We Will Always Be at War against Everyone

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As Spencer reported yesterday, the incoming Chair of the House Armed Services Committee Buck McKeon wants to revisit and expand the 2001 AUMF authorizing our war against al Qaeda.

The objective wouldn’t the “drop a new Authorization to Use Military Force, but to reaffirm and strengthen the existing one,” says an aide to McKeon who requested anonymity, “recognizing that the enemy has changed geographically and evolved since 2001.”

I’m thoroughly unsurprised by this. As I pointed out the other day, if we’re going to hold Khalid Sheikh Mohammed solely using the justification of the AUMF, then we’re going to want to make sure that AUMF is designed to last forever; otherwise, KSM would be entitled to get out when–for example–we withdraw from Afghanistan. Frankly, I expect the Administration will be happy to be forced to accept another AUMF, because it’ll get them out of some really terrible arguments they’ve been making as they try to apply the AUMF to detention situations it clearly doesn’t apply to.

But there are two other aspects to a “reaffirmed and strengthened” AUMF. As McKeon’s aide notes, the enemy has changed geographically, moving to Yemen and Somalia. A new AUMF will make it easier to build the new bases in Yemen they’re planning.

The U.S. is preparing for an expanded campaign against al Qaeda in Yemen, mobilizing military and intelligence resources to enable Yemeni and American strikes and drawing up a longer-term proposal to establish Yemeni bases in remote areas where militants operate.

And I would bet that the AUMF is drafted broadly enough to allow drone strikes anywhere the government decides it sees a terrorist.

Which brings us to the most insidious part of a call for a new AUMF: the “homeland.” The AUMF serves or has served as the basis for the government’s expanded powers in the US, to do things like wiretap Americans. Now that the Republicans know all the powers the government might want to use against US persons domestically, do you really think they will resist the opportunity to write those powers into an AUMF (whether through vagueness or specificity), so as to avoid the quadrennial review and debate over the PATRIOT Act (not to mention the oversight currently exercised by DOJ’s Inspector General)? The only matter of suspense, for me, is what role they specify for drones operating domestically…

Remember, John Yoo once wrote an OLC memo claiming that because of the nature of this war the military could operate in the US with no limitations by the Fourth Amendment. That memo remained in effect for seven years. We know where they want to go with this permanent war against terror.

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Unconstitutional Surveillance & United States v. U.S. District Court: Who The Winner Is May Be A Secret – Part 1

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[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. What follows today is Part I. – Mary]

It was a time of war. America had been attacked in the Gulf of Tonkin. The National Security Agency (NSA) and our military had reassured us this was true. Our national security apparatus, Congress and press had joined behind the office of the President to lead us into a series of forays (Vietnam, Laos, Cambodia) that would leave tens of thousands of American soldiers dead and many times that wounded physically or mentally, while at the same time decimating over three million Vietnamese and over a 1.5 million Laotians and Cambodians.

At home, we were working our way through the civil rights movement, dealing with the cold war and threats of Russian nuclear weapons and witnessing anti-war protests that left students dead and buildings bombed. Algeria was hosting U.S. fugitives from justice, Eldridge Cleaver and Timothy Leary, while Cuban connections were alleged to be behind much of the organized anti-war movement.

Court martial proceedings had begun for the My Lai killings with polls showing most of America objected to the trial. President Nixon would later pardon Lt. Calley for his role. A trial had also, briefly, seemed to be in the works for the “Green Beret Affair,” the killing of Thai Khac Chuyen by Green Berets running an intelligence program called Project GAMMA. The investigation began after one of the soldiers assigned to the Project became convinced that he was also being scheduled for termination. Charges in the Green Beret Affair would be dropped after the CIA refused to make personnel available, claiming national security privileges.

Against this backdrop, Nixon and his campaign manager – attorney general, John Mitchell (the only Read more →

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What Bush and Ashcroft Meant By “If al-Qaida Is Calling”

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Remember when George W. Bush defended his illegal warrantless surveillance program with these lines:

We are at war with an enemy who wants to hurt us again …. If somebody from Al Qaeda is calling you, we’d like to know why,” he said. “We’re at war with a bunch of coldblooded killers.

…when we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so … We’re at war, and as commander in chief, I’ve got to use the resources at my disposal, within the law, to protect the American people

That statement was made on January 2, 2006 in direct response to a question Bush got about Jim Risen and Eric Lichtblau’s blockbuster article in the New York Times exposing the illegal program that went to print just two weeks prior.

Since those early days of realizing the United States government was running an illegal and unconstitutional spy surveillance operation on its own citizens, we have learned an awful lot. For too many citizens, it does not even seem to hold interest. Today, the Center for Constitutional Rights reminds us what the Bush Administration was really up to, how patently absurd it was and just how big of a lie George Bush fostered on the American public. Turns out “If al-Qaida is calling” meant random government searches of phone books for Muslim sounding names and taking crank phone calls.

From a CCR press release I just received:

Today, the Center for Constitutional Rights (CCR) announced that six new plaintiffs have joined a federal, class action lawsuit, Turkmen v. Ashcroft, challenging their detention and mistreatment by prison guards and high level Bush administration officials in the wake of 9/11. In papers filed in Federal Court in Brooklyn, CCR details new allegations linking former Attorney General Ashcroft and other top Bush administration officials to the illegal roundups and abuse of the detainees.

Five of the plaintiffs in the original lawsuit won a $1.26 million settlement in November 2009. Read more →

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Surveillance, Spying, and Racial Profiling in Obama Era

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I’m watching a panel on online surveillance with Safir Ahmed (who edited Anatomy of Deceit and all of Markos’ books), Josh Gerstein, Farhana Khera, Michelle Richardson, and Adam Serwer.

Safir starts with a question about what has changed.

Gerstein: We don’t have a really good idea of what they’re doing with surveillance and racial profiling. We haven’t seen a lot of substantive changes. Gitmo closure, 9/11 trials, photos of detainee abuse. Admin fighting wiretapping lawsuits as aggressively as the Bush Administration did. Very against any dialogue with those on terrorist list. Privacy and Civil Liberties board, Obama hasn’t appointed anyone. Obama Admin a lot more careful about using terms like Islamic terrorism.

Khera (reported to Russ Feingold, dealt w/PATRIOT, Exec Director of Muslim Advocates): WaPo Top Secret just scratched the surface of the problem of IIC. Profiling at the border. Describes a woman scheduled to get married to a British man of Pakistani decent. US govt refused him a visa. She had to cancel wedding.

Richardson (now at ACLU, used to work for Conyers): Anything that goes over the internet, they’re collecting. One thing we can look at is PATRIOT Act. Obama did oppose reasonable limits on PATRIOT. Section 215. Can be hard drive of your work computer, can be entire database of information. No limit of what they can get. Opposed efforts to reform NSL authority. Laws have moved in one direction since 9/11: toward collecting information on innocent people. Raises efforts to require review of programs in Intell Communities. FISA Amendments Act expiring during Presidential year.

Serwer: Two big changes to highlight. Aftermath of Christmas bomber, DHS and Justice now regularly meet with Muslim groups to talk about national security, wasn’t going on under Bush. During Bush Admin, you had Dems in Congress strident about opposing abuses. Now Dems who once attacked PATRIOT now insisting that these powers are needed. SJC which had some of the most articulate critics of Bush passed their version of PATRIOT w/o any of changes that Feingold suggested. Feingold: What is this the prosecutors committee. (An implicit damnation of Whitehouse and Leahy, who were two who changed their stance on these issues.) DOJ now suing AZ over draconian illegal immigration law, but FBI guidelines allow profiling in surveillance. Muslim community most important asset, but that conflicts w/putting Muslim community under constant surveillance.  Most important thing in WaPo piece–can’t figure out if this is making us safer. Information overload problem.

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Google Boondoggle With No Such Agency

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spy-who-loved-meEllen Nakashima has a startling, but I guess unsurprising, article in this morning’s Washington Post on internet giant Google’s new partnership with the NSA:

Under an agreement that is still being finalized, the National Security Agency would help Google analyze a major corporate espionage attack that the firm said originated in China and targeted its computer networks, according to cybersecurity experts familiar with the matter. The objective is to better defend Google — and its users — from future attack.

Google and the NSA declined to comment on the partnership. But sources with knowledge of the arrangement, speaking on the condition of anonymity, said the alliance is being designed to allow the two organizations to share critical information without violating Google’s policies or laws that protect the privacy of Americans’ online communications. The sources said the deal does not mean the NSA will be viewing users’ searches or e-mail accounts or that Google will be sharing proprietary data.

The article indicates Google initiated the matter by approaching the NSA after the recent discovery of intrusive attacks by Chinese interests last month, which is interesting in light of the fact Google made a point of publicly stating in 2008 they had never cooperated with the NSA on the Terrorist Surveillance Program.

Nakashima also notes that NSA is also soliciting involvement of the FBI and Department of Homeland Security. You have to wonder exactly what the FBI and DHS are going to lend that NSA cannot if this is truly just technical advice, because neither agency is particularly known for its geeky brilliance with computers. You would have to wonder is this is not a step in the direction of the “cyber protection” program the government has been hinting at initiating for some time now.

More from Nakashima and the Post:

“As a general matter,” NSA spokeswoman Judi Emmel said, “as part of its information-assurance mission, NSA works with a broad range of commercial partners and research associates to ensure the availability of secure tailored solutions for Department of Defense and national security systems customers.”

Despite such precedent, Matthew Aid, an expert on the NSA, said Google’s global reach makes it unique.

“When you rise to the level of Google . . . you’re looking at a company that has taken great pride in its independence,” said Aid, author of “The Secret Sentry,” a history of the NSA. “I’m a little uncomfortable with Google cooperating this closely with the nation’s largest intelligence agency, even if it’s strictly for defensive purposes.”

Mr. Aid isn’t the only one a little uncomfortable with this new spirit of cooperation between the world’s most spooky governmental spy agency and the world’s most ubiquitous information technology and database company. And so the descent down the slippery slope picks up a little more speed.

(Image courtesy of SearchEngineWatch.com, a very nice resource by the way)

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What Glenn Greenwald Said On American Terrorism Cowardice

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Just go read it. Because every word Glenn Greenwald wrote in his post today, entitled Nostalgia for Bush/Cheney Radicalism, is the gospel truth. It is rare that you will see a post here just pointing you somewhere else because the other source says it all. This is one of those times. Here is a taste:

How much clearer evidence can there be of how warped and extremist we’ve become on these matters? The express policies of the right-wing Ronald Reagan — “applying the rule of law to terrorists”; delegitimizing Terrorists by treating them as “criminals”; and compelling the criminal prosecution of those who authorize torture — are now considered on the Leftist fringe. Merely advocating what Reagan explicitly adopted as his policy — “to use democracy’s most potent tool, the rule of law against” Terrorists — is now the exclusive province of civil liberties extremists. In those rare cases when Obama does what Reagan’s policy demanded in all instances and what even Bush did at times — namely, trials and due process for accused Terrorists — he is attacked as being “Soft on Terror” by Democrats and Republicans alike. And the mere notion that we should prosecute torturers (as Reagan bound the U.S. to do) — or even hold them accountable in ways short of criminal proceedings — is now the hallmark of a Far Leftist Purist. That’s how far we’ve fallen, how extremist our political consensus has become.

Now go read the rest and weep for your country.

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Feingold, Durbin, and Wyden Demand the OLC Opinion on Exigent Letters

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As I reported yesterday, the Dawn Johnsen-less OLC wrote an opinion on January 8 retroactively authorizing the FBI’s inappropriate use of the exigent letters to snoop on Americans’ telecomm records.

Now, Senators Feingold, Durbin, and Wyden, have demanded that opinion from Eric Holder. Of note, they tie their demand into DOJ IG Glenn Fine’s comment that DOJ should notify Congress of the opinion and this use of exigent letters so it can consider legislation on that count.

We write specifically because we believe the Department should immediately provide to Congress a copy of the January 8, 2010, Office of Legal Counsel (OLC) opinion that is referenced in the OIG report and that apparently interprets the FBI’s authority to obtain phone records. Although much of the information about the OLC opinion is redacted in the public version of the OIG report, the opinion appears to have important implications for the rights of Americans. The report states that “the OLC agreed with the FBI that under certain circumstances [REDACTED] allows the FBI to ask for and obtain these [phone] records on a voluntary basis from the providers, without legal process or a qualifying emergency.” (p. 264) It further states that “we believe the FBI’s potential use of [REDACTED] to obtain records has significant policy implications that need to be considered by the FBI, the Department, and the Congress.” (p. 265) And finally, it states that the OIG recommends “that the Department notify Congress of this issue and of the OLC opinion interpreting the scope of the FBI’s authority under it, so that Congress can consider [REDACTED] and the implications of its potential use.” (p. 268)

In light of the OIG’s recommendation, please provide Congress with the January 8 OLC opinion immediately.

Remember, as members of the Senate Judiciary Committee, Feingold and Durbin (and probably Senate Intelligence Committee member Wyden) have seen the unredacted report, including a description of the OLC’s agreement of the FBI’s use of the letters. And now they’re demanding the opinion itself.

Though, you’d think that, given Fine’s recommendation that DOJ “notify Congress … of the OLC opinion,” the Senate wouldn’t have had to ask.

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Obama Gorging Himself on Poison Fruit

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Okay, I still haven’t gotten through the IG Report on exigent letters. But Ryan Singel at Threat Level has–and he made a really disturbing find. Obama’s OLC (the one that Dawn Johnsen might have been leading if anyone had pressured Arlen Specter when he flipped parties) legalized the illegal use of exigent letters several weeks ago.

But in a surprise buried at the end of the 289-page report, the inspector general also reveals that the Obama administration issued a secret rule almost two weeks ago saying it was legal for the FBI to have skirted federal privacy protections.

The Obama administration retroactively legalized the entire fiasco via a secret ruling from the Office of Legal Counsel.

That’s the same office from which John Yoo blessed President George W. Bush’s Bush’s torture techniques and warrantless wiretapping of Americans’ communications that crossed the border.

In the report’s final and heavily censored section, it discloses that the Office of Legal Counsel issued an opinion almost two weeks ago that it was legal for the FBI to obtain Americans’ phone records in the same manner that was harshly criticized by the inspector general’s report.

The inspector general also warned that the Office of Legal Counsel’s ruling needs to be considered by Congress.

Basically, it seems Obama attempted to make all the poison fruit based on these illegal searches legal by using the same tactic David Addington would–by having a lawyer at OLC make it okay.
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The Exigent Letter IG Report

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Remember how I suggested that yesterday’s WaPo story on exigent letters might be an attempt to pre-empt the IG Report?

Well, here’s that IG Report.

I’m working on a longer post, but MadDog can’t wait, so consider this a working thread.

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The FBI's Non-Emergency Exigent Letters

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The WaPo has a story out describing how the FBI, from 2002 until 2006, used exigent letters to collect phone records without the proper underlying terrorist justification.

The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.

[snip]

FBI officials told The Post that their own review has found that about half of the 4,400 toll records collected in emergency situations or with after-the-fact approvals were done in technical violation of the law. The searches involved only records of calls and not the content of the calls. In some cases, agents broadened their searches to gather numbers two and three degrees of separation from the original request, documents show.

MadDog has helpfully linked to a collection of all the emails included individually in the WaPo story.

There are a couple of details I find particularly interesting in this story. First,the exchange showing top FBI officials trying to collect phone records “related to a terrorist organization with ties to the US,” based on an underlying cable that FBI refused to share internally.

Separately, Kopistansky in the FBI general counsel’s office learned in mid-December 2004 that toll records were being requested without national security letters. She handled a request that originated from then-Executive Assistant Director Gary Bald, who had “passed information regarding numbers related to a terrorist organization with ties to the US” and obtained toll records, the memos show.

The communications analysis unit asked Kopistansky to “draw up an NSL” to cover the search, but she was unable to get superiors to tell her which open terrorism case it involved.

Call me crazy, but since we know the FBI and NSA were illegally wiretapping organizations like al-Haramain in 2004, you have to wonder whether this was an attempt to clean up poison fruit from earlier, even more illegal surveillance.

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