The reauthorization of the PATRIOT Act focused a lot of attention on the fact that the Administration is interpreting the phrase “relevant to an authorized [intelligence] investigation” in Section 215 of the PATRIOT Act very broadly. As Ron Wyden and Mark Udall made clear, the government claims that phrase gives it the authority to collect business records on completely innocent people who have no claimed tie to terrorism.

There’s something that’s been haunting me since the PATRIOT reauthorization about how the government has defined intelligence investigations in the past. It has to do with Ted Olson’s claim–during the In Re Sealed Case appeal in 2002–that the government ought to be able to use FISA to investigate potential crimes so as to use the threat of prosecuting those crimes to recruit spies (and, I’d suggest, informants). When Olson made that claim, even Laurence Silberman (!) was skeptical. Silberman tried to think of a crime that could have no imaginable application in an intelligence investigation, and ultimately came up with rape. But Olson argued the threat of a rape prosecution might help the Feds convince a rapist to “help us.”

OLSON: And it seems to me, if anything, it illustrates the position that we’re taking about here. That, Judge Silberman, makes it clear that to the extent a FISA-approved surveillance uncovers information that’s totally unrelated — let’s say, that a person who is under surveillance has also engaged in some illegal conduct, cheating —

JUDGE LEAVY: Income tax.

SOLICITOR GENERAL OLSON: Income tax. What we keep going back to is practically all of this information might in some ways relate to the planning of a terrorist act or facilitation of it.

JUDGE SILBERMAN: Try rape. That’s unlikely to have a foreign intelligence component.

SOLICITOR GENERAL OLSON: It’s unlikely, but you could go to that individual and say we’ve got this information and we’re prosecuting and you might be able to help us. I don’t want to foreclose that.

JUDGE SILBERMAN: It’s a stretch.

SOLICITOR GENERAL OLSON: It is a stretch but it’s not impossible either. [my emphasis]

Olson went on to claim that only personal revenge in the guise of an intelligence investigation should be foreclosed as an improper use of FISA.

JUDGE SILBERMAN: In your brief you suggested only that the face of the application indicated something was wrong. I don’t quite understand what would be wrong though. The face of the application, suppose the face of the application indicated a desire to use foreign surveillance to determine strictly a domestic crime, that would be — but then you wouldn’t have an agent, you wouldn’t have an agency. You must have some substantive requirement here if significant purpose is given its literal meaning, you must have some logic to the interpretation of that section which falls outside of the interpretation of an agent of a foreign power.

SOLICITOR GENERAL OLSON: And I suppose if the application itself revealed that there was a purpose to take personal advantage of someone who might be the subject of an investigation, to blackmail that person, or if that person had a domestic relationship and that person was seeing another person’s spouse or something like that, if that would be the test on the face of things. In other words, I’m suggesting that the standard is relatively high for the very reason that it’s difficult for the judiciary to evaluate and secondguess what a high level executive branch person attempting to fight terrorism is attempting to do.

This is not just Ted Olson speaking extemporaneously. The government’s appeal actually makes its plan to use FISA-collected information to recruit spies (and informants), in the name of an intelligence investigation, explicit:

Although “foreign intelligence information” must be relevant or necessary to “protect” against the specified threats, the statutory definition does not limit how the government may use the information to achieve that protection. In other words, the definition does not discriminate between protection through diplomatic, economic, military, or law enforcement efforts, other than to require that those efforts be “lawful.” 50 U.S.C. 1806(a), 1825(a). Thus, for example, where information is relevant or necessary to recruit a foreign spy or terrorist as a double agent, that information is “foreign intelligence information” if the recruitment effort will “protect against” espionage or terrorism.

[snip]

Whether the government intends to prosecute a foreign spy or recruit him as a double agent (or use the threat of the former to accomplish the latter), the investigation will often be long range, involve the interrelation of various sources and types of information, and present unusual difficulties because of the special training and support available to foreign enemies of this country. [my emphasis]

Ultimately, the FISA Court of Review rejected this broad claim (though without discounting the possibility of using FISA to get dirt to use to recruit spies and informants explicitly).

The government claims that even prosecutions of non-foreign intelligence crimes are consistent with a purpose of gaining foreign intelligence information so long as the government’s objective is to stop espionage or terrorism by putting an agent of a foreign power in prison. That interpretation transgresses the original FISA. It will be recalled that Congress intended section 1804(a)(7)(B) to prevent the government from targeting a foreign agent when its “true purpose” was to gain non-foreign intelligence information–such as evidence of ordinary crimes or scandals. See supra at p.14. (If the government inadvertently came upon evidence of ordinary crimes, FISA provided for the transmission of that evidence to the proper authority. 50 U.S.C. 1801(h)(3).) It can be argued, however, that by providing that an application is to be granted if the government has only a “significant purpose” of gaining foreign intelligence information, the Patriot Act allows the government to have a primary objective of prosecuting an agent for a non-foreign intelligence crime. Yet we think that would be an anomalous reading of the amendment. For we see not the slightest indication that Congress meant to give that power to the Executive Branch. Accordingly, the manifestation of such a purpose, it seems to us, would continue to disqualify an application. That is not to deny that ordinary crimes might be inextricably intertwined with foreign intelligence crimes. For example, if a group of international terrorists were to engage in bank robberies in order to finance the manufacture of a bomb, evidence of the bank robbery should be treated just as evidence of the terrorist act itself. But the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes. [my emphasis]

Understand what this exchange meant in 2002: the government claimed that it could use FISA to collect information on people that they could then use to persuade those people to become spies or informants. That all happened in the context of broadened grand jury information sharing under PATRIOT Act. Indeed, the FISA application in question was submitted at almost exactly the same time as OLC wrote a still-secret opinion interpreting an “implied exception” to limits on grand jury information sharing for intelligence purposes.

[OLC] has concluded that, despite statutory restrictions upon the use of Title III wiretap information and restrictions on the use of grand jury information under Federal Rule of Criminal Procedure 6(e), the President has an inherent constitutional authority to receive all foreign intelligence information in the hands of the government necessary for him to fulfill his constitutional responsibilities and that statutes and rules should be understood to include an implied exception so as not to interfere with that authority. See Memorandum for the Deputy Attorney General from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Effect of the Patriot Act on Disclosure to the President and Other Federal Officials of Grand Jury and Title III Information Relating to National Security and Foreign Affairs 1 (July 22, 2002);

It seems possible the government was hoping to take grand jury allegations, use FISA to investigate them, and in turn use what they found to recruit spies and informants. The one limit–and it is a significant one–is that the government would first have to make a plausible argument that the potential target in question was an agent of a foreign power.

Of course, at precisely that same time–and apparently unbeknownst to Ted Olson (I have emailed Olson on this point but he did not respond)–the government was using new data mining and network analysis approaches to establish claimed ties between Americans and al Qaeda. And the bureaucracy Royce Lamberth and James Baker had implemented to prevent such claimed ties to form the basis for FISA applications–an OIPR chaperone for all FISA applications–was rejected by the FISCR in this case. So while FISA required the government show a tie between a target and a foreign power, there was little to prevent the government from using its nifty new data mining to establish that claim. And remember, NSA twice explicitly chose not to use available means to protect Americans’ privacy as it developed these data mining programs; it made sure it’d find stuff on Americans.

(Interesting trivia? Olson used the phrase “lawful” to describe the limits on what FISA allows the President to do at least 6 times in that hearing.)

Moreover, while the FISCR ruling held (sort of–but probably not strongly enough that John Yoo couldn’t find a way around it) that the government couldn’t use FISA to gather dirt to turn people into spies and informants, it never actually argued the government couldn’t use other surveillance tools, including the PATRIOT Act, to dig up dirt to use to recruit spies and informants, at least not in this FISCR ruling. The limit on using FISA for such a purpose came from court precedents like Keith, not any apparent squeamishness about using government surveillance to dig up dirt to recruit spies.

The Senate Intelligence Committee presumably had what was supposed to be a meeting on the government’s very broad interpretation of data it considers “relevant to an authorized [intelligence] investigation” today. We know that one of the concerns is that the government claims it can use Section 215 to collect information on people with no ties to terrorism. Ted Olson’s claim we could use FISA to recruit informants make me wonder how they’re using the information they collect on people with no ties to terrorism. After all, the ability to collect bank records on someone–or geolocation–might provide an interesting evidence with which to embarrass them into becoming an informant.

The Southern Poverty Law Center has an interview with the guy who headed DHS’ domestic terrorism analysis that produced the report on the rise in domestic right wing extremism, Daryl Johnson. (h/t Aravosis) He describes how, after the report was leaked, DHS first backed off its support of the report.

What happened after the leak?

I got to the office, and there were lots of phone calls. Citizens were angry. People wanted to speak to DHS authorities. I was very distraught. I felt I could talk to my peers, but beyond that, I couldn’t speak for myself. The public affairs office was doing all the PR and media response. We weren’t consulted on anything. If I could have responded, I would have said this is why we wrote this. But the response DHS provided just fueled the public’s speculation.

What about Napolitano?

Napolitano initially supported the report. She issued an official press release [on April 14, 2009] that said DHS has the authority to look at all types of threats. And we need to be vigilant. It was very supportive and direct.

Unfortunately, not too many people listened, and they kept applying political pressure. She held a couple of press conferences, trying to put out that same message. And people just kept continuing the pressure, especially after Congress got involved. [Editor’s note: For example, U.S. Rep. Pete Hoekstra (R-Mich.), then the ranking member of the Permanent Select Committee on Intelligence, wrote to Napolitano to complain about what he called “a shoddy, unsubstantiated, and potentially politicized work.”]

I don’t know whether her staff advised her to, but she eventually backtracked. The DHS press spokesman came up with this story that it was all unauthorized and orchestrated by a rogue group of analysts. DHS caved in.

And then, DHS effectively gutted the unit focused on domestic terrorism.

What happened to your DHS unit?

When the right-wing report was leaked and people politicized it, my management got scared and thought DHS would be scaled back. It created an environment where my analysts and I couldn’t get our work done. DHS stopped all of our work and instituted restrictive policies. Eventually, they ended up gutting my unit. All of this happened within six to nine months after the furor over the report. Analysts then began leaving DHS. One analyst went to ICE [U.S. Immigration and Customs Enforcement], another to the FBI, a third went to the U.S. Marshals, and so on. There is just one person there today who is still a “domestic terrorism” analyst.

Since our report was leaked, DHS has not released a single report of its own on this topic. Not anything dealing with non-Islamic domestic extremism—whether it’s anti-abortion extremists, white supremacists, “sovereign citizens,” eco-terrorists, the whole gamut.

Johnson also reviews that the sole source of sensitivity within DHS came from the Civil Rights and Civil Liberties group, which argued that material support for domestic terrorists did not make one a right wing extremist.

Did your report generate controversy inside DHS?

This is how it happened. I got a tasking from the secretary, which demanded a quick turnaround. We went through all the necessary coordination; many people reviewed the draft and made comments. Several people signed off on the report: two supervisors, the Office of General Counsel, multiple editors, etc. The Office of Privacy signed off, and the Office of Policy had no suggestions.

The secretary doesn’t oversee agency reports. She couldn’t do it, given the number of agencies generating multiple reports a day. As a result, heads of DHS’ agencies have authority to review work, coordinate with other agencies, approve and disseminate reports.

One office raised issues — the Office of Civil Rights and Civil Liberties [CRCL]. At the time, we weren’t required to give them the report, but my boss thought we should run it past them. They had edits, but the main issue related to the definition of right-wing extremism. That office wanted a narrow definition limited to violent groups and individuals. Our subject-matter experts and management felt the definition needed to be broader.

Under CRCL’s definition, if you were in the Klan, burned crosses, had a terrorist in your house and donated money to groups advocating violence, you still would not qualify as a right-wing extremist. Our attorneys basically told them, “We appreciate your input, but we are approving the more broad definition.” This ended up being a sore point with CRCL once the document was released.

Now, I’m actually sort of glad the CRCL spoke up, if only because it shows that someone is reviewing stuff like this.

But CRCL was essentially advocating a double standard for terrorism, such that peaceniks supporting peace in Colombia could be imprisoned for years for offering less support to terrorists than right wingers did. There’s a reasonable historic legal justification for that standard.

But it–along with the way our government chose to stop tracking right wing terrorists when a bunch of right wingers made noise–shows the fundamental lie at the heart of our concern for terrorism.

As I said in this comment, we’re going to have to wait until the Canadian court releases more details on the failed extradition of Peter Alfred Adekeye to get a better sense of what the government did to piss off the court so badly. But this is my attempt to  the crux of the matter.

The Adekeye deposition in Canada was set up in April 2010 for a several day time period in May. On May 19 at the deposition, Adekeye admitted to accessing Cisco’s website perhaps five times, though he said a Cisco employee had offered him that access. That part of his deposition was streamed back to Northern California. That same day–May 19–the arrest warrant was signed in the US (making it possible that Adekeye’s deposition served to establish the probable cause to arrest him). And the Magistrate who signed the US arrest warrant was the same Magistrate overseeing discovery in this case. By the time Adekeye was arrested on May 20, his lawyers had not yet had an opportunity to question Adekeye. In effect, Cisco had gotten 14 hours of unrebutted deposition from Adekeye, after which he became unavailable to his lawyers.

In response, his lawyers requested that the civil procedure be stayed and that the judge order an accelerated discovery from Cisco with regards to its involvement in getting Adekeye extradited. As they described in their motion for a stay,

Mr. Adekeye’s deposition commenced in Vancouver, Canada on May 18, 2010. After Cisco spent nearly fourteen (14) full hours deposing Mr. Adekeye, the proceedings were interrupted by the Royal Canadian Mounted Police, who were accompanied by additional uniformed Vancouver Police Officers. The Mounted Police informed counsel and the Special Master appointed by the Court to oversee Mr. Adekeye’s deposition, that they were there in order to effectuate the arrest of Mr. Adekeye. The Mounted Police presented to counsel and the Special Master a “Warrant For Provisional Arrest” issued pursuant to Section 13 of the Extradition Act, wherein the Honourable Mr. Justice Leask had executed a provisional arrest warrant for Mr. Adekeye. Attached to this provisional arrest warrant was a bench warrant issued by the Honorable Howard R. Lloyd—the assigned Magistrate Judge to this matter–for the arrest of Mr. Adekeye.

[snip]

At no point during these entire proceedings was there any mention to Mr. Adekeye or to his attorneys of a criminal investigation relating to the exact same facts underlying the instant civil lawsuit. Instead, Cisco insisted that the Court order Mr. Adekeye to be deposed, and proceeded to depose Mr. Adekeye for fourteen (14) hours. Despite having over three (3) days to do so, Cisco did not finish its questioning of Mr. Adekeye prior to his arrest. Mr. Adekeye’s attorneys, moreover, were entirely unable to question their client in order to clarify or develop Mr. Adekeye’s responses further. Because Mr. Adekeye is currently detained in Canada, without bail, he has not been able to review his testimony pursuant to Fed. R. Civ. P. 30, nor has he been able to otherwise summarize his testimony or prepare an affidavit to the Court requesting an extension of time to further brief the Underlying Motions.

In addition to the very real Fifth Amendment issues now a part of this case, Multiven fears that in the event the Court does not vacate or continue the supplemental briefing deadline and the June 7 hearing, Cisco will present, as evidence in support of its Underlying Motion, incomplete deposition testimony of a party witness. Such incomplete, one-sided and out of context evidence is entirely prejudicial to Multiven, and the Court should not consider it.

The judge denied both motions, largely because in the interim both parties had submitted briefs based on Adekeye’s deposition.

So in effect, the timing of the arrest accomplished two things. It gave Cisco an advantage in the civil case (insofar as Adekeye’s lawyers didn’t have a chance to depose him). But it also likely elicited evidence that supported Adekeye’s arrest warrant.

Within 2 months of the arrest, the judge ruled on the summary judgments, basically ruling against Adekeye. Here’s the logic he used to justify the claim that Adekeye got unauthorized access to Cisco’s compuuters.

Multiven admit that on one occasion Adekeye accessed secure areas of the Cisco network. They contend however, that a Cisco employee, Wes Olson, supplied Adekeye with his login and password, thus authorizing Adekeye to access the restricted website. (Multiven’s Opposition at 7-12.) It is undisputed that Wes Olson provided Adekeye with his login and “external” password. Olsen declares that the password was given to Adekeye “to give him access to Cisco’s network on one occasion, for a specific purpose.”10 However, it is also undisputed that an employee’s giving his login and password to Adekeye was a violation of Cisco’s policies, and thus Olson’s providing access to Adekeye in this manner did not constitute a valid authorization.

And here’s how he dismissed the Fifth Amendment concerns about the deposition.

On June 8, 2010, Multiven filed a Motion to Stay Counterclaims. (hereafter, “Motion to Stay,” Docket Item No. 234.) Multiven contend that further litigation of the counterclaims will jeopardize Adekeye’s Fifth Amendment privileges in parallel criminal proceedings arising out of the same factual circumstances. (Motion to Stay at 5-7.)

[snip]

Here, Adekeye has already voluntarily submitted declarations in support of Multiven’s briefs regarding the parties’ cross-motions for summary judgment and has been deposed extensively, including fourteen hours of deposition testimony that he voluntarily provided in Vancouver, Canada prior to his arrest. Without deciding whether Adekeye was sufficiently aware of the likelihood of criminal prosecution for his declarations and deposition testimony to effect a waiver of his Fifth Amendment rights,21 the Court finds that continuing the litigation will only minimally implicate Adekeye’s Fifth Amendment rights, given the extensive testimony he has already provided in this

case.

So that’s the real background to the settlement: Cisco had largely already won on their substantive claim, using evidence from Adekeye’s partial deposition. Which left Adekeye with the risk that continuing his anti-trust claim would expose him to ongoing risk on the criminal claims.

Now it does seem like Adekeye is vulnerable in the computer fraud charges (though presumably 5 of them, not 97). But at the same time, it does seem clear that the government used the deposition to set up–and probably collect evidence for–the arrest and with it the criminal case.

Canada has just discovered how much corporations own our legal system, how our legal system criminalizes whistleblowers, and our utter and total disdain for the rule of law.

At issue is the apparent conspiracy between Cisco and the US government to respond to an anti-trust lawsuit launched by Peter Alfred Adekeye, a former Cisco employee. He sued because of the way Cisco forced customers to buy a maintenance contract for things like bug fixes.

This lawsuit is about Cisco’s deliberate and continuing attempt to monopolize for itself (and its “partners” (Cisco-authorized resellers of Cisco equipment and services nationwide) with which it does not significantly compete) the service and maintenance of Cisco enterprise (Cisco networking equipment for all segments (e.g., internet service providers, government, academia, small, medium and large business, etc.) with the exception of home networking equipment) hardware, principally routers, switches and firewalls. Cisco possesses a market share of approximately 70% in the networking equipment industry.

[snip]

To protect its over $6 billion yearly stream of service and maintenance revenue, Cisco has cleverly and uniquely conditioned the provision of its software “updates” on the customer’s purchase of a hardware maintenance service agreement called “SMARTnet,”

[snip]

The effect of this leveraging of monopoly power and unlawful tie-in and/or bundling is to effectively preclude any non-Cisco affiliated Independent Service Organization (“ISO”) from competing for the business of servicing Cisco networking hardware, thus preserving for itself all but a pittance of that line of commerce which is separate and distinct from the “updates” of its software.

In response, Cisco counter-sued, accusing Adekeye of illegally accessing Cisco services. And Cisco either lied persuasively or got DOJ to conspire in the intimidation campaign, because DOJ then charged Adekeye with 97 violations that–the Canadian judge who just blew this up suggested–should have only amounted to one single violation.

The US also refused to allow Adekeye to enter the US after 2008, meaning he couldn’t testify in the litigation. Finally, in 2010, he flew to Canada to testify. At that point, the US had him arrested by the Mounties, based on false claims (among other things) that he was a shady Nigerian. He was held for four weeks, and then made to stay in Canada on restrictive bail conditions ever since as the US tried to have him extradited.

Justice [Ronald] McKinnon thought this case met the test and was flabbergasted by Adekeye’s “shocking” arrest during a judicial proceeding: “It is simply not done in a civilized jurisdiction that is bound by the rule of law.”

This was an egregious abuse of process and brought the administration of justice into disrepute, he concluded.

In his piece on this Sirota suggests that, if the US did conspire with Cisco, it probably did so in response to lobbying.

But I wonder if there’s not something more going on? Here’s how James Bamford described the government’s efforts to partner with Cisco on wiretapping in his book, The Shadow Factory.

One of the ways to covertly penetrate both the Internet and fiber-optic communications is to target their weakest point, the point where the systems interconnect–the routers.

[snip]

By discovering the weak spots and vulnerabilities of in this “postal service,” the NSA has the ability to target and intercept much of the electronic mail.

Thus, as [Deputy Director for Services Terry] Thompson further explained at the 1999 meeting, one of the NSA’s goals should be to hire away, on a short-term basis, people from key companies such as Cisco. Having hired them, the agency could use their knowledge and expertise to “reverse engineer” the systems and find ways to install back doors.

Just a gut level feel. If Adekeye’s initial suit hinted at something that played a key role in maintaining NSA’s access to all communications crossing Cisco’s routers, or if a successful suit would have made it harder to suck the worlds telecommunications off the network, that might explain the government’s seeming conspiracy with Cisco.

Alternately, maybe our government is just that fucking crazy.

Update: Here’s Cisco’s counterclaim against Adekeye. It claims, in part:

Adekeye, a former Cisco employee, founded Multiven in 2005. Under Adekeye’s direction, Multiven has, on multiple occasions, unlawfully accessed, downloaded, used, and distributed Cisco’s valuable proprietary information. Among other unlawful acts, Multiven improperly obtained a Cisco employee’s login credentials for password-protected areas of Cisco’s website. Adekeye and Multiven thereafter accessed these areas of Cisco’s website and, among other things, illegally downloaded Cisco’s copyrighted operating system software for use in its business and, on information and belief, for redistribution to others.

[snip]

During his five years as a Cisco employee, Adekeye acquired confidential inside knowledge regarding Cisco’s proprietary information, internal operations, security, and personnel. Adekeye’s employment with Cisco ended on May 6, 2005.

[snip]

Adekeye and Multiven used at least two improper means to learn about Cisco’s service techniques and proprietary information, including information regarding Cisco configurations and bug fixes. First, they illegally accessed Cisco’s password-protected website to view Cisco’s TAC services resources, some of which are contained in a database rich with technical guidance regarding network configurations and software-related information.

[snip]

Multiven and Adekeye concealed their illegal and otherwise improper conduct. As a result, Cisco, despite reasonable efforts and precautions, did not begin to discover Multiven’s and Aedkeye’s conduct until 2008.

Update: We don’t yet know when the criminal charges against Adekeye were filed. But as Mary noted to me via email, the current US Attorney in NDCA, Melinda Haag,a came from a firm–Orrick, Herrington & Sutcliffe–that does a lot of work for Cisco. Also, she was hired to be an AUSA by Robert Mueller.

Haag’s firm bio says she was recruited by then-U.S. Attorney Robert Mueller, now FBI Director, to join the Northern District office, based in San Francisco. (Mueller was U.S. Attorney there from 1998 to 2001.) Haag was chief of the office’s White Collar Crime Section, and in private practice, she has represented several corporate general counsels accused of improperly backdating stock options.

Update: Interesting. A portion of Adekeye’s May 20, 2010 deposition was entered into the civil suit docket on March 7, 2011, including the part where the Mounties come in and arrest him.

One of the things they appear to have been suggesting is that someone was paying Multiven to sue Cisco. In the unredacted parts, he is asked about individuals and/or corporations who funded the suit. But there’s a chunk redacted after that.

Update: Here’s a brief from Cisco objecting after Adekeye and Multiven suggested they had lured him to Canada to be arrested.

The Guardian uses an eye-popping stat from a hacker journalist–that a quarter of all hackers are FBI moles–to cement a a story about the FBI infiltrating hacker groups.

The underground world of computer hackers has been so thoroughly infiltrated in the US by the FBI and secret service that it is now riddled with paranoia and mistrust, with an estimated one in four hackers secretly informing on their peers, a Guardian investigation has established.

Cyber policing units have had such success in forcing online criminals to co-operate with their investigations through the threat of long prison sentences that they have managed to create an army of informants deep inside the hacking community.

[snip]

So ubiquitous has the FBI informant network become that Eric Corley, who publishes the hacker quarterly, 2600, has estimated that 25% of hackers in the US may have been recruited by the federal authorities to be their eyes and ears. “Owing to the harsh penalties involved and the relative inexperience with the law that many hackers have, they are rather susceptible to intimidation,” Corley told the Guardian.

The number is eye-popping. But there are two details about the story I want to note. First, it suggests that the FBI is recruiting its hacker-informants after catching them hacking. Oddly, though they consider Adrian Lamo among the hackers-moles they describe (indeed, the only one they name), they don’t question whether he just turned Bradley Manning in, or whether he was a more formal informant. Moreover, they don’t note that drug abuse, not hacking, would have been the potential crime Lamo committed in the weeks preceding his turning Manning in.

Also, note what kind of recruiting the story doesn’t address? DOD recruiting. Are all these hackers going straight from FBI to work in DOD’s cyberwars? Or is DOD recruiting a different set of hackers?

As Josh Gerstein just reported, the government has decided to withdraw some evidence against Thomas Drake rather than come up with CIPA substitutions that would give Drake the ability to defend himself. At issue is “NSA’s targeting of a particular telecommunications technology,” which the government wants to hide. To avoid mentioning it, they are now withdrawing four documents entirely and redacting references to the document in two other documents.

In Gerstein’s article, Steven Aftergood cautions that this won’t necessarily help Drake avoid prosecution.

The prosecutors’ decision has echoes of the 2009 Justice Department decision to drop its long-running prosecution of two pro-Israel lobbyists after a series of adverse rulings from a federal judge in Virginia. However, in Drake’s case, no charges have been dropped, just a portion of the proof the government wanted to offer.

“From the government’s point of view, this ruling is not a reason to reconsider the prosecution. They’re not pulling back. They’re simply reordering their case,” said Steven Aftergood, a classified information expert with the Federation of American Scientists.

“In the fantasy of Drake suppoorters, the [judge’s] ruling could have been a pretext for withdrawing the prosecution, as happened in the [American Israel Public Affairs Committee] case but that’s not choice they’ve made. They’ve said, ‘We’ll go ahead and work around that obstacle,’” Aftergood added.

That may well be the case. But I’m curious to see how Drake’s lawyers respond to this. The government has been trying (somewhat unsuccessfully) to exclude documents discussing the relative merits of ThinThread over Trailblazer on relevancy and hearsay grounds, including the IG Report at issue in the case. Mind you, none of them apparently discussed this technology (the government is withdrawing its own exhibits, not objecting on CIPA grounds to Drake’s). And Judge Richard Bennett obviously thought a somewhat revelatory description of this technology was important to Drake’s defense.

Ultimately, after all, Drake is planning to argue that the reason he saved certain documents was to demonstrate the inefficacy (and probably privacy problems) of the government’s plans. By withdrawing these documents–which obviously must have been relevant to the five charged documents–are they hurting Drake’s ability to make this argument?

Only in America could the head of the public prison system who retired in shame for breaking the law himself move onto a sinecure in the private prison industry. But that appears to be what Harley Lappin has done.

Mind you, both Lappin and the Bureau of Prisons claim that Lappin’s arrest for DUI had no connection with his retirement in March.

The director of the federal Bureau of Prisons has apologized to his staff for a February DUI arrest, which came to light after his announcement last Friday that he was retiring.

Harley Lappin had made no mention in his retirement statement Friday about his brush with the law in Annapolis, Maryland, after 3 a.m. on February 26.

[snip]

BOP spokeswoman Traci Billingsley said Lappin had decided “some months ago” to retire in the spring of 2011 and that his scheduled retirement date of May 7 has not changed.

That may well be true: after all, Lappin spent less than a month in retirement before joining the Corrections Corporation of America as Vice President. (h/t G.W. Schulz)

CCA (Corrections Corporation of America) (NYSE: CXW), America’s leader in partnership corrections, announced that effective June 1, 2011, Harley G. Lappin, 55, shall serve as Executive Vice President and Chief Corrections Officer (CCO). In this role, Mr. Lappin will be responsible for the oversight of facility operations, health services, inmate rehabilitation programs, purchasing and TransCor, the Company’s wholly-owned transportation subsidiary. He succeeds Richard P. Seiter, who announced his decision to step down as CCO earlier this year, effective May 31, 2011.

The timing sort of suggests that Lappin had no intention of retiring, but instead planned all along on joining the private prison industry.

Even if it weren’t for the fact that no one imprisons as many people as the United States, this seems like a remarkably American fairy tale, not just the move from a public position of trust to a capitalist position of exploitation, but the public fall as well.

DDay already noted Peter Diamond’s op-ed withdrawing his nomination as a Fed Governor. But I wanted to emphasize one thing:

It is time for me to withdraw, as I plan to inform the White House.

It appears that this very public complaint was how Diamond informed the White House he was withdrawing–not a discrete phone call.

That’s not the normal way nominees handle communications with the White House.

To be fair, Diamond focuses all of his criticism in the op-ed on the Republicans who believe a Nobel prize winner is unqualified to serve on the Fed. The op-ed itself does not criticize the White House’s handing of the nomination.

But if it’s true that this was Diamond’s way of informing the White House, then it suggests he’s pretty damned pissed at the White House as well. As well he should be–he got the same treatment Dawn Johnsen and Goodwin Liu did, with repeated renominations but no public fight (or recess appointment).

That club of good nominees hung out to dry by this White House is growing longer.

The event of the season is upon us! Yep, the men’s final at the French Open. This is just a quick post for the heck of it because, well, I have been a life long tennis fan (and even played some competitively as a junior); and, out of the blue, Ms. Wheeler is suddenly into the gig. So a tennis post was in order!

Now Roger Federer and Raphael Nadal have a rich history and storied rivalry together. That part is well known, what is not as well known is that they are also friends who work together to support charity playing bookend matches in each others home country; Zurich Switzerland for Fed and Madrid Spain for Raffa. Good stuff from a pair of good guys.

The men’s final at Roland Garros is somewhat unexpected as the conventional wisdom was that Fed could not make it past the blazing hot, and so far this year nearly invincible Novak Djokovic. But Fed was the Roger of old and took it to Novak in the semis in what was a simply outstanding and exciting match even though it only went four sets. That set up the unexpected surprise of yet another Nadal-Federer final in the French.

Nadal has had an uncharacteristically off clay court season so far:

This has not been an easy clay court season for Rafael Nadal who has to beat Roger Federer in Sunday’s French Open final at Roland Garros if he is to maintain his No. 1 ranking. A loss to Federer would mean that Novak Djokovic, beaten by Federer in that fantastic semifinal on Friday, would take over.

Nadal could have no complaints if that happened because Djokovic has beaten him in four ATP Masters Series finals this year with two — Madrid and Rome — being played on clay, the surface on which Nadal has reigned supreme. We still do not know the full effect these losses have had on the Spaniard but if his demeanor in the press conference he gave just before the women’s final began is anything to go by, his recent struggles are taking their toll.

I am pulling for the old man, Fed, to pull off a win for the geezers. I have a sneaking suspicion Marcy has her eyes on Nadal. So who you got?

Live coverage of the French Open Men’s Final is on NBC at 6 am EST and 9 am PST.

As fatster noted, Judge Kenneth Marra has allowed the suit against Chiquita for its support of Colombian terrorists to go forward. But the ruling is fascinating, because it holds that the plaintiffs can sue for Chiquita’s involvement in torture, but not for its involvement in terrorism.

Relying in part on a 1984 Robert Bork opinion finding there was ““international law and the rules of warfare as they now exist are inadequate to cope with this new mode of conflict,” Marra ruled the Alien Tort Statute doesn’t apply to terrorism. (Note, Marra also cited more recent District Court rulings on this issue.)

So in spite of our decade-long war against terrorism, it appears corporations can support terrorism in other countries and not be held liable.

But unlike terrorism, torture, extra-judicial killing, and crimes against humanity are widely recognized under international law to qualify for the ATS, so plaintiffs can sue for Chiquita’s involvement in it.

Marra also rejected Chiquita’s claim that it could not be held liable under the Torture Victims Protection Act.

Chiquita first argues that the “‘plain reading of the TVPA strongly suggests that it only covers human beings, and not corporations.’” First Mot. at 68 (DE 93) (quoting Exxon Mobil, 393 F. Supp. 2d at 28). This limitation to individuals, Chiquita contends, bars Plaintiffs’ TVPA claims against it, a corporation. Recent Eleventh Circuit precedents, however, hold that “‘an individual’ to whom liability may attach under the TVPA also includes a corporate defendant.” Sinaltrainal, 578 F.3d at 1264 n.13; see also Romero, 552 F.3d at 1315 (“Under the law of this

Circuit, the Torture Act allows suits against corporate defendants.”). Thus, under the precedent of this Circuit, the Court rejects Chiquita’s first basis for dismissal.

Particularly gratifying, a key part of Chiquita’s liability was its intent to support AUC’s violence. Marra notes, for example, that plaintiffs had shown Chiquita supported AUC in part to quell labor unrest.

The AUC’s agreement with Chiquita involved forcing people to work using threats and illegal violence, as well as the quelling of labor and social unrest through the systematic terrorization of the population of Uraba.

[snip]

The complaints here contain sufficient “‘factual content that allows the court to draw the reasonable inference’” that Chiquita assisted the AUC with the intent that the AUC commit torture and killing in the banana-growing regions.

So in American courts, corporations like Jeppesen helping the US commit torture won’t be held liable for torture. But corporations like Chiquita helping terrorists and other governments torture may well be held liable!