Zionist Fallout and an Independent Press
Anna Baltzer, author, and Haithem El-Zabri, founder of the Palestine Online Store. Austin, TX, November 2008. (Photographer unknown.)
I found this photo on Mondoweiss.net, a site devoted to US policy in the Middle East. Adam Horowitz and Philip Weiss, whose articles frequently appear in The Nation and Huffington Post among others, maintain the blog as a project of The Nation Institute.
The people in the photo are Anna Baltzer, a Jewish-American author and champion of the rights of Palestinians in their home lands, and Haithem El-Zabri, a Palestinian-American. This isn’t the kind of photo we would expect to see in the mainstream national media.
Given the blatant horrors of Israel’s treatment and subjugation of Palestinians in Israel, the American press should be astounded at our Israeli foreign policy. Instead, Zionism reigns supreme, no matter the fact that natives of the regions are imprisoned, starved, refused work, refused permission to reunite with their families, and then attacked by Israel’s army for complaining about it. Granted, Palestinians have complained with shells and mortars, but if Americans were denied these basic human rights, would we sit complacently in our ghettos without fighting back? I think not. I saw Red Dawn, and I approved. (May Patrick Swayze’s soul rest in peace.)
Some of my friends have asked where to find independent news sources. The Nation is a good place to start, and has been around for a long time – 145 years – and its mission of unbiased, non-hysterical reporting of news should be the custom of all journalists, not just an ideal or aspiration.
The Nation will not be the organ of any party, sect, or body. It will, on the contrary, make an earnest effort to bring to the discussion of political and social questions a really critical spirit, and to wage war upon the vices of violence, exaggeration, and misrepresentation by which so much of the political writing of the day is marred.
— from The Nation’s founding prospectus, July 6, 1865
The Nation Institute was founded about 100 years after the weekly news magazine. Its website says that “[t]he Institute places particular importance on strengthening the independent press in the face of America’s increasingly corporate-controlled flow of information, and through its programs the Institute promotes progressive values on a variety of media platforms. The Institute sponsors conferences, investigative research, seminars, televised town-hall meetings, original web content, book publishing, film production, fellowships, internships, and awards for truth-telling and social activism.”
I cannot conceive of higher ideals in journalism.
Some of my more conservative friends may claim that The Nation is a left-leaning rag that spends its time bashing Sarah Palin and wringing its hands about mythical global warming. It isn’t. Yes, it supports logical, reasoned debate and yes, it reports scientific conclusions.
Frankly, I do not understand the logic for supporting Palin’s self-professed ignorance of current events (I can assure you, The Nation is not among the news sources she regularly reads) or for dismissing the empirical data provided by science on the issue of climate change, so I don’t have a problem with that. I blast illogical, histrionic, and patently silly pretenders to political thrones whenever I get the opportunity. I revel in exposing foolish denial of scientific proof because it presents an inconvenience to something the denier holds dear, be it the existence of dinosaurs or the depletion of fossil fuels.
We owe it to ourselves to educate ourselves.
Breaking Up
It’s all the talk.
At cocktail parties and in the small talk before business meetings, we’re all talking about that certain Russian prediction of the breakup of the American union and the new countries that will take its place.
With Governor Perry in Texas talking secession, and Japanese having bought up Hawaii, and the Northwest’s own secessionist movement, maybe professor Igor Panarin’s prediction isn’t all that far fetched.
In case you haven’t heard, the Wall Street Journal ran an article in late December 2008 in which Professor Panarin was quoted as saying that there was about a fifty percent chance that the United States of America would break up by July of 2010. That’s fourteen months from now.
According to him, we won’t be able to hold together as a nation until the end of the world – or the new era – predicted by the Maya. Brash and impulsive, we’ll disintegrate into six different countries, each under the influence of a different foreign power. The economy and unimpeded immigration will be major causes of our downfall. Being Russian, Panarin also attributes the coming civil war to our “moral degradation.”
But those two words, “moral degradation,” are awfully subjective. Our morals, which the Soviets never thought we had in the first place, have actually gotten worse? This is the result of the rabidly conservative administration we had until January? George Bush’s administration was closer to Putin’s than any other administration in history – yet our morals are fatally degraded?
I’m just glad that Putin’s Evil Twin is no longer in the highest office in the land. That man scared me. He left us with a constitution in tatters and a reputation sullied worldwide. He left us with an economic disaster of pestilential proportions. Under his watch an unnecessary war was started and a war that maybe should have been over by now may never be. We are indeed following in the footsteps of the Soviets in Afghanistan. There’s a reason that country cannot stay conquered.
Russia’s economy tanked – a solitary tank, by the way, and not as part of a worldwide economic downturn – because communism, while perhaps a lofty ideal, is just an ideal. In practice it can never work because of the avarice of humans and the specialization of society. Like it or not, capitalism started with the rise of the medieval merchant class, and capitalism is here to stay. China’s gradual embrace of capitalism is much better than the free-for-all Russia and its satellites endured, but that embrace is tantamount to an admission that as much as we might all like to be equal, some will always be more equal than others.
I don’t see the US breaking up. I see a future in which some secessionist movements might succeed. Perhaps in the Northwest, where politics and civil rights are far more liberal than in, say, Arkansas, a new country could rise. I don’t see it becoming part of Russia or Japan or China. The cultures are just too different, and the survivalists are just too adamant. Instead of this secessionist entity clinging to the coast like in Panarin’s notion, Montana will allow it to flex its muscle eastward.
Now, Texas has been an independent country before and, as a former resident of the only state with a school in the Southwest Conference that wasn’t located in Texas, I say let ’em be again. (My ex-husband never mentions the University of Texas at Austin without an exaggerated spit of disgust.) We don’t need Texas. If we built a fence around its borders, it might help a great deal with the illegal immigration issue. In fact, give Texas New Mexico and Arizona, too.
The South, as they have always said, will rise again. The Southern economy, lifestyle, and outlook just doesn’t quite mesh with that of those folks up East. Atlanta can be our capital, or New Orleans, at least until it washes away again. Now, despite Panarin’s model, I just don’t see West Virginia, Kentucky, Tennessee, or the Carolinas joining some urban Atlantic nation-state. We’ll keep them in the South, as well as the Southern two-thirds of Virginia. Washington D.C. is not a Southern city, and Maryland, despite its location south of the Mason-Dixon line, just doesn’t feel Southern. The damn Yankees can have them both. The South will also take the Florida panhandle, because we need our “Redneck Riviera.” Disney can have the rest of the state and no one will miss it.
That city that stretches from the Chesapeake to Boston Harbor will become a country unto itself. To give it arable farmland we’ll donate western Pennsylvania and Ohio to its holdings. It’ll eventually sort of have that “Escape From New York” feel to it. With any luck it’ll turn into “I am Legend” and we can build a fence around it, too, to keep the zombies corralled.
New England will revert to its colonial status, with the exception of Western Massachusetts, which is part of that Atlantic city-state. Its capitol will be Hanover, New Hampshire, that venerable seat of learning that is crowned by Dartmouth University.
The twin capitals of the landlocked Midwest will be Chicago and port city of St. Louis. With the fall of the Atlantic city-state to zombies, Indiana, Illinois, and Michigan will become the industrial hub of the continent.
Wisconsin, the Dakotas, and Minnesota will join Canada. People there sound like Canadians already, so the cultural assimilation won’t be difficult for them. Likewise Alaska will become Canadian, just because Canada needs more tundra. Although, come to think of it, with global warming, that tundra will turn into bog by the next century.
That takes care of every place except Hawaii. Since Japan already owns Hawaii, we won’t be able to do much with it. Vulcanism will render the Hawaii question moot in another few thousand years, anyway.
So, I guess I can see the US breaking up, but not the way that Russian Panarin conceives of it. I have to take the cultural inclinations into consideration, whereas he just looked at state lines. And other than those northern states that defect to Canada, Japanese Hawaii, and maybe a Cuban or Bahamian Florida, I just don’t see any other country taking control of the nations that result.
And now that I have frittered away a couple of otherwise billable hours on these mental gymnastics, I really should get back to work.
Gridlock: The American Way
Often as not, politicians and pundits decry gridlock as something negative. Nothing could be further from the truth, as an OpEd piece in the Wall Street Journal points out today.
In my opinion, political parties are designed to create “gridlock.” This is actually a good thing, and the framers of the U.S. Constitution hoped that checks and balances among the three branches of government would prevent silly laws.
Far too much legislation gets passed even when there is gridlock. Just to gather additional votes, lawmakers append pork to bills completely unrelated to the primary subject of the bill. The long-winded, convoluted language of most bills (yes, a lawyer is saying this!) obfuscates the intent of the drafters.
With a majority of the president’s party in both the Senate and the House, a dangerous atmosphere builds into a tempest that takes far too long to stuff back into its metaphorical teapot.
The point of having a balance of power between the executive and legislative branches is so that over-reaching legislation doesn’t get passed and signed into law. With one party effectively running these two branches, we should expect abuses of power. It matters not which party is in power. Both parties – as well as any hypothetical third party in such a position – would be unable to resist the temptation to press their agendas unchecked by other points of view.
The problem with our current tax-subsidized two-party system is that a single party can indeed obtain a majority relatively easily. Legislation can get passed, and then a supermajority isn’t as much of a hurdle when there is a veto. Politicians will tell us that this is a good thing, because “things get done.”
But is majority rule really a fair way to go about things? Fifty one percent to pass a bill means that 49% are effectively disenfranchised. A simple majority does not constitute a mandate, no matter what certain politicians may tell us. A simple majority means simply that there are a few more for something than against it.
And “getting things done” isn’t always the best thing, either. Think about how fast the USAPatriot Act was passed in the hysteria following 9/11. Think about how fast the economic bailout was passed despite the fact that its details remain poorly understood by “Joe the Plumber” as well as “Joe Six-Pack,” and – dare I suggest? – by the rank and file in Congress as well. Bad laws get passed for good reasons. Generally, getting rid of bad laws is much harder than passing a good one to begin with.
Clueless
Not only is he likely to die by the end of his first term in office (see the actuarial tables if you think I’m kidding), he’s clueless.
Yes, the wars in central Asia are a problem. But even bigger and more worrisome is our country’s fiscal well-being. To quote James Carville’s “war room” reminder from 1992, “It’s the economy, stupid.” Sixteen years later, it’s the economy again. And that’s stupid.
As if it wasn’t bad enough before, the past two weeks have seen our economy positively reeling from blows repeatedly delivered to it over the past several years.
First, September 7 it was announced that Fannie Mae and Freddie Mac were insolvent and had to be taken over by the government. These two publicly owned companies either own or guarantee fully half of the mortgages in America. That’s right: of the twelve trillion dollars – that’s 12 followed by a dozen zeroes, for those of you who don’t know – in money borrowed to finance the American Dream, $6 trillion of it was, in one form or another, the ultimate responsibility of these two companies.
Fannie and Freddie are, according to Fortune’s listing of the “Global 500,” the 161st and 162nd largest companies in the world respectively. The ranking is based on their annual revenue, which for each company is a little over $43 billion. Their profits, however, are in the negatives. Fannie Mae reports losses of $2.05 billion and Freddie Mac, even worse, reports losses of $3.094 billion. And together they were on the hook for six trillion dollars in debt, over one percent of which was delinquent. That’s a recipe for bankruptcy in anyone’s pocketbook.
Are these companies even the biggest losers on the scale of gargantuan companies posting gargantuan losses? No. General Motors (yes, another cornerstone of the American economy and a major employer worldwide) boasts that honor. With revenues of more than $182 billion, GM is posting a loss of $38.732 billion. Ford Motor Company isn’t quite as desperate. It comes in at #10 on the list of losers at a loss of $1.8 billion. A loss like that seems manageable in comparison to GM’s, doesn’t it?
Another US company, Sprint/Nextel, which is the third largest among the telecom giants, is posting losses exceeding $26 trillion this year. Staggering losses like these do more than cause a company to go bankrupt. Companies vaporize due to losses like these. Then there’s the domino effect of the fallout: lost jobs, unpaid debts to other companies, and a gap in the economy that no amount of politicking can fill.
Will the government rescue GM like it rescued the Chrysler Corporation in the 1970’s? Our automakers employ an awful lot of people. It will be very hard for the United States, competing with Indian and Chinese workers who charge pennies to the dollars charged by American workers for their time, to fill a manufacturing hole of that size.
It’s a big jump from these staggering losses to the next bracket of the biggest losers on Fortune’s list. A German bank, in the red because it helped bail out a German competitor that had tanked because it had invested heavily in American subprime mortgages, is next in line with losses of $8.4 billion, but then, when we look to the next giant losers, we’re back on American soil.
Merrill Lynch is the fourth biggest money loser worldwide right now. Merrill Lynch was in the news this weekend because Bank of America became its white knight, dashing in to rescue the failing investment giant, whose offices fill all 34 floors of the Four World Financial Center Building in Manhattan’s famous financial district. We might note here that the same subprime lending crisis has led to the failure of this icon of investing. We might also note that Merrill Lynch is one of the relative handful of investment companies that survived the Great Depression of the 1930’s. News of its failure is ominous, indeed.
Four of the top five money losers in the world are American, and the one that isn’t had losses caused entirely by the American subprime crisis. And get this: one of the top five losers is an agency of the American government! Did that sentence get your attention? It should have. Yes, the United States Postal Service is number five on the list of losers.
Now, I could wax lyrical about the mismanagement of the postal service here, but I’ll save my rant for another time. Maybe I’ll mention something in the comments to this blog about how much freaking money the USPS spends to advertise its monopoly. But for now I’ll pass. There’s a lot of complex analysis that goes into that discussion, and I’m talking about the economy in general, here. I’m talking about a certain presidential candidate’s understanding of the economy in particular.
You see, despite Fannie Mae and Freddie Mac, despite the subprime and credit crises, despite the failure of Merrill Lynch and AIG, which the Federal Reserve decided to help yesterday with an $85 billion bailout loan, despite the bankruptcy filing this weekend of Lehman Brothers, another huge investment firm, John McCain believes our economy is fundamentally sound.
Now, keep in mind that we have a federal budget deficit of $9 trillion that has grown by well over $400 billion a year since the current administration has been in control. We’re fighting two wars in central Asia at an annual cost of $200 billion, which we have borrowed from China – China! – to finance. The Federal Reserve just lent AIG $85 billion, and that money has to come from somewhere. Internationally, our currency is weak.
When the wars started, President Bush expanded the government in an unprecedented move by creating a Department of Homeland Security. (Excuse me, but wasn’t that what the already-existing National Security Agency for? Wasn’t Homeland Security redundant? I feel another rant coming on. I’ll stop here.)
The biggest financial losers globally are either American companies or driven to their staggering losses by American economic policies and practices, and John McCain thinks that the economy is fundamentally sound.
John McCain thinks that America’s big employers and investors can sustain staggering losses and the economy is still fundamentally sound.
Something in that jungle prison over there did more than make him unable to comprehend how to send an email. Something in that jungle prison over there robbed him of his ability to see what is obviously an unfolding financial disaster on a scale with the Great Depression.
The emperor is wearing no clothes, and his consort is a redneck rodeo queen.
Tens of thousands of jobs on Wall Street are at risk, as are hundreds of thousands of jobs in the automotive industry. Monday was the worst day for the stock market since the 9/11 terrorist attacks. The dollar is weak against foreign currencies. We’re fighting two wars. Oil, which we depend upon as much as we depend upon water, is three times as costly as it ought to be. Worker productivity has increased, but wages have not.
Our government isn’t financially sound. It has debt it can’t possibly repay and it has pushed a pro-credit, pro-housing agenda among the populace until consumers no longer can pay for what they buy. Unemployment is rising, and job creation is ridiculously low, a dangerous situation when we look at the potential for both white collar and blue collar job losses.
McCain thinks the government is fundamentally sound? You’ve got to be kidding me.
Gun Control
In the last couple of years I’ve changed my stance on gun control.
I don’t like guns. They scare the hell out of me, and I see nothing “sporting” about attacking unarmed animals with them in the woods. I don’t own one and I’ve never been comfortable with the notion of having one in my house, despite the fact that my ex-husband had a hunting rifle and a boyfriend had a pistol.
I’ve represented kids with criminal charges involving guns. I’ve seen bullet holes in children’s bedroom walls from drive-by shootings. I’ve represented women who were threatened with guns by their husbands, boyfriends, and even their sons. I’ve been to funerals of people killed by guns. I’ve held and hugged a weeping grandmother when a stray bullet in a gang shooting left her favorite grandson, a good boy with an “A” average and college-bound, dead on a dark street in a small town in southeast Arkansas.
I don’t like the attitude of the NRA. It comes across as arrogant, shrill, and combative – not the kind of attitude a responsible gun owner/handler should display, especially around guns.
This is going to sound stupid, probably, but one of the things that tipped the scales for me against gun control was a movie. It wasn’t just any movie. It was a movie based on a comic book. Bear with me. I’ve watched V for Vendetta, a film by the incomparable Wachowski Brothers, multiple times, and I find no fault with its future history philosophy.
Perhaps the helium in my brain is showing, but the point that disarming a populace oppresses the citizens makes sense to me.
One of the very best quotes from the movie is, “People should not be afraid of their governments. Governments should be afraid of their people.” Why? Because the power to change government, to oversee government, and to demand that government be accountable lies with the people.
There is a poignant scene in this movie in which thousands of unarmed citizens in Guy Fawkes masks confront the well-armed military. As they pour into the open areas on this auspicious night, the astonished military doesn’t open fire. Perhaps it is the sheer numbers of people; perhaps it is the eerie, surreal fact that they are costumed like that seditionist of the past, but for whatever reason, the armed forces of the government holds its fire and allows itself to be overrun. Perhaps it is because the members of the armed forces are citizens, too, and the whole point of the movie is that citizens must require and compel change in the government.
And then there’s this quote, the source of which I’m desperately seeking:
“An armed society is a polite society.
An unarmed society is a police state.
A disarmed society is a tyranny.”
The Clintons on Torture
Vodpod videos no longer available.
For the record, here’s Bill Clinton on the issue, from the transcript of the September 24, 2006 edition of Meet the Press:
MR. RUSSERT: What did you think when Colin Powell said, “The world is beginning to doubt the moral basis of our fight against terrorism”?
MR. CLINTON: I think he was referring to the, the questions that have been raised about the original evidence, which plagues him and in which he was, I think, unwittingly complicit. I don’t think—I think it’s pretty clear, based on what all the people that worked for him have said. I think he was most worried about the question of torture and the conduct of the prisons at Guantanamo and Abu Ghraib. And of course, he weighed in in this debate about the extent to which the CIA or others could engage in conduct which clearly violates the Geneva Convention.
Now, we—as you and I talk, and we hear that they’ve reached an agreement, the senators and the White House, and I hope they have. But Colin pointed out that, you know, we’ve got soldiers all over the world. If we get a reputation for torturing people, the following bad things are going to happen: We’re as likely going to get bad information is good, just for people to just quit getting beat on; two, we’re likely to create two or three or five enemies for every one we break; and three, we make our own soldiers much more vulnerable to conduct which violates the Geneva Convention. That is, we can’t expect our friends, much less our enemies, to accept the fact that because we’re the good guys, we get to have a different standard of conduct. And most people think the definition of a good guy is someone who voluntarily observes a different standard of conduct, not someone who claims the right to do things others can’t do.
MR. RUSSERT: Would you outlaw waterboarding and sleep deprivation, loud music, all those kinds of tactics?
MR. CLINTON: Well, I—here’s what I would do. I would figure out what the, what the generally accepted definitions of the Geneva Convention are, and I would honor them. I would also talk to people who do this kind of work about what is generally most effective, and they will—they’re almost always not advocate of torture, and I wouldn’t do anything that would put our own people at risk.
Now, the thing that drives—that, that gives the president’s position a little edge is that every one of us can imagine the following scenario: We get lucky, we get the number three guy in al-Qaeda, and we know there’s a big bomb going off in America in three days and we know this guy knows where it is. Don’t we have the right and the responsibility to beat it out of him? But keep in mind, in 99 percent of the interrogations, you don’t know those things.
Now, it happens like even in the military regulations, in a case like that, they do have the power to use extreme force because there is an imminent threat to the United States, and then to live with the consequences. The president—they could set up a law where the president could make a finding or could guarantee a pardon or could guarantee the submission of that sort of thing ex post facto to the intelligence court, just like we do now with wire taps.
So I, I don’t think that hard case justifies the sweeping authority for waterboarding and all the other stuff that, that was sought in this legislation. And I think, you know, if that circumstance comes up—we all know what we’d do to keep our country from going through another 9/11 if we could. But to—but to claim in advance the right to do this whenever someone takes a notion to engage in conduct that plainly violates the Geneva Convention, that, I think, is a mistake.
Thanks, Bill. Now, that having been said, I think “Geneva Convention” is too much to have to remember when we’re talking about Safewords.
The Patriot Act Is Dealt a Blow
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” – U.S. Const. Amend. IV.
On March 11, 2004, 191 people were killed and more than 1600 were injured when bombs placed by terrorists exploded on a Madrid, Spain, commuter train. Latent fingerprints were lifted from a suspicious plastic bag, and Interpol sent digital photos of them to the FBI in Quantico, Virginia.
No matches were found in the FBI’s database until higher resolution digital photos were sent the next day. This time, 20 potential matches were returned with respect to one of the latent prints. The FBI was able to pull names, addresses, sex, race, birth dates, and Social Security numbers for the 20 potential matches, and performed background checks on each of them.
Brandon Mayfield, a 38 year old practicing lawyer living near Portland, Oregon with his wife and three children, was ranked number 4 on the list of potential matches for the latent print. Mayfield had not been outside the US since 1994 (he didn’t even have a current passport), and had never been arrested for a crime.
A supervisor in the department that matches fingerprints decided that Mayfield’s prints matched the latent print. For verification, as the FBI sometimes does, independent confirmation was sought. The person who confirmed the match was a former FBI employee who had been reprimanded several times for falsely or erroneously matching fingerprints. He knew that the FBI had already made the match, and he was aware that Mayfield was a practicing Muslim. Because there were less than 12 points at which the latent print and Mayfield’s prints matched, a third analyst also reconfirmed the match. The second reconfirmation was also tainted by the fact that the third examiners knew that the first two had made the match and by the knowledge that Mayfield was Muslim.
The FBI began surveillance of Mayfield and his family. They followed then to the mosque they attended, to the children’s school, to Mayfield’s law office, and to family activities. Attorney General John Ashcroft personally applied to the Foreign Intelligence Security Court (FISC) for an order to permit placing bugs in the private rooms of the Mayfields’ home. While waiting for the FISC order, the FBI went ahead and placed the taps on phones both in the home and in Brandon Mayfield’s law office. They began gathering information about the Mayfields from other people. They also did “sneak and peek” entries into the home and law office, entering, but not removing anything. The Mayfields detected the entry and believed they had been burglarized.
Three weeks later the FBI sent Mayfield’s prints to Spain. In the meantime, several Moroccan immigrants to Spain had been arrested in connection with the bombing. There was no connection between the Moroccans and Mayfield. The Spanish authorities examined the fingerprints and found too many dissimilarities, so notified the FBI that there was no match. The Spanish authorities had the original latent prints, not digital photos of them, for comparison purposes. A formal report from Spain to the FBI followed. Not to be deterred, the FBI sent agents to Spain, but the Spanish authorities were firm. There was no match of Mayfield’s prints to the latent print.
The FBI was still determined to connect Brandon Mayfield to the Madrid bombing. In support of its request for a warrant to arrest Mayfield as a material witness to the bombing, an FBI agent swore in an affidavit that the FBI had determined Mayfield’s prints and the latent print were a 100% match. No mention was made of the Spanish conclusion that the prints were not a match. The affidavit also emphasized Mayfield’s religion and ties to the Muslim community.
Once he was arrested, Mayfield vehemently protested his innocence, but an independent fingerprint examiner selected by Mayfield and his lawyers also determined that the prints were a match.
Thanks to broad search warrants for the Mayfield home and law office, computer files, papers, and even the Mayfield children’s homework was seized by the FBI. Mayfield was held incommunicado in a detention facility, and he and his family were told that he was to be charged with crimes punishable by death. They were told that there was a 100% match between his fingerprints and those found in Madrid. The FBI and the Department of Justice leaked information about the arrest to the press, and there were international headlines proclaiming Brandon Mayfield to be involved in the Madrid bombing.
Two weeks after his arrest, Spain notified the FBI that it had matched the latent print in question with an Algerian. Spain specifically notified the news media that the print did not match Mayfield’s. Mayfield was released from detention the next day, but was ordered to remain on home detention for the next several days.
At least eight federal agencies, the CIA, the National Security Council, the Department of Defense, Homeland Security, the Department of Justice, the FBI, the Department of the Treasury, and the NSA, now have “photocopies or photographs of documents from confidential client files in Mayfield’s law office, summaries and excerpts from the computer hard drives from the Mayfield law office and plaintiffs’ personal computers at home, analysis of plaintiffs’ personal bank records and bank records from Mayfield’s law office, analysis of client lists, websites visited, family financial activity, summaries of confidential conversations between husband and wife, parents and children, and other private activities of a family’s life within their home.” – Mayfield v. United States (CIV. 04-1427-AA, p. 23), ___ F.Supp. ___ (26 Sept., 2007).
It’s not surprising given this chain of events that Brandon Mayfield, his wife, and their three children sued the federal government.
The USA PATRIOT Act allowed the federal government to conduct secret surveillance of Brandon Mayfield and his family based entirely on the misidentification of that latent fingerprint, even after Spain had determined there was no match. The unconstitutionality of the Foreign Intelligence Security Act (FISA) as amended by the USAPATRIOT Act was the subject of a decision by one of Oregon’s federal judges this week.
The USAPATRIOT Act modified the FISA, 50 USC §§ 1801 et seq., to allow the federal government to conduct secret surveillance of U.S. citizens without having to meet the requirements of the 4th Amendment to the U.S. Constitution against unreasonable search and seizure, and against warrantless searches and seizures.
Until 2001, when the federal government sought a warrant under FISA, a high ranking member of the intelligence community, such as the Director of the FBI, was required to certify that the primary purpose of the surveillance was to obtain foreign intelligence information. With passage of the USAPATRIOT Act, that standard is changed. The government now needs only to claim that foreign intelligence gathering is merely a significant purpose of the surveillance. 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B). Because of the USAPATRIOT Act, FISA surveillance orders can be obtained even if the government’s primary purpose is to gather evidence of local, domestic criminal activity.
What does this mean? Passage of the USAPATRIOT Act meant that for the first time since 1791, when the Bill of Rights was adopted, the government could conduct searches and seizures without showing that a crime was either contemplated or had already been committed. It means that the federal government can avoid the probable cause requirement of the Fourth Amendment by merely alleging that part of the reason for the search and seizure is related to foreign intelligence gathering.
The government doesn’t have to suspect its target of any criminal activity at all, so long as gathering foreign intelligence is claimed as part of the reason for the search. The government only has to make a nexus of some sort between foreign terrorism or international espionage and the targeted person or place, and the approval for surveillance is granted under FISA. There doesn’t have to be any specific activity that the government is concerned about, unlike in the Fourth Amendment searches and seizures, where the affidavits and resulting warrants have to be specific as to the information to be sought and seized.
FISA allows surveillance to continue for four months at a time, whereas similar activity in the context of a normal criminal investigation is only allowed to continue for 30 days.
Furthermore, the government can retain the information obtained in the search without notifying the target of the search. Under the Fourth Amendment, the target of the search not only knows there has been a search but has been officially served with a warrant for it, and can challenge the validity of the warrant and the underlying affidavits in court. No such judicial challenge is available under FISA. Unless there is a criminal prosecution under FISA, the target may never know that the government has been watching him, tapping his phones, following him to work, or copying documents or records he thought were private.
The Oregon Federal District Court was mindful of the conflict between preserving the constitutional rights of Americans and the need for national safety and security. It was also mindful that the United States Supreme Court had already determined that the Executive Branch’s arguments to be specious “that ‘internal security matters are too subtle and complex for judicial evaluation’ and that ‘prior judicial approval will fracture the secrecy essential to official intelligence gathering.’” United States v. United States District Court, 407 U.S. 297, 320 (1972).
In 2002, the seven federal judges who are allowed to issue warrants for FISA surveillance – the only seven people in the country who have that power – issued a unanimous opinion finding that the procedures for obtaining approval for surveillance under FISA after passage of the USAPATRIOT Act were improper because they appeared to be geared toward law enforcement purposes rather than toward foreign intelligence gathering.
The U.S. government appealed. The FISCR, the court that reviews any appeals from the FISA court, reversed the unanimous decision of those seven judges. The government was the only party allowed to argue the case even though a number of entities had filed briefs as amicus curiae (friends of the court), urging the appellate court to uphold the ruling of the FISC judges. Only the government is allowed to ask the United States Supreme Court to review appeals from the FISCR.
This week, in striking down the relevant portions of FISA as amended by the USAPATRIOT Act, the Oregon District Court said:
It is notable that our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the Bill of Rights.
. . .
[T]he constitutionally required interplay between Executive action, Judicial decision, and Congressional enactment, has been eliminated by the FISA amendments. Prior to the amendments, the three branches of government operated with thoughtful and deliberate checks and balances – a principle upon which our Nation was founded. These constitutional checks and balances effectively curtail overzealous executive, legislative, or judicial activity regardless of the catalyst for overzealousness. The Constitution contains bedrock principles that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment.
Despite this, the FISCR holds that the Constitution need not control the conduct of criminal surveillance in the United States. In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate. The defendant here is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.
Thank you, Judge Ann Aiken.
Read the entire decision here: Mayfield v. United States
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