I have been paying attention to Kenya’s attempt to put a new Constitution in place, particularly as it applies to freedom of expression and hate speech. The constitution will be voted on in August.

Kenya, while having some guarantees of free expression in place, takes a much different view on hate speech than the United States. They experience it differently on a cultural and ethnic level.  Hateful rhetoric similar to speech targeting Jews, Muslims, Hispanics and other religious and ethnic minorities that we may find despicable but part of a free society has resulted in full scale riots in Kenya.  They are therefore much more sensitive to the relationship between words, violence and ethnic incitement.

Kenya’s hate speech laws read as follows under Section  Section 62 of the National Cohesion and Integration Act 2008:

“Any person who utters words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race, commits an offence and shall be liable on conviction to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding five years, or both or a newspaper, radio station or media enterprise that publishes the utterances referred to in subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding one million shillings.”

Section 13 of the Act stipulates that a person is liable to be charged with hate speech when he or she uses threatening, abusive or insulting words or behaviour or displays any written material.

Think that would fly here in the United States?

I found of particular interest, an opinion piece written by John Orso on the allAfrica.com web site entitled “Hate Speech Must Be Penalised“referring to the recent arrests of Kenyan politicians on hate speech charges. He wrote:

“After the turmoil which followed the 2007 general elections, Kenyans developed certain sensitivities which every politician and public speaker needs to observe whenever addressing the public. On its part, the government has no option but to ensure that laws against hate speech and incitement are applied. In any case, such laws can only serve their purpose as preventative measures”

If that article was written regarding U.S. politician and media exhortations, we would probably snicker.  As long as Glenn Beck or some other political pundit does not exhort us to go out and commit murder, it’s no holds barred with the ratings winner to he or she or screams the loudest and in the most outrageous fashion. Accusations of hate speech routinely fly back and forth here. In reality, they have no standardized meaning so no one cares on a societal level.  It’s just speech.  Words don’t hurt, unless you live in Kenya.  In Kenya it’s life or death.  As we bask in the glory of free speech and the right to say the outrageous at no cost but to our dignity, lets not lose site of the fact that words are sticks and stones, just not here…

Joshua 6:23; And the young men that were spies went in, and brought out Rahab, and her father, and her mother, and her brothers, and all that she had; and they brought out all her kindred, and left them without the camp of Israel

The United States Code Title 18, Part I Chapter 115 defines treason as follows:

“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States”

“The full resources of the Justice Department will be devoted to ensuring that those persons who would betray their country and the people of the United States are prosecuted and severely punished.”-The United States Attorney commenting on the Robert Hanssen case.

The cold war is back. Federal prosecutors have accused 11 people of spying for the Russians. In true mole fashion sounding like something right out of the movie  “No Way Out” the FBI alleges that these spies were sent here by the Russian overseas intelligence service known as the SVR — the successor to the Soviet KGB — as early as the mid-1990s, and were provided with training in language as well as the use of codes and ciphers.

Spying is a time honored means of learning about our enemies even when they are formally no longer our enemy. Sometimes they are moles whose allegiances were never to the United States. Sometimes they are turned. What motivates people to turn against their country? “Treason” is a terrifying word. Any time it is invoked, a person has either successfully or attempted to sell out the United States to the highest bidder.  Treason is also one of the very few crimes on the Federal books that carry the death penalty without having to prove that the crime actually resulting in death.  So why do traitors turn when they are facing death? “

I was able to speak with an current FBI agent who has worked on the intelligence side. He wishes to remain anonymous. He stated that most traitors turn for the following reasons:

• Money
• Ideology (Political or religious)
• Sex / Drugs other dependencies

In the years since the Robert Hanssen case, it has been business as usual for those selling out our country both intentionally and unwittingly for the above reasons.

Robert Hanssen is considered the most damaging traitor in terms of lives, intelligence lost and dollars to repair the damage done to national security. That is quite a title in the company of Julius and Ethel Rosenberg, Aldrich Ames and Benedict Arnold. His case was dramatized in the move Breach. Hanssen consistently passed critical intelligence information on to the Soviets over 20 years. He divulged information such as Soviet double agents(resulting in their execution) and the United States continuity of government plan in case of nuclear attack.  Hanssen was spared the death sentence in exchange for his cooperation in undoing the damage he did. He is currently serving his life sentence at the Federal Supermax facility in Florence Colorado.

Has everything we learned since Hanssen prevented further “megaton” breaches in national security?  There is no question that counter Intelligence spending has increased dramatically post Hansen.   It was mistakenly revealed that in 2005 the United States spent 40 billion dollars on its’ spy agencies.  One would have hoped we had successfully “whack a moled” most Russian plants and disaffected government agents.  Who are some of the spies that have betrayed our loyalties and for what reasons?

Gregg William Bergersen was sentenced to five years in prison for conspiracy to disclose national defense information to persons not entitled to receive it. Bergersen was a Weapons Systems Policy Analyst at the Arlington, Va.-based Defense Security Cooperation Agency, an agency within the Department of Defense.  While in this position, Bergersen provided national defense information on numerous occasions to Tai Shen Kuo, a naturalized U.S. citizen and a New Orleans businessman. Much of the information pertained to U.S. military sales to Taiwan and was classified at the Secret level.  Mr Kuo in return provided Bergersen with money, gifts and trips to Vegas. Tai Shen Kuo was sentenced to almost 16 years in federal prison.

The Bergersen case highlights the continuing tension with China with regards to their aggressive efforts to obtain United States military and technology data. This case was one of the more serious cases of espionage since Robert Hanssen. Interestingly, his handlers ran what intelligence professionals call a “false flag” operation. They made him believe that the information he was providing was going to Taiwan, an American ally.

In the end, the true motivation was far less altruistic. It was the second oldest temptation. Like 90 percent of the espionage cases that came before him, it was all about money. Mr. Kuo promised Bergersen that he would make him as a partner at 400k per year in a defense consulting firm after he retired from the Pentagon. This was in addition to the gifts and Vegas trips.

While the Bergersen case was a case of a planned attempt at espionage by the Chinese government, many more of these cases are in the Grey zone between breaches of national security and commercial espionage by foreign governments to gain a technology advantage.  An article in the New York Times highlights the concern the United States government has over very aggressive Chinese efforts to obtain classified information by conventional and unconventional means probing for openings at the lowest levels in areas we would never expect in the hopes that it will lead to the locations of weakness in our commercial and government intelligence defense systems.

The FBI recently investigated and obtained one of the 1st convictions under the Economic Espionage Act of 1996. Xiaodong Sheldon Meng, a software engineer born in China was sentenced to 24 months in prison for stealing a military source code from his employer and attempting to transfer it and other military technology he took to the Chinese Government.

In addition to China, the Middle East will undoubtedly be a fertile recruiting ground for moles, double agents and infiltrators. The Middle East scenario has already reared its ugly “two face” in the name of Nada Nadine Prouty, a former FBI agent who plead guilty in November 2007 to fraudulently obtaining U.S. citizenship and improperly accessing sensitive computer information about Hezbollah.   Prior to her resignation she was a CIA spy assigned to Middle East operations.  Prouty is an interesting case. There are those who feel she was a true spy treated much too leniently in receiving a $750 fine and no jail time for her actions.  There are those who feel she is a scapegoated patriot.

Ironically one of the more recent arrests of an accused traitor involved the Middle East but not with one of our enemies. In 2009, Stewart David Nozette, 52, rrested Monday on charges of attempting to pass along classified information to an undercover FBI agent he believed was an Israeli intelligence officer.

Speaking of Israel, In 2008, 85 year old Ben-ami Kadish a former U.S. Army mechanical engineer, was arrested and charged with four counts of conspiracy. The charges allege that Kadish passed classified documents to the government of Israel during the 1980s. His alleged spy activities have been linked to convicted spy Jonathan Pollard who also passed secrets on to Israel.  Kadish did no jail time but was fined 50k.

What about Jonathon Pollard?   Pollard, a former civilian intelligence analysis was convicted of spying for Israel. He received a life sentence in 1987 with a recommendation against parole.  The Pollard case has been a consistent source of  diplomatic tension between the State Of Israel, and the United States.  Israel granted Pollard citizenship in 1995 and would like to see him freed for return.  Pollard is in fact eligible for parole but has never applied for it.

Pollard  has denied spying “against” the United States. He said he provided only information he believed was vital to Israeli security and was being withheld by the Pentagon. This included data on Soviet arms shipments to Syria, Iraqi and Syrian chemical weapons, the Pakistani atomic bomb project and Libyan air defense systems.

If you take a look at the Victim’s Impact Statement filed by the Federal Government at Pollards sentencing, his activities and the damage done to our national security take a much more personal bent and even more so when the video below is viewed.  Video of Pollard in the actual act of stealing classified material from the United States. In effect stealing the security of every citizen of this country.

How much damage did Pollard do?   That is in dispute but he was certainly no Robert Hanssen.  In my mind that is irrelevant.  Once he put our vulnerabilities into the open he lost control over the material as to where it ended up and every American ,Jew and non-Jew lost control to a small degree over their future safety.  Not because he passed information to an ally but because we lost control of  every other place that information could end up.

Should Jonathan Pollard be released.  I would prefer not.  Those who steal my security and comfort in going to bed every night by putting our countries most protected secrets and  vulnerabilities into the open regardless of intentions should serve out their full sentence.

Pollard has many high profile supporters asking for his release.  Among them Harvard Professor Alan Dershowitz who represented Pollard early in the case.  You can read his family’s  web site outlining why should be released and come to your own conclusions.

Moral of story? Old spies never die, they just blend into the masses. The other moral? When it comes to money and national security love is fleeting….

The battle to confirm Elena Kagan as a member of the Supreme Court begins.  There has been a lot written on her free speech views but very little content of hers to glean from. I will throw in my 1/2 cent.

At a 1993 conference at the University of Chicago Law School she spoke on the benefits of regulating certain “classes” of speech, specifically referring to pornography and hate speech.   The video of the speech was reviewed by Politico. She stated:

“those of us who favor some form of pornography and hate speech regulation” and told participants that “a great deal can be done very usefully” to crack down on such evils.

She further stated:

“Statutes may be crafted in ways that prohibit the worst of hate speech and pornography, language that goes to sexual violence”

While Kagan appears to be focusing more on conduct based regulation when it comes to hate speech, one has to be concerned when we start talking about  a categorical balancing of the costs and “value” inherent in certain speech.  This takes us into a legal form of “social engineering” that has no place on the court.

If speech leads to imminent lawless action or fits a few other very narrow categories  we already can regulate it and we do. Even these types of laws, however, have been subject to moral flexibility. The use of child pornography laws to prosecute sexting is an example.  What about hate speech? Who sets the bar?   Are we going to criminalize Holocaust Denial?  That’s low value speech to me.  Why not?  If she gets hers, I want mine.  It’s ad hoc right?   What about inflammatory political speech?   We tried that once. It was called Sedition. Didn’t work out well.  Certainly not for those who went to prison for criticizing the government.

I am not contending that Kagan is going to go off the “free speech deep end” but to even consider any type of “value balancing” approach to hate speech even with the best intentions could take us down a free speech rabbit hole that will be hard to climb out of, setting the 1st Amendment back decades.

Is there low value speech?  I agree with Kagan that there is.  That does not mean the court should start adding ad hoc categories designed to tell me what it is. I can decide for myself and make my personal decision if I want to view it, engage in it or debate it.  There is already enough subjectivity to go around without opening up a Pandora’s Box of  moral interpretation.

Paul McCartney has compared Global Warming skeptics to Holocaust Deniers. It’s nothing new here.  I have written on this before, criticizing Al Gore for his attempt to build credibility and line his pockets on the backs of 11 million murdered. When people are desperate, and the facts are in dispute,  they scream loudly with outlandish rhetoric to draw attention to the cause with motives something less than the nobility of affirming the truth and horror of the Holocaust.  One would think that Sir Paul demands enough attention on his own without having to resort to such ignorant tactics.  I would love to sit down with him  to find out what he really knows about the Holocaust or if he is simply  parroting Al Gore’s inappropriate use of the imagery.  Nothing more to be said. More of the sad old same old.