A section devoted to in-depth examination of important public policy issues arising from political, ethical, security, and legal affairs.
Making the Best of a Bad Law
© By Margaret Somerville
I believe that physician-assisted suicide and euthanasia – so-called “physician-assisted dying/death” (PAD) – are morally wrong, and that even if they were not, their risks and harms to individuals, institutions (especially law and medicine), and society far outweigh any possible benefits. That said, if, as now seems inevitable, PAD is to be legalized in Canada in certain circumstances (and on certain conditions), I agree with the general approach taken in Bill C-14 of legislating PAD as an “exemption” from (that is, an exception to prosecution for) the Criminal Code offences of culpable homicide and assisted suicide. However, for several very important reasons, this exemption must be very limited and strictly controlled.
Physician-assisted dying must be an exception
Treating PAD as an exception will help to ensure that PAD is not normalized or becomes part of the norm for how Canadians die. That requires, first, that PAD can only to be employed in exceptional circumstances. As counsel for the plaintiffs in Carter stated, “Assisted dying should only be allowed in the most serious cases, and not just because somebody wants to.” For the same reason, of preventing PAD becoming part of the norm for how we die, PAD must be rarely used (as both the trial court judge in Carter and the Supreme Court of Canada envisaged) and [then] only as a last resort for those who clearly qualify for it.
If, as has occurred in both the Netherlands and Belgium, PAD were to become part of the norm and, as in those countries, the same 3.5% of total deaths were deaths by euthanasia, Canada would have over 9,000 such deaths each year. Dr Ellen Wiebe, the first doctor to kill a patient in Canada pursuant to judicial authorization, told a webinar of pharmacists that she believed that deaths from euthanasia and assisted suicide in British Columbia would match the Netherlands rate. That would mean around 1,212 deaths annually (about three per day) just in that province.
Recognizing PAD as an exception, as Bill C-14 does, also helps to establish that access to it is not a right but rather, under certain conditions, an immunity from prosecution for a criminal offence, which carries an important anti-suicide public health message. As well, this immunity characterization will assist in protecting the rights of health care professionals who refuse involvement in PAD for reasons of conscience or religion.
The three goals of Bill C-14
While in allowing PAD, Bill C-14 unavoidably damages the value of respect for life and puts vulnerable Canadians at risk, its goals include, as its preamble recognizes, maintaining respect for human life at both individual and societal levels, and the protection of vulnerable people. Achieving those goals demands that we make another goal explicit – ensuring that PAD does not become part of the norm for how we die. Preventing that is a necessary safeguard for both individuals and society. So how can we best achieve these three goals?
These goals are intimately intertwined and connected. Promoting one will promote the others. Likewise, to detract from achieving one will detract from achieving the others. The conditions for qualification for PAD will be critical in determining whether we can achieve these goals; and those conditions must underline that PAD is an exceptional intervention allowed only in very limited circumstances. They should include that PAD is limited to adults who: are competent at the time of death, terminally ill from a physical disease or disability, in unbearable suffering, and give their informed consent to PAD. Ethically and legally valid informed consent requires that the consent be unambiguous and that, in relation to PAD, all persons whose requests for PAD are granted must be offered and have access to fully adequate palliative care.
One condition is essential but not yet in Bill C-14: For both practical and symbolic reasons, a Superior Court judge should be required to review and approve each request for PAD that has been approved prior to its being implemented. (Remote areas can be accommodated via Skype.) Judicial involvement underlines the seriousness of the decision to use PAD; it will assist in doing the least damage to the foundational value of respect for human life in society in general; it will provide better protection both against abuse of PAD and of vulnerable people; and it will help to ensure that PAD is rarely used (and only where all necessary conditions have been complied with).
Superior Court judges should be mandated to certify that all legal requirements for access to PAD (physician-assisted suicide or euthanasia) have been fulfilled. This safeguard requirement has a history of judicial recognition and use in the precise context of authorizing PAD: Chief Justice McLachlan imposed it in her dissent in Rodriguez, as did the trial court judge in Carter during the period of her judgment’s suspension, and, likewise, the five judges of the Supreme Court in granting Parliament a four-month extension to draft legislation in response to the Carter judgment for cases of PAD occurring in that interim period.
There is also a well-established precedent for legislating quasi-judicial or judicial review of physician decision-making in another healthcare context: Provincial mental health legislation often requires such involvement in the involuntary commitment of a person to a psychiatric hospital. Surely inflicting death is at least as momentous a decision, and the potential for abuse of the power to inflict death, especially on vulnerable people, is just as serious a concern, as restricting a person’s liberty through involuntary commitment.
Parliament’s weighty responsibility for the future
I urge you to recognize the full weight and seriousness of the decisions you must make about Bill C-14 and to [act] in a way that does the least damage to the value of respect for life, prevents abuse, maintains the protection of vulnerable people, and prevents PAD becoming the norm for how we die. What you decide about Bill C-14 will be a major component in determining what the shared foundational values of Canadian society will be – not just in the present but also in the long-term future. You face a momentous decision and have an enormous responsibility to decide ethically, prudently, and wisely.
Margaret A. Somerville is Samuel Gale Professor of Law and the Founding Director of the Centre for Medicine, Ethics, and Law at McGill University in Montreal.
Copyright © 2016 by Margaret Somerville.
The foregoing article, which originally took the form of a submission to the Senate of Canada, was first published in MercatorNet on May 5, 2016. It appears in Artsforum Magazine with the permission of its author. Visit MercatorNet at: https://www.mercatornet.com/
Editor’s Note: The unanimous decision of the Supreme Court of Canada in Carter vs. Canada (Attorney General) in February 2015 held that in certain circumstances, Canadians have a right to physician-assisted suicide. The court suspended its ruling for twelve months (later extended by four additional months) to give the federal government time to implement the ruling in law. In June 2016, the Parliament of Canada passed Bill C-14, which, before its passage, was the subject of the preceding submission.
What’s behind the demolition of conscience rights in Canada?
© By Margaret Somerville
I’ve been puzzling about why Canadian “progressive” values advocates, particularly those passionately in favour of the legalization of euthanasia and physician-assisted suicide (a.k.a. “physician-assisted death,” or PAD), are so adamant in trying to force health care professionals and institutions with conscientious or religious objections to these procedures to become complicit in them.
Complicity would occur if objecting individual physicians were forced to provide “effective referrals” or if objecting institutions were forced to allow PAD in their facilities. An “effective referral” is defined by the Ontario College of Physicians and Surgeons as “a referral made in good faith, to a non-objecting, available, and accessible physician or other health-care provider.”
In general, progressive values advocates claim to give priority to rights to individual autonomy, choice, control over what happens to oneself, and tolerance for those who believe differently. Yet [when it comes to] respect for the freedom of conscience and/or religious belief of physicians or institutions who oppose PAD, none of these principles seem to be applied. Why?
The usual reason given by PAD supporters is that patients who fulfill the required conditions have a right to access euthanasia now that it is legal in certain circumstances, and that physicians have a duty to enable that access. In other words, they argue that pursuant to the Carter case, physicians have not only a duty not to prevent patients from accessing PAD but also a duty to facilitate patients’ access to it. The latter would constitute complicity in PAD by objecting physicians and, like personally carrying out PAD, be objectionable on conscience grounds.
With respect to institutions which refuse to allow PAD, its supporters argue that the receipt of public funding negates rights to freedom of conscience and religious belief. Yet, as the Loyola School case in the Supreme Court of Canada shows, the Canadian Charter of Rights and Freedoms can protect private religious institutions from a breach by the state of these fundamental human rights.
It is also argued, in support of overriding institutions’ refusals to accommodate PAD, that patients should not have to be transferred to another institution willing to provide this intervention. But, for reasons of efficiency, access to necessary expertise and its optimal use, as well as cost-saving, the transfer of patients between institutions which share services occurs on a regular basis. Treating PAD as such a service would be far from exceptional.
Up to the present, no jurisdiction which permits PAD has forced physicians or institutions to participate, that is, physicians and institutions are free to opt out of any involvement: So why this insistence that all physicians and institutions must be complicit in PAD? Might the media stories about the cases of PAD carried out in the last few weeks pursuant to specific judicial authorization give us a clue? Pro-euthanasia advocates are reported as having welcomed the deaths occurring in this way, indeed celebrated that this was possible and legal. I suggest that one trigger for this reaction was that they saw their values and beliefs being affirmed by these deaths.
If correct, that might explain why pro-euthanasia supporters will not allow respect for freedom of conscience… Overriding such opposition provides pro-euthanasia advocates an opportunity to establish and affirm, first, that PAD and their “progressive” values have become societal norms governing how we die, and, second, that PAD is an acceptable exception to upholding the value of respect for life at the societal level.
There may also be something even deeper at work here, especially in the case of physicians who support imposing a duty on their colleagues with conscientious objections to PAD to [nevertheless] refer for it. Conscientious objection to PAD is a direct and palpable challenge, not only to the views and values of those who support it, but also to the conduct involved in undertaking it. The graver the moral issue involved in any given conduct, the greater the impact a challenge to it has on its ethical acceptability. Since, hitherto, especially in medicine, the gravest moral issue has been killing people (since Carter it has become failure to relieve suffering), PAD proponents will react with particular vehemence to suppress the challenge: Forcing physicians who object to PAD to be complicit waters down the impact of their objections.
Similarly, the formal approval associated with the court rulings authorizing PAD, and media attention and applause for providing it, helps proponents to confirm the correctness of their views and could assuage lingering doubts about the rightness of their conduct.
To repeat a warning: it must be kept in mind that respect for physicians’ freedom of conscience is not only necessary to respect them, it is also required to protect patients and can be the last such protection against doing them serious harm or other serious wrongdoing. We must maintain respect for all physicians’ freedom of conscience in general, including with regard to PAD, to maintain this protection of patients. Finally, the warning in Weber and Lin’s excellent article in Public Discourse (republished in MercatorNet) that recognizing claims that “gay rights” should override rights to freedom of conscience undermines the entire human rights structure, is equally applicable to recognizing that claims to PAD override freedom of conscience.
Margaret Somerville is founding director of the Centre for Medicine, Ethics, and Law at McGill University in Montreal.
Copyright © 2016 by Margaret Somerville.
The foregoing article was first published in MercatorNet on April 12, 2016. It appears in Artsforum Magazine with the permission of its author. Visit MercatorNet at: https://www.mercatornet.com/
“The Blood Sacrifice of Sergeant Bergdahl”
© By Matthew Hoh
Last week (on March 25, 2015), charges of desertion and “misbehavior before the enemy” were recommended against Sergeant Bowe Bergdahl. Tragically, Bergdahl was once again crucified, without evidence or trial, throughout mainstream, alternative, and social media. On the same day that Bergdahl was offered as a sacrifice to primarily Republican politicians, bloggers, pundits, chicken-hawks, and jingoists (Democrats mostly kept silent as he was paraded, electronically and digitally, in the latest ‘triumph’ of the ‘Global War on Terror’), Afghanistan’s President, Ashraf Ghani, was applauded (in person) by the American Congress. Such coincidences, whether they are arranged or accidental, often appear in literary or cinematic tales; but they also, occasionally, manifest themselves in real life – often appearing to juxtapose the virtues and vices of a society for the sake and advancement of political narratives.
The problem with this specific coincidence – for those on the Right, indulging in the fantasy of American military success abroad, as well as for those on the Left, desperate to prove that Democrats can be as tough as Republicans – is that reality may intrude. To the chagrin and consternation of many in Washington, Sergeant Bergdahl may prove to be the selfless hero, while President Ghani may play the thief, and Bergdahl’s departure from his unit in Afghanistan may come to be understood as just and his time as a prisoner of war principled, while President Obama’s continued propping-up and bankrolling of the government in Kabul, at the expense of American service members and taxpayers, comes to be fully acknowledged as immoral and profligate.
Buried in much of the media coverage this past week of the charges presented against Sergeant Bergdahl, with the exception of CNN, are details of the Army’s investigation into Bergdahl’s disappearance, capture, and captivity. As revealed by Bergdahl’s legal team, twenty-two Army investigators have constructed a report that details aspects of Bergdahl’s departure from his unit, his capture, and his five years as a prisoner of war that disprove many of the malicious rumors and depictions of him and his conduct. As documented in his lawyers’ statement submitted to the Army on March 25, 2015 – in response to Sergeant Bergdahl’s referral to the Article 32 preliminary hearing (which is roughly the military equivalent of a civilian grand jury) – the following facts are now known about Bergdahl and his time prior to and during his captivity as a prisoner of war:
(1) Sergeant Bergdahl is a “truthful person,” who “did not act out of a bad motive.”
(2) He did not have the intention to desert permanently nor did he have an intention to leave the Army when he left his unit’s outpost in eastern Afghanistan in 2009.
(3) He did not have the intention of joining the Taliban or assisting the enemy.
(4) He left his post to report “disturbing circumstances to the attention of the nearest general officer.”
(5) While he was a prisoner of war for five years, he was tortured; but he did not cooperate with his captors. Rather, Sergeant Bergdahl attempted to escape twelve times, each time with the knowledge he would be tortured or killed if caught.
(6) There is no evidence that American soldiers died looking for Sergeant Bergdahl.
Again, these are the findings of the Army’s investigation into Sergeant Bergdahl’s disappearance; they are not the apologies or fantasies of his legal team, Marines turned anti-war peaceniks like myself, or Obama fawning conspirators. The details behind these facts are contained in the Army’s report, authored by Major General Kenneth Dahl, which has not been publicly released, but hopefully will be made available to the public after Bergdahl’s preliminary hearing next month, or, if the desertion and misbehavior charges are pursued, during his court martial.
Just what events Sergeant Bergdahl witnessed, that would compel him to risk his life, traveling unarmed through enemy controlled territory, to provide information to an American general, are not presently known. We do know that the unit Sergeant Bergdahl belonged to underwent serious disciplinary actions both before and after Bergdahl’s capture, that several of his unit’s leaders were fired and replaced both prior to and subsequent to his capture, and, from communications between Bergdahl and his family prior to his capture, that Bergdahl was sickened and distraught over the actions of his unit, including its possible complicity in the death of an Afghan child. It is quite possible Sergeant Bergdahl left his unit to report a war crime or other serious crime committed by American forces. He may have been trying to report a failure of his immediate leadership, or it may have been something which, in hindsight, we would now consider trivial. Such an action on Bergdahl’s part would help to explain why his former platoon-mates, quite possibly the very men whom Bergdahl left to report on, have been so forceful in their condemnation of him, so determined not to forgive him for his disappearance, and so adamant in their refusal to show compassion for his suffering while a prisoner of war.
This knowledge may explain why the Taliban believed Sergeant Bergdahl had fallen behind on a patrol rather than deserted. If he truly was deserting, then Bergdahl most likely would have told the Taliban disparaging information about U.S. forces in an attempt to harvest friendship and avoid torture; but, if he was on a personal mission to report wrongdoing, then he certainly would not relate such information to the enemy. This may explain why Sergeant Bergdahl told his captors a lie rather than disclose his voluntary departure from the platoon outpost. This would also justify why Bergdahl left his base without his weapon or equipment. Before his departure from his outpost, Sergeant Bergdahl asked his team leader what would happen if a soldier left the base, without permission, with his weapon and other issued gear. Bergdahl’s team leader replied that the soldier would get in trouble. Understanding Sergeant Bergdahl as not deserting, but rather trying to serve the Army by reporting wrongdoing to another base would explain why he chose not to carry his weapon and issued gear off of the outpost: Bergdahl was not planning on deserting (i.e. quitting the army and the war), and he did not want to get in trouble for taking his weapon and issued gear with him on his unauthorized mission.
This possible exposure to senior leaders, and ultimately the media and American public, of civilian deaths or other offenses would also account for the non-disclosure agreement Bergdahl’s unit was forced to sign after his disappearance. Non-disclosure agreements may be common in the civilian world, and they also exist in military fields such as special operations and intelligence; but, for regular infantry units, they are rare. Sergeant Bergdahl’s capture by the enemy, possibly while en-route to reveal war crimes or other wrongdoings, is the type of event an embarrassed chain of command would attempt to hide. Such a cover up would certainly not be unprecedented in American military history.
Similar to the assertions made by many politicians, pundits, and former soldiers that Bergdahl deserted because, to paraphrase, he ‘hated America and wanted to join the Taliban,’ the notion that he cooperated and assisted the Taliban while a prisoner of war has also been debunked by the Army’s investigation. We know that Sergeant Bergdahl resisted his captors throughout his five years as a prisoner of war. His dozen escape attempts, with full knowledge of the risks involved in recapture, are in keeping with the Code of Conduct all American service members are required to abide by during captivity by the enemy.
In his own words, Sergeant Bergdahl’s description of his treatment reveals a ghastly and barbaric five years of non-stop isolation, exposure, malnutrition, dehydration, and physical and psychological torture. Among other reasons, his survival must be attested to an unshakeable moral fortitude and inner strength. The same inherent qualities that led him to seek out an American general to report “disturbing circumstances” could well be the same mental, emotional, and spiritual strengths that kept him alive through half a decade of brutal shackling, caging, and torture. It is my understanding that the U.S. military’s prisoner of war and survival training instructors are studying Sergeant Bergdahl’s experience in order to better train American service members to endure future experiences as prisoners of war.
Susan Rice, President Obama’s National Security Advisor, was roundly lampooned and criticized last year for stating that Sergeant Bergdahl “served with honor and distinction.” Only the most callous and politically craven among us – now understanding the torture Bergdahl endured, his resistance to his captors, and his adherence to the U.S. military’s Code of Conduct for five years in horrific conditions – would argue that he did not serve with honor and distinction. The moral, physical, and mental courage the Army documents in its report on Sergeant Bergdahl stands in marked contrast to those Americans who offered such a laudatory welcoming to President Ghani last week. President Ghani, who stole the Afghan presidential election last year in a manner incredibly gross and titanic, received a hero’s welcome by members of both political parties, many of whom have vehemently argued that Sergeant Bergdahl should still be a prisoner of war.
As he did for President Hamid Karzai in 2009, when President Karzai stole that year’s Afghan presidential election, President Obama ordered a similar muscular and fiscal continuation of American support for President Ghani. Like Karzai, Ghani’s government is composed of warlords and drug lords. Many of those in power in Afghanistan are, like Afghanistan’s Vice President, Rashid Dostum, known war criminals, while others are simply men who made vast fortunes aligning themselves with war criminals throughout Afghanistan’s bloody decades of war, such as Afghan Chief Executive Abdullah Abdullah (he too proved himself a competent ballot thief in last year’s presidential election and was awarded with the extra-constitutional position of ‘Chief Executive’). For these men, for their power and for their profit, President Obama has ordered a slowdown in U.S. troop departure from Afghanistan. This will keep the government in Kabul stable, while the commensurate supply of American cash will allow the patronage network, which is the actual mechanism of the Afghan government, to function.
However, just as President Ghani needs President Obama to ensure the Afghan government’s survival, Obama looks to Ghani to help preserve the pretense that the United States has been successful in its war in Afghanistan. With American policies failing quite spectacularly throughout the Greater Middle East, at the cost of the suffering of tens of millions of people, President Obama cannot politically afford to see the Afghan government, a government the United States put and keeps in power, fall. So, at least until he leaves office, Obama will continue keeping the Afghan government artificially alive. As Ghani visited Washington, D.C., the great lie of a war being won, so often seen in any empire’s history, was evoked over and over again. For all the posturing of ‘the Good War,’ particularly during Obama’s campaign in 2008 and his time in office, the reality of the war in Afghanistan is that hundreds of thousands have died, including 2,356 Americans; hundreds of thousands have been maimed, mutilated, and wounded; and while the psychiatric casualties will probably fully never be known, the assumption must be that they number in the millions.
Afghanistan under Western occupation has remained a nation without an economy, sustained only by foreign assistance. The only industry to speak of is the drug trade, which provides the world with over 90% of its opium and heroin and in which the Afghan government is heavily invested. Each year, under Western occupation, the drug lords have achieved near annual record crop yields. The Afghan insurgency has prospered as well under American and NATO presence. The military victory against the Taliban, promised and assured by successive American generals, never materialized, and now the Taliban are stronger than at any point since 2001. Fueled by anger at foreign occupation and the predations of a corrupt government dominated by ethnic, tribal, and traditional rivals, the Pashtun people of eastern and southern Afghanistan continue to provide the support necessary for the Taliban to each year kill record numbers of fellow Afghans, both civilians and security forces.
So, as President Ghani arrived with his hand out in Washington (the quid pro quo of course being the propping-up of his regime for the propping-up of the lie of the ‘goodness’ of the Afghan War), Sergeant Bergdahl was tossed to the crowd. The deaths of other young men are blamed on him, without obedience to the fact that those young men died because they were in a war in Afghanistan, not because of the actions or inactions of a twenty-two year old young man from Idaho driven to follow his conscience, and, I would bet, his faith as well, by the absurdity, malfeasance, and murder of the war. Meanwhile, our politics and media tell us if we possess compassion for Sergeant Bergdahl and his family, then we cannot care or express love for the families of those dead young men. The converse is staked out as a universal truth, and so our anger, frustration, confusion, guilt, sham, and sorrow over the war is transferred onto pawns of individual suffering and sacrifice. This war without purpose and without end; this war that was trumpeted as a crusade against evil, but, as can be attested by the moral injury that haunts me and my fellow veterans, living with the knowledge that the trope of evil can often be found in ourselves, has shown us as morally blighted as our enemies, even as the countless generals who sponsored and endorsed this war have never been held accountable for their failures or held to answer for their “optimism.”
There has always been an Alice in Wonderland like quality to politics, public perception, and war, more so in this day of never-ending political campaigns and hyper-partisanship. Up is down, small is big, and so on. Such a phenomenon is of no surprise as Sergeant Bergdahl, President Ghani, and the Good War are juxtaposed; but, the reality is that: the war has failed and is far from good; President Ghani is not much more than an election crook surrounded by murderers, drug kingpins, and war profiteers; and Sergeant Bergdahl? Well, from what we now know, he may just be the only decent man in any of this, a young man who sacrificed and suffered in war and who is now called a traitor and coward, because he simply may have just been trying to tell some truth about the ‘Good War.’
Matthew Hoh is a senior fellow at the Center for International Policy in Washington. He directs the Afghanistan Study Group, which advocates a change in Western strategy in that country. He served with the U.S. Marine Corps in Iraq.
Copyright © 2015 by Matthew Hoh.
The foregoing originally appeared in the Huffington Post on April 1, 2015. It is reprinted in Artsforum with the permission of its author. Visit him at: http://matthewhoh.com/
Editor’s Note: ‘Bowe’ Bergdahl was a sergeant with the U.S. Army when he was captured by a Taliban-aligned faction in Afghanistan. He was held captive by them for five years (from June 2009 until May 2014). He was released in exchange for five Taliban prisoners being held at Guantanamo Bay, an exchange that generated controversy in the United States because Bergdahl was absent from his base without permission at the time of his capture.
Additional Editor’s Note: Canada played an active role in front-line combat in Afghanistan during its long involvement there as a part of a coalition of some NATO members – the “International Security Assistance Force.” Canada secretly sent some special forces personnel to Afghanistan in late 2001. Regular Canadian forces followed in early 2002. From 2006 until 2011, Canada played a lead role in Kandahar province in direct combat with the Taliban. After 2011, a small contingent of Canadian forces remained in the country until 2014, in a training role away from the front lines. Canada lost 158 military personnel, one diplomat, one reporter, and two aid workers, in what was to become the longest military conflict in Canadian (and in American) history.
Why I Am Going on Hunger Strike
© By Nadezhda Tolokonnikova
An open letter on September 25, 2013
On Monday, September 23, I am declaring a hunger strike. This is an extreme method, but I am absolutely convinced it is my only recourse in the current situation. The prison wardens refuse to hear me. But I will not back down from my demands. I will not remain silent, watching in resignation as my fellow prisoners collapse under slave-like conditions. I demand that human rights be observed at the prison. I demand that the law be obeyed in this Mordovian camp. I demand we be treated like human beings, not slaves.
It has been a year since I arrived at Penal Colony No. 14 [henceforth, PC-14— Trans.] in the Mordovian village of Partsa. As the women convicts say, “Those who haven’t done time in Mordovia haven’t done time at all.” I had heard about the Mordovian prison camps while I was still being held at Pre-Trial Detention Center No. 6 in Moscow. They have the harshest conditions, the longest workdays, and the most flagrant lawlessness. Prisoners see their fellows off to Mordovia as if they were headed to the scaffold. Until the last, they keep hoping: “Maybe they won’t send you to Mordovia after all? Maybe the danger will pass you by?” It didn’t pass me by, and in the autumn of 2012, I arrived in the prison country on the banks of the Partsa River.
My first impression of Mordovia was the words uttered by the prison’s deputy warden, Lieutenant Colonel Kupriyanov, who actually runs PC-14. “You should know that when it comes to politics, I am a Stalinist.” Colonel Kulagin, the other warden (the prison is administered in tandem) called me in for a chat my first day here in order to force me to confess my guilt. “A misfortune has befallen you. Isn’t that right? You’ve been sentenced to two years in prison. People usually change their views when bad things happen to them. If you want to be paroled as soon as possible, you have to confess your guilt. If you don’t, you won’t get parole.” I told him right away I would work only the eight hours a day stipulated by the Labor Code. “The code is the code. What really matters is making your quota. If you don’t, you work overtime. And we’ve broken stronger wills than yours here!” Colonel Kulagin replied.
My whole shift works sixteen to seventeen hours a day in the sewing workshop, from 7:30 in the morning to 12:30 at night. At best, we get four hours of sleep a night. We have a day off once every month and a half. We work almost every Sunday. Prisoners “voluntarily” apply to work on weekends. In fact, there is nothing “voluntary” about it. These applications are written involuntarily on the orders of the wardens and under pressure from the inmates who help enforce their will.
No one dares to disobey (that is, not to apply to go to the manufacturing zone on Sunday, meaning going to work until one in the morning). Once, a 50-year-old woman asked to go back to the dorm zone at 8 pm instead of 12:30 pm so she could go to bed at 10 pm and get eight hours of sleep just once that week. She was not feeling well; she had high blood pressure. In response, a dorm unit meeting was called, where the woman was scolded, humiliated, insulted, and branded a parasite. “What, do you think you’re the only one who wants more sleep? You need to work harder; you’re strong as a horse!” When someone from the shift doesn’t come to work on doctor’s orders, they’re bullied as well. “I sewed when I had a fever of 40 Centigrade, and it was fine. Who did you think was going to pick up the slack for you?”
I was welcomed to my dorm unit by a convict finishing up a nine-year sentence. “The pigs are scared to put the squeeze on you themselves. They want to have the inmates do it.” Conditions at the prison really are organized in such a way that the inmates in charge of the work shifts and dorm units are the ones tasked by the wardens with crushing the will of inmates, terrorizing them, and turning them into speechless slaves.
There is a widely implemented system of unofficial punishments for maintaining discipline and obedience. Prisoners are forced to “stay in the local until lights out,” meaning they are forbidden to go into the barracks, whether it is fall or winter. [The “local” is a fenced-off passageway between two areas in the camp — Trans.] In the second unit, where the disabled and elderly live, there was a woman who ended up getting such bad frostbite after a day in the local that her fingers and one of her feet had to be amputated. The wardens can also “shut down sanitation” (forbid prisoners to wash up or go to the toilet) and “shut down the commissary and the tearoom” (forbid prisoners to eat their own food and drink beverages). It’s both funny and frightening when a 40-year-old woman tells you, “So we’re being punished today! I wonder whether we’ll be punished tomorrow, too.” She can’t leave the sewing workshop to pee or take a piece of candy from her purse. It’s forbidden.
Dreaming only of sleep and a sip of tea, the exhausted, harassed and dirty convict becomes obedient putty in the hands of the administration, which sees us solely as a free work force. So, in June 2013, my monthly wages came to 29 rubles [approx. 67 euro cents]—29 rubles! Our shift sews one 150 police uniforms per day. Where does the money made from them go?
The prison has been allocated funding to buy completely new equipment a number of times. However, the administration has only had the sewing machines repainted, with the convicts doing the work. We sew on obsolete and worn-out machines. According to the Labor Code, when equipment does not comply with current industry standards, production quotas must be lowered vis-à-vis standard industry norms. But the quotas only increase, abruptly and suddenly. “If you let them see you can deliver one hundred uniforms, they’ll raise the minimum to one hundred and twenty!” say veteran machine operators. And you cannot fail to deliver, either, or else the whole unit will be punished, the entire shift. Punished, for instance, by everyone being forced to stand on the parade ground for hours. Without the right to go to the toilet. Without the right to take a sip of water.
Two weeks ago, the production quotas for all prison work shifts were arbitrarily increased by fifty units. If previously the minimum was one hundred uniforms a day, now it is one hundred and fifty. According to the Labor Code, workers must be notified of a change in the production quota no less than two months before it is goes into effect. At PC-14, we just woke up one day to find we had a new quota because the idea happened to have popped into the heads of the wardens of our “sweatshop” (that’s what the prisoners call the penal colony). The number of people in the work shift decreases (they are released or transferred), but the quota grows. As a result, those who remain have to work harder and harder. The mechanics say they don’t have the parts to repair the machinery and will not be getting them. “There are no spare parts! When will they come? What, you don’t live in Russia? How can you ask such questions?” During my first few months in the manufacturing zone, I nearly mastered the profession of mechanic, out of necessity and on my own. I would attack my machine, screwdriver in hand, desperate to fix it. Your hands are scratched and poked by needles, your blood is all over the table, but you keep on sewing. You are part of an assembly line, and you have to do your job alongside the experienced seamstresses. Meanwhile, the damned machine keeps breaking down. Because you’re the newcomer and there is a lack of good equipment in the prison, you end up with the worst equipment, the most worthless machine on the line. And now it’s broken down again, and once again you run off looking for the mechanic, who is impossible to find. You are yelled at and berated for slowing down production. There are no sewing classes at the prison, either. Newcomers are immediately plunked down in front of their machines and given their assignments.
“If you weren’t Tolokonnikova, you would have had the shit kicked out of you a long time ago,” say fellow prisoners with close ties to the wardens. It’s true: other prisoners are beaten up. For not being able to keep up. They hit them in the kidneys, in the face. Convicts themselves deliver these beatings and not a single one of them happens without the approval and knowledge of the wardens. A year ago, before I came here, a Gypsy woman was beaten to death in the third unit. (The third unit is the “pressure cooker”: prisoners whom the wardens want subjected to daily beatings are sent there.) She died in the infirmary at PC-14. The administration was able to cover up the fact she had been beaten to death: a stroke was listed as the official cause of death. In another block, new seamstresses who couldn’t keep up were undressed and forced to sew naked. No one dares complain to the wardens, because all they will do is smile and send the prisoner back to the dorm unit, where the “snitch” will be beaten on the orders of those same wardens. For the prison warden, managed hazing is a convenient method for forcing convicts to totally obey their lawless regime.
A threatening, anxious atmosphere pervades the manufacturing zone. Eternally sleep-deprived, overwhelmed by the endless race to fulfill inhumanly large quotas, the convicts are always on the verge of breaking down, screaming at each other, fighting over the smallest things. Just recently, a young woman got stabbed in the head with a pair of scissors because she didn’t turn in a pair of pants on time. Another tried to cut her own stomach open with a hacksaw. She was stopped from finishing the job.
Those who found themselves at PC-14 in 2010, the year of smoke and wildfires [throughout Russia — Trans.] said that when the fire would approach the prison walls, convicts continued to go to the manufacturing zone and fulfill their quotas. Because of the smoke you couldn’t see a person standing two meters in front of you, but, covering their faces in wet kerchiefs, they all went to work anyway. Because of the emergency conditions, prisoners weren’t taken to the cafeteria for meals. Several women told me they were so horribly hungry they started keep diaries to document the horror of what was happening to them. When the fires were finally put out, prison security diligently rooted out these diaries during searches so that nothing would be leaked to the outside world.
Sanitary conditions at the prison are calculated to make the prisoner feel like a disempowered, filthy animal. Although there are hygiene rooms in the dorm units, a “general hygiene room” has been set up for corrective and punitive purposes. This room can accommodate five people, but all eight hundred prisoners are sent there to wash up. We must not wash ourselves in the hygiene rooms in our barracks: that would be too easy. There is always a stampede in the “general hygiene room” as women with little tubs try and wash their “wet nurses” (as they are called in Mordovia) as fast as they can, clambering on top of each other. We are allowed to wash our hair once a week. However, even this bathing day gets cancelled. A pump will break or the plumbing will be stopped up. At times, my dorm unit has been unable to bathe for two or three weeks. When the pipes are clogged, urine gushes out of the hygiene rooms and clumps of feces go flying. We’ve learned to unclog the pipes ourselves, but it doesn’t last long: they soon get stopped up again. The prison does not have a plumber’s snake for cleaning out the pipes. We get to do laundry once a week. The laundry is a small room with three faucets from which a thin trickle of cold water flows.
Convicts are always given stale bread, generously watered-down milk, exceptionally rancid millet and only rotten potatoes for the same corrective ends, apparently. This summer, sacks of slimy, black potato bulbs were bought to the prison in bulk. And they were fed to us.
One could endlessly discuss workplace and living condition violations at PC-14. However, my main grievance has to do with something else. It is that the prison administration prevents in the harshest possible way all complaints and petitions regarding conditions at PC-14 from leaving the prison. The wardens force people to remain silent, stooping to the lowest and cruelest methods to this end. All the other problems stem from this one: the increased work quotas, the sixteen-hour workday, and so on. The wardens feel they have impunity, and they boldly crack down on prisoners more and more. I couldn’t understand why everyone kept silent until I found myself facing the mountain of obstacles that crashes down on the convict who decides to speak out. Complaints simply do not leave the prison. The only chance is to complain through a lawyer or relatives. The administration, petty and vengeful, will meanwhile use all the means at its disposal for pressuring the convict so she will understand that her complaints will not make anything better for anyone, but will only make things worse. Collective punishment is employed: you complain about the lack of hot water, and they turn it off altogether.
In May 2013, my lawyer Dmitry Dinze filed a complaint about the conditions at PC-14 with the prosecutor’s office. The prison’s deputy warden, Lieutenant Colonel Kupriyanov, instantly made conditions at the camp unbearable. There was search after search, a flood of disciplinary reports on all my acquaintances, the seizure of warm clothes, and threats of seizure of warm footwear. At work, they get revenge with complicated sewing assignments, increased quotas, and fabricated defects. The forewoman of the neighboring unit, Lieutenant Colonel Kupriyanov’s right hand, openly incited prisoners to sabotage the items I was responsible for in the manufacturing zone so there would be an excuse to send me to solitary confinement for damaging “public property.” She also ordered the convicts in her unit to provoke a fight with me.
It is possible to tolerate anything as long as it affects you alone. But the method of collective correction at the prison is something else. It means that your unit, or even the entire prison, has to endure your punishment along with you. The most vile thing of all is that this includes people you’ve come to care about. One of my friends was denied parole, which she had been working towards for seven years by diligently overfulfilling quotas in the manufacturing zone. She was reprimanded for drinking tea with me. Lieutenant Colonel Kupriyanov transferred her to another unit the same day. Another close acquaintance of mine, a very cultured woman, was thrown into the pressure-cooker unit for daily beatings because she had read and discussed with me a Justice Department document entitled “Internal Regulations at Correctional Facilities.” Disciplinary reports were filed on everyone who talked to me. It hurt me that people I cared about were forced to suffer. Laughing, Lieutenant Colonel Kupriyanov said to me then, “You probably don’t have any friends left!” He explained it was all happening because of Dinze’s complaints.
Now I see I should have gone on hunger strike back in May, when I first found myself in this situation. However, seeing the tremendous pressure put on other convicts, I stopped the process of filing complaints against the prison.
Three weeks ago, on August 30, I asked Lieutenant Colonel Kupriyanov to grant the prisoners in my work shift eight hours of sleep. The idea was to decrease the workday from sixteen to twelve hours. “Fine, starting Monday, the shift can even work eight hours,” he replied. I knew this was another trap because it is physically impossible to make our increased quota in eight hours. So the work shift would lag behind and face punishment. “If they find out you were the one behind this,” the lieutenant colonel continued, “you definitely will never have it bad again, because there is no such thing as bad in the afterlife.” Kupriyanov paused. “And finally, never make requests for everyone. Make requests only for yourself. I’ve been working in the prison camps for many years, and whenever someone has come to me to request something for other people, they have always gone straight from my office to solitary confinement. You’re the first person this won’t happen to.”
Over the following weeks, life in my dorm unit and work shift was made intolerable. Convicts close to the wardens incited the unit to violence. “You’ve been punished by having tea and food, bathroom breaks, and smoking banned for a week. And now you’re always going to be punished unless you start treating the newcomers, especially Tolokonnikova, differently. Treat them like the old-timers used to treat you back in the day. Did they beat you up? Of course they did. Did they rip your mouths? They did. F*** them up. You won’t be punished for it.” I was repeatedly provoked to get involved in conflicts and fights, but what is the point of fighting with people who have no will of their own, who are only acting at the behest of the wardens? The Mordovian convicts are afraid of their own shadows. They are completely intimidated. If only the other day they were well disposed toward me and begging me to do something about the sixteen-hour workday, they are afraid even to speak to me after the administration has come down hard on me.
I made the wardens a proposal for resolving the conflict. I asked that they release me from the pressure artificially manufactured by them and enacted by the prisoners they control, and that they abolish slave labor at the prison by reducing the length of the workday and decreasing the quotas to bring them into compliance with the law. But in response the pressure has only intensified. Therefore, as of September 23, I declare a hunger strike and refuse to be involved in the slave labor at the prison until the administration complies with the law and treats women convicts not like cattle banished from the legal realm for the needs of the garment industry, but like human beings.
Co-translated by Bela Shayevich and “The Russian Reader.” The letter is reprinted in Artsforum Magazine with permission.
Nadezhda Tolokonnikova’s letter appeared previously in “The Russian Reader” and in “n+1 magazine.” Visit The Russian Reader at: http://therussianreader.wordpress.com/ Visit n+1 magazine at: http://nplusonemag.com/
Letter copyright © 2013 Nadezhda Tolokonnikova.
Translation copyright © 2013 by Bela Shayevich & The Russian Reader.
Editor’s Note: Nadezhda Tolokonnikova has been a prisoner of conscience since her arrest in March 2012. A 23-year old artist and political activist, as well as being a philosophy student at Moscow State University, Tolokonnikova is a member of the Russian punk rock group “Pussy Riot.” In March 2012, she and four other members of that group briefly participated in a musically satirical act of political dissent in a Moscow cathedral. Three of the five were apprehended, arrested, and charged with “hooliganism.” They were held without bail from March 2012 until their trial (some might say show-trial) began in late July 2012. On August 17, 2012, all three were convicted of so-called “hooliganism motivated by religious hatred” and each was sentenced to two years imprisonment. That insupportably draconian punishment appeared to be a harsh message to political opponents by the oppressive regime of Vladimir Putin that dissent will not be tolerated in today’s autocratic Russia. The convictions and sentences were upheld against Nadezhda Tolokonnikova and Maria Alyokhina, who were sent to separate prisons. Their fellow accused, Yekaterina Samutsevich, was released on probation with a suspended sentence, following the trio’s appeal in October 2012. Declared a prisoner of conscience by Amnesty International, Nadezhda Tolokonnikova is incarcerated at “PC-14,” a women’s penal colony in the Republic of Mordovia. Married with a young daughter, Tolokonnikova has permanent residency status in Canada. Artsforum Magazine has followed the Pussy Riot case, with all its obvious implications for the lack of political freedom, let alone legal justice, in Putin’s Russia, since the beginning.
Attack on Freedom: The Surveillance State — Part Two
“A Massive Surveillance State”: Glenn Greenwald Exposes Covert NSA Program Collecting Calls & Emails
Glenn Greenwald, columnist, attorney, and blogger for The Guardian newspaper interviewed by Amy Goodman of Democracy Now! on Friday, June 7, 2013.
The U.S. National Security Agency (NSA) has obtained access to the central servers of nine major Internet companies — including Google, Microsoft, Apple, Yahoo!, and Facebook. The Guardian and The Washington Post revealed the top-secret program, codenamed PRISM, after they obtained several slides from a 41-page training presentation for senior intelligence analysts. It explains how PRISM allows them to access emails, documents, audio and video chats, photographs, documents, and connection logs. “Hundreds of millions of Americans, and hundreds of millions – in fact, billions of people around the world – essentially rely on the Internet exclusively to communicate with one another,” Greenwald says. “Very few people use landline phones for much of anything. So when you talk about things like online chat and social media messages and emails, what you’re really talking about is the full extent of human communication.” This comes after Greenwald revealed Wednesday in another story that the NSA has been collecting the phone records of millions of Verizon customers. “They want to make sure that every single time human beings interact with one another … that they can watch it, and they can store it, and they can access it at any time.”
AMY GOODMAN: We begin with news that the National Security Agency has obtained access to the central servers of nine major Internet companies, including Google, Microsoft, Apple, Yahoo!, and Facebook. The Guardian and The Washington Post revealed the top secret program on Thursday, codenamed PRISM, after they obtained several slides from a 41-page training presentation for senior intelligence analysts. It explains how PRISM allows them to access emails, documents, audio and video chats, photographs, documents and connection logs that allow them to track a person or trace their connections to others. One slide lists the companies by name and the date when each provider began participating over the past six years. But an Apple spokesperson said it had “never heard” of PRISM and added, quote, “We do not provide any government agency with direct access to our servers and any agency requesting customer data must get a court order,” they said. Other companies had similar responses.
Well, for more, we’re joined by Glenn Greenwald, columnist, attorney, and blogger for The Guardian, where he broke his story in—that was headlined “NSA Taps in to Internet Giants’ Systems to Mine User Data, Secret Files Reveal.” This comes after he revealed Wednesday in another exclusive story that the “NSA has been collecting the phone records of millions of Verizon customers.” According to a new report in The Wall Street Journal, the scope of the NSA phone monitoring includes customers of all three major phone networks—Verizon, AT&T and Sprint—as well as records from Internet service providers and purchase information from credit card providers. Glenn Greenwald is also author of With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful. He’s joining us now via… video stream.
Glenn, welcome back to Democracy Now! Lay out this latest exclusive that you have just reported in The Guardian.
GLENN GREENWALD: There are top-secret NSA documents that very excitingly describe—excitedly describe, boast about even, how they have created this new program called the PRISM program that actually has been in existence since 2007, that enables them direct access into the servers of all of the major Internet companies which people around the world, hundreds of millions, use to communicate with one another. You mentioned all of those—all those names. And what makes it so extraordinary is that in 2008 the Congress enacted a new law that essentially said that except for conversations involving American citizens talking to one another on U.S. soil, the NSA no longer needs a warrant to grab, eavesdrop on, intercept whatever communications they want. And at the time, when those of us who said that the NSA would be able to obtain whatever they want and abuse that power, the argument was made, “Oh, no, don’t worry. There’s a great check on this. They have to go to the phone companies and go to the Internet companies and ask for whatever it is they want. And that will be a check.” And what this program allows is for them, either because the companies have given over access to their servers, as the NSA claims, or apparently the NSA has simply seized it, as the companies now claim—the NSA is able to go in—anyone at a monitor in an NSA facility can go in at any time and either read messages that are stored in Facebook or in real time surveil conversations and chats that take place on Skype and Gmail and all other forms of communication. It’s an incredibly invasive system of surveillance worldwide that has zero checks of any kind.
AMY GOODMAN: Glenn Greenwald, there is a chart prepared by the NSA in the top-secret document you obtained that shows the breadth of the data it’s able to obtain—email, video and voice chat, videos, photos, Skype chats, file transfers, social networking details. Talk about what this chart reveals.
GLENN GREENWALD: I think the crucial thing to realize is that hundreds of millions of Americans and hundreds of millions—in fact, billions of people around the world essentially rely on the Internet exclusively to communicate with one another. Very few people use landline phones for much of anything. So when you talk about things like online chats and social media messages and emails, what you’re really talking about is the full extent of human communication. And what the objective of the National Security Agency is — as the stories that we’ve revealed thus far demonstrate and as the stories we’re about to reveal into the future will continue to demonstrate—the objective of the NSA and the U.S. government is nothing less than destroying all remnants of privacy. They want to make sure that every single time human beings interact with one another, things that we say to one another, things we do with one another, places we go, the behavior in which we engage, that they know about it, that they can watch it, and they can store it, and they can access it at any time. And that’s what this program is about. And they’re very explicit about the fact that since most communications are now coming through these Internet companies, it is vital, in their eyes, for them to have full and unfettered access to it. And they do.
AMY GOODMAN: Glenn Greenwald, as you reported, the PRISM program—not to be confused with prison, the PRISM program—is run with the assistance of the companies that participate, including Facebook and Apple, but all of those who responded to a Guardian request for comment denied knowledge of any of the program. This is what Google said, quote: “We disclose user data to government in accordance with the law, and we review all such requests carefully. From time to time, people allege [that] we have created a government ‘back door’ into our systems, but Google does not have a back door for the government to access private user data.”
GLENN GREENWALD: Right. Well, first of all, after our story was published, and The Washington Post published more or less simultaneously a similar story, several news outlets, including NBC News, confirmed with government officials that they in fact have exactly the access to the data that we describe. The director of national intelligence confirmed to The New York Times, by name, that the program we identify and the capabilities that we described actually exist. So, you have a situation where somebody seems to be lying. The NSA claims that these companies voluntarily allow them the access; the companies say that they never did.
This is exactly the kind of debate that we ought to have out in the open. What exactly is the government doing in how it spies on us and how it reads our emails and how it intercepts our chats? Let’s have that discussion out in the open. To the extent that these companies and the NSA have a conflict and can’t get their story straight, let them have that conflict resolved in front of us. And then we, as citizens, instead of having this massive surveillance apparatus built completely secretly and in the dark without us knowing anything that’s going on, we can then be informed about what kinds of surveillance the government is engaged in and have a reasoned debate about whether that’s the kind of world in which we want to live.
AMY GOODMAN: Glenn Greenwald, on Thursday, Senate Intelligence Committee Chair Dianne Feinstein told reporters in the Senate gallery that the government’s top-secret court order to obtain phone records on millions of Americans is, quote, “lawful.”
SEN. DIANNE FEINSTEIN: As far as I know, this is the exact three-month renewal of what has been the case for the past seven years. This renewal is carried out by the FISA court under the business records section of the PATRIOT Act, therefore it is lawful.
AMY GOODMAN: That was Senator Dianne Feinstein. Glenn Greenwald?
GLENN GREENWALD: Well, first of all, the fact that something is lawful doesn’t mean that it isn’t dangerous or tyrannical or wrong. You can enact laws that endorse tyrannical behavior. And there’s no question, if you look at what the government has done, from the PATRIOT Act, the Protect America Act, the Military Commissions Act and the FISA Amendments Act, that’s exactly what the war on terror has been about.
But I would just defer to two senators who are her colleagues, who are named Ron Wyden and Mark Udall. They have—are good Democrats. They have spent two years now running around trying to get people to listen to them as they’ve been saying, “Look, what the Obama administration is doing in interpreting the PATRIOT Act is so radical and so distorted and warped that Americans will be stunned to learn” — that’s their words — “what is being done in the name of these legal theories, these secret legal theories, in terms of the powers the Obama administration has claimed for itself in how it can spy on Americans.”
When the PATRIOT Act was enacted—and you can go back and look at the debates, as I’ve done this week—nobody thought, even opponents of the PATRIOT Act, that it would ever be used to enable the government to gather up everybody’s telephone records and communication records without regard to whether they’ve done anything wrong. The idea of the PATRIOT Act was that when the government suspects somebody of being involved in terrorism or serious crimes, the standard of proof is lowered for them to be able to get these documents. But the idea that the PATRIOT Act enables bulk collection, mass collection of the records of hundreds of millions of Americans, so that the government can store that and know what it is that we’re doing at all times, even when there’s no reason to believe that we’ve done anything wrong, that is ludicrous, and Democratic senators are the ones saying that it has nothing to do with that law.
AMY GOODMAN: On Thursday, Glenn, Director of National Intelligence James Clapper said he stood by what he told Democratic Senator Ron Wyden of Oregon in March, when he said that the National Security Agency does “not wittingly” collect data on millions of Americans. Let’s go to that exchange.
SEN. RON WYDEN: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?
JAMES CLAPPER: No, sir.
SEN. RON WYDEN: It does not?
JAMES CLAPPER: Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly.
AMY GOODMAN: That’s the questioning of the head of the national intelligence, James Clapper, by Democratic Senator Ron Wyden. Glenn Greenwald?
GLENN GREENWALD: OK. So, we know that to be a lie, not a misleading statement, not something that was sort of parsed in a way that really was a little bit deceitful, but an outright lie. They collect—they collect data and records about the communications activities and other behavioral activities of millions of Americans all the time. That’s what that program is that we exposed on Wednesday. They go to the FISA court every three months, and they get an order compelling telephone companies to turn over the records, that he just denied they collect, with regard to the conversations of every single American who uses these companies to communicate with one another. The same is true for what they’re doing on the Internet with the PRISM program. The same is true for what the NSA does in all sorts of ways.
We are going to do a story, coming up very shortly, about the scope of the NSA’s spying activities domestically, and I think it’s going to shock a lot of people, because the NSA likes to portray itself as interested only in foreign intelligence gathering and only in targeting people who they believe are guilty of terrorism, and yet the opposite is true. It is a massive surveillance state of exactly the kind that the Church Committee warned was being constructed 35 years ago. And we intend to make all those facts available so people can see just how vast it is and how false those kind of statements are.
AMY GOODMAN: Let’s go back to Senate Intelligence Committee Chair Dianne Feinstein. Speaking on MSNBC, she said the leak should be investigated and that the U.S. has a, quote, “culture of leaks.”
SEN. DIANNE FEINSTEIN: There is nothing new in this program. The fact of the matter is that this was a routine three-month approval, under seal, that was leaked.
ANDREA MITCHELL: Should it be—should the leak be investigated?
SEN. DIANNE FEINSTEIN: I think so. I mean, I think we have become a culture of leaks now.
AMY GOODMAN: That was the Senate Intelligence Committee chair, Dianne Feinstein, being questioned by MSNBC’s Andrea Mitchell. Glenn Greenwald, your final response to this? And sum up your findings. They’re talking about you, Glenn.
GLENN GREENWALD: I think Dianne Feinstein may be the most Orwellian political official in Washington. It is hard to imagine having a government more secretive than the United States. Virtually everything that government does, of any significance, is conducted behind an extreme wall of secrecy. The very few leaks that we’ve had over the last decade are basically the only ways that we’ve had to learn what our government is doing.
But look, what she’s doing is simply channeling the way that Washington likes to threaten the people over whom they exercise power, which is, if you expose what it is that we’re doing, if you inform your fellow citizens about all the things that we’re doing in the dark, we will destroy you. This is what their spate of prosecutions of whistleblowers have been about. It’s what trying to threaten journalists, to criminalize what they do, is about. It’s to create a climate of fear so that nobody will bring accountability to them.
It’s not going to work. I think it’s starting to backfire, because it shows their true character and exactly why they can’t be trusted to operate with power in secret. And we’re certainly not going to be deterred by it in any way. The people who are going to be investigated are not the people reporting on this, but are people like Dianne Feinstein and her friends in the National Security Agency, who need investigation and transparency for all the things that they’ve been doing.
AMY GOODMAN: Glenn Greenwald, we want to thank you for being with us. Is this threat of you being investigated going to deter you in any way, as you continue to do these exclusives, these exposés?
GLENN GREENWALD: No, it’s actually going to embolden me to pursue these stories even more aggressively.
AMY GOODMAN: Glenn Greenwald, I want to thank you for being with us, columnist and blogger for The Guardian newspaper. We’ll link to your exposés on our website, “NSA Taps in to Internet Giants’ Systems to Mine User Data, Secret Files Reveal”, as well as “NSA Collecting Phone Records of Millions of Verizon Customers Daily”.
Glenn Greenwald, columnist, attorney, and blogger for The Guardian newspaper was interviewed by Amy Goodman of Democracy Now! on Friday, June 7, 2013. Democracy Now! is a daily independent global news hour accessible online and on radio stations across North America. The foregoing interview is reprinted in Artsforum with the permission of Democracy Now! — from a transcript provided by that organization.
The original content of this program is licensed under a “Creative Commons Attribution Noncommercial-No Derivative Works 3.0 United States License.”
Visit Democracy Now! at http://www.democracynow.org/
Attack on Freedom: The Surveillance State — Part One
NSA Whistleblowers: “All U.S. Citizens” Targeted by Surveillance Program, Not Just Verizon Customers
Shayana Kadidal, senior attorney at the Center for Constitutional Rights, and two former National Security Agency employees turned whistleblowers — Thomas Drake & William Binney — interviewed by Amy Goodman of Democracy Now! on Thursday, June 6, 2013.
A leaked court order has revealed the Obama administration is conducting a massive domestic surveillance program by collecting telephone records of millions of Verizon customers. The Guardian newspaper published a classified order issued by the Foreign Intelligence Surveillance Court directing Verizon’s Business Network Services to give the National Security Agency electronic data, including all calling records on an “ongoing, daily basis.” The order covers each phone number dialed by all customers, along with location and routing data, and with the duration and frequency of the calls, but not the contents of the communications.
We discuss the news with three guests: Shayana Kadidal, senior managing attorney at the Center for Constitutional Rights, and two former National Security Agency employees turned whistleblowers: Thomas Drake and William Binney. In 2010, the Obama administration charged Drake with violating the Espionage Act after he was accused of leaking classified information to the press about waste and mismanagement at the agency. The charges were later dropped. “Where has the mainstream media been? These are routine orders, nothing new,” Drake says. “What’s new is we’re seeing an actual order. And people are somehow surprised by it. The fact remains that this program has been in place for quite some time. It was actually started shortly after 9/11. The PATRIOT Act was the enabling mechanism that allowed the United States government in secret to acquire subscriber records from any company.”
Binney, who worked at nearly 40 years at the NSA and resigned shortly after the 9/11 attacks, says: “NSA has been doing all this stuff all along, and it’s been all the companies, not just one. And I basically looked at that and said: If Verizon got one, so did everybody else. Which means that they’re just continuing the collection of this kind of information of all U.S. citizens.”
JUAN GONZÁLEZ: A leaked top-secret order has revealed the Obama administration is conducting a massive domestic surveillance program by collecting telephone records of millions of Verizon Business customers. Last night The Guardian newspaper published a classified order issued by the Foreign Intelligence Surveillance Court directing Verizon’s Business Network Services to give the National Security Agency electronic data, including all calling records on an “ongoing, daily basis.” The order covers each phone number dialed by all customers along with location and routing data, and with the duration and frequency of the calls, but not the content of the communications. The order expressly compels Verizon to turn over records for both international and domestic records. It also forbids Verizon from disclosing the existence of the court order. It is unclear if other phone companies were ordered to hand over similar information.
AMY GOODMAN: According to legal analysts, the Obama administration relied on a controversial provision in the USA PATRIOT Act, Section 215, that authorizes the government to seek secret court orders for the production of “any tangible thing relevant to a foreign intelligence or terrorism investigation.” The disclosure comes just weeks after news broke that the Obama administration had been spying on journalists from the Associated Press and James Rosen, a reporter from Fox News.
We’re now joined by two former employees of the National Security Agency, Thomas Drake and William Binney. In 2010, the Obama administration charged Drake with violating the Espionage Act after he was accused of leaking classified information to the press about waste and mismanagement at the agency. The charges were later dropped. William Binney worked for almost 40 years at the NSA. He resigned shortly after the September 11th attacks over his concern over the increasing surveillance of Americans. We’re also joined in studio here by Shayana Kadidal, senior managing attorney at the Center for Constitutional Rights.
First, for your legal opinion, Shayana, can you talk about the significance of what has just been revealed?
SHAYANA KADIDAL: Sure. So I think, you know, we have had stories, including one in USA Today in May 2006, that have said that the government is collecting basically all the phone records from a number of large telephone companies. What’s significant about yesterday’s disclosure is that it’s the first time that we’ve seen the order, to really appreciate the sort of staggeringly broad scope of what one of the judges on this Foreign Intelligence Surveillance Court approved of, and the first time that we can now confirm that this was under Section 215 of the PATRIOT Act, which, you know, has been dubbed the libraries provision, because people were mostly worried about the idea that the government would use it to get library records. Now we know that they’re using it to get phone records. And just to see the immense scope of this warrant order, you know, when most warrants are very narrow, is really shocking as a lawyer.
JUAN GONZÁLEZ: Well, some might argue that the Obama administration at least went to the FISA court to get approval for this, unlike the Bush administration in the past.
SHAYANA KADIDAL: Right. Well, we don’t know if the Bush administration was, you know, getting these same orders and if this is just a continuation, a renewal order. It lasted for only—it’s supposed to last for only three months, but they may have been getting one every three months since 2006 or even earlier. You know, when Congress reapproved this authority in 2011, you know, one of the things Congress thought was, well, at least they’ll have to present these things to a judge and get some judicial review, and Congress will get some reporting of the total number of orders. But when one order covers every single phone record for a massive phone company like Verizon, the reporting that gets to Congress is going to be very hollow. And then, similarly, you know, when the judges on the FISA court are handpicked by the chief justice, and the government can go to a judge, as they did here, in North Florida, who was appointed by Ronald Reagan, who’s 73 years old and is known as a draconian kind of hanging judge in his sentencing, and get some order that’s this broad, I think both the judicial review and the congressional oversight checks are very weak.
AMY GOODMAN: And, of course, this is just Verizon, because that’s what Glenn Greenwald of The Guardian got a hold of. That doesn’t mean that there aren’t other orders for the other telephone companies, right?
SHAYANA KADIDAL: Absolutely.
AMY GOODMAN: Like BellSouth, like AT&T, etc.
SHAYANA KADIDAL: Right.
AMY GOODMAN: As there have been in the past.
SHAYANA KADIDAL: Yeah, those were—those were companies mentioned in that USA Today story in 2006. Nothing about the breadth of this order indicates that it’s tied to any particular national security investigation, as the statute says it has to be. So, some commentators yesterday said, “Well, this order came out on—you know, it’s dated 10 days after the Boston attacks.” But it’s forward-looking. It goes forward for three months. Why would anyone need to get every record from Verizon Business in order to investigate the Boston bombings after they happened?
JUAN GONZÁLEZ: And, William Binney, a decades-long veteran of the NSA, your reaction when you heard about this news?
WILLIAM BINNEY: Well, this was just the FBI going after data. That was their request. And they’re doing that because they—if they want to try to get it—they have to have it approved by a court in order to get it as evidence into a courtroom. But NSA has been doing all this stuff all along, and it’s been all the companies, not just one. And I basically looked at that and said, well, if Verizon got one, so did everybody else, which means that, you know, they’re just continuing the collection of this kind of information on all U.S. citizens. That’s one of the main reasons they couldn’t tell Senator Wyden, with his request of how many U.S. citizens are in the NSA databases. There’s just—in my estimate, it was—if you collapse it down to all uniques, it’s a little over 280 million U.S. citizens are in there, each in there several hundred to several thousand times.
AMY GOODMAN: In fact, let’s go to Senator Wyden. A secret court order to obtain the Verizon phone records was sought by the FBI under a section of the Foreign Intelligence Surveillance Act that was expanded by the PATRIOT Act. In 2011, Democratic Senator Ron Wyden warned about how the government was interpreting its surveillance powers under Section 215 of the PATRIOT Act.
SEN. RON WYDEN: When the American people find out how their government has secretly interpreted the PATRIOT Act, they are going to be stunned, and they are going to be angry. And they’re going asked senators, “Did you know what this law actually permits? Why didn’t you know before you voted on it?” The fact is, anyone can read the plain text of the PATRIOT Act, and yet many members of Congress have no idea how the law is being secretly interpreted by the executive branch, because that interpretation is classified. It’s almost as if there were two PATRIOT Acts, and many members of Congress have not read the one that matters. Our constituents, of course, are totally in the dark. Members of the public have no access to the secret legal interpretations, so they have no idea what their government believes the law actually means.
AMY GOODMAN: That’s Senator Ron Wyden. He and Senator Udall have been raising concerns because they sit on the Senate Intelligence Committee but cannot speak out openly exactly about what they know. William Binney, you left the agency after September 2001, deeply concerned—this is after you’d been there for 40 years—about the amount of surveillance of U.S. citizens. In the end, your house was raided. You were in the shower. You’re a diabetic amputee. The authorities had a gun at your head. Which agency had the gun at your head, by the way?
WILLIAM BINNEY: That was the FBI.
AMY GOODMAN: You were not charged, though you were terrorized. Can you link that to what we’re seeing today?
WILLIAM BINNEY: Well, it’s directly linked, because it has to do with all of the surveillance of the U.S. citizens that’s been going on since 9/11. I mean, that’s—they were getting—from just one company alone, that I knew of, they were getting over 300 million call records a day on U.S. citizens. So, I mean, and when you add the rest of the companies in, my estimate was that there were probably three billion phone records collected every day on U.S. citizens. So, over time, that’s a little over 12 trillion in their databases since 9/11. And that’s just phones; that doesn’t count the emails. And they’re avoiding talking about emails there, because that’s also collecting content of what people are saying. And that’s in the databases that NSA has and that the FBI taps into. It also tells you how closely they’re related. When the FBI asks for data and the court approves it, the data is sent to NSA, because they’ve got all the algorithms to do the diagnostics and community reconstructions and things like that, so that the FBI can—makes it easier for the FBI to interpret what’s in there.
JUAN GONZÁLEZ: We’re also joined by Thomas Drake, who was prosecuted by the Obama administration after he blew the whistle on mismanagement and waste and constitutional violations at the NSA. Thomas Drake, your reaction to this latest revelation?
THOMAS DRAKE: My reaction? Where has the mainstream media been? This is routine. These are routine orders. This is nothing new. What’s new is we’re actually seeing an actual order. And people are somehow surprised by it. The fact remains that this program has been in place for quite some time. It was actually started shortly after 9/11. The PATRIOT Act was the enabling mechanism that allowed the United States government in secret to acquire subscriber records of—from any company that exists in the United States.
I think what people are now realizing is that this isn’t just a terrorist issue. This is simply the ability of the government in secret, on a vast scale, to collect any and all phone call records, including domestic to domestic, local, as well as location information. We might—there’s no need now to call this the Foreign Intelligence Surveillance Court. Let’s just call it the surveillance court. It’s no longer about foreign intelligence. It’s simply about harvesting millions and millions and millions of phone call records and beyond. And this is only just Verizon. As large as Verizon is, with upwards of 100 million subscribers, what about all the other telecoms? What about all the other Internet service providers? It’s become institutionalized in this country, in the greatest of secrecy, for the government to classify, conceal not only the facts of the surveillance, but also the secret laws that are supporting surveillance.
AMY GOODMAN: Thomas Drake, what can they do with this information, what’s called metadata? I mean, they don’t have the content of the conversation, supposedly—or maybe we just don’t see that, that’s under another request, because, remember, we are just seeing this one, for people who are listening and watching right now, this one request that is specifically to—and I also want to ask you: It’s Verizon Business Services; does that have any significance? But what does it mean to have the length of time and not the names of, but where the call originates and where it is going, the phone numbers back and forth?
THOMAS DRAKE: You get incredible amounts of information about subscribers. It’s basically the ability to forward-profile, as well as look backwards, all activities associated with those phone numbers, and not only just the phone numbers and who you called and who called you, but also the community of interests beyond that, who they were calling. I mean, we’re talking about a phenomenal set of records that is continually being added to, aggregated, year after year and year, on what have now become routine orders. Now, you add the location information, that’s a tracking mechanism, monitoring tracking of all phone calls that are being made by individuals. I mean, this is an extraordinary breach. I’ve said this for years. Our representing attorney, Jesselyn Radack from the Government Accountability Project, we’ve been saying this for years and no—from the wilderness. We’ve had—you’ve been on—you know, you’ve had us on your show in the past, but it’s like, hey, everybody kind of went to sleep, you know, while the government is harvesting all these records on a routine basis.
You’ve got to remember, none of this is probable cause. This is simply the ability to collect. And as I was told shortly after 9/11, “You don’t understand, Mr. Drake. We just want the data.” And so, the secret surveillance regime really has a hoarding complex, and they can’t get enough of it. And so, here we’re faced with the reality that a government in secret, in abject violation of the Fourth Amendment, under the cover of enabling act legislation for the past 12 years, is routinely analyzing what is supposed to be private information. But, hey, it doesn’t matter anymore, right? Because we can get to it. We have secret agreements with the telecoms and Internet service providers and beyond. And we can do with the data anything we want.
So, you know, I sit here—I sit here as an American, as I did shortly after 9/11, and it’s all déjà vu for me. And then I was targeted—it’s important to note, I—not just for massive fraud, waste and abuse; I was specifically targeted as the source for The New York Times article that came out in December of 2005. They actually thought that I was the secret source regarding the secret surveillance program. Ultimately, I was charged under the Espionage Act. So that should tell you something. [It] sends an extraordinarily chilling message. It is probably the deepest, darkest secret of both administrations, greatly expanded under the Obama administration. It’s now routine practice.
JUAN GONZÁLEZ: Shayana, I’d like to ask you, specifically that issue of the FISA court also authorizing domestic surveillance. I mean, is there—even with the little laws that we have left, is there any chance for that to be challenged, that the FISA court is now also authorizing domestic records being surveiled?
AMY GOODMAN: FISA being Foreign Intelligence Surveillance Act.
SHAYANA KADIDAL: Right. I mean, you know, two things about that. First, the statute says that there have to be reasonable grounds to think that this information is relevant to an investigation of either foreign terrorist activity or something to do with a foreign power. So, you know, obviously, this perhaps very compliant judge approved this order, but it doesn’t seem like this is what Congress intended these orders would look like. Seems like, on the statute, that Congress intended they would be somewhat narrower than this, right?
But there’s a larger question, which is that, for years, the Supreme Court, since 1979, has said, “We don’t have the same level of protection over, you know, the calling records—the numbers that we dial and how long those calls are and when they happen—as we do over the contents of a phone call, where the government needs a warrant.” So everyone assumes the government needs a warrant to get at your phone records and maybe at your emails, but it’s not true. They just basically need a subpoena under existing doctrine. And so, the government uses these kind of subpoenas to get your email records, your web surfing records, you know, cloud—documents in cloud storage, banking records, credit records. For all these things, they can get these extraordinarily broad subpoenas that don’t even need to go through a court.
AMY GOODMAN: Shayana, talk about the significance of President Obama nominating James Comey to be the head of the FBI—
SHAYANA KADIDAL: One of the—
AMY GOODMAN: —and who he was.
SHAYANA KADIDAL: Right. One of the grand ironies is that Obama has nominated a Republican who served in the Bush administration for a long time, a guy with a reputation as being kind of personally incorruptible. I think, in part, he nominated him to be the head of the FBI, the person who would, you know, be responsible for seeking and renewing these kind of orders in the future, for the next 10 years—he named Comey, a Republican, because he wanted to, I think, distract from the phone record scandal, the fact that Holder’s Justice Department has gone after the phone records of the Associated Press and of Fox News reporter James Rosen, right?
And you asked, what can you tell from these numbers? Well, if you see the reporter called, you know, five or six of his favorite sources and then wrote a particular report that divulged some embarrassing government secret, that’s—you know, that’s just as good as hearing what the reporter was saying over the phone line. And so, we had this huge, you know, scandal over the fact that the government went after the phone records of AP, when now we know they’re going after everyone’s phone records…. And I think one of the grand ironies is that… he named Comey because he had this reputation as being kind of a stand-up guy, who stood up to Bush in John Ashcroft’s hospital room in 2004 and famously said, “We have to cut back on what the NSA is doing.” But what the NSA was doing was probably much broader than what The New York Times finally divulged in that story in December ’05.
AMY GOODMAN: Very quickly, will Glenn Greenwald now be investigated, of The Guardian, who got the copy of this, so that they can find his leak, not to mention possibly prosecute him?
SHAYANA KADIDAL: Oh, I think absolutely there will be some sort of effort to go after him punitively. The government rarely tries to prosecute people who are recognized as journalists. And so, Julian Assange maybe is someone they try to portray as not a journalist. Glenn Greenwald, I think, would be harder to do. But there are ways of going after them punitively that don’t involve prosecution, like going after their phone records so their sources dry up.
AMY GOODMAN: I saw an astounding comment by Pete Williams, who used to be the Pentagon spokesperson, who’s now with NBC, this morning, talking—he had talked with Attorney General Eric Holder, who had said, when he goes after the reporters—you know, the AP reporters, the Fox reporter—they’re not so much going after them; not to worry, they’re going after the whistleblowers. They’re trying to get, through them, the people. What about that, that separation of these two?
SHAYANA KADIDAL: Right. I’ll give you an example from the AP. They had a reporter named, I believe, John Solomon. In 2000, he reported a story about the botched investigation into Robert Torricelli. The FBI didn’t like the fact that they had written this—he had written this story about how they dropped the ball on that, so they went after his phone records. And three years later, he talked to some of his sources who had not talked to him since then, and they said, “We’re not going to talk to you, because we know they’re getting your phone records.”
AMY GOODMAN: We want to thank you all for being with us. Shayana Kadidal of the Center for Constitutional Rights; William Binney and Thomas Drake both worked for the National Security Agency for years, and both ultimately resigned. Thomas Drake was prosecuted. They were trying to get him under the Espionage Act. All of those charges were dropped. William Binney held at gunpoint by the FBI in his shower, never prosecuted. Both had expressed deep concern about the surveillance of American citizens by the U.S. government. You can go to our website at democracynow.org for our hours of interviews with them, as well.
Shayana Kadidal, senior attorney at the Center for Constitutional Rights, and two former National Security Agency employees turned whistleblowers: Thomas Drake and William Binney, were interviewed by Amy Goodman of Democracy Now! on Thursday, June 6, 2013. Democracy Now! is a daily independent global news hour accessible online and on radio stations across North America. The foregoing interview is reprinted in Artsforum with the permission of Democracy Now! — from a transcript provided by that organization.
The original content of this program is licensed under a “Creative Commons Attribution Noncommercial-No Derivative Works 3.0 United States License.”
Visit Democracy Now! at http://www.democracynow.org/
Here’s What’s Wrong with Obama’s Drone Policy
© By David Cole
Imagine that Russian President Vladimir Putin had used remote-controlled drones armed with missiles to kill thousands of “enemies” (and plenty of civilians) throughout Asia and Eastern Europe. Imagine, further, that Putin refused to acknowledge any of the killings and simply asserted in general terms that he had the right to kill anyone he secretly determined was a leader of the Chechen rebels or “associated forces,” even if they posed no immediate threat of attack on Russia. How would the State Department treat such a practice in its annual reports on human rights compliance?
Conveniently, the State Department’s country reports leave out the United States. Otherwise, it might have to pass judgment on President Obama’s use of drones to kill thousands of our “enemies,” and lots of civilians, many of them far from any battlefield. But as citizens in whose name the president is exercising this power, we need to pass judgment. The challenge is that Obama has kept so much of the policy and practice under wraps that it is almost impossible to do this. The leak of a Justice Department white paper defending the legality of killing even U.S. citizens provides the most detailed look yet at this disturbing practice. The more we learn, the more troubling the practice is.
Some critics indiscriminately decry all drone strikes as “extrajudicial assassinations,” arguing that killing is never lawful beyond the battlefield and even comparing the practice to former President George W. Bush’s authorization of torture. But those criticisms are exaggerated and misguided. Killing and torture are fundamentally different. Governments have always killed the enemy during wars, and it is not unlawful to do so. No one accuses Abraham Lincoln or Franklin Roosevelt of “extrajudicial assassinations” because their troops killed tens of thousands of enemy soldiers without charges or trials. That the Confederate soldiers were American citizens doesn’t change that fact. And even in the absence of an existing war, and therefore outside any battlefield, states are permitted to use lethal force to respond to an imminent armed attack.
Thus, drone strikes against enemy fighters in Afghanistan, or even in the border regions of Pakistan that have become part of the battlefield, are not inherently illegal, so long as the latter are done with Pakistan’s consent. Nor is it wrong or unlawful to deploy a drone where there is no other way to halt an imminent attack. But the white paper does not limit the president’s authority to kill to members of Al Qaeda and the Taliban, or to those planning an immediate attack. It maintains that the president can kill an American citizen who is not a member of Al Qaeda, not on a battlefield, not participating in hostilities and not engaged in or planning an attack against the United States when he is killed. What’s more, the White House evidently believes it can kill us in secret and never own up to the fact. It has steadfastly refused to officially acknowledge that it has killed anyone with a drone outside Afghanistan.
So it won’t do to dismiss the drone program as illegal assassinations, full stop. A more nuanced critique is necessary. The program is fundamentally flawed in at least four respects:
1. The power to kill with drones should be governed by clear, transparent rules, not by a secret playbook. In the early days of the Obama administration, the drone program was entirely secret. Over time, administration officials have spoken in general terms about the legal standards they employ. But even after the white paper’s disclosure, much remains unclear. We don’t know, for example, what procedures are used to determine whether a person is properly placed on the “kill list,” nor even what standard of proof is required. Does anyone, for example, play the role of ‘devil’s advocate,’ defending the absent target and questioning the government’s case? Surely if the president claims the power to kill any of us without trial, we have a right to know the standards and procedures he will use.
2. Killing in self-defense should always be a last resort. The white paper concedes, at least as to citizens, that a drone strike off the battlefield is appropriate only if the target poses an imminent threat and capture is not feasible—the traditional requisites for self-defense. But it then says a threat can be imminent even if it is not immediate. It presumptively treats all operational leaders of Al Qaeda or its undefined “associated forces” as “continually” planning attacks and therefore always posing an imminent threat—even if they are sleeping. Anwar al-Awlaki, a U.S. citizen killed by a drone in Yemen in September 2011, was reportedly on the kill list for more than a year before he was killed. How could he have posed an imminent threat for more than a year? The imminence requirement is designed to ensure that lethal force is a last resort; if no attack is on the horizon, there may be time to address the threat by less extreme means, such as capture and trial.
3. At least when it comes to American citizens, it cannot be constitutional for the president to deliberately kill and then refuse to acknowledge doing so. Unacknowledged detentions and killings were condemned as “disappearances” when Argentina’s military junta employed them in its “dirty war” in the 1970s. How can a government that is supposed to be of, by, and for the people have the power to kill its own while keeping secret the fact that it has done so? Accountable and limited government begins with transparency.
4. The power to kill by remote control anywhere in the world should not unilaterally reside in the executive branch. The white paper dismissively claims that courts cannot second-guess the executive’s “predictive” judgments about national security. But courts already do this. The Foreign Intelligence Surveillance Court, composed of federal judges, reviews requests for search and wiretap warrants based on national security concerns. Those warrants by definition rest on predictive judgments about whether evidence relating to national security will be found. If we demand that a court authorize even a temporary wiretap, shouldn’t we also demand that a court review a decision to end a human life? Some have questioned the utility of a necessarily one-sided and secret warrant process, but warrants have served us well for centuries by interposing an independent decision-maker between the executive and the citizenry. Due process may require advance notice to the target in some instances and/or judicial review after the fact, as the Israeli Supreme Court requires. But we can’t leave this awesome power exclusively in executive hands.
Some object that since ordinary uses of armed force in wartime do not require this sort of public accountability, judicial review, and due process, those requirements ought not to apply to drone strikes. During World War II, FDR did not have to issue criteria for a kill list, involve courts or publish his officers’ specific rules of engagement. But the technology of drone — coupled with the murky scope of this “war” — make those features essential now. Because they permit the killing of people without putting boots on the ground, or risking American lives, and because they are, at least in theory, surgically precise, drones reduce the considerable practical disincentives to lethal force.
The ambiguous definitions of the scope of this war — and even of the enemy — risk establishing a precedent that drones can be used against anyone a government considers even a long-term threat. The administration claims still to be operating under the 2001 Authorization for Use of Military Force (AUMF), but that sanctioned military force only against those who attacked us on 9/11 and those who harbored them. In Yemen and Somalia, we have killed members of Al Qaeda in the Arabian Peninsula and Al Shabaab. Neither organization even existed in 2001, and Al Shabaab seems principally focused on domestic Somali grievances. Does the AUMF authorize the government to kill by remote control any group that says it is inspired by Al Qaeda? If so, has President Obama resurrected the “global war on terror” that he previously rejected?
Much like transnational wars against non-state actors, drones challenge traditional legal and ethical categories. The root of the problem is that they make it too easy to kill. We need not and cannot forswear their use. We should not confuse them with assassinations and torture. But we must insist on clear restrictions, transparent practices, independent oversight and accountability—in short, the rule of law. In his only major presidential speech on national security, in May 2009, President Obama promised that he would fight terror within the confines of our values and the rule of law. What happened to that promise?
© 2013 by David Cole.
David Cole is legal affairs correspondent for “The Nation” and teaches at Georgetown University Law School. He is the author of “The Torture Memos: Rationalizing the Unthinkable” (New Press, 2009).
This article originally appeared in the March 4, 2013 edition of The Nation. It is reprinted here with the permission of its author and of The Nation. Visit The Nation at: http://www.thenation.com/
America and Torture: Embracing the Unthinkable
After Obama Shuns Probe, Bipartisan Panel Finds “Indisputable” Evidence U.S. Tortured Under Bush
Human Rights Watch adviser Laura Pitter interviewed by Amy Goodman of Democracy Now! on Wednesday, April 17, 2013.
An independent bipartisan task force has concluded that it is “indisputable” the United States engaged in torture and the George W. Bush administration bore responsibility. The 11-member Task Force on Detainee Treatment was convened by The Constitution Project after President Obama chose not to support a national commission to investigate the counterterrorism programs. It was co-chaired by Asa Hutchinson, a former Republican congressman from Arkansas, NRA [National Rifle Association] consultant and undersecretary of the Department of Homeland Security under President George W. Bush. The report concludes that never before in U.S. history had there been “the kind of considered and detailed discussions that occurred after 9/11 directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody.” While the report focused largely on the Bush administration after 9/11, it also criticizes a lack of transparency under Obama. We speak with Laura Pitter, counterterrorism adviser at Human Rights Watch.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Nermeen Shaikh.
NERMEEN SHAIKH: We turn now to a landmark nonpartisan review of interrogation and detention methods used in the post-9/11 era that concludes the United States engaged in torture. The 577-page report was two years in the making and found the highest officials in the George W. Bush administration were responsible. It was conducted by the Task Force on Detainee Treatment, an 11-member panel convened by The Constitution Project after President Obama chose not to support a national commission to investigate the counterterrorism programs. The authors of the report wrote that never before in U.S. history had there been, quote, “the kind of considered and detailed discussions that occurred after 9/11 directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody.” The bipartisan panel was co-chaired by Asa Hutchinson, a former GOP [Republican Party] congressman from Arkansas, NRA consultant and undersecretary of the Department of Homeland Security under President George W. Bush.
ASA HUTCHINSON: We found that U.S. personnel, in many instances, used interrogation techniques on detainees that constitute torture. American personnel conducted an even larger number of interrogations that involved cruel, inhumane or degrading treatment. Both categories of actions violate U.S. laws and international treaty obligations.
This conclusion is not based upon our own personal impressions, but rather is grounded in a thorough and detailed examination of what constitutes torture from a historical and legal context. We looked at court cases and determined that the treatment of detainees, in many instances, met the standards the courts have determined as constituting torture. But in addition, you look at the United States State Department, in its annual country reports on human rights practices, has characterized many of the techniques used against detainees in U.S. custody in the post-9/11 environment—the State Department has characterized the same treatment as torture, abuse, or cruel treatment when those techniques were employed by foreign governments. The CIA recognized this in an internal review and acknowledged that many of the interrogation techniques it employed were inconsistent with the public policy positions the United States has taken regarding human rights. The United States is understandably subject to criticism when it criticizes another nation for engaging in torture and then justifies the same conduct under national security arguments.
There are those that defend the techniques of—like waterboarding, stress positions, and sleep deprivation, because there was the Office of Legal Counsel [OLC], which issued a decision approving of their use because they define them as not being torture. Those opinions have since been repudiated by legal experts and the OLC itself. And even in its opinion, it relied not only on a very narrow legal definition of torture, but also on factual representations about how the techniques would be implemented, that later proved inaccurate. This is important context as to how the opinion came about, but also as to how policy makers relied upon it.
Based upon a thorough review of the available public record, we determined that, in application, torture was used against detainees in many instances and across a wide range of theaters.
AMY GOODMAN: We’re going to continue now with Asa Hutchinson, the former Republican congress-member and former undersecretary of homeland security under President George W. Bush, speaking Monday about the findings of the bipartisan task force he co-chaired on detainee treatment. While the report focused largely on the Bush administration after 9/11, it also criticized a lack of transparency under President Obama. Again, Republican co-chair Asa Hutchinson.
ASA HUTCHINSON: And while our report is critical of the approval of interrogation techniques that ultimately led to U.S. personnel engaging in torture of detainees, the investigation was not an undertaking of partisan fault finding. Our conclusions about responsibility should be taken very simply as an effort to understand what happened at many levels of the U.S. policy making. There is no way of knowing how the government would have responded if a Democrat administration were in power at the time of the attacks. Indeed, our report is equally critical of the rendition-to-torture program, which began under President Clinton. And we question several actions of the current administration, as well. It should be noted that many of the corrective actions that—were first undertaken during the Bush administration, as well.
But the task force did conclude that the nation’s highest officials, after the 9/11 attack, approved actions for CIA and Defense [Department] personnel based upon legal guidance that has since been repudiated. The most important decision may have been to declare the Geneva Convention did not apply to al-Qaeda and Taliban captives in Afghanistan or Guantánamo. The administration never specified what rules would apply instead. The task force believes that U.S. defense intelligence professionals and service members in harm’s way need absolutely clear orders on the treatment of detainees, requiring at a minimum compliance with Common Article 3 of the Geneva Convention. This was not done. Civilian leaders and military commanders have an affirmative responsibility to assure that their subordinates comply with the laws of war. President Obama has committed to observe the Geneva Conventions through an executive order, but a future president could change it by the stroke of a pen.
AMY GOODMAN: [That was] Asa Hutchinson, former Republican congressman from Arkansas and undersecretary of the Department of Homeland Security under President George W. Bush, speaking Monday about the findings of the bipartisan Task Force on Detainee Treatment.
For more, we go to Washington, D.C., to Laura Pitter, counterterrorism adviser at Human Rights Watch. Welcome to Democracy Now!, Laura. Can you talk about the significance of this report? And the man who’s delivering the findings, Asa Hutchinson, was just in the news as an NRA consultant, pushing armed guards in the schools. He is President Bush’s administration official, the undersecretary of homeland security.
LAURA PITTER: Yeah, the report is very significant for the fact that this was a bipartisan commission that included individuals both on the Republican and Democratic side with high levels of extensive national security experience. And they intended to look at the record objectively, without any preconceived notions. And they ultimately came to the conclusion that the U.S. engaged in torture, and they found that the evidence was indisputable. And they found this without reservation. So it’s very significant, because, as you know, many of the former Bush administration officials who were in charge of authorizing the abuse and other senior-level intelligence officials who were involved in implementing the abuse have denied that what the U.S. did in its name to hundreds of detainees in U.S. custody was torture. So, really, this commission should put those denials to rest. It clearly was—it was torture, and this commission found so.
NERMEEN SHAIKH: Laura Pitter, can you explain a little how the task force was put together? They were apparently 11 members, and they represented quite a wide range from within the Bush administration—is that correct?—and subsequent administrations.
AMY GOODMAN: And who chose them?
LAURA PITTER: Well, The Constitution Project was in charge of putting the panel together, and they tried to get people—you know, very senior-level people who had national security experience, both former congress-people in the judiciary, medical experts, from both sides of the political spectrum. And the objective was, because it was clear that Congress was unwilling to look into a commission of inquiry, to analyze what had happened historically post-9/11. There was an initiative… for a commission of inquiry, sort of like a truth commission, [but] that was not accepted in Congress, and then Obama clearly said that it was more important for him to look forward than to look back. They felt like it was important to all Americans that they analyze what the U.S. did post-9/11 to the detainees in custody, given the widespread level of abuse and the authorization at the most senior levels. They felt like it was an important part to preserve U.S., you know, moral credibility in the world. And so, that’s how the commission started.
AMY GOODMAN: Yet, President Obama disagrees with this? He—
LAURA PITTER: I don’t know if there has been a reaction.
AMY GOODMAN: He disagrees—well, he would not—he would not commission the study. He did not want this to move forward, so that’s why it’s—is that right? Can you talk about the progression of how this happened, starting with Senator Leahy, head of judiciary?
LAURA PITTER: So, Senator Leahy introduced legislation for a commission of inquiry, sort of like a truth commission, and Congress did not accept that. And then the Obama administration had made very clear that it was more important to them to look forward rather than to look backward. So they also chose not to do any kind of thorough investigation of the wide-scale abuse that was—you know, it was overwhelming evidence of serious and widespread abuse. So, that is why this commission gathered and decided to look into it from a bipartisan perspective and, you know, come to its conclusions, without any preconceived notions about what those conclusions might be.
AMY GOODMAN: The Task Force on Detainee Treatment also condemned the force-feeding of prisoners who go on hunger strike as a form of protest, a situation that’s right now underway at Guantánamo. It’s believed the majority of prisoners are on hunger strike. This is Dr. Gerald Thomson, a professor of medicine emeritus at Columbia University, former president of the American College of Physicians.
DR. GERALD THOMSON: We do not believe that force-feeding should be an approach to the hunger strike. If you can imagine being a detainee and using refusal to eat as a form of protest, and then you are forced to eat, forced physically to eat by being strapped into a specially made chair, and restrained—having restraints put on your limbs, your arms, your legs, your body, your head, so that you cannot move, having a tube inserted into your throat that extends into your stomach, and you’re trying to resist that with the only muscles that are free in your throat—pain, discomfort, obviously. But in addition to that, food is then forced, in a liquid form, into your stomach. You’re kept in the chair for at least two hours, usually more than two hours, to prevent you from vomiting and undermining the force-feeding. You can’t go to the bathroom during that time. Your dignity is taken away. The World Medical Association and international officials have clearly identified that process as cruel, inhuman and degrading treatment. And whatever the—given the level of brutality, it could extend to torture.
AMY GOODMAN: That is the Task Force on Detainee Treatment member Dr. Gerald Thomson, professor of medicine emeritus at Columbia University, former president of the American College of Physicians. Laura Pitter, this is particularly relevant now, as it does look like most of the 166 prisoners at Guantánamo—though the administration says fewer, most, it looks like, are on hunger strike right now.
LAURA PITTER: Yes. I mean, his testimony, his findings were very, you know, thoroughly looked into and very dramatic. And indeed, force-feeding can amount—it is abuse, and it can amount to torture. And it is ongoing at Guantánamo now, basically because the detainees have resorted to these really drastic measures because food going into their bodies is really the one thing that they have control over anymore. They’ve been detained now there for more than 10 years, most of them. And it’s unclear—there doesn’t seem to be any political will on the part of the administration to transfer detainees out, even though more than half of them have been cleared for release and determined not a security threat to the United States. So, it’s—you know, they’ve resorted to these desperate measures, and, you know, the U.S. is force-feeding many of the prisoners there at this point.
AMY GOODMAN: In 2011, we spoke to independent journalist and Democracy Now! correspondent Jeremy Scahill. He had just returned from Somalia. The report cites him extensively. Jeremy explained how he discovered a secret CIA facility being used for counterterrorism, as well as an underground prison in the Somali capital of Mogadishu. We’re going to play a clip of what he said.
JEREMY SCAHILL: And when we arrived in Mogadishu, within days, we discovered that the CIA had just finished construction of a pretty massive compound at the Aden Adde International Airport in Mogadishu. And the compound, which is not even hidden in plain sight—it’s just in plain sight—looks like a gated community. It has about a dozen buildings inside of it, brand new. It’s a walled compound with guard posts at all of its—at each of its four corners. It’s right on the banks of the Indian Ocean. And then next to it there are six or eight small hangars. And the CIA also has its own aircraft there.
I was able to track down a senior Somali intelligence official and began the process of investigating this facility. And what I discovered is that the CIA is training what was described to me as an indigenous strike force, members of Somalia’s National Security Agency, its intelligence division, to conduct operations in the areas controlled by the Shabab in Mogadishu. And, you know, the situation is very fluid, but the Shabab control a huge portion of Mogadishu. And the internationally recognized government controls about 30 square miles of territory. When I asked a very prominent businessman who works in the port of Mogadishu who controls the rest, he said the Shabab government, and referred to it as such.
AMY GOODMAN: That’s Jeremy Scahill. His book Dirty Wars: The World Is a Battlefield is coming out next week. You can watch our hour interview with him on next Tuesday. But that report of Jeremy’s is cited extensively by The Constitution Project task force report. Laura Pitter, if you can talk about that and what it means for the Obama administration today?
LAURA PITTER: Well, I believe it’s discussed in the context of renditions. And the Obama administration has not repudiated the use of renditions, which is the illegal transfer from—of one person from one country to another. It has banned the use of torture, which is obviously good, but it’s done so by an executive order, and that executive order could be revoked by a future administration. So, you know, what the—all of what is going on, if renditions are in fact happening, is still classified, and, you know, we don’t really have any idea of how much the U.S. is using the practice of rendition or to what—in what context they’re doing so.
NERMEEN SHAIKH: Well, Laura Pitter, the report is especially critical of the Obama administration for what it calls its, quote, “excessive secrecy.” Could you elaborate on that?
LAURA PITTER: Yeah, I mean, the U.S. has basically—it’s over-classified everything related to the torture program. Detainees are not allowed to talk about what went on in CIA custody, what happened to them, their treatment. It’s all—it’s all classified. So it makes it very difficult, for example, for them to communicate with their lawyers and with the outside world about what happened to them. Also, lots of information about what went on in the program is still classified. There’s a 6,000-page report that was put together by the Senate Select Committee on Intelligence that comes to the conclusion that the use of enhanced interrogation techniques was not effective. We know what the conclusion of the report is, but the actual basis for that conclusion is still classified. And there’s an enormous amount of information that the administration continues to protect.
For example, many of the detainees who were in U.S. custody have tried to bring suit in U.S. courts for the abuse, but the Obama administration has invoked the state security, the national security grounds for preventing information about the torture coming out in that litigation. So, it’s called the state secrets doctrine. So, this Constitution Project called for the Obama administration to stop using that doctrine to prevent victims of the abuse from bringing their claims in U.S. court, because under the Convention Against Torture, to which the U.S. is a signatory—and it’s also incorporated in domestic law—there is an obligation to provide redress or have an avenue for redress for victims. And that does not currently exist. Not any detainee who’s been in U.S. custody and was abused in U.S. custody has been able to bring a claim, for that reason. So, that is one of the recommendations of The Constitution Project, that there certainly is information that can and should be classified, such as certain information that identifies individuals or legitimate sources and methods, but torture is not a legitimate source or method that needs to be protected, and therefore the administration should stop trying to prevent information about the torture program from coming out in the public domain.
AMY GOODMAN: This is the Republican co-chair of the Task Force on Detainee Treatment again, Asa Hutchinson, the former Undersecretary of Homeland Security under Bush, speaking about the findings regarding the use of torture during interrogations.
ASA HUTCHINSON: The task force believes it is important to recognize that—that is—that to say torture is ineffective does not require a demonstration that it never works. A person subjected to torture might well divulge useful information. Nor does the fact that it may sometimes yield legitimate information justify its use. What values do America stand for? That’s the ultimate question. But in addition to the very real legal and moral objections to its use, torture often produces false information, and it is difficult and time-consuming for interrogators and analysts to distinguish what may be true and usable from that which is false and misleading. Also, conventional, lawful interrogation methods have proven to be successful whenever the United States uses them throughout history—and I have seen this in law enforcement, as well. We’ve seen no evidence in the public record that the traditional means of interrogation would not have yielded the necessary intelligence following the attacks of 9/11.
AMY GOODMAN: And this is task force member retired Brigadier General David Irvine, a former strategic intelligence officer and Army instructor in prisoner interrogation. He said the CIA’s own logs demonstrate the failure of torture to elicit useful information.
BRIG. GEN. DAVID IRVINE: Public record strongly suggests that there was no useful information gained from ‘going to the dark side’ that saved the hundreds of thousands or tens of thousands of lives that have been claimed. There are many instances in that public record to support the notion that we have been badly misled by false confessions that have been derived from brutal interrogations. And unfortunately, it is a fact that people—people will just say whatever they think needs to be said if the pain becomes more than they can bear. Other people are so immune to pain that they will die before they will reveal what an interrogator may wish to know.
I’ll just say, in conclusion, that in 2001 the United States had had a great deal of experience with tactical and strategic interrogations. We had been very successful over a long period of time in learning how to do this and do it very, very well. Unfortunately, when the policies were developed that led us to ‘the dark side,’ many of those who were involved in formulating those policies had no experience with interrogation, had no experience with law enforcement, had no experience with the military, in how these matters are approached. One of the most successful FBI interrogators prior to 2001 was a guy named Joe Navarro. And Joe is noted for having said—and he was probably one of the handful of strategic interrogators qualified to interrogate and debrief a high-value al-Qaeda prisoner. But Joe said, “I only need three things. If you’ll give me three things, I will get whatever someone has to say, and I will do it without breaking the law. First of all, I need a quiet room. Second, I want to know what the rules are, because I don’t want to get in trouble. And third, I need enough time to become that person’s best and only friend. And if you give me those three conditions, I will get whatever that person has to say, and I will get it effectively and quickly and safely and within the terms of the law.” So, we can do it well when we want to. We need to do more, looking at our history, to remind us what worked and why it worked, and not resort to what may seem at the time to be expedient, clever, or necessary.
AMY GOODMAN: That’s task force member retired Brigadier General David Irvine, former strategic intelligence officer, Army instructor in prisoner interrogation.
NERMEEN SHAIKH: Laura Pitter, very quickly, before we conclude, I wanted to ask you—you mentioned the Senate Intelligence Committee’s 6,000-page report, and some have suggested that this Constitution Project, the revelations in this report, will put pressure on the administration to finally declassify the Senate Intelligence Committee report. Could you comment on that very quickly, in 30 seconds?
LAURA PITTER: Yes, I mean, I think it will. There’s enormous pressure now, given all the public…information that is in the public domain. I mean, The Constitution Project didn’t have subpoena power and didn’t have access to classified information, and they were still able to come to the conclusions they did. But there’s an enormous amount of information that is still classified that we don’t know, that’s important to get out in the public record. So, I do think that it will put pressure on the administration to do so.
AMY GOODMAN: Laura Pitter, we want to thank you for being with us, counterterrorism adviser at Human Rights Watch.
Laura Pitter, a counterterrorism adviser at Human Rights Watch, was interviewed by Amy Goodman of Democracy Now! on Wednesday, April 17, 2013. Democracy Now! is a daily independent global news hour accessible online and on radio stations across North America. The foregoing interview is reprinted in Artsforum with the permission of Democracy Now! — from a transcript provided by that organization.
The original content of this program is licensed under a “Creative Commons Attribution Noncommercial-No Derivative Works 3.0 United States License.”
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Capitalism in Crisis:
Urging an End to Austerity, a New Jobs Program, & the Democratizing of Work
American economist Richard D. Wolff interviewed by Amy Goodman of Democracy Now! on Monday, March 25, 2013.
As Washington lawmakers push new austerity measures, economist Richard Wolff calls for a radical restructuring of the U.S. economic and financial systems. We talk about the $85 billion budget cuts as part of “the Sequester,” banks ‘too big to fail,’ Congress’ failure to learn the lessons of the 2008 economic collapse, and Wolff’s new book, “Democracy at Work: A Cure for Capitalism” [Haymarket Books, 2012]. Wolff also gives Fox News host Bill O’Reilly a lesson in economics 101.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. Our guest is Richard Wolff, a professor emeritus at the University of Massachusetts, Amherst, now at New School University. [Richard Wolff is the] author of a number of books, including Democracy at Work: A Cure for Capitalism.
I want to talk about austerity here at home. This is House Speaker John Boehner speaking last month defending the $85 billion budget sequester cuts that took effect on March 1st .
HOUSE SPEAKER JOHN BOEHNER: The American people know, the president gets more money, they’re just going to spend it. And the fact is, is that he’s gotten his tax hikes. It’s time to focus on the real problem here in Washington, and that is spending.
AMY GOODMAN: Professor Richard Wolff, your response? And also, that the Obama administration was warning catastrophe if sequestration took place. It took place.
RICHARD WOLFF: Well, it’s a stunning comment on our dysfunctional government built on top of a dysfunctional economy. Here we are in the middle of a crisis. We have millions of people without work, millions of people losing their homes, an economy that doesn’t work for the vast majority. The United States government is one of the major customers for goods and services in America. Sequestration is simply a cutback in government spending. It doesn’t take rocket science to understand that if the government, as the largest single buyer of goods and services, cuts back on the goods and services it buys, that means companies across America will sell less, and they’ll have less need of workers, and they will lay off workers. So, this is an act that worsens an unemployment that is already severe.
If you put that together with the tax increase on January 1st—and let me say a word about that. We heard a lot of public debate about taxing rich people, not taxing rich people, Republicans and Democrats, but the tax on the wealthy is small compared to the tax on the middle and lower incomes that went up on January 1st. When we raised the payroll tax here in America from 4.2 to 6.2 percent, we raised over $125 billion—huge amount of money, much more than was raised by taxing the rich—and we savaged the middle- and lower-income groups in America, those that in the presidential election both candidates had sworn to save and support. We attacked them, thereby limiting their capacity to buy goods and services because we taxed them more.
You put together the taxing of the middle and lower incomes with the cutbacks of government spending, and you’re going to do what every European country that has imposed austerity has already discovered: You’re making the problem worse. So with all the homilies that Mr. Boehner can put out there about how spending is a problem, this abstract idea doesn’t change the fact you’re making the economic conditions of the mass of people worse by these austerity steps, not better. And that ought to be put as the fire burning at the feet of politicians, so they stop talking these abstractions and deal with the reality of what they’re doing.
AMY GOODMAN: So what do you think needs to be done?
RICHARD WOLFF: A radical change in the policies. And I think it has to go far beyond simply reversing this austerity program, which, again, just for a word about history, back in the 1930s, the last time we had a breakdown of our capitalist system like this, we didn’t have austerity, we didn’t have cutbacks. We had the opposite. Roosevelt, in the middle of the ’30s, created the Social Security system, went to everybody over 65 and said, “I’m going to give you a check for the rest of your life.” He created the unemployment compensation system, giving all the unemployed for the first time checks every week for a year or two. And he created a public employment program and hired millions of workers. It’s the opposite of austerity. So any politician who says, “We must do this, because there’s no option,” has forgotten even the American history of not that long ago.
So, the first thing I would do is go in that direction—not austerity, but its opposite. But I want to go further, because I think our problem is deeper. This crisis wasn’t supposed to happen. When it happened, it wasn’t supposed to last a long time. All of that has been proven false. The problems run deep. And I think what we have to do, and what that book tries to do, is to talk about reorganizing our economy so that for the first time we can say we’re not only going to get out of this crisis, we’re taking the kinds of steps that can prevent us from having them over and over again as our unstable business-cycle-ridden economy keeps imposing on us. So, for me, it’s the more profound change that we finally have to face, painful as it is. After 50 years of a country unwilling to face these questions, I think we need basic change. And that’s what I spend most of my time stressing.
AMY GOODMAN: Before we talk about the basic change, “democracy at work,” as you put it—
RICHARD WOLFF: Right.
AMY GOODMAN : —what could Obama do without congressional support right now?
RICHARD WOLFF: Well, I think, in many ways, he could initiate a public employment program. I think it’s long overdue that he find all the ways available to him to say what Roosevelt said—and not that Roosevelt did everything correctly, and not that he’s a genius or any of that, but to take some lessons from those people in our country before who took steps that were successful.
AMY GOODMAN: I mean Roosevelt didn’t plan on doing this when he first took office.
RICHARD WOLFF: Absolutely. He had pressure from below. The CIO, the biggest union-organizing drive in American history, never had anything that successful before.
AMY GOODMAN: As in AFL-CIO.
RICHARD WOLFF: That’s right. And with the socialist and communist parties, who were strong at that time, working with them, they organized millions of Americans into unions who had never joined a union before, and they pushed from below in a very powerful way. And they changed Mr. Roosevelt, showing that politicians, if subject to pressure from below, can change—same lesson that Cyprus has just taught us yet again. So, my response is: Learn from that. Roosevelt went on the radio to the American people and said, basically, “If the private sector either cannot or will not provide work for the millions of Americans that need and want to work, then it’s my job as president to do it.” And he did it.
And I think Mr. Obama could and should overcome whatever has made him hesitate. We in this country not only don’t have a federal employment program, the Republicans and Democrats haven’t even put it on the floor to debate it as an important issue, even though it comes out of our own history. So I would say, put us—put our people to work. They want to work. The Federal Reserve says 20 percent of our tools, equipment, factory and office space is sitting idle, unused. So we have the people who want to work; we have the tools, equipment and raw materials for them to work with. And lord knows we need the wealth they could produce. Put them to work, and make it a national issue that that happen.
AMY GOODMAN: Where does the money come from?
RICHARD WOLFF: Well, Roosevelt went to the wealthy, and he went to the corporations, and he said to them, “You must give me the money to take care of the mass of people, because if you don’t, we’re going to have a catastrophe in this country. We’re going to have a social revolution.” My argument is, let’s go back to the same tax rates that Roosevelt imposed, or at least in that neighborhood, which is much higher on wealthy people and much higher on corporations than we have today. That’s what he did. That’s how he funded it.
And in case our politicians are worried, let’s remind them: Mr. Roosevelt, who took those daring steps, was re-elected to be president four consecutive times, the most popular president in American history. It’s not a dead-end political decision. It’s the best decision a president could make to leave his legacy in history, that, we are told, our presidents care so much about.
AMY GOODMAN: Again, before we talk about “democracy at work,” I wanted to go to a recent hearing in Washington. Executives with the banking giant JPMorgan Chase appeared before a Senate panel earlier this month to answer questions around so-called “London Whale trades” that cost the bank more than $6 billion and derailed financial markets worldwide. This is Arizona Republican Senator John McCain criticizing JPMorgan’s actions.
SEN. JOHN McCAIN: JPMorgan completely disregarded risk limits and stonewalled federal regulators. It is unsettling that a group of traders made reckless decisions with federally insured money and that all of this was done with the full awareness of top officials at JPMorgan. This bank appears to have entertained—indeed, embraced—the idea that it was, quote, “too big to fail.”
AMY GOODMAN: Ashley Bacon, JPMorgan’s interim chief risk officer, testified at the same hearing.
ASHLEY BACON: I don’t think it is too big to fail. I think there’s further work that needs to be done to demonstrate and document that, and it’s in process. I’m not leading that process or deeply involved in it, but I think it is—it’s something that needs to be demonstrated to everybody’s satisfaction.
AMY GOODMAN: That was Ashley Bacon, JPMorgan’s interim chief risk officer. Can you explain what took place here and what is happening?
RICHARD WOLFF: Yes. On the question of “too big to fail,” there really isn’t much to say. In 2008, our banks failed—all of them—the way the Cyprus banks failed and for very similar reasons. They took in a lot of depositors’ money, and they made risky bets they shouldn’t have made, and they failed, and so they didn’t have the money to honor their obligations, and they turned to the government for a bailout. And when the government hesitated, because it’s public money to bail out a privately failed bank, they were told, in another kind of blackmail, “We’re too big to fail. If you don’t bail us out, we will collapse and take the entire economy with us.” And that was a persuasive argument. Particularly after they allowed Lehman Brothers to fail and that nearly did take the economy with it, that was a convincing argument.
You would have thought they had then learned the lesson about the problem of a too-big-to-fail financial institution. If you thought that, you would have been wrong, because the same banks that were too big to fail in 2008 are, all of them, bigger today. So we didn’t learn the lesson. We didn’t break up the banks. We didn’t limit, control their growth. They’re bigger now than they were then. And in a sense, maybe shame on them the first time, but having allowed this to happen, it’s shame on us.
Number two, we seem to need, as a nation, to believe that we have the power to control, limit or regulate, whether it’s the Glass-Steagall Act that came out of our disaster of the 1930s or the Dodd-Frank Act, which came out of the disaster that started in 2008. We seem to want to believe we can leave in place private banks, no matter how big they are, and hedge them about with regulations. The proof of the “Whale trades” in London, the proof of everything we know, is that these banks have the money, the staff, the resources to work their way around the regulations at least as fast as we impose them on them. That’s what these hearings fundamentally show. They can make trades that are too risky. They can lose wild amounts of money. They can turn to the government and demand to be helped and bailed out each time. And they get it. We are telling them, in a classic example, “Look, do whatever you want. You don’t have any risk of fundamental failure and punishment.” Regulation doesn’t work, because we believe in place an entity, a large corporation, with the money and the incentives to get around it.
AMY GOODMAN: Interestingly, Jamie Dimon, the head of JPMorgan Chase, did not testify. He was brought before the Senate, what, about last June, where the senators were asking him for advice. And then, when you looked at the senators on the Senate committee and how much money JPMorgan Chase had given each of them, we’re talking about millions of dollars went to many of them.
RICHARD WOLFF: When I say that the big corporations, particularly the banks, have the resources and the incentives, I’m being polite. Yeah, part of the resources are going into literally making sure that the political regulator is a good friend and understands the complexities. In simple English, they are buying their way into the situation we watch, which is: “We will pretend to be regretful. You will pretend to be protecting the public. You will make regulations that we help you write so that we can get around them.” It is something that ought not to be allowed to continue, because we’re living the economic crisis that comes from that way of doing business.
AMY GOODMAN: What lessons have been learned since 2008? And today, could the U.S. see the same situation as Cyprus?
RICHARD WOLFF: Absolutely. We have banks that are literally telling us, because we know from our controls that they are trying, even, to regenerate it. They’re trying to get people to borrow more money again. We’re not changing the wage structure of America, which means that Americans are required to go into debt to supplement their wages. You know, the irony is, we are trying, in the language of some of these folks, to kickstart our economy, to get it going again. But the problem is, our economy was a train heading into a stone wall in the first years of this century, and if we get our economy going again, without fundamental changes, what we’re doing is putting that same train back on the track heading towards the same wall. Cyprus shows us what’s happening.
But we don’t have to take just small countries. Take Great Britain, our classic ally. Their economy is now in the second or, in some people’s minds, the third recession within the crisis since 2007. They are following an austerity problem—process exactly like that supported by Mr. Boehner, and the economic downturn in Great Britain is catastrophic for that society. And so, we have this image of a future for us, if we don’t make fundamental change, but everyone wants to put it away and pretend that we can let it go by itself or a few regulations will solve the problem. They haven’t. They’re not doing it now elsewhere. That’s not a strategy we should pursue in this country, either.
AMY GOODMAN: We continue with Richard Wolff, professor emeritus of economics at University of Massachusetts, Amherst, visiting professor at New School University here in New York, does a weekly program on WBAI in New York called Economic Update every Saturday at noon. His latest book is Democracy at Work: A Cure for Capitalism. So what exactly do you mean by this?
RICHARD WOLFF: What I mean is a change in the enterprises that produce the goods and services we all depend on and provide the jobs we all need and want. I think those have to be, in a fundamental way, democratized. So let me begin in that way.
We live in a country that says it goes to war around the world to bring democracy and that its central, most important political value is democracy. If you believe that—and I am a fervent supporter of democracy, and obviously you are—you’ve named your program that way—then we ought to have democracy in the place where we as adults spend most of our time. Five out of seven days we go to work. We walk into a place where we use our brains and our muscles eight or more hours, five out of seven days. If democracy is an important value, it ought to be right there, first and foremost. But we don’t. We basically have a situation where, for most of us, we go to work in a place where the decisions that are made are made by a tiny group of people. The major shareholders who own the block of shares in our system select a board of directors, 15 to 20 people, and they make the basic decisions: what to produce, how to produce it, where to produce it, and what to do with the profits. The rest of us must live with the results of that decision.
So if that tiny group of people make a decision to close the factory in Cincinnati or the office in Atlanta and move to Shanghai, the chips fall where they may. If they decide to use a toxic technology that’s not good for the air and water but is good for the profits, they do, we live with the results. And when they decide to take the profits of their business and to give enormous pay packages to a handful of top executives and big dividend payouts to their shareholders, which of course they do, since they’re in a position to do it, and the rest of us suddenly have to take out absurd debts to get our kids through college, then that’s the inequality of income and wealth that we have in America.
So, I look at this decision-making apparatus, I say, “Why are we surprised that they make the decisions the way we do—they do?” We all live with the results, and we have no say in how those decisions are made. It’s not democratic. That’s the first thing. But the second thing is, we’re now in five years of economic crisis that indicate that way of organizing the decisions doesn’t work for the mass of people. It works for them. The stock market’s back. The profits of big corporations are back—surprise, surprise—given who makes the decisions. But we are left.
And so, for me, the solution is, let’s face this. Let’s build an option, a real choice for Americans, between working in a non-democratic, top-down-organized capitalist enterprise or in what, for lack of a better term, we can call “cooperatives,” workplaces that are organized democratically. I think we’ll have less inequality of income, we will have less pollution of our environment, and we’ll have less loss of jobs out of the country, if those decisions were made by the people, as they should have been from the beginning, who will not make the kinds of decisions that got us into the mess of economic crisis that we’re in now.
AMY GOODMAN: In June, you wrote a piece in The Guardian called “Yes, There is an Alternative to Capitalism: Mondragon Shows the Way,” [about] Mondragon, Spain’s renowned co-op [that is, the Mondragon Cooperative Corporation in Spain’s Basque Country], where all enterprise is owned and directed by co-op members. At the Green Party’s convention last year, the keynote speaker, Gar Alperovitz, said the Mondragon model is being replicated here in the United States. I want to just turn to a clip of what Gar Alperovitz said, the professor of political economy at the University of Maryland.
GAR ALPEROVITZ: So, in Ohio, the idea of worker ownership is a bigger idea. Lots of people understand it. And in Cleveland, building on the Mondragon model—some of you know about the Mondragon model—and other ideas, there are a series of worker-owned, integrated co-ops in Cleveland in a neighborhood where the average income is $18,000 per family. And they have got these co-ops, not just standing alone, but linked together with a nonprofit corporation and a revolving fund. The idea is to build the community and worker ownership, not just make a couple workers richer, to say the least, not rich, but to build a whole community, and to use the purchasing power of hospitals and universities—tax money in there—Medicare, Medicaid, education money, buy from these guys, and build the community. That model—and it’s the greenest for—one of the things is the greenest laundry in that part of the country, that uses about a third of the heat and about a third of the electricity and about a third of the water. They’re on track now to put in more solar capacity that exists—one of the other worker-owned companies—that exists in the entire state of Ohio. These are not little, dinky co-ops.
AMY GOODMAN: That was Gar Alperovitz talking about the Mondragon model here. And when we were in Spain, Democracy Now! went to Mondragon and interviewed one of the cooperative members, and we’ll link to that at democracynow.org But, Richard Wolff, talk about that model and what’s happening here.
RICHARD WOLFF: Well, the model of Mondragon is so interesting, not only because it’s a real co-op, where the workers make the decisions—what to produce, how, where, what to do with the profits. And just to mention one of their achievements, they have a rule that the highest-paid worker cannot get more than a maximum of eight times the lowest. In our society, it’s typical in our large corporations that the CEO gets 300 to 400 times what the lowest worker. So, for those of us that are interested in a less unequal society than what we have here in America, the lesson is, if you cooperatize your enterprise, that’s a sure route to get there. And we haven’t found any other route that is just as effective.
So, the importance of Mondragon is, they start in the middle of the 1950s with a Catholic priest, Father Arizmendi… with six workers in the north of Spain, desperately trying to overcome the unemployment there. And here we are over a half a century later. Having to compete with countless capitalist enterprises, they won that competition. Trying to grow, they have a growth record that would be the envy of any capitalist corporation. They went from six workers in 1956 to 120,000 workers today in Spain.
AMY GOODMAN: And they are making?
RICHARD WOLFF: And they are making everything. They make dishwashers. They make clothes washers. They raise rabbits on farms. They do high-tech research, together with General Motors and Microsoft as some of their partners there. They do an immense array. They’re really a family of 200 to 300 co-ops that are united within the Mondragon cooperative corporation. So they’ve shown the ability to grow. They’ve shown the ability to adapt. They’ve shown their competitive power. …They’ve shown all the different ways that a corporation can develop without a top-down hierarchical, undemocratic structure. So we don’t have to choose between effectiveness, growth, job, security, and a cooperative structure. The cooperative structure can be a way to get there.
Here in the United States, we have lots of such co-ops developing. There’s one even named after Father Arizmendi in California in the Bay Area. There are six Arizmendi bakeries and coffee shops that were set up on that model. They started with one; they’re now six. Hint: They’ve grown. And you can do this. And all over the United States, there are these efforts, often done by people who want a different kind of life. They want to be in charge of their own job. They want to have a sense of control and a sense that they’re not just a drone doing the work, but they’re part of the folks who design and direct. It brings out new capacities. It makes you… happier to go to work. It’s a more satisfying job life than you would otherwise have. So I think it recommends itself on all kinds of levels.
One other example, we can learn something from a country called Italy that we admire for its cuisine and its lovely countryside. They have a law there, passed in 1985, called the Marcora Law after the name of the legislator. Here’s what it does. It offers a choice to unemployed workers. You can take a dole every week, an unemployment check, the way we do in this country, or you have an option, an option B that we don’t have. If you get at least nine other workers—unemployed workers, like yourself–to make the following choice, here’s what you can get. As a lump sum, you can get your entire unemployment program of two years of checks in your hands right at the beginning; you have to have nine other workers or more, and you have to use that money as the start-up capital for a cooperative enterprise. The idea of the Italian government was, if we give workers this to set up a job and an enterprise, they will be much more committed to it than they would if they didn’t have that role.
AMY GOODMAN: How do they know they’ll do it?
RICHARD WOLFF: They don’t. But they know those workers have an incentive, because if they don’t make that work, they can’t go back and collect unemployment. That’s what they got. The government doesn’t spend much more money than it would have anyway, but it creates jobs, and it creates workers committed, because it’s their enterprise, to make that work as their personal solution and as a way not only for them to survive, but for the whole of the Italian society for the first time to see what it’s like to have an enterprise where you run the affair.
You know, here in America, we want to believe in freedom of choice. Let’s give our people freedom of choice. They can have the choice to go work in a top-down, capitalist enterprise—what we’re used to—but if we develop the alternative, really a program of co-ops around the country, then American young people and older people could say, “What would it be like to work there? Let’s see what that’s like.” And then we would have the choice we do not have in this country now.
AMY GOODMAN: Professor Wolff, before we end, I want to turn back to the crisis in Cyprus and relate it to what’s happening here. Bill O’Reilly of Fox News warned his audience last week that Cyprus and other European countries are facing economic hardships because they’re so-called “nanny states.”
BILL O’REILLY: Greece, Italy, Spain, Portugal, Ireland, now Cyprus, all broke. And other European nations are close. Why? Because they’re nanny states, and there are not enough workers to support all the entitlements these progressive paradises are handing out.
AMY GOODMAN: That’s Bill O’Reilly of Fox News. Richard?
RICHARD WOLFF: You know, he gets away with saying things which no undergraduate in the United States with a responsible economic professor could ever get away with. If you want to refer to things as nanny states, then the place you go in Europe is not the southern tier—Portugal, Spain, and Italy; the place you go are Germany and Scandinavia, because they provide more social services to their people than anybody else. And guess what: Not only are they not in trouble economically, they are the winners of the current situation. The unemployment rate in Germany is now below 5 percent. Ours is pushing between 7 and 8 percent. So, please, get your facts right, Mr. O’Reilly. The nanny state, you call it, the program of countries like Germany and Scandinavia, who tax their people heavily, by all means, but who provide them with social services that would be the envy of the United States—a national health program that takes care of you, whether you’re employed or not, and gives you proper healthcare. In France, for example, the law says when you go to work, you get five weeks’ paid vacation. That’s not an option; that’s the law. You get support when you’re a new parent for your child care and so forth. They provide services. And they are successful in Germany and Scandinavia, much more than we are in the United States and much more than those countries in the south.
So they’re not broken, the south, because they’re nanny states, since the nanny states, par excellence, are doing better than everyone. The actual truth of Mr. O’Reilly is the opposite of what he says. The more you do nanny state, the better off you are during a crisis and to minimize the cost of the crisis. That’s what the European economic situation actually teaches. He’s just making it up as he goes along to conform to an ideological position that is harder and harder for folks like him to sustain, so he has to reach further and further into fantasy.
AMY GOODMAN: In our last minute, other cures for capitalism, as you put it?
RICHARD WOLFF: Well, I think that there’s a set of fundamental reorganizations. When you have a private banking system in the United States, the way we did up until, say, the 1970s and ’80s, you had it in a position relative to the economy that made a certain sense. But over the last 30 and 40 years, for a whole host of reasons, we have made debt a central part of the economy. Today it is not unusual for a person who goes into a grocery store to get a bottle of water to use a credit card, basically to make a loan in order to buy that bottle of water. Everything that consumers do is now mediated by debt. Everything corporations do, and as we look around the world, the governments are in debt. Debt is everywhere. It has become the water we swim in, the air we breathe. That puts the banks in an unbelievably powerful position, because they’re the repository of the means to borrow. If we’re going to make an economy dependent on debt, we can’t leave the power to control that—
AMY GOODMAN: We have 10 seconds.
RICHARD WOLFF: —in the private hands of banks. Either we don’t become a debt-ridden country, or we make borrowing and lending a social program. We can’t allow private banking. It doesn’t work. It needs to be changed.
AMY GOODMAN: Richard Wolff, I want to thank you for being with us. If you’d like a copy of today’s show, you can go to our website at democracynow.org. Richard Wolff is professor emeritus at University of Massachusetts, teaches at New School University.
Economist Richard Wolff was interviewed by Amy Goodman of Democracy Now! on Monday, March 25, 2013. Democracy Now! is a daily independent global news hour accessible online and on radio stations across North America. The foregoing interview is reprinted in Artsforum with the permission of Democracy Now!, from a transcript provided by that organization.
Visit Democracy Now! at http://www.democracynow.org/
The Iraq We Left Behind:
Welcome to the World’s Next Failed State
By Ned Parker
Reprinted with permission of Foreign Affairs
Nine years* after U.S. troops toppled Saddam Hussein, Iraq, has become something close to a failed state. The only hope Iraq has of escaping a future of war or corrupt, authoritarian rule is for the United States and the international community to start pushing hard for power sharing and democracy. Washington has completely failed on this score. But U.S. officials must not stay silent in the face of illegal detentions and crackdowns on civil liberties; neither should they back away from the power-sharing agreements they helped sponsor for the sake of short-term political considerations. Even with U.S. soldiers gone from the country, the United States retains leverage over Iraq. It can and should, for example, threaten to keep Iraq locked in its so-called Chapter 7 status in the United Nations, which deprives Iraq of full sovereignty and requires it to make reparations payments to Kuwait. And it should warn Iraq that it will cancel the sale of U.S. ﬁghter jets, tanks, and surveillance equipment to the government unless it changes course. Iraq’s leaders need to know that the international community has “redlines,” and that secret prisons, the use of torture to extract confessions, and the harassment of democracy activists will not be tolerated. As for the danger of pushing Baghdad closer to Tehran, although Iran would gladly smother Iraq in a suffocating embrace, Iraq’s own tortuous history of war with its neighbor means that Iraq will continue to seek a relationship with the West in part to counterbalance Tehran.
Ned Parker was Edward R. Murrow Press Fellow at the Council on Foreign Relations. He was a correspondent for the Los Angeles Times in Iraq in 2007–11.
Originally published in the March/April 2012 issue of Foreign Affairs, (volume 91, no. 2), at page 94, and reprinted in toto in Artsforum with the permission of Foreign Affairs. What remains (above) is a brief précis of the article’s salient points. To read the entire article, visit Foreign Affairs (published by the Council on Foreign Relations) at: http://www.foreignaffairs.com/
* The article refers to the nine year period between the fall of Saddam Hussein in March/April 2003 and the publication of this article in March/April 2012.
© 2012 Council on Foreign Relations.
The Right to a Passport in Canadian Law
© By A.J. Arkelian
Although invoked in an effort to forestall extradition in the “Rauca” case, the implications of the mobility rights section of the Canadian Charter of Rights and Freedoms for passport law in this country have been neglected. (1) And yet, section 6(1) of the Charter, it will be submitted below, renders unconstitutional Canada’s existing passport regime on account of its basis in Crown prerogative.
Legal authority to issue passports is founded on the exercise of the Crown prerogative relating to foreign affairs. Certain legal tenets follow, namely: that passports are issued in the name of the Sovereign; that no person has a legal right to be issued a passport; that the Secretary of State for External Affairs in exercising the prerogative has complete discretion to refuse to issue or to revoke a passport; and that the latter discretion is not subject to judicial review.
Rules and procedure relating to passport administration currently are embodied in an Order in Council. (2) It is a nice question whether the very act of setting out these rules in writing in the Passport Order has had the effect of fettering the previously absolute executive discretion. Could the executive deviate from the terms of the Order? For policy reasons, such deviation seems unlikely without, at least, express authorization by an order of the Governor in Council. Whether or not the existing Passport Order is binding on the executive, it is clear that the executive retains the right under the prerogative to abolish or amend the Passport Order at any time and even, while passport law remains an emanation of the prerogative, to establish baldness as a ground for refusing a passport. (3) An argument that the Crown, by voluntarily fettering itself via the Passport Order, is estopped from abolishing those fetters seems unlikely to succeed. The most that can be contended is that the Crown must abide by those self-imposed fetters until it chooses to amend or abolish them.
Section 6(1) of the Charter provides that “every citizen of Canada has the right to enter, remain in and leave Canada.” The right thus recognized and guaranteed is subject neither to special qualification nor to the override provision of section 33. The only applicable limitation is the general one in section 1 which subjects Charter rights “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Binavince denies that even that limitation applies, asserting that the Passport Order “is made by way of subordinate legislation, and hence is not a ‘law’ within the meaning of section 1 so as to override the protection of section 6. (4) Unfortunately, the latter assertion is not elaborated and remains unconvincing. In general terms, a law made by Order-in-Council is as valid as legislation enacted by parliament and, therefore, would appear to be encompassed within the meaning of “law” in section 1; hence, a law enacted by Order-in-Council under the Crown prerogative can constitute a “reasonable limit” as prescribed by that section. Valid law can issue from the prerogative, and prerogative itself is not inherently suspect. (5) With regard to the specific issue of freedom of movement and passports, however, Crown prerogative does inevitably run foul of constitutionally protected rights–not just in its exercise, but in its primary assumptions. As long as passports fall within the purview of prerogative, access to them by individuals can by definition only be said to be a privilege, not a right. Yet, it will be argued that section 6(1) entails a right to travel abroad, and that entitlement to a passport is a necessary concomitant element therein.
There are really two separate questions: first, do the actual provisions of the Passport Order meet the test of the Charter and, second, does the very basis of the Order in prerogative contravene the Charter? As to the first question, Binavince argues that:
“A clear infringement of the right to leave Canada arises from a broadly drafted discretion conferred upon officials who may impose any restrictions, such as that in the Canadian Passport Order…. A passport is a travel document; without it, a person may not be able to leave Canada freely, or leave a foreign country to return to Canada. It is contended that the grounds provided in the Order are unreasonable, and too broadly and indiscriminately restrictive of the right to mobility.” (6)
It is submitted that, with one exception, the contents of the Passport Order might otherwise meet the “reasonable limits” test, but that they can never do so while they find their source and legitimacy in absolute executive discretion. This is the answer to the second question posed above. The source of the Passport Order in the prerogative has the effect of spoiling the content in a manner analogous to the “fruits of the poisonous tree” doctrine found elsewhere in the law. Prerogative does not constitute a poisonous tree in the abstract, but it does when planted in the soil of passport power. Absolute discretion over passports is by definition incompatible with constitutionally protected rights since it denies what the Charter requires–the right of a citizen to a passport. (7)
What is the meaning of the right guaranteed in section 6(1)? Those who would emasculate the Charter with narrow interpretations would contend that the section is merely a negative prohibition on entry and exit restrictions (for citizens) at Canada’s borders. According to that literalist view, the section concerns itself only with what happens at the instant of entry or departure from Canada and not with a larger freedom of movement or right to travel. If this view were to prevail, section 6(1) would indeed have no bearing on passport law; that is so because there is no requirement for a Canadian citizen to possess a passport to leave or enter Canada (provided that upon entry he can satisfy immigration authorities of his citizenship).
The literalist view of section 6(1) is unreal. Unless one’s destination is outer space or the high seas, one ordinarily leaves Canada to enter some other country. Nearly all such destinations are immediately and effectively precluded by absence of a Canadian passport. Section 6(1) involves more than exit and entry procedures at the Canadian border. If it did not, it would be like saying that people have the right to pass from their living room to a bare hall, without the key requisite to open any of the other doors of the house; while it might be possible to open one or two of the doors without such a key, most of the doors would be impassible. The right guaranteed in section 6(1) is a right to travel, and that means the right to travel to and from somewhere–nay, everywhere–else. It would be a feeble right indeed that enabled Canadians to embark from Canada without a passport but to disembark almost nowhere else. The constitutionally guaranteed freedom of movement is not just a negative prohibition on exit and entry restrictions for Canadians; it is a positive affirmation of a right to travel abroad. (8)
In interpreting the scope of the freedom of movement guaranteed by section 6(1) of the Charter, regard can usefully be given to the direction taken by the highest bodies in other common law countries with written constitutions. In a series of cases the United States Supreme Court has held that “the right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law.” (9) Freedom of movement is not specified in the United States Constitution, but it has been held to be subsumed by the right to liberty and, indeed, by other constitutional rights: “Freedom of travel is a constitutional liberty closely related to rights of free speech and association.” (10) Although the express reference to mobility rights in the Canadian Charter obviates the need of reading freedom of movement into other provisions of the Constitution, it is, nevertheless, quite possible to do so. For instance, the right to liberty under section 7, the right under section 9 not to be arbitrarily detained, the guarantee of equality before the law in the not yet in force section 15, and the guaranteed freedoms of assembly and association in section 2 may all, to a greater or lesser extent, imply or subsume freedom of movement.
The Supreme Court of India (11) has followed the United States example by holding that an individual has a right to travel abroad, and that a refusal by the government to issue him with a passport is a denial of the rights to personal liberty and equality before the law guaranteed by the Constitution of India. The government’s claim to discretion constituted a violation of that equality because the difference in treatment of persons rested solely on arbitrary selection of the executive. The mere existence of specific grounds for refusal in the Canadian Passport Order does not distinguish the Canadian and Indian situations–not as long as Canadian passport law derives from Crown prerogative.
Other jurisdictions clearly have had no difficulty in inferring a broad freedom of movement into their constitutions and concluding that it means the right to travel abroad; the same right is recognized in the United Nations Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights to which Canada is party. The same jurisdictions have reached the inescapable conclusion that as a result of international conventions and usage, a passport is a prerequisite condition for free travel, and, therefore, that freedom of movement subsumes a right to a passport.
Brief reference should be made to the logical link between citizenship law and passport law. The true function of a passport consists in providing prima facie evidence of citizenship and identity. Domestically, that function is ordinarily fulfilled by a birth certificate or certificate of citizenship. While travelling abroad, however, it is the passport and not the birth certificate or certificate of citizenship that is required by other states as evidence of citizenship and identity. The Citizenship Act (12) confers a right to Canadian citizenship both to natural-born persons, and, where stipulated conditions are fulfilled, to naturalized persons. Section 11 of the Act also confers a right to a certificate of citizenship, which the Secretary of State is obliged to issue to any citizen who applies therefor. Accordingly, an individual has a right both to citizenship and to the document that certifies that citizenship. But, it is the passport and not the certificate of citizenship that typically serves as evidence of citizenship while abroad. Therefore, consistency with the spirit, if not the letter, of the Citizenship Act requires that citizens be entitled to evidence of their citizenship suitable for use both domestically and abroad. While travelling abroad, the passport is the commonly accepted and usually required evidence of citizenship; by denying entitlement to passports, the existing passport law effectively denies citizens of proof of their citizenship while abroad–a result that is at the least anomalous vis-à-vis the Citizenship Act.
The nature and function of passports have evolved to the point where their true function today is to provide authoritative proof of citizenship and identity (and incidentally, “returnability”). (13) At one time, passports were saddled with much more ambitious baggage. The notorious case of William Joyce v. Director of Public Prosecutions (14) linked passports to the twin concepts of protection and allegiance. Joyce, a United States citizen living in Britain, obtained a British passport by misrepresenting his citizenship. Having then gone to Germany where he broadcast Nazi propaganda during the war, he was tried for treason in Britain and ultimately hanged. The House of Lords extended the principle that an alien only owes allegiance to the Crown while within its realm, to encompass aliens who, despite leaving Britain, possessed a British passport and thereby remained entitled to the protection of the British Crown and liable to give it allegiance. Without that duty of allegiance, of course, there could be no treason. The House of Lords characterized protection and allegiance as two sides of the same coin. In fact, allegiance is enforceable by the Crown through treason prosecution for its breach, but the citizen lacks a legally enforceable claim to diplomatic protection (or consular services) abroad by the Crown. How then could the Crown have owed Joyce, an alien, the duty of protection when he was in Germany? And why in turn should Joyce then have owed allegiance to the British Crown? Apart from the unusual circumstances and anomalous result of this case, it is worth noting that the majority decision admitted that possession of a passport by a citizen “does not increase the Sovereign’s duty of protection, though it will make his path easier. For him it serves as a voucher and means of identification.” (15) Clearly, for citizens (whatever one may say about aliens improperly in possession of a passport) the passport itself is creative of neither rights nor obligations. Those rights and obligations arise from citizenship, not from possession of a passport. Despite their misleading scrolls and flourishes, the guise of passports as a “communication from a Sovereign” with implications of protection and as a voucher of respectability or bona fides is now mere anachronism. The original linkage between passport issuance and the Crown’s prerogative right to conduct foreign relations has likewise lost whatever legitimacy it may once have possessed. Instead, the passport has become a “mere administrative device–providing evidence of status.” (16)
Freedom of movement is constitutionally guaranteed in Canada by section 6(1) of the Charter, and it means the right to travel abroad. The exercise of that right is severely impeded without a passport. So, the right to a passport is a requisite ancillary element in the right to travel abroad, but the existing passport regime based on absolute discretion denies the right to a passport and thereby infringes on freedom of movement. Accordingly, it is unconstitutional.
The British Section of the International Commission of Jurists (ICJ) has made recommendations for a new passport regime that are even more apt in the Canadian context on account of the constitutional guarantee of freedom of movement in the Charter with its implicit mandate that access to passports must be a right, not a privilege. The sine qua non of those recommendations is the early enactment, “as a basic constitutional necessity. . . of a brief statute conferring upon all citizens the legal right to a passport. The issue, refusal and withdrawal of passports would thus cease to be a prerogative matter, and one of unreviewable executive discretion.” (17) Disputes between the citizen and the issuing authority then would be determinable by the courts. With one exception, the existing grounds for refusal or revocation of passports presently appearing in the Passport Order could be transferred to the proposed new statute. In light of the cardinal importance of the right to travel, however, those grounds ought not to be supplemented in the statute by any new broad discretionary ground for refusal or revocation. The one existing ground that is probably unsuitable for transfer into statute is that which permits refusal or revocation of a passport if the applicant, “is indebted to the Crown for expense related to repatriation to Canada or for other consular financial assistance provided abroad at his request by the Government of Canada” (sec. 9(f)). The British Section of the ICJ has dealt eloquently with the same issue:
“While we would sympathize with any executive impatience over the possibility that a United Kingdom citizen might have to be repatriated more than once at public expense before he had repaid the cost of a previous repatriation, we see no compelling reason why the executive should not in this area be placed in the same position as any other creditor. Nor do we see any reason why any obligation to repatriate a defaulter should be assumed. The executive may commence proceedings against the debtor in the English courts on the same footing as anyone else to whom the defendant owes money and does not seem to us to need the additional and possibly drastic remedy of taking away the citizen’s right to travel.” (18)
Besides affirming in positive language the right to citizens to a passport, the proposed statute could also deal with some incidental matters. Obligations under international conventions (19) to provide travel documents to refugees and stateless persons could conveniently be put on a statutory footing. The proposed legislation would also be an appropriate place to deal with the deterrence of childnapping. In that regard, an undue restriction on access to passports appears in Ontario’s Act to Amend the Children’s Law Reform Act, 1977, which was proclaimed on October 1,1982. That Act seeks, in section 38, to prevent the unlawful removal of children from the province by, inter alia, providing for the enforced surrender of passports. Even if such a provision falls within provincial competence, it is apparent that the imprecise drafting of section 38 yields a result that exceeds what is necessary to effect its purpose. The goal clearly is to prevent the unlawful removal of children from the jurisdiction, but overly broad drafting catches other persons in the same net.
By providing for the seizure of the passports of parents, the Act effectively restricts the freedom of movement of the parents themselves, instead of merely preventing them from unlawfully removing their children. What is called for is not an outright seizure of a parent’s passport, but only deletion of the child’s name if it appears therein. To that end section 38(4) ought to be redrafted to establish a threefold mechanism: excision of the child’s name from the parent’s passport if it appears there (this excision would be performed by the Passport Office of the Department of External Affairs at the request of the court); surrender of the child’s passport, if any; and entry of the child’s name on the Passport Office’s “Passport Control List” to ensure that no new passport be issued for the child, and that the child’s name not be added to the passport of a parent. The mechanism described above could easily be incorporated into a federal passport act–a more suitable place for it than in provincial legislation.
Although it is one of the most overlooked sections of the Charter, section 6(1), by guaranteeing the freedom of movement, renders unconstitutional the basis of existing passport law in Crown prerogative, and obsolete the notion of absolute executive discretion over passport issuance and hence the right to travel.
A. J. ARKELIAN
Of the Ontario Bar
(1) Perhaps not surprisingly, greater attention has been given to the domestic mobility paragraphs of s. 6. See Emilio S. Binavince, “The Impact of the Mobility Rights: The Canadian Economic Union–A Boom or a Bust?,” (1982) 14 Ottawa L.R. 340.
(2) Canadian Passport Order, P.C. I981-1472, June 4, 1981. See also the Department of External Affairs Duties Order, P.C. 1981-1473, June 4, 1981, which “assigns the administration of all matters relating to Canadian passport to the Department of External Affairs.” The latter express assignment may have been intended to deal with an anomalous situation which had existed under the Passport Order’s predecessor Regulations, that is to say, the Canadian Passport Regulations, C.R.C. c. 641, promulgated in 1973. The now defunct Regulations, unlike the present Order, were said to be made pursuant to the Department of External Affairs Act, R.S.C. 1970, c. E-20. Whether that statute, which nowhere provides in express terms either for regulations in general or for passport administration in particular, was adequate authority for the old Regulations was always dubious.
(3) In practice, however, absolute discretionary power over passports appears to be circumscribed by policy considerations, chief among which is a desire to avoid offending public sensibilities and bringing the prerogative itself, as it pertains to passports, into disrepute. As a noted British commentator has written, “the aura of an absolute discretion hangs over the system, although there is little evidence of manifest abuse in practice”: G. Goodwin-Gill, International Law and the Movement of Persons between States 38 (Oxford, 1978). That commendable executive benevolence has not, however, led to the conclusion that absolute discretion ought to be formally foresworn and replaced by legal entitlement to passports.
(4) Supra note 1, at 358.
(5) As noted above, legal authority to issue passports is founded on the exercise of the Crown prerogative relating to foreign affairs. It is submitted that that linkage is anachronistic. No doubt there is room for executive discretion in other matters more convincingly related to foreign affairs. In such matters, it may be the exercise of the discretion in particular instances (e.g., cruise missile testing) that is challenged, rather than the existence of the discretion itself; in these cases, the constitutional question to be decided will involve the nexus between the specific exercise of discretion and the alleged violation of a right. In the case of passports, by contrast, it is the very existence of discretionary power, quite apart from its exercise, that must be challenged.
(6) Supra note 1, at 358.
(7) Binavince notes that “the Charter makes the fundamental assumption that governments are potential infringers, rather than protectors, of the mobility rights. Accordingly, the mobility rights provisions, like all provisions of the Charter, seek to create a relatively secure sphere of moral minimum for human dignity from which the powers of government are banned”: ibid., 347.
(8) It is true that any country that wishes to admit a Canadian without a passport may do so. However, only a tiny handful of countries will do so, the United States being the most notable example. The passport is not required to enter or leave Canada, but no one can go far without it. As well, while a citizen does not in theory require a passport for exit from or entry to Canada, as a practical matter passports are the most commonly used means of establishing citizenship and identity at the Canadian border.
(9) See, for instance: Kent v. Dulles, Sec. of State, 357 U.S. 116 (1957) (S.C.); Zemel v. Rusk, Sec. of State, 38 U.S. 1 (1964) (S.C.). Kent involved the denial of passports to the petitioners by the U.S. Secretary of State because of the alleged communistic beliefs and associations of the petitioners and their refusal to file affidavits concerning present or past membership in the Communist party. The Supreme Court held that the Secretary of State was not authorized to deny passports for these reasons. In Zemel, the Court reluctantly upheld “area restrictions” (restrictions against travel by U.S. citizens to specific foreign states) on the ground that they had foreign policy ramifications affecting all citizens and were matters of a political nature. The Court decided that the Secretary of State was statutorily authorized to refuse to validate passports of U.S. citizens for travel to Cuba and that the exercise of that authority was constitutionally permissible. It was noted that the fact that a liberty cannot be inhibited without due process of law does not mean that it can under no circumstances be inhibited. The majority in Zemel thus distinguished Kent without overruling its ratio; the minority argued that Kent applied.
(10) Aptheker v. Sec. of State, 376 U.S. 500 (1963) (S.C.).
(11) Sawhney v. Asslstant Passport Officer (1967), A.I.R. (S.C.), 1836.
(12) Citizenship Act, S.C. 1974-75-76, c. 108; amended by 1976-77, c. 52; 1977-78, c. 22.
(13) Returnability means evidence of the place to which a would-be entrant may be returned by the receiving state, should his presence there become undesirable for whatever reason.
(14) William Joyce v. Director of Public Prosecutions,  A.C. 347;  1 All E.R. 186 (H.L.).
(15) Ibid. 191.
(16) British Section of the International Commission of Jurists, Going Abroad: A Report on Passports 12 (1974).
(17) Ibid., 19.
(18) Ibid., 20.
(19) Refugees Convention (1951); Stateless Persons Convention (1954).
Le droit au passeport en droit canadien
La compétence relative à l’émission de passeports a été fondée sur l’exercice de la prérogative royale en matière d’affaires étrangères. Personne n’a été considérée comme étant titulaire du droit à un passeport, et la discrétion exécutive en matière de refus ou de révocation d’un passeport s’est avérée absolue et insusceptible de contrôle judiciaire.
D’après l’auteur, les libertés de circulation et d’établissement reconnues à l’article 6(1) de la Charte canadienne des droits et libertés rendront dorenavant ce régime inconstitutionnel. La liberté de circulation prévue à la Charte comprend le droit des canadiens de voyager à l’étranger–un droit qui ne saura être exercé que s’il existe un droit corollaire au passeport. Le fait que l’Ordonnance sur le passeport canadien ait sa source dans la prérogative a comme résultat d’en vicier le contenu.
Conséquemment, et pour des motifs de nécessité constitutionnelle, il s’avérerait opportun d’adopter une loi relative au passeport dans laquelle il serait reconnu un droit au passeport–dont la négation ne serait admise qu’en application régulière de la loi et en conformité avec l’égalité devant la loi et dont le respect pourrait être assure par voie de contrôle judiciaire.
Copyright © 1983 by A.J. Arkelian.
All rights reserved.
Originally published in The Canadian Yearbook of International Law, Vol. XXI, 1983.
See also: Arkelian, A.J. “Freedom of Movement of Persons Between States and Entitlement to Passports.” Saskatchewan Law Review, Vol. 49, No.1, 1984-85.
John Arkelian is a lawyer, an international relations specialist, and an author, who has advised the Government of Canada on matters on international law and constitutional law and represented Canada as a diplomat abroad.
Editor’s Note: The vital necessity of possessing a passport to exercise one’s constitutionally guaranteed right “to enter, remain in or leave Canada” is more critical than ever in the post-9/11 world — a world in which the ability of Canadians to enter the jurisdiction of even their closest neighbor and inseparable ally, the United States, without a passport, is now, alas, the stuff of memories. Despite that fact, the Government of Canada has neglected to remove the authority to issue and regulate passport from its obsolete source in Crown prerogative by enacting passport legislation. Thus, the arguments made in this scholarly paper remain as germane today as they were in 1983.