The FBI’s Official “CAIR Has Cooties Guidance Directive [Redacted]”

/12 Comments/in , , /by

I had just about come to the conclusion that Michael Horowitz, DOJ’s Inspector General who took over after Glenn Fine retired in 2010, was a worthy successor. In recent weeks, Horowitz has released reports critical of DOJ’s handling of classified information, its refusal to account for drones’ unique risks to privacy, and the Bureau of Alcohol, Tobacco, and Firearms’ use of “churning” (money-making) operations.

But then I read this report — on the FBI’s Interactions with the Council on American-Islamic Relations — and I got literally sick to my stomach.

The report purports to determine whether the FBI complies with Agency guidance — the title and issuing authority for which are redacted in the report, which is why I am referring to it as the “Cooties Guidance Directive [Redacted]” throughout, even where it is redacted in direct quotes — that FBI personnel are not to engage in any community outreach with people from CAIR. For results, it shows that in three of five cases where FBI personnel did engage (or almost engage!) with people from CAIR, the personnel either didn’t consult with the FBI entity the IG deems to be in charge of this policy (which is probably the Counterterrorism Division, but the IG Report redacts that too), or consulted instead with the Office of Public Affairs, which is in charge of community outreach.

In response to these shocking (!!) results, Congressman Frank Wolf has already called for heads to roll.

But what the report actually shows is, first of all, how in response to two non-criminal pieces of evidence — a meeting between men who would go on to found CAIR and Hamas, which was not yet a designated a terrorist organization, and CAIR’s designation as an unindicted co-conspirator in the Holy Land Foundation case (the publication of which was subsequently deemed a violation of the group’s Fifth Amendment rights) — the FBI formulated a formal policy to treat that organization as if it has cooties.

And yet, even the language the IG repeats about this policy makes it clear that the FBI was operating on a policy of “guilty until proven innocent.”

The guidance specifically stated that, until the FBI could determine whether there continued to be a connection between CAIR or its executives and Hamas, “the FBI does not view CAIR as an appropriate liaison partner” for non-investigative activities.

That is, for the entire 5 year period versions of this policy have been in place, FBI has maintained that so long as it doesn’t develop evidence that CAIR has no ties to Hamas, then FBI will treat the organization and its officials as if they do have such ties by refusing to let them on FBI property or attend any CAIR-affiliated events. And we’re supposed to believe, I guess, that the FBI has used not a single one of their intrusive investigative methods to try to prove or disprove this allegation in the interim 5 years, and so it just will never know whether the allegation is correct or not, and so must operate on the playground Cooties standard.

Heck, in one of the “incidents” the report investigates, the local FBI office actually vetted an event participant to make sure his service on CAIR’s local board didn’t taint all his other community ties so badly that he should not participate in the event.

Yet whether or not a particular CAIR representative [redacted] is irrelevant to the Cooties Guidance Directive  [Redacted] to deny the organization access to the FBI in such non-investigative community-outreach activities.

And the IG Report — Michael Horowitz’ report — judges that vetting that found this gentleman to be innocent was not sufficient reason to ignore the Cooties Guidance Directive [Redacted]. The Report seems to endorse the view that vetting notwithstanding, this guy had a formal role in CAIR that made all his other roles in the Muslim community suspect and that’s the way things work in America.

Then there’s the underlying logic. The entire policy is premised on a bizarre belief that it is exploitative for a Muslim organization to advertise its willingness to work with the FBI.

The June 2011 EC also reiterated that CAIR was not prohibited from “maintaining a relationship with the FBI regarding civil rights or criminal violations; however, civil rights and criminal squads should be cognizant CAIR has exploited these relationships in the past.”

[snip]

The end result of this incident- CAIR posting on its website of a photograph showing the SAC speaking at the event and a description of CAIR’s Civil Rights Director moderating his speech is the sort of exploitation of contact with the FBI that the Cooties Guidance
Directive [Redacted] was intended to avoid.

I don’t get it. If CAIR really were a terrorist sleeper cell, wouldn’t advertising their willingness to associate with the FBI completely ruin all their terrorist Cred, and therefore neutralize whatever threat they presented?

In any case, on the one hand, the report chronicles how the federal agency in charge of investigating civil rights abuses basically treated an entire constitutionally protected civil rights organization as guilty without charging it with any crime.

But then there’s the fact that, after responding to a request to fear-mongers in Congress, this report saw the light of day in the fashion it appears.

As noted above, the IG Report seems to accept this premise of guilty until proven innocent without noting the problem underlying it. Like, you know, the Constitution. In places, the language of the report even echos that of a presumption of guilt, as in this passage where it berates OPA for actually treating an individual with multiple formal ties to the Muslim community as such, rather than as someone branded solely by his affiliation with CAIR.

It appears that OPA provided guidance that effectively reversed the presumption against CAIR participation in non-investigatory FBI activities in this instance. OPA indicated that it wanted to ensure that there was sufficient justification for excluding the CAIR participant apart from his role in CAIR.

Then there’s the way in which this was released. While the actual Cooties Guidance  Directive [Redacted] is classified, nothing else in the report seems like it should be (though the FBI has removed the classification marks from the paragraphs to hide the basis for their claims that this is classified). In particular, FBI or DOJ or OIG has chosen to redact anything that would make it clear whether this is an actual policy, or just guidance on which CTD and OPA disagree (in their complaint about the report, the ACLU notes that it doesn’t appear to have gone through the formal policy-making process). And yet, having hidden that information, the IG presents it as if the failure to implement the Cooties Guidance Directive [Redacted] is a graver problem than the upending of presumption of innocence.

Finally, there are a few tonal issues. For example, the report presents this view — from a Chicago SAC who twice blew off the Cootie Guidance Directive [Redacted] — as if his basic civility presents a problem.

He stated that if DHS considered CAIR officials to be part of the community and invited them to the Roundtable, the FBI was not going to deny them entry at the door.

In another instance, it quotes another violating SAC as using the term “Islamophobia” (PDF 22), but presents the term in scare quotes. This is borderline McCarthyist shit, treating the language of people fighting terrorists by treating Muslims as human beings as some kind of brand against them.

Finally, there’s the timing of this. The fear-mongers requested this report in March 2012 — over 20 months after after the Section 215 IG Report that we’ve been waiting for for 1,224 days got started. Three of four of what are probably interviews with those deemed in violation of this guidance took place over the course of 8 days in August and September of 2012 (the last took place in July, which makes me wonder whether that was added to beef up an otherwise thin report.)

But then the report didn’t get released until a second state CAIR affiliate starts challenging the FBI’s killing of a Muslim person. And the IG Report got released on the very same day that CAIR released a major report on Islamophobia (or, as the IG appears to treat it, “Islamophobia.”)

The whole thing seems designed not to make the FBI a more orderly place (if that were the purpose, then it might be better to focus on how the Cooties Guidance Directive
[Redacted] became formal policy — if it did — without going through formal policy channels). Rather, it seems designed to foment a kind of McCarthyism within FBI targeted at those counterterrorism investigators who believe the best way to fight Islamic extremists is to treat Muslims as partners in rooting out violence.

The Scandal of Lying about “Thwarted” “Plots” Started 4 Years Ago

/13 Comments/in , , /by

As predicted, one big takeaway from yesterday’s NSA hearing (the other being the obviously partial disclosure about location tracking) is Keith Alexander’s admission that rather than 54 “plots” “thwarted” in the US thanks to the dragnet, only one or maybe two were. Here are some examples.

But they’re missing this real scandal about the government’s lies about the central importance of Section 215.

That scandal started 4 years ago, when an example the FBI now admits had limited import played a critical role in the reauthorization of Section 215 without limits on the dragnet authority.

First, note that even while Leahy got Alexander to back off his “54 plots” claim, the General still tried to insist Section 215 had been critical in two plots, not just one.

SEN. LEAHY: Let’s go into that discussion, because both of you have raised concerns that the media reports about the government surveillance programs have been incomplete, inaccurate, misleading or some combination of that. But I’m worried that we’re still getting inaccurate and incomplete statements from the administration.

For example, we have heard over and over again the assertion that 54 terrorist plots were thwarted by the use of Section 215 and/or Section 702 authorities. That’s plainly wrong, but we still get it in letters to members of Congress; we get it in statements. These weren’t all plots, and they weren’t all thwarted. The American people are getting left with an inaccurate impression of the effectiveness of NSA programs.

Would you agree that the 54 cases that keep getting cited by the administration were not all plots, and out of the 54, only 13 had some nexus to the U.S. Would you agree with that, yes or no?

DIR. ALEXANDER: Yes.

SEN. LEAHY: OK. In our last hearing, Deputy Director Inglis’ testimony stated that there’s only really one example of a case where, but for the use of Section 215, bulk phone records collection, terrorist activity was stopped. Is Mr. Inglis right?

DIR. ALEXANDER: He’s right. I believe he said two, Chairman; I may have that wrong, but I think he said two, and I would like to point out that it could only have applied in 13 cases because of the 54 terrorist plots or events, only 13 occurred in the U.S. Business Record FISA was only used in (12 of them ?).

SEN. LEAHY: I understand that, but what I worry about is that some of these statements that all is — all is well, and we have these overstatements of what’s going on — we’re talking about massive, massive, massive collection. We’re told we have to do that to protect us, and then statistics are rolled out that are not accurate. It doesn’t help with the credibility here in the Congress; doesn’t help with the credibility with us, Chairman, and it doesn’t help with the credibility with the — with the country. [my emphasis]

Here’s the transcript at I Con the Record from the previous hearing, where Inglis in fact testified that Section 215 was only critical in the Basaaly Moalin case (which was not a plot against the US but rather funding to defeat a US backed invasion of Somalia).

MR. INGLIS: There is an example amongst those 13 that comes close to a but-for example and that’s the case of Basaaly Moalin.

 

That is, in fact, Inglis said it had been critical in just one “plot.”

After he did, FBI Deputy Director Sean Joyce piped in to note the phone dragnet also “played a role” by identifying a new phone number of a suspect we already knew about in the Najibullah Zazi case.

MR. JOYCE: I just want to relate to the homeland plots. So in Najibullah Zazi and the plot to bomb the New York subway system, Business Record 215 played a role; it identified specifically a number we did not previously know of a —

SEN. LEAHY: It was a — it was a critical role?

MR. JOYCE: What I’m saying — what it plays a —

SEN. LEAHY: (And was there ?) some undercover work that was — took place in there?

MR. JOYCE: Yes, there was some undercover work.

SEN. LEAHY: Yeah —

MR. JOYCE: What I’m saying is each tool plays a different role, Mr. Chairman. I’m not saying that it is the most important tool —

SEN. LEAHY: Wasn’t the FBI — wasn’t the FBI already aware of the individual in contact with Zazi?

MR. JOYCE: Yes, we were, but we were not aware of that specific telephone number, which NSA provided us. [my emphasis]

So, when pressed, Joyce admitted that Section 215 wasn’t critical to finding Adis Medunjanin, one of Zazi’s conspirators. (And if you read Matt Apuzzo and Adam Goldman’s Enemies Within, you see just how minor a role it played.)

That’s important, because the Administration’s use of Section 215 in the Zazi case was crucially important to the defeat of two efforts to rein in the dragnet in 2009.

Read more →

Working Thread on FISA Order, Opinion

/10 Comments/in /by

Here.

(2) Prohibition on cell site may be new with this primary order.

(2) The redaction in FN 3 suggests there was at least one change made in program.

(3) Note Court claims it didn’t read White Paper. Which means it pretends it doesn’t know that briefings for Congress not as advertised.

(4) inclusion of discovery rules may be new, as would oversight function be.

(5) FISC appears to have no understanding of what 3 hops gives the government. It’s data mining.

(5) The incidents in FN 8 appear to be new (because the 2009 ones were about collection, not dissemination, save the ones in late 2009).

(8) The precedent on bulk collections was not mentioned in either 2006 or 2008 opinions.

(9) The grouping argument is similar to one the govt made in Moalin.

(10) Govt has not invoked presumption (though it wouldn’t need to).

(16) I’m not so surprised that no telephone companies have challenged Section 215 orders. I’m surprised that no company (still!) has challenged a bulk order.

(20) Mention of metadata in first paragraph makes it really likely that the other decision was the Internet metadata.

(20) Note the inclusion of “affiliated persons” at end of page.

(21) Note the reference to the government’s Memorandum of Law, submitted in the first phone dragnet docket. The actual order repeats none of this analysis. Truly, it was one shitty opinion.

Read more →

Did Kerry’s “Impossible” Diplomatic Demand Just Get Met? Update: Now Possible?

/54 Comments/in /by

If you enjoy the detailed analysis that only Marcy Wheeler can bring to complex issues, please donate if you can.

Okay, this is breaking very rapidly and could turn out to be nothing, but it is amazing and would even be hilarious if it weren’t for the huge number of innocent lives that are at stake. As we learn from the New York Times this morning, the UN High Commissioner for Human Rights is making one last push for diplomacy in the face of an Obama administration that is determined to carry out military strikes against Syria:

The appalling suffering in Syria “cries out for international action,” Navi Pillay, the U.N. High Commissioner for Human Rights said on Monday in a speech in Geneva. Employing chemical weapons was “one of the gravest crimes that can be committed” and their use in Syria “seems to be in little doubt,” even if the circumstances and the party responsible remained to be clarified, Ms. Pillay said.

While the United States is calling for a limited punitive strike to punish the Syrian government, Ms. Pillay warned that “a military response or the continued supply of arms risk igniting a regional conflagration, possibly resulting in many more deaths and even more widespread misery.”

Ms. Pillay chastised the international community for being “late, very late” in acting to stop the violence in Syria that has killed more than 100,000 people. “This is no time for powerful states to continue to disagree on the way forward or for geopolitical interests to override the legal and moral obligation to save lives by bringing this conflict to an end,” she said.

In a rational world, one would expect the chief diplomat from the United States to be somewhat chastised by such strong language and to voice a new commitment to finding a peaceful solution to the problem. But this is the Obama administration we are talking about, and so John Kerry instead chose to make a statement that appears to mock calls for diplomacy. He states conditions which Syria could meet in order to avoid an attack but then immediately follows by stating that it would be impossible for Syria to meet those conditions:

When asked by a reporter whether there was anything Assad’s government could do or offer to stop any attack, Kerry said:

“Sure, he could turn over every single bit of his chemical weapons to the international community in the next week – turn it over, all of it without delay and allow the full and total accounting (of it) but he isn’t about to do it and it can’t be done.”

Oh my. That is cold and beyond cynical. But it appears that Syria may well be calling Kerry’s bluff:

Wow. If the twitter account from which this came is real and if the offer is real, Kerry and the rest of the Obama administration will be facing a real conundrum. Kerry’s flip identification of an “impossible” condition which Syria could meet to avoid an attack may well have done the impossible. Stay tuned. Today could be very interesting.

Update: Twitter consensus is developing around the Brahimi twitter account being fake. There are also suggestions the State Department is doing some “walking back” of Kerry’s cynical statement.

Update: And as noted by commenter Erich Kuerschner, the twitter account has now been suspended. Even though the account was fake, it did a wonderful job of pointing out the horrible cynicism of Kerry’s “diplomacy”. What if Syria does offer up its chemical weapons? How is it Kerry’s job to pronounce that such a process is “impossible”?

Yet Another Update: It would appear that Putin appreciates the beauty of calling Kerry’s bluff:

 

And that’s AP (unless they’ve been hacked again…)

Update: New York TImes:

Syria’s foreign minister says his country welcomes Russia’s proposal for it to place its chemical weapons under international control and then dismantle them quickly to avert United States strikes.

With All These Defections, How Can Intelligence Agencies Make Claims about Chain of Command?

/20 Comments/in /by

The French, who have a long history with Syria, offered a somewhat more developed explanation for why they’re so sure that Bashar al-Assad should be held responsible for the August 21 attack even while someone in his Ministry of Defense appears to have been panicked and confused about the attack. (Note: Alan Grayson asked for this intercept to be declassified in today’s hearing, but Chuck Hagel seemed unenthused about that idea.)

Last Wednesday, in the hours after a horrific chemical attack east of Damascus, an official at the Syrian Ministry of Defense exchanged panicked phone calls with a leader of a chemical weapons unit, demanding answers for a nerve agent strike that killed more than 1,000 people.

In their case for war they talked about how tightly controlled Assad’s Chemical Weapons are.

The Syrian chemical programme is centred around the Center of Scientific Studies and Research (CSSR), in charge among others of producing chemical warfare agents. Its Branch 450 is in charge of the filling of chemical ammunitions, as well as the security of chemical sites and stockpiles. Formed exclusively with Alawi officers, this unit is known for its high loyalty to the regime.

Bachar al Assad and some of the most influential members of his clan are the only ones empowered to order the use of chemical weapons. The order is then forwarded to the commanding officers within the competent branches of the CSSR. In parallel, the armed forces HQs receive the order, decide of targeting and of the choice of weapons and toxic agents to use.

While not definitive, it is a slightly more developed version of the argument that the US made.

Syrian President Bashar al-Asad is the ultimate decision maker for the chemical weapons program and members of the program are carefully vetted to ensure security and loyalty. The Syrian Scientific Studies and Research Center (SSRC) – which is subordinate to the Syrian Ministry of Defense – manages Syria’s chemical weapons program.

Nevertheless, in the face of some questions about what the men in the CW unit were doing, both governments have offered simply an argument about how reliable the CW staffers are in this unit.

But that comes amidst what John Kerry claims is a big wave of defections. The most notable is that of General Habib Ali, Assad’s former Minister of Defense and like him an Alawite.

“Ali Habib has managed to escape from the grip of the regime and he is now in Turkey, but this does not mean that he has joined the opposition. I was told this by a Western diplomatic official,” Kamal al-Labwani said from Paris.

Read more →

Working Thread: Section 215 Chronologies

/1 Comment/in /by

This post consists of two things. First, a comparison of the 2009 notice and the 2011 one on the PATRIOT Act dragnet programs (as well as the one paragraph from the White Paper that largely replicates their compliance language).

Then, it includes the items noted on this Vaughn Index submitted in the ACLU suit for Section 215 information, along with other relevant known dates.

I’m working on some related posts, but needed to post this to refer back to. Read more →

The Biggest Math Organization in the World Has a Simple Arithmetic Problem

/7 Comments/in , /by

In this post, I’m going to examine a claim made in the May 3, 2012 audit report of NSA violations. Through the magic of simple arithmetic, I’m going to show that the report misleads readers about why the number of incidents rose in the first quarter of 2012, wrongly suggesting it was an unpreventable seasonal problem, rather than pointing to the human error and fault that really explained the increase.

On page two, the report shows how many Signals Intelligence Directorate-reported incidents there are across both kinds of authorities: EO 12333 (strictly foreign) and FISA (involving US persons).

Screen shot 2013-08-16 at 10.30.37 AM

As the report acknowledges, there was an 11% increase in incidents for both kinds of authority.

But don’t worry, the report says, the increase is due to Chinese New Year, sort of.

The increase in incidents reported for 1QCY12 was due to an increase in the number of reported Global System for Mobile Communications (GSM) roamer1 incidents, which may be attributed to an increase in Chinese travel to visit friends and family for the Chinese Lunar New Year holiday.

1Roaming incidents occur when a selector associated with a valid foreign target becomes active in the U.S.

On the following page, a section provides further explanation on the roamer problem.

The largest number of incidents in the System Limitations category account for roamers where there was no previous indications of the planned travel. These incidents are largely unpreventable. Consistent discovery through the Visitor Location Register (VLR) occurs every quarter and provides analysts with timely information to place selectors into candidate status or detask. Analysis identified that these incidents could be reduced if analysts removed/detasked selectors more quickly upon learning that the status of the selector had changed and more regularly monitored target activity. This analysis indicates that continued research on ways to exploit new technologies and researching the various aspects of personal communications systems to include GSM, are an important step for NSA analysts to track the travel of valid foreign targets.

On page 6, we get a more comprehensible explanation.

Roamers: Roaming incidents occur when valid foreign target selector(s) are active in the U.S. Roamer incidents continue to constitute the larges category of collection incidents across E.O. 12333 and FAA authorities. Roamer incidents are largely unpreventable, even with good target awareness and traffic review, since target travel activities are often unannounced and not easily predicted.

In other words, the roamer problem stems from the fact that when valid foreign targets travel to the US with their GSM phones, analysts don’t know that and therefore don’t act accordingly. I think (though am not positive) the presence of the target in the US would shift a 12333 intercept into a FISA one (we’d be tracking calls to foreigners with one end in the US), and a FISA Amendments Act target into an illegal one (we’d be tracking calls with both ends in the US, one potentially involving a US person). Since this involves primarily valid foreign targets, it is not the most urgent problem identified in the report.

And, the NSA claims, it is largely unavoidable, so readers of this report should expect the relatively large numbers of roamer problems to continue.

Up to this point — far beyond where most readers will be paying attention, I’d imagine — we might believe (because the report said so explicitly) that the 11% increase in incidents stems from a problem involving valid foreign targets and reflecting an unavoidable technical problem.

It’s only when you get to page 5 and 6 that this narrative falls apart. Here’s how many roamer incidents occurred under EO 12333 for the four quarters reported.

Screen shot 2013-08-16 at 10.52.25 AM

 

And here’s how many roamer incidents occurred under FISA for the four quarters presented.

Screen shot 2013-08-16 at 10.53.06 AM

Adding the roamer incidents for each kind of authority together, we discover the total roaming incidents, across both authorities, look like this in the last quarter of 2011 and first quarter of 2012:

4QCY11: 582 + 87 = 669

1QCY12: 491 + 95 = 586

In fact, the roaming problem doesn’t explain the 11% overall increase in incidents at all, because the number of roaming incidents under EO12333 actually went down 19%, meaning roaming incidents across the two authorities went down 14%.

Read more →

The Stenography Dance between Israel and the US

/1 Comment/in /by

I’ve been meaning to comment on this story from Bill Gertz from last week. After reporting that the Israelis bitched about US reports of the Israeli strike on Russian made missiles shipped to Syria,

Israeli government officials voiced anger at U.S. press leaks traced to the Pentagon following the July 5 Israeli missile attack on the Syrian port of Latakia that destroyed a shipment of Russian-made anti-ship missiles, according to U.S. officials.
Senior Pentagon officials, including Deputy Secretary of Defense Ashton Carter who is currently visiting Israel, discussed the leaks during meetings with Israeli officials this week. The Israelis argued in private meetings and other exchanges that the disclosures could lead to Syrian counterattacks against Israel and should have been coordinated first with the Israeli government. [my emphasis]

It catalogs multiple people — both American and Israeli — talking about the intent of the gag and concerns about secrecy.

A U.S. official said signs of Israeli anger over the Latakia raid disclosures appeared in several Israel press outlets. One Israeli official was described as “furious” over the leak because the Pentagon did not coordinate its release of information first with Israel.

Other Israeli officials were quoted as saying that in the aftermath of the Yakhont missile strikes that ties between Israel and Syria had reached a new peak and that there are worries that tying Israel to the attack will prompt Syrian leader Bashar al-Assad to retaliate soon or against a future Israeli attack. [my emphasis]

As far as I know, no one besides Gertz has reported on Israeli anger, in spite of the fact that the reports were published by notorious DOD mouthpieces. There’s Barbara Starr,

A series of explosions on July 5 at a critical Syrian port was the result of airstrikes by Israeli warplanes, according to multiple U.S. officials.

Regional media widely reported the predawn explosions at Latakia, but no one had officially claimed responsibility.

Three U.S. officials told CNN the target of the airstrikes were Russian-made Yakhont anti-ship missiles that Israel believes posed a threat to its naval forces.

And Michael Gordon,

Israel carried out an air attack in Syria this month that targeted advanced antiship cruise missiles sold to the Syria government by Russia, American officials said Saturday.

The officials, who declined to be identified because they were discussing intelligence reports, said the attack occurred July 5 near Latakia, Syria’s principal port city. The target was a type of missile called the Yakhont, they said.

Mind you, the Israelis don’t claim to be pissed that the leaks occurred (in spite of claims that revealing it publicly will make it more likely someone — I’m not sure precisely who — will attack Israel. Just that they (allegedly) occurred without coordinating with the Israelis.

Compare this treatment with the efforts to mandate investigations of leaks last year that made it harder to gin up war against Iran.

And with reports that retired General Hoss Cartwright is being investigated for repeating stories about Israel’s purported role in letting StuxNet escape Iranian nuke facilities (a leak which, it should be said, added to an earlier Michael Gordon co-byline).

Funny. Just a few weeks before the Latakia leaks to noted stenographers, leaking about Israel could get even a top General investigated.

But when stenographers report similar stories, crickets.

caught up

/1 Comment/in , , /by

Congratulations to the AP, which has caught up to the reporting I did a month ago on the way SOCOM purged their own systems of Osama bin Laden photos (and, apparently, records) and moved them to the CIA.

But it appears that this shell game involved more than just moving all these records to CIA. It appears CIA had to retroactively classify at least the photographs.

As you recall, Judicial Watch (as well as a bunch of other entities) had FOIAed any pictures of the raid. It its motion for summary judgment, JW made several complaints about the government’s FOIA response:

  • The search, particularly at DOD, was inadequate.
  • The government declarations didn’t adequately specify what was included in the pictures (I suspect this was done to hide trophy pictures not shown to Congress or, possibly, even the President).
  • The government declarations don’t prove that all the photos could cause exceptionally grave harm.
  • The description of the classification process was inadequate.

It is the last of these that is most interesting, given the apparent fact that DOD transfered all its photos to CIA (plus my suspicion that a lot of these are trophy photos, not official operational photos).

First, Defendants fail to identify who classified the records. Director Bennett testifies as to who generally has the authority to classify information as TOP SCERET and who generally has the authority to delegate such authority. Bennett Decl. at ¶¶ 14-15. In addition, Director Bennett states that the “Director of the CIA has delegated original TOP SECRET classification authority to me. As an original classification authority, I am authorized to conduct classification reviews and to make original classification decisions.” Id. at ¶ 18. Yet, Director Bennett does not testify that he personally classified the records. Nor does he state that any other authorized official actually classified the records.  If an individual without the proper authority classified the records, Defendants have not complied with the procedural requirements of EO 13526.

Second, Director Bennett does not specifically testify as to when the 52 records were classified. Director Bennett only states that as of September 26, 2011, the 52 records are currently and properly classified. Read more →

Remember How Angry Russia Is about Viktor Bout

/3 Comments/in /by

As we await the next installment from Edward Snowden’s White Bronco chase around the globe, it’s worth remembering our attempt to overthrow Bashar al-Assad and the Boston Marathon attack (and subsequent whitewashing about how closely Russia is cooperating) are not the only things underlying US-Russian relations.

Russia is still very angry about our assertion of jurisdiction to entrap Viktor Bout for selling arms to FARC.

Indeed, Preet Bharara is among the US officials that Russia sanctioned in retaliation for the Magnitsky list, along with such leading lights of American law as John Yoo and David Addington.

Jeralyn lays out Russian frustrations over our manufactured jurisdiction with two of their citizens here.

Bout’s story (background here)is even worse. He was the victim of a DEAsting in Thailand. The U.S. fought tooth and nail to extradite him and lost. The U.S. appealed (and likely pulled some strings, if the Wikileaks cables are any indication, and lo and behold, The higher court in Thailand approved his extradition. He spent a miserable two years at MCC in New York, was convicted and sentenced to 35 years which he is serving at theUSP in Marion, IL., one of our SuperMax prisons. The U.S. claims he’s a “Lord of War” and seller of arms. He never sold arms here. What’s it our business? Why have a prisoner transfer treaty if you aren’t going to use it? Did anyone ask the American taxpayers if they want to pay $40,000 a year times 30 years to warehouse Bout in a high security prison when Russia’s willing to take him?

You don’t have to like what Bout did (which is not much more destabilizing than what Erik Prince has done) to understand that when the US claims jurisdiction over anyone in the world, even if they do nothing to harm the US directly, is going to piss off other countries.

Eventually, those countries may have an opportunity to express their frustration about it.