The Shoes Keep on Dropping…What Next?: On Civil Liberties, Privacy, and HIPAA in the USA

“The personal is political” is a guide to personal behavior that Ms. Hanisch brought to people’s conscious awareness in her essay of the same name. Her intent was remind us that you can’t separate your inner beliefs from your public or private behavior – if you espouse freedom for all but beat your wife or girlfriend, that contradiction renders your efforts on behalf of others meaningless. If your government espouses freedom for all but abuses citizens of its own as well other countries, its pronouncements are pure propaganda. Your principal task then becomes to resolve that contradiction and, as best you can, align your personal with your public or political behavior. In the U.S. of A., that concern from the ‘70’s has come full circle.

This article seeks to help readers make the connection between the public and secret behaviors of the U.S. government as it continues to oppress those individuals within its reach that occupy a politically marginalized status; including, of course, persons who are survivors and/or users of psychiatric services. Specifically, this article is about the shameful conduct of the U.S. government and the secrecy in which it engages to conceal its shame. The issues that will be discussed in it are iterations of several that I’ve written about over time, some quite recently – the National Security State (NSS) and its assaults on Americans’ civil liberties; hunger strikes; and torture. It’s not that I’ve been prescient; but when you grow up with the NSS and its overseer, the National Security Agency (NSA), and have borne witness firsthand to the evolving American empire, you develop a good feel for what’s bound to happen. Nothing – or very little – surprises you.

To begin with, none of this is new. All branches of the Federal Government have been complicit in the warrantless surveillance of U.S. residents since before World War II when FDR authorized wiretaps of individuals suspected of Nazi sympathies. With the passage of the National Security Act in 1952 and the establishment of the National Security Council, both of which I wrote about in my MIA post of April 29, it became standard government practice. Only the rudimentary technology of the time limited its scope. The practice itself and the secrecy surrounding it were rooted in fear – fear of Hitler; the Cold War fear of the Soviet Union and the bomb. Fear – now of terrorism and whatever other apprehension the government, particularly the executive, can stir up — continues as the principal determinant of 21st century government surveillance of its citizens. The new internet technology has expanded its reach beyond the imaginable; the secrecy in which it is embedded enables all those involved to deny its very existence; and the legislation passed by Congress to legitimize the surveillance always appears post facto, designed to bring extra-legal government practice within the purview of the law. As Noam Chomsky reminds us, “Governments should not have this capacity. But governments will use whatever technology is available to them to combat their primary enemy – which is their own population.”

The New York Times and the Washington Post began publishing articles about Bush, Jr.’s abuse of executive power in late 2005. Actually, Bush, abetted by Cheney and Rumsfeld, began warrantless interception of Americans’ voice and e-mail transmissions overseas immediately after 9/11. They termed their initiative the Terrorist Surveillance Program (TSP) and referenced Section 215 of the Patriot Act, which Bush signed into law in October, 2001, to authorize it. Secretly, of course. In response to the outcry from civil libertarians occasioned by the press revelations, Bush didn’t back down but upped the ante, starting the PRISM program in 2007, whose reach and secrecy Edward Snowden recently revealed in The Guardian. In contrast to the TSP, PRISM was enabled by the Protect America Act (PAA) of 2007, which placed it under the jurisdiction of the Foreign Intelligence Surveillance Court (FISC), itself established by the Foreign Intelligence Surveillance Act in 1978 to prevent a repetition of the warrantless domestic wiretapping conducted by Nixon and his subordinates. When the PAA expired in 2008, Congress rushed to keep PRISM lawful and passed the FISA Amendments ACT in 2008, whose Section 702 authorized warrantless surveillance of domestic voice and internet communications to other countries.

Despite Obama’s and various members’ of Congress recent protestations, one has to wonder whether the FISA Court has been rendered meaningless. To be sure, the president, members of his Cabinet and Diane Feinstein and Mike Rogers, chairpersons, respectively, of the Senate and House Intelligence Committees, to name just a few, knew of the scope of PRISM and its mission, viz., to access information carried by the key internet and wireless providers – including Microsoft, Apple, Facebook, Google, Yahoo, YouTube, Twitter, Paltalk, AOL and SKYPE and Verizon — without the need for an authorizing FISA Court warrant. Edward Snowden infuriated the NSA overseers of PRISM because he revealed its key secret, viz., the sheer number of domestic communications that the NSA was collecting for review. In the billions, or every single e-mail and ‘phone call made by ordinary Americans since at least 2007.

Most Americans appeared neither surprised nor immediately alarmed by this revelation. I know I wasn’t, most likely an indication of having become inured to the culture of fear and secrecy that I’ve written about. Again, like most Americans. Frankly, it’s hard to imagine any e-mail I’ve ever written containing anything of interest to the NSA/PRISM monitors. But who knows – since the selection process is super-secret – if that might change and when, and who of my friends, family members and colleagues might be affected in the future. The 4th Amendment, included in the Constitution to protect us from arbitrary government intrusions, appears poised to join the FISA Court as an obsolescent remnant of American democracy. As Daniel Ellsberg recently wrote in The Guardian, PRISM is reminiscent of the warrantless snooping that the NSA, the FBI and CIA carried out in the 50’s, 60’s and 70’s. FISA was enacted subsequent to the extensive Committee hearings chaired by Senator Frank Church in 1975-6 after Nixon’s 1974 resignation to correct those abuses and prevent their repetition. As per Ellsberg, Church issued this warning about the NSA and its minions:

“I know the capacity that is there to make tyranny total in America, and we must see to it that this agency [the NSA] and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.”

Unfortunately, FISA has been progressively undermined and its Court turned into a rubberstamp. Ellsberg and the ACLU are calling for the repeal of Section 215 of the Patriot Act, just renewed under Obama last year, and Section 702 of the FISA Amendments Act, both of which allow the NSA to use PRISM to collect domestic wireless and internet data without securing a FISA Court warrant. Obama, Congressional leaders and the head of the NSA, General Keith Alexander, claim that the FISA safeguards really do work and that changes to the current national security laws are not necessary. I’m not sure that any of us believe them. We should be afraid.

Once you’ve started abusing the power you’ve arrogated to yourself, it’s hard to stop. Even before Obama failed to get new gun control legislation through Congress, he began issuing a series of twenty-three executive orders to oblige the States to report more consistently and comprehensively to the National Instant Criminal Background Check System (NICS), the Federal government’s de facto gun control registry. One apparent impediment to the reporting process was the reluctance of some reporters in HIPAA-protected entities – hospitals, clinics, private practices – to report individuals who met NICS criteria for “mental health prohibitors.” They feared they would be violating the HIPAA privacy rule.

HIPAA, for those of you who are bureaucratic acronym-challenged, represents the Health Insurance Portability and Accountability Act. It is overseen and administered by the U.S. Department of Health and Human Services (HHS). One of its several alleged objectives is to keep our personal health information private, i.e., inaccessible to others without our expressed and signed consent. There are, of course, exceptions, particularly as regards the criminal justice system.

“Mental health prohibitors” are those that render identified individuals as ineligible to purchase guns. They include the following:

• Involuntary commitment to a psychiatric hospital;
• Danger to self or others;
• Incompetent to stand trial;
• Not guilty by reason of insanity;
• Lacking capacity to manage their own affairs.

Katherine Sibelius, Secretary of HHS, complying with Obama’s Executive Order, announced that, in the face of health providers’ inhibitions, the Privacy Rule would be amended to allow them to report to the NICS database any individual who met one or more of the “prohibitors.” Since this rule-change would affect the civil rights of those individuals being treated in HIPAA-protected venues, the final decision on its legality or conformity with HIPAA’s intent will be made by HHS’s Office of Civil Rights. Towards which end, interested individuals were invited to submit comments pro or con. In short, all the legal niceties are being observed.

I became aware of this via an e-mail alarm raised by the Bazelon Center for Mental Health, which protested the necessity of the rule change, noting that Congress saw no need to change the HIPAA Privacy Rule when it amended the NICS reporting system in 2008. Bazelon also cited data in the Federal Register, where the proposed rule change was first announced on April 23, which depicted the great bulk of NICS registry data for all individuals, including that related to the “mental health prohibitors”, as coming from the criminal justice system and the civil courts, which are not HIPAA-covered. Despite the registration of 2.7 million new records by February, 2013, most of the reporting had come from only 12 states, with only a small proportion involving individuals subject to mental health prohibitors. Hence the rationale for the rule change, rooted in the unsupported notion that persons deemed crazy are the most dangerous of all.

Despite evidence to the contrary, the ubiquity of that belief persists. Just read the follow-up accounts of this month’s Santa Monica shootings, where six persons were killed by 23 year old John Zawahri, wielding an AR-15, the same type weapon used in the Aurora shootings. Interestingly, these shootings didn’t command the national spotlight in the same manner as those in Aurora and Newtown. Media ennui? Not enough gore? Shooter not crazy enough? Just as well. In any event, the local Santa Monica press and the L.A. Times have depicted him as a disturbed young man, who experienced a short hospitalization at UCLA’s Neuropsychiatric Hospital in 2006 after being discovered internet-surfing for guns by a teacher at the “alternative” high school he was then attending. In retrospect, everyone familiar with that incident expressed surprise that Mr. Zawahri wasn’t “kept” by the hospital for a longer stay. The media also noted his upset at the marital conflict in his parents’ home, where he lived, and their plans to divorce. He would not have been reported to NICS back in 2006 – now presumably he would be. But would it have made a difference?

I joined Bazelon in protesting the HIPAA privacy rule change, sending an e-mail chastising both Sibelius and Obama for what I regard as shameful behavior. Easy to hassle politically powerless folks while letting the NRA off the hook. But don’t rest too easy. I can assure you that all of us not affected by this decision, who are equally politically powerless or just too trusting, are next on the list. As for the current planned transgression of the law, I don’t believe HHS has made a final decision yet, but I suspect the fix is in.

Episode number three in my list of imperial shame is the hunger strike and forced feeding of the hunger strikers at Guantanamo, our domestic Abu Ghraib. The Guantanamo prison was opened in 2002 by the Bush Administration to house suspected terrorists. In order to keep secret whatever might be happening there, the Federal Government created what critics termed a “legal black hole.” Guantanamo detainees were charged with no specific crimes and were denied access to legal counsel. Congress blocked trials and hearings in mainland civil courts; and the detainees found themselves with no legal standing, a position unhappily familiar to persons who consider themselves survivors and/or users of psychiatry, the very same individuals singled out as satisfying the requirements for the NICS “mental health prohibitors.”

In February of this year, in an apparent effort to exercise some control over their fate, detainees began a hunger strike. At present, 130 of the 166 Guantanamo inmates are participating in the strike. I first wrote about the long and honorable tradition of hunger strikes in an article I posted on MIA last September commemorating the MFI-sponsored hunger strike conducted in 2003 in Pasadena by six individuals from different parts of the country. They fasted for 23 days and garnered a fair amount of media attention as they engaged in debate the American Psychiatric Association, NAMI and the U.S. Surgeon General over the validity of the biomedical model and the use of psychoactive medications. I’m sure some of the Guantanamo detainees must have known about the hunger strike waged last year by 2000 Palestinians held in Israeli prisons in similar circumstances, and about the hunger strike conducted by IRA members in Northern Ireland’s Maze Prison in 1981, which saw ten members of the group, led by Bobby Sands, starve themselves to death. Notably, the Thatcher Administration made no effort to force-feed the hunger strikers, a practice that fell into disrepute after the death in 1974 from force-feeding suffered by Michael Gaughan, another IRA hunger striker. Indeed, the following year, the World Medical Organization condemned forced-feeding as “torturous and degrading.”

Obama and his surrogates either didn’t know their history when they decided to force-feed the Guantanamo hunger strikers, or, what is more likely, they have fully subscribed to the culture of cruelty implanted in Guantanamo by the prison’s founders, the Cheney/Bush/Rumsfeld triumvirate. As of June 22, 44 of the hunger strikers were being subjected to force-feeding, which is far from a benign process – metal tipped tubes are inserted through a person’s nostrils, then his throat and into his stomach, down which an Ensure-type slurry is poured. One released detainee who had been force-fed claimed the process invariably induces nausea and vomiting.

Obama has been quoted as saying he doesn’t want the hunger strikers to die. He and the military authorities who administer the prison have equated the hunger strike with a mass suicide attempt, refusing to acknowledge it as an act of desperation and courage by men who appear to believe they have nothing to lose, who appear to fear that they will rot in Guantanamo, never to have their freedom again. The media and the medical profession have begun to pay attention. Obama has countered with more promises to close Guantanamo.

On June 12, Drs. Annas, Crosby and Glantz published in the New England Journal of Medicine an article entitled “Guantanamo Bay: A Medical Ethics-free Zone?” After citing the World Medical Organization’s stricture against force-feeding as a form of torture and the threat it represented to hunger strikers’ well-being, the authors expressed concern that the military physicians who were administering the forced-feeding, all of whom were young and just out of their residency programs, were being coerced by the military chain of command into violating their Hippocratic oaths. They urged as the most forthright solution that the forced-feeding be ended. The Obama administration and the Department of Defense, which has oversight of Guantanamo, rejected that suggestion and denied that the Guantanamo docs had voiced ethically-based objections to what they were doing. Point counter-point, 150 physicians and medical personnel, private citizens all, have volunteered to go to Guantanamo and treat the hunger strikers, who they claim no longer trust their Guantanamo prison physicians. Their offer of help has so far been refused.

So what can we, ordinary folks of no particular influence or flair, do to put a check on a government and administration that appear willing to ride roughshod over the ordinary folks they purport to represent? To paraphrase Noam Chomsky’s earlier quote, “They have seen the enemy and he is us.” Remember that while many folks appear apathetic or indifferent to the government’s abuses of power, many of us are riled and ready. The lead organization at the moment for the NSA-related issues is the ACLU, which seems poised to challenge the sections of the Patriot Act and FISA Amendments Act that allow warrantless snooping of domestic e-mail and voice communications as 4th Amendment violations. At the very least, plug into the ACLU atwww.aclu.org, keep abreast of what it’s doing and pick an area that you can spend time and energy on. And pay attention to the news that gets trumpeted about regarding Edward Snowden and Julian Assange and their maneuvers to avoid apprehension by the U.S. and international police authorities.

Bazelon Mental Health Law Center, at www.bazelon.org, will be the best source to keep tabs on the HIPAA Privacy Rule change, if any; and Amnesty International and Human Rights Watch, among others, have been monitoring the Guantanamo hunger strike and the force-feeding of hunger strikers from day one. Plug into their respective websites — http://www.amnestyusa.org and http://www.hrw.org — and stay in their info loop. Finally, remember that advocates Tina Minkowitz, who also blogs on MIA, and Myra Kovary, both leaders of the Center for Human Rights for Users and Survivors of Psychiatry (CHRUSP – www.chrusp.org), and others continue to pursue ratification of the UN Convention on Rights for Persons with Disabilities (CRPD) but sansthe many Reservations/Understandings/Declarations (RUDs). The latter serve to undermine the ultimate intent of the Convention, which is to bring U.S. and State Laws into conformity with the Convention; which would spell the demise of all laws which allow for involuntary hospitalization and involuntary administration of psychoactive medications. The UN’s Special Rapporteur on Torture, it should be remembered, has declared all involuntary treatment or treatment without informed consent a form of torture.

In pursuit of this aim, Tina and Elena Kalitventsev have already been to Geneva in March and plan to return with other CHRUSP members in September to hold the U.S.’s feet to the fire over involuntary medication statutes. In the interim, CHRUSP sent a letter on June 11 to the Senate Foreign Relations Committee, the entity responsible to bring the CRPD to the Senate for a yay/nay vote. In last year’s Senate session, despite its several undermining RUD’s, the CRPD went down to defeat and it appears nowhere on the Committee’s agenda for Congress’s current session. The letter was sent to all members of the Foreign Relations Committee, signed by 20 organizations and 18 individuals from around the globe, requesting that the Committee bring the CRPD to the Senate floor without the RUD’s. The National Council on Disability recently joined CHRUSP in calling for the ratification of the Convention, but apparently saw nothing contradictory in passing the Convention replete with its RUD’s. CHRUSP suspects it is being cut off at the pass politically and is considering mounting a petition in support of its position.

At the least, it would be useful to log onto CHRUSP’s website and read the letter sent to the Foreign Relations Committee. Better still, consider sending a copy of the letter to your own Senator, asking her/him to support CRPD ratification without the RUD’s. Wow, that’s an alphabet soup for you. Just go on line here where you’ll be able to locate your Senator and her/his contact information. If you prefer Twitter, you can find an updated Twitter account list at here. Just attach a brief explanatory note along with the CHRUSP link to the letter. Finally, send CHRUSP some money, if you can, which will help them send their delegation back to Geneva come September. Just click on the “Donate” button half-way down the lefthand column on the home page.

As always, particularly in these troubling times, don’t mourn, organize. Remember what Eugene Debs told us nearly one hundred years ago while he was in prison for opposing U.S. involvement in World War I: “While there is a lower class, I am in it, while there is a criminal element, I am of it, and while there is a soul in prison, I am not free.” Finally, let me close by amending Jeremy Bentham’s opening aphorism above — “Secrecy is but another word for fear… and shame.”

References:

Annas, J.D., et al, “Guantanamo Bay: A Medical Ethics-free Zone?”, New England Journal of Medicine, June 12, 2013,

Baker, P. Sanger, D., “Obama Calls Surveillance Programs Legal and Limited”, The New York Times, June 7, 2013,

Bazelon Center for Mental Health Law, “HHS Proposal Would Diminish Privacy Protections”, June 4, 2013,

Carney, J., “The Culture of Fear and the Lost Art of Organizing for Social Changes“, Madinamerica.com, April 29, 2013

Carney, J., “Remembering the 2003 Fast For Freedom: Time for Another?”, Madinamerica.com, September 20, 2012

Chomsky, N., “NSA surveillance is an attack on American citizens, says Noam Chomsky”, The Guardian, June 19, 2013

Democracy Now, “A Medical Ethics-free Zone? Guantanamo Doctors Urged to Stop Force-Feeding Hunger-Striking Prisoners“, June 18, 2013

Electronic Frontier Foundation, Transparency Project, “Section 215 of the USA Patriot Act,”

Electronic Frontier Foundation, Surveillance Self-Defense, “Surveillance Under the Foreign Intelligence Surveillance Act (FISA),”

Ellsberg, D., “Edward Snowden: Saving Us From the United Stasi of America,” TheGuardian, June 10, 2013,

Federal Register, Proposed Rule by Health and Human Services Department (HHS), “HIPAA Privacy Rule and the National Instant Criminal Background Check System (NICS),” April 4, 2013,

Finn, P., “Guantanamo Bay Hunger Strike Grows; 41 Now Being Force-Fed,” The Washington Post, June 6, 2013,

Goodwin, L., “Doctors to Obama: Let Us Treat Guantanamo Detainees on Hunger Strike,” Yahoo! News, June 25, 2013,

Greenwald, G., “Secret FISA Court Allows NSA to Collect and Use Data Without a Warrant”, The Guardian, June 20, 2013,

Hertzberg, H., “Comment: Snoop Scoops”, The New Yorker, June 24, 2013

Hirsch, S., “Huge C.I.A. operation reported in U.S. against antiwar forces, other dissidents in Nixon years,” New York Times, 12/22/74

Katznelson, I., Fear Itself: The New deal and the Origins of Our Time, Liveright Publishing. New York, 2013

Lepore, J., “The Prism”, The New Yorker, June 24, 2013,

Lovett, I., “Police Call Santa Monica Gunman ‘Ready for Battle’”, New York Times, June 8, 2013,

MacAskill, E., “Edward Snowden: The Truth About U.S. Surveillance Will Emerge”, The Guardian, June 17, 2013,

Miller, I., “Force-feeding Guantanamo Detainees Is Unethical and Inhumane”, The Guardian, June 25, 2013,

Minkowitz, T., et al, “Letter to Members, Senate Committee on Foreign Relations, Center for Human Rights of Users and Survivors of Psychiatry“, June 11, 2013,

Steinhauer, J., “White House Moves to Bolster Gun Safety”, New York Times, June 12, 2013,

Tuck, M., “The Nixon Administration and Watergate”, The Open-Content Project.

Written By Jack Carney, DSW
Writer at Mad in America

Originally posted at: http://www.madinamerica.com/2013/07/the-shoes-keep-on-dropping-what-next/

Dr. Carney is a practicing social worker with 44 years of experience in the field, with thirty-five of those years spent in the public mental health system . He is an Alinsky-trained community organizer, Institute-trained in Bowen Family Systems theory, and trained in Linehan’s Dialectical Behavior Therapy. He received his MSW from UCLA in 1969 and his DSW from CUNY in 1991.  At present, his professional activities revolve around his private psychotherapy and consultation practice and to the blogs he regularly posts at www.madinamerica.com/author/jcarney. He also serves as the National Coordinator of Committee to Boycott the DSM-5, whose objective is to curtail the sales and the use of the American Psychiatric Association’s new Diagnostic and Statistical Manual. 

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