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Did FBI Use Katrina as an Excuse for DIY Location Collection?

fisa-prtt-bar-graphLast week, Muckrock’s Shawn Musgrave wrote a piece showing that, in the wake of Katrina and a slew of other 2005 hurricanes, in 2006 FBI’s Wireless Intercept and Tracking Team said they needed more equipment from Harris Corporation, the maker of Stingrays. They justified it because the hurricanes degraded the capabilities of something, which remains redacted. But as Musgrave notes, the storms took out a lot of the telecom infrastructure, which may be what the redacted passages describe.

“In the summer of 2005, the U.S. Gulf Coast bore the brunt of several hurricanes, including Hurricane Katrina which severely degraded the capabilities of the [redacted],” the memo reads in part. Subsequent, heavily redacted sentences suggest that the storm crippled the FBI’s capacity to conduct certain types of cell phone tracking operations via equipment on-hand at the time of landfall.

[snip]

Hurricane Katrina incapacitated wide swaths of telecommunications infrastructure along the Gulf Coast, including thousands of cell phone towers. Power outages also meant many people were unable to recharge their mobile devices. It’s thus unclear which Harris Corporation product the FBI’s cell phone tracking team identified as a critical solution.

In other words, it appears that almost a year after Katrina, the FBI used the 2005 damage to telecom infrastructure as justification for getting an urgent purchase of Harris equipment, possibly Stingrays, approved.

I find the timing curious. After all, Congress approved a slew of funding right after Katrina. And Congress was debating budgetary issues in October 2005. While there’s nothing that ties this request to a budget request, it just seems odd that FBI would have identified a need in September 2005, and then sit on that urgent request until the following July. Though that July request specifically mentioning Katrina seems to be the same request that got filed in March and was in process in April. That’s not as distant from the hurricanes that purportedly identified the need, but still an odd delay for something urgent.

There’s something else that was happening in 2005 and 2006, though, that may have been as central in creating a need for Stingrays as damage to telecom equipment caused by hurricanes.

On October 14, 2005, a magistrate judge in Texas refused a request to yoke a Pen Register order onto a subscriber record subpoena to obtain location data from a telecom. Then some other magistrates started joining in. This created two problems. First, how would FBI get that location information in criminal cases. But also, in December 2005, Congress moved towards limiting the use of Section 215 orders to things that may be obtained with a subpoena, a move that would become official with the renewal of the PATRIOT Act on March 9, 2006. So even while magistrates were hashing out how the FBI might obtain such information from telecoms in garden variety criminal cases (a debate that is currently before SCOTUS), FISC and the government appear to have been having the same debate behind closed doors. In February 2006, FISC required briefing on what appears to be a parallel use of PRTT combined with a subpoena — a FISA PRTT yoked to a Section 215 order. And while the exact timing isn’t clear, we know those combined orders ended in 2006.

In other words, hurricanes may have damaged telecom infrastructure leading FBI to rely more on Stingrays. But at the same time, the legal landscape for location requests was changing, perhaps even more dramatically on the FISA side than on the criminal side.

And we know — yesterday’s change in policy admitted to FISA uses for Stingrays, though we knew this already — that FBI does use Stingrays to obtain location data under FISA as well as under criminal cases.

Katrina may have created part of the need for FBI to do more Do It Yourself location tracking, bypassing the telecoms. But legal issues created a need too, and I’d be willing to bet that the big urgency to expand FBI’s DIY location tracking abilities in 2006 had quite a bit to do with the need to find another way of location tracking, preferably one with a lot fewer people reviewing the paperwork involved.

If I’m right, then it would suggest some interesting things about the fluctuations in PRTTs (I stole the table above from EPIC). That is, in 2006, there were significant drops in PRTTs, followed by a huge drop in 2008.

On the criminal side, FBI still gets PRTT orders when it uses a Stingray. I assume the same is true on the FISA side (though it would be a lot harder to enforce here, especially because no defendant would ever get notice). But we also know the government has been hiding bulk collection under single orders, so it wouldn’t take too many orders to incorporate a lot of people.

Did FBI stock up on Harris equipment because of the weather, or because of the law?

More Details on the Tres Marias Ambush

Matthew Aid linked to FOIAed State Department documents on the ambush of two intelligence officials in August 2012 (the documents were actually released to John Dyer in 2014).

They provide a number of interesting new details about the assault (see my earlier coverage here, here, here, and here).

  • Although the State Department hesitated to use the word “ambush” publicly for some time after the event, internal documents used that term immediately
  • The Federal Police — the same people who conducted the ambush! — brought the Americans to a hospital in Cuernavaca, though there were also army and navy individuals present (note, there had been a shooting in Cuernavaca the previous day)
  • There were 152 shots fired at the American car — far more than reported in initial reports; 40% of those were focused on the front seat windows, which not only (according to a cable) are the most vulnerable spots in the armor on the SUV, but also happened to be where the Americans were sitting
  • There’s a reference to pictures from the phones of the “agents,” which seems to be a reference to the victims; this is the one instance where the cables drop the charade that these were general Embassy employees
  • Both DIA and CIA were copied immediately on the first cables (DEA was not copied on anything, I don’t think)
  • An early cable said that our escaping vehicle may have run over one or two of the assailants
  • Unsurprisingly, the FBI had the lead on investigating the incident from very early on, despite a public focus on Mexico’s Attorney General’s role
  • A mostly redacted cable complaining about the slow pace of the investigation includes discussion of the US refusing to provide the victims for witness testimony (remember one of the two was on Temporary Duty in Mexico, meaning they hadn’t approved him as a credentialed Embassy employee working under official cover)
  • The police commander who ordered the culprits to lie about whether they were wearing uniforms or not had been in appropriately promoted, suggesting he’s someone’s fixer

More generally, the cables seem concerned with measuring the seriousness with which President Felipe Calderón responded to the attack. For example, this partly redacted discussion relays someone’s explanation of Calderón’s instructions the day of the attack.

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Then, a cable relaying the public apology Calderón gave four days after the attack included these details, including that the apology was not in his written speech.

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A description of Ambassador Anthony Wayne’s meeting with Calderón on early September is mostly redacted (it also includes details of meetings with Mexico’s AG). That description went to — among others — CIA Director David Petraeus, as well as John Brennan (who was still in the White House). And once Enrique Peña Nieto was elected, the Americans seemed pretty enthusiastic about cooperating when them going forward rather than Calderón.

A number of the cables tie the attack closely to the Merida initiative.

 

The Continued Belief in Unicorn Cyber Deterrence

For some reason, people continue to believe Administration leaks that they will retaliate against China (and Russia!) for cyberattacks — beyond what are probably retaliatory moves already enacted.

I think Jack Goldsmith’s uncharacteristically snarky take is probably right. After cataloging the many past leaks about sanctions that have come to no public fruition, Goldsmith talks about the cost of this public hand-wringing.

As I have explained before, figuring out how to sanction China for its cyber intrusions is hard because (among other reasons) (i) the USG cannot coherently sanction China for its intrusions into US public sector (DOD, OPM, etc.) networks since the USG is at least as aggressive in China’s government networks, and (ii) the USG cannot respond effectively to China’s cyber intrusions in the private sector because US firms and the US economy have more to lose than gain (or at least a whole lot to lose) from escalation—especially now, given China’s suddenly precarious economic situation.

But even if sanctions themselves are hard to figure out, the public hand-wringing about whether and how to sanction China is harmful.  It is quite possible that more is happening in secret.  “One of the conclusions we’ve reached is that we need to be a bit more public about our responses, and one reason is deterrence,” a senior administration official in an “aha” moment told Sanger last month.  One certainly hopes the USG is doing more in secret than in public to deter China’s cybertheft.   Moreover, one can never know what cross-cutting machinations by USG officials lie behind the mostly anonymous leaks that undergird the years of stories about indecisiveness.

This performance seems to be directed at domestic politics, because the Chinese aren’t impressed.

A still crazier take, though, is this one, which claims DOJ thought indicting 5 PLA connected hackers last year would have any effect.

But nearly a year and a half after that indictment was unveiled, the five PLA soldiers named in the indictment are no closer to seeing the inside of a federal courtroom, and China’s campaign of economic espionage against U.S. firms continues. With Chinese President Xi Jinping set to arrive in Washington for a high-profile summit with President Barack Obama later this month, the question of how — and, indeed, if — the United States can deter China from pilfering American corporate secrets remains very much open. The indictment of the PLA hackers now stands out as a watershed moment in the escalating campaign by the U.S. government to deter China from its aggressive actions in cyberspace — both as an example of the creative ways in which the United States is trying to fight back and the limits of its ability to actually influence Chinese behavior.

[snip]

In hindsight, the indictment seems less like an exercise in law enforcement than a diplomatic signal to China. That’s an argument the prosecutor behind the case, U.S. Attorney David Hickton, resents. “I believe that’s absolute nonsense,” Hickton told Foreign Policy. “It was not the intention, when we brought this indictment, to at the same time say, ‘We do not intend to bring these people to justice.’”

But it’s unclear exactly what has happened to the five men since Hickton brought charges against them. Their unit suspended some operations in the aftermath of the indictment, but experts like Weedon say the group is still active. “The group is not operating in the same way it was before,” she said. “It seems to have taken new shape.”

Hickton, whose office has made the prosecution of cybersecurity cases a priority, says he considers the law enforcement effort against hackers to be a long-term one and likens it to indictments issued in Florida against South American drug kingpins during the height of the drug war. Then, as now, skeptics wondered what was the point of bringing cases against individuals who seemed all but certainly beyond the reach of U.S. law enforcement. Today, Hickton points out, U.S. prisons are filled with drug traffickers. Left unsaid, of course, is that drugs continue to flow across the border.

That’s because it fundamentally misunderstands what the five hackers got indicted for.

This indictment was not, as claimed, for stealing corporate secrets. It was mostly not for economic espionage, which we claim not to do.

Rather — as I noted at the time — it was for stealing information during ongoing trade disputes.

But the other interesting aspect of this indictment coming out of Pittsburgh is that — at least judging from the charged crimes — there is far less of the straight out IP theft we always complain about with China.

In fact, much of the charged activity involves stealing information about trade disputes — the same thing NSA engages in all the time. Here are the charged crimes committed against US Steel and the United Steelworkers, for example.

In 2010, U.S. Steel was participating in trade cases with Chinese steel companies, including one particular state-owned enterprise (SOE-2).  Shortly before the scheduled release of a preliminary determination in one such litigation, Sun sent spearphishing e-mails to U.S. Steel employees, some of whom were in a division associated with the litigation.  Some of these e-mails resulted in the installation of malware on U.S. Steel computers.  Three days later, Wang stole hostnames and descriptions of U.S. Steel computers (including those that controlled physical access to company facilities and mobile device access to company networks).  Wang thereafter took steps to identify and exploit vulnerable servers on that list.

[snip]

In 2012, USW was involved in public disputes over Chinese trade practices in at least two industries.  At or about the time USW issued public statements regarding those trade disputes and related legislative proposals, Wen stole e-mails from senior USW employees containing sensitive, non-public, and deliberative information about USW strategies, including strategies related to pending trade disputes.  USW’s computers continued to beacon to the conspiracy’s infrastructure until at least early 2013.

This is solidly within the ambit of what NSA does in other countries. (Recall, for example, how we partnered with the Australians to obtain information to help us in a clove cigarette trade dispute.)

I in no way mean to minimize the impact of this spying on USS and USW. I also suspect they were targeted because the two organizations partner together on an increasingly successful manufacturing organization. Which would still constitute a fair spying target, but also one against which China has acute interests.

But that still doesn’t make it different from what the US does when it engages in spearphishing — or worse — to steal information to help us in trade negotiations or disputes.

We’ve just criminalized something the NSA does all the time.

The reason this matters is because all the people spotting unicorn cyber-retaliation don’t even understand what they’re seeing, and why. I mean, Hickton (who as I suggested may well run for public office) may have reasons to want to insist he’s championing the rights of Alcoa, US Steel, and the Steelworkers. But he’s not implementing a sound deterrence strategy because — as Goldsmith argues — it’s hard to imagine one that we could implement, much less one that wouldn’t cause more blowback than good.

Before people start investing belief in unicorn cyber deterrence, they’d do well to understand why it presents us such a tough problem.

 

The Loopholes in DOJ’s New Stingray Policy

DOJ just announced a new policy on use of Stingrays which requires a warrant and minimization of incidentally-collected data. It’s big news and an important improvement off the status quo.

But there are a few loopholes.

Exigent and emergency uses

First, the policy reserves exigent uses. The exigent uses include most of DOJ Agencies known uses of Stingrays now.

These include the need to protect human life or avert serious injury; the prevention of the imminent destruction of evidence; the hot pursuit of a fleeing felon; or the prevention of escape by a suspect or convicted fugitive from justice.

[snip]

In addition, in the subset of exigent situations where circumstances necessitate emergency pen register authority pursuant to 18 U.S.C. § 3125 (or the state equivalent), the emergency must be among those listed in Section 3125: immediate danger of death or serious bodily injury to any person; conspiratorial activities characteristic of organized crime; an immediate threat to a national security interest; or an ongoing attack on a protected computer (as defined in 18 U.S.C. § 1030) that constitutes a crime punishable by a term of imprisonment greater than one year.

We know the US Marshals constitute the most frequent users of admitted Stingray use — they’d be covered in prevention of escape by a fugitive. DEA seems to use them a lot (though I think more of that remains hidden). That’d include “conspiratorial activities characteristic of organized crime.” And it’s clear hackers are included here, which includes the first known use, to capture Daniel Rigmaiden.

And I’m not sure whether the exigent/emergency use incorporates the public safety applications mentioned in the non-disclosure agreements localities sign with the FBI, or if that’s included in this oblique passage.

There may also be other circumstances in which, although exigent circumstances do not exist, the law does not require a search warrant and circumstances make obtaining a search warrant impracticable. In such cases, which we expect to be very limited, agents must first obtain approval from executive-level personnel at the agency’s headquarters and the relevant U.S. Attorney, and then from a Criminal Division DAAG. The Criminal Division shall keep track of the number of times the use of a cell-site simulator is approved under this subsection, as well as the circumstances underlying each such use.

In short, many, if not most, known uses are included in exceptions to the new policy.

Notice to defendants

The many known uses of Stingrays where warrants would not be necessary — and where DOJ would therefore just be using a PRTT — are of particular importance given the way new disclosure requirements work. There are, to be sure, admirable new requirements to tell judges what the fuck they’re approving and what it means. But nothing explicitly says defendants will not get noticed. DOJ has said no past or current usage of Stingrays will get noticed to defendants. And all these non-warrant uses of Stingrays will be noticed either, probably. In other words, this returns things to the condition where defendants won’t know — because they would normally expect to see a warrant that wouldn’t exist in these non-warrant uses.

Sharing with localities

The policy doesn’t apply to localities, which increasingly have their own Stingrays they permit federal agencies to use. Curiously, the language applying this policy to federal cooperation with localities would suggest the federal rules only apply if the Feds are supporting localities, not if the reverse (FBI borrowing Buffalo’s Stingray, for example) is the case.

The Department often works closely with its State and Local law enforcement partners and provides technological assistance under a variety of circumstances. This policy applies to all instances in which Department components use cell-site simulators in support of other Federal agencies and/or State and Local law enforcement agencies.

Thus, it may leave a big out for the kind of cooperation we know to exist.

National security uses

Then, of course, the policy only applies in the criminal context, though DOJ claims it will adopt a policy “consistent” with this one on the FISC side.

This policy applies to the use of cell-site simulator technology inside the United States in furtherance of criminal investigations. When acting pursuant to the Foreign Intelligence Surveillance Act, Department of Justice components will make a probable-cause based showing and appropriate disclosures to the court in a manner that is consistent with the guidance set forth in this policy.

BREAKING! FBI has been using Stingrays in national security investigations! (Told ya!)

This language is itself slippery. FISC use of Stingrays probably won’t be consistent on the FISC side (even accounting for the many ways exigent uses could be claimed in national security situations), because we know that FISC already has different rules for PRTT on the FISC side, in that it permits collection of post cut through direct dialed numbers — things like extension numbers — so long as that gets minimized after the fact. The section on minimization here emphasizes the “law enforcement” application as well. So I would assume that not only will national security targets of Stingrays not get noticed on it, but they may use different minimization rules as well (especially given FBI’s 30 year retention for national security investigation data).

Other agencies use of Stingrays for content

DOJ suggests that DOJ never collects content using Stingrays by stating that its Stingrays always get set not to collect content.

Moreover, cell-site simulators used by the Department must be configured as pen registers, and may not be used to collect the contents of any communication, in accordance with 18 U.S.C. § 3127(3). This includes any data contained on the phone itself: the simulator does not remotely capture emails, texts, contact lists, images or any other data from the phone. In addition, Department cell-site simulators do not provide subscriber account information (for example, an account holder’s name, address, or telephone number).

But the rest of the policy makes it clear that department agents will work with other agencies on Stingray use. Some of those — such as JSOC — not only would have Stingrays that get content, but can even partner within the US with FBI.  So DOJ hasn’t actually prohibited its agencies from getting content from a Stingray (domestically — it goes without saying they’re permitted to do so overseas), just that it won’t do so using its own Stingrays.

Funny definitional games

Finally, while not necessarily a loophole (or at least not one I completely understand yet), I’m interested in this definition.

In the context of this policy, the terms “collection” and “retention” are used to address only the unique technical process of identifying dialing, routing, addressing, or signaling information, as described by 18 U.S.C. § 3 I 27(3), emitted by cellular devices. “Collection” means the process by which unique identifier signals are obtained; “retention” refers to the period during which the dialing, routing, addressing, or signaling information is utilized to locate or identify a target device, continuing until tlle point at whic!h such information is deleted.

This definition (which only applies to this policy and therefore perhaps not to national security uses of Stingrays) employs an entirely different definition for collection and retention than other collection that relies on collection then software analysis. Under upstream collection, for example, the government calls this definition of “retention” something closer to “collection.” Don’t get me wrong — this is probably a better definition than that used in other contexts. But I find it funny that FBI employs such different uses of these words in very closely connected contexts.

So, in sum, this is a real victory, especially the bit about actually telling judges what they’re approving when they approve it.

But there are some pretty obvious loopholes here….


Update: ACLU also welcomes this while pointing to some of the limits of the policy.

Update: Here are some of my posts on the FISA uses of PRTT, including (we now know) Stingrays.

https://www.emptywheel.net/2015/06/11/doj-ig-fbis-secret-applications-of-prtt-are-even-more-secret-than-its-secret-applications-of-section-215/

https://www.emptywheel.net/2015/05/01/fbis-pen-registers-without-any-call-records/

https://www.emptywheel.net/2015/04/30/the-loss-of-prtt-minimization-review-in-usa-f-redux/

https://www.emptywheel.net/2015/03/17/is-there-a-programmatic-stingray/

AIPAC and Bibi: The Reckoning

Faced with what will be its biggest legislative defeat ever — the passage of the Iran deal, possibly by upholding Obama’s veto — AIPAC is lashing out, blaming Bibi.

An official from the American Israel Public Affairs Committee, the leading pro-Israel lobby in the US, on Thursday blasted Prime Minister Benjamin Netanyahu for harming the opposition to the Iran nuclear deal by insisting on addressing Congress on the issue in March.

“Netanyahu’s speech in Congress made the Iranian issue a partisan one,” the AIPAC official told Israel’s Walla news. “As soon as he insisted on going ahead with this move, which was perceived as a Republican maneuver against the president, we lost a significant part of the Democratic party, without which it was impossible to block the agreement,” said the official, who asked not to be named.

Of course AIPAC has plenty to own in its loss of influence too, in part by backing Bibi’s hard right policies rather than policies that support Israel’s security.

Bibi and AIPAC deserve each other.

But if they want to start taking out each other to avoid taking responsibility for how ridiculously hard right their views have become, I can live with that.

The Lessons NSA Teaches When It Conflates Use of Encryption with Terrorism

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Just a few days after our Egyptian allies sentenced 3 Al Jazeera journalists to 3 years in prison, Turkey joined the club, charging 2 UK Vice employees and their Turkish fixer with terrorism. Today, Al Jazeera explained why the Vice journalists got charged: because the fixer uses an encryption technique that members of ISIS also use.

Three staff members from Vice News were charged with “engaging in terrorist activity” because one of the men was using an encryption system on his personal computer which is often used by the Islamic State of Iraq and the Levant (ISIL), a senior press official in the Turkish government has told Al Jazeera.

Two UK journalists, Jake Hanrahan and Philip Pendlebury, along with their Turkey-based Iraqi fixer and a driver, were arrested on Thursday in Diyarbakir while filming clashes between security forces and youth members of the outlawed and armed Kurdistan Workers’ Party (PKK).

On Monday, the three men were charged by a Turkish judge in Diyarbakir with “engaging in terrorist activity” on behalf of ISIL, the driver was released without charge.

The Turkish official, who spoke on condition of anonymity, told Al Jazeera: “The main issue seems to be that the fixer uses a complex encryption system on his personal computer that a lot of ISIL militants also utilise for strategic communications.”

Note, the Vice journalists were reporting on PKK, not ISIS, but it wouldn’t be the first time Turkey used ISIS as cover for their war against PKK.

A lot of people are treating this as a crazy expression of rising Turkish repression, that it conflates use of encryption — even a certain kind of encryption! — with membership in ISIS.

But they’re not the only one who does so. As the slide above — and some other documents released by Snowden — makes clear, NSA makes the same conflation. How do you find terrorists without other information, this slide asks? Simple! You find someone using encryption.

While the US might not arrest people based on such evidence (though it did hold Al Jazeera journalist Sami al-Hajj for years without charge), they certainly make the same baseless connection.

Even Tom Friedman…

Is now calling out those who claim Iran — and not Saudi Arabia — is the biggest sponsor of terrorism.

The Washington Post ran a story last week about some 200 retired generals and admirals who sent a letter to Congress “urging lawmakers to reject the Iran nuclear agreement, which they say threatens national security.” There are legitimate arguments for and against this deal, but there was one argument expressed in this story that was so dangerously wrongheaded about the real threats to America from the Middle East, it needs to be called out.

That argument was from Lt. Gen. Thomas McInerney, the retired former vice commander of U.S. Air Forces in Europe, who said of the nuclear accord: “What I don’t like about this is, the number one leading radical Islamic group in the world is the Iranians. They are purveyors of radical Islam throughout the region and throughout the world. And we are going to enable them to get nuclear weapons.”

Sorry, General, but the title greatest “purveyors of radical Islam” does not belong to the Iranians. Not even close. That belongs to our putative ally Saudi Arabia.

[snip]

But if you think Iran is the only source of trouble in the Middle East, you must have slept through 9/11, when 15 of the 19 hijackers came from Saudi Arabia. Nothing has been more corrosive to the stability and modernization of the Arab world, and the Muslim world at large, than the billions and billions of dollars the Saudis have invested since the 1970s into wiping out the pluralism of Islam — the Sufi, moderate Sunni and Shiite versions — and imposing in its place the puritanical, anti-modern, anti-women, anti-Western, anti-pluralistic Wahhabi Salafist brand of Islam promoted by the Saudi religious establishment.

Mind you, I’m not sure I’d say “nothing has been more corrosive” than Saudi extremism. After all, serial US invasions are pretty high up on that list.

But the two together — Saudi complicity and US action — sure do a pretty good job of destabilizing the Middle East.

In Historic Settlement, CA Dramatically Changes Its Solitary Confinement Practices

CA has long had a practice of putting gang affiliates in solitary confinement, not for any behavioral purposes, but to coerce people to inform on their gang-mates. Back in 2012, a group of prisoners — Todd Ashker, Sitawa Nantambu Jamaa, Luis Esquivel, George Franco, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, spanning several affiliations — sued to end the practice. Along the way they’ve also engaged in hunger strikes to call attention to the practice.

The suit just settled. Within short order, almost all of the prisoners who’ve been in long term solitary will be released into the general population. Solitary will be behaviorally based going forward, rather than affiliation based. For those put in solitary for behavioral issues, there will be a designated step-down process, and they’ll get significantly more out-of-cell time than currently. There will be new group housing alternative to solitary. And the prisoners will be a key part of ensuring compliance with this settlement.

The joint statement from the plaintiffs emphasizes the degree to which they won this settlement by working together.

This settlement represents a monumental victory for prisoners and an important step toward our goal of ending solitary confinement in California, and across the country. California’s agreement to abandon indeterminate SHU confinement based on gang affiliation demonstrates the power of unity and collective action. This victory was achieved by the efforts of people in prison, their families and loved ones, lawyers, and outside supporters. Our movement rests on a foundation of unity: our Agreement to End Hostilities. It is our hope that this groundbreaking agreement to end the violence between the various ethnic groups in California prisons will inspire not only state prisoners, but also jail detainees, county prisoners and our communities on the street, to oppose ethnic and racial violence. From this foundation, the prisoners’ human rights movement is awakening the conscience of the nation to recognize that we are fellow human beings. As the recent statements of President Obama and of Justice Kennedy illustrate, the nation is turning against solitary confinement. We celebrate this victory while, at the same time, we recognize that achieving our goal of fundamentally transforming the criminal justice system and stopping the practice of warehousing people in prison will be a protracted struggle. We are fully committed to that effort, and invite you to join us.

Center for Constitutional Rights has more on the settlement here, including depositions from the plaintiffs dating to last year.

This is really great news. Let’s hope it serves as a model for reform elsewhere.

 

David Petraeus, Whose Greatest Aptitude Lies in Rewriting History

As always in stories involving David Petraeus, this story about his plan to work with al Qaeda to defeat ISIS involves some rewriting or forgetting of history. There’s the fiction that what is usually called the surge but here is at least called co-opting members of al Qaeda “worked.”

The former commander of U.S. forces in Iraq and Afghanistan has been quietly urging U.S. officials to consider using so-called moderate members of al Qaeda’s Nusra Front to fight ISIS in Syria, four sources familiar with the conversations, including one person who spoke to Petraeus directly, told The Daily Beast.

The heart of the idea stems from Petraeus’ experience in Iraq in 2007, when as part of a broader strategy to defeat an Islamist insurgency the U.S. persuaded Sunni militias to stop fighting with al Qaeda and to work with the American military.

The tactic worked, at least temporarily. But al Qaeda in Iraq was later reborn as ISIS, and has become the sworn enemy of its parent organization. Now, Petraeus is returning to his old play, advocating a strategy of co-opting rank-and-file members of al Nusra, particularly those who don’t necessarily share all of core al Qaeda’s Islamist philosophy. [my emphasis]

To be fair to the Daily Beast, they call it a “tactic,” not a strategy, which is correct and part of the problem with it — it provides no path to lasting peace and can easily lead to the metastasis of new violent groups — as DB makes clear happened with the rise of al Qaeda in Iraq. The description of how Petraeus engaged the Sons of Iraq also neglects to mention the financial payoff, which seems important both to understand the play but also its limitations. Thus far, though, DB at least hints as why Petraeus’ plan is so batshit crazy.

Then there’s the silence in the story about how every attempt to train allied troops that Petraeus has been involved with has turned to shit: Iraq, Afghanistan, Libya. That seems worth mentioning.

But I’m most interested in this claim:

Petraeus was the CIA director in early 2011 when the Syrian civil war erupted. At the time, he along with then Secretary of State Hillary Clinton and Defense Secretary Leon Panetta reportedly urged the Obama administration to work with moderate opposition forces. The U.S. didn’t, and many of those groups have since steered toward jihadist groups like the Nusra Front, which are better equipped and have had more success on the battlefield.

While it is true that Obama did not systematically arm rebels in Syria in 2011, it is also a public fact that the CIA was watching (and at least once doing more than that) Qatar and Saudi Arabia move arms from Libya before Petraeus’ departure in 2012, and Obama approved a covert finding to arm “moderate” rebels in April 2013, with CIA implementing that plan in June.

That’s all public and confirmed.

So how is it that we once again are pretending that the CIA — the agency Petraeus led as it oversaw a disastrous intervention in Libya that contributed to radicalization both there and in Syria — didn’t arm purported moderates who turned out not to be?

In other words, the story here should be, “David Petraeus, after overseeing a series of failed training efforts and covert efforts that led to increased radicalization, wants to try again.”

Which would make it even more clear how crazy this idea is.

John Yoo’s Assistance in Starting Iraq War Might Help Obama Avoid an Iran War

Last week, Steven Aftergood released a January 27, 2003 OLC memo, signed by John Yoo, ruling that the Executive Branch could withhold WMD information from Congress even though 22 USC § 3282 requires the Executive to brief the Foreign Relations committees on such information. I had first noted the existence of the memo in this post (though I guessed wrong as to when it was written).

The memo is, even by Yoo’s standards, inadequate and poorly argued. As Aftergood notes, Yoo relies on a Bill Clinton signing statement that doesn’t say what he says it says. And he treats briefing Congress as equivalent to public disclosure.

Critically, a key part of the Yoo’s argument relies on an OLC memo the Reagan Administration used to excuse its failure to tell Congress that it was selling arms to Iran.

Fourth, despite Congress’s extensive powers under the Constitution, Its authorities to legislative and appropriate cannot constitutionally be exercised in a manner that would usurp the President’s authority over foreign affairs and national security. In our 1986 opinion, we reasoned that this principle had three important corollaries: a) Congress cannot directly review the President’s foreign policy decisions; b) Congress cannot condition an appropriation to require the President to relinquish his discretion in foreign affairs; and c) any statute that touches on the President’s foreign affairs power must be interpreted, so as to avoid constitutional questions, to leave the President as much discretion as possible. 10 Op. O.L.C. at 169-70.

That’s one of the things — a pretty central thing — Yoo relies on to say that, in spite of whatever law Congress passes, the Executive still doesn’t have to share matters relating to WMD proliferation if it doesn’t want to.

Thus far, I don’t think anyone has understood the delicious (if inexcusable) irony of the memo — or the likely reasons why the Obama Administration has deviated from its normal secrecy in releasing the memo now.

This memo authorized the Executive to withhold WMD information in Bush’s 2003 State of the Union address

First, consider the timing. I noted above I was wrong about the timing — I speculated the memo would have been written as part of the Bush Administration’s tweaks of Executive Orders governing classification updated in March 2003.

Boy how wrong was I. Boy how inadequately cynical was I.

Nope. The memo — 7 shoddily written pages — was dated January 27, 2003.The day the White House sent a review copy of the State of the Union to CIA, which somehow didn’t get closely vetted. The day before Bush would go before Congress and deliver his constitutionally mandated State of the Union message. The day before Bush would lay out the case for the Iraq War to Congress — relying on certain claims about WMD — including 16 famous words that turned out to be a lie.

The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.

This memo was written during the drafting of the 2003 State of the Union to pre-approve not sharing WMD information known by the Executive Branch with Congress even in spite of laws requiring the Executive share that information.

Now, we don’t know — because Alberto Gonzales apparently didn’t tell Yoo — what thing he was getting pre-authorization not to tell Congress about. Here’s what the memo says:

It has been obtained through sensitive intelligence sources and methods and concerns proliferation activities that, depending upon information not yet available, may be attributable to one or more foreign nations. Due to your judgment of the extreme sensitivity of the information and the means by which it was obtained, you have not informed us about the nature of the information, what nation is involved, or what activities are implicated. We understand, however, that the information is of the utmost sensitivity and that it directly affects the national security and foreign policy interests of the United States. You have also told us that the unauthorized disclosure of the information could directly injure the national security, compromise intelligence sources and methods, and potentially frustrate sensitive U.S. diplomatic, military, and intelligence activities.

Something about WMD that another nation told us that is too sensitive to share with Congress — like maybe the Brits didn’t buy the Niger forgery documents anymore?

In any case, we do know from the SSCI Report on Iraq Intelligence that an INR analyst had already determined the Niger document was a forgery.

On January 13, 2003, the INR Iraq nuclear analyst sent an e-mail to several IC analysts outlining his reasoning why, “the uranium purchase agreement probably is a hoax.” He indicated that one of the documents that purported to be an agreement for a joint military campaign, including both Iraq and Iran, was so ridiculous that it was “clearly a forgery.” Because this document had the same alleged stamps for the Nigerien Embassy in Rome as the uranium documents, the analyst concluded “that the uranium purchase agreement probably is a forgery.” When the CIA analyst received the e-mail, he realized that WINP AC did not have copies of the documents and requested copies from INR. CIA received copies of the foreign language documents on January 16, 2003.

Who knows? Maybe the thing Bush wanted to hide from Congress, the day before his discredited 2003 State of the Union, didn’t even have to do with Iraq. But we know there has been good reason to question whether Bush’s aides deliberately misinformed Congress in that address, and now we know John Yoo pre-approved doing so.

This memo means Obama doesn’t have to share anything about the Iran deal it doesn’t want to

Here’s the ironic part — and one I only approve of for the irony involved, not for the underlying expansive interpretation of Executive authority.

By releasing this memo just a week before the Iran deal debate heats up, the Obama Administration has given public (and Congressional, to the extent they’re paying attention) notice that it doesn’t believe it has to inform Congress of anything having to do with WMD it deems too sensitive. John Yoo says so. Reagan’s OLC said so, in large part to ensure that no one would go to prison for disobeying Congressional notice requirements pertaining to Iran-Contra.

If you think that’s wrong, you have to argue the Bush Administration improperly politicized intelligence behind the Iraq War. You have to agree that the heroes of Iran-Contra — people like John Poindexter, who signed onto a letter opposing the Iran deal — should be rotting in prison. That is, the opponents of the Iran deal — most of whom supported both the Iraq War and Iran-Contra — have to argue Republican Presidents acted illegally in those past actions.

Me? I do argue Bush improperly withheld information from Congress leading up to the Iraq War. I agree that Poindexter and others should have gone to prison in Iran-Contra.

I also agree that Obama should be forthcoming about whatever his Administration knows about the terms of the Iran deal, even while I believe the deal will prevent war (and not passing the deal will basically irretrievably fuck the US with the international community).

A key thing that will be debated extensively in coming days — largely because the AP, relying on an echo chamber of sources that has proven wrong in the past, published an underreported article on it — is whether the inspection of Parchin is adequate. Maybe that echo chamber is correct, and the inspection is inadequate. More importantly, maybe it is the case that people within the Administration — in spite of IAEA claims that it has treated that deal with the same confidentiality it gives to other inspection protocols made with inspected nations  — know the content of the Parchin side agreement. Maybe the Administration knows about it, and believes it to be perfectly adequate, because it was spying on the IAEA, like it long has, but doesn’t want the fact that it was spying on IAEA to leak out. Maybe the Administration knows about the Parchin deal but has other reasons not to worry about what Iran was allegedly (largely alleged by AP’s sources on this current story) doing at Parchin.

The point is, whether you’re pro-Iran deal or anti-Iran deal, whether you’re worried about the Parchin side agreement or not, John Yoo gave Barack Obama permission to withhold it from Congress, in part because Reagan’s OLC head gave him permission to withhold Iran-Contra details from Congress.

I believe this document Yoo wrote to help Bush get us into the Iraq War may help Obama stay out of an Iran war.

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emptywheel @theurbansherpa she definitely used to. But then she got a better Parish.
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bmaz This is too laugh. Come on, seriously?? https://t.co/V8G1sq5gCZ
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emptywheel @lawrencelebin Absolutely not my place to judge people's faith.
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bmaz .@McCannSportsLaw No, having JD does not mean diddly squat. It is whether you have practiced enough to have a clue about what you are doing
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emptywheel @theurbansherpa You accusing your mom of squirming at Mass? She's not really the squirming type.
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bmaz Welp, @ESPN, @MortReport + Lester Munson are not just heinous stenographers of lies, but duplicitous on law too http://t.co/YY6PCX9Ve0
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emptywheel @SportsbySharona Tebow's job might better be described as 2-point conversion captain, not backup QB. @tyschalter
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emptywheel @TheTabbasco Yup. That's why I said he'd partly listen to those bits. @LOLGOP
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emptywheel @theurbansherpa I'd love to see them go to Mass bc they'd prolly squirm a lot. And Huff and Puff.
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emptywheel @WilliamOckhamTx Now that you mention it it does say 2016 inside. @barryeisler
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bmaz @RMFifthCircuit No! Still wondering about that,
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emptywheel Will Sammy Alito go to Mass? Will Scalia go to Mass? Will Clarence Thomas go to Mass??? Since this is all newsworthy and whatnot...
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