Obama’s ‘drone memo’ is finally public. Now show us the library of secret law

Jameel Jaffer writes: A federal appellate court’s publication on Monday of the so-called “drone memo” finally allows the American public to evaluate the legal theories that were the basis for one of the Obama administration’s most controversial acts – the extrajudicial killing of an American citizen.

Authored three years ago by the Justice Department’s Office of Legal Counsel (OLC), the 41-page memo contends that the president has broad power to carry out the targeted killing of terrorism suspects, even in geographic areas far removed from conventional battlefields.

The publication of the memo is a victory for transparency – the result of hard-fought litigation by the American Civil Liberties Union and the New York Times. (I argued the ACLU’s case before the appellate court.) It is a very rare thing for a federal court in the United States to order the release of information that the government contends is properly classified. In transparency litigation in the national-security sphere, the courts almost invariably defer. That the court declined to defer here suggests that it found the arguments from the Obama administration to be not simply unpersuasive but wholly without foundation.

But despite the release of the drone memo, the American public still does not have the information it needs in order to evaluate the lawfulness and wisdom of its government’s policies. Indeed, to read through the memo is to be reminded of how successful the Obama administration has been at rationing even the most basic information. [Continue reading...]

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Supreme Court rejects appeal from Times reporter over refusal to identify source

The New York Times reports: The Supreme Court on Monday turned down an appeal from James Risen, a reporter for The New York Times facing jail for refusing to identify a confidential source.

The court’s one-line order gave no reasons but effectively sided with the government in a confrontation between what prosecutors said was an imperative to secure evidence in a national security prosecution and what journalists said was an intolerable infringement of press freedom.

The case arose from a subpoena to Mr. Risen seeking information about his source for a chapter of his 2006 book, “State of War.” Prosecutors say they need Mr. Risen’s testimony to prove that the source was Jeffrey Sterling, a former C.I.A. official.

The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ordered Mr. Risen to comply with the subpoena. Mr. Risen has said he will refuse. [Continue reading...]

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Obama administration continues to obstruct release of drone strike memo

The New York Times reports: One week after the Obama administration said it would comply with a federal appeals court ruling ordering it to make public portions of a Justice Department memo that signed off on the targeted killing of a United States citizen, the administration is now asking the court for permission to censor additional passages of the document.

In the interim, the Senate voted narrowly last week to confirm David Barron, the former Justice Department official who was the memo’s principal author, to an appeals court judgeship. At least one Democratic senator who had opposed Mr. Barron over the secrecy surrounding his memo voted for him after the administration said it would release it.

The 41-page memo, dated July 16, 2010, cleared the way for a drone strike in Yemen in September 2011 that killed Anwar al-Awlaki, an American citizen accused by intelligence officials of plotting terrorist attacks. The American Civil Liberties Union and The New York Times are seeking the memo’s public disclosure in lawsuits under the Freedom of Information Act.[Continue reading...]

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U.S. charges five in Chinese army with hacking

The Wall Street Journal reports: The Justice Department indicted five Chinese military officers, alleging they hacked U.S. companies’ computers to steal trade secrets, a major escalation in the fight between the two superpowers over economic espionage.

The indictment, unsealed Monday, marks the first time the U.S. government has publicly accused employees of a foreign power with cybercrimes against American firms. It also marks the most extensive formal allegations by the government of the kind of hacking that American corporations have long complained about, but until now have rarely acknowledged.

Among those named as victims in the document are brand names from America’s industrial heartland, including U.S. Steel Corp., Westinghouse Electric Co. and Alcoa Inc.

U.S. officials said other cases relating to China are being prepared. In addition, alleged hackers in Russia are likely to be charged soon, according to people familiar with the government’s investigations. U.S. agencies have also been investigating incidents with possible ties to Iran and Syria, these people say.

It is unlikely the suspects will ever be brought to trial in the U.S., since there is no extradition treaty with China. Yet in publicly naming the five, and providing details in a 48-page indictment, the Obama administration is ratcheting up the political and diplomatic costs to China and others if they use computers to steal secrets or attack U.S. interests. [Continue reading...]

Reuters adds: China on Tuesday summoned the U.S. ambassador in Beijing and warned it would retaliate if Washington followed through with the charges. It said the affair would damage “mutual trust”.

At the centre of the row is a nondescript tower block in the northern suburbs of China’s financial capital Shanghai, home to Chinese People’s Liberation Army (PLA) Unit 61398.

The 12-storey block houses as many as several thousand staff, according to Mandiant, a U.S. cyber security firm recently acquired by global network security company FireEye Inc . Mandiant identified the location as the source of a large number of espionage operations in a 70-page report last year. [Continue reading...]

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BlackShades malware bust ends in nearly 100 arrests worldwide

CNET reports: Law enforcement officials from 19 countries joined forces over the last two days to takedown nearly 100 alleged hackers. These purported hackers were said to be creating, selling, and using what the FBI calls a “particularly insidious” computer malware known as BlackShades.

Over the course of the operation, officials’ searched 359 houses and confiscated more than 1,100 data storage devices, such as computers, laptops, cell phones, routers, external hard drives, and USB memory sticks. Law enforcement also seized “substantial quantities” of cash, illegal firearms, and drugs, according to the European Union’s law enforcement agency Europol.

BlackShades is a type of malicious software that acts as a Remote Access Tool, or RAT — letting users remotely control a victim’s computer. Once a hacker installs BlackShades onto a victim’s computer, they can see anything on the computer, such as documents, photographs, passwords, banking credentials, and more. They can also deny access to files, record victims’ keystrokes, and activate the computer’s webcam.

One case of BlackShades use documented by Europol involved an 18-year-old man from the Netherlands who allegedly infected roughly 2,000 computers to take photos of women and girls who were using the machines.

Since 2010, BlackShades has been distributed and sold to thousands of people worldwide in more than 100 countries and used to infect more than half a million computers, according the FBI. Certain versions of the malware can be bought for as little as $40. [Continue reading...]

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Israel’s aggressive spying in the U.S. mostly hushed up

Jeff Stein reports: When White House national security advisor Susan Rice’s security detail cleared her Jerusalem hotel suite for bugs and intruders Tuesday night, they might’ve had in mind a surprise visitor to Vice President Al Gore’s room 16 years ago this week: a spy in an air duct.

According to a senior former U.S. intelligence operative, a Secret Service agent who was enjoying a moment of solitude in Gore’s bathroom before the Veep arrived heard a metallic scraping sound. “The Secret Service had secured [Gore’s] room in advance and they all left except for one agent, who decided to take a long, slow time on the pot,” the operative recalled for Newsweek. “So the room was all quiet, he was just meditating on his toes, and he hears a noise in the vent. And he sees the vent clips being moved from the inside. And then he sees a guy starting to exit the vent into the room.”

Did the agent scramble for his gun? No, the former operative said with a chuckle. “He kind of coughed and the guy went back into the vents.”

To some, the incident stands as an apt metaphor for the behind-closed-doors relations between Israel and America, “frenemies” even in the best of times. The brazen air-duct caper “crossed the line” of acceptable behavior between friendly intelligence services – but because it was done by Israel, it was quickly hushed up by U.S. officials.

Despite strident denials this week by Israeli officials, Israel has been caught carrying out aggressive espionage operations against American targets for decades, according to U.S. intelligence officials and congressional sources. And they still do it. They just don’t get arrested very often. [Continue reading...]

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FBI keeps internet flaws secret to defend against hackers

Bloomberg reports: The Obama administration is letting law enforcement keep computer-security flaws secret in order to further U.S. investigations of cyberspies and hackers.

The White House has carved out an exception for the Federal Bureau of Investigation and other agencies to keep information about software vulnerabilities from manufacturers and the public. Until now, most debate has focused on how the National Security Agency stockpiles and uses new-found Internet weaknesses, known as zero-day exploits, for offensive purposes, such as attacking the networks of adversaries.

The law enforcement operations expose a delicate and complicated balancing act when it comes to agencies using serious security flaws in investigations versus disclosing them to protect all Internet users, according to former government officials and privacy advocates. [Continue reading...]

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The living death of solitary confinement

Lisa Guenther writes: I first met Five Omar Mualimm-ak at a forum on solitary confinement in New York City. He wore track shoes with his tailored suit. ‘As long as the Prison Industrial Complex keeps running, so will I,’ he explained. After hearing him speak about the connections between racism, poverty, mass incarceration and police violence, I invited Five to speak at a conference I was organising in Nashville, Tennessee. He arrived, as always, in a suit and track shoes. As we walked across campus to a conference reception, I worked up the courage to ask him how he got his name. He told me: ‘I spent five years in solitary confinement, and when I came out I was a different person.’

In an article for The Guardian last October, Five described his isolation as a process of sensory and existential annihilation:

After only a short time in solitary, I felt all of my senses begin to diminish. There was nothing to see but grey walls. In New York’s so-called special housing units, or SHUs, most cells have solid steel doors, and many do not have windows. You cannot even tape up pictures or photographs; they must be kept in an envelope. To fight the blankness, I counted bricks and measured the walls. I stared obsessively at the bolts on the door to my cell.

There was nothing to hear except empty, echoing voices from other parts of the prison. I was so lonely that I hallucinated words coming out of the wind. They sounded like whispers. Sometimes, I smelled the paint on the wall, but more often, I just smelled myself, revolted by my own scent.

There was no touch. My food was pushed through a slot. Doors were activated by buzzers, even the one that led to a literal cage directly outside of my cell for one hour per day of ‘recreation’.

Even time had no meaning in the SHU. The lights were kept on for 24 hours. I often found myself wondering if an event I was recollecting had happened that morning or days before. I talked to myself. I began to get scared that the guards would come in and kill me and leave me hanging in the cell. Who would know if something happened to me? Just as I was invisible, so was the space I inhabited.

The very essence of life, I came to learn during those seemingly endless days, is human contact, and the affirmation of existence that comes with it. Losing that contact, you lose your sense of identity. You become nothing.

Five’s experience of solitary confinement is extreme, but it’s not atypical. His feeling of disconnection from the world, to the point of losing his capacity to make sense of his own identity and existence, raises philosophical questions about the relation between sense perception, sociality, and a meaningful life. Why does prolonged isolation typically corrode a prisoner’s ability to perceive the world and to sustain a meaningful connection with his own existence? The short answer to this question is that we are social beings who rely on our interactions with other people to make sense of things. But what does it mean to exist socially, and what is the precise connection between our relations with others, our perception of the world, and the affirmation of our own existence?

My response to this question is shaped by the philosophical practice of phenomenology. Phenomenology begins with a description of lived experience and reflects on the structures that make this experience possible and meaningful. The main insight of phenomenology is that consciousness is relational. [Continue reading...]

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Tom Engelhardt: Knowledge is crime

Why kidnapping, torture, assassination, and perjury are no longer crimes in Washington
By Tom Engelhardt

How the mighty have fallen.  Once known as “Obama’s favorite general,” James Cartwright will soon don a prison uniform and, thanks to a plea deal, spend 13 months behind bars.  Involved in setting up the earliest military cyberforce inside U.S. Strategic Command, which he led from 2004 to 2007, Cartwright also played a role in launching the first cyberwar in history — the release of the Stuxnet virus against Iran’s nuclear program.  A Justice Department investigation found that, in 2012, he leaked information on the development of that virus to David Sanger of the New York Times. The result: a front-page piece revealing its existence, and so the American cyber-campaign against Iran, to the American public.  It was considered a serious breach of national security.  On Thursday, the retired four-star general stood in front of a U.S. district judge who told him that his “criminal act” was “a very serious one” and had been “committed by a national security expert who lost his moral compass.” It was a remarkable ending for a man who nearly reached the heights of Pentagon power, was almost appointed chairman of the Joint Chiefs of Staff, and had the president’s ear.

In fact, Gen. James Cartwright has not gone to jail and the above paragraph remains — as yet — a grim Washington fairy tale.  There is indeed a Justice Department investigation open against the president’s “favorite general” (as Washington scribe to the stars Bob Woodward once labeled him) for the possible leaking of information on that virus to the New York Times, but that’s all.  He remains quite active in private life, holding the Harold Brown Chair in Defense Policy Studies at the Center for Strategic and International Studies, as a consultant to ABC News, and on the board of Raytheon, among other things. He has suffered but a single penalty so far: he was stripped of his security clearance.

A different leaker actually agreed to that plea deal for the 13-month jail term.  Nearly three weeks ago, ex-State Department intelligence analyst Stephen E. Kim pled guilty to “an unauthorized disclosure of national defense information.”  He stood before U.S. District Judge Colleen Kollar-Kotelly, who offered those stern words of admonition, and took responsibility for passing classified information on the North Korean nuclear program to Fox News reporter James Rosen in 2009. 

Still, someday Cartwright might prove to be unique in the annals of Obama era jurisprudence — the only Washington figure of any significance in these years to be given a jail sentence for a crime of state.  Whatever happens to him, his ongoing case highlights a singular fact: that there is but one crime for which anyone in America’s national security state can be held accountable in a court of law, and that’s leaking information that might put those in it in a bad light or simply let the American public know something more about what its government is really doing.

If this weren’t Washington 2014, but rather George Orwell’s novel 1984, then the sign emblazoned on the front of the Ministry of Truth — “War is Peace, Freedom is Slavery, Ignorance is Strength” — would have to be amended to add a fourth slogan: Knowledge is Crime.

[Read more...]

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FBI abruptly walks out on Senate briefing after being asked how ‘insider threat’ program avoids whistleblowers

Mike Masnick writes: While we’ve been disappointed that Senator Chuck Grassley appears to have a bit of a double standard with his staunch support for whistleblowers when it comes to Ed Snowden, it is true that he has fought for real whistleblower protections for quite some time. Lately, he’s been quite concerned that the White House’s “Insider Threat Program” (ITP) is really just a cover to crack down on whistleblowers. As we’ve noted, despite early promises from the Obama administration to support and protect whistleblowers, the administration has led the largest crackdown against whistleblowers, and the ITP suggests that the attack on whistleblowers is a calculated response. The program documentation argues that any leak can be seen as “aiding the enemy” and encourages government employees to snitch on each other if they appear too concerned about government wrong-doing. Despite all his high minded talk of supporting whistleblowers, President Obama has used the Espionage Act against whistleblowers twice as many times as all other Presidents combined. Also, he has never — not once — praised someone for blowing the whistle in the federal government.

Given all of that, Senator Grassley expressed some concern about this Insider Threat Program and how it distinguished whistleblowers from actual threats. He asked the FBI for copies of its training manual on the program, which it refused to give him. Instead, it said it could better answer any questions at a hearing. However, as Grassley explains, when questioned about this just 10 minutes into the hearing, the FBI abruptly got up and left: [Continue reading...]

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Defense: FBI wanted marathon suspect as informant

n13-iconThe Associated Press reports: Lawyers for Boston Marathon bombing suspect Dzhokhar Tsarnaev say the FBI asked his older brother and fellow suspect to be an informant on the Chechen and Muslim community.

In court filings Friday, the defense asked a judge to order federal prosecutors to turn over any evidence on brother Tamerlan Tsarnaev, arguing that it could help persuade a jury to spare Dzhokhar Tsarnaev the death penalty if it supports the defense theory Tamerlan was the “main instigator” of the deadly bombing.

Dzhokhar’s lawyers say they want records of all FBI contact with Tamerlan based on information from the Tsarnaev family and others that the FBI “questioned Tamerlan about his Internet searches, and asked him to be an informant, reporting on the Chechen and Muslim community.”

The defense notes that a report issued earlier this week by the House Homeland Security Committee suggests that government agents monitored Tamerlan and his communications during 2011 and possibly 2012. The report said the FBI Joint Terrorism Task Force conducted a threat assessment of Tamerlan, an ethnic Chechen from southern Russia, in response to a 2011 alert from the Russian government that he was becoming radicalized.

Dzhokhar’s lawyers wrote: “Any surveillance, evidence, or interviews showing that Tamerlan’s pursuit of jihad predated Dzhokhar’s would tend to support the theory that Tamerlan was the main instigator of the tragic events that followed.” [Continue reading...]

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Why did the FBI label Ryan Shapiro’s dissertation on animal rights a threat to national security?

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FBI ordered to justify shielding of records sought about alleged sniper plot targeting ‘Occupy’ leaders

n13-iconThe Wall Street Journal reports: A federal judge has ordered the Federal Bureau of Investigation to give her a better explanation for its refusal to turn over information to a student researching an alleged plot to assassinate “Occupy” protest leaders in Houston.

The ruling stems from a lawsuit brought by a Massachusetts Institute of Technology graduate student who is seeking records from the FBI related to a Houston spin-off of the 2011 Occupy Wall Street protests and an alleged sniper plot. The student claims that the heavily redacted responses he got back from the government violated the Freedom of Information Act.

Information about the alleged plot first surfaced in FBI documents — released through a prior FOIA request by a civil-rights legal organization in Washington – that referenced a “plan to kill the leadership via suppressed sniper rifles,” according to court documents. It’s not known who was behind the alleged plot or whether the FBI investigated it.

In a ruling last week, Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia ordered the FBI to explain with more detail why it claims that certain information requested by the student, Ryan Noah Shapiro, is exempted under FOIA.

The law governing the public’s access to records allows the FBI to shield “information compiled for law enforcement purposes” if disclosure would interfere with an investigation, endanger life or cause other types of harm.

That exemption was repeatedly cited by FBI FOIA chief David Hardy in a filing to the court in support of an FBI motion to dismiss Mr. Shapiro’s lawsuit. Some information was redacted, according to Mr. Hardy’s filing, because it involved information shared with local law enforcement agencies related to an investigation of “potential criminal activity by protestors involved with the ‘Occupy’ movement in Houston.” He stated that the potential crimes included “domestic terrorism” and “advocating overthrow of government.”

Judge Collyer said that justification wasn’t sufficient. [Continue reading...]

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Syrian Electronic Army ‘leak’ of Microsoft billing promotes its own agenda

e13-iconIs Bashar al-Assad a defender of human rights? Does the Syrian Electronic Army respect free speech? No and no. But do either have an interest in exploiting the widespread fears of government surveillance? You bet!

If the leaking of Microsoft documents revealing the charges it makes for complying with FBI requests, serves the public interest (which it probably does), no one should conclude on that basis that the Syrian Electronic Army having facilitated this leak, had any interests in mind other than its own and the government it supports.

Daily Dot reports: Microsoft often charges the FBI’s most secretive division hundreds of thousands of dollars a month to legally view customer information, according to documents allegedly hacked by the Syrian Electronic Army.

The SEA, a hacker group loyal to Syrian President Bashar al-Assad, is best known for hijacking Western media companies’ social media accounts. (These companies include the Associated Press, CNN, NPR, and even the Daily Dot.) The SEA agreed to let the Daily Dot analyze the documents with experts before the group published them in full.

The documents consist of what appear to be invoices and emails between Microsoft’s Global Criminal Compliance team and the FBI’s Digital Intercept Technology Unit (DITU), and purport to show exactly how much money Microsoft charges DITU, in terms of compliance costs, when DITU provides warrants and court orders for customers’ data.

In December 2012, for instance, Microsoft emailed DITU a PDF invoice for $145,100, broken down to $100 per request for information, the documents appear to show. In August 2013, Microsoft allegedly emailed a similar invoice, this time for $352,200, at a rate of $200 per request. The latest invoice provided, from November 2013, is for $281,000.

None of the technologists or lawyers consulted for this story thought that Microsoft would be in the wrong to charge the FBI for compliance, especially considering it’s well within the company’s legal right to charge “reasonable expenses.” Instead, they said, the documents are more of an indication of just how frequently the government wants information on customers. Some of the DITU invoices show hundreds of requests per month.

For ACLU Principal Technologist Christopher Soghoian, the documents reiterated his stance that charging a small fee is a positive, in part because it creates more of a record of government tracking. In 2010, Soghoian actually chided Microsoft for not charging the Drug Enforcement Agency for turning over user records when instructed to by courts, noting that companies like Google and Yahoo did.

Nate Cardozo, a staff attorney for the Electronic Frontier Foundation, agreed, and told the Daily Dot the government should be transparent about how much it pays. [Continue reading...]

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When it’s hard to catch terrorists or crooks, it’s easier to create them

Mike Masnick writes: For years now, we’ve been writing about the FBI’s now popular practice of devising its own totally bogus “terrorist plots” and then convincing some hapless individual to join the “plot” only to later arrest them to great fanfare, despite the fact that everyone (other than the arrested person) involved was actually an FBI agent, and there was no actual danger or real plot (or real terrorists) involved. In fact, we just had yet another such story. We’ve written about similar occurances over and over and over and over and over and over and over and over and over and over and over again — and, depressingly, it seems that courts repeatedly uphold this practice as not being entrapment. Many have been questioning why the FBI is spending so much time and money creating fake terrorist plots that don’t seem to protect anyone (but do give the FBI/DOJ lots of big headlines about “stopping terrorism!”), but the courts have basically let it go.

However, it finally appears that one judge thinks these kinds of things go too far — and it happens to be Judge Otis Wright, whose name you may recall from being the first judge to really slap down Prenda law for its obnoxious copyright trolling practices. Reader Frankz alerts us to the news Wright has dismissed a case involving the Bureau of Alcohol Tobacco and Firearms (ATF) for a similar “made up crime” and completely trashed the government for doing these kinds of things. As with his order in the Prenda case, I urge you to read his full dismissal which is granted for “outrageous government conduct.” Judge Wright, it appears, is not one to hide his opinions about those who abuse the legal system. The ruling kicks off with a hint of where this is heading:

“‘Lead us not into temptation,’” Judge Noonan warned. United States v. Black,
733 F.3d 294, 313 (Noonan, J., dissenting). But into temptation the Government has gone, ensnaring chronically unemployed individuals from poverty-ridden areas in its fake drug stash-house robberies. While undoubtedly a valid law-enforcement tool when employed to target or prevent demonstrated criminal enterprises, reverse stings offend the United States Constitution when used solely to obtain convictions.

This case didn’t involve “terrorism” like the FBI cases, but rather a similar “reverse sting” in which an ATF agent pretends to be a cocaine courier, tells some dupes about a “stash house” he knows about and then pushes them to rob the house. [Continue reading...]

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Listen: Dead men tell no tales

f13-iconThis American Life: Last May, a weird story made the news: the FBI killed a guy in Florida who was loosely linked to the Boston Marathon bombings. He was shot seven times in his living room by a federal agent. What really happened? Why was the FBI even in that room with him? A reporter spent six months looking into it, and she found that the FBI was doing a bunch of things that never made the news.

This story was reported by Susan Zalkind in a collaboration with Boston Magazine. Check out Susan’s print story for more about the murders in Waltham, MA, and the investigation into Ibragim Todashev.

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