finem respice

Joint Media Special Operations

Submitted by ep on Sat, 07/24/2010 - 09:37
defenestration for fun and profit

Okaloosa County is almost as far west as you can go in Florida without crossing the Alabama state line. It is one of the most conservative counties in the country (tacking up nearly an 80% popular vote count for George W. Bush in 2004 and finding itself ranked 77th of 100 "most conservative-friendly counties" by the Daily Caller this year) and, not surprisingly, also home to Hurlburt Field (KHRT), which houses the Air Force Special Operations Command headquarters, the 505th Command and Control Wing of Air Combat Command and the 1st Special Operations Wing, among other units.

Perhaps more interestingly for instant purposes, the United States Air Force facility at Hurlburt also houses the Joint Special Operations University (hereinafter the "JSOU"), an institution with a mandate to:

...educate SOF executive, senior and intermediate leaders and selected other national and international security decision makers, both military and civilian, through teaching, outreach, and research in the science and art of joint special operations.

The JSOU also proudly:

...conducts research through its Strategic Studies Department where effort centers upon the USSOCOM mission and these operational priorities:
• Preempting global terrorist and CBRNE threats
• Enhancing homeland security
• Performing unconventional warfare and serving as a conventional force multiplier in conflict against state adversaries
• Conducting proactive stability operations
• Executing small-scale contingencies

So it may well be that, at least many years ago, one would have been surprised to read from a report above the JSOU's monogram that:

Some of the possible techniques we have explored in our discussion of the military use of blogging require a certain degree of subtlety, finesse, and yes, covert action. By giving military blog-based operations to the Intelligence and Special Operations communities, these uses become less risky and more feasible. However, military operations must necessarily remain only a part of a larger effort. Given the current state of U.S. and international law, and the distribution of the necessary authorities among many (often competing) government agencies, any future conduct of influence operations through the blogosphere will require a truly integrated interagency approach, and thus belongs properly at the national level as a part of an overarching Strategic Communications effort.1

No matter what the year, however, no one would be surprised to find Dr. Dorothy Denning's name in the credits. And somehow, at least today, the revelation that not just the intelligence community but also the special operations community is actively exploring the use of blogs as an intelligence source and a tool for covert operations elicits only yawns.

In this connection, it seems difficult to discount the role of desensitization via repetition when it comes to numbing the nerves of public outrage to the increasingly manipulative and partisan role played by the media (and finem respice readily includes in this calculus both new and old sects within the cult of the Fourth Estate).

Of the latest "scandal," that is the unveiling of a private group of more than four hundred apparently left-leaning (and so far almost universally caucasian and asian) journalists who, for three and a half years, discussed via email topics ranging from elections, to politics to the influence of the media and, yes, the coordination of media and public relations strategy to achieve common goals- most of which were highly political and/or partisan, the public reaction seems best characterized as: "Coordinated, left-leaning bias in the media? Duh. What rock have you been sleeping under for the last forty years?"

But, even as the hidden mass of public apathy is, iceberg like, slowly revealed from below the waterline, a number of slightly more subtle observations float gently to the surface here if one is patient enough to let the salty foam settle.

First, the American public has long known and accepted the fact that the Fourth Estate is, Lord Darlington like, by and large a liberal animal, shaped by a life experience never touched by want and a powerful naivete funded by the treasure of the dead, the taxed, or both. It is grand error to expend energy attempting to crystallize outrage among the public for revelations already long since priced in to the net present value of public consciousness. (Assertions that this figure approaches zero are beyond the scope of this piece).

Second, the only groups in denial with respect to these realities are:

The liberal political class, at once and paradoxically so unshakably certain of the superiority of their ideological and moral purity and so deeply insecure in their public position that even contemplating the possibility that blind, ideological conformity, rather than an appreciation of genius and merit, drives the support they enjoy from the Fourth Estate is cause for severe and panicked, even pathological psychological response. This is easily visible in the simply blatant projection that has emerged as the coping mechanism of choice for the likes of Hillary Clinton and the "vast right-wing conspiracy" that has presumably plagued her political career since Hillarycare, like one of the last Mitsubishi Zeroes, cobbled together from factory seconds and bailing wire, piloted by the last fourteen year old the Empire could find, stalled and plummeted into the sea.

The conservative parallel is clearly the bombastic, podium-pounding "family values" moralist who finally, in the close confines of a public restroom, solicits to engage (in exactly the sort of "morally bankrupt" sexual act he had for years decried) a plainclothes member of the local constabulary and registered Democrat.

And the Fourth Estate itself, an institution that has, to the very last, clung to the nebulous justification of "neutrality" in an existential defense of its waning relevancy.

Third, the confidence with which "Journolist" both conducted its affairs and ignored the most basic of operational security tenets. Given the rash of apologies, resignations, explanations and deflections that pour literally daily from exposed, former Journolist members, it seems clear that this confidence did not germinate from a clear sense of legitimacy. Indeed, rare is the "I have done nothing at all improper" defense among the fallen. Instead, the brazen and daring expectation that 400 members could keep the organization's goings on a secret indefinitely likely formed from the expectation that, given their self-perceived intellectual and tradecraft superiority, or the incompetence of their foes, capture was unthinkable.

Of course, being that the likelihood of a secret remaining one is proportional to the inverse of the square of the number of people who know about it, this was an impossible disequilibrium to maintain for long. Oddly, for a group so clearly aware of (and prone to manipulate) the nuances that lay between "on the record," "off the record," "on background," and so forth, there seems to have been a remarkable dearth of caution when committing to writing, in a forum openly archived, the various views and actions that now haunt them upon being made public.

How odd too, that to even be revealed as a member of this newly unveiled cabal would appear to be a highly career limiting event today.

One is given to wonder, however, if these are the limits of liability for the wayward soldiers of Journolist.

Forty years ago Public Law Number 91-452, 84 Stat. 941 (1970) was signed into force. For more than a decade it resided on the books, mostly unused, somewhat obscure and very ignored. By 1985, however, certain provisions of what is now 18 USC §§ 1961 et seq. (1996) had become, in the words of one court, " unusually potent weapon-- the equivalent of the thermonuclear device."2 What had been ushered into law as Title IX of the Organized Crime Control Act of 1970 quickly became known publicly as "RICO," short for the provisions of the legislation known as the Racketeer Influenced and Corrupt Organizations Act (hereinafter the "Act").

Clearly, the Act's provisions for civil recovery and (of course) the recovery of treble damages (the Act's siren song to the plaintiff's bar) drove its increasing use as a tool in civil litigation, as did its role as a new found plaintiff's gateway into federal court even without diversity, and the expansion to four years of many statute of limitations restrictions, but it was the wide flexibility in pleading the Act provides, furthered over the years by an expansionist evolution of the statute and most obviously marked by the Supreme Court's highly pro-plaintiff opinion in Sedima in 19853 that enabled its use in actions (some failed and some successful) as diverse as the recovery of misused campaign funds,4 the recovery of damages from an attorney whom permitted his client to pay legal bills with sexual favors,5 recovery for the economic harm caused by unwarranted damage to reputation6 and enjoining protest groups from demonstrating in front of abortion clinics.

Given these applications, might we not wonder after the relevancy of RICO in the instant case? Though a comprehensive review of the RICO statute (and particularly that body of its more contemporary case law that exists outside the author's umbra of expertise) is beyond the scope of this piece, projecting the contours of Journolist onto a RICO screen may prove instructive, even in the absence of a fine tuning focus knob.

The basic, almost haikuesque, elements of a RICO claim require the:

of an enterprise;
though a pattern;
of racketeering activity;

Having stated such a claim it then falls to the plaintiffs to show they have been injured by the conduct so described.

"of an enterprise," meaning "…any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity."

"through a pattern" simply means the commission of two or more acts of "racketeering activity" (as defined infra) after the Act became effective and within 10 years of one another. Effectively, however, as the sufficiency of this element is fact specific, the matter turns on the number and variety of acts of racketeering activity, the length of time over which they were committed, the number of victims, the presence of separate "schemes" and the occurrence of distinct injuries.7

"racketeering activity" is rather pedantically defined in the statute, to wit:

(A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery),


section 1341 (relating to mail fraud), section 1343 (relating to wire fraud),


section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of State or local law enforcement), section 1512 (relating to tampering with a witness, victim, or an informant), section 1513 (relating to retaliating against a witness, victim, or an informant),


section 1546 (relating to fraud and misuse of visas, permits, and other documents),


section 1951 (relating to interference with commerce, robbery, or extortion),


section 1954 (relating to unlawful welfare fund payments),


section 1956 (relating to the laundering of monetary instruments),


section 2319 (relating to criminal infringement of a copyright),


(E) any act which is indictable under the Currency and Foreign Transactions Reporting Act, (F) any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in and harboring certain aliens), section 277 (relating to aiding or assisting certain aliens to enter the United States), or section 278 (relating to importation of alien for immoral purpose) if the act indictable under such section of such Act was committed for the purpose of financial gain....
(much elided)

Of course mail and wire fraud are the "catch all" "predicate acts" that tend to underpin most RICO pleadings. "Fraud," tends to catch a number of observers unaware, being, as it is, a caustic, ugly word that does not readily lend itself to the surfaces of everyday activities to those not active at the plaintiff's bar. Be this as it may, the term is far more expansive than one might otherwise imagine. Judge Posner, writing for the majority in Emery v. American General Finance, Inc.8 waxed thusly:

...deliberate fraud… where in order to get money or something else of monetizable value from someone you make a statement to him that you know to be false, or a half truth that you know to be misleading, expecting him to act upon it to your benefit and his detriment.

So too has fraud been expanded to include the interference in a government process, specifically the approval of a new drug by the Food and Drug Administration, for example.9

Likewise, the term "extortion" often carries with it rather restrictive images of Sal and Lucky holding a gun to Bob's head and forcing him to sign over the restaurant. In fact, the definition of federal extortion, "…the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence or fear…"10 is far more expansive than it looks, not least because the definition of "property" includes "the intangible right freely to conduct one's lawful business."

Even more expansively, the civil RICO plaintiff need not even demonstrate the actual commission of criminal predicate acts in order to show a violation of the statute. Under § 1962(a) of the Act, it is illegal for "any person to conspire to violate" subsections (a)-(c) of § 1962. Hence, one need only show that the defendants conspired to commit one or another of the required racketeering acts to mount a successful pleading. Going even further, specific defendants need not "have agreed to actually commit the predicate acts" or "even to participate in the commission of those acts so long as [they] agreed that the acts would be committed on behalf of the conspiracy."11

That Journolist would be an "association-in-fact" seems a difficult proposition to dispute. They seem to have readily admitted as much in their writings, both ex ante and ex post.

But, unfortunately (or, perhaps, very fortunately), finem respice is not possessed of sufficient RICO trial experience to opine on whether conversations that include this:

I do not endorse a Popular Front, nor do I think you need to. It’s not necessary to jump to Wright-qua-Wright’s defense. What is necessary is to raise the cost on the right of going after the left. In other words, find a rightwinger’s [sic] and smash it through a plate-glass window. Take a snapshot of the bleeding mess and send it out in a Christmas card to let the right know that it needs to live in a state of constant fear. Obviously I mean this rhetorically.

And I think this threads the needle. If the right forces us all to either defend Wright or tear him down, no matter what we choose, we lose the game they’ve put upon us. Instead, take one of them — Fred Barnes, Karl Rove, who cares — and call them racists. Ask: why do they have such a deep-seated problem with a black politician who unites the country? What lurks behind those problems? This makes *them* sputter with rage, which in turn leads to overreaction and self-destruction.

...rise to the level of "…the obtaining of [the intangible right freely to conduct one's lawful business] from another, with his consent, induced by wrongful use of actual or threatened force, violence or fear...." Nor can we accurately predict if this:

...why don’t we use the power of this list to do something about the debate?


It would create quite a stir, I bet, and be a warning against future behavior of the sort....

...resembles the legal definition of federal extortion.

It seems fairly certain, however, that "YES. A thousand times yes..." would constitute evidence of conspiracy within the meaning of MCM Partners, if the extortion definition were first met.

Is: there any reason why the FCC couldn't simply pull their broadcasting permit once it expires?

...evidence of conspiracy to interfere in governmental processes? Mind you, just because this conspiracy had zero chance of success (Fox, as a cable company, isn't licensed by the FCC)12 doesn't prevent it from being potentially criminal.

To the extent members of Journolist have shed all artifice of neutrality and are found to have derived, probably after the fact, compensation (even non-financial compensation) from a "covered executive branch official," have they violated the provisions of the Lobbying Disclosure Act of 1995?13

Or, is all this just overreaching in a case of simple, "boys will be boys" trash talk gone public? Of course, that's not clear, and it seems daunting to imagine a world in which political advocacy (even as unclean as this) would trigger the kind of stark liability outlined above- but by the same token isn't it exactly the members of Journolist who reflexively resort to such measures to counter the "corrupting influence" influential, connected cabals (real or imagined) hold over the political process? Have we found in this paradox yet another example of panicked denial and the projection beamed anxiously into the public that is intended to deflect it? Well, we really don't know. But neither have all the archives become public, and it bears noting that the members of Journolist do not enjoy the same sort of sovereign immunity possessed by the JSOU.

  1. 1. James Kinniburgh and Dr. Dorthy Denning, "Blogs and Military Information Strategy," The Joint Special Operations University (June 2006).
  2. 2. Miranda v. Ponce Federal Bank, 948 F.2d 41, 44 (1st Cir. 1991).
  3. 3. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).
  4. 4. West Virginia v. Moore, 895 F. Supp. 864 (S.D. W. Va. 1995)
  5. 5. Doe v. Roe, 958 F.2d 763, 765 (7th Cir. 1992).
  6. 6. Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256 (2d Cir. 1995).
  7. 7. Gagan v. American Cablevision, Inc. 77 F.3d 951, 962-63 (7th Cir. 1996).
  8. 8. 71 F.3d 1343, 1346 (7th Cir. 1995).
  9. 9. Mylan Labratories, Inc. v. Matkari et al., 7 F.3d 1130 (4th Cir. 1993).
  10. 10. 18 U.S.C. § 1951(b)(2).
  11. 11. MCM Partners Inc. v. Andrews-Bartlett & Associates, Inc. 62 F.3d 967, 980 (7th Cir. 1995).
  12. 12. Peter Suderman, "No, the FCC Can’t Shut Down Fox News," Reason Magazine (July 21, 2010).
  13. 13. 2 U.S.C. § 1602-1614.
[Art Credit: Unknown Artist "Unknown Title," Video (c. 2009), From the Author's Private Collection. The imposing visage of Spencer Ackerman of "who cares-- call them racists" fame.]

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