Edward Snowden’s revelations have shed much light on how secret government programs are collecting huge amounts of telephone, email and other electronic data generated by every US citizen even though, as Marcy has shown repeatedly, claims that collecting all of this data have enabled the capture of terrorists turn out to be significantly overblown. Sadly, it’s not just records of our communications that the government is collecting. The FBI is taking the lead in putting together what it calls Next Generation Identification. This program will expand the conventional FBI fingerprint database to include significant amounts of biological, or biometric data. From the FBI’s own description:

The future of identification systems is currently progressing beyond the dependency of a unimodal (e.g., fingerprint) biometric identifier towards multimodal biometrics (i.e., voice, iris, facial, etc.). The NGI Program will advance the integration strategies and indexing of additional biometric data that will provide the framework for a future multimodal system that will facilitate biometric fusion identification techniques. The framework will be expandable, scalable, and flexible to accommodate new technologies and biometric standards, and will be interoperable with existing systems. Once developed and implemented, the NGI initiatives and multimodal functionality will promote a high level of information sharing, support interoperability, and provide a foundation for using multiple biometrics for positive identification.

Wait. See that “etc.” in the “voice, iris, facial, etc”? Given the government’s behavior on electronic data, throwing in an “etc.” on biometric data is pretty unnerving. Impressive work is being done by the Electronic Privacy Information Center to shed light on just what the government is up to with Next Generation Identification. Here is their description of the program:

The Federal Bureau of Investigation is developing a biometric identification database program called “Next Generation Identification” (NGI). When completed, the NGI system will be the largest biometric database in the world. The vast majority of records contained in the NGI database will be of US citizens. The NGI biometric identifiers will include fingerprints, iris scans, DNA profiles, voice identification profiles, palm prints, and photographs. The system will include facial recognition capabilities to analyze collected images. Millions of individuals who are neither criminals nor suspects will be included in the database. Many of these individuals will be unaware that their images and other biometric identifiers are being captured. Drivers license photos and other biometric records collected by civil service agencies could be added to the system. The NGI system could be integrated with other surveillance technology, such as Trapwire, that would enable real-time image-matching of live feeds from CCTV surveillance cameras. The Department of Homeland Security has expended hundreds of millions of dollars to establish state and local surveillance systems, including CCTV cameras that record the routine activities of millions of individuals. There are an estimated 30 million surveillance cameras in the United States. The NGI system will be integrated with CCTV cameras operated by public agencies and private entities.

So just as the government has moved far beyond tapping communications only with a warrant to include the communications of innocent civilians, biometric identifiers of innocent civilians will be included in NGI alongside identifiers of known criminals. And what could possibly go wrong with our information being assembled in this way? Here’s how EPIC says the database will be built and maintained:

The NGI database will be used for both law enforcement and non-law enforcement purposes. It will be available to law enforcement agencies at the local, state, and federal level. But it will also be available to private entities, unrelated to a law enforcement agency. Using facial recognition on images of crowds, NGI will enable the identification of individuals in public settings, whether or not the police have made the necessary legal showing to compel the disclosure of identification documents. The New York City Police Department began scanning irises of arrestees in 2010; these sorts of records will be entered into NGI. The Mobile Offender Recognition and Information System (“MORIS”), a handheld device, allows officers patrolling the streets to scan the irises and faces of individuals and match them against biometric databases. Similarly, children in some school districts are now required to provide biometric identifiers, such as palm prints, and are also subject to vein recognition scans. Clear, a private company offering identity services based on biometric identifiers, attempted to sell the biometric database of its users after its parent company, Verified Identity Pass, declared bankruptcy. The transfer of the biometric database was blocked by a federal district court judge.

There is a substantial risk that personally identifiable information could be lost or misused as a result of the creation of the NGI system. Among the private contractors involved in the deployment of NGI are Lockheed Martin, IBM, Accenture, BAE Systems Information Technology, Global Science & Technology (“GST”), Innovative Management & Technology Services (“IMTS”), and Platinum Solutions. Arizona, Hawaii, Kansas, Maryland, Michigan, Missouri, Nebraska, New Mexico, Ohio, South Carolina, and Tennessee are actively participating in the NGI program. The FBI is pursuing an aggressive deployment of the NGI program, scheduled for completion and full deployment by 2014.

Okay, then. A huge program, costing hundreds of millions of dollars, is being assembled by the same cast of government contractors who have given us decades of cost-overruns and defective products. And they might even give access to the system to private entities? Wow.

Of course, we are expected to believe that this system will work just as it already does on NCIS when Abby or McGee puts a photo into their computer and the identity of the terrorist pops up five seconds later. But in a 300+ page document (pdf) EPIC obtained under FOIA, we have this little nugget that tells us the current state of the art when it comes to facial recognition software:

NGI shall return an incorrect candidate a maximum of 20% of the time.

Think about that. In putting out the specifications for the system to be developed (and that is planned to be implemented next year!), the government is willing to get for its huge investment a system that makes a false positive identification one in five times. That could put a very large number of entirely innocent people in a huge pile of trouble very quickly.

The problem is that current technology on facial recognition requires very high quality photographs, preferably full face, for identification to work. That is why it took so long to identify the Tsarnaev brothers even though surveillance photos had been found and both of them had identification photos in the database that was searched.

Putting NGI into full functionality before facial recognition software is ready and with so many innocent civilians in the database is a huge recipe for disaster. And of course, you can rest assured that the government will have built immunity into the system for both itself and the contractors responsible for building the system. I’m assuming that the victims of the false positive identifications will have little to no recourse in recovering the huge expenses they will face in proving their innocence. Many more lives are soon to be ruined at the expense of security theater.

I’ve just started reading up on Next Generation Identification, but from what I’ve seen so far, it looks to me like the biometric database is going to be a perfect clone of the electronic databases: huge haystacks that are incredibly expensive and of very limited to no value when most in need of producing results.

As Josh Gerstein reported last week, the Public Defenders Office for Southern District of NY and DOJ spent much of Tuesday and Wednesday fighting about whether Abu Anas al-Libi should get a lawyer. On Friday, Lewis Kaplan (who also presided over the Ahmed Ghailani trial) decided he should not.

Then, sometime over the weekend (that is, no more than 2 days after DOJ won the fight to continue to keep al-Libi detained with no lawyer) al-Libi was brought to NY, though he won’t show up in court until tomorrow.

One excuse the government is giving for the apparent change in plans is al-Libi’s health problems.

Al-Libi has longstanding health issues and will get medical testing while in custody to determine whether he needs treatment, U.S. officials said.

As Gerstein also noted, al-Libi’s floating interrogation came to an end before such time as the Red Cross would normally have opportunity to inspect the conditions of his detention.

All of which stinks.

I think several things may have happened:

• Something happened during al-Libi’s interrogation that worsened, or threatened to exacerbate, his health issues and the government realized they needed those health issues off their hands before they had another dead interrogee on their hands
• The government convinced itself they couldn’t sustain an enemy combatant under the AUMF claim
• The government decided al-Libi didn’t have much intelligence of worth so they’ll just deal him off now as if the whole floating interrogation never happened

Meanwhile, the press is generally reporting al-Libi’s (secret, over the weekend) arrival in NY as if it hails a new day, when the arguments the government made to detain him nevertheless remain unchallenged.

Update: This makes sense. Al-Libi had stopped taking food or water.

The decision to bring the suspect, Nazih Abdul-Hamed al-Ruqai, to New York came after he stopped eating and drinking aboard the Navy vessel, the San Antonio, which made his chronic health conditions worse, several officials said. Mr. Ruqai’s wife has said that her husband has a severe case of hepatitis C.

McClatchy did an interview with former national security official Ken Wainstein. He focuses on leaks, explaining how sometimes the “good leaks” don’t get prosecuted and admitting that overclassification is a problem.

But in response to McClatchy’s suggestion that Edward Snowden’s leaks are good, Wainstein responds in a bizarre fashion — by bringing up an entirely different leak.

Q: Do you weigh the public’s interest in the information that was leaked and whether it served the public good? For example, would you weigh whether Snowden’s actions triggered a broader debate about classified programs that the public should have known more about?

A: I think prosecutors would look at the intent of the leaker and what that person was intending to do.

But you wouldn’t have consensus that (the Snowden leak) was the best way to bring about this debate and that there hasn’t been damage. Just last week, for example, there was talk about how al Qaeda has shut down some of its communications because of aleak. I wouldn’t say it’s a given that it’s in the public interest that these disclosures are out there.

Wainstein’s talking, of course, of the NYT report that the public reports about the AQAP conference call story caused the terrorists to start using other communication methods.

But there are several problems with his claim. First, as I’ve pointed out, there’s a significant likelihood the leak in question came from AQAP sympathizers in the Yemeni government; in any case the leak was sourced to a broadly known fact in Yemen, not the US.

More importantly, the entire point of the story was that that AQAP leak had done more damage than all of Edward Snowden’s leaks. In fact, when criticized for the story, NYT’s editor pointed to that comparative fact as the entire point of the story.

He also said that many of the critics of the story “are missing part of the news here – that Snowden has not given away the store” in terms of harming national security or counterterrorism efforts.

The article, Mr. Hamilton said, “told an important and surprising story given the focus on Edward Snowden and the N.S.A. leaks. It had the kind of detail about terrorist operations that only reporters with long experience in national security coverage – and sources they can trust – can uncover.”

In other words, in response to a suggestion that Snowden’s leak did more harm than good, Wainstein points to a story that, even if the emphasis was wrong, pointed out that Snowden hadn’t done much damage.

Maybe Wainstein brought it up to suggest that McClatchy had better watch out; the AQAP story was also a McClatchy story. He’d be better off thanking McClatchy for making it clear someone in Yemen doesn’t keep our secrets very well.

But I guess that would ruin his entire scold about Edward Snowden.

As predicted, one big takeaway from yesterday’s NSA hearing (the other being the obviously partial disclosure about location tracking) is Keith Alexander’s admission that rather than 54 “plots” “thwarted” in the US thanks to the dragnet, only one or maybe two were. Here are some examples.

But they’re missing this real scandal about the government’s lies about the central importance of Section 215.

That scandal started 4 years ago, when an example the FBI now admits had limited import played a critical role in the reauthorization of Section 215 without limits on the dragnet authority.

First, note that even while Leahy got Alexander to back off his “54 plots” claim, the General still tried to insist Section 215 had been critical in two plots, not just one.

SEN. LEAHY: Let’s go into that discussion, because both of you have raised concerns that the media reports about the government surveillance programs have been incomplete, inaccurate, misleading or some combination of that. But I’m worried that we’re still getting inaccurate and incomplete statements from the administration.

For example, we have heard over and over again the assertion that 54 terrorist plots were thwarted by the use of Section 215 and/or Section 702 authorities. That’s plainly wrong, but we still get it in letters to members of Congress; we get it in statements. These weren’t all plots, and they weren’t all thwarted. The American people are getting left with an inaccurate impression of the effectiveness of NSA programs.

Would you agree that the 54 cases that keep getting cited by the administration were not all plots, and out of the 54, only 13 had some nexus to the U.S. Would you agree with that, yes or no?

DIR. ALEXANDER: Yes.

SEN. LEAHY: OK. In our last hearing, Deputy Director Inglis’ testimony stated that there’s only really one example of a case where, but for the use of Section 215, bulk phone records collection, terrorist activity was stopped. Is Mr. Inglis right?

DIR. ALEXANDER: He’s right. I believe he said two, Chairman; I may have that wrong, but I think he said two, and I would like to point out that it could only have applied in 13 cases because of the 54 terrorist plots or events, only 13 occurred in the U.S. Business Record FISA was only used in (12 of them ?).

SEN. LEAHY: I understand that, but what I worry about is that some of these statements that all is — all is well, and we have these overstatements of what’s going on — we’re talking about massive, massive, massive collection. We’re told we have to do that to protect us, and then statistics are rolled out that are not accurate. It doesn’t help with the credibility here in the Congress; doesn’t help with the credibility with us, Chairman, and it doesn’t help with the credibility with the — with the country. [my emphasis]

Here’s the transcript at I Con the Record from the previous hearing, where Inglis in fact testified that Section 215 was only critical in the Basaaly Moalin case (which was not a plot against the US but rather funding to defeat a US backed invasion of Somalia).

MR. INGLIS: There is an example amongst those 13 that comes close to a but-for example and that’s the case of Basaaly Moalin.

That is, in fact, Inglis said it had been critical in just one “plot.”

After he did, FBI Deputy Director Sean Joyce piped in to note the phone dragnet also “played a role” by identifying a new phone number of a suspect we already knew about in the Najibullah Zazi case.

MR. JOYCE: I just want to relate to the homeland plots. So in Najibullah Zazi and the plot to bomb the New York subway system, Business Record 215 played a role; it identified specifically a number we did not previously know of a —

SEN. LEAHY: It was a — it was a critical role?

MR. JOYCE: What I’m saying — what it plays a —

SEN. LEAHY: (And was there ?) some undercover work that was — took place in there?

MR. JOYCE: Yes, there was some undercover work.

SEN. LEAHY: Yeah —

MR. JOYCE: What I’m saying is each tool plays a different role, Mr. Chairman. I’m not saying that it is the most important tool —

SEN. LEAHY: Wasn’t the FBI — wasn’t the FBI already aware of the individual in contact with Zazi?

MR. JOYCE: Yes, we were, but we were not aware of that specific telephone number, which NSA provided us. [my emphasis]

So, when pressed, Joyce admitted that Section 215 wasn’t critical to finding Adis Medunjanin, one of Zazi’s conspirators. (And if you read Matt Apuzzo and Adam Goldman’s Enemies Within, you see just how minor a role it played.)

That’s important, because the Administration’s use of Section 215 in the Zazi case was crucially important to the defeat of two efforts to rein in the dragnet in 2009.

As I noted at the time, Pat Leahy tried to require a Section 215 order have some tie to a suspect. Dianne Feinstein got Leahy to agree to a substitute, to which Dick Durbin tried to add specificity back in with an amendment. DiFi defeated it by pointing to the Zazi investigation.

My concern was that nothing we do here interfere adversely with an investigation that’s going ongoing. I happen to believe that the biggest investigation we’ve had since 9/11 is currently ongoing and do not want to do anything to disturb it. Second, I believe that finally, the intelligence in the transformation or transfiguration of the FBI is now taking hold and that we are developing an intelligence mechanism within the country that is now able to ferret out some of these proposed attacks before they might happen. And I think the arrest of Mr. Zazi is demonstration of that. It is not ended and the investigation continues on.

Later in the hearing, she went further, claiming that adding specificity would “end several classified and critical investigations.”

Secondly, the FBI does not support this amendment. And thirdly, in putting forward this higher standard, it would end several classified and critical investigations.

In context, it seemed that DiFi implied imposing specificity would end the still-ongoing Zazi investigation, though Sheldon Whitehouse would later refer to “ongoing programs,” suggesting perhaps she was thinking of the phone and the Internet dragnet (though the latter was authorized by Pen Register, not Section 215, at least as far as we know).

In any case, though, DiFi clearly and repeatedly left the impression that if Section 215 were made more specific, it would end the Zazi investigation, and might have prevented the FBI from thwarting that plot.

Now we find out that, when pressed, FBI admits Section 215 helped but really wasn’t critical at all to the investigation.

It’s possible FBI’s use of Zazi to sustain the dragnet is not as cynical as it seems. It’s possible that they were still investigating other people who had been in phone contact with Zazi, and every single one of them turned out to be innocent. Keep in mind, if Zazi had 40 phone contacts, and they had 30 separate unique contacts, and those contacts had 30 unique contacts, it would mean the FBI proceeded to investigate 36,000 people to make sure they weren’t terrorists — and that’s assuming they didn’t do the same chaining for Zazi’s family members, some of whom were better integrated into their community.

It’s possible FBI also used it (as I first suspected), to find out who had bought beauty supplies that happened to be precursors to TATP, so they could (at a minimum) cross reference it with Zazi’s contact list to find suspects to submit on his detention motion. Apuzzo and Goldman suggest the FBI didn’t do so, but their sources for a very FBI-friendly book might not now want to admit they investigated a bunch of people for buying hydrogen peroxide.

And FBI might be forgiven for the propaganda they were feeding DiFi in 2009 because they did not yet know those 36,000 people and those hydrogen peroxide buyers were innocent. But it would still mean we didn’t make a common sense change to this law because we were busy ruling out 36,000 apparently completely innocent people as terrorists.

But in recent days (including yesterday), Intelligence Community people now call the use of the dragnet to rule out people as terror associates the “peace of mind” metric.

DIR. CLAPPER: (Off mic) — let me comment first on the value of Section 215, where I think, unfortunately — and we may be part — guilty of this — it’s — the only metric used is plots foiled. I think there’s another metric here that’s very important use for Section 215. I would call it the peace of mind metric. In the case of the Boston Marathon bomber, where using these tools, we’re able to check out whether there was or was not a subsequent plot involving New York City. In the case of the AQAP threat this summer that occasioned the closure of several diplomatic facilities in the Mideast, there were a number of selectors that emerged from our collectors overseas that pointed to the United States. Each one of them were checked out and were found not to be relevant to a domestic aspect of a terrorist plot.

It has taken 4 years and 3 debates about Section 215 for the IC to finally admit Section 215 has not actually proven crucial for thwarting any single plot (except one guy sending money to defeat a US backed invasion). (And note, Sean Joyce, who has been one of the people who has briefed Congress along the way, may have a real incentive to claim he didn’t oversell the value of it in the past.)

Rather, it serves to allow the IC to assure themselves that tens of thousands of people are innocent after every plot and near-plot (given how much more wired in the Tsarnaevs were, that number might now be higher).

Now perhaps that really is a worthy reason to develop a phone-based relationship map of all the people in America, so they can be swept up as one of those 36,000 the next time there’s a plot. But that’s what we’re really talking about here — and were talking about, back when those read into this program tried to rein it in.

That’s not what DiFi implied when people first tried to fix it. And we’re only now learning the truth.

The Washington Post reports this morning that the Syrian government has been “businesslike and efficient” in its dealings with the OPCW and that things are on track for representatives from the OPCW to be inside Syria tomorrow to start working on the details of destroying Syria’s chemical weapon stockpile. Considering how rapidly the UN Security Council resolution passed unanimously on Friday evening was put together, though, it remains a mystery to me why the UN is waiting until mid-November for a peace conference to begin in Geneva.

The good news from OPCW:

Inspectors from the Hague-based Organization for the Prohibition of Chemical Weapons said they would arrive in Damascus midday Tuesday and spend a week in the city before starting visits to chemical weapons facilities declared by the Syrian government. The OPCW officials said the details of the Syrian declaration appeared to line up with external intelligence assessments of what the government possesses, giving them optimism that the regime was being cooperative.

“It’s been good business so far,” said an OPCW official, speaking at a briefing for reporters under the condition of anonymity. “So far, our interactions with the Syrians have been very businesslike and efficient.”

The difficulties that the inspectors will face underline why I have been stating all along that a ceasefire is an important component of destroying the chemical weapons:

Another OPCW official said inspection teams may not even be able to reach every declared chemical weapons site because of security concerns. The inspectors will be working with unarmed U.N. security guards and under the protection of Syrian government forces, but significant portions of Syrian territory are not under the full control of Assad’s military.

“It may be that we are not in a position to go to some of these locations,” the official said. “We are not a military unit.”

It is difficult to tell from the phrasing here whether some of the sites where the inspection teams will work are under rebel control or whether the teams merely need to pass through rebel-held territory in order to reach sites still under government control. In either case, a ceasefire would make the work much more likely to be successful.

Even though it appears that the teams intend to destroy the equipment that Syria could use to do the final mixing of the two chemical precursors composing the bulk of Syria’s chemical weapons by November 1, much work will still be needed to destroy the chemicals themselves. Waiting until mid-November to start the peace conference seems a poor choice to me:

The United Nations Secretary-General Ban Ki-moon on Saturday urged the National Coalition for the Syrian opposition forces to reach out to other groups and forge an agreement on a united delegation for an upcoming peace conference in Geneva. Reports suggest that the peace conference will be held in mid-November. Hectic parleys are on in New York, to firm up the exact date, which is expected to be finalised this week. Meanwhile, it was known that Iran may also participate in the peace talks.

In his meeting with Ahmad al-Jarba, president of the National Coalition for Syrian Revolutionary and Opposition Forces, in New York on Saturday, the Secretary-General welcomed the opposition’s commitment to send a delegation to the upcoming peace conference.

Ban “urged the National Coalition to reach out to other opposition groups and agree on a representative and united delegation,” states the readout issued by the Secretary-General’s spokesperson.

If we break through all the noise about chemical weapons, the humanitarian crisis of the Syrian war is huge:

Since March 2011, the Syrian civil war has claimed over 100,000 lives. The civil war has displaced over 4 million people within Syria and sent more that 2 million people fleeing for safety to neighbouring countries.

Let’s hope that this peace conference is more successful than the last one:

A first Syria peace conference was held in Geneva in June 2012. The 2012 conference agreed that there should be a transitional government in Syria with full executive powers and called for a new conference to decide how to implement the accord.

The fact that Iran, a strong ally of the Assad government, is likely to take in part in this conference seems to bode well for it to make real progress on bringing hostilities to an end. I just wish the timing were more in concert with the planned actions on rounding up and disposing of the chemical weapon precursors.

Apparently with the blessing of Supreme Leader Ayatollah Ali Khamenei, Iranian President Hassan Rouhani is taking huge and significant steps toward a thawing of relations with the West while also moving to lessen the grip of hard line positions within Iran.

Rouhani and US President Barack Obama have been exchanging letters that seem to have paved the way for further discussions and improved negotiations on the issue of Iranian nuclear technology. Iran released a number of political prisoners on Wednesday. Iran also appears headed toward another round of P5+1 talks, with the date to be arranged while diplomats are in New York next week for Rouhani to address the UN. The diplomatic push reached a high point on Wednesday when Rouhani sat down in Tehran for an interview with NBC’s Ann Curry:

[youtuber youtube=’http://www.youtube.com/watch?v=DefgX2xPJR4′]

The entire interview in this clip is compelling, but I want to emphasize one bit that occurs near the end once the discussion moved to Syria. From the NBC blog post where the interview video is posted:

Asked whether he thought Obama looked weak when he backed off the air-strike threat, Rouhani replied, “We consider war a weakness.  Any government or administration that decides to wage a war, we consider a weakness.  And any government that decides on peace, we look on it with respect to peace.”

What a different viewpoint than we see inside the DC beltway. Throughout the entire Syria episode, we have been bombarded with the refrain that Obama simply had to attack Syria because if he didn’t, he would lose his credibility and look weak. Rouhani, on the other hand, states that it is resorting to war that is the real weakness.

If going to war is the real weakness, then it appears that Lindsey Graham may want to be the weakest politician in the US:

Sen. Lindsey Graham (R-S.C.) said Tuesday he’s working on legislation that would give the president the green light to attack Iran if negotiations over the country’s alleged nuclear weapons program stall.

Graham is clearly approaching the issue from a very different side than Rouhani.

Who’s weak now, Lindsey?

Rouhani and Khamenei are taking steps to tell the “weaker” elements on their side to STFU:

On Monday, the new president said the Revolutionary Guards — who report to Khamenei and have been accused of backing hard-liners — should stay out of politics. The next day, Khamenei was quoted on state TV as saying, “It is not necessary for the Guards to have activities in the political field.”

If only Lindsey would show a little bit of strength and bite his tongue while diplomacy has its best chance in years.

Given that I’m very interested in the carrots and sticks the government uses to get tech companies to help spy on us, I find it rather interesting that from 2007 until August 31, DOD was allowing Google to pay for jet fuel at Moffett Field near Google’s HQ in Mountain View at DOD’s substantially discounted rate.

Granted, this arose because Google provided a light airplane to perform scientific flights for Ames Research Center.

NASA officials have pointed to a related agreement by the Google executives to perform scientific flights and other NASA-related transport. That mostly has involved flights by an Alpha jet, a small trainer bought by the Google executives and used by NASA to measure atmospheric greenhouse gases and ozone.

[snip]

[T]he contract between H211 and the Pentagon stated that the fuel was supposed to be used only “for performance of a U.S. government contract, charter or other approved use,” and said violations could trigger civil or criminal penalties. There is no indication of any such investigation.

Flight records from the Federal Aviation Administration suggest that the vast bulk of the flights by the Google executives’ fleet have been for non-NASA purposes.

The main jets in the fleet—a Boeing 767, Boeing 757 and four Gulfstream V’s—have departed from Moffett a total of 710 times since 2007, FAA records show. The most frequent destinations were Los Angeles and New York, but the planes also flew 20 times to the Caribbean island of Tortola; 17 to Hawaii; 16 to Nantucket, Mass.; and 15 to Tahiti.

This agreement went into place before Google joined PRISM, for example (though I’m sure Google was already helping NSA on its storage challenges before that). Though I really look forward to Google defending these fuel purchases because so much of what they do is “for performance of a U.S. government contract.”

This is peanuts to a company as rich as Google; access to the airport is probably worth more to Google execs than the cheap gas.

Still, it’s a perk. The kind of perk that might explain why Eric Schmidt believes all this spying is just the nature of society. (h/t Kevin Gosztola)

There’s been spying for years, there’s been surveillance for years, and so forth, I’m not going to pass judgment on that, it’s the nature of our society.

Spying is the nature of society in the same way as special perks for those who help in it, after all.

Please donate to the Emptywheel fundraiser. 

As you’ve no doubt already read, Vladimir Putin published an op-ed in the NYT last night, one in which he lectured Obama (in Christian terms) that no one should think of theirs as an exceptional country.

My working and personal relationship with President Obama is marked by growing trust. I appreciate this. I carefully studied his address to the nation on Tuesday. And I would rather disagree with a case he made on American exceptionalism, stating that the United States’ policy is “what makes America different. It’s what makes us exceptional.” It is extremely dangerous to encourage people to see themselves as exceptional, whatever the motivation. There are big countries and small countries, rich and poor, those with long democratic traditions and those still finding their way to democracy. Their policies differ, too. We are all different, but when we ask for the Lord’s blessings, we must not forget that God created us equal.

And while NYT identified Putin’s potential conflict in giving such a lecture …

Vladimir V. Putin is the president of Russia.

… It did not reveal that the thuggish dictator has a PhD on the importance of energy in Russia’s future.

I mostly raise that because a key figure in John Kerry’s case for war, Elizabeth O’Bagy, got fired yesterday for lying about having a PhD. Kerry had used her work to make claims that the Syrian rebels are a whole lot more secular and peace-loving than, according to House Homeland Security Chair Mike McCaul, our own intelligence community believes them to be.

Meanwhile, amid complaints from at least one reader about the op-ed, NYT’s public editor provided an explanation (without, however, disclosing that Ketchum is the PR firm that contacted the NYT).

The Times editorial department was approached Wednesday by an American public relations firm that represents Mr. Putin, offering the piece. At the same time, Mr. Rosenthal said, Mr. Putin’s spokesman had called The Times’s Moscow bureau with the same purpose in mind.

Mr. Rosenthal agreed to review the article and quickly decided to publish it. It was posted on the Times Web site by Wednesday evening.

“I thought it was well-written, well-argued,” he said. “I don’t agree with many of the points in it, but that is irrelevant.”

[snip]

Rosenthal said there was no way of knowing whether Mr. Putin himself wrote the article – “with a public official you can never know,” because they tend to have staffers who write their speeches and other communications. But, he said, it needed virtually no editing and went through almost no changes. “It was an amazingly good translation,” he said.

Guess what?!?!

Our foreign policy caters to interest groups of all sorts. No matter the pretty stories we cloak it in, it is ultimately about serving someone’s interest (and that interest is increasingly second-hand for the average citizen of the United States). And while Putin didn’t admit to his PhD, he was clearly presented as the leader of a foreign nation.

Any arguments about foreign policy are going to be driven by the public influence industry, whether it’s a DC think tank or a giant PR firm. (Which is why you should support an independent site like Emptywheel!) Like it or not, Putin’s case on most issues save who launched the CW attack on August 21 holds together better than the US case thus far (Max Fisher fact checks it here; while I absolutely agree with his claims about Putin’s hypocrisy, I do question his trust in US assurances).

For that reason, among others, the thuggish Doctor is correct. The US would be well-served to stop cloaking its interest-based policy choices in the tawdry exceptionalist claims that worked — more for media reasons than fact — for the second half of the 20th Century (during precisely the period when Putin’s country improbably claimed to be the champion of oppressed workers). We have spent the last 12 years making it clear we don’t abide by those exceptional principles. And frankly, our arguments for or against war would be far stronger if we didn’t try to use that crutch. (The people who seem to object most strenuously to Putin’s op-ed seem to be those who cling to this myth most desperately.)

After 12 years, in any case, Americans have become well aware such myths don’t deliver them personal benefits.

We are, supposedly, a democracy. And if the Administration wants to bring us to war (but not in the “classic sense,” Kerry insists), it would do well to make a stronger argument than the thuggish Doctor.

Disclosure: Marcy Wheeler has a PhD that makes her an expert in, among other things, how the entrancing avenger Count of Monte Cristo helped pave the way for authoritarian Louis Napoleon.

This is fairly extraordinary. BuzzFeed reports that in an effort to alleviate some of the pressure from the UK it is bringing in the NYT — but just one reporter from the NYT — to report on the Snowden stories.

“In a climate of intense pressure from the UK government, The Guardian decided to bring in a US partner to work on the GCHQ documents provided by Edward Snowden,” Guardian spokeswoman Jennifer Lindenauer said in an email. “We are continuing to work in partnership with the NYT and others to report these stories.”

That reporter is not James Risen — who of course broke the original NSA story with Eric Lichtblau. It is not Charlie Savage — who had an important story based on the Snowden leaks already.

It is Scott Shane.

The Times’s Charlie Savage and other reporters have chased the NSA story aggressively, despite Snowden’s choice to go to fillmmaker Laura Poitras, theGuardian’s Glenn Greenwald, and Barton Gellman, who has written about the documents for the Washington Post. Snowden said he did not go to the Timesbecause the paper bowed to Bush Administration demands to delay a story on warrantless wiretapping in the interest of national security; he was afraid, he said, the paper would do the same with his revelations.

Now, Times reporter Scott Shane is at work on a series of stories expected to be published next month jointly with the Guardian, a source familiar with the plans said. The source said the internal arrangement has also been the cause of some tension in the newsroom, as other national security reporters working on the NSA story — Savage and James Risen, among others — are not centrally involved in stories based on the Guardian’s documents.

Scott Shane has an increasingly consistent ability to tell grand tales that serve the interests of The Powers that Be. And somehow his stories about extremely sensitive subjects like drones don’t get chased for leaks.

Was the alleviation of pressure tied to Scott Shane in particular, a journalist who hasn’t followed this story as closely as some of his colleagues?

[Note Update below]

In a rather remarkable decision just handed down by Judge Shira Scheindlin in the Southern District of New York (SDNY), has found New York City’s insidious stop and frisk policy violative of citizen’s basic Constitutional rights. From the NYT:

In a decision issued on Monday, the judge, Shira A. Scheindlin, ruled that police officers have for years been systematically stopping innocent people in the street without any objective reason to suspect them of wrongdoing. Officers often frisked these people, usually young minority men, for weapons or searched their pockets for contraband, like drugs, before letting them go, according to the 195-page decision.

These stop-and-frisk episodes, which soared in number over the last decade as crime continued to decline, demonstrated a widespread disregard for the Fourth Amendment, which protects against unreasonable searches and seizures by the government, according to the ruling. It also found violations with the 14th Amendment.

To fix the constitutional violations, Judge Scheindlin of Federal District Court in Manhattan said she intended to designate an outside lawyer, Peter L. Zimroth, to monitor the Police Department’s compliance with the Constitution.

The full decision and order is here.

This is a very strong decision, and it is based on trial evidence and specific findings of fact and conclusions of law that should give it some extra protection, compared to a straight legal decision alone, should the city appeal to the 2nd Circuit.

The court found that the practice violated both the 4th and 14th Amendments and denied equal protection. In so doing, the court basically confirmed that New York City had a standing policy that constituted blatant racial profiling. The court noted, in reference to the City’s belligerent defense of such an unconstitutional policy:

City acted w/deliberate indifference toward NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks.

The “Applicable Law” portion contained in pages 15-30 (by the court’s page numbering) is a hornbook primer on Terry stops and reasonable suspicion.

A few words from the court will close out this post:

New Yorkers are rightly proud of their city and seek to make it as safe as the largest city in America can be. New Yorkers also treasure their liberty. Countless individuals have come to New York in pursuit of that liberty. The goals of liberty and safety may be in tension, but they can coexist — indeed the Constitution mandates it.

….

In conclusion, I find that the City is liable for violating plaintiffs’ Fourth and Fourteenth Amendment rights. The City acted with deliberate indifference toward the NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks. Even if the City had not been deliberately indifferent, the NYPD’s unconstitutional practices were sufficiently widespread as to have the force of law. In addition, the City adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause. Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites. For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband. I also conclude that the City’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting “the right people” is racially discriminatory and therefore violates the United States Constitution. One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason — in the hope that this fear will deter them from carrying guns in the streets. The goal of deterring crime is laudable, but this method of doing so is unconstitutional.

Bravo Judge Scheindlin, and thank you.

More like this please; the federal courts of America owe the citizens the duty of reeling in 4th Amendment abuses by governmental entities. This is a start, but the Obama Administration’s surveillance programs demonstrate there is a very long way to go.

UPDATE: I neglected to include the separate “Remedies Opinion” issued by Judge Scheindlin, here is the link for that.

A few words from the court about the intransigence of NYC and NYPD:

I have always recognized the need for caution in ordering remedies that affect the internal operations of the NYPD, the nation’s largest municipal police force and an organization with over 35,000 members. I would have preferred that the City cooperate in a joint undertaking to develop some of the remedies ordered in this Opinion. Instead, the City declined to participate, and argued that “the NYPD systems already in place” — perhaps with unspecified “minor adjustments” — would suffice to address any constitutional wrongs that might be found. I note that the City’s refusal to engage in a joint attempt to craft remedies contrasts with the many municipalities that have reached settlement agreements or consent decrees when confronted with evidence of police misconduct. (footnotes omitted)

The defendant NYC and NYPD are very much not going to like Judge Scheindlin’s remedies and, thus, likely will appeal on that basis. As I said above, the decision itself looks pretty solid for appeal, the remedies may be another matter. Professor Orin Kerr thinks the court may have gone too far in broad scope based on this paper he previously authored on 4th Amendment remedies in 2009.

I am a big fan of Professor Kerr’s 4th Amendment analysis, but we occasionally differ. And we differ here. My review of Judge Scheindlin’s remedies and order reflects a set of cures targeted and appropriate in purpose, and broad only where necessary to effect said purpose (with possible exception of order to wear cameras). We shall see how they hold up on appeal, but the remedies look proper and necessary to me.