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CIA Director Entry Number 2: Mike Morell, Fabulist

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As Eli Lake wrote the other day, there are three men angling to be CIA Director under President Hillary: John Brennan, Mike Morell, and Mike Vickers.

I’ve already explained what is terrifying about Vickers’ audition to be CIA Director: after laying out the Hillary as Commander-in-Chief case (which appears to be mandatory for these things), Vickers then talks about how we need to escalate our wars and belligerence.

To be sure, we will need more aggressive counterterrorism strategies, stronger support for the Syrian opposition as the only plausible counterweight to authoritarianism and extremism within Syria, more effective counters to Iranian and Russian expansion, and better strategies for deterring and competing with China over the long term.

Henceforth, I will refer to Vickers as The Escalationist.

Today, Mike Morell submitted his audition to be CIA Director.

As Vickers did (these do seem to be formulaic), Morell lays out his extensive bipartisan past (Vickers claims service under 4 Republican and 2 Democratic Presidents, Morell claims 3 of each), then talks about how serving with Hillary convinced him she has the temperament to be Commander-in-Chief.

I spent four years working with Mrs. Clinton when she was secretary of state, most often in the White House Situation Room. In these critically important meetings, I found her to be prepared, detail-oriented, thoughtful, inquisitive and willing to change her mind if presented with a compelling argument.

Like Vickers, Morell lauds Hillary’s courage in pushing for the raid that killed Osama bin Laden.

Mrs. Clinton was an early advocate of the raid that brought Bin Laden to justice, in opposition to some of her most important colleagues on the National Security Council.

[snip]

I never saw her bring politics into the Situation Room. In fact, I saw the opposite. When some wanted to delay the Bin Laden raid by one day because the White House Correspondents Dinner might be disrupted, she said, “Screw the White House Correspondents Dinner.”

Disrupting White House Correspondents Dinner to kill someone would count as politics? Really?

Also like Vickers, Morell then lays out Trump’s lack of qualification for the job, both in terms of background and temperament.

But Morell’s gimmick — the brand that sets him apart on this quest to be CIA Director — is not an explicit call for escalation, but instead the specific gloss he puts on Trump’s soft spot for Putin. After portraying Trump’s careless claims as full endorsements of Putin, Morell claims Trump has been recruited by the old KGB officer, albeit unwittingly.

Mr. Putin is a great leader, Mr. Trump says, ignoring that he has killed and jailed journalists and political opponents, has invaded two of his neighbors and is driving his economy to ruin. Mr. Trump has also taken policy positions consistent with Russian, not American, interests — endorsing Russian espionage against the United States, supporting Russia’s annexation of Crimea and giving a green light to a possible Russian invasion of the Baltic States.

In the intelligence business, we would say that Mr. Putin had recruited Mr. Trump as an unwitting agent of the Russian Federation.

Don’t get me wrong. I’m all in favor in making political hay out of Trump’s call on Putin to hack Hillary, especially coming as it does from someone (unlike Jake Sullivan and Leon Panetta) without a known history of mishandling classified information.

But that line? “recruited Mr. Trump as an unwitting agent of the Russian Federation”? That’s all about the clicks, and it has been serving splendidly. Just like “Slam Dunk” was a nifty line.

In a piece auditioning to be CIA Director, I’d prefer someone stick more rigorously to the truth. Trump is an apologist for Putin, undoubtedly, but there’s no more evidence Putin has recruited Trump (unwittingly) than there is, say, the Saudis have recruited Hillary. They’re all just picking the assholes they champion, with Hillary picking the assholes we’ve long championed.

Then again, this is not the first time Morell has stretched the truth a bit — up to and including on torture, so we shouldn’t be surprised by the tactic.

So there you have it: The Escalationist versus The Fabulist, your first two contestants on the Price is Right CIA nomination competition.

Sadly, we probably won’t see something quite so explicit from Brennan (though it would be amusing to see if a third endorsement hewed so closely to the same script as the other two), so we’ll just have to accept Lake’s “drone warrior” brand for him.

What Price Victory?

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Virtually the entire political class has now united to defeat Donald Trump, with Morning Joe today staging a Michael Hayden appearance that served largely to allow Scarborough to tell the story of Trump asking three times in a foreign policy briefing why the US couldn’t use its nukes. As Dan Drezner pointed out on Twitter, Scarborough says the event happened months ago — when the primary was still going on — but has just now staged its telling.

Beating Donald Trump is important. He’s a racist who aims to win by promising white working class people they can resume persecuting people of color again, and he is dangerously inconsistent. That said, he does want to spend lots on infrastructure and protect workers from the ravages of globalization, something often forgotten in depictions of him as entirely policy free.

But the transpartisan obsession with beating Trump has largely applauded two developments that, for liberals, for democrats, for those who believe in peace, for progressives, should be a worry.

First, the Neocon establishment has come out in enthusiastic support for Clinton, with ideologue Eliot Cohen orchestrating serial efforts (one that even includes John Yoo!!) to oppose Trump. They point to Trump’s erratic nature and more recently the theories of Putin’s influence. They do so even in the face of a report that Paul Manafort, through whom any Putin influence would be managed, is checking out.

I exchanged messages Tuesday evening with a longtime ally of Trump campaign manager Paul Manafort, whom I asked about who was calling the shots in the campaign. The response indicated that Manafort, a veteran of Republican politics brought in this spring for the transition from primaries to the general election, has lost control over his candidate.

“Manafort not challenging (Trump) anymore,” Manafort’s ally wrote. “Mailing it in. Staff suicidal.”

I’m getting whiplash following the Manchurian Trump stories. Maybe the ones suggesting Bill Clinton was behind the Trump run are the true ones after all.

And even while the focus has been on Russia’s alleged influence with Trump, there has been no focus on Hillary’s unquestioning support of Saudi Arabia (the country that had ties to 9/11) and Israel. Or on Hillary’s equally troubling policy proposals, such as starting a No Fly Zone over Russian planes.  As Will Bunch noted in a great column, Democrats have become the party that shuns people who chant No More War.

The delegates didn’t hear from an Andrew Bacevich or the equivalent of James Madison, but they did get Panetta, who — as noted in this excellent analysis — has supported expanded war powers for the White House, failed to push for real accountability on Bush-era torture, and once suggested that “a 30-year war” will be needed against terrorism. Was it really rude for some of the DNC delegates to chant “no more war!” during Panetta’s speech? Or were some citizens desperately trying to be heard with a different point of view, in a nation so eager to squelch any public debate?

It should be a scandal that the United States drops bombs from flying death robots or our obscenely expensive military jets over countries like Libya, swaths of Africa, or Syria based only on a 15-year-old congressional resolution passed after an attack carried out mostly by Saudi Arabians loyal to a terrorist group that barely exists in 2016. But we’re afraid of any frank discussion of that, or the recent admission by the Obama administration that U.S. military actions in nations with which we’re not technically at war have killed 116 innocent civilians. That’s a number that experts find ridiculously low, by the way, and doesn’t as include as many as 85 Syrian civilians who were killed in late July by a U.S. airstrike — a story that was all but ignored in the media. Even if you strongly believe that such collateral damage is necessary to defeat international terrorism, chanting “USA! USA!” to support militarism is both jingoistic and crudely callous toward the dead.

Not only has Hillary gotten the support of the people who brought us into Iraq based on a lie (she told her own little stretchers to get us into Libya), but we’re now drowning out any voice for peace.

Then there’s the parade of heinous billionaires Hillary has rolled out, with Mark Cuban, Mike Bloomberg, and now Meg Whitman. NYT’s coverage of Whitman’s announcement emphasizes that Hillary has been courting Republican billionaires since before she finalized the nomination and that Hillary’s pick of the pro-TPP pro-Wall Street Tim Kaine is what sealed the deal for Whitman.

Whitman, who said she would remain a Republican, brings with her a considerable network of contributors, some of whom she said were open to giving to Mrs. Clinton. She said she was willing to campaign for Mrs. Clinton, said she would do her best to gather checks for her campaign and indicated she would personally give to both Mrs. Clinton and her affiliated “super PACs.” An aide to Ms. Whitman said she would personally give at least an amount in the “mid-six figures” to the Clinton effort.

While Democrats openly appealed at their convention last week to Republicans uneasy with Mr. Trump, Mrs. Clinton and her top supporters have been making a similar cross-party pitch in private since before the Democratic nomination fight even came to its conclusion.

[snip]

She said she had told Mrs. Clinton that she wanted to see the two parties’ conventions and assess the running mates that each nominee chose before making her decision. When Mrs. Clinton selected Senator Tim Kaine of Virginia, a consensus-oriented figure, “that was a positive for me,” Ms. Whitman said.

Whitman’s nod to Kaine is of particular concern to me, as Democrats downplayed his anti-choice and pro-business policies, at least in public, until after the convention. Now, if anything happens to Hillary (who has some dangerously unhinged enemies), we’ll basically have a moderate Republican running the country.

It’s not just that Hillary has secretly been courting oligarchs since before she cemented the nomination. It’s that her post-convention politicking has focused on it, as if the approval of oligarchs is what it will take to win in midwest swing states.

The guy who will likely become Majority Leader is even more aggressively pursuing typical Republican voters (though this view — admittedly filtered through the potentially inaccurate National Review — has some huge logical contradictions, not to mention an odd idea of what it would take for Democrats to continue to win Illinois).

“No guarantees, there never are, but the odds are more like than not that we will take back the Senate,” Sen. Chuck Schumer said at a forum sponsored by the Washington Post Thursday afternoon. Schumer will be the next majority or minority leader of the Senate Democrats, depending upon how November unfolds. He suggested that the electorate’s sense of economic gloom was actually working to his party’s advantage: “The electorate is moving in a more Democratic direction. When middle class incomes decline, people tend to move in a more progressive direction.”

Schumer’s optimism is driven more by national demographics than by the specific traits of his candidates. He contends that Millennials, or voters aged 18 to 35, will be the largest age group voting in this year’s electorate, even if they don’t turn out in massive numbers.

“The number one factor in whether we retake the Senate is whether Hillary Clinton does well, and I think she’s going to do really well,” Schumer says of his former fellow New York senator. He notes that Senate Majority Leader Mitch McConnell urged Senate Republicans in difficult races to localize their elections, rather than get too tied to Trump’s positions and comments and scoffs, “Sorry, Mitch, this is a national election if there ever was one.”

At least publicly, Schumer has no worries about his party’s dwindling fortunes among working-class white voters. “For every blue-collar Democrat we lose in western Pennsylvania, we will pick up two moderate Republicans in the suburbs in Philadelphia, and you can repeat that in Ohio and Illinois and Wisconsin.”

Democrats, it appears, want to become the party of the Republican soccer mom, which may work well with the bellicose warmongering, but which seems to view economic malaise as an opportunity rather than a problem.

So yeah, by all means, let’s beat the orange crazy man.

But let’s also be cognizant of the more politically palatable craziness that gets embraced in the process.

Waving the Constitution at Those Who Ignore It

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I waved my pocket copy of the Constitution at Nancy Pelosi on July 19,2008. Khizr Khan waved his at Donald Trump on July 28,2016.

I waved my pocket copy of the Constitution at Nancy Pelosi on July 19,2008. Khizr Khan waved his at Donald Trump on July 28,2016.

In real time Thursday night, I caught only the final few seconds of Khizer Khan’s powerful speech at the Democratic National Convention in Philadelphia. Through the rest of Thursday and Friday, more and more of the details of the speech flitted through my Twitter stream and then my heart was warmed when I saw photos of Khan pulling out his pocket copy of the Constitution and waving it at Donald Trump. Almost exactly eight years ago, I had done the same thing, waving my pocket copy at Nancy Pelosi, who then was Speaker of the House and appearing at Netroots Nation in Austin.

Khan was confronting Trump about his campaign in which he had noted that “Trump consistently smears the character of Muslims. He disrespects other minorities, women, judges, even his own party leadership. He vows to build walls and ban us from this country.” (Quotes come from this copy of Khan’s transcript.) Khan then continued, presumably in reference to banning Muslims from the US: “Donald Trump, you are asking Americans to trust you with our future. Let me ask you: Have you even read the U.S. Constitution? I will gladly lend you my copy.”

In my case, as I noted here and then in a follow-up a couple of months later here, I was urging Pelosi to act on the clear evidence that the George W. Bush administration had committed war crimes including torture. Sadly, as we now approach the end of two terms with Barrack Obama as President, no significant Bush Administration official has faced any consequences for the torture and other war crimes carried out in our name. Further, despite clear-cut evidence of many crimes by banksters in the massive foreclosure fraud crisis that dispossessed a significant proportion of the US middle class, no significant prosecutions have been undertaken by the Department Formerly Known as Justice.

Khan is so right to wave the Constitution in Trump’s face. Note that a central feature at recent Trump rallies has been endless chanting of “Lock her up”, calling for prosecution of Hillary Clinton for crimes associated with her use of a private email server (and presumably also for Benghazi!!1!) while serving as Secretary of State.

And that is where I see potential huge danger for our dear Constitution. We already have seen failure to prosecute crimes of tremendous impact to the world and to ordinary citizens here at home. Should Trump win, how could a “Justice Department” that already has shown a willingness to ignore the law in response to the desires of two presidents in a row refuse Trump’s insistence that Clinton be incarcerated through massive overcharging of any technical violation (if it even occurred, which is a huge stretch on its own) on the email front and totally fabricated charges on Benghazi.

Thank you, Khizr Khan for reminding our country that we are founded on what should be a sacred document that lays out how we should establish justice. And thank you for the sacrifice of your son Humayun, who was lost while taking part in an ill-advised war in which many of the war crimes discussed above were carried out.

Here is the full video of Khan’s speech. Standing next to him is his wife, Ghazala Khan.

Chris Christie and Karl Rove’s US Attorney Project

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The Republicans were supposed to talk about how they plan to Make America Work Again last night. And I supposed Paul Ryan — and to a lesser extent Mitch McConnell, when he wasn’t being booed — presented a vision of how they think Republicans run the economy. That vision doesn’t actually resemble the protectionist big government approach Donald Trump has been running on. But given the revelation that Trump offered to let John Kasich run both domestic and foreign policy if he would be his VP candidate (Kasich was still reluctant), perhaps we should focus more on how Mike Pence wants to suffocate the economy.

Instead, as most people have focused, Republicans continued to attack Hillary (Hillary continues to attack Trump, though I suspect she will focus somewhat more on policy next week than Republicans have thus far). Many people have unpacked Chris Christie’s rabble inciting witch hunt last night, but Dan Drezner backs his review of it with some data on the risks to democracy (click through to read all of, which is worth reading).

Gov. Chris Christie’s speech garnered particular attention. It triggered similar reactions from The Weekly Standard and Vox, two outlets not known to agree on all that much.

The climax of Christie’s speech was a call-and-response with the crowd listing Clinton’s various misdeeds.

[snip]

Indeed, political events in both Turkey and the United States makes one somewhat concerned about the future of democracy as a political institution. Francis Fukuyama has banged on in recent years on the problems of political decay in the advanced industrialized democracies. He’s a bit more sanguine about this election cycle than most, but the erosion of accepted norms of political behavior is an extremely disturbing trend. Donald Trump (and his campaign manager) certainlyepitomizes this contempt for such minor things as the Constitution and the rule of law:

As the cherry on the top of this worry sundae, the Journal of Democracy has just published an article by Roberto Stefan Foa and Yascha Mounk entitled, “The Danger of Deconsolidation: The Democratic Disconnect.” Foa and Mounck have previewed their findings here and here over the past year, and their thesis is pretty damn sobering: 

[snip]

What we find is deeply concerning. Citizens in a number of supposedly consolidated democracies in North America and Western Europe have not only grown more critical of their political leaders. Rather, they have also become more cynical about the value of democracy as a political system, less hopeful that anything they do might influence public policy, and more willing to express support for authoritarian alternatives. The crisis of democratic legitimacy extends across a much wider set of indicators than previously appreciated….

In theory, it is possible that, even in the seemingly consolidated democracies of North America and Western Europe, democracy may one day cease to be the “only game in town”: Citizens who once accepted democracy as the only legitimate form of government could become more open to authoritarian alternatives.

[snip]

By all means, read the whole thing. As an American, I find it particularly troubling that Ronald Inglehart’s rebuttal essay says that Foa and Mounck are exaggerating because this phenomenon is limited to the United States.

Foa and Mounck’s data ends in 2010. One could argue that things have only gotten worse since then, as Christie’s show trial speech suggests. But if I have a sliver of optimism, it is that the Trump campaign is America’s moment of staring into the anti-system abyss and seeing the ugliness that would await.

I will be curious if, after this election cycle, there is a greater appreciation for the democratic institutions that have made America great for more than a century.

I’m sympathetic to the notion that democracy is becoming delegitimized here and elsewhere, and in part blame the elites who have divorced policy outcomes from democratic accountability and therefore from benefits for average voters.

But the Chris Christie witch hunt is a special case. After all, this is a former US Attorney, a former top embodiment of America’s criminal justice system (and Christie’s attack was far more irrational than that of another US Attorney, Rudy Giuliani, earlier in the night).

And he’s not just any US Attorney. He’s a US Attorney who got that role largely off his fundraising for George W Bush, even in spite of concerns about his experience. Christie was, in some ways, one of the early test cases for Karl Rove’s theory that US Attorney positions would make great launching pads for further political advancement — and it worked, to some degree. After prosecuting a bunch of Democrats in an equal opportunity political corruption state, Christie won the governorship and started abusing his power, most spectacularly with Bridgegate. He came close to winning the VP nomination with Trump (and if last night is any indication, perhaps he should have). Along the way he pioneered Deferred Prosecution Agreements, making monitor positions another piece of pork for loyal Republicans.

In other words, Christie is the personification of a Republican effort to politicize a position that — while political — had previously been treated with some respect for precedent and neutrality.

No longer. Last night, Christie broke down all remaining barriers between law enforcement and political prosecution. It was the inevitable outcome of Rove’s little project.

Like Drezner, I’m worried generally about the state of our democracy (though unlike him I think the elite have a lot to answer for letting it happen). But the Christie witch hunt is a development above and beyond that general trend.

Hillary Promises Not to Order the Military (!?!) to Torture

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Though I agree with the general sentiment that Donald Trump should not be trusted with America’s nuclear codes, there’s a lot I loathed in Hillary’s foreign policy speech yesterday.

Her neat espousal of American exceptionalism, with the specter that another country could make decisions about our lives and jobs and safety, is especially rich coming from a woman who has negotiated several trade deals that give corporations the power to make decisions about our lives and jobs and safety.

I believe with all my heart that America is an exceptional country – that we’re still, in Lincoln’s words, the last, best hope of earth. We are not a country that cowers behind walls. We lead with purpose, and we prevail.

And if America doesn’t lead, we leave a vacuum – and that will either cause chaos, or other countries will rush in to fill the void. Then they’ll be the ones making the decisions about your lives and jobs and safety – and trust me, the choices they make will not be to our benefit.

That is not an outcome we can live with.

The rest of her riff on American exceptionalism — with weird claims like, “America’s network of allies is part of what makes us exceptional” and “Allies provide staging areas for our military” — is worth an entirely separate post.

Her cavalier invocation of dead bodies and prolonging depressions exhibits a lack of self-awareness.

I’m frankly baffled by her description of her plan to defeat ISIS, as well as her warnings elsewhere about allowing terrorists in Syria or emboldening ISIS, both of which past Hillary actions have done.

We need to lash up with our allies, and ensure our intelligence services are working hand-in-hand to dismantle the global network that supplies money, arms, propaganda and fighters to the terrorists. We need to win the battle in cyberspace.

[Applause]

And of course we need to strengthen our defenses here at home.

That – in a nutshell – is my plan for defeating ISIS.

Hillary never talks about how she’ll get the Saudis — one of those allies she wants to “lash up with” — to stop fostering terrorism. That seems like a first step.

I’m even more curious what she intends with “strengthening our defenses here at home,” especially coming just lines after she falsely claimed San Bernardino was an ISIS attack? We already arrest scores of people for their support for ISIS, for doing things like RTing ISIS propaganda. To do much more — and to find the San Bernardino couple before they attacked — would have required far more domestic spying. Is that what Hillary has planned?

But here’s the thing that most disturbs me about her hawkish speech. Note how she attacked Trump for his embrace of torture.

He has said that he would order our military to carry out torture and the murder of civilians who are related to suspected terrorists – even though those are war crimes.

[snip]

So it really matters that Donald Trump says things that go against our deepest-held values. It matters when he says he’ll order our military to murder the families of suspected terrorists. During the raid to kill bin Laden, when every second counted, our SEALs took the time to move the women and children in the compound to safety. Donald Trump may not get it, but that’s what honor looks like.

Two times in a formal, pre-written speech, delivered with tele-prompters, Hillary claimed Trump had said he’d order our military to carry out torture and murder of civilians. But that’s not what he said. He spoke generally, and when speaking of torture he has talked about “interrogators,” without reference to agency. Sure, that could mean DOD (and some DOD interrogators did torture under George Bush). It could also mean the FBI, the agency which currently leads high value interrogations and which John Brennan has said must have its “own processes and procedures and laws that govern its activities,” separate from the techniques permitted in the Army Field Manual.

But the assumption of everyone listening to Donald Trump’s promise to torture was that he’d ask CIA to do the business. Both former CIA Director Michael Hayden and current CIA Director John Brennan thought that’s what he meant, anyway.

While Hillary was Secretary of State, the government killed the son of Anwar al-Awlaki, effectively murdering the family of a suspected (dead) terrorist.

It’s bad enough that she’s lecturing Trump about our deepest-held values. But she’s also not promising to the one thing she appears to be promising: refusing to order the CIA — not the military — not to torture.

Imperialist Robert Kagan Disavows the Bureaucracy of Immense American Presidency He Championed

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The chattering class is in love with this Robert Kagan op-ed warning of Donald Trump bringing fascism,

not with jackboots and salutes (although there have been salutes, and a whiff of violence) but with a television huckster, a phony billionaire, a textbook egomaniac “tapping into” popular resentments and insecurities, and with an entire national political party — out of ambition or blind party loyalty, or simply out of fear — falling into line behind him.

I suppose I’m unsurprised that Beltway insiders are so gleeful that this Hillary-endorsing Neocon has turned on Republicans in such a fashion. Or, perhaps more importantly, that they’re so thrilled someone with such a soapbox has written a warning of impending fascism that so neatly disavows any responsibility — for Kagan himself, and by association, for other insiders.

But there are a couple of real problems with Kagan’s screed.

First, Kagan would like you to believe that Trump’s success has nothing to do with policy or ideology or the Republican party except insofar as the party “incubated” Trump.

But of course the entire Trump phenomenon has nothing to do with policy or ideology. It has nothing to do with the Republican Party, either, except in its historic role as incubator of this singular threat to our democracy. Trump has transcended the party that produced him.

Kagan gets Trump’s relationship with the Republican party exactly reversed. The party did not in any way incubate Trump. 80’s style greed and cable TV incubated Trump, if anything. What the Republican party has long incubated is racism. Trump just capitalized on that and pushed it just … a … bit … further than Republican dogwhistles traditionally go, in a year in which the GOP had lost a great deal of its credibility.

Which is why Kagan is also wrong in claiming that Trump isn’t about policy or ideology. I admit that Trump has always shown great deal of ideological flexibility, both before and during this run. But he has been consistent on two points: that racism, but also protectionism. There are a lot of reasons those two ideological keystones have appealed this year, but one has to do with the failures of globalization and the related American hegemonic project it assumes. That’s ideology and policy, both Trump’s, but also DC’s, including Kagan’s.

Kagan goes on to deal with these two issues.

We’re supposed to believe that Trump’s support stems from economic stagnation or dislocation. Maybe some of it does. But what Trump offers his followers are not economic remedies — his proposals change daily. What he offers is an attitude, an aura of crude strength and machismo, a boasting disrespect for the niceties of the democratic culture that he claims, and his followers believe, has produced national weakness and incompetence. His incoherent and contradictory utterances have one thing in common: They provoke and play on feelings of resentment and disdain, intermingled with bits of fear, hatred and anger. His public discourse consists of attacking or ridiculing a wide range of “others” — Muslims, Hispanics, women, Chinese, Mexicans, Europeans, Arabs, immigrants, refugees — whom he depicts either as threats or as objects of derision. His program, such as it is, consists chiefly of promises to get tough with foreigners and people of nonwhite complexion. He will deport them, bar them, get them to knuckle under, make them pay up or make them shut up.

Note the assumption that Trump’s protectionism is not an economic remedy but some unstated alternative is? Note Kagan’s treatment of racism, an ideology, as fear divorced from that ideology of white American exceptionalism?

Fear!! Kagan wants to boil Trump’s popularity down to fear! A guy who has had a central role in ginning up serial American aggressive wars is offended that someone wields fear to achieve political power!!! And having done that, this warmonger says the ability to gin up fear is precisely what our Founders — the men who set up three competing branches of government, each jealously guarding its power — were concerned about.

Which brings me to the Kagan argument that most baffles me. After bewailing Republican politicians’ refusal to stand up to Trump’s demagoguery, Kagan then argues (though I’m not sure he even realizes he’s making this argument) that Article I and Article III (the latter of which goes entirely unmentioned in this op-ed) will be powerless to stop Trump and his “legions” once he becomes president.

What these people do not or will not see is that, once in power, Trump will owe them and their party nothing. He will have ridden to power despite the party, catapulted into the White House by a mass following devoted only to him. By then that following will have grown dramatically. Today, less than 5 percent of eligible voters have voted for Trump. But if he wins the election, his legions will comprise a majority of the nation. Imagine the power he would wield then. In addition to all that comes from being the leader of a mass following, he would also have the immense powers of the American presidency at his command: the Justice Department, the FBI, the intelligence services, the military. Who would dare to oppose him then? Certainly not a Republican Party that laid down before him even when he was comparatively weak. And is a man like Trump, with infinitely greater power in his hands, likely to become more humble, more judicious, more generous, less vengeful than he is today, than he has been his whole life? Does vast power un-corrupt?

Never mind that Kagan describes general election numbers that simply don’t exist in our democracy. What he’s really complaining about is that a President — one he happens to distrust and dislike — would have “the immense powers of the American presidency at his command: the Justice Department, the FBI, the intelligence services, the military.”  Of course, Kagan focuses not on the government as a whole, but on the Deep State and the Justice Department that has increasingly become an integral part of it.

The guy who, for years, championed the unfettered exercise of the Deep State in the hands of people like Dick Cheney is now troubled about what would happen if Donald Trump got the same powers Dick Cheney had. And for what it’s worth, while I don’t buy Michael Hayden’s claim the CIA would resist a President Trump’s order to torture (Hayden’s successors at NSA and CIA will likely do just what Hayden himself did, capitulate to unconstitutional demands), I also know that neither Trump nor anyone in his immediate orbit has the kind of bureaucratic mastery of the Deep State that Dick Cheney had.

One more really important point: the Deep State — those tools Kagan is horrified Trump might soon wield — got so powerful, creating the danger that a demagogue like Trump might tap into them fully formed, largely in the service of an imperial project significantly sold by Robert Kagan. Kagan has claimed to be selling “Democracy™” around the world, but all along that project has rotted our own democracy here at home.

Kagan (and his fellow imperialists) did that. Not Trump. Trump would just take advantage of the bureaucratic tools Kagan’s propaganda has served to justify.

I’m not denying Donald Trump is a huge threat to American democracy (though I happen to think Hillary’s foreign policy will come with great risks and costs as well). I’m saying that Robert Kagan is not the one to make this argument — at least not without a whole lot of soul searching and commitment to change the underlying empowerment of “the immense powers of the American presidency.”

But Kagan doesn’t want that. Rather, he just wants to hand those powers, still unchecked, to Hillary Clinton.

The Intelligence Community Casts Its Vote for Hillary Clinton

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Since Donald Trump all-but sealed the nomination the other day, there has been a bit of a tizzy because he’ll receive intelligence briefing(s). Several spooks and former spooks complained to the Daily Beast that Trump might run his mouth and let something slip.

And that prospect has some spies sweating. Trump, who can’t seem to dam his stream of consciousness on Twitter, and who has lately taken to spreading rumors and conspiracy theories on national television, has never been privy to national secrets. Nor has he ever demonstrated that he’s capable of keeping them.

“My concern with Trump will be that he inadvertently leaks, because as he speaks extemporaneously, he’ll pull something out of his hat that he heard in a briefing and say it,” said a former senior U.S. intelligence official who has participated in the process of briefing presidential candidates.

[snip]

“It’s not an unreasonable concern that he’ll talk publicly about what’s supposed to stay in that room,” said another former senior intelligence official.

A currently serving U.S. official echoed some of those anxieties and wondered whether Trump would respect the discretion of the briefing and not use it to his advantage on the campaign trail.

The DB piece admits that Hillary is under investigation for mishandling classified information, with her presumptive National Security Advisor Jake Sullivan among the staffers who forwarded emails the CIA claims (dubiously) to be super secret (curiously, this flurry of Trump briefing stories came on the same date the FBI was leaking to CNN that thus far they’ve got nothing against Hillary). It doesn’t mention that Leon Panetta, who leaked classified information for political gain, is also among Hillary’s advisors.

WaPo’s Greg Miller airs more concerns from the spooks, including that intelligence briefers would be uncomfortable briefing people who have close business ties to rivals or adversaries, not to mention people who espouse torture.

Analysts selected for such assignments tend to be among the most polished and experienced in the intelligence community. “They are going to be very professional,” Peritz said, but Trump poses unique complications. “He has all kinds of relationships with Chinese investors and Russian investors. He’s spoken very highly of our adversaries. And he’s talked about using torture and waterboarding and attacking people’s families. All these things are going through the analysts’ minds.”

Huh? The CIA doesn’t have anyone left over who briefed Dick Cheney? Because those guys surely knew he talked about torture and waterboarding! Or how about the folks who briefed Obama before someone killed Anwar al-Awlaki’s teenage son? And if Hillary, with all her ties to Clinton Global Initiatives people, can be briefed, I’m not sure why Trump can’t, with his business ties. It’s not as if the Russians and Chinese haven’t already stolen the secrets that Trump would get.

Look. Michele Bachmann served on the House Intelligence Committee for four years. She’s every bit as unpredictable as Donald Trump. And aside from that time she claimed that jihadis had already tried to penetrate 6 of the 15 Pakistani nuclear sites that were vulnerable — a detail that had already been reported to the press — she never ran her mouth more than, say, Marco Rubio when he leaked details about the implementation of USA Freedom Act earlier this year.

The point is, all this Sturm und Drang about Trump getting intelligence briefings ignores all the other leakage that already goes on by people the Intelligence Community doesn’t seem worried about briefing. All the more so given what Charlie Savage notes — that this is just one limited briefing; Trump won’t get to learn the good stuff until after he wins the Presidency.

Michael J. Morell, a former deputy C.I.A. director, who regularly briefed Mr. Obama before retiring in 2013, said the postconvention nominee briefing would last several hours. The idea is to “get them to understand that they have now stepped into a bigger world” in which foreign allies, adversaries, and neutral parties are paying close attention to whatever they say, and that their words may have broad consequences, he said.

Michael E. Leiter, a former director of the National Counterterrorism Center, provided the terrorism portion of the briefing that Mr. Obama received after he became the Democratic nominee in 2008. Mr. Leiter said the post-convention briefings lay out a significant amount of important and sensitive information.

“You are not trying to give them a tactical update on the issues of the day, but to lay out the full panoply of issues that they are going to face; the good, the bad, and the ugly of what the world looks like and what implications there may be going forward,” he said.

Both former officials said that the postconvention briefing for nominees would contain top secret information, but not a discussion of the sources and methods used to gather it, or any description of covert operations.

Raising the specter of classified information is nice. But this seems to be more a statement of preference for Hillary Clinton, and a continuation of the status quo, with all its questionable aggression, than a case against Trump, no matter how bad his foreign policy would be (though his domestic policy against minorities would be worse than his foreign policy). The spooks want Hillary and a continuation of their current plans.

Plus, all this whining ignores something else.

Although the Executive does so by very broadly interpreting the relevant precedents, for decades, Presidents have claimed — and the Intelligence Community has backed that claim fully — that they have unlimited discretion to classify or declassify information. The idea is that if some guy can get elected, he can decide what counts as classified in this country.

If that would be a problem with Trump, then maybe now is the time to start thinking about codifying some limits to giving popularly elected Presidents unfettered discretion to play with classified information? I, frankly, don’t want Hillary to have that authority either (or any President!). You never know when someone is going to leak an officer’s identity just for political gain, after all.

But the IC has for decades agreed with a system in which the President has complete, arbitrary control over what counts as classified. That’s the underlying problem. Not that Donald Trump might get a single intelligence briefing.

Military Keynsianism, American Exceptionalism, and Trump

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This Chas Freeman piece, The End of the American Empire, has gotten a lot of attention since it got posted yesterday. He talks about several key issues, starting with how counterproductive our “sphere of influence” Empire, which brings an expectation we can dictate the rules for all other countries (save China and Russia, and — I’d add — until recent successes in undermining Bolivarism, parts of South America) around the world.

The notion of a sphere of influence that is global except for a few no-go zones in Russia and China is now so deeply ingrained in the American psyche that our politicians think it entirely natural to make a number of far-reaching assertions, like these:

(1) The world is desperate for Americans to lead it by making the rules, regulating global public goods, policing the global commons, and doing in “bad guys” everywhere by whatever means our president considers most expedient.

(2) America is losing influence by not putting more boots on the ground in more places.

(3) The United States is the indispensable arbiter of what the world’s international financial institutions should do and how they should do it.

(4)  Even if they change, American values always represent universal norms, from which other cultures deviate at their peril. Thus, profanity, sacrilege, and blasphemy — all of which were not so long ago anathema to Americans — are now basic human rights to be insisted upon internationally. So are homosexuality, climate change denial, the sale of genetically modified foodstuffs, and the consumption of alcohol.

These American conceits are, of course, delusional. They are all the more unpersuasive to foreigners because everyone can see that America is now in a schizophrenic muddle — able to open fire at perceived enemies, but delusional, distracted, and internally divided to the point of political paralysis.

This sphere of influence Empire, on top of being horrible for the rest of the world, is also sucking the US dry internally.

Diplomacy-free foreign policy blows up enough things to liven up the TV news, but it generates terrorist blowback and it is expensive. There is a direct line of causation between European and American interventions in the Middle East and the bombings in Boston, Paris, and Brussels as well as the flood of refugees now inundating Europe. And so far this century, we’ve racked up over $6 trillion in outlays and future financial obligations in wars that fail to achieve much, if anything, other than breeding anti-American terrorists with global reach.

We borrowed the money to conduct these military activities abroad at the expense of investing in our homeland. What we have to show for staggering additions to our national debt is falling living standards for all but the “one percent,” a shrinking middle class, a rising fear of terrorism, rotting infrastructure, unattended forest fires, and eroding civil liberties. Yet, with the notable exception of Bernie Sanders, every major party candidate for president promises not just to continue — but to double down on — the policies that produced this mess.

[snip]

Whatever the cure for our foul mood and foreigners’ doubts about us may be, it is not spending more money on our armed forces, piling up more debt with military Keynesianism, or pretending that the world yearns for us to make all its decisions for it or to be its policeman.

As it happens, I’m also reading Greg Grandin’s biography (I think the better description is “intellectual history”) of Henry Kissinger, which I also recommend. Grandin portrays Kissinger (a New Left figure with an old right morality or lack thereof, Grandin suggests) as the cornerstone for this process, down to what Freeman points to as one key problem with our Empire, that it gets run out of the National Security Council. I’m just part way in, but Grandin describes how Kissinger, partly in a bid to remain in Nixon’s good graces, packaged a bunch of foreign intervention (and because it’s Kissinger, outright genocide) for domestic consumption. We extended the Vietnam War to Cambodia and Laos not for strategic reasons but for domestic political consumption, dead protestors notwithstanding.

Both pieces resonate with something I’ve increasingly been thinking: that what gets called American Exceptionalism — which is really the sphere of influence Freeman describes packaged up under an always dubious and increasingly tarnished moral claim to authority — significantly served a domestic purpose (though it also served to accrue power for America’s elites, including its big corporations): to make Americans content with their lives, even if we never got the kind of social welfare that Europe instituted after World War II.

Europe got universal healthcare. We got the right to claim ourselves morally superior to the rest of the world, even if we paid more for crappy health insurance.

I’d add something neither man focuses on: American exceptionalism always has a domestic component, which largely involves white people (especially men) lording over people of color.

I raise all this because it’s something I’ve been thinking about increasingly this election year, to explain Trump especially, but also the counter-establishment mood generally. I think the electorate really consists of three blocks: Trump voters who want to reclaim the privileges of American exceptionalism for their own benefit (which is why his supporters so often express their outrage in terms of race, because exceptionalism involves the domination of both the rest of the world and of people of color domestically). Then there are the Hillary and mainstream GOP voters, who are trying to squeeze some benefit out of what Freeman rightly calls military Keynesianism (though I’d argue neoliberalism is about corporate welfare Keynesianism more generally). And then lefties — many but not all of whom support Sanders — who question both the corporate Keynesianism and, especially, the sphere of influence empire.

My real point, however, is that the Trump effect is secondary. It is absolutely true that American workers and middle class, generally, have been losing ground. And it absolutely true that whites may perceive themselves to be losing more ground as people of color equalize outcomes, however little that is really going on. It is, further, absolutely true that large swaths of flyover country whites are killing themselves, often through addiction, at increasing rates, which seems to reflect a deep malaise.

But I also think the effect of the Trump side of the equation — the thing that’s driving rabid adherence to an orange boob promising a big wall and domestic investment as well as promising to treat other countries with utter disdain — is secondary malaise, the loss of the self-belief that America actually is exceptional.

(White) America needs to stop believing its superior stems from the ability to lord over much of the rest of the world and start investing in actually living with the rest of the world.

If Trump’s Protestors Didn’t Exist He Would Have to Invent Them

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Since last Friday’s canceled Trump rally in Chicago, there has been quite a bit of discussion about protestors at Trump rallies — both the propriety of disrupting his events and some scolding about what a bad tactical move it was for protestors to shut down the Chicago event, as well as some sudden realization among the chattering classes that Trump really does espouse violence.

I’d like to take a different approach and look at how Trump uses protestors.

For months, Trump has made protestors an integral part of his schtick at rallies. A person of color, a woman in hijab, a woman with a walker shows up and either silently protests, perhaps holding or wearing an anti-Trump slogan, or does boo and call out. Purportedly in response to earlier disruptions, Trump instructs attendees before any disruption not to hurt the protestors, but instead to surround them, holding up Trump signs and chanting his name, until security comes to throw the protestor out. “Get him out of here!” Trump yells after his attendees have disinfected the herd. This is all part of the rhythm now of Trump’s rallies, a way to reinforce the mob mentality in a participatory way.  Supporters become more than mere voters: they get deputized into reinforcing the purity of the herd, like drone bees cleaning out a hive.

I’m agnostic about the efficacy of protestors thus treated — they serve a useful function for Trump, sure, but given that every rally he does is covered on TV, they also serve as witness to the violence and assumed nativism of the rallies (not that the chattering classes seemed to take all that much notice before last weekend). But any individual’s decision to protest is their own choice, and I fiercely admire the courage it takes to walk into one of those rallies and serve as witness.

Of course, the neat formula Trump has long relied on depends on having — or rather, maintaining the illusion of — a majority. The “Silent Majority” has really become something closer to the “Silent 30%” or even “Silent 25%,” but at Trump rallies it appears as if those no-longer silent angry people are a majority.

On Friday, Trump lost control of that illusion.

I agree with William Daley, among others, who suggests that Trump chose to create a confrontation by scheduling an event at UIC. But I also think protestors got a sufficient mass of organized protestors to the event to thwart the managed confrontation Trump was hoping for, because they deprived him of the illusion of a majority. So he canceled the event before even showing up, falsely citing Chicago Police Department warnings.

I’m agnostic here, too, about the efficacy of this protest. One thing that has been largely — though not entirely — ignored (which itself testifies to something about the efficacy of speech rights in this country) is that the protest was part of a larger effort, including the effort to oust Cook County State’s Attorney Anita Alvarez in today’s election; there were even “Bye Anita” signs at the protest. That is, the protest of Trump’s speech was part of a larger effort to fight systematic abuse of minorities, and as such had an affirmative message as well, though I admit the message reinforced afterwards — by both the protestors and press — is that they shut him down. I believe Alvarez has been leading in the polls, so we’ll see this evening whether the larger movement against her police cover-ups has achieved its goals.

But in questions of efficacy, I think it worth remembering how the Black Lives Matter protest of the Netroots Nation debate between Martin O’Malley and Bernie Sanders last July (which seems to have been entirely forgotten as people feel sorry for Trump). O’Malley basically gave up his microphone willingly; Bernie was more perturbed. A lot of attendees in the audience (the equivalent of all the Trump supporters who were deprived of their opportunity to hear him speak on Friday) were really angry; but many of those same people also wrote pieces in the weeks later talking about how important a learning opportunity being discomforted in such a way was. And that protest was undoubtedly effective, as it made the criminal and social justice issues a key focus of the Democratic primary. That’s not to say Trump protestors are as likely as Netroots Nation attendees to reflect on the privilege that attends uninterrupted speeches by white men, but sometimes protests do lead observers to rethink their own role (as, for example, mosque protestors in AZ who were invited inside only to learn about Islam in an unmediated way).

Let’s look, however, at what has happened in the days since Friday. On Saturday, Trump canceled and then uncanceled an event in Cincinnati, citing Secret Service concerns. Also on Saturday, protestor Thomas DiMassimo rushed Trump on stage (something I don’t defend, as it created real concerns about Trump’s safety; DiMassimo is lucky he wasn’t shot). Finally, in Kansas City, protestors achieved the result that Chicago protestors might have imagined: the sustained silencing of Trump, which he used to 1) claim Sanders supporters were the problem and 2) reinforce his love for the police.

Since then there have been reports of Trump finally doing what he chose not to do before (I argue, because protestors play a key function in his rallies): screening attendees of likely protestors, including profiling on race, which carries with it its own visual messaging that may even influence attendees. Yesterday, Trump retreated to his less visceral means of reinforcing the bully structure of his campaign, again referring to Rubio as “Lil Marco” and publicly humiliating Chris Christie.

Here’s the underlying point, though. Amid all the discussions of both the law and norms surrounding interrupting speech, few have accounted for the way that well-managed spectacle is a key (arguably the key) to Trump’s attraction. That spectacle relies partly on Trump’s mock frankness — his ability and willingness to say anything he wants, including repeated promises he will address presumed grievances of his supporters. But it relies, at least as much, on his ability to mobilize a mob in a certain way, including to create the illusion for that mob that they are part of a coherent pure majority. That mob gives them the illusion of power they believe they have been illegitimately stripped of. It’s an illusion, of course, but Trump is a master at managing that spectacle to prevent cracks from forming in that illusion.

And this is why the response to Trump has largely been so ineffectual. Polls in FL showed that voters were more likely to support Trump given Friday’s shutdown (so on that level, at least, the protest may have backfired). But DC pundits scolding Trump has largely the same effect, reinforcing the sense of grievance. So if the DC press want to do something about Trump’s frightening power, they might do more reflection about how they have been a willing partner in it.

The way to weaken Trump is not to continue to magnify his spectacle, as the press has done non-stop for a year. This is tough for cable news to manage, because they are in the business of spectacle.

One way to weaken him is to reveal how Trump has exacerbated the grievances motivating his supporters, never addressed them. As a reminder, one of the only times Trump has really backed down over the course of this campaign was when Bernie attacked him for wanting to lower wages, because that’s a truth that, reinforced, might sow doubt.

The other way to is to disrupt Trump’s manufactured spectacle of strength, because his supporters are only going to support him so long as they believe his bluster about always winning (which relies, in part, on the bullying he performs at his rallies). I’m not sure whether disruption of rallies does that or not. Magnifying the degree to which Trump is a fearful man would. Reporting on his many failures would. Certain kinds of reminders of his past weaknesses might (though some would reinforce the sense of grievance).

Side note, one spectacle that did not get shown by the press were the protests in Detroit in advance of the GOP debate there. So as people complain about protestors not simply standing powerfully outside, know that the press has chosen in the past to ignore that spectacle.

I suspect Marco Rubio’s advisors had it right, even though they delivered it through the absolutely wrong messenger. Trump’s reliance on guest workers (he likes to conflate skilled H1B workers, which have been a central part of GOP debates, with unskilled H2B workers he employed at Mar Lago) and his use of Chinese manufacturers for his campaign swag are both real vulnerabilities. And if someone wants to suggest Trump is operating out of some sense of inferiority because he has a small flaccid penis and small hands to match, that may well undercut the spectacle of virility that Trump has affirmatively cultivated.

I think Megyn Kelly (because she’s a woman who has succeeded in making Trump look dumb, once Fox stopped letting Trump dictate her role in coverage), and — before Trump equated protestors with Bernie Sanders (maybe still, though I don’t know) — Bernie, are two of the few people who have the ability to undercut Trump’s power on mobilizing grievances. Probably some centrist union leaders have the same ability, as well as a select few faith leaders. There are vanishingly few people who have the power position to call attention to the degree to which Trump has contributed to his followers’ grievances, rather than done anything to alleviate them, but that evidence is out there.

I’m not sure what happens from here. Demographically, there should be no way Trump wins the general election; as I noted, the Silent Majority, to the extent it existed in Nixon’s era, is a minority now. Assuming it will be a Trump – Clinton race, I don’t know that we know, because Clinton will have a harder time addressing those grievances, and because the high negatives of both candidates will make turnout really unpredictable (though I also suspect Hillary will be an acceptable crossover vote for many Republican Neocons).

But there is one other unpredictable player here: the cops. For some time, both Ted Cruz and Trump have been feeding the perceived feeling of grievances of cops that they have been unfairly targeted by activists complaining about police violence. As noted, Trump hails the cops even as he dehumanizes protestors. Both Cruz and Trump have been buttering up the cops that may one day have the ability to turn the violence that has been simmering for some time in one direction or another (with the consequent spectacle). Though there were a few reports of heavy-handedness from Chicago cops, in general they did a good job of managing the tensions on Friday. I really, really worry that Cleveland’s cops (who are getting some new war toys in advance of the GOP convention) won’t exercise the same restraint.

Trump’s power rests on spectacle. He will not be defeated, primarily, with a rational argument or some tut-tutting about norms about violence (that, in fact, the US neither culturally nor internationally really abide by in any case), in part because there are few credible messengers of the rational argument about how Trump has contributed to grievances. If his spectacle starts to crack, however, the investment in Trump as a savior will dissolve. It won’t go away — it’ll get invested somewhere else, potentially even someone more violent (though that person is unlikely to have the soapbox Trump has). But his power depends on illusion.

DOJ’s Clear Threat to Go After Apple’s Source Code

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Oops: My post URLs crossed. Here’s where If Trump’s Protestors Didn’t Exist He Would Have to Invent Them is.

In a rather unfortunate section heading the government used in their brief responding to Apple last week, DOJ asserted “There Is No Due Process Right Not to Develop Source Code.” The heading seemed designed to make Lavabit’s point about such requests being involuntary servitude.

I’d like to elaborate on this post to look at what DOJ has to say about source code — because I think the filing was meant to be an explicit threat that DOJ can — and may well, even if Apple were to capitulate here — demand Apple’s source code.

The government’s filing mentions “source code” nine ten different times [see update]. The bulk of those mentions appear in DOJ’s rebuttal to Apple’s assertion of a First Amendment claim about having to write code that violates its own beliefs, as in these three passages (there is one more purportedly addressing First Amendment issues I discuss below).

Incidentally Requiring a Corporation to Add Functional Source Code to a Commercial Product Does Not Violate the First Amendment

Apple asserts that functional source code in a corporation’s commercial product is core protected speech, such that asking it to modify that software on one device—to permit the execution of a lawful warrant—is compelled speech in violation of the First Amendment.

[snip]
There is reason to doubt that functional programming is even entitled to traditional speech protections. See, e.g., Universal City Studios, Inc. v. Corley, 273 F.3d 429, 454 (2d Cir. 2001) (recognizing that source code’s “functional capability is not speech within the meaning of the First Amendment”).

[snip]

To the extent Apple’s software includes expressive elements—such as variable names and comments—the Order permits Apple to express whatever it wants, so long as the software functions. Cf. Karn v. United States Department of State, 925 F. Supp. 1, 9- 10 (D.D.C. 1996) (assuming, without deciding, that source code was speech because it had English comments interspersed).

Most people aside from EFF think Apple’s First Amendment claim is the weakest part of its argument. I’m not so sure that, in the hands of the guy who argued Citizens United before SCOTUS, it will end up that weak. Nevertheless, DOJ focused closely on it, especially as compared to its treatment of Apple’s Fifth Amendment argument, which is where that dumb heading came in. This is the entirety of DOJ’s response to that part of Apple’s argument.

There Is No Due Process Right Not to Develop Source Code

Apple lastly asserts that the Order violates its Fifth Amendment right to due process. Apple is currently availing itself of the considerable process our legal system provides, and it is ludicrous to describe the government’s actions here as “arbitrary.” (Opp. 34); see County of Sacramento v. Lewis, 523 U.S. 833, 846-49 (1998). If Apple is asking for a Lochner-style holding that businesses have a substantive due process right against interference with its marketing strategy or against being asked to develop source code, that claim finds no support in any precedent, let alone “in the traditions and conscience of our people,” “the concept of ordered liberty,” or “this Nation’s history.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

Though admittedly, that’s about how much Apple included in its brief.

The Fifth Amendment’s Due Process Clause Prohibits The Government From Compelling Apple To Create The Request [sic] Code

In addition to violating the First Amendment, the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from “‘arbitrary deprivation of [its] liberty by government.’” Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010) (citation omitted); see also, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (“We have emphasized time and again that ‘[t]he touchstone of due process is protection of the individual against arbitrary action of government,’ . . . [including] the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” (citations omitted)); cf. id. at 850 (“Rules of due process are not . . . subject to mechanical application in unfamiliar territory.”).

In other words, both Apple and DOJ appear to have a placeholder for discussions about takings (one that Lavabit argued from a Thirteenth Amendment perspective).

Those constitutional arguments, however, all seem to pertain the contested order requiring Apple to create source code that doesn’t currently exist. Or do they?

As I noted in my earlier Lavabit post, the DOJ argument doesn’t focus entirely on writing code that doesn’t already exists. As part of its argument for necessity, DOJ pretends to take Apple at its word that the US government could not disable the features (as if that’s what they would do if they had source code!) themselves.

Without Apple’s assistance, the government cannot carry out the search of Farook’s iPhone authorized by the search warrant. Apple has ensured that its assistance is necessary by requiring its electronic signature to run any program on the iPhone. Even if the Court ordered Apple to provide the government with Apple’s cryptographic keys and source code, Apple itself has implied that the government could not disable the requisite features because it “would have insufficient knowledge of Apple’s software and design protocols to be effective.”  (Neuenschwander Decl. ¶ 23.)

Note DOJ claims to source that claim to Apple Manager of User Privacy Erik Neuenschwander’s declaration (which is included with their motion). But he wasn’t addressing whether the government would be able to reverse-engineer Apple’s source code at all. Instead, that language came from a passage where he explained why experienced engineers would have to be involved in writing the new source code.

New employees could not be hired to perform these tasks, as they would have insufficient knowledge of Apple’s software and design protocols to be effective in designing and coding the software without significant training.

So the discussion of what the government could do with if it had Apple’s source code is just as off point as the passage invoking the Lavabit case (which involved an SSL key, but not source code). Here’s that full passage:

The government has always been willing to work with Apple to attempt to reduce any burden of providing access to the evidence on Farook’s iPhone. See Mountain Bell, 616 F.2d at 1124 (noting parties’ collaboration to reduce perceived burdens). Before seeking the Order, the government requested voluntary technical assistance from Apple, and provided the details of its proposal. (Supp. Pluhar Decl. ¶ 12.) Apple refused to discuss the proposal’s feasibility and instead directed the FBI to methods of access that the FBI had already tried without success. (Compare Neuenschwander Decl. ¶¶ 54-61, with Supp. Pluhar Decl. ¶ 12.) The government turned to the Court only as a last resort and sought relief on narrow grounds meant to reduce possible burdens on Apple. The Order allows Apple flexibility in how to assist the FBI. (Order ¶ 4.) The government remains willing to seek a modification of the Order, if Apple can propose a less burdensome or more agreeable way for the FBI to access Farook’s iPhone.9

9 For the reasons discussed above, the FBI cannot itself modify the software on Farook’s iPhone without access to the source code and Apple’s private electronic signature. The government did not seek to compel Apple to turn those over because it believed such a request would be less palatable to Apple. If Apple would prefer that course, however, that may provide an alternative that requires less labor by Apple programmers. See In re Under Seal, 749 F.3d 276, 281-83 (4th Cir. 2014) (affirming contempt sanctions imposed for failure to comply with order requiring the company to assist law enforcement with effecting a pen register on encrypted e-mail content which included producing private SSL encryption key).

Effectively, having invented a discussion about whether the government would be able to use Apple’s source code out of thin air, DOJ returns to that possibility here, implying that that would be the least burdensome way of getting what it wanted and then reminding that it has succeeded in the past in demanding that a provider expose all of its users to government snooping, even at the cost of shutting down the business, even after Ladar Levison (after some complaining) had offered to provide decrypted information himself.

Significantly, the government obtained a warrant for Lavabit’s keys as a way of avoiding the question of whether the “technical assistance” language in the Pen/Trap statute extended to sharing keys, but Levison was ultimately held in contempt for all the orders served on him, including the Pen/Trap order and its language about technical assistance. The Fourth Circuit avoided ruling on whether that assistance language in Pen/Trap orders extended to encryption keys by finding that Levison had not raised it prior to appeal and that the District Court had not clearly erred, which effectively delayed consideration of the same kinds of issues at issue (though under a different set of laws) in the Apple encryption cases.

In making his statement against turning over the encryption keys to the Government, Levison offered only a one-sentence remark: “I have only ever objected to turning over the SSL keys because that would compromise all of the secure communications in and out of my network, including my own administrative traffic.” (J.A. 42.) This statement — which we recite here verbatim — constituted the sum total of the only objection that Lavabit ever raised to the turnover of the keys under the Pen/Trap Order. We cannot refashion this vague statement of personal preference into anything remotely close to the argument that Lavabit now raises on appeal: a statutory-text-based challenge to the district court’s fundamental authority under the Pen/Trap Statute. Levison’s statement to the district court simply reflected his personal angst over complying with the Pen/Trap Order, not his present appellate argument that questions whether the district court possessed the authority to act at all.

[snip]

The Government, however, never stopped contending that the Pen/Trap Order, in and of itself, also required Lavabit to turn over the encryption keys. For example, the Government specifically invoked the Pen/Trap Order in its written response to Lavabit’s motion to quash by noting that “four separate legal obligations” required Lavabit to provide its encryption keys, including the Pen/Trap Order and the June 28 Order.

[snip]

In view of Lavabit’s waiver of its appellate arguments by failing to raise them in the district court, and its failure to raise the issue of fundamental or plain error review, there is no cognizable basis upon which to challenge the Pen/Trap Order. The district court did not err, then, in finding Lavabit and Levison in contempt once they admittedly violated that order.

In other words, the Lavabit reference, like the invention of an Apple discussion about what the government could do with its source code (any such discussion would have been interesting in and of itself, because I’d bet Apple would be more confident FBI couldn’t do much with its source code than that NSA couldn’t), was off point. But in introducing both references, DOJ laid the groundwork for a demand for source code to be the fallback, least burdensome position.

And, as I noted, in the Lavabit case, the government justified demanding a key based on the presumption that Edward Snowden would have a more complicated password than Syed Rizwan Farook’s 4-digit numerical passcode. That is, in that case, the government tied a more intrusive demand to the difficulty of accessing a target’s communications, not to the law itself, which suggests they’d be happy to do so in the future if they were faced with an Apple phone with a passcode too complex to brute force in 26 minutes, as FBI claims it could do here.

All of which brings me to one more citation of source code in DOJ’s extended First Amendment discussion: a reference to a civil case where Apple was able to obtain the source code of a competitor.

This form of “compelled speech” runs throughout both the criminal and civil justice systems, from grand jury and trial subpoenas to interrogatories and depositions. See, e.g., Apple Inc.’s Motion to Compel in Apple Inc. v. Samsung Electronics, Docket No. 467 in Case No. 11–cv–1846–LHK, at 11 (N.D. Cal. Dec. 8, 2011) (Apple’s seeking court order compelling Samsung to produce source code to facilitate its compelled deposition of witnesses about that source code).

Note, this is not a case about Apple (or Samsung, in this case) being compelled to write new code at all. Rather, it is a case about handing over the source code a company already had. In another off point passage, then, DOJ pointed to a time when Apple itself successfully argued the provision of source code could be compelled, even in a civil case.

Through a variety of means, DOJ went well out of its way to introduce the specter of a demand for Apple’s source code into its response. They are clearly suggesting that if Apple refuses to write code that doesn’t exist, the government will happily take code that does.

Loretta Lynch claimed, under oath last week, that the government doesn’t want a back door into Apple products. That’s not what her lawyers have suggested in this brief. Not at all.

Update: Here’s how Apple treated this in its Reply:

The government also implicitly threatens that if Apple does not acquiesce, the government will seek to compel Apple to turn over its source code and private electronic signature. Opp. 22 n.9. The catastrophic security implications of that threat only highlight the government’s fundamental misunderstanding or reckless disregard of the technology at issue and the security risks implicated by its suggestion.

Also, in writing this post, I realized there’s one more reference to source code in the government’s Response, one that admits Apple’s source code is “the keys to the kingdom.”

For example, Apple currently protects (1) the source code to iOS and other core Apple software and (2) Apple’s electronic signature, which as described above allows software to be run on Apple hardware. (Hanna Decl. Ex. DD at 62-64 (code and signature are “the most confidential trade secrets [Apple] has”).) Those —which the government has not requested—are the keys to the kingdom. If Apple can guard them, it can guard this.