John Pistole Wants Us to Be Afraid of His Shadow

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I’m working on a longer post on John Pistole, the head of Transportation Security Administration who ordered the TSA to touch your junk.

But in the meantime I wanted to point out something appalling about his recent testimony to the Senate Commerce Committee. In it, he says the following to justify expanding the use of air marshal patrols at mass transit locations.

Another recent case highlights the importance of mass transit security. On October 27, the Federal Bureau of Investigation (FBI) arrested a Pakistan-born naturalized U.S. citizen for attempting to assist others whom he believed to be members of al Qaida in planning multiple bombings at Metrorail stations in the Washington, D.C., area. During a sting operation, Farooque Ahmed allegedly conducted surveillance of the Arlington National Cemetery, Courthouse, and Pentagon City Metro stations, indicated that he would travel overseas for jihad, and agreed to donate $10,000 to terrorist causes. A federal grand jury in Alexandria, Virginia, returned a three-count indictment against Ahmed, charging him with attempting to provide material support to a designated terrorist organization, collecting information to assist in planning a terrorist attack on a transit facility, and attempting to provide material support to help carry out multiple bombings to cause mass casualties at D.C.-area Metrorail stations.

While the public was never in danger, Ahmed’s intentions provide a reminder of the terrorist attacks on other mass transit systems: Madrid in March 2004, London in July 2005, and Moscow earlier this year. Our ability to protect mass transit and other surface transportation venues from evolving threats of terrorism requires us to explore ways to improve the partnerships between TSA and state, local, tribal, and territorial law enforcement, and other mass transit stakeholders. These partnerships include measures such as Visible Intermodal Prevention and Response (VIPR) teams we have put in place with the support of the Congress.

Pistole suggests we need to be worried about mass transit attacks because Ahmed Farooque was arrested for planning what he thought was an al Qaeda attack on the DC area Metro.

But of course–as Pistole concedes–there was never an attack. Instead, there was an FBI sting, set up back when Pistole was still at the FBI. We have zero indication that Farooque would have targeted the Metro on his own, and even less that that’s what al Qaeda is currently targeting. Nevertheless, Pistole chooses to point to it–a planned attack entirely of the FBI’s own making–as a reminder of the threat to mass transit.

Now I’m not suggesting that our subway and rail systems aren’t exposed to attack. Indeed, that’s part of the reason why the “gate rape” to get on airplanes is so absurd, given how unprotected rail transport is by comparison. (Though a smart terrorist would probably choose another kind of venue entirely–like a football game or Wal-Mart on Black Friday–for an attack.)

But I am suggesting it is absolutely inappropriate for Pistole to point to the FBI’s own–his own–sting as evidence that we need to increase domestic surveillance. Next thing you know, the FBI will stage a sting involving Disney World so it can justify strip-searching children before they see Mickey.

Update: Pistole is out with a new statement suggesting he may back down.

We welcome feedback and comments on the screening procedures from the traveling public, and we will work to make them as minimally invasive as possible while still providing the security that the American people want and deserve. We are constantly evaluating and adapting our security measures, and as we have said from the beginning, we are seeking to strike the right balance between privacy and security.   In all such security programs, especially those that are applied nation-wide, there is a continual process of refinement and adjustment to ensure that best practices are applied and that feedback and comment from the traveling public is taken into account. This has always been viewed as an evolving program that will be adapted as conditions warrant, and we greatly appreciate the cooperation and understanding of the American people.

We cannot forget that less than one year ago a suicide bomber with explosives in his underwear tried to bring down a plane over Detroit. The terrorists allegedly behind the thwarted cargo attempt last month are out there bragging about how they will strike again.

We all wish we lived in a world where security procedures at airports weren’t necessary but that just isn’t the case. [my emphasis]

But his logic still amounts to “we need to feel up granny to try to find explosives worn by a terrorist entering the US from a place where they don’t feel up granny and because terrorists threaten to use the still-unsecured package shipping system.” That is, “because we’re not prepared to get the real terrorists’ flying or sending packages, we have to feel up granny.”

House Committee on Homeland Security Expressed Concerns about “Gate Rape” on September 22

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Chairman of the House Homeland Security Committee Bennie Thompson sent Transportation Security Administration Director John Pistole a letter on Friday expressing concern that the TSA did not review privacy and civil liberty concerns before implementing the new “gate rape” procedures at airports. The letter demands additional information on the pat-downs and calls on Pistole to reconsider them.

But most troubling, it reveals that at a member briefing on the new protocol conducted on September 22, the Committee expressed concern about the pat-downs.

As you know, on September 22, 2010, the Committee on Homeland Security held a Member briefing on a pilot that TSA was conducting at Boston Logan International Airport and Las Vegas McCarran International Airport to evaluate enhanced passenger screening protocols. At that time, Members viewed a demonstration of the protocols and expressed concern about their intrusiveness as well as about the risk of inconsistent nationwide implementation and urged TSA to work to educate the traveling public on the need for these reforms. Subsequently, TSA, over a two month period, began implementing these new protocols at our Nation’s airports.

While some of this appears to be a belated attempt to raise privacy issues about the “gate rape,” Thompson rightly points out the Administration’s failures to fulfill privacy and civil liberties requirements.

In the absence of an Executive branch level Privacy and Civil Liberties Oversight Board that would evaluate decisions such as this, it was crucial that the Department of Homeland Security’s Privacy Officer and Office for Civil Rights and Civil Liberties thoroughly evaluate and publish written assessments on how this decision affects the privacy and civil rights of the traveling public. To date, the Department has not published either a Privacy Impact Assessment (PIA) nor a Civil Liberties Impact Assessment (CLIA) on the enhanced pat down procedures. Without a published PIA or CLIA, we cannot ascertain the extent to which TSA has considered how these procedures should be implemented with respect to certain populations such as children, people with disabilities, and the elderly. By not issuing these assessments, the traveling public has no assurance that these procedures have been thoroughly evaluated for constitutionality.

Now, Thompson has been successful in the past at forestalling abusive surveillance by raising precisely these kinds of privacy issues, notably when he prevented Michael Chertoff from implementing a satellite surveillance program in the US. But that was when the Democrats had a majority in the House. In just weeks, Thompson will lose his gavel and Peter King–who used to materially support terrorists in Ireland but now loves to fearmonger on terror–will take over.

Which means Pistole and the Obama Administration will probably just blow off this request for some proof that gate rape has passed constitutional review.

Sign the petition demanding Congress investigate the TSA’s porno scanners, aggressive groping, and abuses of power.

Crist’s Morrison Pardon: 21st Century Fox In A Lizard King’s Henhouse

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Hey, being pretty much a sentient life long Doors aficionado, I am all in with pardoning Jim Morrison, which there has been a flurry of scuttlebutt emanating, cool and slow, with a backbeat narrow and hard to master, out of the instant swamps of Florida, regarding.

Oh, and when I heard the subject brought up by the patently unhip, plodding Blue Dog, holier than thou, I’m a better Democrat than you, scold Larry O’ Donnell on his craptastic bloviathon MSNBC show, that was just too fucking much. The backdoor rumor is Charlie Crist, who may or may not have eaten more chicken that a man has eve seen, is pondering giving the Big Scooter Libby Get Out Of Jail Free card to the Most Right Reverend Snake King Jim Morrison.

Outstanding. And long over due. Because if some fucking little germ boy, bear cage child threatening, functionally traitorous subservient to Cheney blank like I. Lewis “Scooter” Libby can get a walk from a complicit President of the United States in order to mask apparent criminal behavior, then why not a posthumous hall pass for James Douglas Morrison? Seriously.

If you are comparing and contrasting facts and circumstances, one was an entertainer who may or may not have, for a fleeting moment, exposed himself in 1969 to a Miami audience at the end of a Doors concert that truly could not only have cared less, but were bummed they had not done so earlier. The other, Cheney’s toy Scooter, conspired to expose and out a classified top CIA clandestine agent working on the most critical issue of the day, the existence of nuclear and/or weapons of mass destruction in Iraq and/or Iran. You know, the fraudulent reason the very same Mr. Cheney and wooden operated mouthed George Bush relied on to affirmatively, aggressively and illegally start a war against Iraq for the sins of 9/11 that Iraq not only did not commit, but had actual avarice for the people who did.

That Scooter Libby.

So, if Scooter Libby can skate and, in the process, serve as a firewall for the immorality and illegality of the Bush/Cheney Administration, there is no reason the Lizard King should not be posthumously exculpated.

No tears, no fears, but a lot of ruined years. Charlie Crist made clear intimations he wanted to do this when he took office. Being a gutless politician at heart he, of course, never did it as Governor of the rockin state of Florida. Instead he cowered to the perceived sensabilities of the people in rockin chairs. And lost his ass, soul and electability in the process. Douchebag. Crist is toast. But if he wants to belatedly clean up the halls of the Morrison Hotel, well then I am all for that. Mr. Mojo is rising; Charlie Crist is not. Lizard Kings rule; political blanks drool.

We have constructed pyramids in honor of this escaping. Let the spirit of Mr. Mojo fly Mr. Charlie Crist. It is about the only thing of merit, morals and guts you can do at this point. Get on with it you ineffectual political chameleon stale fish.

CIA Secretly Breaking the Law with Impunity Again

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Apparently, the Jan Schakowsky’s House Subcommittee completed its investigations of all the times the CIA failed to inform the Gang of Eight about covert ops and in other ways broke the law. Apparently, that investigation found “several instances” where CIA failed for follow the law procedures. But you can’t know precisely what those violations are, because they’re secret.

Here’s Silvestre Reyes’ statement on the investigation.

Today, the Committee officially completed its investigation into the congressional notification practices of the Intelligence Community by voting to adopt a final report presented by Subcommittee on Oversight and Investigations Chair Jan Schakowsky.

In its investigation, the Committee examined sixteen specific instances, spanning three Administrations, in which the Community did not provide Congress with complete, timely, and accurate information about intelligence activities. The Committee also examined federal law and regulations concerning the provision of information about intelligence activities to Congress; congressional notification policies, practices, and procedures across the Intelligence Community; and whether those contributed to any past notification failures.

The findings, I believe, are impressive and eye-opening. The report details the facts uncovered by the investigation in a thorough and even-handed manner. Its analysis is careful and well-founded. Its conclusions and recommendations are reasonable. I commend Ms. Schakowsky and her staff for their excellent work.

Given the sensitive nature of the investigation’s core issues, the content of the report is classified. I can say, though, that in several specific instances, certain individuals did not adhere to the high standards set forth by the Intelligence Community and its agencies. It’s the Committee’s aim to have these standards implemented on an official level, through policy, procedure, or law.

I am pleased to note that several of the recommendations contained in this report, including Gang of Eight reform, were largely enacted back in October when the President signed the FY2010 Intelligence Authorization Act into law.

Finally, let me emphasize that the Committee supports the efforts of the intelligence workforce in its difficult mission to keep America safe. And, while there may be differences of opinion with respect to specific findings, I think that all members can agree that the Committee must be kept fully and currently informed of significant intelligence activities in order to assist the Intelligence Community and keep them well-resourced. [my emphasis]

The Privatization of Citizen Informant Networks

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Remember the former JSOC guy in charge of Homeland Security for PA who hired an Israeli-connected private intelligence company to collect information on environmentalists and peace activists? Well, it will surprise none of you that they were comparing Rainforest Action Network to Al Qaeda and trying to set up their own network of people informing on US citizens.

It turns out the homeland security office or its private consultant were doing more than just monitoring law-abiding citizens.

They were comparing environmental activists to Al-Qaeda.

They were tracking down protesters and grilling their parents.

They were seeking a network of citizen spies to combat the security threats they saw in virtually any legal political activity.

And they were feeding their suspicions not only to law enforcement, but to dozens of private businesses from natural gas drillers to The Hershey Co.

It was only a matter of time before the corporations running our country would equate–as ITRR did–embarrassing one of those corporations with terrorism.

And if that bugs you, just gorge yourself on some Hershey kisses. You can rest assured those Hershey kisses haven’t been damaged by scary peace activists or environmentalists!

Durham Torture Tape Case Dies, US Duplicity in Geneva & The Press Snoozes

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From the best available information as to the original destruction date of the infamous “Torture Tapes” having been on November 8, 2005, the statute of limitations for charging any general crime by employees and/or agents of the US Government for said destruction will expire at midnight Monday November 8, 2010 as the general statute of limitation is five years. By operation of law, the statute would have run yesterday were it not a Sunday. So, by the time you are reading this, it is over. Absent something extraordinary, and I mean really extraordinary, a criminal statute of limitation is effectively a bar to subject matter jurisdiction and that is that. Ding dong, the John Durham torture tape investigation is thus dead.

Last week, I wrote a letter to the DOJ and saw to it that it was delivered to the main contacts, Dean Boyd and Tracy Schmaler, as well as John Durham’s office. None of them responded. Finally, late Monday afternoon I called Durham’s office, and they acknowledged having received the letter. Although extremely cordial, there was simply no meaningful information or discussion to be had on the subject. “We have no comment” was about the size of it. I asked about the remote possibility of the existence of a sealed indictment; there was “no comment” on that either, and there is absolutely no reason in the world to think anything exists in this regard.

Oh, there was one thing; when I asked why there had been no formal response to my letter, I was told perhaps it was a “little edgy”. Apparently actually phrasing an inquiry with legal specificity and facts makes it too “edgy” for the United States Department Of Justice. Who knew? Ironically, at the same time this discussion was transpiring today, the very same Obama DOJ was in US Federal Court, in front of Judge John Bates of the DC District, arguing for their unfettered right to extrajudicially execute an American citizen, and do so in secret without explanation. But my letter asking about the dying Durham investigation was edgy. The DOJ’s priorities, morals and duties seem to be a bit off kilter when it comes Read more →

NYT and the Iranian Capture Story

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In a curious story yesterday, the NYT quotes freed Iranian captive Sarah Shourd explaining that when she and two other hikers were captured in July 2009, they were inside Iran.

Ms. Shourd, 32, said she wanted to correct the gathering false impression, fueled by a classified United States military report made public last week by WikiLeaks, as well as earlier American and British news reports, that the hikers were detained inside Iraq and forced across the border. Her comments came just days before her two fellow hikers, her fiancé, Shane M. Bauer, and their friend Joshua F. Fattal, both 28, are scheduled to go on trial in Iran on Saturday.

On the fateful day, when they approached the armed border guard who had gestured to them, “He pointed to the ground and said ‘Iran’ and pointed to the trail we had been on before he waved to us, then said ‘Iraq,’ ” Ms. Shourd said by telephone from her home in Oakland, Calif. “We did not actually enter Iran until he gestured to us. We were confused and worried and wanted to go back.”

The NYT reports this without acknowledging–or amending–their earlier report on the capture, which (not least because NYT used different redaction standards than Wikileaks) was a key part of spreading the story that they were captured in Iraq.

Perhaps the NYT has left the two contradictory stories as they are because of the later story’s implied suggestion about Shourd’s motive. Her fiance is about to go on trial in Iran, and she surely wants to do anything she can to improve his chances of being freed, even if it means supporting Iran’s version of the story. And if you think about it, the story most sources are telling is that the hikers had no idea which side of the border they were on, which means any certainty Shourd has about where they were captured would come primarily from her Iranian captors.

Note, too, that the NYT only seeks comment from the State Department, and not DOD or any other government agency, to clarify the question. The State Department appears very interested in avoiding any conclusion about whether the hikers were in Iraq or Iran.

The United States State Department has never suggested the version published by WikiLeaks, she said, always maintaining that it did not know how their arrest happened.

The State Department spokesman, Philip J. Crowley, confirmed that on Sunday. “We don’t know whether they had two feet on one side or the other or one foot on each,” he said. “All we know is Iran has held them far too long.”

Which in turn suggests that the NYT is not interested in using the story to get to the truth of the issue, but rather to make sure Shourd’s refutation of the DOD report appears in a prominent location.

At the moment, I won’t say any more about the credibility of the many conflicting stories that have been told about this capture, except to remind that the NYT (but not Wikileaks) left the closing date on the report unredacted; that closing date, at least, appears to show the report being closed–at 2:18 on July 31–almost two hours before the first time recorded in the report, 4:00.

That doesn’t say anything about the credibility of the report.

But what NYT’s contradictory stories about the capture appear to suggest is that, in their glee to release the Iran capture report in a form that served their Michael Gordon-written narrative about Iran, they may have done far more than Wikileaks itself did to put American lives at risk. That is, by publishing the report and the story, the NYT introduced a claim that Shourd feels obliged to refute before her fiance’s trial starts.

I’ll let others weigh in on the journalistic ethics of the NYT’s contradictory stories. I just wanted to note this to point out that the US’ own attempts to craft the Wikileaks dump with their preferred spin seems to have done the most damage, thus far.

The $258 of Intelligence You Bought This Year

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Congratulations to Steven Aftergood, whose persistent efforts to get the government to reveal the topline intelligence budget have finally paid off. Yesterday, the government officially announced that it spent $80.1 billion on intelligence in the last year, up 7% in just the last year and 100% since 9/11.

The government announced Thursday that it had spent $80.1 billion on intelligence activities over the past 12 months, disclosing for the first time not only the amount spent by civilian intelligence agencies but also by the military.

The so-called National Intelligence Program, run by the CIA and other agencies that report to the Director of National Intelligence, cost $53.1 billion in fiscal 2010, which ended Sept. 30, while the Military Intelligence Program cost an additional $27 billion.

[snip]

The disclosure Thursday that intelligence spending had risen to $80.1 billion, an increase of nearly 7 percent over the year before and a record high, led to immediate calls for fiscal restraint on Capitol Hill.

That’s $258 a year for every man, woman, and child in this country. $21 a month per person, or $86 for a family of four.

But don’t worry; I’m sure all the people losing their homes and relying on food stamps can afford that much intelligence. Think of it like a second phone bill–that’s undoubtedly where at least a chunk of that money is going.

In response to this admission, both DiFi and Silvestre Reyes issued statements promising improved fiscal oversight of the intelligence community. That’s great! They can have the phone companies fight over the right to get paid handsomely to spy on us!

Are Iran’s Bags of Euros for Daudzai Bigger than CIA’s Bags of Dollars for Karzai’s Brother?

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The outage of the day is the report that Hamid Karzai’s chief of staff, Umar Daudzai, receives a steady stream of bags of Euros from Iran.

One evening last August, as President Hamid Karzai wrapped up an official visit to Iran, his personal plane sat on the airport tarmac, waiting for a late-running passenger: Iran’s ambassador to Afghanistan.

The ambassador, Feda Hussein Maliki, finally appeared, taking a seat next to Umar Daudzai, Mr. Karzai’s chief of staff and his most trusted confidant. According to an Afghan official on the plane, Mr. Maliki handed Mr. Daudzai a large plastic bag bulging with packets of euro bills. A second Afghan official confirmed that Mr. Daudzai carried home a large bag of cash.

“This is the Iranian money,” said an Afghan official, who spoke on condition of anonymity. “Many of us noticed this.”

The bag of money is part of a secret, steady stream of Iranian cash intended to buy the loyalty of Mr. Daudzai and promote Iran’s interests in the presidential palace, according to Afghan and Western officials here. Iran uses its influence to help drive a wedge between the Afghans and their American and NATO benefactors, they say.

Mind you, Karzai claims he has told the US about his Iranian gravy train.

But I think the real question to ask is whether the bags of Euros Daudzai gets from Iran are bigger than the bags of dollars Ahmed Wali Karzai–Hamid’s brother–receive from the CIA?

Ahmed Wali Karzai, the brother of the Afghan president and a suspected player in the country’s booming illegal opium trade, gets regular payments from the Central Intelligence Agency, and has for much of the past eight years, according to current and former American officials.

The agency pays Mr. Karzai for a variety of services, including helping to recruit an Afghan paramilitary force that operates at the C.I.A.’s direction in and around the southern city of Kandahar, Mr. Karzai’s home.

And whether the money all ends up in the same place: in the Karzai clique’s private bank accounts in Dubai?

While we’re clutching pearls about monetary influence, we probably ought to ask how all the bags of money flowing to Karzai compare to the truck-loads of foreign money being spent to influence our elections. Granted, the $885,000 we know about is probably smaller than the total directly benefiting Karzai. But after Citizens United, we’re just getting started.

Eric Holder’s Defense of Ashcroft to Defend the Material Witness Statute

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The NYT has a worthwhile editorial lambasting the Obama DOJ’s pursuit of SCOTUS review in Ashcroft v. al-Kidd, which will probably result in expanded immunity for government officials that abuse the law so as to abuse the rights of Americans. The editorial focuses closely on the way in which DOJ’s defense of absolute immunity amounts to a defense of using the material witness law as an improper basis for detention.

Prosecutorial immunity is intended to let prosecutors enforce the law without fear of being held personally liable. Protecting that legitimate aim did not require the administration to defend the indefensible. In forcefully defending the material witness statute on grounds that curtailing it would severely limit its usefulness, it is defending the law as a basis for detention. That leaves the disturbing impression that the administration is trying to preserve the option of abusing the statute again.

In other words, NYT argues that DOJ’s SCOTUS appeal in this case is as much about preserving the improper use of the material witness statute–to hold a person under the material witness statute so you can conduct an investigation into him–as it is about the immunity per se.

Of course it is.

After all, this is what Eric Holder (along with Janet Reno and two others) had to say about the material witness statute in 2004.

Even when there is insufficient evidence to charge a citizen with a crime, the material witness statute, 18 U.S.C. § 3144, permits the detention of a person whose testimony is “material in a criminal proceeding” if “it may become impracticable to secure the presence of the person by subpoena.” This statute is an effective counter-terrorism tool for several reasons. Because a grand jury investigation is a “criminal proceeding” for purposes of this statute, see United States v. Awadallah, 349 F.3d 42, 49-64 (2d Cir. 2003); Bacon v. United States, 449 F.2d 933, 939-41 (9th Cir. 1971), and because of the broad scope of grand jury investigations, see supra p. 11, the government can detain a suspected terrorist as a material witness before it has evidence sufficient to support a criminal arrest or indictment.

The government can obtain a material witness warrant with relative ease. For a grand jury witness, the required showing can be made by a good faith statement by a prosecutor or investigating agent that the witness has information material to the grand jury. Bacon, 449 F.2d at 943; Awadallah, 349 F.3d at 65-66. Nor would establishing that a suspected terrorist poses a flight risk be an onerous task. See 349 F.3d at 69 (bail denied in part because witness failed to come forward with material testimony concerning terrorist attack). [my emphasis]

Mind you, in its Cert Petition, the government doesn’t admit that the material statute really was used in al-Kidd’s case to hold him even though the government had insufficient evidence to do so.

First, respondent claimed that, in response to the September 11, 2001, terrorist attacks, petitioner implemented a policy of using the material witness statute as a pretextual tool to investigate and detain terrorism suspects whom the government lacked probable cause to charge criminally. Respondent alleged that he was arrested as a result of this alleged policy, which he contended violated the Fourth Amendment. [my emphasis]

So even though a document–signed by the current Attorney General at a time when al-Kidd was still subject to restricted movement–boasts about how easy it is to use of the material witness statute to hold people without sufficient evidence to do so, DOJ calls this use of the material witness statute “alleged.”

I guess if they admitted this was an intentional policy, it’d be harder to get SCOTUS to wink at its use going forward.

Update: harpie’s right. This is an editorial, not an op-ed.