Yet Another Warning from Michigan: FBI Busted Plot to Kidnap “That Woman”

As you’ve probably heard by now, the FBI foiled a plot to kidnap Michigan’s Gov. Gretchen Whitmer. The conspirators intended to move her across state lines to Wisconsin where she would be tried by a kangaroo court for “treason.”

Timing of the plot and events which may have inspired this idiocy:

10-MAR-2020 — Governor Whitmer issued Executive Order 2020-4, declaring a state of emergency in Michigan to address the COVID-19 pandemic.

13-MAR-2020 — Gov. Whitmer issued Executive Order 2020-5 canceling all events and assemblies over 250 people, ending on Sunday, April 5 at 5 p.m. Michigan’s public schools and churches were closed with this order.

16-MAR-2020 — Gov. Whitmer issued Executive Order 2020-9, closing places of public accommodation including restaurants, bars, gymnasiums, theaters through March 30.

20-MAR-2020 — Militia group in Michigan brought to attention of FBI when group sought addresses of local law enforcement. A Confidential Human Sources (CHS) was identified during FBI interview with a concerned militia member.

23-MAR-2020 — Gov. Whitmer issued “Stay Home, Stay Safe” Executive Order 2020-21, directing all Michigan businesses and operations to temporarily suspend in-person operations that are not necessary to sustain or protect life, effective immediately.

27-MAR-2020 — During a press conference discussing Pence’s work as head of the White House Coronavirus Task Force, Trump tells VP Pence, “Don’t call the woman in Michigan.”

01-APR-2020 — Gov. Whitmer issued Executive Order 2020-33 expanding Executive Order 2020-4, declaring both a state of emergency and a state of disaster across the state of Michigan.

07-APR-2020 — Michigan legislature adopted a concurrent resolution to extend the states of emergency and disaster declared under the Emergency Management Act until April 30, 2020.

09-APR-2020 — First extension of Stay-Home order until May 1 due to rising COVID cases.

15-APR-2020 — Drive-in “Operation Gridlock” Protest in capital city Lansing, violating Stay-Home order; organizer received financial assistance from DeVos family.

17-APR-2020 — Trump tweeted, “LIBERATE MICHIGAN!

24-APR-2020 — Second extension of Stay-Home order until May 15 due to increased COVID cases. Some restrictions were lifted on outdoor businesses. Masks ordered for all residents in public spaces.

30-APR-2020 — Armed protest in state capitol building

06-MAY-2020 — GOP-majority state house and state senate file suit against Gov. Whitmer (Michigan House of Representatives and Michigan Senate v. Whitmer)

08-MAY-2020 — Third extension of Stay-Home order until May 28. Some restrictions lifted on manufacturing as of 11-MAY-2020 as part of a phased re-opening.

21-MAY-2020 — Michigan Court of Claims ruled in favor of Gov. Whitmer in Michigan House of Representatives and Michigan Senate v. Whitmer; the state of emergency would continue without legislative approval.

22-MAY-2020 — Fourth extension of Stay-Home order until June 12. State of emergency also extended to June 19. Two northern Michigan regions were able to reopen, allowing restaurants and bars to operate at 50% capacity. Groups of 10 were permitted across the state.

01-JUN-2020 — Stay-Home order lifted with restrictions, ex. groups of 100 outdoors, outdoor fitness classes, etc.

06-JUN-2020 — Meeting of ~15 co-conspirators in Dublin, Ohio.

08-JUN-2020 — Restaurants allowed to reopen and operate across the state at 50% capacity with other mandatory changes like masks and social distancing.

08-JUN-2020 — On reopening, Harper’s brewpub restaurant in East Lansing, Michigan, violated several of the remaining emergency restrictions. Over the next month at least 185 cases of COVID will have been traced back to this facility’s reopening.

14-JUN-2020 — A key co-conspirator and a militia group member meet at a militia field training exercise.

15-JUN-2020 — Stay-Home order ends. Some restrictions remain on events and assemblies as well as public accommodation facilities.

18-JUN-2020 — Gov. Whitmer issued Executive Order 2020-127, again finding that the COVID-19 pandemic constitutes a disaster and emergency throughout the State of Michigan.

18-JUN-2020 — Co-conspirators met with militia group leadership at the Second Amendment rally at the state capitol in Lansing, Michigan.

20-JUN-2020 — Several co-conspirators met at a co-conspirator’s business in Grand Rapids for planning.

25-JUN-2020 — Key co-conspirator streams a rant about Gov. Whitmer to a private Facebook group.

28-JUN-2020 — Several co-conspirators met in Munith, Michigan for a tactical training
exercise.

04-06-JUL-2020 — Holiday weekend partying results in uptick of COVID cases.

10-12-JUL-2020 — Co-conspirators attended a field training exercise in Cambria, Wisconsin which included attempting to make IEDs with balloons, BBs, and black powder.

13-JUL-2020 — Gov. Whitmer issued Executive Order 2020-147, mandating the wearing of masks to contain spread of COVID-19.

18-JUL-2020 — Co-conspirators met in Ohio, discussed attacking Michigan State Police and shooting up Gov. Whitmer’s vacation home in western lower Michigan.

27-JUL-2020 — Co-conspirators discussed plan to kidnap Gov. Whitmer at vacation home, transport her to Wisconsin, and prosecute her.

09-AUG-2020 — Co-conspirators discussed obtaining intelligence about Gov. Whitmer’s Lansing home as well as attacking her at that site.

18-AUG-2020 — Co-conspirators discussed surveillance of Gov. Whitmer’s vacation home and getaway plans.

23-AUG-2020 — Co-conspirators discussed surveillance while meeting in Lake Orion, Michigan.

29-AUG-2020 — Co-conspirator and CH-2 surveil Gov. Whitmer’s vacation home.

30-AUG-2020 — Co-conspirators discuss findings of surveillance.

12-13-SEP-2020 — Co-conspirators meet in Luther, Michigan for field training exercise and practice making and using IEDs as well as tighten planning and coordination.

14-SEP-2020 — Co-conspirators discuss executing plan in late October, well before Election Day.

30-SEP-2020 — Co-conspirators discuss acquiring taser for plan.

02-OCT-2020 — Key co-conspirator confirms acquisition of taser.

06-OCT-2020 — In a 4-3 ruling along partisan lines, Michigan Supreme Court determined Gov. Whitmer did not have the authority to issue COVID-related executive orders after April 30, 2020.

07-OCT-2020 — Co-conspirators planned to meet to make payments on equipment.

07-OCT-2020 — Co-conspirator Garbin’s house was raided.

09-OCT-2020 — Arrest of ‘Wolverine Watchmen’ conspirators announced, complaint published.

I use word inspired loosely, because there doesn’t seem to be a direct link between the most aggressive emergency action and the inception and progress of this seditious terror plot. The emergency Stay-Home order was lifted the week the conspirators began planning; what restrictions remained clearly did not stop these men from traveling, meeting, organizing, and planning.

They also didn’t have a legitimate beef about the effectiveness of the governor’s actions, any more so than the polarized and irrational MIGOP-controlled state legislature. Eleventh largest by population, Michigan was hit hard early in the pandemic, now ranking 10th in overall COVID-19 deaths. But since Whitmer declared the state of emergency and enacted the Stay-Home order along with a phased reopening process, the state’s daily death toll has plummeted and its cases per million is now 40th in the country.

You’ll recall from posts I wrote about the protests opposing Whitmer’s orders back in April that the protests cause spikes in active confirmed cases beginning 5-10 days after the protests. They’re visible here in these charts.

The plot wasn’t about Whitmer’s handling of COVID-19.

One only needs to look and listen to the language the conspirators used about Gov. Whitmer to know that this was about hate for a woman with the authority to give orders with regard to a deadly pandemic.

Tyranny to this baker’s dozen of white men was about a democratically-elected woman in a position of legitimate authority telling them what to do.

Trump set the tone for this by refusing to help Whitmer when she asked for federal assistance, by refusing to allow Pence as COVID-19 Task Force chair to listen to Whitmer, and by tweeting, “LIBERATE MICHIGAN” after the first protest against Whitmer’s orders.

His tweets yesterday attacking Whitmer again even after the arrests of kidnapping conspirators only reinforce the real intent of Trump and seditious domestic terrorists alike.

What will Trump’s tweets spawn next as we head into a second wave of COVID-19, this time with Michigan’s governor disempowered by Republicans on the state supreme court?

The Minh Quang Pham Precedent to the Julian Assange Extradition

WikiLeaks supporters say that extradition of Julian Assange to the United States threatens journalism. That is true.

They also say that his extradition would be unprecedented. I believe that’s true too, with respect to the Espionage Act.

But it’s not entirely without precedent. I believe the case of Minh Quang Pham, who was extradited to the US in 2015 for activities related to AQAP — the most substantive of which involve providing his graphic design expertise for two releases of AQAP’s magazine, Inspire — provides a precedent that might crystalize some of the legal issues at play.

The Minh Quang Pham case

Minh Quang Pham was born in 1983 in Vietnam. He and his parents emigrated to the UK in 1989 and got asylum. In 1995, he got UK citizenship. He partied a lot, at a young age, until his conversion to Islam in 2004, after which he was drawn to further Islamic study and ultimately to Anwar al-Awlaki’s propaganda. Pham was married in 2010 but then, at the end of that year, traveled to Yemen. After some delays, he connected with AQAP and swore bayat in early 2011. While he claimed not to engage in serious training, testimony from high level AQAP/al-Shabaab operative Ahmed Warsame, who — after a two month interrogation by non-law enforcement personnel on a ship — got witness protection for himself and his family in exchange for cooperation, described seeing Pham holding a gun, forming one basis for his firearms and terrorist training charges (though the government also relied on a photo taken with Pham’s own camera).

On my arrival, Amin had a Kalashnikov with him and a pouch of ammunition. I am not certain if he had purchased the gun himself but he did say he had been trained by Abu Anais TAIS on how to use it, I can say from my knowledge of firearms that this weapon was capable of automatic and single fire.

Warsame’s role as informant not only raised questions about the proportionality of US treatment (he was a leader of al-Shabaab, and yet may get witness protection), but also whether his 2-month floating interrogation met European human rights standards for interrogation.

Pham reportedly sucked at anything military, and by all descriptions, the bulk of what Pham did in Yemen involved helping Samir Khan produce Inspire. After some time and a falling out with Khan — and after telling Anwar al-Awlaki he would accept a mission to bomb Heathrow — he returned to the UK. He was interrogated in Bahrain and at the airport on return, and again on arrival back home, then lived in London for six months before his arrest. At first, then-Home Secretary Theresa May tried to strip him of his UK citizenship in a secret proceeding so he could be deported (and possibly drone killed like other UK immigrants), but since — as a refugee — he no longer had Vietnamese citizenship, her first attempt failed.

The moment it became clear the British effort to strip him of citizenship would fail, the US indicted Pham in SDNY on Material Support (covering the graphic design work), training with a foreign terrorist organization, and carrying a firearm. Even before he ultimately did get stripped of his citizenship, he was flown to the US, in February 2015. The FBI questioned him, with no lawyer, during four days of interviews that were not recorded (in spite of a recently instituted FBI requirement that all custodial interviews be recorded). On day four, he admitted that Anwar al-Awlaki had ordered him to conduct an attack on Heathrow (which made the 302), but claimed he had made it clear he only did so as an excuse to be able to leave and return to the UK (a claim that didn’t make the 302; here’s Pham’s own statement which claims he didn’t want to carry out an attack). While Pham willingly pled guilty to the training and arms charges, at sentencing, the government and defense disputed whether Pham really planned to conduct a terrorist attack in the UK, or whether he had — as he claimed — renounced AQAP and resumed normal life with his wife. He failed to convince the judge and got a 40 year sentence.

The question of whether Pham really did plan to attack Heathrow may all be aired publicly given that — after Pham tried to get a recent SCOTUS case on weapon possession enhancements applied to his case — the government has stated that it wants to try Pham on the original charges along with one for the terrorist attack they claim Pham planned based on subsequently collected evidence.

The parallels between the Assange and Pham cases

Let me be clear: I’m not saying that Assange is a terrorist (though if the US government tries him, they will write at length describing about the damage he did, and it’ll amount to more than Pham did). I’m arguing, however, that the US has already gotten extradition of someone who, at the time of his extradition, claimed to have injured the US primarily through his media skills (and claimed to have subsequently recanted his commitment to AQAP).

Consider the similarities:

  • Both legal accusations involve suspect informants (Ahmad Warsame in Pham’s case, and Siggi and Sabu in Assange’s)
  • Both Pham and Assange were charged for speech — publishing Inspire and publishing the names of US and Coalition informants — that is more explicitly prohibited in the UK than the US
  • Both got charged with a substantive crime — terrorism training and possession of a gun in the case of Pham, and hacking in the case of Assange — in addition to speech-based crimes, charges that would (and did, in Pham’s case) greatly enhance any sentence on the speech-related charges
  • Pham got sentenced and Assange faces a sentence and imprisonment in SuperMax in the US that is far more draconian than a sentence for the same crimes would be in the UK, which is probably a big part of the shared Anglo-American interest in extraditing them from the UK
  • Whatever you think about the irregularity and undue secrecy of the Assange extradition, Pham’s extradition was far worse, particularly considering the way Theresa May was treating his UK citizenship

Unlike the Pham charges — all premised on Pham’s willing ties to a Foreign Terrorist Organization, AQAP — the US government has not included allegations that it believes Julian Assange conspired with Russia, though prosecutors involved in his case trying unsuccessfully to coerce Jeremy Hammond’s testimony reportedly told Hammond they believe him to be a Russian spy, and multiple other reports describe that the government changed its understanding of WikiLeaks as it investigated the 2016 election interference (and, probably, the Vault 7 release). Even if it’s true and even if they plan to air the basis for their belief, that’s a claimed intelligence tie, not a terrorism one.

This distinction is important. Holder v. Humanitarian Law clearly criminalizes First Amendment protected activity if done in service of a designated Foreign Terrorist Organization, so Pham’s graphic design by itself made him fair game for charges under US precedent.

The government may be moving to make a similar exception for foreign intelligence assets. As the Congressional Research Service notes, if the government believes Assange to be a Foreign Agent of Russia, it may mean the Attorney General (Jeff Sessions for the original charge, and Bill Barr for all the indictments) deemed guidelines prohibiting the arrest of members of the media not to apply.

The news media policy also provides that it does not apply when there are reasonable grounds to believe that a person is a foreign power, agent of a foreign power, or is aiding, abetting, or conspiring in illegal activities with a foreign power or its agent. The U.S. Intelligence Community’s assessment that Russian state-controlled actors coordinated with Wikileaks in 2016 may have implicated this exclusion and other portions of the news media policy, although that conduct occurred years after the events for which Assange was indicted. The fact that Ecuador conferred diplomatic status on Assange, and that this diplomatic status was in place at the time DOJ filed its criminal complaint, may also have been relevant. Finally, even if the Attorney General concluded that the news media policy applied to Assange, the Attorney General may have decided that intervening events since the end of the Obama Administration shifted the balance of interests to favor prosecution. Whether the Attorney General or DOJ will publicly describe the impact of the news media policy is unclear.

There’s a filing from the prosecutor in the case, Gordon Kromberg, that seems to address the First Amendment in more aggressive terms than Mike Pompeo’s previous statement on the topic.But it may rely, as the terrorism precedent does, on a national security exception (one even more dangerous given the absence of any State Department FTO list, but that hardly makes a difference for a foreigner like Pham).

Ultimately, though, the Assange extradition, like the Pham prosecution, is an instance where the UK is willing to let the US serve as its willing life imprisoner to take immigrants to the UK off its hands. Assange’s extradition builds off past practice, and Pham’s case is a directly relevant precedent.

The human rights case for Julian Assange comes at an awkward time

While human rights lawyers fought hard, at times under a strict gag, on Pham’s immigration case, Assange’s extradition has focused more public attention to UK’s willingness to serve up people to America’s draconian judicial system.

Last Thursday, Paul Arnell wrote a thoughtful piece about the challenge Assange will face to beat this extradition request, concluding that Assange’s extradition might (or might have, in different times) demonstrate that UK extradition law has traded subverted cooperation to a defendant’s protection too far.

We need to reappraise the balance between the conflicting functions of UK extradition law.

Among the UK’s most powerful weapons are its adherence to the rule of law, democracy and human rights. Assange’s extradition arguably challenges those fundamental principles. His case could well add to the evidence that the co-operative versus protective pendulum has swung too far.

He describes how legal challenges probably won’t work, but an appeal to human rights might.

British extradition law presumptively favours rendition. Extradition treaties are concluded to address transnational criminality. They provide that transfer will occur unless certain requirements are met. The co-operative purpose of extradition more often than not trumps the protection of the requested person.

The protective purpose of extradition is served by grounds that bar a request if they are satisfied. Those particularly applicable in Assange’s case are double criminality, human rights and oppression.

There are several offenses within the Official Secrets Acts 1911/1989 and the Computer Misuse Act 1990 that seemingly correspond to those in the US request. However, human rights arguments offer Assange hope.

Three are relevant: to be free from inhuman and degrading punishment, fair trial rights and freedom of expression. Previous decisions have held that life-terms in supermaximum-security prisons do not contravene the “punishment” provision, while the right to freedom of expression as a bar to extradition is untested.

Assange’s best prospect is possibly the oppression bar. Under it, a request can be refused on grounds of mental or physical health and the passage of time. To be satisfied, however, grievous ill health or an extraordinary delay are required.

It’s a good point, and maybe should have been raised after some of the terrorism extraditions, like Pham’s. But it may be outdated.

As I noted, Arnell’s column, titled, “Assange’s extradition would undermine the rule of law,” came out on Thursday. Throughout the same week that he made those very thoughtful points, of course, the UK publicly disavowed the rule of law generally and international law specifically in Boris Johnson’s latest effort to find a way to implement Brexit with no limits on how the UK deals with Northern Ireland.

The highlight – something so extraordinary and constitutionally spectacular that its implications are still sinking in – was a cabinet minister telling the House of Commons that the government of the United Kingdom was deliberately intending to break the law.

This was not a slip of the tongue.

Nor was it a rattle of a sabre, some insincere appeal to some political or media constituency.

No: law-breaking was now a considered government policy.

[snip]

[T]he government published a Bill which explicitly provides for a power for ministers to make regulations that would breach international and domestic law.

[snip]

Draft legislation also does not appear from nowhere, and a published Bill is itself the result of a detailed and lengthy internal process, before it is ever presented to Parliament.

This proposal has been a long time in the making.

We all only got to know about it this week.

[snip]

No other country will take the United Kingdom seriously in any international agreements again.

No other country will care if the United Kingdom ever avers that international laws are breached.

One of the new disclosures in a bunch of Roger Stone warrants released earlier this year is that, in one of the first Dms between the persona Guccifer 2.0, the WikiLeaks Twitter account explained, “we’ve been busy celebrating Brexit.” That same Brexit makes any bid for a human rights argument agains extradition outdated.

Billy Barr’s DOJ Throws the Book at Someone Not Named Mike Flynn for Reneging on a Plea Agreement

Last week, the government moved to vacate the guilty plea of Minh Quang Pham because, in violation of his plea agreement, Pham tried to get one of the counts against him thrown out based on an intervening Supreme Court precedent. On top of a new development in a controversial counterterrorism case (one that, because Pham’s admitted actions for AQAP were primarily contributing his graphic design skills, could have interesting implications for Julian Assange’s extradition), the development is an example of what Bill Barr’s DOJ does when defendants not named Mike Flynn renege on the terms of their plea agreement.

Pham is a Vietnamese-Brit who, for a brief period, helped Samir Khan produce Inspire Magazine. Theresa May, while Home Secretary, tried to strip him of his British citizenship, presumably so he could be expelled and drone killed like some other immigrants to the UK with ties to terrorism. When it became clear that effort might fail, the US indicted Pham on Material Support, obtaining military training from a terrorist organization, and possessing a weapon.

There have always been some unexplained aspects of Pham’s story. He claims that he willingly left AQAP, returned to the UK with help from the government, where he lived peaceably until he was arrested. Nevertheless, in four FBI interviews he had while in custody but not recorded (the FBI claimed that because he was still in transit, he was not covered by an FBI rule requiring custodial interviews be recorded), he admitted to getting a bomb-making lesson from Anwar al-Awlaki. He later contested those interviews, but the government used testimony from Ahmed Warsame (another AQAP affiliate was also interrogated in custody while “in transit”) against him. In 2016, Pham pled guilty to three of the charges against him: conspiring to provide material support, conspiring to receive military training, and possessing a weapon. He was sentenced to forty years in prison, of which 30 were tied to the weapons charge, and sent to Florence SuperMax.

Last year in US v Davis, the Supreme Court held that the law used to impose the possessing a weapons charge and with it the long prison sentence against Pham was constitutionally vague.

Over the course of months, Pham worked to get representation to have his case reconsidered under US v Davis, an effort that was badly delayed both by his incarceration in SuperMax and COVID.

Which, after some negotiations between Pham and the government, led to last week’s action. Because US v Davis means Pham’s conviction for the weapons charge must be dismissed, the government argues they are entitled to throw out Pham’s plea deal, and move towards a trial, including new charges.

As set forth in more detail below, the Government respectfully submits that the Court should reinstate the charges contained in the Indictment. The Government dismissed those charges at sentencing pursuant to the Plea Agreement, and only as consideration for the defendant’s guilty plea to the subset of offenses set forth in the Plea Agreement. Neither the terms of the Plea Agreement nor controlling law in this Circuit prevent the Government from reinstating the previous charges against Pham under these circumstances. To the contrary, the defendant’s Plea Agreement expressly preserved the Government’s right to do so should the defendant’s “convictions” be “vacated for any reason.” (Ex. A. at 8). Accordingly, the Government seeks to vacate Pham’s convictions, reinstate the charges in the Indictment, and proceed to trial.

[snip]

Although it is axiomatic that “when a defendant breaches his plea agreement, the Government has the option to . . . treat it as unenforceable,” United States v. Cimino, 381 F.3d 124, 128 (2d Cir. 2004), the Court need not decide whether Pham’s filing of a Section 2255 motion constituted a breach of the plea agreement to grant the Government’s motion. “Whether [Pham] breached his contract or acted properly in negating it is largely irrelevant to this issue. Despite the change in law, [Pham] remained free to comply with the plea bargain. By taking advantage of the opportunity to vacate his conviction under [Davis], [Pham] chose to void his agreement with the government. That choice relieved the government from its contractual obligations, and explains why double jeopardy does not apply.” Podde, 105 F.3d at 821 n.6 (internal citations omitted).

In addition to moving to try Pham on the five existing charges (presumably, on the four that remain after Davis), the government plans to charge Pham with an attempted terrorist attack, in part to make sure they can charge Pham with something if the existing plea deal is upheld.

Separate from the application for reinstatement of charges, the Government respectfully informs the Court and defense counsel that the Government intends to file additional charges against Pham based on additional evidence secured following his conviction and sentencing.

The evidence at issue includes (1) video recordings showing the defendant constructing and detonating a test explosive device virtually identical to the one Pham told law enforcement was to be used in his planned suicide attack on Americans and Israelis at Heathrow International Airport; (2) video recordings of Pham associating with high-ranking members of AQAP; (3) a video recording of Pham describing his goal of waging jihad and his desire to martyr himself; and (4) a document containing instructions for executing the attack upon Pham’s return to London. The Government reviewed this evidence with defense counsel during a meeting on December 5, 2019, and produced a copy of the evidence to the defense on or about March 24, 2020.

Based on this evidence, the Government expects to seek additional charges related to the defendant’s attempted attack at Heathrow, including a violation of Section 924(c) predicated on the use and possession of a destructive device in furtherance of one or more additional crimes of violence committed in connection with the plot. This conduct, and the anticipated charges based upon it (which are subject both to approval by other components of the Department of Justice and presentation to the grand jury), are not covered by the provisions of the Plea Agreement defining the conduct for which “the defendant will not be further prosecuted criminally by this Office.” (Ex. A at 2). Accordingly, while the Government will not proceed with a superseding Indictment until after the Court rules on the reinstatement of the original charges of the Indictment, the Government expects to seek those additional charges whether or not it is also able to proceed on the previously dismissed counts.

Now, I’m not suggesting, at all, that there’s an equivalence in the actions of Pham and Mike Flynn. Even assuming some of Pham’s complaints about his interrogation and the disproportionate responsibility the government attributed to him over Warsame are true, he still admits he sought to participate in a terrorist organization.

But where a comparison is apt is the plea agreement. Like Pham, the government included language in Flynn’s plea agreement that if his conviction were vacated for any reason, he can be charged for the uncharged conduct tied to his plea agreement — which in Flynn’s case are the Foreign Agent charges that carry a possible sentence of 15 years. Flynn is arguing that he has not yet been convicted, though that’s currently among the many issues under dispute.

And the comparison is apt because (the government has argued, though Flynn disagrees) Flynn reneged on the cooperation included in his plea agreement.

For other people, Bill Barr’s DOJ has thrown the book when a defendant has reneged on his plea deal. In Flynn’s case, however, Barr’s DOJ is doing back flips to try to blow up the existing conviction.

Pham’s case will be quite interesting in any case, if it goes to trial (and the government has effectively already told him they intend to keep him in prison for life anyway, so he has no incentive not to contest this aggressively). But it’s also a worthy lesson in what normally happens when a defendant blows up a plea deal like Mike Flynn has.

Ben Wittes Gets Stung by the Trump Effect

WaPo has a report that DHS disseminated intelligence reports discussing tweets about leaked unclassified materials describing that DHS knows fuckall about the protests in Portland.

Over the past week, the department’s Office of Intelligence and Analysis has disseminated three Open Source Intelligence Reports to federal law enforcement agencies and others, summarizing tweets written by two journalists — a reporter for theNew York Times and the editor in chief of the blog Lawfare — and noting they had published leaked, unclassified documents about DHS operations in Portland. The intelligence reports, obtained by The Washington Post, include written descriptions and images of the tweets and the number of times they had been liked or retweeted by others.

After The Post published a story online Thursday evening detailing the department’s practices, the acting homeland security secretary, Chad Wolf, ordered the intelligence office to stop collecting information on journalists and announced an investigation into the matter.

The WaPo specifically notes that normally this kind of thing only happens with terrorism and other violent actors.

Some of the leaked DHS documents the journalists posted and wrote about revealed shortcomings in the department’s understanding of the nature of the protests in Portland, as well as techniques that intelligence analysts have used. A memo by the department’s top intelligence official, which was tweeted by the editor of Lawfare, says personnel relied on “FINTEL,” an acronym for financial intelligence, as well as finished intelligence “Baseball cards” of arrested protesters to try to understand their motivations and plans. Historically, military and intelligence officials have used such cards for biographical dossiers of suspected terrorists, including those targeted in lethal drone strikes.

The DHS intelligence reports, which are unclassified, are traditionally used for sharing the department’s analysis with federal law enforcement agencies, state and local officials, and some foreign governments. They are not intended to disseminate information about American citizens who have no connection to terrorists or other violent actors and who are engaged in activity protected by the First Amendment, current and former officials said.

The tweets were sent by Ben Wittes and NYT’s Mike Baker.

Wittes wrote a long thread in response, suggesting he may take further action, and complaining, in particular, that discussion of his tweets was disseminated as intelligence reporting.

Welcome to the Trump Effect, Ben.

I have long argued that the President created something I call the Trump Effect, which makes things that the US has long done — like abusive treatment of undocumented immigrants, counterproductive use of violence overseas, and excessive intelligence collection — visible to people like mainstream voters and some kinds of national security commentators.

Here, Wittes is specifically complaining about policies he and Lawfare have, in the past, applauded, a special category of intelligence collection — even collection of speech otherwise protected under the First Amendment — targeted at those believed to pose a unique threat to national security. I’ve tangled with Lawfare in the past over whether such policies disproportionately constrain Muslim speech. And I noted — in response to a Pollyannish prediction from Wittes that Trump wouldn’t be that bad in part because this kind of intelligence is focused primarily overseas that, no, it had already been deployed against Black Lives Matter, precisely the movement it is currently being deployed against.

Consider: One of the most inflated cases of terrorism in recent decades was Mohamed Osman Mohamud, a guy whose father asked the FBI for help because the father worried that the son was being radicalized. Rather than helping, the FBI targeted Mohamud — who was in contact with AQAP propagandist Samir Khan — in a sting. After over a year (probably more than a year), they got the teenager to press a button he thought would detonate a bomb that targeted Pioneer Square in Portland, the site of the historic courthouse. During his prosecution, the FBI wiretapped several lawyers representing Mohamud. The FBI almost  certainly cultivated him after doing back door searches targeting Samir Khan and others. Mohamud, now 28, still has 16 years left on his 30 year sentence, assuming time off for good behavior.

I’m not saying Mohamud, after being radicalized (partly by FBI informants and undercover officers) posed no danger. But the danger and the special authorities used against him were all premised on his intent to do damage to the historic courthouse a few blocks aware from the Federal Courthouse, the very same rationale Billy Barr has repeatedly cited for sending Federal officers to incite more violence in Portland. Whatever you want to call the damage done by a handful of protestors in Portland, it is real damage, unlike what Mohamud got incited by Federal officers to commit.

And using the framework that Lawfare has largely applauded, Trump’s national security establishment has now targeted the First Amendment activities of those deemed to exist in a network, however diffuse, that also includes those “supporting” violence in Portland.

Once a majority of the country came to support Black Lives Matter, a majority of the country came to exist within a diffuse network that has long been treated using a similar framework used against terrorism.

Including Ben Wittes.

None of this makes what DHS has done right. And, because Wittes and the NYT are public figures with access to powerful lawyers (unlike the great majority of journalists covering Portland’s stand-off), Acting DHS Secretary Chad Wolf reversed course.

But the response should not just be a complaint about how Trump and Barr have treated protestors and journalists and lawyers using the same approach that Wittes long applauded to be used with terrorists, one that long ago dispensed with the need to have a real nexus overseas. It should also be an urgent call to reexamine how we have investigated Muslims in the name of terrorism, particularly as the FBI continues to have such success investigating white supremacist terrorism without using this framework.

Federal intelligence targeting networks — especially when wielded by those who don’t understand the networks they’re looking at — will always impinge on First Amendment activities. It just so happens that now it is impinging on the First Amendment activities of those who used to applaud such approaches.

Update: I’ve been getting the two courthouses in Portland confused all morning. Hopefully I’ve fixed it now.

Trump’s Muslim Ban Ignored the Most Dangerous

The NYT has a long piece describing how Saudi Lieutenant Mohammed Alshamrani managed to get recruited into an elite flight training program, accepted into training in the US, granted a diplomatic visa and then the hunting license that allowed him to murder three sailors on a base in Pensacola last year, all with social media and call records making it clear he had ties to al Qaeda.

The entire thing is worth reading, both for the seeming Saudi indifference to their own vetting and for the discussion about ongoing tensions as DOD attempts to vet those it trains. The key problem, however, is that Alshamrani fell through the holes on both of the vetting programs purportedly set up to keep out people like him. Not only did Trump’s Muslim ban not exclude Saudis (from where more terrorists have come to attack the US than any other country, with the possible exception of Pakistan), but the increased vetting he demanded did not apply to diplomatic visas like the one he came in on. 

After passing through the hands of Saudi authorities, Lieutenant Alshamrani’s application for a visa to the United States landed in the consular section of the American Embassy in Riyadh in the summer of 2017.

The lieutenant’s information was first fed into a database kept by a special Department of Homeland Security vetting unit that has operated in Saudi Arabia after the Sept. 11 attacks. A consular officer used his passport and photograph to run still more checks — including facial recognition searches — on powerful databases fed by the American government’s central repository of information about terrorist identities.

It is not uncommon for the searches to turn up information that prevents military trainees from obtaining visas. But American Embassy officials, who are largely restricted from knocking on doors and taking other steps associated with deep background investigations, did not check the lieutenant’s social media history because such checks were not required at the time. Lieutenant Alshamrani’s application raised no suspicions.

One problem was that he was applying for a diplomatic visa as part of the elite training programs that are often important components of multibillion-dollar arms sales. In the last five years alone, Saudi Arabia has bought more than $45 billion in American weapons and training.

Although the State Department had cabled all embassies at Mr. Trump’s orders earlier in 2017 to step up screening of visas, the extra scrutiny was applied to immigrant visas and not to diplomatic applications, a senior American Embassy official in Riyadh said.

And the Insider Threat program set up in the wake of the Nidal Hassan killings focused exclusively on Americans, not foreign trainees.

The Pentagon system to monitor insider threats — created after the fatal shootings at Fort Hood and the Washington Navy Yard — was focused only on American service members, not on the 5,000 international military students who were training in the United States, including some 850 Saudis.

Normally, I’m of the mind that the national security dragnet will not catch every potential terrorist. But in this case, Alshamrani succeeded precisely because Trump’s racist ban was focused not on efficacy, but on bigotry, exempting precisely those who posed the most risk.

This should be a focus of bipartisan hearings — and it should draw more focus than whether or not Trump can drink a glass of water. Not because we need more dragnets, but because we need existing vetting programs to be focused on the most dangerous threats.

When Billy Barr Called a Press Conference to Target Non-Terrorists Rather than Brag about the Right Wing Terrorists FBI Caught

What if the FBI succeeded in thwarting a right wing terrorist attack but rather than bragging about that success, instead redoubled its efforts to target peaceful protestors as terrorists?

That’s what happened this week.

On Tuesday, the FBI terrorism agents arrested three adherents of the “Boogaloo” movement, a group of extremists planning a civil war. All have military experience and one, Andrew Lynam, is currently in the Army Reserve. At a ReOpen Nevada protest held in April, at which they were all heavily armed, Lynam told a person who’d go on to become an FBI informant that, “their group was not for joking around and that it was for people who wanted to violently overthrow the United States government.” One of them planned to use the cover of the George Floyd protests to conduct attacks and sow panic.

CHS stated that PARSHALL and LOOMIS’s idea behind the explosion [targeting Lake Mead] was to hopefully create civil unrest and rioting throughout Las Vegas. They wanted to use the momentum of the George Floyd death in police custody in the City of Minneapolis to hopefully stir enough confusion and excitement, that others see the two explosions and police presence and begin to riot in the streets out of anger.

They were arrested on the way to a Black Lives Matter protest with the makings of Molotov cocktails and an AR-15 in their vehicles.

Normally when the FBI thwarts a terrorism attack in process, they hold a big press conference to brag about it. As of this morning, however, neither DOJ nor FBI have posted the arrest on their national news websites (the Nevada US Attorney’s Office has).

Instead of boasting about the plotters arrested as terrorists, yesterday Billy Barr, FBI Director Christopher Wray, Acting DEA Administrator (and Barr flunky) Timothy Shea, and the head of ATF had a press conference that seemed designed to provide post hoc and advance justification for abusive steps Barr has and plans to authorize. (The Daily Beast also remarked on their silence about the Boogaloo arrests, and noted that that was one of the only arrests of ideologically motivated groups that have taken place during the uprising.)

The specifics of their statements, given the legal framework around national security investigations and known and presumptive OLC memos authorizing such things, deserves more attention.

The culprit is Antifa, not (also) the right-wingers carrying guns

In questions, for example, Pierre Thomas asked Bill Barr about the Boogaloo bust. Barr responded by focusing on Antifa.

And that’s why in my prepared statement, I specifically said, in addition to Antifa and other extremist groups like Antifa, there were a variety of groups and people of a variety of ideological persuasion. So I did make that point. I’m not going to get too specific, but the intelligence being collected by our US attorney’s office is particularly integrated by the FBI from multiple different sources is building up. There are some specific cases against individuals, some Antifa related.

Chris Wray also responded to the question about Boogaloo by emphasizing that Antifa was a terrorist organization.

Sure. Let me say first, as I’ve said for quite some time and including even my first few months in job, we, the FBI have quite a number of ongoing investigations of violent anarchist extremists, including those motivated by an Antifa or Antifa like ideology. And we categorize and treat those as domestic terrorism investigations and are actively pursuing them through our joint terrorism task forces.

This repeats comments both Wray and Barr made in their prepared speeches. Barr saidhe culprit here is “Antifa” and it is violent.

At some demonstrations, there are groups that exploit the opportunity to engage in looting.  And finally, at some demonstration, there are extremist agitators who are hijacking the protests to pursue their own separate and violent agenda.

We have evidence that Antifa and other similar extremist groups, as well as actors of a variety of different political persuasions, have been involved in instigating and participating in the violent activity.

Wray said the same. The culprits are “Antifa” and other agitators.

We’re seeing people who are exploiting this situation to pursue violent, extremist agendas—anarchists like Antifa and other agitators. These individuals have set out to sow discord and upheaval, rather than join in the righteous pursuit of equality and justice. And by driving us apart, they are undermining the urgent work and constructive engagement of all those who are trying to bring us together—our community and religious leaders, our elected officials, law enforcement, and citizens alike.

There is a foreign nexus that will allow us to use transnational tools

In his prepared speech, Barr claimed that there are foreign actors involved.

We are also seeing foreign actors playing all sides to exacerbate the violence.

It’s true that the Russians who helped Trump get elected are sowing dissension but that would be dealt separately from a press conference if Barr weren’t trying to use the foreign nexus to access national security tools he says can’t be used with Trump supporters.

Barr returned to this later, and specifically said they maybe can’t offer proof.

I may ask Chris if he cares to provide a little more detail. I’m not sure how much detail we want to get into, but people shouldn’t think that countries that are hostile to the United States, that their efforts to influence the US or weaken the US or sow discord in the US is something that comes and goes with the election cycle. It is constant. And they are constantly trying to sow discord among our people, and there’s a lot of disinformation that circulates that way. And I believe that we have evidence that some of the foreign hackers and groups that are associated with foreign governments are focusing in on this particular situation we have here and trying to exacerbate it in every way they can. Unless Chris has something to add, I can turn it over to … Yeah.

By suggesting there’s a foreign nexus, Barr is laying the groundwork to claim to need tools only available with that foreign nexus (something that has been done with past protest movements).

Every store that gets raided gives federal jurisdiction

After making it clear that Billy Barr intends to target Antifa as the culprit here, and use national security tools to do so, Barr and his flunkies then laid out how they think they have national jurisdiction.

Barr asserted his own jurisdiction based off the federal buildings he said that had been targeted (and because protestors were in front of the White House).

Many of the buildings, as you know, and facilities here, and the monuments are the responsibility of the federal government and the proceedings and process of the federal government take place here. And so when you have a large scale civil disturbance that is damaging federal property, threatening federal property, threatening federal law enforcement officers, threatening the officials in government and their offices and our great monuments, it is the responsibility of the federal government to render that protection.

Barr described how that Federal jurisdiction — and his invocation of the word “riot” — allows them to lead the response via what is the intelligence-driven network used against terrorists.

The Justice Department is also working closely with our state and local partners to address violent riots around the country.  Our federal law enforcement efforts are focused on the violent instigators.

Through the FBI, U.S. Attorney’s Offices, component field offices, and state and local law enforcement, we are receiving real-time intelligence, and we have deployed resources to quell outbreaks of violence in several places.

While Wray didn’t use the word “riot” he described the centrality of the Joint Terrorism Task Force to the Federal response.

We’re making sure that we’re tightly lashed up with our state, local, and federal law enforcement partners across the country, by standing up 24-hour command posts in all of our 56 field offices. We have directed our 200 Joint Terrorism Task Forces across the country to assist local law enforcement with apprehending and charging violent agitators who are hijacking peaceful protests.

Timothy Shea invented an excuse not used in his request to get involved: the DEA has jurisdiction because some people stole controlled substances from pharmacies, possibly after they had been looted.

In addition, DEA continues to investigate drug related crimes, including the theft of controlled substances from looted pharmacies, which is happening here in the District of Columbia and across the country. In the national capital region, approximately or over 150 DEA special agents have partnered with the metropolitan police department at their request and the National Guard to enforce security posts and maintain a secure perimeter in designated areas.

Acting ATF Director Regina Lombardo made a similar claim to jurisdiction (though theirs legitimately extends to explosives activity): ATF is investigating firearm dealer thefts.

 ATF has also responded to 73 federal firearms licensed dealers. We have identified many suspects that made arrest and recovered many firearms already.

When it came to Bureau of Prisons Director Michael Carvajal, the only real excuse he offered was that Billy Barr requested BOP get involved. Though he did offer the bogus claim that BOP’s riot team is “experienced in … conflict resolution.”

The Attorney General asked the BOP to request and assist other law enforcement agencies in maintaining order and peace in the district of Columbia. BOP crisis management teams are highly trained to deal with various types of emergency situations, including crowd control and civil disturbances. They are experienced in confrontational avoidance and conflict resolution.

Barr offered even more transparently bullshit excuses for inviting in the kinds of people who put down riots among violent felons, claiming that there weren’t enough Marshals to go around, and that no one else in the US Government (like Park Police) know how to deal with the kinds of crowds they deal with all the time. Barr also provided a totally bullshit excuse for why the riot teams weren’t wearing identification.

Let me just add that the Bureau of Prisons SORT teams are used frequently for emergency response and emergency situations, in either civil disturbances or hurricanes or other things like that. They’re highly trained. They’re highly trained units. And in fact, in the Department of Justice, we do not really have large numbers of units that are trained to deal with civil disturbances. I know a lot of people may be looking back on history, think we can call on hundreds and hundreds and hundreds of US Marshals, and that’s simply not the case. Our marshals’ response for us is approximately a hundred US Marshals. And so, historically when there have been emergencies where we have to respond with people who do have experience in these kinds of emergencies that are highly trained people, we use what are called SORT teams, response teams from the Bureau of Prisons.

And I could see a number … Now, in the federal system, we don’t wear badges with our name. I mean, the agents don’t wear badges and their names and stuff like that, which many civilian police agents, I mean, non-federal police agencies, do. And I could understand why some of these individuals simply wouldn’t want to talk to people about who they are, if that were, if that in fact was the case.

The photo op was not a photo op

But Barr’s bullshit explanation for why he sicced riot teams on peaceful protestors was still more credible than the excuse he offered for violently attacking peaceful protestors, including priests at a church serving them, for a photo op. He had decided (using the jurisdiction assumed by claiming everything is a federal building) to expand the perimeter around the White House.

Unfortunately, because of the difficulty in getting appropriate units into place, by the time they were able to move our perimeter up to I street, a large number of protestors had assembled on H Street. There were projectiles being thrown and the group was becoming increasingly unruly. And the operation to what… They were asked to three times if they would move back one block, they refused. And we proceeded to move our perimeter out to I Street.

And that had nothing at all whatsoever with the President’s desire for a photo op and he just happened to be in the photo op that had nothing to do with the violent attack on peaceful protestors and the exploitation of a house of worship.

Obviously, my interest was to carry out the law enforcement functions of the federal government and to protect federal facilities and federal personnel, and also to address the rioting that was interfering with the government’s function. And that was what we were doing. I think the president is the head of the executive branch and the chief executive of the nation, and should be able to walk outside the White House and walk across the street to the church of presidents. I don’t necessarily view that as a political act. I think it was entirely-I don’t necessarily view that as a political act. I think it was entirely appropriate for him to do. I did not know that he was going to do that until later in the day after our plans were well underway to move the perimeter, so there was no correlation between our tactical plan of moving the perimeter out by one block and the president’s going over to the church. The president asked members of his cabinet to go over there with him, the two that were present, and I think it was appropriate for us to go over with him.

Let me be clear. These are — most of them — transparently bullshit excuses. Unfortunately, the way our intersecting justifications for using national security authorities work, such transparently bullshit excuses provide the legal cover that the Federal government has long used, especially when it comes to spying on brown people.

To be clear, this is not new. It’s just incredibly ham-handed and pretty transparently done after the fact, after the press already identified Barr’s abuses. And I assume OLC only now is writing memos to match the transparently bogus claims made in yesterday’s presser.

Bill Barr and Chris Wray Schedule a Press Conference to Admit Trump Let an Al Qaeda Terrorist onto Our Military Base

Today, Billy Barr and Chris Wray had a press conference to announce that — in spite of his Muslim Ban — Trump had permitted an affiliate of AQAP, Mohammed Saeed Alshamrani, into this country, and onto a military base, where he bought a gun and murdered three sailors.

The evidence we’ve been able to develop from the killer’s devices shows that the Pensacola attack was actually the brutal culmination of years of planning and preparation, by a longtime AQAP associate.

The new evidence shows that al-Shamrani had radicalized not after training here in the U.S. but at least as far back as 2015, and that he had been connecting and associating with a number of dangerous AQAP operatives ever since. It shows that al-Shamrani described a desire to learn about flying years ago, around the same time he talked about attending the Saudi Air Force Academy in order to carry out what he called a “special operation.” And he then pressed his plans forward, joining the Air Force and bringing his plot here—to America.

Thanks to a lot of hard work by our people, we now know that al-Shamrani continued to associate with AQAP even while living in Texas and in Florida; and that in the months before the attack, while he was here among us, he talked with AQAP about his plans and tactics—taking advantage of the information he acquired here, to assess how many people he could try to kill.

After presenting this evidence, Barr and Wray didn’t announce that Trump is ending his Muslim Ban or retargeting it to focus on countries like Saudi Arabia that have always been a risk for terrorism. Barr and Wray didn’t explain how it was that the Trump Administration’s vetting was so poor that they let Alshamrani into a flight training program in Pensacola without vetting his social media or searching his phone on arrival. They didn’t explain how they’ll make sure foreign military officers we’re training don’t continue to plot attacks under our nose.

Instead, Barr and Wray used this opportunity to explain that Apple has to make all our phones less secure even after the FBI succeeded in accessing Alshamrani’s phones.

Barr and Wray didn’t explain why the obvious solution is not, instead, to properly vet military officers from countries that have attacked us in the past, including consensual searches of phones as those officers enter the country.

Is Bill Barr Picking a Fight with Apple to Distract from the Failure of Trump’s Social Media Vetting?

To some degree, recent disclosures about Ahmed Mohammed al-Shamrani’s killing of three sailors in Pensacola make it seem like a mirror of the San Bernardino attack in 2015 in 2015. A man, steeped in Islamic propaganda, used a moment of vulnerability to attack Americans. He is killed in the attack, but not before he destroys a phone. At first, DOJ asks Apple for help getting the easier things from the phone, such as the materials stored in the iCloud account. Then, after a delay makes the most obvious work-arounds impossible, DOJ asks Apple to hack the phone, which would thereby make not just that phone accessible to law enforcement, but all iPhones vulnerable to cops, authoritarian governments, and criminals.

There’s even some reason to believe that the law enforcement officer grandstanding to use a terrorist attack as an opportunity to force Apple to weaken its products is lying both about what Apple and DOJ have respectively done, but about how certain it is that Apple is the only available option.

But investigators have been stymied in trying to access two key pieces of evidence — the gunman’s iPhones. Standing before giant photographs of two severely damaged devices, the attorney general publicly urged Apple to act.

“So far, Apple has not given us any substantive assistance,” Barr said, though aides later clarified that Apple had, in fact, given investigators access to cloud data linked to the gunman. “This situation perfectly illustrates why it is critical that investigators be able to get access to digital evidence once they have obtained a court order.”

[snip]

In a lengthy statement, Apple disputed the attorney general’s description of its role, saying the company began responding within hours of the first FBI request on Dec. 6, and has turned over “many gigabytes” of data in the case.

“Our responses to their many requests since the attack have been timely, thorough and are ongoing,” the company said. “The FBI only notified us on January 6th that they needed additional assistance — a month after the attack occurred. . . . Early outreach is critical to accessing information and finding additional options.”

[snip]

Asked Monday whether the FBI’s technical experts on cellphones had agreed with the decision to send the letter pressing Apple to open the phones, Bowdich said he did not know.

An FBI spokesperson later said the bureau’s “technical experts — as well as those consulted outside of the organization — have played an integral role in this investigation. The consensus was reached, after all efforts to access the shooter’s phones had been unsuccessful, that the next step was to reach out to start a conversation with Apple.”

But the more important comparison may pertain to the role of social media in the attack.

Almost immediately after the 2015 attack, the FBI discovered that the woman involved in the attack, Tashfeen Malik, had pledged loyalty to Abu Bakr al-Baghdadi just before the attack. That led Congress to suggest the Obama Administration hadn’t vetted Malik’s immigration processing closely enough, even though nothing in place at the time would have identified her past extremist writing.

In response, Customs and Border Patrol started laying the groundwork for a policy that seemed like dangerous overkill at the time, but that Trump nevertheless adopted: requiring visa applicants to list their social media handles so their social media activity can be vetted.

Somehow, in spite of that requirement, 17 Saudis in the US for military training were found to have jihadist material on their social media accounts, on top of al-Shamrani, and 15 of them had child porn on their social media accounts.

Barr said investigators had found evidence that 17 Saudis had through social media shared ­jihadist or anti-American material and 15 — including some of those who had shared anti-American material — were found to have had contact with or possessed child pornography.

It’s one thing for CBP to have missed Malik’s Facebook comments before they used social media to vet visa applicants.

It’s an entirely different thing to institute social media vetting, but then somehow miss that 18 people admitted onto our military bases to be trained are anti-American or pro-jihadist. All the more so given that Trump’s Muslim ban excluded Saudi Arabia — the origin of most of the 9/11 hijackers and other attempted terrorists since — even while focusing closely on Muslims from country without a history of terrorism against the US.

Plus, in spite of Barr’s vague comments explaining how a “US Attorney” reviewed child porn engaged well beyond that which George Nader pled guilty to yesterday and decided that person could return home to Saudi Arabia.

Barr said only one of those people had a “significant number” of [CP] images, and U.S. attorneys had reviewed each case and determined such people would not normally be charged with federal crimes. He said 21 cadets from Saudi Arabia had been disenrolled from their training and would be returning to the kingdom later Monday. Justice Department officials said 12 were from the Pensacola base, and nine were from other military bases.

[snip]

U.S. attorneys had independently determined the child porn did not warrant charges. Justice Department officials said the most significant case involved a cadet who possessed more than 100 images of child porn and had searched terms for child porn, according to his browser history — but even that fell below the normal threshold for a case deemed worthy of prosecution by a U.S. attorney’s office.

This seems to be part of a pattern that Ron Wyden has already complained about, the serial impunity of Saudi students who commit crimes in this country.

Normally, I oppose politicizing the response to terrorist attacks. You can’t prevent all terrorism, and the drive to do so has eroded our civil liberties.

But if you’re going to erode our civil liberties, then you better be damn sure you’re doing so for a reason. And it seems like CBP (and DOD) failed to ensure we weren’t inviting Saudis to our country to train them to be better terrorists against us in the future.

Barr wants this to be about Apple. First, however, he should be asked why the vetting Trump championed failed to work in this case.

If DOJ is going to complain that Apple isn’t degrading security, it should first explain why the last policy it took that traded privacy for security failed.

The Predictable Result of Asymmetry in Terrorism Policing: Andrew McCabe’s Demise

I recently finished Andrew McCabe’s book.

It is very effective at what I imagine its intended purposes are. It provides some fascinating new details about the genesis of the Russian investigation. It offers a great introduction in how the FBI (at its best) can work. It gives a self-congratulatory version of McCabe’s career, including key events like the Najibullah Zazi and Boston Marathon investigations; even if McCabe had wanted to tell fully honest stories about those investigations, I’m sure the less flattering details wouldn’t have passed FBI’s publication review.

The book also says satisfyingly mean things about Trump, Jeff Sessions, and (more obliquely) Rod Rosenstein. (I think McCabe’s book release significantly explains the rumors reported as fact that Mueller’s report was imminent some weeks ago; that claim served, in part, to once again eliminate any pressure to fire Rosenstein immediately).

The latter of two, of course, implemented McCabe’s firing. McCabe’s excuse for lying to the Inspector General, which led to his firing, is one of the least convincing parts of the book (he admits he can’t say more because of his continued legal jeopardy, but he does raise it). That’s true, in part, because McCabe only deals with one of the conversations in question; there were a number of them. But he also excuses his chief lie because he was frazzled about learning of the Strzok-Page texts in the same conversation. I can understand that, but elsewhere, one of his digs against Rosenstein is how overwhelmed the Deputy Attorney General was in the wake of the Jim Comey firing. McCabe suggests, in that context, that because he had dealt with big stressful issues (like the Boston Marathon attack), he wasn’t similarly rattled. Which is why I find it disingenuous to use being frazzled for not being fully truthful to the Inspector General. Plus, virtually all defendants prosecuted for lying to the FBI (including George Papadopoulos, but not Mike Flynn, who is a very accomplished liar) are frazzled when they tell those lies; it’s a tactic the FBI uses to catch people unguarded.

I was most frustrated, however, by something that has become increasingly important in recent days: McCabe’s utter lack of awareness (at least in the book) of the import of the asymmetric focus on Islamic terrorism across his career.

After moving to counterterrorism in the mid-00s from working organized crime, McCabe became an utterly central player in the war on Islamic terror, founding the High Value Interrogation Group, and then leading the CT and National Security Divisions of FBI. He was a key player in investigations — like Zazi — that the FBI is rightly proud of.

But McCabe normalizes the choices made after 9/11 to pursue Islamic terrorism as a distinct danger. He (of course) whitewashes Jim Comey’s decision to retain the Internet dragnet in 2004 under an indefensible use of the PATRIOT Act. He argues that it is politically impossible to survive a failure to prevent an attack even though he managed the Boston Marathon attack, where FBI and NSA had some warning of Tamerlan Tsarnaev’s danger, but nevertheless got very little criticism as a result. Most remarkably, McCabe talks about Kevin Harpham’s attempted attack on the Martin Luther King Day parade, mentions as an aside that this was (obviously) not an Islamic terror attack, but offers no reflection on how Harpham’s attack undermines much of what he presents, unquestioningly, as a greater risk from Islamic terrorism (here’s a story on how Barack Obama did not get briefed on Harpham, a decision that may well have involved McCabe).

Granted, McCabe’s blind spots (at least in the book) are typical of people who have spent their lives reinforcing this asymmetry. You see it, too, in this utterly nonsensical paragraph in a largely ridiculous piece from Joshua Geltzer, Mary McCord, and Nick Rasmussen — all likewise accomplished players in the War on Just One Kind of Terrorism — at Lawfare.

The phrases “international terrorism” (think of the Islamic State and al-Qaeda) and “domestic terrorism” (think of the Oklahoma City bombing and the October 2018 shooting at a Pittsburgh synagogue) have often been a source of confusion to those not steeped in counterterrorism. The Islamic State has its roots internationally, but what makes it such a threat to Americans is, in part, its ability to influence domestic actors like Omar Mateen to kill Americans in domestic locations like Orlando, Florida. The group may be “international,” but its attackers and attacks can be, and have been, domestic—to tragic effect.

This paragraph, in a piece that admits the focus of their career has been wrong (and neglects to mention that Christchurch terrorist Brenton Tarrant named Donald Trump, along with Anders Behring Breivik, as an inspiration), suggests that the reason international terrorism is “such a threat” is because it can inspire domestic actors. The logic inherent to that paragraph is that terrorism carried out by “domestic terrorists,” inspired by a domestic white supremacist ideology is any less dangerous than terrorism carried out by people inspired by what is treated as an international ideology. International terrorism is worse than domestic terrorism, these experts argue, because it can lead to domestic terrorism.

Dead is dead. And given the significant number of white supremacists who have had experience in the military and greater tolerance for their training, white supremacists have the potential of being far more effective, as individuals, at killing than US-based Islamic terrorists.

One thing the Lawfare piece studiously avoids acknowledging is that what it calls “domestic” terrorism (the racist ideology of which they never describe) is an ideology significantly exported by the United States. Even in a piece that rightly calls for an equal focus on both white supremacist terrorism and Islamic terrorism, it ducks labeling the ideology in question. And while this WaPo piece does label the ideology in question, it bizarrely calls an attack in New Zealand carried out by an Australian a “domestic” attack.

The WaPo piece describes one problem with the asymmetric treatment of different kinds of terrorism: that governments don’t share intelligence about international violent racist ideology. In fact, in the US, such intelligence gets treated differently, if the FBI’s failure to track the networks around Frazier Glenn Miller and Eric Rudolph is any indication.

Ironically, that’s one reason that McCabe’s failure to track white supremacist terrorism in the same way he tracked Islamic terrorism led to his demise. While the network behind the election year operation that helped elect Trump involves a lot of Russians, it also clearly involves a lot of white supremacists like Nigel Farage (and David Duke), a network Russia exploited. Additionally, as I have argued (and at least one study backs) white supremacist networks provided the real fire behind the attacks on Clinton; Russia’s information operations had the effect of throwing more fuel on a blazing bonfire.

The other problem with the US government’s asymmetric treatment of terrorism is legitimacy. Labeling Islamic terrorism “foreign” and pursuing material support cases based partly on speech has had the effect of criminalizing some speech that criticizes US foreign policy, even well-deserved criticism about the effect of US killing of Muslims. By contrast, white supremacist speech, even that which  more aggressively advocates violence is treated as speech. Yes, deplatforming has begun to change that.

But we’re still not at a place where those who incite white supremacist violence are held accountable for it.

That’s how it was possible for a man to kick off a campaign by inventing lies about Mexican immigrants and how the entire Republican party, up to and including the new supposedly sane Attorney General, are permitted to pursue counterproductive policies solely so they can appear to demonize brown people.

Irrespective of the merit or not in the finding that Andrew McCabe lacked candor with the IG, he got treated the way he did because a man whose entire political career is based off feeding white resentment needed to appear to be a victim of Andrew McCabe. That act, by itself, was not about Trump’s white supremacist ideology. But it is a structure of power that is white supremacist (exacerbated by Trump’s narcissism).

We have a President Trump in significant part because this country has tolerated and even rewarded white supremacist ideology, institutionally ignoring that it poses as much of a risk as violent Islamic ideology. It would be really useful if people like Andrew McCabe spend some time publicly accounting for that fact.

The white supremacy that brought us the Trump presidency would not be possible if we had treated violent white supremacist terror as terror for the last twenty years.

Trump Refuses to Keep This Country Safe from Terrorism

I thought a lot about two things over the weekend.

I thought about the line that disqualifies an otherwise excellent book on left wing terrorism in the 1970s, Days of Rage: “With the possible exception of the Ku Klux Klan,” author Bryan Burrough claimed close to the beginning of the book, “the United States until 1970 had never spawned any kind of true underground movement committed to terrorist acts.” The book, which spends a lot of time talking about left wing political violence in significant part stemmed out of a concern for the rights of African Americans, utterly dismissed (perhaps because it was so widely accepted it could barely be called “underground”?) America’s most persistent terrorist movement as such. The line has haunted me ever since as an example of the kind of blindness even experts have about the centrality of right wing terrorism in American history.

I thought, too, about Charlie Savage’s description in Power Wars of how Scott Brown’s team claimed that his polling showed he won the 2010 special election to replace Ted Kennedy chiefly because of perceptions of how Obama responded to Umar Farouk Abdulmutallab’s failed Christmas Eve bombing, because Brown attacked Obama for wanting to give terrorists due process. Once Republicans learned that, they doubled down, encouraging voters to become more afraid.

In a question-and-answer period following his prepared remarks, [Mitch] McConnell candidly acknowledged the political advantage of hammering away at the issue, citing Brown’s victory.

“If this approach of putting these people in U.S. courts doesn’t play in Massachusetts, I don’t know where it sells,” McConnell said, adding: “You can campaign on these issues anywhere in America.”

As Savage describes, that was when Obama started caving on his efforts to adopt a more reasonable approach to terrorism, first reversing Eric Holder’s decision to try the 9/11 defendants in NYC, then launching an 18-month campaign to drone kill Anwar al-Awlaki, and ultimately failing to close Gitmo or hold torturers to account.

Now, as Savage tells it, all that arose solely out of the Abdulmutallab case. He barely covered an event that preceded it, one where Republicans very much set up the Brown lines: when Pete Hoekstra leaked information obtained via FISA collection showing that Nidal Hasan had had communications with Awlaki before his attack on Fort Hood, using it to suggest the Obama Administration should have prevented the Fort Hood attack by adequately analyzing collected communications. Republican efforts to exact a cost from Obama for a more reasonable approach to terrorism (which included demanding that Obama call Hasan’s attack on a military target, terrorism) actually preceded the Abdulmutallab attack, and it was far more deliberate than made out.

The point is, though, that it had the short term desired effect of breaking the Democratic super majority in the Senate and the longer term effect of making Obama reactive on terrorism, rather than proactive (even through the time, in 2013, when Massachusetts was successfully attacked at the Boston Marathon and polls showed people actually didn’t want any more limits on civil liberties). Republicans deliberately and successfully forced a president who wanted to be something other than a War on Terror President to instead be just that.

And now, 8 years after Mitch McConnell gleefully said Republicans should run on hard nose accountability for terrorist attacks everywhere, Republicans are whining that Democrats are treating Trump’s actions in advance of and in the wake of serial right wing terrorist attacks last week as a political issue.

In the wake of last week’s terrorist attacks, we have returned to a discussion we always have after such things, why we call Islamic terrorism terror, but call the targeting of black churches and Jewish synagogues hate crimes and the attempted assassination of Democratic figures bomb attacks. Popehat wrote a worthy lawsplainer, from the viewpoint of a former prosecutor, why domestic terrorists don’t get (immediately) labeled as terrorist attacks. 9/11 Commission staffer Daniel Byman acknowledged that while we don’t have the same legal structure for pursuing domestic terrorist as we do terrorism with a foreign nexus, for the Pittsburgh case, at least, we should probably use the T-word.

I’ve talked about why it is important to call domestic terrorism terrorism here: First, because not doing so results in an equal protection problem, where Muslims are more likely to be targeted in a sting because the FBI has greater access to the communications of still-innocent people with suspect people overseas. And, because calling something terrorism conceives of the possibility of a supporting network, and investigating that network might prevent deaths, such as those perpetrated by the networks of Eric Rudolph or Kevin Harpham.

But the government may not call these acts terrorism. That’s true, in part, because DOJ has invented a separate category to criminalize (impose the death penalty on) hateful motives with hate crimes designation. In addition, Jeff Sessions’ DOJ has adopted a deliberate policy of record-keeping to try to claim that the greatest threats come from outside the country, which is paralleled by their thus far unsuccessful attempt to brand the (US-born) MS-13 gang both as a threat sourced from Central American and as a threat to rival ISIS.

Trump’s effort to brand a group of refugees 1,000 miles from the border as a more urgent threat to the country than corruption or climate change or domestic gun violence — an effort which likely had a tie to both Cesar Sayoc’s terrorist attempt and Robert Bowers’ mass killing — is more of the same, an effort to claim that the most critical threats are foreign and anything he deems a threat is therefore un-American, also foreign.

Ultimately, the reason why the government won’t call last week’s attacks terrorism, however, is precisely the reason they should. Call them terror attacks, and the networks of support and enablers get investigated rather than just isolated men treated as lone wolves. Call them terror attacks, and we start to ask what responsibility Lou Dobbs or Steve King or Chris Farrell (or the people who vote for and fund them) — or Donald Trump — have for the attacks, in the same way we held Anwar al-Awlaki responsible for his role in the terrorist attacks that Scott Brown exploited to get elected.

Byman describes correctly how contentious this can be, because those espousing the same policies as terrorists don’t want to be associated with those terrorist acts.

[D]omestic terrorism often has a bigger political impact than jihadi violence. A foreign-based attack brings America together in the face of tragedy. But right-wing (and left-wing) violence is more likely to divide the country. Just this week, for example, 56-year-old Cesar Sayoc reportedly sent explosive packages to CNN, Democratic politicians, and others seen as “enemies” of Trump. Some right-wing voices immediately embraced conspiracy theories rather than recognizing his activities for what it was. Domestic terrorists poke at bigger political wounds than do jihadis, with at least some Americans sympathizing with their cause even as they reject their violent means.

In turn, observers often avoid the word “terrorism” because peaceful proponents of right-wing and left-wing causes don’t want to be lumped together, even by weak association, with terrorists. We can and should recognize that most political groups of all stripes abhor violence. Doing so—while also acknowledging that the groups and individuals who don’t belong in a separate category—will better enable the United States to isolate extremists and cut them off before the next tragedy.

Which is why this post bears the headline, “Trump refuses to keep this country safe from terrorism” rather than Trump fosters terrorism, even if I believe the latter to be the case.

Because until the time those willing to coddle Trump’s racism in the name of tribal loyalty are defeated politically, they will want to pitch questions about what to label Cesar Sayoc and Robert Bowers’ actions as an attack on themselves.

Instead, let’s make it an attack on Donald Trump’s basic competence as President, one the Republicans themselves, from top to bottom, have embraced.

It is the Republican party of Karl Rove and Mitch McConnell and Scott Brown and (Trump Ambassador to the Netherlands) Pete Hoekstra that says a President who won’t keep the country safe from terrorism must be defeated politically. Me, I’d rather deal with all this domestic terrorism by first closely tracking those accused of domestic violence (which would have the effect of preventing non-ideological mass killings along with the ideological mass killings and attempts) and by noting that under George W Bush and Obama, the FBI was actually pretty good at discovering right wing terrorism without the tools they have against Islamic terrorism. I’d rather Democrats run on the fear of losing health insurance or the impact of climate change or gun violence generally.

But not Republicans. Republicans believe that a President who refuses to take a very aggressive approach to terrorism should not be President. So for those Republicans, let’s make this an issue not of the ways Trump’s network fostered actions like we saw last week, but how Trump’s Administration has chosen not to combat terrorism.

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