Why We Can’t Trust Our Government

As they so typically do, the media has gone baying after Edward Snowden only to leave behind the story that matters. That story asks just how much truth are we getting from this government and to what extent is the American public is being spied upon. We’ll stick to that.

Let’s go back to when Gen. Keith Alexander, the head of the National Security Agency, said more than 50 terrorist attacks had been disrupted owing to the surveillance programs. He volunteered two instances to the House Select Intelligence Committee, and promised on a Monday to declassify and present a list of others “on Wednesday”. That Wednesday came and went and we were told nothing further. The only added mention of that list of the other 48 or so plots that the NSA claims were aborted by its secret spying was that NSA decided it should stay classified.

So all we know of what has come of this massive program of capturing and storing everyone’s phone records in a Pentagon-sized complex in the Utah desert is two alleged instances of intrigue interruptus.

We already have James Clapper, the director of national intelligence, lying to Congress in March. Asked by Ron Wyden (D-Or), ”Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”, Clapper answered with an unequivocal “No sir, it does not”, as heard in this video. He would later try to wriggle free from his lying saying that this was “the least untruthful answer possible”.

It follows that we are under no obligation to assume that Gen. Alexander has been telling Congress the whole truth and nothing but. In fact, in 2012, Gen. Alexander told Fox News that the NSA does not “hold data on U.S. citizens,” which has now been shown to be clearly false. And just this May he told Reuters, “The great irony is we’re the only ones not spying on the American people” (ibid).

So in light of this prevarication, here’s what we find puzzling: When the government aborts a terrorist plot, it has been the typical practice to trumpet its successes to the media, even going public immediately, as with the biggest of all when late one night President Obama went before the cameras to declare OBL dead. The government hasn’t been shy about wanting you to know it is keeping America safe.

Lists on the Internet attest to the public knowledge of these victories over terrorists. Examples can be found here, here and here. (Many of these were simply failed attacks, it is worth noting, not the result of surveillance.)

So what is it about Alexander’s 50 that had to be kept under wraps all this time compared to these others? If a couple of deviants in Ypsilanti were nabbed for plotting to take out a bridge in Yakima, what is compromised by touting that triumph, as long as secret detection methodology is not revealed? If our imagined conspirators were in league with some broader group, it would be no secret to the group that their partners in perfidy have been caught. So why can’t we be told of just the outlines of these exploits? Or are many the same as in these published lists, in which case why is Alexander feigning secrecy about what is already public?

Or — and this is what we are getting at — does the list that never showed up tell us there are nowhere near 50 true cases of plots foiled by the phone and Internet dragnets?

Disclosure of that would greatly weaken the NSA’s case for capturing the telephone records of all Americans, so is Alexander leaving us with only bluster?

bluffing with just a pair?

As for the two defeated plots that the general did offer — plans to bomb the New York Stock Exchange and the city’s subway system — the latter only adds to our skepticism. Najibullah Zazi, an Afghan-American in the U.S., was ensnared when he contacted a foreign terrorist whose communications were being monitored. But James Bamford, author of several books on the NSA and government surveillance, says about the metro plot, “most of that information originally came from the British through regular police work”, (see video) not the NSA’s years worth of phone calls of the entire American population.

Congress showed just how complicit and ignorant it is in all of this. We had Chairman of the House Intelligence Committee, Mike Rogers (R-Mi) fawning over Alexander, who showed up in his beribboned uniform that had Rogers gushing “thank you for your patriotism“ to the man in charge of secret spying on all of us.

His counterpart in the Senate, Dianne Feinstein (D-Ca) credited the NSA’s program with exposing the Zazi plot — wrong as we just saw — and said the FBI had him under surveillance for six months. James Clapper said they had “found backpacks with bombs”. In fact, the backpacks were empty, the bombs incomplete, and court testimony showed Zazi was tailed for only two weeks before he was arrested. These are the people charged with oversight of NSA and all the intelligence agencies. How can they have their facts so scrambled. Don’t they have any idea what is going on?

”No one is listening to your phone calls”

The President himself has made both revealing and questionable statements. The public was given the impression that the phone call logs — however gigantic that database — were just inert records waiting for some intercept from elsewhere to prompt the lookup of a particular phone number and trace its contacts. But just days after the leaks, Mr. Obama said, “by sifting through this so called metadata, they might identify folks who might engage in terrorism”. He would later say, “What the intelligence community is doing is looking at phone numbers and durations of calls”, not the content of the calls. But both these slip-ups tip us off that the phone data is not inert, that NSA is actively using data mining to find patterns in our phone records.

Perhaps it was just a blooper when Obama said to Charlie Rose that the FISA court is “transparent” — this entirely secret court consisting of unknown federal judges scattered about the country, any one of whom can give wiretap approval to NSA. But when he says, “No one is listening to your phone calls“ and “if, in fact, [NSA] now wants to get content … wants to start tapping that phone — it’s got to go to the FISA court with probable cause and ask for a warrant”, neither of these blanket statements is true. Nor is Clapper telling the truth when he said, “the NSA does not voyeuristically pore through U.S. citizens’ e-mails. I stand by that”. And in a non-response to Rose’s question, has the “FISA court turned down any request?”, Obama ducks the question with “First of all, Charlie, the number of requests are [sic] surprisingly small”. There were 1,865 requests last year, and 20,862 applications to the FISA court from 2001 through 2012. Not small numbers (and a mere 11 were rejected).

The fact is that the government has not been at all been forthcoming, even after the leaks, in admitting just how much it does eavesdrop on Americans’ phone calls and read our e-mail and does so without any court warrant. This takes come explaining:

how the law really works

First, phone and Internet traffic between Americans on American soil: The NSA has helped itself to all telephone call logs for years by an overbroad interpretation of Section 215 of the Patriot Act. Rushed into law a month after 9/11, and reauthorized by Congress and President Obama in 2011 for another four years, it allows the FBI’s national security branch to subpoena the “business records” of hospitals, businesses, government departments, even reader lists of libraries and bookstores. That last provision is what caused the biggest uproar when the law was enacted. NSA seems to have extended the legal right to snoop into the reading habits of a library’s “customers” to mean it therefore has the right to the entire nation’s phone records. Instead of what you would expect “business records” to refer to — a company’s financial and accounting data, purchasing records, contracts, personnel files, etc. — NSA has reached past all that to grab instead all the data about all the phone companies’ customers across the land.

It is safe to say that no Congress member envisaged the law to mean that. The abuse led Rep. James Sensenbrenner (R-Wi) to say in a letter to Attorney General Eric Holder, “The administration claims authority to sift through details of our private lives because the Patriot Act says that it can. I disagree. I authored the Patriot Act, and this is an abuse of that law.”

FISA on steroids

That’s one law. The other, the Foreign Intelligence Surveillance Act (FISA), originally enacted in 1978, stems from Senate investigations of Richard Nixon’s use of federal resources to spy on political and activist groups in defiance of the Fourth Amendment. It set up a secret court to issue warrants permitting intelligence agencies to wiretap when an American was found at the other end of foreign snooping.

But in 2008, Congress passed the FISA Amendments Act (FAA). It retroactively blessed President George W. Bush’s illegal surveillance of Americans’ international phone calls, uncovered by The New York Times in December 2005. His administration had decided that the law requiring obtaining court permission was an encumbrance to be ignored, given 9/11, and his government had been wiretapping without warrants or oversight for years since the attacks. The FAA also retroactively granted immunity to the telecom companies against some forty lawsuits for their improperly handing over their records to the government in those years.

The 114-page FAA bill then went on to greatly expand the government’s powers. It was rushed through the House so quickly that there was little time for legislators to read it, much less debate its complexities.

The original law allowed NSA to begin wiretapping provided it obtain a warrant within 72 hours. The 2008 revision introduces a review and appeal process that, at its fullest, could stretch to four months. If the FISA court were to deny certification of a request as a Fourth Amendment violation, which, as we have seen, it virtually never does, it could be too late, if NSA had managed to use these delaying tactics to complete illegal surveillance in advance of a negative ruling.

The President assures us that NSA’s program of international surveillance of phone, Internet and e-mail is “fully overseen”. In fact, it is not. NSA submits to the FISA Court its procedures for how it will choose subjects for international eavesdropping just once a year. With FISA’s carte blanche in hand, the government then needs no permission for whom to target, provided a reasonable case can be made that the subject is believed to be a non-American. At least that is the law, but no court oversees what NSA actually does. Nothing even requires that targets be only suspected terrorists. They could be political officials, off-shore tax haven bankers, gambling principals, whatever.

Target is the key word. Provided the target is not an American, NSA is free to sweep up any communications the targeted person or group may have had with Americans, and is free to listen to those phone calls and read the e-mail without applying for any warrant. Then there is the unanswered question of whether NSA can use its massive trove of phone call logs to see with whom those Americans have communicated in turn, perhaps expanding ever outward in a web of American connections.

Here, then, is the gaping hole in Obama’s claim that “if, in fact, it now wants to get content; [NSA’s] got to go to the FISA court with probable cause and ask for a warrant” and disinformation that “No one is listening to your phone calls”. In fact, snooping on Americans captured in this dragnet requires no warrant and there is no oversight.

Sen. Wyden has long been trying to get from NSA a count of how many Americans have been spied upon through this backdoor. Just a number. NSA has always refused, saying that to come up with a number is beyond its technology.

And if you think that spying on Americans is only incidental, listen to what former NSA Director Michael Hayden had to say to the Senate Judiciary Committee in 2006: that that certain communications “with one end in the United States” are the ones “that are most important to us’.

David Corn at Mother Jones recounts that when the Electronic Frontier Foundation (EFF) got wind of an instance in which the FISA court had cried foul, saying the government had violated the Constitution, it filed a Freedom of Information request with the Justice Department. When that was ignored, EFF filed suit. Months later Justice finally responded to say the document was classified and could not be released, so go ask the FISA court. But the FISA court had told the ACLU — also after the 86-page document — to apply to Justice. Such are the Kafkaesque evasions by which the government cloaks itself in secrecy. The suit continues.

Glenn Greenwald at The Guardian sums it up eloquently:

“The way things are supposed to work is that we’re supposed to know virtually everything about what they do: that’s why they’re called public servants. They’re supposed to know virtually nothing about what we do: that’s why we’re called private individuals.

This dynamic — the hallmark of a healthy and free society — has been radically reversed. Now, they know everything about what we do, and are constantly building systems to know more. Meanwhile, we know less and less about what they do, as they build walls of secrecy behind which they function. That’s the imbalance that needs to come to an end. No democracy can be healthy and functional if the most consequential acts of those who wield political power are completely unknown to those to whom they are supposed to be accountable”.

In Dreadful Decision, Supreme Court Cripples the Voting Rights Act

Americans historically have shown a dislike for our democracy, all the while preaching its virtues, of course. We constantly try to subvert it by enacting state-level laws that favor local interests or prejudices.

The Voting Rights of Act was enacted in 1965 to stand in the way of self-serving skulduggery that threatens this democracy. Its Section 2 enabled the Justice Department to go after any state that engaged in discriminatory voting processes or rules. But in recognition of particular bad actors, Section 5 made nine states — almost all in the South — subject to “preclearance”: any change in their voting laws must obtain prior approval by the Justice Department. Parts of seven other states must also pass muster in advance. Even conservative George Will views the Act as “the 20th century’s noblest and most transformative law.”

Congress has seemingly agreed, reauthorizing the law four times — in 1970, 1975, 1982 and 2006 — dates that tell you that Republican presidents signed onto all of them. The 2006 re-authorization, signed by George W. Bush, passed by 390–33 in the House and 98–0 in the Senate. Without continuance, said Congress’s resolution, “racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last forty years”.

And yet, less than seven years later, the Supreme Court elected to hear a suit brought by Shelby County, Alabama, that argued that Section 5 impinges on federalism too greatly, that states have “the constitutional prerogative to regulate their own elections” and that good behavior makes preclearance no longer necessary.

This claim does not square with the U.S. attorney general having to block 2,400 discriminatory voting changes arising from 750 Section 5 complaints from 1982 to 2006. Nor does it square with extensive attempts at enact vote suppression laws prior to the 2012 election that had even broken out in states not covered by Section 5 such as Ohio and Pennsylvania. Nor does it square with the extensive reconfiguration of election districts that rigged the counts of representatives sent to the House this January (see related story).

Questions from the conservative wing of the court in the February 27th hearing prefigured what was to come in June. They paid little attention to these continuing attempts to manipulate democracy, with even swing-voter Justice Kennedy asking whether Alabama, and by inference the other nine states, must live “under the trusteeship of the United States government” and Justice Scalia calling Section 5 “racial entitlement”.

The contagion of voting law manipulation is spreading, not receding.
This article on the Voting Rights Act cites Attorney General Eric Holder saying that there have been more lawsuits challenging the constitutionality of Section 5 over the past two years than during the previous four decades.

Doing away with prior approval has left the Justice Department to battle discriminatory practices after-the-fact in courts across the nation, with the damage already done by then in elections that cannot be unraveled. The burden now shifts to Justice to prove that a practice or law had a discriminatory effect, which is a much more difficult hurdle than blocking suspect changes to voting laws in advance.

We could see this attack on the Voting Rights Act coming. In a minor case brought by a small Texas utility, Chief Justice Roberts gave indication that he had reservations about the law when he wrote, “The historic accomplishments of the Voting Rights Act are undeniable, but the Act now raises serious constitutional concerns”. Not Section 5, note, but “the Act”. The Nation dug into Roberts’ days as a young lawyer in the Reagan Justice Department to find that Roberts held that “violations of Section 2 should not be made too easy to prove”. Roberts proposed that proof of discriminatory intent, rather than discriminatory effect, should be the obstacle that the Justice Department must clear. Intent is easily denied (“really, your honor, we didn’t mean to discriminate”) and difficult to prove.

In advance of the 2012 election we saw state governments attempt and succeed in throwing up barriers to inhibit from voting blacks, Latinos and students. Nineteen states sought to require photo IDs, states like Ohio curtailed early voting, Florida forbade voter registration on Sundays, when black communities traditionally conduct sign up drives after church. Other states, taking advantage of the once-a-decade opportunity afforded by the census, redrew election districts to corral as many as possible opposition party voters into as few as possible districts to render them impotent. The five on the Supreme Court — the usual right-wing four plus Kennedy — have willfully turned a blind eye to all of this, absurdly maintaining, in the face of last year’s tumult, that Section 5 of the Act has done its job and is no longer needed. We will now see all of these voter suppression tactics rage unchecked.

First Citizens United and now this, in the Court’s campaign to undo our democracy.

Jun 27 2013 | Posted in Law | Read More »

Supreme Court Overturns Key Section of Voting Rights Act

The Court just issued its decision, overturning Section 4 of the Act, which renders the key Section 5 inoperable. The Court seems to think that, despite a year of extreme gerrymandering and state laws to block voting by targeted groups in the 2012 elections, everything is now just fine. For background, our article, from when the Court accepted the case, follows:

Americans historically have shown a dislike for our democracy, all the while preaching its virtues, of course. We constantly try to subvert it by enacting state-level laws that favor local interests or prejudices.

The Voting Rights of Act was enacted in 1965 to stand in the way of self-serving skulduggery that threatens this democracy. Its Section 2 enabled the Justice Department to go after any state that engaged in discriminatory voting processes or rules. But in recognition of particular bad actors, Section 5 made nine states — almost all in the South — subject to “preclearance”: any change in their voting laws must obtain prior approval by the Justice Department. Parts of seven other states must also pass muster in advance. Conservative George Will views that Act as “the 20th century’s noblest and most transformative law.”

Congress has seemingly agreed, reauthorizing the law four times — in 1970, 1975, 1982 and 2006 — dates that tell you that Republican presidents signed onto all of them. The 2006 reauthorization, signed by George W. Bush, passed by 390–33 in the House and 98–0 in the Senate. Without continuance, said Congress’s resolution, “racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last forty years”.

And yet, less than seven years later, the Supreme Court elected to hear a suit brought by Shelby County, Alabama, that argued that Section 5 impinges on federalism too greatly, that states have “the constitutional prerogative to regulate their own elections” and that good behavior makes preclearance no longer necessary.

This claim does not square with the U.S. attorney general having to block 2,400 discriminatory voting changes arising from 750 Section 5 complaints from 1982 to 2006. Nor does it square with extensive attempts at enact vote suppression laws prior to the 2012 election that had even broken out in states not covered by Section 5 such as Ohio and Pennsylvania. Nor does it square with the extensive reconfiguration of election districts that rigged the counts of representatives sent to the House this January (see related story).

Questions from the conservative wing of the court in the February 27th hearing paid little attention to these continuing attempts to manipulate democracy, with even swing-voter Justice Kennedy asking whether Alabama, and by inference the others of the nine states, must live “under the trusteeship of the United States government” and Justice Scalia calling Section 5 “racial entitlement”.

The contagion of voting law manipulation is spreading, not receding.
This article on the Voting Rights Act cites Attorney General Eric Holder saying that there have been more lawsuits challenging the constitutionality of Section 5 over the past two years than during the previous four decades.

Of concern is that doing away with prior approval would leave the Justice Department to battle discriminatory practices after-the-fact in courts across the nation, with the damage done by then in elections that cannot be unraveled. The burden would shift to Justice to prove that a practice or law had a discriminatory effect.

We could see this attack on the Voting Rights Act coming. In a minor case brought by a small Texas utility, Chief Justice Roberts gave indication that he had reservations about the law when he wrote, “The historic accomplishments of the Voting Rights Act are undeniable, but the Act now raises serious constitutional concerns.” Not Section 5, note, but “the Act”. The Nation dug into Roberts’ days as a young lawyer in the Reagan Justice Department to find that Roberts held that “violations of Section 2 should not be made too easy to prove”. Roberts proposed that proof of discriminatory intent, rather than discriminatory effect, should be the hurdle that Justice must clear. Intent is easily denied (“really, your honor, we didn’t mean to discriminate”) and difficult to prove.

If the views broadcast by the Court’s questions intimate that it might do away with the Voting Rights Act altogether — well, say goodbye to this democracy.

Jun 25 2013 | Posted in Law | Read More »

Our Comments on Leaks and Government Secrecy

The blockbuster exposé by The Guardian and The Washington Post that the National Security Agency (NSA) is capturing phone and Internet traffic squares fully with what we reported three months ago, that the government intends to store all digital traces of everyone’s activities and is building a huge secret facility in Utah to conduct these operations and store terabytes of our private lives. That story was an outgrowth of a Supreme Court ruling that government surveillance cannot be challenged. You can find it here.

The media is only now becoming aware of the Utah installation. Over the weekend after the sensational leaks The New York Times mentioned it and showed a photo. A search showed only a single prior mention in the paper, and that was in an op-ed. Bill O’Reilly repeatedly expressed astonishment over the “million-square-foot” facility, calling it “ultra serious”. By now it is finally general knowledge.

Greenwald: “We didn’t tell terrorists anything they didn’t know, we told American citizens”.

Catch-22: In response to requests that the public be told about how the secretly obtained data has thwarted terrorist actions, Senator Dianne Feinstein (D-Ca), the chair of the Senate Intelligence Committee, laments, “Here’s the rub. The instances where this has …disrupted plots, prevented terrorist attacks, is [sic] all classified. That’s what’s so hard about this”. The government says ‘sorry’, it cannot account for whether its spying program is justified because, well, everything is secret. Next question?

John McCain (R-Az) was asked by CNN’s Candy Crowley whether the revelations of government spying bother him. He replied, “Not really. I do believe that if this were September 12, 2001, we might not be having the argument that we are having today”. John Oliver of the “Daily Show” reacted with, “Yeah, but that’s not really the point, is it? The standard of what constitutes the best decisions cannot be, what decision would we make on our most vulnerable and panicked day”?

Eric Schmidt, chairman of Google, one of the facilitators of government spying, had this smug and self-exculpatory bit of fatherly advice for us all: “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place”.

Snowden’s Access: There is speculation on whether a lower level computer technician — and working for a contractor, Booz Allen Hamilton, at that — could have had access to so much data. Russell Tice, a former NSA analyst interviewed on Chris Hayes’ “All In”, said it could happen. They tend to have less security at “out stations” like Hawaii, he said, where as part of a small staff Snowden may have had greater access than at a large installation like Ft. Meade intelligence headquarters in Maryland.

Still, what to make of Mr. Snowden? A note accompanying the first documents leaked to The Washington Post said, “As I worked in secret to resist them, selfish fear questioned if the stone thrown by a single man could justify the loss of everything he loves”. In the Guardian interview (a longer version than you may have heard is found here) he explains that “a systems administrator is exposed to a lot more information on a broader scale than the average employee”. True enough, but he seems to brag when he then says:

“any analyst anytime can target any selected someone anywhere, but not all analysts have the authority to target everything, but I, sitting at my desk, certainly have the authority to wiretap anyone from you or your account or a federal judge or even the president”.

He continues with:

”I had access to the full rosters of everyone working at the NSA, the entire intelligence community, of everyone and undercover assets all around the world, the location of every station, what their missions are and so forth. If I’d just wanted to harm the United States, you could shut down the surveillance system in an afternoon”.

These are remarkable claims that ask us to believe there is no security at all at the NSA or its contractors. Rather, we seem to be hearing symptoms of grandiosity, amplified by the fact that he chose to come out into the open. “I think that the public is owed an explanation” is his stated reason, but he could have posted a statement on some blog. Is he looking to be celebrated for, as Chris Hayes said, for throwing “the rest of his life away for an act of conscience”?

Leaky Faucet: In 2010, The Washington Post reported that 854,000 Americans have top secret clearance and that nearly a third of them work for private contractors. In January the director for national intelligence reported that, as of last October, 582,524 workers at contractor firms had confidential to secret clearance, and 483,263 had top secret clearance. Is it any wonder that government secrets have now been leaked?

President Obama said “every member of Congress has been briefed on this program” and that “Congress is continually briefed on how these [data collection programs] are conducted, there are a whole range of safeguards involved and federal judges are overseeing the entire program throughout”. Nothing approaching every member of Congress was briefed and its members immediately went before the cameras to say they knew nothing about the programs. As for the federal judges, the secret FISA court to which the president refers has been spoken of by many as something of a joke, “a kangaroo court with a rubber stamp”, as (former NSA analyst) Russell Tice put it. That characterization owes to the fact that of the 20,862 applications to the FISA court from 2001 through 2012, only 11 were rejected.

How is “Telephony Metadata” Used? The phone records — date and time, calling number and number called, duration, cell tower for cell phones — might simply lie fallow in enormous warehouses of storage media, entirely inert until the NSA, CIA or any of our sixteen intelligence agencies happens upon a phone number of interest. Only then, perhaps, does software go to work developing a web of every call to and from that number (and all the calls to and from those contact numbers in turn) back through years, all of them to then be identified by name and location for investigators to track down.

Or the government may take a more active approach. Software may be constantly trolling through the data looking for whatever calling patterns seem suspicious according to arcane algorithms devised by NSA quants, leading to the faces behind the phone numbers who therefore need a closer look and to answer for themselves.

It seems to be the latter. Surely President Obama knows what is done with the data and days after the leaks he tipped us off that active use is the fact, saying “but by sifting through this so called metadata, they might identify folks who might engage in terrorism”.

Snowden expressed well how that can become more sinister: “You simply have to eventually fall under suspicion by somebody, even by a wrong call, and they can use the system to go back in time and scrutinize every decision you’ve ever made, every friend you’ve ever discussed something with and attack you on that basis to derive suspicion from an innocent life and paint anyone in the context of a wrongdoer”.

Haystack: “If you are looking for a needle in a haystack, you need a haystack”, said Jeremy Bash, the chief of staff to former defense secretary Leon Panetta, in support of the program.

Patriot Act: The infamous Section 215 of the Orwellian-named Patriot Act, rushed into law a month after the 2001 attacks and perpetuated since, is what the government claims gives it the authority to build that haystack of phone records. It allows the FBI to subpoena entire databases of hospitals, businesses and government departments as well as reader lists of libraries and bookstores, tax records, gun owner lists, driver licenses, and virtually any data the FBI decides could be useful.

So if you check out a book from your local library out of curiosity about, say, international terrorism, a knock on your door could result in removal of all your personal papers, tax records, bank statements, and your computer’s hard drive. And it is illegal for you to disclose to anyone else that this has happened. Until changed in 2006, the law even forbade you from informing your attorney that you had been subpoenaed.

Ron Wyden (D-Or), a member of the Senate Select Committee on Intelligence, and one of 10 senators to vote against re-authorization of the Patriot Act in 2011, said at the time, “I believe many members of Congress who have voted on this issue would be stunned to know how the Patriot Act is being interpreted and applied”. For years he has tried to tip off the American public to the government’s abusive use of the Act, but is constrained by secrecy laws. In a May 2011 speech in the Senate, Wyden said:

“The fact is that anyone can read the plain text of the Patriot Act, and yet many members of Congress have no idea how the law is being secretly interpreted by the executive branch, because that interpretation is classified. It’s almost as if there were two Patriot Acts, and many members of Congress have not read the one that matters” .

In May of 2011 President Obama signed a four-year extension of the Act.

Clapper: Here’s a video of Director of National Intelligence James Clapper lying to Senator Wyden in a Senate hearing in March:

Clapper would later explain that it wasn’t a question that could be answered with ‘yes’ or ‘no’. Really?

Outreach: There is a truism that if a power is given to authority, it will be abused. Sure enough, under the Patriot Act the FBI overused — and often illegally — what are called “national security letters” to demand information from businesses and private citizens without having to get a judge’s approval. Tens of thousands of “NSL”s were issued each year such that FBI chief Robert Mueller had to go before Congress in 2007 and apologize for the agency’s out of control use of this oversight-free shortcut to target the public.

Section 215 of the Patriot Act gives the executive branch the right to commandeer “business records” and any “tangible things”, and here again we have an overbroad interpretation of that section on which the government bases its claim that it had the right to sweep up the nation’s entire telephone activity for years on end.

Here’s a question: Is it not likely that members of Congress, when they passed and reauthorized the Patriot Act, thought that “business records” referred to records of a company’s conduct of normal business operations? — financial and accounting data, purchasing records, contracts, personnel files, etc. In approving the act did those Congress members have any expectation that the government would cast aside those categories of data and instead reach past them to grab all the data about the company’s customers and their use of its product?

Good News! You’re Not Paranoid: A few days after the leak about phone and Internet surveillance, references to the omnipresent watchfulness of Big Brother in George Orwell’s “1984” popped up everywhere. Orwell’s book reportedly saw a 7,000% jump in sales over 24 hours.

A legal scholar named Daniel Solove, of George Washington University, whose book, “Nothing to Hide, The False Tradeoff Between Privacy and Security” was published a few months ago, argues that Franz Kafka’s world is a better fit. “The Trial” depicts an inscrutable authority that “that uses people’s information to make important decisions about them, yet denies the people the ability to [know] how their information is used”, with the result that the power relationship between the people and the state is altered.

This Isn’t News: In December of 2005, the New York Times broke the story that, months after the 9/11 attacks, “President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials”. That secret bypass of the courts was, officially anyway, limited to international phone and e-mail traffic. But then on May 11, 2006, USA Today dropped a still bigger bombshell: “The National Security Agency has been secretly collecting the phone call record of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth…The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom are not suspected of any crime”.

So we’ve known this for years yet the recent leak seemed as startling as a drone strike. That the knowledge has been out there for years says that any terrorists lurking in the United States have long ago been alerted not to use phones other than prepaid, throwaway cells, as Greenwald said above. So why is the government spending all this money and could there really been any results as Ms Feinstein claims?

After the clamor fades, the public returns to what it was doing, and nothing changes — except that the surveillance programs grow ever larger.

What’s Left in the Carbon Budget Before It’s Too Late?

It is only six pages long — four if one counts only the main text and not the notes and references — yet it has evidently become the most influential paper in the environmental science world. What gives it such gravitas, of course, is not just the intensive computer modeling that led to its conclusions, but its way of quantifying the threat of global warming.

Published four years ago in the April 2009 issue of Nature, the preeminent science weekly, the paper is dense with the terminology of climate science and therefore largely unknown outside scientific circles, but — analogous to Google rankings — the number of references to the paper in other scientific papers and articles puts it in the top 0.1% of environmental articles and just shy of the top .001%. If citations in books, professional societies and university websites, etc. are included, as does Google Scholar, the number of referrals more than doubles.

Titled “Greenhouse-gas emission targets for limiting global warming to 2°C”, or Celsius, which is 3.6° Farenheit, it is the result of research by eight scientists from Germany, the UK and Switzerland. At the time, more than 100 countries had adopted a 2°C rise in warming above pre-industrial levels as a guiding limit beyond which they agreed that the planet would suffer irreversible damage. That number since rose to 167 nations signing on at the Copenhagen Accord. But the amount of emissions that would equate to that 2°C rise (and beyond) was poorly understood, said the group, and that is what they set out to solve when they began work in 2006.

What they found is grim. Using the novel metaphor of a budget — a carbon budget spanning the years 2000 to 2050 — they said that for humans to have only a 50% chance of holding to the 2°C limit, we will need to restrict carbon dioxide emissions to 1,440 billion tons (gigatons) across that entire timespan. (That probability enters the mix owes to the many other variables affecting climate.)

To improve those odds, the budget would of course need to be cut back further. The paper further foresees that we would need to restrict emissions to 1,000 gigatons is we choose to aim for only a 25% likelihood of going above 2°C, or to 890 gigatons to reduce the chance of exceeding 2°C to 20%.

Trouble is, around 234 gigatons of CO2 had already been emitted in just the period between 2000 and 2006, says the paper. The authors say that, continuing at the average annual emission rate of those years — 36.3 gigatons — we will run through those carbon budgets that give us a 20%, a 25% or at worst a 50% chance of not exceeding a 2°C temperature increase by 2024, 2027 or 2039, respectively. So in a mere eleven years, there is a 20% chance that we will cross the 2°C divide.

Actually the prognosis is worse still. Rather than the steady rate of 36.3 gigatons emitted each year, the industrial expansion of China and, to a lesser extent, India, have led to increases in annual emissions beyond the 36.3 gigatons that the scientists used for projecting — increases drain the budgets sooner.

Thus are we are confronted with the consequence of ignoring the global warming alarms raised for over three decades. This article reports that scientists at NASA’s Goddard Spaceflight Center warned in the journal Science of global warming of ”almost unprecedented magnitude” in the 21st century that could ”flood 25 percent of Louisiana and Florida, 10 percent of New Jersey and many other lowlands throughout the world”. The article dates from August, 1981.

We have since seen an enormous outpouring of such articles, talks, documentaries and demonstrations foretelling this calamity, yet the world has done nothing on the scale needed to head it off or, as with the United States, has largely looked the other way.

That article was written when the concentration of CO2 in the atmosphere was 335 to 340 parts per million (ppm), which itself had risen well above the pre-industrial level of 280 ppm a century earlier. And in the middle of this May, the measurement at the station atop Mauna Loa in Hawaii, which has been monitoring the Pacific air for half a century, crossed the 400 ppm threshold.

consensus

Meanwhile, comes a study just published that is the most comprehensive survey of climate research to date. It analyzed all the scientific papers on climate published between 1991 and 2011. Of those that expressed an opinion, 97.1% attributed rising temperatures to human causes. But skeptics say there has been no increase in temperature (which we reported here) , pointing to the last decade in which average global temperatures plateaued and dismissing the rising temperatures in the years before that to natural causes.
           By “anomalies” is meant each year’s increase or decrease in temperature.
They further dispute the accuracy of computer modeling, although its abandonment would leave no way to consider the future other than waiting for it to happen.

Temperature measuresments across the last 1,000 years, with the steep spike at the end.

But a factor that has certainly persuaded the scientific community of the validity of the European study is the huge number of constraints, variables and iterations that it represents. To give a little of the flavor of that work, this except from a section titled “Methods”:

“Out of more than 400 parameters, we vary 9 climate response parameters, (one of which is climate sensitivity), 33 gas-cycle and global radiative forcing parameters (not including 18 carbon-cycle parameters…) and 40 scaling factors… To constrain the parameters we use observational data of surface air temperatures…from 1850 to 2006, the linear trend in ocean heat content changes from 1961 to 2003 and year 2005 forcing estimates for 18 forcing agents…With a Metropolis-Hastings Markkov chain Monte Carlo approach, based on a large ensemble (>3 x 10^6) of parameter sets using 45 parallel Markov chains with 75,000 runs each…”

And so on. You don’t need to know what all this means (nor do we know) to realize that the study was enormous.

Bill McKibben, co-founder of 350.org and today’s leading environmental activist, has evidently been influenced by this study. In a highly recommended article last August in Rolling stone he referred to “one of the most sophisticated computer-simulation models that have been built by climate scientists around the world over the past few decades” and the fact that he picks up the same approach of a “carbon budget”suggests he is referring to the 2009 European study. McKibben is currently leading the charge against authorization of the Keystone XL pipeline, against which his organization plans demonstrations across the country this summer.

leave it in the ground

The authors gathered estimates from the literature on the subject of all proven fossil fuel reserves that could be extracted “given today’s techniques and prices”. In their estimate, if that entire world inventory were then burned, it would equate to 2,800 gigatons of CO2. This is the same as the amount estimated by a UK-based outfit named Carbon Tracker Initiative, who say that figure doesn’t even include unconventional sources like tar sands, oil shale and methane hydrates.

Either way, 2,800 is well above the budget figures above. If all those reserves were extracted and burned, that would be double the worst case of 1,440 gigatons that lead to a only 50-50 chance of staying at no more than a 2°C temperature rise. Which raises an interesting prospect. If and as the global temperature verges toward that benchmark over the coming decade, what if some of those 167 countries begin to panic — fearing rising seas, violent storms, agricultural drought and an inability to feed their people. What if they were to begin to impose severe emission constraints that leave those hydrocarbons in the ground? McKibben cites a former managing director at JP Morgan who calculated that at today’s market value those reserves are worth about $27 trillion. What will then become of the market value of some of the world’s biggest companies — and the wealth of countries that are little more than fossil fuel companies — that are banking on a business-as-usual future in which the world goes on forever buying and burning those reserves?

Carbon Tracker’s mission is to quantify the “carbon embedded in equity markets” and the risks to the fossil fuel companies in what could become “unburnable carbon” — that is, reserves that make up much of the valuation of those companies but would become worthless if left in the ground. McKibben’s 350.org has a similar mission to begin that devaluation by getting universities, religious institutions and state and city governments to divest their holdings of fossil fuel companies with the slogan “It’s wrong to profit from wrecking the climate”.

In recognition that so much of what is below ground will have to stay there, shouldn’t the public companies begin to work down their market capitalization by returning value to their shareholders? Instead, they continue to do the opposite. In 2012 they paid out $126 billion to shareholders while, says Carbon Tracker, they go on spending on exploration and development of reserves year after year — $$674 billion last year alone — to find what could become stranded assets. The Economist wonders whether companies have decided that governments will be unable to impose limits on publics unwilling to give up any amenities, and that we will go on to burn all their reserves after all, cooking the Earth and leaving that wishful 2°C increase far behind. Or, they intend to accomplish the same objective by promoting geo-engineering. That idea says we could cool the planet by darkening the skies to block out the Sun.

Obama v. the Press: A History Worse Than Nixon?

As a candidate he had called warrantless surveillance “unconstitutional and illegal”.

In his first inaugural address he said, “My administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration”.

On his first day in the Oval Office he commented, “For a long time now, there’s been too much secrecy in this city”, as he signed executive orders to reverse some of the Bush Administration policies.

And just days ago President Obama said, “…a free press is also essential for our democracy. I am troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.”

You would never know from these statements that in the intervening years he and his Justice Department have conducted “unprecedented” surveillance of journalists and prosecuted more federal employees under the 1917 Espionage Act than all prior administrations combined. Previously used only three times by all presidents since its enactment in 1917, Obama has wielded it six times.

In addition to the Justice Department secretly snatched the call records of 20 phone lines belonging to the Associated Press (AP) and its reporters, now comes the revelation that the government secretly pilfered the phone logs and e-mails of James Rosen, the chief Washington correspondent of Fox News.

The counsel who represented the New York Times in no less than the Pentagon Papers case says that if he wants to make it a crime for a reporter to talk to a leaker, “It is a further example of how President Obama will surely pass President Richard Nixon as the worst president ever on issues of national security and press freedom”.

The last section of our related article, “Scandals Put the U.S. On Hold”, recounts the snooping on AP, but the Rosen story broke after that was written. Rosen had reported in 2009 that North Korea would likely launch a missile as a kind of retaliation if the United Nation’s Security Council condemned its nuclear testing. That probably sounds like everyday behavior that anyone could have forecast by the Hermit Kingdom, not rising to the level of a leak, but it may have told Kim Il-sung that we had a source inside his regime.

Rosen’s suspected source in the State Department had already been identified and indicted, which should have been the end of it, but the Washington Post uncovered that the FBI had gone on to pursue Rosen for reporting his story, petitioning in court for access to Rosen’s e-mail with a 36-page affidavit that showed just how widely the FBI had spied on Rosen’s life and movements.

since when is reporting a crime?

The affidavit called Rosen “an aider and abettor and/or co-conspirator” in the leak, and that is what has the press and general media in an uproar. Rosen “was named a criminal co-conspirator for simply doing his job as a reporter”, in the words of Michael Clemente, an executive VP at Fox News. The affidavit says that the government views reporting a leak as a crime, whereas it is precisely the essential role of a free press to pry open the secrets of government, made all the more secret by the practice of stamping everything more than the lunch menus in their cafeterias as “classified”. Instead of seeking out only the leaking source, the government is now going after reporters for doing their job. Already, sources in government are avoiding reporters, with several commenting in this roundup on the “chilling” effect of government targeting. Others complain of being taken from their jobs by the FBI for questioning.

Other government investigations are under way, such as the Times David Sanger’s exposé of the Stuxnet virus that caused Iran’s centrifuges to fail, and other news organizations wonder whether the Justice Department and FBI have secretly commandeered their phone records e-mails, credit cards charges, travel tickets as well.

David Brooks, a conservative columnist at the New York Times says “if anyone in the media reports a story that is based on a leak, it’s public”. That is, it has been let out into the open and a journalist has the right to make it known. No American journalist has ever been prosecuted for reporting classified information leaked by a government employee. But that seems to be the thrust of the government now. Brooks calls himself “not a particularly open government kind of guy”, but views the AP and Rosen actions as “almost historically unprecedented and unconscionable”. They are the much bigger scandal, the one that threatens the Constitution.

Yet in this op-ed piece, telling us that “Prosecutors were right to obtain phone records of A.P. journalists”, three former Justice officials want to assure us only after a “methodical and measured investigation” spanning “eight months of intensive effort” that pursued “all reasonable alternative investigative steps” did the department secretly filch the AP phone records rather than follow the long-established protocol of openly requesting such records. That gives the news organization the option of challenging the request in court, should it choose not to cooperate, which Justice apparently viewed as a nuisance. As did the Justice Department’s letter to company AP CEO Gary Pruit, the op-ed authors say the Justice Department had first grilled 550 persons about the Yemen leak. If that many people were thought to be enough involved to know something, whose fault is it that there was a leak? The government is a sieve.

A bit of irony, one of the op-ed authors was Jamie Gorelick, a proponent of government secrecy who was revealed in the 9/11 Commission hearings as the Justice official who erected “the Wall” that forbade the exchange of intelligence information between CIA and FBI that prevented the agencies from “connecting the dots” of information that hinted of the oncoming World Trade and Pentagon attacks.

background

These latest incursions on the freedom of speech and the press are nothing new in the Obama administration, and we’ve tabulated their actions before.

No one knows this better than John Kiriakou, the former CIA agent who reported to federal prison at the end of February. Kiriakou, in the midst of a bloody shootout, stormed a house in Pakistan, captured a badly wounded man, and sent a cellphone photo of his ear that identified the captive as Abu Zubaydah, a prize catch in the early moments of the new war against al Qaeda in 2002. Today, that risk of his life for his country is forgotten by the Obama government that accused Kiriakou of revealing to a journalist the classified names of two CIA colleagues, whom he thought had left the agency, who had been involved in waterboarding interrogations. The Obama Justice Department that has never prosecuted anyone for waterboarding prisoners sent Kiriakou to prison for 30 months. “In truth, this is my punishment for blowing the whistle on the CIA’s illegal torture program and for telling the public that torture was official US government policy”, he said in a letter just sent from prison.

Worst was the prosecution of whistle-blower Thomas Drake, formerly of the National Security Agency, for telling a reporter from the Baltimore Sun of the government’s intention to pay hundreds of millions of dollars to an outside vendor to develop data monitoring software instead of using an internal product that cost far less and was less invasive of privacy. Somehow, even this was classified. For this attempt to save taxpayers’ money, Drake was looking at 35 years in prison. The case was so weak that the government settled for a face-saving misdemeanor charge but Drake had been fired, lost his pension and was ruined financially by legal costs.

The Obama Administration has tried to force The New York Times’ James Risen to confirm that his source for a 2006 book on the CIA’s attempt to sabotage Iran’s nuclear program was a former CIA officer on trial for providing Risen that information. Risen, along with Eric Lichtblau of the Times won the Pulitzer for discovering the Bush Administration’s spying on international communication traffic. Much like attorney-client privilege, the press have traditionally not been forced to reveal their sources of information. Most states have laws that shield the press and a Virginia court ruled against the government’s attempt to force Risen to testify. But there is no federal shield law and a government unconcerned for the First Amendment is appealing. In his speech last week at the National Defense University, Obama urged that the Senate dust off a federal shield law that was never voted on, except that it appears to be no more than window-dressing. The proposed law has an exception, inserted by the White House, that allows the government to investigate and prosecute reporters if “national security” is being endangered, says The Nation.

President Obama has personally seen to it that a Yemeni journalist remains behind bars for the crime of exposing the Obama Administration’s cover-up of a December 2009 bombing raid in Yemen that went wrong. Getting wind that reporter Abdulelah Haider Shaye was about to be pardoned, an early release from a five year prison sentence, Obama phoned then-Yemen president Saleh to ask that Shaye be kept behind bars.

His crime was discovering that the bombing was conducted not by Yemen but by the U.S. and had not killed al Qaeda militants but 14 women and 21 children. At the site, Shaye had discovered the remnants of cluster bombs and cruise missiles, ordnance never in Yemen’s arsenal. The President clearly does not want the truth to come out, and keeping a reporter in jail in a country most Americans cannot find on a map is a good place to lock down the truth. But a Wikileak intercept caught President Saleh saying to Gen. David Petraeus that his government agreed to say, “The bombs are ours, not yours”. The full story is reported by Jeremy Scahill at The Nation.

At great risk, Shaye had in the past gone into al Qaeda controlled areas of Yemen and interviewed their leaders, even U.S. citizen Anwar al Awlaki before he was judged a terrorist and assassinated by the U.S. Access to al Qaeda is an invaluable reportorial resource for gaining insights into the terrorists, but the Obama Administration instead now uses such contacts as a justification for imprisonment. Our ambassador to Yemen dutifully fabricated, “Shaye is in jail because he was facilitating Al Qaeda and its planning for attacks on Americans”. All interviewed by Scahill who know Shaye say this is a lie, and the Committee to Protect Journalists, the International Federation of Journalists, Reporters Without Borders and other international media organizations have called for Shaye’s release.

backing off?

A press free to develop sources to find the truth is vital to preserving a democracy and preventing the encroaching secret government that Obama finds to his liking. News organizations ranging from the New York Times to Fox News, and of course the Associated Press, declined an invitation from Eric Holder to the Justice Department because it would be “off the record”. It was viewed as an attempt by Holder to get back in good graces with the media, but in an arrangement where attendees would be constrained by journalistic ethics from reporting on his answers to some awkward questions. The Wall Street Journal, Politico and The Washington Post accepted.

Possibly someone thought to remind the Attorney General what Justice Hugo Black wrote when the Supreme Court ruled against the government’s attempt to block publication of the Vietnam war history that came to be called the Pentagon Papers: “The government’s power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government and inform the people.”

Jun 4 2013 | Posted in Policy | Read More »