Unitary Executive

50 Years: That Day, JFK and Today

UnknownWhere were you fifty years ago today? If you were old enough to remember at all, then you undoubtedly remember where you were on Friday November 22, 1963 at 12:30 pm central standard time.

I was at a desk, two from the rear, in the left most row, in Mrs. Hollingshead’s first grade class. Each kid had their own desk, and they were big, made out of solid wood and heavy. They had to be heavy, of course, because they were going to protect us when we ducked and covered from a Soviet nuclear strike. There were, as there were in most elementary school classrooms of the day, a large clock and a big speaker on the wall up above the teacher’s desk.

I can’t remember what subject we were working on, but the principal’s voice suddenly came over the loudspeaker. This alone meant there was something important up, because that only usually occurred for morning announcements at the start of the school day and for special occasions. The voice of Mr. Flake, the principal, was somber, halting and different; perhaps detached is the word. There was a prelude to the effect that this was a serious moment and that the teachers should make sure that all students were at their desks and that all, both young and old, were to pay attention.

There had occurred a tragic and shocking event that we all needed to know about. Our attention was required.

Then the hammer fell and our little world literally caved in.

President John Fitzgerald Kennedy had been assassinated. Shot and killed in Dallas Texas. Then without a moment’s pause, we were told that the nation was safe, Vice-President Johnson was in charge, the government was functioning and that we need not have any concerns about our own safety. We were not at war.

Twenty four some odd little hearts stopped, plus one from Mrs. Hollingshead. You could literally feel the life being sucked out of the room like air lost to a vacuum. Many of us began looking out the window, because no matter what Mr. Flake said, if our President was dead, we were at war and the warheads were coming. They had to be in the sky. They were going to be there.

Unlike the hokey color coded terror alerts, ginned up fear mongering of Bush/Cheney, Ashcroft and Ridge, and today the terroristic fearmongering of Keith Alexander, James Clapper, Mike Rogers and Dianne Feinstein, things were dead nuts serious at the height of the cold war. If President Kennedy had been killed, we were at war; the missiles were on their way. Had to be. Looking back, the school officials and teachers had to have been as devastated and afraid as we were, yet they were remarkable. They kept themselves in one piece, held us together, talked and comforted us into calm.

We had not been back in class from lunch break for long; it was still early afternoon in the west. Before the announcement was made, the decision by the school officials had been made to send us home. The busses would be lined up and ready to go in twenty minutes. Until then there would be a brief quiet period and then the teachers would talk to us and further calm the situation. Then off we would go to try to forge a path with our families, who would need us as much as we Continue reading

Lavabit and The Definition of US Government Hubris

Graphic by Darth

Graphic by Darth

Well, you know, if you do not WANT the United States Government sniffing in your and your family’s underwear, it is YOUR fault. Silly American citizens with your outdated stupid piece of paper you call the Constitution.

Really, get out if you are a citizen, or an American communication provider, that actually respects American citizen’s rights. These trivialities the American ethos was founded on are “no longer operative” in the minds of the surveillance officers who claim to live to protect us.

Do not even think about trying to protect your private communications with something so anti-American as privacy enabling encryption like Lavabit which only weakly, at best, even deigned to supply.

Any encryption that is capable of protecting an American citizen’s private communication (or even participating in the TOR network) is essentially inherently criminal and cause for potentially being designated a “selector“, if not target, of any number of searches, whether domestically controlled by the one sided ex-parte FISA Court, or hidden under Executive Order 12333, or done under foreign collection status and deemed “incidental”. Lavabit’s Ladar Levinson knows.

Which brings us to where we are today. Let Josh Gerstein set the stage:

A former e-mail provider for National Security Agency leaker Edward Snowden, Lavabit LLC, filed a legal brief Thursday detailing the firm’s offers to provide information about what appear to have been Snowden’s communications as part of a last-ditch offer that prosecutors rejected as inadequate.

The disagreement detailed in a brief filed Thursday with the U.S. Court of Appeals for the Fourth Circuit resulted in Lavabit turning over its encryption keys to the federal government and then shutting down the firm’s secure e-mail service altogether after viewing it as unacceptably tainted by the FBI’s possession of the keys.

I have a different take on the key language from Lavabit’s argument in their appellate brief though, here is mine:

First, the government is bereft of any statutory authority to command the production of Lavabit’s private keys. The Pen Register Statute requires only that a company provide the government with technical assistance in the installation of a pen- trap device; providing encryption keys does not aid in the device’s installation at all, but rather in its use. Moreover, providing private keys is not “unobtrusive,” as the statute requires, and results in interference with Lavabit’s services, which the statute forbids. Nor does the Stored Communications Act authorize the government to seize a company’s private keys. It permits seizure of the contents of an electronic communication (which private keys are not), or information pertaining to a subscriber (which private keys are also, by definition, not). And at any rate it does not authorize the government to impose undue burdens on the innocent target business, which the government’s course of conduct here surely did.

Second, the Fourth Amendment independently prohibited what the government did here. The Fourth Amendment requires a warrant to be founded on probable cause that a search will uncover fruits, instrumentalities, or evidence of a crime. But Lavabit’s private keys are none of those things: they are lawful to possess and use, they were known only to Lavabit and never used by the company to commit a crime, and they do not prove that any crime occurred. In addition, the government’s proposal to examine the correspondence of all of Lavabit’s customers as it searched for information about its target was both beyond the scope of the probable cause it demonstrated and inconsistent with the Fourth Amendment’s particularity requirement, and it completely undermines Lavabit’s lawful business model. General rummaging through all of an innocent business’ communications with all of its customers is at the very core of what the Fourth Amendment prohibits.

The legal niceties of Lavabit’s arguments are thus:

The Pen Register Statute does not come close. An anodyne mandate to provide information needed merely for the “unobtrusive installation” of a device will not do. If there is any doubt, this Court should construe the statute in light of the serious constitutional concerns discussed below, to give effect to the “principle of constitutional avoidance” that requires this Court to avoid constructions of statutes that raise colorable constitutional difficulties. Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 156–57 (4th Cir. 2010).

And, later in the pleading:

By those lights, this is a very easy case. Lavabit’s private keys are not connected with criminal activity in the slightest—the government has never accused Lavabit of being a co-conspirator, for example. The target of the government’s investigation never had access to those private keys. Nor did anyone, in fact, other than Lavabit. Given that Lavabit is not suspected or accused of any crime, it is quite impossible for information known only to Lavabit to be evidence that a crime has occurred. The government will not introduce Lavabit’s private keys in its case against its target, and it will not use Lavabit’s private keys to impeach its target at trial. Lavabit’s private keys are not the fruit of any crime, and no one has ever used them to commit any crime. Under those circumstances, absent any connection between the private keys and a crime, the “conclusion[] necessary to the issuance of the warrant” was totally absent. Zurcher, 436 U.S., at 557 n.6 (quoting, with approval, Comment, 28 U. Chi. L. Rev. 664, 687 (1961)).

What this boils down to is, essentially, the government thinks the keys to Lavabit’s encryption for their customers belong not just to Lavabit, and their respective customers, but to the United States government itself.

Your private information cannot be private in the face of the United States Government. Not just Edward Snowden, but anybody, and everybody, is theirs if they want it. That is the definition of bullshit.

[Okay, big thanks to Darth, who generously agreed to let us use the killer Strangelovian graphic above. Please follow Darth on Twitter]

The Leahy-Sensenbrenner Language on Back Door Searches Improves But Doesn’t Eliminate the Back Door

As the top Intelligence Community lawyers have made clear, the IC maintains it can search US person data incidentally collected under Section 702 without any suspicion, as well as for the purposes of making algorithms, cracking encryption, and to protect property.

The Leahy-Sensenbrenner bill tries to rein in this problem. And its fix is far better than what we’ve got now. But it almost certainly won’t fix the underlying problem.

Here’s what the law would do to the “Limitations” section of Section 702. The underlined language is new.

(b) Limitations

(1) IN GENERAL.—An acquisition

(A) may not intentionally target any person known at the time of acquisition to be located in the United States;

(B) may not intentionally target a person reasonably believed to be located outside the United States if a significant purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;

(C) may not intentionally target a United States person reasonably believed to be located outside the United States;

(D) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and

(E) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

(2) CLARIFICATION ON PROHIBITION ON SEARCHING OF COLLECTIONS OF COMMUNICATIONS OF UNITED STATES PERSONS.—

(A) IN GENERAL.—Except as provided in subparagraph (B), no officer or employee of the United States may conduct a search of a collection of communications acquired under this section in an effort to find communications of a particular United States person (other than a corporation).

Continue reading

False Prophet of Adequate Congressional Oversight Finds Congressional Ignorance Unnewsworthy

I was going to leave this post, in which Ben Wittes complains that WaPo published details of NSA’s collection of millions of contact lists, which he didn’t find at all newsworthy, well enough alone.

Here the public interest in disclosure seems, at least to me, remarkably weak, after all. At the policy level, the entire story amounts to nothing more than the proposition that NSA is under 12333 collecting large volumes of live-stream data, storing it, and protecting U.S. person material within that data only through minimization requirements. We knew all of that already.

So what does this story reveal that we didn’t already know? A specific collection method that people can now frustrate and a particular interest in collecting contact lists. In other words, here the Post does not seem to be balancing the costs of the disclosure against its benefit to the public interest. The costs, rather, are the benefit to the public interest. Put another way, I can’t quite shake the feeling that my old newspaper is now blowing secrets merely for the sake of doing so.

But his response to this post from Conor Freidersdorf convinced me to do a post. He’s written about 40 tweets in response, asserting things like, “there is no good argument that this sort of activity is illegal under current law.” In all that tweeting, he did not, however, respond to what I thought was a pretty decent argument this sort of activity might be illegal under current law.

Two years ago, then FISA Court Judge John Bates considered the legality of content collected off US switches. He found the practice, as had been conducted for over 3 years, violated both Section 702 of FISA Amendments Act and the Fourth Amendment because it intentionally collected US person data (NSA’s apologists usually obscure this last point, but Bates’ opinion was quite clear that this was intentional collection). To make the collection “reasonable” under a special needs exception, he required NSA to follow more stringent minimization procedures than already required under Section 702, effectively labeling some of the data and prohibiting the NSA from using US person data except in limited circumstances.

That collection differs from the contact list collection revealed by the WaPo in several ways:

The contact lists are collected overseas

WaPo’s sources are quite clear: this collection would be illegal in the US. They get around that restriction by collecting the data overseas.

The NSA has not been authorized by Congress or the special intelligence court that oversees foreign surveillance to collect contact lists in bulk, and senior intelligence officials said it would be illegal to do so from facilities in the United States. The agency avoids the restrictions in the Foreign Intelligence Surveillance Act by intercepting contact lists from access points “all over the world,” one official said, speaking on the condition of anonymity to discuss the classified program. “None of those are on U.S. territory.”

It’s not clear whether the contact list counts as metadata or content

The collection reviewed by Bates was clearly content: Internet messages collected because a selector appeared in the body of the message. With the contact lists, I could see the government claiming it was just metadata, and therefore (incorrectly, in my opinion but not in current law) subject to a much lower standard of protection. Except (as noted) WaPo’s sources admit this would be illegal if collected in the US, probably because NSA is collecting content as well.

Each day, the presentation said, the NSA collects contacts from an estimated 500,000 buddy lists on live-chat services as well as from the inbox displays of Web-based e-mail accounts.

[snip]

Contact lists stored online provide the NSA with far richer sources of data than call records alone. Address books commonly include not only names and e-mail addresses, but also telephone numbers, street addresses, and business and family information. Inbox listings of e-mail accounts stored in the “cloud” sometimes contain content, such as the first few lines of a message.

This data is subjected to a much lower standard of minimization than that imposed by Bates

In his flurry of tweets, Ben keeps repeating that the US person contact lists collected under this program are protected by minimization, so it’s all good. But minimization for Executive Order 12333 collection is not as rigorous as minimization under Section 702, and certainly doesn’t include the special handling that Bates required to make the Section 702 upstream collection compliant with the Fourth Amendment. So even for those who believe minimization on bulk collection gets you to compliance with the Fourth Amendment, it’s unclear whether the minimization provided for this collection does, and given Bates’ ruling, there’s reason to believe it does not.

Neither Congress nor the FISA Court oversee this collection closely

This is the part of the WaPo story that a guy like Ben who wails NAKED! every time someone questions whether there’s adequate oversight ought to have noted. A single source claimed this program includes checks and balances. But as WaPo lays out, these aren’t checks and balances like those protecting other US person collections.

A senior U.S. intelligence official said the privacy of Americans is protected, despite mass collection, because “we have checks and balances built into our tools.”

NSA analysts, he said, may not search within the contacts database or distribute information from it unless they can “make the case that something in there is a valid foreign intelligence target in and of itself.”

In this program, the NSA is obliged to make that case only to itself or others in the executive branch. With few exceptions, intelligence operations overseas fall solely within the president’s legal purview. The Foreign Intelligence Surveillance Act, enacted in 1978, imposes restrictions only on electronic surveillance that targets Americans or takes place on U.S. territory.

[snip]

Sen. Dianne Feinstein, the California Democrat who chairs the Senate Intelligence Committee, said in August that the committee has less information about, and conducts less oversight of, intelligence gathering that relies solely on presidential authority. Continue reading

Further Implications of UndieBomb II Leaker Guilty Plea

As you have likely heard by now, a former FBI agent has agreed to plead guilty to leaking material about the second underwear bomb attempt to reporters in May of 2012. Charlie Savage of the New York Times has the primary rundown:

A former Federal Bureau of Investigation agent has agreed to plead guilty to leaking classified information to The Associated Press about a foiled bomb plot in Yemen last year, the Justice Department announced on Monday. Federal investigators said they identified him after obtaining phone logs of Associated Press reporters.

The retired agent, a former bomb technician named Donald Sachtleben, has agreed to serve 43 months in prison, the Justice Department said. The case brings to eight the number of leak-related prosecutions brought under President Obama’s administration; under all previous presidents, there were three such cases.

“This prosecution demonstrates our deep resolve to hold accountable anyone who would violate their solemn duty to protect our nation’s secrets and to prevent future, potentially devastating leaks by those who would wantonly ignore their obligations to safeguard classified information,” said Ronald C. Machen Jr., the United States attorney for the District of Columbia, who was assigned to lead the investigation by Attorney General Eric H. Holder Jr.

In a twist, Mr. Sachtleben, 55, of Carmel, Ind., was already the subject of a separate F.B.I. investigation for distributing child pornography, and has separately agreed to plead guilty in that matter and serve 97 months. His total sentence for both sets of offenses, should the plea deal be accepted by a judge, is 140 months.

Here is the DOJ Press Release on the case.

Here is the information filed in SDIN (Southern District of Indiana). And here is the factual basis for the guilty plea on the child porn charges Sachtleben is also pleading guilty to.

So Sachtleben is the leaker, he’s going to plead guilty and this all has a nice beautiful bow on it! Yay! Except that there are several troubling issues presented by all this tidy wonderful case wrap up.

First off, the information on the leak charges refers only to “Reporter A”, “Reporter A’s news organization” and “another reporter from Reporter A’s news organization”. Now while the DOJ may be coy about the identities, it has long been clear that the “news organization” is the AP and “Reporter A” and “another reporter” are AP national security reporters Matt Apuzzo and Adam Goldman (I’d hazard a guess probably in that order) and the subject article for the leak is this AP report from May 7, 2012.

What is notable about who the reporters are, and which story is involved, is that this is the exact matter that was the subject of the infamous AP phone records subpoenas that were incredibly broad – over 20 business and personal phone lines. These subpoenas, along with those in the US v. Steven Kim case collected against James Rosen and Fox News, caused a major uproar about the sanctity of First Amendment press and government intrusion thereon.

The issue here is that Attorney General Eric Holder and the DOJ, as a result of the uproar over the Continue reading

Say Hello To Our New Friends At Just Security

Screen shot 2013-09-23 at 11.46.58 AMWe do a lot of things here at Emptywheel including occasionally, goofing off. But our primary focus has always been the intersection of security issues, law and politics. I think I can speak for Marcy and Jim, and I certainly do for myself, we would love it if that intersection were not so critical in today’s world. But, alas, it is absolutely critical and, for all the voices out there in the community, there are precious few that deep dive into the critical minutiae.

Today we welcome a new and important player in the field, the Just Security Blog. It has a truly all star and broad lineup of contributors (most all of whom are listed as “editors” of one fashion or another), including good friends such as Steve Vladeck, Daphne Eviatar, Hina Shamsi, Julian Sanchez, Sarah Knuckey and many other quality voices. It is an ambitious project, but one that, if the content already posted on their first day is any indication, will be quite well done. The home of Just Security is the New York University School of Law, so they will have ample resources and foundation from which to operate for the long run.

Ironically, it was little more than three years ago (September 1, 2010 actually) that the Lawfare Blog went live to much anticipation (well, at least from me). Whether you always agree with Ben Wittes, Bobby Chesney, Jack Goldsmith and their contributors or not, and I don’t always, they have done this field of interest a true service with their work product, and are a fantastic and constantly evolving resource. There is little question but that Just Security intends to occupy much of the same space, albeit it in a complimentary as opposed to confrontational manner. In fact, it was Ben Wittes who hosted the podcast with Steve Vladeck and Ryan Goodman that serves as the multi-media christening of Just Security.

Orin Kerr (who is also a must read at Volokh conspiracy), somewhat tongue in cheek, tweeted that the cage match war was on between Lawfare and Just Security. That was pretty funny actually, but Orin made a more serious point in his welcome post today, and a point that I think will greatly interest the readers of Emptywheel:

Whereas Lawfare tend to have a center or center-right ideological orientation, for the most part, Just Security‘s editorial board suggests that it will have a progressive/liberal/civil libertarian voice.

From my understanding, and my knowledge of the people involved, I believe that to be very much the case. And that is a very good thing for us here, and the greater discussion on so much of our work.

So, say hello to our new friends at Just Security, bookmark them and give them a read. Follow them on Twitter. You will be better informed for having done so.

Operation Ballsack Labor Day Football Trash Talk

Hello. Is there anybody in there? Just nod if you can hear me.

I am not sure how well the Trash Talk Machine is greased after such egregious neglect. But, we can only do what we do, and carry on. And those skilz have NOT been forgotten jack. So saddle up cowboys and cowgirls.

You would think being a blogger is an easy, Cheetos filled, lifestyle. Not the case. It is hard work, hard work I tell ya. I have suffered the indignation of Marcy and Jim yammering about wanting “trash this” and “trash that”. Weeeeelllllll that is so much SPAM! So, as I said earlier, it’s not easy, you know. I get no respect!

To make a quick comment on the title of this 2013 football season opening trash, shit is truly fucked up and bullshit. We have Mr. Constitutional Nobel Scholar President agitating to make unilateral bizarrely unnecessary war on Syria….apparently because he screwed up and drew a moronic “red line” in the sand and now has to prove he actually has bolas, in addition to stupidity and hubris. The man who when seeking votes to be elected in 2007-2008 claimed war without Congressional assent was wrong, and whose Vice-Predident called such unsanctioned war bullshittery and an “impeachable offense”, now insists without the UN, without the Brits, and with a coalition of effectively one (one who were previously described as “cheese eating surrender monkeys” not that long ago in American lore). But that is where we are now. Which is why the best name for this clusterfuck is “Operation Ballsack“. Yes, it is all about Obama’s balls, and his desperate need to prove he actually has a primordial pair.

Huh? Oh, wait! This was supposed to be football Trash Talk wasn’t it?!?!

Yikes, better get to that then. Last night was a pretty exciting open to the NCAA 2013 schedule. The ‘Ole Ball Coach Spurrier and the ‘Cocks did not seem all that animated, but still clocked a fairly solid NC Tarheel team. Looked like Vady was gonna take a bite off the ‘Ole Miss Rebels, but Ole Miss tailback Jeff Scott let loose with a 75 yard TD romp with 1:07 left, giving the Rebels a 39-35 last minute win. Good stuff. In other news, Lane Kiffen proves the question of why he has not been fired yet is still very salient by coaching a narrow win for Tommy Trojan over the Rainbows. Mighty Troy barely made it over the Rainbows. Yay. If that is all USC has, even the Sun Devils are going to wax them this year (a game I will be attending by the way). also, from Friday night, let me just say that Sparty has some VERY sticky fingered defenders. Look out B1G.

Well, what else is up I wonder? Hmmmm, appears some fella named “Manziel” was suspended half a game for something. Guess it wasn’t anything bad, cause Dez Bryant got suspended a whole season for eating dinner with Neon Deion Sanders. I sign my name on things a lot too. I get paid to do so. Not sure who would sign thousands of items for zip, nuthin, free. Apparently the crack investigators and accountability specialists at the NCAA found no problem though. And you KNOW how sane they are, cause they banned Penn State from all bowls for four years without having any NCAA violation whatsoever present. Ugh.

Alright. Games. Real ones are being played this weekend. Battle manufactured where it should be. Naturally. By a nerd at ESPN instead of that fake Operation Obama Ballsack baloney.

The game of the weekend looks to be Georgia at Clemson. These are two top ten worthy teams, if not potential national championship contenders. Special players abound everywhere on both teams, including Sammy Watkins the super receiver for the Tigers, and Tajh Boyd his quarterback. For the Bulldogs, Aaron Murray may be the best QB in the conference, and that includes Johnny Football. Awesome game to have so early. Alabama hosting Virginia Tech is another unusual one to start off with. The Tide will roll them, but there could be a struggle. should be a way better game than the Tide expected.

Honorable mentions goes to TCU and LSU in neutral Texas, Boise State/Washington and Cal versus Northwestern. Tell us what you have and why!

The one other thing I want to address is the noggins of the NFL. As you may have heard, there was a settlement this week, and it heavily favored the NFL. The craven plantation owners admitted nothing, gave up no liability findings, and gave up a ridiculously cheap total sum as hard settlement. By the time lawyer’s fees and mandatory testing etc. is deducted, it is criminal how little was gotten for a class of at risk humans. Down the road, if these class members live, they and their representatives will be screaming bloody murder. Here is an outrageously great article laying out the factors, and doing so with the tart and sarcastic truth it deserves

This long Labor Day weekend’s music is from the one, the only, Ms. Linda Ronstadt. I have a real affinity for Linda, and haver seen her numerous times including a couple of very special ones. If there has ever been a better pure female vocal talent, I am not sure I have seen it. Pure, and with a range to die for. The singing voice may be silenced, but Linda is rocking on and fighting for the causes she believes in. And they are, and always have been, great, and the right, ones. Oh, also, in case you didn’t notice, she had a backup band on the first video. Chuck Berry, Keith Richards, Robert Cray and some other chaps. The second is the band she normally toured with (including Waddy Wachtel – but with Mike Botts on drums instead of Russ Kunkel, who I always saw) and, trust me, they were absolutely killer, and very cool people to boot.

That’s it for now. Let Willis, and one and all, rock this joint. We are Livin In The USA. All things considered, it is still pretty fucking grand. Enjoy the holiday weekend my friends.

Bradley Manning’s Sentence, Parole and Appeal Implications

CryingJusticeOn Monday I laid out the dynamics that would be in play for the court in considering what sentence to give Bradley Manning in light of both the trial evidence and testimony, and that presented during the sentencing phase after the guilty verdict was rendered. Judge Lind has entered her decision, and Bradley Manning has been sentenced to a term of 35 years, had his rank reduced to E-1, had all pay & allowances forfeited, and been ordered dishonorably discharged. This post will describe the parole, appeal and incarceration implications of the sentence just imposed.

Initially, as previously stated, Pvt. Manning was credited with the 112 days of compensatory time awarded due to the finding that he was subjected to inappropriate pre-trial detention conditions while at Quantico. Pvt. Manning was credited with a total 1294 days of pre-trial incarceration credit for the compensatory time and time he has already served since the date of his arrest.

Most importantly at this point, Manning was sentenced today to a prison term of 35 years and the issue of what that sentence means – above and beyond the credit he was given both for compensatory time and time served – is what is critical going forward. The following is a look at the process, step by step, Bradley Manning will face.

The first thing that will happen now that Judge Lind has gaveled her proceedings to a close is the court will start assembling the record, in terms of complete transcript, exhibits and full docket, for transmission to the convening authority for review. It is not an understatement to say that this a huge task, as the Manning record may well be the largest ever produced in a military court martial. It will be a massive undertaking and transmission.

At the same time, the defense will start preparing their path forward in terms of issues they wish to argue. It is my understanding that Pvt. Manning has determined to continue with David Coombs as lead counsel for review and appeal, which makes sense as Coombs is fully up to speed and, at least in my opinion, has done a fantastic job. For both skill and continuity, this is a smart move.

The next step will be designation of issues to raise for review by the “convening authority”. In this case, the convening authority is Major General Jeffrey Buchanan, who heads, as Commanding General, the US Army’s Military District of Washington. This step is quite different than civilian courts, where a defendant proceeds directly to an appellate court.

The accused first has the opportunity to submit matters to the convening authority before the convening authority takes action – it’s not characterized as an “appeal,” but it’s an accused’s first opportunity to seek relief on the findings and/or the sentence. According to the Manual for Courts-Martial, Rule for Court-Martial 1105:

(a) In general. After a sentence is adjudged in any court-martial, the accused may submit matters to the convening authority in accordance with this rule.

(b) Matters which may be submitted.
(1) The accused may submit to the convening au­ thority any matters that may reasonably tend to af­ fect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence. The convening authority is only required to consider written submissions.
(2) Submissions are not subject to the Military Rules of Evidence and may include:
(A) Allegations of errors affecting the legality of the findings or sentence;
(B) Portions or summaries of the record and copies of documentary evidence offered or intro­ duced at trial;
(C) Matters in mitigation which were not avail­ able for consideration at the court-martial; and
(D) Clemency recommendations by any mem­ber, the military judge, or any other person. The defense may ask any person for such a recommendation.

Once the convening authority has the full record and the defense has designated its matters for review, Buchanan will perform his review and determine whether any adjustments to the sentence are appropriate, and that will be considered the final sentence. At this point, the only further review is by a traditional appeal process.

Generally, the level of appellate review a case receives depends on the sentence as approved by the Continue reading

Big-Footing Superpower Status Also about Legally Immune Commander in Chief(s)

In a piece making the obvious comparison between fugitive spy Robert Seldon Lady and accused Espionage fugitive Edward Snowden, Tom Englehardt writes off the press silence about presumed American assistance to Lady in fleeing an international arrest warrant as the reality of being the sole superpower.

It’s no less a self-evident truth in Washington that Robert Seldon Lady must be protected from the long (Italian) arm of the law, that he is a patriot who did his duty, that it is the job of the U.S. government to keep him safe and never allow him to be prosecuted, just as it is the job of that government to protect, not prosecute>, CIA torturers who took part in George W. Bush’s Global War on Terror.

So there are two men, both of whom, Washington is convinced, must be brought in: one to face “justice,” one to escape it.  And all of this is a given, nothing that needs to be explained or justified to anyone anywhere, not even by a Constitutional law professor president.  (Of course, if someone had been accused of kidnapping and rendering an American Christian fundamentalist preacher and terror suspect off the streets of Milan to Moscow or Tehran or Beijing, it would no less self-evidently be a different matter.)

Don’t make the mistake, however, of comparing Washington’s positions on Snowden and Lady and labeling the Obama administration’s words and actions “hypocrisy.”  There’s no hypocrisy involved.  This is simply the living definition of what it means to exist in a one-superpower world for the first time in history.  For Washington, the essential rule of thumb goes something like this: we do what we want; we get to say what we want about what we do; and U.N. ambassadorial nominee Samantha Powers then gets to lecture the world on human rights and oppression.

This version of how it all works is so much the norm in Washington that few there are likely to see any contradiction at all between the Obama administration’s approaches to Snowden and Lady, nor evidently does the Washington media.

Englehardt doesn’t mention Sabrina De Sousa’s claims about the CIA’s kidnapping of Osama Mustapha Hassan Nasr (Abu Omar) and Italy’s subsequent prosecution of those involved. Adding her in the mix makes it clear how closely immunity for the Commander in Chief and his top aides is part of this superpower big-footing.

De Sousa, who says she served as an interpreter for the kidnappers on a planning trip, but not in the operation itself, was convicted and sentenced in Italy in part because the government refused to invoke diplomatic immunity (she admits she worked for CIA, but was under official cover).

The kidnapping did not meet US standards for renditions, but Station Chief Jeff Castelli wanted to do one anyway, and pushed through its approval even without Italian cooperation.

Despite concerns with the strength of Castelli’s case, CIA headquarters still agreed to move forward and seek Rice’s approval, De Sousa said. She recalled reading a cable from late 2002 that reported that Rice was worried about whether CIA personnel “would go to jail” if they were caught.

In response, she said, Castelli wrote that any CIA personnel who were caught would just be expelled from Italy “and SISMi will bail everyone out.”

Of her CIA superiors, De Sousa said, “They knew this (the rendition) was bullshit, but they were just allowing it. These guys approved it based on what Castelli was saying even though they knew it never met the threshold for rendition.”

Asked which agency officials would have been responsible for reviewing the operation and agreeing to ask Rice for Bush’s authorization, De Sousa said they would have included Tenet; Tyler Drumheller, who ran the CIA’s European operations; former CIA Director of Operations James Pavitt and his then-deputy, Stephen Kappes; Jose Rodriguez, then the head of the CIA’s Counterterrorism Center, and former acting CIA General Counsel John Rizzo.

De Sousa says the Italians and Americans colluded to protect the highers up, while prosecuting her and other lower level people.

De Sousa accused Italian leaders of colluding with the United States to shield Bush, Rice, Tenet and senior CIA aides by declining to prosecute them or even demanding that Washington publicly admit to staging the abduction.

Calling the operation unjustified and illegal, De Sousa said Italy and the United States cooperated in “scape-goating a bunch of people . . . while the ones who approved this stupid rendition are all free.”

Note, she doesn’t say this, but some of the people in the chain of command for this kidnapping — in both the US and Italy — were also involved in planting the Niger forgeries used to start the Iraq War. And, of course, a number of the Americans were involved in the torture program and its cover-up.

Since then, De Sousa has used all legal avenues to blow the whistle on this kidnapping.

De Sousa said that she has tried for years to report what she said was the baseless case for Nasr’s abduction and her shoddy treatment by the CIA and two administrations.

Her pleas and letters, however, were ignored by successive U.S. intelligence leaders, the CIA inspector general’s office, members and staff of the House and Senate intelligence committees, Rice, former Secretary of State Hillary Clinton and Attorney General Eric Holder, said De Sousa.

Assuming De Sousa’s story is correct (and an anonymous source backs its general outlines), then it adds one more reason why Lady quietly got to return to the US while Snowden will be loudly chased around the world.

What Americans are buying off on — along with superpower status that may defund schools in exchange for empire — with their silence about the disparate treatment of Sady and Snowden, then, is not just the ego thrill of living in a thus far unrivaled state.

It’s also, implicitly, the kind of immunity for the Commander in Chief and executive branch that shouldn’t exist in democratic states.

On the Growing Fight Against America’s Secret Enemies

Cora Currier describes the absurd response she got when she asked for a list of our enemies.

At a hearing in May, Sen. Carl Levin, D-Mich., asked the Defense Department to provide him with a current list of Al Qaeda affiliates.

The Pentagon responded – but Levin’s office told ProPublica they aren’t allowed to share it. Kathleen Long, a spokeswoman for Levin, would say only that the department’s “answer included the information requested.”

A Pentagon spokesman told ProPublica that revealing such a list could cause “serious damage to national security.”

“Because elements that might be considered ‘associated forces’ can build credibility by being listed as such by the United States, we have classified the list,” said the spokesman, Lt. Col. Jim Gregory. “We cannot afford to inflate these organizations that rely on violent extremist ideology to strengthen their ranks.”

Thing is, this is not entirely new. At least until February, the government had been refusing to give Ron Wyden a list of every country in which we’ve used lethal force. And he’s on the Intelligence Committee!

Indeed, Currier suggests one reason this might be classified would be if Obama was fighting these enemies under Inherent Authority.

The AUMF isn’t the only thing the government relies on to take military action. In speeches and interviews Obama administration officials also bring up the president’s constitutional power to defend the country, even without congressional authorization.

But, as Jack Goldsmith notes, something else seems to be going on here, because the response Currier got suggests the list is classified Secret, not whatever Top Secret compartment the government maintained for a year Wyden couldn’t access.

The language of the DOD release suggests that at least a few more groups (or elements of groups), and maybe many more groups (or elements), are on the AUMF “list.”  The existence of a “list” (which was unclear in the May 2013 AUMF hearing), and the fact that there may be at least a few groups (or elements of groups) on it, is itself news in the AUMF-watcher world.  It is also consistent with suggestions and implications in reports, such as in Mark Mazzetti’s book, that the AUMF is being invoked in various ways by DOD Special Operations Forces for non-covert military activities in many countries around the globe.

Third, it is entirely unclear why the USG can acknowledge some groups without unduly “inflating” them, and not others.  And this in turn makes me skeptical of the notion of “inflation.”  To be sure, some groups that are AUMF-able (such as, perhaps, the Haqqani network, a known but not acknowledged U.S. target) perhaps cannot be named because the operations are covert actions and involve deals of non-acknowledgment with foreign governments (or elements of foreign governments).  But that cannot be a comprehensive explanation for DOD’s secrecy.  By stating that disclosure of groups on the list would “reasonably be expected to cause serious damage to the national security,” DOD has tipped off that the list is classified only at the secret (as opposed to top secret) level.  (See Section 1.2 of E.O. 13,256.)  Covert actions are typically classified at the top secret level.  This implies (but does not prove) that some if not all of the AUMF-groups in question are not subjects of covert actions.

But remember: There are two other instances where the government has refused to clarify who is, and is not, an enemy.

When a bunch of people who have talked to, but not assisted, terrorists sued to stop the NSAA’s provisions allowing indefinite detention, the government refused (until it became convenient) to say whether they could be detained or not.

Then, as part of the Bradley Manning charges, the government kept one of the enemies it was going to prove he had aided classified (but ultimately didn’t argue he had aided that enemy in court).

Prosecutors accuse him of “aiding the enemy,” and three in particular: al-Qaida, al-Qaida in the Arabian Peninsula and a “classified enemy” referred to by a Bates number, which is a form of legal document identification.
Three professors of military law – Yale Law School’s Eugene Fidell, Duke University School of Law’s Scott Silliman and Texas Tech University School of Law’s Richard Rosen – told Courthouse News they had never heard of a case involving a “classified enemy.”
After being informed that the phrase stumped the professors, a military spokeswoman insisted that the confusion stemmed from a misunderstanding, because “who the enemy ‘is’ is not classified.”
“What ‘is’ classified is that our government has confirmed that this enemy is in receipt of certain compromised classified information, and that the means and methods of collection that the government has employed to make that determination are classified,” the spokeswoman said in an email.

One thing about all these instances — refusing to share a list of lethal force targeted countries with Ron Wyden, sharing a classified list with Carl Levin only on request, refusing to tell Americans (and one member of parliament from Iceland) whether they are counted as enemies, and refusing to tell Manning which enemy he supposed aided — is that they provide the executive maximum flexibility. That may not be the only thing this extreme secrecy about enemies does. But it is one thing it does do, along with hiding how broad the unilaterally declared war under Inherent Authority is.

It sure does make things confusing, though!

Emptywheel Twitterverse
JimWhiteGNV RT @emptywheel: For 10 years some of America's purportedly top journos have been willingly using euphemism long since proven false, "enhanc…
5mreplyretweetfavorite
emptywheel For 10 years some of America's purportedly top journos have been willingly using euphemism long since proven false, "enhanced interrogation"
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JimWhiteGNV Feels like it some days. RT @bmaz: @laRosalind @JimWhiteGNV @emptywheel Honestly, I don't think Jim is that old.
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bmaz @robertcaruso Dude, I respect you and all, but I live in AZ; I'm supposed to go to VA for decent tacos? #ComeOnMan
8mreplyretweetfavorite
bmaz @robertcaruso What? Where?? Tacos???
12mreplyretweetfavorite
bmaz @laRosalind @JimWhiteGNV @emptywheel Honestly, I don't think Jim is that old.
12mreplyretweetfavorite
bmaz @AZ_Dream_Killer Wait a minute!! Did you get that pole cat avatar from me??
14mreplyretweetfavorite
emptywheel That has to stunt your brain after a while, just like Communist propaganda. It's an empty performance. "Critics say amounts to torture"
15mreplyretweetfavorite
emptywheel I mean, what does it do to your brain if you have to keep repeating "human rights activists consider to be torture" for 10 years?
16mreplyretweetfavorite
bmaz @laRosalind @JimWhiteGNV @emptywheel Bruins basketball has been underwater, and under Arizona Wildcats, for decades now. cc @AZ_Dream_Killer
18mreplyretweetfavorite
emptywheel RT @NicoleOzer: City records we found revealed that San Jose recently purchased a drone with DHS funding http://t.co/Q5rxaWU8Hp
26mreplyretweetfavorite
emptywheel @manish_vij And ends up using "enhanced interrogation." Wish that phrase would die.
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