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SACW - 1 July 2013 / Letter to Amir of Pakistan Taliba n/ Bangladesh: Ban religion from elections / India : Mountain disaster - grids of power, pilgrimage ; Rajiv Gandhi’s ’Action Plan ’ / US - Taliban Talks / Tribute to Walter Rod ney

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  • Harsh Kapoor
    South Asia Citizens Wire - 01 July 2013 - No. 2791 ... Contents: 1. Pakistan: Letter to To the Amir Hakimullah Mehsud (Ayaz Amir) 2. Africa: Issa Shivji’s
    Message 1 of 1 , Jun 30, 2013
      South Asia Citizens Wire - 01 July 2013 - No. 2791


      1. Pakistan: Letter to To the Amir Hakimullah Mehsud (Ayaz Amir)
      2. Africa: Issa Shivji’s tribute to Walter Rodney
      3. India: Recasting Ambedkar - Solidarity and the ends of history (Ananya Vajpeyi)
      4. India: Uttarakhand and the grids of power and pilgrimage (Amita Baviskar)
      5. India: Retrograde and politically sick poster by the Aam Adami political party’s election campaign in Delhi (sacw.net)
      6. India: Massive illegal diversion of the Kaval commons in Karnataka - A press release by Environment Support Group
      7. India: Protest by oustees affected by the Indira Sagar, Omkareshwar, Maheshwar, Upper Beda and Man dams
      8. India: Action Alert! Act fast to stop planned Uttarakhand in Narmada
      9. India: Decision to raise height of Sardar Sarovar Dam illegal and political conspiracy | NAPM press release
      10. India: Memorandum by eminent theatre professionals to the Minister of Culture re appointment of Director of National School of Drama
      11. India: Political Ecology of Pilgrimage and Its Hazards (Archana Prasad)
      12. The Tragic Fate of Rajiv Gandhi’s ’Action Plan’ for a Nuclear Weapon Free and Non-Violent World Order (N.D. Jayaprakash)
      13. WLUML statement on US - Taliban Talks
      14. Spoils of Victory: Sinhala extremism finds new targets in Sri Lanka
      15. Book Review: Harsch on Betts, ’Within Walls: Private Life in the German Democratic Republic’
      16. Selected Posts on Communalism Watch:
      - Book Review: Sandrine Sanos. The Aesthetics of Hate: Far-Right Intellectuals, Antisemitism, and Gender in 1930s France
      - India: Mathura VHP president arrested for serial blasts in Kosi Kalan area on 30 May 2013
      - India: Hindu Right VHP and Associates Cashing in on Relief Rehab Activity After Mountain Calamity in Uttrakhand - News reports
      - India: June 2013 RSS's appeal on Uttarakhand disaster
      - The Sahmat Collective, an Indian art exhibition touring the U.S. - A report by Lise McKean
      - India: BJP wary of Ishrat case - its 2014 plans might get torpedoed midstream
      - Dr Syama Prasad Mookerjee: The Hindutva Icon Who Betrayed the Freedom Struggle of India
      - Putting faith in the secular courts
      - Tamil Nadu's Ban on Tamil book Meendezhum Pandiyar Varalaaru (“Resurgence of Pandya History”) and charging the author with sedition is reckless
      - Christophe Jaffrelot: A tale of two BJPs
      - India: Narendra Modi on Sardar Patel - Putting Goebbels to Shame
      - India: on BJP's outreach strategy in Delhi

      Full text:
      17. India: Affirmative action: Indian reservations (A.R.)
      18. Bangladesh: Banning the religion card from elections (Swadesh Roy)
      19. Perspective on human rights - Reviewed by Sarbjit Dhaliwal
      20. The Criminal N.S.A. (Jennifer Stisa Granick And Christopher Jon Sprigman)

      by Ayaz Amir
      Respected Amir Sahib, we have no quarrel with you. The areas under your command, where the righteous flag of the Taliban flies, we ceded control of a long time ago, and we have learned to live with the outcome. Our watchword, as you would not have failed to notice, is peaceful coexistence...live and let live. So why should we be targeted? We don’t want war – we have made that amply clear – we only want to be left alone.

      Walter Rodney left a huge shadow on the left, on the African left, and in Tanzania

      by Ananya Vajpeyi
      Close to Delhi University, 26, Alipur Road in Civil Lines is an enormous property with two wings and two gardens, divided by a large driveway. The current structure stands in place of the residence where B.R. Ambedkar died in late 1956. It’s designated a national monument but hardly gets the footfalls of the memorials of Gandhi or Nehru also located in the capital. When I went in one evening, a security guard asked me to remove my shoes. He then showed me around the dusty premises, which house a few photographs, placards in Hindi and English bearing Ambedkar’s words, and books in steel cupboards that have seldom been opened.

      by Amita Baviskar
      it is now time for the nation to consider a ’no-development cess’, paying the Himalayan states to protect mountains, rivers and forests instead of exploiting them, so that India can be ecologically secure. The integrity of the Himalayan landscape is essential to the well-being of the entire subcontinent.

      by sacw.net
      An election campaign poster in Hindi by the Aam Admi Party widely seen on the back of three wheeled auto rickshaws in Delhi, says that "if you vote for the corrupt, rapes of women will continue". The poster is making a disgusting political use of rapes and sexual violence against women. Its seems to suggest that rapes have to do with a political party or with the party in power and or in the govt., a pretty reductionist view of patriarchy this.

      massive illegal diversion of the Kaval commons, also designated “District Forests”, has been undertaken to allow Bhabha Atomic Research Centre to establish a massive nuclear enrichment centre, Defence Research Development Organisation to test its drones for civilian and military surveillance, Indian Institute of Science to establish a Synchrotron and a satellite application centre of Indian Space Research Organisation, all for a paltry payment of Rs. 30-35,000/acre. In addition, Sagitaur Ventures Pvt. Ltd., a IT real estate developer has been provided 1000 acres of this biodiversity rich grasslands to site a solar pond and at a ridiculously low lease rent of Rs. 45 lakhs (USD 75000/-). In anticipation of these developments, Karnataka Housing Board has already constructed villas and neighbourhoods illegally in the grasslands and it is speculated that the Indian Army may demand another 10,000 acres to establish its camp. None of these developments have complied with any of the statutory clearance requirements required under laws protecting grazing pastures, forests, environment, biodiversity, forest rights, etc.

      Thousands of oustees affected by the Indira Sagar, Omkareshwar, Maheshwar, Upper Beda and Man dam demonstrated in capital city Bhopal today and began their Satyagrah.

      We are writing to you amidst a situation of extreme urgency. The two lakh population of adivasis, farmers, fish workers, potters etc. in the Narmada valley – in the three states of Madhya Pradesh, Maharashtra and Gujarat in the 245 villages require your immediate support to save their lives and livelihoods.

      The decision to permit raising of the height of the Sardar Sarovar Dam from the present height of 122 mts to the final height of 138.68 mts, as per the news published in the Times of India, has been taken by the Resettlement and Rehabilitation Sub Group of the Narmada Control Authority (NCA) on 26th June. This is supposed to have been done on the basis of the reports by the 4 states, including Madhya Pradesh, Gujarat and Maharashtra, confirming, that ‘rehabilitation is complete’. All this is absolutely unbelievable and unacceptable since there are more than 40,000 families in the 245 villages in the submergence area spread across three states, but the maximum (193) are in Madhya Pradesh alone.

      Theatre scholars and practitioners across the country have been extremely perturbed by the unwarranted delay and seeming drift on the part of the Ministry of Culture, Government of India with regard to announcing the name of the head of the National School of Drama (NSD), the country’s most prestigious drama school with a long and important history.

      by Archana Prasad
      Natural disasters are not new to the North Western and Central Himalayan region, but their intensity and scale has increased on account of the extreme weather events following the impact of climate change. In the last two decades, instead of taking precautions and implementing the agenda of adaptation measures in the Himalayan region, the governments have steadily been violating the environmental norms and liberalising the landuse policies. These landuse policies are designed to support the production of surplus hydropower for exporting power to metropolitan cities on the one hand, and supporting the burgeoning pilgrim traffic on the other. This year there were an estimated 2.5 crore tourists on the Char Dham route, a figure that is more than two times the population of the state. Infrastructural support for these pilgrims is closely linked to industrial development of the state.

      by N.D. Jayaprakash
      It is highly unfortunate that the twenty-fifth anniversary of the submission of the ‘Action Plan for a Nuclear Weapon Free and Non-Violent World Order’[1] by Prime Minister Rajiv Gandhi before the UN General Assembly (UNGA) on 09 June 1988 during the Third Special Session Devoted to Disarmament has gone unnoticed in India and elsewhere.

      We, the Women Living under Muslim Laws international solidarity network, are dismayed by the announcement that the US government is to start direct talks with the Afghan Taliban. The first round of talks is scheduled to take place in Doha, Qatar, where the Taliban set up a political office in January. We demand that a very clear and explicit commitment be made to guarantee the rights of all, especially the rights of women and children by all parties involved in the talks. Justice and the human rights of all Afghan people, as enshrined in the Afghan Constitution, must be at the centre of any talks or negotiations with the Taliban or any other armed group.

      Activists and monks affiliated with the Jathika Hela Urumaya (JHU) have been a driving force for Sinhala supremacism in recent years.

      In her riveting memoir of growing up in the GDR, Marion Brasch recounts that her father reported her brother (the soon-to-be-famous) Thomas Brasch to the Socialist Unity Party (SED) after Thomas distributed leaflets against the Warsaw Pact’s invasion of Czechoslovakia in 1968. The harrowing conflict between a rigid, dedicated communist father and a rebellious, idiosyncratic son is the central, but far from only, example in this moving narrative of the unhappy interplay between ideological commitment to a controlling state and the psychological dynamics of a dysfunctional family. Brasch lays bare the story of a socially isolated and gradually disintegrating family whose members continued to believe in the promise of communal society even as some of them defiantly rejected real, existing socialism.

      - Book Review: Sandrine Sanos. The Aesthetics of Hate: Far-Right Intellectuals, Antisemitism, and Gender in 1930s France
      - India: Mathura VHP president arrested for serial blasts in Kosi Kalan area on 30 May 2013
      - India: Hindu Right VHP and Associates Cashing in on Relief Rehab Activity After Mountain Calamity in Uttrakhand - News reports
      - India: June 2013 RSS's appeal on Uttarakhand disaster
      - The Sahmat Collective, an Indian art exhibition touring the U.S. - A report by Lise McKean
      - India: BJP wary of Ishrat case - its 2014 plans might get torpedoed midstream
      - Dr Syama Prasad Mookerjee: The Hindutva Icon Who Betrayed the Freedom Struggle of India
      - Putting faith in the secular courts (Jyoti Punwani)
      - Tamil Nadu's Ban on Tamil book Meendezhum Pandiyar Varalaaru (“Resurgence of Pandya History”) and charging the author with sedition is reckless
      - Christophe Jaffrelot: A tale of two BJPs
      - India: Narendra Modi on Sardar Patel - Putting Goebbels to Shame
      - India: on BJP's outreach strategy in Delhi
      - Bharatiya Janata Yuva Morcha in Delhi and its move to create a helpline or Delhi university admission seekers in 2013
      - H-Net Review: Nechtman on Carson, 'The East India Company and Religion, 1698-1858'
      - India: No cellphones for unmarried girls, no jeans for women says BJP MP

      :: FULL TEXT ::
      by A.R. | DELHI
      The Economist - 29 June 2013
      It has been a busy week for America's Supreme Court, as it returned rulings on cases regarding not only gay marriage but also affirmative action (to use the American euphemism) in the public universities. Our other blogs have handled those decisions in other entries. Looking ahead to this week two months ago the print edition considered affirmative action from a worldwide perspective. That issue took a very critical line on the entire phenomenon and paid special attention to examples from America, South Africa and Malaysia. India's experience was judged to be too exceptional—in large part because it does not concern race as such—for consideration in that briefing. But as America's Supremes have remanded the issue to lower courts for a while longer, we thought this would be a fine time to take a look at the case of castes.

      INDIA’S experiment with affirmative active is the world’s oldest. Known locally as “reservation” policy it is an elaborate quota system for public jobs, places in publicly funded colleges—like the Indian Institutes of Technology (IIT)—and in most elected assemblies. These are filled by members of designated, disadvantaged groups.

      There are two main intended beneficiaries. Arguably more neglected are the 100m adivasi, the 8% of India’s population counted as “Scheduled Tribes”. Many live in remote or forested corners. Probably more repressed for the centuries in which Hinduism’s noxious caste practice has prevailed however are the Dalits, formerly “untouchables”. Shunned by other Hindus as polluted for their labours, which included the clearing human and other waste, Dalits remain generally poor and discriminated against. To officials they are members of the “Scheduled Castes”.

      India’s constitution of 1950 enshrined the idea of discrimination as a means to help both “scheduled” groups, which was to build on limited quotas for jobs and education that were used in parts of British-run India from the 1920s. It proposed that the policy exist for a decade to see what progress would be made, but without spelling out how to measure it. The provision has been renewed without fuss every decade since.

      Rather than debate whether the practices help, politicians focus on extending them to new blocks of voters. By the late 1980s, after a commission of inquiry, lowly but non-“scheduled” Hindu castes, known collectively as the OBCs for “Other Backward Classes”, some 27% of the population, also got quotas. The result: in individual states such as Tamil Nadu or within the north-east, where backward populations predominate, over 80% of government jobs are set aside in quotas, despite a Supreme Court ruling that 50% ought to be the maximum.

      Muslims want quotas too, but lack political clout to force them. Women have had a hand up in the political realm: a third of all seats in local elected bodies are reserved for them, after a 1993 constitutional amendment. A bill, supported by Sonia Gandhi, India’s most powerful politician, would see it applied it in the national parliament too.

      The various quotas have partly achieved their most basic tasks. In public jobs members of backward groups claim more posts than of old. Dalits had just 1.6% of the most senior (“Group A”) civil servant positions in 1965, for example. That rose to 11.5% by 2011, not far off the 16% or so of the general population that Dalits represent. The share is higher for more junior posts.

      Judging a broader impact is harder. Very few Indians have formal jobs, let alone government ones. “The [jobs] policy only matters for perhaps 2% of the Indian work force”, points out Harsh Shrivastava of the World Development Forum, a think-tank in Delhi. Other than in tweaking quotas (to reflect the local size of a “scheduled” population) states have never experimented, nor competed, to find out whether their jobs policies have any wider, beneficial impact.

      Worse, the policy has probably helped to make India’s bureaucracy increasingly rotten—and it was already one of the country’s greater burdens. An obsession with making the ranks of public servants representative, not capable, makes it too hard to sack dysfunctional or corrupt bureaucrats. Nor will this improve. In December 2012 parliament’s upper house passed a bill ordering that bureaucrats be promoted not on merit alone, but to lift the backward castes faster.

      Private firms are not directly affected, but a few take voluntary measures. The biggest of all, the Tata conglomerate, which employs over 350,000, does in-house surveys to assess its Dalit and tribal work force. Tata gives incentives, setting lower requirements for exam marks, for Dalit and tribal job applicants. Most generally, however, formal jobs in tech and outsourcing firms, for example, are valued in part because they are caste-blind.

      Wider consequences may be within education. Quotas and special scholarships for backward groups were first established in the 1920s. For secondary schooling state funds help to encourage more Dalit and tribal children into classrooms; the effect of setting aside special places in colleges and university is to lower the marks needed by Dalit and other backward applicants.

      That causes resentment among general applicants, who vie for extremely competitive spots in medical, business and other colleges. But the policy probably does help to propel more Dalits and others to study, as shown in steadily improving rates of literacy and higher qualifications achieved by the groups. A 2009 study found roughly one-in-15 graduates were Dalits, and one-in-ten secondary students, well up on previous decades. Yet that is still too few, as they continue to lag other groups.

      Nor is it possible to know just why the numbers have risen. A general programme to build schools and provide a free, midday meal for all pupils, irrespective of caste, probably does even more to help the backward groups. And broad economic changes, such as urbanisation or the use of English, almost certainly do more to boost chances for Dalits and others.

      The overall effects therefore are probably limited, and certainly hard to judge. Pratap Bhanu Mehta, an academic at the Centre for Policy Research in Delhi, favours affirmative action but concludes that a policy focused on distribution of limited state resources is bound to fail. “The current system is not about equal opportunity, it is about distributing the spoils of state power strictly according to caste, thus perpetuating it”, he says.

      Nor is any thought given to missed opportunity. Beyond an obsession with quotas, and making untouchability illegal, India’s rulers have done nothing to address ongoing social repression by caste. Village councils, for example in Haryana, in effect outlaw marriages between different castes, or within certain sub-caste groups. The practice of “honour” killings of youngsters who marry against caste rules remains dismally prevalent. Police and politicians show little interest in prosecuting those responsible.

      Nor does it help that social mobility of all sorts has been slow in India, mostly because it has remained poor and predominantly rural for so long due to decades of wrongheaded economic policies. For a Dalits peasant or labourer the reservation policy is unlikely to make much difference; getting a job in a factory or a call centre would transform his life.

      A tiny minority has prospered, with an estimated 1% of the two “scheduled” groups falling into the highest wealth bracket (calculated as four times above the poverty line), according to a recent study of income data by caste, from 2005. Yet this in turn creates anxiety. If a tiny set flourishes within a broadly disadvantaged group, should it continue to enjoy privileges and quotas from the state?

      The Supreme Court, addressing the OBCs in particular, says no. It defined the concept of a “creamy layer” of the wealthiest and most privileged among the OBCs, saying they must now be excluded from quotas. The result: debates flare not only over which backward groups deserve privileges, but over whom within the groups should then be excluded. The result, increasingly, will be a mess.

      The creamiest layer of the lot are in politics. Dalits, for example, now serve as parliament’s speaker and as home minister. Most powerful of all—even a potential prime minister—is Mayawati, the former chief minister of Uttar Pradesh state, who heads the Bahujan Samaj Party. She has done much to promote symbols of Dalit strength, often in the form of towering statues of elephants, her party symbol, or of herself wielding a handbag. Yet her success is on the back of electoral clout, not quotas and reservations.

      Is there any proof that political reservations bring benefits? Finding any is desperately difficult, since few have ever bothered to assess the impact of India’s affirmative-action policies over the decades.

      One 2010 study of 16 of India’s biggest states did look at the effect on poverty in backward groups of their getting quotas of representatives, from 1960 to 2000. The report’s authors, Aimee Chin and Nishith Prakash, say theirs is the only study ever to ask how an affirmative -action policy, of any sort, has affected poverty in India. Their conclusion: for “scheduled tribes”, who are conveniently crowded near one another on electoral maps, greater political clout has indeed led to a small drop in poverty. But for the “scheduled castes”, by contrast, it has made absolutely no difference at all.

      by Swadesh Roy
      (Dhaka Tribune, June 30, 2013)
      Countries and organisations have seen, through the previous four elections, how religion card trumps sustainable development and women’s empowerment

      For the longest time, Bangladesh has had strong ties with democratic development partner countries, along with some global organisations that want nothing more than sustainable development and women’s empowerment in our country.

      These countries and organisations have been working with Bangladesh for so long that along with the Bangladeshi people, they too have started to notice how Islamic fundamentalists abuse religion in order to establish a political foothold.

      The countries and organisations have seen, through the past four elections, how the religion card trumps sustainable development and women’s empowerment.

      The fundamentalist forces that keep playing the religion card are the Jamaat-e-Islami and the newly formed, self-proclaimed “political force” – Hefazat-e-Islam. About two and a half months ago, Hefazat-e-Islam pushed forward their 13-point demand.

      If met, these demands (some of which go against the constitution of the country) will ensure that no sustainable development takes place and that no women are empowered. Jamaat-e-Islami, on the other hand is well known amongst Bangladesh’s democratic partners due to the shenanigans they started more than six months ago.

      The two Islamic fundamentalist groups have remained afloat mainly due to the support of the Bangladesh Nationalist Party (BNP) – the main opposition in the country’s current government.

      They started off riding on BNP’s bandwagon but over time have come into the driving seat, making it clear that BNP’s political strategy for national politics is using the “religion card” in any and every way they can.

      All they want is to win the elections, and hold the seat of power, making it so that no development takes place, and change present-day democratic politics into something that works in their favour.

      However, what the BNP does not realise is that if they continue backing the fundamentalists, they themselves will eventually have to surrender to them.

      Bangladesh has a large number of youths aged between 18 and 25, and it is possible to utilise this demographic dividend as an efficient workforce in the global economy.

      As most of us know, there is a big market for products in the West for products manufactured in Asia; because of this labour costs in the continent are constantly on the rise. Since Bangladesh is one of the largest manufacturers of garments, its economy is constantly growing.

      The main factor behind this economic growth is the female workforce that is employed in the industry. Therefore, if Bangladesh wishes to continue its economic growth, it must espouse a liberal democratic process that is in favour of gender equality and modern education.

      We know that our development partners have been investing a lot of capital to develop both our economy and the society. Therefore, they are always advocating for a democratic and modern society. For this reason alone, they have helped us invest a lot of resources to improve our voting system, in spite of that, democracy in the nation is still infantile.

      Now that the country has seen how the “religion card” is a bane to the electoral system, one that will ultimately turn into a cancer, Bangladesh has little choice but to remove it from the body of the electoral system, or else it will act to ruin democracy.

      If Bangladesh loses that system due to Islamic fundamentalist groups coming to power through the election, it will be disastrous for the country. Bangladesh will stop continuously developing; its society will be in a state of chaos. The chaos will come about as a result of disconnect in the mindset of Bengali society, which isn’t fundamentalist at all, and these potential political leaders.

      Judging from the way Bangladesh’s economy and society is developing, it is obvious that it can reach its goal of becoming a middle income country soon.

      Politicians, business leaders, and development partners of the country have to think seriously about the use of the “religion card.” It’s true that Bangladesh has been very fortunate that so far the card has only been used in local elections that do not give the winner policy-making power that affects the country.

      Therefore, now is probably the best time to try and keep religion and the state separate. Many countries have strong laws against using religion in elections. Bangladesh too, should introduce a similar law with the help of development partners.

      Reviewed by Sarbjit Dhaliwal
      (Spectrum / The Tribune, May 26, 2013)
      Economy, Culture and Human Rights: Turbulence in Punjab, India and Beyond
      by Pritam Singh
      Three Essays Collective.
      Pages 250. Rs 350

      It is indeed a complex task to write about the issue of human rights; a nation state’s motives and objectives behind its violations; state repression to eliminate dissent and suppress those who challenge the state craft; politics and political actors working behind the issue of human rights. Pritam Singh, who teaches economics and is director of the Postgraduate Programme in International Management and International Relations at the Oxford Brookes University Business School, Oxford (UK), has dwelt on the subject in this book.

      The eight chapters throw light on the complex relationship between economic interests and human rights. The question of human rights in the book mainly revolves around what happened in Punjab in 1984 and later, but the author has remarkably dealt with the theoretical and practical aspects of human rights at a larger international scale, right from going into the historical background, perspective of human rights, his own personal experiences with regard to human rights violations and so on.

      Nations such as America have used human rights as a diplomatic tool to settle political scores with the countries ideologically opposed to it such as communist China, the erstwhile USSR and certain countries in the Middle East where economic interests related to fuel energy have been dictating the diplomatic agenda. On the one hand, such nation states have been showing deep concern for human rights violations, while on the other hand these have been violently crushing human rights of the countries perceived to be a threat to their economic interests with full military might. The author never skews his sense of proportion in his narrative of various events and discusses the issue with an objective approach. "The violations of human rights in Punjab required a critical scrutiny of Punjab’s conflict ridden past, which I tried to capture in the two chapters dealing with the past and present of Punjab. The conflict between growing centralisation of power in post- colonial India and the growing regional aspirations for decentralised self rule in Punjab led to a collision in 1984 and the massive violation of human rights that followed," says Pritam Singh while drawing his conclusions.

      He further adds: "Accompanying this political conflict was the emergence of religion as a powerful social, culture and political force in the process of unfolding of capitalist organization of economy and society in India and Punjab. On the one hand, religion emerged as a humanistic response to the commodifying and dehumanising tendencies of expanding capitalism but, on the other, it also acted as a catalyst for sectarian mobilization and conflict." Defenders of human rights face extreme challenges and slurs. They are attacked by the state and its agencies in various ways. In a society evolved on sectarian divisions, "the articulation of human rights becomes an extremely challenging and tangled enterprise," asserts Pritam Singh, who was subjected to torture by police for his ultra-Left leanings as a student of Panjab University in the 1970s. The author builds the case for framing a more informed policy by the state and is for a farsighted approach by the human rights community. Human rights considerations in domestic policy as well as in the foreign policy regime are in long-term interests of building a more conflict-free society, he argues. The book is worth spending money on.

      20. USA: THE CRIMINAL N.S.A.
      by Jennifer Stisa Granick And Christopher Jon Sprigman
      (The New York Times, June 27, 2013)

      THE twin revelations that telecom carriers have been secretly giving the National Security Agency information about Americans’ phone calls, and that the N.S.A. has been capturing e-mail and other private communications from Internet companies as part of a secret program called Prism, have not enraged most Americans. Lulled, perhaps, by the Obama administration’s claims that these “modest encroachments on privacy” were approved by Congress and by federal judges, public opinion quickly migrated from shock to “meh.”

      It didn’t help that Congressional watchdogs — with a few exceptions, like Senator Rand Paul, Republican of Kentucky — have accepted the White House’s claims of legality. The leaders of the Senate Intelligence Committee, Dianne Feinstein, Democrat of California, and Saxby Chambliss, Republican of Georgia, have called the surveillance legal. So have liberal-leaning commentators like Hendrik Hertzberg and David Ignatius.

      This view is wrong — and not only, or even mainly, because of the privacy issues raised by the American Civil Liberties Union and other critics. The two programs violate both the letter and the spirit of federal law. No statute explicitly authorizes mass surveillance. Through a series of legal contortions, the Obama administration has argued that Congress, since 9/11, intended to implicitly authorize mass surveillance. But this strategy mostly consists of wordplay, fear-mongering and a highly selective reading of the law. Americans deserve better from the White House — and from President Obama, who has seemingly forgotten the constitutional law he once taught.

      The administration has defended each of the two secret programs. Let’s examine them in turn.

      Edward J. Snowden, the former N.S.A. contract employee and whistle-blower, has provided evidence that the government has phone record metadata on all Verizon customers, and probably on every American, going back seven years. This metadata is extremely revealing; investigators mining it might be able to infer whether we have an illness or an addiction, what our religious affiliations and political activities are, and so on.

      The law under which the government collected this data, Section 215 of the Patriot Act, allows the F.B.I. to obtain court orders demanding that a person or company produce “tangible things,” upon showing reasonable grounds that the things sought are “relevant” to an authorized foreign intelligence investigation. The F.B.I. does not need to demonstrate probable cause that a crime has been committed, or any connection to terrorism.

      Even in the fearful time when the Patriot Act was enacted, in October 2001, lawmakers never contemplated that Section 215 would be used for phone metadata, or for mass surveillance of any sort. Representative F. James Sensenbrenner Jr., a Wisconsin Republican and one of the architects of the Patriot Act, and a man not known as a civil libertarian, has said that “Congress intended to allow the intelligence communities to access targeted information for specific investigations.” The N.S.A.’s demand for information about every American’s phone calls isn’t “targeted” at all — it’s a dragnet. “How can every call that every American makes or receives be relevant to a specific investigation?” Mr. Sensenbrenner has asked. The answer is simple: It’s not.

      The government claims that under Section 215 it may seize all of our phone call information now because it might conceivably be relevant to an investigation at some later date, even if there is no particular reason to believe that any but a tiny fraction of the data collected might possibly be suspicious. That is a shockingly flimsy argument — any data might be “relevant” to an investigation eventually, if by “eventually” you mean “sometime before the end of time.” If all data is “relevant,” it makes a mockery of the already shaky concept of relevance.

      Let’s turn to Prism: the streamlined, electronic seizure of communications from Internet companies. In combination with what we have already learned about the N.S.A.’s access to telecommunications and Internet infrastructure, Prism is further proof that the agency is collecting vast amounts of e-mails and other messages — including communications to, from and between Americans.

      The government justifies Prism under the FISA Amendments Act of 2008. Section 1881a of the act gave the president broad authority to conduct warrantless electronic surveillance. If the attorney general and the director of national intelligence certify that the purpose of the monitoring is to collect foreign intelligence information about any non­American individual or entity not known to be in the United States, the Foreign Intelligence Surveillance Court can require companies to provide access to Americans’ international communications. The court does not approve the target or the facilities to be monitored, nor does it assess whether the government is doing enough to minimize the intrusion, correct for collection mistakes and protect privacy. Once the court issues a surveillance order, the government can issue top-secret directives to Internet companies like Google and Facebook to turn over calls, e-mails, video and voice chats, photos, voice­over IP calls (like Skype) and social networking information.

      Like the Patriot Act, the FISA Amendments Act gives the government very broad surveillance authority. And yet the Prism program appears to outstrip that authority. In particular, the government “may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.”

      The government knows that it regularly obtains Americans’ protected communications. The Washington Post reported that Prism is designed to produce at least 51 percent confidence in a target’s “foreignness” — as John Oliver of “The Daily Show” put it, “a coin flip plus 1 percent.” By turning a blind eye to the fact that 49-plus percent of the communications might be purely among Americans, the N.S.A. has intentionally acquired information it is not allowed to have, even under the terrifyingly broad auspices of the FISA Amendments Act.

      How could vacuuming up Americans’ communications conform with this legal limitation? Well, as James R. Clapper Jr., the director of national intelligence, told Andrea Mitchell of NBC, the N.S.A. uses the word “acquire” only when it pulls information out of its gigantic database of communications and not when it first intercepts and stores the information.

      If there’s a law against torturing the English language, James Clapper is in real trouble.

      The administration hides the extent of its “incidental” surveillance of Americans behind fuzzy language. When Congress reauthorized the law at the end of 2012, legislators said Americans had nothing to worry about because the surveillance could not “target” American citizens or permanent residents. Mr. Clapper offered the same assurances. Based on these statements, an ordinary citizen might think the N.S.A. cannot read Americans’ e-mails or online chats under the F.A.A. But that is a government ­fed misunderstanding.

      A “target” under the act is a person or entity the government wants information on — not the people the government is trying to listen to. It’s actually O.K. under the act to grab Americans’ messages so long as they are communicating with the target, or anyone who is not in the United States.

      Leave aside the Patriot Act and FISA Amendments Act for a moment, and turn to the Constitution.

      The Fourth Amendment obliges the government to demonstrate probable cause before conducting invasive surveillance. There is simply no precedent under the Constitution for the government’s seizing such vast amounts of revealing data on innocent Americans’ communications.

      The government has made a mockery of that protection by relying on select Supreme Court cases, decided before the era of the public Internet and cellphones, to argue that citizens have no expectation of privacy in either phone metadata or in e-mails or other private electronic messages that it stores with third parties.

      This hairsplitting is inimical to privacy and contrary to what at least five justices ruled just last year in a case called United States v. Jones. One of the most conservative justices on the Court, Samuel A. Alito Jr., wrote that where even public information about individuals is monitored over the long term, at some point, government crosses a line and must comply with the protections of the Fourth Amendment. That principle is, if anything, even more true for Americans’ sensitive nonpublic information like phone metadata and social networking activity.

      We may never know all the details of the mass surveillance programs, but we know this: The administration has justified them through abuse of language, intentional evasion of statutory protections, secret, unreviewable investigative procedures and constitutional arguments that make a mockery of the government’s professed concern with protecting Americans’ privacy. It’s time to call the N.S.A.’s mass surveillance programs what they are: criminal.

      Jennifer Stisa Granick is the director of civil liberties at the Stanford Center for Internet and Society. Christopher Jon Sprigman is a professor at the University of Virginia School of Law.


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