Ben Wittes has started a series of posts on how to tyrant-proof the presidency. His first post argues that Jennifer Granick’s worries about surveillance and Conor Friedersdorf’s worries about drone-killing are misplaced. The real risk, Wittes argues, comes from DOJ.
What would a president need to do to shift the Justice Department to the crimes or civil infractions committed—or suspected—by Trump critics and opponents? He would need to appoint and get confirmed by the Senate the right attorney general. That’s very doable. He’d want to keep his communications with that person limited. An unspoken understanding that the Justice Department’s new priorities include crimes by the right sort of people would be better than the sort of chortling communications Richard Nixon and John Mitchell used to have. Want to go after Jeff Bezos to retaliate for the Washington Post‘s coverage of the campaign? Develop a sudden trust-busting interest in retailers that are “too big”; half the country will be with you. Just make sure you state your non-neutral principles in neutral terms.
There are other reasons to expect a politically abusive president to focus on the Justice Department and other domestic, civilian regulatory and law enforcement agencies: one is that the points of contact between these agencies and the American people are many, whereas the population’s points of contact with the intelligence community are few. The delusions of many civil libertarians aside, the intelligence community really does focus its activities overseas. To reorient it towards domestic oppression would take a lot of doing. It also has no legal authority to do things like arresting people, threatening them with long prison terms, fining them, or issuing subpoenas to everyone they have ever met. By contrast, the Justice Department has outposts all over the country. Its focus is primarily domestic. It issues authortitative legal guidance within the executive branch to every other agency that operates within the country. And it has the ability to order people to produce material and testify about whatever it wants to investigate.
What’s more, when it receives such material, it is subject to dramatically laxer rules as to its use than is the intelligence community. Unlike, say, when NSA collects material under Section 702, when the Justice Department gets material under a grand jury subpoena, there aren’t a lot of use restrictions (other than Rule 6(e)’s prohibition against leaking it); and there is no mandatory period after which DOJ has to destroy it. It has countless opportunities, in other words, to engage in oppressive activities, and it is largely not law but norms and human and institutional decency that constrain it.
I don’t necessarily disagree with the premise. Indeed, I’ve argued it for years — noting, for example, that a targeted killing in the US would look a lot more like the killing of Imam Luqman Abdullah in 2009 (or the killing of Fred Hampton in 1969) than drone killing of Anwar al-Awlaki in 2011 (given that Abdullah’s selling of stolen items got treated as terrorism in part because of his positive statements about Awlaki, it is not inconceivable FBI started infiltrating his mosque because of SIGINT).
My gripe (I have to have gripes because it is Wittes) is on two points. First, Wittes far overestimates how well the protections against abuse currently work. He seems to believe the Levi Guidelines remain in place unchanged, that the 2008 and 2011 and serial secret changes to the Domestic Investigations and Operations Guide since then have not watered down limits on investigations for protected activities. He suggests it was a good thing to use prosecutorial discretion to chase drugs in the 1990s and terrorism in the 2000s, and doesn’t consider why the rich donors who’ve done as much damage as terrorists to the country — the banksters, even those that materially supported terrorists — have gotten away with wrist-slap fines. It was not a good thing to remain obsessed with terrorists while the banksters destroyed our economy through serial global fraud (a point made even by former FBI agents).
We already have a dramatically unequal treatment of homegrown extremists in this country based on religion (compare the treatment of the Malheur occupiers with that of any young Muslim guy tweeting about ISIS who then gets caught in an FBI sting). We already treat Muslims (and African Americans and — because we’re still chasing drugs more than we should — Latinos) differently in this country, even though the guy running for President on doing so as a campaign plank isn’t even in office yet!
The other critical point Wittes missed in his claim that “delusional” civil libertarians don’t know that “the intelligence community really does focus its activities overseas” is that DOJ, in the form of FBI and DEA, is the Intelligence Community, and their intelligence focus is not exclusively overseas (nor is the intelligence focus of other IC members DHS — which has already surveilled Black Lives Matter activists — and Treasury). The first dragnet was not NSA’s, but the DEA one set up under Bill Clinton. One big point of Stellar Wind (which is what Wittes mocked Granick for focusing on) was to feed FBI tips of people the Bureau should investigate, based solely on their associations. And while Wittes is correct that “when the Justice Department gets material under a grand jury subpoena, there aren’t a lot of use restrictions (other than Rule 6(e)’s prohibition against leaking it); and there is no mandatory period after which DOJ has to destroy it,” it is equally true of when FBI gets raw 702 data collected without grand jury scrutiny.
FBI can conduct an assessment to ID the racial profile of a community with raw 702 data, it can use it to find and coerce potential informants, and it can use it for non-national security crimes. That’s the surveillance Wittes says civil libertarians are delusional to be concerned about, being used with inadequate oversight in the agency Wittes himself says we need to worry about.
Four different times in his post, Wittes contrasts DOJ with the intelligence community, without ever considering what it means that DOJ’s components FBI and DEA are actually part of it, that part of it that takes data obtained from NSA’s surveillance and uses it (laundered through parallel construction) against Americans. You can’t contrast the FBI’s potential impact with that of the IC as Wittes does, because the FBI is (one of) the means by which IC activities impact Americans directly.
Yes, DOJ is where President Trump (and President Hillary) might abuse their power most directly. But in arguing that, Wittes is arguing that the President can use the intelligence community abusively.
Update: For those who haven’t already read it, this post, Sean Penn, Intelligence Dangle, will help explain this one.
The frenzy among journalists about Sean Penn’s Chapo Guzmán story has continued over two days now. As is typical of press frenzies, it is largely divorced from the actual details involved.
So I’d like to revisit the question of what Penn may have withheld from his story — because the press is frenzying over the wrong thing.
The Rolling Stone says “Some names have had to be changed, locations not named.” As with the rest of the disclosure statement, the language here is notable, as the passive voice avoids saying not only whose names got withheld, but who made the decision to withhold them.
Subsequent reporting, handed over from Mexican intelligence, makes clear that authorities know those details pertaining to Chapo’s side. Kate del Castillo and Penn first went to Guadalajara, where they stayed in Villa Ganz. From there they were driven to an air strip in Tepic, Nayarait, where they were flown in a private plane to Cosalá, Sinaloa and then driven to a location on the border of Durango. Del Castillo’s primary interlocutor is named as Andrés Granados Flores, though she also met with Óscar Manuel Gómez Núñez (the latter of whom was arrested weeks after the Penn meeting as the mastermind of Chapo’s escape last year).
Penn’s own narrative makes it clear that both Alfredo and Iván Guzmán, Chapo’s sons, attended the meeting. The only Sinaloans whose names he may have changed were “Alonzo” (who is likely to be Granados) and, possibly, some bodyguard type in Chapo’s presence, Rodrigo. He may have protected the identity of others, but not by changing their name, as the disclosure describes.
In other words, the key players in this story whose names were changed were not Chapo’s men, but the two men who linked him with del Castillo in the first place, Espinoza (whom I call Spiny) and El Alto. It is true Rolling Stone did not name locations; at it turns out, Mexican authorities were following so closely, with cameras, anyway, hiding the locations didn’t help Chapo much.
Curiously, those two men, Spiny and El Alto, don’t show up in the pictures released to the press, even though the caption on one describes them as del Castillo, Penn, and “their companions.”
So the Rolling Stone protected these mysterious interlocutors more religiously than they did Chapo’s family. As Jann Wenner described to the NYT (which, of course, played a complicit role in magnifying all this), Chapo didn’t actually have an interest in “editing” Penn’s work.
Mr. Guzmán, he said, did not speak English and seemed to have little interest in editing Mr. Penn’s work. “In this case, it was a small thing to do in exchange for what we got,” Mr. Wenner said.
But there is one detail, in addition to the locations, that Penn did withhold, purportedly at the request of Chapo, one which I haven’t seen any participant in the press frenzy complain about.
He cites (but asks me not to name in print) a host of corrupt major corporations, both within Mexico and abroad. He notes with delighted disdain several through which his money has been laundered, and who take their own cynical slice of the narco pie.
This is particularly odd, given that the complicity of Americans, including our banks, is one theme of Penn’s own framing of this adventure.
The laws of conscience, which we pretend to be derived from nature, proceed from custom.” —Montaigne
Still, today, there are little boys in Sinaloa who draw play-money pesos, whose fathers and grandfathers before them harvested the only product they’d ever known to morph those play pesos into real dollars. They wonder at our outrage as we, our children, friends, neighbors, bosses, banks, brothers and sisters finance the whole damn thing.
If Penn is sincere in his stated desire to end the war on drugs, ending the profits for American banks tied to illicit trafficking would need to be one of the first steps.
But he doesn’t name those companies that are laundering Chapo’s money, which will continue to be laundering Sinaloa cartel money even as Guzmán gets removed from the network.
Of course, Spiny and El Alto probably share Chapo’s desire to keep those names out of print, in part because they’re part of the power structure that the banks bolster, in part because banks sometimes narc on their customers to save their own hides.
But it’s funny how the press, too, seems uninterested in learning the names of the banks that continue to prop up both our own country’s power structure as well as facilitate traffickers like Guzmán.
“In these technical investigations, people think they are too good to do the stupid old-school stuff. But I’m like, ‘Well, that stuff still works.’ ”
The NYT got this and many other direct quotes from IRS agent Gary Alford for a complimentary profile of him that ran on Christmas day. According to the story, Alford IDed Ross Ulbricht as a possible suspect for the Dread Pirate Roberts — the operator of the Dark Web site Silk Road — in early June 2013, but it took until September for Alford to get the prosecutor and DEA and FBI Agents working the case to listen to him. The profile claims Alford’s tip was “crucial,” though a typo suggests NYT editors couldn’t decide whether it was the crucial tip or just crucial.
In his case, though, the information he had was the crucial [sic] to solving one of the most vexing criminal cases of the last few years.
On its face, the story (and Alford’s quote) suggests the FBI is so entranced with its hacking ability that it has neglected very, very basic investigative approaches like Google searches. Indeed, if the story is true, it serves as proof that encryption and anonymity don’t thwart FBI investigations as much as Jim Comey would like us to believe when he argues the Bureau needs to back door all our communications.
But I don’t think the story tells the complete truth about the Silk Road investigation. I say that, first of all, because of the timing of Alford’s efforts to get others to further investigate Ulbricht. As noted, the story describes Alford IDing Ulbricht as a potential suspect in early June 2013, after which he put Ulbricht’s name in a DEA database of potential suspects, which presumably should have alerted anyone else on the team that US citizen Ross Ulbricht was a potential suspect in the investigation.
Mr. Alford’s preferred tool was Google. He used the advanced search option to look for material posted within specific date ranges. That brought him, during the last weekend of May 2013, to a chat room posting made just before Silk Road had gone online, in early 2011, by someone with the screen name “altoid.”
“Has anyone seen Silk Road yet?” altoid asked. “It’s kind of like an anonymous Amazon.com.”
The early date of the posting suggested that altoid might have inside knowledge about Silk Road.
During the first weekend of June 2013, Mr. Alford went through everything altoid had written, the online equivalent of sifting through trash cans near the scene of a crime. Mr. Alford eventually turned up a message that altoid had apparently deleted — but that had been preserved in the response of another user.
In that post, altoid asked for some programming help and gave his email address: [email protected]. Doing a Google search for Ross Ulbricht, Mr. Alford found a young man from Texas who, just like Dread Pirate Roberts, admired the free-market economist Ludwig von Mises and the libertarian politician Ron Paul — the first of many striking parallels Mr. Alford discovered that weekend.
When Mr. Alford took his findings to his supervisors and failed to generate any interest, he initially assumed that other agents had already found Mr. Ulbricht and ruled him out.
But he continued accumulating evidence, which emboldened Mr. Alford to put Mr. Ulbricht’s name on the D.E.A. database of potential suspects, next to the aliases altoid and Dread Pirate Roberts.
At the same time, though, Mr. Alford realized that he was not being told by the prosecutors about other significant developments in the case — a reminder, to Mr. Alford, of the lower status that the I.R.S. had in the eyes of other agencies. And when Mr. Alford tried to get more resources to track down Mr. Ulbricht, he wasn’t able to get the surveillance and the subpoenas he wanted.
Alford went to the FBI and DOJ with Ulbricht’s ID in June 2013, but FBI and DOJ refused to issue even subpoenas, much less surveil Ulbricht.
But over the subsequent months, Alford continued to investigate. In “early September” he had a colleague do another search on Ulbricht, which revealed he had been interviewed by Homeland Security in July 2013 for obtaining fake IDs.
In early September, he asked a colleague to run another background check on Mr. Ulbricht, in case he had missed something.
The colleague typed in the name and immediately looked up from her computer: “Hey, there is a case on this guy from July.”
Agents with Homeland Security had seized a package with nine fake IDs at the Canadian border, addressed to Mr. Ulbricht’s apartment in San Francisco. When the agents visited the apartment in mid-July, Mr. Ulbricht answered the door, and the agents identified him as the face on the IDs, without having any idea of his potential links to Silk Road.
When Alford told prosecutor Serrin Turner of the connection (again, this is September 2013), the AUSA finally did his own search in yet another database, the story claims, only to discover Ulbricht lived in the immediate vicinity of where Dread Pirate Roberts was accessing Silk Road. And that led the Feds to bust Ulbricht.
I find the story — the claim that without Alford’s Google searches, FBI did not and would not have IDed Ulbricht — suspect for two reasons.
First, early June is the date that FBI Agent Christopher Tarbell’s declaration showed (but did not claim) FBI first hacked Silk Road. That early June date was itself suspect because Tarbell’s declaration really showed data from as early as February 2013 (which is, incidentally, when Alford was first assigned to the team). In other words, while it still seems likely FBI was always lying about when it hacked into Silk Road, the coincidence between when Alford says he went to DOJ and the FBI with Ulbricht’s ID and when the evidence they were willing to share with the defense claimed to have first gotten a lead on Silk Road is of interest. All the more so given that the FBI claimed it could legally hack the server because it did not yet know the server was run by an American, and so it treated the Iceland-based server as a foreigner for surveillance purposes.
One thing that means is that DOJ may not have wanted to file paperwork to surveil Ulbricht because admitting they had probable cause to suspect an American was running Silk Road would make their hack illegal (and/or would have required FBI to start treating Ulbricht as the primary target of the investigation; it seems FBI may have been trying to do something else with this investigation). By delaying the time when DOJ took notice of the fact that Silk Road was run by an American, they could continue to squat on Silk Road without explaining to a judge what they were doing there.
The other reason I find this so interesting is because several of the actions to which corrupt DEA agent Carl Force pled guilty — selling fake IDs and providing inside information — took place between June and September 2013, during the precise period when everyone was ignoring Alford’s evidence and the fact that he had entered Ulbricht’s name as a possible alias for the Dread Pirate Roberts into a DEA database. Of particular note, Force’s guilty plea only admitted to selling the fake IDs for 400 bitcoin, and provided comparatively few details about that action, but the original complaint against Force explained he had sold the IDs for 800 bitcoin but refunded Ulbricht 400 bitcoin because “the deal for the fraudulent identification documents allegedly fell through” [emphasis mine].
Were those fake IDs that Force sold Ulbricht the ones seized by Homeland Security and investigated in July 2013? Did the complaint say the deal “allegedly” fell through because it didn’t so much fall through as get thwarted? Did something — perhaps actions by Force — prevent other team members from tying that seizure to Ulbricht? Or did everyone know about it, but pretend not to, until Alford made them pay attention (perhaps with a communications trail that other Feds couldn’t suppress)? Was the ID sale part of the investigation, meant to ID Ulbricht’s identity and location, but Force covered it up?
In other words, given the record of Force’s actions, it seems more likely that at least some people on the investigative team already knew what Alford found in a Google search, but for both investigative (the illegal hack that FBI might have wanted to extend for other investigative reasons) and criminal (the money Force was making) reasons, no one wanted to admit that fact.
Now, I’m not questioning the truth of what Alford told the NYT. But even his story (which is corroborated by people “briefed on the investigation,” but only one person who actually attended any of the meetings for it; most of those people are silent about Alford’s claims) suggests there may be other explanations why no one acted on his tip, particularly given the fact that he appears to have been unable to do database searches himself and that they refused to do further investigation into Ulbricht. (I also wonder whether Alford’s role explains why the government had the IRS in San Francisco investigate Force and corrupt Secret Service Agent Shaun Bridges, rather than New York, where agents would have known these details.)
Indeed, I actually think this complimentary profile might have been a way for Alford to expose further cover-ups in the Silk Road investigation without seeming to do so for any but self-interested reasons. Bridges was sentenced on December 7. Ulbricht was originally supposed to have submitted his opening appellate brief — focusing on Fourth Amendment issues that may be implicated by these details — on December 11, but on December 2, the court extended that deadline until January 12.
I don’t know whether Ulbricht’s defense learned these details. I’m admittedly not familiar enough with the public record to know, though given the emphasis on Tarbell’s declaration as the explanation for how they discovered Ulbricht and the NYT’s assertion Alford’s role and the delay was “largely left out of the documents and proceedings that led to Mr. Ulbricht’s conviction and life sentence this year,” I don’t think it is public. But if they didn’t, then the fact that the investigative team went out of their way to avoid confirming Ulbricht’s readily accessible identity until at least three and probably seven months after they started hacking Silk Road, even while key team members were stealing money from the investigation, might provide important new details about the government’s actions.
And if Alford gets delayed credit for doing simple Google searches as a result, all the better!
Back in 2010, Daniel Rigmaiden forced the government to reveal it had used a Stingray to bust him for tax fraud in 2008. Apparently, even in spite of blowing their prosecution of Rigmaiden, the IRS liked what it did, because in 2011, they bought their own Stingray, as John Koskinen revealed in a response to a Ron Wyden question on the topic.
Koskinen reveals the IRS used its Stingray between 2011 or 2012 and the present in this way:
In other words, over the course of its almost 4 year life, the Stingray has tracked just 44 devices.
That seems to suggest this tracking isn’t just a quick one-off, otherwise they wouldn’t need another device, as they’re currently in the process of getting.
Perhaps however, this is a testament to the obsolescence of these devices. In his response to Wyden, Koskinen doesn’t mention the Stingray IRS bought in 2009, suggesting it may not be in use anymore.
The government is sure blowing through these expensive surveillance toys in quick succession.
Update: My apologies to Rigmaiden for getting his first name wrong and thanks to Chris Soghoian for spotting it.
Morocco arrested a Saudi prince as he was attempting to leave Casablanca’s airport and fly to Paris on Thursday. The report on the arrest does not explain why he was arrested — unlike the Saudi prince arrested in the US in September for sexual assault or the Saudi prince arrested in Lebanon in October for having 2 tons of amphetamines in his private plane. Nor does it provide his name (again, unlike those other reports).
But it does say he was arrested on an Interpol warrant issued by Riyadh.
A prince from Saudi Arabia was arrested by Moroccan authorities at Mohammed V Airport in Casablanca on Thursday and placed in custody at the prison of Salé, according to Moroccan daily Al Massae’s weekend edition.
The Saudi prince was about to board a Casablanca-Paris flight when border police discovered that his identity matched that of a man wanted by Interpol office in Saudi Arabia for whom an international arrest warrant had been issued.
It’s unusual that Saudi Arabia arrests a member of the royal family, and when I read it I wondered whether it might be tied to recent calls for a coup. I think that’s still a possibility.
Equally likely, it relates to that massive drug bust in Lebanon last month. That would be interesting because that bust involved Captagon, a drug closely tied to ISIS.
They were allegedly “attempting to smuggle about two tons of Captagon pills and some cocaine”, a security source was quoted as saying.
Captagon is a brand name for the widely used amphetamine phenethylline.
It is the drug of choice for front-line fighters on both sides in the Syrian war, allowing a heightened state of alertness.
It is unclear where the pills allegedly found in Beirut were ultimately to be sold, although the plane was said to be heading back to Saudi Arabia.
In any case, I don’t have any theory on this arrest right now, but in retrospect wanted to note the arrest here.
Chuck Rosenberg, head of the U.S. Drug Enforcement Agency, said Wednesday that he agrees with FBI Director James Comey that police officers are reluctant to aggressively enforce laws in the post-Ferguson era of capturing police activity on smartphones and YouTube.
“I think there’s something to it,” Rosenberg said during a press briefing on drug statistics at DEA headquarters in Arlington. “I think he’s spot on. I’ve heard the same thing.”
… I reminded that Rosenberg is also Comey’s former Chief of Staff, from when Comey was Deputy Attorney General in the Bush Administration.
Which is why I find it interesting that the White House has suggested President Obama raised the issue with Comey in a meeting this week.
Asked whether Mr. Obama would call in the two men to discuss the issue privately, Mr. Earnest noted that Mr. Comey met with the president last week, and he strongly hinted that the president chided his F.B.I. director on the subject.
“The president is certainly counting on Director Comey to play a role in the ongoing debate about criminal justice reform,” Mr. Earnest said, suggesting that Mr. Obama expected Mr. Comey to uphold the president’s view on the matter.
While he was Comey’s CoS, remember, Comey made sure he was in the loop on torture discussions he otherwise wouldn’t be, as Comey made an effort to limit some of what got approved in the May 2005 torture memos. That was partly to make sure the torturers didn’t use his absence to push through the memo, but also partly (it seems clear now) to lay out his own record of events.
Given the timing (and the distinct possibility Rosenberg endorsed Comey’s Ferguson Effect views after Comey got chewed out by the President), this feels like a concerted bureaucratic stand. Of course, these two allies’ role atop aggressive law enforcement agencies, Comey just 2 years into a 10-year term, stubbornly repeating police claims, is a pretty powerful bureaucratic stand for cops who want to avoid oversight.
For at least the second time, Jim Comey has presented himself as a Ferguson Effect believer, someone who accepts data that has been cherry picked to suggest a related rise in violent crime in cities across the country (I believe that in Ferguson itself, violent crime dropped last month, but whatever).
I have spoken of 2014 in this speech because something has changed in 2015. Far more people are being killed in America’s cities this year than in many years. And let’s be clear: far more people of color are being killed in America’s cities this year.
And it’s not the cops doing the killing.
We are right to focus on violent encounters between law enforcement and civilians. Those incidents can teach all of us to be better.
But something much bigger is happening.
Most of America’s 50 largest cities have seen an increase in homicides and shootings this year, and many of them have seen a huge increase. These are cities with little in common except being American cities—places like Chicago, Tampa, Minneapolis, Sacramento, Orlando, Cleveland, and Dallas.
In Washington, D.C., we’ve seen an increase in homicides of more than 20 percent in neighborhoods across the city. Baltimore, a city of 600,000 souls, is averaging more than one homicide a day—a rate higher than that of New York City, which has 13 times the people. Milwaukee’s murder rate has nearly doubled over the past year.
Yesterday, Comey flew to Chicago and repeated something its embattled Mayor recently floated (even while Bill Bratton, who is a lot more experienced at policing than Rahm Emanuel, has publicly disputed it): that cops are not doing their job because people have started taking videos of police interactions.
I’ve also heard another explanation, in conversations all over the country. Nobody says it on the record, nobody says it in public, but police and elected officials are quietly saying it to themselves. And they’re saying it to me, and I’m going to say it to you. And it is the one explanation that does explain the calendar and the map and that makes the most sense to me.
Maybe something in policing has changed.
In today’s YouTube world, are officers reluctant to get out of their cars and do the work that controls violent crime? Are officers answering 911 calls but avoiding the informal contact that keeps bad guys from standing around, especially with guns?
I spoke to officers privately in one big city precinct who described being surrounded by young people with mobile phone cameras held high, taunting them the moment they get out of their cars. They told me, “We feel like we’re under siege and we don’t feel much like getting out of our cars.”
I’ve been told about a senior police leader who urged his force to remember that their political leadership has no tolerance for a viral video.
So the suggestion, the question that has been asked of me, is whether these kinds of things are changing police behavior all over the country.
And the answer is, I don’t know. I don’t know whether this explains it entirely, but I do have a strong sense that some part of the explanation is a chill wind blowing through American law enforcement over the last year. And that wind is surely changing behavior.
Let’s, for the moment, assume Comey’s anecdote-driven impression, both of the Ferguson Effect and of the role of cameras, is correct (to his credit, in this speech he called for more data; he would do well to heed his own call on that front). Let’s assume that all these cops (and mayors, given that Comey decided to make this claim in Rahm’s own city) are correct, and cops have stopped doing the job we’re all paying them to do because they’re under rather imperfect but nevertheless increased surveillance.
We’ll take you at your word, Director Comey.
If Comey’s right, what he’s describing is the chilling effect of surveillance, the way in which people change their behavior because they know they will be seen by a camera. That Comey is making such a claim is all the more striking given that the surveillance cops are undergoing is targeted surveillance, not the kind of dragnet surveillance (such as the use of planes to surveil the Baltimore and Ferguson protests, which he acknowledged this week) his agency and the NSA subject Americans to.
Sorry, sir! Judge after judge has ruled such claims to be speculative and therefore invalid in a court of law, most recently when T.S. Ellis threw out the ACLU’s latest challenge to the dragnet yesterday!
I actually do think there’s something to the chilling effect of surveillance (though, again, what’s happening to cops is targeted, not dragnet). But if Comey has a problem with that, he can’t have it both ways, he needs to consider the way in which the surveillance of young Muslim and African-American men leads them to do things they might not otherwise do, the way in which it makes targets of surveillance feel under siege, he needs to consider how the surveillance his Agents undertake actually makes it less likely people will engage in the things they’re supposed to do, like enjoy free speech, a robust criminal defense unrestricted by spying on lawyers, like enjoy privacy.
Comey adheres to a lot of theories, including the Ferguson Effect.
But as of yesterday, he is also on the record as claiming that surveillance has a chilling effect. Maybe he should consider the implications of what he is saying for the surveillance his own agency has us under? If the targeted surveillance of cops is a problem, isn’t the far less targeted surveillance he authorizes a bigger problem?
[See update below: Lynch says she didn’t mean how these statements came out.]
It’s bad enough that Attorney General Loretta Lynch refuses to force police to keep records on how many people they kill.
In a conversation with NBC journalist Chuck Todd on a range of criminal justice issues, Lynch said on Thursday that she does not support a federal mandate to report people killed by police.
“One of the things we are focusing on at the Department of Justice is not trying to reach down from Washington and dictate to every local department how they should handle the minutia of record keeping, but we are stressing to them that these records must be kept,” she said at the Washington Ideas Forum, hosted by AtlanticLIVE and the Aspen Institute.
It’s her reasoning I find really troubling.
Lynch said the Justice Department does “encourage” local departments to maintain records on police shootings but that improving police-community relations is more important. She noted that the small size of the average police department could make record-keeping difficult.
“The statistics are important, but the real issues are: ‘what steps are we all taking to connect communities … with police and back with government?’” she said.
It’s all well and good to say communities and their cops just need to get along.
Here’s what the crime story said: “Among some experts and rank-and-file officers, the notion that less aggressive policing has emboldened criminals — known as the “Ferguson effect” in some circles — is a popular theory for the uptick in violence.” A paragraph later, the story continues: “Others doubt the theory or say data has not emerged to prove it.” Two experts are quoted, and the story moves on from there.
Bill Michtom of Portland, Ore., wrote to me about it, calling it a “classic example of false equivalence.” Ta-Nehisi Coates called the suggestion of a Ferguson effect “utterly baseless” in a piece for The Atlantic, noting that one of the experts quoted said that the rise in violent crime in St. Louis had begun before the large protests last year over a white police officer’s fatal shooting of an unarmed black teenager.
One of the story’s reporters, Monica Davey, and the national editor, Alison Mitchell, strongly disagree that this is false equivalence or that it was misleading to readers. In fact, they told me, it would be wrong of The Times not to report something that some police officers are identifying as part of their mind-set.
Ms. Davey, who agrees that false balance is infuriating and must be avoided, said in an email that this example simply doesn’t fit the description. For one thing, she said, there is no established truth here: “The question about the validity of this theory simply has not been definitively answered in the way that the earth’s shape has.” And, she said, “police officers must be given some credence in assessing whether they themselves feel that they are behaving differently now — the essence of what some of them have called the ‘Ferguson effect.’ ”
Or, as Ms. Mitchell puts it: “We have the police suggesting that police are pulling back — should we not report that?”
My view is that the introduction of this explosive idea didn’t serve readers well because, in this context, it was mentioned briefly, sourced vaguely, and then countered by disagreement. If police officers are indeed pulling back from their duties, and are willing to be identified and quoted, and if there’s evidence to back it up, that would be worth a full exploration in a separate article. But this glancing treatment could easily have left readers baffled, at the very least.
Things aren’t going to improve so long as cops can just make shit up, in spite of data to the contrary.
Just as importantly, since 9/11, the mandate throughout the Federal government — and especially for FBI — has been to share information promiscuously, including down to local police departments. Some of that information includes untested leads; some of it includes cyber and terrorist threat assessments.
If Lynch is telling us these local police departments don’t have the ability to handle reporting back and forth from the federal government, than the rest of the info sharing should stop too, because it could violate Americans’ privacy and/or expose intelligence streams.
But we all know that’s not going to happen.
Which means Lynch is supporting an asymmetrical reporting system that can’t be used for oversight of the larger system.
Update: Lynch says her statements last week weren’t what she was trying to say.
The point I was trying to make at that conference related to our overall view of how we deal with police departments as part of our practice of enforcing consent decrees, or working with them and I was trying to make the point that we also have to focus on building community trust which is a very individual – very local – practice. Unfortunately, my comments gave the misperception that we were changing our view in some way about the importance of this data – nothing could be further from the truth. This data is not only vital – we are working closely with law enforcement to develop national consistent standards for collecting this kind of information.
More from her statement:
“The department’s position and the administration’s position has consistently been that we need to have national, consistent data,” said Attorney General Lynch. “This information is useful because it helps us see trends, it helps us promote accountability and transparency,” said Attorney General Lynch. “We’re also going further in developing standards for publishing information about deaths in custody as well, because transparency and accountability are helped by this kind of national data.”
Periodically, Jim Comey invites a group of select journalists in for lunch and eats them alive with his charisma and unsubstantiated claims. The first I noticed came when Comey made some false claims about National Security Letters, without a single journalist correcting him. More recently, Comey claimed FBI had arrested 10 people with ties to ISIS, only two of whom have every publicly appeared.
In this week’s edition, Comey got passionate about a claimed spike in crime.
And in unusually passionate remarks, the FBI director said he was “very concerned about what’s going on now with violent crime and murder rates across the country,” in cities as disparate as Omaha and Milwaukee.
At least in this instance, journalists are getting less credulous, because most (though not CNN) reported that in fact the crime stats released this week show a decline in crime, not a spike, even while they reported that violent crime in “many” cities has spiked.
Newly released federal data suggest a slight dip in violence across the nation in 2014. But Comey said those numbers may not be capturing what’s happening on the ground today. He’s been hearing similar concerns from police chiefs, he said.
Earlier this week, the FBI released data showing violent crime dropped slightly in 2014, but many big city police departments have reported significant jumps in shootings this year compared with last year.
In 2014, the number [of murders in NYC] had dropped to 328 — the lowest number of murders since the New York City Police Department began collecting statistics in 1963.)
None I saw, however, pointed out that the claim of a spike in “many” cities stems from a persistent propaganda effort that has been debunked as cherry-picking. Yes, there are a few cities with alarming spikes in violence, but they should be examined as cities, not as a trend that the FBI’s own data shows is moving in the opposite direction.
In his comments, Comey didn’t endorse the Ferguson effect. But he did say we need to move slowly on criminal justice reform both because of this alleged spike and because crime has gone down (!?!). Still from the HuffPo:
Comey said he didn’t know whether protests against police violence have made it harder for police to do their jobs, a theory that has been dubbed the “Ferguson effect.” “I’m not discounting it, but I just don’t know,” he said, adding that he was “focused on it, trying to figure it out.”
“Some have said police officers aren’t getting out of their cars and talking to gang-bangers on street corners anymore, but I don’t know,” he said. “What I do know is that a whole lot of people are dying. They are, according to the chiefs, overwhelmingly people of color, and we’ve got to care about that.”
The spike in crime made him want to be “thoughtful” on criminal justice reform, Comey added.
“My strong sense is that a significant portion of the change in our world since I was a prosecutor in New York in 1987 is due to law enforcement, but I’m sure there are lots of other things [going on],” he said.
“I just want to make sure that as we reform — first of all, we’re grateful that we actually have the space and time to think and talk about sentencing better, rehabilitating better, and [that] is a product of hard work over the past 25 years — but as we do it, are very, very thoughtful about where we used to be and how we got from that point to here,” Comey said.
As with encryption back doors, the data is not there (on that issue, DOJ simply doesn’t collect data on how often encryption prevents it from accessing data). But that’s not going to stop him from cautioning against criminal justice reform.
At Salon yesterday, I pointed to the most interesting part of the GOP debate on Wednesday — the policy debate over how to deal with addiction. As I point out, one reason this debate is taking place is because New Hampshire is really struggling with heroin addiction right now. But the debate started about pot, not heroin. And even tough on crime candidates like Chris Christie and Jeb Bush struggled to spin their approach as kinder and gentler; Christie pitched his support for decriminalization as another expression of pro-life.
This was the moment, I argued, when the GOP found ways to pitch a more reasonable approach to drugs in GOP ideology (and Rand Paul deserves credit for pushing this).
Even while Christie and Bush, to differing degrees, cling to old-style War on Drug rhetoric, this campaign (and particularly the New Hampshire addiction crisis Bush mentioned) will force real debate about what combination of treatment, decriminalization, legalization, and education might provide some way out of the failed drug war. This discussion framed that dramatic policy shift in rhetoric — states rights and pro life — that Republicans can rally behind.
All this, of course, took place in the Reagan library, the shrine to the man who formally declared the now-failed War on Drugs in 1982. CNN even used his damn plane to ask candidates to project themselves into Reagan’s legacy. “Ronald Reagan, the 40th President, used the plane behind you to accomplish a great many things….How will the world look different once your Air Force One is parked in the hangar of your presidential library?” But one of the most constructive policy discussions in last night’s debate constituted a renunciation, finally, of Reagan’s legacy.
Mind you, the foreign policy and immigration stances of candidates undermines the value of this — few Republicans will give up the excuse of the War on Drugs to big foot in Latin America, no matter how counterproductive that is. And some candidates — such as Trump, who probably hasn’t exactly eschewed drugs all his life — weren’t clamoring to look soft on drugs.
All that said, amid all the talk of starting new wars in the shadow of Saint Ronnie’s plane, I was heartened by a moment that might lead toward ending one.