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Nederlog

October 9, 2015
Crisis: Bulk Surveillance, US Unsafe, French Intellectuals, US Firms, TTP Text
 "They who can give up essential 
   liberty to obtain a little temporary
   safety, deserve neither liberty
   nor safety."
 
   -- Benjamin Franklin
   "All governments lie and nothing
   they say should be believed.
"
   -- I.F. Stone
   "Power tends to corrupt, and   
   absolute power corrupts
   absolutely. Great men are        
   almost always bad men."
   -- Lord Acton















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Sections
Introduction

1.
Government Likens Ending Bulk Surveillance to Opening
     Prison Gates

2. Top European Court Rules That NSA Spying Makes U.S.
     Unsafe For Data

3. Right-wing 'new reactionaries' stir up trouble among
     French intellectuals

4. Large U.S. Firms Hold $2.1 Trillion Overseas to Dodge
     Taxes

5. After Years of Backroom Secrecy, Public Will Finally Get
     to See Full TPP Text


This is a Nederlog of Friday, October 9, 2015.

This is a crisis blog. There are 5 items with 5 dotted links: Item 1 is about the effective refusal of the American government to stop doing bulk surveillance; item 2 is about the decision of the European Court of Justice (I have treated this before, but this is a good article); item 3 is about France and French "public intellectuals" (in whom I happen to disbelieve since the 1960ies: they are careerists much more than honest, forthright or - rationally - intellectual); item 4 is about the very many billions of dollars that 3 out of 4 of the biggest US firms keep from the American taxes; and item 5 is about the TTP text: it willl be published (but no emendations by the Senate are possible!) "real soon now".

1. Government Likens Ending Bulk Surveillance to Opening Prison Gates

The first item today is an article by Jenna McLaughlin on The Intercept:

This starts as follows:

A Justice Department prosecutor said Thursday that ordering the immediate end of bulk surveillance of millions of Americans’ phone records would be as hasty as suddenly letting criminals out of prison.

“Public safety should be taken into consideration,” argued DOJ attorney Julia Berman, noting that in a 2011 Supreme Court ruling on prison overcrowding, the state of California was given two years to find a solution and relocate prisoners.

By comparison, she suggested, the six months Congress granted to the National Security Agency to stop indiscriminately collecting data on American phone calls was minimal.

Ending the bulk collection program even a few weeks before the current November 29 deadline would be an imminent risk to national security because it would create a dangerous “intelligence gap” during a period rife with fears of homegrown terrorism, she said.

I am a bit amazed that the US government's spokesperson didn't say "terrorist(s)" instead of or before "criminals". For clearly Ms Berman believes there are two or possibly three kinds of persons in the current USA:

Her own kind of supermen and superwomen, who work for the government and are and should be able to collect and see all private information of anyone; the kind of dumb Republican assholes who applauds this; and the near terrorists who say this is not democracy, nor democratic law, nor moral, but is in fact an extremely massive power grab by the first kind of supermen and superwomen (German: "Übermensche") to provide the government with all the information they can steal on anybody American.

Then again, I am only a bit amazed, for I have learned there is hardly anything different to be expected from Obama's government.

And incidentally: When Berman said
“Public safety should be taken into consideration" she was both right and lying:

She was lying because there is no evidence that the safety of the public was in any way helped by the collection of everyone's e-mails, but she is right public safety was very much endangered by the collection of everybody's private mails and phone conversations, although undoubtedly she did not mean the last interpretation of her words.

Here is some more on the court case (that is still going on):

The bulk telephony metadata program, which the NSA said was authorized under section 215 of the USA Patriot Act, was closed down by Congress in June with the passage of new legislation—the USA Freedom Act. However, the new bill allowed for a grace period of six months in which the government could set up a less all-inclusive alternative..

Klayman, an idiosyncratic plaintiff with a history of accusing the government of lying, seemed a bit unsure about specifically what relief he sought at the Thursday hearing.

But he argued that the transition period granted to the NSA was too long. “One day of constitutional violation is one day too much,” he said in his opening remarks.

I do not know anything about Klayman, but I think he is right when he accuses the government of lying, and he also is right that each "day of constitutional violation is one day too much", for each day this continues the NSA can grab of the private e-mails and phone conversations of over 300 million Americans is a very major breach of trust and confidence.

There is also this, which shows that Judge Leon saw things right, and that I was right in saying Berman's claims are wholly without any evidence:

When Berman made her analogy to releasing prisoners en masse, Leon responded: “That’s really a very different kind of situation, don’t you think?”.

And Berman was unable to cite any evidence that the bulk collection prevented any sort of terrorist attack, or that ending it now would be a serious threat.

“That’s a problem I had before—wonderful high lofty expressions, general vague terms…but [the government] did not share a single example,” Leon said.

Yes indeed.

2. Top European Court Rules That NSA Spying Makes U.S. Unsafe For Data

The next article today is also by Jenna McLaughlin on The Intercept, and a few days old, but I review it here because it is a good article:
This starts as follows:

The European Union no longer considers the United States a “safe harbor” for data because the National Security Agency surveillance exposed by whistleblower Edward Snowden “enables interference, by United States public authorities, with the fundamental rights of persons.”

The EU’s highest court, the Court of Justice, declared on Tuesday that an international commercial data-sharing agreement allowing U.S. companies free-flowing access to large amounts of European citizens’ data was no longer valid.

As Snowden revealed in 2013, the NSA has been interpreting section 702 of the Foreign Intelligence Surveillance Act as giving it license to intercept Internet and telephone communications in and out of the U.S. on a massive scale. That is known as “Upstream” collection. The NSA is not required to demonstrate probable cause of a crime before a court or judge before examining the data. Another 702 program, called PRISM, explicitly collects communications of “targeted individuals” from providers such as Facebook, Yahoo and Skype.

Incidentally: That "[t]he NSA is not required to demonstrate probable cause of a crime before a court or judge before examining the data" is in flat and total  contradiction with the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
-- Fourth Amendment to the US Constitution
For clearly (1) according to the Fourth Amendment any gathering of data is illegal ("shall not be violated") without a prior "probable cause", while also (2)
"before examining the data" seems a false trick that insists the data are examined only if read by human eyes, whereas these human eyes only read what their software - which has read the data, and searched for specific strings - presents to them.

There is also this clarification of the European Court of Justice's verdict:

On September 23, the Court of Justice’s top legal adviser, Yves Bot, concluded that the safe harbor agreement was invalid because of U.S. surveillance. “It is apparent from the findings of the High Court of Ireland and of the Commission itself that the law and practice of the United States allow the large-scale collection of the personal data of citizens of the EU which is transferred, without those citizens benefiting from effective judicial protection,” Bot wrote. “Interference with fundamental rights is contrary to the principle of proportionality, in particular because the surveillance carried out by the United States intelligence services is mass, indiscriminate surveillance.”
I agree, but I add that I am not merely not "benefiting": I am, in principle at least, harmed by the theft of my private mails. [1]

Finally, there is this on the implications of the European decision:

“The European decision is one of the best ones we’ve seen come out of Snowden revelations,” says Tiffiny Cheng, co-founder of the online advocacy group, Fight for the Future. “It is an actual conversation on the responsibility of companies and government to protect data they hold.”

The ruling was seen as posing a major obstacle for U.S.-based technology companies like Facebook, Google and Yahoo, whose business models require moving massive amounts of data back and forth between the U.S. and Europe.

What’s not yet clear is what they can do about it.

Sen. Ron Wyden, D-Ore., had a suggestion: reform U.S. surveillance law.

Clearly, Wyden's suggestion is very sensible (but I don't think it will be heeded).

3. Right-wing 'new reactionaries' stir up trouble among French intellectuals

The next article today is by Angelique Chrisafis on The Guardian:

This starts as follows:

From Emile Zola’s J’accuse to Jean-Paul Sartre’s Left Bank politics, France is credited with inventing the figure of the public intellectual: the writer as a spiritual guide for society.

But the nation whose vast scope of thinkers has ranged from Enlightenment heroes to Bernard-Henri Lévy, in his white shirt unbuttoned to the navel, has been plunged into a moral crisis over the dominance of a controversial new type of talking head: the reactionary, right-wing TV intellectual.

A group of media-savvy French intellectuals, deemed the “new reactionaries” for their political views and cultural conservatism, are at the centre of a furious row, accused of being a dangerous threat to France by stoking racism, intolerance and a fear of immigration.

I should first admit that, while I do not know enough of Zola (who did behave quite honorably in the case Dreyfus) to pronounce confidently on him, also because I do not know much about France of ca. 1900, I know enough about
Sartre and De Beauvoir - see e.g. my "The exemplary Sartre and De Beauvoir" of December 2012 [2] -  and about quite a few other French "leftist public intellectuals" to say that I do not believe in them since the late 1960ies.

There are two basic reasons for this (next to the fact that I did read Sartre, De Beauvoir and others, and also was twice in France in 1968, to witness the failed revolt or revolution of May-June):

The first is mostly personal: I had from the beginning very little in common with
the French leftist public intellectuals that were popular in the late 1960ies, because while most of them said they were philosophers, there was hardly anything in their philosophies that I agreed to. I never saw much in French (or German) existentialism, and "the marxists" struck me immediately as poseurs
compared to my - revolutionary, communist, proletarian - father, rather than as
genuine revolutionaries like my father undoubtedly was, from 1935 till his death in 1980. [3]

The second is also in part personal and is mostly related to the fact that I had genuine revolutionary parents (which very few have), and had a father and grandfather who were convicted to German concentration camp imprisonment, as "political terrorists" by the Nazis (which again very few have), and this made me realize very rapidly that I found it quite difficult to treat the French academically employed philosophers seriously. They seemed far too careerist and far too much
interested in their own personal standing and status to take them seriously. [4]

To return to the article: Therefore, I am not at all amazed to see the present generation of French public intellectuals pursue their careers by this time posing
for the right rather than the left:

Dominating the covers of magazines and newspapers this month, winning large ratings on prime-time TV and topping bestseller lists, the diverse band of thinkers and pundits argue that they are the only ones brave enough to challenge political correctness and defend the ideas of national identity by highlighting the dangers of immigration and the fears of “ethnic French” people, who no longer feel at home with so many foreigners. Their detractors warn they are fuelling a dangerous atmosphere harking back to the extreme rightwing ideas of France in the 1930s.

There is more in the article, which I will leave to your interests. I will quote the ending though, because this gives an opinion by Régis Debray, whom I also do not admire, but who said something sensible: 

The philosopher, Régis Debray, when asked this week about the row over rightwing thinkers, said: “Politics has been emptied of all intellectual and moral content so it’s normal that intellectuals fill that gap.”

But he warned people not to lash out so harshly, quoting the French writer George Bernanos: “The intellectual is so often an imbecile that we should always take him for one until he proves the contrary.”

Quite so, though it is in fact a great pity that so many of the modern intellectuals are hardly better than imbeciles.

4. Large U.S. Firms Hold $2.1 Trillion Overseas to Dodge Taxes

The next article today is by Roisin Davies on Truthdig:
This starts as follows:

The 500 largest U.S. companies would owe an estimated $620 billion in U.S. taxes were it not for the more than $2.1 trillion in offshore cash that most of the firms hold in foreign tax havens, according to a report released this week.

The study, by Citizens for Tax Justice and the U.S. Public Interest Research Group Education Fund, found that almost three-quarters of the firms on the Fortune 500 list of biggest American companies by gross revenue operate tax haven subsidiaries in countries such as Bermuda, Ireland, Luxembourg and the Netherlands.

To obtain these figures, the study used the companies’ own financial filings with the Securities and Exchange Commission.

I say: 3 out of 4 of the largest 500 U.S. companies engage in what in many
other countries is regarded, both legally and morally, as tax fraud. Indeed, the legal and moral argument is the same: If your company has its head quarters in
a nation, it ought to pay tax to that nation. But not anymore in the US: There
you don't pay tax, and save the extra profits outside the US.

And it is not miraculous that the late but not so great Steve Jobs's firm (I am sorry, but the real genius of Apple was not its salesman but its engineer, Steve Wozniak) outdoes all the other US companies:

Technology firm Apple was holding $181.1 billion offshore, more than any other U.S. company, and would owe an estimated $59.2 billion in U.S. taxes if it tried to bring the money back to the United States from its three overseas tax havens, the study said.

The conglomerate General Electric has booked $119 billion offshore in 18 tax havens, software firm Microsoft is holding $108.3 billion in five tax haven subsidiaries and drug company Pfizer is holding $74 billion in 151 subsidiaries, the study said.

“At least 358 companies, nearly 72 percent of the Fortune 500, operate subsidiaries in tax haven jurisdictions as of the end of 2014,” the study said. “All told these 358 companies maintain at least 7,622 tax haven subsidiaries.”

Fortune 500 companies hold more than $2.1 trillion in accumulated profits offshore to avoid taxes, with just 30 of the firms accounting for $1.4 trillion of that amount, or 65 percent, the study found.

Fifty-seven of the companies disclosed that they would expect to pay a combined $184.4 billion in additional U.S. taxes if their profits were not held offshore. Their filings indicated they were paying about 6 percent in taxes overseas, compared to a 35 percent U.S. corporate tax rate, it said.

To me it shows that 75% of the biggest US firms behave as criminals and also quite anti-American. And it's not that they can't pay it: They don't want to.

5. After Years of Backroom Secrecy, Public Will Finally Get to See Full TPP Text

The final article today is by Deirdre Fulton on Common Dreams:
This starts as follows:

After being shrouded in secrecy for years, the full contents of the 12-nation Trans Pacific Partnership (TPP) will soon be brought into the sunlight.

According to Kevin Collier at Daily Dot, U.S. Trade Representative Michael Froman has said the text will be made available to the public at large in approximately 30 days—on or around November 7. 

"[We] look forward to having it released as soon as possible," Froman said in a press call Wednesday that was embargoed until Thursday morning. "We're shooting to do it within the 30 days following the completion of the negotiations."

Under the terms of the Fast Track legislation passed earlier this year, lawmakers will not be able to amend or filibuster the pro-corporate "trade" deal that was completed this week.

President Barack Obama must wait at least 90 days after formally notifying Congress of the deal before he can sign it and send it to Capitol Hill, and the full text of the agreement must be made public for at least 60 of those days. Congress gets to spend the first 30 days of that time privately reviewing the documents and consulting with the administration.

I say. Note the - rationally speaking quite incredible - fact that "lawmakers will not be able to amend or filibuster the pro-corporate "trade" deal", which is to say that the lawmakers ceased to be lawmakers, in effect.

Also, it seems quite likely to me that the TPP will be much too bulky and much too legalistic to be read by most Congressmen within 30 days. (But we will see.)
Public Citizen's Lori Wallach has pointed out (pdf) that 2016 election politics may imperil the deal. "The intense national battle over trade authority was just a preview of the massive opposition the TPP will face given that Democratic and GOP members of Congress and the public soon will be able to see the specific TPP terms that threaten their interests," she said (pdf) on Monday.
Well... yes and no. Yes, I agree in priniple, but I doubt that the main media will pay much attention to it, which means that most Americans will miss it.

---------------------------------------------
Notes

[1] Not because I am a terrorist (I am not, also not in my private mails) but because (i) I am an intellectual and moral radical, and always was, with (ii) communist parents and (iii) communist and anarchist grandparents. I do not know what the American secret services make of this, except that it probably will be little good, and will be mostly based on misunderstanding of me and also of my parents and grandparents. (Then again, I am meanwhile 65, although I neither look like it nor feel like it, and I certainly lived most of my life, so I don't worry. But it would be at least a bit different if I were 35 now. I don't know what 2045 will bring, and I very probably won't make it, but I am not optimistic.)

[2] Incidentally, this whole essay is rather good and rather clear, and part 1 gives a rather good account of my communist youth, when I did read a decent amount of Sartre, and wasn't impressed at all by his philosophy.

[3] This really is personal, simply because I do have rather extra-ordinary parents (though both died in the previous century). But indeed one of the things that I did learn in Paris, in May 1968, is how much more genuine my - also very courageous - father was than all the "public intellectuals" and "student leaders" I saw, even though my father was not an intellectual, and I also disagreed with him about communism. (Also, very few were in a position to learn such a thing, but I was, and I did.)

[4] I think the facts since then bear me out quite well. And besides, I did not know this in the 1960ies, since I read it only in the 1980ies or 1990ies, but Raymond Aron's "L'opium des intellectuels" (I read it in French) was a really well done rational attack on Marxism.

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