Udall, The Torture Report and The Pentagon Papers Option

Shortly after Colorado Senator Mark Udall lost his reelection bid to Rep. Cory Gardner, it began–first as conversations among civil liberties activists, then in media outlets, and finally Udall himself raised the possibility: on his way out of the Senate, he might release all or at least portions of the long CIA-stonewalled Senate Select Committee on Intelligence report into the Agency's long-infamous torture program from the Bush 43 era. The Atlantic's Conor Friedersdorf went much further, arguing that Udall should take the opportunity to release what he knows about a range of Intelligence Community (IC) misconduct. The basic theme is that in doing so, Udall would be a hero (true for many people, less so for others) and the country would get a better idea about the totality of the IC's misdeeds. It would also, in theory, reignite the faltering IC reform effort.

Would it work? History suggests the answer is probably “no”–at least not just the act of dumping politically explosive classified information onto the press in the hope of spurring changes in policy.

For those of you who are pondering this weighty issue, if you have not taken the time to watch The Most Dangerous Man In America, do so. It's the story of a government official with a conscience who made the decision to put the Pentagon's secret history of the Vietnam War into the public domain at the very time anti-war protests were rocking the nation. I'm of course talking about the legendary Daniel Ellsberg and the Pentagon Papers case.

In the documentary, Ellsberg laments–in the wake of the disclosures he made, the publicity, his prosecution and the related lawsuits–how all of his efforts did not lead his fellow Americans to demand an immediate end to the war. Nixon was reelected in a landslide. The war ground on for several more years. And only one sitting member of Congress–Senator Mike Gravel of Alaska–had the courage to read the entire Pentagon Papers into the Congressional Record to ensure they stayed in the public domain. The Nixon administration sued Gravel in federal court, with the Supreme Court ultimately deciding that the Constitution's speech and debate clause provided any House or Senate member with a legal shield for making such disclosures.

It is certainly true that other abuses of executive power came to light over the next few years–specifically, the surveillance abuses by the National Security Agency (NSA), the Central Intelligence Agency (CIA), and the Federal Bureau of Investigation (FBI). And it was those revelations that led to the creation of the Foreign Intelligence Surveillance Act (FISA) and the two Congressional intelligence oversight committees. Yet just three years after FISA became law, newly elected President Ronald Reagan signed an executive order that former State Department official John Napier Tye has alleged has allowed NSA to effectively circumvent FISA and capture virtually unlimited quantities of the overseas communications of Americans. Given the scope of the revelations by former NSA contractor Edward Snowden, Tye's allegations are entirely believeable–another argument for Udall to spill what he knows while he can do so behind the shield of Speech and Debate.

But a one-off dump of classified information–no matter how voluminous or sweeping–will likely not have the beneficial effects proponents hope for. That was the case with Ellsberg's revelations, and has thus far been the case with Snowden's. A real reform effort is not based on single actions, no matter how dramatic. They can provide the spark, but the fuel to keep the movement going and growing requires the commitment of thousands, and ultimately millions.

It's worth noting that no House or Senate member has since followed Gravel's (in my view) courageous and constitutionally necessary example. Fear of expulsion from Congress or facing “soft-on-terrorism” attack ads in the next election cycle are powerful disincentives for going down that road. But Udall's defeat means those disincentives don't apply–assuming he has no plans to run for office again. Which brings me to why I think Udall should chose another option: running for president in the 2016 Democratic primary.

To conventionally-minded Democratic strategists–the ones that just lost the Senate, that is–such an approach would seem insane. Udall just lost, not just the election but the platform that is the United States Senate, they will argue. And my response is, “Exactly”.

Udall is free to pursue his own political path. He has done more to push for real checks on the National Security State than any Democrat in either chamber, giving him a moral authority no other Democrat thinking of running for president can hope to claim. And he can still talk about the abuses that have come to light, just as he can talk about what else the American public should know and why rolling back the Surveillance State is necessary to restore our liberty and secure our economic future. If the American tech sector comes to be viewed globally as simply the corporate arm of NSA, hundreds of thousands of jobs will be lost and our technological destiny will be decided by others, not us. Udall could be that leader and messenger for a different and better path forward, but not if he takes an action that allows his opponents to dub him “Senator Snowden”.

 

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Surveillance Reform: House Mid-term Election Impact Update

While seven House races remain undecided, what we do know is that seven House members who voted for the Massie/Lofgren/Holt NSA surveillance reform amendment to the FY15 DoD appropriations bill were defeated on election night. They are Shea-Porter (NH-1), Garcia (FL-26), Schneider (IL-10), Rahall (WV-3), Bishop (NY-1), Enyart (IL-12), Maffei (NY-24), and Horsford (NV-4). Incoming Rep. Blum (IA-1) made surveillance reform a part of his campaign, so he represents a pick up. While some of the remaining undecided House contest may result in a few more losses of Members who voted for surveilance reform one or more times, those losses would be of negligible, if any, impact for surveillance reform efforts. Accordingly, my previous prediction stands: the overwhelming majority of House members who supported the Massie/Lofgren/Holt amendment will be back for the 114th Congress.

Finally, I want to take a moment to respond to a recent post by law professor Steve Vladek. Vladek has repeatly accused libertarian-leaning Republicans of what he refers to as “libertarian hijacking” of certain national security issues, particularly surveillance reform. You can read his piece in full at the link above but here is the key section:

Instead, what strikes me as far more likely in the 114th Congress, especially if there is an open rift between the libertarian and centrist elements of the Republican caucus, is what I worried about last March–that national security policy will become increasingly prone to “libertarian hijacking,” where the wings align just long enough to (1) shift the terms of public debate to a contrived non-issue (e.g., using drones to kill Americans sitting peacefully at U.S. cafes); (2) extract some kind of wholly gratuitous concession from the government (e.g., no targeted killings of Americans peacefully sitting at U.S. cafes); and then (3) proclaim victory and depart the field without actually addressing the far harder question of U.S. policy (e.g., under what circumstances should targeted killings of terrorism suspects located overseas be authorized?). This was the precise result of the contretemps over the FY2012 National Defense Authorization Act (all of the attention focused on whether the statute authorized detention of U.S. citizens within the United States); and the “Stand-with-Rand” filibuster of John Brennan’s nomination to be CIA Director (targeted killings at domestic cafes).

Given the increase in both real and perceived power that Republicans in general–and libertarians in particular–will likely claim in the 114th Congress, libertarian hijacking seems a distinct possibility on a host of national security issues. Indeed, it may end up happening with surveillance reform. After all, it is entirely possible that libertarians will see the USA FREEDOM Act as the sum total of the surveillance reform that was necessary in response to the Snowden disclosures; while liberals, although decrying its inadequacies, will take the view that some reform is better than no reform. In the process, Congress will then accomplish nothing when it comes to (1) reform of oversight surveillance; (2) reform of the FISA Amendments Act; or (3) any effort to circumscribe the scope of collection under Executive Order 12,333. Instead, “surveillance reform” will amount to relatively modest changes to arguably the least invasive of the government’s surveillance authorities. And on topics unrelated to surveillance, it’s hard to see any better outlook for meaningful progress (whatever that is), absent some fundamental shift in the relationship between congressional Republicans and the White House.

So if we are to believe Vladek's argument, libertairan-leaning Republicans are simply striking a political pose when they offer amendments to annual defense spending bills to reign in NSA surveillance, as Justin Amash of Michigan did in 2013 with liberal Democrat John Conyers or as Tom Massie of Kentucky did with liberal Democrats Zoe Lofgren of California and my former boss, Rush Holt of New Jersey in June 2014. If that were true, why did the pro-Surveillance State House Republican and Democratic leadership work so hard to try to defeat those amendments? Becaue they knew none of the supporters–on either side–were engaged in a political stunt. It seems Vladek has a hard time believing that Members like Amash and Massie have core political values that they actually act on in the legislative process. I have no trouble believing it, because I worked with both men and their staffs on this very issue while I was on the Hill.

I also think that given the power of metadata to unmask the private lives, interests, and relationships of U.S. citizens when it is collected en mass by the federal government, it's disingenuous to describe Sec. 215 of the PATRIOT Act as the “least invasive” of the government's surveillance authorities. Ending the indiscriminate bulk collection of that data has rightly been the focus of privacy and civil liberties advocates inside and outside of government since Edward Snowden first revealed the abuses of the Sec. 215 program in 2013. The saving grace at the moment is the June 2015 expiration date for those authorities, and the very real political vice is now creates for Surveillance State proponents. In this fight, time is on the side reform advocates. May they use it well.

 

 

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A Change of Seasons and Careers

October 24th marks my final day as senior policy advisor to Rep. Rush Holt of New Jersey’s 12th Congressional District. When I joined his staff during the first week of August 2004, my first crisis as his communications director was fielding calls about then-Governor Jim McGreevey’s coming-out-turned-resignation. As Rush was in Israel at the time, I was very grateful to be able to tell journalists that I just couldn’t reach him because of the time zone differential. It was a memorable start to a more than 10 year run in the belly of the beast that is the United States House of Representatives.

In the history of the United States Congress, he is the only Member ever to hire a national security whistleblower (at least according to my friends at the Project on Government Oversight and the Office of the House Historian, who I consulted on the question a couple of years back). I will be forever grateful that he gave me a chance to return to government service, and even more for his effort to over turn the Surveillance State. The House–and the American people–are losing one of the greatest champions of the Fourth Amendment in modern history. It is my sincere hope that the other members of the progressive-libertarian House bipartisan alliance that this summer produced the first legislative victory for pro-liberty forces will pick up where he left off.

I will miss the House and its rhythms. Having spent literally one-fifth of my life on the Capitol campus, it will be an adjustment–but I’m hardly disappearing from public life. I’ll have more to say about that on or about November 3…and a lot more to say, on a daily basis, after that.

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And The Hit Job On The Late Gary Webb Continues

The recent release of the Jeremy Renner vehicle Kill The Messenger has, predictably, led some of the papers who attacked Webb’s work on the Dark Alliance series to resurface to resume their attacks on the deceased investigative reporter. Jeff Leen’s hitjob in the Post took a familiar approach: claim superior knowledge of the subject, then denigrate the weak points in the opponents story while ignoring the elephant in the room.

What’s most interesting about Leen’s piece is not what’s in it, but what is not. A few examples will help illustrate the point:

Marc Cooper of the LA Weekly told Schou in the book Kill The Messenger that “If Gary Webb made mistakes I have no problem with exposing them. But given the sweep of American journalism of the past fifty years, this is an outstanding case where three of the major newspapers in the country decided to take out somebody, a competitor whose mistakes seem by any measure to be very minor.”

Very minor, given the Post’s boostership of the 2003 Iraq war with its “reporting”.

Dawn Garcia, Webb’s immediate editor at the Mercury News during the “Dark Alliance” series and its aftermath, told Schou that “Two years after that series ran, a CIA Inspector General’s report acknowledged that the CIA had indeed worked with suspected drug runners while supporting the contras. The IG report would not have happened if ‘Dark Alliance’ had not been published.”

And then of course, there are the files of the LA County Sheriff’s department records on Ronald Lister (an arms merchant) and his ties to CIA and Reagan administration officials, including Oliver North. Schou’s elucidation on Lister is too lengthy to quote here, but it is damning.

There are many more such examples I could cite, such as how the CIA worked the press behind the scenes to smear Webb and his reporting, but I think these are more than sufficient to support what others have said: that the Post, LA Times and NY Times got scooped by a medium-sized paper in California by a reporter who went were they refused to go. They just couldn’t get over it then, and it seems things haven’t changed very much since “Dark Alliance” was published in 1996.

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On Ending The Surveillance State

Some fresh musings on Medium

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CNN, Anonymous Sources, And Fear Hyping

This is “breaking news” according to CNN:

The U.S. government has warned airlines to pay particular attention to the possibility of terrorists attempting to hide explosives in shoes.

The officials stressed there is no specific threat or known plot.

Intelligence collected by the United States and other countries has indicated terror groups have been working on new shoe-bomb designs, the sources said.

No actual working device involved in a real/developing plot. Just anonymous “sources” peddling speculation offered as “intelligence”.

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NSA And “Turnkey Totalitarianism”

From the speech given at MIT yesterday by former U.S. Ambassador to Saudi Arabia Chas Freeman:

Mr. Snowden has brought home to us that, while we Americans do not yet live in a police state or tyranny, we are well along in building the infrastructure on which either could be instantly erected if our leaders decided to do so.  No longer protected by the law, our freedoms now depend on the self-restraint of men and women in authority, many of them in uniform.  History protests that if one builds a turnkey totalitarian state, those who hold the keys will eventually turn them.

The punch line paragraph from a brilliant speech.

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