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Tasers with Wings

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I’ve been focusing on Edward Snowden’s NSA revelations, but I didn’t want this tidbit of news to go unnoticed. Among the other documents EFF has gotten in its FOIA on drones in the United States is a planning document for Customs and Border Patrol’s use of the  Predator drone. In it, there’s one line that suggests future upgrades (the report dates to 2010) might include non-lethal immobilization technology.

A Customs & Border Protection (CPB) report, released in response to EFF’s Freedom of Information Act lawsuit against the agency, shows CBP has considered adding weapons to its domestic Predator drones.

The report, titled “Concept of Operations for CBP’s Predator B Unmanned Aircraft System” and submitted to Congress on June 29, 2010 shows that, not only is the agency planning to sharply increase the number of Predator drones it flies and the amount of surveillance it conducts by 2016 (detailed further in a separate blog post tomorrow), but it has considered equipping its Predators with “non-lethal weapons designed to immobilize” targets of interest. (p. 63).

And remember: CBP loans out its drones to other Federal agencies. I suspect when Robert Mueller testified recently that FBI had used drones he had CBP ones in mind.

So the next time LAPD uses loaner drones in a manhunt across Southern California, that drone may well be armed with industrial sized tasers.

 

Shell Games: How to Keep Doing Internet Data Mining and Avoid the Courts

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As I noted, the WaPo makes it clear one of the most sensitive parts of the government’s surveillance programs is the collection of Internet metadata.

But the thing is, it doesn’t come out and explain whether and if so how it continues to go on.

This passage, written in the present tense, sure seems to suggest it continues.

MARINA and the collection tools that feed it are probably the least known of the NSA’s domestic operations, even among experts who follow the subject closely. Yet they probably capture information about more American citizens than any other, because the volume of e-mail, chats and other Internet communications far exceeds the volume of standard telephone calls.

The NSA calls Internet metadata “digital network information.” Sophisticated analysis of those records can reveal unknown associates of known terrorism suspects. Depending on the methods applied, it can also expose medical conditions, political or religious affiliations, confidential business negotiations and extramarital affairs.

What permits the former and prevents the latter is a complex set of policies that the public is not permitted to see. “You could do analyses that give you more information, but the law and procedures don’t allow that,” a senior U.S. intelligence lawyer said.

Yet buried in the last paragraphs of the story, WaPo’s sources suggest “the NSA is no longer doing it.” Or — as elaborated — doing “it” under the guise of and with the oversight of the FISA court.

As for bulk collection of Internet metadata, the question that triggered the crisis of 2004, another official said the NSA is no longer doing it. When pressed on that question, he said he was speaking only of collections under authority of the surveillance court.

“I’m not going to say we’re not collecting any Internet metadata,” he added. “We’re not using this program and these kinds of accesses to collect Internet metadata in bulk.”

I keep saying this: sources on this story are trying hard to get us to focus on a few programs managed by FBI and NSA under two particular provisions of law that happen to have (secret, limited) court oversight, Section 215 of the PATRIOT Act and the FISA Amendments Act. But that leaves out several other likely candidates to conduct such intelligence analysis, notably the NCTC. And it leaves out other potential sources of collection, such as cybersecurity in the name of self-defense.

What Does NCTC Do with NSA and FBI’s Newly Disclosed Databases?

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The discussion about the various “NSA” programs we’ve seen so far have discussed only how NSA works with FBI. FBI requests the dragnet phone information and hands it over to NSA. NSA negotiates direct access to internet companies that allow FBI to make direct queries.

We’ve heard from Keith Alexander about what NSA does — its only use of Section 215, he said, was the phone records.

We heard from Robert Mueller who gave less clear answers about what FBI does and does not do.

But we have yet to have direct testimony from James “least untruthful too cute by half” James Clapper. Mind you, we’ve gotten several fact sheets and Clapper’s hilarious interview with Andrea Mitchell. Just no specific public testimony.

And curiously, in the DNI’s own fact sheets, he doesn’t specify who does what, aside from describing the statutory role his position and the Attorney General play in authorizing FAA 702 orders. He doesn’t say what FBI does, what NSA does … or what his own organization does.

That’s important, because in addition to overseeing all intelligence, Clapper’s office also includes the National Counterterrorism Center. And the NCTC is the entity in charge sharing data. Indeed, it is statutorily required to have access to everything.

[The National Security Act] provides that “[u]nless otherwise directed by the President, the Director of National Intelligence shall have access to all national intelligence and intelligence related to the national security which is collected by any federal department, agency, or other entity, except as otherwise provided by law, or as appropriate, under guidelines agreed upon by the Attorney General and the Director of National Intelligence.

That means, presumably, that NCTC is doing a lot of the work that NSA and FBI are making narrow denials about.

But it also means that NCTC can play with these databases — the dragnet and the access via PRISM to 702 data — as well as any other data in the Federal government, including databases that John Brennan gave it the ability to go get.

So here’s the thing. When Keith Alexander gives you pat reassurances about how limited NSA’s access to Americans’ call data is, that may disclose a whole lot more intrusive data mining over at James Clapper’s shop.

Remember, here is what James Clapper was initially asked.

Wyden: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

Clapper: No, sir.

Wyden: It does not?

Clapper: Not wittingly. There are cases where they could, inadvertently perhaps, collect—but not wittingly.” [my emphasis]

His first attempt to walk back that lie went like this:

What I said was, the NSA does not voyeuristically pore through U.S. citizens’ e-mails. [my emphasis]

His second attempt to walk it back went like this:

ANDREA MITCHELL: Senator Wyden made quite a lot out of your exchange with him last March during the hearings. Can you explain what you meant when you said that there was not data collection on millions of Americans?

JAMES CLAPPER: First– as I said, I have great respect for Senator Wyden. I thought, though in retrospect, I was asked– “When are you going to start– stop beating your wife” kind of question, which is meaning not– answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful, or least untruthful manner by saying no.

And again, to go back to my metaphor. What I was thinking of is looking at the Dewey Decimal numbers– of those books in that metaphorical library– to me, collection of U.S. persons’ data would mean taking the book off the shelf and opening it up and reading it.

ANDREA MITCHELL: Taking the contents?

JAMES CLAPPER: Exactly. That’s what I meant. Now–

ANDREA MITCHELL: You did not mean archiving the telephone numbers?

All of those efforts were, by context at least, limited exclusively to NSA. They don’t address, at all, what NCTC might do with this data (or, for that matter, FBI).

So what does the NCTC do with the data that NSA and FBI have issued careful denials about?

Update: I’m going to replicate a big chunk of this post on the oversight over NCTC’s use of other agencies data, complete with the bit about how the guy in charge of it thought Cheney’s illegal program was the shit.

Back when John Negroponte appointed him to be the Director of National Intelligence’s Civil Liberties Protection Officer, Alexander Joel admitted he had no problem with Cheney’s illegal domestic wiretap program.

Read more →

The FBI’s Evidence Against the Genius Who Framed Elvis

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The Washington Post has a long article detailing how the FBI held onto their original suspect in the case of letters laced with ricin sent to various political figures long after they knew that he was innocent and had obtained evidence pointing to James Everett Dutschke, who now has been jailed for the crime. The article did a very good job of drawing the parallel of the FBI’s arrest and mistreatment of Elvis impersonator Paul Kevin Curtis in this case with the Amerithrax investigation that falsely targeted Steven Hatfill after the anthrax attacks of 2001:

After keeping Elvis impersonator Paul Kevin Curtis in jail for a week, interrogating him while he was chained to a chair and turning his house upside down, federal authorities had no confession or physical evidence tying him to the ricin-laced letters sent to President Obama and other public officials.

/snip/

“They wanted to keep Mr. Curtis in custody while they built a case,” said Hal Neilson, a former FBI agent who is Curtis’s attorney. “They knew early on he wasn’t the right guy, but they fought to hold on to him anyway.”

/snip/

Criminal justice experts say the arrest of Curtis without any physical evidence to tie him to the crime harks back to the investigation of bioweapons expert Steven J. Hatfill, who was falsely accused of the 2001 anthrax-letter attacks that killed five people. Like Curtis, Hatfill had an unpublished novel that seemed to tie him to the crime.

With Curtis, however, experts said the FBI’s leap was larger.

“Hatfill had technical qualifications and a background that also led the FBI to zero in on him, but this guy is an Elvis impersonator with an apparent history of mental instability and a Facebook page with some distinctive and curious language on it,” said Amy E. Smithson, a senior fellow with the James Martin Center for Nonproliferation Studies who studies biological weapons.

The circumstantial case against Dutschke appears quite strong on its own, given the ongoing feud he was known to have with Curtis. One bit that somewhat supports Dutshcke possibly being capable of acting on his own to produce the ricin found in the letters comes from the widespread knowledge that Dutschke is quite intelligent, although his membership in Mensa was used by Curtis as part of the ongoing feud.

But what is the nature of the evidence that is known at the current time linking Dutschke to the crime? Unlike the Georgia wanna-be ricin terrorists, where the FBI only found the criminals to be in possession of intact castor beans and an unworkable plan, the ricin in this case was actually processed somewhat. From the criminal complaint (pdf): Read more →

The “Conspiracy Theory” That Prompted Kevin Curtis’ Earlier Letters to Politicians

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Yesterday, charges against Paul Kevin Curtis that he sent letters testing positive for ricin to Senator Lowell Wicker and the White House were dropped. It is quite encouraging that the FBI would this time choose not to continue harassing Curtis once they realized they had no evidence against him, unlike their behavior in the Amerithrax case where they pursued Steven Hatfill for years (until paying out a $2.8 million dollar settlement) and drove Bruce Ivins to his grave on the basis of evidence that couldn’t withstand scrutiny.

Curtis was true to his quirky and colorful character yesterday after being released, and the New York Times reported how he explained at a subsequent press conference that he had no idea what ricin is:

Mr. Curtis, a party entertainer who dresses and sings as Elvis, Prince, Johnny Cash, Bon Jovi and others, had been in jail since Wednesday. He said he had never even heard of ricin. “I thought they said rice,” he said. “I said I don’t even eat rice.”

Curtis was already known to local officials when the tainted letters surfaced and most press coverage of his arrest provided details about why he wrote so many letters before the tainted ones emerged. From a Washington Post article on his arrest:

But a darker world apparently also existed for Curtis, according to frequent writings on social media Web sites, legal records and a lengthy trail of letters sent previously to lawmakers from Mississippi to Capitol Hill.

The man the FBI says unnerved much of official Washington this week, leaving mail handlers, staffers and aides seeing danger in any crinkled or unmarked envelope, was also a well-practiced conspiracy theorist. He wrote online that Elvis-impersonating contests had become rigged and politicized.

Many of his diatribes revolved around conspiracy theories, on which he blamed many of the malignancies in his life. The broken relationships, the financial duress, the increasing isolation he perceived — all grew out of an episode when he was working in a morgue as a contract cleaner, according to an online post on ripoffreport.com, which was signed, “I am Kevin Curtis and I approve this message.”

According to the long, detailed post, Curtis accidentally discovered bags of body parts in the morgue and reported his finding to authorities, who immediately made him a “person of interest where my every move was watched and video taped.” He described cameras zooming in on him and said he was followed by agents.

So the picture painted when he was arrested and charged was that Curtis was a disturbed person who was so crazy he believed that there is a black market in human body parts and that he was being persecuted for exposing a portion of that market. Interestingly, now that the charges against him have been dropped, the New York Times piece linked above makes no mention of the conspiracy theory while today’s Washington Post story makes only a very brief reference to it in a list of other portions of his life story:

Curtis is known for detailed Internet diatribes, his long-held conspiracy theory about underground trafficking in human body parts — which he has turned into a novel-in-progress called “Missing Pieces” — and his work as an Elvis impersonator. The Corinth, Miss., man has been arrested four times since 2000 on charges that include cyber-harassment.

Curtis’ account of discovering evidence of illegal body part trafficking stood out to me because I knew that such illegal trafficking in fact exists. A local firm here in Gainesville has been in the middle of an ugly story unfolding around the difficult legal and ethical issues relating to how tremendous advances in medical science have driven a huge demand for human tissue and bone.

Most people are quite aware of the process of organ transplantation and how organ donation either through advance planning or by surviving family members signing off on donation saves many lives. But there also are many medical procedures that rely on human bone or tissue that has been processed.

Back in July of 2012, the International Consortium of Investigative Journalists posted a long article that goes into the details of the black market for human tissue and bones and how this market is driven by the huge profits to be made: Read more →

Wondering Wednesday: Suicide in Singapore, Drone Over Brooklyn, and Telco Tattlers

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Help me get over the hump and clue me in on a few things. I’ve been scratching my head wondering about these topics.

Suicide in Singapore — The recent “suicide” of a U.S. electronics engineer in Singapore looks fishy to me. It looked not-right to Financial Times as well; it appears no other domestic news outlet picked up this case for investigative reporting before FT. The deceased, who’d worked for a government research institute on a project related to Chinese telecom equipment company Huawei, is alleged to have hung himself, but two details about this case set off my hinky meter.

•  Every photo I’ve seen of engineer Shane Todd depicts a happy chap. Sure, depressed folks can hide their emotions, but comparing a photo of his family after his death to photos of him and you’ll see the difference. My gut tells me that if he was truly depressed, he should have looked more like his folks–flat, withdrawn, low affect. Perhaps meds could have messed with his head more than depression itself. But I’m not a psychologist or a pharmacologist, what do I know?

•  Among all the details of the case, it’s said the victim’s face postmortem was white when his body was discovered. This doesn’t strike me as consistent with hanging; there should have been lividity above the ligature. Conveniently, Singapore’s law enforcement cleaned everything up so quickly there was no chance to see the crime scene or the body as found. Law enforcement also snagged the victim’s laptop and all other work-related stored content, save for a hard drive that looked like a speaker. Everything he was working on “disappeared” except for the contents of that drive.

The engineer had been very concerned about technology he was working on and its possible transfer, which included gallium nitride transistors with potential for both commercial and military applications. After poking around for some time on gallium compounds used in various computing, communications and other technology, nothing screams at me as highly sensitive technology that might get someone “suicided.” But…as I went through abstracts, it seems odd there are a substantive number of Chinese researchers working in on GaN-based technologies.

Thought these two points in particular jar my senses, more than just these two points don’t sit well. Read the story at the link above and see for yourself. (Original FT link here.)

What do you make of this case? Suicide or no? Strategic technology or no? Read more →

The Most Transparent Administration Ever Hides More OLC Opinions

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Ryan Reilly has liberated a list — such as DOJ would release — of the OLC opinions written under Obama. As he notes, DOJ has refused to even give him a list, much the number, of the classified OLC memos.

What’s more interesting is what wasn’t included: The office stated that it was withholding, in full, 11 lists of classified OLC opinions. Because the length of each list is unknown, it’s unclear how many classified opinions the OLC has issued during the Obama administration.

And it has redacted a ton of the names of unclassified opinions, citing deliberative privilege.

The titles of many OLC opinions were fully redacted in the lists provided, with a Justice Department official writing that the titles were “protected by the deliberative process, attorney-client, and/or attorney work-product privileges.” The names of the lawyers who wrote a number of opinions — including the memo on the president’s use of recess appointments during the Senate’s pro forma sessions — were also blacked out because their disclosure would “constitute a clearly unwarranted invasion of personal privacy,” the official wrote.

Some of the memos mentioned in the list have already been disclosed online by the OLC.

He also notes one memo the existence of which has already been revealed doesn’t appear on the list.

The Justice Department even redacted the title of the opinion on whether the president could unilaterally ignore the debt ceiling limit, though the existence of that memo was disclosed in response to a FOIA request from Talking Points Memo in 2011.

There’s in fact at least one other known OLC opinion that doesn’t show up on the list: a January 8, 2010 memo on whether the Electronics Communication Privacy Act would prevent telecoms from willingly turning over international communications to the government. It was first revealed in a January 2010 DOJ IG Report on Exigent Letters (see this post for background).

On January 8, 2010, the OLC issued its opinion, concluding that the ECPA “would not forbid electronic communications service providers [three lines redacted]281 In short, the OLC agreed with the FBI that under certain circumstances [~2 words redacted] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency.

In February 2011, McClatchy’s Marisa Taylor received a FOIA denial for the memo, although in denying her request DOJ revealed that this was the section of the law the memo discussed.

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

Effectively, DOJ has already made clear that the memo says it can get international communications with no legal process.

But it didn’t release the name of the memo to Reilly.

There are two explanations for that. It has redacted the names of many OLC opinions under deliberative process, which it often argues means that it did not rely on the memo and therefore it did not influence the Executive’s final decision. That’s probably what happened with the debt ceiling memo; we know Obama hasn’t unilaterally raised the debt ceiling, meaning he hasn’t relied on the memo, so even though it has confirmed the memo exists, DOJ is hiding the memo because the Administration didn’t ultimately rely on it.

It may have redacted the title of the ECPA decision for the same reason. In the IG Report, at least, FBI claimed it would not rely on the opinion (no doubt meaning it would get all our communications via some other means).

Alternately, it could be considering this memo, which has been discussed at length, classified. Stranger things have happened with this Administration.

Update: Just checked, and via email at the time, Taylor said this is what DOJ told her:

The cover letter dated Feb. 8, 2011 to McClatchy said the OLC memo was protected by the “deliberative process privilege” under Exception Five. The letter also said the memo is “classified” and therefore “exempt pursuant to Exemption One, 5 USC 552 (b)(1).” The letter goes on to describe the memo as “a January 8, 2010 OLC memorandum analyzing the authority of the FBI under Section 2511 (2)(F) of the Stored Communications Act, 18 USC 2511 (2)(f).”

So they’re at least claiming a b5, and possibly claiming that its very name remains classified, in spite of repeated references to it in unclassified form.

In any case, the refusal to release even the name of memos that we know exist sure boosts the Administration’s claim to be the most transparent ever!

Why Ask the FBI about Classification on the Targeted Killing FOIA?

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The FBI, as far as we know, never gets to press the buttons on JSOC and CIA’s drones. And as I noted last June, FBI information we know exists (some of it in unclassified form) was suspiciously absent from the materials identified in the response to ACLU’s request for information on the evidence supporting the targeting of Anwar al-Awlaki and Samir Khan.

Remember, in addition to general information about the legal authorization process, ACLU asked for:

Facts supporting a belief that al-Awlaki posed an imminent threat to the United States or United States interests;

[snip]

Facts supporting the assertion that al-Awlaki was operationally involved in al Qaeda, rather than being involved merely in propaganda activities;

[snip]

All documents and records pertaining to the factual basis for the killing of Samir Khan

DOJ probably has information pertaining to the assessment–for example–that Samir Khan could leave the US and travel to Yemen even though a long line of FBI terror investigation subjects have gotten arrested for doing the same. There’s also information submitted in the Mohamed Osman Mohamud prosecution pertaining to Khan which also probably would have received high level attention.

And we know that DOJ claims to have evidence that proves that Awlaki was operational, much of it pertaining to Umar Farouk Abdulmutallab’s attempted attack and subsequent interrogation (indeed, two of the few documents OIP says were responsive date to January and February 2010 and almost certainly pertain to the aftermath of Abdulmutallab’s attempted attack).

Yet in spite of FBI’s notable absence from the discussion of the targeted killing FOIA, Judge Colleen McMahon asked them–and not ODNI or CIA, both of which submitted declarations in this case–whether anything in her unclassified opinion was classified.

The final draft of this unclassified opinion was provided to the FBI several days ago, in order to give the Government an opportunity to object to the disclosure of any classified information that may have inadvertently found its way into this document.

The FBI?!? Why would the FBI be the entity to review this opinion, in which they have no apparent role?

Meanwhile, one of the assertions for which McMahon provides absolutely no support in her unclassified opinion is this one.

Most of what is sought in the facially overbroad request filed by the American Civil Liberties Union (“ACLU”) was properly withheld pursuant to one or more properly invoked exemptions that Congress wrote into the FOIA statute to guard against the disclosure of highly confidential and operational information–if, indeed, the Government has acknowledged that any such documents exist.

In her unclassified opinion, McMahon discusses at length why the government can withhold the (or one of the) OLC opinion on killing Awlaki we all know exists. But she says nothing about what makes a request for the evidence backing the Awlaki targeting (she says ACLU presented no evidence Khan was targeted) “facially overbroad.”

As I suggested the other day, it is perhaps judicious to assume that any big holes in McMahon’s ruling are dealt with, by necessity, in her classified Appendix. Note too that in addition to providing an overview of the ACLU request in her unclassified opinion, McMahon also includes–but doesn’t discuss at length–the ACLU’s full request as an Appendix itself.

All of which is my way of suggesting that one thing in McMahon’s classified Appendix is almost certainly a discussion of why the American people are not allowed to know what the government knows–or claims to know–about Awlaki’s ties to terrorism. And that, as part of her discussion, McMahon actually got into some of what the government knows (or claims to know) or how it claims to have learned it.

I’m not really interested in that–though I do hope the ACLU points out this big gap in her unclassified opinion in their appeal, because their request doesn’t seem overbroad to me, particularly since the government has made unclassified claims about Awlaki being an operational leader without supporting those claims.

But I want to reflect on what it suggests that the FBI–and not CIA or NSA intelligence–seems to be treated as the crown jewels of the Anwar al-Awlaki intelligence.

As I keep repeating, we know that on the day Umar Farouk Abdulmutallab tried to attack a Detroit bound plane, the day after the government first targeted Awlaki in a drone strike, the FBI did not believe Awlaki to be operational. And while there are other big claims against Awlaki–the toner cartridge plot that implicated other AQAP members more directly, for example (and yes, I know Fox and Judicial Watch are making new claims, but they’ve been debunked)–the key claim always comes back to the UndieBomb plot.

And yet the government has avoided–in the suit Awlaki’s father took against the government, in the Abdulmutallab trial, and in this FOIA–presenting this information in any antagonistic venue. Only when they had the opportunity to present the information in a venue where their interlocutors could not challenge the provenance of their claims–in the Abdulmutallab sentencing hearing–did the government make the legal claim that Awlaki was the operational leader they ultimately killed him for being.

Again, I hope the ACLU pursues a better explanation for why the government doesn’t have to present the same level of information they’d have to present in a trial, especially given that they’ve made unclassified claims about this stuff.

Because I find it damned telling that information they’ve protected so assiduously from the antagonistic challenges they would have faced in a terror trial appear to be the central secret they’re protecting here.

Dear FBI: Show Your Work

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While we’ve been celebrating with our families, the Partnership for Civil Justice and the NYT have been reading through a set of documents showing the nationwide surveillance of Occupy Wall Street.

The documents and the FBI’s defense of them exposes several long term claims by the FBI to be false. First, that their domestic mapping program, the Domain Management Program, is not inappropriate surveillance directed at domestic politics.

An October 2011 memo from the bureau’s Jacksonville, Fla., field office was titled Domain Program Management Domestic Terrorist.

The memo said agents discussed “past and upcoming meetings” of the movement, and its spread. It said agents should contact Occupy Wall Street activists to ascertain whether people who attended their events had “violent tendencies.”

Domain Management also gets directed at Muslims and Latinos in the name of preparing to investigate terrorism and drugs. If it weren’t already clear this is about domestic spying, the inclusion of Occupy should now make that clear.

Then there’s FBI’s claim that it can’t investigate solely on the basis of speech or religion.

“The F.B.I. recognizes the rights of individuals and groups to engage in constitutionally protected activity,” said the spokesman, Paul Bresson. “While the F.B.I. is obligated to thoroughly investigate any serious allegations involving threats of violence, we do not open investigations based solely on First Amendment activity. In fact, the Department of Justice and the F.B.I.’s own internal guidelines on domestic operations strictly forbid that.”

Bresson overstates this, of course. The Domestic Investigation and Operations Guide prohibits opening an investigation solely on the basis of First Amendment activity. But it permits using such activity as part of the predicate for an investigation.

Which is why I find the FBI’s redactions so interesting.

Even the first pages of the actual documents show how FBI repeatedly acknowledged that Occupy “does not openly condone the use of violence.” But then it notes that Occupy trained for civil disobedience and its response, and from that the FBI concludes “that violence and/or illegal activity is expected by event organizers.” The FBI ascribes the violence that organizers correctly expected from cops to the organizers themselves, and used the intent to engage in civil disobedience as the means to use First Amendment activity as a predicate for investigation.

More interesting, on page 2, the FBI claims that Occupy’s website, “suggested that protestors bring ‘billy clubs and taser guns.'”

Well, that doesn’t sound like the Occupy I know (not to mention most Occupy adherents would have a tough time getting a taser gun). Luckily, the FBI included handy-dandy endnotes to show from what public sources (here, Occupy’s own website) they drew these observations.

But FBI redacted all these endnotes as a b(7)(E) exemption, which allows FBI to hide techniques used in law enforcement investigations.

These are–at least according to the claims in the document–public websites (and would have to be to be permissible under preliminary investigation rules). And yet, the FBI refuses to tell us on which public websites these claimed suggestions were made.

Probably, because that would show that FBI is using the timeworn “investigation techniques” of “drawing illogical conclusions from public claims” and “just making shit up” to invent the reason to use First Amendment activities as the predicate for an investigation.

What If It Were the Real Muslim Housewives of Tampa Bay Scandal?

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In all my coverage of the Petraeus scandal, I haven’t really touched on the aspect that regular readers of this blog were presumably least surprised about: the virtually unchecked authority the FBI has to snoop. As always, Chris Soghoian and Julian Sanchez offer worthwhile discussions of that surveillance. Yesterday, Greg Miller and Ellen Nakashima described how folks in DC are freaking out upon discovery of how intrusive all this surveillance can be.

The FBI started its case in June with a collection of five e-mails, a few hundred kilobytes of data at most.

By the time the probe exploded into public view earlier this month, the FBI was sitting on a mountain of data containing the private communications — and intimate secrets — of a CIA director and a U.S. war commander. What the bureau didn’t have — and apparently still doesn’t — is evidence of a crime.

How that happened and what it means for privacy and national security are questions that have induced shudders in Washington and a queasy new understanding of the FBI’s comprehensive access to the digital trails left by even top officials.

I’ve been saying from the start this whole shit-show would be useful if it made some Members of Congress rethink their permissive attitude towards surveillance and lazy oversight.

All that said, it’s important to note that the Petraeus example–at least what we know of it–isn’t even close to as bad as Big Brother gets in this country, even with questions about the predicate of the investigation.

Which is why I wanted to consider how this might be different if, instead of a bunch of mostly-Anglo connected Republicans, this investigation had focused on Muslims (we’ve discussed Jill Kelley and her sister’s interesting story as indebted Arab-Americans; it will be interesting to see how their access is treated going forward).

After all, while it is unlikely the FBI would have responded to a cyber-stalking complaint from an unconnected Muslim, it’s possible the internet traffic involved, particularly if it spanned international boundaries, might have attracted attention in its own right. Alternately, had the anonymous emails reflecting knowledge of the movement of top Generals involved a Muslim rather than a white Reserve Colonel, we would not now be debating whether the FBI had the predicate to investigate her emails further (though I maintain the FBI may have used a Counter-Intelligence predicate to continue the investigation in the first place).

Probably, from there the FBI would have used additional intrusive investigative methods. The National Security establishment is only now focusing on Kelley and her sister’s debt problems. Which leads me to suspect no one bothered to look at their financial records until the press started doing so. What would the FBI have found had they looked at financial records, showing more details about who paid what for whom when? How would the Kelleys’ bogus cancer charity look, for example, if you had more access to their financial records?

And then there’s one big difference. We know–because we’ve heard numerous individual stories and because Ted Olson admitted it in court–that the FBI uses discoveries like the ones they made here to coerce people to turn informant. Legal trouble, financial trouble, marital trouble? All have made people targets for “recruitment.”  And those informants are sent out, with little training or legal protection, to spy on their fellow citizens, often the leaders of their community. The FBI will send out series of informants, for years on end, to target Imams who never do anything illegal but nevertheless either have connections–possibly familial–or First Amendment protected views that lead the FBI to suspect them. In the Muslim community, some people live for years under this kind of surveillance, sometimes ultimately getting caught in an FBI sting, at other times, just living a law-abiding life under the most intrusive scrutiny.

I do hope the Petraeus example scares the shit out of the often more morally and legally compromised people empowered to approve and oversee such surveillance. But I still think the scandal offers the merest glimpse into what our current state of surveillance really looks like.