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Urgent recall notices

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Written by LeisureGuy

24 May 2015 at 10:08 am

Government secrecy, government leaks, and the NY Times

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Margaret Sullivan, the Public Editor of the NY Times (and the best Public Editor they’ve had to date), has an interesting column today:

Since 9/11, the United States’ “war on terror” has become the overarching news story of our time.

As the nation’s dominant news organization, The Times deserves, and gets, intensive scrutiny for how it has handled that story. The grades, clearly, are mixed. Its role in the run-up to the Iraq War has been rightly and harshly criticized. Its early reporting on surveillance, though delayed, was groundbreaking. Its national-security reporting has been excellent in many ways and, at times, is justifiably slammed for allowing too much cover for government officials who want to get their message out.

Nearly 14 years after 9/11, a reckoning finally is taking place. The Times’s executive editor, Dean Baquet, has said repeatedly in recent months that he thinks it’s time to toughen up and raise the bar.

Here’s what he told me recently, in the context of a column I wrote about covering drone strikes and the death of civilians:

“We’ve learned the perils of not monitoring and policing warfare” as rigorously as possible, and of too readily agreeing to government requests to withhold information.

“We were too soft years ago — at least, I’ll say that I was.”

As part of this change of heart, Mr. Baquet recently gave approval to publish the names of three undercover Central Intelligence Agency officials, including that of the architect of its controversial drone-warfare program. He said it was important to do so for the sake of providing public accountability. Timing was key: The decision came just after President Obama took responsibility for the deaths of two Western captives in an American drone strike in Pakistan.

Current and former government officials pushed back hard. Robert Litt, the general counsel to the director of national intelligence, saidpublicly that The Times had “disgraced itself” by publishing the names, and had put those officers’ and their families’ lives at risk.

And 20 former C.I.A. officials signed a letter to The Times criticizing the decision. They rejected Mr. Baquet’s accountability argument:

Officials who work on covert operations do not escape accountability. Their actions are carefully reviewed by the C.I.A.’s general counsel, the inspector general, White House officials, congressional overseers and Justice Department attorneys. Indeed, some of the operations referred to by The Times have been discussed publicly by the president and are some of the most carefully overseen in our government.

Here’s a long interview with Mr. Baquet done by Jack Goldsmith, who now has written several times on this subject. Mr. Goldsmith served in various roles in the George W. Bush administration, and essentially approaches the topic from the right. The interview is well worth the time of anyone interested in the details of how Mr. Baquet reached his decision and how he justifies it.

Mr. Goldsmith, in a later post to his Lawfare blog, said he found the C.I.A. officials’ arguments against The Times unpersuasive. He concluded: . . .

Continue reading.

Written by LeisureGuy

24 May 2015 at 6:06 am

DOJ Calls Out UBS Rap Sheet; Ignores Citigroup’s Rap Sheet (because Citigroup is a US company)

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Pam Martens and Russ Martens give another example of why it’s so very difficult to respect the Obama Administration’s Department of Justice:

When the U.S. Department of Justice held its press conference on Wednesday to announce that five mega banks were each pleading guilty to a felony charge, paying big fines and being put on probation for three years, Assistant U.S. Attorney General Leslie Caldwell specifically took a battering ram to the reputation of Swiss bank, UBS.

Four banks — Citicorp, a unit of Citigroup, JPMorgan Chase & Co., Royal Bank of Scotland and Barclays — pleaded guilty to an antitrust charge of conspiring to rig foreign currency trading while UBS pleaded guilty to one count of wire fraud for its earlier involvement in rigging the interest rate benchmark, Libor.

In explaining why the Justice Department was ripping up the non-prosecution agreement it had negotiated with UBS in December 2012 over its involvement in the Libor fraud and now charging it with a felony, Caldwell delivered a scathing attack on UBS, stating:

Perhaps most significantly, UBS has a ‘rap sheet’ that cannot be ignored. Within the past six years, the department has resolved criminal investigations of UBS three times, resulting in non-prosecution or deferred prosecution agreements. UBS also has entered into civil and regulatory settlements on multiple occasions within the past few years.  Enough is enough.

Enough is apparently not enough, however, when it comes to serial banking tyrants based in the U.S. Not only does Citigroup have a monster rap sheet that keeps growing, but it’s the bank that contributed significantly to the U.S. financial collapse in 2008 and received the largest taxpayer bailout in U.S. history: $45 billion in equity infusions, over $300 billion in asset guarantees, and over $2 trillion in low-cost loans from the Federal Reserve.

In last month’s Harper’s Magazine, Andrew Cockburn took an in-depth look at Citigroup’s history of hubris, including the crime supermarket that Sandy Weill created with the merger of Travelers Group and Citicorp to form Citigroup in 1998. Cockburn writes:

Under Weill, however, the merged firm set new records for reckless gambles and fraud. It was Citigroup that helped to cook Enron’s books, disguising $4 billion worth of loans on the balance sheet as operating cash flow. Citigroup’s executives apparently understood what they were doing, but carried on regardless—the payoff being the $200 million in fees earned from the energy-trading firm before it collapsed amid bankruptcy and criminal charges. (As it turned out, crime did not pay, at least not for Citigroup’s stockholders, since the firm ended up shelling out $100 million in civil penalties to the SEC and $3.7 billion to settle claims by Enron investors.)

Equally favored as a client was the WorldCom communications conglomerate. Jack Grubman, Citi’s star telecom analyst, served as an adviser to Bernard Ebbers, WorldCom’s CEO, while relentlessly touting the company’s stock to unwitting investors. For his services, Grubman received more than $67.5 million between 1999 and 2002—hardly excessive compensation, considering that he had helped Citigroup to generate almost $1.2 billion in fees from WorldCom and other communications firms. Subsequent events followed their normal course.  WorldCom declared bankruptcy, Ebbers went to jail, Grubman paid a $15 million fine and was banned from the securities industry for life, and Citigroup settled a  WorldCom investors’ suit for $2.6 billion and paid a $300 million fine to the SEC. None of Citigroup’s senior executives suffered any penalty.

There is an exponentially growing body of evidence that Citigroup’s cozy ties to Washington and cozy deals with its regulators are enabling its continued plundering of Main Street. In 2011, nineteen professors and scholars in securities law filed a joint amicus brief with the Second Circuit Appeals Court explaining why Judge Jed Rakoff was correct to reject a $285 million settlement that the SEC had negotiated with Citigroup. Their law schools included Columbia, George Washington, Villanova, Cornell and others. They told the court:

Continue reading. There’s lots more, which the DoJ tactfully ignores—it’s a US firm, after all, and US firms can do what they please.

Written by LeisureGuy

22 May 2015 at 2:16 pm

Paul Krugman points out the sleazy sales job Obama is doing on TPP

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Paul Krugman writes in the NY Times:

One of the Obama administration’s underrated virtues is its intellectual honesty. Yes, Republicans see deception and sinister ulterior motives everywhere, but they’re just projecting. The truth is that, in the policy areas I follow, this White House has been remarkably clear and straightforward about what it’s doing and why.

Every area, that is, except one: international trade and investment.

I don’t know why the president has chosen to make the proposed Trans-Pacific Partnership such a policy priority. Still, there is an argument to be made for such a deal, and some reasonable, well-intentioned people are supporting the initiative.

But other reasonable, well-intentioned people have serious questions about what’s going on. And I would have expected a good-faith effort to answer those questions. Unfortunately, that’s not at all what has been happening. Instead, the selling of the 12-nation Pacific Rim pact has the feel of a snow job. Officials have evaded the main concerns about the content of a potential deal; they’ve belittled and dismissed the critics; and they’ve made blithe assurances that turn out not to be true.

The administration’s main analytical defense of the trade deal came earlier this month, in a report from the Council of Economic Advisers. Strangely, however, the report didn’t actually analyze the Pacific trade pact. Instead, it was a paean to the virtues of free trade, which was irrelevant to the question at hand.

First of all, whatever you may say about the benefits of free trade, most of those benefits have already been realized. A series of past trade agreements, going back almost 70 years, has brought tariffs and other barriers to trade very low to the point where any effect they may have on U.S. trade is swamped by other factors, like changes in currency values.

In any case, the Pacific trade deal isn’t really about trade. Some already low tariffs would come down, but the main thrust of the proposed deal involves strengthening intellectual property rights — things like drug patents and movie copyrights — and changing the way companies and countries settle disputes. And it’s by no means clear that either of those changes is good for America.

On intellectual property: patents and copyrights are how we reward innovation. But do we need to increase those rewards at consumers’ expense? Big Pharma and Hollywood think so, but you can also see why, for example, Doctors Without Borders is worried that the deal would make medicines unaffordable in developing countries. That’s a serious concern, and it’s one that the pact’s supporters haven’t addressed in any satisfying way.

On dispute settlement: a leaked draft chapter shows that the deal would create a system under which multinational corporations could sue governments over alleged violations of the agreement, and have the cases judged by partially privatized tribunals. Critics like Senator Elizabeth Warren warn that this could compromise the independence of U.S. domestic policy — that these tribunals could, for example, be used to attack and undermine financial reform.

Not so, says the Obama administration, with the president declaring that Senator Warren is “absolutely wrong.” But she isn’t. The Pacific trade pact could force the United States to change policies or face big fines, and financial regulation is one policy that might be in the line of fire. As if to illustrate the point, Canada’s finance minister recently declared that the Volcker Rule, a key provision of the 2010 U.S. financial reform, violates the existing North American Free Trade Agreement. Even if he can’t make that claim stick, his remarks demonstrate that there’s nothing foolish about worrying that trade and investment pacts can threaten bank regulation.

As I see it, the big problem here is one of trust.

International economic agreements are, inevitably, complex, and you don’t want to find out at the last minute — just before an up-or-down, all-or-nothing vote — that a lot of bad stuff has been incorporated into the text. So you want reassurance that the people negotiating the deal are listening to valid concerns, that they are serving the national interest rather than the interests of well-connected corporations.

Instead of addressing real concerns, however, the Obama administration has been dismissive, trying to portray skeptics as uninformed hacks who don’t understand the virtues of trade. But they’re not: . . .

Continue reading.

It’s pretty rich for Obama to say “Trust me” after all the times he’s betrayed that trust.

Written by LeisureGuy

22 May 2015 at 7:58 am

Interesting quiz: Can you tell the difference between the FISA court and the court in Franz Kafka’s The Trial

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Alvaro Bedoya and Ben Sobel write in the Washington Post:

When Edward Snowden first went public, he did it by leaking a 4-page order from a secret court called the Foreign Intelligence Surveillance Court, or FISA court. Founded in 1978 after the Watergate scandal and investigations by the Church Committee, the FISA court was supposed to be a bulwark against secret government surveillance. In 2006, it authorized the NSA call records program – the single largest domestic surveillance program in American history.

“The court” in Franz Kafka’s novel The Trial is a shadowy tribunal that tries (and executes) Josef K., the story’s protagonist, without informing him of the crime he’s charged with, the witnesses against him, or how he can defend himself. (Worth noting: The FISA court doesn’t “try” anyone. Also, it doesn’t kill people.)

Congress is debating a bill that would make the FISA court more transparent. In the meantime, can you tell the difference between the FISA court and Kafka’s court?

Section I. Every court has rules and procedures. Do the following describe proceedings in the FISA court, Kafka’s court, or both? . . .

Continue reading to take the quiz.

Written by LeisureGuy

21 May 2015 at 3:21 pm

In the same week, US and UK hide their war crimes by using “national security”

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Glenn Greenwald reports in The Intercept:

Colonel Ian Henderson was a British official dubbed “the Butcher of Bahrain” because of atrocities he repeatedly committed during the 30 years he served as chief security official of that Middle Eastern country. His reign of terror began in 1966 when Bahrain was a British “protectorate” and continued when the post-“independence” Bahraini King retained him in the same position. In 1996, The Independent described him as “the most feared of all secret policemen” in Bahrain, and cited “consistent and compelling evidence that severe beatings and even sexual assaults have been carried out against prisoners under Henderson’s responsibility for well over a decade.”

A 2002 Guardian article reported that “during this time his men allegedly detained and tortured thousands of anti-government activists”; his official acts “included the ransacking of villages, sadistic sexual abuse and using power drills to maim prisoners”; and “on many occasions they are said to have detained children without informing their parents, only to return them months later in body bags.” Needless to say, Col. Henderson was never punished in any way: “although Scotland Yard launched an inquiry into the allegations in 2000, the investigation was dropped the following year.” He was showered with high honors from the U.K.-supported tyrants who ran Bahrain.

Prior to the massacres and rapes over which he presided in Bahrain, Henderson played a leading role in brutally suppressing the Mau Mau insurgency in another British colony, Kenya. In the wake of his Kenya atrocities, he twice won the George Medal, “the 2nd highest, to the George Cross, gallantry medal that a civilian can win.” His brutality against Kenyan insurgents fighting for independence is what led the U.K. government to put him in charge of internal security in Bahrain.

For years, human rights groups have fought to obtain old documents, particularly a 37-year-old diplomatic cable, relating to British responsibility for Henderson’s brutality in Bahrain. Ordinarily, documents more than 30 years old are disclosable, but the British government has fought every step of the way to conceal this cable.

But now, a governmental tribunal ruled largely in favor of the government and held that most of the diplomatic cable shall remain suppressed. The tribunal’s ruling was at least partially based on “secret evidence for the Foreign and Commonwealth Office (FCO) from a senior diplomat, Edward Oakden, who argued that Britain’s defence interests in Bahrain were of paramount importance”; specifically, “Mr Oakden implied that the release of such information could jeopardise Britain’s new military base in the country.”

The U.K. government loves to demonize others for supporting tyrants even as it snuggles up to virtually every despot in that region. Her Majesty’s Government has a particularly close relationship with Bahrain, where it is constructing a new naval base. The Kingdom is already home to the United States’ Fifth Fleet.

The tribunal’s rationale is that “full disclosure of the document would have ‘an adverse effect on relations’ with Bahrain, where the U.K. is keen to build further economic and defence ties.” In other words, disclosing these facts would make the British and/or the Bahrainis look bad, cause them embarrassment, and could make their close friendship more difficult to sustain. Therefore, the British and Bahraini populations must be denied access to the evidence of what their governments did.

This is the core mindset now prevalent in both the U.S. and U.K. for hiding their crimes from their own populations and then rest of the world:disclosure of what we did will embarrass and shame us, cause anger toward us, and thus harm our “national security.” As these governments endlessly highlight the bad acts of those who are adverse to them, they vigorously hide their own, thus propagandizing their publics into believing that only They — the Other Tribe Over There — commit such acts.

This is exactly the same mentality driving the Obama administration’s years-long effort to suppress photographs showing torture of detainees by the U.S. In 2009, Obama said he would comply with a court ruling that ordered those torture photos disclosed, but weeks after his announcement, reversed himself. Adopting the argument made by a group run by Bill Kristol and Liz Cheney against disclosure of the photos, Obama insisted that to release the photos “would be to further inflame anti-American opinion and to put our troops in danger.” Obama went further and announced his support for a bill sponsored by Lindsey Graham and Joe Lieberman to amend the Freedom of Information Act — a legislative accomplishment which Rep. Louise Slaughter told me at the time had long been “sacred” to Democrats — for no reason other than to exempt those torture photos from disclosure.

In March of this year, a U.S. judge who had long sided with the Obama DOJ in this matter reversed course. In a lawsuit brought in 2004 by the ACLU, the judge ordered the release of thousands of photos showing detainee abuse in Afghanistan and Iraq, including at Abu Ghraib. He ruled that the Obama DOJ could no longer show any national security harm that would justify ongoing suppression.

Rather than accepting the ruling and releasing the photos after hiding them for more than a decade, the U.S. Justice Department last week filed an emergency request for a stay of that ruling with the appeals court. The argument from The Most Transparent Administration Ever™: . . .

Continue reading.

Written by LeisureGuy

21 May 2015 at 3:15 pm

The Section 215 wrecking ball

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An interesting column in the New Yorker by Amy Davidson:

In the past week, two fights over domestic spying—one political and one legal—have converged in Congress and the courts. They both began in June, 2013, when the Guardian, as part of a series based on files leaked to it by Edward Snowden, published a secret National Security Agency document ordering Verizon Business Services to hand over call records for all its customers. This immediately caught the attention of the American Civil Liberties Union, not least because it was itself a Verizon Business customer. Its affiliate, the New York Civil Liberties Union, had been one, too. This was not so strange—Verizon is one of the few major providers in the country. (Government officials soon acknowledged that the other providers received similar orders.) But it had legal consequences. A number of previous attempts to challenge secret government surveillance practices in court had failed because the plaintiffs lacked what’s called standing: they couldn’t prove that they, in particular, had been affected, and you need to do that to bring a suit. Just six days after the first Snowden story appeared, the A.C.L.U. went to court, Verizon bill in hand, claiming that the law and the Constitution had been violated.

This was not the only response. The dismay about the bulk collection of phone records was broad; many Americans had assumed that this was the sort of thing for which the government needed an individualized warrant, rather than a dragnet. President Barack Obama and other defenders of the program said, though, that the practice was legal under Section 215 of the Patriot Act, which was first passed after September 11, 2001, and which allows the government to collect “tangible things” that are “relevant” to a particular investigation. That rationale seemed dubious. The N.S.A. had relied on the secretly operating Foreign Intelligence Surveillance Act court. Without access to its classified legal interpretations, a citizen, or a congressman, even one reading the bill carefully, would still not have known that the assembly of the phone records of just about every American into a searchable database was an activity the law envisioned. (Indeed, James Clapper, the director of National Intelligence, had denied that such a thing was taking place in testimony before Congress. He is a defendant in the A.C.L.U. case.) But the N.S.A.’s story was that it was acting in perfect accord with Section 215, and it has largely been allowed to stick to it. Bulk collection, with some tweaks, has continued.

Section 215, however, expires on June 1st, two weeks from now. Congress has, basically, three options. One is to let Section 215 die, and, presumably, the bulk-collection program with it. (But that might allow the N.S.A. simply to tear up the previous order and look for another route to the same end.) A second option is to bring the program above board: pass a new law that would allow the N.S.A. more controlled access to what it said was valuable information. This is the U.S.A. Freedom Act, and it has both Republican and Democratic supporters, including Patrick Leahy, of Vermont, who has a strong record on civil liberties. The White House has said that the President will sign it. The House passed a version on Wednesday, by a vote of 338-88, and sent it to the Senate. But it may run into trouble there, because of a third option: to extend Section 215 and, implicitly, accept the N.S.A.’s interpretation and let it keep collecting everyone’s records with what amounts to impunity. This is the option favored by many Senate Republicans, foremost among them the Majority Leader, Mitch McConnell, who refers to it as a “clean” renewal of Section 215.

Then, last Thursday, the Second Circuit Appeals Court found that the A.C.L.U. was, at least partly, correct: Section 215 did not authorize bulk collection. The program was never legal. Once the court reached that finding, it didn’t have to address the question of whether the practice was unconstitutional, but it did suggest that it was a pretty good one to ask. That all made McConnell’s clean renewal look pretty dirty.

“This is a very delicate issue,” John Boehner, the Speaker of the House, said earlier this week of the House version of the Leahy bill. “I know members would like to offer some amendments, but this is not a place for people to bring out the wrecking ball.” The members he was referring to were libertarians in his own party, who, in this case, want more privacy protections than the bill provides. They are not the only potential wrecking-ball rig operators, though: there is also the McConnell faction, which seems unmoved by the Second Circuit decision and continues to act as though it’s enough to renew Section 215. (As Benjamin Wittes points out, ignoring the court, at the very least, “involves serious litigation risk.”) McConnell may insist on bringing a five-year renewal of the Patriot Act to the floor, as is, which could set off more inter- and intra-party fights. Boehner said, “I’m not going to speculate on what the Senate may or may not do. But all I know is that these programs expire at the end of this month.”

So, while this is a fight about the future of the bulk-collection program, there are bigger puzzles on the table, which have to do with the intersection of law and politics. One is about the direction of both parties, which are not internally unified on surveillance questions. Another is where the public should look for redress, in the face of an uproar like the one that Snowden’s documents brought about. Can Congress handle it, or is this where the courts must come in? Perhaps the largest question is how much laws, and their language, matter. The most outrageous aspect of the N.S.A. revelations was that the agency believed that it could have its own hidden reading of laws like Section 215, divorced from the ordinary meaning of the words that Congress debated and passed. 

The crucial finding of the Second Circuit decision—and why it matters, going forward, even if Section 215 expires—is that the meaning of words does matter. Two central ones in this case are “relevance” and “investigation.” The judges found that the government’s argument, in response to the A.C.L.U., amounted to saying that everyone’s phone records were relevant because, someday, “utilizing its ability to sift through the trove of irrelevant data,” the government might find something helpful. The judges added, “The interpretation urged by the government would require a drastic expansion of the term ‘relevance.’ ”

Similarly, the court found that, when the government asked to connect these searches and seizures to a particular investigation, it had a habit of just invoking names of terrorist groups, which has all the specificity of saying that the world is a dangerous place: “Put another way, the government effectively argues that there is only one enormous ‘anti-terrorism’ investigation, and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort.”

Although the court found that the law was being broken, it held off on ruling on the A.C.L.U.’s request for a preliminary injunction that would end the program immediately. That was because, the judges said, of the June 1st deadline. Something would have to change then. The restrictions introduced in the U.S.A. Freedom Act—having companies like Verizon hold onto the records, instead of the government; making sure that searches were more specific—address the same problems that the court recognized. On the other hand, the court noted, “If Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously.” The court’s decision explicitly left open the possibility that, in either of those scenarios, whatever replaced Section 215 would still face a tough constitutional challenge. (And it indicated that it would be better if any higher court dealt with the law in place after June 1st.) Until then, the judges, it seemed, wanted to give Congress room to do the right thing and end an illegal practice.

Congress, of course, has been known to do nothing. . .

Continue reading.

Written by LeisureGuy

21 May 2015 at 3:02 pm


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