Don't Worry!!

Be happy!! "The surveillance by the National Security Agency...would rely on a set of sensors deployed in computer networks for critical infrastructure that would be triggered by unusual activity suggesting an impending cyber attack...." They're calling it "Perfect Citizen". WSJ (07.08.10), via Balloon Juice:

"'The overall purpose of the [program] is our Government...feel[s] that they need to insure the Public Sector is doing all they can to secure Infrastructure critical to our National Security,' said one internal Raytheon email, the text of which was seen by The Wall Street Journal. 'Perfect Citizen is Big Brother.'"

U.S. Program to Detect Cyber Attacks on Infrastructure

Jon over at Wired seems a bit skeptical.

Jeepers. Why would that be?

Welcome To America

Every day diplomacy, via Sullivan, via Cunning Realist.

What have we become?

I Spy

USAToday (10.24.07), via Attytood:

"The government's terrorist watch list has swelled to more than 755,000 names, according to a new government report that has raised worries about the list's effectiveness.

The size of the list, typically used to check people entering the country through land border crossings, airports and sea ports, has been growing by 200,000 names a year since 2004.

Terror watch list swells to more than 755,000

"Some lawmakers, security experts and civil rights advocates warn that it will become useless if it includes too many people."

Ya think?

Don't Ask; Don't Tell

Shhh. It's a secret. Jack was "the Justice Department's top legal adviser to the White House from 2003 to 2004", and "was in charge of writing formal legal opinions and interpretations for the executive branch." In other words, he knows whereof he speaks. AP (10.02.07):

"A former top lawyer for the Bush administration on Tuesday said that parts of the President Bush's much-criticized eavesdropping program were illegal.

There were aspects of the Terrorist Surveillance Program 'that I could not find the legal support for,' Jack Goldsmith, the former head of the Justice Department's Office of Legal Counsel, told the Senate Judiciary Committee.

Ex-White House Lawyer Targets Spy Tactic

Even though he feels that way, he wouldn't say "exactly what law or constitutional principle the surveillance violated" because "the White House has forbidden him from saying anything about the legal analysis underpinning the program".

And the legal justification for TSP? That was "so secretive it initially was not even shared with top officials, including the general counsel of the National Security Agency, which conducted the surveillance." That's pretty secret.

Why aren't George and Dick keen on much of this getting out? Jack thinks that "'the extreme secrecy — not getting feedback from experts, not showing it to experts — led to a lot of mistakes.'"

An understatement if we've ever heard one.

That Damned Bill Of Rights Again

First the national security letters. Now this. Annoying thing, that Constitution. AP (09.26.07):

"Two provisions of the USA Patriot Act are unconstitutional because they allow search warrants to be issued without a showing of probable cause, a federal judge ruled Wednesday.

U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, 'now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.'"

2 Patriot Act Provisions Ruled Unlawful

"Portland attorney Brandon Mayfield sought the ruling in a lawsuit against the federal government after he was mistakenly linked by the FBI to the Madrid train bombings that killed 191 people in 2004."

"The federal government apologized and settled part of the lawsuit for $2 million after admitting a fingerprint was misread. But as part of the settlement, Mayfield retained the right to challenge parts of the Patriot Act, which greatly expanded the authority of law enforcers to investigate suspected acts of terrorism."

Ooops!!

NYTimes (09.11.07):

"The government’s ability to eavesdrop on terrorism suspects overseas allowed the United States to obtain information that helped lead to the arrests last week of three Islamic militants accused of planning bomb attacks in Germany, Mike McConnell, the director of national intelligence, told senators on Monday."

New U.S. Law Credited in Arrests Abroad

On Monday, Mike rather unambiguously told the Senate Homeland Security and Governmental Affairs Committee that "the information had been obtained under a newly updated and highly contentious wiretapping law, the Foreign Intelligence Surveillance Act."

On second thought. AP (09.12.07):

"The nation's top intelligence official on Wednesday recanted his claim that new surveillance powers recently given to the U.S. government helped foil a terrorist plot in Germany.

'Information contributing to the recent arrests was not collected under authorities provided by the Protect America Act,' Director of National Intelligence Mike McConnell said in a statement issued Wednesday."

New Law Did Not Help in Terror Arrests

"Representative Silvestre Reyes (D - TX16), chair of the House Permanent Select Committee on Intelligence called bullshit. "'In fact, FISA, which [Mike] repeatedly [claims] is 'outdated,' was precisely the tool that helped disrupt this plot,' Reyes said. 'The new law did not lead to the arrests of the three terrorist plotters, as [Mike] claimed.'"

See? Getting a warrant isn't all that big o' deal.

That Damned Bill Of Rights

Always causing trouble. AP (09.06.07):

"A federal judge struck down a key part of the USA Patriot Act on Thursday in a ruling that defended the need for judicial oversight of laws and bashed Congress for passing a law that makes possible 'far-reaching invasions of liberty.'

U.S. District Judge Victor Marrero immediately stayed the effect of his ruling, allowing the government time to appeal. Justice Department spokesman Dean Boyd said: "We are reviewing the decision and considering our options at this time.""

Judge Strikes Down Part of Patriot Act

"The ACLU had challenged the law on behalf of an Internet service provider, complaining that the law allowed the FBI to demand records without the kind of court supervision required for other government searches. Under the law, investigators can issue so-called national security letters to entities like Internet service providers and phone companies and demand customers' phone and Internet records."

UPDATE: More on those nifty National Security Letters, via Firedoglake.

Shhhh!

Everything's a secret. But you can trust us. NYTimes (08.15.07):

"Three federal appeals court judges hearing challenges to the National Security Agency’s surveillance programs appeared skeptical of and sometimes hostile to the Bush administration’s central argument Wednesday: that national security concerns require that the lawsuits be dismissed.

'Is it the government’s position that when our country is engaged in a war that the power of the executive when it comes to wiretapping is unchecked?' Judge Harry Pregerson asked a government lawyer."

U.S. Defends Surveillance to 3 Skeptical Judges

Why yes, your honor. It is.

"The three judges, members of the United States Court of Appeals for the Ninth Circuit, were hearing arguments in two lawsuits challenging the highly classified surveillance programs, which the administration says are essential in fighting international terrorism. The appeals were the first to reach the court after dozens of suits against the government and telecommunications companies over N.S.A. surveillance were consolidated last year before the chief judge of the federal trial court here, Vaughn R. Walker."

"The appeals concern two related questions that must be answered before the merits of the challenges can be considered: whether the plaintiffs can clearly establish that they have been injured by the programs, giving them standing to sue; and whether the state secrets privilege requires dismissal of the suits on national security grounds."

The Feds are having a rough time of it. "Judge Pregerson, appointed by President Jimmy Carter, appeared irritated with the government’s arguments, and he became frustrated when [deputy solicitor general Gregory G. Garre] said he could not provide simple answers to questions about the scope of a recently amended 1978 law, the Foreign Intelligence Surveillance Act. Mr. Garre said it was a complicated law."

Harry wasn't buying it. "'Can’t be any more complicated than my phone bill,' Judge Pregerson said."

Excellent live-blogging over at ThreatLevel. They're all over this one.

I Saw What You Did

Why is it when we read this, we began to hear the faint sound of quacking ducks? McClatchy (08.14.07):

"Next time you go to the airport, there may be more eyes on you than you notice.

Specially trained security personnel are watching body language and facial cues of passengers for signs of bad intentions.

New airport agents check for danger in fliers' facial expressions

The Feds are calling 'em "Behavior Detection Officers". Transportation Security Administrator Kip Hawley "described them as 'a wonderful tool to be able to identify and do risk management prior to somebody coming into the airport or approaching the crowded checkpoint.'"

The idea is to use something called "'micro-expressions' to identify hidden emotions". About 30 years ago Professor Paul and a colleague "began studying videotapes of people telling lies. When they slowed down the videotapes, they noticed distinct facial movements and began to catalogue them. They were flickers of expression that lasted no more than a fraction of a second."

Flickers of expression, lasting fractions of a seconds? Couldn't possibly misread that.

Here's the kicker. "Different cultures express themselves differently. Expressions and body language are easy to misread, and no one's catalogued them all. [Paul Ekman, former professor at the UC San Francisco who has advised the TSA about this stuff] notes that each culture has its own specific body language, but that little has been done to study each individually in order to incorporate them in a surveillance program."

Gee. You don't suppose some folks will end up looking more suspicious than others, do you?

And whatever you do, don't call Kip Hawley an idiot. Not now, not evah.

Trust Us

We're with the government. LATimes (08.07.07);

"The Bush administration rushed to defend new espionage legislation Monday amid growing concern that the changes could lead to increased spying by U.S. intelligence agencies on American citizens.

In a public relations push to counter criticism of the new law, senior administration officials cited a combination of legal barriers and resource restrictions that they said would keep the government from sifting through e-mails and phone calls of Americans without obtaining court warrants first.

Bush administration defends spy law

"But officials declined to provide details about how the new capabilities might be used by the National Security Agency and other spy services. And in many cases, they could point only to internal monitoring mechanisms to prevent abuse of the new rules that appear to give the government greater authority to tap into the traffic flowing across U.S. telecommunications networks."

"Under the new law, U.S. spy agencies are free to intercept the e-mails and phone calls of any person 'reasonably believed to be located outside of the United States,' even if the target is a U.S. citizen or is communicating with someone within U.S. borders. The U.S. attorney general [ed. - that would be Alberto the Trustworthy] and the director of national intelligence would make that determination, although the procedures they used to do so would be subject to review by a special court called the Foreign Intelligence Surveillance Court."

"The law also compels American telecommunications companies to cooperate with the government and provide access to their networks, which account for a disproportionate share of global communications traffic — including calls and e-mails that begin and end in other countries."

Reach out and touch someone today. Or else.

I Spy

NYTimes (07.29.07):

"A 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program.

It is not known precisely why searching the databases, or data mining, raised such a furious legal debate."

Mining of Data Prompted Fight Over Spying

Why such a furious debate? How about this, from Eschaton (07.28.07):

"Look, all the parsing of statements is a waste of time. [The Bush Administration was] eavesdropping on whoever they wanted to without any warrants or oversight.

Whether or not 'whoever they wanted to' included, say, the John Kerry campaign or Markos Moulitsas is still an open question. They obviously claimed the power to do so, it just isn't clear if they did it."

Whoever the Hell They Wanted To Without Warrants

An observation from Josh Marshall (07.28.07):

"As you can see, we now have the first hint of what was at the center of the Ashcroft hospital room showdown. According to the New York Times, what the White House calls the 'terrorist surveillance [i.e., warrantless wiretap] program' originally included some sort of largescale data mining.

Data Mining

"I don't doubt that this is true as far as it goes. But this must only scratch the surface because, frankly, at least as presented, this just doesn't account for the depth of the controversy or the fact that so many law-and-order DOJ types were willing to resign over what was happening. Something's missing."

...

"To put this into perspective, remember that the White House has been willing to go to the public and make a positive argument for certain surveillance procedures (notably evasion of the FISA Court strictures) which appear to be illegal on their face."

"This must be much more serious and apparently something all but the most ravenous Bush authoritarians would never accept. It is supposedly no longer even happening and hasn't been for a few years. So disclosing it could not jeopardize a program. The only reason that suggests itself is that the political and legal consequences of disclosure are too grave to allow."

Ruling In Favor Of An Enemy Combatant?

We'd prefer to think of it as a ruling in favor of the Constitution. AP (06.11.07):

"The Bush administration cannot legally detain a U.S. resident it suspects of being an al-Qaida sleeper agent without charging him, a divided federal appeals court ruled Monday.

'To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them 'enemy combatants,' would have disastrous consequences for the constitution — and the country,' the court panel said.

Court Rules in Favor of Enemy Combatant

"In the 2-1 decision, the 4th U.S. Circuit Court of Appeals panel found that the federal Military Commissions Act doesn't strip Ali al-Marri, a legal U.S. resident, of his constitutional rights to challenge his accusers in court." From the opionion. Al-Marri v. Wright (06.11.07):

"For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution."

Al-Marri v. Wright

"We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic."

Dear George and Dick:

Bite us.

Love,

The Court

Thanks, But No Thanks

No Comment (05.19.07):

"For decades, the best and brightest law school graduates of any generation would battle over the handful of openings at main Justice and with various U.S. attorneys offices.

No longer. Today, association with the Gonzales Justice Department is feared as a taint on any lawyer’s résumé."

I’d Rather Trade Places with Jose Padilla

"And here’s the best evidence I have seen of this so far. When asked if he would take Paul J. McNulty’s slot as Deputy Attorney General, the man who ran the Office of Legal Policy for John Ashcroft, Viet Dinh, has an instant response: 'I’d rather trade places with Jose Padilla,' he says, referring to a man [ed. - a US citizen, we'd hasten to add] who was tortured and placed in solitary confinement in the Naval brig in South Carolina."

Held there for three years without charges.

Guess you could say Dinh really doesn't want the job.

This Is What It's Come To

How pathetic. The crux of the government's case is that Padilla allegedly filled out an application to become a terrorist? Oh wait. It was actually a "Mujahideen Data Form". LATimes (05.13.07):

"When federal prosecutors begin to present evidence Monday against terrorism suspect Jose Padilla, their case is expected to rest heavily on a single document: his alleged application to become an Islamic warrior.

The federal indictment says Padilla filled out the mujahedin data form on July 24, 2000, 'in preparation for violent jihad training in Afghanistan.'"

Padilla case has changed a lot in 5 years

The indictment also claims that this rum-dum "and two codefendants sought U.S. recruits and funding for foreign holy wars." Really effective, they were.

"Nowhere in the indictment is there mention of the sensational charges leveled against Padilla when he was arrested at O'Hare International Airport in May 2002. Then-Atty. Gen. John Ashcroft said U.S. agents had thwarted a plot between Padilla, who is a U.S. citizen, and top Al Qaeda figures to detonate a radioactive 'dirty bomb' or blow up apartment buildings in U.S. cities."

Padilla, a US citizen, "had been held at [a military brig in Charleston, S.C.] for 3 1/2 years as an 'enemy combatant' with status more like the detainees at Guantanamo than a U.S. citizen incarcerated for the charges he would eventually face in federal court. Much of the time he was without human contact, daylight, any timepiece or a mirror. He was subjected to 'stress positions' and extremes of heat, noise and light. And interrogations without an attorney present, the government has said, elicited information the Justice Department included in a widely publicized June 2004 report on Padilla's alleged contacts with Al Qaeda."

Ahhhh yes. We had a Constitution here once. Had something called a Bill of Rights in it. What a quaint little document it was!

Sorry!

AP (03.10.07):

"The nation's top two law enforcement officials acknowledged Friday the FBI broke the law to secretly pry out personal information about Americans. They apologized and vowed to prevent further illegal intrusions.

Attorney General Alberto Gonzales left open the possibility of pursuing criminal charges against FBI agents or lawyers who improperly used the USA Patriot Act in pursuit of suspected terrorists and spies."

Gonzales, Mueller Admit FBI Broke Law

Won't happen again. Promise.

That Pesky Oversight Thing

NYTimes (03.09.07):

"The Justice Department’s inspector general has prepared a scathing report criticizing how the F.B.I. uses a form of administrative subpoena to obtain thousands of telephone, business and financial records without prior judicial approval.

The report, expected to be issued on Friday, says that the bureau lacks sufficient controls to make sure the subpoenas, which do not require a judge’s prior approval, are properly issued and that it does not follow even some of the rules it does have.

U.S. Report to Fault F.B.I. on Subpoenas

"Under the USA Patriot Act, the bureau each year has issued more than 20,000 of the national security letters, as the demands for information are known. The report is said to conclude that the program lacks effective management, monitoring and reporting procedures, officials who have been briefed on its contents said."

"The use of national security letters since the September 2001 attacks has been a hotly debated domestic intelligence issue. They were once used only in espionage and terrorism cases, and then only against people suspected as agents of a foreign power."

"With the passage of the Patriot Act, their use was greatly expanded and was allowed against Americans who were subjects of any investigation. The law also allowed other agencies like the Homeland Security Department to issue the letters."

"The letters have proved contentious in part because unlike search warrants, they are issued without prior judicial approval and require only the approval of the agent in charge of a local F.B.I. office."

Gee. You mean to say their use was abused?

Padilla, Redux

In a previous post, we said this: "And by the way, for whatever it was that numbskull Jose was doing, he was a US citizen. And our government held him for more than three years without charges." Commentator loki suggested we elaborate upon why "arbitrary indefinite detention [of a US citizen] is anti-American". Fair enough. First, there's the Sixth Amendment:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

Now that's a protection-packed paragraph if we ever read one. Many of these concepts date at least to the Magna Carta. Then there's the Fourth Amendment:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Otherwise known as the "Due Process" clause. That's pretty protection-packed too. That'd be good for starters.

To Be Identified By Name Would Subject Them To Reprisals

This article is based on interviews with "current and former government officials", who "spoke a day after Attorney General Alberto R. Gonzales repeatedly refused at to address questions a news conference about why the government had not brought criminal charges related to the most serious accusations."

The Feds are making a lot of noise about "not backing off its initial assertions about the seriousness of Mr. Padilla's actions." On the other hand, the criminal charges mention nothing about the "dirty bomb", which was why the Feds picked Jose up in the first place. Remeber? Supposedly he was going to blow up Chicago?

The folks the Times talked to "were granted anonymity, saying to be identified by name would subject them to reprisals for addressing questions that Mr. Gonzales had declined to answer." NYTimes (11.23.05):

"The Bush administration decided to charge Jose Padilla with less serious crimes because it was unwilling to allow testimony from two senior members of Al Qaeda who had been subjected to harsh questioning, current and former government officials said Wednesday."

Shift on Suspect Is Linked to Role of Qaeda Figures

"The Qaeda members were Khalid Shaikh Mohammed, believed to be the mastermind of the Sept. 11, 2001, attacks, and Abu Zubaydah, a top recruiter, who gave their accounts to American questioners in 2002 and 2003."

These two "were the main sources linking Mr. Padilla to a plot to bomb targets in the United States".

Khalid and Abu "continue to be held in secret prisons by the Central Intelligence Agency, whose internal reviews have raised questions about their treatment and credibility, the officials said.

One review "by the C.I.A. inspector general, found that Mr. Mohammed had been subjected to excessive use of a technique involving near drowning in the first months after his capture".

By going light on Jose, the Feds are thinking Khalid and Abu will not be called as witnesses. The Feds say if they were, their testimony would "expose classified information". Whatever else this "classified information" might contain, it probably would provide the defense more than enough to argue that Khalid and Abu's "earlier statements [implicating Jose] were a result of torture".

As well, "part of the bombing accusations hinged on incriminating statements that officials say Mr. Padilla made after he was in military custody - and had been denied access to a lawyer."

"'There's no way you could use what he said in military custody against him,' a former senior government official said."

Well this was a big deal, right? AP (11.23.05):

"Jose Padilla was recruited into an Islamic terrorist support cell that sought money and fighters for violent struggles abroad, the government says in its indictment.

However, over nine years the group raised less than $100,000 and recruited just a handful of people, including Padilla, according to federal prosecutors."

Indictment: Padilla Recruited by Terrorists

Wow. Really on to something there, eh?

Even at the time Jose was arrested, "FBI Director Robert Mueller said the plot was in the 'discussion stage' when the suspect, Abdullah Al Muhajir, was arrested." In other words, the most they were doing was talking about it.

Big deal? Yeah. Big, fucking deal.

Big John, however, felt that Jose was nothing less than "a serious and continuing threat to the American people and our national security."

Golly. The facts really proved that one up, eh? Arkin's Early Warning (11.23.05):

"The government is oh so happy to sweep Mr. Padilla's three-year confinement in a Navy brig under the rug. Lost in the shuffle is the dirty bomb threat, a threat both hyped and insignificant.

The threat, nonetheless, is at the center of a money wasting, incompetent government industry."

Jose Padilla's Dirty Secret

And by the way, for whatever it was that numbskull Jose was doing, he was a US citizen. And our government held him for more than three years without charges.