Last week, as you may or may not have heard, a guy named Jack Ely passed away at the age of 71. The name may not be that familiar, but the voice almost certainly is. Jack Ely was -- fairly briefly -- the lead singer of the Kingsmen, and happened to do a cover song in a single take under poor conditions, that created one of the most memorable songs in rock and roll history, also known as Louie Louie:
You know the song. You also know the lyrics are completely indecipherable. However, with Ely's death, there's been renewed attention to the fact that the FBI spent nearly two years investigating the damn song. It is just as ridiculous as it sounds, but the FBI has released the file on its investigation and it's a rather hilarious read. It turns out it wasn't just the FBI, but involved the FCC and the Post Office:
Apparently, the government was being inundated with claims from people (some of which you can see in the file) insisting that they had heard the indecipherable lyrics were actually "obscene." If you want to see the supposedly "obscene" interpretation of the lyrics, there's one set on page 14 [pdf] of the document, though I warn you, even the falsely heard "obscene" lyrics are not particularly obscene by today's standards (and I'm at a loss as to how they're that obscene by the standards of 1963, frankly). On page 22, there's another, mostly different set of falsely heard "obscene" lyrics that at least includes the word "fuck." On page 35, yet another version with both "fuck" and "bitch."
There are lots of documents about the FBI playing the record, repeatedly, at different speeds, and all coming to the conclusion that you and I and everyone else already knows: the lyrics are basically indecipherable.
There are a few more times this determination was made, in part because after the FBI had already gone through the whole investigation, J. Edgar Hoover reopened it after a concerned parent wrote him a letter -- complaining that whether or not the real lyrics are obscene, it doesn't matter because teens can hear the obscene lyrics and "every teenager in the country 'heard' the obscene not the copywritten lyric." There are also letters to Attorney General Robert Kennedy that include lines like "these morons have gone too far," and "This land of ours is headed for an extreme state of moral degradation what with this record, the biggest hit movies and the sex and violence exploited on T.V. How can we stamp out this menace? ? ? ?" Really.
But, in the end, as everyone knows, the song is simply indecipherable, rather than obscene.
And that's because the band was in a tiny studio with just three mics, played a single take of the song and Ely had to scream at a microphone on the ceiling trying to have his voice heard above the instruments (a task he basically failed at doing). But, the idea that there was a mystery to the lyrics is kind of ridiculous for a few reasons, the first one being that the song is a cover song, and the FBI could have easily listened to a few of the earlier versions of the song, such as the original by Richard Berry, or another popular one by Rockin Robin Roberts and The Fabulous Wailers (the one that inspired the Kingsmen to do the cover). You can hear both those and another one right here. Their lyrics are a lot more intelligible in all of those versions, and you can pretty quickly tell that the lyrics to the Kingsmen version is supposed to be the Rockin Robin Roberts version.
Also, as Marc Randazza notes, it took nearly two years for someone in the FBI to think, hey, isn't the song registered at the Copyright Office down the street? Maybe we should send someone over there to find out what it says? This was after the FBI had reached out to the record label (who gave them the accurate lyrics) along with the original author of the song, Richard Berry, who told them the lyrics. Oddly, apparently, the FBI never bothered to ask Ely himself what he sang, though I'm sure he would have said the same damn lyrics, which are below:
Still, what a bizarre story of moral panics, FBI and governmental overreach, the First Amendment... and a bit of copyright thrown in just for fun.
Oh, and as a general postscript, for all the hand wringing about possible obscenities in the song... there actually is one. Just not in the lyrics. At 54 seconds into the song, the drummer Lynn Easton actually fumbled his drumsticks banging them together and yells out "fuck." The FBI never caught on to that, but you can actually hear it if you listen...
When asked directly if the FBI wants a backdoor, [Amy] Hess [Asst. Director of FBI's Science & Technology branch] dodged the question and did not describe in detail what actual solution the FBI is seeking.
“We are simply asking for information that we seek in response to a lawful order in a readable format,” Hess responded, while also repeating that the Bureau supports strong encryption. “But how that actually happens should be the decision of the provider.”
When pressed again, Hess said that it would be okay for the FBI not to have a key to decrypt data, if the provider “can get us that information by maintaining the key themselves.”
That's asking the impossible -- for a great many reasons. First and foremost, compromised encryption is compromised encryption. It can be exploited by criminals and other unwanted entities just as certainly as it can assist law enforcement agencies in obtaining the information they're seeking. There's no way around this fact. You cannot have "good guys only" encryption.
First off, if Google gives the FBI the backdoors it wants, that only nails down Google. But Google also distributes thousands of third-party apps through its Play store. And these apps may not contain the subverted encryption the FBI is looking for. Now, Google has to be in the business of regulating third-party apps to ensure they meet the government's standard for compromised encryption.
The obvious answer is that Google can’t stop with just backdooring disk encryption. It has to backdoor the entire Android cryptography library. Whenever a third-party app generates an encrypted blob of data, for any purpose, that blob has to include a backdoor.
This move may work, but it only affects apps using Google's encryption. Other offerings may rely on other encryption methods. Then what? It has a few options, all of them carrying horrendous implications.
One option: require Google to police its app store for strong cryptography. Another option: mandate a notice-and-takedown system, where the government is responsible for spotting secure apps, and Google has a grace period to remove them. Either alternative would, of course, be entirely unacceptable to the technology sector—the DMCA’s notice-and-takedown system is widely reviled, and present federal law (CDA 230) disfavors intermediary liability.
At this point, Mayer suggests the "solution" is already outside the realm of political feasibility. Would the FBI really push this far to obtain encryption backdoors? The FBI itself seems unsure of how far it's willing to go, and many officials quoted (like the one above) seem to think all the FBI really needs to do is be very insistent on this point, and techies will come up with some magical computing solution that maintains the protective qualities of encryption while simultaneously allowing the government to open the door and have a look around any time it wants to.
So, if the FBI is willing to travel this very dark road littered with an untold amount of collateral damage, it still hasn't managed to ensure the phones it encounters will open at its command. Considering phone users could still acquire apps from other sources, the government's reach would only extend as far as the heavily-policed official app store (and other large competitors' app stores). Now what? More government power and less operational stability.
The only solution is an app kill switch. (Google’s euphemism is “Remote Application Removal.”) Whenever the government discovers a strong encryption app, it would compel Google to nuke the app from Android phones worldwide. That level of government intrusion—reaching into personal devices to remove security software—certainly would not be well received. It raises serious Fourth Amendment issues, since it could be construed as a search of the device or a seizure of device functionality and app data. What’s more, the collateral damage would be extensive; innocent users of the app would lose their data.
Even if the government were willing to take it this far, it still doesn't eradicate apps that it can't crack. (But it may be sufficient to only backdoor the most used apps, which may be all it's looking to achieve...) App creators could decide to avoid Google's government-walled garden and mandated kill switch by assigning random identifiers and handling a majority of the app's services (like a messaging service, etc.) via a website, out of reach of app removal tools and government intervention. To stop this, the US government would need to do the previously unimaginable:
In order to prevent secure data storage and end-to-end secure messaging, the government would have to block these web apps. The United States would have to engage in Internet censorship.
Robert Graham at Errata Security makes similar points in his post on the subject, but raises a couple of other interesting (in the horrific train wreck meaning of the word) points. While the government may try to regulate the internet, it can't (theoretically) touch services hosted in foreign countries. (Although it may soon be able to hack away at them with zero legal repercussions…)
Such services could be located in another country, because there are no real national borders in cyberspace. In any event, such services aren't "phone" services, but instead just "contact" services. They let people find each other, but they don't control the phone call. It's possible to bypass such services anyway, by either using a peer-to-peer contact system, or overloading something completely different, like DNS.
Like crypto, the entire Internet is based on the concept of end-to-end, where there is nothing special inside the network that provides a service you can regulate.
The FBI likely has no desire to take its fight against encryption this far. The problem is that it thinks its "solution" to encryption is "reasonable." But it isn't.
The point is this. Forcing Apple to insert a "Golden Key" into the iPhone looks reasonable, but the truth is the problem explodes to something far outside of any sort of reasonableness. It would mean outlawing certain kinds of code -- which is probably not possible in our legal system.
The biggest problem here is that no one arguing for "golden keys," key escrow, "good guy" backdoors, etc. seems to have any idea what implementing this could actually result in. They think it's just tech companies sticking it to The Man, possibly because a former NSA sysadmin went halfway around the world with a pile of documents and a suitcase of whistles with "BLOW ME" printed on the side.
But it isn't. And their continual shrugged assertion that the "smart guys" at tech companies will figure this all out for them is not only lazy, it's colossally ignorant. There isn't a solution. The government can't demand that companies not provide encryption. It's not willing to ban encryption, nor is it in any position to make that ban stick. It doesn't know what it needs. It only knows what it wants. And it can't have what it wants -- not because no one wants to give it to them -- but because no one can give it to them.
Yes, many tech companies are far more wary of collaborating with the government in this post-Snowden era, but in this case, the tech world cannot give the FBI what it wants without destroying nearly everything surrounding the "back door." And continually trotting out kidnappers, child porn enthusiasts and upskirt photographers as reasons for breaking cell phone platforms doesn't change the fact that it cannot be done without potentially harming every non-criminal phone owner and the services they use.
There's nearly 5,000 pages of "material" here, most of which contains only some intriguing words and phrases surrounded by page after page of redactions.
Want to know [REDACTED]'s thoughts on the possible legal implications of Triggerfish? Just close your eyes and allow your imagination to run free.
Here's a quick reference guide that allows FBI agents to quickly match up their chosen "technique" with the appropriate legal standard and process.
That's not to say there's nothing of interest left intact. A few pages explain the FBI's legal rationale for IMSI catcher deployment -- including the fact that the Patriot Act expanded the reach of pen register orders to include not just numbers dialed, but also the location of the phone itself. This allows the FBI and other law enforcement agencies to route around one of CALEA's (Communications Assistance for Law Enforcement Act) few limitations related to pen register orders: that service providers not be required to hand over subscriber location info.
In passing CALEA in 1994, Congress required providers to isolate and provide to the government certain information relating to telephone communications. At the same time that it created these obligations, it created an exception: carriers shall not provide law enforcement with "any information that may disclose the physical location of the subscriber" in response to a pen/trap order… By its very terms, this prohibition applies only to information collected by a provider and not to information collected directly by law enforcement authorities. Thus, CALEA does not bar the use of pen/trap orders to authorize the use of cell phone tracking devices used to locate targeted cell phones.
But, for the most part, it's 5000 pages of this:
And this (from a document titled "Stingray for Dummies"):
"It does not seem credible to me that they can't release more of those kinds of records," [ACLU attorney Nate] Wessler told me. "Information about ongoing investigations, highly technical details of the devices, how they're put together, those kinds of things, redact them, fair enough. Information about whether they have to get a warrant or not, how they purge or do not purge bystanders data. They're clearly talking about those things."
"There's no conceivable reason why they shouldn't tell the public what their Fourth Amendment rights are protecting when they use these," he added. "The documents are not without value, but what the FBI has released is not adequate."
If nothing else, the documents have given a small, narrow glimpse behind the FBI's veil of secrecy -- as well as some more insight into its Stingray-related legal maneuvering. The FBI has managed to turn a pen register order -- something previously used to collect dialed numbers -- into something that can be deployed to locate an individual, or at least their cellphone. Unsurprisingly, this legal theory traces back to the Patriot Act, one of the largest expansions of intelligence and law enforcement powers ever produced by the US government.
The extensive detailing of the program's history contains some rather surprising elements. While much of it remains redacted, there's still enough exposed that indicates the program was like many others the NSA has pursued: expansive, intrusive, done without oversight… and ultimately mostly useless.
In 2004, the F.B.I. looked at a sampling of all the tips to see how many had made a “significant contribution” to identifying a terrorist, deporting a terrorism suspect, or developing a confidential informant about terrorists.
Just 1.2 percent of the tips from 2001 to 2004 had made such a contribution. Two years later, the F.B.I. reviewed all the leads from the warrantless wiretapping part of Stellarwind between August 2004 and January 2006. None had proved useful.
Not that this lack of results kept those writing the report from celebrating the "successes" the FBI apparently couldn't find. Of course, there's nothing to be gleaned from this information because those have been completely redacted.
What is clear is that the program quite possibly did more harm than good. The NSA was sweeping up an unprecedented amount of information but -- because of its secret origins -- was mostly unable to share with the CIA or FBI. In particular, the warrantless wiretapping the NSA engaged in couldn't be passed on to the FBI until leaked details finally forced legislators to act on this apparent breach of Americans' privacy -- which they did by codifying the NSA's actions, making them perfectly -- and retroactively -- legal. Even then, it still posed problems for the FBI.
F.B.I. agents were asked to scrutinize phone numbers deemed suspicious because of information from the program. But the agents were not told why the numbers had been deemed suspicious, only “not to use the information in legal or judicial proceedings.”
That made some agents uncomfortable, and it was not clear how such mysterious leads fit into their rules for investigations.
The FBI, which is now heavily engaged in the management of parallel construction for law enforcement Stingray usage, found itself in the awkward position of disguising the origin of intelligence it hadn't specifically asked for, as well as having the NSA tell it what it could and couldn't say in front of judges. This would include applications made to the FISA court.
We asked [DOJ intelligence counsel James] Baker whether he thought the restrictions on the use of Stellar Wind-derived leads disseminated to field offices, as described above, were sufficient to guard against including Stellar Wind information in FISA applications. Baker stated that his experience with FBI record-keeping practices did not give him a high degree of confidence that such separation could be consistently maintained. In addition, Baker believed that the nature of FBI international terrorism investigations would make it difficult to track Stellar Wind-derived information. According the FBI OGC, Baker did not share with the FBI his concerns about whether its record-keeping practices would keep Stellar Wind information from being used in FISA applications.
Rather than disconnect the FBI from the influx of questionably-obtained NSA "tips," the administration worked with the DOJ to make it easier for the agency to find something to do with intelligence passed on by the NSA.
The Justice Department created the new type of investigation, initially called a “threat assessment,” which could be opened with lower-grade tips. Agents now use them tens of thousands of times a year.
Questionable "intel" leads to even more questionable not-quite-investigations. As can be seen by the FBI's own conclusions, about the only thing Stellar Wind did for it was increase the number of man hours wasted running down the NSA's "leads."
As for the FISA court, there's a good reason it's been perceived as a "rubber stamp" for NSA requests. Bush's secret executive authorizations were disclosed to FISA Judge Royce Lamberth by Bush himself. Further orders for these collections were routed only through Lamberth, and his successor, Colleen Kollar-Kotelly.
This belated admission (which did nothing to halt the collections) was prompted by none other than James Baker, who stumbled across a clumsy attempt at parallel construction.
[Baker] came across “strange, unattributed” language in an application for an ordinary surveillance warrant and figured it out, then insisted on telling Judge Lamberth.
I have long scoffed at the claim that the phone dragnet violations discovered in 2009 were accidental. It has always been clear they were, instead, features of Stellar Wind that NSA simply never turned off, even though they violated the FISC orders on it.
The Stellar Wind IG Report liberated by Charlie Savage confirms that.
It describes that numbers were put on an alert list and automatically chained.
"An automated process was created to alert and automatically chain new and potential reportable telephone numbers using what was called an “alert list.” Telephone numbers on the alert list were automatically run against incoming metadata to look for contacts. (PDF 31)"
This was precisely the substance of the violations admitted in 2009.
Kollar-Kotelly, on the other hand, was much more indulgent when responding to NSA requests, allowing the agency to recast the low bar of pen register orders as justifying bulk email metadata collections obtained through Stellar Wind -- something she did a few years before the NSA allowed Stellar Wind to bleed into its Section 215 collections.
The documents don't restore any faith in the "oversight" of the NSA's activities. Instead, it shows two presidents acting in secrecy to permit the surveillance of American citizens and involved agencies covering it up with parallel construction, intense secrecy, manipulation of oversight bodies and several very questionable legal theories.
In 1989, he was arrested for possession of cocaine with intent to deliver. The search of his home, car, and business “was based on [the allegations of] a confidential . . . police informant” who claimed to have made three separate purchases of cocaine from Coss on May 8, 1989. At trial and during his subsequent appeal, Coss alleged that the informant – who he even then believed was Casas – had fabricated his story; as a result, Coss maintained, the police officer’s search-warrant application contained false statements and was thus invalid. These arguments did not succeed, and Coss’s conviction was affirmed.
In early 2013, Coss filed FOIA requests with the FBI and the Executive Office for United States Attorneys (EOUSA) for these notebooks, in hopes of obtaining exonerating information. Instead, he spent the next several months being told less than nothing by both agencies, which rebuffed him with Glomar responses, refusing to confirm or deny the existence of the notebooks.
After multiple, increasingly narrow FOIA requests were submitted by Coss in hopes of evading the Glomar blockade, the EOUSA finally told him that it had found nine boxes which could possibly contain the requested notebooks, but that Coss would need to pay up front for the costs involved in searching them. Coss sent the DOJ a check for the amount requested. The agency processed it on May 23, 2014… and then did nothing. Coss filed his lawsuit on July 13, 2014. Over two months later, the DOJ finally informed Coss that the notebooks he sought weren't in the boxes.
The FBI, on the other hand, continues to cling to its Glomar -- even in the face of Coss' lawsuit -- claiming it isn't done dicking him around he hasn't "exhausted his administrative remedies." The court dismisses Coss' claims against the EOUSA/DOJ, stating that the agencies made a "good faith effort" to locate the documents. But his claims against the FBI will be allowed to stand. The court tackles each of the FBI's weak counterclaims from its motion for dismissal.
There is no dispute that “[a] FOIA requester is generally required to exhaust administrative appeal remedies before seeking judicial redress.” The difficulty here is locating an FBI decision from which Coss should have appealed. As set forth in Section I, supra, the FBI’s July 30, 2013, Glomar response offered Plaintiff several avenues through which he might overcome the Bureau’s position: have the third party sign an authorization form, prove the third party’s death, or demonstrate that the public interest in disclosure outweighed the third party’s privacy interests. Apparently picking door number three, Coss responded with his August 16 letter, stating, “The public interest in ensuring that no innocent person is convicted of a crime far outweighs any privacy interest in withholding the information.”
As the FBI never responded thereafter, it seems disingenuous for the Bureau to now adopt a failure-to-appeal position. In other words, Plaintiff followed the instructions of the July 30 letter, and even though his justification was rather scant, the Bureau would still have needed to reject it in order for Coss to know he should then pursue an appeal. Its radio silence left him in FOIA limbo. In such an instance, the law makes clear that exhaustion is not a proper defense: “[I]f an agency fails to make and communicate its ‘determination’ whether to comply with a FOIA request within certain statutory timelines [20 working days here], the requester ‘shall be deemed to have exhausted his administrative remedies.’” The Bureau, consequently, may not rely on exhaustion here.
The FBI's Glomar response similarly receives no love.
In this case, the FBI contends that the “disclosure of any information would tend to identify a third-party individual, and the FBI discerned no public interest in disclosure of this information and found that privacy interests were paramount.” Yet this is a mere parroting of the standard without any clear thought about what is actually sought here. All Coss demands in this suit are the notebooks in which Casas detailed his drug transactions. Their existence is not secret; indeed, it is printed for all to see in the pages of the federal reporter. As the Seventh Circuit explained, “From above a trapdoor in Casas’ bedroom closet, DEA agents recovered . . . some notebooks . . . . [which] contained records and tabulations of multiple multikilogram cocaine transactions.”
As Coss simply seeks the notebooks that were admitted in Casas’s and his co-defendants’ trial, this is not a case in which Plaintiff is endeavoring to unmask the identity of an informant or to compromise anyone’s security. He has made clear on multiple occasions, furthermore, that all personally identifying material that does not refer to him may be redacted. Refusing to acknowledge whether or not the notebooks exist borders on foolishness.
As the ruling closes out, the judge sends one final shot across the FBI's obfuscatory bow:
The FBI notes that, as a courtesy once the suit was filed, it searched its Central Records System using Coss’s name and located no material. This could well be relevant had Plaintiff’s request been for FBI records pertaining to himself. Given that he sought only the Casas notebooks, it is unsurprising that these documents were not uncovered in such a search. While these efforts by the Bureau deserve commendation, they are no substitute for a targeted search for the actual notebooks.
It's refreshing to see a government agency's Glomar get shot down by a judge. The problem is that the supposed "administrative remedies" available to FOIA requesters rarely remedy anything. For far too many FOIA requesters, the FOIA lawsuit is the only remedy that seems to produce any results.
The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.
Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far…
This isn't to say that nearly every case reviewed will be overturned. For some, it's too late. Of those reviewed, 28 pertain to prisoners with death sentences -- of which nearly all have already died... or been put to death. For others, their convictions may not have hinged on apparently questionable DNA evidence.
What's uncovered here is just the beginning. There are nearly 1,200 more cases to review. For many of those, it will likely be several years (and several lawsuits) before the truth comes out. Of those 1,200, nearly 700 are being met with stonewalling by local law enforcement and prosecutors, who have refused to provide requested transcripts and other court materials.
Part of this widespread failure is undoubtedly due to the FBI's desire to rack up convictions. (The same is true for those entities it worked with -- local law enforcement agencies and prosecutors.) But a larger portion of this can be chalked up to the FBI's own desire to keep its "slam dunk" forensics analysis from being questioned by anyone inside or outside of its labs. For four decades (1972-2012), the FBI refused to provide any guidelines for the use of, not just hair DNA evidence, but almost any forensic evidence, in court.
The FBI is waiting to complete all reviews to assess causes but has acknowledged that hair examiners until 2012 lacked written standards defining scientifically appropriate and erroneous ways to explain results in court. The bureau expects this year to complete similar standards for testimony and lab reports for 19 forensic disciplines.
Judging from how analysts performed in court, the lack of guidance was apparently construed to mean "put people in jail," rather than unbiased scientific analysis. This news follows on the heels of a highly critical report condemning the agency's faith in "bite mark analysis," a practice that is increasingly being perceived as junk science -- foisted on law enforcement by self-described "experts" with no hard data to back up their findings. The courts, so far, have often indulged bite mark experts, despite a National Academy of Sciences report finding that bite mark analysis provides "no evidence of an existing scientific basis for identifying an individual to the exclusion of all others."
These are people who have the power to effectively end someone's life and they've been instrumental in ensuring that problems tracing back to the early 1970s -- and first examined 25 years later -- remained buried until it could no longer be ignored.
The DOJ and the FBI aren't seeing eye-to-eye -- and apparently haven't for years. The FBI has been stiff-arming the DOJ's Inspector General over the past several months, preventing him from doing his job of providing oversight for the DOJ's many law enforcement agencies. The FBI appears to have gone rogue.
Maybe it isn't the FBI deciding it's above accountability. Maybe it's because it doesn't view the DOJ as a useful entity... or even a trustworthy ally -- even as the FBI is technically a part of the DOJ. At its heart, the FBI is a law enforcement agency. It pursues bad guys and turns them over to be locked away. It firmly believes in the inherent "rightness" of its mission, even when its investigative activities have partially devolved into terrorism-related shots on unguarded goals.
Emails obtained by the New York Times provide some insight to the friction between the FBI and DOJ over the handling of the Blackwater case. In 2007, Blackwater -- a private company hired by the State Department to provide security in Iraq -- opened fire on civilians in Baghdad, injuring 20 and killing 17. The FBI's investigation concluded that 14 of the 17 Iraqis were killed "without cause." The FBI wanted to stack charges in order to assure the contractors felt the full consequences of their actions. The DOJ, on the other hand, wasn't so sure.
The F.B.I. had wanted to charge the American contractors with the type of manslaughter, attempted manslaughter and weapons charges that could send them to prison for the rest of their lives for the shooting, which left more than a dozen Iraqis dead and many others wounded in September 2007.
But at the last minute, the Justice Department balked. In particular, senior officials were uncomfortable with bringing two machine-gun charges, each of which carried mandatory 30-year prison sentences.
The lead agent, John Patarini, felt that dropping this mandatory chunk of prison time would allow those involved to walk away from killing 17 civilians with five-to-seven year sentences. This outcome may have been more aligned with the DOJ's sense of justice (after all, the contractors were required to carry weapons by the State Department) but it didn't mesh with the FBI's more law enforcement-oriented definition of justice. So, Patarini decided to play politics.
Mr. Patarini was incensed. “I would rather not present for a vote now and wait until the new administration takes office than to get an indictment that is an insult to the individual victims, the Iraqi people as a whole, and the American people who expect their Justice Department to act better than this,” he replied.
Playing politics only made sense. The charge itself is a political by-product -- a relic from the Drug War's decade-long obsession with crack. This charge was legislated into existence solely to stack charges against drug dealers to turn low-level possession charges into decades-long stints in federal prisons.
The DOJ's reluctance to use a law it had wielded so willingly against drug dealers and gang members in the past against federal contractors who gunned down dozens of Iraqis is troubling. The FBI's desire to see Blackwater's employees face lengthy prison sentences is also troubling, considering it's usually all too happy to do the same thing to people accused of far less heinous behavior.
The regime shift the FBI felt would keep the weapons charges alive also changed the DOJ's stance. Nothing in the obtained emails states explicitly why the DOJ reconsidered its position, but its recent statements on the Blackwater case are closely aligned with Special Agent Patarini's 2008 desire to see the contractors sentenced to decades in prison.
Echoing the emails from nearly seven years ago, the Justice Department said the sentences would “hold the defendants accountable for their callous, wanton and deadly conduct, and deter others wielding the awesome power over life or death from perpetrating similar atrocities in the future.
The only winners here are those who know how to game the political system. The FBI knew it needed a friendlier DOJ, which required a friendlier White House. But the FBI doesn't play politics to the extent the DOJ does. No matter how inflamed its sense of injustice, there was little chance the DOJ would fight the previous administration to pursue gun charges against the employees of a major political donor. Seven years later, the DOJ finally feels comfortable using a bad law to put four killers in jail for an extra-long time. There's no "right" here. There's only the sickening interplay of political expedience.
The FBI fought the DOJ -- not for the greater good -- but for much smaller, much more temporary ends. The FBI wants to put bad guys away. The DOJ's position isn't as clear-cut. It's quick to throw the book at certain defendants, but it's just as likely to investigate allegations of police misconduct and civil rights violations. Although both are ostensibly aimed at the same goal -- justice -- the DOJ is the weaker of the two, more prone to cutting the accused some slack and far more willing to criticize the FBI's colleagues and allies: the local law enforcement agencies it often partners with. Because of this, the FBI views the DOJ as unworthy of its respect -- just as likely to sell it out as back it up. The DOJ may be the FBI's parent agency, but it's clear the FBI views it as ineffective and impotent.
from the works-of-fiction-with-too-much-truth? dept
Over the past decade, criminals have apparently gained an insurmountable technology lead over law enforcement. I'm not sure how this is possible, especially considering many criminals don't have access to the same technology cops do, much less access to generous DHS funding, and yet, here we are witnessing police officers (following orders from the FBI) tossing cases and lying to judges in order to "protect" secret tools that aren't all that much of a secret.
We recently covered a Baltimore detective's courtroom admission that a) the Baltimore PD had deployed its Stingray equipment 4,300 times over the past seven years and b) that it had hidden this information from courts and defendants. The argument for this secrecy was that doing otherwise allows criminals to devise ways to beat the system.
No one's looking to expose ongoing investigations, but as far as some law enforcement agencies are concerned, everyone is under continuous investigation by default. And since that's the case, anything that might be construed as giving criminals a head start is subject to a thoroughly ridiculous code of silence that excludes the majority of the justice system.
David Simon, creator of "The Wire" and a former Baltimore Sun reporter, said in an email that "the transition from landlines to cellular technology left police investigations vulnerable well over a decade ago."
He noted that there was new technology at the time — such as Nextel phones that mimicked walkie-talkies — that "was actually impervious to any interception by law enforcement during a critical window of time."
"At points, we were asked by law enforcement not to reveal certain vulnerabilities in our plotlines," Simon said. That included communications using Nextel devices.
The Wire also featured detectives using a cell signal-capturing device called a "Triggerfish." Any relation to today's Stingrays is likely not coincidental, no matter what the post-credits disclaimer might have stated. The Stingray isn't a secret, but it has been awarded an unprecedented amount of secrecy. Cops lie to judges, defendants and even prosecutors to keep the Stingray out of the public eye. And yet, it seems clear that The Wire's creators knew something about the technology over a decade ago.
But the inherent ridiculousness of asking a fictional television show to withhold dramatic elements just because they may have hewed too closely to reality can't be ignored. Criminals will find vulnerabilities in the system and law enforcement will work hard to close these gaps. But criminals aren't so far ahead as to be unstoppable.
This attempt to censor The Wire isn't much different than the law enforcement secrecy efforts we see being deployed in courts. The motivation behind these efforts is highly suspect. It doesn't seem so much to be aimed at preventing criminals from exploiting vulnerabilities as it is at keeping law enforcement officers from working any harder than they feel they should have to. It's not about keeping bad guys from outmaneuvering cops. It has more to do with preventing public disclosure from resulting in unwanted changes -- like additional scrutiny from magistrate judges or the challenging of submitted evidence. It's about preserving the most efficient law enforcement methods -- generally anything that doesn't require permission from an outside entity or generate a paper trail.
Last week, we wrote about the FBI arresting John Booker, who was involved in yet another of the FBI's own plots. At the beginning of our post (and the criminal complaint) against Booker, we noted how a year ago Booker had tried to join the army, and had then been denied after posting stuff to his Facebook page about how he was going to "wage jihad" and planned to die. It was noted that the FBI visited him at that time, and we found it odd that if he was such a threat, why wasn't he arrested then. Instead, it appears that months later, the FBI got together and concocted a ridiculous plot for Booker to join, in which the FBI itself did all the planning.
The alert, which was sourced to “an FBI agent,” stated it was distributed to “inform and protect officers who may encounter this individual or others exhibiting the same aspirations.”
Four days later, on Tuesday, the FBI downplayed the "routine" alert, saying it was not actively searching for Booker. The agency said it did not believe he posed an "imminent threat," despite the original alert's invocation of the Fort Hood shooting, where an Army psychologist killed 13 and wounded more than 30 on a Texas military base in 2009.
“We have interviewed this individual,” an FBI spokesman said. “There is not a manhunt and there never was one. There is no imminent threat to public safety, nor should the public be concerned that this threat exists from an individual at large."
The reporter who wrote that above now works at the Intercept and has revealed more details, including the FBI's Situational Information Report after it had interviewed Booker a year ago. It notes that not only had Booker checked himself into a mental health facility a month earlier, but also that he basically had no way of carrying out any threat:
BOOKER does not have access to a vehicle or other form of transportation at this time, nor is there evidence he possess firearms.
It appears that Booker only became a real threat... once two FBI informants showed up and created the plot for him.
John T. Booker Jr., 20, of Topeka, Kansas, was charged in a criminal complaint unsealed today with one count of attempting to use a weapon of mass destruction (explosives), one count of attempting to damage property by means of an explosive and one count of attempting to provide material support to the Islamic State of Iraq and the Levant (ISIL), a designated foreign terrorist organization. Booker is expected to make an initial appearance this afternoon before U.S. District Judge Daniel Crabtree of the District of Kansas in federal court in Topeka.
Booker was arrested this morning near Manhattan, as he completed his final preparations to detonate a vehicle bomb targeting U.S. military personnel.
There have been a bunch of these arrests lately of random people supposedly planning to do something big to join ISIS. But, looking at the details in the actual complaint, it quickly becomes clear that this is yet another of the FBI's own plots. Yes, Booker appears to be an idiot who publicly proclaimed that he wanted to blow stuff up to join in the whole jihad thing, but his actual ability to do anything was basically non-existent until the FBI gave him two helpers who presented the details of the plan.
First, Booker did try to do something himself, but blabbed so much about it that the FBI came and spoke to him, ruining his original plan (though they didn't arrest him then):
John T. Booker, Jr., a/k/a “Mohammed Abdullah Hassan,” (“Booker”) is a 20-year-old United
States citizen who is currently living in Topeka, Kansas. In or around February 2014, Booker
had been recruited by the United States Army in Kansas City, Missouri, and he was
scheduled to report for Basic Training on April 7, 2014.
On March 15, 2014, Booker publicly posted on Facebook: “I will soon be leaving you forever
so goodbye! I’m going to wage jihad and hopes that i die.” On March 19, 2014, Booker
publically posted on Facebook: “Getting ready to be killed in jihad is a HUGE adrenaline
rush!! I am so nervous. NOT because I’m scared to die but I am eager to meet my lord.”
That same day, the FBI became aware of Booker’s postings based on a citizen’s complaint.
The FBI was able to identify Booker based on the publically available content on his
Facebook account. On March 20, 2014, Booker was interviewed by FBI agents related to his
Facebook postings. After being advised of and waiving his Miranda rights, Booker admitted
that he enlisted in the United States Army with the intent to commit an insider attack
against American soldiers like Major Nidal Hassan had done at Fort Hood, Texas. Booker
stated that if he went overseas and was told to kill a fellow Muslim, he would rather turn
around and shoot the person giving orders. Booker stated that he formulated several plans
for committing jihad once enlisted, including firing at other soldiers while at basic training at
the firing range or while at his pre-deployment military base after completing his initial
military training. Booker clarified that he did not intend to kill “privates,” but that he
instead wanted to target someone with power. Booker also said that he did not intend to
use large guns, but instead a small gun or a sword. Booker was subsequently denied entry
into the military.
Okay, so we've established that Booker is not the sharpest knife in the drawer, but at least was willing to state his idiotic plans publicly and then admit them to the FBI. But other than denying him entry into the military, they didn't do anything else... other than try to set him up for a big arrest later. That's because a few months later, they sent an FBI informant to befriend Booker and urge him to move forward with his "blow shit up" plans:
Since on or about October 8, 2014, Booker has engaged with an individual who is,
unbeknownst to Booker, an FBI Confidential Human Source (CHS 1). Booker has
repeatedly expressed to CHS 1 his desire to engage in violent jihad on behalf of ISIL. For
example, during a face to face conversation on October 10, 2014, Booker told CHS 1 in
relevant part, that he: “was in jihad before, okay. I got captured. Okay, a long story
short the people at the Masjid don’t like me because I support al Qa’ida openly. I’m not
afraid, I was captured before . . . I was captured by FBI before . . . because I was with al
Qa’ida.” Booker stated that he “joined the United States Army” and he “hadn’t really
completed, I hadn’t really started . . . I was going to go in there and kill the American
soldier.” Booker told CHS 1 that he dreamt of being in the Middle East, and then he
showed CHS 1 a video on his phone of Muslims fighting American forces in Iraq. Booker
said he dreamt about going with the fighters and wished he was with them. Booker told
CHS 1 that he had heard about Americans joining ISIL and that Booker wanted to join, but
he didn't know anyone who could help him do so.
So, here we have Booker admitting that he doesn't actually have the capabilities to join ISIS or do anything really. But, have no fear, because the FBI informant is there to help:
That same day, CHS 1 told Booker that he had a “cousin” (who is
also a FBI Confidential Human Source, hereinafter referred to as CHS 2) who could get
people overseas and asked Booker what he wanted to do. Booker answered,
“Anything. Anything you think is good. I will follow you.”
So, now we've got a plot in which two of the plotters are actual FBI informants, while the only other guy is a guy who clearly has no idea what he's doing:
On or about March 9, 2015, while under FBI surveillance, CHS 1 introduced Booker to CHS 2,
who he explained was a high ranking sheik planning terrorist acts in the United States.
Then, the plan is set in motion, with the informants basically directing Booker in what he should do -- saying that they would give him the equipment needed to build explosives, and that he should rent a storage space to keep the stuff:
1 told Booker that he (CHS 1) may send him some items for Booker to hold until the next
time CHS 1 visited – perhaps a package or something in the mail. Booker told both CHS 1
and CHS 2 that his house was not safe to store things because he shares it with his cousin.
At that point, CHS 2 suggested that Booker may want to rent a storage locker.
On or about March 25, 2015, CHS 1 met with Booker. During this meeting, CHS 1 told
Booker that he had been “selected” to accompany Booker on his suicide mission. CHS 1
provided Booker with a list of supplies that they needed to purchase in order to build the
Booker even relied on the two FBI informants to build the (totally fake) bomb he was going supposedly going to use, and to give him a map of where he was to set it off:
storage unit held a large amount of inert explosive material that Booker understood was to
be used to build their Vehicle Borne Improvised Explosive Device (“VBIED”). Pursuant to
Booker’s plan, Booker understood that CHS 1 and CHS 2 would build the VBIED, Booker and
CHS 1 would eventually deliver it to Fort Riley, and Booker would detonate the VBIED in a
suicide attack. CHS 1 and CHS 2 then provided Booker with a map of the area of Fort Riley
at Booker’s request.
And then, just this morning, one of the FBI informants was needed to tell Booker how the device worked so he could "blow it up."
On or about April. 10, 2015, Booker and CHS 1 drove to a location near Junction City, Kansas
where they met CHS 2. CHS 2 met Booker and CHS 1 in the van in which CHS 2 had
purportedly constructed the VBIED. CHS 2 explained the function of the inert VBIED to
Booker and demonstrated how to arm the device. CHS 1 and Booker then drove the VBIED
to an area near Fort Riley that Booker believed to be a little used utility gate that would
allow them to enter Fort Riley undetected so that they could find an area to detonate the
VBIED that would kill as many soldiers as possible. While Booker was making final
connections to arm the inert VBIED at the gate, he was taken into custody without incident
by members of the FBI.
And thus, he's been arrested. It seems pretty clear that he's not a fan of the US, but this story matches many previous stories of the FBI stopping its own plots, in which the people they arrest tend to be hapless individuals with no ability to carry out any sort of terrorist attack on their own... until the FBI shows up and provides them with the fake tools to do so.