You can't get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: "No person shall be… deprived of life, liberty, or property, without due process of law." In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted — about one-third of the text is missing — Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury, and executioner.
Looking back on the violations of justice that characterized British rule in pre-Constitutional America, it is easy to see the Founders' intent in creating the Fifth Amendment. A government's ability to inflict harm on its people, whether by taking their lives, imprisoning them, or confiscating their property, was to be checked by due process.
Due process is the only requirement of government that is stated twice in the Constitution, signaling its importance. The Fifth Amendment imposed the due process requirement on the federal government, while the Fourteenth Amendment did the same for the states. Both offer a crucial promise to the people that fair procedures will remain available to challenge government actions. The broader concept of due process goes all the way back to the thirteenth-century Magna Carta.
Due process, as refined over the years by the Supreme Court, came to take two forms in Constitutional America. The first was procedural due process: people threatened by government actions that might potentially take away life, liberty, or possessions would have the right to defend themselves from a power that sought, whether for good reasons or bad, to deprive them of something important. American citizens were guaranteed their proverbial “day in court.”
The second type, substantive due process, was codified in 1938 to protect those rights so fundamental that they are implicit in liberty itself, even when not spelled out explicitly in the Constitution. Had the concept been in place at the time, a ready example would have been slavery. Though not specifically prohibited by the Constitution, it was on its face an affront to democracy. No court process could possibly have made slavery fair. The same held, for instance, for the “right” to an education, to have children, and so forth. Substantive due process is often invoked by supporters of same-sex unions, who assert that there is a fundamental right to marry. The meaning is crystal clear: there is an inherent, moral sense of “due process” applicable to government actions against any citizen and it cannot be done away with legally. Any law that attempts to interfere with such rights is inherently unconstitutional.
On September 30, 2011, on the order of the president, a U.S. drone fired a missile in Yemen and killed Anwar al-Awlaki. A Northern Virginia Islamic cleric, in the aftermath of 9/11 he had been invited to lunch at the Pentagon as part of a program to create ties to Muslim moderates. After he moved to Yemen a few years later, the U.S. accused him of working with al-Qaeda as a propagandist who may have played an online role in persuading others to join the cause. (He was allegedly linked to the “Underwear Bomber” and the Fort Hood shooter.) However, no one has ever accused him of pulling a trigger or setting off a bomb, deeds that might, in court, rise to the level of a capital crime. Al-Awlaki held a set of beliefs and talked about them. For that he was executed without trial.
In March 2012, Attorney General Eric Holder made quite a remarkable statement about the al-Awlaki killing. He claimed “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” In other words, according to the top legal authority in the nation, a White House review was due process enough when it came to an American citizen with al-Qaeda sympathies. In this, though it was unknown at the time, Holder was essentially quoting a secret white paper on that killing produced by the Office of Legal Counsel, located in the department he headed.
In June 2014, after a long court battle to shield the underlying legal basis for the killing, the Obama administration finally released a redacted version of that classified 2010 white paper. In the end, it did so only because without its release key senators were reluctant to confirm the memo’s author, David Barron, who had been nominated by President Obama to serve on the First Circuit Court of Appeals. (Once it was made public, Barron was indeed confirmed.)
The importance of the white paper to understanding Post-Constitutional America cannot be understated. Despite all the unconstitutional actions taken by the government since 9/11 — including striking violations of the Fourth Amendment — this paper is to date the only glimpse we have of the kind of thinking that has gone into Washington’s violations of the Bill of Rights.
Here's the terrifying part: ostensibly the result of some of the best legal thinking available to the White House on a issue that couldn’t be more basic to the American system, it wouldn't get a first-year law student a C-. The arguments are almost bizarrely puerile in a document that is a visibly shaky attempt to provide cover for a pre-determined premise. No wonder the administration fought its release for so long. Its officials were, undoubtedly, ashamed of it. Let's drill down.
Death by Pen
For the killing of an American citizen to be legal, the document claims, you need one essential thing: "an informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack against the United States." In addition, capture must be found to be unfeasible and the act of killing must follow the existing laws of war, which means drones are okay but poison gas is a no-no.
The rest of the justification in the white paper flows from that premise in a perverse chain of ankle-bone-connected-to-the-leg-bone logic: the president has the obligation to protect America; al-Qaeda is a threat; Congress authorized war against it; and being in al-Qaeda is more relevant than citizenship (or as the document crudely puts it, "citizenship does not immunize the target"). International borders and the sovereignty of other nations are not issues if the U.S. determines the host nation is "unwilling or unable to suppress the threat posed by the individual targeted." Basically, it’s all an extension of the idea of self-defense, with more than a dash of convenience shaken in.
When the white paper addresses the Fifth Amendment’s right to due process, and to a lesser extent, the Fourth Amendment’s right against unwarranted seizure (that is, the taking of a life), it dismisses them via the "balancing test." Not exactly bedrock constitutional material, it works this way: in situations where the government's interest overshadows an individual's interest, and the individual’s interest isn't that big a deal to begin with, and a mistake by the government can later be undone, the full due process clause of the Fifth Amendment need not come into play.
The three-point balancing test cited by the white paper as conclusive enough to justify the extrajudicial killing of an American comes from a 1976 Supreme Court case, Mathews v. Eldridge. There, the court held that an individual denied Social Security benefits had a right to some form of due process, but not necessarily full-blown hearings. In Anwar al-Awlaki's case, this translates into some truly dubious logic: the government's interest in protecting Americans overshadows one citizen's interest in staying alive. Somehow, the desire to stay alive doesn’t count for much because al-Awlaki belonged to al-Qaeda and was in the backlands of Yemen, which meant that he was not conveniently available by capture for a trial date. Admittedly, there’s no undoing death in a drone killing, but so what.
The white paper also draws heavily on the use of the balancing test in the case of Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan Yaser Hamdi, a Saudi-American citizen, and sought to detain him indefinitely without trial. After a long legal battle that went to the Supreme Court, the balance test was applied to limit — but not fully do away with — due process. Despite limiting Hamdi’s rights in service to the war on terror, the court was clear: Yaser Hamdi should have a meaningful opportunity to challenge his status. Fearing that giving him his moment in court would expose the brutal reality of his capture, interrogation, and detention, the U.S. government instead released him to Saudi Arabia.
Hamdi's case dealt with procedural questions, such as whether he should be allowed a trial and if so, under what conditions. As with Mathews v. Eldridge, Hamdi never focused on issues of life and death. Cases can be (re)tried, prisoners released, property returned. Dead is dead — in the case of al-Awlaki that applies to the drone’s target, the balance test, and the Fifth Amendment itself.
What Do Words Mean in Post-Constitutional America?
Having dispensed with significant constitutional issues thanks to some exceedingly dubious logic, the white paper returns to its basic premise: that a kill is legal when that "informed, high-level official” determines that an “imminent threat” to the country is involved. In other words, if the president is convinced, based on whatever proof is provided, he can order an American citizen killed. The white paper doesn’t commit itself on how far down the chain of “high-level officials” kill authority can be delegated. Could the Secretary of the Interior, for instance, issue such an order? He or she is, after all, eighth in the line of succession should the president die in office.
The white paper does, however, spend a fair amount of time explaining how the dictionary definitions of "imminent" and “immediate” do not apply. For kill purposes, it says, the U.S. must have "clear evidence that a specific attack on U.S. persons will take place in the immediate future." However, the paper goes on to explain that “immediate” can include a situation like al-Awlaki’s in which a person may or may not have been engaged in planning actual attacks that might not be launched for years, or perhaps ever. The paper claims that, since al-Qaeda would prefer to attack the U.S. on a continual basis, any planning or forethought today, however fantastical or future-oriented, constitutes an "imminent" attack that requires sending in the drones.
And if, as perhaps the author of the paper suspected, that isn’t really enough when faced with the bluntness of the Constitution on the issue, the white paper haphazardly draws on the public authority justification. According to this legal concept, public authorities can, in rare circumstances, violate the law — a cop can justifiably kill a bad guy under certain conditions. By extension, the white paper argues, the government of the United States can drone-kill a citizen who is allegedly a member of al-Qaeda. The white paper conveniently doesn’t mention that police shootings are subject to judicial review, and those who commit such unlawful acts can face punishment. The laws behind such a review are unclassified and public, not the rationed fodder of a redacted white paper.
For the final nail in the coffin of some American citizen, the white paper concludes that, Fifth Amendment violation or not, its arguments cannot be challenged in court. In cases of “foreign policy,” courts have traditionally almost always refused to intervene, holding that they are in the realm of the executive branch in consultation, as required, with Congress. Killing an American abroad, the white paper insists, is a foreign policy act and so none of any courts' business.
Substantive due process legally applies only to legislation, and it is highly unlikely that the Obama administration will seek legislative sanction for its kill process. So it is in one sense not surprising that the white paper makes no mention of it. However, looking at what we can read of that redacted document through the broader lens of substantive due process does tell us a lot about Post-Constitutional America. In Constitutional America, the idea was that a citizen’s right to life and the due process that went with it was essentially an ultimate principle that trumped all others, no matter how bad or evil that person might be. What is important in the white paper is not so much what is there, but what is missing: a fundamental sense of justness.
As medieval kings invoked church sanction to justify evil deeds, so in our modern world lawyers are mobilized to transform government actions that spit in the face of substantive due process — torture, indefinite detention without charge, murder — into something “legal.” Torture morphs into acceptable enhanced interrogation techniques, indefinite detention acquires a quasi-legal stance with the faux-justice of military tribunals, and the convenient murder of a citizen is turned into an act of “self-defense.” However unpalatable Anwar al-Awlaki's words passed on via the Internet may have been, they would be unlikely to constitute a capital crime in a U.S. court. His killing violated the Fifth Amendment both procedurally and substantively.
Despite its gravity, once the white paper was pried loose from the White House few seemed to care what it said. Even the New York Times, which had fought in court alongside the ACLU to have it released, could only bring itself to editorialize mildly that the document offered “little confidence that the lethal action was taken with real care” and suggest that the rubber-stamp secret Foreign Intelligence Surveillance Court be involved in future kill orders. The ACLU's comments focused mostly on the need for more documentation on the kills. Meanwhile, a majority of Americans, 52%, approve of drone strikes, likely including the one on Anwar al-Awlaki.
The Kind of Country We Live In
We have fallen from a high place. Dark things have been done. Imagine, pre-9/11, the uproar if we had learned that the first President Bush had directed the NSA to sweep up all America's communications without warrant, or if Bill Clinton had created a secret framework to kill American citizens without trial. Yet such actions over the course of two administrations are now accepted as almost routine, and entangled in platitudes falsely framing the debate as one between “security” and “freedom.” I suspect that, if they could bring themselves to a moment of genuine honesty, the government officials involved in creating Post-Constitutional America would say that they really never imagined it would be so easy.
In one sense, America the Homeland has become the most significant battleground in the war on terror. No, not in the numbers of those killed or maimed, but in the broad totality of what has been lost to us for no gain. It is worth remembering that, in pre-Constitutional America, a powerful executive — the king — ruled with indifference to the people. With the Constitution, we became a nation, in spirit if not always in practice, based on a common set of values, our Bill of Rights. When you take that away, we here in Post-Constitutional America are just a trailer park of strangers.
Peter Van Buren blew the whistle on State Department waste and mismanagement during the Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A Tom Dispatch regular, he writes about current events at his blog, We Meant Well. His new book, Ghosts of Tom Joad: A Story of the #99Percent, is available now.
Copyright 2014 Peter Van Buren
Dead Is Dead
As America's new economy starts to look more like the old economy of the Great Depression, the divide between rich and poor, those who have made it and those who never will, seems to grow ever starker. I know. I’ve seen it firsthand.
Once upon a time, I worked as a State Department officer, helping to carry out the occupation of Iraq, where Washington’s goal was regime change. It was there that, in a way, I had my first taste of the life of the 1%. Unlike most Iraqis, I had more food and amenities than I could squander, nearly unlimited funds to spend as I wished (as long as the spending supported us one-percenters), and plenty of U.S. Army muscle around to keep the other 99% at bay. However, my subsequent whistleblowing about State Department waste and mismanagement in Iraq ended my 24-year career abroad and, after a two-decade absence, deposited me back in “the homeland.”
I returned to America to find another sort of regime change underway, only I wasn't among the 1% for this one. Instead, I ended up working in the new minimum-wage economy and saw firsthand what a life of lousy pay and barely adequate food benefits adds up to. For the version of regime change that found me working in a big box store, no cruise missiles had been deployed and there had been no shock-and-awe demonstrations. Nonetheless, the cumulative effects of years of deindustrialization, declining salaries, absent benefits, and weakened unions, along with a rise in meth and alcohol abuse, a broad-based loss of good jobs, and soaring inequality seemed similar enough to me. The destruction of a way of life in the service of the goals of the 1%, whether in Iraq or at home, was hard to miss. Still, I had the urge to see more. Unlike in Iraq, where my movements were limited, here at home I could hit the road, so I set off for a look at some of America's iconic places as part of the research for my book, Ghosts of Tom Joad.
Here, then, are snapshots of four of the spots I visited in an empire in decline, places you might pass through if you wanted to know where we’ve been, where we are now, and (heaven help us) where we’re going.
On the Boardwalk: Atlantic City, New Jersey
Drive in to Atlantic City on the old roads, and you’re sure to pass Lucy the Elephant. She’s not a real elephant, of course, but a wood and tin six-story hollow statue. First built in 1881 to add value to some Jersey swampland, Lucy has been reincarnated several times after suffering fire, neglect, and storm damage. Along the way, she was a tavern, a hotel, and — for most of her life — simply an “attraction.” As owning a car and family driving vacations became egalitarian rights in the booming postwar economy of the 1950s and 1960s, all manner of tacky attractions popped up along America’s roads: cement dinosaurs, teepee-shaped motels, museums of oddities, and spectacles like the world’s largest ball of twine. Their growth paralleled 20 to 30 years of the greatest boom times any consumer society has ever known.
Between 1947 and 1973, actual incomes in the United States rose remarkably evenly across society. Certainly, there was always inequality, but never as sharp and predatory as it is today. As Scott Martelle's Detroit: A Biography chronicles, in 1932, Detroit produced 1.4 million cars; in 1950, that number was eight million; in 1973, it peaked at 12 million. America was still a developing nation — in the best sense of that word.
Yet as the U.S. economy changed, money began to flow out of the working class pockets that fed Lucy and her roadside attraction pals. By one count, from 1979 to 2007, the top 1% of Americans saw their income grow by 281%. They came to control 43% of U.S. wealth.
You could see it all in Atlantic City, New Jersey. For most of its early life, it had been a workingman's playground and vacation spot, centered around its famous boardwalk. Remember Monopoly? The street names are all from Atlantic City. However, in the economic hard times of the 1970s, as money was sucked upward from working people, Boardwalk and Park Place became a crime scene, too dangerous for most visitors. Illegal drug sales all but overtook tourism as the city’s most profitable business.
Yet the first time I visited Atlantic City in the mid-1980s, it looked like the place was starting to rebound in the midst of a national economy going into overdrive. With gambling legalized, money poured in. The Boardwalk sprouted casinos and restaurants. Local business owners scrambled to find workers. Everyone and everything felt alive. Billboards boasted of “rebirth.”
Visit Atlantic City in 2014 and it’s again a hollowed-out place. The once swanky mall built on one of the old amusement piers has more stores shuttered than open. Meanwhile, the “We Buy Gold” stores and pawnshops have multiplied and are open 24/7 to rip off the easy marks who need cash bad enough to be out at 4 A.M. pulling off their wedding rings. On a 20-story hotel tower, you can still read the word “Hilton” in dirt shadow where its name had once been, before the place was shuttered.
Trump Plaza, a monument to excess and hubris created by a man once admired as a business magician and talked about as a possible presidential candidate, is now a catalog of decay. The pillows in the rooms smell of sweat, the corners of doors are chipped, many areas need a new coat of paint, and most of the bars and restaurants resemble the former Greyhound bus terminal a few blocks away. People covered with the street gravy that marks the homeless wander the casino, itself tawdry and too dimly lit to inspire fun. There were just too many people who were clearly carrying everything they owned around in a backpack.
Outside, along the Boardwalk, there are still the famous rolling chairs. They are comfortable, bound in wicker, and have been a fixture of Atlantic City for decades. They were once pushed by strong young men, maybe college students earning a few bucks over summer break. You can still ride the chairs to see and be seen, but now they’re pushed by recent immigrants and not-so-clean older denizens of the city. Lots of tourists still take rides, but there’s something cheap and sad about paying workers close to my own age to wheel you around, just a step above pushing dollars into the G-strings of the strippers in clubs just off the Boardwalk.
One of the things I did while in Atlantic City was look for the family restaurant I had worked in 30 years earlier. It's now a dollar store run by an angry man. “You buy or you leave,” he said. Those were the last words I heard in Atlantic City. I left.
Dark Side of the Moon: Weirton, West Virginia
The drive into Weirton from the east takes you through some of the prettiest countryside in Maryland and Western Pennsylvania. You cross rivers and pass through the Cumberland Gap along the way and it’s easy going into the town, because the roads are mostly empty during typical business hours. There's nothing much going on. The surrounding beauty just makes the scarred remains of Weirton that much more shocking when you first come upon them. Take the last turn and suddenly the abandoned steel mills appear like a vision of an industrial apocalypse, nestled by the Ohio River.
In 1909, Ernest T. Weir built his first steel mill next to that river and founded what later became the Weirton Steel Corporation. In the decades to come, the town around it and the mill itself were basically synonymous, both fueled by the industrial needs of two world wars and the consumer economy created following the defeat of Germany and Japan. The Weirton mill directly contributed to wartime triumphs, producing artillery shells and raw steel to support the effort, while Weirton’s sons died on battlefields using the company’s products. (A war memorial across the street from the mill sanctifies the dead, the newest names being from the battlefields of Iraq and Afghanistan.)
At its peak, the Weirton Steel Corporation employed more than 12,000 people, and was the largest single private employer and taxpayer in West Virginia. The owners of the mill paid for and built the Weirton Community Center, the Weirton General Hospital, and the Mary H. Weir Library in those glory days. For years the mill also paid directly for the city’s sewers, water service, and even curbside garbage pickup. Taxes were low and life was good.
In the 1970s and early 1980s, however, costs rose, Asian steel gained traction and American manufacturing started to move offshore. For the first time since the nineteenth century, the country became a net importer of goods. Some scholars consider the mid-1970s a tipping point, when Congress changed the bankruptcy laws to allow troubled companies an easier path to dumping existing union contracts and employee agreements. It was then that Congress also invented individual retirement accounts, or IRAs, which were supposed to allow workers to save money tax-free to supplement their retirements. Most corporations saw instead an opportunity to get rid of expensive pensions. It was around then that some unknown steelworker was first laid off in Weirton, a candidate for Patient Zero of the new economy.
The mill, which had once employed nearly one out of every two people in town, was sold to its employees in 1984 in a final, failed attempt at resuscitation. In the end, the factory closed, but the people remained. Today, the carcass of the huge steel complex sits at one end of Main Street, rusting and overgrown with weeds because it wasn’t even cost-effective to tear it down. Dinosaur-sized pieces of machinery litter the grounds, not worth selling off, too heavy to move, too bulky to bury, like so many artifacts from a lost civilization. A few people do still work nearby, making a small amount of some specialty metal, but the place seems more like a living museum than a business.
Most of the retail shops on Main Street are now abandoned, though I counted seven bars and two strip clubs. There's the Mountaineer Food Bank that looks like it used to be a hardware store or maybe a dress shop. The only still-thriving industry is, it seems, gambling. West Virginia legalized “gaming” in 1992 and it’s now big business statewide. (Nationally, legal gambling revenues now top $92.27 billion a year.)
Gambling in Weirton is, however, a far cry even from the decaying Trump Hotel in Atlantic City. There are no Vegas-style casinos in town, just what are called “cafes” strung along Main Street. None were built to be gambling havens. In fact, their prior history is apparent in their architecture: this one a former Pizza Hut, that one an old retail store with now-blacked out windows, another visibly a former diner.
One sunny Tuesday, I rolled into a cafe at 7 A.M., mostly because I couldn’t believe it was open. It took my eyes a minute to adjust to the darkness before I could make out three older women feeding nickels into slot machines, while another stood behind a cheap padded bar, a cigarette tucked behind her ear, another stuck to her dry lips. She offered me a drink, gesturing to rows of Everclear pure grain, nearly 99% pure alcohol, and no-name vodka behind her. I declined, and she said, “Well, if you can't drink all day, best anyway that you not start so early.”
Liquor is everywhere in Weirton. I talked to a group of men drinking out of paper bags on a street corner at 8 A.M. They hadn’t, in fact, been there all night. They were just starting early like the cafe lady said. Even the gas stations were stocked with the ubiquitous Everclear, all octane with no taste or flavor added because someone knew that you didn’t care anymore. And as the state collects tax on it, everyone but you wins.
Booze is an older person's formula for destruction. For the younger set, it’s meth that’s really destroying Weirton and towns like it across the Midwest. Ten minutes in a bar, a nod at the guy over there, and you find yourself holding a night's worth of the drug. Small sizes, low cost, adapted to the market. In Weirton, no need even to go shopping, the meth comes to you.
Meth and the Rust Belt were just waiting for each other. After all, it’s a drug designed for unemployed people with poor self-images and no confidence. Unlike booze or weed, it makes you feel smart, sexy, confident, self-assured — before the later stages of addiction set in. For a while, it seems like the antidote to everything real life in the New Economy won’t ever provide. The meth crisis, in the words of author Nick Reding in Methland: The Death and Life of an American Small Town, is “as much about the death of a way of life as the birth of a drug.”
The effects of a lifetime working in the mill — or for the young, of a lifetime not working in the mill — were easy enough to spot around town. The library advertised free diabetes screening and the one grocery store had signs explaining what you could and could not buy with SNAP (food stamps, which have been called the Supplemental Nutrition Assistance Program since 2008). The local TV channels were chock-a-block full of lawyers’ ads urging you to call in if you have an asbestos-related illness. A lot of health was left behind in those mills.
There are some nice people in Weirton (and Cleveland, Detroit, or any of the other industrial ghost towns once inhabited by what Bruce Springsteen calls “steel and stories”). I’m sure there were even nicer parts of Weirton further away from the Main Street area where I was hanging out, but if you’re a stranger, it’s sure damn hard to find them. Not too far from the old mill, land was being cleared to make way for a new Walmart, a company which already holds the distinction of being West Virginia’s largest private employer.
In 1982 at the Weirton mill, a union journeyman might have earned $25 an hour, or so people told me. Walmart pays seven bucks for the same hour and fights like a junkyard dog against either an increase in the minimum wage or unionization.
The Most Exclusive Gated Community: U.S. Marine Corps Base, Camp Lejeune, North Carolina
I grew up in a fairly small Ohio town that, in the 1970s, was just crossing the sociological divide between a traditional kind of place and a proper bedroom suburb. Not everyone knew each other, but certain principles were agreed upon. A steak should be one inch thick or more. A good potluck solved most problems. Vegetables were boiled, faith rewarded. Things looked better in the morning. Kids drank chocolate milk instead of Coke. We had parades every Memorial Day and every Fourth of July, but Labor Day was just for barbecues because school began the next day and dad had to get up for work. In fact, that line — “I’ve got to get up for work” — was the way most social events broke up. This isn't nostalgia, it's history.
In 2014, you could travel significant parts of the decaying Midwest and not imagine that such a place had ever existed. But turn south on Interstate 95 and look for the signs that say “Welcome to U.S. Marine Corps Base Camp Lejeune,” in Jacksonville, North Carolina. Actually, welcome to almost any U.S. military base outside of actual war zones, where a homogeneous military population and generous government spending (re)creates the America of the glory days as accurately as a Hollywood movie. For a first-time visitor, a military base can feel like its own living museum, the modern equivalent of Colonial Williamsburg.
Streets are well maintained, shaded by tall trees planted there (and regularly pruned) for just that purpose. Road, water, and sewer crews are always working. There are no potholes. There is a single school with a prominent football field, and a single shopping area. The restaurants are long-time Department of Defense franchise partners and there’s always a pizza place with a fake-sounding Italian name. Those creature comforts on such bases in the U.S. and around the world come at a cost to taxpayers of billions of dollars a year.
Some of the places employ locals, some military spouses, some high school kids earning pocket money after school. The kids bag groceries. Everybody tips them; they're neighbors.
The centerpieces of any base like Camp Lejeune are the Base Exchange and the Commissary. The former is a mini-Walmart; the latter, a large grocery store. Both are required by law not to make a profit and so sell products at near wholesale prices. Because everyone operates on federal property, no sales tax is charged. When a member of a Pentagon advisory board proposed shutting down some of the commissaries across the U.S., a step that would have saved taxpayers about $1.4 billion a year, World War III erupted in Congress and halted the idea.
Over in officers' housing areas, everyone cuts their lawns, has a garage full of sports equipment and a backyard with a grill. Don’t keep up your assigned housing unit and you’ll hear from a senior officer. People get along — they’re ordered to do so.
The base is the whole point of Jacksonville, the town that surrounds it. The usual bars and strip clubs service the Marines, and Camp Lejeune is close to being the town's sole employer like that old steel mill in Weirton or the gambling palaces in Atlantic City. The base shares another connection to places like Weirton: as men lost their health in the mills thanks to asbestos and other poisons, so Camp Lejeune's drinking water was contaminated with trichloroethylene, a known carcinogen, between 1953 and 1987.
There, however, the similarities end.
Unlike the archipelago of American towns and cities abandoned to shrivel and die, the “city” inside Camp Lejeune continues to thrive, since its good times are fully covered by taxpayer money. The 23% of the national budget spent on defense assures places like Camp Lejeune of their prosperity.
And the military pays well; no scrambling for a minimum wage at Camp LeJeune. With combat pay more or less standard since 9/11 (the whole world being a battlefield, of course), the Congressional Budget Office estimates that the average active duty service member receives a benefits and pay compensation package worth $99,000. This includes a livable pension after 20 years of service, free medical and dental care, free housing, a clothing allowance, and more. In most cases, dependents of service members continue to live on a base in the United States while their husbands or wives, fathers or mothers serve abroad. Unlike in the minimum-wage jobs many other Americans now depend on, service members can expect regular training and skills enhancement and a clear path to promotion. Nearly every year, Congress votes for pay increases. The arguments for military benefits may be clear — many service members lead difficult and dangerous lives. The point is, however, that the benefits exist, unlike in so many corporate workplaces today. The government pays for all of them, while Atlantic City and Weirton struggle to stay above water.
Small Town America in the Big Apple: Spanish Harlem
The number of Americans who have visited Harlem, even for a quick stop at a now-trendy restaurant or music club, is unknown but has to be relatively small. Even many lifetime New Yorkers riding the uptown subway under the wealthy upper east side are careful to hop off before reaching the 116th Street stop. Still, get off there, walk a few blocks, and you find yourself in a micro-economy that, in its own way, has more in common with America of the 1950s than 2014.
There are, of course, no shaded areas along the block I was visiting in what has traditionally been known as Spanish Harlem, no boyish Little League games. But what you do find are locally owned stores with hardly a franchised or corporately owned place in sight. The stores are stocked with a wondrous hodge-podge of what people in the area need, including South American root vegetables, pay-as-you-go cell phones, and cheap school supplies.
These stores could not exist in many other places. They are perfectly adapted to the neighborhood they are in. While the quality of goods varies, prices are wondrously below what similar things cost a half-dozen subway stops away in midtown Manhattan. In the stores, the employees of these family businesses speak the same languages as their mostly Dominican immigrant customers, and those who work there are eager to make suggestions and help you find things.
People actually chat with each other. Customer loyalty is important, so prices are often negotiable. When he discovered that his customer was also his neighbor, one shop owner helped carry purchases upstairs. Another store informally accepted and held package deliveries for neighbors.
The guy selling frozen ices on the sidewalk nearby did not work for a conglomerate and doled out healthy-sized servings to his regulars. He told me that he bought his raw materials in the very grocery store we were camped in front of.
Even at night, the sidewalks here are full of people. I never felt unsafe, even though I obviously wasn’t from the neighborhood. People seemed eternally ready to give me directions or suggest a local eatery I shouldn’t miss. The one established mega-corporate store in the area, a Rent-a-Center charging usurious prices for junk, had no customers inside on the day I visited. The shop next to it, with an impressive array of used TVs and small appliances from unknown Chinese manufacturers, seemed to be doing gangbuster business. The owner shifted among English, Spanish, and some sort of Dominican creole based on the needs of his customers.
Few things here are shiny or new. There are vacant lots, an uncomfortable sight at night. Homeless people, some near naked despite the weather and muttering to themselves, are more prevalent than in Midtown. The streets have more trash. I saw drug deals going on against graffiti-scarred walls. There is a busy methadone clinic on a busy street. Not everyone is the salt of the earth, but local businesses do cater to the community and keep prices in line with what people could pay. Money spent in the neighborhood mostly seems to stay there and, if not, is likely sent home to the Dominican Republic to pay for the next family member's arrival in town — what economist John Maynard Keynes called the "local multiplier effect." One
study found that each $100 spent at local independents generated $45 of secondary local spending, compared to $14 at a big-box chain. Business decisions — whether to open or close, staff up or lay off — were made by people in the area face-to-face with those they affected. The businesses were accountable, the owners at the cash registers.
The stretch of Spanish Harlem I passed through is a galaxy away from perfect, but unlike Weirton, which had long ago given up, Atlantic City, which was in the process of doing so, or Camp Lejeune, which had opted out of the system entirely, people are still trying. It shows that an accountable micro-economy with ties to the community can still work in this country — at least in the short run. But don’t hold your breath. Target recently opened its first superstore not far away and may ultimately do to this neighborhood what cheap foreign steel imports did to Weirton.
I grew up in the Midwest at a time when the country still prided itself on having something of a conscience, when it was a place still built on hope and a widespread belief that a better future was anybody’s potential birthright. Inequity was always there, and there were always rich people and poor people, but not in the ratios we see now in America. What I found in my travels was place after place being hollowed out as wealth went elsewhere and people came to realize that, odds on, life was likely to get worse, not better. For most people, what passed for hope for the future meant clinging to the same flat-lined life they now had.
What’s happening is both easy enough for a traveler to see and for an economist to measure. Median household income in 2012 was no higher than it had been a quarter-century earlier. Meanwhile, expenses had outpaced inflation. U.S. Census Bureau figures show that the income gap between rich and poor had widened to a more than four-decade record since the 1970s. The 46.2 million people in poverty remained the highest number since the Census Bureau began collecting that data 53 years ago. The gap between how much total wealth America's 1% of earners control and what the rest of us have is even wider than even in the years preceding the Great Depression of 1929. Argue over numbers, debate which statistics are most accurate, or just drive around America: the trend lines and broad patterns, the shadows of our world of regime change, are sharply, sadly clear.
After John Steinbeck wrote The Grapes of Wrath, he said he was filled with “certain angers at people who were doing injustices to other people." I, too, felt anger, though it’s an emotion that I’m unsure how to turn against the problems we face.
As I drove away from Atlantic City, I passed Lucy the Elephant still at her post, unblinking and silent. She looks out over the Boardwalk, maybe America itself, and if she could, she undoubtedly would wonder where the road ahead will take us.
Peter Van Buren blew the whistle on State Department waste and mismanagement during Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A TomDispatch regular, he writes about current events at his blog, We Meant Well. His book Ghosts of Tom Joad: A Story of the #99Percent has just been published.
Copyright 2014 Peter Van Buren
This Land Isn’t Your Land, This Land Is Their Land
There are many sides to whistleblowing. The one that most people don’t know about is the very personal cost, prison aside, including the high cost of lawyers and the strain on family relations, that follows the decision to risk it all in an act of conscience. Here’s a part of my own story I’ve not talked about much before.
At age 53, everything changed. Following my whistleblowing first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, I was run out of the good job I had held for more than 20 years with the U.S. Department of State. As one of its threats, State also took aim at the pension and benefits I’d earned, even as it forced me into retirement. Would my family and I lose everything I’d worked for as part of the retaliation campaign State was waging? I was worried. That pension was the thing I’d counted on to provide for us and it remained in jeopardy for many months. I was scared.
My skill set was pretty specific to my old job. The market was tough in the Washington, D.C. area for someone with a suspended security clearance. Nobody with a salaried job to offer seemed interested in an old guy, and I needed some money. All the signs pointed one way — toward the retail economy and a minimum-wage job.
And soon enough, I did indeed find myself working in exactly that economy and, worse yet, trying to live on the money I made. But it wasn’t just the money. There’s this American thing in which jobs define us, and those definitions tell us what our individual futures and the future of our society is likely to be. And believe me, rock bottom is a miserable base for any future.
Old World/New World
The last time I worked for minimum wage was in a small store in my hometown in northern Ohio. It was almost a rite of passage during high school, when I pulled in about four bucks an hour stocking shelves alongside my friends. Our girlfriends ran the cash registers and our moms and dads shopped in the store. A good story about a possible date could get you a night off from the sympathetic manager, who was probably the only adult in those days we called by his first name. When you graduated from high school, he would hire one of your friends and the cycle would continue.
At age 53, I expected to be quizzed about why I was looking for minimum-wage work in a big box retail store we’ll call “Bullseye.” I had prepared a story about wanting some fun part-time work and a new experience, but no one asked or cared. It felt like joining the French Foreign Legion, where you leave your past behind, assume a new name, and disappear anonymously into the organization in some distant land. The manager who hired me seemed focused only on whether I’d show up on time and not steal. My biggest marketable skill seemed to be speaking English better than some of his Hispanic employees. I was, that is, “well qualified.”
Before I could start, however, I had to pass a background and credit check, along with a drug test. Any of the anonymous agencies processing the checks could have vetoed my employment and I would never have known why. You don’t have any idea what might be in the reports the store receives, or what to feel about the fact that some stranger at a local store now knows your financial and criminal history, all for the chance to earn seven bucks an hour.
You also don’t know whether the drug tests were conducted properly or, as an older guy, if your high blood pressure medicine could trigger a positive response. As I learned from my co-workers later, everybody always worries about “pissing hot.” Most places that don’t pay much seem especially concerned that their workers are drug-free. I’m not sure why this is, since you can trade bonds and get through the day higher than a bird on a cloud. Nonetheless, I did what I had to in front of another person, handing him the cup. He gave me one of those universal signs of the underemployed I now recognize, a we’re-all-in-it, what’re-ya-gonna-do look, just a little upward flick of his eyes.
Now a valued member of the Bullseye team, I was told to follow another employee who had been on the job for a few weeks, do what he did, and then start doing it by myself by the end of my first shift. The work was dull but not pointless: put stuff on shelves; tell customers where stuff was; sweep up spilled stuff; repeat.
It turned out that doing the work was easy compared to dealing with the job. I still had to be trained for that.
You had to pay attention, but not too much. Believe it or not, that turns out to be an acquired skill, even for a former pasty government bureaucrat like me. Spend enough time in the retail minimum-wage economy and it’ll be trained into you for life, but for a newcomer, it proved a remarkably slow process. Take the initiative, get slapped down. Break a rule, be told you’re paid to follow the rules. Don’t forget who’s the boss. (It’s never you.) It all becomes who you are.
Diving straight from a salaried career back into the kiddie pool was tough. I still wanted to do a good job today, and maybe be a little better tomorrow. At first, I tried to think about how to do the simple tasks more efficiently, maybe just in a different order to save some walking back and forth. I knew I wasn’t going to be paid more, but that work ethic was still inside of me. The problem was that none of us were supposed to be trying to be good, just good enough. If you didn’t know that, you learned it fast. In the process, you felt yourself getting more and more tired each day.
Patient Zero in the New Economy
One co-worker got fired for stealing employee lunches out of the break room fridge. He apologized to us as security marched him out, saying he was just hungry and couldn’t always afford three meals. I heard that when he missed his rent payments he’d been sleeping in his car in the store parking lot. He didn’t shower much and now I knew why. Another guy, whose only task was to rodeo up stray carts in the parking lot, would entertain us after work by putting his cigarette out on his naked heel. The guys who came in to clean up the toilets got up each morning knowing that was what they would do with another of the days in their lives.
Other workers were amazingly educated. One painted in oils. One was a recent college grad who couldn’t find work and liked to argue with me about the deeper meanings in the modern fiction we’d both read.
At age 53, I was the third-oldest minimum-wage worker in the store. A number of the others were single moms. (Sixty-four percent of minimum-wage employees are women. About half of all single-parent families live in poverty.) There was at least one veteran. (“The Army taught me to drive a Humvee, which turns out not to be a marketable skill.”) There were a couple of students who were alternating semesters at work with semesters at community college, and a small handful of recent immigrants. One guy said that because another big box store had driven his small shop out of business, he had to take a minimum-wage job. He was Patient Zero in our New Economy.
State law only required a company to give you a break if you worked six hours or more under certain conditions. Even then, it was only 30 minutes — and unpaid. You won’t be surprised to discover that, at Bullseye, most non-holiday shifts were five-and-a-half hours or less. Somebody said it might be illegal not to give us more breaks, but what can you do? Call 911 like it was a real crime?
Some good news, though. It turned out that I had another marketable skill in addition to speaking decent English: being old. One day as a customer was bawling out a younger worker over some imagined slight, I happened to wander by. The customer assumed I was the manager, given my age, and began directing her complaints at me. I played along, even steepling my fingers to show my sincere concern just as I had seen actual managers do. The younger worker didn’t get in trouble, and for a while I was quite popular among the kids whenever I pulled the manager routine to cover them.
Hours were our currency. You could trade them with other employees if they needed a day off to visit their kid’s school. You could grab a few extra on holidays. If you could afford it, you could swap five bad-shift hours for three good-shift hours. The store really didn’t care who showed up as long as someone showed up. Most minimum-wage places cap workers at under 40 hours a week to avoid letting them become “full time” and so possibly qualify for any kind of benefits. In my case, as work expanded and contracted, I was scheduled for as few as seven hours a week and I never got notice until the last moment if my hours were going to be cut.
Living on a small paycheck was hard enough. Trying to budget around wildly varying hours, and so paychecks, from week to week was next to impossible. Seven hours a week at minimum wage was less than fifty bucks. A good week around the Christmas rush was 39 hours, or more than $270. At the end of 2013, after I had stopped working at Bullseye, the minimum wage did go up from a little more than $7 to $8 an hour, which was next to no improvement at all. Doesn’t every little bit help? Maybe, but what are a few more crumbs of bread worth when you need a whole loaf not to be hungry?
Working to Be Poor
So how do you live on $50 a week, or for that matter, $270 a week? Cut back? Recycle cans?
One answer is: you don’t live on those wages alone. You can’t. Luckily I had some savings, no kids left in the house to feed, and my wife was still at her “good” job. Many of my co-workers, however, dealt with the situation by holding down two or three minimum-wage jobs. Six hours on your feet is tough, but what about 12 or 14? And remember, there are no weekends or holidays in most minimum-wage jobs. Bullseye had even begun opening on Thanksgiving and Christmas afternoons.
The smart workers found their other jobs in the same strip mall as our Bullseye, so they could run from one to the next, cram in as many hours as they could, and save the bus fare. It mattered: at seven bucks an hour, that round trip fare meant you worked your first 45 minutes not for Bullseye but for the bus company. (The next 45 minutes you worked to pay taxes.)
Poverty as a Profit Center
Many low-wage workers have to take some form of public assistance. Food stamps — now called the Supplemental Nutrition Assistance Program, or SNAP — were a regular topic of conversation among my colleagues. Despite holding two or three jobs, there were still never enough hours to earn enough to eat enough. SNAP was on a lot of other American’s minds as well — the number of people using food stamps increased by 13% a year from 2008 to 2012. About 1 in 7 Americans get some of their food through SNAP. About 45% of food stamp benefits go to children.
Enjoying that Big Mac? Here’s one reason it’s pretty cheap and that the junk sold at “Bullseye” and the other big box stores is, too: those businesses get away with paying below a living wage and instead you, the taxpayer, help subsidize those lousy wages with SNAP. (And of course since minimum-wage workers have taxes deducted, too, they are — imagine the irony — essentially forced to subsidize themselves.)
That subsidy does not come cheap, either. The cost of public assistance to families of workers in the fast-food industry alone is nearly $7 billion per year. McDonald’s workers alone account for $1.2 billion in federal assistance annually.
All that SNAP money is needed to bridge the gap between what the majority of employed people earn through the minimum wage, and what they need to live a minimum life. Nearly three-quarters of enrollments in America’s major public benefits programs involve working families stuck in jobs like I had. There are a lot of those jobs, too. The positions that account for the most workers in the U.S. right now are retail salespeople, cashiers, restaurant workers, and janitors. All of those positions pay minimum wage or nearly so. Employers are actually allowed to pay below minimum wage to food workers who might receive tips.
And by the way, if somehow at this point you’re feeling bad for Walmart, don’t. In addition to having it’s workforce partially paid for by the government, Walmart also makes a significant portion of its profits by selling to people receiving federal food assistance. Though the Walton family is a little too shy to release absolute numbers, a researcher found that in one year, nine Walmart Supercenters in Massachusetts together received more than $33 million in SNAP dollars. One Walmart Supercenter in Tulsa, Oklahoma, received $15.2 million, while another (also in Tulsa) took in close to $9 million in SNAP spending.
You could say that taxpayers are basically moneylenders to a government that is far more interested in subsidizing business than in caring for their workers, but would anyone believe you?
Back in the Crosshairs
Some employees at Bullseye had been yelled at too many times or were too afraid of losing their jobs. They were not only broke, but broken. People — like dogs — don’t get that way quickly, only by a process of erosion eating away at whatever self-esteem they may still possess. Then one day, if a supervisor tells them by mistake to hang a sign upside down, they’ll be too afraid of contradicting the boss not to do it.
I’d see employees rushing in early, terrified, to stand by the time clock so as not to be late. One of my fellow workers broke down in tears when she accidentally dropped something, afraid she’d be fired on the spot. And what a lousy way to live that is, your only incentive for doing good work being the desperate need to hang onto a job guaranteed to make you hate yourself for another day. Nobody cared about the work, only keeping the job. That was how management set things up.
About 30 million Americans work this way, live this way, at McJobs. These situations are not unique to any one place or region. After all, Walmart has more than two million employees. If that company were an army, it would be the second largest military on the planet, just behind China. It is, in fact, the largest overall employer in the country and the biggest employer in 25 states. When Walmart won’t pay more than minimum, it hurts. When it rains like that, we all get wet. This is who we are now.
I Was Minimum
It’s time to forget the up-by-the-bootstraps fantasies of conservative economists bleating on Fox. If any of it was ever true, it’s certainly not true anymore. There is no ladder up, no promotion path in the minimum-wage world. You can’t work “harder” because your hours are capped, and all the jobs are broken into little pieces anyone could do anyway. Minimum wage is what you get; there are no real raises. I don’t know where all the assistant managers came from, but not from among us.
I worked in retail for minimum wage at age 16 and again at 53. In that span, the minimum wage itself rose only by a few bucks. What changed, however, is the cast of characters. Once upon a time, minimum-wage jobs were filled with high school kids earning pocket money. In 2014, it’s mainly adults struggling to get by. Something is obviously wrong.
In his State of the Union Address, President Obama urged that the federal minimum wage be raised to $9 an hour. He also said that a person holding down a full-time job should not have to live in poverty in a country like America.
To the president I say, yes, please, do raise the minimum wage. But how far is nine bucks an hour going to go? Are so many of us destined to do five hours of labor for the cell phone bill, another 12 for the groceries each week, and 20 or 30 for a car payment? How many hours are we going to work? How many can we work?
Nobody can make a real living doing these jobs. You can’t raise a family on minimum wage, not in the way Americans once defined raising a family when our country emerged from World War II so fat and happy. And you can’t build a nation on vast armies of working poor with nowhere to go. The president is right that it’s time for a change, but what’s needed is far more than a minimalist nudge to the minimum wage. Maybe what we need is to spend more on education and less on war, even out the tax laws and rules just a bit, require a standard living wage instead of a minimum one. Some sort of rebalancing. Those aren’t answers to everything, but they might be a start.
People who work deserve to be paid, but McDonald’s CEO Donald Thompson last year took home $13.7 million in salary, with perks to go.If one of his fry cooks put in 30 hours a week, she’d take in a bit more than $10,000 a year — before taxes of course. There is indeed a redistribution of wealth taking place in America, and it’s all moving upstream.
I got lucky. I won my pension fight with my “career” employer, the State Department, and was able to crawl out of the minimum-wage economy after less than a year and properly retire. I quit Bullseye because I could, one gray day when a customer about half my age cursed me out for something unimportant she didn’t like, ending with “I guess there’s a reason why people like you work at places like this.” I agreed with her: there is a reason. We just wouldn’t agree on what it was.
I’m different now for the experience. I think more about where I shop, and try to avoid big places that pay low wages if I can. I treat minimum-wage workers a little better, too. If I have to complain about something in a store, I keep the worker out of it and focus on solving the problem. I take a bit more care in the restroom not to leave a mess. I don’t get angry anymore when a worker says to me, “I really can’t do anything about it.” Now I know from personal experience that, in most cases, they really can’t.
Above all, I carry with me the knowledge that economics isn’t about numbers, it’s about people. I know now that it’s up to us to decide whether the way we pay people, the work we offer them, and how we treat them on the job is just about money or if it’s about society, about how we live, who we are, the nature of America. The real target now should be to look deeply into the apartheid of dollars our country has created and decide it needs to change. We — the 99% anyway — can’t afford not to.
Peter Van Buren blew the whistle on State Department waste and mismanagement during Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A TomDispatch regular, he writes about current events at his blog, We Meant Well. His new book, Ghosts of Tom Joad: A Story of the #99Percent, has just been published.
Copyright 2014 Peter Van Buren
An Apartheid of Dollars
Rahinah Ibrahim is a slight Malaysian woman who attended Stanford University on a U.S. student visa, majoring in architecture. She was not a political person. Despite this, as part of a post-9/11 sweep directed against Muslims, she was investigated by the FBI. In 2004, while she was still in the U.S. but unbeknownst to her, the FBI sent her name to the no-fly list.
Ibrahim was no threat to anyone, innocent of everything, and ended up on that list only due to a government mistake. Nonetheless, she was not allowed to reenter the U.S. to finish her studies or even attend her trial and speak in her own defense. Her life was derailed by the tangle of national security bureaucracy and pointless “anti-terror” measures that have come to define post-Constitutional America. Here’s what happened, and why it may matter to you.
The No-Fly List
On September 10, 2001, there was no formal no-fly list. Among the many changes pressed on a scared population starting that September 12th were the creation of two such lists: the no-fly list and the selectee list for travelers who were to undergo additional scrutiny when they sought to fly. If you were on the no-fly list itself, as its name indicated, you could not board a flight within the U.S. or one heading out of or into the country. As a flight-ban plan, it would come to extend far beyond America’s borders, since the list was shared with 22 other countries.
On January 2, 2005, unaware of her status as a threat to the United States, Ibrahim left Stanford for San Francisco International Airport to board a flight to Malaysia for an academic conference. A ticket agent saw her name flagged in the database and called the police.
Despite being wheelchair-bound due to complications from a medical procedure, Ibrahim was handcuffed, taken to a detention cell, and denied access to medication she had in hand. Without explanation, after extensive interrogation, she was allowed to board her flight. When she tried to return to America to resume her studies, however, she found herself banned as a terrorist.
Suing the United States
Stuck in Malaysia, though still in possession of a valid student visa, Ibrahim filed a lawsuit against the U.S. government, asking to be removed from the no-fly list and allowed back into the country to continue her architectural studies.
Over almost nine years, the U.S. Department of Justice (DOJ) employed an arsenal of dodges and post-9/11 tricks to impede her lawsuit, including invoking the “state secrets doctrine” to ensure that she would never have access to the records she needed. “State secrets” is not a law in the U.S., as it is, for example, in Great Britain, where the monarch also retains “Crown Privilege,” the absolute right to refuse to share information with Parliament or the courts. Here, it is instead a kind of assumed privilege and the courts accept it as such. Based on it, the president can refuse to produce evidence in a court case on the grounds that its public disclosure might harm national security. The government has, in the past, successfully employed this “privilege” to withhold information and dead-end legal challenges. Once “state secrets” is in play, there is literally nothing left to talk about in court.
A related DOJ dodge was also brought to bear in an attempt to derail Ibrahim’s case: the use of made-up classification categories that dispatch even routine information into the black world of national security. Much of the information concerning her placement on the no-fly list, for instance, was labeled Security Sensitive Information (SSI) and so was unavailable to her. SSI is among hundreds of post-9/11 security categories created via memo by various federal agencies. These categories, too, have no true legal basis. Congress never passed a law establishing anything called SSI, nor is there any law prohibiting the disclosure of SSI information. The abuse of such pseudo-classifications has been common enough in the post-9/11 years and figured significantly in the ongoing case of Transportation Security Administration (TSA) whistleblower Robert MacLean.
Next in its end-run around Ibrahim’s lawsuit, the DOJ pulled “standing” out of its bag of tricks. Standing is a legal term that means a person filing a lawsuit has a right to do so. For example, in some states you must be a resident to sue. Seeking to have a case thrown out because the plaintiff does not have standing was a tactic used successfully by the government in other national security cases. The ACLU, for instance, sued the National Security Agency for Fourth Amendment violations in 2008. The Supreme Court rejected the case in 2013 for lack of standing, claiming that unless the ACLU could conclusively prove it had been spied upon, it could not sue. In the wake of the Edward Snowden revelations showing that the NSA indeed spied widely on American citizens, the ACLU has revived the suit. It claims that the new documents provide clear evidence of broad-based surveillance and so now give it standing.
Standing was also used by the DOJ in the case of American citizen and purported al-Qaeda member Anwar al-Awlaki, whom the U.S. murdered by drone in Yemen. Prior to his son’s death, attorneys for al-Awlaki’s father tried to persuade a U.S. District Court to issue an injunction preventing the government from killing him. A judge dismissed the case, ruling that the father did not have standing to sue.
In Ibrahim’s no-fly case, the government argued that since she was not an American citizen, she had no standing to sue the government for its actions against her in the U.S. When all of those non-meritorious challenges failed to stop the case, the government invoked the very no-fly designation Ibrahim was challenging, and refused to allow her to travel to the United States to testify at her own trial.
Next, Ibrahim’s daughter, an American citizen traveling on a U.S. passport, was not allowed to board a flight from Malaysia to serve as a witness at her mother’s trial. She, too, was told she was on the no-fly list. After some legal tussling, however, she was finally allowed to fly to “the Homeland.” Why the American government changed its mind is classified and almost all of the trial transcript concerning the attempt to stop her from testifying was redacted from public disclosure.
In addition, by regularly claiming that classified information was going to be presented, the government effectively hid the ludicrous nature of the Ibrahim case from much public scrutiny. The trial was interrupted at least 10 times and the public, including journalists, were asked to leave the courtroom so that “classified evidence” could be presented.
A message of intimidation had been repeatedly delivered. It failed, however, and Ibrahim’s case went to trial, albeit without her present.
Despite years of effort by the DOJ, Ibrahim won her lawsuit. The U.S. District Court for Northern California ordered the removal of her name from the no-fly list. However, in our evolving post-Constitutional era, what that “victory” revealed should unnerve those who claim that if they are innocent, they have nothing to fear. Innocence is no longer a defense.
During the lawsuit, it was made clear that the FBI had never intended Ibrahim to be placed on the no-fly list. The FBI agent involved in the initial post-9/11 investigation of Ibrahim simply checked the wrong box on a paper form used to send people into travel limbo. It was a mistake, a slip up, the equivalent of a typo. There was no evidence that the agent intended harm or malice, nor it seems were there any checks, balances, or safeguards against such errors. One agent could, quite literally at the stroke of a pen, end someone’s education, job, and family visits, and there was essentially no recourse.
Throughout the nine years Ibrahim fought to return to the U.S., it appears that the government either knew all along that she was no threat and tried to cover up its mistake anyway, or fought her bitterly at great taxpayer expense without at any time checking whether the no-fly designation was ever valid. You pick which theory is most likely to disturb your sleep tonight.
Having won her case, Ibrahim went to the airport in Kuala Lumpur to fly back to Stanford and resume her studies. As she attempted to board the plane, however, she was pulled aside and informed that the U.S. embassy in Malaysia had without notice revoked her student visa. No visa meant, despite her court victory, she once again could not return to the United States.
At the U.S. embassy in Kuala Lumpur, Ibrahim was handed a preprinted “explanation” for the visa revocation with the word “terrorist” hand-written next to the boilerplate text. Ibrahim was never informed of her right under U.S. law to apply for a waiver of the visa revocation.
Though it refused to re-issue the visa, the State Department finally had to admit in court that it had revoked the document based solely on a computer “hit” in its name-checking database, the Consular Lookout and Support System (CLASS.) That hit, in turn, appeared to be a straggler from the now defunct no-fly list entry made erroneously by the FBI.
The State Department and CLASS
As is well known, the State Department issued legal visas to all of the 9/11 terrorists. In part, this was because the CIA and other U.S. intelligence agencies failed to tell State what they knew about the hijackers, as all were suspected to be bad guys. Then and now, such information is passed on when intelligence and law enforcement agencies make electronic entries in State’s computerized lookout system. CLASS is part of the Consular Consolidated Database, one of the largest known data warehouses in the world. As of December 2009, it contained over 100 million cases and 75 million photographs, and has a current growth rate of approximately 35,000 records per day. CLASS also collects the fingerprints of all foreigners issued visas.
The problem is that CLASS is a one-way street. Intelligence agencies can put data in, but can’t remove it because State keeps the database isolated from interactive data maintenance. In addition, the basic database it uses to screen out bad guys typically only has a subject’s name, nationality, and the most modest of identifying information, plus a numerical code indicating why a name was entered. One code, 3B, stands for “terrorist”; another, 2A, means “criminal”; and so forth through the long list of reasons the U.S. would not want to issue a visa. Some CLASS listings have just a partial name, and State Department visa-issuing officers regularly wallow through screen after screen of hits like: Muhammad, no last name, no date of birth, Egypt — all marked as “critical, Category One” but with no additional information.
Nor, when the information exists but was supplied by another agency, do U.S. embassies abroad have direct access to the files. Instead, when a State Department official gets a name “hit” overseas, she must send a “Security Advisory Opinion,” or SAO, back to Washington asking for more information. The recipient of that cable at Foggy Bottom must then sort out which intelligence agency entered the data in the first place and appeal to it for an explanation.
At that point, intelligence agencies commonly to refuse to share more, claiming that no one at State has the proper clearances and that department should just trust their decision to label someone a bad guy and refuse to issue, or pro-actively revoke, a visa. If, on the other hand, information is shared, it is often done on paper by courier. In other words, a guy shows up at State with a bundle of documents, waits while someone reviews them, and then spirits them back to the CIA, the FBI, or elsewhere. That way, the intelligence agencies, always distrustful of State, are assured that nothing will be leaked or inadvertently disclosed.
In cases where no more information is available, or what is available is inconclusive, the State Department might allow the visa application to pend indefinitely under the heading “administrative processing,” or simply “prudentially” revoke or not issue the visa. No one wants to risk approving a visa for the next 9/11 terrorist, even if it’s pretty obvious that the applicant is nothing of the sort.
This undoubtedly is what happened to Ibrahim. Though the details remain classified, State certainly didn’t possess super secret information on her unavailable to other law enforcement or intelligence outfits. Some official surely decided to take no chances and revoked her visa “prudentially” based on the outdated information still lodged in CLASS.
Not CLASS Alone
Ibrahim’s case also reveals just how many secret databases of various sorts exist in Washington. Here’s how a name (your name?) gets added to one of those databases, and how it then populates other lists around the world.
A name is nominated for the no-fly list by one of hundreds of thousands of government officials: an FBI agent, a CIA analyst, a State Department visa officer. Each nominating agency has its own criteria, standards, and approval processes, some — as with the FBI in Ibrahim’s case — apparently pretty sloppy.
The nominated name is then sent to the Terrorist Screening Center (TSC) at a classified location in suburban Northern Virginia. TSC is a multi-agency outfit administered by the FBI and staffed by officials from the Department of Homeland Security, the Department of State, and all of the Intelligence Community.
Once a name is approved by the TSC (the process is classified), it will automatically be entered into a number of databases, possibly including but not necessarily limited to:
*the Department of Homeland Security’s no-fly list;
*that same department’s selectee list that ensures chosen individuals will be subject to additional airport screening;
*the State Department’s Consular Lookout and Support System (CLASS, including CLASS-Visa for foreigners and CLASS-Passport for U.S. Citizens);
*the Department of Homeland Security’s TECS (a successor to the Treasury Enforcement Communications System), which is used in part by customs officials, as well as its Interagency Border Inspection System (IBIS), used by immigration officials;
*the Known and Suspected Terrorist File (KSTF, previously known as the Violent Gang and Terrorist Organizations File);
*TUSCAN, a database maintained by Canada;
*TACTICS, a database maintained by Australia;
*and finally, an unknown number of other law enforcement and intelligence agency databases, as well as those of other foreign intelligence services with which information may be shared.
As Ibrahim discovered, once a name is selected, it travels deep and far into both U.S. and foreign databases. If one clears one’s name from one database, there are many others out there waiting. Even a comprehensive victory in one nation’s courts may not affect the records of a third country. And absent frequent travel, a person may never even know which countries have him or her on their lists, thanks to the United States.
Once she learned that her student visa had been revoked in Malaysia, Ibrahim sued again, asking that the State Department reissue it. The government successfully blocked this suit, citing a long-established precedent that visa matters are essentially an administrative function and so not subject to judicial review.
A court did scold State for failing to notify Ibrahim of her right to seek a waiver, as it was required to do by law. To the extent that Ibrahim’s case has any life left in it, her next step would be to return to the Department of Justice’s bailiwick and apply for a waiver of the revocation the State Department made based on data given to it by the DOJ that both outfits know was struck down by a court. It’s that “simple.” Meanwhile, she cannot return to the U.S.
Nothing to Hide?
A common trope for those considering the way the National Security Agency spies on almost everyone everywhere all the time is that if you have nothing to hide, you have nothing to fear. If your cell phone conversations are chit-chats with mom and your emails tend toward forwards of cute cat videos, why should you care if the NSA or anyone else is snooping?
Ask Rahinah Ibrahim about that. She did nothing wrong and so should have had nothing to fear. She even has a court decision declaring that she never was nor is a threat to the United States, yet she remains outside America’s borders. Her mistaken placement on the no-fly list plunged her head first into a nightmarish world that would have been all too recognizable to Franz Kafka. It is a world run by people willing to ignore reality to service their bureaucratic imperatives and whose multiplying lists are largely beyond the reach of the law.
Sad as it may be, the Ibrahim case is a fairly benign example of ordinary Washington practices in the post-9/11 era. Ibrahim is going about her life at peace in Malaysia. Her tangle with the United States seems to have been more a matter of bureaucratic screw-ups than anything else. No one sought to actively destroy her. She was not tortured in a CIA black site, nor left for years in a cage at Guantanamo. Her case is generally seen as, at worst, another ugly stain on the white wall we imagine we are as a nation.
But the watch lists are there. The tools are in place. And one thing is clear: no one is guarding the guards. You never know whose name just went on a list. Maybe yours?
Peter Van Buren blew the whistle on State Department waste and mismanagement during Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A TomDispatch regular, he writes about current events at his blog,We Meant Well. His latest book, a novel, Ghosts of Tom Joad: A Story of the #99Percent, is now available.
[Note to Readers: As with so many TomDispatch articles, you can fact-check this one by reviewing the same sources I drew from via links in the piece. Since many of the facts of Ibrahim’s case come from her suit against the Department of Homeland Security, however, I have limited the repetition of that link for ease of reading. You can find it by clicking here.]
Copyright 2014 Peter Van Buren
How Many Watch Lists Fit on the Head of a Pin?
The Obama administration has just opened a new front in its ongoing war on whistleblowers. It’s taking its case against one man, former Transportation Security Administration (TSA) Air Marshal Robert MacLean, all the way to the Supreme Court. So hold on, because we’re going back down the rabbit hole with the Most Transparent Administration ever.
Despite all the talk by Washington insiders about how whistleblowers like Edward Snowden should work through the system rather than bring their concerns directly into the public sphere, MacLean is living proof of the hell of trying to do so. Through the Supreme Court, the Department of Justice (DOJ) wants to use MacLean’s case to further limit what kinds of information can qualify for statutory whistleblowing protections. If the DOJ gets its way, only information that the government thinks is appropriate — a contradiction in terms when it comes to whistleblowing — could be revealed. Such a restriction would gut the legal protections of the Whistleblower Protection Act and have a chilling effect on future acts of conscience.
Having lost its case against MacLean in the lower courts, the DOJ is seeking to win in front of the Supreme Court. If heard by the Supremes — and there’s no guarantee of that — this would represent that body’s first federal whistleblower case of the post-9/11 era. And if it were to rule for the government, even more information about an out-of-control executive branch will disappear under the dark umbrella of “national security.”
On the other hand, should the court rule against the government, or simply turn down the case, whistleblowers like MacLean will secure a little more protection than they’ve had so far in the Obama years. Either way, an important message will be sent at a moment when revelations of government wrongdoing have moved from the status of obscure issue to front-page news.
The issues in the MacLean case — who is entitled to whistleblower protection, what use can be made of retroactive classification to hide previously unclassified information, how many informal classification categories the government can create bureaucratically, and what role the Constitution and the Supreme Court have in all this — are arcane and complex. But stay with me. Understanding the depths to which the government is willing to sink to punish one man who blew the whistle tells us the world about Washington these days and, as they say, the devil is in the details.
Robert MacLean, Whistleblower
MacLean’s case is simple — and complicated.
Here’s the simple part: MacLean was an air marshal, flying armed aboard American aircraft as the last defense against a terror attack. In July 2003, all air marshals received a briefing about a possible hijacking plot. Soon after, the TSA, which oversees the marshals, sent an unencrypted, open-air text message to their cell phones cancelling several months of missions for cost-cutting reasons. Fearing that such cancellations in the midst of a hijacking alert might create a dangerous situation for the flying public, MacLean worked his way through the system. He first brought his concerns to his supervisor and then to the Department of Homeland Security’s inspector general. Each responded that nothing could be done.
After hitting a dead end, and hoping that public pressure might force the TSA to change its policy, MacLean talked anonymously to a reporter who broadcast a critical story. After 11 members of Congress pitched in, the TSA reversed itself. A year later, MacLean appeared on TV in disguise to criticize agency dress and boarding policies that he felt made it easier for passengers to recognize marshals who work undercover. (On your next flight keep an eye out for the young man in khakis with a fanny pack and a large watch, often wearing a baseball cap and eyeing boarders from a first class seat.) This time the TSA recognized MacLean’s voice and discovered that he had also released the unclassified 2003 text message. He was fired in April 2006.
When MacLean contested his dismissal through internal government channels, he discovered that, months after firing him, the TSA had retroactively classified the text message he had leaked. Leaking classified documents is more than cause enough to fire a federal worker, and that might have been the end of it. MacLean, however, was no typical cubicle-dwelling federal employee. An Air Force veteran, he asserted his status as aprotected whistleblower and has spent the last seven years marching through the system trying to get his job back.
How Everything in Government Became Classified
The text message MacLean leaked was retroactively classified as “security sensitive information” (SSI), a designation that had been around for years but whose usage the TSA only codified via memo in November 2003. When it comes to made-up classifications, that agency’s set of them proved to be only one of 28 known versions that now exist within the government bureaucracy. In truth, no one is sure how many varieties of pseudo-classifications even exist under those multiple policies, or how many documents they cover as there are no established reporting requirements.
By law there are officially only three levels of governmental classification: confidential, secret, and top secret. Other indicators, such as NOFORN and ORCON, seen for instance on some of the NSA documents Edward Snowden released, are called “handling instructions,” although they, too, function as unofficial categories of classification. Each of the three levels of official classification has its own formal definition and criteria for use. It is theoretically possible to question the level of classification of a document. However much they may be ignored, there are standards for their declassification and various supervisors can also shift levels of classification as a final report, memo, or briefing takes shape. The system is designed, at least in theory and occasionally in practice, to have some modicum of accountability and reviewability.
The government’s post-9/11 desire to classify more and more information ran head on into the limits of classification as enacted by Congress. The response by various agencies was to invent a proliferation of designations like SSI that would sweep unclassified information under the umbrella of classification and confer on ever more unclassified information a (sort of) classified status. In the case of the TSA, the agency even admits on its own website that a document with an SSI stamp is unclassified, but prohibits its disclosure anyway.
Imagine the equivalent at home: you arbitrarily establish a classification called Spouse Sensitive Information that prohibits your partner from seeing the family bank statements. And if all this is starting to make no sense, then you can better understand the topsy-turvy world Robert MacLean found himself in.
MacLean Wins a Battle in Court
In 2013, after a long series of civil service and legal wrangles, the United States Court of Appeals for the Federal Circuit handed down a decision confirming the government’s right to retroactively classify information. This may make some sense — if you squint hard enough from a Washington perspective. Imagine a piece of innocuous information already released that later takes on national security significance. A retroactive classification can’t get the toothpaste back in the tube, but bureaucratically speaking it would at least prevent more toothpaste from being squeezed out. The same ruling, of course, could also be misused to ensnare someone like MacLean who shared unclassified information.
The court also decided that, retrospective classification or not, MacLean was indeed entitled to protection under the Whistleblower Protection Act of 1989. That act generally limits its protections to “disclosures not specifically prohibited by law,” typically held to mean unclassified material. This, the court insisted, was the category MacLean fit into and so could not be fired. The court avoided the question of whether or not someone could be fired for disclosing retroactively classified information and focused on whether a made-up category like SSI was “classified” at all.
The court affirmed that laws passed by Congress creating formal classifications like "top secret" trump regulations made up by executive branch bureaucrats. In other words, as the Constitution intended, the legislative branch makes the laws and serves as a check and balance on the executive branch. Congress says what is classified and that say-so cannot be modified via an executive branch memo. One of MacLean’s lawyershailed the court’s decision as restoring “enforceability for the Whistleblower Protection Act's public free speech rights. It ruled that only Congress has the authority to remove whistleblower rights. Agency-imposed restraints are not relevant for whistleblower protection rights.”
The ruling made it clear that the TSA had fired MacLean in retaliation for a legally protected act of whistleblowing. He should have been offered his job back the next day.
Not a Happy Ending But a Sad New Beginning
No such luck. Instead, on January 27, 2014, the Department of Justice petitioned the Supreme Court to overturn the lower court’s decision. If it has its way, the next time a troublesome whistleblower emerges, the executive need only retroactively slap a non-reviewable pseudo-classification on whatever information has been revealed and fire the employee. The department is, then, asking the Supreme Court to grant the executive branch the practical power to decide whether or not a whistleblower is entitled to legal protection. The chilling effect is obvious.
In addition, the mere fact that the DOJ is seeking to bring the case via a petition is significant. Such petitions, called writs of certiorari, or certs, ask that the Supreme Court overturn a lower court's decision. Through the cert process, the court sets its own agenda. Some 10,000 certs are submitted in a typical year. Most lack merit and are quickly set aside without comment. Typically, fewer than 100 of those 10,000 are chosen to move forward for a possibly precedent-setting decision. However, only a tiny number of all the certs filed are initiated by the government; on average, just 15 in a Supreme Court term.
It’s undoubtedly a measure of the importance the Obama administration gives to preserving secrecy above all else that it has chosen to take such an aggressive stance against MacLean — especially given the desperately low odds of success. It will be several months before we know whether the court will hear the case.
This Is War
MacLean is simply trying to get his old air marshal job back by proving he was wrongly fired for an act of whistleblowing. For the rest of us, however, this is about much more than where MacLean goes to work.
The Obama administration’s attacks on whistleblowers are well documented. It has charged more of them — seven — under the Espionage Act than all past presidencies combined. In addition, it recently pressured State Department whistleblower Stephen Kim into a guilty plea (in return for a lighter sentence) by threatening him with the full force of that act. His case was even more controversial because the FBI named Fox News’s James Rosen as a co-conspirator for receiving information from Kim as part of his job as a journalist. None of this is accidental, coincidental, or haphazard. It’s a pattern. And it’s meant to be. This is war.
MacLean’s case is one more battle in that war. By taking the extraordinary step of going to the Supreme Court, the executive branch wants, by fiat, to be able to turn an unclassified but embarrassing disclosure today into a prohibited act tomorrow, and then use that to get rid of an employee. They are, in essence, putting whistleblowers in the untenable position of having to predict the future. The intent is clearly to silence them before they speak on the theory that the easiest leak to stop is the one that never happens. A frightened, cowed workforce is likely to be one result; another — falling into the category of unintended consequences — might be to force more potential whistleblowers to take the Manning/Snowden path.
The case against MacLean also represents an attempt to broaden executive power in another way. At the moment, only Congress can “prohibit actions under the law,” something unique to it under the Constitution. In its case against MacLean, the Justice Department seeks to establish the right of the executive and its agencies to create their own pseudo-categories of classification that can be used to prohibit actions not otherwise prohibited by law. In other words, it wants to trump Congress. Regulation made by memo would then stand above the law in prosecuting — or effectively persecuting — whistleblowers. A person of conscience like MacLean could be run out of his job by a memo.
In seeking to claim more power over whistleblowers, the executive also seeks to overturn another principle of law that goes by the term ex post facto. Laws are implemented on a certain day and at a certain time. Long-held practice says that one cannot be punished later for an act that was legal when it happened. Indeed, ex post facto criminal laws are expressly forbidden by the Constitution. This prohibition was written in direct response to the injustices of British rule at a time when Parliamentary laws could indeed criminalize actions retrospectively. While some leeway exists today in the U.S. for ex post facto actions in civil cases and when it comes to sex crimes against children, the issue as it affects whistleblowers brushes heavily against the Constitution and, in a broader sense, against what is right and necessary in a democracy.
When a government is of, by, and for the people, when an educated citizenry (in Thomas Jefferson’s words) is essential to a democracy, it is imperative that we all know what the government does in our name. How else can we determine how to vote, who to support, or what to oppose? Whistleblowers play a crucial role in this process. When the government willfully seeks to conceal its actions, someone is required to step up and act with courage and selflessness.
That our current government has been willing to fight for more than seven years — maybe all the way to the Supreme Court — to weaken legal whistleblowing protections tells a tale of our times. That it seeks to silence whistleblowers at a moment when their disclosures are just beginning to reveal the scope of our unconstitutional national security state is cause for great concern. That the government demands whistleblowers work within the system and then seeks to modify that same system to thwart them goes beyond hypocrisy.
This is the very definition of post-Constitutional America where legality and illegality blur — and always in the government’s favor; where the founding principles of our nation only apply when, as, and if the executive sees fit. The devil is indeed in the details.
Peter Van Buren blew the whistle on State Department waste and mismanagement in Iraq in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A TomDispatch regular, he writes about current events at his blog, We Meant Well. His next book, Ghosts of Tom Joad: A Story of the #99Percent, will be available in April.
Copyright 2014 Peter Van Buren
Silencing Whistleblowers Obama-Style
The debate Edward Snowden envisioned when he revealed the extent of National Security Agency (NSA) spying on Americans has taken a bad turn. Instead of a careful examination of what the NSA does, the legality of its actions, what risks it takes for what gains, and how effective the agency has been in its stated mission of protecting Americans, we increasingly have government officials or retired versions of the same demanding — quite literally — Snowden’s head and engaging in the usual fear-mongering over 9/11. They have been aided by a chorus of pundits, columnists, and present as well as former officials offering bumper-sticker slogans like "If you have nothing to hide, you have nothing to fear," all the while claiming our freedom is in direct conflict with our security.
1) NSA surveillance is legal.
True, if perhaps you put “legal” in quotes. After all, so was slavery once upon a time in the U.S. and apartheid in South Africa. Laws represent what a government and sometimes perhaps even a majority of the people want at a given point in time. They change and are changeable; what once was a potential felony in Colorado is now a tourist draw.
Laws, manipulated for terrible ends, must be challenged when they come into conflict with the fundamental principles and morals of a free society. Laws created Nelson Mandela, the terrorist (whom the U.S. kept on its terror watch list until 2008), and laws created Nelson Mandela, the president.
There’s a catch in the issue of legality and the NSA. Few of us can know just what the law is. What happens to you if you shoplift from a store or murder someone in a bar fight? The consequences of such actions are clearly codified and you can look them up. Is it legal to park over there? The rules are on a sign posted right where you'd like to pull in. If a cop tickets you wrongly, you can go to court and use that sign to defend yourself. Yet almost all of the applicable “law,” when it comes to the National Security Agency and its surveillance practices, was secret until Edward Snowden began releasing his documents. Secret interpretations of the shady Patriot Act made in a secret court applied. The fact that an unknown number of legal memos and interpretations of that secret law (themselves still classified) are operative means that we really don’t know what is legal anymore.
The panel of experts appointed by President Obama to review the Snowden revelations and the NSA’s actions had a peek into the issue of “legality” and promptly raised serious questions — as did one of the two federal courts that recently ruled on some aspects of the issue. If the Obama administration and the Justice Department really believe that all the NSA's activities will be proven legal in a court of law, why not allow them to be tested openly and unambiguously in public? After all, if you've done nothing illegal, then there’s nothing to hide.
When Amnesty International first tried to bring such a question before the courts, the case was denied because that organization couldn’t prove that it had been subject to monitoring — that was a secret, of course! — and so was denied standing even to bring the suit. Snowden's revelations seem to have changed all that. The documents made public have given “standing” to a staggering array of individuals, organizations, and countries. For the first time in 12 years, they pave the way for the issue to come to its proper venue in front of the Supremes. Openly. Publicly.
2) If I’ve done nothing wrong, I have nothing to hide. So why should I care about any of this?
Keep in mind that the definition of "wrong" can quickly change. And if you don't know what the actual law really is, how can you say that you know you have done nothing wrong? If you've got nothing to hide, post your social security number and credit card information online, leave your curtains open at night, and see how that sits with you.
In a larger sense, however, the very idea that “I've got nothing to hide” is a distraction. The Fourth Amendment guarantees a right to privacy. The Constitution does not ask if you want or need that right; it grants it to everyone, and demands that the government interfere with it only under specific circumstances.
The Fourth Amendment came into being because of the British use of general warrants in the colonial era. Under that “law,” they could legally search whole groupsof people, their possessions, and their papers without having to justify searching any specific person. Called “writs of assistance,” these general warrants allowed the King's agents to search anyone, anytime, regardless of whether they suspected that person of a crime. The writs were most often used by Royal Customs agents (an irony perhaps, given the draconian powers now granted to U.S. Customs agents to search anyone's personal electronics, including those of American citizens, at the border).
The U.S. fought a revolution, and James Madison wrote the Fourth Amendment, against broad government authority to search. Whether you personally do or do not have anything to hide is not even a question that should be on the table. It should be almost un-American to ask it.
3) But the media says the NSA only collects my "phone metadata," so I'm safe.
My older, conservative neighbor quickly insisted that collecting this metadata thing she had heard about on Fox was necessary to protect her from all the terrorists out here in suburbia. She then vehemently disagreed that it was okay for President Obama to know whom she called and when, from where to where and for how long, or for him to know who those people called and when, and so forth.
Metadata is important. Ever play the game “Six Degrees of Separation”? Silly as it seems, almost anyone is indeed just six hops away from anyone else. You know a guy in Detroit who has a friend in California who has a sister who cuts hair whose client is Kevin Bacon's high school classmate's cousin. You and that cousin are connected. Publicly available information tells us that the NSA traces “three hops” from a target: A knows B, C, and D. But once C morphs into a target, C's three hops mean the NSA can poke into E, F, and G, and so forth. The Guardian calculated that if A has 50 friends, the number of targets generated under the three-hop rule would be over 1.3 million people. I really do hope that you (and everyone you know, and they know) have nothing to hide.
4) Aren’t there are already checks and balances in our system to protect us against NSA overreach?
In recent years, the government has treated the king of all checks and balances, the Constitution, like a used Kleenex. The secret Foreign Intelligence and Surveillance Court (FISA) was set up to provide judicial oversight in a classified setting to the intelligence community. Theoretically, the government is required to make a compelling case for the issuance of orders authorizing electronic and other surveillance, physical searches, and compelled production of business records. Either the government is very good at making its case, or the court has become a rubber stamp: that secret FISA court approved all 1,789 requests submitted to it in 2012.
The Patriot Act elevated a once rarely used tool, the National Security Letter (NSL), into the mainstream of government practice. National Security Letters are an extraordinary search procedure that gives the FBI the power to compel the disclosure of customer records held by banks, telephone companies, Internet service providers, public libraries, and others. These entities are prohibited, or "gagged," from telling anyone about their receipt of the NSL. Though the Justice Department itself cited abuse of the letters by the FBI in 2008, in 2012 the FBI used 15,229 National Security Letters to gather information on Americans. NSLs do not require judicial approval and the built-in gag orders prevent anyone from seeking judicial relief; indeed, most people will never even know that they were the subject of an NSL. And at the moment, the Department of Justice is trying to keep classified an 86-page court opinion that determined the government violated the spirit of federal surveillance laws and engaged in unconstitutional spying.
Director of National Intelligence James Clapper directly lied to that check-and-balance branch of the government, Congress, in a public session. (He later termed his response the “least untruthful” answer.) And we wouldn’t even know that he lied, or much of anything else about the NSA's surveillance activities here or globally, if it weren’t for one man's courage in exposing them. The government had kept it all from us for 12 years and never showed the slightest sign of reconsidering any part of that policy. Without Snowden, we would not even know what needs checking and balancing.
5) But I trust Obama (Bush, the next president) on this.
I can guess what your opinions are of the people that run the Transportation Safety Administration or the Internal Revenue Service. On what basis, then, can you conclude that the NSA or any other part of the government is any more trustworthy or competent, or any less petty?
While the government does not trust you to know what it does, thanks again to the Snowden revelations, we know that the NSA trusts some foreign governments more than you. The NSA is already sharing at least some data about Americans with, at a minimum, British intelligence and the Israelis. And who knows how those governments use it or whom they share it with downstream?
Do you really trust all of them all the time to never make mistakes or act on personal grudges or political biases? History is clear enough on what former FBI director J. Edgar Hoover did with the personal information he was able to collect on presidents, the Supreme Court, Congressional representatives, Martin Luther King, and others in the Civil Rights movement. Among other things, he used his secretly obtained information to out gay members of government. As for the NSA, so far it hasn’t even been willing to answer the question of whether it’s been spying on, surveilling, or gathering metadata on members of Congress.
Still, let's assume that Obama or the next president or the one after that will never do anything bad with your personal data. Once collected, however, that data potentially exists forever. If the NSA is to be believed, it claims to hold metadata for only five years, though it can keep copies of intercepted communications from or about U.S. citizens indefinitely if the material contains “significant intelligence” or “evidence” of crimes. The NSA can hold on to your encrypted communications as long as is needed to break the encryption. The NSA can also keep indefinitely any information gathered for “cryptanalytic, traffic analysis, or signal exploitation purposes.” Data held is available to whoever can access it in the future, using whatever technologies come to exist. Trusting anyone with such power is foolish. And as for data security, we know of at least one recent instance when more than 1.7 million highly-classified NSA documents just walked out the door.
6) But don't private companies like Facebook already have access to and share a lot of my personal data? So what's wrong with the government having it, too?
While private companies can pass your private information to the government, either willingly or under secret compulsion, there still are some important differences.
At least in theory, it’s your choice to give data to private companies. You could stop using Facebook, after all. You can’t, however, opt out of the NSA. About the worst that Facebook and the others directly want is to take your money and send you spam. While certainly no angel, Facebook can’t arrest you, put you on the No-Fly list with no recourse, seize your property or put you under investigation, audit your finances, imprison you without trial as a terrorist, or order you assassinated by drone. Facebook can't suspend your civil rights; the government can. That is a big, big difference. And by the way, a proposed solution to the metadata collection problem — having private companies, not the NSA, hold the data — is no solution at all. Data stored and available to NSA analysts, wherever it is, is data stored and available to NSA analysts.
7) All this surveillance is distasteful and maybe even illegal, but isn’t it necessary to keep us safe? Isn’t it for our own good? Haven’t times changed and shouldn’t we acknowledge that?
This isn’t a new argument; it’s Old Reliable. It was the argument that Hoover, Senator Joseph McCarthy, and so many others made to justify the particular acts they chose to endorse to protect us against Communism. The 1976 Church Committee Report, the first and only large-scale review of America's internal spy networks, found that between 1953 and 1973 nearly a quarter of a million first-class letters were opened and photographed in the United States by the CIA. Like the NSA, it was at that time officially forbidden to spy on Americans domestically. It nonetheless produced a computerized index of nearly one and one-half million names. At least 130,000 first class letters were also opened and photographed by the FBI between 1940 and 1966, all to keep us safe and for our own good in changing times. I doubt many people now believe any of that is what kept the Reds at bay.
The same argument was made about the necessity of domestic surveillance during the Vietnam War. Again, from the Church Report, we learned that some 300,000 individuals were indexed in a CIA computer system and that separate files were created on approximately 7,200 Americans and more than 100 domestic groups under the umbrella of Operation MH/CHAOS, designed to ferret out supposed foreign influence on the antiwar movement. Intelligence files on more than 11,000 individuals and groups were created by the Internal Revenue Service between 1969 and 1973 and tax investigations were started on the “basis of political rather than tax criteria.” I doubt many people now believe any of that is what kept the nation from descending into chaos.
The Constitution and the Bill of Rights have matured with our nation, growing to end slavery, enhance the rights of women, and do away with Jim Crow and other immoral laws. The United States survived two world wars, the Cold War, and innumerable challenges without a massive, all-inclusive destruction of civil rights. Any previous diversions — Abraham Lincoln's suspension of habeas corpus during the Civil War is a favorite instance cited — were short, specific, and reversed or overturned. The Founders created the Bill of Rights to address, point-by-point, the abuses of power they experienced under an oppressive British government. (Look up the never-heard-from-again Third Amendment.) A bunch of angry jihadis, real and imagined, seems a poor reason to change that system.
8) Terrorists are everywhere and dangerous.
From 1776 to 2001 the United States did not experience a terror attack anywhere close to the scale of 9/11; the worst terror attack against the United States as of 9/10, the Oklahoma City bombing, claimed 168 lives compared to some 3,000 at the Twin Towers. Since 9/11 we have not had a comparable mass-scale terror attack. No dirty bombs at the Super Bowl, no biochemical nightmares, no suicide bombers in our shopping malls or theme parks. There have been only about 20 domestic terror-related deaths since 9/11. Your chances as an American of being killed by a terrorist (the figures are for the world, not just inside the U.S.) are about 1 in 20 million. The inevitable comparison shows the odds of being struck by lightning at 1 in 5.5 million. You are, in other words, about four times more likely to be struck by lightning than killed by a terrorist. Most of the “terrorists” arrested in this country post-9/11 have been tragicomic fabrications of the FBI. 9/11 was a one-off, an aberration, so unique that its “success” stunned even Osama bin Laden. It was a single morning of disaster and cannot be the justification for everything the government wishes to do forever after.
9) We've stayed safe. Doesn't that just prove all the government efforts have worked?
No, that's called false causality. There simply is no evidence that it's true, and much to the contrary. It’s the same as believing government efforts have prevented Martian attacks or wild lions in our bedrooms. For one thing, we already know that more NSA spying would not have stopped 9/11; most of the needed information was already held by the U.S. government and was simply not properly shared or acted upon. 9/11 was a policy failure, not a matter of too-little snooping. Today, however, it remains a straw-man justification for whatever the NSA wants to do, a way of scaring you into accepting anything from the desecration of the Fourth Amendment to taking off our shoes at airport security. But the government uses this argument endlessly to promote what it wants to do. Even the NSA's talking points recommend their own people say: “I much prefer to be here today explaining these programs, than explaining another 9/11 event that we were not able to prevent.”
At the same time, despite all this intrusion into our lives and the obvious violations of the Fourth Amendment, the system completely missed the Boston bombers, two of the dumbest, least sophisticated bro terrorists on the planet. Since 9/11, we have seen some 364,000 deaths in our schools, workplaces, and homes caused by privately owned firearms, and none of the spying or surveillance identified any of the killers in advance.
Maybe we should simply stop thinking about all this surveillance as a matter of stopping terrorists and start thinking more about what it means to have a metastasized global surveillance system aimed at spying on us all, using a fake argument about the need for 100% security in return for ever more minimal privacy. So much has been justified in these years — torture, indefinite detention, the Guantanamo penal colony, drone killings, wars, and the use of Special Operations forces as global assassination teams — by some version of the so-called ticking time bomb scenario. It’s worth getting it through our heads: there has never been an actual ticking time bomb scenario. The bogeyman isn't real. There's no monster hiding under your bed.
10) But doesn’t protecting America come first — before anything?
What exactly are we protecting from what? If, instead of spending trillions of dollars on spying and domestic surveillance, we had spent that same money on repairing our infrastructure and improving our schools, wouldn't we now have a safer, stronger America? Remember that famously absurd Vietnam War quote from an American officer talking about brutal attack on Ben Tre, "It became necessary to destroy the town to save it"? How can anyone say we are protecting our liberty and freedom by taking it away?
Peter Van Buren blew the whistle on State Department waste and mismanagement during Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A TomDispatch regular, he writes about current events at his blog, We Meant Well. Van Buren’s next book, is Ghosts of Tom Joad: A Story of the #99Percent.
Copyright 2014 Peter Van Buren
You Can’t Opt Out
What if Edward Snowden was made to disappear? No, I’m not suggesting some future CIA rendition effort or a who-killed-Snowden conspiracy theory of a disappearance, but a more ominous kind.
What if everything a whistleblower had ever exposed could simply be made to go away? What if every National Security Agency (NSA) document Snowden released, every interview he gave, every documented trace of a national security state careening out of control could be made to disappear in real-time? What if the very posting of such revelations could be turned into a fruitless, record-less endeavor?
Am I suggesting the plot for a novel by some twenty-first century George Orwell? Hardly. As we edge toward a fully digital world, such things may soon be possible, not in science fiction but in our world — and at the push of a button. In fact, the earliest prototypes of a new kind of “disappearance” are already being tested. We are closer to a shocking, dystopian reality that might once have been the stuff of futuristic novels than we imagine. Welcome to the memory hole.
Even if some future government stepped over one of the last remaining red lines in our world and simply assassinated whistleblowers as they surfaced, others would always emerge. Back in 1948, in his eerie novel 1984, however, Orwell suggested a far more diabolical solution to the problem. He conjured up a technological device for the world of Big Brother that he called “the memory hole.” In his dark future, armies of bureaucrats, working in what he sardonically dubbed the Ministry of Truth, spent their lives erasing or altering documents, newspapers, books, and the like in order to create an acceptable version of history. When a person fell out of favor, the Ministry of Truth sent him and all the documentation relating to him down the memory hole. Every story or report in which his life was in any way noted or recorded would be edited to eradicate all traces of him.
In Orwell’s pre-digital world, the memory hole was a vacuum tube into which old documents were physically disappeared forever. Alterations to existing documents and the deep-sixing of others ensured that even the sudden switching of global enemies and alliances would never prove a problem for the guardians of Big Brother. In the world he imagined, thanks to those armies of bureaucrats, the present was what had always been — and there were those altered documents to prove it and nothing but faltering memories to say otherwise. Anyone who expressed doubts about the truth of the present would, under the rubric of “thoughtcrime,” be marginalized or eliminated.
Government and Corporate Digital Censorship
Increasingly, most of us now get our news, books, music, TV, movies, and communications of every sort electronically. These days, Google earns more advertising revenue than all U.S. print media combined. Even the venerable Newsweek no longer publishes a paper edition. And in that digital world, a certain kind of “simplification” is being explored. The Chinese, Iranians, and others are, for instance, already implementing web-filtering strategies to block access to sites and online material of which their governments don’t approve. The U.S. government similarly (if somewhat fruitlessly) blocks its employees from viewing Wikileaks and Edward Snowden material (as well as websites like TomDispatch) on their work computers — though not of course at home. Yet.
Great Britain, however, will soon take a significant step toward deciding what a private citizen can see on the web even while at home. Before the end of the year, almost all Internet users there will be “opted-in” to a system designed to filter out pornography. By default, the controls will also block access to “violent material,” “extremist and terrorist related content,” “anorexia and eating disorder websites,” and “suicide related websites.” In addition, the new settings will censor sites mentioning alcohol or smoking. The filter will also block “esoteric material,” though a UK-based rights group says the government has yet to make clear what that category will include.
And government-sponsored forms of Internet censorship are being privatized. New, off-the-shelf commercial products guarantee that an organization does not need to be the NSA to block content. For example, the Internet security company Blue Coat is a domestic leader in the field and a major exporter of such technology. It can easily set up a system to monitor and filter all Internet usage, blocking web sites by their address, by keywords, or even by the content they contain. Among others, Blue Coat software is used by the U.S. Army to control what its soldiers see while deployed abroad, and by the repressive governments in Syria, Saudi Arabia, and Burma to block outside political ideas.
In a sense, Google Search already “disappears” material. Right now Google is the good guy vis-à-vis whistleblowers. A quick Google search (0.22 seconds) turns up more than 48 million hits on Edward Snowden, most of them referencing his leaked NSA documents. Some of the websites display the documents themselves, still labeled “Top Secret.” Less than half a year ago, you had to be one of a very limited group in the government or contractually connected to it to see such things. Now, they are splayed across the web.
Google — and since Google is the planet’s number one search engine, I’ll use it here as a shorthand for every search engine, even those yet to be invented — is in this way amazing and looks like a massive machine for spreading, not suppressing, news. Put just about anything on the web and Google is likely to find it quickly and add it into search results worldwide, sometimes within seconds. Since most people rarely scroll past the first few search results displayed, however, being disappeared already has a new meaning online. It’s no longer enough just to get Google to notice you. Getting it to place what you post high enough on its search results page to be noticed is what matters now. If your work is number 47,999,999 on the Snowden results, you’re as good as dead, as good as disappeared. Think of that as a starting point for the more significant forms of disappearance that undoubtedly lie in our future.
Hiding something from users by reprogramming search engines is one dark step to come. Another is actually deleting content, a process as simple as transforming the computer coding behind the search process into something predatory. And if Google refuses to implement the change-over to “negative searches,” the NSA, which already appears to be able to reach inside Google, can implant its own version of malicious code as it has already done in at least 50,000 instances.
But never mind the future: here’s how a negative search strategy is already working, even if today its focus — largely on pedophiles — is easy enough to accept. Google recently introduced software that makes it harder for users to locate child abuse material. As company head Eric Schmidt put it, Google Search has been “fine-tuned” to clean up results for more than 100,000 terms used by pedophiles to look for child pornography. Now, for instance, when users type in queries that may be related to child sexual abuse, they will find no results that link to illegal content. Instead, Google will redirect them to help and counseling sites. “We will soon roll out these changes in more than 150 languages, so the impact will be truly global,” Schmidt wrote.
While Google is redirecting searches for kiddie porn to counseling sites, the NSA has developed a similar ability. The agency already controls a set of servers codenamed Quantum that sit on the Internet’s backbone. Their job is to redirect “targets” away from their intended destinations to websites of the NSA’s choice. The idea is: you type in the website you want and end up somewhere less disturbing to the agency. While at present this technology may be aimed at sending would-be online jihadis to more moderate Islamic material, in the future it could, for instance, be repurposed to redirect people seeking news to an Al-Jazeera lookalike site with altered content that fits the government’s version of events.
However, blocking and redirecting technologies, which are bound to grow more sophisticated, will undoubtedly be the least of it in the future. Google is already taking things to the next level in the service of a cause that just about anyone would applaud. They are implementing picture-detection technology to identify child abuse photographs whenever they appear on their systems, as well as testing technology that would remove illegal videos. Google’s actions against child porn may be well intentioned indeed, but the technology being developed in the service of such anti-child-porn actions should chill us all. Imagine if, back in 1971, the Pentagon Papers, the first glimpse most Americans had of the lies behind the Vietnam War, had been deletable. Who believes that the Nixon White House wouldn’t have disappeared those documents and that history wouldn’t have taken a different, far grimmer course?
Or consider an example that’s already with us. In 2009, many Kindle owners discovered that Amazon had reached into their devices overnight and remotely deleted copies of Orwell’s Animal Farm and 1984 (no irony intended). The company explained that the books, mistakenly “published” on its machines, were actually bootlegged copies of the novels. Similarly, in 2012, Amazon erased the contents of a customer’s Kindle without warning, claiming her account was “directly related to another which has been previously closed for abuse of our policies.” Using the same technology, Amazon now has the ability to replace books on your device with “updated” versions, the content altered. Whether you are notified or not is up to Amazon.
In addition to your Kindle, remote control over your other devices is already a reality. Much of the software on your computer communicates in the background with its home servers, and so is open to “updates” that can alter content. The NSA uses malware — malicious software remotely implanted into a computer — to change the way the machine works. The Stuxnet code that likely damaged 1,000 centrifuges the Iranians were using to enrich uranium is one example of how this sort of thing can operate.
These days, every iPhone checks back with headquarters to announce what apps you’ve purchased; in the tiny print of a disclaimer routinely clicked through, Apple reserves the right to disappear any app for any reason. In 2004, TiVo sued Dish Network for giving customers set-top boxes that TiVo said infringed on its software patents. Though the case was settled in return for a large payout, as an initial remedy, the judge ordered Dish to electronically disable the 192,000 devices it had already installed in people’s homes. In the future, there will be ever more ways to invade and control computers, alter or disappear what you’re reading, and shunt you to sites weren’t looking for.
Snowden’s revelations of what the NSA does to gather information and control technology, which have riveted the planet since June, are only part of the equation. How the government will enhance its surveillance and control powers in the future is a story still to be told. Imagine coupling tools to hide, alter, or delete content with smear campaigns to discredit or dissuade whistleblowers, and the power potentially available to both governments and corporations becomes clearer.
The ability to move beyond altering content into altering how people act is obviously on governmental and corporate agendas as well. The NSA has already gathered blackmail data from the digital porn viewing habits of “radical” Muslims. The NSA sought to wiretap a Congressman without a warrant. The ability to collect information on Federal judges, government leaders, and presidential candidates makes J. Edgar Hoover’s 1950s blackmail schemes as quaint as the bobby socks and poodle skirts of that era. The wonders of the Internet regularly stun us. The dystopian, Orwellian possibilities of the Internet have, until recently, not caught our attention in the same way. They should.
Read This Now, Before It’s Deleted
The future for whistleblowers is grim. At a time not so far distant, when just about everything is digital, when much of the world’s Internet traffic flows directly through the United States or allied countries, or through the infrastructure of American companies abroad, when search engines can find just about anything online in fractions of a second, when the Patriot Act and secret rulings by the Foreign Intelligence Surveillance Court make Google and similar tech giants tools of the national security state (assuming organizations like the NSA don’t simply take over the search business directly), and when the sophisticated technology can either block, alter, or delete digital material at the push of a button, the memory hole is no longer fiction.
Leaked revelations will be as pointless as dusty old books in some attic if no one knows about them. Go ahead and publish whatever you want. The First Amendment allows you to do that. But what’s the point if no one will be able to read it? You might more profitably stand on a street corner and shout at passers by. In at least one easy-enough-to-imagine future, a set of Snowden-like revelations will be blocked or deleted as fast as anyone can (re)post them.
The ever-developing technology of search, turned 180 degrees, will be able to disappear things in a major way. The Internet is a vast place, but not infinite. It is increasingly being centralized in the hands of a few companies under the control of a few governments, with the U.S. sitting on the major transit routes across the Internet’s backbone.
About now you should feel a chill. We’re watching, in real time, as 1984 turns from a futuristic fantasy long past into an instructional manual. There will be no need to kill a future Edward Snowden. He will already be dead.
Peter Van Buren blew the whistle on State Department waste and mismanagement during Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A TomDispatch regular, he writes about current events at his blog, We Meant Well. His next book, Ghosts of Tom Joad: A Story of the #99Percent, will be available April 2014.
Copyright 2013 Peter Van Buren
Welcome to the Memory Hole
In the 1960s, John Kerry was distinctly a man of his times. Kennedy-esque, he went from Yale to Vietnam to fight in a lost war. When popular sentiments on that war shifted, he became one of the more poignant voices raised in protest by antiwar veterans. Now, skip past his time as a congressman, lieutenant governor of Massachusetts, senator, and presidential candidate (Swift Boated out of the race by the Republican right). Four decades after his Vietnam experience, he has achieved what will undoubtedly be the highest post of his lifetime: secretary of state. And he’s looked like a bumbler first class. Has he also been — once again — a true man of his time, of a moment in which American foreign policy, as well as its claim to global moral and diplomatic leadership, is in remarkable disarray?
In his nine months in office, Kerry’s State Department has one striking accomplishment to its name. It has achieved a new level of media savvy in promoting itself and plugging its highest official as a rock star, a world leader in his own right (complete with photo-ops and sophisticated image-making). In the meantime, the secretary of state has been stumbling and bloviating from one crisis to the next, one debacle to another, surrounded by the well-crafted imagery of diplomatic effectiveness. He and his errant statements have become global punch lines, but is he truly to blame for his performance?
If statistics were diplomacy, Kerry would already be a raging success. At the State Department, his global travels are now proudly tracked by the mile, by minutes flown, and by countries visited. State even has a near-real-time ticker page set up at its website with his ever-changing data. In only nine months in office, Kerry has racked up 222,512 miles and a staggering 482.39 hours in the air (or nearly three weeks total). The numbers will be going up as Kerry is currently taking a 10-day trip to deal with another NSA crisis, in Poland this time, as well as the usual hijinks in the Middle East. His predecessor, Hillary Clinton, set a number of diplomatic travel records. In fact, she spent literally a full year, one quarter of her four years in office, hopscotching the globe. By comparison, Cold War Secretary of State George Schultz managed less than a year of travel time in his six years in office.
Kerry’s quick start in racking up travel miles is the most impressive aspect of his tenure so far, given that it’s been accompanied by record foreign policy stumbles and bumbles. With the thought that frenetic activity is being passed off as diplomacy and accomplishment, let’s do a little continent hopping ourselves, surveying the diplomatic and foreign policy terrain the secretary’s visited. So, fasten your seatbelt, we’re on our way!
We’ll Be Landing in Just a Few Minutes… in Asia
Despite Asia’s economic importance, its myriad potential flashpoints, and the crucial question of how the Sino-American relationship will evolve, Kerry has managed to visit the region just once on a largely ceremonial basis.
Diplomatically speaking, the Obama administration’s much ballyhooed “pivot to Asia” seems to have run out of gas almost before it began and with little to show except some odd photos of the secretary of state looking like Fred Munster in Balinese dress at the Asia-Pacific Economic Conference. With President Obama then trapped in Washington by the shutdown/debt-ceiling crisis, Kerry seemed like a bystander at APEC, with China the dominant presence. He was even forced to suffer through a Happy Birthday sing-along for Russian President Vladimir Putin. In the meantime, the economy of Washington’s major ally, Japan, remains sleepy, even as opposition to the U.S.-backed Trans-Pacific Partnership free-trade pact grows and North Korea continues to expand its nuclear program seemingly unaffected by threats from Washington.
All in all, it’s not exactly an impressive picture, but rest assured that it’ll look as fetching as a bright spring day, once we hit our next stop. In fact, ladies and gentlemen, the pilot now asks that you all return to your seats, because we will soon be landing…
… in the Middle East
If any area of the world lacks a single bright spot for the U.S., it’s the Middle East. The problems, of course, extend back many years and many administrations. Kerry is a relative newcomer. Still, he’s made seven of his 15 overseas trips there, with zero signs of progress on the American agenda in the region, and much that has only worsened.
The sole pluses came from diplomatic activity initiated by powers not exactly considered Washington’s closest buddies: Russian President Putin’s moves in relation to Syria (on which more later) and new Iranian President Rouhani’s “charm offensive” in New York, which seems to have altered for the better the relationship between the two countries. In fact, both Putin’s and Rouhani’s moves are classic, well-played diplomacy, and only serve to highlight the amateurish quality of Kerry’s performance. On the other hand, the Obama administration’s major Middle East commitment — to peace negotiations between the Israelis and Palestinians — seems destined for a graveyard already piled high with past versions of the same.
Meanwhile, whatever spark remained of the Arab Spring in Egypt was snuffed out by a military coup, while the U.S. lamely took forever just to begin to cut off some symbolic military aid to the new government. American credibility in the region suffered further damage after State, in a seeming panic, closed embassies across the Middle East in response to a reputed major terror threat that failed to materialize anywhere but inside Washington’s Beltway.
Prince Bandar bin Sultan of Saudi Arabia was once nicknamed “Bandar Bush” for his strong support of the U.S. during the 1991 Desert Storm campaign and the Bush dynasty. He recently told European diplomats, however, that the Kingdom will launch a “major shift” in relations with the United States to protest Washington’s perceived inaction over the Syria war and its overtures to Iran. The Saudis were once considered, next to Israel, America’s strongest ally in the region. Kerry’s response? Fly to Paris for some “urgent talks.”
Meanwhile, the secretary of state has made no effort to draw down his fortress embassy in Baghdad, despite its “world’s largest” personnel count in a country where an American invasion and nine-year occupation resulted in a pro-Iranian government. Memories in the region aren’t as short as at the State Department, however, and Iraqis are unlikely to forget that sanctions, the U.S. invasion, and its aftermath resulted in the deaths of an estimated 4% of their country’s population. Kerry would be quick to condemn such a figure as genocidal had the Iranians or North Koreans been involved, but he remains silent now.
State doesn’t include Turkey in Kerry’s impressive Middle Eastern trip count, though he’s traveled there three times, with (again) little to show for his efforts. That NATO ally, which refused to help the Bush administration with its invasion of Iraq, continues to fight a border war with Iraqi Kurds. (Both sides do utilize mainly American-made weapons.) The Turks are active in Syria as well, supporting the rebels, fearing the Islamic extremists, lobbing mortar shells across the border, and suffering under the weight of that devastated country’s refugees. Meanwhile — a small regional disaster from a U.S. perspective — Turkish-Israeli relations, once close, continue to slide. Recently, the Turks even outed a Mossad spy ring to the Iranians, and no one, Israelis, Turks, or otherwise, seems to be listening to Washington.
Now, please return your tray tables to their upright and locked position, as we make our final approach to…
… Everywhere Else
Following more than 12 years of war with thousands of lives lost, Kerry was recently reduced to begging Afghanistan’s corrupt president, Hamid Karzai, to allow a mini-occupation’s worth of American troops to remain in-country past a scheduled 2014 tail-tucked departure by U.S. combat troops. (Kerry’s trip to Afghanistan had to be of the unannounced variety, given the security situation there.) Pakistan, sporting only a single Kerry visit, flaunts its ties to the Taliban while collecting U.S. aid. As they say, if you don’t know who the patsy is at a poker game, it’s you.
Relations with the next generation of developing nations, especially Brazil and India, are either stagnant or increasingly hostile, thanks in part to revelations of massive NSA spying. Brazil is even hosting an international summit to brainstorm ways to combat that agency’s Internet surveillance. Even stalwart Mexico is now lashing out at Washington over NSA surveillance.
After a flurry of empty threats, a spiteful passport revocation by Kerry’s State Department, a bungled extradition attempt in Hong Kong, and a diplomatic fiasco in which Washington forced the Bolivian president’s airplane to land in Austria for a search, Public Enemy Number One Edward Snowden is settling into life in Moscow. He’s even receiving fellow American whistleblowers as guests. Public Enemy Number Two, Julian Assange, continues to run WikiLeaks out of the Ecuadoran embassy in London. One could argue that either of the two men have had more direct influence on America’s status abroad than Kerry.
Now, please return to your seats, fasten your seat belts, and consider ordering a stiff drink. We’ve got some bumpy air up ahead as we’re…
… Entering Syrian Airspace
The final leg of this flight is Syria, which might be thought of as Kerry’s single, inadvertent diplomatic accomplishment (even if he never actually traveled there.)
Not long before the U.S. government half-shuttered itself for lack of funds, John Kerry was point man for the administration’s all-out efforts to attack Syria. It was, he insisted, “not the time to be silent spectators to slaughter.” That statement came as he was announcing the recruitment of France to join an impending U.S. assault on military facilities in and around the Syrian capital, Damascus. Kerry also vociferously beat the drums for war at a hearing held by the Senate Foreign Relations Committee.
His war diplomacy, however, quickly hit some major turbulence, as the British parliament, not eager to repeat its Iraq and Afghan misadventures, voted the once inconceivable — a straightforward, resounding no to joining yet another misguided American battle plan. France was soon backing out as well, even as Kerry clumsily tried to soften resistance to the administration’s urge to launch strikes against Bashar al-Assad’s regime with the bizarre claim that such an attack would be “unbelievably small.” (Kerry’s boss, President Obama, forcefully contradicted him the next day, insisting, “The United States military doesn’t do pinpricks.”)
Kerry had his moment of triumph, however, on a quick stop in London, where he famously and offhandedly said at a news conference that war could be avoided if the Syrians turned in their chemical weapons. Kerry’s own State Department issued an instant rejoinder, claiming the statement had been “rhetorical.” In practically the same heartbeat, the Russians stepped into the diplomatic breach. Unable to walk his statement back, Kerry was humiliatingly forced to explain that his once-rhetorical remark was not rhetorical after all. Vladimir Putin then arose as an unlikely peacemaker and yes, Kerry took another trip, this time to “negotiate” the details with the Russians, which seems largely to have consisted of jotting down Russian terms of surrender to cable back to Washington.
His “triumph” in hand, Kerry still wasn’t done. On September 19th, on a rare stopover in Washington, he claimed a U.N. report on Syria’s chemical weapons stated that the Assad regime was behind the chemical attack that had set the whole process in motion. (The report actually said that there was not enough evidence to assign guilt to any party.) Then, on October 7th, he effusively praised the Syrian president (from Bali) for his cooperation, only on October 14th to demand (from London) that a “transition government, a new governing entity” be put in place in Syria “in order to permit the possibility of peace.”
As for Kerry’s nine-month performance review, here goes: he often seems unsure and distracted, projecting a sense that he might prefer to be anywhere else than wherever he is. In addition, he’s displayed a policy-crippling lack of information, remarkably little poise, and strikingly bad word choice, while regularly voicing surprising new positions on old issues. The logical conclusion might be to call for his instant resignation before more damage is done. (God help us, some Democratic voters may actually find themselves secretly wondering whether the country dodged a bullet in 2004 when George W. Bush won his dismal second term in office.)
In his nine months as secretary of state, Kerry, the man, has shown a genuine capacity for mediocrity and an almost tragicomic haplessness. But blaming him would be like shouting at the waiter because your steak is undercooked.
Whatever his failings, John Kerry is only a symptom of Washington’s lack of a coherent foreign policy or sense of mission. Since the end of the Cold War, the U.S. has been adrift, as big and dangerous as an iceberg but something closer to the Titanic. President Bush, the father, and President Clinton, the husband, had at least some sense of when not to overdo it. They kept their foreign interventions to relatively neat packages, perhaps recognizing that they had ever less idea what the script was anymore.
Waking up on that clear morning of September 12, 2001, the administration of Bush, the son, substituted a crude lashing out and an urge for total domination of the Greater Middle East, and ultimately the planet, for foreign policy. Without hesitation, it claimed the world as its battlefield and then deployed the Army, the Marines, the Navy, the Air Force, growing Special Operations forces, paramilitarized intelligence outfits, and drone technology to make it so. They proved to be good killers, but someone seemed to forget that war is politics by other means. Without a thought-out political strategy behind it, war is simply violent chaos unleashed.
Diplomacy had little role in such a black-and-white world. No time was to be wasted talking to other countries: you were either with us or against us. Even our few remaining friends and allies had a hard time keeping up, as Washington promoted torture, sent the CIA out to kidnap people off the streets of global cities, and set up its own gulag with Guantanamo as its crown jewel. And of course, none of it worked.
Then, the hope and change Americans thought they’d voted into power in 2008 only made the situation worse. The Obama administration substituted directionless-ness for idiotic decisiveness, and visionless-ness for the global planning of mad visionaries, albeit with much the same result: spasmodic violence. The United States, after all, remains the biggest kid on the block, and still gets a modicum of respect from the tiny tots and the teens who remember better days, as well as a shrinking crew of aid-bought pals.
The days of the United States being able to treat the world as its chessboard are over. It’s now closer to a Rubik’s Cube that Washington can’t figure out how to manipulate. Across the globe, people noted how the World’s Mightiest Army was fought to a draw (or worse) in Iraq and Afghanistan by insurgents with only small arms, roadside bombs, and suicide bombers.
Increasingly, the world is acknowledging America’s Kerry-style clunkiness and just bypassing the U.S. Britain said no to war in Syria. Russia took over big-box diplomacy. China assumed the pivot role in Asia in every way except militarily. (They’re working on it.) The Brazilian president simply snubbed Obama, canceling a state visit over Snowden’s NSA revelations. Tiny Ecuador continues to raise a middle finger to Washington over the Assange case. These days, one can almost imagine John Kerry as the wallflower of some near-future international conference, hoping someone – anyone — will invite him to dance.
The American Century might be said to have lasted from August 1945 until September 2001, a relatively short span of 56 years. (R.I.P.) John Kerry’s frantic bumbling did not create the present situation; it merely added mirth to the funeral preparations.
Peter Van Buren blew the whistle on State Department waste and mismanagement during Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A TomDispatch regular, he writes about current events at his blog, We Meant Well. Van Buren’s next book, Ghosts of Tom Joad: A Story of the #99Percent, will be available in April 2014.
Copyright 2013 Peter Van Buren
Once again, we find ourselves at the day after 9/11, and this time America stands alone. Alone not only in our abandonment even by our closest ally, Great Britain, but in facing a crossroads no less significant than the one we woke up to on September 12, 2001. The past 12 years have not been good ones. Our leaders consistently let the missiles and bombs fly, resorting to military force and legal abominations in what passed for a foreign policy, and then acted surprised as they looked up at the sky from an ever-deeper hole.
At every significant moment in those years, our presidents opted for more, not less, violence, and our Congress agreed — or simply sat on its hands — as ever more moral isolation took the place of ever less diplomacy. Now, those same questions loom over Syria. Facing a likely defeat in Congress, Obama appears to be grasping — without any sense of irony — at the straw Russian President Vladimir Putin (backed by China and Iran) has held out in the wake of Secretary of State John Kerry’s off-the-cuff proposal that put the White House into a corner. After claiming days ago that the U.N. was not an option, the White House now seems to be throwing its problem to that body to resolve. Gone, literally in the course of an afternoon, were the administration demands for immediate action, the shots across the Syrian bow, and all that. Congress, especially on the Democratic side of the aisle, seems to be breathing a collective sigh of relief that it may not be forced to take a stand. The Senate has put off voting; perhaps a vote in the House will be delayed indefinitely, or maybe this will all blow over somehow and Congress can return to its usual partisan differences over health care and debt ceilings.
And yet a non-vote by Congress would be as wrong as the yes vote that seems no longer in the cards. What happens, in fact, if Congress doesn’t say no?
A History Lesson
The “Global War on Terror” was upon us in an instant. Acting out of a sense that 9/11 threw open the doors to every neocon fantasy of a future Middle Eastern and global Pax Americana, the White House quickly sought an arena to lash out in. Congress, acting out of fear and anger, gave the executive what was essentially a blank check to do anything it cared to do. Though the perpetrators of 9/11 were mostly Saudis, as was Osama bin Laden, al-Qaeda itself sought refuge in largely Taliban-controlled Afghanistan. So be it. The first shots of the War on Terror were fired there.
George W. Bush’s top officials, sure that this was their moment of opportunity, quickly slid destroying al-Qaeda as an organization into a secondary slot, invaded Afghanistan, and turned the campaign into a crusade to replace the Taliban and control the Greater Middle East. Largely through passivity, Congress said yes as, even in its earliest stages, the imperial nature of America’s global strategy revealed itself plain as day. The escape of Osama bin-Laden and much of al-Qaeda into Pakistan became little more than an afterthought as Washington set up what was essentially a puppet government in post-Taliban Afghanistan, occupied the country, and began to build permanent military bases there as staging grounds for more of the same.
Some two years later, a series of administration fantasies and lies that, in retrospect, seem at best tragicomic ushered the United States into an invasion and occupation of Iraq. Its autocratic leader and our former staunch ally in the region, Saddam Hussein, ruled a country that would have been geopolitically meaningless had it not sat on what Deputy Secretary of Defense Paul Wolfowitz called “a sea of oil” — and next to that future target of neocon dreams of conquest, Iran. Once again, Congress set off on a frenzied rush to yes, and a second war commenced out of the ashes of 9/11.
With the mighty American military now on their eastern and western borders and evidently not planning on leaving any time soon, Iranian officials desperately sought out American diplomats looking for some kind of rapprochement. They offered to assist in Afghanistan and, it was believed, to ensure that any American pilots shot down by accident over Iranian territory would be repatriated quickly. Channels to do so were reportedly established by the State Department and it was rumored that broader talks had begun. However, expecting a triumph in Iraq and feeling that the Iranians wouldn’t stand a chance against the “greatest force for liberation the world has ever known” (aka the U.S. military), a deeply overconfident White House snubbed them, dismissing them as part of the “Axis of Evil.” Congress, well briefed on the administration’s futuristic fantasies of domination, sat by quietly, offering another passive yes.
Congress also turned a blind eye to the setting up of a global network of “black sites” for the incarceration, abuse, and torture of “terror suspects,” listened to torture briefings, read about CIA rendition (i.e., kidnapping) operations, continued to fund Guantanamo, and did not challenge the devolving wars in Iraq or Afghanistan. Its members sat quietly by while a new weapon, armed drones, at the personal command of the president alone, crisscrossed the world assassinating people, including American citizens, within previously sovereign national boundaries. As a new president came into office and expanded the war in Afghanistan, ramped up the drone attacks, made war against Libya, did nothing to aid the Arab Spring, and allowed Guantanamo to fester, Congress said yes. Or, at least, not no, never no.
The World Today
Twelve years later, the dreams of global domination are in ruins and the world America changed for the worse is a very rough place. This country has remarkably few friends and only a handful of largely silent semi-allies. Even the once gung-ho president of France has been backing off his pledges of military cooperation in Syria in the face of growing popular opposition and is now calling for U.N. action. No longer does anyone cite the United States as a moral beacon in the world. If you want a measure of this, consider that Vladimir Putin seemed to win the Syria debate at the recent G20 summit as easily as he now has captured the moral high ground on Syria by calling for peace and a deal on Assad’s chemical weapons.
The most likely American a majority of global citizens will encounter is a soldier. Large swaths of the planet are now off-limits to American tourists and businesspeople, far too dangerous for all but the most foolhardy to venture into. The State Department even warns tourists to Western Europe that they might fall victim to al-Qaeda. In the coming years, few Americans will see the pyramids or the ruins of ancient Babylon in person, nor will they sunbathe, among other places, on the pristine beaches of the southern Philippines. Forget about large portions of Africa or most of the rest of the Middle East. Americans now fall victim to pirates on the high seas, as if it were the nineteenth century all over again.
After 12 disastrous years in the Greater Middle East, during which the missiles flew, the bombs dropped, doors were repeatedly kicked in, and IEDs went off, our lives, even at home, have changed. Terrorism, real and imagined, has turned our airports into giant human traffic jams and sites of humiliation, with lines that resemble a Stasi version of Disney World. Our freedoms, not to speak of the Fourth Amendment right to privacy, have been systematically stripped away in the name of American “safety,” “security,” and fear. Congress said yes to all of that, too, even naming the crucial initial piece of legislation that began the process the PATRIOT Act without the slightest sense of irony.
When I spoke with Special Forces personnel in Iraq, I was told that nearly every “bad guy” they killed or captured carried images of American torture and abuse from Abu Ghraib on his cellphone — as inspiration. As the victims of America’s violence grew, so did the armies of kin, those inheritors of “collateral damage,” seeking revenge. The acts of the past 12 years have even, in a few cases, inspired American citizens to commit acts of homegrown terrorism.
Until this week, Washington had abandoned the far-from-perfect-but-better-than-the-alternatives United Nations. Missiles and bombs have sufficed for our “credibility,” or so Washington continues to believe. While pursuing the most aggressive stance abroad in its history, intervening everywhere from Libya and Yemen to the Philippines, seeking out monsters to destroy and, when not enough could be found, creating them, the United States has become ever more isolated globally.
The horror show of the last 12 years wasn’t happenstance. Each instance of war was a choice by Washington, not thrust upon us by a series of Pearl Harbors. Our Congress always said yes (or least avoided ever saying no). Many who should have known better went on to join the yes men. In regard to Iran and George W. Bush, then-candidate for president Senator Joe Biden, for instance, said in 2007, “I was Chairman of the Judiciary Committee for 17 years. I teach separation of powers in constitutional law. This is something I know. So I brought a group of constitutional scholars together to write a piece that I’m going to deliver to the whole United States Senate pointing out that the president has no constitutional authority to take this country to war against a country of 70 million people unless we’re attacked or unless there is proof that we are about to be attacked. And if he does, I would move to impeach him. The House obviously has to do that, but I would lead an effort to impeach him.”
Only a year ago, Biden criticized Republican presidential candidate Mitt Romney for being too anxious to go to war with Syria. That country, Biden said, “is five times as large geographically [as Libya], it has one-fifth the population… It’s in a part of the world where they’re not going to see whatever would come from that war. It’ll seep into a regional war… If in fact it blows up and the wrong people gain control, it’s going to have impact on the entire region causing potentially regional wars.”
Biden has been missing from the public eye this week. His last public statement on Syria was in late August. Monday, while Susan Rice begged for war and Obama taped multiple TV interviews, the vice president was in Baltimore handing out federal grant money to improve the port. Silence in the face of a car wreck isn’t golden, it’s deadly. Good God, man, hit the brakes before we kill someone!
What If Congress Says Yes?
Some in Congress now are talking about a new resolution that would pre-authorize the administration to launch “fallback airstrikes” — that is, its desired attack on Syria — after some sort of deadline passed for U.N. action, Syrian action, or perhaps just another mythical red line was crossed. Should Congress say yes yet again to such a scheme or anything like it, nothing will change for the better, and much is likely to change for the worse.
An attack on Syria will demand a response; war works that way, no matter how “surgical” the strikes may be. Other countries, and even terrorists, also tend to imagine that, in such situations, their “credibility” is at stake. Fearing reprisals, the U.S. has already preemptively withdrawn its diplomats from a consulate in Turkey near the Syrian border, and from Lebanon. Security has increased in Iraq, with the already fortress-like U.S. embassy there bracing for attacks, allegedly already being planned by Iranian-sponsored sappers.
Be assured of one thing: bombs and missiles falling in Syria will cause “collateral damage,” newspeak for images splashed across the globe of Muslim women and children killed by American weaponry. History has ensured that borders in the Middle East are arbitrary and easily enough ignored. As the U.S. invasion and occupation of Iraq sparked a metastasizing regional Sunni-Shia civil war, so a new intervention in the latest version of that war will lead to further, possibly devastating, and certainly divisive consequences in Lebanon, Iraq, and elsewhere. Think of this as a grim domino theory for the new century.
Should a desperate Assad regime in Syria, or an Iranian proxy from Lebanon, retaliate against Israel, the U.S. could wake up to find itself in the middle of a far larger war. Who knows then what a Russia already moving naval forces into the Mediterranean and with a naval base in Syria itself might do, perhaps citing the need to maintain Putin’s “credibility”?
Even the most optimistic pundits do not believe a single set of strikes over a limited number of days will have much strategic effect. And what if, after giving up some or all of his chemical weapons, Assad just makes or buys more? The famous comment of General David Petraeus during the invasion of Iraq — “Tell me how this ends” — would need answering again. We didn’t like the answer the last time and we won’t like it this time.
Of course, something like half of the anti-Assad rebels fight for Islamic fundamentalist outfits. If, however unmeant, the U.S. essentially becomes the air force over Syria for al-Qaeda-branded and other jihadist outfits, unleashing them to take further territory, that would undoubtedly create even more unsettled and unsettling conditions across the region. A rebel victory, aided by U.S. strikes, would certainly give al-Qaeda the sort of sovereign sanctuary the U.S. has been fighting to eliminate globally since the Clinton administration. No serious scenario has been offered in which the civil war in Syria would begin to abate thanks to U.S. bombs and missiles.
With or without an attack, some things will remain constant. Israel destroyed Syria’s nascent attempts to build nuclear weapons and would do so again if needed. Iran has played a clever game in the regional proxy wars in Lebanon, Syria, and elsewhere — they won in Iraq — and will continue to do so. Since the 1970s, Syria has had stocks of chemical weapons that the Assad regime manufactured itself and has never used them against the United States or any other country, nor have they in 40 years transferred those weapons to any terrorists. There is no reason to believe that will change now, not even as a way to strike back should the U.S. attack first (though the fate of those weapons, should Assad fall under U.S. attacks, no one can possibly know.)
With a U.S. president willing, for the first time in decades, to hand over some part of his decision-making powers to Congress (though he dubiously maintains that it would still be constitutional for him to launch strikes against Syria on his own), the Senate and House of Representatives have a chance to courageously re-insert themselves in war policy. Alternatively, they can once again assure themselves of a comfortable irrelevance. On one thing Obama is certainly right: the world is indeed watching the unfolding spectacle.
What If Congress Says No?
If Congress says no to an attack on Syria, the U.S. may for the first time in 12 years have the chance to change the world for the better. Though this is not an overly dramatic statement, it’s also true, as every diplomat knows, that it’s easier to break things than fix them.
The world would at least have seen Washington step back after its citizenry told their government that enough is enough. The world would see an America which, in a modest but significant way, was beginning to genuinely absorb the real lessons to be drawn from our post-9/11 actions: that endless war only fuels more war, that living in a world where foreigners are seen mainly as targets brings no peace, that lashing out everywhere means no safety anywhere.
In the wake of a non-attack on Syria, parts of the world might be more open to the possibility that the United States could help open new paths, beginning with a tacit acknowledgement that we were wrong. Nothing can erase the deeds of the past years or those long memories common not just in the Middle East, but to humanity more generally. Certainly, what we did is likely to haunt us for generations. But when in a deep hole, the first step is to stop digging. Via Congress, the U.S. can take a small first step toward becoming an “indispensable nation” in more than our own minds.
If Congress says no on Syria, it will, just as the president warns, also be sending a message to Iran — not, however, that the United States lacks the resolve to fight. It seems unlikely, given the past 12 years, that anyone doubts this country’s willingness to use force. A clear no from Congress would, in fact, send a message of hope to Iran.
It was only in June that Obama claimed Iran’s election of a moderate as president showed that Iranians want to move in a different direction. “As long as there’s an understanding about the basis of the conversation, then I think there’s no reason why we shouldn’t proceed,” Obama said. “The Iranian people rebuffed the hardliners and the clerics in the election who were counseling no compromise on anything anytime anywhere. Clearly you have a hunger within Iran to engage with the international community in a more positive way.”
Diplomacy is often a series of little gateway-like tests that, when passed, lead two parties forward. A no on Syria would be such a step, allowing Iran and the United States a possible path toward negotiations that could someday change the face of the Middle East. Only three months ago, Obama himself endorsed such a plan. If Congress says no, it won’t destroy credibility with the Iranians; it’s likely, in fact, to enhance it. This decision by Congress could empower both parties to proceed to the negotiating table in a more hopeful way. A yes from Congress, on the other hand, could sideline Iranian moderates and slam the door shut on discussions for a long time.
It is clear that partisan politics will play a significant role in Congress’s decision. That body is fundamentally a political animal, and the House, of course, faces midterm elections in little more than a year. Still, that’s not a terrible thing. After all, for the first time in a long while, when it comes to foreign policy, House members are openly speaking about the influence that a wave of constituent opposition to a Syrian intervention is having on them. They appear to be hearing us speak, even if the impulse isn’t just to do the right thing, but to garner votes in 2014.
Should Congress say no, it seems unlikely that a president, isolated at home and abroad, will go to war. Some of Obama’s top aides have already been signaling that reality. Despite macho talk in the upper echelons of his administration on his right to ignore Congress, as a constitutional scholar and a savvy politician he would be unlikely to risk the demands for his impeachment and the spectacle of a Constitutional crisis by launching Syrian strikes in the wake of a no vote. All the noise about not backing down and his credibility suffering a catastrophic blow should be taken as so much pre-vote political saber rattling. The president may make foolish decisions, but he certainly is no fool.
By saying no, not again, not this time, the current group of gray men and women who largely make up our Congress have the chance to join some of the giants who have thundered in those chambers in the past. At this moment, that body has the opportunity to choose a new meaning for future anniversaries of 9/11. It could be the day that life went on just as disastrously as previously — or it could be the day that changed everything, and this time for the better.
Peter Van Buren blew the whistle on State Department waste and mismanagement during Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A TomDispatch regular, he writes about current events at his blog, We Meant Well. Van Buren’s next book, Ghosts of Tom Joad: A Story of the #99Percent, will be available March 2014.
Copyright 2013 Peter Van Buren
Giving New Meaning to the Day After 9/11
As a State Department whistleblower, I think a lot about Edward Snowden. I can’t help myself. My friendships with other whistleblowers like Tom Drake, Jesslyn Radack, Daniel Ellsberg, and John Kiriakou lead me to believe that, however different we may be as individuals, our acts have given us much in common. I suspect that includes Snowden, though I’ve never had the slightest contact with him. Still, as he took his long flight from Hong Kong into the unknown, I couldn’t help feeling that he was thinking some of my thoughts, or I his. Here are five things that I imagine were on his mind (they would have been on mine) as that plane took off.
I Am Afraid
Whistleblowers act on conscience because they encounter something so horrifying, unconstitutional, wasteful, fraudulent, or mismanaged that they are overcome by the need to speak out. There is always a calculus of pain and gain (for others, if not oneself), but first thoughts are about what you’ve uncovered, the information you feel compelled to bring into the light, rather than your own circumstances.
In my case, I was ignorant of what would happen once I blew the whistle. I didn’t expect the Department of State to attack me. National Security Agency (NSA) whistleblower Tom Drake was similarly unprepared. He initially believed that, when the FBI first came to interview him, they were on his side, eager to learn more about the criminal acts he had uncovered at the NSA. Snowden was different in this. He had the example of Bradley Manning and others to learn from. He clearly never doubted that the full weight of the U.S. government would fall on him.
He knew what to fear. He knew the Obama administration was determined to make any whistleblower pay, likely via yet another prosecution under the Espionage Act (with the potential for the death penalty). He also knew what his government had done since 9/11 without compunction: it had tortured and abused people to crush them; it had forced those it considered enemies into years of indefinite imprisonment, creating isolation cells for suspected terrorists and even a pre-trial whistleblower. It had murdered Americans without due process, and then, of course, there were the extraordinary renditions in which U.S. agents kidnapped perceived enemies and delivered them into the archipelago of post-9/11 horrors.
Sooner or later, if you’re a whistleblower, you get scared. It’s only human. On that flight, I imagine that Edward Snowden, for all his youthful confidence and bravado, was afraid. Would the Russians turn him over to Washington as part of some secret deal, maybe the sort of spy-for-spy trade that would harken back to the Cold War era?
Even if he made it out of Moscow, he couldn’t have doubted that the full resources of the NSA and other parts of the U.S. government would be turned on him. How many CIA case officers and Joint Special Operations Command types did the U.S. have undercover in Ecuador? After all, the dirty tricks had already started. The partner of Guardian journalist Glenn Greenwald, who broke Snowden’s story, had his laptop stolen from their residence in Brazil. This happened only after Greenwald told him via Skype that he would send him an encrypted copy of Snowden’s documents.
In such moments, you try to push back the sense of paranoia that creeps into your mind when you realize that you are being monitored, followed, watched. It’s uncomfortable, scary. You have to wonder what your fate will be once the media grows bored with your story, or when whatever government has given you asylum changes its stance vis-a-vis the U.S. When the knock comes at the door, who will protect you? So who can doubt that fear made the journey with him?
Could I Go Back to the U.S.?
Amnesty International was on target when it stated that Snowden “could be at risk of ill-treatment if extradited to the U.S.” As if to prove them right, months, if not years, before any trial, Speaker of the House John Boehner called Snowden a “traitor”; Congressman Peter King called him a “defector”; and others were already demanding his execution. If that wasn’t enough, the abuse Bradley Manning suffered had already convinced Snowden that a fair trial and humane treatment were impossible dreams for a whistleblower of his sort. (He specifically cited Manning in his appeal for asylum to Ecuador.)
So on that flight he knew — as he had long known — that the natural desire to go back to the U.S. and make a stand was beyond foolhardy. Yet the urge to return to the country he loves must have been traveling with him, too. Perhaps on that flight he found himself grimly amused that, after years of running roughshod over international standards — Abu Ghraib, Guantanamo, “enhanced interrogation techniques,” “black sites” — the U.S. had the nerve to chide Hong Kong, China, and Russia for not following the rule of law. He certainly knew that his own revelations about massive NSA cyber-spying on Hong Kong and China had deeply embarrassed the Obama administration. It had, after all, been blistering the Chinese for hacking into U.S. military and corporate computers. He himself had ensured that the Chinese wouldn’t turn him over, in the same way that history — decades of U.S. bullying in Latin America — ensured that he had a shot at a future in someplace like in Ecuador.
If he knew his extradition history, Snowden might also have thought about another time when Washington squirmed as a man it wanted left a friendly country for asylum. In 2004, the U.S. had chess great Bobby Fischer detained in Japan on charges that he had attended a 1992 match in Yugoslavia in violation of a U.S. trade ban. Others suggested that the real reason Washington was after him may have been Fischer’s post 9/11 statement: “It’s time to finish off the U.S. once and for all. This just shows what comes around, goes around.”
Fischer’s American passport was revoked just like Snowden’s. In the fashion of Hong Kong more recently, the Japanese released Fischer on an immigration technicality, and he flew to Iceland where he was granted citizenship. I was a diplomat in Japan at the time, and had a ringside seat for the negotiations. They must have paralleled what went on in Hong Kong: the appeals to treaty and international law; U.S. diplomats sounding like so many disappointed parents scolding a child; the pale hopes expressed for future good relations; the search for a sympathetic ear among local law enforcement agencies, immigration, and the foreign ministry — anybody, in fact — and finally, the desperate attempt to call in personal favors to buy more time for whatever Plan B might be. As with Snowden, in the end the U.S. stood by helplessly as its prey flew off.
How Will I Live Now?
At some point every whistleblower realizes his life will never be the same. For me, that meant losing my job of 24 years at the State Department. For Tom Drake, it meant financial ruin as the government tried to bankrupt him through endless litigation. For CIA agent John Kiriakou, it might have been the moment when, convicted of disclosing classified information to journalists, he said goodbye to his family and walked into Loretto Federal Correctional Institution.
Snowden could not have avoided anxiety about the future. Wherever he ended up, how would he live? What work would he do? He’s just turned 30 and faces, at best, a lifetime in some foreign country he’s never seen where he might not know the language or much of anything else.
So fear again, in a slightly different form. It never leaves you, not when you take on the world’s most powerful government. Would he ever see his family and friends again? Would they disown him, fearful of retaliation or affected by the smear campaign against him? Would his parents/best friend/girlfriend come to believe he was a traitor, a defector, a dangerous man? All whistleblowers find their personal relationships strained. Marriages are tested or broken, friends lost, children teased or bullied at school. I know from my own whistleblower’s journey that it’s an ugly penalty — encouraged by a government scorned — for acting on conscience.
If he had a deeper sense of history, Snowden might have found humor in the way the Obama administration chose to revoke his passport just before he left Hong Kong. After all, in the Cold War years, it was the “evil empire,” the Soviet Union, which was notorious for refusing to grant dissidents passports, while the U.S. regularly waived such requirements when they escaped to the West.
To deepen the irony of the moment, perhaps he was able to Google up the 2009-2011 figures on U.S. grants of asylum: 1,222 Russians, 9,493 Chinese, and 22 Ecuadorians, not including family members. Maybe he learned that, despite the tantrums U.S. officials threw regarding the international obligation of Russia to extradite him, the U.S. has recently refused Russian requests to extradite two of its citizens.
Snowden might have mused over then-candidate Obama’s explicit pledge to protect whistleblowers. “Often the best source of information about waste, fraud, and abuse in government,” Obama then said, “is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism… should be encouraged rather than stifled as they have been during the Bush administration.” It might have been Snowden’s only laugh of the flight.
I Don’t Hate the U.S., I Love It Deeply, But Believe It Has Strayed
On that flight, Snowden took his love of America with him. It’s what all of us whistleblowers share: a love of country, if not necessarily its government, its military, or its intelligence services. We care what happens to us the people. That may have been his anchor on his unsettling journey. It would have been mine.
Remember, if we were working in the government in the first place, like every federal employee, soldier, and many government contractors, we had taken an oath that stated: “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” We didn’t pledge fealty to the government or a president or party, only — as the Constitution makes clear — to the ultimate source of legitimacy in our nation, “the people.”
In an interview, Snowden indicated that he held off on making his disclosures for some time, in hopes that Barack Obama might look into the abyss and decide to become the bravest president in our history by reversing the country’s course. Only when Obama’s courage or intelligence failed was it time to become a whistleblower.
Some pundits claim that Snowden deserves nothing, because he didn’t go through “proper channels.” They couldn’t be more wrong and Snowden knows it. As with many of us whistleblowers facing a government acting in opposition to the Constitution, Snowden went through the channels that matter most: he used a free press to speak directly to his real boss, the American people.
In that sense, whatever the fear and anxiety about his life and his future, he must have felt easy with his actions. He had not betrayed his country, he had sought to inform it.
As with Bradley Manning, Obama administration officials are now claiming that Snowden has blood on his hands. Typically, Secretary of State John Kerry claimed: “People may die as a consequence to what this man did. It is possible that the United States would be attacked because terrorists may now know how to protect themselves in some way or another that they didn’t know before.” Snowden had heard the same slurs circling around Bradley Manning: that he had put people in danger. After the wars in Iraq and Afghanistan, not to speak of the war on terror, there is irony too obvious to dwell upon in such charges.
Flying into the unknown, Snowden had to feel secure in having risked everything to show Americans how their government and the NSA bend or break laws to collect information on us in direct conflict with the Fourth Amendment’s protections. Amnesty International pointed out that blood-on-hands wasn’t at issue. “It appears he is being charged primarily for revealing U.S. and other governments’ unlawful actions that violate human rights.” Those whispers of support are something to take into the dark with you.
I Believe in Things Bigger Than Myself
Some of the charges against Snowden would make anyone pause: that, for instance, he did what he did for the thrill of publicity, out of narcissism, or for his own selfish reasons. To any of the members of the post-9/11 club of whistleblowers, the idea that we acted primarily for our own benefit has a theater of the absurd quality to it. Having been there, the negative sentiments expressed do not read or ring true.
Snowden himself laughed off the notion that he had acted for his own benefit. If he had wanted money, any number of foreign governments would have paid handsomely for the information he handed out to journalists for free and he would never have had to embark on that plane flight from Hong Kong. (No one ever called Aldrich Ames a whistleblower.) If he wanted fame, there were potential book contracts and film deals to be had.
No, it was conscience. I wouldn’t be surprised if somewhere along the line Snowden had read the Declaration of the Nuremberg War Crimes Tribunal: “Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.”
Edward Snowden undoubtedly took comfort knowing that a growing group of Americans are outraged enough to resist a government turning against its own people. His thoughts were mirrored by Julian Assange, who said, “In the Obama administration’s attempt to crush these young whistleblowers with espionage charges, the U.S. government is taking on a generation, a young generation of people who find the mass violation of the rights of privacy and open process unacceptable. In taking on the generation, the Obama administration can only lose.” Snowden surely hoped President Obama would ask himself why he has pursued more than double the number of Espionage Act cases of all his presidential predecessors combined, and why almost all of those prosecutions failed.
On that flight, Edward Snowden must have reflected on what he had lost, including the high salary, the sweet life in Hawaii and Switzerland, the personal relationships, and the excitement of being on the inside, as well as the coolness of knowing tomorrow’s news today. He has already lost much that matters in an individual life, but not everything that matters. Sometimes — and any whistleblower comes to know this in a deep way — you have to believe that something other, more, deeper, better than yourself matters. You have to believe that one courageous act of conscience might make a difference in an America gone astray or simply that, matter or not, you did the right thing for your country.
Peter Van Buren blew the whistle on State Department waste and mismanagement in his book We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A TomDispatch regular, he writes about current events at his blog, We Meant Well. Van Buren’s next book, Ghosts of Tom Joad, A Story of the #99Percent, is due out in March 2014.
Copyright 2013 Peter Van Buren
Edward Snowden’s Long Flight
What do words mean in a post-9/11 world? Apart from the now clichéd Orwellian twists that turn brutal torture into mere enhanced interrogation, the devil is in the details. Robert MacLean is a former air marshal fired for an act of whistleblowing. He has continued to fight over seven long years for what once would have passed as simple justice: getting his job back. His is an all-too-twenty-first-century story of the extraordinary lengths to which the U.S. government is willing to go to thwart whistleblowers.
First, the government retroactively classified a previously unclassified text message to justify firing MacLean. Then it invoked arcane civil service procedures, including an “interlocutory appeal” to thwart him and, in the process, enjoyed the approval of various courts and bureaucratic boards apparently willing to stamp as “legal” anything the government could make up in its own interest.
And yet here’s the miracle at the heart of this tale: MacLean refused to quit, when ordinary mortals would have thrown in the towel. Now, with a recent semi-victory, he may not only have given himself a shot at getting his old job back, but also create a precedent for future federal whistleblowers. In the post-9/11 world, people like Robert MacLean show us how deep the Washington rabbit hole really goes.
The Whistle Is Blown
MacLean joined the Federal Air Marshal Service (FAMS) in 2001 after stints with the Air Force and the Border Patrol. In July 2003, all marshals received a briefing about a possible hijacking plot. Soon after, the Transportation Safety Administration (TSA), which oversees FAMS, sent an unencrypted, open-air text message to the cell phones of the marshals cancelling several months of missions for cost-cutting reasons. MacLean became concerned that cancelling missions during a hijacking alert might create a dangerous situation for the flying public. He complained to his supervisor and to the Department of Homeland Security’s inspector general, but each responded that nothing could be done.
It was then that he decided to blow the whistle, hoping that public pressure might force the TSA to reinstate the marshals’ flights. So MacLean talked to a reporter, who broadcast a story criticizing the TSA’s decision and, after 11 members of Congress joined in the criticism, it reversed itself. At this point, MacLean had not been identified as the source of the leak and so carried on with his job.
A year later, he appeared on TV in disguise, criticizing the TSA dress code and its special boarding policies, which he believed allowed marshals to be easily identified by other passengers. This time, the TSA recognized his voice and began an investigation that revealed he had also released the 2003 text message. He was fired in April 2006. Although the agency had not labeled that message as “sensitive security information” (SSI) when it was sent in 2003, in August 2006, months after MacLean’s firing, it issued a retroactive order stating that the text’s content was indeed SSI.
A Whistleblower’s Catch-22
That disclosing the contents of an unclassified message could get someone fired for disclosing classified information is the sort of topsy-turvy situation which could only exist in the post-9/11 world of the American national security state.
Under the 1989 Whistleblower Protection Act (WPA), a disclosure prohibited by law negates whistleblower protections. That, of course, makes it in the government’s interest to define disclosure as broadly as possible and to classify as much of its internal communications for as long as it possibly can. No wonder that in recent years the classification of government documents has soared, reaching a record total of 92,064,862 in 2011.
Officially, the U.S. government recognizes only three basic levels of classification: confidential, secret, and top secret. Since 9/11, however, various government agencies have created multiple freestyle categories of secrecy like “SSI,” “Law Enforcement Sensitive,” “Sensitive But Unclassified,” and the more colorful “Eyes Only.” All of these are outside the normal codification system; all are hybrids that casually seek to incorporate the full weight of the formal law. There are currently 107 designations just for “sensitive” information. In addition to those labels, there exist more than 130 sets of extra “handling requirements” that only deepen the world of government secrecy.
At issue for MacLean was not only the retroactive classification of a text message already in the public domain, but what classified could possibly mean in an era when everything related to the national security state was slipping into the shadows. Such questions are hardly semantic or academic. MacLean’s case hinges on how they are answered.
The case against Army Private Bradley Manning and WikiLeaks is, for example, intimately tied up in them. The military hides behind classification to block access to Manning’s “public” trial. With WikiLeaks, despite more than 100,000 U.S. State Department diplomatic cables being available to anyone anywhere on the web, the government continues to insist that they remain “classified” and cannot even be rereleased in response to requests. Potential federal employees were warned to stay away from the cables online, and the State Department even blocked TomDispatch from its staff to shield them from alleged WikiLeaks content (some of which was linked to and discussed, but none of which was actually posted at the site).
With author Tony Shaffer, the government retroactively classified its own account of why he was given the Bronze Star and his standard deployment orders to Afghanistan after he published an uncomplimentary book about American actions there. The messy case of alleged “hacktivist” Barrett Brown includes prosecution for “disclosing” classified material simply by linking to it at places where it had already been posted online; and, while still at the State Department, I was once accused of the same thing by the government.
In MacLean’s case, over a period of seven years, the legality of the TSA firing him for using an only-later-classified text was upheld. Legal actions included hearings before administrative judges, the Merit Systems Protections Board twice, that interlocutory appeal, and the U.S. Court of Appeals for the Ninth Circuit. The sum of these decisions amid a labyrinth of judicial bureaucracies demands the use of the term Kafkaesque. MacLean, so the general judgment went, should have known that the text message he planned to leak was a classified document, even when it wasn’t (yet). As a result, he should also have understood that his act would not be that of a whistleblower alerting the public to possible danger, but of a criminal risking public safety by exposing government secrets. If that isn’t the definition of a whistleblower’s catch-22, what is?
What such a twisted interpretation by the various courts, boards, and bodies meant was chillingly laid out in an amicus brief on behalf of MacLean filed by the United States Office of Special Counsel (a small, lonely U.S. government entity charged with protecting whistleblowers):
“Whistleblowers should not have to guess whether information that they reasonably believe evidences waste, fraud, abuse, illegalities or public dangers might be later designated as SSI [unclassified sensitive security information] and therefore should not be disclosed. Rather than making the wrong guess, a would-be whistleblower will likely choose to remain silent to avoid risking the individual’s employment.”
Seven Years Later…
In 2011, five years after he had been fired as an air marshal, MacLean’s case finally reached the United States Court of Appeals for the Federal Circuit. Two full years after that, in April 2013, the court handed down a decision that may yet provide justice for Robert MacLean — and for future whistleblowers. While awkwardly upholding previous decisions that the government can indeed retroactively classify information, even documents in categories like SSI that exist outside the government’s official framework for classification and secrecy, the court tackled a more basic question: Was Robert MacLean a whistleblower anyway, entitled to protection for his act of conscience?
Here lies the conflict at the heart of just about every whistleblower case — between the public’s right (and need) to know and the (at times legitimate) need for secrecy. The government typically argues that individuals should not be allowed to decide for themselves what remains secret and what doesn’t, or chaos would result. At the same time, in a post-9/11 world of increasing secrecy, the loss of the right to know, and the massive over-classification of documents, the “conflict” has become ever more one-sided. If everything can be considered a classified secret document too precious for Americans to know about, and nothing classified can be disclosed, then the summary effect is that nothing inside the government can ever be shown to the public.
The court found that while the Transportation Safety Administration could legally apply any classification it wanted to information any time it wanted, even retroactively, simply slapping on such a label did not necessarily prohibit disclosure. Absent an actual law in MacLean’s case mentioning SSI, a term created bureaucratically, not congressionally, there could be no Whistleblower Protection Act-excepting prohibition. In other words, MacLean could still be a whistleblower.
One of MacLean’s lawyers, Tom Devine, told me the decision “restored enforceability for the Whistleblower Protection Act’s public free speech rights. It ruled that only Congress has the authority to remove whistleblower rights. Agency-imposed restraints are not relevant for WPA rights.”
“With this precedential decision,” MacLean explained to me, “agencies can no longer cancel out Whistleblower Protection Act rights with their semi-secret markings like SSI, Law Enforcement Sensitive, etcetera.”
In a concurring opinion, United States Court of Appeals for the Federal Circuit Judge Evan Wallach was even clearer: “Mr. MacLean presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public… I concur to emphasize that the facts alleged, if proven, allege conduct at the core of the Whistleblower Protection Act.”
MacLean’s case now returns to the Merit Systems Protection Board. The board is a complex piece of bureaucracy inside the already complicated federal government personnel system. In simple terms, it is supposed to be a place to appeal personnel actions, such as alleged unfair hirings and firings. It thus serves as a kind of watchdog over the sprawling federal human resources empire. The Board now has the court-ordered specific charge to “determine whether Mr. MacLean’s disclosure qualifies for WPA protection.”
Note as well that this case could continue without end for years more, traveling on “appeal” back through the federal judicial bureaucracy and the courts. And remember that this, too, is an advantage to a government that wants ever less known about itself. If, as a federal employee, you are watching a case like MacLean’s (or Thomas Drake’s, or Franz Gayle’s, or Morris Davis’s, or John Kiriakou’s, or even my own small version of this), then you can’t help noticing that the act of whistleblowing could leave you: a) out on your ear; b) prosecuted for a criminal act and/or c) with your life embroiled for years in the intricacies of your own never-ending case. None of this is exactly an encouragement to federal employees to blow that whistle.
Whistleblowers and Secrecy
Threats to whistleblowers abound, so any positive step, however minimalist or reversible, is important. Entering the White House pledging to head the most transparent administration in history, Barack Obama has, in fact, gone after more national security whistleblowers, often using the draconian Espionage Act, than all previous administrations combined.
His Justice Department has repeatedly tried to prosecute whistleblowers, crudely lumping them in with actual spies and claiming they endanger Americans (and sometimes “the troops”) by their actions. In addition, through the ongoing case of Berry v. Conyers, Obama has sought to expand the definition of “national security worker” to potentially include thousands of additional federal employees. Many employees who occupy truly sensitive jobs in the intelligence community (for example, real-world spies at the CIA) are exempt from being granted whistleblower status. They also cannot appeal to the Merit Systems Protection Board if fired. By seeking to expand that exemption to a significantly larger group of people who may work at some federal agency, but in non-sensitive positions, Obama is also functionally moving to shrink the pool of potential whistleblowers. In Berry v. Conyers, for example, the persons Obama seeks to exempt as occupying sensitive jobs are merely an accounting technician and a commissary worker at an Air Force base. Neither of them even hold security clearances.
What happens with MacLean’s case potentially affects every future whistleblower. If the mere presence of a pseudo-classification on an item, even applied retroactively, negates whistleblower protections, it means dark days ahead for the right of the citizenry to know what the government is doing (or how it’s misbehaving) in its name. If so, no act of whistleblowing could be considered protected, since all the government would have to do to unprotect it is classify whatever was disclosed retroactively and wash its hands of the miscreant. Federal employees, not a risk-taking bunch to begin with, will react accordingly.
This is what gives MacLean’s case special meaning. While the initial decision on his fate will occur in the bowels of the somewhat obscure Merit Systems Protections Board, it will set a precedent that will surely find its way into higher courts on more significant cases. Amid a lot of technical legal issues, it all boils down to something very simple: Should whistleblower protections favor the conscience of a concerned federal employee willing to risk his job and the freedom to inform the public, or should they dissolve in the face of an unseen bureaucrat’s (retroactive) pseudo-classification decision?
Procedurally, there are many options ahead for MacLean’s case, and the government will undoubtedly contest each tiny step. Whatever happens will happen slowly. This is exactly how the government has continually done its dirty work post-9/11, throwing monkey wrenches in the gears of the legal system, twisting words, and manipulating organizations designed to deliver justice in order to deny it.
MacLean smiles at this. “I did seven years so far. I can do seven more if they want. There’s too much at stake to just give up.”
Peter Van Buren is a retired 24-year veteran of the State Department. A TomDispatch regular, he writes about Iraq, the Middle East, and U.S. diplomacy at his blog, We Meant Well. The author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, he is currently working on a new book, The People on the Bus: A Story of the #99Percent.
Copyright 2013 Peter Van Buren
I was there. And “there” was nowhere. And nowhere was the place to be if you wanted to see the signs of end times for the American Empire up close. It was the place to be if you wanted to see the madness — and oh yes, it was madness — not filtered through a complacent and sleepy media that made Washington’s war policy seem, if not sensible, at least sane and serious enough. I stood at Ground Zero of what was intended to be the new centerpiece for a Pax Americana in the Greater Middle East.
Not to put too fine a point on it, but the invasion of Iraq turned out to be a joke. Not for the Iraqis, of course, and not for American soldiers, and not the ha-ha sort of joke either. And here’s the saddest truth of all: on March 20th as we mark the 10th anniversary of the invasion from hell, we still don’t get it. In case you want to jump to the punch line, though, it’s this: by invading Iraq, the U.S. did more to destabilize the Middle East than we could possibly have imagined at the time. And we — and so many others — will pay the price for it for a long, long time.
The Madness of King George
It’s easy to forget just how normal the madness looked back then. By 2009, when I arrived in Iraq, we were already at the last-gasp moment when it came to salvaging something from what may yet be seen as the single worst foreign policy decision in American history. It was then that, as a State Department officer assigned to lead two provincial reconstruction teams in eastern Iraq, I first walked into the chicken processing plant in the middle of nowhere.
By then, the U.S. “reconstruction” plan for that country was drowning in rivers of money foolishly spent. As the centerpiece for those American efforts — at least after Plan A, that our invading troops would be greeted with flowers and sweets as liberators, crashed and burned — we had managed to reconstruct nothing of significance. First conceived as a Marshall Plan for the New American Century, six long years later it had devolved into farce.
In my act of the play, the U.S. spent some $2.2 million dollars to build a huge facility in the boondocks. Ignoring the stark reality that Iraqis had raised and sold chickens locally for some 2,000 years, the U.S. decided to finance the construction of a central processing facility, have the Iraqis running the plant purchase local chickens, pluck them and slice them up with complex machinery brought in from Chicago, package the breasts and wings in plastic wrap, and then truck it all to local grocery stores. Perhaps it was the desert heat, but this made sense at the time, and the plan was supported by the Army, the State Department, and the White House.
Elegant in conception, at least to us, it failed to account for a few simple things, like a lack of regular electricity, or logistics systems to bring the chickens to and from the plant, or working capital, or… um… grocery stores. As a result, the gleaming $2.2 million plant processed no chickens. To use a few of the catchwords of that moment, it transformed nothing, empowered no one, stabilized and economically uplifted not a single Iraqi. It just sat there empty, dark, and unused in the middle of the desert. Like the chickens, we were plucked.
In keeping with the madness of the times, however, the simple fact that the plant failed to meet any of its real-world goals did not mean the project wasn’t a success. In fact, the factory was a hit with the U.S. media. After all, for every propaganda-driven visit to the plant, my group stocked the place with hastily purchased chickens, geared up the machinery, and put on a dog-and-pony, er, chicken-and-rooster, show.
In the dark humor of that moment, we christened the place the Potemkin Chicken Factory. In between media and VIP visits, it sat in the dark, only to rise with the rooster’s cry each morning some camera crew came out for a visit. Our factory was thus considered a great success. Robert Ford, then at the Baghdad Embassy and now America’s rugged shadow ambassador to Syria, said his visit was the best day out he enjoyed in Iraq. General Ray Odierno, then commanding all U.S. forces in Iraq, sent bloggers and camp followers to view the victory project. Some of the propaganda, which proclaimed that “teaching Iraqis methods to flourish on their own gives them the ability to provide their own stability without needing to rely on Americans,” is still online (including this charming image of American-Iraqi mentorship, a particular favorite of mine).
We weren’t stupid, mind you. In fact, we all felt smart and clever enough to learn to look the other way. The chicken plant was a funny story at first, a kind of insider’s joke you all think you know the punch line to. Hey, we wasted some money, but $2.2 million was a small amount in a war whose costs will someday be toted up in the trillions. Really, at the end of the day, what was the harm?
The harm was this: we wanted to leave Iraq (and Afghanistan) stable to advance American goals. We did so by spending our time and money on obviously pointless things, while most Iraqis lacked access to clean water, regular electricity, and medical or hospital care. Another State Department official in Iraq wrote in his weekly summary to me, “At our project ribbon-cuttings we are typically greeted now with a cursory ‘thank you,’ followed by a long list of crushing needs for essential services such as water and power.” How could we help stabilize Iraq when we acted like buffoons? As one Iraqi told me, “It is like I am standing naked in a room with a big hat on my head. Everyone comes in and helps put flowers and ribbons on my hat, but no one seems to notice that I am naked.”
By 2009, of course, it should all have been so obvious. We were no longer inside the neocon dream of unrivaled global superpowerdom, just mired in what happened to it. We were a chicken factory in the desert that no one wanted.
Time Travel to 2003
Anniversaries are times for reflection, in part because it’s often only with hindsight that we recognize the most significant moments in our lives. On the other hand, on anniversaries it’s often hard to remember what it was really like back when it all began. Amid the chaos of the Middle East today, it’s easy, for instance, to forget what things looked like as 2003 began. Afghanistan, it appeared, had been invaded and occupied quickly and cleanly, in a way the Soviets (the British, the ancient Greeks…) could never have dreamed of. Iran was frightened, seeing the mighty American military on its eastern border and soon to be on the western one as well, and was ready to deal. Syria was controlled by the stable thuggery of Bashar al-Assad and relations were so good that the U.S. was rendering terror suspects to his secret prisons for torture.
Most of the rest of the Middle East was tucked in for a long sleep with dictators reliable enough to maintain stability. Libya was an exception, though predictions were that before too long Muammar Qaddafi would make some sort of deal. (He did.) All that was needed was a quick slash into Iraq to establish a permanent American military presence in the heart of Mesopotamia. Our future garrisons there could obviously oversee things, providing the necessary muscle to swat down any future destabilizing elements. It all made so much sense to the neocon visionaries of the early Bush years. The only thing that Washington couldn’t imagine was this: that the primary destabilizing element would be us.
Indeed, its mighty plan was disintegrating even as it was being dreamed up. In their lust for everything on no terms but their own, the Bush team missed a diplomatic opportunity with Iran that might have rendered today’s saber rattling unnecessary, even as Afghanistan fell apart and Iraq imploded. As part of the breakdown, desperate men, blindsided by history, turned up the volume on desperate measures: torture, secret gulags, rendition, drone killings, extra-constitutional actions at home. The sleaziest of deals were cut to try to salvage something, including ignoring the A.Q. Khan network of Pakistani nuclear proliferation in return for a cheesy Condi Rice-Qaddafi photo-op rapprochement in Libya.
Inside Iraq, the forces of Sunni-Shia sectarian conflict had been unleashed by the U.S. invasion. That, in turn, was creating the conditions for a proxy war between the U.S. and Iran, similar to the growing proxy war between Israel and Iran inside Lebanon (where another destabilizing event, the U.S.-sanctioned Israeli invasion of 2006, followed in hand). None of this has ever ended. Today, in fact, that proxy war has simply found a fresh host, Syria, with multiple powers using “humanitarian aid” to push and shove their Sunni and Shia avatars around.
Staggering neocon expectations, Iran emerged from the U.S. decade in Iraq economically more powerful, with sanctions-busting trade between the two neighbors now valued at some $5 billion a year and still growing. In that decade, the U.S. also managed to remove one of Iran’s strategic counterbalances, Saddam Hussein, replacing him with a government run by Nouri al-Malaki, who had once found asylum in Tehran.
Meanwhile, Turkey is now engaged in an open war with the Kurds of northern Iraq. Turkey is, of course, part of NATO, so imagine the U.S. government sitting by silently while Germany bombed Poland. To complete the circle, Iraq’s prime minister recently warned that a victory for Syria’s rebels will spark sectarian wars in his own country and will create a new haven for al-Qaeda which would further destabilize the region.
Meanwhile, militarily burnt out, economically reeling from the wars in Iraq and Afghanistan, and lacking any moral standing in the Middle East post-Guantanamo and Abu Ghraib, the U.S. sat on its hands as the regional spark that came to be called the Arab Spring flickered out, to be replaced by yet more destabilization across the region. And even that hasn’t stopped Washington from pursuing the latest version of the (now-nameless) global war on terror into ever-newer regions in need of destabilization.
Having noted the ease with which a numbed American public patriotically looked the other way while our wars followed their particular paths to hell, our leaders no longer blink at the thought of sending American drones and special operations forces ever farther afield, most notably ever deeper into Africa, creating from the ashes of Iraq a frontier version of the state of perpetual war George Orwell once imagined for his dystopian novel 1984. And don’t doubt for a second that there is a direct path from the invasion of 2003 and that chicken plant to the dangerous and chaotic place that today passes for our American world.
On this 10th anniversary of the Iraq War, Iraq itself remains, by any measure, a dangerous and unstable place. Even the usually sunny Department of State advises American travelers to Iraq that U.S. citizens “remain at risk for kidnapping… [as] numerous insurgent groups, including Al Qaida, remain active…” and notes that “State Department guidance to U.S. businesses in Iraq advises the use of Protective Security Details.”
In the bigger picture, the world is also a far more dangerous place than it was in 2003. Indeed, for the State Department, which sent me to Iraq to witness the follies of empire, the world has become ever more daunting. In 2003, at that infamous “mission accomplished” moment, only Afghanistan was on the list of overseas embassies that were considered “extreme danger posts.” Soon enough, however, Iraq and Pakistan were added. Today, Yemen and Libya, once boring but secure outposts for State’s officials, now fall into the same category.
Other places once considered safe for diplomats and their families such as Syria and Mali have been evacuated and have no American diplomatic presence at all. Even sleepy Tunisia, once calm enough that the State Department had its Arabic language school there, is now on reduced staff with no diplomatic family members resident. Egypt teeters.
The Iranian leadership watched carefully as the American imperial version of Iraq collapsed, concluded that Washington was a paper tiger, backed away from initial offers to talk over contested issues, and instead (at least for a while) doubled-down on achieving nuclear breakout capacity, aided by the past work of that same A.Q. Khan network. North Korea, another A.Q. Khan beneficiary, followed the same pivot ever farther from Washington, while it became a genuine nuclear power. Its neighbor China pursued its own path of economic dominance, while helping to “pay” for the Iraq War by becoming the number-one holder of U.S. debt among foreign governments. It now owns more than 21% of the U.S. debt held overseas.
And don’t put away the joke book just yet. Subbing as apologist-in-chief for an absent George W. Bush and the top officials of his administration on this 10th anniversary, former British Prime Minister Tony Blair recently reminded us that there is more on the horizon. Conceding that he had “long since given up trying to persuade people Iraq was the right decision,” Blair added that new crises are looming. “You’ve got one in Syria right now, you’ve got one in Iran to come,” he said. “We are in the middle of this struggle, it is going to take a generation, it is going to be very arduous and difficult. But I think we are making a mistake, a profound error, if we think we can stay out of that struggle.”
Think of his comment as a warning. Having somehow turned much of Islam into a foe, Washington has essentially assured itself of never-ending crises that it stands no chance whatsoever of winning. In this sense, Iraq was not an aberration, but the historic zenith and nadir for a way of thinking that is only now slowing waning. For decades to come, the U.S. will have a big enough military to ensure that our decline is slow, bloody, ugly, and reluctant, if inevitable. One day, however, even the drones will have to land.
And so, happy 10th anniversary, Iraq War! A decade after the invasion, a chaotic and unstable Middle East is the unfinished legacy of our invasion. I guess the joke is on us after all, though no one is laughing.
Peter Van Buren, a retired 24-year veteran of the State Department, served in Iraq. A TomDispatch regular, he writes about Iraq, the Middle East, and U.S. diplomacy at his blog, We Meant Well. He is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. He is currently working on a new book, The People on the Bus: A Story of the 99%.
Copyright 2013 Peter Van Buren
If you look backward you see a nightmare. If you look forward you become the nightmare.
There’s one particular nightmare that Americans need to face: in the first decade of the twenty-first century we tortured people as national policy. One day, we’re going to have to confront the reality of what that meant, of what effect it had on its victims and on us, too, we who condoned, supported, or at least allowed it to happen, either passively or with guilty (or guiltless) gusto. If not, torture won’t go away. It can’t be disappeared like the body of a political prisoner, or conveniently deep-sixed simply by wishing it elsewhere or pretending it never happened or closing our bureaucratic eyes. After the fact, torture can only be dealt with by staring directly into the nightmare that changed us — that, like it or not, helped make us who we now are.
The president, a Nobel Peace Prize winner, has made it clear that no further investigations or inquiries will be made into America’s decade of torture. His Justice Department failed to prosecute a single torturer or any of those who helped cover up evidence of the torture practices. But it did deliver a jail sentence to one ex-CIA officer who refused to be trained to torture and was among the first at the CIA to publicly admit that the torture program was real.
At what passes for trials at our prison camp in Guantanamo, Cuba, disclosure of the details of torture is forbidden, effectively preventing anyone from learning anything about what the CIA did with its victims. We are encouraged to do what’s best for America and, as Barack Obama put it, “look forward, not backward,” with the same zeal as, after 9/11, we were encouraged to save America by going shopping.
Looking into the Eyes of the Tortured
Torture does not leave its victims, nor does it leave a nation that condones it. As an act, it is all about pain, but even more about degradation and humiliation. It destroys its victims, but also demeans those who perpetrate it. I know, because in the course of my 24 years as a State Department officer, I spoke with two men who had been tortured, both by allies of the United States and with at least the tacit approval of Washington. While these men were tortured, Americans in a position to know chose to look the other way for reasons of politics. These men were not movie characters, but complex flesh-and-blood human beings. Meet just one of them once and, I assure you, you’ll never follow the president’s guidance and move forward trying to forget.
The Korean Poet
The first victim was a Korean poet. I was in Korea at the time as a visa officer working for the State Department at the U.S. Embassy in Seoul. Persons with serious criminal records are normally ineligible to travel to the United States. There is, however, an exception in the law for political crimes. It was initially carved out for Soviet dissidents during the Cold War years. I spoke to the poet as he applied for a visa to determine if his arrest had indeed been “political” and so not a disqualification for his trip to the U.S.
Under the brutal military dictatorship of Park Chung Hee, the poet was tortured for writing anti-government verse. To younger Americans, South Korea is the land of “Gangnam Style,” of fashionable clothing and cool, cool electronics. However, within Psy’s lifetime, his nation was ruled by a series of military autocrats, supported by the United States in the interest of “national security.”
The poet quietly explained to me that, after his work came to the notice of the powers that be, he was taken from his apartment to a small underground cell. Soon, two men arrived and beat him repeatedly on his testicles and sodomized him with one of the tools they had used for the beating. They asked him no questions. In fact, he said, they barely spoke to him at all. Though the pain was beyond his ability to describe, even as a poet, he said that the humiliation of being left so utterly helpless was what remained with him for life, destroyed his marriage, sent him to the repeated empty comfort of alcohol, and kept him from ever putting pen to paper again.
The men who destroyed him, he told me, entered the room, did their work, and then departed, as if they had many others to visit that day and needed to get on with things. The Poet was released a few days later and politely driven back to his apartment by the police in a forward-looking gesture, as if the episode of torture was over and to be forgotten.
The Iraqi Tribal Leader
The second torture victim I met while I was stationed at a forward operating base in Iraq. He was a well-known SOI leader. The SOI, or Sons of Iraq, were Sunni tribesmen who, as part of Iraq War commander General David Petraeus’s much-discussed “Anbar Awakening” agreed to stop killing Americans and, in return for money we paid them, take up arms against al-Qaeda. That was 2007. By 2010, when I met the man, the Sons of Iraq, as Sunnis, had no friends in the Shia-dominated government of Nouri al-Maliki in Baghdad and the U.S. was expediently allowing its Sunni friendships to fade away.
Over dessert one sticky afternoon, the SOI leader told me that he had recently been released from prison. He explained that the government had wanted him off the street in the run-up to a recent election, so that he would not use his political pull to get in the way of a Shia victory. The prison that held him was a secret one, he told me, under the control of some shadowy part of the U.S.-trained Iraqi security forces.
He had been tortured by agents of the Maliki government, supported by the United States in the interest of national security. Masked men bound him at the wrists and ankles and hung him upside-down. He said that they neither asked him any questions nor demanded any information. They whipped his testicles with a leather strap, then beat the bottoms of his feet and the area around his kidneys. They slapped him. They broke the bones in his right foot with a steel rod, a piece of rebar that would ordinarily have been used to reinforce concrete.
It was painful, he told me, but he had felt pain before. What truly wounded him was the feeling of utter helplessness. A man like himself, he stated with an echo of pride, had never felt helpless. His strength was his ability to control things, to stand up to enemies, to fight, and if necessary, to order men to their deaths. Now, he no longer slept well at night, was less interested in life and its activities, and felt little pleasure. He showed me his blackened toenails, as well as the caved in portion of his foot, which still bore a rod-like indentation with faint signs of metal grooves. When he paused and looked across the room, I thought I could almost see the movie running in his head.
Alone in the Dark
I encountered those two tortured men, who described their experiences so similarly, several years and thousands of miles apart. All they really had in common was being tortured and meeting me. They could, of course, have been lying about, or exaggerating, what had happened to them. I have no way to verify their stories because in neither country were their torturers ever brought to justice. One man was tortured because he was considered a threat to South Korea, the other to Iraq. Those “threatened” governments were among the company the U.S. keeps, and they were known torturers, regularly justifying such horrific acts, as we would also do in the first years of the twenty-first century, in the name of security. In our case, actual torture techniques would reportedly be demonstrated to some of the highest officials in the land in the White House itself, then “legalized,” and carried out in global “black sites” and foreign prisons.
A widely praised new movie about the assassination of Osama bin Laden, Zero Dark Thirty, opens with a series of torture scenes. The victims are various Muslims and al-Qaeda suspects, and the torturers are members of the U.S. government working for the CIA. We see a prisoner strapped to the wall, bloody, with his pants pulled down in front of a female CIA officer. We see another having water poured into his mouth and lungs until he wretches in agony (in what during the Middle Ages was bluntly called “the Water Torture,” later “the water cure,” or more recently “waterboarding”). We see men shoved forcibly into tiny confinement boxes that do not allow them to sit, stand, or lie down.
These are were among the techniques of torture “lawfully” laid out in a CIA Inspector General’s report, some of which would have been alarmingly familiar to the tortured men I spoke with, as they might be to Bradley Manning, held isolated, naked, and without sleep in U.S. military prisons in a bid to break his spirit.
The movie scenes are brutal, yet sanitized. As difficult to watch as the images are, they show nothing beyond the infliction of pain. Horrific as it may be, pain fades, bones mend, bruises heal. No, don’t for a second think that the essence of torture is physical pain, no matter what Zero Dark Thirty implies. If, in many cases, the body heals, mental wounds are a far more difficult matter. Memory persists.
The obsessive debate in this country over the effectiveness of torture rings eternally false: torture does indeed work. After all, it’s not just about eliciting information — sometimes, as in the case of the two men I met, it’s not about information at all. Torture is, however, invariably about shame and vengeance, humiliation, power, and control. We’re just slapping you now, but we control you and who knows what will happen next, what we’re capable of? “You lie to me, I hurt you,” says a CIA torturer in Zero Dark Thirty to his victim. The torture victim is left to imagine what form the hurt will take and just how severe it will be, almost always in the process assuming responsibility for creating his own terror. Yes, torture “works” — to destroy people. <
a href=”http://www.huffingtonpost.com/2012/10/17/khalid-sheikh-mohammed-trial_n_1976430.html” target=”_blank”>Khalid Sheik Mohammed, accused 9/11 “mastermind,” was waterboarded 183 times. Al-Jazeera journalist Sami al-Haj spent six years in the Guantanamo Bay prison, stating, “They used dogs on us, they beat me, sometimes they hung me from the ceiling and didn’t allow me to sleep for six days.” Brandon Neely, a U.S. military policeman and former Guantanamo guard, watched a medic there beat an inmate he was supposed to treat. CIA agents tortured a German citizen, a car salesman named Khaled el-Masri, who was picked up in a case of mistaken identity, sodomizing, shackling, and beating him, holding him in total sensory deprivation, as Macedonian state police looked on, so the European Court of Human Rights found last week.
Others, such as the Court of Human Rights or the Senate Intelligence Committee, may give us glimpses into the nightmare of official American policy in the first years of this century. Still, our president refuses to look backward and fully expose the deeds of that near-decade to sunlight; he refuses to truly look forward and unambiguously renounce forever the use of anything that could be seen as an “enhanced interrogation technique.” Since he also continues to support robustly the precursors to torture — the “extraordinary rendition” of captured terror suspects to allied countries that are perfectly happy to torture them and indefinite detention by decree — we cannot fully understand what men like the Korean poet and the Iraqi tribal leader already know on our behalf: we are torturers and unless we awaken to confront the nightmare of what we are continuing to become, it will eventually transform and so consume us.
Peter Van Buren, a 24-year veteran Foreign Service Officer at the State Department, spent a year in Iraq. A TomDispatch regular, he writes about Iraq, the Middle East, and U.S. diplomacy at his blog, We Meant Well. Following the publication of his book We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, the Department of State began termination proceedings against him. Through the efforts of the Government Accountability Project and the ACLU, he instead retired from the State Department in September 2012.
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Copyright 2012 Peter Van Buren
An All-American Nightmare
We had a debate club back in high school. Two teams would meet in the auditorium, and Mr. Garrity would tell us the topic, something 1970s-ish like “Resolved: Women Should Get Equal Pay for Equal Work” or “World Communism Will Be Defeated in Vietnam.” Each side would then try, through persuasion and the marshalling of facts, to clinch the argument. There’d be judges and a winner.
Today’s presidential debates are a long way from Mr. Garrity’s club. It seems that the first rule of the debate club now is: no disagreeing on what matters most. In fact, the two candidates rarely interact with each other at all, typically ditching whatever the question might be for some rehashed set of campaign talking points, all with the complicity of the celebrity media moderators preening about democracy in action. Waiting for another quip about Big Bird is about all the content we can expect.
But the joke is on us. Sadly, the two candidates are stand-ins for Washington in general, a “war” capital whose denizens work and argue, sometimes fiercely, from within a remarkably limited range of options. It was D.C. on autopilot last week for domestic issues; the next two presidential debates are to be in part or fully on foreign policy challenges (of which there are so many). When it comes to foreign — that is, military — policy, the gap between Barack and Mitt is slim to the point of nonexistent on many issues, however much they may badger each other on the subject. That old saw about those who fail to understand history repeating its mistakes applies a little too easily here: the last 11 years have added up to one disaster after another abroad, and without a smidgen of new thinking (guaranteed not to put in an appearance at any of the debates to come), we doom ourselves to more of the same.
So in honor of old Mr. Garrity, here are five critical questions that should be explored (even if all of us know that they won’t be) in the foreign policy-inclusive presidential debates scheduled for October 16th, and 22nd — with a sixth bonus question thrown in for good measure.
1. Is there an end game for the global war on terror?
The current president, elected on the promise of change, altered very little when it came to George W. Bush’s Global War on Terror (other than dropping the name). That jewel-in-the-crown of Bush-era offshore imprisonment, Guantanamo, still houses over 160 prisoners held without trial or hope or a plan for what to do with them. While the U.S. pulled its troops out of Iraq — mostly because our Iraqi “allies” flexed their muscles a bit and threw us out — the war in Afghanistan stumbles on. Drone strikes and other forms of conflict continue in the same places Bush tormented: Yemen, Somalia, and Pakistan (and it’s clear that northern Mali is heading our way).
A huge national security state has been codified in a host of new or expanded intelligence agencies under the Homeland Security umbrella, and Washington seems able to come up with nothing more than a whack-a-mole strategy for ridding itself of the scourge of terror, an endless succession of killings of “al-Qaeda Number 3” guys. Counterterrorism tsar John Brennan, Obama’s drone-meister, has put it this way: “We’re not going to rest until al-Qaeda the organization is destroyed and is eliminated from areas in Afghanistan, Pakistan, Yemen, Africa, and other areas.”
So, candidates, the question is: What’s the end game for all this? Even in the worst days of the Cold War, when it seemed impossible to imagine, there was still a goal: the “end” of the Soviet Union. Are we really consigned to the Global War on Terror, under whatever name or no name at all, as an infinite state of existence? Is it now as American as apple pie?
2. Do today’s foreign policy challenges mean that it’s time to retire the Constitution?
A domestic policy crossover question here. Prior to September 11, 2001, it was generally assumed that our amazing Constitution could be adapted to whatever challenges or problems arose. After all, that founding document expanded to end the slavery it had once supported, weathered trials and misuses as dumb as Prohibition and as grave as Red Scares, Palmer Raids, and McCarthyism. The First Amendment grew to cover comic books, nude art works, and a million electronic forms of expression never imagined in the eighteenth century. Starting on September 12, 2001, however, challenges, threats, and risks abroad have been used to justify abandoning core beliefs enshrined in the Bill of Rights. That bill, we are told, can’t accommodate terror threats to the Homeland. Absent the third rail of the Second Amendment and gun ownership (politicians touch it and die), nearly every other key amendment has since been trodden upon.
The First Amendment was sacrificed to silence whistleblowers and journalists. The Fourth and Fifth Amendments were ignored to spy on Americans at home and kill them with drones abroad. (September 30th was the one-year anniversary of the Obama administration’s first acknowledged murder without due process of an American — and later his teenaged son — abroad. The U.S. has similarly killed two other Americans abroad via drone, albeit “by accident.”)
So, candidates, the question is: Have we walked away from the Constitution? If so, shouldn’t we publish some sort of notice or bulletin?
3. What do we want from the Middle East?
Is it all about oil? Israel? Old-fashioned hegemony and containment? What is our goal in fighting an intensifying proxy war with Iran, newly expanded into cyberspace? Are we worried about a nuclear Iran, or just worried about a new nuclear club member in general? Will we continue the nineteenth century game of supporting thug dictators who support our policies in Bahrain, Saudi Arabia, Egypt, and Libya (until overwhelmed by events on the ground), and opposing the same actions by other thugs who disagree with us like Iraq’s Saddam Hussein and Syria’s Bashar al-Assad? That kind of policy thinking did not work out too well in the long run in Central and South America, and history suggests that we should make up our mind on what America’s goals in the Middle East might actually be. No cheating now — having no policy is a policy of its own.
Candidates, can you define America’s predominant interest in the Middle East and sketch out a series of at least semi-sensical actions in support of it?
4. What is your plan to right-size our military and what about downsizing the global mission?
The decade — and counting — of grinding war in Iraq and Afghanistan has worn the American military down to its lowest point since Vietnam. Though drugs and poor discipline are not tearing out its heart as they did in the 1970s, suicide among soldiers now takes that first chair position. The toll on families of endless deployments is hard to measure but easy to see. The expanding role of the military abroad (reconstruction, peacekeeping, disaster relief, garrisoning a long necklace of bases from Rota, Spain, to Kadena, Okinawa) seems to require a vast standing army. At the same time, the dramatic increase in the development and use of a new praetorian guard, Joint Special Operations Command, coupled with a militarized CIA and its drones, have given the president previously unheard of personal killing power. Indeed, Obama has underscored his unchecked solo role as the “decider” on exactly who gets obliterated by drone assassins.
So, candidates, here’s a two-parter: Given that a huge Occupy Everywhere army is killing more of its own via suicide than any enemy, what will you do to right-size the military and downsize its global mission? Secondly, did this country’s founders really intend for the president to have unchecked personal war-making powers?
5. Since no one outside our borders buys American exceptionalism anymore, what’s next? What is America’s point these days?
The big one. We keep the old myth alive that America is a special, good place, the most “exceptional” of places in fact, but in our foreign policy we’re more like some mean old man, reduced to feeling good about himself by yelling at the kids to get off the lawn (or simply taking potshots at them).
During the Cold War, the American ideal represented freedom to so many people, even if the reality was far more ambiguous. Now, who we are and what we are abroad seems so much grimmer, so much less appealing (as global opinion polls regularly indicate). In light of the Iraq invasion and occupation, and the failure to embrace the Arab Spring, America the Exceptional, has, it seems, run its course.
America the Hegemonic, a tough if unattractive moniker, also seems a goner, given the slo-mo defeat in Afghanistan and the never-ending stalemate that is the Global War on Terror. Resource imperialist? America’s failure to either back away from the Greater Middle East and simply pay the price for oil, or successfully grab the oil, adds up to a “policy” that only encourages ever more instability in the region. The saber rattling that goes with such a strategy (if it can be called that) feels angry, unproductive, and without any doubt unbelievably expensive.
So candidates, here are a few questions: Who exactly are we in the world and who do you want us to be? Are you ready to promote a policy of fighting to be planetary top dog — and we all know where that leads — or can we find a place in the global community? Without resorting to the usual “shining city on a hill” metaphors, can you tell us your vision for America in the world? (Follow up: No really, cut the b.s and answer this one, gentlemen. It’s important!)
6. Bonus Question: To each of the questions above add this: How do you realistically plan to pay for it? For every school and road built in Iraq and Afghanistan on the taxpayer dollar, why didn’t you build two here in the United States? When you insist that we can’t pay for crucial needs at home, explain to us why these can be funded abroad. If your response is we had to spend that money to “defend America,” tell us why building jobs in this country doesn’t do more to defend it than anything done abroad.
Now that might spark a real debate, one that’s long, long overdue.
Peter Van Buren, a 24-year veteran Foreign Service Officer at the State Department, spent a year in Iraq. Now in Washington and a TomDispatch regular, he writes about Iraq, the Middle East, and U.S. diplomacy at his blog, We Meant Well. Following the publication of his book We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (the American Empire Project, Metropolitan Books), the Department of State began termination proceedings, stripping him of his security clearance and diplomatic credentials. Through the efforts of the Government Accountability Project and the ACLU, Van Buren instead retired from the State Department with his full benefits of service.
Copyright 2012 Peter Van Buren
Don’t Ask and Don’t Tell
Here is what military briefers like to call BLUF, the Bottom Line Up Front: no one except John Kiriakou is being held accountable for America’s torture policy. And John Kiriakou didn’t torture anyone, he just blew the whistle on it.
In a Galaxy Far, Far Away
A long time ago, with mediocre grades and no athletic ability, I applied for a Rhodes Scholarship. I guess the Rhodes committee at my school needed practice, and I found myself undergoing a rigorous oral examination. Here was the final question they fired at me, probing my ability to think morally and justly: You are a soldier. Your prisoner has information that might save your life. The only way to obtain it is through torture. What do you do?
At that time, a million years ago in an America that no longer exists, my obvious answer was never to torture, never to lower oneself, never to sacrifice one’s humanity and soul, even if it meant death. My visceral reaction: to become a torturer was its own form of living death. (An undergrad today, after the “enhanced interrogation” Bush years and in the wake of 24, would probably detail specific techniques that should be employed.) My advisor later told me my answer was one of the few bright spots in an otherwise spectacularly unsuccessful interview.
It is now common knowledge that between 2001 and about 2007 the United States Department of Justice (DOJ) sanctioned acts of torture committed by members of the Central Intelligence Agency and others. The acts took place in secret prisons (“black sites”) against persons detained indefinitely without trial. They were described in detail and explicitly authorized in a series of secret torture memos drafted by John Yoo, Jay Bybee, and Steven Bradbury, senior lawyers in the DOJ’s Office of Legal Counsel. (Office of Legal Counsel attorneys technically answer directly to the DOJ, which is supposed to be independent from the White House, but obviously was not in this case.) Not one of those men, or their Justice Department bosses, has been held accountable for their actions.
Some tortured prisoners were even killed by the CIA. Attorney General Eric Holder announced recently that no one would be held accountable for those murders either. “Based on the fully developed factual record concerning the two deaths,” he said, “the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”
Jose Rodriguez, a senior CIA official, admitted destroying videotapes of potentially admissible evidence, showing the torture of captives by operatives of the U.S. government at a secret prison thought to be located at a Vietnam-War-era airbase in Thailand. He was not held accountable for deep-sixing this evidence, nor for his role in the torture of human beings.
John Kiriakou Alone
The one man in the whole archipelago of America’s secret horrors facing prosecution is former CIA agent John Kiriakou. Of the untold numbers of men and women involved in the whole nightmare show of those years, only one may go to jail.
And of course, he didn’t torture anyone.
The charges against Kiriakou allege that in answering questions from reporters about suspicions that the CIA tortured detainees in its custody, he violated the Espionage Act, once an obscure World War I-era law that aimed at punishing Americans who gave aid to the enemy. It was passed in 1917 and has been the subject of much judicial and Congressional doubt ever since. Kiriakou is one of six government whistleblowers who have been charged under the Act by the Obama administration. From 1917 until Obama came into office, only three people had ever charged in this way.
The Obama Justice Department claims the former CIA officer “disclosed classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities.”
The charges result from a CIA investigation. That investigation was triggered by a filing in January 2009 on behalf of detainees at Guantanamo that contained classified information the defense had not been given through government channels, and by the discovery in the spring of 2009 of photographs of alleged CIA employees among the legal materials of some detainees at Guantanamo. According to one description, Kiriakou gave several interviews about the CIA in 2008. Court documents charge that he provided names of covert Agency officials to a journalist, who allegedly in turn passed them on to a Guantanamo legal team. The team sought to have detainees identify specific CIA officials who participated in their renditions and torture. Kiriakou is accused of providing the identities of CIA officers that may have allowed names to be linked to photographs.
Many observers believe however that the real “offense” in the eyes of the Obama administration was quite different. In 2007, Kiriakou became a whistleblower. He went on record as the first (albeit by then, former) CIA official to confirm the use of waterboarding of al-Qaeda prisoners as an interrogation technique, and then to condemn it as torture. He specifically mentioned the waterboarding of Abu Zubaydah in that secret prison in Thailand. Zubaydah was at the time believed to be an al-Qaeda leader, though more likely was at best a mid-level operative. Kiriakou also ran afoul of the CIA over efforts to clear for publication a book he had written about the Agency’s counterterrorism work. He maintains that his is instead a First Amendment case in which a whistleblower is being punished, that it is a selective prosecution to scare government insiders into silence when they see something wrong.
If Kiriakou had actually tortured someone himself, even to death, there is no possibility that he would be in trouble. John Kiriakou is 48. He is staring down a long tunnel at a potential sentence of up to 45 years in prison because in the national security state that rules the roost in Washington, talking out of turn about a crime has become the only possible crime.
Welcome to the Jungle
John Kiriakou and I share common attorneys through the Government Accountability Project, and I’ve had the chance to talk with him on any number of occasions. He is soft-spoken, thoughtful, and quick to laugh at a bad joke. When the subject turns to his case, and the way the government has treated him, however, things darken. His sentences get shorter and the quick smile disappears.
He understands the role his government has chosen for him: the head on a stick, the example, the message to everyone else involved in the horrors of post-9/11 America. Do the country’s dirty work, kidnap, kill, imprison, torture, and we’ll cover for you. Destroy the evidence of all that and we’ll reward you. But speak out, and expect to be punished.
Like so many of us who have served the U.S. government honorably only to have its full force turned against us for an act or acts of conscience, the pain comes in trying to reconcile the two images of the U.S. government in your head. It’s like trying to process the actions of an abusive father you still want to love.
One of Kiriakou’s representatives, attorney Jesselyn Radack, told me, “It is a miscarriage of justice that John Kiriakou is the only person indicted in relation to the Bush-era torture program. The historic import cannot be understated. If a crime as egregious as state-sponsored torture can go unpunished, we lose all moral standing to condemn other governments’ human rights violations. By ‘looking forward, not backward’ we have taken a giant leap into the past.”
One former CIA covert officer, who uses the pen name “Ishmael Jones,” lays out a potential defense for Kiriakou: “Witness after witness could explain to the jury that Mr. Kiriakou is being selectively prosecuted, that his leaks are nothing compared to leaks by Obama administration officials and senior CIA bureaucrats. Witness after witness could show the jury that for any secret material published by Mr. Kiriakou, the books of senior CIA bureaucrats contain many times as much. Former CIA chief George Tenet wrote a book in 2007, approved by CIA censors, that contains dozens of pieces of classified information — names and enough information to find names.”
If only it was really that easy.
For at least six years it was the policy of the United States of America to torture and abuse its enemies or, in some cases, simply suspected enemies. It has remained a U.S. policy, even under the Obama administration, to employ “extraordinary rendition” — that is, the sending of captured terror suspects to the jails of countries that are known for torture and abuse, an outsourcing of what we no longer want to do.
Techniques that the U.S. hanged men for at Nuremburg and in post-war Japan were employed and declared lawful. To embark on such a program with the oversight of the Bush administration, learned men and women had to have long discussions, with staffers running in and out of rooms with snippets of research to buttress the justifications being so laboriously developed. The CIA undoubtedly used some cumbersome bureaucratic process to hire contractors for its torture staff. The old manuals needed to be updated, psychiatrists consulted, military survival experts interviewed, training classes set up.
Videotapes were made of the torture sessions and no doubt DVDs full of real horror were reviewed back at headquarters. Torture techniques were even reportedly demonstrated to top officials inside the White House. Individual torturers who were considered particularly effective were no doubt identified, probably rewarded, and sent on to new secret sites to harm more people.
America just didn’t wake up one day and start slapping around some Islamic punk. These were not the torture equivalents of rogue cops. A system, a mechanism, was created. That we now can only speculate about many of the details involved and the extent of all this is a tribute to the thousands who continue to remain silent about what they did, saw, heard about, or were associated with. Many of them work now at the same organizations, remaining a part of the same contracting firms, the CIA, and the military. Our torturers.
What is it that allows all those people to remain silent? How many are simply scared, watching what is happening to John Kiriakou and thinking: not me, I’m not sticking my neck out to see it get chopped off. They’re almost forgivable, even if they are placing their own self-interest above that of their country. But what about the others, the ones who remain silent about what they did or saw or aided and abetted in some fashion because they still think it was the right thing to do? The ones who will do it again when another frightened president asks them to? Or even the ones who enjoyed doing it?
The same Department of Justice that is hunting down the one man who spoke against torture from the inside still maintains a special unit, 60 years after the end of WWII, dedicated to hunting down the last few at-large Nazis. They do that under the rubric of “never again.” The truth is that same team needs to be turned loose on our national security state. Otherwise, until we have a full accounting of what was done in our names by our government, the pieces are all in place for it to happen again. There, if you want to know, is the real horror.
Peter Van Buren, a 24-year veteran Foreign Service Officer at the State Department, spent a year in Iraq leading two Provincial Reconstruction Teams. Now in Washington and a TomDispatch regular, he writes about Iraq, the Middle East, and U.S. diplomacy at his blog, We Meant Well. Following the publication of his book We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (The American Empire Project, Metropolitan Books) in 2011, the Department of State began termination proceedings, reassigning him to a make-work position and stripping him of his security clearance and diplomatic credentials. Through the efforts of the Government Accountability Project and the ACLU, Van Buren will instead retire from the State Department with his full benefits of service in late September. We Meant Well has recently been published in paperback. Van Buren is currently working on a second book, about the decline of the blue-collar middle class in America and the roots of the “99 percent.”
[Note to Readers: What’s next for Kiriakou? The District Court for the Eastern District of Virginia will begin Classified Information Procedures Act hearings in his case on September 12. These hearings, which are closed to the public, will last until October 30 and will determine what classified information will be permitted during trial. Kiriakou has pled “not guilty” to all charges and is preparing to go to trial on November 26.]
Copyright 2012 Peter Van Buren