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In Attempting to Justify Trump Muslim Ban, Propaganda Outlet Proves Inanity of Iran, Sudan Inclusion

WaPo did this fact check on Trump senior advisor Stephen Miller’s claim that, “72 individuals, according to the Center for Immigration Studies, have been implicated in terroristic activity in the United States who hail from those seven nations, point one.” It awards his claim three stars, stating,

[U]pon closer examination of the cases on the list, it becomes clear that his statement went too far. In fact, this is pretty thin gruel on which to make sweeping claims about the alleged threat posed to the United States by these seven countries, especially because the allegations often did not concern alleged terrorist acts in the United States.

[snip]

Regardless of the direct or tangential ties that investigators believe each individual may have to terrorist activities, these charges need to be proven in a court of law. Suspected or potential terror links involving these 72 individuals do not confirm Miller’s claim that they were “implicated in terrorist activity.”

Moreover, some people on this list entered the United States — many of them naturalized — decades before they were charged with any of the crimes. That makes Miller’s use of this list to defend Trump’s executive order quite questionable.

There are other methodological problems with the list Miller references that WaPo doesn’t consider. For example, it includes people, like Ahmed Warsame, who got extradited or rendered to the US, so it’s not like their presence in the US can be attributed to visa screening (though there is some concern that the Muslim ban will make it more difficult to extradite and coerce cooperation from similarly situated defendants, thus making it harder to round up threats overseas).

Just as strikingly, the list affirmatively undermines the claim that these seven countries are all a threat. Of the CIS’ list of 72 individuals, just four are from Iran, two from Libya, just one from Sudan. And the claims implicating these people mostly fall apart when you look closer. Most of them arise from the efforts in the early 2000s to prosecute Muslim charities, and several of those cases eventually fell apart, rather spectacularly in a case associated with Al-Haramain. Plus, in at least two cases, these defendants got caught in the middle of America’s changing views on which terrorists it criminalizes and which it partners with.

Sudan

Abdel Azim El-Siddig: CIS claims that El-Siddig was found guilty of conspiracy to fail to register as a foreign agent and was sentenced to 58 months. That’s an error. El-Siddig plead just to conspiracy to violate FARA. He was sentenced to probation and has served that sentence. El-Siddig was largely charged in an effort to coerce his cooperation in prosecuting former Congressman Mark Deli Siljander, who pursued the interests of the Islamic American Relief Agency. Ultimately, even Siljander was only sentenced to a year; it looks like this may have been one of the cases that fell apart based on crummy intelligence.

Libya

Ali Mohamed Bagegni: One of the Libyans listed is Ali Mohamed Bagegni, who was on the board of IARA and got wrapped up in the case against Siljander. He served 6 months of probation.

Emadeddin Muntasser: Muntasser was convicted in another charity case — for lying to get tax exempt status for Care International and also for lying about having met Gulbuddin Hekmatyar, who has gone on and off America’s list of favored terrorists for twenty years now. Judge Dennis Saylor overturned the tax charge, finding it was not supported by the facts presented. The First Circuit reinstated guilty verdicts on tax charges, but Saylor just sentenced him to time served.

Iran

Siavosh Henareh: As WaPo notes, one of the Iranians listed is Siavosh Henareh. He was busted for conspiracy to import heroin that others allegedly were going to use to raise money for Hezbollah. But he was not charged with any ties to terrorism.

Pete Seda (Pirouz Sedaghaty): Seda’s case is a particularly problematic charity case, as we know the government illegally spied on him under Stellar Wind (though they probably did with all the other charity defendants as well). Ultimately, though, the charge that he tried to funnel money to Chechen fighters was overturned by the 9th Circuit, and he pled guilty to tax fraud. The case fell apart in part because the government had to pay off witnesses to implicate him and withheld other information. See this post for more details about how HSBC got off for a far bigger scale of crime associated with this case.

Zeinab Taleb-Jedi: Taleb-Jedi was prosecuted in 2006 for material support for MEK, the anti-Iranian group that a good chunk of DC has also materially supported, including Howard Dean, Elaine Chao, John Bolton, Fran Townsend, and Newt Gingrich, a group which had been a big source of often flimsy intelligence on Iran.  She stalled out that prosecution and in 2009 ultimately pled guilty to violating an executive order. Shewas sentenced to time served.

Manssor Arbabsiar: I’ve written about the Scary Iran Plot extensively (for example here, here, here, here). It is the one case where someone really was convicted of plotting an attack in the United States — in this case, to assassinate then Saudi Ambassador to the US Adel al-Jubeir. Arbabsiar plead guilty to the charges, so there’s no doubt he did act on his Revolutionary Guard cousin’s orders to find someone to kill the Saudi Ambassador. But most of the details about the plot — Arbabsiar’s likely prior role as an informant and his efforts to resume that role, DEA’s great craft in making the plot as scary as possible (even targeting a restaurant favored by Senators), the circumstances surrounding Arbabsiar’s interrogation and mental competence, and even hints that the cousin may have been a mole for another government — raise questions about how serious Iran was about actually conducting this attack.

In short, just one of these cases can really be construed as an attempted attack, and that was pretty remarkable for the fiction and other handiwork the DEA went into in making it a spectacular bust.

Don’t get me wrong. The overall list is bullshit too. If you look at CIS’ numbers, you see that most represented community, Somalia, also happens to be the one that has for years partnered closely with the FBI to alert them to concerns about radicalization. That basically means Trump’s Muslim ban punishes that community for affirmatively working to prevent terrorism.

But CIS’ efforts to pretend that Iran, Sudan, and Libya make sense here fall even further flat.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

BREAKING! There Were State-Sponsored Terrorists Operating in the US in 2015

If we’re to believe the NYT’s explanation for why Yahoo was asked to scan all its email in 2015, there are (or were) state-sponsored terrorists operating in the US. That’s the only logical explanation for why the FBI would use an individualized FISA court order to obligate Yahoo to adapt their kiddie porn filter to search for a signature used by what NYT describes as state sponsored terrorists.

Although the digital signature was individually approved by a judge, who was persuaded that there was probable cause to believe that it was uniquely used by a foreign power, the collection was unusual because it involved the systematic scanning of all Yahoo users’ emails. More typical surveillance court orders instead target specific user accounts.

[snip]

In fact, according to the government official and other people familiar with the matter, Yahoo was served with an individualized court order to look only for code uniquely used by the foreign terrorist organization, and it adapted the scanning systems that it already had in place to comply with that order rather than building a new capability.

Now, I don’t find this explanation all that plausible, because if there were real state-sponsored terrorists operating in the US, the US would be bombing the shit out of the country in question. Pakistan and Saudi Arabia sponsor terrorists, but they’re our friends and we try to overlook the way they foster terrorism. So I’m betting these aren’t real terrorists, but instead entities the government has told the FISA Court are terrorists to make it possible to approve things they otherwise would find questionable. Plus, it sounds so much cooler when you make such explanations than if you admit you were scanning all Yahoo users’ emails to search for hackers.

I’m going to wildarseguess that this really means the US had a line on Iranian Revolutionary Guard hacking techniques. I say that because the government has long argued that Iran (or at least, the Revolutionary Guard) is a terrorist organization so it can use fancy spy tools that have only been approved for terrorism uses. It’s a bullshit claim, but one the FISC has consistently approved going back years, probably to 2006 (and one OLC almost certainly approved under Stellar Wind). If this operation had happened two months later, after USA Freedom Act expanded the definition of foreign power to within two degrees of proliferators, they might have used that excuse, but back then, piggybacking a terrorist claim onto the use of the foreign government tie would provide the most impressive claim to need to scan domestically.

We even know the IRGC uses Yahoo, because that’s what NSA was collecting on in 2011 when someone spamouflaged key IRGC accounts at precisely the moment we were trying to entrap a top IRGC commander in the Scary Iran Plot.

And while the request to Yahoo came at a later time, we know that the US was aggressively going after Iranian hackers at least in late 2014 because they were targeting banks. DOJ would go on to indict a bunch of Iranians for, among other things, hacking a very small dam.

So rest assured, Yahoo users! FBI only made Yahoo scan your emails because it was hunting terrorists in your inbox.

But remember, that also means there are real state-sponsored terrorists — and not just ISIS wannabes — among us.

Update: Revolutionary for Republican fixed.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Deconfliction in Dragnet Databases

Hemisphere Deconfliction

I want to return to something that appears in both of the Hemisphere slide decks we’ve seen: Deconfliction.

In addition to helping law enforcement find burner phones and contact chains, using connections that include location, Hemisphere helps deconflict between multiple investigative teams.

When multiple teams are working the same targets — in war or criminal investigations — you need to be aware of what other teams are doing. In war, this helps to ensure you don’t shoot a friendly. In investigations, it helps to protect turf and combine efforts.

In investigations — especially drug or terrorism ones that rely on informants — it also helps to distinguish legally sanctioned crime — that of informants — from that which no law enforcement agency is directing. And, as the Declaration deck explains, Hemisphere checks new queries against previous ones, and emails requestors if someone has already chained on that contact.

  • Target numbers, as well as every number they call and that call them will be cross checked against other Hemisphere results
  • Notification will be by email if applicable
  • The email provides contact information for all requestors

In other words, in addition to the way it serves as a quick investigative tool, Hemisphere also helps drug investigators to avoid stepping on each others’ toes (or at least communicate better).

Then there’s this:

  • Sensitive case information is masked

This seems to suggest Hemisphere doesn’t, presumably, provide any hints about how the original investigator is conducting their investigation, whether suspected traffickers are bring run or not. That’s the kind of thing that would be “masked.” (Note, this suggests that whoever is running this database would have access to that masked information.)

I raise all this because it poses questions for other databases involving informants. As I have noted, FBI uses the phone dragnet (and therefore presumably the Internet dragnet in whatever form and geographic locale it still exists) to identify potential informants. And one thing FBI does with its back door searches during assessments assessments is review actual content collected under traditional FISA and FAA in its quest for informants.

These dragnet databases play a key role in the selection and recruitment of informants to use in terrorism investigations.

But then what happens?

The example of David Headley — who played a crucial role in one of the most lethal terrorist attacks since 9/11, the Mumbai attack, the early period of which while he served as an informant for the DEA — is instructive. The FBI likes to boast that Section 702 helped stop Headley’s plot against Danish cartoonists. But Headley’s case should, instead, raise real questions about how it is a terrorist can plan a complicated terrorist attack while his known terrorist colleagues, presumably, are being surveilled without detection by the people supposedly handling him.

We know that the metadata dragnets, at least, put some identifiers on a “defeat list.” There’s reason to suspect (in part from the syntax of redacted references to the defeat list) they do so not just for high volume numbers, but for sensitive numbers (perhaps Congress, for example). But I also think they may put informants on a defeat list too. That’s, in part, because if you didn’t do so their handlers would become two degrees from terrorist suspects, which might have all sorts of unintended consequences. That’s just an educated guess, mind you, but if I’m right it would have some interesting implications.

That doesn’t appear to have prevented DEA from tracking Manssor Arbabsiar, the Scary Iran Plotter (I assume he at least used to be an informant, because there’s little else that would explain why the cousin of a top Quds Force Member busted for drug possession would nevertheless get citizenship, and deconfliction discussions show up in what was probably his immigration file).

But it would raise really big questions in other cases.

One way or another they need to give informants special treatment in databases — as they apparently do in Hemisphere. How they do so, however, may have real consequences for the efficacy of the entire dragnet.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

How to Evaluate the HIG? Exploitation? Dead Bodies?

Carrie Johnson uses the arraignment of Abu Anas al-Libi as an opportunity to consider the success of the High Value Interrogation Group. She weighs the following details:

  • There haven’t been that many cases
  • Some governments refuse access to HIG
  • The group lacks leadership
  • The clean team model has problems

But I think we need to take a step back.

First, while Johnson gives a list of some of the interrogations conducted by HIG, it’s not comprehensive (for example, it doesn’t include Umar Farouk Abdulmutallab, with whom HIG was used in an ad lib capacity — it had just started; and it doesn’t include Manssor Arbabsiar). And it’s not clear we would know every time HIG gets used. For example, there were unnamed officials present at Ibragim Todashev’s death; given that we know HIG was used from the start with Dzhokhar Tsarnaev, it’s fair to at least ask whether any HIG members were present, and whether they remained in the room when Todashev was killed.

That expanded list of HIG interrogees quickly gets you to the question of consequences for HIG interrogees. Just from this possible list, you get questions such as,

  • If HIG was present at Todashev’s interrogation did they have a role in his killing?
  • Al-Libi was brought to New York because of health problems attributed to his choice to stop eating and drinking; did HIG use any food manipulation before this?
  • While I expect him to lose, Abdulmutallab’s appeal on competency grounds remains active; did HIG-induced solitary tip Abdulmutallab over the edge, as his appeal claims (he was reportedly not-altogether there when first detained)?

And these issues, plus the refusal of lawyers for Dzhokhar all could endanger convictions — and certainly, death penalties (which has already been taken off the table in al-Libi’s case) — in these cases.

Then there’s the question of what we’re after: the truth, or exploitation?

I’ve written about exploitation and HIG here, and Jason Leopold and Jeff Kaye showed how that — not necessarily truthful intelligence — was the goal of the torture program.

Exploitation is the use of interrogations not just to get intelligence, but also to support propaganda and/or generate informants. If exploitation is HIG’s goal, we might raise questions about whether both Abdulmutallab and Tsarnaev really implicated Anwar al-Awlaki of their own accord. In the former case, both non-HIG confessions did not implicate Awlaki as anything but an inspiration. In the latter, we know Tamerlan was also influenced by right wing propaganda. If exploitation is the goal, should we really believe the government story about the Scary Iran Plot, particularly given that most details of the “plot” — such as the restaurant targeted in Georgetown — came from our informant in the first place?

I don’t know the answer to these questions. But they seem to be ones we need to answer whether HIG works or not — to say nothing of whether a Democratic society should embrace HIG or not.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Remarkably Timed Spamouflage, Scary Iran Plot Edition

Screen shot 2013-10-14 at 8.36.40 PMWaPo has its latest Snowden scoop out, describing how the NSA collects hundreds of thousands of email contact lists daily.

The National Security Agency is harvesting hundreds of millions of contact lists from personal e-mail and instant messaging accounts around the world, many of them belonging to Americans, according to senior intelligence officials and top secret documents provided by former NSA contractor Edward Snowden.

I’ll come back to this part of the story later.

But further down in the story, it describes how a hack-spam attack on a member of Iran’s Quds Force overwhelmed NSA, forcing it to conduct emergency detasking of that person and several others between September 20 and October 20, 2011.

Spam has proven to be a significant problem for NSA — clogging databases with data that holds no foreign intelligence value. The majority of all e-mails, one NSA document says, “are SPAM from ‘fake’ addresses and never ‘delivered’ to targets.”

In fall 2011, according to an NSA presentation, the Yahoo account of an Iranian target was “hacked by an unknown actor,” who used it to send spam. The Iranian had “a number of Yahoo groups in his/her contact list, some with many hundreds or thousands of members.”

The cascading effects of repeated spam messages, compounded by the automatic addition of the Iranian’s contacts to other people’s address books, led to a massive spike in the volume of traffic collected by the Australian intelligence service on the NSA’s behalf.

After nine days of data-bombing, the Iranian’s contact book and contact books for several people within it were “emergency detasked.”

This means that this target and “several people” within this Quds Force target’s contact books (and possibly the primary target’s email) were detasked in precisely the same time period as our informant, Narc, was entrapping Manssor Arbabsiar, of Scary Iran Plot fame.

Remember, if you read the plain language of some of the transcripts and other materials, it appears possible the money for this op involved another government.

There’s a similarly odd passage in the quotations purportedly showing that Shahlai was being funded for this by Iran.

[Arbabsiar] this is politics, ok … it’s not like, eh, personal … This is politics, so these people they pay this government … [Shahlai’s] got the, got the government behind him … he’s not paying from his pocket. [ellipses original]

Now this passage, unlike the last two (which are translations from Farsi), might best be explained by Arbabsiar’s less than perfect English. With that caveat, though, the bolded passage appears to suggest not that Iran was paying QF, but that QF was paying some other government (or someone else was paying Iran).

There are later details that also don’t make sense if this was an Iranian op.

In other words, during precisely the period when the most bizarre, improbable plot to hit Hollywood in years happens, some of the potential targets have their surveilled communications spamouflaged by an outside entity. (h/t to Frank N Furters for first calling this spamouflage.)

But I think our Intelligence Community is too dull to find that worthy of more consideration.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Scary Iran Plotter Gets 25 Years

The prosecutors in Manssor Arbabsiar’s case succeeded in convincing Judge John Keenan that his was a real plot that must meet a harsh sentence to deter others from being entrapped in a US scheme involving fake drug cartel members. He got the full 25 years the government sought.

U.S. prosecutors sought the statutory maximum sentence of 25 years for Arbabsiar, saying in a court filing May 2 that the “seriousness of this offense and importance of deterrence in this context cannot be overstated.”

Manhattan U.S. Attorney Preet Bharara in a statement called Arbabsiar “an enemy among us” and a “key conduit for, and facilitator of, a nefarious international plot” to kill the ambassador and as many innocent bystanders needed to finish the job.

Lawyers for Arbabsiar had sought a lower sentence of 10 years, contending he had provided assistance to U.S. authorities after his arrest and citing purported mental health issues.

But Keenan emphasized the need to send a message to those who might consider future crimes like Arbabsiar’s “will not be tolerated” in the United States.

“In a case like this, deterrence is of extreme importance,” Keenan said.

Once all the relevant transcripts have been docketed, I’ll circle back to this issue. But for the moment, I wanted to point to three paragraphs in the government’s sentencing memorandum.

Defense counsel also argues that Arbabsiar’s assistance to the Government following his arrest demonstrates his “sincere remorse,” that because he is remorseful he will not re-offend and therefore that a sentence of ten years is sufficient. (Def. Mem. at 23). To the contrary, Arbabsiar’s assistance to the Government does not warrant a sentence below the 25-year statutory maximum. First, Arbabsiar’s cooperation, at best, was incomplete. While Arbabsiar spent approximately ten days describing to law enforcement agents his involvement and that of his Iranian military co-conspirators in the assassination plot, and placed several recorded telephone calls to his co-conspirator Shakuri at the direction of the agents, Arbabsiar thereafter abruptly refused to cooperate further despite the Government’s request that he continue to do so.3 Nor was Arbabsiar available to the Government as a testifying witness against his coconspirators. Therefore, Arbabsiar’s assistance to the Government was ultimately of limited usefulness in connection with the prosecution of other wrongdoers.

Second, and perhaps more importantly for these purposes, Arbabsiar’s limited cooperation did not represent a determination to make a clean break with his past or to dramatically change his life in a manner that reflects true remorse. Indeed, Arbabsiar not only decided to cease his proactive assistance prematurely, he never followed through thereafter by proffering with the Government or by making a full and complete admission to the Government about his criminal activities. To the contrary, he filed a false affidavit in connection with his suppression motion in which he lied about the circumstances in which he came to provide information to the agents – the very circumstances he now casts as evidence of his sincere remorse. Arbabsiar’s limited cooperative efforts therefore do not call for a sentence below the 25 years of imprisonment called for by the Guidelines, because they do not reflect true remorse or otherwise suggest a lessened necessity for individual deterrence, a greater likelihood of rehabilitation or any other basis for a non-Guidelines sentence.

3 Defense counsel asserts that the Government declined Arbabsiar’s efforts to work in an undercover capacity in part because it “no doubt realiz[ed] [the defendant] was mentally ill . . . .” (Def. Mem. at 22). This assertion is baseless and inaccurate and should be disregarded. The agents working with Arbabsiar following his arrest had no concerns about his mental health. As set forth in the October 2012 report of Dr. Gregory Saathoff, none of the agents who were with Arbabsiar consistently for nearly two weeks ever observed behavior suggesting that Arbabsiar suffered from a mental illness.

While Arbabsiar’s lawyer’s filing is not yet docketed, these paragraphs suggest several things:

  • The government wanted Arbabsiar to continue cooperating, but refused his offer to serve in an undercover capacity.
  • The government claims Arbabsiar lied in his still sealed affidavit describing why the confession he gave during the 12 days he had no legal representation should be thrown out.

Ultimately, the 25 year sentence is largely punishment for these two presumed insults to the FBI.

Should it be?

I’ve raised questions about Arbabsiar’s treatment here and here. Even just the substantive claims his lawyer, Sabrina Shroff made, seem somewhat substantive. And the lawyer psychiatrist FBI brought in to refute claims of Arbabsiar’s impairment, Gregory Saathoff, is increasingly serving as the Bureau’s go-to hack for such functions.

More interestingly, the plea deal happened after Shroff started raising questions about the report a High Value Detainee Group scientist made about Arbabsiar’s interrogation. Boom. Plea deal, Arbabsiar’s allegedly deceitful affidavit never gets unsealed, and he goes away for long enough to prevent anyone from learning his side of the story.

Then there’s the question of cooperation (which hopefully will be made more clear in the future). They wanted him to keep cooperating (perhaps making calls to Iran that were not producing the desired effect), but didn’t want him to serve in an undercover capacity (remember, there was a deconfliction issue that came up in Arbabsiar’s naturalization application that suggests he may have done something similar in the past).

Again, we need more detail, but it suggests certain things about what the government needed Arbabsiar for — to tell a scary story — and what it didn’t need Arbabsiar for — to infiltrate IRGC. Which is interesting, given that Arbabsiar’s cousin isn’t on this list of top Iranians involved in international terrorism.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Exploitation and High Value Interrogation Group

Quick quiz:

What was the first count that Umar Farouk Abdulmutallab — the UndieBomber — was found guilty of?

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Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Dzhokhar Tsarnaev: The Big Issue Is Not Miranda, It’s Presentment

Particularly given Lindsey Graham’s persistent tweeting yesterday that “the last thing we may want to do is read Boston suspect Miranda Rights,” there was a lot of discussion in the moments after Boston Marathon bombing suspect Dzhokhar Tsarnaev was captured last night about whether he would be read his rights.

At first, there were reports he would be. But then DOJ announced he would not be read Miranda immediately; they would invoke the public safety exception to question him.

“The suspect is en route to the hospital for immediate treatment,” the official tells TPM’s Sahil Kapur. “But we plan to invoke the public safety exception to Miranda in order to question the suspect extensively about other potential explosive devices or accomplices and to gain critical intelligence.”

As of about 40 minutes ago, he had still not been read his rights.

Now, thus far, I’m actually not that worked up about Miranda rights (though I may get there soon). As Orin Kerr explains, the public safety exception is a legally recognized law, and Miranda itself only limits what can be admitted as testimony against Dzhokhar in his trial (I’m betting he’ll plead guilty in any case). The government appears to have so much evidence against him in any case, any confession he makes will likely not be necessary to convict him.

Mind you, as Charlie Savage reported two years ago, the government has been institutionalizing longer delays before they give Miranda warnings, most notably with people they (or foreign proxies) interrogate overseas first, followed by a clean team Mirandized interrogation. And as the reference to “gain[ing] critical intelligence” above suggests, the Obama Administration is stretching the intent of pre-Miranda interrogations to include more substantive interrogation (update: Emily Bazelon also made this point).

But here in the US, the delays on Miranda warnings aren’t that long. The best–quite similar–example is the 2009 UndieBomber, who was interviewed for about 50 minutes under a public safety exception when he was captured. That entire interrogation was deemed admissible and in fact formed a significant part of the opening arguments in his trial (which didn’t get much further than opening arguments before he plead guilty). So the UndieBomber’s case is one reason the Administration is confident they could question Dzhokhar without Mirandizing him at first (though the length of time has gotten far longer than used with the UndieBomber).

There’s a precedent from the UndieBomber I find more troubling though. The judge in that case also allowed the use of UndieBomber’s statements from the hospital after he had been given a fair amount of sedation. While there was a dispute about how much he got and what kind of effect that might have had, conversations he had with a nurse were also used in the opening arguments of the trial. The two issues together — a suspect interviewed without a lawyer after he’s been given serious drugs, both of which will be apply to Dzhokhar, as well — is troubling on legal, humanitarian, and practical grounds. The High-Value Interrogation Group had already been brought in last night, which suggests he may well be asked questions while in precarious medical state.

But the big issue, in my opinion, is presentment, whether he is brought before a judge within 48 hours. In addition to stretching Miranda, the government has also been holding and interrogating suspects for periods — up to two weeks for American citizens and far longer for non-citizens — before they see a judge. Not only does this postpone the time when they will be given a lawyer whether they ask or not (because judges are going to assign one), but it gives the government an uninterrupted period of time to use soft coercion to get testimony and other kinds of cooperation.

In my opinion, two of the most troubling cases like this, both involving naturalized citizens accused of terrorism, are Faisal Shahzad and Manssor Arbabsiar.

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Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

What Kind of Custody Is It When You Secretly Hold an American at a Military Base?

Here’s a fairly minor point about the Gregory Saathoff report on Manssor Arbabsiar, the Scary Iran Plotter.

For the 12 day period when he was being secretly interrogated without a lawyer, he was being held at a military base.

Although at times Mr. Arbabsiar smoked inside the room, he often was escorted outside and on at least one occasion took a walk with agents around the military base.

Let me be clear: Arbabsiar’s arrest was approved by a US Magistrate. He was clearly arrested under civilian law.

And I’m not surprised the government held the cousin of a Quds Force member on a military base while they prepared to make an international incident out of his case. I’m sure Arbabsiar was nowhere near the first American citizen interrogated while in civilian custody at a military base.

But it’s coupled with the other part of this where it begins to get unsavory: the part where Arbabsiar had no lawyer and his legal team is now contesting whether he legally waived his right to a lawyer and presentment (and as I’ll explain if I ever get around to writing that post, I think their claim may have more merit than I originally did). And the part where the government didn’t check in with the Magistrate or have Arbabsiar medically examined until a week after he had been arrested.

So if the defense arguments about coerced waivers hold up (remember, we’re still seeing just part of what they’re complaining about), while a busy Magistrate knew he was in custody, Arbabsiar was otherwise in a black hole on a military base (though likely a quite pleasant one, with his own apartment) for a week to 12 days.

During the debate about the NDAA, people insisted we would never see a hybrid kind of detention where US citizens get indefinitely held, but in civilian custody. That’s not what happened to Arbabsiar; again, his detention had been approved by a Magistrate. But we are clearly inching closer to that kind of hybrid.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Why Would the US Government Have Deconfliction Issues with Manssor Arbabsiar in 2010?

Before I look at the other ways Gregory Saathoff’s report opining that Manssor Arbabsiar is not manic hurts the government’s case, I want to discuss a rather curious citation Saathoff includes.

Troutman, D. (2010, January 13). Email to Virginia Villareal re: Deconfliction (in reference to a national security concern regarding Manssor Arbabsiar), p. 1.

As you’ll recall, the government claims that Arbabsiar first came on their radar in May 2011 when a DEA Informant claimed that Arbabsiar contacted him to arrange a kidnapping.

And yet, according to this, someone was emailing Virginia Villareal (there’s a Customs and Border Patrol Officer currently in San Antonio by that name) in January 2010 about a national security issue involving Arbabsiar?

Deconfliction is the term used for when agencies with overlapping interests sort out their turf–particularly if the agencies are using weapons or informants. The timing indicates that it came during–and probably was part of–Arbabsiar’s naturalization process in 2009-2010.

DHS: U.S. Citizenship and Immigration Services (USCIS).(2009, June 24). Memorandum subject:IBIS hit resolution for applicant: Manssor Arbabsiar, p. 1.

DHS: USCIS. (2010, April 23). N 652, naturalization interview results, pp. 1-8.

DHS: USCIS. (2010, August 6). N-400, application for naturalization, pp. 1-10.

DHS: USCIS. (2010, August 30). Form N-445, notice of naturalization oath ceremony, pp. 1-2.

And at one level, it’s not all that surprising that there would be a national security concern as Arbabsiar applied for citizenship: his cousin is a high ranking Quds Force member. Indeed that–plus Arbabsiar’s criminal background–is one of the reasons it’s hard to believe he even got citizenship, given that equivalent issues can get a Green Card holder deported. And he appears to have done that without paying for an immigration attorney (he complained to Saathoff he had to pay for an attorney for his son during this period, but not an immigration attorney, though they can be inexpensive).

So at the very least, this suggests at least one other agency was aware of Arbabsiar as he went through the immigration process.

But I do find the timing rather interesting given the way Saathoff describes Arbabsiar’s actions that year. He was taking many trips to Iran–purportedly to bring cash back from real estate investments there and he was living in Corpus Christi, away from his wife. (Note, IBIS is the database the government uses to check people as they cross borders to make sure they’re not terrorists or drug runners, which is presumably why the entry above and a 2012 one were listed as sources.)

In my interviews with Mr. Arbabsiar and in reviewing documents that were not cited by Dr. First at the time of his declaration, Mr. Arbabsiar acknowledged that this was in fact a period of significant international activity. In addition to attaining his United States citizenship, during early 2010 he spent most of his time apart from his wife living mostly in Corpus Christi or travelling overseas. In 2010, he flew to Iran on four separate occasions in order to secure and bring back rental money from his Iranian property holdings. He estimated that during these trips he brought back up to $8,000-$9,000 on each trip.

[snip]

In his August 4, 2012 interview, he recalled a 2009 trip to Iran where he obtained hair transplant surgery in Iran because it was less expensive than in the U.S. With decreasing revenues in the U.S., he made four separate trips to Iran in 2010 in order to bring back funds from his Iranian investment properties.

[snip]

In fact, 2010 was a year of significant international activity for Mr. Arbabsiar with more international air travel for him than was recorded for any other year in the previous decade. He took four separate flights to Iran during 2010 and also attained his U.S. citizenship and passport. In his interviews with me, he reported that he would bring back money from Iranian investments as well as Iranian goods for his wife and son.

Then his business partner died and yet, in spite of the fact he was financially strapped, he dropped (or rather, lost) the car business.

By late 2010, following the death of his business partner in July, he had moved from Corpus Christi to Austin in order to live at home with his wife. In our September 26 interview, he recalled: “After Steve died, my life changed a lot. Up until that point I was spending some time in Austin and some time in Corpus. But after he died, I didn’t want to do the car business [in Corpus Christi] any more.

[snip]

Living in both Austin and Corpus Christi during that year, it was only late in the year and following his friend’s death in July that he finally moved to Austin to live with his wife where he engaged in activities including landscaping around the home and planting fruit trees.

His wife described him during as depressed, sitting at home, in this later period.

For this example, he relies on Ms. Arbabsiar’s wife’s report that “for roughly one year around approximately 2010, Mr. Arbabsiar was severely depressed, isolating himself in his bedroom and rarely getting out of bed except to pace around his bedroom and chain smoke.”

It was after that depression and a period when he was in medical treatment in late 2010 that Arbabsiar reached out to his cousin to build an “export business.”

My life was going bad – I had lost my friend and my dad – my cousin, he took advantage of me. I hate to say that, and I trusted him – my whole family, they should help me. I wanted to do a good business, an export business.

Remember, in addition to talking to Narc about killing the Saudi Ambassador, Arbabsiar was also talking about dealing drugs.

Again, all of this might suggest nothing more than an appropriate awareness of Arbabsiar’s cousin’s identity (but even so, that suggests the myth that Arbabsiar approached Narc out of the blue is just that–a myth).

But Arbabsiar was a very unlikely person to have gotten his citizenship when and how he did, particularly without the apparent assistance of an immigration lawyer. And between the time the government presumably identified Arbabsiar as an Iranian with ties to Quds Force and the time he ultimately got his citizenship, he made a lot of trips to Iran to get cash. Then, once he got citizenship, he lost his business and went into a funk and then–went to, or went back to, his cousin to launch “a good business, an export business,” and once again he returned to the States with thousands of dollars in cash, just like in 2010. During the entire time the FBI was purportedly watching him set up an assassination attempt, according to the Corpus Christi cops, they never once contacted those cops, not even to check the criminal record that their dead tree files showed.

It sure sounds like the government was following Arbabsiar a lot longer than the 18 months they claim.

But then the report also reveals how Arbabsiar first found Narc.

Mr. Arbabsiar stated that the Mexican woman that he contacted to help identify someone to carry out the assassination attempt on the Saudi Ambassador had a younger sister with whom he had a sexual relationship in 1992, while he was married to his third wife.

So maybe his relationship with the DEA goes back to 1992, when he fucked his way into the family?

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.