More Missing Emails at DOJ?

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I’m still working on a big post on the DOJ IG Report on domestic spying. But for the moment I wanted to call attention to a footnote that seems to suggest the emails from FBI employees in Pittsburgh who had conducted surveillance of the Thomas Merton Center and/or invented an excuse for doing so after the fact were unavailable when DOJ’s IG asked for emails in association with this investigation. The foonote (see PDF 60) reads:

We requested all e-mails from the Pittsburgh employees connected with this matter for the relevant dates. However, the FBI provided none that pertained to this matter.

We know there should be some emails, because we know that the supervisor the report calls “Susan Crosetti” received emails from the Counterterrorism Division in 2006 as they were trying to respond to Pat Leahy’s questions about the surveillance. The IG got the emails from CTD–including one asking the question, “do we know who was being investigated at the rally?” But neither Crosetti’s version of the email, nor its response, ever got turned over to the IG.

Did OLC Change the Understanding of Riot Investigations to Time w/RNC Convention?

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There’s an interesting detail in the IG Report on FBI’s investigations of peace groups that suggests FBI was asking OLC for an interpretation of the approval required before conducting a riot-related investigation.

The Attorney General’s Guidelines on “Reporting on Civil Disorders and Demonstrations” were in effect from 1976 until they were repealed and partially incorporated into the 2008 Guidelines. Two FBI OGC attorneys we interviewed told us it was their interpretation that the Guidelines required the FBI to request Attorney General approval to open an investigation under the federal riot statute. 18 USC 2101, and the civil disorders statute, 18 USC 231.

[snip]

In July 2008 the DOJ Office of Legal Counsel (OLC) sent an informal opinion to OGC that stated that the Demonstration Guidelines do not require Attorney General approval to open an investigation under the riot statute or the civil disorders statute. However the OLC attorney also said that “as a prudential matter” the FBI should consider requesting such approval before initiating investigations under these statutes. The 2008 Attorney General’s Guidelines repealed the Demonstration Guidelines and requires the approval of the Attorney General, Deputy Attorney General, or the Assistant Attorney General for the Criminal Division only when the FBI collects information relating to actual or threatened disorders to assist the President in determining whether, pursuant to 10 USC 331-33, “use of armed forces or militia is required and how a decision to commit troops should be implemented.”

This footnote is presented in the context of an investigation pertaining to the FTAA meeting in Miami in 2003, but it’s the changes in interpretation in 2008 that I’m most interested in.

This footnote seems to suggest that in July 2008, in the weeks before the Presidential Convention season, someone in OLC lowered the bar for starting an investigation into a potential riot. That’s all the more interesting, given the liberal use of the riot statute Ramsey County and FBI used in preemptively arresting people leading up to the RNC Convention in September of 2008.

In any case, the lowered standard for investigating people for planning riots appears to be the rule now, as the government only needs to get higher approval for riot investigations if they plan to militarize the response.

If and When Democrats Keep the House, Conyers Should Remind Holder the Import of Congressional Oversight

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I realize the odds of Democrats keeping the House are not all that great. But I also know that the DCCC is far more competent than the RNCC; DCCC has managed to win just about every challenging election of late.

So let’s just say Democrats keep the House and with it John Conyers his gavel. I really hope he’ll make Eric Holder regret not only this inappropriate comment to Lamar Smith (I don’t care whether Democrats or Republicans are in charge, the Committees are there to exercise oversight, not “be nice” to the agencies they cover), but also the unnecessary disloyalty.

Maybe Conyers can start by asking Holder to either provide a more credible explanation for why Pittsburgh’s FBI office was lying about taking a picture at a peace rally with no premise to do so than the FBI provided to Inspector General Glenn Fine (more on this IG Report in a bit).

FBI officials, including the Pittsburgh office’s top lawyer, engaged in distinctly COINTELPRO-style tactics after the American Civil Liberties Union sued for the release of documents relating to the surveillance.Boiled down to their essence, those tactics involved officials generating post-dated “routing slips” and other paper to create a terrorism threat that didn’t exist.

Or as the inspector general put it, the FBI’s elaborate, “after-the-fact reconstruction” of the Pittsburgh events, designed to fabricate a counter-terrorism rationale for the rookie’s surveillance mission, “was not corroborated by any witnesses or contemporaneous documents.”

It was on the basis of their fabrication, moreover, that FBI Director Robert S. Mueller III gave “inaccurate and misleading” testimony to Congress, the IG said.

The IG’s recounting of the Pittsburgh events is lengthy and meticulous.

The FBI, however, continues to deny that bureau officials engaged in an elaborate and deliberate scheme to deceive investigators, Congress and the pubic about what was, in retrospect, one rookie agent’s minor, misdirected surveillance of the Pittsburgh antiwar demonstration.

“Nobody,” the FBI says, “had a motive to provide an intentionally misleading account of it.”

It seems the only people who are given carte blanche to lie and obstruct justice are those trying to evade Congressional oversight, and the people who rely on that seeming carte blanche report up through Holder. That’s a management failure and a failure of the rule of law.

Would that the Attorney General cared more about that rule of law than chumming up to the opposition party.

The Real Terrorists

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I’ve started reading through J. Edgar Hoover’s files the reports a contractor developed for PA’s Department of Homeland Security that describe political activism as a terrorist threat; Governor Rendell has made them publicly available here. I’ll have more to say about them later (though feel free to add comments on them below).

But for the moment, I’d like to unpack the underlying premise.

The whole idea behind collecting this information and sharing it with private sector entities like oil drilling lobbyists arose as part of efforts to protect our critical infrastructure from terrorist attack after 9/11. US DHS describes the imperative to protect critical infrastructure and key resources (CIKR) this way:

Why is CIKR Protection Important?

  • Attacks on CIKR could significantly disrupt the functioning of government and business alike and produce cascading effects far beyond the targeted sector and physical location of the incident.
  • Direct terrorist attacks and natural, manmade, or technological hazards could produce catastrophic losses in terms of human casualties, property destruction, and economic effects, as well as profound damage to public morale and confidence.
  • Attacks using components of the nation’s CIKR as weapons of mass destruction could have even more devastating physical and psychological consequences.

The Homeland Security Act of 2002 provides the primary authority for the overall homeland security mission. This act charged the Department of Homeland Security with primary responsibility for developing a comprehensive national plan to secure CIKR and recommend “the measures necessary to protect the key resources and critical infrastructure of the United States.” This comprehensive plan is the National Infrastructure Protection Plan (NIPP), published by the Department in June 2006. The NIPP provides the unifying structure for integrating a wide range of efforts for the protection of CIKR into a single national program.

And here’s what the federal government’s Department of Homeland Security considers critical infrastructure, which is how the ITRR organized the reports it gave to PA’s DHS:

So you see, because “attacks on CIKR could significantly disrupt the functioning of government and business alike and produce cascading effects far beyond the targeted sector and physical location of the incident,” PA (and surely other states) are collecting information about the lawful political organizing of anti-drilling and animal welfare activists, among others.

What I want to know is why we regard terrorist attacks to be the greatest threat to our transportation system? To our water? To our food system?

And most of all, to our banking and finance system?

Just to take one example, who do you think is a greater risk to our oil and gas infrastructure? A bunch of hippie protesters trying to limit drilling in the Marcellus Shale and thereby protect the quality of their drinking water (which is, itself, considered critical infrastructure)? Or PG&E, which sat on knowledge of an extremely high risk pipeline for three years even after setting aside the money to fix it?

Three years ago, PG&E asked state regulators for permission to spend $4.87 million to replace a section of the pipeline associated with the pipe that exploded in San Bruno last Thursday. The 1.42-mile section that ran under South San Francisco, which is more heavily populated than San Bruno, was considered extremely high risk and in need to replacement. Last year, the utility company made a similar request to replace a larger section of the same pipeline, at a cost of $13 million. Rate increases were approved and the plan should have gone forward. Sadly, nothing was done and lives were lost.

The South San Francisco pipeline replacement project was dropped down on the priority list and the money allocated for the work was spent elsewhere. Many experts and laypersons alike are now asking, why didn’t PG&E replace pipes they knew to be extremely dangerous?

And while multiple layers of government make sure the PG&Es of the world know about those hippie protesters, they can’t be bothered to require the utilities or pipeline operators to actually return the favor by revealing where the pipelines at risk of explosion are.

In a letter sent Friday, the executive director of the California Public Utilities Commission, Paul Clanon, sought the location of each pipeline segment on the list as well as a “detailed description of the criteria PG&E uses in deciding which pipeline segments to characterize as high-priority projects.”

Clanon defended the delay in seeking the list, whose existence PG&E disclosed as early as 2007, saying the agency didn’t see the need for the information before. Just because a site is on the list doesn’t necessarily mean it is dangerous, he said, adding that it’s not his agency’s role “to run the day-by-day activities of the utility.”

Leave aside our wholesale neglect of these elements of critical infrastructure themselves–the crumbling of our pipelines and roads and financial system because neither the public nor the private sector want to spend the money and time to keep them together–and focus on the information gathering part of it.

Because terrorism is somehow a greater threat to our country than PG&E’s neglect or Wright County Egg’s negligence or Lehman’s greed, we collect and share information on hippies. But not on the pipelines that will explode of their own accord, with action from neither hippies nor terrorists.

Updated to fix typo, “Communities” instead of “Communications.”

But Who Has JSOC’s Back?

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Michael Hayden has another tired whine at CNN about Obama’s treatment of the torture program. The entire logic of the piece is predictably silly. It goes something like this:

  1. ACLU and CCR are suing the government for targeting American citizen Anwar al-Awlaki with no due process.
  2. According to Hayden, the targeting of Awlaki was “Authorized by the president, approved as legal, briefed to Congress.”
  3. According to unnamed legal scholars, the suit has little chance of success.
  4. But Obama’s DOJ released OLC memos on the torture program in response to an ACLU suit and investigated the torture of detainees that exceeded DOJ guidelines and therefore was illegal.
  5. This makes Hayden mad because it constitutes “exposing a previously authorized program for apparent political purposes.”
  6. Oh, and by the way, the UN rapporteur for extrajudicial killings also has a problem with targeted killings (and not just those of US citizens), though I’m not entirely sure what Hayden thinks Obama should do about that.

I guess this piece is supposed to be a warning to the White House–which has already assured CIA that it won’t be prosecuted for breaking the law on Obama’s orders–that it needs to make triple sure that none of those with the legal means to do so hold the CIA responsible for the illegal things it is doing. The whole thing would just make more sense if Hayden hadn’t personalized it so much (because, after all, he probably ought to be more concerned about a future President trying to distinguish herself from Obama’s abysmal record in this area). But I get it–Hayden lost some arguments with the Obama Administration and so this whole issue is very very personal.

And I wonder, really, does Hayden believe that Presidents really do have unlimited ability to make laws disappear? And if Hayden is so certain those unnamed legal scholars are correct about the legality of the assassination program and the poor chances the ACLU/CCR suit will succeed, then why complain? Or maybe, given the contortions that Obama’s DOJ is going through in contemplation of litigating the ACLU/CCR suit, Hayden’s confidence that the suit won’t succeed is merely bravado?

But the other amusing thing about this screed is its focus on the CIA. Hayden treats this as danger experienced primarily by the CIA.

The CIA is asked to do things no one else is asked — or even allowed — to do. And when CIA officers agree to do these things (after appropriate authorization, judgment with regard to lawfulness and congressional notification), they believe that they have a contract with their government, not a particular administration, that the government will have their back legally, ethically and politically.That belief was shattered by the Obama administration’s actions. Agency officers were shown that those guarantees have the half-life of one election cycle in the American political process. No wonder one astute observer of the agency likened it to a car bomb going off in the driveway at Langley.

But what about JSOC?

After all, Awlaki has been on JSOC’s kill list for longer than he has been on CIA’s. According to reporting, JSOC is as involved in the targeted killing program as CIA (as they were in the torture program). Why isn’t retired General Hayden worried about those killers?

Granted, there is a distinction. When civilians at the CIA target people for assassination, particularly those who pose no imminent threat, the claim that the killing is legal under the law of war is much weaker.

But for some reason, JSOC doesn’t have the need to trot out spokesmen to defend itself every third month, but CIA does.

If Blackwater Couldn’t Keep Benazir Bhutto Safe, Why Is State Still Contracting with Them?

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When Erik Prince testified before the Oversight Committee on October 2, 2007, he boasted that no one under Blackwater’s protection had ever been seriously hurt or killed.

No individual protected by Blackwater has ever been killed or seriously injured. There is no better evidence of the skill and dedication of these men.

At precisely the same time as Prince was making that boast, Blackwater was negotiating a protection deal that would not end so successfully.

The Nation has previously reported on Blackwater’s work for the CIA and JSOC in Pakistan. New documents reveal a history of activity relating to Pakistan by Blackwater. Former Pakistani Prime Minister Benazir Bhutto worked with the company when she returned to Pakistan to campaign for the 2008 elections, according to the documents. In October 2007, when media reports emerged that Bhutto had hired “American security,” senior Blackwater official Robert Richer wrote to company executives, “We need to watch this carefully from a number of angles. If our name surfaces, the Pakistani press reaction will be very important. How that plays through the Muslim world will also need tracking.” Richer wrote that “we should be prepared to [sic] a communique from an affiliate of Al-Qaida if our name surfaces (BW). That will impact the security profile.” Clearly a word is missing in the e-mail or there is a typo that leaves unclear what Richer meant when he mentioned the Al Qaeda communiqué. Bhutto was assassinated two months later. Blackwater officials subsequently scheduled a meeting with her family representatives in Washington, in January 2008.

This detail–though not surprising–raises more questions than offer answers. Like what the hell word is that is missing before “communique”? Was Blackwater proposing to mitigate the PR problem of public association with Bhutto just as scrutiny over the Nissour Square massacre was most intense by inventing a fake communique, of some sort, from al Qaeda? (Elsewhere in Scahill’s piece, he describes a training course Blackwater offered on al Qaeda tactics, including propaganda. So presumably, they considered themselves experts in creating fake al Qaeda propaganda.

And if Blackwater had a previously unrevealed failure–a really costly, spectacular one–then why is State Department still contracting with them for such protective services? Not least given that Blackwater would presumably be protecting people in Afghanistan against some of the same creeps who presumably bested Blackwater when they assassinated Bhutto?

Moreover, given that the State Department gave Blackwater follow-on contracts after Blackwater failed to keep Bhutto safe, then have they at least done a real assessment of what went wrong? Last we heard from Blackwater publicly, they had a purportedly perfect record. But they don’t. And no one told us that. If we’re going to give another $120,000,000 to Blackwater, have we at least studied, first, what went wrong with Blackwater’s notable failure with Bhutto?

Blackwater Served as Monsanto’s Intelligence Arm

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Jeremy Scahill has a new piece on Blackwater that is fairly incendiary.

Among other things (I’ll have more to say later), he reveals that Blackwater provided Monsanto with security services in 2008-2009.

According to internal Total Intelligence communications, biotech giant Monsanto—the world’s largest supplier of genetically modified seeds—hired the firm in 2008–09. The relationship between the two companies appears to have been solidified in January 2008 when Total Intelligence chair Cofer Black traveled to Zurich to meet with Kevin Wilson, Monsanto’s security manager for global issues.

After the meeting in Zurich, Black sent an e-mail to other Blackwater executives, including to Prince and Prado at their Blackwater e-mail addresses. Black wrote that Wilson “understands that we can span collection from internet, to reach out, to boots on the ground on legit basis protecting the Monsanto [brand] name…. Ahead of the curve info and insight/heads up is what he is looking for.” Black added that Total Intelligence “would develop into acting as intel arm of Monsanto.” Black also noted that Monsanto was concerned about animal rights activists and that they discussed how Blackwater “could have our person(s) actually join [activist] group(s) legally.” Black wrote that initial payments to Total Intelligence would be paid out of Monsanto’s “generous protection budget” but would eventually become a line item in the company’s annual budget. He estimated the potential payments to Total Intelligence at between $100,000 and $500,000. According to documents, Monsanto paid Total Intelligence $127,000 in 2008 and $105,000 in 2009. [my emphasis]

Click through for the denial Monsanto’s Wilson gave to Scahill: basically, he denied that Monsanto used Blackwater to target animal rights activists, but did use them for “scanning the content of activist blogs and websites.” Not to mention work in Asia and Latin America.

It’s bad enough to have PA’s contractor developing intelligence reports on anti-drilling activists to send to lobbyists. It’s yet another thing when Blackwater’s thugs are tracking those activists.

When Political Activism Gets Treated as Potential Terrorism

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PA’s Department of Homeland Security has employed an entity called the Institute for Terrorism Research and Response to monitor the web traffic of anti-drilling activists in that state. The effort was purportedly started to fulfill national requirements to protect critical infrastructure.

As more attention was focused on this yesterday, Governor Rendell said he was embarrassed by the news and fired the company engaging in the spying; but he didn’t fire the guy who had hired the company.

Rendell, who claimed he’d just learned about the practice, said Tuesday that the information was useless to law enforcement agencies and that distributing it was tantamount to trampling on constitutional rights. In recent weeks, several acts of vandalism at drilling sites spurred the inclusion of events likely to be attended by environmentalists and the bulletins began going to representatives of Pennsylvania’s booming natural gas industry.

[snip]

“I am deeply embarrassed and I apologize to any of the groups who had this information disseminated on their right to peacefully protest,” Rendell said at an evening Capitol news conference.

Rendell called the practice “ludicrous” and said the fact that the state was paying for such rudimentary information was “stunning.”

Still, Rendell said he was not firing his homeland security director, James Powers, but he ordered an end to the $125,000 contract with the Philadelphia-based organization, the Institute of Terrorism Research and Response, that supplied the information. [my emphasis]

But the first response from the Governor’s office–for the paper that first broke this story–was initially support for the program.

Gary Tuma, Gov. Ed Rendell’s spokesman, said, “It is part of Homeland Security’s responsibility to alert local law enforcement, local officials and potential victims” to any potential problems.

He said the inclusion of anti-drilling activity in intelligence bulletins “by no means brands groups that speak publicly on one side or the other of an issue as troublemakers.” The information has been included “because there have been acts of vandalism.”

Powers added that a lot of times anti-drilling activists show up without obtaining a permit to protest, “and that in itself is a violation of the law.”

When it was noted that citizens do not need a permit to attend public meetings and express dissenting opinions, Powers said, “You’re looking at it out of context. I get to see everything over time.”

Powers said that when anti-drilling activists attend public meetings, “their presence may spark something else.” He said he didn’t want to see public meetings “escalate to physical criminal acts.” [my emphasis]

Now, perhaps Rendell was ignorant about this effort. Perhaps his opposition to it is–as stated–that the information collected was not useful for law enforcement.

But I am rather curious by this detail: when the emails revealing the extent of the surveillance got sent to activists, James Powers–the guy Rendell didn’t fire–sent an email to (among others) the drilling industry’s lobbyist, saying he didn’t want this information to inflame anti-drilling activists.

He added, “We want to continue providing this support to the Marcellus Shale Formation natural gas stakeholders, while not feeding those groups fomenting dissent against those same companies.”Powers sent copies of his e-mail to the Institute of Terrorism Research and Response as well as to Pam Witmer, a lobbyist with the Bravo Group, which lobbies for the gas industry.

Which sure makes it seem like Powers was about monitoring political activities–those “fomenting dissent”–rather than potential terrorists.

Among the others included in this surveillance?  Anarchists, “black power” groups, animal rights activists protesting a rodeo.

Because we all know rodeos are critical infrastructure.

What Bush and Ashcroft Meant By “If al-Qaida Is Calling”

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Remember when George W. Bush defended his illegal warrantless surveillance program with these lines:

We are at war with an enemy who wants to hurt us again …. If somebody from Al Qaeda is calling you, we’d like to know why,” he said. “We’re at war with a bunch of coldblooded killers.

…when we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so … We’re at war, and as commander in chief, I’ve got to use the resources at my disposal, within the law, to protect the American people

That statement was made on January 2, 2006 in direct response to a question Bush got about Jim Risen and Eric Lichtblau’s blockbuster article in the New York Times exposing the illegal program that went to print just two weeks prior.

Since those early days of realizing the United States government was running an illegal and unconstitutional spy surveillance operation on its own citizens, we have learned an awful lot. For too many citizens, it does not even seem to hold interest. Today, the Center for Constitutional Rights reminds us what the Bush Administration was really up to, how patently absurd it was and just how big of a lie George Bush fostered on the American public. Turns out “If al-Qaida is calling” meant random government searches of phone books for Muslim sounding names and taking crank phone calls.

From a CCR press release I just received:

Today, the Center for Constitutional Rights (CCR) announced that six new plaintiffs have joined a federal, class action lawsuit, Turkmen v. Ashcroft, challenging their detention and mistreatment by prison guards and high level Bush administration officials in the wake of 9/11. In papers filed in Federal Court in Brooklyn, CCR details new allegations linking former Attorney General Ashcroft and other top Bush administration officials to the illegal roundups and abuse of the detainees.

Five of the plaintiffs in the original lawsuit won a $1.26 million settlement in November 2009. Read more →

“The law enforcement approach … mucks up our strategic interests.”

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I’ve been tracking the debate within the Administration over whether we should tolerate corruption in Afghanistan in the name of sustaining a war against someone–anyone–in Afghanistan or not for some weeks. Underlying the entire debate is the fact that our goals in Afghanistan–which started as a pursuit of those who struck us on 9/11 and now, having achieved that in Afghanistan, appears to be “not lose”–are totally unclear and apparently divorced from national interest. The debate pits those who believe corruption discredits the Karzai regime and creates support for the Taliban against those who rely on corrupt members of the Karzai regime who claim cracking down on corruption (which is, effectively, the removal of our aid money to private bank accounts in Dubai) will hurt the goal, which they’ve redefined, without Congressional buy-off, as defeating the Taliban.

Here’s how today’s installment, from  By Rajiv Chandrasekaran, captures the debate:

The debate turns largely on how various administration officials view the connection between corruption and the insurgency.

Some officials, principally at the staff level, contend that government venality and incompetence is the principal reason Afghans are joining, supporting or tolerating the Taliban. Other administration and military officials, particularly those at senior levels, maintain that graft is just one of many factors – along with sanctuaries in Pakistan, historical tribal grievances and anger at the presence of foreign forces on Afghan soil – that fuel the conflict.

Compounding the challenge is that many Afghan officials who are regarded as corrupt also provide valuable assistance to U.S. forces, including sensitive intelligence. Some, including the palace aide, are on the CIA’s payroll – a fact not initially known to investigators working on the case.

And while this debate seems to be still raging among those in Afghanistan, Chandrasekaran reports that top officials in the Obama Administration have decided to set aside the law enforcement approach for back room deals.

President Obama’s top national security advisers, who will meet with him this week to discuss the problem, do not yet agree on the contours of a new approach, according to U.S. civilian and military officials involved in Afghanistan policy. But the officials said there is a growing consensus that key corruption cases against people in Karzai’s government should be resolved with face-saving compromises behind closed doors instead of public prosecutions.

Once again, the anonymous official embracing corruption does so in the name of our “principal goals.”

“The current approach is not tenable,” said an administration official who, like others interviewed, agreed to discuss internal deliberations only on the condition of anonymity. “What will we get out of it? We’ll arrest a few mid-level Afghans, but we’ll lose our ability to operate there and achieve our principal goals.”

I’m beginning to believe “our ability to operate there” is our “principal goal.”

All of which discussion sets up this quote from an official in Kabul who has concluded we need to abandon a law enforcement approach.

There is a growing view at the U.S. and NATO headquarters in Kabul that “the law enforcement approach to corruption mucks up our strategic interests,” said the U.S. official there.

Of course, this comment pertains solely to rooting out corruption in Afghanistan. Not detention of captives. Not corruption of American contractors. Not targeting terrorists.

But it sure reveals, in stark fashion, how far we’ve come from our “principal goal” of governance, which is at least partly to support and defend the Constitution, otherwise known as a law enforcement approach.