Shooting the Messenger

June 11, 2013, 11:30 a.m.

This series includes: "Lavabit Confronts 'Complicit or Close?' Levison Closes," August 9, 2013; "A Simple Matter to Drag People Along," August 6, 2013; "The Future of Surveillance and How to Stop It," August 4, 2013; "Surveillance: Differences of Degree and of Kind," July 3, 2013; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?," June 11, 2013; "From Zazi to Stasi; Trusting a Government That Doesn't Trust You," June 9, 2013; "Law's Losing Race With Technology," June 7, 2013.

Should Government Be Able To Keep Its Abuses Secret?

I'd call the cops, but they're already here.
-- Mason Williams

Everybody knows that the dice are loaded . . .
Everybody knows the fight was fixed . . .
Everybody knows that the boat is leaking
Everybody knows that the captain lied . . .
And everybody knows that the Plague is coming
Everybody knows that it's moving fast . . .
Everybody knows the scene is dead
But there's gonna be a meter on your bed
That will disclose
What everybody knows
That's how it goes
Everybody knows
-- Leonard Cohen, "Everybody Knows"

It’s very, very difficult, I think, to have a transparent debate about secret programs approved by a secret court, issuing secret court orders, based on secret interpretations of the law.
-- Senator Tom Udall (D-N.M.) Chris Strohm and Gopal Ratnam, "NSA Leader Seeks Openness on Secret Surveillance Orders," Bloomberg News, June 12, 2013

And what's the response when the cover of secrecy is breached? They lie:

Senator Ron Wyden (D-Ore.): Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

Director of National Intelligence James Clapper: No, sir.
-- Connie Cass, "Mangled facts, secrecy, confusion leave Americans unsure what to believe about NSA programs," AP/Washington Post, June 13, 2013

[H]e [Edward Snowden] appears to be a product of . . . the apparently growing share of young men in their 20s who are living technological existences in the fuzzy land between their childhood institutions and adult family commitments. . . . [Their] life is not embedded in a series of gently gradated authoritative structures: family, neighborhood, religious group, state, nation and world. Instead, it’s just the solitary naked individual and the gigantic and menacing state. . . . For society to function well, there have to be basic levels of trust and cooperation, a respect for institutions . . ..
-- David Brooks, "The Solitary Leaker," New York Times, June 11, 2013, p. A23; To which an unidentified Times reader responds with the online comment:

I find it somewhat disingenuous to criticize the younger generation for cynicism and mistrust without acknowledging the wider atmosphere that's responsible for creating such attitudes in the first place. . . . [A]uthorities and institutions have betrayed us at every turn. We have witnessed our political system become hobbled by polarization and corruption, our economy crippled by financial elites, our media devolve into petty bickering and mindless infotainment, our liberties eroded by the unending War on Terror and War on Drugs, our social safety net cut to shreds, our incomes stagnate while the wealthy hoard, our jobs disappear while the stock market soars, our natural environment raped in the name of profits and convenience, our friends and relatives sent off to wars built on lies, and our privacy systematically invaded by corporations and the government. And you ask . . . why we have lost our respect for authority and trust in institutions?

First they came for the communists,
and I didn't speak out because I wasn't a communist.

Then they came for the socialists,
and I didn't speak out because I wasn't a socialist.

Then they came for the trade unionists,
and I didn't speak out because I wasn't a trade unionist.

Then they came for the Jews,
and I didn't speak out because I wasn't a Jew.

Then they came for the Catholics,
and I didn't speak out because I wasn't a Catholic.

Then they came for me,
and there was no one left to speak for me.
-- Martin Niemöller

We should never forget that everything Adolf Hitler did in Germany was "legal" . . .. It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers.
-- Dr. Martin Luther King, "Letter from Birmingham Jail," April 16, 1963

_______________
Whom do you call when the cops are the criminals? Where can a military woman find justice when she is raped by her superior, and even if he is found guilty his superior can overturn the conviction?

And, more to the point today, what is the most appropriate response of a democratic society to its whistle-blowers when what they believe they need to reveal regarding a governmental abuse has been classified "secret"? [Photo credit: multiple sources.]

As Senator Udall has reminded us (quoted above), "It’s very, very difficult, I think, to have a transparent debate about secret programs approved by a secret court, issuing secret court orders, based on secret interpretations of the law." Does that make the case for whistle-blowing about secret, questionable programs stronger or weaker? With all that has been, and will be, written about Edward Snowden's revelations, this is an issue that requires much more discussion among Americans and their elected officials. This blog essay is intended as a stimulus to a beginning of that discussion.

Senator Ted Kennedy said of his brother, at Robert Kennedy's memorial service, "My brother need not be idealized, or enlarged in death beyond what he was in life; to be remembered simply as a good and decent man, who saw wrong and tried to right it . . .."

In a world governed by former Speaker of the House Sam Rayburn's advice to new House members, "If you want to get along, go along," a whistle-blower who "sees wrong and tries to right it" -- as an employee of a hospital, corporation, university, or military unit -- knows there will be a price to be paid: at a minimum, things will no longer be the same with their employer and colleagues. They may be fired. They may find it impossible to find work anywhere within their former industry. As an FCC commissioner challenging some of America's most powerful corporations with revelations about their practices, I knew that I would probably never again be either reappointed to the Commission or employed by law firms in Washington.

Most of us, faced with the choice between what we believe is our moral obligation to at least reveal, if not stop, things we believe to be illegal or otherwise wrong, on the one hand, and on the other hand, to remain silent and continue to be paid, will not casually choose the former over the latter. We have an endless list of our rationalizations for averting our eyes from what, as Leonard Cohen reminds us, "everybody knows."

But the question confronting America today is much more serious than the matter of how we treat everyday, conventional whistle-blowers. All they usually risk is unemployment and ostracism. Few, if any, must consider the possibility that their conscientious act will result in their death, with or without a trial, or life in prison.

That was the potential price that Edward Snowden knew he might pay. As he told The Guardian's Glenn Greenwald:

Yeah, I could be, you know, rendered by the CIA. . . . And that’s a fear I’ll live under for the rest of my life, however long that happens to be. You can’t come forward against the world’s most powerful intelligence agencies and be completely free from risk, because they’re such powerful adversaries that no one can meaningfully oppose them. If they want to get you, they’ll get you, in time. . . .

If I had just wanted to harm the U.S., . . . you could shut down the surveillance system in an afternoon. But that’s not my intention. And I think, for anyone making that argument, they need to think, if they were in my position, and, you know, you live a privileged life -- you’re living in Hawaii, in Paradise, and making a ton of money -- what would it take to make you leave everything behind?

"You're Being Watched": Edward Snowden Emerges as Source Behind Explosive Revelations of NSA Spying," Democracy Now, June 10, 2013 -- along with a transcript.

I'm not suggesting that those who make classified information public should be awarded the Congressional Medal of Honor. But neither do I think they should all be knee-jerk labeled "traitors" guilty of "treason" and "espionage" and thrown into the trash pile along with terrorists and felons. ("U.S. Sen. Dianne Feinstein Monday called self-professed National Security Agency surveillance plans leaker Edward Snowden a traitor. . . . 'I don't look at this as being a whistle-blower. I think it's an act of treason,' said Feinstein, chairwoman of the Senate Intelligence Committee." UPI, June 10, 2013.)

But what are we to make of our Director of National Intelligence, James Clapper, who flat-footed lied to the Senate regarding the existence of the NSA program that collects the metadata from millions' of Americans' phone records, quoted above? (Senator Ron Wyden (D-Ore.): "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" To which Director Clapper unambiguously responded, "No, sir.") Which is the greater treason? Who is the biggest traitor? Clapper, who lied? Or Snowden, who told the truth?

Note how our First Amendment protections work. Little to no actual harm came from Edward Snowden's conversations with, and gift of documents to, The Guardian's Glenn Greenwald. As a result of Snowden's actions only one additional person knew "the secrets."

The harm charged by our government, if any there be in fact, only came later. It came when Greenwald, his editor, and publisher, decided to tell all their subscribers -- knowing that other papers would pick up and run with the story, thereby ultimately spreading the secrets to millions. And yet no U.S. official, so far as I know, has argued that The Guardian, The New York Times, The Washington Post, or other papers telling the story of the government's secret spying programs should be prosecuted for treason. As the Pentagon Papers case [New York Times Co. v. United States, 403 U.S. 713 (1971)] demonstrated, once the media is given information, however much the government would like to restrain its publication, the courts believe the First Amendment forbids them to permit the government to do so. The media may exercise self-restraint, including in response to government appeals that publication would threaten national security, but the media cannot be restrained against its will from publishing by government or the courts. The newspaper owner is not prosecuted, nor the editor who approved the story, nor the journalist who got the information from the source, conducted the interviews, and did the research.

One can at least ask, if the values of the First Amendment are so overpowering as to trump the government's judgment that the publication of secrets should be restrained, why are those First Amendment values not equally applicable to the source of that information, so valuable to a democracy -- namely, the whistle-blower?

We also, as a civilized society, recognize acts of conscience -- including with laws providing at least some protection for whistle-blowers. (The Whistleblower Protection Act of 1989 forbids retaliation against government employees who report misconduct.)

In Dr. King's "Letter," quoted and linked above, he says of civil disobedience, "One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law."

One of the most serious tests of respect for conscience occurs in wartime, when our government has recognized the right of "conscientious objectors" to decline to be drafted into front line killing of other humans -- substituting community service of some kind as an alternative.

The "Right to Life" folks believe that doctors, pharmacists and others who consider all abortions to be "murder" should be free to act on that belief.

So when Edward Snowden trades in a $200,000-a-year job in Hawaii for the possibility of death and the probability of prison time, I think we have to recognize that as an act of conscience.

I'm with Dr. King. I don't think one should be able to do anything, claim it was compelled by conscience, and thereby escape any recrimination.

However, the issue in Edward Snowden's case is one of the government's own making.

It is saying to potential whistle-blowers, in effect, "You are free to report our run-of-the-mill misconduct; but if you believe our misconduct to be sufficiently serious to constitute a constitutional violation, we can declare our activities to be secret and classified, and thereby reserve the right to prosecute you for treason or espionage if you reveal what we are doing."

Checks and balances? The whole point of whistle-blowing, as with reports of rape in the military, is that the system and requirements of "going through channels" and "following procedure" and "oversight" and "Inspectors General" often fail. Even if the Congress and courts were doing their job of protecting us from the NSA, everything the overseers are doing is also treated as so highly classified as state secrets that they can't tell us enough to reassure us. And, open or closed, there are at least allegations that the NSA sometimes refuses to provide the Intelligence Committees with requested information, and that the Committees have performed more as lapdogs than watchdogs. The FISA "court," some report, has been almost exclusively a rubber stamp for whatever the NSA wants to do. And the executive branch (regardless of who's sleeping in the White House) seems to have been more interested in expanding than restraining its powers.

And with the controversial, litigated, and revised Patriot Act Section 505 gag orders accompanying "National Security Letters" (searches without warrants), American citizens (and their legislative representatives) have even been forbidden to hear from those being searched. The only analogy to that procedure that comes immediately to mind is the pedophile who threatens his victim with severe punishment should he or she ever reveal to anyone how they have been abused.

I'm more interested at this point in stimulating a national debate about revelations of "secrets" than in particular solutions. But here are some of the questions, or standards, I think we might want to consider.

1. Intent. Intent is an element of most crimes; it's one of the differences between "manslaughter" and "murder" -- even though both bring about the death of one person as a result of the actions of another, the defendant. We need to distinguish between revealing state secrets to foreign spies with an intent to aid an enemy, in time of war, and revealing them to a journalist, with an honest intent to prevent government wrongdoing to American citizens.

2. Restraint. In free speech cases we speak of the "least restrictive alternative" standard in evaluating governmental action that impacts speech. In revelations of state secrets we might ask, did the whistle-blower use the most restrictive alternative. That is, did he or she release only enough information to make their point? Did they make an effort to minimize possible harm to the government, or specific individuals? Did they hold back and not disclose some documents, or redact names and portions of others? Or, worst case, did they deliberately try to maximize that harm? Did they personally publicize raw data and documents, or did they filter what was released, both personally and by knowing it would be processed through a responsible media organization, its journalists, editors, and owners?

Snowden told Greenwald, "[A]nybody in the positions of access with the technical capabilities that I had could, you know, suck out secrets, pass them on the open market to Russia. You know, they always have an open door, as we do. I had access to, you know, the full rosters of everyone working at the NSA, the entire intelligence community, and undercover assets all around the world, the locations of every station we have, what their missions are and so forth." The point is, as he's quoted earlier in this blog essay as saying, "If I had just wanted to harm the U.S., . . . you could shut down the surveillance system in an afternoon. But that’s not my intention."

3. Personal responsibility. Did the whistle-blower act behind the curtain of anonymity, or did they come forward, acknowledge, and take responsibility for their revelations -- in the spirit of civil disobedience?

It would seem to me, based on what I now know, that in the case of Edward Snowden he has fully satisfied at least all of those standards.

I am less clear as to the answer of the "So what?" question. I do think we may need new legislation to address that question, and that, at a minimum, meeting these -- and other standards that may be proposed -- ought to take such cases out of the category of "terrorism," "treason," and "espionage," and radically reduce such punishments as might otherwise be appropriate.

For purposes of my question, it is far from decisive -- indeed, it may be not even relevant -- how the American people feel about their government spying on them. (Pew's recent update of its survey indicates we are about equally split, depending on the question -- and, for partisans, which Party occupies the White House.) My question simply addresses the matter of punishment for whistle-blowers who, as a matter of honest conscience, must, in order to be a whistle-blower, reveal things the government considers secret.

There is already a growing support for Snowden (as well as growing disapproval). The photo depicts a demonstration of support in New York City yesterday [June 10]. Robert Johnson, "Rally Held In New York City Supporting 'Hero' NSA Whistleblower Edward Snowden," Business Insider, June 10, 2013.

The White House maintains a Web site where citizens can start, and others can support and sign, petitions. On June 9 one was posted with the headline, "Pardon Edward Snowden," and went on, "Edward Snowden is a national hero and should be immediately issued a a full, free, and absolute pardon for any crimes he has committed or may have committed related to blowing the whistle on secret NSA surveillance programs." By this morning it was already nearly halfway to it's goal of 100,000 supporters (a number that triggers a self-imposed White House requirement that it respond to the petitioners). It's here. [On July 5th it had already surpassed its July 9th drop dead deadline goal, with 127,663 supporters.]

As of this morning [June 11] the Progressive Change Campaign Committee had already raised $20,000 for Snowden's legal defense fund. [By July 5th it stood at $32,000.]

For your further reflection, here is Amy Goodman's report, and reproduction of Glenn Greenwald's interview of Snowden, "You're Being Watched": Edward Snowden Emerges as Source Behind Explosive Revelations of NSA Spying," Democracy Now, June 10, 2013 -- along with a transcript.



# # #

Law's Losing Race With Technology

June 7, 2013, 5:25 p.m.

This series includes: "Lavabit Confronts 'Complicit or Close?' Levison Closes," August 9, 2013; "A Simple Matter to Drag People Along," August 6, 2013; "The Future of Surveillance and How to Stop It," August 4, 2013; "Surveillance: Differences of Degree and of Kind," July 3, 2013; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?," June 11, 2013; "From Zazi to Stasi; Trusting a Government That Doesn't Trust You," June 9, 2013; "Law's Losing Race With Technology," June 7, 2013.

Redefining 'Privacy'
Our decades-long suspicions that our government has been spying on us have recently been confirmed. Once again, public opinion -- not to mention our policy analysis and law -- are lagging far behind leaping technological advances.

The London Guardian broke the story that the U.S. super-secret FISA Court (Foreign Intelligence Surveillance Act) has given the NSA (National Security Agency) the legal right to gather all of our phone records indiscriminately -- even if there is no reason for the NSA to suspect we've done anything wrong -- in this specific case, the records of every Verizon customer (with legitimate reason to suspect similar authorizations have been granted for all other major phone companies). Glenn Greenwald, "NSA Collecting Phone Records of Millions of Verizon Customers Daily; Exclusive: Top Secret Court Order Requiring Verizon to Hand Over All Call Data Shows Scale of Domestic Surveillance Under Obama," The Guardian (London), June 5, 2013 (with link to text of FISA Court order). [Photo credit: multiple sources.]

Ultimately, of course, the story was picked up and repeated by mainstream U.S. media, as U.S. officials scrambled to reassure Americans that they (members of the U.S. House and Senate) had known of this all along and always considered it a dandy way to protect us from terrorists -- carefully noting that at least this order did not include the government’s right to listen to the content of our calls. "All they were doing" was gathering the date and times our calls begin and end, the locations of the parties to the calls, and the phone numbers involved. Charlie Savage and Edward Wyatt, "U.S. Is Secretly Collecting Records of Verizon Calls," New York Times, June 6, 2013, p. A16; Editorial, "President Obama’s Dragnet," New York Times, June 7, 2013, p. A26 ("The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it. That is one reason we have long argued that the Patriot Act, enacted in the heat of fear after the Sept. 11, 2001 attacks, by members of Congress who mostly had not even read it, was reckless in its assignment of unnecessary and overbroad surveillance powers.") [Photo credit: www.loohan.com]

Not to be outdone by The Guardian, the Washington Post soon had a story of its own to break:

The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track one target or trace a whole network of associates, according to a top-secret document obtained by The Washington Post.

The program, code-named PRISM, has not been made public until now. It may be the first of its kind. The NSA prides itself on stealing secrets and breaking codes, and it is accustomed to corporate partnerships that help it divert data traffic or sidestep barriers. But there has never been a Google or Facebook before, and it is unlikely that there are richer troves of valuable intelligence than the ones in Silicon Valley.

Barton Gellman and Laura Poitras, "Documents: U.S. Mining Data From 9 Leading Internet Firms; Companies Deny Knowledge,” Washington Post, June 6, 2013.

As I sometimes say, "The major problem is not so much that big corporations violate the law, it's that they write the law." The same thing's true of government. The White House, Justice Department, and the Intelligence Committees of the House and Senate tell us that all their spying on us is perfectly legal. They may well be right. Only problem is that the court that can tell us is so secret we aren't even supposed to know it exists; and unless the Guardian gets another leaked copy of an opinion we can't ever know what those judges decide, let alone their reasoning.

Legal or not, once again the technology is so far ahead of the ethicists, policy analysts, legislators and lawyers that we really need to "take it from the top," and totally rethink what we mean by "privacy" and what aspects of it are so important to us that we want legal protection.

Let's begin with a very brief review of the law.

The Fourth Amendment asserts a "right of the people to be secure in their persons, houses, papers, and effects" -- seemingly a kind of place-based security, a protection from trespassers -- albeit a protection that only extends to the exclusion of evidence so obtained. In 1928 the Supreme Court was still reading those words literally. Olmstead v. United States was a case in which the defendant had violated the prohibition laws. The prosecutor wanted to use evidence obtained by federal officers who had put wire taps on the defendant's phone lines a short distance from his property. The Supreme Court ruled that a phone tap, off the defendant's property, did not violate the language of the Fourth Amendment -- although it noted that Congress could pass a law prohibiting wiretaps (as it ultimately did).

By 1967, in Katz v. United States, Justice Stewart wrote for the Court, "the Fourth Amendment protects people, not places," even people who, as in that case, use public phones far from their homes. Justice Harlan, concurring, thought that was not enough: "The question, however, is what protection it affords to those people." Then, answering his own question, he posed the standard that has become the primary legacy of Katz: "there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable'" -- generally truncated into the shorter expression, "a reasonable expectation of privacy."

So far so good. But in the 1976 U.S. v. Miller case the Court explained that once you've shared information with another, even though you did so in confidence and for very limited purposes, you no longer have an expectation of privacy in that information, let alone an expectation that courts will consider "reasonable." In Miller the defendant, Miller, attempted to claim a Fourth Amendment right of privacy in the cancelled checks and other records and documents maintained by his bank.

Few people find it possible to function without a bank account; a relationship with a bank is more of a necessity than an option. A necessary feature of a bank account is that the bank maintain some records of your financial transactions. You may consider those records private, and that you have an implied understanding of confidentiality with the bank. However, the Miller court concluded that by giving those records to the bank Miller could no longer claim a reasonable expectation that they would remain private. Because he had no "reasonable expectation of privacy" law enforcement could get access to those records from the bank, without providing Miller the protections he would have received under the Fourth Amendment if Miller had no bank account and law enforcement had come to his home for his copies of those "papers."

That standard may or may not have made sense during the last decades of our pre-cyber life. Most of our "papers and effects" were kept in our homes, protected by the Fourth Amendment. Not all; the phone company had records of our long distance calls, the gas and electric company would have records of our consumption, and there were probably other exceptions. But for the most part we weren't giving information to third parties that we considered private and confidential.

Today the combination of electronics, digitization, the Internet, computers and telecommunication result in your sharing a large portion of your "papers" with others. Neither librarians nor store owners used to keep records of what books or other merchandise you examined. Today you share a record of every search with Google, a record of every product you examine on a company's Web site, your Kindle book library with Amazon, your music choices with iTunes. You've shared your email and text messages with some company, your photos with Picasa and Facebook, your videos with YouTube, your documents with Dropbox or some other firm that offers you real estate in their "cloud." In addition to your bank, "your" financial records are held by your credit card companies, airlines, rental car companies, hotels, and many local merchants.

As Chief Justice Taft noted in Olmstead, we still have some legislative protections from invasions of our privacy by corporations and government, and the opportunity for more. But there is very little left of the Fourth Amendment protections Americans once enjoyed -- at least with regard to the records maintained by corporations, and often handed over by them to agencies such as the NSA, CIA and FBI.

As yesterday's stories regarding the government's massive, sweeping collections of phone records and Internet traffic make clear, technology has left the Fourth Amendment in the dust as it speeds past. When law enforcement had to get a search warrant to tap one individual's phone, the Fourth Amendment's requirements were administratively feasible. When the government wants to tap everyone's phones, and collect everyone's Internet traffic, that system collapses.

Remember the song with the line, "If it weren't for bad luck, I'd have no luck at all"? Well, if it weren't for the FISA court we'd have no court at all; indeed, we didn't, not that many years ago. The government contended it didn't need any judicial approval to spy on Americans. But a "Top Secret" (that is the classification on the FISA court's Verizon order) court that reportedly grants virtually every request, and never releases its cases, their resolution, or its reasons, is a pretty thin reed on which to rest the public's confidence in their government.

The Supreme Court needs to rethink the Fourth Amendment's protection of our privacy in a post-cyber world. The mere fact that today's technology means that no American can have a "reasonable expectation of privacy" anywhere, at any time, requires that standard -- and its deadly presumption regarding records shared with third parties -- be discarded.

There's much, much more to be said on this subject. And I'm told there are more revelations coming from the Guardian's Glenn Greenwald. But that's all for now.

# # #

Obama's Move to Right Shows Self-Defeating Weakness

July 1, 2008, 7:30 a.m.

What If It Turns Out That . . .
. . . Liberals Tacking to the Right is a Dated, Failed Strategy That Doesn't Even Work?

[Related:

Nicholas Johnson, "Change We Can No Longer Believe In," June 22, 2008

Nicholas Johnson, "Holding Obama's Feet to the Fireside Chat," June 24, 2008.

Nicholas Johnson, "The Bundling Business," June 26, 2008.

Nicholas Johnson, "Will the Real Obama Stand Up -- For Us?" June 27, 2008.

Nicholas Johnson, "Pragmatic Idealism," June 28, 2008.

Nicholas Johnson, "Obama's Geometry: Triangulation," June 30, 2008.]

With the transformation of Senator Obama's campaign from a primary campaign to a general election campaign the public's and media's perception is that he's been making some pretty sharp turns to the right on such subjects as NAFTA, public financing of campaigns, government funding of faith-based programs, the death penalty, Israel, tax cuts for corporations, regulation of guns, FISA and immunity for telephone companies caught illegally spying on Americans.

This blog -- which has been a supporter of Senator Obama -- has been exploring the issues this raises with regard to political campaigning in general, Senator Obama's campaign in particular, and his most effective winning strategies. (See links, above.) So have many others (most of whom were also at least leaning in Obama's direction) in the mainstream media and blogosphere.

Today's blog entry addresses the possibility that when liberals shift to the right in general elections they lose; that whatever else may be said about the ethics of electorate manipulation, it's a failed strategy.

But first, to recap, yesterday the entry laid out four categories of voter response to a candidate's change in positions -- to which Stephen Ducat provided a fifth:

1. My candidate doesn't support all my positions. Few sophisticated "political people" would express this objection. They are satisfied with the Rolling Stones' advice: "You can't always get what you want/But if you try sometimes you might find/You get what you need." For them, elections have always involved the compromise of picking the "least-worst." But there are some voters who would rather stay home, or cast a protest third-party vote, than vote for someone who's less than their perfect, ideal candidate.

2. There's one issue that's a deal breaker for me. Folks on either side of an emotionally charged issue, such as abortion, sometimes feel that who may end up getting appointed to the Supreme Court, say, trumps for them the candidates' positions on all other issues combined. Others are more willing to give a little on their most important issue so long as the candidate is "right on the issues" with regard to everything else they care about.

3. My candidate is shifting his/her positions from the primary to the general election campaign. However discouraging it may be, most voters have come to accept that some shift in their candidates' positions from primary to general is just a natural part of real politique in America.

4. It turns out my candidate is a very different person, with very different positions and approaches, from what they represented themselves to be. Some voters feel essentially betrayed when they discover they've been manipulated into supporting a candidate based on that candidate's either clearly expressed or vaguely implied misrepresentations. Such voters may respond by voting for someone else, staying home, or at a minimum cutting back on or eliminating their campaign contributions and volunteer time. This is most serious when the candidate's "brand" has been one of courage, character, change, idealism, high moral ground, progressive populism, and a "new kind of politics" -- as was the case with Obama.

To which Stephen Ducat has added,

5. Apparently my candidate "does not believe in his own ability to reframe certain key issues in a way that makes . . . liberal principles intellectually clear and emotionally compelling." In other words, it's not that Obama actually holds and advocates conservative Republican beliefs; and it's not that he's willing to do so just to get elected. The problem is that he either doesn't have, or at least is not willing to show us, the leadership qualities we need in a president who can move our country in a more rational and progressive direction. Apparently, notwithstanding his Harvard Law School education and record, either he doesn't have the ability or he isn't willing to put in the effort, to come up with compelling ways to sell the public, and lead the political establishment, toward innovative reforms that will better serve the public interest.

Stephen Ducat, "Understanding Obama's Recent Right Turn," Huffington Post, June 29, 2008.


And Compromising Principles Isn't Even a Winning Strategy
This morning we examine a sixth suggestion from Glenn Greenwald.

You may think it's morally reprehensible for a candidate to misrepresent who he or she is, and the positions they hold, for the purpose of manipulating voters, who would not otherwise have done so, into supporting them. Or, you may think that's just good old pragmatic politics.

Glenn Greenwald suggests we need to put those considerations aside and more thoroughly examine the data and answers to three questions: (1) "did that strategy ever work?" and, if so, (2) "have the times changed sufficiently that it no longer works?" (3) If a candidate wants (or needs) to project "strength" can it be better done by appearing to drift toward, and ultimately adopt, Republican positions (on national security, torture, war, and spying on Americans) or by consistently opposing those positions?

Could it be that by his "move to the center" Senator Obama is not only alienating his most fervent former supporters -- now feeling something more akin to betrayal than mere buyers' remorse -- but he is also projecting weakness rather than "strength" to the Independents and Republicans looking for a "strong" presidential candidate?

(Greenwald also refers in this piece to Senator John Kerry's campaign in 2004, a subject I addressed at the time in Nicholas Johnson, "What's Kerry Thinking?" May 15, 2004.)

Here are some excerpts from his article:

. . . In 2006, [Republican Congresswoman Nancy] Johnson [who had served 12 terms from a Republican district, and beat her challenger in 2004 by 22 points] was challenged by a 31-year-old Democrat, Chris Murphy, who ran on a platform of, among other things, ending the Iraq War, opposing Bush policies on eavesdropping and torture, and rejecting what he called the "false choice between war and civil liberties." Johnson outspent her Democratic challenger by a couple million dollars, and based her campaign on fear-mongering ads focusing on Murphy's opposition to warrantless eavesdropping . . ..

Johnson's final margin of defeat was 12 points. Despite continuing to represent a tough, split district, Rep. Murphy -- as he runs for re-election for the first time -- recently voted against passage of the FISA/telecom amnesty bill, obviously unafraid that such Terrorism fear-mongering works any longer.

That pattern has repeated itself over and over. In the 2006 midterm election, Karl Rove repeatedly made clear that the GOP strategy rested on making two National Security issues front and center in the midterm campaign: Democrats' opposition to warrantless eavesdropping and their opposition to "enhanced interrogation techniques" against Terrorists. Not only did the Democrats swat away those tactics, taking away control of both houses of Congress in 2006, but more unusually, not a single Democratic incumbent in either the House or Senate -- not one -- lost an election. . . .

Earlier this year, Bill Foster made opposition to the Iraq War a centerpiece of his campaign -- and emphatically opposed both warrantless eavesdropping and telecom immunity -- and then won a special election to replace Denny Hastert in his bright red Illinois district.

As the 2008 election approaches . . . it's actually difficult to identify [Democrats] who have any real chance of losing. That's how weakened the GOP brand is and how vehemently the country has rejected their ideology and politics -- in every realm, including national security.

So what, then, is the basis for the almost-unanimously held Beltway conventional view that Democrats generally, and Barack Obama particularly, will be politically endangered unless they adopt the Bush/Cheney approach to Terrorism and National Security, which -- for some reason -- is called "moving to the Center"? There doesn't appear to be any basis for that view. It's just an unexamined relic from past times, the immovable, uncritical assumption of Beltway strategists and pundits who can't accept that it isn't 1972 anymore -- or even 2002.

Beyond its obsolescence, this "move-to-the-center" cliché ignores the extraordinary political climate prevailing in this country, in which more than 8 out of 10 Americans believe the Government is fundamentally on the wrong track and the current President is one of the most unpopular in American history, if not the most unpopular. The very idea that Bush/Cheney policies are the "center," or that one must move towards their approach in order to succeed, ignores the extreme shifts in public opinion generally regarding how our country has been governed over the last seven years. . . .

[W]as John Kerry's narrow 2004 loss to George Bush due to the perception that Kerry -- who ran as fast as he could towards the mythical Center -- was Soft on Terrorism? Or was it due to the understandable belief that his rush to the Center meant that he stood for nothing, that he was afraid of his own views -- the real hallmark, the very definition, of weakness?

By the time of the 2004 election, . . . [Bush said] "Even when we don't agree, at least you know what I believe and where I stand."

Bush's ability to project "Strength" came not from advocacy of specific policies, but from his claim to stand by his beliefs even when they were politically unpopular.

For that reason, isn't the perception that Obama is abandoning his own core beliefs -- or, worse, that he has none -- a much greater political danger than a failure to move to the so-called "Center" . . . ? . . . That narrative -- that he's afraid to stand by his own beliefs -- appears far more likely to result in a perception that Obama is "Weak" than a refusal to embrace Bush/Cheney national security positions.

What's most amazing about the unexamined premise that Democrats must "move to the Center" (i.e., adopt GOP views) is that this is the same advice Democrats have been following over and over and which keeps leading to their abject failure. It's the advice Kerry followed in 2004. It's why Democrats rejected Howard Dean and chose John Kerry instead.

And in 2002, huge numbers of Congressional Democrats voted to authorize the attack on Iraq based on this same premise that doing so would enable them to avoid looking Weak on National Security. The GOP then based its whole 2002 campaign on attacking Democrats as Weak on National Security and the Democrats were crushed -- because, having accepted rather than debated the GOP premises, there was no way to challenge GOP National Security arguments. What makes Democrats look weak is their patent fear of standing by their own views. A Washington Post article last week on Obama's move to the center included this insight:

"American voters tend to reward politicians who take clear stands," said David Sirota, a former Democratic aide on Capitol Hill and author of the new populist-themed book The Uprising. "When Obama takes these mushy positions, it could speak to a character issue. Voters that don't pay a lot of attention look at one thing: 'Does the guy believe in something?' They may be saying the guy is afraid of his own shadow."

[If] . . . "Strength" means what the GOP says it means . . . it's a framework within which Democrats can't possibly win, because Republicans will always "out-Strength" Democrats . . .. [O]nly by challenging and disputing the underlying premises can Democrats change the way that "strength" and "weakness" are understood.

The Democrats had such a smashing victory in 2006 because . . . there was a perception (rightly or wrongly) that they actually stood for something different than the GOP in National Security (an end to the War in Iraq). . . . The advice that they should "move to the center" and copy Republicans is guaranteed to make them look weak -- because it is weak. It's the definition of weakness.

The most distinctive and potent -- one could even say exciting -- aspect of Obama's campaign had been his aggressive refusal to accept GOP pieties on National Security, his insistence that the GOP would lose -- and should lose -- debates over who is "stronger" and more "patriotic" and who will keep us more safe. The widely-celebrated foreign policy memo written by Obama's adviser, Samantha Power, heaped scorn on Washington's national security "conventional wisdom," emphasizing how weak and vulnerable it has made the U.S. When Obama took that approach, he appeared to be, and in fact was, resolute and unapologetic in defending his own views -- the very attributes that define "strength."

The advice he's getting, and apparently beginning to follow, is now the opposite: that he should shed his prior beliefs in favor of the amorphous, fuzzy, conventional GOP-leaning Center, that he should cease to insist on a re-examination of National Security premises and instead live within the GOP framework. That's likely to lead to many things, but a perception of strength isn't one of them. . . .

UPDATE: . . . Many Democrats support Bush policies because they believe in them. Others don't believe in them but are persuaded that they must support them in order to be re-elected. Still others have no beliefs at all other than their own re-election and do whatever they perceive is most likely to achieve that. Here, I'm simply taking the political argument at face value -- that Democrats must "move to the Center" in order to win -- and arguing why that's empirically false.

Glenn Greenwald, "The Baseless, and Failed, ‘Move to the Center’ Cliche," Salon.com/CommonDreams.org, June 30, 2008.

Thus, there appears to be both good news and bad news.

The bad news is that by following the consultants' advice to engage in manipulating, triangulating, and misrepresenting who one is and what they believe a Democrat may well lose both their soul and their election.

The good news is that there is an alternative, and that staking out positions on the issues can be a win-win. By avoiding the advice to appear "Republican-lite," by having core beliefs, distinguishing them from those of the Republicans, holding to them, making a persuasive and even emotionally appealing case for what one believes, a liberal Democrat can not only come across to voters as "strong" and a person of integrity, he or she can have the satisfaction of both doing the morally commendable thing -- AND WINNING!

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