Our Criminal Surveillance State.

“Leave aside the Patriot Act and FISA Amendments Act for a moment, and turn to the Constitution. The Fourth Amendment obliges the government to demonstrate probable cause before conducting invasive surveillance. There is simply no precedent under the Constitution for the government’s seizing such vast amounts of revealing data on innocent Americans’ communications.”

As scholars Jennifer Stisa Granick and Christopher Jon Sprigman remind us in the NYT, make no mistake: the NSA’s current surveillance regime is entirely illegal. “We may never know all the details of the mass surveillance programs, but we know this: The administration has justified them through abuse of language, intentional evasion of statutory protections, secret, unreviewable investigative procedures and constitutional arguments that make a mockery of the government’s professed concern with protecting Americans’ privacy. It’s time to call the N.S.A.’s mass surveillance programs what they are: criminal.”

As I said last time, this shouldn’t even be in dispute. But far too many ostensible Democrats seem to assume this culture of lawlessness is ok now that Obama’s at the helm. Once again, we have lost our way.

“If convicted on all three counts, the former N.S.A. contract-systems administrator could face thirty years in jail. On the Sunday-morning talk shows I watched, there weren’t many voices saying that would be an excessive punishment for someone who has performed an invaluable public service.” In related news, The New Yorker‘s John Cassidy laments the cowardice of today’s media with regards to the fate of Edward Snowden: “The Obama Administration doesn’t want him to come home and contribute to the national-security-versus-liberty debate that the President says is necessary. It wants to lock him up for a long time”

The mantra of good journalism should be to afflict the comfortable and comfort the afflicted, but, here again, our broken, trivia-obsessed, lapdog-riddled fourth estate has it exactly backward. It is infuriating to behold.

Still, at the very least, Frank Rich has ably summed up all you need to know about NBC’s David Gregory, who recently queried on-air whether Glenn Greenwald should be jailed for breaking the Snowden story:

“Is David Gregory a journalist? As a thought experiment, name one piece of news he has broken, one beat he’s covered with distinction, and any memorable interviews he’s conducted that were not with John McCain, Lindsey Graham, Dick Durbin, or Chuck Schumer…In any case, his charge is preposterous…I propose that Gregory be full-time on Today, where he can speak truth to power by grilling Paula Deen.”

Snowden’s Secret.

“‘I don’t see myself as a hero,’ he said, ‘because what I’m doing is self-interested: I don’t want to live in a world where there’s no privacy and therefore no room for intellectual exploration and creativity.'”

Breaking everywhere the past week: 29-year-old former CIA IT guy and defense contractor Edward Snowden reveals to Glenn Greenwald that the NSA has been indiscriminately collecting everyone’s phone records and gouging into the data networks of Apple, Google, Facebook, and other mainstays of today’s social media. “The Prism program allows the NSA, the world’s largest surveillance organisation, to obtain targeted communications without having to request them from the service providers and without having to obtain individual court orders.”

Sadly, this isn’t all that surprising. There have been intimations that the NSA has been up to no good — even beyond the warrantless wiretap fiasco under Dubya — since that weird visit to John Ashcroft’s hospital bed. Nor, sadly, is it all that surprising that — despite saying exactly the opposite in 2007 — our current President is both fine with these surveillance practices and authorizing them. (And at least from my perspective, the idea that getting the rubber stamp approval of a secret FISA court that never says no makes it all ok does not hold water.)

This is exactly what I was talking about last update. Obama acts tortured about continuing all of Dubya’s most terrible civil liberties violations, but then goes ahead and does them anyway. For Crom’s sake, he’s even picked James Comey, the guy who approved warrantless wiretaps back in 2006, to be the new FBI chief. And because this president and this administration is so brazenly two-faced about their anti-terror policies, you end up with disturbing polls like this:

Speaking of which, at the very least these revelations of blatant NSA overreach have had the healthy effect of exposing which alleged lefties out there walk the walk.

For example, in the Senate: On one hand, we have Ron Wyden, Mo Udall, and Jeff Merkley calling out Obama for continuing with this extra-legal, ginormous-net approach to surveillance. “‘As far as we can see, all of the useful information that it has provided appears to have also been available through other collection methods that do not violate the privacy of law-abiding Americans in the way that the Patriot Act collection does,’ Udall and Wyden said.”

On the other hand, here’s ostensibly Democrat Dianne Feinstein yesterday going full Body Snatcher about Snowden: “‘I don’t look at this as being a whistle-blower,’ Sen. Dianne Feinstein (D-Calf.) said. ‘I think it’s an act of treason.‘” (FWIW, John Boehner and Lindsey Graham were right there with her.) Of course, it’s never “treason” when Feinstein continually does it, and, in any case, this wasn’t breaking news either: The senior Senator from California has long been a quintessential “symbol of the worthless Beltway Democrat.”

This revealing breeze stirred by the NSA revelations is coursing through media outlets too. On one hand, Slate‘s Fred Kaplan has — quite correctly — called for James Clapper’s resignation, given that he flat-out lied to Congress: “We as a nation are being asked to let the National Security Agency continue doing the intrusive things it’s been doing on the premise that congressional oversight will rein in abuses. But it’s hard to have meaningful oversight when an official in charge of the program lies so blatantly in one of the rare open hearings on the subject.” Spot on.

Meanwhile, TPM’s Josh Marshall, who likes to pretend his blog is a font of independent thinking, hems and haws about it all in classic pusillanimous Village-think fashion, all the while making sure never to say anything that might harm his establishment respectability. “I’ve made clear that I don’t see Manning as a hero or a whistleblower or really anything positive at all…Pretty early I realized that to his supporters Manning was a whistleblower who was being persecuted by the government, almost like a political prisoner or prisoner of conscience.” No, Josh, it doesn’t “seem” that way “to his supporters” — That is in fact what is %#%@ happening.

In any case, so as not to fall into the same trap, I’ll just say it outright: First, if Snowden and Manning are traitors, then so is Daniel Ellsberg and so, for that matter, is Dianne Feinstein and any other politician or government official who leaks when it’s convenient. (Also, sorry, folks. there is no substantive difference between revealing secrets to the criminal Julian Assange or to the venerable Bob Woodward. But please do let me know when Richard Armitage is put in a sweatbox for 23 hours a day.)

Second, this vast surveillance apparatus NSA has been constructing is both obviously overkill and clearly legally and constitutionally repugnant, and if this president lived up to even half the rhetoric he continually espoused before he was elected, he would have ended it years ago. Quite frankly, the doubletalk from him, and from so many other Democrats about these revelations so far, is both inexcusable and out-and-out pathetic.

You’re On File.

“Under the new rules issued in March, the National Counterterrorism Center, known as NCTC, can obtain almost any database the government collects that it says is ‘reasonably believed’ to contain ‘terrorism information.’ The list could potentially include almost any government database, from financial forms submitted by people seeking federally backed mortgages to the health records of people who sought treatment at Veterans Administration hospitals.”

The WSJ tells of the (very limited) debate withing the administration that accompanied the NCTC’s new database on everybody. “It’s breathtaking’ in its scope, said a former senior administration official familiar with the White House debate.”

The New Haymarket.

What I said last year stands. The world doesn’t need any more 9/11 retrospectives. Still, this NASA picture from that dark day is pretty impressive, so there’s that.

I will say this: Since last week we watched Democrats — Democrats — chant USA, call out Mitt Romney for being insufficiently for the troops, and all but roll the severed head of Osama Bin Laden out on stage, perhaps it’s time to regain a little perspective.

9/11 was a horrible crime that demanded justice. It was also an event, it has now become clear, that could have and should have been prevented by the Dubya administration using traditional, pre-9/11 intelligence methods. Since that dark day, nine people have died in our indefinite detention prison camp at GitMo. The only person being prosecuted for the Dubya-era torture regime is the whistleblower. And we’re now set to unleash a wave of SKYNET-like drones over our own territory in the name of keeping us safe.

It’s long past time to stop compounding the tragedy of what happened in New York and Washington eleven years ago by shredding the constitution in response. It’s time to get back to being America again.

Devil in a Blue Dress.

(Ok, admittedly, that’s still unsubstantiated. Sorry, couldn’t resist.) In any event, a sturdy and plodding workhorse of a biopic, Clint Eastwood’s J. Edgar attempts to humanize the man who fanned forty years of fears about Communism to become architect of the F.B.I. and one of the most powerful figures in Washington. It’s…not bad, and I would say I was engaged for most of the movie’s run. But, even despite all the Brokeback Mountain-style kabuki restraint that Eastwood must’ve felt he had to employ to do justice to the are-they-or-aren’t-they relationship of Hoover and longtime partner Clyde Tolson, a film about a figure as polarizing as J. Edgar Hoover should take stronger stands about its subject. Despite some very good (and, in di Caprio’s case, very bizarre) performances, this is mostly biopic mush.

It doesn’t help that Eastwood has yet again opted for the tinkly piano and gray palette that seems to characterize all of his historical pictures. This worked wonders for Letters of Iwo Jima, not so much for Flags of our Fathers and this film. Here, Eastwood has set a story beginning in 1919 — perhaps the most lurid and tumultuous single year for America in the 20th century (I’m only ever-so-slightly biased on this) — and made it look like a drab, washed-out daguerrotype. In that fateful summer, after an anarchist’s bomb blows up the front porch of Attorney General A. Mitchell Palmer’s house in the ritzy West End of Washington (his neighbors, Franklin and Eleanor Roosevelt, had just parked down the street), Hoover is hand-picked to run the new “General Intelligence Division” of the Justice Department that will bring the perpetrators to justice.

With previous experience at the Library of Congress in organizing information, Hoover soon takes on two key assistants in Tolson (Armie Hammer, once again exuding Ivy League entitlement) and personal secretary Helen Gandy (Naomi Watts, who gets the best of the age make-up), and quickly attempts to make a CSI of the GID. Cut to forty years later, and Hoover — now balding, paunchy, and covered in latex — is obsessively snooping on Martin Luther King and making veiled threats to Attorney General Bobby Kennedy about his brother’s sleeping habits. With our two historical poles established, the rest of J. Edgar flits back and forth in time, telling the story of its protagonist as both a young and old man – Other than these two moments, the film spends most of its time, strangely enough, dealing with the kidnapping of the Lindbergh baby. (In 2004, when discussing The Alamo, I noted how fun it is to cast the story of American history with actors. Let me say that Josh Lucas totally works as Charles Lindbergh.)

For the most part, J. Edgar is an innocuous edutainment. But it also has some serious problems, and not just the standard-issue groanworthy biopic tropes like Freudian parent issues overdetermining the subject’s entire life story. (Here, Mom (Judi Dench) is a stern and overbearing sort who forces Hoover to bury his secrets within, even as he’s trying to pry up everyone else’s.) Y’see, it comes out rather late in the third act that Eastwood and screenwriter Dustin Lance Black have attempted to add a Fight Club-ish “unreliable narrator” schtick to the film: The whole time, we’ve been watching Hoover’s sanitized retelling of his own history. But this should-be-huge reveal is underplayed, and thus becomes somewhat buried. And, as a result, people who don’t know anything about the times are going to leave a theater with a very wrongheaded sense of the story.

For example, it’s never mentioned or adequately explained that the 1919 anarchist bombings which open the film only killed two people — one of them the bomber on Palmer’s porch, who either tripped or mis-timed the blast — and that, not unlike recent times, pretty much everything Palmer and Hoover did subsequently in 1919 was a massive overreaction. (Hence, the “Red Scare.”) They show Hoover and a team of G-men knocking down an anarchist printing press in Paterson, New Jersey linked to the bombs, but, with the arguable exception of Emma Goldman’s deportation proceedings at Ellis Island, they don’t show any of the many, many raids that were just glorified fishing expeditions and/or excuses to remove foreign-born potential Communists from American shores.

Similarly, when the film briefly depicts the Centralia Massacre that same year, it shows events in a way that Hoover, and many other Americans, probably saw them — I.W.W. radicals killing patriotic veterans in a turkey shoot. But that depiction does violence to the much more complicated truth of the event, which involved American Legion members deciding first to go march on some radical Wobblies. And you’d never know that the culmination of that day was an I.W.W. member and veteran grabbed from jail by soldiers, beaten, castrated, hung, hung, hung, shot, and shot. Again, Eastwood and Black have written themselves a pass for this, because they hint Hoover is an unreliable narrator at the end of the film. But that lede is buried.

So the history has definite issues, and this same tendency towards whitewashing detracts from the whole film. Granted, given how little we know, the Tolson-Hoover relationship should perhaps be treated with this discretion — although my understanding is they were more conceived of as a couple than this film lets on. (FWIW, Hammer is quite good here despite some unfortunate age-makeup, and a Supporting Actor nod is likely.) But, that aside, and to be blunt about it, sometimes an asshole is just an asshole. One can argue that Hoover had all the reasons in the world to be the way he was — an overbearing mom, a traumatic secret, whathaveyou. But this film spends more time trying to make us feel charitable towards its protagonist than it does putting his behavior in any kind of appropriate context. (For example, why is Hoover obsessed with MLK? Should he be wiretapping him? It’s never really addressed.) Should we feel for J. Edgar, after hearing his story? Perhaps, yes. But we should also leave the theater with a clearer sense of how illegal and often reprehensible his rise to power really was.

PATRIOT Games.

“When the clock strikes midnight tomorrow, we would be giving terrorists the opportunity to plot attacks against our country, undetected,’ Senate Majority Leader Harry Reid said on the Senate floor Wednesday…'[Any delay would] increase the risk of a retaliatory terrorist strike against the homeland and hamper our ability to deal a truly fatal blow to al-Qaida.“

Honestly, what is this horseshit? In a disturbingly complete 180 from his comments the last time this came up back in 2006 — although, to be fair, he eventually folded like an accordion then too — Senate Majority Leader Harry Reid dusts off the Cheneyite talking points to call for an immediate, unamended extension of the PATRIOT Act. (It passed the Senate today, 72-23.)

Contrast this with Reid in 2005: “‘We killed the Patriot Act,’ boasted Minority Leader Harry Reid…to cheers from a crowd at a political rally after the vote.” Ladies and gentlemen, our Democratic Senate Majority Leader. And, yet, however hackadocious Reid is being in this instance, let’s remember — this is coming from the top, from the constitutional scholars at the White House. After all, as Mike Riggs notes in Reason: “If the PATRIOT Act lapses, and a sarlacc does not swallow LAX immediately after, it’ll be that much harder to convince Americans that those provisions are necessary.“

Mission Accomplished.

“For over two decades, bin Laden has been al Qaeda’s leader and symbol, and has continued to plot attacks against our country and our friends and allies. The death of bin Laden marks the most significant achievement to date in our nation’s effort to defeat al Qaeda. Yet his death does not mark the end of our effort. There’s no doubt that al Qaeda will continue to pursue attacks against us. We must — and we will — remain vigilant at home and abroad.“

So, yes, as you may have heard, we finally found Osama Bin Laden, fulfilling a key promise President Obama made during the 2008 campaign. While I would have preferred to see the perpetrator of 9/11 captured alive and brought to trial — cause that’s how we do justice here in the US of A — congrats to the president’s team, the analysts who did the hard work, and the men and women who executed the operation, on finally getting their man.

All that being said, the second half of the president’s statement above is troubling. The death of Bin Laden should mark the beginning of the end of the 9/11 decade. With the splinter finally removed, it is time to take a long hard look not just at our continuing war in Afghanistan — after all, Osama was eventually found in Pakistan, mainly through what the Bunk would call good po-lice work — but at all the questionable and/or extra-constitutional actions we have taken in the name of fighting the terr’ists since September 11th. (Newsflash: Torture had nothing to do with capturing OBL.) If the death of Bin Laden doesn’t move us to this reconsideration, what then ever will?

Unfortunately (and of course), that doesn’t seem to be what’s happening. Instead, Congress is laying the foundation for a wider war: “Contained in the National Defense Authorization Act for 2012 is a new authorization to use military force that would grant the executive branch the power to ‘address the continuing and evolving threat posed by these groups.’ In practice, that means the president could use military force against any suspected terrorist across the globe — indefinitely.“

Indefinite war? No thanks. There’s been an eerie touch of Emmanuel Goldstein in the way Bin Laden was used to justify all manner of extraconstitutional actions and civil liberties violations under Dubya — actions that have been ratified and continued under Obama. Now that the Bogeyman is dead, it’s time to stand down. It’s time to start acting like America again.

Palantir Pervasive.

“After the Anonymous attacks and the release of Barr’s e-mails, his partners furiously distanced themselves from Barr’s work. Palantir CEO Dr. Alex Karp wrote, ‘We do not provide — nor do we have any plans to develop — offensive cyber capabilities…’ But both of the Team Themis leads at these companies knew exactly what was being proposed…They saw Barr’s e-mails, and they used his work. His ideas on attacking WikiLeaks made it almost verbatim into a Palantir slide about ‘proactive tactics.’“

Strange powers have our enemies, and strange weaknesses! In Wired, Nate Anderson of Ars Technica fdelves into the story behind the highly troubling HBGary leaks. Among other things, these leaks have already revealed that:

Bank of America contemplated hiring private-intelligence goons — the aforementioned HBGary, the aptly-named Palantir Technologies, and third-wheel Berico Technologies — to spread anti-Wikileaks disinformation discredit Salon’s Glenn Greenwald.

The Chamber of Commerce has been using their services to conduct surveillance on and smear progressives and unions.

These organizations are manufacturing sock-puppets wholesale to create an “illusion of consensus” on behalf of their clients.

Private security firms like the aforementioned ones above are, as Marcy Wheeler puts it, deploying “intelligence techniques developed for use on terrorists [against] citizens exercising their First Amendment rights.” And

These morons actually tried to charge their clients $2000 a day for what amounts to trolling services.

As HBGary target Glenn sums it up: “What is set forth in these proposals for Bank of America quite possibly constitutes serious crimes. Manufacturing and submitting fake documents with the intent they be published likely constitutes forgery and fraud. Threatening the careers of journalists and activists in order to force them to be silent is possibly extortion…Attacking WikiLeaks’ computer infrastructure in an attempt to compromise their sources undoubtedly violates numerous cyber laws. Yet these firms had no compunction about proposing such measures…and even writing them down. What accounts for that brazen disregard of risk? In this world, law does not exist as a constraint.“

In other words, they do not fear the law because it has forsaken these lands. And, hey, when you consider that nobody has yet gone to jail for lying the American people into a trillion-dollar war, setting up an illegal, unconstitutional, and inhumane torture regime, or fraudulently abetting or even precipitating a multi-trillion-dollar economic meltdown, their brazen calculation seems like a pretty safe bet.

A Mole in the Movement.

“Responding to the newspaper’s requests, the government instead released 369 pages related to a 1970s public corruption probe that targeted Withers — by then a state employee who was taking payoffs — carefully redacting references to informants — with one notable exception. Censors overlooked a single reference to Withers’ informant number.“

Thanks to one small clerical error, the Memphis Commerical Appeal uncovers the hidden life of famed civil rights photographer Ernest Withers, who apparently doubled as an FBI informant. [Reaction.] “‘He was the perfect source for them. He could go everywhere with a perfect, obvious professional purpose,’ said Pulitzer Prize-winning historian David Garrow, who, along with retired Marquette University professor Athan Theoharis, reviewed the newspaper’s findings.” Shady.

United [REDACTED] of [CLASSIFIED].

“The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work.“

Sigh. In the WP, Dana Priest and William Arkin attempt to survey the breadth and depth of our post-9/11 intelligence complex, and the results are troubling, to say, the least. Basically, nobody, not even the SecDef, has any clue how big some of these programs are, or what the armies of private contractors are up to half the time. “After nine years of unprecedented spending and growth, the result is that the system put in place to keep the United States safe is so massive that its effectiveness is impossible to determine…’Because it lacks a synchronizing process, it inevitably results in message dissonance, reduced effectiveness and waste,” Vines said. “We consequently can’t effectively assess whether it is making us more safe.’” If you have to ask…

For a good overview of the Post‘s laudable coverage, check out this worthwhile post from Wired‘s Danger Room and Glenn Greenwald’s pithy summation of the problem. “This world is so vast, secretive and well-funded that it’s very difficult to imagine how it could ever be brought under control…[Meanwhile] The Drudge and Politico sewers still rule our world — ‘fights over nothing’ — and happily distract us from Top Secret America, what it does and what it takes.” But, hey, what’s Sarah Palin been up to?