Is the US Outsourcing Torture, Again?

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As you may recall, one of the most explosive revelations from the Iraq War Logs released by WikiLeaks pertains to US forces ignoring Iraqi torture of other Iraqis.

The biggest headline from Friday’s Wikileaks dump (everywhere but the NYT, anyway) is that the “US ignored torture.” But the way in which an official policy ignoring torture was followed by collaboration with one of Iraq’s torture squads raises the question whether the US involvement in Iraqi torture was more direct.

Did the US “ignore” torture, or “encourage” it?

The basis for the claim that the US ignored torture comes from references to Frago 242, which officially instituted a policy of looking the other way in cases of Iraqi on Iraqi abuse.

This is the impact of Frago 242. A frago is a “fragmentary order” which summarises a complex requirement. This one, issued in June 2004, about a year after the invasion of Iraq, orders coalition troops not to investigate any breach of the laws of armed conflict, such as the abuse of detainees, unless it directly involves members of the coalition. Where the alleged abuse is committed by Iraqi on Iraqi, “only an initial report will be made … No further investigation will be required unless directed by HQ”.

Another cable showed that US forces turned over detainees to an Iraqi unit known to torture.

By the end of 2004, according to the Wikileaks dump, the US was handing over detainees to a US trained group known to torture.

In Samarra, the series of log entries in 2004 and 2005 describe repeated raids by US infantry, who then handed their captives over to the Wolf Brigade for “further questioning”. Typical entries read: “All 5 detainees were turned over to Ministry of Interior for further questioning” (from 29 November 2004) and “The detainee was then turned over to the 2nd Ministry of Interior Commando Battalion for further questioning” (30 November 2004).

Which is why the following detail–from a UN report issued yesterday describing the systematic use of torture in Afghan prison interrogations–is so important.

[UN Assistance Mission in Afghanistan]’s detention observation included interviews with 89 detainees who reported the involvement of international military forces either alone or with Afghan security forces in their capture and transfer to [National Directorate of Security] or [Afghan National Police] custody. UNAMA found compelling evidence that 19 of these 89 detainees were tortured in NDS facilities namely, NDS Department 90/124 and NDS Laghman and three in ANP custody (ANP in Kunduz and Tirin Kot). This situation speaks to the need for robust oversight and monitoring of all transfers of detainees to NDS and ANP custody and possible suspension of transfers where credible reports of torture exist.

[snip]

The US and other ISAF military forces, including Canada and the UK reportedly transferred approximately 2,000 individuals to Afghan custody in 2009 and 2010.166 Judicial rulings in Canada and the UK resulted in suspension of transfers of detainees by those countries’ military forces to various NDS facilities over different periods of time.167 In both cases, the courts’ decisions were based on the credibility of information that NDS abused and tortured detainees in selected locations (Kabul and Kandahar). The UK stopped transfers to NDS Kandahar and NDS facilities in Kabul. Canada ceased transfers to all NDS facilities in Kabul, but continued to transfer to Kandahar’s MoJ Sarapoza prison. Canadian and the UK governments also implemented monitoring programmes in detention facilities where they handed over detainees to custody of Afghan authorities.
The US has not yet put in place a monitoring programme to track detainees it hands over to Afghan authorities. A US government official advised UNAMA that the US Embassy finalised plans for a post‐transfer detainee monitoring programme and a proposal is with the Afghan government for its consideration. The Embassy stated that it regards the proposed programme as a positive way for the US to continue its work with the Afghan government to ensure its detention system is safe, secure, and humane.168

In early July 2011, US military forces stopped transferring detainees to NDS and ANP authorities in Dai Kundi, Kandahar, Uruzgan and Zabul based on reports of a consistent practice of torture and mistreatment of detainees in NDS and ANP detention facilities in these areas.169 ISAF advised UNAMA that it asked the Government to investigate these reports and indicates it will not resume transfers until the situation is satisfactorily addressed.
In early September 2011, in response to the findings in this report, ISAF stated that it stopped transferring detainees to certain installations as a precautionary measure.170

That is, even though our coalition partners had already stopped transferring detainees to Afghans known to use torture in interrogations, the US continued doing so until last month.

And this torture is happening almost exclusively to obtain confessions.

Out of 273 detainees interviewed, 125 (46 percent) reported they had been tortured while in NDS custody. The forms of abuse most commonly reported were suspension (being hung by the wrists from chains attached to the wall, iron bars or other fixtures for lengthy periods) and beating, especially with rubber hoses, electric cables and wires or wooden sticks and particularly on the soles of the feet. Other forms of abuse reported included electric shock, twisting of the detainee’s penis and wrenching of the detainee’s testicles, removal of toenails and forced prolonged standing. Detainees also reported blindfolding and hooding. According to detainees, these abuses almost always took place during interrogations and were aimed at obtaining a confession. Only two percent of those detainees who reported abuse by NDS said that any abuse took place at the time of arrest or in any other context.

[snip]

Based on the interviews it conducted, UNAMA found compelling evidence that officials at Department 90/124 systematically tortured detainees for the purposes of obtaining information and confessions. According to UNAMA’s findings, NDS officials in Department 90/124 used beating, suspension, and twisting and wrenching of genitals as means of torture. Two detainees also reported receiving electric shocks, two detainees reported their beards had been pulled, and three detainees reported having their heads banged against the wall.57 All of the abuse took place in the context of the interrogation process. In most cases, the detainee’s account of the sequence of events makes it clear that NDS officials used abusive interrogation procedures to obtain information and formal confessions.

It’d be nice if we did more than stop turning over detainees to prisons known to use torture now that the UN has formally put us on notice about it. It’d be nice if we reviewed when the US became aware of this practice and why we kept turning people over to the Afghans.

But I guess that would amount to looking backward.

Yet Another “Lady Gaga” Exposure Forces DOD to Wipe Drone Control Computers

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On Friday, Wired broke the news that the DOD suffered yet another breach because they continue to leave computers exposed to outside storage systems. (h/t WO) In this case, the Ground Control Stations they use to control drones got infected with a keylogger virus.

But time and time again, the so-called “air gaps” between classified and public networks have been bridged, largely through the use of discs and removable drives. In late 2008, for example, the drives helped introduce the agent.btz worm to hundreds of thousands of Defense Department computers. The Pentagon is still disinfecting machines, three years later.

Use of the drives is now severely restricted throughout the military. But the base at Creech was one of the exceptions, until the virus hit. Predator and Reaper crews use removable hard drives to load map updates and transport mission videos from one computer to another. The virus is believed to have spread through these removable drives. Drone units at other Air Force bases worldwide have now been ordered to stop their use.

After a virus was introduced into computers in Iraq three years ago via thumb drive, DOD claimed it had prohibited the use of any removable media with their computers. But then Bradley Manning allegedly removed hundreds of thousands of classified cables from SIPRNet using a Lady Gaga CD. Rather than making all computers inaccessible to removable media at that point, DOD left 12% of their computers vulnerable, deploying a buddy-system to prevent people from taking files inappropriately; but human buddy systems don’t necessarily prevent the transmission of viruses.

The good news is that the Host-Based Security System implemented in response to Wikileaks discovered the virus–two weeks ago.

But here’s the other interesting wrinkle. To get rid of these viruses, techs have resorted to wiping the hard drives of the targeting computers.

In the meantime, technicians at Creech are trying to get the virus off the GCS machines. It has not been easy. At first, they followed removal instructions posted on the website of the Kaspersky security firm. “But the virus kept coming back,” a source familiar with the infection says. Eventually, the technicians had to use a software tool called BCWipe to completely erase the GCS’ internal hard drives. “That meant rebuilding them from scratch” — a time-consuming effort.

Given what little we know about the Anwar al-Awlaki assassination (which, as Wired points out, happened after the virus had knowingly infected these computers), this should not affect the computers that ten days ago killed two US citizens with no due process. The Newsweek story describing the CIA’s targeting process says that targeting is done in VA, not NV, where the virus hit.

But particularly given the questions about Samir Khan’s death, consider if that weren’t the case. That would mean a key piece of evidence about whether or not the US knowingly executed an American engaging in speech might be completely eliminated, wiped clean to fix a predictable virus.

That’s not the only risk, of course. We’ve talked before about how long it’ll take for Iran or Mexican drug cartels to hack our armed drones. If this virus were passed via deliberate hack, rather than sloppiness, then we might be one step closer to that eventuality.

All because DOD continues to refuse to take simple steps to secure their computers.

Ray Kelly Vs. Minimal Oversight

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In the AP’s first report on the NYPD’s CIA-on-the-Hudson, they quoted City Councilmen Peter Vallone reassuring that his private conversations with Ray Kelly were adequate oversight.

“Ray Kelly briefs me privately on certain subjects that should not be discussed in public,” said City Councilman Peter Vallone. “We’ve discussed in person how they investigate certain groups they suspect have terrorist sympathizers or have terrorist suspects.”

A month and a half of damning new revelations later, Vallone is not so sure.

Peter Vallone, the chairman of the council’s Public Safety Committee, said the council doesn’t have the power to subpoena the NYPD for its intelligence records. And even if it did, he said the operations are too sophisticated for city officials to effectively oversee. More oversight is likely needed, he said, perhaps from the federal government.

“That portion of the police department’s work should probably be looked at by a federal monitor,” he said after Police Commissioner Raymond Kelly testified Thursday at City Hall.

But Kelly–whose cops are being filmed on an increasingly frequent basis beating and pepper spraying peaceful protestors–likes it just fine with no oversight.

Kelly told council members that the department’s internal accountability was rigorous and ensured that civil rights were being protected. And he said everything the department does is in line with court rules, known as the Handschu guidelines, that limit how and why police can collect intelligence before there’s evidence of a crime.

“The value we place on privacy rights and other constitutional protections is part of what motivates the work of counterterrorism,” he said. “It would be counterproductive in the extreme if we violated those freedoms in the course of our work to defend New York.”

[snip]

“The AP stories make it hard to believe we’re getting the balance right,” said Brad Lander, a Brooklyn councilman.

“That’s your opinion,” Kelly said. “We’re following the Handschu guidelines.”

With regard to Kelly’s racial profiling program (as opposed to the overreaction to Occupy Wall Street), it’s not actually clear who, with City Council abdicating their oversight role, can perform that oversight. The AP notes that the Obama Administration and Congress aren’t in a rush to exercise oversight over the CIA-on-the-Hudson either.

Which is precisely how Ray Kelly gets away with doing what he’s doing.

As NYPD Engages in New Civil Liberties Violations, Past Violations Under New Scrutiny

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While supervisors from the NYPD are pepper-spraying peaceful political protestors, the Department is also coming under scrutiny for its past (and presumably ongoing) civil liberties abuse, the profiling of Muslim and Arab residents of NY.

As the original AP story on the NYPD’s profiling program described, in the 1980s, the city was put under court orders limiting the kind of intelligence-gathering programs it could conduct.

Since 1985, the NYPD had operated under a federal court order limiting the tactics it could use to gather intelligence. During the 1960s and 1970s, the department had used informants and undercover officers to infiltrate anti-war protest groups and other activists without any reason to suspect criminal behavior.

To settle a lawsuit, the department agreed to follow guidelines that required “specific information” of criminal activity before police could monitor political activity.

In September 2002, [NYPD Intelligence Unit Head David] Cohen told a federal judge that those guidelines made it “virtually impossible” to detect terrorist plots. The FBI was changing its rules to respond to 9/11, and Cohen argued that the NYPD must do so, too.

“In the case of terrorism, to wait for an indication of crime before investigating is to wait far too long,” Cohen wrote.

U.S. District Judge Charles S. Haight Jr. agreed, saying the old guidelines “addressed different perils in a different time.” He scrapped the old rules and replaced them with more lenient ones.

As the AP has been exposing the NYPD profiling program, it has never been entirely clear how this agreement simply got put aside, not least because the intelligence department was also involved in the 2004 RNC abuses.

And the question is more pressing given that Anthony Bologna, the pepper sprayer, is part of the NYPD’s counterterrorism group. I

It’s bad enough, after all, that the NYPD is profiling the city’s Moroccan restaurants, but it seems to be abusing the kind of political persecution the court order–Handschu v. Special Services Division–was supposed to prevent.

Today, the NYCLU is asking more questions about what is going on.

The New York Civil Liberties Union and partnering civil rights attorneys today filed papers in federal court seeking information on the NYPD’s surveillance of Muslims in New York City to determine whether the spying operation violates an existing court order. The filing is part of the Handschu v. Special Services Divisionproceedings, a decades-old federal case that has produced a series of court orders regulating NYPD surveillance of political and religious activity.

The filing asks the court to initiate a discovery process pertaining to the NYPD’s surveillance of Muslims to determine whether those efforts have violated a 1985 consent decree in the Handschu case that restricts the Police Department’s ability to conduct surveillance targeting political and religious activity. The filing also asks the court to order the NYPD to preserve any records relating to its surveillance of Muslims while the discovery process takes place.

“The NYPD’s reported surveillance of local Muslim communities raises serious questions concerning whether the Police Department has violated court-ordered restrictions on its ability to spy on and keep dossiers on individuals,” said NYCLU Legal Director Arthur Eisenberg. “In order to know whether the NYPD is violating the court order, we need a more complete explanation of the NYPD’s surveillance practices.”

To be clear, this is a response to the ethnic profiling, not the crack-down on #OccupyWallStreet.

But if the NYCLU effort succeeds, it may succeed in exposing a lot more about how the NYPD became the CIA-on-the-Hudson. Anthony Bologna’s aggression is already being investigated by the NYPD itself and the DA. But with this NYCLU action, other activities of the NYPD may get scrutinized by the courts, too.

A List of Food Trucks That Will Take Orders for #OccupyWallStreet Protesters

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Someone down at Occupy Wall Street noted that a bunch of food trucks are gathering around the protest. Four of them would be able to take orders for the protesters. So if you want to feed those trying to hold the banksters accountable, call one of these food trucks.

Lemongrass Grill – Thai – 212.809.8038

Alfanoose – Middle Eastern – 212.528.4669

Toloache Taqueria – 212.809.9800

Liberatos Pizza – 212.344.3464

The Government Once Again Harrasses Others to Hide Its Own Failures

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This is a post I could have written (in fact, I think I did here, here, here, and here). One difference, however, is that the author of this post is a government insider, State Department Foreign Service Officer Peter Van Buren.

The State Department and its Bureau of Diplomatic Security never took responsibility for their part in the loss of all those [WikiLeak] cables, never acknowledged their own mistakes or porous security measures. No one will ever be fired at State because of WikiLeaks — except, at some point, possibly me. Instead, State joined in the Federal mugging of Army Private Bradley Manning, the person alleged to have copied the cables onto a Lady Gaga CD while sitting in the Iraqi desert.

That all those cables were available electronically to everyone from the Secretary of State to a lowly Army private was the result of a clumsy post-9/11 decision at the highest levels of the State Department to quickly make up for information-sharing shortcomings. Trying to please an angry Bush White House, State went from sharing almost nothing to sharing almost everything overnight. They flung their whole library onto the government’s classified intranet, SIPRnet, making it available to hundreds of thousands of Federal employees worldwide. It is usually not a good idea to make classified information that broadly available when you cannot control who gets access to it outside your own organization. The intelligence agencies and the military certainly did no such thing on SIPRnet, before or after 9/11.

State did not restrict access. If you were in, you could see it all. There was no safeguard to ask why someone in the Army in Iraq in 2010 needed to see reporting from 1980s Iceland. Even inside their own organization, State requires its employees to “subscribe” to classified cables by topic, creating a record of what you see and limiting access by justifiable need. A guy who works on trade issues for Morocco might need to explain why he asked for political-military reports from Chile.

Another difference is that Van Buren is being harassed because he included a link from his blog to some cables describing the US dealing weapons to Moammar Qaddafi, including this account of John McCain and Lindsey Graham sucking up to the dictator.

The more amusing cable is from August 2009, just two short years ago. It recounts the visit to Libya of Congressional super heroes John McCain,Joe Lieberman and Lindsey Graham. The boys had a nice visit with Qaddafi and his son it seems. The cable notes “Lieberman called Libya an important ally in the war on terrorism, noting that common enemies sometimes make better friends.” Old Man McCain assured his hosts “that the United States wanted to provide Libya with the equipment it needs for its security. He stated that he understood Libya’s requests regarding the rehabilitation of its eight C-130s and pledged to see what he could do to move things forward in Congress. He described the bilateral military relationship as strong and pointed to Libyan officer training at U.S. Command, Staff, and War colleges as some of the best programs for Libyan military participation.”

The cable continued to say that “Qadhafi commented that friendship was better for the people of both countries and expressed his desire to see the relationship flourish. He thanked the Senators for their visit and described America as a race rather than a nationality, explaining that many Libyans are dual citizens because they were born in the United States. Senators McCain and Graham conveyed the U.S. interest in continuing the progress of the bilateral relationship and pledged to try to resolve the C-130 issue with Congress and Defense Secretary Gates.”

And whereas in my posts on the government’s overreaction to WikiLeaks, I focused on DOD’s hypocrisy on assigning all of the blame for a massive security breach to Bradley Manning in spite of its own rank incompetence keeping its networks safe, Van Buren rehearses the State Department’s past failures to keep their data safe.

Over the years, State has leaked like an old boot. One of its most hilarious security breaches took place when an unknown person walked into the Secretary of State’s outer office and grabbed a pile of classified documents. From the vast trove of missing classified laptops to bugging devices found in its secure conference rooms, from high ranking officials trading secrets in Vienna to top diplomats dallying with spies in Taiwan, even the publicly available list is long and ugly.

[snip]

Then again, history shows that technical security is just not State’s game, which means the Wikileaks uproar is less of a surprise in context. For example,in 2006, news reports indicated that State’s computer systems were massively hacked by Chinese computer geeks.  In 2008, State data disclosures led to an identity theft scheme only uncovered through a fluke arrest by the Washington D.C. cops.  Before it was closed down in 2009, snooping on private passport records was a popular intramural activity at the State Department, widely known and casually accepted.  In 2011, contractors using fake identities appear to have downloaded 250,000 internal medical records of State Department employees, including mine.

[snip]

Diplomatic Security famously took into custody the color slides reproduced in the Foreign Service Journal showing an open copy of one of the Government’s most sensitive intelligence documents, albeit only after the photos were published and distributed in the thousands. Similarly DS made it a crime to take photos of the giant U.S. Embassy compound in Baghdad, but only after the architecture firm building it posted sketches of the Embassy online; a Google search will still reveal many of those images; others who served in Iraq have posted them on their unsecured Facebook pages

Finally, though, there’s the big difference. State is threatening to take away Van Buren’s security clearance, which would amount to firing a successful Foreign Service Officer for a few links to WikiLeaks cables widely available elsewhere.

Secrecy News just posted a Congressional Research Service report written on WikiLeaks type leaks. As SN has previously reported, CRS researchers aren’t allowed to refer to the WL cables, not even for their reports.

“Add me to the list of grumblers,” said a respected national security analyst at the Congressional Research Service, where employees have been prohibited from accessing WikiLeaks documents online.

“This whole thing is so [expletive] stupid,” he said yesterday. “Even staff with clearances can’t read the cables, let alone quote them. One reason is that we can’t read classified materials on unclassified computers and we have no classified computers.”

“We can now quote news stories which cite the cables, but we have no way of verifying whether the article correctly quotes the cables.”

“This is hampering CRS work and management knows it,” the analyst said.  “There’s just no leadership on this issue.”

The rule, in the case of this recent report, results in the absurdity of long footnotes citing news articles, but never once citing an actual WL cable.

16 State’s Secrets, NY TIMES (online edition), Nov. 29, 2010, http://www.nytimes.com/interactive/world/statessecrets.html. According to the Guardian, the fact that most of the cables are dated from 2008 to 2009 is explained by the increase in the number of U.S. embassies linked to the military’s secure computer network, SIPRNet, over the past decade. See The US embassy cables, GUARDIAN (UK), http://www.guardian.co.uk/news/datablog/2010/nov/29/wikileaks-cables-data.
17 Scott Shane and Andrew W. Lehren, Cables Obtained by WikiLeaks Shine Light Into Secret Diplomatic Channels, NY TIMES.
18 The Guardian states that the earliest of the cables is from 1966. See The US embassy cables, supra footnote 16.

Not to mention a CRS report the very first sentence of which makes a demonstrably false statement.

The online publication of classified defense documents and diplomatic cables by the organization WikiLeaks and subsequent reporting by The New York Times, The Guardian (UK), and Der Spiegel (Germany), among others, have focused attention on whether such publication violates U.S. criminal law. [my emphasis]

The Iraq cables were published simultaneously, and except for the recent dump of everything, the State cables were published by the newspapers before WL published them.

This continuing game–the persecution of insiders for non-serious leaks while sanctioned leaks to Bob Woodward or General’s kids go un-investigated, the preference for the error and inanity of this CRS report over actual information–is getting really pathetic. It makes us dysfunctional as a country, preventing real discussion and therefore sound decision making, while we’re not doing the bureaucratic things to keep our secrets safe from our actual enemies. And all the while, efforts of people like Van Buren to tell us what a catastrophe our Iraq project really was get punished.

Obama Rejects Senate Advice and Consent Over the Guy Who Data Mines Our Communications

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The Administration has released a veto threat of the Intelligence Authorization that I’m going to deal with in reverse order.

The last objection argues that we can’t require the head of the NSA–the agency that gets to collect and data mine virtually all of America’s telecom metadata, as well as a lot of the actual content–face Senate confirmation because that person might not be confirmed.

Confirmation of Appointment of the Director of the National Security Agency:  The Administration strongly objects to section 421, which would add a requirement that the person nominated for the position of Director of the National Security Agency be confirmed by the Senate.  The Administration believes that if this provision were to become law, a critical national security position would likely remain unfilled for a significant period of time, adversely impacting the management and function of the National Security Agency.

Admittedly, Obama has had problems getting his nominees through Congress, partly because of Republican intransigence, partly because he hung out his most progressive nominees to dry, and partly because he hasn’t gotten nominees in place.

But the solution for that is not to give up! The solution is turn Republican intransigence into a political liability. And there’s no easier area to do that with than National Security. Indeed, the only National Security nominees I’m aware of who got held up (aside from Eric Holder until he promised not to prosecute torture) were TSA nominees who supported TSA workers’ right to organize; with them, Obama made no effort to accuse Republicans for exposing the country to danger over a political spat. And even James Clapper–about whom a number of Senators had concerns–got confirmed unanimously.

Then there’s the Administration’s objection to the requirement for records of diplomatic negotiations about detainees.

Submission of Information on Detainees Held at United States Naval Station, Guantanamo Bay, Cuba: The Administration strongly objects to sections 307 and 309, which would state that the DNI must provide the Intelligence Committees with each Department of State cable, memorandum, or report containing certain information relating to Guantanamo Bay detainees, as well as government-to-government assurances related to the transfer of those detainees. The Administration believes that such disclosure will have a significant adverse impact on the willingness of foreign partners, who often expressly request this information not be disseminated, to communicate frankly on these matters.

The cables and other documents at issue – originated and controlled by the Department of State, not the ODNI – contain deliberative commentary and sensitive diplomatic discussions and negotiations, including commitments made by foreign governments relating to the handling of transferred detainees. The Department of State has accordingly declined to produce these documents to Congress or to U.S. federal courts because of the need to protect diplomatic communications in conducing effective foreign relations. The Administration is concerned that these provisions may conflict with the Executive Branch’s constitutional authority to control the disclosure of information when necessary to preserve the Executive’s ability to perform its constitutional responsibilities.

There’s a deep, deep irony here. If this were Dick Cheney’s Administration, he would have added a “besides, Congress leaks so much we can’t let these sensitive materials circulate.” Except the Executive Branch is here refusing to share with the legislative branch the kinds of cables that were leaked to WikiLeaks, largely because of the incompetence of the Executive Branch.

You see, the Executive Branch may have “constitutional authority to control the disclosure of information,” but not, apparently, the basic competence to do so.

And so Congress can’t know whether the US is letting detainees of certain nationalities–like, say, Saudi Arabia–be released because of diplomatic sensitivities. Congress can’t know whether we release someone like David Hicks to help a political ally win an election. And Congress also can’t know what is probably the greater sensitivity, whether and how the Executive Branch, and allies like the Saudis, believe they’re flipping detainees to work as spies (often mistakenly).

I can see why such a requirement would elicit a veto threat.

But I think the real veto threat comes from stuff we’re not allowed to know about.

The Administration looks forward to reviewing the updated classified annex accompanying H.R. 1892.  In a letter from the Director of National Intelligence dated August 30, 2011, the Administration identified specific provisions in the Senate classified annex that also raised serious concerns.  If H.R. 1892 is presented to the President and includes the issues of concern described below and includes, but does not adequately address, the specific provisions of the Senate classified annex, the President’s senior advisors would recommend a veto.

The fact that much of this veto threat pertains to stuff that is substantive and sensitive enough to appear in the classified annex suggests it might be a real issue (and note that the items to which the Administration objects are in the Senate annex, not the House one, so they’re not something Michele Bachmann dreamt up to be cute). It is very rare that Administrations differ with Congress on such substantive issues (as opposed to, say, GAO review). Which suggests this may well be the really interesting source of the veto threat.

The Inevitable Collapse of Legitimacy Under Secret Law: WikiLeaks Hacks

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DOJ indicted 16 alleged hackers today, 14 of whom were purportedly involved in hacking PayPal after it refused to accept payments for WikiLeaks.

According to the San Jose indictment, in late November 2010, WikiLeaks released a large amount of classified U.S. State Department cables on its website. Citing violations of the PayPal terms of service, and in response to WikiLeaks’ release of the classified cables, PayPal suspended WikiLeaks’ accounts so that WikiLeaks could no longer receive donations via PayPal. WikiLeaks’ website declared that PayPal’s action “tried to economically strangle WikiLeaks.”

The San Jose indictment alleges that in retribution for PayPal’s termination of WikiLeaks’ donation account, a group calling itself Anonymous coordinated and executed distributed denial of service (DDoS) attacks against PayPal’s computer servers using an open source computer program the group makes available for free download on the Internet. DDoS attacks are attempts to render computers unavailable to users through a variety of means, including saturating the target computers or networks with external communications requests, thereby denying service to legitimate users. According to the indictment, Anonymous referred to the DDoS attacks on PayPal as “Operation Avenge Assange.”

Now, I’m not surprised DOJ indicted these folks. I’m not arguing that, if they did what DOJ alleged they did, they didn’t commit a crime.

But I can’t help but notice that DOJ has not yet indicted anyone for the DDoS attacks–the very same crime–committed against WikiLeaks 8 days earlier than the crime alleged in this indictment.

I’m guessing DOJ has a very good idea who committed that crime. But for some reason (heh), they haven’t indicted those perpetrators.

In fact, I’ll bet you that DOJ also has a better explanation for why PayPal started refusing WikiLeaks donations on December 4, 2010–two days before this alleged crime–than they describe here.

But we mere citizens are privy to none of that. As far as we know–because of choices about secrecy the government has made–a crime was committed against a media outlet on November 28, 2010. That crime remains unsolved. Indeed, DOJ has never made a peep about solving that crime. Meanwhile, today, 14 people were indicted for allegedly committing the very same crime the government–inexplicably, at least according to its public statements–has not pursued.

According to the public story, at least, the rule of law died with this indictment today. The government has put itself–the hackers it likes, if not employs–above the law, while indicting 14 people for the very same crime committed just weeks before those 14 people allegedly committed their crime.

Of course, that’s probably not how the government views it. I presume they went to some judge–probably a FISA judge–in the days leading up to November 28 and told that judge they were pursuing a case of Espionage and couldn’t that judge please give the government permission to commit a crime against a media outlet.

Mind you, I’m not aware of the part of the PATRIOT Act (or other US Code) that permits the government to commit crimes against media outlets it claims are engaged in Espionage. But then I’m not aware of the part of the PATRIOT Act that permits the government to track geolocation of all of us in the name of hunting terrorists.

And we know they do that.

That’s one of the problems with secret law, you know. It’s never clear what basis the government has given a judge, in secret, for breaking the law.

Less perplexing than how the government explains why its hack of WikiLeaks is not a crime but the alleged hacking committed by these 14 people is a crime, is why PayPal and Visa and MasterCard all of a sudden, within days, decided to stop taking donations to WikiLeaks. Withdrawing funding for alleged terrorists and spies with no due process, at least, is at least provided for under the law.

Though, from the perspective of seeing that our government used it to persecute a media outlet, it doesn’t necessarily make it right.

The other interesting thing about how this secret law thing works is that around about the same time this uninvestigated hack against WikiLeaks occurred and around about the same time these alleged hackers hacked PayPal, the government anonymously leaked information about problems with the claim that WikiLeaks was, in fact, engaged in Espionage. Even at that point, the government admitted it didn’t have much of an Espionage case.

The Justice Department, in considering whether and how it might indict Julian Assange, is looking beyond the Espionage Act of 1917 to other possible offenses, including conspiracy or trafficking in stolen property, according to officials familiar with the investigation.

Attorney General Eric H. Holder Jr. acknowledged this week that there were problems with the Espionage Act, a World War I-era law that says the unauthorized possession and dissemination of information related to national defense is illegal. But he also hinted that prosecutors were looking at other statutes with regard to Mr. Assange, the founder of WikiLeaks.

[snip]

A government official familiar with the investigation said that treating WikiLeaks different from newspapers might be facilitated if investigators found any evidence that Mr. Assange aided the leaker, who is believed to be a low-level Army intelligence analyst — for example, by directing him to look for certain things and providing technological assistance.

If Mr. Assange did collaborate in the original disclosure, then prosecutors could charge him with conspiracy in the underlying leak, skirting the question of whether the subsequent publication of the documents constituted a separate criminal offense. But while investigators have looked for such evidence, there is no public sign suggesting that they have found any.

Did they tell a judge WikiLeaks was engaged in Espionage even while they were telling Charlie Savage it wasn’t?

Particularly from the perspective of today–as it has become clear that Rupert Murdoch has been trafficking in stolen property without his media properties mysteriously getting hacked by people we believe to be aligned with the government–the 7 month period in which DOJ has failed to find any grounds to indict WikiLeaks itself really raises questions about the justification DOJ presumably gave to a judge all those months ago to engage in illegal prior restraint.

I assume DOJ claimed WikiLeaks engaged in Espionage. I assume the government used that claim to hack WikiLeaks and engage in prior restraint. I assume the government used the same claim to cut off US-based donations to WikiLeaks. And if the government admitted that publicly, likely just a few crazy civil libertarians like me would object to the government’s violation of the First Amendment.

We’re so quaint, those of us who believe in rule of law!

DOJ could fix the crisis in legitimacy this indictment will bring about by simply explaining some detail about why they’re not pursuing the hackers that brought down a media outlet last year, but they have pursued hackers that brought down an online payment service (never mind questions about why they’re not pursuing banksters). They could simply explain what law they used–or abused–to be able to incapacitate a media outlet without violating the First Amendment.

That might give their actions today–and back in November–the patina of legitimacy.

But instead, they have apparently chosen to persist in applying their secret laws, such that they can violate the First Amendment of the Constitution, even while prosecuting others for crimes the government has presumably committed itself.

And that, my friends, is how secret law kills democracy and the rule of law.

Visa Shuts Down DataCell’s Donation Processing for WikiLeaks Again

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Well, I guess this will add to the evidence that Visa is refusing to accept donations from DataCell because it works with WikiLeaks.

For a few hours on Thursday, credit card donations once again flowed to WikiLeaks through a payment gateway at Icelandic hosting company DataCell. Then Visa shut it down again.

DataCell CEO Andreas Fink said his company had found a new payment acquirer, Valitor, willing to process payments to WikiLeaks, and accepted thousands of donations to the whistle-blowing website before running into problems around 3.30 a.m. Icelandic time.

[snip]

According to Visa representative Amanda Kamin, “An acquirer briefly accepted payments on a merchant site linked to WikiLeaks. As soon as this came to our attention, action was taken with the suspension of Visa payment acceptance to the site remaining in place.”

DataCell’s contract with Valitor contains no terms that forbid DataCell from accepting donations on behalf of WikiLeaks, Fink said.

It’ll be interesting to see whether Valitor’s brief acceptance of DataCell donations will get it in trouble under Visa’s merchant agreements. Or whether they got written threats of trouble.

Because that’s the kind of thing that might make Europe more concerned about this abuse of Visa and MasterCard’s monopoly position.

Credit Card Companies Forestall Legal Trouble by Allowing Donations via DataCell

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Credit card of future

Credit card of future by Robert Scoble

Remember that suit Wikileaks’ hosting company, DataCell was about to file? Today was the day they were planning to do so. And surprise surprise, Visa and MasterCard have suddenly decided to start processing payments from DataCell again.

Late last week, WikiLeaks and DataCell gave me a copy of a legal complaint the group had planned to file Thursday with the European Union Commission, accusing the card companies and their Danish payment processor Teller of abusing their market positions by cutting off WikiLeaks’ financial sources.

Neither Visa nor MasterCard has responded to that threat, and even now a Visa spokesperson merely tells me that the company is “looking into the situation.”

But in the meantime, Visa, MasterCard and American Express payments have all inexplicably opened to DataCell and WikiLeaks through another payment processor, according to DataCell.

“Today we have observed that an alternative payment processor that we have contracted with, has in fact opened the gateway for payments with Visa and Mastercard, and now also for American Express Card payments, which is an option we did not had before,” DataCell wrote in a statement on its website.

We’ll see how long it lasts. But it says something about the due process used here if the mere threat of legal action has opened up the credit processing already.

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