Month: August 2013

QOTD: Ari Melber

by digby

I’ve been tough on some of the MSNBC shows recently for being a little bit too, shall we say, close to the administration on these NSA leaks. I have also singled out Chris Hayes for doing good work on this but neglected to mention that Ari Melber has been a stalwart civil libertarian throughout. Today’s commentary is a good example:

Holding classified information for a reporter is not the same as swallowing a bag of heroin for a drug dealer. Not only is that common sense – it’s the law. If simply possessing classified information were a crime, I’d be speaking to you from a room full of criminals. In our newsroom, reporters and staff possess classified information and unauthorized government disclosures and materials. Very few significant news stories are based on press releases alone. If you report on the government, sometimes you report on what it’s not telling the public.

I would think this should be obvious to any journalists. But it’s not.

Visit NBCNews.com for breaking news, world news, and news about the economy

Greenhouse gas regulations spurring community innovation

by David Atkins

One of the arguments made by conservatives against government regulations is that they don’t work, or that they cause more harm than good. It’s early yet, but when it comes to greenhouse gas regulations in California communities are coming up with interesting and innovative ways to make improvements:

When California’s S.B. 375 was passed in 2008, there were many skeptics. The law aimed to get metropolitan regions around the state to cut greenhouse gas emissions through changes to development form and transportation. (If it were a country, California would rank somewhere between the world’s 10th and 12th largest economy, so its effect could be significant.)

In 2011, the California Air Resources Board set GHG emissions reduction targets by metro region for passenger vehicles (passenger vehicles account for almost a third of GHGs in the state). Eighteen Metropolitan Planning Organizations were then to develop “sustainable community strategies,” wherein integrated transportation, housing, and community development, working together, could help achieve those specific objectives.

The idea was that smart, sustainable community design, coordinated with transportation systems that integrated walkability, bicycles, and next generation public transit, could really make a difference. It’s honestly much too soon to tell whether this will work. But here’s a quick look at three prominent metropolitan regions and their responses to this mandate.

Be sure to read the whole article: these cities are doing fascinating things with land use planning to make the regulations work in ways that benefit public and private space. In a lot of ways, regulation can be a source of innovation.

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Perpetual war and its costs

by digby

I’m pretty sure Andrew Bacevich isn’t a dirty hippie, but maybe he’s smoking doobies and dancing to “One Love” these days for all I know. In any case, just — this:

Are Bradley Manning and Edward Snowden traitors or patriots? With Manning in jail and Snowden the subject of a global APB, the Obama administration has made its position on the question clear.

Yet for the rest of us, the question presumes a prior one: To whom do Army privates and intelligence contractors owe their loyalty? To state or to country? To the national security apparatus that employs them or to the people that apparatus is said to protect?

Those who speak for that apparatus, preeminently the president, assert that the interests of the state and the interests of the country are indistinguishable. Agencies charged with keeping Americans safe are focused on doing just that. Those who leak sensitive information undermine that effort and therefore deserve to feel the full force of law.

But what if the interests of the state do not automatically align with those of the country? In that event, protecting “the homeland” serves as something of a smokescreen. Behind it, the state pursues its own agenda. In doing so, it stealthily but inexorably accumulates power, privilege and prerogatives.

Wars — either actual hostilities or crises fostering the perception of imminent danger — facilitate this process. War exalts, elevates and sanctifies the state. Writing almost a century ago, journalist Randolph Bourne put the matter succinctly: “War is the health of the state.” Among citizens, war induces herd-like subservience. “A people at war,” Bourne wrote, “become in the most literal sense obedient, respectful, trustful children again, full of that naive faith in the all-wisdom and all-power of the adult who takes care of them.”

Bourne’s observation captures an essential theme of recent U.S. history. Before the Good War gave way to the Cold War and then to the open-ended Global War on Terror, the nation’s capital was a third-rate Southern city charged with printing currency and issuing Social Security checks. Several decades of war and quasi-war transformed it into today’s center of the universe. Washington demanded deference, and Americans fell into the habit of offering it. In matters of national security, they became if not obedient, at least compliant, taking cues from authorities who operated behind a wall of secrecy and claimed expertise in anticipating and deflecting threats.

Popular deference allowed those authorities to get away with murder, real and metaphorical. Benefits accruing to the country proved mixed at best, and the expertise claimed by those inside the Beltway did not automatically translate into competence. If doubts on that score persisted, the events of Sept. 11, 2001, and the mismanaged wars that followed ought to have demolished them.

Yet in Washington such setbacks, however costly or catastrophic, make little impression. The national security state has a formidable capacity to absorb, forget and carry on as if nothing untoward had transpired. The already forgotten Iraq war provides only the latest example.

Critics and outsiders are not privy to the state’s superior knowledge; they are incapable of evaluating alleged threats. Here is the mechanism that confers status on insiders: the control of secrets. Their ownership of secrets puts them in the know. It also insulates them from accountability and renders them impervious to criticism.

In such a mechanism, Bourne observed, “dissent is like sand in the bearings.” The metaphor is singularly apt. In the realm of national security, dissent matters only when it penetrates the machine’s interior. Only then does the state deem it worthy of notice.

To understand this is to appreciate the importance of what Manning and Snowden have done and why their actions have produced panic in Washington. Here is irrefutable evidence of dissent penetrating the machine’s deepest recesses. Thanks to a couple of tech-savvy malcontents, anyone with access to the Internet now knows what only insiders were supposed to know.

By taking technology that the state employs to manufacture secrets and using it to make state secrecy impossible, they put the machine itself at risk. Forget al-Qaeda. Forget Iran’s nuclear program. Forget the rise of China. Manning and Snowden confront Washington with something far more worrisome. They threaten the power the state had carefully accrued amid recurring wars and the incessant preparation for war. In effect, they place in jeopardy the state’s very authority — while inviting the American people to consider the possibility that less militaristic and more democratic approaches to national security might exist.

In the eyes of the state, Manning and Snowden — and others who may carry on their work — can never be other than traitors. Whether the country eventually views them as patriots depends on what Americans do with the opportunity these two men have handed us.

I posted the whole thing because I think its fundamental point is so important. None of this surveillance and covert activity could be rationalized if this nation didn’t consider itself on a perpetual war footing (the enemies changing as necessary with the times.) This is bankrupting our country both financially and morally. It’s been going on since before I was born — and I’m old. And it has enabled a security state of unprecedented proportions. It’s especially concerning now that the Manichean rationale of the cold war is long over and we can no longer make even the slightest claim to a serious, existential threat. That we’ve ramped this war footing up even beyond our cold war capabilities on the basis of a rag tag bunch of terrorists is mind boggling when you think about it.

We had a good run with this. The US was extremely prosperous even as it became a military behemoth. But it’s not working anymore. Yet the machine just keeps on cranking creating new and different reasons for its existence. The money, the secrecy, the overriding power this national security state now produces and depends upon is distorting our democracy, our economy and our security. And we can have dozens of Snowdens revealing secrets or other whistleblowers revealing corruption in the contracting business or government officials being revealed to have overstepped their grounds — along with all the so-called reforms that will inevitably follow — but it won’t change a thing unless we understand that the fundamental problem is our status as global military empire and the resulting necessity to find new enemies and create perpetual war to rationalize it.

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The NRA on “freedom”

by digby

Good God:

Man does this country have its priorities screwed up.

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How to gain expertise in stealing secrets

by digby

Oh my.  In light of Jeffrey Toobin’s scathing indictment yesterday of Greenwald, Snowden and David Miranda (comparing them to political assassins and drug mules) this little piece of history unearthed by Kevin Kosztola is very interesting indeed:

In journalist Michael Isikoff’s book, Uncovering Clinton: A Reporter’s Story, he described how Toobin was caught “having absconded with large loads of classified and grand-jury related documents from the office of Iran-Contra independent counsel Lawrence Walsh” in 1991.

Toobin, it turned out, had been using his tenure in Walsh’s office to secretly prepare a tell-all book about the Iran-contra case; the privileged documents, along with a meticulously kept private diary (in which the young Toobin, a sort of proto-Linda Tripp, had been documenting private conversations with his unsuspecting colleagues) were to become his prime bait to snare a book deal. Toobin’s conduct enraged his fellow lawyers in Walsh’s office, many of whom viewed his actions as an indefensible betrayal of the public trust. Walsh at one point even considered pressing for Toobin’s indictment.

Toobin was “petrified” that he would have to face criminal charges for stealing information for a rather dubious book deal. And, according to Isikoff, he either “feared dismissal and disgrace, or simply wanted to move on,” and he “resigned from the U.S. Attorney’s office in Brooklyn (where he had gone to work after Walsh) and abandoned the practice of law.”

Walsh’s memoir on the Iran-Contra investigation, Firewall, included more details on Toobin’s act:

During our negotiations over the timing of the book’s publication, Toobin and his publisher surprised us with a preemptive suit to enjoin me from interfering with the publication or punishing Toobin for having stolen hundreds of documents, some of them classified, and for exposing privileged information and material related to the grand jury proceedings. I could understand a young lawyer wanting to keep copies of his own work, but not copying material from the general files or the personal files of others.

But hey, it’s not as if he was being a narcissist. He just stole classified information to start his new career as a journalist. That’s important. And totally understandable. A man’s got to do what a man’s got to do. You have to admit, this does make him something of an expert on the subject although his publications and TV employers surprisingly haven’t explained to their audiences why he is so uniquely qualified to offer his opinion on the subject of stealing classified documents.

I couldn’t help but recall this exchange with Eliot Spitzer back when the Wikileaks story first broke. Spitzer was discussing the fact that Bob Woodward routinely exposes classified information in his books and nobody seems to mind it one bit — he’s heralded as the greatest investigative reporter of his time:

SPITZER: I want to ask Jeff a question though, because I want to come back to this Woodward distinction. You would agree with Clay and Naomi, I think, that Julian Assange would be precisely Bob Woodward if he had been the recipient of these documents, is that correct?

TOOBIN: I’d have to know a lot more.

SPITZER: But it might be the case.

TOOBIN: It well might be the case.

SPITZER: OK. So you’re sort of clear articulation of the beginning that he clearly violated something maybe not so much.

TOOBIN: I’m not sure. Certainly the attorney general of the United States seems to think criminal — criminal activity was involved here. But I think the wholesale taking of enormous quantities of classified information and putting it on the Internet, even if you don’t put all 250,000 documents on, I think that is a meaningful distinction from what Bob Woodward does.

SPITZER: It seems to me that Bob Woodward arguably did something much more egregious. He took real-time decisions about why we were going to war in Afghanistan, the discusses our rationale, where we would go, spoke to the most senior political and military officials in the nation and blasted that out in the book. A clear distinction.

TOOBIN: Well, again, there is a distinction in part because the president of the United States and the vice president are allowed to declassify anything they want at any time for any reason. So if the president declassified —

SPITZER: A lot of people who didn’t have that power were sourced in that book. Seemed to be speaking in clear violation. They, in fact, should be subject to criminal investigations.

TOOBIN: I always wondered why — why Woodward gets away with it. It’s an interesting question.

Yeah, I’m sure Jeffrey Toobin has always wondered why Bob Woodward “gets away with it.” He’s a funny guy.

Meanwhile, there are whole bunch of other sources today  who must be irritating Jeffrey Toobin to no end:

The National Security Agency—which possesses only limited legal authority to spy on U.S. citizens—has built a surveillance network that covers more Americans’ Internet communications than officials have publicly disclosed, current and former officials say…

Details of these surveillance programs were gathered from interviews with current and former intelligence and government officials and people from companies that help build or operate the systems, or provide data. Most have direct knowledge of the work.

I hope they know that according to esteemed scholar Jeffrey Toobin they’re subject to jail time. That’s the rule, right?  Or is the fact that they are members of the government and industry giving information about classified programs to the Wall Street Journal that makes all the difference here? It’s hard to know. But Jeffrey Toobin has not been crusading against Barton Gellman or Dana Priest or Bob Woodward and he hasn’t been condemning the sources they are talking to.  He certainly hasn’t condemned his own behavior. So you can draw your own conclusions.

It seems apropos to note here two pieces about this case by Jay Rosen.  The first is called The Toobin Principle, and it discusses the circular logic which holds that we should be grateful to know about these secret programs so we can reform them in democratic fashion — but throw the book at the person who revealed them to us.

And this from yesterday, called Conspiracy to commit journalism is a brilliant discussion of how journalism is changing in light of the cross border surveillance state — and how it can keep us free.

Update: Jeffrey Toobin sent this court document via email  showing that the judge found him not to be liable for these charges because most of the the documents he took didn’t reveal information that wasn’t already public through reporting and hearings etc of the Iran-Contra investigation.

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Private Manning gets 35 years


by digby

This is justice?

Army judge Col. Denise Lind Wednesday sentenced whistle-blower Pfc. Bradley Manning to 35-years in prison. The soldier, who passed to WikiLeaks troves of classified material revealing U.S. military malfeasance and criminality, will also be dishonorably discharged from the military and forfeit all pay and allowances.

Manning was found guilty earlier this month of violating the Espionage Act on six counts, stealing government property, violating the Computer Fraud and Abuse Act and multiple counts of disobeying orders.

At 25-years-old, the whistle-blower will be behind bars until he is 60-years-old if he serves the full sentence handed down Wednesday.

While the government prosecution had pushed for Manning to serve a 60-year sentence of a possible 90 years that his charges could amount to, the prosecutor’s desire to see Manning spend much of his life in confinement will be fulfilled.

He was abused in prison. The government has made its point crystal clear to all members of the military who might think of doing such a thing in the future. The court could have been lenient in the sentence and it wasn’t.

Just as a little reminder, this was what allegedly made him decide to give material to Wikileaks:

On April 4, 2010, whistle-blowing website WikiLeaks published a classified video of a United States Apache helicopter firing on civilians in New Baghdad in 2007. The video, available at www.collateralmurder.com, shows Americans shooting and killing 11 individuals who do not return fire. Two of those killed were Reuters’ employees, including 22 year old Reuters’ photojournalist Namir Noor-Eldeen and his driver, 40 year old Saeed Chmagh.

The video includes an audio recording of the internal commentary by the American soldiers before, during and after the shooting. The soldiers repeatedly request and are granted permission to open fire, encourage one another and joke about the dead and dying civilians. (Full transcript available here)

A total of 11 adults were killed. Two children, passengers in a van that arrived on the scene after the first bout of gunfire had ceased, were seriously injured when the Apache helicopter opened fire on their van.

In 2007, Reuters called for an investigation into the attack. In response, a spokesman for the multinational forces in Baghdad stated: “There is no question that coalition forces were clearly engaged in combat operations against a hostile force.”

Read the Army’s report on the death’s of two Reuter’s employees and the wounding of the two children.

There was no investigation into the nine other deaths.

No charges have been filed against the American soldiers in the Apache helicopter who shot and killed the civilians in the video.

So the people who did that wanton killing will pay no price. But Bradley Manning will do many years in prison for revealing what they did.

It’s a very long sentence. One can only hope that the US government shows the same compassion toward Bradley Manning that it showed to convicted mass murderer William Calley after the Mi Lai massacre:

Twenty-five enlisted men and officers were charged with the crimes at My Lai, including Calley’s superior, Ernest Medina, who gave the order to attack the village. In the end, though, only Calley was found guilty—of premeditated murder. Even his critics saw him as a scapegoat, a low-ranking officer who was just following orders. “Calley may have been more zealous than others, but he was doing what was expected,” says Ron Ridenhour, the GI who heard about the massacre from friends in Charlie Company and worked tirelessly to expose it. “This was not the aberration of one wild officer. My Lai was an act of policy. Calley had his guilt, but he was just one small actor in a very large play, and he did not write the script.”

Inevitably, he became a lightning rod for a country bitterly divided over the war. Antiwar protesters compared him to Charles Manson. At the same time, there were rallies for Calley, and politicians such as George Wallace came to his defense. Women sent him nude photos, and some proposed marriage. There were pop songs written about him, as well as books and a Broadway musical. One admirer even gave him a Mercedes.

“My last name was massacre,” Calley once said. “I was in a windstorm. I lived in a cage.” Yet it was a more comfortable cage than one might expect for a convicted murderer. Sentenced to life imprisonment, Calley spent only three days in the stockade at Fort Benning before President Nixon ordered his release to house arrest. Three years later he was a free man, paroled by the Secretary of the Army.

If you think that William Calley had a rough time after that, think again. The 1989 People magazine profile from which that’s lifted reveals that he went on to lead a very nice upper middle class suburban life. He had no trouble living with his crimes, evidently.

For revealing army war crimes Pfc. Bradley Manning has already done far more time in prison than Lieutenant William Calley did for committing them.  Yes, the government has made its point crystal clear.

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How can you judge Big Data surveillance if you don’t understand email?

by David Atkins

Big Data is a big and complex problem. It’s obvious that the government figures, as Digby said, that the 4th Amendment is an antiquated inconvenience in a world where Target knows you’re pregnant before your family does, and Facebook knows more about most of its users than the Stasi ever could have. It’s a thorny issue, one that will grow in significance as we approach a future of individualized genomic medicine and statistically modeled problem solving in the public policy arena.

It’s also clear, though, that the potential for governmental abuse of Big Data is very large, and the consequences of that abuse are very dangerous. It’s critical, then, that the highest court in the land have a firm grasp of these issues, in order to strike the right balance between 4th Amendment protections and the promise and peril of Big Data.

Sadly, it appears that the Court we have barely understands email:

Elena Kagan says she and her fellow Supreme Court justices aren’t the most tech savvy group of people and still communicate with each other the same way they did when she was a clerk in 1987: with paper memos.

In an appearance in Providence on Tuesday, Kagan acknowledged the justices have a ways to go to understand technologies such as Facebook, Twitter and even email.

“It’s a challenge for us,” Kagan said, while also noting that she herself uses email, goes online and reads blogs…

Kagan said the justices often turn to their clerks, who are much younger, to help them understand new technologies.

But they also try to learn on their own. In one case, involving violent video games the first year she was on the court, justices who had never played the games before dove in and gave them a try, Kagan said.

“It was kind of hilarious,” she said.

She didn’t say which games they played.

I’m not sure what can be done to solve this problem, but Constitutional issues in a rapidly changing world can’t be adequately judged by people who are 25 years behind the times, relying on secondhand descriptions of the modern world from staff. How could people who barely comprehend email possibly make coherent judgments about the intricacies of electronic data collection methods?

Much of the Administration’s case on NSA overreach is that the Supreme Court has declared all its activity legal under the 4th Amendment. Maybe so, but it appears that that’s not saying much.

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Double trouble

by digby

Best White House dog(s) ever. And that’s saying something because whatever you might think of the men who’ve held the office, the First Pets are always wonderful. But these two … well, they’re so cute it hurts.

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They really want to get to your private information

by digby

This zeal to get all up in people’s private business isn’t just about terrorism folks. But you knew that:

In 2007, the police arrested a Massachusetts man who appeared to be selling crack cocaine from his car. The cops seized his cellphone and noticed that it was receiving calls from “My House.” They opened the phone to determine the number for “My House.” That led them to the man’s home, where the police found drugs, cash and guns.

The defendant was convicted, but on appeal he argued that accessing the information on his cellphone without a warrant violated his Fourth Amendment rights. Earlier this year, the First Circuit Court of Appeals accepted the man’s argument, ruling that the police should have gotten a warrant before accessing any information on the man’s phone.

The Obama Administration disagrees. In a petition filed earlier this month asking the Supreme Court to hear the case, the government argues that the First Circuit’s ruling conflicts with the rulings of several other appeals courts, as well as with earlier Supreme Court cases. Those earlier cases have given the police broad discretion to search possessions on the person of an arrested suspect, including notebooks, calendars and pagers. The government contends that a cellphone is no different than any other object a suspect might be carrying.

But as the storage capacity of cellphones rises, that position could become harder to defend. Our smart phones increasingly contain everything about our digital lives: our e-mails, text messages, photographs, browser histories and more. It would be troubling if the police had the power to get all that information with no warrant merely by arresting a suspect.

This would conveniently make it so that the local, state and federal police can just seize someone’s phone to get all that lovely personal data without having to make up some phony rationale about it being related to terrorism. (That whole thing’s getting a little touchy, dontcha know?)

If the courts ultimately side with the Obama administration, anyone can be arrested on a trumped up charge, their cell phone seized, their email and other personal info accessed all without probable cause. And heck, if they just happen to find something … well, that’s your bad luck isn’t it? If you don’t have anything to hide …

This has nothing to do with keeping the babies safe and everything to do with a government that has decided that the 4th Amendment is getting in its way and that an expectation of privacy is an anachronism that only a bunch of irrelevant cranks or criminals care about. I don’t see how you can interpret their actions any other way.

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Republicans are immune to their own extremism…for now

by David Atkins

Greg Sargent has two tremendous overviews today: the first on the upcoming budget wars, and the second on immigration.

Both posts, especially combined with this sobering, smart take from Chait on the Dems’ small chances of taking the House in 2014, reinforce something I’ve been saying for quite some time now: Republicans are mostly electorally immune to their extremism for the next long while. To be sure, the Republican Party faces increasingly long odds in Presidential elections, and the 2020 census may be a devastating blow in the 2022 elections after the current wildly gerrymandered lines are replaced. But for most Republican legislators staring down the next few election cycles, the biggest threats still come from the right rather than the left or the middle. Extremism, in short, will be rewarded.

Most centrist pundits don’t want this to be true. There is a cottage industry in pundit land to declare that Americans are basically centrists or center right, and that extremism on either side will be punished. Political parties are seen as polarizing influences and necessary evils at best, clouding the natural agreements that most Americans share about public policy.

But the reality of American politics is very different. There is a liberal America mostly concentrated on the coasts, highly educated populations, heavily minority populations, and in larger urban areas. There is a conservative America concentrated in whiter, more exurban and rural areas. There’s frankly not that much in between. One of the reasons that the Affordable Care Act has such tepid support is that most Americans are either against it completely, or would prefer something stronger. Most Americans want to increase taxes on the wealthy; the minority who oppose that policy want to cut them. Most Americans favor significantly stricter gun controls; those who don’t are adamant about relaxing them. There’s very little constituent support on most policy issues for a centrist, Third Way approach.

America, then, is a polarized nation. But it’s not equally polarized. It’s clear to almost everyone that the Right has shifted dramatically farther to the right, while the left has only shifted leftward on a smattering of social issues such as gay rights, but mostly shifted rightward on issues like economics and civil liberties. The politics of Eisenhower and Nixon on economics and foreign policy would find themselves comfortably at home on the leftward side of the Democratic Party, while Ronald Reagan would be considered a RINO in today’s Republican Party.

Add to this toxic brew a radically gerrymandered electorate in which Democrats can win 1.4 million more votes nationally for House candidates yet still find themselves a double-digit House minority, and it’s clear that politics doesn’t work in the neat way that centrist pundits would like to pretend. As Chait notes, the most radical Republicans are actually the safest Republicans. The ones likeliest to compromise are the ones most likely to be defeated by a Democratic opponent, a conservative primary challenge, or both.

What this means is that politics are only going to get uglier from here. House Republicans may not be able to evade a government shutdown by their own caucus, a result that nearly guarantees a loss in the 2016 Presidential election (unless, of course, Democrats are misguided enough to cut key social safety net programs to appease them.) Republicans may not be able to persuade their caucus to pass immigration reform, a fact that will surely doom them in decades to come. Ayn Rand’s objectivist worldview will continue to have a greater effect on House Republicans.

The comeuppance for all of this will be apparent in the early-to-mid next decade, if Democrats play their cards right. But most politicians in the House don’t look that far ahead. Which means that centrist pundits will be wringing their hands for some time to come, creating false equivalences wherever they can in order to explain the lack of natural consequences for Republican extremism in the months and years ahead.

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