What’s Sexy Now? Obama, Surveillance and Civil Liberties
By Dennis Loo (11/3/12)
On October 18, 2012 Obama responded to Jon Stewart’s inquiry on The Daily Show about his administration’s carrying forward Bush’s surveillance policies over all of us.
“We have modified them and built a legal structure and safeguards that weren’t there before,” the president said. “Now, they’re not real sexy issues.”
Stewart replied: “You don’t know what I find sexy.”
What did Obama mean by saying the issue is no longer “sexy”?
He says that he’s built legal safeguards into the government’s warrantless universal surveillance.
But how does the surveillance over all us without warrants have legal safeguards built into it? Isn’t this a contradiction in terms: you’re tracking everyone without having cause to do so, so how can that be legal? Isn’t the law supposed to be the enforcement of those who violate the law? If you’re spying on and collecting information from and about everyone, how can legal structures be erected around it to render it legal?
Does Obama mean to say that there are legal safeguards over how this information might be used by the government? If so, this would make more sense.
But consider this: the Obama Administration in 2009, soon after taking office, declared for itself the right to “sovereign immunity,” going further than even Bush dared.
[T]he Obama DOJ demanded dismissal of the entire lawsuit [brought by the Electronic Freedom Foundation in October 2008 against the government for its warrantless spying on Americans] based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.
In other words, beyond even the outrageously broad "state secrets" privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they "willfully disclose" to the public what they have learned.[i] [Emphases in original.]
In 2010, Obama publicly targeted an American citizen, Anwar Al-Aulaqi, for assassination. The ACLU, on behalf of Al-Aulaqi’s father, filed suit attempting to prevent his son’s assassination and to reverse the precedent that allowed a US president to act as judge, jury, and executioner of someone who has merely been accused. The Obama DOJ replied that Al-Aulaqi’s father’s fear for his son’s life was not credible: the allegations that Al-Aulaqi had been targeted for killing are “entirely speculative and hypothetical [and] plaintiff cannot demonstrate that he faces the sort of real and immediate threat of future injury,”[ii] that the evidence against Al-Aulaqi could not be examined because the president declared it to be “national security secrets,” and that the executive branch’s decision to target Al-Aulaqi was a “battlefield” decision and should not be subject to supervision by the judicial branch:
“It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.” Chicago & Southern Air Lines, 333 U.S. at 111. “Judges deficient in military knowledge, lacking vital information upon which to assess the nature of battlefield decisions, and sitting thousands of miles from the field of action” cannot reasonably review the lawfulness of a an alleged military or intelligence operation. Dacosta, 471 F.2d at 1155; see also Schneider v. Kissinger, 412 F.3d 190, 196 (D.C. Cir. 2005) (“Unlike the executive, the judiciary has no covert agents, no intelligence sources, and no policy advisors. The courts are therefore ill-suited to displace the political branches in such decision-making.”). That resolution of plaintiff’s claims would put at issue the Executive’s confidential military, intelligence, and diplomatic information, including information concerning the threat posed by a foreign organization against which the political branches have authorized the use of all necessary and appropriate force, whether that threat is imminent or concrete, whether there are reasonable alternatives to lethal force, and how such actions may affect relations with a foreign state, is further evidence that plaintiff raises non-reviewable political questions. . . .
It should therefore be apparent that to litigate any aspect of this case, starting with the threshold question of whether plaintiff has in fact suffered any cognizable injury that could be remedied by the requested relief, would require the disclosure of highly sensitive national security information concerning alleged military and intelligence actions overseas. For this reason, the Secretary of Defense, the Director of National Intelligence, and the Director of the CIA have all invoked both the military and state secrets privilege, and related statutory protections, to prevent disclosures of information that reasonably could be expected to harm national security. Absent the privileged information, the case cannot proceed.[iii]
These are the words of the administration that came into office claiming that Bush and Cheney were violating the Constitution and promising to change that.[iv] Let us assume for the sake of argument that Al-Aulaqi really is a bad guy. Allowing a president to order someone’s assassination, even a really bad individual, without any trial and without any supervision, means that any president, those that you like and those that you do not, those that you trust and those that you do not, those who have no problem with you and those who regard you as a dire political opponent, can simply order you eliminated. That is why the legal system’s philosophical linchpin is that no one is above the law. (Pp. 208-210)
Sovereign immunity, according to the Obama legal eagles that are now safeguarding us, unlike during those bad Bush years, thus means that unless someone can prove that the government has deliberately released information that the government gathered about them and that the government did it in order to harm them, the government is immune from any legal actions brought by citizens and foreign nationals against it. This does not sound like a legal structure with built in safeguards unless what Obama meant by those phrases was that there was a legal structure being built with legal safeguards to protect government from being sued by the citizens for its violations of their rights.
Obama’s only modification to Bush’s felonious surveillance policies has been to a) repackage them as having a legal structure and safeguards (something that Bush also claimed, although in a more clumsy manner rhetorically than Obama) and to b) let the governmental spies loose completely to create the wet dream of government snoops: Total Information Awareness, the center for which is being built in Utah as we speak. Congress tried to block TIA under Bush, discontinuing funding of it, to which Bush responded by merely renaming it and hiding it inside of the federal government’s web of spy agencies. What Obama has done, therefore, is analogous to what Bush did: rename it. But he further has given it the green light to build the physical apparatus to carry this wet dream forward.
By repackaging massive warrantless surveillance rhetorically, Obama has thereby rendered them less “sexy.” This goes to the heart of how Obama operates: he rebrands that which was unacceptable to many and gets people to go along with what they should not go along.
There is another dimension to this: describing the wholesale violation of civil liberties and the right to privacy as less “sexy” is akin to saying that rape, repackaged as something other than rape, is now less “sexy.”
This is the Obama version of Rep. Todd Akin’s famously ignorant remark that in cases of “legitimate rape,” women can will themselves to not get pregnant.
Ergo: call it something else, something other than what it actually is. That is all you need to do. This is what Obama is so good at: renaming something so that he builds a rhetorical structure around his egregious policies so that his violations of the law are seen as less “sexy.”
This is why I have written that
The momentousness and virulence of Obama's legacy cannot be overstated: he has completed the rupture from the rule of law and unaccountability that Bush and Cheney pioneered so spectacularly. By refusing to prosecute Bush and Cheney's numerous crimes - not only their violations of domestic and international law with aggressive wars and torture et al and their ubiquitous and warrantless surveillance, but their repeated overruling of Congressional intent and laws - he has legitimated those lawless and tyrannical actions. He has made them the new norm. Not only, however, has he legitimated them and thereby greased the path for every subsequent president who does the same and worse, but he has himself forged forward in the reactionary direction of Bush and Cheney and gone even further than they dared. As he has done this, he has covered it all under the thick coat of honeyed words and shameless deceitfulness and through his skillful two-faced presentation of self won over those who otherwise resisted these same horrid behaviors when they were being committed by Republicans.
If you vote for Obama you are, whether you consciously intend to do so or not, legitimating these egregious and profoundly consequential violations of the rule of law and civil liberties because when you vote for him you are voting for what he has done and what he stands for: the insidious undoing of core civil liberties.
What about those who say: “But I have nothing to hide and if spying on all of us helps the government prevent another 9/11, then I am ok with it”?
The government’s justifications for its universal surveillance are not consistent with an anti-terrorism strategy and actually actively undermine anti-terrorist efforts.
Why do I say that?
I address this question extensively in Globalization and the Demolition of Society. Here are some parts of that analysis:
Terror, whether state sponsored or anti-state in nature, represents the deliberate use of unbounded violence, including the use of torture and the deaths of innocents and many of one’s opponents. The indiscriminate use of violence upon others, indeed, is a necessary and inevitable component of terror. It is one of the sources of its efficacy (such as it is): one is supposed to surrender to those who use terror because one could easily be the next arbitrarily and capriciously chosen victim.
Terror’s indiscriminateness is a major source of its counter-productiveness as well. People who are collateral victims of state and anti-state terror will turn against terrorists, whichever one they are the victims of.
[I]nstead of confining terrorists, Guantanamo often produced more of them by rounding up common criminals, conscripts, low-level foot soldiers and men with no allegiance to radical Islam -- thus inspiring a deep hatred of the United States in them -- and then housing them in cells next to radical Islamists. . . .
Alberto J. Mora, Former General Counsel, United States Navy, in testimony before the Senate Armed Services Committee on June 17, 2008, stated as follows:
Mr. Chairman, our Nation’s policy decision to use so-called 'harsh' interrogation techniques during the War on Terror was a mistake of massive proportions. It damaged and continues to damage our Nation in ways that appear never to have been considered or imagined by its architects and supporters, whose policy focus seems to have been narrowly confined to the four corners of the interrogation room. This interrogation policy – which may aptly be labeled a 'policy of cruelty' – violated our founding values, our constitutional system and the fabric of our laws, our over-arching foreign policy interests, and our national security. The net effect of this policy of cruelty has been to weaken our defenses, not to strengthen them, and has been greatly contrary to our national interest. . . .
All of these factors contributed to the difficulties our nation has experienced in forging the strongest possible coalition in the War on Terror. But the damage to our national security also occurred down at the tactical or operational level. I’ll cite four examples:
First, there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantanamo. And there are other senior officers who are convinced that the proximate cause of Abu Ghraib was the legal advice authorizing abusive treatment of detainees that issued from the Department of Justice’s Office of Legal Counsel in 2002.[vi]
Terrorism’s indiscriminateness is not a product of poorly trained personnel or something that could be adjusted with the proper motives and leadership; it is a fundamental characteristic of anti-state and state-sponsored terrorism and an extension of its logic.
The Impossibility of “Surgical Strikes”
The viciously counter-productive effects of the security state’s policies have their analog in medicine: the application of antibiotics to kill bacteria produces bacteria that mutate into more virulent forms to negate the antibiotics. Our bodies’ own immune systems and abilities to cope with the ubiquitous presence of unfriendly bacteria are hampered and weakened by the overuse of antibiotics and antiseptics that kill friendly and unfriendly bacteria alike. For unfriendly bacteria, as Nietzsche famously stated more generally, that which doesn’t kill you makes you stronger. And as Israel learned (or, more correctly, still has not learned) from its brutal invasion of Lebanon in 1982, their efforts at wiping out the Palestine Liberation Organization (PLO) once and for all, in the course of which they unleashed the massacres of Sabra and Shatila in which defenseless Palestinian men, women, and children were systematically slaughtered, only succeeded in creating a more militant and more intransigent opposition in the form of Hezbollah. Israel, in other words, inadvertently created Hezbollah and fostered their suicide bomber tactic. (Pp. 211-214)
The anti-terrorism measures employed by the White House are not just dramatically counter-productive; their anti-terror measures appear to be designed primarily to repress and control the US population and the people of other countries. As PBS’s 2007 Frontline show, “Spying on the Home Front” chronicled,
On New Year’s Eve weekend  the FBI demanded records from all hotels, airlines, rental car agencies, casinos and other businesses on every person who visited Las Vegas in the run-up to the holiday. Stephen Sprouse and Kristin Douglas of Kansas City, Mo., object to being caught in the FBI dragnet in Las Vegas just because they happened to get married there at the wrong moment. Says Douglas, “I'm sure that the government does a lot of things that I don't know about, and I've always been OK with that -- until I found out that I was included.” A check of all 250,000 Las Vegas visitors against terrorist watch lists turned up no known terrorist suspects or associates of suspects.[vii]
Here is the problem with this event: If you were a terrorist planning a dramatic terrorist attack upon Las Vegas, would you register in a hotel or rent a car in your real name in the days leading up to New Year’s Eve? Would you not place some people in the Las Vegas area months or even years ahead of time and have them working and/or living in the town under pseudonyms? Does the FBI not realize this? Of course they do. That is why the unconstitutional demand for all of the names of all of the visitors to Las Vegas that weekend was in all probability a test—to see if the FBI could obtain the compliance of Vegas businesses to their demands, and to set a precedent for future incursions into business and private records. As another segment in the Frontline show relates, “Peter Swire, a law professor and former White House privacy adviser to President Clinton, tells FRONTLINE that since 9/11 the government has been moving away from the traditional legal standard of investigations based on individual suspicion to generalized suspicion. The new standard, Swire says, is: ‘Check everybody. Everybody is a suspect.’”[viii] (Pp. 207-208)
One expression of this universalization of public order policies can be seen in the development and growth of “intelligence fusion centers.” Fusion centers gather government and private intelligence in one place based on the rationale that the response to terrorism requires an unprecedented degree of data collection and surveillance. In June 2009, DHS recognized some seventy-two fusion centers nationwide. As stated by one of its advocates:
Signs of Cold-War-era threats to national security—troops massing, submarines departing, and missile launchers where they weren’t before—were easier to detect than today’s more subtle indicators of terrorist activity. Emerging terrorist threats can hide in plain sight on our own soil, scattered among millions of driver’s license applications and bank transfers or amid tourists snapping photos of national icons. In this new environment, vigilance is everyone’s job, and the tasks of vetting, analyzing, and sharing information about threats can’t be left to the federal government alone.[ix] [Emphasis added.]
This article goes on to cite the words of the New Jersey Regional Operations Intelligence Center’s director Richard Kelly: “We want to be able to search everything, so we could see if Mohammed Atta ever got a parking ticket in Roselle. You can’t connect the dots if you can’t see them.” Kelly is arguing for the viewpoint that underlies the advocates of the national security state: more information, and ideally total information, will give us the power to prevent undesirable events from occurring.[x]
In each and every known terrorist incident—beginning most famously with the tracking of the 9/11 conspirators before 9/11 through the Nigerian student Umar Farouk Abdul Mutallab’s unsuccessful attempt to blow up a Northwest flight on Christmas Day 2009—there was no shortage of information. The dots were there to be connected, and in the case of 9/11 some people connected them, such as Counterterrorism Czar Richard Clarke and FBI Agent Coleen Rowley; but they were stymied by those above them and, in Clarke’s case, those below him as well. As Matthew Aid, an intelligence historian, observed after the Abdul Mutallab incident, the NSA receives four times as much data every day as is held in the Library of Congress.[xi] The intelligence community is, in other words, drowning in data.
In the aftermath of the embarrassing failure to bar Umar Farouk Abdul Mutallab from boarding his flight, Obama decried the failure to connect the dots and called for accountability to ensure they would be connected in the future. Obama’s directive, however, does nothing more than reiterate the directives of his predecessors. The DHS and the Counterterrorism Center created after 9/11 were supposed to centralize information and allow the threads of intelligence to be recognized as patterns in order to correct the supposed failure to do so prior to 9/11. Moreover, as ex-senior CIA analyst Ray McGovern points out, the CENTRAL Intelligence Agency was supposed to do the very same thing decades ago in the wake of the surprise attack upon Pearl Harbor. “Been there, done that.” More information than ever is now being collected, more agencies and personnel are charged with collecting information, redundancies have been deliberately built into the system in order to improve the likelihood that at least one agency or even one agent will sound the alarm, agencies are sharing information a bit more, more money in the tens of billions is being shoveled into security, and civil liberties are being violated in unparalleled ways, and yet. . . they are still failing in their appointed tasks. How can this be?
“I’m Mohammed Atta.” “No, I’m Mohammed Atta.” “No, I’m Mohammed Atta…”
More information is not necessarily better, and in these instances there is obviously far too much irrelevant information. How can there be too much information? If you have too much data, then connecting dots becomes extremely difficult because you have too many possible threads to perceive and millions upon millions of irrelevant data points obscuring those threads. It is like trying to find multiple needles in a haystack while haystack after haystack after haystack is being dropped on you in an avalanche of hay. Obama and the bureaucracies’ efforts to approach total information awareness are doomed to fail again and again because they are based on an incorrect premise.
The notion that knowing that Mohammed Atta got a parking ticket somewhere will somehow send off alarm bells assumes that you have already determined that Atta is someone to whom you have to pay particular attention. What good would it have done to know that he got a parking ticket in Roselle, even if he was already known to be a terrorist, which he was? If you have a list of more than half a million people that are possible suspects (as the US government had as of late 2010) with the list growing longer every day, this task of focusing on the next Atta becomes more difficult than ever. You have to make choices all along the way about what is relevant information and what is not. As you amass more and more irrelevant information, you make it more difficult, not easier, to determine what is relevant and what is noise.
Moreover, US policies that provoke more and more people into opposition to them are creating a cacophony of threatening noise. Public order policies that track and observe everyone as a potential suspect foster greater and greater levels of pure noise. The noise is deafening because the potential terrorists are everywhere, and by their very nature and magnitude they are impossible to identify and track. Carrying out “national security” in this manner is like going out into a growing hurricane and trying to determine which flying objects are going to hit you and when. If what you are doing is fostering the hurricane in the first place, as the Bush White House did in ignoring global warming and weakening New Orleans in the face of a storm, then you better stop doing those things or you are inviting disaster. The insistence that everyone is a potential problem and that more information about everything is better means that actual terrorist plots are being covered up by avalanches of useless and irrelevant information. It is like taking a gourmet meal prepared by a four-star restaurant and mixing it with tons and tons of garbage. Now, your challenge is to find the haute cuisine in that pile of stench.
The overriding problem here, however, is not the plethora of unusable and illegitimately obtained information about all of us, as insuperable as that problem is. Even if that problem did not exist, there would still be a larger problem: intelligence failures do not discredit the existing policies of ubiquitous surveillance, war, occupations, indefinite detentions, torture, assassinations, and drone attacks. Failures of intelligence promote and justify the existing policies that are supposed to prevent terrorism. The longer the US goes without another successful or abortive terrorist incident, the harder it becomes to justify the security state’s measures. Thus, the security state has a stake in having at least some anti-state terrorist incidents occur. This is the security state’s dirty little secret.
When the dominant paradigm is the “War on Terror” and when the gains to be had from continuing this war are as extraordinary as they are—booty in the trillions of dollars overall and the reins of political power of an empire—then any strategically placed individual or group could take advantage of this condition by suppressing information about an upcoming terrorist incident, by allowing an incident to happen that could have been prevented, or by manufacturing a fall guy to carry out an attack, and get away with it. The GOP, Democrats, and the mass media, after all, have ruled raising questions about the wisdom or effectiveness of the “anti-terrorist” measures out of order. The traditional safeguards, such as the separation of powers that are supposed to prevent such a cynical ploy from being carried out have been eliminated.
If this sounds hard to believe, consider the fact that Bush and Cheney were caught red-handed fabricating the WMD excuse to invade Iraq, and they were still not impeached. They were caught red-handed torturing people, at least one hundred of them to death, and they were still not impeached or prosecuted.[xii] They were caught red-handed spying on every single American in felonious violation of the law, including every senator, congressperson, prosecutor and judge, and they were still not impeached or prosecuted. If these transgressive acts were not punished but were retroactively approved with their underlying excuses endorsed by both major parties, then it should be no surprise that these policies would then continue. Is it any wonder, then, that Obama has been continuing their policies and in some very important respects going even further? The wonder would be if he actually attempted to put a stop to it all. (Pp. 150-153)
What’s sexy now?
Sexy would be for more and more people to step forward and call Obama out on what he’s been doing and what he actually stands for. This would help to create an opening for an entirely different kind of political atmosphere to unfold.
That is my idea of sexy.
[i] Glenn Greenwald, “New and Worse Secrecy and Immunity Claims from the Obama DOJ,” Salon.com, April 6, 2009, http://www.salon.com/news/opinion/glenn_greenwald/2009/04/06/obama, accessed February 14, 2011.
[ii] “[T]he relief he [Plaintiff] seeks is based on unfounded speculation that the Executive Branch is acting or planning to act in a manner inconsistent with the terms of the requested injunction. Because such allegations are entirely speculative and hypothetical, plaintiff cannot demonstrate that he faces the sort of real and immediate threat of future injury that is required in order to seek the relief he is requesting. Moreover, the declaratory and injunctive relief plaintiff seeks is extremely abstract and therefore advisory—in effect, simply a command that the United States comply with generalized standards, without regard to any particular set of real or hypothetical facts, and without any realistic means of enforcement as applied to the real-time, heavily fact-dependent decisions made by military and other officials on the basis of complex and sensitive intelligence, tactical analysis and diplomatic considerations.” From “Opposition to Plaintiff’s Motion for Preliminary Injunction and Memorandum in Support of Defendants’ Motion to Dismiss,” pp. 2-3, at Scribd.com, September 25, 2010, http://www.scribd.com/doc/38129561/Aulaqi-v-Obama-DOJ-Main-Brief, accessed February 16, 2011.
[iii] “Opposition to Plaintiff’s Motion for Preliminary Injunction and Memorandum in Support of Defendants’ Motion to Dismiss,” in the Matter of Nasser Al-Aulaqi, on behalf of Anwar Al-Aulaqi v. Barack Obama et al, Civ. A. No. 10-cv-1469 (JDB), filed September 25, 2010, in the US District Court for the District of Alabama, available at Scribd.com, http://www.scribd.com/doc/38129561/Aulaqi-v-Obama-DOJ-Main-Brief, accessed February 16, 2011.
[iv] Obama’s pledge to assassinate Al-Aulaqi has been reported by numerous mainstream media outlets such as the New York Times and ABC News and confirmed by Obama’s Director of National Intelligence Adm. Dennis Blair in Congressional testimony. Glenn Greenwald summarizes this in his column, “Confirmed: Obama Authorizes Assassination of U.S. Citizen,” Salon.com, April 7, 2010, http://www.salon.com/news/opinion/glenn_greenwald/2010/04/07/assassinations, accessed April 7, 2010.
[v] Tom Lasseter, “Day 3: Militants Found Recruits Among Guantanamo’s Wrongly Detained,” McClatchy Newspapers online, June 17, 2008, http://www.mcclatchydc.com/detainees/story/38779.html, accessed March 3, 2009.
[vi] Ali Frick, “Mora: Abu Ghraib and Guantanamo are ‘First and Second Identifiable Causes of U.S. Combat Deaths in Iraq,’” ThinkProgress.org, June 17, 2008, http://thinkprogress.org/2008/06/17/mora-abu-ghraib-and-guantanamo-are-first-and-second-identifiable-causes-of-us-combat-deaths-in-iraq/, accessed July 2, 2009.
[vii] “Spying on the Home Front,” PBS: Frontline, PBS.org, May 15, 2007, http://www.pbs.org/wgbh/pages/frontline/homefront/view/, accessed October 11, 2011.
[ix] Joseph Straw, “Fusion Centers Forge Ahead,” SecurityManagement.com, October 2009, http://www.securitymanagement.com/article/fusion-centers-forge-ahead-006223, accessed on January 9, 2010.
[x] “Using programs with Orwellian names, such as Carnivore, MATRIX, Talon, Eagle Eyes, and Total Information Awareness, the administration is exercising an unprecedented level of power over citizens’ lives.” Barbara Bowley, “The Campaign for Unfettered Power,” in Impeach the President: the Case Against Bush and Cheney, ed. Dennis Loo and Peter Phillips (New York: Seven Stories Press, 2006), 167.
[xi] As quoted in Scott Shane, “Shadow of 9/11 Is Cast Again,” NYTimes.com, December 31, 2009, http://www.nytimes.com/2009/12/31/us/31intel.html?_r=3&;th&emc=th, accessed December 31, 2009.
[xii] Glenn Greenwald, “The Suppressed Fact: Deaths by U.S. Torture,” Salon.com, June 30, 2009, http://www.salon.com/news/opinion/glenn_greenwald/2009/06/30/accountability, accessed February 14, 2011.