emptywheel

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Intelligence Response to KSM’s Claim Intelligence Supersedes Justice Holds Up His Own Trial

Matt Apuzzo collects the thoughts of a number of people who are getting frustrated with the way the CIA and FBI (though I suspect it might be CIA and CIA) keep holding up the Gitmo show trials.

Most damning of them is this quote from top military justice lawyer professor, Eugene Fidell.

“It’s a courtroom with three benches,” said Eugene R. Fidell, who teaches military justice at Yale Law School. “There’s one person pretending to be the judge, and two other agencies behind the scenes exerting at least as much influence.”

That assessment is not all that far from the claim Khalid Sheikh Mohammed made in the propaganda tract behind this latest delay.

Every democratic country in the west has a constitution, an executive branch, a judicial branch, and a legislative branch. They also have a big black box above and beyond these branches that implements all that it sees as being in the interest of the country or ruling party without consideration for any constitution, morality, religion, or principle. This black box is called Intelligence and its authority supersedes all other considerations.

The Kangaroo Court trying KSM is proving him right. That’s not a good thing.

DOJ Inspector General Investigating DEA’s Use of Parallel Construction under Hemisphere

Screen Shot 2014-04-18 at 11.02.49 AMAs I noted in my last post, DOJ’s Inspector General recently created a page showing their ongoing investigations. It shows some things not described in Inspector General Michael Horowitz’ last report to Congress.

Of particular interest is this investigation.

Administrative Subpoenas

The OIG is examining the DEA’s use of administrative subpoenas to obtain broad collections of data or information. The review will address the legal authority for the acquisition or use of these data collections; the existence and effectiveness of any policies and procedural safeguards established with respect to the collection, use, and retention of the data; the creation, dissemination, and usefulness of any products generated from the data; and the use of “parallel construction” or other techniques to protect the confidentiality of these programs.

The description doesn’t say it, but this is Hemisphere, the program under which DEA submits administrative subpoenas to AT&T for phone records from any carrier that uses AT&T’s backbone. DEA gets information matching burner phones as well as the call records. In addition, it gets some geolocation — and continued to increase what it was getting even after US v Jones raised concerns about such tracking.

The presentation on Hemisphere makes it very clear the government uses “parallel construction” to hide Hemisphere.

Protecting the Program: When a complete set of CDRs are subpoenaed from the carrier, then all memorialized references to relevant and pertinent calls can be attributed to the carrier’s records, thus “walling off” the information obtained from Hemisphere. In other words, Hemisphere can easily be protected if it is used as a pointed system to uncover relevant numbers.

Exigent Circumstances — Protecting the Program: In special cases, we realize that it might not be possible to obtain subpoenaed phone records that will “wall off” Hemisphere. In these special circumstances, the Hemisphere analyst should be contacted immediately. The analyst will work with the investigator and request a separate subpoena to AT&T.

Official Reporting — Protecting the Program: All requestors are instructed to never refer to Hemisphere in any official document. If there is no alternative to referencing a Hemisphere request, then the results should be referenced as information obtained from an AT&T subpoena.

And this is not the only area where DEA Is using parallel construction to hide where it gets its investigative leads. Reuters reported in August that DEA also uses parallel construction to hide the leads it gets from purportedly national security-related wiretapping.

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to “recreate” the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant’s Constitutional right to a fair trial. If defendants don’t know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence – information that could reveal entrapment, mistakes or biased witnesses.

[snip]

The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. “Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”

A dozen current or former federal agents interviewed by Reuters confirmed they had used parallel construction during their careers. Most defended the practice; some said they understood why those outside law enforcement might be concerned.

Presuming that Horowitz is investigating whether DEA’s extensive use of parallel construction complies with the Constitution (and not, as is possible, whether the sources of this information are being adequately buried), this is welcome news indeed.

But it’s also one of several reasons why I’m particularly alarmed, in retrospect, that Horowitz is complaining about his ability to get grand jury information without having to get either Attorney General Holder or Deputy Attorney General James Cole to personally approve it.

After all, the only way you can learn what truly happens in prosecutions that have used parallel construction to hide their sources is to work backward from the actual prosecution. Continue reading

Surprise! DOJ IG’s 1,403 Day Old Section 215 Investigation Had a Baby!

As longtime readers know, I have long tracked a DOJ Inspector General investigation into FBI’s use of Section 215 and other PATRIOT Act authorities.

  • June 2010: Then DOJ IG Glenn Fine lays out investigation
  • June 2013: Transition to Michael Horowitz stalls PATRIOT investigation
  • August 2013: The investigation has been ongoing
  • September 2013: Pat Leahy calls for an IC IG investigation into 215 and 702; IC IG Charles McCullough declines
  • December 2013: Horowitz states current investigation limited by AG/DNI declassification of earlier reports

A good healthy obsession!

Since it’s been a while — the investigation is now 1,403 days old — yesterday I decided to nag the IG office.

They were mum on when we might finally see the report. Instead of offering details, they directed me to their new (apparently brand spanking new) “in the interest of transparency” page on their ongoing work.

It shows the long-promised report, still focusing on Section 215 use through 2009, as well as NSLs and pen register.

Use of National Security Letters, Section 215 Orders, and Pen Register and Trap-and-Trace Authorities under FISA from 2007 through 2009

The OIG is again examining the FBI’s use of NSLs and Section 215 orders for business records. This review is assessing the FBI’s progress in responding to the OIG’s recommendations in its first and second reports on the FBI’s use of NSLs and its report on the FBI’s improper use of exigent letters and other informal means to obtain telephone records. A focus of this review is the NSL subsystem, an automated workflow system for NSLs that all FBI field offices and headquarters divisions have been required to use since January 1, 2008, and the effectiveness of the subsystem in reducing or eliminating noncompliance with applicable authorities. The current review is also examining the number of NSLs issued and Section 215 applications filed by the FBI between 2007 and 2009, and any improper or illegal uses of these authorities. In addition, the review is examining the FBI’s use of its pen register and trap-and-trace authority under FISA.

But it also shows a report not mentioned in Michael Horowitz’ last report.

A report on the dragnet.

Bulk Telephony Review

The OIG is reviewing the FBI’s use of information derived from the National Security Agency’s (NSA) collection of telephony metadata obtained from certain telecommunications service providers under Section 215 of the Patriot Act. The review will examine the FBI’s procedures for receiving, processing, and disseminating leads the NSA develops from the metadata, and any changes that have been made to these procedures over time. The review will also examine how FBI field offices respond to leads, and the scope and type of information field offices collect as a result of any investigative activity that is initiated. In addition, the review will examine the role the leads have had in FBI counterterrorism efforts.

In truth, this investigation may not be all that distinct from the known PATRIOT authorities investigation. The minimization procedures for both – and therefore the way the information gets used, an issue central to both investigations — appear to be the same. And to the extent that the number of 215 orders with minimization procedures has been growing since 2010 indicates the FBI is collecting other information in bulk, the programs may well interrelate.

At first, I thought that this investigation, with the very significant exception of the way the dragnet serves to identify informants, might not reveal anything that problematic. Upon review, I’m not so sure. I’ll explain why in a follow-up report.

The one big difference between the two investigations, however (and I’ll discuss this at more length in the follow-up), is that dragnet investigation, unlike the PATRIOT Authority one, appears not to be time delimited. Whereas the older investigation only looks at practices through 2009, the dragnet investigation appears to be examining on-going practices. It seems to be investigating all the 215-related issues identified by Pat Leahy that the IC IG should investigate that come under DOJ’s jurisdiction.

So bad news good news! DOJ is still, 1,403 days later, investigating how the FBI used PATRIOT Act authorities 5 years ago, meaning more recent developments are not getting much attention.

But there is a potentially related investigation looking at what the FBI ingests from the phone dragnet (at least the small part relating to Section 215) right now.

The DOJ Inspector General’s Difficulties Getting Grand Jury Information

I’m about to do a series of posts on several investigations of DOJ’s Inspector General, Michael Horowitz.

Before I do that, however, I want to call attention to Horowitz’ recent complaints — most notably at a Senate Appropriations Hearing on April 3 — about limits on his ability to get grand jury information.

In the exchange above, Senator Richard Shelby asked Horowitz about the problem.

Shelby: Do you believe that you, the Inspector General of the Department of Justice, should have to seek approval of the Attorney General to access grand jury documents or any documents relevant to ongoing investigations?

Horowitz: I don’t, Senator. It’s inconsistent in my view with the–

Shelby: With your mandate, is it?

Horowitz: Correct–

Shelby: Because even though it’s the Justice Department, but it could be any department, if you have to go to the head of the department — the Secretary — for example, cabinet level position to approve what you’re seeking, it seems that could be, under dire circumstances, an impediment to doing your job.

Horowitz: Well, and ultimately, that’s correct, and ultimately, the letters that we’ve gotten from the Attorney General and Deputy Attorney General giving us access have focused on finding that the review was important to their oversight of the department. The Act sets it up such a way that oversight decisions should be made by Inspectors General not by the Secretaries or cabinet heads.

Horowitz had described the problem in his testimony to the Senate Appropriations Committee as well (and he mentioned Fast & Furious, to be sure to get Republicans to take notice).

However, there have been occasions when our office has had issues arise with timely access to certain records due to the Department’s view that access was limited by other laws. For example, issues arose in the course of our review of Operation Fast and Furious regarding access to grand jury and wiretap information that was directly relevant to our review. Similar issues arose during our ongoing review of the Department’s use of Material Witness Warrants. Ultimately, in each instance, the Attorney General or the Deputy Attorney General provided the OIG with permission to receive the materials because they concluded that the two reviews were of assistance to them. The Attorney General and Deputy Attorney General have also made it clear that they will continue to provide the OIG with the necessary authorizations to enable us to obtain records in future reviews, which we of course appreciate. However, requiring an Inspector General to rely on permission from Department leadership in order to review critical documents in the Department’s possession impairs the Inspector General’s independence and conflicts with the core principles of the Inspector General Act.

We have had similar issues raised regarding our access to some other categories of documents.

And the issue came up when Holder testified to the House Judiciary Committee the following week (as I said, mentioning Fast & Furious is like catnip for Republicans).

Horowitz sure seems intent on drawing immediate attention to this issue, which I agree is pretty significant.

As I will show, Horowitz is currently conducting at least two investigations that will or already do require fairly broad access to grand jury investigations. I wouldn’t be surprised if the two things were connected.

A Guide to John Rizzo’s Lies, For Lazy Journalists

By my count, John Rizzo completes his first lie in his purported “memoir,” Company Man, at the 64th word:

55: Zubaydah

56: was

57: a

58: senior

59: figure

60: in

61: the

62: Al

63: Qaeda

64: hierarchy

Zubaydah complained in his diary (see page 84) before he was captured in 2002 that he was being called Osama bin Laden’s heir when he wasn’t even a member of al Qaeda. And in his Combatant Status Review Board hearing in 2007 (see page 27), Zubaydah described his interrogators admitting he wasn’t Al Qaeda’s number 3, not even a partner. And in a 2009 habeas document the government calls Zubaydah an Al Qaeda affiliate, not a member (see 35 to 36 and related requests).

And yet Rizzo tells this lie right in the first paragraph of his book.

Granted, I’m more sympathetic to this lie than many of Rizzo’s other lies. I understand why he must continue telling it.

Back in 2002, Rizzo told John Yoo that Abu Zubaydah was a top al Qaeda figure during the drafting of the August 1, 2002 Bybee Memo authorizing torture. And based on that information, Yoo wrote,

As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization, with which the United States is currently engaged in an international armed conflict following the attacks on the World Trade Center and the Pentagon on September 11, 2001.

[snip]

Our advice is based upon the following facts, which you have provided to us. We also understand that you do not have any facts in your possession contrary to the facts outlined here, and this opinion is limited to these facts. If these facts were to change, this advice would not necessarily apply.

[snip]

Zubaydah, though only 31, rose quickly from very low level mujahedin to third or fourth man in al Qaeda. He has served as Usama Bin Laden’s senior lieutenant.

If Rizzo were to admit that the representations he made to Yoo back in 2002 were false, then the legal sanction CIA got to conduct torture would crumble.

And unlike a lot of the lies CIA — and John Rizzo in particular — told DOJ during the life of the torture program, I’m not absolutely certain CIA knew this one to be a lie when they told it. CIA (and FBI) definitely believed Zubaydah was a high ranking al Qaeda figure when they caught him. In his CSRT, Zubaydah describes admitting he was al Qaeda’s number 3 under torture. Though it’s not clear whether that was the torture that took place before or after the memo authorizing that torture got written, raising the possibility that CIA presented lies Zubaydah told under torture to DOJ to get authorization for the torture they had already committed. But by the time of the memo, CIA had also had 4 months to to read Zubaydah’s diaries, which make such matters clear (and had it in their possession, so that by itself should invalidate the memo). So they should have and probably did know, but I think it marginally conceivable they did not.

Still, that doesn’t excuse journalists who have these facts available to them yet treat Rizzo as an honest interlocutor, as James Rosen is only the latest in a long line of journalists to do.

So as a service to those journalists who aren’t doing the basic work they need to do on this story, I thought I’d make a list of the documented lies Rizzo tells just in the first 10 pages of his “memoir.” These don’t include items that may be errors or lies. These don’t include everything that I have strong reason to believe is a lie or that we know to be lies but don’t yet have official documentation to prove it. They include only the lies that are disproven by CIA and other official documents that have been in the public domain for years.

These lies, like Rizzo’s lie about Abu Zubaydah’s role in 9/11, also serve important purposes in the false narrative the torturers have told.

I’ve gone through this exercise (I’m contemplating a much longer analysis of all the lies Rizzo told, but it makes me nauseous thinking about it) to point out that any journalist who treats him as an honest interlocutor, accepting his answers — he made some of the same claims to Rosen as he made here — as credible without real challenge is just acting as a CIA propagandist.

Don’t take my word for it — take the CIA’s word, as many of Rizzo’s claims are disproven by CIA’s own documents!


(1) Abu Zubaydah was not CIA’s first significant “catch.” Ibn Sheikh al-Libi was, though the CIA outsourced his torture to the Egyptians.

(3) Correspondence describes tapes of Abu Zubaydah’s torture in April 2002, not July 2002, as Rizzo claims. (see PDF 1)

(3-4) Obviously, CIA had another option besides torture: to let the FBI continue interrogating Zubaydah. Even if you don’t believe FBI had the success they claim to have had, they were an alternative that Rizzo makes no mention of.

(4) The first torture memo was not the August 1, 2002 one. Yoo wrote a shorter fax on July 13, 2002, which (according to the OPR Report) is actually the memo CTC’s lawyers relied on for their guidance to the torturers.

(5) Jose Rodriguez did not decide to destroy the tapes in October; he decided on September 5, the day after first briefing Nancy Pelosi on torture (without having told her they had already engaged in it).

(5) CIA did not follow the guidelines laid out in the Bybee memo for waterboarding, as CIA’s IG determined in 2004, and at least by the time the CIA IG reviewed the tapes, there was a great deal censored via damage, turning off the camera, or taping over of the content.(see PDF 42 and this post)

(6) The Gang of Eight was not briefed in 2002; only the Gang of Four (the Intelligence Committee heads) was. According to CIA’s own records, only one Congressional leader got a timely briefing, Bill Frist in 2004 (though Pelosi was briefed as HPSCI Ranking Member in 2002).

(8) John McPherson did not review the tapes after Christmas, 2002; he reviewed them about a month earlier. (see this post and linked underlying documents)

(8) Jay Rockefeller was not briefed in January 2003; only a staffer of his was. See this post for all the lies they told Pat Roberts in that briefing.

(9) While John Helgerson did not write about techniques that had not been authorized, he did describe that the waterboard as performed did not follow the guidelines given by DOJ. (see PDF 42) Rizzo also doesn’t note Helgerson’s observations about the tampering done to the tapes, which may have hidden unauthorized techniques.

(10) It is false that the 9/11 Commission Report relied heavily on Abu Zubaydah’s interrogations. They are cited just 10 times, and at least one of those was not corroborated.

Will Illegality of Nashiri Torture Get Exposed?

Carol Rosenberg reports the very big news that Judge James Pohl has ordered the government to turn over to Abd al Rahim al-Nashiri’s lawyers top secret information on  the torture their client endured.

The judge’s order instructs prosecutors to provide nine categories of closely guarded classified CIA information to the lawyers — including the names of agents, interrogators and medical personnel who worked at the so-called black sites. The order covers “locations, personnel and communications” as well as cables between the black sites and headquarters that sought and approved so-called enhanced interrogation techniques, the two sources said.

It does not, however, order the government to turn over Office of Legal Counsel memos that both blessed and defined the so-called Torture Program that sent CIA captives to secret interrogations across the world after the Sept. 11, 2001 attacks — out of reach of International Committee of the Red Cross delegates.

“It’s a nuclear bomb that may shut down the case,” said one person who read the order and is not a part of the Cole case.

I find Pohl’s decision to order this in Nashiri’s case whereas he has not made equivalent orders in the 9/11 case of particular interest. Perhaps he will once public releases back WaPo’s report that CIA subjected Ammar al-Baluchi to ice drowning not sanctioned by any DOJ memo.

But in Nashiri’s case, we have reason to believe that CIA realized right away they had broken the law with Nashiri. His treatment generated the referral to CIA IG John Helgerson. And the only technique John Yoo rejected was mock burial, which may have implications for the mock execution Nashiri endured.

I’m also quite interested in two other details. First, there are conflicting reports about how long Nashiri was subject to torture in in the UAE. I’m curious if this is part of the chronology at issue.

And finally, remember that even Papa Dick Cheney and his daughter don’t claim waterboarding worked with Nashiri. We’ve never learned why not, though there are hints he may have had medical problems with the waterboard. Which makes Pohl’s order about the doctors present particularly interesting too.

Is This the Missing WikiLeaks PayPal Order?

As I noted in this post, the declaration submitted in EFF’s FOIA for Section 215 by ODNI’s Jennifer Hudson is remarkably revealing. I’m particularly intrigued by these comments about the financial dragnet order released on March 28.

A FISC Supplemental Order in BR 10-82, dated November 23, 2010 and consisting of two pages, has been withheld in part to protect certain classified and law enforcement sensitive information. The case underlying BR 10-82 is an FBI counterterrorism investigation of a specific target. That investigation is still pending. Here, in the course of a pending counterterrorism investigation, the FBI sought authorization under the FISA to obtain financial records, under the FISA’s business records provision, pertaining to the target of the investigation and in fact obtained such authorization.

[snip]

Here, in the course of a pending counterterrorism investigation, the FBI sought authorization under the FISA to obtain certain financial records. The FISC Supplemental Order, which was issued in relation to its authorization for such collection, was thus compiled for law enforcement purposes, in furtherance of a national security investigation within the FBI’s authorized law enforcement duties.

[snip]

Here, the FBI has determined that the release of the final paragraph of the order, which describes certain requirements reflecting the FBI’s particular implementation of the authority granted by the FISC, could reasonably be expected to adversely impact the pending investigation and any resulting prosecutions. Release of this paragraph would reveal the specific and unique implementation requirements imposed on the FBI under this FISA-authorized collection during a particular time period. It is unclear what and how much the target might already know about the FBI’s investigation. However, as more fully explained in my classified ex parte, in camera declaration, there is reason to believe that the target or others knowledgeable about the nature and timing of the investigation could piece together this information, the docket number, the dates of the collection, and other information which has already been released or deduced to assemble a picture that would reveal to the target that the target was the subject of a particular type of intelligence collection during a specific time period, and by extension, that the target’s associates during that period may have been subject to similar intelligence collections. This could lead the target to deduce the scope, focus, and direction of the FBI’s investigative efforts, and potentially any gaps in the collections, from which the target could deduce times when the target’s activities were “safe.” [my emphasis]

The bolded section says that certain people — the target, but also “others knowledgeable about the nature and timing of the investigation” — could put the financial dragnet request together with other information released or deduced to figure out that the target and his associates had had their financial data collected.

Gosh, that’s like waving a flag at anyone who might be “knowledgeable about the nature of the investigation.”

What counterterrorism investigation has generated sufficient attention such that not only the target, but outsiders, would recognize this order pertains the investigation in question? The investigation would be:

  • A counterterrorism investigation
  • In relatively early stages on November 23, 2010
  • Used financial records in a potentially novel way, perhaps to identify affiliates of the target
  • Still going on

The CIA & etc. Money Order Orders

One obvious possibility is the generalized CIA investigation into Western Union and international money transfers reported by WSJ and NYT last year. While both stories said the CIA got these orders, I suggested it likely that FBI submitted the orders and disseminated the information as broadly as FBI’s information sharing rules allowed, not least because CIA has no analytical advantage on such orders, as NSA would have for the phone dragnet.

There are two reasons this is unlikely. First, there’s the timing. The WSJ version of the story, at least, suggested this had been going on some time, before 2010. If that’s the case, then there’s no reason to believe a new order in 2010 reviewed this issue. And while I don’t think the 2010 order necessarily indicates the first financial 215 order (after all, it took 2.5 years before FISC weighed the equivalent question in the phone dragnet), it is unlikely that this order comes from an existing program.

That’s true, too, because this seems to be tied to a specific investigation, rather than the enterprise counterterrorism investigation that underlies the phone dragnet (and presumably the CIA program). So while this practice generated enough attention to be the investigation, I doubt it is.

The Scary Car Broker Plot

Then there’s what I call the Scary Car Broker Plot, which I wrote about here. Basically, it’s a giant investigation into drug trafficking from Colombia through Western Africa that contributes some money to Hezbollah and therefore has been treated as a terror terror terror investigation when in reality it is a drug investigation. Treasury named Ayman Joumaa, the ultimate target of that investigation, a Specially Designated Trafficker in February 2011, so presumably the investigation was very active in November 2010, when FISC issued the order. The case’s domestic component involves the car broker businesses of a slew of (probably completely innocent) Lebanese-Americans, who did business with the larger network via wire transfers.

The Car Buyers also received wire transfers for the purpose of buying and shipping used cars from other account holders at the Lebanese Banks (“Additional Transferors”), including the OFAC-designated Phenicia Shipping (Offshore); Ali Salhab and Yasmin Shipping & Trading; Fadi Star and its owners, Mohammad Hammoud and Fadi Hammoudi Fakih for General Trade, Khodor Fakih, and Ali Fakih; and Youssef Nehme.

Perhaps most interesting, the government got at these businessmen by suing them, rather than charging them, which raised significant Fifth Amendment Issues. So between that tactic and Joumaa’s rather celebrated status, I believe this is a possible case. And the timing — from 2007 until 2011, when Joumaa got listed — would certainly make sense.

All that said, this aspect of the investigation was made public in the suit naming the car brokers, so FBI would be hard-pressed to claim that providing more details would compromise the investigation.

HSBC’s Material Support for Terrorism

Then there’s a very enticing possibility: that this is an investigation into HSBC for its material support for terrorism, in the form of providing cash dollars to the al Rajhi bank which went on to support terrorist attacks (including 9/11).

HSBC’s wrist slap for money laundering is one of the most noted legal atrocities in recent memory, but most people focus on the bank’s role laundering money for drug cartels. Yet as I’ve always emphasized, HSBC also played a key role in providing money to al Qaeda-related terrorists.

As the Permanent Subcommittee on Investigations’ report made clear, HSBC’s material support for terror continued until 2010.

After the 9-11 terrorist attack in 2001, evidence began to emerge that Al Rajhi Bank and some of its owners had links to financing organizations associated with terrorism, including evidence that the bank’s key founder was an early financial benefactor of al Qaeda. In 2005, HSBC announced internally that its affiliates should sever ties with Al Rajhi Bank, but then reversed itself four months later, leaving the decision up to each affiliate. HSBC Middle East, among other HSBC affiliates, continued to do business with the bank.

Due to terrorist financing concerns, HBUS closed the correspondent banking and banknotes accounts it had provided to Al Rajhi Bank. For nearly two years, HBUS Compliance personnel resisted pressure from HSBC personnel in the Middle East and United States to resume business ties with Al Rajhi Bank. In December 2006, however, after Al Rajhi Bank threatened to pull all of its business from HSBC unless it regained access to HBUS’ U.S. banknotes program, HBUS agreed to resume supplying Al Rajhi Bank with shipments of U.S. dollars. Despite ongoing troubling information, HBUS provided nearly $1 billion in U.S. dollars to Al Rajhi Bank until 2010, when HSBC decided, on a global basis, to exit the U.S. banknotes business. HBUS also supplied U.S. dollars to two other banks, Islami Bank Bangladesh Ltd. and Social Islami Bank, despite evidence of links to terrorist financing. Each of these specific cases shows how a global bank can pressure its U.S. affiliate to provide banks in countries at high risk of terrorist financing with access to U.S. dollars and the U.S. financial system. [my emphasis]

Now, the timing may match up here, and I’d really love for a bankster to be busted for supporting terrorism. Plus, an ongoing investigation into this part of HSBC’s crimes might explain why Lanny Breuer said nothing about it when he announced the settlement with HSBC. But I doubt this is the investigation. That’s because former Treasury Undersecretary for Terrorism and Financial Intelligence Stuart Levey moved to HSBC after this point in time, in large part in a thus-far futile attempt to try to clean up the bank. And I can’t imagine a lawyer could ethically take on this role while (presumably) knowing about such seizures. Moreover, as the PSI report made clear, there are abundant other ways to get at the kind of data at issue in the HSBC investigation without Section 215 orders.

Who am I kidding? This DOJ won’t ever really investigate a bank!

WikiLeaks the Aider of Al Qaeda 

I realize these three possibilities do not exhaust the list of sufficiently significant and sufficiently old terrorism investigations that might be the target named in the order. So I’m happy to hear other possibilities.

But there is one other investigation that is a near perfect fit for almost all the description provided by Hudson: WikiLeaks.

As I’ve reported, EPIC sued to enforce a FOIA for records the FBI has on investigations into WikiLeaks supporters. The FOIA asked for and FBI did not deny having, among other things, financial records.

All records of any agency communications with financial services companies including, but not limited to Visa, MasterCard, and PayPal, regarding lists of individuals who have demonstrated, through monetary donations or other means, support or interest in WikiLeaks.

In addition to withholding information that they apparently have because of an ongoing investigation (though the Judge has required the government to confirm it is still ongoing by April 25), the government also claimed exemption under a statute that they bizarrely refused to name. I speculated four months before Edward Snowden’s leaks that that statute was Section 215.

And the timing on this investigation is a perfect fit. On November 3, 2010, Joint Terrorism Task Force Officer Darin Louck seized David House’s computer as he came across the border from Mexico. While House refused to give the government his encryption passwords, the seizure makes it clear FBI was targeting WikiLeaks supporters. Then, according Alexa O’Brien, on November 21, 2010, a report on the upcoming Cablegate release was included in President Obama’s Daily Brief. The government spent the weeks leading up to the first releases in Cablegate on November 28, 2010 scrambling to understand what might be in them. On December 4, PayPal started refusing donations to WikiLeaks. And on December 6, Eric Holder stated publicly he had authorized extraordinary investigative measures “just last week.”

Nor would he say whether the actions involved search warrants, requests under the Foreign Intelligence Surveillance Act, which authorizes wiretaps or other means, describing them only as “significant.”

“I authorized just last week a number of things to be done so that we can, hopefully, get to the bottom of this and hold people accountable as they should be,” he said.

December 6 was a Monday and technically Tuesday, November 23 would have been 2 weeks earlier, just 2 days before Thanksgiving. But a Section 215 order doesn’t require AG approval, and indeed, dragnet orders often generate leads for more intrusive kinds of surveillance.

Moreover, according to Hudson’s declaration, this order did precisely what EPIC’s FOIA seems to confirm FBI did, investigate not just Julian Assange, but also his associates (also known as supporters), including WikiLeaks donors.

The only thing — and it is a significant thing — that would suggest this guess is wrong is Hudson’s description of this as a “counterterrorism” investigation and not a “counterespionage” investigation (which is how Holder was discussing it in December 2010).

But that doesn’t necessarily rule WikiLeaks out. As noted above, already by early November 2010, the FBI had JTTF agents involved in the investigation. And central to the government’s failed claim that Chelsea Manning had aided the enemy was that she had made the Afghan war logs available knowing (from the DIA report she accessed) that the government worried about al Qaeda accessing such things, and that some Afghan war logs were found at Osama bin Laden’s compound. So the government clearly has treated its WikiLeaks investigation as a counterterrorism investigation.

Moreover, all Hudson’s declaration claims is that the government currently considers this a counterterrorism investigation. Section 215 can be used for counterintelligence investigations (as I’ve noted over and over). Since the Osama bin Laden raid revealed al Qaeda had accessed cables, the government has maintained that it does involve al Qaeda. So it may be that Hudson’s reference to the investigation as a counterterrorism investigation only refers to its current status, and not the status used to obtain the order in 2010.

That said, Hudson also provided a classified version of her statement to Judge Yvonne Gonzales Rogers, and I can’t imagine she’d try to pitch the WikiLeaks case as a counterterrorism one if a judge actually got to check her work. But you never know!

It’s likely that I’m forgetting a very obviously publicly known counterterrorism investigation.

But I think it possible that either the Scary Car Broker plot or WikiLeaks is the target named in the order.

Dangerous Censored Documents, in Soviet Russia and War on Terror America

Yesterday, in announcing the public release of documents relating to CIA’s publication of a Russian edition of Dr. Zhivago, the CIA bragged (justifiably) about its Cold War success in making books Warsaw Pact governments had banned available within those countries.

In a memo dated April 24, 1958 a senior CIA officer wrote: “We have the opportunity to make Soviet citizens wonder what is wrong with their government when a fine literary work by the man acknowledged to be the greatest living Russian writer is not even available in his own country [and] in his own language for his people to read.”

[snip]

Obtaining, publishing, and distributing banned books like Doctor Zhivago was an important Cold War-era success story for the CIA.

Even as CIA was declassifying the documents underlying Peter Finn’s book on this topic, the 9/11 Gitmo trial was being stalled, once again, by issues arising from the Court’s fragile Constitutional foundation.

The issue, this time, makes for ironic comparison with CIA’s boasts of making banned texts available to societies where the government was too fragile to release such texts.

On Monday, the 9/11 defense lawyers revealed that their Defense Security Officer had been recruited as an informant by the FBI as part of an investigation into how an unclassified 36-page tract written by Khalid Sheikh Mohammed became available to the HuffPo.

The Gitmo prosecutors claim to have no knowledge of the FBI investigation.

At Monday’s hearing, the judge pointedly asked the prosecutor, Army Brig. Gen. Mark Martins, if his prosecution team was “aware of this visit” by two agents to the bin al Shibh team member’s house on Sunday, April 6, to question him after church. At issue, in part, was how the Huffington Post and Britain’s Channel 4 television got a copy of the Mohammed commentary.

“No, we were not,” Martins replied — even before the judge had finished his question.

[snip]

At the prison, spokesman Navy Cmdr. John Filostrat on Monday night replied to a question of whether the prison staff asked the FBI to investigate the document this way: “I am unaware of any investigation and won’t get into ongoing legal proceedings, anyway.”

Tuesday, a Pentagon spokesman said that while Martins did give the FBI the copy of the Mohammed document neither the chief prosecutor “nor the prosecution team had any idea that an investigation was launched.”

“He gave it to the FBI to maintain as evidence in event that there could at some point be an investigation,” said Army Lt. Col. Todd Breasseale, “and in the event that it is determined that releasing [Mohammed’s 36-page commentary] was unlawful.”

Nevertheless, it appears someone requested an investigation into the disclosure. And DOJ’s part of the prosecution team suggests the judge would infringe on Executive Branch privileges if he investigates the FBI investigation.

Separately, a lead case prosecutor, Ed Ryan of the Justice Department warned the judge against asking to question the FBI agents who visited a defense team member.

“Your Honor is suggesting that you want to investigate an ongoing investigation. There are numerous government privileges that would be at stake,” Ryan said at the hearing. “I think the commission would be greatly mistaken to go down a road of trying to look inside an ongoing investigation being conducted by the Federal Bureau of Investigation if, in fact, one exists.”

Defense Attorneys also complained that a (perhaps now former) member of the Prosecution team is the Chief of Staff to FBI Deputy Director Mark Giuliano.

And then finally, there’s a member of the trial team, Ms. Baltes, who is also — who also serves as the Chief of Staff to the Deputy Director of the FBI. And I appreciate counsel’s unequivocal statement that the prosecution was not aware of this investigation, did not know — did not know that an investigation was taking place and did not direct FBI agents to go and try to penetrate Mr. Harrington’s team, but somebody did, and somebody at the FBI did. And I don’t think it’s too much of a leap to imagine that when a member of the trial team has a dual role as the Chief of Staff to the Deputy Director of the FBI, that there could be an interface there, and I think it would be appropriate to examine Ms. Baltes as well.

Joanna Baltes happens to have been the lawyer who, in January, refused to admit in public that the CIA had installed a means to censor Gitmo proceedings, unbeknownst to the Judge. Is she, once again, answering to the CIA above and beyond her obligations to a court purportedly delivering independent justice?

So our attempt to hold the perpetrators for 9/11 responsible for their crimes has once again ground to a halt as the Judge investigates whether and why (and at whose behest) the FBI is investigating the release of KSM’s unclassified writings.

Americans might ask, like Russians before them, “wonder what is wrong with their government” that we must delay justice in the 9/11 attack because someone made a shitty tract from KSM publicly available.

Don’t get me wrong. Unlike Boris Pasternak’s novel, KSM’s tract is not literature, not even close. Continue reading

Hot and Cold Running Bandar

Yesterday, just weeks after the time Al Arabiya announced Prince Bandar bin Sultan would resume his duties as head of Saudi intelligence (and therefore the mastermind of the Saudi-backed effort to oust Bashar al-Assad), Bandar was replaced by a little-known deputy.

He had resumed his position in March, just two days before the President visited the Kingdom.

Prince Bandar bin Sultan is on his way back to Riyadh where he will resume his tasks as head of Saudi Intelligence,reported news portal NOW Lebanon.

An informed Saudi source confirmed the report to Al Arabiya News.

“This is without doubt bad news for Tehran, Damascus and Hezbollah, particularly that anti-Saudi media has been propagating false information for the past two months that Prince Bandar’s absence has been due to his dismissal and due to a Saudi decision to back away from its policies regarding the regional conflict,” said the source in Riyadh.

The source confirms that Prince Bandar has actually been away due to medical reasons, however, he has resumed his activities this week from the Moroccan city of Marrakesh; where he has been recovering and where he has met with former Lebanese PM Saad Hariri and Crown Prince of Abu Dhabi, Sheikh Mohammad bin Zayed.

But today he’s out.

Saudi Arabia’s intelligence chief Prince Bandar bin Sultan has been relieved of his post at his request, the official Saudi Press Agency reported Tuesday.

The royal decree announcing that Prince Bandar was stepping down as president of General Intelligence gave no reasons for the move. He has been replaced by General Yousef Al Idrissi, the decree said.

I’m not sure anyone knows what these tea leaves mean. It may be that the “shoulder” injury Bandar had been treated for remains a serious health issue. It may be that — as one piece suggested — he retains some power here and has not ceded it back to Mohammed bin Nayef, who had taken over before Bandar’s return in March. It may be that this and King Abdullah’s designation of Prince Muqrin bin Abdulaziz as second in succession were done to time with Obama’s visit, to signal that America’s more favored successor, Mohammed bin Nayef, was not going to take over any time soon.

But it also comes among two other developments that may be related. First, since about the beginning of the year and increasingly in recent weeks, the Saudis are actually cracking down on terrorism, both real — including those who went to fight in Syria — and imagined. Perhaps the former, too, was a show for the US. But it did seem to reflect some concerns that Saudi efforts in Syria were increasing security concerns for the Kingdom (as well as other countries in the region and not).

Perhaps most interesting, however, is that the same day that Bandar got “sacked” videos started showing opposition figures in Syria with US made anti-tank missiles, which is the kind of thing Bandar has decades of experience arranging. We’ll see whether those disappear like Bandar or represent a new escalation of efforts to oust Assad.

The Terror Networks and the Hate Criminals

In response to Frazier Glenn Miller’s arrest in the murder of 3 people at Jewish targets the other day, Peter Bergen reminds that white supremacist terrorists have been more dangerous in recent years than Islamic terrorists.

Now let’s do the thought experiment in which instead of shouting “Heil Hitler” after he was arrested, the suspect had shouted “Allahu Akbar.” Only two days before the first anniversary of the Boston Marathon bombings, this simple switch of words would surely have greatly increased the extent and type of coverage the incident received.

Yet the death toll in the shootings in Kansas is similar to that of last year’s Boston Marathon bombings, where three people were killed and the suspects later killed a police officer as they tried to evade capture. (Many more, of course, were also wounded in the Boston attacks; 16 men, women and children lost limbs.)

In fact, since 9/11 extremists affiliated with a variety of far-right wing ideologies, including white supremacists, anti-abortion extremists and anti-government militants, have killed more people in the United States than have extremists motivated by al Qaeda’s ideology. According to a count by the New America Foundation, right wing extremists have killed 34 people in the United States for political reasons since 9/11. (The total includes the latest shootings in Kansas, which are being classified as a hate crime).

By contrast, terrorists motivated by al Qaeda’s ideology have killed 23 people in the United States since 9/11.

But, as Bergen notes, thus far these murders have been called “hate crimes,” not terrorism.

That’s particularly interesting given this remarkable report from HuffPo’s Ryan Reilly, while he was still at TPM. Back in 2012, Reilly interviewed Miller about his contacts with Kevin Harpham, the MLK bomber. As Reilly notes, Federal prosecutors had used Harpham’s contacts with Miller to argue for harsher sentencing.

Less than a week after 36-year-old Kevin Harpham was arrested for allegedly attempting a racially motivated bombing of a 2011 Martin Luther King Jr. parade in Spokane, white supremacist leader Glenn Miller sent him a letter offering to help start a legal fund on his behalf.

“Keep your chin up and stay strong,” Miller wrote in a letter dated March 14, telling Harpham that he and other members of an online white supremacist forum believed he’d “been set up.”

[snip]

Federal prosecutors used Miller’s jailhouse letter and Harpham’s response — in which he said he might have Miller screen individuals as he looked for “someone to house sit for a while” – as one of the factors that “supports the imposition of a sentence that will maximize the time the Defendant is incarcerated and subject to judicial oversight.”

Evidently Harpham’s lawyers soon informed him it probably wasn’t a good idea to be sending letters to a well-known white supremacist while in jail accused of a hate crime, as he didn’t respond to any of Miller’s follow up letters.

“He’s kind of let me know he doesn’t want anything to do with me,” Miller said. “It’s not in his self interest to associate with me, and I can understand that, can’t you?” [my emphasis]

As I noted at the time, the FBI called Harpham a “lone wolf” “hate criminal.” That, in spite of the fact that the crime to which he plead guilty — attempted use of a WMD — is one of FBI’s favorite “terrorist” crimes with which to entrap young Muslims, and in spite of the fact that Harpham’s contacts with Miller and his abundant online activity showed him to be a part of a network sharing the same ideology.

Harpham was one of the few white people convicted of a terrorist enhancement crime (the 3 anarchists tied to Occupy who discussed bombing a bridge were also found guilty on WMD charges; both the Hutaree and Schaeffer Cox were initially charged with terrorist-associated crimes, but not found guilty of them; see this a post for Dianne Feinstein’s catalog of such crimes). Whether the FBI called Harpham one or not, he is technically a terrorist.

Just two years ago, they made a big deal out of Harpham’s ties to Miller and used that to substantiate the severity of Harpham’s crimes. Yet not only did the FBI not catch Miller in a sting before he killed. But they’re not even calling Miller a terrorist … yet.

Miller and Harpham were participants in the same kind of network the FBI uses, if they’re Muslim, to identify targets for increased law enforcement attention. Harpham was convicted as a terrorist, in part, based on his ties to Miller.

And yet no one stopped Miller before he (allegedly) killed.

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Emptywheel Twitterverse
bmaz @AdamSerwer There have to be a couple of Andrews on the worst list, no?
13mreplyretweetfavorite
bmaz @MarkSZaidEsq @BradMossEsq @Thomas_Drake1 Lastly, while we just have some fund diffs on this+Twitter truncated medium, appreciate discussion
29mreplyretweetfavorite
bmaz @MarkSZaidEsq @BradMossEsq @Thomas_Drake1 Wait, what happened to the tweet from girl who said I was just like the crazy militant NV cow guy?
31mreplyretweetfavorite
bmaz @seanpmcg Never there, but have heard about it. Saw them here couple of times long, long ago.
33mreplyretweetfavorite
bmaz @seanpmcg Other than that, just see what pops up.
38mreplyretweetfavorite
bmaz @seanpmcg Here is the special list for the National event today http://t.co/ZJ73JgW14l I'm looking at the Allman Bros Beacon Theater
39mreplyretweetfavorite
JimWhiteGNV RT @mattaikins: More polling stations failed to open on election day (1165) this year than in 2010 (1115).
39mreplyretweetfavorite
JimWhiteGNV RT @mattaikins: More violence, more complaints of fraud, more closed polling stations-basically the opposite of what every media outlet was…
40mreplyretweetfavorite
bmaz I am going to drive to National Record Store Day in a Prius #MaximumGranola
59mreplyretweetfavorite
bmaz @MarkSZaidEsq @BradMossEsq @Thomas_Drake1 I don't have a problem w/prosecution; I have a problem w/cravenly selective prosecution.
1hreplyretweetfavorite
bmaz @MarkSZaidEsq @BradMossEsq @Thomas_Drake1 Morally or legally? When govt is out of control+refuses to adhere to its own law, then so be it.
1hreplyretweetfavorite
bmaz @MarkSZaidEsq @BradMossEsq @Thomas_Drake1 Reggie Walton's rulings indicate at least some of it did.
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