The Guardian uses an eye-popping stat from a hacker journalist–that a quarter of all hackers are FBI moles–to cement a a story about the FBI infiltrating hacker groups.

The underground world of computer hackers has been so thoroughly infiltrated in the US by the FBI and secret service that it is now riddled with paranoia and mistrust, with an estimated one in four hackers secretly informing on their peers, a Guardian investigation has established.

Cyber policing units have had such success in forcing online criminals to co-operate with their investigations through the threat of long prison sentences that they have managed to create an army of informants deep inside the hacking community.

[snip]

So ubiquitous has the FBI informant network become that Eric Corley, who publishes the hacker quarterly, 2600, has estimated that 25% of hackers in the US may have been recruited by the federal authorities to be their eyes and ears. “Owing to the harsh penalties involved and the relative inexperience with the law that many hackers have, they are rather susceptible to intimidation,” Corley told the Guardian.

The number is eye-popping. But there are two details about the story I want to note. First, it suggests that the FBI is recruiting its hacker-informants after catching them hacking. Oddly, though they consider Adrian Lamo among the hackers-moles they describe (indeed, the only one they name), they don’t question whether he just turned Bradley Manning in, or whether he was a more formal informant. Moreover, they don’t note that drug abuse, not hacking, would have been the potential crime Lamo committed in the weeks preceding his turning Manning in.

Also, note what kind of recruiting the story doesn’t address? DOD recruiting. Are all these hackers going straight from FBI to work in DOD’s cyberwars? Or is DOD recruiting a different set of hackers?

As Josh Gerstein just reported, the government has decided to withdraw some evidence against Thomas Drake rather than come up with CIPA substitutions that would give Drake the ability to defend himself. At issue is “NSA’s targeting of a particular telecommunications technology,” which the government wants to hide. To avoid mentioning it, they are now withdrawing four documents entirely and redacting references to the document in two other documents.

In Gerstein’s article, Steven Aftergood cautions that this won’t necessarily help Drake avoid prosecution.

The prosecutors’ decision has echoes of the 2009 Justice Department decision to drop its long-running prosecution of two pro-Israel lobbyists after a series of adverse rulings from a federal judge in Virginia. However, in Drake’s case, no charges have been dropped, just a portion of the proof the government wanted to offer.

“From the government’s point of view, this ruling is not a reason to reconsider the prosecution. They’re not pulling back. They’re simply reordering their case,” said Steven Aftergood, a classified information expert with the Federation of American Scientists.

“In the fantasy of Drake suppoorters, the [judge’s] ruling could have been a pretext for withdrawing the prosecution, as happened in the [American Israel Public Affairs Committee] case but that’s not choice they’ve made. They’ve said, ‘We’ll go ahead and work around that obstacle,’” Aftergood added.

That may well be the case. But I’m curious to see how Drake’s lawyers respond to this. The government has been trying (somewhat unsuccessfully) to exclude documents discussing the relative merits of ThinThread over Trailblazer on relevancy and hearsay grounds, including the IG Report at issue in the case. Mind you, none of them apparently discussed this technology (the government is withdrawing its own exhibits, not objecting on CIPA grounds to Drake’s). And Judge Richard Bennett obviously thought a somewhat revelatory description of this technology was important to Drake’s defense.

Ultimately, after all, Drake is planning to argue that the reason he saved certain documents was to demonstrate the inefficacy (and probably privacy problems) of the government’s plans. By withdrawing these documents–which obviously must have been relevant to the five charged documents–are they hurting Drake’s ability to make this argument?

Only in America could the head of the public prison system who retired in shame for breaking the law himself move onto a sinecure in the private prison industry. But that appears to be what Harley Lappin has done.

Mind you, both Lappin and the Bureau of Prisons claim that Lappin’s arrest for DUI had no connection with his retirement in March.

The director of the federal Bureau of Prisons has apologized to his staff for a February DUI arrest, which came to light after his announcement last Friday that he was retiring.

Harley Lappin had made no mention in his retirement statement Friday about his brush with the law in Annapolis, Maryland, after 3 a.m. on February 26.

[snip]

BOP spokeswoman Traci Billingsley said Lappin had decided “some months ago” to retire in the spring of 2011 and that his scheduled retirement date of May 7 has not changed.

That may well be true: after all, Lappin spent less than a month in retirement before joining the Corrections Corporation of America as Vice President. (h/t G.W. Schulz)

CCA (Corrections Corporation of America) (NYSE: CXW), America’s leader in partnership corrections, announced that effective June 1, 2011, Harley G. Lappin, 55, shall serve as Executive Vice President and Chief Corrections Officer (CCO). In this role, Mr. Lappin will be responsible for the oversight of facility operations, health services, inmate rehabilitation programs, purchasing and TransCor, the Company’s wholly-owned transportation subsidiary. He succeeds Richard P. Seiter, who announced his decision to step down as CCO earlier this year, effective May 31, 2011.

The timing sort of suggests that Lappin had no intention of retiring, but instead planned all along on joining the private prison industry.

Even if it weren’t for the fact that no one imprisons as many people as the United States, this seems like a remarkably American fairy tale, not just the move from a public position of trust to a capitalist position of exploitation, but the public fall as well.

DDay already noted Peter Diamond’s op-ed withdrawing his nomination as a Fed Governor. But I wanted to emphasize one thing:

It is time for me to withdraw, as I plan to inform the White House.

It appears that this very public complaint was how Diamond informed the White House he was withdrawing–not a discrete phone call.

That’s not the normal way nominees handle communications with the White House.

To be fair, Diamond focuses all of his criticism in the op-ed on the Republicans who believe a Nobel prize winner is unqualified to serve on the Fed. The op-ed itself does not criticize the White House’s handing of the nomination.

But if it’s true that this was Diamond’s way of informing the White House, then it suggests he’s pretty damned pissed at the White House as well. As well he should be–he got the same treatment Dawn Johnsen and Goodwin Liu did, with repeated renominations but no public fight (or recess appointment).

That club of good nominees hung out to dry by this White House is growing longer.

As fatster noted, Judge Kenneth Marra has allowed the suit against Chiquita for its support of Colombian terrorists to go forward. But the ruling is fascinating, because it holds that the plaintiffs can sue for Chiquita’s involvement in torture, but not for its involvement in terrorism.

Relying in part on a 1984 Robert Bork opinion finding there was ““international law and the rules of warfare as they now exist are inadequate to cope with this new mode of conflict,” Marra ruled the Alien Tort Statute doesn’t apply to terrorism. (Note, Marra also cited more recent District Court rulings on this issue.)

So in spite of our decade-long war against terrorism, it appears corporations can support terrorism in other countries and not be held liable.

But unlike terrorism, torture, extra-judicial killing, and crimes against humanity are widely recognized under international law to qualify for the ATS, so plaintiffs can sue for Chiquita’s involvement in it.

Marra also rejected Chiquita’s claim that it could not be held liable under the Torture Victims Protection Act.

Chiquita first argues that the “‘plain reading of the TVPA strongly suggests that it only covers human beings, and not corporations.’” First Mot. at 68 (DE 93) (quoting Exxon Mobil, 393 F. Supp. 2d at 28). This limitation to individuals, Chiquita contends, bars Plaintiffs’ TVPA claims against it, a corporation. Recent Eleventh Circuit precedents, however, hold that “‘an individual’ to whom liability may attach under the TVPA also includes a corporate defendant.” Sinaltrainal, 578 F.3d at 1264 n.13; see also Romero, 552 F.3d at 1315 (“Under the law of this

Circuit, the Torture Act allows suits against corporate defendants.”). Thus, under the precedent of this Circuit, the Court rejects Chiquita’s first basis for dismissal.

Particularly gratifying, a key part of Chiquita’s liability was its intent to support AUC’s violence. Marra notes, for example, that plaintiffs had shown Chiquita supported AUC in part to quell labor unrest.

The AUC’s agreement with Chiquita involved forcing people to work using threats and illegal violence, as well as the quelling of labor and social unrest through the systematic terrorization of the population of Uraba.

[snip]

The complaints here contain sufficient “‘factual content that allows the court to draw the reasonable inference’” that Chiquita assisted the AUC with the intent that the AUC commit torture and killing in the banana-growing regions.

So in American courts, corporations like Jeppesen helping the US commit torture won’t be held liable for torture. But corporations like Chiquita helping terrorists and other governments torture may well be held liable!

WSJ reveals that some folks within the Obama Administration have finally started to weigh the possibility that our drone strikes in Pakistan do more harm than good. Unfortunately, in the fight over whether the US should rein drone strikes in, those folks appear to have lost the debate … for now.

The White House National Security Council debated a slowdown in drone strikes in a meeting on Thursday, a U.S. official said. At the meeting, CIA Director Leon Panetta made the case for maintaining the current program, the official said, arguing that it remains the U.S.’s best weapon against al Qaeda and its allies.

The result of the meeting—the first high-level debate within the Obama administration over how aggressively to pursue the CIA’s targeted-killing program—was a decision to continue the program as is for now, the U.S. official said.

[snip]

Yet an increasingly prominent group of State Department and military officials now argue behind closed doors that the intense pace of the strikes aggravates an already troubled alliance with Pakistan and, ultimately, risks destabilizing the nuclear-armed country, said current and former officials familiar with the discussions.

What’s fascinating about the article, though, is that for all the discussion of the political problems the drones are causing, there’s no discussion of how drones have served to radicalize potential terrorists.

These diplomats and officials say the deep vein of anti-Americanism that runs through Pakistani society forces its elected and military leaders, including army chief Gen. Ashfaq Parvez Kayani, to distance themselves from Washington to avoid a popular backlash.

“What’s worrying a lot of us is whether we’re turning people who should be our natural allies into our adversaries,” said a U.S. diplomat in Pakistan.

That is, this debate appears to still be focusing on whether drones make key Pakistani elites separate themselves from us. There’s not one mention, however, of people like Faisal Shahzad–the Times Square bomber–who blame drones for their turn to terrorism.

I had been predicting for weeks before Obama went to Poland that the Poles would move to quash their investigation into the black site at which KSM and others were tortured.

And sure enough, that appears to be what happened.

The first move actually happened before Obama arrived in Poland: three days before Obama got there, the AP reported that one of the two prosecutors in the investigation, Jerzy Mierzewski, had been sacked.

On Wednesday, it became clear why Mierzewski had been sacked: because he was preparing charges against the politicians who had partnered with the CIA.

Polish state prosecutors are considering bringing charges against members of the Democratic Left Alliance (SLD) for their alleged involvement in secret CIA prisons located on Polish soil between 2002-2005. The prisons were allegedly used to torture terrorist suspects from al-Qaeda.

Officials from the leftist SLD government in power at the time, including former Prime Minister Leszek Miller, may be charged with violating Poland’s constitution, helping to illegally imprison a number of people and with participating in crimes against humanity.

That’s according to documents released by daily Gazeta Wyborcza, which show that former deputy prosecutor Jerzy Mierzewski, who was recently removed from the investigation, wanted to press these charges.

And now AP reports that Poland is responding in the same way the US would: to declare state secrets and pursue the whistleblowers.

Adam Borzyszkowski, a prosecutor in Gdansk, said his office would question the reporter and editors at the newspaper due to “state secrets being leaked” from the main investigation. He said those steps come amid an ongoing 10-month investigation into other media reports that leaked sensitive information.

Back when I was reading lots of samizdat in grad school, it was clear the US genuinely served as a model for Eastern European activists (whether or not we should have been a model is another question).

I guess we still serve as such a model. Only rather than serving as a model of democracy and creativity, we’re now showing others how to use state secrets to hide torture and other crimes.

Former Gitmo prosecutor Morris Davis makes, in really powerful fashion, a point I’ve been contemplating: how does Hillary Clinton get off criticizing the torture of Syrian teenager Hamza Ali al-Khateeb or Pakistani journalist Syed Saleem Shahzad when we have done nothing to hold those who tortured Mohammed al-Qahtani accountable? (h/t Michelle Shephard)

In the fall of 2005, when I was chief prosecutor for the military commissions at Guantanamo Bay, Cuba, I sat down for a lengthy discussion with a veteran member of the prosecution team, a Marine Corps officer with an extensive background in criminal prosecution. We discussed a case that caused him concern, one he said he was not comfortable prosecuting. After describing some of the specifics of the detainee’s treatment at Guantanamo, which was documented in official records, the prosecutor said: “Sir, they fucked with him and they fucked with him until now he’s as crazy as a shit-house rat.” In an interview with Bob Woodward published in the Washington Post in January 2009, Susan Crawford, the Bush administration official who supervised the military commissions, explained why she refused to send the same case to trial when it reached her desk in the spring of 2008. “We tortured Qahtani,” she said, “His treatment met the legal definition of torture.”

The alleged torture of Hamza Ali al-Khateeb, Syed Saleem Shahzad, and Mohammed al Qahtani by government agents that signed the Convention Against Torture begs the question, is a law that is ignored worth the paper it is written on?

If we want to criticize others for their crimes, Davis argues, then we need to practice what we preach.

Who decides which obligations are truly obligatory and which means go too far to ever justify the ends? Chemical weapons may have been a fast and convenient way to defeat the Taliban and al Qaeda in the rugged Tora Bora region in late 2001 and may have killed Bin Laden a decade earlier, but is effectiveness, or that it might work, or that others do it justification to violate the Chemical Weapons Convention prohibitions and commit a war crime? If the standard is the United States decides ad hoc which commitments it will honor and which it will not then it should be honest and repudiate those it considers non-binding and the sense to stop the hypocritical criticism of others that fail to live up to its “do as we say, not as we do” example. On the other hand, if the United States means what it says about the rule of law, it has to demonstrate that it practices what it purports to preach.

And he ends by calling on decent people to reclaim our national moral compass.

Do decent human beings have the temerity to stand up and insist the law be enforced? Does the United States have the integrity to lead by example, or has the government engaging in torture become as accepted as government official lying when the truth is inconvenient? We need to find our moral compass.

Go read it.

A number of people have commented on the Obama Administration’s statement of opposition to a ban on Department of Homeland Security funding for Gitmo detainee transfers. Here’s Benjamin Wittes:

The administration just issued a Statement of Administration Policy on a DHS appropriations bill (H.R. 2017), which contains a spending restriction similar to one of the Guantanamo transfer restrictions that provoked the administration’s recent veto threat with respect to the McKeon legislation. Yet oddly, this time, there is no veto threat.

[snip]

I can think of two possible explanations beyond mere clerical error: First, and I certainly hope this is not the explanation, perhaps the administration is backing off the veto threat. Second, perhaps the transfer restrictions with respect to domestic civilian trials are only veto-worth in combination with the other (from the administration’s point of view) objectionable features of the McKeon bill but are on their own merely worthy of opposition.

In any event, it’s a little puzzling.

And here’s Josh Gerstein:

The view that Obama suddenlty toughening his line against Congressional efforts to constrain his authority to prosecute and move detainees gathered steam just last week when the administration threatened a veto of the Department of Defense Authorization bill over detainee-related provisions including one that appears to prevent any war-on-terror detainee placed in U.S. military custody from ever being transferred to the U.S.

However, the details of what precise measures or combination of measures would trigger a veto from Obama was unclear in the statement on the latest DoD bill, perhaps deliberately so. The official administration statement on the Homeland Security bill appears to indicate that a simple re-upping of the restrictions Obama signed with some complaints in December won’t be enough by itself to get a bill vetoed.

Now, I frankly agree with Josh that the Defense Authorization was designed, in part, for maximum ambiguity about what might draw a veto.

But I think there’s an even easier two-part explanation for not issuing a veto threat here.

This is the Department of Homeland Security appropriation. DHS doesn’t exactly have primary jurisdiction over detainee affairs. And all this does is reaffirm the status quo (albeit without time limits).

Now, as Daphne Eviatar has pointed out to me via email, the language purports to apply to the DHS appropriation as well as any other act.

SEC. 537

None of the funds appropriated or otherwise made available in this or any other Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions, including detaining, accepting custody of, or extending immigration benefits to, Khalid Sheikh Mohammed or any other detainee who—

(1) is not a United States citizen or a member of the Armed Forces of the United States; and

(2) is or was held on or after June 24, 2009, at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense. [my emphasis]

So I suppose Congress could argue that this language governs all appropriations bills, including DOD and DOJ appropriations that would actually come into play in detainee affairs. And if so, it would eliminate one of the loopholes the ACLU pointed out in the language in the Defense Authorization for this year, which Obama already signed, which only prohibited the use of DOD funds, but not DOJ funds.

SEC. 1032. PROHIBITION ON THE USE OF FUNDS FOR THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

None of the funds authorized to be appropriated by this Act for fiscal year 2011 may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who—

(1) is not a United States citizen or a member of the Armed Forces of the United States; and

(2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

Yet Obama’s opposition to this amendment seems like a repeat of the status quo that already exists, with the White House complaining but not vetoing the restriction.

Note, too, that unless I’m missing one of these “Statements of Administration Policy,” Obama’s official opposition to this year’s transfer authority was limited to transfers to other countries, though Holder made repeated comments about the US transfer bans being unconstitutional during the debate itself.

Restrictions on Guantanamo Detainee Transfers: The Administration strongly objects to Section 1044, which prohibits the use of Department of Defense funds to transfer individuals held at the detention facilities at Guantanamo to the countries of Afghanistan, Pakistan, Saudi Arabia, Somalia and Yemen for one year following enactment of this bill. Individual detainee transfer determinations should be made on a case-by-case basis, taking into account all factors, including the threat posed by the particular detainee, U.S. legal obligations and broader U.S. national security interests. This provision restricts the United States’ ability to make these case-by-case decisions for over seventy percent of the detainees being held at Guantanamo. By precluding transfers to these countries, section 1044 poses serious national security concerns, including by reducing the Executive Branch’s ability to negotiate transfer conditions that promote national security.

Finally, note the language of Obama’s non-signing signing statement on the Defense Authorization from January.

Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act because of the importance of authorizing appropriations for, among other things, our military activities in 2011.

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

So in January, Obama basically said, “This is unconstitutional so don’t make it any worse or I’ll get cross,” and this amendment, which effectively sustains the status quo but doesn’t make it worse, gets pretty much the same response from the Administration.

But the defense bill did make detainee restrictions worse–far worse. Particularly given Holder’s lead position on past opposition, I wonder whether Section 1042, which requires the Attorney General to ask permission from the Defense Secretary and Director of National Intelligence before prosecuting a terrorist in civilian courts, wasn’t the final straw.

IN GENERAL.—Before any officer or employee of the Department of Justice institutes any prosecution of an alien in a United States district court for a terrorist offense, the Attorney General, Deputy Attorney General, or Assistant Attorney General for the Criminal Division, shall consult with the Director of National Intelligence and the Secretary of Defense about—

(1) whether the prosecution should take place in a United States district court or before a military commission under chapter 47A of title 10, United States Code; and

(2) whether the individual should be transferred into military custody for purposes of intelligence interviews.

One last point.

I noted this was the DHS appropriation. That’s also significant because amendments are treated differently than they are on Defense Appropriations, as does the fearmongering that can be mobilized when the Defense bill is at risk of failing. A veto threat on a defense bill is just a far more powerful threat than it is on a DHS bill. So while I’m skeptical that Obama is really drawing a line in the sand, if he is, it’s a far more useful place to draw it than on the DHS bill.

I was going to write about this story–about a confrontation between Henry Waxman and Barack Obama over the latter’s ineffective negotiating strategy–yesterday.

The president has heard the complaint before. Democrats have accused Obama repeatedly of ceding too much ground to the GOP, especially on health care and the extension of the Bush-era tax cuts for the wealthy. But attendees said the critique appeared to rub him the wrong way on Thursday.

“He was a little testy with the Waxman question. Essentially, Mr. Waxman was urging him to fight more,” one legislator said. “The president reminded folks that he’s the president sitting in that chair and he knows how to negotiate.”

Obama also told the assembled Democrats not to count on more fiery rhetoric from the Oval Office.

“He said, ‘There’s a difference between me and a member of Congress,’” another lawmaker said, paraphrasing the president as saying: “When I say something the markets react, all of society reacts, other countries react. I’ve got to be careful with what I say. I can’t just say it for brinkmanship. I’ve got to say it in a way so that I get what I want said, but I don’t upset markets and so on.”

But I’m sort of glad I waited until after today’s announcement that unemployment has gone up and declining public sector employment is dragging down the economy. Because it makes it all the more appropriate to highlight Obama’s claim that he has a plan.

But Obama responded that he has to be more careful and more considered than that, and that he is executing an existing plan. [my emphasis]

Not only does the crummy economic news weaken what had been a position of relative strength for the President, but it shows that if he’s got a plan, it’s either not working or not designed to work. Obama’s plan–to focus on the deficit–only makes it more likely we’ll see ongoing cuts to public employment.

Is that really the plan, Mr. President?