By Amy Goodman and Denis Moynihan
From Barack Obama, the first African-American president, the pendulum has ominously swung to the Ku Klux Klan’s choice, Donald Trump. Just elected the 45th president of the United States, Trump opened his campaign calling Mexicans “rapists,” and promised to build a wall along the border with Mexico (and to make Mexico pay for it). He vowed to ban Muslims from entering the country, insulted people with disabilities, bragged about committing sexual assault, denied climate change and said he would jail his opponent, Hillary Clinton. With the House of Representatives and the Senate remaining in Republican control, Trump’s power could be almost entirely unchecked.
While people around the world express shock and financial markets plummeted as the election results came in, here in the United States, the Beltway prognosticators offer “mea culpas,” and pollsters attempt to explain the failure of their scientific methods. This political upset is truly without precedent in U.S. history. In the aftermath of this bitterly fought, often crude, vastly expensive and punishingly long election, two questions dominate: How did this happen, and where do we go from here?
First, Trump’s campaign was overtly racist, and this seems to have motivated a terrifying number of voters. An increase in white voters was matched by aggressive efforts to depress voting by people of color. This was the first national election in more than 50 years conducted without the full protections of the 1965 Voting Rights Act. Systematic efforts to restrict voting in communities of color flourished in the South, including in the two key battleground states of Florida and North Carolina.
The media played a critical role in creating President-elect Donald Trump. The Tyndall Report, which tracks how much airtime different issues and candidates receive on the major news networks, summarized media coverage of the candidates in 2015. Donald Trump received 327 minutes, or close to one-third of all the campaign coverage, at a time when he had 16 Republican challengers. “ABC World News Tonight” aired 81 minutes of reports on Donald Trump, compared with just 20 seconds for Democratic presidential candidate Bernie Sanders, according to Tyndall. On March 15, 2016, after the primary day dubbed “Super Tuesday 3,” the networks played all the candidates’ speeches, except for the speech by Sanders. The networks actually spent more time showing Trump’s empty podium, filling the time until he spoke, than playing any words of Sanders’, who addressed the largest crowd that night.
Earlier this year, CBS CEO Les Moonves told a Morgan Stanley-hosted media-industry conference, speaking about the volume of political advertising that the “circus” of Trump’s campaign was attracting: “It may not be good for America, but it’s damn good for CBS. … The money’s rolling in.” As world-renowned linguist and political dissident Noam Chomsky says, “The media manufacture consent.”
Another element contributing to Trump’s unexpected win: the FBI. On Oct. 28, FBI Director James Comey sent a letter to congressional Republicans suggesting more emails had been discovered “that appear to be pertinent to the investigation” of Hillary Clinton’s private email server. This was 11 days before the election. Nine days later, he stated publicly that the emails offered nothing new. Early voting was happening during those nine days, with Hillary Clinton under the cloud of potential renewed FBI investigation. According to Business Insider, 24 million votes were cast during this period. We may never know how many votes Clinton might have lost as a result of that FBI intervention. “It would be entirely fair to say that the FBI swung the election to Trump,” journalist Allan Nairn said on the Democracy Now! news hour. “I don’t think anyone has ever claimed that J. Edgar Hoover swung a presidential election,” he added.
Hillary Clinton won the popular vote, but Donald Trump prevailed in the Electoral College. (On election night 2012, Trump tweeted, “The electoral college is a disaster for a democracy.”) Thus, he will assume the most powerful position in the world, the presidency of the United States. But there is still a force more powerful: movements. Within hours of Trump’s victory speech, protests were being planned across the country. In Morocco, where the United Nations climate summit convened just the day before the U.S. election, climate negotiators, environmental activists and stakeholders from around the globe organized ad hoc meetings, fearing that Trump could scuttle the entire Paris accord on climate change.
Donald Trump closed his victory speech by saying, “I can only say that while the campaign is over, our work … is now really just beginning.” For the millions of people around the globe committed to opposing Trump’s dangerous and divisive agenda, their work, too, has just begun.
A former Obama advisor on civil liberties says Snowden deserves one.
I have signed on to the letter asking President Obama to pardon Edward Snowden that was released today. I know this will be an unpopular position among many of my former colleagues in the national security community. My reasons for doing so are not fully captured by that letter. They are different from those who see Snowden simply as a hero and the NSA as the villain. I have concluded that a pardon for Edward Snowden, even if he does not personally deserve one, is in the broader interests of the nation.
Around the time Edward Snowden got his first job in the intelligence community, I decided to leave my position as an ACLU lawyer in the hope I could make a difference by going inside America’s growing surveillance state. Surprisingly, senior intelligence officials took a chance on hiring me in a unique new office safeguarding civil liberties and privacy. I began work in June 2006.
For the next seven years, I worked with a growing team of internal privacy watchdogs inside the intelligence community. We reviewed the most secret surveillance programs in government, including the major programs that Snowden later leaked. Our job was to ensure those programs had a firm basis in law and included protections for privacy and civil liberties. While I am proud of the work we did, it is fair to say that until Snowden stole a trove of top secret documents and gave them to reporters in 2013, we had limited success. It took a Snowden to spark meaningful change.
The NSA’s operations are essential to national security and to international stability, but it is hard to reconcile them with the values of a free society. Snowden forced the NSA to become more transparent, more accountable, more protective of privacy—and more effective. Today, the NSA’s vital surveillance operations are on a sounder footing—both legally and in the eyes of the public—than ever before.
For that, the United States government has reason to say, “Thank you, Edward Snowden.”
The Snowden reforms
In the last four years, there have been more significant reforms to mass surveillance than we saw in the four decades before the Snowden revelations began. Not since the post-Watergate reforms of the Ford and Carter administrations has the intelligence community faced such scrutiny. The NSA has taken painful steps to open up. The most secret of the government’s secret agencies will never be a model of transparency. Still, it has never been more transparent than it is today.
Before Snowden, basic information like the number of targets of the NSA’s mass surveillance operations affected by court-ordered surveillance was a closely-guarded secret. Today, the head of the intelligence community publishes an annual transparency report that provides these and other details.
Before Snowden, the NSA used a secret interpretation of the Patriot Act to amass a nationwide database of American telephone records. Congress has nowreplaced this program of bulk collection with an alternative program that leaves the data with telephone companies.
Before Snowden, the secret court that authorizes intelligence surveillance never heard more than the government’s side of the argument. Now, outside lawyersroutinely appear to argue the case for privacy.
Before Snowden, there was no written order, directive or policy that gave any consideration to the privacy of foreigners outside the United States. When intelligence officials asked lawyers like me about privacy, it went without saying that we were talking about American citizens and residents. Today, for the first time in history, a presidential directive requires privacy rules for surveillance programs that affect foreigners outside the United States. In an agreement with the European Union, the American government has been forced to adopt new protections for foreign data. In the next few years, the NSA’s partners in the United Kingdom will have to justify the surveillance practices of both countries in court against human rights challenges.
In 2017, Congress will review PRISM—a program leaked by Snowden that allows the NSA to obtain e-mails and other communications from American technology companies. The law that provides authority for PRISM expires at the end of the year. The law also gives the NSA access to the internet backbone facilities of American telecommunications companies, in a program called “upstream collection.” Until Snowden leaked details about PRISM and upstream collection, little was known about how the law worked. Thanks to Snowden, the debate over whether and how these programs should continue will be one in which the public is reasonably well informed – unlike the debates in Congress over the Patriot Act in 2001, 2005, 2009, and 2011, over the Protect America Act in 2007, over the FISA Amendments Act in 2008 and 2012, and over the constitutionality of the FISA Amendments Act in the Supreme Court in 2013.
The NSA’s new transparency about its surveillance operations showed that they were designed not to bring about a dystopian society where privacy would be abolished, but to collect intelligence vital to the national security. To be sure, Snowden’s trove of documents and the investigations that followed showed some programs were more effective than others. The same privacy board that reviewed PRISM said that the NSA’s bulk collection of American telephone records had “minimal value.” The board could find “no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.” Still, there has been remarkably little evidence of intentional abuse of the NSA’s sweeping powers for improper purposes unrelated to intelligence. None was revealed by Snowden. In response to inquiries from Congress in the fall of 2013, the NSA itself disclosed that itsinspector general had uncovered a dozen incidents over ten years in which analysts used overseas collection to spy on ex-girlfriends.
As a result, the programs Snowden exposed have all survived in some form. In the case of telephone records, the NSA says that the privacy reforms adopted by Congress have actually resulted “access to a greater volume of call records” than before. Many of the NSA’s other mass surveillance programs also enjoy greater public support and legitimacy than they did before Snowden came along. As Jack Goldsmith observes wryly, “These are but some of the public services for which the U.S. government has Snowden to thank.”
A failure of leadership
Edward Snowden’s actions caused great damage to national security. They should not have been necessary to achieve the sensible reforms of the past four years. That they were represents a failure of leadership by the intelligence community and the national security teams of the previous two administrations. For me, that failure is at least in part a personal one.
As a privacy and civil liberties official inside the intelligence community, and later at the White House, my job was precisely to provide top officials with confidential advice about how to ensure that intelligence programs were protective of our liberties. In doing so, I made just the sort of arguments that many have said Snowden should have raised internally instead of compromising classified information. Unlike Snowden, I had direct access to the officials that could have made surveillance reform a reality—and who did so, after the Snowden leaks forced their hand. There is no way a junior NSA contractor could have accomplished more.
Snowden’s critics argue that he should have made his concerns about privacy known through official channels without disclosing secrets and without breaking the law. That would have achieved nothing—even in an imaginary world in which the agency had a perfect system for protecting whistleblowers. Snowden’s concerns were not those of a traditional whistleblower. Snowden’s complaint was not that the NSA was violating its rules, but that its aggressive pursuit of its mission—even as it largely adhered to its existing rules – posed a serious risk to privacy in the digital age. If Snowden was wrong about mass surveillance being an “architecture of oppression,” he was certainly right about that, as many government officials have now acknowledged.
There is an inherent tension between the values of a free society and mass surveillance. For Snowden and his supporters, the answer is easy. End mass surveillance—which is to say, most of what the NSA does. Those of us who believe that the NSA’s far-flung operations are essential to national security and global stability have the harder task of keeping mass surveillance under control.
If Snowden deserves our thanks for both this round of surveillance reform and the next, it is only because the laws and institutions we created to control surveillance had become so obsolete. Intelligence agencies should not need the shock of massively damaging leak to abandon programs that are not working and refine and improve those that are. Disclosing details of classified programs should not be the most effective way to force change.
What do we do with Snowden?
It makes no sense for the United States government to pursue Snowden like a digital age Inspector Javert while at the same time admitting that his actions strengthened both our civil liberties and our national security. This is especially true because it was the intelligence community’s own shortcomings that made his reckless leak the only effective way to achieve reform.
If Snowden returned to the United States today, of course, he would have to stand trial for disclosing classification communications intelligence, among other serious crimes. This will never happen. Snowden’s lawyers know he would likely be convicted and would face a lengthy prison term. Under federal sentencing guidelines, an offender with no criminal history who is convicted of disclosing “Top Secret” communications information under 18 U.S.C. § 793(d) faces a prison term in the range of 168-210 months, or 14 to 17.5 years. See U.S.S.G.M. § 2M3.2. Snowden might face a considerably longer sentence if convicted of additional charges, or as a result of sentencing enhancements. Naturally, Snowden prefers to stay abroad.
The law does not allow the public interest defense that Snowden says he wants, nor should it. Permitting such a defense would encourage copycats. A Snowden wannabe might hope his lawyer could convince a credulous jury that his leaks also had some positive outcome, even if the benefits were scant. The Snowden disclosures were a unique watershed event, resulting in historic reforms. It is highly unlikely a future leak of classified surveillance information would produce such positive change.
While Snowden might be enticed to return if offered a favorable plea agreement, negotiating such a deal would create poor incentives. One idea, favored by the top lawyer for the intelligence community, was for Snowden to plead guilty to a single felony charge and serve three to five years in exchange for his help undoing the damage he caused. Through his lawyer, Snowden has said he would never plead guilty to a felony. If a plea deal was ever really on the table, Snowden has less to offer every day, as the information he leaked becomes stale and the intelligence community moves on. In any event, the Justice Department rightly objects to negotiating plea agreements with fugitives, to avoid giving those who flee prosecution an advantage over those that do not.
The status quo
Nevertheless, the status quo is clearly not in American interests. Snowden’s exile in Russia is a continuing embarrassment. Snowden has become a potent symbol for privacy and civil liberties, human rights, and an open internet in which surveillance operations are controlled by law. His presence in Moscow is a gift to Vladimir Putin, allowing the Russian president to cynically pose as a defender of digital human rights. Every time Snowden makes a virtual appearance before his admirers, the unspoken message is that he has been forced to seek asylum because the United States opposes these values. The message is no less effective for being false and unfair.
By contrast with a trial or a plea agreement, a pardon is an unreviewable act of discretion by the president. Presidents have used them not only to correct injustices, but also when the broader interests of the nation outweigh the importance of punishing a crime even where some punishment is clearly deserved. Gerald Ford pardoned Richard Nixon to help the country move beyond Watergate. Jimmy Carter pardoned draft dodgers to close the chapter on the Vietnam War.
Pardons are exceedingly rare. A pardon sets no precedent and so creates no incentives. Future leakers could not count on one. Even if Snowden does not deserve a pardon for what former Attorney General Eric Holder called his act of “public service,” we should give him one and move on. We are the good guys. It is time for the world to know it again.
By Juan Cole | (Informed Comment) | – –
Anti-Trump demonstrations have broken out all over the country in the wake of his surprise victory on Tuesday. Latinos are afraid he will deport their undocumented relatives, breaking up millions of families. Women are afraid for their basic rights to control their bodies, a right Trump and his tiny hands clearly do not respect. Environmentalists are afraid he will ramp up carbon emissions, spelling curtains for planet earth. Muslim-Americans are afraid he will make them register, sort of like Jews had to register in Nazi Germany before the Holocaust (registering was the prerequisite for the Holocaust, along with removal of citizenship rights). African-Americans are afraid he will revive the KKK.
I have been asked on several occasions in the past couple of days about how we can possibly get through these next four years. I agree that it is an urgent question, and I disagree with the Pollyannas who maintain that everything will be all right. It clearly won’t be all right. The rights of millions of people will be injured. Racist gangs will target people of color because they think they have impunity. It is already happening. Critics could be targeted for dirty tricks. It isn’t hard for a government agent to sneak up behind someone at the airport and slip a bag of cocaine into their luggage. Nixon actually had an office of dirty tricks, and I expect most of the White House to be taken up with the vindictive and petty Trump’s such office. If you don’t know how Nixon did a number on rival Ed Muskie with the Canuck letter and allegations that his wife was a pill addict, look it up. Muskie could have defeated Nixon in debates and at the polls, if Nixon had played fair. Some people are incapable of playing fair.
So how can we get through all this? Do something. Organize! Individuals are weak. Organizations are strong. If you have the opportunity to join a union, do so. The decline of unionized workers, at which the corporations connived for decades, is a big part of our current problem. But nowadays we also have new forms of organization including crowdfunding, e.g. of political campaigns. The early 20th century labor organizer Joe Hill, castigated as a radical “wobbly” and ultimately framed by conservative officials for a murder he did not commit, then executed, inspired the famous song that Joan Baez song at Woodstock.
The song writer was wise, and any social scientist will tell you, was right. Organize!
We have a first past the post political system, which means that the winner takes all. That fact underpins our 2 party system. The only vehicle we have to oppose Trump on the national stage effectively is Democratic Party activism. Of course, that is at the level of the legislatures, e.g. Other kinds of organizing are also important. Here are some suggestions about what to do.
1. Speak out against the corporate media’s normalization of Trump. CNN, Fox, MSNBC, NBC, ABC and CBS are culpable in having given him billions of dollars of free air time. After the election the anchors suddenly started fawning on him. It isn’t all right to have an alt-Right president. Racism isn’t all right. Sexism isn’t all right. Religious bigotry isn’t all right. All those media have contact pages. Write them. Pressure them. Get up advertiser boycotts of the biggest ass-kissers. Organize pressure groups to make sure that Trump-inspired racist intimidation and violence is covered by the corporate media and not swept under the rug. Make sure that climate change is covered (it isn’t, presently). These are money-making enterprises. Hit them where it hurts. Threaten not to buy the products advertised on their shows unless they change their ways. This way of proceeding is contrary to liberals’ first instincts, since they believe in airing a variety of opinions. But some opinions are beyond the pale, and if we don’t draw a line in the sand here, white nationalism will become our reigning ideology and many of us will be jailed. There are some baby discourses that must be strangled in the crib.
2. Work toward a consumer boycott of corporations that gave money to Trump’s campaign or who support his presidency. Do some web searches to see which consumer companies have a history of belonging to ALEC and supporting right wing causes. Find ways of publicizing Trumpish leanings among them and embarrassing them.
3. Speak out! Everyone can now be an op ed writer. Social media is everywhere. Start a Facebook page, a Twitter account, a blog, and update it at least weekly. It doesn’t matter if you don’t get many hits at the beginning. If you are regular and keep at it, it may well grow. Try to develop a “beat”– cover something no one else is paying enough attention to, and show the ways Trump’s reign is harming the country. Corporate media will try to crowd out our voices and normalize Trump and Trumpism. Don’t let them invade our social media space.
4. Mobilize to ensure the Democrats take the Senate in 2018. That is a tough proposition, since only 8 Republicans are up for reelection, mostly in reliable red states, whereas 25 Democrats face a contest, and some of them may be in trouble, as in Missouri. But this configuration is a challenge, not an insuperable problem. It needs money and effort. Republicans often do better in the midterms because only a third of people vote, and they are disproportionately older and whiter and wealthier, as compared to presidential election years. But it doesn’t have to be that way. Let’s aim for a massive voter turnout in the 2018 midterms. For instance, Arizona could be trending blue, with a significant increase in the number of Latino voters and more importantly in the number of registered Latino voters. This trend could make Sen. Jeff Flake vulnerable in Arizona. Likewise, Latino voters are key to bluing Nevada and defeating Sen. Dean Heller. But it isn’t just Latinos. White workers and millennials and middle classes at risk from Trump’s policies are even more numerous. But youth in particular tend to stay home in off-year elections. They can’t afford to do that if they want health care and want a liveable planet. Despite gerrymandering, there isn’t actually any barrier to the Democrats taking the lower house, as well, in 2018, if enough people get of their duffs and devote resources to it and actually go out and vote. Walk your neighborhood. Donate to the progressive candidates. Mobilize.
5. Latino-Americans who worry about Trump and his policies toward them haven’t registered to vote should think seriously about a) registering and b) voting in 2018 and 2020. And, Democratic activists need to volunteer their time for voter registration drives in minority neighborhoods. Some 71% of registered Latino voters cast their ballots for Barack Obama in 2012. Only 65% voted for Hillary Clinton. While in crucial Florida Clinton actually did better with Latinos this time than Obama had in 2012, she lost Cuban-Americans compared with Obama and she didn’t pick up as many Puerto Ricans as she needed to in order to take Orlando. Trump couldn’t have won without Florida, so it matters.
6. Where you can vote for judges, mobilize to elect progressive ones who will strike down Trumpist legislation.
7. Take risks. If Trump follows through and tries to register Muslim-Americans, insist on being registered along with them. Muslim with a large “M” means a follower of Muhammad and someone who practices Muslim faith and law. But in the Qur’an, the Muslim scripture, “muslim” with a small “m” actually just means generic believer in God. Abraham was a “muslim,” it says, and even Jesus was. The small “m” “muslim” could even be understood as someone who accepts Reality as it is. So in this sense, everyone can be a “muslim.” The Federal government doesn’t have the right to Establish an official religion or tell us what to believe, by dint of the First Amendment. Let’s all be “muslims.” Let’s all register. If he tries to keep Muslims from entering the country, let’s tie up the bureaucracy by saying we are “muslim.”
The Republican Party will expect the scattered protests to die out. They and their corporate backers will expect people to go back to being couch potatoes and letting the grown ups run the government. They will expect us to be silent when goons beat up Latinos or African-Americans or Muslims or liberals. Only sustained activism and organizing and effective steps to change the balance of power in Washington and in the statehouses can actually challenge Trumpism.
Let’s foil their expectations.