After Acid Attacks on Women, Rouhani Speaks Out Against “Discord” “Under the Flag of Islam”

In the historic  city of Isfahan in Iran yesterday, several thousand protesters gathered in front of the judiciary building and shouted slogans against assailants who have thrown acid on a number of women in recent weeks. Even though a spokesman for the Iranian judiciary announced Monday that four attackers had been arrested and that the harshest possible punishment will be handed out, the protesters appeared to feel that not enough is being done.

The Guardian describes the situation that led to the protests:

Assailants riding on motorbikes, in a similar sequence of events, have thrown acid in the face of at least eight women who were driving in the street with their windows pulled down. Local media say the number of victims could be higher. The attacks have so far claimed one life, an opposition website said.

Many Iranians believe that victims were targeted because they were women wearing clothes that could be deemed inappropriate in the eyes of hardliners – a claim vehemently denied by the authorities.

Isfahani citizens, horrified by the scale of vicious assaults, gathered in front of the city’s justice department on Wednesday, calling on the authorities to put an end to the crimes which has highlighted the striking challenges women face in Iran, where hijab is obligatory.

A number of protesters in Isfahan chanted slogans that described the attackers as Iran’s own version of Isis, the extremist group that has committed many atrocities in Iraq and Syria.

A number of videos of the protest appear to exist. Interestingly, they appear to be from Iranian opposition groups. One of the groups also put up some photos from the protest.

Somehow, I suspect that these opposition groups will be very unhappy with Thomas Erdbrink’s coverage of the protest, though. Erdbrink notes that the protest appears to have been organized through social media, which may be a hint that he thinks the opposition groups helped to organize it. The opposition groups would go along with Erdbrink’s coverage of a proposed new law at the heart of the controversy:

The acid attacks have prompted a heightened resistance to the new law, which Parliament passed on Sunday. The law is aimed at protecting citizens who feel compelled to correct those who, in their view, do not adhere to Iran’s strict social laws. The details of the law, which would officially empower the government and private citizens to give verbal or written statements on social mores, have yet to be completed.

While strict rules on dress, alcohol, sexual relations and much more are not new, the law is aimed at defining crimes against propriety or decency, which in the past would often be corrected informally. In Iran, where most people live in cities and many are highly educated, conservatives are trying to avert changes in attitudes by enforcing traditions.

But Erdbrink points out that Hassan Rouhani spoke out very forcefully against the law, providing a stark contrast to the image the opposition paints of him going along with harsh punishment meted out by conservatives:

President Hassan Rouhani strongly criticized the new law on Wednesday, saying that he feared it would divide society because, as many observers have pointed out, in reality it offers the country’s small but influential faction of hard-liners more power.

“The sacred call to virtue is not the right of a select group of people, a handful taking the moral high ground and acting as guardians,” Mr. Rouhani said during a trip to the provincial city of Zanjan. “It is upon all Muslims to exhort love, respect for others and human dignity.”

“May such a day never come that some lead our society down the path to insecurity, sow discord and cause divisions, all under the flag of Islam,” he said, his voice shaking with emotion.

What a powerful statement. Imagine if Barack Obama said “May such a day never come that some lead our society down the path to insecurity, sow discord and cause divisions, all under the flag of Christianity”. And imagine if he said it with a voice shaking with emotion.

Sadly, both Iran and the United States have already reached that point where religious conservatives have caused insecurity, sown discord and caused divisions. And that is what makes Rouhani’s statement so dangerously courageous and prevents Obama from ever contemplating doing the same.

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No, Obama Doesn’t Need Legislation to Fix the Dragnet–Unless the “Fix” Isn’t One

In an editorial calling on Congress to pass the USA Freedom Act, the USA Today makes this claim.

Obama’s proposal last January — to leave the data with phone companies, instead of with the government — can’t happen without a new law. And, as in so many other areas, the deeply divided Congress has failed to produce one.

I don’t know whether that is or is not the case.

I do know 3 Senate Intelligence Committee members say it is not the case.

Ron Wyden, Mark Udall, and Martin Heinrich wrote Obama a letter making just this point in June. They argued that Obama could accomplish most, if not all, of what he claimed he wanted without legislation, largely with a combination of Section 215 Orders to get hops and Pen Registers to get prospective collection.

[W]e believe that, in the meantime, the government already has sufficient authorities today to implement most, if not all, of the Section 215 reforms laid out in your proposal without delay in a way that does not harm our national security. More comprehensive congressional action is vital, but the executive branch need not wait for Congress to end the dragnet collection of millions of Americans’ phone records for a number of reasons.

First, we believe that the Foreign Intelligence Surveillance Court’s (FISC) expansive interpretation of the USA PATRIOT Act to allow the collection of millions of Americans’ phone records makes it likely that the FISC would also agree to a more narrowly-drawn interpretation of the law, without requiring further congressional action. Certainly, it seems likely that the FISC would permit the executive branch to use its current authorities to obtain phone records up to two “hops” from a suspicious phone number or to compel technical assistance by and compensation for recipients of court orders. Unless the FISC has already rejected such a request from the government, it does not seem necessary for the executive branch to wait for Congress before taking action.

Second, we believe that the FISC would likely approve the defined and limited prospective searches for records envisioned under your proposal pursuant to current USA PATRIOT Act Section 214 pen register authorities, given how broadly it has previous interpreted these authorities. Again, we believe it is vital for Congress to enact reforms, but we also believe that the government has sufficient authorities today under the USA PATRIOT Act to conduct these targeted prospective searches in the interim.

Finally, although we have seen no evidence that the government has needed the bulk phone records collection program to attain any time-sensitive objectives, we agree that new legislation should provide clear emergency authorities to allow the government to obtain court approval of individual queries after the fact under specific circumstances. The law currently allows prospective emergency acquisitions of call records under Section 403 of the Foreign Intelligence Surveillance Act (FISA), and the acquisition of past records without judicial review under national security letter authorities. While utilizing a patchwork of authorities is not ideal, it could be done on an interim basis, while Congress works to pass legislation.

Just weeks before they sent this, Deputy Attorney General James Cole had seemed to say they could (if not already were) getting hybrid orders, in that case mixing phone and location. So it seems like DOJ is confident they could use such hybrid orders, using Section 215 for the hops and Pen Registers for the prospective collection (though, given that they’re already using Section 215 for prospective collection, I’m not sure why they’d need to use hybrids to get anything but emergency orders).

And it makes sense. After all, the public claims about what the Call Detail Record provision would do, at least, describe it as a kind of Pen Register on steroids, 2-degrees of Pen Register. As the Senators suggest, FBI already gets two-degree information of historical records with mere NSLs, so it’d be surprising if they couldn’t get 2 degrees prospectively with a court order.

So at least according to three members of the Senate Intelligence Committee, USA Today is simply wrong.

Mind you, I’m not entirely convinced they’re right.

That’s because I suspect the new CDR provision is more than a Pen Register on steroids, is instead something far more intrusive, one that gets far beyond mere call records. I suspect the government will ask the telecoms to chain on location, address books, and more — as they do overseas — which would require far more than a prospective Pen Register and likely would require super immunity, as the bill provides.

I suspect the Senators are wrong, but if they are, it’s because Obama (or his Intelligence Community) wants something that is far more invasive then they’ve made out.

Still, for USAF supporters, there seems no question. If all Obama wants to replace the phone dragnet is prospective 2-degree call (not connection) chaining on RAS targets, he almost certainly has that authority.

But if he needs more authority, then chances are very good he’s asking for something far more than he has let on.

Update: Note, USAT makes at least one other clear error in this piece, as where it suggests the “the program” — the phone dragnet — imposes costs on cloud companies like Microsoft and Google.

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Plane Meets Plow: The Curious End of Total S.A. CEO Christophe de Margerie

[Photo tweeted by @Enel_Aire, post time stamped 2014-10-21 at 09:45 (time zone unknown)]

[Photo tweeted by @Enel_Aire, post time stamped 2014-10-21 at 09:45 (time zone unknown)]

Forgive my skepticism about the accident Monday night that took the life of Christophe de Margerie. CEO of French oil and gas company Total S.A. We’ve been told by enough analysts that several target countries, including Russia, are under siege, though these experts don’t refer to this openly as asymmetric warfare. The recent and ongoing drop in petroleum prices threatens cash inflows to those countries whose economies rely on oil revenues — Russia and Iran among them. The death of an oil industry executive isn’t unexpected given the amount of money in play; people die daily for far less cash.

Not as much as Moscow, mind you, but we get snow where I live in flyover country USA. Any time between mid-October and mid-April we can expect some frozen precipitation. A blizzard in October isn’t unheard of — we had one 17 years ago this week, in fact. I’ve lived with six months of snow per year for most of my life.

Which is why the photo here of the crash site looks sketchy to me.

Early reports indicated the plane carrying de Margerie hit or was hit by a snowplow driven by a drunken operator, in poor visibility. It’s not clear exactly which hit the other based on different accounts across the internet. A Russian reconstruction video furnished to Le Figaro shows the plane’s wing clipping a vehicle upon landing — but the video exerts more effort on the fire and smoke than it does on the initial impact. Note in this second video of the plane after the crash during daylight hours that the wing which hit the plow as characterized in the video is missing.

At least one article claimed debris was spread 200 meters by the plane after impact. Perhaps the wing was in that debris, but it’s not reflected in the Russian reconstruction video. A more recent report said the snowplow was parked on the runway.

Ultimately, what we see is a plane that flipped over — either tipped over by the force of a plow, or flipped over after impact.

And no snow. This particular photo is rather pixelated, but it doesn’t reflect reduced visibility due to snowfall. There’s no snow in the second video link above, though visibility has worsened. Continue reading

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New CDC Hospital Ebola Guidelines Fall Short of WHO Guidance on Personnel Flow

I’m either a lone voice in the wilderness or just another angry old man shouting at clouds on this, but, to me, the issue of personnel flow inside a facility treating a patient for Ebola is critical. Texas Health Presbyterian Dallas got that issue terribly wrong in the case of Thomas Duncan, and now, although they provide very good guidance on the issue of personal protective equipment and its use, new guidelines just released by CDC sadly fall short of correcting the problem I have highlighted.

The issue is simple and can even be explained on a semantic level. If a patient is being treated in an isolation ward, that isolation should apply not only to the patient but also to the staff caring for the patient. As I explained previously, National Nurses United complained that health care workers at Texas Health Presbyterian Dallas treated Duncan and then continued “taking care of other patients”.

Allowing care providers to go back to treating the general patient population after caring for an isolated patient is in direct contradiction to one of the basic recommendations by WHO in a document (pdf) providing guidance for treatment of  hemorrhagic fever (HF, includes Ebola):

Exclusively assign clinical and non-clinical personnel to HF patient care areas.

By exclusively assigning personnel to care of the isolated patient, then the isolation is more complete.

The new CDC guidelines, released on Monday, offer updated recommendations on the types of personal protective equipment (PPE) to be used and how it is to be used. The guidelines also stress the importance of training on effective PPE use prior to beginning treatment of an Ebola patient. Unfortunately, though, the guidelines still leave open the possibility of health care workers moving between the isolation area and the general patient population.

In the preparations before treatment of an Ebola patient commences, the guidelines state:

Identify critical patient care functions and essential healthcare workers for care of Ebola patients, for collection of laboratory specimens, and for management of the environment and waste ahead of time.

And then once treatment begins, we have this:

Identify and isolate the Ebola patient in a single patient room with a closed door and a private bathroom as soon as possible.

Limit the number of healthcare workers who come into contact with the Ebola patient (e.g., avoid short shifts), and restrict non-essential personnel and visitors from the patient care area.

So the facility is advised to identify the “essential” workers who will provide care to an Ebola patient and to limit the number of personnel coming into contact with the patient. And even though the patient is to be in an isolated room, the guidelines still fall short of the WHO measure of calling for the Ebola treatment staff to be exclusively assigned. Precautions for safely removing the PPE are described, but once removed, the workers presumably are free to go back to mixing with the general patient population. Hospitals are cautioned against allowing large numbers of care providers into the room and to avoid “short shifts”, but there still is no recommendation for workers to be exclusively assigned to the isolation area.

The first thing that comes to mind in this regard is to question whether the CDC recommendations fall short of the WHO call for exclusive assignment in order to allow US hospitals avoid the perceived expense of dedicating a handful of personnel to treatment of a single patient. Is the ever-constant push to reduce personnel costs responsible for this difference between CDC and WHO guidelines? In the US healthcare system, it appears once again that MBA’s can carry more weight than MD’s on critical issues.

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Another Attorney-Client Conversation Spied On

Last month, I laid out the several attorney client conversations to which Raez Qadir Khan was party that the government wiretapped. Among the 7 privileged conversations wiretapped by the government was a January 2010 conversation he had with his immigration attorney after being told by the FBI he could not travel to see his family.

One of the defendants in a key CO terrorism case just revealed in a filing that he, too, was wiretapped when conversing with his immigration attorney’s office.

Bakhtiyor Jumaev, who through co-defendant Jamshid Muhtorov was the first to get notice his prosecution stemmed from FISA Amendments Act collection, revealed in a filing that a conversation he had with his retained immigration counsel’s paralegal was recorded even after the FBI had first questioned him.

FBI agents interrogated Mr. Jumaev at his Philadelphia apartment on February 14, 2012; at that time, Mr. Jumaev had been charged with an immigration violation, had posted bond that included electronic monitoring, was represented by an immigration attorney, Francois Mazur, Esq., and for approximately two years, unbeknownst to him, had also been under investigation for activities related to this case.15 The next day, February 15, 2012, Mr. Jumaev called Mr. Mazur and spoke with the attorney’s paralegal, seeking legal advice relating to Mr. Jumaev’s having been questioned the day prior by the FBI. A copy of the recording of the call, labeled as S2675971321_20120215194017_416.WAV, has been provided in discovery.16

15 The criminal Complaint filed against Mr. Jumaev notes that the FBI had been investigating him in this matter since shortly after his arrest in February 2010 for immigration charges. See Doc. 1 at ¶ 13.

16 Based upon information and belief, to date, the government has not provided all of Mr. Jumaev’s intercepted communications. It is therefore currently unknown whether other communications between Mr. Jumaev and his immigration attorney were intercepted.

As the footnotes make clear, at this point the FBI had already been investigating him for years, but didn’t have the caution to avoid recording his conversations with his immigration attorney (something which, in the Khan case, the government admitted should have been treated as a privileged conversation).

Call me crazy, but this is beginning to look like a pattern — the FBI wiretapping the earliest privileged conversations after their targets get alerted to the FBI investigation into them.

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Maybe NSA “Moonlighting” Is Another Name for “Public-Private Partnership”?

As you’ve likely read, NSA’s Chief Technology Officer has so little to keep him busy he’s also planning on working 20 hours a week for Keith Alexander’s new boondoggle.

Under the arrangement, which was confirmed by Alexander and current intelligence officials, NSA’s Chief Technical Officer, Patrick Dowd, is allowed to work up to 20 hours a week at IronNet Cybersecurity Inc, the private firm led by Alexander, a retired Army general and his former boss.

The arrangement was approved by top NSA managers, current and former officials said. It does not appear to break any laws and it could not be determined whether Dowd has actually begun working for Alexander, who retired from the NSA in March.

Dowd is the guy with whom Alexander filed 7 patents for work developed at NSA.

During his time at the NSA, Alexander said he filed seven patents, four of which are still pending, that relate to an “end-to-end cybersecurity solution.” Alexander said his co-inventor on the patents was Patrick Dowd, the chief technical officer and chief architect of the NSA. Alexander said the patented solution, which he wouldn’t describe in detail given the sensitive nature of the work, involved “a line of thought about how you’d systematically do cybersecurity in a network.”

That sounds hard to distinguish from Alexander’s new venture. But, he insisted, the behavior modeling and other key characteristics represent a fundamentally new approach that will “jump” ahead of the technology that’s now being used in government and in the private sector.

Presumably, bringing Dowd on board will both make Alexander look more technologically credible and let Dowd profit off all the new patents Alexander is filing for, which he claims don’t derive from work taxpayers paid for.

Capitalism, baby! Privatizing the profits paid for by the public!

All that said, I’m wondering whether this is about something else — and not just greed.

Yesterday, as part of a bankster cybersecurity shindig, one of Alexander’s big named clients, SIFMA, rolled out its “Cybersecurity Regulatory Guidance.” It’s about what you’d expect from a bankster organization: demands that the government give what it needs, use a uniform light hand while regulating, show some flexibility in case that light hand becomes onerous, and never ever hold the financial industry accountable for its own shortcomings.

Bullet point 2 (Bullet point 1 basically says the US government has a big role to play here which may be true but also sounds like a demand for a handout) lays out the kind of public-private partnership SIFMA expects.

Principle 2: Recognize the Value of Public–Private Collaboration in the Development of Agency Guidance

Each party brings knowledge and influence that is required to be successful, and each has a role in making protections effective. Firms can assist regulators in making agency guidance better and more effective as it is in everyone’s best interests to protect the financial industry and the customers it serves.

The NIST Cybersecurity Framework is a useful model of public-private cooperation that should guide the development of agency guidance. NIST has done a tremendous job reaching out to stakeholders and strengthening collaboration with financial critical infrastructure. It is through such collaboration that voluntary standards for cybersecurity can be developed. NIST has raised awareness about the standards, encouraged its use, assisted the financial sector in refining its application to financial critical infrastructure components, and incorporated feedback from members of the financial sector.

In this vein, we suggest that an agency working group be established that can facilitate coordination across the agencies, including independent agencies and SROs, and receive industry feedback on suggested approaches to cybersecurity. SIFMA views the improvement of cybersecurity regulatory guidance and industry improvement efforts as an ongoing process.

Effective collaboration between the private and public sectors is critical today and in the future as the threat and the sector’s capabilities continue to evolve.

Again, this public-private partnership may be necessary in the case of cybersecurity for critical infrastructure, but banks have a history of treating such partnership as lucrative handouts (and the principle document’s concern about privacy has more to do with hiding their own deeds, and only secondarily discusses the trust of their customers). Moreover, experience suggests that when “firms assist regulators in making agency guidance better,” it usually has to do with socializing risk.

In any case, given that the banks are, once again, demanding socialism to protect themselves, is it any wonder NSA’s top technology officer is spending half his days at a boondoggle serving these banks?

And given the last decade of impunity the banks have enjoyed, what better place to roll out an exotic counter-attacking cybersecurity approach (except for the risk that it’ll bring down the fragile house of finance cards by mistake)?

Alexander said that his new approach is different than anything that’s been done before because it uses “behavioral models” to help predict what a hacker is likely to do. Rather than relying on analysis of malicious software to try to catch a hacker in the act, Alexander aims to spot them early on in their plots.

One of the most recent stories on the JP Morgan hack (which actually appears to be the kind of Treasuremapping NSA does of other country’s critical infrastructure all the time) made it clear the banksters are already doing the kind of data sharing that Keith Alexander wailed he needed immunity to encourage.

The F.B.I., after being contacted by JPMorgan, took the I.P. addresses the hackers were believed to have used to breach JPMorgan’s system to other financial institutions, including Deutsche Bank and Bank of America, these people said. The purpose: to see whether the same intruders had tried to hack into their systems as well. The banks are also sharing information among themselves.

So clearly SIFMA’s call for sharing represents something more, probably akin to the kind of socialism it benefits from in its members’ core business models.

In the intelligence world, they use the term “sheep dip” to describe how they stick people subject to one authority — such as the SEALs who killed Osama bin Laden — under a more convenient authority — such as CIA’s covert status. Maybe that’s what’s really going on here: sheep dipping NSA’s top tech person into the private sector where his work will evade even the scant oversight given to NSA.

If SIFMA’s looking for the kind of socialistic sharing akin to free money, then why should we be surprised the boondoggle at the center of it plans to share actual tech personnel?

Update: Reuters reports the deal’s off. Apparently even Congress (beyond Alan Grayson, who has long had questions about Alexander’s boondoggle) had a problem with this.

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FISCR Used an Outdated Version of EO 12333 to Rule Protect America Act Legal

If the documents relating to Yahoo’s challenge of Protect America Act released last month are accurate reflections of the documents actually submitted to the FISC and FISCR, then the government submitted a misleading document on June 5, 2008 that was central to FISCR’s ultimate ruling.

As I laid out here in 2009, FISCR relied on the the requirement  in EO 12333 that the Attorney General determine there is probable cause a wiretapping technique used in the US is directed against a foreign power to judge the Protect America Act met probable cause requirements.

The procedures incorporated through section 2.5 of Executive Order 12333, made applicable to the surveillances through the certifications and directives, serve to allay the probable cause concern.

The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power.

44 Fed. Reg. at 59,951 (emphasis supplied). Thus, in order for the government to act upon the certifications, the AG first had to make a determination that probable cause existed to believe that the targeted person is a foreign power or an agent of a foreign power. Moreover, this determination was not made in a vacuum. The AG’s decision was informed by the contents of an application made pursuant to Department of Defense (DOD) regulations. See DOD, Procedures Governing the Activities of DOD Intelligence Components that Affect United States Persons, DOD 5240.1-R, Proc. 5, Pt. 2.C.  (Dec. 1982).

Yahoo didn’t buy this argument. It had a number of problems with it, notably that nothing prevented the government from changing Executive Orders.

While Executive Order 12333 (if not repealed), provides some additional protections, it is still not enough.

[snip]

Thus, to the extent that it is even appropriate to examine the protections in the Executive Order that are not statutorily required, the scales of the reasonableness determination sway but do not tip towards reasonableness.

Yahoo made that argument on May 29, 2008.

Sadly, Yahoo appears not to have noticed the best argument that Courts shouldn’t rely on EO 12333 because the President could always change it: Sheldon Whitehouse’s revelation on December 7, 2007 (right in the middle of this litigation) that OLC had ruled the President could change it in secret and not note the change publicly. Whitehouse strongly suggested that the Executive in fact had changed EO 12333 without notice to accommodate its illegal wiretap program.

But the government appears to have intentionally withheld further evidence about how easily it could change EO 12333 — and in fact had, right in the middle of the litigation.

This is the copy of the Classified Annex to EO 12333 that (at least according to the ODNI release) the government submitted to FISCR in a classified appendix on June 5, 2008 (that is, after Yahoo had already argued that an EO, and the protections it affords, might change). It is a copy of the original Classified Appendix signed by Ed Meese in 1988.

As I have shown, Michael Hayden modified NSA/CSS Policy 1-23 on March 11, 2004, which includes and incorporates EO 12333, the day after the hospital confrontation. The content of the Classified Annex released in 2013 appears to be identical, in its unredacted bits, to the original as released in 1988 (see below for a list of the different things redacted in each version). So the actual content of what the government presented may (or may not be) a faithful representation of the Classified Appendix as it currently existed.

But the version of NSA/CSS Policy 1-23 released last year (starting at page 110) provides this modification history:

This Policy 1-23 supersedes Directive 10-30, dated 20 September 1990, and Change One thereto, dated June 1998. The Associate Director for Policy endorsed an administrative update, effective 27 December 2007 to make minor adjustments to this policy. This 29 May 2009 administrative update includes changes due to the FISA Amendments Act of 2008 and in core training requirements.

That is, Michael Hayden’s March 11, 2004 modification of the Policy changed to the Directive as existed before 2 changes made under Clinton.

Just as importantly, the modification history reflects “an administrative update” making “minor adjustments to this policy” effective December 27, 2007 — a month and a half after this challenge started.

By presenting the original Classified Appendix — to which Hayden had apparently reverted in 2004 — rather than the up-to-date Policy, the government was presenting what they were currently using. But they hid the fact that they had made changes to it right in the middle of this litigation. A fact that would have made it clear that Courts can’t rely on Executive Orders to protect the rights of Americans, especially when they include Classified Annexes hidden within Procedures.

In its language relying on EO 12333, FISCR specifically pointed to DOD 5240.1-R. The Classified Annex to EO 12333 is required under compliance with part of that that complies with the August 27, 2007 PAA compliance.

That is, this Classified Annex is a part of the Russian dolls of interlocking directives and orders that implement EO 12333.

And they were changing, even as this litigation was moving forward.

Only, the government appears to have hidden that information from the FISCR.

Update: Clarified that NSA/CSS Policy 1-23 is what got changed.

Update: Hahaha. The copy of DOD 5240.1 R which the government submitted on December 11, 2007, still bears the cover sheet labeling it as an Annex to NSA/CSS Directive 10-30. Which of course had been superseded in 2004.

Note how they cut off the date to hide that it was 1990?

Note how they cut off the date to hide that it was 1990?

Continue reading

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Border Incidents Escalate Again: Iran Kills Pakistani Soldier

Back on Thursday, I noted that Iran claimed the right to enter Pakistani territory to chase terrorists that it blames for a series of border incidents that have killed a number of Iranian border guards. Iran wasted no time following up on that threat, as on Thursday night Iranian shelling killed one Pakistani soldier. Iran followed that up with border guards entering Pakistani territory on Friday to interrogate a number of villagers. It appears that Iran confiscated a vehicle and other items during the incursion. Diplomatic posturing ensued.

Interestingly, Pakistan claims that the Frontier Corpsman who was killed by Iran was in the process of chasing “miscreants” when the soldiers came under fire:

“The FC personnel were chasing miscreants when they came under attack by Iranian forces. It was a targeted attack on Pakistani forces,” the spokesperson added. One FC vehicle was completely destroyed due to intense firing by Iranian forces.
Iranian border guards continued firing for six hours. However, Pakistani forces did not retaliate to the offensive of the neighbouring country.

The big question is whether Iran feels that Pakistan’s Frontiers Corps is aiding the groups that cross into Iran or whether the Pakistani forces came under fire in this case through a mistake when they were chasing the same “miscreants” Iran presumably wished to target.

There was a small amount of additional cross-border shelling on Saturday that appeared to have no effect.

For their part, Iran does not seem to have addressed the events Thursday night through Saturday, although they did put out a statement today praising their strong security in the border region and comparing the terrorist attacks to “mosquito bites”. Iran blamed trans-regional enemies (the Americans and Zionists) as well as unnamed regional enemies for the attacks.

In an analysis of the flare-ups in Dawn, we see mention of the Jaish al-Adl group, Iranian concerns about development of the port at Gwadar and the tension caused by the border putting an artificial barrier through the heart of the regional home of the Baloch people.

But returning to the point above, it is hard to reconcile the statement from Pakistan that the Frontier Corpsmen who came under fire by Iran while chasing “miscreants” were intentionally targeted. While Iran sees Sunni extremists at the heart of their cross-border attack problems, there would seem to be significant overlap between those groups and the Baloch militants that the Frontiers Corps has long been subject to criticism for human rights abuses while trying to quash said militancy.

If Pakistan is indeed serving as a “regional enemy” of Iran in this case and supporting or providing refuge to some of the groups involved in the attacks on Iranian border posts, then Iran would seem to be justified in attacking the FC personnel. The fact that the FC did not return fire would seem to fit that scenario and serve as a tacit admission that they had been caught doing wrong.  However, if the FC were chasing a group that intended a cross-border attack, then Iran would be the ones responsible for needless escalation.

 

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The Obama Administration Debate on the Convention Against Torture and Anas al-Libi

For some reason, the NYT decided to bury this article from Charlie Savage on page A21. It explains that the Obama Administration is debating internally whether to overturn Obama’s ban against cruelty (which is also mandated by the Detainee Treatment Act). Some intelligence lawyers, apparently, believe Obama’s torture ban and the DTA are too limiting.

It is considering reaffirming the Bush administration’s position that the treaty imposes no legal obligation on the United States to bar cruelty outside its borders, according to officials who discussed the deliberations on the condition of anonymity.

[snip]

State Department lawyers are said to be pushing to officially abandon the Bush-era interpretation. Doing so would require no policy changes, since Mr. Obama issued an executive order in 2009 that forbade cruel interrogations anywhere and made it harder for a future administration to return to torture.

But military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts. They have also raised concerns that current or future wartime detainees abroad might invoke the treaty to sue American officials with claims of torture, although courts have repeatedly thrown out lawsuits brought by detainees held as terrorism suspects.

There were remarkable amounts of denial in response to this, from people who seem totally unaware of the kind of practices — that appear to include isolation, sleep deprivation, food manipulation, and other forms of coercion — currently used by High Value Interrogation Group (HIG), the inter-Agency group used to interrogate terrorist suspects. And this post from David Luban, which lays out some of the loopholes the government might be using to engage in abuse, misses a few.

We know, for example, that there are 2 OLC opinions that say Presidents don’t have to change the text of Executive Orders they choose to ignore, meaning Obama could ignore his torture ban “legally.” There’s also the Appendix M OLC opinion that has approved whatever DOD wants to sneak into the sometimes classified appendix in advance.

All of these issues have been invoked in the case of Anas al-Libi, who recently testified in his challenge to the use of the statements he made to FBI’s Clean Team in his trial, invoking the anxiety produced by the “CIA” interrogation al-Libi experienced on the USS San Antonio. (The interrogation was conducted by the HIG; note that while al-Libi has retained counsel, Bernard Kleinman, I believe he also still has public defenders, including Sabrina Shroff, who has represented HIG-interrogated defendants before, so she can attest to the continuity of the methods involved.)

Al-Libi, a 50-year-old Libyan whose legal name is Nazi Abdul al-Ruqai, testified before U.S. District Judge Lewis Kaplan in an evidentiary hearing tightly focused on the moments following al-Libi’s transfer on October 12, 2013, from military to civilian custody.

Given the situation, “I couldn’t concentrate on anything,” al-Libi told the court through an Arabic translator. When asked by his attorney, Bernard Kleinman, why he signed the papers waving his Miranda rights and paving the way for an FBI interview, al-Libi said, “You have no choice but to sign it.”

And in a filing calling on the government to preserve videotapes and any other records of his shipboard interrogation, al-Libi’s Libyan-retained lawyer invoked precisely the law and Executive Order in question.

18. Upon information and belief he was subjected to daily interrogation by professsional interrogator[s] of the CIA in an unrelenting, hostile, and extraordinary manner.

19.Upon information and belief this interrogation was conducted in a manner in violation of the Defendant’s rights under the Fifth and Sixth Amendments to the federal Constitution, and under applicable treaties and conventions to which the United States is a signatory.2

20.Furthermore, this interrogation was conducted in a manner of inhumane treatment. Notwithstanding the changes effected by both Congress3 and the President4 after the revelations of physical abuse and torture as conducted by the CIA in the name of national security, such measures (even if actually observed by the participants and interrogators) could easily lead to harsh, improper and inhumane treatment that would taint any and all subsequent interrogations, even if preceded by a Miranda warning and waiver execution, and conducted by the FBI or some other federal law enforcement agents.

21. Upon information and belief, these interrogations were videotaped, and otherwise recorded by the CIA, among other U.S. Government agencies.

22.It is, furthermore, reasonable and logical to presume that the interrogator[s] produced hard copy notes of their actions, and provided reports to other representatives of the United States Government (both in the Executive and Legislative branches).

3 In 2005 Congress passed the Detainee Treatment Act, Pub. L. No. 109-148, codified at U.S.C. §§ 2000dd, 2000dd-0, and 2000dd-J, which applied the U.S. Army Field Manual to all military interrogations. It should be noted that the Act specifically provides that

No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

The degree and extent to which the United States Government violated this statute in the kidnapping, abduction, and interrogation of the Defendant are issues to be raised similarly in any subsequent motions made pursuant to Rule 12(b).

4 On January 22, 2009, President Obama issued Executive Order 13491, which directed the CIA to adopt the methods of interrogation as set forth in the U.S. Army Field Manual. See E.O. 13491,74 Fed. Reg. 4893 (Jan. 22, 2009).

5 Both the Detainee Treatment Act and E.O. 13491 refer to the U.S. ARMY FIELD MANUAL, HUMAN INTELLIGENCE COLLECTOR OPERATIONS, referenced as FM 2.22.3 (Sept. 2006 ed.).

I think there are probably a number of HIG-interrogated individuals — including some who were interrogated entirely within the US — who could claim they were subject to degrading treatment. But in this case, the person in question has a privately-retained lawyer, which may present significant concerns for the interrogators in question.

Meanwhile, the government is not providing al-Libi cancer treatment doctors at Duke said during the summer he needs to address liver cancer. Maybe the government is just hoping al-Libi will succumb to cancer before he can press these issues?

Whatever the plan, the government is at least entertaining widening the loopholes that they used in the past to protect torturers.

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Week Seven Pro and College Football Trash Talk

The week got off to a good start as the Patriots outlasted the Jets Thursday night. Barely and, really, the Jets should have won, they played better. Then, yesterday, the Jets traded a conditional draft pick to Seattle for Percy Harvin. Seems like a horrid deal for the Squawks, but apparently Harvin was a locker room cancer. Man, that is a big loss for Seattle talent wise, so they must have really wanted him gone. If the Jets had had him a couple of days earlier, they might well have beaten the Pats. The Seahawks probably won’t miss Harvin too much against the woeful Rams on Sunday, but may later in the year.

The two best games of the weekend are Chiefs at Bolts and 49ers at Broncos. In the former, you have to like San Diego. They finally seem to be getting rid of the Norval Turner syndrome, and Philip Rivers is playing soundly again. The Chefs are capable of blowing out even a good team on any given weekend, but are more than capable of sucking too, especially on the road. The 49ers at Broncos looks like a tossup, but I will take Peyton and the Donks at Mile High against pretty much anybody, and do here. Denver’s receivers are just too good for the so so defensive backfield of San Francisco.

The big game out west is Stanford at ASU here in Tempe. Stanford has pounded the Devils in the last few years, including twice last year (regular season and in Pac-12 championship). ASU is flaky, but they are more than capable of pulling off the win. They now have two quarterbacks as Taylor Kelly is returning from injury, but Mike Bercovicci, who has played well, is expected to get the start. Devils may actually have the better ground game for once too. Still, the odds are Stanford walks out the winner. The Washington Huskies have a great record so far at 5-1, but don’t have nearly enough juice to beat the Oregon Quackers in Eugene. Texas A+M at Alabama has been a fantastic game the last couple of years, and should be again. Both teams have looked out of sorts lately.

The marquee game nationally is, of course, Notre Dame at the Florida State Rapists and Coddlers. Hard to find a team to root for in this matchup. Maybe they could battle to a 0-0 tie, yeah, that would work. The Domers may be undefeated and fifth ranked in the country, but they don’t seem to have the talent or game to compete with the likes of FSU. There is currently a 9.5 point spread on the game in favor of FSU, and that seems about right.

No baseball as the World Series doesn’t start until Tuesday, but how bout them Royals! Formula One is off until November 2nd, when the US Grand Prix in Austin goes off. This week’s music courtesy of Neil Young and Crazyhorse. So, with that, I bid you adieu and chat it up.

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Emptywheel Twitterverse

bmaz Okay, CNN International simulcast is great. Just did a report on the scary clown ban in France. Now that is news I can use. #BanClowns
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bmaz @LegallyErin The report I just saw on CNN looked pretty awesome. Wind and waves onto roads and all kinds of good stuff.
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bmaz @LegallyErin Bundle up baybee!
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bmaz @LegallyErin Say, my tee-bee says you have some kind weather thing going on there.
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bmaz @walterwkatz @gideonstrumpet @ScottGreenfield @LilianaSegura @roomfordebate Yes, that was a nice little touch, no? Jeebus.
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bmaz RT @LegallyErin: There's something very sexy about Anthony Hopkins as Hannibal. I always date the worst guys.
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bmaz @imraansiddiqi You seemed like such a respectable chap, and now here you are talking about Kardashians. #Shame
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bmaz @cody_k I went as a Pando journalist blowing shit out of my ass about Greenwald.
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bmaz @dcbigjohn @erinscafe In or out of the furry costume?
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bmaz RT @AntheaButler: Hands up, don't shoot. RT @deray: Superhero protest. #Ferguson http://t.co/ejnhDLq7jv
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bmaz @JoshuaADouglas @rickhasen @chrislhayes And I ask because that was why I blew off the injunction+contemplated whether were provable damages.
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bmaz @JoshuaADouglas @rickhasen @chrislhayes Question since you are in state there, is hearing even possible before the injunction would be moot?
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