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We Request to Inform You that You Inform Us We Killed Another Drone Target

I want to follow-up on Jim’s latest drone post–and go back to Greg Miller’s article on drones–to look at the the approval process. A lot of readers of Miller’s article noted this passage, revealing that JSOC continues to avoid the kind of (minimal) oversight that CIA gets.

There is no comparable requirement in Title 10, and the Senate Armed Services Committee can go days before learning the details of JSOC strikes.

But read the whole passage in context.

Within 24 hours of every CIA drone strike, a classified fax machine lights up in the secure spaces of the Senate Intelligence Committee, spitting out a report on the location, target and result.

The outdated procedure reflects the agency’s effort to comply with Title 50 requirements that Congress be provided with timely, written notification of covert action overseas. There is no comparable requirement in Title 10, and the Senate Armed Services Committee can go days before learning the details of JSOC strikes.

Neither panel is in position to compare the CIA and JSOC kill lists or even arrive at a comprehensive understanding of the rules by which each is assembled.

The senior administration official said the gap is inadvertent. “It’s certainly not something where the goal is to evade oversight,” the official said. A senior Senate aide involved in reviewing military drone strikes said that the blind spot reflects a failure by Congress to adapt but that “we will eventually catch up.”

The disclosure of these operations is generally limited to relevant committees in the House and Senate and sometimes only to their leaders. Those briefed must abide by restrictions that prevent them from discussing what they have learned with those who lack the requisite security clearances. The vast majority of lawmakers receives scant information about the administration’s drone program.

In addition to the long-standing problem of JSOC avoiding oversight (and, implicitly, that this notice apparently comes after the fact, when CIA sends a fax over, which is a little late for the Intelligence Committees to weigh in, IMO), Miller lays out the following:

  • No one–not the intelligence committees or even the Gang of Four–gets enough insight into the drone programs to understand how JSOC’s practices differ from CIA’s (this is consistent with what the Gang of Four said about Anwar al-Awlaki’s killing, given that they said they never saw the kill lists)
  • As is typical, the intelligence committee overseers can’t share information from briefings with their colleagues not read into the program (this is how the Bush Administration gutted intelligence committee oversight of the torture and illegal wiretap programs)

But don’t worry, a senior Administration official says, this time, this secrecy is not designed specifically to avoid oversight.

Apparently, this SAO’s interlocutors don’t agree, because the WSJ’s Adam Entous and Siobhan Gorman have a similar story out today, just three days after Miller’s, quoting “current and former administration, military and congressional officials” complaining about oversight gaps.

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

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.

DOJ Lies about Its FOIA Lies

Patrick Leahy just released a letter DOJ sent him and Chuck Grassley regarding DOJ’s effort to formalize their practice of lying in response to some FOIA requests. Now, Leahy claims the government has withdrawn its proposed rule–which I think overstates what DOJ has done.

I commend Attorney General Holder and the Obama administration for promptly withdrawing the Department’s proposed rule on the treatment of requests for sensitive law enforcement records under the Freedom of Information Act.  For five decades, the Freedom of Information Act has given life to the American value that in an open society, it is essential to carefully balance the public’s right to know and government’s need to keep some information secret.  The Justice Department’s decision to withdraw this proposal acknowledges and honors that careful balance, and will help ensure that the American people have confidence in the process for seeking information from their government. [my emphasis]

While the letter does say,

We believe that Section 16.6(f)(2) of the proposed regulations falls short by those measures [I think this refers to DOJ’s promise of transparency, but it’s not entirely clear], and we will not include that provision when the Department issues final regulations.

It also speaks conditionally of making changes to the practice itself.

Having now received a number of comments on the Department’s proposed regulations in this area, the Department is actively considering those comments and is reexamining whether there are other approaches to applying exclusions that protect the vital law enforcement and national security concerns that motivated Congress to exclude certain records from the FOIA and do so in the most transparent manner possible.

[snip]

That reopened comment period has recently concluded, and the Department is now in the process of reviewing those submissions. We are also taking a fresh look internally to see if there are other options available to implement Section 552(e)’s requirements in a manner that preserves the integrity of the sensitive law enforcement records at stake while preserving our continued commitment to being as transparent about that process as possible. [my emphasis]

In other words, DOJ has only committed to taking the language about exclusions out of the rule, not to changing the practice on exclusions it has followed for 20 years. It’s only going to make a change in the practice if it can find some new practice that works as well.

And there’s reason to doubt DOJ’s overall good faith with this letter. That’s because they claim their approach to exclusions “never involved ‘lying’.”

While the approach has never involved “lying,” as some have suggested, the Department believes that past practice could be made more transparent.

That’s an out and out “lie” (I’m guessing that DOJ thinks those scare quotes make “lie” mean something other than what we think it means). As Judge Cormac Carney laid out in his ruling on this practice, the government “lied” to him about what FBI documents existed on CAIR.

The Government previously provided false and misleading information to the Court. The Government represented to the Court in pleadings, declarations, and briefs that it had searched its databases and found only a limited number of documents responsive to Plaintiffs’ FOIA request and that a significant amount of information within those documents was outside the scope of Plaintiffs’ FOIA request. The Government’s representations were then, and remain today, blatantly false. As the Government’s in camera submission makes clear, the Government located a significant number of documents that were responsive to Plaintiffs’ FOIA request. Virtually all of the information within those documents is inside the scope of Plaintiffs’ FOIA request. The Government asserts that it had to mislead the Court regarding the Government’s response to Plaintiffs’ FOIA request to avoid compromising national security. The Government’s argument is untenable. The Government cannot, under any circumstance, affirmatively mislead the Court.

And the letter’s claim that this process “never” involved “lying” is all the more suspect given that DOJ tells a “lie” in this letter. It says,

These practices laid out in Attorney General Meese’s memo have governed Department practice for more than 20 years.

But Meese’s memo envisioned judicial review.

Accordingly, it shall be the government’s standard litigation policy in the defense of FOIA lawsuits that wherever a FOIA plaintiff raises a distinct claim regarding the suspected use of an exclusion, the government routinely will submit an in camera declaration addressing that claim, one way or the other. Where an exclusion was in fact employed, the correctness of that action will be justified to the court. Where an exclusion was not in fact employed, the in camera declaration will simply state that fact, together with an explanation to the judge of why the very act of its submission and consideration by the court was necessary to mask whether that is or is not the case. [my emphasis]

DOJ, by “lying” to Carney (and probably a slew of other judges over the years) evaded any judicial review of its use of exclusions. DOJ was actually going beyond what even corrupt old Ed Meese laid out!

And then, if there were any doubt of DOJ’s bad faith here, there’s this:

As you know, the initial comment period on these regulations closed earlier this year, with no public comment on the provisions in question. As a result, however, of this Administration’s commitment to openness, the Department reopened the comment period on these regulations precisely so that it could receive additional input.

The reason they got no comments in the first period, of course, is that they snuck through the rule just before Carney would make his ruling public.

March 21, 2011: Government first issues its rule on lying in FOIA

March 30, 2011: The 9th rules that Carney may only release a redacted version of his opinion

April 20, 2011: Original end of comment period for rule

April 27, 2011: Carney releases his redacted opinion, including a link to the Ed Meese memo on which the government relied

That is, they only opened the second comment period because they got caught pulling a fast one, trying to push through the rule before the risks behind the rule became apparent.

Which is probably what they’re doing here.

Of course they have to change the rule now. That’s because every denial must now be assumed to be a “lie” which can only be exposed by litigating the issue. The rule is going to lead to a lot more FOIA lawsuits.

So in addition to assuming that they’re “lying” in response to FOIA requests, it’s probably safe to assume they’re misleading with their suggestion that because they’re going to take this practice out of their rule, they’re ending the practice.

Patrick Leahy in Big Rush to Reconfirm the Guy Who Won’t Solve Leahy’s Attempted Murder

By now, it should be clear that, contrary to their claims, the FBI has not solved the anthrax killings. Sure, Bruce Ivins can’t be ruled out as having been involved. But the FBI has offered no plausible explanation for the following:

  • How a small sample of anthrax from Ivins’ flask was cultured into at least two larger samples of anthrax with a number of materials added
  • How those samples were dried
  • When that happened and how long that took
  • How and why the anthrax got sent from Princeton (I consider the KKG story implausible)
  • Why Leahy and Daschle were targeted

The FBI hasn’t even offered an explanation for several of these questions (they’ve offered weak explanations for the Princeton mailing and the Leahy and Daschle targeting).  And yet, based largely on Bruce Ivins’ long hours in a lab that was not amenable to producing the anthrax used in the attack, the FBI insists he’s the culprit (his lab hours are close to being an alibi at this point).

Which is why Patrick Leahy’s push to reconfirm Robert Mueller–particularly Leahy’s citation of urgency surrounding the 9/11 anniversary (which after all means the 10 year anniversary of the unsolved anthrax attack is approaching as well)–is so odd. In comments on the Senate floor on Monday, Leahy pressured Rand Paul to release his hold on Mueller’s reconfirmation.

“There is no good reason for delay. At first it was reportedly Senator Coburn who was holding up consideration of the bill, then Senator DeMint, and now apparently it is an objection by Senator Paul of Kentucky that is preventing the Senate from proceeding. This sort of delay is inexplicable and inexcusable.”

Leahy continued, “Given the continuing threat to our Nation, especially with the tenth anniversary of the September 11, 2001, attacks approaching, and the need to provide continuity and stability on the President’s national security team, it is important that we respond to the President’s request and enact this necessary legislation swiftly. I urge the Senate to take up this critical legislation and pass it without further delay.”

We’ve gotten the people behind 9/11. We have not yet gotten the people behind a government-connected terrorist attack on its own people. And yet Leahy–one target of that attack–is unquestioningly pushing the guy who refuses to solve the case (much less allow an independent review of the FBI’s investigation into it) for two more years.

Leahy’s pressure on Paul is all the more weird considering that Leahy, with his support for PATRIOT Act improvements in the past, has basically ceded the legitimacy of a number of the questions Paul wants answered before Mueller is reconfirmed, notably those about how the PATRIOT Act is used and abused.

I don’t often think Rand Paul is smarter than Patrick Leahy, but in this case, Leahy’s rush to reconfirm Mueller without asking any questions or getting any commitments on these issues is “inexplicable and inexcusable,” not Paul’s efforts to exercise a tiny bit of oversight.

The Six FBI Reports Treating Merton Center Anti-War Activism as Terrorism

Glenn Fine–DOJ’s Inspector General–is usually one of the most credible agents of oversight in the federal government. But his last report–examining whether the FBI investigated the First Amendment activities of lefty groups as terrorism–is a masterpiece of obfuscation. It manages to look at three different investigative efforts of the Thomas Merton Center’s anti-war activism, all treated as terrorism, and declare them unconnected and therefore not evidence that during the Bush Administration anti-war activism was investigated as terrorism.

The coverage of the report has largely focused on Robert Mueller’s reportedly unintentional lies to Congress explaining why an anti-war event sponsored by Pittsburgh’s Thomas Merton Center was investigated in the guise of international terrorism. For good examples, see Charlie Savage and Jeff Stein’s versions of the story.

The short version of Meuller’s misinformation to Congress the report offers is that 1) a rookie FBI officer was sent out as make-work to improperly surveil a peace protest, 2) after that became clear through FOIA, his boss and a lawyer in the office and the FBI’s Counterterrorism Division tried to retroactively invent reasons for the surveillance, 3) largely through the bureaucratic game of telephone that resulted, Robert Mueller (and in more significant ways, a response to a Patrick Leahy Question For the Record) provided false information to Congress.

One cornerstone to this rather credulous narrative is the way the IG Report treats the surveillance of Pittsburgh’s Thomas Merton Center. Rather than treat all the surveillance of the center together–which would reveal an obvious pattern and much better reason to lie to Congress–the report treats  several different iterations of surveillance separately. As a result, Fine was able to look at at least six reports treating Merton Center anti-war activism as terrorism (and ignore one more FBI investigative effort) and declare each of them acceptable.

The Chronology of FBI’s Thomas Merton Center Surveillance

Let’s start with the timeline (note all the names, except that of Farooq Hussaini, are pseudonyms chosen by DOJ IG, as reflected by the quotation marks) which shows fairly sustained surveillance of the Center over the course of three years:

November 29, 2002: Supervisory Special Agent “Susan Crosetti” sends rookie FBI officer “Mark Berry” to surveil people associated with the Thomas Merton Center distributing leaflets opposing the Iraq War. Berry takes photos of some participants. The report recording the surveillance is placed in the “international terrorism” file.

January 2003: Secret Service agent visits Merton Center to discuss upcoming protest in Pittsburgh.

February 26, 2003: Pittsburgh office produces Letterhead Memorandum, titled “International Terrorism Matters,” describing a vigil the Merton Center was planning for when the Iraq War started, as well as local events that had taken place on February 15, 2003 in association with the NY-based United for Peace and Justice sponsored protest.

April 4, 2003: FBI produces EC on Pittsburgh organizational meeting at the Merton Center in advance of Miami FTAA.

July 8, 2003: FBI EC describes threats that FTAA protesters would use puppets to attack riot police and Molotov cocktails.

July 10, 2003: First document recording ties between Person B (alleged to have pro-Palestinian feelings) and the Merton Center (note, this document must have been withheld from the FOIA).

July 21, 2003: Miami Field Office opens domestic terrorism investigation in relation to the FTAA protests.

July 25, 2003: Miami Field Office sends EC to Pittsburgh Field Office on August 29-31 planning meeting for FTAA including Merton Center.

July 26, 2003: FBI designates FTAA a Special Event worthy of heightened surveillance.

August 29-31, 2003: FBI conducts research on FTAA planning meeting at Merton Center in Pittsburgh.

October 29 (?), 2004: First report from confidential source mentioning the Merton Center (all these reports were faxed on July 8, 2005 and declassified on January 4, 2006). The source was apparently the friend of an agent’s son, and included reporting on planning for an anti-war march the Merton Center was planning. The source was purportedly recruited for an investigation into several alleged members of the Pittsburgh Organizing Group; that investigation was a terrorism investigation.

February 25, 2005: Second report from confidential source on the Merton Center.

March 1, 2005: Third report from confidential source on the Merton Center.

March 19, 2005: Fourth report from confidential source on the Merton Center.

Unknown date (before May 18, 2005): FBI agent visits Merton Center intern at intern’s residence asking for information about Merton Center activities.

May 18, 2005: ACLU PA FOIAs FBI documents referencing the Thomas Merton Center (among others).

Unknown date, 2006: Pittsburgh’s Chief Division Counsel reviews the source reporting (and two earlier anti-war reports) and tells agent to close the source.

January 23, 2006: “Carl Fritsch,” a member of Pittsburgh FBI’s legal staff, and Crosetti, both search FBI databases on Farooq Hussaini’s name.

February 1, 2006: National ACLU files FOIA.

February 8, 2006: FBI Field Division Attorney “Stanley Kempler” sends Record Management Division a routing slip, written by “Carl Fritsch,” indicating that the November 29, 2002 surveillance had been directed at Farooq Hussaini and alleging that Hussaini was associated with “Person B” who was the subject of a different investigation. This routing slip was–in the IG Report’s judgment–the first attempt to invent a cover story for the November 2002 surveillance. The same slip provided background on the February 26, 2003 and urged RMD not to release it.

March 14, 2006: ACLU releases FOIA documents, focusing on November 29, 2002 report; FBI issues a press release see PDF 205) inventing a public rationale for the surveillance and purporting to address the February 26, 2003 report.

March 22, 2006: FBI Director’s Research Group writes document “ACLU Allegations of Spying.”

May 2, 2006: Patrick Leahy asks Robert Mueller why FBI was surveilling anti-war demonstrators.

“Soon after” hearing: Leahy asks several Questions For the Record, including for any “earlier investigative memos” that served as the basis for the November 2002 surveillance.

May 16, 2006: Counterterrorism Division’s Executive Staff tasks “Clarence Parkman,” from their Iraq Unit, to draft a response to Leahy. Minutes earlier, Parkman had done a database search on Thomas Merton Center. Two analytical employees in the Iraq section emailed Kempler (cc’ing Berry) for more information. Kempler forwarded the request to Crosetti.

June 5, 2006: Iraq Unit of Counterterrorism Division provides 3-paragraph response to Leahy’s question about November 2002 anti-war rally newly claiming that Person B was the subject of the surveillance. The response also claims–contrary to the description in the original EC but corresponding to story Berry first told to IG–that Berry took pictures of just one, female, protester.

The IG presents this series of surveillance actions directed at the Merton Center as discrete events. It attempts to find an explanation for each incident of surveillance in isolation, and as such, is able to describe each as legally permissible, leaving only the attempt to retroactively invent an explanation for the November 2002 surveillance as really problematic.

But examining the other reports makes it clear that there was a pattern of investigating the Merton Center’s anti-war activities under the guise of terrorism.

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More Missing Emails at DOJ?

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.

The 390 Terrorists Convicted in Civilian Courts

The Department of Justice has just sent a letter to the Senate Judiciary Committee answering early questions about how many terrorists have been convicted or plead guilty in civilian courts. Between those convicted of terrorism-related crimes (150) and individuals with ties to international terrorism convicted of other crimes (like obstruction or perjury–the total here is 240), 390 people have been sent to prison using our civilian courts.

As you might recall, there has been some debate over what the “real” number of terrorists convicted in civilian courts is. After the Obama Administration used the same number the Bush Administration had–a number which combines terrorist charges with non-terrorist charges–Republicans squawked.

But as DOJ points out, having other charges available is one of the advantages to the civilian courts:

The second category includes a variety of other statutes (like fraud, firearms offenses, false statements, or obstruction of justice) where the investigation involved an identified link to international terrorism. There have been more than 240 individuals charged in such cases since September 11, 2001. Examples of the international terrorism nexus identified in some of these cases have also been provided for your review.Prosecuting terror-related targets using these latter offenses is often an effective method—and sometimes the only available method—of deterring and disrupting potential terrorist planning and support activities. Indeed, one of the great strengths of the criminal justice system is the broad range of offenses that are available to arrest and convict individuals believed to be linked to terrorism, even if a terrorism offense cannot be established. Of course, an aggressive and wide-ranging terrorism investigation will net individuals with varying degrees of culpability and involvement in terrorist activity, as the NSD chart reflects. Arresting and convicting both major and minor operatives, supporters, and facilitators can have crippling effects on terrorists’ ability to carry out their plans. [my emphasis]

This is a point David Kris made in Congressional testimony last year–there are actually charges you can’t use in a military commission but which you can use in a civilian court (though the Obama Administration appears prepared to press the limits of MCs anyway).

The list of terrorists convicted itself is interesting in its own right. Among other things, it demonstrates the degree to which terrorism is still largely–though not exclusively–targeted at Muslims (though in the first page itself there are individuals tied to the Tamil Tigers and one woman from FARC who was quietly rounded up last year after the Ingrid Betancourt rescue).

Not on this list? Right-wing American terrorists like Scott Roeder.

“We all benefited” from Margolis’ tenure

A bunch of former DOJ bigwigs just wrote a seemingly pointless letter to Pat Leahy to assure him that David Margolis does not have a partisan–and they mean Left-Right partisan–bias. (h/t Main Justice)

I say “pointless,” to begin with, because after last Friday’s flaccid hearing on the OPR report, is anyone actually imagining that Pat Leahy is going to make a stink because the OPR Report got spiked?

And besides, no one thinks Margolis is a flaming political partisan. He’s a DOJ partisan, always putting the Department first, even ahead of justice. Hearing from a bunch of former DOJ bigwigs claiming he has no bias isn’t going to allay those concerns.

What’s particularly pathetic about this document, though, is the number people with a vested interest making the following weak claims:

we all benefited during our tenures from the wise counsel and good judgment of David Margolis

[snip]

While we do not comment here on the merits of the decision regarding the discipline of John Y00 and Jay Bybee, we are certain that it was reached conscientiously and wholly without partisan purposes.

[snip]

As those who have benefited from David Margolis’s counsel, we know he remains a great asset to the Department and the country for the present and future.

Let’s start with Alberto Gonzales, who gave approval for the use of torture techniques long before OLC did, and who was therefore perhaps the person most in need of the Get Out of Jail Free card that John Yoo wrote him. He signed this document.

So did George Terwilliger, Alberto Gonzales’ defense attorney, representing him on a number of ethical and potentially criminal issues, and therefore, presumably, on torture, if it ever came to that.

There’s Michael Mukasey, about whom Mary wrote a 2,000 word post describing his many conflicts on this issue. And Mark Filip, who helped Mukasey try to spike this report from the start. And Craig Morford, who was Acting DAG when Mukasey reviewed the Steven Bradbury memos and found them reasonable, which was itself a key part of spiking this investigation.

And how about John Ashcroft, huh? He wants you to know that he’s sure that Margolis judged correctly when Margolis determined that Ashcroft’s subordinates did not willfully do wrong when they shredded the Constitution eight years ago under Ashcroft’s inattentive watch. The same Ashcroft who reportedly pushed for some kind of “advance pardon” for the torturers. I sure trust him to tell me whether Margolis judged rightly or wrongly.

Then there’s Paul McNulty who, as US Attorney for Eastern District of VA, declined to charge people who engaged in torture and murder pursuant to these memos. The same guy whose decision to decline prosecution was reconsidered, given all the damning evidence in the OPR Report. Do you honestly believe that McNulty doesn’t want to have his decisions–which shortly preceded his promotion to be Deputy Attorney General–scrutinized that closely?

There’s Jim Comey, who may be one of those refusing to comment on the merits of the decision here (well then, why comment?), but who, when he lost the battle on the torture memos, expressed sadness “for the Department and the AG.” But not, it should be said, for the rule of law.

Add in Larry Thompson, who is another of the lawyers who, at least according to the OPR Report, reviewed and approved of the Bybee Memos. He thinks Margolis did the right thing too.

And, finally, David Ogden, who got fired not long ago, perhaps because he was happy to put politics above the law.

Now I’ll leave it for comments to unpack why people like lobbyist hack Jamie Gorelick wants to boost Margolis. But for now, just know that when at least 10 of these 17 bigwigs say they benefited from Margolis’ “wise counsel and good judgment,” they may well be talking about personal–and significant–benefit.

AG Holder Oversight Hearing

You can follow along on the Committee stream or CSPAN3.

Leahy: Using full range of authorities to fight extremists [must be an attack against Crazy Pete]. After nearly 8 years of delay, may finally be moving forward to bring to justice the perpetrators. Great faith in prosecutors, judges, juries, and American people. They committed murder and we will prosecute them. America’s response is not to cower in fear.[I wonder if he’s thinking of GoFuckYerSelf Cheney?] Those responsible for attack on USS Cole, MC, Nidal Hasan, military courtmartial. Written to John Brennan, asked him to provide internal investigation, both interim classified, Both Sessions and I should be informed. Have spoken with Mueller. Me and Feinstein were briefed on status of investigation. Try not to do in reckless fashion so as not to interfere with military prosecution.

[Note, that that clarifies who was in that briefing: Gang of Eight, plus the Judiciary Chairs. Presumably Crazy Pete was there and Holy Joe was not.]

Leahy: Financial Fraud Task Force.

Sessions: We don’t agree on KSM and 9/11. [Presumably in NYC, but he didn’t say it.] You asked for this job. David Beamer, FL, and Alice Hoagland from CA. Lost sons on Flight 93. Lisa Dolan lost her husband at the Pentagon. Debra Burlingame lost brother, pilot. Tim Brown from NYFD. A privilege to have each of you with us today. Blah blah blah blah blah. Policies taking place under new Admin, I fear that is not the case. Admin continuing to delay to provide clear leadership to men in Afghanistan, investigation of CIA officers, cut a deal on media shield legislation to protect indivs to leak classified info to mass media, concede to weakening of PATRIOT, decline to provide basic information about Ft. Hood, and now announced they will bring KSM back to Manhattan. These policies signal to our people and to inter-nat-shun-all community. Return to pre-9/11 mentality. Al Qaeda doesn’t agree. KSM in NY, departs from long-standing policy that these should be treated under the rules for law. He’s alleged not to be a common criminal. Correct way to try him is by military tribunal. MC and civilian courts have different functions. US Court system not designed to try unlawful enemy combatants. These are people we are at war with. We are dropping bombs on them every day, attacking they lairs. [anyone wonder whether Jefferson Beauregard Sessions III has a woody?] They are first a prisoner of war, once they’re captured. [oops–that’s got to be a mistake, all of a sudden admitting that KSM is POW] Ex Part-ay Qweer-in. Our enemies and friends must ask themselves whether they’re still serious about this effort.

Leahy: Delighted to hear someone from AL quote approvingly Ulysses S Grant and Abraham Lincoln. The world has come full circle.

Sessions: Well, and they were winners, too.

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DiFi’s Invitation to a Fishing Expedition

fly_fishing_in_southeast_louisiana.thumbnail.jpgAs I noted last night, DiFi appears to have used the Najibullah Zazi investigation as justification to make the language surrounding Section 215 of the PATRIOT Act worse, effectively granting the FBI the ability to collect secret lists of everyone who buys acetone or hydrogen peroxide.

As a reminder, Section 215 gives investigators a way to get business records or other tangible things without telling the people who those business records pertain to that they have done so. I have speculated that the FBI is using Section 215 now to search out people–who may or may not have known ties to alleged Islamic terrorists–who have purchased the precursors of TATP, the explosive that Najibullah Zazi is alleged to have tried to make. Those precursors include things like hydrogen peroxide and acetone, both common ingredients of beauty and home improvement supplies.

Here is the current Section 215 language on targeting (I’ve used bold and strike-through here to show significant changes).

(2) shall include— (A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—

(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation

Here’s the language that Pat Leahy had originally proposed.

(A) a statement of facts showing that there are reasonable grounds to believe that the records or other things sought–

‘(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and

‘(ii)(I) pertain to a foreign power or an agent of a foreign power;

‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power;

Leahy’s language made the burden of proof here tougher, particularly in the case of someone simply "in contact with, or known to" a suspected agent of a foreign power. He took out the "presumptively relevant" language, effectively requiring the FISA Court Judge to determine this information was actually relevant to the investigation.

But here’s what I understand DiFi has changed the language to Read more