Tag Archives: civil liberties

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.

Edward Snowden Is Not the Issue

Focusing Snowden distracts us from the NSA. The NSA loves that.

Whether Edward Snowden is a hero or a traitor* makes for great talking-head debates. Why did he do it? Will he get away with it? What’s he going to do next?

Let me ask a better question: Why do you care? You’re not going to invite Snowden over for dinner or offer him a job, so why do you need to know whether he’s a good person or not? On the other hand, if you’re planning to keep living in the United States, or in any country under the influence of the United States, how the NSA might be spying on you is important. That’s where your attention should be.

I know, I know. Making Snowden the issue lets journalists interview Snowden’s attractive girlfriend (an ABC News article — with picture, naturally — describes her as “an acrobatic pole performer“), her father, and even some woman who lives next door to his mother. (He “seemed like a nice young man”.)

Pole dancer!

Great stuff for ratings, but completely beside the point — what the logicians call an ad hominem fallacy. It’s also standard operating procedure when anybody blows the whistle on wrong-doing in high places: First make the whistleblower the issue, and then assassinate his or her character.

Leaving pole dancers out of it for a few minutes, let’s review the important questions:

Are the programs Snowden described real? Yes. So far the government is not denying the authenticity of the documents Snowden has leaked. Much of it they have verified.

Are they as invasive as the Guardian article made them sound? Unclear. As the techies look at the leaked PRISM documents, many are concluding that one key slide was misinterpreted. It doesn’t really mean that the NSA has a pipe into the central servers at Google and Facebook, from which it can grab whatever it wants at will. There seems to be more process involved than that.

On the other hand, AP reports:

But interviews with more than a dozen current and former government and technology officials and outside experts show that, while Prism has attracted the recent attention, the program actually is a relatively small part of a much more expansive and intrusive eavesdropping effort.

CNET reports the NSA admitting in a congressional briefing that their analysts can listen to phone calls on their own authority, just as Snowden said he could. But other sources are saying that also is based on a misunderstanding. Julian Sanchez does a good job of sorting out what we know and don’t know.

Legally speaking, the analysts don’t have carte blanche. In other words, this isn’t “warrantless wiretapping” so much as “general warrant wiretapping.” They can’t just tap any old call or read any old e-mail they strikes them as “suspicious.” They’ve got to be flagging content for interception because they believe it’s covered by a particular §702 authorization, and observe whatever “targeting procedures” the FISA Court has established for the relevant authorization.

On the third hand, it’s not clear who is enforcing those rules or whether the analysts ever break them.

Are they legal? It depends on what the meaning of is is.  If you mean: “Can the government point to laws and procedures that they are following?”, then the answer seems to be yes. But if the question is whether those laws and procedures fulfill the Fourth Amendment‘s guarantee of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”, I would say no.

Are the safeguards protecting the privacy of innocent people working? We don’t yet have an egregious example of them not working. But if it makes you feel safe that a secret court has to approve these programs, you should read what retired Judge Nancy Gertner says:

As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.

The judges appointed to this court aren’t representative of the judiciary as a whole, and chosen precisely because they are sympathetic to government power.

it’s not boat rockers. … To suggest that there is meaningful review it seems to me is an illusion.

Congressional oversight also looks more impressive on paper than it seems to be in practice. WaPo reporter Bruce Gellman said on Face the Nation:

Aside from the members of the intelligence committees, there is something near zero members of Congress who have a member of their staff who is cleared to know anything about this.

He described a “locked room” where Congressmen can go to read unbelievably complicated documents for themselves, “and the number of members who do that is zero.”

What’s the effect on democracy if those safeguards fail? The country would effectively be ruled by the people who know everybody else’s secrets. How many congressmen could vote against them? What president could shut them down?

Do these programs really catch terrorists? I’m impressed that Al Franken says they do. But I’m not impressed that we have to take other people’s word for it. It’s like the torture debate: The government can say it works, but if we’re not cleared to look at the evidence, then why should we believe them?

And none of these claims assess how much domestic terrorist recruitment is aided by Americans’ sense that they are subjects of a government beyond their control or understanding.

Why do they have to be secret? Senator Tester denies that Snowden’s leaks harmed national security. And it’s hard to imagine a terrorist cell that wouldn’t already be thinking about people tapping its phones and reading its email.

Some details need to be secret — plans for the H-bomb, dates for the D-Day invasion, and so on. But the government’s interpretations of the laws should never be secret. The American people are owed a map of the rights they have lost, and at every wall that keeps them from knowing more, we are owed an explanation of why we can’t know more. We haven’t gotten that yet.

*Notice what a hero/traitor dichotomy assumes. If what the government is doing is evil, then Snowden could be both a hero and a traitor.

Herd Immunity Against Online Spying

Can people like us make the NSA’s job harder?

Unlike Senator Lindsey Graham, I’m not “glad” the NSA is hoovering my data into a big database that they pledge (cross their hearts and hope to die) not to access without court authorization and Congressional oversight.

Last time I checked I wasn’t conspiring with terrorists, and off the top of my head I can’t think of any big secrets I’m hiding, but the whole thing just makes me uneasy, given what has happened in the past. The meaning of “terrorist” sometimes gets stretched from jihadist mass murderers to, say, environmentalists who sabotage bulldozers or maybe even Martin Luther King. And while I don’t know how seriously to take Steven Rambam’s claim that it’s “routine” for authorities to log all the cell phones at demonstrations like Occupy Wall Street, I can’t call it unbelievable either.

So, as I said last week, I’m inclined to monkey-wrench a little, and to encourage others to do the same.

The problem is, I’m not a hacker. I’m pretty good at finding things with Google, and I can usually follow step-by-step instructions as long as nothing (and I mean nothing) has changed since the author wrote them, but configuring software isn’t fun for me. I don’t think of it as an artistic outlet. Mostly, I just want stuff to work so I can get on with whatever I sat down to do.

In short, it’s very unlikely that anything I do as an individual is going to give the NSA much of a headache. But there are lots and lots of people at my middling level of sophistication. Are there simple things we could do collectively to make government surveillance more difficult?

That’s what I started playing with this week. Starting with some suggestions from Timothy Lee’s Five Ways to Stop the NSA From Spying On You, I tried out some simple anonymizing tools. I ignored the ones that depend convincing my friends to learn encryption, and focused on things I can do on my own.

I’d like to see more people use these and similar tools for a very simple reason: herd immunity. If only one person is trying to hide his information from the government, that by itself makes him look suspicious. But if lots and lots of people are doing it, then the people with nothing to hide provide cover for any Martin Luther Kings that the government tries to spy on.

Saying the same thing more technically: Data mining like the NSA is doing has a false-positive problem. It might identify a revolutionary (as this clever Paul Revere example illustrates), but it might also pick out a thousand other people who have nothing to do with whatever the government is investigating. So if we all start acting more suspiciously, maybe we can increase the false positives to the point that the whole program becomes useless.

TOR. TOR stands for The Onion Router. (No connection to the satire-news site The Onion. I think the image is supposed to represent something that has layers within layers and can’t be peeled.) Wikipedia says: “Tor directs Internet traffic through a free, worldwide volunteer network consisting of thousands of relays to conceal a user’s location or usage from anyone conducting network surveillance or traffic analysis.”

The Tor browser is free, and easy to install and use. It works with the Windows, Mac, or Linux operating systems. You can download it here.

The first thing I noticed using Tor is that it’s a little sluggish. It’s not agonizingly slow, but if you’re used to web pages popping up instantly, you’ll notice a lag — just long enough to make you realize that your data is zipping and zapping all over the world. (Like Louis CK says about cell phones: “It’s going to space. Can you give it a second?”)

Second — and this is so obvious in retrospect that I feel stupid mentioning it — remaining anonymous is the exact opposite of identifying yourself. So Facebook keeps asking me security questions, because (even though I’m on my home desktop machine) I don’t appear to be anyplace I usually log in from. And I can never guess what country’s home page CNN is going to serve up.

So whether I’m hiding anything from the NSA or not, I’m pretty sure I’m keeping Google confused.

Finally, some stuff is inherently insecure, so Tor either recommends you not install it or just won’t work with it. For example, using Flash with Tor kind of defeats the purpose. So I’ve been using Tor in combination with another browser. When I want to log in to something or watch a video, I’ll jump over to FireFox.

If you start using Tor regularly — or you just like the idea of it — you might want to contribute to the Tor Project.

TorMail. If you worry about Google or Yahoo turning your mail over to the NSA — email that sits on a server gets none of the constitutional protection of snail mail or phone calls — then TorMail is your answer.

It’s web-based email, just like you’re used to. But the system is designed in an admirably paranoid way. Your traffic goes through the Tor network, so you can only access it with the Tor browser. (People claim you can use the Thunderbird email client as a front end, but I wasn’t able to make that work. And you still need to be connected to the Tor network.) Mail servers that send and receive from the Tor network are pure relays that don’t have any mail sitting on them. So there’s nothing to seize and nobody to serve a warrant to.

LPS. This is the coolest thing I played with, and I was surprised how easily it worked for me. Lightweight Portable Security is something the Air Force wrote to allow their people to do secure work on insecure machines. Here’s the idea: LPS is a very small operating system that you put on a CD or a thumbdrive. Insert that disk into anybody’s machine and tell it to reboot. (You don’t even need their password, because you’re not using their operating system or opening their files.)

LPS takes about 3-5 minutes to load, and then you have a minimal Linux-based desktop with a FireFox browser. After you connect to the local network (maybe you’ll need a password there), you’re free to roam the internet. I checked my mail, edited files on my Google drive, and posted to Facebook. And when I shut down and took my disk, no trace of me remained on the machine I’d been using, because I’d never touched its file system. Likewise, my files didn’t pick up any of the viruses or spyware that might have been on the host machine.

I think the Air Force wants its LPS users to immediately log on to some super-secure Department of Defense network. I can’t do that, so my next project is to add a Tor browser to LPS. That should make me both invisible to the machine I’m using and anonymous to the web sites I visit. (OK, maybe I am starting to enjoy this a little.)

If you’ve been trying out anything the rest of us should know about, mention it in the comments.

PRISM and Privacy

This week’s big story was the series of revelations about government spying on ordinary Americans. I don’t see the Weekly Sift as a breaking-news blog, but before we can get around to reflecting on how upset we should be and what we should do about it, let’s establish what happened.

Verizon metadata. It started Wednesday, with Glenn Greenwald’s scoop that Verizon turns its caller records over to the NSA every day. The report was based on a copy of an order from the secret FISA court that oversees the government’s secret snooping. The order, in turn, is based on an expansive interpretation of a provision of the Patriot Act.

Leaks during the Bush administration revealed that call records were being swept up into a massive government database, but

Until now, there has been no indication that the Obama administration implemented a similar program.

Three related New Yorker articles are worth reading: a Seymour Hersh article about what the NSA was doing in 2006, Jane Mayer explaining just how much about the content of a phone call can be deduced from metadata, and (laughing to keep your sanity) Andy Borowitz’s satirical “Letter to Verizon Customers” in which the company explains that

While the harvesting and surveillance of your domestic phone calls were not a part of your original Verizon service contract, the National Security Agency is providing this service entirely free of charge.

Probably there’s nothing special about Verizon; that’s just the court order we happen to have.

PRISM. Thursday, The Guardian and The Washington Post published a leaked slide presentation on the top-secret PRISM program, in which “search history, the content of emails, file transfers and live chats” are collected directly from the servers of major U.S. service providers like Google, Facebook, and Apple. As the then-anonymous leaker claimed, “They quite literally can watch your ideas form as you type.”

Edward Snowden. This weekend, I was explaining to my wife that I didn’t understand why the leaker was staying anonymous, since the NSA was going to figure it out anyway. He might as well orchestrate the announcement himself, rather than be introduced to the world while doing a perp walk.

It turns out he was having similar thoughts. Saturday Edward Snowden was revealed as the whistleblower. Currently hiding out in Hong Kong, Snowden gave this interview to Glenn Greenwald.

Defending surveillance. A variety of sources jumped to the defense of the newly-exposed programs. President Obama emphasized that the programs “do not involve listening to people’s phone calls, do not involve reading the e-mails of US citizens and US residents.” And there is oversight to prevent abuse:

Your duly elected representatives have consistently been informed. … This program, by the way, is fully overseen not just by Congress, but by the FISA court, a court specially put together to evaluate classified programs. … We have established a process and a procedure that the American people should feel comfortable about.

Obama’s bottom-line justification of the spying programs is: “They help us prevent terrorist attacks.”

Democrat Dianne Feinstein and Republican Saxby Chambliss — the ranking members of the Senate Intelligence Committee — released a joint statement:

The intelligence community has successfully used FISA authorities to identify terrorists and those with whom they communicate, and this intelligence has helped protect the nation. The threat from terrorism remains very real and these lawful intelligence activities must continue, with the careful oversight of the executive, legislative and judicial branches of government.

Opposition in Congress comes from an unusual right/left alliance: liberals like Ron Wyden and Mark Udall, as well as conservatives like Rand Paul.

Four levels of privacy loss. Now we’re getting into the how-should-I-think-about-this part. When I think about “loss of privacy”, I might be talking about four different things:

  1. The modern world collects a lot of information about me. We don’t usually think about it, but just about everything we do leaves a record somewhere. When I walk past a security camera, make a phone call, buy something with a credit card, or go through the E-Z-Pass toll gate, something gets recorded. Most of that security video is never watched by anybody, but it could be, and that by itself might intimidate me out of doing something perfectly legal and harmless, like dancing to the Muzak when I’m by myself in an elevator.
  2. My information could be gathered together into a database, even if no one is targeting me. It’s one thing to imagine a rogue security guard in my building getting obsessed with me (or with my daughter, if I had one) and scanning security tapes. It’s another thing entirely to worry about somebody with access to security cameras everywhere, as well as cell-phone tracking data, credit-card data, TSA body scans, and so on. Again, I’m not important enough for anybody to bother, but the mere possibility is worrisome.
  3. I might be investigated by the government. Think about J. Edgar Hoover tapping Martin Luther King’s phone. Just exercising your constitutional rights in a totally legal way — organizing the next Occupy Wall Street, say — could put you under the government’s microscope. Suddenly, every illegal or embarrassing thing you’ve ever done (no matter how trivial) might come to light and be used to tear you down.
  4. Someday the government might routinely keep track of everyone. So far this is science fiction, because you’d need to hire half the country to watch the other half. But as artificial intelligence improves and processing power grows, the idea of a system that processes all that gathered information and draws conclusions about everybody becomes less and less far-fetched

Now we’re in a position to think about the things we learned this week about government surveillance. It’s tempting to be mad at the government for our level-1 loss of privacy, but that’s just life in the modern world. You need to put that aside.

The Level-2 issues. This week’s revelations indisputably showed level-2 loss of privacy. Information that already existed in separate places is being pulled together into big government databases.

Anybody who watches prime-time TV cop shows shouldn’t be terribly surprised that information can be pulled together about specific people for some good reason. Castle and Beckett are constantly studying suspects’ financial records, looking for specific cars on traffic cams, getting businesses to turn over security-cam videotapes, and so on. The Boston Marathon bombing investigation was like CSI: Real World. We expected investigators to have video of everything and records of everything. If we were disappointed, it was that the FBI couldn’t assemble and process that information to zero in on the bombers faster.

The public is mostly OK with this — supports it, even — as long as the information is handled properly: The government has a good reason to assemble the information; investigators use it to accomplish that legitimate purpose; and after the purpose is fulfilled, they dispose of the information they don’t need. We assume that Castle and Beckett stop tracking a suspect’s financials after his alibi checks out, and that after the case closes, they do their best to forget what they’ve learned. It would creep us out to see them compiling private information just to satisfy their curiosity.

So the idea that the government might be collecting everybody’s phone and/or internet records and storing them forever — that’s a problem.

Level 3 issues. The government’s defense amounts to: Level 2 doesn’t matter as long as we have good procedures in place to protect Level 3. In other words, compiling the database shouldn’t bother you; the real violation of privacy doesn’t happen until somebody accesses the database.

I’m not persuaded, mostly because the safeguards are as invisible to me as the programs were until Wednesday. Courts that have to publish their opinions sometimes make outrageous rulings, and we can respond by pressuring Congress to change the law or starting a movement to amend the Constitution. But if a secret court makes an outrageous ruling, none of that happens, because we don’t hear about it.

Likewise, police sometimes exceed their authority, as they often did during the Occupy protests. When the excess takes the form of pepper spray or a baton to the head, it might show up on YouTube or result in a lawsuit. But when the excess is the misuse of a database, you might never know. Even if you suffer tangible effects, you probably won’t be sure what happened.

One of the things Snowden emphasized in his Greenwald interview was that policy safeguards aren’t much to stand on, particularly if the details of the policy are secret. If you’re a loyal Democrat, you might imagine that President Obama is honestly doing his best to keep the databases from being abused; if you’re  a Republican, you might have similarly trusted President Bush. Good for them if they really did prevent abuse, but the long-term threat is still there.

We have had untrustworthy presidents in the past and we will undoubtedly have another one someday. Or we’ll have an emergency that makes everybody temporarily forget all those namby-pamby notions of privacy. Policies can change in a blink, or people can just stop enforcing them. And if they’re secret policies, no one will know.

Snowden calls this “turnkey tyranny”.

What can be done? This is the hardest kind of thing to fix through the democratic process. First, because a lot of Americans, maybe a majority, would buy the idea that the threat of terrorism justifies ditching some abstract ideals about privacy. (My hunch is that this is an issue where you can get wildly different poll results by re-phrasing the question.)

Even if a majority is solidly against this, it might survive — just as 70% support levels haven’t produced a universal background check law. On the one hand you have the threat of abuses that can probably be kept secret; on the other the threat of a terrorist attack that will dominate the news for weeks. Politicians may decide not to take the chance.

Even if we can elect people we believe oppose such programs … well, we thought Obama did too.

So I’m about to say something significantly more radical than you’re used to reading on this blog: I don’t see this changing without direct action, and probably not without monkey-wrenching. Somehow — and I’m open to suggestions about how — ordinary people have to make this kind of surveillance not work, and frustrate and embarrass the people who try to implement it.

Should it come to that? Yeah, I think it should. I know the spies think they’re keeping us safe from terrorism, and God knows I don’t support terrorism. But long-term, I believe the surveillance state itself is a bigger threat than what it claims to be protecting us from.

To get yourself thinking in the right direction, I recommend a 2008 young-adult novel by Boing-Boing editor Cory Doctorow: Little Brother (as compared to Big Brother). Turns out you can download it for free. I found it a compelling read, and it does for cyber-privacy what Edward Abbey’s The Monkey Wrench Gang did for the environment a generation ago.

Secret Laws II: It’s just as bad when Obama does it

Perversely, I wish that the War on Terror would give us a poster child, some cute and innocent victim of government over-reach whose picture we could put on placards and wave as we march through the streets. But for nearly 12 years, under both Bush and Obama, the government has been either too smart or too lucky to provide us with one.

Bad posters. Jose Padilla was an American citizen arrested at O’Hare Airport. Before he was charged with any crime, he spent more than three years in solitary confinement, including sensory deprivation and sleep deprivation. Quite likely he had been driven insane by the time he faced trial. But he was a brown-skinned Chicago street thug who, even if he never actually did any acts of terror (and may never have done anything), was a big talker. And they did eventually manage to convict him on a vague conspiracy charge (after he was mentally unable to either defend himself or trust any lawyer), so he doesn’t generate a lot of public sympathy.

Maher Arar was a Canadian/Syrian dual citizen who didn’t officially enter the U.S. at all. We arrested him during a layover at JFK Airport, held him for two weeks, and then shipped him off to be tortured in Syria for nearly a year. Both Syria and Canada say he was innocent, and he was eventually released. Canada awarded him millions in damages, but the U.S. government so far has avoided avoided any legal repercussions by claiming that it can’t defend against Arar’s lawsuit without revealing state secrets. (The torture happened during the Bush years, but the Obama administration is continuing the state-secrets claim.) But Arar isn’t a good poster child either, because he looks foreign, isn’t an American citizen, and wants to forget his whole ordeal.

Anwar al-Awlaki was an American citizen who was targeted and killed by an American drone attack in 2011 in Yemen, a country where we are not officially at war. What label to put on his death — casualty, assassination, execution — is debatable. But it is not debatable that he was charged with nothing and never had a trial. He’s also a bad poster child, though, because he supported Al Qaeda and counseled people like the Fort Hood shooter. The government claims he planned terrorist attacks, but no evidence supporting that claim has ever been made public.

These cases show that something is deeply screwed up. But without a sympathetic face to put on a procedural abuse, it’s hard to get anybody excited. If the government could torture Jose Padilla or kill Anwar al-Awlaki without any legal process, it could do same to you or me. Since we refuse to identify with people like Padilla and Awlaki, though, we don’t feel personally threatened.

Martin Niemöller’s “First they came for …” is one of the most widely abused quotes in current American political discourse, but this is the setting where it makes sense: When you let the government violate the rights of people you don’t like or don’t care about, you lose the principle. Someday you may be unpopular too, and then how will you defend yourself?

Secret laws under Bush. One of the worst abuses of the Bush administration didn’t even produce bad poster children, because it was abstract: They used secret legal opinions to justify their other power grabs.

When it took office, the Obama administration seemed to be rejecting that course by releasing nine secret memos from the Office of Legal Counsel. The memos explained why it was legal for the President to violate treaties, wiretap without warrants, and do just about anything he thought national security required. Jack Balkin summed it up like this:

The President, because he is President, may do whatever he thinks is necessary, even in the domestic context, if he acts for military and national security reasons in his capacity as Commander in Chief.

To understand the power of these memos, you need understand the role of the OLC: It’s essentially the executive branch’s version of the Supreme Court. If you work for any department or agency of the federal government and you wonder whether something you’re doing is legal, you ask your office’s lawyers. If they kick the question upstairs, and then the upstairs lawyers kick it further upstairs, eventually it winds up at the Office of Legal Counsel in the Justice Department. Somebody at the OLC writes a memo, and that memo is then the official interpretation of the law for the whole federal government — at least until somebody sues and the judicial branch starts weighing in.

So if you as a government official believe that the policy you’re implementing is unconstitutional, that’s not for you to say. If the OLC has blessed it, they’re the experts.

That’s a fine system as long as the OLC does its job in good faith and is accountable for its mistakes. But the Bush OLC wrote opinions to justify whatever the administration wanted to do, regardless of the law or the Constitution; and it avoided accountability by keeping its most egregious memos secret, so that non-administration legal experts could not tell the public (or Congress) how absurd they were. I commented at the time:

You never need to classify the fact that 2+2=4. But if you want the government to operate under the assumption that 2+2=5, then you do have to classify it

There is a role for secrecy at the OLC, but only in so far as the facts of the situation are classified. So, for example, if the Pentagon wanted to know whether a proposed weapons system would violate a treaty, a memo answering that specific question might necessarily include classified facts about the system. But a purely abstract memo explaining how the OLC interprets the language of the treaty — there’s no excuse for classifying stuff like that.

In fact, this kind of secrecy violates the oldest, most basic principle of the rule of law: The law must be public. If, behind the scenes, you can interpret the law away or even reverse it completely, then we don’t have the rule of law.

Targeted killing. The hard questions of law happen when two constitutional principles conflict. For example: I have freedom of the press, but my right to publish can be limited by Congress’ power to establish copyrights. I have freedom of speech, but some speech is libel or treason or fraud or pornography. Questions about where the boundaries fall are why we need people on the Supreme Court rather than machines.

The Constitution gives lots of rights to American citizens accused of crimes. The Sixth Amendment says:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

And the Fourteenth says that this is not a narrow right:

nor shall any State deprive any person of life, liberty, or property, without due process of law

This clause has been interpreted as applying to the federal government as well as the states.

On the other hand, the Constitution also gives the government the power to make war. It doesn’t define war, but it’s hard to imagine any definition that wouldn’t include the power to kill people without trials. When an American citizen enters a battlefield wearing enemy colors — as many did during the Civil War — the government’s power to make war trumps the citizen’s right to a trial or any other kind of due process. That’s never been controversial.

But the War on Terror has fuzzed everything up. The enemy isn’t a country or government. Its soldiers don’t wear uniforms. The conflict often does not take the form of “battles” fought on “battlefields”. No one knows when the war might be over or what conditions could end it.

So the boundary between war-making powers and Sixth-Amendment rights is not so clear any more. If the government thinks you might be a terrorist in league with Al Qaeda, when can it kill you as if you were an enemy soldier on a battlefield, and when does it have to prove its case to a jury?

This ties in with a bunch of your other constitutional rights. Are you free to hang around with people the government thinks are terrorists or to communicate with them frequently? Can you work with them on projects that you believe are unrelated to terrorism? Can you put forward ideas that are not themselves treason, but are congenial to people who might be enemies?

And finally: What’s your protection against being killed by a rogue government official who just doesn’t like you? Can he invent a charge of terrorism against you, or exaggerate your real-but-harmless connections to terrorists?

As unsympathetic as he was in many ways, Anwar al-Awlaki exemplified all those issues. He wasn’t on a traditional battlefield when we blew up his car, and while he undoubtedly had some relationship to Al Qaeda, the government never had to back up its claims that he had an operational role in terrorism. Here’s what I wrote at the time of his death:

Al-Awlaki is dead because the President signed a piece of paper saying that he was a bad man. I suspect he probably was a bad man, so it’s hard to be all that broken up about his death. But in theory, the President (or some future president) could sign a piece of paper saying that I’m a bad man too. Wouldn’t it be nice to have some due process about that?

Secret laws under Obama. You know what the answer to that question is? It’s a secret. There’s an OLC memo describing when the president can order a hit on an American citizen, but it hasn’t been released to the public, or even to Congress. The House and Senate Intelligence Committees just got it, after asking for years. 

So that’s the state of transparency on this issue: The boundary between the government’s war-making power and the citizen’s right to trial is secret.

In a letter to CIA-Director nominee John Brennan, Senator Ron Wyden (D-Oregon) says:

I believe that every American has the right to know when the government believes it has the right to kill them. 

The Obama administration disagrees. Wyden has raised another question I hadn’t even considered: Does the government owe a citizen the right to surrender?

Think about it. The process that puts names onto the kill list is secret, so you might not know you’re on it until you se the drones circling. What if you want to turn yourself in? What if you think this is all a big mistake and you want to clear your name? If you’re not actually pointing a weapon at someone at the moment, aren’t you due that much process?

These are not questions about weapons systems or the identities of secret agents. They are abstract questions of law, that could and should be debated in public. If the administration has any reason for dodging that discussion — beyond simple embarrassment at the flimsiness of its justifications — it isn’t telling anybody.

Shadows Cast By the Petraeus Scandal

I feel the same way about David Petraeus’ infidelities as I felt about President Clinton’s: Unless hypocrisy is involved (as when Speaker Gingrich pushed to impeach Clinton while carrying on an affair himself), I’m content to let public figures have messy private lives. As much as I love gossip, let’s not pretend it’s news.

But if the media spotlight trained on General Petraeus’ bed isn’t illuminating anything I consider important, it has cast a few interesting shadows. The Onion called attention to one: Nation Horrified To Learn About War In Afghanistan While Reading Up On Petraeus Sex Scandal. Let’s look at a few others.

The surveillance state is eating its own. In the post-privacy era of the Internet and the Patriot Act, the FBI has become the Eye of Sauron: Once its attention has been drawn to you, it will soon know your secrets and the secrets of all your associates, whether or not anyone has committed a crime.

Glenn Greenwald lays out just how much investigation resulted from just how little probable cause: A friend of an FBI agent gets some mildly disturbing anonymous emails, and before you know it (and apparently without needing any warrants), the FBI is reading personal messages of the head of the CIA and his successor four-star general in Afghanistan. And when the agent decides that his superiors aren’t doing enough with the dirt they’re turning up, he takes it to the administration’s enemies in Congress. Greenwald sums up:

Based on what is known, what is most disturbing about the whole Petraeus scandal is not the sexual activities that it revealed, but the wildly out-of-control government surveillance powers which enabled these revelations. What requires investigation here is not Petraeus and [General John] Allen and their various sexual partners but the FBI and the whole sprawling, unaccountable surveillance system that has been built.

Rachel Maddow wonders what J. Edgar Hoover could have done with this kind of power, and raises a worthy question: Once politically embarrassing dirt has been dug up, who decides who gets to see it? Congress is complaining about being uninformed, but should it have been informed?

Mother Jones’ Adam Serwer details just how unprotected anyone’s online privacy is: Whatever you store “in the cloud” — emails, drafts of documents, pictures — is available to the government with the permission of Google or Yahoo or whoever the cloud-tender happens to be.

The Constitution protects you from unreasonable search and seizure by the government. It doesn’t stop third parties from sharing personal information you willingly give them. … If you had a bunch of old letters in a worn shoebox under your bed, the FBI would need a warrant to get them. But if those same letters are online, in your password-protected email account, and they’re more than six months old, the FBI doesn’t need a warrant to take a peek.

(If you really want to get nerdy about the legal side of this, read the EFF’s email privacy primer.)

Serwer thinks the Petraeus scandal is our best chance to restore some meaningful restraints:

Being the head of the CIA or a decorated war veteran didn’t entitle Petraeus to any more privacy than the average American. But if the ruin of someone as high-ranking and well-regarded as Petraeus can’t get Congress thinking about reining in the surveillance state, it may never happen.

And Greenwald agrees:

there is some sweet justice in having the stars of America’s national security state destroyed by the very surveillance system which they implemented and over which they preside. As Trevor Timm of the Electronic Frontier Foundation put it this morning: “Who knew the key to stopping the Surveillance State was to just wait until it got so big that it ate itself?”

It is usually the case that abuses of state power become a source for concern and opposition only when they begin to subsume the elites who are responsible for those abuses.

The public usually accepts abusable power as long as most people can draw a bright line between themselves and the victims. As long as the abused are just Muslims or “extremists” or other stigmatized minorities, the rest of us can pretend there’s no real problem. But if David Petraeus can go down, who is safe?

Why does “morality” always mean “sex”? Americans ought to be having lots of debates over the morality of our foreign policy and the leaders who carry it out. Who they are sleeping with should be far down that list.

Esquire’s Tom Junod says that “the real Petraeus scandal” is about “transform[ing] the CIA into a paramilitary organization distinctive for its lethality and lack of accountability”.

Petraeus was the primary driver of a policy that has established killing as the option of first resort in the war against Al-Qaeda and its proxies. He did not institute the data-driven “signature strikes” that have become the CIA’s specialty, but he clashed with the State Department over them, and he was relentless in his efforts to make sure that the inherently expansive Lethal Presidency kept expanding. The revelation that President Obama managed a “kill list” from the Oval Office rightly drew a great deal of attention; but just as remarkable were the killings in which the President had no direct hand.

Atlantic’s Robert Wright raises similar questions:

What if other nations behaved as we do? What if they started firing drones into countries that house people they’d rather were dead? Couldn’t this get kind of out of control? Shouldn’t the U.S. be at least thinking about trying to establish a global norm against this sort of thing (except, conceivably, under well-defined circumstances that have a clear basis in international law)?

Yeah, I know Holly Petraeus is “furious“, as she has every right to be. But what about the Pakistani mothers whose innocent children have died in CIA drone attacks that Petraeus ordered? They’re probably pretty pissed too.

The Petraeus fog machine. Why did we have such a superhuman view of Petraeus to begin with? The Week asks: “Did the Media Fall for General Petraeus’ Hype?” and strongly implies the answer is yes. Wired’s Spencer Ackerman confessed: “How I Was Drawn Into the Cult of David Petraeus“.

Petraeus is just about the only commander who improved his image in Iraq and Afghanistan. Neither war is an American success story, so any credit given to one general comes at the expense of the others, who are left holding the bag for the overall disappointment.

How did he manage that? Maybe it’s time to take another look at the rare Petraeus-criticizing articles, like Michael Hastings’ “The Legend of David Petraeus” in last January’s Rolling Stone. (“The genius of David Petraeus has always been his masterful manipulation of the media.”) Or read Rep. Jan Schakowsky’s account of a 2007 trip to Iraq where congressmen were propagandized to support the Surge.

And there is a hypocrisy angle. Petraeus was a proponent of the Pentagon’s “spiritual fitness” push, which (while carefully framed as non-religious or non-sectarian in theory) in practice means Christian evangelism in the military. (Non-Christian or insufficiently Christian soldiers are suspect, preaches one high-ranking Army chaplain, because “the unsaved have no realization of their unfortunate alliance with evil.”)

Petraeus wrote a prominent blurb for the book Under Orders: a spiritual handbook for military personnel by Army chaplain Lt. Col. William McCoy. (Order 3: “Believe in God.”) The Army’s spiritual fitness test and Under Orders both strongly imply that the non-religious can’t be a good soldiers or reliable team members of any sort.

Chris Rodda may be a bit too gleeful in Petraeus’ downfall, but expresses a sentiment that I (as a fellow unfortunate ally of evil) can’t help but share: “Hey, General Petraeus, how’s that spiritual fitness stuff working out for you?”

Who Can Obama Kill?

Anwar al-Awlaki

The most talked-about story of the week was the NYT’s report of President Obama’s “kill list” of presumed Al Qaeda members who can become the targets of drone strikes.

In some sense we already knew the basics: The United States launches drone attacks that kill people in countries where we are not officially at war. There must be some process that chooses those people, and since it doesn’t include any judicial or legislative process, everyone involved must ultimately report to one person, the President.

Being an American citizen is no protection from this kind of death. We’ve known that since Kamal Derwish was killed in Yemen in 2002 because he was in a car with Qaed Salim Sinana al-Harethi, the suspected planner of the bombing of the U.S.S. Cole. President Obama ratified that part of the Bush worldview when he ordered the death of Anwar al-Awlaki, an American-born Islamic cleric who supported Al Qaeda ideologically, and was alleged to have become active in planning operations against America.

What was new in the article was, on the surface, the amount of detail we got about the process and how personally involved in it President Obama is. No one goes on the list without his personal approval, and he does not simply sign off on the recommendations of his subordinates.

But the subtext of the story was, in some ways, even more disturbing: The only way such a story could be written was with the cooperation of the White House. Numerous current and former administration sources are quoted; they didn’t all go rogue simultaneously. So the White House wanted us to know this stuff.

It’s an election year, so you have to assume the purpose is political. Presumably, the Obama campaign believes that ordering people’s deaths looks presidential. Presumably, getting a more detailed picture of Obama ordering deaths will assuage independent voters who might worry that Obama isn’t tough enough to defend the country.

Possibly, people like me are supposed to be comforted by the seriousness of the process. Actually, I’m not. I had always assumed the process was serious, at least in this administration. I’m sure they go to great lengths to make sure we’re not firing missiles at just anybody.

The problem, which is unchanged from the Bush years, is the lack of checks and balances. Maybe we’ll be lucky, and all future presidents will use this power conscientiously. But as long as the process is secret and unchecked, we are depending on the virtue of the president. All it will take to abuse this power is for one man to become corrupt or sloppy. Any secret executive-branch process that can be established by a president can be disestablished just as easily, without public notice.

President Obama owes us something better than this.

I recognize that the situation is not simple. If all these people were on a battlefield wearing the uniform of an enemy, ordering someone or something to shoot at them would be a normal part of war. The fact that Al Qaeda scatters its members across many countries and mixes with the civilian population does not make them less of an enemy or less deadly.

Yes, the battlefield could be anywhere and the enemy could be anyone. But the Bush formula, in which a battlefield commander’s prerogatives extend to all places and coalesce around the president, is a recipe for an eventual dictatorship and a reign of terror. In the long run, I am more afraid of such an omni-empowered president than I am of the terrorists.

And while I respect President Obama’s desire to take personal responsibility for these deadly decisions, if such decisions are made in the White House, eventually, in somebody’s White House, they will be made for political reasons. Dip in the polls? Let’s kill somebody.

The Founders did not envision this kind of war, and the Constitution was not written for it. But the overall principle of checks-and-balances should still apply. If you want to kill people who aren’t in a Congressionally-approved war zone, especially if they are American citizens, you ought to have to convince someone who doesn’t work for you. And ultimately, you should be held accountable for your decisions by somebody else who doesn’t work for you.

It should never be legal for one person, checked only by his subordinates, to order your death. That seems like an absolute minimum.

Glenn Greenwald Lays Out the History of “Elite Immunity”

If you’ve been reading Glenn Greenwald’s columns at Salon (or reading a Greenwald-influenced blog like the Weekly Sift) you won’t be surprised by anything you find in his recent book With Liberty and Justice for Some: How the law is used to destroy equality and protect the powerful.

Still, I found it striking to see so many individual issues laid out together and presented as a progression. It’s easy to get outraged at any one of them — say, that banks are foreclosing homes illegally and yet no bankers are going to jail — and miss the overall point: We are losing the rule of law.

If you are rich enough or powerful enough, you can break American law — either with complete impunity (like, say, Dick Cheney) or maybe paying wrist-slap fines that are a reasonable cost-of-doing-business (like Bank of America). What’s more, if anybody thinks you should be punished the way ordinary people are when they break the law, media pundits from the Right and Left alike will set them straight: Leona Helmsley was right; like taxes, the law is for “little people”.

It’s tempting to think things were always this way, but they really weren’t. This has all happened in living memory. Yes, the rich and powerful have always had better lawyers than the rest of us, and they’ve always gotten a little extra benefit of the doubt from judges and police. But never before has American society so completely accepted in principle that different rules should apply to the elite.

Glenn Greenwald traces this back to a single epochal event: President Ford pardoning Richard Nixon after the Watergate scandal forced him to resign. Nixon had resigned before the Senate could hold an impeachment trial, so Ford’s pardon meant that no Nixon trial would ever be held.

At the time the pardon was hugely unpopular, and is probably why Ford lost his re-election bid to Jimmy Carter in 1976. But looking back, the whole affair is kind of quaint. People at every level of the administration below Nixon went to jail, including Chief of Staff H. R. Haldeman and Attorney General John Mitchell. What’s more, the pardon itself was completely above board: Ford announced it in a national speech, and the presidential power to pardon is explicitly listed in the Constitution. The political price Ford paid in 1976 is exactly how the Founders envisioned keeping the pardoning power under control.

It’s hard to imagine anything like that happening now. The Bush administration broke a long list of laws: torture, spying without warrants, lying to Congress, and many others. No one has even been charged with these crimes, much less tried or punished. Like President Ford, President Obama has covered for his predecessor. But he hasn’t issued explicit pardons on national TV. Instead, he has just quietly let the whole thing drop, and occasionally claimed some dubious version of the state-secrets privilege to shut down court cases. Beyond occasional statements that we must “look forward, not backward”, President Obama has never even attempted to justify this policy to the American people.

And the outcry from the mainstream media has been … non-existent, unless you count the mainstream pundits who periodically scoff at the idea that the law should be enforced.

This didn’t happen all at once, and the successive chapters of Greenwald’s book present the gradual drift away from the rule of law. Watergate was followed by Iran-Contra, where once again pardons were issued. This time, though, it wasn’t just the president (Reagan) who was protected. President Bush the First pardoned high-ranking officials a level or two down from the president (like Defense Secretary Caspar Weinberger). In this way, Bush guaranteed that the accusations would never reach the president (or himself, in his previous role as vice-president).

In the Bush II administration, the pardon was issued by the very president whose administration was under suspicion. Scooter Libby was convicted of perjury and obstruction of justice in the CIA leak scandal, but never served time — and so was never tempted to flip on his boss, Vice President Cheney. (Greenwald points out this important fact about the Plame Affair: It only reached the point it did because another powerful institution — the CIA — insisted on pursuing the matter.)

Today, President Obama’s justification for drone strikes like the one that killed American citizen Anwar Awlaki is still secret, but seems unlikely to stand up to scrutiny. (Read the Wikipedia article on targeted killing and see if the line separating it from assassination makes any sense to you.) Obama is undoubtedly counting on his successor to continue the tradition of letting things drop.

Elite immunity entered the private sector with the telecom immunity bill. Telecom giants like AT&T illegally cooperated with warrantless spying of the Bush administration. Lawsuits against the government had already been closed off by state-secrets claims, which denied victims standing to sue. (If you couldn’t prove you’d been tapped, you couldn’t file suit.) But customer lawsuits against the telecoms were still possible and could have cost the companies billions if they lost — which they would have, because they clearly broke the law. But in 2008 a Democratic Congress passed a bill granting them retroactive immunity.

From there, not prosecuting Wall Street for laws broken during the housing bubble or the banks for foreclosure fraud seemed almost reasonable.

During this whole progression, the arguments have built on the one President Ford made: Whatever has happened, it’s time to put it all behind us. (Greenwald suggests trying that argument the next time you’re pulled over for speeding.) Powerful people let other powerful people off the hook, not for their benefit, but for ours, so that we don’t have to go through the ordeal of watching them be tried and punished. (That would be a good argument to try if your spouse catches you in an affair. Uncovering the truth would be too much of an ordeal for her and the kids. Best to let it all drop.)

But since no one is punished, the problem never gets behind us: Elite disrespect for the law only grows, guaranteeing that more laws will be broken in the future.

By pulling all these issues together, Greenwald is making an important point: Each example by itself is a partisan issue, but elite immunity is bipartisan. The powerful in government, industry, and the media are all coming to see themselves as members of a single privileged class. More and more, they close ranks against any attempt to punish crimes committed by one of their own.

Execution Without Trial

Anwar al-Awlaki is dead. Good news? Bad news? It’s complicated.

Al-Awlaki was a major figure in Al Qaeda in Yemen, where he was killed on Friday by a missile fired from an American drone aircraft. But he was also born in America and still held American citizenship.

He was a radical Muslim cleric whose followers might have included Major Nidal Malik Hassan (who killed 13 people in the Fort Hood Massacre of 2009) and Faisal Shahzad (who unsuccessfully planted a car bomb in Times Square in 2010). Maybe. At least, we know Major Hassan regularly corresponded with al-Awlaki and Shahzad found his writings inspiring.

And that points to the second complication: Al-Awlaki was an idea guy, a religious leader whose teachings inspired and justified the violent actions of others. An anonymous American official said, “We’ve been looking at his important operational role.” But looking is not exactly finding, much less proving. Glenn Greenwald comments:

Despite substantial doubt among Yemen experts about whether he even has any operational role in Al Qaeda, no evidence (as opposed to unverified government accusations) was presented of his guilt. When Awlaki’s father sought a court order barring Obama from killing his son, the DOJ argued, among other things, that such decisions were “state secrets” and thus beyond the scrutiny of the courts.

In short: Al-Awlaki is dead because the President signed a piece of paper saying that he was a bad man. I suspect he probably was a bad man, so it’s hard to be all that broken up about his death. But in theory, the President (or some future president) could sign a piece of paper saying that I’m a bad man too. Wouldn’t it be nice to have some due process about that?

Because drone-fired missiles are a crude way to kill people, we also killed some of al-Awlaki’s bodyguards, plus Samir Khan, described by the NYT as “an American citizen of Pakistani origin who was the editor of Inspire, Al Qaeda’s English-language Internet magazine.” Was Khan a bad guy? Maybe. Did he have an operational role too, or did he just Inspire the wrong people?

Rachel Maddow, in a piece Wednesday about the death penalty and prisoner abuse in American jails, summed up the political problem like this (around the 7 minute mark):

This is why it’s hard for anybody to make political hay, to get political traction, out of alleged bad treatment of allegedly bad guys. … The political defense against claims that you are badly treating criminals or suspects or protesters or prisoners has always been to point at those people and say: “You’re taking these guys’ side? These are the bad guys. You’re going to take their side?”

If that’s true for domestic criminals, how much more does it apply to suspected terrorists? If they really did what they’re suspected of doing, then yes, they are the bad guys. If al-Awlaki really was trying to figure out how to park car bombs in Times Square, then who can be sad that he isn’t doing it any more?

I think I’ll let Thomas Paine answer that one. He concluded his Dissertations on First Principles of Government (1795) with this:

He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

If Anwar al-Awlaki can be executed without trial, in a place nowhere near a battlefield, in a country with which we are not at war, then so can I and so can you. It’s that simple.

“But President Obama would never do that to you or me,” I imagine you thinking. And you’re almost certainly right. But I don’t want my life to depend on the President being a nice guy or believing that I’m a nice guy. I want to have rights that are defined by law rather than by the good will of government officials.

I don’t see how to claim those rights without granting that Anwar al-Awlaki has them too.

Or at least he did until Friday.