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Three Things: Numbers, Hearings and Racist Code

There’s always more than three things to address but here’s three we should look at more closely.

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This is what we’re up against.

823 Americans have died of COVID-19 since yesterday. In contrast, South Korea, which learned of its first case of COVID-19 the same day the U.S. learned of its own, has only lost 281 of its citizens.

We lost not one American to an attempted shoe bombing in 2001 and yet an immediate program was developed and implemented to detect future shoe bombing attempts, requiring air travelers to take off their damned shoes and go through multiple screenings.

But Trump can’t be arsed to shut up and let the professionals handle stopping an ongoing daily stream of deaths from COVID-19.

This administration is killing Americans. Trump’s not even hiding the fact he’s willing to ignore deaths to manipulate numbers by insisting testing for the virus should be suppressed. He has the temerity to brag about his performance which has resulted in the unnecessary deaths of more than 120,000 Americans.

Yesterday the House Committee on Energy and Commerce held a hearing on oversight of the Trump Administration’s response to the COVID-19 pandemic.

Called to testify before the committee:

Robert R. Redfield, M.D., Director, Centers for Disease Control and Prevention (statement at 27:39)

Anthony S. Fauci, M.D., Director, National Institute for Allergy and Infectious Diseases, National Institutes o Health (at 33:40)

Admiral Brett P. Giroir, M.D., Assistant Secretary for Health, U.S. Department of Health and Human Services (at 38:25)

Stephen M. Hahn, M.D., Commissioner, U.S. Food and Drug Administration (at 43:54)

 

Some of the GOP’s efforts are useless, wasteful filibustering — like Rep. Bob Latta’s (OH-5) question about how the human body makes antibodies. This is something he should have been briefed on let alone read on his own long before this hearing. He should have read this basic biology question MONTHS AGO when the pandemic began. So was his question about how the vaccine would be distributed WHEN WE’RE 6-18 MONTHS OUT AT BEST from having a viable, effective, safe vaccine through Phase III trials.

Rep. Diana DeGette asked Fauci about vaccine development (at about 1:28:00); I think he was extremely optimistic saying he thought there would be one by early 2021. But the question wasn’t as specific as it should have been; there are clinical trials in progress for a couple of candidates, but it’s not clear what phase they are in.

Reported last week by StatNews:

There are more than 100 projects around the world centered on the development of a vaccine for the coronavirus. As of May 11, eight candidate vaccines were being tested in clinical trials in people.

An official at the National Institutes of Health said in mid-May that large-scale testing could begin in July with a vaccine potentially available by January.

Other experts say the more likely timeline is summer or fall of 2021.

The other factor beyond the capabilities of the vaccines and developers which will predict the time to public distribution is Congress and the White House.

If we still have that malicious narcissist in the Oval Office without a veto-proof Democratic majority in the Senate, nationwide roll-out of a vaccine by the U.S. government may not happen even if an efficacious vaccine is found.

Meanwhile, COVID-19 don’t care…

Just like Trump.

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The Mary Sue presented a nice overview of what happened in Tulsa this past weekend.

In short, Team Trump fucked themselves hard.

What happened this weekend was supposed to be a point where Trump turned the narrative back in his favor and moved the attention away from the activists and change that have controlled the news cycle for months. But what really happened was instead of taking the attention away from the K-Pop teens for his failures, those things all combined to add one more line to an endless line of failures that we can only hope will keep going until November.

It wasn’t just a loss of narrative and momentum but the complete trashing of campaign data harvesting.

We don’t know exactly what the data accumulated by Trump’s re-election campaign looks like after receiving ~800,000 registrations for the Tulsa rally. Some were valid, some were valid but no-shows, some were legitimate addresses of people who had zero intention of attending — likely sent by TikTok accounts.

And a mess of them must have been K-pop fans who are still feeling their oats after they DDoS’d police video monitoring during anti-racism protests as well as spamming right-wing hashtags.

Parscale’s operation better have had a good backup before the Tulsa registrations began, though I have suspicions somebody’s ass wasn’t well covered.

I mean, who is foolish enough to brag about more than 1,000,000 registrations like that, without a hint of skepticism about the data’s integrity?

Somebody prone to hubris, that’s who.

And somebody else isn’t going to pay Team Trump for data gleaned through Tulsa.

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The ACLU filed suit this morning against the Detroit Police Department for its wrongful arrest of Robert Williams based on racist facial recognition technology.

The Washington Post published an op-ed by Williams explaining what happened to him and why facial recognition software should be banned.

The next morning, two officers asked if I’d ever been to a Shinola watch store in Detroit. I said once, many years ago. They showed me a blurry surveillance camera photo of a black man and asked if it was me. I chuckled a bit. “No, that is not me.” He showed me another photo and said, “So I guess this isn’t you either?” I picked up the piece of paper, put it next to my face and said, “I hope you guys don’t think that all black men look alike.”

The cops looked at each other. I heard one say that “the computer must have gotten it wrong.” I asked if I was free to go now, and they said no. I was released from detention later that evening, after nearly 30 hours in holding. …

It’s not just the software at fault, though. DPD made absolutely no attempt to confirm Williams’ identity against images they had before they took him into custody, processed him, and detained him overnight in holding.

They literally can’t be bothered or they are racist as hell in a minority majority city.

The ACLU is calling for a ban on facial recognition in Detroit, Williams being a perfect example of how flawed and racist the technology is as well as an assault on innocent citizens’ privacy.

 

Boston’s city council banned facial recognition technology this morning, setting an example for Detroit.

What’s your municipality doing about facial recognition technology?

Are you blowing off this issue because you’re white and you couldn’t possibly be misidentified?

Sure.

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The House Judiciary Committee hearing on politicization at the Justice Department is still under way as hit Publish. If you haven’t been following along and want to catch up, here are four Twitter threads covering the hearing.

Marcy https://twitter.com/emptywheel/status/1275821690170335237

Jennifer Taub https://twitter.com/jentaub/status/1275825424405323776

Courthouse News https://twitter.com/ByTimRyan/status/1275821746923417603

CNN https://twitter.com/jeremyherb/status/1275820657289428994

This is an open thread.

Long Overdue Policies that Look Obvious in the Age of Pandemic

I’m not usually a fan of George Packer. But I keep coming back to this column, We Are Living in a Failed State. The coronavirus didn’t break America. It revealed what was already broken, which is something I might have written. It argued that this pandemic, to which the US responded like a corrupt poor country, was actually the third crisis of this century, and our responses to the previous two — 9/11 and the Iraq War, and the Wall Street crisis — simply brought this country to the place where Trump could loot it.

Like a wanton boy throwing matches in a parched field, Trump began to immolate what was left of national civic life. He never even pretended to be president of the whole country, but pitted us against one another along lines of race, sex, religion, citizenship, education, region, and—every day of his presidency—political party. His main tool of governance was to lie. A third of the country locked itself in a hall of mirrors that it believed to be reality; a third drove itself mad with the effort to hold on to the idea of knowable truth; and a third gave up even trying.

Trump acquired a federal government crippled by years of right-wing ideological assault, politicization by both parties, and steady defunding. He set about finishing off the job and destroying the professional civil service. He drove out some of the most talented and experienced career officials, left essential positions unfilled, and installed loyalists as commissars over the cowed survivors, with one purpose: to serve his own interests. His major legislative accomplishment, one of the largest tax cuts in history, sent hundreds of billions of dollars to corporations and the rich. The beneficiaries flocked to patronize his resorts and line his reelection pockets. If lying was his means for using power, corruption was his end.

Packer ends with a call for renewed solidarity.

But he might as well also call for a fix to all the failures of the past twenty years. Right now, mind you, Trump is failing, miserably, in part because he believes maximizing the opportunities for looting by his friends is all the policy he needs.

But the sheer scale of the crisis makes policies that long made sense for the United States more urgent and far easier to justify. I plan to keep a running list of those policies.

Medicare for All

No one has figured out how all the people put out of work by the shut-downs will pay for COVID-related health care. Trump has persisted in a plan to kill Obamacare, and some badly affected states never even expanded Medicaid.

Early reports suggested that Trump’s administration has claimed it is willing to pay hospital bill, so long as they pay those bills directly (thereby avoiding establishing a policy, I guess). But with so many people out of work and with hospitals reeling from the shut-down, the far better solution is to make Medicare available to all.

Universal Basic Income

The US government has been backing credit for big industry and tried, but failed, to provide free money for small businesses to keep their employees on staff. Instead, 26 million Americans have applied for unemployment, a sixth of all workers (and a third of all workers in MI, KY, and RI). Meanwhile, the Administration botched even a one-time $1,200 payment.

The government could better ensure that markets don’t crash entirely–and keep states from buckling as they try to serve all these unemployed people–if they simply gave a UBI to all people, as Spain has decided it will do. By keeping it, the US might be able to address the underlying inequality problems that have led to such a disproportionate impact of COVID on communities of color.

Decarceration

Closed spaces, generally, amount for a huge percentage of COVID cases and (in the case of nursing homes) deaths. ACLU just rolled out a paper that argues the models for COVID (which were originally based off other societies’ social patterns, including their prison system) underestimate the total number of deaths because they don’t account for the spread in our prisons.

COVID will remain lethal for long enough that states and the federal government will need to achieve some level of decarceration to prevent the prisons from becoming a source of spread to the wider community (as they have become in the localities with harder hit prisons).

In this case, even before COVID hit, there was bipartisan support to wean ourselves from overincarceration. Prisons will become less lucrative in conservative communities, especially as some states begin to end prison gerrymandering (which gives rural communities representation for prisoners who can’t vote, just like slavery did).

So now is the time to end incarceration for minor crimes, and improve the humanity of incarceration for those who need to be jailed.

Deindustrialization of the Food System

We’ll be lucky if we avoid famine conditions. That’s partly because our food system has the same institutional/retail split our toilet paper supply chain does, meaning the market for half of the food out there disappeared when restaurants and other institutional buyers shut down. That’s partly because bottlenecks in our food supply chain — most notably, thus far, meatpacking plants, but there will be others — have further undermined the market for our plentiful food production. And that’s partly because Trump’s farmer support, thus far, has emphasized direct payments that are effectively a continuation of his earlier bribery of farmers whose markets his trade war screwed, rather than purchasing up surpluses to provide to food banks.

Trump hasn’t shown an ability to get any other needed supplies where they’re needed; it’s unlikely he’ll do better with food.

Meanwhile, food supplies that bypass these commodity markets remain. We need to make this food supply chain more resilient and one way of doing so is to bypass the industrial bottlenecks.

Broadband as a Utility

When schools shut down, it suddenly became acutely visible how many Americans — both rural and urban — don’t have broadband. While some areas have gerry-rigged solutions (like driving wifi-enabled busses to poorer neighborhoods) to get some kids online and learning, that’s not possible everywhere. And even for adults, it takes broadband access to be able to social distance.

Trump is already talking about using infrastructure investments to get America working again. Extending basic broadband as a utility should be part of that.

Update: Arne Duncan describes what needs to happen for existing efforts to expand broadband access to be really effective.

Industrial Policy

Two months after we first identified shortages in necessary medical supply, we’ve barely managed to switch production to those necessary objects, even as entire factories were otherwise shut down. We’ve got shortages of not just testing kits, but the underlying supplies. We’ve got drug shortages too (and had them, even before the President started pitching miracle cures).

It’s long past time to admit that we do have an industrial policy — but right now, it’s focused on building the troubled F-35, not ensuring that the United States has the ability to build the things we need domestically, even if we interact openly with the rest of the world. This story uses the failed lithium battery investments Obama made, largely in Michigan, to talk about how we came to be unable to supply our own medical equipment.

We have an industrial policy. We just need to be willing to match that policy to our society’s real needs, not exporting warmongering.

Rosemary Collyer Moves to Lock Down the FISA Court

These two filings at the FISA Court — letters from Rosemary Collyer to Republican members of Congress trying to liberate documents related to Carter Page’s FISA application — have generated a good deal of attention. But they’re not all that exciting. All they consist of is Collyer (the worst presiding judge ever, if not the worst FISC judge outright) telling Bob Goodlatte and Devin Nunes that DOJ and FBI have most of the documents they want and she’s not going to budge until she learns what they’ll do.

Thank you for the courtesy of copying me on your February 1, 2018, letter to the Department of Justice and the FBI in which you made requests for information similar to those in your letter to us. Those agencies possess most, if not all, of the responsive materials the Court might possess, and we have previously made clear to the Department, both formally and informally, that we do not object to any decision by the Executive Branch to release any such FISA materials to Congress. I expect that their handling of your requests will inform the Court as to how the Executive Branch perceives its interests and will assist us in our consideration of the full range of issues; therefore we have asked the Department of Justice to keep us informed regarding its response to your February 1 letter.

It’s a punt. And not a very bold one.

The context, though, is interesting. The move comes after three related events:

  • After Collyer blew off a previous FISC precedent in ruling against an ACLU effort to liberate some FISA documents, the FISC apparently revolted, leading the entire court to consider the issue which was narrowly decided for ACLU. FISC then punted that decision up to the FISCR. FISCR named Laura Donahue as amicus on that challenge (both giving the proceeding a patina of process but also ensuring she doesn’t give up on the amicus process like John Cline did in December). I hope I’m wrong, but I expect FISCR to rule against ACLU, thereby tamping down any First Amendment right to access decisions of the court.
  • NYT’s Adam Goldman and Charlie Savage asked for the Carter Page application. This is a serious legal effort, with attentive follow-up. If ACLU loses at FISCR, however, it’ll make it very easy for FISC to deny their request.
  • Lawfare’s Susan Hennessey and Ben Wittes asked for the FISC to release a statement about whether DOJ conducted any misconduct in the Page application. This is less serious than the NYT effort, both for the utter lack of self-awareness of two people who just four months ago were applauding FISC law-breaking, deeming themselves “true friends” of the court, claiming that FISC telling us it is cool with DOJ’s application will restore faith in the process. As if that would be sufficient. Plus, the motion isn’t necessary: Reggie Walton has made public statements on his own. If Collyer did so in this case, it would be more credible if she did so on her own than if she did so because a former NSA lawyer and a surveillance booster invited her too.

I don’t support the full Page application coming out in this case. But a sharply redacted version would do more to silence the skeptics than anything else.

But by all appearances, Collyer wants the Executive to tell her what to do here, ceding the “inherent authority” Hennessey and Wittes proclaim in their motion.

Collyer’s continued subservience to the Executive is, in my opinion, a far graver challenge to FISA Court legitimacy than the Carter Page approvals are. Particularly at this moment, I wish Judge Collyer would act like the independent court most other FISC judges treat it as.

Leahy-Lee versus USA Lip Service: An Improvement, But Still a Domestic-as-Foreign Surveillance Bill

Patrick Leahy and Mike Lee have introduced their version of Section 702 reauthorization, which like HJC they also call USA Liberty and like that bill doesn’t improve liberty. For convenience and because I refuse to use Orwellian terms to whitewash surveillance, I’ll refer to them going forward as Leahy-Lee and USA Lip Service, respectively.

Leahy-Lee is an improvement on USA Lip Service.

Leahy-Lee’s warrant requirement is real

That’s true, first of all, because the warrant requirement to access content via back door searches is real. The bill requires a probable cause warrant for both foreign intelligence and criminal purposes. And because it is a meaningful warrant requirement, the count of how many warrants are obtained will also be real.

The bill permits searches on (and with AG-plus-designates approval, access to) metadata-plus. Like USA Lip Service, the bill doesn’t define the expanded definition of metadata, though it appears to permit the same location-based access that USA Lip Service does.

The bill is silent on whether metadata from searches can be the sole evidence in the warrant application to FISC, which may water down the warrant requirement dramatically.

Leahy-Lee doesn’t sunset the prohibition on about collection

Also unlike USA Lip Service, Leahy-Lee does not sunset the prohibition on about collection.

There are two areas where USA Lip Service is different in ways that may make it better.

USA Lip Service may not track White House unmasking

First, in a report on the number of unmaskings, USA Lip Service requires reports on the number of unmaskings by any “element of the Federal Government.”

(3) The number of—

(A) United States persons whose information is unmasked pursuant to the procedures adopted under subsection (e)(4) of such section;

(B) requests made by an element of the Federal Government, listed by each such element, to unmask information pursuant to such subsection; and

(C) requests that resulted in the dissemination of names, titles, or other identifiers potentially associated with individuals pursuant to such subsection, including the element of the intelligence community and position of the individual making the request.

Leahy-Lee only requires reporting under clause B from the IC.

(B) requests made by an element of the intelligence community, listed by each such element, to unmask information pursuant to such subsection;

That may have the effect of missing any unmasking done at the White House. I don’t much care about this stuff, but for Republicans that do, it’s an interesting omission in the Senate bill.

Leahy-Lee doesn’t limit use of information to 702 certificates

Perhaps most interesting, Leahy-Lee doesn’t have language that was added in the manager’s amendment of USA Lip Service, which would restrict the use of information collected under Section 702 to topics generally covered by the known certificates for it: terrorists, spies, proliferation, nation-state hacking, and other critical infrastructure issues.

(2) LIMITATION ON USE OF CERTAIN EXCEPTED QUERIED INFORMATION.—No information accessed or disseminated pursuant to section 702(j)(2)(D)(iv), or evidence derived therefrom, may be received in evidence or otherwise used pursuant to paragraph (1), except—

(A) with the prior approval of the Attorney General; and

(B) in a proceeding or investigation in which the information or evidence is directly related to and necessary to address a specific threat of—

(i) an act of terrorism specified in clauses (i) through (iii) of section 2332b(g)(5)(B) of title 18, United States Code;

(ii) espionage (as used in chapter 37 of title 18, United States Code);

(iii) proliferation or use of a weapon of mass destruction (as defined in section 2332a(c) of title 18, United States Code);

(iv) a cybersecurity threat (as defined in section 101(5) of the Cybersecurity Information Sharing Act of 2015 (6 U.S.C. 1501(5)) from a foreign country;

(v) incapacitation or destruction of critical infrastructure (as defined in section 1016(e) of the USA PATRIOT Act (42 16 U.S.C. 5195c(e))); or

(vi) a threat to the armed forces of the United States or an ally of the United States or to other personnel of the United States Government or a government of an ally of the United States.

Leahy-Lee still permits the collection of entirely domestic communications

The difference is important because Leahy-Lee does nothing to stop the known collection of entirely domestic communications, which I have reported involves the collection of Tor and (probably) VPN traffic. At least under HJC, that information can’t be used for many of the domestic crime purposes explicitly laid out in the SSCI bill, including murder, child porn, human trafficking (presumably including sex work), and narcotics trafficking. But Leahy-Lee would permit those uses.

Leahy rolled out his bill with this erroneous statement from Liza Goitein.

Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program, said:  “This bill fixes the most serious problem with Section 702 surveillance today: the government’s ability to read Americans’ e-mails and listen to their telephone calls without a warrant,” and called the legislation “a very promising development in the reform debate.”

This is false. Leahy-Lee still permits the government to access (and with DIRNSA approval, retain) the entirely domestic communications of the 430,000 Americans that use Tor each day. Perhaps that’s why Leahy had Goitein make the comment, because he surely knows this is false.

ACLU comes out in support of a bill they admit is constitutionally deficient

And Goitein’s Brennan Center is not the only NGO supporting this bill. ACLU released a statement that can only be described as schizophrenic in support of the bill. While ACLU’s legislative counsel, Neema Singh Guliani, thankfully makes none of the errors that Goitein makes, she nevertheless admits that 702 remains constitutionally problematic.

“While this bill does not address all the constitutional concerns with Section 702, it represents an important step forward from the dismal status quo. The ACLU supports this bill, and urges Congress to ensure its reforms become law.”

And the statement goes on to lay out, correctly, several advantages of the Wyden-Paul bill, including ensuring that defendants (and affected people, like lawyers from ACLU working with targeted clients internationally) get notice and can challenge collection.

The ACLU urges improvements to the bill that would require a court order to access metadata collected under Section 702, narrow collection, and ensure the government provides appropriate notice.

Congress is currently considering several bills in advance of the Section 702 reauthorization deadline. Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.) have introduced S.1997, the USA Rights Act, which completely closes the backdoor search loophole, ends the collection of known domestic communications, and takes steps to ensure that the government provides notice to individuals who have Section 702 information used against them. The ACLU supports this bill.

I’m very confused — and, as a member, gravely concerned — about why the ACLU would adopt such a schizophrenic strategy, and why it would lobby in favor of things that its other lawyers are litigating against.

ACLU risks losing the ability to sue on these issues in the future if it remains on this bill (which is one reason I was so glad they didn’t back USA Freedom in 2015). And if they can’t sue, than we can’t fix the issues that ACLU, in its statement, lays out as problems in Leahy-Lee.

Some Thoughts On The Arpaio Pardon

As you probably already know, Trump has pardoned Joe Arpaio. It is an abominable act by a lawless jackass. One lawless jackass pardoning another lawless jackass. Trump and Arpaio are really two peas in the same racist bigot pod; both supreme narcissists, ignorant and contemptuous of the rule of law down to their deepest bone.

And Marcy Wheeler is right that the nation as a whole is not the audience Trump is signaling, and while “Trump’s base” may be part of his audience in making this pardon move, it is likely even more intended for law enforcement. Police unions were almost across the board for Trump, and they do speak for their rank and file. Not to mention that all cops are fine with a pro law enforcement approach of Trump and his DOJ, not just the racist bigot ones.

The ACLU statement on the pardon is good:

For more from the ACLU, see the Twitter feed of Cecilia Wang, the litigation lead for ACLU on the Melendres and Arpaio litigation (she is seriously great).

But the ACLU doesn’t really go far enough. A couple of weeks ago I tweeted:

Because there is no point to which @realDonaldTrump will not shit on the rule of law and sanctity of federal courts. What a piece of shit.

That was a little flippant, but there is simply no question but that the pardon of Joe Arpaio is Donald Trump is degrading the Constitution and undermining the very fabric of the sanctity of courts and Rule of Law itself. If the Presidential pardon was not so unbound, this pardon would not stand up. It violates every iota of the American rule of law. It also is heinously invasive to the separation of powers in that it infringes on the power of the federal courts. But, again, don’t buy any nut telling you this pardon is unconstitutional or won’t stand up. That is silly, it is Constitutional, and it will stand up.

That said, Noah Feldman did a good piece explaining just what a Constitutional affront this act is, and should be considered:

To see why pardoning Arpaio would be so exceptional — and so bad — you have to start with the sheriff’s crime. Arpaio wasn’t convicted by a jury after a trial for violating some specific federal statute. Rather, he was convicted by a federal judge on the rather unusual charge of criminal contempt of court.

Specifically, Arpaio was convicted this July by Judge Susan Bolton of willfully and intentionally violating an order issued to him in 2011 by a different federal judge, G. Murray Snow.

Judge Bolton convicted Arpaio of criminal contempt. She found he had “willfully violated” the federal court’s order “by failing to do anything to ensure his subordinates’ compliance and by directing them to continue to detain persons for whom no criminal charges could be filed.” And she held that Arpaio had “announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise.”

This is the crime that Trump is suggesting he might pardon: willful defiance of a federal judge’s lawful order to enforce the Constitution.

It’s one thing to pardon a criminal out of a sense of mercy or on the belief that he has paid his debt to society.

It’s trickier when the president pardons someone who violated the law in pursuit of governmental policy, the way George H.W. Bush pardoned the Iran-Contra participants, including Oliver North.

But it would be an altogether different matter if Trump pardoned Arpaio for willfully refusing to follow the Constitution and violating the rights of people inside the U.S.

Such a pardon would reflect outright contempt for the judiciary, which convicted Arpaio for his resistance to its authority. Trump has questioned judges’ motives and decisions, but this would be a further, more radical step in his attack on the independent constitutional authority of Article III judges.

An Arpaio pardon would express presidential contempt for the Constitution. Arpaio didn’t just violate a law passed by Congress. His actions defied the Constitution itself, the bedrock of the entire system of government. For Trump to say that this violation is excusable would threaten the very structure on which is right to pardon is based.

Go read Noah’s entire piece at Bloomberg, you should. It perfectly captures everything I have thought ever since Arpaio was convicted by Judge Susan Bolton in July, and pardon talk started up. And, make no mistake, Arpaio started carping about getting a Trump pardon almost immediately, even if behind the scenes. It started long before the last 10 days.

To add insult to injury, Trump had the gall to issue this announcement after glibly leaving for the personal golf driving range at Camp David with a message to the victims in Texas and the Gulf Coast, who are currently being hammered by a Category Four hurricane and face imminent disaster. Trump’s message was “good luck”. What a complete cad.

And after callously signing his order implementing his patently discriminatory transgender ban for the military. Chris Geidner has a good report on that.

Just for the record, this is Trump’s first pardon issued, and for that he chose the most craven one imaginable. For comparison, both Obama and Bush waited nearly two years, and applied the power only to subjects properly vetted by the DOJ traditional pardon process, a copy of which is here for reference. Arpaio was not even eligible for consideration at this point, much less deserving under the guidelines. Those guidelines can be found here, pay particular attention to §1-2.112. To be clear, Arpaio had not even been sentenced yet, and was almost certainly not going to be sentenced to incarceration by Sue Bolton. I have known Judge Bolton for nearly 30 years, and I just cannot fathom that she was going to do more than give a nominal fine to Arpaio.

Craven jackass Arapio has already started crowing about his ill begotten good fortune through, what else, Twitter:

Thank you @realdonaldtrump for seeing my conviction for what it is: a political witch hunt by holdovers in the Obama justice department!

What a racist bigot ass. Joe Arapio came into office on the wings of lies he told his initial backers. Before we close, a little story I wrote here a few years ago:

Joe Arpaio did not magically come to be Sheriff of Maricopa County. It happened because the two previous occupants of the Sheriff’s Office were, shall we say, problematic on their own. There was Dick Godbehere, who was, prior to being Sheriff of the fourth largest county in the United States, literally a lawn mower repairman. No, I kid you not. And he served with the same level of sophistication you would expect of a lawn mower repairman.

Then came Tom Agnos, who was supposed to return “professionalism” to the Maricopa County Sheriff’s Office (MCSO). But Agnos was a subservient Sun City resident who led the MCSO into not just the biggest cock-up in Maricopa county law enforcement history, but one of national and international proportion. The Buddhist Temple Murder Case where nine buddhist monks and acolytes were lined up and shot in the back of the head, execution style, at the Wat Promkunaram Buddhist Temple on the west side of Phoenix.

It was out of the Buddhist Temple Murders Joe Arpaio came to be. A group of prominent Phoenix trial attorneys, both criminal and civil, wanted an alternative to Tom Agnos and the whitewashing coverup he was conducting on one of the greatest coerced false confession cases in world history. The group of trial lawyers coalesced around the upstart primary candidacy of a local travel agent with a colorful background. Yep, one Joseph Arpaio.

Joseph Arpaio promised that initial group of trial lawyers he would clean up the MCSO, release the damning internal report of the gross misconduct that had occurred in the Temple Murder Case under Tom Agnos, which lead to at least four false and heinously coerced confessions, and that he would refuse, under all circumstances, to serve more than one term in office. It was a promise made and, obviously, a promise long ago broken.

To be fair, Arpaio did release the internal report on the Temple Murder Case, which led to five plus million dollar settlement for some of the most wrongfully arrested souls in American history. But with that promise kept within a short time of taking office, Joe Arpaio breached the solid promise he made to the people who gave him the seed funding carrying him into office. And Arpaio has made a mockery of his word, as a man, ever since by repeatedly running for office and sinking Maricopa County into depths of depravity and fiscal distress beyond comprehension, from the vantage of the MCSO.

So, now you know just exactly how Joe Arpaio came into office on the wings of lies. He leaves today on the wings of a Constitutional fraud and spittle in the face of the Rule of Law.

As a parting shot, the picture at the head of this article is of Arpaio at a cocktail party getting a surprise visit from Michael Manning, the local civil rights attorney who has fleeced Maricopa County for over $50 million because of Joe Arpaio’s craven and illegal actions. Arpaio was not thrilled to get his photo taken.

“In the First Half of 2016” Signal Received an (Overbroad) Subpoena

This morning, the ACLU released a set of information associated with a subpoena served on Open Whisper Systems, the maker of Signal)\, for information associated with two phone numbers. As ACLU explained, OWS originally received the subpoena with a broad gag order. OWS was only able to turn over the account creation and last connection date for one of the phone numbers; the other account had no Signal account associated with it.

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But OWS also got ACLU to go challenge the gag associated with it, which led to the release of today’s information. All the specific data associated with the request is redacted (as reflected above), though ACLU was able to say the request was served on OWS in the first half of the year.

There are two interesting details of this. First, as OWS/ACLU noted in their response to the government, the government asked for far more information than they can obtain with a subpoena, including:

  • subscriber name
  • subscriber address
  • subscriber telephone numbers
  • subscriber email addresses
  • subscriber method of payment
  • subscriber IP registration
  • IP history logs and addresses
  • subscriber account history
  • subscriber toll records
  • upstream and downstream providers
  • any associated accounts acquired through cookie data
  • any other contact information from inception to the present

As OWS/ACLU noted,

OWS notes that not all of those types of information can be appropriately requested with a subpoena. Under ECPA, the government can use a subpoena to compel disclosure of information from an electro1lic communications service provider onJy if that information falls within the categories listed at 18 U.S.C. § 2703(c)(2). For other types of information, the government must obtain a court order or search warrant. OWS objects to use of the grand-jury subpoena to request information beyond what is authorized in Section 2703(c)(2).

I’ve got an email in with ACLU, but I believe ECPA would not permit the government to obtain the IP, cookie, and upstream/downstream information. Effectively, the government tried to do here what they have done with NSLs, obtain information beyond the subscriber and toll record information permitted by statute.

ACLU says this is “the only one ever received by OWS,” presumably meaning it is the only subpoena the company has obtained, but it notes the government has other ways of gagging compliance, including with NSLs (it doesn’t mention Section 215 orders, but that would be included as well).

I do wonder whether in the latter case — with a request for daily compliance under Section 215 — Signal might be able to turn over more information, given that they would know prospectively the government was seeking the information. That’s particularly worth asking given that the District that issued this subpoena — Eastern District of Virginia — is the one that specializes in hacking and other spying cases (and is managing the prosecution of Edward Snowden, who happens to use Signal), which means they’d have the ability to use NSLs or individualized 215 orders for many of their cases.

Update: Here’s a Chris Soghoian post from 2013 that deals with some, but not all, of the scope issues pertaining to text messaging.

In 2010, DOJ Was Stalling Gang of Four Member Silvestre Reyes Over (Probably) Common Commercial Services Memo

As far as the public record shows, Ron Wyden first started complaining about the Common Commercial Service OLC Memo in late 2010, in a letter with Russ Feingold written “over two years” before January 14, 2013. As I’ve written, John Yoo wrote the memo on May 30, 2003, as one of the last things he did before he left the Office of Legal Council. It seems to have something to do with both the Stellar Wind program and cybersecurity, and apparently deals with agreements with private sector partners. At least one agency has operated consistently with the memo (indeed, Ron Wyden’s secret memo submitted to the court probably says the memo was implemented) but the government claims that doesn’t mean that agency relied on the memo and so the ACLU can’t have it in its FOIA lawsuit.

According to a letter liberated by Jason Leopold, however, someone in Congress was raising concerns about a memo — which is probably the same one — even before Wyden and Feingold were. On June 30, 2010, then Chair of the House Intelligence Committee Silvestre Reyes wrote Attorney General Holder a letter about a May 30, 2003 memo. On October 5, Ron Weich wrote Reyes,

We have conferred with Committee staff about your letter and your concerns regarding the potential implications of the opinion. We appreciate your concerns and your recognition of the complexities of the issues involved in our consideration of your request. We will let you know as soon as we are in a position to provide additional information.

In other words, three months after one of the top ranking intelligence overseers in government raised concerns about the memo, DOJ wrote back saying they weren’t yet “in a position to provide additional information.”

That seems like a problem to me.

It also seems to be another data point suggesting that — whatever the government did back in 2003, after Yoo wrote the memo — it was being discussed more generally in 2010, possibly with an eye to implement it.

Update: On reflection, I may have overstated how sure we can be that this May 30 opinion is the same opinion. I’ve adjusted the post accordingly.

 

One Reason CIA Is Claiming Drone Emails Are Top Secret: ACLU’s FOIA

The NYT has a really helpful description of the emails to Hillary that intelligence agencies are claiming are Top Secret. It explained how several of the emails almost certainly couldn’t derive from the intelligence the agency claimed they came from, such as this one on North Korea.

The fourth involved an email sent by Kurt M. Campbell, the assistant secretary of state for Asian affairs, shortly after a North Korean ballistic missile test in July 2009. The email has not yet been made public, even in redacted form, but the State Department has challenged an assertion from the National Geospatial-Intelligence Agency, which gathers data through satellite images, that the email included information that came from a highly classified program.

In a letter this past Dec. 15 to Senator Bob Corker, the Tennessee Republican who is chairman of the Senate Foreign Relations Committee, a State Department official said that the information could not have been based on N.G.A.’s intelligence because Mr. Campbell did not receive any classified intelligence briefings for what was a new job for him until a few days after the North Korean test.

I believe the NGA was dawdling on signing a sworn declaration about this email, unlike the CIA (whose Martha Lutz has signed her name to many a wacky claim).

Unsurprisingly, the NYT reports that the bulk of the emails in question pertain to the drone program, specifically in Pakistan.

The Obama administration’s decision to keep most internal discussions about that program — including all information about C.I.A. drone strikes in Pakistan — classified at the “top secret” level has now become a political liability for Mrs. Clinton’s presidential campaign.

[snip]

Several officials said that at least one of the emails contained oblique references to C.I.A. operatives. One of the messages has been given a designation of “HCS-O” — indicating that the information was derived from human intelligence sources — a detail that was first reported by Fox News. The officials said that none of the emails mention specific names of C.I.A. officers or the spy agency’s sources.

The government officials said that discussions in an email thread about a New York Times article — the officials did not say which article — contained sensitive information about the intelligence surrounding the C.I.A.’s drone activities, particularly in Pakistan.

The officials said that at least one of the 22 emails came from Richard C. Holbrooke, who as the administration’s special envoy for Afghanistan and Pakistan would have been intimately involved in dealing with the ramifications of drone strikes. Mr. Holbrooke died in December 2010.

Reading these passages and the article in general made me realize something: The reason the CIA is insisting these are classified is almost certainly because of the ACLU’s two FOIAs for drone information. In the Awlaki-focused one, the ACLU (and NYT) succeeded in arguing that past public statements from people like Leon Panetta constituted a waiver of the classification of the CIA’s involvement in the program. Any public dissemination of other official Administration figures discussing the drone program would provide ACLU another opportunity to go to the judges in these cases and demand further disclosure about CIA’s involvement in the drone program.

Over the years, the Obama Administration has gone to great lengths to defeat the ACLU in its various FOIAs, from having National Security Advisor Jim Jones get involved in the torture FOIA to delaying congressional oversight into the Awlaki killing. Here, it appears they’re even willing to damage Hillary’s campaign to serve as the inheritor to Obama’s legacy to thwart the ACLU.

Obama Administration Changed the Rationale for Why Assassinations Don’t Violate the Assassination Prohibition

As a number of outlets have reported, the Second Circuit last month upheld the government’s effort to keep a March 29, 2002 OLC memo pertaining to targeted killing secret; the opinion was unsealed yesterday. The government is probably doing so to keep changes in their rationale for why assassinations don’t violate the prohibition on assassination in EO 12333 secret.

The judges on the panel — especially Judge Jon Normand, who wrote the opinion — had pushed during an ex parte hearing in June to release language in that earlier memo because the dog & pony show around drone strikes in 2012 to 2013 had used closely related language. But after some more secret briefing, the court decided the application of EO 12333 was different enough such that it remained properly protected.

It seems highly likely the specific part of EO 12333 under discussion pertains to the assassination ban. Between the earlier hearing and the opinion, the court pointed to language in the March 25, 2010 Harold Koh speech, the March 5, 2012 Eric Holder speech, and the April 30, 2012 John Brennan speech on targeted killing (they also pointed to two Panetta comments). Each of the cited speeches discusses the assassination ban — and little else that might directly pertain to EO 12333, besides just generally covert operations authorized under Article II. There’s this language in Koh’s speech.

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

This language in Holder’s speech,

Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

And this language in Brennan’s speech.

In this armed conflict, individuals who are part of al-Qa’ida or its associated forces are legitimate military targets.  We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II.

But even though all these public speeches commented on this interpretation of the assassination ban, the 2nd Circuit still permitted the government to shield the earlier memo.

The transcript of the June ex parte hearing reveals one explanation for that: the earlier memo was a “far broader interpretation” of the issue.

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That’s consistent with the government’s earlier claim (which I wrote about here).

Although the district court noted that the OLC-DOD Memorandum released by this Court contained a “brief mention” of Executive Order 12,333, the district court concluded that the analysis in the March 2002 Memorandum is significantly different from any legal analysis that this Court held has been officially disclosed and for which privilege has been waived.

In other words, while the earlier memo discusses the same aspect of EO 12333 as these public speeches (again, the assassination ban is by far the most likely thing), the earlier memo uses significantly different analysis, and so it may be hidden.

The June transcript also reveals that OLC lawyers reviewed and wrote on the 2002 memo at a later time — the implication being that someone in OLC reviewed the earlier memo in 2010 when writing the Awlaki one (and curiously, that hard copy with handwritten notes is the only one DOJ claims it can find).

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There are two things I find increasingly interesting about this earlier memo about EO 12333 — including at least one part presumably about the assassination ban. First, the implication that one of the lawyers reviewing it in 2010 saw the need to write a new memo (perhaps seeing the need to clean up yet more crazy John Yoo language? who knows). As I repeat endlessly, we know there’s a memo of uncertain date in which Yoo said the President could pixie dust the plain language of EO 12333 without changing the public language of it, and it’s possible this is what that memo did (though the President was clearly pixie dusting surveillance rules).

But I’m also interested in the date: March 29, 2002. The day after we captured Abu Zubaydah (who, at the time, top officials at least claimed to believe was a top leader of al Qaeda). The SSCI Torture Report made it clear the CIA originally intended to disappear detainees. Were they planning to execute them? If so, what stopped things?

In any case, CIA won its battle to hide this earlier discussion so we may never know. But it appears that DOJ may have felt the need to think thing through more seriously before drone assassinating a US citizen. So there is that.

 

Defining Stingray Emergencies … or Not

A couple of weeks ago, ACLU NoCal released more documents on the use of Stingray. While much of the attention focused on the admission that innocent people get sucked up in Stingray usage, I was at least as interested in the definition of an emergency during which a Stingray could be used with retroactive authorization:
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I was interested both in the invocation of organized crime (which would implicate drug dealing), but also the suggestion the government would get a Stingray to pursue a hacker under the CFAA. Equally curiously, the definition here leaves out part of the definition of “protected computer” under CFAA, one used in interstate communication.

(2) the term “protected computer” means a computer—
(A) exclusively for the use of a financial institution or the United States Government, or, in the case of a computer not exclusively for such use, used by or for a financial institution or the United States Government and the conduct constituting the offense affects that use by or for the financial institution or the Government; or
(B) which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States;

Does the existing definition of an emergency describe how DOJ has most often used Stingrays to pursue CFAA violations (which of course, as far as we know, have never been noticed to defendants).

Now compare the definition Jason Chaffetz used in his Stingray Privacy Act, a worthwhile bill limiting the use of Stingrays, though this emergency section is the one I and others have most concerns about. Chaffetz doesn’t have anything that explicitly invokes the CFAA definition, and collapses the “threat to national security” and, potentially, the CFAA one into “conspiratorial activities threatening the national security interest.”

(A) such governmental entity reasonably determines an emergency exists that—

(i) involves—

(I) immediate danger of death or serious physical injury to any person;

(II) conspiratorial activities threatening the national security interest; or

(III) conspiratorial activities characteristic of organized crime;

Presumably, requiring conspiratorial activities threatening the national security interest might raise the bar — but would still permit — the use of Stingrays against low level terrorism wannabes. Likewise, while it would likely permit the use of Stingrays against hackers (who are generally treated as counterinteligence threats among NatSec investigators), it might require some conspiracy between hackers.

All that said, there’s a whole lot of flux in what even someone who is often decent on civil liberties like Chaffetz considers a national security threat.

And, of course, in the FISA context, the notion of what might be regarded as an immediate danger of physical injury continues to grow.

These definitions are both far too broad, and far too vague.