Sep 172014

Today the US House of Representatives voted to support President Obama’s plans to assist certain “vetted” groups in Syria who are fighting the Islamic State.

ISIS is in some ways a threat, and I think that our foreign policy ought to oppose the group at every turn. But I fear that this vote will turn out to be a missed opportunity to combat a far larger threat. Congress just missed an opportunity to put the brakes on the country’s post-2001 protean and never-ending faux-existential crisis responses to terrorist groups, and the associated and inevitable domestic rule-of-law violations that are always justified by spurious government appeals to “national security.” These are the only real existential threats in any way associated with ISIS. This vote does nothing to reduce these threats, because it expresses support for vague executive branch actions against a group whose threat to the national security of the US has been overhyped.

I agree with those who oppose aiding anti-ISIS groups for the very pragmatic reasons that it’s unlikely to work, or if it does, that the victorious groups in Syria or Iraq won’t be much better than ISIS itself. I agree with those who are skeptical about our commitment to fighting ISIS, when at the same time we seem unwilling to actively confront Saudi Arabia or Qatar about those nations’ aiding and abetting of ISIS.

But those reasons pale in comparison to what I think will be the consequences of this Congressional declaration of support for an Obama administration that is pursuing active military operations against ISIS. I fear that this vote will be cited by the Administration when it gets caught assassinating an American citizen that may have traveled to Syria to fight with ISIS forces. I don’t doubt that this vote will be cited by the Administration the next time it acts to stop a lawsuit in its tracks on grounds of “national security” because, somehow, our operations against ISIS may or may not have been related, somehow.

This lack of respect for the rule of law in the name of national security is not a context in which the Congress ought to lightly approve of the executive branch’s deepening our involvement in an overseas conflict against a foe that at most poses only a dubious threat to this country’s security (a threat to some of its ‘interests’, maybe, but not a threat to its security).

Instead, Congress could have strengthened the distinction between wartime and peacetime that has been blurred by the pseudo “war” on terror by not voting to support a vague plan to provide “assistance” to armed forces in Syria that have been “vetted” by some unspecified criteria, as Justin Amash describes the amendment that was just passed. Instead, we have another expression of Congress in support of American involvement in a military response to an overhyped threat. Since 9/11, we’ve seen how two successive administrations have used these conflicts as excuses for violating the rule of law in the name of national security. This vote missed a small opportunity to change this behavior.


May 062014

I’m going to reiterate one of the major reasons why I oppose the government’s bulk suspicionless domestic surveillance programs revealed by Edward Snowden and others. I’m talking about something different but inseparable from important issues of constitutionality, statutory legality, effectiveness, and intrusiveness that are debated almost ad nauseam among lawyers, journalists, politicians, and nat sec personnel.

I’m talking about context. The context of the erosion of the rule of law.

It matters to me that this surveillance has been initiated and concealed in the context of a so-called “war on terror” that has already precipitated many other reprehensible government behaviors that even many defenders of the NSA’s programs are reluctant to defend.

When I consider these other government actions, such as the Iraq war and the manipulative public relations campaign (lies) waged by the executive branch in preparation for that war, and when I consider the regimes of indefinite detention and assassination-by-drone embraced by both the Bush and Obama administrations and subjected to essentially zero public oversight, I am much less likely to believe that the government will not abuse these surveillance powers that it now claims are so necessary to protect us from terrorists.

If the overall context of these domestic surveillance revelations was one in which the rule of law was held in high esteem and scrupulously observed, things might be different. But instead, consider the context in which we actually find ourselves: apart from specific instances of flagrant disregard for the rule of law (see e.g. the disgraces at Abu Ghraib and the lawyerly cover-up that featured Jay Bybee’s torture memos, the legal embarrassments perpetuated by John Yoo, and the immediate rejection by the newly-elected Obama administration of any suggestion that anyone who played fast-and-loose with the law under the G.W. Bush administration should be made to answer for themselves, let alone pay any actual penalties), we are told that since we are “at war” that that the rules are different.

Specifically, that since Congress passed the AUMF, we are told that the executive branch is now operating not under a peacetime legal regime, but under some vague “wartime” regime that grants it much more leeway, but that remains ill-defined and which continues to rely almost continuously on post-hoc legal justifications and concealment of its actions from the public. We are not told why Barack Obama authorizes drone strikes that routinely kill people in Pakistan. Never mind that we have not declared war on Pakistan (or on Yemen, where we also repeatedly assassinate people with drones). Never mind that the identity of the killed is often kept secret (they were “militants”) in the face of routine allegations by third parties that many of the people killed were civilians. Forget about Abdulrahman Al-Awlaki. Forget about the detainees in Guantanamo and about the likely fact that they’ve been tortured and the known fact that they’re being held indefinitely. Focus instead on this pseudo-wartime legal regime that we all seem to take for granted.

When will we know when it ends? When will “terror” be defeated? When will be able to return to the peacetime, constitutionally-governed legal regime that would presumably require far more transparency and inter-branch checks on executive power than what we’ve seen since the AUMF? Answer: we don’t have a fucking clue.

And that’s why I don’t have faith or trust in the NSA, the FBI, or the government in general that it won’t abuse the historically unprecedented regime of bulk suspicionless surveillance that we are asked to accept in the name of this vague “war” on terror.

Faith and trust, I admit, are idiosyncratic emotions, and the defenders of the NSA can choose for themselves to trust, to believe, and to hope for a better future through unleashing the benevolent powers of people like John Brennan and the rest of the Obama administrations nat sec apparatus.

But that seems a bit too credulous for me. I like the rule of law and I want it back.

If you like the current surveillance regime and want to keep it, repeal the AUMF and disclaim any pretentions to some vague “wartime” legal regime. If you like the AUMF and think we’re still at “war”, then don’t try to defend secret blanket surveillance by arguing that it’s all legal under statutes and the Constitution — why would you need to? It’s war, bud, and the only real crime in war is to lose.

Postscript: I would appreciate not distracting ourselves with debates about the character or motivations of Glenn Greenwald or Edward Snowden — irrelevant! We’ll stipulate if you wish that both are smelly turds! Now let’s focus on the questions at hand and move on!

And let’s focus for a few moments on the rule of law in this country, not on Vladimir Putin or on what happens in Russia — irrelevant! Putin is a he-man dictator who is 1000 times more masculine than Obama! So stipulated! Move on!

Jan 182014

Should reporter James Risen have to testify in the government’s criminal case against former CIA agent Jeffrey Sterling? Law professor Eric Posner thinks that he should.

Sterling is accused of leaking confidential information about a botched CIA plot to sabotage an Iranian nuclear reactor, and is suspected of being a source for a chapter in Risen’s book. If the government can compel Risen to testify that Sterling was his source, Sterling will almost certainly be convicted, and reporters like Risen will almost certainly find fewer people willing to talk to them about confidential information. This is one reason why Risen is so reluctant to testify — his work as an investigative reporter depends heavily on his promise to sources that he won’t reveal their identities. Risen is arguing that the Supreme Court should create a privilege for reporters from testifying in criminal cases about the identity of their sources.

Eric Posner thinks Risen should lose that argument. Posner describes a world of deeply untrustworthy journalists and governments beleaguered with leaks. He concludes that in this world it makes no sense to hobble government prosecutions of dastardly leakers with grants of privilege to scurrilous reporters who want to indiscriminately disclose even the most valuable of secret programs. Although Posner does acknowledge that “a balance must be struck” between government secrecy and the need to inform the public of government wrongdoing, he seems convinced that rules favoring the work of investigative reporters will strike the wrong balance.

I must confess that I don’t recognize the world Posner apparently thinks we’re living in.

In the world I’m living in, the government has cloaked in secrecy far too much of what it does. If it has a problem with leaks, this is almost entirely the result of trying to keep secret wide-ranging programs that demand public discussion and consent if we are going to pretend that we live in a representative democracy. This includes the NSA bulk surveillance programs revealed by Edward Snowden; it includes the Iraq and Afghanistan war logs revealed by Chelsea Manning.  These leaks may be a problem for a government prone to excessive secrecy. They are the opposite for the health of our republic.

In the world I’m living in, journalists may indeed have failed to earn our trust, but not by indiscriminately disclosing valuable secret government programs, but by uncritically repeating what they’re told by government officials. I would call Posner’s attention back to the buildup to the Iraq war when journalists routinely repeated official claims that turned out to be untrue and deeply misleading. For me, any bad reputation journalists may have earned is the result of their failing to do their job and acting as stenographers and propagandists for the government.

With these background perceptions about the world we’re living in, I read Posner’s arguments and reject (almost) all of them. It may still be true that Risen ought not to have any privilege from testifying, but only if we actually do what Posner suggests as an alternative to excessive secrecy (but that I suspect he won’t be vigorously arguing for as soon as the Supreme Court declines Risen’s request).

Posner argues that because the act of disclosing classified information is a crime, it makes no sense to allow journalists who receive the leaked information to refuse to testify in prosecutions of these crimes. Worse, Posner seems to argue that we ought to be thankful that the government has chosen not to prosecute journalists for aiding and abetting these crimes.

I’d be happy to agree if only we lived in a world where journalism and leaking classified information were the same act (which they aren’t), or if we lived in a nation whose legal, political, and cultural traditions did not recognize the value of a free press (which they do), or if the idea of limits on the ability of the government to prosecute crimes was an alien concept (it isn’t), or if the only way to protect ourselves from terrorism was to live in a police state (it’s not).

Posner tries to persuade us that the press has “not earned our trust” by pointing to episodes of the press publishing information that the government wanted withheld (a 2005 article about the NSA, and a 2006 article about a Treasury Department program to monitor international monetary transfers). But this supports Posner’s argument only if one shares Posner’s worldview, and believes as Posner appears to believe based on his arguments in this article that the government should be the final arbiter of what gets published and what doesn’t. Posner says nothing about how or whether those disclosures were actually harmful, but I wish he would. Otherwise his examples just show that we still have an independent press in this country that — sometimes — doesn’t do what the government wants it to do. I remain thankful for that.

I suppose Posner might want to say that these leaks revealed no government wrongdoing, and that therefore they were leaks “that ought to be plugged.” But  it is far from clear that the programs Posner refers to revealed no wrongdoing. Furthermore, excessive classification and secrecy, even of activities that do not obviously violate the law, can themselves constitute “wrongdoing” when they become as ubiquitous as our government’s national-security obsessed programs have become.

Posner writes: “Leaking has also become such a problem because the government needs a vast unwieldy bureaucracy to supply the level of protection from terrorism that the public demands.” I will only say that invoking “public demand” as a justification for keeping secrets from the public might not be the most effective way of defending secrecy. How do we know that the public “demands” protection that they aren’t permitted to know about?

Posner does make one decent argument at the end of his post:

A reporter’s privilege that makes it harder for the government to prevent leaks just means that the government will redouble the screening, training, and monitoring. If it succeeds, we’ll have as little of the “free flow of newsworthy information” as we ever did, except at much greater cost to the taxpayer with ever more complicated, redundant, and awkward bureaucratic controls

He suggests instead a rule that leakers ought to be allowed to defend themselves by showing that they acted in the public interest by disclosing “grave wrongdoing.” Posner here acknowledges that “a balance must be struck” between the government’s need to keep some secrets and the public’s need for protection from government wrongdoing enabled by excessive secrecy. I agree. But the problem is that now we have neither the rule Posner suggests nor the reporter’s privilege that Posner dislikes. Right now, the balance between government secrecy and government accountability is tilted too far toward secrecy.

In this world, I think the reporter’s privilege Risen is seeking would improve the status quo.

Oct 112013

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort

— US Constitution, Art III, sec 3

Treason is a serious crime in the United States, that can be punished by death. It is also the only crime that the Founders felt necessary to define and restrict in the Constitution, presumably because they understood that it was too easy for kings to punish as traitors people who merely criticized the king or opposed his policies.

So it’s disappointing to see internet pundits tossing out accusations of treason without really meaning it. Right-wing pundit Jamie Kirchick, for example, earned a pat on the head from John Podhoretz for his article condemning journalists Glenn Greenwald and Jeremy Scahill for failing to condemn vigorously enough what Kirchick thinks ought to be condemned — Edward Snowden’s leaks and Bush/Obama counterterrorism policies — by accusing them of “treason-chic.” “They are not traitors themselves, but they serve as public-relations coordinators of treasonous actors. They are working to make traitorous actions seem valiant. Call it ‘treason chic.'”

Kudos to Kirchick for recognizing that these journalists he doesn’t like aren’t actually traitors, but since Kirchick thinks that “far more than a drop of treason courses through their veins,” he ought to state explicitly what he thinks ought to be done with Scahill and Greenwald and their ilk. How many drops of treason in your political opponent’s blood are too many? Sadly, Kirchick has never engaged with this question, preferring instead to accept his pat on the head from John Podhoretz and to continue on with his responsibility-free punditry.

Sadly, Kirchick isn’t the only pundit from whom accusations of treason trip too easily from the tongue. Robert Reich, upset about the House Republicans who disagree with him about the threat posed by Obamacare, easily and quickly concludes that these legislators “have begun sounding like” traitors. Reich imitates Kirchick at his worst, when he praises our system of government and then says of his political opponents “If they don’t stop their recklessness, they’ll be out of the game.” Does Reich mean to suggest that these legislators be punished for some quasi-treasonous crime? Presumably he’s too smart to say that. But I wish that if Reich really means to level an accusation of treason against these congressmen that he’d be explicit about what ought to happen to them. How much would they have to “sound like” traitors, to actually be traitors?

Kirchick and Reich are understandably very angry at the people who disagree with them, but they’re lazy and reckless to make pseudo-accusations of treason without explaining for us what consequences they think should follow when their political opponents skirt too close to a crime which can still be punished with death in this country.

Sep 102013

It’s downright unfashionable to have to be rescued. But is it wrong?

Mountain and wilderness people of all sorts — including climbers, backpackers, trail runners, hunters, skiers, photographers — are almost universally proud of their self-sufficiency in the backcountry. They’re used to talking about risks from weather, getting lost, falls, avalanches, wild animals, lightning. They’re familiar with all kinds of traditional and exotic gear and methods designed to minimize these risks. They sometimes sneer (I have, and I’m far from an expert mountaineer) at the casual tourists who set out each summer from roadside trailheads in jeans and hoodies, a bottle of Coke and a pack of cigarettes, thinking that it will take them only about an hour to climb that mountain that looks so close, but who quickly become dehydrated, get caught in a thunderstorm, become hypothermic, get lost, and need to be rescued. “We,” these mountain people think, “aren’t even close to being that stupid.”

And yet, even expert mountain people occasionally get in over their heads and need to be rescued. If these experienced people are smart, they’ll swallow their pride and embarrassment and call for assistance. That’s what Kilian Jornet and Emelie Forsberg just did while climbing the Aiguille du Midi last Saturday.

Kilian Jornet and Emelie Forsberg (photo:

Kilian Jornet and Emelie Forsberg (photo:

Jornet and Forsberg apparently got stuck on the Frendo Spur in running shoes when the weather worsened and decided to request assistance from the Chamonix mountain rescue team, the PGHM Chamonix Mont-Blanc. From reading various accounts of the event, it appears that they decided that further climbing was unsafe once they had unexpected delays in the ascent and the weather got worse. By all accounts I’ve seen, the rescue was done safely and professionally. Emelie Forsberg describes events like this:

Kilian and I went out climbing on Frendo Saturday morning. We had checked the weather, checked the route and we had in our mind that we could do the epron pretty fast. We estimated the time with the experience we had before. We know that we can move pretty fast in that kind of terrain.
We went climbing in a good pace. And when we reached the icy ridge we had only been out for a few hours. I thought to myself that woooha this must go really wrong if we don´t make it up there before 5 pm.
After the icepart we decided to go more in the rocks instead of the most common way up that was on the steep ice. That was in our plan the whole way, because we didn´t bring the proper gear for the ice. And that we knew before we started.

On the rock, I started to became a bit stressed. I was finding a way up that was a bit loose and I also didn´t have the best feelings after the icepart where I hurted my foot.
We took time climbing up, rappelling down, trying to find another way and so on we did for a while.
I became so cold and I couldn´t focus my thought very well. I was stressed and felt captured. We started to talk about possibilities. Rappelling down or try to do the last part even if we didn´t know if we could reach the summit that way or the last way out; call the rescue.

Kilian Jornet says this about their rescue:

On September 7th, I had planned a mountain route on the north face of the Aiguille du Midi (France), the so-called Frendo spur. This was a route that I had already done twice before on my own with only the minimum of material. I do this type of outings frequently, alone or accompanied, as they are both the basis of my training and of my free time.

I was accompanied by Emelie Forsberg and we were both equipped with light materials (short sports leggings, fine down jackets and trainers). We set off at dawn from Plan d’Aiguille, at 8:30 am to be precise, planning to return some 4 hours later, which was the time we estimated the journey would take. We had checked the weather forecast the day before, which announced bad weather as of 5 pm, and we both carried rock climbing materials (a set of friends, climbing chocks, 60m of rope …) and also ice climbing equipment (2 ice axes each, technical crampons and ice screws).

We started off at a good pace along the route, and at 9 am we started to climb roped together. At 12 we were about an hour from the summit. There, on the last stretch of the climb, we took a wrong turn and when we realized what had happened, we abseiled down to get back on the right path, losing about 3-4 hours. About 50m from the summit, my companion had a problem, and it was at that moment that we decided to call the PGHM (high mountain rescue team), aware that the weather would worsen in an hour’s time. We decided to make that call so as not to take a greater risk. At that altitude, it was me who had more experience and so I was responsible for the safety of my fellow climber. We were not exposed to serious risks because we were roped together and had the chance to abseil down if rescuers had been unable to reach us.

The rescue team told us that, due to the weather, a helicopter could not be used, and they would reach us on foot taking the Aiguille du Midi cable car and then abseiling down the 50m that separated them from the top of the Aiguille. It took 4h for the team to arrive at the scene after the call was made. From there, in a very professional and secure way, we were taken to the top of the Aiguille, from where the cable car took us down to Chamonix. We didn’t suffer any injuries or major consequences, apart from suffering a bit from the cold.

I would like to take this opportunity to thank the mountain rescue teams for their work, which is always so professional and efficient.

This is a warning that the mountain is a hard and dangerous place, even when precautions are taken. One must be humble in the mountains, because a high price can be paid for our failures, especially when travelling light. We must accept and be aware of the risks that we are prepared to take individually and with the people who accompany us, depending on our physical and technical skill and also our experience.

As is usual when a rescue like this takes place, there’s been criticism of Jornet and Forsberg’s decisions. In retrospect, there were plenty of things the pair could have done differently to avoid the predicament they found themselves in. Most of the criticism has been aimed at their choice of gear — running shoes and light clothing. The most aggressive of the critics implicitly or explicitly accuse Jornet and Forsberg of moral malfeasance, of selfishly choosing to take risks that, once things went bad, put their rescuers in danger and imposed costs on the public. Commenting on Emelie Forsberg’s blog, Alex Fernandez writes:

I have deep respect for what you do, you and Kilian. Very inspirational. BUT the main question here is : where ends everyone’s passion and wishes ? Wanna move fast & light in moutains ? Being rescued has a price. You put the PGHM guy’s life at risk, just because you wanna move light and fast, and moreover, at the expense of every french resident. We don’t have to pay the bills for your passion.

There is something to this argument. Where does the freedom to choose our path in the mountains butt up against the imperative not to burden others tasked with rescuing us from mistakes and misfortune? What costs, what risks, should we incur to support the passions of climbers like Jornet and Forsberg? In a perfectly-realized libertarian world, none. Ideally, we each would face the consequences of our own choices in the mountains alone. We would never call for rescue, realizing that this would be imposing risk and cost upon the rescuers. As a close second-best alternative, if we did request a rescue, we would reimburse the rescue group after the fact for the costs they incurred while rescuing us.

I’m sympathetic to this argument, but it does have limits. First of all, it’s not always clear what counts as a “mistake” in the mountains. What looks a priori like a reasonable decision will become, a posteriori, an obvious mistake if things go bad and you need to be rescued. In retrospect, every person that needs to be rescued did something (or failed to do something) that would have prevented their need for rescue. In this sense, the fact of being rescued inevitably reveals a mistake. But, a priori, most people make decisions about risk that look reasonable. They anticipate the weather as best they can. They plan their route as best they can. They account for dangers and risks as well as they can. But it is a fact about traveling in the mountains that all risk cannot be eliminated. And protecting against some risks often increases your exposure to other risks. A classic example is the tradeoff between “light and fast” vs “heavy and slow.” If you take less gear, you gain safety because you can travel faster, and every mountaineer knows that safety is often found in speed — get where you’re going before the weather changes. But of course, if you get caught out in deteriorating conditions, you’ll be in more danger if you don’t have a lot of gear to keep you warm or finish your climb.

The Frendo Spur (photo:

The Frendo Spur (photo:

Secondly, the suggestion that every rescue unjustly burdens the rescue service or imposes unfair risks upon rescuers just isn’t true. Every professional rescuer, such as those with the PGHM Chamonix Mont-Blanc, willingly chooses to join the team and to respond to calls for assistance. Many of these professionals derive immense satisfaction from using their considerable technical skill to rescue people. That’s why they volunteer or are hired for these services. No one forces them to do it. They understand, as every mountaineer does, that if people travel in the mountains, people will require assistance in the mountains. There is nothing unforseen about the risks these rescuers are taking.

And the costs that the rescue group or general public incur for these rescues are the foreseeable other side of the coin of the benefits these people obtain by encouraging  people to travel in the nearby mountains. The village of Chamonix, for example, derives immense economic benefit from their location at the foot of Mont Blanc, precisely because it’s such a good spot for mountain enthusiasts from around the world to visit, spend time and money in the local hotels and restaurants, between excursions into the mountains where risk is unavoidable. Chamonix is so popular precisely because of people like Jornet and Forsberg who, daily, are making journeys into the mountains and exposing themselves to the risks that go along with this. In fact, the notoriety and fame of Chamonix is disproportionately augmented by the bold and risky exploits of world-class runners and climbers who draw press coverage for their exploits, more so than the average tourist who rides to the top of the Aiguille du Midi in the telepherique.

It’s not a bad idea, of course, for rescuees to give back to the mountain rescue groups that help them. But it’s a tougher case to make that this should be required by law or by morality. There are cases where people show bad judgment when calling for a rescue. If you go hiking in the Grand Canyon and get thirsty, it’s not reasonable to call for a helicopter to fix the problem. But these stories are rare — most people of all experience levels try to be self-sufficient and to minimize risk. If you are human, and you go into the mountains, you will eventually need to ask for some help. It’s not a moral failing.