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Finally! That Person Who Claims Section 215 Involves Interception of Communications!

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Comey LynchFor two years, a key pushback strategy against those complaining about the phone dragnet program collecting records of every single American has been to falsely claim that opponents of the dragnet were claiming the dragnet collected content.

Of course, this was a straw man, as Mike Lee laid out brilliantly during his second speech supporting Rand Paul’s filibuster the other night.

So while it is true people point out that under section 215 of the PATRIOT Act, under this particular program, the NSA is not listening to telephone conversations. They are not listening to them.

Interestingly enough, this is very often a straw man argument that is thrown out by those who want to make sure that section 215 of the PATRIOT Act is reauthorized without any reforms. They claim that those who are opposed to this type of action are out there falsely claiming that the NSA is listening to phone calls over this program.

Well, that accusation of falsehood is, itself, false. That accusation of falsehood is, itself, a straw man effort. It is a red herring. It is a lie. It is a lie intended to malign and mischaracterize those of us who have genuine, legitimate concerns with this very program, because the fact is we don’t make that argument. The argument we are making is that the NSA doesn’t even need to do that. The NSA can tell all kinds of things about people just by looking at that data.

Because it is automated and because it is within a system thatoperates with a series of computers, they can tell very quickly it is alot less human resource-intensive than it would be if they were havingto listen to countless hours of phone conversations. It is a lot moreefficient.

Nevertheless I finally have — after two years of this debate — found someone actually suggesting that Section 215 involves the interception of communications.

Lynch Intercept

Now, to be fair, Attorney General Loretta Lynch likely misstated here. Or perhaps because she knows that the dragnet serves to identify content of interest, she may treat the two as connected (because they are to a degree program defenders like to obscure). Or maybe she is simply admitting what dragnet opponents keep arguing — that collecting metadata amounts to interception of very revealing data. [Update: As Josh Gerstein points out, she could be talking about Roving Wiretaps, which would mean CBS should not introduce this paragraph as being about the phone dragnet.]

Whatever the reason for AG Lynch to make this claim, I think it worth noting that the most prominent person suggesting that Section 215 gives “the ability to intercept communications” is the nation’s top law enforcement officer, not some dirty hippie trying to impugn the phone dragnet.

Mike Rogers Wanted to Drone Kill an American Citizen for Training with al Qaeda?

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There has been some good commentary on NYT’s story on Administration debates over killing Mohanad Mahmoud al-Farekh, the American citizen who was captured and charged in federal court on April 2, after the Administration considered but then decided against drone-killing him. Both David Cole and Brett Max Kaufman ask raise some important points and questions. Of particular note, they ask what the fuck Mike Rogers was doing pushing DOD and CIA to kill a US citizen.

Yet neither of those pieces gets to something I’m puzzling over. Al-Farekh was charged in EDNY (Loretta Lynch’s district), but he was only charged with conspiracy to commit material support for terrorism, a charge that carries a 15 year maximum sentence. Basically, he is accused of conspiring with Ferid Imam who in turn trained Najibullah Zazi and his co-conspirators for their planned 2009 attack on the NY Subway system.

In approximately 2007, Farekh, an individual named Ferid Imam and a third co-conspirator departed Canada for Pakistan with the intention of fighting against American forces.  They did not inform their families of their plan before departing, but called a friend in Canada upon arrival to let him know that he should not expect to hear from them again because they intended to become martyrs.  According to public testimony in previous criminal trials in the Eastern District of New York, in approximately September 2008, Ferid Imam provided weapons and other military-type training at an al-Qaeda training camp in Pakistan to three individuals – Najibullah Zazi, Zarein Ahmedzay and Adis Medunjanin – who intended to return to the United States to conduct a suicide attack on the New York City subway system.  Zazi and Ahmedzay pleaded guilty pursuant to cooperation agreements and have yet to be sentenced; Medunjanin was convicted after trial and sentenced to life imprisonment.  Ferid Imam has also been indicted for his role in the plot.

But the evidence laid out in the complaint is rather thin, basically amounting to the second-hand reports that al-Farekh, like Zazi and his friends, traveled to Pakistan for terrorist training.

Were we really going to kill this dude with a drone because he got terrorist training in Pakistan? That’s it?

Now, it’s quite possible the government is just charging him with the crimes the evidence for which they can introduce in a trial — though note that the government got a FISC warrant to collect on him (though it’s possible this is drone-based collection, and so sensitive enough they wouldn’t want to use it at trial).

Drones spotted him several times in the early months of 2013, and spy agencies used a warrant issued by the Federal Intelligence Surveillance Court to monitor his communications.

It’s equally possible that al-Farekh will be indicted on further charges, a more central role in plotting attacks out of the tribal lands of Pakistan. Similarly, it’s possible that al-Farekh’s High Value Interrogation Group interrogation — reported as well in this WaPo story — provided valuable intelligence on other militants that will have nothing to do with his own trial.

Still, both the earlier WaPo story (written in part by Adam Goldman, who wrote the book on the Zazi case) and the NYT story hint that the claims made about al-Farekh’s activities in 2013 have proven to be overblown. The WaPo doesn’t provide much detail.

Officials said there were questions about how prominent a role Farekh played in al-Qaeda.

The NYT provides more.

But the Justice Department, particularly Attorney General Eric H. Holder Jr., was skeptical of the intelligence dossier on Mr. Farekh, questioning whether he posed an imminent threat to the United States and whether he was as significant a player in Al Qaeda as the Pentagon and the C.I.A. described.

[snip]

Once in Pakistan, Mr. Farekh appears to have worked his way up the ranks of Al Qaeda, his ascent aided by marrying the daughter of a top Qaeda leader.

American officials said he became one of the terrorist network’s planners for operations outside Pakistan, a position that included work on the production and distribution of roadside bombs used against American troops in Afghanistan.

Some published reports have said that Mr. Farekh held the third-highest position in Al Qaeda, but Americans officials said the reports were exaggerated.

His level in the Qaeda hierarchy remains a matter of some dispute. Several American officials said that the criminal complaint against him underplayed his significance inside the terrorist group, but that the complaint — based on the testimony of several cooperating witnesses — was based only on what federal prosecutors believed they could prove during a trial.

This, then — along with the explicit connection with the Awlaki case, based as it was, at least at first, on Umar Farouk Abdulmutallab’s interrogation and all the reasons to doubt it — seems the big takeaway. We almost killed this dude, but now all we can prove is that he trained in Pakistan.

Ironically, Philip Mudd argues for the NYT that we can’t capture these people because we’d have to rely on our intelligence partners.

But many counterterrorism specialists say capturing terrorism suspects often hinges on unreliable allies. “It’s a gamble to rely on a partner service to pick up the target,” said Philip Mudd, a former senior F.B.I. and C.I.A. official.

Of course, these are often the same people we rely on for targeting intelligence, including against both Awlaki and al-Farekh. What does it say that we’d believe targeting information from allies, but not trust them to help us arrest the guys they apparently implicate?

Whatever that says, the story thus far (it could change) is that al-Farekh was almost killed on inadequate evidence because CIA and DOD were champing at the bit. That ought to be the big takeaway.

 

Have the Banks Escaped Criminal Prosecution because They’re Spying Surrogates?

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I’m preparing to do a series of posts on CISA, the bill passed out of SSCI this week that, unlike most of the previous attempts to use cybersecurity to justify domestic spying, may well succeed (I’ve been using OTI’s redline version which shows how SSCI simply renamed things to be able to claim they’re addressing privacy concerns).

But — particularly given Richard Burr’s office’s assurances this bill is great because “business groups like the Financial Services Roundtable and the National Cable & Telecommunications Association have already expressed their support for the bill” — I wanted to raise a question I’ve been pondering.

To what extent have banks won themselves immunity by serving as intelligence partners for the federal government?

I ask for two reasons.

First, when asked why she, along with Main Justice’s Lanny Breuer, authorized the sweetheart deal for recidivist transnational crime organization HSBC, Attorney General nominee Loretta Lynch implied that there was insufficient admissible evidence to try any individuals associated with this recidivism.

I and the dedicated career prosecutors handling the investigation carefully considered whether there was sufficient admissible evidence to prosecute an individual and whether such a prosecution otherwise would have been consistent with the principles of federal prosecution contained in the United States Attorney’s Manual.

That’s surprising given that Carl Levin managed to come up with 300-some pages of evidence. Obviously, there are several explanations for this response: she’s lying, the evidence is inadmissible because HSBC provided it willingly thereby making it unusable for prosecution, or the evidence was collected in ways that makes it inadmissible.

It’s the last one I’ve been thinking about: is it remotely conceivable that all the abundant evidence against banksters their regulators have used to obtain serial handslaps is for some reason inadmissible in a criminal proceeding?

I started thinking about that as a real possibility when PCLOB revealed that Treasury’s Office of Intelligence and Analysis has never once — not in the 30-plus years since Ronnie Reagan told them they had to — come up with minimization procedures to protect US person privacy with data collected under EO 12333. Maybe that didn’t matter so much in 1981, but since 2004, Treasury has had an ever-increasing role in using intelligence (collected from where?) to impose judgments against people with almost no due process. And those judgements are, in turn, used to impose other judgments on Americans with almost no due process.

The thing is, you’d think banks might care that Treasury wasn’t complying with Executive Branch requirements on privacy protection. Not only because they care (ha!) about their customers, whether American or not, but because many of them are, themselves, US persons. US bank US person status should limit how much Treasury diddles with bank-related intelligence, but Treasury doesn’t appear bound by that.

Which leads me to suspect, at least, that there’s something in it for the banks, something that more than makes up for the serial handslaps for sanctions violations.

And one possibility is that because of the way this data is collected and shared, it can’t be used in a trial. Voila! Bank immunity.

All that’s just a wildarsed guess.

But one made all the more pressing given that Treasury is among the Appropriate Federal Entities that will be default intelligence recipients for cyber information under CISA.

(3) APPROPRIATE FEDERAL ENTITIES.—

The term ‘‘appropriate Federal entities’’ means the following:

(A) The Department of Commerce.

(B) The Department of Defense.

(C) The Department of Energy.

(D) The Department of Homeland Security.

(E) The Department of Justice.

(F) The Department of the Treasury.

(G) The Office of the Director of National Intelligence.

To some degree, this is not in the least bit surprising. After all, financial regulators have increasingly made cybersecurity a key regulatory concern of late, so it makes sense for Treasury to be in the loop.

But banksters rarely — never! — add regulatory exposure for themselves without a fight and, as Burr’s office has made clear, the banks love this bill.

One more datapoint, back to HSBC. As I noted when Lanny Breuer and Loretta Lynch announced that handslap, Breuer neglected to mention that HSBC was getting a handslap not just for helping cartels profit off drugs, but also helping terrorists fund their activities (at the time Pete Seda was being held without bail on charges the government insisted amounted to material support for terrorists for handing a check to Chechens using cash that had come indirectly from HSBC). The actual settlement, however, made mention of it by explaining that HSBC had “assisted the Government in investigations of certain individuals suspected of money laundering and terrorist financing.” By dint of that cooperation, in other words, HSBC went from being a material supporter of terrorism to being a deputy financial cop. And Breuer expanded that notion of banks serving as deputized financial cops thereafter.

Are the methods and terms by which we’re collecting all this financial intelligence to use against some bad guys precisely what prevents us from holding the even bigger bad guys — the ones affecting far more of us directly, in the form of the houses we own, the towns we live in, the opportunity costs paid to financial crime — accountable?

And will this system now be replicated under CISA (or has it, already) as banks turn into cyber crime deputized cops?

Loretta Lynch Is A Dubious Nominee For Attorney General

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CryingJusticeLoretta Lynch is an excellent nominee for Attorney General, and her prior actions in whitewashing the blatant and rampant criminality of HSBC should not be held against her, because she didn’t know that at the time she last whitewashed that criminal enterprise, right?

No. Nothing could be further from the truth.

This is a cop out by Lynch’s advocates. Lynch either knew, or damn well should have known. She signed off on the HSBC Deferred Prosecution Agreement (DPA), if she was less than fully informed, that is on her. That is what signing legal documents stands for….responsibility. Banks like HSBC, Credit Suisse, ING etc were, and still are, a cesspool of criminal activity and avoidance schemes. Willful blindness to the same old bankster crimes by Lynch doesn’t cut it (great piece by David Dayen by the way).

But, all the above ignores the Swiss Alps sized mountains of evidence that we know Lynch was aware of and blithely swept under the rug by her HSBC DPA. So, we are basically left to decide whether Lynch is a bankster loving toady that is her own woman and cravenly whitewashed this all on her own, or whether she is a clueless stooge taking orders to whitewash it by DOJ Main. Both views are terminally unattractive and emblematic of the oblivious, turn the other cheek to protect the monied class, rot that infects the Department of Justice on the crimes of the century to date.

And that is only scratching the real surface of my objections to Lynch. There are many other areas where Lynch has proven herself to be a dedicated, dyed in the wool “law and order adherent” and, as Marcy Wheeler artfully coined, “executive maximalist”. Lynch’s ridiculous contortion, and expansion, of extraterritorial jurisdiction to suit the convenient whims of the Obama Administration’s unparalleled assault on the Rule of Law in the war on terror is incredibly troubling. Though, to be fair, EDNY is the landing point of JFK International and a frequent jurisdiction by designation. Some of these same questions could have been asked of Preet Bharara (see, e.g. U.S. v. Warsame) Loretta Lynch has every bit the same, if not indeed more, skin in the game as Bharara, whether by choice or chance.

Lynch has never uttered a word in dissent from this ridiculous expansion of extraterritorial jurisdiction. Lynch’s record in this regard is crystal clear from cases like US v. Ahmed, Yousef, et. al. where even Lynch and her office acknowledged that their targets could not have “posed a specific threat to the United States” much less have committed specific acts against the US.

This unconscionable expansion is clearly all good by Lynch, and the ends justify the means because there might be “scary terrists” out there. That is just dandy by American “executive maximalists”, but it is toxic to the Rule of Law, both domestically and internationally (See, supra). If the US, and its putative Attorney General, are to set precedents in jurisdictional reach on common alleged terroristic support, then they ought live by them on seminal concerns like torture and war crimes under international legal norms. Loretta Lynch has demonstrated a proclivity for the convenience of the former and a toady like disdain for the latter.

And the same willingness to go along to get along with contortion of the Rule of Law in that regard seems beyond certain to extend to her treatment of surveillance issues and warrant applications, state secrets, over-classification, attack on the press and, critically, separation of powers issues. Those types of concerns, along with how the Civil Rights Division is utilized to rein in out of control militarized cops and voting rights issues, how the OLC stands up to Executive overreach, whether OPR is allowed to continue to shield disgraceful and unethical AUSAs, and whether she has the balls to stand up to the infamously insulated inner Obama circle in the White House. Do you really think Loretta Lynch would have backed up Carolyn Krass and OLC in telling Obama no on the Libyan War Powers Resolution issue?

For my part, I don’t think there is a chance in hell Lynch would have stood up to Obama on a war powers, nor any other critical issue, and that is a huge problem. Krass and Holder may have lost the Libyan WPR battle, but at least they had the guts to stand up and say no, and leave a record of the same for posterity.

That is what really counts, not the tripe being discussed in the press, and the typically preening clown show “hearing” in front of SJC. That is where the rubber meets the road for an AG nominee, not that she simply put away some mobsters and did not disgrace herself – well, beyond the above, anyway (which she absolutely did) – during her time as US Attorney in EDNY. If you are a participant in, or interested observer of, the criminal justice system as I am, we should aspire to something better than Eric Holder. Holder may not have been everything hoped for from an Obama AG when the Administration took office in January of 2009, but he was a breath of fresh air coming off the AG line of the Bush/Cheney regime. Loretta Lynch is not better, and is not forward progress from Holder, indeed she is several steps down in the wrong direction. That is not the way to go.

The fact that Loretta Lynch is celebrated as a great nominee by not just Democrats in general, but the so called progressives in specific, is embarrassing. She is absolutely horrible. If Bush had put her up for nomination, people of the progressive ilk, far and wide, would be screaming bloody murder. Well, she is the same person, and she is a terrible nominee. And that does not bode well for the Rule of Law over the remainder of the Obama Administration.

And this post has not even touched on more mundane, day to day, criminal law and procedure issues on which Lynch is terrible. And horrible regression from Eric Holder. Say for instance pot. Decriminalization, indeed legalization, of marijuana is one of the backbone elements of reducing both the jail and prison incarceration rate, especially in relation to minorities. Loretta Lynch is unconscionably against that (See, e.g., p. 49 (of pdf) et. seq.). Lynch appears no more enlightened on other sentencing and prison reform, indeed, she seems to be of a standard hard core prosecutorial wind up law and order lock em up mentality. Lynch’s positions on relentless Brady violations by the DOJ were equally milquetoast, if not pathetic (See, e.g. p. 203 (of pdf) et. seq.). This discussion could go on and on, but Loretta Lynch will never come out to be a better nominee for Attorney General.

Observers ought stop and think about the legal quality, or lack thereof, of the nominee they are blindly endorsing. If you want more enlightened criminal justice policy, to really combat the prison state and war on drugs, and to rein in the out of control security state and war on terror apparatus, Loretta Lynch is a patently terrible choice; we can, and should, do better.

Loretta Lynch: Not Enough Evidence to Charge HSBC Banksters

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As part of her Questions for the Record, Attorney General nominee Loretta Lynch was asked about her role in the HSBC handslap in 2012. (See Q 38, h/t Katherine Hawkins)

38. As United States Attorney for the Eastern District of New York, you helped secure nearly $2 billion from HSBC over its failure to establish proper procedures to prevent money laundering by drug cartels and terrorists. You were quoted in a DOJ press release saying, “HSBC’s blatant failure to implement proper anti-money laundering controls facilitated the laundering of at least $881 million in drug proceeds through the U.S. financial system.”

You stated that the bank’s “willful flouting of U.S. sanctions laws and regulations resulted in the processing of hundreds of millions of dollars in [Office of Foreign Assets Control]-prohibited transactions.” Still, no criminal penalties have been assessed for any executive who may have been involved.

a. Did you make any decision or recommendation on charging any individual with a crime?

i. If so, please describe any and all decisions or recommendations you made.

ii. Please explain why such decisions or recommendations were made.

b. If you did not make any decision or recommendation on charging any individual with a crime, who made the decision not to prosecute?

RESPONSE: On December 11, 2012, the Department filed an information charging HSBC Bank USA with violations of the Bank Secrecy Act and HSBC Holdings with violating U.S. economic sanctions (the two entities are collectively referred to as “HSBC”). Pursuant to a deferred prosecution agreement (“DPA”), HSBC admitted its wrongdoing, agreed to forfeit $1.256 billion, and agreed to implement significant remedial measures, including, among other things, to follow the highest global anti-money laundering standards in all jurisdictions in which it operates. As the United States District Judge who approved the deferred prosecution found, “the DPA imposes upon HSBC significant, and in some respect extraordinary, measures” and the “decision to approve the DPA is easy, for it accomplishes a great deal.” Although grand jury secrecy rules prevent me from discussing the facts involving any individual or entity against whom we decided not to bring criminal charges, as I do in all cases in which I am involved, I and the dedicated career prosecutors handling the investigation carefully considered whether there was sufficient admissible evidence to prosecute an individual and whether such a prosecution otherwise would have been consistent with the principles of federal prosecution contained in the United States Attorney’s Manual.

I want to reiterate, particularly in the context of recent media reports regarding the release of HSBC files pertaining to its tax clients, that the Deferred Prosecution Agreement reached with HSBC addresses only the charges filed in the criminal violations of the Bank Secrecy Act for failures to maintain an adequate anti-money laundering program and for sanctions violations. The DPA explicitly does not provide any protection against prosecution for conduct beyond what was described in the Statement of Facts. Furthermore, I should note the DPA explicitly mentions that the agreement does not bind the Department’s Tax Division, nor the Fraud Section of the Criminal Division. information, which are limited to violations of the Bank Secrecy Act for failures to maintain an adequate anti-money laundering program and for sanctions violations. The DPA explicitly does not provide any protection against prosecution for conduct beyond what was described in the Statement of Facts. Furthermore, I should note the DPA explicitly mentions that the agreement does not bind the Department’s Tax Division, nor the Fraud Section of the Criminal Division. [my emphasis]

Lynch seems to want to have her cake and eat it too.

Sure, she and her prosecutors were unable to find the evidence in Carl Levin’s gift-wrapped case. But trust her, she seems to be saying, she might one day see fit to charge some warm bodies with fraud if she’s confirmed.

And note she makes no mention of material support for terrorism????

Because if you’re a bank, such things are legal, apparently.