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Monday, March 31

Why Edward Snowden should receive the Nobel Peace Prize

I understand it's a very crowded field this year, with many worthy nominations.  Yet I do assert that Edward Snowden should receive the prize, for the following reasons.  With the help of several courageous members of the press, he has done more than any single person to alert the world community, at both the levels of government and the general publics,

1. That the dangers from unrestricted government-sponsored clandestine cyberwar are far more advanced than was previously known by all but a veritable handful of people.

2. That methods used by the U.S. National Security Agency, the world's vaunted premier intelligence-gathering agency, have been wholly inadequate in determining serious threats to the United States and other countries from international terrorist groups.

3. That digital means of communication, on which all modern societies now depend, had been corrupted by a handful of governments in collaboration with computer-related companies.      

4.  That reasonable expectations of privacy by highest-level government officials in democratic countries have not been honored by the United States and a handful of other governments working secretly in concert.      

By all this Edward Snowden has delivered incontrovertible proof that the threat to humanity from aggressive governments is no longer readily perceived in massed armies at national borders but is as silent as carbon monoxide, as pervasive as a computer terminal in a person's home. 

Edward Snowden has also exemplified the conscience that is the best defense of world peace, and which was set forth in Nuremberg Principle IV, on the matter of following superior orders:

"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."

Finally, and while I doubt the Nobel Peace Prize committee would consider this is a valid argument, a very personal observation:

I think Winston Churchill would roll in his grave if he saw what had become of the governments of the United Kingdom and the United States of America.  Not that I would dare put words in his mouth, but I believe he would agree that this is not peace through strength, that the situation Edward Snowden exposed is base chicanery managed by men not even fit to command a pickpocket gang.

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Sunday, March 30

The Pirates of Libel Penance: Jay Currie channels Gilbert & Sullivan and Queen to bring fresh perspective to the defamation suit of "Dr Dawg" vs "Peter O’Donnell."

Marc Lemire has sent me -- unsolicited, mind you -- his account of Day 1 of the trial. This means if I wanted to understand what the law suit is about I'd have a fighting chance if I opened the email. But from his live-blogging of Day 4, which introduced me to the case, I think I can say these are the only things I need to know:

1. In part because no one in this trial involving multiple pseudonymous names is entirely clear on who is suing whom, there is a very real chance the plaintiff has mistakenly sued himself.  A suggestion of this possibility might have surfaced during a particularly strange turn during Day 4 of the trial, which I passed along to Pundita readers on March 28 via Marc's account.
  
2. This suit, which launched in 2010, is over "impugned" words as the Court terms them (or is it "impugning" words?) posted on a Canadian blog called Dawg's Blawg. To be exact, seven (7) words.  

3. Bloggers are now taking themselves far too seriously. No one anymore gives a rat's hindquarters what insults people hurl at each other on the Internet, especially when the verbal combatants speak behind pseudonyms such as Miss Mew and Dr Dawg.   

4.  Canada needs to update its libel laws, which (I have on authority from a Canadian) haven't changed since the days when dueling was used to repair defamed reputation, and get serious about outlawing SLAPP suits.

5.  Death on the dueling ground is almost preferable to the ridiculously and one might argue criminally harsh expenses and financial penalties borne by Canadian defendants who lose in frivolous libel suits.  This says nothing of the agony to the Canadian taxpayer, who perforce supports this misreading of justice.             

All this caused me to wonder how Jay Currie, a person of sound mind, got subpoenaed to testify in the matter of "Dr Dawg" vs "Peter O’Donnell."  From his reply to just that pointed query I realized that I'd been wrong when I'd invoked Lewis Carroll's real name in an attempt to convey to Pundita readers the essence of the trial.  This isn't Through the Looking Glass; this is Gilbert and Sullivan terrain. 

One thing led to another when I mentioned my discovery to Jay and so we have the beginnings of an operetta that G&S could take to heart.  He modestly avers that he has only a minor talent for Dawgerel but I think he shows real promise as a lyricist, although I'll confess I wrote the libretto and added the last stanzas.

The PlayersBasso profundo: Dawg
Quavering soprano: Miss Mew
Tenor:  Judge
Chorus:  Themselves

Scene
Aboard the captured HMS Canadian Civil Courts System

ACT I
CURTAIN RISES

To the tune of Queen's Bohemian Rhapsody and accompanied by a great many exclamation marks which I've omitted here for the benefit of the reader's eyesight: 

CHORUS: [hoisting the skull and crossbones flag up the mast] Defamation. DEFAMATION. Will not let you go.

MISS MEW: l'll repeat it.

DAWG: I'll sue.

MISS MEW: And I will too.

CHORUS: This will not pass. This will not pass. Defamation is a very bad sin.

DAWG: I'll not take slander.

CHORUS: No you won't.

Miss Mew: Nor will I.

CHORUS: The truth of it is that Dawg's a shit. Dawg's a shit.

DAWG and MISS MEW: Doesn't matter, doesn't matter. Defamation, reputation. Impugned words, worse than turds.

CHORUS: Worse than turds.

JUDGE:  [looking up from his copy of Car and Driver magazine] Sheriff, clear my courtroom of these ruffians.

CHORUS: His Honor called us ruffians. Make him walk the plank.  First rum, then the plank. 

MISS MEW: First catnip.

DAWG: First biscuit.

MISS MEW: Catnip.

[Dawg chases Miss Mew around the deck, the Judge throws his magazine at Dawg]
CURTAIN FALLS
[Miss Mew runs up the curtain, bringing it down on the heads of the entire cast]

***********

Friday, March 28

Dr Dawg's Blawg trial: Please someone tell me Marc Lemire is making the whole thing up

I've just discovered from an email sent last night that Canada's Marc Lemire has been live-blogging something called "the pseudonymous [blogosphere] defamation trial of 'Dr Dawg' vs 'Peter O’Donnell' " in Ottawa.  Yesterday was Day 4 of the trial, "and what an exciting day it was" as he observed.

Now there are three possibilities here.

1) Marc was finally driven insane by the Canadian Human Rights Commission persecution of him and now believes himself the reincarnation of Charles Lutwidge Dodgson.

2) Marc is actually the reincarnation of Charles Lutwidge Dodgson.

The third possibility, which is that he's giving a straightforward summary of an actual trial, is frankly too
horrible to contemplate at any length.  As evidence, this passage from the summary (text links omitted here):
Most of the day was taken up by [attorney] Barbara Kulaszka [reading for the court] various blog posts and comments to “Dr Dawg”, but when she read out a posting on the Dawg's Blawg written by a poster named “Peter 1”, Dr Dawg's lawyer seemed to grow increasingly agitated.

In an odd Perry Mason-like moment – but in reverse – lawyer Peter Burnet jumped to his feet and blurted out to the court (paraphrasing) “counsel knows that Peter 1 is me and is introducing this to play games”.

The judge seemed a bit taken a back by this. Kulaszka responded that she had no intention of asking who Peter 1 was and “resents the implication that Mr. Burnet is making”.

There was a long moment of absolute silence in the court, then Kulaszka moved on and left it in the air about Peter 1 being Dr Dawg's own lawyer Peter Burnet, who is a frequent commenter on Dawgs Blawg.

It is ironic that Peter Burnet would 'out' himself as the frequent commenter Peter 1. Interestingly, the posts by Peter 1 were not necessarily always supportive of the perspectives that Dr Dawg took, and in fact they seemed to argue at times over political perspectives.
But as a general observation regarding defamation on the blogosphere, I think Marc is right. This looks like the next battlespace for Canadians who value freedom of speech.

 The bar is set very high in the USA for defamation suits; those who've tried to use the British courts to muzzle American authors have always been beaten back by our judicial system. Yet Edward Snowden's revelations have been a sharp reminder that defending freedom is a never-ending process not a goal.
  
As to Canada, those who wanted to keep Section 13 on the law books, including the CHRC,  have in their view suffered a setback, not a defeat, when the law was stricken by a parliamentary vote. From Marc's summary of strange events unfolding in an Ottawa courtroom it does seem that while they're regrouping those defenders or Section 13 are busy at the back door with defamation suits.  Americans take note.

"The trial continues tomorrow [today] at 9:30am in the Ottawa courthouse.  The cross-examination by Barbara Kulaszka of Dr Dawg continues."

See Marc's post for how to access his ongoing live-blogging of the trial if it actually exists.

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Thursday, March 27

Washington Scenes

Washington, D.C. has gotten a very bad name in recent years. But it's my home.  Here, a couple short stories dredged from my memory to introduce you to some Washingtonians who had their priorities in order.

Winter:  Always keep a grip on your kill
 
One early Sunday morning almost 20 years ago I was walking on 17th Street, Northwest.  There had been heavy snow so the city was even quieter than usual for that day and time.  No cars on the road. No one else on the sidewalk.

I didn't dress warmly enough for this trek, I thought morosely as I trudged along in the freezing silence.

I spied a man and a dog, an Irish Setter, walking in my direction.  They were a few blocks away but even from that distance I could see it was a happy dog, springing along, its tail held jauntily high.  As they drew nearer I saw the Setter was carrying something in his mouth. Then I came to full a stop as I stared in amusement.

The dog had a large, well-filled McDonald's takeout food bag clamped in his jaws.
                      
The man, seeing my expression, said conspiratorially as they passed by, "We've been hunting."

Summer:  Always keep a grip on your chapeau

Upper Northwest commerical district, dead of summer in the District of Columbia, maybe 30 years ago. The sidewalks seeming to melt in the oppressive heat and humidity that had gone on day after merciless day for weeks.  The people who hadn't fled the heat were drooping by then, marking time for the end of the work week so they could drive to the beach or start their vacation.
 
It wasn't lunch time yet.  The streets were almost empty. (Washington then was a much smaller city than today.)  I stopped shuffling along upon hearing the incongruous sounds, then followed them down the Metro subway escalator. I was met by blessedly cool air.  There was no mechanical air-conditioning, just the way the station was built. 

The Metro had only been in operation a few years. It still looked brand new. It was immaculately clean.  The state of the art trains pulled in quietly with only a whoosh of air to announce their arrival.  The station platforms with their stone benches were evocative of a medieval cloister.  The garishly bright fluorescent lights in other city subway systems were not there. The platforms were dimly lit by small spotlights set in the ceiling.
                    
There, on a platform overlooking the train tracks, I found the source of the sounds.  Five musicians, not the usual run of street musicians but accomplished ones, classically trained.  They were improvising on Malagueña, adapted for violin and guitar.  

Puzzlement: I didn't see a tip jar or open violin case awaiting dollar bills and pocket change. Then: Of course; they're here for the acoustics

At that moment there was a hubbub as two college-age girls charged past, tearing down the next set of escalator stairs to the platform as a train glided into view.  Both girls were attractive but one riveted the eyes.  Tall, deeply tanned, wearing a sparkling clean white T-shirt, well-pressed khaki Bermuda shorts and the most impossibly silly hat for someone of her age and dress. 

It was a large-brimmed black lacquered straw affair, of the kind Audrey Hepburn wore in Breakfast at Tiffany's, the kind a chic dowager might wear to a formal garden party or summer funeral. Probably sequestered from her mother's hat shelf. 

The hat was in great peril of blowing away in the wind tunnel made by the arriving train and the girl's mad dash down the escalator but the wearer refused to carry it.  She held that silly hat on her head during the entire sprint as she and her friend whooped with laughter and tumbled into the waiting train car. 

I turned back to the musicians, who smiled and nodded at my unspoken question. They too had seen the vision of eternal youth.  And they played on, the notes from their instruments soaring and echoing against the softly curved gray cement walls and rust-red Spanish floor tiles of a grotto-like subway station.

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Wednesday, March 26

After all that Sturm und Drang

After the Wall Street Journal and Daily Beast and characters such as Joshua Foust and John R. Schindler worked up fantastic explanations involving Edward Snowden and kept analysts such as The Wire's Philip Bump busy trying to wrest order from the chaos they set off -- after all that:

TIME magazine, March 24:
Earlier this month, as Russia began its takeover of the region of Crimea, U.S. spy agencies reportedly found a worrying silence in the spot where they were listening most attentively — the digital space around Russian President Vladimir Putin and his military brass. As the Wall Street Journal reported on Monday, U.S. intelligence services could not intercept any communications on the start of the Crimean invasion. One U.S. official called it a piece of “classic maskirovka,” the Russian spy term for masking sensitive data.

But at least part of the radio silence may have a simpler explanation: Putin, by his own admission, does not have a cell phone for the Americans to tap.
Or smart phone. According to the report he's just not a big user of "technologies," period.  TIME calls this technophobia.  Somewhat like Obama saying Putin looks like a bored schoolboy at the back of the class. Putin's taken Obama to school so many times one would think Obama'd be a foreign relations expert by now.

But I'm sure John Schindler would say that Putin's technophobia is not the sole reason the NSA was blind about Russia's moves in Ukraine. The other reason being that they had help from Ed Snowden in flummoxing NSA's All Seeing Eye although Schindler allows it can never be proved. 

Reportedly that is what is teaching a class at the U.S. Naval War College. 

But I wish I could be like Schindler. I wish I could say that all the Snowden Russian Spy stories are emanating from a single desk in the British foreign office although I know it can never proved. 

I also wish I could tell you that House Intelligence Committee Chair Mike Rogers is a shape-shifting lizard from another planet.  I know this for a fact because only beings from that planet would find nothing strange about saying your privacy can't be violated if you don't know it's being violated. 

That is what has been duly elected to the U.S. House of Representatives.

Actually Obama has tried to send Rogers back but their envoy informed him that would be casus belli.

In more news from the insane asylum Bump's piece is delightfully titled, Are Intelligence Officials Justified in Blaming Snowden for Not Predicting Crimea?

Another illustration of why AI still has a long way to go.

But it's all good so I can't think of a better ending for this post than to quote from a Mother Jones article in 2012 about Putin flying a hang glider to lead some young endangered Mongolian cranes to their migratory route: 
During a televised phone-in session last year, when he was prime minister, a viewer asked why Putin looked more comfortable with tigers and leopards than his own ministers.

"The more I know people, the more I like dogs," Putin replied, paraphrasing the Greek philosopher Diogenes. "I simply like animals."
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Tuesday, March 25

Are YOU a Snowden supporter? Then YOU are BETRAYING your COUNTRY by helping Putin.

At any other time this nonsense wouldn't get out the gate. But fear and uncertainty in official Washington and London about the revelations in Glenn Greenwald's forthcoming book No Place to Hide: Edward Snowden, the NSA and the US Surveillance State (release date April 29), is emboldening the kind of people who like to whip up a lynch mob.
  
What started out as a straightforward insinuation that Ed Snowden is a Russian spy has in recent days been worked into a fantastic embroidery on the Ukraine-Russia situation that targets Snowden's supporters as much as Snowden.

One of the embroiderers is House Intelligence Committee Chair Mike Rogers. Yet topping even his insinuations, which he voiced most recently on Meet the Press this Sunday, are ones fielded by John R. Schindler and Joshua Foust. These two Americans, with connections in the U.S. intelligence community, were among the earliest critics of Snowden to publicly accuse him of being involved with Russia's intelligence apparatus.
    
Now, however, Snowden is not simply involved, he's the mastermind behind Washington's failure to anticipate Russia's actions in Crimea.  At any other time the insinuation would be laughable, but there's nothing funny about the lynch mob mentality.  Guilt is determined according to a logic that can't be challenged because it's a logic that can only be perceived by special sight. Truth is no defense against that logic.  Facts are of no consequence. Reason is bound and gagged and dragged to the nearest tree.
 
So it would be useless to point out to Foust and Schindler that according to their logic the Boston Marathon Bombers and al Qaeda gang that brought down the World Trade Center had a miraculous ability to evade the National Security Agency's All Seeing Eye.

It would also be useless to mention that even Snowden critic Geoffrey R. Stone, after he served on the President's independent panel to investigate NSA, reported that there was no evidence the NSA had ever stopped as much as one terrorist plot. 
 
Nonetheless, the special sight possessed by Foust and Schindler tells them that Russia's government must have had help from Ed Snowden -- or gotten hold of his NSA files -- because it eluded the All Seeing Eye in its moves in Crimea. 

SINCE WHEN has the government of the United States of America NOT been caught flat-footed by events in parts of the world it understands not at all?  Reference Benghazi and the overthrow of the Muslim Brotherhood in Egypt for two recent examples of how well the All Seeing Eye works. There was General al-Sisi snapping at the Washington Post: You Americans betrayed us. If Sisi only knew: Washington was still trying to fathom what was happening after the putsch was over and done with.

Gee, maybe Egypt's generals got help from Snowden in surprising Washington. 

All right, Pundita, you've made your point; give it a rest.  I can only hope that the release of Greenwald's book will tamp down the worst of the situation so everyone living in fear of what's in the book can finally see where the ax has fallen.  Then maybe the lynch mob types will crawl back under their rock.

Here's a March 24 article at the Business Insider that details the special sight of Schindler and Foust:   Russia's New Ability To Evade NSA Surveillance Is Either A Crazy Coincidence Or Something Much Worse.

The link posted above about Mike Rogers is to a March 24 post by Kevin Gosztola at Firedoglake. He patiently dismantles Rogers' latest insinuations.

The insinuations are remarkably similar to those penned by a British citizen named Edward Lucas, who spent many years as a foreign 'correspondent' in the Soviet Union, and who's involved with a European policy think tank here in Washington.  See The Silliest Snowden Theory Yet at Mother Jones (February 28) for a sendup of Lucas' effort to connect nonexistent dots.

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Monday, March 24

A very brief reply to Lawfare's very brief reply to Glenn Greenwald

"Greenwald may regard as jingoistic the distinction the [U.S.] law makes between [information] collection against U.S. persons and collection overseas, but it is the law [to allow the latter]. And I would challenge him to find a single example of a country that applies the same privacy rules to espionage in foreign adversary countries as it does to its own people -- other than countries whose privacy rules are not to have any."
-- Benjamin Wittes; Lawfare; March 23

1.  Since when was every country other than 4 British Commonwealth ones a "foreign adversary" of the United States of America?

2. Since when did U.S. law find no difference between intelligence gathering and clandestine warfare?
 
(The NSA documents published by the New York Times and Der Spiegel about U.S. hacking operations against Huawei mention that if the U.S. President orders, NSA can launch offensive operations against the company; that is, cyberwar.)

Back to the law books, Mr Wittes. 

See Wittes' March 23 post A Very Brief Reply to Glenn Greenwald for more details on Greenwald's argument and Wittes' reply.  By the way Lawfare is an American blog about national security law and policy but Benjamin Wittes is not simply a blogger.  He is "editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books and a member of the Hoover Institution's Task Force on National Security and Law."

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Sunday, March 23

Is it practical for governments to attempt to ban cyberwarfare?

Lawfare's Matthew Waxman's recent discussion focused on the need for governments to work out international norms for their deployment of weaponized cyber tactics. (See previous Pundita post.)  But would it be practical or even possible to instead work directly for an international ban on cyberwarfare?
 
Yes, said the Glittering Eye's Dave Schuler. Written in the wake of published revelations about the unintended consequences of the Stuxnet virus, Dave's arguments still hold up and are the most cogent I've read on the topic.  His arguments have taken on even greater urgency since the "Snowden files" started to be released to the public.
 
Here I'm going to skip quotes about the Stuxnet virus that Dave used to preface his discussion and go straight to his discussion:
Why Cyberwarfare Should Be Banned
by Dave Schuler
November 10, 2012
The Glittering Eye

We should get behind an international accord to ban cyberwarfare that has some teeth behind it and insist that we, our allies, clients, and trading partners sign it and abide by it. The reason is simple. Weapons like the Stuxnet virus are more like chemical or bacteriological weapons than they are like guns, warplanes, or aircraft carriers. Once they’ve been released, the deployer has little control over where they go and what they infect. We just have too much to lose.

But there’s another reason, too. States have enormous resources. Over the period of the last 30 years malware in various forms has gone from being an occasional nuisance to a deadly threat that costs the world economy hundreds of billions of dollars in prevention tools, maintenance and administration, downtime, bandwidth costs, storage costs, data loss, etc. That’s what’s been accomplished by individuals working, basically, in their basements.

When a computer virus is released into “the wild”, it becomes visible to anyone who comes across it who has the knowledge and ability to investigate it. It can be reverse engineered, replicated, and even enhanced. Putting the enormous resources of states behind the development of such things, releasing them into the wild, and making the results of all of that R&D available to the hacker world is beyond irresponsible. It’s dangerous. And, as I said before, we just have too much to lose.
To a remark in the GE comment section that a ban wouldn't be enforceable, Dave replied:
So are bans on chemical and bacteriological weapons. We have them anyway. Similar to other law, such bans have a number of purposes. They serve as a warning. They may deter someone from deploying such weapons. They are a statement of intent.

And, if as I believe we shouldn’t be using them anyway, we might as well get an international agreement banning their use into place.
See the GE comment section for more discussion of Dave's arguments and his replies.

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Friday, March 21

Incoming NSA Director Understands Cyberwar Deterrence Value of Ed Snowden's Revelations

"The whole point of the doomsday machine is lost if you keep it a secret."
-- Dr Strangelove to the Russian Ambassador

"Admiral Rogers also suggests in his written answers that the Snowden disclosures might inadvertently contribute to American deterrence of cyber-attacks by revealing U.S. defensive and retaliatory capabilities in this area.  In fact, his brief allusion to international norms comes in his answer to a question about how to strengthen deterrence."
-- Matthew Waxman

My profound thanks to Matthew Waxman at Lawfare for reporting on this development and for his analysis. Given the critical nature of the discussion I'm reposting the entire analysis here, but without the links.  See the post at the Lawfare site for links to Waxman's earlier discussions on the downsides of keeping cyberwar capabilities secret, links to Admiral Rogers' written answers, Harold Koh's discussion, etc.:
 
Snowden Disclosures and Norms of Cyber-AttacksBy Matthew Waxman
Thursday, March 20, 2014 at 11:00 AM

Secrecy -- of the sort that typically shrouds cyber-defense and cyber-attack capabilities and doctrine -- complicates the development of international norms.  Secrecy makes it difficult to engage in sustained diplomacy about rules.  Officials can talk about them at high levels of generality, but can’t get very specific, and it’s therefore hard to reach agreement.  Secrecy makes it difficult to verify commitments or demonstrate compliance.  Perceived distance between mere words and true actions may be large amid high degrees of secrecy.

It’s for these reasons that I’ve argued that intense secrecy around states’ cyber-capabilities will slow the development and clarification of international law governing cyber-attacks or responses to them.  I’ve also argued that because the United States “occupies a position of advantage on offensive cyber capabilities, it should seize the opportunity to lay out a set of rules for itself and others.”
 
Notwithstanding some important statements on this topic, such as then-State Department Legal Adviser Harold Koh’s remarks on applicability of self-defense rules and law of armed conflict to cyber-attacks, to do this the United States would need to resist its usual tendency to over-value secrecy at the expense of shaping international norms.

I was therefore struck by one of the written answers provided by NSA Director-nominee Admiral Michael Rogers to the Senate Armed Services Committee:
"I believe the recent disclosures of a large portion of our intelligence and military operational history may provide us with opportunity to engage both the American public and our international partners in discussion of the balance of offense and defense, the nature of cyber warfare, norms of accepted and unacceptable behavior in cyberspace, and so forth."
This seems to refer to the Snowden disclosures, but it’s not clear what he has in mind with regard to norms.
The U.S. government talks a lot about norms as part of its overall cyber strategy, but with few exceptions (like the Koh remarks) it hasn’t been forthcoming about what norms it wants to advance.  Maybe this is because it prefers to work this very quietly through private diplomacy, but I suspect that it’s at least partly because the U.S. government hasn’t yet decided what rules it wants with regard to; for example, penetrating other states’ networks or distinguishing legitimate from illegitimate targets.

The Snowden disclosures could prompt more open and specific international legal discussion about offensive and defensive cyber practices, and it could prompt the U.S. government to clarify its legal positions or decide which ones are worth defending vigorously.  This has occurred to some extent with respect to revealed surveillance of individuals and the public (at home and abroad), but we don’t yet know much about what might yet be revealed about cyber-attacks.

It’s especially interesting that Admiral Rogers talks about Snowden revelations and their impact on norm development in positive, optimistic terms, because the general mood so far has been that the disclosures are damaging to American efforts on cyber norms. 

For example, disclosures of major U.S. internet surveillance programs, including penetration of the internet backbone, undermines the credibility of American commitment to protecting an open, global web.  Disclosures of U.S. government spying on foreign companies like Brazil’s Petrobras has clouded American efforts to distinguish “legitimate” espionage from illegitimate commercial espionage.  But Rogers talks about all this as an “opportunity” to advance the U.S. agenda on norms.  He may be right, but it will require a concerted, proactive campaign rather than scrambling to respond to specific leaks.

As a related aside, secrecy of capabilities complicates deterrence (see Dr. Strangelove).  Admiral Rogers also suggests in his written answers that the Snowden disclosures might inadvertently contribute to American deterrence of cyber-attacks by revealing U.S. defensive and retaliatory capabilities in this area.  In fact, his brief allusion to international norms comes in his answer to a question about how to strengthen deterrence.
[END]
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Wednesday, March 19

The Two Forces

Two major formative forces in the United States:  the earliest one, which arose from the nomadic 'native' American hunting tribes, then Puritan immigrants and pioneer - homesteaders.  The other force arose from waves of immigrants from agrarian European societies ruled for centuries by monarchs and marked by peasant uprisings.

(It can argued there's a third force in the American southwest, a confluence of Spanish culture and Mayan/Incan ones, but these are surprisingly similar in that they too were in the agrarian - monarchist - peasant model.)
 
The earliest force created the Do It Yourself mindset.  The later one created the Looking for Mr Good King mindset.

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Tuesday, March 18

Ripped from the pages of the Ed Snowden Dossier:  The Nazification of American Liberalism

Somewhere in a Remote, Wild Place

Why there? Because these stories always happen in such places. And there must have been a trusty Native bearer -- why, because there's always a trusty Native bearer in the story; in this case probably a graduate student or untenured professor who after the requisite number of prostrations said something like, 'Effendi, not a good idea to bungee jump from this height without a bungee cord.  Especially not a good idea when heathen Trotskyists challenge you to jump into their lands.'

Any such advice would have been wise to follow. But to call him a Brown Shirt -- he of all people!  Did he not have Liberal credentials piled high over a span of decades?  Did not readers at Huffington Post, the New York Times and Washington Post seek his guidance on the way a Liberal should think about legal matters?  And had he not already distinguished himself as a critic of the NSA? 

He'd made a simple, straightforward point: you couldn't let private citizens play vigilante and turn the public forum into a kangaroo court to put a government agency on trial. The point held even if any of the NSA surveillance programs revealed by Edward Snowden turned out to be illegal. So to make a mountain of this molehill -- the American Trotskyists were never tightly wrapped to begin with. The calendar was always 1932.  A Stalinist lurked under every bed in America and a Nazi in every closet, ready to spring on the clueless American voter.

And it wasn't as if he'd be landing in the jungles of Borneo. What were they going to do?  Put on war paint and shoot copies of Das Kapital at him?  Besides, he was from Chicago and in Chicago there are rules.  First rule: Never back down from a fight.

And so on June 19, 2013, Geoffrey R. Stone, constitutional law scholar, Dean Emeritus and Edward H. Levi Distinguished Service Professor at the University of Chicago Law School, broke into a run, yelled "Geronimo!" and jumped into the land of the heathen Trotskyists. 
 
Earlier

On June 14, 2013, from a bunker at the World Socialist Web Site, American Trotskyists David North and Eric London launched a fusillade at the American Liberal establishment. They took special aim at arguments that Liberal commentators on legal matters, attorney Jeffrey Toobin and law professor Geoffrey R. Stone, had put forward in the attempt to discredit Edward Snowden's rationale for making classified documents public. 

Toobin, however, was a mere pundit who held forth at CNN and The New Yorker.  North and London saved their heavy ordnance for Professor Stone and the narrative he constructed on June 10 -- the day after Snowden had been introduced to the public -- to help the politically liberal Huffington Post's readers understand Snowden's actions.  He expanded on the narrative during a June 12 debate at Democracy Now!

The gist was that Snowden, in acting on his own against the legally elected and appointed government of the United States, was nothing more than a criminal who'd defied the will of the American people. 

North and London's response was almost completely free of Trotskyist cant if you don't count the last part about the rich and privileged; they were addressing the widest possible audience.

In plain language they charged that Stone's narrative conflated the principles upholding the American republic with its governing apparatus.
 
For good measure they fired off quotes from a history of the Nazi regime to get across that the narrative was evocative of the regime's concept of justice and rationale for punishing German civil servants whose actions contradicted the Führer's wishes. 

And they cited earlier statements by Stone to back their claim that in condemning Snowden's actions he'd reversed his position:
Just a decade ago, in 2004, Professor Stone wrote a book entitled Perilous Times: Free Speech in War Time from the Sedition Act of 1798 to the War on Terror. This work provided a historical account of wartime attacks on democratic rights by American governments. Discussing his book in a television interview, Stone reviewed the impact of the 1798 Sedition Act and warned:

“One of the important lessons is that if American citizens want to have the freedoms that are guaranteed to them, they cannot sit back passively and allow elected officials and judges to protect their rights for them. It’s very important for the American people to recognize that if they want their freedoms -- want their liberties -- they have to take responsibility for preserving them in these times.” The interview can be viewed here.
Professor Stone is singing a very different tune today. Precisely because Snowden did not “sit back passively” but instead took responsibility for the defense of democratic rights, Stone declares that he “is most certainly a criminal who deserves serious punishment.”

The essence of Stone’s argument is that Snowden, having accepted government employment, forfeited all right, let alone responsibility, to expose illegal actions by the government. The argument is based on authoritarian premises that are not fundamentally different from those that prevailed in Nazi Germany.

As German historian Ingo Müller wrote in Hitler's Justice: The Courts of the Third Reich, the Nazi Supreme Court “defined the ‘legal nature’ of the civil service as ‘loyalty, obedience, and conscientious performance of duty’ and had referred to civil servants as ‘the political troops of the Führer in the area of administration.’” [p. 83]

Stone advances a concept of employee discipline that closely resembles the Nazi ethos. In a passage that exposes Stone’s repudiation of essential democratic principles, he writes:

“But what if the employee decides, in his own wisdom, that some classified information doesn't need to be classified or that it would be good for the public to know the classified information? Should the employee be allowed to make that judgment? Merely to state the question is to answer it. There is no reason on earth why an individual government employee should have the authority, on his own say so, to override the judgment of the elected representatives of the American people and to decide for the nation that classified information should be disclosed to friends and enemies alike. Such an act is a complete usurpation of the rule of law."

This is an astonishing declaration! “No reason on earth?" In other words, an employee of the state must keep his mouth shut and refrain from exposing criminal activity no matter how injurious it may be to the rights of the American people. “No reason on earth!"  What if a civil servant uncovers a secret memorandum authorizing the assassination of a citizen? Or plans for the mass incarceration of political dissidents?
[...]
Drawing his tirade to a conclusion, Stone declaims that Ed Snowden had no right to decide that he knew “better than anyone else in government how best to serve the national interest.”

Once again, Stone advances an argument that conforms entirely with the legal principles of the Third Reich, which insisted on the subordination of the individual to the Führer.

Müller recounts the official denunciation by the Nazi court of a civil servant who counterposed his individual sentiments to the will of the state. In words that are in spirit eerily similar to those of Stone, the fascist authorities denounced the hapless civil servant for holding “notions about his freedom, according to the crassest form of the liberalist view … Freedom to him means the authority to refuse to carry out all duties not explicitly prescribed by the law, as he himself sees fit.” [p. 84]
[...]
Eric London sent Stone a copy of their response, which WSWS had titled in understated manner, Liberal advocates of a police state turn savagely against Edward Snowden, with an invitation to respond at WSWS.  

Stone had to know that David North wasn't any old Trotskyist and WSWS wasn't any old socialist publication.  Decades ago in the United States the Democratic Party and Liberal media had politely herded the Trotskyists onto a reservation where they could yammer about the true socialist doctrine without embarrassing the Party. While the reservation had no set geographic location its borders were a total blackout in the American mainstream media.
 
But since the financial crash younger Liberals had been traipsing to the reservation, seeking counsel and solace from Trotskyist chiefs.  Even Glenn Greenwald started showing up at the sweat lodge.

North was a chief.  A hardened veteran of the long, world-spanning cold war between Stalinists and Trotskyists, he was the author of a number of books on socialism, and according to Wikipedia, "the principal political and theoretical leader of the International Committee of the Fourth International during the organization's split with the Workers Revolutionary Party."  He was also the chairman of the International Editorial Board of the World Socialist Web Site, the publication arm of the ICFI.  The internet era had come to the reservation. WSWS was the most widely read socialist website in the world. 
         
For all these reasons the North-London writing hadn't languished in the backwaters of Google's search engine. It had been on the front page of Google News for many hours.  

In short, Stone knew he'd been called out before a large audience. Again, caution would have been the better part of wisdom under the circumstance.
      
Back in the Remote, Wild Land

Geoffrey Stone refused to modify his position.  After a dismissive greeting to Eric London ("Thanks for sharing.") and an admonishment that grownups must not see things in black and white ("What you seem not to understand is that situations are different and not everything is or should be on one side of the line or the other."), he reiterated his June 10 lecture to Huffpo readers.  As to the accusation that he'd reversed himself, which were North and London gonna believe, him or their lying ears?:
Everything I’ve said about Snowden is perfectly consistent with everything I’ve ever said on this subject.

Although I think we need a healthy distrust of our public officials, I also oppose the arrogance of a single, unelected individual who takes it upon himself, with no lawful authority or justification, to disclose properly classified information to persons unauthorized to receive it just because HE thinks the information shouldn’t be classified.

The plain and simple fact is that Snowden betrayed the rule of law and the trust of the American people when he decided, without any legal authority, to disregard the judgments of the executive branch, the Congress and the judiciary in a way that put the security of the nation at risk. Even if what he did has beneficial consequences, he had no legal or moral right to do it. He is a criminal
Professor Stone's jump landed him in one piece. He looked around.  North and London were nowhere in sight.  Probably hiding in a cave on the rez.  He waved up to the Native bearer, who suddenly covered his eyes.

Then he noticed an odd trembling in the ground under his feet and a strange sound: thoom. thoom.  The sound was coming from the direction of what looked like an opening to a large cave. It was a sound not unlike the sound in Jurassic Park after the green Jell-O starts quivering.
 
The sound got closer. THOOM. And closer. THOOM.

Happily for Professor Stone what emerged from the cave was not a Tyrannosaurus Rex but it was the legal correspondent for the World Socialist Web Site.

Meet Tom Carter

Published by WSWS on July 8 under the title, A Letter from Geoffrey R. Stone, Liberal Advocate of a Police State, Tom Carter's response was a five-part analysis of Stone's June 19 letter.  As with North and Carter he was sparing in his use of the Trotskyist cudgel.  He launched by addressing Stone's concept of the rule of law:
[...]
Despite being written by an American law professor, Professor Stone’s letter consists of conceptions that are utterly alien to the democratic legal tradition of the United States.

Reiterating his previous statements, Professor Stone announces that it is contrary to the “rule of law” for a “single, unelected individual” to take it upon himself “to disclose properly classified information to persons unauthorized to receive it.” In the context of Snowden's revelations, this formulation inverts the “rule of law,” turning it upside down and transforming it into its opposite.

For Professor Stone, the “rule of law” becomes the duty of unquestioning obedience to superiors.

This is not what the “rule of law” means. As Thomas Paine wrote in his revolutionary pamphlet Common Sense (1776), “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”

The “rule of law” means that the acts of every person, up to and including the highest public official, are beneath the law. The Constitution provides that even the “President, Vice President, and all civil officers of the United States” may be impeached for violating the law. This is the essence of the phrase, “a government of laws not of men.”

In other words, the “rule of law” means that public officials who engage in illegal conduct run the risk of having their behavior exposed, their orders disregarded, and their official powers terminated.

If a citizen is ordered by a public official to participate in illegal conduct, then the “rule of law” does not mean that citizen should obey the order without question. On the contrary, the “rule of law” means that going along with the illegal conduct of one’s superiors, even when ordered to do so, may itself be illegal.

In American history, this principle found perhaps its fullest expression in the arguments of Supreme Court Justice Robert H. Jackson at the Nuremberg trials of Nazi war criminals, which took place from November 1945 to October 1946.

The Nazi defendants famously asserted that they were merely “following orders,” and that they did not have any legal or moral right to question the orders they were given or to refuse to carry them out. Rejecting these arguments with contempt, Justice Jackson declared that modern civilization “cannot tolerate so vast an area of legal irresponsibility.”

Nuremberg Principle IV reads, “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility. .. provided a moral choice was in fact possible to him.”

Professor Stone’s phrases such as “no lawful authority” and “properly classified information” simply beg the question. Can a criminal conspiracy to violate the fundamental rights of hundreds of millions of innocent people be “properly” classified, or “lawfully” kept secret?

Professor Stone’s letter does not actually address the substance of Snowden’s revelations. Nor could it. Edward Snowden brought to light what is perhaps the most spectacular breakdown of the “rule of law” in American history. The pervasive illegal spying on Americans revealed by Snowden makes the criminal conduct of figures such as Richard Nixon seem petty and trivial by comparison.
[...]
The words Justice Jackson used to describe the hypocritical posturing of the Nuremberg defendants applies in full force to Snowden’s persecutors. These men, Jackson declared, “are surprised that there is any such thing as law. These defendants did not rely on any law at all. Their program ignored and defied all law. ... International Law, natural law, German law, any law at all, was to these men simply a propaganda device to be invoked when it helped and to be ignored when it would condemn what they wanted to do.”
Then, drawing on a variety of American historical incidents, Tom Carter continued to demonstrate that Snowden not only had a right but also a duty as an American to reveal secret government actions that were given a veneer of legality only by abrogating principles on which the U.S. republic stood.

Last Whistlestop

By the time he wound up the civics lesson nothing was left of the Liberal position that Stone represented except rubble.  The only comparable analogy in American history is the televised dynamiting on April 17, 1972 at 3:32 PM of the second building in the Pruitt-Ingo public housing complex. As the completely unlivable structure collapsed into rubble it brought down with it the modernist era in architecture and social engineering

But this isn't a discussion about bad urban planning. David North and Eric London had set the charges and Tom Carter had pushed the plunger on an era in the United States when political Liberalism was considered the bulwark against tyranny. 

Trouble is, they'd managed the demolition only when the train of U.S. government was hurtling toward a depot where the calendar on the wall read 1932.

.

Saturday, March 15

How Ed Snowden and his, er, agents are revitalizing American institutions on the front line of guarding the U.S. republic against becoming a tyranny

"What was Edward Snowden supposed to do, call up the Senate Intelligence Committee and say, 'Hi, I'm a 29-year-old contractor who works in Hawaii, and I'm calling to report to you about the programs that you have approved in secret?' "

It was the NSA Inspector General who referred to them last month as "agents."  These being the fast-growing number of journalists, newspaper editors, attorneys, legislators and IT professionals who've joined Ed Snowden in working to halt a police state in its tracks.
    
The following excerpts are from the must-read interview of Ed Snowden's ACLU legal advisor, Ben Wizner, Director of the ACLU Speech, Privacy and Technology Project. The interview was conducted by Michael Winship, Senior Writer at Moyers & Company.  I am not a Bill Moyers fan but my hat's off to his organization for the interview and the great questions Winship posed.  However, I've taken the passages from Truth-Out's posting of the interview, which is where I learned about it.
  
The interview covers several topics; here I'm highlighting only Wizner's summary of how Snowden's mission is already revitalizing journalism, the justice system, and the U.S. legislative branch of government and even impacting the executive branch. Emphasis throughout is mine.

I was greatly struck by Wizner's repeated phrase, "Snowden was watching ... " While Snowden's said his intention wasn't to change government -- that this was for the American people to do -- it seems that in the years running up to the leaks he initiated, he was trying to isolate everything that specifically made up the mechanics of the burgeoning police state and asking himself how to dismantle the wiring diagram, so to speak.

Again, the following are only excerpts from what I consider a very important revelatory discussion.

Our Chat With Edward Snowden's Legal Counsel
Wednesday, 12 March 2014 10:44
By Michael Winship, Moyers & Company

[...]
[JUDICIAL BRANCH]

Winship: How would you characterize what [Snowden] has revealed?

Wizner: Well, maybe the best way to answer that question is to remember what President Obama said in the first week after the revelations began to appear on front pages. He said Americans shouldn't be too worried about these disclosures because all three branches of government had blessed the programs and activities that were being disclosed.

That was a true statement. That was also exactly the problem. And it's worth looking at what those same three branches of government have done since Edward Snowden's disclosures, since the public was brought into this conversation.

So let's look at the courts. Now, it's true that a court called the Foreign Intelligence Surveillance Court had approved, in secret, some of these programs. It's a court that hears only from the government, does not have the benefit of adversarial briefing, didn't get to hear what our objections would have been. It's also a court that was set up to give warrants, not to write opinions on whether surveillance programs in general were lawful.

And when we tried to bring challenges to these programs in open federal courts, we got as far as the Supreme Court, but every court turned us away without even considering the legality of the programs. The government said, "These plaintiffs have no right to be in court. They can't show that they were subjected to these surveillance programs, and therefore they don't have standing. And they're not allowed to use the discovery process to learn that, because that would be a state secret."

The result being that no one has the right to go into federal court to challenge the legality of these programs.
Edward Snowden was watching this. In our very first conversation, one of his first questions to me was, "Have these documents that have been published so far given you standing to go back in court?"

To him, the idea that a court would not answer the question, "Is this program legal? Is it constitutional?" but instead would contort itself in order to not answer that question seemed like a failure of oversight, and he was right.

What's happened since his disclosures? We have now taken some of these documents, gone back into federal courts, where our standing is really much harder to question. Two federal judges have now considered, for example, the constitutionality of the government's collection of all telephone metadata. They've come so far to different conclusions on the legal question, but both said that the plaintiffs have standing to be in court. So one thing that he's done is he's reinvigorated judicial oversight.

[LEGISLATIVE BRANCH]

Now, what about Congress? To me, the signal moment in Congress is [Senator] Ron Wyden asking [Director of National Intelligence] James Clapper, "Is there any kind of information that you collect on millions or hundreds of millions of Americans?" And Clapper says, "No, sir, not wittingly."

We like to call this Clapper lying to Congress, and it's certainly that. But it would be much more accurate to say that Clapper was lying to the American people, because Senator Wyden knew that the answer was false. [Wyden] didn't, he felt like he couldn't, correct the answer. No one else on the committee corrected the answer. Clapper didn't correct the answer, no one on his staff, no one in the Administration.

So what we had was a lie being told to Congress and no one in any branch coming forward to say that a lie had been committed. And Snowden was watching that, too.

And what's happened in Congress since the public disclosures? The issue has come out of the intelligence communities and into the full Congress. There is historic bipartisan legislation that would end bulk collection of American's data, that would create an adversarial process in the Foreign Intelligence Surveillance Court.

This is the kind of legislation that would've been absolutely unthinkable before Snowden.

The direction has been one-way since the late 1970s. The Deep State has more authority, not less. The opposite is going to happen now. Now, whether it's something that seems more cosmetic or something that really is historic, well, that's really up to the people to decide. We will see. But there's been an earthquake in the congressional oversight of these programs, and that's because of Snowden.

[EXECUTIVE BRANCH]

And even the executive branch, which said, "Nothing to see here" — you know, the president appointed his own review board, that included former very high ranking intelligence community officials and other close friends of his. I think it's fair to say that the civil society organizations expected a whitewash. But that's not what we got.

The conclusions were — more politely stated — that the NSA had essentially gotten out of control, that it allowed its technological capabilities to drive its practices, rather than having its practices constrained by laws and values, and even wisdom. And there were dozens and dozens of recommendations that went not only to giving Americans greater protections, but also people abroad. And you heard the president in January, in his big speech about the NSA, say — first time for any president, I think — that we need to be concerned about the privacy rights of people outside the US who are not protected by the Constitution.

So all three branches of government are now doing the oversight that the Constitution wants them to do, that they were not doing before Edward Snowden. To me, that is his most significant contribution.

[JOURNALISM]

Winship: And you feel that the route he took, via journalists, was the one and only way he could go?

Wizner: I guess at times I wonder what people mean when they say he should have gone through a traditional route rather than going through journalists. Sometimes, the kinds of people who we call [officially sanctioned] whistleblowers ... are people who uncover unquestionably illegal conduct that's been hidden away and they just need to bring it to the attention of an overseer, call up an inspector general, call up a member of Congress and say, "Look what I found," and then the system will take care of itself.

But sometimes, someone comes upon a system of global dragnet surveillance that the oversight system deems perfectly legal. This is not something that Congress was unaware of. This is not something that courts were unaware of, at least the courts that were set up to review these practices.

What was Edward Snowden supposed to do, call up the Senate Intelligence Committee and say, "Hi, I'm a 29-year-old contractor who works in Hawaii, and I'm calling to report to you about the programs that you have approved in secret?"

This was a very, very different kind of situation. There was no one to report to who had not been part of the system of approval. And even those who were in the Congress who shared Snowden's view about the propriety and maybe legality of this were unwilling to talk.

Senator Wyden was on the floor of the Senate with his hair on fire, saying, "If the American people knew what I knew, they would be angry and they would be shocked."

Well, that turned out to be true, but we didn't learn it from Senator Wyden. We learned it from Edward Snowden.

And one more point about what he did. You know, the number of documents that Edward Snowden has made available to the public is zero. What he did is give information to journalists, with the instruction that they and their editors, in consultation, where necessary, with government officials, decide what was in the public interest to publish, and to withhold information that would be harmful to publish.

He wanted to create a protocol that would correct for his own biases. He was someone who had spent the last almost ten years in the intelligence community. He didn't think that his own judgments — and he has very strong judgments about what should or should not be public — were adequate to this moment and wanted to make sure that the institutions that had the experience in doing this. And these are our newspapers, who have long experience competing with the government over access and control of secret information, that being the way that the information got published.

And many people have not noticed this.

In an interview that Snowden gave with TIME magazine when he was runner-up to the Pope for Person of the Year, he said he hasn't always agreed with the public interest determinations of the journalists, but that that's precisely why he needed to do it this way.

He didn't want and didn't think that he should have the responsibility to decide which of these documents should be public. He wanted to appeal to the traditions, the institutions, the expertise of the media in helping to make those important judgments.

That's what we want whistleblowers to do. We don't want them to unilaterally substitute their judgment for everybody else's. We want them to go through these institutions that funnel and that channel that [information] and have longer experience in making these kinds of decisions.

Winship: And yet, Keith Alexander, the outgoing head of the NSA, made a speech at Georgetown a few days ago in which he said that journalists don't have the proper ability to analyze these materials, and he said that Snowden's leaks had caused "grave, significant and irreversible damage to our nation."

Wizner: Those words are the classic weasel words of the Deep State. That sentence could have been lifted from the United States government's brief to the Supreme Court in the Pentagon Papers case, where they said if the Court allowed The New York Times and Washington Post and others to publish the papers they would be responsible for "grave and irreversible damage to the national security." It's exactly the same kind of language.

You know, I wonder if General Alexander really believes that our democracy would be stronger and better off if journalists deferred in every case to the expertise and interests of the executive branch in deciding what to publish. I mean if you look just back at the last few years and consider what the public would not have known on that model [gives examples from the Bush 2 administration] ...

All of this stuff was classified. Not just classified; it was classified at the highest level. These were the secrets that the government said were most critical to keep. But what kind of democracy would we be if the public had never learned of this information?

I'm also not saying that journalists alone should decide what the public sees. I mean the government's voice in this debate is an important one. It's a back and forth. It's always been a back and forth.

I don't believe a single story based on Snowden documents has yet been published without consultation with the government, without giving the government an opportunity to strenuously object and to point out things that might cause harm in their view. And that's why I don't think there's been any credible evidence at all of real harm to national security from these leaks.
[...]
END EXCERPTS FROM INTERVIEW

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