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With Latif Decision, Section 1031 Authorizes Indefinitely Detaining Americans Based on Gossip

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As I noted yesterday, both Dianne Feinstein and Carl Levin understand Section 1031 of the Defense Authorization to authorize the indefinite detention of American citizens. Levin says we don’t have to worry about that, though, because Americans would still have access to habeas corpus review.

Section 1031 makes no reference to habeas corpus, and places no limitation on habeas corpus review.  Nor could it.  Under the Constitution, habeas corpus review is available to any American citizen who is held in military custody, and to any non-citizen who is held in military custody inside the United States.

Even ignoring the case of Jose Padilla, which demonstrates how easily the government can make habeas unavailable to American citizens, there’s another problem with Levin’s assurances.

Habeas was gutted on October 14, when Janice Rogers Brown wrote a Circuit Court opinion holding that in habeas suits, judges must grant official government records the
presumption of regularity.

The habeas case of Adnan Farhan Abdul Latif largely focused on one report purporting to show that Latif fought with the Taliban. I suspect the report is an early 2002 CIA report, written during the period when the US was trying to sort through hundreds of detainees turned over (sometimes in exchange for a bounty) by the Pakistanis. The report I suspect is at issue summarizes the stories of at least 9 detainees, four of whom have already been transferred out of US custody. David Tatel’s dissent makes it clear that there were clear inaccuracies in the report, and he describes Judge Henry Kennedy’s judgment that this conditions under which this report was made–in the fog of war, the majority opinion agrees–increased the likelihood that the report was inaccurate. Of note, Latif’s Factual Return reveals the government believed him to be Bangladeshi until March 6, 2002 (see paragraph 4); they blame this misunderstanding on him lying, but seeing as how the language of an interrogation–whether Arabic or Bangladeshi–would either seem to make his Arab identity clear or beset the entire interrogation with language difficulties, it seems likely the misunderstanding came from the problem surrounding his early interrogations.

Beyond that report, the government relied on two things to claim that Latif had been appropriately detained: The claim that his travel facilitator, Ibrahim Alawi, is the same guy as an al Qaeda recruiter, Ibrahim Balawi (usually referred to as Abu Khulud), in spite of the fact that none of the 7 detainees recruited by Balawi have identified Latif. And the observation that Latif’s travel to Afghanistan from Yemen and then out of Afghanistan to Pakistan traveled the same path as that of al Qaeda fighters (here, too, none of the fighters who traveled that same path identified Latif as part of their group).

In other words, the government used one intelligence report of dubious reliability and uncorroborated pattern analysis to argue that Latif had fought with the Taliban and therefore is legally being held at Gitmo.

And in spite of the problem with the report (and therefore the government’s case), Judge Janice Rogers Brown held that unless Judge Kennedy finds Latif so credible as to rebut the government’s argument, he is properly held. More troubling, Rogers Brown held that judges must presume that government evidence gathering–intelligence reports–are accurate as a default.

When the detainee’s challenge is to the evidence-gathering process itself, should a presumption of regularity apply to the official government document that results ? We think the answer is yes.

Rogers Brown is arguing for a presumption of regularity, of course, for the same intelligence community that got us into Iraq on claims of WMD; the report in question almost certainly dates to around the same period that CIA went 6 months without noticing an obvious forgery.

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The Detainee Debate Heats Up: The Rule of Martial Law Vs. the Unitary Spookery

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As I noted yesterday, Obama issued a veto threat for the detainee provisions included in the Defense Authorization. Since then, both Dianne Feinstein and Carl Levin have given speeches on the floor, arguing against (DiFi) and for (Levin) the provisions.

And while I’d be happy to see the provisions in question fail (because the provisions represent a further militarization of our country), effectively the argument being made is between those (the Republicans, enabled by Levin) who support further militarization of law and those (DiFi and, especially, the Administration) who want the Executive Branch to continue fighting terrorism (and whatever else) with an intelligence-driven approach bound by few legal checks.

DOJ’s Special Forms of Extended Interrogation and Coercion

In a sense, DiFi’s speech on Thursday looked like an appeal to rule of law. For example, she warns of the danger of “further militariz[ing] our counterterrorism efforts.” But what she really focused on in her speech–implicitly–are the tools the government has wrung out of the civilian legal system to make it easier to get intelligence (whoever picked a Senate Judiciary Committee member to be head of the Senate Intelligence Committee made this blurring of law and intelligence easier).

DiFi alludes to tools DOJ has that DOD does not. She mentions both Najibullah Zazi and Umar Farouk Abdulmutallab as people whose prosecution within the civilian justice system aided prosecution.

Suppose a terrorist such as Zazi were forced into mandatory military custody. Then the government could also have been forced to split up codefendants, even in cases where they otherwise could be prosecuted as part of the same conspiracy in the same legal system.

[snip]

It was FBI agents who traveled to Abdulmutallab’s home in Nigeria and persuaded family members to come to Detroit to assist them in getting him to talk. The situation would have been very different under Section 1032. Under the pending legislation, it would have been military personnel who were attempting to enlist prominent Nigerians to assist in their interrogation, and Abdulmutallab would have been classified as an enemy combatant and held in a military facility and, therefore, his family would not be inclined to cooperate. This is we have been told on the Intelligence Committee.

She appears to be invoking the way we’re getting people to talk: by threatening and persuading their families. In the case of Zazi, we got him to cooperate by charging his father. In the case of Abdulmutallab, we presumably made some guarantees about treatment if his family would persuade him to cooperate (maybe that’s why he stayed in a minimum security prison through the pre-trial period; I also wonder whether we threatened his prominent banker father).

Most charitably, this is akin to the problem Ali Soufan experienced with Salim Hamdan; Soufan was about to persuade Hamdan to cooperate in exchange for a shorter sentence when DOD dumped Hamdan in Gitmo where there was no option to trade cooperation for better treatment. As the case of Omar Khadr (who was not permitted to spend time with other detainees after he plead guilty) makes clear, in military custody, we lose control of the conditions of someone’s confinement as soon as they plead guilty, and so can’t use that as a tool to get people to cooperate.

But there’s something else DiFi is not saying, though is out there. With our creative interpretation of Miranda of late, we have interrogated Faisal Shahzad for two weeks without a lawyer; Manssor Arbabsiar for 12 days; and Ahmed Warsame for a month. We got Arbabsiar (and, I would bet, Warsame) to cooperate to ensnare others during the period of pre-arraignment arrest. Thus, for better or worse, civilian detention has actually been offering the government more ways to deploy detainees in intelligence operations than military detention.

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Congress and the Administration Agree: the Government Can Indefinitely Detain US Citizens

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I’ve got a long post mostly written on the debate between two awful positions on the detainee provisions in the Defense Authorization.

But let me make something clear. Both sides have already bought off on one principle: that the Administration can indefinitely detain US citizens.

Dianne Feinstein made this clear in her comments yesterday in the Senate (in which she was reading from a letter SJC and SSCI Democrats wrote).

Section 1031 needs to be reviewed to consider whether it is consistent with the September 18, 2001, authorization for use of military force, especially because it would authorize the indefinite detention of American citizens without charge or trial …..

And yet while in the rest of her speech, DiFi laid out problems she had with sections 1032 (mandating military detention in most cases), 1033 (requiring certification before DOD transfers detainees to a third country), and 1035 (giving DOD precedence in detainee decisions), she made not a peep objecting to (as opposed to raising cautions about) this ability to indefinitely detain American citizens.

In response to DiFi’s speech and the Administration’s veto threat, Carl Levin revealed that the Administration’s complaints about the language authorizing military detention don’t stem from any squeamishness about indefinitely detaining Americans. Indeed, as Levin made clear, the Administration asked that limitations on applying the section to Americans be taken out of the bill.

The committee accepted all of the Administration’s proposed changes to section 1031.  As the Administration has acknowledged, the provision does nothing more than codify existing law.  Indeed, as revised pursuant to Administration recommendations, the provision expressly “affirms” an authority that already exists.  The Supreme Court held in the Hamdi case that existing law authorizes the detention of American citizens under the law of war in the limited circumstances spelled out here, so this is nothing new.

The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”  The Administration asked that this language be removed from the bill. [my emphasis]

And given that SASC already voted to support this section by significant margins, it appears clear it has plenty of support.

So make no mistake. As I’ll show in my longer post, there are clear differences between the two sides (though I find both sides problematic). But whether or not the government can indefinitely detain Americans is not one of them.

Update: I took out “militarily,” as 1032 exempts automatic military detention for US citizens.

Eric Holder: Torture Inquiries, Ted Stevens Prosecutorial Misconduct Investigations Almost Finished

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Eric Holder is testifying before the Senate Judiciary Committee right now. [watch here]

In response to two questions from Orrin Hatch, Eric Holder revealed that the John Durham investigation into torture and the Office of Public Responsibility investigation into the prosecutorial misconduct in the Ted Stevens case are both nearing their end.

While none of the Senators asked for Holder to make the results in the torture investigation public, Hatch, Pat Leahy, and DiFi all asked for the Stevens report to be made public.

Let me predict for them what that report will say: While problematic, the behavior of DOJ’s own does not merit punishment. Love, David Margolis.

Anwar al-Awlaki Assassination: Double Secret Illegitimacy

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Frances Fragos Townsend is distraught that the media are not using the government’s euphemism for the Anwar al-Awlaki assassination.

Awalaki op was NOT assassination; nor a targeted killing; nor a hit job as media keeps describing! Was a legal capture or kill of AQ enemy.

My favorite bit is how that “captureorkill” rolls right into her tweet, a false foundation stone for the shaky logic that there’s a legal distinction between an operation in which there was never any consideration of capture, and an assassination.

But her panic that the media is not using the preferred semantics to describe the Awlaki assassination reflects a seemingly growing concern among all those who have participated in or signed off on this assassination about its perceived legitimacy.

In addition to Townsend, you’ve got DiFi and Saxby Chambliss releasing a joint statement invoking the magic words, “imminent threat,” “recruiting radicals,” and even leaking the state secret that Yemen cooperated with us on it. You’ve got Mike Rogers asserting Awlaki, “actively planned and sought ways to kill Americans.” All of these people who have been briefed and presumably (as members of the Gang of Four) personally signed off on the assassination, citing details that might support the legality of the killing.

In his effort to claim the assassination was just, Jack Goldsmith gets at part of the problem. He makes the expected arguments about what a careful process the Obama Administration uses before approving an assassination:

  • Citing Judge John Bates’ punt to the political branches on the issue, all the while claiming what Bates referred to as an “assassination” is not one
  • Arguing that killing people outside of an area against which we’ve declared war is legal “because the other country consents to them or is unable or unwilling to check the terrorist threat, thereby bringing America’s right to self-defense into play”
  • Asserting that Administration strikes “distinguish civilians from attack and use only proportionate force”

But, as Goldsmith admits,

Such caution, however, does not guarantee legitimacy at home or abroad.

And while his argument self-destructs precisely where he invokes the Administration’s claims over any real proof, Goldsmith at least implicitly admits the reason why having Townsend and Chambliss and DiFi and Rogers and himself assuring us this attack was legal is not enough to make it legitimate: secrecy.

[T]he Obama administration has gone to unusual lengths, consistent with the need to protect intelligence, to explain the basis for and limits on its actions.

[snip]

It can perhaps release a bit more information about the basis for its targeted strikes. It is doubtful, however, that more transparency or more elaborate legal arguments will change many minds, since the goal of drone critics is to end their use altogether (outside of Afghanistan). [my emphasis]

As Goldsmith’s own rationalization for the legality of this attack makes clear, the attack is only legal if Yemen consents OR is unable OR unwilling (leaving aside the question of imminence, which at least DiFi and Chambliss were honest enough to mention). So too must the attack distinguish between a civilian–perhaps someone engaging in First Amendment protected speech, however loathsome–and someone who is truly operational.

And while the government may well have been able to prove all those things with Awlaki (though probably not the imminence bit Goldsmith ignores), it chose not to.

It had the opportunity to do so, and chose not to avail itself of that opportunity.

The Administration very specifically and deliberately told a court that precisely the things needed to prove the operation was legal–whether Yemen was cooperating and precisely what Awlaki had done to amount to operational activity, not to mention what the CIA’s role in this assassination was–were state secrets. Particularly given the growing number of times (with Reynolds, Arar, Horn, al-Haramain, and Jeppesen) when the government has demonstrably invoked state secrets to hide illegal activity, the fact that the government has claimed precisely these critical details to be secret in this case only make its claims the killing was legal that much more dubious.

Critical thinkers must assume, given the government’s use of state secrets in recent years, that it invoked state secrets precisely because its legal case was suspect, at best.

Aside from John Brennan spreading state secrets, the Administration has tried to sustain the fiction that these details are secret in on the record statements, resulting in this kind of buffoonery.

Jake Tapper:    You said that Awlaki was demonstrably and provably involved in operations.  Do you plan on demonstrating —

MR. CARNEY:  I should step back.  He is clearly — I mean “provably” may be a legal term.  Read more →

DiFi’s Secret Law

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Steven Aftergood linked to this colloquy on the PATRIOT Act which reveals a lot about Ron Wyden and Mark Udall’s efforts to force the government to admit how it’s suveilling Americans. The colloquy basically puts not just the agreement, but the circumstances that went into the agreement, into the Congressional record.

After some Senatorial blathering (mostly Wyden and Udall talking about how swell DiFi is for making this agreement), DiFi starts the colloquy by describing a meeting the night before (that is, on Wednesday night) between her, Wyden, Udall, Jeff Merkley, and Sheldon Whitehouse.

Mrs. FEINSTEIN. Mr. President, I wish to thank both Senator Wyden and Senator Udall for their comments. We did have a meeting last night. We did discuss this thoroughly. The decision was that we would enter into this colloquy, so I will begin it, if I may.

These Senators and I, along with the junior Senator from Oregon, Mr. Merkley, the Senator from Colorado, Mr. Mark Udall, and the Senator from Rhode Island, Mr. Whitehouse met last night to discuss this amendment, the legal interpretation of the Foreign Intelligence Surveillance Act provisions and how these provisions are implemented.

Note the presence of Merkley and Whitehouse, which I’ll return to.

DiFi then talks about how great the collection program in question is.

I very much appreciate the strong views Senator Wyden and Senator Udall have in this area, and I believe they are raising a serious and important point as to how exactly these authorities are carried out. I believe we are also all in agreement that these are important counterterrorism authorities and have contributed to the security of our Nation.

At which point Wyden interrupts and basically says (still speaking in Senate blather, mind you), “um, no.”

Mr. President, I have enormous respect for my special friend from California, the distinguished chairwoman of the Intelligence Committee. I have literally sat next to her for more than a decade. We agree on virtually all of these issues, but this is an area where we have had a difference of opinion.

Wyden and Udall basically both then repeat their warnings about how the government is doing something with PATRIOT not explicitly supported by the law. At which point DiFi pipes up to say, alright already, I’ve conceded you have a point but don’t talk about this here! Talk about it in my secret committee!

Mrs. FEINSTEIN. Mr. President, if I may respond, I have agreed that these are important issues and that the Intelligence Committee, which is charged with carrying out oversight over the 16 various intelligence agencies of what is called the intelligence community, should be carried out forthrightly. I also believe the place to do it is in the Intelligence Committee itself.

At which point she lays out the terms of the agreement: the Senate Intelligence Committee will have a hearing on the secret law right after the Memorial Day break, and if the Committee agrees to make a fix, they will amend the Intelligence Authorization.

I have said to these distinguished Senators that it would be my intention to call together a hearing as soon as we come back from the Memorial Day break with the intelligence community agencies, the senior policymakers, and the Department of Justice to make sure the committee is comfortable with the FISA programs and to make changes if changes are needed. We will do that.

So it would be my intention to have these hearings completed before the committee considers the fiscal year 2012 intelligence authorization bill so that any amendments to FISA can be considered at that time.

The fact is, we do not usually have amendments to the intelligence authorization bill, but I believe the majority leader will do his best to secure a future commitment if such is needed for a vote on any amendment. I have not agreed to support any amendment because at this stage it is hypothetical, and we need to look very deeply into what these Senators have said and pointed out last night with specificity and get the response to it from the intelligence committee, have both sides hear it, and then make a decision that is based not only on civil liberties but also on the necessity to keep our country safe. I believe we can do that.

Note DiFi’s mention of “specificity,” which I’ll return to.

After DiFi finishes, Wyden pipes in to say that if the Intelligence Committee doesn’t decide to make a fix, then Harry Reid has promised that Wyden and Udall can introduce their amendment on a different bill, one DiFi doesn’t have control over.

Senator Udall and I have discussed this issue with Senator Reid. Senator Reid indicated to the chairwoman and myself and Senator Udall that we would have an opportunity through these hearings–and, of course, any amendments to the bill would be discussed on the intelligence authorization legislation, which is a matter that obviously has to be classified–but if we were not satisfied, if we were not satisfied through that process, we would have the ability to offer an amendment such as our original one on the Senate floor.

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The Confusion about When Hassan Ghul’s Torture Started

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In this post, I noted that John McCain seemed to be talking about Hassan Ghul when he spoke of a detainee who gave up key information on Osama bin Laden’s courier without being tortured.

It’s the other detail I find even more interesting: that info on Abu Ahmed’s real role and his real relationship with OBL came using “standard, noncoercive means.” This break in intelligence has fairly consistently been attributed to Hassan Ghul in tick tocks of the hunt for OBL. And while McCain doesn’t confirm that Ghul provided the intelligence, if he did, then consider what it probably means.

I have noted that a detainee who appears to be Ghul was held for six months–from January to August 2004–before the CIA started getting approval for his CIA-led interrogation. If the detainee who provided the key information on Abu Ahmed was Ghul and did so through noncoercive means, it means that Ghul’s interrogation before CIA got him–presumably, Ghul’s interrogation by military interrogators not using torture–yielded the key piece of information that would eventually lead to OBL. And (such a scenario would further imply) CIA insisted on taking custody and torturing him, even after he yielded information that would lead to OBL. Which might explain the legal sensitivities around Ghul’s torture, because if they got key info without torture the claims they based torture on would all be demonstrably false.

Reuters has a piece on Ghul that may accord with my earlier speculation. (h/t MadDog) They describe DiFi confirming that key information came form Ghul, but before his torture started.

Earlier this week, [Dianne] Feinstein told Reuters about a CIA detainee who “did provide useful and accurate intelligence.” But she added: “This was acquired before the CIA used their enhanced interrogation techniques against the detainee.” Three U.S. officials said Feinstein was referring to Ghul.

Reuters relies heavily on declassified CIA documents to understand Ghul’s treatment–which I assume means they’ve confirmed that the May 2005 mention of Ghul was to Hassan Ghul, and not a second Janat Ghul that may have been held in CIA custody.

But if that’s true, they seem to be missing the key documents–the August 2004 documents cited in the May 2005 documents that ask for and get approval for four more torture techniques–dietary manipulation, nudity, water dousing and abdominal slap. From those documents, we can at least presume that Ghul was being subjected to his first round of CIA interrogations between August 2 and August 25, 2004, when CIA asked for the four additional techniques (though there are other possibilities I laid out here).

Just as interesting is the paper trail discussing the CIA getting custody of a detainee–and the Principals Committee discussing the treatment of a detainee named “Ghul”–on July 2 (Jay Bybee has said that detainee was Janat Gul, but unless there’s a CIA detainee named Janat distinct from the Janat who was in Gitmo, that seems unlikely). At the Principals Committee meeting, they appear to have approved certain treatment of this Ghul, notably after the torture skeptics left the meeting.

In other words, if FOIAed documents do pertain to Hassan Ghul (and Reuters appears to suggest they do), then Ghul was likely not in CIA custody until July 2004. That is, it appears Ghul was not turned over to exclusive CIA custody until six months after he was captured. His initial torture approval came on August 2, and his second torture approval came on August 26.

So when DiFi says the key information from Ghul “was acquired before the CIA used their enhanced interrogation techniques against the detainee,” that probably also means that information was acquired before Ghul was transferred to CIA custody. That doesn’t mean CIA didn’t have access to him earlier than that, or that DOD didn’t use some kind of torture on him before then (again, see this post for some of the possibilities).

All of which has two really big possible implications.

First, that the Principals Committee–without input from key DOJ officials–approved the torture of Hassan Ghul after he had already given up vital information leading to Osama bin Laden’s location. And given that the torture approvals were always premised on the claim that a detainee wouldn’t give up information without torture, this would mean a key claim made to justify torturing Ghul appears to have been false. This would tie an illegal torture authorization directly to people like Dick Cheney, having effectively bypassed the normal DOJ approval process.

Also, this could mean that obfuscation happening here serves to hide the possibility that what we now call a CIA detainee gave up his most important information while still in DOD custody.

8 Years Ago Today, KSM Was Probably Being Waterboarded for the 179th Time

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I don’t really know precisely what days in March 2003 the CIA’s contractors waterboarded Khalid Sheikh Mohammed a total of 183 times.

But I thought about the rough timing when Dafna Linzer tweeted about this Steven Aftergood post, noting the report in the Senate Intelligence Committee’s review of what they did last Congress said they still weren’t done with their torture review.

It is nearly a decade since the Central Intelligence Agency embarked on its controversial post-9/11 program of prisoner detention and interrogation, which included “enhanced” procedures that would later be repudiated and that were widely regarded as torture.  But even now, an accurate and complete account of that episode remains unavailable.

It is more than two years since the Senate Intelligence Committee belatedly began “a study of the CIA’s detention and interrogation program.”  The Committee reported (pdf) this month that “the CIA has made available to the Committee over 4 million pages of CIA records relating to its detention and interrogation program.”

Yet the Committee said that its two year old review of the nearly decade-old program is still not complete:  “The review has continued toward the goal of presenting to the Committee, in the [current] 112th Congress, the results of the review of the extensive documentary record that has been provided to the Committee.”  There was no mention of presenting the results of the review to the public.

It seems to me we’re never going to see that report until after the 8 year statute of limitations on torture expire for everything described in the report that clearly exceeded John Yoo’s expansive interpretation of what constitutes torture. And we’re sure as hell not going to get a report on the death threats they illegally used with Abd al Rahim al-Nashiri just as DOD is about to charge him in a military commission.

But they might have to “keep working” on it for a couple more years: I’m betting the government used water “dousing” in 2004 in an illegal manner, too.

It’s a brand new kind of job security for government workers, the kind of “work” they have to do to make sure the statutes of limitation expire on the crimes they’re investigating while they’re investigating them.

Confirmed: Our Government Has Criminalized Beauty Products

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A year and a half ago, I warned that if you bought certain beauty supplies–hydrogen peroxide and acetone–you might be a terrorism suspect.

I’m going to make a wildarsed guess and suggest that the Federal Government is doing a nationwide search to find out everyone who is buying large amounts of certain kinds of beauty products. And those people are likely now under investigation as potential terrorism suspects.

Shortly thereafter, John Kyl basically confirmed that the government had been tracking certain people buying hydrogen peroxide.

Yesterday, FBI Director Robert Mueller did so in even more explicit terms.

Federal Bureau of Investigation Director Robert Mueller appeared to indicate for the first time Wednesday that his agency uses a provision of the PATRIOT Act to obtain information about purchases of hydrogren peroxide–a common household chemical hair bleach and antiseptic that can also be turned into an explosive.

The comment in passing by Mueller during a Senate Intelligence Committee hearing was noteworthy because critics have suggested that the FBI is using a provision in the PATRIOT Act to conduct broad surveillance of sales of lawful products such as hydrogen peroxide and acetone.

“It’s been used over 380 times since 2001,” Mueller said of the so-called business records provision, also known as Section 215. “It provides us the ability to get records other than telephone toll records, which we can get through another provision of the statutes. It allows us to get records such as Fedex or UPS records….or records relating to the purchase of hydrogen peroxide, or license records—records that we would get automatically with a grand jury subpoena on the criminal side, the [Section] 215 process allows us to get on the national security side.” (Emphasis original)

Emptywheel: where you read today about the civil liberties infringements your government will confirm years from now.

What Mueller didn’t confirm, but what we can pretty much conclude at this point, is that they’ve used the 215 provision to investigate as terrorists perfectly innocent (and possibly Muslim) purchasers of beauty supplies.

Recall how I first figured out the government was using Section 215 to track beauty supplies. After DiFi blabbed that they had used Section 215 in the Najibullah Zazi case, I examined the detention motion on Zazi to see what kind of evidence they used to justify refusing him bail. It included this:

Evidence that “individuals associated with Zazi purchased unusual quantities of hydrogen and acetone products in July, August, and September 2009 from three different beauty supply stores in and around Aurora;” these purchases include:

  • Person one: a one-gallon container of a product containing 20% hydrogen peroxide and an 8-oz bottle of acetone
  • Person two: an acetone product
  • Person three: 32-oz bottles of Ion Sensitive Scalp Developer three different times

The federal government argued, in part, that Zazi had to be denied bail because three people “associated with him” bought beauty supplies “in and around Aurora.”

Last February, Zazi accepted a plea agreement and has been cooperating with investigators; the government has twice delayed his sentencing, suggesting he’s still fully cooperating. Since that time, the only people arrested for participating in the actual plot–as opposed to obstructing justice by trying to hide the evidence of Zazi’s bomb-making, with which both Zazi’s father and uncle were charged–are in NY or Pakistan.

That is, it appears that Zazi had no accomplices “in and around Aurora.”

That’s particularly interesting given that Zazi is reported to have had few close ties in the Denver area. He only moved there in January 2009, 8 months before his arrest. And both his employer and the other worshipers at his mosque describe him as keeping to himself.

Unlike most drivers at ABC, who drove eight- or nine-hour shifts, Zazi routinely worked 16-to-18-hour days, often putting in as many as 80 hours a week ferrying passengers to and from DIA. “He was a regular kind of guy, but he worked hard and he wanted money,” says Hicham Semmaml, a Moroccan-born ABC driver. “I would have never suspected any of this.”

[snip]

“He kept to himself pretty much, and he never gave any outward signs of being connected with anybody,” Gross said.

[snip]

Zazi would turn up for afternoon prayers each Friday — Islam’s holy day — parking the ABC van in the parking lot outside the sprawling brick complex with its black dome and narrow minaret. Other regular worshippers agreed that he never spoke to anyone and usually rushed off immediately once the service ended.

All the currently available evidence suggests that these three Zazi “associates” buying beauty supplies turned out to be completely innocent. That would mean that one of the reasons the government said Zazi should be held without bail (there were plenty of others) basically amounts to innocent people with some attenuated tie to Zazi buying beauty supplies.

But consider what their beauty supply purchase has exposed them to–particularly if the association involved amounts to membership in the same mosque as him. Their purchase of beauty supplies undoubtedly made them a target for further investigation, presumably FBI agents asking questions of their neighbors and employers, probably the use of other PATRIOT provisions to track their calls and emails, and possibly even a wiretap.

So these three people, because they worshiped at the same mosque as Zazi or drove an airport van but presumably in the absence of any evidence of actual friendship with him had their lives unpacked by our government because they bought a couple bottles of beauty supplies.

Our Diplomats Need to Spend More Time Surfing the Toobz!

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As I noted in my last post, DiFi is accusing the intelligence community of having missed the potential volatility of Middle Eastern unrest because they’ve been paying too little attention to social media.

So I decided to check the WikiLeaks State cables to see whether DiFi’s complaint bears out.

Obviously, this is a totally insufficient test. Not only is State not the primary member of the intelligence community that should be tracking these things, we have no idea how representative the cables are of all State communication. (Though there are obviously intelligence community members working under official cover at the Embassy, and one would hope a good deal of our specialists on any particular country’s dialects are stationed in that country.) Nevertheless, it gives an idea of how attentively our Embassies track opposition viewpoints expressed in social media, and how they view social media as a source of information.

And DiFi may well be right.

There are just 14 WikiLeak cables in this database mentioning both Egypt and bloggers (out of 325 that mention Egypt) but just one–dated March 30, 2009–that talks in detail about the actual content of blogs rather than Mubarak’s persecution of them as a human rights issue. (This cable notes that bloggers and other journalists cover torture complaints and a few others refer to specific types of bloggers being persecuted.) The March 30 cable assesses,

KEY POINTS —

(C) Egypt’s bloggers are playing an increasingly important role in broadening the scope of acceptable political and social discourse, and self-expression. —

(C) Bloggers’ discussions of sensitive issues, such as sexual harassment, sectarian tension and the military, represent a significant change from five years ago, and have influenced society and the media. —

(C) The role of bloggers as a cohesive activist movement has largely disappeared, due to a more restrictive political climate, GOE counter-measures, and tensions among bloggers. —

(C) However, individual bloggers have continued to work to expose problems such as police brutality and corporate malfeasance.

[snip]

(C) Egypt has an estimated 160,000 bloggers who write in Arabic, and sometimes in English, about a wide variety of topics, from social life to politics to literature. One can view posts ranging from videos of alleged police brutality (ref B), to comments about the GOE’s foreign policy, to complaints about separate lines for men and women in government offices distributing drivers’ licenses. One NGO contact estimated for us that a solid majority of bloggers are between 20 and 35 years old, and that about 30 percent of blogs focus on politics. Blogs have spread throughout the population to become vehicles for a wide range of activists, students, journalists and ordinary citizens to express their views on almost any issue they choose. As such, the blogs have significantly broadened the range of topics that Egyptians are able to discuss publicly.

It’s not clear whether anyone at the Embassy made an independent assessment of the blogs themselves; the cable is heavily reliant on the viewpoints of at least three different sources, as well as the comments of “two young upper middle-class bloggers” and one female political blogger not identified demographically.

Meanwhile, just 5 cables mention both Facebook and Egypt (two cables appear in both searches). Two of these cables simply count the growing number of Mohamed el Baradei Facebook fans. One of them–an April 16, 2008 cable titled, “Mahalla Riots: Isolated Incident or Tip of an Iceberg?” and reviewing the April 6, 2008 events–probably should have alerted US authorities to track Facebook more closely.

(C) April 6 brought together disparate opposition forces together with numerous non-activist Egyptians, with the Facebook calls for a strike attracting 70,000 people on-line, and garnering widespread national attention. The nexus of the upper and middle-class Facebook users, and their poorer counterparts in the factories of Mahalla, craeated a new dynamic. One senior insider mused, “Who could have imagined that a few kids on the internet could foment a buzz that the entire country noticed? I wish we could do that in the National Democratic Party.”

Though the reference to the “senior insider” complaining that Egypt’s NDP couldn’t foment as much buzz as “a few kids on the internet” suggests the assessment of the importance of Facebook to the movement may have come from Egyptians, not from any analysis conducted in the Embassy itself.

Just as tellingly, most of the 7 cables on Egypt and April 6 are among those that discuss social media (that is, State knew or should have known that social media was an important tool for the April 6 movement).

Meanwhile, it’s even worse for Tunisia. Just one cable (out of 81) mentions Tunisia and either blogger or Facebook–and that’s a report on the Embassy’s own use of Facebook!

At least in the case of Egypt, the Embassy had both warning that Mubarak’s government considers bloggers enough of a threat to persecute, as well as some sense that social media has served an organizing function.

Yet even with that warning, Embassy staffers don’t appear to have spent much time learning from social media.