Yet when considering U.S. national security policies, raising the question of mistakes that cost lives is chalked up as a minor issue: “We have to expect collateral damage in wars/drones/bombs/armed conflict.”
If we know that organizations make mistakes, then it’s not that hard to see that organizations without external oversight and accountability will be empowered to make mistakes with impunity.
Not rectifying mistakes, not allowing oversight, refusing to be accountable to an external judicial body is considered by many an abuse of power. But abuse can only be claimed when a state promises to be accountable. If the state claims that it can’t be accountable, can’t be reviewed for mistakes, can’t rectify mistakes because such practices would be dangerous (the reason isn’t really important here), then at most levels, it’s hard to name the state’s attitude as abuse.
Moreover, as journalist Margaret Kimberley points out, the Obama administration has claimed the right to kill American citizens without charge or trial. That’s not an abuse of power. It’s a complete usurpation of power. There is no space by which to claim the administration should have acted differently by its own lights.
Wouldn’t it be more accurate to call this, not the abuse of, but the monopoly of power?
In 2005, Rahina Ibrahim was “cuffed, detained, and denied a flight” to Hawaii to deliver a conference paper about sustainable housing. She was allowed to return home to Malaysia, but because her name was on a U.S. government no-fly list, Ibrahim’s visa was subsequently revoked; she was prevented from returning to the U.S., thus effectively ending her doctoral studies at Stanford. She eventually finished her dissertation in Malaysia, and sued the U.S. government to have her name removed from the no-fly list. But the courts initially ruled that she had no legal standing to sue the U.S. to change its policies because she is a non-citizen, and the U.S.’s efforts to fight terrorism could not be challenged by a foreign national.
Ibrahim persisted, and at least in the most recent round, won. Despite the U.S.’s best efforts to the contrary, Ibrahim is the first to successfully force the U.S. government to remove her name from the list. U.S. District Court Judge William Alsup’s ruling points out that the U.S. government had erred: An FBI agent confessed to having filled out the no-fly list form for Rahina Ibrahim in exactly the opposite way as he should have. Alsup had suspected as early as December 2009 that Ibrahim had been the victim of a “monumental” government error.
Murtaza Hussain, in an excellent assessment, points out that Attorney General Eric Holder abused the state-secrets privilege in the Ibrahim case. In an affidavit from April 2013, Holder invoked the state secrets privilege as the reason that the Department of Justice could not turn over the records regarding why her name was put on the no-fly list. Referring to the 2009 State Secrets Policy established under a young Obama administration, Holder promised that he would not claim the state-secrets privilege to hide wrongdoing, incompetence, inefficiency or embarrassment. Nor would he invoke it to “prevent or delay the release of information the release of which would not reasonably be expected to cause significant harm to national security.”
Clearly, Holder lied. The reason we know that Holder lied is because of what was revealed in Judge Alsup’s decision. In this specific instance, we have clear evidence that the Obama administration abused its power — on the view that the abuse of power is constituted when a government has promised to behave within certain procedural bounds and legal limits, but has stepped beyond them.
As journalists Kevin Gosztola and Marcy Wheeler demonstrate, the Obama administration is completely indifferent to its own state-secrets policy, except as a subterfuge. They have invoked it time and time again, for horrendous ends. As Shahid Buttar, head of the Bill of Rights Defense Committee, communicated to Gosztola back in 2012 about the invocation of state secrets privilege:
“the ability of the FBI to ‘stand above the law’ and not answer to any authority when they outright lie or make deliberate misrepresentations about what kind of operations they are or are not conducting. Also, it makes it possible for the Executive Branch to enjoy extraordinary immunity from punishment when incredible abuses of power are committed and cases on torture, warrantless wiretapping or spying are brought forward in court.”
State-secrets privilege is but one of multiple excuses that the Obama administration, like the Bush administration before it, has used to expand its own power without any accompanying review or oversight of it. Whether the continued renewal of FISA (which candidate Obama voted in favor of in 2008), the NDAA 2012, NDAA 2013 or a myriad of other laws the Obama administration has endorsed under the unchecked expansions of power claimed by the FBI, CIA (often in collusion with NYPD) and DOJ. Countless foreigners have been rendered from Somalia, Sweden and elsewhere, and interrogated without defense lawyers; numerous men have been placed in solitary confinement in prisons around the country, still unaware of the charges against them, with sketchy trials at best. Some of these men have been rendered stateless with the help of the British Home Office, such that their kidnappings could not be contested. Muslim communities all over the United States — in Southern California, Oregon, Minnesota, New York, Pennsylvania and New Jersey — have been subject to spying and entrapment.
Let’s not forget Terror Tuesdays and the Disposition Matrix, where Obama administration officials gather to determine which alleged terrorist to execute next — without evidence, without oversight, with impunity.
It has also been recently discovered that the FBI — the very agency whose employee made a mistake in placing Rahina Ibrahim on the no-fly list – holds the power to delay the citizenship applications of Muslims, a policy enacted under the Bush administration but still in effect today.
The targeting of Abdulrahman Al-Awlaki, the 16-year-old U.S.-born son of Anwar Al-Awlaki was a mistake.
Putting post-surgery, wheelchair-bound, Stanford doctoral student Rahina Ibrahim’s name on a federal no-fly list in 2005 was a mistake.
Hundreds of thousands of people were subject to housing foreclosures due to mistakes.
Incarcerating innocent (but not guilty) men without charges or trials is a mistake.
Holder’s behavior and that of many of his colleagues in the Obama administration, such as Director of National Intelligence James Clapper, indicates that they have no problems with mistakes, or with lying about government practices, evading demands for evidence, or concealing violations with law. This may make them corrupt — on the view that there should be a higher standard of behavior from government officials, one that conforms to consistency and accountability.
To the extent that the Obama administration has conceded to calls for oversight, it has facilitated pseudo-review boards, as when Obama appointed DNI Clapper to review the National Security Agency’s protocols. Even the name of the group, Director of National Intelligence Review Group on Intelligence and Communications Technologies, indicated no interest in external oversight.
On the view that lying, evading and concealing are the (counter)part and parcel of the Obama administration’s approach to national security — the other part being that any and all strategies will be utilized without regard to accountability or oversight, because these are necessary actions to protect the public at all costs — then Holder’s and Clapper’s actions don’t reveal an abuse of power, but rather the precise and intended application of power.
In fact, as many have pointed out, the Obama presidency is following in the footsteps of the Bush administration. It might be more accurate to say that the current administration is carving out even bigger footsteps for itself, with its record number of drone murders, solitary-confinement-based incarcerations, domestic and global surveillance, deportations of migrants, and its pointed indifference to looting bankers. By claiming the right to wield power without apology in all areas of national security domestic and foreign, and on behalf of Wall Street, the Obama administration is claiming the status of the Leviathan, as the sovereign authority in Thomas Hobbes’ 16th century treatise on politics is named.
The Leviathan claims both to be the actor and author of the collective will: Once people have handed over their consent to the sovereign (demonstrated by abrogating each individual’s rights to kill), then the Leviathan claims that power in the name of the people completely. The Leviathan can do no wrong and admits to no wrong. What’s more, unless a person can find a stronger protector, they have no choice but to submit to the Leviathan’s authority.
The Obama administration refuses to admit that its policies are fraught with mistakes, concede that its mistakes have hurt innocents needlessly, or correct those mistakes in the name of state security. It resists attempts to make it accountable by resorting to incarceration (John Kiriakou), mock trials (Chelsea Manning) or no trials (Barrett Brown), rescinding passports (Edward Snowden), coercing other sovereign states to incarcerate challengers to its power (Yemen/Abdulelah Haider Shaye), and killing citizens and foreigners alike without review or impunity (whether by drones, financial starvation). It claims to be the ultimate sovereign authority — without challenge, dissent or resistance. It makes the same claim as the Leviathan.
At some level, the question that needs to be addressed is not whether the Obama administration is interested in holding itself accountable — but whether we are interested.
If U.S. citizens are interested in the accountability from an administration that considers itself to be not only above the law, but is unilaterally creating law and (by extension) determining others’ criminality through its own (often secret) standards, then we have to decide how to wrest back power from an absolutist state. By an absolutist state, I mean an administration that considers dissent, scrutiny and criticism from any lowly individual unforgivable, while insisting that its own mistakes (real and contrived) are necessary to its self-awarded status as the ruler of the world.
A frequent response of those untroubled by the revelations of the National Security Agency program is: “If you have nothing to hide, you have nothing to fear.” Perhaps we need to translate that phrase, along with the relative colorblindness through which the entire series of revelations has been scrutinized, as: “If your last name isn’t Khan, and you have no family in Pakistan/India/Iran, etc., you have nothing to fear.”
The revelations of NSA’s collection of “metadata” — as cybersecurity expert Susan Landau explained on “Democracy Now” — is, in fact, even more invasive than actual content collection. She gives an example of how that can be the case: Even if all the NSA does is trace the one or more calls from your home to your doctor on a day when you would normally be at work, followed by one or more calls from your phone that is now located at the doctor’s office to your family, that information strongly suggests that the content of the call was bad news.
Similarly then, if the NSA collects metadata of all calls and online traffic in the U.S., they are probably much less interested in a person living in New Paltz, N.Y., who calls Barcelona eight times a week than they are in biweekly calls from an Indo-Pak restaurant owner in Edison, N.J., to a “terrorist-heavy” locale in Pakistan — say, Waziristan. Clearly, in both cases, the pattern reveals the obvious: that both the New York and New Jersey residents have some connection to folks in the receiving nation. But what does it tell the NSA about who they are? To judge from the NSA’s data-mining project, the intensity of NSA surveillance is heavier in Pakistan than in Europe. Thus, even if the calls from New Paltz are to a terrorist cell in Barcelona, it seems more likely that the calls to Waziristan (say, to the restaurant owner’s mother and brother, and his family) will be more suspicious — of course due to the U.S.’s framing of where the War on Terror must be waged. Still, the latter would be, as Marcy Wheeler discusses in a related issue, “false positives.”
What is the starting framework that informs the NSA to target your call? That folks with close/frequent connections to Pakistan should have their calls monitored? That these same folks have an increased likelihood of being terrorists/sympathizers? Or, alternately, that if one is an Iranian migrant, from a family that left sometime around the Revolution, yet retains close friends who work for the Iranian state (even as low-level civil servants), then their calls should be the subject of targeting (because as Dianne Feinstein has now announced, Iran is a terrorist state)? Or, as she has also stated, it allows the state to keep records of people who become terrorists later (Ã la “Minority Report”)?
I can hear the liberals now: “Of course, there she goes, making it all about race again.” Um, no. The NSA is making it about race/religion/ethnicity – as these are uniquely combined in the conceptual category of “Muslim Terrorists.” Other branches of the state have long established that terrorism is a unique category that, while defined race-neutrally as having to do with international or domestic political violence targeted against the U.S. government or its citizens, is almost uniquely and singularly applied to Muslims. We’ve seen evidence of this at other levels of government, as in the case of the NYPD’s surveillance of Muslims (in New York, Connecticut, Pennsylvania, New Jersey and internationally). Most recently, we saw this with the immediate rush to assume that a Saudi national that fled the Boston bomb blasts must have been the person who set them — before he was cleared the next day.
If this is the framework that underlies the massive dragnet, then I’m hardly the one making it about race. Meanwhile, as is so often the case, Marcy Wheeler and Rayne (writing at emptywheel.net) have each been presenting some of the most careful and detailed analysis of these programs. While the PRISM program is limited to collecting data from non-U.S. persons — and what that means is still unclear; does U.S. persons include non-citizen residents from India/Pakistan/Iran, etc., residing legally? — as Rayne asks:
Does this mean that all communications between individuals who do not have an Anglo-Saxon name are likely to be sniffed if not collected?
Does this sketchy “(foreign) + (less than 3 hops)” approach executed by humans explain known false-positives? Could the relationships between the false-positives be as tenuous as shopping at the same store? What happens in the case of targets possessing a highly common name like “Ahmed” — the equivalent of Smith in terms of frequency among Arabic surnames — in collection so large it could be called a dragnet?
As others have pointed out, some of these details are hardly new, although the names and scope of the program have changed. As far back as 2005 (yes, under an order signed by then-President Bush), USA Today was reporting details of the NSA’s data collection, warrantless wiretapping, and telecom companies turning over data to the feds. It’s also true that there was hullabaloo about it (though not as loud in mainstream media) by those who are labeled hardcore “privacy freaks” — folks like the ACLU, etc. At some level, we may not have heard that much “new” information, but between Edward Snowden, Laura Poitras, Ewen MacAskill and Glenn Greenwald, we now have unquestionable, tangible proof that the intelligence dragnet has been extensive and long-standing even after Bush’s executive order was rescinded.
Ultimately, the political celebration of NSA’s surveillance programs appears to rest on the same old tired flackery parroted by Sen. Lindsey Graham: “I don’t care if the NSA collects my data.” Of course, Graham doesn’t care. Of course, DiFi thinks NSA data collection is crucial to catching terrorists. Of course, white suburban soccer moms are more interested in the intrigue of Snowden’s (ex?)girlfriend. Why should they care? They don’t worry that they will awake some morning and find themselves on the wrong side of the state — and certainly not because “they’re not doing anything wrong,” but rather because they’re not the wrong color, the wrong religion, the wrong ethnicity, the wrong family. (Remember former White House press secretary Robert Gibbs on 16-year-old Abdulrahman Al-Awlaki’s death? “He should have been born to a far more responsible father.”) But of course.
That’s why Lindsey Graham, DiFI and the white burbie housewives think that NSA surveillance is a great idea. They’re not politically vulnerable (OK, that’s an understatement). They’re officially in favor of the War on Terror. And certain under this administration and the previous one, their calls to the doctor and to family (or even Graham’s hypothetical call to Waziristan) are not registering as the “suspicious” activity that the NSA is looking for.
As I’ve said before, this all comes down to a familiar form of American privilege:
“[T]he privilege of not having to know (or know about) foreign nationals or feel particularly obliged to them, or know about the harms done to them, simply because the wars, jingoism, and aggressive foreign policy of the U.S. empire won’t affect you.”
The other side of the NSA leaks has to do with what we know or can infer about the profiles of people who get top-security clearance. If the NSA’s dragnet is designed to look for “suspicious” activity, then besides being directed toward foreigners and foreign threats, it should also be looking for people like Snowden (of course I’m not endorsing this; just considering the logic of the hunt): seeming “one of us” kinda guys — conservative, a believer in American ideals as decided and executed by the U.S. government, a former troop, a “regular guy” with top national security clearance. Who, as it turns out, doesn’t like what he is coming to learn in the course of his work, and is beginning to take serious issue with the size and scope of the project. Except that all the national security surveillance in the world didn’t catch him before he flew to Hong Kong to meet with reporters and turn over evidence of these secret slides that document an out-of-control surveillance program. Whoops.
A gold star if you can guess who made the following four statements without clicking on the links. Hint: Two were by an aggressive, hawkish, Republican, one of which was famously said over 10 years ago. Two others are by the more erudite, constitutionally savvy, liberal, moderate, current president. You remember him: He’s the one Hillary Clinton taunted in 2008 as not being tough enough to answer the phone at 3 a.m. At this point, it’s safe to say that we no longer need to worry about that.