Monthly Archives: June 2013

The Obama Administration’s Role in Windsor (guest post)

Amidst the blur of reaction and analysis of Windsor [the recent Supreme Court decision that threw out the Defense of Marriage Act (DOMA), a federal law enacted by Congress in 1996 that allows states to refuse to recognize same-sex marriages performed under the laws of other states – editor] upon its release yesterday, I didn’t hear or see any discussion of Obama’s role in setting up the posture of this case.

“Although “the President . . . instructed the Department not to defend the statute in Windsor,” he also decided “that Section 3 will continue to be enforced by the Executive Branch” and that the United States had an “interest in providing Congress a full and fair opportunity to participate in the litigation of those cases.” Id., at 191–193. The stated rationale for this dual-track procedure (determination of unconstitutionality coupled with ongoing enforcement) was to “recogniz[e] the judiciary as the final arbiter
of the constitutional claims raised.” Id., at 192.”

By clearly delineating the roles of the branches thusly, the administration forestalled any reasonable argument the Court could have made to avoid deciding the case on its merits on the grounds that it would be undue judicial activism. The President made his position clear, and by having Congress, as the voice of the citizenry, defend the Act, the President forced the judiciary to fulfill its role.

Windsor is a powerful precedent and represents a generational step forward for civil rights in our country; it will be analyzed, discussed, and applied for years. I just want to point out the deftness of Obama’s handling of the issue. It employed a nice balance of moral persuasion with a proper understanding of the separation of powers in the Federal government, and it was done quietly, in the background. I just hope history affords Obama the credit he is due for making the Federal government work as it was intended to work.

The Ugly Truth is Still the Truth


John Bolton and Dick Cheney have joined forces again to proclaim that those who tell the truth about American wrongdoing are hurting their country. They are two of the most prominent “experts” that have recently attacked Edward Snowden for having the audacity to inform us that the NSA is collecting information from all of our internet and phone communications. According to these experts the ugly truths about the NSA “tar the U.S. with Beijing’s brush.” The message of the “experts” seems to be that you should never let the world know when your country is acting like a tyrannical country because the world might conclude from the evidence that governments which act alike ARE alike. The unspoken premise of such two faced standards is that everyone knows that we are so special that when our government defecates it does not really stink the way it would if it were some other government defecating. This is an old tune that both Dick Cheney and John Bolton have made careers playing.

Remember when the American people and the world needed to be convinced that Iraq had to be conquered to save the world from a future attack? If anyone failed to agree, then Vice President Cheney and Ambassador to the United Nations Bolton gave the dissenter the ugliest labels they could find or invent. When the United Nations failed to fully subscribe to the notion that Iraq had “weapons of mass destruction” Bolton pronounced the institution irrelevant, although it was his job to represent his country as its diplomat to that institution. When another American diplomat reported that there was no evidence that Iraq had obtained high grade uranium for building nuclear weapons, the Vice President’s office (through his right hand man, Scooter Libby) simply leaked the diplomat’s wife’s job as a CIA agent. Bolton’s actions was almost unbelievably undiplomatic, to the point of giving America’s critics the opportunity to paint America with the same brush as other UN flouters. Cheney’s staffer committed an act which was both a breach of national security and a criminal act. So guess what these fellows are saying now about Edward Snowden’s disclosures? You got it! Snowden is said to be damaging America’s image abroad by criminally leaking national security information.

Before we worry too much about the current fears of Cheney and Bolton, we should remember the consequences of their advice the last time they took action to allegedly protect our national security. Their excuse for the invasion of Iraq was as false as it was illegal. There were no threatening weapons of mass destruction (labelled WMD to simplify the practice of making interminable references to these nonexistent threats). The excuse was false. There was no basis in international law for subjugating another sovereign nation merely because it possessed any kind of weapon. The excuse was illegal.

A decade ago when he was the Vice President, Dick Cheney, then the immediate past CEO of this country’s most profitable private war contractor, Halliburton, helped to lead this country into a trillion dollar war that cost well over one hundred thousand lives and more than a trillion taxpayer dollars. John Bolton pushed for the same war and attacked the patriotism of anyone who opposed. That past CEO and others like his buddy Bolton hijacked the good will that a shocked world was ready to extend to the country after it was attacked on 9-11. Instead of using that good will to forge a world wide alliance against terrorism, these self- styled neoconservatives mounted an inexcusable war for control of the Iraqi oil fields. While they were thereby damaging their nation and the rule of international law, which they led us to flout shamelessly, they whined. According to them anyone who resisted their leadership lacked patriotism and courage. Never mind that the only job either of them ever had within the U.S. armed services was Cheney Secretary of Defense role during the wars of the first Bush presidency. Unless you count Bolton’s stint in a national guard unit, which he admittedly joined to avoid going overseas to the Vietnam War he had been touting.

John Halford, on the other hand, has no past tainted by either deceit or the kind of cowardly bullying that characterizes the likes of Cheney or Bolton. His very thoughtful contributions to this blog defend the NSA by arguing that Americans may be safer as the result of the kind of internal spying that Edward Snowden has revealed. He has listed a string of American government actions alleged to protect the country in the past. He states that “our country has a long tradition of doing what it has to in order to protect American, sometimes even stretching the law to its limits.” His list of illustrations on this point are instances in which I would argue the U.S. government has behaved in an extremely tyrannical manner. I would also argue that these government actions should warn rather than console.

Consider my learned friend Halford’s list of pre 9-11 government actions: (1) The Alien and Sedition Act of 1798 which led to the deportation of aliens who favored American support of French revolutionaries and the prosecution of Americans who criticized their government. These actions led to the downfall of the Federalist Party after many Americans recognized and denounced this government assault on open political speech and thought. (2) Abraham Lincoln’s suspension of habeas corpus and the imprisonment without due process of Southern sympathizers in Maryland. These actions did not appreciably help the union cause in any way, tarnished Lincoln’s otherwise great record of championing freedom, and may have contributed to the particular personal hatreds that led to Lincoln’s assassination by a Marylander, John Wilkes Booth. (3) The Espionage and Sedition Acts of 1917 and 1918 “which provided for severe penalties for any speech, statement or article criticizing the government in wartime,” to quote Mr. Halford’s accurate description of the repressive measures which resulted in injustices that included the imprisonment of the popular American labor leader, Eugene Debs. These acts sullied the ideals of our society while inflicting cruelties on pacifists whose only crime was, as Oliver Wendall Holmes pointed out, that they believed more firmly in the Sermon on the Mount than most of their fellow American Christians. (4) Mr. Halford also cites for, consideration the internment of thousands of Japanese Americans without charges or habeas corpus rights. All of these instances form the beginning of a litany of wrongs the government has visited on innocent civilians, always in the name of national security. They form the opening fact recitation for concern about the future of government spying; they do not make an argument for Americans trusting that their government should be trusted to spy on them for their own good. These incidents Mr. Halford considers are only a few of many official abuses of Americans by their government, warnings that Mr. Snowden is doing us a great service by exposing the enormous surveillance programs the government has tried to keep secret.

Many of us have apparently still not learned that there is a moral law at work in the affairs of nations as well as individuals. From the ancient prophets of Israel to the American warnings of Henry David Thoreau, Martin Luther King Jr and Chris Hedges there have been those who have warned that history does not play favorites. Those who choose dishonest means of accomplishing their goals must one day find themselves snared in their own lies. An aunt of mine used to recall the admonition of the Bard: “Oh what tangled webs we weave when first we practice to deceive.”

We have been warned long before Mr Snowden’s revelations that the National Security Agency was going far beyond legal or proper bounds in collecting massive amounts of information about our private lives. A reply to an earlier posting on this subject has pointed out that the USA TODAY has run a front page article recently. That article detailed the names and ranks of senior members of the NSA surveillance operation; it also revealed in interviews with them how and when they had tried to raise concerns about these surveillance improprieties, how they had been rebuffed and humiliated for suggesting that we the people must consent or refuse the actions of our government. As Mr. Stephen Dillard demonstrated in his reply, the warnings have been more than ignored; they have been punished while the secretive practices of private contractors and agency operatives continued to collect information about us. No attention was payed to these warnings until Snowden accompanied them with documentary proof.

We have been asked to hate the messenger and to forget the message, to believe that a wrong must be measured differently if done by Americans or to Americans. But that is asking us to believe that the moral laws of the universe are not universal. We are asked to believe the universe has us as its exceptions. There are no exceptions. But I bet you already knew that.


Reactions to Revelations of Ubiquitous Government Spying

On June 6, 2013 the Guardian and the Washington Post began reporting on disclosures by a former employee of a private security firm. Eric Snowden, a twenty nine year old with fewer than twelve years of formal schooling, had contacted several reporters from these venerable newspapers to arrange to give copies of top secret documents detailing surveillance programs of the National Security Agency (NSA). These documents showed a pattern of systematic and secret government surveillance of many millions of American citizens. Those Americans targeted by the Agency included everyone who uses a cell phone or the internet. The government has been secretly watching virtually every Americans, as well as any foreigners with whom we may have had electronic contact. All of the information obtained has been carefully stored for future use whenever bureaucrats of the NSA secretly deem using it good.

All of this activity used to be called spying, intruding, and snooping. No polite verb has yet been advanced to euphemize these secret intrusions, but I am betting that “surveilling” will become a household word soon. This activity has been justified as necessary to protect the persons whose privacy has been secretly invaded. The President has said as much. His administration has given every indication that it will go after Mr. Snowden as though he were public enemy number one. This is the same administration which has recently tried to dodge explaining why it has been secretly wiretapping the phones of dozens of news reporters.

The President reluctantly admits this might be a good time for the American people to finally have a discussion about the government secretly spying on them. So why just now? If the President acknowledges that we deserve an opportunity to participate in the decision-making process, what possible excuse can he have for preventing our participation for half a decade? Apparently the executive branch of government is not willingly going to allow our participation at all. The White House assures us that a court and several congressional committees have been protecting us from any possibility of abuse. We are in effect being told the system of checks and balances our Constitution created is in operation to prevent any executive excesses. We are to look to the judiciary and to congress for effective actions which allay our fears of tyranny by the executive. I have looked but I have not found.

The court that is allegedly protecting us is the FISA Court, created after 9/11 to pass upon government applications for secret warrants to do to suspected foreign bad guys what it has been doing to all of us. FISA is the anagram for Foreign Intelligence Surveillance Act. I hasten to point out that I have had all of my internet use secretly recorded and my phone calls monitored, but I have never made a call, trip or email to any foreign place or person. The court that is supposed to protect me from abuse has approved this patent abuse of my privacy. But I do not feel that I have been singled out in any way. So far the government has applied for secret warrants over 33,000 times and failed to get the court’s approval only 11 times. For every three thousand requests to invade one or more person’s privacy in what would be an illegal manner without secret approval, all but one has been approved by the court. To call this court a government rubber stamp would be an understatement.

Well that still leaves the congressional watchdog committees that are presumably looking after citizen concerns for privacy. Senator Feinstein of California, a liberal Democrat from California and Chairwoman of the Senate Select Committee on Intelligence, defended all of the secret spying by testily pronouncing that “It’s called protecting America.” That four word phrase is her response to any worries I might have about these intrusions; it also implies that I do not care about my country if I have qualms about the government spying on me. She has obviously known about this stuff for many years. So if she has been watching this go on for a long time and kept it secret, who am I to worry, right?

Maybe I am more comfortable with the idea that the Senate is looking after my privacy concerns if it has a vocal Republican member of one of these committees. So there is Lindsey Graham of South Carolina. He is a staunch NRA supporting conservative and about as anti-liberal as Ronald Reagan. Senator Graham is a member of another one of those Congressional committees (Defense) that is supposed to be watching the NSA and other intelligence-gathering agencies to make sure they are not doing improper things like secretly spying on innocent Americans. But he is already echoing the judgment of Dick Cheney that Robert Snowden is a criminal and a traitor. The conservative Senator has used this occasion to announce that it might be a good idea for the government to resume censoring our mail. He opines that censorship was good enough for World War II, so it just might be necessary for the War on Terror.

Come to think of it, I believe Lindsey Graham and Barbara Feinstein were members of watchdog committees in 2003 when national intelligence agencies misinformed them and the rest of us about alleged “weapons of mass destruction”. Both Senators used that faulty intelligence to justify votes for launching and continuing a disastrous war in Iraq. Presumably they both also have learned about such past dubious activities of the U.S. official intelligence services as the assassination program that secretly murdered tens of thousands of Vietnamese, the atrocious record of failure to alert this country to danger and the practice of secret operations which created greater danger, and the destruction of the democratic governments in Iran and Chile. All of these activities might have served as warnings to many currently concerned Americans, but they do not bother the likes of Senators Feinstein or Graham.

Americans deserve to know what their government is doing to Americans. The survival of their democratic society depends upon a citizenry that requires its government to disclose everything it is doing. Mr. Robert Snowden has taken a large step for the rest of us. His actions may also lead to greater protection for our privacy, which is another necessary condition for a free society. The recent disclosures will be the beginning of a renewed struggle for freedom only if we insist that he has acted as properly as he has acted courageously.