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9th Circuit Rules that Mohamed Osman Mohamud Might Have Killed Like a Bunch of White Mass Killers Had the FBI Not Intervened

The last paragraph of a 9th Circuit Judge John Owens opinion rejecting Mohamed Osman Mohamud’s appeal reads,

Many young people think and say alarming things that they later disavow, and we will never know if Mohamud—a young man with promise—would have carried out a mass attack absent the FBI’s involvement. But some “promising” young people—Charles Whitman, Timothy McVeigh, and James Holmes, to name a few from a tragically long list—take the next step, leading to horrific consequences. While technology makes it easier to capture the thoughts of these individuals, it also makes it easier for them to commit terrible crimes. Here, the evidence supported the jury’s verdict, and the government’s surveillance, investigation, and prosecution of Mohamud were consistent with constitutional and statutory requirements.

Mohamud had appealed on several grounds. Generally, he argued that he had been entrapped, that Section 702 was unconstitutional, and that that evidence should be thrown out because he was not informed in timely fashion.

The court was (as they had been in the hearing) most sympathetic to Mohamud’s entrapment case, but found that even though he was first approached before he turned 18 (Mohamud was 19 when he pressed a button believing it would set off a bomb at Portland’s Pioneer Square), the entrapment was less than what happened with James Cromitie, a case the 2nd Circuit upheld.

Nevertheless, the court found that a jury might reasonably find that Mohamud was predisposed to commit a bombing, even before government incitement.

In sum, viewing the evidence in the light most favorable to the government, we cannot say that “no reasonable jury could have concluded that [Mohamud was] predisposed to commit the charged offense[].” Davis, 36 F.3d at 1430. We therefore conclude that the district court properly rejected his defense of entrapment as a matter of law.

The court was less sympathetic to Mohamud’s FISA challenge.

But their argument on this front is pretty weird. The court dodges any ruling on a foreign intelligence exception that the government claimed.

Because the incidental collection excepts this search from the Fourth Amendment’s warrant requirement, we need not address any “foreign intelligence exception.”

Instead, it invokes the Third Party doctrine, suggesting that because Mohamud wrote to someone — anyone! —  to suggest he had a diminished expectation of privacy in his side of emails.

It is true that prior case law contemplates a diminished expectation of privacy due to the risk that the recipient will reveal the communication, not that the government will be monitoring the communication unbeknownst to the third party. See, e.g., United States v. Miller, 425 U.S. 435, 443 (1976); United States v. White, 401 U.S. 745, 752 (1971); Hoffa v. United States, 385 U.S. 293, 302 (1966). While these cases do not address the question of government interception, the communications at issue here had been sent to a third party, which reduces Mohamud’s privacy interest at least somewhat, if perhaps not as much as if the foreign national had turned them over to the government voluntarily. See also Hasbajrami, 2016 WL 1029500 at *11 & n.18 (observing same distinction).

The court then admits that the sheer volume of incidental collection under Section 702 might be a problem, but suggests that minimization procedures thereby acquire more importance (while bracketing the problem of post-collection querying — also known as back door searches — the FBI conducts all the time).

Mohamud and Amici also contend that the “sheer amount of ‘incidental’ collection” separates § 702 from prior cases where courts have found such collection permissible. We agree with the district court’s observation that the most troubling aspect of this “incidental” collection is not whether such collection was anticipated, but rather its volume, which is vast, not de minimis. See PCLOB Report at 114 (“The term ‘incidental’ is appropriate because such collection is not accidental or inadvertent, but rather is an anticipated collateral result of monitoring an overseas target. But the term should not be understood to suggest that such collection is infrequent or that it is an inconsequential part of the Section 702 program.”). This quantity distinguishes § 702 collection from Title III and traditional FISA interceptions. However, the mere fact that more communications are being collected incidentally does not make it unconstitutional to apply the same approach to § 702 collection, though it does increase the importance of minimization procedures once the communications are collected.24

24 To the extent that Amici argue that the incidental overhear doctrine permits the unconstitutional and widespread retention and querying of the incidentally collected information, that issue is not before us.

Which brings us to this passage assessing the value of those minimization procedures with increased import.

While Executive Branch certification contributes some degree of further protection, it does not weigh heavily. Typically in the Fourth Amendment context, review from a neutral magistrate is considered the appropriate check on the Executive, which otherwise may be motivated by its interest in carrying out its duties. See, e.g., Leon, 468 U.S. at 913–14 (explaining that in obtaining a search warrant, a neutral magistrate is “a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime’” (citation omitted)). Under these circumstances, where the only judicial review comes in the form of the FISC reviewing the adequacy of procedures, this type of internal oversight does not provide a robust safeguard. The government notes that in In re Sealed Case, 310 F.3d 717, 739 (FISA Ct. Rev. 2002), the FISA Review Court observed that Congress recognized that certification by the AG in the traditional FISA context would “‘assure [ ] written accountability within the Executive Branch’ and provide ‘an internal check on Executive Branch arbitrariness.’” (citation omitted). However, as described above, § 702 differs in important ways from traditional FISA, and a mechanism that might provide additional protections above and beyond those already employed in a traditional FISA context provides far less assurance and accountability in the § 702 context, which lacks those baseline protections. See also Clapper, 133 S. Ct. at 1144–45.

Accordingly, although we do not place great weight on the oversight procedures, under the totality of the circumstnces, we conclude that the applied targeting and minimization procedures adequately protected Mohamud’s diminished privacy interest, in light of the government’s compelling interest in national security,

In other words, in the section assessing incidental collection, the court points to the import of minimization procedures. But when it comes to minimization procedures, it does “not place great weight” on them, because of the government’s compelling interest in national security. It is ultimately an argument about necessity based on national security.

Ultimately, then, the court argues that it was okay for the government to read Mohamud’s emails without a warrant, in spite of its admission of weaknesses in the government’s argument about a diminished expectation of privacy and minimization procedures. It does so by invoking three older (though still young) white mass killers, all of whom worked domestically.

While the court definitely relies on targeting rules limiting 702 to someone overseas, with its seeming admission that both its Third Party and its minimization procedure arguments are inadequate (as well as its decision that none of this has to do with a foreign intelligence exception), it gets frightfully close to making an argument that doesn’t distinguish foreign communications from domestic.

Perhaps Owens invokes those three white men to emphasize, unconvincingly, that that doesn’t mean Mohamud was targeted in a way a white non-Muslim wouldn’t be, but given the legal argument that’s left, the opinion is all the more troubling.

Update: Orin Kerr — who knows a lot more about law than I do — doesn’t like this opinion either. Among other common impressions, he’s not happy that Owens borrowed from a not really well written District opinion.

NYPD’s Fearmongers Are Arguing It’s More Useful to Spy on 2nd Graders than Disrupt Real Plots

Chuck Schumer, the NYDN, and the NYPost keep up their attacks on the AP’s exposure of the NYPD’s spying program. Increasingly, NYPD’s fearmongers are getting cornered on the question of efficacy.

Schumer, rarely a courageous man, made full use of the passive when he tried to claim everyone knew the spying program makes NY safer.

There is nothing wrong with the NYPD collecting and assessing publicly available information from New York, New Jersey, the other 48 states or around the world in the effort to prevent another terror attack like 9/11. In fact, it is widely understood that the NYPD’s actions have kept us safer. Looking at public information and following leads is perfectly acceptable as long as any one group, in its entirety, is not targeted based only on its religious or ethnic affiliation. [my emphasis]

Nevermind that the NYPD uses techniques–like informants and permanent cameras–that aren’t exactly available to the public. Nevermind that Schumer’s backing himself into a corner with his new caveat that profiling is okay so long as not the entire ethnic group is profiled (though arguably, they are).

Schumer proves unable to say, in the affirmative, that he knows this makes NY safer. And he ought to consider that question seriously.

More offensive is the NYPost’s insinuation that the AP is just in this for a Pulitzer.

Columbia is also where they keep the Pulitzers in the off-season; American journalism’s most treasured self-affirmation program is more or less run from the university’s J-school. Since the awards are soon to be presented, and since the AP’s lust for one is almost comically transparent, its show-the-flag campus visit is wholly unsurprising.

[snip]

Strip away the emotive rhetoric and what’s left is a series of stories over several weeks that show pretty clearly that the NYPD works very hard to keep the city safe — operating an aggressive and imaginative program, but staying well within both the law and the bounds of post-9/11 propriety from beginning to end.

Perspective matters.

At least twice in the decade before the NYPD program began, Islamist sleeper agents attacked New York City. The first time, six people died; the second, thousands.

Since then, the department has disrupted a number of Islamist-initiated plots; there is no way of telling how many more were never undertaken because the city is so aggressively anti-terrorist. And there have been no terror-related fatalities since 9/11.

That could change tomorrow — presumably the AP’s Pulitzer prospects would tail off sharply if it did — but that would prove only that there are no guarantees in counterterrorism.

Here, the NYPost is just flat out wrong–or should be.

If there were a terrorist attack tomorrow, the inevitable commission would finally give the NYPD spying program the scrutiny it needs, scrutiny which the AP has tried to offer. And that commission will discover that the NYPD has spent its time spying on girls’ and grade schools, hunting out Muslims at Jewish businesses, scamming whitewater rafting trips off of taxpayers.

Sure, such efforts have led to hyped busts of folks it took 31 months for the NYPD to coach how to drill holes into a pipe. Such busts only discredit Mayor Bloomberg, Ray Kelly, and ultimately everyone defending this program.

What those efforts didn’t find were the real terrorist attacks. They didn’t find Najibullah Zazi and they didn’t find Faisal Shahzad–even though both were right under their nose. Read more

How Many Other Journalists Does the FBI Consider Informants?

Yesterday, the Center for Public Integrity revealed the contents of a secret FBI memo treating a top ABC journalist–who turned out to be Christopher Isham (currently CBS’ DC bureau chief)–as a confidential source for a claim that Iraq’s intelligence service had helped Timothy McVeigh bomb the Murrah Federal Building.

Isham claims he alerted the FBI about the story because there were indications there might be follow-on attacks.

Christopher Isham, a vice president at CBS News and chief of its Washington bureau, later issued a statement denouncing the claims, revealing himself as the subject of the report. Mr. Isham, who worked for ABC News at the time of the bombing, said he would have passed information to the F.B.I. only to try to verify it or to alert the bureau to word of a possible terrorist attack.

“Like every investigative reporter, my job for 25 years has been to check out information and tips from sources,” Mr. Isham said in a statement released through a CBS spokeswoman. “In the heat of the Oklahoma City bombing, it would not be unusual for me or any journalist to run information by a source within the F.B.I. for confirmation or to notify authorities about a pending terrorist attack.”

Only, it turns out that Vince Cannistraro–who had told ABC the story while serving as a consultant for them and had, in turn, been told the tale by a Saudi General–had already told the FBI himself.

That source, Vincent Cannistraro, a former Central Intelligence Agency official who was a consultant for ABC News at the time, said in an interview that Mr. Isham had done something discourteous, perhaps, but not improper.

“I was working for ABC as a consultant,” he said. “I was not a confidential source.”

Mr. Cannistraro added, however, that he would have preferred it if Mr. Isham had told him that he had passed along the tip. “I was not told that Chris was also going to talk to them. And he certainly didn’t tell me.”

Now, aside from Isham ultimately revealing that his story came from Cannistraro, it seems to me the ethical questions on the part of ABC and Isham are misplaced. Isham’s call to the FBI to confirm or deny a tip really can’t be faulted.

The problem seems to lie in two issues: how ABC treated Cannistraro, and how the FBI treated Isham.

First, Cannistraro fed ABC an inflammatory tip, apparently without confirming it. Given that he was a consultant to ABC, was it his job to second source that material? As it happens, since both Cannistraro and Isham reported the tip to the FBI, it worked like a stove pipe, giving the FBI the appearance of two sources when the story derived from the same Saudi General. And how much other bullshit did Cannistraro feed ABC over the years? It’s not even necessary that Cannistraro do this deliberately–if sources knew he was an ABC consultant, particularly if they knew the information would be treated this way, it’d be easy to stovepipe further inflammatory information right to the screens of the TV. And who owns the source relationship, then, the understanding that the source can be burned for planting deliberate, inflammatory misinformation designed to stoke an illegal war?

In other words, the way ABC treated Cannistraro as a consultant muddled journalistic lines in ways that may have led to less than responsible journalism.

It wouldn’t be the first time networks’ relationships with “consultants” had compromised their reporting.

And then there’s the FBI. Anonymous sources are reassuring the NYT that Isham wasn’t really treated as a snitch, even though the report that CPI has seems to treat him as such. This seems more like FBI trying to cover its tracks–reassure other journalists the FBI isn’t typing up source reports every time a journalist calls the FBI for confirmation of a tip–than anything else. So how often does the FBI, having been asked to confirm information by a journalist, start an informant file on that tip?

And what is the relationship that evolves between the FBI and that source over the years? That is, if the FBI treats journalists who confirm information with them as sources, filing reports like this one that, if revealed, would reflect badly on the journalist, then what will the journalist do in the future when the FBI feeds him shit?