As we pointed out earlier this week, it's pretty obvious that the Justice Department lied to a federal magistrate judge in saying that it had exhausted all possible opportunities to get into the work iPhone of Syed Farook, given that it has now put the case about it on hold to test out a "new way" to get into the phone. The DOJ had made a filing claiming that Apple's help was the only way to get into the phone, yet now is saying that's probably not true. However, the FBI is insisting that the DOJ wasn't lying. In a letter to the Editor at the Wall Street Journal, FBI Director James Comey reacts angrily to a similar opinion piece at the WSJ suggesting the DOJ lied:
You are simply wrong to assert that the FBI and the Justice Department lied about our ability to access the San Bernardino killer’s phone. I would have thought that you, as advocates of market forces, would realize the impact of the San Bernardino litigation. It stimulated creative people around the world to see what they might be able to do. And I’m not embarrassed to admit that all technical creativity does not reside in government. Lots of folks came to us with ideas. It looks like one of those ideas may work and that is a very good thing, because the San Bernardino case was not about trying to send a message or set a precedent; it was and is about fully investigating a terrorist attack.
James B. Comey
It's difficult to take much of that at face value -- especially as the government continues to push for similar court orders in other cases. And especially as Comey has been whining on and on about "going dark" for well over a year and a half now. At the very least, it does seem clear that the FBI failed to truly explore all possible options. As some iPhone forensics folks have noted, if this were truly a brand new solution, the FBI would need a hell of a lot more than two weeks of testing to make sure it really worked.
In the meantime, I'd heard from a few folks, and now others are reporting as well, that the assumptions that many had made about the Israeli company Cellebrite providing the solution are simply not true -- along with the idea that the solution involves reflashing the chip. The FBI itself now says it's a "software-based" solution.
FBI Director James Comey, in response to a reporter's question at a briefing, said making a copy of the iPhone’s chip in an effort to circumvent the password lockout “doesn’t work.” Comey wouldn't identify the company that's helping it or discuss details of the technique.
[....]
Law enforcement officials speaking on background debunked another report that had named Israeli forensics firm Cellebrite as the mystery firm helping it break into the phone.
Of course, this is after Cellebrite got a ton of free publicity from press reports claiming that it was the company (all of which was based on a few rumors from within the forensics world):
At this point it's not clear that you can trust the FBI or DOJ on anything about these issues, as they've managed the messaging very, very carefully, and at times have made statements that are somewhere in that gray zone between "misleading" and "outright lies." But Comey's actions over the last year and a half make it quite clear that this is not just about this one iPhone and he very, very much wants a precedent that will effectively stop the possibility of encryption that the FBI can't easily circumvent.
Remember the Senate Intelligence Committee's massive CIA torture report, that details how the CIA conducted a vast program of torturing people, which had no actual benefit, and then lied to Congress (repeatedly) about it? The same report that, when the heavily redacted executive summary was released, ex-CIA officials insisted would result in attacks on America that never actually happened?
This was also the same CIA torture report that the CIA vehemently disagreed with. Even prior to the (again, heavily redacted) executive summary being released, CIA Director John Brennan had responded to the report, insisting that it was full of lies and misleading claims. That initial response, which happened in the summer of 2013 took issue with many of the claims in the report. When the redacted executive summary of the report was finally released, the CIA apparently publicly posted a "correction" about its claims concerning the report, in which it noted that many of the statements the CIA had made in attacking the torture report were actually... not true.
And here's the real kicker: while the CIA "released" this "correction" on its website as a "note to readers" it didn't actually tell anyone about it. Instead, just as everyone was talking about the release of the executive summary of the terror report, and claiming that the CIA was contesting a bunch of key findings in the report, the CIA had actually posted a document on its own website detailing how its own denials were basically wrong. And some of them were big denials -- including about the effectiveness of the torture program on Khalid Shaykh Muhammad (KSM). A key part of the Senate's report was that KSM was repeatedly tortured, but didn't cough up anything particularly useful. The CIA vehemently denied this and insisted that what KSM gave them was useful. But in this "note to readers" (again, which was never revealed to anyone), the CIA admits that it clearly overstated the value of KSM:
Rather than "the individual managing the plot," we should have written "the
individual who was in a position to advance the plot." This terrorist had raised Canary Wharf as a
potential target and was tasked by KSM to conduct surveillance of Heathrow Airport's security, but the
plot was shelved after KSM's arrest....
... Instead of "KSM provided information on an ai-Qa'ida
operative named Zubair. .. ," we should have written that "KSM provided information that led us to
understand the significance of a Jemaah lslamiya operative named Zubair." We acknowledge that in
various representations, including President Bush's 2006 speech, CIA introduced a sequencing error
regarding Majid Khan's arrest/debriefings, and KSM's arrest/debriefings. We repeated that error here
and on page 26 of Tab C (see next erratum). However, despite that error, our description of the impact
of the information acquired from KSM in the Hambali case remains accurate. It was the combination of
information from both terrorists that caused us to focus on Zubair as an inroad to Hambali....
... In our review of this case, we correctly acknowledged that CIA allowed a
mistaken claim that KSM played a role in Majid Khan's capture to appear in the Inspector General's 2004
Special Review, and we correctly wrote that this claim was a one-time error. However, our effort to
provide an example of a more accurate "typical representation" of the relationship between KSM's
information and Khan ran afoul of the sequencing error noted in the previous erratum. Although
information from KSM was used to elicit further details from Khan, by then Khan already had provided
the information that, together with what we learned from KSM, enabled us to advance our search for
Hambali....
...We incorrectly stated that KSM's information preceded Majid Khan's
information. We stand by our overall conclusion regarding the value of KSM's information.
In other words, a bunch of things the CIA insisted were inaccurate in the Senates Torture Report were actually quite accurate, and it was the CIA that was being inaccurate. And, sure, the CIA "admitted" this in its "note to readers" but then failed to actually tell anyone about this "note to readers." In fact, while the document was available on the CIA website no one even seemed to notice it until a few days ago. And that includes the Senate Intelligence Committee.
The document, entitled “Note to Readers,” was not formally provided or flagged separately for the Senate Intelligence Committee, which only became aware of its existence in the last week — more than a year since the document was publicly posted.
The “Note” was also noticeably absent from the CIA website’s swath of December 2014 releases related to the Intelligence Committee study, and was not mentioned in either of the agency’s archived pressreleases on the subject.
Not surprisingly, Senator Ron Wyden, who has been one of the leading voices in getting this report out to the public, was not at all pleased to find out about all of this:
“The CIA justified this program by claiming that it produced otherwise unobtainable information. CIA officials have now admitted their go-to example was wrong,” Sen. Ron Wyden, a prominent Democrat on the Intelligence Committee, told BuzzFeed News.
“These are significant admissions by the CIA that should not have been hidden in an obscure endnote,” Wyden said. “Director Brennan has tried to insist that the CIA did not provide policymakers with false information about torture, but these corrections seem to be an admission that they did so, and did so repeatedly.”
It still seems worth asking why President Obama continues to allow CIA Director John Brennan to retain that role. He appears to have no problem letting him get away with lying and purposeful obfuscation over activities of the CIA to the Senate Committee that is in charge of overseeing the CIA.
The recent Snowden documents published by the New York Times and ProPublica confirm the close relationship between AT&T and the NSA, which would explain the deafening silence the company issued in response to the first few months of leaks. (Such "partnerships" likely exist with Verizon and other providers, although nothing has been directly confirmed by leaked documents, and such partnerships may have done a bit of "dissolving" shortly after the leaks began.)
But the documents also highlighted the difference between what NSA officials claimed they were getting and what they were actually getting from telcos. In early 2014, officials claimed they were only obtaining between 20-30% of domestic call records. According to unnamed "current and former officials," the explosion of cellphone use was leaving the NSA's bulk collection programs in the dust.
These documents show there's a huge discrepancy between the unofficial "official" statements and the NSA's actual capabilities, as the ACLU's Kade Crockford points out.
The New York Times reports on documents disclosed by former NSA contractor and whistleblower Edward Snowden:
"In 2011, AT&T began handing over 1.1 billion domestic cellphone calling records a day to the N.S.A. after “a push to get this flow operational prior to the 10th anniversary of 9/11,” according to an internal agency newsletter. This revelation is striking because after Mr. Snowden disclosed the program of collecting the records of Americans’ phone calls, intelligence officials told reporters that, for technical reasons, it consisted mostly of landline phone records."
I must quibble a bit with the New York Times excellent reporting here, only to suggest that what's "striking" about the discrepancy between what journalists reported and the truth isn't the fact that the NSA would lie to journalists. What's striking is that journalists continue to print official, often anonymous claims about government surveillance programs without a shred of evidence that those claims are true.
This has long been the problem with journalists' reliance on "unnamed government sources." Without a name to attach the statement to, no one can be held accountable for lying to the American public. While many sources would not comment at all without the protection of anonymity, the statements issued are seldom questioned by entities with an obligation to challenge anonymous assertions.
On the other hand, emptywheel's Marcy Wheeler points out these claims may have an element of truth, but only because Snowden's leaks and problematic cell location data (which isn't specifically covered by Section 215) was preventing the agency from collecting all it wanted to, or perhaps all it used to.
We know from the Congressional notice AT&T was willing to strip [location data]. For a lot of reasons, it’s likely Verizon was unwilling to strip it.
This is one of the possible explanations I’ve posited for why NSA wasn’t getting cell data from Verizon, because any provider is only obliged to give business records they already have on hand, and it would be fairly easy to claim stripping the cell location data made it a new business record.
Which is another important piece of evidence for the case made against AT&T in the story. They were willing to play with records they were handing over to the government in ways not required by the law.
Though who knows if that remain(ed) the case? To get to the 30% figure quoted in all the pieces claiming NSA wasn’t getting cell data, you’d probably have to have AT&T excluded as well. So maybe after the Snowden releases, they, too, refused to do things they weren’t required to do by law...
So, it could very well be that the NSA wasn't getting all the cell records it wanted to, making these claims mostly factual. But the Wall Street Journal and New York Times both attribute quotes to "former officials" as well, which would include officials in place prior to the Snowden leaks. If the leaks resulted in a sudden reluctance to provide these records, it would only have occurred after June 2013. The questionable statements were made in the first few months of 2014. That's not much of a gap, especially if former officials are speaking from their personal experience.
Maybe the NSA was only getting 20-30% of what it was seeking. Or maybe it only wanted to give that impression. Nothing about the statements reflect a sudden downturn in collections. Instead, they portray it as an ongoing problem. The underlying issue is the secrecy of surveillance programs, which leads to statements that can't be confirmed (or refuted) until evidence is provided. And these officials aren't going to hand out this info. It has to come from whistleblowers and leakers. The government can skate by on lies and misperceptions, especially when national security is involved.
Other than when News Corp. used copyright to takedown its own feed from last night's GOP Presidential debates, there really wasn't much that was Techdirt-related. The only other significant moment was a bit of a debate between Chris Christie and Rand Paul concerning the NSA and government surveillance. As we've discussed before, Christie is a big time surveillance state supporter. He's argued that anyone opposed to NSA surveillance is guilty of "dangerous" thinking, has said that civil liberties worries about the NSA are "baloney" and has argued that Rand Paul is responsible for any future terrorist attacks, after Paul suggested that we shelve parts of the PATRIOT Act and obey the 4th Amendment.
The debate question focused specifically on Christie's comments that Rand Paul should be forced to appear in hearings before Congress if there's a future terrorist attack, to explain why he opposed greater surveillance. Reason summarized the back-and-forth:
“I will make no apologies ever for protecting the lives and the safety of the American people,” said Christie. “We need to give more tools to our folks to be able to do that, not fewer, and then trust those people and oversee them to do it the right way. As president, that’s exactly what I will do.”
Paul shot back immediately.
“I want to collect more records from terrorists, but less records from innocent Americans,” said Paul. “The Fourth Amendment was what we fought the Revolution over. John Adams said it was the spark that led to our War for Independence. I’m proud of standing for the Bill of Rights and I will continue to stand for the Bill of Rights.”
Christie insisted that Paul had given a “ridiculous” answer, since there is no way to tell the terrorists apart from the innocent American citizens. Paul responded that the way to discern the difference is to ask a judge for a warrant.
“I’m talking about searches, without warrants, indiscriminately of all American’s records, and that’s what I fought to end,” said Paul.
But there was one very odd moment at the very beginning, before the exchange above. Christie noted that he was appointed to his former job as a US Attorney on September 10th of 2001:
MEGYN KELLY: Do you really believe you can assign blame to Senator Paul just for opposing he bulk collection of people’s phone records in the event of a terrorist attack?
CHRISTIE: Yes, I do. And I’ll tell you why: because I’m the only person on this stage who’s actually filed applications under the Patriot Act, who has gone before the federal — the Foreign Intelligence Service court, who has prosecuted and investigated and jailed terrorists in this country after September 11th.
I was appointed U.S. attorney by President Bush on September 10th, 2001, and the world changed enormously the next day, and that happened in my state.
This is not theoretical to me. I went to the funerals. We lost friends of ours in the Trade Center that day. My own wife was two blocks from the Trade Center that day, at her office, having gone through it that morning.
I found that interesting, because I didn't know that. And perhaps the reason I didn't know that is that it's complete bullshit. As Marcy Wheeler points out on Emptywheel, Christie was actually nominated months later, with the announcement that he was going to be nominated released on December 7th, 2001
The President intends to nominate Christopher J. Christie to be United States Attorney for the District of New Jersey. Christie has been a partner with Dughi, Hewitt and Palatucci of Cranford, New Jersey since 1987. He is a graduate of the University of Delaware and Seton Hall University School of Law.
Christie took office in January 2002.
Also, it's the Foreign Intelligence Surveillance Court, not the Foreign Intelligence Service Court, as he says -- but that's the kind of thing that is probably a forgivable mistake in such a setting. But arguing that you were appointed months before you actually were seems like a pretty blatant lie and one you wouldn't make without deliberately seeking to mislead people. As Wheeler also points out, Christie's own official bio notes that he "was named U.S. Attorney for the District of New Jersey in 2002."
Also, for all his talk about he went before the court whose name he couldn't get right, that's actually not how it works. US Attorneys don't do that (others in the DOJ do it instead). Wheeler further points out that if what Christie implies is true, then he may have been making use of illegal wiretaps during his time on the job -- so perhaps that's why he doesn't want more scrutiny of the program:
Christie implies he was involved in the dragnet in question. He was US Attorney from January 2002 to December 2008 — so he in fact would have been in office during the two years when the phone dragnet worked through the Servic–um, Surveillance court, and four years of the Internet dragnet. But if, as he implies, he was involved in the dragnet for the entire span of his tenure — and remember, there were huge cases run out of Trenton right out of 9/11 — then he was also using the fruits of illegal wiretapping to do his job. Not Servic — um, Surveillance court authorized dragnets and wiretaps, but also illegal wiretaps.
Which may explain why he’s so invested in rebutting any questions about the legitimacy of the program.
Remember, when people have actually looked more closely at Christie's high profile cases, such as the Fort Dix Five, it was revealed as a totally bogus manufactured plot, in which it appears Christie pushed trumped up charges against a set of brothers who didn't seem to have anything to do with a terrorist plot at all.
One of the documents the city chose to release was the District Attorney's report on the shooting. This is where the contradictions begin. Obviously, the city thought this would be the last word in the civil suit. Statements from multiple officers all suggest the same thing: the man they intentionally shot (another caught bullet fragments to the spine during the hail of gunfire) made several "threatening" moves that left officers with no other choice but to open fire.
The 14-page report is an echo chamber. Officers, responding to a call about a bike theft, encountered three Hispanic males walking with bicycles. Having reached the unfounded conclusion that these were the suspects, they detained the men. ("Detained" being a fancy word for drew their weapons and shouted a lot.)
The report contains repeated claims by multiple officers that aren't matched by the events depicted in the video. Officers claim Ricardo Diaz Zeferino "ran towards them" and made "furtive movements" in the general area of his waistband. While the video does show Zeferino having problems keeping his hands above his head, it doesn't show much in the way of "furtive movements." It definitely doesn't show his hand "hovering" over his back pocket.
The document is a fascinating depiction of all the things that could possibly make an officer fearful -- an emotion that usually results in "discharged weapons," to use the deflective parlance of hundreds of officer-involved shooting reports: "furtive movements," other officers "seeming scared," right elbow "bowing out," "losing sight" of a hand, "big swinging motion" of Diaz's right hand, "manipulating something on the right side of his body," and so on. How a motion can simultaneously be "furtive" and "big and swinging" is beyond me, but then again, I rarely have to explain why I've shot an unarmed person.
Beyond that, there's additional claims made to buttress the righteous shoot. Diaz had a "maniacal grin." Diaz's movements became "faster and more deliberate." An officer expresses his disbelief that Diaz would ignore an order to keep his hands up, believing such disregard for authority to be indicative of Diaz's intent to kill. Another officer states he believes Diaz was "testing [the officers'] limits" and "closing the ground" between them.
Considering the official background of the shooting, it's hardly surprising the city spent several months fighting to keep this video from reaching the public. Now that it has been made public, the police department has gone into damage-control mode. At best, its efforts are inept.
Police have said the shooting was justified and that the dash cam videos from the squad cars don't tell the whole story. An attorney for the city said this week that one of the videos "looks bad" but that it was not taken from the perspective of officers.
I have no doubt that if the video were more exonerating, the city would have never a) fought the release or b) claimed the video "didn't tell the whole story." And the claim that a dashcam video is somehow not a police officer's "perspective" is completely laughable.
Even more laughable is one of the city's arguments in favor of keeping the video sealed. It basically told the judge that the high-dollar settlement was offered in part to buy silence and secrecy.
The Court's rationale for sealing the subject videos was the parties' stipulated protective order—entered against the backdrop of stalled litigation. However, the parties cannot contractually agree to deprive the public of its strong First Amendment interest in accessing these videos, which were filed in connection with a dispositive motion. Defendants assert that the videos should remain sealed because they agreed to settle the case for $4.7 million—an amount above their liability insurance policy—specifically because they expected the protective order to continue and the videos to remain secret.
The court is unimpressed by the city's "Hey, we paid good money to make this go away" argument:
However, Defendants' argument backfires here—the fact that they spent the city's money, presumably derived from taxes, only strengthens the public's interest in seeing the videos. Moreover, Defendants cannot assert a valid compelling interest in sealing the videos to cover up any wrongdoing on their part or to shield themselves from embarrassment. The only valid privacy interest in this case belongs to the Plaintiffs, who have made abundantly clear that they wish the videos to be made available to the public.
Moreover, while the videos are potentially upsetting and disturbing because of the events they depict, they are not overly gory or graphic in a way that would make them a vehicle for improper purposes.
Generally such settlements include no admission of guilt by the city—the cops involved usually keep their job, and the settlement money always comes from taxpayers, not from police officers, their unions, or their pension funds. Settlements effectively end discussions on police brutality because many people view them as victories even though they come without admissions of guilt and with the punitive bill being picked up by taxpayers, not cops.
But it didn't work here. The city paid out and still has to deal with the repercussions of its officers' actions. It has already filed an appeal with the Ninth Circuit Court. And it has received the most useless of temporary restraining orders in response:
After The Times published the videos online, 9th Circuit Judge Alex Kozinski issued an order that “the police car camera video footage shall remain under seal pending further order of this court.”
And, as long as we're talking about transparency, let's discuss the other parties involved in this case. "Interested media organizations" -- including the Associated Press, the LA Times and Bloomberg News -- all filed motions in support of the video's release. And while all were more than happy to post the video as soon as it was released, not a single one of them could be bothered to post the court order that gave them access to this footage. Once again, media outlets continue to pretend public court records are somehow proprietary information. Articles quote from the order, but apparently the $1.30 they paid to download it from PACER (if these outlets paid anything at all) entitles them to interpret public documents on our behalf, rather than allow us to read them for ourselves.
For quite some time now, there have been serious questions about how how the US was able to track down Osama bin Laden's "hiding place" to send in special forces to kill him. The story many people have heard was that the CIA was able to identify the "courier" who was used to help bin Laden communicate with the outside world, and then used that info to figure out where he was. And, a big part of that story -- especially as immortalized in the movie Zero Dark Thirty -- was that the CIA's torture program was instrumental in revealing that information. However, even before the big Senate Intelligence Committee study on the torture program was released, it was revealed that the torture program had nothing to do with identifying the courier, known as Abu Ahmed al-Kuwaiti.
However, as you may have heard over the weekend, Seymour Hersh published a somewhat epic story, arguing that almost everything about the bin Laden killing was a lie, and a bunch of stories -- including everything about al-Kuwaiti -- were made up after the fact. Hersh's story is well worth reading (as are some of the criticisms of it that question some of the details). But one key aspect of the report is that finding a courier had absolutely nothing to do with finding bin Laden. Instead, it was a so-called "walk in" -- a Pakistani intelligence official who knew that Pakistan already had captured bin Laden -- who reached out to the US, seeking the $25 million reward for information leading to bin Laden's whereabouts.
In other words, even the Senate's torture report gets the story wrong completely. In the Senate report, the identifying of al-Kuwaiti came from traditional interrogation, rather than the torture part. The CIA's response was basically that it was the torture part (the bad cop) that enabled the information to come out separately (good cop). But Hersh's report says the whole courier story is made up whole cloth. While some have questioned the details of Hersh's report, there's now independent verification from other sources to NBC that bin Laden was actually found via a "walk-in," rather than the courier (warning: stupid NBC autoplay video at that link).
In Hersh's version, the plan had been to kill bin Laden, and later (perhaps weeks later) come up with a story saying bin Laden had been killed by a drone strike. A few things went wrong -- including one of the US helicopters famously crashing, and there was enough buzz that the US rushed to publicly announce the killing, including Obama's famous speech that, apparently, created havoc since it messed up a bunch of previously agreed to things about how the killing would be presented, and was done without first clearing it with the intelligence community. This resulted in the CIA being rushed in to concoct some cover stories, and some CIA officials quickly realized that this would be a fantastic way to pretend that torture had been useful:
Gates also objected to the idea, pushed by Brennan and Leon Panetta, that US intelligence had learned of bin Laden’s whereabouts from information acquired by waterboarding and other forms of torture. ‘All of this is going on as the Seals are flying home from their mission. The agency guys know the whole story,’ the retired official said. ‘It was a group of annuitants who did it.’ (Annuitants are retired CIA officers who remain active on contract.) ‘They had been called in by some of the mission planners in the agency to help with the cover story. So the old-timers come in and say why not admit that we got some of the information about bin Laden from enhanced interrogation?’ At the time, there was still talk in Washington about the possible prosecution of CIA agents who had conducted torture.
‘Gates told them this was not going to work,’ the retired official said. ‘He was never on the team. He knew at the eleventh hour of his career not to be a party to this nonsense. But State, the agency and the Pentagon had bought in on the cover story. None of the Seals thought that Obama was going to get on national TV and announce the raid. The Special Forces command was apoplectic. They prided themselves on keeping operational security.’ There was fear in Special Operations, the retired official said, that ‘if the true story of the missions leaked out, the White House bureaucracy was going to blame it on the Seals.’
In Hersh's version of the story... the courier never even existed (bin Laden was actually pretty cut off from everything). He also notes that there was no firefight at the compound, since the Pakistanis had planned out the whole thing and made sure that no one was guarding bin Laden. But the US made up the idea of a firefight so that it could "kill off" the courier, al-Kuwaiti, who never really existed:
There was another reason to claim there had been a firefight inside the compound, the retired official said: to avoid the inevitable question that would arise from an uncontested assault. Where were bin Laden’s guards? Surely, the most sought-after terrorist in the world would have around-the-clock protection. ‘And one of those killed had to be the courier, because he didn’t exist and we couldn’t produce him. The Pakistanis had no choice but to play along with it.’
In other words, if true, not only did the torture not produce the courier, there was no courier at all. And the whole debate about whether or not Khalid Sheikh Mohammed and Hassan Ghul gave up information on al-Kuwaiti during torture efforts or during regular interrogations is entirely meaningless. The whole thing was fiction, invented after the fact. For what it's worth, there were other stories concerning the torture program that seem equally bizarre in retrospect, if Hersh's story is true. Take this Daily Beast article about al-Kuwaiti, in which it claims that one guy was interrogated, and denied ever hearing of al-Kuwaiti:
Shortly after the Sept. 11, 2001, terrorist attacks, detainees told CIA interrogators about an especially important courier who went by the name Abu Ahmad al-Kuwaiti. A series of subsequent interrogations, including one of Khalid Sheikh Mohammed, confirmed the courier's importance. In 2004, al Qaeda operative Hassan Ghul revealed that the courier was close to Faraj al-Libi, who replaced Mohammed as al Qaeda's operational commander after Mohammed's arrest. A year later, al-Libi himself was captured, and he protested so adamantly that he'd never heard of al-Kuwaiti that the CIA took it as further evidence that he was their man.
Either way, the idea that torture had anything to do with anything is growing progressively weaker... and yet, we still have people defending the torture program, and no one is ever likely to be punished legally for it.
Two very different stories, but both with some startling parallels.
First, Radley Balko's story about how police and attorneys in Louisiana apparently flat out lied to claim that a process server "assaulted" a police officer he was serving (in a police brutality case, no less). There are lots of details there, but suffice it to say, the process server, Douglas Dendinger, did not assault Chad Cassard at all -- even though he was soon arrested for it, and Cassard managed to present seven witnesses (including police officers and two prosecutors who witnessed Dendinger serving the papers on Cassard). Dendinger went through two years of hell because of this, before the case was dropped when cell phone videos made by Dendinger's wife and nephew showed that there was no assault at all. Police and prosecutors lying to protect one of their own? Sure, it happens. But now that it's been exposed, Balko has an important question:
Why aren’t the seven witnesses to Dendinger’s nonexistent assault on Cassard already facing felony charges? Why are all but one of the cops who filed false reports still wearing badges and collecting paychecks? Why aren’t the attorneys who filed false reports facing disbarment? Dendinger’s prosecutors both filed false reports, then prosecuted Dendinger based on the reports they knew were false. They should be looking for new careers — after they get out of jail.
If a group of regular citizens had pulled this on someone, they’d all likely be facing criminal conspiracy charges on top of the perjury and other charges. So why aren’t these cops and prosecutors?
I could be wrong, but my guess is that they’ll all be let off due to “professional courtesy” or some sort of exercise of prosecutorial discretion. And so the people who ought to be held to a higher standard than the rest of us will once again be held to a lower one.
Second, we have last week's story about Total Wipes sending an automated takedown notice to Google demanding tons of perfectly legitimate, non-infringing web pages be taken out of Google's index for infringement. Total Wipes blamed it on a "bug" in its program, which would be more convincing if it hadn't happened before.
The thing is, this should not even be contentious. This is how we deal with this kind of criminal act in every – every – other aspect of society. If you lie as part of commercial operations and hurt somebody else’s rights or business, you are a criminal. If you do so repeatedly or for commercial gain, direct or indirect, you’re having your ill-gotten gains seized. This isn’t rocket science. This is standard bloody operating procedure.
The copyright industry goes ballistic at this proposal, of course, and try to portray themselves as rightsless victims – when the reality is that they have been victimizing everybody else after making the entire planet rightsless before their intellectual deforestation.
The irony is that at the same time as the copyright industry opposes such penalties vehemently, arguing that they can make “innocent mistakes” in sending out nastygrams, threats, and lawsuits to single mothers, they are also arguing that the situation with distribution monopolies is always crystal clear and unmistakable to everybody else who deserve nothing but the worst. They can’t have it both ways here.
Of course, his claim that this is true in "every" other area is proven somewhat false by the first story above. But the underlying factors in both cases are nearly identical, and it actually goes back to a previous concept that Falkvinge has written about: the "high court" and the "low court." The "nobility" gets a special court when they break the law, with limited consequences. The lowly commoners have to go to the "low court" where the consequences are quite severe. Falkvinge's original point is that we still seem to have the same thing today, and that's clearly shown in both stories above.
If you're in power, you can lie about things to accuse others of serious things that can have serious consequences for them, and there's no real punishment. Instead, it's brushed off as not being important -- sometimes with expressions of understanding about how "these things can happen." I'm reminded of the phrase that we "judge ourselves according to our intentions, but others based on their actions," and that seems to be partly at work here as well (though I question the "intentions" of the prosecutors who lied above). The lies are written off as minor "mistakes," whereas those accused are given no such benefit of the doubt. It's a big problem in the copyright space, certainly, but it's true in many other areas of society as well.
from the YOU-TOO-CAN-SUPPORT-THIS-LIE-ON-LESS-THAN-A-CONUNDRUM-A-DAY! dept
I don't care who you are (even, say… the government), but if you're going to tell two different versions of a story, it helps to not have both in print and publicly available.
The Justice Department said in a statement on Tuesday that its investigators had looked at the full version of the Senate Intelligence Committee report “and did not find any new information that they had not previously considered in reaching their determination,” adding that Mr. Durham’s “inquiry was extraordinarily thorough and we stand by our previously announced decision not to initiate criminal charges.”
"None of the defendant agencies have freely used the Full Report; they have kept it stored in a [sensitive compartmented information facility], with limited access," the government’s declaration reads. "Neither [the Department of Justice] nor [the Department of State], moreover, has even opened the package with the disc containing the full Report. And CIA and [the Department of Defense] have carefully limited access to and made only very limited use of the Report."
In both cases, the DOJ is justifying continued secrecy, but in only one case does it claim to be intimately familiar with the subject matter. So, which version of the DOJ's story is true? One would hope the declaration before the court would be the truthful statement, but you know what they say about "wishing with one hand." By the time you've worked your way through that process, your faith in the government dies a little more and you've defecated in your own hand -- neither of which are pleasant outcomes.
The only certainty here is that the DOJ will say whatever it wants to say in order to further its position. And that position is: shut up and stop asking. We're not going to let you see the full Torture Report. Another powerful blow against for government secrecy has been struck by the Most Transparent Administration in History. You may now continue your wholly sarcastic chants of "USA! USA! USA!"
Then, the government changed its mind, conceding that thousands of pages of evidence that should have been given to McDavid's defense attorney years ago – including love notes to a young woman who turned out to be an FBI plant – had instead been secretly held in an FBI file in Sacramento until recently. The best course of action, the government ultimately decided, was to set McDavid free.
"I've never heard or seen of anything like this," said U.S. District Judge Morrison C. England Jr., who originally sentenced McDavid. The judge ordered him released in accord with an unusual agreement between prosecutors and his appellate attorneys.
The judge demanded answers from the prosecution as to how this could have happened. From what's reported by the Sacramento Bee, it appears those answers -- like the previously-missing evidence -- were nowhere to be found.
"I sat through the 10-day trial of Mr. McDavid," a clearly exasperated England said, sometimes stopping to hold his head in his left hand.
"I know he's not necessarily a choirboy, but he doesn't deserve to go through this, either. It's not fair."
Officials from the US Attorney's office joined Assistant US Attorney Andre Espinosa, but the brain trust came up with nothing.
Espinosa and John Vincent, chief of the U.S. attorney's criminal division, said the documents had remained in the FBI's possession in a file in Sacramento.
"We don't know exactly why they weren't turned over," Vincent told the judge.
Great answer. Even better, the government contends that even if it had managed to turn over the evidence in a timely fashion, it still probably could have secured a conviction. But actions speak louder than this attempt to wedge an undeserved last word in sideways. McDavid is a free man after pleading guilty to a single conspiracy charge. And even that's questionable. From what's been turned over, it appears McDavid was another one of the FBI's "homegrown terrorists."
Despite Thursday's guilty plea, his supporters say McDavid was never guilty of anything more serious than falling for a comely 18-year-old woman he met at an Iowa meeting in 2004, a woman who later prodded him to take violent action against government targets with promises that they would later consummate a romantic relationship.
The woman, named in court documents and at the trial only as "Anna," turned out to be an FBI informant and played a critical role in McDavid's arrest, as well as his release Thursday… Court documents spell out in detail how "Anna" provided money, transportation, housing and food to McDavid and his two co-defendants over an 18-month period, evidence his lawyers say shows the entire case was about entrapment rather than stopping terrorist attacks.
McDavid's lawyer got in his own last word, a bit more deserved than the US Attorney General's office.
"I hope she's not ruining someone else's innocent life."
Keep hope alive. This is has been the main component of the FBI's counterterrorism efforts: plots designed, built and put into motion by FBI informants and undercover agents, utilizing whatever weak-willed or weak-minded individuals they happen to talk into participating. Feeling any safer, America? Self-motivated terrorists roam free while the FBI plays dress-up with the easily-flattered and easily-duped.
The three targeted in this investigation were urged on by "Anna." None of them had previous convictions. The arrests followed the purchase of household chemicals, supposedly for bomb-making. This was the culmination of a two-year "investigation" during which "Anna" repeatedly pushed the three men towards bombing targets in the area. Much of what was presented to the jurors was personal testimony by Anna that could not be corroborated by video or audio recordings (Anna frequently wore a wire and many of the meetings took place in her cabin, which had surveillance cameras installed). So, the FBI presented plenty of hearsay while withholding thousands of pages of evidence. Our words against yours.
In the end, "our word" wasn't enough. McDavid -- more lovestruck fool than eco-terrorist -- is free and the world is no more dangerous than it would have been if he was incarcerated. Any bets that the FBI will be more forthcoming in the future? I'm guessing it won't. Why should it? All it lost here was someone it had groomed for arrest. It didn't lose a threat, or a public enemy. Win a few, lose a few. It will continue to play terrorist charades because it pays as much as real investigative work, but has a much higher chance of success.
from the I-swear-I-thought-you'd-never-find-out! dept
Former CIA director Michael Hayden warned anyone who would listen that the release of the Torture Report would turn our enemies against us… or further against us, or something. He also claimed that he and the CIA had been generally forthright and open about this program over the past several years.
"To say that we relentlessly, over an expanded period of time, lied to everyone about a program that wasn't doing any good, that beggars the imagination," Hayden said on CBS's "Face the Nation."
Well... Prepare to have your imaginations beggared! Here's Michael Hayden's relentless lies, told over an expanded period of time, about a program that wasn't doing any good, as documented in the Senate Committee's report. [pdf link]
Briefings to the full Committee beginning on September 6, 2006, also contained numerous inaccuracies, including inaccurate descriptions of how interrogation techniques were applied and what information was obtained from CIA detainees. The CIA misrepresented the views of members of Congress on a number of occasions. After multiple senators had been critical of the program and written letters expressing concerns to CIA Director Michael Hayden, Director Hayden nonetheless told a meeting of foreign ambassadors to the United States that every Committee member was "fully briefed," and that "[t]his is not CIA's program. This is not the President's program. This is America's program." The CIA also provided inaccurate information describing the views of U.S. senators about the program to the Department of Justice.
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A February 2007 report from the International Committee of the Red Cross (ICRC), which the CIA acting general counsel initially stated "actually does not sound that far removed from the reality" was also criticized. CIA officers prepared documents indicating that "critical portions of the Report are patently false or misleading, especially certain key factual claims. CIA Director Hayden testified to the Committee that "numerous false allegations of physical and threatened abuse and faulty legal assumptions and analysis in the [ICRC] report undermine its overall credibility.'"
The committee has given us instead a one-sided study marred by errors of fact and interpretation—essentially a poorly done and partisan attack on the agency that has done the most to protect America after the 9/11 attacks.
Nice touch, the "partisan" thing. Distracts people from the real issue. (See also: the abysmal comment section following the editorial.) Back to Hayden's inaccuracies.
In December 2003, a CIA Station overseeing CIA detention operations in Country [x] informed CIA Headquarters that it had made the "unsettling discovery" that the CIA was "holding a number of detainees about whom" it knew "very little," Nearly five years later, in late 2008, the CIA attempted to determine how many individuals the CIA had detained. At the completion of the review, CIA leaders, including CIA Director Michael Hayden, were informed that the review found that the CIA had detained at least 112 individuals, and possibly more.
CIA Director Hayden typically described the program as holding "fewer than a hundred" detainees. For example, in testimony before the Committee on February 4, 2008, in response to a question from Chairman Rockefeller during an open hearing, Hayden stated, "[i]n the life of the CIA detention program we have held fewer than a hundred people." {See DTS #2008-1140.) Specific references to "98" detainees were included in a May 5, 2006, House Permanent Select Committee on Intelligence (HPSCI) report on Renditions, Detentions and Interrogations.
To Michael Hayden, this margin of error was acceptable.
According to tlie CIA's June 2013 Response, "Hayden did not view the discrepancy, if it existed, as particularly significant given that, if true, it would increase the total number by just over 10 percent."
Even so, he then directed a CIA officer to alter reality to match his well-worn claim of 98 detainees
According to an email summarizing the meeting, CIA Director Hayden instructed a CIA officer to devise a way to keep the number of CIA detainees at the same number the CIA had previously briefed to Congress. The email, which the briefer sent only to himself, stated:
"I briefed the additional CIA detainees that could be included in RDI numbers. DCIA instructed me to keep the detainee number at 98 ~ pick whatever date i [sic] needed to make that happen but the number is 98."
Moving on...
Contrary to statements later made by CIA Director Michael Hayden and other CIA officials that "[a]ll those involved in the questioning of detainees are carefully chosen and screened for demonstrated professional judgment and maturity, CIA records suggest that the vetting sought by [redacted] did not take place.
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In testimony on April 12, 2007, CIA Director Michael Hayden referenced medical care of detainees in the context of the ICRC report on CIA detentions. Hayden testified to the Committee; "The medical section of the ICRC report concludes that the association of CIA medical officers with the interrogation program is 'contrary to international standards of medical ethics.' That is just wrong. The role of CIA medical officers in the detainee program is and always has been and always will be to ensure the safety and the well-being of the detainee. The placement of medical officers during the interrogation techniques represents an extra measure of caution. Our medical officers do not recommend the employment or continuation of any procedures or techniques. The allegation in the report that a CIA medical officer threatened a detainee, stating that medical care was conditional on cooperation is blatantly false. Healthcare has always been administered based upon detainee needs. It's neither policy nor practice to link medical care to any other aspect of the detainee program." This testimony was incongruent with CIA records.
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CIA Director Hayden prepared a statement that relayed, "despite what you have heard or read in a variety of public fora, these [enhanced interrogation] techniques and this program did work." The prepared materials included inaccurate information on the operation and management of the CIA's Detention and Interrogation Program, as well as the same set of examples of the "effectiveness" of the CIA's enhanced interrogation techniques that the CIA had provided to policymakers over several years. The examples provided were nearly entirely inaccurate.
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Similarly, CIA Director Michael Hayden represented to the Committee on April 12, 2007, that "KSM also provided the first lead to an operative known as 'Issa al-Hindi,' with other detainees giving additional identifying information." The CIA provided similar inaccurate representations regarding the thwarting of the United Kingdom Urban Targets Plot and the identification and/or arrest of Dhiren Barot, aka Abu Issa al-Hindi, in 17 of the 20 documents provided to policymakers and the Department of Justice between July 2003 and March 2009.
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The CIA represented that CIA detainee Abu Zubaydah provided "important" and "vital" information by identifying Khalid Sheikh Mohammed (KSM) as the mastermind behind the attacks of September 11, 2001 CIA Director Hayden told the Committee on April 12, 2007, that:
"..it was Abu Zubaydah, early in his detention, who identified KSM as the mastermind of 9/11. Until that time, KSM did not even appear in our chart of key al-Qa'ida members and associates."
On at least two prominent occasions, the CIA represented, inaccurately, that Abu Zubaydah provided this information after the use of the CIA's enhanced interrogation techniques.
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On November 16, 2006, CIA Director Hayden briefed the Committee. The briefing included inaccurate information, including on the CIA's use of dietary manipulation and nudity, as well as the effects of sleep deprivation.
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Director Hayden testified that detainees were never provided fewer than 1,000 calories a day. This is inaccurate. There were no calorie requirements until May 2004, and draft OMS guidelines from March 2003 indicated that "[b]rief periods in which food is withheld(1-2 days), as an adjunct to interrogations are acceptable."
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Director Hayden testified that detainees were "not paraded [nude] in front of anyone," whereas a CIA interrogator told the inspector general that nude detainees were "kept a center area outside the interrogation room," and were "'walked around' by guards.'"
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February 14, 2007, during a hearing on CIA renditions, Director Hayden provided inaccurate information to the Committee, to include inaccurate information on the number of detainees held by the CIA.
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At the April 12, 2007, hearing, Director Hayden verbally provided extensive inaccurate information on, among other topics: (1) the interrogation of Abu Zubaydah, (2) the application of Department of Defense survival school practices to the program, (3) detainees' counter-interrogation training, (4) the backgrounds of CIA interrogators, (5) the role of other members of the interrogation teams, (6) the number of CIA detainees and their intelligence production, (7) the role of CIA detainee reporting in the captures of terrorist suspects, (8) the interrogation process, (9) the use of detainee reporting, (10) the purported relationship between Islam and the need to use the CIA's enhanced interrogation techniques, (11) threats against detainees' families, (12) the punching and kicking of detainees, (13) detainee hygiene, (14) denial of medical care, (15) dietary manipulation, (16) the use of waterboarding and its effectiveness, and (17) the injury and death of detainees.
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At the CIA briefing to the Committee on December 11, 2007, Director Hayden testified about: (1) the information provided to the White House regarding the videotapes, (2) what the tapes revealed, (3) what was not on the tapes, (4) the reasons for their destruction, (5) the legal basis for the use of the waterboard, and (6) the effectiveness of the CIA's waterboard interrogation technique. Much of this testimony was inaccurate or incomplete.
This certainly seems like the record of relentless lying over a period of several years, contrary to Hayden's assertions. There are a few ways of viewing this, none of which cast Hayden in a flattering light. Given the comprehensive detailing of his inaccurate statements delivered as the director of the CIA, you have to assume he's either a) a liar or b) incompetent. Even if he lied to (in his mind) protect America, he still lied. Given other statements he's made about the supposed value of the program, the pendulum swings towards "liar."
He lied to protect a program he thought was valuable, even when the CIA's own documents and findings contradicted this belief. The pendulum swings toward "incompetent," but doesn't quite make it that far. There's far too much calculation lying below the obfuscation to believe Hayden didn't know exactly what he was doing when he spent briefing after briefing and hearing after hearing lying to his overseers about the extent of the program and the hideous details he was actively hiding from them.
It would almost seem as though Hayden's concerns about the safety of the country are simply a projection of his concerns about what the report reveals about him. This is the guy who wants the public to believe the CIA was screwed by a partisan hatchet job and that domestic surveillance programs are every bit as necessary as torture when it comes to hunting down terrorists. But his own words and actions show he shouldn't be trusted with an op-ed, much less the safety of American people.
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