Tuesday, July 29, 2008

Eaten Up

The food crisis is something I've just begun seeing. I knew that commodity prices had ballooned in recent months, and that the CPI Basic (which excludes food and energy 'cuz they're too volatile) was lying through it's teeth (had it any) about the rate of inflation. Still, I wasn't really aware of the extend of food riots, and the plight of the hundreds of millions of poor. Raj Palek is an Indian who is also a citizen of the UK with impressive degrees from the London School of Economics and Berkeley.

Have a Read:


Raj Patel’s book Stuffed and Starved predicted the current global food crisis - spiralling food prices, starvation and obesity. Ed Pilkington meets the soothsayer of agro-economics and talks about what will happen when all the food finally runs out

By Ed Pilkington

29/07/08 "" -- - -T
here is a passage towards the end of Raj Patel’s book, Stuffed and Starved, which elevates its author to the rank of soothsayer. He wrote it at the beginning of 2007, well before the roar of anger about rising food prices that resounded across the planet and that he so uncannily and accurately predicted.

The passage begins with Patel’s summary of earlier sections of the book in which he depicts the wasteland, as he calls it, of the modern food system. It is a system that destroys rural communities, poisons poor city dwellers, is inhumane to animals, demands unsustainable levels of use of fossil fuels and water, contributes to global warming, spreads disease and limits our sensuousness and compassion. As if that litany wasn’t enough, he then adds this: “Perhaps most ironic, although it is controlled by some of the most powerful people on the planet, the food system is inherently weak. It has systemic and structural vulnerabilities that lie close to the surface of our daily lives. All it takes to expose them is a gentle jolt.”

When he wrote that passage, Patel had in mind his native Britain and its occasional history of food crises. There was the oil crisis of 1973 that prompted panic-buying in the shops. Or 2000, when protesting truckers blockaded the oil refineries and the shelves again came close to emptying. Those events inspired Patel to contemplate a startling question: “What would have happened,” he wrote, “had all the food on the shelves run out?”

He left that question dangling in the book. But he got thinking about it again as he was on a tour of Australia last August promoting the book. As he travelled from Perth to Melbourne and then Sydney he kept being asked the same question: how did the drought that by then was already biting hard on Australian farmers as well as on consumers who were suffering rising prices, fit into his critique of modern food production? As he faced his audiences, it began to look to Patel, in a tentative, creeping way, that the gentle jolt he had written about was really happening.

“What was weird was that the stories I was hearing about drought and farmers in desperation were very similar to the stories that had been told to me in India a couple of years before. They were all about small independent farmers up to their eyeballs in debt. They had borrowed hugely to make a go of it, and then there’d been a shock - in Australia it was drought, in India it might be harvest failure, in Britain foot-and-mouth. It only takes one small shock.”

And then the agricultural slurry really hit the fan. The first intimations of something truly out of the ordinary came in Mexico in early 2007, before he had finished writing Stuffed and Starved. There were reports of unrest in some of the larger cities about rising food prices, partly related to the decision of the US government to divert huge quantities of corn to ethanol production, in an attempt to reduce dependence on foreign oil. Then early this year some eight months after Patel had finished writing about the risk of gentle jolts - the so-called “silent tsunami” began. Food prices appeared to be out of control, spiralling up by 68% in the case of rice in the first four months of this year alone. Wheat and corn almost doubled in a year.

Such hikes on the costs of the basics of life hit the urban poor in the cities of the developing world hardest, and the misery was soon made manifest in the form of unrest. Impromptu protests grew into angry marches and then erupted into food riots. In Haiti six people died and the prime minister was ousted from power. Two days of rioting ensued in Egypt and 24 people died in Cameroon. The pattern repeated itself right across the developing world, from Guyana and Bolivia to Ivory Coast, Surinam and Senegal, Yemen, Uzbekistan, Bangladesh and South Korea. Wild events in turn prompted wild official responses. Vietnam introduced a night curfew on harvesting machines to stop illegal raiding of the fields; any Filipino caught hoarding rice was threatened with life in jail, Malaysia cancelled all public building works and switched instead to stockpiling food. Even the rich western world was hit. Food prices in the UK have risen almost 7% year on year, shaking the government’s economic confidence. And if any doubts remained about the severity of this crisis, Wal-Mart, the supermarket goliath that stands at the pinnacle of the modern food system, announced it was imposing a four-bag limit for rice on its cash-and-carry customers to stop a run on supplies.

For millions of people around the world the soaring prices have spelt disaster - the World Bank has put the number of people who have been pushed into hunger at 100 million. But for one person, the impact has been strangely and paradoxically counter-factual. When Stuffed and Starved - Patel’s first book - came out last August, he and his publishers imagined it would at best enjoy a specialist readership among globalisation activists attuned to issues of corporate greed and exploitation. But the food crisis has turned it from being a niche read into the literary equivalent of a crystal ball. As a result, the demand has in Patel’s words “gone bonkers”. Reprints have been ordered in Britain, the US and Spain, deals done for editions in Italy, China and South Korea and half a dozen translations are under discussion. “If I had been this popular at school I’d be a different man today,” he quips. His analysis of the crisis, as the author of the book that predicted it all, is now hotly sought after. Or as Patel, who has the savvy Londoner’s gift for self-deprecation, puts it: “Spank me, and call me Cassandra!”

We meet for lunch in a restaurant within a Big Mac’s throw from Capitol Hill in Washington. It’s trivial I know, but it’s impossible not to be curious - a little intimidated even - about what Patel will order from the menu. He points out in his book that the livestock industry is responsible for 18% of greenhouse gas emissions, more than cars. So will he go for the hanger steak?

He asks for a pizza with goat’s cheese and mushrooms, but when I ask whether his choice was politically or ethically motivated, he laughs. “I haven’t had a steak in my life. Growing up in a Hindu household, I clamoured for hamburgers like any other kid and my parents said: ‘Oh, if you must.’ But they drew the line at steak.”

Patel sees in himself, and his eating habits, a tale in microcosm of the globalisation he writes about. His family on his mother’s side were civil servants in Kenya, and tin miners in Fiji on his father’s side. They both were drawn to the mother country, arriving in London in the 60s, where they met. It later became a cliche, but they were among the first to open up “Mr Patel’s corner shop”, working 18-hour days in an era before 24-hour supermarkets. The earliest memories of their son, who was born in 1972, are of playing among the fags, mags and sweets in the shop in Golders Green. It would be too neat, I hazard, to suggest that his parents were forced to close down the shop because of competition with the supermarkets? “My dad did very well for himself,” he replies, speaking with a high-velocity stammer. “But they were certainly driven out. You can’t compete any more, the corner shop is a dying industry.”

Despite those difficulties, the Patels did proud by their son, sending him to a north London grammar school, then to Oxford where he studied PPE, and finally to Berkeley in California. Along the way, he became interested in, and engaged with, the anti-globalisation movement. He was among the thousands who protested in Seattle against the World Trade Organisation (WTO) in 1999, and it was there that he came face to face with what he calls the “march of the farmers’ movement” in the form of arguably the world’s largest network of independent organisations, La Via Campesina, which represents around 150 million farm workers and smallholders across the globe. “I was struck by their sophisticated and detailed critique of the WTO. Seven years before Seattle they had already translated the draft text of the Dunkel report [on trade] into Kannada and were distributing it in the fields.”

He began delving more deeply into the subject of trade, food policy and agricultural resistance as an analyst at Food First, a radical thinktank in Oakland, where an idea for a book emerged. It began life as a meditation on choice, or the lack of it - Coke v Pepsi, McDonald’s v Wendy’s. Its working title was Choice Cuts. Over the next three years he travelled to research the book from South Africa, Europe and South Korea to Brazil, Mexico and the US. In the process the thesis grew bigger in scope and more refined. Its focus was no longer just a lack of consumer choice, it embraced an entire world food system that can consign 800 million - more than one in 10 people on earth - to hunger while simultaneously inflicting obesity on an even greater number, 1 billion people. Hence the book’s new, and in his opinion better, title.

His analysis shows how communities around the planet have been disempowered by a system that appears to offer an abundance of cheap food, but in reality dictates unhealthy and limited choices to an overworked and underpaid workforce that cannot afford any better. “The figure that often stuns people outside the US when I tour with the book is that 20% of American fast-food meals are eaten in cars. People are incredulous and ask: is that because Americans so love their cars? But living here you see how hard people work, for a pittance, with no healthcare, no decent education, not even a hint of a pension - so it’s not surprising that the one hot meal you eat a day you eat off your lap. That’s where the food system becomes a lifestyle.”

Much of the broad argument in Stuffed and Starved will be familiar to those who have followed the debate on globalisation - how the liberalisation of trade has created a vast global market for heavily subsidised American and European agricultural products at the expense of local growers in the developing world; how relentless pressure to drive down food prices over 30 years has seen rich ecosystems replaced by monocultures that rely on oil-powered machines, chemical fertilisers and pesticides to drive up yields; and how international corporations and supermarkets that control the flow of technologies and of food itself have been the beneficiaries. It is a portrait of the agro-economics of the madhouse. “While we think our food is made for us, we are in fact being made for our food,” he says.

Take India, which he describes as a storm of contradictions. “India has the most people in the Forbes top 10 billionaires list, but in the past decade the average calorie intake of the poorest has fallen. There are levels of hunger we haven’t seen since the British left, combined with the world’s highest levels of type 2 diabetes from the pressure of eating too much of the wrong kinds of food.”

Or take the UK, where food producers are now less than one per cent of the workforce. The government may be committed to reducing global warming emissions, but meanwhile a quarter of all trucks on UK roads are carrying food and the average British family is driving 136 miles a year to buy it.

Or America. This is the country whose farmers, food giants and supermarkets benefit most from the global system. Such is the might of US food corporations that the double arches of McDonald’s are more widely recognised as a symbol than the cross. Wal-Mart is the largest private employer not only in the US, but also in Mexico where Walmex takes in three out of every 10 pesos Mexicans spend on food. Yet amid such largesse 35 million Americans don’t know where their next meal is coming from. “You are hearing these amazing stories of working American families adopting coping strategies that I learned about in development sociology - skipping meals, growing their own fruit and vegetables, giving up on meat. That’s happening right here right now.”

Which brings us back to the current food crisis. What surprised him, he says, is not that the food system felt a gentle jolt - after all, he predicted it - but that it has been pummelled all at once by a perfect storm of troubles. “We could have seen it coming because of the biofuels policy, which has always struck me as absurd, or the rising price of oil, or increased consumption of meat, or weird things happening with climate. But all these things happened at once, and that sent food prices through the roof.”

And this time, there were none of the safeguards of grain stores, strategic food reserves, or import barriers that used to protect vulnerable economies from the vagaries of world markets. They had all been removed in the liberalisation craze of the past few decades.

His prognosis is that in the short term at least the crisis will carry on biting. Major institutions such as the World Bank persist, he says, in responding to events with the same failed policies of liberalisation of markets. “There’s no reason why food prices should come down significantly. And if they don’t, and there’s no real impetus for governments to redistribute spending power, people will continue to take to the streets.”

In the medium term, he’s confident that change is in the air. He detects a growing seriousness and willingness to embrace new ideas in some unexpected quarters. The reason we are chatting in a DC restaurant is that Patel has just that morning been giving testimony before a Congressional committee investigating the World Bank’s approach to food and development. With representatives from the World Bank, UN, Monsanto and other monoliths listening in, he told the committee that industrial agriculture could no longer be relied upon to feed the world and that we need a shift towards less fossil-fuel dependent farming and a return to rich ecosystems based on natural crop rotations and organic fertilisers. “Those are the kinds of things that are anathema to the World Bank and development analysts at the moment, and Congress normally doesn’t want to hear them. That they called on someone like me is very weird, but very heartening.”

In the longer term, though, even the current food crisis may seem mild. The world population is set to rise from about six billion today to nine billion by 2050. Global warming is likely to disrupt growing patterns and extend drought across Africa and the American south-west. Water resources for irrigation will be depleted. If we are already in a perfect storm, then we lack the terminology to describe what lies ahead.

I put it to him that any attempt to change world food production is like a game of poker with extraordinarily high stakes: it not only has to meet the massive yield of industrial farming - and say what you like about the modern food system, the one thing it has done is churn out mountains of the stuff relatively cheaply - it also has to raise it to support three billion extra hungry mouths. Can his alternative model achieve that?

“We’ve got an energy problem, a fuel problem, a water problem and global warming all coming at us,” he replies. “Monoculture is heavily C02-emitting, water and fossil-fuel dependent. Clearly we can’t carry on as we are. We can and we must meet this challenge with something new. So the question is what?”

That’s not entirely an answer to my question. There is a slightly starry-eyed quality to Stuffed and Starved that is also striking about its author in the flesh. When he talks of alternative farming techniques that offer a way forward, the examples he chooses come from Cuba, Venezuela and a project in Oakland that follows in the footsteps of the Black Panthers. That’s hardly going to play well with sceptical American policy-makers.

The other element that is lacking from his prognosis is any role for science and technological innovation in the search for solutions. Where technology does appear it is in the role of villain - GM crops are a ruse by Monsanto and others to secure corporate profits at the expense of the rural poor.

But isn’t there a place for responsibly directed science in steering us through the coming maelstrom? Couldn’t GM, for instance, prove to be crucial in developing drought-resistant crops as global warming tightens its grip?

“I’m big on science, married to a neuroscientist, I love it,” he insists, protesting perhaps a little too much. “I like the way Cuban science approaches the problem. They say you can have GM crops if you can prove there’s no better way of doing things. So they don’t have GM crops, because there always is a better way.”

Not exactly a ringing endorsement for the value of science. But then that is not where Patel’s heart lies. For that you have to look to politics, and political resistance. The soothsayer’s next book, he says, will be a look at the individuals and communities who are refusing to bow down to the current global system. He will soon be starting another journey to meet them. On his list: the slum-dwellers of Durban and the homeless Americans who run the University of the Poor. He sees in them a lesson for us all. “We are victims,” he says as he polishes off his pizza and prepares to fly back to San Francisco where he now lives. “If we are choosing between Coke or Pepsi, Burger King or McDonald’s, that’s not choice. We should stop feeling guilty about that. We should start feeling angry”.

Ed Pilkington is the Guardian’s New York correspondent. He is a former national and foreign editor of the paper, and author of Beyond the Mother Country.

© Guardian News and Media Limited 2008

Thursday, July 24, 2008

Some Impressive Lightning.


Ok, I promise I won't do alot of this, but on our Puerto Vallarta vacation, it rained every evening. The resulting lightning was often really spectacular. So much so that I made this video of a small part of one evening's display.

Have a Look:

Wednesday, July 23, 2008

Our Puerto Vallata July 2008 Vacation

This isn't customary for this blog, but occasionally we'll do something a bit off key. Here are the as yet largely uncaptioned photos of the recent trip to Puerto Vallarta. A note, for now, they're also playing on the slide show at the upper right of the author's picture.

Have a look:

The Vallarta Vacation

George Galloway with a Caller on Iran


George Galloway has come to my attention late in the process, and that's a pity. We need more politicians like him, many more. He's a Scot, and I think currently represents Central London. He's been ripping war fans new a..holes for some years. I think it's time you heard him do this for a caller on what is clearly his broadcast talk show. I'll be giving you some more of him from time to time. Have a listen.


Tuesday, July 15, 2008

Some Interesting Footage from Iraq


I didn't know that American troops in Iraq had begun to blog, and blog in a way that tries to convey what's actually happening with their tours and with Iraqis. Here's an example, Casey Porters Blog. Have a look:

Watch This First

Iraq Soldier's blog

Saturday, July 12, 2008

Interesting

President George W Bush backs Israeli plan for strike on Iran

As Tehran tests new missiles, America believes only a show of force can deter President Ahmadinejad

US President George W Bush

President George W Bush: US officials acknowledge that no American president can afford to remain idle if Israel is threatened

President George W Bush has told the Israeli government that he may be prepared to approve a future military strike on Iranian nuclear facilities if negotiations with Tehran break down, according to a senior Pentagon official.

Despite the opposition of his own generals and widespread scepticism that America is ready to risk the military, political and economic consequences of an airborne strike on Iran, the president has given an “amber light” to an Israeli plan to attack Iran’s main nuclear sites with long-range bombing sorties, the official told The Sunday Times.

“Amber means get on with your preparations, stand by for immediate attack and tell us when you’re ready,” the official said. But the Israelis have also been told that they can expect no help from American forces and will not be able to use US military bases in Iraq for logistical support.

Nor is it certain that Bush’s amber light would ever turn to green without irrefutable evidence of lethal Iranian hostility. Tehran’s test launches of medium-range ballistic missiles last week were seen in Washington as provocative and poorly judged, but both the Pentagon and the CIA concluded that they did not represent an immediate threat of attack against Israeli or US targets.

“It’s really all down to the Israelis,” the Pentagon official added. “This administration will not attack Iran. This has already been decided. But the president is really preoccupied with the nuclear threat against Israel and I know he doesn’t believe that anything but force will deter Iran.”

The official added that Israel had not so far presented Bush with a convincing military proposal. “If there is no solid plan, the amber will never turn to green,” he said.

There was also resistance inside the Pentagon from officers concerned about Iranian retaliation. “The uniform people are opposed to the attack plans, mainly because they think it will endanger our soldiers in Iraq and Afghanistan,” the source said.

Complicating the calculations in both Washington and Tel Aviv is the prospect of an incoming Democratic president who has already made it clear that he prefers negotiation to the use of force.

Senator Barack Obama’s previous opposition to the war in Iraq, and his apparent doubts about the urgency of the Iranian threat, have intensified pressure on the Israeli hawks to act before November’s US presidential election. “If I were an Israeli I wouldn’t wait,” the Pentagon official added.

The latest round of regional tension was sparked by the Iranian Revolutionary Guard, which fired nine long and medium-range missiles in war game manoeuvres in the Gulf last Wednesday.

Iran’s state-run media reported that one of them was a modified Shahab-3 ballistic missile, which has a claimed range of 1,250 miles and could theoretically deliver a one-ton nuclear warhead over Israeli cities. Tel Aviv is about 650 miles from western Iran. General Hossein Salami, a senior Revolutionary Guard commander, boasted that “our hands are always on the trigger and our missiles are ready for launch”.

Condoleezza Rice, the US secretary of state, said she saw the launches as “evidence that the missile threat is not an imaginary one”, although the impact of the Iranian stunt was diminished on Thursday when it became clear that a photograph purporting to show the missiles being launched had been faked.

The one thing that all sides agree on is that any strike by either Iran or Israel would trigger a catastrophic round of retaliation that would rock global oil markets, send the price of petrol soaring and wreck the progress of the US military effort in Iraq.

Abdalla Salem El-Badri, secretary-general of Opec, the oil producers’ consortium, said last week that a military conflict involving Iran would see an “unlimited” rise in prices because any loss of Iranian production — or constriction of shipments through the Strait of Hormuz — could not be replaced. Iran is Opec’s second-largest producer after Saudi Arabia.

Equally worrying for Bush would be the impact on the US mission in Iraq, which after years of turmoil has seen gains from the military “surge” of the past few months, and on American operations in the wider region. A senior Iranian official said yesterday that Iran would destroy Israel and 32 American military bases in the Middle East in response to any attack.

Yet US officials acknowledge that no American president can afford to remain idle if Israel is threatened. How genuine the Iranian threat is was the subject of intense debate last week, with some analysts arguing that Iran might have a useable nuclear weapon by next spring and others convinced that President Mahmoud Ahmadinejad is engaged in a dangerous game of bluffing — mainly to impress a domestic Iranian audience that is struggling with economic setbacks and beginning to question his leadership.

Among the sceptics is Kenneth Katzman, a former CIA analyst and author of a book on the Revolutionary Guard. “I don’t subscribe to the view that Iran is in a position to inflict devastating damage on anyone,” said Katzman, who is best known for warning shortly before 9/11 that terrorists were planning to attack America.

“The Revolutionary Guards have always underperformed militarily,” he said. “Their equipment is quite inaccurate if not outright inoperable. Those missile launches were more like putting up a ‘beware of the dog’ sign. They want everyone to think that if you mess with them, you will get bitten.”

A former adviser to Rice noted that Ahmadinejad’s confrontational attitude had earned him powerful enemies among Iran’s religious leadership. Professor Shai Feldman, director of Middle East studies at Brandeis University, said the Iranian government was getting “clobbered” because of global economic strains. “His [Ahmadinejad's] failed policies have made Iran more vulnerable to sanctions and people close to the mullahs have decided he’s a liability,” he said.

In Israel, Ehud Olmert, the prime minister, has his own domestic problems with a corruption scandal that threatens to unseat him and the media have been rife with speculation that he might order an attack on Iran to distract attention from his difficulties. According to one of his closest friends, Olmert recently warned him that “in three months’ time it will be a different Middle East”.

Yet even the most hawkish officials acknowledge that Israel would face what would arguably be the most challenging military mission of its 60-year existence.

“No one here is talking about more than delaying the [nuclear] programme,” said the Pentagon source. He added that Israel would need to set back the Iranians by at least five years for an attack to be considered a success.

Even that may be beyond Israel’s competence if it has to act alone. Obvious targets would include Iran’s Isfahan plant, where uranium ore is converted into gas, the Natanz complex where this gas is used to enrich uranium in centrifuges and the plutonium-producing Arak heavy water plant. But Iran is known to have scattered other elements of its nuclear programme in underground facilities around the country. Neither US nor Israeli intelligence is certain that it knows where everything is.

“Maybe the Israelis could start off the attack and have us finish it off,” Katzman added. “And maybe that has been their intention all along. But in terms of the long-term military campaign that would be needed to permanently suppress Iran’s nuclear programme, only the US is perceived as having that capability right now.”

Additional reporting: Tony Allen-Mills in New York

The Real Terrorists


John Pilger is an award winning English documentary and investigative journalist. He's done lot's of great work, Google him. I always like to say, "John Pilger must be an insufferable prick, but he's 'our' insufferable prick". This is a very early piece done just after the start of the Iraq war. It's well done, and a fine antidote to those who wish to apologize for US actions in Iraq and elsewhere. Have a look.....

Breaking the Silence Video

Some Notes About 9/11


Nafeez Ahmed has written two books, "The War on Freedom" and "The War on Truth". I've read the latter. It's is a startling book, copiously footnoted and documented and a gripping read. I stumbled across this talk by Nafeez on a 9/11 "conspiracy" site.

Check it out

This is a bit old, July 2005, but the subject can't become dated. Have a look. Again, this is just part of what I think every American ought to do. Don't simply say, 'that's crazy" and ignore the 9/11 issue. Look into it. Make up your own mind. Have a look.....

Naveez Mossadeq Ahmed Video

Friday, July 11, 2008

It's Really About the Oil


08/07/08 "Khaleej Times" --- - The deal just taking shape between Iraq's Oil Ministry and four Western oil companies raises critical questions about the nature of the US invasion and occupation of Iraq — questions that should certainly be addressed by presidential candidates and seriously discussed in the United States, and of course in occupied Iraq, where it appears that the population has little if any role in determining the future of their country.

Negotiations are under way for Exxon Mobil, Shell, Total and BP — the original partners decades ago in the Iraq Petroleum Company, now joined by Chevron and other smaller oil companies — to renew the oil concession they lost to nationalisation during the years when the oil producers took over their own resources. The no-bid contracts, apparently written by the oil corporations with the help of U.S. officials, prevailed over offers from more than 40 other companies, including companies in China, India and Russia.

"There was suspicion among many in the Arab world and among parts of the American public that the United States had gone to war in Iraq precisely to secure the oil wealth these contracts seek to extract," Andrew E. Kramer wrote in The New York Times.

Kramer's reference to "suspicion" is an understatement. Furthermore, it is highly likely that the military occupation has taken the initiative in restoring the hated Iraq Petroleum Company, which, as Seamus Milne writes in the London Guardian, was imposed under British rule to "dine off Iraq's wealth in a famously exploitative deal."

Later reports speak of delays in the bidding. Much is happening in secrecy, and it would be no surprise if new scandals emerge.

The demand could hardly be more intense. Iraq contains perhaps the second largest oil reserves in the world, which are, furthermore, very cheap to extract: no permafrost or tar sands or deep sea drilling. For US planners, it is imperative that Iraq remain under U.S. control, to the extent possible, as an obedient client state that will also house major U.S. military bases, right at the heart of the world's major energy reserves.

That these were the primary goals of the invasion was always clear enough through the haze of successive pretexts: weapons of mass destruction, Saddam's links with Al-Qaeda, democracy promotion and the war against terrorism, which, as predicted, sharply increased as a result of the invasion.

Last November, the guiding concerns were made explicit when President Bush and Iraq's Prime Minister Nouri Al Maliki signed a "Declaration of Principles," ignoring the U.S. Congress and Iraqi parliament, and the populations of the two countries.

The Declaration left open the possibility of an indefinite long-term U.S. military presence in Iraq that would presumably include the huge air bases now being built around the country, and the "embassy" in Baghdad, a city within a city, unlike any embassy in the world. These are not being constructed to be abandoned.

The Declaration also had a remarkably brazen statement about exploiting the resources of Iraq. It said that the economy of Iraq, which means its oil resources, must be open to foreign investment, "especially American investments." That comes close to a pronouncement that we invaded you so that we can control your country and have privileged access to your resources.

The seriousness of this commitment was underscored in January, when President Bush issued a "signing statement" declaring that he would reject any congressional legislation that restricted funding "to establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq" or "to exercise United States control of the oil resources of Iraq."

Extensive resort to "signing statements" to expand executive power is yet another Bush innovation, condemned by the American Bar Association as "contrary to the rule of law and our constitutional separation of powers." To no avail.

Not surprisingly, the Declaration aroused immediate objections in Iraq, among others from Iraqi unions, which survive even under the harsh anti-labour laws that Saddam instituted and the occupation preserves.

In Washington propaganda, the spoiler to US domination in Iraq is Iran. U.S. problems in Iraq are blamed on Iran. US Secretary of State Condoleezza Rice sees a simple solution: "foreign forces" and "foreign arms" should be withdrawn from Iraq — Iran's, not ours.

The confrontation over Iran's nuclear programme heightens the tensions. The Bush administration's "regime change" policy toward Iran comes with ominous threats of force (there Bush is joined by both US presidential candidates). The policy also is reported to include terrorism within Iran — again legitimate, for the world rulers. A majority of the American people favours diplomacy and oppose the use of force. But public opinion is largely irrelevant to policy formation, not just in this case.

An irony is that Iraq is turning into a US-Iranian condominium. The Maliki government is the sector of Iraqi society most supported by Iran. The so-called Iraqi army — just another militia — is largely based on the Badr brigade, which was trained in Iran, and fought on the Iranian side during the Iran-Iraq war.

Nir Rosen, one of the most astute and knowledgeable correspondents in the region, observes that the main target of the US-Maliki military operations, Moktada Al Sadr, is disliked by Iran as well: He's independent and has popular support, therefore dangerous.

Iran "clearly supported Prime Minister Maliki and the Iraqi government against what they described as 'illegal armed groups' (of Moktada's Mahdi army) in the recent conflict in Basra," Rosen writes, "which is not surprising given that their main proxy in Iraq, the Supreme Iraqi Islamic Council dominates the Iraqi state and is Maliki's main backer."

"There is no proxy war in Iraq," Rosen concludes, "because the U.S. and Iran share the same proxy."

Teheran is presumably pleased to see the United States institute and sustain a government in Iraq that's receptive to their influence. For the Iraqi people, however, that government continues to be a disaster, very likely with worse to come.

In Foreign Affairs, Steven Simon points out that current US counterinsurgency strategy is "stoking the three forces that have traditionally threatened the stability of Middle Eastern states: tribalism, warlordism and sectarianism." The outcome might be "a strong, centralised state ruled by a military junta that would resemble" Saddam's regime.

If Washington achieves its goals, then its actions are justified. Reactions are quite different when Vladimir Putin succeeds in pacifying Chechnya, to an extent well beyond what Gen. David Petraeus has achieved in Iraq. But that is THEM, and this is US. Criteria are therefore entirely different.

In the US, the Democrats are silenced now because of the supposed success of the US military surge in Iraq. Their silence reflects the fact that there are no principled criticisms of the war. In this way of regarding the world, if you're achieving your goals, the war and occupation are justified. The sweetheart oil deals come with the territory.

In fact, the whole invasion is a war crime — indeed the supreme international crime, differing from other war crimes in that it encompasses all the evil that follows, in the terms of the Nuremberg judgment. This is among the topics that can't be discussed, in the presidential campaign or elsewhere. Why are we in Iraq? What do we owe Iraqis for destroying their country? The majority of the American people favour US withdrawal from Iraq. Do their voices matter?

Noam Chomsky's writings on linguistics and politics have just been collected in "The Essential Noam Chomsky," edited by Anthony Arnove, from the New Press. Chomsky is emeritus professor of linguistics and philosophy at the Massachusetts Institute of Technology in Cambridge, Mass.

Thursday, July 10, 2008

The New Oil Deal


08/07/08 "Khaleej Times" --- - The deal just taking shape between Iraq's Oil Ministry and four Western oil companies raises critical questions about the nature of the US invasion and occupation of Iraq — questions that should certainly be addressed by presidential candidates and seriously discussed in the United States, and of course in occupied Iraq, where it appears that the population has little if any role in determining the future of their country.

Negotiations are under way for Exxon Mobil, Shell, Total and BP — the original partners decades ago in the Iraq Petroleum Company, now joined by Chevron and other smaller oil companies — to renew the oil concession they lost to nationalisation during the years when the oil producers took over their own resources. The no-bid contracts, apparently written by the oil corporations with the help of U.S. officials, prevailed over offers from more than 40 other companies, including companies in China, India and Russia.

"There was suspicion among many in the Arab world and among parts of the American public that the United States had gone to war in Iraq precisely to secure the oil wealth these contracts seek to extract," Andrew E. Kramer wrote in The New York Times.

Kramer's reference to "suspicion" is an understatement. Furthermore, it is highly likely that the military occupation has taken the initiative in restoring the hated Iraq Petroleum Company, which, as Seamus Milne writes in the London Guardian, was imposed under British rule to "dine off Iraq's wealth in a famously exploitative deal."

Later reports speak of delays in the bidding. Much is happening in secrecy, and it would be no surprise if new scandals emerge.

The demand could hardly be more intense. Iraq contains perhaps the second largest oil reserves in the world, which are, furthermore, very cheap to extract: no permafrost or tar sands or deep sea drilling. For US planners, it is imperative that Iraq remain under U.S. control, to the extent possible, as an obedient client state that will also house major U.S. military bases, right at the heart of the world's major energy reserves.

That these were the primary goals of the invasion was always clear enough through the haze of successive pretexts: weapons of mass destruction, Saddam's links with Al-Qaeda, democracy promotion and the war against terrorism, which, as predicted, sharply increased as a result of the invasion.

Last November, the guiding concerns were made explicit when President Bush and Iraq's Prime Minister Nouri Al Maliki signed a "Declaration of Principles," ignoring the U.S. Congress and Iraqi parliament, and the populations of the two countries.

The Declaration left open the possibility of an indefinite long-term U.S. military presence in Iraq that would presumably include the huge air bases now being built around the country, and the "embassy" in Baghdad, a city within a city, unlike any embassy in the world. These are not being constructed to be abandoned.

The Declaration also had a remarkably brazen statement about exploiting the resources of Iraq. It said that the economy of Iraq, which means its oil resources, must be open to foreign investment, "especially American investments." That comes close to a pronouncement that we invaded you so that we can control your country and have privileged access to your resources.

The seriousness of this commitment was underscored in January, when President Bush issued a "signing statement" declaring that he would reject any congressional legislation that restricted funding "to establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq" or "to exercise United States control of the oil resources of Iraq."

Extensive resort to "signing statements" to expand executive power is yet another Bush innovation, condemned by the American Bar Association as "contrary to the rule of law and our constitutional separation of powers." To no avail.

Not surprisingly, the Declaration aroused immediate objections in Iraq, among others from Iraqi unions, which survive even under the harsh anti-labour laws that Saddam instituted and the occupation preserves.

In Washington propaganda, the spoiler to US domination in Iraq is Iran. U.S. problems in Iraq are blamed on Iran. US Secretary of State Condoleezza Rice sees a simple solution: "foreign forces" and "foreign arms" should be withdrawn from Iraq — Iran's, not ours.

The confrontation over Iran's nuclear programme heightens the tensions. The Bush administration's "regime change" policy toward Iran comes with ominous threats of force (there Bush is joined by both US presidential candidates). The policy also is reported to include terrorism within Iran — again legitimate, for the world rulers. A majority of the American people favours diplomacy and oppose the use of force. But public opinion is largely irrelevant to policy formation, not just in this case.

An irony is that Iraq is turning into a US-Iranian condominium. The Maliki government is the sector of Iraqi society most supported by Iran. The so-called Iraqi army — just another militia — is largely based on the Badr brigade, which was trained in Iran, and fought on the Iranian side during the Iran-Iraq war.

Nir Rosen, one of the most astute and knowledgeable correspondents in the region, observes that the main target of the US-Maliki military operations, Moktada Al Sadr, is disliked by Iran as well: He's independent and has popular support, therefore dangerous.

Iran "clearly supported Prime Minister Maliki and the Iraqi government against what they described as 'illegal armed groups' (of Moktada's Mahdi army) in the recent conflict in Basra," Rosen writes, "which is not surprising given that their main proxy in Iraq, the Supreme Iraqi Islamic Council dominates the Iraqi state and is Maliki's main backer."

"There is no proxy war in Iraq," Rosen concludes, "because the U.S. and Iran share the same proxy."

Teheran is presumably pleased to see the United States institute and sustain a government in Iraq that's receptive to their influence. For the Iraqi people, however, that government continues to be a disaster, very likely with worse to come.

In Foreign Affairs, Steven Simon points out that current US counterinsurgency strategy is "stoking the three forces that have traditionally threatened the stability of Middle Eastern states: tribalism, warlordism and sectarianism." The outcome might be "a strong, centralised state ruled by a military junta that would resemble" Saddam's regime.

If Washington achieves its goals, then its actions are justified. Reactions are quite different when Vladimir Putin succeeds in pacifying Chechnya, to an extent well beyond what Gen. David Petraeus has achieved in Iraq. But that is THEM, and this is US. Criteria are therefore entirely different.

In the US, the Democrats are silenced now because of the supposed success of the US military surge in Iraq. Their silence reflects the fact that there are no principled criticisms of the war. In this way of regarding the world, if you're achieving your goals, the war and occupation are justified. The sweetheart oil deals come with the territory.

In fact, the whole invasion is a war crime — indeed the supreme international crime, differing from other war crimes in that it encompasses all the evil that follows, in the terms of the Nuremberg judgment. This is among the topics that can't be discussed, in the presidential campaign or elsewhere. Why are we in Iraq? What do we owe Iraqis for destroying their country? The majority of the American people favour US withdrawal from Iraq. Do their voices matter?

Noam Chomsky's writings on linguistics and politics have just been collected in "The Essential Noam Chomsky," edited by Anthony Arnove, from the New Press. Chomsky is emeritus professor of linguistics and philosophy at the Massachusetts Institute of Technology in Cambridge, Mass.

Wednesday, July 9, 2008

Suing George W. Bush: A bizarre and troubling tale


This Article was Originally published in Salon.com


On July 3, Chief Judge Vaughn Walker of the U.S. District Court in California made a ruling particularly worthy of the nation's attention. In Al-Haramain Islamic Foundation Inc. v. Bush, a key case in the epic battle over warrantless spying inside the United States, Judge Walker ruled, effectively, that President George W. Bush is a felon.

Judge Walker held that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA -- which means Bush's warrantless electronic surveillance program was illegal. Whether Bush will ultimately be held accountable for violating federal law with the program remains unclear. Bush administration lawyers have fought vigorously -- at times using brazen, logic-defying tactics -- to prevent that from happening. The court battle will continue to play out as Congress continues to battle over recasting FISA and possibly granting immunity to telecom companies involved in the illegal surveillance.

The story of how Al-Haramain's lawyers negotiated the journey thus far to Judge Walker's ruling -- a team of seven lawyers that includes me -- sheds light on how much is at stake for the Bush administration and the country. It is a surreal saga, involving a top-secret document accidentally released by the government, a showdown between Bush lawyers and a federal judge, the violent destruction of a laptop computer by government agents, and possibly even the top-secret shredding of a banana peel.

Call me Alice -- because this is a tale directly from Government Secrecy Wonderland, the bizarre and unnerving adventures of suing President Bush for apparently violating a federal law. I'll swear under penalty of perjury that what follows is true and correct. Otherwise, you might not even believe it.

The secret document

FISA requires a warrant for electronic surveillance inside the U.S. for intelligence gathering. President George W. Bush secretly violated FISA for nearly six years, starting shortly after the terrorist attacks of 9/11. FISA makes those violations felonious and provides for civil liability to the victims. I am one of seven lawyers in Oregon and California representing three of those victims in Al-Haramain Islamic Foundation Inc. v. Bush, a civil lawsuit against the president.

The plaintiffs are Al-Haramain -- a defunct Islamic charity based in Oregon -- and two lawyers who represented Al-Haramain in 2004 during proceedings by the Treasury Department's Office of Foreign Assets Control (OFAC) to declare Al-Haramain a terrorist organization, the primary consequence of which was to freeze its assets. (This effectively put the organization out of business.) Of the four dozen lawsuits challenging various aspects of Bush's warrantless electronic surveillance program, the Al-Haramain case is unique because we have proof that our clients were actually wiretapped and thus can satisfy the legal requirement of "standing," or grounds to sue -- meaning we can show they were victims of the unlawful conduct for which they are suing. Nobody else has been able to produce such proof.

Our proof is a top-secret classified document, which the government accidentally gave to Al-Haramain's lawyers in August of 2004. We call it "the Document." It appeared in a stack of unclassified materials that the lawyers had requested from OFAC. Six weeks later, after the government realized its blunder, FBI agents personally visited each of the lawyers and made them return their copies of the Document. But the agents made no effort to retrieve copies that the lawyers had given to two members of Al-Haramain's board of directors, who lived outside the United States.

I can't publicly reveal what's in the Document because, well, it's a secret. I would be committing a crime -- a violation of the Espionage Act of 1917 -- if I were to do so. But we assert the Document as proof of allegations we have made that in March and April of 2004 the National Security Agency conducted warrantless electronic surveillance of attorney-client communications between a representative of Al-Haramain and two of its attorneys, and that in May of 2004 the NSA gave logs of those surveilled communications to OFAC.

The FBI vs. the judge

Along with the complaint (the formal pleading that starts a lawsuit), which we filed in February of 2006 in the Oregon federal District Court, we submitted the Document. The government's first response was to try to seize the Document from the court. On March 17, 2006, as we were holding our first all-hands meeting of the Al-Haramain legal team in Portland, we received a telephone call from a Department of Justice attorney, advising us that FBI agents were en route to the federal District Court building to confiscate the Document. We immediately lodged a protest with the assigned judge, Garr King, who scheduled an emergency telephone conference with him and all counsel. The FBI agents retreated.

During the emergency hearing, DOJ attorney Anthony Coppolino demanded that the Document be turned over to the FBI for storage in a top-secret repository called a Sensitive Compartmented Information Facility, or SCIF. To my astonishment, Judge King responded: "What if I say I will not deliver it to the FBI, Mr. Coppolino?" A clash of constitutional powers was brewing. Agents of the executive branch were threatening to invade the files of the judicial branch. The judge was resisting, almost daring them to.

It was the executive branch that blinked. After a pause, Coppolino said: "Well, your Honor, we obviously don't want to have any kind of a confrontation with you; we want to work this out." We all agreed that the Document would be held in a nearby SCIF to which Judge King would have free access.

This was the beginning of a bizarre journey that has not yet ended. Since then, for nearly two and a half years, we have been attempting to use the Document to confirm our clients' standing to sue under FISA and thus test the legality of President Bush's warrantless surveillance program. More broadly, we want the courts to discredit the so-called unitary executive theory of presidential power, which holds that the president has exclusive authority over matters of national security and may disregard laws like FISA that impose checks on presidential power. First, however, we have had to get past a major obstacle used by the Bush administration to stand in our way.

The state secrets privilege

The state secrets privilege, which is rooted in a 1953 Supreme Court case, allows the government to refuse in civil lawsuits to disclose classified evidence that is a state or military secret. In extreme cases, where the very subject matter of the lawsuit is secret, the lawsuit may be thrown out entirely.

Soon after the Document's place of reposit was resolved, the government asked Judge King to throw out our lawsuit pursuant to the state secrets privilege, a tactic used aggressively by the Bush government. We opposed that request, arguing that the Document isn't a secret any longer, since we and our clients have seen it. The government attorneys insisted that the Document is still a secret no matter who knows about it, and further insisted that the warrantless surveillance program itself remains secret -- never mind that the New York Times revealed the program in December of 2005 and soon thereafter the president publicly admitted its existence.

By this time, in a burst of healthy paranoia, we had destroyed all our copies of the Document, and the government wouldn't give us access to the copy held in the SCIF. What would Judge King do? It's no small thing for a judge to take on the president in matters of national security. Judge King came up with a compromise: In a ruling issued on Sept. 7, 2006, he denied the government's request, but also denied us access to the copy in the SCIF. Instead, he said, we could proceed to demonstrate standing by filing secret affidavits describing the Document from memory.

Laptop lunacy

The government lawyers appealed Judge King's ruling to the 9th Circuit Court of Appeals. But they blundered: They failed to file an immediate request to suspend the lower court proceedings that Judge King had authorized -- our showing of standing with secret affidavits describing the Document from memory. For two months we quietly worked on our written showing. By the end of October, having completed most of the drafting, all we had left to do was prepare our secret affidavits describing the Document from memory, along with a short supplemental secret brief explaining how the affidavits established standing. On Oct. 27, 2006, I flew to Portland from my home in Oakland, laptop computer in hand, to finish the work with co-counsel. The Oregon attorneys prepared the secret affidavits; I wrote the supplemental secret brief on my laptop. Three days later, we filed our documents with the district court.

The government attorneys were enraged. We'd caught them off guard. They wrote to Judge King and requested an immediate hearing, arguing we had prepared our secret papers and taken them to the courthouse without complying with CIA directives that require certain top secret documents to be "carried only in approved containers by authorized couriers" and "transmitted electronically only through 'specially designated and accredited communications circuits secured by an NSA-approved cryptographic system and/or protected distribution systems.'"

In fact, we'd only done what Judge King had said we could do. In a responding letter to the judge, we also pointed out that CIA directives don't apply to us because we aren't CIA employees. Nevertheless, in another moment of fear, we destroyed our drafts and notes for the secret filings. We no longer had copies of the secret documents we had filed.

During a short hearing, Judge King absolved us of wrongdoing but ordered that, in the future, we would have to confer with the DOJ attorneys before preparing secret filings. At the end of the hearing, the government attorneys demanded that we relinquish any electronic versions of the secret documents we had filed. The judge ordered all counsel to confer on this, too, and "see what you can work out." These two orders set the stage for some of the most bizarre experiences of my 29-year legal career.

Judge King suspended further proceedings on the standing issue until the pending 9th Circuit appeal was decided. That took nearly a year, during which time all of the four dozen cases nationwide challenging various aspects of the warrantless surveillance program were consolidated and transferred to the federal District Court in San Francisco for decision by a single judge, Vaughn Walker.

Meanwhile, the government attorneys demanded that we give them our computers to enable DOJ technicians to "wipe" the computers clean of any electronic remnants of secret material that might remain somewhere in the computers' hard drives. Because of attorney-client confidentiality considerations, we refused, proposing instead to do the wiping ourselves in whatever manner the government technicians suggested. We weren't about to let the DOJ go rummaging through our files. Negotiations on the "wiping" logistics dragged on throughout the winter.

Briefing blind

Come spring, we turned our attention to the 9th Circuit appeal, where the appellate court would decide whether the state secrets privilege required our lawsuit to be thrown out entirely. In June of 2007, the DOJ attorneys filed two opening briefs in the 9th Circuit. One brief was publicly available, to which we would be allowed to file a publicly available responsive brief. The other was filed in secret, under seal, for the judge's eyes only. The bad news for us was that we would not be permitted to see the government's secret brief; the (sort of) good news was that we could file our own secret brief in response.

Rebutting arguments you've not been allowed to see is a talent that isn't taught in law school. I consulted Kafka's "The Trial," looking for helpful tips, but found none. I tried guessing at what might be in the government's secret brief and then hazarding a response in our own. Because of Judge King's prior order, we had to confer with the DOJ attorneys on the logistics of how to do this secret filing.

The government attorneys referred us to DOJ employee Erin Hogarty, a Washington-based member of the DOJ's Litigation Security Section. I contacted Hogarty and said I needed to confer with her and review the documents we had filed under seal with Judge King the prior year. We made arrangements to meet at the federal courthouse in San Francisco on June 15, 2007.

Hogarty and I convened in a windowless interior room adjacent to Judge Walker's chambers. She had brought our previous secret filings with her. She set me up in the room with the filings, took my cellphone from me, instructed me that I could take no notes either then or later, and then left me alone while she sat outside the closed door. After a while, I called Hogarty back into the room and we discussed the logistics for drafting the secret appellate court filing.

Hogarty instructed me that the drafting session would take place in the DOJ's San Francisco offices under her supervision. I told her that, in addition to myself, I wanted another member of our Oregon legal team to attend the session. Before I even told her who I wanted, she volunteered "not Tom Nelson." A key member of the team, Nelson had helped prepare the affidavits we had filed the previous October and had hand-carried them to the courthouse. Hogarty said that Nelson had been "uncooperative," which I took to refer to strong objections he had voiced to the DOJ rummaging through his computer files. Hogarty then named one of our other Oregon team members -- Steven Goldberg -- as the only other attorney who could participate in the drafting session.

We chose a date: June 26, 2007. She then laid out ground rules: I could not prepare any advance notes that contained any classified information. I could not discuss any classified information over the telephone with Goldberg prior to the drafting session. Goldberg and I could only discuss the drafting "face to face" -- which was a problem, since I was in Oakland and he was in Portland. We would be put in a room at the DOJ's San Francisco offices, where we would be loaned a government computer on which to work.

The telltale banana peel

On the morning of June 26, Goldberg and I met Hogarty in the lobby of the San Francisco federal building. She took us through a locked door and into the DOJ offices, on a floor that was strangely deserted. She ushered us into a small interior room lined with bookshelves that had been completely emptied, except for a few chairs, a large table, a dusty telephone, a laptop computer and a printer. She took our cellphones.

At that point, we brought up the subject of Tom Nelson. Goldberg told Hogarty that we wanted to be able to telephone Nelson on a secure line during the drafting session, or, alternatively, have him fly down from Portland immediately to join us personally. Hogarty politely refused. Goldberg asked on whose instructions she was acting, and she named one of the DOJ attorneys, Andrew Tannenbaum -- although, as she put it, Tannenbaum had received the instructions from "higher up."

We went forward without Nelson, drafting our secret appellate brief in a DOJ office, on a DOJ computer, under the watch of a DOJ security officer -- that is, under the auspices and control of our adversary in the legal case. We could print out drafts but couldn't take them from the room; instead, we were to leave the drafts on the table to be shredded by Hogarty later. When the brief was done, we were to print out five copies: one for each of the three judges on the panel that would decide the appeal, one for the DOJ attorneys and one to be put in a special safe under Hogarty's supervision. She would personally give the judges their copies, which nobody else -- not the court clerks, not the judges' staff attorneys -- would be permitted to see. We would not be allowed to keep a copy of what we had written; the brief in Hogarty's safe was "our" copy.

Hogarty explained that anything we wrote down that contained classified information, then or later, would instantly become "derivatively classified" and thus unlawful for us to possess. I wondered whether this meant that the portion of my brain that remembers the Document is also "derivatively classified," making its presence in my skull unlawful.

Goldberg and I spent about three hours writing our response to the secret government brief we had not been allowed to see. I produced an initial draft without using notes. Goldberg edited and added to my draft, then I reedited, and so on. We took the brief through several drafts, printing out hard copies to work from as we went along. As lunchtime approached, I got hungry, which Goldberg mentioned to Hogarty during a bathroom break. Hogarty kindly offered me a banana. When we returned to our drafting, I ate the banana and set the peel alongside our stack of hard-copy drafts.

Finally, we printed out five copies of our finished brief, which I laid on the table alongside the stack of drafts and the banana peel, and I called for Hogarty. I told her: "Here's everything, even the banana peel." Hogarty said she would shred the drafts and the banana peel. (She may have been joking about the banana peel, but I couldn't be sure.) She returned our cellphones to us and escorted us out of the building into the San Francisco sunlight.

We submitted our 9th Circuit briefs on July 3, 2007. In the publicly available brief, we argued that the state secrets privilege shouldn't apply to the Al-Haramain case for several reasons. Among them was the Document's accidental disclosure to the plaintiffs, which meant the surveillance of them was no longer a secret. We also argued that we only want to use the Document to confirm the previously disclosed fact of the surveillance, and not to reveal any of its operational details, so the lawsuit did not threaten national security.

I can't reveal, of course, what we argued in our secret brief. The government subsequently filed a secret reply brief -- which we weren't allowed to see.

The court scheduled a hearing on the appeal for Aug. 15, 2007. At the same time, the court would hear oral arguments in a lawsuit filed by the Electronic Frontier Foundation (EFF) against telecommunications carrier AT&T, challenging AT&T's wholesale disclosure of its customers' e-mail and telephone records to the government as part of the warrantless surveillance program.

The attack of the Samsonite Gorillas

On Aug. 8, 2007 -- more than nine months after I'd drafted the secret supplemental brief we'd filed with Judge King -- the DOJ people came to "wipe" my laptop clean of any electronic remnants of the brief. We'd finally agreed on the logistics: Erin Hogarty would bring a DOJ technician from Washington, D.C., and we'd meet in the windowless room adjacent to Judge Walker's chambers in San Francisco, where the technician would do the deed in my presence. It turned out to be more of a "whacking" than a "wiping."

Hogarty brought someone she introduced simply as "Miguel." By this time, alas, my laptop, which was old, was in its death throes. After Miguel tried logging onto the laptop and encountered fatal errors, he pronounced it dead. Hogarty asked me whether it would be OK if they physically destroyed the hard drive. I'd bought a new laptop and had managed to retrieve from the old one everything that I cared about, so I agreed.

They had brought no tools with them. Hogarty was about to canvass the building for a screwdriver, but I had a pending meeting elsewhere, so Miguel made do by fashioning a crude implement from the metal clip of his pen. He pried the back cover off the computer and removed the hard drive and memory board.

The situation grew darkly comic. They didn't have a hammer, so they started debating how to smash the hard drive. I suggested they smack it against the corner of the table that was in the room. That didn't do much. Hogarty then had an idea to put the thing on the floor and use a table leg on it. Miguel put down the hard drive, picked up the table and brought it down several times forcefully. The noise resounded, but the hard drive was impervious. One of the table legs became bent from the procedure.

Next, Miguel tried attacking the hard drive with his homemade tool. Soon he'd managed to pry off the hard drive cover and commenced scratching at the components. Meanwhile, Hogarty took the memory board and began banging on it on the floor with a chair leg. The memory board was weaker than the hard drive and cracked in several places. Then she held the memory board in her hands and tried bending it, but Miguel stopped her, warning that he'd seen someone get cut badly doing that -- evidently they'd done this sort of thing before.

I found myself thinking of the Samsonite Gorilla, the TV commercial from the 1970s in which a gorilla stomps on a piece of luggage that just won't break. I thought: "These people are entrusted with our national security?"

Eventually they managed to turn two shiny pieces of technology into about 20 jagged pieces of junk. Miguel started to throw the pieces into the wastebasket, but I asked if I could keep them -- a dark memento of sorts -- and he agreed.

As for my colleagues' computers, Hogarty and Miguel made a separate trip to Oregon, where they destroyed one of Portland attorney Zaha Hassan's Zip disks. They checked Goldberg's computer but apparently didn't find what they were looking for and left his hard drive intact. Nelson resisted all efforts to get at his electronic files, telling the DOJ attorneys that if they wanted access to his computer they would have to get a court order. They made no effort to do so.

Arguing gagged

A week later, I was arguing the case before a three-judge panel of the 9th Circuit Court of Appeals in San Francisco. Hogarty told me beforehand that if I said anything during the hearing that risked a public disclosure of classified information, she would stop the proceedings and clear the courtroom, suggesting I would likely suffer unspecified but unpleasant consequences.

In the middle of my argument, Judge Margaret McKeown asked me what information we needed from the Document to demonstrate our clients' standing to sue under FISA. I was at a loss. When Judge McKeown pressed me, I said: "I cannot tell you. I have a sealed filing in this case." When she pressed further, I said: "What's in the Document, I cannot mention it today." This was not my most eloquent moment as a lawyer.

Then, DOJ attorney Thomas Bondy stood at the lectern and delivered a mind-boggling rebuttal to our argument that the surveillance of our clients was no longer a secret.

"They don't know," Bondy said. "Let me make clear what I mean by that. When plaintiffs explain what they mean when they say they, in quotes, 'know,' they don't know. What they mean when they say that is that they -- although they think or believe or claim they were surveilled, it's possible they weren't surveilled ... When they say they know, what they mean by that, on their own terms, is that they don't know."

Bondy went on to argue "it is absolutely clear and undisputed that the world at large, the whole world, does not know whether or not any of the plaintiffs were surveilled." This incredible exchange ensued:

Judge McKeown: The world knows what they think they know, whatever that is that they know.

Bondy: Exactly. And that's less than actually knowing whether it's true.

Judge McKeown: Boy, we are really splitting the "knows."

At this point Judge Michael Hawkins interjected: "Sounds like Donald Rumsfeld."

Bondy: But your honor, let me be plain. If it's entirely possible, and I'm not saying one way or the other, obviously --

Judge McKeown: Right, because you don't yet know.

Bondy: It's entirely possible --

Judge McKeown: And we can't know.

Bondy: It's entirely possible that everything they think they know, just to give one example, is completely false. It's possible, or maybe it's partly true.

And so on. If I'd been permitted a reply, I would have quoted from Lewis Carroll -- not from "Alice's Adventures in Wonderland," but from his poem "Jabberwocky": "Beware the jubjub bird, and shun the frumious Bandersnatch!"

Endgame?

The 9th Circuit issued its ruling on Nov. 16, 2007, reversing Judge King's decision and sending the case back to Judge Walker for further proceedings. The appellate court ruled that if the state secrets privilege applies to the Al-Haramain lawsuit, it must be thrown out because the Document is indeed a state secret, regardless of its accidental disclosure to the plaintiffs, and because public disclosure of information concerning the Document would threaten national security. Judge King's compromise of allowing us to file affidavits describing the Document from memory was, the appellate court said, an improper "back door around the privilege." But the appellate court also ordered Judge Walker to decide whether FISA preempts the state secrets privilege in FISA litigation because of provisions in FISA for adjudicating claims under secure and confidential procedural conditions, which would allow our lawsuit to go forward.

Judge Walker's decision last week was a major victory for us. Walker concluded that FISA does indeed preempt the state secrets privilege. More broadly, he addressed the key issue raised by our lawsuit -- the validity of the "unitary executive" theory -- and said what we've been long awaiting: that the president does not have unbridled power to disregard federal statutory law in the name of national security. According to Judge Walker, "the authority to protect national security information is neither exclusive nor absolute in the executive branch. When Congress acts to contravene the president's authority, federal courts must give effect to what Congress has required."

But the ruling also sends us back down the rabbit hole once again. Judge Walker further held that, because of the peculiar way in which the applicable FISA provisions are written, we can't use the Document to confirm our clients' wiretapping until we first make some sort of preliminary showing -- using only non-classified information -- of "enough specifics" indicating that our clients were wiretapped. Only that could lead to a ruling giving us standing -- a burden Walker suggested might be "insurmountable." According to Walker, "if reports are to be believed," we will have "little difficulty" establishing standing once we are able to use the Document. But we can't use it yet. At this point, the Document alone just gives us what Walker called "actual but not useful notice" of our clients' unlawful surveillance. We need something more, from non-classified information, for that "actual" notice to become "useful."

In other words, we must show that our clients were surveilled before we can show that our clients were surveilled. The irony in this is not lost on Judge Walker, who commented that FISA is "not user-friendly."

Judge Walker gave us 30 days to restructure our complaint to make our preliminary case -- based on non-classified information -- for using the Document to confirm our clients' surveillance. We're grateful for the opportunity. We even think we can do it, using bits and pieces of non-classified information that has been revealed about the warrantless surveillance program and the terrorist designation of Al-Haramain in the 28 months since we commenced the lawsuit.

Meanwhile, Congress is on the verge of killing the pending lawsuits against the telecommunications carriers with a grant of retroactive immunity from liability. The 9th Circuit has not yet decided the AT&T case, evidently waiting to see whether Congress gives the carriers retroactive immunity. Other lawsuits against the government have been thrown out or are in danger of being thrown out for lack of standing -- since the plaintiffs in those cases have no proof that they were actual victims of the warrantless surveillance program. The Al-Haramain case is likely to become the last -- the only remaining hope for a determination of the legality of the president's extrajudical spying program and for Supreme Court review of the "unitary executive" theory.

It's hardly a secret that the Al-Haramain plaintiffs were spied upon -- it's been reported in Salon, the New York Times, the Washington Post, the Los Angeles Times and the New Yorker magazine, among others. The reality is that the Al-Haramain case doesn't threaten national security; it threatens only the "unitary executive" theory and the notion that presidents can disregard an act of Congress at their pleasure. Yet we have had to litigate the Al-Haramain case in the shadow of secrecy, where the government wants the case to die quietly -- without a court ruling on whether the president of the United States has broken the law.

We, the members of the Al-Haramain legal team -- Ashlee Albies, Steven Goldberg, Bill Hancock, Zaha Hassan, Lisa Jaskol, Tom Nelson and I -- cannot let that happen without fighting to the end.