Monday: Gotta’ Catch ‘Em All

[NB: Embedded video contains adult language NSFW]

I had a very disturbing conversation with some 18-to-20-somethings this weekend about privacy and networked communications. I can’t decide if I’m pissed off or terrified that these particular youngsters believed:

  • Most young people their age don’t care if their privacy has been compromised;
  • If they care at all, they believe it’s not a big deal, there’s little danger because they can just shut off the GPS/location and voice features on their phones;
  • This is the way it is with technology and there’s no way to change the status quo.

I know for certain not all youngsters in this age group feel this way, but what set this particular group apart is their privilege. They are going to school in business and education at some of the best schools in the country. Their educations are paid for in full and they know they have jobs waiting for them. Their political heritage is conservative — anti-tax, pro-business, with a Christian fundamentalist spin. They are the next generation of elected officials because they can afford to run for office.

They are what a well-to-do public school district created, and what will come out of a top ten business school: people who don’t give a shit about anybody else’s needs for privacy, because they simply don’t see any risks to their way of life.

The entire conversation began because they were questioning my opsec habit of covering my cellphone camera lenses. When I pushed back about their habit of waving their phones around without any respect for others’ privacy, the topic rapidly went south. It didn’t matter, nobody was following them, they didn’t need to worry; whoever wanted to track them already had all their information anyhow. And still not a lick of concern about anybody else’s privacy, safety and security, free speech, freedom from unwarranted seizure…

And now comes Pokémon Go, the augmented reality mobile device game which this particular cohort had yet to play with on their cellphones. I’m sure they’ve since loaded on their phones without a second thought about the gross failure of Pokémon Go’s privacy policy let alone its ridiculously broad request for device permissions.

Stay away from me, kids. Far, far away. Go ahead and give me a hard time again about protecting privacy rights. Treat me like an old lady yelling at you to stay off my lawn, and I’ll find somebody to tell your super-conservative mother what kind of porn you’ve surfed while you claim you’re at the library studying on her dime. I’m sure I can get somebody to do it for the price of a Pokéstop lure and a Clefairy water Pokémon.

Meanwhile, protesters documenting civil rights abuses by hyper-militarized police have risked their freedom and lives doing so. Like the protesters and reporters seen in the short video taken of Baton Rouge Police arresting protesters gathered peacefully on private property yesterday, forcing their way into a private home and pushing around its residents. Or Ramsey Orta, who videoed the chokehold death of Eric Garner, harassed repeatedly by NYPD since then and jailed, or Chris LeDay’s suspicious arrest after he posted video of Alton Sterling’s murder by Baton Rouge police. These citizens and the journalists who covered them are surely concerned about their privacy and the chilling effect on their free speech a lack of privacy protections will cause for them as individuals and as activist groups and news outlets.

And it’s these people those privileged 18-to-20-somethings I spoke with will never consider as they navigate their way through the rest of college and into the business world. It’s no wonder they believe there’s no way to change the status quo; they aren’t taught to think outside the tight confines of their safe little world nor do they face any threats inside their narrow groove.

I grieve for the future.

FIVE DAYS
That’s all that’s left for in-session days on the U.S. House calendar for July. I see nothing in the remaining schedule directly related to the Flint Water Crisis. Only California’s ongoing water shortage will have a hearing. While the House fiddles, Flint area nonprofits continue to raise money to buy bottled water for city residents. The city water system is allegedly safe, but we all know the entire city is riddled with damaged pipe causing one Boil Water Notice so far this summer. Lead pipes continue to service homes. The roughly 8000 children poisoned so far don’t need even a smidgen more lead from those water lines. But All Lives Matter, right?

I hope every journalist covering an incumbent’s House or Senate campaign will ask what the candidate has done while in office to address both Flint’s GOP-inflicted man-made catastrophe and future crises of a similar nature given underfunded EPA mandates for clean drinking water and equally underfunded infrastructure replacement.

Don’t even get me started on Congress’ weak gestures on Zika, especially after the first Zika-related death in the U.S. this past week and ~1133 patients who’ve tested positive for Zika, including ~320 pregnant women. Zero effort to encourage birth control among at-risk population, let alone adequate warning to the public that unprotected sex as well as mosquitoes spread the disease.

Po po no no

  • Suspect fires on Houston police during 7-hour showdown; SWAT team subdues him using gas (KTRK) — Look, ma, no deadly force! Gee, I wonder what the suspect’s race/ethnicity is?
  • Tiny study without peer review based on unreliable data claims whites shot as often as blacks by police (NYT) — Harvard researcher looked at 1,332 shootings by 10 police departments in Florida, Texas, and California across fifteen years to come up with this swagged conclusion. There was so much wrong with this I don’t even know where to begin. Even the lead researcher’s personal experience suggests there’s a problem with the data. The New York Times simply regurgitates this without any push back. After all the video evidence we’ve seen since Ferguson, should we really believe police-supplied data from such a small sample of nearly 18,000 police departments? We really need a mandatory collection of data from all police departments based on standardized methods combined with an audit. There’s more accountability in banking than there is in police use of force — and we all know how that turned out after 2008’s crash.
  • Dallas shooter was ‘changed’ by military service (The Blaze) — Once interested in becoming a police officer, formerly happy extrovert Micah Johnson became withdrawn, disappointed during his military service. Wonder if he suffered from untreated PTSD and depression after leaving the military? Wonder how many law enforcement officers likewise were former military who sublimated their post-service frustrations? Are we doing enough to help former service persons ease back into civilian life?

Enough. I’m already wishing for Tuesday.

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Index to Posts on The Theory of Business Enterprise by Thorstein Veblen

The following is a list of posts on The Theory of Business Enterprise by Thorstein Veblen, published in 1904. I see that I have misnamed the book in several post titles, and mis-numbered them as well. I really must be more careful. I don’t think this inattention to detail affects the substance of any of the posts.

The Theory of Business Enterprise Part 1: Introduction

The Theory of Business Enterprise Part 2: Neoclassical Economists and Veblen

The Theory of Business Enterprise Part 3: Business Principle

The Theory of Business Enterprises Part 3[a]: Capital and Credit

The Theory of Business Enterprises Part 5: A Legal System That Supports Businessmen

The Theory of Business Enterprises Part 6: Government as an Arm of Business

The Theory of Business Enterprises Part 7: Cultural Changes

Principles Of Business Enterprises Part 8: Conclusion

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As Part of Confirmation Process, Loretta Lynch Suggested DOJ Didn’t Have Enough Evidence to Prosecute HSBC

The WSJ has a story reporting what we long pretty much knew: DOJ decided not to prosecute HSBC for helping drug kingpins (this report, like most others and like DOJ’s settlement itself, forgets to mention HSBC also materially supported terrorism) because doing so might create global financial havoc.

U.S. Justice Department officials overruled their prosecutors’ recommendation to pursue criminal charges against  HSBC Holdings PLC over money-laundering failings, according to a House committee report prepared by Republicans that sheds new light on the bank’s 2012 settlement.

The report, which was reviewed by The Wall Street Journal and prepared by the Republican staff of the Financial Services Committee, concluded that former Attorney General Eric Holder overruled the internal recommendation and subsequently misled Congress about the Justice Department’s decision not to prosecute the U.K. bank.

“Rather than lacking adequate evidence to prove HSBC’s criminal conduct, internal Treasury documents show that DOJ leadership declined to pursue [the] recommendation to prosecute HSBC because senior DOJ leaders were concerned that prosecuting the bank ‘could result in a global financial disaster,’ ” the 282-page report stated.

[snip]

Holder later said those comments were misconstrued and that the Justice Department doesn’t believe any institution is too large to face legal punishment. “If we find a bank or a financial institution that has done something wrong, if we can prove it beyond a reasonable doubt, those cases will be brought,” Mr. Holder said at a 2013 House hearing.

The report, which was expected to be released Monday, concluded those comments were misleading because lower-level prosecutors had recommended the department prosecute HSBC, according to Treasury Department emails subpoenaed by the committee.

The report blames Eric Holder for the decision, not Loretta Lynch, who oversaw the case as US Attorney. Indeed, her name doesn’t appear in the WSJ story at all.

But given the claim that line prosecutors believed they had plenty of evidence to charge HSBC, consider how Lynch answered a question about the topic during her confirmation process.

38. As United States Attorney for the Eastern District of New York, you helped secure nearly $2 billion from HSBC over its failure to establish proper procedures to prevent money laundering by drug cartels and terrorists. You were quoted in a DOJ press release saying, “HSBC’s blatant failure to implement proper anti-money laundering controls facilitated the laundering of at least $881 million in drug proceeds through the U.S. financial system.”

You stated that the bank’s “willful flouting of U.S. sanctions laws and regulations resulted in the processing of hundreds of millions of dollars in [Office of Foreign Assets Control]-prohibited transactions.” Still, no criminal penalties have been assessed for any executive who may have been involved.

a. Did you make any decision or recommendation on charging any individual with a crime?

i. If so, please describe any and all decisions or recommendations you made.

ii. Please explain why such decisions or recommendations were made.

b. If you did not make any decision or recommendation on charging any individual with a crime, who made the decision not to prosecute?

RESPONSE: On December 11, 2012, the Department filed an information charging HSBC Bank USA with violations of the Bank Secrecy Act and HSBC Holdings with violating U.S. economic sanctions (the two entities are collectively referred to as “HSBC”). Pursuant to a deferred prosecution agreement (“DPA”), HSBC admitted its wrongdoing, agreed to forfeit $1.256 billion, and agreed to implement significant remedial measures, including, among other things, to follow the highest global anti-money laundering standards in all jurisdictions in which it operates. As the United States District Judge who approved the deferred prosecution found, “the DPA imposes upon HSBC significant, and in some respect extraordinary, measures” and the “decision to approve the DPA is easy, for it accomplishes a great deal.” Although grand jury secrecy rules prevent me from discussing the facts involving any individual or entity against whom we decided not to bring criminal charges, as I do in all cases in which I am involved, I and the dedicated career prosecutors handling the investigation carefully considered whether there was sufficient admissible evidence to prosecute an individual and whether such a prosecution otherwise would have been consistent with the principles of federal prosecution contained in the United States Attorney’s Manual.

I want to reiterate, particularly in the context of recent media reports regarding the release of HSBC files pertaining to its tax clients, that the Deferred Prosecution Agreement reached with HSBC addresses only the charges filed in the criminal violations of the Bank Secrecy Act for failures to maintain an adequate anti-money laundering program and for sanctions violations. The DPA explicitly does not provide any protection against prosecution for conduct beyond what was described in the Statement of Facts. Furthermore, I should note the DPA explicitly mentions that the agreement does not bind the Department’s Tax Division, nor the Fraud Section of the Criminal Division. information, which are limited to violations of the Bank Secrecy Act for failures to maintain an adequate anti-money laundering program and for sanctions violations. The DPA explicitly does not provide any protection against prosecution for conduct beyond what was described in the Statement of Facts. Furthermore, I should note the DPA explicitly mentions that the agreement does not bind the Department’s Tax Division, nor the Fraud Section of the Criminal Division. [my emphasis]

To be fair to Lynch, hers was basically a non-answer. She said she and career prosecutors review the evidence. She implied that there was insufficient admissible evidence to prosecute, but did not say it.

But if the WSJ report is correct (and we should find out soon enough) in fact at least her prosecutors recommended prosecuting.

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TPP and Democratic Self-Delusion

After months of telling Bernie Sanders to drop out, the political chatterers are finally understanding one reason he did not do so: to maintain leverage over things like the party platform. After the platform was finalized yesterday, Bernie declared victory.

Pressed by supporters of U.S. Sen. Bernie Sanders, Democratic Party platform writers meeting this weekend in Orlando, Florida, adopted a progressive agenda that underscores the need for bold action on climate change, addresses criminal justice reform and calls for doubling the federal minimum wage.

“We have made enormous strides,” Sanders said. “Thanks to the millions of people across the country who got involved in the political process – many for the first time – we now have the most progressive platform in the history of the Democratic Party.”

The Platform Committee also adopted an amendment focused on criminal justice reform which calls for an investigation by the Department of Justice to investigate all shootings involving police officers.

The platform that will be submitted at the Democratic National Convention later this month in Philadelphia also would support Congress putting a price on carbon and methane to discourage continued use of fossil fuels that are causing severe climate change. The platform also says lawmakers must consider the impact on the climate in all federal decisions and invest heavily in wind and solar power rather than natural gas.

Delegates allied with Hillary Clinton’s and Sanders’ campaigns also passed amendments to fight for a $15 federal minimum wage tied to inflation, urged passage of progressive immigration reform and called for legalization of marijuana.

There were three issues, however, where Sanders’ delegates lost: opposition to Israeli settlements, a ban on fracking, and opposition to the Trans-Pacific Partnership.

The first two make sense: after all, those policy positions match Hillary’s stated position (though the US is supposed to be opposed to illegal settlements), so rejecting Sanders’ amendments equated to backing the nominee instead. That’s the way it’s supposed to work.

But Hillary, of course, claimed to oppose the TPP during the primary, even if that claim was always sketchy coming as it did as she worked so hard to negotiate the crappy deal as Secretary of State. So the mealy-mouthed language in the platform about protecting workers — akin to the same language in the Colombia Trade Deal that did squat to protect workers — is more notable.

As is the idiotic opinion expressed by this person, described by Robert Reich as an acquaintance from the Clinton White House.

ACQUAINTANCE: “Don’t you think your blog post from last night was a bit harsh?”

ME: “Not at all. The Democratic Party is shooting itself in the foot by not officially opposing the Trans Pacific Partnership.”

[They talk about how the Democrats are supporting this to back the President.]

ME: “But it’s terrible policy. And it’s awful politics. It gives Trump a battering ram. Obama won’t be president in six months. Why risk it?”

ACQ: “They don’t see much of a risk. Most Americans don’t know or care about the TPP.”

ME: “But they know big corporations are running economic policy. They think the whole system is corrupt. Believe me, Trump will use this against Hillary.”

ACQ: “He can’t. She’s inoculated. She’s come out against the TPP.”

ME: “But it’s her delegates who voted not to oppose it in the Democratic platform. Her fingerprints are all over this thing.”

Trump may not have many articulated policy positions, but his stance against TPP has been consistent and (unsurprisingly loud). Reich is right: to the extent that platforms mean anything at all, this will be used by Trump to pitch Democrats as sell-outs to American workers.

And the notion that voters won’t react against TPP is insulting. Sure, they may not know how specifically bad TPP is, but workers do know that NAFTA sucked. And Trump is certainly capable of equating the two.

Whoever this person is, by nature of being a Hillary advisor, he or she is supposed to be a technocratic elite. But this is idiotic, both from a policy and a political perspective.

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Friday (somewhere): Why

More stuff broken and worse than I expected.

Rather an understatement, that. This week has been a massive case of broken.

Other broken things

Wishing us all a better weekend. Be kind to each other and fix something broken.

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The Bomb Robot Drone Killing Precedent

As you’ve no doubt heard, sniper(s) attacked the police protecting a Black Lives Matter protest in Dallas last night, killing 5 cops. Dallas Police have released the name of one perpetrator, who was killed by police: Micah Johnson. Johnson was apparently an Army veteran; he was what experts deemed “tactically professional” based on review of the attack.

The entire attack was a tragic escalation of racial tensions in this country.

In a press conference today, Dallas Police Chief David Brown revealed this about the stand-off with Johnson:

Let me walk through the stand-off that had occurred–or was occurring–at El Centro on the second floor. The college there in downtown Dallas. We cornered one suspect and we tried to negotiate for several hours. Negotiations broke down. We had an exchange of gunfire with the suspect. We saw no other option but to use our bomb robot and place a device on its extension for it to detonate where the suspect was. Other options would have exposed our officers to grave danger. The suspect is deceased as a result of detonating the bomb. The reporting that the suspect killed himself is not accurate. We’ve confirmed that he’s been deceased because of the detonation of the bomb.

This is the first known killing by a weaponized drone as part of policing in the United States.

The use of the bomb robot in this operation raises several tactical questions. It is possible — though unlikely — that the weaponized drone was present for negotiations, which would raise interesting questions about those discussions (three other people are in custody and they are not cooperating; Johnson claimed, apparently falsely, that he operated alone).

I’m more interested in the tactical question of delivering a lethal bomb rather than something that might have demobilized him — perhaps tear gas?– and permitted police to take him alive.

Those questions about the tactical use of this robot will be answered as the police release more details.

There is, of course, the larger question of what kind of precedent this serves. I’ve long been on the record arguing that a targeted killing in the US would look more like the killing of Luqman Abdullah or Fred Hampton. But the use of a wheeled robot changes that possibility.

Remember, the logic of the Anwar al-Awlaki memos depend on two things: law enforcement precedents authorizing the use of force when officers — or innocent bystanders — lives are at risk.

Even in domestic law enforcement operations, the Court has noted that “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Garner, 471 U.S. at II. Thus, “if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of ~erious physical harm, deadly force may be used if necessary to prevent escape and if. where feasible, some warning has been given.” ld. at 11-12.

Given the attacks on other officers and the exchange of gunfire before using the robot, DPD will easily reach the bar of imminent threat (even though they might have been able to use non-lethal means).

The other thing included in the Awlaki memos (though in unredacted form, in Harold Koh’s comments rather than the OLC memos) is language finding that the use of drones don’t make a legal difference in use of force calculations.

Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.

In other words, there’s little reason to believe this use of force will be legally questionable, at all. Which means there’s little question that it might be used a precedent by other police departments. (And let it be noted that Dallas is considered a far better run police department on such issues than other big cities, much less other less professional offices.) And given the way the Executive has already blurred the line between police usage and intelligence usage, we might expect the same to happen in the future.

There may have been other options available here (and note, in the press conference the mayor thanked the FBI, so it’s not clear whether DPD made this decision on their own), but this will be deemed reasonable.

Which doesn’t mean other, unreasonable uses of this precedent aren’t coming down the pike.

Update: Dallas police have now said that they think Johnson was the only shooter. I’m not sure whether that means the other three suspects were not accomplices at all or helped in some way that did not involve shooting.

Still, consider that Johnson’s military experience was as a mason, not any kind of highly skipped soldier. He managed to do a great deal of damage working off his reserve training.

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Jim Comey, Poker Face, and the Scope of the Clinton Investigation(s)

Screen Shot 2016-07-07 at 10.11.04 PMI write this post reluctantly, because I really wish the Hillary investigations would be good and over. But I don’t think they are.

After having watched five and a half hours of the Clinton investigation hearing today, I’ve got new clarity about what the FBI has been doing for the last year. That leads me to believe that this week’s announcement that DOJ will not charge Clinton is simply a pause in the Clinton investigation(s). I believe an investigation will resume shortly (if one is not already ongoing), though that resumed investigation will also end with no charges — for different reasons than this week’s declination.

First, understand how this all came about. After the existence of Hillary’s server became known, State’s IG Steve Linick started an investigation into it, largely focused on whether Hillary (and other Secretaries of State) complied with Federal Records Act obligations. In parallel, as intelligence agencies came to complain about State’s redactions of emails released in FOIA response, the Intelligence Committee Inspector General Charles McCullough intervened in the redaction process and referred Clinton to the FBI regarding whether any classified information had been improperly handed. As reported, State will now resume investigating the classification habits of Hillary and her aides, which will likely lead to several of them losing clearance.

The FBI investigation that ended yesterday only pertained to that referral about classified information. Indeed, over the course of the hearing, Comey revealed that it was narrowly focused, examining the behavior of only Clinton and four or five of her close aides. And it only pertained to that question about mishandling classified information. That’s what the declination was based on: Comey and others’ determination that when Hillary set up her home-brew server, she did not intend to mishandle classified information.

This caused some consternation, early on in the hearing, because Republicans familiar with Clinton aides’ sworn testimony to the committee investigating the email server and Benghazi were confused how Comey could say that Hillary was not cleared to have her own server, but aides had testified to the contrary. But Comey explained it very clearly, and repeatedly. While FBI considered the statements of Clinton aides, they did not review their sworn statements to Congress for truth.

That’s important because the committee was largely asking a different question: whether Clinton used her server to avoid oversight, Federal Record Act requirements, the Benghazi investigation, and FOIA. That’s a question the FBI did not review at all. This all became crystal clear in the last minutes of the Comey testimony.

Chaffetz: Was there any evidence of Hillary Clinton attempting to avoid compliance with the Freedom of Information Act?

Comey: That was not the subject of our criminal investigation so I can’t answer that sitting here.

Chaffetz: It’s a violation of law, is it not?

Comey: Yes, my understanding is there are civil statutes that apply to that. I don’t know of a crimin–

Chaffetz: Let’s put some boundaries on this a little bit — what you didn’t look at. You didn’t look at whether or not there was an intention or reality of non-compliance with the Freedom of Information Act.

Comey: Correct.

Having started down this path, Chaffetz basically confirms what Comey had said a number of times throughout the hearing, that FBI didn’t scrutinize the veracity of testimony to the committee because the committee did not make a perjury referral.

Chaffetz: You did not look at testimony that Hillary Clinton gave in the United States Congress, both the House and the Senate?

Comey: To see whether it was perjurious in some respect?

Chaffetz: Yes.

Comey: No we did not.

[snip]

Comey: Again, I can confirm this but I don’t think we got a referral from Congressional committees, a perjury referral.

Chaffetz: No. It was the Inspector General that initiated this.

Now, let me jump to the punch and predict that OGR will refer at least Hillary’s aides, and maybe Hillary herself, to FBI for lying to Congress. They might even have merit in doing so, as Comey has already said her public claims about being permitted to have her own email (which she repeated to the committee) were not true. Plus, there’s further evidence that Hillary used her own server precisely to maintain control over them (that is, to avoid FOIA).

That said, there are two reasons why Hillary and her aides won’t be prosecuted for lying to Congress: James Clapper and Scott Bloch.

Clapper you all know about. The Director of National Intelligence — unlike Clinton — was not under oath when he spectacularly lied to Ron Wyden. Nor was he referred to DOJ for prosecution. But that recent lie will make FBI hesitate.

DOJ will hesitate even more given the history of Scott Bloch. bmaz has written a slew of posts about this but the short version is that the former Office of Special Counsel lied to this very committee and wiped his hard drive to obscure that fact. He ultimately pled guilty, but when the magistrate handling the case pointed out that the plea carried a minimum one month sentence, Bloch and DOJ went nuts and tried to withdraw his plea. bmaz and a bunch of whistleblowers who had been poorly treated by Bloch went nuts in turn. All to no avail. After DOJ claimed there were secret facts that no one understood, the court agreed to sentence Bloch to just one day in jail.

In other words, to keep one of their own out of jail, DOJ made expansive claims about how unimportant lying to Congress is. Even assuming DOJ would ignore their own recent historical claims about the frivolity of lying to Congress, Hillary’s lawyers could use that precedent to argue that lying to Congress has, effectively, been decriminalized (unilaterally by the Executive Branch!).

So FBI will investigate it. Comey might even refer, this time, for prosecution, because the evidence is actually far stronger that Hillary used her own server to avoid oversight (and that she was less than forthcoming about that to Congress). But that, too, won’t be prosecuted because you basically can’t prosecute lying to Congress after the Bloch case.

Which brings me to the funniest part of this exchange with Chaffetz (which, coming as it did in the last minutes of the hearing, has escaped most notice).

Chaffetz: Did you look at the Clinton Foundation?

Comey: I’m not going to comment on the existence or non-existence of any other investigation.

Chaffetz: Was the Clinton Foundation tied into this investigation?

Comey: I’m not going to answer that.

Understand: Comey had already commented on the existence or non-existence of other investigations, commenting at length on the non-investigation of questions pertaining to FOIA and FRA, even describing how many people (four to five) were subjects of this investigation. Comment on non-existence of investigation, comment on non-existence of investigation, comment on non-existence of investigation.

And for what it’s worth, the Clinton Foundation probably couldn’t have been part of the scope of this, given that this was only focused on four to five people (note, a Clinton Foundation investigation would better explain why FBI gave Brian Pagliano immunity, another topic on which Comey would not comment).

But when asked about the Clinton Foundation, he claimed he couldn’t say. All of a sudden, refusal to comment on existence or non-existence of investigation.

Now, I’m just going to say I don’t think anything will come of that, because I doubt FBI would clear Hillary on one issue but not the related one (plus, given SCOTUS’ ruling in the Bob McDonnell case, it probably became impossible to prosecute any Clinton Foundation violations). But Comey’s answer does make it clear that FBI considers questions about improperly handling classified information, avoiding FOIA and other oversight, lying about avoiding FOIA, and deals made with the Clinton Foundation to be different things.

I think that doesn’t change that Hillary won’t be indicted. But I do think she will continue to be investigated in conjunction with questions about what she did and said to avoid FOIA and other oversight.

Update: This post has been tweaked.

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The CIA Is Preventing Congress from Learning that the Worst Allegations against Hillary Pertain to Drones

You probably heard that Jim Comey testified to the House Oversight Committee for over four hours today. You’ll see far less coverage of the second panel in that hearing, the testimony of Inspector Generals Steve Linick (from State) and Charles McCullough (from the IC).

In addition to OGR Chair Jason Chaffetz suggesting the committee convene a secrecy committee akin to the one Senator Daniel Patrick Moynihan convened back in the 1990s (which would be very exciting), McCullough revealed something rather startling regarding a letter he sent to Congress back in January (this was first reported by Fox). The letter was his official notice to Congress that some of the information in Hillary’s emails was claimed by an agency he didn’t name to be Special Access.

To date, I have received two sworn declarations from one IC element. These declarations cover several dozen emails containing classified information determined by the IC element to be at the CONFIDENTIAL, SECRET, and TOP SECRET/SAP levels. According to the declarant, these documents contain information derived from classified IC element sources. Due to the presence of TOP SECRET/SAP information, I provided these declarations under separate cover to the Intelligence oversight committees and the Senate and House leadership.

By sending the email, McCullough made the SAP information very public, without providing information about whether the claim was very credible.

Shortly after the Fox report, Politico reported that the emails pertained to CIA drone strikes and related fallout in Pakistan.

However, the emails now deemed to contain “top secret, special access program” information are in addition to the messages previously disputed between State and the Director of National Intelligence, according to a spokesperson for McCullough. The official said the intelligence community review group is wrapping up its look into the documents and is putting these documents in the SAP category.

The Central Intelligence Agency is the agency that provided the declarations about the classified programs, another U.S. official familiar with the situation told POLITICO Wednesday.

The official, who spoke on condition of anonymity, said some or all of the emails deemed to implicate “special access programs” related to U.S. drone strikes. Those who sent the emails were not involved in directing or approving the strikes, but responded to the fallout from them, the official said.

The information in the emails “was not obtained through a classified product, but is considered ‘per se’ classified” because it pertains to drones, the official added. The U.S. treats drone operations conducted by the CIA as classified, even though in a 2012 internet chat Presidential Barack Obama acknowledged U.S.-directed drone strikes in Pakistan.

WSJ reported last month that what are presumably the same emails included discussions among State Department officials about upcoming drone strikes.

The vaguely worded messages didn’t mention the “CIA,” “drones” or details about the militant targets, officials said.

The still-secret emails are a key part of the FBI investigation that has long dogged Mrs. Clinton’s campaign, these officials said.

They were written within the often-narrow time frame in which State Department officials had to decide whether or not to object to drone strikes before the CIA pulled the trigger, the officials said.

Law-enforcement and intelligence officials said State Department deliberations about the covert CIA drone program should have been conducted over a more secure government computer system designed to handle classified information.

State Department officials told FBI investigators they communicated via the less-secure system on a few instances, according to congressional and law-enforcement officials. It happened when decisions about imminent strikes had to be relayed fast and the U.S. diplomats in Pakistan or Washington didn’t have ready access to a more-secure system, either because it was night or they were traveling.

In other words, there has been a great deal of reporting on what are almost surely the emails in question, revealing that the key dispute pertains to an issue that CIA likes to pretend we don’t all know about, drone strikes in Pakistan.

In today’s hearing, McCullough reported that these emails — in addition to being a Special Access Program — are also classified Originator Controlled, ORCON, and the CIA (which he still didn’t name) has been refusing to distribute the emails or the statement beyond the original dissemination, the Intel committees and congressional leadership. So, in spite of the fact that numerous members of Congress have asked for more information (including, in today’s hearing, Chaffetz), they’ve been denied it. McCullough explained he had had to get his own staffers read into this, and he has gone back to the CIA (again, which he didn’t name) several times, only to have them refuse further distribution.

It may well be that the actual language used in the most sensitive emails revealed highly classified information — or it may be, as the WSJ reported, that State aides used a kind of code hiding the jist of their conversations.

Or it may be that State discussed a particularly controversial drone strike, such as the time CIA launched a drone strike right after Ray Davis was freed from Pakistani custody, which Jim White wrote about in a longer post suggesting CIA used drone strikes to retaliate against Pakistani action we don’t like.

Drone strikes in Pakistan by the US have occasionally been interrupted by various diplomatic issues. For example, there was a lull of over a month at the height of negotiations over the release of Raymond Davis. One of the most notorious US drone strikes was on March 17, 2011, the day after Raymond Davis was released. This signature strike killed over 40, and despite US claims (was that you, John Brennan?), that those killed “weren’t gathering for a bake sale” it was later determined that the majority of those killed were indeed civilians at a jirga to discuss local mineral rights. Because it was so poorly targeted, this strike always stood out in my mind as the product of an attitude where high-level US personnel demanded a target, no matter how poorly developed, simply to have something to hit since drone strikes had been on hold over the Davis negotiations and there was a need to teach Pakistan a lesson.

One way or another, though, these are topics that Congress (especially the Foreign Affairs Committees, which almost certainly have been denied these details) should be able to review.

But CIA is — as is their wont — playing classification games to ensure that a broader cross-section of Congress can’t assess how egregious this particular classification violation was.

Which, given CIA’s history, tends to mean either it wasn’t — or CIA has something to hide.

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Some Legislative Responses to Clinton’s Email Scandal

The Republicans have reverted to their natural “Benghazi witchhunt” form in the wake of Jim Comey’s announcement Tuesday that Hillary Clinton and her aides should not be charged, with Comey scheduled to testify before the House Oversight Committee at 10 AM.

Paul Ryan wrote a letter asking James Clapper to withhold classified briefings from Hillary. And the House Intelligence Committee is even considering a bill to prevent people who have mishandled classified information from getting clearances.

In light of the FBI’s findings, a congressional staffer told The Daily Beast that the House Intelligence Committee is considering legislation that could block security clearances for people who have been found to have mishandled classified information in the past.

It’s not clear how many of Clinton’s aides still have their government security clearances, but such a measure could make it more difficult for them to be renewed, should they come back to serve in a Clinton administration.

“The idea would be to make sure that these rules apply to a very wide range of people in the executive branch,” the staffer said. (Clinton herself would not need a clearance were she to become president.)

It’s nice to see the same Republicans who didn’t make a peep when David Petraeus kept — and still has — his clearance for doing worse than Hillary has finally getting religion on security clearances.

But this circus isn’t really going to make us better governed or safer.

So here are some fixes Congress should consider:

Add some teeth to the Federal/Presidential Records Acts

As I noted on Pacifica, Hillary’s real crime was trying to retain maximal control over her records as Secretary of State — probably best understood as an understandable effort to withhold anything potentially personal combined with a disinterest in full transparency. That effort backfired spectacularly, though, because as a result all of her emails have been released.

Still, every single Administration has had at least a minor email scandal going back to Poppy Bush destroying PROFS notes pertaining to Iran-Contra.

And yet none of those email scandals has ever amounted to anything, and many of them have led to the loss of records that would otherwise be subject to archiving and (for agency employees) FOIA.

So let’s add some teeth to these laws — and lets mandate and fund more rational archiving of covered records. And while we’re at it, let’s ensure that encrypted smart phone apps, like Signal, which diplomats in the field should be using to solve some of the communication problems identified in this Clinton scandal, will actually get archived.

Fix the Espionage Act (and the Computer Fraud and Abuse Act)

Steve Vladeck makes the case for this:

Congress has only amended the Espionage Act in detail on a handful of occasions and not significantly since 1950. All the while, critics have emerged from all corners—the academy, the courts, and within the government—urging Congress to clarify the myriad questions raised by the statute’s vague and overlapping terms, or to simply scrap it and start over. As the CIA’s general counsel told Congress in 1979, the uncertainty surrounding the Espionage Act presented “the worst of both worlds”:

On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.

In other words, the Espionage Act is at once too broad and not broad enough—and gives the government too much and too little discretion in cases in which individuals mishandle national security secrets, maliciously or otherwise.

To underscore this point, the provision that the government has used to go after those who shared classified information with individuals not entitled to receive it (including Petraeus, Drake, and Manning), codified at 18 U.S.C. § 793(d), makes it a crime if:

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted … to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it …

This provision is stunningly broad, and it’s easy to see how, at least as a matter of statutory interpretation, it covers leaking—when government employees (“lawfully having possession” of classified information) share that information with “any person not entitled to receive it.” But note how this doesn’t easily apply to Clinton’s case, as her communications, however unsecured, were generally with staffers who were“entitled to receive” classified information.

Instead, the provision folks have pointed to in her case is the even more strangely worded § 793(f), which makes it a crime for:

Whoever, being entrusted with or having lawful possession or control of [any of the items mentioned in § 793(d)], (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed … fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer …

Obviously, it’s easy to equate Clinton’s “extreme carelessness” with the statute’s “gross negligence.” But look closer: Did Clinton’s carelessness, however extreme, “[permit] … [classified information] to be removed from its proper place of custody or delivered to anyone in violation of [her] trust”? What does that even mean in the context of intangible information discussed over email? The short answer is nobody knows: This provision has virtually never been used at least partly because no one is really sure what it prohibits. It certainly appears to be focused on government employees who dispossess the government of classified material (like a courier who leaves a satchel full of secret documents in a public place). But how much further does it go?

There’s an easy answer here, and it’s to not use Clinton as a test case for an unprecedented prosecution pursuant to an underutilized criminal provision, even if some of us think what she did was a greater sin than the conduct of some who have been charged under the statute. The better way forward is for Congress to do something it’s refused to do for more than 60 years: carefully and comprehensively modernize the Espionage Act, and clarify exactly when it is, and is not, a crime to mishandle classified national security secrets.

Sadly, if Congress were to legislate the Espionage Act now, they might codify the attacks on whistleblowers. But they should not. They should distinguish between selling information to our adversaries and making information public. They should also make it clear that intent matters — because in the key circuit, covering the CIA, the Pentagon, and many contractors, intent hasn’t mattered since the John Kiriakou case.

Eliminate the arbitrariness of the clearance system

But part of that should also involve eliminating the arbitrary nature of the classification system.

I’ve often pointed to how, in the Jeffrey Sterling case, the only evidence he would mishandle classified information was his retention of 30-year old instructions on how to dial a rotary phone, something far less dangerous than what Hillary did.

Equally outrageous, though, is that four of the witnesses who may have testified against Sterling, probably including Bob S who was the key witness, have also mishandled classified information in the past. Those people not only didn’t get prosecuted, but they were permitted to serve as witnesses against Sterling without their own indiscretions being submitted as evidence. As far as we know, none lost their security clearance. Similarly, David Petraeus hasn’t lost his security clearance. But Ashkan Soltani was denied one and therefore can’t work at the White House countering cyberattacks.

Look, the classification system is broken, both because information is over-classified and because maintaining the boundaries between classified and unclassified is too unwieldy. That broken system is then magnified as people’s access to high-paying jobs are subjected to arbitrary review of security clearances. That’s only getting worse as the Intelligence Community ratchets up the Insider Threat program (rather than, say, technical means) to forestall another Manning or Snowden.

The IC has made some progress in recent years in shrinking the universe of people who have security clearances, and the IC is even making moves toward fixing classification. But the clearance system needs to be more transparent to those within it and more just.

Limit the President’s arbitrary authority over classification

Finally, Congress should try to put bounds to the currently arbitrary and unlimited authority Presidents claim over classified information.

As a reminder, the Executive Branch routinely cites the Navy v. Egan precedent to claim unlimited authority over the classified system. They did so when someone (it’s still unclear whether it was Bush or Cheney) authorized Scooter Libby to leak classified information — probably including Valerie Plame’s identity — to Judy Miller. And they did so when telling Vaughn Walker could not require the government to give al Haramain’s lawyers clearance to review the illegal wiretap log they had already seen before handing it over to the court.

And these claims affect Congress’ ability to do their job. The White House used CIA as cover to withhold a great deal of documents implicating the Bush White House in authorizing torture. Then, the White House backed CIA’s efforts to hide unclassified information, like the already-published identities of its torture-approving lawyers, with the release of the Torture Report summary. In his very last congressional speech, Carl Levin complained that he was never able to declassify a document on the Iraq War claims that Mohammed Atta met with a top Iraqi intelligence official in Prague.

This issue will resurface when Hillary, who I presume will still win this election, nominates some of the people involved in this scandal to serve in her White House. While she can nominate implicated aides — Jake Sullivan, Huma Abedin, and Cheryl Mills — for White House positions that require no confirmation (which is what Obama did with John Brennan, who was at that point still tainted by his role in torture), as soon as she names Sullivan to be National Security Advisor, as expected, Congress will complain that he should not have clearance.

She can do so — George Bush did the equivalent (remember he appointed John Poindexter, whose prosecution in relation to the Iran-Contra scandal was overturned on a technicality, to run the Total Information Awareness program).

There’s a very good question whether she should be permitted to do so. Even ignoring the question of whether Sullivan would appropriately treat classified information, it sets a horrible example for clearance holders who would lose their clearances.

But as far as things stand, she could. And that’s a problem.

To be fair, legislating on this issue is dicey, precisely because it will set off a constitutional challenge. But it should happen, if only because the Executive’s claims about Navy v. Egan go beyond what SCOTUS actually said.

Mandate and fund improved communication system

Update, after I posted MK reminded me I meant to include this.

If Congress is serious about this, then they will mandate and fund State to fix their decades-long communications problems.

But they won’t do that. Even 4 years after the Benghazi attack they’ve done little to improve security at State facilities.

Update: One thing that came up in today’s Comey hearing is that the FBI does not routinely tape non-custodial interviews (and fudges even with custodial interviews, even though DOJ passed a policy requiring it). That’s one more thing Congress could legislate! They could pass a simple law requiring FBI to start taping interviews.

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Principles Of Business Enterprises Part 8: Conclusion

The general plan of The Principles of Business Enterprises by Thorstein Veblen is to state several ideas about the way business operated in the Gilded Age, with explanation and examples, and then to examine the logical outcomes of the operation of these principles. There is no grand theory, just observation, description and discussion. Two of the principles are that businessmen operate solely to generate a profit, and that to achieve efficiency, the entire social life of working people had to be remade in the image of the ideal production worker.

Veblen identified the basis for the operation of business as the concept of property as applied to industrial production. The idea is that just as the products of the blacksmith and the cooper belonged to them to do with as they saw fit, factory owners were entitled to all of the production of the factory to do with as they saw fit. The entire system of the US is devoted to the protection of property, so naturally businessmen dictate government policies in all areas that affect their profits.

These ideas manifest themselves in our society. Businesses cooperate to insure efficient operation, and in the process help make sure they all profit. Education is focused on preparing the human capital to find a job, because the alternative is to starve. The press devotes itself to the maintenance of the illusion of democracy, while the actual practice is that federal and state legislatures and courts protect the property claims of capitalists and pave the way for increased profits from operations both in the US and around the world. Businesses charge whatever they can get away with, free from interference by government or enforcement of antitrust laws. If it creates more profit, businesses stop producing, and stop hiring, regardless of the impact on the community.

What Veblen saw in 1904, we see today. The debts of corporate persons are easily discharged in bankruptcy, but the debts of human beings are pursued by armies of lawyers and government officials. Banks are bailed out, but homeowners are ruined. Private schools cheat people, but those people have to pay student debt till they die. No one goes to jail for wrecking the economy or any other elite crime, but heaven help the guy caught with a bit of pot.

This is all the logical outcome of an understanding of the idea of property. Locke said that when artisans mixed their labor with physical things, they were entitled to own the finished product. In exactly the same way, Veblen says, the factory owner is said to be entitled to own the goods produced by the factory. But Veblen is quite clear that Locke’s theory doesn’t explain why this should be, because the industrial age requires most people to work in a coordinated system and a supporting social structure; and the amount produced in this system is orders of magnitude larger than any individual artisan could produce.

His line of thinking leads naturally to questions about distribution of the profits of production. Why exactly is the owner of a factory entitled to all the profits? Why exactly is the owner entitled to pay the workers as little as possible? After all, the owner of a steel mill can’t produce anything without coordinating with many other manufacturers, miners, farmers, transportation companies, and an army of workers all of whom show up and work cooperatively in each of these enterprises, and a social structure that supports all of this action. The owner cannot produce anything unless society is organized for industrial production. In today’s terms, app developers have nothing to do if there is no electricity or no city wired for cable. This is what Elizabeth Warren was talking about when she said

There is nobody in this country who got rich on their own. Nobody. You built a factory out there – good for you. But I want to be clear. You moved your goods to market on roads the rest of us paid for. You hired workers the rest of us paid to educate. You were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything at your factory… Now look. You built a factory and it turned into something terrific or a great idea – God bless! Keep a hunk of it. But part of the underlying social contract is you take a hunk of that and pay forward for the next kid who comes along.

Neither Warren nor Veblen pushes forward into talking about ownership of property. But that isn’t true of everyone. One of the things that confounds the defenders of the neoliberal consensus of pundits and mainstream economists it the apparent willingness of younger voters to consider socialism as a logical alternative to unregulated capitalism. Most explanations are based on the experience of the young with neoliberal capitalism. Here is Anis Shivani via Salon:

But millennials, in the most positive turn of events since the economic collapse, intuitively understand better. Circumstances not of their choosing have forced them to think outside the capitalist paradigm, which reduces human beings to figures of sales and productivity, and to consider if in their immediate lives, and in the organization of larger collectivities, there might not be more cooperative, nonviolent, mutually beneficial arrangements with better measures of human happiness than GDP growth or other statistics that benefit the financial class…

The idea is to move beyond money, interpreted in particular ways by capitalism, as the sole means of determining what is valued in human activity. Just because the means of production can be owned collectively does not mean—and indeed should not mean—that the state should be the owner.

Well, maybe. Cities own water systems and the pipes and sewage systems that provide us with water and sewage disposal. No one really believes it would be good to let the private sector suck profits out of us for something as important to staying alive as water. Why shouldn’t cities own other necessary and useful things, like electrical and cable lines? When you think about the willingness of private businesses to squeeze more money out of us in their relentless pursuit of profits at any cost, it’s easy to see why public ownership of specific companies might be a good idea.

Locke and his adherents, including the Founding Fathers, claimed that Locke’s idea of property rights was a Natural Law, a Natural Right. It was designed by the Almighty to direct humans along the path of righteousness. Today we don’t think like that. Veblen called Locke’s theory metaphysical, by which I think he meant philosophical as opposed to practical. Many of us demand certainty about such things and find it in bibles of one kind or another, including Locke, but many of us are more open to other ways of thinking. Veblen has a much more worldly manner, and I think he had a strong touch of the American philosophy of pragmatism, the school exemplified by John Dewey.

I don’t think I fully understand this book, not just because the language is sometimes difficult, but because I don’t think I understand the tone correctly. For example, he seems dismissive of socialism, but accepting of the trade union movement, and of the attitude of the workers whose acceptance of unbridled property rights was weakening. He notes several times that businessmen with their archaic natural law ideas control the nature of social life for workers, and exercise outsize influence on government, and their utter amorality. He mentions the bad effects each of these has on the community. Some books are like that; you have to read several works by the author and scholarly commentary to understand them fully.

Nevertheless, I plan to soldier on to the next book, Security, Territory and Population, a group of lectures by Michel Foucault. I’ve already read some of his works, including Discipline and Punish and The Birth of Biopolitics, so I at least have a running start.

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