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DOJ: Give Us More Powers Because We F*** Up So Often

I don’t have time to do this EFF report justice–so just go read the whole thing. It traces the story of one of FBI’s misuses of National Security Letters–and the way in which Robert Mueller, having misused the NSLs, used the story to claim FBI needed more investigative powers. The short version is:

  • The FBI used a grand jury subpoena to get the educational records of an NC State Chemical Engineering student suspected of ties to the London subway bombers.
  • Then, someone in FBI HQ effectively said, "No, let’s use our fancy new toy, the National Security Letter, even though National Security Letters don’t apply to academic records!"
  • So the FBI returned the records, and then submitted a NSL.
  • NC State, which apparently has better lawyers than AT&T and Verizon, read the law and said, "Golly, you can’t use an NSL to get academic records!" So they denied the request
  • The FBI then gave up on the NSL, submitted a second grand jury subpoena, and voila! They got the records they had originally gotten with a grand jury subpoena.
  • Robert Mueller went before Congress and claimed that the NSL process had resulted in a two-day delay in getting the records, which justified giving FBI more investigative powers. You will not be surprised to learn that Mueller didn’t reveal the real details behind the request for records.
  • The FBI did not report this incident to the Intelligence Oversight Board as a potential violation of civil liberties until two years later, at a time when the IG was already investigating the incident.

As I said, it’s worth reading the entire EFF report, particularly its list of open questions about the incident.

But for now, I just wanted to point the the incident as yet another example (Mike McConnell’s false claim that the FISA process resulted in a delay on wiretaps on Iraqis who had kidnapped American soldiers and Michael Mukasey’s claim that FISA had prevented the FBI from learning that one of the 9/11 hijackers was communicating with a known Al Qaeda safe house are two others) where the government fucked up–and then used its own failure as an example to claim it needed more investigative powers.

It’s really a disturbing pattern. The Bush Administration apparently thinks it reasonable to argue, "we’re incompetent, so give us more ways to invade your privacy."

Consequences

I just finished Philip Shenon’s The Commission. I found it, overall, a worthwhile book. All other debates about the book notwithstanding (for example, I actually think it’s reasonably fair to Philip Zelikow, balancing his tremendous writing talents against the detrimental effect of his asshole personality), I kept thinking about the consequences of two decisions made over the course of the report–made primarily by Thomas Kean and Lee Hamilton. The Commission decided to avoid laying blame–on many people, including Bush, Clinton, and Tenet, but most of all on Condi Rice. And, after a great deal of lobbying from Robert Mueller, the Commission did not call for the break up of the FBI.

What if the 9/11 Commission had made it clear that Condi, above all other people, failed to do the things that might have stopped 9/11? What if the 9/11 Commission had called for drastic changes in the FBI?

Condi

To be fair, if Condi had received the blame she deserved, the some of her salutary influences on Bush would have been absent. For example, at several times in the last four years, Condi was probably the biggest thing standing between Dick Cheney and the war he wanted in Iran. Condi is incompetent, but incompetence notwithstanding, she may have saved us from World War III.

That said, I kept thinking of Condi’s ham-handed attempts to secure a legacy in the Middle East. In particular, I think of David Rose’s recent Vanity Fair article detailing how Condi’s inept attempts to install a strong-man in Palestine led to the Gaza coup and the strengthening of Hamas.

In essence, the program was simple. According to State Department officials, beginning in the latter part of 2006, Rice initiated several rounds of phone calls and personal meetings with leaders of four Arab nations—Egypt, Jordan, Saudi Arabia, and the United Arab Emirates. She asked them to bolster Fatah by providing military training and by pledging funds to buy its forces lethal weapons. The money was to be paid directly into accounts controlled by President Abbas.

Not just in Palestine, Condi has a habit of taking bad situations and making them worse, with tremendous costs in terms of lives and American stature. The question is, if she had received the blame she should have for 9/11, would we have avoided those mistakes? And if we did, how much more would that have empowered Cheney?

Update: MadDog reminds me I intended to link to this, from Laura Rozen. Read more

Journalists Name Former DC USA as Hatfill Leaker

Apparently, at least some of the journalists who reported that Steven Hatfill was a "person of interest" in the anthrax investigation have revealed their sources (after being released by those sources).

Attorneys for the former Army physician who was branded a "person of interest" in the deadly 2001 anthrax mailings named three federal officials Friday who they said leaked investigative details that harmed their client.

The physician, Steven J. Hatfill, has not been charged with a crime and maintains his innocence. Hatfill is suing the FBI, the Justice Department and a handful of present and former law enforcement officials. He alleges that the leaks were illegal, damaged his reputation and violated his right to privacy.

"We have identified three of the leakers who were previously anonymous," one of Hatfill’s attorneys, Mark A. Grannis, said near the outset of a sparsely attended hearing in federal court. "Some of the most damaging information leaked in this case [came] straight out of the U.S. attorney’s office."

The anthrax mailings killed five people and sickened about 20 others from Florida to Connecticut. Coming on the heels of the suicide attacks on the World Trade Center in New York City and on the Pentagon, the mailings led to the shutdown of a Senate office building and heightened the nation’s fear of prolonged terrorism.

Hatfill’s attorneys alleged that the three officials who leaked investigative details to the media were: Roscoe C. Howard Jr., who from 2001 to 2004 served as U.S. attorney for the District of Columbia; Daniel S. Seikaly, who served as Howard’s criminal division chief; and Edwin Cogswell, who formerly served as a spokesman for the FBI.

This is where this suit will get interesting. Many of the stories that Hatfill named in his suit complained about the revelation of facts pertaining to ongoing FBI searches: news that dogs searching for anthrax had responded to locations on Hatfill’s property.

The agents quietly brought the dogs to various locations frequented by a dozen people they considered possible suspects — hoping the hounds would match the scent on the letters. In place after place, the dogs had no reaction. But when the handlers approached the Frederick, Md., apartment building of Dr. Steven J. Hatfill, an eccentric 48-year-old scientist who had worked in one of the Army’s top bioweapons-research laboratories, the dogs immediately became agitated, NEWSWEEK has learned. "They went crazy," says one law-enforcement source. The agents also brought the bloodhounds to the Washington, D.C., apartment of Hatfill’s girlfriend and to a Denny’s restaurant in Louisiana, where Hatfill had eaten the day before. In both places, the dogs jumped and barked, indicating they’d picked up the scent. (Bloodhounds are the only dogs whose powers of smell are admissible in court.) Read more

FBI Tells Librarians: “Sssshhhhh!”

Remember when librarians used to be caricatured as stern matrons telling us all to shush up while we were at the library? That is, until they took on a front-line fight defending the civil liberties of Americans who just want to read books (or use computers). We all owe a debt to those librarians fighting against PATRIOT Act restrictions on free speech.

Which is why I’m not so sure it’s a good idea for the FBI to make such a clumsy stand against free speech at the librarians’ Midwinter Meeting tomorrow (h/t Momsrighthand) [note, the ALA article has been updated, but I’ll keep the original]:

The attorney who represents FBI Supervisory Special Agent Bassem Youssef, chief of the Counterterrorism Division’s Communications Analysis Unit, advised the American Library Association’s Washington Office two days before the agent’s scheduled January 12 speech at ALA’s Midwinter Meeting at the Pennsylvania Convention Center in Philadelphia that the FBI had warned him against delivering the speech. Instead, Youssef would appear to answer “acceptable questions presented by members of the audience,”

The FBI has already gotten in trouble for trying to silence Special Agent Youssef. But apparently, they still don’t want him to talk about problems with the FBI’s counter-terrorism effort.

[F]ollowing a December 20 ALA press release that detailed the program, the FBI e-mailed Youssef January 3 and “expressed its displeasure at the proposed content of his presentation, and the viewpoints for which he would raise at the conference.” Kohn added that the Bureau “explicitly took exception” to the idea that Youssef “is expected to discuss a number of critical failures within the FBI’s Counterterrorism program, which undermine basic constitutional rights of American citizens and threaten the effectiveness of America’s counterterrorism efforts.”

The FBI e-mail then issued a clear warning to Youssef against making such a presentation, noted Kohn, who explained that the agency also forwarded to Youssef a multi-page document setting forth various rules concerning pre-publication clearance of any potential speech and forbidding him to show the rules to anyone outside the agency. “The FBI does not want the general public to know the contents of the censorship provisions it unconstitutionally demands that its agents follow,” Kohn wrote, advising that Youssef would not be able to make the planned presentation.

Call me crazy, but this is just clumsy. I mean, I can see censoring someone giving a talk to DFH bloggers. But librarians? C’mon. They’re Read more

The Torture Debate

Dan Eggen and Walter Pincus have an interesting article describing the debate between CIA and FBI over whether waterboarding worked with Abu Zubaydah. If the timeline they describe is accurate, then it means that Abu Zubaydah may have given up his most important intelligence before they started torturing him (save, perhaps, fingering Ramzi bin al-Shibh). As to the information he gave up under torture, the CIA and FBI dispute whether it was useful or not. The article suggests the possibility that the CIA may have destroyed the torture tapes to hide the fact that the water-boarding was ineffective (which also might explain why Kiriakou so far hasn’t gotten scolded for telling the world that the United States tortures, since he claims it was effective).

The article explains that Abu Zubaydah was first detained on March 28, 2002 and describes him undergoing traditional interrogation methods from April and August. And apparently, using those traditional methods, they were able to get two of the most public pieces of information from Abu Zubaydah.

There is little dispute, according to officials from both agencies, that Abu Zubaida provided some valuable intelligence before CIA interrogators began to rough him up, including information that helped identify Khalid Sheik Mohammed, the alleged mastermind of the Sept. 11 attacks, and al-Qaeda operative Jose Padilla.

[snip]

Other officials, including Bush, have said that during those early weeks — before the interrogation turned harsh — Abu Zubaida confirmed that Mohammed’s role as the mastermind of the Sept. 11 attacks.

But then, the CIA and Bush wanted more, so they started water-boarding Abu Zubaydah, apparently in August (at least according to the CIA).

Whether harsh tactics were used on Abu Zubaida prior to official legal authorization by the Justice Department is unclear. Officials at the CIA say all its tactics were lawful. An Aug. 1 Justice document later known as the "torture memo" narrowly defined what constituted illegal abuse. It was accompanied by another memo that laid out a list of allowable tactics for the CIA, including waterboarding, according to numerous officials.

Note, there appears to be some debate about this detail. But the assertion by the CIA that it started in August implies that they didn’t start waterboarding Abu Zubaydah until the Bybee memo authorized it. And that the intelligence used to arrest Padilla was gathered without using torture. Of course, the CIA has a big big incentive to say that they didn’t start torturing Zubaydah until they were authorized to, so take that detail with motivation in mind. Read more