Study: Fighting Terrorism With Military Almost Never Works

Remember when the George W. Bush campaign and the Republican Party was attacking John Kerry during the 2004 campaign over comments where they construed as him saying that terrorism is a police matter? Here’s a refresher:

Bush campaign Chairman Marc Racicot, in an appearance on CNN’s “Late Edition,” interpreted Kerry’s remarks as saying “that the war on terrorism is like a nuisance. He equated it to prostitution and gambling, a nuisance activity. You know, quite frankly, I just don’t think he has the right view of the world. It’s a pre-9/11 view of the world.”

Republican Party Chairman Ed Gillespie, on CBS’ “Face the Nation,” used similar language.

“Terrorism is not a law enforcement matter, as John Kerry repeatedly says. Terrorist activities are not like gambling. Terrorist activities are not like prostitution. And this demonstrates a disconcerting pre-September 11 mindset that will not make our country safer. And that is what we see relative to winning the war on terror and relative to Iraq.”

The Institute for Economics and Peace, a nonpartisan think tank in Australia, just issued its latest Global Terrorism Index. Buried deep in the report (pdf), on page 56, is this figure in which they summarize data from a RAND Corporation report:

end

The figure summarizes RAND Corporation findings from a study of 40 years of data on terrorist groups and how the terror activities of those groups come to an end. Despite the gargantuan US Great War on Terror with its trillions of dollars wasted and hundreds of thousands of people killed, only seven percent of the time when a terrorist group ends its activities is that due to them being defeated militarily. In fact, since they cease ten percent of the time due to achieving their goals, it can be argued that a military approach alone makes it more likely the terrorists will win than lose. The leading way for terrorist groups to cease their activities is for them to become a part of the political process, at forty-three percent. And gosh, it turns out that Kerry was correct, because police action (which in this study means “policing and intelligence agencies breaking up the group and either arresting or killing key members”) was the cause forty percent of the time when terrorist groups stop using terror. Oh, and adding further to the importance of policing, the report also states elsewhere that homicide accounts for forty times more deaths globally than terrorism.

As we saw in a previous report on the Global Terrorism Index, once again the countries in which the US GWOT is most active are those that have the worst ratings for terrorism. The list is headed by Iraq, with Afghanistan in the second position, Pakistan third and Syria fifth.

Not only are the countries where the US is actively militarily at the top of the index, the timeline of terror attacks provides a very strong correlation for the jump in global terror activity being triggered by the US invasion of Iraq in 2003:

timeline

The timeline seems to suggest that terror attacks were going back down after the 9/11 large event, but then took off after the US invaded Iraq.

Not only should the US learn from this report that the “military only” approach to terrorism is dead wrong, but there are warnings that the US should heed about domestic conditions as well. Here is how the study assesses the risk for future terrorism events:

Using terrorist incidents and events data dating back to 1970 and comparing it to over 5,000 socio-economic, political and conflict indicators, three groups of factors related to terrorist activity have been identified. Countries that are weak on these factors and do not have high levels of terrorism are assessed as being at risk.

The correlations section of this report details the most significant socio-economic correlates with terrorism. There are three groups of factors:

    Social hostilities between different ethnic, religious and linguistic groups, lack of intergroup cohesion and group grievances.
    Measures of state repression such as extrajudicial killings, political terror and gross human rights abuses.
    Other forms of violence such violent crime, organised conflict deaths and violent demonstrations.

It sure sounds to me like a lot those boxes get checked when we start talking about what is going on in Ferguson, Missouri.

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White House Supports USA Freedom Act, with Bates-Clapper Caveats about Amicus

The White House has come out with an enthusiastic statement supporting USA Freedom Act.

The Administration strongly supports Senate passage of S. 2685, the USA FREEDOM Act. In January, the President called on Congress to enact important changes to the Foreign Intelligence Surveillance Act (FISA) that would keep our Nation safe, while enhancing privacy and better safeguarding our civil liberties. This past spring, a broad bipartisan majority of the House passed a bill that answered the President’s call. S. 2685 carefully builds on the good work done in the House and has won the support of privacy and civil liberties advocates and the private sector, including significant members of the technology community. As the Attorney General and the Director of National Intelligence stated in a letter dated September 2, 2014, the bill is a reasonable compromise that enhances privacy and civil liberties and increases transparency.

The bill strengthens the FISA’s privacy and civil liberties protections, while preserving essential authorities that our intelligence and law enforcement professionals need.

It says the bill ends bulk collection which might be a useful record if the President used a definition besides “without any discriminator,” but that is what he is on the record as meaning by “bulk.”

The bill would prohibit bulk collection through the use of Section 215, FISA pen registers, and National Security Letters while maintaining critical authorities to conduct more targeted collection. The Attorney General and the Director of National Intelligence have indicated that the bill will retain the essential operational capabilities of the existing bulk telephone metadata program while eliminating bulk collection, based on communications providers’ existing practices.

Perhaps the most troubling part of Obama’s statement, however, is its endorsement of John Bates’ language about the amicus as echoed by James Clapper and Eric Holder, which among other things said that the amicus could not be required to represent the interests of civil liberties and privacy.

The bill also authorizes an independent voice in significant cases before the Foreign Intelligence Surveillance Court (FISC) — the Administration is aware of the concerns with regard to this issue, as outlined in the letter from the Attorney General and the Director of National Intelligence, and the Administration anticipates that Congress will address those concerns. Finally, the bill will enhance transparency by expanding the amount of information providers can disclose and increasing public reporting requirements.

In sum, this legislation will help strengthen Americans’ confidence in the Government’s use of these important national security authorities. Without passage of this bill, critical authorities that are appropriately reformed in this legislation could expire next summer. The Administration urges Congress to take action on this legislation now, since delay may subject these important national security authorities to brinksmanship and uncertainty. The Administration urges the Senate to pass the USA FREEDOM Act and for the House to act expeditiously so that the President can sign legislation into law this year. [my emphasis]

As I said here, the designed impotence of the amicus is not a reason to oppose the bill; it’s just a reason to expect to have to wait 9 years before it becomes functional, as happened with PCLOB. Still, it is very very troubling that given all the evidence that the Executive has been abusing the process of the FISC for a decade, the Executive is moving to ensure they’ll still be able to do so.

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Ed Markey May Not Be Adequately Prepared to Vote on USA Freedom Act

Update: I realize something about this classification guide. While it was updated in 2012 (so after the Internet dragnet got shut down) it was dated August 2009, so while it was still running. So that part of this may not be location data. But the FBI almost certainly still does do fun stuff w/PRTT because it’s the one part of PRTT that remains classified.

PRTT1

Ed Markey, who is absolutely superb on tracking Title III surveillance, continues that tradition today with a letter to Eric Holder asking about the US Marshall Program DirtBox surveillance program revealed last week by WSJ.

Among his questions are:

Do other agencies within DOJ operate similar programs, in which airplanes, helicopters or drones with attached cellular surveillance equipment are flown over US airspace?

What types of court order, if any, are sought and obtained to authorize searches conducted under this program?

In what kind of investigations are the “dirtbox” and similar technology used to locate targets? Are there any limitations imposed on the kinds of investigations in which the dirtbox and similar technology can be used?

According to media reports, the dirtbox technology, which is similar to a so-called “stingray” technology, works by mimicking the cellular networks of U.S. wireless carriers. Upon what specific legal authority does the Department rely to mimic these cellular networks?

Do the dirtbox and stingray send signals through the walls of innocent people’s homes in order to communicate with and identify the phones within?

What, if any, policies govern the collection, retention, use and sharing of this information?

Are individuals–either those suspected of committing crimes or innocent individuals–provided notice that information about their phones was collected? If yes, explain how. If no, why not?

I could be spectacularly wrong on this point, but I very very strongly believe the answer to some of his questions lie in a bill Markey is all set to vote for tomorrow.

We know that the government — including the FBI — uses Title III Pen Registers to obtain authorization to use Stingrays; so one answer Markey will get is “Title III PRTT” and “no notice.”

Given that several departments at DOJ use PRTT to get Stingrays on the criminal side, it is highly likely that a significant number of the 130-ish PRTT orders approved a year are for Stingray or related use.

Using that logic gets us to the likelihood that FBI’s still unexplained PRTT program — revealed in this 2012 NSA declassification guide — also uses Stingray technology to provide location data. That’s true especially given that NSA would have no need to go to FBI to get either phone or email contacts, because it has existing means to obtain that (though if the cell phone coverage of the Section 215 dragnet is as bad as they say, it may require pen registers for that).

PRTT2

PRTT3

PRTT4

The guide distinguishes between individual orders, which are classified SECRET, and “FBI Pen Register Trap Trace,” which therefore seems to be more programmatic. The FBI PRTT is treated almost exactly like the then undisclosed phone dragnet was in the same review, as a highly classified program where even minimized information is TS/SCI.

Now, it’s possible (ha!) that this is a very limited program, just targeting individual targets in localized spots for a brief period of time.

It’s also possible the government scaled this back after the US v. Jones decision.

But it’s equally possible that this is a bulky dragnet akin to the phone dragnet, one that will be invisible in transparency measures under USA Freedom Act because location trackers are excluded from that reporting.

I do hope Markey insists on getting answers to his questions before he votes for this bill tomorrow.

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Even as Congress Prepares to Legislate, Intelligence Community Stalling on Section 215 IG Report

I’ve been covering the DOJ Inspector General’s billion-day old review of Section 215.

  • June 2010: Then DOJ IG Glenn Fine lays out investigation
  • June 2013: Transition to Michael Horowitz stalls PATRIOT investigation
  • August 2013: The investigation has been ongoing
  • September 2013: Pat Leahy calls for an IC IG investigation into 215 and 702; IC IG Charles McCullough declines
  • December 2013: Horowitz states current investigation limited by AG/DNI declassification of earlier reports
  • April 2014: The Section 215 review has a baby!

If my calculation is correct, that report has been pending for 1,616 days.

Today, in a report on the most significant challenges faced by the government, the IG explains what happened to the review: it is caught up in declassification review.

Ongoing OIG work, such as our reviews of the Department’s requests for and use of business records under Section 215 of the USA PATRIOT Reauthorization Act and the Department’s use of pen register and trap-and-trace devices under the Foreign Intelligence Surveillance Act (FISA), also address privacy concerns implicated by the use of national security authorities to collect data.  Although the OIG completed both of these reviews months ago, and we have provided classified briefings to Congress regarding them, we have been unable to release the classified reports to Congress or non-classified reports to the public because the classification review being conducted by the intelligence community, which includes the FBI, is still ongoing.

This is craziness! Congress is actively legislating on this topic … tomorrow! There’s also the matter of the secret FBI PRTT program, that I strongly suspect is a location dragnet, which this report likely covers.

But the IC is suppressing a report that has been in the works for over 4 years with a slow declassification review?

Update: From Glenn Fine’s original letter scoping out the review, here’s some of what it includes.

It will examine the number of Section 215 applications filed from 2007 through 2009, how the FBI is using the tool today, and describe any reported improper or illegal uses of the authority. Our review also will examine the progress the FBI has made in addressing recommendations contained in our prior reports that the FBI draft and implement minimization procedures specifically for information collected under Section 215 authority.

We also intend to conduct a programmatic review of the FBI’s use of its pen register and trap and trace authority under the FISA. That part of the review will examine issues such as how the FBI uses the authority to collect information, what the FBI does with the information it collects, and whether there have been any improper or illegal uses of the authority either reported by the FBI or identified by the OIG.

In addition to identifying any improper uses of these authorities (the report should provide some sense of how rigorous the First Amendment review is), it will certainly lay out how FBI has refused to implement minimization procedures are required by law and recommended in DOJ IG’s last Section 215 report (we know this to be the case because the FISC is imposing minimization procedures itself, and requiring compliance reviews).

All that would be rather important to know before extending Section 215 for another 3 years.

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US Feeding its Addiction to Training Iraqi Military

Political and military leaders in the US are hopelessly addicted to the idea of training an Iraqi military. Never mind that it fails every time a “new” initiative on training is introduced. As soon as the situation in Iraq deteriorates, the only idea that Washington can put forward is train more Iraqi security forces. As soon as genius Paul Bremer disbanded the Iraqi military and banned Saddam’s Baath party, training a new force became central to US activities in Iraq even though Bremer’s move had made it impossible.

David Petraeus, the ass-kissing little chickenshit himself, first led the training effort and was given several Mulligans. He burst on the political scene in 2004, penning an op-ed in the Washington Post in which he spouted fictitious numbers on accomplishments in training and perhaps helped Bush to re-election. He then was hailed again by the press as the perfect leader to train Iraqi forces in 2007, with no discussion of what happened to all those forces he “trained” earlier. And now that Iraqi forces fled their posts in droves ahead of ISIS, the only solution our fearless leaders can imagine is for us to once again train Iraqi forces.

Not only are we getting another fix for our training junkies, but Chuck Hagel is accelerating the effort:

U.S. Defense Secretary Chuck Hagel said on Sunday the Pentagon will accelerate its mission to train Iraqi forces to combat Islamic State militants, using troops already in Iraq to start the effort while funding is sought for a broader initiative.

The quest for more funding had been announced earlier by Obama:

Hagel’s announcement follows President Barack Obama’s Nov. 7 decision to roughly double the number of U.S. troops in Iraq, adding 1,500 military personnel to establish sites to train nine Iraqi brigades and set up two more centers to advise military commands.

Obama also sought $5.6 billion in funding from Congress for the initiative, including $1.6 billion to train and equip Iraqi forces. Officials initially said the funding would have to be approved by Congress before the new effort could begin.

Translating from military-speak, nine brigades in US forces means between 27,000 and 45,000 troops. So Obama wants $1.6 billion to train a few more tens of thousands of Iraqi troops. We have already spent many more billions to train several hundreds of thousands of Iraqi security forces. Several times. Why on earth would anyone think it will go any better this time?

Of course, one bit of information feeding the desire for the junkies is that Iran now openly admits that they have advisors in Iraq helping the military:

A senior Iraqi official lauded Iran’s assistance to Iraq in fighting terrorist groups, including the ISIL, and said the Iranian military advisors played an important role in freeing Jarf Asakhr in the Musayyib district in the North of Babylon province.

“The Iranian advisors were present in the battle ground during the Jarf Asakhr operations and provided excellent counselling to the fighters of popular front,” Governor-General of Karbala province Aqil al-Tarihi told FNA on Sunday.

Stressing that the cleanup and liberation operations in Jarf Asakhr were all carried out by the Iraqi forces, he said, “Iran helped the success of the operations with its useful consultations.”

Late September, Deputy Chief of Staff of the Iranian Armed Forces Major General Gholam Ali Rashid announced that Iran’s military advisors were present in Iraq, Lebanon and Palestine to provide those nations with necessary military recommendations.

Besides bragging about their advisors in Iraq, Iran is having a lot of fun trolling the US on its misadventures in Iraq. We know, of course, that ISIS has come into possession of large amounts of US-provided weaponry as Iraqi bases have been seized and that there have been reports of US airdrops of supplies and weapons missing their targets. Iran provided this hot take on those developments today:

Iraqi intelligence sources disclosed that US military planes have been supplying the Islamic State of Iraq and the Levant Takfiri terrorists with weapons and foodstuff under the guise of air raids on militants’ positions.

The Iraqi forces have found out that the US aircraft usually airdrop arms and food cargoes for ISIL militants who collect them on the ground, Asia news agency quoted Iraqi army’s intelligence officers as saying.

“The Iraqi intelligence sources reiterated that the US military planes have airdropped several aid cargoes for ISIL terrorists to help them resist the siege laid by the Iraqi army, security and popular forces,” added the report.

On Saturday, Iraqi security sources disclosed that the ISIL terrorist group is using the state-of-the-art weapons which are only manufactured by the US and each of their bullets are worth thousands of dollars.

“What is important is that the US sends these weapons to only those that cooperate with the Pentagon and this indicates that the US plays a role in arming the ISIL,” an Iraqi security source told FNA.

The source noted that the most important advantage of the US-made weapons used by the ISIL is that “these bullets pierce armored vehicles and kill the people inside the vehicle”.

He said each of such bullets is worth $2,000, and added, “These weapons have killed many Iraqi military and volunteer forces so far.”

Well, gosh. If ISIS has all those sophisticated weapons we originally gave to Iraq, the only answer is to send more of those sophisticated weapons to Iraq and train more Iraqi troops. Who will once again abandon their posts, leaving the weapons for the next opponent to seize…

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Under Cover: The Targets of Stings

The NYT brought in Will Arkin (partnering with Eric Lichtblau) to talk about the proliferation of the use of undercover officials in government agencies. The Supreme Court, IRS, the Smithsonian, and DOD are all playing dress up to spy on Americans (and the IRS permits agents to pretend to be lawyers, doctors, clergy, and journalists).

The article makes it clear that — as might be imagined — the drug war is the most common focus of these undercover officers.

More than half of all the work they described is in pursuit of the illicit drug trade. Money laundering, gangs and organized crime investigations make up the second-largest group of operations.

But it doesn’t really step back and look at who else is getting targeted, which I’ve tried to lay on in this stable.

Screen shot 2014-11-16 at 12.07.12 PM

There are several concerning aspects of this list. I’m hoping the Smithsonian is using under cover officers solely to police the Holocaust and similar museums; the Holocaust museum, after all, has been targeted by a right wing terrorist recently. I might see the point on the Washington Memorial. But I do hope they’re no patrolling the Air and Space Museum because they might catch people who, like I did when I was in fifth grade, use the museum as a playground for stupid pre-teen drama while on a field trip.

DOD’s expanded use of undercover officers to target Americans is very troubling. The 9th Circuit recently threw out a conviction because the Navy had initiated the case searching data in the guise of protecting Spokane’s bases. I suspect, in response, the government will just get more assiduous at laundering such investigations. And it would be highly improper for them to do so clandestinely.

That said, this table is just as telling for what it doesn’t include as what it does.

If USDA is going undercover, why not send undercover inspectors to work in food processing plants, as a great way to not only show the food safety violations, but also the labor violations? Why not go undercover to investigate CAFOs?

The big silence, however, is about bank crime. While I’m sure SEC uses some undercover officers to investigate financial crime, you don’t hear of it anymore, since the failed Goldman prosecution. And we know FBI gave up efforts to use undercover officers to investigate (penny ante) mortgage fraud crime because, well, it just forgot.

But when DOJ’s Inspector General investigated what FBI did when it was given $196 million between 2009 and 2011 to investigate (penny ante) mortgage fraud, FBI’s focus on the issue actually decreased (and DOJ lied about its results). When FBI decided to try to investigate mortgage fraud proactively by using undercover operations, like it does terrorism and drugs, its agents just couldn’t figure out how to do so (in many cases Agents were never told of the effort), so the effort was dropped.

So it’s not just that Agencies are using undercover officers to investigate every little thing, including legitimate dissent, with too little oversight.

Its also that the government, as a whole, is using this increasingly to investigate those penny ante crimes, but not the biggest criminals, like the banksters. So long as the choice of these undercover operations reflects inherent bias (and it always has, especially in the war on drugs), then the underlying structure is illegitimate.

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Kitties Eat Cardinals and Leave the Guts as a Gift on the Doorstep!!!!

This is a stub for what will at some point become bmaz’ Trash Talk for a week in which our normally hapless teams face each other when it matters. Let’s see if he notices…


“Don’t you play it no mo.”


Huh. Still hasn’t figured out.

This Cash is for bmaz who’s really more of a Chevy guy than I am.


Post is gonna get long.


Mixing it up cause I apparently have all day.

And now, Burt Ives!! (But don’t swallow any cats.)

Oops. That’s not nice emptywheel!!


At Peterr’s suggestion I’ve swapped out the Itsy Bitsy Spider.

Adding Muschamp Love in honor of Jim White. May the Replacement Coach Sweepstakes begin in earnest!

I will count the ManningLemonSuckingFace after pick flowers. Bwahahahaha!

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UNCAT Process Exposes Flaw in US Torture Coverup: DOJ Not Final Authority

A combination of factors is forcing the issue of US torture back into the international spotlight and there are even hints that progress on some fronts is occurring. Consider, for instance, James Risen’s report this morning that the American Pyschological Association, greatly embarrassed by the revelations in Risen’s just-published book, has re-opened an investigation into the role the association played in giving cover to pyschologists who lent their credentials to the torture program in an effort to pronounce it medically ethical. We also have gotten the first official hint from Mark Udall himself that he has not ruled out using the Senate’s speech and debate clause to enter the Senate Intelligence Committtee’s report on torture into the record (the way that Mike Gravel disclosed the Pentagon Papers), bypassing the two year old debate about redactions.

We should pay special attention, though, to word filtering out of Geneva as the United Nations Committee Against Torture reviews the report submitted by the US. As a signatory to the Convention Against Torture, the US is required to make periodic reports to the committee. The process, however, is exceedingly slow. The current report from the US (pdf) is finally getting around to answering questions submitted to the US in 2006 and 2010. A New York Times story from Charlie Savage shows that the committee has been paying close attention both to what the US is saying and to what the US is doing. Consider this blockbuster:

Alessio Bruni of Italy, a member of the United Nations committee, pressed the delegation to explain Appendix M of the manual, which contains special procedures for separating captives in order to prevent them from communicating. The appendix says that prisoners shall receive at least four hours of sleep a day — an amount Mr. Bruni said would be sleep deprivation over prolonged periods and unrelated to preventing communication.

Brig. Gen. Richard C. Gross, the top legal adviser to the Joint Chiefs of Staff, said that reading the appendix as intended to permit sleep deprivation was a misinterpretation. Four hours is “a minimum standard; it’s not the maximum they can get,” he said, adding that the rule had to be read in the context of the rest of the manual, including a requirement for medical and legal monitoring of treatment “to ensure it is humane, legal and so forth.”

Mr. Bruni was not persuaded. He said that calling the provision a minimum standard still meant four hours a night for long periods was “permissible.” He suggested that Appendix M “be simply deleted.”

This exchange counts as a huge victory for the community of activists who have fought hard to abolish all forms of torture by the US. When it comes to the Appendix M battle, though, perhaps nobody has been more determined to expose the torture still embedded in Appendix M practices than Jeff Kaye, and he is to be congratulated for the support he provided in getting this question to the forefront.

The most important part of the proceedings, though, pertains to the questions about US investigation of torture since it now openly admits torture took place. Returning to Savage’s report:

A provision of the treaty, the Convention Against Torture, requires parties to investigate and provide accountability for past instances of torture. The American delegation said that the United States had investigated the C.I.A. program, and that the coming publication of a Senate Intelligence Committee report would add to the public record.

/snip/

The American officials pointed to a criminal investigation by John H. Durham, an assistant United States attorney in Connecticut, whom Michael B. Mukasey, then attorney general, appointed in 2008 to look at whether the C.I.A. had broken the law by destroying videotapes of its interrogations of Qaeda suspects.

In 2009, Attorney General Eric H. Holder Jr. expanded Mr. Durham’s mandate to look at C.I.A. torture that went beyond what the Justice Department had said was legal. Mr. Durham eventually closed the investigation without indicting anyone.

Another member of the United Nations panel, Jens Modvig of Denmark, pressed for details. He asked if Mr. Durham’s team had interviewed any current or former detainees.

It is clear from Modvig’s question that he feels the US investigation fell short of what is required. To get a good feel for that, we can look to this terrific “shadow report” (pdf) to the UNCAT prepared by “Advocates for US Torture Prosecutions” at Harvard Law School.

The report does an excellent job of framing the questions at hand, beginning with the observation that “The U.S. Government’s criminal program of torture was authorized at the highest levels” (fitting nicely with Marcy’s post earlier today about it being authorized by the President). But when we get to inadequacy of Durham’s investigation, we see this (footnotes removed): Continue reading

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How to Fix the FISA Court … Or Not

The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.(26)

That line, from the FISCR opinion finding the Protect America Act constitutional, gets to the core problem with the FISA Court scheme. Even in 2009, when the line was first made public, it was pretty clear the government had made a false claim to the FISA Court of Review.

Now that we know that FBI had already been given authority to keep PAA-collected content in databases that they could search at what is now called the assessment stage of investigations – warrantless searches of the content of Americans against whom the FBI has no evidence of wrong-doing — the claim remains one of the signature moments where the government got approval for a program by being less than candid to the court (the government has been caught doing so in both Title III courts and at FISC, and continues to do so).

That’s also why I find Greg McNeal’s paper on Reforming the FISC, while very important, ultimately unconvincing.

McNeal’s paper is invaluable for the way he assesses the decision — in May 2006 — to authorize the collection of all phone records under Section 215. Not only does the paper largely agree with the Democratic appointees on PCLOB that the program is not authorized by the Section 215 statute, McNeal conducts his own assessment of the government’s application to use Section 215 for that purpose.

The application does not fare well.

Moreover, the government recognized that not all records would be relevant to an investigation, but justified relevance on what could best be described as usefulness or necessity to enable the government’s metadata analysis, stating:

The Application fully satisfies all requirements of title V of FISA. In particular, the Application seeks the production of tangible things “for” an international terrorism investigation. 50 U.S.C. § 1861(a)(1). In addition, the Application includes a statement of facts demonstrating that there are reasonable grounds to believe that the business records sought are “relevant” to an authorized investigation. Id.  § 1861(b)(2). Although the call detail records of the [redacted] contain large volumes of metadata, the vast majority of which will not be terrorist-related, the scope of the business records request presents no infirmity under title V. All of the business records to be collected here are relevant to FBI investigations into [redacted] because the NSA can effectively conduct metadata analysis only if it has the data in bulk.49

The government went even further, arguing that if the FISC found that the records were not relevant, that the FISC should read relevance out of the statute by tailoring its analysis in a way that would balance the government’s request to collect metadata in bulk against the degree of intrusion into privacy interests. Disregarding the fact that the balancing of these interests was likely already engaged in by Congress when writing section 215, the government wrote:

In addition, even if the metadata from non-terrorist communications were deemed not relevant, nothing in title V of FISA demands that a request for the production of “any tangible things” under that provision collect only information that is strictly relevant to the international terrorism investigation at hand. Were the Court to require some tailoring to fit the information that will actually be terrorist-related, the business records request detailed in the Application would meet any proper test for reasonable tailoring. Any tailoring standard must be informed by a balancing of the government interest at stake against the degree of intrusion into any protected privacy interests. Here, the Government’s interest is the most compelling imaginable: the defense of the Nation in wartime from attacks that may take thousands of lives. On the other side of the balance, the intrusion is minimal. As the Supreme Court has held, there is no constitutionally protected interest in metadata, such as numbers dialed on a telephone.50

Thus, what the government asked the court to disregard the judgment of the Congress as to the limitations and privacy interests at stake in the collection of business records. Specifically, the government asked the FISC to disregard Congress’s imposition of a statutory requirement that business records be relevant, and in disregarding that statutory requirement rely on the fact that there was no constitutionally protected privacy interest in business records. The government’s argument flipped the statute on its head, as the purpose of enhancing protections under section 215 was to supplement the constitutional baseline protections for privacy that were deemed inadequate by Congress.

McNeal is no hippie. That he largely agrees and goes beyond PCLOB’s conclusion that this decision was not authorized by the statute is significant.

But as I said, I disagree with his remedy — and also with his assessment of the single source of this dysfunction.

McNeal’s remedy is laudable. He suggests all FISC decisions should be presumptively declassified and any significant FISC decision should get automatic appellate review, done by FISCR. That’s not dissimilar to a measure in Pat Leahy’s USA Freedom Act, which I’ve written about here. With my cautions about that scheme noted, I think McNeal’s remedy may have value.

The reason it won’t be enough stems from two things.

First, the government has proven it cannot be trusted with ex parte proceedings in the FISC. That may seem harsh, but the Yahoo challenge — which is the most complete view we’ve ever had of how the court works, even with a weak adversary — really damns the government’s conduct. In addition to the seemingly false claim to FISCR about whether the government held databases of incidentally collected data, over the course of the Yahoo challenge, the government,

  • Entirely restructured the program — bringing the FBI into a central role of the process — without telling Reggie Walton about these major changes to the program the challenge he was presiding over evaluated; this would be the first of 4 known times in Walton’s 7-year tenure where he had to deal with the government withholding materially significant information from the court
  • Provided outdated versions of documents, effectively hiding metadata that would have shown EO 12333, which was a key issue being litigated, was more fluid than presented to the court
  •  Apparently did not notice either FISC or FISCR about an OLC opinion — language from which was declassified right in the middle of the challenge — authorizing the President to pixie dust EO 12333 at any time without noting that publicly
  • Apparently did not provide the underlying documents explaining another significant change they made during the course of the challenge, which would have revealed how easily Americans could be reverse targeted under a program prohibiting it; these procedures were critical to FISCR’s conclusion the program was legal

In short, the materials withheld or misrepresented over the course of the Yahoo challenge may have made the difference in FISCR’s judgment that the program was legal (even ignoring all the things withheld from Yahoo, especially regarding the revised role of FBI in the process). (Note, in his paper, McNeal rightly argues Congress and the public could have had a clear idea of what Section 702 does; I’d limit that by noting that almost no one besides me imagined they were doing back door searches before that was revealed by the Snowden leaks).

One problem with McNeal’s suggestion, then, is that the government simply can’t be trusted to engage in ex parte proceedings before the FISC or FISCR. Every major program we’ve seen authorized by the court has featured significant misrepresentations about what the program really entailed. Every one! Until we eliminate that problem, the value of these courts will be limited.

But then there is the other problem, my own assessment of the source of the problem with FISC. McNeal thinks it is that Congress wants to pawn its authority off onto the FISC.

The underlying disease is that Congress wants things to operate the way that they do; Congress wants the FISC and has incentives to maintain the status quo.

Why does Congress want the FISC? Because it allows them to push accountability off to someone else. If members ofCongress are responsible for conducting oversight of secretoperations, their reputations are on the line if the operations gotoo far toward violating civil liberties, or not far enoughtoward protecting national security. However, with the FISC conducting operations, Congress has the ability to dodge accountability by claiming they have empowered a court to conduct oversight.

I don’t, in general, disagree with this sentiment in the least. The last thing Congress wants to do is make a decision that might later be tied to an intelligence failure, a terrorist attack, a botched operation. Heck, I’d add that the last thing most members of Congress serving on the Intelligence Committees would want to do is piss off the contractors whose donations provide one of the perks of the seat.

But the dysfunction of the FISC stems, in significant part, from something else.

In his paper on the phone dragnet (which partly incorporates the Internet dragnet), David Kris suggests the original decision to bring the dragnets under the FISC (in the paper he was limited by DOJ review about what he could say of the Internet dragnet, so it is not entirely clear whether he means the Colleen Kollar-Kotelly opinion that paved the way for the flawed Malcolm Howard one McNeal critiques, or the Howard one) was erroneous. Continue reading

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Unsaid at the UN: “Because the President Ordered It”

I caught a bit of the grilling that UN experts put the US panel of witnesses through, asking about the various areas where the US does not abide by our treaty obligations on torture and cruel treatment. The spin was thick, as US officials tried to pretend things like the Durham investigation were legitimate exercises. Here’s Kevin Gosztola’s take:

One of the many critical issues raised was the fact that Attorney General Eric Holder had appointed Assistant US Attorney John Durham in 2009 to conduct a preliminary review into “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.” But, in June 2011, Durham decided that only the death of two individuals in US custody at overseas locations warranted the opening of “full criminal investigations.”

By August 30, 2012, the criminal investigations into the deaths of those individuals were closed. The Department of Justice declined to prosecute “because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”

David Bitkower, who is the Deputy Assistant Attorney General for the Justice Department’s Criminal Division, attempted to satisfy the concerns of the Committee:

…Mr. Durham and his team reviewed the treatment of 101 such detainee cases. In so doing, he drew upon information provided by the CIA inspector general and report from the International Committee of the Red Cross regarding the treatment of high-value detainees formerly in CIA custody, the Department of Justice’s report on legal guidance related to enhanced interrogation techniques and other sources. After reviewing a substantial volume of information, Mr. Durham recommended the opening of two full criminal investigations and Attorney General Eric Holder accepted that recommendation.

After investigation the Department ultimately determined not to initiate prosecution of those cases. That decision was made based on the same principles that federal prosecutors apply in all determinations of whether to initiate a prosecution. Specifically, Mr. Durham’s review concluded that the admissible evidence would not be sufficient to obtain and sustain convictions beyond a reasonable doubt…

However, there were no specific incidents, which Durham may have examined, mentioned by Bitkower.

“Because the cases did not result in prosecutions, I cannot publicly describe with specificity the investigative methods employed by Mr. Durham or the identities of any witnesses his team may have interviewed,” he declared. “Overall, however, the investigations involved interviews of approximately 96 witnesses and the examination of physical and documentary evidence. In short, Mr. Durham had access to and reviewed a broad array of information relating to allegations of mistreatment.”

The easy explanation these officials should have offered is that Durham let the Statutes of Limitation on torture expire on the torture and wrongful death cases he investigated.

But there’s another, one mirrored in US claims that David Passaro represents its commitment to prosecute abuse. Passaro, I’ve pointed out, was specifically denied documents that would have shown his alleged conduct (there were other problems with his trial) fell squarely in the Interrogation Guidelines in place at the time. Passaro was also denied access to the Presidential finding, which not only authorized his function in training Afghan paramilitaries, but authorized what was ultimately the torture program. (See my review of these issues from the last time the government used Passaro’s case as an exemplar.)

The people Durham would have investigated would all have had much better access to those documents (though Passaro had a briefcase of documents that were seized from him). As soon as you got to the Jonathan Fredmans and the Stephen Kappes, you’d have people with good claims to have been ordered personally to implement a torture program.

Ordered, by the President.

That’s why the panel yesterday all gave such consistently awkward answers. They’re still trying to hide that this came right from the President.

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Emptywheel Twitterverse

bmaz @PhilPerspective @alexisgoldstein But Rudy IS a monster, and long been known as such to those of us in crim def community going back to SDNY
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bmaz @PhilPerspective @alexisgoldstein 5'9" according to teh Google
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emptywheel RT @PGEddington: DHS Set To Destroy "Einstein" Surveillance Records http://t.co/z0AcbTRjrD
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bmaz @ScottGreenfield I watched it a couple of times on NSA surveillance law when friends were on. Not so good.
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emptywheel @TimothyS That's a piece from you I'd love to see. Especially since people made such a big deal abt Qatar and Brookings.
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emptywheel RT @TimothyS: Read this about Abe's Japan & consider that his right-wing gov't is a major donor to the shadow Pentagon AKA @CNASdc: http://…
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emptywheel @MiekeEoyang Unclear if trove Udall was hypothetically referring to was US Co data collected overseas, but could be. @KevinBankston
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emptywheel @MiekeEoyang But there is still issue both Feinstein & Udall raised, "troves" of USP data that should be treated under FISA @KevinBankston
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bmaz @alexisgoldstein @PhilPerspective But you are nice and good and all; that's different!
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bmaz @alexisgoldstein @MichaelEDyson @meetthepress Rudy 911 was just gross.
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bmaz RT @alexisgoldstein: Thank God @MichaelEDyson was there to speak truth to Rudy Giuliani's disgusting nonsense on @MeetThePress http://t.co/
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