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Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland

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I continue to have little patience for the people–many of them paid to expound as lawyers on TV–who spend their time whinging that Merrick Garland is not moving quickly enough to hold Trump accountable rather than spending their time doing other more productive things to protect democracy.

I’m not aware that any of these people has tracked the January 6 investigation closely enough to name those one or two degrees away from the former President who have been charged or are clearly subjects of investigation. Similarly, I’ve seen none do reporting on the current status of Rudy Giuliani’s phones, which after a Special Master review will release a bunch of information to prosecutors to use under any warrant that DOJ might have. Indeed, many of the same people complain that Trump has not been accountable for his Ukraine extortion, without recognizing that any Ukraine charges for Trump would almost certainly have to go through that Rudy investigation. The approval for the search on Rudy’s phones may have been among the first decisions Lisa Monaco made as Deputy Attorney General.

It’s not so much that I’m certain DOJ would prosecute Trump for his serial attempts to overthrow democracy. There are tea leaves that DOJ could get there via a combination of working up from pawns who stormed the Capitol and down from rooks referred from the January 6 Commission. But I’m more exasperated with the claims that there were crimes wrapped with a bow (such as Trump’s extortion of Ukraine) that Garland’s DOJ could have charged on March 11, when he was sworn in. Even the Tom Barrack prosecution, a Mueller referral which reportedly was all set to indict in July 2020, took six months after Biden’s inauguration before it was indicted. The January 6 investigation started less than eleven months ago; eleven months into the Russian investigation, Coffee Boy George Papadopoulos had not yet been arrested and he was still months away from pleading guilty, on a simple false statements charge. We have no idea how much deliberate damage Billy Barr did to other ongoing investigations arising out of the Mueller investigation, but his public actions in the Mike Flynn, Roger Stone, and Paul Manafort cases suggests it is likely considerable. As for the January 6 investigation, as I’ve noted, it took nine months from the time FBI learned that a Capitol Police Officer had warned Jacob Hiles to delete his Facebook posts until the time DOJ indicted Michael Riley on two counts of obstruction. To imagine that DOJ would have already indicted Trump on anything he might be hypothetically under investigation at this point, particularly relating to January 6, is just denial about how long investigations take, even assuming the subject were not the former President with abundant access to free or RNC-provided legal representation.

It’s not that I don’t understand the gravity of the threat. I absolutely share the panic of those who believe that if something doesn’t happen by midterms, Republicans will take over the House and shut every last bit of accountability down. I agree the threat to democracy is grave.

But there is no rule that permits DOJ to skip investigative steps and due process simply because people have invested in DOJ as the last bulwark of democracy, or because the target is the greatest threat to democracy America has faced since the Civil War. DOJ investigations take time. And that is one reason why, if people are hoping some damning indictment will save our democracy, they’re investing their hopes in the wrong place, because an investigation into Trump simply will not be rolled out that quickly. Even if Trump were indicted by mid-terms, the Republicans have invested so much energy into delegitimizing rule of law it’s not clear it would sway Fox viewers or even independent voters.

I can’t tell you whether DOJ will indict Trump. I can tell you that if they do, it will not come in time to be the one thing that saves democracy.

And so, because I believe the panicked hand-wringing is about the least productive way to save democracy, I made a list. Here are ten way that TV lawyers could better spend their time than whinging that Merrick Garland hasn’t indicted Donald Trump yet:

  1. Counter the propaganda effort to treat the Jan 6 defendants as martyrs.
  2. Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years.
  3. Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past.
  4. Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect.
  5. Emphasize the prosecutions/charges/investigations that have or are occurring.
  6. Describe the damage done by Trump’s pardons.
  7. Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law.
  8. Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary
  9. Explain how shoddy John Durham’s indictments are.
  10. Focus on the legal threats to democracy in the states.

Counter the propaganda effort to treat the Jan 6 defendants as martyrs

Whether or not Trump is ever charged with crimes related to January 6, the right wing noise machine has already kicked into gear trying to make it harder to prosecute other culprits for the January 6 riot. They’ve done so by falsely claiming:

  • The event was just a protest like the protests of Brett Kavanaugh’s confirmation, a claim DOJ already debunked, in part by showing that the Kavanaugh protestors who briefly halted his confirmation hearing had been legally admitted.
  • They’re being treated more harshly than those who used violence at BLM or Portland protests. DOJ has submitted multiple filings showing that such claims are based on cherry-picked data that ignore the state charges many of these defendants face, the better quality of evidence against Jan 6ers (in part because they bragged about their actions on social media), and the more heinous goal of the protest involved.
  • Large numbers of non-violent January 6 are being held in pretrial detention. In reality, the overwhelming majority of those detained were charged either in a militia conspiracy or for assaulting cops. The exceptions to this rule are generally people (like Brandon Fellows or Thomas Robertson) who violated pretrial release conditions. Additionally, a good number of those accused of assaulting cops have been released.
  • January 6 defendants are subjected to especially onerous treatment in jail. Many of the conditions they’re complaining about are COVID restrictions imposed on all detainees (though often more restrictive for those who, like a lot of January 6 defendants, choose not to get vaccinated). And in an inspection triggered by January 6 defendant Christopher Worrell’s complaints, the Marshals determined that the other part of the DC jail violated Federal standards, though the part in which the Jan 6ers are held did not.
  • January 6 defendants are just patriots trying to save the country. In reality, of course, these people were attempting to invalidate the legal votes of 81 million Americans.

Again, all these claims are easily shown to be false. But far too many people with a platform are allowing them to go unanswered, instead complaining that DOJ is not doing enough to defend the rule of law. This sustained effort to turn the Jan 6ers into martyrs will achieve real hold unless it is systematically countered.

Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years

As noted above, after Proud Boy assault defendant Worrell complained about the treatment he received in DC jail, the Marshals conducted a snap inspection. They discovered that the older part of the DC jail, one housing other detainees but not Jan 6ers, did not meet Federal standards and have started transferring those detainees to a prison in Pennsylvania.

What has gotten far less attention is that problems with the DC jail have been known for decades. Even though the problems occasionally have gotten passing attention, in general it has been allowed to remain in the inadequate condition the Marshals purportedly discovered anew because a white person complained.

This is an example, then, when a white person has claimed himself to be the victim when, in fact, it’s yet another example of how brown and black people have less access to justice than similarly situated white people.

This development deserves focused attention, most of all because it is unjust. But such attention will flip the script that Jan 6ers are using in an attempt to get sympathy from those who don’t understand the truth.

Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past

There’s a lot of impatience that DOJ hasn’t simply charged January 6 defendants with sedition or insurrection.

Thus far, DOJ has chosen to use a less inflammatory and more flexible statute, obstruction, instead. Obstruction comes with enhancements — for threatening violence or especially obstructive behavior — that DOJ has used to tailor sentencing recommendations.

The wisdom of this approach will soon be tested, as several DC Judges weigh challenges to the application of the statute. If the application is overturned, it’s unclear whether DOJ will charge something else, like sedition, instead.

But DOJ probably chose their current approach for very good reason: because sedition is harder to prove than obstruction, and in the past, white terrorists have successfully beaten such charges. That’s true for a lot of reasons, partly because the absence of a material support statute makes association with a right wing terrorist group harder to prosecute.

A cable personality whom I have great respect for — NBC’s Barb McQuade — knows this as well as anyone, as she was US Attorney when a sedition conspiracy case against the Hutaree collapsed. In that case, DOJ had trouble proving that defendants wanted to overthrow the US government, the kind of evidentiary claim that DOJ will face in January 6 trials, even as currently charged.

There are real challenges to prosecuting white terrorism. Some education on this point would alleviate some of the impatience about the charging decisions DOJ has made.

Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect

In the period between the time Steve Bannon was referred to DOJ for contempt and the time he was charged, a number of commentators used the delay to explain what it takes to get an indictment (against a high profile political figure) that stands a chance of work; one good example is this column by Joyce Vance.

There have been and are numerous examples of similar delays — the Tom Barrack indictment and the Rudy Giuliani Special Master review are two — that offer similar teaching opportunities about the process and protections involved in indicting someone.

Due process takes time. And yet in an era of instant gratification, few people understand why that’s the case. If we’re going to defend due process even while trying to defend our democracy, more education about what due process involves would temper some of the panic.

Emphasize the prosecutions/charges/investigations against Trump that have or are occurring

Given the din calling for prosecution of Donald Trump, you’d think none of his associates had been prosecuted. As Teri Kanefield noted the other day, it would be far better if, instead of saying Trump had suffered no consequences for his actions, there was some focus instead on where he had.

Trump’s business is currently under indictment with multiple investigations into it ongoing. His charity was shut down and fined for self-dealing. Trump’s Inauguration Committee will be civilly tried for paying above market rates to Trump Organization.

His Campaign Manager, his National Security Advisor, his Coffee Boy, his Rat-Fucker, and one of his personal lawyers were found guilty of lying to cover up what really happened with Russia in 2016. Several of these men (as well as a top RNC donor) also admitted they were secretly working for frenemy countries, including (in Mike Flynn’s case), while receiving classified briefings as Trump’s top national security aide. Trump’s biggest campaign donor, Tom Barrack, is being prosecuted for using the access he purchased to Trump to do the bidding of the Emirates. Another of Trump’s personal lawyers, Rudy Giuliani, is under investigation for the same crime, secretly working for another country while claiming to represent the interests of the President of the United States.

The sheer scale of this is especially breathtaking when you consider the projection the GOP has — successfully — focused on Hunter Biden for similar crimes. Even with years of effort and help from Russia, the GOP has not yet been able to prove that the President’s son’s influence peddling or potential tax accounting violated the law. Yet the GOP continues to focus on him relentlessly, even as the long list of Republicans who admit to the same crime continues to grow.

Trump has already proven to be the most corrupt president in some time, possibly ever. And instead of relentless messaging about that, Democrats are complaining about Merrick Garland.

Describe the damage done by Trump’s pardons

One reason why it’s hard to focus on all those criminal prosecutions is because Trump pardoned his way out of it. With the exception of Michael Cohen and Rick Gates, all the people who lied to cover up his Russian ties were pardoned, as was Steve Bannon and others who personally benefitted Trump.

Perhaps because these pardons happened in the wake of January 6, Trump avoided some of the shame he might otherwise have experienced for these pardons. But for several reasons, there should be renewed attention to them.

That’s true, for starters, because Trump’s pardons put the entire country at risk. By pardoning Eddie Gallagher for war crimes, for example, the US risks being treated as a human rights abuser by international bodies. The military faces additional disciplinary challenges. And those who cooperated against Gallagher effectively paid a real cost for cooperating against him only to see him escape consequences.

Paul Manafort’s pardon is another one that deserves renewed attention. That’s true not just because the pardon ended up halting the forfeiture that otherwise would have paid for the Mueller investigation, the cost of which right wingers claimed to care about. It’s true because Trump has basically dismissed the import of industrial scale tax cheating (even while right wingers insinuate that Hunter Biden might have made one error on his taxes). And finally, it’s true because Trump made an affirmative choice that a guy who facilitated Russia’s effort to undermine democracy in 2016, sharing information directly with someone deemed to be a Russian spy, should not be punished for his actions.

Finally, there should be renewed attention on what Trump got for his pardons. Did Steve Bannon and Mike Flynn pay central roles in January 6 in exchange for a pardon?

The US needs some means to prohibit such self-serving pardons like Trump pursued. But in the meantime, there needs to be some effort to shame Trump for relying on such bribes to stay out of prison himself.

Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law

Donald Trump pardoned Steve Bannon for defrauding a bunch of Trump loyalists. According to very recent reporting, Sidney Powell is under investigation (and being abandoned by her former allies) on suspicion she defrauded the thousands of Trump supporters who sent money to support her election conspiracy theories.

Meanwhile, the Republican Party continues to dump money into protecting Trump for his own crimes, even as Republicans lose races that could have benefitted from the money.

However, some RNC members and donors accused the party of running afoul of its own neutrality rules and misplacing its priorities. Some of these same officials who spoke to CNN also questioned why the party would foot the legal bills of a self-professed billionaire who was sitting on a $102 million war chest as recently as July and has previously used his various political committees to cover legal costs. According to FEC filings from August, the former President’s Make America Great Again committee has paid Jones Day more than $37,000 since the beginning of the year, while his Make America Great

Again super PAC has paid a combined $7.8 million to attorneys handling his lawsuits related to the 2020 election.

“This is not normal. Nothing about this is normal, especially since he’s not only a former President but a billionaire,” said a former top RNC official.

“What does any of this have to do with assisting Republicans in 2022 or preparing for the 2024 primary?” the official added.

Bill Palatucci, a national committeeman from New Jersey, said the fact that the RNC made the payments to Trump’s attorneys in October was particularly frustrating given his own plea to party officials that same month for additional resources as the New Jersey GOP sought to push Republican Jack Ciattarelli over the finish line in his challenge to incumbent Democratic Gov. Phil Murphy.

“We sure as heck could have used $121,000,” Palatucci told CNN.

Loyal Trumpsters are the victim of one after another grift, and that should be emphasized to make it clear who is really taking advantage of them.

And one after another former Trump loyalist get themselves in their own legal trouble. One of the messages Michael Cohen tried to share in his testimony before going to prison was that “if [other Republicans] follow blindly, like I have,” they will end up like he did, going to prison. Hundreds of January 6 defendants — some of whom imagined they, too, might benefit from Trump’s clemency (they still might, but they’ll have to wait) — are learning Cohen’s lesson the hard way.

Kleptocracy only benefits those at the top. And yet Trump’s supporters continue to aggressively pursue policies that will make the US more of a kleptocracy.

It’s fairly easy to demonstrate the damage degrading rule of law in exchange for a kleptocracy is. Except average people aren’t going to understand that unless high profile experts make that case.

Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary

The Project Veritas scandal remains obscure and may never amount to charges against PV itself. Yet even as it has become clear that DOJ is investigating theft, key Republicans Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson are trying to shut down the investigation into that theft. Chuck Grassley’s efforts to do so are particularly noxious given that a long-term staffer of his, Barbara Ledeen, is a sometime co-conspirator of Project Veritas.

Republicans have undermined legitimate investigations into Trump, over and over, with little pushback from the press. This is an example where it would seem especially easy to inflict a political cost (especially since Grassley is up for re-election next year).

It would be far more useful, in defending rule of law, to impose political costs on undermining the investigations that commentators are demanding from DOJ than it is to complain (incorrectly) that such investigations aren’t happening. Merrick Garland (however imperfect) is not the enemy of rule of law here, Jim Jordan is.

Explain how shoddy John Durham’s indictments are

One of the complaints that David Rothkopf made in the column that kicked off my latest bout of impatience with the hand-wringing about Garland complained that Garland “is letting” Durham charge those who raise concerns about Trump’s ties to Russia, even while (Rothkopf assumes) ignoring Trump’s own efforts to obstruct the investigation.

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

As I have noted, both of Durham’s indictments have been shoddy work, hanging charges on Twitter rants and other hearsay evidence.

And while there was some worthwhile criticism of the Michael Sussmann indictment (perhaps because he’s well-connected in DC), Democrats seem to take Durham’s word that Igor Danchenko — and not Christopher Steele or Russian disinformation — is responsible for the flaws in the dossier. Perhaps as a result, the legal experts who could point out how ridiculous it is to rely on a Twitter feed for a key factual claim have remained silent.

With such silence, it is not (just) Garland who “is letting [Duram’s] highly politicized investigation” continue unchecked, but also the experts whose criticism could do something to rein him in.

If the investigation is politicized — and it is — then Durham is a far more appropriate target than Garland.

Focus on the legal threats to democracy in the states

There has, admittedly, been deserved focus on the ways Republicans are chipping away at democratic representation in the states.

But that is where the battle for democracy is being fought. And in most of the states where Trump attempted to undermine the 2020 election, there are follow-on legal issues, whether it’s the investigation into the suspected voting machine theft in Colorado (including into a former campaign manager for Lauren Boebert), a seemingly related investigation in Ohio, or the effort to criminalize efforts to ease voting by seniors during the pandemic in Wisconsin.

Republicans are trying to criminalize democracy. That makes it all the more important to ensure that the call for rule of law remains laser focused on the criminal efforts to cheat to win, if for no other reason than to shame those involved.

The threat to democracy is undoubtedly grave. Republicans are deploying their considerable propaganda effort into legitimizing that attack on democracy (even while suggesting Biden has committed the kind of graft that Trump engaged in non-stop, classic projection).

In the face of that unrelenting effort, expert commentators who support democracy have a choice: They can defend the rule of law and shame those who have denigrated it, or they can spend their time complaining about the guy trying, however imperfectly, to defend it himself. The latter will make Garland less able to do his job, the former will help him do whatever he is willing and able to do.

Update: Added “suspected” to the PV bullet.

Yes, Calling Only Muslims Terrorists Does Result in Disparate Treatment of Muslims

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Over at Salon, I’ve got a piece addressing the things we call terror in this country that mostly argues, “In the wake of the Planned Parenthood attack, both the right and the left should redouble our commitment to distinguishing speech from murder.” But I also start by laying out how various mass killings get labeled as terrorism.

Commentary on the deadly mass shootings over the past week — last Friday’s at a Planned Parenthood in Colorado, and yesterday’s in San Bernardino, Calif. — has thus far has focused on whether the attacks were terroristic in nature.

Such a designation would suggest violence in support of political ends but also to a set of potential criminal charges. In both cases, there were at least initial reports the perpetrators tried to set off an explosive device, in Planned Parenthood shooter’s case a propane tank (though since initial reports, police have said nothing about whether this was his intent), in the alleged San Bernardino attackers’ case, several pipe bombs. If authorities do confirm these were bombs, both cases might be treated legally as domestic terrorism. Because of an asymmetry in our laws on terrorism and our collection of online communications, if the San Bernardino shooters can be shown to have been inspired by a foreign terrorist organization, like ISIS — as now appears to be the case — their attack would be treated as terrorism even without a bomb.

At Lawfare, former NSA attorney Susan Hennessey has a piece outlining at length much the same thing. If you want a detailed legal treatment of what I summarized in that Salon paragraph, written by an actual lawyer, hers is a decent piece to read.

But her piece is far more interesting as an artifact of a certain type of thinking, complete with some really important blind spots about how the law actually gets implemented. Those blind spots let Hennessey claim, falsely, that the different treatment of international and domestic terrorism does not result in disparate treatment for Muslims.

Hennessey lays out the law behind terrorism charges and argues (and I agree) that the distinction is mostly investigative.

The most consequential citation to the § 2331(5) domestic terrorism definition is in the Attorney General Guidelines for Domestic FBI Operations which authorizes the FBI to conduct “enterprise investigations” for the purpose of establishing the factual basis that reasonably indicates a group has or intends to commit an act of “domestic terrorism as defined in 18 U.S.C. § 2331(5) involving a violation of federal criminal law”:

[snip]

As a consequence, labeling an act one of “domestic terrorism” is most important in the context of investigations, and not ultimately indictments.

She claims it’s okay to treat domestic “ideologically-motivated mass shootings” (which is a great term) as murder because states have the capacity to investigate them.

We don’t want to have a general federal murder statute, and the states are perfectly capable of prosecuting murders of American citizens within their borders, even those that are motivated by politics.

[snip]

States have no lack of capacity to investigate shootings, no lack of authorities to prosecute them, and mass shooters have tended to be very local in the past.

Of course, interest in investigating is very different from capacity to. And for many forms of right wing terrorism — the targeting of minorities and health clinics — there has been local disinterest in investigating the networks behind them. That problem has been addressed in both cases, though not by making these crimes terrorism, but rather by creating “hate crime” and Freedom of Access to Clinic Entrances laws that can give the Feds jurisdiction. But that jurisdiction does not, then, get those crimes that require Federal investigation or prosecution because localities are disinterested treated as terrorism crimes, especially not prospectively. That means the FBI will be bureaucratically less focused on and less rewarded for the investigation of them, and they’ll more often intervene after an attack than before, to prevent it. That bureaucratic focus shows up in Congressional tracking of terrorism cases and White House focus on them, which is another way of saying FBI’s bosses and purse-strings pay closer attention to the stuff that gets charged as terrorism.

Hennessey claims this doesn’t result in any disparate treatment of Muslims. To prove that there is no disparity arising out of the limitation of domestic terrorism mostly to crimes involving bombs, she lays out a list of Muslims who killed using guns that didn’t get charged with terrorism. Here’s just part of her discussion (in the later part, she presumes attackers who died would not have been charged as terrorists).

By and large, violent extremists of all stripes who use bombs are prosecuted as terrorists, while violent extremists of all stripes who use guns get prosecuted as simple murderers. Consider Nidal Hassan, the Fort Hood shooter who professed an agenda of radical Islam, yet was prosecuted by the military for simple murder. Despite overwhelming calls to categorize the act as terrorism, the Pentagon treated it as an act of workplace violence. Shortly before the Fort Hood shooting in 2009, Abdulhakim Mujahid Muhammad killed two soldiers in front of a Little Rock, Arkansas recruiting station. Following the shooting, Muhammad expressed to investigators allegiance to al Qaeda in the Arabian Peninsula. Yet he was prosecuted by the state of Arkansas and ultimately pled guilty to capital murder charges, not terrorism. The most dramatic example may be that of Mir Aimal Kasi who, in 1993, shot two CIA employees dead outside the agency’s entrance in Langley, Virginia. Kasi’s stated motive was anger over the US treatment of people in the Middle East, particularly Palestinians. He fled to Pakistan, and following a four-year international manhunt and joint CIA-FBI capture operation in Pakistan, he was rendered back to the United States. How was he charged? Not with terrorism. Kasi was convicted by the state of Virginia on capital murder charges and executed in 2002.

But, even ignoring how she presumes certain charging decisions had some attackers not died, this is not enough to prove her claim. To prove it, she’d also have to prove that non-Muslims who use bombs in “ideologically-motivated” killings do get charged as terrorists, and that the ability to charge domestic crimes using bombs is not used by FBI to create terrorism prosecutions. With a few notable exceptions, those things aren’t true.

There are a number of cases of right wingers who could have gotten charged with a terrorist WMD charge but didn’t. Most notably, there’s Eric Rudolph — who not only serially bombed abortion clinics but bombed the Atlanta Olympics, then escaped across state lines. He was charged with explosives charges but not given a terrorism enhancement (he is serving multiple life sentences in any case). Indeed, his indictment — signed by current Deputy Attorney General Sally Quillian Yates when she was an AUSA — did not once call the series of bombings and threats Rudolph carried out terrorism, even though bombing the Olympics is a quintessential example of terrorism.

Then there’s another Sally Yates case (this time as US Attorney), the Waffle House plot, in which four geriatric right wingers plotted to use weapons and ricin dropped from a plane to overthrow the federal government. They actually bought what they thought was explosives from the FBI, but did not get charged with terrorism for either the ricin or the presumed explosives.

There’s Schaffer Cox, who got busted for conspiring to kill federal authorities; he talked about using grenades but did not get charged with a WMD count. There’s Benjamin Kuzelka, the guy with Nazi propaganda trying to make TATP. There’s William Krar, the white supremacist caught with massive explosives who eventually pled to one chemical weapons charge, but without exposing what was presumed to be a broader network.

Meanwhile, there are just three cases I know of where non-Muslims did get charged with bomb-related terrorism charges — and to some degree, these exceptions prove the rule (I’m not treating ACTA “animal terrorism” cases, which introduce another order of magnitude of absurdity into the issue).

There is the Spokane MLK bomber Kevin Harpham, whose sophisticated bomb got found before it went off.  Harpham’s plea deal retained a terrorism WMD charge, but his sentence was lighter than similarly situated Muslim terrorists.

There is the Hutaree group charged on multiple counts of trying to overthrow the government, including with bombs. The terrorism related charges against the Hutaree were thrown out entirely (in part because they were charged badly), and most of the 9 of them went free.

The only case I know of that is parallel to the way many Muslims get treated is that of the Occupy Cleveland participants whose discussion of vandalism got inflamed — and focused on a target that might merit federal charges — by an informant who also plied them with jobs and other enticements. After pressing buttons they thought would detonate a bomb, they got charged as terrorists.  The judge thought the punishments requested by the government “grotesque” and sentenced them much more lightly (though still to upwards from 6 years).

I say the Occupy Cleveland case is parallel because for the overwhelming number of cases charged as Islamic terrorism, the FBI supplies the bomb and often picks the target for a “wayward knucklehead” who then gets charged with terrorism (though judges almost never consider those charges “grotesque”). There were hundreds of them already by 2011. Often, the target would have not had the ability — in terms of money, experience, and other resources — to conduct the “bomb” plot by himself. So when Hennessey justifies charging bomb but not gun crimes as terrorism because “bombers tend to be more organized in interstate groups,” what she really means is that the FBI is an organized interstate group, because that’s the organizing force that provides the expertise in the overwhelming majority of terrorism cases.

Which brings me to the most alarming claim that Hennessey makes, in the midst of an argument that the civil liberties cost of treating domestic terrorism like international terrorism is too high: that what she calls “complex legal obligations” on using “incidental” collection reflects heightened privacy concerns.

The complex legal obligations generated by incidental or intentional focus on US persons reflects the heightened privacy and civil liberties concerns at stake when we use foreign intelligence tools domestically. And rightly so, as the process of investigating and prosecuting domestic terrorists and homegrown violent extremists risks infringing into areas of constitutionally protected speech, religion, and association.

To be fair, she was an NSA lawyer, not an FBI lawyer, which is why I consider this surprising claim a “blind spot.” The NSA does have to treat incidentally US person data carefully; they actually do very few back door searches of incidentally collected data.

But many (if not most) counterterrorism targets collected under Section 702 and all traditional FISA ones get shared directly with the FBI. And the FBI can access and use the incidentally collected data not only for formal investigations, but also for assessments, such as called in tips or even just to find stuff to use to coerce people to turn informant. For incidentally collected US person data that resides in FBI’s databases, in other words, there are no complex legal obligations on incidental collection. None. It just sits there for 30 years at potential risk of contributing to a prosecution. And that’s a big source of the stings the FBI starts, when it throws an informant at some kid downloading Inspire or talking in a chat room to try to take them off the street by inventing a bomb plot.

Update: In her response to this piece, Hennessey makes it clear she believes this passage is wrong–and with respect to whether unreviewed data sits in FBI servers for 30 years, it is; with respect to how much CT data FBI gets directly it may be. But as to its accessibility, per the PCLOB report on 702, it is not. So I’m replacing this paragraph with this language from PCLOB.

Because they are not identified as such in FBI systems, the FBI does not track the number of queries using U.S. person identifiers. The number of such queries, however, is substantial for two reasons.

First, the FBI stores electronic data obtained from traditional FISA electronic surveillance and physical searches, which often target U.S. persons, in the same repositories as the FBI stores Section 702–acquired data, which cannot be acquired through the intentional targeting of U.S. persons. As such, FBI agents and analysts who query data using the identifiers of their U.S. person traditional FISA targets will also simultaneously query Section 702–acquired data.

Second, whenever the FBI opens a new national security investigation or assessment, FBI personnel will query previously acquired information from a variety of sources, including Section 702, for information relevant to the investigation or assessment. With some frequency, FBI personnel will also query this data, including Section 702– acquired information, in the course of criminal investigations and assessments that are unrelated to national security efforts. In the case of an assessment, an assessment may be initiated “to detect, obtain information about, or prevent or protect against federal crimes or threats to the national security or to collect foreign intelligence information.”

[snip]

Section 702–acquired communications that have not been reviewed must be aged off FBI systems no later than five years after the expiration of the Section 702 certifications under which the data was acquired.

So if conducting network investigations of “domestic terrorists and homegrown violent extremists risks infringing into areas of constitutionally protected speech, religion, and association,” — and I absolutely agree it does — then it does for Muslims as well, except that because we’ve made the terrorism Muslims might engage in a different category of collection and thrown billions of dollars at it, they’re not accorded that protection.

Finally, there’s one other problem with the assumption that international terrorism requires enterprise investigations but domestic terrorism doesn’t (that’s not actually what happens; FBI does do enterprise investigations of domestic terrorism, just with a different focus and different SIGINT tools). People get killed as a result.

Consider Kevin Harpham’s case, the MLK bomber. The government used the correspondence Harpham had while in jail with known white supremacist Frazier Glenn Miller (who was, I believe, then in North Carolina but would move to Kansas) to call for an enhanced sentence. Miller’s offer to raise money for Harpham might have been evidence of an interstate network worth tracking. But the FBI appears not to have done so, though, given that Miller went on to murder three people he believed (wrongly) to be Jewish two years later. Miller got charged at the state level and will be executed.

Similarly, supporters of the militant anti-choice group Army of God have corresponded with people who had been previously convicted for attacks before attacking others (in addition to publishing Rudolph’s memoir), and George Tiller’s murderer, Scott Roeder, has issued threats while talking with Army of God supporters from prison as recently as two years ago. These things have happened across state boundaries, so would be tougher to investigate at the local level. Like ISIS or AQAP, Army of God makes how-to materials available to its supporters.

Indeed, the way in which Army of God fans have networked is particularly important given this claim from Hennessey:

[With the Planned Parenthood attack], there is no apparent evidence that the perpetrator was acting as part of a larger group, and thus no need for the federal government to pursue an enterprise investigation.

I presume she isn’t privy to the evidence discovered so far, so in fact has no basis to say this. But even the public reporting poses good reason to look for such connections. Six years ago, Dear considered the Army of God to be heroes for their actions.

In 2009, said the person, who spoke on the condition of anonymity out of concerns for the privacy of the family, Mr. Dear described as “heroes” members of the Army of God, a loosely organized group of anti-abortion extremists that has claimed responsibility for a number of killings and bombings.

As ISIS did with the San Bernardino attack, the Army of God hailed the Planned Parenthood attack.

 Robert Lewis Dear aside, Planned Parenthood murders helpless preborn children. These murderous pigs at Planned Parenthood are babykillers and they reap what they sow. In this case, Planned Parenthood selling of aborted baby parts came back to bite them.

Dear was very active online, so it is not unreasonable to wonder whether he had reached out in the interim period to the group or consulted their how-to resources. But you’re not going to find those ties unless you look for them, and series of localized murder trials are far less likely to do that than an FBI enterprise investigation.

The FBI doesn’t entirely ignore attacks on reproductive health clinics. Indeed, it issued a threat assessment predicting increased targeting of clinics in September. Would a more focused enterprise investigation into Army of God before the Planned Parenthood attack have prevented it?

Frankly, as Hennessey says, there’s a balancing of civil liberties that goes on. And it may be that the number of deaths we suffer from non-Islamic “ideologically-motivated mass shootings” hits that sweet spot of the number of deaths we’ll tolerate given the risks to civil liberties (or — as I argued at Salon — it may be that because we suffer so many non-Islamic “ideologically-motivated mass shootings” and non-Ideological mass shootings, we need to develop another approach to combat them).

But under the current system, the victims of Islamic “ideologically-motivated mass shootings” are treated as more important deaths than all the others (which almost certainly inflates the import of them and thereby feeds more terror). All American mass deaths, ideologically-motivated, Islamic or not, deserve the same access to justice (or chance of prevention). And all Americans, whether they worship in a church or a mosque or a library, deserve the same protection for their First Amendment rights.

Update: As I noted above, Hennessey has replied to my piece. She expands on this sentence:

It is also the case that Muslim populations have been disproportionately impacted by foreign-specific material support laws.

To this discussion, to make it far, far more clear that she recognizes there is a difference.

In fact, I actually do believe that Muslims are disparately impacted by terrorism laws. Indeed, in my piece I make this point expressly with respect to material support laws. Furthermore, whatever the legal distinctions between homegrown violent terrorists and domestic terrorists—domestic actors with no contact with foreign groups who may or may not be inspired by foreign terrorist ideology—the law certainly applies dramatically different consequences to foreign terrorist organizations and international terrorists who commit crimes in coordination with those organizations. The FBI can pose as Al Qaeda or ISIS operatives and trick a homegrown violent extremist into becoming an international terrorist based on contact with wholly fictitious terrorists. Walk that out to include crimes of attempt and material support, as Wheeler notes, and the disparate application is reflected in the prosecution numbers.

She then shows the results of her research to find several more white people charged as terrorists (notably McVeigh; I don’t contest that if we go back far enough in time before 9/11 we could find loads of white people charged as terrorists, and rightly so).

But her treatment of Rudolph reinforces my point.

Rudolph is a puzzling case, because the government declined to even indict on terrorism charges that would seem to have been clearly available. But while Rudolph was not charged as a terrorists, federal authorities had long publically referred to him as just that. In a statement following Rudolph’s arrest then Attorney General John Ashcroft called Rudolph’s crimes “terrorist attacks” outright.

First, the fact that Ashcroft calls Rudolph’s attacks terrorist attacks, but does not call him a terrorist, precisely stops short of calling a white man a terrorist. More importantly, Hennessey has spent two articles talking about terrorism being a legal distinction, specifically backing off what people get called.

There is an element of truth to this as a matter of media vocabulary, and certainly there are those in right-wing corners of the media who are quick to call terrorism any act of violence perpetrated by someone from an Arab or Muslim country.

But if we’re going to measure what people get called, then her gun/bomb distinction breaks down. Because many of the Muslims attacking with guns get called terrorists by the Feds (though they generally did not with Nidal Hasan, which adds the element of military targeting).

And all of this comes back to her initial point, with which I agree: this is about investigation. And the reality is, regardless of what it called him, the government treated Rudolph (and Harpham) as a lone wolf, not as a person in the network that he was in. One reason fewer white ideological terrorists get charged with terrorism is because until you do that investigation, you may not find the network, especially since the chances it will be sitting in an FBI server are much lower because of the different standards for collecting data. And, in the case of Frazier Glenn Miller, you may not prevent deaths you might have.

The FBI has dedicated 400 people to investigating what motivated the San Bernardino attackers because it is clear they were radicalized but their actual ties to foreign terrorists are not yet. That’s a focus on identifying foreign and US-based networks that rarely happens with white ideological violence, and as a result it doesn’t get approached systematically.

FBI in Detroit Profiles Muslims and Arabs in Spite of 12 Whites Engaged in Terrorism

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As part of a new ACLU project to FOIA and map all the racial profiling the FBI has been doing, it liberated a Detroit FBI document describing its efforts to set up a “Domain Management” assessment (which seems to be a nice euphemism for racial profiling). It describes what it claims is the distinct counterterrorism threats in Michigan.

There are more than forty groups designated as terrorist organizations by the US State Department. Many of these groups originate in the Middle-East and Southeast Asia. Many of these groups also use an extreme and violent interpretation of the Muslim faith as justification for their activities. Because Michigan has large Middle-Eastern and Muslim population, it is prime territory for attempted radicalization and recruitment by these terrorist groups. Additionally, Sunni terrorist groups always pose a threat of attack on U.S. soil since it is the stated purpose of many of these groups. The Detroit Division Domain Team seeks to open a Type IV Domain Assessment for the purpose of collecting information and evaluating the threat posed by international terrorist groups conducting recruitment, radicalization, fund-raising, or even violent terrorist acts within the state of Michigan.

Of course, MI is not just home to a lot of Arab-Americans and Muslims. It’s also home to a bunch of right wing militias and all-around nutjobs. So using racial profiling to find terrorists–the FBI admittedly uses State’s list of international terrorists, which of course excludes domestic right wing terrorist groups–would miss the white terrorists we have in MI.

To give you an idea of what that would miss, I checked out all the press releases the Detroit FBI Office and US Attorney’s Office has put out since this document was written on July 6, 2009 to see what kind of crimes related to or possibly related to terrorism we’ve had in the state. Here’s what it showed.

  • October 28, 2009: 11 members of “Ummah” arrested, Imam Luqman Ameen Abdullah killed. (Ultimately the FBI backed off their claim these folks had any tie to terrorism.)
  • October 29, 2009: Mujahid Carswell (AKA Mujahid Abdullah) taken into custody by Canada’s RCMP for immigration violations.
  • October 31, 2009: Mohammad Alsahli (aka Muhammad Palestine) and Yassir Ali Khan taken into custody by Canada’s RCMP for immigration violations.
  • December 25, 2009: The Undie-Bomber tried to bring down a plane.
  • January 22, 2010: Syrian Mohamad Mustapha Ali Masfaka lied to Customs and Border Patrol agents about his ties to Holy Land Foundation; he was later convicted.
  • March 29, 2010: Nine white members of the Hutaree militia arrested for seditious plot to overthrow the government.
  • June 7, 2010: A 73-year old white man, Russell Hesch, and his son sent a letter to Bart Stupak threatening to paint the Mackinac Bridge with his blood in retaliation for voting for Obama’s health insurance reform.
  • April 21, 2011: A 42-year old white schizophrenic from the Upper Peninsula, Gary John Mikulich, planted a bomb outside the Federal Building.
  • August 3, 2011: Someone left a Molotov cocktail outside an abortion clinic in Detroit.
  • September 12, 2011: A Frontier Airlines flight was diverted because two men of Indian descent and a Saudi-Jewish woman, Shoshana Hebshi, had made a passenger suspicious.
  • September 23, 2011: A white St. Joseph man, Reed Berry, was arrested for ramming an FBI surveillance car; the agents were investigating him for alleged ties to a Foreign Terrorist Organization. (This was no in DOJ press releases, but since he was accused to foreign terrorist ties, this clearly fits.)
  • September 26, 2011: A white 64-year old man, John Lechner, arrested for having as much explosives as took down the Oklahoma City Murrah Federal building and talking about mercenaries. (Note, this was not in any FBI or DOJ press releases I could find.)

So while the FBI has been profiling Muslims (including, arguably, the African-American mosque the FBI labels the “Ummah”; while Shoshana Hebshi and the two Indian men were clearly profiled on 9/11, this was not by the FBI), 13 white people in Michigan have been alleged to engage in some kind of terrorism: The 9 members of the Hutaree, Russell Hesch threatening Stupak’s life, Gary Mikulich making a crazed bomb attack on the Federal building, John Lechner’s stash of 4000 pounds of explosives, plus the ties to a foreign terrorist organization the FBI alleges Reed Berry has (his attorney says they were surveilling Berry for protected speech). And that’s assuming the still unsolved clinic bomber was not white.

Not only will profiling result in the harassment of people like Hebshi and the extreme over-reaction of the FBI with Luqman.

But in MI, it also risks missing what–setting aside Luqman’s mosque–has actually been the majority of terrorists and alleged terrorists in recent years. That’s not just dumb. It’s dangerous.

Update: Added Lechner–h/t Lakeeffectsnow.

Teaching Christian Moderation

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A retired Navy guy decided to treat Spencer’s reporting on the dangerously bad training the FBI is giving its agents by offering a justification for that training with his own theological argument for why Muslims are dangerous.

For my own part, I would like to draw a necessarily blurry line between what Mr. Ackerman and the FBI call “main stream” American Muslims and the “pious and devout.” Because the possibility never occurs to the former at least that to be a pious and devout Muslim necessarily means super-ordinating the will of God, as expressed to his Prophet 14 centuries ago in an inalterable text, and that this potentially places the believer in conflict with the values of modern Western Civilization. Most will find a way to live with that conflict. A notable few, weak-minded or otherwise deficient, have spectacularly failed to do so.

Mr. Ackerman clearly sees this as a civil rights issue rather than one of understanding the threat to the Republic – and you’d have to be willfully blind to think there is no threat, regardless of how dangerously you choose to characterize it. He sees the affirmative and bountiful evidence of Muslims in America who are good citizens and looks no further. Steeped in the culture of Western liberalism, he declines to even recognize this possibility: To the degree you are a good Muslim, as defined by rigorously following and promoting the entirety of the Koran (with Islam lacking as it does any centralized institution to contextualize those 7th Century scriptures in a 21st Century world, what other definition could there be?) it becomes increasingly difficult to be a good citizen.

[snip]

The prophet Mohammed is to his faithful the perfect man and final prophet. He took earlier Abrahimic traditions and crafted out of them the perfect book, with his own life as a perfect example.

There are secular Jews, who identify with the morality of their ethnicity more than its scriptural beliefs. There are so-called “salad bar” Catholics, who pretend devotion in every other way but for whom a woman’s right to choose is inviolable – Teddy Kennedy routinely got their votes. But none among their respective faiths could call them truly pious and devoted. There are Muslims who are good citizens who point out to us the more radically dangerous among them, and those of Islamic (as opposed to Islamist) traditions who eschew the active “lesser” Jihad to await God’s inevitable ordering of the world under Sharia. But to be a truly pious and devout Muslim – of the Wahabist and Salafist sects in particular – requires the follower to accept as unquestioned the guidance and example of Mohammed, and act on them, straight down the line. It is useful to remember that “Islam” means submission to God’s will, and God wills the believer to act.

Now, you can object to his understanding of theology (and I do). But for the moment, pretend everything he says is true.

He’s still ignoring one of the reasons the FBI training makes our country less safe. (When I pointed it out to him, he ultimately dismissed me because I pointed out that according to the FBI, we can’t trust those who endorse torture, and therefore we shouldn’t trust the US Government).

In addition to training FBI counter-terrorism agents that pious Muslims are–must be–prone to violence, the FBI is also training counter-terrorism agents that pious Christians (and Jews) are moderates not prone to violence. Pious Muslims are radical and pious Christians are, by definition, moderate. In these training slides, there are some (non-pious) Muslims who are lumped in the “moderate” category, but no Christians put in the “radical” category.

This, of course, also trains FBI counter-terrorism agents not to be all that worried about Christians who appear to be pious. They won’t be radical and therefore won’t be terrorists. It trains FBI counter-terrorism agents not to look for terrorists among the fundamentalist Christian (or Catholic or any other Christian) community. It makes it far more likely that FBI counter-terrorism agents will miss the Hutarees and Scott Roeders of the world.

In response, he said that we don’t have to worry because these Christian terrorists weren’t good Christians.

They may claim to be “pious” but claiming does not make it so. “Thou shalt not kill” + “Turn the other cheek” = Piety.

Now, aside from the fact that Neptunus Lex is taking it upon himself to dictate what counts as pious or not, rather than the thousands of Christian preachers who might not see it Lex’s way (mind you, I prefer his vision of Christianity, it’s just that I’ve run into a lot of preachers who preach something other than “turn the other cheek”), his distinction between what Christian terrorists like Roeder “claim” and what they “are” is meaningless from an investigative perspective–and therefore is meaningless to the safety of our country. I mean, is Lex asking FBI counter-terrorism agents who have been trained to assume pious Christians are by definition moderates to make the effort to conduct a theological exam on Christians to determine whether they simply “claim” to be pious or are actually pious, according to Lex’s understanding of theology? And how are the faith communities that espouse or condone violence–whether it be the death penalty, America’s wars, or killing abortion doctors–going to feel when they learn that some guy named Neptunus Lex had deemed them not to be pious? I’m pretty sure this is why we’ve got a First Amendment in this country, but it appears to increasingly not apply to Muslims.

Now, thankfully, in the case of the Hutaree and some of the White Supremacist/Sovereign terrorists who also happen to appear to be pious Christians, the FBI has still investigated, though not always. Thankfully, the FBI didn’t make the same mistakes they made with Roeder. But given that non-Muslim terrorists remain a real threat to this country, training FBI counter-terrorism agents that pious Christians are by definition moderate is just as counter-productive as pissing off (and discouraging the cooperation of) the entire Islamic faith community with a theological claim that Islam is a radical religion.

FBI Doesn’t Consider Amerithrax among Its WMD “Highlights”

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The FBI’s WMD Center turned 5 on Tuesday and to celebrate, DOJ has released an interview with Dr. Vahid Majidi. (Part One, Part Two)

The interview is not all that interesting. I’m much more interested in the list of WMD cases Majidi offers as the successes the Directorate has had in the last five years. They are:

  • Jirair Avanessian, Farhoud Masoumian, and Amirhossein Sairafi, conspired to ship certain prohibited technologies–notably, vacuum pumps and pump-related equipment–to Iran.
  • Jeffrey Don Detrixhe, for possessing 62 pounds of sodium cyanide he intended to sell to “Fat Bob,” a member of the Aryan brotherhood; Detrixhe was captured using an informant, though he did obtain the sodium cyanide on his own.
  • Bechtel Jacobs employee Ron Lynn Oakley, for trying to sell uranium enrichment fuel rods to a person he thought was a foreign agent.
  • Roger Von Bergendorff, for possessing ricin (and an Anarchist Cookbook to learn to make it).
  • The “Newburgh Four,” for plotting to attack synogogues in NY; the plot was hatched by a notorious FBI informant who offered $250,000 for their involvement in the plot.
  • Khalid Ali-M Aldawsari, for obtaining materials to make explosives to use against American targets.
  • Michael Finton (aka Talid Islam), for attempting to bomb an Illinois Courthouse; the plot was a sting set up by an FBI informant, and the bomb was never live.
  • Hosam Smadi, for attempting to bomb a Dallas skyscraper; the plot was a sting set up by FBI undercover agents, and the bomb was never live.
  • Michael Crooker, for possessing ricin and threatening a Federal prosecutor (including by invoking Tim Mcveigh); an earlier prosecution on firearms possession was overturned.
  • Najibullah Zazi, for attempting to use TATP to attack the NYC subway.
  • The Hutaree, for attempting to use explosives to attack the government.

Just about all these cases were plead. And, as the list makes clear, a number of the cases (with the exception of the Zazi and Aldawsari, those involving Islamic terrorists) were stings built by informants and/or undercover agents. The “real” plots were just as likely to be launched by right wing terrorists as by Islamic terrorists.

Notice what’s not on this list, though. In addition to Mohammed Osman Mohamud (another plot created by an FBI sting)  and Kevin William Harpham (the alleged MLK bomber) and a number of others, these WMD successes don’t include Amerithrax, by far the biggest investigation into WMD in the last five years.

The interview makes just one reference to a potential anthrax attack:

Q. What about all those white powder letters?

Dr. Majidi: Most turn out to be hoaxes, and they require a lot of investigative resources, but we have to investigate each and every incident. You never know when one of them will be real.

In a different inteview, Majidi points to the FBI’s investigation of hoax letters–but not the real ones–among the Directorates’ work.

If you remember, after 9/11 there was a rash of hoax letters that contained white powder sent to various recipients including to U.S. legislators. People were worried about the spread of anthrax and other disastrous outcomes. Because of our work at the WMD Directorate, we realized a high rate of success in prosecuting those who sent the letters.

These threats were insidious because they terrorized people, closed down businesses, and essentially stopped the business of governing the United States until the FBI could investigate. It involved a tremendous amount of local and federal resources, and at the same time took those resources away from other critical law enforcement and investigative needs. It cost taxpayers money, harmed businesses, essentially slowed down our society, and created measurable panic and insecurity.

No mention–in this interview or the earlier one–of the letters that didn’t end up being a hoax.

And it’s not that the WMD Directorate wasn’t involved in Amerithrax. Indeed, when Majidi, then the WMD Directorate’s Assistant Director, conducted the briefings to explain why FBI believed Ivins was the anthrax culprit, he attributed part of the “success” to the WMD Directorate.

The creation of the Weapon of Mass Destruction Directorate is another example of FBI’s progressive approach focusing on prevention as well as investigations on all issues involving chemical, biological, radiological, and nuclear materials.

In terms of time, cost, and attack severity, the anthrax attack has been the most important thing the WMD Directorate has worked on since its inception. So why is Majidi so reluctant to talk about it?

A New Form of MI “Terrorist”: The Friendly Fire One

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There was a weird period last spring, as all the fearmongering in the country focused on the underwear bomber sitting in a jail just nineteen miles from me, after the autopsy of an African American imam in Detroit raised new questions about FBI’s pursuit of him as a terrorist, and after some of the only white people indicted under the WMD charges usually reserved for Muslims were arrested in my county, when it felt like Michigan was the melting pot of terrorism. Our local news was full of coverage of the al Qaeda terrorist, the purported black Muslim terrorist, and the alleged Christian militia terrorists all at one time.

Not that it gave me any special wisdom about terrorism, but from my vantage point in MI, self-confident claims about what made and did not make a terrorist always seemed too confident to me.

Which is why I find it particularly tragic that our abstract certainty about who is and who is not a terrorist has led to this: the friendly fire death of two Americans last week–including Navy medic Benjamin Rast from Niles, MI–in a Predator drone strike in Afghanistan.

The investigation is looking into the deaths of a Marine and a Navy medic killed by a Hellfire missile fired from a Predator after they apparently were mistaken for insurgents in southern Afghanistan last week, two senior U.S. defense officials said Tuesday.

[snip]

Marine Staff Sgt. Jeremy Smith of Arlington, Tex., and Seaman Benjamin D. Rast of Niles, Mich., were hit while moving toward other Marines who were under fire in Helmand province.

Perhaps appropriately, the LAT just laid out in chilling detail the ways in which our drone targeting is prone to human error (the LAT article appeared after Smith and Rast were killed but before DOD admitted they were killed by a drone strike). In an effort to bypass unreliable Afghan partners, we have moved increasingly to targeting people who act or look like insurgents. But from 15,000 feet above the ground, with analysis conducted 7,000 miles away, it seems Americans own troops can look like insurgents, too.

My condolences to the families and friends of these men. May we learn a lesson from this about the false certainty that drives our war against terrorism.

“Countering Violent Extremism”

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Sorry to let the threads grow so long of late–I’ve been out weeding again, if you know what I mean.

So partly to open up another thread to discuss the many ways in which our government kills Americans and/or journalists, and partly because we’ve been talking about whether the Hutaree militia organizing 40 miles from my house to the west, or whether the Imam gunned down by the FBI 30 miles in the other direction, were terrorists, I wanted to point to a Mark Hosenball post on the jargon replacing “GWOT”:

Not long after President Obama took office, he unofficially put an end to a favorite phrase of his predecessor: the “global war on terror.” True, George W. Bush used it so much that GWOT, as it became known in Washington, had largely lost its impact. But it got the job done—and Obama had yet to find a tough, pithy replacement. Until now.

In a speech today before a conference on post-9/11 intelligence-reform efforts, Director of National Intelligence Dennis Blair didn’t once utter the words “global war on terror.” But at least twice he talked about the administration’s efforts at “countering violent extremism.”

[snip]

CVE has been slowly catching on among the Obama crowd. Daniel Benjamin, the State Department’s top counterterrorism adviser, used it in testimony he gave to the Senate Armed Services Committee last month. As Benjamin explained it, “The primary goal of countering violent extremism is to stop those most at risk of radicalization from becoming terrorists. Its tools are noncoercive and include social programs, counter-ideology initiatives, and working with civil society to delegitimize the Al Qaeda narrative and, where possible, provide positive alternative narratives.” He added, “We are working hard to develop a variety of CVE programs.”

Hosenball also quotes John Brennan acknowledging that terrorism is a tactic.

It seems we’re replacing the word “terrorist,” then, with “extremist.” Preferable, in my mind, to be sure. But how will the term be used in the United States where we’ve got nutcases threatening members of Congress because they don’t like democratic votes? And will the fight against extremists merit special tactics in return, like the targeting of Americans with no due process?

Eve Conant: Right Wing Terrorists Are Still “Ho Hum”

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Newsweek’s Eve Conant, in the guise of writing about progressive media, reviews several descriptions that consider the Hutaree militia a disturbing case of right wing domestic terrorism. She links to a Blue Texan post, quotes Rachel Maddow describing them as “a ‘strange combination of absurd and scary’ with names ‘out of a Calvin and Hobbes strip’,” includes a judgment from Ed Brayton (who knows his right wing MI violence) that they are dangerous but fringe even for right wing militia groups, quotes from Eugene Robinson’s op-ed calling out apologists trying to draw false equivalence between right wing violence and left wing activists, and finally cites stats from the Southern Poverty Law Center showing that militia activity has exploded recently.

But she still, ultimately, clings to the kind of “on the one side, on the other side” cowardice that fuels beltway media.

The question of who is worse, right-wing or left-wing radicals, and how to label radicals cropped up again most recently when pundits raced to describe recent Pentagon shooter John Patrick Bedell as right wing and conservatives lashed back that he was left wing.

[snip]

Whether [the 363 new Patriot groups that have sprung up this year] are right wing or left wing will continue to be debated, but Robinson argues that such a debate is a nonstarter.

But there’s a reason why Conant probably insists there is a debate about this right wing violence. She believes anti-government violence–even people like Joseph Stack, who flew a plane into a federal building and killed a man–is literally “ho hum.”

Isn’t the ho-hum reaction in part the simple psychology behind the fact that a) no one likes the IRS and b) he’s an American (so closest he might get is “domestic terrorist” in terms of labels) who doesn’t hate Americans but hates an institution. The act is horrible, but somehow the motivation is perceived as less offensive. As one conservative at the CPAC conference told me, Stack simply “made a poor life choice.” There’s no way anyone would say that about the underwear bomber.

So sure, Conant can review a bunch of stats showing that this kind of violence is exploding, she can review Ed Brayton’s knowledgeable statements about the danger of groups like the Hutaree, but because someone at CPAC told her Stack’s murder-suicide constituted a “poor life choice,” she’s going to consider the danger of rising right wing terrorism open for debate.

Eve Conant, I guess, can dismiss the reality of rising right wing terrorism with platitudes about “less offensive” motivations and “poor life choices.” As if that will somehow make up for the number of people that have already died as a result of this terrorism.

The Militiagan Wolverines

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Here’s a copy of in the indictment against the nine Hutaree milita members who were planning attacks on the government. (h/t scribe and Jeralyn)

Since we’ve been talking about whether right-wing extremists are organized enough to call terrorists, here are some details about their collaboration with others.

  • On February 6, 2010, several members of the militia “attempted to travel to Kentucky” for a summit of militia groups convened by the guy leading this group. In anticipation of the summit, the Hutarees tried to make IEDs. (Weather prevented them from reaching their destination.)
  • From August 13, 2009 to the present, Hutaree members used email, the internet, and phones to attempt to use explosive bombs and mines against local, state, and federal law enforcement officers and vehicles.
  • On August 22, 2009, members of the militia used firearms to conduct seditious conspiracy.
  • On February 20, 2010, members of the militia used firearms to conduct seditious conspiracy and attempted use of WMD (IEDs).
  • The head of this militia planned a “covert reconnaissance exercise” for April 2010 “during which exercise anyone who happened upon the exercise who did not acquiesce to HUTAREE demands could be killed.”
  • Two of the leaders of this militia taught others how to make IEDs.

Two points that may be unrelated. This group started conspiring war against the United States on August 16, 2008, so after Obama got the presidential nomination. And Obama is scheduled to appear before University of Michigan’s graduation on May 1.

So, to sum up. You’ve got a band of people training in the use of IEDs to use against law enforcement to wage war against local, state, and Federal government. They would have had a summit to expand their plans, if only snowstorms hadn’t prevented them from doing so. But they are coordinating their efforts, across at least two to four states, over the internet.

Are these guys terrorists yet?