Tag Archives: civil liberties

Freedom (Comcast’s) vs. Rights (Yours)

Freedom can be a bad thing,
if it’s the freedom of the strong to push the weak around.

In American politics, few words have a more positive ring than freedom. We bill ourselves as “the land of the free“. We send troops to bring freedom to other countries. (Our invasion of Afghanistan, for example, was Operation Enduring Freedom.) In the Cold War, our side was the Free World. When France opposed our invasion of Iraq, congressional cafeterias renamed french fries as freedom fries.

Our economic system also claims freedom as one of its top virtues. Milton Friedman’s defense of unfettered capitalism was Free to Choose. The low-tax, small-government, regulation-cutting group in the House calls itself the Freedom Caucus.

The word is so popular that it’s hard to challenge. (Try to imagine someone running as the anti-freedom candidate.) But it needs to be challenged, because often what gets justified by the prestige of freedom are policies that favor the strong over the weak. In particular, certain kinds of freedom have to be restricted in order to establish another good thing, rights.

I first started talking about this more than year ago in a historical context: During Reconstruction, the rights of the newly freed slaves only existed as long as the Army was nearby to restrain their former masters from re-enslaving them. When the Army was withdrawn from the South in 1877, black rights began to vanish until by the turn of the century Jim Crow was fully established. In the rhetoric of that era’s Southern whites, this was a freedom issue: The oppressive federal troops had to leave so that the Southern states could be free to govern themselves as they saw fit.

I drew this conclusion:

Your freedom just needs the government to get out of your way, but your rights require government involvement.

This week we got a more topical example: Senate Joint Resolution 34, “Disapproving the Federal Communications Commission’s Rule on Privacy of Customers of Broadband Services”, which recently passed the Senate on a straight party-line vote and the House with a few Republican defections. The Electronic Frontier Foundation summarizes:

Should President Donald Trump sign S.J. Res. 34 into law, big Internet providers will be given new powers to harvest your personal information in extraordinarily creepy ways. They will watch your every action online and create highly personalized and sensitive profiles for the highest bidder. All without your consent. This breaks with the decades long legal tradition that your communications provider is never allowed to monetize your personal information without asking for your permission first.

There has been absolutely no public clamor for this. Nobody has been writing their senators to say, “I wish Comcast could spy on everything I do on the internet, so that they could sell whatever they figure out to people I know nothing about.”

Now that Republicans have a majority of FCC commissioners, similar things have been happening on that level: Last month, the FCC stopped a new data-security rule from taking effect. The rule

would have required ISPs and phone companies to take “reasonable” steps to protect customers’ information—such as Social Security numbers, financial and health information, and Web browsing data—from theft and data breaches.

Again, how many Americans want ISPs to be careless with their personal data? Or to shrug and say, “shit happens” if it gets stolen by hackers? And again, this was a partisan thing: The rule came from the old Obama-dominated FCC and it was blocked by the new Trump-dominated FCC.

Why? Two things are going on here: First and most obvious, special-interest politics: The big ISPs spend way more on lobbying and campaign contributions than you do, so their desire for profit wins out over your desire for privacy.

But what makes this a partisan issue? Democrats can be bought too, so why isn’t corporate money swaying them as well? The answer is that philosophically proposals like this fit a Republican freedom agenda, but not Democratic rights agenda. Freedom is about getting government out of the way. In essence it restores what Founding-era philosophers used to call “the State of Nature“. The State of Nature includes all kinds of wonderful freedoms, but one of less wonderful ones is that the strong are free to push the weak around.

Rights, on the other hand, are airy-fairy things until there is some institutional mechanism to enforce them, and the State of Nature knows nothing of such institutions. In the State of Nature, for example, you may claim a God-given right to criticize the local strongman. But if he is also free to burn your house down, your right doesn’t amount to much. In practice, the weak have no rights until some institution like government restricts the freedom of the strong.

That’s the issue here: Without meddlesome FCC regulations, your right to privacy on the internet is an airy-fairy thing that the ISPs are free to ignore.

In short, freedom is not always your friend. The more freedom big corporations have, the more you will be under their thumb.

The Asterisk* in the Bill of Rights

*except when black

The big debate in the Keith Lamont Scott shooting — the one that started the protests that have been going on in Charlotte since Tuesday — is whether or not Scott had a gun, and if so, whether it was in his hand. The police said he did and it was, though for days they refused to release video of the incident. [1]

The Scott shooting came a few days after police in Tulsa shot and killed another black man, Terrence Crutcher. But the Tulsa case was manslaughter, and a police officer has been charged, largely because Crutcher was unarmed. Even there, though, weaponry is an issue. (The officer claims Crutcher was reaching into his vehicle, and she feared he was reaching for a gun. But the video doesn’t corroborate that story.) Apparently she believed that if he might have been armed, shooting him dead would be an appropriate outcome.

Back in July another black man, Philandro Castile, was shot dead by a police officer during a traffic stop. Castile told the officer there was a gun in the car, which he had a permit to carry. His girlfriend and her 4-year-old daughter were also in the car. The girlfriend claims Castile was reaching for his wallet when the officer shot him four times. So far, there have been no charges.

The NRA, an organization that exists to defend the rights of gun-owners, decided not to comment on the Castile shooting “while the investigation is ongoing”. My Google search for “NRA statement on Keith Lamont Scott” turned up nothing relevant, even though for days the only reason police gave for initiating the encounter was their belief that Scott was armed. (More recently, they elaborated that they also observed him rolling a cigarette which they believed to be marijuana.) North Carolina is an open-carry state, so having a firearm is not in itself a violation. [2]

So if you’re an organization working to make sure the government doesn’t hassle gun-owners exercising their Second Amendment rights, the initially available information in the Scott case would seem to be right up your alley.

Except that Scott is black. The NRA doesn’t do black. I mean, they will gladly let you join and accept your membership fees if you’re black, but don’t count on them to defend your Second Amendment rights. Because, well, what Second Amendment rights? There’s an asterisk on the Second Amendment. The Washington Post‘s Eugene Robinson reviews the facts of the Scott and Castile cases [3] and draws the obvious conclusion: “laws permitting people to carry handguns apparently do not apply to African Americans.”

If all they saw was a man with a gun who got out of a car and back in, what illegal activity did they observe? Why did they “approach the subject” instead of going about their business? Did they have any reason to suspect it was an illegal gun? Are all men carrying guns believed to be carrying guns illegally, or just black men? [4]

Cenk Uygar of The Young Turks noticed something similar, and brings up two other cases: Tamir Rice in Cleveland, the 12-year-old who was killed within seconds of police arriving despite the fact that his “gun” was a toy, and John Crawford III, who police killed in a Walmart near Dayton, because he also was carrying a toy gun which he apparently planned to buy. Like Rice, Crawford was shot within seconds after police arrived. Apparently, blacks with guns are so dangerous that police can’t be bothered to see whether they will drop them, or even to discover whether the guns are real at all.

That police behavior may be questionable, but it’s not obviously racist; maybe they’d be just as trigger-happy towards whites. But Uygar then shows three videos of cops patiently having conversations with uncooperative armed white men, none of whom wind up dead. In the last one, the man verbally abuses three policemen until they back away and leave him with his weapon. Uygar comments:

Yeah, that happens to black guys all the time in this country. Where they laugh at cops in their face and say, “See ya, tough guy. Walk away.” And the cops go, “OK, yes sir. You’re right, sir. You have constitutional rights, sir. Of course I’ll walk away.” … That happens all the time. No one, no one, I don’t care how right-wing you are, you don’t believe that. You know what they would have done if he was black.

Not that those uncooperative armed white men should be dead, but it shows that when white lives are at stake, police can be patient, carefully establish what is going on, and attempt to deescalate the confrontation. In one of Uygar’s examples, a clearly irrational white man goes to his car, gets his gun, and begins waving it in all directions, including pointing it at police. They attempt to talk to him, and when that doesn’t work, they fire one shot into his leg to drop him, rather than the 16 shots fired into Laquan McDonald in 15 seconds. He lives.

That’s why the movement is called Black Lives Matter. That guy’s life mattered to those cops. They didn’t want to end his life. They were careful with it. So we’re asking you to also be careful with black lives just as much.

The Second Amendment isn’t the only one with an asterisk: The Fourth Amendment has one too. [5] Without the asterisk, it reads like this:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So when they talk about “probable cause” on NCIS, that’s not just some criminal-coddling nonsense made up by an activist liberal judge; it’s right there in the effing Constitution. The Constitution guarantees your right to be secure in your person, unless police have probable cause to believe you are involved in a crime.

Or unless you’re black.

Politico reports:

In a pre-taped interview on Fox News scheduled to air Wednesday night, Trump was asked by an audience member what he would do to address “violence in the black community” and “black-on-black crime.” Trump responded by proposing that “stop-and-frisk” policing, in which an officer is empowered to stop an individual and frisk them for weapons or any other illegal contraband, be adopted nationwide.

If a weapon is found, it is confiscated. The next day Trump clarified, saying that he only meant Chicago.

I think Chicago needs stop-and-frisk,” Trump said. “Now, people can criticize me for that or people can say whatever they want, but they asked me about Chicago, and I think stop-and-frisk, with good, strong, you know, good, strong law and order. But you have to do something. It can’t continue the way it’s going.”

Trump says nothing specific about race, but does anyone really believe that he wants police to stand outside of Water Tower Place and frisk upscale white shoppers for weapons? Will they cruise the Magnificent Mile during lunch hour, stopping white lawyers and bankers at random to see if they have any cocaine? (Sometimes they do.) Of course not. What will substitute for “probable cause” is that you are a young black man [6] wandering around in a poor, majority-black neighborhood.

You still might claim that the bias here is related to class, not race. But seriously, can you picture police cruising the trailer parks of Louisiana, frisking white good old boys and confiscating guns from Duck Dynasty types? Could that ever happen?

Of course not. The NRA would throw a fit.

[1] Saturday they finally did. The New York Times assessment: “It appeared from the two angles that he had nothing in his right hand. It was unclear what, if anything, Mr. Scott, who was right-handed, had in his left hand.” In the video, you can hear police repeatedly telling Scott to drop the gun. But in another video, you can hear Scott’s wife protesting that he didn’t have a weapon.

[2] It turns out that Scott didn’t have a right to carry a firearm, since he had a gun-related prior offense. But it’s almost certain police didn’t know that when they approached him.

[3] As they were known on Thursday, before the marijuana claim about Scott.

[4] Robinson’s conclusion is less compelling if the marijuana claim is true. But even then, we’re left with the question: What public danger required escalating the encounter to the point of death?

[5] If I wanted to expand the scope of this article, we could also talk about the “except when Muslim” asterisk on the First Amendment. Americans have a right to practice their religion, except when they want to build a mosque somewhere and Christians object. And the whole gay-marriage issue revolved around the “except when gay” asterisk on the equal-protection clause of the Fourteenth Amendment.

[6] In the New York City example Trump cited, Latinos were also disproportionately targeted.

Why You Should Care about Felon Voting Rights

Something important happened in Virginia this week: Governor Terry McAuliffe restored voting rights to Virginia felons who have served their time and completed the subsequent probations. In the age of mass incarceration, that’s a lot of people: more than 200,000 in Virginia alone. Nationally, an estimated 5.85 million people have lost their voting rights because of felony convictions. That’s bigger than the winning margin in every recent presidential election other than 2008.

But the question that probably leaps to mind is: Why would changing that be a good thing? The class of felons includes a lot of bad people, so why do we want more bad people picking our leaders? But felon voting rights are important for both micro and macro reasons.

The individual ex-con. The micro-level reason is that we want an ex-con to have a path back into normal life. (John Oliver did a great segment on this a few months ago. The ex-con’s difficulty re-entering society also made it into pop culture through the recent hit movie Ant-Man.) The old-fashioned notion was that by the time a prisoner got released, he had “paid his debt to society” and everything was square now. But in reality, many ex-cons can only hope for a second-class citizenship, which permanent disenfranchisement symbolizes. And if you can never hope for a normal life, returning to crime becomes more tempting.

Decades ago, you might start over by taking the Jean Valjean approach: Move far away and keep quiet about your criminal history. But in this era of universal databases, the relentless Inspector Javert has been automated: Your past is bound to catch up with you.

Large-scale voter suppression. The macro-level reason is that our criminal justice system is biased, so disenfranchising felons is a way to diminish the voting power of blacks, the poor, and other over-policed segments of society.

The racial difference might be defended if it were solely the result of blacks committing more crimes than whites, but that’s far from the whole story. An ACLU report says:

[R]acial disparities result from disparate treatment of Blacks at every stage of the criminal justice system, including stops and searches, arrests, prosecutions and plea negotiations, trials, and sentencing. Race matters at all phases and aspects of the criminal process, including the quality of representation, the charging phase, and the availability of plea agreements, each of which impact whether juvenile and adult defendants face a potential [life without parole] sentence. In addition, racial disparities in sentencing can result from theoretically “race neutral” sentencing policies that have significant disparate racial effects, particularly in the cases of habitual offender laws and many drug policies, including mandatory minimums, school zone drug enhancements, and federal policies adopted by Congress in 1986 and 1996 that at the time established a 100-to-one sentencing disparity between crack and powder cocaine offenses.

Racial disparities in sentencing also result in part from prosecutors’ decisions at the initial charging stage, suggesting that racial bias affects the exercise of prosecutorial discretion with respect to certain crimes. One study found that Black defendants face significantly more severe charges than whites, even after controlling for characteristics of the offense, criminal history, defense counsel type, age and education of the offender, and crime rates and economic characteristics of the jurisdiction.

Governor McAuliffe invoked the racial issue by comparing felon disenfranchisement to the poll tax, but I think a better comparison is to another Jim Crow relic: literacy tests. The literacy test had a similarly virtuous rationale: Do you want illiterate people picking our leaders? But it was applied in biased ways, and combined with other systemic discrimination (i.e., separate-and-unequal school systems) to keep blacks from voting.

Partisan politics. As so often happens these days, what ought to be a simple good-government argument has gotten swamped by partisan power politics. Blacks overwhelmingly vote Democratic, so Republicans are against anything that enfranchises more of them. (This has the cycle-completing effect of motivating more blacks to vote Democratic.) And so, Kentucky’s Democratic Governor Steven Beshear issued a similar order as he was leaving office, but the incoming Republican Governor Matt Bevin rescinded it before it could take effect. Felon disenfranchisement effects about 1 in 19 Kentuckians, but 1 in 6 blacks.

As Mike Dukakis learned when he became the Willie Horton candidate in 1988, felons (especially black ones) make for bad political optics. And that puts governors on the horns of a dilemma: Like Gov. Besmear, they can wait until they’re leaving office to restore voting rights, when critics can claim that they didn’t dare do it until they were slinking out the door. Or, like Gov. McAuliffe, they can restore rights earlier in their terms, and face the criticism that they are trying to remake their own electorate.

Optics or partisanship aside, though, it’s the right thing to do. We’ll have a hard time tackling the racial biases in our justice system as long as they continue to give one side an advantage on election day.

The Apple/FBI question is harder than it looks

Nothing about the Apple vs. the FBI showdown is as clear-cut as it initially appears.

There’s a way of telling the story that makes Apple sound completely unreasonable, and could even justify Donald Trump’s call to boycott the company: The FBI needs to get information off the iPhone of one of the San Bernardino terrorists (Syed Rizwan Farook), so that it can check whether there are additional conspirators or direct operational links to ISIS. The only damage in the FBI having that information is to the privacy of a dead terrorist. But Apple is fighting a court order that instructs the company to help the FBI, in a case that could well wind up at the Supreme Court. Senator Tom Cotton draws this conclusion:

Apple chose to protect a dead ISIS terrorist’s p‎rivacy over the security of the American people.

Sounds pretty bad. But that story falls apart in a bunch of ways. First, CNN’s national security analyst Peter Bergen argues that the information on that particular phone is probably not all that important.

What might be learned from Farook’s iPhone? Of course, we don’t know, but it’s likely that it wouldn’t be much beyond what we already know from the couple’s Facebook postings, their Verizon phone account, their computers seized by police, the evidence found at their apartment complex and the fulsome confession of their friend Enrique Marquez, who allegedly provided them with the rifles used in their massacre and also allegedly knew of their plans to commit a terrorist attack as early as 2012.

No evidence has emerged that Farook and his wife had any formal connection to a terrorist organization, and the plot involved only the couple and the alleged connivance of Marquez. What might be found on Farook’s iPhone therefore is more than likely simply only some additional details to buttress the overall account of what we know already.

Bergen thinks the FBI is pushing this case purely to establish a precedent for future cases. In public-relations terms, Farook is the least sympathetic target the FBI is likely to get, so why not have the public battle here?

He notes that Apple’s side of the argument is not so clear-cut either: Apple has cracked iPhones for the government many times in the past, and responds to court orders concerning iPhone data that has been backed up to iCloud. So what great principle are they standing on?

These revelations suggest the possibility that the facts of this particular case aren’t as important as the larger principles at stake and that both Apple and the U.S. government are using the San Bernardino case as something of a test of the question: Should tech companies give the FBI any kind of permanent backdoor?

And then things get technical: What’s different about this iPhone (as opposed to the ones Apple has previously made available to the government) is that it’s a more recent version, the 5C, whose security features Apple touted. So Douglas Rushkoff sums up what the FBI wants of Apple:

They’re saying, “We want you to reveal that the promise you made about this phone turns out not to be true.”

In an open letter to its customers, Apple emphasizes that it isn’t breaking faith with them:

For many years, we have used encryption to protect our customers’ personal data because we believe it’s the only way to keep their information safe. We have even put that data out of our own reach, because we believe the contents of your iPhone are none of our business.

Summing up a few of the technical details: Apple doesn’t have the information on Farook’s iPhone, doesn’t have his passcode, and doesn’t have a software tool that recovers the data without the passcode. What, then, could Apple do for the FBI? One security feature of recent iPhones is that the data on an encrypted phone is wiped if an incorrect passcode is entered 10 times in a row. This prevents breaking into a phone by what is called a “brute force” approach, where you connect the phone to another computer that just runs through all possible passcodes. (If we’re talking about the typical 4-digit iPhone passcode, that’s only 10,000 possibilities, which wouldn’t take very long. I’ve seen estimates varying from half an hour to an hour.)

What the court has ordered Apple to do is provide the FBI with what is basically a software patch to circumvent that auto-erase feature. Once they have that, the FBI can crack the phone.

Apple’s response is that it has never written such software, and it doesn’t want to.

The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.

In other words, there won’t be any way to un-ring that bell: Once Apple has software that circumvents its security features, what happens to that software after the FBI has Farook’s data? At a minimum, it’s available to court orders in future cases. And if it’s available to American court orders, why couldn’t it be available to Chinese court orders? Or Iranian court orders? The principle that protects a terrorist today could protect a dissident tomorrow. And if Apple doesn’t stand on a principle, it becomes a kind of court itself, deciding case-by-case which governments deserve its help in which situations.

Worse yet, what happens to the security-circumventing software after this case? What if Apple’s internal security fails, and the software (or enough hints to allow some hacker to reproduce the software) gets out? It could even wind up in the hands of terrorists who decrypt information that helps them plan some future attack.

That’s how you wind up with a story where Apple is the hero: They’re bravely fighting to maintain our privacy. That’s how Edward Snowden put it in a tweet:

The is creating a world where citizens rely on to defend their rights, rather than the other way around.

But Douglas Rushkoff is skeptical of that story too.

It would be a mistake for people to think of this as “The People” against government security. That’s a ruse. Really, it’s the world’s biggest corporation versus the world’s most powerful military. That’s what we’re looking at.

And while I do believe that we people should defend our right to privacy, I don’t see the individual’s right to military-grade encryption. I see Visa companies, or Bank of America’s need to use it on my behalf, if Chinese hackers are using it to buy condoms on my Visa card…

For me to have something that the full focused attention of the Pentagon – which I’m sure is involved – and the FBI… To have something that they can’t break into… Imagine a real-world metaphor for that. “Oh, you’ve got a lock in your house that’s so powerful that if they brought the freakin’ army, and tanks, they couldn’t get in?”

There is certainly an economic angle here: The big tech companies — Apple, Google, Microsoft, etc. — were deeply embarrassed when Snowden revealed how complicit they all were in the NSA’s legally and morally dubious snooping on people who had done nothing to draw suspicion to themselves.

In that sense, Apple’s position (supported by Google and some other tech companies) is a sort of repentance: We have sinned in the past, but we have seen the light now and will sin no more. But the issue isn’t moral, it’s market-based: We need customers to believe we’re on their side, rather than the side of the government that wants to spy on them.

And finally, there’s a technological-inevitability angle on this: If more-or-less unbreakable encryption is possible at a price people are willing to pay, someone will provide it. (In response to Rushkoff: I don’t really need a lock and a door that tanks couldn’t break through, but if I could cheaply get one, it might be tempting.) If the U.S. government won’t let American companies provide those secure products, then they’ll be made in other countries.

So the United States can’t really stop that industry, it can just give it to some other country.

So that’s where I end up: siding with Apple in this specific case, but not making a hero out of Apple CEO Tim Cook. Right now, market forces put Apple on the side of personal privacy. Meanwhile, the FBI is trying to order the tide back out to sea. Law enforcement would do better to start adjusting to the future now.

DISCLAIMER: I don’t think this is affecting my view — I believe I’d feel the same way if Microsoft were taking a similar stand — but I should mention that I own Apple stock, as well as various i-gadgets. However, I am not currently using my iPhone’s encryption capabilities to hide any illegal activities.

Themes of 2015: Religion, Morality, and the Law

All year, gay rights has had to compete with claims of “religious freedom”. I should have predicted that: If you look back in American history, bigotry has always hidden behind religion.

As 2015 began, same-sex marriage was clearly headed to the Supreme Court. The ruling in Obergefell v Hodges wouldn’t come until June, but both sides were making their final push to bend public opinion in their favor. So in February, I wrote “When Hate Stays in the Closet” to answer what seemed to me to be the two most reasonable-sounding arguments against same-sex marriage. (A consistent gripe I have about the national debate is that all sides tend to focus on the most hateful and unreasonable arguments made against them, and leave the more reasonable ones untouched.)

On April 6, “Religious Freedom: Colorado’s sensible middle way” explained the principles involved in the various cases involving bakers, photographers, and other folks who felt their religious convictions should allow them to not serve gay couples who were planning their weddings. The key principle, which was already embedded in First Amendment cases and didn’t need any new religious-freedom laws to enforce it, was:

a business open to the public should be (and I believe is, without any new religious-freedom laws) free to refuse to endorse an idea, but it should not be free to refuse service to people merely because they practice or promote that idea.

So if a baker refuses to put “Gay Marriage Rocks” on a cake, that’s his First Amendment right. But if the shop sells wedding cakes to the public, it isn’t free to refuse a wedding cake to a same-sex couple.

I continued on the religious-freedom theme in May with “Turning the Theocracy Against Itself“, making the point that the new religious-freedom laws were clearly intended only for conservative Christians, and predicting that

If “religious freedom” laws end up giving atheists and Muslims the same consideration Christians are claiming, Christians will repeal those laws themselves.

For example: Inscribing “In God We Trust” on the money forces atheists either to do without the convenience of a national currency, or to hand out pieces of paper that denounce their own religious views. How can any non-sectarian religious-freedom law not ban that?

In May, I gave my best explanation of why I think bans on same-sex marriage are unconstitutional, even though the people who ratified the 14th Amendment probably never envisioned protecting same-sex couples.

In current law, the [legal] roles of husband and wife are virtually interchangeable. … So the claim that gays and lesbians want to “redefine marriage” has it exactly backwards. During the last century-and-a-half, marriage has already been redefined. And in marriage as it exists today — rather than during the Revolution or the Civil War — what’s our justification for refusing its advantages to same-sex couples?

In short, the Constitution and the 14th Amendment haven’t changed, but the world has changed around them. Nor is the Supreme Court being asked to “redefine marriage” or to pass a “judicial law” legalizing it. That’s not what a court is for. But we do need the Court to tell us what “equal protection” is going to mean in the context of today’s marriage laws.

Also in May/June, the Josh Duggar molestation scandal broke. For reasons I can’t recall, I resisted devoting an article to it, but a segment of a weekly summary was of article length and scope, concluding:

Morality, as I conceive it, is about how we’re all going to live together on the Earth without making each other miserable. If you picture it instead as a private interaction between yourself and the Divine Lawmaker, I think you’ve still got some growing up to do.

In early June, the Bruce/Caitlin Jenner story suddenly put transgender issues in the headlines. I had never thought about the topic seriously before (and it showed; ever since, commenters have been educating me about how not to inadvertently give offense). But rather than mask my own squeamishness, I decided to explore it to see what insight it could give me into the people who saw the celebration of Jenner as a “snapshot of just how corrupt, how morally corrupt, how morally bent, how morally twisted, how morally confused, how morally bankrupt we have become”. In “What’s So Scary About Caitlyn Jenner?” I announced an abstract principle that I should probably break out into its own article sometime: Everything you thought was a category is actually a continuum.

I think the unifying principle of social conservatism is the desire to believe that the categories in our heads — male/female, black/white, good/evil, friend/enemy, and so on — correspond to real and solid divisions in the external world. Social conservatives increasingly retreat into an information bubble as it becomes more and more obvious that what they want to believe simply is not true. Binary categories are just kludges evolution has provided to help us simplify a world too complex for our brains to fully grasp.

When the Obergefell decision arrived in June and same-sex marriage became legal nationwide, I was pleased by the result but (once again) disappointed in Justice Kennedy’s reasoning.

Justice Kennedy got the right result for the wrong reasons, and that will eventually cost us.  Not in other marriage cases – that’s over, just like everybody says. But Kennedy’s soaring rhetoric about the dignity of gay relationships wasn’t supported by a sound legal framework that we can use in, say, employment equality cases.

By founding his decision on a vague “right to marry” that he scries out of the word liberty in the 14th Amendment, Kennedy fed conservative rhetoric about “redefining marriage” and “judicial activism”. In the long run, I believe the reasoning that will stand is the equal-protection argument above, which I learned by reading the lower-court decisions.

After Obergefell, opponents of same-sex marriage largely went into denial, claiming that the other branches of government (or some popular uprising) could still stop this abomination (which has been happening in Massachusetts for more than a decade with no visible ill effects).

The opponents hate to be called bigots, and argue that their opposition is based on religion, not hatred. So it’s completely different than say, the opposition to interracial marriage in the 1960s. In order to make that argument, you have to be completely ignorant of history, so I tried to fix that with a history lesson in “You Don’t Have to Hate Anybody to be a Bigot” (the year’s most popular new post). After reviewing the religious arguments that have justified segregation and slavery, I concluded:

There’s nothing new about nice, salt-of-the-Earth people who sincerely believe that certain other people are undeserving of empathy or respect or fair treatment. There’s nothing new about those beliefs being expressed and justified in religious terms, or put forward by ministers and theologians.

Quite the opposite, that’s the normal situation.

In other words, it is totally typical for Americans to hide their disregard for their neighbor behind their love of God. Today’s Mike Huckabees and Kim Davises are heirs to a long tradition of religiously justified bigotry, even if they would rather not claim that legacy.

In his Obergefell dissent, Chief Justice Roberts raised the specter of polygamy as the next step down the slippery slope. In July, I examined that possibility, finding that (A) it’s not nearly so simple a step as Roberts implied, and (B) it’s also not the horror that he imagined.

By September, we had the Kim Davis saga, which I covered in “Is Kim Davis a Martyr?” I describe the standard of purity Davis  and others want to apply here — that Christians shouldn’t involve themselves in other people’s sins in any way — as “a ‘sincerely held belief’ that was invented solely for this purpose.” I see no reason to take it seriously.

As the year ends, the push to define religious freedom broadly — for conservative Christians, if no one else — continues, accompanied by the self-justifying fantasy that American Christians are persecuted. We’ll undoubtedly see more states pass laws that legalize discrimination against gays, and since the male-Catholic-conservative majority on the Supreme Court (Roberts, Scalia, Thomas, Alito, Kennedy) shows no signs of grasping the problem yet, it wouldn’t surprise me if they extend the religious-freedom principles in the Hobby Lobby decision even further in 2016.

I don’t see this trend stopping until unpopular religious groups start claiming their equal rights under these laws and interpretations, and forcing conservative judges to explain why they don’t deserve the same consideration Christians get. When those laws start protecting the broadly defined religious freedom of Muslims and pagans and atheists, conservative Christians will lead the repeal effort themselves.

Small-government Freedom vs. Big-government Rights

The issues of Reconstruction continue to animate today’s political rhetoric.


One of the central words in conservative rhetoric is freedom. The far-right members of the House are the Freedom Caucus. Nate Silver did the math, and found that the 2012 Republican platform mentioned freedom four times more often than the Democratic platform. At times they even push it to absurd lengths: To chide France for not supporting the invasion of Iraq, House Republicans renamed their cafeteria’s french fries “freedom fries“.

Freedom is so universally cited by conservatives that liberals often satirically suggest the explanation “because freedom” for any conservative proposal that doesn’t add up. (Wonkette: “Ben Carson will defund commie liberal colleges, because freedom.” Josh Marshall has used “Because Freedom” as a satirical headline at least twice.) Freedom, they’re suggesting, is just a buzzword conservatives throw out whenever they have no substantive justification for what they want to do.

Its not that Democrats don’t like freedom, but they tend to talk about particular freedoms (freedom of choice) rather than capital-F Freedom as an abstract entity. They’re more likely to talk about rights: voting rights, abortion rights, civil rights, and so on.

There are, of course, a large number of counter-examples in both directions. (Gun rights, for example, or FDR’s “freedom from want” and “freedom from fear”. [1]) But in general, the parties are talking about two subtly different concepts: Freedom, particularly the way conservatives use it, is inextricably linked to small government: Freedom means the government doesn’t get in your way.

Rights on the other hand, only exist if society provides some method of enforcement. Without a court you can appeal to when your rights are violated, and ultimately, without a police force or army that will enforce that court’s judgments, you don’t have any rights. Black children, for example, didn’t begin to acquire a right to an equal education until President Eisenhower sent the 101st Airborne Division to Little Rock. Rights require some kind of government to enforce them, and if the forces that want to violate your rights are strong, you need a really big government. [2]

A simple example: If you want to be able to buy a little marijuana and smoke it without fear of narcs busting down your door, you want freedom. But if you want to be sure that what you buy really is marijuana, that no toxic or addictive chemicals have been added to it, or that the seller won’t just bash you over the head and take your money without giving you anything, then you’re looking for your rights as a consumer. Your freedom just needs the government to get out of your way, but your rights require government involvement. [3]

The relative value of freedom vs rights depends in large part on how much power you have. If you are wealthy, well-connected, or otherwise privileged, then there are all kinds of things you could do, if government would just stay out of your way. But if you are poor, then the barriers you face have more to do with your lack of resources than with government regulations.

Powerful groups can defend their own prerogatives whether they have government-enforced rights or not. Nobody has to force lunch counters to serve whites; no parent has to go to court to make the local public school offer courses in English; Christian children aren’t pressured to say “under no God” in the Pledge of Allegiance; and men in the workplace don’t have to wonder whether a glass ceiling is holding them down. But the rights of less powerful groups depend on government.

In the course of a typical workday, a woman who makes fries at McDonalds isn’t all that constrained by the government. Sure, taxes are taken out of her paycheck; she has to keep her hair covered while preparing food and wash her hands after using the bathroom; and she faces the threat of jail if she skims from the till, but the whims of her shift manager are a far bigger source of oppression than all the pencil-pushers in Washington.

On the other hand, the guy who owns her McDonalds franchise faces constant assaults on his freedom. He can’t pay his workers the $5 an hour he thinks they deserve, even if they’re so desperate they would have to take it. He can’t demand that they work in unsafe conditions. He can’t extract sexual favors from them. His kitchen has to face health inspectors. He has to make sure the trash is properly disposed of. Zoning keeps him from expanding to the new location he wants. And on and on and on. Everywhere he looks, there’s a regulation or a bureaucrat or a potential lawsuit. Tyranny, that’s what it is.

Several of those restrictions on his freedom are what the government has to do to establish the woman’s rights. She has a right to a basic level of respect and fair treatment from her employer, and (without government) she lacks the power to make him respect those rights.

That’s why American political rhetoric about freedom has such a bizarre history: a lot of it comes from slave owners. “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?” Patrick Henry demanded in the speech that ends with his memorable: “Give me liberty or give me death!” But he died owning 65 slaves. James Madison enshrined freedom of speech and freedom of religion in the Bill or Rights, but owned over 100 slaves. Thomas Jefferson is said to have owned 600 slaves in the course of his life, and a sizable chunk of his surviving descendants were fathered on a slave.

Confederate rhetoric was full of freedom, and the corresponding threat of “tyranny” or “slavery” (for white Southerners) if their cause did not prevail. In the first line of his famous speech “Slavery a Positive Good“, Senator John Calhoun warned that if the South didn’t respond to even the slightest encroachments on the institution of slavery, Southern whites were “prepared to become slaves”. In his inaugural address, Confederate President Jefferson Davis invoked “the consent of the governed” to justify a government that disenfranchised not only all its black subjects, but many poor whites as well. “All we ask is to be left alone,” said Davis. Left alone, that is, to enslave others.

The things powerful people want to be left alone to do have changed over the years: Now they want to be able to pollute rivers, get miners killed, refuse to serve gays and lesbians, use the public schools to promote their religion, put obstacles in front of minorities voting, and so on. But the basic rhetoric has stayed the same: If you just keep the government out of everybody’s way, then we’ll have freedom.

And it’s true: We will have freedom, but we won’t have any rights that more powerful people want to take away.

To see these concepts worked out in the most extreme way, pick up Gregory Downs’ recent book After Appomattox: Military occupation and the ends of war. It tells the story of the post-surrender occupation of the South by the U.S. Army, and the official state of war that continued until the last Confederate state had its representatives seated in Congress in 1871.

As I’ve described several times before, the Reconstruction Era is the unspoken reference behind a lot of the current conservative usage of tyranny, particularly as it relates to tyranny being overthrown by armed civilians. The tyranny in question was the military occupation of the South, which was absolutely necessary to guarantee any rights at all to the newly freed slaves. A terrorist insurgency by Confederate veterans eventually made the occupation more costly than the North could stomach, and black rights all but vanished after the troops were withdrawn, leading to the Jim Crow era.

Downs describes the philosophical shock that many Northerners suffered when they realized that slavery couldn’t be eliminated just by issuing proclamations or passing Constitutional amendments.

Wartime emancipation and the postsurrender struggle against slavery forced Northerners to examine the question of whether people could be free without the intervention of the government.

The law might say one thing, but the facts on the ground said something else.

[S]lavery endured on the ground well after the end of fighting. Of the nearly 4 million slaves in the United States in 1860, the vast majority were still held in bondage as the Confederate armies surrendered.

Slaves only became free when troops were around to prevent the masters re-asserting their ownership.

Ambrose Douglass, held a slave in North Carolina, captured the relationship between emancipation and the soldiers’ presence. In his area, “I guess we musta celebrated ‘mancipation about twelve time … Every time a bunch of No’thern sojers would come through they would tell us we was free and we’d begin celebratin’. Before we would get through somebody else would tell us to go back to work, and we would go.”

Many whites saw the same reality:

Arkansas’ U.S attorney similarly wrote that “he who stands between the late master and the freedmen for their protection, must be backed by the power of the bayonet.”

To the former Confederate, though, “bayonet rule” looked more like this:

Northerners knew they wanted to end slavery, but had no clear notion of what freedom would mean for the ex-slaves.

As freedpeople taught officers about the enduring power of slavery, soldiers and ex-slaves together developed the notion that freedom meant accessible rights. … [E]x-slaves found it easy to invoke rights as the measure of what it meant not to be enslaved. As slaves, they had virtually no rights they could defend in court. Looking to the experience of free people around them, they defined freedom in part as the opportunity to have these basic rights — marriage, control of children, property ownership, travel, and contract — protected by the government. … Instead of a march to freedom, with its connotations of separation from the state, freedpeople and soldiers described a walk toward government.

In particular, black men’s right to vote was established on paper by the 15th Amendment. But in reality, it only existed only where federal troops guarded the polling places. When the troops were withdrawn, Confederate veterans terrorized blacks who tried to vote. Ultimately, new state governments elected almost entirely with white votes disenfranchised blacks almost entirely until the federal government re-inserted itself into the situation in the 1960s through the Voting Rights Act.

Downs draws the conclusion:

[L]ooking at the story after Appomattox forces us to confront the dismaying, necessary fact that our own contemporary freedom and civil rights are in some ways the products of war powers. Even the rights we cherish are often fashioned by coercion.

So bear that in mind the next time you hear a conservative politician wax eloquent for freedom and against big government. How many of your rights will have to go away in order to allow the powerful people he represents the freedom he wants them to have?

[1] The confusion is amplified by two rhetorical back doors. In general “freedom from X” is a roundabout synonym for “the right to not-X”. So “freedom from want” includes a right to a minimum level of food and shelter. Conversely, the “right to be let alone” is a fairly broad description of what I am calling “freedom”.

[2] One popular conservative trope is that our rights come from God, not from the government. Ted Cruz said:

What is the promise of America? The idea that, the revolutionary idea, that this country was founded upon, which was our rights, they don’t come from man. They come from God Almighty. And it’s the purpose of the Constitution … to serve as chains, to bind the mischief of government.

While an appeal to the Declaration of Independence’s soaring rhetoric “All men … are endowed by their Creator with certain inalienable rights” is inspiring, it is also ineffective, because God is notoriously poor at policing rights-violations in a timely manner. His mills, after all, grind slowly.

[3] In this case, as in many others, the two notions are in opposition. What about the seller’s freedom to lie to you, to cheat you, or to bash you over the head? Your rights depend on restricting his freedom.

Justice In Ferguson

Darren Wilson gets off, but the Ferguson police and courts don’t.

Through the late summer and into the fall, no issue in America was more polarizing than the shooting of Michael Brown and the demonstrations of public anger that it sparked. Objective reality seemed to have vanished. The “facts” you saw or believed or told other people depended almost entirely on your prior commitments, what news sources you trusted, and who your friends were.

In Ferguson’s African-American community, everybody knew somebody who knew somebody who had seen Brown gunned down in cold blood, his hands up, trying to surrender. Meanwhile the police (and later the prosecutor) were doing Darren Wilson’s public relations, selectively leaking whatever evidence supported Wilson’s story or made Michael Brown look like a thug.

When the prosecutor organized a defense of Wilson in front of the grand jury, the result — no indictment — seemed predetermined and changed very few minds. If you had believed Wilson from the start, you felt vindicated. But if not, the Brown’s murder was just one more example of police misconduct swept under the rug.

The federal Department of Justice was uniquely situated to bridge the gap. It had the direct access to the witnesses and evidence that the community lacked, and the desire to find the truth that the police and prosecutor seemed to lack.

Wednesday, the Department of Justice released two reports, one specifically about the Brown shooting and the other examining the general state of policing in Ferguson. Taken as a whole, the two reports fit the narrative of neither side. But I heard a convincing ring of truth in them.

Policing in Ferguson. You get the clearest picture if you read the general report first, because the community’s response to the Brown shooting makes no sense until you understand its long-term relationship to the FPD.

The essence of the problem in Ferguson can be summarized in one sentence:

Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.

In other words, the City of Ferguson relies on fines for a major portion of its revenue. It regularly budgets for fines to increase, and it pressures the police department to meet its budget goals by finding more offenses it can cite citizens for. Its municipal court is an opaque, inflexible system that is hard to navigate, particularly if you are poor and/or lack transportation.

As a result, a minor initial offense can snowball into an endless and expensive series of interactions if a citizen fails to appear in court when expected (whether notification of a court date has been received or not) or fails to pay the full fine assessed (regardless of the citizen’s ability to pay).

In short, the Ferguson justice system is predatory and the citizens are the prey.

The report illustrates with many examples — most taken from the FPD’s own files — the following series of abuses:

  • Police regularly stop citizens without probable cause of any wrong-doing.
  • They demand that citizens submit to unjustified searches of their persons or vehicles.
  • Refusal of unlawful commands or attempts to claim constitutional rights are met with punitive arrests and/or violence.
  • While in custody, citizens are controlled by violence and threats of violence. For example, protesting the basis of an arrest, passively refusing to cooperate, or verbally abusing an officer frequently results in being shot with a taser.
  • The FPD ignores its own system for tracking officers’ use of force. When supervisors do submit a report on a use of force, typically only the arrest report written by the officer in question is consulted, even if that report contains internal contradictions.
  • Complaints from the public are discouraged, are frequently ignored, and can result in punitive investigations of the complaining citizens.
  • Officers are rated and promoted based largely on their “productivity”, i.e., the number of revenue-producing citations they write. Citizen complaints or repeated use of force does not significantly affect an officer’s career.

The damage done by a rogue police force can be mitigated by the courts, if the courts are motivated to pursue justice. However,

The Ferguson municipal court handles most charges brought by FPD, and does so not with the primary goal of administering justice or protecting the rights of the accused, but of maximizing revenue.

The municipal court, in other words, is part of the predatory system.

Racism. The report describes a general pattern of abusing the powerless, with sections on the mentally ill or mentally handicapped (whose inability to comprehend or respond to police commands is often taken as resistance and met with violence), and students (the officers assigned to Ferguson high schools escalate situations towards arrests — more revenue! — rather than trying to establish and maintain peace).

But the largest of these sections focuses on racism. The FPD, the city government, and the municipal court are overwhelming staffed by whites, in a city that is two-thirds black. Blacks are disproportionately the prey of the municipal justice system, and the more extreme the police action, the more likely the victim is to be black. For example,

The department’s own records demonstrate that, as with other types of force, canine officers use dogs out of proportion to the threat posed by the people they encounter, leaving serious puncture wounds to nonviolent offenders, some of them children. Furthermore, in every canine bite incident for which racial information is available, the subject was African American. This disparity, in combination with the decision to deploy canines in circumstances with a seemingly low objective threat, suggests that race may play an impermissible role in officers’ decisions to deploy canines.

The more an officer’s discretion is involved in an arrest, the more likely the arrested citizen is black. For example,

With respect to speeding offenses for all roads, African Americans account for 72% of citations based on radar or laser, but 80% of citations based on other or unspecified methods. Thus, as evaluated by radar, African Americans violate the law at lower rates than as evaluated by FPD officers.

Another factor was the practice of police and court employees “fixing” traffic tickets and other municipal citations for friends and relatives. Given the racial composition of the city’s staff, the recipients of these favors were probably overwhelmingly white.

In addition to statistics, the report culled a number of racist emails from the police and court systems. Like:

A November 2008 email stated that President Barack Obama would not be President for very long because “what black man holds a steady job for four years.”

Justice Department investigators could find no record of recipients objecting to such emails or of superiors reprimanding the senders. Often such offensive jokes were forwarded to others.

Reading the report, I was left with an impression not of Klan-like, get-the-niggers racism, but of widespread racial stereotyping that affected decisions at all levels. Being a young black male was in itself seen as probable cause of wrong-doing that police should look into. Uncooperative blacks were seen as inherently violent and dangerous, justifying police violence to control them. Violence directed at blacks was considered a less serious matter than similar incidents against whites* would be. The overall predatory nature of the system was more easily ignored or rationalized because its victims were mostly black.

Michael Brown. When Darren Wilson killed Michael Brown in broad daylight on a city street in front of many witnesses, the African-American community saw a chance for some good to come of this tragedy: Maybe finally the police had done something so outrageous that it couldn’t be covered up. Maybe finally the world would have to notice the abusive system they lived in, and a policeman would have to pay.

It is no wonder, then, that the community was quick to believe the worst about Darren Wilson. Accounts in which he gunned down Brown for no real reason fit very well with the accounts they heard every day from their friends and neighbors: of dogs set on young blacks for no real reason, or tasers used when blacks mouthed off or just didn’t move fast enough to suit police.

Likewise, it is no wonder that witnesses saw what they expected to see, that they exaggerated what they did see, or that they stayed away from TV cameras if what they saw supported Wilson’s account.

The Justice Department’s report on the Brown shooting recommends no charges against Darren Wilson. It goes through the evidence in great detail, and concludes not that everything happened the way Wilson said, but that it could have happened that way. (In Mythbusters terms, Wilson’s story is “plausible”.)

Wilson’s account goes like this: He tried to stop Brown on suspicion of a petty theft (of a handful of small cigars from a convenience store). Brown punched him and reached into his vehicle to struggle for Wilson’s gun. Wilson fired the gun once while inside the car, causing Brown to run away. Wilson pursued, and Brown turned to charge him. Wilson started shooting again, but Brown did not stop until Wilson had fired the fatal shot to the top of Brown’s head.

None of the physical evidence contradicts that story. Some eye-witness testimony supports it. The testimony that contradicts Wilson would not impress a jury, because there are no witnesses who

  • contradict Wilson
  • tell a story consistent with the physical evidence
  • have told the same story consistently to all investigators.

So the Justice Department concludes that prosecuting Wilson would be a waste of time.

The separate accounts of the various witnesses paint a picture of more than just the Brown shooting: a community that wants this shooting to be what it needs rather than what the incident was. Again and again, witnesses against Wilson confess that they have mixed the part of the event they saw with what they have heard on the street. Witnesses supporting Wilson are reluctant to come forward, either because they want Wilson convicted or because they don’t want to be known in the community as the witness who got Wilson off. Some just don’t talk and we don’t know why.

Putting the two reports together, I am left with questions about Wilson, even if I know that I couldn’t vote to convict him. Was killing Brown really necessary, or was it the kind of punitive violence that is endemic in the FPD? To what extent was Wilson worried about his own safety, and to what extent was he just angry that Brown disrespected his authority? (For example, Wilson explains why he reached for his gun rather than his taser during the struggle in his SUV. He doesn’t explain why — given a brief period of time to collect himself before pursuing Brown — he didn’t switch weapons.) Was it really necessary to keep firing, or did the stereotype of the unstoppable black beast affect Wilson’s decision? (Wilson’s choice of words — comparing Brown to a demon — suggests it did.)

I’ll never know for sure. But I couldn’t convict Wilson just on my questions. He should go free.

Justice. In the end, although the Justice Department hasn’t given the black citizens of Ferguson Darren Wilson’s scalp, it has given them what they really need: Exposure of the corrupt and predatory system they live under, and some hope of relief.

Friday, Attorney General Holder pledged that the Justice Department is “prepared to use all the power that we have … to ensure that the situation changes.”

Asked if that included dismantling the Ferguson Police Department, Holder said, “If that’s what’s necessary, we’re prepared to do that.”

Sunday’s NYT illustrated all the ways that Ferguson is not unique, particularly in St. Louis County, but also in communities across the country. There are other predatory police-and-court systems out there. Those towns and cities will be watching Ferguson closely. If the DoJ follows through, the effects could ripple across the nation.

That may not be the conclusion that either side was asking for, but it may be the best ending this tragic story could have received.

* For contrast, consider this:

In one 2012 incident, for example, officers reported responding to a fight in progress at a local bar that involved white suspects. Officers reported encountering “40-50 people actively fighting, throwing bottles and glasses, as well as chairs.” The report noted that “one subject had his ear bitten off.” While the responding officers reported using force, they only used “minimal baton and flashlight strikes as well as fists, muscling techniques and knee strikes.” While the report states that “due to the amount of subjects fighting, no physical arrests were possible,” it notes also that four subjects were brought to the station for “safekeeping.”

Newspeaking About Torture

If you can’t ban a word, break it.

One major theme of George Orwell’s 1984 is the importance of language to oppressive governments. From the beginning of recorded history, crude dictators have punished people for criticizing their rule. But modern, sophisticated dictators change the language itself, so that thoughts undermining the ruling ideology are hard to put into words, and no one would understand what you were saying if you did.

Orwell described this technique in detail in an essay he appended to 1984, “The Principles of Newspeak“.

The purpose of Newspeak was not only to provide a medium of expression for the world-view and mental habits proper to the devotees of Ingsoc, but to make all other modes of thought impossible. … This was done partly by the invention of new words, but chiefly by eliminating undesirable words and by stripping such words as remained of unorthodox meanings, and so far as possible of all secondary meanings whatever.

That’s a fine strategy if you already run a totalitarian government like the one in Orwell’s Oceania. But it completely ignores the problems faced by movements still trying to rise to power, like today’s American conservatives. Despite controlling Congress, they can’t just ban words they don’t like.

All they have besides Congress is a media empire, vast wealth, and an amazing degree of message discipline. What can you accomplish with those resources?

Just by being loud and persistent, you can try to alter common usage to favor your ideology. Sometimes that works (“death tax“) and sometimes it doesn’t (“homicide bomber“). But the real challenge is to disarm a word that works against you or for your enemies.

In Oceania they’d simply remove the word from the dictionary and correct everyone who kept using it. (“It’s not in the dictionary, so it’s not proper Newspeak.”) Or they’d keep the word, but remove all its offending meanings, again correcting the people who persisted in using it incorrectly.

But what if you don’t have that kind of power? American conservatives solved this problem a long time ago: If you can’t ban a word, you apply your resources to break it through misuse.

I’m not sure when this started. (That’s the great thing about breaking a word; eventually everybody stops using it, so it never comes to mind again. Your tracks are covered, because hardly anybody ever asks “How did zimzam become unusable?”) Maybe it was during the Reagan years, when liberal became an insult to throw at people you don’t like. I’m not sure. I wasn’t paying attention to the right things then. None of us were, or we might have tried to defend liberal rather than just stop using it.

I first noticed word-breaking* years later, during the second Bush administration. A lot of nasty stuff was happening then: The U.S. government was torturing people in secret prisons, spying on its own citizens, locking people up indefinitely without trials, and manufacturing bogus reasons to invade a foreign country. The administration was justifying all that by putting forward bizarre new legal interpretations of “the unitary executive” and the nearly unlimited “Article II power” he had whenever he determined that we were at war. Standing previous conservative small-government and fiscal-responsibility rhetoric on its head, the administration was creating huge new programs to buy off key constituencies, and not raising any revenue to pay for them. (Just tack them on to the deficit. No worries.)

As I was reading an Economist article characterizing Bush’s ideology as “big-government conservatism”, I wondered: Why use such a cumbersome phrase, when English already had a perfectly good word for this configuration of ideas and policies — fascism.

The answer was that fascism had become unusable, because misuse had broken it. Just when America needed the word to describe what was going on, conservatives were instead discussing “liberal fascism” and “Islamo-fascism” and so forth. In the conservative media, suddenly anything and everything was fascist, except the kind of militaristic, torturing, secretive, prying, corporatist, big-government conservatism that had been practiced by Mussolini, Hitler, Franco, and Pinochet — and was increasingly being adopted by Bush.

The word fascist could have been a rallying call for the enemies of American conservatism. But conservatives averted that threat by breaking fascist through misuse. As a result, today you are perfectly free to talk about fascism — I just did — but no one will know what you mean. Fascist is nothing but an insult now; it has no real content. If you use it, you aren’t saying anything in particular, you’re just being aggressive and rude.

Terrorism was broken in another way, like a proud wolf who gets turned into an attack dog. Terrorism used to have a clear meaning: threatening or perpetrating violence against civilians for political purposes. It was an ideologically neutral description of a tactic that any political movement might resort to. But after a decade of misuse, terrorism has become any violent act conservatives disapprove of. So the Fort Hood massacre is terrorism, even though it was an attack against a military base. Whatever ISIS does is terrorist, even fielding an army and fighting pitched battles against other soldiers. But hardly anyone (except me) called the Sikh Temple murderer what he was: a white right-wing Christian terrorist. White Christian right-wingers can’t be terrorists any more; it’s an oxymoron.

More recently, religious freedom and religious persecution have been broken. A generation ago those were ACLU words, used by atheists, Jews, and other minority movements that struggled against oppression by the Christian majority.

That oppression hasn’t disappeared; in many ways it’s getting worse. But the words to fight it have been hijacked so that they’re barely usable any more. Today, religious persecution is telling a Christian baker that a gay couple is part of the general public his business serves. Or maybe it’s just saying “Happy Holidays” instead of “Merry Christmas”. Religious freedom means that a Christian employer is “free” to block any part of his employees’ health-care coverage that he doesn’t like, and a Christian pharmacist can freely decide whether he approves of your prescription (and the lifestyle it implies) before he fills it. Separation of church and state — which used to be the hallmark of religious freedom — is now a Communist idea that is part of the conspiracy to persecute Christians.

So now, when Kennesaw, Georgia won’t let a Muslim group rent space to worship in their town, or a parole officer forces an atheist to attend a religious program under threat of returning to jail, there are no words to describe what’s happening. Calling it “religious persecution” just confuses people.

And that brings us to torture. For the longest time, the primary defense of the Bush torture program was that it didn’t happen. There was no torture, there was just enhanced interrogation, a phrase brazen enough to do Newspeak proud.

But that defense has become untenable now that the Senate report on torture is out. Once the public heard the details, the claim that this wasn’t torture was exposed as ridiculous. (That’s only going to get worse as more details appear.) And although some are trying, the word torture can’t be reclaimed from the dark side. There’s no way to say, “We’re the Torture Party and that’s a good thing.”

But there is an alternative strategy: misuse the word torture until it breaks.

Dick Cheney pointed the way during his Meet the Press interview with Chuck Todd. When Todd asked how Cheney defined torture, Cheney deflected with this:

Well, torture, to me, Chuck, is an American citizen on a cell phone making a last call to his four young daughters shortly before he burns to death in the upper levels of the Trade Center in New York City on 9/11.

Todd followed up by asking whether rectal feeding was torture, and Cheney continued his distract-with-shiny-objects strategy.

I’ve told you what meets the definition of torture. It’s what 19 guys armed with airline tickets and box cutters did to 3,000 Americans on 9/11.

The misuse campaign is on. The American Thinker blog reports on the “real torture scandal in America“, which is abortion. General Boykin says “Torture is what we’ve done by having the IRS go after conservative groups.” The Koch-funded American Energy Alliance is calling EPA fossil-fuel regulations “torture”:

Whether it’s the costliest regulation in history or the coal-killing power plant rules (that Obama’s law professor says raise “constitutional questions”), it’s clear that the CIA isn’t the only government agency engaged in torture. At least the CIA isn’t torturing Americans.

The AEA illustrated its point with this cartoon:

Yes, “raising energy costs” and “harassing property owners” are now torture.

Expect to hear a lot more of this. Soon, every inconvenience to a conservative special interest group is going to be “torture”. Anything and everything will be “torture” — except a CIA interrogator looking into the eyes of a helpless (and possibly innocent) prisoner and threatening excruciating pain, trauma, or humiliation unless he talks.

Torture can’t be defended, so the word torture has to become meaningless. If you can’t ban a word, break it.

* I anticipate the question: “What about the ways that liberals try to change the language?” There are a number of words liberals have tried to remove from the language, like nigger or faggot. We discourage men from referring to adult females as girls, and so on. But these efforts have been above-board and transparent. For example, we have largely removed nigger from common usage among whites by openly discussing the reasons whites shouldn’t say nigger. If conservatives want to start a similarly open discussion to convince people to stop saying torture, I invite them to try.

5 Things to Understand About the Torture Report

You don’t have to read the full 525-page executive summary of the “torture report” — officially the Senate Select Committee on Intelligence’s Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program — to get the gist. The 19-page “Findings and Conclusions” section begins right after Senator Feinstein’s six-page introduction and is very readable.

When something this long and detailed comes out and says things a lot of people don’t want to hear, it’s easy to get drawn off into arguments that miss the point. So here are my “findings”, the main things that I think the average American needs to understand:

  1. We tortured people.
  2. A lot of people.
  3. We gained virtually nothing from it.
  4. It was illegal.
  5. No one has been held accountable for it.

1. We tortured people. Past public discussions of torture focused primarily on waterboarding, but this report makes it clear that “enhanced interrogation” also included beatings, sleep deprivation (“up to 180 hours, usually standing or in stress positions”), ice water baths (at least one detainee died of exposure), threats against detainee’s families (“threats to harm the children of a detainee, threats to sexually abuse the mother of a detainee, and a threat to “cut [a detainee’s] mother’s throat”), and “rectal feeding without documented medical necessity”.

In addition, inexperienced and poorly trained interrogators sometimes made up their own unauthorized torture techniques, and were not punished for doing so.

Compare this to the definition in Article 1 of the United Nations Convention Against Torture, which President Reagan signed in 1988 and the Senate ratified in 1994,* making it “the supreme Law of the Land” according to Article VI of the Constitution:

For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

If you are having any doubt about whether the acts described in the report are torture, imagine a foreign government doing them to an American. John McCain doesn’t have to imagine this, he can remember it, so he has no trouble calling the CIA’s program torture.

2. A lot of people. The public arguments about waterboarding usually led to the claim that we had only done it to three very bad people. But the report says the CIA applied “enhanced interrogation” to 119 people, many of whom didn’t meet the program’s own standards for inclusion.

These included an “intellectually challenged” man whose CIA detention was used solely as leverage to get a family member to provide information … and two individuals whom the CIA assessed to be connected to al-Qa’ida based solely on information fabricated by a CIA detainee subject to the the CIA’s enhanced interrogation techniques.

And remember: that’s just the CIA. It doesn’t count all the prisoners abused by the Army at Abu Ghraib and elsewhere. For an account of that torture, I recommend Fear Up Harsh by former Army interrogator Tony Lagouranis, who wrote:

Once introduced into war, torture will inevitably spread, because ticking bombs are everywhere. Each and every prisoner, without exception, has the potential to be the one that provides the information that will save American lives. So if you accept the logic that we have to perform torture to prevent deaths, each and every prisoner is deserving of torture.

3. We gained virtually nothing from it. Torture’s effectiveness in getting information out of people has been hotly debated all along. Dick Cheney and others claimed it was invaluable, while the sources Jane Mayer and Phillippe Sands talked to said otherwise. After reviewing the CIA’s records, the Senate Intelligence Committee began its findings by calling BS on torture advocates’ effectiveness claims.

#1: The CIA’s use of its enhanced interrogation techniques was not an effective means of acquiring intelligence or gaining cooperation from detainees.

The shocking thing you learn as you get into the history of the program is that there was never any real reason to think it would be effective. The program was not designed by experienced interrogators, but by a consulting psychologist with no experience, based not on techniques that had gotten information out of prisoners in the past, but on a program we ran to teach our own soldiers how to resist torture. In other word, “enhanced interrogation” was designed to be torture, not to get information.

The repeated claims that torture “saved American lives” were based on several types of deception: giving torture credit for everything a tortured detainee told us, even if he told us before he was tortured; giving torture credit for thwarting “plots” that were never more than a few terrorist wannabees talking big to each other; and picking out rare nuggets of truth from a spew of lies and nonsense after we’d gotten the same information some other way.

People under torture will start saying things to make it stop. If there’s a story you want to hear, they will tell it to you; that’s why torture is so good at forcing false confessions out of people. But it doesn’t seem to be a good way to get them to tell you the truth.

In addition to gaining us nothing, the torture program cost the United States a great deal, not just in money, but in our moral standing around the world, and our international relations. The report describes how U. S. ambassadors to various countries were not cleared to know about the secret prisons the CIA had arranged to build in those countries. We can only imagine how the rulers laughed when their U.S. ambassadors pressed them to be more transparent about human rights.

4. It was illegal. The memos written by the Bush administration’s Office of Legal Counsel were already bizarre distortions of the applicable law, ignoring the clear statements of Article 2.2 of the Convention Against Torture:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

and the Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

These OLC torture memos have been repudiated by President Obama.

But the Senate report now informs us that the CIA was not telling the Bush OLC what their program was really doing, and was lying about its effectiveness.

OLC memoranda signed on May 30, 2005, and July 20, 2007, relied on these representations, determining that the techniques were legal in part because they produced “specific, actionable intelligence” and “substantial quantities of otherwise unavailable intelligence” that saved lives. … The CIA’s representations to the OLC about the techniques were also inconsistent with how the techniques would later be applied.

So the CIA lied to the OLC about what it was doing and whether it was working, and the OLC lied to the President about whether the program (as the CIA had described it) was legal. This was a frequent pattern in the Bush administration, which also turned up in the “evidence” that Saddam had an active WMD program: Some low-level analyst would shade his conclusions to correspond to what his boss wanted to hear; his boss would shade them further for his boss; and so on up the ladder.

What we don’t know for sure is whether Bush, Cheney, or other top officials wanted it this way. Were their underlings out of control and deceiving them about it? Or was this a wink-and-nod arrangement that gave the higher-ups deniability?

5. No one has been held accountable for it. In the early months of his administration, President Obama pledged that he would not prosecute the torturers at the CIA, justifying his position like this:

It is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice, that they will not be subject to prosecution.

That sort of made sense: Maybe you realize what you’re doing is dicey under the law, but you’re not a lawyer and the lawyers say you’re OK. It shouldn’t be a crime to trust them.

But now the Senate report makes it clear that at least some people at the CIA were manipulating the Department of Justice’s Office of Legal Counsel, feeding it false information about the nature and success of their program, and then doing more than the OLC torture memos authorized. Nevertheless, Obama has shown no signs of changing his position.

Subsequent to his boss’ declaration, Obama’s chief of staff elaborated that the policy-makers who OK’d torture and the lawyers who invented bogus justifications for it would also not be prosecuted. He didn’t explain, but simply said, “That’s not the place that we go.” So the Obama administration ratified what law professor Jonathan Turley had dubbed “Mukasey’s Paradox” in honor of Bush attorney general Michael Mukasey:

Under Mukasey’s Paradox, lawyers cannot commit crimes when they act under the orders of a president — and a president cannot commit a crime when he acts under advice of lawyers.

In other words, if a president orders his OLC lawyers to find a way to justify him doing whatever, they all get off scot free.

But then there’s that pesky Convention Against Torture again, and that whole constitutional thing about treaties being the supreme law of the land. Countries that sign the CAT — like the United States — are obligated to investigate and prosecute cases of torture within their jurisdiction. Republicans love to call President Obama “lawless” and accuse him of failing to “faithfully execute the laws” as the Constitution mandates. I’ve argued in the past that those claims are bogus, but in this case — a case where nearly all Republicans agree with him — Obama really is failing to execute the laws.

University of Chicago law professor Eric Posner offers this argument against prosecution:

When the president takes actions that he sincerely believes advance national security, and officials throughout the government participate for the same reason, then an effort to punish the behavior—unavoidably, a massive effort that could result in trials of hundreds of people—poses a real risk to democratic governance.

Obama’s problem is that if he can prosecute Republican officeholders for authorizing torture, then the next Republican president can prosecute Obama and his subordinates for the many questionable legal actions of the Obama administration—say, the drone strike that killed Anwar al-Awlaki and three other American citizens.

In practice, this honor-among-thieves argument comes dangerously close to Nixon’s adage that “when the President does it, that means that it is not illegal.” Nobody is willing to follow it as far as it would go. A president might order genocide out of a sincere belief that the targeted race constitutes a risk to national security, and underlings might carry out those orders for the same reason. (I suspect most of the world’s genocides can be made to fit that pattern.) Should they get off?

I want to stand Posner’s argument on its head: What endangers democratic governance is the tacit agreement that neither party will prosecute its predecessors (except for Blagojevich-style personal corruption) no matter what laws they break. I’m a Democrat who voted for Obama twice, but I would welcome an investigation of the legality of the drone program. If it’s a war crime, then people should stand trial, up to and including President Obama himself.

Posner may be right that no jury would convict a CIA torturer, or someone like Bush or Cheney — or Obama for that matter. But that’s a jury’s decision to make, and not anyone else’s.

So what about ticking bombs? In the ticking-bomb scenario torture defenders love to cite, you are absolutely certain that

  • a hidden nuclear bomb is about to destroy some city like New York, killing millions
  • a guy you are holding knows where it is and how to disarm it
  • he’ll tell you if you torture him, but not otherwise

It’s worth noting that this was not the case for any of the 119 detainees the CIA tortured. So we’re weighing a made-for-TV movie scenario against 119 real people.

In any real situation, you wouldn’t know any of this. You’d have unconfirmed reports about a bomb, which might or might not work, set to go off sometime. You’d suspect this guy was part of the plot. You’d hope he had the information you need. And maybe torture would get it out of him, or maybe it would just solidify his resolve — which otherwise might have melted at the last minute as the enormity of the crime became real to him. So you’d be acting on a hunch, with the possibility that maybe you want torture this guy out of frustration with your own helplessness rather than because it would accomplish anything.

But suppose you’re convinced that torture will make the difference here and save New York. What should happen? I think you save New York, but then you turn yourself in and throw yourself on the mercy of a jury (hopefully a jury of New Yorkers). If you’re not willing to take that risk, then you’re no hero. You’re willing to make somebody else suffer to save lives, but not willing to risk suffering yourself.

There should never be a process that can give prior approval to torture, or hide it after the fact. Everybody who decides to torture in America’s name should have to face his fellow citizens.

Truth and reconciliation. One suggestion to preserve at least some of the integrity of our legal system is that President Obama could offer formal pardons to the Americans involved in torture, from President Bush on down to the guys who poured the water during waterboarding. ACLU Executive Director Anthony Romero explains:

The spectacle of the president’s granting pardons to torturers still makes my stomach turn. But doing so may be the only way to ensure that the American government never tortures again. Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware. Prosecutions would be preferable, but pardons may be the only viable and lasting way to close the Pandora’s box of torture once and for all.

Jonathan Bernstein agrees, hoping that generous pardons would take the partisanship out of torture, and allow Republicans to condemn it. But he adds:

A final step has to be a truth and reconciliation commission to detail what happened and how counterproductive it was. … The only way to get the truth, in other words, is to make it clear that a commission will treat the people involved generously, even if its investigation shows the horrors of what they did.

Truth and reconciliation commissions have been used in many countries — notably South Africa — to move on after a national moral catastrophe. I have my doubts it would work here (and so does Bernstein). But if the alternative is to do nothing …

* The Convention Against Torture was ratified with official reservations. But none of the reservations mention Article 1 or Article 2.2.

The Summer of Snowden I: language of denial

We now have seen enough NSA denials to decrypt what they’re really saying.

Liberal, conservative, or independent, our news media does a bad job covering stories that play out over months. “News” is what’s happening right now — the newest revelation and the latest denial — embedded in a cloud of speculation about what might happen tomorrow. That focus on today’s scoop increases political polarization: When today’s headline contradicts yesterday’s and tomorrow’s is different yet, it’s tempting only to remember the ones that fit your prior bias. The one’s that don’t fit, well, they were all refuted by later developments, weren’t they?

In this series I’m going to take a longer perspective. What do we know about the NSA’s domestic spying that we didn’t know (or weren’t as sure of) in May? And I’m going to begin the series with a topic that would fit better in a college-course syllabus than a news article: vocabulary.

That may sound boring, but it’s the right place to start. The big reason this story keeps ping-ponging between alarm and reassurance is that the words the NSA uses in its comforting denials don’t really mean what you think they mean.

Ping-pong. Since June 5, when The Guardian and The Washington Post began publishing NSA documents leaked by Edward Snowden, revelations about the NSA’s spying on Americans have had a back-and-forth quality. Something alarming comes out, then more details are released that make the initial story seem overblown, then we discover that the comforting safeguards in the second round of stories are often violated in practice, and on it goes.

So, for example, the public’s initial worries (ping!) about domestic spying were countered by assurances (pong!) that it happened only under warrants from the secret Foreign Intelligence Surveillance Court (FISC), which had been established by Congress in the Foreign Intelligence Surveillance Act (FISA). That felt familiar, like the police-procedural shows on TV; authorities have to convince a judge they have a good reason to be suspicious of you before they can invade your privacy.

Then Snowden revealed just how open-ended those orders can be: Verizon was ordered not to turn over not just data about specific people connected to a particular terrorism investigation, but data about all calls going through its system. Apparently, the NSA was building a database of all phone calls in the United States — who called who, when, from where, and for how long. Ping!

But then we found out (pong!) that further FISC orders were required whenever the NSA used the database, and the database itself had auditing procedures to make sure analysts weren’t just messing around with it whenever they wanted. The Week reports:

In order to access the stored data sets, the NSA needs to have a real tangible reason. … [The] law has been interpreted by the Foreign Intelligence Surveillance Court to relate only to the way in which the data is used.

And then last month (ping!) it came out that the FISC had reprimanded the NSA for lying to it about what it was doing:

The court is troubled that the government’s revelations regarding N.S.A.’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.

Those abuses, we are told, were all corrected in 2011 (pong!), so everything is hunky-dory now.

Meanwhile, another Snowden leak (ping!) gave us an internal audit in which the NSA found it had violated its own safeguards 2776 times during the year ending in March 2012. (The Electronic Frontier Foundation points out that even this report is incomplete: “the thousands of violations only include the NSA’s main office in Maryland—not the other—potentially hundreds—of other NSA offices across the country.”)

But the violations appear to be accidental and trivial. (Pong!Senator Feinstein assured us that the Senate committee overseeing the NSA “has never identified an instance in which the NSA has intentionally abused its authority to conduct surveillance for inappropriate purposes.” Well, except for NSA officers who spied on their partner or spouse. (PIng!) But that almost never happens (assuming we caught them all) and usually is abusing the NSA’s foreign intel, not domestic intel. (Pong!)

What has been reported as fact provides fertile ground for worrisome speculation: How hard it would be to hide a needle in that haystack of violations? And what if there’s a further layer to this onion, and malevolent or overzealous analysts have ways to circumvent the audits? The NSA, after all, is supposed to have the best hackers in the world. What if a few of them have hacked the NSA’s own systems? Snowden himself must have circumvented a few internal procedures to escape with all those documents.

Decrypting the NSA. Here’s the first lesson to learn from the Summer of Snowden: When the NSA makes those comforting denials, it is choosing words carefully and using them in non-standard ways. This summer we’ve heard so many denials that we’re now able to properly interpret statements that were constructed to obfuscate. (This work builds on the glossary that the Electronic Frontier Foundation started compiling during the Bush administration.) Ironically, this is a standard code-breaking technique: If you can induce your opponent to send a lot of coded messages, you have much more data to use in breaking the code.

Collect. In the  Free Online Dictionary, this is the first definition for collect:

To bring together in a group or mass; gather.

So if someone were gathering information about you and storing it in a database, you would probably say they were collecting information about you. Conversely, when the NSA says they aren’t collecting information about you, you probably think they are denying the existence of such a database.

They aren’t. In NSA parlance, information hasn’t been collected until it comes to the attention of a human analyst. If no database query returns your information to a person, it hasn’t been collected.

And so we can have public exchanges like this one in front of the Senate Intelligence Committee on March 12:

Senator Ron Wyden (D-Oregon): Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

Director of National Intelligence James Clapper: No, sir.

Senator Wyden: It does not?

Director Clapper: Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.

Three months later we found out about the Verizon court order. Clapper undoubtedly knew in March that the NSA was assembling a database containing information on everyone who uses a phone, but since the number of Americans whose information is seen by a human analyst is less than “millions”, he could say no.

A small-scale analogy: Imagine that your neighbor raids your mailbox every day before you get home from work, steams the letters open, photocopies them, files the copies, and then reseals the envelopes and returns them to your box before you notice. In NSA terms, as long as he is just filing the copies and never reads them, he’s not collecting your mail.

Content. In the NSA’s public statements, only the body of an email or phone call is considered content. Anything in the header of an email — including the subject line — is metadata and not content. Likewise, the fact that you called so-and-so at a certain time from a certain place and talked for so many minutes is not content, even if what you said is easily deducible from that information. The New Yorker’s Jane Mayer quotes the following example from Sun Microsystems engineer Susan Landau:

You can see a call to a gynecologist, and then a call to an oncologist, and then a call to close family members.

The Guardian has a good summary of what metadata means in the context of email, phone calls, web browsing, Google searches, photographs, and posts to Facebook or Twitter.

The EFF points out that content is defined much more broadly in the FISA law itself:

any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication

If the NSA used the law’s definition, it could not deny that it’s accessing the content of your communications.

Conversation and communication. Similarly, the NSA makes a distinction between communications and conversations. Your conversation is in the content of your phone call, while the communication includes the metadata. So in 2006 Director of National Intelligence Michael Hayden was able to say:

the activities whose existence the president confirmed several weeks ago … is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about. This is targeted and focused. This is not about intercepting conversations between people in the United States. This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda.

In reality, Hayden did have a driftnet gathering up metadata to feed into data-mining tools, as he later acknowledged. He just wasn’t feeding in conversations.

Specificity. Director Hayden’s statement is an example of another kind of trickery, which I made a little more obvious by the way I edited his quote: Denials are almost always about specific programs, not about the totality of the NSA’s activities.

The typical scenario goes like this: Questions will be raised about PRISM or XKeyscore or some other NSA program, and the official response seems to deny that the NSA is doing a certain kind of thing. But if you read the response carefully, all it really says is that the NSA isn’t doing that thing under that program.

Take another look at what Hayden said. If some other NSA program actually were scanning the content of conversations for keywords, he would not have lied.

Target. In an interview with Charlie Rose in June (beginning at about the 26-minutes-to-go mark), President Obama said:

President Obama: What I can say unequivocally is that, if you are a U.S. person, the NSA cannot listen to your telephone calls, and the NSA. cannot target your e-mails.

Charlie Rose: And have not?

Obama: And have not.

The law does not allow the NSA to “target” an American’s phone calls and emails. But the ACLU explains how your privacy can be violated without “targeting” you.

if an American is communicating (however innocently) with a foreign “target” under the [FISA Amendments Act of 2008], the law allows the government to collect, inspect, and keep the content of that communication. … The target need not be a suspected terrorist or even suspected of any kind of wrongdoing. … While official defenses have flatly stated that targets under the FAA must be both foreign and abroad, the statute only requires that the government “reasonably believe” those things to be true.

The Washington Post elaborates:

Analysts who use the [PRISM] system from a Web portal at Fort Meade, Md., key in “selectors,” or search terms, that are designed to produce at least 51 percent confidence in a target’s “foreignness.” That is not a very stringent test. …

Even when the system works just as advertised, with no American singled out for targeting, the NSA routinely collects a great deal of American content. That is described as “incidental,” and it is inherent in contact chaining, one of the basic tools of the trade. To collect on a suspected spy or foreign terrorist means, at minimum, that everyone in the suspect’s inbox or outbox is swept in. Intelligence analysts are typically taught to chain through contacts two “hops” out from their target, which increases “incidental collection” exponentially.

In July, AP reported that the system sucks in data about a vast number of non-targeted people.

For the first time, NSA Deputy Director John C. Inglis disclosed that the agency sometimes conducts what is known as three-hop analysis. That means the government can look at the phone data of a suspected terrorist, plus the data of all of the contacts, then all of those people’s contacts, and all of those people’s contacts.

If the average person calls 40 unique people, three-hop analysis could allow the government to mine the records of 2.5 million Americans when investigating one suspected terrorist.

Or, as Ben Brooks summarizes: “Two hops is a lot of people, three hops is basically anyone.” The ACLU concludes:

these exceptions and loopholes open the door to the routine interception of American communications. And this doesn’t just result from the odd mistake; this is what the law was designed to do. … Domestic communications can be retained forever if they contain “foreign intelligence information” or evidence of a crime, or if they are encrypted or aid “traffic analysis.” That’s a lot of exceptions. And even communications that do not meet any of these criteria can be stored in the NSA’s massive databases for as long as five years.

Once your information has been pulled out of the general database by such a search, it enters “the corporate store“, a database which NSA analysts can access without further court orders — even though you were never “targeted”.

Who does this fool? Notice that the exchange between Director Clapper and Senator Wyden wasn’t on some Sunday talk show; it was in a Senate committee hearing. We also have writings from FISC judges who complain about being misled by the NSA. And that leads to Part II of the Summer of Snowden series (which might appear next week if space allows): Why constitutional checks and balances aren’t working.