Adventures in Credulous NSA Journalism, Episode 2,524

The Hill sees fit to quote NSA’s Compliance Officer John DeLong boasting that the NSA put in (one of) the reforms Obama announced the day he announced it — which (DeLong claimed) was proof that NSA’s compliance system works.

Earlier this year, Obama directed the NSA to get court approval before it searched a database of Americans’ phone records and limited those searches to people two “hops” away from a suspect.

DeLong said on Thursday that the changes were put into effect the same day that the president announced them.

“It helped to have a compliance program — a compliance workforce — that was already in place,” he said. That way, the agency was not operating “from a cold start.”

As I noted in January when commentators first started hailing what the Administration billed as a great change, it was instead presidential codification of a policy that had been in place since 2011.

I’m seeing a lot of enthusiasm about President Obama’s promise to limit the NSA to 2 hops on its phone dragnet.

Effective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of three.

But it’s not that big of a limit.

As far back as 2011, the NSA had standardized on 2-hops, only permitting a 3rd with special approval. (See page 13.)

While the BR Order permits contact chaining for up to three hops, NSA has decided to limit contact chaining to only two hops away from the RAS-approved identifier without prior approval from your Division management to chain the third hop.

So in effect, Obama has replaced the NSA’s internal directive limiting the hops to 2 with his own directive (which can be pixie dusted with no notice) limiting the hops to 2.

What NSA’s ability to implement this change immediately shows is not the great performance of its compliance program, but rather the ability to do nothing while claiming a great victory over the status quo.

But don’t look for that to appear in most reporting on the NSA.

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Translation Issues Put Zarif’s Remarks Somewhere Between Arak and a Hard Place (Iraq)

On Wednesday night, Iranian Foreign Minister Mohammad Zarif was interviewed by Iranian state television. Reports about what he said in the interview provided quite the adventure yesterday. Here is Reuters this morning trying to sort out just what took place:

On Thursday a story from the official Iranian News Agency (IRNA) cited by several news organizations including Reuters reported Foreign Minister Javad Zarif as saying that if Iran agreed to “do something in Iraq, the other side in the negotiations will need to do something in return”.

“All the sanctions imposed on Iran over its nuclear activities should be lifted in return for its help in Iraq,” it quoted him as saying.

But later on Thursday IRNA reported foreign ministry spokeswoman Marzieh Afkham as dismissing “reports by some news agencies about Iran and U.S. cooperation in Iraq”.

“These reports are a misinterpretation of the foreign ministerˈs remarks and are ‘totally baseless’,” IRNA reported her as saying.

So what did Zarif actually say? Here is PressTV’s translation of the sentence in question:

“If we agree to do certain things at [the nuclear facility in the Iranian city of] Arak, then they should agree to do certain things in return; one of those things would be for them to go to the [UN] Security Council and lift the sanctions,” Zarif stated.

Wow. Arak is the site of the heavy water reactor that has been a point of contention in the nuclear negotiations from the start. If you watch the YouTube above, there is a translation of Zarif’s remarks that does seem to suggest that the context for the remark does not fit at all with a mention of Iraq. A similar translation appears in the video at the PressTV site linked above.

Further clarification of that point comes from a Foreign Ministry spokesperson at FarsNews:

Iranian Foreign Ministry Spokeswoman Marziyeh Afkham categorically dismissed media reports about Tehran’s call on the US to remove the sanctions if it wants the former’s cooperation against ISIL in Iraq.

Afkham’s remarks came as certain foreign media outlets misquoted Iranian Foreign Minister Mohammad Javad Zarif as saying that Iran is ready to cooperate with the US in Iraq in return for lifting UN sanctions against Iran.

“These reports are a misinterpretation of Foreign Minister’s remarks and are totally baseless,” Afkham said on Thursday.

The Iranian foreign minister had called on the US to remove its unilateral sanctions against Iran in order to pave the way for Iran’s further cooperation with the West on nuclear issues, including Arak heavy water facility.

Several western news agencies, including AFP and Reuters, misquoted Zarif’s comments by substituting the word “Iraq” for “Arak”, which the foreign minister had actually used. The incorrect quote attributed to Zarif implied that Iran has conditioned its readiness to help tackle the Takfiri Islamic State of Iraq and the Levant (ISIL) terrorists in Iraq on the removal of the sanctions imposed on Iran by the West.

The State Department seems to have figured out the error quickly.  From yesterday’s press briefing: Continue reading

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NSA’s Lawyers Missed “Virtually Every Record” over 25 Reviews

As I’ve written before, the Internet dragnet did not get through the its first 90 day Primary Order before it violated the rules laid out by the FISA Court. In an effort to convince Judge Kollar-Kotelly they could conduct the dragnet according to her orders, NSA’s Office of General Counsel agreed to do spot checks of the data twice every 90-day authorization. That requirement stayed in place for the rest of the dragnet.

Which means between 2004 and 2009, OGC should have conducted over 25 spot checks of the data NSA obtained under the program.

And yet, in that entire time, OGC somehow never noticed that “virtually every record” NSA was taking in included data that it was not authorized to collect.

That’s one of the two crazy things about the Internet dragnet that this month’s document dump made clear. I explain them in this piece at The Week. The other is that, in an end-to-end report conducted from roughly March through September of 2009, NSA also didn’t find that virtually every record they had collected had broken the law.

Exhibit A is a comprehensive end-to-end report that the NSA conducted in late summer or early fall of 2009, which focused on the work the agency did in metadata collection and analysis to try and identify people emailing terrorist suspects.

The report described a number of violations that the NSA had cleaned up since the beginning of that year — including using automatic alerts that had not been authorized and giving the FBI and CIA direct access to a database of query results. It concluded the internet dragnet was in pretty good shape. “NSA has taken significant steps designed to eliminate the possibility of any future compliance issues,” the last line of the report read, “and to ensure that mechanisms are in place to detect and respond quickly if any were to occur.”

But just weeks later, the Department of Justice informed the FISA Court, which oversees the NSA program, that the NSA had been collecting impermissible categories of data — potentially including content — for all five years of the program’s existence.

[snip]

Judge John Bates, then head of FISC, emphasized that the NSA had missed the unauthorized data in its comprehensive report. He noted “the extraordinary fact that NSA’s end-to-end review overlooked unauthorized acquisitions that were documented in virtually every record of what was acquired.” Bates went on, “[I]t must be added that those responsible for conducting oversight at NSA failed to do so effectively.”

Nevertheless, Bates went on to vastly expand the program.

No wonder James Clapper’s office made those documents so hard to read. There is no way to read them and believe the NSA can be trusted to stay within the law.

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The Truth Missing from Alexander Joel’s “Truth” about EO 12333

Over at Salon, I’ve got a piece responding to Office of Director of National Intelligence Civil Liberties Officer Alexander Joel’s column purporting to describe the “truth” about EO 12333.

Click through to see this part of my argument:

  • Joel resorts to the tired old “target” jargon
  • Joel points to PPD 28, which rather than supporting his point, actually shows how broadly the NSA uses bulk collection and therefore how meaningless that “target” jargon is
  • Joel doesn’t address one of John Napier Tye’s points — that current technology allows the NSA to collect US person data overseas
  • We know they’re doing that in the SPCMA — the Internet dragnet authority conducted on Internet data collected overseas

But it’s Joel’s claim about oversight I find most problematic.

Oversight is extensive and multi-layered. Executive branch oversight is provided internally at the NSA and by both the Department of Defense and the Office of the DNI by agency inspectors general, general counsels, compliance officers and privacy officers (including my office and the NSA’s new Civil Liberties and Privacy Office). The Department of Justice also provides oversight, as do the Privacy and Civil Liberties Oversight Board and the president’s Intelligence Oversight Board. In addition, Congress has the power to oversee, authorize and fund these activities.

As I note in my piece, really what we have is single branch oversight. And that’s not going to prevent abusive spying.

Joel’s claim,”Oversight [of EO 12333 collection] is extensive and multi-layered,” rings hollow. He lists 4 oversight positions at 3 Executive branch agencies, then points to 3 more Executive branch agencies he claims have a role. Having the Executive oversee the Executive spying on Americans poses precisely the kind of threat to our democracy Tye raised.

Then Joel claims, “Congress has the power to oversee, authorize and fund these activities.” Of course, that’s different from Congress actually using that power. Moreover, the record suggests Congress may not currently have the power to do anything but defund such spying, assuming they even know about it. Senate Intelligence Committee Chair Dianne Feinstein admitted last August that her committee doesn’t receive adequate information on EO 12333 collection.  Joel’s boss, James Clapper, refused to answer a question from Senator Amy Klobuchar on EO 12333 violations in a hearing in October. And when Senator Mark Udall suggested a “vast trove” of Americans’ communications collected overseas should be provided the protections laid out in FISA, Assistant Attorney General John Carlin explained the National Security Division — the part of DOJ he oversees, which has a central role in oversight under FISA — would not have a role in that case because the collection occurred under EO 12333.

In his column, Joel makes no mention of the third branch of government: the Courts. That’s because, as ACLU’s Patrick Toomey laid out last week, the government doesn’t give defendants any notice if their prosecutions arise from data collected under EO 12333. Criminal prosecutions are where some of the most important oversight on Executive branch spying takes place. By exempting EO 12333 from any such notice, then, the government is bypassing another critical check on potentially abusive spying.

Back in 1978, our government decided that both Congress and the courts should have a role when the Executive branch spied on Americans. That was the entire premise behind the FISA law.  But by moving more and more of its spying overseas, the government can and — apparently, at least to a limited extent — is bypassing the oversight accorded through three branches of government.

FISA was written in 1978, before it became so easy to spy on Americans’ domestic communications overseas. FISA Amendments Act partly addressed the new technological reality — by giving the Executive permission to spy on foreigners domestically. But it provided inadequate protections — Sections 703-5 — in return. Those measures, requiring a Court order for targeting Americans who are themselves overseas (but not for targeting Americans’ data that transits overseas), simply don’t do enough to prevent the government from using this new technological reality from spying on Americans.

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The Government Uses the Dragnets for Detainee Proceedings

In the middle of a discussion of how the NSA let FBI, CIA, and NCTC directly access the database of Internet query results in the report accompanying the Internet dragnet End-to-End report, a footnote describes searches NSA’s litigation support team conducts. (See page 12)

In addition to the above practices, NSA’s litigation support team conducts prudential searches in response to requests from Department of Justice or Department of Defense personnel in connection with criminal or detainee proceedings. The team does not perform queries of the PR/TT metadata. This practice of sharing information derived from PR/TT metadata was later specifically authorized. See Primary Order, Docket Number PR/TT [redacted] at 12-13. The Government respectfully submits that NSA’s historic practice of sharing of U.S. person identifying information in this manner before it was specifically authorized does not constitute non-compliance with the PR/TT Orders.

Keith Alexander’s declaration accompanying the E2E adds more detail. (See page 16)

The designated approving official does not make a determination to release information in response to requests by Department of Justice or Department of Defense personnel in connection with criminal or detainee proceedings. In the case of such requests, NSA’s Litigation Support Team conducts prudential, specific searches of databases that contain both previously disseminated reporting and related analyst notes. The team does not perform queries of the PR/TT metadata. NSA then provides that research to Department of Justice or Department of Defense personnel for their review in connection with criminal or detainee proceedings. This practice of sharing information derived from the PR/TT metadata is now specifically authorized. See Primary Order, Docket Number PR/TT [redacted] at 12-13.

Language approving searches of the corporate store conducted on behalf of DOJ and DOD does not appear (at least not at 12-13) in the early 2009 — probably March 2, 2009 — Internet dragnet primary order. But related language was included in the September 3, 2009 phone dragnet order (it does not appear in the July 8, 2009 phone dragnet order, so that appears to have been the first approval for it). Given the timing, the language might stem either from another notice of violation to the FISC (one the government has redacted thus far); or, it might be a response to recommendations made in the Joint IG Report on the illegal dragnet, which was released July 10, 2009, and which did discuss discovery problems.

But the language describing the Litigation Support Team searches is far less descriptive in the September 3, 2009 phone dragnet order.

Notwithstanding the above requirements, NSA may share information derived from the BR metadata, including U.S. person identifying information, with Executive Branch personnel in order to enable them to determine whether the information contains exculpatory or impeachment information or is otherwise discoverable in legal proceedings.

The E2E and Alexander’s declaration make two things more clear.

First, NSA can disseminate this information without declaring the information is related to counterterrorism (that’s the primary dissemination limitation discussed in this section), and of course, without masking US person information. That would at least permit the possibility this data gets used for non-counterterrorism purposes, but only when it should least be permitted to, for criminal prosecutions of Americans!

Remember, too, the government has explicitly said it uses the phone dragnet to identify potential informants. Having non-counterterrorism data available to coerce cooperation would make that easier.

The E2E and Alexander declaration also reveal that the Litigation Support Team conducts these searches not just for DOJ, but also for DOD on detainee matters.

That troubles me.

According to the NYT’s timeline, only 20 detainees arrived at Gitmo after these dragnets got started, and 14 of those were High Value Detainees who had been stashed elsewhere for years (as were the last batch arrived in 2004). None of the men still detained at Gitmo, at least, had been communicating with anyone outside of very closely monitored situations for years. None of the Internet dragnet data could capture them (because no historical data gets collected). And what phone data might include them — and remember, the phone dragnet was only supposed to include calls with one end in the US — would be very dated.

So what would DOD be using these dragnets for?

Perhaps the detainees in question weren’t Gitmo detainees but Bagram detainees. Plenty of them had been out communicating more recently in 2004 and 2006 and even 2009, and their conversations might have been picked up on an Internet dragnet (though I find it unlikely any were making phone calls to the US).

It’s possible the dragnet was used, in part, to track released detainees. Is dragnet contact chaining one of the things that goes into claims about “recidivist” detainees?

Finally, a more troubling possibility is that detainee attorneys’ contacts with possible witnesses got tracked. Is it possible, for example, that DOD tracked attorneys’ contacts with detainee family members in places like Yemen? Given allegations the government spied on detainees’ lawyers, that’s certainly plausible. Moreover, since NSA does not minimize contacts between attorneys and their client until the client has been indicted, and so few of the Gitmo detainees have been charged, it would be utterly consistent to use the dragnet to track lawyers’ efforts to defend Gitmo detainees. Have the dragnets been focused on attorneys all this time?

One thing is clear. There is not a single known case where DOJ or DOD have used the dragnets to provide exculpatory information to someone; Dzhokhar Tsarnaev was unable to obtain discovery on dragnet information even after the government bragged about using the dragnet in his case.

Nevertheless, NSA has been sharing US person information without even having to attest it is counterterrorism related, outside of all the minimization procedures the government boasts about.

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For John Kerry’s State Department, Constitutions Matter Only on One Side of Durand Line

John Kerry has made not one, but two trips to Afghanistan to pursue his extra-constitutional “power sharing” agreement between Ashraf Ghani and Abdullah Abdullah that creates the completely new position of chief executive within the Afghan government. As was easily predicted, that plan now teeters near total failure. Clearly, Afghanistan’s constitution means nothing to John Kerry in his pursuit of US goals in that country.

In the daily press briefing yesterday at Kerry’s State Department headquarters, spokesperson Marie Harf had this remarkable exchange with a reporter, where we suddenly see that next door, in Pakistan, the constitution is of prime importance*:

QUESTION: One more quickly. What Imran Khan is saying and others in the country, including hundreds of thousands or millions of people in Pakistan, they are not happy with the current government, and Imran Khan is saying that those elections by Prime Minister Nawaz Sharif were fraud and fake and they were not legitimate or he’s calling that he should step down. That’s what I’m asking. I’m saying –

MS. HARF: He’s the prime minister, period.

QUESTION: Thank you.

QUESTION: So you’re not calling for Prime Minister Sharif to step down?

MS. HARF: I in no way am calling on that.

QUESTION: Does the United States support regime change in Pakistan?

MS. HARF: We support the constitutional and electoral process in Pakistan, which produced the Prime Minister of Nawaz Sharif. That was a process they followed, an election they had, and we are focused on working with Pakistan. And we do not support any extra-constitutional changes to that democratic system or people attempting to impose them.

How about that? In Pakistan, the State Department does “not support any extra-constitutional changes to that democratic system or people attempting to impose them”, while just across the border in Afghanistan, the Cabinet member in charge of the State Department is putting a huge amount of his own energy into an extra-constitutional change to the democratic system there.

Just three days ago, Kerry included this snippet in his letter of congratulations to Afghanistan on their independence day:

With millions of Afghans across your great nation braving violence and intimidation to cast their ballots, it is critical that all parties honor those voters’ aspiration for a democratic, peaceful transfer of power that unifies the country. We will continue to strongly support the democratic process and the agreement reached between the two candidates concerning the formation of a national unity government.

So Kerry claims he supports the democratic process and yet he wants it to produce a “national unity government” that is described nowhere in the constitution that enabled the voting. His real aim appears near the end of the letter:

With a timely resolution of the election and the signing of a Bilateral Security Agreement, I am confident that the next year will open an important new era in U.S.-Afghan relations.

For John Kerry, as well as the rest of the US government, it always has been and always will be about keeping those troops going (and those military contracts running).

Postscript: Did you notice the *asterisk above? I felt compelled to add it when I said that for the US, the constitution in Pakistan is of prime importance. There is a huge exception to that statement. The democratically elected government of Pakistan, whose constitutionality Harf is praising in her briefing, means absolutely nothing to the US when the US wishes to carry out a drone strike inside Pakistan’s borders, even when that same democratically elected government has made it clear that such actions are a violation of sovereignty.

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Working Thread, Internet Dragnet 5: The Audacious 2010 Reapplication

At some point (perhaps at the end of 2009, but sometime before this application), the government tried to reapply, but withdrew their application. The three letters below were sent in response to that. But they were submitted with the reapplication.

See also Working Thread 1Working Thread 2Working Thread 3, Working Thread 4, and Internet Dragnet Timeline. No one else is doing this tedious work; if you find it useful, please support it.

U. First Letter in Response to FISC Questions Concerning NSA bulk Metadata Collection Using Pen Register/Trap and Trace Devices,

(15/27) In addition to tagging data itself, the source now gets noted in reports.

(16/27) NSA wanted all analysts to be able to query.

(16/27) COntrary to what redaction seemed to indicate elsewhere, only contact chaining will be permitted.

(17/27) This implies that even technical access creates a record, though not about what they access, just when and who did it.

(17/27) NSA asked for the same RAS timelines as in BRFISA — I think this ends up keeping RAS longer than an initial PRTT order.

(18/27) “Virtually every PR/TT record contains some metadata that was authorized for collection, and some metadata that was not authorized for collection … virtually every PR/TT record contains some data that was not authorized by prior orders and some that was not.”

(21/27) No additional training for internal sharing of emails.

(21/27) Proof they argue everything that comes out of a query is relevant to terrorism:

Results of queries of PR/TT-sourced metadata are inherently germane to the analysis of counterterrorism-related foreign intelligence targets. This is because of NSA’s adherence to the RAS standard as a standard prerequisite for querying PR/TT metadata.

(22/27) Note “relevance” creep used to justify sharing everywhere. I really suspect this was built to authorize the SPCMA dragnet as well.

(23/27) Curious language about the 2nd stage marking: I think it’s meant to suggest that there will be no additional protection once it circulates within the NSA.

(24/27) NSA has claimed they changed to the 5 year age-off in December 2009. Given the question about it I wonder if that’s when these letters were sent?

(24/27) Their logic for switching to USSID-18:

these procedures form the very backbone for virtually all of NSA’s dissemination practices. For this reason, NSA believes a weekly dissemination report is no longer necessary.

(24-5/27) The explanation for getting rid of compliance meetings is not really compelling. Also note that they don’t mention ODNI’s involvement here.

(25/27) “effective compliance and oversight are not performed simply through meetings or spot checks.”

(27/27) “See the attached word and pdf documents provided by OIG on an intended audit of PR/TT prior to the last Order expiring as an example.” Guess this means the audit documents are from that shutdown period.

V. Second Letter in Response to FISC Questions concerning NSA bulk Metadata Collection Using Pen Register/Trap and Trace Devices,

W. Third Letter in Response to FISC Questions Concerning NSA Bulk Metadata Collection Using Pen Register/Trap and Trace Devices.

(2) DNI adopted new serial numbers for reports, so as to be able to recall requests.

(3) THey’re tracking the query reports to see if they can withdraw everything.

(3) THis is another of the places they make it clear they can disseminate law enforcement information without the USSID requirements.

(4) It appears the initial application was longer than the July 2010, given the reference to pages 78-79.

Q: Government’s Application for Use of Pen Register/Trap and Trace Devices for Foreign Intelligence Purposes. (around July 2010)

There are some very interesting comparisons with the early 2009 application, document AA.

(1)  Holder applied directly this time rather than a designee (Holder may not have been confirmed yet for the early 2009 one).

(2) The redacted definition of foreign power in AA was longer.

(3) “collect” w/footnote 3 was redacted in AA.

(3) Takes out reference to “email” metadata.

(3) FN 4 both focuses on “Internet communication” rather than “email [redacted]” as AA did, but it also scopes out content in a nifty way.

Continue reading

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Afghanistan Bars Rosenberg From Leaving Over Times Report on Coup Plan

With the latest deadline for Afghanistan to resolve its election crisis and put into place a government that can sign a Bilateral Security Agreement now only two weeks from tomorrow (when the NATO Summit convenes in Wales), the pressure on Afghan officials is leading to breakdowns on many fronts. Violence continues in the vote recount process and sniping back and forth in the press over outright insurrection is reaching new levels (note in this article that Abdullah supporters are favoring power sharing while Ghani’s side is pushing the constitution, suggesting Ghani feels confident of winning the recount).

Against this uncertain background, Matthew Rosenberg’s story published late Monday on the New York Times website and appearing in Tuesday’s paper (on page A7, not very prominent placement) remarkably led to him being summoned and questioned by the attorney general’s office in Afghanistan. Further, it appears that Rosenberg will not be allowed to leave the country until he answers questions (he has refused so far) regarding the sources for his article.

The article that has upset the attorney general states that various unnamed government figures are floating the idea of an interim government since the election recount is taking so long to resolve. (Note that Hamid Karzai’s term in office already has officially expired.) Although the plan is referred to as a “soft coup”, the idea is that there would be a quick return to democracy. Further, Rosenberg goes to great lengths to point out that the entire exercise seems to be more of a warning to the Abdullah and Ghani camps to resolve things quickly rather than an actual attempt to seize power:

A coterie of powerful Afghan government ministers and officials with strong ties to the security forces are threatening to seize power if an election impasse that has paralyzed the country is not resolved soon.

Though it is unusual to telegraph plans for what could amount to a coup — though no one is calling it that — the officials all stressed that they hoped the mere threat of forming an interim government would persuade the country’s rival presidential candidates, Abdullah Abdullah and Ashraf Ghani, to make the compromises needed to end the crisis.

The Times describes Rosenberg’s treatment during the questioning:

The senior prosecutor who summoned Mr. Rosenberg, Gen. Sayed Noorullah Sadat, whose title is general director of crimes against external and internal security, asked him to identify anonymous government sources quoted in the article, which he declined to do.

Mr. Rosenberg objected to General Sadat’s insistence that he sign a statement without a lawyer present. Mr. Rosenberg then asked to leave the interrogation room and was initially refused permission to do so, until the prosecutors conferred with a higher-ranking official.

They declined to name that official. “It’s a confidential source,” said another general who was present at the interrogation. He declined to give his own name as well, but was later identified as Gen. Abdul Salem Ismat, who works in General Sadat’s directorate. (Although the attorney general’s office is a civilian agency, some officials retain the ranks they gained in police or military agencies.)

The attorney general’s office is on very shaky ground here:

During the interrogation on Tuesday, General Sadat was unable to name any criminal offense that was under investigation, or cite any laws that had been broken.

“Right now, there’s no case, no legal charges, there’s nothing,” he said. But he did not rule out the possibility of charges in the future.

The State Department criticized the Afghanistan government’s actions.

Hmm. No offense under investigation, no law broken, no case, no charges, and yet Rosenberg was brought in. I’m guessing the State Department criticism was something along the lines of “Who do you think you are, Ferguson?” At least he wasn’t teargassed.

Update: Just after this was posted, it was announced that Rosenberg has now been expelled from Afghanistan:

The attorney general of Afghanistan on Wednesday ordered the expulsion of an American correspondent for The New York Times, Matthew Rosenberg, and banned him from re-entering the country.

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Holder’s Agency in Ferguson

Eric Holder just published an op-ed in the St. Louis Post Dispatch, apparently aiming to generate confidence in DOJ’s investigation into Darren Wilson’s killing of Mike Brown.

It starts with 3 sentences describing Brown’s killing — with no mention of Wilson, or even that a cop killed Brown.

Since the Aug. 9 shooting death of Michael Brown, the nation and the world have witnessed the unrest that has gripped Ferguson, Mo. At the core of these demonstrations is a demand for answers about the circumstances of this young man’s death and a broader concern about the state of our criminal justice system.

At a time when so much may seem uncertain, the people of Ferguson can have confidence that the Justice Department intends to learn — in a fair and thorough manner — exactly what happened.

A disembodied shooting killed Brown in this telling; violence did not.

Holder then spends several paragraphs discussing both the investigation itself, as well as the actions of the Civil Rights Division before he turns – in the course of one paragraph — to the protests. Here, violence is described as violence.

We understand the need for an independent investigation, and we hope that the independence and thoroughness of our investigation will bring some measure of calm to the tensions in Ferguson. In order to begin the healing process, however, we must first see an end to the acts of violence in the streets of Ferguson. Although these acts have been committed by a very small minority — and, in many cases, by individuals from outside Ferguson — they seriously undermine, rather than advance, the cause of justice. And they interrupt the deeper conversation that the legitimate demonstrators are trying to advance.

The implication, of course, is that the violence comes exclusively from that “very small minority,” not the cops shooting rubber bullets from their tanks.

I find the next paragraph truly remarkable.

The Justice Department will defend the right of protesters to peacefully demonstrate and for the media to cover a story that must be told. But violence cannot be condoned. I urge the citizens of Ferguson who have been peacefully exercising their First Amendment rights to join with law enforcement in condemning the actions of looters, vandals and others seeking to inflame tensions and sow discord.

The Justice Department — the Agency Eric Holder leads, the 40 FBI Agents and Civil Rights prosecutors Holder described — has done nothing visible thus far to defend the First Amendment.

And then, Holder says, “violence cannot be condoned.” A bizarre passive sentence with no agent. By whom? Who cannot condone violence?!?!

And he uses it to urge “the citizens of Ferguson who have been peacefully exercising their First Amendment rights” — many of whom have been arrested, bullied, tear gassed, some of whom have formed chains to protect businesses — to “join with law enforcement,” the same law enforcement  that has been bullying them. Holder asks these citizens — who presumably are the ones he says cannot condone violence — to join the cops who have been engaging in violence to condemn others who have also been engaging in violence. Those “others” inflame tensions and sow discord. The cops don’t, according to this telling.

It takes a good paragraph and a half before Holder says the cops must restore trust. Only unlike the “citizens” of Ferguson, Holder does not urge the cops directly to do … anything. He just describes what should happen, he doesn’t command it to happen.

At the same time, good law enforcement requires forging bonds of trust between the police and the public. This trust is all-important, but it is also fragile. It requires that force be used in appropriate ways. Enforcement priorities and arrest patterns must not lead to disparate treatment under the law, even if such treatment is unintended. And police forces should reflect the diversity of the communities they serve.

Note what else happens? That violence — unmentioned in Mike Brown’s actual shooting, but explicitly described when “those others” did it — here becomes “force.” Something distinct from the violence of looters.

Darren Wilson’s shooting of Mike Brown? Not described as violence — not even described as the act of a known man. The looters’ looting? They’re engaged in “violence.” And finally, the cops, whom Holder doesn’t dare urge to tone things down? They are exercising “force,” not “violence.”

I get there are legal reasons why he did this — notably, this permits him to endorse findings that Wilson used “force” out of fear for his own safety! But the grammar and vocabulary of this op-ed insists on the state’s monopoly on violence that it has been abusing for 10 days.

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How Abu Zubaydah’s Torture Put CIA and FBI in NSA’s Databases

I said yesterday that the plan, going as far back as 2002, was to let CIA and FBI tap right into NSA’s data. I base that on this explanation from Keith Alexander, which he included in his declaration accompanying the End to End Report that was submitted sometime after October 30, 2009.

By the fall of 2002, the Intelligence Community had grown increasingly concerned about the potential for further attacks on the United States. For example, during 10 to 24 September 2002, the Government raised the homeland security threat condition to “orange,” indicating a high likelihood of attack. In this context, in October 2002 the Directors of NSA, CIA, and FBI established an Inter-Agency Review Group to examine information sharing [redacted] The group’s top recommendation was that NSA create a common target knowledge database to allow joint research and information exchanges [redacted].

Of course, we now know that the threat level was high in September 2002 because the government was chasing down a bunch of false leads from Abu Zubaydah’s torture.

Abu Zubaida’s revelations triggered a series of alerts and sent hundreds of CIA and FBI investigators scurrying in pursuit of phantoms. The interrogations led directly to the arrest of Jose Padilla, the man Abu Zubaida identified as heading an effort to explode a radiological “dirty bomb” in an American city. Padilla was held in a naval brig for 3 1/2 years on the allegation but was never charged in any such plot. Every other lead ultimately dissolved into smoke and shadow, according to high-ranking former U.S. officials with access to classified reports.

“We spent millions of dollars chasing false alarms,” one former intelligence official said.

In other words, the justification for creating a database where CIA and FBI could directly access much of NSA’s data was a mirage, one created by CIA’s own torture.

All that’s separate from the question of whether CIA and FBI should have access directly to NSA’s data. Perhaps it makes us more responsive. Perhaps it perpetuates this process of chasing ghosts. That’s a debate we should have based on actual results, not the tortured false confessions of a decade past.

But it’s a testament to two things: the way in which torture created the illusion of danger, and the degree to which torture — and threat claims based on it — have secretly served as the basis the Executive uses to demand the FISA Court permit it to extend the dragnet.

Even the current CIA Director has admitted this to be true — though without explicitly laying out the import of it. Isn’t it time we start acknowledging this — and reassessing the civil liberties damage done because of it — rather than keeping it hidden under redactions?

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Emptywheel Twitterverse

bmaz .@MonaHol No, it is not a sex crime, and that is an asinine headline for @Forbes to run. http://t.co/ecj9xtScVy
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JimWhiteGNV @cocktailhag Heh. And now that #Rays won, I'm putting another clear coat on door number two.
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JimWhiteGNV RT @cocktailhag: @JimWhiteGNV Not as satisfying as refinishing, I expect.
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JimWhiteGNV Heading outside to shovel horse shit in 93F heat. Much more pleasant than watching Balfour pitch 10th for #Rays.
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JimWhiteGNV RT @AntonioFrench: Organizers say today's planned protest involving halting highway traffic has been postponed at the request of the Brown …
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bmaz @kellyoxford @LegallyErin It is a crime, yes, absolutely. Sex crime...uh, no, it is not.
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bmaz RT @DanCBarr: @bmaz They will probably rule quickly. Reinhardt wrote Perry and Smith-Kline. Berzon joined in Smith-Kline. Gould wrote Witt.…
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JimWhiteGNV “@TBTimes_Rays: Good play by #Rays Longoria on bad throw by Hanigan to catch Bogaerts stealing 3B” Cartwheel tag.
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bmaz @etb714 @wellsbennett Okay, that is an awesomely cute picture.
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JimWhiteGNV RT @JohnHorneUK: This award winning pic was taken in #Bahrain in Feb 2011. In July 2014 the photographer was arrestd & tortured for it http…
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bmaz @DanCBarr Agree. I'm just still disappointed in Reinhardt's Romer based watered down Perry decision. Hope they get this decision out quickly
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