I could listen to this piece on a loop. It’s Santiago de Murcia’s “Tarantela,” performed by noted lutist Rolf Lislevand. The instrument he is playing is as important as the music and his artistry; it’s an extremely rare Stradivarius guitar called the Sabionari. While tarantellas more commonly feature additional instruments and percussion like tambourines, this instrument is stunning by itself.
You can learn more about the Sabionari at Open Culture, a site I highly recommend for all manner of educational and exploratory content.
And now to dance the tarantella we call Monday.
Bad News (Media)
Just for the heck of it, consider a lunch read/watch on a recent theory: World War 0. Sounds plausible to me, but this theory seems pretty fluid.
Catch you here tomorrow morning!
* UPDATE — 1:20 P.M. EDT —
Standard Bank reported it had lost 300 million rand, or USD $19.1 million to the attack on Japanese ATMs. First reports in South African media and Reuters were roughly 11 hours ago or 9:00 a.m. Johannesburg local time. It’s odd the name of the affected bank did not get wider coverage in western media, but then South Africa has a problem with disclosing bank breaches. There were five breaches alleged last year, but little public information about them; they do not appear on Hackmageddon’s list of breaches. This offers a false sense of security to South African banking customers and to banks’ investors alike.
Japan Times report attribute the thefts to a Malaysian crime gang. Neither Japan Times nor Manichi mention Standard Bank’s name as the affected South African bank. Both report the thefts actually took place more than a week ago on May 15th — another odd feature about reporting on this rash of well-organized thefts.
Oye como va
Bueno pa gozar
— excerpt, Oye Como Va by Tito Puente
This Latin jazz song was on the very first album I owned — Santana’s Abraxas. I have no idea what possessed my father to select this way back in 1971 because he’s not musically inclined. I prefer to think he was persuaded by the music store staff to buy it for me rather than think the cover art did it for him. To this day I don’t dare ask; I’d rather live with my illusion.
Perhaps he simply liked Oye Como Va by Tito Puente and decided I needed it. Maybe that’s what he wanted to listen to when I played the album over and over again, ad nauseam. The song is still easy to listen to even when played by a septuagenarian, isn’t it? Though Puente probably still felt the same way about this song in his last live performance as he did when he first recorded it in 1963.
The personal irony I’m certain my father never considered: the last line is a reference to a mixed race “mulatto” woman. That’s me.
Looks like it’s going to be a lovely late spring weekend here — hope you’re going to have a nice one, too. See you Monday!
I admit it, I’ve betrayed my kind. I’ve been remiss in my responsibilities, haven’t been equitable.
To fix that, you need a dose of estrogen, stat. This morning’s medication is Veruca Salt’s Volcano Girls.
Feel better soon, eh?
Mitsubishi’s Tetsuro Aikawa to leave, asks Nissan to name replacement (Bloomberg) — Announcement comes six days after Nissan announced it would buy a controlling interest in Mitsubishi. Nissan’s CEO Carlos Ghosn indicated he does not intend to subsume and phase out the Mitsubishi brand; this may have encouraged Aikawa he was leaving the company in good hands. I wouldn’t bet on some overlap between Nissan/Mitsubishi being eliminated.
Suzuki apologized for using the wrong fuel economy tests (Reuters) — Suzuki says it didn’t need to change its declared mileage data based on correct testing. I sure hope independent testing confirms this, though I suspect the same study which revealed Volkswagen’s cheat would have indicated additional validation needed.
Volkswagen says it will focus on profitability, pronto (Bloomberg) — Investors are restless and complaining about VW’s recalcitrance toward cost cutting in light of 16 billion euros it set aside for fixes and claims due to Dieselgate. Executives’ pay is on the butcher’s block. More than a little overdue as VW execs knew about the emissions controls defeat’s detection two years ago.
Forensic scientist reports to NHTSA Chevrolet’s dangerous cruise control problem (Zdziarski’s blog) — PAY ATTENTION TO THIS IF YOU’RE A LATE MODEL CHEVROLET OWNER. Read the linked post; Chevrolet’s response is deplorable, asking drivers to modify behavior rather than supply/fix product to work as documented and sold.
The (Fossil Fuel) Business
Goldman Sachs downgrades stocks to neutral while going bullish on oil (Bloomberg) — I like the subhead on this article: “Too many things to worry about.” ~LOL~ Excess valuation, lower growth, “a wall of stock market worries” encouraged the bear move. Things not explicitly mentioned: the U.S. and Australian elections and Brexit referendum outcome.
But…bullishness on oil out of whack (MarketWatch) — Another LOL-ish subhead today: “The fine print shows Goldman analysts believe oil will struggle to easily top $50.” So GS is telling its clients to reduce excess oil holdings while conditioning overall market to firm up what’s in their clients’ portfolios? ~smh~ Just as above, not mentioned in this take are any elections/referendums.
Note, too, that neither of these reports mentions Iran.
Anadarko Petroleum downgraded to neutral by Credit Suisse (Trade Calls) — You want another confusing take on fossil fuels? Read this article. Supports MarketWatch’s calling out GS on oil, though Anadarko also includes natural gas.
Total SA’s CEO Pouyanne pooh-poohs France’s ban on shale gas (Bloomberg) — Man, this dude is as arrogant as his predecessor. France could simply outlaw any imports without a certificate of origin, and force the industry to figure it out. Yet another article that doesn’t mention Iran, which sits on one of the largest natural gas reserves in the world. Pouyanne’s predecessor was cozy with Iran, too. So why all the attitude about North American shale gas imports?
Hedge fund used AI to pick through Fed Reserve’s minutes (Business Insider) — Using AI gleaned from a competition it hosted, Two Sigma fund analyzed the Fed Reserve. The app used Natural Language Processing and found some interesting trends. Wonder if the results would be different using Google’s SyntaxText open sourced this past week?
Cynically opportunistic marketing push promotes so-called ‘anti-Zika’ condoms (IBTImes-AU) — Pharmaco Starpharma Holdings and condom-maker Ansell will give Australia’s Olympians “Dual Protect” condoms lubricated with VivaGel for “almost 100-percent anti-viral protection” against Zika. Never let a perfectly good health crisis go to waste, right?
CDC says any condom will work against Zika (MarketWatch) — Yeah. That. I said this already: condoms are recommended for other viral STIs like herpes and HIV, will work fine for Zika, no special anti-Zika condom required. But you have to use the consistently and for at least six months after exposure to Zika since the virus can remain in men’s reproductive system for at least that long after infection.
ONE company will release condoms in 56 different sizes (Glamour) — Holy schnikes. This is a broader range of sizes than men’s off-the-rack suits. No excuses about not wearing condoms, there will be one bound to fit gents. Would be nice if ONE could hit the market with these in Brazil before the Olympics. (And don’t turn your nose up at Glamour. It’s one of the better articles I read today, includes some good links.)
There’s enough material to get you over the hump. Catch you in the morning tomorrow!
Reuters reports that, in the wake of criminals hacking the global financial messaging system SWIFT both via the Bangladesh central and an as-yet unnamed second central bank, SEC Commissioner Mary Jo White identified vulnerability to hackers as the top threat to the global financial system.
Cyber security is the biggest risk facing the financial system, the chair of the U.S. Securities and Exchange Commission (SEC) said on Tuesday, in one of the frankest assessments yet of the threat to Wall Street from digital attacks.
Banks around the world have been rattled by a $81 million cyber theft from the Bangladesh central bank that was funneled through SWIFT, a member-owned industry cooperative that handles the bulk of cross-border payment instructions between banks.
The SEC, which regulates securities markets, has found some major exchanges, dark pools and clearing houses did not have cyber policies in place that matched the sort of risks they faced, SEC Chair Mary Jo White told the Reuters Financial Regulation Summit in Washington D.C.
“What we found, as a general matter so far, is a lot of preparedness, a lot of awareness but also their policies and procedures are not tailored to their particular risks,” she said.
“As we go out there now, we are pointing that out.”
Of course, the criminals in Bangladesh were not the first known hackers of SWIFT. The documents leaked by Snowden revealed NSA’s elite hacking group, TAO, had targeted SWIFT as well. Given the timing, it appears they did so to prove to the Europeans and SWIFT that the fairly moderate limitations being demanded by the Europeans should not limit their “front door” access.
Targeting SWIFT (and credit card companies) is probably not the only financial hacking NSA has done. One of the most curious recommendations in the President’s Review Group, after all, was that “governments” (including the one its report addressed, the US?) might hack financial institutions to change the balances in financial accounts.
(2) Governments should not use their offensive cyber capabilities to change the amounts held in financial accounts or otherwise manipulate the financial systems;
Second, governments should abstain from penetrating the systems of financial institutions and changing the amounts held in accounts there. The policy of avoiding tampering with account balances in financial institutions is part of a broader US policy of abstaining from manipulation of the financial system. These policies support economic growth by allowing all actors to rely on the accuracy of financial statements without the need for costly re-verification of account balances. This sort of attack could cause damaging uncertainty in financial markets, as well as create a risk of escalating counter-attacks against a nation that began such an effort. The US Government should affirm this policy as an international norm, and incorporate the policy into free trade or other international agreements.
After which point, James Clapper started pointing to similar attacks as a major global threat.
I don’t mean to diminish the seriousness of the threat (though I still believe banksters’ own recklessness is a bigger threat to the world financial system). But the NSA should have thought about the norms they were setting and the impact similar attacks done by other actors would have, before they pioneered such hacks in the first place.
This video fascinates me. I’ve watched it a number of times since Nerdist shared it last month; it’s the 24-minute long set by Freddie Mercury and Queen at the 1985 Live Aid concert held in Wembley Stadium.
Nerdist noted the audience’s response reflects the speed of sound — the visible ripple of fans’ hands speeds across the crowd in response to the sound as it leaves the stage area and travels across the venue. The gif they shared was taken about 16:37 into this set, just as the band begins We Will Rock You.
I think there was more at work here because earlier snaps of the audience reaction during Radio Gaga (roughly 4:25 onward) don’t show the same marked wave across the crowd. But several points in the set Mercury interacts with the audience, coaxing them to sing and shout along with him.
And then at 16:35 when he begins We Will Rock You, the crowd is completely in sync with him. They adore him and are utterly engaged. The wave is not just sound but their feeling for Mercury and his performance.
Can you imagine a politician who could induce such a response?
Adobe Flash must die, and Google’s slowly exterminating it in Chrome (Ars Technica) — By year’s end, Flash will be disabled by default in Google’s Chrome browser. It will only play when manually enabled. All part of the slow migration to HTML5 away from risky Flash.
Antivirus app halts heart surgery (Ars Technica-UK) — Holy crap. Why does medical equipment need antivirus software to begin with, let alone how does an A/V app launch and run during surgery?
Dude, that female TA you hit on? An AI bot (Sydney Melbourne Herald) — Wow. Future’s already here and you can’t tell you’ve been dissed by both your prof and the chick-bot-TA.
A series of tubes
Remote healthcare not ready for prime time (ScienceDaily) — Study using fake patients to test direct-to-consumer teledermatology remote health care systems found security problems with IDs, poor-to-bad assignment of clinicians, many errors made in major diagnoses, insufficient warning to pregnant patients when meds prescribed, just for starters. Think of this as Healthcare Internet of Things Fail.
Super. Fast. Wireless. Internet. Coming. To. YOU! Really? (MIT Technology Review) — Ugh, so breathless with excitement they are about this startup called Starry. I was, too, initially, but we’ve been told this crap for more than a decade. Since this requires the cooperation of Verizon, AT&T, Facebook, and Google to standardize on this platform AND reception relies on line-of-sight, I’m not holding my breath.
New business for Amazon to tackle: its own private label groceries (Techcrunch) — Amazon doesn’t want to leave a penny on the table. If customers are too price sensitive to click their Dash button for a big name brand consumer good, they’ll offer their own instead. Prime accounts only, though; first goods will be heavy on baby needs, which makes sense given parents are often a captive audience.
Norway’s sovereign (oil) wealth fund to sue Volkswagen (AP) — Fossil fuel-created fund owns 1.64% stake in Volkswagen. It’s suing to protect its assets exposed by VW’s emissions controls cheat. Imagine me laughing at oil suing a car company for the manner in which it promulgated oil consumption.
Norway’s Statoil to launch first floating wind farm (Bloomberg) — This company is well ahead of Shell when it comes to diversifying energy production.
Flint Water Crisis
Michigan’s top law enforcement agent unaware of Michigan State Police “quiet investigation” (WZZM) — Still scratching my head over this one. Why did the governor ask MSP to conduct an administrative — not criminal — investigation, omitting the state attorney general? And who’s conducting a genuine criminal investigation, including the governor’s role?
Toy maker(s) insisted Iron Man 3 movie must have male, not female villain (The Mary Sue) — In other words, Marvel’s big sweeping superhero movies are really just very long trailers to sell boys’ toys. Girls and women need not apply. I have no idea how they can make a decision based on any realistic data given the dearth of female villains on screen and in toys. Is this just some lame argument for inequity in front and behind the camera?
Running behind, probably read too much today and swamped my processing circuits. Hope mid-week becomes a little more focused — catch you tomorrow!
Jeepers. I need hip waders. There is just so damned much stupid over the last 24 hours. It’s a veritable flood.
The Future is here, and it’s stupid
The Past remains, and it’s stupid, too
The Present’s no gift
Ugh. Hope tomorrow is kinder to us. See you in the morning!
This music video is the result of an insomniac walkabout. I went looking for something mellow I hadn’t heard before and tripped on this lovely little indie folk artistry. Not certain why I haven’t heard Radical Face before given how popular this piece is. I like it enough to look for more by the same artist.
Let’s go wandering…
Volkswagen: 3.0L fix in the offing, but too late for EU and the world?
Mixed government messages about hacking, encryption, and cybersecurity enforcement
Compare: FBI hires a “grey hat” to crack the San Bernardino shooter’s iPhone account, versus FCC and FTC desire for escalated security patching on wireless systems. So which is it? Hacking is good when it helps government, or no? Encryption is not good for government except when it is? How do these stories make any sense?
Well, it’s not quite noon Pacific time, still morning somewhere. Schedule was off due to insomnia last night; hoping for a better night’s sleep tonight, and a better morning tomorrow. Catch you then!
In addition to getting him to admit the US can’t fix the Middle East but we have to stay because our “leadership” is needed there, in this column David Ignatius asked James Clapper, again, about how much damage Edward Snowden has caused.
Clapper said the United States still can’t be certain how much harm was done to intelligence collection by the revelations of disaffected National Security Agency contractor Edward Snowden. “We’ve been very conservative in the damage assessment. Overall, there’s a lot,” Clapper said, noting that the Snowden disclosures made terrorist groups “very security-conscious” and speeded the move to unbreakable encryption of data. And he said the Snowden revelations may not have ended: “The assumption is that there are a lot more documents out there in escrow [to be revealed] at a time of his choosing.”
Let’s unpack this.
Clapper provides two pieces of evidence for damage:
That’s a bit funny, because what we saw from the terrorist cell that ravaged Paris and Belgium was — as The Grugq describes it — “drug dealer tradecraft writ large.” Stuff that they could have learned from watching the Wire a decade ago, with a good deal of sloppiness added in. With almost no hints of the use of encryption.
If the most dangerous terrorists today are using operational security that they could have learned years before Snowden, then his damage is not all that great.
Unless Clapper means, when he discusses the use of unbreakable encryption, us? Terrorists were already using encryption, but journalists and lawyers and US-based activists might not have been (activists in more dangerous places might have been using encryption that the State Department made available).
Neither of those developments should be that horrible. Which may be why Clapper says, “We’ve been very conservative in the damage assessment” even while insisting there’s a lot. Because this is not all that impressive, unless as Chief Spook you think you should have access to the communications of journalists and lawyers and activists.
I’m most interested, however, in this escrow idea.
“The assumption is that there are a lot more documents out there in escrow [to be revealed] at a time of his choosing.”
Snowden and Glenn Greenwald and Laura Poitras and Bart Gellman have said about a zillion times that Snowden handed everything off before he went to Russia. And everyone who knows anything about Russia would assume if he brought documents there, Putin has had them for almost 3 years.
Sure, there are surely documents that reporters have that, reviewed in the future by other people, may result in new disclosures. But the suggestion that Snowden himself is asking the journalists to hold back some of the documents “in escrow” is rather curious. Why would Snowden withhold documents until such time that the technology behind disclosures would be out of date.
I mean, it’s useful as a basis to claim that Snowden will continue to damage the IC when there’s actually not that much evidence he already has. But it doesn’t make much sense to me.
Ah well. In the article Clapper says he’ll be around for 265 days, which means around February 9 of next year, someone else will take up fearmongering about Edward Snowden.
Why’d I pick this music video, besides the fact I like the tune? Oh, no reason at all other than it’s trash day again.
Speaking of trash…
“…News curators aren’t Facebook employees—they’re contractors. One former team member said they received benefits including limited medical insurance, paid time off after 6 months and transit reimbursement, but were otherwise excluded from the culture and perks of working at Facebook. […] When the curators, hired by companies like BCForward and Pro Unlimited (which are then subcontracted through Accenture to provide workers for Facebook), arrive at work each day, they read through a list of trending topics ranked by Facebook’s algorithm from most popular (or most engaged) to least. The curators then determine the news story the terms are related to.
The news curation team writes headlines for each of the topics, along with a three-sentence summary of the news story it’s pegged to, and choose an image or Facebook video to attach to the topic. The news curator also chooses the “most substantive post” to summarize the topic, usually from a news website. […] News curators also have the power to “deactivate” (or blacklist) a trending topic—a power that those we spoke to exercised on a daily basis. …” (emphasis mine)
I see a Facebook-generated algorithm, but no direct employees in the process — only curator-contractors.
“…Over time, the work became increasingly demanding, and Facebook’s trending news team started to look more and more like the worst stereotypes of a digital media content farm.
Burnout was rampant. ‘Most of the original team isn’t there anymore,’ said another former news curator. ‘It was a stop-gap for them. Most of the people were straight out of [journalism school]. At least one of them was fired. Most of them quit or were hired by other news outlets.’ …” (emphasis mine)
It’s not as if unhappy contractors won’t have newsworthy tips, but what about unhappy Facebook employees? Where are they in either of Gizmodo’s pieces?
“Facebook workers routinely suppressed news stories of interest to conservative readers from the social network’s influential “trending” news section, according to a former journalist who worked on the project.
Other former curators interviewed by Gizmodo denied consciously suppressing conservative news, and we were unable to determine if left-wing news topics or sources were similarly suppressed. The conservative curator described the omissions as a function of his colleagues’ judgements; there is no evidence that Facebook management mandated or was even aware of any political bias at work. …”
Note the use of “a” in front of “former journalist” and “the” in front of “conservative curator.” (Note also Gizmodo apparently needs a spell check app.)
When asked about the trending news team and its future, a Facebook spokesperson said, “We don’t comment on rumor or speculation. As with all contractors, the trending review team contractors are fairly compensated and receive appropriate benefits.”
I’m disappointed that other news outlets picked up Gizmodo’s work without doing much analysis or followup. Reuters, for example, even parrots the same phrasing Gizmodo used, referring to the news curators as “Facebook workers” and not contract employees or contractors. Because of this ridiculous unquestioning regurgitation by outlets generally better than this, I felt compelled to write about my concerns.
And then there’s Gizmodo itself, which made a point of tweeting its report was trending on Facebook. Does Gizmodo have a beef with Facebook, too? Has it been curated out of Facebook’s news feed? Are these two pieces really about Facebook’s laundering of Gizmodo?
I don’t know; I can’t tell you because I don’t use Facebook. Not going to start now because of Gizmodo’s sketchy reporting on Facebook, of all things.
Just some odd bits read because today is as themeless as yesterday — lots of garbage out there.
Skepticism: I haz it
As I read coverage about news reporting and social media leading up to the general election, I also keep in the back of my mind this Bloomberg report, How to Hack an Election:
As for Sepúlveda, his insight was to understand that voters trusted what they thought were spontaneous expressions of real people on social media more than they did experts on television and in newspapers. […] On the question of whether the U.S. presidential campaign is being tampered with, he is unequivocal. “I’m 100 percent sure it is,” he says.
Be more skeptical. See you tomorrow morning!
UPDATE — 1:30 P.M. EDT —
JUST IN: Senate Commerce Commtitte chair sends letter to Facebook’s Mark Zuckerberg seeking answers on alleged manipulation of trending news
ARE YOU FUCKING KIDDING ME WITH THIS? THE SENATE GOING TO WASTE TAX DOLLARS ON THIS WHEN EVERY. SINGLE. NEWS. OUTLET. USES EDITORIAL JUDGMENT TO DECIDE WHAT TO COVER AS NEWS?
poorly sourced hit piece says,
“…In other words, Facebook’s news section operates like a traditional newsroom, reflecting the biases of its workers and the institutional imperatives of the corporation. …”
Yet the Senate is going to pursue this
bullshit story after Gizmodo relied on ONE conservative curator-contractor — and their story actually says an algorithm is used?
Jeebus. Yet the Senate will ignore Sheldon Adelson’s acquisition of the biggest newspaper in Las Vegas in a possible attempt to denigrate local judges?
I can’t with this.
UPDATE — 3:35 P.M. EDT —
The Guardian reports the senator wasting our tax dollars questioning a First Amendment exercise by Facebook is John Thune. Hey! Guess who’s running for re-election as South Dakota’s senior senator? Why it’s John Thune! Nothing like using your political office as a free press-generating tool to augment your campaign. I hope Facebook’s algorithm suppresses this manufactured non-news crap.
There’s a whiff of panic in DOJ’s response to ACLU’s latest brief in the common commercial services OLC memo, which was submitted last Thursday. They really don’t want to release this memo.
As you recall, this is a memo Ron Wyden has been hinting about forever, stating that it interprets the law other than most people understand it to be. After I wrote about it a bunch of times and pointed out it was apparently closely related to cybersecurity, ACLU finally showed some interest and FOIAed, then sued, for it. In March, DOJ made some silly (but typical) claims about it, including that ACLU had already tried but failed to get the memo as part of their suit for Stellar Wind documents (which got combined with EPIC’s suit for electronic surveillance documents). In response, Ron Wyden wrote a letter to Attorney General Loretta Lynch, noting a lie DOJ made in DOJ’s filings in the case, followed by an amicus brief asking the judge in the case to read the secret appendix to the letter he wrote to Lynch. In it, Wyden complained that DOJ wouldn’t let him read his secret declaration submitted in the case (making it clear they’re being kept secret for strategic reasons more than sources and methods), but asking that the court read his own appendix without saying what was in it.
Which brings us to last week’s response.
DOJ is relying on an opinion the 2nd circuit released last year in ACLU’s Awlaki drone memo case that found that if a significant delay passed between the time an opinion was issued and executive branch officials spoke publicly about it — as passed between the time someone wrote a memo for President Bush’s “close legal advisor” in 2002 about drone killings (potentially of American citizens) and the time Executive branch officials stopped hiding the fact they were planning on drone-killing an American citizen in 2010, then the government can still hide the memo.(I guess we’re not allowed to learn that Kamal Derwish was intentionally, not incidentally, drone-killed in 2002?)
This is, in my understanding, narrower protection for documents withheld under the b5 deliberative privilege exemption than exists in the DC Circuit, especially given that the 2nd circuit forced the government to turn over the Awlaki memos because they had been acknowledged.
In other words, they’re trying to use that 2nd circuit opinion to avoid releasing this memo.
To do that they’re making two key arguments that, in their effort to keep the memo secret, end up revealing a fair amount they’re trying to keep secret. First, they’re arguing (as they did earlier) that the ACLU has already had a shot at getting this memo (in an earlier lawsuit for memos relating to Stellar Wind) and lost.
There’s just one problem with that. As I noted earlier, the ACLU’s suit got joined with EPIC’s, but they asked for different things. ACLU asked for Stellar Wind documents, whereas EPIC asked more broadly for electronic surveillance ones. So when the ACLU argued for it, they were assuming it was Stellar Wind, not something that now appears to (also) relate to cybersecurity.
Indeed, the government suggests the ACLU shouldn’t assume this is a “Terrorist Surveillance Program” document.
7 Plaintiffs conclude that the OLC memorandum at issue here must relate to the Terrorist Surveillance Program and the reauthorization of that program because the attorney who authored the memorandum also authored memoranda on the Terrorist Surveillance Program. Pls.’ Opp. at 10. The fact that two OLC memoranda share an author of course establishes nothing about the documents’ contents, nature, purpose, or effect.
Suggesting (though not stating) the memo is not about TSP is not the same as saying it is not about Stellar Wind or the larger dragnets Bush had going on. But it should mean ACLU gets another shot at it, since they were looking only for SW documents the last time.
Which is interesting given the way DOJ argues, much more extensively, that this memo does not amount to working law. It starts by suggesting Wyden’s filing arguing a “key assertion” in the government’s briefs is wrong.
3 Senator Wyden asks the Court to review a classified attachment to a letter he sent Attorney General Loretta Lynch in support of his claim that a “key assertion” in the Government’s motion papers is “inaccurate.” Amicus Br. at 4. The Government will make the classified attachment available for the Court’s review ex parte and in camera. For the reasons explained in this memorandum, however, the Senator’s claim of inaccuracy is based not on any inaccurate or incomplete facts, but rather on a fundamental misunderstanding of the “working law” doctrine.
In doing so, it reveals (what we already expected but which Wyden, but apparently not DOJ, was discreet enough not to say publicly) that the government did whatever this John Yoo memo said government could do.
But, it argues (relying on both the DC and 2nd circuit opinions on this) that just because the government did the same thing a memo said would be legal (such as, say, drone-killing a US person with no due process), it doesn’t mean they relied on the memo’s advice when they took that action.
The mere fact that an agency “relies” on an OLC legal advice memorandum, by acting in a manner that is consistent with the advice, Pls.’ Opp. at 11, does not make it “working law.” OLC memoranda fundamentally lack the essential ingredient of “working law”: they do not establish agency policy. See New York Times, 806 F.3d at 687; Brennan Center, 697 F.3d at 203; EFF, 739 F.3d at 10. It is the agency, and not OLC (or any other legal adviser), that has the authority to establish agency policy. If OLC advises that a contemplated policy action is lawful, and the agency considers the opinion and elects to take the action, that does not mean that the advice becomes the policy of that agency. It remains legal advice. 5
5 Nor could the fact that any agency elects to engage in conduct consistent with what an OLC opinion has advised is lawful possibly constitute adoption of that legal advice, because taking such action does not show the requisite express adoption of both the reasoning and conclusion of OLC’s legal advice. See Brennan Center, 697 F.3d at 206; Wood, 432 F.3d at 84; La Raza, 411 F.3d at 358.
Effectively, DOJ is saying that John Yoo wrote another stupid memo just weeks before he left, the government took the action described in the stupid memo, but from that the courts should not assume that the government took Yoo’s advice, this time.
One reason they’re suggesting this isn’t TSP (which is not the same as saying it’s not Stellar Wind) is because it would mean the government did not (in 2005, when Bush admitted to a subset of things called TSP) confirm this action in the same way Obama officials danced around hailing that they had killed Anwar al-Awlaki, which led to us getting copies of the memos used to justify killing him.
In short, the government followed Yoo’s advice, just without admitting they were following his shitty logic again.