The Perils of Giving John Brennan Unchecked Power

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Before you read this post, go read this Glenn Greenwald one highlighting an Eli Lake interview with John Brennan. Lake reports John Brennan describing “dozens” of Americans against whom the US will bring the full brunt of its power.

“There are, in my mind, dozens of U.S. persons who are in different parts of the world, and they are very concerning to us,” said John O. Brennan, deputy White House national security adviser for homeland security and counterterrorism.

[snip]

“If a person is a U.S. citizen, and he is on the battlefield in Afghanistan or Iraq trying to attack our troops, he will face the full brunt of the U.S. military response,” Mr. Brennan said. “If an American person or citizen is in a Yemen or in a Pakistan or in Somalia or another place, and they are trying to carry out attacks against U.S. interests, they also will face the full brunt of a U.S. response. And it can take many forms.”

Glenn points out the number (we previously knew only that three Americans were targeted), the global scope of this, and the continuity Brennan claims with Bush’s counter-terrorism.

But I’d like to focus on John Brennan himself.

Brennan asserts that the Obama Administration is largely building on the Bush Administration counterterrorism policy.

“There has been a lot of continuity of effort here from the previous administration to this one,” he said. “There are some important distinctions, but sometimes there is too much made of those distinctions. We are building upon some of the good foundational work that has been done.”

Glenn notes that this assertion is all the more notable since Brennan was, after all, a top Bush counterterrorism official. Brennan is saying there’s continuity between what he did under Bush and what he’s doing now.

So let’s recall the reason John Brennan is even able to rejoin government after having worked in the Bush Administration and then profited in the Intelligence Industrial Complex for a few years: retroactive immunity.

Brennan was in charge of picking the Americans George Bush would illegally wiretap–including during the period after March 11, 2004, when Bush reauthorized the illegal wiretap program in spite of the fact that DOJ had told him there was no legal basis for it. Brennan was directly involved in illegally wiretapping Americans (though he likely did not know that the entire program was even more illegal at that point than previously). And lo and behold, about the time that Brennan assumed a significant role on candidate Obama’s team, Obama flip-flopped on retroactive immunity, pretty much ensuring that Bush’s–and Brennan’s–would never receive real scrutiny.

Would John Brennan be Obama’s Homeland Security Advisor right now if Americans knew the full extent of his role in targeting Americans for illegal wiretapping?

This is the guy, then, boasting that we’ve got not three, but dozens, of Americans against whom we intend to bring the full brunt of the US military. A guy who was previously involved (possibly unknowingly) in wiretapping Americans without the requisite legal review.

Read more →

Glenn Fine to Investigate Government Use of PATRIOT Powers Again

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Main Justice reports that Pat Leahy and DOJ’s Inspector General Glenn Fine have been chatting about further IG review of the FBI’s use of the several PATRIOT provisions that were contentious issues in last years attempt to reauthorize the PATRIOT Act. This means that Fine is going to do what the legislation would have mandated–conduct further reviews of these authorities–on his own. But I’m also interested in the scope Fine lays out for his review in his response to Leahy.

We intend to initiate another review examining the FBI’s use of NSLs and Section 215 orders for business records. Among other issues, our review will assess the FBI’s progress in responding to the OIG’s recommendations in the prior reports. In addition, we intend to examine the number of NSLs issued by the FBI from 2007 through 2009, and we will closely examine the automated system to generate and track NSLs that the FBI implemented to address the deficiencies identified in the OIG reports.

In addition, our review will cover the FBI’s use of Section 215 orders for business records. It will examine the number of Section 215 applications filed from 2007 through 2009, how the FBI is using the tool today, and describe any reported improper or illegal uses of the authority. Our review will also examine the progress the FBI has made in addressing recommendations contained our prior reports that the FBI draft and implement minimization procedures specifically for information collected under Section 215 authority.

We also intend to conduct a programmatic review of the FBI’s use of its pen register and trap and trace authority under the FISA. That part of the review will examine issues such as how the FBI uses the authority to collect information, what the FBI does with the information it collects, and whether there have been any improper or illegal uses of the authority either reported by the FBI or identified by the OIG.

I find the scope interesting, first of all, because it would put all three of these provisions–NSLs, 215, pen registers–into one report. Given the way they’ve been used together in the past (Section 215 was used to get contact data more expansive than available under pen registers, for example), it will be interesting to see how Fine understands these provisions to work together. I could be overreading, but Fine seems to have a sense that the “what the FBI does with the information” might be interesting.

I’m also interested in his specific promise to investigation his recommendation that DOJ develop minimization procedures. I would bet money DOJ has done nothing to respond to that recommendation. If so, what we may get in the report will be a (probably redacted) discussion of how DOJ has collected a bunch of information from otherwise innocent people and kept it. Remember the probable use of Section 215 in the Najibullah Zazi case (focused on some associates who also bought acetone)? Those people appear never to have been charged, suggesting the possibility that some Muslims who bought beauty supplies remain in a DOJ database even though no connection with Zazi’s plot has been found. And then consider the suggestion that FBI is using Section 215 to collect more than just “records,” but also much more intrusive medical records (and possibly DNA). That might create some database indeed, full of information that was not minimized.

So it sounds like it might result in an interesting report.

House Intelligence Staffer Tried to Intervene on Illegal Wiretap Program

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Scott Shane and Eric Lichtblau tell a sort of weird story of how a House Intelligence Committee staffer, Diane Roark, tried to reach out to William Rehnquist to get him to review Dick Cheney’s illegal wiretapping program.

Within months of the beginning of the eavesdropping program in October 2001, a staff member of the House Intelligence Committee, alerted to the possibility of illegal spying by N.S.A. insiders and hoping to prompt a high-level legal review, wrote to Chief Justice Rehnquist asking for a meeting, according to several people familiar with the episode.

The Congressional staff member, Diane S. Roark, routed the letter through the chief justice’s daughter, Janet Rehnquist, then the inspector general of the Department of Health and Human Services; Ms. Rehnquist was a high school acquaintance of one of Ms. Roark’s N.S.A. contacts.

There was no response, and it is not known whether the letter was seen by the chief justice or prompted him to make inquiries.

What’s weird about the story, first of all, is the method of approach. Are you telling me there are Congressional staffers who think Rehnquist could have legally reviewed this program in response to a request sent via his daughter (though it sounds like something Arlen “no longer Haggis or Scrapple” Specter might try)?

But then there’s a detail that Shane and Lichtblau don’t mention: Roark left HPSCI just after this attempt to have Rehnquist review the illegal wiretap program, ostensibly retiring. Read more →

Chamber of Commerce Flip-Flops on Retroactive Legislation

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As you’ve likely heard, the Chamber of Commerce has officially endorsed government welfare to limit corporate risk. (Again.)

The head of the United States Chamber of Commerce said Friday that his group is not yet lobbying against legislative efforts to raise BP’s liability cap, viewing the issue as not yet “ripe.”

He signaled, however, that his group would figure out a way to get the government to share in the cost of cleaning up the Gulf Coast.

“It is generally not the practice of this country to change the laws after the game,” said Tom Donohue, the president of the U.S. Chamber of Commerce. “. . . Everybody is going to contribute to this clean up. We are all going to have to do it.  We are going to have to get the money from the government and from the companies and we will figure out a way to do that.” [my emphasis]

And like an obedient orange puppy, John Boehner has embraced the Chamber’s call for government welfare for corporations.

I do agree with Steve Benen that the Republican (and Mary Landrieu) embrace of big oil ahead of taxpayers ought to be a game changer.

But I’d also like to note how, um, opportunistic the Chamber is with its insistence that “it is generally not the practice of this country to change the laws after the game.” This is what the Chamber wrote to pressure the House to support a FISA amendment that invalidated a law holding telecoms liable for illegal wiretapping of private citizens.

The U.S. Chamber of Commerce, the world’s largest business federation representing more than three million businesses and organizations of every size, sector, and region, strongly supports S. 2248, the “FISA Amendments Act of 2007,” as passed by the Senate on February 12, 2008. The Chamber believes that this bill, in its current form, provides necessary, appropriate, and targeted relief commensurate with the threat to national security that arose in the aftermath of the September 11 attacks.

The Chamber represents companies across various industries which own or operate vital components of the nation’s critical physical, virtual, and economic infrastructures. The federal government continually depends upon such industries for cooperation and assistance in national security matters, including homeland security programs and activities. The government also turns to these companies in times of crisis, when the speed, agility, and creativity of the private sector can be critical to averting a terrorist attack.

Therefore, the Chamber urges the House to consider S. 2248 and pass this bipartisan compromise legislation. The Chamber firmly believes that the immunity provisions in S. 2248 are imperative to preserving the self-sustaining “public-private partnership” that both Congress and the Executive Branch have sought to protect the United States in the post-September 11 world. [my emphasis]

Of course, the Chamber is being utterly consistent on one point. That’s in lobbying to make sure big corporations never pay for the negative consequences–be they legal or financial–of their actions.

Prediction: Media Will Be Angrier About AT&T Breach than Illegal Wiretapping

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Anyone want to bet that Rahm Emanuel will be more incensed that AT&T made his Gmail address vulnerable than about the illegal wiretapping the telecom did for Dick Cheney?

Apple has suffered another embarrassment. A security breach has exposed iPad owners including dozens of CEOs, military officials, and top politicians. They—and every other buyer of the wireless-enabled tablet—could be vulnerable to spam marketing and malicious hacking.

The breach, which comes just weeks after an Apple employee lost an iPhone prototype in a bar, exposed the most exclusive email list on the planet, a collection of early-adopter iPad 3G subscribers that includes thousands of A-listers in finance, politics and media, from New York Times Co. CEO Janet Robinson to Diane Sawyer of ABC News to film mogul Harvey Weinstein to Mayor Michael Bloomberg. It even appears that White House Chief of Staff Rahm Emanuel’s information was compromised.

And you think the generals and NYT’s overpaid CEO are gonna be a little miffed by the possibility that their data was compromised?

Thing is, AT&T is a shitty company. They’re a shitty company when they don’t take precautions to protect customer data. And they’re a shitty company when they agree to continue a lucrative wiretap program without even demanding proof that the Attorney General approved the program.

I just hope this stupid data compromise makes the MOTUs with their 3G iPads think a little bit about all the ways AT&T sucks.

Once Again, Obama Empowers State Department to Lecture Others

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Almost a year ago, Obama celebrated the anniversary of the Convention against Torture by promising to have the Department of State look at other countries’ use of torture.

My administration is committed to taking concrete actions against torture and to address the needs of its victims. On my third day in office, I issued an executive order that prohibits torture by the United States. My budget request for fiscal year 2010 includes continued support for international and domestic groups working to rehabilitate torture victims.

The United States will continue to cooperate with governments and civil society organizations throughout the international community in the fight to end torture. To this end, I have requested today that the Department of State solicit information from all of our diplomatic missions around the world about effective policies and programs for stopping torture and assisting its victims so that we and our civil society partners can learn from what others have done. I applaud the courage, compassion and commitment of the many people and organizations doing this vitally important work. [my emphasis]

And while the specific requirements of the Daniel Pearl Freedom of the Press Act mandate action from the Department of State, it still feels pretty hollow when, less than two weeks after DOD banned four reporters from Gitmo for printing information that’s in the public domain, Obama is again directing the State Department to lecture others about issues the US has problems with itself.

Here’s what transpired when Obama signed the Act:

THE PRESIDENT:  Well, hello, everybody.  I am very proud to be able to sign the Daniel Pearl Freedom of the Press Act, a piece of legislation that sends a strong signal about our core values when it comes to the freedom of the press.All around the world there are enormously courageous journalists and bloggers who, at great risk to themselves, are trying to shine a light on the critical issues that the people of their country face; who are the frontlines against tyranny and oppression.  And obviously the loss of Daniel Pearl was one of those moments that captured the world’s imagination because it reminded us of how valuable a free press is, and it reminded us that there are those who would go to any length in order to silence journalists around the world.

What this act does is it sends a strong message from the United States government and from the State Department that we are paying attention to how other governments are operating when it comes to the press.  It has the State Department each year chronicling how press freedom is operating as one component of our human rights assessment, but it also looks at countries that are — governments that are specifically condoning or facilitating this kind of press repression, singles them out and subjects them to the gaze of world opinion in ways that I think are extraordinarily important.

Oftentimes without this kind of attention, countries and governments feel that they can operate against the press with impunity.  And we want to send a message that they can’t.

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The Flaming Hypocrisy Of US Terrorist Designation

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[Note Update Below]

On the fateful September 11, 15 men from Saudi Arabia, along with four others, perpetrated the attacks on the World Trade Center in New York. Since that time, the United States has invaded Afghanistan and Iraq in response with hundreds of thousands dead in the process. Saudi Arabia was not only never considered as an enemy, its citizens were spirited out of the country while US citizens were grounded.

Also since then a list longer than you can measure of countries and/or entities have been designated as global terrorists by the United States government. One of those so designated is al-Haramain of Oregon, who happens to be the root plaintiff in the critical litigation – pretty much the sole remaining substantial hope of challenging the incredible, illegal and unconstitutional executive power grabs by the Bush/Cheney Administration now hypocritically supported and adopted by the Obama Administration.

In spite of the fact there has never been any substantive link to terrorism, much less September 11, on the part of al-Haramain Oregon, the US government has steadfastly maintained it on the designated list. Now maybe al-Harmain was, and maybe it was not, even remotely involved in terrorism in any provable way; however the one irreducible fact is the US has never, despite repeated challenges, anted up any convincing factual support on the record for the allegation.

In fact, while al-Haramain Oregon is defunct and no longer exists in any form, the US has stood mute and even gone so far as to allow an US Federal Court to declare their wiretapping of al-Haramain’s attorneys, nearly a decade ago, patently illegal. All the while still maintaining the long defunct and non-existent charity on the specially designated terrorist list and so cocksure and adamant about it that the government has stated they cannot allow any judgment to be entered, much less settle, the al-Harmain litigation because they could not possibly think of a designated terrorist organization receiving one red cent from the US government.

Such is the seriousness of actions that could lead an entity to be designated a terrorist by the United States government. Well, except for the Saudis of course. And now, apparently, the Pakistani Taliban. From Mike Isikoff at Newsweek Declassified:

In light of evidence that the group known as the Pakistani Taliban was behind the attempted May 1 Times Square bombing, the Obama administration is “actively considering” designating it as a ”foreign terrorist organization” in the next few weeks —a move that would allow the U.S. government to freeze any assets belonging to the group and make it a federal crime Read more →

EU Won’t Hand Over Their Data

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Last year and in February, we watched as the EU balked at US demands for data-sharing under the SWIFT program. The Belgian cooperative in charge of the international money transfer database moved its servers to the EU, but the US still wanted the same access it had had when the servers were in the US. The US had tried to push through a last-minute deal before EU Parliament changed hands last year, but the parliament rejected that deal. So now the EU is trying to decide what kind of data-sharing they’ll have with the US.

EFF links to a report from this week’s EU debate on SWIFT. The result? The Europeans passed a resolution stating that they’re not going to hand over to the US bulk downloads of data, and ultimately any data shared with the US should be extracted on EU soil, and should include reciprocity with the US.

On the issue of bank data transfers, Parliament argues in a resolution adopted by show of hands, that bulk data transfers infringe EU legislation.  It urges the Council and Commission to “address this issue properly in the negotiations”.  In addition, the new agreement should include “strict implementation and supervision safeguards, monitored by an appropriate EU-appointed authority” on the day-to-day extraction of and use by the US authorities of all such data. The maximum storage period must not exceed five years and the data may not be disclosed to third countries.

Any new agreement should be limited in duration and pave the way for arrangements to enable requested data to be extracted on European soil, say MEPs. They believe that “the option offering the highest level of guarantees” would be to allow for the extraction of data to take place on EU soil, in EU or joint EU-US facilities.  In the medium term, an EU judicial authority should oversee the extraction of data in the EU. Meanwhile, select EU personnel should take part in the oversight of the extraction process in the USA.

Reciprocity would require the Americans to allow EU authorities to obtain and use data stored in servers in the US.

Parliament wants access to any documents that demonstrate the need for the scheme.  It also wants to know whether the envisaged agreement will guarantee the same rights to European citizens as to Americans in the event of any abuse of the data: the rights guaranteed under the US Privacy Act can be invoked only by citizens and permanent residents of the United States.

The Europeans might yet put some limits on the US efforts to totally eliminate privacy in the name of counter-terrorism.

The Brits Refuse Secret Trials Even as Obama Doubles Down

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As bmaz reported last night, the Obama Administration has refused to accept Vaughn Walker’s ruling in al-Haramain–in fairly spectacular fashion (and yes, bmaz, Mary, MadDog and others did tell me this was going to happen).

Meanwhile, across the pond, the folks from whom we got our legal system are refusing the very concept that the government could avoid its legal liability by claiming its crimes were all a secret. The British Court of Appeals refused the British government’s attempt to respond to a suit from Binyam Mohamed and other former Gitmo detainees by claiming only the government and the judge could see the evidence–effectively the stance the Obama Administration has now doubled down on.

British residents held at Guantánamo Bay could be offered millions of pounds in compensation for wrongful imprisonment and abuse after the court of appeal today dismissed an attempt by MI5 and MI6 to suppress evidence of alleged complicity in torture.

The judges ruled that the unprecedented legal move by Britain’s security and intelligence agencies – which the attorney general and senior Whitehall officials backed – to suppress evidence in a civil trial undermined the principles of common law and open justice.

[snip]

In the appeal court ruling, Lord Neuberger, master of the rolls, Lord Justice Maurice Kay and Lord Justice Sullivan said that accepting the argument of the security and intelligence agencies would amount to “undermining one of [the common law’s] most fundamental principles”. One of those principles was that “trials should be conducted in public, and the judgments should be given in public”.

The judges gave the attorney general, MI5 and MI6 28 days to appeal to the supreme court. But government officials have told the Guardian that the former detainees are now likely to be offered compensation of millions of pounds in out-of-court settlements as that would be preferable to having embarrassing evidence of the security and intelligence agencies’ complicity in abuse being exposed.

In other words, if the government refuses to share evidence of its own involvement in the torture of British residents and citizens, then they are going to have to settle with those men, rather than just dismissing the suit altogether by saying the plaintiffs can’t see the most crucial evidence in question. Had the government accepted Walker’s judgment in al-Haramain, they would have paid millions, but would have managed to keep evidence of their precious illegal wiretap program (a program both Obama and Holder have said was illegal) secret. (The Times has more, including some excellent quotes from the plaintiffs’ lawyer.)

How quaint the old country looks from this distance!

Government Remains Belligerent in al-Haramain; Will Fight On

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Yes, I know, it was hard to see this coming. As Condi Rice would say, “who could have expected”? Nevertheless, here it is. As you may recall, back at the end of March, Judge Vaughn Walker entered his somewhat earth shattering order granting summary judgment to Plaintiffs al-Haramain (see: here and here) and on April 16 Plaintiffs lodged their proposed form of judgment (see also: here).

Well, last Friday the government, by and through their ubiquitous attorneys the Department of Justice, filed their response to Plaintiffs’ proposed judgment. To put it mildly, the government is not consenting to the entry of judgment and is not going quietly into the night. The government did not just object to Plaintiffs’ judgment, they have lobbed another giant thumb in your eye belligerent pile of repetitive argument on Judge Walker:

Although the Court has made a finding of liability as to plaintiffs’ FISA claim (with which the Defendants respectfully disagrees), plaintiffs cannot merely rely on that determination at this stage. Rather, the entry of damages and other equitable relief is a separate matter, and plaintiffs have failed to demonstrate that there is any basis for the Court to award them the amount of liquidated damages they seek, punitive damages, or the other forms of relief set forth in plaintiffs’ proposed judgment.

For those not familiar with reading between the double spaced lines of legal pleading, the government is continuing to object to everything up to, and including, the Plaintiffs’ right to exist as plaintiffs in the first place. They will not consent to judgment; they will not agree to pay. They are not going to stop at go; they are not going Read more →