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In Secret Court Hearing, Lawyer Objected to FBI Sifting Through NSA Data Like It Was Google

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Secret courts making secret decisions regarding secret laws is in my mind strongly associated with totalitarian regimes, which do not want the public to know what the government is up to. But that’s what we have in the FISA court. Alex Emmons reports in The Intercept:

In her first appearance representing the American public before the top-secret Foreign Intelligence Surveillance Court in 2015, Amy Jeffress argued that the FBI is violating the Fourth Amendment by giving agents “virtually unrestricted” access to data from one of the NSA’s largest surveillance programs, which includes an untold amount of communications involving innocent Americans.

The NSA harvests data from major Internet companies like Facebook, Google and Apple without a warrant, because it is ostensibly “targeting” only foreigners. But the surveillance program sweeps up a large number of Americans’ communications as well. Then vast amounts of data from the program, including the Americans’ communications, are entered into a master database that a Justice Department lawyer at the 2015 hearing described as the “FBI’s ‘Google’ of its lawfully acquired information.”

The FBI routinely searches this database during ordinary criminal investigations — which gives them access to Americans’ communications without a warrant.

Jeffress, a former federal prosecutor now serving as an independent “friend of the court,” expressed frustration over the casualness with which the FBI is allowed to look through the data. “There need be no connection to foreign intelligence or national security, and that is the purpose of the collection,” she told Thomas Hogan, then the chief judge of the court. “So they’re overstepping, really, the purpose for which the information is collected.”

The ACLU obtained the hearing transcript and other legal documents related to the secret court proceedings under the Freedom of Information Act, and released them to the public on Friday.

The FISA Court has been widely criticized for its secrecy, its extreme tendency to defer to the government, and the fact that until recently it only heard the government’s side of the case. In 2015, Congress passed a law establishing the position of “amicus curiae” to represent the interests of the public and civil liberties, and Jeffress is one of five amici now serving.

Jeffress, who is now a partner at the law firm Arnold and Porter, declined an interview request, citing the sensitivity of the FISA Court’s proceedings.

The NSA program in question, called PRISM, operates under Section 702 of the Foreign Intelligence Surveillance Act, which is scheduled to sunset in December unless it is reauthorized by Congress. What critics call the FBI’s “backdoor search loophole” is likely to be a major topic of debate in the coming months. Section 702 also authorizes a program called “Upstream,” which grabs massive amounts of data off major Internet backbones inside the U.S. without a warrant — again, because it is ostensibly “targeting” foreign communications.

The FBI’s backdoor searches are so controversial that the Republican-controlled House of Representatives passed measures in 2014 and 2015 requiring agents to get a warrant before conducting them, although the Senate refused to take up either proposal.

“Section 702 backdoor searches of Americans’ private communications are plainly unconstitutional, and the FBI’s warrantless searches are especially troubling,” said Ashley Gorski, a staff attorney with the ACLU.

The CIA and even the NSA itself have imposed a requirement that each query they run on 702 data involving a U.S. person be supported by a statement of facts that explains why the information being sought is relevant to foreign intelligence – as the independent Privacy and Civil Liberties Oversight Board recommended in 2014.

But when Hogan asked if the FBI were willing to do the same thing, the lawyer representing the Department of Justice at the hearing – whose name the government redacted in the transcript – brushed him off.

The lawyer said that searches of the FBI’s “lawfully acquired data” are so common that requiring agents to document them would be impractical, and even dangerous.

“If we require our agents to write a full justification every time — think about if you wrote a full justification every time you used Google. Among other things, you would use Google a lot less,” the Justice Department attorney said. “We want the FBI to look and connect the dots in its lawfully acquired information.” . . .

Continue reading.

Written by LeisureGuy

22 April 2017 at 10:25 am

How to respond to racist remarks: Talk about the remark, not the person making it

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This is from 9 years ago, but was featured this morning in a post by Tim Carmody at Kottke.org, who has more to say about it (and more good (that is, well worth watching) clips by Jay Smooth) at the link. Still good advice, still worth watching:

And, speaking of racism, the conservatives who vociferously complained about Obama’s playing golf from time to time are silent as President Trump plays golf almost every weekend. Apparently, the complaints were not about golf per se, but about a black person playing golf. Shawn King pointed that out in his column “Conservatives don’t hate a golfing President, but they hated an uppity Negro golfing President“:

No President in American history has ever golfed more per week than Donald Trump. In his first 12 weeks in office Trump took a staggering 18 golf course trips. That’s unheard of. In his first 12 weeks in office, President Obama didn’t visit a single golf course. By the end of this year, it’s likely that Trump will have golfed more than President Obama has in his entire presidency.

And that’s strange. It’s really strange. Because Donald Trump and other conservative pundits seemed to be deeply bothered by the times President Obama went out and golfed. It appeared to genuinely offend them. They obsessed over it.

Throughout the campaign, Trump frequently riffed on how much Obama golfed and pledged, “I’m going to be working for you. I’m not going to have time to go play golf.” The crowd ate it up.

Throughout the Obama administration, any time President Obama golfed, some famous conservative pundit chimed in. It was a reliable punchline that consistently got a rise out of their base.

In 2013 Sean Hannity tweeted, “Glad our arrogant Pres. is enjoying his taxpayer funded golf outing after announcing the US should take military action against Syria.”

Just a few months earlier, Newt Gingrich tweeted (his misspellings not mine), “Trump and president obsma both golf but trump doesn’t charge the taxpayers $920,000 for a golf weekend in florida.”

Neither of those tweets have aged well. Now it is Trump enjoying his taxpayer-funded golf outings after announcing military actions all over the world, including Syria. Now it’s Trump charging the taxpayers not $920,000 per golf outing in Florida, but reportedly much more.

Suddenly, the costs of golfing don’t seem to offend Trump or Newt or Hannity anymore. And I sincerely, genuinely don’t think the problem is political. It’s racial.

More than ever, it’s clear that conservatives never really had a problem with a golfing President, what they hated seeing was a black golfing President. I also think this was the subconscious message that Trump was pulling on throughout the campaign trail to his almost exclusively white audiences.

The racist caricature of the “uppity negro” has deep roots in this country. Uppity negroes have irritated white folk for over a hundred years. In its most simple form, the uppity negro is a black man or woman who enjoys anything other than working from sunup to sundown. Particularly, an uppity negro is a black man or woman who enjoys creature comforts in life that some whites may not yet be able to afford to enjoy — say a musical, a play, fine dining, or, you guessed it, a round of golf.

It’s why referencing Obama golfing got such a rise out of white, working-class crowds. It was a coded way to say, “How dare that uppity negro golf and enjoy leisure time while we work hard to make this country what it truly is?” Of course, . . .

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Written by LeisureGuy

20 April 2017 at 9:58 am

An interesting difference between liberals and conservatives: Liberals are more consistent

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Perhaps because they arrive at their positions through evidence and thought rather than through simple tribal affiliation.

Written by LeisureGuy

12 April 2017 at 4:12 pm

The IRS took millions from innocent people because of how they managed their bank accounts

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Government agencies (police departments, DEA, et al.) love civil asset forfeiture because it gives them a license to rob people with impunity, and they take full advantage of it. Sometimes a civil lawsuit will restrain them, but they get away with it often enough that they defend the privilege fiercely. And the IRS is on the take, as Christopher Ingraham reports today in the Washington Post:

The Internal Revenue Service has seized millions of dollars in cash from individuals and businesses who obtained the money legally, according to a new Treasury Inspector General’s report.

The report covers IRS cash seizures against businesses and individuals suspected of deliberately trying to avoid federal reporting requirements for large bank deposits.

In order to combat criminal activity, individuals and businesses are required to report all bank deposits greater than $10,000 to federal authorities. Intentionally splitting up large sums of cash into sub-$10,000 amounts to avoid that reporting requirement is known as “structuring,” and is illegal under the federal Bank Secrecy Act.

But many business owners engaged in perfectly legal activities may be unaware of the law. Others are covered by insurance policies that don’t cover cash losses greater than $10,000. Still others simply want to avoid extra paperwork, and keep their deposits less than $10,000 on the advice of bank employees or colleagues.

While structuring is technically a crime, it’s something of a secondary one. The reporting requirements were enacted in order to detect serious criminal activity, such as drug dealing and terrorism. They “were not put in place just so that the Government could enforce the reporting requirements,” as the Inspector General’s report puts it.

But according to the report, that’s exactly what happened at the IRS in recent years. The IRS pursued hundreds of cases from 2012 to 2015 on suspicion of structuring, but with no indication that it was related to any criminal activity. Simply depositing cash in sums of less than $10,000 was all that it took to arouse agents’ suspicion, and the eventual seizure and forfeiture of millions of dollars in cash from people not otherwise suspected of criminal activity.

The Inspector General took a random sample of 278 IRS forfeiture actions in cases where structuring was the primary basis for seizure. The report found that in 91 percent of those cases, the individuals and business had obtained their money legally.

“Most people impacted by the program did not appear to be criminal enterprises engaged in other alleged illegal activity,” according to the Inspector General’s press release. “Rather, they were legal businesses such as jewelry stores, restaurant owners, gas station owners, scrap metal dealers, and others.”

More troubling, the report found that the pattern of seizures — targeting businesses that obtained their money legally — was deliberate.

“One of the reasons why legal source cases were pursued was that the Department of Justice had encouraged task forces to engage in ‘quick hits,’ where property was more quickly seized and more quickly resolved through negotiation, rather than pursuing cases with other criminal activity (such as drug trafficking and money laundering), which are more time-consuming,” according to the press release.

In most cases, the report found, agents followed a protocol of “seize first, ask questions later.” Agents only questioned individuals and business owners after they had already seized their money.

In many cases, the property owners provided plausible explanations for their pattern of deposits. But these explanations appeared to have been disregarded or ignored.

“In most instances, we found no evidence that [agents] attempted to verify the property owners’ explanations,” according to the report.

It is unclear whether structuring forfeiture cases make up a small or large percentage of all IRS forfeitures, because the IRS does not publish that information and denied FOIA requests to make it public.

“Today’s report confirms that the IRS used civil forfeiture to seize millions of dollars from innocent business owners,” said attorney Robert Everett Johnson of the Institute for Justice, a legal firm fighting for forfeiture reform, in a statement. “The IRS’s own internal watchdog found that the IRS had a practice of seizing entire bank accounts based on nothing more than a pattern of under-$10,000 cash deposits.”

The Treasury report comes on the heels of a separate Department of Justice report finding that the DEA has seized billions of cash from individuals never charged with criminal wrongdoing. . .

Continue reading.

Written by LeisureGuy

5 April 2017 at 10:49 am

The “Grand Bargain” at Risk: What’s at Stake When the President Alleges Politics in Intelligence

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Jack Goldsmith and Benjamin Wittes write in Lawfare:

The U.S. intelligence community is on the verge of a crisis of confidence and legitimacy it has not experienced since the 1970s. Back then, the crisis was one of the community’s own behavior. In the 1950s, 1960s, and 1970s the intelligence community used its secret powers of surveillance and other forms of government coercion—often but not always at the behest of its political superiors—to spy on and engage in operations against Americans for political ends. At that time, politicians really did use executive branch intelligence tools to seek to monitor and harm political enemies, and exposure of that reality nearly destroyed the intelligence community. The problem was Hoover’s illegal wiretaps, bugs, and break-ins, and his attempts to annihilate Martin Luther King and others; it was NSA’s and CIA’s domestic espionage and propaganda operations; it was Richard Nixon’s many dirty tricks.

The community survived because it entered a “grand bargain” with Congress and the American people in the 1970s. And it is that very grand bargain that today’s crisis now threatens.

Today’s crisis is sparked by allegations, both by President Trump and by some House Republicans, of political misuse of the intelligence community by the Obama administration. Whether the allegations are entirely false or turn out to have elements of truth, they put the intelligence community in the cross-hairs, since some of the institutions that are supposed to be key legitimators are now functioning as delegitimators. After all, entirely appropriate investigations of counterintelligence can easily look like inappropriate political meddling, and if the President the House Intelligence Committee chairman are not merely not defending the intelligence community but are actively raising questions about its integrity, the bargain itself risks unraveling.

The central elements of the grand bargain were these: the president and his intelligence bureaucracy were allowed to maintain robust surveillance and espionage capacities, including domestically. But in exchange, Congress subjected them significant legal restrictions on how they collected, analyzed, and disseminated intelligence information; a bevy of lawyers throughout the intelligence community and, over time, in the Justice Department monitored and enforced those restrictions; domestic surveillance required a court order, including a court order from a new court, the Foreign Intelligence Surveillance Court, for foreign intelligence investigations; and two new committees, the Senate and House Intelligence committees, were to be kept “fully and currently informed” of all significant intelligence activities, and would have robust oversight authorities. The idea was that the use of these powers would be documented and watched by institutions that could be trusted to keep secrets but would act as credible surrogates for public oversight mechanisms.

These reforms proved vital. Intelligence collection, including in the homeland, is essential to our security. But it is also among the most dangerous of government powers because it is so consequential, so secret, and so easy and tempting to abuse. Its legitimacy is inherently fraught. So it is crucial not merely that the entire process be above board politically but that it be seen to be above board. If enough people believe that the intelligence community is a political instrument of those in power to be used against opponents, it actually doesn’t matter if it’s untrue. So the key function of the grand bargain was not merely keeping the intelligence community actually within the law but also validating it to a public conditioned by Watergate and COINTELPRO to believe the worst that the intelligence community was functioning within the law.

This system did not always work perfectly, and it has every so often required strengthening. Sometimes, as in Iran-Contra, it was because of real abuse. Sometimes, it was because of perceived abuses. Sometimes, it was the result of changed technology. Sometimes, it was the result of changed threat perception.

But on the whole, the system of overlapping internal and external checks, combined with massive changes in intelligence community culture, worked well. It gave the intelligence community legitimate operating space in the midst of a political culture obsessed with movies about intelligence community plots and rogue operations. Even as Hollywood made Minority Report and Enemy of the State, the intelligence community could carry on its business. That was a huge accomplishment.

Another achievement of the grand bargain was the actual elimination of the great evil of governmental use of its vast intelligence apparatus for politically-motivated surveillance. And while it did not eliminate the perception in the mass culture that this was going on, it did give the community a powerful response to suggestions of politically motivated misconduct. The response went like this: here are the rules; here are the bodies we report to on our operations; we did not violate the rules; and our many oversight bodies, who in the round are credible actors, were kept fully informed.

This basic system survived even the Snowden revelations. Many people found Snowden’s disclosures of vast intelligence collection shocking. But though Snowden disclosed many technical legal problems with this surveillance, as well as some controversial legal judgments signed off on by the executive oversight apparatus, it also showed that the the problem of politically motivated surveillance simply didn’t exist. None of the thousands of pages of NSA revelations pointed to anything like the venal activities of the 1970s and before.

Yet events of the last year have put the domestic political use of surveillance tools front and center once again. And ironically, today it’s the President of the United States and the Chairman of the House Intelligence Committee who are alleging precisely that which the Snowden revelations did not show. . .

Continue reading. And do read the whole thing. Trump is really doing serious damage to our government, and seriously weakening it. And the whole world sees it, including those who are hostile to our country.

Written by LeisureGuy

4 April 2017 at 6:39 pm

Larry Summers Had the Power to Punish Wall Street. Now He’s Slamming Obama’s Gentle Treatment.

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David Dayen reports in The Intercept:

AS HEAD OF BARACK OBAMA’S National Economic Council during 2009 and 2010 at the height of the foreclosure crisis, Larry Summers broke many promises to help homeowners while simultaneously dismissing Wall Street’s criminality. Now, after the Obama administration has left power and Summers has no ability to influence anything, he finds himself “disturbed” that settlements for mortgage misconduct are full of lies. Those of us who screamed exactly this for years, when Summers might have been able to do something about it, are less than amused.

In Wednesday’s Washington Post, Summers writes about a “large systematic overstatement” of the burden actually felt by banks in various mortgage settlements. Typically with these settlements, the Justice Department announces a headline dollar amount that the media uncritically prints in their headlines. But that number bears no relation to reality.

Indeed, large amounts of the settlements are directed for “consumer relief,” which banks have been from the beginning adept at gaming. Financial writer Yves Smith coined the phrase “bullshit to cash ratio” to describe the relationship between actual hard-dollar fines for banks and these noncash consumer relief measures.

Summers highlights an agreement last April, where Goldman Sachs needed to supply $1.8 billion in consumer relief to homeowners to settle claims that they swindled investors with mortgage-backed securities. But Goldman Sachs didn’t own any mortgages. So it bought distressed mortgages in bulk on the open market, for as low as 50 cents on the dollar. Then it modified the balance to, say, 60 cents on the dollar, satisfying the consumer relief while earning profit.

In other words, Obama’s Justice Department sentenced Goldman Sachs to make money. A more recent Deutsche Bank settlement allowed the bank to invest in hedge funds that do the same purchase-and-modify loan scheme, getting credit for $4.1 billion in consumer relief simply from the investment. Deutsche Bank is even looking to earn credit for consumer relief by indirectly funding new subprime loans, also a moneymaking activity. This is like sentencing a bank robber to open a lemonade stand.

“While there may have been some encouragement to principle (sic) reduction through these settlements,” Summers writes, “neither the cost to banks nor the incremental benefit to consumers is remotely comparable to the consumer relief figures advertised by both the DoJ and the banks.”

Larry Summers should be the last person expressing outrage about any of this. It was his indifference to the suffering of homeowners after the financial crash that led to this fake justice-by-settlement scheme.

The week before Obama took office in 2009, when the incoming White House wanted the second half of the TARP bailout money released, Summers wrote a letter to Congress promising that “the Obama administration will commit substantial resources of $50-100B to a sweeping effort to address the foreclosure crisis.” He added that “we will implement smart, aggressive policies to reduce the number of preventable foreclosures by helping to reduce mortgage payments for economically stressed but responsible homeowners, while also reforming our bankruptcy laws.”

None of this happened. The ballyhooed $100 billion investment in mortgage mitigation ended up spending only $21 billion, and worse, was manipulated into a predatory lending program by mortgage servicers who had financial incentives to foreclose. The reform to bankruptcy laws Summers touted in his letter, which would have allowed judges to modify home mortgages, was something he actively opposed after Obama’s inauguration. Rep. Zoe Lofgren, D-Calif., publicly alleged that Summers “was not supportive of this,” and that he expressed doubts in private meetings.

Summers tries to separate himself from the Justice Department’s lies by saying, . . .

Continue reading.

It seems that Larry Summers is quite an unlikable fellow.

Written by LeisureGuy

30 March 2017 at 7:50 pm

Preet Bharara: New York Times Promotes a False Narrative

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I had read that Preet Bharara, though strong against public corruption, was curiously gentle to, and incurious about, Wall Street. Pam Martens and Russ Martens report in Wall Street on Parade:

The narrative of Preet Bharara as a crusading crime fighter has gotten a big boost from the Editorial Board of the New York Times in a glowing editorial in today’s print edition. Bharara was, until this past weekend, the U.S. Attorney for the Southern District of New York, Wall Street’s stomping ground. Bharara Tweeted on Saturday that he had been “fired” by the Trump administration.

The Times’ editorial headline in its digital edition has to be bringing howls this morning from Wall Street veterans and corporate crime watchers. The Times is asking its readers to believe that Bharara was a “Prosecutor Who Knew How to Drain a Swamp.” That’s fake news at its finest. Despite Jamie Dimon, CEO of JPMorgan Chase, Lloyd Blankfein, CEO of Goldman Sachs, and Michael Corbat, CEO of Citigroup, presiding over an unprecedented series of frauds upon the investing public at their banks, these men remain firmly entrenched as overpaid titans in the impenetrable toxic muck of the Wall Street Swamp.

We’ll get back shortly to Bharara’s tenure in the financial crime capitol of the world, but first some necessary background on the New York Times itself.

The Times has a new advertising slogan. It goes like this:Truth. It’s hard to find. But easier with 1000+ journalists looking. Subscribe to The Times.” Unfortunately, when it comes to New York’s biggest and richest hometown industry known as Wall Street, those 1,000 journalists regularly have dull pencils and fogged lenses. (See related articles below.) Even worse, the Editorial Board at the Times has repeatedly served as a propagandist for the serial Wall Street ruses to fleece the public.

It was the Editorial Board of the Times that played the role of Head Majorette when Sandy Weill needed support for his self-serving plan to repeal the Glass-Steagall Act, allowing Wall Street investments banks to merge with commercial banks holding federally-insured deposits in order to make wild gambles for the house while putting taxpayers on the hook for the losses. John Reed, Weill’s partner in the plan, explained to Bill Moyers’in 2012 the real motivation behind the scheme: “Sandy Weill. I mean, his whole life was to accumulate money. And he said, ‘John, we could be so rich.’ Being rich never crossed my mind as an objective value. I almost was embarrassed that somebody would say out loud. It might be happening but you wouldn’t want to say it.”

The New York Times Editorial Board bought into Weill’s outlandish narrative, writing on April 8, 1998: . . .

Continue reading.

Written by LeisureGuy

14 March 2017 at 11:11 am

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