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What Would Require Explanation at a Tsarnaev Trial?

5:37 pm in Uncategorized by E. F. Beall

In late August, after Dzhokhar Tsarnaev had been incarcerated for allegedly bombing the Boston marathon for four months, without incident, the Obama administration’s Justice Department suddenly decided that his communication with the outside world was too dangerous, and ordered him placed under Special Administrative Measures (SAMs). As is noted in the legal defense team’s motions to vacate them, the excuses the government has offered for them are patently absurd, and so there has been speculation as to what the true reasons are for their imposition.

The speculation which has seemed likely to many is that the isolation of Tsarnaev that goes with the SAMs is designed to break his spirit, so that he would agree to a plea bargain and thereby let the government avoid a trial.

(The trial judge is currently considering the defense request to vacate the SAMs, but seems likely to relax the aspects that deal with the attorneys’ access to their client, while leaving his essential isolation intact. In this connection, there may be a media campaign in process to ridicule the seriousness of the isolation, as in this extreme Islamophobic assertion that Tsarnaev is currently getting “catered meals” and “copies of the Quran and other Islamic texts to brush up on his hatred for infidels.”)

It strikes me, then, that it is a good time to review why the government might want to avoid a trial. The following are issues that it could find difficult to get excluded.

Is the FBI or comparable agency continuing the investigation to discover who actually bombed the Boston marathon?

Two separate detailed analyses, by Baby Blake and by Woody Box, respectively, have concluded that the place where the indictment of Tsarnaev says he left his backpack, allegedly containing the second bomb, was not the point of origin of its explosion. In addition, it has long been noted that the photograph of an exploded backpack that the FBI has represented as having contained the first bomb, does not resemble the backpack worn by Tsarnaev’s brother Tamerlan, who it alleges detonated that bomb.

Let me be clear. Whatever the government might be able to demonstrate about the Tsarnaevs’ activities after the marathon bombings, it would not be able to prove that they caused those occurrences themselves to an unbiased jury. I have offered some speculations as to who might have been the true culprits (here and here), but whoever it was, that person or persons are still out there posing a danger to people and property. Is the government trying to stop this?

(The new Boston FBI chief has said he is committed to further investigation, but he seemed to mean uncovering further suspects connected to the Tsarnaevs. The last we heard a grand jury was still empaneled, but it was concerned to question Tamerlan’s in-laws. Of course, there is no reason to believe that the true culprits had any connection to the Tsarnaevs.)

Why would the brothers drive to the MIT campus just to find someone with a gun they could steal? And if they killed Officer Sean Collier, as the indictment alleges, in order to get his gun, why did they just not take it from its position lying on the ground, where first responders found it?

The story was widely circulated that the brothers killed Collier for his gun but could not get it out of its holster. The problem is that it was not in its holster when the body was first discovered. The government also claims to have forensic evidence for the murder, which of course it would have to produce at a trial to avoid one’s natural impression that the murder of Officer Collier was an unrelated incident.

Why did the alleged victim of a carjacking by the brothers on the night of April 18 say in one media interview that they spoke in a foreign language he could not understand (presumably Russian), but give a list of the subjects they discussed to another publication? Is it really only coincidental that the alleged victim was enrolled at a school where students are recruited for drills, whereas this year’s drill held in conjunction with the marathon was unusually prominent? What is the government’s theory of why the brothers needed the car when they already had one?

Why does the government equate what the indictment calls the “IEDs” that the brothers allegedly threw at police during the encounter of April 18-19 with the “WMDs” that were used for the marathon bombing, given that the former entities did not kill or injure anyone, nor cause damage?

Why was Tamerlan Tsarnaev apparently killed while in police custody?

This question has of course been prominent since the night of his death, which the indictment attributes to being run over by his brother Dzhokhar after being shot in the gunfight with police. A since deleted CNN video shows the arrest of a healthy naked man who virtually everyone who knew Tamerlan says is him. The police have said it was someone else, but have not produced the person. Good luck with that at an actual trial. Also, will autopsy photos show tire tracks on the body matching the tires of the SUV Dzhokhar was driving?

How could the confession Dzhokhar Tsarnaev allegedly wrote on the side of the boat where he was captured state that he would meet his brother in paradise when he had no means of knowing that his brother was dead? (Or, if the government is going with a version that no longer makes this claim, what happened to the version that did?) Where is the pen or marker that he used? How could he have written it in the dark? How could he have written it when seriously wounded?

Why was Dzhokhar Tsarnaev apparently shot in the mouth while in police custody?

The MSM have assumed that he must have sustained this wound during the shootout on the street or while he was being shot at in the boat. However, the medical report clearly states that it was the most severe of a number of wounds, and that he required the extremely strong pain medication Dilaudid. It is unlikely that he would have had the strength to climb out of the boat with this wound. Also, according to the report the bullet entered his mouth at an angle to his face, making it less likely that it could have entered via a shot from any distance away.

Why did the interrogation of Tsarnaev at the hospital where he was taken continue while he was gravely injured and after he had repeatedly requested legal counsel and was denied it? What protocols were the hospital’s medical personnel required to follow to cause them to allow this procedure?

In addition to these questions, another set would arise if the matter of Ibragim Todashev found its way into the trial. This might not happen, but presumably it would the instant the prosecution introduced the subject of the 2011 Waltham murders in an effort to impugn the Tsarnaevs.

What were the circumstances of the killing of Ibragim Todashev in Orlando, Florida on May 22 following the FBI’s investigation of his knowledge of the Tsarnaevs?

Of course at the time the FBI could not produce a coherent version of what happened and since then have clamped down on any possibility of an investigation, through such measures as withholding Todashev’s autopsy. That would be impossible to do if the case were introduced at a trial.

Why has the government continued to claim that Todashev implicated himself and Tamerlan Tsarnaev in the Waltham murders, even after his widow Reniya Manukyan said she had records to prove that Todashev was not in Massachusetts at the time of those murders? And did the FBI or other government agency have anything to do with the fact that her bank later canceled her account without offering a reason?

That does not exhaust the questions the might be asked. (What were representatives of the mercenary organization Craft International, whose backpacks resembled the exploded one touted by the FBI, doing at the marathon? Is it true, as witnesses have alleged, that the FBI seriously harassed Todashev and other members of the Orlando Chechen community?) I have only highlighted those that seem likely to most concern the government, and they indeed look worthy of concern.

If I were the President, reflecting on how the government has handled the worst terrorist attack on US soil since 9/11, I would certainly want to avoid having this material come out. To be sure, I would not be so cruel as to add to the suffering Dzhokhar Tsarnaev has already endured by imposing the SAMs in an effort to break him. Perhaps, rather, it might be appropriate to drop all charges along with offering a generous compensation package in exchange for an agreement on his part not to take legal action.

Guardian: Merkel Is Only One of 35 World Leaders NSA Has Surveilled

1:53 pm in Uncategorized by E. F. Beall

You’ve heard that Germany’s Angela Merkel rang up Obama to complain after German intelligence determined that the NSA “may have” listened in on her cell phone. Subsequently the administration has denied that it does now or ever will surveil her private phone, but has ducked questions about whether it has done so in the past.

Well, the Guardian’s James Ball has just posted another revelation from a Snowden document. A classified memo says that the NSA collected phone numbers of foreign politicians from the Rolodexes of officials at State, the White House, and the Pentagon. (One official supplied 200 numbers.) Of those it obtained, 35 were of world leaders and the NSA immediately started monitoring them.

Presumably three of these are Merkel, Brazil’s Dilma Rousseff, and Mexico’s Enrique Peña Nieto, as we’ve heard before that they were targets. (Maybe FDL should sponsor a lottery where the person with the best guesses as to the other 32 wins a prize when we eventually find out who they are.)

Ball predicts that “the revelation is set to add to mounting diplomatic tensions between the US and its allies.” But of course not all of the 35 will necessarily be allies, so the problem may be even broader than that.

NSA Tapped Personal Communications of Brazilian President and Others

6:58 am in Uncategorized by E. F. Beall

Brazil’s O Globo reported yesterday (I translate):

The US National Security Agency has monitored the content of telephone calls, emails, and text messages of President Dilma Rousseff and of a yet indefinite number of “key advisors” of the Brazilian government.


Besides Dilma, in recent months the President of Mexico Enrique Peña Nieto and nine members of his team were spied upon, when he was only a candidate for the office.

The article says that these items come from a June, 2012 NSA internal presentation, a record of which Glenn Greenwald obtained from Edward Snowden.

The presentation was entitled “Intelligency”(?) filtering your data, Brazil and Mexico case studies.” It consisted of 24 slides which evidently did not include actual examples of the intercepted communications. It was intended for the use of governments in the “Five Eyes” countries (US, UK, Canada, Australia, and NZ). The presenter ended with congratulations on the success of the program.

It seems useful to have this revelation at this moment, for more general reasons than its specific content. Recently, the UK government forced the Guardian to destroy the Snowden records kept in its London offices, and it was revealed the other day that it has asked the New York Times to do the same with material in its possession. Meanwhile, last Saturday the Obama administration suddenly decided that it needed Congress’s input before undertaking a limited military action in Syria; of course that means that Congress will spend a week or so on that issue when it returns next week, and will not have time to discuss the various bills to rein in the NSA that are in the works before the budget crunch arrives later this month.

Obama and the Five Eyes may yet succeed in ending Snowden revelations in the Guardian, the Washington Post, the New York Times, and maybe even in Germany’s Der Spiegel, as well as in squelching significant discussion in the US. But they are unlikely to stop O Globo.

[Note: I'm still reading the article -- an appropriate project for "o dia do trabalho" -- and may add more later. But I want to get this much posted.]

Added 11:30 Eastern: The article also gives some technical details (naming the programs that are involved in the surveillance). It says that according to Greenwald’s interpretation the goal in the Brazilian case is to identify just who are Rousseff’s confidantes. It includes a statement against the surveillance after consulting with Rousseff on the part of Brazil’s Interior Minister Eduardo Cardozo, who, however, says they will wait until the allegation is confirmed before deciding on a course of action.

But I still have more to read.

Added 12:15 PM Eastern: The article cites two more Snowden-Greenwald documents. The first of these describes a power-point presentation entitled “identifying challenges for the future,” also meant to be seen only by the Five Eyes, which asks whether a number of countries including Brazil and Mexico are likely to be “friends, enemies, or problems” during the period 2014-2019. It identifies Brazil and Turkey in particular as emerging nations that are capable of “creating regional stress.”

I’ll get to the last document in a while.

Added 12:55 PM Eastern. The last document reveals that there is a subdivision of NSA responsible for monitoring trade and military issues in countries important to the US economy, so that the US considers “strategic partners,” including Brazil, Mexico, Japan, Belgium, France, Germany, Italy and Spain.

The article concludes by saying that the embassies of the US and Mexico declined comment on the story, and observing that Rousseff is scheduled to meet with Obama in the US in October.

Corrections 8:15 PM Eastern: The documents have no specific examples for Rousseff, but do for Peña Nieto; Eduardo Cardozo is Brazil’s Justice Minister, not Interior Minister.

Obama Tries to get Control of the NSA Story; Will He Succeed?

12:16 pm in Uncategorized by E. F. Beall

Declassifying some previously secret memos so that they can be released in redacted form hasn’t worked. (Unsurprisingly, since we already had many of them in unredacted form from Snowden.) Telling Jay Leno what everyone knew was a lie didn’t work. And of course, before that, sending the Bobbsey Generals to Congressional hearings to say “least untruthful” things didn’t work.

If public opinion on NSA surveillance is not entirely out of control yet, the narrative about it is. It does not take a Sherlock to see that that is why O gave a press conference yesterday.

Other issues were touched on (health care, immigration, gays in Russia), but the main event was clearly the President’s proposals to “reform” the surveillance. In the handy summary of commondreams, these were:

1. Discussing with Congress “appropriate” reforms to section 215 of the Patriot Act (under which phone records are collected in bulk) which will include “greater oversight, greater transparency and constraints on the use of this authority.”
2. Discussing with Congress reforms to the Foreign Intelligence Surveillance Court (FISC). A measure that would give “civil liberties concerns” more ability to challenge government rulings.
3. The NSA appointment of a privacy and civil liberties officer.
4. The creation of an independent advisory group made up of “outside experts” who will be allowed to review the government’s surveillance activities and publish a public report within two months (60 days), and a final report by the end of the year.
5. A new website launched by the greater intelligence community meant to serve as a “hub for further transparency,” to provide interested parties with the “ability to learn more about what our intelligence community does and what it doesn’t do, how it carries out its mission and why it does so.”

O also claimed that he had begun to consider these reforms even before Snowden came on the scene. Some reports on the event that are worth reading include those of the Guardian, RT, and the LA Times.

Concerning the actual merits of these proposals there is little to be said. The stress on telephony metadata collection via Section 215 treats only the first of many revelations of NSA spying revealed by Snowden to Glenn Greenwald and others, such as PRISM, XKeyscore, something called a “backdoor” that Sen. Wyden has highlighted, and the FBI’s attempt to get its own data base independent of NSA through “port reader” software to be attached to internet service providers.

To give the NSA a type of ombudsman would not in itself guarantee that the office represented the public interest as opposed to helping the agency present a facade of acting in the public interest.

“Discussing with Congress” sounds like agreeing on some softball proposals floated by centrist lawmakers at the Senate Intelligence Committee hearing on the last day of July, such as allowing an advocate for the public to argue before the FISA Court without any assurance that the Court would take the argument seriously.

It did not help the President’s case that yesterday his administration also released a black white paper making it clear that the core function of collecting the metadata under Section 215 would remain, a pronouncement that was met with immediate disdain from the ACLU, among others.

It may be that, left to itself, Congress will go along with O’s proposals. Sen. Wyden himself issued a statement yesterday which, while expressing disappointment that O did not deal with the “backdoor” problem, nonetheless concluded by saying:

Overall, I welcome the proposals made today by the President and intend to work closely with my colleagues, including Senators Udall, Leahy, Blumenthal, Merkley and Feinstein and Reps. Sensenbrenner and Lofgren, to ensure that the president’s proposals are strengthened and become law.

On the other hand, Congress may not be left to itself. For the past two weeks the Restore The Fourth organization has been urging people to confront their representatives about the surveillance while they are home for the August recess. And if one can judge from other entries on the Reddit RT4 page, O’s performance yesterday did not go over well, as with these comments on the Wall Street Journal’s coverage of the event. For example, here is SuperConductiveRabbi:

By-the-book damage control.

First they ignore the issue and hope it’ll go away. Then they acknowledge it but downplay the significance. Then they try to marginalize the petitioners and paint them as a fringe group. Then they offer empty, conciliatory promises that have the appearance of a compromise, but don’t actually address the underlying issue. Then they bow down and submit to real reforms. Then you win.

We’re on the conciliatory promise stage. Obama hopes this doublespeak will make those pesky American citizens just shut up. He doesn’t even think that the surveillance programs are a problem! He’s only acknowledged that it’s a problem that we don’t trust them as he does, and his “reforms” are designed to gain public support, not change the real problem.

We need to push twice as hard, because this is the first sign that things can change. One man doesn’t get to decide the operation of this country, the people do. We need to make that clear, and the final decision to neuter the NSA and repeal the PATRIOT act will be out of his hands.

That may be overly facile if, as I have argued, the true purpose of the surveillance has nothing to do with terrorism, with stronger forces than mere bureaucratic inertia arrayed to preserve the monitoring of US people. But in that case the effort to overcome them will at least be educational.

Stay tuned.

Congress Partially Notices NSA Surveillance, Then Goes On Vacation

5:11 pm in Uncategorized by E. F. Beall

It all seemed so promising just a little over a week ago. On July 24 the House only narrowly defeated (217-205) the Amash Amendment to the next military spending bill, which would have cut off funding for the NSA’s collection of telephone metadata, which was the first secret program revealed by Edward Snowden through Glenn Greenwald. This effort capped a flurry of bills aimed at reining in the surveillance that were introduced, at least, in June and July (h/t Shahid Buttar). (Add: Holt Bill to repeal the Patriot Act and FISA Amendments Act, introduced July 24.)

To be sure, at least some here at FDL thought the vote was Kabuki (see the comments thread here). However, these sophisticates did not explain how their hypothesis squared with the report that Nancy Pelosi aggressively campaigned against the measure, with no hint of backing off on some members just enough so as to ensure a close vote. Nor did they explain why the supposed theatric presentation dictated that a majority of the Congressional Black Caucus, including its most prominent members, would go against their nominal racial leader in the White House and vote in favor of the amendment.

Most importantly, the proponents of the theory that the vote was rigged failed to dampen the enthusiasm of the Congressional advocates of reforming the NSA. Especially, a hearing at the Capitol was scheduled for the last day of the month specifically for the purpose of giving NSA critics a chance to expound on their concerns.

Still, the nay-sayers might as well have been right: A week later the movement was all but dead, as the Congress got out of Dodge.

For one thing, the erstwhile leader of the Democratic Party decided he wanted to chat with those of his troops who were specifically members of the House on the day the critics hearing, mostly involving House people, was to happen. Whether because no one wanted to buck his prestige or because it was sensed that the cause was now hopeless, the hearing was cancelled.

Given that fact, the one event meriting a bit of discussion is the Senate Judiciary Committee’s hearing on the surveillance held on July 31. The first hour and fifty minutes was taken up with the testimony of four administration witnesses and questioning of them by Committee members.

The tone of this session was, I feel, set not so much by the opening remarks of the Chairman, Sen. Leahy, as by those of the ranking minority member, Sen. Grassley. He said (beginning about 7 minutes into the C-SPAN video) that privacy and security are “equally important” (in addition to an insistence that “foreign terrorists” have no rights under the US Constitution, and a gratuitous swipe at Clinton administration policies for supposedly keeping 9/11 from being thwarted). Thus the notion of the zero-sum game involving the two abstractions was firmly in place, and any notion that it represents asking the wrong question was ruled out.

And the actual importance of this session, at least to the administration, might be measured by the representatives it sent. NSA Director Alexander preferred to spend the day at a hackers convention in Las Vegas (where one hears he was not especially well received), and so Deputy Director John Inglis did the honors. DNI Clapper did not show, but his office’s legal counsel Robert Litt did. The Attorney General and the FBI were also represented by deputies.

The discussion itself was virtually entirely on the specific NSA program whereby telephone metadata is collected in bulk and on the supposed restrictions on it use. The collection of internet information was not mentioned. Nor, especially, did one hear of the June 20 Guardian revelation that the exceptions to the rule that warrantless investigation of the communications (telephone or internet) of individuals not be applied to US persons are so numerous as to defeat the rule in practice.

Within that framework, the officials gave the now standard talking points that the telephone metadata program has been endorsed by, and is overseen by, all three branches of government, and that it has been instrumental in disrupting numerous terrorist plots, such as the Zazi subway bombing case (which has been refuted numerous times as something where NSA-derived intelligence was not in fact key).

To be sure, when pressed for examples where disruption of a plot absolutely required the NSA input, Inglis could only come up with one: the discovery of two San Diego men sending money to Somali terrorists.

Nonetheless, and despite some rhetorical comments from Chairman Leahy questioning the utility of such a program, the discussion was promptly diverted into “reforming” it, in two ways. One way was to make it more “transparent” by declassifying some decisions by the FISA court, and another way was to introduce a public advocate in the court’s proceedings to counter arguments by the government’s lawyer. The witnesses pronounced the government willing to consider such reforms, which was hardly surprising since they would not change the basic issues: the capture of personal information (such as, say, the fact that you called an abortion clinic) without a warrant, and the further warrantless investigation of you if your metadata comes under one of the numerous exceptions to the rule against targeting US persons.

The last half-hour of the hearing was taken up by testimony from and questioning of three more witnesses, of whom only one needs mention here. At the 1 hour and 56 minute mark an ACLU representative said that surveillance affects the behavior of the populace in negative ways, and that Congress should pass legislation banning bulk metadata collection, among other things. At one point he was asked if it would alleviate any his concerns if FISA court proceedings were made adversarial, but otherwise he was ignored.

Thus the July 31 hearing of the Senate Judiciary Committee. (Other summaries can be found in the NY Times and the LA Times.) The fact that the NSA Programs (the one discussed and others) do violence to the US Constitution was entirely lost, and needless to say, the fact that their actual purpose is not combatting terrorism in the first place (as I argue here) never saw mention.

With that, Congress went on vacation, and the administration issued a mysterious terror warning, for the month of August. Interpret either point as you will.

Fourth Thesis On The Snowden Disclosures

5:20 pm in Uncategorized by E. F. Beall

In a post earlier this month I argued the following three theses:

1. The revelations by Edward Snowden published in the Guardian and elsewhere imply that the National Security Agency records virtually every electronic communication of persons in the US. This mass surveillance is to be opposed.

2. Neither Snowden’s personal characteristics or motivation nor those of the journalists that have published his material are relevant to the issue stated in Thesis 1.

3. Theories that Snowden is some sort of fake and that his revelations are meant to divert our attention from other matters are to be rejected.

Here I will argue a fourth thesis:

4. The official position that the purpose of the surveillance noted in Thesis 1 is to combat terrorism is false, and should be exposed as such.

Of course, as soon as the surveillance became known in early June officials of the intelligence agencies and of the congressional committees that nominally oversee them rushed to cry terrorism. For example, as has been widely reported, the chief of the NSA itself, General Keith Alexander, asserted to a congressional committee that “over 50 terrorists plots” have been disrupted by the surveillance programs since 9/11.

A small number of individual cases have been mentioned, most prominently that of Najibullah Zazi, who was caught in 2009 before executing a plan to set off explosives in the New York City subway system. As has also been widely reported, according to all three of Alexander, the Chairman of the House Intelligence Committee Mike Rogers, and the Chairwoman of the Senate Intelligence Committee Diane Feinstein, the NSA email monitoring program PRISM provided a crucial step in identifying the plot.

The problem is that these claims range from the greatly exaggerated to the utterly false. Senators Ron Wyden and Mark Udall, who have access to classified information, have said in opposition to the “50 plots” claim that they have seen nothing in the area of disrupting terrorism that could not have been provided by normal inelligence methods. The Zazi case claim is refuted in the Guardian, and more thoroughly in alternative media such as willyloman. What was actually identified at Zazi’s trial as the crucial link in the case was British intelligence, not PRISM, passing on a key email address to their US counterparts.

Actually, most of the plots that have been disrupted have been those the FBI itself initiated by recruiting some foolish Islamist-oriented young man, supplying him with fake explosives, and arresting him to great fanfare when he throws the switch.

In the meantime, what is really telling is that the NSA surveillance did not prevent a number of actual terrorist acts since 9/11 (a speaker at the July 4 Restore the Fourth rally in Washington read a list of about ten of them), of which the most well known is the twin bombings at the Boston marathon on April 15 of this year. It occurred even though the local DHS-initiated “Fusion Center” had reported a week earlier that the area where the explosions would occur would be vulnerable.

(I hasten to add that in citing the Boston example I do NOT mean to identify with a certain sentiment that it could have been averted if only the FBI had kept tabs on Tamerlan Tsarnaev after a 2011 interview with him. Although it is popularly assumed that the Tsarnaev brothers carried out the bombings, no one has actually shown that they did. I only mean that the NSA surveillance programs failed to intercept whoever did carry out the attack.)

Some might say that these failures only show that the programs have been less efficient than their defenders have claimed. But let us recall that government representatives such as General James Clapper, the Director of National Intelligence, denied that the massive surveillance even existed until it was no longer possible to do so. If they lied about that, why should we believe them when they say that the purpose of the surveillance is to combat terrorism?

We should not. The NSA’s track record on the issue it says it is about is too weak to believe that that is the actual issue. The purpose of the surveillance must be something else.

What might that purpose be? Well, we don’t know because it’s a secret. However, we might obtain a clue by examining what some other agencies nominally concerned with national security have been doing. One of these agencies is the FBI and another is the DHS. By means of FOIA requests, the Partnership For Civil Justice Fund was able to obtain two troves of documents relevant to the question, one in December 2012 and the other in April 2013, each one running over 250 pages. The first set showed that the FBI had been treating the 2011-2012 Occupy Wall Street movement in particular as a potential terrorist threat in spite of recognizing its profession of non-violence. The second set shows how the DHS coordinated surveillance activity with respect to Occupy and other peaceful protests in a number of cities.

And that might be only the tip of the iceberg. An FDL post on the NSA a couple of days ago, by joe shikspack, included a number of links near its end to documentation of surveillance or outright harassment of groups ranging from groups like Greenpeace to a couple selling clothes with socialist slogans affixed, by agencies ranging from the FBI to the Pentagon.

In short, virtually every other government agency has been monitoring progressive activists. Are we to believe that the NSA is exempt from this phenomenon? Probably not.

In any case, the agency’s true purpose cannot be to combat terrorism, or it would have done a better job at that. And to concede to it that it fights terrorism while trying to scale back its massive surveillance is to accept the pernicious idea that there is a zero-sum game between security and freedom, so that one must sacrifice some of one to ensure that we have a decent measure of the other. Or “the pendulum has swung too far toward security and we should swing it the other way a bit.”

No, it is time to call out the officials who tell us that the surveillance is necessary to combat terrorism; it is time to proclaim that they are liars, pure and simple.

Three Theses On The Snowden Disclosures

4:12 pm in Uncategorized by E. F. Beall

1. The revelations by Edward Snowden published in the Guardian and elsewhere imply that the National Security Agency records virtually every electronic communication of persons in the US. This mass surveillance is to be opposed.

Members of the Obama administration, after first denying that the NSA collects anything at all from “US persons,” have subsequently said that only metadata is collected, and that a communication is only investigated further under special circumstances which are narrowly drawn. However, in the first place collection of the metadata alone is an invasion of privacy which can easily reveal personal information about the communicant. In the second place two 2009 Justice Department memos detailing the special circumstances show that they are so extensive as sto allow virtually any communication to be investigated after all. (It is possible in principle that reforms of the guidelines subsequent to 2009 have ameliorated this situation, but one must assume that they have not absent explicit clarification from the administration.)

Members of the administration have also said that the program is necessary to prevent terrorism, and have claimed that as many as 50 plots have been disrupted. However, Senators Wyden and Udall, who have access to classified documents, have said that they know of no terrorist plots that could not have been thwarted by conventional investigative means. Moreover, there have been a number of attempted or executed terrorist acts (other than those instigated by the FBI in sting operations) that have occurred in spite of the NSA surveillance. (A list of those that have occurred since September 11, 2001 was read by a speaker at the July 4 Restore the Fourth rally in Washington, D.C.)

The surveillance is to be opposed on constitutional grounds in that it patently violates the Fourth Amendment of the U.S. Constitution against unreasonable searches, It is to be opposed on practical grounds in that it can be used, and most likely has been used, against nonviolent protestors, collecting dossiers for potential use against them in ways such as prejudicing potential employers or compromising applications for benefits.

Those who are indifferent to this issue because they do not believe they “have done anything wrong” are displaying poor citizenship because they are also indifferent to the US Constitution. And some activity that they pursue that is presently legal may not always be so, in which case they are at risk of being labeled a potential miscreant with respect to the activity in question.

More subtly, some appear lukewarm at best to active opposition to the surveillance in contexts where other ills of the US are not explicitly addressed. Or I take it that this is what one FDLer means in saying, “focusing entirely on government surveillance, or particularly on NSA surveillance, misses 90% or more of the whole story” (comment #59 here). But refusal to participate when the opposition is predicated in such contexts would reflect an unrealistic attitude toward the possibility of change. To take an example, the mass demonstrations in Washington during the Vietnam era that were organized around the single issue of ending the Vietnam War had some effect in doing so, but did not prevent participants from acting on other issues in other venues.

2. Neither Snowden’s personal characteristics or motivation nor those of the journalists that have published his material are relevant to the issue stated in Thesis 1.

Of course, the government’s claim that Snowden not only broke the law, but violated the Espionage Act of the World War I era, will be viewed as excessive by most people beyond the leaders of the intelligence agencies and their enablers in the relevant Congressional committees; still, many believe he committed a “crime” and therefore should be punished. I will not argue against them here (although I do disagree), but I insist that this view should not stand in the way of opposing the surveillance he disclosed in accordance with Thesis 1. This wholesale sweeping up of the electronic communications of every person in the country is a much larger issue than that of what should happen to a single individual.

Beyond the cries of “traitor,” there have been slightly less unsubtle assertions that Snowden has negative personality characteristics, in particular “narcissism.” But again, suppose he is a narcissist: what does that have to do with the importance of the information he has provided?

From another direction, the eyebrows of some at FDL have been raised because Snowden has betrayed libertarian tendencies, which are naturally anathema to progressives. But again, what does that have to do with the importance of the information he has provided?

But also, the point applies equally to those who lionize Snowden as a cult figure. The idolatry has reached the point of the deported Russian spy Anna Chapman tweeting a suggestion that they marry. I’m sure Snowden is gratified by all this attention, but he himself said in the original interview with the Guardian that he was neither a traitor nor a hero, and that the point was his message.

A corollary is that the tabloidal fascination with the cat-and-mouse game of Snowden’s flight from US authority and the doggedness of the latter’s pursuit has grown beyond all bounds. Just today a post on the FDL front page concerned a mere rumor that a deal had been reached for Snowden to secure asylum in one country; it collected over 100 comments (a good half of them subsequent to information coming to light that the rumor was false). What does this have to do with the massive surveillance that he has said is his primary concern?

3. Theories that Snowden is some sort of fake and that his revelations are meant to divert our attention from other matters are to be rejected.

In mid-June Naomi Wolf posted her “creeping concern that the NSA leaker is not who he purports to be,” and suggested that his story was actually inspired by the government in order to instill fear into people that their every move was being watched. Her view is based largely on her subjective impressions of his manner in the Guardian interview. Her post was promptly re-published by several fringe websites like

That idea did not get much traction, but a number of FDLers have suggested an alternative, that Snowden is part of a “limited hangout.” If the standard understanding of that phrase is meant, he has revealed tidbits of secret information in order to distract attention, while the intelligence establishment guards much more explosive material which was in danger of being revealed. And indeed, there surely must be more information that Snowden has not yet revealed, such as the undocumented assertions of Bush era whistle-blower Russ Tice, that Supreme Court justices and even the potential Illinois Senator Barack Obama were surveilled.

Another idea expressed by one FDLer is that the Obama administration orchestrated the revelations in order to take attention away from what were the more serious (to Obama) current scandals over Banghazi, the AP, and the IRS (see comment #2 here).

A component of both of these theories has been the position that Snowden has not really revealed anything that was not already known “to those who were paying attention.”

However, the first point to be said against the theories is that the proponents have not shown that they already knew the graphic details of the programs going under the names PRISM, FAIRVIEW, etc. that Snowden has spelled out.

But most importantly, these theories are betrayed as unpersuasive, if not absurd, by the fact that the government has pursued the person who they say is its collaborator to so obsessive a degree that it has now gotten the continent of South America angry with it for interfering with the travel of one President on the strength of a rumor that Snowden was with him. (The only way these theories could be saved is with a hypothesis that the false story was orchestrated by some element within the government that is not under the administration’s control and is unknown to it. But that is far-fetched.)

No, Snowden is who he says he is, and his information is what he says it is. It is up to us to do something about it.

After the Restore the Fourth Rallies: What Next?

1:50 pm in Uncategorized by E. F. Beall

Restore the Fourth Rally – San Francisco, July 4, 2013

If nothing else, the nationwide “Restore the Fourth” rallies on July 4 caused a resurgence in interest in the 4th amendment as measured by internet searches for “Fourth Amendment.”` See this graph, which shows that according to Google Trends, in late June interest in the Fourth Amendment had fallen to less than 20% of what it had been when the surveillance issue first broke, but went back up to 80% on July 4.

Of course a more conventional way to measure impact is by media presence. There was quite a lot of mostly respectful coverage, especially in local news outlets, and especially considering that the typical turnout was 100 people, not 1000. I give links to a sampling @ comment #63 here, and RT4 itself gives a more extensive set of links here (with yet a few more in the comments). For example, in a quite extensive article the Cedar Rapids Gazette says:

As Iowans celebrated the Fourth of July on Thursday, local and national groups gathered to pay respect to a different kind of “Fourth” – the Fourth Amendment.

Roughly 35 protesters gathered at Cleveland Park in Cedar Rapids on Thursday to make signs and organize. At noon, the group marched over four miles through downtown, hoisting their signs and cheering to honking cars, before stopping at Greene Square Park for a several-hour rally.

[An organizer] said today’s rallies are just the “launching event” for the movement in Iowa. He said they will continue to organize, and hope to be involved in a potential “Million Man March to Washington, D.C.” in the future.

Now that’s what I’d call capturing the enthusiasm. And in general it is clear that many, many USians heard about the events.

But what now?

Here is what the leaders of the RT4 organization itself say they are doing:

- Planning, coordinating, and promoting future nationwide protests like those on July 4th.

- Planning, coordinating, and promoting a massive one-city protest in Washington D.C.

- Phone call, petitioning, and letter-writing campaigns directed towards both Congress and state governments.

- Exploring more local spheres of influence such as town hall meetings.

- Political lobbying in defense of the 4th Amendment.

- Legal action in defense of the 4th Amendment.

These certainly sound like worthy activities. Some might think the effort should be broadened to include, say. a campaign to get General Least Untruthful prosecuted for perjury, or a demand that the US apologize for interfering with the Bolivian President’s travel. However, the organizers would object that such issues would narrow the appeal of the group’s efforts, and they would be right.

That said, if RT4 is going to lead the national movement against the surveillance state (and that is what it looks like), progressives are going to ask some questions centering around the political/ideological orientations of the leaders. I know the local coordinator for DC, but at the national level, apart from the media coordinator Douglas MacArthur (a name which itself sounds staged), as far as I have seen they are only known by the terms contained in their internet addresses.

In this connection I worry a bit about two particular organizations. The first is the Libertarian Party. It actively used at least the DC rally as a recruiting tool, with people passing out literature and one speaker urging us to vote for it. (And it will have been fertile territory: The typical rally-goer looked to be a millennial working at an internet start-up who is naturally concerned about online privacy but who has never even met an African-American single mother who works two jobs to feed her children and is worried about losing her food stamp benefit.)

I think Progressives should certainly work with Libertarians on common areas of interest, as long as the activities are not controlled by the latter. Any of the former who have time to attend planning meetings (which does not include me) should demand that speeches at future events refrain from appeal to narrow sectarian interests.

The other organization that concerns me is a group called Get FISA Right. Its website openly states that it began as a group of Obama supporters in 2008, and contains nothing to suggest recognition that he has since become part of the problem. It seems connected to the Montgomery County (Maryland) Civil Rights Coalition (whose representative spoke at the DC event), since its account of the day is taken from the latter’s blog.

People can disagree on whether the goal is to reform FISA or abolish it. However, we should not tolerate any Van Jones-style effort to contain the movement against the surveillance state within the Democratic party, like what happened at the national rally against the Keystone Pipeline in Washington in February, where Green party members were not allowed to speak on an issue where they had surely been prominent.

But I only wanted to mention these points as a caution. The DC rally also had Code Pink and the Institute for Policy Studies, who will be co-opted by neither the Libertarians nor the Democrats. Let us look forward to a productive movement against the destruction of the Fourth Amendment.

I’ll leave you with the contribution of WaPo’s Sunday humorist Gene Weingarten, “Give me a good treason.” Read the rest of this entry →

Restore the Fourth — An Open Thread

1:14 pm in Uncategorized by E. F. Beall

Photo from the Chicago rally

From 12:00 to 2:00 PM (Eastern) today 300 people gathered at McPherson Square, three blocks from the White House in Washington, DC, and shouted “Restore the Fourth.” One would like to believe President Obama heard us.

In any case, this was an energetic crowd, overwhelmingly young but with a sprinkling of geezers such as yours truly. As to politics, libertarianism was a heavy presence (two speakers from the formal Libertarian Party and one from the Cato Institute), but progressives were there (one speaker from the Institute for Policy Studies, among others), as were representatives of the Greens, Code Pink, and I saw one man in a LaRouche T-shirt. (The organizer herself told me she is a not particularly political feminist.) All these tendencies were uniting to demand restoration of the Fourth Amendment to the US Constitution and an end to the surveillance state.

The high point was the appearance of the one whistle-blower who is not presently jailed or exiled, Thomas Drake, who gave a pep talk appropriate for the occasion. The best actual argument was that of a Libertarian candidate for State office in Virginia, who, as against General Alexander’s 50 foiled plots that he can’t tell us about, read a list of ten or so actual terrorist events since 9/11 that the NSA did nothing to stop. Statements were read from Sen, Rand Paul, former Congressman Dennis Kucinich, Congressman Alan Grayson, and former governor Gary Johnson. (Kucinich’s was the best, ending wittily with “If you see something, say something.”)

Due homage was paid to Edward Snowden, as well as Bradley Manning and the late Aaron Swartz, but everyone was clear that it was their revelations that were the issue. Moreover, several speakers stressed that this rally must be only the beginning: further action is needed.

The one sour note, I thought, was when the other Libertarian speaker correctly said that the Patriot Act and NDAA must be repealed, but then equated this with voting Libertarian, an unnecessary bit of sectarianism. Other than that the rally was an inspirational coming together of various political tendencies around a worthy goal.

That was my experience. Tell me yours: it’s an open thread.

To start it off, marym in IL supplied my last thread with this photo from Boston.

Read the rest of this entry →

“Restore the Fourth” Protests on July 4

6:11 am in Uncategorized by E. F. Beall

A group called Restore the Fourth (as in Fourth Amendment), developed via the Reddit website, is organizing rallies in many US cities on this Thursday, July 4, to protest the recently revealed unconstitutional surveillance being carried out by the Obama administration.

Main Page (with endorsements, provisos, and further info)
List of Cities (with links to where, when, etc.)