Sunday, July 1, 2012

Whistleblowing and Publishing: Doing it Wrong

Visit the comments section on any news story about Bradley Manning or Julian Assange, and you'll hear a story repeated over and over by devoted supporters: Bradley Manning is a heroic whistleblower who fulfilled his highest duty as a soldier by revealing war crimes being kept hidden from the American people, and Julian Assange is the brave publisher who shared the shocking truth with the world.  Both are now being unfairly persecuted because the revealed truth threatens the criminals in power, who will surely torture and execute Assange, if only they can get him to Sweden first.

The problem with this story is that none of that is true.

Manning is accused of exceeding his authorized access to government computer networks to copy hundreds of thousands of classified files, which he then gave directly, without reading, to Julian Assange and WikiLeaks.  Manning's supporters will tell you he had no other choice, he had to get the truth about war crimes out to the American people somehow, and WikiLeaks was the only way he could be sure of doing that.

Leaving aside the question of how Manning could possibly have known of crimes shown by documents he didn't actually read, many of his supporters seem completely unaware that soldiers who discover wrongdoing actually have a lot of options to report it.  It's a false dichotomy to claim that Manning's choices were to either keep silent or slip the data to WikiLeaks.  Perhaps non-American supporters can't be expected to know obscure American laws such as the Military Whistleblower Protection Act, but Manning, like any US soldier, would certainly have been aware of it.

When informed of the reporting options that Manning had, his supporters often dismiss them out of hand, claiming that America is so corrupt that if Manning had used the legal whistleblower options, the truth would've been covered up or he would've faced retribution.  The recent experience of Lt. Col. Daniel L. Davis proves that's completely untrue.

In an excellent post on the Empty Wheel blog, Davis's actions are shown in stark contrast to Manning's.  Davis became aware of wrongdoing through the normal course of his duties, he didn't just appoint himself an investigator entitled to hack into and explore whatever files he was curious about.  Once aware of wrongdoing, Davis wrote reports of exactly what was wrong and the evidence that backed his claims, then he submitted them through the same legal channels that were available to, but ignored by, Manning.  These include military Inspectors General, members of Congress, and armed forces investigators, but not random foreigners who happen to run leaking websites.

Davis's reports of wrongdoing were published in the New York Times, Armed Forces Journal, and Rolling Stone, exposing the truth to the public just as well as any WikiLeaks release.  Instead of being arrested and facing a court martial, Davis was invited to speak to members of Congress, who used his information to support their efforts to end the war.  Crucially, because Davis's reports were legal, the focus of the media was on their content, not the fate of the man who revealed them.  By choosing to take the illegal route, Manning ensured that any revelations from his leak would be mere footnotes in the story of the largest theft of classified data in history.

WikiLeaks itself, and Julian Assange, are the subjects of a grand jury investigation which Assange is convinced has already led to a sealed indictment against him.  He bases this belief solely on the contents of one private email written by an executive of the research company Stratfor, even though Stratfor admits its policy is to sometimes give contacts false info in order to see where that false info later turns up, a leak-detecting strategy they call the "Barium Meal." 

Assange was so eager to spread the story of the alleged sealed indictment that WikiLeaks published the email referring to it, along with thousands of others from Stratfor, despite the fact that they were not leaked at all, but stolen by hackers, and despite the fact that Stratfor is not a government agency, so revealing its secrets can't be justified under WikiLeaks' stated mission to "open governments" and show the public what's done in their name.

Assange's fear of a sealed US indictment is the reason he gives for refusing to submit to questioning in Sweden over accusations of sexual misconduct.  Because Sweden once, in 2001, repatriated two Egyptian terror suspects who were later tortured, Assange supporters claim Sweden has a "history" of cooperating with the USA in secret renditions for torture, and that this would be his fate if he went there.  The fact that this incident, one case eleven years ago, caused a huge scandal in Sweden resulting in payments of damages to the victims and changes in Swedish law meant to prevent any such thing ever happening again, and that President Obama signed an executive order ending the use of torture as an interrogation method, is brushed aside by Assange supporters as irrelevant.

Many commentators have pointed out that none of the other publishers who printed the stolen cables are worried about indictments against them, as the First Amendment protects publishers who merely print classified information that is given to them by sources, just as Rolling Stone published the classified version of Lt. Col. Davis's report without facing any charges.  These commentators assume Assange's fear of a US indictment is just a ruse, and that what he really fears is spending up to four years in prison if convicted of sex crimes.  His desperation to avoid this, going as far as taking refuge in the Ecuadorian embassy, seems nonsensical, as his living conditions within the tiny embassy, sleeping on a mattress on the floor with no outdoor recreation, are actually more restrictive than they would be in Swedish prison.

However, just as Manning is not really a whistleblower who knew of specific crimes and reported them the only way he could, evidence indicates Assange may not really be an innocent publisher who did nothing more than print material, with no need to worry about a US indictment.  At Manning's pretrial hearing in December, prosecutors alleged that evidence recovered from his computer shows Assange collaborated with Manning in stealing the files, and that Assange even offered assistance in cracking an encrypted password to facilitate the theft.

This game-changing evidence was widely reported, yet the implications seem to have been largely ignored amid the complexities of Swedish extradition and US court martial proceedings.  Manning's trial will not take place until late fall or winter, but when it does, the evidence which was summarized at the pretrial hearing will be explored in full and judged on its merits.

While it's extremely unlikely there is a sealed indictment against Assange at the present time, grand juries can take over three years to make a decision, and given this new evidence it's likely there will be an indictment against Assange at some point.  Those who continue to support Assange even if he's accused of much more than innocent publishing can take comfort in knowing that an indictment means, by definition, Assange will face a standard civilian trial with due process and the usual agreements not to seek the death penalty as a condition of his extradition.  He will not face any of the extraordinary measures used in the war on terror, or any of the hardships of a military brig or court martial.

Supporters of Manning and Assange are fond of saying history will judge them, smugly certain the final analysis will be a tale of the unjust persecution of heroes.  Looking at the evidence and the choices made, it seems likely history will indeed applaud heroic truth-tellers from this era, but their names will be Davis and Rolling Stone, not Manning and WikiLeaks.

Friday, June 29, 2012

The Problem with Masks

"There are no girls on the internet" is an old joke that reflects a harsh reality.  Though today the number of female users is rapidly increasing, especially on social media, in the early days of the internet women were a very small minority, and this is still true in some areas, such as the hacking and information security communities.  Women who braved the early male-dominated internet faced an intimidating environment, where we could expect to be greeted with "Tits or GTFO," and to be seen as curiosities like dancing bears, rather than being accepted as ordinary members of a community.

Some of us coped by finding communities dedicated to fighting for equality in real life, where males made active efforts to welcome women.  Others coped by becoming excellent at skills respected by the men in their communities.  Still others coped by adopting a protective coloration, deliberately portraying themselves as cartoonish caricatures of women.  When your persona reinforces the stereotypes men hold of women, you're not seen as a threat.  Nobody has to confront or change their unconscious bias in order to accept you, they're free to be amused by the funny dancing bear without the discomfort of wondering what the bear really thinks of them.

The Den Mother, the Submissive Sex Kitten, the Crazy Bitch who can't control her emotions and thus isn't responsible for her actions, these one-dimensional personas can be very successful in protecting a woman in a male-dominated online environment.  By putting on these masks, she may mingle with the worst dregs of the internet unscathed.  She may even be successful in surrounding herself with "White Knights," willing to take down any enemies she points her dainty finger at.  There is a power in this coping strategy, there's no denying that.

The downside of this choice is twofold.  First, when someone deliberately reinforces a stereotype, it makes life harder for everyone else who has to deal with confronting that stereotype.  Second, when people wear masks continually for years, they run the risk of becoming what they pretend to be.

Critical thinking and logical persuasion are not skills that can be maintained while wearing such vapid masks.  These mental skills require frequent exercise through honest debate and the challenge of interacting with others as an equal, without appealing to sexuality, focusing on personal traits instead of the arguments made, or pretending to be so incompetent that normal standards of reasoning should not apply to you.

Avoiding the challenge by infantilizing yourself, responding to serious questions with crude ad hominem insults and childlike expressions, such as "giggles" and silly plays on words, is not only unconvincing, it's self-harmful, denying yourself the vital exercise necessary to maintain the mental skills of a reasonable adult person.

Over time, responding to criticism or questioning in a stereotypically infantilized way becomes a reflex, and the ability to respond any other way atrophies, leaving the person behind the mask unable to construct a convincing, reasonable response to anything, even serious allegations of wrongdoing.  If the facts are on her side, she cannot express them in a coherent way, and must rely on appeals to emotion instead.  If she is guilty, she cannot correctly assess which lies would be believable or avoid telling contradictory stories.

When cyber crime spills over into the real world with attacks meant to subvert the democratic process and coerce elected officials through threats, a persona that requires the wearer to be friends with everyone, unable to choose a side, becomes a huge liability.  It's no virtue to be friends with everyone if that includes those who use fascist tactics to silence opposition and who would replace the rule of law with arbitrary vigilante retribution.  At a certain point, refusing to choose a side is choosing to condone intolerable acts, and "I'm just a woman, how could I know right from wrong?" is not a valid excuse.

Saturday, March 31, 2012

Connection in the Chaos

Nihilists point out that our entire planet is utterly insignificant compared to the size of the cosmos, and one human life barely registers to the Earth as a whole.  We're gone in less than the blink of an eye, in geological time.  While we're here, so many people waste their time on petty amusements, pointless drama, watching fake reality shows instead of expanding their minds or exploring their potential.  Artists are driven to create, tearing out pieces of their souls to forge into works which will be seen by few and understood by even fewer.  The disturbing and discomforting are despised, the familiar and nonthreatening enjoy mass popularity.

What, then, is the point of even continuing to exist?  Why not get it over with and jump straight to the inevitable conclusion of every life?  Or if some inner drive prevents us from doing that, why not blur the lines of a pointless reality, dull the crushing weight of life's meaninglessness with whatever intoxicants we can?

A Christian would answer that this life is a gift, given by a powerful and awful Being, willing and capable of inflicting eternal torment if we fail to show appreciation for it.  We must go on living, terrible as it is, to avoid the worse pain of punishment for trying to escape.  We must do as our Creator bids, because we are owned, like toys, with no right to decide our fate.  An atheist would assert that no such Creator exists,  or would deserve worship if it did.

A Buddhist would say life only becomes suffering when we let ourselves become attached to material things, which are all destined to be lost sooner or later.  They say there is a permanence deep inside that we can connect with, if we still our minds and let go of everything outside.  But then why are we even here, in this place of temporary things?  What is the point of offering these distractions, and wouldn't we be better off with all our senses silenced?

A life devoted to science or math leaves a greater impact than most.  Schoolchildren know the names of the great minds whose theories, written centuries before, led to a world where instead of chopping wood and drawing water, we can sit in comfort, connected to the world.   Radio transmissions fan out across the galaxy, saying "We were here," even if there's no one out there to receive the message.  But in the end, scientists die as suddenly and inevitably as anyone else.  They peer into the foundation of the universe, but it cannot save them.

When we are all alone, these seem like ironclad arguments, no loopholes to the misery.  Then out of the blue, sometimes, there's a connection.  Even across the net, with only words and images, we touch each other and are irrevocably changed.  A voice rises above the babble and exposes the absurdity of worrying about the inevitable, or the past.  Against our will, we're swept away by laughter, confronted with the present moment, the only thing that's really real.

The mathematician Paul Erdos said math is like a great book written by the creator of this universe, and solving problems is like glancing at its pages.  Everything in that book is already written and unalterable; we can only discover it, not write new lines.  If we want something truly new, we must find it in other people.

We can't predict the course of any life.  A man might be born with enough intelligence to be a great engineer, the son of an expert in computer science, but choose to devote his life to making people laugh.  Another might be raised in poverty by a single mother and grow up to be a president.

Even those who think they've failed at life, by some arbitrary measure of fame or wealth, may never know how much their unique perspective touched someone else.  Their mind, their voice, their whole personality could be the sun that lights another's life.  They may not see how they enliven everyone around them, but the loss is obvious when they are gone.  Every one of us lives through a unique series of events, creating a point of view that can never be replaced or duplicated.

All these moments will be lost "like tears in rain," of course, but so will everything else in this physical universe.  There's no such thing as permanence, and yet there's no such thing as the future or the past either.  Each moment is the only moment that exists, and that is what makes them precious.  Even if we are facing a bleak future, with seemingly no hope of recapturing some joy of the past, those moments happened, and at the time they were the whole truth.  They belong to the story of the world forever, even after the people who lived them are gone.

The only certainty is that the future will not unfold as expected.  Every moment, events are set in motion with consequences we can't predict.  The complex web of interconnection may lead to a global economic crash, or an innovation that changes everything.  A nuclear reactor may melt down, or a lab may find the cure for cancer.  A beloved is suddenly gone, or a new adventure begins.  We decide how we react to this constant stream of surprises, retreating inward, lashing out in rage, or throwing up our hands and laughing helplessly.  We don't know ourselves what we'll choose, until the moment comes.  Finding out what happens next is what makes existence worthwhile.

Tuesday, February 28, 2012

Anonymous, WikiLeaks, and Stratfor: Sealed Indictment or Radioactive Leak?

In late December 2011, Anonymous hacked the website of Stratfor, a research and analysis company popular with students and journalists for its free newsletters providing perspective on current events, as well as in-depth and custom reports for paid subscribers.  This was no ordinary Anonymous attack, not just a DDoS to take the site offline temporarily, or a deface to promote an Anonymous video, this hack was a very thorough invasion that stole the entire archive of Stratfor's internal emails, as well as the credit card details of its paid subscribers.  Anonymous then used the credit cards to make a flamboyant series of donations to charity, supposedly totaling $1 million, as part of what they called "Op Robin Hood."  Of course this ultimately hurt the charities involved, as they had to not only return the stolen money but pay transaction fees to do so.

The motive for targeting Stratfor was never clear.  At the time, the only explanation offered by Anonymous was a desire to shame Stratfor for being a "security company" with lax security, but Stratfor is not in the business of computer security.  They focus on actual real-world national security, such as threats of war between nations.  Stratfor's policy of making most of its analysis freely available seems like something Anonymous would admire, not see as evil.  Stratfor isn't known for supporting Israel or holding any other political views that might draw Anonymous ire either.  The whole attack seemed like a lot of work and risk for no apparent reason.  Hacking a bank would make more sense for playing Robin Hood, and hacking an actual computer security company would make more sense for an "AntiSec" goal of exposing incompetent security experts.

Anonymous confirmed that they gave the stolen data to WikiLeaks, which announced this week it will release over 5.5 million internal Stratfor emails.  WikiLeaks justified their actions in releasing this stolen (not leaked) data by calling Stratfor a "shadow CIA," much to the amusement of pretty much everyone who has ever read Stratfor's newsletters.  WikiLeaks' release of these emails at first seemed like Anonymous throwing them a bone, giving them their first major release since the arrest of Bradley Manning, just a desperate bid to remain relevant.

Today, however, a very compelling reason emerged for Julian Assange to want the Stratfor emails: one of the emails allegedly contains a statement, made by a Stratfor employee in January 2011, that the company has a copy of a sealed indictment from a US grand jury charging Assange with crimes.  The existence of such an indictment has never been confirmed, though many people believe there probably is one, given Assange's alleged involvement with Manning's massive data theft.

The likelihood of Stratfor being privy to such an indictment, if it exists, is debatable, but judging by the excited tweets from the @WikiLeaks Twitter account, it seems clear that WikiLeaks staff completely believe the indictment does exist and Stratfor has a copy.  The question now is, when did WikiLeaks come to believe this, before or after the hack?  Eleven months certainly seems like enough time for such a sensational piece of information to make its way from the email recipient to Assange, and for a hack to be planned and carried out.

Is this the ultimate scoop, a random hack that just happened to reveal that a source within the US government is secretly sharing sealed court documents from the most high-profile espionage case of the century with a private think tank, apparently simply so they could gloat about it in one email?  Or is it more likely that a Stratfor employee emailed someone this shocking tidbit as part of their known strategy of sometimes giving false information to people they suspect of being leaks, referred to within the company as a "barium meal"?

Could it be that this particular "barium meal" provided the motive for hacking Stratfor?  What would you do if you were Julian Assange, and you heard through the grapevine that Stratfor had a copy of your indictment, or at least detailed discussions about it, sitting on their less-than-impervious servers?  Would you call on your old pals Anonymous to help you get it?

It's too soon to know what really happened, but it seems like a leak (whether true or false) about Stratfor holding a copy of Assange's indictment would finally provide a plausible motive for a hack that never made sense before.

Thursday, December 15, 2011

Conspiracy: Anonymous, Occupy Wall Street, and "Bob"

Some people think there's a similarity between the Church of the SubGenius and the Anonymous Hive, but although both are obscure internet communities that sometimes have real-life member meet-ups, the philosophies behind them are very different.  No two SubGenii are the same (if any two are too similar, one must go!) while members of Anonymous all wear the same mask, use the same logo, and strive to lose their individuality in a hivemind.

Anonymous follows "V" from the graphic novel/movie "V" for Vendetta.  SubGenii follow the teachings of J.R. "Bob" Dobbs, mythical salesman and UFO contactee.  Anons strive to have no names, be faceless replaceable units.  SubGenii take on extra names, and extravagant descriptive titles to distinguish themselves and brag.

Although some SubGenii vocally support Occupy Wall Street, it is the brainchild of Anonymous, who had been planning "Operation Empire State Rebellion" long before AdBusters thought up the catchier "Occupy!" brand name for the franchise encampments idea.

Many have asked what motivates Occupiers, since they don't have a clear set of goals they're fighting to achieve. What could possibly make so many people so passionate and determined to disrupt travel and commerce, regardless of the harm they cause other people, racking up lengthy arrest records without even knowing what victory would look like?  Why Occupy?

The short answer is, conspiracy theories.  Observing the tweet streams, videos, blogs, and fliers of OWS, it seems clear Occupiers don't offer their own solutions to the problems they complain about because they are under the impression the only thing lacking in our nation is political will.  The US government (and whoever is believed by Occupiers to really control it) could somehow fix the economy, environment, and foreign policy, if it really wanted to, so all that's needed is to put a lot of pressure on the true culprits, to force their hands and make them do good instead of evil.  Then, peace and prosperity for everyone will naturally follow.  No logistical, monetary, or safety concerns figure into Anonymous/OWS plans; it's all about making the "ruling elites" choose to do good instead of evil, by any means necessary.

SubGenius philosophy talks about a vast Conspiracy too.  It does seem sometimes like things couldn't possibly be this bad without someone having acted with deliberate malice.  Global climate change, income inequality, smog, pollution, species dying out, seemingly endless wars, wild market speculation, unjustified prohibitions, these things can seem like a plot, and many internet conspiracy theorists weave colorful explanations that tie it all together in a neat package explaining who to blame for all the world's ills.  They usually just pick whoever they personally hate most, or choose from historical "bad guys" favored by previous people who agreed the world must be run by secret evil cabals, or go with what the voices in their heads advise.

A key SubGenius teaching is that although it may seem like there's a secret cabal coordinating everything, the horrible, real truth is that there is no one at the wheel.  There are countless factions, industries, corporations, political parties, churches, movements, you name it, and they are all trying to get their own needs and goals met, constrained by varying levels of commitment to legal or moral concerns.  No one group controls everything, so there's no particular set of people you could hold accountable and force to put things right in the world.  There is a Conspiracy of Mediocrity, the result of billions of people worldwide cutting corners, being careless or heartless, greedy or close-minded, in a complex interconnected web of commerce and society.  There is no cabal.

If we want change, we have to first figure out exactly what it is that we want.  Then we have to tell other people why it's such a good idea, and convince them, one by one, group by group, to agree.  By congressional bills or a constitutional convention, we have to put our solutions in place using the voting system, which is subject to some manipulation, but not enough to thwart the true will of 99% if they all showed up.

Then we have to hope our solutions work like our theories say they should.  Unintended consequences can be devastating.  That doesn't mean no one should try to fix anything, just that they should carefully think through what they attempt.  Suddenly raising the minimum wage to $20 an hour, for example, could force many small businesses to close.  Eliminating all immigration quotas at once could flood the labor market, making unemployment even worse.  These are the kind of things Occupy should have figured out before they took to the streets to demand public attention.

I love freaky camping, drum circles, and having groovy times with awesome creative people, and it sounds like there was an element of that at OWS camps.  But it's because I love those things that I know that to keep camps sustainable, there have to be clear camp rules, like, number one, camp at a campsite.  You will need clean drinking water, hand & utensil washing stations, sanitary facilities, and protection from the elements, or you will get sick, and that sickness could spread to an entire city.

Other camp rules include not destroying parts of the Earth set aside as protected green space.  If everyone just destroyed grassy land whenever they wanted to camp, the environmental impact would be extremely harmful.  Next, keep track of who is in your camp, and make sure they're okay every day.  Call police if there's theft, rape, or fighting going on, and keep your tents separated with clear paths so that cops or EMTs could make their way through the encampment quickly in an emergency, or so that people could quickly escape if fire broke out.  Make sure no one spends two days dead in a tent because nobody knew they were in there.

I think it would be an awesome idea for people to overcome political apathy by setting up camps at actual campsites, where anyone with a tent would be welcome to stay, meet others, and discuss the issues of our times.  You could even have a cozy central fire that people could warm themselves around as they talk about our options as a nation.  You could use a real stage and ditch the creepy People's Mic, which makes it difficult for speakers to make complex, nuanced points, and for listeners to devote their full attention to listening and thinking over what's said, instead of worrying about repeating correctly.

Of course, such camps could never take the place of internet coordination and meetings, where people from all over the country could make proposals, share opinions, and vote on what the movement should strive for, but physical camps would be a nice enrichment, and a spectacle that would draw attention.  Even if camps were outside the cities, livestream would bring their message to the world.  If the streams showed reasonable people in orderly, legal camps having serious policy discussions, that would likely win a lot of support and change conversations on the right and left, like an interactive reality show for thinking, patriotic people.

It's truly a shame that OWS chose instead to create spectacles of force, declaring they were going to deliberately disrupt the free travel of their fellow citizens, and seize public lands indefinitely, attacking the very foundation of an ordered society so necessary to making rights available to all.  By insisting that it would take force to move them, they created a situation that inevitably led to force.

Those parks and streets do not belong to OWS, they're everyone's, and anyone seizing or blocking them must be removed sooner or later, by force if necessary.  OWS knew that.  They counted on it.  OWS wanted to create pictures and videos that looked like 1968, but since there's no pressing issue like the military draft, they had to make do with indignantly spouting "anarchist philosophy" jargon to explain why they shouldn't have to explain why they're in the street or what would make them go back home.

In my opinion, as a SubGenius Reverend, that is what we call Slack Vampirism, people amusing themselves, even holding dance parties, at the expense of other people's pain.  Thousands of citizens in dozens of cities have been trapped in their cars on roads, sometimes for hours, their right of way completely violated by people aiming to deliberately disrupt the city's travel.

It's bad enough when daily incompetence or an accident delays people, a group doing it on purpose, just to get attention for their signs, is really too much to expect people to accept.  There is no First Amendment right to do that; it is shamefully selfish behavior, as is setting up your private dwelling in public parks.  That is not what parks are for. The entire point of having a "commons" is that that land cannot be anybody's private house, it's for all to share.  Seizing it for yourself to live on, then damaging it, is stealing from the public, and it is not "peaceable assembly" no matter how much yoga or dubstep rave you do there.

Friday, December 2, 2011

Occupy Wall Street: The 1st Amendment is NOT Your Permit

For two months now, many Occupiers and their supporters have repeated "The First Amendment is our permit!" to explain why they reject applying for parade or camping permits for their demonstrations, instead marching into busy streets with no warning, and camping in parks for as long as they wish without following any health or fire codes.

Occupiers believe that all local laws and regulations are "trumped" by the 1st Amendment, and therefore anyone who tries to break up their camps or clear their marches from streets is conspiring to deny them something they are entitled to by the highest law in the land.

Occupier beliefs lead to conspiracy theories

This belief in a constitutional right to block traffic and camp in parks is the root cause of the recent dissension over Naomi Wolf's virally popular article accusing the federal government of directing a crackdown on Occupy camps in an attempt to crush the movement.  Ms. Wolf speculates that Congress has a motive to silence OWS, because Occupiers recently began expressing anger over some Congressional financial trading that is legal, but widely viewed as unethical.

Essentially Ms. Wolf believes Congress feels so threatened by the potential loss of this trading revenue that they abused their oversight authority and usurped executive branch power to give direct orders to a law enforcement agency for the purpose of silencing the free speech of American citizens.

This is quite a shocking and serious allegation from Ms. Wolf, and AlterNet's Joshua Holland stood up for basic journalistic integrity by pointing out that Ms. Wolf has absolutely no evidence to support her theory, aside from reports that federal law enforcement agencies gave advice to local city police on the latest "best practices" for dealing with crowds.  Mr. Holland pointed out that this type of advice and consulting happens all the time in law enforcement, and is not evidence that anyone in Congress or any other part of the federal government had an ulterior motive of any kind.

This debate went on for another round of articles by Ms. Wolf and Mr. Holland amid a general firestorm of blogs weighing in for one side or the other.

Reader reactions to Mr. Holland's original article demonstrate the widespread belief among Occupy supporters that OWS's actions are not crimes, but are expressive conduct protected by the 1st Amendment.  Since Occupiers truly believe they are not doing anything legally wrong, their only explanation for cities closing down their camps is a conspiracy to silence their message.

Occupy supporters replying to Holland's article genuinely did not care whether DHS merely advised local police on best practices or unscrupulously commanded local police to act for a greedy ulterior motive, because they reject the very idea that any law enforcement at any level has a valid legal right to clear camps or stop Occupiers from blocking streets.

Is Occupation a right?

There is more to the Constitution than just one amendment.  OWS can't claim protection from one part of the document but ignore the rest of it.  Article III is just as valid as the 1st Amendment, and it says:

"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."
This means that we do not interpret laws on our own, then band together with those who self-affiliate with our view, and proceed to act as if our consensus interpretation of law were the legally-binding opinion on it.  Instead, we appoint judges, experts whose job is to interpret laws impartially, and we are all bound by their decisions equally.

We're free to change the laws anytime we like, just by voting in people who support our proposed changes, and we can even change the Constitution either through Congress or directly by Constitutional Convention, but for the existing laws at any time it is the judges who decide what the law means.  In the case of the Constitution, the Supreme Court has absolute authority on interpretation.

What does SCOTUS say about the activities that Occupy Wall Street groups have engaged in nationwide?  It turns out this is not the first time anyone has thought of these tactics, and there is a long series of opinions from the Supreme Court about exactly the kinds of activities OWS claims are its constitutional right.

Blocking traffic and entrances

In 1965 the landmark free speech case Cox v. Louisiana overturned a civil rights protester's conviction because the law that he was accused of violating was unfairly vague.  This upheld the important principle that local permit and traffic laws must be fair and specific, so everyone can understand exactly what is and isn't permitted on the streets.

The decision also affirmed the principle that disrupting the lives of others is not in any way protected by the 1st Amendment, no matter how much protesters feel that would be expedient for their cause.

Here's what SCOTUS has to say about the idea that the 1st Amendment is your permit to march wherever and whenever you feel like, ignoring local laws:

The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations. See Lovell v. Griffin, supra, at 303 U. S. 451Cox v. New Hampshire, supra, at 312 U. S. 574Schneider v. State, supra, at 308 U. S. 160-161;Cantwell v. Connecticut, supra, at 310 U. S. 306-307; Giboney v. Empire Storage & Ice Co., 336 U. S. 490Poulos v. New Hampshire, supra, at 345 U. S. 405-408; see also Edwards v. South Carolina, supra, at 372 U. S. 236
 [emphasis mine]

Okay, blocking streets and buildings is right out.  What about camping?  

SCOTUS settled this in 1984 with Clark v. Community for Creative Nonviolence.  This case quoted a definition of camping as digging holes, erecting structures, placing bedding on the ground, storing personal items, cooking, and generally using an area for living accommodations, all of which Occupiers are clearly doing at their camps.

The Court found that since these activities damage parks and prevent other people from using the shared space as it was intended to be used, it is constitutionally acceptable to ban camping in a park, as long as the rule is the same for everyone who wants to camp:

Damage to the parks, as well as their partial inaccessibility to other members of the public, can as easily result from camping by demonstrators as by nondemonstrators. In neither case must the Government tolerate it. All those who would resort to the parks must abide by otherwise valid rules for their use, just as they must observe the traffic laws, sanitation regulations, and laws to preserve the public peace. This is no more than a reaffirmation that reasonable time, place, or manner restrictions on expression are constitutionally acceptable.
 [emphasis mine]

Occupiers claim a precedent

Occupiers justify their behavior by citing a case which they claim proves that camping in parks is a protected right.  In 2000 a federal district court ruled in Metropolitan Council, Inc. v Safir that "symbolic sleeping" was a protected form of expression.

How similar is symbolic sleeping to Occupy Wall Street's tent cities?  Not very.  Here's what Metropolitan protesters asked for a permit to do:
The vigil participants will lie side by side, perpendicular to the apartment building on this block, covering no more than half of each sidewalk's width. The sidewalk along East End Avenue is sixteen feet wide; the sidewalk along 88th Street is fifteen feet wide. The protesters have agreed to occupy only 7.5 feet of each sidewalk's width. The protesters will thus leave clear for pedestrian use about half the width of each sidewalk (8.5 feet of width along the East End Avenue side, and 7.5 feet of width along the 88th Street side). The length of the area to be covered by the bodies will not exceed 75 feet (three feet per person). Plaintiff will not block either of the entrances to the apartment building, entrances that are located approximately 60 feet north of the intersection and 170 feet to its west. Plaintiff will regulate the conduct of vigil participants by providing event marshals who will ensure that participants stay within the designated space, coordinate their activities, and respond to any emergencies. During the vigil, its purpose will be communicated by signs and printed literature.
 [emphasis mine]

The protesters in Metropolitan acknowledged that their protest had no right to disrupt the lives of others by even blocking a sidewalk, let alone a road or an entire park.  They acknowledged the right of the city to issue permits in the first place, instead of claiming such permits are unconstitutional.

Because of this basic respect for other citizens' rights, and for the social order necessary to make rights available to everyone, the protesters in Metropolitan won and got permission to do their symbolic sleeping demonstration, which was limited by the permit to a specific time frame.  This is nothing like the Occupiers, who block streets, stores, bridges, and ports, refuse to disperse when asked by authorities, and say they will continue their actions indefinitely, or until someone forces them to stop.

Were Occupiers misled about the law?

Occupiers originally acknowledged that the type of activity protected by Metropolitan, taking up no more than half a sidewalk without erecting structures or using park space, was all they had a right to do.  The original "US Day of Rage" flyer clearly warned participants that symbolic sleeping was the limit of legal activity, and that the type of tent cities which eventually emerged in Zuccotti Park and elsewhere were not protected as "symbolic sleeping."

However, this flyer also contains the seeds of the current Occupier rejection of all "time, place, and manner" restrictions as unconstitutional.  The flyer asserts that our current government, in its entirety, is completely corrupt, and thus illegitimate, and that Occupiers are exercising the powers asserted by the American Founders to throw off a tyrannical government:

If the NYPD kettle or blockades every PUBLIC street in Manhattan, Queens, Brooklyn, or the Bronx, they only reveal what we at US Day of Rage already know: Our government is corrupt, its powers are in the hands of treasonous and tyrannical forces, and, together, WE THE PEOPLE will prevail.

The American Revolution is alive and well. It's a group of non-violent citizen nobodies who believe in the radical notion that Americans have a right to freedom of speech and the right to peaceable assembly, in deed the right to engage in politics through free and fair elections unsullied by disloyal, incompetent, and wasteful special interests that are destroying our democratic republic and preying on the resources and spirits of citizens. 

[emphasis in the original]

Left's Tea Party? Or live-action roleplay gone horribly awry?

I have to wonder how many Liberal pundits who've been championing OWS ever read that original USDOR flyer, which was one of the main promotional  statements for recruiting the first Occupiers over the internet, before any mainstream news or progressive organizations picked up the story.

Perhaps if political analysts had read the flyer, they wouldn't be at such a loss to understand why OWS won't move on from the "camping phase," or why Occupiers think DHS advising city police on how to deal with an unruly crowd is just as diabolical as Wolf's theory of Rep. Peter King abusing his oversight in order to command DHS agents to protect his private gravy train by "silencing the movement."

Occupiers aren't just mad about the economy, they also see themselves as asserting the sovereign people's right to overthrow tyranny, and thus as justified to act outside the framework of laws that other protesters have to follow.  That idea is never going to win the hearts and minds of centrists, moderates, or reality-based people of any kind.  The idea of fighting an overarching, all-powerful conspiracy and forcibly "taking back America" for "real Americans" or "the 99%" is just as creepy a fantasy scenario coming from the far left as it is from the far right, and it has no place in our political discourse.

Friday, November 4, 2011

Occupy Wall Street: Inconvenience is the Point

When confronted with the fact that the Occupy protests are violating the rights of other people to freely travel, enjoy the public parks, and do their jobs, Occupiers often answer that disruption and inconveniencing others is the point of the protest, as exemplified by one commenter at the San Francisco Chronicle, who said "Inconvenience is the entire point, because otherwise no one listens and no one CARES!

This is not an isolated viewpoint, it is repeated by many in the Occupy movement whenever seriously challenged on their illegal and disruptive methods.  One supporter, a union leader, has called for "more militancy" of blocking bridges and occupying banks.  A protest sign that went viral reads "Sorry for the inconvenience/we are trying to change the world."  Countless tweets enthusiastically repeat the idea, like this one, stating again that "the point of protest" is to inconvenience other people, and this one stating that inconvenience is the protesters' "weapon," justified because they don't have a "$100k lobbyist" (despite the fact that with over $500k in the bank they could afford five such lobbyists).

This idea is deeply disturbing.  The First Amendment includes the word "peaceably" specifically to exclude behavior that disturbs the peace or violates other people's rights.  Disrupting the lives of others is in no way a peaceable protest or protected by the First Amendment, yet this idea is spreading like wildfire through the Occupy community, justifying more and more violence and property destruction like that seen in Oakland this week.  What started as a group that claimed the First Amendment gave them the right to seize property and block travel is fast becoming a group that openly declares disruption is the entire point of their assembly.

Many Occupiers insist that "the First Amendment is their permit," claiming all Supreme Court interpretations of that Amendment are invalid, and only the words of the Constitution, as interpreted by themselves, apply to them.  If so, then by their own logic they are violating that permit by protesting the banking industry, while the Amendment only covers protest against the government.

The fact that in the modern era people often assemble to protest against corporations, instead of the government, is an expansion of the basic right in the Constitution, allowed by the evolving understanding of free speech that has built up over the years as the Supreme Court has weighed in with interpretations.  You cannot claim the expanded right to protest a corporation instead of the government while ignoring all the other interpretations made by the Supreme Court, which firmly state that time, place, and manner restrictions, like those forbidding camping, are reasonable and not violations of the right to free speech.

But forget morality and the law, let's look at the effectiveness of causing disruption.  The Occupier quoted above stated that this disruption is necessary to make people "listen" and "care."  Violating their rights certainly does make people notice you, but does it make them care?  This is the point where Occupy and reality part ways, as Occupiers swallow the idea that by hurting people you can force them to agree with you.  It's as if Occupiers are hoping to harness the Stockholm Syndrome, where hostages become psychologically attached to the thugs who hold them hostage.  In some cases this appears to be working, as Mayor Jean Quan of Oakland reversed her decision to end the Oakland encampment after negative press, and now seeks to do whatever it takes to allow the encampment to continue, even offering to move the campers to a more permanent camp, presumably at the city's expense.

Attempting to induce Stockholm Syndrome may work on someone like Quan, who apparently considers positive press more important than her duty as an elected official, but the overall American character is deeply devoted to the ideal of not negotiating with terrorists.  In cities held hostage to the Occupy camps, citizens are not starting to identify with their Occupiers, they are growing more vocal in their determination to restore law and order.  Comments in USA Today, a non-partisan newspaper popular with the "silent majority" of Middle America, are overwhelmingly opposed to the disruptive tactics of the Occupy groups.  The violence in Oakland has only intensified this sentiment, and more disruptions will do the same.

It is not possible to convince Americans that your cause is noble by disrupting their daily lives, though it may succeed at getting you in the news.  Occupiers, both the pacifist and black bloc wings, are agreed on the strategy of inconveniencing others.  Their only disagreement is how much disruption they should cause.  But while Occupiers squabble over this among themselves, the rest of America is not impressed by this new idea that "inconvenience is the point of protest."  It's nothing more than a narcissistic pretext for bullying, and nobody is buying it.