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Boycott Angora

Northern-Light-HM-Jumper2

This post originally appeared in The Huffington Post and Alternet.

It would be dishonest of me to say that I recommend watching PETA Asia’s video exposing the barbaric methods employed by Chinese laborers in the manufacture of angora fabrics. Even by the standards of animal cruelty investigative videos, PETA Asia’s footage is hard to watch. If you’re not prepared to see it for yourself, allow this description to suffice: bunny rabbits are shown strapped to boards, having their fur torn out at the roots by hand until they’re bald, screaming throughout the entire agonizing process. Then they’re thrown into solitary cages where they live out their short, miserable lives, going through the same torture every two months until their throats are finally slit.

The good news is that if you want to take a step toward ending these horrific practices, watching the video isn’t the most important thing you can do. The important thing is to do is this: boycott angora.

I live with two pet bunny rabbits, so my sympathy for the species is personal. Here’s what I know from my experience: Rabbits are highly social creatures, with much more distinct and idiosyncratic personalities than most people would expect. They crave affection, from each other and from their human companions. They experience pain and fear. And under normal circumstances, they never, ever scream.

It’s easy enough to blame China, from which 90 percent of the world’s angora fur is sourced, for the horrors visited upon angora rabbits and other domesticated animals at their end of the industrial supply chain (and even easier to ignore what takes place at ours). As in the United States at the turn of the 20th century and England in the late 1800s, the breakneck pace of Chinese industrialization has generated both enormous wealth and massive poverty and desperation. It’s a society in a stage of anarchic capitalism. Just as there are few labor protections in China for capitalism’s human victims, there are no animal welfare rules whatsoever.

But pointing the finger solely at China elides the fact that it’s Americans whose purchasing habits are being served by this cruelty. Angora sweaters may end up on store shelves in a few high-end retail outlets in Shanghai and Hong Kong, but for the most part, they’re headed to your local J. Crew store. Angora fabrics are being made for the luxury tastes of American consumers and the profits of American retailers.

That doesn’t just put the moral responsibility back on us – it also puts us in a position to demand change.

We can no more write new Chinese laws to curtail these abuses than we can enter Chinese factories and release suffering rabbits from their cages. But we can do one thing to make a difference, right this minute: Boycott angora.

Steve King’s Farm Bill Amendment Hurts Animals — and California Farmers

Steve King

This article was first published as an op-ed in The Hill.

Iowa Congressman Steve King is an interesting kind of conservative.

Last year, when a seemingly non-controversial amendment was attached to the 2012 Farm Bill making it a federal crime to attend or to bring a minor to an organized animal fighting event, King strenuously objected, lashing out at those who seek to “elevate animals above humans.” Later, in the face of criticism for his apparent support of criminal dogfighting and cockfighting rings, he tried to explain himself by arguing that enactment and enforcement of laws against such activities should be left to the states, not the federal government.

King’s backpedalled explanation may just sound like good old-fashioned conservative common sense. But this year, the congressman has a curiously different attitude about the federal government intruding on state prerogatives — specifically, the state of California’s prerogatives. When it comes to Congress trampling on the decision of California voters to reduce the suffering of animals instead of upon the attempts of criminals to profit from it, King, it would seem, is all about Big Government.

In May, King introduced an amendment to the 2013 Farm Bill that specifically seeks to neutralize California’s Proposition 2, which was passed by voters in 2008 by 63 percent to 37 percent. In case you’re unfamiliar with Prop 2, it’s the measure that “(r)equires that calves raised for veal, egg-laying hens and pregnant pigs be confined only in ways that allow these animals to lie down, stand up, fully extend their limbs and turn around freely.”

Two years after Prop 2′s passage, Governor Schwarzenegger signed a bill into law requiring that as of January 1, 2015, all eggs sold in California be produced under Prop 2′s standards, no matter where they originate. Such a law was necessary, the governor reasoned, to prevent out-of-state farmers — who, after Prop 2′s rule change goes into effect a year and a half from now, will be subject to lower legal standards of animal welfare and, consequently, enjoy lower production costs — from taking advantage of the compassion of California voters by undercutting California egg farmers with a flood of cheap, battery cage eggs.

The new rule was about basic fairness for California farmers: voters had chosen to establish minimal animal welfare standards for farmers operating within the state, and California lawmakers were helping to level the playing field to prevent egg farmers from being driven out of business by complying with the new law. “This bill is good for both California egg producers and animal welfare,” Schwarzenegger wrote in a statement accompanying his signature.

But where Californians see common sense and compassion, King claims to see constitutional peril — and constitutional redemption by way of his amendment. The “Protect Interstate Commerce Act,” which survived passage of the overall bill in the House this summer, makes it illegal for a state (such as California) to prohibit or restrict the sale of an agricultural product (such as eggs) produced in another state (such as Iowa) based upon its method of production (such as highly constrictive battery cages).

“Current California law and referendum unconstitutionally regulates dramatically impacts (sic) producers from all over the nation,” King wrote to the National Cattlemen’s Beef Association after his amendment was passed by the House Agriculture Committee. “…(PICA) will ensure the federal government is able to put a halt to this unconstitutional activity by states and other political subdivisions.”

Important-sounding words. But lurking behind King’s lofty rhetoric about government jurisdictions is a crass and self-serving interest. By overriding the 2010 law prohibiting the sale in California of out-of-state eggs produced under conditions that fall short of Prop 2′s standards, his amendment would create exactly the situation that state lawmakers and Governor Schwarzenegger sought to prevent: a flooding of the state’s consumer market with cheap, inhumanely produced eggs that put California producers at a major competitive disadvantage to out-of-state agribusiness operations, many of them based in King’s home state of Iowa.

In other words, the King Amendment is all about profits for Iowa Big Ag, at the tragic expense of hens, veal calves, sows, and California farmers. With huge corporate profits on the table, it appears that a politician like King isn’t going to let conservative principles about defending state autonomy from federal overreach stand in the way.

Photo: isafmedia, Creative Commons License

Is The Government Lying About How Much Of Your Metadata It’s Using?

NSA_homepage

This article was originally published in The Huffington Post.

On Sunday, former NSA Chief Michael Hayden repeated what has become a familiar Obama administration talking point: While the government may make a record of every single call every American makes, its analysts actually use almost none of that data.

“You’ve got this metadata,” Hayden said, arguing for a further expansion of government surveillance powers in the event of a future terrorist attack. “It’s now queried under very, very narrow circumstances.”

The claim also appears in a July 18 letter from the Department of Justice to a federal judge: “only a very small fraction of the records acquired under this program is ever reviewed by intelligence analysts.”

But just how does the government define a “small fraction”? The answer to that question remains among the most closely guarded secrets behind the shroud that still covers the NSA telephone metadata collection program revealed by Edward Snowden. In the wake of the revelation that the Director of National Intelligence James Clapper lied to Congress about that program, not everyone is prepared to take the government’s word at face value — and in a number of cases, privacy rights groups are testing the administration’s assertions in court.

“I think there’s no doubt that the government is doing some scanning of the phone records that includes all of them,” says Cindy Cohn, legal director for the Electronic Frontier Foundation, which has been in litigation against the NSA’s dragnet surveillance since 2008 and which is party to a recently-filed suit against the NSA. “No one seriously thinks that they are just piling up phone records in a computer somewhere and not doing any sort of searches at all on them until some later date.”

Cohn believes that administration officials are “playing another word game” by making a semantic distinction between reviews of metadata undertaken by human beings, which are conducted on the limited basis that the administration describes, and digital scans of phone records, which could be more broadly exercised, that is arbitrary from the point of view of privacy.

“It seems they are using the term ‘review’ and ‘used or reviewed in a query’ but we don’t know what that means,” Cohn says. “I suspect by ‘review’ they mean some sort of human review … (but) no one seriously thinks that a computer search — which can result in your prosecution or being subject to further review — isn’t just as violative of your privacy as a human search. In some ways it’s worse since computers can work much more efficiently and quickly — resulting in multiple ‘reviews’ of your phone records in an instant.”

Jameel Jaffer, Deputy Legal Director for the American Civil Liberties Union, shares Cohn’s suspicions about the true breadth of the NSA’s queries, as well as her dismissal of the constitutional significance of the cute distinction between human and non-human reviews that Cohn presumes the government is making.

“Just think about the implications of it,” he says. “If it were only the human analysis of information (and not the government’s collection of it) that triggered the Constitution, why couldn’t the government collect the content of all of our phone calls and emails on the theory that no human was examining it (for now)?”

The question of whether most phone records are merely warehoused or whether they are swept up in broad computer searches has serious implications for a raft of new lawsuits challenging the metadata collection program’s constitutionality. As the Justice Department’s July 18 letter suggests, the administration appears to be staking out the position that the suits against it lack legal standing to be heard in court because the plaintiffs cannot show that the surveillance programs subjected them to “irreparable harm” that is “actual and imminent,” which they would need to demonstrate to persuade the courts that they have standing to bring each case.

Under the Constitution, in order to show that one has “standing” to bring suit, a plaintiff needs to demonstrate that a law or policy has caused “actual and imminent” harm to himself, herself or themselves personally, not in the abstract. For instance, in order to contest a policy of racial profiling, it is not enough to argue that the policy is unfair to a group of people or detrimental to society generally; a plaintiff must show that his or her interests were specifically injured by the practice.

Under the government’s legal theory, the ACLU, which is the plaintiff in question in the July 18 letter, suffers no “actual and imminent” harm when its phone records are collected and stored in the NSA’s databanks. The case for harm, the government contends, only arises when those records are actively reviewed by an NSA analyst. Since only a “very small fraction” of records is ever subject to review, the argument goes, “it is no more than speculation that their metadata have been or ever will be among the very small percentage of the records in the database that are ever reviewed.” Such speculation falls far short of the standard for demonstrating actual and imminent harm, so the lawsuit must be dropped.

If the courts accept the government’s argument, then those who seek to challenge the surveillance programs will be caught in a nearly impossible conundrum: to establish standing to sue, they will need to show that their metadata was swept up in an NSA query, a task that requires access to state secrets. Unless the government were to take the unlikely step of granting the opposing counsel the necessary security clearances to acquire this evidence, the standard for achieving standing would be virtually impossible to meet.

The one scenario that the government has pointed to that would provide a party with standing is if that party is subject to a criminal prosecution based on evidence derived from NSA surveillance. In that case, the government has grudgingly conceded, the provenance of that evidence would need to be disclosed to the court and to the defense counsel if it were to be used in the prosecution’s case, thereby giving the defendant standing to file suit.

Even this scenario, however, puts control of the process largely in the government’s hands, as federal prosecutors are able to decide whether to press charges and whether to use the NSA-derived evidence, weighing the benefits of doing so against the risk of inviting a challenge to the surveillance programs.

As Reuters recently reported, in at least some cases the Drug Enforcement Administration is using the NSA’s data to start investigations — and then building a “parallel construction” of non-NSA evidence to present in court. If federal prosecutors can avoid using NSA-derived evidence in criminal prosecutions, and if their argument on standing is upheld by the courts, then the government can indefinitely forestall any possibility of a plaintiff meeting the “actual and imminent harm” standard. And if the standard for achieving standing is unattainable, then the surveillance programs are effectively immunized from Constitutional challenge.

If most of the collected phone records, on the other hand, are routinely subjected to digital review — as Cohn believes — then by the government’s own standards, standing for the pending lawsuits is within reach.

Even barring such a revelation, the government’s argument may be a weak one.

“It doesn’t strike me as a persuasive argument against standing,” says Steve Vladeck, a law professor at American University.

Both Cohn and Jaffer, meanwhile, say the government’s argument that collecting every American’s phone records doesn’t cause any harm fails the test of simple common sense.

“Your rights are violated,” Cohn says, “when the government gets access to your phone records — regardless of what they do with them afterwards.”

NSA Surveillance Needs More than Window Dressing Reform

NSA Phone Records Big Data Photo Gallery

This article was first published in The Huffington Post.

Yesterday, President Obama repeated what has become a familiar routine: after two months of bad press on a controversial issue, he made a grand gesture of conceding that his critics may have a point, even while largely holding to his increasingly untenable position, and announced a series of “reforms” that amount, at the end of the day, to window dressing. It was an even less persuasive version of his performance than his pretense of holding Wall Street accountable for the crimes that led to the economic meltdown.

Obama’s declared reforms of the massive and opaque government surveillance programs that have dramatically expanded on his watch are as follows:

  • Set up a toothless committee to make non-binding recommendations months in the future, once it’s safe to ignore them.
  • Hire a privacy officer in the NSA whom few in the agency will take seriously, possibly including the privacy officer him/herself.
  • Appoint a privacy advocate to the FISA Court, and pretend that he/she is a reasonable stand-in for a truly adversarial court system.

None of these measures will come close to dealing with the serious Constitutional issues at stake in the continued existence of the government’s surveillance regime. Short of scrapping the NSA and the FISA Court (FISC) altogether, nothing less than an about-face on the administration’s position on the public’s right to challenge the legal basis of the surveillance programs will even begin to bring government spying into line with the Constitution.

The Catch-22 of “Standing”

Over the last two months, the legal basis for the Obama administration’s massive telephony metadata gathering program has been challenged by a spate of lawsuits filed by plaintiffs ranging from the American Civil Liberties Union to a birther attorney in Florida.

For all of their differences, these lawsuits face a common set of tangled procedural obstacles that derive from the secrecy and inaccessibility of the FISA Court system. These obstacles are more than just hindrances to lawyers seeking to test the constitutionality of the government’s electronic surveillance regime. If they hold up in court, they could effectively put the surveillance programs beyond the reach of the Constitution.

If, contrary to all indications, the President is serious about securing the Constitutional basis of his telephony metadata collection program, he could begin by addressing the at-times Kafkaesque set of legal conundrums that surrounds the public’s right to access the regular court system in a case that involves highly classified evidence.

On July 18, in a letter to a federal judge, the Obama administration responded officially for the first time to one of the new crop of suits (ACLU et. al. v. Clapper) by questioning the plaintiffs’ legal standing to sue the government, given their inability to prove that their metadata was not just collected, but specifically reviewed by the National Security Agency:

Plaintiffs cannot meet this essential requirement, even assuming their metadata have been or will be collected, because it is no more than speculation that their metadata have been or ever will be among the very small percentage of the records in the database that are ever reviewed. …Indeed, the chances that their metadata will be used or reviewed in a query are so speculative that they lack Article III standing to seek the injunctive relief requested in their July 2 letter.

In the letter, the government disputes the ACLU’s contention that the “government’s dragnet acquisition of Plaintiffs’ telephone records” violates the law, arguing that the collection and warehousing of telephony metadata is legal and authorized by both Section 215 of the PATRIOT Act and by FISA court order.

It then goes on to challenge the plaintiffs’ legal right to enter into the lawsuit, arguing that the plaintiffs cannot demonstrate, as the law requires, that they were specifically injured by the government’s actions and thus have cause to seek redress. By itself, the administration argues, the collection of metadata does no immediate harm to the plaintiffs, since the overwhelming odds are that their phone numbers have never been tracked in a query, and merely sit, inert and unreviewed, in a massive database. In order for the plaintiffs to demonstrate that they were specifically harmed by the government’s surveillance program, the administration contends, they would have to show that their phone numbers were among the small subset of records actually used in a query by an NSA analyst. Since that evidence is classified, the plaintiffs cannot produce it. Therefore, under the government’s theory, they have no standing to sue.

If the court agrees with the government’s position, an obvious question arises: how cananyone achieve standing to challenge the surveillance programs’ constitutionality? If the standard for filing suit requires that plaintiffs demonstrate that their phone records were not merely collected and warehoused but actively reviewed in an investigation, and the history of whose records were reviewed is one of the government’s most closely guarded secrets, then there seems to be simply no way to meet the standard. And if the standard to challenge the surveillance programs is impossible to meet, then the programs reside, in effect, beyond the reach of the Constitution.

“The government is trying to move the goal posts — shifting the court’s inquiry from whether they are collecting the data to whether they are ‘reviewing’ it,” says Cindy Cohn, Legal Director for the Electronic Frontier Foundation, which has been in litigation against the NSA for dragnet surveillance since 2008 and which is party to one of the recently-filed lawsuits. “Your rights are violated when the government gets access to your phone records, regardless of what they do with them afterwards.”

In any case, Cohn does not believe that the government is merely warehousing most of the phone records it collects. “I think there’s no doubt that the government is doing some scanning of the phone records that includes all of them,” she says. “I suspect by ‘review’ they mean some sort of human review, but again, that’s not when the violation occurs. No one seriously thinks that a computer search — which can result in your prosecution or being subject to further review — isn’t just as violative of your privacy as a human search. And no one seriously thinks that they are just piling up phone records in a computer somewhere and not doing any sort of searches at all on them until some later date.”

“Is there anybody who has standing?”

Last October, as The New York Times recently reported, at a hearing before the Supreme Court in Clapper v. Amnesty International, a challenge to the 2008 FISA Amendments Act, the question on standing was put directly to the Obama administration’s top litigator by Justice Sonia Sotomayor. “Is there anybody who has standing?” Justice Sotomayor asked.

Solicitor General Donald Verrilli answered in the affirmative: When the government relies on evidence derived from FISA-warranted surveillance in a criminal prosecution, it must disclose to the court the source of that evidence, thereby granting the defendant standing to sue. However, as the Times reported, in practice, U.S. Attorneys have done exactly the opposite, refusing to disclose whether their evidence was derived from surveillance authorized by the 2008 law. By doing so, the Times observed, federal prosecutors “have immunized the surveillance program from challenges under the Fourth Amendment.”

In fact, according to a Reuters story this week, the Drug Enforcement Agency has gone even further than this, using NSA metadata in non-national security-related criminal investigations and then concealing the provenance of that intelligence, sometimes from the prosecutors themselves, by using “parallel construction” — essentially, faking the way that they discovered the intel to hide its true origin and make the investigations legally and constitutionally clean. The agency has an entire division set up specifically to launder intelligence. The ordinary criminal justice system is becoming polluted by the constitutional shortcomings of the FISA court system.

Déjà Vu All Over Again

Clapper v. Amnesty International was not the first case in which the Obama administration has argued a theory on standing that effectively immunizes government surveillance. Three years ago, a team of attorneys representing Al-Haramain Oregon, the American branch of an international Islamic charity, was faced with a procedural Catch-22. In 2004, the Bush Administration had designated the charity a terrorist organization, based on classified evidence. In the course of the designation proceedings, however, Al-Haramain’s attorneys had received a packet of materials from the Treasury Department that included, inadvertently, a top secret document that seems to have shown that the government’s evidence against Al-Haramain had been gathered from a wiretap on the organization and two of its lawyers which had not been authorized by a FISC court order.

The following year, The New York Times exposed the Bush Administration’s warrantless wiretapping program, and Al-Haramain sued the government, claiming that its constitutional rights had been violated. The government responded by arguing that Al-Haramain had no legal standing to bring suit, since the evidence to prove that it had been illegally surveilled — the details of the wiretap — was classified, and, in accordance with national security interests and the State Secrets Privilege, must be suppressed. In other words, according to the administration’s circular reasoning, the plaintiffs could not sue the government for maintaining an illegal program of secret warrantless wiretapping because to do so, they would have to rely on evidence from the wiretap, which was secret.

Swapping the wiretap for the NSA’s active review of the plaintiffs’ metadata, the same logic is at work in the government’s argument against the ACLU’s standing to sue today.

In the case of warrantless wiretapping, the courts ultimately rejected the government’s argument. In March 2010, a federal judge ruled against the Obama Administration, which had by then inherited the case from its predecessor, declaring Bush’s warrantless wiretapping program, which had been shut down three years prior, illegal.

As we now know, the courts’ verdict on the legality of warrantless wiretapping did little to persuade federal investigators and intelligence officers to rein in their surveillance practices to bring them into conformity with existing legal standards. Instead, by the time the court issued its final decision, the government had done the converse, transforming legal standards to conform to its surveillance practices. With the passage of the FISA Amendments Act of 2008, the FISC was authorized not only to grant legal protection to domestic spying through the issuance of surveillance warrants, but to make precedent-setting decisions on constitutional questions that radically expanded upon the surveillance capacity of intelligence agencies — including authorization of the routine collection of telephony metadata for potentially hundreds of millions of Americans. The government’s arguments in defense of those practices today is nearly identical to those that the court rejected three years ago — but now the Obama administration can invoke all-but-unchallengeable FISC orders as its legal cover.

“The governments is basically trying to reargue things that they have already lost, dressing them up in slightly different clothes,” says Cohn. “I suspect they will continue to do so since so far, they have reargued things that they have lost over and over again, as part of a bigger strategy to drag out the litigation. But that doesn’t mean they are correct.”

Only One Side of the Story

Achieving standing in the regular courts isn’t the only obstacle to testing the constitutionality of government surveillance. Just as intractable a problem for the metadata collection program’s challengers is the highly restrictive nature of the rules governing access to FISC proceedings. When a FISC judge issues an order requiring a company like Verizon to turn over its customers’ phone records, the only parties entitled to contest that order by requesting a rehearing before the full court are the government and the telecommunications company that was subject to that order. The customers whose metadata is to be collected are not allowed to request a rehearing.

The government, of course, has no interest in challenging court orders that it sought in the first place, while the telecommunications companies have either shown no interest thus far in contesting them, or have failed in their efforts to do so (since the court’s proceedings are secret, there is no way of knowing which). Neither party, in any case, clearly shares the privacy interests of the telecomm customers whose metadata has been collected by the government.

Recognizing this, four weeks ago, the Electronic Privacy Information Center filed an extraordinary motion with the Supreme Court requesting a “writ of mandamus.” A writ of mandamus is a directive from a higher to a lower court (or corporation, or individual) to take a particular course of action or refrain from taking a particular action. EPIC’s motion requests that the Supreme Court intervene outside of the normal appeals process to overturn a FISC court order. The FISC, EPIC argues, went beyond the scope of its statutory authority by compelling Verizon to turn over telephony metadata on millions of Americans. Since the FISC order is “outside the jurisdiction of federal district and circuit courts,” EPIC argues, this extraordinary measure represents the only option available to the public to seek redress.

To say that the motion is a long shot is an understatement at best. But the inaccessibility of the FISA Court to the public coupled with the potentially impossible standard to bring suit in the regular court system leaves Americans with nothing but long shots to choose from. Having any options at all, moreover, is at this point the best case scenario, which may not last for long. Should the long shot bids initiated by the ACLU, EPIC and other complainants fail, there will be no way at all to challenge FISA-sanctioned surveillance, or the growing body of secret jurisprudence that is quickly turning the FISC into “almost a parallel Supreme Court.” The stake the public has in avoiding that eventuality goes beyond privacy and surveillance: it is a matter of preventing the establishment of a growing arena of governance that is beyond the reach of the Constitution.

Criminalizing Compassion

Ag Gag map

This article was originally published in The Nation.

On February 8, a 25-year-old animal rescue worker named Amy Meyer and a colleague pulled into a parking lot across the street from the Dale T. Smith and Sons Meat Packing Company in Draper, Utah, a suburb south of Salt Lake City. They crossed the street and stepped onto a strip of public land on the roadside, stopping short of a barbed wire fence that demarcated the boundary of the property of the slaughterhouse.

Across a small field, the building housing the killing floor stood in plain sight. Through two large open doors facing the road they stood on, they could see cows being led onto the plant’s disassembly line. Outside the building, a forklift was pushing a live cow—possibly a sick, “downer” cow, which are illegal to slaughter. Despite the fact that she stood firmly on public property and was not an employee of the slaughterhouse, when Meyer took out her camera and began to film, she set herself up to become the agricultural industry’s first-ever “Ag Gag” criminal.

“Ag Gag” laws are a species of state-level legislation that has been vigorously pushed by lobbyists over the last several years to criminalize and suppress the exposure of inhumane practices in animal agricultural operations. In essence, the laws protect the industry by making whistleblowers into outlaws.

Ag Gag laws take aim at camera-wielding undercover whistleblowers, whose videos have provided some of the few unvarnished glimpses the public has seen of where their food comes from—and it’s not a pretty sight. Over the last half century, intensive, mechanized, indoor factory-style animal feeding operations have almost entirely supplanted the grazing pastures of traditional livestock farms. In processing plants, ever-increasing disassembly line speeds have increased the risks of injury to knife-wielding slaughterhouse workers, who tend to be poor, often undocumented migrants from Mexico and Central America, while compounding the risk of some animals being skinned and dismembered while still alive.

Undercover videos have exposed the ugly realities concealed behind the walls and locked gates of animal agriculture facilities and put them on the evening news. The footage is graphic; the impressions they leave are haunting and indelible. Images from past undercover investigations include unwanted male chicks on an egg farm being casually tossed into a grinder alive, workers swinging sick or runty piglets by their legs and smashing their heads on concrete, and cows and calves being beaten in the head with crowbars (the first two abuses are standard industry practice). “Once you see them, you can’t unsee them,” says Matt Rice, Director of Investigations for Mercy For Animals, who traces his own conversion to animal advocacy to undercover videos he watched over a decade ago.

Their impact on a political level can be just as powerful as on a personal one: in the last decade, videos shot by undercover investigators and broadcast on national TV news stations have contributed to the phasing-out of the use of immobilizing “gestation crates” for pregnant sows in the supply chains of several major restaurants and retailers and their outright ban in nine states; the passage of a ballot initiative outlawing the use of highly constrictive battery cages for egg-laying hens in California; the passage of a separate California law banning the force-feeding of ducks to produce foie gras; a ban on veal crates in Arizona and moves toward their elimination in Ohio; and the exposure of the routine slaughter and processing of sick cows for beef, which led to the largest meat recall in US history.

The agricultural industry’s response to this intractable public relations threat couldn’t be more straightforward: make it illegal.

The first generation of what would later be known as Ag Gag laws emerged in the early 1990s in response to a much different threat posed by underground activists with the Animal Liberation Front movement. In Kansas, Montana and North Dakota, state legislators made it a crime to take pictures or shoot video in an animal facility without the consent of the facility’s owner.

In 2002, the American Legislative Exchange Council—the conservative law-drafting organization behind Florida’s “Stand Your Ground” law and Arizona’s anti-immigrant SB1070—took the approach one step further. ALEC drafted a piece of “model legislation” for distribution to lobbyists and state lawmakers across the country in an effort to make Ag Gag into a national phenomenon. The model bill, called The Animal and Ecological Terrorism Act, proposed prohibiting activists from, among other things, “entering an animal or research facility to take pictures by photograph, video camera, or other means with the intent to commit criminal activities or defame the facility or its owner.” It also proposed the creation of a “terrorist registry” that would contain the names, addresses and photographs of those convicted under the proposed law.

In the last year and a half, at the behest of animal agriculture interests, ALEC’s model bill—minus the registry—has been taken up as a template and passed in various iterations in Iowa, Utah, Missouri, Arkansas and South Carolina.

“The animal agriculture industry has nothing to hide,” says Emily Meredith, Communications Director for the Animal Agriculture Alliance, an industry group that refers to organizations like the Humane Society as “extreme animal rights organizations.” “But there’s a difference between having nothing to hide and allowing activists—with a blatant agenda to put an end to the consumption of meat, milk and eggs—to gain access to family farms in illicit and fraudulent ways, take video, and then cut and run to later release that video under a big donate now button.”

Some versions of ALEC’s bill criminalize documenting abuses outright. Some make it a crime to lie about one’s associations with animal advocacy groups on job applications for farm employment. Others require those who document abuses to turn any evidence over to law enforcement within 24-48 hours of recording it—a clever way of preventing activists from engaging in the weeks- or months-long investigations required to demonstrate systemic abuses.

Though the rules target animal advocates, the potential ramifications for civil liberties are broader. Ag Gag rules can as easily be used to inhibit agricultural employees from exposing unsafe or illegal working conditions as it can to silence animal advocates. And other industries are likely to lobby for similar protections against their own whistleblowers-in-the-making. Already, North Carolina’s bill makes the falsification of employment application information for the purposes of whistle blowing a crime in any industry.

“Union members know firsthand how important it is for these workers to be able to document unsafe working conditions and other threats to workplace and food safety,” says Mark Lauritsen, International Vice President and Director of the Packing Division for the United Food and Commercial Workers union, which represents many slaughterhouse employees. ”We are opposed to any government intervention that seeks to intimidate workers and investigators from shining a spotlight on the true conditions of America’s food manufacturing facilities.”

“The laws are clearly directed at animal rights activists who threaten the profitability of factory farms and slaughterhouses, but their reach doesn’t stop there,” says Rachel Meeropol, Senior Staff Attorney for the Center for Constitutional Rights. For example, the North Carolina bill, she notes, “would criminalize not only animal rights investigations, but also an undercover journalist who applies for a job at a suspect plant in order to expose human trafficking or work safety violations.”

As its public profile has increased, public opposition to Ag Gag legislation has grown, and the agricultural industry’s path to enacting Ag Gag rules throughout the country has become more daunting. A February 2012 national poll commissioned by the ASPCA showed public opposition to the criminalization of animal abuse whistleblowers standing at almost two in three Americans. Ag Gag bills have been rejected or failed to gain traction in a raft of states in every region of the country from California to Wyoming to Tennessee. The term “overreach” comes to mind.

Amy Meyer’s experience has become something of a symbol of that overreach, and an indicator of the limits of the agricultural industry’s ability to suppress free speech. A few minutes after Meyer hit “record” on her camera, a truck pulled up in front of her. Meyer’s colleague hastily departed. Bret Smith, the facility’s operator and brother of Darrell Smith, the slaughterhouse owner who is also Draper’s mayor, leaned over from the driver’s seat, filming her with a phone camera as she filmed him back. At first, he accused Meyer of trespassing, though she was plainly standing on the outside of the plant’s fence. Then he shifted tactics. “You cannot videotape my property from public property,” he said (this is in fact not what the law says). “If you read the rights here and the laws of Utah, you can’t film an agricultural property without my consent,” he continued. Smith called the police.

Within just a few minutes, seven squad cars pulled up. “The officers would all go to Brett Smith first and shake his hand,” Meyer recounts. “And then they would come over to me and treat me like a criminal.”

An officer questioned Meyer about her identity and what she was doing there, even after affirming that she was not being detained and after she told him she did not wish to answer his questions. After some arguing over the legal basis for his questioning, according to Meyer, the officer claimed that a worker at the slaughterhouse had reported witnessing her and her colleague crossing over the fence, trespassing onto private property—a description at odds with the footage she shot that day. The officer told her she was free to leave, but that he would “screen charges of criminal trespass” on her.

Eleven days later, prosecutors filed charges against her for “agricultural operation interference,” a Class B misdemeanor that carries a maximum six-month jail term.

At the end of April, Will Potter, a journalist who tracks government suppression of environmental and animal rights activists, broke the story of “the first prosecution in the country” under an Ag Gag law. The story was picked up by local and national media outlets, bringing just the kind of public attention to the agricultural industry that ALEC’s model legislation was designed to prevent. Within 24 hours, the charges were dropped.

Without the media attention the story garnered, Meyer may have been forced to defend herself in court. Had prosecutors pressed the case, the video footage, which is clearly shot from outside of the property line, may well have exonerated her. But future cases may have different, less favorable conditions.

On July 22, Meyer, Potter and several other groups and individuals filed a lawsuit challenging the constitutionality of Utah’s Ag Gag law, which Meyer calls “a blatant violation of free speech and freedom of the press.”

In implementing Ag Gag laws, the agricultural industry has set a highly restrictive example that other industries may soon follow. With the precedent already set, lawmakers will see little reason to extend favorable treatment to one sector and not to every other. By then, prosecuting whistleblowers on behalf of corporations will be business as usual.

NSA Surveillance is Legal, and That’s the Worst Thing About It

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Out of the three main arguments in defense of sweeping NSA surveillance — it’s legal; it keeps us safe; it’s not that intrusive — the lamest and most tone-deaf by far is the first. That’s not because it’s untrue; it’s because it is true.

The President and his allies argue that the NSA’s telephone metadata gathering is a legitimate exercise of state power because all three branches of government have signed off on it. Some pundits are buying that line, some slavishly so (not to be outdone in its contempt for public accountability, the Wall Street Journal’s editorial board complains of too much government oversight and advises taking the judiciary out of it).

There’s obviously no shortage of controversy over that claim. The degree to which lawmakers outside of a select circle of members of the House and Senate intelligence committees were afforded a meaningful opportunity to be read into the NSA programs is a matter of fierce dispute. And the FISA courts, with their secret, non-adversarial, government-only proceedings, have always existed in a murky and Kafkaesque purgatory of constitutionality.

But even if it is true that legislators were widely and duly briefed on the surveillance programs, that shouldn’t allay the concerns people have over the growing imbalance in power and prerogative between the government and civil society — it’s reason for even further alarm.

One of the most disturbing realities that the surveillance revelations have brought into relief is that in its drive to safeguard national security, the Obama Administration has concocted policies and tactics that draw a sharp line of division between the state and the general public that tend to cast the latter in the role of potential conspirator. The problem isn’t the government’s assumption that there are those among us who may wittingly or unwittingly enable terrorists (or be terrorists ourselves), which is both credible and impossible to dispute. It’s that in the Administration’s view, our very understanding of what the government is doing and how it does it is deemed a priori an unacceptable security risk. It’s not only the secrecy around the NSA’s databanks of phone records: it’s the AP spying, the Stasi-like investigation of James Rosen, the merciless pursuit of leakers and whistleblowers — it’s the Administration’s entire attitude toward public scrutiny of its conduct.

Government mistrust of the public is nothing new, of course. It’s been a conspicuous feature of our political landscape since 9/11, and it was even more pronounced during certain particularly terrible periods of the Cold War. That’s also part of the disturbing — if not, upon reflection, surprising — reality that the NSA story has revealed: that President Obama’s security policies are not and have never been a break from the Bush era, but merely a continuation (and digital upgrade) of the evolution of the national security state that began with the Second World War and has continued to the present, with a brief lull between the collapse of the Berlin Wall and 9/11.

In this light, the possibility that Congress went along with the judiciary (if you can call the FISA court that) in approving the NSA surveillance regime is in no way reassuring. To the contrary, it demonstrates that when it comes to national security issues, there are no longer any meaningful checks and balances within the formal structure of government. By all appearances, on security matters, in the absence of a political crisis, members of Congress, Administration personnel and FISA court judges see themselves as part of the same special team — and not just Team America along with the rest of us. They’re the security-cleared elect, with their own sets of keys and handshakes and secret passwords, who know things we don’t and have a grave responsibility to protect us by keeping each others’ secrets safe from our prying eyes — as they’ve apparently been doing for the past seven years. We just need to learn to trust them.

Whether your experience of the last dozen years has inclined you to trust them or not might help explain your reaction to the Snowden leak. As Josh Marshall explains:

Here is I think the essential difference and where it comes back to what I referred to before – a basic difference in one’s idea about the state and the larger political community. If you see the state as essentially malevolent or a bad actor then really anything you can do to put a stick in its spokes is a good thing. Same if you think the conduct of US foreign policy is fundamentally a bad thing. Then opening up its books for the world to see is a good thing simply because it exposes it or damages it. It forces change on any number of levels.

From that perspective, there’s no really no balancing to be done. All disclosure is good. Either from the perspective of transparency in principle or upending something you believe must be radically changed.

On the other hand, if you basically identify with the country and the state, then indiscriminate leaks like this are purely destructive. They’re attacks on something you fundamentally believe in, identify with, think is working on your behalf.

Marshall is squarely situated in the latter camp. Marshall started off during the Bush-Gore recount fight as an exceptionally smart, rabble-rousing liberal blogger. His remarkable professional success in the years since as both an investigative journalist and a political pundit has been rewarded with entrée into distinguished circles of the Washington DC political establishment. It’s not hard to see why he so readily identifies with the state (and its military) and regards crimes against it as a crimes against his own “political community”:

At the end of the day, for all its faults, the US military is the armed force of a political community I identify with and a government I support. I’m not a bystander to it. I’m implicated in what it does and I feel I have a responsibility and a right to a say, albeit just a minuscule one, in what it does. I think a military force requires a substantial amount of secrecy to operate in any reasonable way.

It’s probably not going too far out on a limb to imagine that most legislators, federal judges, administration officials and members of the DC press corps share Marshall’s spirit of solidarity with the state (David Simon is a little tougher to explain). It’s easy for these people to look at the NSA surveillance story and fail to discern what many outsiders do: a government rushing to consolidate state power, arrogant in its authority and detached from the population it purports to defend. To those who regard themselves as kin to the political class, it’s tautological that because it was legal, massive surveillance is a legitimate state prerogative. To those of us who do not share that kinship, the fact that it’s legal is precisely what makes it so dangerous.

Photo: Creative Commons, Ciprian Popescu, getButterfly

An Interview on NSA Surveillance With Former State Department Official Matthew Hoh

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Matthew Hoh is a former Marine who served six years in Iraq before being stationed in Afghanistan as a high-ranking foreign service officer. In 2009, Hoh resigned from the State Department in protest over the U.S.’ misguided occupation of Afghanistan.
 
Leighton Woodhouse interviewed Hoh for the Huffington Post to get his perspective on the NSA’s sweeping surveillance of both foreigners and U.S. citizens.

Reactions to the NSA surveillance revelations have ranged from phrases like “beyond Orwellian”  to ones like “making a mountain out of a digital molehill”. Given your experience and prior government security clearance, how surprised were you by the scope of the digital and telephone metadata surveillance of foreigners and U.S. citizens by the NSA, and how big of a deal do you think this news is?

I’m not very surprised, I had heard about such abilities from friends and also I was aware of the data center the NSA is constructing in Utah. I think that there is much more to come about this. I believe certainly credit card and banking information is being captured and tracked, as well as any travel information (flights, toll booths, train tickets, etc). Also, I don’t believe the phone record seizure ends with Verizon, I’m sure all the carriers are involved. Pretty much any electronic communication or transaction you make I think can be reasonably assumed to be captured and/or tracked by the NSA. I am surprised however at the blanket capture of data; I assumed they were looking for keywords or established patterns, not treating every American citizen as a potential criminal, and I am surprised that it has been going on for seven years (I think that is what I read).

Why this is such a big deal to me is, of course, the seemingly obvious violation of the 4th Amendment. I just can’t fathom how this can be constitutional. What is also of tremendous concern, and I think this is something that both you and I have known for some time, but this is just the most recent and evident example of the crisis, is the seemingly complete capitulation of the legislative and judicial branches to the authority of the executive branch under the pretense of national security.

From all accounts, the FISA court is a rubber stamp; I just don’t see any counter argument to that description or evidence to the contrary. Additionally, that the Administration has been able to keep any challenges, and not just this but many other issues related to national security, effectively out of the courts is extremely troubling and is a great worry for me on the overall health of our system of checks and balances.

Oversight from Congress is more or less meaningless and has basically been abdicated. The congressional committees charged with oversight have only a handful of cleared staff and they are only shown the information that the intelligence services provide directly to them. So, even if there was a desire or interest in either the House or Senate to perform oversight it just simply is not possible. The numbers of cleared staff in the Congress, including the members, and not including assigned members of DOD or the intelligence community, is below 1,000. Compare that to the 1 million+ members of the executive branch who have top secret clearances and the multiple millions who hold secret clearances and the image is striking. Plus, DOD and the intelligence community provide the information they want to provide to Congress, so independent and capable oversight just simply isn’t possible.

With regards to the comments about this being symbolic of an Orwellian or totalitarian state/society, I think what we are seeing is the result of a $1 trillion a year national security establishment. Just like we shouldn’t be surprised we have 15,000 murders a year in this country when we have 300 million guns, we shouldn’t be surprised that a government establishment that is not being held accountable or in check by any other institution, that is Byzantine in size, structure and purpose, and that receives 25% of all government funding (and growing if the majority in the House have their way) is overreaching by conducting endless wars overseas and infringing on civil liberties at home.

It’s been reported that PRISM gathers “audio and video chats, photographs, e-mails, documents, and connection logs.” You suspect that credit card transactions, banking information and travel arrangements are being monitored as part of PRISM as well? Do you believe that that information is being gathered for U.S. citizens, and not just foreigners, as the Obama administration claims PRISM is designed to zero in on?

I don’t know if it is part of PRISM or not, as I am not well read up enough on what PRISM completely encompasses. I have no reason to believe it is not being captured, in fact it would be poor tradecraft and incomplete work on the NSA’s part if that type of information wasn’t being captured. You get a much fuller picture if you capture that data too.

Yes, I think U.S. citizens are being gathered on.

The people involved in these programs, the decision makers, are of a few stripes: Some believe that their mission to provide security trumps civil liberties. In their minds they are: the dog protecting the sheep from the wolf, the guardians on the wall, good men not willing to stand by and let evil men prosper, or any other host of tired, silly and banal self-lionizations that people inside the Beltway like to assign to their email signature blocks or put on placards on their desks. The others are loyal and hold their oaths to the dollar and to their cut of the $1 trillion in national security spending that has transformed Washington DC into the wealthiest area in the country since 9/11. Then there are some who are trying to do the right thing and believe in an appropriate balance and need for national security, but are overwhelmed by the institutional inertia of the massive national security system and the fervor/greed of their peers, while others are just men and women, doing a job and bound to that job by the golden handcuffs of family, mortgages, student loans, etc.

I don’t know if you read David Simon’s provocative blog post, which argued that the government analyzing telephone “raw data” prior to acquiring court orders to actually listen in on calls is nothing new; it’s how law enforcement has been going after organized crime rings (such as drug dealers) for decades. As you point out, there’s probably a pretty huge difference between the ratio of cops to judges versus the ratio of security-cleared executive branch members to security-cleared Congressional staffers that has a big impact on how meaningful “oversight” is in one case versus the other. Do you think Simon is being too blasé about the threat to our privacy? Does his analogy have any merit?

I disagree with him, for a variety of reasons, including the scope and scale of this sweep and the very large difference between using public pay phones in the ’80s and modern communication today using private and personal phones and computers, particularly in the expectation of privacy. Most importantly, I didn’t see him reference case law, he just uses an unsubstantiated anecdote. I am uncertain if this type of collection of raw data by the Baltimore police over 30 years ago (and again very different in its methods, purposes and contents from modern communications) was a one time use, was limited to Baltimore and that time period, or is established and in continuance across the nation. If there was a court case that established this practice Simon should cite it or refer to the conduct of this practice outside of Baltimore or in the last 30 years. Without such evidence I am unconvinced of the merits of his argument.

The 4th amendment requires probable cause, which you can make a case for in collecting data from specific public pay phones in certain areas of Baltimore, but the same case for probable cause cannot be made for collecting the communications data of every American.

Additionally, he references 9/11 in the same vein and manner the Munich Agreement was referenced from 1945 until 2001, as a way to shame, chastise and shout down anyone making an argument against war (or in this case violation of the 4th Amendment). There is no evidence the NSA collection of communications has been effective in the last seven years (of course the government and its defenders will say that there is such evidence, but it is classified and that the public will just have to trust the government).

I’m actually quite surprised that Simon isn’t making the case for another core theme in “The Wire” in order to go after terror groups, that of using good old-fashioned police work. Such law enforcement type detective work is what led to the most high profile and successful aspects of the dismantling of al-Qaeda after they fled Afghanistan in late 2001/early 2002, in particular, Khalid Sheik Muhammad’s capture (done in conjunction with the Pakistanis before we completely destroyed our relationship with them) and, ten years after the fact, Osama bin Laden (even though SEALs were used to kill him, the effort up to that point was law enforcement-like and you can view the SEALs as simply a very well-equipped SWAT team. By the way my preference would have been for bin Laden’s capture).

I remember you remarking once that al-Qaeda isn’t in Quetta anymore, they’re on the internet. The point you were making was that boots on the ground in Afghanistan weren’t going to stop terrorism. Presumably, intelligence services like the NSA would agree with the first part at least, about terrorist networks having shifted to a significant extent online. If massive digital surveillance is the wrong answer, what are other ways the government can more effectively pursue terrorists without starting wars and violating civil liberties in this new context of a hyper-digital world?

They are on the internet, but it’s a passive presence. I tend to use the term “ideological cloud” to describe how it works. There is an online presence, made up of forums, videos, testominals, writings, etc. that is used to passively recruit and instruct. If you look at the attacks since 9/11, the majority have been conducted by single individuals or small groups (Madrid, London, Fort Hood, Boston) that are operating independently or with little guidance and that plan, prepare and conduct the attacks in their own local areas. There has been some direct and indirect contact between individuals in the West and al-Qaeda leaders in Muslim countries, but I don’t believe such contact to be necessary or to be the model on which terror groups have evolved to operate since 9/11.

The first thing we need to do is to properly understand the scope and the nature of the threat. The majority of al-Qaeda operatives are as described above and tend to be men in their 20s and 30s, well educated, urban, from middle class or upper class backgrounds, and technologically savvy. The actual size of al-Qaeda and its associated groups is quite small, numbering in the high hundreds or low thousands, around the world. There are quite a number of larger insurgent groups that al-Qaeda has aligned with, but those groups, such as the Afghan Taliban, have memberships and constituencies that are local in nature and not involved or interested in conducting worldwide operations. So several hundred or a few thousand young men in cities around the world, out of a worldwide population of 1.6 billion Muslims — that is who we are looking for. On top of that, al-Qaeda and other groups have only succeeded in killing 37 Americans since 9/11. That small number is certainly due to certain counter-terrorism efforts, I’m not going to argue against that, but I believe the larger reason is that al-Qaeda and other groups are simply not that capable. They used their A-Team on 9/11 Peter Bergen’s and others’ reports constituted nearly 10% of the organization at the time) and they hit a home run. Since then they have had a few successes, but certainly nothing that is an existential threat to the U.S. or the West, certainly not a threat large enough or disconcerting enough to invalidate parts of our Constitution (if we didn’t need to tear up our Constitution when facing the Soviet Union and its 25,000 nuclear weapons, I see no need to do so against al-Qaeda.)

The second thing is to stop lending credence or validating the propaganda claims of al-Qaeda and other terror groups. In 2005, while on the Iraq Desk at the State Department, I recall reading the summaries of interrogations of non-Iraqi fighters we had captured in Iraq (the actual number of non-Iraqi fighters was quite small, in the few hundreds). The overwhelming reason for their travel to Iraq to fight the Americans were the invasion and occupation of Iraq, the photos from Abu Ghraib and the stories from Guantanamo (the reason for the Iraqi fighters fighting us was quite simple: we were there). Al-Qaeda’s message to its recruits is not one of establishing worldwide Muslim rule or of gaining virgins in Paradise, but rather it is a defensive message, an exhortation to defend Muslim lands, culture and people from Western invasion and occupation, and, increasingly, revenge for American attacks. The greatest recruitment event for al-Qaeda was not 9/11, but rather the invasion of Iraq and subsequently, the escalation of the Afghan War and the world-wide, too often indiscriminate, targeted killing campaign (additionally, President Bush calling our actions in the Muslim world a Crusade may be one of the greatest foreign policy mis-pronouncements ever). So we need to stop validating and proving the terror groups’ propaganda and recruitment messages.

Utilizing a law enforcement approach to ferreting out the very small number of actual al-Qaeda members worldwide is what should be done. Our greatest successes against al-Qaeda leadership, after 9/11, came in law enforcement style operations, that utilized good detective work (done by both FBI and CIA) and relied extensively on cooperation and relationships with other nations, in particular Pakistan. We’ve thoroughly destroyed our relationship with Pakistan and in other countries, like in Yemen with President Ali Abdullah Saleh, we threw our total support behind dictators (similar to what we did in the Cold War, backing any dictator and his human rights abuses, as long as they were anti-Communist) that served to further aggrieve the local population and forcing them to turn to al-Qaeda or other extreme groups and accept support.

Massive communication dragnets, as Ed Snowden exposed, are simply not necessary, and worse they violate our civil liberties. It is important to remember that the intelligence to stop the 9/11 attacks existed and was in American possession, however, it just wasn’t pieced together, primarily due to competing bureaucratic interests within the U.S. government. More importantly, while al-Qaeda and other terror groups are a real threat and a danger, I’m not downplaying that, they are not an existential threat. Insanely, as if it is out of some over-the-top satirical novel or movie, we’ve seen the existential threat come to be within and from our own government institutions, in both Republican and Democratic administrations, in the form of not just a willingness to violate the Constitution, but actual sustained violations of it, all affirmed by a toothless and compliant legislative branch and a rubber-stamp quasi-judiciary.

This reminds me quite a bit of the conversations we’ve had with Robert Pape, who has shown empirically that the biggest cause of terrorist attacks worldwide is foreign occupation. I also heard Bob Scheer make a point similar to yours on a radio show last week, arguing that every government points to security threats to justify consolidating power, that the U.S. is far from unique in facing the probability of terrorist attacks, but that in spite of those very real threats, the United States, with something like half the world’s combined firepower, remains perhaps the most materially secure nation in human history. Is the terrorist threat overstated, and if it is, are policymakers overreacting in a sort of collective hysteria, or is it something more insidious — a convenient narrative to bolster the architecture of social control?

I can’t think of a better term than “convenient narrative”.

There are real threats out there and real dangers. There are people out there that want to blow up airplanes or get ahold of nuclear weapons, but it is a pretty small group and I think it is a factor of a life, a risk that is acceptable and one that is manageable. I think the last decade has been one terrible American mistake after another overseas, and what concerns me greatly is that our actions are perpetuating the terrorism problem. Our actions are giving credence to terrorist propaganda and recruitment, and, our killing of people throughout the world, many of whose identities we do not know, is setting the United States up for revenge attacks that may last longer than a generation.

But fear, war and patriotism are good for politics, and so it is in our political leaders best self interest to wave the bloody flag and be tough against our enemies, even if those enemies are now of our making. Of course, funding a massive trillion dollar a year national security establishment creates a leviathan that exists for its own purposes.

You know from your own experience what it means to step away from your colleagues, your professional community, the institutions that have shaped your career and to blow the whistle on very powerful actors whose actions you believe to be reckless and wrong. Can you describe what you imagine Edward Snowden might be experiencing right now, and over the last week?

Wow. I can’t even begin to compare my situation to Snowden’s. I didn’t face legal prosecution and I never broke any laws. What he did is incredibly brave, while what I did, in comparison, is more akin to being one of the first rats off a sinking ship.

I didn’t face the very real possibility that I wouldn’t see home again and the chance I’d never live with my girlfriend or family as he now does. That must be incredibly difficult and terribly scary. The fear his family and girlfriend must be going through right now must be overwhelming too and I’ve been reminded by others to keep them in my thoughts too.

He’s given most of his life to institutions that were supposed to be supporting and defending values he had been taught were the foundation of his country and he believed so much in his country that he dedicated his life to his country’s service. There must be a hollowness in him to see those institutions betray those values and his country, and he must be in possession of a sadness caused from having to do what he did.

I imagine he felt there was no other way and I hope his conscience is clear even though he must be physically sick with fear and apprehension.

I also hope he knows that there are a great many Americans, including a lot of veterans, who are very proud of him and ready to support him however we can.

Do you consider Snowden a hero for what he’s done?

Based on what I know, yes, I do. He has stood up to our government, against very powerful people and institutions; knowingly breaking laws, facing jail time, character assassination, financial ruin and voluntarily sacrificed ties with his family, his friends and his girlfriend; and he did this in order to let the American public know their government was treating every one of its citizens like criminals. I’m not sure any other word than hero is fitting.

Photo: John Poole/NPR

The Surveillance State That We Built

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Roughly speaking, the contours of the debate over the Obama administration’s massive digital surveillance of both foreigners and U.S. citizens have taken this shape:

Obama’s critics charge the President with rank hypocrisy at best, and at worst, a fundamental betrayal of his espoused values that has moved the Republic one step closer to Big Brother.

Obama’s defenders claim that the whole affair is much hyperventilating about nothing. The program is legal, it has been going on for years with the full knowledge and support of all three branches of government, and it represents merely the rational and proactive approach of a vigilant administration using all the resources at its disposal in a high-tech world to stop terrorist acts before they occur.

Though the controversy has confounded and blurred the partisan divide, both sets of arguments seem like little more than rehashed talking points from the Bush era, with little to say about how things have changed in the last decade.

It’s hard to deny the flagrant hypocrisy of the President’s actions. In 2007, Senator Obama inveighed against the Bush administration’s “false choice between the liberties we cherish and the security we demand.” That wasn’t just an off-hand remark; it was a major theme of his presidential campaign. Then last week, President Obama declared that “you can’t have 100 percent security and then also have 100 percent privacy and zero inconvenience. You know, we’re going to have to make some choices as a society.”

That’s about as stark as flip-flops get. On the other hand, the exposure of a politician as a hypocrite isn’t exactly breaking news.

The more meaningful and vexing question dividing critics and defenders is this: given the extant technology to track and analyze phone and digital communications in the aggregate in a manner that might substantially help law enforcement map out terrorist conspiracies, should the administration have refused to avail itself of this powerful resource in deference to its respect for privacy and civil rights? Should it have risked civilian lives to better preserve American values?

Reasonable people can — and clearly do — differ on the answer to that question. The President has declared the need to “strike a balance” between the two competing objectives and argues that his approach, which includes judicial review and stops short of monitoring the content of phone calls (we know less of what PRISM’s online surveillance consists of), carefully positions the fulcrum at the correct balancing point. His critics argue that the President’s approach is grotesquely off balance, and that the legislative and judicial oversight mechanisms built into the programs’ architecture is really just the legalization of George W. Bush’s unconstitutional national security and surveillance state. Moreover, limiting the scope of the intelligence gathering to “just” metadata is a lot more intrusive than it sounds.

At the end of the day, though, it’s hard to imagine any president making a much different call than the one Obama has made. As long as it’s permitted by the Constitution (or, what amounts to the same thing, is deemed constitutional by the Office of Legal Counsel), the reality is that any and every administration would and will avail itself of every power it has to pursue its enemies, foreign and domestic. To imagine that a president would willfully prohibit his or her security apparatus from using every tool possible to hunt down terrorists out of adherence to an abstract principle, whether it’s a liberal respecting civil rights or a conservative aspiring to limited government powers, is naive bordering on an Aaron Sorkin screenplay. When it comes to surveillance (and enforcement, and
detention, and warmaking), what’s now being called “Bush’s fourth term” will inevitably be extended to Bush’s fifth and sixth terms in the next presidency.

The more far-reaching question in the debate on privacy is not whether Obama should or should not have made the decisions he did, but what social and historical conditions are making it possible for such massive surveillance programs to be constructed in the first place? This isn’t just a question of policy or politics; it’s a story of technology.

The fact is that we’ve been living in a surveillance society for years, and everybody knows it. Indeed, we’re all complicit in it. Everything we do online is being monitored by someone, usually for benign purposes, such as selling us a new sports bra or luxury automobile. But it takes little imagination to conceive of the malignant purposes such a vast digital architecture could be put to. No less than Google’s CEO, Eric Schmidt, has warned that “everything a regime would need to build an incredibly intimidating digital police state—including software that facilitates data mining and real-time monitoring of citizens—is commercially available right now.”

Is it such a surprise that the United States government is leveraging whatever parts it can of that gargantuan information apparatus to catch terrorists? They’d be reckless not to. The 9/11 hijackers may have carried off their attacks with box cutters, but today, Al Qaeda exists primarily online. To ignore the motherlode of digital intelligence stored in Silicon Valley servers and phone company databases would be like fighting a modern guerrilla army with a cavalry armed with muskets. That’s why the NSA started pushing the government to “rethink” the Fourth Amendment in the context of the digital age all the way back in 2001. The NSA, the agency’s memo creepily declared, “must live on the network.”

To date, if the administration is to be believed, U.S. citizens have not been subject to online surveillance and data mining by the government. Foreigners have. If that’s in fact the case, will it remain so? Given the NSA’s aspirations, the real and perceived exigencies of national security, the evidently pro forma character of the oversight of the two other branches of government over the executive’s expanded surveillance portfolio thus far, the establishment of telephone metadata surveillance as a constitutional baseline, and the simple existence of the technical capability to extend such monitoring to domestic terrain, it takes a certain  amount of optimism to expect it, especially in the aftermath of another major terrorist attack. If a single terrorist cell were to emerge that was composed of American-born citizens and carried out an attack in an American city, how long would it take for PRISM to be extended to U.S. soil? My guess is that Congress would be absolutely clamoring for it.

These are the wages we pay for our existence in a digital world. To a small minority of Americans, the risks entailed by the perpetual erosion of private space and funneling of our digital data to private corporations is an alarming reality of the modern age that has serious and disturbing implications for the future of our society. For most of us, it’s just another piece of bad news to shrug off, like politicians being owned by corporations and the possibility that cell phones might cause brain cancer. There’s nothing we can do about it, and there’s a pretty big upside: the ease and convenience of life in the internet age.

The alarm surrounding last week’s revelation of the astounding scope of government surveillance was the sudden collective recognition that the risks of living in a world in which practically our every activity is logged in a digital archive somewhere are graver than just the disturbing knowledge that corporations know intimate things about our personal lives. The data that the government accumulates for legitimate law enforcement and national security purposes today could easily become the not-so-secret files of a 21st century J. Edgar Hoover or COINTELPRO tomorrow. If history teaches us anything, it’s that where there resides the possibility of government abuse of power, there will eventually be abuse of power, and the greater the power, the greater the abuse.

The power — and the potential for abuse — that the Obama administration is amassing to the government is monstrous. It isn’t, however, being created extrinsically and imposed upon us from above. It is merely harvested and organized out of the vast, dormant reservoir of power we have forfeited by relinquishing our claims to our personal data in exchange for the enormous benefits of the digital age. Today it’s our phone records, tomorrow, perhaps, our emails and browser histories. Whether the rewards are worth the risk we’ll learn sometime in the near or distant future.

As is often the case, the moment is captured best by an Onion headline: CIA’s ‘Facebook’ Program Dramatically Cut Agency’s Costs. It’s in the gap between the reality and the parody that the point is clear: the government doesn’t need to erect a massive apparatus of social control, because we’ve already happily done so ourselves. All that remains is for the President to take its helm, and for us to hope for the best.

Fwd.us: Another Failed Silicon Valley Experiment in Technocratic Social Change

Mark_Zuckerberg_portrait_Design_trust

Fwd.us, Mark Zuckerberg’s widely reviled, rapidly dissolving Washington DC lobby group, heralds itself as the bringer of “different and innovative tactics” to the usual Beltway brand of back room politicking. As has become abundantly clear over the past few weeks, the reality of Fwd.us is anything but that. Zuckerberg’s DC outfit has not only failed to bring anything new to its approach to the pay-to-play, back-scratching culture of Congress, but has in fact made the most cynical kind of Machiavellian horse trading into its signature style. As Branch.com CEO Josh Miller has noted, it’s a style identical to that of the pharmaceutical and gun lobbies.

How did so many smart and powerful people so quickly and thoroughly screw up such a simple and straightforward task? As Fwd.us never tires of pointing out, its founders and contributors are the A-list set of Silicon Valley luminaries: people like Bill Gates, Marissa Mayer, Sean Parker, and, before he withdrew in protest, Elon Musk. The immediate legislative objective of the organization, by the standards of the political kingdom whose castle it aimed to storm, isn’t exactly world historical. Fwd.us is committed to spending lots of tech cash to help pass bipartisan immigration reform, an issue that’s already at the very front of the President’s legislative agenda and one for which both parties are under extraordinary popular pressure to strike a compromise. What’s more, Fwd.us’ core constituency in Silicon Valley is already united in consensus behind the group’s position. After jumping into the fray at the eleventh hour, all Fwd.us had to do was to keep up the appearance of being a formidable player in negotiations for long enough for a bill to be passed, and then bow for the unearned applause. As one unimpressed tech lobbyist told The New Republic:

“They’re taking an issue where a win was already in sight, and basically they were going to try to get credit. There seemed to be almost a hubris. ‘All the people who’d been lobbying on this for years, they’re incompetent, it’s only when we, Zuckerberg’s group, gets involved in it, that we can turn the tide.’”

Now, barely a month after its first birthday, a Google News search for “fwd.us” serves up page after page of stories about the backlash the group brought upon itself from environmentalists, progressive organizations and its own erstwhile tech industry boosters for its strategy of running ads applauding regressive social and environmental positions by senators whose votes Fwd.us is trying to buy. Not a sentence in any of them speaks to any meaningful contribution the group has made to the overall reform effort. For all the press it has garnered, Fwd.us’ own “In the News” web page includes only one article dated after the group’s launch — and that article doesn’t even mention Fwd.us.

Fwd.us’ spectacular failure has much to do with the hubris of its founders, but it also has something to do with the myopically technocratic culture of the business world, and, in particular, Silicon Valley. The pervasive assumption among politically engaged business leaders that intractable social problems are merely technical puzzles to be solved by disinterested and enlightened experts is problematic enough on its own, especially when it’s a hallmark of the President’s own worldview. When those same simplistic notions are married to one’s understanding of the political process itself, the outcome is even more disastrous.

Fwd.us’ leaders seemed to believe they could run a high-profile political campaign in the same way as a product development initiative: by throwing a lot of money in the pot, hiring very smart people, giving them the space to do what they do best, and keeping a lid on what information gets out to the public. It’s a managerial approach to politics that’s practically designed to fail. As anyone who’s not paid to believe otherwise could have told them, the most successful issue advocacy efforts are not the ones run by cliques of secretive, well-compensated consultants; they’re the ones that have movements behind them.

The Obama administration learned the difference between the two during its first term, when the President was forced to match up his insular, expert-approved inside game on the stimulus bill and on healthcare reform with the spreading wildfire of the Tea Party movement. Obama got his bills in the end, but only after exhausting his limited bank of political capital in an interminable campaign of asymmetrical warfare with an opponent that got stronger the longer the struggle dragged out. Obama won his narrow legislative victories, but he lost his Congressional majorities in the process.

Later, the Tea Party movement itself learned a similar lesson. Caught in a power struggle between local grassroots activists and the seasoned Astroturf professionals at Freedomworks and Americans For Prosperity, local Tea Party leaders who chose to side with the latter found themselves branded as traitors to the founding principles of the movement. As it turned out, the fresh-faced activists who fueled the fire of the Tea Party movement cared about more than mere short term political victories for the GOP political operatives who hoisted their banner. They wanted to shape the world in their own image, and after a short-lived honeymoon with the Republican Party establishment, they found that it wasn’t Nancy Pelosi, but the professional DC co-opters who stood in their way.

Tech industry rhetoric about “crowdsourcing” and “disruptive innovation” aside, the kinds of messy, bottom-up, confrontational movements that fundamentally transform politics are alien species in the boardrooms of Silicon Valley. Successful business leaders excel at developing practical solutions to identifiable problems in a relatively constrained arena of entrepreneurs, investors and consumers. That is the world of the marketplace. It is not the world of political engagement.

Behind the immigration reform effort is what is arguably the most widespread, powerful and enduring movement since the Civil Rights era. It’s a movement that will prove to dwarf the Tea Party in its scope and longevity. It is this movement, and the demographic shifts that are adding to its ranks every day, that moves the needle inexorably toward passage of a comprehensive immigration reform bill. Whatever Mark Zuckerberg and his colleagues add to this historical tide are but drops in the bucket, which is exactly what makes their tactics of expediency — of sacrificing critical environmental issues that truly are in precarious shape to serve their narrow organizational goals — so odious and unnecessary.

Zuckerberg’s defenders — the few that are left — will undoubtedly point to naïvety to the sausage-making ways of Washington on the part of Fwd.us’ detractors. Some already have. And in a fight on another issue, perhaps they’d be right. Sometimes, the kinds of unseemly trade-offs that are at the center of Fwd.us’ lobbying strategy are just the regrettable price to pay for representative democracy. But on this issue, Fwd.us’ tactic isn’t just cynical, it’s gratuitous. The movement behind immigration reform doesn’t need Mark Zuckerberg; at this point, he’s a peripheral and ridiculous distraction at best.

What is truly naïve is the remarkable notion that a handful of tech industry titans can step in front of a social movement, cut a few checks and change history. That’s the fantasy behind Zuckerberg’s vision of Fwd.us, just as it was the fantasy behind his faux heroism in forking $100 million over to Newark public schools while the cameras were rolling on Oprah, with questionable accountability and transparency. Washington (like Newark) may be a hopelessly corrupt place, but meaningful social change is still a harder task than that, even for the digital technocrats of the ruling class.

Mark Zuckerberg’s Flailing New Lobby Group Represents Everything That’s Wrong With DC

Mark Zuckerberg's new DC lobbying group is already a failure

Within about a month of the debut of Fwd.us, Mark Zuckerberg’s new DC lobby outfit aimed at promoting immigration reform, the group is already falling apart. If this week is any indication, the meltdown will be as spectacular and ignoble as every other ill-conceived, overfunded start-up in the Valley.

Fwd.us’ political problems began the way they usually do: with a cynical, too-cute-by-half strategy adopted by his Beltway proxies. Fwd.us’ approach amounted to this: buy the votes of key lawmakers by dumping money into ads in their home states on issues that are useful to them but that Mark Zuckerberg doesn’t care about. What that has meant in practice is running commercials supporting South Carolina Senator Lindsey Graham for his bold opposition to Obamacare and his support of the Keystone XL Pipeline, and applauding Alaska Senator Mark Begich for his support for drilling in the Arctic National Wildlife Refuge. Since Fwd.us doesn’t want its own brand associated with such unsavory positions, it’s done what “special interests” always do: it has set up ad hoc shell groups to front its ad buys, in this case, “Americans for a Conservative Direction” and the “Council for American Job Growth”.

The problem with this approach, Zuckerberg is learning, is that when you pull together a coalition to fund your lobbying campaign, it’s not enough just to grease your way into political influence in the Capitol. You also have to answer to the people who cut your checks. That’s especially difficult when some of them have actual integrity.

Today, PayPal billionaire/Tesla founder Elon Musk pulled out of Fwd.us, objecting to the group’s crass exploitation of “other important causes” in its myopic pursuit of its immigration policy agenda. He was joined by another PayPal alum, David Sacks.

It’s incredible to conceive of Zuckerberg not seeing this coming. After the ANWR and Keystone Pipeline ads ran, the Sierra Club, the League of Conservation Voters, MoveOn.org and a number of other groups put out a joint statement condemning the tactic and announcing their suspension of ad buys on Facebook. Musk’s entire business persona rests on his reputation as a visionary of sustainability and green entrepreneurialism. Even if he’d wanted to, it would have been all but impossible for Musk to continue participating in Fwd.us after it had been exposed for shoveling his money into ads supporting fossil fuels and Big Oil.

Another, more subtle design flaw in Fwd.us’ cynical approach is noted by an anonymous “tech lobbyist” in an article in Forbes:

One tech lobbyist says the approach, by avoiding any mention of the immigration debate itself, sends the message that FWD.us is “afraid of its own issue. They’re saying, ‘We want you to vote for this, but we don’t want to get you in trouble.’”

Of course, it may well be that Fwd.us is afraid of its own issue. Zuckerberg, after all, isn’t interested in immigration reform as a human right; he’s interested in facilitating Facebook’s acquisition of work visas for foreign-born software engineers. Narrow as it is, that’s not necessarily an objectionable policy goal in its own right. But nor is it a font of moral conviction burning in the heart of a champion for the nation’s oppressed. This is Mark Zuckerberg we’re talking about.

Fwd.us’ lobbying approach reflects the worst of DC-style politics: it’s cynical, it’s transactional, and it’s predicated on using critically important social and ecological issues as pawns in a chess game. Worse for Zuckerberg, it’s ineffective. Filled with Silicon Valley hubris, Fwd.us boasts about its “innovative” and “disruptive” approach to politics. But so far, the crude tactics it has adopted are as old as politics itself, and clumsily handled at that. To pull off a strategy as calculated and risk-fraught as this one, at the very least you’d need an extremely dexterous hand. Instead, Fwd.us’ sneaky back room dealmaking has been exposed to the world by every major news outlet from The New York Times to TechCrunch. Zuckerberg’s hired political hands have fingers made of butter.

If Zuckerberg really wants to wield influence in the immigration debate, he needs to stop pretending he’s a guest star on House of Cards and start getting serious about the issue. Though at this point, he’s probably better off recognizing Fwd.us as the failed start-up it is, folding up shop and selling the office furniture on Craigslist.