Author Archives: JoyBarnhill

32 Countries Where Global Warming Could Make Violence Worse

by JoyBarnhill Posted on October 30, 2014

Mother Jones

Recently, the Pentagon released a disturbing report. Climate change, it warned, will exacerbate problems like terrorism and disease outbreaks, drain military resources, and create new enemies. The report said that the military’s basic operations—everything from training to its supply chains and infrastructure—are now threatened by rising temperatures and shifting weather patterns. It all points to one conclusion: Global warming is a national security issue.

Now a new analysis, released Wednesday, is naming 32 countries in which conflict and civil unrest could be worsened by the changing climate. The findings are part of the seventh annual “Climate Change and Environmental Risk Atlas” from Maplecroft—a firm that studies how vulnerable countries are to various risks. It concludes that climate change is already impacting “food production, poverty, migration and social stability—factors that significantly increase the risk of conflicts and instability in fragile and emerging states.”

Those pressures could also “lead to disenfranchisement and drive support for radical groups.”

Maplecroft

Maplecroft analyzed how exposed populations in these are countries are to climate impacts and assessed how well their governments will be able to adapt over the next 30 years. According to the report, the five countries most vulnerable to climate-related conflict and food insecurity are Bangladesh, Sierra Leone, South Sudan, Nigeria, and Chad.

The 10 countries that Maplecroft found were most vulnerable to food insecurity and climate change. Maplecroft

The report’s authors highlight Nigeria (tied for third the list), where “widespread drought and food insecurity helped create the socio-economic conditions that led to the emergence of Boko Haram and the violent insurgency in the North East of the country.”

Boko Haram is a militant Islamist group that the US Justice Department says has been responsible for 600 attacks on government, churches, mosques and schools. It has killed about 5,000 people since 2009 and displaced over 650,000. The group kidnapped more than 200 girls and young women in April. (The Nigerian government says it has reached a ceasefire with the militants that would include the release of the girls, but according to the BBC the talks are still ongoing.)

After visiting Nigeria earlier this year, my Mother Jones colleague Erika Eichelberger found that drought, population explosion, environmental degradation, and poverty are all aggravating the country’s armed conflicts. There are now more clashes between farmers and nomadic herders over ever-dwindling agricultural land, and economic hardships in the country are boosting Boko Haram’s recruitment efforts. Eichelberger quoted Oluwakemi Okenyodo, the executive director of CLEEN Foundation, a Nigerian security-focused nonprofit, as saying that when “young people are pushed to the wall,” there’s a greater chance that they will be sucked into the growing Boko Haram insurgency. Eichelberger reported that “there’s not enough hard evidence yet to implicate human-caused climate change in the bulk of the ecological disaster” in Nigeria—but that could change in the future as rising temperatures increasingly threaten agriculture in the region.

In a 2011 report, the United States Institute of Peace outlined a “basic causal mechanism” linking global warming to future conflict in Nigeria: Water and agricultural land shortages are followed by sickness, hunger, and joblessness. Governmental inaction on these issues in turn opens the door to conflict. “In the increasingly parched, violent northeast,” writes the report’s lead author Aaron Sayn, “members of groups like Boko Haram explain their acts by voicing disgust with government.”

Lake Chad supports vast swathes of Nigerian farming and grazing land, but it has lost more than 90 percent of its original size. Jacques Descloitres/NASA GSFC

Maplecroft’s rankings lend even more weight to the growing body of research tying climate change to the potential for more violence. Prior to the unrest that eventually exploded into revolution and armed conflict, Syria had experienced an unprecedented drought that led to the internal displacement of thousands of people who had lost their livelihoods.

Natural resources were also at the heart of the Darfur crisis. “It is no accident that the violence in Darfur erupted during the drought,” UN Secretary General Ban Ki Moon wrote in a 2007 Washington Post op-ed. “Amid the diverse social and political causes, the Darfur conflict began as an ecological crisis, arising at least in part from climate change.”

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32 Countries Where Global Warming Could Make Violence Worse

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Liberals Fight Back Against Obama Court Nominees

by JoyBarnhill Posted on May 12, 2014

Mother Jones

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Democrats may have done away with the filibuster for judicial nominees, but the infamous blue-slip procedure remains alive and well. This means that Republican senators can still block nominees unless President Obama cuts some kind of deal with them. That’s exactly what Georgia’s Saxby Chambliss and Johnny Isakson have done for the past several years, so in 2013 the White House negotiated a compromise with them. They agreed to approve several of Obama’s judicial nominees in return for getting their way on one of them. Now liberals are pissed:

Liberals are incensed that the administration is pushing hard for Michael Boggs, a judge on Georgia’s state Court of Appeals, to join the federal bench in Georgia. Boggs, a conservative Democrat, voted while in the state Legislature to reinstate a version of the Confederate flag as the state flag, opposed same-sex marriage and took positions on abortion that critics say would have limited women’s rights.

….As that fight plays out, prominent senators from both parties, backed by the American Civil Liberties Union, are trying to block, or at least delay, a planned vote on Harvard law professor David Barron, whom Obama has nominated to be a judge on the 1st Circuit Court of Appeals, which hears cases from New England. As a Justice Department lawyer, Barron wrote at least one memo that provided the legal justification for the targeted killing of Anwar Awlaki, a U.S. citizen who was slain by a drone strike in Yemen in 2011.

In one sense, it’s hard to know what liberals expect here. Boggs is obviously not a good nominee, but it’s not as if Obama is in love with the guy. He just agreed to swallow hard and nominate him in return for getting support for four others. Since there’s nothing Obama can do about the blue-slip rule, he didn’t have much choice about it. As for Barron, it’s hard to be too shocked over his nomination. Obama himself approved the killing of Awlaki and has vigorously defended it. Of course he supports Barron.

But in another sense, it’s good to see liberals fighting back. Maybe it won’t do any immediate good, just as it doesn’t always do any good for tea partiers to harass mainstream Republicans. But if the fight is rough enough, it sets boundaries for future nominations. That’s probably the main benefit of opposition in this case: Both of these nominees might be approved anyway, but at least the White House will know they’ve been in a scrap. Maybe next time they’ll think twice.

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Liberals Fight Back Against Obama Court Nominees

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The War on Whistleblowers May Have a "Chilling Effect on Future Acts of Conscience"

by JoyBarnhill Posted on March 4, 2014

Mother Jones

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This story first appeared on the TomDispatch website.

The Obama administration has just opened a new front in its ongoing war on whistleblowers. It’s taking its case against one man, former Transportation Security Administration (TSA) Air Marshal Robert MacLean, all the way to the Supreme Court. So hold on, because we’re going back down the rabbit hole with the Most Transparent Administration ever.

Despite all the talk by Washington insiders about how whistleblowers like Edward Snowden should work through the system rather than bring their concerns directly into the public sphere, MacLean is living proof of the hell of trying to do so. Through the Supreme Court, the Department of Justice (DOJ) wants to use MacLean’s case to further limit what kinds of information can qualify for statutory whistleblowing protections. If the DOJ gets its way, only information that the government thinks is appropriate—a contradiction in terms when it comes to whistleblowing—could be revealed. Such a restriction would gut the legal protections of the Whistleblower Protection Act and have a chilling effect on future acts of conscience.

Having lost its case against MacLean in the lower courts, the DOJ is seeking to win in front of the Supreme Court. If heard by the Supremes—and there’s no guarantee of that—this would represent that body’s first federal whistleblower case of the post-9/11 era. And if it were to rule for the government, even more information about an out-of-control executive branch will disappear under the dark umbrella of “national security.”

On the other hand, should the court rule against the government, or simply turn down the case, whistleblowers like MacLean will secure a little more protection than they’ve had so far in the Obama years. Either way, an important message will be sent at a moment when revelations of government wrongdoing have moved from the status of obscure issue to front-page news.

The issues in the MacLean case—who is entitled to whistleblower protection, what use can be made of retroactive classification to hide previously unclassified information, how many informal classification categories the government can create bureaucratically, and what role the Constitution and the Supreme Court have in all this–are arcane and complex. But stay with me. Understanding the depths to which the government is willing to sink to punish one man who blew the whistle tells us the world about Washington these days and, as they say, the devil is in the details.

Robert MacLean, Whistleblower

MacLean’s case is simple—and complicated.

Here’s the simple part: MacLean was an air marshal, flying armed aboard American aircraft as the last defense against a terror attack. In July 2003, all air marshals received a briefing about a possible hijacking plot. Soon after, the TSA, which oversees the marshals, sent an unencrypted, open-air text message to their cell phones cancelling several months of missions for cost-cutting reasons. Fearing that such cancelations in the midst of a hijacking alert might create a dangerous situation for the flying public, MacLean worked his way through the system. He first brought his concerns to his supervisor and then to the Department of Homeland Security’s inspector general. Each responded that nothing could be done.

After hitting a dead end, and hoping that public pressure might force the TSA to change its policy, MacLean talked anonymously to a reporter who broadcast a critical story. After 11 members of Congress pitched in, the TSA reversed itself. A year later, MacLean appeared on TV in disguise to criticize agency dress and boarding policies that he felt made it easier for passengers to recognize marshals who work undercover. (On your next flight keep an eye out for the young man in khakis with a fanny pack and a large watch, often wearing a baseball cap and eyeing boarders from a first class seat.) This time the TSA recognized MacLean’s voice and discovered that he had also released the unclassified 2003 text message. He was fired in April 2006.

When MacLean contested his dismissal through internal government channels, he discovered that, months after firing him, the TSA had retroactively classified the text message he had leaked. Leaking classified documents is more than cause enough to fire a federal worker, and that might have been the end of it. MacLean, however, was no typical cubicle-dwelling federal employee. An Air Force veteran, he asserted his status as a protected whistleblower and has spent the last seven years marching through the system trying to get his job back.

How Everything in Government Became Classified

The text message MacLean leaked was retroactively classified as “security sensitive information” (SSI), a designation that had been around for years but whose usage the TSA only codified via memo in November 2003. When it comes to made-up classifications, that agency’s set of them proved to be only one of 28 known versions that now exist within the government bureaucracy. In truth, no one is sure how many varieties of pseudo-classifications even exist under those multiple policies, or how many documents they cover as there are no established reporting requirements.

By law there are officially only three levels of governmental classification: confidential, secret, and top secret. Other indicators, such as NOFORN and ORCON, seen for instance on some of the NSA documents Edward Snowden released, are called “handling instructions,” although they, too, function as unofficial categories of classification. Each of the three levels of official classification has its own formal definition and criteria for use. It is theoretically possible to question the level of classification of a document. However much they may be ignored, there are standards for their declassification and various supervisors can also shift levels of classification as a final report, memo, or briefing takes shape. The system is designed, at least in theory and occasionally in practice, to have some modicum of accountability and reviewability.

The government’s post-9/11 desire to classify more and more information ran head on into the limits of classification as enacted by Congress. The response by various agencies was to invent a proliferation of designations like SSI that would sweep unclassified information under the umbrella of classification and confer on ever more unclassified information a (sort of) classified status. In the case of the TSA, the agency even admits on its own website that a document with an SSI stamp is unclassified, but prohibits its disclosure anyway.

Imagine the equivalent at home: you arbitrarily establish a classification called Spouse Sensitive Information that prohibits your partner from seeing the family bank statements. And if all this is starting to make no sense, then you can better understand the topsy-turvy world Robert MacLean found himself in.

MacLean Wins a Battle in Court

In 2013, after a long series of civil service and legal wrangles, the United States Court of Appeals for the Federal Circuit handed down a decision confirming the government’s right to retroactively classify information. This may make some sense–if you squint hard enough from a Washington perspective. Imagine a piece of innocuous information already released that later takes on national security significance. A retroactive classification can’t get the toothpaste back in the tube, but bureaucratically speaking it would at least prevent more toothpaste from being squeezed out. The same ruling, of course, could also be misused to ensnare someone like MacLean who shared unclassified information.

The court also decided that, retrospective classification or not, MacLean was indeed entitled to protection under the Whistleblower Protection Act of 1989. That act generally limits its protections to “disclosures not specifically prohibited by law,” typically held to mean unclassified material. This, the court insisted, was the category MacLean fit into and so could not be fired. The court avoided the question of whether or not someone could be fired for disclosing retroactively classified information and focused on whether a made-up category like SSI was “classified” at all.

The court affirmed that laws passed by Congress creating formal classifications like “top secret” trump regulations made up by executive branch bureaucrats. In other words, as the Constitution intended, the legislative branch makes the laws and serves as a check and balance on the executive branch. Congress says what is classified and that say-so cannot be modified via an executive branch memo. One of MacLean’s lawyers hailed the court’s decision as restoring “enforceability for the Whistleblower Protection Act’s public free speech rights. It ruled that only Congress has the authority to remove whistleblower rights. Agency-imposed restraints are not relevant for whistleblower protection rights.”

The ruling made it clear that the TSA had fired MacLean in retaliation for a legally protected act of whistleblowing. He should have been offered his job back the next day.

Not a Happy Ending But a Sad New Beginning

No such luck. Instead, on January 27, 2014, the Department of Justice petitioned the Supreme Court to overturn the lower court’s decision. If it has its way, the next time a troublesome whistleblower emerges, the executive need only retroactively slap a non-reviewable pseudo-classification on whatever information has been revealed and fire the employee. The department is, then, asking the Supreme Court to grant the executive branch the practical power to decide whether or not a whistleblower is entitled to legal protection. The chilling effect is obvious.

In addition, the mere fact that the DOJ is seeking to bring the case via a petition is significant. Such petitions, called writs of certiorari, or certs, ask that the Supreme Court overturn a lower court’s decision. Through the cert process, the court sets its own agenda. Some 10,000 certs are submitted in a typical year. Most lack merit and are quickly set aside without comment. Typically, fewer than 100 of those 10,000 are chosen to move forward for a possibly precedent-setting decision. However, only a tiny number of all the certs filed are initiated by the government; on average, just 15 in a Supreme Court term.

It’s undoubtedly a measure of the importance the Obama administration gives to preserving secrecy above all else that it has chosen to take such an aggressive stance against MacLean—especially given the desperately low odds of success. It will be several months before we know whether the court will hear the case.

This Is War

MacLean is simply trying to get his old air marshal job back by proving he was wrongly fired for an act of whistleblowing. For the rest of us, however, this is about much more than where MacLean goes to work.

The Obama administration’s attacks on whistleblowers are well documented. It has charged more of them—seven—under the Espionage Act than all past presidencies combined. In addition, it recently pressured State Department whistleblower Stephen Kim into a guilty plea (in return for a lighter sentence) by threatening him with the full force of that act. His case was even more controversial because the FBI named Fox News’s James Rosen as a co-conspirator for receiving information from Kim as part of his job as a journalist. None of this is accidental, coincidental, or haphazard. It’s a pattern. And it’s meant to be. This is war.

MacLean’s case is one more battle in that war. By taking the extraordinary step of going to the Supreme Court, the executive branch wants, by fiat, to be able to turn an unclassified but embarrassing disclosure today into a prohibited act tomorrow, and then use that to get rid of an employee. They are, in essence, putting whistleblowers in the untenable position of having to predict the future. The intent is clearly to silence them before they speak on the theory that the easiest leak to stop is the one that never happens. A frightened, cowed workforce is likely to be one result; another–falling into the category of unintended consequences–might be to force more potential whistleblowers to take the Manning/Snowden path.

The case against MacLean also represents an attempt to broaden executive power in another way. At the moment, only Congress can “prohibit actions under the law,” something unique to it under the Constitution. In its case against MacLean, the Justice Department seeks to establish the right of the executive and its agencies to create their own pseudo-categories of classification that can be used to prohibit actions not otherwise prohibited by law. In other words, it wants to trump Congress. Regulation made by memo would then stand above the law in prosecuting–or effectively persecuting–whistleblowers. A person of conscience like MacLean could be run out of his job by a memo.

In seeking to claim more power over whistleblowers, the executive also seeks to overturn another principle of law that goes by the term ex post facto. Laws are implemented on a certain day and at a certain time. Long-held practice says that one cannot be punished later for an act that was legal when it happened. Indeed, ex post facto criminal laws are expressly forbidden by the Constitution. This prohibition was written in direct response to the injustices of British rule at a time when Parliamentary laws could indeed criminalize actions retrospectively. While some leeway exists today in the US for ex post facto actions in civil cases and when it comes to sex crimes against children, the issue as it affects whistleblowers brushes heavily against the Constitution and, in a broader sense, against what is right and necessary in a democracy.

When a government is of, by, and for the people, when an educated citizenry (in Thomas Jefferson’s words) is essential to a democracy, it is imperative that we all know what the government does in our name. How else can we determine how to vote, who to support, or what to oppose? Whistleblowers play a crucial role in this process. When the government willfully seeks to conceal its actions, someone is required to step up and act with courage and selflessness.

That our current government has been willing to fight for more than seven years–maybe all the way to the Supreme Court–to weaken legal whistleblowing protections tells a tale of our times. That it seeks to silence whistleblowers at a moment when their disclosures are just beginning to reveal the scope of our unconstitutional national security state is cause for great concern. That the government demands whistleblowers work within the system and then seeks to modify that same system to thwart them goes beyond hypocrisy.

This is the very definition of post-Constitutional America where legality and illegality blur–and always in the government’s favor; where the founding principles of our nation only apply when, as, and if the executive sees fit. The devil is indeed in the details.

Peter Van Buren blew the whistle on State Department waste and mismanagement in Iraq in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A TomDispatch regular, he writes about current events at his blog, We Meant Well. His next book, Ghosts of Tom Joad: A Story of the #99Percent, will be available in April. To stay on top of important articles like these, sign up to receive the latest updates from TomDispatch.com here.

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The War on Whistleblowers May Have a "Chilling Effect on Future Acts of Conscience"

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