As many people have reported, SCOTUS today declined to take Jim Risen’s appeal of the Fourth Circuit’s decision requiring him to testify in Jeff Sterling’s trial. As I noted at the time of the decision, this effectively guts any reporter’s privilege in the circuit that matters: the Fourth Circuit governs the CIA and JSOC.
Now, Risen’s team is calling on DOJ to uphold Eric Holder’s promise of last week, that no journalist engaged in journalism will be prosecuted on his watch.
“As long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted.”
As Kevin Gosztola has noted on Twitter, however, there’s a difference between prosecution and jailing under contempt. So that promise is likely meaningless.
And not only does that put Holder where he wants to be: with the courts on his side, exercising the discretion to jail a journalist or not as he can convince the court.
Furthermore, consider how it creates pressure for Chuck Schumer’s (Administration-backed) badly flawed press shield bill. The bill wouldn’t cover me. It wouldn’t cover Glenn Greenwald. And it would leave James Risen precisely where he is now, subject to a judges ruling on the significance of the information he has.
There was already a lot of support for this bill. But now that the Executive Branch has gained all the leverage where it matters, I imagine there’ll be a greater push to Do Something — even if that just codifies an official press that gets privilege.
On the same day NYT’s Adam Liptak reported this decision, he also did a profile of SCOTUSBlog’s Thomas Goldstein, who — because he doesn’t fit the official model of journalist, in spite of the number of people who rely on his journalism — still can’t get press SCOTUS press credentials. In spite of near universal acknowledgment of the important role SCOTUSBlog plays, the traditional press hasn’t budged, which has helped SCOTUS punt on the issue too.
The closer the press gets to official sanction, the worse the reporting we’ll get.
I thought Chuck Todd was speculating in that beltway fashion when he said he had heard people suggest Ray Kelly should replace Janet Napolitano as Department of Homeland Security Secretary.
But apparently, Chuck Schumer actually thinks it’s a good idea.
It’s leader needs to be someone who knows law enforcement, understands anti-terrorism efforts, and is a top-notch administrator, and at the NYPD, Ray Kelly has proven that he excels in all three. As a former head of the Customs and Border patrol, he has top-level federal management experience. There is no doubt Ray Kelly would be a great DHS Secretary, and I have urged the White House to very seriously consider his candidacy.
Not only is this a batshit crazy idea because of all the authoritarian things Ray Kelly has done in NYC, from harassing hundreds of thousands of African American and Latino youths to spying on Muslims.
But note how Schumer doesn’t mention the other, equally important part of Homeland Security: keeping the country safe from things like Chinese hackers and natural disasters.
How’d Kelly do at organizing a response to Hurricane Sandy? Maybe we should ask Occupy Sandy about that?
In an article with the URL “when-preet-bharara-speaks-the-shady-get-nervous,” the WaPo repeats a now familiar formula for stories boosting US Attorney Preet Bharara’s fortune: lots of quotes from political powerful allies…
“If [Bharara] smells corruption, he’ll go after it and figure out a way to corral it,” [Chuck] Schumer said. “But he will not make up cases for the sake of making up cases.”
Lots of celebration of recent headlines (I mean, cmon, as I understand it, indicting corrupt NY officials has become the prosecutorial equivalent of shooting fish in a barrel)…
“For the second time in three days, we unseal criminal charges against a sitting member of our state legislature,” Bharara, 44, said during the Thursday afternoon news conference in downtown Manhattan. This time, the U.S. attorney accused a Bronx assemblyman of accepting bribes as part of a scheme to aid developers, which Bharara called “a fairly neat trick” that amounted to “a legislator selling legislation.”
And lots of hints that scream “Pick Preet! Promote Preet!”
It is now highly unlikely that the White House would forget about Bharara, as administration officials somehow did in 2009, when they failed to invite the Indian American powerhouse to the Indian state dinner.
Such concerns are unlikely to slow down Bharara. Considered politically astute by observers in Washington and New York, Bharara made a point of not taking sides in the 2008 Democratic presidential primary that pitted then-senators Barack Obama and Hillary Rodham Clinton. He has been rumored as a possible successor to his boss, Attorney General Eric H. Holder Jr., either in the current administration or the next Democratic one.
But not one word about his failure to hold anyone accountable for the 2008 financial crash (aside from citing last year’s Time magazine story that falsely claimed “This Man Is Busting Wall Street”).
But Chuck Schumer and Preet’s other boosters appear to believe that’s the formula that will get Preet nominated to replace Eric Holder.
Sadly, they’re probably right.
Amidst all the partying and pandering, some actual journalism did take place in Charlotte. Gawker’s John Cook asked the following people about whether Americans could trust Mitt Romney to decide which American citizens to assassinate with drones (definitely click through for the video):
Only Bill Press gives an answer that even recognizes the gravity of the answer.
It’s an interesting question, though, for another reason.
If Mitt were elected, then the Kill List’s rightful owner, Cofer Black, might well get it back. The Kill List–like so much else–goes back to the September 17, 2001 “Gloves Come Off” Memorandum of Notification that Black threw together as a wish list of expansive counterterrorism approaches. (Also on there, btw, was partnering with Libya on torture, which Human Rights Watch further exposed the other day and I plan to return to.) And remarkably, when Cofer Black was in charge of the Kill List, it was used more judiciously than Obama has used it (Black had moved out of the Counterterrorism role at CIA before Kamal Derwish became the first American killed in a drone strike on November 5, 2002). And who knows? If Black took responsibility for the Kill List back, he might choose to focus on torture like he did before.
Don’t get me wrong–I don’t want Cofer Black back in any official capacity. But it’s worth remembering that Obama’s Kill List is really just a hand me down from the guy who, along with the Kill List, also instituted torture and partnership with Moammar Qaddafi.
The guy who covered up CIA’s torture, Jose Rodriguez, worries that Khalid Sheikh Mohammed might give a speech during the course of his military commission.
Although he acted defiantly in court, Rodriguez said KSM would like nothing more than a forum to preach radical Islam.
“This is a process that will continue for a long time,” Rodriguez said. “I have heard he may plead not guilty, and if he does, he’ll use the [legal] process as his platform . . . to talk about his jihadist beliefs.”
“It seemed to us that he was looking for a platform from which he could spout his hatred for all things American, and a trial would certainly present that opportunity,” Rodriguez writes. “It strikes me as more than a little ironic that several years later, Attorney General Eric Holder almost granted KSM his wish.”
Ironically, Rupert’s rag decided to plug these Rodriguez fears the day after KSM and his co-defendants tied up the military commission in knots not by speaking, but by remaining silent.
Judge [James] Pohl turns to Mohammed’s attorneys and his right to counsel. Mr. Mohammed, he says, pursuant to the Manual for Military Commissions, you are today represented by two military lawyers, Derek Poteet and Jason Wright, your detailed counsel. Do you understand this?
There’s a pause – the first of many, as we’ll soon see – as the court and counsel wait for the defendant’s responds. KSM doesn’t give one, and Judge Pohl notes as much. Very well, he continues, detailed counsel will be provided to you.
“He’s Ray Kelly, so what’re you gonna do? I mean, he’s all-knowing, all-seeing,” Christie said.
“And I don’t know all the details yet, but my concern is, you know, why can’t you be, you know, communicating with the people here in New Jersey, with law enforcement here in New Jersey. Are we somehow not trustworthy?” said Christie.
“This is New York Police Department. I know they think their jurisdiction is the world. Their jurisdiction is New York City. So if they’re going to leave their jurisdiction and go to investigate a case in another jurisdiction, it could be dangerous,” Christie said. “This is the way law enforcement people get hurt or killed, is when they’re not cooperating with each other, not communicating with each other.”
“I’m not saying they don’t belong in New Jersey, but tell us! Share it with the appropriate law enforcement agency,” Christie said. “My concern is this kind of obsession that the NYPD seems to have that they’re the masters of the universe.”
Then there’s the spectacle of King defending Ray Kelly as if the latter is a shrinking violet, with neither access to the press nor taste for a fight himself.
Rep. Peter King, chairman of the House Homeland Security Committee, said Gov. Chris Christie crossed a line when he mocked Police Commissioner Ray Kelly as “all-knowing, all-seeing” and said the NYPD’s intelligence operation in Newark may have been “born out of arrogance.”
“I just found it a real disappointment the way he was conducting himself, the way he was taking cheap shots at Ray Kelly,” King said.
Sure, aside from Booker, who seems genuinely concerned either with his actual constituents or appearing that way, this is a giant pissing contest between men defending their turf.
Part of me wonders why most of these men have reacted so strongly. Christie, after all, must have close ties to Newark’s FBI officers from his time as US Attorney. That seems to be what this dig is about:
“His main objection seems to be that he wasn’t … brought in. But the fact is that he wasn’t governor. He was U.S. attorney. And I’m not aware of any major terror plots that he ever uncovered while he was U.S. attorney in New Jersey.”
(King forgets, of course, that the NYPD didn’t find any of the major terrorist attacks since 9/11–street vendors and the FBI did.)
Part of me wonders whether Kelly, channeling J. Edgar Hoover as he increasingly seems to be doing, has some dirt on King and Schumer to make cow them like this.
But the real sick part of my personality can’t help but visualize this ending in a giant wrestling match pitting King and Schumer against Christie and Booker. In fact, I’m even thinking of taking bets.
Sorry about the abundance of brain bleach posts this morning folks–it must be the weather.
Schumer, rarely a courageous man, made full use of the passive when he tried to claim everyone knew the spying program makes NY safer.
There is nothing wrong with the NYPD collecting and assessing publicly available information from New York, New Jersey, the other 48 states or around the world in the effort to prevent another terror attack like 9/11. In fact, it is widely understood that the NYPD’s actions have kept us safer. Looking at public information and following leads is perfectly acceptable as long as any one group, in its entirety, is not targeted based only on its religious or ethnic affiliation. [my emphasis]
Nevermind that the NYPD uses techniques–like informants and permanent cameras–that aren’t exactly available to the public. Nevermind that Schumer’s backing himself into a corner with his new caveat that profiling is okay so long as not the entire ethnic group is profiled (though arguably, they are).
Schumer proves unable to say, in the affirmative, that he knows this makes NY safer. And he ought to consider that question seriously.
More offensive is the NYPost’s insinuation that the AP is just in this for a Pulitzer.
Columbia is also where they keep the Pulitzers in the off-season; American journalism’s most treasured self-affirmation program is more or less run from the university’s J-school. Since the awards are soon to be presented, and since the AP’s lust for one is almost comically transparent, its show-the-flag campus visit is wholly unsurprising.
Strip away the emotive rhetoric and what’s left is a series of stories over several weeks that show pretty clearly that the NYPD works very hard to keep the city safe — operating an aggressive and imaginative program, but staying well within both the law and the bounds of post-9/11 propriety from beginning to end.
At least twice in the decade before the NYPD program began, Islamist sleeper agents attacked New York City. The first time, six people died; the second, thousands.
Since then, the department has disrupted a number of Islamist-initiated plots; there is no way of telling how many more were never undertaken because the city is so aggressively anti-terrorist. And there have been no terror-related fatalities since 9/11.
That could change tomorrow — presumably the AP’s Pulitzer prospects would tail off sharply if it did — but that would prove only that there are no guarantees in counterterrorism.
Here, the NYPost is just flat out wrong–or should be.
If there were a terrorist attack tomorrow, the inevitable commission would finally give the NYPD spying program the scrutiny it needs, scrutiny which the AP has tried to offer. And that commission will discover that the NYPD has spent its time spying on girls’ and grade schools, hunting out Muslims at Jewish businesses, scamming whitewater rafting trips off of taxpayers.
Sure, such efforts have led to hyped busts of folks it took 31 months for the NYPD to coach how to drill holes into a pipe. Such busts only discredit Mayor Bloomberg, Ray Kelly, and ultimately everyone defending this program.
What those efforts didn’t find were the real terrorist attacks. They didn’t find Najibullah Zazi and they didn’t find Faisal Shahzad–even though both were right under their nose. Continue reading
The NYDN and NYPost continue their uncritical defense of the NYPD’s spying on residents of other cities. In response to continued outrage that NYPD’s officers profiled Newark’s and Paterson’s Muslim community, the New York fearmonger papers’ response is basically a taunt that New Jersey should be grateful the NYPD has invaded their state because New Jersey can’t prevent terrorism on its own.
What is the matter with New Jersey politicians that they are raising a stink because the NYPD keeps an eye out for terrorists on their turf?
Have Gov. Chris Christie and Newark Mayor Corey Booker forgotten that 746 residents of the Garden State were killed in the terrorist attacks of 9/11?
Have they forgotten that ringleader Mohammed Atta met with co-conspirators in Newark?
Have they forgotten that the van used in the 1993 World Trade Center bombing was rented in Jersey City?
(The NYDN, which claims to have read the profile reports on things like girls’ schools, seems to have missed that none of the profiling reports we’ve seen from the NYPD have targeted any of the kinds of NJ establishments the terrorists have used in the past.)
But as a MI resident, what I’m really amused by is the NYPD boosters’ claim that Newark is “overmatched” and “incapable.”
So why wouldn’tthe NYPD bring its unmatched skills to bear in Newark, whose overmatched police department is simply incapable of monitoring threats as they develop far out of sight?
I can remember only one police department in recent years which has been “overmatched.” And that’s the NYPD, when faced with the prospect of hosting a terrorist trial in Manhattan.
When DOJ first announced plans to try Khalid Sheikh Mohammed and the other 9/11 plotters in New York, Ray Kelly started making the same kind of complaints about not being consulted as New Jersey’s politicians are making now.
NYPD Commissioner Ray Kelly said the Justice Department did not consult the city officials before deciding to send Khalid Sheikh Mohammed and four others to New York City for trial.
“There was no consultation, no consultation with the police department. That decision was made. We were informed,” Kelly said Tuesday.
When asked if the NYPD should have been asked about security and other considerations in advance of sending the accused terrorist to the scene of the attack, Kelly said,” The fact is we weren’t asked. And we will make the best of a situation. We weren’t.”
At first Kelly said the NYPD would be up to the task. But then he started rolling out a plan to effectively militarize lower Manhattan and demanded first $90 million then $200 million to pay for his war zone. Ultimately, the DOJ gave up the plan for a civilian trial.
Because Ray Kelly wasn’t up to the task of hosting a terrorist trial, Khalid Sheikh Mohammed has had at least two years added to his life.
Steven Aftergood notes that the Army just issued new directives for the use of drones in civilian airspace. The new directives include nothing earth shattering (my favorite part is the enclosure from 2009 explaining what to do when you lose contact with one of your drones, on PDF 18–but really, what could go wrong?). But it does, as Aftergood notes, reflect a real enthusiasm for using more drones in civilian airspace.
Which brings me to a part of the NDAA debate that has remained largely undiscussed.
Days after the NDAA past, Chuck Schumer started boasting about how the NDAA would bring jobs to Syracuse, NY because the city’s airport might be one of 6 sites approved as test sites for drones flying in civilian airspace.
The National Defense Authorization Act signed into law last week by President Barack Obama allows for the establishment of six national test sites where drones could fly through civil air space.
Schumer, D-N.Y., said Tuesday he pushed for the establishment of six spots, instead of the planned four, to improve the chances that Hancock Field would be included.
Schumer said Hancock already meets FAA requirements for unmanned aerial vehicles because about 7,000 square miles surrounding the airport is designated as “special use” airspace.
He said that “making Hancock a test site for this technology would be a boon for Central New York, creating jobs and bringing new investments to our defense contractors that provide thousands of good paying jobs.”
Curiously, the language addressing drones in civilian airspace in the NDAA, as passed, doesn’t actually say this.
SEC. 1074. REPORT ON INTEGRATION OF UNMANNED AERIAL SYSTEMS INTO THE NATIONAL AIRSPACE SYSTEM.
(a) REPORT REQUIRED.—Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall, in consultation with the Administrator of the Federal Aviation Administration and on behalf of the UAS Executive Committee, submit to the appropriate committees of Congress a report setting forth the following:
(1) A description and assessment of the rate of progress in integrating unmanned aircraft systems into the national airspace system.
(2) An assessment of the potential for one or more pilot program or programs on such integration at certain test ranges to increase that rate of progress.
Rather, it seems to require Secretary Panetta to tell Congress whether “one or more” test ranges would “help” us get drones into civilian airspace more quickly. Perhaps the new Army guidelines are part of DOD’s preparation for the report to Congress.
That said, there is evidence that the legislative intent behind the NDAA is to push those 6 sites forward. Here’s what the managers’ statement said about this section (note, the numbering changed as sections got squished together into a bill).
Unmanned aerial systems and national airspace (sec. 1097)
I became aware of the pro-drone legislation from a February 10, 2011, Syracuse Post Standard report that Sen. Charles Schumer (D-New York) was supporting an amendment to the pending Federal Aviation Administration (FAA) reauthorization bill (S. 223) that would create test zones for the introduction of drones into general airspace.
Senator Schumer was interested in the pro-drone amendment because MQ-9 Reaper drones, killer drones that are flying over Afghanistan, Pakistan and Iraq, are stationed at Hancock Air Base near Syracuse. However, FAA safety restrictions have limited drone flights out of Hancock.
“If Schumer’s legislative move succeeds this week,” said the Post Standard, “it would help ensure the future of 1,215 jobs at the (air) base in Mattydale (New York) and potentially lead to millions of dollars in radar research contracts for local defense companies.”
Aside from jobs, what’s remarkable about the push for drones is how amorphous the purpose of the drones are. Here’s Candice Miller, one of the sponsors of the amendment, describing the need:
My amendment is designed to help expedite and to improve the process by which FAA works with government agencies to incorporate unmanned aerial vehicles, or UAVs as they’re commonly called, into the National Airspace System. Currently, Mr. Chairman, law enforcement agencies across the country, from Customs and Border Protection to local police departments, et cetera, are ready to embrace the new technology and to start utilizing UAVs in the pursuit of enforcing the law and protecting our border as well.
However, the FAA has been very hesitant to give authorization to these UAVs due to limited air space and restrictions that they have. I certainly can appreciate those concerns; but when we’re talking about Customs and Border Protection or the FBI, what have you, we are talking about missions of national security. And certainly there’s nothing more important than that. It was a very, very lengthy exercise to get the FAA to authorize the use of UAVs on the southern border. While they’re finally being utilized down there, we are certainly a long way from fully utilizing these technologies. [my emphasis]
That is, we’re talking about CPB (which has used the drones for some years), but also the FBI, local police departments, and “et cetera” using the drones.
Did I miss the open, public debate about whether we want the FBI–much less local police departments or “et cetera” using drones to spy on Americans’ activities?
Then again, I guess this is why the government needs to trump up claims about self-radicalized Americans: to provide some justification, no matter how thing, for our latest jobs program.