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Amerika the Beautiful: An Insider’s View of What Went Wrong and How To Fix It

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UPDATE: Following a week of almost daily new disclosures, we are republishing our original article with some additional observations from us and others who have been following what will almost certainly turn out to be one of the most shocking and important revelations in the history of our republic. Much of this story has unfolded on Twitter, one of the few companies that stood up to the government and refused to participate in the PRISM data collection enterprise. So it seemed only fitting to retell the events of the last few weeks through the tweets that have brought this story to life and fleshed out many of the details pertaining to Mr. Snowden’s original revelations. –Ward Mundy


As the cellphone and NSA scandals continue to unfold, we’ve wrestled with a number of emotions probably much as many of you have. This isn’t so much a liberal versus conservative controversy as it is a question about what type of society we all want for our families and for those that will come after us. Having grown up in a military family, I came in contact with individuals from literally all walks of life, commanding generals to sergeants and privates. Most did their jobs very well and took pride in their accomplishments and those of others. After high school, I attended Auburn University and then went on to law school at the University of Alabama, two schools known more for their football teams than their academic credentials. Even though the country was in the midst of the George Wallace era of states’ rights, I actually got a well-balanced legal education at Alabama. Much to the chagrin of the governor, many of my law professors were Yankees from the most liberal bastions in our country including Harvard and Yale. So it was probably not surprising that more than half of my law class of 130 became card-carrying liberals. In fact, I only remember one ultra-conservative classmate, and we never were sure whether he believed all the things he was saying or was just doing it for attention and to establish his pedigree for future political races.

We were up to our eyeballs in Vietnam when I graduated so my career path was chosen for me. Those with political connections and those from well to do families got to join the National Guard and stay home. The rest of us got drafted. If you were a lawyer, you had the choice of serving two years as an infantry officer or four years as a lawyer. That was an easy choice at least for me because I owed the military four years anyway because of a college scholarship. There was a great book at the time, Military Justice is to Justice as Military Music is to Music. You really didn’t have to read the book to figure out the message. As an appellate lawyer, I got to witness it up close and personal. Military courts have special rules. Military commanders decide who gets tried and then they hand-pick the military juries who also happen to be soldiers working for the same commander. If a criminal case went to trial, your odds of not being convicted were about the same as being struck by lightening or winning the lottery. The same held true for the criminal appeals. All of my clients were already serving time in Fort Leavenworth while I "represented" them in Washington. A handful saw their sentences reduced on appeal while one or two actually had their cases reversed. Despite the odds favoring the military, I actually worked for an appellate judge that would hide problematic cases in a bottom drawer until the soldier had served all his jail time. Then the case would magically reappear, and justice would be done by reversing the errors in the trial proceedings. Several of us finally filed a complaint against the judge, and he was "retired." This was my first exposure to the "Rewards System." Many folks are promoted into prestigious jobs in the government not to do future good work but as a reward for past service. In short, it’s treated more like a medal than a job. Suffice it to say, you don’t see a lot of boat rocking from the honorees.

At the time, I chalked this up as yet another military anomaly. It was reinforced by the decade I spent at all levels of the military justice system including a stint as the Court Executive of the U.S. Court of Military Appeals, the civilian court that oversaw the whole process. What was surprising to me were the extremes to which many individuals in the most important legal positions in the military were willing to go in order to rig the system in favor of what they perceived to be the desires of the military commanders. My dad had been a military commander. He and all of the commanding generals I have known would never have tolerated such a setup had they known about it. While the President technically appointed judges to the Court of Military Appeals, in actuality the judges were selected by members of the Senate Armed Services Committee. Because the Court had become too liberal for some of the senior people in Donald Rumsfeld’s Defense Department, they decided to change the name of the court to make it sound more like a real federal court. While they were at it, they expanded the number of judgeships in order to get rid of the "liberal problem." Killing two birds with one stone wasn’t hard with the enthusiastic support of Strom Thurmond and the armed services committees. They "promoted" the most liberal judge to a district judgeship with life tenure to get him out of town.

When the court packing began, I left and joined the staff of the newly created U.S. Court of Appeals in Atlanta. There I served for more than 20 years as the technology guru. During my tenure, we introduced personal computers, networks, VPNs, video conferencing, cellphones, automated case management systems, and the 20th century to many judges and lawyers that still were deciding cases in much the same way they had been handled since the founding of our country.

Unlike the military system, the federal courts were different. These judges weren’t wearing medals. They took their jobs seriously. All were appointed for life by the President, and most had come from cream of the crop positions in the most prestigious law firms and law schools in the country. Many that I worked for had single-handedly desegregated the South: its schools, its lunch counters, its water fountains, and even its bathrooms. No small feat considering there were still Ku Klux Klan signs announcing evening meetings when I would drive back to school on Sunday afternoons.

I had almost daily contact with these judges because our courts in the southeastern United States were handling caseloads at least 10 times what other courts across the country were experiencing. And, without the very best technology, these courts would literally have been buried by the paperwork associated with these legal proceedings. It began with civil rights cases, then voting rights, then drugs, then bankruptcies, then death penalties, and on and on.

But something changed at about the time Ronald Reagan became president. Many of the new judges that were appointed had come from prior government jobs. Some had been magistrates. Others had been state court judges. Many had been former federal or state prosecutors or lawyers in the Department of Justice. Some were small town lawyers who happened to serve as a community campaign manager for the president or a staff assistant to a U.S. Senator. There was even a former nun. What was different was that many of them came with an agenda. And many of the selections were more about ideology than legal accomplishment. We’ve now seen that process play out for more than 30 years. With some notable exceptions, many "medalists" have crept into the federal judiciary at all levels. Free resort junkets for judges sponsored by organizations with their own agenda are all too common. As we saw in the military setting, the perks of the office and living the country club life style started mattering more than doing the job. Keep in mind that these judges serve for life with almost no outside scrutiny. When you then add secret tribunals to the mix, it makes for a dangerous concoction with no checks and balances.


There also was a metamorphosis underway in Congress. Southern Democrats became Republicans largely because of the civil rights statutes championed by Lyndon Johnson. Southern Democrats had always held their nose and gone along with the agenda of the Democratic Party as long as separate-but-equal was left in place. When "the deal" changed, they bolted. Big business was getting a very different foothold in Congress. A law school classmate of mine who became a very prominent lobbyist on Capitol Hill once told me that there was no bill he couldn’t get passed if his client had deep enough pockets.

https://twitter.com/davidsirota/status/345686857562066944


The Oligopoly Revolution was also underway. Virtually every American industry now has less than a handful of players which has led to skyrocketing prices: Big Oil, Big Banks, Automobiles, Airplane Manufacturers, Airlines, Technology, Communications, Hospitals, Drug Manufacturers, Health Care Providers, Fast Food, Grocery Stores, Hardware Stores, and Drug Stores to name just a few. There really is no space left for the little guy and the entrepreneur. Price fixing by manufacturers now is perfectly legal. Software patents appeared out of thin air and have essentially killed off independent software development unless you work for the handful of leading technology companies that can afford a patent portfolio.


And then there was 9/11. In response to the threat of terrorism and under the convenient umbrella of national security, Congress has all but repealed the constitutional protections laid out in the Bill of Rights while establishing a National Security Agency that would have been the envy of Adolph Hitler and Joseph Stalin. The "new" federal courts have routinely rubber-stamped every piece of this legislation. And then came the secret FISA court with secret proceedings and secret decisions and secret court orders and no public appeals. If you read nothing else, read this article in The Verge. Here’s an excerpt:

The 9/11 terrorists should be proud. They have single-handedly changed our entire security apparatus (not to mention our judicial system) to one that looks frighteningly similar to what you would find in Pakistan, China, or North Korea. And the response from the President and Congress… "Gosh, we’re all so much more secure when we can identify the calling history of every single cellphone user and can intercept every email communication in the universe." And the American Technology Oligopoly appears to have gone right along with it while lying their asses off about what has happened. Who needs the keys to your house? They’ve already got access to every piece of personal data you create!

We obviously hope some of this story turns out not to be true, but then there’s this:


The problem is that Congress and some within the judiciary have so tilted the playing field that it’s hard to have much faith in any of our public institutions any more. Just to reemphasize, this has nothing to do with Democrats or Republicans. It has to do with almost all of our national politicians who have sold themselves out to the highest bidder.


So how do we fix this mess? For the short term, stop using browsers to generate or read email. Encrypt your email and stop using Gmail, HotMail, and Yahoo. Use VPNs for communications whenever possible. And Silicon Valley needs to take a careful look in the mirror. They are a major part of the problem.


Then it’s time to take our country back. Those of us that continue to sit on the sidelines deserve what we get. What we really need is a new Constitution that actually has some meaning. Every person in the United States should get to vote on it, and it shouldn’t be based on gerrymandered political districts that favor a particular political party. As part of the process, throw all of these bums out. Every one of them regardless of political party! Then dismantle their retirement benefits and healthcare perks. Limit future elected officials to six years in office with no special benefits of any kind. It’s service to your country, not a career or mutual admiration society. Promulgate strict laws outlawing all lobbying of Congress by paid individuals. Force congressmen to write their own legislation rather than relying upon the work of corporate America. Pass laws that severely penalize companies that ship American jobs and corporate revenue overseas. Corporations are not people. Nor are they U.S. citizens. Stop pretending they are. Establish minimum tax rates for every person and every company doing business in the United States. Everybody who lives here should have to pay their fair share of the costs. Get rid of all the tax loopholes that have rigged the system in favor of special interest groups that literally have bought Congress. The rest of the problems will fix themselves hopefully in time for our kids to once again enjoy living and prospering in our great country.

We share the sentiments and recommendations of Hendrik Herzberg in The New Yorker:

Calling for a national commission can be the last refuge of the high-mindedly perplexed, but this is one instance when such a commission—independent, amply funded, possessing subpoena power, and with a membership and a staff deeply versed in both national security and civil liberties—may be precisely what is needed. The N.S.A. programs represent a troubling increase in state power, even if—so far, and so far as we know—they have not occasioned a troubling increase in state wrongdoing. Obama’s “difficult questions” have a new urgency. Are the programs truly efficacious? Do they truly provide an extra margin of safety sufficient to justify the resources poured into them, to say nothing of the domestic and international anxieties they inevitably provoke? Is it wise to entrust so many of their activities to the employees of private companies, which are ultimately answerable not to the United States and its Constitution but to corporate stockholders? Did it make sense to construct an intelligence behemoth that apparently cannot operate without giving an enormous number of people—more than a million—top-secret security clearances? And in what ways, exactly, might an ill-intentioned yet formally law-abiding Administration use its powers for nefarious purposes? From what we know so far—well, we know far too little, still.

Finally, let us close by pointing you to Steve Wozniak’s commentary on this mess. We couldn’t have said it better…

https://twitter.com/declanm/status/346512577355980800

Originally published: Sunday, June 9, 2013

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10 Comments

  1. "What we really need is a new Constitution that actually has some meaning."

    Discussing changes to the United States constitution is like discussing changes to the weather – you can talk about it all you want but it is very unlikely anyone will be able to change it in the foreseeable future.

    I wish I were wrong, and would love to be proven wrong in this case. But, do you know of anyone that is making a serious effort to collect and curate the best ideas on how to change the Constitution? As far as I know, no one is even making a serious effort. A good first step would be to set up a web site or some other mechanism to collect serious ideas for constitutional reform, and I don’t think anyone has set out to do that.

    One reason our constitution no longer works is because it is so old and in no way representative of the values of people today. The people have one set of values, the constitution quite another. Given how fast the world is changing, it would be as if the people of 1776 were using laws that were written for ancient Sumerian or Egyptian societies. We are a different breed of people now, with different values, yet are legislators are still working with laws that were written when riding on a horse was the fastest way to get from place to place, when people died at a much younger age, when slavery and racial discrimination were common, when women were expected to marry, stay home and raise kids and keep their mouths shut, and when guns had to be fired one shot at a time and after taking that shot you had to stop and reload your powder and bullet. It was a time when agriculture, logging and furs were main drivers of an economy. It was a time when a newspaper was the primary form of mass communications, and there were no wire services, so no way to conduct a mass media campaign. I could go on but the point is that the world back then in no way resembles the world we have today, yet we are trying to interpret laws written for that era as though they will still work in this era.

    But the reason I think it doesn’t happen is because everyone is afraid of what a new constitution might be like. We fear, probably with considerable justification, that the special interests and big corporations that manipulate our laws and legal system today would just love the opportunity to help craft a new constitution. And you know they would use every bit of propaganda and mind manipulation at their disposal to get what they want. If you think our constitution couldn’t be worse, think about what it would be like if the corporations, special interests, and fundamentalist religious zealots got together and tried to craft one that would make them all the rulers of their respective domains.

    Not to mention that our founding fathers deliberately made the constitution extremely difficult to change. Of course that does not stop the lawmakers and especially the courts from making defacto changes by passing laws that modify the meaning or intent. But far too often such modifications only benefit the rich and powerful.

    Some things to consider: We do not live in a democracy, but a republic. Many people don’t understand the difference, and any teacher that teaches that we live in a democracy should be fired on the spot. In the past it was impractical to have true democracy, where every citizen had the opportunity to vote on every issue. But with modern technology, there is no longer such a high barrier to that. What if we actually tried true democracy, where we cut out the senators and congressmen and actually let people directly vote on the issues that matter to them? Would that work or would it result in an even more chaotic mess than we have now?

    Our voting system is quite possibly one of the worst methods ever devised. For a partial explanation, watch CGPGrey’s videos dealing with the subject of voting at http://www.cgpgrey.com/politics-in-the-animal-kingdom/ , particularly the first one on "The Problems with First Past the Post Voting"

    The concept of "intellectual property" may have seemed like a good idea when the country was founded, but it could now be argued that patents and copyrights do more to retard progress than advance it. It was an artificial concept to begin with, so maybe we should throw those laws our altogether, but if not, at the very least they need serious reform so as to return to the original intent of advancing progress, and not just creating monopolies and businesses that make their livings by gouging and suing customers and other businesses.

    Our education system is in serious need of reform. Kids and families go into debt to go to college, and often that college education does not significantly improve their chances for career advancement. And aren’t there better ways to learn then being lectured by a teacher or professor?

    One of the amendments to the current constitution was meant to protect the free exercise of religion, and that’s good, but does it also mean that churches should be exempt from paying taxes on property they own, or that "ministers" should be able to flout many of the laws that apply to the rest of us, or that a particular religion should be able to have its moral standards enacted as the law of the land? Some of the happiest nations in the world (the Scandinavian countries) are also among the least religious, yet they still permit freedom of worship. Why do the fundamentalist religious types have so much influence AND get away with not paying taxes or having to obey certain other laws, e.g. zoning laws?

    Then there are our wacky laws about drugs. By any measure, alcohol is much worse than marijuana, especially if you are driving a car, not that you should drive under the influence of either. But yet alcohol consumption is revered as almost a rite of passage for young people while using marijuana can get you serious prison time, at taxpayer expense, and a record that follows you the rest of your life. And with respect to other drugs, if it’s offered by a pharmaceutical company at an outrageous charge to consumers, then it’s okay, but if it doesn’t come from big pharma then it’s bad and in many cases you can be arrested for possessing or using it. And while on the subject, shouldn’t affordable healthcare and medication be a right for all people, rich or poor? Most other developed countries seem to think so, why don’t we? Oh, right, because there’s big money to be made by gouging people in the medical offices, hospital, and pharmacies. To bad if people end up destitute because they had the misfortune to get sick.

    And then there are guns. Few people want nutcases running around with automatic weapons, yet our courts and legislators seem to think that our constitution protects that, and don’t they love those campaign contributions from the gun and ammunition manufacturers. The rest of the world thinks we are absolutely insane. They have sane gun control in Canada, and people are still able to go hunting, and guns and ammunition are sold there, yet you almost never hear of a school shooting or some nutjob firing at people from a tower up there.

    Speaking of Canada, we could do a lot worse than simply adopt their constitution. I don’t know if this is true, or the actual details, but I once heard that the reason Fox News doesn’t operate in Canada is because there is some kind of prohibition against lying on the airwaves. Imagine if we had that in the Unites States, actual laws against lying to the public with some real teeth in them. For example, supposed that politicians could be barred from holding or running for public office if they were convicted of lying to the media or the public. Suppose broadcasters could lose their licenses if they knowingly and deliberately broadcast untrue news. Yes we consider freedom of speech a core value, but should that also carry with it a freedom to lie with impunity?

    There are probably many other things that need reform, and those need to be discussed also. But my feeling is that we are now at a kind of tipping point. For so many years, the majority of people trusted the government, and it was considered "unpatriotic" to say the government was in the wrong (those of us that lived through the VietNam War era know how heated those types of conversations could get). But lately, there has been a real change in people’s attitudes. I think almost everyone realize that our government has become corrupt, and in some ways, almost as bad as the old soviet-style governments we used to pretend to hate so much. Since 9/11 our freedoms have been taken away; you can’t even cross the border into our friendly neighbor to the north Canada and then come back without a lot of hassle. Just ask the people living in Derby Line, Vermont – put that into Google or YouTube. Prior to 9/11 you could cross and come back with just photo ID. What next, something akin to an "iron curtain", for all practical purposes, between the U.S. and the rest of the world?

    And finally, one big question that needs to be asked, though it won’t set well with some – why is it that the United States always has to stick its nose into everyone else’s affairs? The American people almost never want war, and typically some type of incident or provocation needs to occur for the American people to even support a war, and then much later we find out it was a "false flag" or contrived incident to begin with, such as the Gulf of Tonkin incident, or maybe an outright lie. Maybe in any type of new constitution, there should be a much higher bar to the United Stares entering a conflict that has not touched American soil. My own feeling is that if we’d keep our nose out of other countries’ business, we wouldn’t be a target for every terrorist in the world. Maybe they would go pick on someone else if we left them alone, and we hardly come off as the good guys when we are bombing relatively defenseless nations and killing innocent civilians.

    Anyway, sorry this is so long, but this is a dialog someone should be having. I may not be right about everything I’ve written here but I think it is a discussion worth having, and as far as I can tell, there are no serious efforts to give the people – and by that I mean real people, not corporations – a voice in how their country should be governed.

  2. Also, politicians – anyone that has held public office should NOT be permitted to be a lobbyist. Between the lobby system, our 2 party system, and big pharma, they are taking control of our country in not a good way.

  3. All charities need to be subject to taxes, not just religious institutions. The government could and currently does provide aid to many countries, that needs to be the new base for charitable giving. Currently even organizations such as the NFL NBA MLB are considered charities, these are far more egregious than religious institutions. Nevertheless all charities need to be dissolved. Non tax exempt charities already exist.

    We also need to end the marriage tax holiday, and all marriage benefits. Marriage itself is a religious institution and should be left alone as a religious right. But the privileges afforded to those who get married should cease, as partnerships between m/f become less common. People should pursue typical legal counsel for any needs.
    Also, the need for a "spousal" benefits ceases with both individuals working. As well this would end discrimination of some based upon their preferences.

  4. Be careful of appreciating the Canadian constitution too much. Speaking as one (a Canadian), there are many times when our constitution has had unintended consequences when interpreted by the Supreme Court of Canada (ie we have essentially NO abortion law, which would never fly in the US), and much like your constitution it’s really, really difficult to change (we tried once to straighten out some Quebec separatist issues and it did not happen). Also remember ours was written in 1982, so not that long ago.

    What could really help you guys out as KrzyKat alludes to is some limits on campaign spending and contributions (we have some REALLY strict rules about that with some SERIOUS fines; some people have recently received a couple).

    America needs to "stick its nose in everyone’s business" because otherwise you get Hitler. We can’t have that again. But probably it could be a bit more consensus driven than it has been over the last 15 or 20 years.

    We do have school shootings and nut jobs up here; not as often but remember we have 1/10th the population. But the body counts are lower because we don’t allow assault rifles. Google Montreal Massacre for one of the worst examples.

    Anyway, what I would hope (but expect won’t happen) is that America could become the leaders in intellectual cultural and constitutional construction you’re capable of being. By that I mean you’d evaluate lots of constitutional options, and come up with something of a consensus of what’s REALLY important and build on that to create something relevant and with the correct checks and balances.

  5. The more I read well-developed lines of thinking by intelligent guys like Ward, the more evident it becomes that many of us are beyond frustrated with our government. It’s not hard to imagine a full-scale people’s revolt in the years ahead. I often wonder what how history will refer to the period that began in the Reagan years where "agendas" began to define leadership. -JS

  8. What the majority doesn’t realize is… This attack on civil liberties, and the Intel apparatus didn’t magically appear after 9/11 … It was ratcheted up during the Clinton administration, with fears of domestic terrorism… ie Ruby Ridge, ok city and the the stand off of Waco… In 1996 In Telephony magazine, a one hundred year old publication devoted to telephone companies, the FBI was recruiting IVR engineers for an unnamed purpose… at the same time Nortel released a new version of software for agencies in a confidential release (not to be released or disclosed to anyone but nortel employee’s or telephone company personnel on a need to know basis) to remotely intercept thousands of conversations at any given moment…this was accomplished by giving the agencies remote access to do as they will, to choose their own targets… there by absolving the telco’s of liability and legal process..around this time skipjack and the clipper chip was raising it’s ugly head…. the FBI and Intel communities wanted a backdoor to everyone’s data… Phil Zimmerman got wind of this and wrote PGP pretty good privacy .. Military grade encryption for the masses..
    At which time they put him in a federal prison for violation of ITAR which states that export of military grade encryption is the same as selling rocket launchers to enemies of our great republic.. During this ratcheting up they also added gps to cellphones for mobile 911 the spec required location within 40 feet…of any cellphone anywhere… along with the CLEA act … Now if you add all of this together and are of the paranoid type you might think they were up to something… However most folks in the gov and media would label you as paranoid and a conspiracy theory freak and with a wink and a smirk use a common acronym… It’s D.A.K. that is not Ham it stands for Deny All Knowledge..

    Carnivore …. Total Information Awareness… Skipjack … CLEA

    Is you want to learn more check out eff.org or epic.org

    All of this information is public knowledge if you dig hard enough on the net…. however some of this information is no longer found… seems to have disappeared along with my telecom employment when I expressed my views and knowledge of the then title three wiretap laws from the supreme court to my supervisor and how it related to my job …. so I must just be a crank like Ron Paul

  9. Ward – Thanks for your insight on the military courts system. I’ve been following (supporting) the Bradley Manning case for a long time, hoping that he would have a chance. After reading this I fear the worst for him.

  10. Ward,

    Great article, if for no other reason than it appeared here, a place I never expected to see these sentiments.

    I could make appropriate comments on every paragraph you wrote, but will limit myself to these:

    I, too, served in the U.S. Army just after the Viet Nam War ended, although as an enlisted man. While I was in Reagan became President and I saw some of the changes first-hand, having served in Central America during the Ollie North days. I saw things that ensured I would never enjoy, or want, a military retirement.

    Your comments on what is needed for a revised Constitution are dead-on, particularly your statements, "Corporations are not people. Nor are they U.S. citizens." People need to realize that they are absolutely, definitely, 100% NOT U.S. Citizens and that they have only one purpose, enrich the Corporate Officers and Largest ShareHolders at any expense… ethics be damned. Money is all that matters and taking advantage of every law they buy is all that matters to them.

    Unfortunately the odds of any change at this point are slim to none. As an example, the Surveillance State pretty much shutdown OWS and got some excellent practice in shutting down the next wave of this type of mild insurrection. Between the massive surveillance and extreme militarization of local police forces. along with 10’s of thousands of "laws" on both Federal and State Books, anyone can be jailed at any time for anything, and the propaganda wing of the governments, i.e., all major corporate media outlets, will do their damnedest to make sure that the average American will buy the suppression hook, line, and sinker.

    An old WWII Vet I know that spent time in Germany before WWII told me one morning during a breakfast back in 2004 (9 years ago) that he was watching 1933/34 Germany on our streets today. I believed him then, one month before I took a job as a military contractor in Iraq due to lack of a decent paying job in the U.S.

    And I still believe him now. The transition is slower, but better thought out and better executed… Too bad.

    The only bright light is Edward Snowden’s revelations. Maybe the majority of American People will wake up in time and throw all the incumbents out for good and outlaw Corporations as Citizens/People.

    That and the unintended consequences of supporting what looks to me like a thoroughly corrupt and doomed financial system.

    These may bring about be a decent "reset" and, hopefully, in time.

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