This Raid on Peace Activists Brought to You By Elena Kagan

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This article not only describes the hundreds of people who protested FBI raids of peace activists last week, but it provides more detail on what the FBI was looking for.

Agents were seeking “evidence relating to activities concerning the material support of terrorism,” the FBI said. Chicago FBI spokesman Ross Rice declined on Monday to discuss what agents were looking for, citing an “ongoing criminal investigation.” There have been no arrests.

Search warrants and subpoenas indicate authorities are looking for connections between the activists and groups including the Revolutionary Armed Forces of Colombia (FARC), the Popular Front for the Liberation of Palestine (PFLP) and Hezbollah. The U.S. government considers those groups to be terrorist organizations.

[snip]

Sundin said Monday she met FARC rebels when she visited Colombia in 2000, but noted that the Colombian government was holding peace talks at the time with the rebels, who held public forums where she met them. She said she has had no contacts with FARC since.

Kelly and Sundin acknowledged they’re active in the Freedom Road Socialist Organization, a group named in several warrants that openly supports FARC and PFLP and shares their Marxist ideologies. Two groups use the name after a 1999 split. They said their Freedom Road is a small group, but that they weren’t sure how many supporters it has. Kelly edits its newspaper.

These descriptions suggest that the FBI is raiding a bunch of peace activists it tracked during the RNC Convention to establish attenuated ties between them and at least three groups on the Foreign Terrorist Organization list.

What’s particularly interesting is the description of the work these activists were doing in Palestine and Colombia.

“We meet with human rights activists in other countries to get understanding of situations they face,” said Yorek.

Sundin said committee members use the trips to gather information that the group then uses in presentations to the public back in the United States.

“All trips always been very public,” Sundin said.

Aby said that in Palestine, committee members met with the Palestinian Women’s Commission and another group that advocates for Palestinian prisoners in Israeli jails. In Colombia, she said members met with representatives of Colombian unions.

“In Colombia, you’re considered to be a FARC supporter if you’re a member of a union,” Aby said. Critics of current Colombian President Juan Manuel Santos or former president Alvaro Uribe were also considered supporters of the FARC by Colombian authorities.

That is, after meeting with groups that the authorities in the country have an incentive to claim are terrorist groups, they come back to the US and publicize the conditions in the country.

Law Professor Peter Erlinder has said repeatedly precisely what I’ve been thinking about these raids since they happened: SCOTUS’ decision in Holder v. Humanitarian Law Project probably made such activities (which appear to have all happened before the decision in the case) illegal.

Congress has prohibited the provision of “material support or resources” to certain foreign organizations that engage in terrorist activity. 18 U. S. C. §2339B(a)(1). That prohibition is based on a finding that the specified organizations “are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), §301(a)(7), 110 Stat. 1247, note following 18 U. S. C. §2339B (Findings and Purpose). The plaintiffs in this litigation seek to provide support to two such organizations. Plaintiffs claim that they seek to facilitate only the lawful, nonviolent purposes of those groups, and that applying the material-support law to prevent them from doing so violates the Constitution. In particular, they claim that the statute is too vague, in violation of the Fifth Amendment, and that it infringes their rights to freedom of speech and association, in violation of the First Amendment. We conclude that the material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute inthe future.

Obviously, the six justices (the conservatives plus Stevens) who made peace activism material support for terrorism deserve the bulk of the blame for this decision. But this was also the argument where then Solicitor General Elena Kagan advocated for the broadest interpretation of the statute.

JUSTICE KENNEDY: Do you stick with the argument made below that it’s unlawful to file an amicus brief?

GENERAL KAGAN: Justice Kennedy —

JUSTICE KENNEDY: I think I’m right in saying it that that was the argument below.

GENERAL KAGAN: Yes, I think that would be a service. In other words, not an amicus brief just to make sure that we understand each other. The Petitioners can file amicus briefs in a case that might involve the PKK or the LTTE for themselves, but to the extent that a lawyer drafts an amicus brief for the PKK or for the LTTE, that that’s the amicus party, then that indeed would be prohibited.

And lo and behold, just three months after this decision, the FBI is investigating a bunch of peace activists for their efforts to foster peace in areas contested by these terrorist organizations.

Now, I have no idea what Kagan thinks about this raid (though she used Hezbollah as her example in the argument, not the Tamil Tiger groups actually named in the suit, and Hezbollah is one of the organizations named in the warrants). But even during the argument, she sustained a fiction that the Court’s interpretation of material support to include peace efforts would be an unlikely use of prosecutorial discretion.

GENERAL KAGAN: First, because with respect to overbreadth, all of those uncertain or even unconstitutional applications will be but a thimbleful, compared to the ocean full of completely legitimate applications of this statute.

[snip]

GENERAL KAGAN: Of course, that’s a different thing as to how prosecutorial judgment is used to decide which are the high-priority cases and which are the low-priority cases.

Or maybe she just badly misinterpreted what FBI’s priorities really were.

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Is this How the Yemeni-American Partnership Works?

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In my post on the government’s invocation of state secrets to hide the things national security officials have already leaked to the press, I linked to David Ignatius’ largely-overlooked report that Yemen first asked us to target Anwar al-Awlaki, and only thereafter did we get around to targeting him and telling courts they had no business asking why we had done so.

Last October, the Yemeni government came to the CIA with a request: Could the agency collect intelligence that might help target the network of a U.S.-born al-Qaeda recruiter named Anwar al-Aulaqi?

Keep that in mind as you read this story about a Yemeni woman trying to FOIA information about US involvement in her US citizen husband’s abduction in Yemen. (h/t Political Carnival)

As [Sharif Mobley] drank tea on a Sana’a street, eight masked men burst from two white vans and tried to grab him. Terrified, he ran, but was brought crashing to the ground by two bullets to his legs and bundled into one of the vans.

The method of abduction may have been brutal, but it was not the work of a rebel group or criminal gang. Instead, the armed men were Yemeni security agents, and in a set of legal documents seen by Al Jazeera, Mobley’s lawyers allege they were operating on behalf of the US government.

Now, the story only presents the Mobley’s family’s story, in which they claim that while Mobley had had contact with Anwar al-Awlaki, he never had any dealings or awareness of ties to al Qaeda.

“Sharif openly admits that he had been in limited contact with al-Awlaki,” says Cori Crider, Mobley’s  lawyer. “But he categorically denies that he was involved in or aware of any plot or link to al-Qaeda.”

Perhaps Mobley’s family is just spinning, downplaying more developed ties between Mobley and AQAP. Though note that any contact with al-Awlaki would have happened before Al Qaeda in the Arabian Peninsula was designated a terrorist organization, and even then, the government claims that terrorist designation should not limit others’ First Amendment rights to associate with members of designated terrorist groups.

Whether or not Mobley’s story is correct or not, it doesn’t dismiss the other allegation: that someone apparently tied to the US embassy raided the Mobley family home, all while pretending that Yemen–not the US–had sole custody of Mobley.

When she realised her husband was missing, [Mobley’s wife, Nzinga Saba Islam] immediately reported his disappearance to the embassy, where she was told to file a report with Yemeni police.

That night, at 1am, as she lay worrying about what had happened to her husband, the documents say around 15 men burst into the family home. The family were held at gunpoint and searched, while the house was raided and items confiscated.

Nzinga has told lawyers that the following morning she returned to the US embassy. As she waited to file a report about what had happened, she insists that she saw the man who had led the raid on her home wearing a US embassy pass.

“He was, as far as Nzinga could tell, in charge of the raid on her home,” Crider says. “She asked the embassy about him and what he was doing there, but embassy officials never gave her a straight answer.”

The documents allege that embassy officials listened to what Nzinga had to say, and began to question her about her husband’s activities in Yemen. Amongst the items she says they showed her were photographs taken during the raid on the house.

Mind you, none of this would be new. By all appearances, the US has used Pakistan as a proxy for arresting US citizens to avoid granting those citizens the legal rights they otherwise would have.

But the move is troubling, given the appearance that Yemen pushed this crack-down before the US did, and given the US government’s refusal to make public their larger case against al-Awlaki.

Anwar al-Awlaki is very quickly becoming our next surrogate bogeyman in the war on terror (the one designed to distract from the continued freedom of the people who actually targeted us on 9/11). And along with that, the government seems intent on hanging a whole lot more terrorist designations on people–including American citizens–without ever showing the evidence that al-Awlaki himself was operational.

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Obama’s Panopticon

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It seems the Administration has declared today “Power Grab Monday.”

Charlie Savage reports that the government is again asking for a “technical fix” (as they have during PATRIOT debates) that extends CALEA to cover all the Toobz.

Federal law enforcement and national security officials are preparing to seek sweeping new regulations for the Internet, arguing that their ability to wiretap criminal and terrorism suspects is “going dark” as people increasingly communicate online instead of by telephone.

Essentially, officials want Congress to require all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct “peer to peer” messaging like Skype — to be technically capable of complying if served with a wiretap order. The mandate would include being able to intercept and unscramble encrypted messages.

And Ellen Nakashima reports an effort to create what sounds like a US version of SWIFT, covering all international transactions, no matter how small.

The Obama administration wants to require U.S. banks to report all electronic money transfers into and out of the country, a dramatic expansion in efforts to counter terrorist financing and money laundering.

Officials say the information would help them spot the sort of transfers that helped finance the al-Qaeda hijackers who carried out the Sept. 11, 2001, attacks. They say the expanded financial data would allow anti-terrorist agencies to better understand normal money-flow patterns so they can spot abnormal activity.

Financial institutions are now required to report to the Treasury Department transactions in excess of $10,000 and others they deem suspicious. The new rule would require banks to disclose even the smallest transfers.

Any communication you make, any financial transaction you make, the Obama Administration thinks nine years after 9/11 is the time to demand such access.

I suspect it’s only the corporations can save us from this power grab. Not only are corporations doing business in the US not going to want all their transactions accessible by the government (we’ve already stolen enough corporate secrets), but banks aren’t going to want to track transactions at that level.

Though who knows? Maybe the corporations are ready to join Obama’s panopticon?

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The Secrets They’re Keeping Selectively Leaking about Anwar al-Awlaki

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As I noted yesterday (and Glenn has examined at more length), in addition to asserting that the government can target Anwar al-Awlaki … because they said so, the Obama Administration also invoked state secrets in its motion to dismiss the ACLU/CCR suit challenging targeted killings.

The Obama Administration has officially positioned itself to the right of hack lawyer David Rivkin.

But the state secrets invocation is interesting not just because it shows a Democratic Administration out-hacking a noted hack.

For example, I think the invocation shows just how weak they recognize their own argument to be. Consider what Robert Gates (who invoked something newfangled called the “military and state secrets privilege”) and James Clapper described as falling under their invocation of state secrets (Leon Panetta basically said only that CIA could neither confirm nor deny its involvement, which sort of makes me wonder whether CIA really has targeted al-Awlaki or not).

Robert Gates:

A. Intelligence information DoD possesses concerning AQAP and Anwar al-Aulaqi, including intelligence concerning the threat AQAP or Anwar al-Aulaqi pose to national security, and the sources, methods, and analytic processes on which any such intelligence information is based;

B. Information concerning possibly military operations in Yemen, if any, and including criteria or procedures DoD may utilize in connection with such military operations; and

C. Information concerning relations between the United States and the Government of Yemen, including with respect to security, military, or intelligence cooperation, and that government’s counterterrorism efforts.

James Clapper:

A. (U) Intelligence information concerning al-Qaeda and the sources and methods for acquiring that information.

B. (U) Intelligence information concerning AQAP and the sources and methods for acquiring that information.

C. (U) Intelligence information concerning Anwar al-Aulaqi and the sources and methods for acquiring that information.

The Administration is sort of kind of relying on the President’s authority under the AUMF (unless the judge doesn’t buy that argument, in which case the Administration promises to try something else), which states:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

In other words, the Administration is relying on some tie between AQAP and the al Qaeda organization that hit us on 9/11 for its authority to kill an American citizen with no due process. Mind you, it can’t say precisely what that tie is–whether AQAP is al Qaeda or whether it is just closely connected enough to be included under the AUMF. But that’s precisely what it has called a state secret: the evidence of ties between the group against which Congress declared war in 2001 and the group we’re targeting in Yemen.

Effectively, the Executive Branch–with no known support from Congress–is saying we’re at war against AQAP. But it’s also saying no one outside of select people within the Executive Branch (and, presumably, a group of four or maybe eight members of Congress who serve in leadership or on the Intelligence Committees) can see the evidence that proves we’re at war against AQAP.

The President has unilaterally declared war against a group but then said no one can see why he has done so.

And then both Gates and Clapper invoke state secrets over the evidence the government has against al-Awlaki.

Rather than prove to a judge that they even have reasonable suspicion to believe al-Awlaki is part of AQAP, much less enough evidence to execute him, the government has instead asserted that all of that is a state secret. They’ve declared everything al-Awlaki would need to challenge his execution a state secret. Even KSM will be able to see the evidence against him; and he has admitted to killing 3,000 Americans. But American citizen al-Awlaki, whom no one has accused of actually killing anyone, can’t see the same kind of information.

Finally, there’s the tired old sources and methods catch all. We can’t know how the government has collected the evidence it has against al-Awlaki.

Except we already do.

Thanks largely to the efforts of Crazy Pete Hoekstra, we know that the government had wiretaps on al-Awlaki going back at least since December 2008. Al-Awlaki himself has challenged the government to release the intercepts they have on him (which public reports say include correspondence with tens of thousands of people). Al-Awlaki has even made some of that correspondence available himself. But the government says all that is a state secret.

Furthermore, some of the evidence against al-Awlaki appears in court documents, from the public testimony of Umar Farouk Abdulmutallab. The alleged recruitment of Abdulmutallab is one of the key issues the government describes al-Awlaki to have been involved in. That information is public. Yet the government also says it is a state secret.

And if all this really is a state secret, then why isn’t Crazy Pete Hoekstra in jail? Read more →

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The Six FBI Reports Treating Merton Center Anti-War Activism as Terrorism

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Glenn Fine–DOJ’s Inspector General–is usually one of the most credible agents of oversight in the federal government. But his last report–examining whether the FBI investigated the First Amendment activities of lefty groups as terrorism–is a masterpiece of obfuscation. It manages to look at three different investigative efforts of the Thomas Merton Center’s anti-war activism, all treated as terrorism, and declare them unconnected and therefore not evidence that during the Bush Administration anti-war activism was investigated as terrorism.

The coverage of the report has largely focused on Robert Mueller’s reportedly unintentional lies to Congress explaining why an anti-war event sponsored by Pittsburgh’s Thomas Merton Center was investigated in the guise of international terrorism. For good examples, see Charlie Savage and Jeff Stein’s versions of the story.

The short version of Meuller’s misinformation to Congress the report offers is that 1) a rookie FBI officer was sent out as make-work to improperly surveil a peace protest, 2) after that became clear through FOIA, his boss and a lawyer in the office and the FBI’s Counterterrorism Division tried to retroactively invent reasons for the surveillance, 3) largely through the bureaucratic game of telephone that resulted, Robert Mueller (and in more significant ways, a response to a Patrick Leahy Question For the Record) provided false information to Congress.

One cornerstone to this rather credulous narrative is the way the IG Report treats the surveillance of Pittsburgh’s Thomas Merton Center. Rather than treat all the surveillance of the center together–which would reveal an obvious pattern and much better reason to lie to Congress–the report treats  several different iterations of surveillance separately. As a result, Fine was able to look at at least six reports treating Merton Center anti-war activism as terrorism (and ignore one more FBI investigative effort) and declare each of them acceptable.

The Chronology of FBI’s Thomas Merton Center Surveillance

Let’s start with the timeline (note all the names, except that of Farooq Hussaini, are pseudonyms chosen by DOJ IG, as reflected by the quotation marks) which shows fairly sustained surveillance of the Center over the course of three years:

November 29, 2002: Supervisory Special Agent “Susan Crosetti” sends rookie FBI officer “Mark Berry” to surveil people associated with the Thomas Merton Center distributing leaflets opposing the Iraq War. Berry takes photos of some participants. The report recording the surveillance is placed in the “international terrorism” file.

January 2003: Secret Service agent visits Merton Center to discuss upcoming protest in Pittsburgh.

February 26, 2003: Pittsburgh office produces Letterhead Memorandum, titled “International Terrorism Matters,” describing a vigil the Merton Center was planning for when the Iraq War started, as well as local events that had taken place on February 15, 2003 in association with the NY-based United for Peace and Justice sponsored protest.

April 4, 2003: FBI produces EC on Pittsburgh organizational meeting at the Merton Center in advance of Miami FTAA.

July 8, 2003: FBI EC describes threats that FTAA protesters would use puppets to attack riot police and Molotov cocktails.

July 10, 2003: First document recording ties between Person B (alleged to have pro-Palestinian feelings) and the Merton Center (note, this document must have been withheld from the FOIA).

July 21, 2003: Miami Field Office opens domestic terrorism investigation in relation to the FTAA protests.

July 25, 2003: Miami Field Office sends EC to Pittsburgh Field Office on August 29-31 planning meeting for FTAA including Merton Center.

July 26, 2003: FBI designates FTAA a Special Event worthy of heightened surveillance.

August 29-31, 2003: FBI conducts research on FTAA planning meeting at Merton Center in Pittsburgh.

October 29 (?), 2004: First report from confidential source mentioning the Merton Center (all these reports were faxed on July 8, 2005 and declassified on January 4, 2006). The source was apparently the friend of an agent’s son, and included reporting on planning for an anti-war march the Merton Center was planning. The source was purportedly recruited for an investigation into several alleged members of the Pittsburgh Organizing Group; that investigation was a terrorism investigation.

February 25, 2005: Second report from confidential source on the Merton Center.

March 1, 2005: Third report from confidential source on the Merton Center.

March 19, 2005: Fourth report from confidential source on the Merton Center.

Unknown date (before May 18, 2005): FBI agent visits Merton Center intern at intern’s residence asking for information about Merton Center activities.

May 18, 2005: ACLU PA FOIAs FBI documents referencing the Thomas Merton Center (among others).

Unknown date, 2006: Pittsburgh’s Chief Division Counsel reviews the source reporting (and two earlier anti-war reports) and tells agent to close the source.

January 23, 2006: “Carl Fritsch,” a member of Pittsburgh FBI’s legal staff, and Crosetti, both search FBI databases on Farooq Hussaini’s name.

February 1, 2006: National ACLU files FOIA.

February 8, 2006: FBI Field Division Attorney “Stanley Kempler” sends Record Management Division a routing slip, written by “Carl Fritsch,” indicating that the November 29, 2002 surveillance had been directed at Farooq Hussaini and alleging that Hussaini was associated with “Person B” who was the subject of a different investigation. This routing slip was–in the IG Report’s judgment–the first attempt to invent a cover story for the November 2002 surveillance. The same slip provided background on the February 26, 2003 and urged RMD not to release it.

March 14, 2006: ACLU releases FOIA documents, focusing on November 29, 2002 report; FBI issues a press release see PDF 205) inventing a public rationale for the surveillance and purporting to address the February 26, 2003 report.

March 22, 2006: FBI Director’s Research Group writes document “ACLU Allegations of Spying.”

May 2, 2006: Patrick Leahy asks Robert Mueller why FBI was surveilling anti-war demonstrators.

“Soon after” hearing: Leahy asks several Questions For the Record, including for any “earlier investigative memos” that served as the basis for the November 2002 surveillance.

May 16, 2006: Counterterrorism Division’s Executive Staff tasks “Clarence Parkman,” from their Iraq Unit, to draft a response to Leahy. Minutes earlier, Parkman had done a database search on Thomas Merton Center. Two analytical employees in the Iraq section emailed Kempler (cc’ing Berry) for more information. Kempler forwarded the request to Crosetti.

June 5, 2006: Iraq Unit of Counterterrorism Division provides 3-paragraph response to Leahy’s question about November 2002 anti-war rally newly claiming that Person B was the subject of the surveillance. The response also claims–contrary to the description in the original EC but corresponding to story Berry first told to IG–that Berry took pictures of just one, female, protester.

The IG presents this series of surveillance actions directed at the Merton Center as discrete events. It attempts to find an explanation for each incident of surveillance in isolation, and as such, is able to describe each as legally permissible, leaving only the attempt to retroactively invent an explanation for the November 2002 surveillance as really problematic.

But examining the other reports makes it clear that there was a pattern of investigating the Merton Center’s anti-war activities under the guise of terrorism.

Read more →

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More Missing Emails at DOJ?

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I’m still working on a big post on the DOJ IG Report on domestic spying. But for the moment I wanted to call attention to a footnote that seems to suggest the emails from FBI employees in Pittsburgh who had conducted surveillance of the Thomas Merton Center and/or invented an excuse for doing so after the fact were unavailable when DOJ’s IG asked for emails in association with this investigation. The foonote (see PDF 60) reads:

We requested all e-mails from the Pittsburgh employees connected with this matter for the relevant dates. However, the FBI provided none that pertained to this matter.

We know there should be some emails, because we know that the supervisor the report calls “Susan Crosetti” received emails from the Counterterrorism Division in 2006 as they were trying to respond to Pat Leahy’s questions about the surveillance. The IG got the emails from CTD–including one asking the question, “do we know who was being investigated at the rally?” But neither Crosetti’s version of the email, nor its response, ever got turned over to the IG.

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Did OLC Change the Understanding of Riot Investigations to Time w/RNC Convention?

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There’s an interesting detail in the IG Report on FBI’s investigations of peace groups that suggests FBI was asking OLC for an interpretation of the approval required before conducting a riot-related investigation.

The Attorney General’s Guidelines on “Reporting on Civil Disorders and Demonstrations” were in effect from 1976 until they were repealed and partially incorporated into the 2008 Guidelines. Two FBI OGC attorneys we interviewed told us it was their interpretation that the Guidelines required the FBI to request Attorney General approval to open an investigation under the federal riot statute. 18 USC 2101, and the civil disorders statute, 18 USC 231.

[snip]

In July 2008 the DOJ Office of Legal Counsel (OLC) sent an informal opinion to OGC that stated that the Demonstration Guidelines do not require Attorney General approval to open an investigation under the riot statute or the civil disorders statute. However the OLC attorney also said that “as a prudential matter” the FBI should consider requesting such approval before initiating investigations under these statutes. The 2008 Attorney General’s Guidelines repealed the Demonstration Guidelines and requires the approval of the Attorney General, Deputy Attorney General, or the Assistant Attorney General for the Criminal Division only when the FBI collects information relating to actual or threatened disorders to assist the President in determining whether, pursuant to 10 USC 331-33, “use of armed forces or militia is required and how a decision to commit troops should be implemented.”

This footnote is presented in the context of an investigation pertaining to the FTAA meeting in Miami in 2003, but it’s the changes in interpretation in 2008 that I’m most interested in.

This footnote seems to suggest that in July 2008, in the weeks before the Presidential Convention season, someone in OLC lowered the bar for starting an investigation into a potential riot. That’s all the more interesting, given the liberal use of the riot statute Ramsey County and FBI used in preemptively arresting people leading up to the RNC Convention in September of 2008.

In any case, the lowered standard for investigating people for planning riots appears to be the rule now, as the government only needs to get higher approval for riot investigations if they plan to militarize the response.

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If and When Democrats Keep the House, Conyers Should Remind Holder the Import of Congressional Oversight

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I realize the odds of Democrats keeping the House are not all that great. But I also know that the DCCC is far more competent than the RNCC; DCCC has managed to win just about every challenging election of late.

So let’s just say Democrats keep the House and with it John Conyers his gavel. I really hope he’ll make Eric Holder regret not only this inappropriate comment to Lamar Smith (I don’t care whether Democrats or Republicans are in charge, the Committees are there to exercise oversight, not “be nice” to the agencies they cover), but also the unnecessary disloyalty.

Maybe Conyers can start by asking Holder to either provide a more credible explanation for why Pittsburgh’s FBI office was lying about taking a picture at a peace rally with no premise to do so than the FBI provided to Inspector General Glenn Fine (more on this IG Report in a bit).

FBI officials, including the Pittsburgh office’s top lawyer, engaged in distinctly COINTELPRO-style tactics after the American Civil Liberties Union sued for the release of documents relating to the surveillance.Boiled down to their essence, those tactics involved officials generating post-dated “routing slips” and other paper to create a terrorism threat that didn’t exist.

Or as the inspector general put it, the FBI’s elaborate, “after-the-fact reconstruction” of the Pittsburgh events, designed to fabricate a counter-terrorism rationale for the rookie’s surveillance mission, “was not corroborated by any witnesses or contemporaneous documents.”

It was on the basis of their fabrication, moreover, that FBI Director Robert S. Mueller III gave “inaccurate and misleading” testimony to Congress, the IG said.

The IG’s recounting of the Pittsburgh events is lengthy and meticulous.

The FBI, however, continues to deny that bureau officials engaged in an elaborate and deliberate scheme to deceive investigators, Congress and the pubic about what was, in retrospect, one rookie agent’s minor, misdirected surveillance of the Pittsburgh antiwar demonstration.

“Nobody,” the FBI says, “had a motive to provide an intentionally misleading account of it.”

It seems the only people who are given carte blanche to lie and obstruct justice are those trying to evade Congressional oversight, and the people who rely on that seeming carte blanche report up through Holder. That’s a management failure and a failure of the rule of law.

Would that the Attorney General cared more about that rule of law than chumming up to the opposition party.

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The Real Terrorists

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I’ve started reading through J. Edgar Hoover’s files the reports a contractor developed for PA’s Department of Homeland Security that describe political activism as a terrorist threat; Governor Rendell has made them publicly available here. I’ll have more to say about them later (though feel free to add comments on them below).

But for the moment, I’d like to unpack the underlying premise.

The whole idea behind collecting this information and sharing it with private sector entities like oil drilling lobbyists arose as part of efforts to protect our critical infrastructure from terrorist attack after 9/11. US DHS describes the imperative to protect critical infrastructure and key resources (CIKR) this way:

Why is CIKR Protection Important?

  • Attacks on CIKR could significantly disrupt the functioning of government and business alike and produce cascading effects far beyond the targeted sector and physical location of the incident.
  • Direct terrorist attacks and natural, manmade, or technological hazards could produce catastrophic losses in terms of human casualties, property destruction, and economic effects, as well as profound damage to public morale and confidence.
  • Attacks using components of the nation’s CIKR as weapons of mass destruction could have even more devastating physical and psychological consequences.

The Homeland Security Act of 2002 provides the primary authority for the overall homeland security mission. This act charged the Department of Homeland Security with primary responsibility for developing a comprehensive national plan to secure CIKR and recommend “the measures necessary to protect the key resources and critical infrastructure of the United States.” This comprehensive plan is the National Infrastructure Protection Plan (NIPP), published by the Department in June 2006. The NIPP provides the unifying structure for integrating a wide range of efforts for the protection of CIKR into a single national program.

And here’s what the federal government’s Department of Homeland Security considers critical infrastructure, which is how the ITRR organized the reports it gave to PA’s DHS:

So you see, because “attacks on CIKR could significantly disrupt the functioning of government and business alike and produce cascading effects far beyond the targeted sector and physical location of the incident,” PA (and surely other states) are collecting information about the lawful political organizing of anti-drilling and animal welfare activists, among others.

What I want to know is why we regard terrorist attacks to be the greatest threat to our transportation system? To our water? To our food system?

And most of all, to our banking and finance system?

Just to take one example, who do you think is a greater risk to our oil and gas infrastructure? A bunch of hippie protesters trying to limit drilling in the Marcellus Shale and thereby protect the quality of their drinking water (which is, itself, considered critical infrastructure)? Or PG&E, which sat on knowledge of an extremely high risk pipeline for three years even after setting aside the money to fix it?

Three years ago, PG&E asked state regulators for permission to spend $4.87 million to replace a section of the pipeline associated with the pipe that exploded in San Bruno last Thursday. The 1.42-mile section that ran under South San Francisco, which is more heavily populated than San Bruno, was considered extremely high risk and in need to replacement. Last year, the utility company made a similar request to replace a larger section of the same pipeline, at a cost of $13 million. Rate increases were approved and the plan should have gone forward. Sadly, nothing was done and lives were lost.

The South San Francisco pipeline replacement project was dropped down on the priority list and the money allocated for the work was spent elsewhere. Many experts and laypersons alike are now asking, why didn’t PG&E replace pipes they knew to be extremely dangerous?

And while multiple layers of government make sure the PG&Es of the world know about those hippie protesters, they can’t be bothered to require the utilities or pipeline operators to actually return the favor by revealing where the pipelines at risk of explosion are.

In a letter sent Friday, the executive director of the California Public Utilities Commission, Paul Clanon, sought the location of each pipeline segment on the list as well as a “detailed description of the criteria PG&E uses in deciding which pipeline segments to characterize as high-priority projects.”

Clanon defended the delay in seeking the list, whose existence PG&E disclosed as early as 2007, saying the agency didn’t see the need for the information before. Just because a site is on the list doesn’t necessarily mean it is dangerous, he said, adding that it’s not his agency’s role “to run the day-by-day activities of the utility.”

Leave aside our wholesale neglect of these elements of critical infrastructure themselves–the crumbling of our pipelines and roads and financial system because neither the public nor the private sector want to spend the money and time to keep them together–and focus on the information gathering part of it.

Because terrorism is somehow a greater threat to our country than PG&E’s neglect or Wright County Egg’s negligence or Lehman’s greed, we collect and share information on hippies. But not on the pipelines that will explode of their own accord, with action from neither hippies nor terrorists.

Updated to fix typo, “Communities” instead of “Communications.”

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But Who Has JSOC’s Back?

/in , /by

Michael Hayden has another tired whine at CNN about Obama’s treatment of the torture program. The entire logic of the piece is predictably silly. It goes something like this:

  1. ACLU and CCR are suing the government for targeting American citizen Anwar al-Awlaki with no due process.
  2. According to Hayden, the targeting of Awlaki was “Authorized by the president, approved as legal, briefed to Congress.”
  3. According to unnamed legal scholars, the suit has little chance of success.
  4. But Obama’s DOJ released OLC memos on the torture program in response to an ACLU suit and investigated the torture of detainees that exceeded DOJ guidelines and therefore was illegal.
  5. This makes Hayden mad because it constitutes “exposing a previously authorized program for apparent political purposes.”
  6. Oh, and by the way, the UN rapporteur for extrajudicial killings also has a problem with targeted killings (and not just those of US citizens), though I’m not entirely sure what Hayden thinks Obama should do about that.

I guess this piece is supposed to be a warning to the White House–which has already assured CIA that it won’t be prosecuted for breaking the law on Obama’s orders–that it needs to make triple sure that none of those with the legal means to do so hold the CIA responsible for the illegal things it is doing. The whole thing would just make more sense if Hayden hadn’t personalized it so much (because, after all, he probably ought to be more concerned about a future President trying to distinguish herself from Obama’s abysmal record in this area). But I get it–Hayden lost some arguments with the Obama Administration and so this whole issue is very very personal.

And I wonder, really, does Hayden believe that Presidents really do have unlimited ability to make laws disappear? And if Hayden is so certain those unnamed legal scholars are correct about the legality of the assassination program and the poor chances the ACLU/CCR suit will succeed, then why complain? Or maybe, given the contortions that Obama’s DOJ is going through in contemplation of litigating the ACLU/CCR suit, Hayden’s confidence that the suit won’t succeed is merely bravado?

But the other amusing thing about this screed is its focus on the CIA. Hayden treats this as danger experienced primarily by the CIA.

The CIA is asked to do things no one else is asked — or even allowed — to do. And when CIA officers agree to do these things (after appropriate authorization, judgment with regard to lawfulness and congressional notification), they believe that they have a contract with their government, not a particular administration, that the government will have their back legally, ethically and politically.That belief was shattered by the Obama administration’s actions. Agency officers were shown that those guarantees have the half-life of one election cycle in the American political process. No wonder one astute observer of the agency likened it to a car bomb going off in the driveway at Langley.

But what about JSOC?

After all, Awlaki has been on JSOC’s kill list for longer than he has been on CIA’s. According to reporting, JSOC is as involved in the targeted killing program as CIA (as they were in the torture program). Why isn’t retired General Hayden worried about those killers?

Granted, there is a distinction. When civilians at the CIA target people for assassination, particularly those who pose no imminent threat, the claim that the killing is legal under the law of war is much weaker.

But for some reason, JSOC doesn’t have the need to trot out spokesmen to defend itself every third month, but CIA does.

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