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Change We Can Believe In, III

July 31, 2010 Leave a comment

Change we can believe in: Expanded e-mail surveillance

The Washington Post reported Thursday that:

The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. It does not include, the lawyers hasten to point out, the “content” of e-mail or other Internet communication.

But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.

As we become a country permanently at war, the authority the federal government requires in order to ensure our national security continues to expand, as relentlessly under Obama as under Bush. We can believe in that.

Here are excerpts from a NYT editorial yesterday:

The administration’s request, reported Thursday in The Washington Post, is an unnecessary and disappointing step backward toward more intrusive surveillance from a president who promised something very different during the 2008 campaign. . . .

President Obama campaigned for office on an explicit promise to rein in these abuses. “There is no reason we cannot fight terrorism while maintaining our civil liberties,” his campaign wrote in a 2008 position paper. “As president, Barack Obama would revisit the Patriot Act to ensure that there is real and robust oversight of tools like National Security Letters, sneak-and-peek searches, and the use of the material witness provision.”

Where is the “robust oversight” that voters were promised? Earlier this year, the administration successfully pushed for crucial provisions of the Patriot Act to be renewed for another year without changing a word. Voters had every right to expect the president would roll back authority that had been clearly abused, like national security letters. But instead of implementing reasonable civil liberties protections, like taking requests for e-mail surveillance before a judge, the administration is proposing changes to the law that would allow huge numbers of new electronic communications to be examined with no judicial oversight.

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Categories: Government, Law, Security

Change We Can Believe in, II

July 30, 2010 Leave a comment

Change we can believe in: Institutionalizing abuses of the rule of law

It’s hardly news that Obama, having attacked many Bush-Cheney national security policies when he was a Senator as abuses of the rule of law, has since embraced some of them as president. This has had and will have the pernicious effect of converting what might once have seemed the aberrations of an extremist administration into bipartisan normalcy. And we now have a detailed review, released yesterday by the ACLU, that makes this very point. I’ll quote from the press release:

The Obama administration has repudiated some of the Bush administration’s most egregious national security policies but is in danger of institutionalizing others permanently into law, thereby creating a troubling “new normal,” according to a new report released today by the American Civil Liberties Union.

“Establishing a New Normal: National Security, Civil Liberties, and Human Rights Under the Obama Administration,” an 18-month review of the Obama administration’s record on national security issues affecting civil liberties, concludes that the current administration’s record on issues of national security and civil liberties is decidedly mixed: President Obama has made great strides in some areas, such as his auspicious first steps to categorically prohibit torture, outlaw the CIA’s use of secret overseas detention sites and release the Bush administration’s torture memos, but he has failed to eliminate some of the worst policies put in place by President Bush, such as military commissions and indefinite detention. He has also expanded the Bush administration’s “targeted killing” program.

The 22-page report, which was researched and written by staff in the ACLU’s National Security Project and Washington Legislative Office, reviews the administration’s record in the areas of transparency, torture and accountability, detention, targeted killing, military commissions, speech and surveillance and watchlists. . . .

According to the ACLU’s report, the first 18 months of Obama’s presidency have been marked by a pattern wherein significant achievements for civil liberties have often been followed by setbacks. For instance, the positive step of releasing Justice Department memoranda that purported to authorize the Bush administration’s torture regime was followed by the troubling decision to fight the release of photos depicting the abuse of prisoners in CIA custody. The administration’s commitment to dismantle Guantánamo has been undermined by its assertion of the authority to detain people indefinitely without charge or trial. And prohibitions against torture have been weakened by the failure to hold top Bush administration officials accountable for their role in the torture program.

Categories: Government, Law, Politics

Confederate History Month

April 9, 2010 Leave a comment

You probably know that Virginia governor Bob McDonnell declared this to be Confederate History Month. The criticism he received that his initial proclamation omitted any reference to slavery led him to add a paragraph addressing the role of slavery in the Civil War and describing it as an “evil and inhumane practice.”

If you haven’t read the proclamation itself, I recommend that you have a look. You can find it here. There are seven “whereas” clauses outlining the basis for April’s designation as Confederate History Month. Here, as a sample, is the third:

Whereas, it is important for all Virginians to reflect upon our Commonwealth’s shared history, to understand the sacrifices of the Confederate leaders, soldiers and citizens during the period of the Civil War, and to recognize how our history has led to our present;

Sacrifices of slaves, or free blacks, or those white Virginians who chose to fight for the Union are not recognized. I suppose that’s natural. It’s Confederate history we’re celebrating, after all. But still.

I like Ed Kilgore’s remembrance in The New Republic of “the final years of Jim Crow, when every month was Confederate History Month.” He goes on to suggest “a Neo-Confederate History Month that draws attention to the endless commemorations of the Lost Cause that have wrought nearly as much damage as the Confederacy itself. It would be immensely useful for Virginians and southerners generally to spend some time reflecting on the century or so of grinding poverty and cultural isolation that fidelity to the Romance in Gray earned for the entire region, regardless of race. Few Americans from any region know much about the actual history of Reconstruction, capped by the shameful consignment of African Americans to the tender mercies of their former masters, or about the systematic disenfranchisement of black citizens (and in some places, particularly McDonnell’s Virginia, of poor whites) that immediately followed.”

(See also Robert R. Mackey’s series of three posts at the Obsidian Wings blog: here, here, and here.)

Categories: Government, History, Politics

Coal Mine Safety

April 9, 2010 Leave a comment

It’s a continuing mystery to me why regulation of industry is so widely and casually disparaged. Then something happens like the collapse of the US banking industry, or a mine explosion, and there’s talk briefly of adding regulations or enforcing them more strictly, but soon it’s back to depicting regulations as yet one more evil government tool to take over free enterprise and steal our freedoms. Mind you, many of the people saying this don’t seem to mind at all when our government gets serious about stealing our freedoms, whether by reading our email without court approval or throwing us in jail without paying attention to habeas corpus.

And here we are, again, with this week’s mine explosion at Massey Energy Company‘s Upper Big Branch mine explosion in Montcoal, West Virginia. See this AP article from Wednesday for an account of Massey’s pattern of “frequently sidestep[ping] hefty fines by aggressively contesting safety violations, including recent problems with the ventilation system that clears away combustible methane gas.” As E.J. Dionne noted in The New Republic yesterday:

Companies just don’t like regulation, and Don L. Blankenship, the chief executive of Massey Energy Co., has a history of challenging the regulators in every way he can.

Massey’s Upper Big Branch Mine has been cited for safety violations 1,342 times since 2005. Eighty-six of those citations involved failing to follow a mine ventilation plan to control methane and coal dust, 12 of them coming last month alone.

Not surprisingly, Blankenship views this as the cost of doing business. “Violations are unfortunately a normal part of the mining process,” he said in a radio interview with West Virginia Metro News. “There are violations at every coal mine in America and UBB (Upper Big Branch) was a mine that had violations.” . . .

Only after disasters such as this one do we remember that regulations exist for a reason, that their enforcement can, literally, be a matter of life and death. We will eventually learn what went wrong at Upper Big Branch and whether the safety violations were part of the problem. But then what will we do?

As for banking regulation, the moment seems to have passed. I don’t see the Senate doing anything.

Categories: Government, Regulation

They’re Watching Us!

December 9, 2009 Leave a comment

Six years ago next month, we began the process of buying a new car for Gail. We soon settled on a particular model, and then had to decide on features and color, given those the dealer could get in. We were somewhat flexible on color. Our principal criterion was that we didn’t want the navigation package. We wanted the other standard multi-feature package, the one that gives you heated front seats and leather interior and a few other “luxury” items. But we didn’t want the navigation package for three reasons: we didn’t think we needed it — we sort of know our way around; why pay for something you don’t need?; but most important, Gail didn’t want the car to be equipped with GPS. I kept tellling her this could be useful, but she was adamant that she didn’t want them watching her. Paranoia or reality? Who knows? Remember the Mel Gibson character in Conspiracy Theory? He turned out to be right. Why bet against him?

Since most of the cars the dealer brought in had the navigation feature, we would have to wait. No problem. Our salesman identified a particular vehicle on its way from Japan and earmarked it for us. Or so he said.

Weeks went by. Eventually he said something had gone wrong and the car wasn’t coming to the dealer. Or maybe it was going to another customer. Whatever. We found whatever he said a little hard to take seriously. Whatever the issue, he was back to telling us that a car with everything we wanted was now available, and as a bonus, it had navigation too! He seemed to have forgotten the whole point, that we were waiting a month so we could do without navigation. We decided to take a look. And then, great car bargainer that I am, I managed to get them to agree to a big discount on the navigation. Gail, in turn, sucked it up and decided she could live with GPS.

Five years and 9+ months later, she couldn’t be happier. She has struck up a friendship with the disembodied woman who tells her how to get places. She finds the navigation more useful than she ever imagined. But best of all, with navigation and the accompanying screen in the dash, you get a rear camera that shows what’s behind you when the car is in reverse. The car I bought three years ago has this too. One quickly comes to appreciate it.

Are they watching? We moved beyond that.

Silly us. As you may have read last week, thanks to the work of Indiana University graduate student Christopher Soghoian,

Sprint Nextel provided law enforcement agencies with its customers’ (GPS) location information over 8 million times between September 2008 and October 2009. This massive disclosure of sensitive customer information was made possible due to the roll-out by Sprint of a new, special web portal for law enforcement officers.

Read more in his post on the subject. See also emptywheel’s post two days ago, in which she points out that Sprint may have made a significant amount of money from this service. She concludes, “You see, these companies only look like telecom companies. Really, they’re telecom and surveillance companies. The question is, how much telecom is it, and how much surveillance?” And see Scott Horton’s post yesterday at Harper’s. I’ll conclude with one passage from Horton.

In 1999, Congress passed a law requiring annual reporting of “pen registers and tap and trace devices” so that Congress could monitor the use of new technologies for electronic surveillance. This reporting requirement is imposed on the Department of Justice. However, Soghoian notes (I believe correctly) that the Justice Department has simply ignored the law and the obligations it imposes. This is one area in which the Justice Department apparently feels free to do what it wishes, including violating criminal statutes, whenever it feels national security is challenged. It is also free to rope telecommunications service providers into collaboration, assuring them that it will use its law enforcement monopoly to insure that criminal statutes they are jointly violating will not be enforced. This was the criminal enterprise engineered by the Bush Justice Department to subvert FISA. But so far there is little evidence of the Obama Administration charting a different course, or insisting on accountability for their predecessors.

Categories: Government, Law, Movies, Security

Same As It Ever Was

September 24, 2009 Leave a comment

Last night, I wrote about Gary Wills’ piece in the current NY Review of Books describing the US’s permanent national security state and the challenges any president — Obama in particular — has in changing it. This morning Glenn Greenwald addressed a particular one of these challenges, changing US policy on preventive detention. His comments are in response to an article by Peter Baker in today’s NYT reporting that the “Obama administration has decided not to seek new legislation from Congress authorizing the indefinite detention of about 50 terrorism suspects being held without charges at at Guantánamo Bay, Cuba, officials said Wednesday. Instead, the administration will continue to hold the detainees without bringing them to trial based on the power it says it has under the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the president to use force against forces of Al Qaeda and the Taliban. In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies.”

After discussing the specific issues, Greenwald observes that

when it comes to uprooting (“changing”) the Bush/Cheney approach to Terrorism and civil liberties — the issue which generated as much opposition to the last presidency as anything else — the Obama administration has proven rather conclusively that tiny and cosmetic adjustments are the most it is willing to do. They love announcing new policies that cast the appearance of change but which have no effect whatsoever on presidential powers. With great fanfare, they announced the closing of CIA black sites — at a time when none was operating. They trumpeted the President’s order that no interrogation tactics outside of the Army Field Manual could be used — at a time when approval for such tactics had been withdrawn. They repudiated the most extreme elements of the Bush/Addington/Yoo “inherent power” theories — while maintaining alternative justifications to enable the same exact policies to proceed exactly as is. They flamboyantly touted the closing of Guantanamo — while aggressively defending the right to abduct people from around the world and then imprison them with no due process at Bagram. Their “changes” exist solely in theory — which isn’t to say that they are all irrelevant, but it is to say that they change nothing in practice: i.e., in reality.

Greenwald brings up Wills’ article later, noting that “Wills makes the point I’ve been emphasizing for some time: as long as we remain a nation in a permanent state of war, devoted to imperial ends, maintaining our National Security State ensures that the core assaults on civil liberties will never end; at best, we can tinker with them on the margins with the types of pretty words that the Obama administration adores, but it will persist and grow on its own accord.”

Pretty bleak. But seemingly true.

Categories: Government, Politics

Change: Difficult, but Needed

September 23, 2009 Leave a comment
Diego Garcia

Diego Garcia

The current New York Review of Books has a short piece by Gary Wills describing the difficulties Obama (or any president) has in introducing policies that would move the US away from its permanent national security state. There may not be much that is original, but the article is still valuable in laying out the issues so succinctly and clearly. The opening is below. The article is short; read it all. (See also Jonathan Freedland’s review of David Vine’s Island of Shame: The Secret History of the U.S. Military Base on Diego Garcia, to both of which Wills refers.)

George W. Bush left the White House unpopular and disgraced. His successor promised change, and it was clear where change was needed. Illegal acts should cease—torture and indefinite detention, denial of habeas corpus and legal representation, unilateral canceling of treaties, defiance of Congress and the Constitution, nullification of laws by signing statements. Powers attributed to the president by the theory of the unitary executive should not be exercised. Judges who are willing to give the president any power he asks for should not be confirmed.

But the momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration. The whole history of America since World War II caused an inertial transfer of power toward the executive branch. The monopoly on use of nuclear weaponry, the cult of the commander in chief, the worldwide network of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the entire national security state, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that has melded World War II with the cold war and the cold war with the “war on terror”—all these make a vast and intricate structure that may not yield to effort at dismantling it. Sixty-eight straight years of war emergency powers (1941–2009) have made the abnormal normal, and constitutional diminishment the settled order.

Categories: Government, History, Politics