Obama’s Dragnet: Policeman of the Whole World

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And don’t let anybody make you think that God chose America as his divine, messianic force to be a sort of policeman of the whole world. God has a way of standing before the nations with judgment, and it seems that I can hear God saying to America, “You’re too arrogant! And if you don’t change your ways, I will rise up and break the backbone of your power, and I’ll place it in the hands of a nation that doesn’t even know my name. Be still and know that I’m God.”

–Martin Luther King, “It’s A Dark Day In Our Nation“

As I noted the other day, in his speech on the dragnet, President Obama acknowledged that our unique technical surveillance capabilities demands more humility, not less.

But America’s capabilities are unique. And the power of new technologies means that there are fewer and fewer technical constraints on what we can do. That places a special obligation on us to ask tough questions about what we should do.

Yet that concern about our unique technical capabilities quickly transformed into exceptionalism — a concern about how distrust stemming from our dragnet hubris would corrode our “leadership” position in the world.

Instead, we have to make some important decisions about how to protect ourselves and sustain our leadership in the world, while upholding the civil liberties and privacy protections that our ideals – and our Constitution – require. We need to do so not only because it is right, but because the challenges posed by threats like terrorism, proliferation, and cyber-attacks are not going away any time soon, and for our intelligence community to be effective over the long haul, we must maintain the trust of the American people, and people around the world.

And that, in turn, became our role in protecting “our friends and allies as well.”

Our capabilities help protect not only our own nation, but our friends and allies as well. Our efforts will only be effective if ordinary citizens in other countries have confidence that the United States respects their privacy too. And the leaders of our close friends and allies deserve to know that if I want to learn what they think about an issue, I will pick up the phone and call them, rather than turning to surveillance. In other words, just as we balance security and privacy at home, our global leadership demands that we balance our security requirements against our need to maintain trust and cooperation among people and leaders around the world.

This includes protecting them not just from terrorism and hackers, but from crime — including the crime of violating US sanctions.

In terms of our bulk collection of signals intelligence, U.S. intelligence agencies will only use such data to meet specific security requirements: counter-intelligence; counter-terrorism; counter-proliferation; cyber-security; force protection for our troops and allies; and combating transnational crime, including sanctions evasion.

Of course, a number of countries (much of Latin America) object to the way we fight crime (drug cartels) in their countries. But our pursuit of our own national security has literally turned us into the world’s policeman. Which Obama repeats again — our leadership role requires us to use our dragnet to fight terrorists and crime.

We will appoint a senior official at the White House to implement the new privacy safeguards that I have announced today. I will devote the resources to centralize and improve the process we use to handle foreign requests for legal assistance, keeping our high standards for privacy while helping foreign partners fight crime and terrorism.

How ironic, how prescient, that King spoke our arrogance breaking the backbone of our power. Not only does it threaten to break the ideological backbone of our hegemony — replacing our liberties with our policing — but it quite literally threatens to balkanize the communication backbone we’ve exploited to become that policeman.

President Obama seems to understand what a crisis this poses to our leadership. He does not, yet, understand that that leadership was not supposed to be policing the world.

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More Fallout From Hakimullah Mehsud Drone Killing: Polio Vaccines Halted in Waziristan

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Yesterday, we got the tremendous news that after having lead the world in the number of polio cases as recently as 2009, the World Health Organization announced that there have been zero polio cases in India for three consecutive years. In today’s Express Tribune, we see a discussion of whether and how Pakistan can now rise to the challenge of polio eradication. In the article, we learn that the US drone killing of Pakistan Taliban leader Hakimullah Mehsud not only disrupted the developing plans for peace talks between the Taliban and Pakistan’s government, but it also affected polio vaccinations in North and South Waziristan:

According to the State Minister for National Health Services, Regulations and Coordination Saira Afzal Tarrar, NWA and South Waziristan did not receive any immunisation in months, contrary to former North Waziristan Agency (NWA) surgeon Jan Mir Khan, who was part of recent polio efforts. “After the drone strike that killed Hakimullah, it all stopped. Not just the peace talks, but also our efforts,” she says.

The terrible impact of the CIA’s vaccination ruse employing Dr. Shakeel Afridi in the search for Osama bin Laden has been extensively documented here, but this is the first time I have seen a suggestion that backlash to a drone strike directly resulted in polio vaccines being denied to children. Tarrar is not ready to give up, however, and believes that Pakistan and the Taliban will eventually come to an agreement that will allow vaccinations to resume:

Saira Tarrar also emphasised that the people of the area need to be part of the solution. “Parents are now sick of the ban; this pressurises the Taliban.”

“There is an accessibility problem in Fata, but by 2014, we will get a bargain and get some access.” And access is key, as far as Elias Durray, the head of Polio Eradication at the World Health Organization in Pakistan is concerned. “Immunisation prevents circulation. The virus won’t vanish on its own.”

Let us hope that Pakistan can achieve full vaccine coverage and have polio disappear as quickly in Pakistan as it did in India. Of course, this will require the US actually letting peace negotiations between the Taliban and Pakistan come to fruition, so success is far from guaranteed.

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6th Circuit: You Can Still Represent Yourself if Solitary Confinement Has Made You Incompetent

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As expected, the Sixth Circuit wasted no time in denying Umar Farouk Abdulmutallab’s appeal of his conviction and sentence. The Circuit affirmed District Court Judge Nancy Edmunds on all matters.

Curiously though, in his opinion, Judge David McKeague spends relatively little time on the most contentious issue of the case: whether or not Abdulmutallab was competent to represent himself. He doesn’t really address an issue raised by Abdulmutallab’s Appelate lawyer, Travis Rossman, whether any competence determination be concurrent.

As I noted in my coverage of the hearing, Standby Counsel Anthony Chamber’s case for incompetence was not that Abdulmutallab was incompetent in 2009 when he was arrested or in 2010 when he fired his attorneys, but had been made in competent by 19 months of solitary confinement.

The question wasn’t whether Abdulmutallab was competent on August 17, 2011, Tukel suggested, when Edmunds did not call for a competency hearing, nor whether he was competent on October 12, 2011, when he plead guilty. Rather, it was whether he was competent on September 13, 2010, when he fired his defense attorneys. This was part of what seemed a broader government strategy to obscure the timing issues. He also argued all Abdulmutallab’s most bizarre behavior post-dated the August 2011 hearing. He argued that because Abdulmutallab attended college in England, he must be competent (!). He also argued that US v. Miller weighs against the standard on concurrent determination.

What Tukel didn’t provide much evidence about (beyond that Abdulmutallab always answered Edmunds’ questions about counsel as one would expect a defendant defending himself) is whether he was incompetent in August 2011.

Yemeni daggers. Allahu Akbar. Improper attire. Those are the external signs of “craziness” this hearing focused on.

And yet, in spite of the fact that Rossman repeatedly raised Chambers’ descriptions of Abdulmutallab’s “mental lapses,” no one focused on that question.

Which is crucial because, as Rossman argued (albeit weakly), part of the argument was that the conditions of Abdulmutallab’s confinement — 19 months of solitary confinement by the time of the August 2011 hearing — made him incompetent to defend himself.

And while McKeague pointed to one point where Abdulmutallab responded rationally to Edmunds’ questions, his most sustained case for Abdulmutallab’s competence rests on the Nigerian’s competence in carrying out his terrorist plot 21 months before he pled guilty (note, some of these claims are actually quite contestable, but I won’t deal with that here).

In order for Abdulmutallab to accomplish his goal of blowing up an aircraft over United States soil, Abdulmutallab had to make numerous calculated decisions. A brief overview of the steps that Abdulmutallab took in preparation for his mission is instructive:

  • Abdulmutallab studied the teachings of the radical Imam Anwar Awlaki, which prompted his decision to travel to Yemen for the purpose of meeting Awlaki.
  • While in Yemen, Abdulmutallab agreed to carry out the martyrdom mission.
  • In order to conceal his time in Yemen, Abdulmutallab decided to travel to Ghana before departing to Amsterdam.
  • Abdulmutallab had to come up with clever reasons for traveling to the United States when an airport screener in Amsterdam questioned his reasons for travel.

These actions show the deliberate, conscious, and complicated path Abdulmutallab chose to pursue in the name of martyrdom. Unlike the defendants in Pate and Drope, Abdulmutallab not only acted rationally, but was (nearly) able to execute a complex martyrdom mission. The complexity behind Abdulmutallab’s mission indicates the exact opposite of incompetence.

In other words, McKeague’s opinion most strongly argues that if you’re competent enough to (almost) carry out a terrorist plot then you are competent enough to defend yourself, whether or not 19 months of solitary confinement make you incompetent in the meantime.

Ramzi bin al-Shibh, take note.

Perhaps as significant a part of this ruling as the competency one is how the Circuit dealt with Abdulmutallab’s challenge to his statements at University of Michigan hospital, given the assault on Miranda in other terrorism cases. Not only had he not been Mirandized, but he had also been administered drugs, when he made those comments.

Basically, McKeague punted.

Abdulmutallab argues that the district court erred in failing to suppress the statements he made during his time at the University of Michigan Hospital. Abdulmutallab states that his testimony at the hospital was compelled and therefore the Fifth Amendment prohibited the use of that testimony in trial.

We will not address the merits of Abdulmutallab’s argument, as he waived any right to challenge the suppression of his statements when he entered the guilty plea. When a criminal defendant pleads guilty, “he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards [for effective assistance of counsel].” Tollett v. Henderson, 411 U.S. 258, 267 (1973). This court has held that a defendant who pleaded guilty may not appeal an adverse ruling on a pre-plea motion to suppress evidence “unless he has preserved the right to do so by entering a conditional plea of guilty in compliance with Rule 11(a)(2).”

I don’t question this decision, particularly given the decision on competence. But it’s important because commentators had pointed to Abdulmutallab’s case as precedent for the treatment of (among others) Dzhokhar Tsarnaev. But the Circuit declined to fully endorse his treatment, one way or another.

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The $3 Billion Saudi Pledge to Lebanon: Military Support, Extradition Fee or Hit Job Payment?

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Back in November, two bomb blasts in front of the Iranian embassy in Beirut killed 23 people. From the very beginning, it was known that an al Qaeda-linked group known as the Abdullah Azzam Brigades was responsible for the attack. In a fascinating sequence of events, we have learned that the mastermind of the attack, Majed al-Majed, died in Lebanese custody. Iran claims that Majed had very strong ties to Saudi Arabia, and specifically to Saudi intelligence chief Bandar bin Sultan. In a very interesting twist, Saudi Arabia announced a pledge of $3 billion to Lebanon, ostensibly to be used to buy weapons from France. The announcement most likely came after Majed had been arrested but before news reports had leaked out about his detention, although news reports vary widely on when and where he was detained.

The announcement of the Saudi pledge to Lebanon came on December 29:

Saudi Arabia has pledged $3bn for the Lebanese army, Lebanese President Michel Suleiman announced, calling it the largest grant ever given to the country’s armed forces.

/snip/

“The king of the brotherly Kingdom of Saudi Arabia is offering this generous and appreciated aid of $3bn to the Lebanese army to strengthen its capabilities,” Suleiman said in a televised address on Sunday.

He said the funds would allow Lebanon’s military to purchase French weapons.

An AFP report suggested that Majed was arrested around December 26:

An Al-Qaeda-linked Saudi suspect detained in Lebanon is being held in a military hospital because “he is in poor health”, a medical official told AFP Friday.

/snip/

The doctor who had been treating Majid before his arrest without knowing who he was said he suffers from kidney failure and requires regular dialysis.

“On December 26, the hospital where Majid was being treated contacted the Red Cross to arrange his transfer to another hospital,” said the source.

But before the suspect arrived at the second facility, “the Lebanese army intelligence intercepted the ambulance and arrested Majid,” the source said, adding that neither the hospital nor the ambulance teams had prior knowledge of who Majid was.

In its announcement on January 1 of Majed’s arrest, the New York Times has highly conflicting information about when the arrest took place. First, this bit suggests they were working under the assumption that the arrest was near the January 1 date of the article:

He was taken into custody just three days after Saudi Arabia pledged a $3 billion aid package to the Lebanese Army.

But near the end of this same article, the Times suggests that he was in custody as early as December 15 (clearly before the Saudi pledge was announced):

While it is not known when Mr. Majid was detained, Hezbollah’s television channel Al Manar quoted Lebanese security officials as saying that an attack on a security checkpoint on Dec. 15 near Sidon and the Ein al-Hilwe camp was an attempt by militants to free him.

Given the additional detail and reporting from doctors involved in his treatment, the AFP report seems to me to be more reliable, placing Majed’s arrest after December 26, but most likely not very long after that date since a patient requiring dialysis cannot put if off for very many days.

The Times report suggests that Saudi Arabia considered Majed to be a criminal: Read more →

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Maybe Jim Comey Killed Off the Nation’s Premier Law Enforcement Agency?

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Update: The change went into effect on July 1, 2013, so before Comey’s coronation.

I’ve been tracking the FBI’s embrace of its national security/intelligence role (with a consequent inattention to bank crimes, in particular) for years — notably with this post on its self-congratulation a decade after 9/11. (See also this post, this post, and this one.)

So regular readers will be unsurprised by Foreign Policy’s report that the FBI’s boilerplate fact sheet now hails its primary function to be national security.

But quietly and without notice, the agency has finally decided to make it official in one of its organizational fact sheets. Instead of declaring “law enforcement” as its “primary function,” as it has for years, the FBI fact sheet now lists “national security” as its chief mission. The changes largely reflect the FBI reforms put in place after September 11, 2001, which some have criticized for de-prioritizing law enforcement activities. Regardless, with the 9/11 attacks more than a decade in the past, the timing of the edits is baffling some FBI-watchers.

But I am a bit interested in the question FP goes onto ask: when did this happen. It appears to have happened during the summer.

“What happened in the last year that changed?” asked Kel McClanahan, a Washington-based national security lawyer.

McClanahan noticed the change last month while reviewing a Freedom of Information Act (FOIA) request from the agency. The FBI fact sheet accompanies every FOIA response and highlights a variety of facts about the agency. After noticing the change, McClanahan reviewed his records and saw that the revised fact sheets began going out this summer. “I think they’re trying to rebrand,” he said. “So many good things happen to your agency when you tie it to national security.”

What FP doesn’t answer is why this happened.

But one possibility is the arrival of Jim Comey.

Comey didn’t take over as FBI DIrector until September 4, 2013. But his confirmation hearing (more of a coronation, really) was on July 9; his confirmation vote was on July 29. So he had plenty of time to complete the FBI’s rebranding as a domestic spy agency rather than its premier domestic law enforcement agency before he officially took over.

I checked his confirmation hearing coronation, to see if he announced this rebranding. I’ve been unable to find a formal statement (!!). And while later in the hearing he talked about balancing the intelligence side with the law enforcement side (the FBI itself emphasized this part of the hearing), what apparently extemporaneous statement he did give focused on the FBI’s transition under Robert Mueller to an intelligence agency. (This is my transcription of the non-family part, which took up half of the statement; it starts around 42:30.)

If I’m confirmed for this position I will follow a great American, one who has been clear-eyed about the threat facing our country, especially the metastasizing terrorist threat, the cyber-threat, that poses a risk to our secrets, to our commerce, to our people, and most ominously, to the networks we depend upon as our lifeblood. I know he has changed the FBI, as the Chairman and the Ranking Member described, in fundamental and crucial ways. I know that this will be a hard job. I’m sure that things will go wrong and I will make mistakes. What I pledge to you though is to follow Bob Mueller’s example of staring hard at those mistakes, learning from those mistakes, and getting better as a result of those mistakes. His legacy of candor and straight-forwardness and integrity is one that I pledge to continue. I also know that the FBI is and must be an independent entity in the life of America. It cannot be associated with any party or any interest or any group. It has to be seen as the good guys and good gals in this country. The FBI is and must be about finding the facts and only the facts in a fair, thorough, and objective way, and to do that with a rock-solid commitment to our Constitution and to our laws. That culture of commitment to law and resistance to any jeopardy of independence is at the core of the FBI. I know it is deep inside FBI Agents. Those values are the things that I love about the FBI.

It wouldn’t be surprising that a guy with roots in NY who was prosecuting terrorism even before 9/11 would adopt this focus. Nor do I, thus far, have reason to believe he won’t be better at going after banksters than Mueller was (and Obama has finally shifted some focus to it).

But I do hope — given his appeal to independence — he realizes that making the FBI a domestic intelligence agency does make the FBI a partisan institution, because it de-emphasizes a threat every bit as serious as terrorists and cybercriminals: the banksters.

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2 Agents 3 Hours a Day Weren’t REALLY Reading Anwar al-Awlaki’s Email

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Former CIA Deputy Director John McLaughlin wants you to believe the NSA wasn’t really reading Anwar al-Awlaki’s communications content, on whose emails (including the web-based ones) the NSA had a full-time tap at least as early as March 16, 2008.

In my experience, NSA analysts err on the side of caution before touching any data having to do with U.S. citizens. In 2010, at the request of then-Director of National Intelligence Dennis Blair, I chaired a panel investigating the intelligence community’s failure to be aware of Umar Farouk Abdulmutallab, the “underwear bomber” who tried to blow up a commercial plane over Detroit on Dec. 25, 2009.

The overall report remains classified, but I can say that the government lost vital time because of the extraordinary care the NSA and others took in handling any data involving a “U.S. person.” (Abdulmutallab, a Ni­ger­ian, was recruited and trained by the late Anwar al-Awlaki, a U.S. citizen based in Yemen.)

And maybe that’s the case.

Except it doesn’t seem to square with the report that two FBI Agents were spending 3 hours a day each reading Awlaki’s mail. It doesn’t seem to accord with the efforts those Agents made to chase down the Nidal Hasan lead — which, after all, infringed on the privacy of two American citizens, against one of whom probable cause had not been established. You’d think it would be far easier to chase down the Abdulmutallab messages, particularly given what has been portrayed as more clearly operational content, given that Abdulmutallab would have gotten no protection as a US person.

Sure, those Agents complained about the “crushing” volume of the communications content they had to review every day, but that was a factor of volume, not any restrictions on reading FISA target Anwar al-Awlaki’s email.

Don’t get me wrong. I’m thrilled someone has raised Abdulmutallab in the context of assessing NSA’s dragnet, which I’ve been calling for since October.

UndieBomb 1.0 was the guy who was allegedly plotting out Jihad with Anwar al-Awlaki — whose communications the FBI had two guys reading – over things like chats and calls. That is, Umar Farouk Abdulmutallab was a guy whose plot the NSA and FBI should have thwarted before he got on a plane. (To say nothing of the CIA and NCTC’s fuck-ups.)

And yet, he got on that plane. His own incompetence and the quick work of passengers prevented that explosion, while a number of needles went unnoticed in the NSA’s most closely watched haystacks.

Nevertheless, the lesson DiFi takes is that we need more haystacks.

Shouldn’t the lessons of UndieBomb 1.0 be just as important to this debate as the partial, distorted, lessons of 9/11?

(I’ve also been wondering why Faisal Shahzad, who was getting instructions, including hawala notice, from known targets of drone strikes in Pakistan, before his attack, wasn’t identified by phone and Internet dragnet analysis as a person of interest through those contacts, though that may legitimately be because of turmoil in both dragnet programs.)

But for McLaughlin’s claims to be true then the description of the treatment of the Awlaki wiretaps in the Webster report on the Nidal Hasan investigation wouldn’t seem to make sense.

By all means, let’s hear what really happened back between 2008 and 2010, when the NSA missed multiple contacts with top AQAP targets and TTP targets and as a result missed two of the three main international terrorist attacks on this country since 9/11. That should be part of the debate.

But let’s be very clear whether it was really limits on US person data, when we see FBI reading content of two US persons directly, or rather the sheer volume we’re collecting (as well as the crappy computer systems FBI had in place in 2009) that caused the dragnet to fail.

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After Petraeus Paid Them For Peace, Are Sunnis of Anbar Now Paid by Bandar For Killing?

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Iraq has been seeping back into the headlines lately, as civilian deaths there have now reached a level last seen in 2008. What is striking about this increase is that it did not occur until almost 18 months after the last US troops left Iraq.

Here is a screen capture of the latest data on civilian deaths in Iraq by Iraq Body Count:

IBC

Recall that the final US troops left Iraq in the middle of December, 2011. The civilian death rate had leveled off in 2010 and remained steady throughout all of 2012, not rising significantly until May of 2013. Recall that earlier this week, conclusions of a National Intelligence Estimate on Afghanistan were leaked, suggesting that should the US completely withdraw troops from Afghanistan as we did in Iraq, the situation would deteriorate very rapidly. With Iraq now at high levels of violence, it would be very easy for politicians to lose sight of the very long gap between withdrawal of our troops and the rise in civilian deaths. Iraq should not be used as a cautionary tale against complete withdrawal though, since there was such a long gap between the withdrawal and the degradation of security.

Recall that David Petraeus was quick to accept praise for the drop in civilian death rates that began in late 2007 and continued throughout 2008. Many attributed this calming to Petraeus’ surge and others ascribed it to the “Anbar Awakening” that Petraeus exploited:

Controversially, he even started putting some Sunni groups – including some that had previously fought the U.S. – on the American payroll. The “Anbar Awakening” of Sunni groups willing to cooperate with the Americans had begun in 2005, but at a smaller scale. Petraeus recognized that the groups had real community influence and ability to bring security, whether he liked them or not, and brought them on board. At the program’s peak in 2008, the U.S. had “contracted” 103,000 fighters who were now ostensibly paid to assist an American-dominated peace rather than the disrupt it. That same year, according to Ricks, the U.S. signed ceasefire deals with 779 separate Iraqi militias.

Other analysts, especially Daniel Davis, came to the conclusion that most of the decline in violence was due to Sunni citizens in Anbar rejecting the extreme violence to which al Qaeda had sunk and especially its toll on fellow Muslims.

As is well known, the turning point in 2007 Iraq came when the heart of the Sunni insurgency turned against al-Qaeda and joined with US Forces against them, dramatically reducing the violence in Iraq almost overnight. The overriding reason the Sunni insurgency turned towards the United States was because after almost two years of internal conflict between what ought to have been natural allies – al Qaeda in Iraq (AQI) and the greater Sunni insurgency – a tipping point was reached whereby the Iraqi Sunnis finally and decisively turned against AQI. Had this unnatural split not occurred, by all accounts I have been given on both the Iraqi side and the US military side, “we would still be fighting in Iraq today,” in the words of two officers I know who fought there.

Although there likely are many factors that contributed to the eventual outbreak of violence in Iraq that elevated civilian death rates, one possibility that intrigues me is that the timing fits reasonably well to be a part of Saudi intelligence chief Bandar bin Sultan’s play for regional dominance. Marcy noted this week that the recent bombings in Russia fit with Bandar’s warning delivered to Putin in a secret meeting last July. But if we go back to the report on that meeting, we see this about Bandar’s regional plan and especially how it applied to Syria: Read more →

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Just on Time … Bandar’s Promised Terror Attacks?

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Back in July, Bandar bin Sultan met with Vladimir Putin. As part of an effort to buy off Putin’s support of Bashar al-Assad, Bandar allegedly promised to be able to prevent terrorist attacks tied to the Sochi Olympics.

As an example, I can give you a guarantee to protect the Winter Olympics in the city of Sochi on the Black Sea next year. The Chechen groups that threaten the security of the games are controlled by us, and they will not move in the Syrian territory’s direction without coordinating with us. These groups do not scare us. We use them in the face of the Syrian regime but they will have no role or influence in Syria’s political future.” [my emphasis]

Admittedly, this version of the threat was Putin’s version of it, and admittedly Putin has his own history of allowing attacks to happen.

But Bandar has made such threats before, with more reliable countries. And Bandar’s surrogates have been issuing implicit threats since his July “warning.”

So as we follow the aftermath of the two attacks in Volgograd in two days, and as we get closer to the February start date for the Olympics, it’s worth remembering that Bandar boasted of controlling the Islamic terrorists in Russia.

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Conning the Record, Conning the Courts, Defrauding the People

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In the parlance of the once and forever MTV set, civil libertarians just had one of the “Best Weeks Ever”. Here is the ACLU’s Catherine Crump weighing in on the surprising results of President Obama’s Review Board:

Friday, the president’s expressed willingness to consider ending the NSA’s collection of phone records, saying, “The question we’re going to have to ask is, can we accomplish the same goals that this program is intended to accomplish in ways that give the public more confidence that in fact the NSA is doing what it’s supposed to be doing?”

With this comment and the panel’s report coming on the heels of Monday’s remarkable federal court ruling that the bulk collection of telephone records is likely unconstitutional, this has been the best week in a long time for Americans’ privacy rights.

That “federal court ruling” is, of course, that of Judge Richard Leon handed down a mere five days ago on Monday. Catherine is right, it has been a hell of a good week.

But lest we grow too enamored of our still vaporous success, keep in mind Judge Leon’s decision, as right on the merits as it may be, and is, is still a rather adventurous and activist decision for a District level judge, and will almost certainly be pared back to some extent on appeal, even if some substantive parts of it are upheld. We shall see.

But the other cold water thrown came from Obama himself when he gave a slippery and disingenuous press conference Friday. Here is the New York Times this morning capturing spot on the worthless lip service Barack Obama gave surveillance reform yesterday:

By the time President Obama gave his news conference on Friday, there was really only one course to take on surveillance policy from an ethical, moral, constitutional and even political point of view. And that was to embrace the recommendations of his handpicked panel on government spying — and bills pending in Congress — to end the obvious excesses. He could have started by suspending the constitutionally questionable (and evidently pointless) collection of data on every phone call and email that Americans make.

He did not do any of that.
….
He kept returning to the idea that he might be willing to do more, but only to reassure the public “in light of the disclosures that have taken place.”

In other words, he never intended to make the changes that his panel, many lawmakers and others, including this page, have advocated to correct the flaws in the government’s surveillance policy had they not been revealed by Edward Snowden’s leaks.

And that is why any actions that Mr. Obama may announce next month would certainly not be adequate. Congress has to rewrite the relevant passage in the Patriot Act that George W. Bush and then Mr. Obama claimed — in secret — as the justification for the data vacuuming.

Precisely. The NYT comes out and calls the dog a dog. If you read between the lines of this Ken Dilanian report at the LA Times, you get the same preview of the nothingburger President Obama is cooking up over the holidays. As Ken more directly said in his tweet, “Obama poised to reject panel proposals on 702 and national security letters.” Yes, indeed, count on it.

Which brings us to that which begets the title of this post: I Con The Record has made a Saturday before Christmas news dump. And a rather significant one to boot. Apparently because they were too cowardly to even do it in a Friday news dump. Which is par for the course of the Obama Administration, James Clapper and the American Intel Shop. Their raison de’etre appears to be keep America uninformed, terrorized and supplicant to their power grabs. Only a big time operator like Big Bad Terror Voodoo Daddy Clapper can keep us chilluns safe!

So, the dump today is HERE in all its glory. From the PR portion of the “I Con” Tumblr post, they start off with Bush/Cheney Administration starting the “bulk” dragnet on October 4, 2001. Bet that is when it first was formalized, but the actual genesis was oh, maybe, September 12 or so. Remember, there were security daddies agitating for this long before September 11th.

Then the handcrafted Intel spin goes on to say this:

Over time, the presidentially-authorized activities transitioned to the authority of the Foreign Intelligence Surveillance Act (“FISA”). The collection of communications content pursuant to presidential authorization ended in January 2007 when the U.S. Government transitioned the TSP to the authority of the FISA and under the orders of the Foreign Intelligence Surveillance Court (“FISC”). In August 2007, Congress enacted the Protect America Act (“PAA”) as a temporary measure. The PAA, which expired in February 2008, was replaced by the FISA Amendments Act of 2008, which was enacted in July 2008 and remains in effect. Today, content collection is conducted pursuant to section 702 of FISA. The metadata activities also were transitioned to orders of the FISC. The bulk collection of telephony metadata transitioned to the authority of the FISA in May 2006 and is collected pursuant to section 501 of FISA. The bulk collection of Internet metadata was transitioned to the authority of the FISA in July 2004 and was collected pursuant to section 402 of FISA. In December 2011, the U.S. Government decided to not seek reauthorization of the bulk collection of Internet metadata.

After President Bush acknowledged the TSP in December 2005, two still-pending suits were filed in the Northern District of California against the United States and U.S. Government officials challenging alleged NSA activities authorized by President Bush after 9/11. In response the U.S. Government, through classified and unclassified declarations by the DNI and NSA, asserted the state secrets privilege and the DNI’s authority under the National Security Act to protect intelligence sources and methods. Following the unauthorized and unlawful release of classified information about the Section 215 and Section 702 programs in June 2013, the Court directed the U.S. Government to explain the impact of declassification decisions since June 2013 on the national security issues in the case, as reflected in the U.S. Government’s state secrets privilege assertion. The Court also ordered the U.S. Government to review for declassification all prior classified state secrets privilege and sources and methods declarations in the litigation, and to file redacted, unclassified versions of those documents with the Court.

This is merely an antiseptic version of the timeline of lies that has been relentlessly exposed by Marcy Wheeler right here on this blog, among other places. What is not included in the antiseptic, sandpapered spin is that the program was untethered from law completely and then “transitioned” to FISC after being exposed as such.

Oh, and lest anybody think this sudden disclosure today is out of the goodness of Clapper and Obama’s hearts, it is not. As Trevor Timm of EFF notes, most all of the “I Con” releases have been made only after being forced to by relevant FOIA and other court victories and that this one in particular is mostly germinated by EFF’s court order (and Vaughn index) obtained.

So, with that, behold the “I Con” release of ten different declarations previously filed and extant under seal in the Jewel and Shubert cases. Much of the language in all is similar template affidavit language, which you expect from such filings if you have ever dealt with them. As for individual dissection, I will leave that for later and for discussion by all in comments.

The one common theme that I can discern from a scan of a couple of note is that there is no reason in the world minimally redacted versions such as these could not have been made public from the outset. No reason save for the conclusion that to do so would have been embarrassing to the Article II Executive Branch and would have lent credence to American citizens properly trying to exercise and protect their rights in the face of a lawless and constitutionally infirm assault by their own government. The declarations by Mike McConnell, James Clapper, Keith Alexander, Dennis Blair, Frances Fleisch and Deborah Bonanni display a level of too cute by a half duplicity that ought be grounds for sanctions.

The record has been conned. Our federal courts have been conned. All as the Snowden disclosures have proven. And the American people have been defrauded by pompous terror mongers who value their own and institutional power over truth and honesty to those they serve. Clapper, Alexander and Obama have the temerity to call Ed Snowden a traitor? Please, look in the mirror boys.

Lastly, and again as Trevor Timm pointed out above, these are just the declarations for cases the EFF and others are still pursuing. What of the false secret declarations made in al-Haramain v. Obama, which the government long ago admitted were bogus? Why won’t the cons behind “I Con” release those declarations? What about the frauds perpetrated in Mohamed v. Jeppesen that have fraudulently ingrained states secrets cons into the government arsenal?

If the government wants to come clean, here is the opportunity. Frauds have been perpetrated on our courts, in our name. We should hear about that. Unless, of course, Obama and the “I Cons” are really nothing more than simple good old fashioned cons.

[By the way, Christmas is a giving season. If you have extra cheer to spread, our friends like Cindy Cohn, Trevor Timm, Hanni Fakhoury and Kurt Opsahl et al at EFF, and Ben Wizner, Alex Abdo, Catherine Crump et al at the ACLU all do remarkable work. Share your tax deductible love with them this season if you can. They make us all better off.]

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US Government Slaps HSBC’s Wrist for Facilitating Terrorism, Again

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As I noted last year, when DOJ trumpeted their settlement with HSBC for a slew of money laundering violations, they didn’t mention that HSBC had provided almost a billion dollars to a Saudi bank that funded terrorists. Effectively, HSBC’s material support for terrorism for 5 years after it first realized it was doing so got completely ignored.

It turns out, between the time in 2010 when HSBC stopped providing cash dollars to a terror-supporting bank and the time of the DOJ settlement, HSBC was still violating counterterrorism sanctions. Treasury’s Office of Foreign Assets Controls just issued another settlement with HSBC’s US branch, detailing how HSBC processed 3 transfers totaling over $40,164 involving Husayn Tajideen after the bank learned he had gotten listed a designated terrorist. Not a huge amount of money, but over 4 times what Basaaly Moalin is going to jail for.

It’s OFAC’s rationale it uses to rationalize giving a recidivist just a $32,400 penalty that I find particularly egregious.

The settlement amount reflects OFAC’s consideration of the following facts and circumstances, pursuant to the General Factors under OFAC’s Economic Sanctions Enforcement Guidelines, 31 C.F.R. part 501, app. A. OFAC considered the following to be mitigating factors: HBUS voluntarily self-disclosed the apparent violations to OFAC; HBUS took appropriate remedial action in response to these apparent violations and now has a more robust compliance program in place; and HBUS has not received a penalty notice or Finding of Violation from OFAC for substantially similar apparent violations in the five years preceding the earliest date of the transactions giving rise to the apparent violations. The settlement amount reflects the following aggravating factors: HBUS managers and employees whose primary responsibility includes OFAC compliance were aware of the first apparent violation and had reason to be aware of the second and third apparent violations; the apparent violations resulted in actual economic benefit to an SDGT; HBUS is a large and commercially sophisticated financial institution; HBUS initially provided an incomplete response to an administrative subpoena; and, at the time of the first apparent violation, HBUS’ compliance program did not screen all MT 199 messages for potential OFAC matches. OFAC further reduced the proposed penalty in light of HBUS’ agreement to settle its potential liability for the apparent violations. [my emphasis]

Some of this is typical mumbo jumbo (though in this case, should be read with the awareness that Stuart Levey, who used to be Under Secretary of Terrorism Finance and Intelligence, got named HSBC’s General Counsel in 2012, so the subsequent actions likely represent his involvement).

But the claim that HBUS hadn’t had any substantially similar violations in the five years previous is just ridiculous. They had been busted for all sorts of very similar money laundering problems involving known drug kingpins and were uniquely important in providing cash that terrorists likely used for significant attacks. It’s only not substantially similar because it is orders of magnitude worse, so much so DOJ got involved and the settlement was with a different agency!

And in response to a recidivist being caught again, OFAC fines a bank with $14 billion in profits $32,400.

Update: In a statement to WSJ, Treasury said this settlement with a recidivist is unrelated to the past settlement with the recidivist.

But a Treasury spokesman said in an email that Tuesday’s settlement is unrelated to the December 2012 agreement with OFAC and other federal and state agencies.

“This action is similar to other settlements OFAC has reached with regard to apparent violations committed by U.S. financial institutions,” he said.

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