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Jack Goldsmith Declares Victory … for Osama bin Laden

Yesterday, Jack Goldsmith misread a crabby Harold Koh defense of Obama’s ISIL escalation justification as the end to the end to the Forever War.

Harold’s Koh’s grudging defense of the domestic legal basis for President’s Obama’s use of force against the Islamic State in Iraq and Syria is important.  It adds little new to other defenses of the President’s position – a legal position, I have argued in past posts, is politically stupid and constitutionally imprudent but nonetheless legally defensible under Article II and the 2002 AUMF (but not the 2001 AUMF).  Koh’s defense is nonetheless important because it definitively reveals the death of the Obama administration’s ambition to end what Koh has described as “the Forever War.”

As I said, I think this is a misreading of Koh. Koh still clings to the notion that a Congress ducking legislative action for many reasons – almost none of which have to do with electoral pressure in the short term, and many of which have to do with the fact the President has given them the luxury of dodging responsibility for what will almost certainly be an unpopular and probably unsuccessful escalation — will provide the President a more appropriate authorization for his escalation later this year.

Achieving a better outcome is not politically impossible. Representative Adam Schiff’s proposed AUMF, for example, would accomplish in one bill three of the four steps described above. It would (1) authorize “all necessary and appropriate force against ISIL” for eighteen months, limited geographically to Iraq and Syria and operationally to no US ground forces; (2) repeal the 2002 Iraq AUMF now and (3) repeal the 2001 al-Qaeda AUMF in eighteen months. If the President openly backed such legislation, it would place his war with ISIL on a much firmer legal ground, while advancing his longer-term objective—announced in 2013 at the National Defense University —of taking us off a permanent war footing.

This President came to office to end war. But he just declared a new one, sparing Congress of its constitutional responsibility to back him. Instead of breaking the vicious cycle, and asking Congress to live up to its constitutional duties to confront the Islamic State, the President prolonged a dysfunctional historical pattern that is inconsistent with the design of our National Security Constitution. As the conflict with ISIL stretches on, pressure will build to send advisers and other boots on the ground to further the goal of destroying ISIL. Americans and the world will grow weary and forget the exigencies that led this President to take this course.

There is still time to avoid this vicious cycle. When Congress returns, some will be lame ducks, and for all, the next election will be at least two years off. If members of Congress seriously care about their prerogatives, they will have no excuse for again ducking their constitutional responsibility. And this President will have those same years to consider what his constitutional legacy will be. History will treat this President far better if he leaves office not just having fought the Islamic State, but having lived up to his promise to put us on the path toward ending the Forever War.

That is, Koh still clings to the fantasy that the President will agree to limit his own authority when Congress won’t force him to do so.

Goldsmith, on the other hand, presents Koh’s painful somersaults as endorsement of the notion that Islamic extremism will remain a threat for the foreseeable future, and therefore Congress may finally replace the 2001 AUMF with something that better authorizes Forever War for the long haul.

I always thought the debates about what to do with the 2001 AUMF – repeal it, let the President interpret it flexibly, or replace it with a more rigorous updated authorization – turned on intuitions about the persistence and danger posed by Islamist terrorists.  It is now clear that the Islamist terrorist threat is not dissipating anytime soon.  It is also clear that the President’s interpretation of the 2001 AUMF to fight this threat, whether lawful or not, is certainly a stretch, even on Koh’s account.  It is also pretty clear, finally, that Congress will not easily authorize wars on a threat-by-threat basis.  So perhaps now we can start talking about realistic statutory replacements for the 2001 AUMF.

For Koh, this is a choice between a legally defensible (in the short term) justification, and more legally justifiable way to bring the Forever War to a close. For Goldsmith, however, the choice is between a legally suspect justification for the Forever War, and a more defensible justification for the Forever War.

Forever War or Forever War.

Whichever you choose, the President will retain the authority to override limits on domestic spying (written by … Jack Goldsmith!), to override due process to drone-kill American citizens, to indefinitely detain men who were sold for a bounty, and to train and arm men we’ve given cause to loathe us. From time to time, Congress will be called on to stir itself from suckling, Matrix-like, on its Defense Contractor cash to approve funds and expand immunities. The fight Osama bin Laden started will continue to rot our government and Constitution. “They hate us for our freedoms,” they used to say, and now our experts embrace indefinitely signing away those freedoms in increasing bits, via legally suspect means or legally defensible.

All the while, this Forever War will suck up money that should be spent funding things like education and infrastructure, things that used to sustain America’s vitality. And the constant threat inflation needed to justify this Forever War will distract from far more pressing threats, like climate change and Ebola and reckless banksters.

Perhaps the only thing that hasn’t worked as OBL wanted is that America’s refusal to deal with climate change will kill devout Muslims in far greater numbers, at first, than it will Americans.

Institutionalizing the Forever War might as well be declaring victory for OBL.

The most interesting part of this exchange, in my opinion, is how Koh, after having referred to a bunch of fellow law professor critics as “commentators,” then called law professor Mary Ellen O’Connell, writing for a publication with greater reach and news credibility than the legal blog Just Security that Koh was writing in, “the blogosphere.” Continue reading

Hiding Yahoos: ORCON and the FISC Special Advocate

Some weeks ago, I noted the language in James Clapper’s letter purportedly “supporting” Patrick Leahy’s USA Freedom Act making it clear he intended to retain the information asymmetry that currently exists in the FISA Court — specifically, ex parte communication with the court.

We note that, consistent with the President’s request, the bill estsablishes a process for the appointment of an amicus curiae to assist the FISA Court and FISA Court of Review in matters that present a novel or significant interpretation of the law. We believe that the appointment of an amicus in selected cases, as appropriate, need not interfere with important aspects of the FISA process, including the process of ex parte consultation between the Court and the government. We are also aware of the concerns that the Administrative Offices of the U.S. Courts expressed in a recent letter, and we look forward to working with you and your colleagues to address these concerns.

The Yahoo documents released a few weeks back illustrate how this might work in practice.

We’ve known since January 2009 that Yahoo (which we then only knew was an Internet company) didn’t receive the materials — perhaps most importantly, the minimization procedures — it needed to adequately challenge the program.

The cover sheet to the ex parte appendix provided to the FISCR illustrates the range of things withheld from Yahoo’s attorney, Marc Zwillinger, who apparently had a Top Secret clearance. In addition to the minimization procedures for NSA and FBI, the government withheld the “linking” procedures used to identify targets (the titles of these documents are redacted in the released version, but this post explains why at least some must pertain to these procedures; note, I think the government also withheld these from Judge Reggie Walton at the FISC level!), and a January 15, 2008 Colleen Kollar-Kotelly FISC opinion assessing the adequacy of the original certifications.

Comparing two versions of Walton’s April 25, 2008 opinions — a version redacted for Yahoo’s use in 2008, and the version redacted for public release now — provides context on the key issues obscured or suppressed entirely from Yahoo’s view. (Note two things about these redactions: first, with the exception of language on the information the government demanded from Yahoo, we’re receiving more information than Yahoo’s cleared attorney received when he was fighting this case. And the older document actually includes two sets of redactions: the more faded redactions used for Yahoo, and a more opaque set done for this release, the latter of which hide details about the Directives given to Yahoo.)

Effectively, the government hid what they changed when they rewrote Certifications underlying their demands to Yahoo just 2 weeks before the law expired. A significant part of those changes involves getting FBI involved in the process (I increasingly suspect those January 29, 2008 Certifications are when the government first obtained official permission for FBI back door searches).

Notice of the new Certificates was given to Yahoo on February 16, 2008, the day PAA expired, and signed by then Solicitor General Paul Clement, though signed as Acting Attorney General (see page 81). One day earlier, Judge Walton had given the government an ex parte order requiring them to address whether the ex parte materials they had submitted to him in December “constitutes the complete and up-to-date set of certifications … applicable to the directives that are at issue in this proceeding.” Walton also required the government to provide notice to Yahoo they were going to submit a new classified appendix.

Apparently, Walton had gotten wind of the fact — but had not been told formally — that the government had submitted entirely new Certifications affecting their treatment of the data they would obtain from Yahoo. So he ordered them to update the record so his review actually considered the surveillance as it would be implemented.

I’ve listed most of the differences between the two memoranda below. While much of it pertains to prior classified decisions and the operation of FISC generally, the biggest sections redacted from Yahoo but released in part to us now describe the new certifications, including FBI’s new role in the process.  Of particular concern, the government withheld Walton’s comment admonishing the government for changing the certifications, “without appropriately informing the Court or supplementing the record in this matter until ordered to do so” (page 4), though footnote 4 and page 35 make it clear that Walton revealed some details of the government’s belated disclosures in a February 29 order for more briefing.

More troubling still, they hid Walton’s still significantly-redacted assessment that the changes in the Certifications would not change the nature of the government’s demand from Yahoo (page 38).

Neither type of amendment altered the nature of the assistance to be rendered by Yahoo,40

40 Yahoo has submitted a sworn statement that, prior to serving the directives on Yahoo, representatives of the government “indicated that, at the outset, it only would expect…

I wrote about these changing requests here. And while on paper the changing requests couldn’t have been a result of the changed Certification — Yahoo’s Manager of Legal Compliance described them in a January 23 submission, and the new Certifications were issued the following week — I find the timing, and the government’s failure to notice Walton on them, suspect enough that it’s the kind of thing that should have been briefed. Plus, as I’ll show in a follow-up post, I’m fairly certain the government hid  from both FISC and FISCR the degree to which this was about targeting Americans.

Once Walton learned that the government’s requests to Yahoo had changed between the date of Kollar-Kotelly’s initial approval and the expiration of the law, it seems it should have merited more direct briefing, but that would have required admitting that the changes put domestic law enforcement in the center of the program, which presents (or should present) significantly different Fourth Amendment concerns, notably increasing the importance of prior interpretations of the “significant purpose” language instituted under the PATRIOT Act.

In other words, not only did the ex parte nature of this proceeding hide the details Yahoo would have needed to make a robust Fourth Amendment argument, as well as evidence that the government was not being entirely forthcoming to FISC (which would have bolstered Yahoo’s separation of powers claim), it also hid what may be specifically pertinent details behind the government’s last minute changed certifications.

In theory, this shouldn’t happen with the USA Freedom Advocate, because the bill specifically requires the Advocate have access to certifications necessary for her to complete her duties.

(A) IN GENERAL.—If a court established under subsection (a) or (b) designates a special advocate to participate as an amicus curiae in a proceeding, the special advocate—

[snip]

(ii) shall have access to all relevant legal precedent, and any application, certification, petition, motion, or such other materials as are relevant to the duties of the special advocate;

By comparison, the government was challenging Yahoo’s legal standing to take this challenge in the first place.

But I find the apparent basis for withholding information from Yahoo to be relevant. This memorandum, at least, was originally classified Top Secret/ORCON (Originator Controlled); the redacted memorandum given to Yahoo was classified Secret. That means that the changes arose, at least in part, from the ability of the originator (which may be DOJ’s National Security Division, given that Mark Bradley conducted the declassification review) to determine who gets the document. As I noted, there are two bases in USAF that would permit the government to withhold information, classification and privilege. Withholding information under an ORCON claim likely stems from both (though I am checking this).

So while the government should not be able to treat the advocate the same way they treated Yahoo (which, after all, FISC treated as a Congressionally sanctioned challenger to the orders, just as it would the advocate), they seem to have the prerogative to. (Update: I should add that Walton permitted the government to do all the ex parte briefing here under FISA’s ex parte briefing language; given that USAF doesn’t change that for any of the authorities in question, we should assume this precedent will apply to the advocate.)

To be clear, the USAF advocate is not one of the things that I believe sets back a slow reform process (as, for example, I believe the “transparency” provisions and some weakened minimization procedures do). I think it most likely that the advocate will evolve the way PCLOB has, which was first authorized in 2004, thwarted by Executive obstruction (on precisely these kinds of issues), reauthorized as a more effective body in 2007, then slow-walked again — partly by President Obama, though partly by Congress — for another 6 years. That is, if the advocate is at least as self-respecting as Lanny Davis (!), she will quit if the Executive ignores the intent of Congress that she have access to the materials she needs to do her job, exposing the inefficacy of the existing system. All that, of course, assumes she will cop onto what has been withheld. Clearly, Yahoo got a sense of it during this process, though FISC and FISCR seem to have realized only some of the other stuff withheld from them.

That is, judging by the PCLOB example, if all goes well and if USAF were to pass this year, we might have a fully functional advocate by 2023!

The Yahoo materials released show that the government withheld pertinent information from Yahoo, FISC, and FISCR until forced to provide it, and they never provided any of them with all the information they should have.

That it retains the ability to do so under USAF doesn’t bode well for the advocate. But that’s really just a subset to a larger issue that, even when authorized by Congress to provide oversight of this executive spying, the government has consistently, for years, been less than fully cooperative with FISC’s authority to do so.

As I’ve said, the surest way to reform surveillance is to eliminate the FISA Court.

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Day after Escalating Climate Damaging War, Obama Cites “Beyond Vietnam” on Climate Urgency

In a column at Salon, I compare two executive actions President Obama took this week: escalating the war against ISIL (and expanding it to “the Khorasan group”), and including climate resilience as one consideration in foreign aid projects.

The war escalation makes it quite clear that Obama believes he has expansive Executive Authority. Which makes it all the more pathetic that he’s still piddling around with using that authority to respond to a far more urgent threat, climate change.

Perhaps more appalling, however, is how he rolled these out. The day after escalating a war that will burn vast amounts of fossil fuel at a speech at the UN Climate Summit, Obama invoked Martin Luther King, Jr’s “Beyond Vietnam” speech to describe the urgency of the problem he is largely ignoring.

In his climate speech, the president rather ironically invoked Martin Luther King Jr.’s speech “Beyond Vietnam.” In it, the civil rights leader described how we did then what we still do now in the Middle East: “[W]e increased our troop commitments in support of governments which were singularly corrupt, inept, and without popular support.” The day after Obama escalated a war on the other side of the world, he cited King’s radically anti-war speech to invoke the urgency of fighting climate change, not terrorism. “We are now faced with the fact, my friends, that tomorrow is today. We are confronted with the fierce urgency of now,” the original speech went. “[T]here is such a thing as being too late,” were the words the president cited.

And yet, having invoked that urgency, the president took executive action that — compared with his executive actions that expanded a war —  was timid and inadequate to the climate threat facing the nation and the globe.

The president clearly believes he has expansive authorities to protect the country. Given that’s the case, why isn’t he heeding Dr. King’s call to meet the urgency of the moment with appropriate action?

Obama is clearly making a choice to use his Executive Authority to respond to less urgent threats.

And all the while he’s invoking the words of King to put a gloss on his own inaction.

Click through for more.

Yahoo’s FISA Content Requests Went up 30% in Second Half of Last Year

Yahoo just released their transparency report for the first half of this year, which means they can report on the National Security requests from the last half of last year.

And that data shows a pretty alarming spike in FISA Content Requests.

The first half of the year showed their FISA content requests affected <40,000 accounts.

Screen Shot 2014-09-25 at 4.00.32 PM

 

The second half of the year showed their FISA content requests affected <51,000 accounts.

Screen Shot 2014-09-25 at 3.58.48 PM

 

That’s a 30% increase in accounts affected in just 6 months.

It’s possible, of course, what we’re seeing is a new kind of service being accessed by the government, which might by itself justify such a spike. Or it may be that the government is doing that much more spying.

Eric Holder Resigns, Will Likely Go Back to Representing Banks at Covington and Burling

As we speak, Chuck Schumer is probably yelling into a phone trying to get President Obama to nominate Wall Street’s US Attorney Preet Bharara to succeed Eric Holder as Attorney General. “Barahck,” Schumer is probably yelling, “I can get Mitch to agree to push Preet through in the Lame Duck.”

That’s because Holder has just announced his resignation, pending confirmation of his successor.

The three most interesting details in Carrie Johnson’s scoop on Holder’s resignation are that he is likely to return to Covington and Burling, where — like former Criminal Division Chief Lanny Breuer before him — he will represent banks as they craft sweetheart deals with DOJ.

Friends and former colleagues say Holder has made no decisions about his next professional perch, but they say it would be no surprise if he returned to the law firm Covington & Burling, where he spent years representing corporate clients.

Nice to know a guy can still profit off of 6 years of overlooking rampant bank crime.

Johnson also reported that Holder plans to push through racial profiling guidelines that will protect African Americans but not Muslims.

Long-awaited racial profiling guidelines for federal agents will be released soon, too. Those guidelines will make clear that sexual orientation, ethnicity and religion are not legitimate bases for law enforcement suspicion, but controversial mapping of certain communities — including Muslim Americans — would still be allowed for national security investigations, one of the sources said.

That will soil the one real bright spot of Holder’s tenure at DOJ, his fight for civil rights.

Finally, Johnson reported that Don Verrilli — the guy who seemed to, but did not quite — lose the ObamaCare fight is the leading candidate to replace Holder.

The sources say a leading candidate for that job is Solicitor General Don Verrilli, the administration’s top representative to the Supreme Court and a lawyer whose judgment and discretion are prized in both DOJ and the White House.

By “judgement and discretion,” I wonder whether Johnson’s sources are referring to Verrilli’s stubbornness in not correcting the lies he told SCOTUS (wittingly or unwittingly) about DOJ’s implementation of FISA Amendments Act in the Amnesty v. Clapper case. By claiming, falsely, that DOJ gives defendants notice that they’ve been caught using Section 702, Verrilli successfully beat back the Justices’ concerns that no one would ever have standing to challenge these laws.

For what it’s worth, I think people are vastly overestimating the time it will take to replace Holder. After all, Republicans are on the record that they believe Holder to be contemptuous of Congress. While the House GOP that is suing him don’t actually get a vote on his replacement, surely they’ll convince their proxy Ted Cruz to represent their contempt.

Thus, for the right candidate, I suspect confirmation will happen quickly, just as Caroline Krass got confirmed in a landslide when the costs of leaving Robert Eatinger — who referred CIA’s overseers to DOJ for investigation — in place as Acting CIA General Counsel became clear.

I’m just not convinced Verrilli is that guy. And while Preet did lead the investigation into Alberto Gonzales’ politicization of the US Attorneys when he worked for Schumer, surely the GOP cares more about his diligent efforts to not investigate the banks in the interim.

Zbig’s Plotting over Chilean Sea Bass

Earlier this month, President Obama hosted a dinner with past foreign policy luminaries to explain his plan to combat ISIL. He served Chilean sea bass and d’Anjou pear salad as they discussed the future of America’s empire.

Harman described the dinner on Monday as “focused and thoughtful.” Over a dinner of d’anjou pear salad and Chilean sea bass, Obama, Vice President Biden and the outside experts engaged in a deep discussion of the options to combat the Islamic State, those who participated said.

Among the attendees was Zbigniew Brzezinski (see the full list of attendees below), Jimmy Carter’s National Security Advisor.

I thought it a curious choice, given how much of the Blowback we’re still fighting he birthed. As NSA, after all, Zbig crafted what he thought was a brilliant plan to draw the Soviet Union into a quagmire in Afghanistan. Even after al Qaeda had started attacking the US in Africa, Zbig thought fostering well-trained Islamic terrorists was an acceptable trade-off for having lured the Soviet Union into an embarrassing defeat.

Brzezinski: Yes. According to the official version of history, CIA aid to the Mujahadeen began during 1980, that is to say, after the Soviet army invaded Afghanistan, 24 Dec 1979. But the reality, secretly guarded until now, is completely otherwise Indeed, it was July 3, 1979 that President Carter signed the first directive for secret aid to the opponents of the pro-Soviet regime in Kabul. And that very day, I wrote a note to the president in which I explained to him that in my opinion this aid was going to induce a Soviet military intervention.

Q: Despite this risk, you were an advocate of this covert action. But perhaps you yourself desired this Soviet entry into war and looked to provoke it?

B: It isn’t quite that. We didn’t push the Russians to intervene, but we knowingly increased the probability that they would.

Q: When the Soviets justified their intervention by asserting that they intended to fight against a secret involvement of the United States in Afghanistan, people didn’t believe them. However, there was a basis of truth. You don’t regret anything today?

B: Regret what? That secret operation was an excellent idea. It had the effect of drawing the Russians into the Afghan trap and you want me to regret it? The day that the Soviets officially crossed the border, I wrote to President Carter. We now have the opportunity of giving to the USSR its Vietnam war. Indeed, for almost 10 years, Moscow had to carry on a war unsupportable by the government, a conflict that brought about the demoralization and finally the breakup of the Soviet empire.

Q: And neither do you regret having supported the Islamic fundamentalism, having given arms and advice to future terrorists?

B: What is most important to the history of the world? The Taliban or the collapse of the Soviet empire? Some stirred-up Moslems or the liberation of Central Europe and the end of the cold war?

Zbig doesn’t acknowledge it here, but another reason he thought this was such a great idea is because the Iranian revolution was already in full swing, and he hoped to counter our loss of footprint there with something to keep the Russians busy next door.

In so many ways that decision has led inexorably to where we are, doing the bidding of dangerous Saudi allies who are actually a cause of the extremism we fight, not its solution.

Even before the Chilean sea bass dinner, I’ve been wondering whether the US would double down on its commitment to the Saudis, in spite of the way they’ve fostered this terrorist threat, or whether we’d use the opportunity to cement the deal with Iran, giving us more space from the Saudis.

I’m embarrassed I even wondered. I should have known from heavy-handed intercept of Russian jets and the increasing sanctions on both Russia and Iran that we intended to gain advantage both against ISIS and against those who question our unlimited hegemony.

But this account of how the Saudis came to join in bombing campaigns against Islamic extremists makes it rather clear.

The Americans knew a lot was riding on a Sept. 11 meeting with the king of Saudi Arabia at his summer palace on the Red Sea.

A year earlier, King Abdullah had fumed when President Barack Obama called off strikes against the regime of Syria’s Bashar al-Assad. This time, the U.S. needed the king’s commitment to support a different Syrian mission—against the extremist group Islamic State—knowing there was little hope of assembling an Arab front without it.

At the palace, Secretary of State John Kerry requested assistance up to and including air strikes, according to U.S. and Gulf officials. “We will provide any support you need,” the king said.

That moment, more than any other, set in train the U.S. air campaign in Syria against Islamic State, according to U.S. and Gulf officials. Mr. Obama made clear he would only authorize strikes if regional allies agreed to join the effort.

[snip]

The process gave the Saudis leverage to extract a fresh U.S. commitment to beef up training for rebels fighting Mr. Assad, whose demise the Saudis still see as a top priority.

[snip]

After Islamic State made startling gains in Iraq, Saudi officials told Mr. Kerry in June that Iraqi leader Nouri al-Maliki, a Shiite with close ties to Iran, needed to go, according to U.S officials. Once that happened, Riyadh would step up its role against Islamic State and work to bring other Gulf states onboard. The Obama administration had come to a similar conclusion and started to maneuver Mr. al-Maliki out of office.

[snip]

Two of the F-15 pilots were members of the Saudi royal family, including Prince Khaled bin Salman, son of the crown prince. In the third wave of the initial attack, half of the attack airplanes in the sky were from Arab countries.

There’s far more at the link: the Saudi agreement to host the training (something I’ll return to), Bandar’s presence — and smiles — at the meeting on September 11,  (Though, if I’m not mistaken, the story had more details about the meeting between Saudi Ambassador Adel al-Jubeir and Obama when it was first posted last night, including that they used first names.)

Whether the US means to faithfully execute their half of the bargain or not, and whether the Saudis are dealing with us in good faith, remains a very good question.

But if they really intend to help the Saudis and Qataris take out Assad (not because he’s a brutal dictator, of course, but because he’s not their brutal dictator), certain things must come with that: a means to undercut the momentum our fight against ISIL will necessarily give Iran and Russia. Otherwise, no amount of training of “moderate” rebels will make a difference — or keep the Saudis happy.

Maybe that’s not what we intend. Maybe we’ve still got a plan in place to ditch the Saudis. But if not, expect some kind of Zbig plan that will likely backfire worse than his earlier one. Continue reading

Obama to Congress: Oh, By the Way, You Just Funded the Iraq War

A number of people have closely scrutinized the latest entry in Obama’s epistolary war — the one informing Congress he had escalated the war into Syria.

I especially like the way he doesn’t even mention the strikes on Jabhat al-Nusra (aka Khorasan) explicitly, lumping them in instead with “these terrorists” who have invaded Iraq.

I have ordered implementation of a new comprehensive and sustained counterterrorism strategy to degrade, and ultimately defeat, ISIL. As part of this strategy, I have directed the deployment of 475 additional U.S. Armed Forces personnel to Iraq, and I have determined that it is necessary and appropriate to use the U.S. Armed Forces to conduct coordination with Iraqi forces and to provide training, communications support, intelligence support, and other support, to select elements of the Iraqi security forces, including Kurdish Peshmerga forces. I have also ordered the U.S. Armed Forces to conduct a systematic campaign of airstrikes and other necessary actions against these terrorists in Iraq and Syria. [my emphasis]

The antecedent to “these terrorists” is ISIL. Yet he effectively lumps his attack on Nusra — which really pissed off the “moderates” in Syria we claim to be fighting with and for — in with ISIL, even though they are totally different groups. As I said, I believe one reason he struck Nusra is to be able to invoke the 2001 AUMF marginally credibly.

I’m also interested in the timing of something noted by Josh Gerstein.

For the first time in his epistolary series of self-authorizations, Obama invoked AUMFs — both of them — to justify his war.

I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional and statutory authority as Commander in Chief (including the authority to carry out Public Law 107-40 [the Afghan AUMF] and Public Law 107-243 [the Iraq AUMF]) and as Chief Executive, as well as my constitutional and statutory authority to conduct the foreign relations of the United States.

I was afraid it would come to this.

I’m particularly struck by the timing of this move. Obama waited until Congress authorized funding for this escalation before he told them he considers the escalation to already have been authorized by them — at a time when most of them weren’t even in Congress (neither was Obama, of course).

I guess that’s the easier route to take, in a democracy, to blame your war on people who’ve long ago retired.

This way, if Congress decides to do nothing to authorize this new war during the lame duck session, Obama can keep on operating with the “sanction” of Congress without anyone having to pay a political price for it.


For shits and giggles, here’s a list of all the Senators who were not in the Senate (some were in the House) for the 2002 Iraq War vote. Just the AL, CA, IA, MI, and WA delegations remain the same as they were for the Iraq AUMF.

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Former FBI Assistant Director Makes a Compelling Case to Eliminate the Corporation

Former FBI Assistant Director apparently isn’t afraid to embarrass himself to fear monger for law enforcement.

That’s the only conclusion I can reach by his penning this op-ed, which still bears its original title in the URL.

http://www.washingtonpost.com/posteverything/wp/2014/09/23/i-helped-save-a-kidnapped-man-from-murder-with-apples-new-encryption-rules-we-never-wouldve-found-him/

In it, Ronald T. Hosko claimed shamelessly that if Apple had been employing its new encryption plans earlier this year, a kidnap victim the FBI rescued would be dead. The two nut paragraphs originally read,

Hosko Fearmongering

It made no sense! As Hosko correctly explained, they solved this case with lawful intercepts of phone content.

Once we identified potential conspirators, we quickly requested and secured the legal authority to intercept phone calls and text messages on multiple devices.

Even if the kidnappers had a new iPhone, FBI would still go to precisely the same source they did go to — the telecom providers — to get the intercepts. The FBI never even had the actual phones of kidnappers in hand — except for the phone the gang leader used to direct the plot from prison, which he crushed before it could be investigated, a technology that has been available to thugs far longer than encryption has.

So it is quite clear that, had this technology been used by the conspirators in this case, the FBI would still have caught them, using precisely the same process they did use to catch them..

After Hosko got called on his false claims on Twitter, he made two corrections — first to this interim fallback. (h/t @empirical error for catching this)

Hosko

That didn’t make any more sense, as they were tracing calls made from the kidnappers. Once they got close enough to examine their actual devices, they had the kidnappers. Now he has changed it to read:

Last week, Apple and Google announced that their new operating systemswill be encrypted by default. Encrypting a phone doesn’t make it any harder to tap, or “lawfully intercept” calls. But it does limit law enforcement’s access to a data, contacts, photos and email stored on the phone itself.

That kind information can help law enforcement officials solve big cases quickly. For example, criminals sometimes avoid phone interception by communicating plans via Snapchat or video. Their phones contain contacts, texts, and geo-tagged data that can help police track down accomplices. These new rules will make it impossible for us to access that information. They will create needless delays that could cost victims their lives.*

[snip]

Editors note: This story incorrectly stated that Apple and Google’s new encryption rules would have hindered law enforcement’s ability to rescue the kidnap victim in Wake Forest, N.C. This is not the case. The piece has been corrected.

Phew. Apparently all this surveillance technology is hard to keep straight, even for an experienced FBI guy. But the truly funny part of Hosko’s piece — now that he at least has some semblance of factual accuracy (though I think he’s still exaggerating about video and Snapchat) — is where he suggests that we should not avail ourselves of any technologies that make it easier on criminals.

If our cutting edge technologies are designed to keep important dots out of the hands of our government, we all might start thinking about how safe and secure we will be when the most tech-savvy, dedicated criminals exponentially increase their own success rates​.

This would lead you to believe Hosko is unaware of the “cutting edge technology” that has probably kept more crime-solving information out of the hands of the government than any measly encryption: incorporation. Drug cartels, human traffickers, even dreaded banksters all use shell corporations as a favored technology to not only hide the evidence of their crime, but to dodge accountability if it ever is discovered. That snazzy technology, the corporation, has empowered criminals far more than cell phone encryption — with all the possible workarounds — will ever do.

Yet if you called for eliminating a beneficial technology like the corporation just because criminals also happen to find it useful, people would consider you batshit insane. It would be a totally disproportionate measure, trading away real benefits in the name of relative but not absolute safety.

But hey! Hosko has already embarrassed himself. So if he feels like doing so again, by all means, I implore him to call for the elimination of the corporation — or even just a few of the exotic financial tools that the most dangerous financial criminals use.

After all, it will make us safer!

Noted Torture Apologist, Branded a Terrorist

For months, I’ve been pointing out that the fear-mongering estimates about the number of Americans who have joined ISIS are inflated due to faulty Terror Watchlist procedures.

That’s in large part because the government considers any unexplained travel to a place known for its terrorist training enough to treat you as a Suspected Terrorist.

[T]he government considers traveling to an area of terrorist activity to be reasonable suspicion that someone is a known or suspected terrorist. The watchlist guidelines list just that as one behavioral indicator for being watchlisted as a known or suspected terrorist (see page 35).

3.9.4 Travel for no known lawful or legitimate purpose to a locus of TERRORIST ACTIVITY.

This means that any Americans who have traveled to Syria or Iraq are likely classified, by default, as terrorists. And many of those may have traveled for entirely different reasons (like freelance journalism).

Given the realities of travel to Syria, this must (and has, among people indicted for attempted material support) extend to people who make one-way travel plans to Turkey, from whence recruits often walk across the border.

Yesterday, Spencer Ackerman got a Senior Official to make the same point I’ve been making — the 100 alleged fighters include a lot of people who are not fighters but instead got swept up because the terror watchlisting process is way too dysfunctional.

The US government believes there are 20 to 30 Americans currently fighting in Syria for the panoply of jihadist groups there, according to a senior official.

The estimate is less than an earlier and much-quoted assessment of approximately 100 Americans taking part in Syria’s civil war and the spillover violence in neighboring Iraq, where the Islamic State militant group (Isis) has launched a war of conquest.

A senior administration official, speaking to the Guardian on condition of anonymity, said that the estimate of roughly 100 represented all Americans who have travelled to Syria or attempted to travel to Syria over the past 18 months, a qualification that US government spokespeople have typically not provided.

Not all of the 20 to 30 Americans went to Syria to join Isis. Some fight with rebel groups resisting the regime of dictator Bashar al-Assad or rival jihadist groups.

[snip]

Nor have all the 100-odd Americans who have travelled or attempted to travel to Syria in the past year and a half gone to fight. The estimate also includes humanitarian aid workers and others attempting to alleviate the Middle East’s most brutal conflict, the official said.

Told ya.

If you want to see how ridiculous this is in practice (or, perhaps, how ironically appropriate) consider the plight of Stephen Hayes, Dick Cheney’s mouthpiece and all-around torture apologist. He recently got put on the Selectee list because — he believes — he made a one way trip to Istanbul for what was actually a cruise but if you do lots of mindless dragnettery might appear like a trip to join Jabhat al-Nusra. (I wouldn’t be surprised if he’s two degrees from some suspect, given how broadly those things get defined and how many international acquaintances he has.)

Hayes, who spoke to POLITICO by phone on Tuesday, suspects that the decision stems from U.S. concerns over Syria. Hayes and his wife recently booked a one-way trip to Istanbul for a cruise, and returned to the States, a few weeks later, via Athens.

It turns out Hayes is finding out the same thing I learned when my white northern European over-educated spouse went through the immigration process. Even for people who have resources and perfect English, making the bureaucracy work the way it is supposed to can be daunting.

At the time of our conversation, Hayes was on the DHS website trying to fill out forms to get his name cleared. It wasn’t going well.

“Not surprisingly, it’s confusing,” Hayes said. “The first time I did it, the whole site froze. Now it’s asking me for my passport number and a bunch of other information. Then I think I’m supposed to submit an actual copy of my passport, which I obviously can’t do electronically.”

Yes, I admit some glee that some like Hayes got swept up in the mindless dragnettery his boss championed. But even Hayes — whose life will soon be back to normal, I imagine — does not deserve this pointless harassment.

Consider how much worse this accidental terror-tourism is for Muslims who can’t run to the press which will mock their plight?

Stephen Hayes may be, by many measures, a horrible human being, arguably even a material supporter of war crimes. But his cruise out of Turkey does not make him a terrorist, no matter what the National Counterterrorism Center claims.

Law Enforcement’s Apple Security Hysteria: About Border Searches?

Border Zone MapAs I noted the other day, Apple just rolled out – and Google plans to match with its next Android release — passcode protected encryption for its cell phone handsets.

Last night WSJ had a story quoting some fairly hysterical law enforcement types complaining mightily not just that Apple is offering its customers security, but that it is a marketing feature.

Last week’s announcements surprised senior federal law-enforcement officials, some of whom described it as the most alarming consequence to date of the frayed relationship between the federal government and the tech industry since the Snowden revelations prompted companies to address customers’ concerns that the firms were letting—or helping—the government snoop on their private information.

Senior U.S. law-enforcement officials are still weighing how forcefully to respond, according to several people involved in the discussions, and debating how directly they want to challenge Apple and Google.

One Justice Department official said that if the new systems work as advertised, they will make it harder, if not impossible, to solve some cases. Another said the companies have promised customers “the equivalent of a house that can’t be searched, or a car trunk that could never be opened.”

Andrew Weissmann, a former Federal Bureau of Investigation general counsel, called Apple’s announcement outrageous, because even a judge’s decision that there is probable cause to suspect a crime has been committed won’t get Apple to help retrieve potential evidence. Apple is “announcing to criminals, ‘use this,’ ” he said. “You could have people who are defrauded, threatened, or even at the extreme, terrorists using it.”

I think the outrage about the stated case — that law enforcement will not longer be able to have Apple unlock a phone with a warrant — is overblown. As Micah Lee points out, the same data will likely be available on Apple’s Cloud.

But despite these nods to privacy-conscious consumers, Apple still strongly encourages all its users to sign up for and use iCloud, the internet syncing and storage service where Apple has the capability to unlock key data like backups, documents, contacts, and calendar information in response to a government demand. iCloud is also used to sync photos, as a slew of celebrities learned in recent weeks when hackers reaped nude photos from the Apple service. (Celebrity iCloud accounts were compromised when hackers answered security questions correctly or tricked victims into giving up their credentials via “phishing” links, Cook has said.)

And the stuff that won’t be on Apple’s Cloud will largely be available from a user’s phone provider — AT&T and Verizon will have call records and texts, for example. So one effect of this will be to put warrant decisions into a review process more likely to be scrutinized (though not in the case of AT&T, which has consistently proven all to happy to share data with the Feds).

Which is why I think the hysteria is either overblown or is about something else.

It may be that this prevents NSA from getting into handsets via some means we don’t understand. Matthew Green lays out how this change will bring real security improvement to your phone from all matter of hackers.

But the most immediate impact of this, I suspect, will be seen at borders — or rather, the government’s expansive 100 mile “border zone,” which incorporates roughly two-thirds of the country’s population. At “borders” law enforcement works under a warrant exception that permits them to search devices — including cell phones — without a warrant, or even any articulable suspicion.

And while it is the case that really aggressive security wonks can and do encrypt their phones now, it is not the default. Which means most people who cross an international border — or get stopped by some authority in that border zone — have their phone contents readily available to those authorities to search. Authorities routinely use their expanded border authority to obtain precisely the kinds of things at issue here, without any suspicion. The terrorist watchlist guidelines (see page 68), for example, note that border encounters may provide evidence from “electronic media/devices observed or copied,” including cell phones.

In 2011, DHS whipped out similarly hysterical language about what horribles actually requiring suspicion before searching a device might bring about.

[A]dding a heightened [suspicion-based] threshold requirement could be operationally harmful without concomitant civil rights/civil liberties benefit. First, commonplace decisions to search electronic devices might be opened to litigation challenging the reasons for the search. In addition to interfering with a carefully constructed border security system, the litigation could directly undermine national security by requiring the government to produce sensitive investigative and national security information to justify some of the most critical searches. Even a policy change entirely unenforceable by courts might be problematic; we have been presented with some noteworthy CBP and ICE success stories based on hard-to-articulate intuitions or hunches based on officer experience and judgment. Under a reasonable suspicion requirement, officers might hesitate to search an individual’s device without the presence of articulable factors capable of being formally defended, despite having an intuition or hunch based on experience that justified a search.

That is, DHS thinks it should be able to continue to search your phone at the border, because if it had to provide a rationale — say, to get a warrant — it might have to disclose the dodgy watchlisting policies that it uses to pick whose devices to search without any cause.

In other words, I’m arguing that the most immediate impact of this will be to lessen the availability of data increasingly obtained without a warrant, and given that the alternate means — administrative orders and warrants — require actual legal process, may mean these things will not be available at all.

If I’m right, though, that’s not a technical impediment. It’s a legal one, one which probably should be in place.

Update: Argh! This is even worse fear-mongering. A former FBI guy says he used intercepted communications to find kidnappers.

Once we identified potential conspirators, we quickly requested and secured the legal authority to intercept phone calls and text messages on multiple devices.

Then claims losing an entirely unrelated ability to search — for data stored on, and only on, handsets — would have prevented them from finding that kidnap victim.

Last week, Apple and Android announced that their new operating systemswill be encrypted by default. That means the companies won’t be able to unlock phones and iPads to reveal the photos, e-mails and recordings stored within.

It also means law enforcement officials won’t be able to look at the range of data stored on the device, even with a court-approved warrant. Had this technology been used by the conspirators in our case, our victim would be dead.

Instead of proving this guy would be dead, the story instead proves that this is not the most pressing information.

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