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We Asked a War Correspondent About the Origins of ISIS

ISIS

Anand Gopal’s job is to report from the front lines of conflict. He spent years as the Wall Street Journal’s reporter in Afghanistan, and in a few months he will be heading to Iraq to take stock of the chaos enveloping the region.

In the wake of the Islamic State’s murder of photojournalist James Foley, VICE checked in with Gopal to find out what he thinks of the situation unfolding in Iraq and the risks inherent in reporting from a war zone.

VICE: You spent years living in and reporting from Afghanistan, first for the Christian Science Monitor and then for the Wall Street Journal. The last reporter the Journal had covering Afghanistan before you was Daniel Pearl, who was murdered by Pakistani militants in much the same way James Foley was by the Islamic State. Later this year, you’ll be traveling to Iraq to cover the turmoil there. Your job obviously requires you to take significant risks with potentially lethal consequences. Do you think of your work this way? Or do you become inured to the dangers it entails?

Anand Gopal: I have not become inured to the dangers, because the moment you do that, that’s when you’re the most vulnerable. Although I work in war zones, and I work in places that are considered dangerous, I actually take quite a bit of precautions when reporting. I make sure I know an area very well; I make sure I have a very trusted network of contacts. I tend not to take particular risks that some other types of journalists take—particularly photojournalists, I think, tend to take way more risks than print reporters do, because they need to be in the middle of the firefight to take the photos. I’m always more interested in the background to the fighting, the political underpinnings of the fighting, so I tend not to be the one to run to the scene of an explosion, whereas photojournalists tend to do that.

So, of course there are risks, but I try to mitigate those risks through preparation and through the types of stories that I pursue.

You’ve interviewed both foot soldiers and leaders in the Taliban, and Afghan warlords like Gulbuddin Hekmatyar. These were, obviously, dangerous men steeped in brutal violence and war. From a Western vantage point, however, the Islamic State seems as if it belongs to a different category altogether. The IS bloodlust seems to go even further than that of the Taliban, al Qaeda, and the other radical Islamic groups that the US has been at war with for the past 13 years. Is that an accurate description in your view, or is there a hype factor at work here?

To some extent it is accurate to say that ISIS, or the Islamic State, is quite different from the Taliban. Different from al Qaeda as well, but especially different from the Taliban, for a couple of reasons—one of which is that the Taliban’s goals have always been nationalistic, in the sense that they claim to be fighting on behalf of Afghans against a foreign occupier. They claim to have the extent of their political ambitions being the return of Afghanistan to the status quo before the 2001 American invasion. And so in that sense they’re very much sort of focused on Afghanistan, and also—something I’ve learned from talking to Talib fighters—is that the things that propel them to fight are very local, very parochial. It’s about some valley that you live in. There happens to be a warlord there who’s predatory or who causes human-rights violations, and you’re reacting against this warlord. And that’s really the extent of it, and you go and join the Taliban. So it’s a very locally oriented movement, whereas ISIS is not.

What’s very interesting about ISIS is that they seem to reject the international order altogether, and I think that’s very unique and different. Even when the Taliban were in power, they sought international approval to an extent. I don’t think ISIS is necessarily more bloodthirsty than the Assad regime, or the Taliban, or al Qaeda, but what’s different about ISIS is that they are very happy to show their atrocities. They post it on Twitter. They put it on YouTube. And it’s because they have basically rejected the international order, and they’re rejecting working with the international order, and claiming their own order, an Islamic order harking back to the caliphate days, and because of that it seems like they’re much more bloodthirsty than any other group. But groups that are in power, including the Syrian regime, and groups that are in opposition, including elements of al Qaeda or the Pakistani Taliban, can be just as bloodthirsty, except that they try to minimize their atrocities; they don’t want the world to know about them. They hide their atrocities, whereas ISIS, because they reject the international order, they have a completely different strategic logic. So they promote their atrocities, and because of that we tend to think that ISIS is somehow uniquely bloodthirsty, more bloodthirsty than any other group out there, but I don’t think that’s actually the case.

Journalist Anand Gopal. Photo via Brave New Films

On the surface, last week’s gruesome murder of James Foley seemed to be either a warning to the US to stay out of Iraq or a provocation to join the fight. But was the intended audience really the West, or could it have been aimed at a domestic Iraqi audience for recruitment purposes?

Well, it’s possible that it was both simultaneously. I think there’s less sympathy for the killing of an American in parts of Iraq, given Iraq’s recent history with the United States, than there would be for the killing of Iraqis or Syrians, which is also happening on a daily basis via ISIS. So it’s very plausible that on the one hand it was something that was intended for a local audience in terms of recruitment, but at the same time I do think it’s hard to deny that in some way it was intended for the West as well.

There’s a line of thought out there, which I think is plausible, which says that ISIS and its previous incarnation, going back to 2004, 2005, 2006, that what they were very good at was operating in a state of war—at sowing chaos, and using that chaos to draw recruits and function as a group. And you could see this as part of that strategy. They’re still operating in a state of war. Their efforts to actually build a state, even in places like Rakkah in Syria, aren’t as extensive as you may see in in other places, like if you compare it with Hezbollah, and the mini-state that Hezbollah has in Lebanon, or some other Islamist groups.

As monstrous as the Islamic State may be, its success is fueled by legitimate grievances on the part of a Sunni population that has been relegated to second-class status by the Maliki government, a government that came into power as a result of the United States’ recklessly short-sighted invasion and occupation of the country. Now we’re essentially being dared by IS to intervene again in what has become a three-way civil war. Is there any kind of constructive role the US can play in this nightmare scenario, military or otherwise, or should the Obama administration stay as far away from the situation as possible?

I don’t think there’s a constructive role that the US can play. It’s important to keep in mind that the US is indirectly responsible for the very existence of ISIS because of its invasion, because of the chaos that was sowed by the invasion and because of the civil war that was ultimately caused by the United States’ invasion. So number one, given that, and number two, given the fact that it was US partners that laid the groundwork for Sunni disillusionment that ISIS was able to take advantage of, I don’t think the US has a very good track record in Iraq, and so I would be very wary of US involvement.

But beyond that, also, there’s really a dearth of good options. It’s not like a foreign power, a major power like the US can come in there and somehow defeat ISIS without causing unintended consequences or second- and third-order effects of the sort that gave rise to ISIS in the first place. I think if the Syrian Revolution were to change course, which unfortunately seems like it’s not very likely right now, but if it were to, if the less radical Islamists and the non-Islamist forces were able to become stronger, that might change the dynamic, but unfortunately it doesn’t seem like there’s a lot that can be done. It seems like there would be a lot of bloodshed for many years to come.

What we’re seeing, more broadly speaking, is the fact that we’ve had 30, 40, 50 years of dictatorship, secular dictatorship across the Arab world, in which you’ve had very weak left forces that can articulate a vision of social justice that’s also secular. Those forces have been extraordinarily weak, in large part because of these dictatorships, because of Arab nationalism and Baathism and a lot of these ideologies that garb themselves in left-wing rhetoric but actually, in practice, are very oppressive. And so I think that robs a lot of genuine social justice and left-wing political movements of their legitimacy. And instead what you have is left-wing dictatorships or Islamism as the alternative.

And so after the Arab Spring, the secular dictatorships have been overthrown for the most part, or they’ve been attempted to be overthrown, and there’s nobody else to fill that vacuum except for the Islamists, and so that’s what’s playing out across the Arab world.

I don’t think there’s an easy solution to that. It’s a generational thing. It’s going to take rebuilding, rediscovering these forms of politics and resistance that don’t have to do with Islamism and don’t have to do with Baathism and these other ruinous ideologies. It’s going to take a lot of time, and unfortunately, it’s going to be very bloody.

Portraits of Syrian dictator Bashar Assad in Damascus. Photo by James Gordon

You’ve written, of Syria, that there is “a powerful pull in the West to order a messy reality into a simple and self-serving narrative.” Do you see that process unfolding in media accounts of what’s happening in Iraq today?

Certainly. I think for one thing, people have forgotten the history. The debate right now, sadly, is whether Obama pulling out in 2010–2011 is what caused ISIS to grow and become strong, or whether not arming the Syrian rebels is what allowed ISIS to grow and become strong. But these are very selective and simplistic views because we have to take the longer view, which is the fact that this is all taking place within the context of the radical upheaval that the US caused by its intervention and occupation of Iraq. And that has to be the starting point to begin to understand this.

And secondly, people tend to think of ISIS as purely evil. I see that word a lot. And obviously they’re heinous and barbaric and I abhor them. But we don’t get very far by thinking of them as purely evil. We need to really think about what are the social origins, what are the political roots of ISIS. What are the conditions in Iraq, particularly after 2008 and 2009, that led to the feelings of disillusionment and disenfranchisement on behalf of Sunni populations and the anger toward the Maliki government that allowed a group like ISIS to become strong in the first place?

This interview originally appeared in VICE.

Seattle’s Former Police Chief Speaks Out Against Police Brutality

Seattle Police

In recent weeks, incidents of lethal police violence against unarmed young black men have occurred in cities across the country, not just Ferguson. But in Ferguson more than anywhere, police doubled down on their role as a hostile occupying force in the community, showing off theirmassive collection of military-grade equipment and weaponry in a crude (and so far unsuccessful) attempt to intimidate the local population it purports to serve.

This isn’t the first time a local police force has turned an American city into something resembling a war zone in the name of civilian crowd control. In 1999, during the “Battle of Seattle” protests against the World Trade Organization, national headlines were accompanied by images like what we’re seeing out of Ferguson today: prrotesters being tear gassed and beaten by men in uniform. The Seattle chief of police was forced to resign in the wake of that debacle.

Since that time, former Seattle Police Chief Norm Stamper has made an astonishing political transformation, not only owning up to his own mistakes at the WTO protests, but becoming a staunch advocate of reforming the police and legalizing and regulating drugs. I got in touch with Stamper to get his take on modern police culture and the militarization of law enforcement in Ferguson and across the country.

The images we’ve seen coming out of Ferguson over the last week are reminiscent of the ones we saw 15 years ago at the WTO protests in Seattle, when you were the police chief there. At that time, you almost immediately regretted your decision to use tear gas, flash bang grenades, and other military-grade hardware against the protesters, and resigned the day after the ministerial ended. What comes to mind as you watch the Ferguson police make essentially the same mistakes that you made?

A whole lot of heartbreak, and I have to admit to some irritation, and some righteous anger. It seems like the rest of the country is hell-bent—I think back to the Occupy movement, for example, and the May Day demonstration—that so many police departments seem to outdo themselves in not paying attention to the lessons of WTO. I made, personally, the biggest mistake of my career that week. If you’re looking for a prescription of what to do wrong, you need look no further.

I think with the advent of the drug war, which certainly preceded WTO in 1999, and, for that matter, 9/11, we still see something that is extremely troubling to me, and that is that in the name of the drug war, we continue to uniform, equip, and arm police officers as soldiers, and then commit them to early morning, sometimes pre-dawn drug raids, in which the target is somebody alleged to have a half a baggie of marijuana in the family home. And of course we’ve seen tragedy after tragedy result from that kind of mentality.

And then we get 9/11. I was retired roughly two years when 9/11 struck, and one of the things that was most unsettling to me was while we had a president who was saying “Bring ‘em on,” and talking tough and so forth, we were very slowly but surely sending a message to local law enforcement that this can happen in your community. Well, of course it can, but it hasn’t, nor is it likely to. That’s no reason, obviously, not to be prepared; it’s no reason not to do training exercises; it’s no reason not to have proper equipment on hand.

 But what are the chances that it’s going to happen in Morven, Georgia, for example, which, as I understand it, is a department of about three people, who have acquired millions of dollars of federal military surplus? There’s a small town in Texas with one officer. He’s the chief, he’s the patrol officer, he’s the traffic officer, he’s the homicide investigator, assuming that jurisdiction ever gets a homicide. He’s it. And yet that small town has been given somewhere in the neighborhood of $3 to $4 million. Billions of dollars overall are portioned out to small departments with no provision for training, no provision for maintenance. And that’s a recipe for disaster. I’ve heard the expression that this is a situation very much akin to “boys with toys.” You give them this military equipment and they want to play with it.

You’ve written that, “simply put, white cops are afraid of black men.” You depict that phenomenon as not solely one of officers coming into the department as bigots, but also as a process in which the cops are learning prejudice and discrimination on the job. Can you explain what this looks like up close from your experience?

Let’s assume for a moment that a department wants to create diversity, sets out to do it. It has to make its organizational climate inviting. It has to make it hospitable to people of all races and ethnicities, to both genders and all sexual orientations. Whatever screening can be accomplished to help block those with racial or other prejudices is essential. And I think, all in all, law enforcement has done a fairly good job at the entry level.

But what happens to, let’s say, the average police candidate once he or she becomes a police recruit, and is going through the academy, is that they get exposed to the culture. And as professional as many police academies are, there are cops on the streets. And the cops on the streets are fond of saying things like, “Well, kid, forget what they taught you in the academy; you’re in the real world now.” And that’s really problematic. What’s being said in the real world and what’s being said in the academy ought to be the same, and it ought to be reinforcing non-discriminatory policing.

Let’s assume for the moment that you’re white, you’ve grown up in an all or predominantly white community, you’ve had little interaction with African-Americans, and you are now a police officer. And you’ve been told either in the academy or upon graduation from the academy, sea story after sea story of tales from the streets. You’ve heard about dangerous people. You’ve heard about individuals who have threatened or attacked police officers, pulled a gun on a police officer. Almost always, in police departments that are not thoughtful, those stories are situated in the black community. So what’s happening at a very subtle level—you don’t have to even express a racist point of view, you’re just simply telling a story from your point of view, as factually as you’re inclined to relate it. But what you’re doing, the meta-communication of all of that is: If you’re going to get hurt as a cop, it’s going to be at the hands of a black person. It’s going to be a male.

Nobody wants to get hurt, everybody wants to get home from their job everyday without suffering great bodily injury or worse, so it’s important for outsiders and insiders to recognize that officer safety is a legitimate and very important responsibility of executive leadership, and middle management, and first-line supervisors; indeed, it’s a responsibility of peers. So that if, for example, I’m scared of young black men that I meet on my beat, but with fear being a socially unacceptable emotion in police work, I can’t really express it, then I’m going to sublimate the fear, and I’m going to compensate in my behavior. In other words, because I’m scared, I’m going to act tough. I’m going to become the bully. Officers don’t say that, not even to themselves, but it is in fact, I’m convinced, what happens when fear is operating among white cops in black neighborhoods.

These recent events would seem to suggest that this culture of institutional police racism has not changed much since you began your career. Would it be a mistake to assume that?

It has changed a lot. That doesn’t mean it’s changed necessarily for the better. If it has become a sub-rosa problem, if it has become a hidden problem, in some respects, that’s even worse. Because if you get serious about improving race relations, one of the things you need to say to your cops is, “If you use racial or ethnic slurs, if you are trigger-happy, if you are heavy-handed in working in the African-American community and we document that case, you’re history. You’re out of here.” So one of the things that happens is, the tougher the talk gets, the smarter those forces within the ranks—not everybody, but those forces within the ranks who are for whatever their personal reasons, committed to a campaign of racism—will become more subtle and discreet. But if the phenomenon is still operating, it is going to affect the way cops behave toward the community.

This post originally appeared in Vice. Photo by Jade Getz.

“We Have Become the Kurdish Air Force” — Former State Department Official Matthew Hoh Makes the Case For Non-Intervention in Iraq

Occupation

Matthew Hoh is a former Marine who served two tours in Iraq before being stationed in Afghanistan as a high-ranking foreign service officer. In 2009, Hoh resigned in protest from the State Department over the U.S.’ misguided occupation of Afghanistan. Leighton Woodhouse, who interviewed Hoh, writes for Capital & Main.

Note: This interview was conducted before the Obama administration announced that it would not send in ground troops to evacuate refugees on Mount Sinjar.

You’ve written that sending U.S. troops back into Iraq, bombing the Islamic State, or otherwise engaging militarily in Iraq’s civil war may serve to salve guilty American consciences, but will only exacerbate the country’s violent divisions in the long run. With that said, there remain thousands of Yazidi and other non-Sunni refugees stranded and besieged on a mountain, with no access to food and water other than by airlift, dying of starvation, dehydration and sunstroke. Should it prove to be the case that the deployment of U.S. ground troops is the only means available to carry out an evacuation, is there a valid distinction to be made between that kind of an emergency, humanitarian rescue mission and out-and-out U.S. military intervention in Iraq? Could this be a situation in which some limited use of U.S. military force in the area is justified, and if not, what is the humanitarian alternative?

I think that distinction can be made in theory or in debate, but in practice I don’t believe it is possible to put American troops into the middle of the Iraq Civil War without supporting one side against another in the conflict. If our troops go into Iraq they will be picking winners and losers in a society they do not understand and in a war that is amazingly complex. This was the genesis of this conflict in 2003. The United States has quite a history of U.S. forces being utilized by one side against another in foreign civil wars, and that utilization only widens and deepens the conflict. Vietnam, Afghanistan, Libya, Yemen and, of course, our nearly nine-year-long occupation of Iraq are all examples. Further, putting foreign troops into Iraq will only help serve the interests of ISIS by lending credence to their propaganda and recruiting narratives.

The plight of the Yazidis should not be seen either as a singular tragic event, but rather as the most recent of a vicious cycle of violence that has been ongoing in Iraq. Estimates are of half a million dead, millions injured or maimed, and upwards of four million people, out of a population of 32 million, or 1 in 8, have been forcibly driven from their homes since 2003. So, without some political solution that will stop the cycle of violence, the Yazidis will soon be replaced in the archives of Iraqi horrors by another ethnicity or demographic. A long-term solution is what is needed, not something that is short-term and designed to score domestic political points or adhere to some form of foreign policy ideology or doctrine.

Finally, it is very important to separate and not conflate our humanitarian mission with the military mission. The United States is the wealthiest nation on Earth and we should help in a humanitarian manner whenever we can. However, in this case our military assets were not used to protect the Yazidis, but to protect territory that the Kurds have taken control of over the last two months. Since June the Kurds have increased their territory by 40 percent, including capturing the major oil city of Kirkuk. Northern Iraq is rich with oil and natural gas and what is playing out is a battle for these resources by the Kurds and Sunnis in the wake of the departure of Baghdad’s control and army. In effect we have become the Kurdish Air Force in protecting the gains the Kurds have made since this crisis began in June. Additionally, we have a very large CIA base near Erbil, which was reported by the Miami Herald last month, and protection of that, because of our concerns with Iran, is a priority for the Administration.

The same was said, however, by Clinton administration officials about Rwanda — that the U.S. cannot risk American lives, treasure and prestige intervening in a “tribal” conflict that could embroil the U.S. in the region for years or decades. The result of that calculation was genocide. Is the situation different in this case? What should be the guidelines for when foreign troops should intervene to prevent genocide or a level of mass atrocity that approaches it?

I’ll turn this around and say that I think the situation is different because of the oil and natural gas in northern Iraq. If Rwanda had such resources I think you would have seen intervention by the U.S. in the 90s.

Additionally this situation is different, because it has been caused by U.S./Western occupation in Iraq and the resultant destabilization of the region. ISIS is an outgrowth of al-Qaeda in Iraq, which was created in the wake of our invasion of Iraq in 2003. What needs to be done is to reverse the cycle of instability caused by U.S. intervention and meddling, one of the results of which is the atrocity committed against the Yazidis.

Consistency in our policy is a needed start to diminish the chances of future genocide. Remember a year ago, many of the same advocates in the U.S. of our re-entry into the Iraqi Civil War to fight ISIS, were advocating the U.S. become involved militarily in Syria, which, in effect, would have put the U.S. in support of ISIS and its goals in Syria. So, consistency in policy, and some thinking other than military-only approaches, needs to be applied to the region.

As far as what guidelines should be for U.S. troop intervention, I must say I do not know. I have not seen any evidence of successful U.S. intervention to stop such violence in our modern history. So, while I think it is a noble idea, I don’t think it is practically possible. Prevention of genocide by addressing conditions of political instability and lack of political order is what is needed and what is attainable.

Certainly the U.S. invasion unleashed the chaos we’re witnessing and set in motion the events that led to the rise of al-Qaeda in Iraq/ISIS/the Islamic State. However, it was during the period of U.S. drawdown that Nouri Al-Maliki consolidated Shiite political rule and excluded the Sunnis from power, fueling the disenchantment that has led to this resurgence of militant Sunni nationalism. While the U.S. was exiting its military role in Iraq, are there diplomatic levers the Obama administration could have used to prevent the current outcome we’re seeing? Are there diplomatic levers it could still use today? Or should the U.S. simply extricate itself from the conflict on every level, both military and non-military?

I think we need to remain engaged with the world and the Middle East non-militarily while steadily reducing our military engagement, and thereby drawing down tensions in the Middle East, cooling off the arms race amongst Middle Eastern nations, particularly Iran and Saudi Arabia, and diminishing the rationale and narrative of terror groups like al-Qaeda and ISIS, that rely, in simple terms, on keeping the motif of the Crusades alive. We have had a heavy military involvement, indeed a military-first foreign policy, in the Middle East since the end of World War II and most especially over the last four decades. The result has been a steadily decreasing level of stability in the region.

With Iraq we should have limited our arms sales to the Maliki government and limited its oil exports unless the government had remained politically inclusive. We have also fostered incredible confrontation between Saudi Arabia and Iran, aggravating an existing Sunni Arab and Shia Persian tension that has played out in both nations supporting proxies in the civil war in Iraq. Of course, this may not have been possible; we may not have had such leverage in Iraq following our occupation. Both Shia and Sunni Iraqi communities were devastated as a result of the American occupation, so it is debatable what influence we could have had at all in Iraq over the last three years.

I feel, sadly, the violence in Iraq may need to play out, that external involvement will cause unintended consequences in Iraq and the region. The United States’ focus needs to be on repairing, actually completely rebuilding, any moral authority it once possessed and trying to become a truly independent outside power that seeks stability, balance of power and prosperity for the people of the Middle East. This isn’t fanciful idealism, but rather realistic policy necessary to prevent further atrocity and collapse throughout the Middle East. If the U.S. continues to try and pick winners and losers in the Middle East then the U.S., and the Middle East, will continue to fail.

Do you believe that the most stable eventual outcome for Iraqis may be the partition of Iraq into three countries, for Shiites, Sunnis and Kurds, respectively, if it’s even possible to do so without foreign intervention?

Yes, I do. I think that is the solution. There must be an equitable sharing of resources, but I believe that is the path most conducive to stability. Over time, when political order is restored, I think you will see a return to the multi-ethnicity that did characterize large parts of Iraq, including Baghdad, but for now I think only segregation and equitable sharing of resources will provide a solution to stop the cycle of violence.

At this particular moment, do you hold out much hope for the long-term future of Iraq?

No. I think political order in Iraq has been so overturned and upset, that we are going to see a lot more bloodshed until a natural and legitimate political order exists again. Again, to reiterate, the cause of this chaos and death has been outside intervention and occupation by foreign forces. It is mind-boggling that people advocate that as the solution.

This interview appeared in Salon. Photo: U.S. Army, Creative Commons

Fear for the First: Is Activist Speech Terrorism?

SHAC7

On Monday, the Center for Constitutional Rights filed a request to the U.S. Supreme Court for judicial review of Blum v. Holdera lawsuit challenging the constitutionality of the Animal Enterprise Terrorism Act.The request, and the history that led up to it, provides a glimpse into the ways in which the free speech rights of political activists continue to be eroded as a result of the defining legal and constitutional framework of our era, the “War on Terror.”

The brainchild of the American Legislative Exchange Council, the AETA was crafted as a direct response to the extraordinary success of an animal rights campaign called Stop Huntingdon Animal Cruelty (SHAC). SHAC had effectively employed what its members believed to be legal, constitutionally protected activity to disrupt the business practices of a notorious animal testing corporation accused of engaging routinely in horrific abuses of animals, such as dissection of a live and conscious monkey.

In March of 2006, at the height of the Bush administration’s War on Terror, six SHAC activists were charged, convicted as “terrorists” and sentenced to a combined 23 years under the AETA’s predecessor law, the Animal Enterprise Protection Act. Their crime: posting information on a website about illegal underground actions carried out by activists not directly connected to SHAC. The AETA was passed in the aftermath of the convictions after biomedical and agricultural industry lobbyists and the FBI argued for the need for “more effective tools” with which to yet more vigorously pursue and prosecute activists engaged in “criminal ‘direct action.’”

The AETA criminalizes protest activity aimed at “damaging or interfering with the operations of an animal enterprise,” specifically citing activism that results in “the loss of profits.” It brands violators of the law “terrorists,” making them eligible for special sentencing enhancements and incarceration in super-maximum security prisons or, worse, Communications Management Units.

Though the law was written to single out animal rights campaigners, there is nothing in its wording to stop it from being used to prosecute other activists, such as labor organizers at slaughterhouses and university research facilities. Moreover, critics charge, in spite of a “savings clause” in the act that purports to put constitutionally protected speech outside of its reach, the broad language of the law casts a shadow over all manner of First Amendment activity whose express purpose is to cause “economic damage” and “the loss of profits” to corporations connected to an “animal enterprise” in order to force them to change their business practices. That activity could include picketing, boycotting, leafleting, occupying, civil disobedience, or undercover investigations. (For its part, in a statement provided to me for a 2012 article in The Huffington Post, an FBI spokesperson asserted, “The FBI does not investigate individuals based on their beliefs or other first amendment protected activity like free speech. It is when the individual exhibits intent to or crosses the line to commit a crime that we have an obligation to act.”)

The result of this ominous lack of clarity, argue the plaintiffs in Blum v. Holder, is a chilling effect on free speech.

The rationale used by the First Circuit Court of Appeals in its decision in March 2014 to uphold a district court’s dismissal of Blum has only compounded concerns over the law’s implications for the right to free speech. Citing last year’s Supreme Court decision in Clapper v. Amnesty International, a case that contested the constitutional basis of the Obama administration’s infamous NSA surveillance regime, the appellate judges declared that the nation’s highest court, in rejecting the plaintiffs’ standing to challenge the FISA Amendments Act, had imposed upon the judiciary a new and “more stringent injury standard” by which to measure complainants’ standing in pre-enforcement First Amendment-based constitutional lawsuits.

In other words, the court argued that in the wake of Clapper, the AETA’s chilling effect upon free speech, no matter how evident, no longer suffices in itself to justify a challenge to the law’s constitutionality. Instead, there must be an immediate threat of injury to a potential litigant under the law, such as a criminal prosecution. Someone who seeks to muster a challenge must therefore ignore the very risks that the “chilling effect” implies, and engage in speech activities that may court prosecution as a terrorist, and then sue only when actual charges are filed. Under those conditions, of course, the cost to the plaintiff of his or her suit’s failure is, potentially, imprisonment.

With that interpretation of Clapper, the court may have raised the legal threshold for mounting challenges to laws that inhibit political speech, potentially including statutes that have yet to be written.

Should the appellate court’s novel extrapolation of Clapper stand, the plaintiffs fear, then in addition to the AETA’s explicit strictures on political expression, activists will be faced with yet another legal hindrance to their freedom of speech, this one not even authorized by an act of Congress. To the growing list of abridgements to civil liberties in the name of the War on Terror — which already includes massive electronic surveillance and draconian criminal penalties for political activism under statutes like the AETA — may be added the innovative notion that laws that serve to chill free speech are immune from constitutional challenge unless and until criminal charges are brought under them.

This judicial theory arguably sidesteps the fact that laws that chill free speech inflict damage on constitutional rights simply by existing, inertly, on the books. They do their worst work, that is, when they do not result in prosecutions, but instead inhibit the very activity that they threaten to punish.

“What the Court of Appeals said is that, despite the plain language of the AETA statute, despite my objective reading of it, despite having limited my speech and activism because of it, and despite my fears that if my speech hurts the profits of animal-use industries I could be prosecuted, I cannot even get my foot in the courtroom door unless or until I am facing years in prison—again,” says Lauren Gazzola, who served 40 months in prison as a founding member of SHAC and who is a plaintiff in the lawsuit. “This hardly makes me feel safe from prosecution when speaking up about violence against animals. That’s why we’re asking the Supreme Court to look at our case: so we can go back into court and actually challenge the AETA’s constitutionality.”

This post originally appeared in Capital & Main and The Huffington Post.

Refugee Children Seek Representation in Courts

Immigration

The clock is ticking for six refugee children from El Salvador and Guatemala who are plaintiffs in a class action lawsuit that seeks to compel the Obama administration to ensure access to legal representation for tens of thousands of unaccompanied minors facing deportation proceedings.

The plaintiffs are among the more than 50,000 Central American children who have illegally crossed the border into the Southwestern United States in recent months, fleeing threats of violence by transnational street gangs that arguably exert more effective control over the daily lives of residents in large swathes of El Salvador, Guatemala and Honduras than those countries’ national governments.

Over a period extending from this month to early next year, the six plaintiffs are scheduled to appear for their own deportation hearings. As with thousands of other unaccompanied minors facing similar circumstances, the decisions of the immigration judges in their cases could mean the difference between life and death.

Three of the children are siblings from El Salvador whose parents operated a ministry that helped people exit the gangs and transition into civilian life. Gang members retaliated against their family by killing the siblings’ cousin and murdering their father in front of them, then threatening the children with violence unless they joined the gang themselves.

Early next month, the three siblings are scheduled to appear in immigration court to argue their case for asylum against a government prosecutor, without any legal representation. They are 10, 13 and 15 years old. Should the judge favor the government’s case and rule that the siblings be deported back to El Salvador, their chances of survival will be questionable and their chances of avoiding conscription into the gangs, even more so.

Last Thursday, with assistance from the American Civil Liberties Union and several other organizations, the six plaintiffs filed a motion to prevent the Obama administration from deporting them until they are able to secure legal representation or have counsel appointed to them by the government.

The motion was filed against the backdrop of an ongoing effort by Congressional Republicans and parallel steps by the White House to expedite the deportation of unaccompanied minors from the three countries. The Justice Department has extended operations of immigration courts in order to speed up deportation hearings with the goal of reducing the wait time for an initial hearing to 21 days, a process some critics refer to as a “rocket docket.” (Last year, the average immigration case took more than a year and a half to reach a verdict.) And the White House and Republicans in Congress share a goal of neutralizing a Bush-era human trafficking law that guarantees asylum seekers from countries other than Mexico and Canada the right to a day in court to present their asylum claims before any deportation order is handed down.

“These children fled horrific violence in their home countries,” says Ahilan Arulanantham, Deputy Legal Director for the ACLU Foundation of Southern California. “The government will pay a trained prosecutor to advocate for their deportation in court. All we ask is that the government give them time to find a lawyer or provide one for them. We owe it to ourselves — as a nation that respects due process and the rights of refugees — to give these children a fair day in court.”

This post originally appeared in Capital & Main.

Alone and Afraid: Refugee Children Face Deportation Without Legal Representation

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Isabel Mejia was 17 years old when she arrived in the United States from El Salvador, having fled her home country for reasons even the most hardened immigration opponent might have trouble dismissing. Some local gang members had decided to conscript her as the “gang’s girlfriend” — to force her into a life of sexual slavery. At home, the situation was no better: She had been a victim of domestic sexual violence. Faced with rape, death or flight, she chose to flee.

Today, Isabel (not her real name), now 18, lives in a small apartment in Southern California with her aunt. Her respite is only temporary. After crossing over the Mexican border into Texas, she had been captured by Border Patrol agents and held in a Houston detention facility before being released into her aunt’s care. Some time in the next few months, she will go before an immigration judge and, with the assistance of a pro bono attorney, present her case for asylum. If her argument is rejected and her appeals fail, she will be deported and sent right back into the impossible bind she risked her life to escape.

In one important respect, Isabel is fortunate: She has a lawyer. Most of the thousands of unaccompanied minors from Central America currently being processed through the immigration court system do so without legal representation. In deportation proceedings, the United States government does not provide free, court-appointed attorneys to refugees who have no other access to counsel, as it is obligated to do for American citizens facing criminal prosecution. Defendants in the immigration courts, regardless of their age or education level, are forced to represent themselves within a body of law that is frequently compared to the Internal Revenue Code in its degree of complexity.

“I’ve seen infants going into court,” says Lindsay Toczylowski, Directing Attorney for the Esperanza Immigrant Rights Project, a Los Angeles-based nonprofit law office affiliated with Catholic Charities. “I’ve seen a five-year-old girl questioned by a judge while she’s sitting in a chair big enough for an adult so her feet don’t even touch the floor. I have not seen a case in which a minor is successfully able to navigate the asylum process and successfully obtain asylum without an attorney’s assistance.”

On July 9, the American Civil Liberties Union, along with Public Counsel, the Northwest Immigrant Rights Project, the American Immigration Council and the law firm K&L Gates LLP, filed suit against Attorney General Eric Holder, Homeland Security Secretary Jeh Johnson and six other Obama administration officials in federal court in Seattle. The suit seeks to compel the government to “ensure that no child faces the life-altering prospect of deportation without legal representation.”

“Our view is not that every child that comes here should have a legal right to stay here,” Ahilan Arulanantham, Deputy Legal Director for the ACLU Foundation of Southern California, explains. “Really it’s just that many of them, in this one UNHCR [United Nations High Commissioner for Refugees] survey, about 58 percent of them, have serious claims to protection under the refugee laws or other humanitarian relief that exists in the immigration law. And the question is just, are we going to give them a fair day in court? Are we going to give them the opportunity to present that claim?”

If the UNHCR figure is accurate, then as many as 33,000 of the 57,000 Central American children who have been picked up by Border Patrol since October 1 may have valid claims to refuge under U.S. law. This massive humanitarian emergency is the result of deteriorating social conditions in three countries — El Salvador, Guatemala and Honduras — that have led to the dominance of transnational gangs over extensive territories within them.

Those gangs were, in part, imported into the region from the United States during the 1980s and ’90s, when thousands of youths who had fled U.S.-financed civil wars in the three countries and emigrated to Los Angeles were imprisoned during the “War on Drugs” crackdown, exposed to California street gang culture and then deported en masse back to their countries of origin. Some of the gangs still bear the names of the L.A. streets that birthed them: The Normandie Locos clique of La Mara Salvatrucha and the 18th Street Gang.

Now those gangs are terrorizing entire nations with something close to impunity.

Sonia Menendez (not her real name) is one of the plaintiffs in the lawsuit. Now 14 years old, Sonia fled El Salvador out of fear of being targeted by gang members because her uncle, a police officer, refused to agree to look the other way when it came to gang activity. The gang members retaliated against her uncle by threatening Sonia’s elder sister.

“When they target one sister, and that sister runs, then they target another,” Arulantham says. “And so all the sisters fled.”

Sonia is temporarily staying with her father, Juan Pablo, in the Los Angeles area.

Juan Pablo, who was a police officer in El Salvador for nine years, describes life in his home country this way:

“After the peace accords [following the civil war], people generally lived well . . . Then, from 1995 on, this problem started. No one thought it would get this big. Many people say that it was better to live in the civil war than what is happening now. The reason why they think that is that ‘they’ live among us. You go out of your house and you don’t know if you will come back alive because just around the corner they are waiting for you.”

“If you don’t let them do what they want, they will kidnap and rape you, even kill you,” Isabel says.

In the coming months, Sonia, like Isabel, will have her fate determined by an immigration judge interpreting laws she cannot understand in a legal process that is stacked against her. If the judge’s decision is not in her favor, Sonia’s options for escaping the gangs will be exhausted.

The chances for future refugees may be slimmer still. The Obama administration has indicated its intention to expedite future deportations of Central American children by working with Congress to gut a law passed under the Bush administration that offers a modicum of due process to asylum seekers from the region. A bill called “The HUMANE Act” would repeal the law’s requirement that unaccompanied minors from countries that do not share a border with the U.S. have an opportunity to plead their case before an immigration judge prior to a deportation order.

“My guess,” speculated  Texas Senator John Cornyn upon introducing the bill, “is that once the word gets back to Guatemala, Honduras and elsewhere that, ‘Look, it’s not a free pass. This permiso doesn’t work. They actually will send you back,’ that people will not start the journey.”

But there is reason to question whether the more callous legal regime that President Obama and Congressional Republicans seek will have any impact on the number of Salvadoran, Guatemalan and Honduran refugees seeking to enter the United States. According to the UNHCR, the U.S. is far from alone in seeing a dramatic uptick in asylum applications. Combined, the countries of Mexico, Panama, Nicaragua, Costa Rica and Belize have seen a 432 percent increase in refugees from El Salvador, Guatemala and Honduras seeking asylum. These figures suggest that refugees from the three countries are not seeking to come to the United States based on a perception of the country’s uniquely hospitable immigration laws; they are simply going anywhere they can get to, including the U.S., to escape the nightmare of their circumstances at home.

“Many of these minors are looking at certain death if they remain in their communities, or face the treacherous journey to the United States and an uncertain legal future once they get here,” Toczylowski contends.

“It would be a mistake to think that this is entirely a product or even mostly a product of the change in our immigration policies in the recent past or anything other than a massive humanitarian refugee crisis,” argues Arulanantham.

Even without the further reduction in the legal rights of asylum seekers that the Obama administration is pursuing, what presently passes for due process for tens of thousands of unaccompanied minors from El Salvador, Guatemala and Honduras has, at best, a dubious claim on justice.

“It has been true for over 100 years under American law that non-citizens do have certain critical Constitutional rights, most importantly the due process clause does not protect ‘citizens,’ it protects ‘persons,’” Arulanantham argues. “That’s what the framers of the Constitution wrote in a very deliberate way. Similarly the 14th Amendment … It has been true for over 100 years that one of those basic protections is the right to a fair hearing before you are to be deported from this country.”

“Proceedings against a 10-year-old child,” Arulanantham continues, “with a lawyer on one side for the government but no lawyer for a child — they’re a joke.”

This post originally appeared in Capital & Main.

Boycott Angora

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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

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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?

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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

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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.