and engage in various other covert operations in Latin America.  It was perfect for Rumsfeld’s purposes.

The sidelining of the CIA resulted in a turf war and several times both CIA and FBI officials protested the way Cheney and Rumsfeld conducted their GWOT, especially their use of secret prisons where prisoners were subjected to “enhanced interrogation”.

     The Killing of Abu al Harithi and Kamal Derwish aka Ahmed Hijazi   

On November 3, 2002, a JSOC team located Abu al Harithi in Marib, Yemen.  He was one of the people responsible for the bombing of the USS Cole in 2000.  The information was sent to the CIA headquarters in Langly, Virginia and to a CIA command center in Djibouti.  An armed drone was launched.  It located Harithi in a car driving through Marib.  A five-foot-long Hellfire missile was fired at the car, hitting it and killing Harithi and Ahmed Hijazi, an American Citizen born in Buffalo, New York.  Before moving to Yemen, Hijazi had been an “unindicted conspirator” in the prosecution of the “Lackawanna Six”, a group of men charged with supporting al Qaeda.  He was neither tried nor convicted of any crime.

Before the strike, CIA Director George Tenet told Ali Abdullah Saleh, the President of Yemen, that the killing would be kept secret so that Saleh would not be embarrassed for allowing US military operations in his country.  Soon afterward, however, an unnamed US source claimed credit for the killing and that was reported in the American press.  Saleh was “highly pissed”.  He had released the “cover story” that he and Tenet had agreed on:  that the car hit a land mine.  Ultimately, he was mollified with generous infusions of money and arms that enabled him to hold on to his tenuous grasp of power.

This was the first killing of an American citizen not on a battlefield since Gerald Ford banned political assassinations in 1976.  Amnesty International and the ACLU denounced it and called on the US government to “bring to justice” those responsible.   This  was  ignored.  The President and members of Congress expressed satisfaction that “terrorists” had been killed.

This was only the beginning.  A command center was established on the USS Mount Whitney, a ship sailing in the Gulf of Aden and around the Horn of Africa.  During the ensuing months JSOC offensives in Somalia, Yemen, Kenya, Ethiopia, Eritrea and Djibouti were directed from it.

    Dumb Snipe Hunts

A snipe hunt is a mean trick typically played on a city kid by usually older kids raised in the country.  It is played at night.  The victim is told that he and the other kids are going on a snipe hunt.  He is told that a snipe is nocturnal animal who can be trapped in a gunny sack held open; that it is attracted by a light.  He is told that the small animal will not bite him and is good to eat.  He is then led into the woods, given a flashlight, told to hold open a gunny sack, to sit and wait for a snipe.  He is assured that the other  “hunters” will be at other locations similarly occupied.  After being left there for as long as the pranksters feel is sufficient, he is rescued and  teased about foolishly believing the phantom snipe story.  There are variations, but this is the core idea.

For several years, beginning in 2002, the President of the United States and his team of GWOT warriors and Iraq invaders engaged in not one, but two snipe  hunts:  The first was initiated by Rafid Ahmed  Alwan al Janabi, an engineering school dropout also known as Curveball, who told Bush’s eager listeners that he had personal knowledge that Saddam Hussein had “weapons of mass destruction”,  The second was  triggered by a Czech counterintelligence source who claimed that Mohamed Atta, one of the 9-11 hijackers, met in Prague in April, 2001, with Ahmad Samir al Ani, an Iraqi consulate.

Curveball proved to be a deranged con man who tried to score a green card from the willingly gullible Bush team by making up this story.  The Czech government, after an intelligent investigation, declared that there was no credible evidence to support the alleged Prague meeting.

Before these snipe hunts were exposed, Rumsfeld and his JSOC army imprisoned thousands of men and women and subjected them to horrific forms of torture in a doomed effort to extract from them information about the WMD’s and the al Qaeda connection with Saddam Hussein’s government.   Rumsfeld personally held weekly meetings to receive updates on the success of these efforts and sent memo after memo urging more and more severe methods to obtain the information he required.  He was like a hapless kid, crouching in the dark, waiting for a snipe that never came.  Disreputable lawyers like John Yoo were kept busy contriving new definitions of the word “torture” to protect Rumsfeld and his subordinates from criminal prosecution as war criminals.

[To be fair, it is true that Bill Cliinton and some members of both US and British intelligence forces began talking about Iraqi “weapons of mass destruction” before the advent of the Snipe Hunters.  The difference is that they did not launch a GWOT based on their suspicions.  And, most important, they listened to other, conflicting, opinions within the intelligence community.  When the USS Cole was attacked in October, 2000, President Clinton did not

“Cry ‘Havoc,’ and let slip the dogs of war;
That this foul deed shall smell above the earth
With carrion men, groaning for burial ”

That reaction awaited the Snipe Hunters.]

      The Dumb War Dictionary

In order to achieve their goals of unfettered power while avoiding criminal prosecution or impeachment, President Bush and his GWOT warriors had to re-define several words and phrases that affect the application of various US laws.  For example, American law distinguishes between “covert operations” and “clandestine operations”.  Covert operations are military incursions into other countries that are not only secret, but are also done in a way that the US Government can deny responsibility for them.  Covert operations require a presidential finding that must be shared with the House and Senate Intelligence Committees before the operation begins.  Those restrictions were imposed as a result of the Bay of Pigs fiasco and the Iran-Contra scandal.

Clandestine operations are secret military operations in foreign countries.  They do not require a presidential finding nor do they require the involvement of Congress.  Clandestine operations typically were used when invasions were planned.  In the language of the military “Standard Operating Procedure” they are referred to as “Preparing the Battlespace”.   For example, before D-day in WWII, clandestine operations were used to disrupt anticipated defensive actions by the German military.

Rumsfeld and his team viewed the entire ex-US world as a “battlespace” that could be “prepared” by JSOC operations.  He not only wanted to bypass Congressional oversight and the bother of a presidential finding, he also wanted the ability to launch these clandestine operations without wading through the Pentagon’s chain of command.  In other words, he wanted his own private army to send wherever he chose without having to account to anyone but himself and his hand-picked subordinates.   The fact that this had no resemblance to any reasonable interpretation of the terms and phrases upon which he was relying did not deter him.

He encountered opposition from Pentagon brass who rightly felt that they were being benched.  He also found himself in a running war with the FBI and the CIA who also felt that they were being relegated to supporting decisions and choices over which they had no control or influence.  Despite these problems, Rumsfeld, with the powerful backing of his friend and mentor Dick Chaney, had his way.  He became, in effect, a super general, able to invade, kill and destroy whoever and whatever he chose wherever he chose, so long as it was outside the United States.  He became the most powerful snipe hunter in the history of the world.

     Dumb War in Somalia:  A Debacle

Even before the GWOT began Somalia was a failed state:   a mostly rural territory larger than France with few resources, inhabited by desperately poor people surviving under the ad hoc rule of a network of war lords.  The CIA operated in Somalia through shifting alliances with some of the war lords.  Al Qaeda had a few agents there, but they were not a major force.  When the GWOT began in Somalia, the CIA used its client war lords as contractors, armed with US weapons, funded with US money and supported by US air power to stage raids in rural villages and kill suspected al Qaeda supporters and others who harbored or protected them.

Those raids were done with vicious brutality and the resulting resentment was focused on the American sponsors.  By 2004, news of the Iraq invasion and the abuses at Abu Graib convinced the Somali Muslim population that the US was waging war against Islam.  To halt, or at least moderate, the lawless chaos that prevailed, local Muslims organized a system of sharia courts to enforce order.  This system became known as Islamic Courts Union or ICU.

In a short time, the ICU grew strong enough to control a substantial part of Somalia and, at one point, controlled Mogadishu.  In response, JSOC and the CIA launched large scale bombing attacks on Somali villages where ICU was in control.  In addition, the US sponsored and supported an invasion of Somalia by Ethiopia, a neighboring country with which Somalia had gone to war in the 70’s and which had continued a hostile relationship since then, featuring periodic cross-border raids.

A full scale war ensued, with US air strikes supporting the invaders.  The ICU was finally vanquished, the war ended and the Ethiopian troops withdrew.

The Ethiopian invasion disrupted the ICU but  it also attracted large numbers of young men from other countries, who considered the conflict in Somalia to be an attack on Islam.  These men became easy recruits for al Qaeda and ultimately organized a new insurgency called al Shabab that became the most powerful and effective al Qaeda organization in East Africa.  In 2009, a report for the Senate Foreign Relations Committee concluded, “In many areas al-Shabab is the only organization that can provide basic social services, such as rudimentary health facilities, food distribution centers, and a basic justice system rooted in Islamic law.”

The influx of foreign fighters steadily increased and al Shabab gained control of more territory than any other al Qaeda group in history.  The dumb GWOT strategy, in a few years, had converted a failed state with little or no power to a territory similar to Afghanistan before 9-11, where al Qaeda could recruit and train its forces and expand its potential for harm to America.  In the process, it had furnished ready-made propaganda for al Qaeda to use throughout the world to encourage Muslims to hate America.

The Track and Whack War

     The Pirates’ Mistake

Three months after Barack Obama became the Commander-in-Chief, some Somali pirates made the mistake of waylaying and boarding an American ship off the Somali coast.  The crew resisted and one of the pirates was wounded.  Three of the pirates left the ship in a small boat, taking Captain Richard Phillips, an American, with them as a bargaining chip.  They headed for the Somali coast.  At Obama’s order, the USS Bainbridge was dispatched to the scene and arrived the next day.  On the third day, Captain Phillips tried to escape from the pirates, but was re-captured.  Two other US vessels joined the Bainbridge.  On the morning of the fourth day, Obama, after being advised that JSOC had a team of expert marksmen capable of dealing with the escaping pirates,  authorized the team to use lethal force to free the captain.  After the team was in place, Obama and some advisers questioned them about their ability to free Phillips.  “Would there be undue risk of harm to US troops?”  “Would there be collateral damage?”  “Do you have a clear shot?”  After receiving negative answers, Obama was asked, “Do I have permission to execute?”  Obama said “Yes you do.”  The voice at the other end of the line gave an order.  Then “Pop. Pop. Pop.”  Three pirates were dead and Captain Phillips was rescued.

Barack Obama had experienced the power of heading a powerful military force.  It undoubtedly impressed him with the efficiency and capability of a JSOC team.  Admiral William McRaven, the JSOC commander became a frequent White House visitor and established a close relationship with Obama.

     Obama’s GWOT  Army

Obama focused on killing Al Qeada and groups “associated” with Al Qaeda.  His primary weapon was JSOC, using intelligence supplied by the CIA.  His CIA Director, Leon Panetta, an old hand at handling political conflicts driven by outsized egos, effectively ended the turf wars between the FBI, the CIA and JSOC.  Obama soon had a smoothly working army which he began using to kill members and supporters of al Qaeda and “associated groups”, a shifting and imprecise designation of victims, the meaning of which changed in response to a constantly changing body of information.

Obama, in other words, while he ordered the ending of prisoner torture, continued, expanded and made more effective the “Global War on Terror” begun by the Bush neo-cons.  He used JSOC forces for raids on the ground, drones, missile armed helicopters and AC130 gunships for larger scale attacks.  [To appreciate the nature of the air attacks, do a Google search for “AC130”, look at some pictures and consider how those attacks were perceived by rural villagers in Yemen, Somalia, Kenya and other African countries.]

     Rendition and Interrogation

Ali Nabhan was one of the Al Qaeda leaders and planners of terrorist activities in East Africa.  He and Fazul Abdullah Mohammed were responsible for the bombing of US embassies in Kenya and Tanzania.  When Obama became President, both were still at large, regarded as HVT’s  (High Value Targets).  In July, 2009, Kenya security forces raided a home in Eastleigh, a slum district in Nairobi.  They arrested Ahmed Abdullah Hassan and took him to Somalia.   There, in the basement of Somalia’s National Security Agency,  he was interrogated by US Intelligence officials as well as by Somali interrogators.  He proved to have been a personal assistant to Nabhan and, in response to repeated interrogation by both US and Somali men, disclosed information that allowed a JSOC team, on September 14, 2009, to attack a convoy consisting of a Land Cruiser and several “technicals” (pickup trucks armed with machine guns).  All passengers in those vehicles were gunned down.  The American commandos landed and collected two of the bodies, one of whom was Saleh Ali Nabhan.

In April, 2009, CIA Director Panetta declared that the “CIA no longer operates detention facilities or black sites” and announced a “plan to decommission the remaining sites.”  Three months later, Hassan was interrogated by Americans in a secret prison basement.

     The Bombing of Majalah

On December 16, 2009, legal advisers from the State Department and the Pentagon and seventy-three other top national security officials were given a file of “baseball cards” containing the bios of three men in Yemen who were alleged to be leaders of AQAP (Al Qaeda in the Arabian Peninsula).  The JSOC commander, Admiral McRaven wanted immediate authority to kill all three.  The two legal advisers were given forty-five minutes to consider the request.  A teleconference was set up.  McRaven laid out the case for “kinetic action”, saying that one of the targets, Mohammed Saleh Mohammed Ali al Kazemi,  had been tracked to a training camp near the village of Majalah.   Capturing him had been ruled out and a JSOC cruise missile attack on the camp had been decided on.

The assembled group gave their permission for the strike.  A short time later, the Pentagon lawyer watched as a satellite beamed a real life image of Majaloah.  Figures moving around the village appeared to be the size of ants.  Then, in a massive flash, they were vaporized.  In the Pentagon, the satellite feed was known as “Kill TV”.

There was no training camp.  Scahill interviewed Bin Fareed, one of the most powerful citizens of Yemen, a leader of the Aulaq tribe and Anwar Awlaki’s uncle,  who visited the killing site the next day after the strike.  “When we went there, we could not believe our eyes.  I mean, if somebody had a weak heart, I think he would collapse.  You see goats and sheep all over, you see the heads of those who were killed here and there.  You see their bodies, you see children, I mean some of them, they were not hit immediately, but by the fire, they were burned, . . . .”  The man described efforts to bury the dead:  “Some of the meat we could not reach, even.  It was eaten by the birds.  They were all children, old women, all kinds of sheep and goats and cows. Unbelievable.”  “Why did they do this?  Why in the hell are they doing this?”  “There are no [weapons] stores, there is no field for training.  There is nobody, except a very poor tribe,one of the poorest tribes in the South.”

Scahill interviewed several survivors.  One of them was spared because he had gone on an errand to a neighboring village.  “People saw the smoke and felt the earth shake – they had never seen anything like it.  Most of the dead were women, children and the elderly.  Five pregnant women were killed.”

Scahill includes statements from other survivors, all similar descriptions of horror and slaughter.

      It Gets Worse

Abdulelah Haider Shaye was a journalist in Yemen who did not conform his reporting to the interests of either the Yemen government or the interests of the United States.  He was not allied with Al Qaeda and his stories were as critical of its activities and policies as those of the US and Yemen.  He was related by marriage to “. . a radical Islamic cleric,Abdul Majeed al Zindani, the founder of Iman University  and a US Treasury Department designated terrorist” [in Scahill’s words]  Because of this connection, Shaye was able to get information about Al Qaeda that probably would not have been otherwise available, but his stories were often critical of Zindani and were not subject to a charge of bias toward Al Qaeda.

Scahill wrote that Shaye “. . . had long been known as a brave, independent-minded journalist in Yemen. . ..”  He became a target for US retaliation when he began to write stories about Majalah.  Shaye went there and published pictures of pieces of cluster bombs and Tomahawk cruise missles with “Made in the United States” stamped on them.  Among the debris found and photographed by Shaye were pieces of BLU 97 A/B cluster bomblets described by Scahill as “[bombs] which explode into some two hundred sharp steel fragments that can spray more than four hundred feet away.  In essence, they are flying land mines capable of shredding human bodies.  The bomblets were also equipped with an incendiary material, burning zirconium, that set fire to flammable objects in the target area.  The missile used in the attack [on Majalah], a BGM-109D Tomahawk, can carry more than 160 cluster bombs.”

All of this information was spread around the world, on Al Jazeera as well as other news media.  It made obvious that the claim made after the strike:  That it was done by the Yemen government, was not true.  The Yemen government did not have the kind of missiles used.

Bin Fareed reacted to the Majalah bombing by organizing a massive meeting of almost 150 of Yemen’s tribal leaders.  Old feuds and inter-tribal hatred were put aside and a crowd estimated as between 50,000 and 70,000 tribesmen assembled at Majalah in cars, according  to Fareed, “as far as the eye could see.”  A huge tent was erected and plans were made for speeches expressing outrage toward the US and the Yemen government for the attack.

The night before the speeches were scheduled, a small group of strangers came to the tent.  They identified themselves as Al Qaeda agents and asked for permission to address the crowd.  Bin Fareed refused and told them they were “idiots” who would divert attention from the purpose of his organizing:  to oppose the lawless violence, not align with Al Qaeda’s equally violent policies.  The Al Qaeda men left but, the next morning one of them, standing atop a car, spoke to the crowd and identified himself with Al Qaeda.  His speech was televised and, despite Fareed’s effort, his rally was hijacked and branded as an Al Qaeda event.  He told  Scahill, with satisfaction that,  a few days later, all of the Al Qaeda agents were killed, probably because the US was able to track them based on their appearance at the rally.

Abdulelah Haider Shaye persisted in his investigative reporting of the Majalah attack.  He worked with Al Jazeera, ABC News and the Washington Post to expose the false tales offered by the Yemen and US governments, claiming that the attack was by Yemen military forces and that it destroyed an important Al Qeada training camp.  His reports also exposed the way Saleh, the Yemen president, used the Al Qeada threat to pry money and weapons from the US.

In July, 2010, seven months after the Majalah strike, Shaye was grabbed off the street by Yemeni intelligence agents, taken to a secret location and told that to stop criticizing the Yemen government.  They told him, “We will destroy your life if you keep on talking.”  His lawyer told Scahill he was convinced the kidnapping was done at the behest of the US government.

Shaye responded to the threats by going directly to Al Jazeera after being released to describe the event in a live telecast.  Saleh had set up a special court to prosecute journalists who were critical of him.   The head of a committee to protect journalists in the Middle East and North Africa happened to be in Yemen that night.  He interviewed Shaye and found him to be a competent and courageous reporter.

About that same time, major news media outlets in the US were being told by US intelligence officials to stop working with Shaye, that he was using the money they paid him to support Al Qaeda.  Scahill interviewed both Shaye and his friend Sharaf, a cartoonist who incurred the wrath of the Yemen government by publishing unflattering cartoons of Saleh.  He was convinced that neither of them were Al Qaeda agents.

On August 16, 2010, the end of Ramadan, Sharaf’s home was surrounded by armed soldiers.  He and Shaye were taken to jail, beaten and tortured for about thirty days.  Sharaf was released in exchange of his promise to stop drawing cartoons of Saleh.  Shaye refused to make any promises, so he was charged with a long list of crimes and, a month later, brought to trial in a cage located in the courtroom.   After the charges, accusing him of being an Al Qaeda agent among other crimes, were read aloud, he made a short speech to his fellow journalists, declaring that he was being persecuted for no reason except his exposure of the violent attacks on innocent citizens.  He said, “You notice in court how they have turned all my journalistic contributions into accusations.”  As security guards dragged him away, he yelled, “Yemen, this is a place where, when a young journalist becomes successful, he is viewed with suspicion.”   He was sentenced to five years in prison.

Human rights groups and reporters who attended the trial, denounced Shaye’s treatment and branded the trial “a joke”.  Gregory Johnson, the Yemen scholar at Princeton University, who had maintained steady communication with Shaye for years, told Scahill, “It is difficult to overestimate the importance of his work.  Without Shaye’s reports and interviews we would know much less about Al Qaeda in the Arabian Peninsula that we do, and if one believes, as I do, that knowledge of the enemy is important to constructing a strategy to defeat them, then his arrest and continued detention has left a hole in our knowledge that has yet to be filled.”

A group of tribal leaders and some prominent Yemen sheikhs met with Saleh and urged him to release Shaye.  Saleh agreed.  A pardon was printed and Shaye was about to be released when Saleh received a call from President Obama.  Obama “expressed concern”  that Shaye was to be released before serving his sentence.  After the call, Saleh tore up the pardon and Shaye remains in prison.

     Horror at Gardez

Mohammed Daoud Sharabuddin was a policeman who headed the intelligence department in Paktia Province, Afghanistan.  He lived near Gardez, a town in that province.  On February 12, 2010, he, his family and some friends were celebrating the naming of his son, a ritual that occurs six days after birth.

About 3 a.m., the party was winding down when someone noticed that an outside light was not on.   One of the musicians saw lasers from the perimeter of the compound focused on the grounds.   He ran back inside and told Daoud that the Taliban  was attacking.  He said they were already on the roof.

Daoud and his fifteen-year-old son went outside and were killed by sniper fire.  The family inside began hearing the attackers speaking English and realized they were Americans.  Daoud’s brother tried to stop the attack.  He went outside and shouted, “We work for the government.  Look at our police vehicles.   You have wounded a police commander.”  Three women, family members ages thirty-seven, twenty-two and eighteen, tried to get him back inside.  All four were killed.  Seven people died.  The dead women were survived by sixteen children.

One of the survivors, Mohammed Sabir, one of Daoud’s brothers, saw his brother, his niTece and his sister-in-law killed.  At 7 a..m. stunned by the violence, he stood in a room filled with American soldiers while others searched the home.  His request to take the wounded to the hospital was ignored.  The soldiers told him they would care for them.   Finally, a helicopter came but, by that time, the wounded family members were dead.

Afghans customarily bind the heads and feet of the dead.  A scarf is put around the bottom of the chin to keep the mouth  from being open.   The survivors began trying to do this, but the soldiers handcuffed them and put the men and the women in separate rooms.  Scahill interviewed the survivors.  Several of the men told him that, after being handcuffed, they saw American soldiers using knives to dig bullets out of the corpses of the womens’ bodies.  When Scahill asked one of the men to confirm this, the man said, “Yes.”   “They were taking bullets from their bodies to remove the proof of their crime.”

Some of the male members of the family were taken into custody and interrogated for three days and nights.  They were still wearing clothes bloody from the killings.  They were accused of being Taliban members, although they told their interrogators that they had actually fought against the Taliban.

United Nations investigators issued a report that was never released.  It said that the Daoud family was subjected to cruel, inhuman and degrading treatment; that medical treatment was wrongfully delayed; that the survivors were made to stand outside in the cold for long periods of time.

The International Security Assistance Force issued a press release claiming that, while engaged in a routine operation, an ISAF team had made a “gruesome discovery”.   After being caught in a a “firefight” at the compound, they went inside and found three women who had been “bound” and “gagged” and then executed.  The ISAF team found them in an adjacent room”.   The release stated that eight men had been held for “further questioning”.   The press release stated, “ISAF continually works with our Afghan partners to fight criminals.”

The New York Times published the ISAF account.  A Times reporter, Rob Norland, spoke to the local police chief, who confirmed many of the details of the incident.  He stated that three women had been killed by Taliban militants and appeared to have deep cuts and puncture wounds, suggesting they had been stabbed.

A month after the attack, a British journalist, Jerome Starkey, began a serious investigation of the Gardez attack.  After interviewing witnesses and viewing other evidence, he concluded that it was a tragedy followed by a cover-up.  One of the most telling items was a video of the party, showing musicians playing and people dancing.  The  Taliban is notorious for banning musical instruments.  Starkey realized that the whole Taliban story was a lie.    When he interviewed the governor of the province where the attack occurred, he was told, “The operation was a mistake.”

The ISAF continued to insist on their bogus version but, when the Times of London published a long story written by Starkey, the cover-up began to unravel.  At first, ISAF pressured other journalists to attack Starkey’s credibility.  Then NATO claimed to have a tape recording in which Starkey made statements inconsistent with his story.  When he demanded access to the tape, NATO spokesmen admitted it did not exist.

Starkey published a follow-up story describing the grief and outrage of the Afghans about the Gardez attack.

In late March, 2010, Starkey got a phone call from NATO.  The caller told him that they were issuing a new press release changing their account of the attack.  The new version admitted that the Daoud family was not allied with the Taliban, that, while the men “showed hostile intent”, they did not fire on the ISAF forces; that the women were not “bound and gagged” as originally claimed.  NATO still denied that bullets had been dug out of the women’s bodies.  A later investigation by Afghan investigators confirmed that the bullets had, indeed, been removed by the soldiers.  Starkey published another story based on that investigation.

On April 8, 2010, a huge convoy of American armored cars and land cruisers, loaded with a large number of Afghan and American soldiers arrived at the Daoud compound.  Admiral McRaven stepped out of one of them.  A sheep was unloaded from one of the vehicles and three Afghan soldiers knelt by it in the courtyard of the compound.  Afghan law includes a doctrine named nanawate that requires that when a wrongdoer comes to ones home to ask forgiveness, he slaughters a sheep at the front door and the victim is bound to accept him and his apology.  As an Afghan mullah prayed, the soldiers prepared to kill the sheep.  Hajji Sharabuddin, the family elder, stopped them.  He recognized that honor required him to let the visitors into his home.  He insisted, over McRaven’s objections, that Starkey remain in the room.  His photographer took pictures of the event.  McRaven made a short speech.  He apologized and asked for “mercy” for him and his men for “this awful tragedy”.  The Afghan generals handed the family $30,000.

When Scahill spoke with Sharabuddin months later, he said he did not accept the apology.  He said, “Initially, we were thinking that Americans were the friends of Afghans, but now we think that Americans themselves are terrorists.  Americans ar our enemy.  They bring terror and destruction.  Americans not only destroyed my house, they destroyed my family.  The Americans unleashed  the Special Forces on us.  These Special Forces with the long beards, did cruel, criminal things.”

Scahill made FOIA requests for documents pertinent to the bullet removal issue.  His requests were denied.

     The Anwar Awlaki Story

A major part of Scahill’s book concerns the killing of Anwar Awlaki and his sixteen-year-old son.  I have written about this elsewhere so I won’t repeat it here.  [See “Lynch Law” and “Lynch Lay Two”]  Scahill’s book does, however, include one charming detail of which I was not aware.

The CIA accepted the assistance of a Danish citizen, Morton Storm, a lapsed Muslim who volunteered to become a double agent.  Storm is  a former biker gang member who became a devout Muslim and then, after a sudden epiphany, became an eager anti-Muslim.  During his devout Muslim stage, he was a fan of Alwar Awlaki’s YouTube Muslim ministry and established a friendly relationship with him via email.

Awlaki told Storm that, because he was in  exile to escape US surveillance and living away from his family, he pined for another wife who would accompany him on his frequent travels.  Storm agreed to look around for one.  He then went to a local office of the CIA and volunteered his services.

With the help of the CIA, Storm found a Croatian woman who was also a fan of Awlaki and was eager to become his wife.  A video was produced featuring her, expressing her admiration for Awlaki , proposing herself as his future wife.  He responded favorably and their wedding was arranged.

Since Awlaki had made plain the fact that their marriage would involve a lot of travel, the CIA provided her with a suitcase for her wardrobe  and equipped it, without her knowledge, of course, with a homing device that would be trackable.

She met and married Awlaki and Storm was paid $250,000 by the CIA for acting as the matchmaker.

Following their marriage, Awlaki transferred her clothes from the suitcase to a plastic bag, abandoned the suitcase and the CIA plan to blow up the bride and groom as well as anyone else who happened to be in the vicinity was thwarted.

Last Sunday night, 60 Minutes included a segment in which Storm,  who has produced a self-laudatory book, complained bitterly because, according to him, he was responsible for killing Awlaki and was denied the large reward that had been promised.  The CIA claimed that his information was not vital to locating and killing Awlaki, so they refused to pay him.  Perhaps they considered a quarter of a million dollars for a plot that did not succeed was enough.

     Signature Strikes 

Three days after becoming President, Obama signed executive orders “dismantling” the Bush torture and detention programs.  He declared that we would wage war against “violence and terrorism”,but would do so in a manner consistent with “our values and our ideals”.  The next day, CIA Director Michael Hayden told the President about drone strikes planned in Pakistan near the Afghan border.  Hayden described them as targeting “upper tier” Al Qaeda and Taliban” members.

On January 23, 2009, two Hellfire missiles hit two compounds in two small villages.  Hayden reported that the “upper tier” agents had not been hit, but that “at least five Al Qaeda militants” had been killed.  Obama replied, “Good.”

The next day, John Brennan, his chief anti-terrorism adviser, told the President that most of those killed were innocent civilians.  One strike killed between seven and fifteen people, almost all civilians.  The second strike hit the wrong house and  killed between five to eight civilians, some of whom were family members of the tribal elder, who was a member of a “pro-government peace committee”.

Obama summoned Hayden for a meeting.  Hayden explained that the targets were based on “signature” findings, based on “life patterns” rather than actual intelligence specifically identifying them as Al Qaeda or Taliban leaders or members.  The CIA had reported that they were “military age males” who were part of a large gathering in a region known to contain Al Qaeda or Taliban agents or were known to have had contacts with suspected militants.  After hearing the explanation, Obama agreed that strikes could be based on such evidence, but required that the CIA Director was to have the “final say” on them.

These meetings were followed by other meetings with members of the intelligence community and Obama was made aware of the way the drone program was structured.  During the next ten months, Obama authorized as many drone strikes as Bush had in the eight years of his presidency.

As I read descriptions of these “signature” strikes, something seemed familiar about them.   One night, while half asleep, it came to me.  This was the way the McCarthy and J. Edgar Hoover waged the war on communism in the United States in the 50’s and 60’s.  People were singled out based on their associations with others suspected of being communists.   If they attended meetings where ideas consistent with communism were discussed, they were targeted.  If they publicly opposed the methods of the anti-communists, they were targeted.

They weren’t killed, just jailed, ruined and black-listed.  But the method was the same.  We  weren’t at war with the USSR or with any communist country.   We had a war going on against an  loosely defined ideology named by those waging the war as “communism”.   Part of its appeal was based on fear.  In those days the fear was focused on being incinerated by an atomic bomb.  The GWOT war, also focused on an ideology, is based fear of another terror attack.

Those claimed to be communists, like those claimed to be agents of Al Qaeda or the Taliban, were not formally inducted into an organization.   Their names did not appear in official membership roles.  Their supposed adherence and approval of every objectionable idea of an ideology was presumed based on their “life pattern”.

This “life pattern” strategy used as a basis for drone strikes and lethal force should be familiar to us all.  The pity is that, when it is given a new name, we don’t recognize it.  Mayor Bloomberg’s “stop and frisk” program in New York, now the subject of conflict and public discussion, is another iteration of it.  It also bears a resemblance to the “articulable suspicion” used to justify the NSA’s surveillance programs’ focus on specific persons or groups.

It seems to me that the GWOT is being fought on bases similar to the old McCarthy/Hoover/ John Birch wars on communism and the other just cited examples,  except that Hellfire missiles and 500 pound bombs are more serious weapons than Congressional hearings and blacklists; Bloomberg’s police harassment; and NSA’s snooping.

Conclusion

I know this essay is too long.  I have touched on about ten percent of the material in Scahill’s book.  The examples I have discussed can give only a hint of the descriptions of mayhem and violence he describes, along with detailed accounts of the secrecy and deceit that characterize the efforts to conceal it.  It is not a  pleasant book but it reminds me of the importance of the First Amendment’s important protection of journalists like Jeremy Scahill, Jerome Starkey and Abdulelah Haider Shaye.

Bob

Secret Decisions of Secret Courts: Anathema to American Justice

July 7, 2013 § 4 Comments

A front page story in today’s New York Times describes how the FISA Court is creating a secret body of law that affects the life of every person who has lived in the United States during the past six years and millions of others who live in other countries.  Here is a link to that important story::

Secret

I believe this story describes an issue  far more important to the future of our country than the government mendacity exposed by the Pentagon Papers.  To appreciate how fundamentally this threatens a vital principle of our legal system, it is necessary to consider its implications.

First, we claim that our government’s legitimacy is based on our consent, the “consent of the governed”.

Second, our Constitution provides that law making is reserved to the Congress.

Third, our legal system is based on two kinds of law:  statutory law, including constitutional law, and common law.  Common law is a system of law we brought with us from Britain.  It is based on the accretion of precedents consisting of decisions of previous courts.  The doctrine according to which it develops is stare decisis, which is Latin for “to stand by things decided”.  The principle involved is that the law should be applied alike to similar issues; that its interpretation should not depend upon the identity of the litigants.  This enables people to predict, with a reasonable degree of confidence, what the decision of a court will be, given a particular set of facts.  It insures that justice for one will be justice for all.

Fourth, we, the people, choose those to whom we entrust the power to make laws that affect us.  We make those choices through democratic elections.  To make those choices intelligently, we need and are entitled to pertinent information, so that, if the lawmakers we chose do not exercise their authority to make laws that please us, we can fire them and hire replacements.

I apologize for repeating these elementary principles.  I know they are taught, or should be taught in  public schools.  I do not intend to condescend to my readers but, given the nature of the recent discussion of the FISA court and the N.S.A. surveillance it  has been authorizing, I have some doubt that the commentators are paying appropriate attention to these fundamentals of our government and our political system.

We now know that the FISA court, eleven judges appointed by Chief Justice Roberts, ten of whom are appointees of Republican Presidents, has, in a series of hundreds of decisions, each one building on its predecessors according to the doctrine of stare decisis, erected a legal structure that approved the gathering by our government of a  trove of data containing every tiny detail of every move, choice, purchase, communication, financial transaction, preference and relationship of every person in the United States and, as stated, uncounted millions in other countries.  That data, in turn, has been opened for analysis according to rules and choices made by government officials and private contractors’ employees, supervised by secret decisions made by the FISA court.

Without knowing what, if any, polling has been done following these disclosures, I feel absolutely safe in assuming that most people, here and abroad, were astonished when they discovered that such intimate details of their lives were recorded in searchable databases owned by the United States government.  That astonishment means that the above-stated system of government has not been operational concerning this matter.

It is true that, theoretically, the members of Congress have been able to find out about these developments.  It is also true that “theoretically” is the operative word in that sentence.  It is obvious that a majority of the members of the House and Senate did not take the trouble to find out the details of FISA’s proceedings and decisions.  It is also true that, when a Senator, e.g. Senators Wyden and Markey, tried to find out some of the details, N.S.A. declined to answer their questions.

Because of this lack of public knowledge, the Fourth principle stated above, did not work.  We, the people, did not express our opinions about what N.S.A. was doing or how the FISA court was interpreting the laws our elected representatives enacted because N.S.A and the FISA court kept what they were doing a secret.  In other words, democratic government was sidelined behind a wall of classified insulation.

I am outraged about this and I think others should be also.   If we no longer believe that we can bear the risks of living in a free country, we should stop pretending otherwise.

I am afraid my fellow countrymen are in danger of falling into a trap that government always uses to lull guileless people to sleep:  “If you haven’t anything to hide, you need not worry about our right to pry into your personal life.”  I wish the FISA court would decide that personal diaries might offer “foreign intelligence” and order all diaries submitted for copying by a government agency.  Maybe then, people would wake up and realize that, regardless of whether they “have anything to hide”, they don’t like the government intruding into their private lives.  Of course I”m dating myself with that fantasy.  No one keeps a diary anymore.  They post everything on Facebook or Twitter or some other public forum.

The insidious and sinister nature of the N.S.A. surveillance program is that it enables the government computers to fish for “patterns” that are then interpreted to mean various things about the person whose data is analyzed.  When we go about our daily lives, we do not consider how our choices made over a period of years can be filtered and sorted to appear dangerous or scandalous or embarrassing.  When all the data is available, “connecting the dots” depends on the biases and motives of the connector, not necessarily those of the connectee.

There is a good movie that perfectly illustrates the concerns I am trying to express here.  “Lives of Others” is a 2006 movie about the Stasi, East Germany’s intelligence police and their obsessive accumulation of information about East German citizens.  I don’t know where or if it is still available.  I assume it is probably on sale at Amazon.  If it becomes available on some TV channel to which you subscribe, check it out. Like “1984” and “Brave New World”, it expresses dramatically what I’m trying to express here.

I have no reason to believe that the present government has malevolent intentions concerning the use of the data that has been accumulated.  I do not know, however, about the intentions of those who may have access that data in the future.  It is a “weapon of mass  destruction” whose ownership and control  should not depend on the outcome of future elections.

James Mason, a legal scholar and one of our founding fathers, once wrote, “Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.”

Our Choice

June 16, 2013 § Leave a comment

Summary

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.

Summary

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.

The Solution

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.

Bob

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