Archive for the ‘Obama administration’ Category
A good point in the comment thread to Mike Lofgren’s essay on Moyers & Company:
The Universal Law of Order: “Whenever two or more individuals unite to form an organization the survival of the organization becomes paramount to the survival of the individual.”
And so organizations strike back hard when threatened—e.g., the attack on Adrian Schoolcraft of the NYPD who simply exposed what the NYPD was doing; the likelihood that Edward Snowden, who simply exposed what our government is doing, likely faces life imprisonment in solitary should he return to the US; and perhaps even the mysterious rash of unexpected deaths of young (in their 30′s) JP Morgan IT professionals.
Too many organizations believe that what they are engaged in doing is wrong and/or illegal—they become frantic if the information threatens to become public.
Thanks to Big Chrono for pointing out the Adrian Schoolcraft article.
UPDATE: Here from Murtaza Hussein in The Intercept is a rather flagrant example of an organization feeling threatened by legal action taking extra-legal means to attack a person exposing it: a man in Pakistan who is seeking legal redress from the CIA for drone attacks.
The tactics to besmirch individual and institutional reputations that the NSA and GCHQ have embraced, as detailed by Glenn Greenwald yesterday, seems to me of questionable legality and unquestionable inappropriate conduct and bad faith. (In today’s military, with its repeated rapes, lies, scandals, and cover-ups, does “conduct unbecoming” have any meaning at all? Certainly “honor” seems long since drained of meaning in the military use of the term.)
At Informed Comment Juan Cole has a good post on what the US and the UK have so wholeheartedly undertaken:
Researchers on online behavior have shown that internet trolls (people who use insincere techniques to disrupt conversations) really are psychopaths, marked by narcisssism, sadism, Machiavellianism. Professors Eric Buckels, Paul Trapnell, and Delroy Paulhus administered surveys to students and found that about 6 percent of them enjoyed messing with other people’s heads on the internet, or trolling. This same group scored high on the four most vicious personality traits, known as the dark tetrad. They agreed when asked questions like this:
I have been compared to famous people (narcissism)
It’s not wise to tell your secrets (Machiavellianism)
Payback needs to be quick and nasty (psychopathy)
Hurting people is exciting (sadism)
In video games, I like the realistic blood sports (vicarious sadism)
Now it turns out that Western intelligence agencies who say that they are fighting al-Qaeda are actually spending time trolling the internet, displaying all the same Dark Tetrad characteristics. Their victims include “hacktivists,” but note that they are targeting these individuals on suspicion of hacking and that the persons targeted have not been convicted of any crime.
Glenn Greenwald at Firstlook reveals the powerpoint slides used by British intelligence (GCHQ) to train its operatives in how to deceive Western publics. It must also be underlined that we simply don’t know who exactly is targeted in cyberspace in this way or why. Some anti-war activists, e.g., may be among the victims.
The powerpoint slides instruct cyber-spies to entrap their “targets” in sex scandals (the “honey trap”), to write deceptive emails to their friends and colleagues (did anyone you know suddenly stop talking to you and wouldn’t explain why?), to change their photos on social media, and to create a blog in which the individual posed as a purported victim of some alleged dastardly deeds falsely attributed to the target. Where the target is a company, the slides advise “post negative information on appropriate forums,” “ruin business relationships”.
The mantra of these dirty tricks units is the “4 D’s”: deny, disrupt, degrade, deceive.
The slides, in short, exhibit signs of sadism, Machiavellianism, psychopathy and narcissism, the Dark Tetrad. The “d’s” in “four d’s” are best understood as standing for “Darknesses.”
Again, these things were being done by government employees to people they just didn’t like. There is no pretense of law or due process here.
When political organizations and political cults, or when corrupt politicians pull these tricks, it makes them disreputable. Nixon used this playbook, e.g. But here we have civil servants being paid to act this way.
To have such institutions, pay for by taxpayers, engaging in trolling the internet is highly corrosive of the values of a democratic country. Democratic politics depends on . . .
It will be particularly galling later to read some offensive and outrageous comment by an obvious troll and realize that there’s a reasonable likelihood that you paid to have that comment made through your taxes. We are paying the government to troll us. Does that strike anyone else as odd?
Glenn Greewald writes at The Intercept:
One of the many pressing stories that remains to be told from the Snowden archive is how western intelligence agencies are attempting to manipulate and control online discourse with extreme tactics of deception and reputation-destruction. It’s time to tell a chunk of that story, complete with the relevant documents.
Over the last several weeks, I worked with NBC News to publish a series of articles about “dirty trick” tactics used by GCHQ’s previously secret unit, JTRIG (Joint Threat Research Intelligence Group). These were based on four classified GCHQ documents presented to the NSA and the other three partners in the English-speaking “Five Eyes” alliance. Today, we at the Intercept are publishing another new JTRIG document, in full, entitled “The Art of Deception: Training for Online Covert Operations” (note: this document may take a couple of minutes to appear at the link).
By publishing these stories one by one, our NBC reporting highlighted some of the key, discrete revelations: the monitoring of YouTube and Blogger, the targeting of Anonymous with the very same DDoS attacks they accuse “hacktivists” of using, the use of “honey traps” (luring people into compromising situations using sex) and destructive viruses. But, here, I want to focus and elaborate on the overarching point revealed by all of these documents: namely, that these agencies are attempting to control, infiltrate, manipulate, and warp online discourse, and in doing so, are compromising the integrity of the internet itself.
Among the core self-identified purposes of JTRIG are two tactics: (1) to inject all sorts of false material onto the internet in order to destroy the reputation of its targets; and (2) to use social sciences and other techniques to manipulate online discourse and activism to generate outcomes it considers desirable. To see how extremist these programs are, just consider the tactics they boast of using to achieve those ends: “false flag operations” (posting material to the internet and falsely attributing it to someone else), fake victim blog posts (pretending to be a victim of the individual whose reputation they want to destroy), and posting “negative information” on various forums. Here is one illustrative list of tactics from the latest GCHQ document we’re publishing today:
Other tactics aimed at individuals are listed here, under the revealing title “discredit a target”:
Then there are the tactics used to destroy companies the agency targets: . . .
Continue reading. There is more, all disturbing.
This is far beyond what I think governments should be doing. Indictments leading to trials in open court where the accused can confront and cross-examine accusers and the evidence can be considered by a jury is one thing. Character assassination or actual assassination without any due process is something else entirely, and such actions are the signature of an oppressive government: oppressive governments do not like (or use) due process. And such governments very much want to keep their actions secret from their citizens.
Not to put too fine a point on it, NSA and GCHQ and the like have assumed the power to destroy those whom they dislike, whether individual persons or companies, simply on their own decision, with no effective review or control. (FISA Court? The FISA Court approves everything put before it and doesn’t ask questions. The Congressional Intelligence committees? They don’t know what’s happening and they don’t seem to want to find out.) When did the US decide that due process was too cumbersome?
Don’t these agencies realize that Constitutional protections were created for a purpose and based on much (bad) experience with governments assuming too much power?
This situation is far out of control. And, as Greenwald points out, the targets now are not terrorists or hostile nations, but simply civilians and companies espousing views the government agencies do not like.
Eric Holder is not much of an Attorney General, IMO. Kevin Drum writes at Mother Jones:
On Friday, Attorney General Eric Holder issued a new set of guidelines designed to make it harder for law enforcement officials to seize the records of journalists:
Among other things, the rules create a presumption that prosecutors generally will provide advance notice to the news media when seeking to obtain their communications records….The rules also address a law forbidding search warrants for journalists’ work materials, except when the reporter is a criminal suspect. It says that the exception cannot be invoked for conduct based on “ordinary news-gathering activities.”
….The rules cover grand jury subpoenas used in criminal investigations. They exempt wiretap and search warrants obtained under the Foreign Intelligence Surveillance Act and “national security letters,” a kind of administrative subpoena used to obtain records about communications in terrorism and counterespionage investigations.
But Marcy Wheeler points out that most of the DOJ leak investigations that prompted media outrage last year and led to these new rules are, in fact, related to national security. And NSLs have the least oversight of any form of subpoena: they can be issued by just about anyone, and require no approval from a court.
Does this mean, as Wheeler pungently puts it, that these new guidelines are “worth approximately shit” in any leak investigation that’s actually likely to take place? I’m not sure about that. You can’t get a wiretap with an NSL, for example. Still, it certainly seems to be a Mack-truck-sized loophole in these new rules. There’s less here than meets the eye.
Glenn Greenwald writes at The Intercept:
I’m going to have a story published later today about a new document, but until then, this new interview with (and profile of) Director of National Intelligence James Clapper by the Daily Beast‘s Eli Lake is worth spending a few moments examining. Last week, Lake published one excerpt of his interview where Clapper admitted that the U.S. Government should have told the American people that the NSA was collecting their communications records: as pure a vindication of Edward Snowden’s choice as it gets, for obvious reasons. But there are several new, noteworthy revelations from this morning’s article:
Thanks to rogue contractor Edward Snowden, the machinations of the shadow bureaucracy Clapper heads have for the last eight months been exposed one news story at a time. Clapper is often the guy who has to call newspaper editors to tell them not to print stories that they usually publish anyway.
This process of pre-publication notice to the government of NSA stories has been wildly misreported in some places. I’ve long expressed contempt for this process where it results in the suppression of information that should be public; where it essentially elevates U.S. officials into publication partners by engaging in protracted “negotiations” with them over what can and cannot be published; and especially where it means news organizations knowingly allow government officials to lie by withholding the actual facts.
For all the NSA stories published over the last eight months all around the world, the U.S. government was notified prior to publication (usually very shortly prior) by the news organizations’ editors (never, to my knowledge, by the journalists, at least not by me). News organizations do this for two reasons.
The first is legal: the U.S. Government insists that the publication of classified information, especially that which relates to “communications intelligence”, is a felony (see 18 U.S § 798), so every media lawyer vehemently argues that allowing the government an opportunity to make the case for why something shouldn’t be published is necessary to show a lack of criminal intent, i.e., to avoid criminal prosecution even while publishing top secret documents; the other is journalistic: it makes sense that journalists making choices about what to publish and what to say about documents would want more, rather than less, information when deciding.
I can’t speak for what The Washington Post or New York Times have done, but for the NSA articles on which I’ve worked – at the Guardian and with more than a dozen media outlets around the world - the government has argued in most cases that the story and accompanying documents should not be published. And in almost every single case – 99% if not more – those arguments have been rejected in their entirety and the stories and documents were published anyway. In fact, for the dozens and dozens of stories and documents on which I’ve worked, I can only recall a single case where anything the government said resulted in anything being withheld that we had decided to publish, and that was a trivial aspect of one part of one document which, unbeknownst to us, could have revealed the identity of an NSA employee (the Guardian and New York Times, without my involvement, both withheld some details on their story about NSA/GCHQ compromising of encryption standards, though primarily – as I understand it – because publishing the handful of compromised standards we knew about would mislead people into believing the other compromised standards (the vast majority of which weren’t revealed by the documents) were safe).
In every single other case, the government’s arguments for non-publication were rejected, usually because they were vague and unpersuasive. So while it’s true that the government’s input has been permitted prior to publication – just as journalists seek the input of anyone about which they’re writing – Lake is correct that in most cases (in my experience, almost all) that official input demanding suppression was rejected, exactly as it should have been.
To this day the U.S. government doesn’t know the full extent of what Snowden revealed or whether more documents that have yet to be published in the press have made their way into the hands of Russian or Chinese intelligence agencies.
It’s been rather amazing to watch not only the standard roster of government-loyal American journalists, but also those who fancy themselves some sort of cynical critics, uncritically regurgitate the government’s evidence-free assertion that Snowden took and then gave to journalists 1.7 million documents. It amazes me because: (1) anyone at this point who is willing to equate evidence-free government assertions with Truth is drowning in some extreme levels of authoritarianism, by definition; and (2) the government clearly has no idea what Snowden took, as report after report has made crystal clear.
Covering nearly an entire wall of the waiting area outside Clapper’s office is a wooden relief sculpture dedicated to the U.S. Constitution. It contains a flag, a rendition of the constitutional assembly, and a copy of the document itself. It also has a plaque that reads, “What is the magic of the Constitution? The magic is how it states: We, the people. For the first time in history, government was about the people, not about the leader.” . . .
Continue reading. There’s more.
The mantra seems to be “Attack. Attack. Attack.” and it holds regardless of what position the President takes. Paul Krugman points out:
It was big news this past week when President Obama dropped the notion of effectively cutting Social Security benefits by switching to “chain-linked” consumer prices, because it marked a turn away from BowlesSimpsonized discourse, from Grand Bargain-seeking. But there’s a bit more to it: an acknowledgement, finally, that today’s Republicans are utterly cynical and untrustworthy, that there’s no point in seeking compromise.
What do I mean? A correspondent reminds me of the sequence of events following last year’s Obama budget, which did include chain-linked CPI, partly in response to Republican demands, partly in an attempt to get praise from the Very Serious People.
My immediate thought was that Obama wouldn’t get the praise he sought, but would be betrayed:
Oh, and wanna bet that Republicans soon start running ads saying that Obama wants to cut your Social Security?
Rep. Greg Walden (R-Ore.), the chairman of the National Republican Congressional Committee who’ll oversee his party’s 2014 midterm efforts, told CNN’s Wolf Blitzer yesterday that the chained-CPI policy is “a shocking attack on seniors.” Walden added that Obama’s proposal is “going after seniors” and “trying to balance this budget on the backs of seniors.”
Other Republicans did try to walk this back — it was too transparently cynical even for the VSPs — but like the campaigning against cuts to Medicare, it showed the futility of offering such things. And I’m assured by people who know that the memory of Walden’s tirade remains very strong among Congressional Democrats; it’s part of why they are so adamantly against Grand Bargaining.
Rebecca Gordon writes at Informed Comment:
Shortly after his first inauguration in 2009, President Obama issued an executive order forbidding torture and closing the CIA’s so-called “black sites.” But the order didn’t end “extraordinary rendition” – the practice of sending prisoners to other countries to be tortured. (This is actually illegal under the U.N. Convention against Torture, which the United States signed in 1994.) And it didn’t close the prison at Guantánamo, where to this day, prisoners are held in solitary confinement.
Periodic hunger strikes are met with brutal force feeding. Samir Naji al Hasan Moqbel described the experience in a New York Times op-ed in April 2013:
I will never forget the first time they passed the feeding tube up my nose. I can’t describe how painful it is to be force-fed this way. As it was thrust in, it made me feel like throwing up. I wanted to vomit, but I couldn’t. There was agony in my chest, throat and stomach. I had never experienced such pain before. I would not wish this cruel punishment upon anyone.
The CIA’s black sites may (or may not) have been shut down, but we don’t have any idea what is going on in the detention centers run by the Joint Special Operations Command, especially in parts of Africa. (See Jeremy Scahill’s excellent Dirty Wars for more on this.)
Nor did Obama’s order end torture in another place where it is a daily occurrence, hidden in plain sight: U.S. prisons. It is no accident that the Army reservists responsible for the outrages at Abu Ghraib worked as prison guards in civilian life. As Spec. Charles A. Graner wrote in an email home, about his work at Abu Ghraib, “The Christian in me says it’s wrong, but the corrections officer in me says, “I love to make a grown man piss himself.”
Solitary confinement and the ever-present threat of rape are just two forms of institutionalized torture so commonly suffered by the people who make up the world’s largest prison population. The most recent Guantánamo hunger strikes just happened to coincide with similar actions by people held in solitary confinement in California’s high security prisons.
2. We still don’t have a full, official accounting.
As yet we have no official government accounting of how the United States has used torture in the “war on terror.” This is partly because so many different agencies, clandestine and otherwise, have been involved in one way or another. The Senate Intelligence Committee has written a 6,000-page report just on the CIA’s involvement, which has never been made public. Nor has the Committee been able to shake loose the CIA’s own report on its interrogation program. Most of what we do know is the result of leaks, and the dogged work of dedicated journalists and human rights lawyers. But we have nothing official, on the level, say, of the 1972 Church Committee.
Frustrated because both Congress and the Obama administration were unwilling to demand a full accounting, a blue-ribbon bipartisan committee produced their own damning report. Members included former DEA head Asa Hutchinson, former FBI chief William Sessions, and former U.S. Ambassador to the United Nations Thomas Pickering. The report reached two important conclusions: 1) “[I] t is indisputable that the United States engaged in the practice of torture,” and, “[T] he nation’s highest officials bear some responsibility for allowing and contributing to the spread of torture.”
3. . .
It strikes me that Obama is a little too quick to make promises: all too often, his promises are broken, sometimes very quickly. Greg Miller writes in the Washington Post:
A U.S. drone strike in December that killed at least a dozen people in Yemen failed to comply with rules imposed by President Obama last year to protect civilians, according to an investigation by a human rights organization released Thursday.The report by Human Rights Watch concluded that the strike, which was carried out by the U.S. military’s Joint Special Operations Command, targeted a line of vehicles that were part of a wedding procession, and that evidence indicates “some, if not all those killed and wounded were civilians.” The findings contradict assertions by U.S. officials that only militants were killed in the operation, although the report acknowledged that members of al-Qaeda in the Arabian Peninsula, the terrorist network’s affiliate in Yemen, may have been among the dead.Overall, Human Rights Watch “found that the operations did not comply with the targeted killing policies that President Obama outlined” in a speech in May, the report said, citing in particular Obama’s requirement of “near-certainty” that no civilians would be harmed.The report represents the most detailed independent examination to date of a strike that has focused attention on the administration’s struggles to tighten the rules for targeted killing, provide more information about such operations to the public and gradually shift full control of the drone campaign from the CIA to the Pentagon.
Caitlin Hayden, a spokeswoman for the National Security Council, declined to comment on the report or the Dec. 12 strike but said the United States takes “extraordinary care” in its counterterrorism operations to avoid civilian casualties and noted that Yemeni officials described the targets as “dangerous senior al-Qaeda militants.”
The investigation by Human Rights Watch, a group that has been consistently critical of the targeted killing program, concluded that the attack killed 12 men, ages 20 to 65, and wounded 15 others, citing accounts from survivors, relatives of the dead, local officials and news media reports.
The attack targeted a convoy of 11 vehicles traveling from the site of a wedding near the city of Rad’a to the groom’s village, according to the report, which said that the bride was among a small number of female travelers and that “shrapnel grazed the bride under one eye, and blew her trousseau to pieces.” . . .
Continue reading. I wonder whether this was one of the strikes made on a cellphone rather than a person. And it seems that US officials routinely lie to the public. Unfortunate, but I suppose it is one of the things we simply have to accept and allow for. (Cf., of course, James Clapper.)
UPDATE: And be sure to read this report at The Intercept by Ryan Devereaux. Just one part of that article:
. . . Obama administration officials have insisted since the strike that only members of al Qaeda were killed. Defense Department spokesman Bill Speaks reiterated to TheIntercept on Wednesday “that the Yemeni Government has stated that the targets of this operation were dangerous senior al Qaeda militants,” but he declined to provide any details or evidence to support that conclusion. National Security Council spokeswoman Caitlin Hayden also declined.
The Associated Press reported Thursday morning that, according to three anonymous U.S. officials, two government investigations concluded that only members of al Qaeda were hit in the strike:
Lt. Gen. Joseph Votel, commander of Joint Special Operations Command, ordered an independent investigation by an Air Force general and the White House requested another by the National Counterterrorism Center. Both concluded no civilians were killed. Votel’s staff also showed lawmakers video of the operation. Two U.S. officials who watched the video and were briefed on the investigations said it showed three trucks in the convoy were hit, all carrying armed men.
officialprovided no details, no evidence — and were not bequoted by name. The AP explained:
The officials said the Pentagon can’t release details because both the U.S. military and the CIA fly drones over Yemen. By statute, the military strikes can be acknowledged, but the CIA operations cannot. The officials said that if they explain one strike but not another, they are revealing by default which ones are being carried out by the CIA.
But at its core, the Human Rights Watch report makes the case that a swirling mix of competing accounts surrounding the strike demands a transparent investigation and publicly available findings. In an interview with The Intercept Wednesday, Letta Tayler, the author of the report, said the contradictory claims her team uncovered investigating the strike were “mind boggling.”
“It would be comical if we were not talking about human beings who were killed and yet, that is what we’re talking about,” Tayler said. “And that’s why the silence is unconscionable.”
“The contradictory accounts that we documented cry out for an official explanation,” she added. “The families of those killed deserve to know what happened and why the U.S. turned this wedding procession into a funeral.”
Tayler said her organization has “serious questions about how intelligence is gathered in Yemen and how it is being used.” But, she noted: ”We do not know if faulty intelligence led to this strike or not, because we do not know enough about the strike itself.” . . .
Again, the issue is in part whether we can trust US officials to speak the truth if the facts are inconvenient, embarrassing, and/or illegal. Prior experience shows that we cannot. An open and transparent investigation is the only solution. Likelihood of that, with this administration? Pretty low, I’d say.
Amy Davidson writes for the New Yorker:
This is a country that likes trials of the century—a couple of them a year, if possible. We’ve also, as politicians remind us, been convulsed as a nation by the September 11th attacks, which are supposed to have changed our expectations of everything from Presidents to airplane rides and privacy. The one thing that the memory of 9/11 hasn’t had the power to do, strangely, is get us engrossed in the actual judicial proceedings involving members of Al Qaeda. When it comes to bringing terrorists to justice in a courtroom, we seem to get bored.
The military commission trying Abd al-Rahim al-Nashiri, accused of being behind Al Qaeda’s attack, in 2000, on the U.S.S. Cole, convened for hearings this week in Guantánamo Bay; only one reporter, Carol Rosenberg of the Miami Herald, made it down there. Sulaiman Abu Ghaith, Osama bin Laden’s son-in-law, goes on trial next week, for alleged involvement in post-2001 plots, with his lawyers coming closer to eliciting testimony from Khalid Sheikh Mohammed, the professed 9/11 mastermind. K.S.M. himself may not go to trial until next year; there have been repeated delays. But who would even know if there weren’t? Although they were followed closely in certain quarters, the eyes of the nation have not exactly turned to his pre-trial hearings, which have staggered along at Guantánamo, like an out-of-town show that no one has any intention of seeing. The week after next, K.S.M. will have been our prisoner for eleven years, and we haven’t managed to convict him of anything. What happened to the desire for a big trial to show the world what our legal system can accomplish?
What is odd is that the name “Al Qaeda” is still toxically stimulating—but only, it seems, when it is applied to Benghazi or to activity on the phone lines of Americans. It has power when it is used politically, theoretically, abstractly—as a measure of distance from a certain ideology, or in the service of the story someone wants to tell, or as a way to ignore restraints. When it comes to a prisoner and the proceedings (or lack of them) against him, though, “Al Qaeda” seems to have a somnolent quality. We just want to be woken up in a few years, after whatever ruling comes down from whatever judge has been assigned to cases we haven’t sorted out. There is a vague sense that the term “bringing to justice” only has to do with drones.
Why is this? It’s not just a matter of attention span—again, Americans love following trials. But maybe they like real trials; the kind that move to the logic we’ve learned from a thousand shows. Most of the defendants aren’t being tried, say, in the Southern District of New York, in the city where people were murdered on 9/11. Instead, it’s all taking place in tossed-together military commissions at Guantánamo, with no party really sure how it’s all supposed to work. Sometimes “unprecedented” means momentous; sometimes it means that nobody knows basic rules, like whether the judge or the prison-camp commander gets to decide what the defendants wear. The pretrial hearings for K.S.M. and the other alleged 9/11 conspirators have, at times, been like bizarre exercises in legal improv—embarrassing to watch. Last week, prosecutors added a conspiracy charge to the case against Abd al Hadi al Iraqi. This would, as Charlie Savage, of the Times pointed out, be a straightforward move if these were prosecutors in a real court (and, lest anyone forget, we have plenty of real courts available in this country). But no one is sure if conspiracy, which is not an internationally recognized war crime, is something you can try before a military commission. So there will likely be more hearings, delays, and litigation—just to establish the parameters. . .
A very interesting reading that the action was not human error. Kevin Gosztola writes in Salon:
In recent weeks, it has been learned that a Malaysian doctoral student, who was twice granted a visa from the United States to study and obtain degrees in architecture, including a Ph. D, had her due process rights violated when she was placed on the no-fly list. She never posed a threat to the US, something the government conceded in a trial in December of last year. Yet, according to the government, her placement on the list was a result of “human error,” not because of the intricate system of putting people on watch lists that has developed since the September 11th attacks.
On January 2, 2005, Dr. Ibrahim was scheduled to be on board a flight from San Francisco to Kona, Hawaii. San Francisco police claimed she had “overstayed her visa,” according to a filed trial brief. Immigration documents showed this was not correct. Still, police led her away in handcuffs in front of her daughter, Rafeah, and about 50 others who were in line at a United Airlines counter. (Rafeah is a US citizen.)
Ibrahim was “publicly humiliated” and “imprisoned for approximately two hours, searched in a culturally insensitive manner, denied her medication until the paramedics were called and denied the ability to use the restroom in private.” She wanted to speak to an FBI agent named Kevin Kelley, the same agent who apparently committed the “human error” in this case that led to her being put on the no-fly list. She thought speaking to him would make it possible to clear her name. She did not get to speak with him and was released without any explanation.
Lee Korman, an Aviation Security Inspector with the Department of Homeland Security met Dr. Ibrahim in the holding cell and informed her that her name had been removed from the no-fly list. She was put on a flight the next day, but it was clear her name was not totally cleared. She was given a “bright red colored boarding pass” and given an “SSSS” status that led agents to subject her to “enhanced searches.”
In March 2005, when she wanted to travel to the US to complete her thesis, she was told her visa had been revoked and could not board her flight from Kuala Lumpur. And, again, in 2009, when she attempted to obtain a visa to travel to the US to be deposed for her case against the US government and to participate in her own trial, she was told she could not travel because of a section of the Immigrant and Nationality Act. When she asked what the section meant, a State Department representative wrote out the word “terrorist” on her visa application, right in front of her.
Ultimately, the judge decided her due process rights had been violated.
“This was no minor human error but an error with palpable impact, leading to the humiliation, cuffing and incarceration of an innocent and incapacitated air traveler. That it was human error may seem hard to accept—the FBI agent filled out the nomination form in a way exactly opposite from the instructions on the form, a bureaucratic analogy to a surgeon amputating the wrong digit—human error, yes, but of considerable consequence,” Judge William Alsup concluded.
Judge Alsup also wrote in his order, “FBI Agent Kelley made a plain, old-fashioned, monumental error in filling out the VGTOF [Violent Gang and Terrorist Organization File] nomination form for Dr. Ibrahim. He checked the boxes in exactly the opposite way from the instructions on the form, thus nominating Dr. Ibrahim to the no-fly list (against his intention). This was the start of all problems in Dr. Ibrahim’s case. Surprisingly, Agent Kelley first learned of this mistake eight years later at his deposition.”
Litigation began in 2006. The government initially won a dismissal of the case in August 2006 because the Transportation Security Administration had exclusive jurisdiction over review of orders of the TSA. A court of appeals subsequently reversed that decision in part.
As litigation continued and a court of appeals eventually found Dr. Ibrahim had a “substantial voluntary connection” to the US that would permit her to challenge her placement on the no-fly list, the government decided to invoke “state secrets privilege,” often abused to conceal information, hide embarrassing facts and prevent victims of government abuse from bringing cases. The government also invoked the “law enforcement privilege” and a privilege involving “sensitive security information” (SSI). This was done so the government would not have to inform Dr. Ibrahim of why she had been placed on the no-fly list.
The case moved closer to trial. The government eventually assured the judge that it would not invoke “state secrets” and rely on any information that had not been shared with Dr. Ibrahim and her lawyers. The judge issued a September 2013 order that made it clear, “The Government may not affirmatively seek to prevail in this action based upon information that has been withheld on grounds of privilege.” However, frustrating the judge, the government attempted to have the action dismissed at trial by refusing to “disclose state secrets.”
The government failed to block Dr. Ibrahim’s lawyers from getting an opportunity to challenge the government over her improper listing. “State secrets privilege”—an oft-abused claim that had worked in prior cases involving torture, rendition and warrantless wiretapping—did not work this time.
What was the government to do in order to prevent this case from having some kind of significant ramification for the whole system of placing individuals on the no-fly list? . . .
Continue reading. Of course, that makes sense only if you believe that a government official would actually lie to the American public.
Liberty and Security in a Changing World: Report and Recommendations of the President’s Review Group on Intelligence and Communications Technologies
December 12, 2013, 303 pp., available at www.whitehouse.gov
Remarks by the President on Review of Signals Intelligence
January 17, 2014, available at www.whitehouse.gov
Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court
by the Privacy and Civil Liberties Oversight Board
January 23, 2014, 234 pp., available at www.fas.org1.
When the secretive Foreign Intelligence Surveillance Court (FISC) first authorized the National Security Agency in May 2006 to collect and search the telephone metadata records of every American—including every number we call, how often we call, when we call, and how long we talk—it did not even write an opinion justifying its decision. Judge Malcolm J. Howard, one of eleven federal judges hand-picked by the chief justice of the Supreme Court to serve on the FISC, simply issued a secret ten-page order, largely comprised of the rules and regulations under which the program was to operate. The order included no discussion whatever of whether the program was constitutional. It asserted formulaically that the government had satisfied the requirements of Section 215 of the USA Patriot Act, but included no explanation of how the program did so.
This is surprising, because on its face, Section 215 would not seem to support the program. It authorizes the FBI, not the NSA, to obtain business records, and only if it can identify specific facts showing that the records are “relevant” to an authorized counterterrorism investigation. Yet the FISC order authorized the NSA, not the FBI, to collect not specific records relevant to a particular terrorism investigation, but all records of all Americans’ every phone call, without showing that any of them were connected to terrorism. Every ninety days thereafter, theFISC routinely—and secretly—reauthorized the program, again without any attempt to explain why it deemed the program lawful.
In fact, the FISC did not issue an opinion explaining its rationale until August 29, 2013, more than seven years after the program had been up and running—and two months after Edward Snowden had disclosed the program to the public. That the FISC would authorize such an unprecedented and sweeping surveillance program, affecting virtually every American, without even bothering to explain its rationale for doing so is emblematic of the problem with secret law in the post–September 11 era. As a rule, the FISC operates in secret, hears only from government attorneys, nearly always grants their requests, and does not publish its orders. The NSA similarly operates almost entirely in the dark. Formally established by a classified executive order in 1952, its existence and operations were so clandestine that the intelligence community wryly referred to it as “No Such Agency.” If your operations are secret, why would you feel any obligation to explain your rationale?
All that changed in June 2013, when . . .
Peter Van Buren writes at TomDispatch.com:
Terrorism (ter-ror-ism; see also terror) n. 1. When a foreign organization kills an American for political reasons.
Justice (jus-tice) n. 1. When the United States Government uses a drone to kill an American for political reasons.
How’s that morning coffee treating you? Nice and warming? Mmmm.
While you’re savoring your cup o’ joe, imagine the president of the United States hunched over his own coffee, considering the murder of another American citizen. Now, if you were plotting to kill an American over coffee, you could end up in jail on a whole range of charges including — depending on the situation — terrorism. However, if the president’s doing the killing, it’s all nice and — let’s put those quote marks around it — “legal.” How do we know? We’re assured that the Justice Department tells him so. And that’s justice enough in post-Constitutional America.
Through what seems to have been an Obama administration leak to theAssociated Press, we recently learned that the president and his top officials believe a U.S. citizen — name unknown to us out here — probably somewhere in the tribal backlands of Pakistan, is reputedly planning attacks against Americans abroad. As a result, the White House has, for the last several months, been considering whether or not to assassinate him by drone without trial or due process.
Supposedly, the one thing that’s held up sending in the drones is the administration’s desire to make sure the kill is “legal.” (Those quotes again.)
Last May, Obama gave a speech on the subject. It was, in part, a response to growing anger in Pakistan, Yemen, and elsewhere over the CIA’s ongoing drone assassination campaigns with all their “collateral damage,” and to the White House’s reported “kill list.” In it, he insisted that any target of the drones must pose “a continuing and imminent threat to the American people.” At the time, the White House also issued a fact sheet that stated: “Lethal force must only be used to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively.” While that sounds like a pretty imposing set of hurdles to leap, all of the “legal” criteria are determined in secret by the White House with advice from the Justice Department, but with no oversight or accountability.
Even then, it turns out that the supposedly tortured deliberations of the administration are not really necessary. Despite the president’s criteria,according to an unnamed administration official quoted by the Associated Press, Obama could make an exception to his policy and authorize the CIA to strike on a one-time basis, no matter what the circumstances. One way or another, it is Obama who decides who to kill and when.
At this point, it’s unclear just why the Obama administration leaked its plans in reference to this errant American abroad. After all, official after official has insisted that Edward Snowden’s revelations of secret NSA documents have caused terrorists to change their communication tactics, yet the one American up to no good somewhere in the terrorist world apparently has not done so in response to the leak about his potential fate, and will remain locatable whenever needed as a target. And yet giving notice of a possible attack in advance in the media would, on the face of it, seem both counterproductive and an invitation to the very barrage of criticisms leveled by key officials at Snowden. After all, under the circumstances, an American connected with al-Qaeda wouldn’t exactly have to be a Bond villain to decide to change his behavior and his location, stay indoors or outdoors more, keep off his phone for a while or trade it in for another.
Could the administration leak have been a trick to flush the bad guy out, causing him to panic and run? Was it an elaborate ruse designed to induce widespread concern in al-Qaeda about the liabilities of having American compatriots? Was it a bone thrown to Republicans otherwise eager to paint the president as weak? Could it have been some kind of geopolitical muscle tussle with once compliant but now more assertively anti-drone Pakistan? Or could the leak have been a PSYOP on the American people, an attempt to manipulate us into feeling better about government decisions to kill American citizens by revealing the deliberative and heart-wrenching process Obama goes through? Or could it simply have been an attempt to normalize such acts for us, to make them part of the understandable everyday background noise of a dangerous world?
The answer is: we don’t know. Not yet anyway.
Not the First Time
The Obama administration admits to killing four Americans as part of its war on (or is it “war of”?) terror. We’ll pause here a moment for you to contemplate whether there could have been other, undocumented killings of the same sort awaiting the revelations of some future Edward Snowden or Chelsea Manning.
On May 7, 2011, a U.S. drone fired a missile in Yemen aimed at American citizen and key terror suspect Anwar al-Awlaki. The missile blew up a car with two other people in it, quickly labeled “al-Qaeda operatives” after we killed them.
Such collateral killings should be no surprise. The inaugural article by Glenn Greenwald and Jeremy Scahill at their new media venture notes that the National Security Agency regularly identifies targets for CIA assassinations based on metadata analysis and cell-phone tracking. Rather than confirming that target’s identity, the CIA is evidently ready and willing to blow a suspect away based on the location of a mobile phone he assumedly is using. In other words, people can be killed because they borrowed the wrong cell phone. (So much for a deliberative process.)
The U.S. had tried to kill al-Awlaki before, including in the Bush years — and missed. In justifying one of these assassination attempts, Obama’s counterterrorism chief, Michael Leiter,claimed that al-Awlaki actually posed a bigger threat to the U.S. “homeland” than Osama bin Laden, albeit without explanation. No matter, they finally got their man. A follow-up strike killed al-Awlaki, and another soon after obliterated his teenage son, also in Yemen. Though no one argues that the boy was in any way linked to terrorism and no administration official has bothered to explain just why he was targeted, former White House press secretary Robert Gibbs did comment that the killing was justified as he “should have had a more responsible father.” . . .
Good review by Greg Miller in the Washington Post:
The denunciations of Edward Snowden have been accompanied by an unconvincing refrain — that there was a way for him to force a debate about the U.S. surveillance programs that troubled him without exposing America’s espionage capabilities to the world. Snowden’s leaks have raised “legitimate policy questions,” President Obama said in a recent interview with the New Yorker . But “the benefit of the debate he generated was not worth the damage done, because there was another way.”It’s hard to see this supposed alternate path. Was Snowden supposed to raise his misgivings — now shared by many Americans — with the spy agency officials who built the programs? Appeal to the secret court that approved them? Or turn to congressional oversight committees that have responded to his revelations by fighting to keep the surveillance operations intact? The course that Snowden chose instead — surreptitiously stockpiling thousands of classified files, leaking them to news organizations and finally fleeing first to Hong Kong and then Russia — has been polarizing. He has been condemned as treasonous and hailed as courageous. Either way, his story is one of the most compelling in the history of American espionage.“The Snowden Files,” by Luke Harding, a correspondent for the Guardian newspaper, which broke the initial Snowden story, is the first to assemble the sequence of events in a single volume. The book captures the drama of Snowden’s operation in often-cinematic detail but doesn’t necessarily enhance our understanding of the magnitude and impact of the leaks. It is most successful when focused tightly on its then-29-year-old protagonist, whose youth and low station in the spy world were so at odds with the caliber of the material he accessed that his journalist contacts, upon meeting him for the first time, shook their heads in disbelief.
Snowden comes across as . . .
The NSA certainly has little respect for law, which makes their full-throated condemnation of Edward Snowden a bit rich. James Risen and Laura Poitras have an article in today’s NY Times about NSA eavesdropping on a US law firm’s communications with its client, a foreign government negotiating a trade agreement with the US. The NSA repeatedly claims that it must be allowed to do anything that it wants in order to fight the scourge of terrorism, but this eavesdropping has nothing whatsoever to do with terrorism (as often seems to be the case—cf. the heads of state of Germany and Brazil). The NSA is truly out of control, and at a very bad time: when we have a Congress that is able to do very little.
The article begins:
The list of those caught up in the global surveillance net cast by theNational Security Agency and its overseas partners, from social media users to foreign heads of state, now includes another entry: American lawyers.
A top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States. The disclosure offers a rare glimpse of a specific instance of Americans ensnared by the eavesdroppers, and is of particular interest because lawyers in the United States with clients overseas have expressed growing concern that their confidential communications could be compromised by such surveillance.
The government of Indonesia had retained the law firm for help in trade talks, according to the February 2013 document. It reports that the N.S.A.’s Australian counterpart, the Australian Signals Directorate, notified the agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information.
The Australians told officials at an N.S.A. liaison office in Canberra, Australia, that “information covered by attorney-client privilege may be included” in the intelligence gathering, according to the document, a monthly bulletin from the Canberra office.
The law firm was not identified, but Mayer Brown, a Chicago-based firm with a global practice, was then advising the Indonesian government on trade issues.
On behalf of the Australians, the liaison officials asked the N.S.A. general counsel’s office for guidance about the spying. The bulletin notes only that the counsel’s office “provided clear guidance” and that the Australian eavesdropping agency “has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.”
The N.S.A. declined to answer questions about the reported surveillance, including whether information involving the American law firm was shared with United States trade officials or negotiators.
Duane Layton, a Mayer Brown lawyer involved in the trade talks, said he did not have any evidence that he or his firm had been under scrutiny by the Australian or American intelligence agencies. “I always wonder if someone is listening, because you would have to be an idiot not to wonder in this day and age,” he said in an interview. “But I’ve never really thought I was being spied on.”
Most attorney-client conversations do not get special protections under American law from N.S.A. eavesdropping. Amid growing concerns about surveillance and hacking, the American Bar Association in 2012 revised its ethics rules to explicitly require lawyers to “make reasonable efforts” to protect confidential information from unauthorized disclosure to outsiders.
Last year, the Supreme Court, in a 5-to-4 decision, rebuffed a legal challenge to a 2008 law allowing warrantless wiretapping that was brought in part by lawyers with foreign clients they believed were likely targets of N.S.A. monitoring. The attorneys contended that the law raised risks that required them to take costly measures, like traveling overseas to meet clients, to protect sensitive communications. But the Supreme Court dismissed their fears as “speculative.”
The N.S.A. is prohibited from targeting Americans, including businesses, law firms and other organizations based in the United States, for surveillance without warrants, and intelligence officials have repeatedly said the N.S.A. does not use the spy services of its partners in the so-called Five Eyes alliance — Australia, Britain, Canada and New Zealand — to skirt the law. . .
Continue reading. I believe “skirt the law” is a tactful way of saying “break the law.”
Jonathan Chait explores Karl Rove’s blind spots in New York magazine:
Karl Rove is most famous for being architect of one of the worst presidencies in American history and then a Superpac strategist/delusional Romney campaign-night dead-ender. I’m a Rove junkie, and just as a snobbish fan of any popular band must have some obscure album he finds superior to the band’s most popular work, the Rove career function I find most delightful and rewarding is his work as a Wall Street Journal op-ed columnist. This is the medium that truly pulls back the curtain on Rove’s fascinating combination of insularity from facts outside the conservative pseudo-news bubble, delusional optimism, and utter lack of self-awareness. The Journal column is a weekly gift to amateur Rove psychoanalysts everywhere.
Today’s column begins with Rove’s bizarre belief that the health exchanges in Obamacare are a “single-payer” system, reflecting his apparent confusion about what this term means. (The single-payer in a single-payer system is the government, not the insurance companies in the exchanges.) But the main point is the Orwellian proposition that “Mr. Obama’s pattern is to act, or fail to act, in a way that will leave his successor with a boatload of troubles.” What kind of president would bequeath a boatload of troubles to his successor? Oh, the irresponsibility. The first count in Rove’s indictment is the budget deficit, which “was equal to roughly 40% of GDP when Mr. Obama took office. At last year’s end it was 72% of GDP.” One possible cause of this deficit might be the over-trillion-dollar annual deficit, that one George W. Bush handed over when he left office, along with the massive economic collapse.
Rove’s column goes on to express very strong views on the need for fiscal responsibility:
Then there’s Medicare, whose Hospital Insurance Trust Fund will go bankrupt in 2026. For five years, Mr. Obama has failed to offer a plan to restore Medicare’s fiscal health as he is required by the law establishing Medicare Part D. When Medicare goes belly-up, he will be out of office.
The Congressional Budget Office projects the Affordable Care Act will reduce deficits by more than a trillion dollars in its second decade. Yes, the Hospital Insurance Trust Fund is expected to reach insolvency by 2026, but when Bush left office, that projected insolvency date was nine years earlier. Meanwhile, Medicare’s projected spending has fallen by nearly $600 billion since the passage of Obamacare: . . .
Glenn Greenwald has a good column at The Intercept:
James Clapper, President Obama’s top national security official, is probably best known for having been caught lying outright to Congress about NSA activities, behavior which (as some baseball players found out) happens to be a felony under federal law. But – like torturers and Wall Street tycoons before him – Clapper has been not only shielded from prosecution, and not only allowed to keep his job; he has has now been anointed the arbiter of others’ criminality, as he parades around the country calling Americans journalists “accomplices”. Yesterday, as Wired’s Dave Kravets reports, the “clearly frustrated” Clapper went before a Senate committee (different than the one he got caught lying to) to announce that the Snowden disclosures are helping the terrorists:
We’re beginning to see changes in the communications behavior of adversaries: particularly terrorists. A disturbing trend, which I anticipate will continue . . . Terrorists and other adversaries of this country are going to school on U.S. intelligence sources, methods, and tradecraft. And the insights they’re gaining are making our job in the intelligence community much, much harder. And this includes putting the lives of members or assets of the intelligence community at risk, as well as those of our armed forces, diplomats, and our citizens.
As Kravets notes, “Clapper is not the most credible source on Snowden and the NSA leaks.” Moreover, it’s hardly surprising that Clapper is furious at these disclosures given that “Snowden’s very first leak last June” – revelation of the domestic surveillance program – “had the side-effect of revealing that Clapper had mislead the public and Congress about NSA spying.” And, needless to say, Clapper offered no evidence at all to support his assertions yesterday; he knows that, unlike Kravets, most establishment media outlets will uncritically trumpet his claims without demanding evidence or even noting that he has none.
But in general, it’s hardly surprising that national security officials claim that unwanted disclosures help terrorists. Fear-mongering comes naturally to those who wield political power. Particularly in post-9/11 America, shouting “terrorists!” has been the favorite tactic of the leadership of both parties to spread fear and thus induce submission.
In a recent New York Times op-ed detailing how exploitation of terrorism fears is the key to sustaining the modern surveillance state, Northwester University Philosophy Professor Peter Ludlow wrote that “since 9/11 leaders of both political parties in the United States have sought to consolidate power by leaning  on the danger of a terrorist attack”. He recounted that ”Machiavelli notoriously argued that a good leader should induce fear in the populace in order to control the rabble” and that “Hobbes in ‘The Leviathan’ argued that fear effectively motivates the creation of a social contract in which citizens cede their freedoms to the sovereign.” It would be surprising if people like Clapper didn’t do this.
But what has struck me is how seriously many media figures take this claim. In the vast majority of interviews I’ve done about NSA reporting, interviewers adopt a grave tone in their voice and trumpet the claims from U.S. officials that our reporting is helping the terrorists. They treat these claims as though they’re the-by-product of some sort of careful, deliberative, unique assessment rather than what it is: the evidence-free tactics national security state officialsreflexively invoke to discredit all national security journalism they dislike. Let’s review a bit of history to see how true that is.
Here, for instance, is Dick Cheney, in a June, 2006 speech, condemning The New York Times for its reporting on the NSA warrantless eavesdropping and SWIFT banking programs, soundingexactly like James Clapper yesterday, along with countless Democratic commentators and blogs over the last year:
Some in the press, in particular The New York Times, have made it harder to defend America against attack by insisting on publishing detailed information about vital national security programs.
First they reported the terrorist surveillance program, which monitors international communications when one end is outside the United States and one end is connected with or associated with al Qaeda. Now the Times has disclosed the terrorist financial tracking program.
On both occasions, the Times had been asked not to publish those stories by senior administration officials. They went ahead anyway. The leaks to The New York Times and the publishing of those leaks is very damaging to our national security.
The ability to intercept al Qaeda communications and to track their sources of financing are essential if we’re going to successfully prosecute the global war on terror. Our capabilities in these areas help explain why we have been so successful in preventing further attacks like 9/11. And putting this information on the front page makes it more difficult for us to prevent future attacks. Publishing this highly classified information about our sources and methods for collecting intelligence will enable the terrorists to look for ways to defeat our efforts. These kinds of stories also adversely affect our relationships with people who work with us against the terrorists. In the future, they will be less likely to cooperate if they think the United States is incapable of keeping secrets.
Cheney was joined by George Bush, who called the NYT’s reporting “disgraceful” and said: “The fact that a newspaper disclosed it makes it harder to win this war on terror.” Bush White House spokesman Tony Snow added: “In choosing to expose this program, despite repeated pleas from high-level officials on both sides of the aisle, including myself, the Times undermined a highly successful counterterrorism program and alerted terrorists to the methods and sources used to track their money trail.”
Bush made exactly the same accusations in 2005 as Clapper did yesterday after the NYT back then (finally) revealed the NSA’s warrantless eavesdropping program. “My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we’re discussing this program is helping the enemy….It is a shameful act by somebody who has got secrets of the United States government and feels like they need to disclose them publicly.” A week later, Bush officials announced a criminal investigation of the leaks and said: “Our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, [and] endangers our country.”
Meanwhile, the GOP-led House actually passed a formal resolution condemning the NYT and “call[ing] on news organizations to avoid exposing Americans ‘to the threat of further terror attacks” by revealing U.S. government methods of tracking terrorists.” Then House Majority Leader John Boehner said: “We’ve just tipped off all of the terrorists around the world that here is another way that we could have caught you, but now you know about it.” Rep. Mike Oxley, the GOP Chairman of the House Financial Services Committee, called the paper’s reporting “treasonous”, saying: “We are at war, ladies and gentlemen. Now some of you folks find that an inconvenient fact.” GOP Congressman Peter King called for the prosecution of the Times journalists and editors responsible for the stories – “We’re at war, and for the Times to release information about secret operations and methods is treasonous,” he said – just as he’s done for journalists involved in the current NSA reporting.
These same platitudes have been hauled out by U.S. officials for decades. . .
Dan Froomkin has an excellent column at The Intercept:
The Intercept’s inaugural exposé, by my colleagues Glenn Greenwald and Jeremy Scahill, illuminates the deeply flawed interaction between omnipresent electronic surveillance and targeted drone killings –- two of the three new, highly disruptive instruments of national power that President Obama has pursued with unanticipated enthusiasm.
All three (the third being cyberwar) have a lot in common. Despite their staggering implications, Obama has proceeded to establish the rules for them unilaterally, almost entirely in secret, based on dubious legal arguments, largely unchecked by judicial or congressional oversight, and with a seemingly unshakeable yet remarkably unfounded faith in their value.
But one of the many major takeaways from the eight-month-and-counting exploration of the trove of secret NSA documents Edward Snowden gave journalists is that what may seem like good ideas within the confines of a like-minded military-intelligence establishment look very different when exposed to overdue public scrutiny.
Only then do you find out they don’t work so well. Or that they aren’t really legal, or constitutional. Or that they do more harm than good. Or that the government relies on them too much, at the expense of things that might actually work.
So the fact that two new, secret U.S. government war-making abilities when used in tandem have particularly disastrous consequences for innocent civilians is newsworthy – but unfortunately not that surprising.
Because of the Obama administration’s refusal to disclose its selection or targeting criteria in any detail, it’s impossible to determine with any confidence which or how many of the civilian massacres by drone were the product of an overreliance on SIGINT rather than, say, a HUMINT asset settling a personal score or a government official eliminating possible rivals, or just plain user error.
But it’s probably more than the Obama administration would like you to think. The White House’s record of truth-telling when it comes to drone warfare is appalling. Years of administration arguments that civilian casualties in drone attacks have been inconsequential have proven again and again to be specious. Before Director of National Intelligence James Clapper’s March 2013 assurance to Congress that the government wasn’t collecting data on Americans in bulk, the administration’s single biggest whopper might have been White House counter-terrorism adviser John Brennan’s assertion in June 2011 that over the previous year there had not been a single collateral death from drone strikes.
Exhaustive independent studies by the British Bureau of Investigative Journalism, the New America Foundation and the Long War Journal have documented that civilian casualties are endemic – the latest count is at least 440 since the drone campaigns began, according to the BIJ.
And countless journalistic accounts have described how the strikes are counterproductive, increasing civilians’ sympathy for al Qaeda and its allies in Yemen today as in Pakistan and Afghanstan before, and as in Somalia next.
Obama himself is hardly unaware of the dreadful downside of errant drone strikes. As Daniel Klaidman reported in his book, “Kill or Capture,” Obama authorized his very first drone strike on the third full day of his presidency, after having been assured by then-CIA director Michael Hayden that the targets were high-level al Qaeda and Taliban commanders. The Hellfire missile he sent into a compound in Pakistan instead killed a prominent pro-government tribal elder and four members of his family, including two children.
Klaidman wrote that Obama was “understandably disturbed” when he found out what happened, and insisted on some procedural changes. But civilian casualties continued. And each time, Obama evidently convinced himself that it wouldn’t happen again.
His most recent public assurance came in an October 2013 speech to the United Nations, where he announced that he had “limited the use of drones so they target only those who pose a continuing, imminent threat to the United States where capture is not feasible, and there is a near certainty of no civilian casualties.”
Less than two months later, missiles fired by a U.S. drone killed 13 people in a convoy of vehicles headed to a wedding party in Yemen.
How Obama’s faith in his military and intelligence leaders was restored or remained unflagging after all these incidents, despite the skepticism that he so clearly displayed during his first presidential campaign, is surely one of the great mysteries facing his supporters today, and historians tomorrow.
The spirited and informed public debate we need to have over these new ways of war has been stifled by the Obama administration, which has not only made a mockery of its promises of transparency, but has set new records in terms of its hostility toward journalistic leaks.
Congress, meanwhile, has shirked its oversight duties, in an unholy alliance of complicit leaders, happy campaign contributors, Republican ultra-hawks and partisan Democrats who don’t want to attack their president, even when he has enshrined precisely the kind of radical militaristic and anti-civil libertarian policies they convinced themselves during the Bush years were temporary aberrations.
And the elite Washington press corps, not yet recovered from its abdication of adversarial journalism after 9/11, has done an astonishingly poor job of raising and pressing important questions.
Where does that leave us? . . .
Secrecy is corrupting: note also the earlier post about the secrets in the DOJ settlement with JP Morgan.
Of course, Obama did promise a transparent administration.
Banks are having conniption fits over the idea of low-income Americans being able to use the Post Office for small financial services. Helaine Olen has a good report on the situation in Reuters:
The U.S. postal service inspector general put out a report last week suggesting an intriguing way to shore up the ailing institution’s finances: Let the mailman double as a bank teller.
The plan? The post office would offer services designed to appeal to America’s unbanked and under-banked — the more than 50 million adults who either have no checking or savings account, or use high-cost, predatory services like payday loans to supplement traditional banking needs.
This sounds like a win-win. Americans — particularly low-income Americans — clearly need greater access to low-cost financial services. At the same time, many financial institutions have been complaining for years that providing banking services to low-income Americans is costing them money. So much so that they can barely bring themselves to open bank branches in anything less than well-heeled neighborhoods.
Surely, they would embrace any plan that could help rid them of these undesirable customers, while offering a new-found opportunity to make money.
Not so fast.
The banking sector immediately threw a hissy fit. “This would be like the banking industry moving into running the airlines,” Richard Hunt, the president and chief executive of the Consumers Bankers Association told American Banker last week. Another executive compared the plan to the Ford Edsel.
What gives? Is it just that bank archenemy Senator Elizabeth Warren (D-Mass.), whose relationship with financial services most resembles Batman’s with the Joker, said she liked the scheme almost immediately?
Let’s take a look.
If the plan went through, in addition to selling stamps and processing mail, the post office would offer prepaid cards — one that would allow users to pay bills online, and withdraw money at ATMs. The post office would also develop services to let customers save and borrow money.
It’s not like the banks would be on the outside looking in. There is a continuing role for them in the inspector general’s plan. Not only could they handle the back office support for these new financial products and services, they could even buy the loans from the post office.
What could the financial services world possibly object to in this? Well, as I say to my children: Just because someone says something, doesn’t mean it’s true.
Turns out banks are not actually losing money on low-income Americans. In fact, the less than wealthy have turned into a nice little profit center for the big banks. If these customers want to stay, the banks make them pay.
The median overdraft charge is $34 at large banks and $30 at smaller financial institutions, according to a report from the Consumer Financial Protection Bureau. The result? Moebs Services, a financial research firm, estimated banks took in $32 billion in overdraft fees in 2012.
That’s not all. Until a recent threat of crackdown by the Consumer Financial Protection Bureau, any number of banks offered something called “deposit advance products.” These were, in essence, a payday loan available at the bank, with annual interest rates of more than 300 percent.
Moreover, many banks see their walk-in customers as an easy source of sales, pitching them on . . .
While I’m sure there are ethical and public-spirited bankers, the proportion who are scum seems to be quite high. And—what’s worse—the Department of Justice (which lied to the court to hide a mistake by an FBI agent) seems to be colluding with banks. David Dayen reports in Salon:
Back in November, I explained how the Justice Department’s settlement with JPMorgan Chase over securities fraud was misleading, inadequate and shameful. Now a public interest group is adding “unlawful” to that roster.
Better Markets, an advocate for financial reform, has filed suit to stop the $13 billion settlement (which actually will cost JPMorgan less than half that) and force it to be reviewed by a court, making the details public. “The Justice Department cannot act as prosecutor, jury and judge and extract $13 billion in exchange for blanket civil immunity to the largest, richest, most politically connected bank on Wall Street,” said Dennis Kelleher, the group’s president and CEO, in announcing the lawsuit. “The executive branch does not have this unilateral power because it violates the constitutional requirement of checks and balances.”
You may recall that the Justice Department was set to hold a press conference announcing civil charges against JPMorgan Chase for selling knowingly substandard mortgage-backed securities to investors. But then Jamie Dimon personally called Tony West, No. 3 at DOJ, and offered a large settlement in exchange for immunity. Dimon then entered into one-on-one negotiations with Attorney General Eric Holder, something no criminal suspect has ever had the pleasure of doing, working out the settlement that was announced last November.
The terms of the settlement released to the public were woefully incomplete, Better Markets explains. The deal never specifies the extent of investor losses resulting from the misconduct. It never says how much profit JPMorgan Chase made off of years of pervasive fraud. No details of any Justice Department investigation were revealed. No individual executives were named in the agreement, and no references to specific violations of law cited. As Bloomberg’s Jonathan Weil reported at the time, the “statement of facts” agreed to by JPMorgan Chase (which Better Markets calls “a very short, largely uninformative summary of conduct engaged in by some unidentified staff”) was carefully crafted to have no value in any future litigation by private investors or homeowners. The Justice Department didn’t even do the standard work of obligating JPMorgan to change its business practices. It was essentially a unilateral contract between a law enforcement agency and a bank, standing in for a settlement with force of law.
Better Markets alleges that the Justice Department violated the separation of powers and the Administrative Procedures Act by making this arbitrary agreement without judicial review, and violated the Financial Institutions Reform, Recovery and Enforcement Act of 1989, which DOJ explicitly states was the impetus for the $2 billion civil penalty. This appears to be the strongest part of the argument, as the FIRREA statute is clear that the attorney general must file a civil action to recover any civil penalty, which must be “assessed by the court.”
The complaint even hints that the Justice Department has a conflict of interest, desiring to reverse criticism of its practically nonexistent enforcement of financial crisis misbehavior. “The DoJ and the Attorney General have aggressively used the $13 billion agreement to try and restore their reputations and rebut these charges,” Better Markets writes. “Structuring the agreement so that there would be no judicial review ensured that there would be no independent check on their claims.”
Here’s why our judicial system may prove unable to deal with such a challenge, however. In order to get the injunction it seeks, Better Markets must prove standing to sue, proving that it was personally harmed by the Justice Department’s settlement. This is the way it approaches the standing issue in the complaint: “Better Markets has standing to bring this action because the DOJ’s violations of the Constitution, the APA, and FIRREA have injured and continue to injure Better Markets by undermining its mission objectives; by interfering with its ability to pursue its advocacy activities; by forcing it to devote resources to counteracting the harmful effects of the DOJ’s unlawful settlement process; by depriving Better Markets of the information to which it would have been entitled had the DOJ sought judicial review and approval of the $13 Billion Agreement; and by depriving Better Markets of a judicial forum in which it could seek to participate to influence the settlement process before the agreement becomes effective.” . . .
The Department of Justice under Holder has really gone downhill fast. And apparently Obama is okay with that.
The US government has handled the finance industry much as it handles the oil industry: with kid gloves, pretty much insulating the businesses from true accountability. I’m pleased to see that actions are being taken to redress the injustice. Alan Pyke writes at ThinkProgress:
The Justice Department (DOJ) broke the law when it settled mortgage finance market fraud allegations against JP Morgan in a headline-grabbing legal settlement last year, according to a lawsuit filed Monday by the Wall Street reform advocacy group Better Markets.
By granting the bank immunity from further civil suits, Better Markets President Dennis Kelleher said, the DOJ acted “as prosecutor, jury and judge…to the largest, richest, most politically-connected bank on Wall Street.” Kelleher’s group wants judicial review of the facts underlying the settlement to ensure that JP Morgan pays a penalty that is proportional to the bank’s misdeeds, and says that the DOJ’s failure to seek a judge’s independent approval violates the separation of powers required by the Constitution.
The deal between JP Morgan and the DOJ stemmed from allegations that the bank had knowingly misrepresented the quality of mortgage-backed securities that it sold. Since the deal’s on-paper costs evaporate under scrutiny — JPM can write almost the entire thing down on its taxes, costing less than half of what the DOJ claimed — the settlement has drawn a great deal of criticism since it was announced last fall. Better Markets echoed those criticisms in its statement on the lawsuit, accusing the government of “using the large dollar amount to blind everyone to the reality that they have disclosed no meaningful facts about what JP Morgan Chase did.”
That alleged lack of factual disclosure is the central target of the group’s ire. One of the few bright spots in the JP Morgan deal was supposed to be that the bank acknowledged it had done what the government accused it of doing. Since regulators started to seek admissions of wrongdoing in such settlements last year after years of activist and lawmaker frustration with deals that allowed firms to “neither admit nor deny” alleged misdeeds, the news that JP Morgan had formally agreed to the DOJ’s version of events seemed exciting. But the deal didn’t include a full admission of wrongdoing. Instead, JP Morgan agreed to a “statement of facts” of the case. As Bloomberg View’s Jonathan Weil pointed out in November, that statement was carefully worded to avoid providing any useful information to clients, private investors, or homeowners wronged by JP Morgan. “The bank didn’t admit to violating any laws” or “identify any specific people or bonds,” Weil wrote. “For that matter, the Justice Department gave no indication that it would be filing court papers accusing JP Morgan of violating any laws, so its portion of the deal won’t need a judge’s approval.”
Better Markets’ suit is designed to reverse that last failure and force judicial review of the settlement and of the case the DOJ had built prior to winning the bank’s surrender. The bank appears to fear that level of scrutiny. As Better Markets notes in a fact sheet on the lawsuit, the DOJ was reportedly on the verge of filing official charges and taking JP Morgan to court when its CEO Jamie Dimon personally called a top DOJ official four hours before charged would be announced to raise the bank’s settlement offer and keep the matter out of court.
The lawsuit could also have implications for the financial industry as a whole. The JP Morgan deal is supposed to be a template for other Wall Street settlements, meaning that its failures and loopholes would be replicated across the whole industry. Even though bank officials publicly complain about the deal, the reality is that it was a very good resolution to JP Morgan’s problems. If it is derailed, the financial industry will lose its best escape route from real accountability for the multi-trillion-dollar financial crisis.