Tom Hayden : Secrecy Protests Split American Elites

Image from ElectronicFrontierFoundation / Flickr.

Protests against secrecy
drive elites into debate

A virtual empire composed of distant and interconnected private and public elites contradicts representative democracy as virtually all Americans understand it.

By Tom Hayden / The Rag Blog / July 29, 2013

Concerned citizens need to crack open the covers of C. Wright Mills' The Power Elite [1956] as the curtains are being ripped back from the new Surveillance State by whistleblowers, investigative reporters, and civil liberties lawyers.

Mills' classic book needs revision in light of the expanded use of technology but his survey of power is unrivaled to this day.

According to Mills' detailed research, the power elite was composed of the military and corporate hierarchies in combination with the executive branch of the state. Congress, he concluded, was relegated to the "middle levels" of power, except for the cooptation of the top leadership of both parties when needed to ratify executive decisions.

We saw this revealed in the extraordinary approval of the Wall Street bailout in 2008. We have seen the role of the elite on the Libya war, the cyber-attacks on Iran, the Long War's counterterrorism policy, and the implementation of the 2001 Authorization of the Use of Military Force [AUMF].

It has been revealed that a secret and virtually parallel constitution has been written by the FISA Court in order to "legalize" this expanding power of the elite to obtain Big Data on the lives of ordinary citizens. The result, according to the New York Times' Eric Lichtblau is "almost a parallel supreme court." [NYT, July 6].

It is further revealed that the secret surveillance court known as FISA has been shaped by right-wing U.S. Supreme Court Justice John Roberts. The FISA appointees therefore are "more likely to defer to government arguments that domestic spying programs are necessary." [Charles Savage, NYT, July 26]

In terms of the global economy, the secret negotiations of pro-corporate "trade" agreements with Europe and the Pacific Rim would complete the design of "the new world order" established largely beyond the reach of local, state, and congressional officials, not to mention unions and human rights groups [except for official "democracy promotion" programs aimed at Cuba, Venezuela, etc.].

A virtual empire composed of distant and interconnected private and public elites contradicts representative democracy as virtually all Americans understand it. Participatory democracy, as envisioned by John Dewey, Mills and the 1962 Port Huron Statement of SDS is contained, suppressed or, as during the 60s movements and today's Occupy struggle, appears occasionally as an oppositional uprising on the streets, the Internet, or the defiant actions of whistleblowers.

Thankfully, participatory democracy, even while sidelined, prevents total control by the power elite and at times causes contagious chain reactions. The state is the Titanic, public opposition the iceberg.

Opposition has been rising from the margins. Only 28 percent of Americans think Afghanistan is a war worth fighting, a percentage that likely will continue to drop, in nothing less than a public withdrawal from the official agenda. Nor is there popular support for U.S. intervention in Egypt or going to war with Iran. Popular opposition to the drone war is on the rise too.

The more the public learns about Big Brother obtaining Big Data, the more the public is troubled. What Mills called civil society, and which he hoped would become a live "democracy of publics," continues to boil up like a populist geyser.

But this opposition can only rise and flame out, unless the big institutions -- the Congress, courts, mainstream journalism -- are moved and divided in response to the simmerings. One of Mills' blind spots, since he wrote in the mid-50s, was the role that a "new Left" might play in challenging those institutions, since the Left in the 50s had been crushed by McCarthyism at home and Khrushev's revelations about the Soviet Union's internal repression.

At the first stirrings of protest by what Mills called "the young intelligencia" -- the Cuban revolution, the Aldermaston anti-nuclear marches, the black student sit-in movement -- Mills dashed off an enthusiastic "Letter to the New Left"... Then he died of a heart attack in 1962, one month before the Port Huron conference.

What we discovered in the Sixties, and what remains true today, is that effective grassroots protest can influence the institutions of power where those institutions depend on public support or consent. Differences between the "inside" and "outside" tend to blur when the outsiders become strong enough and enough insiders accept the need for reform.

This is what accounts for the remarkable 205-217 protest vote in the Republican-controlled House this week against the National Security Agency's secret collection of private phone call data. The battle was between the bipartisan Congressional establishment, backing the Obama/NSA program, and dissident House members from the libertarian Right and the civil liberties Liberals. The same fight may continue on the Senate floor if Democratic Sen. Ron Wyden teams up with Tea Party Sen. Rand Paul.

In part the drama was simply staged. Republican leader John Boehner surely could have rounded up the few votes needed to spike the NSA program. An identical scenario played out during the House debate on the Libyan war in 2011, when a near-majority voted to impose the War Powers Act against the will of the national security elite.

In both cases, the House establishment led by Boehner had no choice but to let their dissident members vent, in response to their district's public opinion, before blowing the whistle and herding most of them them back to business as usual.

While the drama last week illustrated Mills' thesis that the Congress has declined to a "middle level" of power, it also was a sign of how suspicion and critical public opinion can make it difficult for the power elite to secure its position.

When a constitutional crisis in the Sixties divided the executive and legislative branches, conservative intellectuals like Harvard's Samuel Huntington were condemning the "excess of democracy." Not long after, Lewis Powell wrote his famous memo outlining a secret strategy to reestablish corporate power over the state in the face of popular movement.

Here is a brief list of what had happened as a result of those "democratic excesses" (read: social movements taking matters into our own hands):

• The U.S. was defeated embarrassingly in the Indochina wars;
• Richard Nixon was driven from office for unconstitutional schemes to shut down whistleblowers [Ellsberg-Russo], jail anti-war and anti-racism "conspirators" (Chicago Eight, Harrisburg and Gainesville anti-war trials, Black Panther trials in New York and New Haven, etc.).
• Most important for today's crisis, the Congress passed the War Powers Resolution to rein in the imperial presidency, and held extensive hearings on domestic spying and counterintelligence operations by the CIA and FBI.

As a result of those protests and hearings led by Sen. Frank Church, in which the NSA's spying on 75,000 Americans was revealed, the present Foreign Intelligence Surveillance Act [FISA] was written and the Congressional intelligence committees were created. As "reforms."

After a significant run of some 40 years, in which vast conservative countermovements arose to block the progress of the Sixties (leading to the Reagan, Nixon, and Bush-Cheney eras), those 1975 reforms have run their course and need to be sent back to Congress for repairs.

Already the Congressional leadership is scheming quietly to placate the current opposition with reformist tinkering. Superficial reform, however, is unlikely to placate an opposition which now stretches from Congress to The New York Times and FOX News to the passionate supporters of Pfc. Bradley Manning.

While most of the public holds a Washington-centric picture of the unfolding conflict, it is important to realize that the underlying cause of the rift has been the skeptical resistance of many Americans, whether expressed in public opinion surveys or persistent grassroots protest.

If one looks at the electoral map, the chief Congressional opponents of the new surveillance state are from either progressive constituencies (Senators Wyden and Merkley from Oregon, Udall from Colorado, Conyers from Michigan, Nadler from Brooklyn, Sanders and Welch from Vermont, or from libertarian Tea Party enclaves where the John Birch Society once considered Dwight Eisenhower a communist and today believe that Obama is far worse).

Mills was prescient on one further point: that the power elite would attempt to globalize. Even at the height of the Cold War, Mills predicted a bureaucratic "convergence" between the two superpowers resulting in a bipolar dominance over other nations or blocs. The policy result of this convergence would become known as "detente," and was opposedby the Non-Aligned bloc of the Third World.

Detente eventually collapsed under pressure from those on the Right who demanded "rollback." But the "convergence" agenda may be reappearing between Obama's America and Putin's Russia, as illustrated in the quandary over the status of Edward Snowden.

Obama is threatening to derail the planned September summit with the Russians if Snowden is given protection in Moscow. Putin, angered by the U.S. role in Syria and Iran, is moving towards rapprochement with China but is clearly uncomfortable with giving protection to Snowden if it means a crisis with the US.

By contrast, at least three countries in the Third World -- Venezuela, Nicaragua, and Bolivia -- are offering refuge to Snowden despite threats from the State Department, and Ecuador already is protecting Julian Assange in its London consulate.

Since Obama is unlikely to back down, the question is whether Putin will embrace Snowden instead of additional "convergence" with the U.S. To Putin's left are Russians who want him to stand up for Russian sovereignty. And to Obama's right, of course, the entire Republican Party opposes "convergence"with Moscow and is hoping to undermine Obama's proposed nuclear arms agreement.

It's complicated. But the best map of power relations remains the one charted by Mills in 1956. The power elite can be divided in its quest for a new world order. Social and revolutionary movements contribute to causing those divisions. Unity between the outside movements and the more moderate elements of the elite can lead to significant shifts of power and policy, at least for a time.

One presidential election or one Supreme Court appointment can make a critical difference. So can contradictory populist movements of the Right and Left, when and if they unite. The revolts initiated by either anarchists and libertarians, or both, lead to crisis and reform, sometimes to the disappointment of the original catalysts. We are in such a time.

[Tom Hayden is a former California state senator and leader of Sixties peace, justice, and environmental movements. He currently teaches at Pitzer College in Los Angeles. His latest book is The Long Sixties. Hayden is director of the Peace and Justice Resource center and editor of The Peace Exchange Bulletin. Read more of Tom Hayden's writing on The Rag Blog.]

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Tom Hayden : Is Obama Really in Control?

This plane carrying Bolivian President Evo Morales was forced to land in Vienna despite Obama's earlier comment that he "wouldn't scramble jets against a 29 year old hacker." Photo by Andres Gutierrez / AP.

Refs being 'worked'?
Does Obama control the State?

The executive branch has aided in the unaccountable growth of a Frankenstein-like Leviathan which now is beyond the control of its own makers, operating outside the levers of democratic oversight and control

By Tom Hayden / The Rag Blog / July 18, 2013

It seemed weird, off-handed, President Obama's comment that he "wouldn't scramble jets against a 29 year old hacker," just two days before the U.S. forced down a Bolivian plane carrying Evo Morales on the suspicion that Edward Snowden was smuggled aboard. Diplomatic hell broke loose, with Brazil, Venezuela, Nicaragua, Ecuador, and others all accusing the U.S. of violating their sovereignty.

With all the talk of Big Data, it's hard to believe that Snowden couldn't be detected enroute from the Moscow transit lounge to the departure gate for a Bolivian airliner. That aside, one wonders what if any was the connection between Obama's remark and the forcedown which subsequently happened.

Obama presumably was trying to squelch rumblings coming from within the national security state. After all, if some of the U.S. hardliners want Julian Assange, Snowden, and their ilk executed, or tried for treason before being executed, the same types might contemplate a Special Operation to render Snowden off a foreign airliner.

As for Evo Morales, I was told by a U.S. ambassador during the Clinton administration that he was a "very bad guy" who had tried to kill American diplomats, a good example of our intelligence demented..

The problem revealed by the incident is not a new one, and not for this president alone. Can we be confident that the president controls the permanent executive branch, especially the "intelligence" apparatus? Or is it not possible that key elements of the apparatus have been fabricating intelligence, pulling strings, "working the refs," boxing in the White House, asking forgiveness rather than permission, whatever one calls it, and running a foreign policy of their own?

If anyone is shocked by this, it's all happened before. Several presidents were threatened with blackmail by FBI director J. Edgar Hoover who ran what one U.S. senator called a "Gestapo-operation." John and Robert Kennedy had to go around their own generals and conspire with the Soviets to cool down the Cuban missile crisis when it was at the brink.

JFK circumvented the generals and CIA by fudging an agreement in Laos. Richard Nixon and the China Lobby foiled Lyndon Johnson's election-year plan for peace talks by getting the Saigon generals to hold out until after the election. Jimmy Carter was forced to keep diplomacy with Cuba secret from his own State Department negotiators in the late Seventies. Bob Woodward's Obama's Wars documents how generals Petraeus and McChrystal tried to trap the president into a "forever war."

And before all of them, President Eisenhower warned that, "In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist." [1961]

And now this: starting with the Bush era, the top-secret Foreign Intelligence Surveillance Court [FISA] has morphed into a de facto parallel Supreme Court writing and implementing a virtual constitution for the War on Terrorism era. This secret court, appointed in its entirety by the right-wing Supreme Court Justice John Roberts, has approved 1,800 surveillance orders during the past year alone, while rejecting none.

There is no adversary proceeding in this new equivalent of a Star Chamber. There are virtually no public findings. The FISA court has ruled, in secret proceedings, that the vacuuming up of "meta data" on many millions of citizens is a "special needs" exception to the Fourth Amendment ban on state searches and seizures without a warrant.

Some of the secret court's opinions are said to be nearly 100 pages in length, issued without adversarial proceedings and virtually beyond appeal. Just because Obama is a constitutional lawyer doesn't mean that he's devoted detailed attention to this runaway construction of a new constitution -- until something like the Snowden revelations force his attention.

"It has quietly become almost a parallel Supreme Court," according to Eric Lichtblau in The New York Times [July 7], providing a veritable new constitutional framework for every agency engaged in activities under the umbrella of "national security." A similar extra-constitutional project has been underway for decades to rewrite the rules of private marketplace governance in the era of corporate globalization.

Both thrusts, toward privatization and intelligence wars, represent a gradual movement towards a new legal framework for Empire which minimizes or circumvents democratic processes. The NSA plus the WTO are the "new world order" that George Bush I mused about.

Obama, who is responsible for this mushroom cloud of secrecy, seems occasionally to cry for help at his recognition that it's spiralling out of control. Since 2012, Obama has officially "welcomed" public conversation, debate, and Congressional drafting of a "new legal architecture" in order to "rein in" his growing imperial presidency and those which are likely to follow.

His inability to implement meaningful change, however, is a remarkable illustration of the limits of the presidency. There is no sign either of Congressional willingness to re-draft the 1973 War Powers Act to cover drones, secret wars like Libya, or the growth of executive-branch cyberwar. The federal courts are complicit in the private rewriting of the Fourth Amendment and the democratic guarantees of the Constitution.

It is not only the shadow of secrecy over democracy, but the apparent grip of secret forces in the executive branch over public policy. Last week the U.S. supported a military coup in Egypt in express violation of Congressional funding restrictions, and without public hearings. Last month, the President reiterated his five-year old pledge to close Guantanamo, get detainees off life-threatening hunger strikes, and repatriate many who already are cleared for release.

As of now, those straightforward orders have not been carried out. Someone is blocking them.

A secret coup hasn't fully happened yet, and may not, given the nature of American pluralism. But the executive branch has aided in the unaccountable growth of a Frankenstein-like Leviathan which now is beyond the control of its own makers, operating outside the levers of democratic oversight and control.

Obama's occasional comments welcoming a "conversation" may be seen as muted alarms. If he cannot "rein in" the new Imperial Presidency, a populist protest could be slowly building toward either an insurgency presidential campaign, an uprising, or both.

[Tom Hayden is a former California state senator and leader of Sixties peace, justice, and environmental movements. He currently teaches at Pitzer College in Los Angeles. His latest book is The Long Sixties. Hayden is director of the Peace and Justice Resource center and editor of The Peace Exchange Bulletin. Read more of Tom Hayden's writing on The Rag Blog.]

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Obama's 'Black Widow' : The Super Spy Computer

'The NSA's colossal Cray supercomputer, code-named the 'Black Widow,' scans millions of domestic and international phone calls and e-mails every hour. . . . The Black Widow, performing hundreds of trillions of calculations per second, searches through and reassembles key words and patterns, across many languages.'

By Nat Hentoff

Barack Obama will be in charge of the biggest domestic and international spying operation in history. Its prime engine is the National Security Agency (NSA)—located and guarded at Fort Meade, Maryland, about 10 miles northeast of Washington, D.C. A brief glimpse of its ever-expanding capacity was provided on October 26 by The Baltimore Sun's national security correspondent, David Wood: "The NSA's colossal Cray supercomputer, code-named the 'Black Widow,' scans millions of domestic and international phone calls and e-mails every hour. . . . The Black Widow, performing hundreds of trillions of calculations per second, searches through and reassembles key words and patterns, across many languages."

In July, George W. Bush signed into law the FISA Amendments Act of 2008, which gives the NSA even more power to look for patterns that suggest terrorism links in Americans' telephone and Internet communications.

The ACLU immediately filed a lawsuit on free speech and privacy grounds. The new Bush law provides farcical judicial supervision over the NSA and other government trackers and databasers. Although Senator Barack Obama voted for this law, dig this from the ACLU: "The government [is now permitted] to conduct intrusive surveillance without ever telling a court who it intends to spy on, what phone lines and e-mail addresses it intends to monitor, where its surveillance targets are located, why it's conducting the surveillance or whether it suspects any party to the communication of wrongdoing."

This gives the word "dragnet" an especially chilling new meaning.

The ACLU's Jameel Jaffer, director of its National Security Project, adds that the new statute, warming the cold hearts of the NSA, "implicates all kinds of communications that have nothing to do with terrorism or criminal activity of any kind."

Why did Obama vote for this eye-that-never-blinks? He's a bright, informed guy, but he wasn't yet the President-Elect. The cool pragmatist wanted to indicate he wasn't radically unmindful of national security—and that his previous vow to filibuster such a bill may have been a lapse in judgment. It was.

What particularly outraged civil libertarians across the political divide was that the FISA Amendments Act gave immunity to the telecommunications corporations—which, for seven years, have been a vital part of the Bush administration's secret wiretapping program—thereby dismissing the many court cases brought by citizens suing those companies for violating their individual constitutional liberties. This gives AT&T, Verizon, and the rest a hearty signal to go on pimping for the government.

That's OK with the Obama administration? Please tell us, Mr. President.

Some of us began to see how deeply and intricately the telecoms were involved in the NSA's spying when—as part of an Electronic Frontier Foundation lawsuit—it was revealed by a former AT&T technician, Mark Klein, that he had found a secret AT&T room in which the NSA was tapping into the telecom giant's fiber-optic cables. On National Public Radio on November 7, 2007, he disclosed: "It's not just AT&T's traffic going through these cables, because these cables connected AT&T's network with other networks like Sprint, Qwest [the one firm that refused to play ball with the government], Global Crossing, UUNet, etc."

What you should know is that these fruitful cables go through "a splitter" that, as Klein describes, "just copies the entire data without any selection going on. So it's a complete copy of the data stream."

Under the new FISA Amendments Act, there are no limits on where this stream of data can be disseminated. As in the past, but now with "legal" protection under the 2008 statute, your suspicious "patterns" can go to the FBI, Homeland Security, the CIA, and state and local police that are also involved in "fusion centers" with the FBI.

Consider the enormous and bottomless databases that the government—and its NSA—can have a ball with. In James Bamford's The Shadow Factory (Doubleday)—a new book that leads you as far as anyone has gone into the bowels of the NSA—he notes: "For decades, AT&T and much of the rest of the telecommunications industry have had a very secret, very cozy relationship with the NSA." In AT&T's case, he points out, "its international voice service carried more than 18 billion minutes per year, reaching 240 countries, linking 400 carriers, and offering remote access via 19,500 points of presence in 149 countries around the globe."

Voilá! Also, he notes: "Much of those communications passed through that secret AT&T room that Klein found on Folsom Street in downtown San Francisco."

There's a lot more to come that we don't know about. Yet. In The Shadow Factory, James Bamford quotes Bush's Director of National Intelligence Mike McConnell as saying that this wiretapping program was and is "only one program of many highly secret programs approved by Bush following the attacks on 9/11" (emphasis added). McConnell also said of the NSA's nonstop wiretapping: "This is the only aspect of those various activities whose existence has officially been acknowledged."

Come on, Mike. Bush acknowledged the NSA's flagrant contempt of the First and Fourth amendments only after The New York Times broke the story in December 2005. When the Times executive editor, Bill Keller, first decided to hold the explosive story for a year, General Michael Hayden—the former head of the NSA who is currently running the CIA—was relieved because he didn't want the news to get out that "most international communications pass through [these telecommunications] 'switching,' " Bamford reports. It would blow the cover off those corporate communicators. Now, AT&T, Verizon, et al., don't have to worry, thanks to the new law.

There are increasing calls, inside and outside of Congress, for President Obama to urge investigations by an independently bipartisan commission—akin to the 9/11 Commission—to get deeply into the many American and international laws so regally broken by Bush and his strutting team.

But there is so much still to find out about the NSA's "many highly secret programs" that a separate commission is sorely needed to probe exclusively into the past and ongoing actions of the Black Widow and other NSA lawless intrusions into our privacy and ideas.

President Obama could atone for his vote that supported the FISA Amendments Act of 2008 by appointing such a bipartisan commission composed of technology experts who are also familiar with the Constitution.

Bamford says that the insatiable NSA is "developing an artificial intelligence system designed to know what people are thinking." Here come the thought police!

Source / The Village Voice / Posted Dec. 23, 2009

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FISA Foils ACLU Yet Again

Secret Spying Court Stays Secret, Rejects ACLU Plea Again
By Ryan Singel / August 29, 2008

For the the third time in a year, a secret spying court rejected an ACLU request to let some sunshine pierce its dark curtains of secrecy, ruling late Thursday that national security prohibits publishing even unclassified versions of court documents or allowing non-government lawyers to argue in the court.

The Foreign Intelligence Surveillance Court was reacting to an ACLU petition in July to be part of the court's review of new wiretapping powers handed to the Administration by Congress in July. Under the new law ---known as the FISC Amendments Act -- the nation's spies can order companies like AT&T and Google to help the government drop dragnets into domestic internet and phone facilities to capture all communications suspected to involve at least one foreigner.

Previously, the law said that such wiretaps had to be approved on an individual basis if done inside the U.S., while more lax rules held sway if the govenrment wiretapped such communications outside the U.S. That legality did not stop the Bush Administration, which began a secret spying program after 9/11 that included targeting these kinds of communications.

The ACLU argued that the new law expanded the government's powers so broadly that the court needed to make exceptions to its ultra-secret hearings that never allow any opposition.

Foreign Intelligence Surveillance Court judge Marya McLaughin dismissed those pleas, saying (.pdf) that there was no right for the public to know about the workings of the court.

The FISC has no tradition of openness, either with respect to its proceedings, its orders or to Government briefings filed with the FISC. [...]

Although it is possible to identify some benefits which might flow from public access to Government briefs and FISC orders ... any such benefits would be outweighed by the risks to national security created by the potential exposure of the Government's targeting and minimization procedures.

ACLU attorney Jameel Jaffer expressed frustration, yet again -- saying that secrecy should not be wrapped around a new law that affects every American's privacy.

"The Bush administration says that the new law is necessary to protect the country against terrorism, but there’s nothing in the law that prevents the government from monitoring the communications of innocent Americans," Jaffer said in a written statement. "The intelligence court should not be deciding important constitutional issues in secret judicial opinions issued after secret hearings at which only the government is permitted to appear."

The ACLU also wanted to file a brief contesting the constitutionality of the targeting procedures and the law, but McLaughin declined, saying that the group's analysis would not be helpful since only the government and the court know how the spying works.

The FISC was given a little authority in the new law to oversee the procedures the National Security Agency will use to make sure it does not intentionally target Americans or snag purely domestic communications with its new dragnets. Under the rules, the NSA can't point the microphone at a particular American to monitor their overseas communications without a court order naming the target, but can monitor all Americans by targeting anyone outside the country using a new blanket order.

The ACLU also asked the court to make the government file unclassified versions of the documents it has to file with the court that describe the dragnets. Other than a yearly accounting of how many surveillance court orders it has granted or denied, little is known of the court and it has only released a handful of decisions in its 30-year history -- including three in the last 12 months denying the ACLU's petitions to open itself up.

The ACLU also filed suit in federal district court to contest the law, which also provides retroactive amnesty for telecoms that helped the government warrantlessly spy on Americans.

Source / Wired

Thanks to Diane Stirling-Stevens / The Rag Blog

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BOOKS : The Dark Side by Jane Meyer

They described not just standing, but being kept up on their tiptoes with their arms extended out and up over their heads, attached by shackles on their wrists and ankles, for what they described as eight hours at a stretch. During the entire period, they said they were kept stark naked and often cold.

Torture and the rule of law
By Glenn Greenwald / July 12, 2008

The New Yorker's Jane Mayer, one of the country's handful of truly excellent investigative journalists over the last seven years, has written a new book -- "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals" -- which reveals several extraordinary (though unsurprising) facts regarding America's torture regime. According to the New York Times and Washington Post, both of which received an advanced copy, Mayer's book reports the following:

* "Red Cross investigators concluded last year in a secret report that the Central Intelligence Agency's interrogation methods for high-level Qaeda prisoners constituted torture and could make the Bush administration officials who approved them guilty of war crimes."

* "A CIA analyst warned the Bush administration in 2002 that up to a third of the detainees at Guantanamo Bay may have been imprisoned by mistake, but White House officials ignored the finding and insisted that all were 'enemy combatants' subject to indefinite incarceration."

* "[A] top aide to Vice President Cheney shrugged off the report and squashed proposals for a quick review of the detainees' cases . . .

'There will be no review,' the book quotes Cheney staff director David Addington as saying. 'The president has determined that they are ALL enemy combatants. We are not going to revisit it.'"

* "[T]he [CIA] analyst estimated that a full third of the camp's detainees were there by mistake. When told of those findings, the top military commander at Guantanamo at the time, Major Gen. Michael Dunlavey, not only agreed with the assessment but suggested that an even higher percentage of detentions -- up to half -- were in error. Later, an academic study by Seton Hall University Law School concluded that 55 percent of detainees had never engaged in hostile acts against the United States, and only 8 percent had any association with al-Qaeda."

* [T]he International Committee of the Red Cross declared in the report, given to the C.I.A. last year, that the methods used on Abu Zubaydah, the first major Qaeda figure the United States captured, were 'categorically' torture, which is illegal under both American and international law".

* "[T]he Red Cross document 'warned that the abuse constituted war crimes, placing the highest officials in the U.S. government in jeopardy of being prosecuted.'"

This is what a country becomes when it decides that it will not live under the rule of law, when it communicates to its political leaders that they are free to do whatever they want -- including breaking our laws -- and there will be no consequences. There are two choices and only two choices for every country -- live under the rule of law or live under the rule of men. We've collectively decided that our most powerful political leaders are not bound by our laws -- that when they break the law, there will be no consequences. We've thus become a country which lives under the proverbial "rule of men" -- that is literally true, with no hyperbole needed -- and Mayer's revelations are nothing more than the inevitable by-product of that choice.

That's why this ongoing, well-intentioned debate that Andrew Sullivan is having with himself and his readers over whether "torture is worse than illegal, warrantless eavesdropping" is so misplaced, and it's also why those who are dismissing as "an overblown distraction" the anger generated by last week's Congressional protection of surveillance lawbreakers are so deeply misguided. Things like "torture" and "illegal eavesdropping" can't be compared as though they're separate, competing policies. They are rooted in the same framework of lawlessness. The same rationale that justifies one is what justifies the other. Endorsing one is to endorse all of it.

In fact, none of the scandals of radicalism and criminality which we've learned about over the last seven years -- including the creation of this illegal torture regime -- can be viewed in isolation. They're all by-products of the country that we've become in the post-9/11 era, primarily as a result of our collective decision to exempt our Government leaders from the rule of law; to acquiesce to the manipulative claim that we can only be Safe if we allow our Leaders to be free from consequences when they commit crimes; and to demonize advocates of the rule of law as -- to use Larry Lessig's mindless, reactionary clichés -- shrill, Leftist "hysterics" who need to "get off [their] high horse(s)".

That is the mentality that has allowed the Bush administration to engage in this profound assault on our national character, to violate our laws at will. Our political and media elite have acquiesced to all of this when they weren't cheering it all on. Those who object to it, who argue that these abuses of political power are dangerous in the extreme and that we cannot tolerate deliberate government lawbreaking, are dismissed as shrill Leftist hysterics.

All the way back in May, 2006 -- just months after the NYT revealed the illegal NSA spying program -- I wrote in my first book, How Would a Patriot Act, the following about the NSA eavesdropping scandal:

This is not about eavesdropping. This is about whether we are a nation of laws . . . . The heart of the matter is that the President broke the law, repeatedly and deliberately, no matter what his rationale for doing so was . . . .

The National Security Agency eavesdropping scandal is not an isolated act of lawbreaking. It is an outgrowth of an ideology of lawlessness that has been adopted by the Bush administration as its governing doctrine. Others include the incarceration in military prisons of U.S. citizens who were not charged with any crime or even allowed access to a lawyer, the use of legally prohibited torture techniques, and the establishment of a military detention center in Guantanamo Bay, a no-man's-land that the administration claims is beyond the reach of U.S. law. In the media and the public mind, these issues have been seen in isolation, as though they are unconnected.

In fact, all of these controversial actions can be traced to a single cause, a shared root. They are grounded in, and are the by-product of, an unprecedented and truly radical theory of presidential power that, at its core, maintains that the president's power is literally unlimited and absolute in matters relating to terrorism or national security. . . .

What we have in our federal government are not individual acts of lawbreaking or isolated scandals of illegality, but instead a culture and an ideology of lawlessness.

But those who argued such things were The Shrill Leftists, The Crazed Civil-Liberties Extremists, the Hysterics. And they still are. By contrast, Serious People understood -- and still understand -- that our leaders made complex and weighty decisions for our own Good and that terms like "lawbreaking" and "war crimes" and "prosecutions" have no place in respectable American political circles. Hence, our political leaders operate in a climate where they know they can do anything -- anything at all, including flagrantly breaking our most serious laws -- and they will be defended, or at least have their behavior mitigated, by a virtually unanimous political and media establishment. The hand-wringing over Mayer's latest revelations will be led by the very people who are responsible for what has taken place -- responsible because they decided that rampant, deliberate lawbreaking by our Government officials was nothing to get worked up over.

There are many political disputes -- probably most -- composed of two or more reasonable sides. Whether the U.S. Government has committed war crimes by torturing detainees -- conduct that is illegal under domestic law and international treaties which are binding law in this country -- isn't an example of a reasonable, two-sided political dispute. Nor is the issue of whether the U.S. Government and the telecom industry engaged in illegal acts for years by spying on Americans without warrants. Nor is the question of whether we should allow Government officials to break our laws at will by claiming that doing so is necessary to keep us Safe.

There just aren't two sides to those matters. That's what the International Red Cross means when it says that what we did to Guantanamo detainees was "categorically torture." It's what the only federal judges to adjudicate the question -- all three -- have concluded when they found that the President clearly broke our laws with no valid excuses by spying on our communications for years with no warrants. It's why the Bush administration has sought -- and repeatedly received -- immunity and amnesty for the people who have implemented these policies. It's because these actions are clearly illegal -- criminal -- and we all know that.

And that's true no matter how many Bush-loyal DOJ lawyers justify the behavior, no matter how many right-wing lawyers go on TV to defend the Government's conduct, no matter how many Brookings "scholars" go to The New Republic in order flamboyantly to boast how deeply complex these matters are and how only Super-Experts (like themselves) can grapple with the fascinating intellectual puzzles they pose. Displaying cognitive angst and/or above-it-all indifference in the face of unambiguously illegal and morally reprehensible government conduct isn't a sign of intellectual sophistication or political Seriousness. It's exactly the opposite. It's the hallmark of complicity with it.

Law Professor Jonathan Turley, on MSNBC last night discussing Mayer's revelations, put it this way:

[The IRC] is the world's preeminent institution on the conditions and treatment of prisoners and specifically what constitutes torture. And the important thing here is they're saying it's not a close question, that as many of us, and there are many, many of us who have argued for years that this is clearly, unmistakably a torture program; the Red Cross is saying the same.

The problem for the Bush administration is they perfected plausible deniability techniques. They bring out one or two people that are willing to debate on cable shows whether water-boarding is torture. And it leaves the impression that it's a close question. It's not. It's just like the domestic surveillance program that the a federal court just a week ago also said was not a close question. These are illegal acts. These are crimes. And there weren't questions before and there's not questions now as to the illegality. . . .

I never thought I would say this, but I think it might, in fact, be time for the United States to be held internationally to a tribunal. I never thought, in my lifetime, that I would say that, that we have become like Serbia, where an international tribunal has to come to force us to apply the rule of law. I never imagined that a Congress, a Democratic-led Congress would refuse to take actions, even with the preeminent institution of the Red Cross saying, this is clearly torture and torture is a war crime. They are still refusing to take meaningful action.

So, we've come to this ignoble moment where we could be forced into a tribunal and forced to face the rule of law that we've refused to apply to ourselves.

That's the inevitable outcome when a country's political establishment decrees itself exempt from the rule of law. If the rule of law doesn't constrain the actions of government officials, then nothing will. Continuous revelations of serious government lawbreaking have led not to investigations or punishment but to retroactive immunity and concealment of the crimes. Judicial findings of illegal government behavior have led to Congressional action to protect the lawbreakers. The Detainee Treatment Act. The Military Commissions Act. The Protect America Act. The FISA Amendments Act. They're all rooted in the same premise: that our highest government leaders have the power to ignore our laws with impunity, and when they're caught, they should be immunized and protected, not punished.

When our political and media elite aren't defending the Bush administration's lawbreaking, they're dismissing its importance. David Broder believes that government crimes are mere "policy disputes" that shouldn't be punished. And here's "liberal" pundit Tim Rutten of The Los Angeles Times, acknowledging that our highest political officials ordered illegal torture, but then invoking the very common -- and indescribably destructive -- mentality of most of our Good Establishment Liberals to insist that they should not be held legally accountable:

It's true that there are a handful of European rights activists and people on the lacy left fringe of American politics who would dearly like to see such trials, but actually pursuing them would be a profound -- even tragic -- mistake. Our political system works as smoothly as it does, in part, because we've never criminalized differences over policy. Since Andrew Jackson's time, our electoral victors celebrate by throwing the losers out of work -- not into jail cells.

The Bush administration has been wretchedly mistaken in its conception of executive power, deceitful in its push for war with Iraq and appalling in its scheming to make torture an instrument of state power. But a healthy democracy punishes policy mistakes, however egregious, and seeks redress for its societal wounds, however deep, at the ballot box and not in the prisoner's dock.

To do otherwise risks the stability of our own electoral politics almost as recklessly as the Bush/Cheney regime has risked our national interests abroad.

That warped mentality -- as much as the most lawless elements of the Bush administration -- is what is responsible for the destruction of our fundamental national character over the last seven years. "Laws" and "crimes" are only for the common people and for other countries. We're too magisterial a country, our political leaders are too Important and too Good, to subject them to punishment when they break our laws. That's the mentality that has created the climate of Lawlessness that defines who we are.

Yes, I'm well aware that the U.S, like all countries, was deeply imperfect prior to 9/11, and that many of the systematic excesses of the Bush era have their genesis prior to 2001. The difference (a critical one) is that what had been acts of lawbreaking and violations of our national values have become the norm -- consistent with, rather than violative of, our express values and policies. As Mayer writes in her book:

For the first time in its history, the United States sanctioned government officials to physically and psychologically torment U.S.-held captives, making torture the official law of the land in all but name.

The enactment of the new FISA bill last week was destructive for many reasons, including the fact that it legalized a regime of warrantless eavesdropping that is certain to be abused. But the far more destructive aspect of the new law is that it was just the latest example -- albeit the most flagrant -- of our political class abolishing the rule of law in this country.

It will never stop being jarring that Pulitzer-Prize-winning revelations from the New York Times that the President and the telecom industry were committing felonies for years culminated in the full-scale protection of the lawbreakers and retroactive legalization of the criminality by the "opposition party" which controls the Congress.

One cannot coherently sanction or even acquiesce to serious government lawbreaking and then feign outrage over illegal torture and other war crimes. The sanctioning of government illegality is precisely what leads to abuses like the American torture regime. Those who have spent the last seven years scoffing at Unserious, Hysterical objections to Bush lawlessness are the very people who have created this climate that they will now pretend to find so upsetting. The "rule of law" isn't some left-wing dogma that is the province of Leftist radicals and hysterics. It's the cornerstone of every civilized and free society, and Jane Mayer's new book is but the latest piece of evidence to prove that.

Source. / salon.com

Find The Dark Side by Jane Meyer at Amazon.Com

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FISA Bill Challenged in Court

President Bush, in the Rose Garden on Wednesday, called the wiretapping bill "long overdue" and crucial to national security. Photo by Brendan Smialowski / NYT.
Bush Signs Spy Bill, ACLU Sues
By Ryan Singel / July 10, 2008

The American Civil Liberties Union filed suit Thursday over a controversial wiretapping law, challenging the constitutionality of the expanded spy powers Congress granted to the president on Wednesday.

The federal lawsuit was filed with the court just hours after Bush signed the bill into law.

The ACLU is suing on behalf of journalist and human rights groups, asking the court put a halt to Congress's legalization of Bush's formerly secret warrantless wiretapping program. The ACLU contends (.pdf) the expanded spying power violates the Constitution's prohibition on unreasonable searches and seizures.

On Wednesday, the Senate gave final congressional approval to a massive expansion of the Foreign Intelligence Surveillance Act, finishing a year of debate over how far the U.S. government should be able to conduct blanket surveillance using telecom facilities inside the United States.

In passing the FISA Amendments Act, Congress gave the executive branch the power to order Google, AT&T and Yahoo to forward to the government all e-mails, phone calls and text messages where one party to the conversation is thought to be overseas. President Bush signed the bill into law Thursday morning, describing it as a bill that "protect[s] the liberties of our citizens while maintaining the vital flow of intelligence."

The ACLU contends those blanket powers to grab international communications of Americans without specific court orders violate the Fourth Amendment and would stymie journalists who often speak to confidential sources outside the country.

Plaintiff Naomi Klein, the liberal columnist and author, said the surveillance would compromise her writing about international issues.

"If the U.S. government is given unchecked surveillance power to monitor reporters' confidential sources, my ability to do this work will be seriously compromised," Klein said.

Longtime foreign correspondent Christopher Hedges admits that surveillance is not a new obstacle for journalists, but says this goes a step too far.

"There is a lot of monitoring that goes on especially when you are overseas," Hedges said. "But this creates a further erosion in my ability to work as a journalist."

The suit, filed in the U.S. District Court for the Southern District of New York Thursday, asks the judge to stay the implementation of the new powers, until its constitutionality is determined.

The Electronic Frontier Foundation, which has spearheaded the still ongoing lawsuits against the nation's telecoms, will challenge the provision of the bill that gives retroactive amnesty to telecoms that are being sued for helping the government spy on Americans without warrants.

They argue that Congress's attempt to have citizen lawsuits dismissed violates the separation of powers.

But the San Francisco-based online rights group also announced in a fund-raising letter on Thursday that it would also challenge the constitutionality of the bill's expanded spying powers.

"We are also preparing a new case against the government for its warrantless wiretapping, past, present and future," said EFF senior staff attorney Kevin Bankston, who said the details were being withheld to keep the element of surprise.

"But suffice to say it will be quite different from the other cases against the government that have been filed so far," Bankston said. "Like with our case against AT&T, however, the ultimate goal will be the same: to halt the mass interception of Americans' communications and to dismantle the dragnet spying network that was first exposed by our witness, AT&T whistleblower Mark Klein."

Source. / Wired.com

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Barack Obama on FISA, Telecoms

Today, in response to those of us who have strongly disagreed with his position on the FISA legislation, Barack Obama posted the following message on mybarackobama.com.

My position on FISA
By Barack Obama / July 4, 2008

I want to take this opportunity to speak directly to those of you who oppose my decision to support the FISA compromise.

This was not an easy call for me. I know that the FISA bill that passed the House is far from perfect. I wouldn't have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush's abuse of executive power. It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush administration's program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses. That's why I support striking Title II from the bill, and will work with Chris Dodd, Jeff Bingaman and others in an effort to remove this provision in the Senate.

But I also believe that the compromise bill is far better than the Protect America Act that I voted against last year. The exclusivity provision makes it clear to any president or telecommunications company that no law supersedes the authority of the FISA court. In a dangerous world, government must have the authority to collect the intelligence we need to protect the American people. But in a free society, that authority cannot be unlimited. As I've said many times, an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people. This compromise law assures that the FISA court has that responsibility.

The Inspectors General report also provides a real mechanism for accountability and should not be discounted. It will allow a close look at past misconduct without hurdles that would exist in federal court because of classification issues. The recent investigation (PDF) uncovering the illegal politicization of Justice Department hiring sets a strong example of the accountability that can come from a tough and thorough IG report.

The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I'm persuaded that it is necessary to keep the American people safe -- particularly since certain electronic surveillance orders will begin to expire later this summer. Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I've chosen to support the current compromise. I do so with the firm intention -- once I'm sworn in as president -- to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.

Now, I understand why some of you feel differently about the current bill, and I'm happy to take my lumps on this side and elsewhere. For the truth is that your organizing, your activism and your passion is an important reason why this bill is better than previous versions. No tool has been more important in focusing peoples' attention on the abuses of executive power in this administration than the active and sustained engagement of American citizens. That holds true -- not just on wiretapping, but on a range of issues where Washington has let the American people down.

I learned long ago, when working as an organizer on the South Side of Chicago, that when citizens join their voices together, they can hold their leaders accountable. I'm not exempt from that. I'm certainly not perfect, and expect to be held accountable too. I cannot promise to agree with you on every issue. But I do promise to listen to your concerns, take them seriously, and seek to earn your ongoing support to change the country. That is why we have built the largest grassroots campaign in the history of presidential politics, and that is the kind of White House that I intend to run as president of the United States -- a White House that takes the Constitution seriously, conducts the peoples' business out in the open, welcomes and listens to dissenting views, and asks you to play your part in shaping our country's destiny.

Democracy cannot exist without strong differences. And going forward, some of you may decide that my FISA position is a deal breaker. That's ok. But I think it is worth pointing out that our agreement on the vast majority of issues that matter outweighs the differences we may have. After all, the choice in this election could not be clearer. Whether it is the economy, foreign policy, or the Supreme Court, my opponent has embraced the failed course of the last eight years, while I want to take this country in a new direction. Make no mistake: if John McCain is elected, the fundamental direction of this country that we love will not change. But if we come together, we have an historic opportunity to chart a new course, a better course.

So I appreciate the feedback through my.barackobama.com, and I look forward to continuing the conversation in the months and years to come. Together, we have a lot of work to do.

Source. / The Huffington Post

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AT&T Whistleblower on Congress and FISA

Mark Klein in the offices of his lawyers in San Francisco. Photo by Ryan Singel / Wired.com.
Says Spy Bill Creates 'Infrastructure
for a Police State'
By Ryan Singel / June 27, 2008

Mark Klein, the retired AT&T engineer who stepped forward with the technical documents at the heart of the anti-wiretapping case against AT&T, is furious at the Senate's vote on Wednesday night to hold a vote on a bill intended to put an end to that lawsuit and more than 30 others.

[Wednesday]'s vote by Congress effectively gives retroactive immunity to the telecom companies and endorses an all-powerful president. It’s a Congressional coup against the Constitution.

The Democratic leadership is touting the deal as a "compromise," but in fact they have endorsed the infamous Nuremberg defense: "Just following orders." The judge can only check their paperwork. This cynical deal is a Democratic exercise in deceit and cowardice.

Klein saw a network monitoring room being built in AT&T's internet switching center that only NSA-approved techs had access to. He squirreled away documents and then presented them to the press and the Electronic Frontier Foundation after news of the government's warrantless wiretapping program broke.

Wired.com independently acquired a copy of the documents (.pdf) -- which were under court seal -- and published the wiring documents in May 2006 so that they could be evaluated.

The lawsuit that resulted from his documents is now waiting on the 9th U.S. Appeals Court to rule on whether it can proceed despite the government saying the whole matter is a state secret. A lower court judge ruled that it could, because the government admitted the program existed and that the courts could handle evidence safely and in secret.

But the appeals court ruling will likely never see the light of day, since the Senate is set to vote on July 8 on the FISA Amendments Act of 2008, which also largely legalizes Bush's warrantless wiretapping program by expanding how the government can wiretap from inside the United States without getting individualized court orders.

Klein continues:

Congress has made the FISA law a dead letter--such a law is useless if the president can break it with impunity. Thus the Democrats have surreptitiously repudiated the main reform of the post-Watergate era and adopted Nixon’s line: "When the president does it that means that it is not illegal." This is the judicial logic of a dictatorship.

The surveillance system now approved by Congress provides the physical apparatus for the government to collect and store a huge database on virtually the entire population, available for data mining whenever the government wants to target its political opponents at any given moment—all in the hands of an unrestrained executive power. It is the infrastructure for a police state.

Neither the House nor the Senate has had Klein testify, nor have telecom executives testified in open session about their participation.

The bill forces the district court judge handling the consolidated cases against telecoms to dismiss the suits if the Attorney General certifies that a government official sent a written request to a phone or internet provider, saying that the President approved the program and his lawyers deemed it legal. Judge Vaughn Walker of the California Northern District can ask to see the paperwork, but would not be given leeway to decide if the program was legal.

Source. / Wired.com

Thanks to Dennis Thompson / The Rag Blog

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