The Justice Department has been awarded the Rosemary Award for Worst Open Government Performance .
The prize — awarded by the National Security Archive, which is based at George Washington University — is named after Watergate figure Rose Mary Woods, President Richard Nixon’s secretary who erased 18-some minutes of important Oval Office tapes.
In its report, directorTom Blanton said, “Justice edged out a crowded field of contending agencies and career officials who seem in practical rebellion against President [Barack] Obama’s open-government orders.”
Obama in 2009 issued a memo ordering improved openness and transparency, pointing to a greater “presumption of favor” of Freedom of Information Act requests. Attorney General Eric Holder followed suit with guidance to federal agencies that reversed then-Attorney General John Ashcroft’s October 2001 policy of denying records requests whenever legally possible.
At the time, Holder’s guidance was seen as a repudiation of George W. Bush-era secrecy. But those times have changed.
The watchdog group’s report found that the Justice Department has moved forward with “abusive prosecutions using espionage laws against whistleblowers as ostensible ‘leakers’ of classified information,” a mixed record on information requests and “recycled legal arguments for greater secrecy throughout the Justice’s litigation posture.”
The report found that there have been more ‘leaker’ prosecutions in the last three years than all previous years combined.
The department has failed to be the “change agent and role model” for Obama’s FOIA reforms that it promised to be, the report states.
Former Public Integrity Section chief William M. Welch II is “the single individual in 2011 who did the most to stomp on President Obama’s open government message,” the watchdog group said, pointing to Welch’s leading role prosecuting government employees who leaked information to the press. Welch has also come under scrutiny in the botched prosecution of former Alaska Sen. Ted Stevens.
WAVERLY - Years before Coleen Rowley found national attention for revealing government mistakes prior to the Sept. 11 attacks, she supported President Bush.
"I believed he would reduce the deficit and play nice with other countries. I actually believed that."
On Wednesday, the former Federal Bureau of Investigation agent urged Wartburg College students not to be fooled again. Rowley, a New Hampton native, said radical Republicans have hijacked the party, and the 2006 election is the time to stop their efforts.
"I'm 51, and I've never seen a situation like this that is facing our country right now," she said. "I honesty don't think we have had these problems."
Rowley gained national recognition in 2002 for charging FBI supervisors blew a chance to unravel the Sept. 11 hijacking plot. Time Magazine named the Wartburg alum a person of the year for blowing the whistle on superiors. In 2003, before leaving the agency, Rowley opposed the Iraq War in front of a Senate committee.
She is now running for Congress in Minnesota's 2nd District. She was at Wartburg to inspire student Democrats.
"My last visit here was in 2002, and each time I come back to this place, it's a reminder - a humbling experience," she said.
Rowley, once a Republican, said she became a Democrat, because she doesn't agree with new conservative leadership.
"I don't think conservatives have changed," she said. "What has changed is the group that has grabbed power."
Rowley said President Bush believes he can create his own realities. But in the true reality is his policies have injured the nation, increasing the threat of war and terrorism and eroding civil rights.
"I would be willing to give up my privacy if we were getting something out of it, but what are we getting out of it?" she asked. "I would argue that terrorism has increased."
Rowley believes voters need to come forward to return the United States to its foundation.
By Hugh O'Shaughnessy, Guardian UK
enedict XVI gave us words of great comfort and encouragement in the message he delivered on Christmas Eve.
"God anticipates us again and again in unexpected ways," the pope said. "He does not cease to search for us, to raise us up as often as we might need. He does not abandon the lost sheep in the wilderness into which it had strayed. God does not allow himself to be confounded by our sin. Again and again he begins afresh with us".
If these words comforted and encouraged me they will surely have done the same for leaders of the church in Argentina, among many others. To the judicious and fair-minded outsider it has been clear for years that the upper reaches of the Argentine church contained many "lost sheep in the wilderness", men who had communed and supported the unspeakably brutal Western-supported military dictatorship which seized power in that country in 1976 and battened on it for years. Not only did the generals slaughter thousands unjustly, often dropping them out of aeroplanes over the River Plate and selling off their orphan children to the highest bidder, they also murdered at least two bishops and many priests. Yet even the execution of other men of the cloth did nothing to shake the support of senior clerics, including representatives of the Holy See, for the criminality of their leader General Jorge Rafael Videla and his minions.
As it happens, in the week before Christmas in the city of Córdoba Videla and some of his military and police cohorts were convicted by their country's courts of the murder of 31 people between April and October 1976, a small fraction of the killings they were responsible for. The convictions brought life sentences for some of the military. These were not to be served, as has often been the case in Argentina and neighbouring Chile, in comfy armed forces retirement homes but in common prisons. Unsurprisingly there was dancing in the city's streets when the judge announced the sentences.
What one did not hear from any senior member of the Argentine hierarchy was any expression of regret for the church's collaboration and in these crimes. The extent of the church's complicity in the dark deeds was excellently set out by Horacio Verbitsky, one of Argentina's most notable journalists, in his book El Silencio (Silence). He recounts how the Argentine navy with the connivance of Cardinal Jorge Bergoglio, now the Jesuit archbishop of Buenos Aires, hid from a visiting delegation of the Inter-American Human Rights Commission the dictatorship's political prisoners. Bergoglio was hiding them in nothing less than his holiday home in an island called El Silencio in the River Plate. The most shaming thing for the church is that in such circumstances Bergoglio's name was allowed to go forward in the ballot to chose the successor of John Paul II. What scandal would not have ensued if the first pope ever to be elected from the continent of America had been revealed as an accessory to murder and false imprisonment
One would have thought that the Argentine bishops would have seized the opportunity to call for pardon for themselves and put on sackcloth and ashes as the sentences were announced in Córdoba but that has not so far happened.
But happily Their Eminences have just been given another chance to express contrition. Next month the convicted murderer Videla will be arraigned for his part in the killing of Enrique Angelelli, bishop of the Andean diocese of La Rioja and a supporter of the cause of poorer Argentines. He was run off the highway by a hit squad of the Videla régime and killed on 4th August 1976 shortly after Videla's putsch.
Cardinal Bergoglio has plenty of time to be measured for a suit of sackcloth – perhaps tailored in a suitable clerical grey - to be worn when the church authorities are called into the witness box by the investigating judge in the Angelelli case. Ashes will be readily available if the records of the Argentine bishops' many disingenuous and outrightly mendacious statements about Videla and Angelelli are burned.
Paranoid Shift By Michael Hasty January 10, 2004: (Online Journal) Just before his death, James Jesus Angleton, the legendary chief of counterintelligence at the Central Intelligence Agency, was a bitter man. He felt betrayed by the people he had worked for all his life. In the end, he had come to realize that they were never really interested in American ideals of "freedom" and "democracy." They really only wanted "absolute power." Angleton told author Joseph Trento that the reason he had gotten the counterintelligence job in the first place was by agreeing not to submit "sixty of Allen Dulles' closest friends" to a polygraph test concerning their business deals with the Nazis. In his end-of-life despair, Angleton assumed that he would see all his old companions again "in hell." The transformation of James Jesus Angleton from an enthusiastic, Ivy League cold warrior, to a bitter old man, is an extreme example of a phenomenon I call a "paranoid shift." I recognize the phenomenon, because something similar happened to me. Although I don't remember ever meeting James Jesus Angleton, I worked at the CIA myself as a low-level clerk as a teenager in the '60s. This was at the same time I was beginning to question the government's actions in Vietnam. In fact, my personal "paranoid shift" probably began with the disillusionment I felt when I realized that the story of American foreign policy was, at the very least, more complicated and darker than I had hitherto been led to believe. But for most of the next 30 years, even though I was a radical, I nevertheless held faith in the basic integrity of a system where power ultimately resided in the people, and whereby if enough people got together and voted, real and fundamental change could happen. What constitutes my personal paranoid shift is that I no longer believe this to be necessarily true. In his book, "Rogue State: A Guide to the World's Only Superpower," William Blum warns of how the media will make anything that smacks of "conspiracy theory" an immediate "object of ridicule." This prevents the media from ever having to investigate the many strange interconnections among the ruling class—for example, the relationship between the boards of directors of media giants, and the energy, banking and defense industries. These unmentionable topics are usually treated with what Blum calls "the media's most effective tool—silence." But in case somebody's asking questions, all you have to do is say, "conspiracy theory," and any allegation instantly becomes too frivolous to merit serious attention. On the other hand, since my paranoid shift, whenever I hear the words "conspiracy theory" (which seems more often, lately) it usually means someone is getting too close to the truth. Take September 11—which I identify as the date my paranoia actually shifted, though I didn't know it at the time. Unless I'm paranoid, it doesn't make any sense at all that George W. Bush, commander-in-chief, sat in a second-grade classroom for 20 minutes after he was informed that a second plane had hit the World Trade Center, listening to children read a story about a goat. Nor does it make sense that the Number 2 man, Dick Cheney—even knowing that "the commander" was on a mission in Florida—nevertheless sat at his desk in the White House, watching TV, until the Secret Service dragged him out by the armpits. Unless I'm paranoid, it makes no sense that Defense Secretary Donald Rumsfeld sat at his desk until Flight 77 hit the Pentagon—well over an hour after the military had learned about the multiple hijacking in progress. It also makes no sense that the brand-new chairman of the Joint Chiefs of Staff sat in a Senate office for two hours while the 9/11 attacks took place, after leaving explicit instructions that he not be disturbed—which he wasn't. In other words, while the 9/11 attacks were occurring, the entire top of the chain of command of the most powerful military in the world sat at various desks, inert. Why weren't they in the "Situation Room?" Don't any of them ever watch "West Wing?" In a sane world, this would be an object of major scandal. But here on this side of the paranoid shift, it's business as usual. Years, even decades before 9/11, plans had been drawn up for American forces to take control of the oil interests of the Middle East, for various imperialist reasons. And these plans were only contingent upon "a catastrophic and catalyzing event, like a new Pearl Harbor," to gain the majority support of the American public to set the plans into motion. When the opportunity presented itself, the guards looked the other way . . . and presto, the path to global domination was open. Simple, as long as the media played along. And there is voluminous evidence that the media play along. Number one on Project Censored's annual list of underreported stories in 2002 was the Project for a New American Century (now the infrastructure of the Bush Regime), whose report, published in 2000, contains the above "Pearl Harbor" quote. Why is it so hard to believe serious people who have repeatedly warned us that powerful ruling elites are out to dominate "the masses?" Did we think Dwight Eisenhower was exaggerating when he warned of the extreme "danger" to democracy of "the military industrial complex?" Was Barry Goldwater just being a quaint old-fashioned John Bircher when he said that the Trilateral Commission was "David Rockefeller's latest scheme to take over the world, by taking over the government of the United States?" Were Teddy and Franklin Roosevelt or Joseph Kennedy just being class traitors when they talked about a small group of wealthy elites who operate as a hidden government behind the government? Especially after he died so mysteriously, why shouldn't we believe the late CIA Director William Colby, who bragged about how the CIA "owns everyone of any major significance in the major media?" Why can't we believe James Jesus Angleton—a man staring eternal judgment in the face—when he says that the founders of the Cold War national security state were only interested in "absolute power?" Especially when the descendant of a very good friend of Allen Dulles now holds power in the White House. Prescott Bush, the late, aristocratic senator from Connecticut, and grandfather of George W Bush, was not only a good friend of Allen Dulles, CIA director, president of the Council on Foreign Relations, and international business lawyer. He was also a client of Dulles' law firm. As such, he was the beneficiary of Dulles' miraculous ability to scrub the story of Bush's treasonous investments in the Third Reich out of the news media, where it might have interfered with Bush's political career . . . not to mention the presidential careers of his son and grandson. Recently declassified US government documents, unearthed last October by investigative journalist John Buchanan at the New Hampshire Gazette, reveal that Prescott Bush's involvement in financing and arming the Nazis was more extensive than previously known. Not only was Bush managing director of the Union Banking Corporation, the American branch of Hitler's chief financier's banking network; but among the other companies where Bush was a director—and which were seized by the American government in 1942, under the Trading With the Enemy Act—were a shipping line which imported German spies; an energy company that supplied the Luftwaffe with high-ethyl fuel; and a steel company that employed Jewish slave labor from the Auschwitz concentration camp. Like all the other Bush scandals that have been swept under the rug in the privatized censorship of the corporate media, these revelations have been largely ignored, with the exception of a single article in the Associated Press. And there are those, even on the left, who question the current relevance of this information. But Prescott Bush's dealings with the Nazis do more than illustrate a family pattern of genteel treason and war profiteering—from George Senior's sale of TOW missiles to Iran at the same time he was selling biological and chemical weapons to Saddam Hussein, to Junior's zany misadventures in crony capitalism in present-day Iraq. More disturbing by far are the many eerie parallels between Adolph Hitler and George W. Bush: A conservative, authoritarian style, with public appearances in military uniform (which no previous American president has ever done while in office). Government by secrecy, propaganda and deception. Open assaults on labor unions and workers' rights. Preemptive war and militant nationalism. Contempt for international law and treaties. Suspiciously convenient "terrorist" attacks, to justify a police state and the suspension of liberties. A carefully manufactured image of "The Leader," who's still just a "regular guy" and a "moderate." "Freedom" as the rationale for every action. Fantasy economic growth, based on unprecedented budget deficits and massive military spending. And a cold, pragmatic ideology of fascism—including the violent suppression of dissent and other human rights; the use of torture, assassination and concentration camps; and most important, Benito Mussolini's preferred definition of "fascism" as "corporatism, because it binds together the interests of corporations and the state." By their fruits, you shall know them. What perplexes me most is probably the same question that plagues most paranoiacs: why don't other people see these connections? Oh, sure, there may be millions of us, lurking at websites like Online Journal, From the Wilderness, Center for Cooperative Research, and the Center for Research on Globalization, checking out right-wing conspiracists and the galaxy of 9/11 sites, and reading columnists like Chris Floyd at the Moscow Times, and Maureen Farrell at Buzzflash. But we know we are only a furtive minority, the human remnant among the pod people in the live-action, 21st-century version of "Invasion of the Body Snatchers." And being paranoid, we have to figure out, with an answer that fits into our system, why more people don't see the connections we do. Fortunately, there are a number of possible explanations. First on the list would have to be what Marshal McLuhan called the "cave art of the electronic age:" advertising. Joseph Goebbels, Hitler's Karl Rove, gave credit for most of his ideas on how to manipulate mass opinion to American commercial advertising, and to the then-new science of "public relations." But the public relations universe available to the corporate empire that rules the world today makes the Goebbels operation look primitive. The precision of communications technology and graphics; the century of research on human psychology and emotion; and the uniquely centralized control of triumphant post-Cold War monopoly capitalism, have combined to the point where "the manufacture of consent" can be set on automatic pilot. A second major reason people won't make the paranoid shift is that they are too fundamentally decent. They can't believe that the elected leaders of our country, the people they've been taught through 12 years of public school to admire and trust, are capable of sending young American soldiers to their deaths and slaughtering tens of thousands of innocent civilians, just to satisfy their greed—especially when they're so rich in the first place. Besides, America is good, and the media are liberal and overly critical. Third, people don't want to look like fools. Being a "conspiracy theorist" is like being a creationist. The educated opinion of eminent experts on every TV and radio network is that any discussion of "oil" being a motivation for the US invasion of Iraq is just out of bounds, and anyone who thinks otherwise is a "conspiracy theorist." We can trust the integrity of our 'no-bid" contracting in Iraq, and anyone who thinks otherwise is a "conspiracy theorist." Of course, people sometimes make mistakes, but our military and intelligence community did the best they could on and before September 11, and anybody who thinks otherwise is a "conspiracy theorist." Lee Harvey Oswald was the sole assassin of JFK, and anyone who thinks otherwise is a "conspiracy theorist." Perhaps the biggest hidden reason people don't make the paranoid shift is that knowledge brings responsibility. If we acknowledge that an inner circle of ruling elites controls the world's most powerful military and intelligence system; controls the international banking system; controls the most effective and far-reaching propaganda network in history; controls all three branches of government in the world's only superpower; and controls the technology that counts the people's votes, we might be then forced to conclude that we don't live in a particularly democratic system. And then voting and making contributions and trying to stay informed wouldn't be enough. Because then the duty of citizenship would go beyond serving as a loyal opposition, to serving as a "loyal resistance"—like the Republicans in the Spanish Civil War, except that in this case the resistance to fascism would be on the side of the national ideals, rather than the government; and a violent insurgency would not only play into the empire's hands, it would be doomed from the start. Forming a nonviolent resistance movement, on the other hand, might mean forsaking some middle class comfort, and it would doubtless require a lot of work. It would mean educating ourselves and others about the nature of the truly apocalyptic beast we face. It would mean organizing at the most basic neighborhood level, face to face. (We cannot put our trust in the empire's technology.) It would mean reaching across turf lines and transcending single-issue politics, forming coalitions and sharing data and names and strategies, and applying energy at every level of government, local to global. It would also probably mean civil disobedience, at a time when the Bush regime is starting to classify that action as "terrorism." In the end, it may mean organizing a progressive confederacy to govern ourselves, just as our revolutionary founders formed the Continental Congress. It would mean being wise as serpents, and gentle as doves. It would be a lot of work. It would also require critical mass. A paradigm shift. But as a paranoid, I'm ready to join the resistance. And the main reason is I no longer think that the "conspiracy" is much of a "theory." That the US House of Representatives Select Committee on Assassinations concluded that the murder of John Fitzgerald Kennedy was "probably" the result of "a conspiracy," and that 70 percent of Americans agree with this conclusion, is not a "theory." It's fact. That the Bay of Pigs fiasco, "Operation Zapata," was organized by members of Skull and Bones, the ghoulish and powerful secret society at Yale University whose membership also included Prescott, George Herbert Walker and George W Bush; that two of the ships that carried the Cuban counterrevolutionaries to their appointment with absurdity were named the "Barbara" and the "Houston"—George HW Bush's city of residence at the time—and that the oil company Bush owned, then operating in the Caribbean area, was named "Zapata," is not "theory." It's fact. That George Bush was the CIA director who kept the names of what were estimated to be hundreds of American journalists, considered to be CIA "assets," from the Church Committee, the US Senate Intelligence Committe chaired by Senator Frank Church that investigated the CIA in the 1970s; that a 1971 University of Michigan study concluded that, in America, the more TV you watched, the less you knew; and that a recent survey by international scholars found that Americans were the most "ignorant" of world affairs out of all the populations they studied, is not a "theory." It's fact. That the Council on Foreign Relations has a history of influence on official US government foreign policy; that the protection of US supplies of Middle East oil has been a central element of American foreign policy since the Second World War; and that global oil production has been in decline since its peak year, 2000, is not "theory." It's fact. That, in the early 1970s, the newly-formed Trilateral Commission published a report which recommended that, in order for "globalization" to succeed, American manufacturing jobs had to be exported, and American wages had to decline, which is exactly what happened over the next three decades; and that, during that same period, the richest one percent of Americans doubled their share of the national wealth, is not "theory." It's fact. That, beyond their quasi-public role as agents of the US Treasury Department, the Federal Reserve Banks are profit-making corporations, whose beneficiaries include some of America's wealthiest families; and that the United States has a virtual controlling interest in the World Bank, the International Monetary Fund, and the World Trade Organization, the three dominant global financial institutions, is not a "theory." It's fact. That—whether it's heroin from Southeast Asia in the '60s and '70s, or cocaine from Central America and heroin from Afghanistan in the '80s, or cocaine from Colombia in the '90s, or heroin from Afghanistan today—no major CIA covert operation has ever lacked a drug smuggling component, and that the CIA has hired Nazis, fascists, drug dealers, arms smugglers, mass murderers, perverts, sadists, terrorists and the Mafia, is not "theory." It's fact. That the international oil industry is the dominant player in the global economy; that the Bush family has a decades-long business relationship with the Saudi royal family, Saudi oil money, and the family of Osama bin Laden; that, as president, both George Bushes have favored the interests of oil companies over the public interest; that both George Bushes have personally profited financially from Middle East oil; and that American oil companies doubled their records for quarterly profits in the months just preceding the invasion of Iraq, is not "theory." It's fact. That the 2000 presidential election was deliberately stolen; that the pro-Bush/anti-Gore bias in the corporate media had spiked markedly in the last three weeks of the campaign; that corporate media were then virtually silent about the Florida recount; and that the Bush 2000 team had planned to challenge the legitimacy of the election if George W had won the popular, but lost the electoral vote—exactly what happened to Gore—is not "theory." It's fact. That the intelligence about Iraq's weapons of mass destruction was deceptively "cooked" by the Bush administration; that anybody paying attention to people like former UN weapons inspector Scott Ritter, knew before the invasion that the weapons were a hoax; and that American forces in Iraq today are applying the same brutal counterinsurgency tactics pioneered in Central America in the 1980s, under the direct supervision of then-Vice President George HW Bush, is not a "theory." It's fact. That "Rebuilding America's Defenses," the Project for a New American Century's 2000 report, and "The Grand Chessboard," a book published a few years earlier by Trilateral Commission co-founder Zbigniew Brzezinski, both recommended a more robust and imperial US military presence in the oil basin of the Middle East and the Caspian region; and that both also suggested that American public support for this energy crusade would depend on public response to a new "Pearl Harbor," is not "theory." It's fact. That, in the 1960s, the Joint Chiefs of Staff unanimously approved a plan called "Operation Northwoods," to stage terrorist attacks on American soil that could be used to justify an invasion of Cuba; and that there is currently an office in the Pentagon whose function is to instigate terrorist attacks that could be used to justify future strategically-desired military responses, is not a "theory." It's fact. That neither the accusation by former British Environmental Minister Michael Meacham, Tony Blair's longest-serving cabinet minister, that George W Bush allowed the 9/11 attacks to happen to justify an oil war in the Middle East; nor the RICO lawsuit filed by 9/11 widow Ellen Mariani against Bush, Cheney, Rumsfeld and the Council on Foreign Relations (among others), on the grounds that they conspired to let the attacks happen to cash in on the ensuing war profiteering, has captured the slightest attention from American corporate media is not a "theory." It's fact. That the FBI has completely exonerated—though never identified—the speculators who purchased, a few days before the attacks (through a bank whose previous director is now the CIA executive director), an unusual number of "put" options, and who made millions betting that the stocks in American and United Airlines would crash, is not a "theory." It's fact. That the US intelligence community received numerous warnings, from multiple sources, throughout the summer of 2001, that a major terrorist attack on American interests was imminent; that, according to the chair of the "independent" 9/11 commission, the attacks "could have and should have been prevented," and according to a Senate Intelligence Committee member, "All the dots were connected;" that the White House has verified George W Bush's personal knowledge, as of August 6, 2001, that these terrorist attacks might be domestic and might involve hijacked airliners; that, in the summer of 2001, at the insistence of the American Secret Service, anti-aircraft ordnance was installed around the city of Genoa, Italy, to defend against a possible terrorist suicide attack, by aircraft, against George W Bush, who was attending the economic summit there; and that George W Bush has nevertheless regaled audiences with his first thought upon seeing the "first" plane hit the World Trade Center, which was: "What a terrible pilot," is not "theory." It's fact. That, on the morning of September 11, 2001: standard procedures and policies at the nation's air defense and aviation bureaucracies were ignored, and communications were delayed; the black boxes of the planes that hit the WTC were destroyed, but hijacker Mohammed Atta's passport was found in pristine condition; high-ranking Pentagon officers had cancelled their commercial flight plans for that morning; George H.W. Bush was meeting in Washington with representatives of Osama bin Laden's family, and other investors in the world's largest private equity firm, the Carlyle Group; the CIA was conducting a previously-scheduled mock exercise of an airliner hitting the Pentagon; the chairs of both the House and Senate Intelligence Committees were having breakfast with the chief of Pakistan's intelligence agency, who resigned a week later on suspicion of involvement in the 9/11 attacks; and the commander-in-chief of the armed forces of the United States sat in a second grade classroom for 20 minutes after hearing that a second plane had struck the towers, listening to children read a story about a goat, is not "theoretical." These are facts. That the Bush administration has desperately fought every attempt to independently investigate the events of 9/11, is not a "theory." Nor, finally, is it in any way a "theory" that the one, single name that can be directly linked to the Third Reich, the US military industrial complex, Skull and Bones, Eastern Establishment good ol' boys, the Illuminati, Big Texas Oil, the Bay of Pigs, the Miami Cubans, the Mafia, the FBI, the JFK assassination, the New World Order, Watergate, the Republican National Committee, Eastern European fascists, the Council on Foreign Relations, the Trilateral Commission, the United Nations, CIA headquarters, the October Surprise, the Iran/Contra scandal, Inslaw, the Christic Institute, Manuel Noriega, drug-running "freedom fighters" and death squads, Iraqgate, Saddam Hussein, weapons of mass destruction, the blood of innocents, the savings and loan crash, the Bank of Credit and Commerce International, the "Octopus," the "Enterprise," the Afghan mujaheddin, the War on Drugs, Mena (Arkansas), Whitewater, Sun Myung Moon, the Carlyle Group, Osama bin Laden and the Saudi royal family, David Rockefeller, Henry Kissinger, and the presidency and vice-presidency of the United States, is: George Herbert Walker Bush. "Theory?" To the contrary. It is a well-documented, tragic and—especially if you're paranoid—terrifying fact. Michael Hasty is a writer, activist, musician, carpenter and farmer. His award-winning column, "Thinking Locally," appeared for seven years in the Hampshire Review, West Virginia's oldest newspaper. His writing has also appeared in the Highlands Voice, the Washington Peace Letter, the Takoma Park Newsletter, the German magazine Generational Justice, and the Washington Post; and at the websites Common Dreams and Democrats.com. In January 1989, he was the media spokesperson for the counter-inaugural coalition at George Bush's Counter-Inaugural Banquet, which fed hundreds of DC's homeless in front of Union Station, where the official inaugural dinner was being held.
Sadique Jaffer, a naturalized U.S. citizen, practicing Muslim and frequent traveler, said the government harasses and detains him every time he flies. The Zanzibar native allegedly appeared on the FBI's radar after he filed a defamation complaint in 2007 against "certain members of the local Shia Muslim community board." Jaffer said he is at odds with other members of his community because he is outspoken against those who would "use their faith as a political force." He allegedly agreed to cooperate with the FBI and report any threat, but quickly found himself repeatedly detained while re-entering the United States. At the first stop, in August 2007, Jaffer had reached Bush International Airport in Houston, Texas, on a return flight from Costa Rica. He claimed to have been detained for four hours, during which time he was deprived of food and water and verbally abused if he "so much as turned his head." Some time later, an FBI agent allegedly revealed that Jaffer's name was on the government's terrorist watch list. Jaffer said he wrote a letter to the Department of Homeland Security's redress program for traveler complaints, requesting the detentions stop. It went on for several months without resolution before the harassment stopped in 2009. But in June 2012, the secondary screenings and detentions resumed. Though U.S. District Judge Gregory Presnell noted that Jaffer has been detained more than 50 times since 2007, he dismissed the complaint Wednesday.
John Boles started out his career as a cryptologic technician in the Navy before rising through the ranks of the FBI to his current position: Deputy Assistant Director of the Bureau’s Cyber Division.
FBI Cyber Division Deputy Assistant Director
Cybersecurity, he added, “may well become [the FBI's] highest priority in the years to come.” It is currently the FBI’s third priority, after counterterrorism and counterintelligence.
Boles was named to the position in September, less than a year after becoming the special agent in charge of the Norfolk Division last February. He first joined the FBI in 1995 as a special agent in the Sacramento Division, where he investigated cyber crime, white collar crime and terrorism, among other things. He also became the leader of a sniper team and worked as a SWAT team operator in Sacramento.
National Security Agency Director Keith Alexander got caught by a hot mic after the public hearing on the NSA's Internet and phone data sweeps Tuesday.
"Tell your boss I owe him another friggin' beer," Alexander said to FBI deputy director Sean Joyce.
HuffPost's Michael McAuliff reported earlier on the hearing:
• Retired U.S. Navy lieutenant commander says he has evidence to prove friend is innocent
By Pat Shannan
Readers of AMERICAN FREE PRESS will remember the series of articles run on these pages in 2010-11 concerning the plight of the Monroe County, Tennessee man who tried to expose fraud in the local court and grand jury system. Instead, United States Navy Lieutenant Commander Walter Fitzpatrick (Ret.) found himself jailed for trying to perform a citizen’s arrest when the cops wouldn’t enforce their own laws.
According to the man who started it all, the following federal attack on him and Darren Huff of Dallas, Georgia, in the small Tenn. town of Madisonville, was just one more Federal Bureau of Investigation (FBI) provocation, and he now has the evidence to prove it.
“Darren Huff is an innocent man in jail for four years for a crime that never happened,” said Fitzpatrick.
When interested citizens came to Madisonville on April 20, 2010 for a court hearing on the Fitzpatrick matter, Huff was followed from north Ga. by the FBI, detained at the interstate exit by state and local law enforcement and released after agreeing to lock his legally-registered rifle and handgun in the toolbox of his pickup truck. No arrest was made and Huff proceeded peacefully into town. The police saw that the supporters were not there to provoke violence but to stand up for a fellow American who was being wronged by the system.
“The FBI saw it as another invitation to create a crime where none existed,” said Fitzpatrick. He proved his point with Special Agent Mark Van Balen’s sworn affidavit on April 26.
Even though video shows Huff being determined not to be a security risk by the Tenn. authorities and released, six days later Van Balen swore out an affidavit “full of lies and deception,” according to Fitzpatrick, including Huff’s alleged threats to “make arrests on various individuals, that he was ready to die for his rights and that if they didn’t have enough people on April 20 to do all they planned to do that day, that they would be back in one to two weeks.”
Huff has repeatedly denied making any such outrageous statements, and Van Balen even admits in his affidavit that he never heard anything provocative from Huff.
Van Balen claims that Huff was heard making threats at the traffic stop by a Lt. Don Williams of the Drug Task Force and these were passed on to him. Van Balen makes no claims of personal knowledge as to any lawbreaking by Huff. In fact, court testimony showed that Huff was under FBI surveillance from the night of April 19. Huff was followed when he left home at 4 a.m. and was watched all day. There was never a moment when the FBI did not know where Huff was during that 24-hour period, and he was never a threat to anyone.
Fitzpatrick told AFP that he has located and interviewed 31 of the 33 people known to have been on the scene that morning outside of the Monroe County courthouse. None of the 31 was armed or even saw anyone other than law enforcement officers armed. The other two were a Knoxville news reporter and cameramen who refused to identify themselves when Fitzpatrick asked them to do so.
Not one of the 31 citizens was approached and questioned by any of the 150 law enforcement officers on the scene as to whether or not they were armed. Fitzpatrick has collected statements from all 31. It was a peaceful assembly.
“Furthermore,” said Fitzpatrick, “Darren Huff not only was unarmed the whole time but he spent his morning at Donna’s Old Town Café across the street and the only time he briefly set foot on the courthouse property was to take sausage biscuits and coffee to officers standing there. However, my hearing was being held four blocks away at a separate courthouse building unknown to Huff, and he was never there.
“Federal officials not only successfully prosecuted and convicted a U.S. citizen for a thought crime,” added Fitzpatrick, “but the only one with the thought was the fantasizing FBI agent.”
Huff is more than a year into serving a four-year sentence at the Federal Correctional Institution in Texarkana, Texas. He is still waiting for his attorney, Gerald Gulley of Knoxville, to file his appeal. Gulley did not return AFP’s calls.
Fitzpatrick cites a little known FBI program known as “Operation Vigilant Eagle” that involves surveillance of veterans who express views critical of the government. This includes those who discuss a pending revolution on the Internet.
“Anybody in America who stands up for the rights of American citizens as outlined by the Constitution is being targeted and jailed by the federal government,” he said.
This case is significant and chilling because the FBI has prepared it to stifle dissent.
In their slick description of it on their website, they brag that “Huff was sentenced to four years in prison for transporting firearms across state lines with the intent to cause a civil disorder. It was the first time this violation was successfully prosecuted.”
Valerie Caproni, up for judgeship in important terrorism court, likely to come under fresh scepticism in wake of NSA revelations
A former senior FBI official implicated in surveillance abuses is poised to become a federal judge in one of the US's most important courts for terrorism cases.
Valerie Caproni, the FBI's top lawyer from 2003 to 2011, is scheduled to receive a vote on Monday in the Senate for a seat on the southern district court of New York.
Caproni has come under bipartisan criticism over the years for enabling widespread surveillance later found to be inappropriate or illegal. During her tenure as the FBI's general counsel, she clashed with Congress and even the Fisa surveillance court over the proper scope of the FBI's surveillance powers.
And Caproni faces renewed skepticism for describing surveillance conducted under the Patriot Act as more limited than it actually is, now that the Guardian has revealed and the Obama administration confirmed that the National Security Agency uses the act to collect and store the telephone records of hundreds of millions of Americans.
"It is a shame that the White House has chosen to nominate former FBI general counsel Valerie Caproni to a lifelong position as a federal judge given her narrow views of Americans' privacy rights as demonstrated by her actions in the George W Bush administration," said Lisa Graves, a Justice Department official in the Clinton and early Bush administrations.
"Government officials that secretly approved of overbroad surveillance programs the public is only seeing now because of leaks, and whose testimony on the issue obscured rather than revealed these abuses, should be held to account for their actions in a public forum," said Mike German, a former FBI agent.
German, now a lawyer with the ACLU, would not comment on Caproni specifically, citing ACLU policy of neutrality on nominations. But he continued: "Excessive secrecy always threatens democracy, but misleading and incomplete testimony before Congress and the courts simply cannot stand unaddressed without doing real damage to constitutional government."
A Senate staffer who requested anonymity predicted that Caproni would probably win confirmation, but added, "lots of procedural options are available to gum up the works" when her nomination moves to a Senate floor vote.
A representative of the defense company Northrop Grumman, where Caproni currently serves as an executive, said Caproni was not available for interviews.
Even before the Guardian's phone records revelations, provided by NSA whistleblower Edward Snowden, lawmakers found Caproni to be complicit in surveillance abuses.
A 2010 report by the Department of Justice's internal watchdog found that the FBI misused a type of non-judicial subpoena known as an "exigent letter" to improperly obtain more than 5,500 phone numbers of Americans.
"The FBI broke the law on telephone records privacy and the general counsel's office, headed by Valerie Caproni, sanctioned it and must face consequences," said John Conyers, then the chairman of the House judiciary committee, in April 2010, who called for then-FBI director Robert Mueller to fire her.
Conyers said he was "outraged" that the FBI invented "exigent letters" to more easily obtain phone records, and intimated Caproni was responsible for it. "It's not in the Patriot Act. It never has been. And its use, perhaps coincidentally, began in the same month that Ms Valerie Caproni began her work as general counsel," Conyers said in a hearing that month. The FBI stopped using exigent letters in 2006.
Lawmakers' dissatisfaction with Caproni over surveillance has a long pedigree.
In an April 2008 House hearing, Caproni told lawmakers that if a phone number obtained from a telephone company using a nonjudicial subpoena ostensibly authorized by the Patriot Act was unrelated to a "currently open investigation, and there was no emergency at the time we received the records, the records are removed from our files and destroyed".
In fact, the NSA, at the time of Caproni's testimony and today, stores phone records such as phone numbers on practically all Americans for up to five years, whether or not they are connected to an "open investigation".
Numerous intelligence, Justice Department and law enforcement officials have testified this summer that the NSA can pass phone records to the FBI that it has "reasonable articulable suspicion" are connected to terrorism, although NSA deputy director John C Inglis could not cite a single case where the phone records have clearly disrupted a domestic terror attack.
"Caproni knew that the Bush administration could use or was using the Section 215 provision in the Patriot Act to obtain Americans' phone records on a broad scale, an issue that has recently been documented by the whistleblower material first printed in the Guardian," said Graves, a former deputy assistant attorney general who dealt with Caproni extensively while working on national security issues for the ACLU.
At one meeting in 2007, Graves recalled, "Caproni said she thought civil libertarians were wasting their time complaining about the NSL [national security letter] powers because the government could just obtain all that information and more through a 215 order by the Fisa court or through a grand jury subpoena issued by a single federal prosecutor and because those orders are secret we would never know. When pressed about that, she insisted that going around the limits on the NSL powers by using 215 or grand jury subpoenas was no big deal and a perfectly permissible use of those powers."
Graves said: "That may be technically true, but it also demonstrates her lack of regard for Americans' countervailing interest not to have records about their communications or business transactions swept up in secret by government agencies without any indication that they themselves have done anything wrong."
In 2007, the Justice Department's inspector general found "widespread and serious misuse of the FBI's national security letter authorities" to obtain business records, including "unauthorized collection of telephone or internet email transactional records," as the inspector general, Glenn Fine, summarized in March 2007 House testimony. That finding did not even hint that the collection of phone records in secret was even more widespread.
Without disclosing the full scope of the surveillance, Caproni called the improper collection of those phone records "a colossal failure on our part".
Acknowledging bipartisan anger on the House judiciary committee, Caproni testified: "We're going to have to work to get the trust of this committee back, and we know that's what we have to do, and we're going to do it."
A 2008 Justice Department inspector general's report into surveillance under the Patriot Act found that Caproni clashed with the Fisa court, a secret court that oversees surveillance for the purposes of foreign intelligence, over the scope of the court's authority.
The heavily redacted report found that in 2006, the Fisa court indicated it would not sign off on an FBI request for business records under section 215 of the Patriot Act – the section used to justify the bulk phone-records database – "because of first amendment concerns." It is extremely rare for the Fisa court to deny the government a surveillance request.
Caproni, the FBI's general counsel at the time, "told the OIG [office of inspector general] that the Fisa court does not have the authority to close an FBI investigation," according to a footnote in the report.
Caproni "believed there was enough information to predicate the investigation", the Justice Department inspector general found. "She said she disagreed with the court and nothing in the court's ruling altered her belief that the investigation was appropriate."
Because of redactions, it is unclear if the FBI investigation in that case continued against the Fisa court's objection.
While Caproni's nomination by President Obama has largely flown under the Washington radar, it has not been without controversy. Senator Chuck Grassley, the ranking Republican on the Senate judiciary committee, threatened in June to block Caproni's impending judgeship when it goes for a vote on Monday.
Grassley had been seeking records from the FBI about the exigent-letters surveillance controversy for at least six years, only to be told by Caproni in 2008, when she was the FBI's top lawyer, that "that the documents I was waiting for were on her desk, awaiting her review", Grassley said on the Senate floor June 13.
Having not received the documents he wanted, Grassley warned: "While I did not hold Ms Caproni's nomination in committee, I reserve my right to do so on the Senate floor." Grassley's office did not return requests for comment about his plans for Caproni's floor vote.
In order to win approval from the Senate judiciary committee, Caproni had to take the rare step of vowing to recuse herself from a broad category of cases "where my impartiality could be reasonably questioned", including those where "I had personal or supervisory involvement in a matter while at the FBI."
"I would certainly recuse myself if I were presented with a case that would require me to rule on the legality of a national security program as to which I provided legal advice while I was a government employee, unless there was controlling precedent already in place regarding such a program," Caproni wrote to senator Richard Durbin on 8 July.
Caproni will be very likely to hear many of those cases as a federal judge. Her nomination is for one of the country's most important federal courts for terrorism cases: the southern district court of New York.
"The southern district of New York has historically been the premier venue for terrorism cases. Today, many of the most high profile of these cases continue to find their way into this district court. Its historical memory, and the experience of its judges, are second to none," said Karen Greenberg, director of Fordham University's Center on National Security.
"For all of her virtues, you have to think twice about putting someone on the court with this level of concern about her role in surveillance abuses," Greenberg said. "The symbolism of this is significant. The courts are torn over this issue."
by William Boardman / October 19th, 2013
[Note: Since the lifting of the federal court gag order on October 2, Ladar Levison and his company, Lavabit, have been getting some media attention (including a somewhat snide and incomplete story on page one of the New York Times). What follows in an effort to reconstruct at least the outline of a personal nightmare inflicted by our government on a small business owner who had done no wrong, even in the government’s eyes – at least until he started taking his constitutional rights seriously.]
The Fourth Amendment of the U. S. Constitution is anti-police-state
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” [emphasis added]
The founding document of the United States is inherently suspicious of a government’s willingness to abuse its powers, a suspicion rooted in centuries of tyranny around the world. Even the U.S. government, as well as state and local governments, have abused their powers from time to time since the country’s beginning. The drift toward an American police state intensified under the guise of anti-Communism, but that was mostly a convenient cover for state intrusion into people’s lives. The Soviet Union collapsed, but the nascent American police state kept growing. The Patriot Act of 2001, a massive assault on personal and political liberty, was largely written before 9/11 and passed, largely unexamined, in the hysterical atmosphere and raw panic of that over-hyped “new Pearl Harbor.”
Now we have a police state apparatus of almost unimagined dimension, most of which is kept secret and remains unknown, despite the efforts of a few reporters and whistle blower, who tell the truth at their personal peril.
The “American police state” is likely an abstraction in the minds of many people, and as long as they remain unknowing and passive, it’s likely to leave them alone. But even law-abiding innocence is not a sure protection of a person’s right to be secure. And when the police state comes after you in one of its hydra-headed forms, the assault can be devastating.
For starters, the state won’t always tell you when it begins
The intrusion of the police state into your life can shatter your world even before you realize it’s begun. Fight it, or surrender to it, the cost is huge. Recovery may be possible, eventually, if it’s ever allowed, but it will be hard, and it will take time.
In May 2013, Ladar Levison was 32 when the police state first came after him. The dreaded “knock on the door” was actually only an FBI business card on his door at home. And Levison’s initial interactions with the FBI were reportedly mild and civil, at first by email and later in person. The FBI was interested in Levision because he owned and operated a secure email service called Lavabit. From the FBI point of view, Lavabit was too secure, because the NSA and the rest of the security state couldn’t get into it.
Right out of college, Levison had started Lavabit as a sole proprietorship in April 2004 (the same month Google launched Gmail at a much greater scale). Having grown up in San Francisco, Levison studied computer science at Southern Methodist University in Dallas, where he still lives. While working on his start-up, he supported himself mostly with internet security projects for financial services. He also worked as a consultant on website development for clients such as Dr Pepper, Nokia, and Adidas.
What Lavabit was selling was secure email, much more secure than anything Google, Microsoft, or most other email providers were offering. The demand was not that great at first. It took six years for Lavabit to gather enough paying subscribers to allow Levison to devote himself to the business fulltime in 2010. Even when the FBI became interested in Lavabit in May 2013, it was still a small company, with two employees and about 400,000 subscribers. But one of those subscribers was another American about Levison’s age, 30-year old Edward Snowden, the whistleblower whose leaked documents have added so much to our understanding of the dimensions and activities of the American police state. Snowden opened his moc.tibaval@nedwonsde email account in 2010.
Political repression may not be the government’s overt intent, but it works
At this point, there’s no indication that Levison and Lavabit ever had anything but a commercial relationship with Snowden. It’s even possible that Snowden had nothing to do with the FBI’s initial interest in Lavabit. It may be that Lavabit’s effective security was sufficient offense to the surveillance forces to make it an object of attack for its own sake. In May 2013, Levison says he had the impression the FBI agents who talked to him didn’t even know who or what was the subject of their investigation. The FBI hasn’t said.
Levison is not an obviously political person, he hasn’t been revealed to be involved in party politics or political causes. “Until last summer, Mr. Levison, a Republican of libertarian leanings, had not been active in politics,” according to the New York Times October 9. He seems to be the person he seems to be: a thoughtful, hardworking, physically fit, computer business guy who has had a dog named Princess since January 2010 and who spends a lot of his spare time keeping in shape playing beach volleyball.
Princess has her own album on his Facebook page, where the dominant theme by far is Levison’s competition in beach volleyball (with albums for Sunday Night, as well as Monday, Tuesday, Wednesday, and Thursday Nights) and there is one picture of Levison with Rep. Ron Paul. Levison’s page shows membership in just one Facebook group, “OCCUPY (Support) EDWARD SNOWDEN and All Other Whistleblowers,” to which someone else added him about two months ago. Among his 43 “Likes,” Levison lists two Interests (programming and computers), lots of volleyball Activities, and six books, including William Gibson’s Neuromancer, George Orwell’s 1984, and Dostoevski’s Crime and Punishment.
From another perspective, Levison is as political as the Fourth Amendment, which is as profoundly political as it gets. It was the Patriot Act’s assault on the Fourth Amendment, Levison says, that contributed to his decision to start Lavabit in 2004, when the act was up for renewal and much in the news. Among the many objections to the act was that it gave to federal agents excessive authority to, in effect, write their own search warrants on no other authority but their own. In the Orwellian language of the act, these personal searched warrants are known as “national security letters.” Levison designed the security architecture of the Lavabit email and storage services to be beyond the reach of unwarranted searches, even in national security letters. As Levison recalled on Democracy Now! in August:
“And as I was designing and developing the custom platform, it was right around when the PATRIOT Act came out. And that’s really what colored my opinion and my philosophy, and why I chose to take the extra effort and build in the secure storage features and sort of focus on the privacy niche and the security focus niche…. [for] people who want email but don’t necessarily want it lumped in and profiled along with their searches or their browsing history or any of their other Internet activities.”
You can’t reveal what you don’t know – and that provides more security
During May 2013, Levison met for “a couple hours” with FBI agents at his office, where he explained how his security system and his business operated. As Levison told Democracy NOW! the service included his personal pledge of security:
“I’ve always liked to say my service was by geeks, for geeks. It’s grown up over the last 10 years, it’s sort of settled itself into serving those that are very privacy-conscious and security-focused. We offered secure access via high-grade encryption. And at least for our paid users, not for our free accounts—I think that’s an important distinction—we offered secure storage, where incoming emails were stored in such a way that they could only be accessed with the user’s password, so that, you know, even myself couldn’t retrieve those emails.
“And that’s what we meant by encrypted email. That’s a term that’s sort of been thrown around because there are so many different standards for encryption, but in our case it was encrypted in secure storage, because, as a third party, you know, I didn’t want to be put in a situation where I had to turn over private information. I just didn’t have it. I didn’t have access to it.”
Over the years, Lavabit has received and complied with “at least two dozen subpoenas” from the local sheriff’s office to the federal courts, Levison says, “I’ve always complied with the law.” Each of those subpoenas targeted a specific individual and appeared to Levison to be consistent with the Fourth Amendment. As recently as June 2013, he complied with an unrelated subpoena seeking information on one of his subscribers accused of violating child pornography law.
A secret subpoena from the American police state is different
On June 6, 2013, the Guardian began publishing surveillance state revelations based on documents from Edward Snowden, the Lavabit.com email subscriber. On June 9, Snowden revealed that he was the whistlblower who leaked documents to the Guardian and others. The first secret court order against Lavabit came the next day.
On or about June 10, the Justice Dept., on behalf of the FBI, went to federal court to compel Lavabit to provide information “relevant and material to an ongoing criminal investigation” involving someone with a single Lavabit email account. The FBI has not identified the subject of this investigation, but it is widely believed to be Snowden.
The United States District Court for the Eastern District of Virginia (the Fourth Circuit) granted the FBI’s request and issued the disclosure order against Lavabit that same day. A one-page, single-spaced attachment to the order listed the categories of information to be disclosed, including names, addresses, phone records, other subscriber identities, billing records, activity records, and “information about each communication” – in other words, everything about the email account “not including the contents of communications.” The order did not mention encryption keys, SSL keys, or the like. These are closely guarded secrets in a security business like Lavabit.
The U.S. Magistrate Judge who signed the initial order gave Lavabit 10 days to comply. He also sealed the court records from public view and further ordered that Lavabit “shall not disclose the existence of the application of the United States, or the existence of this order” to anyone except “an attorney for Lavabit.” In other words, Levison was subject to a gag order before he ever found out the FBI was definitely coming after him.
In the meantime, on June 14, the Justice Dept. filed a sealed criminal complaint against Snowden, who was then in Hong Kong. The government accused him of three offenses – theft of government property and two forms of “unauthorized communication” the Espionage Act of 1917. The criminal complaint, which was made public a week later, gave the government 60 days to file a formal indictment.
Getting unsatisfying compliance, the FBI decided to raise the stakes
According to a later Justice Dept. filing: “Mr. Levison received that order on June 11, 2013. Mr. Levison responded by mail, which was not received by the government until June 27, 2013. Mr. Levison provided very little of the information sought….” [emphasis added]
On June 28, the day after getting Levison’s belated response to the June 10 order, the Justice Dept. went back to the Fourth Circuit Court in Alexandria seeking an order “authorizing the installation and use of a pen register/trap device on an electronic mail account” – an FBI wiretap on email. Levison had no notice of the government motion and no opportunity to contest it. A new judge on the case, Magistrate Judge Theresa Buchanan, promptly ordered the wiretap installed on the basis that the government “has certified that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation….” Like the first order, this order did not mention encryption keys, SSL keys, or the like.
FBI special agents met with Levison in Dallas the same day to discuss the new order, which Levison had not yet received, as well as a prior summons to appear before a grand jury. The agents presumably explained to Levison that the court had issued a secret order based on a secret motion, itself based on secret evidence (or none at all) and that Levison was not only compelled to comply but was also still under court order to keep the whole secret process a secret, this time with no exception even for his attorney.
According to a later government filing, “Mr. Levison told the agents that he would not comply with the pen register order and wanted to speak to an attorney. It was unclear whether Mr. Levison would not comply with the order because it was technically not feasible or difficult or was not consistent with his business practice of providing secure, encrypted email service for his customers.”
As Levison months later explained to reporters about Lavabit: “We’re wholly focused on secure email. Without it, we have no business.” In Levison’s view, breaking Lavabit’s security without the right to tell his customers would have been to commit commercial fraud.
Judge Buchanan keeps the pressure on Levison and Lavabit
Following this meeting, the Justice Dept. immediately went before Judge Buchanan seeking an order to compel Lavabit to comply with the other Magistrate’s earlier order and install the FBI wiretap and to “furnish agents from the Federal Bureau of Investigation, forthwith, all information, facilities, and technical assistance necessary to accomplish the installation and use of the pen/trap device…” as ordered pursuant to federal law [U.S. Code, Title 18, sec. 3123].
Judge Buchanan immediately granted the “Order Compelling Compliance Forthwith,” based in part on her findings that “Lavabit informed the Federral Bureau of Investigation that the user of the account had enabled Lavabit’s encryption services and thus the pen/trap device would not collect the relevant information” and that “Lavabit informed the FBI that it had the technological capability to obtain the information but did not want to ‘defeat [its] own system’…”
Judge Buchanan ordered Lavabit to provide “unencrypted data pursuant to the Order.” Noting that failure to comply “forthwith” would subject Lavabit to “any penalty within the power of the court,” Judge Buchanan added in her own handwriting, “including the possibility of criminal contempt of court.” This order was issued under seal.
Previously, Levison faced the possibility of being fined for civil contempt if he failed to comply. Now he also faced going to jail. And the court’s most recent orders, in their plain language, prevented Levison from discussing his situation with anyone, not even an attorney.
According to the FBI, agents “made numerous attempts, without success, to speak and meet directly with Mr. Levison” during the next ten days. On July 9, the Justice Dept. returned to the Fourth Circuit court seeking an order for Lavabit to show cause why it “has failed to comply with the orders entered June 29” by Magistrate Buchanan, and why Lavabit should not be held in contempt of court for its failure to comply.
Judge Hilton decides a hearing with the parties present might help
Judge Claude Hilton issued the show cause order the same day, including a summons for Lavabit to appear at a hearing a week later. Judge Hilton is a secrecy case veteran, having served on the secretive FISA (Foreign Intelligence Surveillance Act) court from 2000 to 2007. The Judge continued to keep the Lavabit case under seal, but reinstated Lavabit’s exception to the gag rule when consulting with an attorney.
The next day, Levison went to the FBI field office in Dallas for a meeting/conference call that included prosecutors and FBI agents in Washington and his attorney in San Francisco, convened “to discuss Mr. Levison’s questions and concerns… [that] focused primarily on how the pen register device would be installed on the Lavabit LLC system, what data would be captured by the device, what data would be viewed and preserved by the government… [and] whether Mr. Levison would be able to provide ‘keys’ for encrypted information.”
The parties did not reach an agreement at the meeting and the next day, July 11, Levison’s attorney informed the FBI that she no longer represented Levison or Lavabit. The same day, Levison “indicated that he would not come to court [for the July 16 show cause hearing] unless the government paid for his travel,” according to a government filing.
Rather than engage in a dispute over travel expenses, the FBI served Levison with a subpoena to appear before a Fourth Circuit grand jury, also on July 16. The government is responsible for the travel arrangements of grand jury witnesses, and the FBI so advised Levison by email. The grand jury subpoena left little wriggle room in its effort to force Lavabit to surrender the encryption keys that were essential to its business:
“In addition to your personal appearance, you are directed to bring to the grand jury the public and private encryption keys used by lavabit.com in any SSL (Secure Socket Layer) or TLS (Transport Security Layer) sessions, including HTTPS sessions with clients using lavabit.com website and encrypted SMTP communications (or Internet communications using other protocols) with mail servers;
“Any other information necessary to accomplish the installation and use of the pen/trap device ordered by Judge Buchanan on June 28….”
“I don’t trust you, but you should trust me” and vice-versa
Levison responded on July 13 with an email to the U.S. Attorney’s office, offering an alternative to the FBI-operated wiretap. Levison proposed that he would collect the court-designated data himself. While he didn’t state it in the email, this would address one of Levison’s primary concerns, that there was no effective oversight to prevent the FBI from gathering more data than the court had allowed. Levison proposed to design and implement the solution, gather the data manually, and provide it to the FBI at the end of the 60-day court order – for a price of $2,000. For another $1,500, he offered to provide data “more frequently,” which would require implementing an automated system.
The U.S. Attorney chose not to explore the offer. In a brusque and internally contradictory reply email the same day, an assistant U.S. Attorney explained “that the proposal was inadequate because, among other things, it did not provide for real-time transmission of results, and it was not clear that Mr. Levison’s request for money constituted the ‘reasonable expenses’ authorized by the statute.” The government later admitted to the court that it was “unclear” as to precise details of the proposal. The clear implication of Levison’s proposal is a willingness to provide real-time transmission for reasonable compensation. But that would leave Levison in control. The government didn’t consider that a useful compromise.
On July 15, Levison flew to Washington for his show cause hearing at 10 the next morning, although he thought it was set for 10:30 and arrived late. He was appearing pro se, representing himself without an attorney.
Even a federal court hearing can be a comedy of errors
The government goal for the July 16 hearing remained unchanged: “Lavabit LLC may comply with the pen register order by simply allowing the FBI to install the pen register devise and provide the FBI with the encryption keys.” Lacking compliance, the government asked the court to impose a civil contempt sanction of $1,000 a day until Lavabit complied.
The government also requested a search warrant for the encryption keys. Judge Hilton granted the search warrant before the hearing began.
As it turned out, the 20-minute hearing resulted in no change in the legal standing of the parties, but did produce a transcript with moments of unintentional hilarity.
Present in the courtroom were Judge Hilton and the court staff. U.S. Attorney James Trump represented the government, along with three other lawyers and an FBI agent. Levison was alone.
The U.S. Attorney wanted to know if Levison was going to comply with the wiretap order, but Judge Hilton wouldn’t ask and Levison wouldn’t say. Or rather, Levison said he had always been ready and willing to comply with installation of the wiretap, but he was reluctant to give up the encryption codes, which would give the FBI access to all 400,000 of his subscribers even though the court order named only one. “There was never an explicit demand that I turn over those keys,” Levison said.
The U.S. Attorney argued that Judge Buchanan had effectively if not specifically ordered Levison to turn over the encryption keys. Judge Hilton wasn’t touching that: “I’m not sure I ought to be enforcing Judge Buchanan’s order.” Judge Hilton said that his order was to install the wiretap and Levison had said he’d do that, so – “You’re trying to get me to deal with a contempt before there’s any contempt, and I have a problem with that.”
Levison moved to unseal all but the sensitive information in the proceedings. Judge Holton denied the motion, based on the underlying criminal investigation. Levison asked the judge to order “some sort of external audit to ensure that your oders are followed to the letter” as to FBI data collection. The judge refused. Levison moved to continue the hearing to allow him to retain counsel. Judge Hilton granted the continuance.
Levison and Lavabit get legal representation from a Virginia firm
Levison’s new attorney is Jesse Binnall of Bronley & Binnall PLLC in Fairfax, Virginia. Binnall, 34, was a communication major at George Mason University and graduated from the Law School there in 2009. Binnall and Levison would later be among the first guests on the New Ron Paul Channel in mid-August.
On July 25, Binnall filed under seal a “Motion to quash” the outstanding grand jury subpoena and the search warrant against Lavabit. The motion requested “that this Court direct that Lavabit does not have to produce its Master Key. Alternatively, Lavabit and Mr. Levinson request that they be given an opportunity to revoke the. current encryption key and reissue a new encryption key at the Government’s expense. Lastly, Lavabit and Mr. Levinson request that, if they are required to produce the Master Key, that they be reimbursed for its costs which were directly incurred in producing the Master Key….”
In support of his motion, Binnall made a number of arguments against the actions of the government, which had not faced serious legal opposition up to this point.
Binnall pointed out that giving the government access to Lavabit’s Master Key is tantamount to giving the government access to all of Lavabit’s 400,000 users. That amounts to a general warrant that is unconstitutional, Binnall wrote, and:
“It is axiomatic that the Fourth Amendment prohibits general warrants [with Supreme Court cases cited]…. The Fourth Amendment’s particularity requirement is meant to ‘prevent the seizure of one thing under a warrant describing another’ [citation omitted]. This is precisely the concern with the Lavabit Subpoena and Warrant and, in this circumstance, the particularity requirement will not protect Lavabit. By turning over the Master Key, the Government will have the ability to search each and every ‘place,’ ‘person [and] thing’ on Lavabit’s network…. Additionally, the Government has no probable cause to gain access to the other users accounts.”
The government seemed unconcerned about Levison’s business survival
Bindall also argued that the court should quash the subpoena and search warrant as creating an “undue burden” on Lavabit as defined by law [U.S. Code Title 18, sec. 2703]:
“Not only has Lavabit expended a great deal of time and money in attempting to cooperate with the Government thus far, but, Lavabit will pay the ultimate price –the loss of its customers’ trust and business – should the Court require that the Master Key be turned over. Lavabit’s business, which is founded on the preservation of electronic privacy, could be destroyed if it is required to produce its Master Key.”
Also on July 25, Binnall filed a motion to unseal court records and to lift the gag order on his client, since the “gag order infringes upon freedom of speech under the First Amendment, and should he subjected to constitutional case law. “
Unsurprisingly, the U.S. Attorney filed a motion in opposition.
At the motion hearing on August 1, Judge Hilton engaged in lengthy colloquy with attorney Binnall. Before the 25-minute hearing was half over, the judge had denied both motions and the U.S. Attorney had said little more than “Good morning.” Judge Hilton gave Levison and Lavabit until 5 p.m. Dallas time on August 2 to comply.
Levison’s compliance took an unexpected form
The next day in Dallas, at about 1:30 p.m., Levison provided information that purported to be full compliance with the court’s orders. Whether it was actual compliance remains uncertain. The government was not happy and engaged with attorney Binnall to achieve satisfactory compliance, without success. On August 5 the government filed a motion for sanctions against Levison, calling his apparent compliance “unworkable” and describing it as follows:
“Mr. Levison gave the FBI a printout of what he represented to be the encryption keys needed to operate the pen register. This printout, in what appears to be 4-point type, consists of 11 pages of largely illegible characters. See Attachment A. (The attachment was created by scanning the document provided by Mr. Levison; the original document was described by the Dal!as FBI agents as slightly clearer than the scanned copy but nevertheless illegible.) Moreover, each of the five encryption keys contains 512 individual characters — or a total of 2560 characters. To make use of these keys, the FBI would have to manually input all 2560 characters, and one incorrect keystroke in this laborious process would render the FBI collection system incapable of collecting decrypted data.”
When this compliance effort became public two months later, TechCrunch called it “an epic troll.” At the time, the government was not amused and called for the court to sanction Levison $5,000 a day, beginning at noon August 5. The court promptly granted the motion, while reminding the parties that all aspects of the matter remained under seal. Known only to the participants and some court employees, the case was still unknown to the public.
Levison makes a tantalizing public announcement
That secrecy ended on August 8, when Ladar Levison shut down Lavabit, posting a short notice on the Lavabit.com website, together with a link to the Lavabit Legal Defense Fund. As Levison explained:
“I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on – the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.
“What’s going to happen now? We’ve already started preparing the paperwork needed to continue to fight for the Constitution in the Fourth Circuit Court of Appeals. A favorable decision would allow me resurrect Lavabit as an American company.
“This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.”
Also on August 8, Levison fully complied with the Fourth Circuit courts orders, turning over the encryption keys to a now defunct service. He had incurred 2 days of sanctions – owing the government $10,000 – which remains pending.
The next day, Silent Circle, a global encrypted communications service, stayed in business but preemptively wiped out its email service (about 5 per cent of its customers) in anticipation of a government request that the company wouldn’t want to have to obey. “Meanwhile, Silent Circle is working on replacing its defunct e-mail service with a system that doesn’t rely on traditional e-mail protocols and keeps no messages or metadata within the company’s grasp. It is based on a protocol often used for instant messages and other applications. [CEO Mike] Janke says the goal is for this to not be e-mail, but ‘for all intents and purposes it looks, feels, and acts like e-mail,’” according to MIT Technology Review.
Lavabit’s closing drew some news coverage over the next week, but any story was hampered by the gag order that severely limited what Levison and Binnall could safely say. As Levison told Forbes the day after shutting down Lavabit:
“This is about protecting all of our users, not just one in particular. It’s not my place to decide whether an investigation is just, but the government has the legal authority to force you to do things you’re uncomfortable with….The fact that I can’t talk about this is as big a problem as what they asked me to do…. The methods being used to conduct those investigations should not be secret.”
The FBI and the Justice Dept. Have not commented publicly about the Lavabit case beyond their court filings.
Being secret, federal court appeal gets no news coverage
On August 15, Lavabit attorney Binnall filed notice – under seal – that he was appealing the federal district court’s rulings of August 1 and August 5 to the United States Court of Appeals for the Fourth Circuit. In other words, the government can not only keep the public ignorant of what it’s doing, it can also prevent the public from knowing that anyone objects to the government’s actions as unconstitutional.
In the Lavabit case, at least, this changed abruptly on October 2, when Judge Claude Hilton ordered a censored version of 23 documents (162 pages) made public. The redactions in these documents appear, from context, to be intended mostly to conceal details of the criminal investigation into Snowden or some other lavabit.com user. Since the unsealing of the court documents, news coverage had expansed, and Levison and Binnall have appeared in public across the country to argue their cause. As Levison put it on his Facebook page October 2:
“If the Obama administration feels compelled to continue violating the privacy rights of the masses just so they can conduct surveillance on the few then he should at least ask Congress for laws providing that authority instead of using the courts to force businesses into secretly becoming complicit in crimes against the American people.”
On 2005, a U.S. Senator addressed a similar concern, when Congress was about to pass a law creating the “national security letter,” a secret government process much more intense and unforgiving what Levison went through last summer:
“This is legislation that puts our own Justice Department above the law. When national security letters are issued, they allow federal agents to conduct any search on any American, no matter how extensive, how wide-ranging, without ever going before a judge to prove that the search is necessary. All that is needed is a sign-off from a local FBI agent. That’s it.
“Once a business or a person receives notification that they will be searched, they are prohibited from telling anyone about it, and they’re even prohibited from challenging this automatic gag order in court. Even though judges have already found that similar restrictions violate the First Amendment, this conference report disregards the case law and the right to challenge the gag order.
“If you do decide to consult an attorney for legal advice, hold on. You will have to tell the FBI that you’ve done so. Think about that. You want to talk to a lawyer about whether or not your actions are going to be causing you to get into trouble. You’ve got to tell the FBI that you’re consulting a lawyer. This is unheard of. There is no such requirement in any other area of the law. I see no reason why it’s justified here.
“And if someone wants to know why their own government has decided to go on a fishing expedition through every personal record or private document, through the library books that you read, the phone calls that you’ve made, the emails that you’ve sent, this legislation gives people no rights to appeal the need for such a search in a court of law. No judge will hear your plea; no jury will hear your case. This is just plain wrong.”
The question is: how much of a police state do we have already?
That Senator was concerned eight years ago, and that Senator was Barack Obama. Today, national security letters are part of the law of the land, the Obama administration uses them, and if you get one, talking about it is against the law. In that context, since Ladar Levison apparently did not get a national security letter, he was lucky. The country, not so much.
On October 10, in the United States Court of Appeals for the Fourth Circuit, Lavabit filed the opening brief of its appeal of the lower court’s orders. The United States has until November 4 to file its answer. This will take awhile, it will take effort to follow, but it matters.
William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences. This article was first published in Reader Supported News. Read other articles by William.
ALBANY, N.Y. • New York’s attorney general has asked a state judge to release sealed documents about the 1971 riot and retaking of Attica state prison in an effort to reveal the full history of the nation’s bloodiest prison rebellion and answer the questions of families whose loved ones died there.
HORROR: Report Links U.S. Special Forces To War Crimes
“In the fall of 2012, a team of American Special Forces arrived in Nerkh, a district of Wardak province, Afghanistan, which lies just west of Kabul and straddles a vital highway. The members installed themselves in the spacious quarters of Combat Outpost Nerkh, which overlooked the farming valley and had been vacated by more than 100 soldiers belonging to the regular infantry. They were U.S. Army Green Berets, trained to wage unconventional warfare, and their arrival was typical of what was happening all over Afghanistan; the big Army units, installed during the surge, were leaving, and in their place came small groups of quiet, bearded Americans, the elite operators who would stay behind to hunt the enemy and stiffen the resolve of government forces long after America’s 13-year war in Afghanistan officially comes to an end.http://www.rollingstone.com/feature/a-team-killings-afghanistan-special-forces
But six months after its arrival, the team would be forced out of Nerkh by the Afghan government, amid allegations of torture and murder against the local populace. If true, these accusations would amount to some of the gravest war crimes perpetrated by American forces since 2001. By February 2013, the locals claimed 10 civilians had been taken by U.S. Special Forces and had subsequently disappeared, while another eight had been killed by the team during their operations.
“They’re venomously anti-American there,” one U.S. official says. “It’s always been that way. Sometimes our adversaries are the men and women of a community.”
The San Diego regional planning agency, SANDAG, has been quietly rolling out a new mobile face recognition system that will sharply change how police conduct simple stops on Americans. The system, which allows officers to use mobile devices to collect face images out in the field, already has a database of 1.4 million images and serves nearly 25 federal, state and local law enforcement agencies in the region.
Over the summer, EFF sent a California Public Records Act request to SANDAG for more information on the program. From the records we received, we’ve learned that the program, called “TACIDS” (Tactical Identification System), serves law enforcement agencies as diverse as the San Diego Sheriff’s Department, the DEA, ICE, the California Highway Patrol and even the San Diego Unified School District. The officers use a Samsung tablet or Android mobile phone to take a picture of a person “in the field” and run that picture against databases of mugshot photos and DMV images from across several states to learn his or her identity. According to users, the system returns high-accuracy results in about eight seconds.
The Center for Investigative Reporting published an in-depth report on the program today, based in part on research conducted by EFF and the ACLU of San Diego and Imperial Counties.
The devices are supposed to be issued to “terrorism liaison” officers, but none of the documentation so far has shown any nexus between TACIDS use and terrorist activities. A chart we received (to the left) shows that, as of July 2013, there were 133 TACIDS-enabled mobile devices out in the field. While the San Diego County Sheriff’s Department had the most devices (55) and had made the most queries to the system (1,280), it was not the most proportionally active user. That honor went to the San Diego State University PD – the department only had one device (and presumably only one user of that device) but used it to make nearly 200 queries.
CIR obtained more recent numbers that show the program has since expanded by another 45 devices, with a total of 5,629 queries since TACIDS launched. Even the California Department of Insurance and the Del Mar Park Rangers now have mobile facial-recognition devices.
One of the most concerning aspects of the system is that TACIDS allows officers to upload photos to its database right from the field. This means that officers can stop a person on the street, take her picture, and enter that picture in a biometric database based on little or no suspicion.
One anecdote in an official report from an Immigration and Customs Enforcement officer was particularly chilling:
“Today while conducting warrant services in Oceanside, we made contact with the neighbors of a subject we were looking for. As we were talking to the individuals who lived next door, our "spidy senses" were tingling. So this neighbor became the focus of a field interview. The subject was being evasive answering our questions. It was determined that the subject was in the United States illegally so we arrested him for that. I decided to transport the subject downtown, still not knowing exactly who I had in custody. While driving him to jail, I prodded a little more and the subject stated that in 2003 he received a conviction for DUI in San Diego and that was the ONLY time he was arrested. So I whipped out the Droid and snapped a quick photo and submitted for search. The subject looked inquisitively at me not knowing the truth was only 8 seconds away. I received a match of 99.96%. This revealed several prior arrests and convictions and provided me an FBI #. When I showed him his booking photo, his jaw dropped. Thanks again for the opportunity to evaluate this device.”
A TACIDS draft policy document shows that officers may collect face images in three distinct circumstances—each of which is problematic in its own right. First, officers may take photos of a person who “consents” to have his picture taken. The Supreme Court has said in several cases that if a person answers police questions when he should feel “free to leave,” the encounter is “consensual,” and it doesn’t trigger Fourth Amendment protection—even under circumstances where police conduct is such that no reasonable person would actually feel free to leave (such as when the cops block an exit or show their weapons). Based on laudatory comments about the TACIDS system like the one above, it appears officers are exploiting that perception to use TACIDS to identify people who aren’t under reasonable suspicion.
In the second scenario discussed in the draft policy, officers may collect a face image from anyone “lawfully detained.” In 2004, the Supreme Court upheld a Nevada law requiring people to identify themselves to police officers. The court held that as long as those stops were based on reasonable suspicion of criminal activity, they, too, did not trigger Fourth Amendment (or Fifth Amendment) protections. Stopping someone to take their picture to “identify” them would likely receive the same treatment under the Court’s analysis. However, as we’ve seen in the recent revelations about New York’s stop and frisk program, an overwhelming majority of these types of stops are not actually based on any objective reason to suspect a person of wrongdoing. And the NYPD’s own reports show that these programs overwhelmingly impact minority groups.
The third scenario contemplated by the policy is the most concerning. In that scenario, the cops are allowed to collect photos of people with whom they are not even in contact. This includes photos from security cameras and social media as well as “the capturing of facial images from a distance as part of surveillance operations.” As we discussed in our testimony to Congress on facial recognition last year, taking a person’s photo and entering it into a biometric database without her knowledge can have a serious chilling effect on First Amendment-protected activities. The Supreme Court has long recognized the societal value in the ability to remain anonymous and the ability to associate with others privately without fear that the government is watching. Using face recognition technology in the way proposed by SANDAG destroys this anonymity and puts everyone under the threat of government surveillance.
Although the draft policy includes some measures intended to protect privacy, these measures do not go far enough. For example, the policy explicitly allows face image collection based on First-Amendment protected activities like an “individual’s political, religious, or social views, associations or activities” as long as that collection is limited to “instances directly related to criminal conduct or activity.” But “criminal conduct or activity” is such a vague concept that it places no effective restrictions on police action. As we’ve seen in the ACLU of Northern California’s case challenging California’s DNA collection law, even peaceful political protests can result in arrest and biometric collection.
Not so long ago, our society would have recoiled from this type of stop and search. As an Arizona Supreme Court justice noted in 1983, “[t]he thought that an American can be compelled to 'show his papers' before exercising his right to walk the streets, drive the highways or board the trains is repugnant to American institutions and ideals.” In 1990, the Florida Supreme Court said police questioning based on no individualized suspicion was “foreign to any fair reading of the Constitution” and compared it to “Hitler's Berlin,” “ Stalin's Moscow,” and “white supremacist South Africa.” It’s disheartening to think how much has changed in the last 23 years and especially in the years since 9/11.
We hope that San Diego residents will push back on TACIDS before the program is rolled out to additional devices and agencies and linked to fixed video cameras in court buildings and on public transportation. We also hope that Americans across the country will question whether the impact of this type of technology on Constitutionally-protected activities is worth the huge cost and the minimal benefit to law enforcement from its use.
December 8, 2013
Palantir, the big data miner that provides services to the FBI, CIA, and many Wall Street firms, is looking like a rocket ship these days. The company is expected to announced a new round of funding this week that will value the company at $9 billion, The Wall Street Journal reports. That's a 50 percent increase from September, when Palantir was valued at $6 billion.
What accounts for the company's fast ascent? Some skeptics say it's the frothy funding environment where Dropbox is aiming for an $8 billion valuation and Pinterest is looking at a $3.8 billion one. However, Palantir's ability to cross-reference large sets of data is increasingly crucial as large caches of data become more and more common.
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