Sting: Two New Reports on How the FBI Creates Terrorists

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

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

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

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

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

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

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

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Kerry Castigates Putin For Using US Strategy of Training, Arming Rebels

So far, I have suffered no ill effects from this outdated beer.

So far, I have suffered no ill effects from this outdated beer.

Aside from the fact that the only craft beer served at the National Security Caucus session at Netroots Nation 2014 was an outdated California beer rather than a local Michigan beer, it was a session marked by interesting discussion. I received quite a bit of support during that discussion for noting that the US response to any crisis anywhere, for far too long, has been simply to ask “Which group should we arm?”. Further, I noted, as we had heard in the “Iran: Diplomacy or War?” session, there is reason for optimism among those of us who favor diplomacy over violence in the successful removal and ongoing destruction of Syria’s chemical weapons rather than the missile strikes the US had been planning and in the remaining strong possibility of a diplomatic solution to the Iran nuclear technology issue instead of a war to destroy the technology. I illustrated that point by mentioning the tragic downing of MH17 and how that demonstrated the folly of training and arming rebel groups that often veer into extremist actions that result in atrocities. That point ties to the mad push to arm Syria’s rebels with the shorter range MANPAD antiaircraft missiles even though they are less powerful than the Buk missile that took down MH17. As I noted, will Syrian “moderates” promise us never to take the MANPADS to a site where civilian aircraft are within range, and would there be any reason to believe such a promise?

In executing his Full Ginsburg yesterday, US Secretary of State John Kerry reached new heights of hypocrisy, as he went from Sunday morning talk show to talk show, proclaiming the evils of Russian actions in Ukraine. The evils for which Kerry is castigating Putin are precisely the evils that the US has been unleashing on the world in places like Iraq, Afghanistan, Yemen, Syria and beyond. From today’s New York Times:

 In presenting the most detailed case yet alleging Russia’s involvement in the Ukraine crisis, Secretary of State John Kerry said on Sunday that Russia had funneled large quantities of heavy weapons to Ukrainian separatists and trained them how to operate SA-11 antiaircraft missiles, the type of system that is believed to have been used to shoot down the Malaysian airliner over eastern Ukraine.

“We know for certain that the separatists have a proficiency that they’ve gained by training from Russians as to how to use these sophisticated SA-11 systems,” Mr. Kerry said on the CNN program “State of the Union.”

Just as when CIA Director John Brennan got his panties in a wad over al Qaeda training death squads in Syria after we had trained our own death squads to send there, Kerry is now saying that Russia choosing a group to arm and train is a horrible thing even though he has been instrumental in helping the Obama administration to do the exact same thing in other areas.

And just as the US now faces problems in its upcoming training of Iraqi troops because of the previous failures in training Iraqi troops, there is reason to believe that the atrocity of MH17 may be due in part to failed training by the Russians. From today’s Washington Post:

Meanwhile, in Kiev, the U.S. Embassy said American intelligence analysts had confirmed the authenticity of recorded conversations in which rebel leaders bragged about shooting down what they thought was a Ukrainian military transport plane moments after the Malaysian jetliner was blown apart.

So even though the separatists are good at using the missiles to blow aircraft out of the sky (the Times article notes they have downed “almost a dozen Ukrainian transport planes, reconnaissance aircraft and helicopters”), it would appear that they haven’t quite worked out that whole target verification thing and that this tragedy may not have been an intentional targeting of civilians as much as it is a training failure. But yes, the Russians own a large portion of this tragedy, as the evidence seems strong that they provided the weapon along with instructions on firing it (if not the full lesson on target verification). And their tactics in doing do were taken directly from the US playbook, all the way down to the training being an abject failure.

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Leaving Motown

Bs7J-LDCAAAe9Z2.jpg-largeHi there Wheelhouse denizens,how ya doing? Jim White and I are both in the air right now on our way home from yet another Netroots wild weekend. We were dropped off at the airport by Marcy, who is on the actual road on her way home to Grand Rapids.

A great time was had by all, and, yes, we are all a little worse for the wear. We had a rocking good time. The picture above is from Marcy’s NSA Surveillance panel yesterday afternoon. Normal content and posting should resume tomorrow, thanks for bearing with us. You are all the greatest, see you soon. Until then, rock on and chat amongst yourselves!

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EO 12333 Threatens Our Democracy

Among the many posts I’ve written about Executive Order 12333 — the order that authorizes all non-domestic spying — includes this post, where I noted that proposed changes to NSA’s phone dragnet won’t affect programs authorized by EO 12333.

Obama was speaking only about NSA’s treatment of Section 215 metadata, not the data — which includes a great amount of US person data — collected under Executive Order 12333.

[snip]

Section 215 metadata has different and significantly higher protections than EO 12333 phone metadata because of specific minimization procedures imposed by the FISC (arguably, the program doesn’t even meet the minimization procedure requirements mandated by the law). We’ve seen the implications of that, for example, when the NSA responded to being caught watch-listing 3,000 US persons without extending First Amendment protection not by stopping that tracking, but simply cutting off the watch-list’s ability to draw on Section 215 data.

Basically, the way NSA treats data collected under FISC-overseen programs (including both Section 215 and FISA Amendments Act) is to throw the data in with data collected under EO 12333, but add query screens tied to the more strict FISC-regulations governing production under it.

[snip]

NSA’s spokeswoman will say over and over that “everyday” or “ordinary” Americans don’t have to worry about their favorite software being sucked up by NSA. But to the extent that collection happens under EO 12333, they have relatively little protection.

That’s precisely the point made in an important op-ed by the State Department’s former Internet freedom chief, John Napier Tye, who had access to data from EO 12333 collection.

Bulk data collection that occurs inside the United States contains built-in protections for U.S. persons, defined as U.S. citizens, permanent residents and companies. Such collection must be authorized by statute and is subject to oversight from Congress and the Foreign Intelligence Surveillance Court. The statutes set a high bar for collecting the content of communications by U.S. persons. For example, Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls.

Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders.

[snip]

Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.

Continue reading

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Snowpiercer: Bong Joon-Ho’s Jab at the God of the Machine


(The cats are away at Netroots Nation, leaving the meese to play. — Rayne)

A number of film critics have written that Snowpiercer — director Bong Joon-Ho’s adaptation of the French dystopic graphic novel, Le Transperceneige — is a cinematic allegory of climate change (the new “cli-fi“). Others will call it an allegory of class warfare. The film released in the U.S. on 27 June, reaching only 374 theaters across the country. Thankfully it went to video-on-demand last Friday as it entered its third week in theaters.

The highly limited and unusual method of release belies the film’s stunning appearance, its stellar cast, its punchy delivery. It’s all of these things and more: gritty, raw, gruesome, action-filled and emotion-tugging. Chris Evans was a surprise, offering restrained yet emotionally exposed work as flawed and resistant Curtis — a far cry from his recent stints as Captain America. Tilda Swinton is her funky finest, and Octavia Spencer is a powerful mother tigress. Korean actors Kang-ho Song and Ah-sung Ko fit perfectly, as do John Hurt and Jamie Bell. Effects are purposeful and not excessive, camera work highly effective, the score clings to the action like a skin.

Snowpiercer is believed to have been dissed on distribution because Bong Joon-Ho insisted on his own cut, resisting Harvey Weinstein’s demands that 20 minutes be excised. Given how closely the story reflects Dante’s Inferno, it’s difficult to see how any cuts affecting up to and through any of its gates would allow the movie to work as it does. (Really, Harvey, which of the circles of hell could we do without? Did you consult with Satan?)

But another reason for the short shrift on distribution may be the film’s unacknowledged allegory: the engine of production continues at all costs.

This is not the message of class warfare which Le Transperceneige’s two books more closely spell out. This is the ugly truth of our current global economy and the descent it makes into a catastrophic climate hell ahead.

The creators of the train ensuring your existence insist you stay where you are, even if you perceive yourself to be at the head of the train. You will be punished if you step out of your assigned place in the works. Resistance is terrorism, and must be eliminated to retain the careful balance necessary to assure production’s continuity. You have no privacy, no rights, no value save for your usefulness to the god of the machine.

This film jabs at the global economy’s bloated belly, wherein gross domestic product is worshipped, and energy’s demands obeyed at the expense of free will and a survivable planet. Bong Joon-Ho’s message is far more subtle and important than that of conflict between labor and capital. It’s certainly more unsettling to the domestic distribution system which desires a sure, non-threatening blockbuster to continue their offering of profit to the god of productivity.

Spoiler (look away now, I’ll put this after the jump): Continue reading

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Dick Durbin’s Obscure Transparency Bid

Steven Aftergood notes that the Senate Appropriations Committee has included a reporting requirement on NSA on its “bulk collection” programs.

That’s all well and good, if the language isn’t stripped before final passage. But there are a couple of limits to the language.

First, the reporting requirements on Section 215 only go back to 2009.

For the last 5 years, on an annual basis, the number of records acquired by NSA as part of the bulk telephone metadata program authorized by the Foreign Intelligence Surveillance Court, pursuant to section 215 of the USA PATRIOT Act, and the number of such records that have been reviewed by NSA personnel in response to a query of such records;

Of course, the program changed significantly in 2009; the collection scope may have narrowed at that point. And many of the abuses were ended in that year.

And there are two problems with the requirement to provide a list of all “bulk collection” programs.

A report, unclassified to the greatest extent possible, and with a classified annex if necessary, describing all NSA bulk collection activities, including when such activities began, the cost of such activities, what types of records have been collected in the past, what types of records are currently being collected, and any plans for future bulk collection.

We know the intelligence community only includes programs that use no discriminator as “bulk collection.” So the report would list what the IC considers bulk collection, not what normal human beings do.

In addition, only NSA would have to report its bulk programs. We know, for example, that the FBI has a Pen Register program that presumably involves some bulk. That would not show up in this list.

So, great! Transparency!

But not transparency that will tell us what we need to know.

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Edward Snowden’s Smut

In an interview with the Guardian published yesterday, Edward Snowden claimed that compromising pictures get shared around NSA.

Made a startling claim that a culture exists within the NSA in which, during surveillance, nude photographs picked up of people in “sexually compromising” situations are routinely passed around.

Boing Boing transcribed his comments on it.

The usual whiners are suggesting Snowden is making this up and demanding proof.

They seem to have forgotten the proof we’ve already seen of NSA officially retaining sexually compromising material. Here’s what Bart Gellman described in a follow-up to WaPo’s recent report on the data collected under Section 702.

Among the large majority of people who are not NSA targets, many of the conversations in our sample are exceedingly private. Often they are very far from publishable, without editing.

Him: “How about you [verb, possessive adjective, noun]

Her: “I [verb] if you [another verb].”

Him: “That can be arranged.”

Her: “I really need punishment.”

Another young woman, also not a target, responds to a suitor who proposes to pay a visit.

Her: “don’t think that would b fair on the guy im seeing”

Him: “you can be a bit naughty at times lol”

Her: “Yeah lol”

The conversation proceeds from there.

This is stuff officially retained by NSA. This is stuff they claim has foreign intelligence value. This is sexually compromising. And Gellman says many of the retained communications are like that.

Sure, I get that NSA wants to contact chain on who’s fucking whom, just as they want to chain on who’s calling whom.  But to do that, they’re retaining smut.

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The Other Authority for the Phone Dragnet

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Anglo-American Data Empire

In a piece for Salon today, I note that both in US domestic warrants for Stored Communication and in the law the UK will push through, DRIP, the US and the Brits are asserting they should be able to demand data stored anywhere in the world. Here’s the US part:

The U.S. data grab started back in December, when the Department of Justice applied for a warrant covering an email account Microsoft held in Ireland as part of a drug-trafficking investigation. Microsoft complied with regards to the information it stored in the U.S. (which consisted of subscriber information and address books), but challenged the order for the content of the emails. After Magistrate Judge James Francis sided with the government – arguing, in part, that Mutual Legal Assistance Treaties, under which one country asks another for help on a legal investigation, were too burdensome — Microsoft appealed, arguing the government had conscripted it to conduct an extraterritorial search and seizure on its behalf.

As part of that, Microsoft Vice President Rajesh Jha described how, since Snowden’s disclosures, “Microsoft partners and enterprise customers around the world and across all sectors have raised concerns about the United States Government’s access to customer data stored by Microsoft.” Jha explained these concerns went beyond NSA’s practices. “The notion of United States government access to such data — particularly without notice to the customer — is extremely troubling to our partners and enterprise customers located outside of the United States.” Some of those customers even raised Magistrate Francis’ decision specifically.

[snip]

The government’s response, however, argued U.S. legal process is all that is required. DOJ’s brief scoffed at Microsoft for raising the real business concerns that such big-footing would have on the U.S. industry. “The fact remains that there exists probable cause to believe that evidence of a violation of U.S. criminal law, affecting U.S. residents and implicating U.S. interests, is present in records under Microsoft’s control,” the government laid out. It then suggested U.S. protection for Microsoft’s intellectual property is the tradeoff Microsoft makes for complying with legal process. “Microsoft is a U.S.-based company, enjoying all the rights and privileges of doing business in this country, including in particular the protection of U.S. intellectual property laws.” It ends with the kind of scolding usually reserved for children. “Microsoft should not be heard to complain that doing so might harm its bottom line. ”

Click through to find out why the UK data grab is even worse.

Effectively, both English speaking behemoths are arguing that borders don’t matter, they can have any data in the world. And while we know NSA and GCHQ were doing that for spying purposes, here they’re arguing they can do it for crime prevention.

Breathtaking claims, really.

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Chihuly In The Desert

Screen Shot 2014-07-16 at 9.03.26 AMLast January, I went to a late afternoon through night wedding at the Desert Botanical Garden here in Phoenix. The first couple of hours there were normal visitors in the park, the rest of the time, especially later at night, we had the place pretty much to ourselves. It was spectacular.

The scene was especially notable because it was in the middle of the stay of a Chihuly exhibit at the Garden. If you are not familiar with Dale Chihuly’s artistic glass designs, it is really something to behold. Read about Chihuly and his work at the link, it is an interesting story.

At any rate, I was chatting with Professor Nancy Leong the other day after she tweeted a picture from a Denver display of Chihuly. I actually think it may be the same installation that had previously been here. Nancy asked me to blog some of my pictures, especially the nighttime ones, which are very cool.

Marcy and I are both enroute to Netroots in Detroit, with Jim White, Masaccio and Gaius Publius all slightly behind us, but also well on their way. Use this as a general discussion trash talk thread, and we will all be checking in, but it may be a little sporadic for the next few days.

All photos will enlarge if you click on them, and a few of them are really worth doing it.

So, without further adieu, Chihuly in the desert:

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Emptywheel Twitterverse

bmaz John Cusack caught Terror Tunnelling to China
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bmaz I am just catching up, but did @erinscafe try to draw a bubble bath in Pauley Pavilion?? http://t.co/Ngh2GFdlwh
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bmaz @robertcaruso Well fireworks are excellent from a date; explosives maybe not so much.
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bmaz @robertcaruso Rob, sailors don't date sailors, you need a Marine.
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bmaz Frankly I am SHOCKED @emptywheel has not been agitating about the awesome Diana Taurasi, Brittney Griner and Phoenix Mercury. #SlackinSister
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bmaz Y'all go read latest Border story from @DcBigJohn "Border Patrol Agent Charged In $60,000 Money-Laundering Scheme" http://t.co/AZUki3asSj
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JimWhiteGNV RT @onekade: Dude should be facing war crimes charges and yet there he goes, blabbing his ugly face off on tv, rewriting history http://t.c…
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JimWhiteGNV RT @teddysanfran: @onekade Hey Betrayus? Who trained that Iraqi army that shed its uniforms and ran away? Wasn't that YOU?
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JimWhiteGNV Vin Scully is a national treasure. Dodger fans are so lucky to get him again next year.
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emptywheel LOL: Bush schooling Maliki the art of politics. Obama lost Iraq, you know.
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emptywheel As you watch this Frontline piece, remember Dick Cheney still had his own heart back then. With a pulse and everything.
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emptywheel RT @sarahjeong: will parody your favorite new york times columnist for a burrito
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