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DiFi and Pat Leahy, Silencing the Librarians

librarian-shh.thumbnail.jpgThere’s a cynical passage in the new PATRIOT language that DiFi put forward the other night. It basically creates an exception in the worsened Section 215 language just for libraries.

‘‘(B) if the records sought pertain to libraries (as defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), including library records or patron lists, a statement of facts showing that there are reasonable grounds to believe that the records sought—‘‘(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against inter-national terrorism or clandestine intelligence activities; and ‘‘(ii)(I) pertain to a foreign power or an agent of a foreign power; ‘‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ‘‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power;

This language requires that before investigators demand libraries turn over records, they must first prove that the person to whom the records pertain is either an intelligence investigation suspect, or is in contact with one. So for library records, and library records only, the new language requires some showing of reasonable cause first before the investigators can request the information.

During the hearing, Ben Cardin asked why there was a special standard for libraries (at about 108:30 in the hearing). Kyl offered this explanation for the exception (one he disagrees with):

Kyl: There was such a–I would say–unwarranted and irrational, and I certainly don’t apply that word to anyone here but from some folks out in the country–concern about library records as the result of blogs and so on, it was simply easier to say, okay, cut it loose, it’s important but not that important to hold up the rest of the legislation.

[snip]

In order to get rid of the political argument that was, essentially, irrelevant in almost all investigations, it was simply easier to cut that lose and have a different standard for it.

Durbin then calls Leahy and Kyl on their cynicism, arguing that the exception just for libraries proves that the underlying principle of Section 215, as written, is unsound.

Durbin: Senator Kyl raised an interesting question. Why aren’t more people complaining about this if it is such a problem? Read more

DiFi’s Invitation to a Fishing Expedition

fly_fishing_in_southeast_louisiana.thumbnail.jpgAs I noted last night, DiFi appears to have used the Najibullah Zazi investigation as justification to make the language surrounding Section 215 of the PATRIOT Act worse, effectively granting the FBI the ability to collect secret lists of everyone who buys acetone or hydrogen peroxide.

As a reminder, Section 215 gives investigators a way to get business records or other tangible things without telling the people who those business records pertain to that they have done so. I have speculated that the FBI is using Section 215 now to search out people–who may or may not have known ties to alleged Islamic terrorists–who have purchased the precursors of TATP, the explosive that Najibullah Zazi is alleged to have tried to make. Those precursors include things like hydrogen peroxide and acetone, both common ingredients of beauty and home improvement supplies.

Here is the current Section 215 language on targeting (I’ve used bold and strike-through here to show significant changes).

(2) shall include— (A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—

(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation

Here’s the language that Pat Leahy had originally proposed.

(A) a statement of facts showing that there are reasonable grounds to believe that the records or other things sought–

‘(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and

‘(ii)(I) pertain to a foreign power or an agent of a foreign power;

‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power;

Leahy’s language made the burden of proof here tougher, particularly in the case of someone simply "in contact with, or known to" a suspected agent of a foreign power. He took out the "presumptively relevant" language, effectively requiring the FISA Court Judge to determine this information was actually relevant to the investigation.

But here’s what I understand DiFi has changed the language to Read more

The Evidence Against Zazi

As I reported earlier, during the hearing on the reauthorization of the PATRIOT Act today, DiFi said that the investigation against Najibullah Zazi is the biggest investigation since 9/11. She connected changes she had made in the proposed bill’s language about Section 215 Orders (which allow investigators to get any tangible thing from a third party, but which is generally used for business records) with that investigation. I will review the language she’s advocating tomorrow–it is actually worse than the existing language (here’s a good post on DiFi’s changes that’ll give you an idea of where I’m going). But the main point is she’s insisting that investigators be able to use Section 215 even to get information on people with no known tie to terrorism.

In an effort to understand what authorities the FBI is using for this investigation–particularly how it is using Section 215–I thought I’d list all the evidence included in Zazi’s detention motion, along with any comments made about how that evidence was collected. As you can see from the list below, a lot of this investigation relied on information that could be collected via a Section 215 order–particularly the purchase information on Triacetone Triperoxide (TATP) ingredients, but also the hotel records. Perhaps most interesting is the discussion of the three people "associated with Zazi" who bought TATP ingredients bolded in the list below; the source of this evidence is not disclosed.

Details on a August 28, 2008 flight from Newark Airport to Peshawar, Pakistan on Qatar Airlines, evidence collected from Custom and Border Protection

Email account 1, Email account 2, Email account 3

A jpeg of 9 pages of handwritten notes containing instructions on making explosives, including TATP, mailed in December 2008, collected via a "consent search"

Details on a January 15, 2009 flight from Peshawar to JFK on Qatar Airlines

Evidence Zazi transferred and/or accessed the notes on the instructions to make TATP on his laptop in June and July 2009, collected via a "lawfully-authorized search" of the laptop (apparently conducted in September in NY)

Evidence of internet searches for hydrochloric acid in summer 2009 and bookmarks (in two browsers) for a site on "Lab Safety for Hydrochloric Acid," collected via that "lawfully-authorized search" of the laptop 

Evidence Zazi searched "a beauty salon website" for hydrocide and peroxide (the source of this is not specified but it appears in the same paragraph as the discussion of the "lawfully authorized search")

Read more

More CIA Lies about Torture Briefings

Time has an important story matching a claim made in Steven Bradbury’s July 20, 2007 OLC memo about Congressional briefings on torture with what the Senators themselves (particularly John McCain) say about briefing they received. The claim–which appears in the middle of a discussion about what shocks the conscience (pages 43-44)–is this:

Nevertheless, you have informed us that prior to passage of the Military Commissions Act, several Members of Congress, including the full memberships of the House and Senate Intelligence Committees and Senator McCain, were briefed by General Michael Hayden, Director of the CIA, on the six techniques that we discuss herein and that, General Hayden explained, would likely be necessary to the CIA detention and interrogation program should the legislation be enacted. In those classified and private conversations, none of the Members expressed the view that the CIA detention and interrogation program should be stopped, or that the techniques at issue were inappropriate. Many of those Members thereafter were critical in ensuring the passage of the legislation, making clear through their public statements and through their votes that they believed that a CIA program along the lines General Hayden described could and should continue.

The Time article focuses closely on McCain’s objection to this representation:

A spokeswoman for McCain said that contrary to those claims, the Arizona Republican repeatedly raised objections in private meetings, including one with Hayden, about the use of sleep deprivation as an interrogation technique. "Senator McCain clearly made the case that he was opposed to unduly coercive techniques, especially when used in combination or taken too far — including sleep deprivation," says Brooke Buchanan, a spokeswoman for McCain.

Less prominent, but important given her current position as Chair of SSCI investigating–among other things–CIA’s lies about briefings, is this objection from DiFi:

In the weeks that followed, according to a person familiar with matter, California Democrat Diane Feinstein, a member of the committee, raised concerns with the CIA about use of enhanced interrogation techniques.

Now, some of the people briefed have already raised objections about the characterizations made of these briefings (for example, Feingold wrote a letter objecting to the program and later wrote objecting to Hayden’s representations of his briefings on the program). Read more

Why Can’t CIA Handle the Same Level of Oversight the Military Gets?

"We tortured Qahtani," the convening authority for military commissions, Susan Crawford, admitted to Bob Woodward earlier this year. "His treatment met the legal definition of torture."

Though I’m sure it happened, any criticism of Crawford for this admission was muted. I know of no one who claimed that Crawford was causing servicemen and women to be distracted from their core mission of protecting the country. No skies fell, and few claimed they had or would.

But it’s not just Crawford who confessed that the military tortured a Gitmo detainee. Congress, too, has chronicled the ways in which the military tortured detainees. The Senate Armed Services Committee spent eighteen months investigating the way in which the military adapted SERE techniques for use on al Qaeda, Afghan, and Iraqi detainees. Their report describes how techniques approved by Donald Rumsfeld for some circumstances–sleep deprivation and stress positions contributed to homicides in Afghanistan.

In December 2002, two detainees were killed while detained by CITF-180 at Bagram. Though the techniques do not appear to have been included in any written interrogation policy at Bagram, Army investigators concluded that the use of stress positions and sleep deprivation combined with other mistreatment at the hands of Bagram personnel, caused or were direct contributing factors in the two homicides.

It describes how, a month before those homicides, the Special Forces wrote a memo noting their risk in participating in such interrogations.

"we are at risk as we get more ‘creative’ and stray from standard interrogation techniques and procedures taught at DoD and DA schools and detailed in official interrogation manuals."

It describes the CIA’s General Counsel warning DOD that certain units in Iraq were using methods that not even the CIA would use on the same detainees (suggesting the military interrogators were violating the Geneva Conventions in a legal war zone).

CIA General Counsel Scott Muller had called Jim Haynes and told him that the techniques used by military interrogators at the SMU TF facility in Iraq were "more aggressive" than techniques used by CIA to interrogate the same detainees.

It describes the actions those who tortured, those who planned the torture, and those who authorized it.

Read more

No, DiFi, the Competition Is with Canada (and Mexico)

I’ve been meaning to cover the likely closure of the joint Toyota-GM plant in Fremont, CA for some time. But this comment from DiFi is worth a post in itself.

Sen. Dianne Feinstein, D-Calif., led a delegation of state lawmakers who said Thursday that they were exploring the use of stimulus funds among other moves to keep Toyota in California.

"But one of the things California has to come to grips with is that the competition here is Kentucky and Mississippi, and you have this high cost-of-doing-business problem," said Feinstein, who phoned Gov. Arnold Schwarzenegger to talk about Nummi.

The NUMMI (New United Motor Manufacturing Inc) plant was opened as a joint venture between Toyota and GM in 1984. Back then it was a shiny new-fangled plant–the future of auto assembly in the United States. It’s also, notably, Toyota’s only unionized American plant. GM has pulled out of the partnership as part of its bankruptcy which has led Toyota to consider closing the plant altogether. DiFi and the rest of CA’s politicos are scrambling to save the 4700 high-paid union jobs.

And, apparently, DiFi has created a myth for herself that she is competing with (just) Kentucky and Mississippi for these jobs.

To the extent that CA is now putting together a set of incentives to convince Toyota to stay–a model pioneered by southern states–she is correct. And to the extent that Toyota might move the Corolla and Tacoma production to their currently vacant MS plant (which was originally slated to assemble the Prius), she is correct that she’s competing against MS.

But the more likely location for the production currently done in Fremont, CA is–for the Tacoma–Mexico and–for the Corolla–Canada, where factories that already produce those models are currently running below capacity.

In addition, Toyota has plenty of unused production capacity in North America — including factories in Mexico and Canada that make the Tacoma and the Corolla, said George Peterson, president of Tustin consulting firm AutoPacific.

[snip]

Toyota’s sales in the U.S. are down almost 38% this year as the auto industry suffers its worst slump in decades. As a result, the automaker has excess production capacity at its North American auto plants, which can produce more than 400,000 vehicles a year.

Read more

The Scope of the SSCI Investigation and Where It Leads

Honest. I was going to write this post today or yesterday or tomorrow even before Rachel Maddow said people would be parsing her interview last night with Sheldon Whitehouse closely (here’s the full interview).

Back in February, I was very skeptical whether a DiFi-led SSCI investigation into torture would be a rigorous investigation. I owe DiFi an apology, because by all appearances this investigation is time-consuming, demanding, and productive. The Senate Intelligence Committee has been maintaining an unbelieveable pace of closed hearings this year–often two a week–many of which must deal with this investigation (though some clearly deal with other intelligence issues such as the warrantless wiretapping program). At least per Rachel’s comments in her interview with Senator Whitehouse, the committee won its squabble with CIA to get unredacted cables from the field. And as a result of the hearings, Sheldon Whitehouse has come out and said "no further actionable intelligence" was gotten through waterboarding Abu Zubaydah. Thus far, this is not the weasely whitewash we’ve come to expect from SSCI (though it remains to be seen whether Kit Bond and friends can politicize whatever report we get out of it–and whether we get a report at all). So I apologize to DiFi for my doubts.

I wanted to look at the scope and the direction of this investigation–at least what we know. Both at the beginning, and now, SSCI has said the investigation covers three things:

  • Whether detentions and interrogations complied with DOJ authorizations
  • Whether the interrogations gained valuable intelligence or not
  • Whether SSCI was kept properly informed

Here’s how Whitehouse described the questions they’re asking in his Senate speech the other day:

I see three issues we need to grapple with. The first is the torture itself: What did Americans do? In what conditions of humanity and hygiene were the techniques applied? With what intensity and duration? Are our preconceptions about what was done based on the sanitized descriptions of techniques justified? Or was the actuality far worse?

Were the carefully described predicates for the torture techniques and the limitations on their use followed in practice? Or did the torture exceed the predicates and bounds of the Office of Legal Counsel opinions?

[snip–Whitehouse basically interjects the same argument I made here, that Panetta’s declaration makes it clear the torture did exceed OLC bounds]

The questions go on: What was the role of private contractors? Why did they need to be involved? And did their peculiar motivations influence what was done? Ultimately, was it successful? Did it generate the immediately actionable intelligence protecting America from immediate threats that it had been sold as producing? How did the torture techniques stack up against professional interrogation?

Well, that is a significant array of questions all on its own, and we intend to answer them in the Senate Intelligence Committee under the leadership of Chairman Feinstein, expanding on work already done, thanks to the previous leadership of Chairman Rockefeller.

As I noted, both Whitehouse and I have pointed out that Panetta’s declaration by itself makes clear that the torture exceeded the authorizations it had gotten from OLC–but we already knew that from the CIA itself. And as Whitehouse has made clear, and I have made clear, we already know the program was ineffective–but we already knew that from the CIA itself. And (though Whitehouse doesn’t focus on this aspect of the investigation), we know that CIA did not brief SSCI the way it said it did–nor in the manner it was legally obliged to do. We know that, too, from the CIA itself.

So where does that lead us? That’s why this exchange from Rachel’s interview with Whitehouse last night is so important.

Maddow: The way you’ve described that makes me want to ask a question that no one’s been able to tell me–and I’ve been asking a lot of people. The remit of what the intelligence committee is looking at right now–looking at what happened to High Value Detainees, millions of pages of documents, succeeded in getting agreements to get stuff completely unredacted. We know it’s going to be a big comprehensive look at what happened to those High Value Detainees. Does it only look at what the CIA did, or will it look at the chain of command, whether or not instruction came from the White House, the Office of the Vice President beyond the Intelligence Agency?

Whitehouse: We’re not at the stage yet, in the investigation, where those chain of command issues are yet raised. I hope very much that it will. I believe it implicates chain of command issues. And I think that that’s a critical question.

Maddow: But it’s not what the intelligence committee is looking at right now and we should not expect that will be in the intelligence committee’s report when it comes out in six months or so?

Read more

CIA: Congress Shouldn’t Get Records of Our Crimes

Mark Hosenball reports on some anonymous current and former CIA officers complaining that Congress wants to do oversight. In particular, they’re bitching that Leon Panetta seems willing to give Congress the operational cables–such as the ones listed in this log–describing the methods used during detainee interrogations and the people who used those methods.

"Operational traffic" refers to cables from the field to CIA headquarters, and they go well beyond the intelligence reports routinely provided to Congress, chronicling in exacting, minute-by-minute detail who did what to whom, and how detainees responded to particular questions and techniques.

[snip]

Panetta’s instinct was to give Congress what it wanted. But undercover officers warned him that this would break with standard practice, and veteran spies worried that it would chill brainstorming between field agents and their controllers. Aiming to compromise, Panetta signaled to Congress that the CIA would turn over only redacted documents—and that it would take a long time to vet as many as 10 million pages of cable traffic.

Congressional investigators aren’t backing down, however, insisting on all of the material without deletions, including names of personnel who participated in harsh questioning, and holding subpoenas in reserve. 

The real purpose of the story, presumably, is for anonymous CIA officers to repeat the old worried threat–that they’ll "lose their sense of mission" if the details of their actions become known to those exercising oversight over them. And, most amusing, the threat that CIA will end oversight if any of these details leak.

"If they blow this, if stuff leaks or it all gets turned into a political circus, you can close the book on the current system of intelligence oversight," one intel official warned. "Nobody will trust it."

Hahahahahahaha!!! After eight years of almost no oversight, after months of CIA claiming it briefed Congress when it didn’t and claiming it said things in briefings that it didn’t. Add in the trumped up intelligence, and there really is no trust in the other direction. And there is no "current system of intelligence oversight." There are the past years, and there’s this, an attempt to actually exercise oversight after the fact. Oversight, of course, that is mandated by law. Yet here you’ve got this guy, threatening to "close the book on the current system of oversight" if this "gets turned into a political circus."

Read more

Memo to WaPo: Torture Is Not Just Waterboarding

The WaPo has a weird article today–purporting to pinpoint how Nancy Pelosi first learned of waterboarding. It suggests that Michael Sheehy–a Pelosi staffer when she was briefed in September 2002, who then worked for Harman, and subsequently returned to work for Pelosi–told Pelosi about waterboarding after having been briefed on it February 5, 2003.

A top aide to  House Speaker Nancy Pelosi attended a CIA briefing in early 2003 in which it was made clear that waterboarding and other harsh techniques were being used in the interrogation of an alleged al-Qaeda operative, according to documents the CIA released to Congress on Thursday. 

[snip]

But Michael Sheehy, a top Pelosi aide, was present for a classified briefing that included  Rep. Jane Harman (D-Calif.), then the ranking minority member of the House intelligence committee, at which agency officials discussed the use of waterboarding on terrorism suspect Abu Zubaida. 

But the claim–that the documents the CIA released to Congress makes it clear that Sheehy was briefed on waterboarding in February 2003–is totally false. The briefing list, after all, does not specify that the briefing covered waterboarding at all. 

Discussion of detainee interrogation program/techniques.

Existence of AZ tapes briefed and that the tapes to be destroyed as soon as IG completed his report.

It was also discussed that interrogation methods were similar to those taught/used in SERE training.

So if the WaPo is sure the briefing covered waterboarding–as opposed to just torture generally–then it didn’t learn that from the CIA briefing list. To make the claim, the WaPo points to the details of the Roberts/Rockefeller briefing that Rockefeller didn’t attend (though the WaPo doesn’t tell its readers that Rockefeller didn’t attend), claiming with no proof that the briefings were the same.

Five months after the Pelosi-Goss meeting, in briefings for the new leaders of the Senate intelligence committee, the CIA "described in considerable detail . . . how the water board was used," according to the documents released Thursday.

Mind you, I’m not disputing that the Goss/Harman briefing covered waterboarding–I’ve always assumed it did until I saw this list. But the list does not specify that waterboarding was discussed, as it does elsewhere, and the Senate briefing is not dispositive of what went on in the House briefing, so this can’t be where the WaPo got this claim from.

Which is one reason I find it notable that the WaPo interviewed Jane Harman for this interview–and it suggests that Harman said she was told the torture videos depicted waterboarding.

Harman was surprised at what she learned, particularly that intelligence officials had video of the waterboarding of Abu Zubaida and were planning on destroying it.

Harman said in an interview that she "did not recall" discussing the issue with Pelosi.

Read more

OLC Restores 4th Amendment after Hounding from Congress

 

In her post on Steven Bradbury’s October 6, 2008 OLC opinion withdrawing the October 23, 2001 OLC memo eviscerating the 4th Amendment, Christy asks some important questions.

In fact, it reads like a thinly veiled, but ever-so-politely worded, call of “bullshit.”

It’s laugh out loud funny.  Or would be if it weren’t for the fact that it took more than 7 years to issue it — during which time the government was still operating under the craptastic legal assumptions, one presumes.

Why was this kept hidden?

I’ve got a pretty good answer why Bradbury’s opinion was kept hidden.

In the exchange between DiFI and Michael Mukasey above–which took place on April 10, 2008–Mukasey equivocated, badly, about whether or not that October 23, 2001 opinion remained in force.

DiFi: Is this memo in force? That the Fourth Amendment does not apply in domestic military.

Mukasey: The principle that the Fourth Amendment does not apply in wartime is not in force.

DiFi: No. The principle that I asked you about? Does it apply to domestic military operations? Is the Fourth Amendment, today, applicable to domestic military operations?

Mukasey: [unclear] don’t know of domestic military operations being carried out today.

DiFi: I’m asking you a question. That’s not the answer. The question is, does it apply?

Mukasey: I’m unaware of any domestic military operations being carried out today.

[back and forth]

Mukasey:  The Fourth Amendment applies across the board regardless of whether we’re in wartime or in peacetime.

[snip]

Mukasey: In my understanding it is not operative.

Well, it turns out it took another six months for Bradbury to withdraw the opinion.

Given Mukasey’s equivocations, I’d say there’s a very good reason they hid the memo (and, by association, the evidence that it had not been withdrawn when Mukasey equivocated wildly). I’d also suggest that, Mukasey knew well of a domestic military operation–DOD’s NSA wiretapping Americans domestically–that was ongoing at the time. And which, until the passage of the FISA Amendment Act, may well have been relying on Yoo’s October 2001 memo for legal cover.