New York Times Comes Tantalizingly Close to Admitting “Training” in Iraq Doesn’t Work

Never forget the ass-kissing little chickenshit who has been the driving force most failed training of Iraqi troops.

Never forget the ass-kissing little chickenshit who has been the driving force for most of the failed training of Iraqi troops.

In today’s New York Times, Rod Nordland speaks to a number of US troops currently deployed to Iraq yet again to train Iraqi troops. Shockingly, Nordland comes very close to explaining that the current deployment is likely to be meaningless since the repeated failures of earlier training make it likely that the current round of training also is likely to fail:

The current, woeful state of the Iraqi military raises the question not so much of whether the Americans left too soon, but whether a new round of deployments for training will have any more effect than the last.

Yes, indeed. We already know that all of the previous rounds of training Iraqi troops failed miserably. That indisputable fact allows Nordland to pose the question of whether this new round of training could be expected to somehow be successful after all those failures. Since the article offers no description of any changes in strategy or methods in this new round of training, it’s hard to see how the answer is anything other than a strong probability that this round of training also will fail.

The catastrophic demise of Iraq’s forces is staggering with the numbers Nordland presents. At its peak, the Iraqi military numbered 280,000. And yet once ISIS advanced, the melting away of multiple whole divisions of troops whittled Iraq down to a force that perhaps was as low as only 50,000. This current training effort, being carried out by 3000 US forces, is expected to add, at best, 30,000 Iraqi troops. Nordland admits, however, that the number is likely to be “far fewer”. Despite this depressing math, Nordland doesn’t get around to pointing out just how little impact such a small increase in Iraqi forces is likely to have even if their training somehow turned out to be successful.

But don’t despair. Our intrepid Speaker of the House is on duty to make sure that we continue repeating our training failures:

Boehner blamed “artificial constraints” on the 4,500 American trainers and advisers to the Iraqi army, suggesting that a slight increase in U.S. troops could occur if the Pentagon’s commanders suggested they were needed to help direct fighting against Islamic State forces. “They’re only there to train and advise the Iraqi army, and the fact is it’s just that – training and advising,” he said, dismissing fears that his proposal would lead to tens of thousands of additional U.S. troops locked in another bloody ground war.

“There’s more that we can do, with limited risk, and it wouldn’t require that many more people,” the speaker said.

“Please,” Boehner seems to be saying, “Let’s get back to a full war in Iraq, but without calling it war.” Presumably because the last one worked out so well.

Postscript: Marcy has been the one tracking maneuvers around the issue of an AUMF (even as recently as yesterday), but the Boehner quote above comes from a larger article about a possible new Iraq AUMF. Boehner is fighting Obama’s proposed AUMF. But he’s fighting it because he doesn’t want Obama to give back some of the unlimited war powers of the Executive:

“Until the president gets serious about fighting the fight, until he has a strategy that makes sense, there’s no reason for us to give him less authority than what he has today, which is what he’s asking for,” Boehner told a group of reporters Tuesday, following his trip with lawmakers to several Middle East hot spots during the congressional recess.

Take that, Mr. President. We won’t give you authority for this war until you ask for even more unfettered power than we already grant you!

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Hassanshahi Bids to Undermine the DEA Dragnet … and All Dragnets

Often forgotten in the new reporting on the DEA dragnet is the story of Shantia Hassanshahi, the Iranian-American accused of sanctions violations who was first IDed using the DEA dragnet. That’s a shame, because his case may present real problems not just for the allegedly defunct DEA dragnet, but for the theory behind dragnets generally.

As I laid out in December, as Hassanshahi tried to understand the provenance of his arrest, the story the Homeland Security affiant gave about the database(s) he used to discover Hassanshahi’s ties to Iran in the case changed materially, so Hassanshahi challenged the use of the database and everything derivative of it. The government, which had not yet explained what the database was, asked Judge Rudolph Contreras to assume the database was not constitutional, but to upheld its use and the derivative evidence anyway, which he did. At the same time, however, Contreras required the government to submit an explanation of what the database was, which was subsequently unsealed in January.

Not surprisingly, Hassanshahi challenged the use of a DEA database to find him for a crime completely unrelated to drug trafficking, first at a hearing on January 29. In response to an order from Contreras, the government submitted a filing arguing that Hassanshahi lacks standing to challenge the use of the DEA dragnet against him.

To the extent that defendant seeks to argue that the administrative subpoenas to telephone providers violated the statutory requirements of Section 876(a), he clearly lacks standing to do so. See, e.g., United States v. Miller, 425 U.S. 435, 444 (1976) (“this case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant”); Moffett, 84 F.3d at 1293-94 (defendant could not challenge a Section 876(a) subpoena to third party on the grounds that it exceeded the DEA’s statutory authority).

This is the argument the government currently uses to deny defendants notice on Section 215 use.

The government further argued that precedent permits it to use information acquired for other investigations.

DEA acquired information through use of its own investigatory techniques and for its own narcotics-related law enforcement purposes. DEA shared with HSI a small piece of this information to assist HSI in pursuing a non-narcotics law enforcement investigation. In doing so, DEA acted consistently with the longstanding legal rule that “[e]vidence legally obtained by one police agency may be made available to other such agencies without a warrant, even for a use different from that for which it was originally taken.” Jabara v. Webster, 691 F.2d 272, 277 (6th Cir. 1982) (quotation marks omitted); accord United States v. Joseph, 829 F.2d 724, 727 (9th Cir. 1987).

Applying an analogous principle, the D.C. Circuit has held that querying an existing government database does not constitute a separate Fourth Amendment search: “As the Supreme Court has held, the process of matching one piece of personal information against government records does not implicate the Fourth Amendment.” Johnson v. Quander, 440 F.3d 489, 498 (D.C. Cir. 2006) (citing Arizona v. Hicks, 480 U.S. 321 (1987)). The D.C. Circuit observed that a contrary rule would impose “staggering” consequences, placing “an intolerable burden” on law enforcement if each query of a government database “were subject to Fourth Amendment challenges.” Id. at 499.

This is a version of the argument the government has used to be able to do back door searches of Section 702 data.

It also argued there was no suppression remedy included in 21 USC 876, again a parallel argument it has made in likely Section 215 cases.

Finally, it also argued, in passing, that its parallel construction was permissible because, “While it would not be improper for a law enforcement agency to take steps to protect the confidentiality of a law enforcement sensitive investigative technique, this case raises no such issue.” No parallel construction happened, it claims, in spite of changing stories in the DHS affidavit.

Yesterday, Hassanshahi responded. (h/t SC) In it, his attorneys distinguished the use of the DEA dragnet for purposes not permitted by the law — a systematic violation of the law, they argue — from the use of properly collected data in other investigations.

Title 21 USC § 876 allows the government to serve an administrative subpoena in connection with a purely drug enforcement investigation. Government has systematically violated this statute for over a decade by using the subpoena process to secretly gather a database of telephony information on all Americans, and then utilizing the database (while disguising its source) in all manner of investigations in all fields not related to drugs at all.

[snip]

This was not a one-time or negligent statutory violation that happened to uncover evidence of another crime, or even the sharing of information legitimately gathered for one purpose with another agency. Cf. Johnson v. Quander, 440 F.3d 489 (D.C.Cir. 2006) (government may use DNA profiles gathered pursuant to and in conformance with statute for other investigations). By its very nature, the gathering of telephony information was repeated and systematic, as was the making available of the database to all government agencies, and all aspects of the scheme (from gathering to dissemination outside drug investigations) violated the statute.

But more importantly, Hassanshahi pointed to the government’s request — from before they were ordered to ‘fess up about this dragnet — that the Judge assume this dragnet was unconstitutional, to argue the government has already ceded the question of standing.

Defendant herein submits that a systematic statutory violation, or a program whose purpose is to violate the statute continuously over decades, presents a case of first impression not governed by Sanchez-Llamas or other government cases.

But the Court need not reach the novel issue because in the instant case, the government already conceded that use of the database was a constitutional violation of Mr. Hassanshahi’s rights. Indeed the Court asked this Court to assume the constitutional violation. Mem. Dec. p. 9. Where there is a statutory violation plus an individual constitutional violation, the evidence shall be suppressed even under government’s cited cases.

[snip]

Government now argues Mr. Hassanshahi “lacks standing” to contest the statutory violation. Again, government forgets it previously conceded that use of the database was unconstitutional, meaning unconstitutional as to defendant (otherwise the concession was meaningless and afforded no grounds to withhold information). Mr. Hassanshahi obviously has standing to assert a conceded constitutional violation.  [emphasis original]

In short, Hassanshahi is making a challenge to the logic behind this and a number of other dragnets, or demanding the judge suppress the evidence against him (which would almost certainly result in dismissal of the case).

We’ll see how Contraras responds to all this, but given that he has let it get this far, he may be sympathetic to this argument.

In which case, things would get fun pretty quickly. Because you’d have a defendant with standing arguing not just that the use of the DEA dragnet for non-DEA uses was unconstitutional, but also that all the arguments that underly the use of the phone dragnet and back door searches were unconstitutional. And he’d be doing so in the one circuit with a precedent on mosaic collection that could quickly get implicated here. This case, far more than even the ACLU lawsuit against the Section 215 database (but especially the Smith and Klayman challenges), and even than Basaaly Moalin’s challenge to the use of the 215 dragnet against him, would present real problems for the claims to dragnet legally.

In other words, if this challenge were to go anywhere, it would present big problems not only for other uses of the DEA dragnet, but also, possibly, for the NSA dragnets.

Mind you, there is no chance in hell the government would let it get that far. They’d settle with Hassanshahi long before they permitted that to happen in a bid to find a way to bury this DEA dragnet once and for all and retain their related arguments for use with the NSA dragnets and related collection.

But we might get the dragnetters sweat just a bit.

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Michael Horowitz’ Monthly Complaint about FBI and DEA Stonewalling

The House Oversight Committee is having a hearing on the problems law enforcement agencies have with sexual harassment and misconduct, as reported by DOJ’s Inspector General. DEA Administrator Michele Leonhart will be offering amusing testimony about how the DEA has given its Agents clear instructions that they’re really the best evah™ but they need to stop breaking the law.

But because I’m an IG nerd, I’m as interested in what has become a monthly event during DOJ Inspector General Michael Horowitz’ tenure, when he provides details of FBI and DEA’s latest stonewalling of oversight. Here’s today’s version:

Further, we cannot be completely confident that the FBI and the DEA provided us with all information relevant to this review. When the OIG finally received from the FBI and DEA the requested information without extensive redactions, we found that it still was incomplete. For example, we determined that the FBI removed a substantial number of cases from the result of their search and provided additional cases to the OIG only after we identified some discrepancies. These cases were within the scope of our review and should have been provided as requested. Likewise, the DEA also provided us additional cases only after we identified some discrepancies. In addition, after we completed our review and a draft of the report, we learned that the DEA used only a small fraction of the terms we had provided to search its database for the information needed for our review. Rather than delay our report further, we decided to proceed with releasing it given the significance of our findings.

We also determined that the DEA initially withheld from us relevant information regarding an open case involving overseas prostitution. During a round of initial interviews, only one interviewee provided us information on this case. We later learned that several interviewees were directly involved in the investigation and adjudication of this matter, and in follow-up interviews they each told us that they were given the impression by the DEA that they were not to talk to the OIG about this case while the case was still open. In order to ensure the thoroughness of our work, the OIG is entitled to receive all information in the agency’s possession regardless of the status of any particular case.

As I have testified on multiple occasions, in order to conduct effective oversight, an Inspector General must have timely and complete access to documents and materials needed for its audits, reviews, and investigations. This review starkly demonstrates the dangers inherent in allowing the Department and its components to decide on their own what documents they will share with the OIG, and even whether the Inspector General Act requires them to provide us with requested information. The delays experienced in this review impeded our work, delayed our ability to discover the significant issues we ultimately identified, wasted Department and OIG resources during the pendency of the dispute, and affected our confidence in the completeness of our review.

This was not an isolated incident. Rather, we have faced repeated instances over the past several years in which our timely access to records has been impeded, and we have highlighted these issues in our reports on very significant matters such as the Boston Marathon Bombing, the Department’s use of the Material Witness Statute, the FBI’s use of National Security Letters, and ATF’s Operation Fast and Furious.

The Congress recognized the significance of this impairment to the OIG’s independence and ability to conduct effect oversight, and included a provision in the Fiscal Year 2015 Appropriations Act — Section 218 — which prohibits the Justice Department from using appropriated funds to deny, prevent, or impede the OIG’s timely access to records, documents, and other materials in the Department’s possession, unless it is in accordance with an express limitation of Section 6(a) of the IG Act. Despite the Congress’s clear statement of intent, the Department and the FBI continue to proceed exactly as they did before Section 218 was adopted – spending appropriated funds to review records to determine if they should be withheld from the OIG. The effect is as if Section 218 was never adopted. The OIG has sent four letters to Congress to report that the FBI has failed to comply with Section 218 by refusing to provide the OIG, for reasons unrelated to any express limitation in Section 6(a) of the IG Act, with timely access to certain records.

We are approaching the one year anniversary of the Deputy Attorney General’s request in May 2014 to the Office of Legal Counsel for an opinion on these matters, yet that opinion remains outstanding and the OIG has been given no timeline for the issuance of the completed opinion. Although the OIG has been told on occasion over the past year that the opinion is a priority for the Department, the length of time that has now passed suggests otherwise. Instead, the status quo continues, with the FBI repeatedly ignoring the mandate of Section 218 and the Department failing to issue an opinion that would resolve the matter. The result is that the OIG continues to be prevented from getting complete and timely access to records in the Department’s possession. The American public deserves and expects an OIG that is able to conduct rigorous oversight of the Department’s activities. Unfortunately, our ability to conduct that oversight is being undercut every day that goes by without a resolution of this dispute.

At some point, Congress is going to have to decide whether it will use the power of the purse — as they have authorized by statute — to force DEA and FBI to meet the same standards of disclosure that mere citizens would be required if DEA and FBI were investigating them.

Until then, we should just assume FBI and DEA are breaking the law.

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Iran’s Description of Incident at Saudi Airport Changes

I’ve been following the recent PR battle between Saudi Arabia and Iran as they square off over Yemen and their other proxy battles across the greater Middle East. Of particular interest has been the accusation by Iran that two Iranian teenage boys were sexually assaulted at an airport as they returned from visiting holy sites in Saudi Arabia. The incident apparently took place in March but took a while to achieve the level of attention it is now commanding. Although Iran now has actually cancelled Umrah trips to Mecca and Medina (these are the lesser trips to the holy sites; Hajj this year will be in September), Iran’s description of the incident has evolved away from certainty that sexual assault took place down to stating that sexual assault was only attempted.

For example, here is the Mehr News announcement of cancellation of Umrah linked above:

In an order to Iran’s Hajj and Pilgrimage Organization, Iranian Minister of Culture and Islamic Guidance Ali Jannati suspended Umrah to Mecca and Medina in Saudi Arabia in protest to sexual assault attempt against two teenage Iranian boys by Jeddah airport security forces.

“I have ordered the Hajj and Pilgrimage Organization to suspend the Umrah pilgrimage until the criminals are sentenced and punished,” Ali Jannati asserted.

The airport security agents harassing two Iranian young Hajj pilgrims are kept in custody, Jannati said, adding that Saudi officials had promised to exert maximum punishment on the perpetrators behind the assault at Jeddah airport.

Contrast that description of “sexual assault attempt” with this language from a PressTV article dated April 8:

Iran has submitted a note of complaint to the Saudi government over sexual abuse of two teenage Iranian pilgrims by Saudi officers at the King Abdulaziz International Airport in Jeddah.

/snip/

While performing body search on passengers, Saudi officers allegedly took the 14- and 15-year-old teenagers away citing suspicion, sounded off the alarm at the gate, and subjected them to the immorality.

Afkham said Saudi authorities had voiced disgust at the abuse and said its culprits would face religious and legal punishment upon establishment of their crime.

On April 8, then, we have frank “sexual abuse”, but only three days later it went down to the point that PressTV said the boys were “sexually harrassed” rather than abused:

Saudi officers sexually harassed two Iranian teenage boys at the King Abdulaziz International Airport in Jeddah two weeks ago, prompting Tehran to submit a note of complaint to the Saudi government, according to Iran’s Foreign Ministry spokeswoman, Marzieh Afkham.

We then go from the April 11 “sexually harrassed” to today’s downgrade to attempted sexual assault. AP’s report on the situation yesterday afternoon noted that just what actually took place is unclear:

The alleged abuse, the details of which have not been publicly disclosed, sparked unauthorized protests at the Saudi Embassy in Tehran on Saturday. Public anger has grown over the incident, with President Hassan Rouhani ordering an investigation and Iran’s Foreign Ministry summoning a Saudi diplomat for an explanation.

But what actually happened remains unclear. On Monday, a representative of Iran’s top leader on hajj affairs downplayed the case, saying the pilgrims weren’t abused, the semi-official Fars news agency reported.

“In the incident, no abuse has happened and the two policemen who attempted abuse were identified and detained by Saudi police,” Ali Ghaziasgar was quoted as saying.

Isn’t it interesting that Iran’s description of the incident didn’t soften until the very day that the “unauthorized” protests took place? Although described as unauthorized, the protests were mentioned by the major Iranian news outlets I scan, so Iran clearly intended to use them to portray Iran as victimized by the Saudis in the incident. But now that the protests have taken place and gotten their attention, we are finding out that no sexual assault likely even took place and the Saudis have placed the two policemen under arrest for attempted assault. It will be very interesting to see what happens at any trial these policemen might face and how each side will portray the outcome.

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Congress Continues to Act Like a Rump Appendage on War

Back when President Obama introduced his version of the AUMF (which didn’t sunset the 2001 AUMF and didn’t include meaningful limits on the ISIL war), I suggested he was leveraging the competing interests of Congress to retain maximal Executive powers.

Those who seek to limit Executive authority would be nuts to pass such an authorization.

Indeed, there are already signs of dissent from Democrats. “[W]e must [pass an authorization] in a way that avoids repeating the missteps of the past, and that does not result in an open-ended authorization that becomes legal justification for future actions against unknown enemies, in unknown places, at unknown times,” Senator Pat Leahy reacted, recalling how the 2001 AUMF had been used to authorized indefinite detention and drone strikes far from the battlefield.

That may be part of the point. Republicans have already objected to the one biggest limit in the AUMF, its promise not to use “enduring” ground troops, which hardliners think are needed. “If we’re going to authorize use of military force, the president should have all the tools necessary to win the fight that we’re in,” John Boehner told the National Journal and other reporters.

Which may mean such a bill will not pass Congress. Even as Republicans are squealing about what they claim is a presidential power grab on immigration, they appear content with this particular power grab — particularly if the President will bear responsibility for any big reverses in this war.

If this AUMF doesn’t pass, President Obama will continue to rely on fairly audacious claims about other sources of war authorization, all the while claiming Congress is responsible for not authorizing what he’s doing. If this AUMF does pass, President Obama may continue relying on a hodgepodge of AUMFs, thereby claiming fairly unlimited boundaries to his war powers.

Heads or tails, we’re likely to still end up with claims to fairly unlimited Presidential authority to wage war.

Ben Wittes, in response to The Hill declaring the AUMF dead, offers similar analysis in retrospect.

We see in this story why Obama was clever to play the AUMF debate the way he did, following the Syria AUMF debacle in 2013. Obama, recall, declared that he didn’t need a new AUMF, waited months to send up a draft, and then sent up a draft that contained authorities duplicative of those he already claimed. This wasn’t principled or good government, in any sense, but the result is that Obama has successfully turned congressional calcification and paralysis to his advantage.

The reason is that because of the way he postured the matter, nothing actually hinges for Obama on congressional passage of a new AUMF; the President, after all, claims the authority to do everything he wants to do against ISIL under current authorities. In fact, as I explained the other day, congressional failure to act arguably constitutes acquiescence to his broad claim of authority under the 2001 AUMF, since few of the members of Congress who are refusing to pass a new authorization are also claiming that the president lacks legal authority to take action. Many Republicans are actually complaining that he is not doing more than he is against ISIL.

Obama, in other words, put himself in a position in which congressional action would strengthen his hands and congressional inaction—always the likeliest outcome these days—would also strengthen his hand, or at least not weaken it.

It was a smart play on the part of White House lawyers.

I’d be hooting “I told you so” if the implications weren’t so dire.

Obama claims these AUMFs authorize not just bombing in Iraq and maybe Syria and who knows why not Libya and while we’re at it everyone’s having fun bombing the shit out of Yemen these days. But they authorize a claim to breathtakingly expansive authority for the President.

Fourteen years later, you might think Congress would start to get jealous of its own authority and begin reclaiming it. And, in fact, Republicans are squawking about limited Executive power grabs elsewhere.

But not on war. Never on war.

Remember when this war began because “They hate us for our freedoms,” which in part included real limits to Executive authority?

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Hollywood Illiberal: The Entertainment Industry’s Misogyny and Society’s Broken Mirror

BrokenHollywoodIn a recent heated discussion I was told, “Hollywood is liberal.” That’s bullshit, I said.

“But the themes they use in their stories—they’re liberal,” they rebutted. Again, bullshit.

The proof is in the numbers. Hollywood is a backward institution, the leadership and ownership of which are overwhelmingly white and male.

Entertainment looks as bad if not worse than most other industries in the U.S., when diversity measurements are compared. The entertainment industry in no way resembles the public to which it sells its wares, whether in front or behind the camera.

For women, a majority of the population at 51%, the numbers are grim:

  • Males outnumber females 3 to 1 in family films. In contrast, females comprise just over 50% of the population in the United States. Even more staggering is the fact that this ratio, as seen in family films, is the same as it was in 1946.
  • Females are almost four times as likely as males to be shown in sexy attire. Further, females are nearly twice as likely as males to be shown with a diminutive waistline. Generally unrealistic figures are more likely to be seen on females than males.
  • Females are also underrepresented behind the camera. Across 1,565 content creators, only 7% of directors, 13% of writers, and 20% of producers are female. This translates to 4.8 males working behind-the-scenes to every one female.
  • From 2006 to 2009, not one female character was depicted in G-rated family films in the field of medical science, as a business leader, in law, or politics. In these films, 80.5% of all working characters are male and 19.5% are female, which is a contrast to real world statistics, where women comprise 50% of the workforce.

[Source: Geena Davis Institute on Gender in Media]

Boldface above is mine; the numbers are beyond absurd when it comes to female directors. The Directors’ Guild of America has a folder (binder, if you’d rather) with the names of 1200 female directors. The Director’s List has collected the names of 1800 female directors, even larger than the DGA’s binder full of women.

But the number of women contracted by the major studios to make films is in the single digits?

That’s far from liberal by any stretch of the imagination.

The lack of women behind the camera distorts what the public sees before it:

  • Only 15% of all clearly identifiable protagonists were female (up 4 percentage points from 2011, down one percentage point from 2002), 71% are male, and 14% are male/female ensembles (see Figure 1).
  • Females comprised 29% of major characters, down 4 percentage points from 2011, but up 2 percentage points from 2002.
  • Females accounted for 30% of all speaking characters (includes major and minor characters) in 2013, down 3 percentage points from 2011, but up 2 percentage points from 2002.

[Source: It’s a Man’s (Celluloid) World: On-Screen Representations of Female Characters in the Top 100 Films of 2013, Martha M. Lauzen, PhD, Center of the Study of women in Television and Film, San Diego State University (White paper, PDF)]

Nor does it appear to matter whether film or television, when looking at the composition of directors. White men hold nearly identical percentages of directors’ slots in either media.— roughly 70%.

What does a crowd with realistic, or even equitable representation of women look like? We can’t rely on Hollywood to show us, based on this data. Our societal mirror is broken, at the expense of our mothers, daughters, sisters, ourselves. Continue reading

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DEA’s Dragnet and David Headley

In a piece on the DEA dragnet the other day, Julian Sanchez made an important point. The existence of the DEA dragnet — and FBI’s use of it in previous terrorist attacks — destroys what little validity was left of the claim that NSA needed the Section 215 dragnet after 9/11 to close a so-called “gap” they had between a safe house phone in Yemen and plotters in the US (though an international EO 12333 database would have already proven that wrong).

First, the program’s defenders often suggest that had we only had some kind of bulk telephone database, the perpetrators of the 9/11 attacks could have been identified via their calls to a known safehouse in Yemen.  Now, of course, we know that there was such a database—and indeed, a database that had already been employed in other counterterror investigations, including the 1995 Oklahoma City bombing. It does not appear to have helped.

But the DEA dragnet is even more damning for another set of claims, and for another terrorist attack such dragnets failed to prevent: former DEA informant David Headley, one of the key planners of the 2008 Mumbai attack.

Headley provided DEA the phone data they would have needed to track him via their dragnet

As ProPublica extensively reported in 2013, Headley first got involved in Lashkar-e-Taiba while he remained on the DEA’s payroll, at a time when he was targeting Pakistani traffickers. Indeed, after 9/11, his DEA handler called him for information on al Qaeda. All this time, Headley was working phone based sources.

Headley returned to New York and resumed work for the DEA in early 2000. That April, he went undercover in an operation against Pakistani traffickers that resulted in the seizure of a kilo of heroin, according to the senior DEA official.

At the same time, Headley immersed himself in the ideology of Lashkar-i-Taiba. He took trips to Pakistan without permission of the U.S. authorities. And in the winter of 2000, he met Hafiz Saeed, the spiritual leader of Lashkar.

Saeed had built his group into a proxy army of the Pakistani security forces, which cultivated militant groups in the struggle against India. Lashkar was an ally of al Qaeda, but it was not illegal in Pakistan or the United States at the time.

[snip]

Headley later testified that he told his DEA handler about his views about the disputed territory of Kashmir, Lashkar’s main battleground. But the senior DEA official insisted that agents did not know about his travel to Pakistan or notice his radicalization.

On Sept. 6, 2001, Headley signed up to work another year as a DEA informant, according to the senior DEA official.

On Sept. 12, Headley’s DEA handler called him.

Agents were canvassing sources for information on the al Qaeda attacks of the day before. Headley angrily said he was an American and would have told the agent if he knew anything, according to the senior DEA official.

Headley began collecting counterterror intelligence, according to his testimony and the senior DEA official. He worked sources in Pakistan by phone, getting numbers for drug traffickers and Islamic extremists, according to his testimony and U.S. officials.

Even at this early stage, the FBI had a warning about Headley, via his then girlfriend who warned a bartender Headley had cheered the 9/11 attack; the bartender passed on the tip. And Headley was providing the DEA — which already had a dragnet in place — phone data on his contacts, including Islamic extremists, in Pakistan.

ProPublica’s sources provide good reason to believe DEA, possibly with the FBI, sent Headley to Pakistan even after that tip, and remained an informant until at least 2005.

So the DEA (or whatever agency had sent him) not only should have been able to track Headley and those he was talking to using their dragnet, but they were using him to get phone contacts they could track (and my understanding is that agreeing to be an informant amounts to consent to have your calls monitored, though see this post on the possible “defeat” of informant identifiers).

Did Headley’s knowledge of DEA’s phone tracking help the Mumbai plotters avoid detection?

Maybe. And/or maybe Headley taught his co-conspirators how to avoid detection.

Of course, Headley could have just protected some of the most interesting phone contacts of his associates (but again, DEA should have tracked who he was talking to if they were using him to collect telephony intelligence).

More importantly, he may have alerted Laskar-e-Taiba to phone-based surveillance.

In a December joint article with the NYT, ProPublica provided details on how one of Headley’s co-conspirators, Zarrar Shah, set up a New Jersey-based VOIP service so it would appear that their calls were originating in New Jersey.

Not long after the British gained access to his communications, Mr. Shah contacted a New Jersey company, posing online as an Indian reseller of telephone services named Kharak Singh, purporting to be based in Mumbai. His Indian persona started haggling over the price of a voice-over-Internet phone service — also known as VoIP — that had been chosen because it would make calls between Pakistan and the terrorists in Mumbai appear as if they were originating in Austria and New Jersey.

“its not first time in my life i am perchasing in this VOIP business,” Mr. Shah wrote in shaky English, to an official with the New Jersey-based company when he thought the asking price was too high, the GCHQ documents show. “i am using these services from 2 years.”

Mr. Shah had begun researching the VoIP systems, online security, and ways to hide his communications as early as mid-September, according to the documents.

[snip]

Eventually Mr. Shah did set up the VoIP service through the New Jersey company, ensuring that many of his calls to the terrorists would bear the area code 201, concealing their actual origin.

We have reason to believe that VOIP is one of the gaps in all domestic-international dragnets that agencies are just now beginning to close. And by proxying through the US, those calls would have been treated as US person calls (though given the clear foreign intelligence purpose, they would have met any retention guidelines, though may have been partly blocked in CIA’s dragnet). While there’s no reason to believe that Headley knew that, he likely knew what kind of phone records his handlers had been most interested in.

But it shouldn’t have mattered. As the article makes clear, GCHQ not only collected the VOIP communications, but Shah’s communications as he set them up.

Did FBI claim it tracked Headley using the NSA dragnet when it had actually used the DEA one?

I’ve been arguing for years that if dragnet champions want to claim they work, they need to explain why they point to Headley as a success story because they prevented his planned attack on a Danish newspaper, when they failed to prevent the even more complex Mumbai attack. Nevertheless, they did claim it — or at least strongly suggest it — as a success, as in FBI Acting Assistant Director Robert Holley’s sworn declaration in Klayman v. Obama.

In October 2009, David Coleman Headley, a Chicago businessman and dual U.S. and Pakistani citizen, was arrested by the FBI as he tried to depart from Chicago O’Hare airport on a trip to Pakistan. At the time of his arrest, Headley and his colleagues, at the behest of al-Qa’ida, were plotting to attack the Danish newspaper that published cartoons depicting the Prophet Mohammed. Headley was later charged with support for terrorism based on his involvement in the planning and reconnaissance for the 2008 hotel attack in Mumbai. Collection against foreign terrorists and telephony metadata analysis were utilized in tandem with FBI law enforcement authorities to establish Headley’s foreign ties and put them in context with his U.S. based planning efforts.

That said, note how Holley doesn’t specifically invoke Section 215 (or, for that matter, Section 702, which the FBI had earlier claimed they used against Headley)?

Now compare that to what the Privacy and Civil Liberties Oversight Board said about the use of Section 215 against Headley.

In October 2009, Chicago resident David Coleman Headley was arrested and charged for his role in plotting to attack the Danish newspaper that published inflammatory cartoons of the Prophet Mohammed. He was later charged with helping orchestrate the 2008 Mumbai hotel attack, in collaboration with the Pakistan-based militant group Lashkar-e-Taiba. He pled guilty and began cooperating with authorities.

Headley, who had previously served as an informant for the Drug Enforcement Agency, was identified by law enforcement as involved in terrorism through means that did not involve Section 215. Further investigation, also not involving Section 215, provided insight into the activities of his overseas associates. In addition, Section 215 records were queried by the NSA, which passed on telephone numbers to the FBI as leads. Those numbers, however, only corroborated data about telephone calls that the FBI obtained independently through other authorities.

Thus, we are aware of no indication that bulk collection of telephone records through Section 215 made any significant contribution to the David Coleman Headley investigation.

First, by invoking Headley’s role as an informant, PCLOB found reason to focus on DEA right before they repeatedly point to other authorities: Headley was IDed by “law enforcement” via means that did not involve 215, his collaborators were identified via means that did not involve 215, and when they finally did query 215, they only “corroborated data about telephone calls that the FBI had obtained independently through other authorities.”

While PCLOB doesn’t say any of these other authorities are DEA’s dragnet, all of them could be (though some of them could also be NSA’s EO 12333 dragnet, or whatever dragnet CIA runs, or GCHQ collection, or Section 702, or — some of them — FBI NSL-based collection, or tips). What does seem even more clear now than when PCLOB released this is that NSA was trying to claim credit for someone else’s dragnet, so much so that even the FBI itself was hedging claims when making sworn declarations.

Of course, whatever dragnet it was that identified Headley’s role in Laskar-e-Taiba, even the DEA’s own dragnet failed to identify him in the planning stage for the larger of the attacks.

If the DEA’s own dragnet can’t find its own informant plotting with people he’s identified in intelligence reports, how successful is any dragnet going to be?

 

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The Other Possible Whys behind the Boston Marathon Attack

As the Dzhokhar Tsarnaev trial pauses for the Marathon and the attack anniversary (and, ostensibly, to give the defense time to line up their witnesses), some competing sides have aired their views about the story not being told at the trial.

An odd piece from BoGlo’s Kevin Cullen quotes a cop asking why the FBI Agents who interviewed Tamerlan Tsarnaev in 2011 did not recognize him from surveillance videos.

“Who were the FBI agents who interviewed Tamerlan Tsarnaev after the Russians raised questions about him two years before the bombings, and why didn’t they recognize Tamerlan from the photos the FBI released?” he asked.

That’s actually a great question. But then Cullen goes onto make some assertions that — if true — should themselves elicit questions, questions he doesn’t ask. He marvels at the video analysis after the event, but doesn’t mention that the FBI claims the facial recognition software it has spent decades developing didn’t work to identify the brothers. He lauds the FBI for finding Dzhokhar’s backpack in a dumpster, but far overstates the value of the evidence found inside (remember, among other things found on a thumb drive in it was a rental application for Tamerlan’s wife). Cullen also overstates the FBI’s evidence that the bombs were made in Tamerlan’s Cambridge apartment, and so sees that as a question about why Tamerlan’s wife, Katherine, wasn’t charged (forgetting, I guess, that she was routinely gone from the apartment 70 hours a week), rather than a question about all the holes in FBI’s pressure cooker story: Why did Tamerlan pay cash for pressure cookers — as FBI suggests he did — all while carrying a mobile GPS device that he brought with him when trying to make his escape? Where did the other two pressure cookers (the third pressure cooker used as a bomb, and the one found at the apartment) come from?

Masha Gessen — who just wrote a book about the case that I have not yet read — asks some of the same questions in a NYT op-ed in a piece that also highlights the government’s flawed claims about radicalization at the core of this case.

Even worse, two critical questions have not been answered. Where were the bombs built? Investigators have testified that they were not built at the older brother’s apartment or in the younger brother’s dorm room. Were they built in someone else’s apartment, house or garage? If so, who, and was he a knowing accomplice? Did he help in any other way?

The other big question is: Why did the F.B.I. fail to identify Tamerlan Tsarnaev, the older brother, who had been fingered as a potential terrorist risk two years before the bombing and interviewed by field agents? Within 24 hours of the bombing, on April 15, 2013, investigators focused on images of the brothers in surveillance tapes recovered from the scene. Yet they had no names — and more than two days later they released the photos to the public, asking for help with identifying the suspects. How is it possible that someone who had been interviewed by a member of the local Joint Terrorism Task Force could not be identified from the pictures?

Note, I think Gessen overstates how strongly the government has said the bombs weren’t made at the Cambridge apartment, but it is consistent with the evidence presented that they weren’t.

Compare these decent questions with Janet Napolitano’s take — not so much on the trial, but on Gessen’s book.

Before I get into the key graph of her review, consider Napolitano’s role here. Her agency — especially Customs and Border Patrol — came in for some criticism in the Joint IG Report on the attack, because they may not have alerted the FBI to Tamerlan Tsarnaev’s travel to and from Russia in 2012, because they treated Tamerlan as a low priority and therefore didn’t question him on his border crossings (the trial record may indicate Tamerlan had Inspire on his computer when he traveled to Russia), and because the CBP record on Tamerlan went into a less visible status while he was out of the country, meaning he evaded secondary inspection on the way back into the country as well. Yet she mentions none of those crucial details about DHS’s role in missing Tamerlan’s travel and increasing extremism in her review.

Rather, she describes her agency as a valiant part of the combined effort to hunt down the attackers.

As secretary of homeland security, I immediately mobilized the department to assist Boston emergency responders and to work with the F.B.I. to identify the perpetrators. Because the Boston Marathon is an iconic American event, we suspected terrorism, but no group stepped forward to claim credit. Massive law enforcement resources — local, state and federal — had to be organized and deployed so that, within just a few days, we had narrowed the inquiry from the thousands of spectators who had come to cheer on the runners to two, who had come to plant bombs.

Only much later in her review does Napolitano makes a defense of the government failure to prevent this attack, though once again she makes no mention of her own agency’s role in failing to stop the attack. As Napolitano tells it, this is about the FBI and it’s just “armchair quaterbacking.”

In the course of armchair quarterbacking that followed the bombing, it was revealed that the Russian Federal Security Service, known as the F.S.B., had notified the F.B.I. in 2011 about Tamerlan’s presence in the United States. Although criticized for inadequate follow-up, the F.B.I. actually interviewed Tamerlan and other household members at least three times in 2011. Further requests to the F.S.B. for details went unanswered. Other than putting Tamerlan under 24-hour surveillance, it is difficult to ascertain what more the F.B.I. could have done — according to Gessen, Russia routinely presumes all young urban Muslim men to be radical.

Much of the rest of Napolitano’s review focuses on the government’s theory of radicalization and the Tsarnaev family’s collective failure to achieve the American Dream (which, I guess, is what Gessen was debunking in her op-ed the next day), returning the story insistently to one about radicalization. Except then, having emphasized how many times the FBI had contact with Tamerlan in 2011, she scoffs at the questions that might raise and Gessen’s reliance on evidence the government itself has introduced into the public record.

In the final chapters, however, the book becomes curiouser and curiouser; Gessen seems to become a conspiracy theorist. She postulates that the F.B.I. recruited Tamerlan as an informant during their visits to the Tsarnaev home in 2011. She then surmises that Tamerlan went rogue and participated in the killing of three friends with whom he dealt marijuana. She goes further, and suggests that after the bombings, the F.B.I. delayed telling Boston law enforcement about Tamerlan’s identity because they wanted to reach him first, kill him and hide his presence as an informant. Gessen likens this alleged behavior to the F.B.I.’s use of sting operations, and she implies that the bureau has been entrapping defendants as opposed to finding real terrorists. And, finally, relying on the words of “several” unnamed explosives experts, she asserts that the Tsarnaevs must have had help constructing the bombs, despite the presence of explicit instructions on the Internet and in Inspire, a jihadist magazine.

How is Gessen a conspiracy theorist because she “surmises that Tamerlan … participated” in the 2011 Waltham killings? That claim came from the FBI itself! The FBI says Ibragim Todashev was confessing to that fact when they killed him. And how is suggesting the bombs used at the Marathon (as distinct from those thrown in Watertown) could not have come directly from Inspire be a conspiracy theory when that is the testimony the defense elicited from FBI’s own bomb expert on cross examination?

Effectively, Janet Napolitano, whose agency rightly or wrongly received some of the criticism for failing to prevent this attack, completely ignores the questions about prevention and then dismisses questions that arise out of the government’s failure to prevent the attack as a conspiracy theory.

Napolitano’s choice to write (and NYT’s choice to publish) a critical review of a book pointing out problems with the narrative of the attack she herself has been pitching actually got me thinking: Imagine Robert Mueller writing such a review? Had he done so, the inappropriateness of it, the absurdity of deeming claims made by the FBI a conspiracy theory, and his own agency’s role in failing to prevent the attack would have been heightened. Not to mention, he likely would have had a hard time dismissing the real questions about the provenance of the bombs, given that his former agency claims not to know the answers to them. And that made me realize that having Napolitano write this review worked similarly to the way the prosecution’s parade of witnesses who hadn’t done the primary analysis on the evidence in the case did. It gave official voice to the chosen narrative, without ever exposing those who might be able to answer the still outstanding questions to question.

For what it’s worth, I have a few more questions about the attack that — like Cullen and Gessen — I regret will likely go unanswered. Or rather, perhaps another theory about the government’s implausible claim not to have IDed the brothers until they got DNA from Tamerlan on April 19th.

As I mentioned, no one wants to talk about why facial recognition didn’t work which — if true — ought to have led to congressional hearings and the defunding of the technology. The FBI wants you to believe that they couldn’t ID a guy they had had in a terrorist watchlist and extended immigration records on and Congress wants you to believe that would be acceptable performance for an expensive surveillance system.

I’ve also tracked the government’s odd use of GPS data in the trial. They used cell tower information based off the brothers’ known handsets (which they only got in smashed condition days later) to track their movement at the race. They used a series of GPS devices to track the purchases of the materials used in the attack and to track the brothers in the stolen Mercedes (though their claims about how they tracked the Mercedes still don’t add up). There’s something missing from this story, and I increasingly wonder whether it’s the use of a Stingray or similar device, which we know even local authorities use in the case of public events like protests or sporting events, which might have been able to pinpoint calls made between phones using the same “cell” at the race, and with it, pinpoint the phones we know were registered under the brothers’ real names.

So here’s my conspiracy theory, Janet Napolitano: Not only do I think claims Tamerlan was an informant ought to be at least assessed seriously (though I also think the Russians clearly are not telling us what they believed him to be, either), which might be one explanation for FBI’s dubious claims not to have IDed the brothers for over 3 days. But I also think the government pursued this case with an eye towards what intelligence they were willing to admit at trial — and we know they refuse to admit how sophisticated their use of Stingrays is, and we should assume they refuse to admit how well facial recognition technology works, either.

That is, in addition to the other real questions and possible explanations for the delay, I think it possible that the FBI had to create a manhunt so as to hide the tools that IDed the brothers far earlier than they let on.

Update: I meant to add that I think the timing of the recent Stingray releases to be curious. Basically, the dam holding back disclosures of the FBI’s secrecy on Stingrays burst on Wednesday, April 8, as the ACLU, Baltimore, and two other jurisdictions got Non-Disclosure Agreements on the same day, after the Tsarnaev case had gone to the jury. That’s as conveniently timed, it seems, as the April 3 release of the After Action report, which Massachusetts had held since December. Also remember that the government doesn’t have to disclose PRTT data to defendants unless it uses that evidence at trial (and has suggested it has PRTT data on other terrorist defendants that it doesn’t have to turn over). So if they did use a Stingray to ID the brothers at all, they would claim they didn’t have to disclose it, but wouldn’t want to make the capability too obvious until after the defense lost any opportunity to make a constitutional claim.

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Neoliberal Markets Deliver for the Rich

This is a cross-post with some modifications from Naked Capitalism.

It is a truth universally acknowledged by all good citizens that markets are the only way to organize a society. The implication is that the role of government is to support and protect the operations of markets, and little else. I’ve been looking at this in a series of posts here; you can find them on my author page. It turns out that the claims about markets reach back to neoclassical analysis by William Stanley Jevons, and mirrored by other neoclassical writers. In his book The Theory of Political Economy, available online here, Jevons claims to prove that markets maximize utility for all participants. Economists generally, and especially neoliberal economists, take that proof at face value and have exalted it into a principle for the organization of society. The proof doesn’t stand up to close examination.

Jevons restricts his efforts to what we would identify as a perfectly competitive market. He defines utility using the definition of Jeremy Bentham:

”By utility is meant that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness (all this, in the present case, comes to the same thing), or (what comes again to the same thing) to prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered.”

This perfectly expresses the meaning of the word in Economics, provided that the will or inclination of the person immediately concerned is taken as the sole criterion, for the time, of what is or is not useful. III. 2,3, my emphasis.

He uses these definitions to prove that in a perfect market with no constraints people will trade in commodities until any further trades would reduce their personal total utility. That is all there is to the proof for the superiority of markets.

Now whatever the case may have been in the second half of the 19th Century when Jevons wrote, it’s ludicrous to suggest that all markets are competitive. It’s doubtful that many markets for specific goods and services would meet Jevons’ definition.

I examine the definition of utility in this post, following Philip Mirowski. It turns out that the math produces nonsense results. This is known to economists, but ignored. Samuelson and Nordhaus in their basic economics textbook, Economics (2005 ed.) just tell their readers that utility is a “scientific construct”, not something subject to measurement or observation. They don’t seem to see the oddity of using a term in general use for a completely different purpose. They seem equally indifferent to the oddity of the basic assumption that each of us would know what would improve our total utility if we had an infinitesimal increase of money. Despite the best efforts of decades of economists, the proof for the theory of the superiority of markets hasn’t been improved.

Jevons thought that the only valid proofs were mathematical, but there are other ways to derive correct answers. For example, there is little math in Keynes’ General Theory, and it has held up quite well, better than the infallibility of markets. Perhaps there is something behind Jevons’ argument that would support his claim that markets are superior to other ways of allocating resources.

In this post I look at several definitions of markets. The thing that leaps out is that they are all based on point transactions: each takes place at a specific time and place, and has nothing in common with the next transaction at the same place, or at some other place or at some other instant. If two people are buying something at the same time in different places, there is no connection. The information in any specific transaction only involves the parties to the transaction. Their motives, the benefits they seek, and the satisfactions or lack of satisfactions, are known only to them. Nothing about the last transaction tells anyone or anything about the future.

And Jevons doesn’t claim anything to the contrary. Here’s how he describes his result:

But so far as is consistent with the inequality of wealth in every community, all commodities are distributed by exchange so as to produce the maximum of benefit. Every person whose wish for a certain thing exceeds his wish for other things, acquires what he wants provided he can make a sufficient sacrifice in other respects. IV.98

Jevons concludes that markets facilitate the distribution of commodities (which he defines to include services) from moment to moment. He makes no claims about the future. And he specifically acknowledges that the answers he gets from his markets will give benefit the richest most, and the poorer you are, the worse your outcome. In Jevons’ conception, money rules, and the rich get what they want. None of the other definitions offers any other outcome.

There is always someone with a system for beating the stock market. Some are technical analysts, who talk of resistance levels, support levels and such; here’s an interesting example discussing oil prices. But there isn’t any reason to think this is more than throwing darts. So, believe if you want to. The plain fact is that no analysis predicts the future, and neither do markets.

The proponents of market theory tell us that out of this disconnected series of point transactions, we get the perfect allocation of resources for any situation. Problems with air pollution? Drought? Peak oil? Health care? Answer: Markets.

How is that supposed to happen? Even for Jevons markets are the wrong answer. He would agree that the rich get clean air, water, oil and health care, and the rest of us don’t. Let’s put this to the test. California is experiencing a horrible drought. In response, business interests are busy sucking up the ground water and using it for agriculture and for fracking. If nothing changes we can expect an Easter Island outcome, and it won’t matter which is the main cause, as Gaius Publius explains at Digby. Do you really want decisions about the future of California made by markets in water, as this guy at Forbes wants from his home in Portugal or his armchair theorists in the comment section?

We already have a method for organizing ourselves other than the market. It’s called government. The theory was was that the majority of voters would run government, but the “marketplace of ideas” has been overwhelmed by huge piles of money devoted to obfuscation and lies and clutter that makes it impossible to think rationally, and power is controlled by the people we want government to control. But when it comes to planning for a future, government is the only way non-rich people can play a part in deciding whether or how to prevent the disasters staring us in the face, including water vultures.

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Is Stingray Unique or Does All National Security Information Sharing Involve Such Silencing?

In the last few days, there have been two developments on Stingray transparency. First, the Erie County Sheriff’s office complied with a NYCLU FOIA for Stingray documents. So they released documents showing somewhat modest (though still troubling, often unsupported by any legal process) use of their Stingray. Meanwhile, in Maryland, a policy detective testified about some — but not all — details of Baltimore Police Department’s far more extensive use of its unit. (See also AP’s coverage of the hearing.)

Detective Emmanuel Cabreja, a member of the Police Department’s Advanced Technical Team, testified that police own a Hailstorm cell site simulator — the latest version of the stingray — and have used the technology 4,300 times since 2007.

Cabreja said he had used it 600 to 800 times in less than two years as a member of the unit.

[snip]

Cabreja testified Wednesday during a pretrial hearing in the case of Nicholas West, 21, and Myquan Anderson, 17. West and Anderson were charged in October 2013 with armed carjacking, armed robbery, theft and other violations stemming from an attack on a man in Federal Hill.

Cabreja took what he said was a copy of the nondisclosure agreement to court. It was dated July 2011 and bore the signatures of then-Police Commissioner Frederick H. Bealefeld III and then-State’s Attorney Gregg Bernstein.

Defense attorney Joshua Insley asked Cabreja about the agreement.

“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.

“Yes,” Cabreja said.

Cabreja did not comply with a defense subpoena to produce the device in court. He said he was barred from doing so by the nondisclosure agreement.

In both cases, we finally got a copy of the Non-Disclosure Agreement FBI has been forcing localities to sign on Stingray users. Here’s the Erie one (and here’s MuckRock’s analysis of the slow process of liberating these); the non-disclosures appear to be identical, except for the names of the jurisdiction and signers.

Tech people tracking this development are still mystified by the extreme secrecy that has held sway up until now. People have known about Stingrays for years, so why is the FBI working so hard to hide it and why are localities willing to lose convictions to fulfill the NDAs they’ve signed? (See this Chris Soghoian and Stephanie Pell paper on that take.)

As I have said, I think the FBI may be hiding more than just localities’ own use of Stingrays. It may be hiding its own use of Stingrays that may go well beyond what localities do with them (this MN version was the previously most informative version of the NDA for comparison). Indeed, the newly disclosed language in the NDA on deconfliction reveals that users “will coordinate with the FBI in advance of its use of the wireless collection equipment/technology to ensure de-confliction of respective missions.”

Now, in addition to the NDA, Erie also released a list of its use of its Stingray. Of the 47 uses described, it partnered with the FBI 4 times — though all but one of those included Marshal Service involvement in finding a fugitive, with the remaining one involving drugs. So that says FBI will borrow localities’ Stingrays, though nowhere near as often as USMS (which asked for Erie’s help 17 times). The remainder of the requests all helped local law enforcement, ranging from NY State Police, Park police, Buffalo PD, smaller cities, and even colleges. That is, effectively Erie served as the (or a) local service for other law enforcement agencies.

But there was nothing national security related in any of that usage. And while Buffalo is not the terrorist hotspot Dick Cheney made it out to be when he tried to suspect posse comitatus to start policing Lackawanna, there is a Muslim community that FBI is known to have tracked closely.

So while it’s unclear whether FBI’s requirements on deconfliction refer to its own potential need for a local Stingray or whether they have their own Stingrays they don’t want conflicting with Erie’s, FBI does seem to have envisioned the possibility of one agency’s Stingray use stepping on another agency’s.

Note, too, another thing FBI has been hiding — mention of manuals and equipment — may serve to hide the specifications of the equipment held locality, which is tied closely to capabilities (which I think might actually be an acceptable thing to keep secret, as different versions of different Stingrays have different functionalities).

But I’d like to entertain another possibility: that the NDAs we’re seeing show the outlines underlying much of the vastly expanded information and technology sharing that has happened since 9/11.

Consider: FBI is the fulcrum of all the post-9/11 information sharing from the federal government on down to localities (the same kind of quiltwork of localities as rely on the Erie Stingray). And a great deal of that intelligence will be sensitive — perhaps even more so than the Stingrays themselves. And, similarly, when that data derives from FISA or some other intelligence process, FBI is going to be just as adamant that the localities hide the provenance of it, using all the same parallel construction techniques as demanded by the NDA.

The Memoranda of Understanding for Joint Terrorism Task Forces (Massachusetts State Police; Houston Police Department) — through which a lot of that info-sharing happens — include similar features that are in some ways more restrictive, and in some ways less so. Records are possessed by FBI, ensuring they can’t be shared. JTTF gets investigative exclusivity, so it can conduct its own parallel construction if it deems necessary. Members of JTTFs get security clearances, which would impose even stronger obligations to secrecy as the Stingray NDAs, but members are also required not to disclose sensitive information to others. That is, there, the information sharing happens within a structure that ensures (or at least puts the FBI in charge of) much of the same secrecy that would exist on Stingrays, albeit tied to the institution and stricter NDAs of clearances.

FBI’s Section 702 minimization procedures permits the dissemination of FISA-derived information that is evidence of a crime or related to child exploitation, including kiddie porn, to local authorities. It can also disseminate intelligence on potential attacks or sabotage. But it doesn’t precisely explain how that dissemination would occur, beyond that it would comply with similar dissemination within the Federal government.

I may be missing it, but there must be a great deal of information sharing protocols that have similarities to the Stingray NDAs: that give people without clearance that need “sources and methods” information to do their jobs access, but in such a way that FBI retains all the control over the information.

That is, is it possible that it’s not just the Stingray over which the FBI supersedes justice and democratic transparency to its own prerogatives?

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Emptywheel Twitterverse

bmaz @dcbigjohn Awesome pics. Looks like a good time.
13mreplyretweetfavorite
bmaz @xbradtc Baltimore officials have already admitted that the knife he was carrying was legal. No legitimate grounds for arrest. Nor killing.
57mreplyretweetfavorite
bmaz @xbradtc Under Wardlow, a minimal Terry stop probably. The type of conduct that obviously occurred here, not even close.
58mreplyretweetfavorite
bmaz Great news; about time RT @evanchill Canada says will finally issue @MFFahmy11 a passport after an embarrassing delay http://t.co/Sq1Shwd9S8
1hreplyretweetfavorite
bmaz @Popehat @CathyYoung63 "attorney and astute commentator Ken White" Man, you get all the good descriptions.
1hreplyretweetfavorite
bmaz @daneyvilla It seems pretty much that's about it
2hreplyretweetfavorite
bmaz Restrained him on the ground.....for what?? Gray ends up with a severed spine for making eye contact with a cop?
2hreplyretweetfavorite
bmaz How can this be proper basis? http://t.co/tmhnSmgPwt
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bmaz Why did the Baltimore police start chasing Freddie Gray to begin with? What was probable cause for physical arrest?
2hreplyretweetfavorite
bmaz @DanCBarr I had season tix and was at nearly every game that season+playoffs. Incredible energy. You are right, Warriors now do seem like it
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bmaz @DerekGossler @william_pitts Ive been going to+then giving money to my alma mater for 40 years, don't pull that be a solution shit with me
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