Barry Eisler

Friday, August 14, 2015

What Jeb Bush Owes Obama

Cross-posted at Freedom of the Press Foundation:

Well, I guess this is a thing now…people running for president musing about whether they might reintroduce the torture techniques Obama purported to prohibit when he took office. The latest is Jeb Bush; three years ago, it was candidate Romney.

The fact that torture is framed by these candidates as a policy choice, and the possibility that one of them might in fact reintroduce it, is one of Obama’s chief legacies. He chose not to prosecute torture as a crime, instead banning it (or some of it, anyway) via executive order. As I’ve said before:

Obama has no more power to prohibit torture than Bush had to permit it. Torture is illegal in America. The law, not the president, is what prohibits torture. What would you make of it if the president said, “That is why I prohibited murder. That is why I prohibited rape. That is why I prohibited embezzlement, and mail fraud, and tax evasion…” In America, the president doesn’t make the law, nor does he rescind it. The president executes the law—which is why Article 2 of the Constitution is called “The Executive Branch.” Presidents who make and rescind laws at will are more commonly known as kings.

Remember: what one president by fiat prohibits, another at his or her pleasure can permit. Anyone who cheers Obama’s torture “ban” is missing the insidious, long-term effect of that ban…and could probably use a refresher course on civics, too.

Torture: de jure illegal; de facto policy. Remember Hope and Change? No, it hasnt gone away. Its just become a punch line.
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Saturday, August 01, 2015

Publisher Lobbyist “Unprecedented Joint Action!”

Life is too short to continually respond to self-serving publishing establishment bloviation, so I was going to ignore this American Booksellers Association “interview” of Mary Rasenberger, the Executive Director of the Authors Guild. It’s such a regurgitation of long-since debunked legacy publisher talking points that the most useful thing you could do with it is play Bullshit Bingo: Amazon a Monopoly…Devaluing Books…Free Flow of Ideas…Engine of Democracy…Bingo! Besides, Nate Hoffelder and Joe Konrath have already performed the thankless task of acting as this week’s bucket brigade and responding to this latest cycle of the same old publishing establishment bullshit.

But then I realized: the piece is such a purified expression of publishing propaganda that even apart from the tired, repeatedly debunked substance (a charitable word, under the circumstances), there were a few propaganda aspects worth noting.

First, though the answers Rasenberger provides are entirely predictable (and indeed, have been debunked so many times they’re not worth addressing with anything more than a link or two), the questions themselves are revealing. Here’s a sample:

How has Amazon’s abuse of its dominance in the book industry directly affected authors?

How have Amazon’s punitive actions against publishers, such as Hachette during their 2014 contract dispute, impacted authors?

According to some news reports, self-published authors who once thought of Amazon as their ally are now feeling victimized. Why is that?

As Amazon continues to sell huge numbers of titles below cost and uses them as loss leaders to entice sales on other segments of its website, what will be the long-term effect on a thriving and robust literary marketplace?

Holy “When did you stop beating your wife,” Batman!

If you were a legacy publisher…if you were an Amazon competitor…if you were any one of the unprecedentedly joint actors…indeed, if you were a clone of Mary Rasenberger, Executive Director of the Authors Guild, interviewing yourself!—would you phrase even one of these embarrassingly loaded questions differently?

Assuming you had an exceptionally low shame threshold, you wouldn’t. The questions would all be the same.

Which brings us to the second revealing aspect of this propaganda-masquerading-as-an-interview drill. You see, in the standard “blow-job masquerading as interview” gambit, it’s generally enough to hope the reader will just assume the interviewer and interviewee are working at arms-length. Making the point explicitly isn’t really the done thing. Here, however, perhaps not trusting readers to be sufficiently gulled, the ABA and AG are at pains to describe the “unprecedented joint action” of the AG, Authors United, the ABA, and the Association of Authors’ Representatives in going after Amazon for monopolizing the marketplace of ideas, devaluing books, and generally crushing dissent, democracy, and all that is good. The impression they’re trying to create is, “Wow, if so many separate organizations hate Amazon, Amazon must be doing something bad.”

But what’s critical to understand is that the most fundamental purpose of the Authors Guild, Authors United, the American Booksellers Association, and the Association of Authors Representatives is to preserve the publishing industry in its current incarnation. Whatever marginal differences they might have (I’ve never actually seen any, but am happy to acknowledge the theoretical possibility) are eclipsed by this commonality of purpose. Under the circumstances, the fact that these four legacy publisher lobbyists agree on something is entirely unremarkable (indeed, what would be remarkable would be some evidence of division). But if people recognize the exercise as a version of “No really, I read it somewhere…okay, I wrote it down first,” the propaganda fizzles. And that’s why these propagandists have to nudge readers with the bullshit about the “unprecedented joint action.” Otherwise, when Authors Guild Executive Director Mary Rasenberger cites Authors United pitchman Doug Preston as though Preston were a separate, credible source, people might roll their eyes instead of nodding at the seriousness of it all. They might even giggle at the realization that all those “When did Amazon stop beating its wife?” questions were functionally being put by Rasenberger to herself.

So no, this wasn’t remotely a cross-examination, or even a cross pollination (indeed, publisher lobbyists are expert at fleeing anything that offers even the slightest whiff of actual debate—which does make their alleged devotion to the Free Flow of Ideas and Information as the Engine of Democracy worthy of a smile, at least, if nothing else). It was just a stump speech lovingly hosted by someone else’s blog. The sole reason for the exercise was to create the misleading appearance of multiple, arms-length actors when functionally there is only one.

In fairness to the aforementioned Unprecedentedly Joint Actors, there is a rich heritage behind this form of propaganda. For example, in the run-up to America’s second Iraq war, Dick Cheney would have someone from his office phone up a couple of pet New York Times reporters, who would then dutifully report that anonymous administration officials believed Saddam Hussein had acquired aluminum tubes as part of his nuclear weapons efforts…and then Cheney would go on all the Sunday morning talk shows and get to say, “Don’t take my word for the aluminum tube stuff—even the New York Times is reporting it!”

So leave aside the fact that the “joint action” in question is anything but unprecedented—that it is in fact publishing establishment SOP. Anyone familiar with the record of these organizations will instantly realize that the “unprecedented joint action” in question is a lot like the “joint action” of all four fingers—plus the thumb!—of someone throwing back a shot of tequila. Like that of a little boy pleasuring himself—with both hands!—and trying to convince anyone who will listen that the Unprecedented Left and Right Action is proof that “Everybody loves me!”

The third aspect of this publisher lobbyist propaganda worth mentioning is the standard “we’re just disinterested, non-partisan, democracy-loving onlookers” dodge. Authors United, one of the partner organizations cited by both the ABA and the AG in the piece (they all work so hand-in-glove and cite each other so promiscuously they can be hard to distinguish) is particularly shameless in this regard, repeatedly proclaiming “We’re not taking sides” even while buying $100,000 anti-Amazon ads, sending complaints to the Amazon board of directors, and lobbying the Justice Department to break up Amazon. I’d ask Author United’s Doug Preston what more he would do against Amazon if he were taking sides, but these organizations never engage their critics (a tactic that could fairly be cited as its own form of propaganda).

Here, the ABA AG is careful to issue the standard “We’re not anti-Amazon!” disclaimer—a disclaimer that serves as its own punch line given the surreally tendentious questions that follow it, and given that the very title of the piece is “Why Amazon Deserves Antitrust Scrutiny.” It’s like the old French joke about Germany—“We love Germany so much we think there should be two of them.” The jointly-acting, non-side-taking, non-anti-Amazon ABA, AG, AU, and AAR actually love Amazon—so much they want the company broken into multiple bite-sized chunks!


You know what, though? I doubt even the Unprecedented Joint Actors believe their own storyline. Because a resort to this type of crass propaganda isn’t a sign of confidence or strength. It’s a recognition that people aren’t buying your bullshit. That doesn’t mean the Unprecedented Joint Actors won’t prevail—after all, Cheney did, so we know that sometimes the propagandists win. But this is why it’s so important that their tactics, as well as their aims, be constantly exposed.
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Thursday, July 30, 2015

Authors Guilded, United, and Representing…Hah

Guest-blogging today with Techdirt on how all these “Author This, Author That” organizations are fundamentally publisher lobbyists:


One of the more Orwellian aspects of the book world is the number of publisher advocate groups calling themselves Author This and Author That. The Authors Guild, Authors United, the Association of Authors’ Representatives…their devotion to protecting the interests of authors is right there in the names, right? No further inquiry necessary.

 That’s the idea behind the misleading nomenclature, anyway. But even a cursory glance at the behavior of all these “author” organizations reveals their true priorities and actual allegiances.

Let’s start with the Authors Guild, which claims to “have served as the collective voice of American authors,” and which describes its mission as...

Read the whole thing at Techdirt.
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Monday, June 15, 2015

Making Torture Illegal—Again

You might have read about the McCain-Feinstein Amendment introduced last week—an attempt to prevent a recrudescence of the torture that began with the Bush/Cheney administration and that was solidified by Obama’s decision to “ban” torture via executive order as a matter of policy rather than prosecute it as a matter of law. Obama’s ban included a requirement that interrogations would henceforth be limited to the techniques specifically enumerated in the Army Field Manual. The AFM limitation was no panacea (and no matter where you stand on McCain-Feinstein, I recommend this terrific contrary view from Jeff Kaye in Firedoglake and this one from David Swanson) but it does seem to have curtailed at least some of the barbarity of the Bush/Cheney years, and the McCain-Feinstein amendment would codify that requirement into a law.

(I’ve said it many times before, but still I want to pause here to note that one president has no more power to prohibit what’s already illegal than another president has to permit it, and Obama purporting to “ban” torture is about as coherent a notion as Obama purporting to ban murder, arson, embezzlement, or rape. The constitution provides that the president “shall take care that the laws be faithfully executed,” and Obama’s failure to do so despite the requirements of the United Nations Convention Against Torture and other laws by which the United States is bound is a violation of that oath.)

Laws that demonstrably will not be enforced are de facto no longer laws (imagine if the government decided to “look forward, not backward” regarding bank robberies, for example), and so the Bush/Obama one-two punch presented a conundrum to anyone opposed to torture: how do you advocate against something that’s already criminal but that the government has insidiously turned into a mere matter of policy? A terrific organization called Human Rights First has adopted a two-prong approach: decrease the political attraction of torture by educating the public about how torture is ineffective, contrary to the values America claims to champion, and detrimental to national security; and re-introduce the possibility of prosecution for torture by helping to pass new laws that would be more difficult for unscrupulous lawyers to turn into mockeries.

I’m proud to have been part of both these efforts, each of which has involved an extraordinary collection of former generals, admirals, CIA case officers, law enforcement officers, and interrogation professionals who between them have hundreds of years of relevant experience. And coinciding with the introduction of the McCain-Feinstein amendment, last week we were in DC meeting with various senators and staff we thought might be amenable to our message.

I confess it was a little surreal and dispiriting at times to realize we were trying to persuade American legislators that torture is a bad idea. I mean, that’s a pretty remedial level of lobbying. What’s next—You know, Senator, it occurs to me the government really shouldn’t conduct syphilis experiments on unsuspecting patients? You’d just think that in 2015, we’d be past that level of inhumanity and could focus on more advanced topics. And yet.

Anyway, I can’t imagine anyone but the most hardened ideologue or cynical politician spending time with this group and coming away still believing that torture is in any way a good idea for America, and my sense is that we might have changed a few minds. There’s something inherently awkward about insisting on believing something based on absolutely no relevant experience when a roomful of people with hundreds of years of experience in that thing is telling you the opposite.

It’s worth pausing to emphasize that point: The world’s most experienced and accomplished intelligence, military, and law enforcement interrogators all agree that torture is ineffective, contrary to the values America claims to champion, and detrimental to our national security. It’s not just that the actual experts don’t need torture to be available; they don’t want it to be available.

Conversely, the people most enthusiastic about torture—Dick and Liz Cheney; Mark Thiessen; John Yoo, to name just a few—have no interrogation experience at all. It’s not a coincidence that these people tend to argue for torture in the form of clichés—take the gloves off, do whatever it takes, get tough on terrorists—because the chief function of a cliché is to provide a comforting substitute for actual thought. But it’s also interesting that the clichés in question tend to focus on tactics rather than objectives, because a focus on tactics rather than results is one of the defining features of an amateur.

Professionals focus on the results they want, and dispassionately select the techniques most likely to achieve those results. Amateurs focus on the techniques they want to use because the techniques themselves are the source of their gratification. So it’s telling that the people who most want to torture aren’t, judging by their own rhetoric, primarily interested in actionable intelligence. They’re primarily interested in torture. And the people most interested in actionable intelligence are the ones least interested in torture.

To put it another way: you don’t have to be Sun Tsu to know that you don’t win a fight by doing what feels best to you; you win by doing what is worst for your enemy.

John Oliver got a lot of this right last night on Last Week Tonight. The 15-minute clip is, as usual with Oliver, both hilarious and far more informative than most mainstream coverage. Its primary shortcoming, I think, is its failure to mention that torture was already illegal on 9/11; that in ordering torture, Bush and Cheney were committing criminal acts; and that in failing to prosecute the officials who ordered torture, Obama has violated his oath of office. A little more discussion of Appendix M of the Army Field Manual would have been great, too, because even if McCain-Feinstein passes, the fight against torture will have to go on.


Amateurs think tactics; professionals think strategy. In this regard, as part of our efforts, former navy general counsel Alberto Mora was part of a panel in which he pointed out that torture was a profoundly tactical decision. Whatever it might have accomplished in any individual instance (and the evidence suggests it accomplished nothing useful at all), it cost us the cooperation of our allies who refused to go along with torture and of local populations who became understandably reluctant to inform lest they deliver up a neighbor into barbarity. It’s worth remembering that Nazi soldiers fled the Soviet advance from the east, hoping to be captured by American forces advancing from the west because of America’s reputation for humane treatment of captives (and the Soviet army’s reputation for brutality). Imagine the intelligence boon we achieved because German soldiers wanted us to capture them. Now imagine if our reputation had instead been for brutality, and those German soldiers had decided they’d best flee in the other direction.

Along these lines, I also spent time with Torin Nelson, a former soldier who has conducted and supervised thousands of interrogations in Afghanistan and Iraq and at Guantanamo. It was sobering to hear him describe how nearly every jihadist he interrogated cited Abu Ghraib and Guantanamo as the causes that impelled them to pick up arms. Former Air Force interrogator Matthew Alexander, also a member of the Human Rights First group, has made similar points, arguing that torture is probably responsible for more Americans killed than 9/11 itself.

If you’re relatively new to this topic, here are a few posts I’ve written over the years addressing the various torture apologist arguments:



It’s interesting to see how the “facts” apologists used to cite have all been overtaken by evidence. And yet the apologists continue to agitate for a return to what Dick Cheney’s “dark side.” I hope the work I was honored to be part of last week will make that prospect more difficult.
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Monday, June 08, 2015

Snowden DoublePlusUngood

Guest blogging today with the Freedom of the Press Foundation, a terrific organization that deserves your support. Why Snowden DoublePlusUngood? Because Orwell predicted all of it. Read on...

It was great to read this Edward Snowden New York Times op-ed—great because the piece is as thoughtful and informative as you’d expect, and even better because it’s an example of Snowden’s continuing ability to raise awareness of the dangers of an unchecked surveillance state. In fact, Snowden has been notably public of late, giving interviews, addressing huge crowds, receiving awards, and otherwise adding to and amplifying the worldwide discussion he catalyzed with his revelations of two years ago (this short video gives an idea of how many people Snowden has been reaching).

It’s interesting to see just how much the US government and its authoritarian backers hate Snowden’s ability to continue to contribute to the mass-surveillance debate. Prosecutors are actually trying to persuade judges to prohibit Snowden’s name being uttered in court (a tactic Snowden’s lawyer, Ben Wizner of the ACLU, aptly tweeted as He Who Must Not Be Named). Former Bush 2 White House Press Secretary and Fox News personality Dana Perino, apparently not realizing her Fox colleagues have themselves been trying to land a Snowden interview, protested that “The New York Times op-ed page gives valuable space to a traitor,” and Council on Foreign Relations war enthusiast Max Boot issued a similar complaint (the Boot piece also stands out as a masterpiece of psychological projection). As Jason Leopold has revealed, various lawmakers begged the Defense Intelligence Agency for classified dirt they could use to discredit Snowden. And the government’s use of the Espionage Act, which whistleblower attorney Jesselyn Radack explains has morphed into a strict liability law that precludes defendants from explaining their actions, is itself a deliberate attempt to silence the voices of Snowden and whistleblowers like him.

Even by the standards of an age where a new mass-surveillance law is named The Freedom Act (admittedly, something of an improvement on its mass-surveillance progenitor, The Patriot Act, but still), there’s a lot of Orwell at work here. Protests about Snowden having a public forum are really complaints about Thoughtcrime. Lawmakers trying to smear Snowden are hoping to turn him into Emmanuel Goldstein. The government’s efforts to prohibit even the utterance of Snowden’s name in court, and its use of the Espionage Act itself, are attempts to render Snowden an unperson.

Of course, the entire “if you have nothing to hide, you have nothing to fear” rubric is itself an internalization of the dangers of Ownlife, aka privacy. Snowden himself...

Read the rest here at Freedom of the Press Foundation.
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