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Senate Intelligence Committee Member Ron Wyden STILL Hasn’t Seen Targeted Killing Memo
By: emptywheel Monday January 14, 2013 3:32 pm
Every time I get into debates about the targeted killing program–especially the killing of Anwar al-Awlai–drone boosters insist that the oversight provided by the Intelligence Committees is adequate to the task.
That’s a quaint thought.
Ron Wyden, in a letter preparing John Brennan for his confirmation hearing, reveals that he still hasn’t seen the “secret legal opinions” (plural) authorizing the targeted killing program.
First, as you may be aware, I have asked repeatedly over the past two years to see the secret legal opinions that contain the executive branch’s understanding of the President’s authority to kill American citizens in the course of counterterroism operations. Senior intelligence officials have said publicly that they have authority to knowingly use lethal force against Americans in the course of counterterrorism operations, and have indicated that there are secret legal opinions issued by the Justice Department’s Office of Legal Counsel that explain the basis for this authority. I have asked repeatedly to see these opinions, and I have been provided with some relevant information on the topic, but I have yet to see the opinions themselves.
[snip]
As I have said before, this situation is unacceptable. For the executive branch to claim that intelligence agencies have the authority to knowingly kill American citizens but refuse to provide Congress with any and all legal opinions hat explain the executive branch’s understanding of this authority represents an alarming and indefensible assertion of executive prerogative.
Remember, Wyden is a member of the Senate Intelligence Committee, that group of select men and women with whom the Executive must share even the findings authorizing the most covert operations.
And yet for two years, they have rebuffed Wyden’s questions about their claim to be authorized to kill Americans.
There’s more in the letter demonstrating how arrogant the Obama Administration has been with the purported overseers of its covert operations.
But it doesn’t get much scarier than the fact that the President won’t tell Congress the bases and limits to his authority to unilaterally kill Americans.

Posted in Drones | Tagged Anwar al-Awlaki, Ron Wyden | 3 Replies
Fear, Uncertainty, and Doubt: the Real Cyber Attack on the Truth
By: Rayne Monday January 14, 2013 1:00 pm

[photo: cdrummbks via Flickr]
One weaselly senator–with long-identified agendas and a pathetically thin understanding of technology–takes to the microphone. Suddenly, by virtue of wrapping his senatorial lips around a few scary words on topics about which he knows little, we citizens are supposed to quake in fear and plead for salvation.
Screw that noise. This is textbook  “fear, uncertainty, and doubt” — more commonly referred to as FUD in the information technology industry.
Since the 1970s, FUD tactics have used to suppress competition in the computer marketplace, targeting both hardware and software. Roger Irwin explained,
…It is a marketing technique used when a competitor launches a product that is both better than yours and costs less, i.e. your product is no longer competitive. Unable to respond with hard facts, scare-mongering is used via ‘gossip channels’ to cast a shadow of doubt over the competitors offerings and make people think twice before using it.In general it is used by companies with a large market share, and the overall message is ‘Hey, it could be risky going down that road, stick with us and you are with the crowd. Our next soon-to-be-released version will be better than that anyway’. …
FUD has non-technology applications as well; one need only look at product and service brands that encourage doubts about using any product other than their own, in lieu of actually promoting the advantages their product or service might have.
So what’s the FUD about? Senator Joe Lieberman spouted off about cyber attacks in September last year, claiming Iran was behind disruptive efforts targeting U.S. banks.
Right. Uh-huh. Predictable, yes?
But FUD is used in situations where there is competition, one might point out. Yes, exactly; in September 2012, the case for support of unilateral attacks against Iran was up against the news cycle crush, powered by the post-Benghazi fallout and the drive toward the November general election, followed by the terror that was the “fiscal cliff.” That’s a lot of powerful, compelling competition for both attention, votes, and tax dollars, when members of a reliable but lame duck Congress could be mounting up a pre-emptive cyber war without the headwind of public awareness and resistance, or the too-inquisitive pushback from newbies in the next seated Congress. Continue reading

Posted in Cybersecurity, Foreign Policy | Tagged cyber warfare, Cyberwar, FUD, Iran, technology | Leave a reply
What Kind of Fishing Trip Did the Government Conduct into Aaron Swartz’ Amazon Data?
By: emptywheel Monday January 14, 2013 11:21 am
Yesterday, privacy researcher Chris Soghoian posted an interesting exchange he had with Aaron Swartz in March 2011.
But then I wondered about Amazon. Amazon not only has a lot of private data on its own, but they host a lot of other websites with personal data. It seems like everyone is using Amazon EC2 these days ­­ Reddit and Netflix and Foursquare and more. Even sites that aren’t hosted on EC2, like 37 signals, still use S3 for backup. The “truly paranoid” tarsnap uses both EC2 and S3. (Yes, tarsnap encrypts your data, but [it sometimes has bugs][b] and doesn’t protect against traffic analysis.) Hell, even WikiLeaks was hosted there at one point.
What’s disturbing is that this means your personal data isn’t just accessible by the people who operate these sites ­­ it’s also accessible by Amazon. And anyone Amazon decides to hand it to.
What are Amazon’s policies? I’ve had several conversations with them about this, but they refuse to comment on the record. Still, I’m in the rare position of getting to experience them first­hand. A couple years ago the government sent Amazon a subpoena for information about an EC2 instance I’d purchased. Amazon handed it over without stopping to warn me. When I asked them about it specifically, they refused to comment. When I asked them about their general policy, they refused to comment. The only reason I found out about it was because I filed a FOIA request with the Department of Justice. The DOJ was more transparent about this than Amazon.
As best as I can tell, this is Amazon’s policy: When the government asks, turn stuff over. Never tell the people affected. Don’t give them a chance to object.
The exchange ends with Soghoian asking if Swartz will publish his piece, to which Swartz says he cannot.
I thought of that and wish I could, but I can’t put my name on it right now personal reasons.
The exchange happened, we now know, in between the time the Cambridge police first arrested him for breaking and entering and the time the government indicted him for a slew of computer crimes. It seems likely that those “personal reasons” include negotiations with the Secret Service about the JSTOR downloads (we know Swartz and his lawyer met with the Secret Service that summer and turned over some hard drives).
As Swartz himself pointed out, this exchange also happened in the wake of news that the government had issued orders to Twitter–basically within a day of the time the Secret Service triggered Swartz’ initial arrest–for the communications of people associated with WikiLeaks.
The exchange is notable because of a request Swartz’ lawyer made the following year, at the beginning of the pre-trial discovery process. In addition to asking how the government had obtained a bunch of communication involving Swartz and others, his lawyer asked to see everything returned from grand jury subpoenas and orders served on MIT and JSTOR–which makes sense in this case–but also Twitter, Google, and Amazon.
These paragraphs request information relating to grand jury subpoenas. Paragraph 1 requested that the government provide “[a]ny and all grand jury subpoenas – and any and all information resulting from their service – seeking information from third parties including but not limited to Twitter. MIT, JSTOR, Internet Archive that would constitute a communication from or to Aaron Swartz or any computer associated with him.” Paragraph 4 requested “[a]ny and all SCA applications, orders or subpoenas to MIT, JSTOR, Twitter, Google, Amazon, Internet Archive or any other entity seeking information regarding Aaron Swartz, any account associated with Swartz, or any information regarding communications to and from Swartz and any and all information resulting from their service.” Paragraph 20 requested “[a]ny and all paper, documents, materials, information and data of any kind received by the Government as a result of the service of any grand jury subpoena on any person or entity relating to this investigation.”
Swartz requests this information because some grand jury subpoenas used in this case contained directives to the recipients which Swartz contends were in conflict with Rule 6(e)(2)(A), see United States v. Kramer, 864 F.2d 99, 101 (11th Cir. 1988), and others sought certification of the produced documents so that they could be offered into evidence under Fed. R. Evid. 803(6), 901. Swartz requires the requested materials to determine whether there is a further basis for moving to exclude evidence under the Fourth Amendment (even though the SCA has no independent suppression remedy).
[snip]
Moreover, defendant believes that the items would not have been subpoenaed by the experienced and respected senior prosecutor, nor would evidentiary certifications have been requested, were the subpoenaed items not material to either the prosecution or the defense. Defendant’s viewing of any undisclosed subpoenaed materials would not be burdensome, and disclosure of the subpoenas would not intrude upon the government’s work product privilege, as the subpoenas were served on third parties, thus waiving any confidentiality or privilege protections. [my emphasis]
Effectively, Swartz’ lawyer was indicating that he had seen subpoenas and orders that requested information from–among others–Amazon, but not all of what these providers had returned in exchange was turned over as evidence in the case. He was trying to see what else the government had. He’s also making it clear that the government asked for the information in such a form that could be entered as evidence in a trial (meaning the government would not have to call an employee from Amazon or another service provider to certify the authenticity of the data, who could then be questioned by the defense).
And he’s suggesting that if the prosecutor asked for these things, then they must be relevant in this case, and therefore discoverable.
I suspect, though, that that last claim is not what the lawyer really thought. I suspect that he believed the grand jury investigating Swartz–during precisely the same period when Swartz was researching how Amazon might respond to a government request for information–had conducted a fishing trip on other issues, and had done so in such a way that any information gleaned could be used both to prosecute the alleged JSTOR download but also any other crime.
Now I suspect that DOJ’s original request to Amazon–the one Swartz mentioned to Soghoian–dated to Swartz’ efforts to liberate PACER. It shows up in the part of his FBI file Swartz published on his blog.
Data that was exfiltrated went to one of two Amazon IP addresses.
Investigation has determined that the Amazon IP address used to access the PACER system belongs to Aaron Swartz.
So it’s possible the grand jury was reinvestigating what Aaron had done two years earlier, even though DOJ had earlier declined to press charges, in an effort to criminalize Swartz’ efforts to liberate information generally.
But given the timing and Swartz’ own tie to the WikiLeaks orders, I also wonder whether there was something else there–whether Swartz believed the government had information pertaining to activities entirely unrelated to JSTOR or PACER.
Ultimately, Swartz didn’t get this information. As to the communications, the judge assumed the government’s assurances that they had neither used a civil administrative subpoena nor “court ordered electronic surveillance” to get his communications closed the issue (given that the government investigated WikiLeaks as an Espionage case, the government might have claimed access to some of this under the PATRIOT Act simply because of Swartz’ ties to the Cambridge hacktavist community). And she refused to turn over the grand jury information on the grounds that the government may use such inquiries to chase down every lead, even if those leads are unrelated.
So it’s not clear Swartz ever learned what the government was looking for in its fishing expedition with Amazon.

Posted in WikiLeaks | Tagged Aaron Swartz, Amazon | 7 Replies
“Conditions on the Ground” in Afghanistan Demonstrate Why Immunity Will Never be Granted to US Troops
By: Jim White Monday January 14, 2013 9:11 am
Despite the happy talk in Washington during Friday’s joint press appearance by Afghan President Hamid Karzai and US President Barack Obama, Karzai’s public statement today upon his return to Afghanistan illustrates that it is quite unlikely that we will ever see an agreement granting US troops full criminal immunity beyond the end of 2014. Highly disparate stories from Afghan civilians, the Afghan press and the US military surrounding the deaths of a number of Afghan civilians on Sunday serve to illustrate why no immunity agreement will ever be granted and that a full US withdrawal, just as seen in Iraq, will follow the failure to grant immunity.
In the Washington press conference on Friday, Karzai said that he would push for an immunity agreement:
Mr. Karzai also said he would push to grant legal immunity to American troops left behind in Afghanistan — a guarantee that the United States failed to obtain from Iraq, leading Mr. Obama to withdraw all but a vestigial force from that country at the end of 2011.
But now that he is back in Afghanistan, we see how Karzai plans to make his “push”:
“The issue of immunity is under discussion (and) it is going to take eight to nine months before we reach agreement,” Karzai told a news conference in the capital, Kabul, after returning from meetings with U.S. President Barack Obama in Washington.
The Afghan government rejected an initial U.S. proposal regarding the question of immunity and a second round of negotiations will take place this year in Kabul, he said.
Those negotiations could involve Afghanistan’s Loya Jirga, a “grand assembly” of political and community leaders convened for issues of national importance, he added.
It seems virtually impossible that a Loya Jirga would vote to confer immunity, and so it appears that by including the Loya Jirga in the decision process, Karzai will be able to claim that he “pushed” for immunity but was unable to get the vote for it.
Meanwhile, a joint US-Afghan military operation on Sunday provides a perfect example of both why the US insists on immunity and why Afghans are virtually certain never to grant it.
The New York Times gives us some of the basics of what happened:
An explosion in a mountain village in eastern Afghanistan on Sunday killed at least seven civilians after a joint American-Afghan military raid killed four Taliban fighters there, Afghan officials said. But villagers said 16 civilians had been killed.
/snip/
In Sunday’s raid, which occurred before dawn, a team of American and Afghan Special Operations forces detained a Taliban leader and then came under fire from Taliban gunmen who were hiding in a mosque. At least some of the Taliban were wearing suicide vests, which exploded during the fight, destroying the mosque, Afghan officials said.
“It was a joint ground operation in Hasan Khel village of Saidabad that killed four armed Taliban inside the mosque,” Major Zaffari said. “Some civilians were trying to collect the bodies or to get their weapons and other ammunition when suddenly a huge explosion took place and resulted in civilian casualties, but we don’t know the exact numbers.”
Afghan civilians claim that a US airstrike was involved. In fact, Khaama Press includes that claim in the headline of its story “NATO airstrike kill Afghan civilians in Wardak province” (it appears that subject-verb agreement was lost in translation): Continue reading

Posted in War | Tagged Afghanistan, Barack Obama, Hamid Karzai, immunity, ISAF, SOFA, Status of Forces Agreement | Leave a reply
Two Days Before MIT and Cambridge Cops Arrested Aaron Swartz, Secret Service Took Over the Investigation
By: emptywheel Sunday January 13, 2013 7:37 pm
The public story of Aaron Swartz’ now-tragic two year fight with the Federal government usually starts with his July 19, 2011 arrest.
But that’s not when he was first arrested for accessing a closet at MIT in which he had a netbook downloading huge quantities of scholarly journals. He was first arrested on January 6, 2011 by MIT and Cambrige, MA cops.
According to a suppression motion in his case, however two days before Aaron was arrested, the Secret Service took over the investigation.
On the morning of January 4, 2011, at approximately 8:00 am, MIT personnel located the netbook being used for the downloads and decided to leave it in place and institute a packet capture of the network traffic to and from the netbook.4 Timeline at 6. This was accomplished using the laptop of Dave Newman, MIT Senior Network Engineer, which was connected to the netbook and intercepted the communications coming to and from it. Id. Later that day, beginning at 11:00 am, the Secret Service assumed control of the investigation. [my emphasis]
In fact, in one of the most recent developments in discovery in Aaron’s case, the government belatedly turned over an email showing Secret Service agent Michael Pickett offering to take possession of the hardware seized from Aaron “anytime after it has been processed for prints or whenever you [Assistant US Attorney Stephen Heymann] feel it is appropriate.” Another newly disclosed document shows the Pickett accompanied the local cops as they moved the hardware they had seized from Aaron around.
According to the Secret Service, they get involved in investigations with:
Downloading scholarly articles is none of those things.
A lot of people are justifiably furious with US Attorney Carmen Ortiz and AUSA Heymann’s conduct on this case.
But the involvement of the Secret Service just as it evolved from a local breaking and entry case into the excessive charges ultimately charged makes it clear that this was a nationally directed effort to take down Swartz.
MIT’s President Rafael Reif has expressed sadness about Aaron’s death and promised an investigation into the university’s treatment of Aaron. I want to know whether MIT–which is dependent on federal grants for much of its funding–brought in the Secret Service.

Posted in WikiLeaks | Tagged Aaron Swartz, Carmen Ortiz, Secret Service | 62 Replies
NFL Divisional Playoff Trash Talk – Platinum Style!
By: bmaz Saturday January 12, 2013 8:50 am
Yes, it used to be that all that glitters turns to gold. How archaic that is; it’s platinum now baybee! Our football weekend is now down to eight teams and four games. All pro, because the student athletes have all returned to the classroom (okay, yes, most of them are probably rolling in South Beach and setting up their off season PED schedules, but a boy can dream, no?). There has been some movement of the coaching and GM fronts, but none of it all that earth shattering, so lets get down to business.
The best games are the two Saturday matchups. First up is the Ravens at Denver. No reason to name check the players here, you know who will be on the field and how great they are. The key factor really may be the weather. “Mostly cloudy with isolated snow showers. Highs around 17.” Brrrrrrrrr! Trust me, it is COLD in Denver when conditions are like that, and there is no dome like Peyton had in Indy. Partially due to the cold, partially to not fully restored grip from his nerve injury, Manning has taken to wearing a glove in the cold for the Broncos. It may not be optimal, but I expect he will deal, and it will be no hayride for Flacco either. Both defenses are strong and relatively healthy, so the game may well come down to who gets untracked, Ray Rice or Knowshon Moreno. this could be a great game, but it is, after all, in Mile High. Oh, and Peyton has won nine straight against the Ravens. I think this is the end of the line for Ray Lewis. Donkos get er done.
The nightcap Saturday is maybe the topper of the weekend. Pack at Candlestick Park to visit the Niners. This is like old times, back in the day of Favre and Montana/Young, the road to the the NFC Championship always seemed to involve these two teams against each other. And it was always a killer matchup. Still is. This year, the Niners rolled The Cheese in GB early in the year. But that was before the Pack got untracked; they seem to have some of the momentum back now, and have even found a decent, though not spectacular, running game. Dujuan Harris is no Frank Gore, but he has given the GB offense some help with tough yards. Both defenses have all their key folks back and ready to go. Both teams have had problems with their place kicking, but Mason Crosby has been good the last two games. But in the Aaron Rodgers versus Colin Kaepernick battle, you have to take Discount Doublecheck (and he STILL has a chip on his shoulder over the Niners not drafting him as a hometown hero). Cheese Baby!
The Sunday slate opens with Seattle at Atlanta. This should be a great game, pairing maybe the hottest NFC team, the Squawks, versus the number one seed, Atlanta. Try as I might though, it still doesn’t seem to have the luster of the Saturday games. Seattle looks like a steamroller right now and Atlanta seems kind of underwhelming for a number one seed. Make no mistake however, the Dirty Birds and Matt Ryan are traditionally extremely hard to beat in their home dome, and they are very solid. The Falcons are desperate to avoid a fifth straight playoff loss, the Squawks are on a serious roll; something has to give. My head says take Atlanta at home; my gut says Seattle gets the upset.
Last, and emotionally kind of least, is Houston at New England. Lately it has been Houston playing like patsies, not the Bill Bels. As good as the Texans have been over the entirety of the season, it is just darn near impossible to generate any sense of belief in them right now. Last week Houston looked like crap in barely holding off the Bengals, who played pathetically. Four weeks ago, the Texans were blown out at Foxborough, and the Pats didn’t even have The Gronk that game. Gronk is back, and Tom Brady is not going to let up off the gas. Adam Shefter thinks the Texans might be an upset special. Not me, I think the Texans have a problem. Ring the Bill Bel!
There is the ultra shiny Platinum Coin Playoff lineup folks. In some regards, this is the best weekend of the NFL year, what with two must watch games on both days. Great stuff. Music by Simon and Garfunkel with a Hazy Shade of Winter, cause it will be just that in Denver at Mile High.

Posted in Football, Trash Talk | 106 Replies
Did John Brennan Create the Loopholes CIA Used to Help Spy on New Yorkers?
By: emptywheel Friday January 11, 2013 3:32 pm
There’s one question I haven’t seen anyone ask but which seems utterly critical to John Brennan’s fitness to be CIA Director.
Back when the AP was first exposing how the CIA set up a spying program for the NYPD, they asked John Brennan about it. He professed to be “intimately familiar” with the program.
President Barack Obama’s homeland security adviser, John Brennan, who was the deputy executive director the CIA when the NYPD intelligence programs began, said he was intimately familiar with the CIA-NYPD partnership. He said that agency knew what the rules were and did not cross any lines.
As the program got more attention last year, Brennan even went to NYC to personally give the domestic spying program his seal of approval.
The White House added its stamp of approval a month later when President Obama’s top counterterrorism adviser John Brennan visited police headquarters.
“I have full confidence that the NYPD is doing things consistent with the law, and it’s something that again has been responsible for keeping this city safe over the past decade,” he said.
Remember, this program is offensive not just because it spies on so many Americans and in such incompetent fashion. It’s offensive because it involved the CIA in training NY Police Officers in CIA spy techniques.
These operations have benefited from unprecedented help from the CIA, a partnership that has blurred the line between foreign and domestic spying.
[snip]
David Cohen arrived at the New York Police Department in January 2002, just weeks after the last fires had been extinguished at the debris field that had been the twin towers. A retired 35-year veteran of the CIA, Cohen became the police department’s first civilian intelligence chief.
Cohen had an exceptional career at the CIA, rising to lead both the agency’s analytical and operational divisions. He also was an extraordinarily divisive figure, a man whose sharp tongue and supreme confidence in his own abilities gave him a reputation as arrogant. Cohen’s tenure as head of CIA operations, the nation’s top spy, was so contentious that in 1997, The New York Times editorial page took the unusual step of calling for his ouster.
[snip]
Among Cohen’s earliest moves at the NYPD was making a request of his old colleagues at CIA headquarters in Langley, Va. He needed someone to help build this new operation, someone with experience and clout and, most important, someone who had access to the latest intelligence so the NYPD wouldn’t have to rely on the FBI to dole out information.
CIA Director George Tenet responded by tapping Larry Sanchez, a respected veteran who had served as a CIA official inside the United Nations. Often, when the CIA places someone on temporary assignment, the other agency picks up the tab. In this case, three former intelligence officials said, Tenet kept Sanchez on the CIA payroll.
When he arrived in New York in March 2002, Sanchez had offices at both the NYPD and the CIA’s station in New York, one former official said. Sanchez interviewed police officers for newly defined intelligence jobs. He guided and mentored officers, schooling them in the art of gathering information. He also directed their efforts, another said.
There had never been an arrangement like it, and some senior CIA officials soon began questioning whether Tenet was allowing Sanchez to operate on both sides of the wall that’s supposed to keep the CIA out of the domestic intelligence business.
Continue reading →

Posted in Fusion Centers, Intelligence | Tagged George Tenet, John Brennan, NYPD | 4 Replies
Another Year, and Another Detainee Killed, But Obama’s Intent Is Still Found in Bagram
By: emptywheel Friday January 11, 2013 10:47 am
Today marks yet another anniversary for our prison in Gitmo. Over the last year, the most notable change has been that–after Obama’s DOJ succeeded in gutting habeas corpus so they could keep Adnan Latif, against whom they had no credible evidence, detained–Latif died under unexplained circumstances. Laura Poitras has a powerful video documenting Latif’s torment to mark today’s anniversary. Jason Leopold also has a story with new details on Latif’s death.
And while I do think the Administration’s willingness to so twist the law to keep Latif is itself witness to Obama’s real intent on indefinite detention, I still think the argument I made last year–that Bagram is the true exhibit of Obama’s fondness for review-free detention–stands. Here’s last year’s Gitmo post in its entirety, with updates below.
On a near daily basis in the last week or so, Jason Leopold has tweeted some quote from the daily White House press briefing in which a journalist asks Jay Carney a question about detention, to which Carney responds by insisting the Administration still intends to close Gitmo.
Q    One other topic.  Wednesday is apparently the 10th anniversary of the prison in Guantanamo Bay, and I’m wondering what the White House says now to critics who point to this as a pretty clear broken promise.  The President had wanted to close that within a year.  That hasn’t happened for a lot of the history that you know of.  And now it’s like there’s really no end in sight.  How do you respond to the criticism that this is just a big, broken promise?
MR. CARNEY:  Well, the commitment that the President has to closing Guantanamo Bay is as firm today as it was during the campaign.  We all are aware of the obstacles to getting that done as quickly as the President wanted to get it done, what they were and the fact that they continued to persist.  But the President’s commitment hasn’t changed at all.  And it’s the right thing to do for our national security interests.
That has been an opinion shared not just by this President or members of this administration, but senior members of the military as well as this President’s predecessor and the man he ran against for this office in the general election.  So we will continue to abide by that commitment and work towards its fulfillment.
And that response usually succeeds in shutting the journalist up.
No one has, as far as I know, asked the more general question: “does the Administration plan to get out of the due process-free indefinite detention business?” That question would be a lot harder for Carney to answer–though the answer, of course, is “no, the Administration has no intention of stopping the practice of holding significant numbers of detainees without adequate review.” Rather than reversing the practice started by the Bush Administration, Obama has continued it, even re-accelerated it, expanding our prison at Bagram several times.
That question seems to be absent from discussions about Gitmo’s anniversary, too. Take this debate from the NYT.
Deborah Pearlstein takes solace in her assessment that Gitmo has gotten better over the last decade.
In 2002, detention conditions at the base were often abusive, and for some, torturous. Today, prisoners are generally housed in conditions that meet international standards, and the prison operates under an executive order that appears to have succeeded in prohibiting torture and cruelty. In 2002, the U.S. president asserted exclusive control over the prison, denying the applicability of fundamental laws that would afford its residents even the most basic humanitarian and procedural protections, and rejecting the notion that the courts had any power to constrain executive discretion. Today, all three branches of government are engaged in applying the laws that recognize legal rights in the detainees. Guantánamo once housed close to 800 prisoners, and most outside observers were barred from the base. Today, it holds 171, and independent lawyers, among others, have met with most detainees many times.
But she doesn’t mention that the Administration still operates a prison alleged to be abusive, even torturous, still rejects the notion that courts have any power to constrain executive discretion over that prison. And that prison holds over 3,000 men in it!
Sure, Gitmo has gotten better, but that only serves to distract from the fact that our detention practices–except for the notable fact that we claim to have ended the most physical forms of torture–have not.
David Cole scolds those in Congress who “don’t seem troubled at all about keeping men locked up who the military has said could be released, or about keeping open an institution that jeopardizes our security,” yet doesn’t mention that Bagram does the same. Nor does he note the part of the Administration’s NDAA signing statement that suggested Congress’ salutary effort to expand detainee review would not necessarily apply to Bagram. How can it all be Congress’ fault when Obama isn’t fulfilling the letter of the law providing more meaningful review to those we’re holding at Bagram?
Even the brilliant Vince Warren focuses on the “legal black hole” that is Gitmo, without mentioning the bigger legal black hole that is Bagram.
Among the four participants in the debate, only Eric Posner even mentions Bagram, suggesting that that’s one less optimal alternative to keeping prisoners at Gitmo.
To be sure, there are other options. Detainees could be placed in prison camps on foreign territory controlled by the U.S. military, where they lack access to U.S. courts and security is less certain.
But then Posner misconstrues the issue.
Some critics believe that the whole idea of a war on terror is misconceived, that Congress could not have lawfully declared war on Al Qaeda, and that therefore suspected members of Al Qaeda cannot be detained indefinitely like enemy soldiers but must either be charged in a court or released. This position has been rejected repeatedly by the courts, but even if it were correct, Guantánamo would remain a legitimate place to detain enemy soldiers picked up on “hot” battlefields wherever they may be now or in the future — places like Afghanistan, Iraq, Libya and maybe soon Iran, to name a few.
There’s a difference between what is legal under international law developed for very different wars and what is just or what is the best way to conduct that war. And the problem with Gitmo (mitigated somewhat over the decade)–and the problem with Bagram, still–is that we’re spending unbelievable amounts of money to detain and abuse people that we haven’t even adequately reviewed to make sure we need to detain them. That’s not a smart way to conduct a war, particularly not one its backers insist will never end, particularly one that depends on our ability to win support among Afghans and other Muslims.
The only thing that was and is problematic about Gitmo that is not also problematic about Bagram is the publicity surrounding it (presumably, though, just here and in Europe–I imagine Afghans, Pakistanis, and al Qaeda members know as much about Bagram as they do about Gitmo). That is, by treating–and allowing the Administration to treat–Gitmo as the problem, rather than due process-free and possibly abusive indefinite detention generally, we’re all acting as if the problem is that people know we’re conducting due process-free indefinite detention, not that we’re doing it at all. Continue reading

Posted in Gitmo Show Trials, Indefinite Detention | Tagged Adnan Farhan Abd Al Latif, Hamid Karzai, Yunus Rahmatullah | 3 Replies
After Having Let Off HSBC with an Inadequate Fine, Regulators Prepare to Let JPMC Off with No Fine
By: emptywheel Friday January 11, 2013 9:52 am
It has been less than 18 months since JP Morgan Chase was fined $88.3 million for–among other things–sending a ton of gold bullion to Iran.
Yet JPMC’s regulators are about to scold JPMC–and demand it improve the compliance programs it promised to improve 18 months ago–again.
Only, having found JPMC didn’t implement the promised compliance programs after being fined, JPMC’s regulators this time will not fine the bank for violating US law.
A U.S. regulatory probe of JP Morgan Chase & Co is expected to result in an order that the bank correct lapses in how it polices suspect money flows, in an action expected as soon as Friday, people familiar with the situation said.
The action would be in the form of a cease-and-desist order, whichregulators use to force banks to improve compliance weaknesses, the sources said.
The order is expected to be issued by the Office of the Comptroller of the Currency and the Federal Reserve.
JP Morgan is not expected to pay a monetary penalty, according to one person familiar with the situation.
This is what counts as seriousness from US bank regulators–ever quieting peeps when American banks openly flout the law (they’re a bit harsher with European banks, though still believe in forgiving such banks for things like material support to terrorism).
A teenager busted for shoplifting would pay more in fines than JPMC reportedly will pay for helping crooks–even alleged assassins–do their crime.
 

Posted in Financial Fraud, Scary Iran Plot | Tagged Federal Reserve, HSBC, Jamie Dimon, JP Morgan Chase, OCC | 2 Replies
The Constitutional Argument Against the Platinum Coin Stunt
By: bmaz Friday January 11, 2013 8:31 am
They came for the 4th Amendment, but it was necessary for the war on drugs. They came for the 5th Amendment, but due process had to be sacrificed for the war on terror. They came for the 6th Amendment, but confrontation had to succumb to classification and secrecy. They came for the War Powers Act because Libya was “required to be protected”. Now they are coming for one of the most fundamental of Constitutional checks and balances, the Congressional prerogative of the purse.
Who are “they”? They are, of course, the ubiquitous Article II Executive Branch. And they have a never ending thirst for usurping power, all in the name of efficacy. It is always necessary, it is always an emergency, there is always a reason, for them to take the power. They are the Daddy Branch, and it is always best to trust them. So they say.
Back when “they” were the Bush/Cheney regime, liberals, progressives, and Democrats in general, had a seriously dim view of accumulation and usurpation of power in a unitary Executive. When Dick Cheney, David Addington and John Yoo contorted existing law, gave it application never intended, and manufactured legal and governmental gimmickry to accomplish stunningly naked Executive power grabs, those on the left, especially the blogosphere, screamed bloody murder. Well, that is precisely what is afoot here with the Mint the Coin! push.
Where is that principled set of voices on the left now? Things are different when it is your guy in office I guess. Because the active liberal/progressive left I see out there is currently screaming to “Mint the Coin!” doesn’t seem to realize they are calling for the same type of sham rule of law that John Yoo engaged in.. This is most curious, because “Minting the Coin!” contemplates a naked power grab by the Executive Branch of historic proportions. It is a wholesale taking of the Congressional purse prerogative under the Constitution. But, hey, its an “emergency”. Of course. It always is when the Article II Executive Branch comes to feed in the name of efficacy.
What is the value of Separation of Powers, and constriction of Constitutionally assigned powers to the branch to which they were assigned, and what is the value in insuring that an imperial Executive Branch does not usurp too many powers? Let James Madison, in Federalist No. 47 explain:
No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.
….
The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them. ” This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department (Publius, Federalist 47).
What is the import of the Congressional “Power of the Purse”? As James Madison said in Continue reading

Posted in Blogs Internet and New Media, Bush Administration, Congress, Democrats, Domestic Policy, Economics, Ideas and Ideology, Law, Obama Administration, Unitary Executive | Tagged Debt Ceiling, Erwin Chemerinsky, Federalist Papers, Lawrence Tribe, Mint the Coin, separation of powers | 131 Replies
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