Tag Archives: national security

SCOTUS Opinion Alert: In Which Transparency is Dealt a Body Blow

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Obama on Phone

How do you know he’s not listening in on your conversations? Answer: you don’t.

 [Photo by Pete Souza, found via the Council on Foreign Relations]

For those of us who believe that the government needs to be more transparent in matters of national security, yesterday was not a very good day. In its first 5-4 opinion of this term, the Supreme Court split along ideological lines and ruled in favor of protecting a wide-ranging international surveillance program from constitutional challenges. Specifically, the Clapper v. Amnesty International opinion makes it much more difficult for lawyers, journalists, and human rights practitioners who suspect the United States of wiretapping their communications with non-Americans abroad to bring suit for such governmental behavior unless they have concrete proof that their correspondence will be intercepted.

At issue in Clapper is the Foreign Intelligence Surveillance Act (FISA), which allows the United States to target the communications of non-citizens on foreign soil. First authorized in 1978, FISA originally limited the Government to instances where it could show probable cause (to a special closed court known as a Foreign Intelligence Surveillance Court) that its individual targets were “foreign powers or the agents of foreign powers.”  In 2008, however, Congress amended FISA to include Section 1881a, a provision which removed the probable cause requirement and greatly expanded both the pool of people and the kinds of communications that could be monitored.

While FISA is aimed at foreign nationals who fall outside the protection of the Fourth Amendment, one effect of the law was the warrantless interception of thousands of international communications between FISA targets and American citizens. Shortly after the passage of 1881a, a group of American legal, labor, media and human rights organizations led by Amnesty International asked the Supreme Court to overturn that provision. Claiming that they frequently communicate with non-American clients, coworkers, witnesses and sources abroad, the challengers argued that this law violated their First and Fourth Amendment rights.

Before they could even get to the constitutionality of 1881a, however, the challengers ran into a practical problem: because of the secrecy involved in such surveillance programs, they couldn’t find any hard evidence that the United States was actually looking at their correspondence. Since Article III of the Constitution requires that you show some “injury” before you can bring a suit, Amnesty International argued that the injury lay in the “objectively reasonable likelihood” their conversations were or might be intercepted. The challengers further claimed that they had suffered numerous economic and professional harms in trying to avoid these interceptions, such as having to fly abroad to speak with clients in-person rather than over phone or email, and the reluctance of sources to disclose information in light of the potential eavesdropping. In response, the United States claimed that no one in this group had standing to bring this lawsuit, because (1) FISA targets only non-Americans, and (2) they simply could not prove that they were being intercepted. After the Second Circuit agreed with Amnesty International, the United States brought an appeal.

 Justice Alito

Justice Samuel Alito, a huge fan of certainty.

[Photo via Columbia Law School]

Justice Alito’s opinion, which was joined by Chief Justice Roberts and Justices Scalia, Thomas and Kennedy, reverses the Second Circuit ruling by accepting the Government’s stance that the challengers’ claimed injuries were too speculative to allow the suit to continue to trial. Alito found the Second Circuit’s “objectively reasonable likelihood” standard inconsistent with his reading of Supreme Court precedents, which he believes require a (much harder to show) “certainly impending” injury in order to establish standing. Ignoring the fact that it would be nearly impossible for any American to prove that the Government will monitor his correspondence under 1881a, Alito repeatedly emphasized that the challengers’ fears of future surveillance were nothing more than a “highly attenuated chain of possibilities.” Likewise, Alito brushed aside the fact that some of the challengers’ foreign contacts included the friends and family of Guantanamo detainees (including rather high-profile clients like Khalid Sheikh Mohammed and Mohammedou Ould Salahi) whose communications had already been monitored by the United States.

The majority opinion was also quite unsympathetic to the increased economic and professional costs of operating under 1881a, despite the fact that lawyers and journalists have an ethical duty to protect confidential communications with clients and sources:

“[The challengers] cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending… Because [they]do not face a threat of certainly impending interception under 1881a, the costs that they have incurred to avoid surveillance are simply the product of their fear of surveillance.”

Naturally, the liberal wing of the Court, which had vociferously questioned the United States at oral argument about the fairness of a law for which virtually no one has standing to challenge, took issue with all parts of the majority opinion. The Justice Breyer-penned dissent also looked to precedent and rejected the majority’s “certainly impending” injury standard in favor of a “reasonable probability” or “high probability” injury standard:

“…[C]ertainty is not, and has never been, the touchstone of standing. The future is inherently uncertain. Yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place. And that degree of certainty is all that is needed to support standing here.”

Breyer went on to list no fewer than 18 cases in which federal courts found standing even where the likelihood of injury was “far less certain than here.” In addition, he argued that under the Supreme Court’s 2010 decision in Monsanto Co. v. Geertson Seed Farms, “reasonable efforts to mitigate the threatened effects of the future injury”–i.e., the economic costs that the 1881a challengers incurred in trying to keep their communications confidential–could constitute an injury sufficient enough for standing. Looking at the Government’s motive, capabilities and previous actions under 1881a and some other “commonsense inferences,” the dissent concluded that the challengers had in fact met the “reasonable probability” of injury standard and should have been allowed to contest 1881a’s constitutionality at trial.

Unfortunately, the dissenting justices were unable to convince a fifth colleague over to their side, meaning that the federal government is now incentivized to take one more step away from transparency. In his opinion, Justice Alito countered this concern by choosing to place his faith in the special Foreign Intelligence Surveillance Courts, which he believes will keep the Government accountable to the Constitution. As Justice Breyer’s dissent pointed out, however, these closed, secret courts (which do not make their hearings or records available to the public) very rarely reject any of the Government’s surveillance plans, and should not be the only safeguard for Americans’ civil liberties.  Nonetheless, the message that the Supreme Court sent yesterday is clear: the more secretive the United States keeps its national security programs, the safer they are from constitutional challenges, and the harder it is for ordinary Americans to vindicate what may be flagrant violations of their rights. We should all be very scared.

Pay no mind to the man behind the curtain.

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The Guantánamo Bay trial proceedings for alleged terrorist mastermind Khalid Sheikh Mohammed hit a speed bump on Monday:

The courtroom is set up so that spectators behind sound-proof glass can listen to an audio feed with a forty-second delay. As Carol Rosenberg of the Miami Herald describes it, “A red emergency light spins in court when a censor at the judge’s elbow hits the mute button to prevent someone from spilling national security secrets.” At just before 2:30 P.M., David Nevin, one of the defense lawyers, who was addressing a brief having to do with C.I.A. secret prisons, said he understood that “we are going to do this in a 505 and that some portion of this will turn out to be closed or secret.” As he pronounced “secret,” the light began to flash and white noise filled the audio feed, as if it had been a trigger word—even though neither the security officer or the judge had touched the button. That’s when the judge, James Pohl, realized that he was not, as he’d thought—given the trappings and the job title—running his own courtroom. Some unknown person in another room was, and was apparently able to turn the audio off or on, or, for all anyone knew, pipe in the soundtrack to “Zero Dark Thirty.”

Judge Pohl, who is also an Army colonel, was confused and angry.

“If some external body is turning the commission off under their own view of what things ought to be, with no reasonable explanation because I—there is no classification on it, then we are going to have a little meeting about who turns that light on or off,” the judge said.

Responding to Joseph Massad on Homeland

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There is little that Joseph Massad got right in his scathing attack on the Showtime TV series Homeland. In a lengthy screed for Al Jazeera, the Columbia University associate professor of modern Arab politics and intellectual history left no stone unturned in a scorched-earth assault that ultimately revealed more about him than it did Homeland.

We’ll leave aside, for the moment, sentences like these: “This also applies to the more virulent Israeli Jewish racist representations of Arabs and Muslims, not only in the Israeli media, school curricula, and all cultural artifacts that Israeli Jewish society produces, but also by actual and ongoing Israeli Jewish policies towards Arabs inside and outside Israel.” If the man is being paid by the conjunction, all hail the world champion.

I will also disclaim right from the start that I am a devoted fan of Homeland. But this neither precludes me from accepting others’ critiques of the show nor prevents me from making my own (and it has its weaknesses, from melodramatic dialogue to improbable plots and more). But the tenor and, more importantly, substance of Massad’s critique is just wrong — and I mean that in the objective, fact-based way that Mitt Romney is wrong about Barack Obama’s apology tour. As in, what he’s saying is simply not true.

Where to begin? First, there is this discomfiting description of the main characters:

The CIA team monitoring Al-Qaida from Langley, Virginia, is represented by three top figures: the African-American David Estes, the Director of the CIA’s Counterterrorism Center, the American Jew Saul Berenson who is unsurprisingly the CIA’s Middle-East Division Chief, and the white Christian American Carrie Mathison, the female star of the show, who is a CIA intelligence officer assigned to the Counterterrorism Center.

The racialist structure of the show is reflective of American and Israeli fantasies of anti-Muslim American multiculturalism. The African American Estes is divorced and his former wife married an American Jew. She and their children converted to Judaism. He has also had a dalliance with his colleague Carrie that went awry. The Jewish Berenson is married to an Indian Hindu “brown” woman (perhaps cementing the Indian Hindu-Israeli Jewish rightwing alliance against Arabs and Muslims in the minds of the scriptwriters). On the first season of the show, cross racial romance seems to have also infected the character of a white rich American woman who fell in love with a “brown” mild-mannered Saudi professor at a US university and conscripted him in the service of Al-Qaida, which leads to his ultimate death and her imprisonment, though not before the Jewish Berenson tells her how much he identifies with her as two white people who fell in love with brown people.

The bizarre characterization of these three by their race/ethnicity and religion, followed by the off-tangent diatribe on miscegenation, is strange enough on its own. But Massad makes racial difference into something of a leitmotif by the end of his essay. In various passages, he writes of the Ashkenazi-inflected Arabic spoken by Nick Brody, his “suspiciously brown” Caucasian wife Jess, and even the metaphorical symbolism of the CIA director David Estes “[standing in] for Obama, at least as far as racial semiotics are concerned.” He distinguishes between “the Jewish [Saul] Berenson” and his “white colleague,” as if the two are somehow mutually exclusive. And in remarking on the death of an African-American character, Tom Walker, Massad declares it a manifestation of “the racist fantasy that a white American man gets to kill the same black man, not once but twice!”

Forgive me for being unaware of that particular fantasy. But Massad’s unnerving racial obsession is just the beginning, because he misunderstands most of Homeland‘s storyline as well. Here are, in order, some of his dullest moments:

1) Massad writes:

The gender representation is also remarkable for its commitment to 1970s white American feminism by featuring a leading strong white female character as the star of the show (which Hollywood began to champion since the film Alien in the late 1970s) and its equal commitment to sexist representations of white women as hysterics, or at least in Carrie’s case, for suffering from America’s most fashionable commercialised psychiatric ailment of the decade: bipolar disorder (an “ailment” that succeeded clinical depression as the most fashionable American psychiatric disorder in the preceding decade).

Here he misunderstands the show entirely. Carrie’s bipolar disorder is not a convenient demonstration of a “commitment to sexist representations of white women as hysterics.” It is, rather, intended (and sometimes succeeds) as a microcosm of the collective moral ambivalence of post-9/11 America. If the iconic series 24 — which Homeland creators Howard Gordon and Alex Gansa worked on as well — represented the full-blown glory and power of the American id in the immediate aftermath of the 2001 attacks, then Homeland is its natural sequel: an angst-ridden reaction to all that we’ve done in the name of counterterrorism over the past decade to the noisy pulse of a ticking digital clock.

The frantic real-time pace of 24 has been replaced by the more measured, and conventional, storytelling style of Homeland, and in this, too, one can make out the contours of our (achingly slow) evolution of the national conversation on security as well. We are moving from a worldview in which the next threat lurks perpetually just around the corner to one in which the magnitude of the unseen menace itself is an increasingly debatable question. (A piece last week in the New York Times, for example, signaled a growing exhaustion with the endless budget for security measures. The implications of this American tiredness have yet to be realized in actual major policy shifts, however.)

2) Massad refers to an emotional moment between Brody and Jess:

Concern about what Arab and Muslim men do to “their” women is paramount on the show’s scriptwriters’ minds. When Brody’s wife finds out he had converted to Islam, she throws the English translation of the Quran on the floor (very astutely done by the show’s producers who seem to think that only the Arabic Qur’an should not be desecrated) and asks in horror how he could have converted to a religion whose adherents would “stone” his daughter “to death in a soccer stadium” if they found out she was having sex with her boyfriend.

It’s incredible to me that Massad simply assumes Jess’ worldview is the one preferred by the creators of Homeland — or even the one perpetrated by the show itself. To anyone with even a passing affection for the show, it is quite obvious that Jess sees herself as a victim of Brody’s increasingly erratic behavior, but in no way does the show imply that this indignation is justifiably extended to include her concurrent Islamophobia as well. By contrast, Homeland goes out of its way to portray her as a woman with many faults: in fact, part of what attracts Brody to Carrie in the first place is his inability to reveal his thoughts to a wife who is simply unwilling and unable to understand him. Jess similarly repels her teenaged daughter, Dana, and is portrayed as a mostly ineffective mother to Chris as well. The totality of Jess’ persona is one of increasing isolation and incomprehension at a world she doesn’t understand. How Joseph Massad manages to miss all of this and yet stubbornly insist that her primitive characterization of Muslims as bloodthirsty prudes is representative of the show’s own perspective is truly a mystery.

3) Massad again:

On the most recent episode of season two, the Jewish Berenson declares in the context of searching for Brody’s Al-Qaida contact among hundreds of people that: “We prioritize. First the dark skinned ones” should be watched. When a white colleague objects that this is “straight up racial profiling,” Berenson responds that it is “actual profiling. Most Al-Qaida operatives are going to be Middle Eastern or African.” This is being said while the main Al-Qaida CIA target on the show is a white marine. The African-American Estes and Obama stand-in expectedly offers no protests to the Jewish Berenson. He just says “OK!”

Again, it’s hard to believe Massad and I are watching the same series. What he fails to mention is that, following this exchange, Berenson proceeds to identify his top three (Middle Eastern) suspects: a car wash manager, a cabdriver, and a grad student — all three of whom are (at least so far) completely unconnected to the actual plot Brody has been assisting. In fact, Berenson even fails to identify Roya Hammad as suspicious, despite 1) her very real role as an intermediary between the terrorist Abu Nazir and Nick Brody and 2) her private conversation with Brody while Berenson and Co. looked on via surveillance camera. There is a not-so-subtle irony here: in the very same moment that Berenson advocates racial profiling as the most efficient approach, Homeland demonstrates just how completely inaccurate and ineffective the practice actually is. (A similar inversion of conventional wisdom took place in Season 1, when the suburban Caucasian wife was an actual villain while her Arab husband turned out to be a red herring.) Massad, of course, missed all of this entirely.

4) Massad objects to Homeland‘s characterization of Beirut:

Beirut’s nouveaux-riches who spent billions of dollars (of the Lebanese people’s money) making the city look like a fun and modern western city are surely outraged that their city is depicted like some poor remote Afghani village. Indeed the multi-billion dollar Rafiq Hariri Airport looks more like a bus stop in war-ravaged rural Iraq than a modern airport. More recently, Lebanese tourism minister Fadi Abboud told the Associated Press that he is so upset about the portrayal of Beirut on the show that he is considering a lawsuit.

I nearly laughed out loud when I read the part about “the multi-billion dollar Rafiq Hariri Airport.” I spent this past summer in Beirut, and I’ve flown into and out of the airport there four times: if the Rafiq Hariri Airport is truly the final product of a multi-billion dollar investment, I’d be curious to discover just where all that money went. There is absolutely nothing spectacular or even remotely luxurious about the place, and I could probably name over a dozen other airports off the top of my head (including, for example, Budapest’s Ferenc Liszt International Airport) that match or exceed Beirut’s in style, comfort, and luxury. And even if this were not the case, Homeland‘s depiction of the airport was hardly prejudicial: nothing about the portrayal did a disservice to the real-life version. If anything, it may have actually improved upon reality.

Secondly, while the show’s depiction of Hamra Street was indeed quite unrealistic — it is, in fact, a bustling and trendy part of Beirut, littered with bars and coffee shops where the urban restless come to work and play — there is again a bit of tragic irony in the fact that, mere days after Fadi Abboud’s defensive comments (including his preposterous declaration that Beirut was more secure than New York and London), a car bomb exploded in one of Beirut’s wealthier districts, Achrafieh, killing a high-ranking Lebanese intelligence official and seven others.

All of this is not to say that Massad is entirely delusional. For example, he is at his strongest in the section titled “American Fantasies of Race and Sex,” in which he ably compares racist paradigms against African-Americans in a bygone era with the contemporary treatment of homosexuality (and especially Arab homosexuality). He also rightly takes issue with Homeland‘s all-too-easy bursts of self-righteous Western superiority, as when Carrie threatens a Saudi diplomat by implying she’ll send his daughter, a Yale student, “back to Saudi Arabia [where she’ll] get fat and wear a burqa for the rest of her miserable life.”

This latter example is one I find especially disturbing. It is so obviously racist that it seems impossible the show intended for it to be digested uncritically. And yet it seems to serve no greater purpose than to reignite the flames of that old American vengeance so purposefully exploited for years via the revenge porn of shows like 24. Sometimes it seems as if Homeland tries too deftly to counterbalance its (very slightly) liberal reading of the so-called “War on Terror” by interspersing its open self-doubt with some occasional triumphal and vitriolic Muslim-hatred. This not only undermines its message — to the extent that Homeland has an ideology — but is frustratingly typical for modern American liberalism: forever timid of its own beliefs, it tempers its principles with a frequent nod to baser instincts.

Throughout Season 1 and the first five episodes of Season 2 that have aired so far, Homeland‘s greatest weakness is that it falls prey to these crude racial and religious stereotypes that Massad appropriately decries. But he weakens his own critique by mischaracterizing Homeland‘s more defensible aspects in order to fit into his broader narrative of racial hatred. It’s a simplistic and inaccurate reading of an otherwise stellar show, even one whose ideology remains uncomfortably attached to a more Manichean era in American politics.

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