On the eve of the New York state primary last month, as Hillary Clinton came closer to the Democratic nomination, Vice President Joe Biden went on TV and defended her husband’s 1994 crime bill. Asked in an interview if he felt shame for his role passing a law that has been the subject of so much recent criticism, Biden answered, “Not at all,” and boasted of its successes — among them putting “100,000 cops on the street.” His remarks sparked a new round of debate over the legacy of the crime bill, which has haunted Clinton ever since she hit the campaign trail with a vow to “end the era of mass incarceration.”
A few days later, on April 24, a lesser-known crime law quietly turned 20. The Antiterrorism and Effective Death Penalty Act of 1996 — or AEDPA — was signed by Bill Clinton in the wake of the Oklahoma City bombing. While it has been mostly absent from the recent debates over the crime policies of the ’90s, its impact has been no less profound, particularly when it comes to a bedrock constitutional principle: habeas corpus, or the right of people in prison to challenge their detention. For 20 years, AEDPA has shut the courthouse door on prisoners trying to prove they were wrongfully convicted. Americans are mostly unaware of this legacy, even as we know more than ever about wrongful convictions. Barry Scheck, co-founder and head of the Innocence Project, calls AEDPA “a disaster” and “a major roadblock since its passage.” Many would like to see it repealed.
If the Clintons have not been forced to defend AEDPA, it’s partly because neither the law nor its shared history with the crime bill is well understood. AEDPA’s dizzying provisions — from harsh immigration policies to toughened federal sentencing — were certainly a hasty response to terrorism. But the law was also the product of an administration that long before the Oklahoma attack had abandoned its party’s core principles on criminal justice, deciding instead to wield crime policy as political weapon. After the Republicans seized control of Congress in the historic 1994 midterm elections, the Clinton White House sought to double down on its law-and-order image in advance of the 1996 presidential race. In the short term, it was a winning political strategy for Clinton. In the long term, it would help pave the way to one of the worst laws of his presidency.
The story that sets the stage for AEDPA can be partly told through White House memos from the time, a trove of which were released in 2014. Buried among hundreds of thousands of digital records housed in the Clinton Digital Library are previously confidential documents that shine light on Clinton’s criminal justice strategies in the mid-90s, yet have been largely overlooked.
One memo reveals a White House weighing its options in the weeks after the “Republican Revolution.” Dated November 22, 1994, it was written by top Department of Justice lawyer Ron Klain, who sent it to his boss as well as members of President Clinton’s inner circle, including Bruce Reed (the operative behind the famed pledge to “end welfare as we know it”) and senior White House adviser Rahm Emanuel. The memo was titled “Crime Bill ‘Redux.’”
“By now, we are all aware of the Republican proposal to revisit last year’s hard won crime bill,” Klain wrote in his memo. Called the Taking Back Our Streets Act, the GOP bill was designed to dismantle the crime bill’s signature features — in particular, a community policing project known as the COPS program — while going even further than the president had in his sweeping legislation. “The Republicans’ goal here is purely political and tactical,” Klain wrote. “To take away the clearest, best ‘Clinton achievement’ on crime, and to deprive the president of the opportunity to award communities all over the country their share of the 100,000 new police officers.”
The GOP also aimed to kill off the crime bill’s prevention programs, but Klain was more concerned about COPS — no doubt in part because the 100,000 police figure had been his idea. A young lawyer described by the New Republic as having “chillingly good political skills,” Klain had been working to pass crime legislation since he was in his 20s, as the “youngest ever chief counsel to the Senate Judiciary Committee.” Under Sen. Joe Biden, Klain had drafted unsuccessful precursors to the 1994 crime bill. Now Klain was being credited as the man who successfully steered its passage.
Klain saw “only two possible outcomes” to the Republican maneuvering. “The president will have to sign the bill that Congress sends him, or veto it.” While the former would “outrage our core constituency,” he wrote, the latter posed a potentially bigger threat: “We cannot needlessly give the GOP the opportunity to say that the president is vetoing a ‘tough on crime’ bill for ‘soft on crime’ reasons.”
Fear of looking “soft on crime” on the heels of the most extreme law-and-order legislation in U.S. history might have seemed irrational. The 1994 crime bill broadened “three strikes,” poured money into prison building, and vastly expanded the death penalty. But the new power struggle with Congress meant the White House wasn’t taking any chances.
Klain had a solution. Clinton should “welcome Republican efforts to build on last year’s crime bill,” he wrote, by folding them into new Democratic legislation that protected the administration’s top priorities. If it passed, it would be an additional “win” for the White House. Klain attached to his memo “a very, very rough outline of a possible new crime bill,” along with a chart comparing it both to the 1994 crime bill and the new GOP bill. Klain proposed including a $1 billion cut in prevention programs (reallocating $700 million to new juvenile prisons), more cops in schools, and “tougher truth in sentencing.” In some areas, his outline was harsher than the GOP legislation — “broaden[ing] the range of offenses for which juveniles may be tried as adults” and “enhanc[ing] penalties for lesser drug crimes.” In other areas, like the “deportation of criminal aliens,” it simply adopted the Republican line.
Finally, the proposal reintroduced an idea favored both by Clinton and his foes in Congress: “habeas corpus reform,” previously cut from the crime bill and now part of the Taking Back Our Streets Act. Sometimes called the “Great Writ” for its treasured place in constitutional law, habeas corpus referred to the long-standing right of prisoners to challenge their incarceration in court. For the federal courts, this meant reviewing state convictions for constitutional violations, a process that took years. In the zero-tolerance climate of the ’80s and ’90s, the concept of habeas corpus had met with increasing impatience; critics accused people on death row of gaming the system, filing “appeal after appeal” just to stay alive. “In brief,” Klain wrote, “these reforms would limit death row inmates to a single habeas petition — to be filed within strict time limits — while providing such inmates with competent counsel to assist in preparing this single filing.” While the Republican version of habeas reform made no guarantee on the right to counsel, both sides could agree on the need to speed up the death penalty.After the Oklahoma City bombing, Clinton appeared on “60 Minutes” calling for the perpetrator to be executed.
Klain’s imagined crime bill sequel never came to pass — he left the DOJ early the next year. But his top priority lived on. In February 1995, as Clinton threatened to veto the looming GOP bill over the COPS program, White House staff received talking points titled “DEBUNKING THE MYTHS: THE 100,000 COPS PROGRAM WORKS!!!” In the meantime, others considered the habeas provisions in the Taking Back Our Streets Act. The administration seemed poised to fight for competent counsel; one memo from February 1995 is particularly notable. Apart from providing for lawyers at the post-conviction stage, it stressed that habeas reform “must provide for competent trial counsel,” since “excessive delays in capital cases result not only from manipulation of habeas corpus procedures, but also from a high rate of constitutional error in capital trials.” This point tended to be aggressively ignored in the calls to speed up the death penalty, which usually blamed prisoners for abusing their rights.
As the GOP bill continued to advance that spring, the White House was planning PR events to blunt its political impact. “Our strategy on crime has always been to associate ourselves with police officers,” Rahm Emanuel and Bruce Reed wrote to Clinton in March, urging him to “bolster this image.” But then, suddenly, everything changed.
On the morning of April 19, 1995, a massive explosion rocked the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people and injuring hundreds more. On the ground days later, Clinton gave a powerful eulogy — PR events were no longer needed. It was now up to the president to keep Americans safe, not just from criminals, but from terrorists. Dropping its work on the GOP crime bill, Congress vowed to pass a new counterterrorism bill by Memorial Day.
But at least one key criminal justice priority survived. On the Sunday after the Oklahoma City bombing, Clinton appeared on 60 Minutes, calling for the perpetrator to be executed. The 1994 crime bill had expanded the death penalty “for purposes such as this,” he said. “If this is not a crime for which capital punishment is called, I don’t know what is.” Asked by co-host Ed Bradley how he could deliver on his promise that “justice will be certain, swift and severe,” Clinton called for speeding up death penalty appeals. “Congress has the opportunity this year to reform the habeas corpus proceedings,” he said. “And I hope that they will do so.”
If it was unclear how proposals to shorten appeals for state prisoners related to federal terror cases, prosecutors nonetheless applauded Clinton’s remarks. In a letter to the White House, a bipartisan group of state attorneys general warned that failure to overhaul habeas corpus would endlessly delay justice for “such acts of senseless violence” and undermine “the expression of our level of opprobrium as a nation for acts of terrorism.”
Almost a year later, on April 24, 1996, a signing ceremony took place on the South Lawn of the White House. “In a presidential election year,” the AP reported, “it was an opportunity for a warm display of bipartisanship on a sunny, spring day.” The New York Times described “the Marine band playing and American flags whipping in the breeze.”
“We send a loud, clear message today all over the world, in your names,” the president told families in attendance whose loved ones had died in Oklahoma City. “America will never surrender to terror.” Then he signed the Antiterrorism and Effective Death Penalty Act.
Twenty years later, AEDPA has long been eclipsed as a counterterrorism measure by the USA Patriot Act, which was built on its foundations. As crime legislation, it remains relatively unknown, even amid renewed debate over Clinton’s other policies. But for people in prison, its legacy has been sweeping and harsh. For all the rhetoric that accompanied the signing of AEDPA, it has been most severely felt by state prisoners with no connection to terrorism — and especially those who insist they are innocent.
AEDPA is most notorious for its impact on death penalty cases. “I suspect that there have may well been innocent people who were executed because of the absence of habeas corpus,” said former D.C. Circuit Judge Abner Mikva, a Clinton appointee who later served as White House counsel in 1994 and 1995. For Mikva, who turned 90 this year, his failure to stop so-called habeas reform is one of the major regrets of his career. He still recalls his time as a young law clerk for U.S. Supreme Court Justice Sherman Minton in the 1950s; when habeas petitions would reach his desk, Mikva said, “I saw how complicated it was for him to review these handwritten records — which is what they had at the time — and how uncertain some of the convictions were.”
“I was writing a bunch of letters trying to get help,” he recalled, when under AEDPA, “the situation became more dire.” Amid the confusion over how the law applied to old cases — for prisoners like Deskovic, who had exhausted his state appeals, the one-year countdown began upon enactment of AEDPA — his lawyer missed the April 24, 1997, deadline by four days. The district attorney argued that his petition should be dismissed on these grounds. The courts agreed (including the 2nd Circuit Court of Appeals, whose decision was co-written by Sonia Sotomayor). Deskovic spent six more years in prison before the Innocence Project convinced the new district attorney to test DNA in his case. It matched someone else and his conviction was vacated.
Deskovic was lucky to have an attorney at all. “I don’t think people realize that [non-death row] inmates are not provided with attorneys in federal court,” Deskovic said. Although AEDPA contained no promise of competent counsel in the end, people on death row are entitled to post-conviction representation. Others are often left to file pro se petitions, essentially representing themselves. “So now you have poor people who are often poorly educated — certainly not lawyers, certainly not having formal legal education — wading through this procedural thicket, and they can very easily get tripped up. And federal courts think nothing of saying, ‘Oh, you didn’t follow this rule? This procedure? We’re not looking at your case anymore.’”
Even more profound than the strict limits and deadlines it imposed in individual cases is the way AEDPA altered the balance of power between state and federal courts, favoring finality over fairness. Under AEDPA, federal courts may only grant habeas relief if a state court ran afoul of “clearly established federal law,” or if its ruling was rooted in “an unreasonable determination of the facts in light of the evidence presented.” In the oblique language of the law, this drastically raised the bar for overturning state convictions. Federal judges have been “pretty much shut out … from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred,” 9th Circuit Court of Appeals Judge Alex Kozinski wrote in the Georgetown Law Journal last year. “We now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”
In the New York Times Magazine last summer, Emily Bazelon cited Kozinski as one of a growing number of critics who have called for the repeal of AEDPA. Federal judges “are now raising alarm that the law is systematically failing to provide the necessary safeguards against miscarriages of justice,” she wrote. There are many examples of the way AEDPA has been “cruel” and responsible for “much human suffering,” according to Kozinski. But Deskovic, who now runs a foundation to help the wrongfully convicted, points to the case of a man named Lorenzo Johnson as particularly egregious.
Johnson was convicted in Pennsylvania for his involvement in a 1995 murder. The state never claimed he was the triggerman or even that he had a direct role in the killing, yet at 22 Johnson was sentenced to mandatory life without parole. In October 2011, the 3rd Circuit Court of Appeals overturned his conviction, finding that, while Johnson might have been present at the scene, the claim that he intended to commit murder was “mere speculation” by the state. After 16 years behind bars, Johnson walked out of prison. With Deskovic’s help, Johnson found a job, reunited with his family, and pursued public speaking.
But in 2012, the U.S. Supreme Court reversed the 3rd Circuit’s ruling, holding that it had “failed to afford due respect to the role of the jury and the state courts of Pennsylvania.” Although the federal court had found insufficient evidence to keep Johnson in prison, the “state court of last review” disagreed — “and that determination in turn is entitled to considerable deference under AEDPA.” After four months of freedom, Johnson got a phone call from his lawyer telling him he had to go back to prison. “It was surreal and horrifying,” said Deskovic, who drove him back to Pennsylvania from New York. Along the way, Johnson made calls to friends and family, struggling to explain. To Deskovic, it was a grotesque ruling by the Supreme Court — a “rush to repudiate a line of reasoning by the lower federal court,” rather than an interest in justice. Johnson “shouldn’t have had to be returned back to prison on a technicality.”
Today Johnson writes articles behind bars that are published at the Huffington Post. In a recent article titled “Clinton’s Other Terrible Crime Bill,” he described the lasting impact of AEDPA. “Although I’m living through a nightmare, I’m also just one of many others,” he wrote, pointing out the record number of exonerations in recent years. “But these numbers have not even scratched the surface; there are many other wrongfully convicted people still in prison.”
In the recent debates about crime policy from the ’90s, a common Clinton defense has been one of unintended consequences, in which bad laws were born of the best intentions. But White House memos in the run-up to AEDPA make clear that Clinton had been thoroughly warned about its dangers. What’s more, news articles from the era betray the extent to which criminal justice policies were being crafted with political strategy in mind, rather than as serious solutions to crime. “It’s been the most careful political calculation,” former Deputy Attorney General Philip Heymann told the New York Times after leaving the DOJ in 1994 — “with absolutely sublime indifference to the real nature of the problem.”
Indeed, with crime rates falling in the mid-90s, even the landmark features of the 1994 crime bill largely boiled down to posturing. In the New Republic, a former operative for Clinton’s 1992 campaign recalled the origins of the $8.8 billion COPS program that Joe Biden defends to this day: “Clinton had a big crime speech coming up. We had no idea how many extra cops would be a good thing. … Bruce Reed and I called [Ron Klain] from Little Rock. He said, ‘Would 100,000 be enough?’” Not surprisingly, in contrast to Biden’s boasting, the COPS program failed to deliver on its promises.
By the time AEDPA passed, Clinton had learned how effectively he could undercut the Republicans by co-opting their ideas on crime. Republicans were outraged. “We say habeas corpus, they say sure. … We say prisons; they say sure,” one frustrated GOP source complained to the New York Times as the 1996 election against Bob Dole approached. But critics pointed out that the costs of such a winning political strategy were far too high. “I have absolutely no faith that constitutional principles matter to this president when they emerge in a criminal-justice context,” American Civil Liberties Union legislative director Laura W. Murphy told the Times. AEDPA marked “a total collapse” on the issue.In the end, the final question for Clinton when it came to gutting habeas corpus was how to spin it.
In an email to The Intercept, Klain defended the 1994 memo in which he sought to outmaneuver the GOP by proposing a tough new Democratic crime bill. “Clearly we were trying hard to stave off draconian legislation being advanced by the new Republican majority,” he wrote. As for habeas corpus, he drew a clear distinction between what the Democrats advanced and what ended up in AEDPA. “We explored a number of strategies to prevent their plans to gut appeal rights without providing adequate counsel,” he said. “The GOP version passed after I left.”
It is true that many Democrats fought against the version of habeas reform that passed as part of AEDPA. Among them was Joe Biden, who for years had hoped to pass a habeas reform law of his own. But his proposed legislation, most recently aimed at the 1994 crime bill, had been drafted with state prisoners in mind, meaning that “the Biden bill would not affect the case of Timothy McVeigh,” as Bruce Reed wrote to Clinton on May 3, 1995, two weeks after the bombing. “We should go along with some form of limits on appeals by federal prisoners,” Reed advised. In the margins, Clinton appears to have written “agree.”
Two days later, White House lawyer Chris Cerf sent a memo to his colleagues comparing the dueling versions of habeas reform before Congress. He analyzed their legal implications and their chances of passing. Biden’s bill, which included myriad provisions on the right to counsel, was “dead on arrival.” A measure brought forward by Senate Judiciary Chair Orrin Hatch as part of the terrorism bill introduced by Bob Dole was somewhat “less radical” than other GOP versions, but still “a very significant incursion into traditional habeas law.” Cerf raised particular caution over provisions that required higher standards of deference to state courts and made it harder for federal courts to grant evidentiary hearings. “For all practical purposes,” he wrote, these two combined “would eliminate federal habeas hearings.”
The White House should accept the Hatch bill on a set of strict conditions, Cerf wrote. Among them: the deletion of those troubling provisions and the addition of language to ensure “competent counsel at all phases of a capital case.” If Hatch refused, Cerf wrote, the White House should reject his proposal and instead aggressively try to “unbundle habeas from the counterterrorism bill,” saving the fight for another day. But he was not optimistic. “My sense … is that the habeas train is coming down the track and is unstoppable,” Cerf wrote, “especially after the president’s comments on 60 Minutes.” In an underlined sentence, he warned, “We do not want to put the president in the position of having to accept highly objectionable habeas provisions merely because they are tied to the counterterrorism bill.”
Indeed, while it would take almost a year to pass AEDPA, Clinton’s immediate call to speed up the death penalty days after the bombing had rigged the game from the start. As Democrats began threatening to throw gun control amendments at Dole’s terror bill to force the removal of habeas reform, Hatch seized on Clinton’s own rhetoric, declaring, “The American people do not want to witness the spectacle of these terrorists abusing our judicial system … by filing appeal after meritless appeal.” For a moment, Clinton stood his ground. In late May 1995, a month after the attack, he sent a letter to Dole arguing against passing habeas reform as part of the terrorism bill and stressing the need to protect “the historic right to meaningful federal review.” But less than two weeks later, on Larry King Live, Clinton suddenly reversed course. Habeas reform “ought to be done in the context of this terrorism legislation,” he said, “so that it would apply to any prosecutions brought against anyone indicted in Oklahoma.”
Inside the White House, Abner Mikva believed he knew what had happened. In early June 1995, just days after Clinton wrote to Dole, a delegation from Oklahoma City arrived in Washington. It included survivors of the bombing as well as grieving family members. They called themselves “the habeas group.” Convinced it would result in swifter justice for the terrorist attack, they were lobbying for streamlining death row appeals. Mikva and his staff had been trying at the time to convince the president to support a more cautious version of habeas reform put forward by the NAACP Legal Defense Fund. But after the visit, Mikva recalls, all bets were off. “He wrote on my memo, ‘No. Oklahoma.’ And that was the end of our efforts.”
Yet, for all the political gamesmanship that paved the way to AEDPA, Mikva places the ultimate blame for the erosion of habeas corpus on the judiciary — particularly conservative U.S. Supreme Court Justice William Rehnquist. Rehnquist had long railed against the drawn-out appeals that delayed executions for making “a mockery of our criminal justice system.” Upon assuming the Supreme Court bench, in 1988, Rehnquist formed the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, naming retired Justice Lewis Powell Jr. as its head. Powell “came up with some very draconian changes to habeas,” Mikva recalled, “which were basically the substance of what ultimately passed.”
Federal judges at the time were alarmed by the recommendations. In 1989, at a Senate Judiciary hearing convened by Joe Biden, Judge Stephen Reinhardt of the 9th Circuit decried Powell’s report. “Finality and speed are the presumed objectives,” Reinhardt testified. “They seem to outweigh the concerns for fairness, justice, due process, and compliance with the constitution.” Citing his experiences with prosecutors who withheld evidence in capital cases — violations that can take years to discover — Reinhardt posed the question: “What can I do if someone comes in with affidavits and proof asking for relief from me when a man is about to be executed and the statute says I have no jurisdiction or authority to grant a stay or any habeas relief?”
Yet habeas reform efforts continued along parallel tracks in the legislative and judicial branches. By the time AEDPA passed, a series of Supreme Court rulings had already made it more difficult to challenge state convictions. (Indeed, in one 1995 White House memo to Clinton, Bruce Reed noted that Republicans had ultimately dropped habeas reform from the 1994 crime bill over fears that “a Democratic crime bill would undermine recent Supreme Court decisions that have strengthened prosecutors’ hands.”) To some legal scholars at the time, this made AEDPA mostly symbolic — an attempt by lawmakers to take credit for what the judiciary had already done.
In Congress, however, others saw the dangers posed by AEDPA. On April 17, 1996, during the final round of fighting in the Senate, New York Democrat Daniel Patrick Moynihan warned that the provisions curtailing habeas corpus would “introduce a virus that will surely spread throughout our system of laws.” One of just eight senators to vote against the law — Biden was not among them — Moynihan read from a letter to Clinton sent by four attorneys general. They urged him to “communicate to the Congress your resolve, and your duty under the Constitution, to prevent the enactment of such unconstitutional legislation and the consequent disruption of so critical a part of our criminal punishment system.”
But in the end, the final question for Clinton when it came to gutting habeas corpus was how to spin it. On April 23, 1996, the day before the ceremony on the South Lawn, Bruce Reed sent a memo to the White House staff secretary titled “Habeas language in signing stmt.” The remarks drafted for the president went into “far more detail” than they should, he wrote. “I realize this is a controversial issue,” Reed said, “but it is also one that could get us in trouble if we say more than necessary.”AEDPA has fulfilled the very concerns Clinton brushed aside upon signing the bill.
With the presidential election in view, Republicans were already “blasting us with the charge” that Clinton’s re-election would “be a bonanza for criminals’ rights,” Reed wrote, somewhat ironically. He suggested a number of edits to minimize avenues for attack. Among them: “We should drop the sentence, ‘I am advised that one provision of this important bill could be interpreted in a manner that would undercut meaningful federal habeas corpus review and raise profoundly troubling constitutional issues.’ This sentence could be used against us,” he warned, “and doesn’t add anything, since we later say we don’t think it will be interpreted this way.”
Yet Clinton’s final remarks struck a defensive tone. His signing statement contained four paragraphs on the habeas provisions in AEDPA, assuring that they would neither “limit the authority of the federal courts” or “deny litigants a meaningful opportunity” to win evidentiary hearings. “Our constitutional ideal of a limited government that must respect individual freedom has been a practical reality because independent federal courts have the power ‘to say what the law is’ and to apply the law to the cases before them,” Clinton said. “I have signed this bill on the understanding that the courts can and will interpret these provisions … in accordance with this ideal.”
But Clinton was wrong. AEDPA has instead fulfilled the very concerns he brushed aside upon signing the bill. It is a law “misconceived at its inception and born of misguided political ambition,” as Judge Stephen Reinhardt recently wrote, some 25 years after testifying before Congress, “and repeatedly interpreted … in the most inflexible and unyielding manner possible.”
Ironically, AEDPA had little bearing in the end on the case of Timothy McVeigh, whose relatively swift execution in 2001 had more to do with political will than stringent new review standards. Nor did AEDPA solve the problem its supporters claimed it would address in the first place — federal court dockets remain backlogged and prisoners spend longer awaiting execution than ever.
But in a sense, the cruelest irony is how AEDPA has affected those who are not on death row yet nonetheless face the prospect of dying in prison on dubious grounds. Ignored by those who championed the law — and still largely invisible from the debate — they have been no less affected by its legacy. As Lorenzo Johnson wrote from a prison cell last month, “AEDPA has been devastating for wrongfully convicted prisoners and their families. Reform is long overdue.”
Sign up for The Intercept Newsletter here.
The post The Untold Story of Bill Clinton’s Other Crime Bill appeared first on The Intercept.
Trying to predict the future can be fun, which is why — from office sports pools to stock market speculation — many do it. Generally, though, people make such predictions with at least some humility: with the knowledge that they do not actually know what the future holds.
But not America’s beloved political pundits. When they pronounce what the future has in store for us, it comes in the form of definitive decrees, shaped with the tone of authoritative certainty. With a few exceptions, those who purported to see the future of the 2016 GOP nomination process spent many months categorically assuring everyone that, polls notwithstanding, Donald Trump simply could not, would not, become the GOP nominee; one could spend all day posting humiliating examples, so a representative sampling will have to suffice:
The entire commentariat is going to feel a little silly when Marco Rubio wins every Republican primary.
— Ross Douthat (@DouthatNYT) September 25, 2015
I don't know what's going to happen, and neither do you. But Donald Trump is still not going to be the nominee. Goodnight.
— Ross Douthat (@DouthatNYT) February 7, 2016
By itself, the intense schadenfreude makes it genuinely hard to get oneself to stop posting these (there were at least a dozen others gathered by Twitter commentators such as @blippoblappo — excellent all — that we forced ourselves to omit). But if one can tear oneself away from the sheer joy of wallowing in this festival of fantastic failure, there are several substantive points worth making:
First, ponder the vast amount of journalistic energies and resources devoted to trying to predict election outcomes. What value does that serve anyone? The elections are going to be held and the outcome will be known once the votes are counted. Why would journalists decide that it’s important for the public to hear their guesses about who will win and lose? One can, I suppose, recognize the value of having a couple of outlets with actual statistical experts offering empirical-based analysis of polling data (although Nate Silver’s 538 fared no better when it came to Trump, in August putting his chances of winning the nomination at 0 percent, 2 percent, and minus 10 percent), but why do so many political pundits feel a need to spend so much time pronouncing which candidates will or won’t win?
I asked that question this morning and Matt Yglesias of Vox — which offered lots of definitive pronouncements about the 2016 campaign, many hideously wrong — replied: “(a) it’s fun to try (b) people like to read it.” Both of those claims are probably true (I’d add: Election predictions are incredibly easy to spout). But that only answers the question of why so many journalists do it, not what the journalistic value is.
There seems to be none, accompanied by at least two significant harms: (1) these predictions create narratives about winners and losers, thus covertly trying to dictate election outcomes under the guise of “predicting” them; and (2) there’s an opportunity cost to all journalistic choices: Flooding the zone with horserace chatter means less time, energy, and resources for substantive coverage.
Second, pundits who issued such definitive, hubristic certainties — that turned out to be totally, fundamentally wrong — owe some self-accounting and a serious self-analysis about how and why they went so wrong. To their credit, some — such as Silver and Brooks — have started to do that, but many of them have done little beyond cursory acknowledgements of error, if that. If they really believe that there’s some sort of value in issuing these prognostications, then there must be even more value in exploring what they failed to comprehend — especially since they would undoubtedly expect credit as visionaries and oracles if they had been right.
Third, there are — and we’re far from the first ones to note this — some serious problems in political journalism reflected by this insistent, pervasive belief that Trump could not possibly win (the belief that Clinton would waltz to the nomination without any serious challenge reflects a similar problem). Influential journalists live much different lives from the mass of voters on whose behalf they think they can speak — or, at least, whose thoughts and actions they believe they can anticipate. They also often have different interests, including an inclination to prefer status quo preservation (and to see the status quo more favorably) than those who have been less rewarded by the status quo. The media class, by and large, is not furious with the political class or with prevailing conditions, and they thus failed to detect the sentiments of anger and anxiety that drove the Trump campaign (and, in some similar ways, the Sanders campaign).
Let’s acknowledge all the valid caveats: There’s nothing inherently wrong with making predictions, and everyone who tries it is going to be wrong sometimes. Moreover, though there were some exceptions, very few pundits predicted Trump’s success (though there’s a huge difference between (a) refraining from predicting or doing so with a tone of uncertainty and (b) hubristically and condescendingly “explaining” The Truth to the world about what will happen). Many factors, such as Trump’s celebrity status, made these circumstances unusual. And everyone makes mistakes in every realm.
Nonetheless, it becomes a much different type of error when one invokes one’s own claimed authority and expertise when issuing such embarrassingly wrong pronouncements, and, worse still, when the tone used is one of certainty and hubris as though the decrees are being passed down from Mount Sinai. At the very least, when a profession that touts its expertise, collectively, is this wildly wrong about something so significant, more needs to be done than a cursory, superficial acknowledgment of error — or casting blame on others — before quickly moving on, in the hope that it’s all forgotten. Some collective, introspective soul-searching is in order.
Sign up for The Intercept Newsletter here.
The post Beyond Schadenfreude, the Spectacular Pundit Failure on Trump Is Worth Remembering appeared first on The Intercept.
Terroralarm am Mittelmeer: Nicht die Küstengebiete in Libyen oder in Syrien sind unsicher, laut Bild bedroht der IS „unsere“ Strände auf Mallorca und in Italien. Beweise? Null. C-Promis sind dennoch in Sorge
Von RÜDIGER GÖBEL, 4. Mai 2016 -
Sommer, Sonne, Saufen am Mittelmeer, das ist nicht mehr, Bild hat kürzlich Alarm geschlagen: „Sicherheitsbehörden warnen. Terror an unseren Ferien-Stränden geplant.“ Getarnt als Strandverkäufer sollen Selbstmordattentäter an europäischen Stränden morden, kolportiert der Springer-Boulevard. Getarnt als fliegende Händler sollen sie kommen, getarnt als Verkäufer sollen sie Touristen statt Sonnenbrillen, T-Shirts und Getränken den Tod bringen, will Bild aus Ermittlerkreisen des
FROM 2013 to 2015, the NSA and CIA doubled the number of warrantless searches they conducted for Americans’ data in a massive NSA database ostensibly collected for foreign intelligence purposes, according to a new intelligence community transparency report.
The estimated number of search terms “concerning a known U.S. person” to get contents of communications within what is known as the 702 database was 4,672—more than double the 2013 figure.
And that doesn’t even include the number of FBI searches on that database. A recently released Foreign Intelligence Surveillance Court ruling confirmed that the FBI is allowed to run any number of searches it wants on that database, not only for national security probes but also to hunt for evidence of traditional crimes. No estimates have ever been released of how often that happens.
Under Section 702 of the Foreign Intelligence Surveillance Act, the NSA collects hundreds of millions of digital communications at rest and in transit from the major internet backbones running in and out of the U.S., as well as from Google, Facebook, YouTube, and other companies, involving “targets” overseas
Americans’ communications are constitutionally protected from warrantless searches, but when those communications are swept up by the NSA “incidentally” to its main goal, those protections have been essentially ignored.
The Office of the Director of National Intelligence has said the practice of searching the database for American communications is not “unlawful” because the content is collected legitimately in the first place—and because there are protections against sharing Americans’ identities unless it’s absolutely necessary.
But many privacy activists, as well as lawmakers including Sen. Ron Wyden, D-Ore., and Rep. Thomas Massie, R-Ky., describe this practice as a “backdoor” search—because it’s a way to gather evidence on Americans without getting court approval.
“If intelligence officials are deliberately searching for and reading the communications of specific Americans, the Constitution requires a warrant,” said Wyden in a press release in June 2014.
The ODNI Director of Legislative Affairs, Dierdre M Walsh, wrote in a 2013 letter to Wyden that the NSA approved 198 searches, or “queries” for the content of American communications in the 702 database—while the CIA approved “fewer than 1900” queries— for about 2100 overall.
That’s the number that more than doubled in 2015. But the ODNI doesn’t make its transparency reports easy to understand, leaving open the possibility of misinterpretation. For instance, the 2015 figure includes “recurring queries”—basically searches using the same terms more than once. In 2013, the NSA said its estimate “may” have included repeated queries counted individually. That could account for some of the increase between 2013 and 2015.
However, the number of queries for metadata–information about who the communications are to and from, and so on, rather than their content–also went up dramatically.
According to the 2014 letter to Wyden, NSA conducted “approximately 9,500 queries” of American metadata in 2013, including repeated queries—and excluding CIA searches, because the agency doesn’t track that information.
In 2015, the ODNI reported 23,800 searches on metadata—excluding “one IC element” that couldn’t provide statistics—presumably the CIA.
“The number of backdoor searches doubling since last reported shows that warrantless Section 702 surveillance is a significant and growing problem for Americans,” Jake Laperruque, privacy fellow at the Constitution Project, wrote in a message to The Intercept after reading the new report.
The missing data from the FBI is of great concern to privacy advocates. The USA Freedom Act, passed in June 2015, “conspicuously exempts the FBI” from disclosing how often it searches the 702 database, the Project on Government Oversight (POGO) wrote in a letter to the Director of National Intelligence, James Clapper, in October 2015.
“There is every reason to believe the number of FBI queries far exceeds those of the CIA and NSA,” POGO wrote. “To present a fair overview of how foreign intelligence surveillance is used, it is essential that you work with the Attorney General to release statistics on the FBI’s use of U.S. person queries.”
The new report also leaves unanswered how many Americans’ communications are collected in the first place.
Fourteen lawmakers on the House Judiciary Committee sent Clapper a letter on April 22 demanding to know how often programs authorized under Section 702 vacuum up communications belonging to innocent Americans. Others, including Sen. Wyden, members of the Privacy and Civil Liberties Oversight Board, and dozens of civil liberties activist groups have been asking the same question for years.
Clapper recently said he is working to provide an estimate on the number of Americans caught up in the dragnet.
Sign up for The Intercept Newsletter here.
The post NSA and CIA Double Their Warrantless Searches on Americans in Two Years appeared first on The Intercept.
INFLUENTIAL DEMOCRATIC CONSULTANTS, some of whom work for the Super PACs backing Hillary Clinton, have signed up to fight a bold initiative to create a state-based single-payer system in Colorado, according to a state filing posted Monday.
Coloradans for Coloradans, an ad-hoc group opposing single payer in Colorado, revealed that it raised $1 million over the first five months of this year. The group was formed to defeat Amendment 69, the ballot measure before voters this year that would change the Colorado constitution and permit a system that would automatically cover every state resident’s health care.
The anti-single-payer effort is funded almost entirely by health care industry interests, including $500,000 from Anthem Inc., the state’s largest health insurance provider; $40,000 from Cigna, another large health insurer that is current in talks to merge with Anthem; $75,000 from Davita, the dialysis company; $25,000 from Delta Dental, the largest dental insurer in the state; and $100,000 from SCL Health, the faith-based hospital chain.
Under the new system, there would be no health insurance premiums or deductibles, and all health and dental care would be paid for by the state through a new system called ColoradoCare. The plan calls for raising $25 billion through a mix of payroll taxes, along with bringing down costs through negotiations with providers.
The filing reveals that the anti-single-payer group has retained the services of Global Strategy Group, a Democratic consulting firm that has served a variety of congressional candidates and is currently advising Priorities USA Action, the Super PAC backing Clinton’s bid for the presidency.
Last month, Global Strategies Group circulated a polling memo that contends that the single-payer ballot measure can be defeated because voters “overwhelmingly reject” the idea.
But, the memo warned, the measure “has some traction with key groups,” including Democrats and millennials, and that the 2016 election year has proven difficult to predict. “[A] sustained campaign pointing out the many flaws in Amendment 69 is essential, especially in such an unpredictable environment,” the memo concluded.
After the memo appeared online last month, I called Andrew Baumann, the vice president of research at Global Strategy Group, to ask him about it, but said he could not reveal who had paid for it or why his firm was researching vulnerabilities with the single-payer initiative.
The filing shows that the firm was paid $58,000 by Coloradans for Coloradans for “consultant and professional services.”
A number of other Democratic firms have signed up to help defeat single payer, too. Hilltop Public Solutions, a firm managed by former campaign staffers to Barack Obama, was paid $45,000 by the group. Hilltop has also provided consulting services to Ready PAC, another Clinton-supporting Super PAC that eventually folded into the Clinton campaign.
The Trimpa Group, a consulting company run by Democratic strategist Ted Trimpa, also received a payment from Coloradans for Coloradans.
The Democratic consultants are listed alongside several Republican firms, including Brandeberry-McKenna Public Affairs, a GOP company that also lobbies for the drug industry.
As we previously reported, healthcare interests have mobilized to defeat Amendment 69, with the health insurance industry leading the way.
Countries such as Canada and the United Kingdom have been largely successful in providing universal healthcare at far lower costs than the U.S. using a single-payer system. Private health interests have lobbied for decades to defeat cost-saving healthcare reforms, starting with President Harry Truman’s effort to create single payer.
Sign up for The Intercept Newsletter here.
The post Prominent Democratic Consultants Sign Up to Defeat Single Payer in Colorado appeared first on The Intercept.
Seit über einem Jahr ist die Situation in der Türkei und Nordkurdistan (kurdisch: Bakur) für große Teile der Bevölkerung unerträglich. Nicht eine Woche vergeht, ohne dass die türkische Regierung, das Militär oder die Polizei Angriffe, Massaker oder Verhaftungswellen gegen Revolutionäre und Linke durchführt. Erdogan, der amtierende Präsident geht mit der islamisch-konservativen AKP (Partei für Gerechtigkeit und Aufschwung) brutal gegen linke, revolutionäre, kurdische und demokratische Kräfte vor. Demonstrationsverbote, die Abschaffung der Pressefreiheit, haltlose Verhaftungen, Ausgangssperren und die konstante Bombardierung von ZivilistInnen sollen ein Präsidialsystem mit Erdogan an der Spitze sichern. Jede Form von Protest soll verhindert und politische GegnerInnen sowie die Bevölkerung eingeschüchtert werden.
STOP ME IF you’ve heard this one: an outsider politician who owes his station in life to the hundreds of millions he inherited from his father is running a failing campaign for office based on stoking fear of Muslims.
The word “failing” — as in 20 points down in the polls days before the election — is a clue that we are speaking about someone other than Donald Trump.
In this case, the politician’s name is Zac Goldsmith, and he is the millionaire scion of a prominent British family. He was thought of, until recently, as a mild-mannered Conservative member of Parliament, known mainly for his environmentalism and his sister’s friendship with the late Princess Diana.
For the past two months, however, he has generated waves of disgust and, polls suggest, not much sympathy, by pursuing a mayoral campaign filled with racially divisive innuendo about the supposed danger of electing his Labour Party rival, Sadiq Khan, a son of Pakistani Muslim immigrants.
The heavier the defeat for #NastyZac on Thursday, the longer it will be before the Tories dare to run a vile, racist campaign again. Vote!
— Pete Sinclair (@pete_sinclair) May 2, 2016
Things reached something of a crescendo over the weekend, when Goldsmith — advised by a political consultant whose website boasts that he was “Described by Newt Gingrich as the UK’s own ‘Lee Atwater’” — published a dog-whistle appeal to voters in the Mail on Sunday, a right-wing tabloid, that implied Khan, a moderate member of Parliament, would somehow fail to defend the British capital from Islamist terrorists.
The piece, which offered nothing more than hyperbolic claims that Khan was linked to extremists through his prior work as a human rights lawyer, ran alongside a photograph of a bus destroyed during the July 7, 2005 terror attacks in London, under the headline: “On Thursday, are we really going to hand the world’s greatest city to a Labour party that thinks terrorists are its friends?”
Zac Trump https://t.co/GuLcWFJnwc
— Hugo Rifkind (@hugorifkind) May 1, 2016
The use of that image, and the perverse implication that the Muslim candidate whose own father drove a London bus should be associated with the terrorists who carried out that atrocity, did further damage to Goldsmith’s reputation, energizing his opponents and apparently costing him the support of even some friends and Conservative colleagues.
— Billy Bragg (@billybragg) May 2, 2016
Among those who expressed disgust at the opinion piece were Sayeeda Warsi, a Conservative member of the House of Lords and the first Muslim to serve in a British cabinet, and Smith’s friend Bianca Jagger, who accused him of surrendering to his party’s Australian campaign strategist, Lynton Crosby.
— Sayeeda Warsi (@SayeedaWarsi) May 1, 2016
I am very disappointed Lynton Crosby has mastermind Zac Goldsmith's racially divisive strategy. The campaign doesn't reflect the Zac I knew
— Bianca Jagger (@BiancaJagger) May 2, 2016
Even The Times know that Zac's gone mad pic.twitter.com/q8zGh8jvgo
— Charles White (@charleswhite3) May 2, 2016
This effort to play on fears of Islamist terrorism, just days before the voters go to the polls, was perhaps the most blatant part of Goldsmith’s campaign against Khan, but, as Simon Hattenstone explained in the Guardian, it followed a concerted effort to drive a wedge between different parts of London’s large South Asian population.
The first phase of the effort, which generated alarm in March, concerned campaign literature mailed to London voters presumed to be Hindus or Sikhs, based on their last names, that seemed designed to exploit anti-Muslim tensions among different faith groups from the Indian subcontinent.
One line of attack seemed to be based on the assumption that members of those communities would reject Khan, the British-born son of Pakistanis, either because he did not attend a ceremony to welcome India’s divisive prime minister, Narendra Modi, or might impose a tax on the gold jewelry of their families.
Zac Goldsmith targeting my Hindu name to warn me that about that Muzzer Sadiq Khan. Chip off the old racist block pic.twitter.com/RRmj6dVF4u
— Atanu Roy (@atsroy) March 15, 2016
Amazed at traction from shameful Goldsmith letter sent to me on Monday. Divide Sth Asian Londoners at yr peril! https://t.co/tMh8ZGpOjn
— Pukkah Preservation (@pukkahpreserve) March 16, 2016
— Gurtej sandhu (@gsandhu) March 18, 2016
— Anita Vasisht (@Anita_Vasisht) March 19, 2016
That part of Goldsmith’s campaign led Shazia Awan, a Conservative party activist and former parliamentary candidate from Wales, to speak out about what she described as an “attitude to ethnic minority voters” that recalled colonial-era strategies of divide and rule, which she said have no place in a modern, cosmopolitan Britain.
— Shazia (@ShaziaAwan) April 6, 2016
“I always admired Goldsmith and felt he was a principled Tory, an environmental campaigner, someone who, despite the privilege he was born into, truly loves the real London and the people that make this city great,” Awan wrote in the New Statesman last month. “All I see now is a man who is too weak to stand up to those directing his campaign, and as a result ruining his own reputation and credibility in the fickle pursuit of power.”
— Shazia (@ShaziaAwan) April 25, 2016
Goldsmith’s attempt to position himself as a defender of British Indian culture also led to some inadvertent hilarity when he insisted last month that he loved the genre of Indian cinema known as Bollywood, but was immediately stumped when asked to name a single actor or film that he liked.
After Khan directly accused Goldsmith of running an Islamophobic campaign, the Conservative attempted to connect his rival to extremism by telling the Evening Standard that the Labour candidate had shown “appalling judgment” by speaking at events alongside “repellent” extremists like a Muslim cleric named Suliman Gani.
— Sadiq Khan MP (@SadiqKhan) April 11, 2016
That attempt backfired spectacularly when Gani himself revealed photographic evidence that he had also appeared with Goldsmith, and even campaigned for the Conservatives against Khan at last year’s general election over the Labour candidate’s vote for same-sex marriage.
Oh no, I just read that Zac apparently calls me 'one of the most repellent figures in this country'
Dirty politics pic.twitter.com/WWYfIcdU5h
— Suliman Gani (@sulimangani) April 13, 2016
— Suliman Gani (@sulimangani) April 13, 2016
Worth pointing out that Zac's party voted in majority against gay marriage, while Sadiq Khan voted for and received death threats for it
— Nesrine Malik (@NesrineMalik) May 2, 2016
The result of Goldsmith’s campaign is that he not only trails badly in the polls, but has inspired critics like Owen Jones, a Guardian columnist, to call on voters to deliver a landslide victory for Khan in London, where the ethnic minority population is now 44 percent.
Even Ken Livingstone, a former Labour mayor of the capital — who was repudiated by Khan last week, for bringing up Hitler in a debate over anti-Semitism — has expressed sympathy for Goldsmith’s apparent unease at saying things he probably does not believe in a desperate effort to get elected.
“Zac looks as if he’s heading for a breakdown, because he’s being forced to behave in a way that isn’t natural to him,” Livingstone told the Guardian last week. “Given the cosmopolitan nature of his family, he can’t possibly believe all this crap.” Goldsmith’s father, Sir James Goldsmith, was Jewish, and his sister, Jemima, was once married to the Pakistani cricket star turned politician Imran Khan.
Meanwhile people keep wishing me luck for the Mayoral campaign of my brother… Sadiq khan
— Jemima Goldsmith (@Jemima_Khan) March 23, 2016
Sign up for The Intercept Newsletter here.
The post In Race for London Mayor, Donald Trump’s Anti-Muslim Playbook Seems to Be Failing for Zac Goldsmith appeared first on The Intercept.
“I’ve been waiting 40 years for someone like you.” Those were the first words Daniel Ellsberg spoke to me when we met last year. Dan and I felt an immediate kinship; we both knew what it meant to risk so much — and to be irrevocably changed — by revealing secret truths.
One of the challenges of being a whistleblower is living with the knowledge that people continue to sit, just as you did, at those desks, in that unit, throughout the agency, who see what you saw and comply in silence, without resistance or complaint. They learn to live not just with untruths but with unnecessary untruths, dangerous untruths, corrosive untruths. It is a double tragedy: What begins as a survival strategy ends with the compromise of the human being it sought to preserve and the diminishing of the democracy meant to justify the sacrifice.
But unlike Dan Ellsberg, I didn’t have to wait 40 years to witness other citizens breaking that silence with documents. Ellsberg gave the Pentagon Papers to the New York Times and other newspapers in 1971; Chelsea Manning provided the Iraq and Afghan War logs and the Cablegate materials to WikiLeaks in 2010. I came forward in 2013. Now here we are in 2016, and another person of courage and conscience has made available the set of extraordinary documents that are published in The Assassination Complex, the new book out today by Jeremy Scahill and the staff of The Intercept. (The documents were originally published last October 15 in The Drone Papers.)
We are witnessing a compression of the working period in which bad policy shelters in the shadows, the time frame in which unconstitutional activities can continue before they are exposed by acts of conscience. And this temporal compression has a significance beyond the immediate headlines; it permits the people of this country to learn about critical government actions, not as part of the historical record but in a way that allows direct action through voting — in other words, in a way that empowers an informed citizenry to defend the democracy that “state secrets” are nominally intended to support. When I see individuals who are able to bring information forward, it gives me hope that we won’t always be required to curtail the illegal activities of our government as if it were a constant task, to uproot official lawbreaking as routinely as we mow the grass. (Interestingly enough, that is how some have begun to describe remote killing operations, as “cutting the grass.”)
A single act of whistleblowing doesn’t change the reality that there are significant portions of the government that operate below the waterline, beneath the visibility of the public. Those secret activities will continue, despite reforms. But those who perform these actions now have to live with the fear that if they engage in activities contrary to the spirit of society — if even a single citizen is catalyzed to halt the machinery of that injustice — they might still be held to account. The thread by which good governance hangs is this equality before the law, for the only fear of the man who turns the gears is that he may find himself upon them.
Hope lies beyond, when we move from extraordinary acts of revelation to a collective culture of accountability within the intelligence community. Here we will have taken a meaningful step toward solving a problem that has existed for as long as our government.
There are authorized leaks and also permitted disclosures. It is rare for senior administration officials to explicitly ask a subordinate to leak a CIA officer’s name to retaliate against her husband, as appears to have been the case with Valerie Plame. It is equally rare for a month to go by in which some senior official does not disclose some protected information that is beneficial to the political efforts of the parties but clearly “damaging to national security” under the definitions of our law.
This dynamic can be seen quite clearly in the al Qaeda “conference call of doom” story, in which intelligence officials, likely seeking to inflate the threat of terrorism and deflect criticism of mass surveillance, revealed to a neoconservative website extraordinarily detailed accounts of specific communications they had intercepted, including locations of the participating parties and the precise contents of the discussions. If the officials’ claims were to be believed, they irrevocably burned an extraordinary means of learning the precise plans and intentions of terrorist leadership for the sake of a short-lived political advantage in a news cycle. Not a single person seems to have been so much as disciplined as a result of the story that cost us the ability to listen to the alleged al Qaeda hotline.
If harmfulness and authorization make no difference, what explains the distinction between the permissible and the impermissible disclosure?
The answer is control. A leak is acceptable if it’s not seen as a threat, as a challenge to the prerogatives of the institution. But if all of the disparate components of the institution — not just its head but its hands and feet, every part of its body — must be assumed to have the same power to discuss matters of concern, that is an existential threat to the modern political monopoly of information control, particularly if we’re talking about disclosures of serious wrongdoing, fraudulent activity, unlawful activities. If you can’t guarantee that you alone can exploit the flow of controlled information, then the aggregation of all the world’s unmentionables — including your own — begins to look more like a liability than an asset.
At the other end of the spectrum is Manning, a junior enlisted soldier, who was much nearer to the bottom of the hierarchy. I was midway in the professional career path. I sat down at the table with the chief information officer of the CIA, and I was briefing him and his chief technology officer when they were publicly making statements like “We try to collect everything and hang on to it forever,” and everybody still thought that was a cute business slogan. Meanwhile I was designing the systems they would use to do precisely that. I wasn’t briefing the policy side, the secretary of defense, but I was briefing the operations side, the National Security Agency’s director of technology. Official wrongdoing can catalyze all levels of insiders to reveal information, even at great risk to themselves, so long as they can be convinced that it is necessary to do so.
Reaching those individuals, helping them realize that their first allegiance as a public servant is to the public rather than to the government, is the challenge. That’s a significant shift in cultural thinking for a government worker today.
I’ve argued that whistleblowers are elected by circumstance. It’s not a virtue of who you are or your background. It’s a question of what you are exposed to, what you witness. At that point the question becomes Do you honestly believe that you have the capability to remediate the problem, to influence policy? I would not encourage individuals to reveal information, even about wrongdoing, if they do not believe they can be effective in doing so, because the right moment can be as rare as the will to act.
This is simply a pragmatic, strategic consideration. Whistleblowers are outliers of probability, and if they are to be effective as a political force, it’s critical that they maximize the amount of public good produced from scarce seed. When I was making my decision, I came to understand how one strategic consideration, such as waiting until the month before a domestic election, could become overwhelmed by another, such as the moral imperative to provide an opportunity to arrest a global trend that had already gone too far. I was focused on what I saw and on my sense of overwhelming disenfranchisement that the government, in which I had believed for my entire life, was engaged in such an extraordinary act of deception.Change has to flow from the bottom to the top.
At the heart of this evolution is that whistleblowing is a radicalizing event — and by “radical” I don’t mean “extreme”; I mean it in the traditional sense of radix, the root of the issue. At some point you recognize that you can’t just move a few letters around on a page and hope for the best. You can’t simply report this problem to your supervisor, as I tried to do, because inevitably supervisors get nervous. They think about the structural risk to their career. They’re concerned about rocking the boat and “getting a reputation.” The incentives aren’t there to produce meaningful reform. Fundamentally, in an open society, change has to flow from the bottom to the top.
As someone who works in the intelligence community, you’ve given up a lot to do this work. You’ve happily committed yourself to tyrannical restrictions. You voluntarily undergo polygraphs; you tell the government everything about your life. You waive a lot of rights because you believe the fundamental goodness of your mission justifies the sacrifice of even the sacred. It’s a just cause.
And when you’re confronted with evidence — not in an edge case, not in a peculiarity, but as a core consequence of the program — that the government is subverting the Constitution and violating the ideals you so fervently believe in, you have to make a decision. When you see that the program or policy is inconsistent with the oaths and obligations that you’ve sworn to your society and yourself, then that oath and that obligation cannot be reconciled with the program. To which do you owe a greater loyalty?
One of the extraordinary things about the revelations of the past several years, and their accelerating pace, is that they have occurred in the context of the United States as the “uncontested hyperpower.” We now have the largest unchallenged military machine in the history of the world, and it’s backed by a political system that is increasingly willing to authorize any use of force in response to practically any justification. In today’s context that justification is terrorism, but not necessarily because our leaders are particularly concerned about terrorism in itself or because they think it’s an existential threat to society. They recognize that even if we had a 9/11 attack every year, we would still be losing more people to car accidents and heart disease, and we don’t see the same expenditure of resources to respond to those more significant threats.
What it really comes down to is the political reality that we have a political class that feels it must inoculate itself against allegations of weakness. Our politicians are more fearful of the politics of terrorism — of the charge that they do not take terrorism seriously — than they are of the crime itself.
As a result we have arrived at this unmatched capability, unrestrained by policy. We have become reliant upon what was intended to be the limitation of last resort: the courts. Judges, realizing that their decisions are suddenly charged with much greater political importance and impact than was originally intended, have gone to great lengths in the post-9/11 period to avoid reviewing the laws or the operations of the executive in the national security context and setting restrictive precedents that, even if entirely proper, would impose limits on government for decades or more. That means the most powerful institution that humanity has ever witnessed has also become the least restrained. Yet that same institution was never designed to operate in such a manner, having instead been explicitly founded on the principle of checks and balances. Our founding impulse was to say, “Though we are mighty, we are voluntarily restrained.”
When you first go on duty at CIA headquarters, you raise your hand and swear an oath — not to government, not to the agency, not to secrecy. You swear an oath to the Constitution. So there’s this friction, this emerging contest between the obligations and values that the government asks you to uphold, and the actual activities that you’re asked to participate in.
These disclosures about the Obama administration’s killing program reveal that there’s a part of the American character that is deeply concerned with the unrestrained, unchecked exercise of power. And there is no greater or clearer manifestation of unchecked power than assuming for oneself the authority to execute an individual outside of a battlefield context and without the involvement of any sort of judicial process.
Traditionally, in the context of military affairs, we’ve always understood that lethal force in battle could not be subjected to ex ante judicial constraints. When armies are shooting at each other, there’s no room for a judge on that battlefield. But now the government has decided — without the public’s participation, without our knowledge and consent — that the battlefield is everywhere. Individuals who don’t represent an imminent threat in any meaningful sense of those words are redefined, through the subversion of language, to meet that definition.
Inevitably that conceptual subversion finds its way home, along with the technology that enables officials to promote comfortable illusions about surgical killing and nonintrusive surveillance. Take, for instance, the Holy Grail of drone persistence, a capability that the United States has been pursuing forever. The goal is to deploy solar-powered drones that can loiter in the air for weeks without coming down. Once you can do that, and you put any typical signals collection device on the bottom of it to monitor, unblinkingly, the emanations of, for example, the different network addresses of every laptop, smartphone, and iPod, you know not just where a particular device is in what city, but you know what apartment each device lives in, where it goes at any particular time, and by what route. Once you know the devices, you know their owners. When you start doing this over several cities, you’re tracking the movements not just of individuals but of whole populations.Unrestrained power may be many things, but it’s not American.
By preying on the modern necessity to stay connected, governments can reduce our dignity to something like that of tagged animals, the primary difference being that we paid for the tags and they’re in our pockets. It sounds like fantasist paranoia, but on the technical level it’s so trivial to implement that I cannot imagine a future in which it won’t be attempted. It will be limited to the war zones at first, in accordance with our customs, but surveillance technology has a tendency to follow us home.
Here we see the double edge of our uniquely American brand of nationalism. We are raised to be exceptionalists, to think we are the better nation with the manifest destiny to rule. The danger is that some people will actually believe this claim, and some of those will expect the manifestation of our national identity, that is, our government, to comport itself accordingly.
Unrestrained power may be many things, but it’s not American. It is in this sense that the act of whistleblowing increasingly has become an act of political resistance. The whistleblower raises the alarm and lifts the lamp, inheriting the legacy of a line of Americans that begins with Paul Revere.
The individuals who make these disclosures feel so strongly about what they have seen that they’re willing to risk their lives and their freedom. They know that we, the people, are ultimately the strongest and most reliable check on the power of government. The insiders at the highest levels of government have extraordinary capability, extraordinary resources, tremendous access to influence, and a monopoly on violence, but in the final calculus there is but one figure that matters: the individual citizen.
And there are more of us than there are of them.
From The Assassination Complex: Inside the Government’s Secret Drone Warfare Program by Jeremy Scahill and the staff of The Intercept, with a foreword by Edward Snowden and afterword by Glenn Greenwald, published by Simon & Schuster.
Sign up for The Intercept Newsletter here.
The post Whistleblowing Is Not Just Leaking — It’s an Act of Political Resistance appeared first on The Intercept.
IN A RECENT INTERVIEW with USA Today, Phil Knight, the co-founder and chair of Nike, expressed puzzlement over Americans’ anger about trade agreements like NAFTA, and concern that this anger is having an effect on the presidential race.
“Everybody’s railing on NAFTA now,” said Knight, currently the 16th-richest person in the U.S., “but since 1996, when we signed NAFTA, the gross national product of the United States has risen three times. Do we really think it would have gone up more than that if we didn’t have trade agreements?”
Knight’s frustration might be understandable if it had some connection to reality. It does not.
The U.S. economy has not tripled in size — or to put it another way, grown by 200 percent — since the signing of NAFTA.
According to the Bureau of Economic Analysis, the U.S. real gross domestic product has actually grown by just 69 percent, or a third of what Knight believes, since the beginning of 1994. (NAFTA was signed in 1993, not 1996, and took effect on January 1, 1994.)
Moreover, if Knight knew the most basic facts about the U.S. economy he would have realized he was wrong without checking. For the GDP to triple in size in 22 years would require an average annual growth rate of over 5 percent — but the U.S. economy didn’t grow that fast, year over year, even once from 1994 to 2016.
So how has Knight latched onto this blatantly wrong factoid? Possibly because there is something that’s tripled in size in the past 20 years: Knight’s own net worth. According to Forbes, Knight’s net worth in 1996 was, adjusted for inflation, about $8 billion; today it’s $25 billion. You can understand why he’d be convinced the economy is in great shape.
And it’s not just Knight: a belief in blatantly wrong numbers is a tradition among U.S. elites anxious about elections and trade. In December 2007, the Washington Post editorial page was similarly concerned that Barack Obama and Hillary Clinton were listening to voters’ concerns about trade deals. Why didn’t anyone care about NAFTA’s benefits for Mexico, the Post wondered, since its GDP had “more than quadrupled since 1987″?
In fact, Mexico’s economy had grown by just 84 percent from 1987 to 2007, not 300 percent. The Post failed to correct its made-up statistic even after the paper’s own fact checker called it “misleading,” and it’s still sitting there on the Post website nine years later.
This is why being an American feels sort of like being a passenger on a plane approaching the Rockies when the flight crew announces there’s a big tunnel in Mt. Elbert and they’re going to fly through it to the other side. You’d like to think they’re lying and will pull up at the last second. But in fact they honestly believe that, and are going to plow the plane right into the side of the mountain.
Sign up for The Intercept Newsletter here.
The post Billionaire Nike Co-Founder Confuses His Net Worth with U.S. Economic Growth appeared first on The Intercept.
(The English version of this article can be read here.)
UM JUIZ ESTADUAL determinou que as operadoras de telefonia bloqueassem o WhatsApp, serviço de mensagens online extremamente popular em todo o país, por 72 horas. A decisão, emitida em 26 de abril, tornou-se pública hoje quando foi notificada às operadoras de telefonia. Ela entrou em vigor às 14h; a partir deste horário, as pessoas que tentaram usar o serviço no Brasil não podiam se conectar, nem enviar ou receber qualquer mensagem. O não cumprimento da decisão sujeitará as prestadoras a uma multa de 500 mil reais por dia.
O WhatsApp é o aplicativo mais utilizado no Brasil, um país de 200 milhões de pessoas (ele é agora propriedade do Facebook, o segundo aplicativo mais usado no país). Estimativas apontam que 91 porcento dos brasileiros usuários de telefonia móvel – mais de 100 milhões de indivíduos – usam o WhatsApp para se comunicar gratuitamente (o app tem 900 milhões de usuários ativos diariamente ao redor do mundo). Os brasileiros passaram a manhã, durante as horas anteriores ao bloqueio, enviando mensagens no WhatsApp avisando que o serviço seria interrompido por três dias.
A determinação foi feita pelo mesmo juiz, Marcel Maia Montalvão, de uma pequena cidade no estado de Sergipe, que dois meses atrás ordenou a detenção do Vice Presidente do Facebook na América Latina, Diego Dzodan, por conta da indisposição do WhatsApp em cooperar com uma intimação feita como parte de uma investigação criminal. O juiz disse que a detenção foi justificada pelo “reiterado descumprimento de ordens judiciais” pelo Facebook em uma investigação de tráfico de drogas. Em conformidade com a determinação, Dzodan foi preso pela polícia federal e mantido sob custódia por um dia inteiro, até que um tribunal de apelação anulou a ordem.
Depois, o executivo do Facebook insistiu que “da maneira como a informação está criptografada de um telefone para o outro, não há nenhuma informação armazenada que possa ser entregue às autoridades”. O WhatsApp também disse: “O WhatsApp não pode fornecer informações que não tem”. Segundo a Folha de S. Paulo, maior jornal do Brasil, a ordem para a suspensão do WhatsApp de hoje decorre daquele mesmo caso.
A determinação extraordinária reflete o que está se tornando uma controvérsia global na luta das companhias de tecnologia para oferecer criptografia “end-to-end” aos seus usuários. Esse serviço, que tem cada vez mais demanda na sequência das reportagens sobre os arquivos fornecidos por Edward Snowden, demonstram que apenas os usuários – mas não as companhias – podem acessar os conteúdos que estão compartilhando. A fixação pós-Snowden das companhias para demonstrar um legítimo comprometimento com a proteção da privacidade de seus usuários (motivado pelo próprio interesse nos negócios) gerou uma cisão entre o Silicon Valley e o governo dos EUA, parceiros outrora totalmente colaborativos em relação à vigilância, criando uma guerra amarga e prolongada de relações públicas que culminou, no mês passado, com a batalha Apple/FBI sobre o acesso a iPhones.
Como resultado das proteções de criptografia, a posição do WhatsApp em resposta às intimações diz que eles são incapazes de fornecer as comunicações dos usuários porque a criptografia não mantém apenas governos e atores não governamentais longe dos dados, mas também a própria companhia. Ao longo dos últimos anos, muitos países começaram a criar leis para evitar que as empresas usem qualquer criptografia que não possa ser contornada, e a administração Obama tem debatido se apóia uma legislação que permitiria apenas o uso de criptografia para a qual as agências governamentais tenham acesso “backdoor” (nos anos 90, o governo Clinton usou o caso do atentando em Oklahoma City para promover uma lei similar, mas ela foi bloqueada por uma coalizão de defensores da privacidade de ambos os partidos no congresso).
ESTA NÃO É a primeira vez que o serviço do WhatsApp foi interrompido no Brasil. Em dezembro, em um caso separado, um juiz de primeira instância de São Paulo determinou que as operadoras bloqueassem o aplicativo por 48 horas em represália a sua indisposição em cooperar com uma investigação criminal. Um tribunal de segunda instância anulou a decisão horas depois da suspensão do serviço, invocando “princípios constitucionais” para dizer que “não se mostra razoável que milhões de usuários sejam afetados em decorrência da inércia da empresa”.
De muitas maneiras, o Brasil – com um enorme número de usuários de internet e uma crescente população online de pessoas jovens – é um campo de batalha chave na luta global pela liberdade na internet. O Wall Street Journal chamou o Brasil de “a capital universal das mídias sociais”. Em janeiro, depois da última suspensão do WhatsApp, dois analistas do Instituto Igarapé radicado no Brasil, Robert Muggah e Nathan Thompson, escreveram no The New York Times que “o país tem uma das populações de usuários de internet que mais crescem no mundo. Ferramentas online como o Facebook, Twitter e WhatsApp não são usadas apenas para expressão opiniões; são uma alternativa acessível aos serviços de telecomunicação extremamente caros”.
Em um país com sérios conflitos políticos e uma população online engajada, o debate sobre a liberdade de internet se tornou muito proeminente no Brasil. Junto com a Alemanha, o governo brasileiro, depois das revelações de Snowden, foi o mais eloqüente em denunciar os EUA por sua excessiva vigilância com a NSA (o Brasil era um alvo chave na espionagem). Em 2014, o governo criou o que chamou de uma lei para proteger a liberdade da internet, o “Marco Civil da Internet”, que forneceu alguma proteção à privacidade mas também cedeu novos poderes de vigilância ao governo. No mês passado, o governo exigiu, e recebeu, uma nova e draconiana lei anti-terrorismo que concede a ele novos poderes legais extremos (fazendo com que o ex-presidente Lula da Silva discordasse de seu partido, que controla o governo, dizendo ao The Intercept, em entrevista, que era contra a lei).
Agora, como reportou o The Intercept na semana passada, novas propostas prestes a serem aprovadas (a CPI de crimes cibernéticos) poderão codificar poderes de desligamento da internet do tipo que o juiz estadual impôs hoje. Em uma postagem no Facebook, Ronaldo Lemos, fundador-diretor do Instituto de Tecnologia e Sociedade do Rio de Janeiro e um doso arquitetos da legislação do Marco Civil da Internet, de 2014, disse: “Amanhã a CPI dos Cibercrimes vota proposta para tornar esse tipo de bloqueio amparado por lei. Se a proposta da CPI for em frente, esse será o novo normal do país. Todas as semanas teremos notícias de sites e serviços bloqueados. Tal como na Arábia Saudita ou na Coreia do Norte”.
É impressionante assistir a um único juiz instantaneamente desligar um meio de comunicação online essencial para o quinto maior país do mundo. Os dois especialistas em segurança escreveram no NYT sobre a primeira suspensão do WhatsAPP: “a ação do juiz foi imprudente e representa uma ameaça potencial e de longo prazo a liberdade dos brasileiros”. Mas não há dúvidas de que é só um sinal do que está por vir para outros países que não o Brasil: haverá, sem dúvida, batalhas similares em inúmeros países ao redor do mundo sobre os direitos que as empresas têm de oferecer proteção à privacidade de seus usuários.
Traduzido por: Erick Dau
Sign up for The Intercept Newsletter here.
The post 100 milhões de brasileiros estão sem WhatsApp graças a um juiz estadual appeared first on The Intercept.