Thoughts – Tortured Principles of U.S. Governance and Security

Time for Action - Clock

“The use of torture compromises that which most distinguishes us from our enemies, our belief that all people, even captured enemies, possess basic human rights.”

            Senator John McCain(1)

This week the summary of the Senate Intelligence report on the U.S. Governments’ use of methods tantamount to torture was released.(2) The objective of this blog is to address the degree to which technology has changed domestic and international politics in the modern Information Age with profound implications upon human civil liberties. How does the topic of torture fit within that objective? In Part 2 of this research blog I argue that Governance, which is based on the rule of law, is a technology in of itself.(3) Part 2 concludes that misinterpretations of the Constitution and the notion of “positive rights” are the greatest threats to the United States and these threats come from the progressive legal scholar community.(4) In Part 1 I argue the U.S. National Security state is authoritarian in nature by using the framework provided in the paper “The Constitution in the National Surveillance State” written by profound Yale legal scholar Jack Balkin. The findings in the torture report only help solidify further my conclusion in Part 1 that the U.S. national security state is deeply authoritarian in nature. In fact I would argue that it cements it firmly in place.

Torture, like blanket and warrant less surveillance, as a method for collecting information must be justified on a legal basis. My research finds the rule of law itself is a technology, which is the basis for me bringing this important topic up on this blog focused on how technology is changing domestic and international politics. Perhaps it is serendipity, but it is very rare and good fortune to have fresh empirical evidence like this summary torture report to further illustrate my findings and conclusions. Let’s now illustrate.

If you want an excellent exposé on how attorneys in the national security state think about your security and liberty, I would highly recommend consuming this one-hour panel discussion at the 2014 Aspen Security Summit that featured the following people:

Raj De, General Counsel, National Security Agency
Robert Litt, General Counsel, Office of the Director of National Intelligence
John Rizzo, Former Deputy & Acting General Counsel, Central Intelligence Agency
Scott Charney, Corporate Vice President, Trustworthy Computing, Microsoft
MODERATOR: Greg Miller, National Security Correspondent, The Washington Post

Panel member John Rizzo was the first attorney in the CIA to be briefed on the Department of Justice memos on justifying torture. Those memos were drafted by Deputy Assistant Attorney General John Yoo and signed by then Assistant Attorney General Jay Bybee (Bybee is now a Federal Judge). John Yoo is now teaching at the University of California – Berkeley. A copy of those memos can be found here. The CIA asked for an updated legal opinion in 2005 and was signed by Steven Bradbury the Head of the Office of Legal Counsel. A copy of that opinion can be found here.

These memos advised the Central Intelligence Agency, the United States Department of Defense, and the President on the use of enhanced interrogation techniques: mental physical torment and coercion such as prolonged sleep deprivation, binding in stress positions, and water boarding, and stated such acts, widely regarded as torture, might be legally permissible under an expansive interpretation of presidential authority during times of war.

Since we now know the U.S. Government engages in warrantless surveillance and torture in order to collect information, listening to these government attorneys justify and argue how their positions are “legal” and “Justifiable” is a worthwhile exercise. It is worthwhile because it provides an ample demonstration of how the founding principles of our country get tortured in the name of governance and security. There are a lot of great quotes in the segment but a telling line came from John Rizzo when he says he never really saw himself working for the American people because his client was the CIA. This is an interesting argument by Rizzo but the other attorneys on the panel all nod in agreement with him. In a prior post I discussed the “Tools of Argument: How The Best Lawyers Think, Argue, and Win” and my own employment of them in this research project.  This book truly helps analytically parse arguments and statements being made by attorneys.

If unfamiliar with The Tools of Argument: How the Best Lawyers Think, Argue, and Win, written by Professor Joel Trachtman at The Fletcher School of Law and Diplomacy, I cannot recommend it enough regardless of your profession. I am not an attorney but employed these methods in my research efforts. Through that process I received an email from John Yoo responding to my arguments about “positive rights” and misinterpretations of the Constitution. Here is what Mr. Yoo emailed me on December 26, 2013:

Mr. Allsup:

Thank you for your message. I agree that misinterpreting the Constitution and positive rights are a real threat to the U.S. constitutional and political order. But I think that terrorism, Cyberwarfare, and WMD are more immediate threats from abroad. The change in our constitutional order is a longer-term problem that we can cure ourselves, while foreign threats are shorter-term challenges that we must address immediately.

Best wishes,

John Yoo(5)

Emanuel S. Heller Professor of Law, University of California at Berkeley

Knowing what we know now about U.S. torture and warrant less surveillance, John Yoo’s email to me is thought provoking. While his email acknowledges positive rights and misinterpretations of the Constitution as threats, he positions them as subordinate to foreign threats such as cyber warfare, Weapons of Mass Destruction, and terrorism. In a prior series of research posts on how the Judicial, Legislative, and Executive branches of the U.S. Government practice the religion of state power, I assert most politicians, agency bureaucrats, and government attorneys would think and feel the exact same way as Mr. Yoo.

Mr. Yoo also states that foreign threats are more of a short-term problem, while the Constitutional and Political order problems are longer term that we can fix ourselves. This is interesting and thought provoking coming from the man who drafted the initial torture memos. Lets illustrate:

Leading up to the release of the Senate Torture report U.S. politicians, retired national security leaders, and current national security leaders loudly expressed their concern the release of this report would inflame our enemies and open the U.S. to increased risk and future terrorist attacks.(6) U.S. Secretary of State John Kerry personally called the committee to express his concerns.(7) While I agree the release of the report may increase our risk and further upset our enemies; its not the report itself that will increase those risks, it is what the report says about what the U.S. Executive, Legislative, and Judicial Branches of government have done and, more importantly, what will not be done in response to what the report illustrates that will increase risks to U.S. citizens.  In short, the misinterpretations and positive rights notions used to approve torture and warrantless surveillance, have increased Americans’ short term and long term risks.

In response to terrorist attacks and threats, the U.S. Political class has used misinterpretations of our Constitution and the notion of positive rights as methods to institute national security programs aimed at protecting U.S. citizen’s security. Providing security and predictability in the pursuit of our individual manifest destiny is arguably the sole purpose of governance. That being said those misinterpretations and perversions of the notion of rights have now come at a very high cost to U.S. Citizens. In short, the U.S. government and national security apparatus are exponentially increasing the risks of its citizens through its policies and lack of correcting mistakes or holding anyone accountable when mistakes are exposed.

Noam Chomsky at MIT wrote a persuasive article published on July 1st, 2014, which argued that America’s Foreign Policy since World War II has primarily increased risks for U.S. Citizens. I agree with Mr. Chomsky’s point of view and the facts he put on display speak for themselves. While I agree with Mr. Chomsky, I believe there is more to the story he illustrated. What I am going to illustrate now is how the nature and velocity of risk is going to change and exponentially increase into an eventual full-blown crisis of confidence in U.S. Governance. Crisis’s of confidence in governance, throughout history, more often than not means an outbreak of war (Civil war or otherwise). War is a continuation of politics by other means according to Carl von Clausewitz.(8)  Our trust is very expensive; lets illustrate how expensive it is.

In a prior post I articulated what Obama and his NSA Review panel really think about our security and why, based on my research and email dialog with the NSA review panel members. The conclusion is they view our privacy as relatively unimportant to the work of government and national security. In a follow up post based on my research and email dialog with a broader set of legal scholars, I addressed what America’s top liberal legal scholars think about surveillance, governance, and their own ideas. The conclusion is that progressive liberal legal scholars view our privacy as relatively unimportant to the work of government, national security, and do not appreciate it when their ideas are challenged directly and publicly.  They also don’t try to defend them, at least directly.

In another post I address the nature of the legal standards used by the U.S. government in order to open national security investigations. The conclusion is that the legal standards used by the U.S. government are tantamount to enabling the government to have its own imagination. Net net, the government can open investigations based on what are tantamount to conspiracy theories. Another post that is related to legal standards addresses how progressive liberal legal and governance theories have been instituted within the U.S. Government. The conclusion is that legal standards, regulations, and rules have been changed in order to make it easier for the government to exercise its power. A recent empirical data point illustrating this is the August 2014 letter over half of all U.S. Inspector Generals signed and sent to Congress explaining that agencies are withholding or delaying key information for meaningful oversight to occur. I also wrote a post addressing the nature of national security and double government with respect to our rights. The conclusion of which illustrates that the U.S. National Security network of institutions is where real policies are made and they exert tremendous influence over the judicial, legislative, and executive branches of government.

The last research post I wrote explores why the U.S. Government treats our real lives and digital lives as separate and unequally. The conclusion is that the government treats our digital lives as separate and unequal because it knows that if it can control our information, it can ultimately control and shape us based on what the government thinks and feels is best for us.

Those conclusions, when coupled with the revelations of the Senate Select Oversight Committee Torture Report, create a disconcerting picture of the future of the United States and geo-politics. Essentially, the United States is no longer operating as an effective Democracy but as an Autocracy. Autocracy is tantamount to totalitarianism due in part that true power is concentrated in the hands of a relatively small group of people. It is also abundantly clear the U.S. engages in warrantless electronic surveillance on a global scale and despite Obama’s executive order that stopped the use of torture, according to John Brennan, the current Director of the CIA, the return of torture tactics is up to ‘future policymakers’’.(9)

The U.S. has long criticized its geopolitical adversaries such as China and Russia on their civil liberties postures regarding surveillance and methods tantamount to torture. Upon the release of the torture report U.S. geopolitical adversaries are now calling the U.S. hypocritical and its not just about its past, it’s also about its current policies of extra-judicial killings and drone striking people, including a few American Citizens, with no due process. Essentially the U.S. government is taking the position people are guilty and never given the opportunity to prove their innocence. The U.S. government, of course, says this is all done in the name of fighting terrorism, but there is sufficient empirical evidence these efforts have moved far beyond that.

Unfortunately, the U.S. is rapidly gaining the largely justified reputation as a lawless and unaccountable country based on the policies and actions of the U.S. government. The U.S. government no longer abides by long standing principals of human rights, natural rights, or constitutional rights but a synthetic moral/principle relativism based on ideology incongruous with historically understood American governance values. Given the role the U.S. plays in global affairs that span governance, economics, finance, technology, energy, etc. our very way of life is being put at risk by increasing threats. This is because the U.S. Government now has more negative similarities with its traditional enemies and less in common positively with its traditional allies. In addition, the traditional lists of U.S. enemies now have more positive commonalities with traditional U.S. government allies. Our friends trust us even less, if at all, and our enemies do not fear us and are seeking the trust of our traditional friends.  So where does that leave U.S. citizens?

So the U.S. government has divorced itself from its traditional constitutional and human rights principles to both its own citizens and global citizens. It is the responsibility of all American’s to contribute and take responsibility for the actions of their government to seek change, because if they do not, then outside political, economic, and military forces will exert pressure and change will be made for us. It is only a rational byproduct when a super power nation, whose government has lost its principles, does not recognize the issues and seek authentic and meaningful change. That is why U.S. citizens need to take action to rectify the problems of our government because if we do not, the future that is coming, is the one we have earned. That future does not look good at this moment, but there are three things we can individually and collectively do immediately to start down the path of taking hold of our rights and give the rest of the world a reason to allow us to earn their confidence again.

Recommended Actions:

  1. Companies should encrypt their own data and customer data that is at rest and in motion. (Sony is a great example to learn from why this is important)
  2. Companies need to ensure their users are who they say they are by instituting intelligent multi-factor authentication to help protect their digital/real life. You can read more detail about this in Part 3 of my research blog. (It is already an unofficial default standard, but every company is doing it differently with varying results. Those with patents on event driven security architecture could seriously help by enforcing their patents to harmonize best practices and positively encourage rapid adoption of the technology)
  3. Advocate for our digital lives and real lives to be treated as one in the same by the Constitution and Universal Declaration of Human Rights. (Because nobody is quite like you and your digital life should never be able to incriminate your real life)

My conclusion from Part 1, 2, and 3 of this research blog was that the U.S. government, in order to serve its own self interests, needs to start treating all people in the same manner it expects itself to be treated. The U.S. government is rapidly encrypting all of its own data that is at rest and in motion and instituting intelligent multi-factor authentication to protect its digital life. The U.S. Government is doing that because it knows that its digital life and real life are one in the same, but it feels your digital life and real life should be treated separate and unequal. That needs to change and it’s the type of change everyone should start believing in and seeking……right fucking now …….. because nobody is quite like you!

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