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So the latest news in the Maryland State Police spying scandal is that the program had apparently designated 53 nonviolent activists as terrorists, and had their names put on state and federal terrorist watch lists. The thing that grabbed my attention most, however, is the degree to which current and former MSP officials are digging in their heels on this matter:
The former state police superintendent who authorized the operation, Thomas E. Hutchins, defended the program in testimony yesterday. Hutchins said the program was a bulwark against potential violence and called the activists "fringe people."
I find this kind of funny, actually, given that the activists targeted were protesting the death penalty and the Iraq War, and that recent polls have shown that a plurality of Marylanders favor life without parole over the death penalty, and that the Iraq War is unpopular around the country. (I couldn't find any Maryland-specific polling, but I would be suprised if support for the Iraq War were stronger here than elsewhere.) If Hutchins wants to claim that large swathes of Marylanders are "fringe people," then I'm glad he's no longer running the Maryland State Police. Maybe he's been reading too much Brian Griffiths.
On a more serious note, I want to add that it's not just disturbing that the State Police abused their power so egregiously, it's also counterproductive to the goals of legitimate counterterrorism operations. While it might seem intuitive that casting a broader net of surveillance will help police catch any potential terrorists, it's more likely to come up with frankly useless information, like the activities of anti-death penalty protesters. In fact, the only valid reason to engage in such pervasive surveillance is to act as a form of intimidation of political dissidents, as was done in East Germany and other authoritarian regimes. Matt Yglesias made a similar point with respect to torture:
On 9/11, for example, various elements of the FBI and the intelligence community already had all the information that would have been necessary to foil the plot. The trouble was that no one person had all that information, because everyone was busy looking at other things. New processes -- pervasive surveillance, relaxed standards of evidence, statements acquired through torture -- that increase the quantity of intelligence by reducing its quality make things harder, not easier.
More information, conversely, simply tends to reconfirm what the powers that be already think they know. Key actors in the Bush administration were convinced that Saddam Hussein had advanced weapons of mass destruction programs. And by squeezing every possible bit of information out of every al-Qaeda captive and every Iraqi defector on hand, they were able to find their "proof." If you relax your standards enough and look hard enough, in other words, you'll be able to find information to justify just about any conclusion you like. The trouble is that the conclusions you like aren't going to be the conclusions that are accurate. The upshot was a gigantic mistake for which the country has paid -- and continues to pay -- a steep price. In the world of intelligence, in other words, less is usually more.
In a letter to the Washington Post Sunday (no link), Sen. Jamie Raskin says:
Like most Americans, I had assumed that the billions of dollars in federal homeland security funds channeled to the states went to monitor al-Qaeda sleeper cells planning terrorist attacks, or extremists who blow up health clinics or federal buildings. It never dawned on me that tax dollars collected during Gov. Robert L. Ehrlich's time in office could be paying for agents to infiltrate Quaker peace groups and anti-death penalty activists in Maryland.
It seems to me that one way to explain why the State Police became so interested in groups that posed no threat to public safety lies in the post-9/11 security environment. Essentially, in order to head off another al-Qaeda attack, the Bush administration and Congress started throwing tons of money at counterterrorism programs, and didn't give much thought to where the money was going. This has led to, among other thing, some egregious instances of waste and misspending in the Department of Homeland Security, particularly in parts of the country where the chance of a terrorist attack is slim to nil.
More generally, the shock and horror of 9/11 put a lot of people in a state of always trying to anticipate the next terrorist attack, as if the US were becoming like Israel, i.e., continually plagued by attacks and bombings. In fact, it seems that the 9/11 plot was more the exception than the rule; most of the terrorism plots in the US that have been uncovered since then were the products of, shall we say, less than stellar minds. Nevertheless, the possibility of another terrorist attack resulting in mass casualties is enough to encourage law enforcement agencies to look for potential threats in even the most remote areas. As security expert Bruce Schneier has pointed out, highly improbable events like terrorism tend to make us react irrationally; humans are pattern-making creatures, and so we're desperate to fold the unexpected into our existing mental framework, even if it doesn't make sense. Hence, for example, the ban on carrying liquids onto airplanes.
What does this mean for the State Police spying program? I suppose you could argue that it was the result of too much anti-terrorism money (and attention to fighting terrorism) has been chasing too few actual threats; thus, anti-death penalty and anti-war groups are inflated into groups of interests to law enforcement. That doesn't answer the question, however, of why just those groups were targeted. Finding that out ought to be the first thing any investigation into the surveillance program pursues.
None of this, of course, is meant to diminish the threat of terrorism in the US, and we should consider ourselves lucky that another 9/11-style attack hasn't occurred yet. But it's worth reminding ourselves that this particular issue with the Maryland State Police happened within a broader context, in which security priorities across the country have been skewed from what a more rational look at the situation would suggest. Why, for example, has the Bush administration been so aggressive about expanded surveillance powers and legalizing torture, but comparatively blasé about port and rail security? Or for improving language skills for intelligence operatives? Given the money (and lives) at stake, thinking strategically about how to combat terrorism is something our leaders need to be doing more.
“While these events happened in 2005 and 2006 under the previous administration, the Maryland State Police, under the O'Malley-Brown Administration, does not and will not use public resources to target or monitor peaceful activities where Maryland citizens are exercising their First Amendment rights,” O’Malley said in a statement.
He continued: “The State Police and other law enforcement agencies have an obligation to take seriously and investigate all potential threats to public safety consistent with state and federal law, including the Criminal Intelligence Systems Operating Policies contained at 28 Code of Federal Regulations Part 23. But where there is no evidence of a potential public threat, illegal activity or criminal wrongdoing, all investigatory or intelligence gathering activities shall cease.”
Good to hear. It also appears that the Maryland State Police did the surveillance without Bob Ehrlich's knowledge, which is perhaps even more disturbing.
The Post is reporting that the Maryland State Police during the Ehrlich administration spied on anti-war and anti-death penalty activists in Maryland. Apparently, numerous state police officers infiltrated these groups under the pretext of homeland security. And once the police spies reported that there was absolutely no evidence of illegal activity or intent to commit illegal activity, the spying continued.
It is, put simply, an abuse of police power, whether legal or not. These are people engaged in exercising their constitutional rights, and in expressing their opinions in a democratic system. Even a cursory examination and a bare minimum of logic reveals that these groups were never anywhere close to being dangerous to society, unless you count vigils and commemorations of the Hiroshima bombing to be dangerous. I mean, we're not talking about the Weather Underground here. The sixties ended a while ago.
Tim Hutchins, the police superintendent at the time, is quoted as saying, "You do what you think is best to protect the general populace of the state." Hutchins must be pretty stupid, to think that a bunch of aging hippies carrying signs are somehow dangerous to Maryland. And it is revealing that the groups being spied on were anti-war and anti-death penalty, instead of anti-choice or anti-immigrant. Hutchins, apparently, defines dangerous as those people that disagree with Governor Ehrlich. It's positively Nixonian.
Furthermore, even from a strictly utilitarian point of view, this was a waste of time for the police. They operated under the pretext of a law designed to protect America from terrorism, and instead of looking for terrorists they spent state tax dollars spying on activist groups. Couldn't that money have been better spent elsewhere? Couldn't the time of the police officers involved have been better spent actually catching criminals?
There needs to be a full investigation of this, not just by the ACLU, but by the state Attorney General or an independent investigator appointed by the state. If laws were broken, Hutchins and the other people involved need to be prosecuted. And the state, either through regulatory or legal changes, needs to create a system of oversight for the state police intelligence unit to make sure something like this never, ever happens again.
Update:Paul Gordon of MPW points out that the article doesn't make clear whether the practice on spying has stopped under the O'Malley administration. The Governor should immediately make clear whether this spying will continue and, if so, what sort of oversight exists for it.
It seems a little quixotic at this point, since it looks like the Senate will vote overwhelmingly in favor of the "compromise" on warrantless wiretapping and telecom immunity that will sweep the whole matter of the Bush administration's abuse of its surveillance powers under the rug, but we should let our Senators know that this vote to amend FISA is important, and one that we will remember. (For the record, Ben Cardin is against retroactive immunity, while Barbara Mikulski is in favor.)
I'm also going to throw in Barack Obama's contact info; as the presumptive Democratic presidential nominee, he should know that this is not an issue he can falter on and still claim the mantle of change:
PolitickerMD reports that the Fifth Congressional District is getting hit with robocalls from the Blue America PAC and Color of Change criticizing Steny Hoyer's support for retroactive immunity. The call seems to be based on this video by the Rev. Lennox Yearwood:
I doubt that robocalls are going to change anyone's mind or motivate people to press on Hoyer to change course, but it could serve as a wake-up call.
Via all around random blog Boing Boing, apparently this image was on the front page of the AT&T billing site. The poster at BB seems to think it's a joke about warrentless wire-tapping. I think it was probably meant to be some sort of joke about hiding your phone records from someone. Which is bad too. I mean, if AT&T was going for edgy, they ended up overshooting just a wee bit. And whatever way it was meant, the timing of the ad is a little unfortunate.
After Steny Hoyer's shameful performance in pushing the FISA bill through the House [which just sailed through the cloture vote in the Senate --IS], there's been talk about putting up a primary challenge to him in 2010. Even if it's only a protest candidacy, it might at least register the outrage many Democrats feel about their party's leadership giving in to Republicans' demands to let telecom companies break the law, and then turning around and portraying it as a victory for Democrats. It was infuriating enough when Democrats were in the minority, but to see Hoyer, et al, do the same thing as the majority party is almost inexplicable.
But is a primary challenge the best way to hold Hoyer accountable? I see three things to consider here:
Is FISA a big enough deal that Hoyer ought to be taken out because of it? Certainly for many Democrats, it is: Not only is Hoyer abetting the Bush administration's erosion of the Fourth Amendment, but by implicitly conceding that the Republican position is right, he is giving them an unearned victory in the national security debate. On the other hand, while rank and file Democrats are exercised over it, it's less clear that the broader public feels the same way. Yet again, FISA capitulation could be the issue that leads to a broader discontent with Hoyer, much as Al Wynn's attempts to quash net neutrality led to the discovery of a whole set of issues where he was serving his constituents poorly.
If we answer yes to the above, could you find a candidate wiling and able to run against Hoyer? That's tricky. Hoyer's got connections to just about everybody in the Maryland Democratic Party; unlike Wynn, Hoyer has been pretty successful in making more friends than enemies during his career. Moreover, the Fourth District was extremely lucky that someone as smart and talented as Donna Edwards decided to run for office when she did. It's possible that someone of similar caliber is willing to risk it (Populista mentions Paul Pinsky, my state senator, for example), but even then, it would be very much a long shot candidacy.
And lastly, does a primary challenge potentially put Hoyer's seat at risk of being scooped up by Republicans? The Fifth District has a Partisan Voting Index of D+9, and Hoyer hasn't faced a viable Republican opponent in years. At the same time, the Fifth District has a fairly high proportion of rural and conservative voters compared to neighboring districts; if and when Hoyer decides to leave Congress, the GOP will likely make a strong play for the seat.
So while it's possible that someone could mount a successful primary challenge to Hoyer, the stars would have to align in a very precise manner for that to happen. Besides, I suspect that, for better or worse, FISA, warrantless surveillance, telecom immunity could well be old news by 2010: The Bush administration's obsession with secrecy and unaccountable power is sui generis, and while the FISA "compromise" sets a bad precedent, I doubt it will survive a Barack Obama presidency. If John McCain is elected, on the other hand, we may still have a problem.
UPDATE: The Great Orange Satan's discussion of primary challenges in 2010 is worth a read.
Looks like Donna Edwards will be hitting the ground running today, with the House set to vote on a "compromise" concerning President Bush's warrantless surveillance program and retroactive immunity for telecoms that assisted the government in doing so. I use scare quotes because even a casual glance at the proposal shows that it essentially gives the Bush administration what it wants; i.e., freedom from ever being held accountable for their repeated violations of the Fourth Amendment. Even the Republicans aren't calling it a compromise, and with good reason: Whereas before the Bush administration wanted telecoms to be given blanket immunity, under the new proposal immunity would only be granted if the telecoms can show a judge that they participated in the warrantless wiretapping program at the behest of the government. I have a hard time believing any of the telecoms in question here will find it difficult to meet that standard.
I'll leave it to others to discuss the implications this "compromise" has for civil liberties in this country; right now I want to focus on the fact it was Steny Hoyer, my congressman, who engineered it, and has succeeded in getting it voted on with almost no time for debate. It probably shouldn't surprise me by now that Hoyer, like too many other Democrats, is willing to compromise on core Constitutional issues in order to avoid "looking weak" on national security. What's galling about this recent turn is that there seems to be no reason why they made this "compromise" in the first place. President Bush commands almost no respect anymore, and the Republicans are now losing on every issue, even national security. Indeed, four months ago, Hoyer and the Democrats recognized this and said "no deal" on retroactive immunity. What impelled them to reverse course so dramatically is beyond me.
