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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.
President Bush's efforts to enshrine his program of warrantless surveillance of Americans into law, as well as immunize any telecom companies who assisted the government in lawbreaking from prosecution, has gotten a new lease on life -- and once again, the Democratic leadership in Congress are acting as enablers. Glenn Greenwald has the details:
It is now definitively clear that House Majority Leader Steny Hoyer is the driving force behind a bill -- written by GOP Sen. Kit Bond -- to vest the President with vast new warrantless eavesdropping powers and to vest lawbreaking telecoms with amnesty. Even as his office dishonestly denies that he is doing so, still more reports yesterday -- this one from the NYT and this one from Roll Call (sub req'd) -- confirm that a so-called "compromise" is being spearheaded by Hoyer and the House Democratic leadership. The ACLU and EFF held a joint call today to denounce Hoyer's "compromise" as nothing more than disguised guaranteed immunity for telecoms and, further, because "the proposed deal could be used to authorize dragnet surveillance of Americans' communications in violation of the Fourth Amendment."
Greenwald is organizing a new campaign to pressure Hoyer and the Congressional leadership to stand firm, as they did the last time Bush tried to get retroactive immunity through Congress; so far he's raised over $60,000. Greenwald should have more details about the campaign soon, so check his blog regularly for updates.
A week or so ago, I sent an email to my Senators regarding the FISA update and Telco immunity.
I congratulated Ben Cardin, and castigated Senator Barbara Mikulski for their votes on telco immunity, which is really all about covering up the misdeeds of the Bush administration.
Here is her response, and my comments, which I'm not sending, because it won't do any good:
Now, the president asserts that the expiration of the protect America act will pose a danger to our country. The former National Security Council advisor on terrorism says that's not true. Former assistant attorney general says that's not true. Numerous others, and the chairman, has asserted that's not true. Why is that not true? Because FISA will remain in effect. The authority given under the protect America act remains in effect. And if there are new targets, the FISA court has full authority to give every authority to the administration to act. So i tell my friends, we are pursuing the politics of fear. Unfounded fear. 435 members of this house and every one of us, every one of us wants to keep America and Americans safe. Not one of us -- not one of us wants to subject America or Americans to danger. The president's assertion is wrong. I say it categorically. The president's assertion is wrong.
President Bush and the Republicans may stamp their feet because the House isn't give the telecom companies what they want -- freedom from litigation for spying on Americans -- but national security hardly depends on it. FISA already provides more than enough authority for the government to conduct surveillance on suspected terrorists in the US -- warrants, after all, can be gotten 72 hours after the fact. It's good to see Democrats talking sense on this issue again.
Lest we forget, yesterday the Senate voted on Dodd's amendment that would strike the telecom immunity provisions from the FISA bill. The amendment was rejected. Both praise and condemnation are in order for our Maryland Senators.
First, praise for Senator Ben Cardin, who voted for the bill and has consistently been on the side of justice when it comes to holding lawbreaking telecom companies accountable. Keep up the good work.
Now, on to Senator Mikulski. She appears to be the polar opposite of Senator Cardin on issues of holding these lawbreakers accountable. She not only voted against Dodd's amendment, but also voted for cloture on the bad version of the FISA bill. Senator Mikulski's failure to stand up for justice and Democratic principles on these votes is extremely troubling.
It looks like the Senate will be passing FISA legislation with retroactive immunity for telecom companies that helped the government spy on Americans. Once again, Barbara Mikulski voted to reward lawbreaking. As Glenn Greenwald says:
What Harry Reid's Senate is about to do today would be tantamount to the Church Committee -- after discovering the decades of abuses of eavesdropping powers by various administrations -- proceeding in response to write legislation to legalize unchecked surveillance, bar any subjects of the illegal eavesdropping from obtaining remedies in court, and then pass a bill with no purpose other than to provide retroactive immunity for the surveillance lawbreakers. That would be an absurd and incomparably corrupt nonsequitur, but that is precisely what Harry Reid's Senate -- in response to the NYT's 2005 revelations of clear surveillance lawbreaking by the administration -- is going to do today.
It'll be up to the House to stop this legislation now; sign this petition telling House members to stick to the much better bill they passed.
Now, I was irked when the new Democratic Congress was cowed into passing the [Protect America Act] last year, but now that the time has come for America to start acting like America again-we don't spy on our own citizens-it's shameful that a blue-state senator still sees the same way as a president with a 32 percent approval rating.
[...]
As for the telecommunication companies, they say that it was their patriotic duty to do what the president asked, and the president says they shouldn't be penalized for helping in the fight against terrorism. That all sounds lovely except for the fact it's a load of crap. The president is not the law, and the telecoms are only in it for themselves, just the way the conservatives' free market says they should be. [...]
This sad story hasn't fully played out yet, but the particulars are still there. Melissa Schwartz, Sen. Mikulski's hard-working communications person, was far more patient with my hotheaded self than I probably would have been in her case, and she told me that despite voting for more debate on the intelligence bill on Monday, Sen. Mikulski is still in favor of immunity for the phone companies. So still the question remains: Why is the senator of a state whose love for George W. Bush lapsed long ago carrying water for a bill to let his friends off the hook when he asked them to break the law?
The Senate will vote again on domestic surveillance legislation, as well as retroactive immunity for telecoms that assisted the government tapping people's phones without a warrant. Christy Hardin Smith has the details. And despite Sen. Barbara Mikulski's poor record on this matter, give her a call (202.224.4654) and see if she'll see reason.
The Post notes, as Andy did, Al Wynn's vulnerability when it comes to the housing and foreclosure crisis.
In John Sarbanes' first reelection bid, BRAC-related growth will be, unsurprisingly, a big issue.
The prisoner who killed a Washington County prison guard in 2006 will get life without parole.
The Maryland ACLU and the NAACP are asking for information about possible racial profiling by State Police.
For once again voting to allow telecom companies to break the law.
Some Democrats might have a plausible excuse to voting for retroactive immunity; e.g., they represent a conservative-leaning state and need to look "tough" on national security. What's yours?
Let us praise Sen. Ben Cardin this morning for being one of the few Senators to stand up to the Bush administration on domestic spying and letting telecom companies get away with helping the government break the law.
The FISA bill on electronic wiretapping that was before the Senate yesterday would have given phone companies retroactive immunity from being taken to court for assisting the government in the warrantless wiretapping of... well God knows whom. (That could well be the point.) Inexplicably, Majority Leader Harry Reid -- a Democrat, as I recall -- brought to the floor the bill the Intelligence Committee voted on, which had retroactive immunity, and not the bill the Judiciary Committee (and Cardin) voted on, which did not. (And let's remember, again, that Barbara Mikulski is on the Intelligence Committee, and voted for retroactive immunity. I'm tempted to write a follow-up post called "Stop Babs Stop!")
Fortunately Reid pulled the bill for consideration until next month, thanks to pressure from fellow Senators Chris Dodd, Russ Feingold, Cardin, and others. Like many of you, I've been highly disappointed with how our new congressional leadership has done so far, so it's good to know that there are a few people on our side.
Let us praise Sen. Ben Cardin this morning for being one of the few Senators to stand up to the Bush administration on domestic spying and letting telecom companies get away with helping the government break the law.
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