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Trump Refuses to Keep This Country Safe from Terrorism

I thought a lot about two things over the weekend.

I thought about the line that disqualifies an otherwise excellent book on left wing terrorism in the 1970s, Days of Rage: “With the possible exception of the Ku Klux Klan,” author Bryan Burrough claimed close to the beginning of the book, “the United States until 1970 had never spawned any kind of true underground movement committed to terrorist acts.” The book, which spends a lot of time talking about left wing political violence in significant part stemmed out of a concern for the rights of African Americans, utterly dismissed (perhaps because it was so widely accepted it could barely be called “underground”?) America’s most persistent terrorist movement as such. The line has haunted me ever since as an example of the kind of blindness even experts have about the centrality of right wing terrorism in American history.

I thought, too, about Charlie Savage’s description in Power Wars of how Scott Brown’s team claimed that his polling showed he won the 2010 special election to replace Ted Kennedy chiefly because of perceptions of how Obama responded to Umar Farouk Abdulmutallab’s failed Christmas Eve bombing, because Brown attacked Obama for wanting to give terrorists due process. Once Republicans learned that, they doubled down, encouraging voters to become more afraid.

In a question-and-answer period following his prepared remarks, [Mitch] McConnell candidly acknowledged the political advantage of hammering away at the issue, citing Brown’s victory.

“If this approach of putting these people in U.S. courts doesn’t play in Massachusetts, I don’t know where it sells,” McConnell said, adding: “You can campaign on these issues anywhere in America.”

As Savage describes, that was when Obama started caving on his efforts to adopt a more reasonable approach to terrorism, first reversing Eric Holder’s decision to try the 9/11 defendants in NYC, then launching an 18-month campaign to drone kill Anwar al-Awlaki, and ultimately failing to close Gitmo or hold torturers to account.

Now, as Savage tells it, all that arose solely out of the Abdulmutallab case. He barely covered an event that preceded it, one where Republicans very much set up the Brown lines: when Pete Hoekstra leaked information obtained via FISA collection showing that Nidal Hasan had had communications with Awlaki before his attack on Fort Hood, using it to suggest the Obama Administration should have prevented the Fort Hood attack by adequately analyzing collected communications. Republican efforts to exact a cost from Obama for a more reasonable approach to terrorism (which included demanding that Obama call Hasan’s attack on a military target, terrorism) actually preceded the Abdulmutallab attack, and it was far more deliberate than made out.

The point is, though, that it had the short term desired effect of breaking the Democratic super majority in the Senate and the longer term effect of making Obama reactive on terrorism, rather than proactive (even through the time, in 2013, when Massachusetts was successfully attacked at the Boston Marathon and polls showed people actually didn’t want any more limits on civil liberties). Republicans deliberately and successfully forced a president who wanted to be something other than a War on Terror President to instead be just that.

And now, 8 years after Mitch McConnell gleefully said Republicans should run on hard nose accountability for terrorist attacks everywhere, Republicans are whining that Democrats are treating Trump’s actions in advance of and in the wake of serial right wing terrorist attacks last week as a political issue.

In the wake of last week’s terrorist attacks, we have returned to a discussion we always have after such things, why we call Islamic terrorism terror, but call the targeting of black churches and Jewish synagogues hate crimes and the attempted assassination of Democratic figures bomb attacks. Popehat wrote a worthy lawsplainer, from the viewpoint of a former prosecutor, why domestic terrorists don’t get (immediately) labeled as terrorist attacks. 9/11 Commission staffer Daniel Byman acknowledged that while we don’t have the same legal structure for pursuing domestic terrorist as we do terrorism with a foreign nexus, for the Pittsburgh case, at least, we should probably use the T-word.

I’ve talked about why it is important to call domestic terrorism terrorism here: First, because not doing so results in an equal protection problem, where Muslims are more likely to be targeted in a sting because the FBI has greater access to the communications of still-innocent people with suspect people overseas. And, because calling something terrorism conceives of the possibility of a supporting network, and investigating that network might prevent deaths, such as those perpetrated by the networks of Eric Rudolph or Kevin Harpham.

But the government may not call these acts terrorism. That’s true, in part, because DOJ has invented a separate category to criminalize (impose the death penalty on) hateful motives with hate crimes designation. In addition, Jeff Sessions’ DOJ has adopted a deliberate policy of record-keeping to try to claim that the greatest threats come from outside the country, which is paralleled by their thus far unsuccessful attempt to brand the (US-born) MS-13 gang both as a threat sourced from Central American and as a threat to rival ISIS.

Trump’s effort to brand a group of refugees 1,000 miles from the border as a more urgent threat to the country than corruption or climate change or domestic gun violence — an effort which likely had a tie to both Cesar Sayoc’s terrorist attempt and Robert Bowers’ mass killing — is more of the same, an effort to claim that the most critical threats are foreign and anything he deems a threat is therefore un-American, also foreign.

Ultimately, the reason why the government won’t call last week’s attacks terrorism, however, is precisely the reason they should. Call them terror attacks, and the networks of support and enablers get investigated rather than just isolated men treated as lone wolves. Call them terror attacks, and we start to ask what responsibility Lou Dobbs or Steve King or Chris Farrell (or the people who vote for and fund them) — or Donald Trump — have for the attacks, in the same way we held Anwar al-Awlaki responsible for his role in the terrorist attacks that Scott Brown exploited to get elected.

Byman describes correctly how contentious this can be, because those espousing the same policies as terrorists don’t want to be associated with those terrorist acts.

[D]omestic terrorism often has a bigger political impact than jihadi violence. A foreign-based attack brings America together in the face of tragedy. But right-wing (and left-wing) violence is more likely to divide the country. Just this week, for example, 56-year-old Cesar Sayoc reportedly sent explosive packages to CNN, Democratic politicians, and others seen as “enemies” of Trump. Some right-wing voices immediately embraced conspiracy theories rather than recognizing his activities for what it was. Domestic terrorists poke at bigger political wounds than do jihadis, with at least some Americans sympathizing with their cause even as they reject their violent means.

In turn, observers often avoid the word “terrorism” because peaceful proponents of right-wing and left-wing causes don’t want to be lumped together, even by weak association, with terrorists. We can and should recognize that most political groups of all stripes abhor violence. Doing so—while also acknowledging that the groups and individuals who don’t belong in a separate category—will better enable the United States to isolate extremists and cut them off before the next tragedy.

Which is why this post bears the headline, “Trump refuses to keep this country safe from terrorism” rather than Trump fosters terrorism, even if I believe the latter to be the case.

Because until the time those willing to coddle Trump’s racism in the name of tribal loyalty are defeated politically, they will want to pitch questions about what to label Cesar Sayoc and Robert Bowers’ actions as an attack on themselves.

Instead, let’s make it an attack on Donald Trump’s basic competence as President, one the Republicans themselves, from top to bottom, have embraced.

It is the Republican party of Karl Rove and Mitch McConnell and Scott Brown and (Trump Ambassador to the Netherlands) Pete Hoekstra that says a President who won’t keep the country safe from terrorism must be defeated politically. Me, I’d rather deal with all this domestic terrorism by first closely tracking those accused of domestic violence (which would have the effect of preventing non-ideological mass killings along with the ideological mass killings and attempts) and by noting that under George W Bush and Obama, the FBI was actually pretty good at discovering right wing terrorism without the tools they have against Islamic terrorism. I’d rather Democrats run on the fear of losing health insurance or the impact of climate change or gun violence generally.

But not Republicans. Republicans believe that a President who refuses to take a very aggressive approach to terrorism should not be President. So for those Republicans, let’s make this an issue not of the ways Trump’s network fostered actions like we saw last week, but how Trump’s Administration has chosen not to combat terrorism.

Some Cover-Ups Are More Equal Than Other Cover-Ups

Over at TNR, I’ve got a piece that mocks how former top spooks and officials pretend the partisanship of HPSCI is anything new.

On Monday, Republicans on the House Intelligence Committee released what it claimed to be a summary of its investigation into Russia’s role in the election. Among its conclusions, it disagreed with the intelligence community’s 2017 assessment that Vladimir Putin and the Russian government “developed a clear preference” for candidate Trump.

The summary, presumably drafted by aides of Trump transition official and committee Chairman Devin Nunes, disputed that assessment even in the face of the recent indictment of Russian internet trolls, which laid out how they set up anti-Hillary and pro-Trump campaign rallies. The indictment also showed how their social media activity pursued the same anti-Hillary, pro-Trump line, launching hashtags like #TrumpTrain and #Hillary4Prison, the Twitter account March for Trump, and the Facebook accounts Clinton FRAUDation and Trumpsters United.

Even some Republicans on the committee have delicately distanced themselves from the report. Trey Gowdy of South Carolina affirmed that Russia was “motivated in whole or in part by a desire to harm [Hillary Clinton’s] candidacy or undermine her Presidency had she prevailed.” Florida’s Tom Rooney, like Gowdy retiring after this term, said, “I absolutely think there was evidence they were trying to help Trump at some points.”

The report also garnered criticism from former spooks and top officials. John McLaughlin, CIA’s deputy director during the first years of the George W. Bush administration, complained on Twitter about the partisan nature of the stunt.

As a subject or observer of Cong oversight of intell for 40 years, I’ve never seen a party drive a stake thru the process as House Reps just did. It depends on a bi-partisan approach that at least gives the minority a voice. Take that away and the thing dies. It just did.

So did Obama-era Attorney General Eric Holder:

Republican House Intell Comm shut down Russia probe before doing a complete job This is a coverup and a lasting stain on the reputation of what used to be a bipartisan Committee when it was run by Republican Rogers and Democrat Ruppersberger. Politics beat a desire for the truth

Only, McLaughlin has seen such partisanship in congressional oversight before—when he benefited from it. In 2003, after Republicans regained the majority in the Senate, Senate Intelligence Committee Chair Pat Roberts agreed with the CIA to shut down initial efforts by his Democratic predecessor, Bob Graham, to oversee Bush’s torture program. The CIA memorandum of his briefing recorded, “[T]he Senator interjected that he saw no reason for the Committee to pursue such a request and could think of ‘ten reasons right off why it is a terrible idea’ for the Committee to do any such thing,” like observing interrogation as practiced in person. In the same period, Jane Harmon, then the ranking member of House Intelligence Committee, asked the CIA general counsel, “Have enhanced techniques been authorized and approved by the president?” In response, he gave her an evasive answer.

If partisanship drives a stake through effective oversight of the intelligence community, then the efforts to bypass Democratic concerns about torture killed that vampire long ago.

Furthermore, for much of the period that Holder is describing, between 2011 and 2015, Republicans were obsessed with turning the tragedy of the Benghazi assault into a circus. The House Intelligence Committee did its own report on the incident, replete with “additional views” from Rogers offering a sharper attack on the Obama administration, especially Susan Rice. Democrats were left offering “minority views” from Ruppersberger reminding lawmakers that blame for the attack should lie with the attackers.

I realize, of course, I left something out: that Holder was part of the cover-up himself.

In any case, I otherwise thought it a useful piece.

Trump FBI Nominee Christopher Wray Gave Inappropriate Briefings to John Ashcroft During Plame Investigation

Donald Trump has tweeted that he will nominate Christopher Wray, who worked in Bush’s DOJ, to head the FBI.

While most people are noting that Wray is Chris Christie’s personal lawyer in Bridgegate, I’m at least as interested in some of the things he did while at DOJ, as Assistant Attorney General for the Criminal Division.

Wray was on the border of a lot of torture decisions in 2004 — the ACLU database of torture documents is full of entirely redacted documents involving him.

Wray was involved in one of the noted field trips to Gitmo to watch torture.

And he also charged David Passaro, the only CIA person (Passaro was a contractor training Afghans to be paramilitaries) ever charged for torture. DOJ seized a bunch of documents Passaro had which would have shown that CIA’s chain of command had approved torture. Whatever you think of Passaro, I strongly believe he was denied due process in a number of ways.

To Wray’s credit, he was the first to review Stellar Wind data for information that might need to be disclosed as discovery to defendants.

While Assistant Attorney General for the Criminal Division, Wray was involved in negotiations with lawyers for Chiquita (including Eric Holder) that resulted in Chiquita’s executives avoiding all penalties for materially supporting Colombian terrorists.

Finally and probably most importantly, also while AAG DOJ in the early days of the Plame investigation, Wray provided inappropriate briefings to John Ashcroft about what Ashcroft’s buddies had said during FBI interviews.

Among other things, the sources said, Ashcroft was provided extensive details of an FBI interview of Karl Rove, President George W. Bush’s chief political advisor. The two men have enjoyed a close relationship ever since Rove advised the Attorney General during the course of three of Ashcroft’s political campaigns.

The briefings for Ashcroft were conducted by Christopher Wray, a political appointee in charge of the Justice Department’s criminal division, and John Dion, a 30-year career prosecutor who was in charge of the investigation at the time. Neither Wray nor Dion returned phone calls seeking comment for this story.

The briefings raise questions about the appropriateness of Ashcroft’s involvement in the investigation, especially given his longstanding ties to Rove. Senior federal law-enforcement officials have expressed serious concerns among themselves that Ashcroft spent months overseeing the probe and receiving regular briefings regarding a criminal investigation in which the stakes were so high for the Attorney General’s personal friends, political allies, and political party. One told me, “Attorneys General and U.S. Attorneys in the past traditionally recused for far less than this.”

This is what led to Ashcroft’s recusal and the appointment, by Deputy Attorney General Jim Comey, of Patrick Fitzgerald as special counsel.

In short, it seems Wray is likely to ensure that highers up never see any consequences for their actions. And he sure seems likely to keep Trump in the loop on the investigation of Trump.

Update: Jack Goldsmith, who of course worked closely with Wray while at DOJ, thinks he is a “a good choice, a much better choice than any name I previously saw floated, and a much better choice than I expected Trump to make,” though notes there will be a “probing confirmation process” ahead.

Update: Here’s a hearing in which Wray got questioned about inappropriate briefings. h/t NW

Update: LOLOL. DOJ released a list of endorsements for Wray, about which I’ll have more to say. But they included an endorsement from the guy who made Wray give him inappropriate briefings.

“Chris Wray is a man of integrity with a deep commitment to the rule of law. His substantial experience, particularly in serving on our Justice Department team fighting terrorism after 9/11, uniquely qualifies him to protect America as FBI Director.”
–Former Attorney General John Ashcroft

Robert Eatinger Brags that CIA Complies with Law Passed 2 Years Ago — But Will It Really Limit CIA?

Robert Eatinger — the former CIA lawyer deeply implicated in torture who referred the authors of the Senate Intelligence Committee report on torture to DOJ for criminal investigation — has a curious column in The Cipher Brief. Eatinger purports to rebut commentators who have described “Executive Order 12333 as a sort of mysterious, open-ended authorization for U.S. intelligence agencies to engage in secret, questionable activities.” But mostly he addresses the Agency’s new Attorney General Guidelines under EO 12333 approved by Loretta Lynch on January 17.

Eatinger doesn’t explain what led to the adoption of new procedures. He does at least admit that the CIA had been operating on procedures written in 1982, a year after EO 12333 mandated such procedures. He also admits that those procedures did not reflect, “advances in collection methods due to changes in technology and privacy interests unforeseen in 1982, which did not contemplate the ubiquitous use of mobile phones, computers, and other digital media devices or evolving views of privacy and thus did not seek to address ‘big data’ or ‘bulk’ collection.” But readers who didn’t know better might conclude from Eatinger’s piece that the CIA just decided out of the blue to start protecting Americans’ privacy.

The proximate change to the procedures was likely a desire to finally expand data sharing under Obama’s new EO 12333 sharing rules, a final step before accessing a firehose of data from the NSA (curiously, Eatinger doesn’t mention that these new procedures will probably enable the expanded intake of vast amounts of bulk data including US person information). It also (as I’ll explain) belatedly responds to a mandate from Congress.

But in reality, the change comes in response to over three years of nagging from the Privacy and Civil Liberties Oversight Board, which asked James Clapper and Eric Holder to make agencies update these procedures back in August 2013, pointing out how much technology had changed in the interim. Which is another way of saying that, for the entire time when Eatinger was a top CIA lawyer, CIA was perfectly happy to operate on 35-year old procedures not reflecting current technology.

Among the procedures limiting CIA’s (newly expanded) access to bulk data, Eatinger highlights the five year restriction on retention of information including US person data.

These sections also satisfy the requirements to create procedures that limit to five years the retention of any nonpublic telephone or electronic communication acquired without the consent of a person who is a party to the communication except in defined circumstances (Section 309).

[snip]

Section 6 creates two different types of handling requirements for unevaluated information; one for “routine” handling and one for “exceptional” handling.  Exceptional handling requirements apply to intelligence collections either of nonpublic communications that were acquired without the consent of a party to the communication, or that are anticipated to contain U.S. person identifying information that is significant in volume, proportion, or sensitivity.  The exceptional requirements include segregating the unevaluated information, limiting access to CIA employees who receive special training, creating an auditable record of activity, and importantly, requiring such information to be destroyed no later than five years after collection, permitting extensions in limited circumstances.

The five-year limit in Section 6 is but one example of how specifics in the new procedures attempt to find the right balance of intelligence and privacy interests.  Each procedure involves an effort to find the right tradeoffs to allow lawful intelligence collection and protect privacy and civil liberty rights and interests. The tradeoff was between the risk to a loss in intelligence capabilities by destroying information at five years against the risk to compromising privacy interests by keeping the information longer.

It’s not until nine paragraphs after Eatinger introduces this requirement, which he notes arises from “Section 309” in paragraph 8, that he explains where it comes from in paragraph 17, from Congress.

The five-year retention period in Section 6 was not set by the CIA, DNI, or Attorney General, however, it was set by Congress through Section 309.

Eatinger doesn’t describe when Congress passed that law, but I will. It was in the Intelligence Authorization for FY 2015. It became law on December 19, 2014.

Which is another way of saying that for over two years after Congress passed this law mandating the destruction of bulk data including US person data after five years, CIA hadn’t updated its EO 12333 procedures to reflect that requirement (this was after Eatinger left CIA, so we can’t blame him for the tardiness).

Now, Eatinger helpfully confirms something I’ve long believed but hadn’t confirmed: rather than sorting through and deleting the US person data in the collection, which would be all the law requires, the CIA instead destroys the entire data set at the five year interval, effectively extending the privacy protections passed to cover US persons to foreigners as well (you’re welcome, Europe). Eatinger does so in a passage laying out the trade-offs to deleting data after five years.

Deleting all unevaluated information specifically concerning U.S. persons has little to no intelligence downside because intelligence agencies will never want or have reason to search their intelligence holdings.  The five-year period to destroy all unevaluated information, however, will remove not only information concerning U.S. persons but also any information potentially concerning valid intelligence targets, such as international terrorists, from the intelligence agencies holdings.  In this latter case, however, intelligence agencies will want and may have a reason to search its holdings for information on these targets.  The deletion of that information could thus have an adverse intelligence impact, particularly on counterterrorism and counterproliferation intelligence reporting, as well as on the conduct of human intelligence operations, all of which are important activities of the CIA.

The CIA could be expected to search all of its holdings upon receiving intelligence identifying a previous unknown person as a suspected terrorist or proliferator.  Under the five-year retention period, when the CIA conducts the search, any unevaluated information on that person that may have been acquired during a bulk collection activity over five years ago will have been deleted; CIA’s search will not retrieve that information.  Thus, CIA might gain an incomplete or misleading understanding of the individual, his place in a terrorist network, and his contacts.  Or, CIA may send intelligence officers to conduct dangerous human intelligence operations to collect information it once had.  The loss of five-year old information could also adversely impact the spotting, assessing, recruiting, and running of human sources. [my emphasis]

This is how Eatinger introduces Congress’ role in requiring CIA to destroy data after five years: to blame them for limiting the CIA’s ability to sit on bulk data on Americans and foreigners for 25 years. To his credit, Eatinger does describe Congress as “the right body” to “impose” a “single retention period … on the entire intelligence community.” Given his direct attacks on Congressional oversight of the torture program, though, I wonder precisely in what spirit he intended this comment.

In any case, Eatinger also emphasizes that CIA doesn’t have to abide by this “single retention period …  imposed on the entire intelligence community.” After suggesting that some agencies might be able to abide by the Congressional mandate, he asserts unnamed other agencies may not be able to.

Some intelligence entities likely could accomplish their mission and destroy unevaluated information in less than five years.  Others may need to retain information longer than five years.

He then notes that Congress has given agencies an out.

Congress has provided that intelligence agency heads may retain information longer than five years if the head determines a longer retention “is necessary to protect the national security of the United States” and certifies in writing to the intelligence committees the reasons for that determination, the new retention period, the particular information to be retained; and the measures that will be taken to protect the privacy interests of U.S. persons and persons located inside the United States.

That out is laid out in CIA’s procedures at 6.2.2.2, but rather than stating the intelligence committees must get notice, the section says only that, “Upon such extension, the [CIA Director] shall complete any notifications required by statute, Executive Order, or other Presidential decree” which, given the way the Bush Administration ignored FISA based on Presidential decree, doesn’t inspire confidence that Congress would get the notice mandated under Section 309.

In any case, we have reason to believe the CIA is just one month into receiving an expanded firehose of data, including a great deal of data on Americans. And Eatinger sure seems to suggest the CIA may never give the data obtained via that firehose up.

As Part of Confirmation Process, Loretta Lynch Suggested DOJ Didn’t Have Enough Evidence to Prosecute HSBC

The WSJ has a story reporting what we long pretty much knew: DOJ decided not to prosecute HSBC for helping drug kingpins (this report, like most others and like DOJ’s settlement itself, forgets to mention HSBC also materially supported terrorism) because doing so might create global financial havoc.

U.S. Justice Department officials overruled their prosecutors’ recommendation to pursue criminal charges against  HSBC Holdings PLC over money-laundering failings, according to a House committee report prepared by Republicans that sheds new light on the bank’s 2012 settlement.

The report, which was reviewed by The Wall Street Journal and prepared by the Republican staff of the Financial Services Committee, concluded that former Attorney General Eric Holder overruled the internal recommendation and subsequently misled Congress about the Justice Department’s decision not to prosecute the U.K. bank.

“Rather than lacking adequate evidence to prove HSBC’s criminal conduct, internal Treasury documents show that DOJ leadership declined to pursue [the] recommendation to prosecute HSBC because senior DOJ leaders were concerned that prosecuting the bank ‘could result in a global financial disaster,’ ” the 282-page report stated.

[snip]

Holder later said those comments were misconstrued and that the Justice Department doesn’t believe any institution is too large to face legal punishment. “If we find a bank or a financial institution that has done something wrong, if we can prove it beyond a reasonable doubt, those cases will be brought,” Mr. Holder said at a 2013 House hearing.

The report, which was expected to be released Monday, concluded those comments were misleading because lower-level prosecutors had recommended the department prosecute HSBC, according to Treasury Department emails subpoenaed by the committee.

The report blames Eric Holder for the decision, not Loretta Lynch, who oversaw the case as US Attorney. Indeed, her name doesn’t appear in the WSJ story at all.

But given the claim that line prosecutors believed they had plenty of evidence to charge HSBC, consider how Lynch answered a question about the topic during her confirmation process.

38. As United States Attorney for the Eastern District of New York, you helped secure nearly $2 billion from HSBC over its failure to establish proper procedures to prevent money laundering by drug cartels and terrorists. You were quoted in a DOJ press release saying, “HSBC’s blatant failure to implement proper anti-money laundering controls facilitated the laundering of at least $881 million in drug proceeds through the U.S. financial system.”

You stated that the bank’s “willful flouting of U.S. sanctions laws and regulations resulted in the processing of hundreds of millions of dollars in [Office of Foreign Assets Control]-prohibited transactions.” Still, no criminal penalties have been assessed for any executive who may have been involved.

a. Did you make any decision or recommendation on charging any individual with a crime?

i. If so, please describe any and all decisions or recommendations you made.

ii. Please explain why such decisions or recommendations were made.

b. If you did not make any decision or recommendation on charging any individual with a crime, who made the decision not to prosecute?

RESPONSE: On December 11, 2012, the Department filed an information charging HSBC Bank USA with violations of the Bank Secrecy Act and HSBC Holdings with violating U.S. economic sanctions (the two entities are collectively referred to as “HSBC”). Pursuant to a deferred prosecution agreement (“DPA”), HSBC admitted its wrongdoing, agreed to forfeit $1.256 billion, and agreed to implement significant remedial measures, including, among other things, to follow the highest global anti-money laundering standards in all jurisdictions in which it operates. As the United States District Judge who approved the deferred prosecution found, “the DPA imposes upon HSBC significant, and in some respect extraordinary, measures” and the “decision to approve the DPA is easy, for it accomplishes a great deal.” Although grand jury secrecy rules prevent me from discussing the facts involving any individual or entity against whom we decided not to bring criminal charges, as I do in all cases in which I am involved, I and the dedicated career prosecutors handling the investigation carefully considered whether there was sufficient admissible evidence to prosecute an individual and whether such a prosecution otherwise would have been consistent with the principles of federal prosecution contained in the United States Attorney’s Manual.

I want to reiterate, particularly in the context of recent media reports regarding the release of HSBC files pertaining to its tax clients, that the Deferred Prosecution Agreement reached with HSBC addresses only the charges filed in the criminal violations of the Bank Secrecy Act for failures to maintain an adequate anti-money laundering program and for sanctions violations. The DPA explicitly does not provide any protection against prosecution for conduct beyond what was described in the Statement of Facts. Furthermore, I should note the DPA explicitly mentions that the agreement does not bind the Department’s Tax Division, nor the Fraud Section of the Criminal Division. information, which are limited to violations of the Bank Secrecy Act for failures to maintain an adequate anti-money laundering program and for sanctions violations. The DPA explicitly does not provide any protection against prosecution for conduct beyond what was described in the Statement of Facts. Furthermore, I should note the DPA explicitly mentions that the agreement does not bind the Department’s Tax Division, nor the Fraud Section of the Criminal Division. [my emphasis]

To be fair to Lynch, hers was basically a non-answer. She said she and career prosecutors review the evidence. She implied that there was insufficient admissible evidence to prosecute, but did not say it.

But if the WSJ report is correct (and we should find out soon enough) in fact at least her prosecutors recommended prosecuting.

Hillary’s National Security Alliance for Quivering Over Bank Prosecutions

Fresh off being caught lying about rolling her eyes in response to calls for Palestinian rights, Neera Tanden has rolled out something called the National Security Leadership Alliance. Best as I can tell, it exists mainly on paper right now — I couldn’t even find it on CAP’s site yet. But it seems designed to fear-monger about what will happen if Trump becomes Commander-in-Chief.

The project, called the National Security Leadership Alliance, will be funded by C.A.P. Action. It will feature a roster of major members of the foreign policy and national security community, including two retired four-star generals; Leon E. Panetta, the former C.I.A. director; Madeleine K. Albright, the former secretary of state; Eric H. Holder Jr., the former attorney general; and Carl Levin, the former Michigan senator. All have endorsed Mrs. Clinton.

There will be an effort to highlight precisely what, in the military arsenal, Donald J. Trump would have access to as president. Mr. Trump has been criticized for his views on foreign policy, criticisms that have been central to the case that Mrs. Clinton has made against him in an effort to describe the stakes of the 2016 presidential election. The Center for American Progress is led by a top outside adviser to Mrs. Clinton, Neera Tanden, and the new project seeks to put a spotlight on what officials are calling a progressive foreign policy vision.

I’m perfectly okay with fearmongering about Trump. But let’s look at this lineup. It features the woman who said letting half a million Iraqi children die was worth the price of enforcing sanctions against the country. It also includes a guy, Panetta, whose exposure of the identities of Osama bin Laden killers’ to Hollywood producers serves to reinforce what a double standard on classified information Hillary (and Panetta) benefit from.

But I’m most curious by a “national security” team that includes both Eric Holder and Carl Levin, especially given the NYT focus, in announcing the venture, on Brexit.

“I think what brought us together is obviously a lot of concern about some of the division and polarization that we’re seeing in the world,” Mr. Panetta said in an interview. “We know we’re living in a time of great change and uncertainty.”

But he added, “The concern we have is we see these forces of division that are prepared to throw out the fundamental” principles of foreign policy in the United States over many decades.

“What we’re learning from ‘Brexit’ is that there’s a price to be paid in terms of letting out emotion dictate policy instead of responsible leadership,” he said, referring to Britain’s vote to leave the European Union. “We shouldn’t throw the baby out with the bath water.”

Leon Panetta, in rolling out a venture including Carl Levin — who as head of the Senate’s Permanent Subcommittee on Investigations worked tirelessly for some kind of accountability on bank crime — and Eric Holder — who ignored multiple criminal referrals from Levin, including one pertaining to Goldman Sachs head Lloyd Blankfein — says the lesson from Brexit is that we can’t let emotion dictate policy but instead should practice “responsible leadership” guarding the “fundamental principles of foreign policy in the United States over many decades.”

Of course, as David Dayen argued convincingly, to the extent Brexit was an emotional vote, the emotions were largely inflamed by elite failures — the failures of people like Eric Holder to demand any responsibility (Dayen doesn’t deal with the equally large failures of hawks like Albright whose destabilizing policies in the Middle East have created the refugee crisis in Europe, which indirectly inflamed Brexit voters).

Again, I’m okay if Hillary wants to spend her time fearmongering about the dangers of Trump.

But to do so credibly, she needs to be a lot more cognizant of the dangers her own team have created.

Former Top Holder Aide Says Back Door Searches Violate Fourth Amendment; FISC Judge Thomas Hogan Doesn’t Care

My apologies to Amy Jeffress.

When I first realized that FISA Court Presiding Judge Thomas Hogan picked her to serve as amicus for the review of the yearly 702 certifications last year, I complained that she, not Marc Zwillinger, got selected (the pick was made in August, but Jeffress would later be picked as one of the standing amicus curiae, along with Zwillinger). After all, Zwillinger has already argued that PRISM (then authorized by Protect America Act) was unconstitutional when he represented Yahoo in its challenge of the program. He’s got experience making this precise argument. Plus, Jeffress not only is a long-time national security prosecutor and former top Eric Holder aide, but she has been involved in some actions designed to protect the Executive. I still think Zwillinger might have done a better job. But Jeffress nevertheless made what appears to be a vigorous, though unsuccessful, argument that FBI’s back door searches of US person data are unconstitutional.

A former top DOJ lawyer believes FBI’s back door queries are unconstitutional

But it says a lot that Jeffress — someone who narrowly missed being picked as Assistant Attorney General for National Security and who presumably got at least some visibility on back door searches when working with Holder — argued that FBI’s warrantless back door searches of communications collected under Section 702 is unconstitutional. (I presume it would be unethical for Jeffress to use information learned while counseling Holder in this proceeding, which might have put her in an interesting position of knowing more than she could say.)

Sadly, Hogan didn’t care. Worse, his argument for not caring doesn’t make sense. As I’ll note, not only did Hogan pick a less than optimal person to make this argument, but he may have narrowly scoped her input, which may have prevented her from raising evidence in Hogan’s own opinion that his legal conclusion was problematic.

To be clear, Jeffress was no flaming hippie. She found no problem with the NSA and CIA practice of back door searches, concluding, “that the NSA and CIA minimization procedures are sufficient to ensure that the use of U.S. person identifiers for th[e] purpose of [querying Section 702-acquired information] complies with the statutory requirements of Section 702 and with the Fourth Amendment.” But she did find the FBI practice problematic.

Jeffress’ amicus brief included at least 10 pages of discussion of her concerns with the practice, though ODNI did not release her brief and Hogan cited very limited bits of it. She argued, “the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes” and said because the queries could do so they “go far beyond the purpose for which the Section 702-acquired information is collected in permitting queries that are unrelated to national security.”

To dismiss Jeffress’ arguments, Hogan does several things. He,

  • Notes the statute requires foreign intelligence just be “a significant purpose” of the collection, and points back to the 2002 In Re Sealed Case FISCR decision interpreting the “significant purpose” language added in the PATRIOT Act to permit the use of traditional FISA information for prosecutions
  • Cites the FISA minimization procedure language that “allow[s] for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed”
  • Dismisses a former top DOJ official’s concerns about the use of FISA data for non-national security crimes as “hypothetical”
  • Doesn’t address — at all — language in the FBI minimization procedures that permits querying of data for assessments and other unspecified uses
  • Invests a lot of faith in FBI’s access and training requirements that later parts of his opinion undermine

There are several problems with his argument.

In Re Sealed Case ties “significant purpose” to the target of an interception

First, Hogan extends the scope of what the FISA Court of Review interpreted the term “significant purpose,” which got added to traditional FISA in the PATRIOT Act and then adopted in FISA Amendments Act.

Hogan cites the FISCR decision in In Re Sealed Case to suggest it authorized the use of information against non-targets of surveillance. He does so by putting the court’s ultimate decision after caveats it uses to modify that. “The Court of Review concluded that it would be an “anomalous reading” of the “significant purpose” language of 50 U.S.C. § 1804(a)(6)(B) to allow the use of electronic surveillance in such a case. See id. at 736. The Court nevertheless stressed, however, that “[s]o long as the government entertains a realistic option of dealing with the agent other than through criminal prosecution that it satisfies the significant purpose test.”

But that’s not what FISCR found. Here’s how that reads in the original, with Hogan’s citations emphasized.

On the one hand, Congress did not amend the definition of foreign intelligence information which, we have explained, includes evidence of foreign intelligence crimes. On the other hand, Congress accepted the dichotomy between foreign intelligence and law enforcement by adopting the significant purpose test. Nevertheless, it is our task to do our best to read the statute to honor congressional intent. The better reading, it seems to us, excludes from the purpose of gaining foreign intelligence information a sole objective of criminal prosecution. We therefore reject the government’s argument to the contrary. Yet this may not make much practical difference. Because, as the government points out, when it commences an electronic surveillance of a foreign agent, typically it will not have decided whether to prosecute the agent (whatever may be the subjective intent of the investigators or lawyers who initiate an investigation). So long as the government entertains a realistic option of dealing with the agent other than through criminal prosecution, it satisfies the significant purpose test.

The important point is–and here we agree with the government–the Patriot Act amendment, by using the word “significant,” eliminated any justification for the FISA court to balance the relative weight the government places on criminal prosecution as compared to other counterintelligence responses. If the certification of the application’s purpose articulates a broader objective than criminal prosecution–such as stopping an ongoing conspiracy–and includes other potential non-prosecutorial responses, the government meets the statutory test. Of course, if the court concluded that the government’s sole objective was merely to gain evidence of past criminal conduct–even foreign intelligence crimes–to punish the agent rather than halt ongoing espionage or terrorist activity, the application should be denied.

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

Hogan ignores three key parts of this passage. First, FISCR’s decision only envisions the use of evidence against the target of the surveillance, not against his interlocutors, to in some way neutralize him. Any US person information collected and retained under 702 is, by definition, not the targeted person (whereas he or she might be in a traditional FISA order). Furthermore, FBI’s queries of information collected under 702 will find and use information that has nothing to do with putting foreign agents in prison — that is, to “investigate wholly unrelated ordinary crimes,” which FISCR prohibited. Finally, by searching data that may be years old for evidence of a crime, FBI is, in effect, “gaining evidence of past criminal conduct” — itself prohibited by FISCR — of someone who isn’t even the target of the surveillance.

Hogan only treats querying for criminal purposes

Having, in my opinion, expanded on what FISCR authorized back in 2002, Hogan then ignores several parts of what FBI querying permits.

Here’s (some of) the language FBI added to its minimization procedures, at the suggestion of PCLOB, to finally, after 8 years, fully disclose what it was doing to the FISC.

It is a routine and encouraged practice for FBI to query databases containing lawfully acquired information, including FISA-acquired information, in furtherance of the FBI’s authorized intelligence and law enforcement activities, such as assessments, investigations and intelligence collection. Section III.D governs the conduct of such queries. Examples of such queries include, but are not limited to, queries reasonably designed to identify foreign intelligence information or evidence of a crime related to an ongoing authorized investigation or reasonably designed queries conducted by FBI personnel in making an initial decision to open an assessment concerning a threat to national security, the prevention or protection against a Federal crime, or the collection of foreign intelligence, as authorized by the Attorney General Guidelines. These examples are illustrative and neither expand nor restrict the scope of the queries authorized in the language above.

This language makes clear FBI may do back door searches for:

  • To identify foreign intelligence information
  • To identify evidence of a crime related to an ongoing investigation
  • To decide whether to open an assessment concerning a threat to national security, the prevention or protection against a Federal crime, or the collection of foreign intelligence
  • Other things, because FBI’s use of such queries “are not limited to” these uses

Given Hogan’s stingy citations from Jeffress’ brief, it’s unclear how much of these things she addressed (or whether she was permitted to introduce knowledge gained from having worked closely with Eric Holder when these back door searches were being formalized).

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Hillary’s Bold Plan to Financially Penalize Recidivist Super-Predators

The other day Hillary promised she would appoint Attorneys General like Eric Holder and Loretta Lynch. “I will appoint an Attorney General who will continue the courageous work of Eric Holder and Loretta Lynch.” Given that the comments came at an Al Sharpton event, I assumed the comment meant to invoke Holder and Lynch’s efforts to reform criminal justice and, presumably, their even more laudable support for civil rights.

Nevertheless, it was a disturbing comment, given that Holder and Lynch have also both coddled the bankers who crashed our economy. Indeed, when Hillary tries to defend her huge donations from bankers, she always points to Obama’s even huger ones, and insists that there’s no evidence he was influenced by them. But the Obama DOJ record on bank crime is itself the counter to Hillary’s claim those donations didn’t influence the President.

But then, last night, Hillary said something even more outrageous, which I take to be a solid promise to her funders they’ll continue to get special treatment before the law. Amid a comment shifting from Too Big to Fail into the serial settlements the banks have signed for their crimes, Hillary took the bold step of calling for financial penalties for the people directing that crime.

CLINTON: Dana, let me add here that there are two ways to at this under Dodd-Frank, which is after all the law we passed under President Obama, and I’m proud that Barney Frank, one of the authors, has endorsed me because what I have said continuously is, yes, sometimes the government may have to order certain actions. Sometime the government can permit the institution themselves to take those actions. That has to be the judgement of the regulators.

But, there’s another element to this. I believe strongly that executives of any of these organizations should be financially penalized if there is a settlement.

(APPLAUSE)

CLINTON: They should have to pay up through compensation or bonuses because we have to go after not just the big giant institution, we have got to go after the people who are making the decisions in the institutions.

Granted, under Holder and Lynch, those courageous Attorneys General Hillary would model her own pick on, the banksters haven’t even been asked to do this much.

But the fact that Hillary thought a great punishment for those harming the country with their serial crime wave is to fine them is a testament that she doesn’t even see the underlying crimes.

This is behavior that has continued over years, often after previous settlements. If anyone can be called a super-predator, it’s the bankers who toy with millions of people’s livelihoods and savings to make a buck. If there were a Three Strikes law for bankers most of these guys would be looking at life imprisonment.

And yet Hillary’s bold plan is not to incarcerate them, but instead to take a little bit of their money.

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).

Screen Shot 2015-11-24 at 4.32.17 PM

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.

 

The Unopened Torture Report and Trusting CIA on Other Covert Operations

Yesterday, Pat Leahy issued a Sunshine Week statement criticizing Richard Burr for attempting to reclaim all copies of the Torture Report, but also complaining that State and DOJ haven’t opened their copy of the Torture Report.

I also was appalled to learn that several of the agencies that received the full report in December have not yet opened it.  In a Freedom of Information Act (FOIA) lawsuit seeking release of the full report, Justice Department and State Department officials submitted declarations stating that their copies remain locked away in unopened, sealed envelopes.  I do not know if this was done to attempt to bolster the government’s position in the FOIA lawsuit, or to otherwise avoid Federal records laws.  I certainly hope not.  Regardless of the motivation, it was a mistake and needs to be rectified.

The executive summary of the torture report makes clear that both the State Department and the Justice Department have much to learn from the history of the CIA’s torture program.  Both agencies were misled by the CIA about the program.  Both should consider systemic changes in how they deal with covert actions.  Yet neither agency has bothered to open the final, full version of the report, or apparently even those sections most relevant to them.

Today, Ron Wyden issued a Sunshine Week release linking back to a February 3 letter Eric Holder is still ignoring.  The letter — which I wrote about here — addresses 4 things: 1) the unclear limits on the President’s ability to kill Americans outside of war zones 2) the common commercial service agreement OLC opinion that should be withdrawn 3) some action the Executive took that Wyden and Russ Feingold wrote Holder and Hillary about in late 2010 and 4) DOJ’s failure to even open the Torture Report. Wyden’s statement, lumps all these under “secret law.”

U.S. Senator Ron Wyden, D-Ore., renewed his call for Attorney General Eric Holder to answer crucial questions on everything from when the government believes it has the right to kill an American to secret interpretations of law. The Justice Department has ignored these questions or declined to answer them, in some cases for years.

[snip]

“It is never acceptable to keep the basic interpretations of U.S. law secret from the American people. It doesn’t make our country safer, and erodes the public’s confidence in the government and intelligence agencies in particular,” Wyden said. “While it is appropriate to keep sources, methods and operations secret, the law should never be a mystery. Sunshine Week is the perfect time for the Justice Department to pull back the curtains and let the light in on how our government interprets the law.”

This may be secret law.

But I find it interesting that both Wyden’s letter and Leahy’s statement tie covert operations to the lessons from the Torture Report.

There are many reasons DOJ (and FBI) are probably refusing to open the Torture Report. The most obvious — the one everyone is pointing to — is that by not opening it, these Agencies keep it safe from the snooping FOIAs of the ACLU and Jason Leopold.

But the other reason DOJ and FBI might want to keep this report sealed is what it says about the reliability of the CIA.

The CIA lied repeatedly to DOJ, FBI, and FBI Director Jim Comey (when he was Deputy Attorney General) specifically. Specifically, they lied to protect the conduct of what was structured as a covert operation, CIA breaking the law at the behest of the President.

Of course, both DOJ generally and FBI specifically continue to partner with CIA as if nothing has gone on, as if the spooks retain the credibility they had back in 2001, as if they should retain that credibility. (I’m particularly interested in the way FBI participated in the killing of Anwar al-Awlaki, perhaps relying on CIA’s claims there, too, but it goes well beyond that.)

That’s understandable, to a point. If DOJ and the FBI are going to continue pursuing (especially) terrorists with CIA, they need to be able to trust them, to trust they’re not being lied to about, potentially, everything.

Except that ignores the lesson of the Torture Report, which is that CIA will lie about anything to get DOJ to rubber stamp criminal behavior.

No wonder DOJ and FBI aren’t opening that report.