Month: May 2013

According to Peter Scheer, a lawyer and executive director of the First Amendment Coalition (FAC), “the real outrage about the Justice Department’s use of secret subpoenas for the phone records of Associated Press journalists is that…it was probably legal.”

Although federal prosecutors need a court’s OK to obtain the content of phone communications (and most, but not all, email communications), nothing in the relevant federal statute (the Stored Communications Act) requires a prosecutor to satisfy preconditions or to submit to judicial oversight when subpoenaing “metadata” associated with a phone number.

Also relevant are Justice Department guidelines for issuing subpoenas to the media. The guidelines, adopted in the 1970s, contain meaningful (albeit mainly procedural) limits on prosecutors’ discretion. However, the guidelines are just voluntary internal policies, without the force of law. Even if prosecutors failed to follow the guidelines in the AP matter — which is possible, perhaps probable — that dereliction and $2 will buy AP a cup of coffee.

What about the constitution? The Supreme Court dispensed with your Fourth Amendment right to privacy in this area long ago in an obscure and regrettable decision, Smith v. Maryland (1979). The Court ruled that phone company customers have no legitimate privacy interest in phone record data that are in the hands of a third-party, like a phone company.

This should be a lesson in how the so-called rule of law can often be a sham. Legal doesn’t mean good. The government has built up an entire legal edifice to legitimize all kinds of abuse, from surveillance to police brutality.

Legal or not, this scandal has undeniably underscored the Obama administration’s utter disdain for both the press and for personal privacy. The extent of dragnet-style domestic surveillance in the Obama era has been unprecedented. Julian Sanchez, a research fellow at The Cato Institute, writes in Mother Jones that the government is spying on journalists far more often than we think.

Lynn Oberlander at The New Yorker has another worthwhile piece last week about the legality of the DOJ’s actions. Read it here.

I was asked by Al Jazeera to give a short commentary on the AP snooping scandal on their program The Listening Post. The show also has interviews with journalist Jeremy Scahill, Dana Priest of The Washington Post, and Ben Wizner of the ACLU.

Adam Kokesh got his start in anti-government activism as an Iraq Veteran Against the War. He admirably broke Army military rules by protesting the war in his U.S. Marine uniform, and was soon discharged as punishment.

Since then, Kokesh, who had a short-lived television show on Russia Today (now it’s produced independently on his website) has been outspoken on a number of libertarian issues. He’s been arrested numerous times for his non-violent political activism. Something that has gained particular attention very recently is his plan to get at least 1,000 people to march from Virginia into Washington, DC on July 4th armed with loaded guns. He and his followers have vowed to keep it peaceful and after news that the DC police squads plan to meet him at the bridge coming into DC, Kokesh said he plans to simply turn around and walk back to Virginia.

Many in the libertarian movement have caustically criticized Kokesh for his brazenness. Granted, a group of armed libertarians meeting up with DC police squads could be very dangerous, despite promises to remain peaceful. But most of their criticism seems more about criticizing civil disobedience and activism in general, concerned it will reflect poorly on their deferential image. Too many want to regulate the behavior of libertarians and keep things strictly to suits, ties, academic seminars, and writing pedantic policy papers barely anyone will read – as if that’s the only acceptable or productive way to push libertarian ideas.

The state is all about crushing real dissent and punishing the disobedient. No matter how bad things get, no matter how lawless the supposed law-enforcers become, I’m troubled by libertarians who condemn those who refuse to sit up straight and obey the overlords in Washington. Kokesh has consistently refused to be obedient – and I say, more power to him.

This past weekend, Kokesh attended a marijuana legalization event in Philadelphia. Armed with a nothing but a microphone, Kokesh and several dozen others counted down from ten to light up their joints in defiance of the authoritarian drug prohibitions. From the footage, you can see officers marching into the center of the crowd, where Kokesh was, and arresting him. According to many who were there, Kokesh did not himself smoke any weed. But he seemed to be a priority compared to the countless others there illegally smoking marijuana that police briskly walked by without any intent to arrest. You can also see from the several videos taken at the scene that Kokesh did not resist arrest, and instead put his hands up and stood straight while several officers man-handled him.

According to freeadam.net Kokesh is being charged with grabbing an officer’s arm after being pushed – a “felony assault.” The video doesn’t show any evidence of that allegation, but either way, the arrest is an affront to liberty.

As Anthony Gregory writes today, “Resisting arrest is a troubling derivative crime, whereby the state can basically push you around, and if you even react naturally (or the state says you did), it can haul you away. Putting aside problems of arrest, jailing, and the state itself, there should be no crime of ‘resisting arrest’ in a semi-free society. Either you committed a violation of someone’s rights or you did not. If you did not, you have a moral right to resist.”

Is it possible that Adam is being charged with these offenses in order to obstruct his planned march in July? I don’t know. But in any case, what we have here is a peaceful activist, a non-violent resister, and he’s been thrown in jail not for being harmful to anybody’s person or property, but for being disobedient in the face of unjust laws. The latter is a crime only to those with authoritarian inclinations and a calm respect for the police state.

Update: It’s important for me to point out that Iraq Veterans Against the War are not associated with Kokesh or his current activities, nor have they been since they parted ways several years ago. IVAW released the following statement:

Iraq Veterans Against the War (IVAW) neither endorses nor is affiliated with Adam Kokesh’s ‘Open Carry March on Washington’ planned for July 4th. This event is in direct conflict with our Resolution That IVAW Only Use, Supports or Endorses Non-Violent and Peaceful Actions adopted August 8, 2009 and section C of our Code of Conduct which includes prohibited behavior of members as: “Conduct or threats endangering the life, safety, and/or health of others.”

“A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home.” -James Madison

As previously discussed in these spaces by Kelley Vlahos, Lucy Steigerwald, and myself, a group of senators are mulling a revision to the 2001 Authorization for the Use of Military Force against those who perpetrated the 9/11 attacks. In Senate testimony today, several Pentagon officials tried to dissuade making any changes to the law, which has been notoriously beneficial to the expansion of the warfare state and terribly detrimental to the rule of law, government transparency, and human liberty in general.

Indeed, “the AUMF opened the doors to the US wars in Iraq, Afghanistan and Libya; attacks on Pakistan, Yemen, Somalia and Mali; the new drone bases in Niger and Djibouti; and the killing of American citizens, notably Anwar al-Awlaki and his 16-year-old noncombatant son,” write Michael Shank and Matt Southworth in the Guardian.

“It is what now emboldens the hawks on the warpath to Syria, Iran and North Korea,” they add.

One of the witnesses today, Assistant Secretary for Special Operations Michael Sheehan, said keeping the 2001 AUMF in place is important to facilitate the ongoing “war on terrorism,” which, he said, will last “at least ten to twenty [more] years.” And thanks to the terse wording of the law, that war has no geographic limit. Any individual or group unilaterally deemed an “associated force” by top officials can be targeted by the U.S. war machine anywhere in the world. And this extraordinary power cannot be rescinded until the overlords in the White House and the Pentagon say so.

It’s ironic that Sheehan made such a dramatic prediction of continuing to fight this “war,” if you can call it that, for another ten to twenty years when top national security officials have been noting publicly al-Qaeda’s growing irrelevance. Danger Room:

It was just two months ago the top U.S. intelligence official testified that al-Qaida had been battered by the U.S. into a state of disarray. A year ago, the current CIA director, John Brennan, said that “For the first time since this fight began, we can look ahead and envision a world in which the al Qaeda core is simply no longer relevant.” Just this week, the commander of the Joint Special Operations Command, Army Lt. Gen. Joseph Votel, told a Florida conference that he was looking at missions beyond the counterterrorism manhunt.

So why insist on keeping the blank-check-for-war AUMF intact?

First, the 2001 AUMF was a wet dream for the Masters of War in Washington who yearn for the day when any and all constraints on their actions in the realm of “national security” would evaporate. It carries with it immense, unchecked power that they are wont to preserve.

Second, in order to continue to carry out their Imperial Grand Strategy, they need to perpetuate a bogeyman. Without a monster to destroy, the public is much less apt to grant the state carte blanche to make war at will and keep it secret.

In an interview last year, former Secretary of State Colin Powell lamented, in a moment of candor, the fall of the Soviet Union. He described, admittedly with some irony, how apparently remorseful he and others in the military establishment were that America “lost our best enemy.” He said it was “one of the biggest challenges” he “ever faced” when the Cold War ended. That is, when we became much safer as opposed to when we might have faced a new enemy.

Absent the pretext of the Soviet threat, the thinking goes, how will we justify the expanding military and national security state? Powell says of the trumped up Soviet “threat” in no uncertain terms, “we’ve got a good thing going here.” The system – the “whole structure,” as he calls it, far from aiming to eliminate threats, “depended on there being a Soviet Union that might attack us.”

Al-Qaeda’s unlikely success on 9/11 helped change all that, and ever since, Washington has had a bogeyman to help justify expanding the warfare state.

In the March/April 2012 issue of Foreign Affairs magazine, Micah Zenko and Michael A. Cohen argue that we have a system that fuels unnecessary alarm and paranoia. “Warnings about a dangerous world also benefit powerful bureaucratic interests,” they write. “The specter of looming dangers sustains and justifies the massive budgets of the military and the intelligence agencies, along with the national security infrastructure that exists outside government — defense contractors, lobbying groups, think tanks, and academic departments.”

With any luck, the pleadings of the highest Pentagon officials won’t be heeded and AUMF can, as it should, be repealed. Unfortunately, that is not at all likely.

Via NPR, Holder said yesterday in a news conference that he’s not sure how many times he’s signed off on Justice Department requests to spy on journalists:

“I’m not sure how many of those cases…I have actually signed off on,” Holder said. “I take them very seriously. I know that I have refused to sign a few [and] pushed a few back for modifications.

Could he give a ballpark? Could he even vaguely reassure reporters that it is a very rare occurrence? No, all he can manage to say is he has nixed “a few” efforts to spy on journalists.

It’s hard not to suspect that the Justice Department’s snooping on journalists from the Associated Press is far more common than anyone has so far suggested. In this latest case, they just had the misfortunate of getting caught.

Here’s a few wise words from Harvard professor of international affairs Stephen Walt on Twitter:

Wiretaps on journalists are a consequence of nat sec state: the more we meddle overseas, the more secrets we keep and the more we fear leaks

— Stephen Walt (@stephenWalt) May 15, 2013

Wiretaps also result of threat inflation: civil liberties go out window once people convinced whole world is vital and that dangers abound.

— Stephen Walt (@stephenWalt) May 15, 2013

With the manufactured Benghazi scandal tying with the IRS for the story that the right is pretending is a story, it’s worth looking back at what a real scandal looks like. Most people think of Watergate when they think “scandal” but by Nixon standards, Watergate is just a little icing on the cake.

The premise behind the Benghazi scandal is that the President failed to label the attack an “act of terror,” and misled Americans about the attack; both for political reasons. Some Conservatives are even calling for impeachment. Aside from the dubious nature of the allegations, it may be worth asking the right to examine the plank lodged in its eye before inventing a speck in the President’s.

Consider, for instance, Nixon sabotaging the Paris Peace Accords for blatantly political reasons. Christopher Hitchens wrote in his compact but explosive expose on Kissinger, The Trials of Henry Kissinger,

In the fall of 1968, Richard Nixon and some of his emissaries and underlings set out to sabotage the Paris peace negotiations on Vietnam. The means they chose were simple: they privately assured the South Vietnamese military rulers that an incoming Republican regime would offer them a better deal than would a Democratic one. In this way, they undercut both the talks themselves and the electoral strategy of Vice President Hubert Humphrey. The tactic “worked,” in that the South Vietnamese junta withdrew from the talks on the eve of the election, thereby destroying the peace initiative on which the Democrats had based their campaign.

The recently released Johnson tapes confirm that not only is Nixon partially responsible for the tens of thousands of Americans and Vietnamese who needlessly died after the talks fell apart, but Johnson was aware of the “treason.”

And what about the Iran-Contra affair? Even today, many Americans may be surprised at just what the Reagan administration did: high level officials secretly sold weapons to Iran through Israel (to get hostages freed for political purposes) and then used the money to illegally fund the Contras in Nicaragua. After tens of thousands of innocent civilians were maimed by the guerrilla forces that were fighting against the elected government of Nicaragua, the Nicaraguans took the U.S. to the World Court and won. The court found the U.S. guilty of “hereof which involve the use of force, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to use force against another State.” Reagan ignored the decision and the U.S. used its position on the Security Council to block any enforcement of the judgement.

But, what about the IRS targeting Tea Party groups? Well, a little paperwork certainly is annoying, but it’s hardly the worst thing the U.S. government has done to political enemies. Consider COINTELPRO, the FBI’s program to disrupt domestic political organizations. The program included reporting members of the Socialist Workers Party to their bosses, a “war” against to discredit Rev. King Jr. and after spending years subverting the Black Panthers, evenually assassinating a Black Panther leader, Fred Hampton. Read that twice.

We could discuss Ford giving Suharto a go ahead to invade East Timor, Operation MONGOOSE, the recent discovery that the U.S. killed enemies of the Pakistani government for access to airspace, but the larger point remains: the Benghazi “scandal” is a product of the right-wing echo chamber, not legitimate outrage over truly nefarious actions. Those who follow hyperlinks will note with despair that most of my sources come from foreign media, where most of the reporting on real scandals occurs. The American media (with the exception of outlets like Antiwar.com free of commercial censorship) will largely report on minor scandals, leaving the good stuff to be buried decades in the future. Even today, most Americans know of Watergate, but few know of COINTELPRO and the Paris Accords.

Sean McElwee has previously written for The Day and The Norwich Bulletin and on WashingtonMonthly.com and Reason.com. He is a writer for The Moderate Voice. Visit his blog at http://www.seanamcelwee.com.