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Sting: Two New Reports on How the FBI Creates Terrorists

In the last several days, two important new reports on the FBI’s creation of Muslim terrorists.

The first is an Al Jazeera English video, above, from Trevor Aaronson, who also wrote The Terror Factory. He interviews both informants and the men who entrapped them, the latter of whom describe the FBI’s method. The video includes an extended look at a Toledo informant not previously profiled.

Today Human Rights Watch released a report (I’m part way done with it). That did both statistical analysis of the terrorism cases since 9/11 and close reviews of 27 cases across the country. They did interviews with a number of detainees. They examined the use of pre-trial solitary confinement.

Both reports make a key point: by putting informants in mosques, the FBI is effectively inserting potentially dangerous criminals inside faith communities rather than imprisoning them. The HRW report notes that in some cases, those informants “trolled” for potential leads.

Some of the cases we reviewed appear to have begun as virtual fishing expeditions, where the FBI had no basis to suspect a particular individual of a propensity to
commit terrorist acts. In those cases, the informant identified a specific target by
randomly initiating conversations near a mosque. Assigned to raise controversial
religious and political topics, these informants probed their targets’ opinions on
politically sensitive and nuanced subjects, sometimes making comments that
appeared designed to inflame the targets. If a target’s opinions were deemed
sufficiently troubling, officials concerned with nascent radicalization pushed the
sting operation forward.

HRW’s primary recommendation is more controls on the use of informants. In particular it describes how FBI sometimes uses an effort for spiritual advice to push a (usually young) target towards violence.

Both reports provide valuable new details on how the FBI makes terrorists. We’re getting closer to mapping how all these systems fit together.

The Other Authority for the Phone Dragnet

Back in February, I noted Ron Wyden’s question for then acting OLC head Caroline Krass (she’s now CIA’s General Counsel) about Jack Goldsmith’s 2004 OLC opinion authorizing the dragnet.

In the follow-up questions for CIA General Counsel nominee Caroline Krass, Ron Wyden asked a series of his signature loaded questions. With it, he pointed to the existence of still-active OLC advice — Jack Goldsmith’s May 6, 2004 memo on Bush’s illegal wiretap program — supporting the conduct of a phone (but not Internet) dragnet based solely on Presidential authorization.

He started by asking “Did any of the redacted portions of the May 2004 OLC opinion address bulk telephony metadata collection?

Krass largely dodged the question — but did say that “it would be appropriate for the May 6, 2004 OLC opinion to be reviewed to determine whether additional portions of the opinion can be declassified.”

In other words, the answer is (it always is when Wyden asks these questions) “yes.”

This is obvious in any case, because Goldsmith discusses shutting down the Internet dragnet program, and spends lots of time discussing locating suspects.

Wyden then asked if the opinion relied on something besides FISA to conduct the dragnet.

[D]id the OLC rely at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?

Krass dodged by noting the declassification had not happened so she couldn’t answer.

But the 2009 Draft NSA IG Report makes it clear the answer is yes: NSA collected such data, both before and after the 2004 hospital showdown, based solely on Presidential authorization (though on occasion DOJ would send letters to the telecoms to reassure them both the metadata and content collection was legal).

Finally, Wyden asks the kicker: “Has the OLC taken any action to withdraw this opinion?”

Krass makes it clear the memo is still active, but assures us it’s not being used.

This is an exchange Center for National Security Studies Kate Martin brings back into the discussion of whether USA Freedumber actually ends bulk collection.

[W]e don’t know whether the Justice Department has opined that other statutory authorities – not now addressed in the USA Freedom Act – could authorize the NSA’s bulk collection.  Without this knowledge, we can’t be certain whether the proposed amendments to section 501 (215) will in fact be sufficient to prohibit the NSA from engaging in bulk collection of metadata using some other hitherto unidentified authority.

This is not a fanciful concern.  There is in fact a still partly secret OLC opinion by the Justice Department that may address precisely this question.

CNSS is using the debate over USA Freedumber to demand the Administration declassify the rest of that opinion.

When the government declassified the statements submitted in the Jewel v. NSA case last December, it basically declassified everything that should be in that memo. So what’s the holdup on releasing the memo itself?

Center for Democracy and Technology’s James Dempsey on “the Wall,” Then and Now

Remember “the wall” that used to separate intelligence from criminal investigations and was used as an excuse for intelligence agencies not sharing intelligence they were permitted to share before 9/11?

It was demolished in 2001 — when the PATRIOT Act explicitly permitted what had been permitted before, sharing of intelligence information with the FBI – and 2002 — when the FISA Court of Review overruled presiding FISA Judge Royce Lamberth’s efforts to sustain some Fourth Amendment protections in criminal investigations using minimization procedures.

Nevertheless, the specter of a wall that didn’t prevent the Intelligence Committee from discovering 9/11 rising again is one of the things lying behind PCLOB’s weak recommendations on back door searches in its report on Section 702.

Of particular note, that’s what the Center for Democracy and Technology’s James Dempsey cites in his squishy middle ground recommendation on back door searches.

It is imperative not to re-erect the wall limiting discovery and use of information vital to the national security, and nothing in the Board’s recommendations would do so. The constitutionality of the Section 702 program is based on the premise that there are limits on the retention, use and dissemination of the communications of U.S. persons collected under the program. The proper mix of limitations that would keep the program within constitutional bounds and acceptable to the American public may vary from agency to agency and under different circumstances. The discussion of queries and uses at the FBI in this Report is based on our understanding of current practices associated with the FBI’s receipt and use of Section 702 data. The evolution of those practices may merit a different balancing. For now, the use or dissemination of Section 702 data by the FBI for non-national security matters is apparently largely, if not entirely, hypothetical. The possibility, however, should be addressed before the question arises in a moment of perceived urgency. Any number of possible structures would provide heightened protection of U.S. persons consistent with the imperative to discover and use critical national security information already in the hands of the government.546 

546 See Presidential Policy Directive — Signals Intelligence Activities, Policy Directive 28, 2014 WL 187435, § 2, (Jan. 17, 2014) (limiting the use of signals intelligence collected in bulk to certain enumerated purposes), available at http://www.whitehouse.gov/the-press-office/2014/01/17/presidential-policy-directive-signals-intelligence-activities.  [my emphasis]

Dempsey situates his comments in the context of the “wall.” He then suggests there are two possible uses of back door searches: “national security matters,” and non-national security matters, with the latter being entirely hypothetical, according to what the FBI self-reported to PCLOB.

Thus, he’s mostly thinking in terms of “possible structures [that] would provide heightened protection of US. persons,” to stave off future problems. He points to President Obama’s PPD-28 as one possibility as a model.

But PPD-28 is laughably inapt! Not only does the passage in question address “bulk collection,” which according to the definition Obama uses and PCLOB has adopted has nothing to do with Section 702. “[T]he Board does not regard Section 702 as a ‘bulk’ collection program,” PCLOB wrote at multiple points in its report.

More troubling, the passage in PPD-28 Dempsey cites permits bulk collection for the following uses:

(1) espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests;

(2) threats to the United States and its interests from terrorism;

(3) threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction;

(4) cybersecurity threats;

(5) threats to U.S. or allied Armed Forces or other U.S or allied personnel;

(6) transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named in this section;

Ultimately, this represents — or should — an expansion of permissible use of Section 702 data, because its discussion of  terrorism and cybersecurity do not distinguish between those with an international nexus and those without. And the discussion of transnational crime might subject any petty drug dealer selling dope from Mexico to foreign intelligence treatment.

That this is what passes for the mushy middle on PCLOB is especially curious given that Dempsey was one of the first PCLOB member to express concern about back door searches. He did so in November’s Section 215 hearing, and even suggested limiting back door searches to foreign intelligence purposes (which is not the standard for FBI, in any case) was inadequate. Nevertheless, in last week’s report, he backed only very weak protections for back door searches, and did so within the context of national security versus non-national security, and not intelligence versus crime.

Now, I don’t mean to pick on Dempsey exclusively — I’ll have a few more posts on this issue. And to be clear, Dempsey does not represent CDT at PCLOB; he’s there in his private capacity.

But I raised his affiliation with CDT because in that capacity, Dempsey was part of an amicus brief, along with representatives from ACLU, Center for National Security Studies, EPIC, and EFF, submitted in the In Re Sealed Case in 2002, in which the FISA Court of Review reversed Lamberth and permitted prosecutor involvement in FISA warrants. That brief strongly rebuts the kind of argument he adopted in last week’s PCLOB report.

Continue reading

FBI Disclaims Material Support for Terrorism Prosecutions — for White People

Tara McElvey wrote a piece for the Beeb coming close to espousing a very (dangerous, IMO) British view: that the FBI should criminalize white supremacists’ speech the way they have Islamic terrorists’.

[Frazier Glenn Miller's] writings are a reminder of the virulence in white supremacist views. Earlier this month a married couple, Jerad and Amanda Miller (no relation to Frazier Glenn), shot and killed three people in Nevada.

The couple was steeped in white-supremacist ideology and spoke openly about their views. Police said they placed a swastika on the body of one of the victims.

Some wonder whether authorities were too easy on Frazier Glenn Miller before the killings – and are too soft on the white supremacists in the US.

The piece is most interesting for the quotes from FBI’s spokesperson, which falsely suggests it doesn’t target groups as groups.

Paul Bresson, a spokesman for the FBI, said: “We don’t target groups for who they are. If you want to be a white supremacist – legally there’s nothing wrong with that.

“What we’re concerned about is breaking the law.”

[snip]

As Bresson said: “There’s nothing illegal about being weird.”

Anti-Semitism and extremist ideology seem to play a role in the violence, but Bresson and other officials say that knowing when a white supremacist – or anyone – will explode is beyond their purview.

This is, of course, bullshit. For groups named as Foreign Terrorist Organizations, the FBI does target groups for who they are, under well-worn material support laws. But even without membership in an FTO, the FBI routinely sets up stings to catch young men to precipitate their “explosion” (invariably using inert bombs).

To be fair, the FBI also set up a bunch old white men in the Waffle House plot, in part because they had an informant affirmatively trying to work off his sex crime charges by setting up fellow anti-government activists.

But the FBI’s approach to both groups deserves reconsideration. If the FBI believes it’s not in the job of precipitating personal explosions, it should stop doing so, and instead investigate actual crimes (as Bresson says they do).

In the case of Miller, McElvey misses a key detail. The FBI did not have just his speech. The had — and DOJ had already used — his open support for the MLK bomber, Kevin Harpham, as evidence of criminality. Miller already supported the use of violence against African Americans.

The difference,  of course, is that FBI also called that a “hate crime,” not terrorism. And as a result, treated Miller’s support for terrorism as a First Amendment issue rather than a crime issue.

PCLOB Ignores Glaring Section 702 Non-Compliance: Notice to Defendants

I will have far more to say about PCLOB once I finish my working thread. But there’s one glaring flaw in the report’s claim that the government complies with the statute.

Based on the information that the Board has reviewed, the government’s PRISM collection complies with the structural requirements of the statute.

But here’s the report’s discussion of what happens with aggrieved persons — those prosecuted based in information derived from Section 702 information.

Further, FISA provides special protections in connection with legal proceedings, under which an aggrieved person — a term that includes non-U.S. persons — is required to be notified prior to the disclosure or use of any Section 702–related information in any federal or state court.447 The aggrieved person may then move to suppress the evidence on the grounds that it was unlawfully acquired and/or was not in conformity with the authorizing Section 702 certification.448 Determinations regarding whether the Section 702 acquisition was lawful and authorized are made by a United States District Court, which has the authority to suppress any evidence that was unlawfully obtained or derived.449 

But for 5 years after the passage of the law, the government never once gave defendants notice they were aggrieved under Section 702. It lied to the Supreme Court about not having done so. And even while it has since given a limited number of defendants — like Mohamed Osman Mohamud — notice, there are others — David Headley, Najibullah Zazi and Adis Medunjanin, and Khalid Ouazzani — who are known to be aggrieved under Section 702 who have never received notice. Finally, there is the case of the Qazi brothers, which seems to be a case where the government is parallel constructing right in the face of the magistrate.

PCLOB said that the government is generally in compliance with the statute. And yet, it made no mention of known, fairly egregious violations of the statute.

That suggests the report as a whole may be flawed.

“Trap and Trace Confidentiality” and National Dragnets

As a number of outlets are reporting, ACLU liberated some emails catching Florida cops agreeing to lie about the Stingray devices used to capture suspects.

As you are aware for some time now, the US Marshalls and I believe FDLE have had equipment which enables law enforcement to ping a suspects cell phone and pin point his/her exact location in an effort to apprehend suspects involved in serious crimes. In the past, and at the request of the U.S. Marshalls, the investigative means utilized to locate the suspect have not been revealed so that we may continue to utilize this technology without the knowledge of the criminal element. In reports or depositions we simply refer to the assistance as “received information from a confidential source regarding the location of the suspect.” To date this has not been challenged, since it is not an integral part of the actual crime that occurred.

The email goes on to instruct that “it is unnecessary to provide investigative means to anyone outside of law enforcement.”

But i’m most interested in the subject line for this email: “Trap and Trace Confidentiality.”

That seems to confirm what ACLU and WSJ have reported earlier this month. Law enforcement are obtaining location data under Pen Register or Trap and Trace orders, meaning they’re claiming that location data are simply metadata.

That (and the arrogant parallel construction) is problematic for a lot of reasons, but given two developments on the national dragnet, I think we should be newly concerned there, too.

As I have noted, several months after NSA’s Pen Register/Trap and Trace authority was shut down, FBI still had an active PRTT program from which NSA was obtaining data.

PRTT2

 

And not only does it seem that the government plans to resume some kind of PRTT dragnet, but there’s reason to believe they’re still hiding one.

The thing is, I have perhaps mistakenly always assumed these PRTT programs involved the collection of Internet metadata off telecom backbones. While I’m sure they collect large amounts of Internet metadata somehow, I realize now that they might also be operating (or planning to operate) large scale PRTT location programs. Remember, too, that Ron Wyden was asking provocative questions about the intelligence community’s use of cell location data just days before this classification guide.

Mind you, the Quartavious decision might make that impossible now.

But given the USM apparently concerted effort to hide the fact that PRTT equates to cell location orders, we should at least consider whether the government operates more systematic location programs.

Richard Posner Prepares to Overrule the Intent of Congress, and Other FISA in Court Stories

While the focus on NSA related issues will be on Washington DC today, with activist events, a debate at Brookings, and a Senate Intelligence Committee hearing, yesterday it was in several courtrooms.

In Chicago DC, Richard Posner reportedly seemed intent on finding a way to overturn Sharon Johnson Coleman’s order that Adel Daoud’s lawyers should be able to review the FISA materials leading to the investigation into him. It seems Posner is not all that interested in Congress’ intent that, in some cases, defendants would be able to review FISA warrants.

While she also reportedly seemed inclined to overturn Coleman’s decision, Ilana Diamond Rovner at least recognized the clear intend of Congress to permit reviews in some circumstances.

Another of the appeals court panelists, Judge Ilana Diamond Rovner, added that Coleman appeared to have “discarded” applicable FISA law and come up with her own justification for opening the records.

Rovner noted in a question for Ridgway that when Congress enacted the FISA law in the 1970s, it could have clearly indicated defense attorneys should never get access to the records. But it didn’t do that, she said.

“Can you give me any scenario where disclosure (to the defense) would be necessary?” Rovner asked.

“It would be a rare circumstance,” Ridgway, the assistant U.S. attorney, responded.

As I noted, the Defense made a very good argument that Congress intended review in such cases as this one.

Perhaps most stunning, however, is the way everyone but a big team of government prosecutors got booted from the court room.

As the arguments concluded, Judge Richard Posner announced the public portion of the proceedings had concluded and ordered the stately courtroom cleared so the three-judge panel could hold a “secret hearing.” Daoud’s attorney, Thomas Anthony Durkin, rose to object, but Posner did not acknowledge him. Deputy U.S. marshals then ordered everyone out – including Durkin, his co-counsel and reporters.

Only those with the proper security clearance — including U.S. Attorney Zachary Fardon, his first assistant, Gary Shapiro, and about a dozen FBI and U.S. Department of Justice officials – were allowed back in the courtroom before it was locked for the secret session.

Durkin, a veteran Chicago lawyer, said outside the courtroom he was not notified in advance that there would be a secret hearing and called the move unprecedented.

“Not only do I not get to be there, but I didn’t even get to object,” Durkin said. “I had to object over the fact that I couldn’t even make an objection.”

I suspect Posner used the period to conduct his own review of the FISA materials, substituting his judgment for Coleman’s, so as to uphold DOJ’s flawless record of never having their FISA worked checked.

But don’t worry: NSA  defenders will point to this and claim has been thoroughly vetted.

Meanwhile, in Oregon, where Mohamed Osman Mohamud is challenging what increasingly looks like his discovery off a back door search, the government appears to have argued that there is a foreign intelligence exception to the Fourth Amendment.

Assistant U.S. Attorney Ethan Knight countered that the government has court-approved procedures in place that were followed with respect to Mohamud’s case. Warrants are not required under an exception for foreign intelligence, he argued.

“The reality is when you peel back the layers of hyperbole, what would be unprecedented is if this court were to grant the defendant’s motion,” Knight said.

He also pushed back against a wider examination of the program, saying that it was “not the time or place or even arguably the branch of government” for the broader debate.

Granted, this is not much more extreme than the argument the government made in its filings (as summarized by ACLU’s Jameel Jaffer), that Americans may have no privacy interest in international communications.

In  support of the law, the government contends that Americans who make phone calls or sends emails to people abroad have a diminished expectation of privacy because the people with whom they are communicating – non-Americans abroad, that is – are not protected by the Constitution.

The government also argues that Americans’ privacy rights are further diminished in this context because the NSA has a “paramount” interest in examining information that crosses international borders.

And, apparently contemplating a kind of race to the bottom in global privacy rights, the government even argues that Americans can’t reasonably expect that their international communications will be private from the NSA when the intelligence services of so many other countries – the government doesn’t name them – might be monitoring those communications, too.

The government’s argument is not simply that the NSA has broad authority to monitor Americans’ international communications. The US government is arguing that the NSA’s authority is unlimited in this respect. If the government is right, nothing in the Constitution bars the NSA from monitoring a phone call between a journalist in New York City and his source in London. For that matter, nothing bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas.

The legal record on this is specific. While FISC found there was a warrant exception for “foreign” communications in Yahoo’s challenge of the Protect America Act, the FISA Court of Review’s decision was more narrow, finding only that there was a special need for the information before it, and also finding there were adequate protections for Americans (protections the government has been abrogating since the start of these warrantless programs). So while I will have to check the record, it appears that the line attorneys are going beyond what the appellate record (such as the FISCR decision can be called an appellate record) holds.

Albright Drops Pretense of Neutrality, Goes All In With MEK Terrorists

I have long criticized David Albright for his behavior in helping those who have tried to fan the flames over the years for a war with Iran. His role usually consists of providing technical “analysis” that somehow always works to support the latest allegations from sources (most often identified as diplomats) who selectively feed information to either AP reporter George Jahn or Reuters reporter Fredrik Dahl. As the P5+1 group of countries and Iran have moved closer and closer to achieving a final deal on Iran’s nuclear program, the Iran war hawks are growing more and more desperate. That desperation this week has resulted in David Albright dropping all pretense of being a neutral technical analyst and joining forces with the terrorist group MEK in slinging new, unsubstantiated allegations about Iran’s nuclear program.

On Tuesday, Albright published a strange document (pdf) on Iran’s nuclear program at his Institute for Science and International Security website. Also on Tuesday, the Wall Street Journal published an editorial that included a quote from Albright.

The reason I say that Albright’s document at the ISIS website is strange is that the document is simply titled “Spin, Spin, Spin” and, after the author list (Andrea Stricker joins him in the byline), the document puts a very strange quotation right after the dateline:

“The bigger the lie…”

The “Spin, Spin, Spin” title could be excused as a clever pun if the article’s topic were the centrifuges that Iran uses for enrichment of uranium. Instead, the topic is exploding bridge wire detonators. The title is a complete dismissal of everything that Iran has to say about the detonators, ascribing it to spin rather than fact. But then Albright and Stricker move beyond the mere spin accusation all the way to accusing Iran of lying–before they lay out a single bit evidence to support their allegation.

The document opens by attacking press coverage of Iran beginning to discuss EBW’s with the IAEA:

Media reporting immediately following the release of the IAEA’s safeguards report focused on Iran’s willingness to discuss the exploding bridge wire (EBW) detonators. That is certainly good news, but did Iran resolve the IAEA’s concern? The answer has to be no or probably not. This fact was only lightly covered in the media over the weekend. Some misinterpreted Iran’s willingness to discuss the issue with making progress on it. One group at least even went so far as to declare that Iran had “halted nuclear activities in the areas of greatest proliferation concern and rolled back its program in other key areas.” But if Iran continues to work on aspects of nuclear weapons, as the IAEA worries, then it is necessary to reserve judgment on that question.

After a while, the document moves on to the accusation that Iran is lying:

So, while it is significant that Iran has been willing to talk about this issue for the first time since 2008 when it unilaterally ended cooperation over the matter, the key consideration is whether Iran is actually addressing the IAEA’s concerns. More plainly, is it telling the truth? The EBW issue must be taken in the context of the large amount of evidence collected by Western intelligence agencies and the IAEA over many years, detailed in the annex to the November 2011 safeguards report, indicating EBWs were part of a nuclear weapon design effort and military nuclear program. From that perspective, Iran has not answered this issue adequately and appears to have simply elevated the level of its effort to dissemble.

Ah, so Albright is basing the accusation of lying on the “evidence…detailed in the annex to the November 2011 safeguards report”. Okay then. Never mind that the annex, based almost exclusively on the “laptop of death” has been pretty thoroughly debunked and seems likely to be a product of forgery. About seven and a half years ago, some dirty hippie figured out that the most likely source of this forgery was the MEK. One can only wonder how Albright has gone from being enough of a scientist to seeing the holes in the forgery to even be quoted by Gareth Porter in a 2010 debunking of the data to now throwing his entire weight (while apparently deciding to throw away his entire reputation) behind the allegations.

The full extent of Albright’s loss of intellectual honesty becomes clear when we look at the Wall Street Journal editorial. At least the Journal is open about its latest round of accusations coming directly from the MEK: Continue reading

DOD Reasserts Its Right to Force Feed While Not Denying Force Feeding Is Torture

Last Thursday, as a number of outlets reported, Judge Gladys Kessler declined to renew her own Temporary Restraining Order prohibiting the government from force feeding Abu Wa’el Dhiab. As she wrote, Dhiab was willing to be force fed without withdrawing his feeding tube each session and without use of the restraining chair. But the government refused, and so, “faced with an anguishing Hobson’s choice,” in the face of the “intransigence of the Department of Defense,” Kessler did not renew her TRO and ordered DOD to, “abide by their own Standard Operating Protocols, and that the standard for enteral feeding is whether Mr. Dhiab is actually facing an ‘imminent risk of death or great bodily injury.’”

Only, it’s not clear that’s the standard. In fact, the government itself says the standard may be simply body weight of less than 85% of ideal body weight.

A slew of filings have been released in Dhiab’s case in the last month (see below). But key among them are some filings submitted in April and early May, which were just released Friday.

Effectively, the delayed release of these documents reveals that back on May 7, one of the government’s primary rebuttals to claims about the conditions under which Dhiab was force fed last year was not to refute those claims, but rather to claim he had no standing to complain because he was not — at that point — being force fed.  Only 6 days later Gitmo cleared Dhiab to be force fed.

Underlying this discussion is Dhiab’s claim that the government has made the standards for force feeding arbitrary so as to be able to subject those detainees leading force feeding campaigns to painful treatment to get them to stop.

To substantiate that argument, the memorandum unsealed on Friday lays out the changes made to Gitmo’s force feeding protocol in November and December. Those changes include:

  • Deletion of limits on the speed at which detainees could be force fed
  • Elimination of guidelines on responding to complaints about speed of force feeding
  • Change of weight monitoring from daily to weekly
  • Deletion of chair restraint guidelines (DOD made a special SOP to cover restraint chair they have thus far refused to turn over)
  • Expansion of scenarios in which prisoners can be force fed, including those at 85% of ideal body weight (IBW)
  • Deletion of provisions against on-off force feeding
  • Discontinuation of use of Reglan (this has to do with potentially permanent side effects from the drug)
  • Replacement of phrase “hunger strike” with phrase “medical management of detainees with weight loss”

In response, the government argued (at a time Dhiab was not eating but before they put him on the force feeding list) that he didn’t have standing because he had not been force fed for 2 months. It also made a sustained defense of the 85% of IBW.  Much of the rest of the response described how prisoners are currently force fed.

Dhiab’s lawyers responded by parsing the language of the government response closely. They point out that:

  • No one actually involved in the force feeding of detainees submitted a declaration in the case
  • The Senior Medical Officer whose declaration forms the basis of much of the response didn’t arrive in Gitmo until this February, and so has no first hand knowledge of last year’s force feeding
  • The guy who preceded him did not submit a declaration even though he remains in the Navy, stationed at Jacksonville NAS
  • The government relies on a 2006 DOD Standard Operating Procedure document rather than the specific Gitmo SOPs written last year

Ultimately, Dhiab argues that the government has stopped some of the most abusive practices associated with force feeding — which they compare (with a doctor’s declaration in support) to water torture — while being sued.

Respondents state that the force-feeding “is” conducted humanely, and that detainees “are” not being force-fed at quatnties and speeds amounting to water torture. That might be partially true today, to the extent respondents have suspended some (but not all) of their abusive practices during the pendency of litigation challenging those practices. But Respondents utterly fail to rebut Petitioner’s showing of past abusive practices.

And of course, they’re making this argument as the government claims they shouldn’t have to turn over videos or Dhiab’s medical records from last year, the latter because they couldn’t be relevant to this suit because they couldn’t affect what might happen to Dhiab going forward — in spite of the fact that the SOPs remain unchanged.

This is all cross-allegation at this point; we may find out more when the government has to start turning over this stuff in June.

But it seems remarkable, the way the government has hidden details from last year, even while controlling Dhiab’s force feeding status and with it their legal argument.


April 18, 2014: Motion for preliminary injunction, with sealed supplemental memorandum

April 22, 2014: Dhiab speaks to lawyers

April 23, 2014: Dhiab resumes skipping meals

April 24, 2014 Status report

May 7, 2014: Sealed opposition to preliminary injunction

May 12, 2014: Sealed reply to opposition; government refuses to provide 2013 medical records, videos, restraint chair SOP

May 13, 2014: Emergency motion to preserve evidence; Dhiab placed back on force feeding list; nurses start cajoling him about eating

May 14, 2014: Order to reply to emergency motion; according to his lawyer, Jon Eisenberg, Dhiab force fed (all other force feeding details come from Eisenberg)

May 15, 2014: Opposition to emergency motion; according to filing, Dhiab had not yet been force fed; Dhiab force fed in afternoon

May 16, 2014: Reply to opposition to emergency motion; Kessler issues TRO; Dhiab claims Sergeant harasses him about a FCE

May 21, 2014: Status report hearing

May 22, 2014: Kessler does not reissue TRO

May 23, Kessler orders partial disclosure; documents unsealed; Dhiab force fed

May 24: Dhiab force fed twice

May 25: Dhiab force fed twice

May 26: Dhiab voluntarily takes food and nutrient

No Protection for International Communications: Russ Feingold Told Us So

Both the ACLU’s Jameel Jaffer and EFF have reviews of the government’s latest claims about Section 702. In response to challenges by two defendants, Mohamed Osman Mohamud and Jamshid Muhtorov, to the use of 702-collected information, the government claims our international communications have no Fourth Amendment protection.

Here’s how Jaffer summarizes it:

It’s hardly surprising that the government believes the 2008 law is constitutional – government officials advocated for its passage six years ago, and they have been vigorously defending the law ever since. Documents made public over the last eleven-and-a-half months by the Guardian and others show that the NSA has been using the law aggressively.

What’s surprising – even remarkable – is what the government says on the way to its conclusion. It says, in essence, that the Constitution is utterly indifferent to the NSA’s large-scale surveillance of Americans’ international telephone calls and emails:

The privacy rights of US persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-US persons located outside the United States.

That phrase – “if not completely eliminated” – is unusually revealing. Think of it as the Justice Department’s twin to the NSA’s “collect it all”.

[snip]

In support of the law, the government contends that Americans who make phone calls or sends emails to people abroad have a diminished expectation of privacy because the people with whom they are communicating – non-Americans abroad, that is – are not protected by the Constitution.

The government also argues that Americans’ privacy rights are further diminished in this context because the NSA has a “paramount” interest in examining information that crosses international borders.

And, apparently contemplating a kind of race to the bottom in global privacy rights, the government even argues that Americans can’t reasonably expect that their international communications will be private from the NSA when the intelligence services of so many other countries – the government doesn’t name them – might be monitoring those communications, too.

The government’s argument is not simply that the NSA has broad authority to monitor Americans’ international communications. The US government is arguing that the NSA’s authority is unlimited in this respect. If the government is right, nothing in the Constitution bars the NSA from monitoring a phone call between a journalist in New York City and his source in London. For that matter, nothing bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas.

I tracked Feingold’s warnings about Section 702 closely in 2008. That’s where I first figured out the risk of what we now call back door searches, for example. But I thought his comment here was a bit alarmist.

As I’ve learned to never doubt Ron Wyden’s claims about surveillance, I long ago learned never to doubt Feingold’s.

 

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Emptywheel Twitterverse
emptywheel @Steplor Yes. He emphasized China's theft and ignored the other two.
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bmaz RT @APDiploWriter: .@AmbassadorRice takes the stage at the National Leadership Assembly for #Israel.
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JimWhiteGNV RT @cocktailhag: Right out of our drone playbook. @JimWhiteGNV They learned that from us.
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JimWhiteGNV Dear @BarackObama: it is clear that Netanyahu openly defies your call for ending the killing. Cut off all funds to him now!
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bmaz .@AnthonyMKreis @JoshACLU @JoshMBlackman Yeah, I don't understand logic at all tactically; unless he is just doing for pure political cover
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JimWhiteGNV RT @ClintSharpe: @JimWhiteGNV pls RT: MUST-READ analysis on Gaza, including medical research re. Palestinians: http://t.co/lBAzyWcdnh
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JimWhiteGNV And US tax dollars fund these war crimes. Make it stop now!
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JimWhiteGNV War crimes on top of war crimes. Israel bombs UN school full of refugees, then shoots at first responders.
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JimWhiteGNV RT @Mogaza: AMBULANCE CREW ARE UNDER GUNFIRE NOW!
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JimWhiteGNV RT @Mogaza: more bombings in Maghazi, Nussirat and... OK, now as I type Israeli tank shell hit Bahrain school of UNRWA in Tel Al Hawwa #Gaza
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JimWhiteGNV RT @Gulnuray: Children being killed mercilessly on the first day of Eid.. Damn it. There are no words for this..
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bmaz @CopperTalkAZ @barrettmarson @MCRecorderElect Ask her how Mark is doing these days.
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