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Why Do We Still Accept That Governments Collect and Snoop on Our Data? |
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Monday, 31 October 2016 12:33 |
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Excerpt: "Bulk collection clearly violates global rights to privacy and free speech, and now, with a case before the European court of human rights, is the time to stop it."
A team of security agents conducting surveillance. (photo: US Navy)
Why Do We Still Accept That Governments Collect and Snoop on Our Data?
By Ashley Gorski and Scarlet Kim, Guardian UK
31 October 16
Bulk collection clearly violates global rights to privacy and free speech, and now, with a case before the European court of human rights, is the time to stop it
 n recent weeks, the Hollywood film about Edward Snowden and the movement to pardon the NSA whistleblower have renewed worldwide attention on the scope and substance of government surveillance programs. In the United States, however, the debate has often been a narrow one, focused on the rights of Americans under domestic law but mostly blind to the privacy rights of millions of others affected by this surveillance.
Indeed, just last week, a British court held that British intelligence agencies acted unlawfully by concealing bulk spying programs from the public for over a decade. Soon, in a lawsuit brought by Privacy International, the ACLU and eight other organizations, the influential European court of human rights will also weigh in on surveillance programs revealed by Snowden, and the result could have implications far beyond Europe.
Although the debate in the US has led to some piecemeal reforms – including the USA Freedom Act and modest policy changes – many of the most intrusive government surveillance programs remain largely intact. These include programs conducted not just by the NSA, but also by its close partner in the United Kingdom, called the Government Communications Headquarters (GCHQ), with whom the NSA swaps vast sets of private data.
This bulk surveillance violates rights to privacy and freedom of expression – rights that are guaranteed not only under US domestic law, but also under international human rights law. That latter legal framework speaks a universal language, enumerating fundamental rights that every person enjoys by virtue of our common humanity.
Following the Snowden revelations, we brought suit in British court, challenging surveillance programs that violate these fundamental rights. The case has now made its way to the European court of human rights, where we recently filed our principal submission. The court plays a critical role in the international human rights system by enforcing the European Convention on Human Rights, a treaty ratified by 47 nations. Its judgments are legally binding and its rulings help shape the interpretation of human rights law throughout the world.
The lawsuit challenges the British government’s mass surveillance of internet traffic transiting undersea fiber-optic cables, as well as the UK’s access to information gathered through the NSA’s breathtaking array of bulk spying programs. These have included, for example, the NSA’s recording of every single cellphone call into, out of, and within at least two countries; its collection of hundreds of millions of contact lists and address books from personal email and instant-messaging accounts; and its surreptitious interception of data from Google and Yahoo user accounts as that information travels between those companies’ data centers located abroad. The suit also seeks to shed light on the secret information-sharing agreements governing GCHQ’s access to these massive hoards of NSA-collected data – and vice versa.
While this lawsuit has clear implications for the rights of non-Americans, it matters for Americans as well. It is one of the first direct challenges to mass surveillance within the international human rights framework. The judgments of the European court of human rights influence the interpretation of other international human rights instruments, such as the International Covenant on Civil and Political Rights, which the US ratified in 1992. A determination by the court that GCHQ’s mass surveillance is unlawful would call comparable NSA surveillance programs into question by sending a powerful message that they are fundamentally incompatible with human rights.
The international human rights law framework makes clear that government surveillance must be prescribed by law, targeted and proportionate. These requirements are designed to balance a government’s need to address security threats and its obligation to protect fundamental rights. Bulk spying programs plainly fail that test.
By their very nature, bulk spying programs are neither targeted nor proportionate. They invade the privacy of broad swaths of people without any individualized suspicion of wrongdoing. Surveillance should be directed at obtaining specific intelligence in individual operations, not indiscriminately subjecting all of our private information to government scrutiny.
Moreover, in both the UK and US, the legal basis for and full scope of government surveillance powers remain opaque. Critical safeguards – such as independent judicial review of spying programs – are hobbled or, in many instances, non-existent.
The intelligence-sharing arrangements challenged in this case underscore a critically important fact as well: we are all foreigners to someone. The British government’s mass surveillance programs surely intercept the communications and data of Americans. If Americans are concerned about other countries intercepting their information in bulk and sharing that information – including with the US government – then they should care about ensuring there is an international legal framework that constrains these activities.
Just as human rights law requires that surveillance be prescribed by law, targeted, and proportionate, government information-sharing should adhere to the same standard. Outsourcing surveillance hardly lessens the intrusion. Therefore, whether the UK or US intercepts the information itself or obtains the same flow of data from another intelligence agency, the same protections should apply.
As the debate over mass surveillance continues, it is vital that we consider the ways in which this spying violates the fundamental rights of millions of individuals throughout the world. Should the European court of human rights rule against mass surveillance, its decision will have far-reaching implications for the rights of Americans and non-Americans alike.
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The Universal Right to Capital Income |
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Monday, 31 October 2016 12:31 |
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Varoufakis writes: "If a universal basic income is to be legitimate, it cannot be financed by taxing Jill to pay Jack. That is why it should be funded not from taxation, but from returns on capital."
Yanis Varoufakis. (photo: Getty)
The Universal Right to Capital Income
By Yanis Varoufakis, Project Syndicate
31 October 16
 he right to laziness has traditionally been only for the propertied rich, whereas the poor have had to struggle for decent wages and working conditions, unemployment and disability insurance, universal health care, and other accoutrements of a dignified life. The idea that the poor should be granted an unconditional income sufficient to live on has been anathema not only to the high and mighty, but also to the labor movement, which embraced an ethic revolving around reciprocity, solidarity, and contributing to society.
When unconditional basic-income schemes were proposed decades ago, they inevitably met outraged reactions from employers’ associations, trade unions, economists, and politicians. Recently, however, the idea has resurfaced, gathering impressive support from the radical left, the Green movement, and even from the libertarian right. The cause is the rise of machines that, for the first time since the start of industrialization, threaten to destroy more jobs than technological innovation creates – and to pull the rug out from under the feet of white-collar professionals.
But as the idea of a universal basic income has returned, so has resistance from both the right and the left. Rightists point to the impossibility of raising enough revenue to fund such schemes without crushing the private sector, and to a drop in labor supply and productivity, owing to the loss of work incentives. Leftists worry that a universal income would weaken the struggle to improve people’s working lives, legitimize the idle rich, erode hard-won collective-bargaining rights (by empowering companies like Uber and Deliveroo), undermine the foundation of the welfare state, encourage passive citizenship, and promote consumerism.
Cheerleaders for such schemes – on both the left and the right – argue that universal basic income would support those who already contribute priceless value to society, mainly women in the caring sector – or, indeed, artists producing great public works for next to no money. The poor would be liberated from vicious welfare-state means testing, and a safety net that can entangle people in permanent poverty would be replaced by a platform on which they could stand before reaching out for something better. Young people would gain the freedom to experiment with different careers and to study topics that are not considered lucrative. Moreover, in today’s increasingly pervasive gig economy, with unions shrinking along with their capacity to protect workers, the economic stability that most people are losing would be restored.
The key to moving forward is a fresh perspective on the connection between the source of a universal basic income’s funding, the impact of robots, and our understanding of what it means to be free. That implies combining three propositions: taxes cannot be a legitimate source of financing for such schemes; the rise of machines must be embraced; and a universal basic income is liberty’s main prerequisite.
The idea that you work hard and pay your income taxes, while I live off your enforced kindness, doing nothing by choice, is untenable. If a universal basic income is to be legitimate, it cannot be financed by taxing Jill to pay Jack. That is why it should be funded not from taxation, but from returns on capital.
A common myth, promoted by the rich, is that wealth is produced individually before it is collectivized by the state, through taxation. In fact, wealth was always produced collectively and privatized by those with the power to do it: the propertied class. Farmland and seeds, pre-modern forms of capital, were collectively developed through generations of peasant endeavor that landlords appropriated by stealth. Today, every smartphone comprises components developed by some government grant, or through the commons of pooled ideas, for which no dividends have ever been paid to society.
So how should society be compensated? Taxation is the wrong answer. Corporations pay taxes in exchange for services the state provides them, not for capital injections that must yield dividends. There is thus a strong case that the commons have a right to a share of the capital stock, and associated dividends, reflecting society’s investment in corporations’ capital. And, because it is impossible to calculate the size of state and social capital crystalized in any firm, we can decide how much of its capital stock the public should own only by means of a political mechanism.
A simple policy would be to enact legislation requiring that a percentage of capital stock (shares) from every initial public offering (IPO) be channeled into a Commons Capital Depository, with the associated dividends funding a universal basic dividend (UBD). This UBD should, and can be, entirely independent of welfare payments, unemployment insurance, and so forth, thus ameliorating the concern that it would replace the welfare state, which embodies the concept of reciprocity between waged workers and the unemployed.
Fear of machines that can liberate us from drudgery is a symptom of a timid and divided society. The Luddites are among the most misunderstood historical actors. Their vandalism of machinery was a protest not against automation, but against social arrangements that deprived them of life prospects in the face of technological innovation. Our societies must embrace the rise of the machines, but ensure that they contribute to shared prosperity by granting every citizen property rights over them, yielding a UBD.
A universal basic income allows for new understandings of liberty and equality that bridge hitherto irreconcilable political blocs, while stabilizing society and reinvigorating the notion of shared prosperity in the face of otherwise destabilizing technological innovation. Disagreements of course will continue; but they will be about issues such as the proportion of company shares that should go to the Depository, how much welfare support and unemployment insurance should be layered on top of the UBD, and the content of labor contracts.
Anyone still not reconciled to the idea of “something for nothing” should ask a few simple questions: Would I not want my children to have a small trust fund that shields them from the fear of destitution and allows them to invest fearlessly in their real talents? Would their peace of mind render them lazy layabouts? If not, what is the moral basis for denying all children the same advantage?
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10 Nasty Women Who Shaped American History |
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Monday, 31 October 2016 12:30 |
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Schatz writes: "Before Trump ever called Hillary Clinton a 'nasty woman,' these fierce ladies were getting it done - in the face of B.S. from the boys."
Before Trump ever called Clinton a 'nasty woman,' these fierce ladies were getting it done - in the face of B.S. from the boys. (Left to Right) Josephine Baker, Venus Williams and Emma Goldman. (illustration: Miriam Klein Stahl)
10 Nasty Women Who Shaped American History
By Kate Schatz, Yes! Magazine
31 October 16
Before Trump ever called Clinton a “nasty woman,” these fierce ladies were getting it done—in the face of B.S. from the boys.
“Nasty women are tough. Nasty women are smart. And nasty women vote.”
—Sen. Elizabeth Warren
 ere’s one way to look at this election: The upside to a certain candidate’s rampant misogyny is that we get amazing feminist memes, like #NastyWomenGetItDone, that allow us a platform for conversations about serious issues that affect women. While we’re all talking about—and celebrating—the “nasty woman,” here’s a roundup of some American women who’ve been making change happen and getting shit done—always on their own terms—and always in the face of B.S. from the boys.
What would Trump have to say about these women? Actually, who the hell cares?
1. Venus and Serena Williams
The Williams sisters are arguably two of the world’s greatest living athletes. They’re also fashion designers, actors, entrepreneurs, and activists. Serena has spoken out against police brutality and in support of Black Lives Matter, and Venus led a multi-year battle for equal pay for winners at Wimbledon and the French Open.
They’ve risen above poverty, racist attacks, and endless criticism and have won Olympic medals, dominated tournaments, and even played a key cameo in Beyonce’sLemonade. Venus and Serena ain’t sorry, ever.
2. Emma Goldman
Like your birth control? Well, then send a thank you to Emma Goldman, who began smuggling contraceptives into the U.S. in the 1910s.
Emma, a devoted anarchist and well-known Socialist activist, speaker, and writer, realized the importance of birth control while working as a midwife in the cramped slums of New York’s Lower East Side. She saw women dying from self-induced abortions and realized that contraception was essential to the liberation and safety of women. Her lectures on birth control were some of her best-attended, and she was arrested at least twice for distributing pamphlets advocating for contraception—writing or speaking about it was a violation of the truly nasty Comstock Law.
Emma also became a mentor to a young activist who would take up the fight for legalized birth control: Margaret Sanger.
3. Queen Lili‘uokalani
Lydia Lili‘u Loloku Walania Wewehi Kamaka‘eha was 40 years old when she became the first and only Queen of the Kingdom of Hawai‘i, and she was up against some serious nastiness right off the bat.
American businessmen like Sanford Dole were ramping up efforts to control Hawai‘i, mostly for pineapple and sugarcane crops. The new queen was fiercely opposed to this and did everything she could to save her kingdom. After she attempted to rewrite the constitution to restore the voting rights of Native Hawaiians, pro-American interests orchestrated a coup and put her in house arrest in her own palace.
While imprisoned, she wrote a book that would become the first published by a Hawaiian woman, as well as her most famous song:Aloha ‘Oe.
Seventy-six years after her death, the U.S. government finally apologized for the unlawful overthrow of theKingdom of Hawai‘i.
4. Guerrilla Girls
For the past 30 years an anonymous group of women have been advocating and agitating for women and people of color in the art world—and they’ve been wearing gorilla masks the entire time. Collectively, they call themselves the Guerrilla Girls. Individually, they take on the names of dead female artists.
With a combination of bawdy humor, bold design, and stark statistics, these masked feminist superheroes have created almost 100 posters, actions, billboards, postcards, and books that call out gender and racial bias in art, film, politics, and pop culture. They even schooled Stephen Colbert.
5. Josephine Baker
Josephine Baker is best known as a Jazz Era entertainer who titillated and scandalized French crowds with her topless dances and banana skirt. At the height of her fanciness she had a pet cheetah named Chiquita, whom she paraded around wearing a diamond collar.
But here are some other fun facts about Josephine that you may not know: She was a spy during WWII and seduced Nazis and wrote their military secrets in invisible ink on her sheet music and passed them on to the French Resistance. She helped desegregate top American nightclubs in places like Las Vegas and Miami by refusing to play for segregated audiences. She was the only woman to speak alongside Dr. Martin Luther King during the March on Washington. And decades before the Jolie-Pitts, she adopted 12 children from all over the world to show that racial harmony is possible.
6. Angela Davis
Angela Davis has become a cultural political icon, and while she’s most known for her involvement with the Black Panther Party (which celebrates its 50th anniversary this year), her life is a case study in “How To Be A Badass Nasty Woman Who Never Stops Working For Social Change and Justice.”
She’s an academic, an author, a speaker, a professor, an organizer, an agitator, and a tireless voice for the voiceless. Armed with a profound intellect that’s deeply rooted in philosophy, she has been speaking and acting from the intersections of race, class, and gender for decades.
7. Dolores Huerta
March 31is Cesar Chavez Day, a federal commemorative holiday proclaimed by President Obama in 2014. This is a great thing—and no shade at all to Mr. Chavez—but can we please get a Dolores Huerta Day too?She and Cesar worked side by side, co-founding the United Farm Workers union and organizing the labor movement in California and beyond.
It was Dolores who directed the 1965 Delano grape boycott, and her work as a political advocate has resulted in the passage of a number of significant labor protections for farm workers. She also spoke out about sexism within the labor movement, calling out her comrades for their misogynistic remarks in meetings and demanding they speak with respect. At 86 years old, she’s still going strong and fighting the good fight.
8. Billie Jean King
Billie Jean King didn’t want to play in a match against Bobby Riggs—in fact, she would’ve preferred to ignore his sexist taunting altogether and just focus on being one of the best tennis players of her time.
But he wouldn’t shut up, so she finally agreed. And then she kicked his ass in front of 90 million eager viewers.
The “Battle of the Sexes” became an iconic match, the one King is most known for. But she had a huge impact on women’s sports off the court as well. She was a champion of Title IX, she led the effort to start the first professional women’s tennis tournament tour, and she started the Women’s Tennis Association, which began as a group of nine female players who were sick of pay inequality and decided to just make their own league. She’s also been an outspoken advocate for the LGBTQ community for many years.
9. Lucy Parsons
Lucy Gonzalez Parsons was born in Texas during the Civil War. As a mixed-race woman (Native American, Mexican, and African-American) who married a White man, life in Texas was tough. They moved to Chicago and quickly became involved in the labor movement.
Strong-willed Lucy rose to prominence as a speaker, writer, organizer, and labor leader. She was also a mother of two, and when Albert lost his job she opened her own dress shop—all the while remaining involved in the labor struggle.
She and her family led the first May Day march in 1886, leading 80,000 people down Chicago streets in the fight for an eight-hour workday. And after the infamous Haymarket riots, when Albert was arrested and imprisoned, she toured the county speaking out in his defense. After his execution, she persevered, continuing her fight for labor rights and women’s rights as well.
10. Patti Smith
Patti Smith is a punk rock legend whose poetic lyrics and gravelly voice helped define the 1970s New York punk scene. For more than 40 years, she’s been consistently creating fierce music, art, and literature that doesn’t shy from speaking truth to power.
When I watched Patti, who is now 70, play in Santa Cruz, California, earlier this year, it was by far the most intense, emotionally charged rock performance I have ever seen. Fists were raised, political revolutions were invoked, and the strings of a Strat were ripped off, one by one.
When Patti stepped to the edge of the stage, held the wrecked guitar above her head, and howled: “This is the weapon of my generation! Love one another!” little beads of her spit landed on my face. I definitely did not wipe it off. Instead I waved my arms and screamed right back at her—one nasty woman among many. All of us, empowered and engaged.
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FOCUS | The Case for Firing James Comey: Americans Have Rights. Even if They Are Hillary Clinton. |
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Monday, 31 October 2016 11:38 |
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Millhiser writes: "What was FBI Director James Comey thinking? Let's take stock of all that we've learned since Comey sent a cryptic letter to several Republican congressional committee chairs on Friday informing them that the FBI had uncovered some emails that may, or may not, have something to do with a previous investigation into Secretary Hillary Clinton's private email server."
Hillary Clinton and FBI Director James Comey. (photo: Getty Images)
The Case for Firing James Comey: Americans Have Rights. Even if They Are Hillary Clinton.
By Ian Millhiser, ThinkProgress
31 October 16
Americans have rights. Even if they are Hillary Clinton.
 hat was FBI Director James Comey thinking?
Let’s take stock of all that we’ve learned since Comey sent a cryptic letter to several Republican congressional committee chairs on Friday informing them that the FBI had uncovered some emails that may, or may not, have something to do with a previous investigation into Secretary Hillary Clinton’s private email server.
We know that Comey does not know what is in these emails.
We know that many, possibly even all, of these emails may be duplicates of messages the FBI already reviewed.
We know that, at the time when Comey wrote his letter, the FBI had not even obtained a warrant permitting them to read these emails.
Some reports state that the emails are “not to or from Clinton.”
Oh, and we know one other thing. We also know that Comey violated longstanding Justice Department protocol when he decided to disclose the very few facts that he actually did disclose in his letter to the Republican chairs. And we know that he wrote the letter over the explicit objections of Attorney General Loretta Lynch.
Taken together, these actions constitute a fireable offense.
President Obama should fire James Comey. He should do so not because of the political consequences of Comey’s actions—although those consequences could be quite severe—but because Comey’s actions show an unacceptable disregard for the safeguards that exist to protect innocents from the awesome power of a federal police force.
Where Comey went wrong
The Justice Department, as former Deputy Attorneys General Jamie Gorelick and Larry Thompson explain in the Washington Post, operates “under long-standing and well-established traditions limiting disclosure of ongoing investigations to the public and even to Congress, especially in a way that might be seen as influencing an election.” Yet Comey gave unclear but highly damaging information to a major presidential candidate’s political enemies just eleven days before the 2016 election.
And he did so despite the fact that he has no idea whether there is any evidence that she did something wrong—and despite the fact that his agents haven’t even begun to search for such evidence. It’s as if Comey implicated Clinton in the John F. Kennedy assassination because Comey heard that she may have once been in Dallas.
It’s as if Comey implicated Clinton in the John F. Kennedy assassination because Comey heard that she may have once been in Dallas.
Hillary Clinton is many things. She is a former first lady, a former senator, and a former secretary of state. It is more likely than not that she will also be the next president of the United States. But Clinton is also an American, and that means that she enjoys certain rights if the state attempts to bring its police power to bear against her.
The Bill of Rights spills more ink on the rights of people caught up in the criminal justice system than on any other topic. Police (or FBI agents, who are effectively federal police) cannot subject people to “unreasonable searches and seizures.” They cannot obtain a search warrant, except upon “probable cause.” And even then, the scope of the search must be limited and specified in the warrant.
After police clear these hurdles, criminal suspects still enjoy a panoply of other rights. They cannot be twice tried for the same crime by the same sovereign. They must be afforded a fair process. They must be granted a speedy trial, legal representation, and an impartial jury. Excessive bail may not imposed on criminal defendants, nor may “cruel and unusual punishments” be inflicted on the guilty.
The framers of our Constitution, in other words, were well aware of the dangers of an unchecked police force, and they made considerable efforts to rein in law enforcement. One of the most important of these checks is a constitutional system which requires police and prosecutors to clear a rising series of hurdles as they seek to impose more and more state power upon an individual.
As the Supreme Court explained in Terry v. Ohio, police may not even perform a fairly cursory stop unless they are “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Law enforcement typically cannot conduct a more intrusive search, or make an arrest, unless they have “probable cause” to believe that a crime has been committed—and, in the case of a search, to believe that the search will uncover evidence of such a crime. Prosecutors, meanwhile, must prove beyond a reasonable doubt that a criminal defendant committed a crime in order to obtain a conviction.
Over at the Volokh Conspiracy, conservative legal scholar Orin Kerr argues that “expanding the FBI’s investigation from the unrelated case to the Clinton case” may itself violate the Fourth Amendment. But even setting aside that potential problem with the FBI’s actions, the FBI is also constrained by a wide range of laws and internal policies intended to protect innocents against the agency’s power.
The Justice Department’s longstanding policy of not disclosing information that could influence an election is very much an extension of our constitutional structure. The Constitution imposes escalating burdens of proof on the government in order to prevent the state from bringing its force to bear against someone who has not be shown to be guilty of any crime. And the Justice Department’s policy serves this same goal.
As Gorelick and Thompson explain, DOJ policy exists to “avoid misuse of prosecutorial power by creating unfair innuendo to which an accused party cannot properly respond.” The New Yorker’s Jane Meyer quotes an unnamed former senior Justice Department official making a similar point. A disclosure like the one Comey made on Friday “impugns the integrity and reputation of the candidate, even though there’s no finding by a court, or in this instance even an indictment.”
Imagine that you were applying for a job. Imagine now that, after a successful interview and glowing job references, you fully expected to receive a job offer in the coming weeks. Now imagine that, while you were awaiting that offer, the local police chief contacted the company you hoped to work for, and informed them that they were conducting some vague investigation into something you did in the past.
That’s what James Comey did to Hillary Clinton.
The cardinal rule of American criminal law is that no one may be punished—or, in many cases, even subjected to a significant inconvenience—without some reason to believe they are somehow engaged in wrongdoing. Comey broke that cardinal rule. And he did so despite the fact that, as far as he or anyone else knows, the FBI has no evidence whatsoever that Clinton engaged in wrongdoing.
So what comes next?
To be sure, federal officials, even very senior and high ranking ones, sometimes make mistakes. (Just ask Hillary Clinton.) It would be wrong to drag Comey across the coals simply because he committed an error of judgment. Firing an FBI director should require more than that.
But Comey’s error cuts at the most important safeguards that must exist to prevent one of America’s most powerful and intrusive federal agencies from endangering basic civil liberties. To his credit, Comey reportedly keeps a copy of the FBI’s wiretap request targeting Martin Luther King, Jr. on his desk as a reminder of the agency’s ability to do wrong.
Lest there be any doubt, that ability is enormous. A congressional investigation into former FBI Director J. Edgar Hoover COINTELPRO revealed that the FBI targeted political dissidents with tactics that were “indisputably degrading to a free society.” The FBI “anonymously attack[ed] the political beliefs of targets in order to induce their employers to fire them.” It mailed “letters to the spouses of intelligence targets for the purpose of destroying their marriages.” It falsely labeled “as Government informants members of groups known to be violent, thereby exposing the falsely labelled member to expulsion or physical attack.” And it falsely informed a Chicago gang leader that the Black Panthers have “a hit out for you” in the hopes that the gang leader would “take retaliatory action.”
In one of the FBI’s darkest moments, it “mailed Dr. King a tape recording made from microphones hidden in his hotel rooms which one agent testified was an attempt to destroy Dr. King’s marriage.” This record, moreover, “was accompanied by a note which Dr. King and his advisors interpreted as threatening to release the tape recording unless Dr. King committed suicide.”
The rules are there for a reason. They are there because law enforcement agencies become very dangerous if they think they can make on-the-fly decisions about what crosses the line.
There’s no indication that Comey engaged in misconduct approaching what happened under Director Hoover, and there’s no reason to think he had nefarious intent. In a letter to FBI employees, Comey said that he wrote the inflammatory letter to the Republican chairs because he felt “an obligation to do so given that I testified repeatedly in recent months that our investigation was completed” and that he also thought “it would be misleading to the American people were we not to supplement the record.”
But that does not change the fact that Comey violated longstanding policies that exist to protect both the rights of the accused and the integrity of America’s democracy.
An FBI director decides that the rules don’t apply to just this one case, because of the unusual level of public interest. An agent breaks into a home without a warrant because he doesn’t want to wait to catch a particularly nefarious criminal. A beat cop plants evidence on an especially dangerous criminal, because the public is better off with him off the street. All of these things may be done for good purposes, but the rules are there for a reason.
Law enforcement agencies become very dangerous if they think they can make on-the-fly decisions about what crosses the line. The rules exist to keep good faith actors from becoming J. Edgar Hoover.
The political nightmare
The irony of Comey’s bluster is that its highly political nature likely insulates him from consequence.
In the still-probable event that Clinton wins the presidential election, she cannot fire Comey—at least until the FBI concludes this latest phase of its examination of her emails—lest she appear to be engaged in self-dealing.
That leaves President Obama, who no doubt does not want to be accused of protecting his chosen successor. He may also be worried about leaving a key vacancy that the dysfunctional Senate is unlikely to fill before the next president takes office. If that president is Clinton, there are obvious reasons why she should not appoint anyone to replace Comey until after the email investigation is concluded.
The FBI does have a clear contingency plan in place to deal with a long-term vacancy at the top. Deputy Director Andrew McCabe, a career FBI agent with about 20 years of experience, would assume Comey’s duties in his absence.
So, in removing Comey, President Obama can send a clear message that the rule of law depends on law enforcement agencies being bound by rules that apply to all cases. And the agency can continue its business without the awkward spectacle of Clinton choosing Comey’s successor before the agency completes its inquiry into the new emails.
This, admittedly, is not an ideal solution. McCabe’s wife ran as a Democrat for a seat in the Virginia state senate. Republicans will no doubt use that as an excuse to question the new acting director’s impartiality.
But we are in this mess, at last in part, because Comey felt an obligation to ward off attacks from Republican lawmakers by providing them with information he had no business making public before an election. It’s time to stop basing crucial decisions about what rules apply to law enforcement on an impossible desire to placate GOP partisans, and to start restoring confidence in the FBI.
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es, there is a cruel, stupid irony about living in a country when, on the same day, a bunch of gun-toting rubes who have less understanding of the Constitution than a wombat does of nuclear fusion 
