President Obama Revealed as Spymaster Extraordinaire

The massive surveillance program of the Obama administration first came to general public attention with the revelation that the Department of Justice obtained telephone records from more that twenty separate telephone lines, which the Associated Press (AP) described as “unprecedented” and an extraordinary action” — over 100 AP journalists had their phone records seized. The Newspaper Association of America, a leading trade group, declared: “These actions shock the American conscience and violate the critical freedom of the press protected by the U.S. Constitution and the Bill of Rights.” [1]

Next came revelations about data-mining of Verizon Business Network Services, based on an order from the U.S. Foreign Intelligence Surveillance Court, requesting “all call detail records” for calls from the U.S. to locations abroad, or all calls within the U.S., including local calls.

The surveillance did not involve only teleprone calls, as a program called “PRISM”  allegedly empowers the National Security Agency (NSA) access to all the private data stored by major Internet companies, like Microsoft, AOL, Skype, Google, Apple and Facebook, including email, video chats, photos, files transfers and more. [2]

Besides these two massive data-mining operations, there is a program called “Boundless Information,” which creates a global “heat map” detailing the source countries of intercepted electronic records. Amy Goodman says that 97 billion interceptions occurred in March 2013 alone. [3]

The hero or villain of the exposure of this surveillance operation occurring globally and, most controversially, on almost all, if not all, U.S. citizens, is Edward Snowden, a former CIA staffer and analyst for the private intelligence consulting firm, Booz Allen Hamilton. Snowden spoke to and provided documentation to journalists Glenn Greenwald, Laura Poitras and Barton Gellman in Hong Kong.

Reaction to Snowden ranged from ridicule and astonishment that someone who didn’t graduate from high school could pull off such a coup; to calls for a criminal indictment of Snowden; and to a claim by Daniel Ellsberg, made famous by his release of the Pentagon Papers, that Snowden’s whistleblowing provides an opportunity to roll back a key part of what has amounted to an “executive coup” against the U.S. Constitution.

The ACLU has taken the most direct action against the legality of the NSA’s collection of customers’ “metadata,” including the phone numbers dialed and the length of the calls. The ACLU’s suit asks the court to end the program, purge any records collected and to declare that the surveillance is unconstitutional. The ACLU charges that the program’s scope is “akin to snatching every American’s address book — with annotations detailing whom we spoke to, when we talked, for how long and from where.” The ACLU added that the government “is given a comprehensive record of our associations and movements… .”

Assurances are being given that snoopers in both government and private employment will not be reading the contents of records they seize; however, it is a virtual certainty that if any phone calls, or other electronic communications raise suspicions, they will be read in full. Furthermore, assurances are being given that surveillance programs are subject to very careful oversight, particularly, the Congress, is kept fully informed. Congressional oversight takes place behind closed doors in the House and Senate intelligence committees. None of the members of these committees may reveal classified information discussed in secret committee meetings, under pain of being dismissed from the committee or even a criminal indictment. As Washington Post columnist Ruth Marcus puts it: “Yet, for the most part, lawmakers must face down intelligence officials, and assess their urgent claims of national security without the benefit of expert staff. In this way, Congress can serve more as useful cover for the executive branch than a true check on it. Once briefed, lawmakers are captive of their classified information: They cannot disclose what they have been told.” Of President Obama, Marcus says: “his administration has been more of an obstacle than an enabler of effective oversight and reasonable transparency. Declining to publicly reveal operational details is understandable; refusing to reveal even its legal analysis of surveillance and other anti-terrorism activities is not.” [4]

We would be better off if the intelligence committees were abolished and any nefarious actions of our government were subject to open democratic debate.

During the past two weeks, CBS Evening News played a 2007 video clip of Barack Obama lambasting the Bush administration for warrantless wiretapping. Defenders of Obama are claiming that Obama differs from George W. Bush, because he, Obama, obtains a warrent for every surveillance act; yet the FISA court is a legal figleaf, because of the past 1,700-plus requests, zero have been denied. Moreover, Obama had pledged, even in his initial presidential campaign, that he would run the most transparent administration in history. Most of what Obama has done in his anti-terrorism programs has been covered in secrecy. I recently learned that Obama has publicly praised the transparency of the secretive FISA court.

It is typically Barack Obama to announce the formation of a committee composed heavily of civil libertarians to assess the surveillance programs and make recommendations for changes. As in his recent speech on anti-terrorsm policy, Obama raised critical questions about policies his administration has implemented since he began his presidency and then he makes recomendations for changes that are more superficial and cosmetic than real.

At this point, I am disposed to consider Edward Snowden to have rendered a great public service by blowing the whistle on the massive surveillance program. I am not yet ready to label him a hero, because he has continued to talk and raise questions about his motivations.

When Director of National Intelligence James R. Clapper Jr. was asked by Senator Ron Wyden (D-OR) at the Senate Intelligence Committee hearing in March 2013 if the NSA collects “any type of data at all on millions or hundreds of millions of Americans,” Clapper responded, “No, sir.” If he was under oath, he should have been prosecuted for perjury. If he was not under oath, he should have been fired for telling such a blatent lie., misleading one and all about a major governmental program. Clapper’s response is much more reprehensible than anything Edward Snowden has done.

Has this surveillance program affecting so many millions home and abroad prevented any acts of terrorism? When NSA head Gen. Keith Alexander and Sean Joyce, the deputy director of the FBI, appeared before the House Intelligence Committee, they spoke of the surveillance program stopping 50 violent plots, 10 of them domestic in nature. Joyce identified four: 1) the bombing of the NYC subway; 2) the bombing of the NY Stock Exchange; 3) the bombing of the Mubai, India hotel; and 4) the financing of al-Shabab in Somalia. 3) involving a Chicagoan named David Headly, was actually the result of a tip from British intelligence. 2) may also have been the result of a tip. In the absence of solid documentation, some intelligence analysts are skeptical that this mass data-mining operation prevented any terrorist plot from succeeding. 

As for domestic plots, most of them have been initiated by the FBI. The FBI has a virtual army of informers, who frequent places where Muslims tend to gather — mosques, coffee houses and the  like — and when they hear persons making very disparaging remarks about the United States, the FBI sets up a scenario for an act of violence, into which the targeted individual or group is pulled in and the trap sprung just before the act is to be carried out. This devising of plots has long been called “entrapment” is legal circles. A major investigation carried out by Mother Jones magazine chronicled the FBI modus operandi.

Finally, we owe Edward Snowden a debt of gratitude for releasing Presidential Policy Directive 20 — a top-secret memo from President Barack Obam directing U.S. intelligence agencies to draw up a list of targets for U.S. cyberattacks. It revealed Obama’s hypocrisy, since he has been such a fiece opponent of other nations — especially China — conducting cyberattacks against the U.S.

Footnotes

[1] Greg Mitchell, “Noted,” The Nation, June 3, 2013.

[2] Amy Goodman, “Leak reveals coup on Constitution,” The Albuquerque Journal, June 15, 2013.

[3] Ibid.

[4] Ruth Marcus, “James Clapper’s ‘least untruthful’ answer,” The Washington Post, June 13, 2013.

Is the United States Destined to Endless Wars and a High Rate of Violence

I. How Does War on al-Qaeda End?

The Justice Department White Paper says a lethal strike against an American citizen can only be made to protect against “an imminent threat of violent attack.” However, imminence “does not require the United States to have clear evidence that a specific attack on US persons or interests will take place in the significant future.” The White Paper further claims that the US can carry out operations “with the consent of the host nation’s government,” and then declares that such operations would still be lawful “after a determination that the host  nation is unwilling or unable to suppress the threat posed by the individual targeted.” In essence, sovereignty conditions don’t really matter.

“Can any of us imagine a time when we are not firing weapons into foreign countries; when we are not sending agents into mosques to foment plots; when we are not spying on Muslim students?” [1] What if al-Qaeda is no more? “Surely there will be (and are) other protean fighters who claim no country and who will swear themselves to our destruction. Why should we not wage war against them?” [2]

II. Is Nonviolence Possible?

Todd May, professor of the Humanities at Clemson University, has written a very provocative piece on whether nonviolence is possible in the United States. Professor May says first and foremost: “We are steeped in violence. For example, our murder rate is 3 to 5 times that of most other industrialized nations. We can’t get rid of the death penalty, which causes disbelief in non-death penalty countries. When faced with gun violence, many prescribe more guns as the solution.” [3]

May identifies one reason for our high rate of violence as “competitive individualism:” We are wary of others and reject the social solidarity characteristic of Denmark, Sweden and New Zealand. We view our fellows as our competitors. Our ability to control events in the world has declined, possibly starting with Vietnam. Our desire to control reinforces violence.

Another reason for our violence is economic. We no longer count on government and often view it as an enemy. We no longer feel obligations to others who share the planet. We seek the best economic returns for ourselves. Many believe in U.S. exceptionalism.

Professor May proposes a nonviolence which is not passive, but is “creative activity.” We must recognize others as our fellow human beings, even when they are on “the other side of the barricades.” Also, we must recognize that we are all fragile human beings.

May says the civil rights movement is the most shining example of nonviolence and points out that we have pulled together after other tragedies. He quotes Immanuel Kant as saying the core of morality is treating others not simply as means but also ends in themselves. 

Footnotes

[1] Tanehi Coates, “How Does the War Against al-Qaeda End?” The Populist, April 1, 2013.

[2] Ibid.

[3] Todd May, “Is American Nonviolence Possible?” The New York Times, April 21. 2013.

DNA’s Dark Side and the GOP Embrace of Clean Urine

I. The Dark Side of DNA

Currently, 28 states and federal law enforcement collect DNA upon arrest — when a person is still presumed to be innocent. In 2011, Maryland police collected 10,666 DNA samples and only 19 led to an arrest. Only 9 of the 28 states that collect data from arrestees expunge the samples automatically if the person is not convicted. [1]

Because African-Americans are significantly overrepresented in CODIS, it is possible to use the database to identify up to 17 percent of the country’s entire African-American population, researchers in the Duke University Center for Genome Ethics, Law and Policy found in 2011. In a racially biased system, DNA collection on arrest creates a racial dragnet.

This racially biased system is not unique to the United States, as by 2008, Britain’s National Database stored DNA data from 27 percent of the country’s black population and from 77 percent of young black males. [2]

II. The GOP’s Embrace of Clean Urine

GOP lawmakers are enthusiastically embracing the idea of making clean urine a condition of receiving public benefits. Since 2011, seven states have passed laws mandating drug tests for Temporary Assistance for Needy Families (TANF) applicants and recipients. Employers are even getting into the act, as by 2006, 84 percent of American employers were reporting that they drug-tested their workers. [3]

The GOP lawmakers are building on the hero of many of them, Ronald Reagan, who signed into law the Drug Free Workplace Act, which mandated urine tests for every employee working for a federal grantee and even for those working for some contractors.

Footnotes

[1] Jason Silverstein, “The Dark Side of DNA,” The Nation, April 15, 2013.

[2] Ibid.

[3] Isabel MacDonald, “The GOP’s Drug Test Dragnet,” The Nation, April 22, 2013.

The Invisibility of the Mentally Ill

The mentally ill have beome more invisible in the United States due to deinstitutionalism and their own desire to be invisible. Furthermore, there is a strong link between the criminal justice system and those sent to state psych hospitals: 92 percent of California’s psych patients got there via the criminal justice system. [1]

“Between 1998 and 2005, the number of the mentally ill behind bars more than quadrupled; the share of mentally ill people among the incarcerated was five times higher than in the general population.” [2]

Mental illness appears to be a factor in so many arrest-related deaths that the U.S. Department of Justice has considered adding mental status to the national database of such deaths. [3]

The decline in those in U.S. mental institutions has been dramatic: in the 1950s, more than a half million people lived in a mental institution, but by the 1970s, only 160,000 did, due to the efforts of psychiatrists, philanthrapists and politicians to deinstitutionalize the mentally ill. Today, there’s one psychiatric bed per 7,100 Americans. Broadly speaking, according to the National Institute for Mental Health, the term “mentally ill” could be applied to a whopping quarter of the U.S. adult population in any given year, because it includes everything from depression to attention deficit disorder. [4]

Funding for the care of the mentally ill is shrinking, as by 1985, the federal government covered just 11 percent of mental-health agency budgets. Collectively, states have cut $4.35 billion in mental-health spending since 2009. [5]

Besides the great decline in institutional care and funding for those with a mental illness, what many people with mental illness fear most is not the illness itself but its discovery. “Given the fear and discrimination that people with mental illness face all the time, in all aspects of life, there is little incentive for the undiscovered to trade the one protection they do have — invisibility — for some theoretical rights to be enforced in a future that seems less likely to occur if no one knows they are mentally ill.” [6]

Footnotes

[1] Mac McClelland, “Schizophrenic. Killer. My Cousin,” Mother Jones, May/June 2013.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Mariam Markowitz, “Madness in the Method,” The Nation,  April 22, 2013.

U.S.Supreme Court Rulings on the Second Amendment

United States v. Cruikshank (1875)

“The right to bear arms is not granted by the Constitution, neither is it in any manner dependent upon that instrument for its existence.” “The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.”

United States v. Miller (1939)

The Second Amendment “protects arms that had a reasonable relationship to the preservation or efficiency of a well-regulated militia.”

“In the absence of any evidence tending to show that possession of a shotgun having a barrel of less than eighteen inches at this time has some reasonable relationship to any preservation of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that it could contribute to the common defense.”

Gun rights advocates cite Miller, because they claim that the Court ruled that the Second Amendment protected the right to keep arms that are part of “ordinary military equipment.” Gun control advocates cite Miller, because they claim the Court did not consider the question of whether the sawed-off shotgun in the case would be an applicable weapon for personal defense, instead looking solely at the weapon’s suitability for the “common defense.”

District of Columbia v. Heller (2008)

The Court ruled that the Second Amendment “codified a pre-existing right” and that it “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” The Court also ruled, however, that “the right is not unlimited. It is not a right to keep and bear any weapon whatsoever in any manner whatsoever and for whatever purposes.” The Court clarified that many longstanding prohibitions and restrictions on firearms possession listed by the Court are consistent with the Second Amendment.

McDonald v. Chicago (2010)

The Court ruled that the Second Amendment limits state and local governments to the same extent it limits the federal government.

Presser v. Illinois (1886)

Herman Presser organized his own militia and led a parade group of 400 men. The decision on Presser upheld the state’s authority to regulate the militia and found that citizens have no right to create their own militias or to own weapons for semi-military purposes. The Court also said: “A state cannot prohibit the people therein from keeping and bearing arms to an extent that would deprive the United States of the protection afforded to them as a reserve military force.”

Miller v. Texas (1894)

The ruling was that the Second Amendment does not apply to a state law, such as the Texas law on unlicensed guns. Franklin Miller had shot a policeman with an unlicensed handgun.

Robertson v. Baldwin (1897)

The Court ruled that laws regulating concealed arms did not infringe upon the right to keep and bear arms, and thus was not a violation of the Second Amendment.

U.S. Court of Appeals Decisions Following District of Columbia v. Heller

Of the first eleven U.S. Court of Appeals’ decisions on firearms following Heller, eight of them upheld a restriction on firearms ownership and possession. Of the other three, the most significant declared an Illinois’ ban on the concealed carrying of firearms to be unconstitutional. (Moore v. Madigan – 2012) However, in U.S. v. Skoien (2009), the Seventh Circuit Court, by a vote of 10 to 1, reinstated Skoien’s conviction, citing the strong relationship between the law in question and the government’s objective. Skoien was sentenced to two years in prison for the gun violation and likely will be subject to a lifetime ban on gun ownership.

In scissoring “a well-regulated militia” out of the Second Amendment, the Heller decision ended the long history in which the U.S. Supreme Court has never ruled that the Second Amendment is based on a “pre-existing right” and/or is unconnected to preservation of a militia.

 

A Non-Policy,Contradictory Counterterrorism Speech

I’ve had to take time off from blogging due to restrictions on eye movement in preparing for a retina reattachment operation on my left eye and then recovering from the operation. Today starts my third full week since the operation and the retina remains attached.

On June 25 I will have a cataract removed from my right eye. After these two opeations, I may be able to give up eyeglasses, except for reading.

Ther most succinct assessments I’ve read of President Barack Obama’s recent counterterrorism policy speech has been done by a senior Brookings Institute fellow and a Washington Post reporter. Benjamin Wittas of Brookings, wrote in his Web site Lawfare that: “To put it crassly, the president sought to rebuke his own administration for taking the positions it has — but also to make sure that it could continue to do so.” Scott Wilson, writing in the May 23, 2013 Washington Post, noted the “unusual ambivalence from a commader in chief over the difficulties” in trying to bring national security policies in line with the nation’s founding values.

My own assessment of the speech is that it was designed to enhance Obama’s legacy, despite counterwailing evidence; tried to put the onus on Congress for not giving him clear enough policy directions; doesn’t explain how major policy changes will be made in the future; and rebukes much of what his administration has already done in counterterrorism poalicy.

Four years ago, at the National Archives, President Obama advocated an abrupt departure from the national secuity policies of a country he said had “veered off course” under George W. Bush. He condemned the Bush administration for detention and interrogation policies that are contrary to American values and he banned the use of harsh interrogation techniques.

Despite the National Archives speech, Obama has essentially followed Bush policies and both have relied on the 2001 Authorization for Use of Military Force (AUMF); however, in his counterterrorism speech he called on Congress to put llimits on a president’s use of military force, ignoring the fact that the  AUMF does not require the president to rely heavily on drone attacks and Special Forces in counterterrorism policy.

President Obama also wants Congress to pass media shield legislation. This request comes in the immediate wake of the Department of Justice secretly obtaining telephone records on more than 20 separate telephone lines and involving more than 100 Associated Press journalists. The records were deemed to be important in an effort to discover the source of a foiled bomb plot.

Obama said he was “troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable” and he called on Attorney General Eric Holder to assess the guidelines for such investigating and report to him in July. Congressional lawmakers might not be eager to pass media shield legislation for an administration that had secretly launched a major search for journalists’ telephone records.

One of the most impassioned passages in Obama’s speech was his condemnation of force-feeding at the Guantanamo Bay detention facility (Gitmo). Obama asked: “Is that who we are?” “Is that the America we want to leave to our children?” President Obama failed to note that the United Nations Human Rights Commission determined in 2006 that the violent force-feeding of Gitmo detainees amounted to torture.*

Barack Obama pledged as far back as the 2008 presidential campaign that he would close Gitmo. Well if he didn’t feel he had the legal authority to close the facility, he certainly has it now. Section 1028(d) of the 2013 National Defense Authorization Act has a waiver provision that empowers the Secretary of Defense to authorize transfers when it is in the national security interest. The defense secretary could cite analyses that Gitmo breeds terrorists and transfer all detainees out.

Regarding Gitmo, President Obama also failed to promise to stop blocking the release of detainees cleared by habeas corpus proceedings.

In his counterterrorism speech, Barack Obama made the sensible point that the war on terrorism, like all wars, must end some day; furthermore, he said we could not indefinitely detain suspected terrorists not convicted in a lawful process. Yet he provided no guidance on how or when these kinds of policies would end. Obama  has been a supporter of indefinite detention up to now and law enforcement agencies continue to arrest and bring to trial home-grown suspected terrorists who have no known llink to al Qaeda or associated forces. Once more, intelliigence analysts contend that al Qaeda has metastasized into smaller regional groupings that have no discernible link to a centralized authority.

President Obama’s position and that of the Department of Justice is a hopeless muddle in regard to when a U.S. citizen can be killed. In his counterterrorism speech, Obama said: “For the record, I do not believe it would be Constitutional for the government to target and kill any U.S. citizen — with a drone or shotgun — without due process.” However, he immediately carved out an exception for a “terrorist,” such as Anwar al Awlaki, who goes abroad to wage war against Americans and “we cannot capture him alive.”

The Department of Justice White Paper says that a U.S. citizen can be killed even when there is no “clear evidence that a specific attack on US persons and interests will take place in the immediate future.”

President Obama further muddied the waters wen he said that we only strike at al Qaeda and associated forces; also, he flatly stated that “America does not take strikes to punish individuals.” Later, howeve,r, in the counterterrorism speech, he said that the decision to use force against individuals or groups is “the hardest thing I do.”

The Obama speech included an acknowledgment that the drone program kills civilians and he proposed a tougher policy, whereby a drone attack could not be made unless there was a “near-certainty” that civilians would not be harmed. Given, however, that U.S. military commanders and CIA drone operatives have insisted for years that utmost precautions are taken to prevent harm to civilians, “near-certainty” does not seem to be a real policy change.

Although Obama’s speech didn’t specify that “signature strikes” would end — strikes based on “patterns of life,” such as helping to unload ammunition from a truck — a White House Fact Sheet changes the current policy of defining as combatants all men of military age in the strike zone.

In summary, President Barack Obama’s counterterrorism speech repudiates much of what his administration has done and proposes pseudo policy changes that will allow him to carry out essentially the same counterterrorism policies he pursued in his first term.

*Although President Obama has contended that he has ended the use of torture and the authority for it, interviewed Afghan detainees have described interrogation methods of sleep deprivation and extreme temperature modification in CIA-operated prisons in Afghanistan during Obama’s presidency.

When President Obama led the effort to give detrainees more legal rights in the Military Commissions Act of 2009, the provision in the Military Commissions Act of 2006 that gives the president the authority to permit the CIA to use torture — enhanced interrogation — under national security grounds was not touched.